Criminal Law Outline

Unit 1: Framing Principles

Punishment Philosophies
• Philosophies:
◦ Retributive: punishment based on moral dessert
◦ Utilitarian: punishment based on good to society (consequentialist)
• Goals:
◦ General deterrence
◦ Individual deterrence
◦ Incapacitation
◦ Reform
Sources of Law & Statutory Interpretation
• Legality:
◦ Criminal statutes should be understandable to reasonable, law-abiding people.
◦ Statutes should not delegate policy to police, judges, or juries.
◦ Lenity: interpret ambiguous statutes in favor of the accused.
• Ex post facto clause prohibits retroactive legislation.
• Due Process Clause prohibits retroactive judicial lawmaking.
• MPC created in 1962 and adopted in whole or in part by many states.

 In re Banks (1978) – Interpretation of a peeping tom statute (upheld). Principles:

◦ Where a statute can have two meanings, on constitutional and one unconstitutional,
use the constitutional meaning.
◦ Criminal statutes must be strictly construed, but where ambiguous, must be judicially
interpreted. Limiting construction can make it legit.
◦ Statutes must be sufficiently definite to give notice, but can only demand reasonable
certainty.
◦ Wainwright v. Stone – Claim of vagueness rejected because a vague term had been
judicially interpreted. Not considered in a vacuum, but in full context.
 City of Chicago v. Morales (1999) – Ordinance prohibits gan members from loitering.
Due process says that a law is void if too vague for the public to know what is prohibited.
Court finds both the definition of loitering and the terms of a required dispersal order
overly vague. Scalia dissent on freedom vs. safety.
 Muscarello v. U.S. (1998) – Interpretation of “carries a firearm.” Court looks at a pile of
dictionaries, legislative history, and the rest of the criminal code and says that D carried a
gun in a car. Rejects lenity—not ambiguous enough. Ginsberg dissent finds enough
ambiguity, in context of the penalty, to invoke lenity.

Unit 2: Basic Elements of Crimes: Acts, Mental States, Causation

Reasonable Doubt
 In re Winship (1970) – Ruling that the Due Process Clause requires the prosecution to
prove every element of a crime beyond a reasonable doubt.
Acts and Omissions
 • Components of a crime:
◦ Acuts reus – the harmful act element. Voluntary physical movement resulting in a
defined harm. Some crimes defined only in terms of conduct, not result. Voluntary
possession is an act. MPC 2.01
◦ Mens rea – Culpable mental state. Can mean either any blameworthy state of mind, or
required level intent as to the specific harm charged. Generally construed in the
narrower sense in modern law. MPC 2.02

 Martin v. State (1944) – Conviction of being drunk on a public highway reversed because
D was arrested at home and brought to the highway by police. Stature presupposes that
the actor is on the highway voluntarily.
 People v. Beardsely (1907) – D charged with manslaughter by omission for breach of a
duty of care to a mistress who took a bunch of pills while drunk. Court finds no legal
duty (though asserts a moral duty), and vacates the conviction.
 Case of Ray Edwin Billingslea
Mens Rea
• Mental states (MPC 2.02):
◦ Purposely – Result is a conscious object; circumstances are known, believed in, or
hoped for.
◦ Knowingly – Actor is aware of the nature of his conduct, or that circumstances exist,
or that a result is practically certain. Knowledge of a high probability will suffice.
Satisfies “wilfulness” requirement.
◦ Recklessly – Conscious disregard of a substantial and unjustifiable risk.
◦ Negligently – Should have been aware of a substantial and unjustifiable risk.
• Default required mental state under MPC is recklessness or higher.
• Intent at common law similar to knowledge under MPC.
◦ Ordinary presumption that an actor intends the natural and probably consequences of
his actions.
◦ Sandstrom v. Montana (1979) – Judge cannot constitutionally say the law “presumes
that a person intends the natural and probable consequences of his voluntary acts.”
Jury may rely on common sense, and the judge can tell them they may but need not
infer this.
• Transferred intent – intent to harm one person and actual harm to another satisfies mens
rea requirement.
• Specific vs. general intent (most common use):
◦ Specific intent – A special mental element above and beyond intent to commit the act.
E.g., possession with intent to sell.
◦ General intent – Any mental state that relates solely to the acts that define the
offense.

