Outline - 05.09 Crim

Criminal Law – Outline
As of 5/9/19
CRIMINAL LAW, GENERALLY

Felony: a serious crime, usually punishable by imprisonment of 1+ year or death sentence
Misdemeanor: criminal offense less serious than a felony, usually punishable by imprisonment of <1 year or fine
Violation: minor breach of the law, usually punishable by a fine
General policy / principles –

 Each crime is different and each JD will have differing views on the crime itself, the social harm it causes, and the
theories of punishment
 Watch out for issues of race
o eg, wrongfully witness testimony article (NYT 2000) – cross racial identification is really unreliable area;
the witness here was certain she had identified the man who raped her but it turns out she was wrong
o DON’T OVERLOOK BIAS, either explicit or implicit
o See generally collateral consequences
SOURCES OF CRIMINAL LAW

 Most criminal law is rooted in English common law that then developed into state doctrines of common law that was
eventually codified – but today, main source is statutes which are supplemented by case law
 State law: States have police power over their citizenry and can create statutes aimed at protecting the general welfare
of society and enforcing certain behavioral norms
o For this reason, judicial interpretation is very important! – see Statutory Interpretation
o Laws both define the criminal activity AND provide sentencing requirements / guidelines
 Federal law: Federal gov’t can create uniform national laws by invoking one of its enumerated powers
o Judicial interpretation is very important – see Statutory Interpretation
o Laws both define the criminal activity AND provide sentencing requirements / guidelines
 MPC: Model criminal laws written by the American Law Institute
o Many states base their criminal codes on the MPC – adopting sections either whole or in part
 **NY** and OH are two JDs that have adopted large parts of the MPC, but R says not always
necessary to know which JDs are which bc there “is no such thing as a MPC JD”
o MPC tends to be specific in its terms bc one goal was to provide ppl with a clear idea of what the law is so
that they can act accordingly
 vs. common law which tends to be more vague (MD very reliant on common law)
THEORIES OF PUNISHMENT
How to determine appropriate punishment –
 What is the purpose of criminalizing the behavior / action?

o Indication of leg intent (see eg, SUITTE), common law purpose, etc.
 In punishing D, what are we trying to accomplish? – ie, which goals of punishment are we trying to serve here?
o Two views of punishment –
 Consequentialist: Actions are morally right only if they result in desirable outcome so
predictable effects of punishment serves society
 Forward-looking at the goals / effects of punishment – so utilitarian view
 Nonconsequentialist: backward-looking view of the goals/effects of punishment – actions are
morally right or wrong in and of themselves (regardless of consequences) so punishment should
be tailored to fit the crime
 Backward-looking – so retributivist view
o Goals of punishment –
 Deterrence: Punishment is used to deter future crimes
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 Specific deterrence: deter this offender from recidivism (committing the same crime in
the future)
 General deterrence: deter public at large – idea is that if ppl know about the possible
punishments, they will not break the law
o SUITTE NY: With the new mandatory punishment for this gun law violation,
leg was trying to crack down on gun use – if we disregard it now, what would
be the point of the law? what would this say to ppl going forward?
o See also consequentialist view (above)
 Retribution: Punishment in recognition of the social harm that D caused and the moral
blameworthiness of this actions – ie, eye for an eye
 See also nonconsequentialist view (above)
 Incapacitation: Punishment serves to prevent the person from recommitting the crime – by
locking them up, they will be unable to reoffend, which in turn protects society
 Rehabilitation: punishment to help offender avoid future crime – more ambitious/internal to
offender’s personal character than specific deterrence
 ex: vocational training, drug treatment, etc.
 Note that reconciliation is NOT a goal in US punishment / justice system
 Are there any collateral consequences to be considered for D?
o Direct consequence: Punishment that is assigned by the judge, per the law
 But note, that it is usually discretionary by the judge to a certain degree
o Collateral consequences: The range of legal penalties and disabilities that flow from a criminal
conviction over and above the sentence imposed by the ct
 ie, a punishment that is NOT prescribed by the statute but that is still a negative effect of the
conviction
 Often are beyond the control of the trial ct
 Can be automatic / mandatory OR discretionary (at the hands of some other entity, not ct),
 There is no constitutional obligation on a defense lawyer to inform client of collateral
consequences
o Note that having a permanent criminal record is technically NOT a collateral consequence, but it often
leads directly to some collateral consequences
o Examples of collateral consequences:
 No more access to public housing / limited (if not entirely eliminated) access to social welfare
 Possible deportation for immigrants
 Registration as a sex offender – and then the further social stigma, etc. from this
 In many states, convicted felons cannot vote (eg, FL)
 ~ Parole eligibility can be considered either direct or collateral (cts go both ways)
o Basically they are low key a vehicle for systematic disenfranchisement of POC
 System is pretty biased and generally stacked against POC – see eg, biases in sentencing, juries,
etc.
 And then the consequences ripple out and have hugely disparate impact
 Based on this, what kind of sentence would be best?
o Jail / prison, parole, fine, restitution, etc.
o Also probation – can be with conditions (eg, community service, AA counseling, etc.)
CONSTITUTIONAL LIMITATIONS
Const’l rights –
 Void of vagueness (Due Process Clause of the 5A and 14A)

o Imposes on legislatures the duty to draft statutes that are clear and understandable
o Goals (KOLENDER, CHICAGO v. MORALES) –
 Provides citizens with fair notice of what they can and cannot do
 Limits police discretion to arrest and jury discretion to imprison ppl they don’t like (so
procedural limitations)
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 Prohibition on cruel and unusual punishment (8A)
o Applies to states through the 14th Amendment
o The punishment imposed on D must be proportional to the crime
o Can’t criminalize addiction would be cruel and unusual to penalize someone for something that they
can’t control (+ ROBINSON, - POWELL)
 Equal Protection Clause (14A)
o Basically, everyone should have equal protection under the law – so the law must be enforced in an equal
way
o Goes to the implicit biases in the system
 See also plea bargaining and 6A
o 6A: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an
impartial jury of the State and district wherein the crime shall have been committed, which district shall
have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to
be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his
favor, and to have the Assistance of Counsel for his defence”
o Guarantees a fair trial in front of an impartial justice system – ie, you get to know the charges, trial takes
place in front of you (so you know what’s being said, you can challenge things, etc.
o Also regulates defense lawyers –
 Establishes that citizens have a const’l right to legit legal counsel
 Regulates what the defense lawyer can do and how they act – so imposes a const’l duty on D’s
lawyer
o Plea bargaining = waiving D’s 6A rights!
PROCEDURAL POSTURE OF TYPICAL CRIME

Life cycle of a criminal trial –
 Investigation and arrest: Police or other enforcement agency conducts investigation and arrests D once they have
sufficient evidence for the prosecutors to mount a reasonable case at trial
o Upon arrest, D is either detained OR cited (ie, released with summons to come back on specific date)
 Prosecution charges D
o Factors here:
 Theories of punishment –
 What is the theory of punishment that we are working under? What do we want to
accomplish in punishing D?
 Also consider collateral consequences, stigma, etc.
 LOOK AT STATUTES –
 What crimes will we definitely be able to prove? Which ones might be a stretch?
 What sentences does each carry? Do these sentences match the theory of punishment?
o Lesser included offenses: each element of the lesser offense must be a necessary element of the greater
offense
 Prosecution or defense can ask for lesser included offense if –
 The evidence in the case supports an inference that the lesser crime was committed
 The request is made BEFORE the jury gets instructions and deliberates
 See MD jury instructions and homicide
 Arraignment: D is read the charges and enters a plea
o D might be appt’ed a lawyer
o Judge decides questions of bail and/or conditions of release
 Prosecution and defense lawyer usually try to come to a plea deal
o Plea bargain = waiving your const’l right to a trial
o Two kinds of plea bargains –
 Charge bargains: you’re pleading to something OTHER than all of the charges in your charge
document
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 ex: you are charged with homicide and robbery; you plead guilty to robbery but not
homicide
 ex: you are charged with assault, and you plead guilty to possession of a dangerous weapon
 So basically where your pleaded guilty charges are different than those you are charged
with
 Sentence bargains: agreeing to different sentence (but say yes to charge)
 Prosecution and defense lawyer get together and agree to some other sentence, and then
show judge and he has to agree
 Alternative to incarceration  be creative in what you suggest (see Krieger reading)
o Rules re plea bargaining –
 Model rules of professional conduct: lawyer can’t materially misrepresent the facts during
bargaining
 Matter of due process – ethical rules govern lawyers
 Note fine line between misrepresentation and puffing
 Can’t give up confidential information during plea bargaining meeting
o Note that both sides want to avoid going to trial if they can – so both have incentives to reach a plea deal
 Prosecution doesn’t have time/resources for every case to go to trial
 Both for judicial AND economic efficiency – it would just not be possible for the ct system
to sustain itself if every D wanted a trial
o This raises classic question – if our system can’t handle them, does this not
indicate we have too many in the system? should we not criminalized less activity?
 To this effect, SCOTUS has recognized that criminal justice system is one of plea deals, not
trials
 Defense wants to avoid the risk of conviction of a harsher crime at trial by pleading to a lower crime
at this stage
o “Shadow of trial” theory: both parties make decisions during this process by weighing the costs / benefits of
going to trial in order to decide their chances of winning, thus informing decision to plea bargain
 Criticisms: this is way too simplistic and overlooks lots of issues –
 Economic concerns of the D – eg, if he’s being detained awaiting trial, maybe his family is
without a source of income, so he’ll do whatever he can do get out ASAP
 Structural deficiencies
o Lawyer’s self-interest, politics, caseloads etc.
o Pretrial detention  often ppl held without bail so already detained for a very long
time – and then they accept plea deal just to get out / move on
 Psychological issues
o Shadow of trial assumes all parties are rational but this is not the case
o eg, education / intelligence affects one’s decisions
o Certain Ds are risk averse – gender biases, innocent Ds (more risk averse than
guilty ones), etc. so some Ds are less likely to bluff
o Trial tax: where judge impliedly threatens that D will get a higher sentence if they don’t just settle
 NOT explicitly – no one can actually say this bc this is violation
 BUT everyone knows this – PDs inform Ds, judge suggests this, etc.
 Fine line between being coercive and making a good offer –
 On the one hand, can be viewed as a negotiation tactic – just cutting them a break
 On the other hand, it is coercive (and against Const rights)
 Prosecution makes its case in proving D’s guilt for the charge brought against him
o Prosecution has the burden of proving D’s guilt through its burden of production and burden of persuasion
 Burden of production: initial responsibility of P to produce evidence in support of its claim
 Burden of persuasion: ultimate responsibility of P of proving that a given offense was committed
o D is entitled of the presumption of innocent until proven guilty
o Standard of proof to establish guilt = beyond a reasonable doubt
 SOP: the level of certainty that the fact-finder (jury, mostly) must reach before ruling for the party
with the burden of proof
 Reasonable doubt: doubt for which you have a reason based on evidence or lack of evidence
 Guaranteed by the Due Process Clause of the 5A and 14A
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 D can mount defense
o Case in chief defense: poke holes in the P’s story – simply CREATE reasonable doubt about some element of
the crime / case
o Affirmative defense: D admits to the guilt of the charged offense but claims that he should be acquitted for
other reasons
 ex: insanity, necessity, self-defense etc.
 NY §§ 125.25(1)(a), 125.20(2) – Extreme emotional disturbance is affirmative defense that
bumps killing down from Murder 2 to Manslaughter 1
 BOP often shifts to D here to prove their claim (but not always)
 Judge must determine if D should be allowed to present this defense
o Directed verdict of acquittal – judge directs the jury to acquit D for lack of evidence
 Standard: whether P has introduced sufficient evidence that a rational jury could find that the
prosecution has proved its case beyond a reasonable doubt
 Judge gives the charges to jury to determine guilty or not
o Each side will submit jury instructions
o Judge must look at them and determine which one to give
o Erroneous jury instructions are big source for appeals
o But note, judge can take a determination away from a jury if there are too few facts so he gets to decide it as a
matter of law – legal insufficiency of the facts
 On appeal –
o Usually, only D can appeal after a conviction – prosecution cannot appeal an acquittal
 Prosecution can only appeal very procedural things – ie, dismissal in GOETZ NY
o Common things that D appeals –
 Sufficiency of the evidence: there was not enough evidence to warrant the jury’s determination
beyond a reasonable doubt
 Erroneous jury instructions: the jury instructions given to the jury were incorrect (usually bc of a
matter of law – ie, definition of some element is wrong) and lead to an erroneous conviction
 Can also appeal a sentencing decision (eg, SUITTE NY)
o Standard of reviews –
 Sufficiency of the evidence: App ct looks at all of the evidence in the light most favourable for the
prosecution and determines whether a rational factfinder (ie, jury) COULD have found D guilty
beyond a reasonable doubt
 Also makes sense bc what you’re trying to do is determine if the jury in the trial court could
rationally reach the decision that it came to and since it came to a conviction, you’ll have to
view it in the light most favourable to the prosecution
 If ct finds that the evidence was insufficient to support conviction, case is REVERSED
(????)
 Erroneous jury instruction: App ct basically reviews based on legal requirements of the crime
 Much more black and white than the others – if it’s wrong, it’s wrong
 If ct finds that jury instructions were erroneous, case is REMANDED (????)
 Sentencing: App ct can use either an abuse-of-discretion standard (deferential)
 In NY, leg allows app cts to modify sentences – so substituted discretion is also permissible
here (see SUITTE NY)
STATUTORY INTERPRETATION
 bc of nature of criminal law, statutory interpretation is crucial and this gives judges lots of leeway / power
 If statute is clear or if it already has accepted interpretation, apply that

 If statute is ambiguous, generally-accepted method of interpretation is (DAURAY) –
1. Is the term defined in the statute or somewhere else in the code?
o Check definition section – usually at beginning of Code
2. Plain meaning analysis: What is the ordinary plain English language meaning of the term?
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3. Canons of construction:
o Lists should be read so that the meaning of the ambiguous term is determined by reference to the
associated terms
o The meaning of a general term at the end of a list is limited by the particular things enumerated in the
list
o Statutory structure: The particular section of the statute should be considered in light of all of the
other parts of the statute
o Avoid interpretations that would yield absurd results
4. Legislative history and intent:
o What did the leg intend to do when it created this statute?
o What thing was it trying to protect and what act was it trying to criminalize?
o Does the leg history yield any insight on how to interpret? – drafts of statute, recorded discussions of
statute, official statements, etc.
o If amended, what is different between now and then? What does this say about what leg was trying to
accomplish?
5. If none of these prove helpful, apply rule of lenity
o Rule of lenity: Ambiguities in a statute must be resolved in D’s favour
 Lenity is derived from common law but is a function of Due Process’s void of vagueness
doctrine
INTRO – CASES
People v. Suitte, NY App. Div. 1982, p.12

1. F: S was arrested for unauthorized use of a vehicle in NY; police found a loaded gun in his car; the gun was
registered to S in NC, by not NY; S was charged with criminal possession of a weapon in the 3rd degree (class D
felony); S pleaded guilty to the lesser charge of criminal possession of a weapon in the 4th degree (class A
misdemeanor); S has never been convicted of a crime before and was generally an upstanding citizen, but carried
the gun bc he operated his tailor shop in a high-crime neighborhood; trial judge sentences him to 30 days in prison
and 3 years’ probation; S appealed (wanting even less time)
2. Rule: Criminal possession of a weapon in the 4th degree carries mandatory imprisonment of 1+ years for
possession of a loaded (illegal) weapon outside of the home or POB
3. H: Trial ct did NOT abuse its discretion – so affirmed
4. R: NY leg was trying to curb the proliferation of illegal weapons in NY state and was clearly trying to “get tough”
and send a message of zero-tolerance; in order to do this, it imposed a mandatory term of one year in prison for
any D convicted of CPW4D; however, it also permits a lesser sentence for a D who has not been previously
convicted of a felony or class A misdemeanor w/i preceding 5 years; trial ct is in the best position to hear the
witnesses and consider all of the pertinent information (closest to the facts) so though app ct can review using
either substituted-discretion standard OR abuse-of-discretion standard, both here suggest that the trial ct was right
given the deference we must afford it; trial ct viewed general deterrence as the main goal / principle in sentencing
S; it clearly felt that sending a message to the citizenry about the seriousness of the new gun laws would be
contravened if it gave any less time than 30 days; this app ct cannot reduce S’s sentence without saying otherwise;
in sum, trial ct did NOT abuse its discretion and there is no reason for us to use substituted-discretion standard
5. Dissent: Uses substituted-discretion standard; based on the evidence, this sentence is unduly harsh
Regina v. Dudley and Stephens, Eng. 1884

1. F: D and S were shipwrecked and lost at sea in a row boat for 24 days, along with fellow seamen Brooks and
Richard Parker; they had no water, except occasional rainwater, and had been without food for at least 1 week; RP
was very sick and weak; D and S told B they thought they should kill and eat RP; B said he did not want anything
to do with that; they killed RP anyways and all 3 ate his body; a rescue ship found them 4 days later; D and S
were put on trial for the murder of RP; jury at trial determined that if they had not eaten RP, they would have died
before they were rescued; it also found that RP would have died before the other three [EL: but these two logical
premises taken together basically means that they did not have to kill RP to live]; D and S appealed, trying to
invoke the defense of necessity
2. H: Conviction affirmed (but note – their death sentences were later commuted to 6 mos in prison)
3. R: Humans have a moral obligation NOT to kill others; necessity is only a justification for murder when it is done
in self-defense; RP was an innocent bystander and you cannot take an innocent life to save your own; slippery
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slope concerns – where do we draw the line? For the sake of efficiency, clarity, etc., we cannot extend necessity to
this situation
Kolender v. Lawson, SCOTUS 1983

1. F: L was detained 15 times between 1977 and 1975 for violating a CA statute requiring street loiterers to provide
“credible and reliable ID” to officers who asked for ID; of these 15 arrests, L was only convicted once; after this
conviction, he sued to have this law declared unconst’l
2. H: The law is unconst’l – void of vagueness
3. R (O’C): The statute is too vague to be const’l bc it does not state what an individual must do in order to be a
suspect under the statute; criminal statutes must give fair notice of the type of conduct they prohibit so that ppl can
conform their behavior to meet it; here, all it says is that officers can stop ppl bc they think the person is
“suspicious”; “suspicious” is too vague and arbitrary, as is the term “credible and reliable ID”
4. Dissent (Brennan): This violates the void of vagueness doctrine AND the 4A ban on illegal search and seizure
5. Dissent (White): Reasonable ppl understand that certain types of conduct would be suspicious, so for those types
of conduct, the statute is not unconst’l
City of Chicago v. Morales, SCOTUS 1999

1. F: Chicago enacted an ordinance criminalizing “loitering” in a public place with 1+ other ppl; it defined loitering
as “remaining in any one place with no apparent purpose”; per the statute, if a police officer observed someone
that he reasonably suspected to be in a criminal street gang and violating this statute, he could order the ppl to
disperse; anyone who did not follow the dispersal order would be in violation of the ordinance; M was convicted
for violating the ordinance
2. H: The law is unconst’l
3. R: For two reasons, this is unconst’l – (1) it fails to provide the public with adequate notice of what exactly is
prohibited, and (2) it permits and even encourages authorities to enforce the law in an arbitrary and discriminatory
manner; “loitering” is too vague to be enforced uniformly and/or tell ppl what they cannot do
United States v. Dauray (2d Cir. 2000), p.66

1. F: D was found in his car in CT in possession of 13 unbound pictures of child pornography; the pictures were
pieces of magazine pages and photocopies of those pages; convicted of child pornography in re 4 photos
a. Rule: 18 USC §2252(a)(4)(B) – child pornography rule – criminalized the possession of “3+ books,
magazines, periodicals, films, video tapes, or other matter” that have passed in interstate or foreign
commerce and “which contain any visual depiction” showing a minor engaged in sexually explicit
conduct
i. D’s arg: each picture was itself a “visual depiction” so it cannot contain a picture
ii. Gov’t’s arg: “other matter” is the depiction itself
iii. 1998 – Congress amended the statute to cover only 1+ and added an affirmative defense
2. H: The statute is ambiguous so the rule of lenity must be applied in D’s favour
3. R: Court considers various methods of interpreting the statute –
a. Plain meaning: begin with ordinary plain English language meaning of the terms  not helpful bc both
meanings valid
i. “to contain” may mean either “to hold” (D) OR “to consist of” (gov’t’) + “matter” is what an
object consists of
b. Lists canons  can go either way
i. “Other matter” and the list can form a category of picture containers that enclose within them
visual depictions (D) OR can be any physical medium that presents visual depictions (gov’t)
c. Statutory structure  can go either way
i. Only this section of the statute specifies the list; the others just forbid “any visual depiction” of
child pornography
ii. So Congress knew how to prohibit a general possession of the pictures if it wanted to (D) OR
could be bc the other sections of the statute are the most harmful to the children that the statute
is intended to protect, so needed to be broader (gov’t)
d. Statutory amendments
i. D – by dropping the minimum required pieces to 1 there is no need for a list unless the list is
meant to distinguish a “container” from its contents
ii. Gov’t made no response, “which is not to say that no response can be made”
e. Avoiding absurdity  both yield absurd results
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i. D’s reading would prohibit possession of 3 books, each of which contain 1 image, but allow the
possession of stacks of unbound photographs
ii. Gov’t’s reading would prohibit possession of 3 individual photographs, but allow 2 large books
f. Legislative history  not helpful (doesn’t explain why)
g. THEREFORE, must apply the rule of lenity in D’s favour – bc lenity is a function of Due Process + void
of vagueness
4. Dissent: Lenity not required – the statute was not so ambiguous as majority made it out to be
ELEMENTS OF A CRIME
Four elements of a crime: (1) actus reus leading to a social harm, (2) mens rea, (3) causation that connects actus reus to
social harm, and (4) concurrence between the actus reus and the mens rea
~ But note, there is a fifth element that the crime was NOT justified – see justification defenses
ACTUS REUS
ACTUS REA: Voluntary act (or omission where legal duty) that results in a social harm
General principles –
 D‘s act must be voluntary (- MARTIN AL, + DECINA NY)

o A volitional act is generally a movement of the body willed by the actor
o Habitual acts are considered volitional even if the actor is unaware that they are doing it
o In interpreting a statute, a court might BROADEN THE TIMEFRAME of the actus rea to make the mens rea
fit the statute
 DECINA: actus rea was the decision to get in the vehicle despite knowledge of epileptic condition
that posed risk (recklessness being mens rea) – NOT the way he was actually driving
NYPL § 15.00: Culpability; Definitions of Terms

1. -- “Act” means a bodily movement.
2. -- “Voluntary act” means a bodily movement performed consciously as a result of effort or determination, and includes the
possession of property if the actor was aware of his physical possession or control thereof for a sufficient period to have been able
to terminate it.
3. -- “Omission” means a failure to perform an act as to which a duty of performance is imposed by law.
4. -- “Conduct” means an act or omission and its accompanying mental state.
5. -- “To act” means either to perform an act or to omit to perform an act.
 Thought crimes NOT acceptable (DALTON article)

o Derived from common law maxim that a person cannot be convicted on the basis of their thoughts
o Also ~off-shoot of protected freedom of speech
o Justifications:
 Policy concerns – slippery slope of where to draw line as to what counts as a crime versus what does
not if no way to measure it
 Don’t know if someone will actually act on the thought
o Counterpoint: manifestos often do become hate crimes (eg, school shooters)
 No criminal liability for a failure to act where the person had no legal duty to act (BEARDSLEY MI)
o Justification: omissions are NOT acts
o Exception: where you had a legal duty to act bc of –
1. Special relationship – eg, spouses, parents and kids
2. Contractual duty – eg, nursing home
3. Statutory duty – eg, failure to pay taxes
4. Creation of risk – eg, A accidentally knocks B into lake so must try to rescue him
5. Voluntary assumption of care – eg, “I’ll watch your kids for a few hours”
o Note the implications of the bystander effect
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 Bystander effect: when witnessing a crime, ppl may not get help bc they assume other ppl will
 Moral wrong ≠ legal wrong
 SOLUTION: States can enact good Samaritan laws that require ppl to help where doing so poses no
danger to them – sometimes imposes fine (VT) or shields bystander from civil liability (HI) in effort
to incentivize
 Status crimes are unconstitutional (+ ROBINSON, - HOWARD)
o Cannot be punished just for being a certain kind of person
o Statutes criminalizing addition are violation of 8A’s cruel and unusual punishment proscription (ROBINSON)
ACTUS REUS – CASES
Martin v. State (AL 1944), p.156

1. F: Man was arrested at his home and taken to a public highway when he was drunk; was then acting drunk on the
highway; convicted of “being drunk on a public highway”
2. Rule: Any person who, while intoxicated or drunk, appears in any public place where 1+ persons are present, and
manifests a drunken condition by boisterous or indecent conduct …
a. Actus rea under statute – appears in a public place & manifests a drunken condition
3. H: Conviction overturned
4. R: While the statute clearly applies, man was taken there against his will and a common law requirement of
criminal convictions is that the acts are done voluntarily
a. Court invokes plain meaning interpretation – in this statute, a “voluntary appearance is presupposed”
State v. Decina (NY 1956), p.157

1. F: Man with history of epilepsy (though he had sought medical treatment) had a seizure and lost consciousness
while he was driving; killed four children and later injured one when his car struck a store; indicted and charged
with criminal negligence in operation of a vehicle resulting in death
2. Rule: A person who operates or drives any vehicle of any kind in a reckless or culpably negligent manner,
whereby a human being is killed
3. H: Charge is appropriate
4. R: The only intent necessary is when conduct manifests a “disregard of the consequences which may ensure from
the act, and indifference to the rights of others”; here, he knew he had a medical history and made the conscious
decision to drive anyways; this deliberate decision and act of getting in the car despute awareness of risk satisfies
the voluntary action element (though concedes that hitting and killing children involuntary
a. D’s medical history made the decision to drive a social harm – so see that it’s subjective!
b. Note how the court BROADENED THE TIME FRAME of the actus rea to have the mens rea satisfy the
statute
5. Dissent: the actus reas was losing consciousness but this is not voluntary; applying the majority’s version of the
“recklessness” of the actus rea would mean that anyone with a condition is criminally guilty of violating the
statute any time they got behind the wheel
Dalton article (2003): Brian Dalton convicted for disturbing fictitious writings about child molestation and torture; ironic
bc kept journal as part of psychological treatment; conviction overturned bc these were just thoughts – so had mens rea but
no actus rea
People v. Beardsley (MI 1907), p.165

1. F: Burns stayed at B’s house overnight (mistress?); they were drinking; B didn’t know that Burns had obtained
morphine tablets but saw her consume them and attempted to knock them out of her hand; she went unconscious
and eventually died; B convicted of manslaughter
2. H: Conviction overturned bc B had no duty of care to Burns
3. R: Where no legal duty exists, one might be morally culpable for failing to assist but not criminally; Burns was
merely a guest in B’s home (not wife) so their personal history is irrelevant
Robinson v. CA (SCOTUS 1962), p.181

1. F: R convicted under a CA statute that made it illegal for someone to be addicted to drugs; four months before
conviction, cops found scars and needle marks on R’s arms; at trial, jury was instructed that it could convict him
either if they found he had used drugs in CA or if he was addicted to drugs
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a. NOTE – R actually died of overdose 10 months before SCOTUS decision; CA wanted it mooted but
SCOTUS decided to continue; only SCOTUS decision to actually strike down law for violation of 8A
2. H: The statute is a violation of 8A
3. R: While states have discretion in re drug trafficking laws and may require compulsory treatment programs, they
cannot criminalize addiction; drug addiction is a disease so this is like jailing someone for having any other
disease; imprisoning someone bc of their health status is against 8A’s cruel and unusual punishment proscription;
trial judge was incorrect in instructing jury that they could convict him if they found that he was addicted to drugs,
though not necessarily if they found he had used drugs
4. Dissent: The statute applied to volitional drug use so it does not violate 8A and the purpose is to compel
treatment, not jail so this really isn’t cruel and unusual
Powell v. TX (SCOTUS 1968), p.185

1. F: Powell was convicted of public intoxication; argued that convicting him under the law was violation of 8A bc
he was an alcoholic, under Robinson
2. Rule: Texas Penal Code, Art. 477 – “Whoever shall get drunk or be found in a state of intoxication in any public
place, or at any private house except his own, shall be fined …”
a. Actus rea: get drunk AND be at any place other than your house
3. H: Convicting Powell is not unconstitutional
4. R (4 Justices): Robinson is inapplicable precedent + slippery slope policy argument – if we allow an alcoholic to
get off bc of his compulsions, we would have to let off a murderer who claimed he had a compulsion to kill
5. Concurrence (White): The crime here is not being an alcoholic but being drunk in public place so Robinson does
not apply – irrelevant that some alcoholics don’t have a home to go to [EL: is this not criminalizing poverty then?]
6. Dissent (4 Justices): Robinson applies – criminal penalties should not be inflicted upon ppl for being in a
condition that he can’t control
MENS REA
MENS REA: The particular mental state required by the crime, usually provided for in the statute
 Mental state ≠ motive (though often overlap)
 Mens rea requires an intent RELATED TO the crime – cannot just be general bad intent (CUNNINGHAM)
o Note that there are specific and general intent crimes – see “Defenses”
 In practice, the distinction is abolished in most JDS, but it is still relevant for mistake of fact
defense in common law JDs!
 Mental states in statutes usually apply to both result crime (eg, murder) AND conduct crimes (eg, DWI)
Main Types of Mens Rea – see generally NY § 15.05 and OH § 2901.22 for definitions
1. Purposely / Intentionally
 Generally accepted at common law that it is acting with the –
(1) conscious objective to cause the social harm OR
(2) virtually certain knowledge that actions will cause the social harm
 Natural and probable consequences doctrine: Can imply intent to kill where death is an
obvious consequence of D’s conduct (FUGATE OH)
2. Knowingly
 At common law, a person has “knowledge” of something if he is either aware of that fact OR correctly
believes the fact exists
 ~ Willful blindness: the purposeful ignorance of a fact that is highly likely to be true regarding commission of
a crime IS considered “knowingly” and so not a defense (JEWELL)
o NOT universally accepted in JDs so be careful!
 NOTE – pretty uncommon with the exception of drug crimes bc very hard for gov’t to prove
3. Recklessly
 Generally requires that defendant KNEW of risk and chose to disregard it
o vs. negligently – where he did not know of risk at all
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o NY Ct App has said that recklessness and neg are mutual exclusive – you cannot be both at the same
time so you cannot be charged with two crimes where they each require one
4. Negligently
 Defendant acted negligently if a REASONABLE person would have perceived of a risk and would NOT have
acted, but defendant did act
 Use a reasonable person standard – so we don’t care about whether D actually knew of risk
o BUT note that different JDs different on what exact standard within reasonable man to use’
~ Strict Liability Crimes

 NOTE: only kind of part of mens rea bc fundamentally SL crimes don’t require any mens rea at all
 SL crimes ≠ general intent crimes
 To determine if the crime (by statute) is SL (MORISSETTE) –
1. Does the statute contains a mens rea?
 Presumption against SL crimes – generally disfavoured (MORISSETTE)
 If not entirely clear, default mens rea is recklessness (MPC, OH § 2901.22(C)(1), ELONIS –
neg not enough but doesn’t say what is)
 So if leg wants to create a SL crimes, they must be very clear about this (BARONE PA)
2. If no mens rea, consider these factors?
 Newly created public welfare crime (PWC) or one that stems from common law?
 Public welfare crime: disregard of a statutory duty – either failing to do something that
you had to do OR doing something that you were not supposed to do
o ex: failing to put proper labelling / warnings on products – eg, bleach
o Concerned with public health, safety, welfare, etc.
o Often public welfare crimes result in no immediate danger to any individual
but result in the probability of danger to the general public
 Therefore whatever the crime is, the injury is the same – this is why
we can overlook the mens rea
 MORISSETTE: Stealing gov’t property is NOT a public welfare crime so no SL
 Statute punishes explicitly for omission – in keeping with PWC
 Statute punishes for risk of injury (rather than actual injury) – in keeping with PWC
 D is in a position to prevent the harm AND it was reasonable to expect this of D – in keeping
with PWC
 What is the punishment per the statute?
 Does the severity of the punishment suggest the leg intended to create SL crime?
 Punishment depends on the “severity” of the crime, but usually SL crimes have lesser
punishments (eg, fines)
o EL: Obvious exception to this is statutory rape
 Is there stigma for the conviction of the crime?
 Bc the punishment goal = GENERAL DETERENCE
 PWC tends to have little stigma / collateral consequences
 If public welfare crime, SL okay
 If not, there must be mens rea element
MENS REA – CASES
Regina v. Cunningham (Eng. 1957), p.202

1. F: C ripped gas meter off a wall in the house beside that of his MIL; didn’t fix it; gas seeped through wall and
almost killed MIL
2. Rule: Offences Against the Person Act, §23 – “whosoever shall unlawfully and maliciously administer to … any
person any poison … shall be guilty”
a. Actus rea: administer noxious gas to MIL
b. Mens rea: “maliciously”
c. Social harm: hurting another
3. H: Erroneous jury instructions at trial – was not up to jury to decide that he acted wickedly but whether he
intended to hurt MIL
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4. R: There is a distinction between just being evil (or wicked) and the intent to commit the specific crime – court
says the mens rea is the intent to asphyxiate MIL (that is, tying intent to the crime itself)
a. Trial court’s view of mens rea is the historic broad view – today we generally have elemental mens rea
requirements (see, eg. OH statutes)
b. **Note that the way the court defines malicious is closer to how we think of reckless, but we just have to
accept that this is what they’ve decided the definition is**
United States v. Yermian (SCOTUS 1984), p.204

1. F: Y was hired by defense contractor; had to fill out worksheet for bg check; was asked if he had ever been
charged with a violation of law and failed to disclose that he had previously been convicted of mail fraud;
standard of proof on gov’t is to show that statement was made with knowledge of its falsity; Y argued that the
statute also required gov’t to prove that the false statement was made with knowledge of federal agency JD
2. Rule: 18 USC §1001 – Whoever, in any matter within the JD of any department or agency of the US knowingly
and willfully … makes any false … statements or representations … shall be fined
a. Actus rea: making false statements
b. Mens rea: KNOWINGLY and willfully
i. But USC does not contain definition section so must rely on precedent to determine what
knowingly means
c. Social harm: making false statements
3. H (5): Rejects Y’s arg – the statute does not require the gov’t to establish the standard of culpability for the JD
element bc it is not w/i Congress’s intent
4. R: Rely on statutory interpretation to see if the culpability language also modifies the JD lang – here, the JD lang
is purely to distinguish the circumstances under which the fed gov’t has authority to act; Congress did not intend
for “knowingly” and “willingly” to create a culpability threshold in re the JD lang; natural reading of the statute
supports this
5. Dissent (4): Congress’s intention is unclear based on leg history; maj doesn’t actually say what standard is
appropriate regarding mens rea; D should get new trial with the appropriate standard
State v. Fugate, (OH 1973), p.215

1. F: 19yo struck 66yo twice and then took him into garage and shot him; convicted of murder
2. Rule: RC 2901.01 – intent to kill is essential to conviction of first degree murder (so must be shown that D
purposely killed victim)
3. H: The act of killing him was so obviously deliberate that it is not necessary to instruct the jury to determine what
exactly he was thinking
4. R: They can use the “natural and probable consequences doctrine” – intent to kill may be presumed where the
obvious result of D’s wrongful act is to produce death
a. Limited to murder charges usually – tho sometimes see it in context of assault with deadly weapon
US v. Jewell (9th Cir. 1976), p.217

1. F: J convicted of knowingly transporting 110 lbs of marijuana work over $6K in a secret compartment of his
automobile from Mexico to the US; at trial, J testified that he did not know the drugs were there BUT there was
circumstantial evidence to show that he did and that he was therefore lying; also circumstantial evidence to show
he knew of the secret compartment and that it probably contained drugs; trial judge refused his request to instruct
jury that in order to convict, J must have had to “absolutely, positively” know of the weed
2. H: “Knowingly” includes positive knowledge as well as willful blindness
3. R: Historically, deliberate ignorance and positive knowledge have been equally culpable; MPC also endorses
willful blindness doctrine; slippery slope if not bc then would create defense for anyone who was deliberately
ignorant
Morissette v. US, S.Ct. 1952, p.232

1. F: Morissette took spend bomb casings from an old Air Force practice bombing range to salvage them; he
admitted to taking them but thought the property was abandoned and swore he did not intend to steal them; trial ct
said that only intent required was the intent to take the prop (gave directed verdict); app ct said this was SL crime;
M appealed on grounds of erroneous jury instructions
2. Rule: 18 USC §641 – whoever steals government property is punishable by fine and imprisonment
3. H: This is not a strict liability offense
4. R: The omission in the statute of any mention of intent does not mean that it should be construed as eliminating
intent as an element; traditionally, even where requisite intent is not expressly stated in a statute, it is an inherent
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element to the offense; this is bc at common law, intent was such an inherent part of the crime that it was often not
specifically included in the statute – so there is a presumption against SL; while there are some federal crimes
which do not require intent (and therefore impose strict liability), there is a difference between this crime and
those (US v. Balint and US v. Behrman); those were “public welfare offenses” designed to be for the public good
so they serve a public policy purpose; theft is not a public welfare offense so the statute cannot be understood to
impose SL
Commonwealth v. Barone, PA 1980, p.237

1. F: Barone was driving; at intersection, she stopped at stop sign and waited a few minutes for traffic to clear before
continuing; she either “failed to look to her right or misjudged the distance” and speed of oncoming traffic; while
in the intersection, a motorcycle hit her and the driver died
2. Rules:
a. § 3732 of the Motor Vehicle Code – “any person who unintentionally causes the death of another while
engaged in the violation of any law … applying to the operation or use of a vehicle … is guilty of
homicide by vehicle … when the violation is the cause of death”
b. PA § 305 – no culpability requirements for mens rea where the leg has been really clear about wanting to
make the crime SL
i. Court’s response: but if a statute uses a word that has a centuries-old usage, we must interpret it
consistently with past/historic meaning
3. H: This is not a strict liability offense
4. R: Traditionally, offenses of “homicide” do require intent [R: homicide connotes fault] but the statute applies the
offense of homicide to vehicle violations without apparent purpose or design; the statute is therefore ambiguous;
a. Plain meaning interpretation: not helpful bc homicide usually connotes intent but “unintentionally” is
contradictor
b. Leg history / intent: the leg would not want to punish every driver guilty of violating traffic laws but only
those guilty of a “gross deviation” from the required SOC; leg wanted to deter / regulate poor driving bc
there was a statutory gap where drivers were acting neg; BUT here, no evidence that Barrone grossly
deviated bc she waited for several minutes
5. Concurrence: §3732 is actually unconstitutional (under PA constitution) bc it violates DPC by imposing a penalty
too onerous on ppl convicted of it; homicide attaches great social stigma that is not deserved of this type of crime
a. Note – he goes with state const bc fed const doesn’t give as much protection to D
i. FED CONST STANDARDS ARE THE FLOOR – state consts can go above it – and at any time,
you can still go above either
6. Dissent: The language is unambiguous and the leg clearly meant to impose criminal strict liability on offenses like
Barrone’s
Elonis v. US, S.Ct. 2015 [Canvas]

1. F: Elonis posted multiple raps(?) on FB that were directed at (1) his estranged wife, (2) polices officers, (3) a
kindergarten class, and (4) an FBI agent
2. Rule: 18 USC §875(c) – an individual who “transmits in interstate … any communication … containing any threat
to injury the person of another” is guilty of a felony
a. Actus rea: transmits a communication containing a threat
i. NOTE – so good arg for defense is that thought crime is NOT a crime (see Dalton article)
b. Mens rea: No mens rea but MORRISETTE says presumption against SL crime where no mention of it
c. Issue: What mental state is required by the term “threaten”
3. H: **Negligence is not the standard**
a. Unclear secondary holding -- The mental state required by §975(c) is satisfied if D transmits a
communication for the purpose of issuing a threat [so with intent] OR with knowledge that the
communication will be viewed as a threat [reckless..? / knowledge..? - unclear]
i. So basically just punts it back to lower courts – eg, why Alito is angry
b. So E’s conviction is overturned
4. R: Mens rea is what distinguishes legal innocence from wrongful conduct, and must apply to each element of the
statute, therefore must apply to fact that the communication contains a threat; gov’t argues that negligence is
enough, but there is a general presumption that federal statutes should not be read to infer negligence for mens rea
bc of LT view that “wrongdoing must be conscious to be criminal” (Morrisette)
5. Conc / dissent: All majority does is say that negligence is not enough but it doesn’t say what IS the proper mens
rea; it is the Court’s job to define things clearly and provide guidance to lower courts – this doesn’t do that;
recklessness is the appropriate mental state
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CAUSATION
CAUSATION: The actus reas by the defendant must lead to the social harm
 Actually part of actus rea but bc complex, cts treat like a separate element (per book)
Requirements –
1. D’s conduct must be an actual or BUT-FOR CAUSE of the social harm

 Would the social harm have occurred without D’s actions? IF NO, no but for cause
 No requirement that D’s conduct was the primary factor
o Were D’s actions one of the “many different factors” that caused/lead to the social harm?
o Were there intervening causes?
 On test, always identify any and all but for causes
2. D’s conduct must be the PROXIMATE CAUSE of the social harm
 If D was the ONLY but for cause, is it fair and just to hold D criminally liable?
o No specific requirements / standards
o Foreseeability is common standard but NOT ubiquitous (KIBBE)
o Other factors: moral intuition / sense of justice, common sense, public policy considerations
 If there were intervening causes, were the intervening causes dependent or independent?
o If dependent (responsive to D’s actions), D is still proximate cause unless the dependent intervening
cause is extremely unusual or bizzare
o If independent (coincidental), D is still proximate cause if it (the death? the intervening cause?) is
still foreseeable
--------------------
Henderson v. Kibbe, SCOTUS 1977, p.308

1. F: K and co-D saw a very drunk Stafford at a bar and decided to rob him; took his money; left him on side of unlit
road without pants, shoes, coat, or glasses in freezing cold; he was hit by a car (driver was independently acting
negligently?) and killed
2. Rule: NY Penal Law §125.25 – person is guilty of 2nd degree murder when under “circumstances evincing a
depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to
another person, and thereby causes the death of another person”
3. H: Even though jury instructions were wrong, definition of “recklessness” includes a causation element so no
habeus corpus
4. R: Ct runs through causation elements –
a. Was K a but for cause of S’s death? YES
i. If he hadn’t robbed him and left him on road, S would not have died
ii. Truck driver was also but for cause (2nd actual cause)
b. What about proximate cause?
i. Is it fair and just to hold D criminally liable? – trial judge brings in elements of foreseeability of
ultimate harm in determining yes (even if not hit by a car, may have freeze to death)
ii. Intervening cause? – truck driver is independent intervening cause, but standard is still the
foreseeability test
c. DPC concerns: Prosecution has to prove every element of the crime beyond a reasonable doubt
i. To determine whether the instructions were erroneous, the instructions given should be
compared to proper instructions
ii. Causation instructions would have said that if D reasonably could have foreseen the ultimate
harm and still acted, he conduct should be considered the cause of Stafford’s death
iii. Bc a determination of “recklessness” means concluding that D was “aware of and consciously
disregarded a substantial and unjustifiable risk,” it necessarily also means concluding that D
foresaw the ultimate result and still acted, thereby causing the result
iv. The jurors would not have found the causation instructions any different from the ones they
were given, so these instructions did not influence the outcomes, so no habeus corpus
CONCURRENCE
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(not tested on)
CONCURRENCE: A connection between the actus reus and the mens rea elements
Requirements –
 Temporal concurrence: D must possess the requisite mens rea at the same time as the actus reus
 Motivational concurrence: D’s mens rea must be motivating force behind the actus reus
CRIMINAL HOMICIDE
CRIMINAL HOMICIDE: term encompassing the unlawful killing of a human being by another human being
 Homicide is a very ancient crime, so definition / elements of common law murder and murder in modern statutes
is pretty much the same (eg, “malice” in CA § 188)
 Distinction between murder and manslaughter developed bc historically all murder was punishable by death but
then it started to seem unfair to subject all homicide to death penalty
 Types of homicide at common law:
o Murder: unlawful killing of a human being by another human being with malice aforethought (malice
basically being intent)
o Manslaughter: unlawful killing of a human being by another human being without malice aforethought
 Note that the MPC does not distinguish between degrees of murder today
TYPES OF HOMICIDE –
 NOTE: these are general rules but always look to statutes to determine what kind of homicide we are talking about
= MURDER 1
+
PREME
DITATI
ON +
DELIBE
RATION
MURDER 2
IS DEFAULT [D knew of and
disregarded risk]
+ NOTE – NY Ct App says
impossible to be both
- MALICE reckless and neg at same
= + HOT time – so probs can’t be
BLOOD charged with both
RESPONS
E TO LAP
W/O
COOLING
OFF
PERIOD
[Reasonable person
= VM would have known of
risk, even if D didn’t ]
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First degree murder: Most serious kind of homicide; different JDs will have different definitions for it AND different
requirements on prosecution to prove (but see NY § 125.27 is enumerated categorical statute for Murder I)
Premeditated first degree murder: A killing that involves premeditation and deliberation
 Actus reus: Killing someone
 Mens rea: Intent to kill
 Premeditation and deliberation are somewhere in between the actus reus and the mens rea!
o R: think of them as an added circumstance in the statute – eg, theft at night
o Premeditation: D must have reflected upon and formed the specific intent to kill the victim in
advance of the killing
 BUT there is no timing requirement (BINGHAM WA – slippery slope)
 This is a HIGHER bar than mere intent (GILBERT FL)
o Deliberation: refers to D’s thought process – was the killing undertaken with a cool head? did
he weigh pros and cons? did he plan out the killing?
 Note that statutes may include enumerated means of killing someone under Murder I (eg, PA §2502
includes poison and lying in wait) and these means are specifically included bc they involve the elements
of premeditation and deliberation
Felony murder (“FM”): When the death results from conduct undertaken during the commission or attempted
commission of an enumerated felony (separate from the killing)
 Actus reus: Killing someone during the commission of another enumerated crime
 Mens rea: Intent NOT required because this is basically a strict liability crime
 Criticism: Rising disapproval bc attaching FM to a crime where there was a death can take you from a
relatively minor offense to a serious sentence – see eg Chicago FM article
 Four doctrinal rules to limit scope of FM:
(1) “Res gestae” requirement
(2) Merger doctrine
(3) Agency rule
(4) Inherently dangerous felony limitation  the only one we study
 Justification: D had intent to commit the inherently dangerous felony, so he probably
knew of the risk to 3Ps, thus we can imply malice for any killings that result from it
(dissent in HOWARD CA)
 JDs use three approaches to determine what constitutes “inherently dangerous felony”:
 “In the abstract” approach: Is the felony inherently dangerous per se?
(HOWARD CA)
o ex: Cooking meth is inherently dangerous bc the volatile substances
create high likelihood of fires
o Is EVERY ELEMENT in the statute inherently dangerous? If some
are but some aren’t, then the statute as a whole cannot be said to be
inherently dangerous
o Once ct decides a felony is inherently dangerous, there is a
categorical determination so any future commissions of that felony
resulting in death are open to FM charge
 “Under the circumstances” approach: Did D commit the felony in a manner
that created foreseeable risk of death?
o Very fact specific inquiry
o By introducing element of risk into the FM charge, ct low key does
have ~mens rea element which limits FM as SL crime
 Either per se OR under the circumstances (HINES GA)
o ie, cts can use either method – not stuck to one or the other
o This is test GA uses, but HINES GA ct resorted to the second
analysis bc Ford was found NOT to be inherently dangerous
(otherwise this would create categorical distinction)
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Second degree murder: Less serious than Murder 1; many states define Murder 2 as catch-all in that it’s anything that’s not
Murder 1
Murder with intent to kill or seriously injure without premeditation – per R, THIS IS THE DEFAULT /
STARTING POINT
 Actus reus: Killing someone
 Mens rea: Intent to kill or seriously injure – see also natural and probably consequences doctrine
Depraved heart murder: a killing due to D’s extreme recklessness – where D knew or should know that they are
taking such an extreme risk that someone could die, but they do it anyways
 Actus reus: Someone dies bc of some action by D
 Mens rea: Extreme recklessness  D was aware of the extreme risk that their actions presented to human
life, and disregarded the risk and acted anyways
o ex of extreme recklessness: D is showing off new gun to friend and aims into a crowd; friend
says to stop; D laughs and pulls trigger; someone in crowd is killed when hit
 vs. ex of mere recklessness: D is going 75mph in 40mph zone; D hits and kills
someone
o This mens rea IMPLIES malice
o KNOLLER CA: Implied malice = where D acted with conscious disregard to the danger of
human life
 ex: playing Russian Roulette and firing at other person (NY 1989); parent failing to fee infant for 2
weeks out of “indifference” (CA 1977); speeding while drunk in bad weather (NC 2000, AL 1991)
Manslaughter: unlawful killing of a human being by another human being WITHOUT malice aforethought
Voluntary manslaughter (“VM”): An intentional killing that would usually qualify as murder, except for the
application of a partial defense (like provocation, diminished capacity, etc.)
 Actus reas: Killing someone
 Mens rea: Intent to kill, BUT there is some set of circumstances that mitigates the intent
 To determine whether jury should be instructed on voluntary manslaughter –
1. D was actually provoked and actually acted in a heat of passion
2. A reasonable person would have been provoked and acted in a heat of passion
3. D did not have time to cool off between the provocation and the killing
4. A reasonable person would not have had sufficient time to cool off given the circumstances
 Three approaches to measure “reasonableness” –
(1) Early common law categorical test (AMBRO IL)
 In addition to the four above, there must be (5) a legally adequate provocation:
 Aggravated assault of battery
 Observation of a serious crime against a close relative
 Illegal arrest
 Mutual combat
 Catching spouse in act of adultery
 Mere words are never sufficient (AMBRO IL = exception for series of events)
 LAP is a question of law – so judge decides if the circumstances fall within LAP
 If judge decides there is LAP, jury still determines the reasonableness of the LAP
(2) Modern objective reasonable person test (BERRY CA, CARR PA)
 Verbal provocation can be sufficient (BERRY CA)
 Provocation can arise over a series of events over a long period of time – doesn’t have
to be in one moment (BERRY CA)
 While mental illness might be considered, personal prejudice is not a factor in
determining reasonableness (CARR PA)
 See CA § 192(f) – provocation bc of victim’s gender identity, sexual
orientation, etc. is NOT objectively reasonable, even where victim made
unwanted sexual advances to D
o These are all immutable characteristics of victim so to allow would
basically be like allowing a hate crime
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 NOTE: Even though cts may use objective person test, they still make categorical
determinations, which are then precedent for the next case
 So there is some leeway between this test and the categorical test
 ex: Provocation bc of sexual orientation of others
o CARR PA – ct has decided that no reasonable person would be
provoked at the sight of gay sex, so gay sex will never be “LAP”
o See CA § 192(f) above
(3) MPC’s extreme mental or emotional disturbance standard (DUMLAO HI)
 Explanation for D’s disturbance must be reasonable, but we accept it from the
viewpoint of a person in D’s position / situation
 Broader / more subjective than modern reasonable person test
 Personal characteristics of D relevant
o MPC: Look to D’s gender, sexual preference, pregnancy, physical
deformities, etc. (DUMLAO HI)
o These are all immutable characteristics of D
 Cooling off period does NOT negate this defense
 Provocation need NOT come from the victim
 Jury has wider scope and more discretion than other tests
 Threshold matter is whether D has credible proof of excuse – then it goes to
the jury to see if it was reasonable
o ie, once mental illness is proven to judge (with paperwork, etc.) then
everything is reached by jury for their consideration
 vs. other tests – where threshold matter is whether LAP is fulfilled or not
Involuntary manslaughter (“IM”): Death brought about by “criminal negligence” – lease serious form
 Actus reas: Someone dies bc of some action by D
 Mens rea: Usually gross neg or [mere] recklessness (but see Williams)
o Difference between neg and recklessness: Was D aware of the risk?
 See NY and OH definitions of mental states in “Mens rea” above
 NY Ct App says that you CAN’T be both reckless and neg at same time bc logically at
odds, so in NY, D should never be charged with both IM and depraved heart murder
 BUT, Welansky suggests otherwise
o WELANSKY MA: Standard is recklessness but definition of recklessness includes both
recklessness and gross neg – no mere neg in MA
o WILLIAMS WA: Standard is mere neg – violation of duty of special relationship, so almost like
tort-level neg
 Using mere neg makes Williams an OUTLIER
o To figure out which mens rea standard to use – look to statute and common law of JD!
 NOTE – there is also “misdemeanor manslaughter”, but we do not study this
o This is basically baby version of FM
HOMICIDE – CASES
State v. Bingham, WA 1986, p.327  MURDER 1 but acquitted