 Regina v. Cunningham (1957) – Court rejects a reading of “malicious” as meaning just

generally “wicked” and says D must have been reckless as to the exact type of injury that
occurred.
 People v. Conley (1989) - “Intentionally or knowingly causes... permanent disability.”
Court says a jury could reasonably infer that D was “consciously aware” that the harm
 defined was “practically certain,” so the state has carried its burden of proof.
 U.S. v. Heredia (2007) – Willful blindness—D failed to investigate a suspicious smell in
her car and thus was not technically aware that it contained drugs.
 State v. Nations (1984) – Underage dancer at a bar. Missouri did not enact the “high
probability” provision of the “knowingly” section of the MPC. Thus, though D had
reason to know that the girl was underage, she can't be convicted.
◦ U.S. v. Jewell (1976) – Federal courts generally allow a finding of knowledge on the
basis of willful blindness.
◦ Bryan v. U.S. (1998) – Discussion of the meaning of “willful.” May simply mean
intent, may mean intent in bad faith. MPC has a definition.
Strict Liability Offenses
 U.S. v. Cordoba-Hincapie (1993) – Strict liability for “public welfare” offenses with
relatively small penalties and statutory rape.
 Staples v. U.S. (1994) – Gun control statute criminalizes possession of certain guns
without specifying the mens rea requirement. Court rules that because the nature of the
gun did not put D on notice of possible regulation and that Congress can't have intended
strict liability for such a serious penalty without specifying it.
◦ Morissette v. U.S. - Distinction between common law and statutory crimes for mens
rea requirement—if Congress borrows from common law, assume the same terms.
 Garnett v. State (1993) – Statutory rape law does not specify mens rea. Retarded
defendant challenges a conviction. Court says it is strict liability based on legislative
history, other provisions, tradition of the offense, and plain language. Dissent discusses
the harshness of the penalty, assumption that D would be able to appreciate the risk.
◦ 29 states and DC have strict liability for rape; eighteen have a hybrid approach based
on victim's age; two reject SL entirely.
Mistakes
 People v. Navarro (1979) – Theft: “feloniously stealing... the personal property of
another.” D argues that good-faith mistake of fact should be a defense, while prosecution
wants to require that it be reasonable. Court says mistake must be reasonable, but rejects
the idea of larceny by negligence: mistake is a defense when it negates a required mental
element of the crime. So good-faith mistake here would merit an acquittal.
 People v. Marrero (1987) – Federal prison guard charged with a gun offense believed he
could carry a gun as a “peace officer.” Court says mistake of law is only a defense where
a person has relied on a flawed statement of law later revised. Dissent says no moral
culpability, and the allowed “mistake” is not really a mistake at all.
◦ Lambert v. California (1957) – Convicted persons needed to register to stay in L.A.
Court found a due process violation because passive conduct was criminalized. Must
have notice before a person can be liable for failure to act.
 Cheek v. U.S. (1991) – Tax code requires willful evasion for criminal liability. Court
rules that pilot's batshit belief that taxes are unconstitutional, if true, negates mens rea
requirement. The belief need not be reasonable as long as the jury believes it is real.
 Case of Linda Ruschioni
Causation in “Result Crimes”
 People v. Rideout (2006) – D convicted of DUI resulting in death challenges causation
element. Proximate cause: injury must be a “direct and natural result” of D's actions.
 Court finds that there was a superseding cause. Apparent-safety doctrine: “when D's
active force has come to rest in a position of apparent safety, the court will follow no
longer.” Voluntary human intervention generally breaks the chain of causation.
 Case of DeShaun McCarty