1. F: Leslie Cook, a mentally handicapped woman, was found raped and strangled; she was last seen with Bingham;
evidence suggests they met on a bus a few days before her body was found; strangulation renders a victim
unconscious after a few second but requires 3-5 minutes for death
2. Rule: First degree murder requires a “premeditated intent to cause the death of another”
a. Definition of “premeditation”: look at (1) statute – premeditation “must involve more than a moment in
time”; and (2) WA case law – the “mental process of thinking beforehand, deliberation, reflection,
weighing or reasoning for a period of time, however short” AND/OR “the deliberate formation of and
reflection upon the intent to take a human life”
b. State’s arg: B formed the intent to kill her when he began to strangle her and the 3-5 min that it took to
do so demonstrate that it was premeditated
c. B’s arg: An element of time alone is not enough to indicate premeditation
3. H: Manual strangulation and the time it took is insufficient evidence to support a finding of premeditation
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4. R: Having the opportunity to deliberate (ie, the beginning of strangulation and the 3-5 min required to perform it)
does not mean that B necessarily did deliberate; he could have strangled her bc he wanted to quiet her
a. Using a time element as sole proof of deliberation would be a slippery slope bc that would mean that any
killing which took more than a moment could be shown to be premeditated
b. Also basically says that bc he was in the process of raping her, he maybe couldn’t have formally
deliberated about killing her bc mind was elsewhere
5. Dissent: Maj frames premeditation as anything that takes place before the commencement of the act, but it’s very
possible that premeditation exists in cases where the act of killing takes a while; the facts about strangulation
undermine mag’s args about intent in w/ regard to rape + quieting the victim; jury is entitled to find this is enough
Gilbert v. State, FL 1986, p.331  MURDER 1

1. F: G admits to killing his wife with gun; she had osteoporosis and Alzheimer’s so was in pain and frequently
confused; told G on at least one occasion that she wanted to die bc she was in pain and sick; otherwise, evidence
that they had a very happy marriage; G claims he did so bc he wanted to “terminate her suffering” and didn’t see
any other way to end her life happily
2. Rule: Florida Statutes 782.04(1)(a)1 – mandatory minimum sentence of 25 years for premeditated murder
a. Premeditation and intent are NOT the same thing  premeditation is a higher bar than intent
3. H: The statutory mandatory minimum sentences does not allow for consideration of mitigating factors
4. R: The statute is very rigid and there is no room to consider mitigating factors like the fact that G was allegedly
trying to act out of mercy or the fact that there is no indication he will ever kill again; it is up to the leg to change
the laws if they want
a. Also dismisses idea that this was NOT premeditated – good faith is not a legal defense bc there is no
evidence of a mercy will of the wife (saying she wants to die is not enough)
5. Concurrence: Takes a nonconsequentialist retributivist view of punishment – maj shouldn’t have distinguished
what G did versus a contract killer; the wife would have been equally dead if either killed her so doesn’t matter
Lacey case (NY Times 2015) – found guilty of 2nd degree murder for killing her 5yo son by force feeding him sodium; not
much ev (though did find bags w/ high traces of sodium) but vlogged about his LT “illnesses”; perhaps case of
Munchausen by proxy?
NYPD cop case (NY Times 1987) – cop shot other cop while both off duty after St-Patrick’s day party; @ trial, jury was
instructed on int’l murder and depraved heart murder and found him guilty of both int’l murder and reckless manslaughter
(lower charge to depraved heart); NY Ct App ordered new trial bc impossible for someone to be acting intentionally
(conscious objective of killing vic) AND recklessly (conscious disregard of unjustifiable risk of vic’s death) at same time
w/ regard to same crime
People v. Ambro, IL 1987, p.340  VM @ common law

1. F: D killed wife; married 9 years but had marital problems and lots of args for last 7; she was initiating a divorce
at time of death; night of death, had major arg about how he had no right to children and that she was sleeping
with another man; husband was doing dishes and had knife in his hands when she said “I know you want to kill
me. Pull that knife and make it easy for me”; D convicted of murder but argues jury was erroneously NOT given
instructions on voluntary manslaughter
2. Rule: IL Crim Code §9-2(a) – voluntary manslaughter arises where, at the time of the killing, the person is acting
under “sudden and intense passion resulting from serious provocation by the individual killed”; “serious
provocation” is conduct sufficient to “excite an intense passion in a reasonable person”
3. H: Under IL law, these circumstances fall within the type of provocation necessary for voluntary manslaughter, so
new trial should be ordered w/ these instructions
4. R: “Passion” for voluntary manslaughter must be engendered by circumstances already recognized by law of
being reasonable; this case falls within IL’s common law exceptions to the historical qualifications
a. Historically, the only areas where provocation was recognized was (1) physical injury or assault, (2)
mutual quarrel or combat, (3) illegal arrest, and (4) adultery
b. BUT there is an exception to this general rule where there was a history of ongoing marital discord, a
wife who evidenced an intent to permanently leave her husband, insulting remarks concerning the
husband’s masculinity, and an announcement of adultery by the wife (see Alhberg and Carr)
i. So a series of events are an exception to the rule that mere words are never sufficient
c. The facts here meet all of these criteria and even goes beyond bc she goaded him into killing her
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People v. Berry, CA 1976, p.346  VM for reasonable person
1. F: B and victim were married for ~1 month before he strangled her to death; on previous occasion, he choked her
into unconsciousness; she was from Israel and, after marriage, returned there where she met a man and fell in love
with him; she allegedly taunted B about it and demanded a divorce; B’s expert witness testified that she was
“suicidally inclined” and that, in provoking B, “she achieved her unconscious desire” of having him kill her; B
convicted of murder 1 after judge refused to instruct jury on voluntary manslaughter
2. Rule: Voluntary manslaughter is “the unlawful killing of a human being, without malice under a sudden quarrel or
heart of passion”
3. H: The determination of whether he committed an offense under heat of passion is one for the jury to make and
judge should have allowed instructions on voluntary manslaughter
4. R: Heat of passion is what would be naturally aroused in the mind of an ordinarily reasonable person under the
given facts and circumstances; verbal provocation is sufficient; this arousal can occur by a series of events over
time; P argues that the 20 hrs between last encounter and death was a cooling down period, but ct says that his
provocation might have simmered and reached culmination when he saw her after this time; there is enough
evidence to suggest HOP so jury should have been instructed on it
Commonwealth v. Carr, PA 1990, p.363  VM for reasonable person

1. F: Victims were lesbians hiking on Appalachian trail; C saw them while they were having sex and killed them
both; found guilty of murder 1; appealed, arguing that his psychosexual history should have been considered by
judge and that he should have been found guilty of voluntary manslaughter
2. H: Sight of lesbian lovemaking not legally adequate provocation so voluntary manslaughter not appropriate
3. R: PA requires a legally adequate provocation and this is an objective test; in making determination what
constitutes LAP, the test is “whether a reasonable man, confronted with this series of events, [would have
become] impassioned to the extent that his mind was ‘incapable of cool reflection’ ” and reliance may be placed
upon cumulative impact of a series of events; BUT the actions of the victims in establishing the provocation must
be tied directly to the killing; here, a reasonable person would not have been so impassioned by the sight of their
gay sex, esp when he didn’t even know them
4. NOTE – ct lays out rule that gay sex is not a legally adequate provocation; so though it’s relying on an ~objective
reasonable person test, it is basically creating a categorical distinction
State v. Dumlao, HI 1986, p.366  VM under MPC

1. F: D shot and killed MIL; at trial, his expert witness testified that he suffered from paranoid personality disorder,
meaning he had (1) unwarranted seriousness, and (2) hypersensitivity manifesting in insane jealousy re his wife;
generally abusive to wife; her fam didn’t like him and got in fights with him about it; D said that night of killing,
he got in fight with his BIL (who “rushed at him with knife”) and his gun went off, accidentally hitting MIL;
convicted of murder but asked for jury instructions on manslaughter, which judge refused
2. Rule: HRS §707-702(2) – Voluntary manslaughter is causing death of another “under the influence of extreme
mental or emotional disturbance for which there is a reasonable explanation” + the “reasonableness of the
explanation shall be determined from [the POV] of a person in defendant’s situation under the circumstances as he
believed them to be”
a. Based on MPC
3. H: Jury should have been instructed on manslaughter bc there was sufficient evidence to suggest to judge that “he
suffered an ‘extreme mental or emotional disturbance’ for which there was a ‘reasonable explanation’ when the
totality of circumstances was judged from his personal viewpoint”
4. R: MPC requires factfinder to focus on D’s subjective situation (including is sex, sexual preference, pregnancy,
physical deformities and similar characteristics); NO requirement that provocation arises from the victim; D’s
expert witness testified as to a legit mental disorder that would explain his behavior
People v. Knoller, CA 2007, p.376  depraved heart

1. F: Knoller and husband Noel adopted four large dogs; dogs had been bred for illegal dogfighting business;
multiple ppl (vet, previous owner, trainer) told them dogs were dangerous and might attack humans and suggested
they be put down; in ~9 months b/w adoption and victim’s death there were approx. 30 incidents involving them
which Ds knew of; when neighbors complained (lived in apt building), Ds responded “callously”; two dogs
attacked victim Whipple in hallway of building + evidence suggests that Knoller was there during attack; Knoller
found guilty of 2nd degree murder + Noel guilty of IM
2. Rule: Murder is the unlawful killing of a human with malice aforethought; malice aforethought can be implied
“when the circumstances attending the killing show an abandoned or malignant heart”
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a. Trial ct said that 2nd degree murder requires that D “subjectively knows, based on everything, that the
conduct that [they were] about to engage in has a high probability of death to another human”
b. App ct said that it requires “subjective appreciation and conscious disregard of a likely risk of serious
bodily injury”
3. H: BOTH trial ct and app ct were wrong – 2nd degree murder requires either express or implied malice; implied
malice means that K “acted with a conscious disregard of the danger to human life”
a. Sent back to trial ct to consider K’s motion for new trial based on Supreme Ct’s definition of malice
4. R: Trial ct’s definition of malice sets bar too high (probability is not good bc then opens can of worms for stats,
measuring it, etc.) but app ct’s is too low (bc injury < death)
a. We don’t want jury to think that this is a general meaning, bc it does + should have a specific meaning
i. This is why court moves away from Thomas as a precedent
ii. Still Philips is not much better bc this lead to the high probability language
Commonwealth v. Welansky, MA 1944, p.386  IM

1. F: W owned a popular club in Boston; though usually oversaw the operation was in the hospital for 3 weeks
during accident; waiter went to light a bulb that was out; in doing so, lit a match which caused a large fire;
emergency exits were locked(?); many ppl died (almost 1K ppl there that night); fire inspector had come 1 week
before and said everything was okay; W convicted of IM bc found guilty of wanton or reckless conduct
2. Rule: Judge instructed jury that IM required wanton or reckless conduct (different from mere neg) – even if
reasonable man would NOT have known of risk, if W did and disregarded it [this is reckless] OR even if W did
not know of risk, but reasonable man WOULD have, and W still acted [this is neg]
a. R: So they say the standard is recklessness but then there definition includes both recklessness AND neg
3. H: Jury instructions were correct – if the death of the patrons was due to is wanton or reckless disregard of their
safety, then he is guilty of IM
a. Does not have to be the case that he caused the fire by wanton or reckless conduct
4. R: In MA, there is no such thing as criminal neg, so IM requires recklessness or gross neg; he was exclusively
responsible for his patrons and their safety and had a higher duty to them bc of this; “fire in the place of a public
resort” is an obvious danger; he should have foreseen risk, therefore reasonable that his conduct consisted of
“intentional failure to take such care” in disregarding the “probably harmful consequences” to the “right of care”
of his patrons in the maintenance of his club
State v. Williams, WA 1971, p.390  IM

1. F: Ws’ baby developed a toothache, which eventually became gangrenous and bc he couldn’t eat, his immune
system was compromised and he died of a pneumonia; Ws were NAs with little formal education; loved the baby;
did not want to take him to doctor bc did not realize of the severity of the situation and bc were scared that they
would lose custody of him if doctors deemed they were neglecting him (knew of another couple that this
happened to); convicted of IM bc found guilty of ordinary neg and this neg was prox cause of baby’s death
2. Rule: RCW 9.48.060 + 150 – IM requires simply / ordinary neg
a. Actus reas: not seeking medical help for their child in the critical period before his death
i. Omission of duty to act under special relationship of parents (otherwise omission not actus reas)
ii. So note how ct latches on to the fact that Ws were physically + financially able to get a doctor –
bc if they couldn’t then law wouldn’t impose a duty on them
b. Mens rea: mere negligence – parents had a duty to exercise reasonable care for it
3. H: There was enough evidence to support finding that Ws breached duty of care for child in failing to seek
medical attn and this was prox cause of baby’s death therefore guilty of simple neg, which is sufficient for IM
4. R: Objective standard for simple neg –
a. Would a reasonable person in their place have realized they needed to seek medical attention? YES
b. At what point would a reasonable person have come to understanding that medical attn was necessary?
REASONABLE PERSON WOULD REALIZE DURING CRITICAL PERIOD
i. This is a causation issue
ii. Timeliness is important bc if a reasonable person would have realized after too late to save baby
then no breach; must come to realization during “critical period”
1. But if reasonable person would have noticed and done something during the critical
time where they could have saved baby, then the FAILURE to do so is the but for and
proximate causation
iii. Despite evidence that Ws legit did not realize how serious that the condition was and their fears
that baby would be taken away, no evidence to suggest they could physically/$$ get doctor or
that the symptoms did not continue to be a matter of concern to them
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iv. Therefore Ws put on notice of baby’s symptoms and reasonable person would have done
something about it
c. Failure to do anything = breach of duty (seeking medical attn for sick child = well accepted duty for
parents bc of special relationship) = simple neg = IM
d. Ct IGNORES their status as NAs + rejects their explanation that they were worried child services would
take their baby away
Hines v. State, GA 2003, p.404  FM

1. F: H was had been drinking and went turkey hunting with son and friends; thought he saw a turkey and shot at it;
in reality, he had struck and killed his friend; tried to hide evidence; convicted by jury of felony murder
2. Rule: FM elements: commission of a felony; cause death; the “irrespective of malice” is NOT an element [usually
we would have a mens rea element] bc this is basically a description; underlying felony must be “inherently
dangerous to human life”; “a felony is ‘inherently dangerous’ when it is ‘dangerous per se’ or ‘by its
circumstances creates a foreseeable risk of death’ ”
3. R: Possession of a firearm by a convicted felon while turkey hunting is inherently dangerous and can serve as the
underlying felony for a felony murder charge
4. H: Possession of a firearm by a convicted felon MIGHT be inherently dangerous depending on the circumstances
(so factual inquiry); here, he was drinking, went out at night, took an “unsafe shot” from 80 ft away at something
“that he had not positively identified as a turkey”
a. This is distinguishable from Ford v. State where the underlying crime was also possession of a firearm by
a convicted felon; there, D accidentally discharged a handgun through the floor, hitting a person in the
apartment below, but he allegedly did not realize there was an apartment / person there so did not know
of risk of hitting him
i. R: So in introducing an element of risk, it limits FM as a doctrine that otherwise does not
require a mens rea
5. Dissent: Ford doesn’t tell us ACTUALLY anything about how to determine if something is inherently dangerous;
rule should be that a felony is inherently dangerous if it carries “a high probability that [a human death] will
result”; under this rule, these circumstances are not inherently dangerous; this will help distinguish b/w those
felonies morally worthy of carrying a harsh murder sentence and those that aren’t
a. Also concerned with precedential effect – hunting in GA is popular and encouraged by state; there are
likely many hunters that act negligently like H so now we are opening up liability for all of them
People v. Howard, CA 2005 [Canvas]  FM

1. F: H was driving stolen vehicle, resulting in police chase; was going approx 80mph, drove through at least 1 stop
sign, driving with lights off, drove on wrong side of road; eventually hit another car, killing passenger
a. Underlying felony: evading a police officer in willful or wanton disregard for the safety of persons or
property is vehicle violation  § 2800.2(b) states that “willful or wanton disregard” in the statute can be
measured by violating at least 3 traffic rules OR damaging prop
b. FM: CA uses common law principle and determines whether – in the ABSTRACT – the underlying
charge is “inherently dangerous to human life”  so inquiry is whether it’s dangerous per se
2. H: Evading a police officer in willful or wanton disregard for the safety of persons or property is NOT inherently
dangerous for the purpose of FM
3. R: The violations that the statute prescribes are – in and of themselves – not inherently dangerous therefore the act
altogether cannot be said to be
a. Bc some things in statute might be considered inherently dangerous but some are NOT, we cannot say as
a whole that the crime itself is inherently dangerous; when looking @ it in the abstract – the underlying
felony ALWAYS HAS TO BE INHERENTLY DANGEROUS in any fact pattern imaginable
b. Rejects appeals court’s determination that it IS inherently dangerous bc they failed to look at the statute
as a whole + leg action in amending the statute and including subsection (b), they took the statute out of
the realm of FM = leg intent NOT for it to be FM
4. Conc / dissent: Agrees that underlying charge is not inherently dangerous but thinks with non-statutory common
law FM murder is unconst; doesn’t outright say this but gist is – statute is not clear as to what is proper underlying
felony for FM and what isn’t; this has const problems for DPC (void for vagueness)
5. Dissent: The purpose of FM is general deterrence and the idea of it is that, by declaring the felonies themselves to
be inherently dangerous, courts can imply the malice necessary for murder as a matter of law; the plain lang of the
statute indicates that it’s inherently dangerous; if leg did NOT want this to be so, could have explicitly said
a. Goal: control behavior at the margins – so if you’re going to commit a felony, do it as carefully as
possible
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Chicago FM (Chicago Reader 2016): Tevin Louis and bff Marquise Sampson robbed a store; police chased them and shot
S (L wasn’t even there) but L was convicted of FM for it (32 years for robbery and 20 for FM); officer was commended for
his actions but suggestion of history of misconduct + police brutality; 10 other similar cases in past 5 years; Tristan Scaggs
has similar story – in car with 2 friends when police shot them each dozens of times and charged with FM of his friends
(acquitted) but ultimately convicted of attempting to kill the officers; many states (eg, CA, PA, MD) require that killer be
an agent to the underlying felony but not IL, which is why cops can push their actions onto Ds
 If you’re purely retributivist, you’ll probably say that look someone died so you need to be punished
 BUT if you’re looking @ this from deterrence goal, evidence suggests that this will not accomplish anything
FORCIBLE RAPE
Policy considerations – how best to craft a rape statute?
 What exactly is the social harm of rape?
o Is it purely the forcible taking of sex?
o Is it more like a battery or assault? Can it be analogized to some other area of criminal law?
 MTS NJ tries to analogize rape to assault in looking at the leg’s intent
o Or is the harm something unique to sex-based crimes?
 What are rape laws really designed to protect?
o Is it a Victorian-era concern over women’s honour?
o More modern view of protecting ppl’s sexual autonomy?
 Is all rape equal? – look to
o Mens rea
o Relationship b/w the offender and the victim
o Presence or absence of violence in the act
o Presence or absence of consent in the act
 Doctrinally, what is the best way to further goals of preventing and redressing rape and protecting the rights of
offenders?
o In American law, we put the BOP on the prosecution, not D – but in crafting statutes to this effect, this
seems to be contrarian to the desire to prevent the rape in the first place
 eg, RUSK MD approach places burden of both preventing rape on the victim AND then at trial,
the burden on the victim of establishing the lack of consent (negative thing to prove as opposed
to affirmative)
o Low bar for force (ie, MTS NJ) shifts burden off of victims from preventing their own sexual assault
 BUT force element low key helpful to prevent – how else can we differentiate between actual
rapes and cases where victim is just making things up?
o If we define things very specifically in a statute (narrowly, enumerated items, etc.), then this leaves room
open for things NOT to fall within the crime defined by the statute bc it was probably not something
contemplated by the drafters
 Courts tend to read rape statutes very narrowly
 BUT you do need to draw a line somewhere!
 Is the justice system really the best way to address rape?
o Would tort law or some sort of mediation do a better job at affecting goals?
o EL: Like Anderson’s negotiation model but sounds almost like it would impose strict liability so not sure
that this is best suited for the criminal system
ELEMENTS OF FORCIBLE RAPE –
Historic elements of rape at common law: (1) sexual intercourse, (2) by a man, (3) with a female that was not his wife,
(4) by force (proven by her “utmost resistance”), and (5) without the victim’s consent
 Obviously, this is a VERY narrow definition that does not reflect modern notions of sexual autonomy, gender,
power, etc.
 Notably does not cover gay rape OR marital rape
o Note that AL § 13A-6-60 through -62 still only covers heterosexual rape
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Modern view of forcible rape:
 Actus reus: Active penetration without consent