Unit 3: Homicide
Homicide and Premeditated Murder
• Common law murder: the unlawful killing of another person with “malice aforethought.”
◦ Intent to kill or awareness that death would result
◦ Intent to cause grievous bodily harm
◦ Depraved-heart murder: extreme recklessness
◦ Felony-murder
• Manslaughter:
◦ Heat of passion with adequate provocation
◦ Death through culpable negligence less than depraved-heart
◦ Misdemeanor-manslaughter
• MPC:
◦ Murder 210.2
▪ Purposeful or knowing
▪ Recklessly with extreme indifference for the value of life, including as related to
other specified felonies
◦ Manslaughter 210.3
▪ Reckless
▪ Murder with extreme mental or emotional disturbance with reasonable cause
◦ Negligent homicide 210.4
Premeditated Murder
 State v. Guthrie (1995) – Premeditation requirement for murder. Court requires “a time
period for prior consideration,” but does not set a limit, asking only that there be an
interval between intent and execution in which the accused be “fully conscious of what
he intended.” Rejects a ruling that requires only intent to kill.
◦ People v. Morin (1971) - “The interval between initial thought and ultimate actions
should be long enough to afford a reasonable man time to subject the nature of his
response to a 'second look.'” “Thought process undisturbed by hot blood.”
 Midgett v. State (1987) – Drunken child abuse resulting in death. D convicted of first
degree murder, but court finds no premeditated, deliberate purpose of causing death and
reduces to second. Accident or drunken rage both insufficient. Dissent says the jury could
find intent to kill.
Voluntary Manslaughter
 Girouard v. State (1991) – Rule of Provocation reduces murder to manslaughter if:
◦ Adequate provocation (reasonable man standard, not D's “peculiar frailties.”
◦ Heat of passion
◦ Sudden heat of passion with no cooling time
◦ Causal connection between the provocation, the passion, and the fatal act
Court finds provocation, but says it was inadequate to reduce second degree murder to
manslaughter. “Words alone are not adequate provocation.” Need “conduct indicating a present
intention and ability to cause the defendant bodily harm.”
◦ Brown v. U.S. (1990) – Provocation used to be evaluated by the court according to a
set of fixed categories. Now more often left to the jury, abandoning the rigid rules.
 Attorney General for Jersey v. Holley (2005) – Two elements to provocation:
◦ Subjective/factual: D was provoked into losing self-control.
◦ Objective/evaluative: was the provocation enough to make a reasonable man do as he
did?
“Reasonable man” has ordinary self-control for his age and sex, but other characteristics like D
as affect the level of provocation. Alcoholism not a factor to consider.
◦ Green v. Regina (1997) – Jury allowed to consider evidence of particular sensitivity
to sexual matters. “Reasonable homophobic man”?
◦ Regina v. Gibson (1986) – Reasonable Aboriginal man.
 People v. Cassassa (1980) – Extreme emotional disturbance: disturbance must factually
exist, and must have a “reasonable explanation or cause.” Court says the second factor is
objective: assess D's mental state and the circumstances as he understood them and
decide if he was reasonable. No requirement to mitigate, but an option to do so.
Involuntary Killings
 People v. Knoller (2007) – Dog attack case. Second-degree murder requires conscious
disregard of danger to life (not risk of injury). High probability of death objective, not
subjective. Subjective test is whether D acted with disregard for human life.
◦ For depraved-heart murder, most states require subjective knowledge of risk to life,
though a few accept that D should have been aware of the risk.
◦ MPC uses a recklessness standard. Intent to injure, a separate consideration st
common law, is one factor that may be considered for recklessness.
 State v. Williams (1971) – Baby dies through parental negligence. Ordinary negligence
enough to convict for manslaughter. Court was entitled to find negligence—affirmed.
Felony Murder
 People v. Fuller (1978) – D stole some tires, then fled police, causing a fatal accident.
Court reluctantly says felony murder applies, but notes that stealing tires is not dangerous
to human life and that the rule is too broad as it targets any accidental death during theft.
 People v. Howard (2005) – Reckless driving while fleeing police found not to be an
“inherently dangerous felony” as required for felony murder. Considered in the abstract
rather than as it occurred. Note that D can still be prosecuted for murder, but need to
prove it on the merits. Dissent hates judicially-defined felony murder. Second dissent
says the conduct was inherently dangerous.
◦ People v. Sanchez (2001) – Depraved-heart murder allows the inference that a person
killed with malice, while felony murder means D is deemed to have killed with
malice as a matter of law.
 People v. Smith (1984) – Merger rule: may not charge felony-murder when it is based on
a felony which is an integral part of the homicide. Child abuse was an “integral part of”
the homicide, so murder must be proven separately. Court says the goal of felony-murder
is not to deter the underlying felony, but rather to deter negligent killings in the process.
 Case of John Landis
 Case of Gerald Ung
  Misdemeanor manslaughter: criticized because it can be applied to conduct that does not
create a substantial risk of death. Abolished in the MPC and some states.
Unit 4: Rape
Force
 State v. Alston (1984) – State law requires either force or threats of serious bodily harm
inducing reasonable fear, overcoming the will of the victim. Battered woman who
submitted to sex out of fear without immediate force found not to have been raped.
 Rusk v. State (1979) – Law requires force or threats to safety. Court finds victim's fear of
harm if she didn't submit unreasonable. Dissent says courts conflate consent and force,
verbal resistance is resistance, giving up a wallet rather than sex would have been
robbery, danger to women if they resist physically.
 State v. Rusk (1981) – Reasonableness of victim's fear was a question of fact for the jury.
Conviction reaffirmed.
 State of New Jersey in the interest of M.T.S. (1992) – Court finds that sexual penetration
without consent is sufficient to satisfy the force element of second degree sexual assault.
Consider whether D acted with a reasonable belief that consent had been given.
Knowledge of Nonconsent; Fraud and Non-Physical Coercion
• Common law: rape was a general intent crime, meaning D would be acquitted if he had a
reasonable but mistaken belief that the victim consented.
◦ Regina v. Mrgan (1976) – The “kinky wife” case. Honest but unreasonable belief in
consent was a defense.
• Current law: one state requires intent to have nonconsensual sex, others range from
recklessness to strict liability.
• MPC 213.1