 Mens rea: If D has honest and reasonable belief that Vic consent, he is not guilty (majority rule, MTS NJ)
o Therefore this is a NEGLIGENCE standard – doesn’t matter what D actually knew or thought as long as
a reasonable person would be able to gage the situation
o Rape is a GENERAL INTENT crime – so mistake of fact available in many JDs
o Note that mens rea usually not expressed in the JD’s statute, but is defined instead by case law
o Note the bizarre interaction of mens rea and rape –
 Mens rea is concerned with D’s SOM at the time of the crime, but this is almost flipped in rape
cases and we inquire about the victim’s SOM in their consent (or lack thereof)
o When there is a violent sexual offense with obvious force, there usually is no question about the victim’s
lack of consent
 This is fine when we are dealing with the historical image of rape
 BUT does not translate well to acquaintance rape – which is overwhelming how rape occurs
Basic modern elements –
 Sexual intercourse
o NOTE: Other kinds of sexual acts are also protected by statute, but forcible rape only covers penetration
 By force OR threat of force
o Force and lack of consent are very intertwined – see below
o RUSK MD is exemplary of common law approach (or pre-reform)
 At common law, force was a necessary byproduct of the element of lack of consent bc the theory
was that if non-consensual, then she would resist, thus D had to use force to overcome her lack of
consent and perpetrate the rape (explained in MTS NJ)
 OBJECTIVE TEST for what fulfills the force requirement:
 Did victim resist and this resistance was overcome by force? OR
 Did D use threat of force to prevent her from resisting?
 Here, force is low key still measured by the victim’s lack of consent
 If gov’t has to prove that victim physically resisted, then it is usually pretty obvious that she never
consented – so lack of consent often proven through existence of force
o BERKOWITZ PA adopts a middle ground
 SUBJECTIVE TEST: Under the totality of the circumstances, was victim forced to engage in sexual
intercourse against their will?
 Factors: Ages of the parties, physical and mental conditions, atmosphere and setting,
authority of one party over the other, duress, etc.
 Force element met with showing of moral, psychological, intellectual, or physical force
 Here, force and lack of consent are still intertwined but makes room for various factors to contribute
to what constitutes force
 SO here, you have to start showing more proof of consent bc you don’t have to show as much force
o MTS NJ almost eliminates the force requirement
 The only force that’s necessary is the force to overcome the victim’s lack of consent – ie, if the
victim did not consent, then force is presumed
 Force and lack of consent therefore still intertwined, but lack of consent becomes the primary
inquiry
 Penetration can be the force
 So the threshold for force lowers with each of these, but then there is a much higher / harder bar to
show lack of consent
 But note that this doesn’t necessarily mean that there is a lower burden for the gov’t
 Without the victim’s consent
o Force and lack of consent are very intertwined – see above
 RUSK MD sees force as necessary element in proving victim’s lack of consent
 BERKOWITZ PA sees lack of consent as a necessary element of proving forcible compulsion
 Note that consent is not even an element of PA’s rape statute
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 MTS NJ sees force as implied if victim did NOT consent – so main inquiry is about consent
o Majority rule: NEGLIGENCE standard – if a reasonable person would know that the victim was not
consenting, then D is criminally liable (MTS NJ)  didn’t know but should have known – so not explicitl
negligence but close
 Does NOT matter what D actually knew or thought
 Permission can be implied through actions OR words
 How does this interact with mistake of fact?
 In non-MPC JDs, D would have to show that he reasonably and in good faith mistook the
victim’s consent
 In MPC JDs, would have to show that his mistake about her consent negates the mens rea in
the statute (so bc it’s usually neg – is this the same thing bc also comes down to
reasonableness???)
o MPC (unofficial 2016 draft) –
 Consent: Willingness to engage in a specific sexual act
 Express or inferred from words and conduct (either action or inaction), using a totality-of-the-
circumstances inquiry
 Can be revoked at any time – but this revocation can later be “overridden by subsequent consent”
 Verbal refusal establishes lack of consent or revocation of previous consent
 NO verbal or physical resistance required – but can be relevant to the total inquiry
CA § 261.6: Consent…
“Consent” shall be defined to mean positive cooperation in act or attitude pursuant to an exercise of free will. The person must act
freely and voluntarily and have knowledge of the nature of the act or transaction involved.
Development of rape reform jurisprudence:

 Pre-reform common law approach (RUSK NJ)
o Focus is on force and lack of consent
 RUSK: “Force is an essential element of the crime of rape and to justify a conviction, the
evidence must warrant a conclusion either that the victim resisted or that her resistance was
overcome by force OR that she was prevented from resisting by threats to her safety”
o Favourable to Ds
o Problems with the historical approach of the law –
 Places too much of the burden on the victim
 This effectively puts the burden of preventing rape on the victims
 Can create long lasting psychological harm to victims –
o Can be traumatic for victims to prove this at trial
o Why would a victim ever come forward if she will be subjected to this?
 Not realistic to expect victims to physically resist (dissent in RUSK)
 Women often scared if they get physical with attackers, they will be hurt even more so
they use “passive resistance” like words, general excuses, etc.  verbal resistance is
resistance
 Common psychological reaction to rape is to have a “controlled reaction” like hers
 Midway approach (BERKOWTIZ PA)
o Retains force element but defines it more broadly
o Slightly less favourable to Ds than common law approach
 Modern “reform” approach (MTS NJ)
o Focus is on the issue of consent and illustrate the purpose of protecting the victim’s sexual autonomy
o Different reform models for consent (Negotiating Sex, Michelle Anderson, 2005, p.481)
 No Model: A woman’s consent is presumed unless and until she verbally says “no” to a man’s
advances, and anything after that is rape
 Criticism: this does not acknowledge the psychological reality that many victims are
silent so it does not account for these rapes
 Yes Model: A man must obtain affirmative permission from his partner before sex – can be
verbal or nonverbal but silence alone does not constitute consent
 Antioch College: affirmative consent is required at every escalating step of sexual
relations
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 Criticisms: This relies on men’s capability to infer consent from body language, which
they scientifically cannot + this doesn’t account for gradated sexual experiences
 Negotiation Model: Partners must have a communicative exchange about whether they want to
have sex, and if they don’t it can be presumed to be non-consensual – so rape occurs any time
this negotiation does not happen
 This is author’s idea / suggestion
 Justification: The other models put the onus on the woman to say or do more – this
model flips the burden onto the man to make clear that he must seek consent before
acting
o Ways that JDs attempt to correct problems with common law approach –
 Eliminating the requirement that the prosecution prove the victim’s resistance in order to prove
the “force” element
 But evidence showing lack of resistance may be used to prove that the victim in fact
consented (BERKOWITZ, PA statute §3107 that “resistance not required)
 Eliminating the element of force altogether (while still allowing some evidence of force to prove
lack of consent)
 Eliminating a requisite consent element – though it might still require a showing of NON-
consent
FORCIBLE RAPE – CASES
Rusk v. State, MD 1979 (intermediate ct app), p.434

1. F: Victim met R at a bar where they chatted (for approx. 10 min); he asked her for a ride home; she drove him to
area that she was completely unfamiliar with; she parked car but left ignition running; he asked her to come inside
but she refused and gave him excuse; he took her keys and came to her side of car and asked her again, and this
time she agreed; she was terrified the whole time; he started to undress her and she allowed this and took off his
clothes (bc he demanded); he “lightly choked her” and then they had sex; he asked for her phone number and she
gave vague excuse that she would see him again at the bar; she left and wondered what had happened to her, and
then figured she should report it to police
1. Rule: Rape in the second degree – §463(a): when a person (1) engages in vaginal intercourse with another person,
(2) by force or threat of force, (3) against the will, and (4) without the consent of the other person
a. Force – MD Ct App (highest) in Hazel v. State: “Evidence [of force] must warrant a conclusion either
that the victim resisted or that her resistance was overcome by force OR that she was prevented from
resisting by threats to her safety”
2. H: R’s actions do not constitute force or threat of force so rape conviction reversed (no evidence)
3. R: Hazel rule is important to make sure that victim’s aren’t making things up; Winegan – this ct said that there
must be evidence of physical force (victim’s wounds, bruises, disordered clothing), but where victim’s story can’t
be corroborated with physical evidence, “lack of consent could be shown by fear based upon reasonable
apprehension”; evidence shows that nothing R did amounted to a reasonable apprehension in victim (generally
writes off all her claims); further, in re victim’s conduct and thoughts afterwards, ct says that if she didn’t know
what to make of it how could the court definitely call it rape? – the necessary threat of force is NOT that at which
point “her will to resist” was overcome
a. Generally uses a very OBJECTIVE test to determine what amounts to force / threat of force
4. Dissent: Basically is like wtf is maj thinking –
a. Majority erred bc they substituted their judgment on the evidence for that of the trier of fact – this is not
their role as appellate court
b. The issue here is not a question of whether she consented (she didn’t) but whether he used force (he did)
i. Majority overlooks the distinction between these two
ii. Line is often blurred bc of antiquated notion that victim must actively resist her attack – if she
doesn’t resist, this is viewed as consenting
c. Need to look at evidence much more SUBJECTIVELY – she was in an area she was entirely unfamiliar
with and he had her keys; he demanded she come with him; he did get physical in lightly choking her
i. Don’t know anything about the parties – size, build, etc.; inflection of his voice when he was
making his demands; his general behavior
ii. This is why trial cts judgment is important – bc app ct has no idea of any other the other
circumstances and at least trial ct can judge the witnesses’ credibility
d. Her behavior and reaction was entirely common + cites FBI studies to back up
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i. Women often scared if they get physical with attackers, they will be hurt even more so they use
“passive resistance” like words, general excuses, etc.  verbal resistance is resistance
ii. Common psychological reaction to rape is to have a “controlled reaction” like hers
e. Rape jurisprudence must consider (1) how rapes occur, (2) how they may be prevented, (3) how a victim
can best protect herself
f. Benefit of getting rid of resistance requirement (see next cases): (incorrectly) puts the burden on the
victims + more in line with assault cases
5. NOTE – R also convicted of assault which REQUIRES force
Commonwealth v. Berkowitz, PA (intermediate app) 1992, p.452

1. F: B convicted of rape and indecent assault (1-4 years for rape with concurrent year for assault); B and victim
were college students and kind of new each other; one afternoon, victim entered B’s dorm room while looking for
his roommate; he initiated sexual contact by “kind of” pushing her onto the floor with his body and kissing; he
eventually locked the door (but this would only shut it from outside) and put her on the bed; he had sex with her;
she kept saying no throughout the whole thing but no other acts of resistance
2. Rule: § 3121 – Rape: when a “person engages in sexual intercourse with another” … (1) by forcible compulsion;
(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution”; BUT
§3107 says that the victim need not resist for the act to be rape
a. PA Supreme Ct – Rhodes: Forcible compulsion includes physical force / violence, moral, psychological
and intellectual force
3. H: There is not enough evidence to establish forcible compulsion so rape conviction is discharged
4. R: Though the language of (2) suggests that this is an objective test, it is actually a subjective one requiring a very
factual inquiry of the totality of the circumstances, including the ages of the parties (20 vs. 19 so in favour of D bc
no large age difference), physical and mental conditions (nothing to speak to difference in physical conditions
other than that shewas voluntarily drunk), atmosphere and setting (his room so meh), authority of one party over
the other (none), duress, etc.;
a. Main test = under the totality of the circumstances, was victim forced to engage in sexual intercourse
against their will?
i. Here, there is no evidence of mental coercion or duress and B never threatened victim
ii. No physical force – he did not pin her to the bed or floor, etc. + she knew that the door would
open from the inside if she tried to open it
1. This raises interesting question about who’s perspective we need to look at – do we
accept his view that reasonable person would understand that locking door is not a
threat bc she could get out OR hers that reasonable person would understanding this to
be a threat
iii. No evidence of different sizes of parties that would explain the other lack of force
iv. The fact that this happened rapidly does not show force
v. As the statute appears, merely saying “no” (even if repeated) is not enough to show forcible
compulsion - distinguishes prior cases where verbal refusal was important to decision bc those
cases also included evidence of physical force
b. ALSO – if leg wanted to define rape as merely non-consensual intercourse it could have done so
c. Decision does make clear that lack of consent ≠ lack of resistance – but here even though she did not
consent, her resistance wasn’t enough to merit finding of forcible compulsion
Wrongfully witness testimony article (NYT 2000): Author was raped in her apt in early 1980s; thought she studied her
attacker well; identified him as Ronald Cotton; at trial and 2nd trial after appeal, testified it was him; at time of 2nd trial,
another inmate was claiming it was actually he who raped her; he was sentenced to life in prison; 11 years later, DNA
evidence showed that it was not Cotton by Bobby Poole who raped her; Cotton released from prison; now understands that
single-eye-witness convictions are inherently flawed
 Cross racial identification = big problem area – eyewitnesses generally unreliable
 Today, NY is one of 3 states (NJ + MA are two others), jury must be instructed on the unreliability of this
Dallas jury article (Dallas News 2016): Cesar Vega convicted by jury of sexual assault of a 13yo relative; after verdict, 3
members of jury approached judge and told him they were forced into this verdict by the other members of the jury; Vega
requested new trial but the judge denied it and sentenced Vega to 10 years in prison; now seeking new trial on grounds of
jury misconduct (not supposed to deliberate unless all together, etc.); 3 members feel horrible
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State of NJ in the Interest of M.T.S., NJ 1992, p.461

1. F: MTS (perp) and CG (victim) lived in the same house; after alleged flirting and discussion about it, he went up
to her room and engaged in sexual contact and then sex; she claims she was asleep when she woke up to find him
having sex with her; he says she was active and willing and then told him to stop mid-sex
2. Rule: Sexual assault – committing “an act of sexual penetration with another person” where “(1) the actor uses
physical force or coercion …”
a. Gov’t’s arg: “physical force” is anything that is not consensual
b. MTS’ arg: “physical force” is whatever is used to overcome the victim’s lack of consent (so more along
lines of actually forcing the sex)
3. H: Any act of sexual penetration without the consent of the victim is a sexual assault, so physical force in excess
of the force necessary to have non-consensual sex is not necessary
a. “The definition of ‘physical force’ is satisfied … if the D applies any amount of force against another
person in the absence of what a reasonable person would believe to be affirmative and freely-given
permission to the act of sexual penetration”
4. R: Meaning of physical force is not clear under a plain meaning analysis (dictionary definitions of force differ), so
must look to leg history and intent; NJ laws rewritten in 1979 and were clearly designed to move away from
archaic view of rape which was flawed by victim blaming and focused too much on victim; instead, leg placed
“primary emphasis on the assaultive nature of the crime” and aligned it more like a battery; removed the
requirement that victim must resist; so this reading of “physical force” is in keeping with the leg’s desire to
remove burden on victim
a. What does this case tell us about the standard of affirmative permission?
i. Ct’s rule: “permission is demonstrated when the evidence … is sufficient to demonstrate that a
reasonable person would have believed that the alleged victim had affirmatively and freely
given authorization to the act”
ii. No requirement that it be verbal
iii. Can be inferred from action / behavior – judged from view of a reasonable person
1. So now we need to look at defendant’s SOM – what is the mens rea now?
2. Intent? No  mens rea for rape in NJ is not to INTEND to have non-consensual sex
3. Know? No – too high
4. Recklessness? Seems to high  eg, this would require that you KNEW someone was
super drunk and couln’t consent and disregarded this
5. Negligence? YES  no requirement that you are actually aware of the risk – if a
reasonable person would know that the other person was super drunk and couldn’t
consent, if you had non-consensual sex you are guilty (doesn’t matter if you actually
did or not)
iv. Question’s left open by case – do we use the standard of a reasonable person at 17 or a
reasonable adult? Unclear
DRUG CRIMES
Policy considerations –
 Is drug use a criminal issue or a health crisis? Is the criminal justice system really the best way to deal with it?
o In 2017, deaths from overdose were ~70K (up from ~50K in 2015)
 This is largely due to the opioid crisis that has sprung up in the last 5 years
 vs. car crash and gun-related deaths both around ~40K in 2017
 The US has very strict drug laws and arrests and jails a massive number of people in relation to drug crimes
o Stemming from War on Drugs era
o Annual spending in US on drug crimes: > $51 trillion
o Perhaps most notably, the US has very strict laws relating to what we would probably consider to be
more “minor” offenses – ie, less morally blameworthy
 FBI says in 2017 1.47M people were arrested for “drug abuse violations”
 Of these arrests, 1.13M were for possession offenses  the MOST MINOR DRUG CRIME
 Of these, ~500K were for marijuana possession
 But note that this number has fallen in recent years
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 Related to this, there is a serious issue of race in enforcement of drug crimes

o Systematic bias in criminal justice system – see generally race issues in regards to judges, collateral
consequences, etc.
o Disparate enforcement among Black and white communities
 Both have roughly the same rates of drug use (esp with regards to marijuana)
 Proportion of Black or Latinx ppl in prison for state drug crime: 57%
 Legalization of marijuana!
VARIOUS TYPES OF DRUG OFFENSES –
Unlawful possession: Basically, knowingly possessing any kind of classified substance

 Unlawful possession is a lesser included offense of possession with intent to distribute – same elements but
possession with intent to distribute has a second mens rea
IL § 570/402: Possession unauthorized by this Act

Except as otherwise authorized by this Act, it is unlawful for any person knowingly to possess a controlled … substance
Elements: Knowingly, possess, controlled substance
 Mens rea: Knowledge of possession

o NOTE: WHITAKER CO suggests that the quantity is not relevant (ie, knowledge at all is what is important),
but this was a possession with intent to distribute charge – NOT just possession
 Actus reus: Possession of the drugs – can be actual OR constructive
o Actual possession: it is literally on D’s person
o Test for constructive possession: intention and capability to possess (– IN RE KA IL)
 ie, could D have possessed the drugs if he wanted to? – did D intend to exercise control / dominion
over the drugs?
 Note that this intent is distinct from the mens rea bc that is knowledge
 But remember that intent to possess requires a basic knowledge of the drugs!
 ~ 1st step: Did D have exclusive control over the premises where the drugs were found?
 Presence alone is NOT sufficient to prove control over the premises
 Best way to prove: Was it D’s apt?
o Look at name on lease, who pays bills, presence of personal items, etc.
 Exception: Drug houses
o Drug house: A “dwelling not used as a primary residence but instead as a center
for the packaging and distribution of drugs”
 Typically “contains very little or no furniture, appliances, food, or
clothing”
o Even if the premises were D’s, if there is evidence that the place was a drug house,
then the prosecution must prove further exclusive control
 ~ 2nd step: Is there circumstantial evidence to show constructive possession?
 If there is reasonable doubt based on circumstantial evidence, then there is no constructive
possession
 Various factors (especially in case of drug house) –
o D’s fingerprints / DNA on the drugs or drug paraphernalia [none]
o Evidence that D had been in the apt before – especially if frequent visits [none]
o Evidence that someone had exclusive control of the premises
 ie, could anyone get in there or was it highly secured? [door was broken
due to previous drug raids so anyone could enter]
o How long had D been in the premises before caught? [25 minutes]
o Drug residue found on D [none]
 Must be in light of other existing evidence though???
o Whether D has any $$ on them [$140 but his mother testified that she had given it
to him for innocent purpose of buying some new clothes]
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o Flight itself is NOT sufficient to prove constructive possession – but it is not
irrelevant to the inquiry
Unlawful possession with intent to distribute: Basically, knowingly manufacturing, selling, distributing, OR possess with
intent to do any of these things
 Unlawful possession is a lesser included offense of possession with intent to distribute
o Same elements but possession with intent to distribute has a higher mens rea
 Intent is higher than knowledge, but knowledge is a prerequisite of intent so subsumed by it
o You can be convicted of both but the sentences will be merged – bc the possession is the same thing in
both convictions
 Sentences for conviction may vary depending on the amount of drugs found – see eg WHITAKER CO
o Leg purpose: punishing those who deal with greater quantities more severely bc more morally
blameworthy and greater social harm
GA § 16-13-30: Possession, manufacturing, etc., of certain controlled substances or marijuana
(b) Except as authorized by this article, it is unlawful for any person to manufacture, deliver, distribute, dispense,
administer, sell, or possess with intent to distribute any controlled substance.
Elements: Knowingly, possession, controlled substances, intent to distribute
 Mens rea: (1) Knowledge of possession, and (2) Intent to distribute

o Though “knowledge” is not mentioned in the statute, it is necessarily included as a mens rea bc you can’t
intend to sell something unless you know that you have it
o Most states do NOT require the mens rea of knowledge to extend to the quantity of the drugs, just the fact of
possession (WHITAKER CO)
 RULE in NY: Ct App once said that this was an element, but leg has since changed law
o How to prove intent to distribute (- WILKINS NC, + JONES GA) –
 Is the quantity of drugs “substantial”?
 The problem is that it is unclear what “substantial” means
o Wilkins: 1.89 grams of weed is not substantial
o Jones: 2.7 grams of weed and 4-5 grams of meth is a “large amount” of drugs
 If yes, then this quantity alone is enough to prove intent to distribute; BUT, if not, then
there must be circumstantial evidence (WILKINS NC)
 JONES GA says no “bright line rule” so probably need to look at the rest of the evidence
regardless
 Taken together, what do the following factors indicate about D’s intent?
 Packaging, labeling, storage, etc.
o Wilkins: 3 dime baggies could have been there bc he bought them from someone
else, not that he was going to sell them
o Jones: 16 tablets of meth and 4 dime baggies of weed (which he claimed was for
personal use but his friend testified that he hadn’t smoke since he was a kid)
 D’s activities – did the police observe or watch some sort of sale? [no]
o Wilkins: No
o Jones: No sale, but D tried to flee when the cops showed up
 Presence of cash or drug paraphernalia
o Wilkins: ~ $1200 in many denominations, but accepted D’s claim that he got it
from cashing a check from his mother and was carrying this much cash bc he was
on the run avoiding his warrant
o Jones: ~ $400 in many denominations is a “large amount of cash”
 If still unclear, a policy officer may be able to testify as to whether they think the amount and value
of the drugs are consistent with distribution (only per JONES GA)
 Jones: Cop testified that based on his experience, the amount and packaging indicates that
D possessed them with intent to distribute
 Cop can testify either as a witness OR in their own opinion based on their experience and
training in drug enforcement
 This is significant for the prosecution bc makes their argument more efficient in not having
to bring in 3P experts
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 Actus reus: Either manufacturing, delivering, distributing, dispensing, etc. OR possessing the drugs with intent to do
any of these things
o WHITAKER CO suggests that for possession with intent to distribute, any amount of drugs found on D can
support a conviction where the statute is broken up between the elements and the sentencing
 So can be convicted even if less than a usable quantity – eg, residue
DRUG CRIMES – CASES
In re KA, IL App. Ct. 1997 [Canvas]

1. F: KA and friend Myron found in an apt during drug raid and KA fled; when officers entered, both found 1-3 ft
away from McDonalds box which was covering / hiding cocaine and 6 ft away from a hole in the floor containing
cocaine; apt was clear a “drug house” used for distributing cocaine – no one seemed to live there, no furniture
(only 1 chair), baggies found for distribution, etc.; KA claimed that M invited him to the apt to smoke a joint, but
no weed or thing to play music on found in apt; he had never been there before; door of apt was broken due to
previous (DEA?) raids so theoretically anyone could have gotten in; KA found with $140 cash on him and had
only there for 15 min before raid; convicted at trial of unlawful and knowing possession of cocaine
2. Rule: Per this ct, “[t]o establish the elements of unlawful possession … State must prove D’s knowledge of the
possession and that the controlled substance was in D’s immediate and exclusive control”
3. H: Overturns KA’s conviction
4. R: Possession can be actual OR constructive (ie, inferred); the overarching test for constructive possession is D’s
intention and capability to possess; factors include – was it in D’s apt?, did D intend to exercise dominion /
control over the drugs (but this is NOT intent as with mensr ea)?, etc.; flight by itself is NOT sufficient; here, not
enough evidence to establish constructive possession – was not his apt, maybe he didn’t even know that they were
there (hidden), etc.
Whitaker v. People, CO 2002 [Canvas]

1. F: D convicted of possession with intent to distribute meth and importing meth into CO; D was passenger on
Greyhound but coming from CA to CO; cops found bag next to D on bus containing 8.8 pounds of meth; D said it
was not his bag – claimed he had just found it on the seat next to him and when it appeared no one else was using
it, he put his jacket and some other personal items in it; D consented to a search of it; D appeals on grounds of
erroneous jury instructions, arguing that “knowingly” in the statute applies to both the presence AND quantity of
the drugs
2. Rule: Unlawful distribution of more than 1000 grams of a controlled substance – (3)(a) it is unlawful to knowingly
manufacture, dispense, sell, distribute or possess with intent to do any of these things a controlled substance; (3)
(a)(III) A person convicted under the statute with 1000 grams or more is sentenced to imprisonment for greater
than the max presumptive range, but not more than 2x the max presumptive range
3. H: Affirms conviction – jury instructions were correct bc knowingly did NOT apply to the quantity
4. R: The quantity section is separate from the section describing the elements of the crimes, so the “knowingly”
mens rea of the crime does not apply to the quantity; quantity turns on an “objective standard and requires no
inquiry into” D’s SOM; quantity is related to sentencing, not the elements of the crime; this is in keeping with
leg’s intent – ie, harsher sentences for greater quantities
State v. Wilkins, NC App. Ct. 2010 [Canvas]

1. F: D was convicted of possession of marijuana with intent to sell or deliver (“PWISD”); he was pulled over by
cop who thought that he was someone else (though there were arrests warrants out on D too); cop discovered a
small bag containing 3 smaller baggies, each with marijuana inside; in total, they contained 1.89 grams of
marijuana worth $30; D claimed he purchased it for personal use and testified that this small amount can be
bought in dime bags for $5/$10; he also had $1264.00 on him, separated into many small denominations; D
claimed he was from a check from his mother that he had just cashed; D appealed, arguing that the trial court
erred in denying his motion to dismiss the PWISD charge
2. Rule: PWISD – possession with intent to sell
3. H: There is insufficient evidence to show intent to sell, so conviction of PWISD vacated for judgment of simple
possession of marijuana
4. R: Intent to sell may be inferred from (1) the packaging, labeling, and storage of the substance, (2) D’s activities,
(3) the quantity found – but only if it is a “substantial amount”, and (4) the presence of cash or drug paraphernalia;
1.89 grams alone worth only $30 is insufficient to prove intent to sell; the state argues that it was divided into 3
small baggies, but it is equally likely that D bought those baggies so they are not evidence of intent to sell
Jones v. State, GA App. Ct. 2010 [Canvas]

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1. F: D was convicted of multiple counts of drug possession and distribution crimes; D is a hip hop artist and was
leaving a concert with his squad when some “nearby youths” fired at their limo; D’s group returned gunfire;
police stopped the limo and D and his friend fled; when cops apprehended him, they found 4-5 grams of meth, 4
baggies of weed (weighing total of 2.7 grams), $393 in cash of various denominations, and two guns; the concert
venue was within 1000 ft of a public housing project (hence the two counts of possession of a controlled
substance within 1000 ft of public housing); D appealed on sufficiency of the evidence
2. H: Sufficient evidence to show possession with intent to distribute
3. R: To support a conviction of possession with intent to distribute, the gov’t must show more than mere possession
(higher bar); BUT there is no hard rule so the amount and type of evidence varies; the police officer’s testimony
also valid evidence here (unlike WILKINS); here, D was carrying “large amount of cash” and “large amount of
drugs” and the weed was packaged as if for resale; D’s friend testified that D had not personally used marijuana
since his youth, which precluded the argument that it was for personal use; a cop testified that the amount and
value of the drugs was consistent with distribution; therefore, sufficient evidence to imply intent
DEFENSES
Case in chief defense: Basically saying that prosecution failed to prove one element of the crime beyond a reasonable doubt
Affirmative defense: D admits to the guilt of the charged offense but claims that he should be acquitted for other reasons
Common defenses:
 Mistake of fact and mistake of law
 Justification defenses: About the ACT, not the actor – made up of (1) Self-defense, (2) Defense of prop / others,
and (3) Necessity
 Excuse defenses: About the ACTOR, not the act – made up of (1) *Duress*, (2) Intoxication, (3) *Insanity*, and
(4) Infancy
NYPL § 25.00: Defenses; burden of proof

(1) When a “defense,” other than an “affirmative defense,” [ie, case in chief defense] defined by statute is raised at a trial, the
people have the burden of disproving such defense beyond a reasonable doubt
 So this is a much lower bar for D than an affirmative defense (D doesn’t actually have to prove anything??) – to
overcome, prosecution must prove D’s LACK of defense beyond a reasonable doubt
(2) When a defense declared by statute to be an “affirmative defense” is raised at a trial, the defendant has the burden of
establishing such defense by a preponderance of the evidence
 Affirmative defenses in NY include duress and insanity
 Infancy and self-defense are NOT affirmative defenses in NY
MISTAKES OF FACT AND LAW

MISTAKE OF FACT
Mistake of fact: a mistaken belief regarding some material event, belief, or circumstance that MAY negate a specific
element of a criminal offense
 ex: “I was speeding bc my speedometer is broken so I thought I was going 60, not 70”
RULE: Mistakes of fact may negate a requisite element of a crime, so they are permitted defenses under certain limited
circumstances – but we have different approaches for common law and MPC
 Common law approach (+ NAVARRO CA)

 Is it specific of general intent crime (ATKINS CA, via Hood CA)?
o Specific intent crimes: the crime requires a specific intent to cause the ultimate social harm (eg,
murder), so the definition refers to D’s intent to achieve some further consequence and not only the
act – thus, should have TWO mens reas
 ex: “It is prohibited to knowingly possess a controlled substance with intent to distribute” –
TWO mens reas
 ex: Larceny (intent to deprive of prop), forgery (intent to defraud), attempt (intent to
complete the crime), first degree premeditated murder (premeditated intent to kill)
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oGeneral intent crimes: the crime simply requires an intent to do the thing that MAY ultimately cause
the social harm, so the definition consists only of a description of a particular act with one general
mens rea
 ex: “It is prohibited to knowingly possess a controlled substance” – ONE mens rea
 General intent crimes ≠ SL crimes
 If specific intent crime – a mistake of fact is a defense if it is a good faith / honest mistake
o NO requirement of reasonableness of the mistake
o This is case in chief defense – ie, saying that prosecution cannot prove each element of the crime
beyond a reasonable doubt bc one of the mens reas is missing
 If general intent crime – a mistake of fact is a defense to a crime if (1) it is a good faith mistake, AND (2) it
was reasonable for D to have believed the mistaken fact
 MPC approach
o RULE in NY
o MPC does NOT distinguish between specific and general intent crimes
See NY § 15.20(1): Effect of ignorance or mistake upon liability

A person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief of fact, unless
(a) the factual mistake negates the culpable mental state required, OR (b) the statute expressly provides that such a factual mistake is a
defense to the crime
 What does the statute say about the crime?

o What are the elements?
o What do they mean? – check definitions
 Check code for guidance on how to construe specific provision of statute
o See eg, NY § 15.15(1): “… When one and only one of such terms appears in a statute defining an
offense, it is presumed to apply to every element of the offense unless an intent to limit its
application clearly appears.”
 What does the JD’s code say about mistakes? – often, will be that it must negate an element of the crime
 Applying D’s mistake, does it fulfill the elements of the statute re mistakes and defenses?
MISTAKE OF LAW
Mistake of law: a misunderstanding or mistake belief that occurs when a person, with complete knowledge of the facts,
reaches an incorrect conclusion as to the legal effect or result
 ex: “I had no idea the speed limit was 60mph; I thought it was 70”
RULE: At common law AND under MPC, ignorance of the law is NOT a defense, but there are exceptions!
 Exceptions to the above rule:

(1) Reasonable reliance on an official interpretation of law (– MARRERRO NY)
See NY § 15.15(2): Effect of ignorance or mistake upon liability

A person is not relieved of criminal liability under a mistake belief of law unless such mistaken belief is founded upon an official
statement of the law contained in (a) a statute, (b) an administrative order or grant of permission, (c) a judicial decision, OR (d) an
interpretation of the statute or law relating to the offense, officially made by a public servant, agency, or body legally charged with
the responsibility of administering, enforcing, or interpreting such statute.
 The misinterpretation must be made by a public official who has the authority to speak on the law
and is speaking in his capacity of a public official
 CANNOT be D’s individual misinterpretation (MARRERO NY)
 Can be used to exonerate Ds bc realistically the “discovery” that the interpretation was erroneous
does not happen until after convicted
 But note, very rare that the official interpretation is later discovered to be erroneous
 Most likely situation: lower ct decision on Case A says X, then someone personally reads
and relies on it (must have actual knowledge of this), then arrested for Case B and during
this trial, appellate ct on Case A says the proper law is actually Y
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
Criticism: there are many laws that ppl either don’t understand or don’t even know about that we
violate all of the time and mistake of law defenses are very narrow (see eg, MPC, NY § 15.20)
 Solution: some small / random laws explicitly say that in order to violate it, D must have
known of the existence of the law + Pros must prove this – see (2) below
(2) Where knowledge of law is element of the crime, and ignorance negates that mens rea element
(3) Under limited circumstances, the prosecution of a person who lacks fair notice of a legal duty imposed by law
on them can violate due process
--------------------
People v. Atkins, CA 2001, p.228

1. F: A hated neighbor and told ppl he would burn his house down; A started fire on (near?) victim’s prop that grew
out of control – burned for 3 days and spread almost 3 miles; A claimed he had been drinking all day (beer cans
found near source of fire); A claimed he started fire bc he saw that the site where he was drinking was “in poor
condition” and he decided to burn some weeds; at trial, A was not allowed to argue his voluntary intoxication was
affirmative defense to arson
2. Rules: CALJIC No. 14.80: Arson – “Any person who willfully and maliciously sets fire to or burns or causes to be
burned any forest lands” and “willfully means intentionally”; CA Penal Code Section 22(b): “Evidence of
voluntary intox is admissible solely on the issue of whether or not the defendant actually formed a required
specific intent”
a. Test to determine if specific vs. general intent crime: People v. Hood – When the definition of a crime
consists only of the description of a particular act, this is a general intent crime so ask whether D
intended to do the proscribed act; when the definition refers to D’s intent to do achieve some further
consequence, this is a specific intent crime so D’s intent with that ultimate consequence must be proved
3. H: A defendant cannot introduce evidence of voluntary intox as an affirmative defense to a general intent crime
and arson is a general intent crime – so affirms trial ct’s instructions and upholds conviction
4. R: The statute’s actus rea is (1) set fire to, (2) burn, or (3) cause to be burned some structure, land, or prop; it does
not contain any additional language such as “with the intent” or “for the purpose of” which is often included in
specific intent crimes; thus, the statute does not require the specific intent to burn any given thing, but merely to
do the act (ie, set the fire) that may cause that subsequent harm; therefore it is general intent and voluntary intox is
not a valid defense
People v. Navarro, CA App Dep’t 1979, p.250  common law approach to mistakes of fact
1. F: N charged and convicted of grand theft for stealing four wooden beams from a construction site; N claim it was
a mistake; there was enough evidence at trial for a jury to believe either that N believed they were abandoned and
the true owner would have no objection to him take them; trial ct refused two jury instructions by N that explained
that belief of abandonment = mistake = acquittal; instead gave jury instructions that said that if N took them in the
reasonable and good faith belief that they were abandoned OR if he had reasonable and good faith belief that he
had owner’s permission to take them, he should be acquitted
2. Rule: If general intent crime, a mistake of fact is not an excuse unless it is based on (objectively) reasonable
grounds; but for the specific intent crime of larceny (can’t commit negligently), the mistake does not have to be
reasonable as long as the belief is genuine
3. H: Jury instructions were wrong in saying that mistake had to be reasonable – evidence showed that it was in good
faith so N should have been acquitted
4. R: If he honestly believed the beams were abandoned or that he had owner’s permission to take them, he cannot
have had the specific intent necessary for theft; doesn’t matter if this belief was reasonable or not (tho if jury
found the belief unreasonable, it might infer that it was not in good faith); bc no mens rea, he must be acquitted
People v. Marrero, NY 1987, p.258

1. F: M was a corrections officer at federal prison in CT who had his gun on him in NYC club; claimed he thought
he could have it bc of his own interpretation of gun laws; convicted of criminal possession of a weapon in the
third degree and argues that he should have been allowed to bring affirmative defense of mistake of law in
personally misinterpreting the “ambiguous” law defining peace officer
2. Rules:
a. NY §265.02 – Guilty of criminal possession of weapon when the person “possesses any loaded firearm”
but exception for “peace officers”
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i. NY Crim Pro Law §1.20(33) – “peace officers” defined as including an “attendant, or an
official, or guard of any state prison or any penal correctional institution”
b. NY §15.20(2) – Mistake of law not a valid defense unless founded upon an official statement contained in
(a) a statute, or (d) “an interpretation of the statute or law relating to the offense, officially made or issued
by a public servant, agency or body legally charged or empowered with the responsibility or privilege of
administering, enforcing or interpreting such statute or law.”
3. H: Mistake of law cannot be based on personal misinterpretation of the law so NOT a valid defense here
4. R: Both common law and NY statute meant to prevent people from claiming mistakes of law and to allow
otherwise here would be to subvert this purpose and open floodgates for ppl – either innocently or in bad faith – to
say that their own personal misinterpretations preclude them from criminal liability; leg’s intent in § 15.20(a) was
mean to uphold this goal but the leg REALLY was trying to adopt the MPC, which explicitly contains language
about how it must be determined after the conviction to be an invalid / erroneous official statement; so we read
this requirement into 15.20(a); ct dismisses M’s arg re 15.20(d) bc he relied on the statements of the gun dealer
and a professor(???) and neither of these are public officials
5. Dissent: Maj is stupid bc it can’t be a mistake of law defense if you are actually required to get the ct right (so
problems with maj’s logic)
a. Also has issues with stat interp – the plain reading of the lang of (a) supports M’s arg – just how a person
reads the statute
b. Dislikes Maj’s arg about adopting the MPC’s lang – where are they getting this idea from? NY clearly
looked at MPC and didn’t include those words
i. This is canon of construction – when leg looks at model and then deviates from it, they intend to
make them different
JUSTIFICATION DEFENSES
JUSTIFICATION DEFENSE: If an illegal act is justified, then D is not criminally liable for it – basically, says that there
is no social harm bc there is some explanation for it
 About the ACT, not the actor (vs. excuse defenses)
 So in addition to the four standard requirements of a crime, there is a fifth requirement that the crime was NOT
justified in some way
 Two main kinds: Necessity and self-defense
NECESSITY
Necessity, generally:
 Necessity is an affirmative defense where, from an OBJECTIVE perspective, the harm caused by following the
law (ie, avoiding the criminal action) outweighs the harm by breaking the law
 Necessity is about the ACT, not the actor
o So should be the case that any person who did the thing would be found to have a defense
 Necessity has more to do with EXTERNAL FORCES acting on D
o vs. duress – where D’s actions were motivated by human forces
 Examples –
o + ex: Commonwealth v. Thurber (distinguished in Hutchins) – D was convicted of escaping prison, but he
only did so bc his life was in immediate danger there and he submitted himself to authorities “promptly”
so there was no social harm
o – ex: HUTCHINS MA – D possessed / smoke marijuana, but only bc he had an extreme medical
condition and the weed was the only thing to alleviate his symptoms
 So this is NOT about the act, but the actor – ie, there was no external pressure and the
“necessity” was purely unique to him
o – ex: CONTENTO-PACHON – D smuggled drugs into US, but did so bc was forced to by a cartel in
Colombia (this is duress, not necessity)
 CONTENTO-PACHON suggests that necessity arises where D acted in the interest of the
general welfare of the public
 Common law does NOT allow necessity as a defense to homicide / killing
o See also DUDLEY AND STEPHENS – you cannot take an innocent life to save your own (vs. self-
defense where killing is permitted bc someone attacked YOU first)
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o vs. MPC which does
Requirements of necessity (- HUTCHINS MA):
 Threshold inquiry: Balancing test of the competing harms

o What are the competing harms?
 The specific harm to D of complying with the law (ie, avoiding the criminal action) vs. the harm to
society of the law that was broken (ie, the public interest in the law)
 NOTE: The harm of the crime must be something that is inherently harmful
 That is, it is not bad by virtue of the fact that it IS a crime – it is bad by virtue of what the
crime is
 If we measured the harm of the crime just based on the fact that it is a crime, this would
undermine the whole necessity defense and we would never get passed this step
 Hutchins: Harm of extreme medical pain vs. harm to society of allowing him to smoke marijuana
o Does the harm that makes up D’s defense outweigh the harm that reasonably could result from the court’s
acceptance of this necessity?
 ie, if we accept the excuse, is there any major concern going fwd? Will this decision have negative
repercussions?
 Hutchins: The harm of smoking marijuana outweighs the harm of his pain – so the necessity fails
here and the defense is denied
 If complying with the law is the greater harm, then apply four-factor test
(1) Is D facing a “clear and imminent danger”? – NOT “debatable and speculative”
(2) Is there a reasonable expectation that action will abate or deflect the harm / danger?
(3) Are there any legal alternatives?
(4) Has the leg disallowed the necessity defense by “clear and deliberate choice regarding the values at issue”?
SELF-DEFENSE
Self-defense, generally:
 In most JDs, self-defense is an affirmative defense
o Exception: NY – Self-defense is a case in chief defense, therefore the BOP is on the prosecution to
DISPROVE D’s lack of self-defense (NYPL §§ 25.00, 35.00)
 Areas of concern –
o How do we determine whether D’s use of force was reasonable?
 At a certain point, entire subjectivity effectively nullifies the reasonableness requirement!
 See also involuntary manslaughter
o Where is the line between use of force and vigilantism?
o How does this apply to the police?
Requirements of self-defense:
 Imminent force is threatened

o It is NOT necessary that D was right, just that he had a reasonable, honest belief
o Strict imminence standard (see CA jury instructions):
 The threat must be immediate and had to exist at the very time D used self-defense
 A belief in future harm is not enough
o But note that CA has relaxed the definition imminence, in part to allow abused women to claim self-defense
where they have killed their abusers
 It was necessary for D to use force
o D cannot claim it was necessary based on something that D did not know about (eg, GOETZ and
screwdrivers)
o It is NOT necessary that D was right, just that he had a reasonable, honest belief (CA jury instructions)
o JDs use different standards for measuring D’s reasonable belief –
 Partially subjective standard (GOETZ NY): The standard is whether a reasonable person would
have believed that (deadly) force was necessary, in light of SOME of the circumstances
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 Factors: Prior experiences of D, physical attributes of the parties, what D knows about his
“assailants” – but note, this is not an exhaustive list of what could be used
 Goetz: 2-4 assailants (evidence is unclear), “give me $5” was interpreted as them trying to
rob him, context of the subway (very dangerous in the 1980s and may/may not have been
able to retreat)
 CA is somewhere in between  Allows jury to consider MOST of the circumstances (see CA jury
instructions)
 Exception: Limits evidence of D’s mental impairment (mental illness, insanity, etc.) so even
a mentally ill person is held to the standard of a normal person
o But note that in these cases, D may still have an insanity defense
 Fully subjective standard (WANROW WA): The standard is whether a reasonable person would
have believed that (deadly) force was necessary, in light of ALL of the circumstances
 Factors: Physical attributes of the party, D’s knowledge of the assailant, D’s gender and any
systematic sex discrimination they face (eg, women may not be trained in SD so might
make more sense for them to use deadly force)
 There is NO temporal limit to what can inform D’s use of self-defense
 Wanrow: D had heard about the victim’s pedophilia, D’s child had told her victim assaulted
him, D was small woman with broken leg, victim was large man, D did not know how he
got into the house, etc.
o Note that bc most JDs use some partially subjective standard, racism / systematic stereotyping can become a
big issue
 The force that D used was proportionate to the threat
o This is a matter of fact so it is up to the jury to determine whether it was proportionate
o GOETZ: He had been mugged 2x before so knew that the assailants might have deadly weapons on them, the
boys were teenagers (but we don’t actually have much detail about their physical attributes)
 Unclear how race was a factor here – neither P nor D brought it up at trial, but probably implicit
 D was NOT the initial aggressor (eg, JENKINS FL)
o Most JDs define initial aggressor as having acted either unlawfully or in a manner that is reasonably
calculated to or most likely would provoke a violent response
 ~ There is SOMETIMES an additional duty to retreat before using force – esp if it is deadly force (eg, NYPL § 35.15)
o The duty to retreat arises when the initial aggressor has used force (JENKINS FL)
NYPL § 35.15: Justifications; use of physical force in defense of a person

(1) Physical force: Justified when D has reasonable belief that the force from the other party was imminent AND D’s use of physical
force was to the extent necessary to defend himself or 3P
Exceptions: (a) D provoked the other party, (b) D was the initial aggressor and never withdrew, OR (c) combat by agreement
(2) Deadly physical force: Must meet all of the requirements of (1) AND –
(a) D had a reasonable belief that the other party was going to use deadly physical force AND D could not safely retreat
(unless D was at home and not initial aggressor OR was a police officer), OR
 so evidence that D could have retreated and didn’t can be used to show that there was no necessity to use force
(b) D had a reasonable belief that it’s a robbery (GOETZ)
Castle doctrine: D has NO duty to retreat before using deadly force to protect himself (and in some JDs his prop) from
attack by an intruder (NYPL § 35.15, JENKINS FL)
 Common law rule that has been codified in some JDs
 So is exception to the duty to retreat that is built in to most self-defense statutes – ie, there is NO duty to retreat
when you are in your own home
 Requirements:
 D is in their own home
 D or a family member faces assault or apparent imminent danger of great personal injury
 D has an actual belief, and circumstances are such that a “reasonably cautious and prudent person” would
believe, that the threat / great personal injury are imminent
 So seems to be more objective that the requirements for reasonable belief in use of self-defense
Stand your ground laws: Where D is anywhere that he has a lawful right to be, D has NO duty to retreat if other self-
defense elements are met (eg, Zimmerman/Martin case)
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 Extension of the castle doctrine to outside the home
 As of 2018, at least 25 states have some version of stand your ground laws (eg, FL
DEFENSE OF PROP
Defense of prop, generally:

 When it comes to real prop, you can use force to prevent / terminate some kind of trespass or other interference on
your land
 For personal prop, you might be able to use force to prevent / terminate unlawful interreference with your
personal prop
o Sometimes this just falls under SD statute – eg, if burglar is in your home and has gun, he is interfering
with your personal prop but is also threatening your life
TX § 9.41: Use of force in defense of prop

D is permitted to defend prop where (1) D is in lawful possession of the land or prop, (2) D reasonably believes that force is
immediately necessary to prevent or end the trespass / interference with the prop, and (3) D reasonably believed the particular
degree of force used was necessary (ie, was proportionate)
 So general use of force permitted for mere trespass OR unlawful interference
TX § 9.42: Use of deadly force in defense of prop

Must meet all of the requirements of §9.41 AND –
(2) D reasonably believes deadly force is immediately necessary to (a) prevent burglary, OR (b) to prevent flight after burglary,
AND
(3) D reasonably believes that (a) there are no other means to protect / recover the prop, OR (b) non-deadly force would
expose D or 3P to other substantial risk of dead or serious bodily injury
 §9.42 does not explicitly require the other party to be interfering with D’s land, but if read in conjunction with
§9.41 then it does have to be on D’s land
 Use of deadly force only covers unlawful interference (ie, NO DEADLY FORCE FOR TRESPASS)
 Arson and criminal mischief maybe dropped from (2)(B) bc it is unlikely that ppl committing these crimes would
have deadly force like a gun on them??
TX § 9.43: Use of force in defense of 3P prop

Must meet all of the requirements of §§ 9.41 and 9.42, AND –
(1) D reasonably believes that the unlawful interference constitutes a theft or criminal mischief OR an attempt thereof, AND
(2) D reasonably believes that (a) the 3P has requested his protection of the 3P’s prop, (b) D has a legal right to protect it, OR
(c) the 3P is D’s family member, lives with D, or is under D’s care
 Applies to both general force and deadly force
 If read in conjunction with §9.42, then deadly force only permitted when the theft / mischief occurs during the
nighttime
USE OF FORCE BY POLICE OFFICERS
Use of force by police officers, generally:

 Case law authority –
o “Deadly force is not const’l reasonable unless the officer has probably cause to believe that the suspect
poses a serious threat of death / serious physical injury to the officer” (SCOTUS, TN v. Garner, 1985;
officer shot 15yo boy in back of the head while he was climbing fence to flee)
o BUT the reasonableness must be judged from the perspective of a reasonable officer on the scene
(SCOTUS, Graham v. Connor, 1989)
 Statutory authority – see eg, NYPL § 35.30
 Regulatory authority – see eg, NYPD Patrol Guide
To determine if use of force permitted under NYPL § 35.30 –