 Boro v. Superior Court (1985) – Man defrauds a woman into having sex with him. Fraud
in the factum (mistake as to the fact itself) vs. fraud in the inducement (deception not
about the thing done but some collateral matter). Court says this is fraud in the
inducement and does not void consent.
 Commonwealth v. Ascolillo (1989) – D argues that the state must show that he intended
sex without consent. No need to prove intent to rape or knowledge of nonconsent.
 Commonwealth v. Simcock (1991) – Appeal from a jury instruction that good faith
mistaken belief in consent is not a defense. Court sees some issues with the policy, but
says precedent compels it to uphold the instruction.
Capacity to Consent
 Commonwealth v. Blache (2008) – Complainant need not be unconscious in order to be
incapable of consent, but D must be aware of the incapacity because it negates the force
element. Dissent wants her blacked out before she is incapable of consent.
 State v. Scherzer (1997) – Retarded girl has unforced sex with classmates. Ruled
mentally defective: “incapable of understanding the nature of her conduct, including, but
not limited to, being incapable of providing consent.” Ds knew about her condition, so
aggravated sexual assault convictions upheld.
◦ Michael M. v. Superior Court of Sonoma County (1981) – Gendered statutory rape
laws upheld against equal protection challenge because of pregnancy risk.
Unit 5: Defenses
Intro to Defenses
• Defenses:
◦ Failure of proof – failure to prove some element of the crime (includes mistake, when
it negates mens rea)
◦ Offense modification – all elements of the offense are satisfied, but the action is
decriminalized. E.g., paying ransom to a kidnapper.
◦ Justification – otherwise criminal action taken in order to prevent a greater harm.
Must be necessary and proportional.
◦ Excuse – actor is not responsible for a wrongful deed.
◦ Exculpatory public policy – society decides to forego conviction. E.g., statute of
limitations.