 Is it a police officer? If yes, continue
 Are they affecting an arrest? If yes, continue
 Is the person one that the police officer reasonably believes is committing an offense? If yes, continue
o For inquiry might have to see if the thing is indeed an offense
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 “Any offense” is very broad and permits the use of force for pretty much everything
 eg, Eric Garner – selling loose cigarettes is not a felony but it is an offense
o Seems to be subjective test BUT 35.15(1) has same language and NY Ct App says that “reasonableness”
was objective standard in GOETZ
 Although GOETZ is different context, the two rules are from the same statutory scheme so very
possible the leg intended the same meaning when they wrote it
 Is the use of force proportional?
o “To the extent … necessary” to either effect the arrest, prevent the suspect’s escape, self-defense, OR
defense of 3P
 What was it necessary for?
o Permitted reasons: (1) Effect the arrest, (2) Prevent the suspect’s escape, (3) Self-defense, OR (4)
Defense of 3P
o Any other reason is not permitted – therefore no force is allowed
 ONLY ONCE YOU FILL THE ABOVE CAN YOU LOOK AT DEADLY FORCE
o What kind of force did the officer use? Is it even deadly force?
 eg, Eric Garner – chokehold may or may not be deadly force bc he did die, but it’s not deadly
force in the way that a gun is
o Then, if we determine that the force was deadly force, was it permitted under the statute?
 Can only use when officer reasonably believes that –
 (a) the person was committing a dangerous crime (either felony or enumerated)
 (b) the person was attempting to escape and was armed with deadly weapon / gun
 (c) necessary for officer’s self-defense or defense of 3P from what the officer
reasonably believes to be the use / imminent use of deadly force
 Then this is where the control guide may come in – especially for (c)
 Was the force used in a way set out by the police dept?
 But note, the manual / guide is not law so can be departed from by officers
 eg, Eric Garner – chokeholds not permitted per NYPD guidelines therefore not
permissible use of force, BUT chokeholds are not illegal
JUSTIFICATION DEFENSES – CASES
Commonwealth v. Hutchins, MA 1991, p.656  NECESSITY

1. F: H was charged with criminal possession of weed; H had scleroderma, a chronic disease that results in the
buildup of scar tissue; this was very painful condition, resulting in fatigue, nausea, joint pain, etc.; there was no
treatment or cure for it; before trial, he argued a defense of necessity and submitted all sorts of medical / scientific
proof to support his claim that he needed marijuana for medical purposes; two of his doctors agreed that use of
weed alleviated his symptoms; the trial ct denied his defense bc it found that medical necessity was not an
appropriate form of necessity; H appealed following his conviction, requesting new trial
2. H: Using marijuana for medical purposes is not an affirmative defense to possession of it – judgment affirmed
3. R: A defense of necessity is only available if the harm sought to be avoided exceeds the harm resulting from
violation of the law; if it does, then there are four conditions that must be met – (1) D faced imminent danger, (2)
D reasonably expected that the action would deflect the harm, (3) there was no legal, effective alternative, and (4)
the leg has not expressly abrogated the defense; here, Hutchins has no defense bc he does not even pass the initial
threshold inquiry – the harm of possession marijuana, even given his medical condition, does not outweigh the
harm of violating the law; saying otherwise would undermine the enforcement of drug laws, contradict the leg’s
policy goals, and disregard the gov’ts significant interest in drug regulation; ct distinguishes two cases to show
what actual necessity should look like; in Thurber, D was convicted of escaping prison, but he only did so bc his
life was in immediate danger there and he submitted himself to authorities “promptly” so there was no social
harm; in Iglesia, D was charged with unlawfully carrying a gun, but he only had it bc he took it from a man who
was trying to attack him
4. Dissent: There is no slippery slope concern here – the public’s interest in the enforcement of drug laws would not
be significantly harmed by allowing H to make his defense bc we still have the four-factor test (this will keep out
any floodgate concerns) AND the jury doesn’t even have to believe him
People v. Goetz, NY 1986, p.589  SELF-DEFENSE WITH MEDIUM STANDARD
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1. F: Geotz, white man, shot four Black teenagers on NYC subway; 1-2 of them had approached him and asked for
$; he alleged they were trying to rob him, and pleaded self-defense at his trial; indicted by Grand Jury of murder;
App Div reversed saying that jury instructions were wrong; jury was instructed that “reasonably believes” means
whether D’s conduct was that of a reasonable man in D’s situation; App Div said that lang of statute meant that
inquiry is whether the belief was reasonable to the D
a. See NY homicide code – G was charged with Murder 2 bc pretty obvious intent (ie, hit them squarely in
bodies with planned “pattern of fire”, went back to shoot one of them again, said he wanted to kill them)
b. NOTE: This is very unique case bc this is one that the PROSECUTION APPEALED
2. Rule: NYPL § 35.15(1) – Self-defense permitted when D reasonable believes physical force to be necessary to
defend himself (or 3P) from what he reasonably believes to be danger by such person; NYPL § 35.15(2) – Self-
defense with deadly weapon only permitted (a) D reasonably believes the other person is using deadly force, OR
(b) D reasonably believes the other person is attempting to commit … robbery
a. Standard of proof: § 25.00(2) – preponderance of the evidence
3. H: “Reasonably believes” means, in light of SOME of the circumstances, whether a reasonable person in the place
of D could have had the same beliefs – so initial Grand Jury instructions were correct
4. R: This interpretation (rather than App Div’s) is in line with the ordinary meaning of the statute AND leg’s intent
in adopting it; App Div’s interpretation would yield absurd results so must be rejected (canon); App Div’s
interpretation basically means that D can set his own standard for permitted use of force – if D thought it was
okay, then he would have to be exonerated; but if leg wanted to get rid of reasonableness requirement like this
(more like MPC), then it would not have included language of reasonableness in statute; BUT this should not be
interpreted to mean that this is completely objective test – jury must take into account physical attributes of
parties, prior experiences by D, etc.
State v. Wanrow, WA 1977, p.625  SELF DEFENSE WITH SUBJECTIVE STANDARD

1. F: W’s children staying at her friend Hooper’s house; unconfirmed history of William Wesler (decedent) abusing
children in neighborhood – W’s son said WW tried to pull him off his bike that afternoon, H discovered her
daughter had STD and she claimed WW molested her, H’s landlord said that WW tried to molest a young boy
who lived in house before H, H saw someone sneaking around house at night and found window slashed two
nights before incident and suspected WW; H called police, who showed up and said there was nothing they could
do about it til Monday (unclear what day it was) and even told her to hit him with baseball bat if he entered house;
H asked W and another couple to sleep over with their children to protect them, so 4 adults and 8 kids in house; at
5am, the husband went to WW’s house to confront him and they all came back to H’s house but only WW entered
[but note WW did NOT break in]; lots of confusion, W went to call the husband for help and turned around and
found WW in front of her; she was startled and shot him out of reflex; WW was big man; W was 5’4” and had
broken leg with cast and crutches; W convicted of Murder 2
2. Rule: In WA, justification of SD must be evaluated by jury subjectively from viewpoint of D in light of ALL of
the facts and circumstances
3. H: Overturns W’s conviction bc (1) video testimony against W should not have been admitted at trial, and **(2)**
the jury was erroneously instructed on SD
4. R: The jury instructions make it seem like there is a temporal limit to what can inform D’s use of SD, BUT in
reality, it is possible that D’s actions were motivated by prior knowledge (ie, fair that W acted in light of what she
had heard about WW’s pedophilia); further, the instructions incorrectly make it seem like D’s SD should be
evaluated by an objective standard when actually we use a SUBJECTIVE standard; “it then compounds this error
by utilizing lang suggesting that [W]’s conduct must be measured against that of a reasonable male individual
finding himself in the same circumstances” (jury instructions only use male pronoun “he”); thus, jury should take
into account her gender and comparative size; BUT we have a social problem where women are not taught how to
use SD against male attackers without force, so W could not have known what else to do; therefore, there is a due
process problem with the jury instructions based on sex discrimination bc we are holding W to a standard of a
male counterpart that she cannot be expected to meet bc of systematic problems faced by women
Jenkins v. State, FL (App Ct) 2006, p.603  CASTLE DOCTRINE AND DUTY TO RETREAT
1. F: J is roofer and he and his family occupied two trailers; J in trailer with daughter (she told him of some recent
altercation); Byran Cerezo banged on door of other trailer (had something to do with previous altercation re
daughter); J told him no one was there and to leave; J went outside to get rid of him when C wouldn’t leave;
verbal confrontation; C then punched J; J took knife from workbelt (knife use for work purposes); C threatened
that he had a gun; C then ran up to strike J again; J’s knife “entered” C as if he only held it up in self-defense; J
convicted of manslaughter for killing C; J appeals on grounds that the conviction was against the weight of the
evidence
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2. Rule: Jury instructed on both kinds of SD; (1) General SD – A “person is justified in the use of deadly force only
if [he] believes that such force is necessary to prevent imminent death…” BUT there is a duty to retreat so, if the
person can do so safely, then must before resorting to force; (2) Castle Doctrine – When one is violently assaulted
in own home or immediate premises, there is no duty to retreat
3. H: J established prima facie case of SD, which State did not overcome, so conviction overturned – therefore jury
finding was against the weight of the evidence
4. R: Regardless of what kind of SD we are talking about, both permit J’s actions – he is on his own “land” and he
never had opportunity to retreat as required by general SD; there is no duty not to engage so we cannot legally
fault him for leaving the trailer (he had right to protect his fam); the duty to retreat for general SD does not arise
until the aggressor has used force – so here, there was no duty on J until C struck him the first time; BUT he
actually had no duty to retreat but evidence shows that there was not enough time for J to do so between the first
punch and when C attacked him again (and he killed C) AND bc there was nowhere for him to retreat (he was
already at his home); further, J otherwise acted reasonably – had no history with C, told him to leave first, verbal
warning of language and visual warning of knife, etc.; where D establishes prima facie claim of SD BOP shifts
back to State to disprove the claim beyond a reasonable doubt; here, State failed to do this so J should have been
acquitted
EXCUSE DEFENSES
EXCUSE DEFENSE: There is something “wrong” with D that precludes them from criminal liability for their actions
 About the ACTOR, not the act (vs. justification defenses)
 Made up of (1) *Duress*, (2) Intoxication, (3) *Insanity*, and (4) Infancy
DURESS
Duress, generally:
 At common law, duress is NOT available as a defense to intentional homicide
 Differences between duress and necessity –
o Duress: committing the crime in response to a threat from a specific individual – so arises where D’s
actions were triggered by some other HUMAN action
o Necessity: committing the crime in response to a dire situation – so arises when D’s actions are triggered
by some separate, external force
Requirements of duress (common law, + CONTENTO-PACHON):
 Imminent threat to D of death / serious bodily injury

o In most JDs, the threat does not need to be limited to D himself – can be to his family OR any 3P
 Historically, had to be D’s family member if not him
o Contento-Pachon: Threat to kill D’s wife and child
 D reasonably believed that the threat would be carried out unless the crime was comitted
o CONTENTO-PACHON suggests that the reasonableness is measure in light of the context – so kind of
subjective
o Contento-Pachon: The drug cartel had the financial means to monitor family and execute them AND there
was a lot of $$ at stake for the cartel in D performing the act so they had legit incentive to carry our threat if
he failed
 D had no reasonable opportunity to escape the threatened harm

o CONTENTO-PACHON suggests the reasonableness needs to be measured in light of the context
o Contento-Pachon: There was no reasonable way to flee bc D would have had to get his wife and kid and
escape the city (if not the country) without triggering the cartel and/or corrupt police’s attention
 ~ In prison-escape cases, D must submit to the proper authorities after attaining a position of safety
o Quasi- fourth element
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o CONTENTO-PACHON limits this to cases where a prisoner has escaped from jail – bc in all other cases,
there is little difference between this and the 3rd element
 If D has the opportunity to turn himself in, then he is also in a position to flee from the threat
MPC definition of duress: Conduct coerced by use of, or threat to use, unlawful force against D or another, that a person of
reasonable firmness in his situation would have been unable to resist
 Differences between common law and MPC –
o MPC has no requirement of imminence
o MPC doesn’t require an explicit threat of death / serious bodily injury, just unlawful force
o Duress CAN be a defense to intentional homicide under MPC
INSANITY
Insanity, generally:
 4 JDs do not have an insanity defense at all! – eg, Idaho
 Very rare in both application and success, which means that there are many ppl with mental illnesses that fall
through the system and end up in prison –
o 16.9% of ppl in prison have mental illness (vs. 5% of the national population)
 So the mentally ill are overrepresented in prisons
o Less than 1% of criminal cases involve the insanity defense
o Of these, only 1/4 cases are successful in invoking the defense
 But 90% of the Ds in these cases have a medically diagnosed mental illness
 Even where they are successful, there is still a “punishment” in that they are usually committed
to a psychiatric institution (AZ
o About half of these cases involve violent crimes, with 15% of them being for murder
 Insanity ≠ incompetence
o Incompetence: the person is not fit to stand trial – so focuses on the time of the TRIAL
 ie, they don’t know what’s going on right now so we’ll wait until they recover and then we can
fairly give them a trial
o vs. insanity: the person is not criminally liable bc of their mental state at the time of the CRIME
o Therefore, you may be able to invoke both
 The insanity defense is relevant bc punishing a mentally ill person would not serve any punishment goals
(discussed in FREEMAN)
o No deterrence
 No specific deterrence – D will never be able to learn or control his conduct
 No general deterrence – the public won’t learn anything from their punishment, bc of the fact
that D is mentally ill therefore not like them
o (Probably) no retribution – while we punish someone for their moral wrongdoings, but the idea here is
that this person was not aware of this moral wrongdoing
 Counterpoint: the social harm still exists! – eg, if the social harm of murder is that someone is
dead, the fact that D is insane does not change the fact that the victim is dead
o (Probably) no rehabilitation – there’s no way to teach these ppl not to do this and generally, institution >
prison in terms of helping them
 Insanity defense at trial –
o D must give the prosecution notice that he is planning to invoke an insanity defense (NYPL § 250.10)
o Jury instructions will read:
 First, whether they’ve found that the prosecution has established every element of the crime
beyond a reasonable bound
 (( bc P still has BOP for each and every element beyond a reasonable doubt ))
 If yes, they will continue to next inquiry
 If not, then D is acquitted
 Second, whether D has shown his insanity defense
 (( see eg, NYPL § 25.00 – bc insanity is an affirmative defense, D has BOP ))
 Usual standard = preponderance of the evidence (eg, NYPL § 25.00)
o So this is lower than beyond a reasonable doubt
 If yes, then not guilty
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 If no, then convicted of the charged crime
o REMEMBER THAT EVEN IF MENTAL HEALTH ISSUES DO NOT RISE TO THE LEVEL OF
INSANITY, THEY COULD UNDERMINE THE MENS REA ELEMENT
M’Naghten Test: To avoid crim liability, a person must suffer from mental disease or defect that makes him incapable of
knowing the nature and quality of his actions or that those actions were wrongful
 Used in a little less than half of JDs – eg, AZ § 13-502 (???)
 Requirements:
 D had a disease of the mind
o Applying Freeman facts: D had to show some disease related to alcohol / drug addiction and
any related problems from his concussions
o Woman who killed her children video: YES – she had postpartum depression with psychosis
 NOTE: The fact that she could have prevented this by just not having another kid may
weigh against her at trial
 This disease caused a defect of the mind
o Freeman: See above bc pretty much the same thing
o Woman who killed her children video: YES – the postpartum psychosis caused her to hear
voices, experience manic depression, etc.
 Such that at the time of his actions, D did NOT know either of –
(1) The nature and quality of his actions, OR
 eg, D has a dissociative break and didn’t know that they were stabbing someone
 Freeman: D argued that he didn’t know what was going on at the time of the crime
 Counterpoint: He was cogent enough to understand that he had been
shortchanged at the drug sale
 Woman who killed her children video: NO – she knew that what she was doing was
killing her kids (planned it out, waited until her husband left the house, killed them in a
very methodical way)
(2) That what he was doing was wrong

 eg, D was psychotic and knew that he was stabbing someone, but thought he had to do
so to exorcize the devil
 Woman who killed her children video: MAYBE – she thought the devil was out to get
her children and that she was saving them from a horrible fate; BUT she still knew it
was wrong (called 911, tone/temper on the phone with her husband)
 Criticisms: This is too binary and therefore too high of a standard
o Too binary – focuses too much on whether the person understood the difference between good and bad
o Too high of a standard – ppl that do not meet this bar even though they have legit psychological issues go
to prison and then may be re-released, even though they still present a threat to society
 Arguably, they present even more of a threat if they suffered further psychological damage in
prison (which is not unlikely)
o Often this becomes a battle of experts, so the jury just ends up deciding which one they believe more –
rather than deciding if the person actually qualifies
Durham Test: D is not criminally liable if his unlawful conduct was the product of a mental disease or defect
 The most rare
 Requirements:
 D had a mental disease or defect
 D’s commission of the crime was the product of the disease / defect (EL: so where the mental issues were
part of the reason for D committing the crime)
 Very similar to the M’Naghten test but is arguably better than it
o Better accounts for issues of causation
o Less likely to become a battle of the experts
MPC Test: D is not criminally liable if at the time of the criminal act, due to some mental disease or defect, he lacked the
substantial capacity to appreciate the wrongfulness of his conduct or conform that conduct to the law
 Used in a little less than half of JDs
 Requirements:
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 D had a mental disease or defect
 At the time of his actions, due to a mental disease / defect, D lacked the substantial CAPACITY to –
(1) Appreciate the wrongfulness of his conduct, OR
 FREEMAN: Given D’s historic and substantial use of drugs (and his concussions), he
did not appreciate the wrongfulness of the conduct – ie, he had no idea that selling
drugs was wrong
 Note that ct seems skeptical of his claim but it is not their place to make
factual determinations
 EL: This seems to be more of a balancing test than M’Naghten – ie, woman killed her
children bc scared for them of devil outweighs the fact that she knew it was wrong to
kill them
(2) Conform his conduct to the requirements of the law
 Freeman: Probably no argument for conforming standards bc he was still selling the
drugs
 Better than M’Naghten and Durham tests bc allows juries / judges to hear ALL of the facts – so allows for better
gradation (rather than the black-and-white nature of the other tests)
 At the time of FREEMAN (1966), this was federal rule; HOWEVER, federal cts shifted back to the M’Naghten
test after the person who attempted to assassinate President Regan was acquitted under the MPC test
o Many states shifted back too
EXCUSE DEFENSES – CASES
US v. Contento-Pachon, 9th Cir. 1984, p.669

1. F: CP was taxi driver in Bogota, Colombia; allegedly was offered job by client Jorge to be private driver; when
they met to discuss this “job”, Jorge said he actually wanted CP to smuggle cocaine into US; when CP initially
refused, Jorge threatened that if he didn’t, CP’s wife and 3yo child would be killed by the drug cartel; CP agreed
and swallowed balloons of cocaine and boarded plane to US (with layover in Panama); CP was warned that he
would be watched the whole time and if he strayed from the plan, his family would be killed; when CP landed in
LA, he submitted to x-rays of his stomach revealing the drugs; at trial, he tried to invoke defenses of duress and
necessity; trial ct rejected this
2. H: There was sufficient evidence of duress so he should have been able to use this defense at trial (but not
necessity)
3. R: There are 3 elements of duress defense: (1) immediate threat of death or serious bodily injury (not a future
unspecified harm), (2) well-grounded fear that the threat will be carried out, and (3) no reasonable opportunity to
escape the threatened harm; CP’s testimony reveals sufficient evidence of all 3; (1) even though the threat was not
to CP (but to his wife and kid), this is still immediate given the context of the parties – Jorge was member of
powerful drug cartel with $$ means to monitor family and execute them AND there was a lot of $ at stake for the
cartel in CP performing the act so they had legit incentive to carry our threat if he failed; (2) not contest; (3)
though he was not physically restrained, the opportunity to escape must be REASONABLE – there was no
reasonable way to flee (he would have had to get his wife and kid and escape the city if not the country without
triggering the cartel and/or corrupt police’s attention)
a. + quasi-element (4) D submitted to proper authorities after attaining a position of safety; but ct says this
is only relevant in prison escape cases – ie, not here – bc in other cases, there is little difference b/w this
and the third element bc if D has opportunity to turn himself in to authorities, he also is in a position to
flee from the threat; plus, if anything, he voluntarily submitted to the x-rays so he kind of did turn
himself in
b. NO NECESSITY DEFENSE – bc this is only appropriate where D acted in the interest of the general
welfare of society; CP’s actions were provoked by human, not external forces
4. Dissent: There was neither immediacy nor unreasonable escape so the elements of duress are unfulfilled; further,
we must respect the trial ct’s decision bc of its proximity to the facts
5. NOTE: Now that ct has allowed him to invoke the defense, it is still going to be very difficult for CP to win at
trial bc he must now bring enough evidence to convince the jury that this is all true, which will be difficult to do if
all of the evidence is in Colombia (so kind of goes to the dissent’s point)
US v. Freeman, 2d Cir. 1966, p.693
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1. F: F was found guilty of selling drugs after he sold heroin to an undercover police officer; F had long history of
drug / alcohol abuse (and multiple concussions) and tried to invoke an insanity defense at trial (ie, he lacked
capacity to be found guilty for his actions); the trial ct applied the M’Naghten test for incapacity, which provides
that to avoid crim liability, a person must suffer from mental disease or defect that makes him incapable of
knowing the nature and quality of his actions or that those actions were wrongful; F’s expert psychiatric witness
testified that F had experienced toxic psychosis, delusions, amnesia, brain trauma, etc.; further, he said that though
F knew that he was selling heroin at the time of the crime, he did not know that it was wrong; the prosecution’s
expert psychiatric witness said that even though his drug use may have compromised his mental capacity, he
could still tell right from wrong; the trial ct decided this did not meet the M’Naghten test standard; the judge
therefore had to convicted him
2. H: The best test for crim liability is the one from the MPC – remanded to apply this test
3. R: Society does not punish the mentally ill for criminal acts bc it does not serve the 3 purposes of crim law – (1)
Does not serve to rehabilitate them (institution > prison, in terms of helping them), (2) Does not serve to deter
them (bc by they will never be able to control their conduct), and (3) Does not serve any retributive purpose (bc
there is little satisfaction from punishing them); the M’Naghten test is outdated and too strict, bc it does not allow
for someone who knows right from wrong but cannot control their actions; in Durham, the ct rejected the
M’Naghten test and asked instead simply whether the criminal act was the product of some mental disease /
defect; the MPC has another rule that a that a person should not be held criminally responsible if at the time of the
criminal act, due to some mental disease or defect, he lacked the substantial capacity to appreciate the
wrongfulness of his conduct or conform that conduct to the law; of the three tests, the MPC is the best bc it
acknowledges that mental illness can manifest in different ways, does not require total incapacity, and mere
knowledge of wrongfulness is NOT the same as understanding
INCHOATE CRIMES
Inchoate crimes: Punishing the crime even though the actor has not completed the crime that they set out to and intended
to complete
 Attempt
 Conspiracy
 Solicitation (we are not covering): D is guilty of solicitation if he requests or encourages another to commit a
crime – ie, hiring a hit man to kill someone else
 ~ Accomplice liability (ie, aiding and abetting) – not technically an inchoate crime bc the crime HAS been
completed and inchoate crimes refer to where the crime has not been completed
**note that you can be charged both as conspirator AND w/i accomplice liability**
Attempt Conspiracy Accomplice liability
Basic idea D tried to commit a crime but did not D agreed to commit a crime, and at D did not take part in the crime but is
finish it for some reason least started to commit it morally liable for the consequences
bc he helped in its commission
Inchoate Yes Yes No
crime?
Substantive Yes Yes No
crime?
Merge with Yes – you cannot be charged with No – you can be charged with both ------
completed attempt and the underlying crime the underlying crime AND
crime? (the whole point is that you never conspiracy to commit it
fully committed the crime)
(they are separate prosecutable
offenses)
Actus reus Doing something towards the (1) Agreement to commit a crime – A provides some assistance to P
commission of the crime – JDs have - Unilateral: only 1 person beyond mere presence (- PACE IN)
three tests: needs to intend to commit the - If 2+ elements, assisting in one
- Substantial step (MPC, - HARRIS conspiracy in re the fulfills actus reus (-
IL, + HINKHOUSE OR) agreement ROSEMOND)
- Unequivocal step (+ STAPLES - Bilateral: 2+ ppl need to agree
CA) (- PACHECO WA)
- Dangerous proximity (- RIZZO (2) Some overt act by any one
NY) conspirator in furtherance of the
conspiracy
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Attempt Conspiracy Accomplice liability
Mens rea ** very similar requirements ** (1) Intent to do the acts that assist P in
(1) Intent to commit the act (1) Intent to agree to commit the the commission of the crime
(2) Specific intent to commit the crime (2) Whatever mens rea is required for
target offense and cause ultimate (2) Specific intent to commit the the commission of that crime (+
social harm (- HARRIS IL, + target offense and cause ultimate FOSTER IL)
HINKHOUSE OR) social harm (- SWAIN CA) - If 2+ elements, BOTH mens
reas must be fulfilled (-
ROSEMOND)
You CANNOT be guilty here where the underlying crime has a mens rea of CAN be guilty where the underlying
reck or neg – bc BOTH are specific intent crimes crime has a mens rea of reck or neg
eg, - HARRIS IL – jury eg, - SWAIN CA – cannot eg, + FOSTER IL – D was

instructions allowed for conspire to commit Murder II on accomplice to criminally neg
conviction if found intent to theory of implied malice (aka homicide
commit “great bodily harm”, “intent” implied by extreme
which is NOT the same as intent recklessness – see KNOLLER
to kill CA)
Scope of ----- ** scope of liability expands beyond target crime to extra offenses committed
liability by others parties **
(so where D neither took part in the extra offense
nor was the extra offense part of the original conspiracy / plan)
Pinkerton doctrine: Conspirator may Natural and probable consequences
be held liable for an additional crime theory: A can be held liable for
committed by a co-conspirator  additional crimes that P committed
extra crimes must be (1) committed during his commission of the target
in furtherance of the conspiracy, (2) crime  extra crimes must be said to
w/i the scope of the conspiracy, and have “reasonably ensued” from
(3) an (objective) reasonably commission of the target crime (-
foreseeable consequence of the ROY)
conspiracy
(+ MOTHERSILL)
Defenses Renunciation (MPC): D stops - PACHECO WA: It is NOT an ~ If P is not found guilty then A
commission of the crime and tries to affirmative defense that the other cannot be found guilty (not really a
unwind the crime party to the conspiracy cannot be or defense tho)
- Affirmative defense has not been found guilty
- Not all JDs have this defense – it
will likely depend on what actus
reus test the JD uses
- eg, if “dangerous proximity” then
you can unwind bc takes a lot for
actus reus to be committed and this
is when we view the crime as
“happening” (eg, NY – NYPL §
40.10, - RIZZO) but if “substantial
step” then only takes a little (eg,
OR – + HINKHOUSE)
Conspirator A could be convicted of:

1. The conspiracy crime (eg, conspiracy to commit burglary)
a. At this point, you CANNOT be convicted of complicity bc complicity requires the plan to be completed
at least in part
2. The target crime
a. If successful completion, convicted of the target crime (eg, burglary), OR
i. If Conspirator A was the Principal, will be just charged with the basic target crime
ii. If Conspirator B was the Principal in the commission of the crime, Conspirator A can be charged
as an accomplice
b. If commission of the crime was somehow thwarted, convicted of attempt of the target crime (eg,
attempted burglary)
i. See above – Conspirator A can still be convicted as an accomplice to an attempt crime AND still
of conspiracy crime
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3. Vicarious liability for Conspirator B’s crimes
a. Pinkerton doctrine of conspiracy where Conspirator B commits another crime at any point (eg, killing
someone who found out about the planned burglary and was going to inform the police)
b. Natural and probably consequences theory where Conspirator B commits another crime during the
commission of the target crime (eg, shooting and killing someone during the burglary)
i. So does NOT apply to attempt (???)
ATTEMPT
Attempt, generally:
 If you are convicted of an attempted crime, you are usually convicted almost to the full degree as if you had
actually committed the crime
 In fed criminal code, there is no general attempt statute – you can only be charged with attempts for specific
crimes that have it built in to them (vs. most states have general attempt statutes – eg, NYPL §110.00 and OR §
161.405)
 Attempt: Act, done with intent to commit a crime, but failing to effect its commission
o Complete attempt: A shoots B in the head and B does not die; A is guilty of attempted murder
o Incomplete attempt: A runs toward B with a loaded gun screaming “I’m going to shoot you”; bystander
knocks A over has he is shooting so bullet goes astray; A is guilty of attempted murder
 Considerations in charging, convicting, and sentencing –
o What are the circumstances?
 + STAPLES CA stopped doing the crime – even if no defense of abandonment, he did make an
affirmative choice not to go through with it
 vs. – RIZZO NY who only only did not carry out the crime bc he was caught before he could
o Severity of the crime / social harm of the crime – is kidnapping (RIZZO) more “serious” than bank
robbery (STAPLES)?
 Innocent victim vs. “faceless” victim that is probably insured
 Also the increased risk of physical personal harm to the victim in RIZZO
 Negative externalities of each?
NYPL § 110.00: Attempt to commit a crime

A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect
the commission of such crime.
 “Engaging in conduct which tends to effect the commission of such crime” means being in dangerous proximity to completing the
crime (– RIZZO)
OR § 161.405(1): Attempt
A person is guilty of an attempt to commit a crime when the person intentionally engages in conduct which constitutes a substantial
step toward commission of the crime (see + HINKHOUSE)
 Actus reus: Engaging in conduct that goes towards the commission of the crime
o The difficulty is determining how much of the crime needs to be completed for it to qualify as intent
o Main concern = at what point does D cross the line between preparation and perpetration?
o Three approaches –
 ** Listed in descending order of completeness of the crime, therefore from the lowest bar to highest
bar to be met **
 Dangerous proximity (– RIZZO NY, significant minority of JDs): D must be so near to completing
the crime that “in all reasonable probability the crime itself would have been committed but for
timely interference”
 Other considerations –
o Acts that are very near to the accomplishment of the intended crime
o An overt act such that the commission of the crime would be the natural effect,
unless prevented by some extraneous force  ie, is there anything to stop D from
committing the crime?
o An act immediately, not remotely, connected with and directly tending to
commission of the offense
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 – RIZZO: Ct suggests that the line at which Rizzo would have satisfied attempt is when D is
in the presence of the victim
 Under this test, if police intervene at any point before D sees the victim, D can’t be
prosecuted for attempt
o This could have implications on how the police will engage
 Unequivocal step (+ STAPLES CA): Once D has acted in the performance (NOT mere preparation)
of the crime, he can be found guilty of attempt and cannot raise the defense of abandonment
 Act must be far enough toward accomplishment of the desired result to amount to
commencement of consummation
 Preparation = devising or arranging means or measures necessary for commission of the
offense
 Attempt = direct movement toward commission after preparations made
 Substantial step (MPC, – HARRIS IL, + HINKHOUSE OR, majority of JDs): Once D has done
any act which is a substantial step in the undertaking of a crime, he can be found guilty of attempt
 How much has D done towards committing the crime? (vs. how much left does D have to
do)
Substantial step ---------------------------------------------------- Unequivocal step -------------------------------------------- Dangerous proximity

MPC, – HARRIS IL On this end of the + STAPLES CA On this end – – RIZZO NY
spectrum – what has D what does D
already done? have left to do?
 Mens rea: There are TWO mens reas for intent bc it is a specific intent crime
 D must intentionally commit the act (ie, the actus reus)
 D must perform those acts with the specific intent to commit the target offense and cause the ultimate social
harm (– HARRIS IL, + HINKHOUSE OR)
o So prosecution must show that D had the mens rea (intentionally, knowingly, etc.) of the underlying
offense when he committed the actus reus
o The intent to commit the ultimate social harm does NOT need to be with respect to a particular
victim (can just be general)
 eg, HARRIS – intent to kill, not necessarily intent to kill his gf
 eg, RIZZO – intent to rob, not necessarily intent to rob Rao
o Therefore, D CANNOT bc convicted of attempt for crimes with reckless OR neg mens reas bc you
cannot intend to bc reckless or neg
 Cannot be guilty of attempt for involuntary manslaughter (eg, criminal neg in WILLIAMS
WA)
 Cannot be guilty of attempt for depraved heart murder (eg, extreme recklessness in
KNOLLER CA)
 SO WHEN CHARGING D WITH ATTEMPT, PICK A CRIME WITH AN
APPROPRIATE MENS REA
 But note, in some JDs if there is very strong evidence of D’s intent, then a weak(er) actus reus can be enough to prove
attempt (3rd test on Staples slide)
Defenses to attempt –
NYPL § 40.10: Renunciation

(3) … it is an AFFIRMATIVE DEFENSE that, under circumstances manifesting a voluntary and complete renunciation of his criminal
purpose, the defendant avoided the commission of the crime attempted by abandoning his criminal effort and, if mere
abandonment was insufficient to accomplish such avoidance, by taking further and affirmative steps which prevented the
commission thereof
 eg, if D is acting with 3Ps in pursuit of the crime, then walking away would not be enough – he would have to take
affirmative action to STOP the other parties from completing the crime after he backs out
(5) A renunciation is not “voluntary and complete” … if it is motivated … by (a) a belief that circumstances exist which increase the
probability of detection … or which render more difficult the accomplishment of the criminal purpose, OR (b) a decision to
postpone … or [find a new victim]
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 Renunciation / abandonment: Occurs where D stops in this commission of the crime voluntarily and bc of a chance of
heart of conscience (STAPLES CA)
o Renunciation is NOT from the common law, but was introduced by the MPC
o The basic idea of renunciation is that D has to UNWIND THE CRIME
o Many JDs require D to take affirmative steps to prevent the commission of the crime; HOWEVER, these JDs
are likely the ones that use a dangerous proximity actus reus test (eg, NYPL § 40.10 and RIZZO)
 vs. OR which has no renunciation defense – this is bc OR uses a substantial step actus reus test
(HINKHOUSE); HOWEVER, you CAN’T unwind the intentional substantial step that you’ve taken
with the intent to commit the overall social harm
 Impossibility (but we don’t study this)
COMPLICITY
Complicity / accomplish liability, generally:
 This is technically not an inchoate crime (but you can use accomplice liability for inchoate crimes)
 NOT A SUBSTANTIVE CRIME IN ITSELF – so won’t see statutes aimed at it (unlike attempt)
 Instead, accomplice liability doctrine is just a way to prove that D is guilty of the crime himself / itself
o We are punishing him for the moral liability associated with the commission of the crime and resulting
social harm
o Derivative liability: A’s guilt derives from B’s (the principal) guilt
 That’s why you can’t have A’s trial until B’s – bc we need to know if B is guilty
 A will not be guilty (or even tried?) if B is not guilty
 Distinctions and definitions –
o Principal in the first degree (“P1”): The person who actually commits the acts constituting the offense
 Direct liability
 eg, P1 robs a bank
o Principal in the second degree (“P2”): The person who intentionally assists the principal in the first
degree and is present (either actually or constructively) during the commission of the crime
 Constructive presence is often enough to render assistance
 eg, P2 is the lookout outside while P1 is robbing a bank
o Accessory before the fact (“ABF”): A person who intentionally assists, but is not present for, the
commission of the crime
 eg, ABF buys guns for P1 and P2
o Accessory after the fact (“AAF”): A person who helps the principal in the first degree and their
accomplices avoid arrest, trial, or conviction
 eg, P1 and P2 show up at AAF’s house; she agrees to let them hide the $$ there but did not
know anything about the robbery in advance
o *** Note that for the most part we only use the general terms “principal” and “accessory” now ***
 Under the modern approach, P1, P2, and ABF are all treated the same – all would be guilty of
the same substantive offense (see eg, CA § 31)
 Only AAF might be guilty of a lesser offense, which is not technically accomplice liability (see
eg, CA § 32) – NOTE: we don’t study this
 Punishment: Generally all principals and AAF are sentenced equally
o In practice, however, a judge may exercise discretion and give AAF a lesser sentence if the
circumstances merit it
CA § 31: “Principals” Defined

All persons concerned in the commission of a crime … and whether they directly commit the act constituting the offense, or aid and
abet in its commission, or, not being present, have advised and encouraged its commission … or who, by threats, menaces,
command, or coercion, compel another to commit any crime, are principals in any crime so committed.
18 USC § 2: Aiding and Abetting Statute  FEDERAL STATUTE – see ROSEMOND

Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission is
punishable as a principal  so also does not distinguish between common law actors – only Principal / Accomplice
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Requirements for the TARGET CRIME committed by Principal:
 NO NEED FOR A CAUSATION ANALYSIS
 Actus reus: Assisting the principal in the commission of the crime

o Mere presence is NOT enough (– PACE IN)
o Some assistance, no matter how trivial, is required
 Physical conduct is the easiest for the gov’t to prove
 Psychological influence or encouragement can suffice in some JDs (see CA § 31)
o Assistance can be in the form of OMMISSION if D had a duty to act
o If the crime has TWO parts to it, D only needs to have assisted in some way in ONE part of it (ROSEMOND)
– see below
 Mens rea: **two requirements**

 The intent to do the acts that assist the principal in the commission of the crime, AND
 The mens rea required for commission of the crime
 ie, D needs to have the mens rea that the principal had when the principal committed the crime
 + FOSTER CT: Accessory to criminally neg homicide – bc going after the guy, giving his
friend the knife, and leaving his friend to watch him was all neg
o Therefore, D can assist in the commission of unintentional crimes (recklessness
and neg) – vs. attempt and conspiracy where you can’t
 If the crime has TWO parts to it, D needs to satisfy BOTH (ROSEMOND) – see below
o Put together: D has to be intentional in the act that fulfills the actus reus requirement but negligent (or
whatever the relevant mens rea is) about the overall crime that was committed by way of the act
Key points of - ROSEMOND:

1. For statutes re crimes with multiple elements (ie, two crimes spliced together), actus reus for complicity is
fulfilled by committing the actus reus of only ONE element, BUT mens rea requires BOTH to be fulfilled
a. Offense: “Us[ing] or carr[ying]” a firearm “during … any crime of violence OR drug trafficking crime”
i. Two elements = using/carrying a firearm + committing a drug trafficking crime (or “crime of
violence” but not the case in Rosemond)
b. Actus reus = OR: Committing a drug trafficking crime  SO ACTUS REUS FULFILLED
i. Justification: Bc in aiding in commission of either part he necessarily helps complete the whole
offense
1. This is also in keeping with accomplice liability more generally – eg, for a robbery you
don’t have to take part in every step of the crime
c. Mens rea = AND: Intent to use a firearm AND intent to commit the drug trafficking crime  the latter
was shown but the former was not (bc no proof of advance knowledge), SO MENS REA NOT
FULFILLED
i. Justification: Bc you can’t commit a crime without intent to do both
2. Intending to commit a crime requires ADVANCE KNOWLEDGE of it
a. Actively participating in the crime plus advance knowledge of the crime (ie having the gun) is enough to
infer that a person intended to help commit the crime (ie, a drug sale that is armed)
b. Justification: If he did not know, D could have walked away from the commission of it
3. Jury instructions: Must clearly show what the jury is convicting Accomplice of – should be special instructions
a. For MENS REA elements: Did D CHOOSE, with full knowledge, to participate in the illegal actions?
i. Again, must show that D had advance knowledge of each element
ii. Then, committing the crime is enough to infer intent to help commit the crime
b. Gov’t would be smart to make two arguments if unclear what Accomplice’s role was (as in Rosemond)
i. He is the one that shot the gun – so you are trying to convict him as Principal in a crime (not
Accomplice)
ii. OR he aided and abetted in the commission of the crime – ie, he did not shoot it but still guilty
bc of accomplice liability
c. If gov’t has two theories, the jury instructions MUST make clear which theory they are convicting D on
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Requirements for any ADDITIONAL CRIMES committed by Principal:
 SCOPE OF ACCOMPLICE LIABILITY: If principal committed anything beyond the target crime, accomplice may
still be criminally liable for this!
 Natural and probable consequences theory: An accessory for any criminal act which in the ordinary course of
things was the natural and probable consequence of the crime that he advised or commanded, although such
consequence may not have been intended by him (ROY)
o No need to inquire about Accomplice’s mens rea / actus rea here – the entire point is that he was not involved
but bc it was so closely tied to the target crime, we can broaden liability
o Most JDs have this but NOT MPC
o Other factors / considerations –
 Look at what may REASONABLY ENSUE, not what might conceivably happen
 Must be “within a reasonably predictable range”
 NOT enough for the gov’t to show that the accomplice knew or should have known that the
principal might commit the extra offense
 Liability for consequences is in the normal range of expected outcomes if nothing unusual intervenes
(test from ROY)
 “Probable” is more exalting (better) than “possible”
o Inquiry steps –
1. Did Principal commit the target crime?
2. If so, was Accomplice an accomplice to the target crime for which he is criminally liable?
 See above for actus reus and mens rea requirements
3. Did Principal commit any other crimes?
4. If so, were those crimes within a reasonably predictable range of the target crime (even if
Accomplice did not intend for them to happen)
o – ROY: During the target crime of carrying a pistol without a license (CPWOL) (which was bc undercover
officer wanted to buy one), the principal using the gun to rob the officer was NOT a reasonably probably
outcome for which the accomplice can be held liable
o Danger: slippery slope concern in broadly applying N&P theory
 This is why drafters of MPC did NOT include it
 eg, ROY: Gov’t argues that armed robbery is an N&P consequence of CPWOL, but if ct accepted
this, then even where it was the police officer that used the gun to rob the principal, the accomplice
would STILL be liable for this
CONSPIRACY
Conspiracy, generally:
 Conspiracy is an inchoate crime
 So it is its own substantive crime (like attempt, unlike accomplice liability)
o You can be charged with both the underlying crime AND conspiracy to commit the underlying crime –
they are separate prosecutable offenses (unlike attempt)
 Does not usually merge with completed crime (vs. attempt which does merge)
WA § 9A.28.040: Conspiracy  NOTE: This is from PACHECO, NOT statutes packet

(1) A person is guilty of criminal conspiracy when, with intent that conduct constituting a crime be performed, he agrees with 1+
person to engage in … performance of such conduct, and any one of them takes a substantial step in pursuance of such
agreement
 Actus reus: Bilateral agreement (PACHECO) and substantial step (minority rule)
(2) It is NO affirmative defense that the other party to the conspiracy cannot be or has not been convicted
CA §§ 182, 184: Conspiracy

182: If 2+ persons conspire: (1) To commit any crime [see (2)-(6) in statutes packet - § 183 limits conspiracy to these enumerated
offenses]
184: No agreement amounts to a conspiracy, unless some [overt] act, beside such agreement, be done within this state to effect the
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object thereof, by 1+ of the parties to such agreement  so this is closer to majority rule
18 USC § 371: Conspiracy to commit offense or to defraud US  FEDERAL STATUTE re Assange indictment
If 2+ persons conspire either to commit ANY offense against to US or to defraud the US … and 1+ of those persons do any act to
effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than 5 years, or both
Requirements for the TARGET CRIME committed by conspirator(s):
 Actus reus: **two requirements **

 There was an agreement to commit a crime (aka meeting of the minds) – can be bilateral or unilateral
depending on the JD
 Bilateral approach (- PACHECO WA): It must be a true agreement with TWO+ parties legit
intending to agree
 EL: Think of K law!!
 This is particularly important where one of the parties is acting on behalf of the gov’ts
interests – eg, undercover agent, informant, etc.
o BUT even if there is an informant in the room as pretending to be one of the
parties, the bilateral actus reus can be fulfilled if there are still at least 2 ppl who
are still an agreement
 eg, if 3 ppl were agreeing to commit investor fraud but 1 was an
undercover informant, the 2 others could still have a bilateral agreement
 Justification: The primary purpose of criminalizing conspiracy is that group criminal
activity poses increased danger to society
o - PACHECO WA: Therefore, when one of the parties is an undercover agent, this
point is moot bc there really is no danger
 Unilateral conspiracy is a legal fiction – therefore, there is a greater potential for abuse by
justice system bc it allows us to manufacture crimes
 Unilateral activity will usually be attempt or solicitation anyways so don’t need conspiracy
 Unilateral approach (MPC): Any agreement shows that D intended to conspire (even where one
party is faking)
 Justification: A person who agrees to commit a crime and intends to commit that crime is
dangerous
 The entrapment defense protects Ds against potential abuses
 Majority rule: Some overt act in furtherance of the conspiracy by au moin one conspirator (eg, CA § 184)
 Minority rule: Taking a substantial step towards commission of the crime (eg, - PACHECO WA)
 This act does NOT need to be illegal – eg, conspiracy is for murder and D1 goes and legally buys a
gun
 Mens rea: ** two requirements ** – bc it is a specific intent crime

 Intent to enter into the agreement / conspire (ie, intent to commit the actus reus)
 Intent to commit the underlying target crime that is the object of the conspiracy (ie, intent to commit the social
harm)
 So can’t be convicted where underlying crime has a mens rea of recklessness or negligence
 - SWAIN CA: Conspiracy for Murder II
 Murder II: “unlawful killing … with malice aforethought” where malice can be express or
implied
o Express malice = intent to kill
o Implied malice = legal fiction whereby the “intent” is shown after the fact to have
existed bc of D’s extreme recklessness / depraved heart
 Depraved heart murder (KNOLLER CA): D acted with conscious
disregard to the danger of human life
 But you can’t intend to be reckless! – they are mutually exclusive so jury instructions were
wrong
 CA Supreme Ct says that all conspiracies to commit murder are necessarily premeditated
and deliberate – therefore can be convicted of conspiracy to commit Murder I
 NOTE: He could have been as an accomplice (see FOSTER CT), but not for attempt
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Requirements for any ADDITIONAL CRIMES committed by a conspirator:
 SCOPE OF CONSPIRACY LIABILITY: If conspirator committed anything beyond the target crime, other(s) may be
criminally liable for this!
 Pinkerton Doctrine: Conspirator may be held liable for a crime committed by another co-conspirator, even if they did
not take part in it and it was not part of the original conspiracy
o Applies in all fed cts, but only in some state JDs (vs. MPC and other JDs reject it bc very controversial)
 Requirements (per SCOTUS, applied in + MOTHERSILL):
1. The additional crime was committed in furtherance of the conspiracy
 Mothersill: Yes – the death of the trooper was an unintended result of the intent (attempt?)
to kill another person, which itself was motivated bc the actor was concerned she would
snitch about the conspirators drug ring
2. Within the scope of the conspiracy (this is very related to #3 below)
 Mothersill: Yes – given the substantial amount of drugs and money involved, it was within
the scope – conspirators must have been aware of the likelihood that one member would kill
someone if necessary to protect the conspirators’ interests
3. A reasonable foreseeable consequence of the conspiracy – even if NOT part of the conspiracy
 Objective standard of reasonableness – ie, what would a reasonable person who was in the
circumstances expect to happen?
 Mothersill: Yes – murder for an underlying drug conspiracy is reasonably foreseeable bc
two of the conspirators had already killed someone (indeed, this is what motivated the death
at issue here), the conspirators repeatedly threatened violence, and were consistently armed
with deadly force
INCHOATE CRIMES – CASES
People v. Rizzo, NY 1927, p.794  ATTEMPT ACTUS REUS

1. F: R and 3 others intended to rob Charles Rao of a payroll worth $1200; R was supposed to point out Rao to the
other men, who would do the actually robbing; all 4 were driving around town looking for Rao, but they were not
able to find him, despite driving and looking everywhere; nearby police became suspicious and followed the
vehicle; R fled the car; all 4 men were arrested; R was convicted of attempted 1st degree robbery
2. Rule: Attempt – “an act, done with intent to commit a crime, and tending but failing to effect its commission”
3. H: This does not meet the actus reus requirement of “dangerous proximity” – R’s conviction is overturned
4. R: The word “tending” in the statute is very indefinite; tending means to exert activity in a particular direction;
while any act taken in preparation to commit a crime can be said to be “tending” its accomplishment, only those
acts which advance very near to the accomplishment of the intended crime will support an attempt conviction; the
act must have a “dangerous proximity” to successful completion of the crime; here, R intended to commit the
crime, but they never had the opportunity; their acts are too remote to support a conviction
People v. Staples, CA 1980, p.796  ATTEMPT ACTUS REUS