 Patterson v. New York (1977) – Due process challenge to extreme emotional distress as
an affirmative defense. Court upholds the statute and says that the legislature could define
murder as it did and allow D to mitigate. Winship satisfied. Dissent says this gives
legislatures too much leeway to shift burdens.
Justification Defenses: Self-Defense
 U.S. v. Peterson (1973) – Dude gets a gun to deal with people stealing his windshield
wipers. Jury was reasonable to find that D was the aggressor. Duty to retreat, if he could
have done so safely, rejecting the castle doctrine.
◦ MPC 3.04
 State v. Norman (1988) – Battered woman syndrome and self-defense. Court says a jury
could find that an abused wife believed it was immediately necessary to kill her sleeping
husband in order to escape future harm.
 State v. Norman (1989) – Supreme court overturns, finding no reasonable fear of
imminent death or serious harm and citing concern over self-help.
◦ State v. Leidholm (1983) – Self-defense viewed from the point of view of the
defendant.
Defense of Others
• MPC 3.05
• Alter ego rule – minority rule that a person coming to the aid of another has no more right
to defend them than the person has to defend himself. E.g., can't claim defense of others
when unknowingly helping someone resist an undercover cop. Majority now asks only
for reasonable belief.
Necessity and Duress
 Nelson v. State (1979) – Elements of necessity:
◦ Done to prevent a significant evil
◦ No adequate alternative
◦ Harm caused not disproportionate to harm avoided
Reasonable belief in an emergency suffices, and harm weighed is what was reasonably
foreseeable. However, D had other options and caused more harm than necessary.
◦ MPC 3.02
 U.S. v. Contento-Pachon (1984) – Elements of duress:
◦ Immediate threat of death or serious bodily injury
 ◦ Well-grounded fear that the threat will be carried out
◦ No reasonable opportunity to escape
Court finds a triable issue of fact as to whether a drug smuggler was acting under duress.
◦ MPC 2.09
 The Queen v. Dudley and Stephens (1884) – Men stranded on a boat escape death by
killing and eating a boy. No necessity defense for killing an innocent person.
 Prosecutor v. Erdemovic – Court finds that duress, though genuine, is not a complete
defense to war crimes.
Voluntary Intoxication
 U.S. v. Veach (2006) – Voluntary intoxication not a defense to general intent crime of
assault and resisting arrest, but is a potential defense to specific intent crime of
threatening an officer with intent to impede if he was too drunk to form that intent.
◦ Montana v. Egelhoff (1996) – Montana law bars consideration of voluntary
intoxication for any crime. Court upheld it against a due process attack. No burden
shift, and state must still prove mens rea.
◦ MPC 2.08
Insanity
• Insanity law:
◦ Leland v. Oregon (1952) – Insanity is an affirmative defense, so burden of proof can
be on D.
◦ Most states required the prosecutor to carry the burden of proof until the 80s, when
furor over the insanity acquittal in the Reagan assassination attempt prompted change.
◦ MPC 4.08 on commitment of the insane.
◦ Jones v. U.S. (1979) – Once acquitted by reason of insanity, D can be
institutionalized on a preponderance of the evidence standard, rather than the usual
clear and convincing standard. Can be hospitalized as long as mentally ill and
dangerous.
◦ Sexual predator laws provide for long-term commitment of “sexually violent
predators” who are judged likely to reoffend due to mental abnormality.
▪ Kansas v. Hendricks (1997) – Upheld these laws.
▪ Kansas v. Crane (2002) – Need to show a difference between a predator who
lacks the ability to control behavior from a regular recidivist.
 State v. Johnson (1979) – Potential ways to evaluate insanity defenses:
◦ M'Naghten Rule – At the time of the act, D either did not know the “nature and
quality” of the act or did not know it was wrong.
◦ Irresistible Impulse or Control Test - “Complete destruction of the governing power
of the mind”!
◦ Product Test – Not responsible if the act was “the product of mental disease or
defect.”
◦ MPC Test – MPC 4.01. Because of mental disease or defect:
▪ Lacked substantial capacity to appreciate criminality [wrongfulness]
▪ Lacked substantial capacity to conform his conduct to the requirements of law.
 State v. Wilson (1997) – Rejects a purely personal standard of wrongfulness. D doesn't
appreciate wrongfulness if at the time of the act he harbored a delusional belief that
 society, under the circumstances as he understood them, would not condemn his actions.
D presented a jury issue as to whether society would agree if they knew what he believed.
 Case of Andrea Yates
 Case of John Charles Green

Unit 6: Inchoate Offenses and Accomplice Liability

Mens Rea and Actus Reus
• Attempt, MPC 5.01:
◦ Purposely engages in conduct that would be a crime if circumstances were as he
believes
◦ Does or omits something with the purpose or belief that it will cause a criminal result
with no further action
◦ Purposely does or omits something which, under the circumstances as he believes
them to be, constitutes a substantial step towards the crime
◦ Conduct to aid another is attempt even if the crime is not attempted
◦ Must renounce voluntarily and completely
◦ Grading and mitigation MPC 5.05. Generally the same as completed.
• Non-MPC:
◦ Often some provisions for specific attempts and nearly always a general attempt law.
◦ Rule of merger: can't convict of attempt and completed crime. All jurisdictions treat
attempt as a lesser included offense. Some say can be convicted of attempt if the state
proves the completed crime.
◦ Maximum punishment generally fixed lower than for completed crimes before MPC.