5. F: While his wife was away from home, S rented a 2nd floor office that he knew was located directly above a bank
vault; S bought drilling tools, gas tanks, and a blow torch; on a day when he knew the building was empty, S
began to drill holes in the floor BUT stopped before the holes when through the flood; S claimed he began to have
doubts about the plan and realized it was absurd after his wife was home; S tried to bring a defense of
abandonment, but the trial ct ruled it did not apply bc S dropped his plans involuntarily; S was convicted of
attempted burglary; S appealed on grounds of insufficient evidence
6. Rule: Attempt – “any person who attempts any crime, but fails, or is prevented or intercepted in the perpetration
thereof is punishable…”
a. NOTE: This statute actually circumvents what happened in Rizzo – ie, intercepted
7. H: This meets the actus reus requirement of unequivocal step so he could not bring a defense of abandonment – S’
conviction is affirmed
8. R: Once D’s acts go beyond preparation and reach the point where they constitute an attempt, D can no longer
raised the defense that he abandoned his attempt; there are two types of abandonment, voluntary and involuntary
(where D is prevented / intercepted); only voluntary abandonment is a valid defense; here, S’ act in drilling was a
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direct step toward completing the burglary and therefore constitutes an attempt; thus, he cannot raise the defense
of abandonment; the inquiry of whether he voluntarily or involuntarily abandoned the plan is therefore irrelevant
People v. Harris, IL 1978, p.806  ATTEMPT MENS REA

1. F: D was convicted of attempted murder of his girlfriend; they got into an argument about her alleged infidelity
when in the car; he had a gun which he aimed at her while in the car; he made remarks that she interpreted as
threats to kill her; they got into a physical altercation and she tried to escape; she eventually got in the driver’s
side of the car and drove off; he shot the gun at the car and the bullet hit and broke rear window; at trial, the jury
instructions said that he was guilty of attempted murder if the gov’t proved that (1) he “performed an act which
constituted a substantial step towards the commission” of murder [so this is MPC approach!], and (2) he did so
with the intent to commit murder; the jury instructions also defined murder as acting with the intent “to kill or do
great bodily harm”; D appeals on erroneous jury instructions, arguing that jury could convict him if it found only
the intent to commit bodily harm (not just intent to kill)
2. Rules: IL Criminal Code
a. Attempt: “A person commits attempt when, with intent to commit a specific offense, he does any act
which constitutes a substantial step towards the commission of that offense”;
b. Murder: Occurs where D kills an individual if “(1) he either intends to kill or do great bodily harm …, (2)
he knows that such acts create a strong probability of death or great bodily harm …,” or (3) FM
3. H: The jury instructions must make clear that attempted murder requires criminal intent to kill (ie, do the ultimate
social harm) – so D’s conviction is reversed and remanded
4. R: For attempted murder it is not sufficient to show that D intended to do serious bodily harm or that he acted
recklessly; “this is bc INTENT is needed for the crime of attempt, so that attempted murder requires an intent to
bring about that result described by the crime of murder”
a. Justifications (in class): (1) If you shoot someone intending to commit bodily harm and then they die,
makes sense that they would be charged with murder; BUT if you attempt to commit bodily harm, then
doesn’t necessarily follow that you tried to kill them; (2) A high bar for intent helps limits the scope of
attempt bc of the much higher bar for murder than attempt (ie, actus reus – in attempt you are not doing
the full actus reus of the crime of murder (you could even be convicted for holding a gun, maybe not
even shooting) & social harm – obviously much greater harm for legit murder than intent)
People v. Hinkhouse, OR 1996, p.809  ATTEMPT MENS REA

1. F: D had HIV; D understood that HIV is a life-threatening disease and that it was transmitted through sexual
intercourse; he and his parole officer discussed this repeatedly, and he signed an agreement saying he would not
have sex (unprotected or otherwise); still, D had unprotected sex with a number of women, either lying to them
about his HIV status when they asked or not disclosing it before sex; even when they requested he use a condom,
he would not – either by refusing or by tricking them; the only woman who he was honest about his HIV with and
who he used a condom with was the woman he wanted to marry; D was convicted of 10 counts of attempted
murder and 10 counts of attempted assault I; D appealed the conviction, arguing insufficient evidence to show
intent to kill (recklessness at most bc he was just doing it to “satisfy his sexual desires”); the gov’t argued that his
statements and pattern of behavior implies intent
2. Rules: OR Criminal code defines attempt (in Statutes packet) – but unclear where other definitions come from
a. Attempt: D is guilty when he “intentionally engages in conduct which constitutes a substantial step
toward commission of the crime”
b. Assault I: D is guilty when he “intentionally causes serious physical injury to another by means of a
deadly or dangerous weapon” [virus being the deadly weapon]
i. Actus reus: engaging in a substantial step – so having unprotected intercourse with women
ii. Dual mens rea –
1. Did he intentionally commit the acts (ie, unprotected sex)? YES
2. Did he have the intent to create the ultimate social harm of the crime (ie, did he have
intent to cause serious physical injury)?
c. Murder: D is guilty when he “intentionally causes the death of another”
i. Actus reus: engaging in a substantial step – so having unprotected intercourse with women
ii. Dual mens rea –
1. Did he intentionally commit the acts (unprotected sex)? YES
2. Did he have the intent to create the ultimate social harm (intent to kill)? YES
d. Intent: To “act with a conscious objective to cause the result or to engage in the conduct so described”
3. H: There was sufficient evidence for a rational trier of fact to find he had intended to cause both physical injury
and death – so affirmed
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4. R: He knew he was HIV positive and that his condition was terminal; he knew how the disease was transmitted
and how to best avoid transmission; despite this, he engaged in a “persistent pattern” of lying, tricking, etc. with
women to have unprotected sex with them; he did in fact transmit the disease to them [NOTE: the women actually
getting HIV is not a factor (imagine if he was shooting them instead) bc having sex with them is the actus reus,
not necessarily transmitting the disease]; further, the fact that he DID wear condoms and tell the women he wants
to marry about the HIV shows that he acted deliberately to cause the other women bodily injury and death
Pace v. State, IN 1967, p.822  ACCOMPLICE LIABILITY ACTUS REUS

1. F: D was convicted of accessory before the fact of robbery; D was driving with his family and Rootes in a car
when they picked up a hitchhiker, Reppert; Rootes robbed Reppert and took his wallet; when D later dropped
Reppert off, Rootes also took his watch; D never tried to stop the crime; D appeals on grounds of insufficiency of
the evidence
2. H: There is no actual or constructive evidence to show that D aided and abetted the crime – so reversed
3. R: The general rule is that D must have affirmatively done something to constitute aiding and abetting; however, it
MAY be permissible to infer from D’s negative conduct (failure to act) that he assented to the commission of the
crime and therefore abetted it; but this rule historically only applies where D has a duty to protect the victim; here,
D did not and there is no evidence of affirmative conduct; therefore, no evidence to support the actus reas element
4. NOTES: this is 1967 so pre-MPC, which is why he’s not charged as AAF (???)
CA state jury instructions re accomplice’s testimony in convicting principal

 In CA, jury cannot convict the principal based on the testimony of the accomplice alone
 There must be corroborating evidence (although it can be slight)
9th Cir. Jury instructions re accomplice’s testimony in convicting principal

 NO requirement of corroborating evidence
 Although, it does make it very clear that accomplice is accepting a deal for his testifying to this end – so low key
warns jury to take precautions regarding his credibility
State v. Foster, CT 1987, p.825  ACCOMPLICE LIABILITY MENS REA

1. F: D’s girlfriend was raped and robbed; she described her attacker to D and he and his friend, Cannon, went to
look for her attacker; they found a person, Mitchell, who matched the description and beat him up; D went to get
his girlfriend so that she could confirm they had the right guy; D gave Cannon a knife to make sure that Mitchell
did not get away; while D was gone, Mitchell charged at Cannon, who held out the knife and which stabbed him
and killed him; D was convicted of being an accessory to criminally neg homicide; D appeals arguing (1) no mens
rea bc he can’t be found to have intent for a crime that logically requires no intent (neg), and (2) even if so, no
evidence to support the conviction
2. Rule: “A person acting with the mental state required for the commission of an offense, who intentionally aids
another … to engage in conduct which constitutes an offense shall be criminally liable for such conduct as if he
were the principal offender”
3. H: D may be convicted as an accessory to a criminally negligent act if the evidence shows that the defendant
possessed the requisite mens rea for the crime while intentionally aiding another in the crime’s commission; bc
the prosecution did this, there was sufficient evidence for his conviction – so affirmed
4. R: Accomplice liability does not require D to act with a conscious objective to cause the direct result of the
principal’s crime; the “dual intent” of accomplice crimes is that (1) D acted with intent to aid the principal in his
commission of the crime, and (2) D acted with the requisite mens rea to commit the offense; D is therefore liable
as an accessory to criminally neg homicide if he intentionally aids the principal while failing to perceive a
substantial and unjustifiable risk of death; D was neg bc a reasonable person would not have given his friend the
knife bc there was an obvious perceivable risk; therefore he had the requisite mens rea as an accomplice
a. SO have to be intentional in the act that fulfills the actus reus requirement but negligent (or whatever
appropriate mens rea) about the overall crime that was committed by way of the act
Roy v. US DC Ct. App. 1994, p.834  ACCOMPLICE LIABILITY N&P CONSEQUENCE THEORY
1. F: Roy and Ross were both convicted of armed robbery and carrying a pistol without a license (CPWOL); Miller,
an undercover cop, asked Roy to get him if he could purchase a gun (illegally); at the trade, Roy confirmed that
Miller had the requested $400 and then told him to go see Ross nearby who had the gun; Ross gave the gun to
Miller but asked for it back shortly after; Ross then loaded it, pointed it back at Miller, and robbed him of the
$400; Miller testified at trial that Ross was doing this bc Miller had “stuck up his ppl”; Roy contends that there is
insufficient evidence to support the conviction for armed robbery and appeals the trial ct’s denial of his motion for
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judgment of acquittal (MJOA); gov’t argues that the natural and probable consequences doctrine proves he was an
accomplice to the robbery
2. H: There was insufficient evidence to support Roy’s conviction for armed robbery – so reversed on this count, but
affirmed the 3 other convictions
3. R: Firstly, there was no evidence of Roy’s direct intent to be complicit in the robbery of Miller, so a reasonable
jury would never have accepted this; the trial court erred in allowing the gov’t to introduce the natural and
probably consequences doctrine; a natural consequence is one “which is within the normal range of outcomes that
may be expected to occur if nothing unusual has intervened”; though Ross’ robbery of Miller was certainly a
conceivable event, it was not reasonably to be expected; there are vast differences in the crimes of CPWOL /
selling a gun and armed robbery so you can’t say the former would necessarily, or even probably, lead to the latter
in the “ordinary course of events”; also, the gov’ts arg is a slippery slope / floodgate concern bc would lead to too
broad an applicable of the N&PC doctrine (ie, if the robbery had been Miller robbing Ross, this would be
supported); finally, the sentences for each crime (misdemeanor for CPWOL vs. potential life imprisonment for
armed robbery) is a factor – though not a legal one
Rosemond v. US, SCOTUS 2014 [Canvas]  ACCOMPLICE LIABILITY WHERE MULTIPLE ELEMENTS TO
CRIME– NOT N&P
1. F: Perez arranged a drug deal; Gonzales and Painter were to buy 1 pound of marijuana from her; Perez drove to
deal with Rosemond and Joseph in her car; Gonzales got in (Painter was outside – so lookout?); he was given the
drugs but instead of handing over the money, he punched the man in the backseat (unclear if Rosemond or
Joseph); either Rosemond or Joseph then got out of the car and fired several shots from their gun; Rosemond
convicted of violating, by aiding and abetting, §924(c) of Title 18
a. D appeals on grounds of erroneous jury instructions – argues that the instructions they did not say that he
had to KNOW that his cohort was going to have a gun
b. Gov’t has two theories of D’s guilt under the statute
i. First option: He is the person who had and shot the gun (support for this is the fact that everyone
else involved is testifying against him)
ii. Second option: He aided and abetted in the violation of the statute, therefore is guilty of it
2. Rule: §924(c) of Title 18 prohibits “us[ing] or carr[ying]” a firearm “during and in relation to any crime of
violence or drug trafficking crime”; fed aiding and abetting statute says that “[w]hoever commits an offense
against the United States or aids, abets, counsels, commands, induces or procures its commission is punishable as
a principal.”
3. H: The jury instructions were incorrect bc they did not make clear that D had to KNOW about the presence of the
gun – so reversed and remanded
4. R: There are two elements of the statute – the drug part and the firearm part; Congress made both parts of the
crime one single drug trafficking offense; the actus reus of the crime is satisfied if D aids and abets in EITHER
element bc in helping to bring about one part of the offense (either), he necessarily helps complete the whole
offense; D’s participation in the drug sale therefore satisfies the actus rea of the overall crime; BUT it is not clear
that D had the appropriate mens rea for the crime; unlike the actus rea, the mens rea must be satisfied with respect
to both elements; in order for someone intend to aid in a crime, D must know about it and know that they are
violating it – ie, in order to intend to violate this crime, D must have known someone would have a gun; further,
this knowledge must be ADVANCE KNOWLEDGE; this is bc if not, D could have walked away from the
commission of it; so mens rea test (for jury instructions): Did D CHOOSE, with full knowledge, to participate in
the illegal actions?; here not clear he did, so conviction is vacated and case is remanded
State v. Pacheco, WA 1994, p.843  CONSPIRACY (issue is the agreement, ie the ACTUS REUS)
1. F: Pacheco was convicted of conspiracy to commit murder and conspiracy to deliver drugs; Pacheco (deputy
sheriff) bragged to Dillon (his coworker) about his involvement in criminal activities, including as a hit man;
Dillon informed the FBI about this and agreed to work with them undercover to arrest him; the plan was that
Pacheco would aid Dillon in an alleged drug deal; during the second “drug deal,” Dillon told him that he had been
cheated out of his money by the buyer; Pacheco offered to kill the buyer for $10K; Dillon and Pacheco came up
with a plan that Pacheco was to go to the lobby of a motel with his loaded gun and call the buyer down to the
lobby, where he would kill him; Pacheco never called the buyer, but was arrested in the lobby; Pacheco appealed,
arguing that he couldn’t be convicted of conspiracy bc there was no agreement between him and Dillon, since
Dillon was working undercover and never actually intended to agree
2. Rule: Conspiracy occurs when (1) They agree with 1+ ppl to engage in conduct that constitutes a crime AND
when any of the parties to the agreement takes a substantial step in furtherance of the agreement; and (2) it is no
affirmative defense that the other party to the conspiracy cannot be or has not been convicted
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As of 5/9/19
3. H: Conspiracy requires a bilateral agreement, of which there was none here – so conviction reversed
4. R: The primary goal must be to determine the leg’s intent in crafting the statute; both the dictionary definition and
common law definition of “agreement” support Pacheco’s arg and suggest that there must be TWO parties who
intend to agree to form the basis of the conspiracy; although (2) incorporates the MPC’s elements of a unilateral
agreement / intent (ie, if failure to convict one, the agreement can still be used against the other), this does not
indicate the leg’s intent to remove the bilateral requirement in (1); the primary purpose of conspiracy as a crime is
that group criminal activity poses increased danger to society, BUT this cannot exist where one of the parties was
an undercover agent; further, there is a high potential for abuse if we use a unilateral standard, which the leg could
not have wanted; thus, bc there was no fundamental agreement bc Dillon was acting as an undercover agent, there
can be no conspiracy
a. Inquiry for bilateral JDs – is the agreement a TRUE agreement?
b. Canon of construction re statutory interpretation: Maj says that when we are interpreting a statute and the
leg has not defined a word, we assume that the leg intended to use the word’s common law meaning
c. Substantial step: Pacheco going to get his gun is probably a substantial step
5. Dissent: Maj overlooks the difference between the bilateral and unilateral requirements; bilateral = focus on the
content of the agreement and whether there is a shared understanding of it among the conspirators; unilateral =
focus on whether the agreement manifests the criminal intent of at least one conspirator; maj does not even
discuss the unilateral requirement here; further, a comparison of the current statute with the previous version show
that the leg intended to adopt the MPC’s approach bc the predecessor tracked more closely the common law
approach; per the MPC, unlike common law, the basis of conspiracy (/ purpose) is NOT group criminal activity,
but the intent of “an individual to commit a crime which is objectively manifested in conspiring”
People v. Swain, CA 1996, p.849  CONSPIRACY (MENS REA)

1. F: Swain and Chatman were convicted of conspiracy to commit Murder II; C admits to being in the car during a
drive-by shooting where a 15yo boy (of a rival gang) was killed; S says that he was not there, and C testified to
this effect, but there is evidence that he was in the car at some point (fingerprint on window); jury was instructed
on the elements of Murder II, including the mens rea of implied malice; Ds appeal on grounds of erroneous jury
instructions, arguing that bc conspiracy is a specific intent crime, they cannot be convicted of conspiracy for a
crime (Murder II) that LACKS an intent
2. Rules: Conspiracy and Murder II
a. Conspiracy – 2+ ppl agreeing to commit a crime, with proof of an overt act by at least one of them;
conspiracy is a specific intent crime, so Ds must have (1) the intent to agree, (2) the intent to commit the
offense itself
b. Murder II (ie, depraved heart) – “unlawful killing … with malice aforethought”; malice can be express or
implied; express malice is intent to kill; implied malice is a legal fiction whereby the “intent” is shown,
after the fact, to have existed when the circumstances show an abandoned or malignant heart
3. H: Conspiracy to commit requires intent to kill and it cannot be based on implied malice – convictions reversed
(remanded??)
4. R: Conspiracy to commit murder based on express malice obviously is fine bc there is a legit intent of the Ds to
kill someone; BUT implied malice murder only requires “an intent to do some act, the natural consequences of
which are dangerous to human life”; thus, the intent to kill is backed out of the specific intent to commit some
dangerous act, and the circumstance that a killing has resulted from this act; the nature of conspiracy as an
inchoate crime “fixes the point of legal intervention” BEFORE the crime has been committed, but implied malice
murder backs out an intent AFTER the crime has been committed; thus, conspiracy for implied malice murders is
illogical bc “commission of the crime could never be established … unless and until a killing actually occurred”
US v. Mothersill, 11th Cir 1996, p.862  SCOPE OF CONSPIRACY LIABILITY

1. F: All of the Ds were involved in a large-scale drug operation involving cocaine distribution through multiple
states; two of them, Patrick Howard and Michael Morgan, killed a rival drug dealer in furtherance of their drug-
related conspiracy; Morgan’s gf Tammie Bailey found out about the murder; Patrick’s gf also found out, but
Patrick threatened to kill her and her family if she went to the police; Paul Howell (Patrick’s brother) decided to
kill Bailey so that she would not go to the police; he built a pipe bomb into a microwave oven to give to her; while
he was bringing it to her, he was stopped by a state trooper for speeding; he consented to the trooper opening the
gift-wrapped microwave oven; the bomb went off and the trooper was killed; all Ds were convicted of multiple
crimes, including the guilt for the trooper’s death; here, Morgan, Clark, Johnson and Mothersill appeal the basis
for this liability, arguing that his death was the unilateral action of Paul and was not foreseeable
2. Rule: Pinkerton Rule of vicarious liability in conspiracies (SCOTUS) – each party to a conspiracy may be
vicariously liable for the crimes of co-conspirators that were committed in the furtherance of the conspiratory
57
As of 5/9/19
crime, despite their non-participation in the crime and/or their lack of knowledge of it, if the crime was reasonably
foreseeable
3. H: There was sufficient evidence for a reasonable jury to conclude beyond a reasonable doubt that the murder of
the trooper was a reasonably foreseeable consequence of the drug conspiracy – convictions affirmed
4. R: Per this ct’s Alvarez decision, the Pinkerton rule includes liability for the crime even if it was originally
unintended, as long as it was reasonably foreseeable; in Alvarez, the ct decided that murder based on an
underlying drug conspiracy was reasonably foreseeable bc of (1) the scope of the conspiracy – ie, the “substantial
amount of drugs and money involved”, and (2) the jury’s ability to infer that the conspirators must have been
aware of the likelihood that one member would kill someone if necessary to protect the conspirators’ interests;
both elements exist here; Paul’s actions were foreseeable given the fact that Patrick and Morgan had literally
already killed someone in furtherance of the drug conspiracy, the members frequently threatened violence (eg,
Morgan’s gf), and the record shows they were consistently armed with deadly forces
Assange Indictment:
 Charged with conspiracy to “commit computer intrusion” (aka computer hacking)
o Note that though conspiracy will have it’s own statutes, you can’t be charged with only conspiracy
o Has to be conspiracy to DO SOMETHING
 Is the statute bilateral or unilateral?
o Unclear but case law interpreting the fed statute suggests that its unilateral
o Assuming it is unilateral, is there enough to show the agreement?
 There is an exchange of words regarding the inability to crack, practice cracking, etc.
 Their goal was to ensure that the hacking was not traced back to Manning
o BUT note that it doesn’t really matter – that difference only comes in to play when one party is an
undercover officer (which is not the case here)
 What is the overt act?
o Manning copied a CD with files on it that were only accessible to certain ppl and which were protected
o Manning gave Assange the password
o NOTE – even though Assange is being indicted here, it is sufficient that Manning (co-conspirator)
committed this acts in furtherance of the conspiracy
58

Outline - 05.09 Crim

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Outline - 05.09 Crim

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Criminal Law – Outline

CRIMINAL LAW, GENERALLY

General policy / principles –

SOURCES OF CRIMINAL LAW

 What is the purpose of criminalizing the behavior / action?

 Void of vagueness (Due Process Clause of the 5A and 14A)

PROCEDURAL POSTURE OF TYPICAL CRIME

 If statute is clear or if it already has accepted interpretation, apply that

People v. Suitte, NY App. Div. 1982, p.12

Regina v. Dudley and Stephens, Eng. 1884

Kolender v. Lawson, SCOTUS 1983

City of Chicago v. Morales, SCOTUS 1999

United States v. Dauray (2d Cir. 2000), p.66

 D‘s act must be voluntary (- MARTIN AL, + DECINA NY)

NYPL § 15.00: Culpability; Definitions of Terms

 Thought crimes NOT acceptable (DALTON article)

ACTUS REUS – CASES

Martin v. State (AL 1944), p.156

State v. Decina (NY 1956), p.157

People v. Beardsley (MI 1907), p.165

Robinson v. CA (SCOTUS 1962), p.181

Powell v. TX (SCOTUS 1968), p.185

~ Strict Liability Crimes

MENS REA – CASES

Regina v. Cunningham (Eng. 1957), p.202

United States v. Yermian (SCOTUS 1984), p.204

State v. Fugate, (OH 1973), p.215

US v. Jewell (9th Cir. 1976), p.217

Morissette v. US, S.Ct. 1952, p.232

Commonwealth v. Barone, PA 1980, p.237

Elonis v. US, S.Ct. 2015 [Canvas]

1. D’s conduct must be an actual or BUT-FOR CAUSE of the social harm

Henderson v. Kibbe, SCOTUS 1977, p.308

State v. Bingham, WA 1986, p.327  MURDER 1 but acquitted

Gilbert v. State, FL 1986, p.331  MURDER 1

People v. Ambro, IL 1987, p.340  VM @ common law

Commonwealth v. Carr, PA 1990, p.363  VM for reasonable person

State v. Dumlao, HI 1986, p.366  VM under MPC

People v. Knoller, CA 2007, p.376  depraved heart

Commonwealth v. Welansky, MA 1944, p.386  IM

State v. Williams, WA 1971, p.390  IM

Hines v. State, GA 2003, p.404  FM

People v. Howard, CA 2005 [Canvas]  FM

ELEMENTS OF FORCIBLE RAPE –

Modern view of forcible rape:

 Actus reus: Active penetration without consent

Basic modern elements –

Development of rape reform jurisprudence:

FORCIBLE RAPE – CASES

Rusk v. State, MD 1979 (intermediate ct app), p.434

Commonwealth v. Berkowitz, PA (intermediate app) 1992, p.452

State of NJ in the Interest of M.T.S., NJ 1992, p.461

 Related to this, there is a serious issue of race in enforcement of drug crimes

VARIOUS TYPES OF DRUG OFFENSES –

Unlawful possession: Basically, knowingly possessing any kind of classified substance

IL § 570/402: Possession unauthorized by this Act

 Mens rea: Knowledge of possession

 Mens rea: (1) Knowledge of possession, and (2) Intent to distribute

In re KA, IL App. Ct. 1997 [Canvas]

Whitaker v. People, CO 2002 [Canvas]

State v. Wilkins, NC App. Ct. 2010 [Canvas]

Jones v. State, GA App. Ct. 2010 [Canvas]

NYPL § 25.00: Defenses; burden of proof

 Mens rea: two requirements

 Actus reus: two requirements

 Mens rea: two requirements – bc it is a specific intent crime