 People v. Gentry (1987) – Court says intent to kill necessary for attempt murder, unlike
completed murder. Knowledge and intent to cause body harm are not enough.
◦ Tracks with common law.
 U.S. v. Mandujano (1974) - “Mere preparation” not enough. Must commit some
“appreciable fragment” of the crime. This court says the crime must be in progress such
that it will be completed unless interrupted by independent circumstances.
◦ U.S. v. Oviedo (1976) – Objective acts must show criminal conduct, independent of
mens rea.
◦ Stokes v. State (1908) – Once intent is clear, slight acts will suffice for attempt.
◦ People v. Luna (2009) – Acts that would be insufficient if intent were not known may
be sufficient if intent is clearly shown.
 People v. Rizzo (1927) – D went looking for a person to rob, but because he was arrested
before he found him, the “danger of success” was not great, so there was no attempt.
 People v. Miller (1935) – D threatened a guy, walked toward him with a loaded gun, then
handed the gun to a third party after the intended victim fled. Courts rules that this is not
unequivocal action towards murder and does not constitute an attempt.
◦ This is apparently not commonly followed.
 State v. Reeves (1996) – Girls plot to kill their homeroom teacher. Court applies a
“substantial step” test, abandoning the Dupuy rule requiring a narrowly interpreted “overt
act” in favor of a more MPC-like approach which allows for possession of materials at
the scene of the crime with no lawful purpose as part of attempt.
Impossibility and Abandonment
 People v. Thousand (2001) – Child predator sting. Court distinguishes:
◦ Legal impossibility – Two kinds:
▪ Pure: D thinks conduct is illegal but it is not. No crime.
▪ Hybrid: D's goal was illegal, but commission was impossible due to a mistake
about the legal status of some factor. May be characterized as factual.
◦ Factual impossibility – D's intended end constitutes a crime, but he fails to
consummate it because of circumstances beyond his control. Not a defense.
Court says many states have abolished the distinction. Because D was charged with attempt,
impossibility is not a defense.
 Commonwealth v. McCloskey (1975) – Defendant decided not to break out of prison.
Court says that because he had not left the prison when he stopped, no attempt.
Conspiracy
 People v. Carter (1982) - “The gist of conspiracy lies in the unlawful agreement.” No
need for overt acts as long as there is intent to combine and intent to accomplish an
illegal objective. No merger.
 Pinkerton v. U.S. (1946) – Once conspiracy is proven, court holds that a conspirator can
be held liable for the illegal acts of his co-conspirator as long as they were done in
furtherance of the conspiracy, reasonably foreseeable. Dissent dislikes vicarious liability.
◦ MPC 2.06 rejects Pinkerton.
 People v. Lauria (1967) – Need intent for conspiracy. Can be inferred from knowledge:
◦ When the purveyor of legal goods for illegal use has a stake in the venture
◦ When no legitimate use for the good or service exists
◦ Where the volume of business is disproportionate to the legal demand, or where sales
for illegal use are a high proportion of the seller's total business
Also liability for knowledge if the crime is very serious. But here, no stake, and not so severe as
to show conspiracy.
◦ Kotteakos v. U.S. (1946) – One guy conspired with various groups, but the groups did
not know about each other. No “wheel conspiracy,” just a hub with spokes—eight
separate conspiracies.
 People v. Sconce (1991) – Guy conspires to have someone killed, then calls it off. Under
state law, he can withdraw only if he completely withdraws and informs his co-
conspirators before the commission of an overt act. Here, an overt act had occurred, so
the conspiracy is complete. All he has avoided is liability for any subsequent acts.
Accomplice Liability
 State v. Hoselton (1988) – Serving as a lookout would have satisfied aiding and abetting,
but D did not really serve as a lookout and was merely present. No liability.
◦ U.S. v. Peoni (1938) – Required purposeful conduct to assist or support.
◦ Backun v. U.S. (1940) – Not a question of having a stake in the crime. People who
profit by furnishing supplies benefit as if they did have a stake.
 State v. Linscott (1987) – Accomplice liability for an unexpected murder committed in
the course of a planned robbery. Intended the primary crime and the secondary crime was
a foreseeable consequence.
◦ MPC 2.06
 Case of Larry Eugene Phillips
  State v. V.T. (2000) – Mere presence, or even continued presence, during commission of
a crime, does not establish accomplice liability. Must at least encourage.
◦ Most courts do not require causation (p. 876), but do require some actual aid.
 Wilcox v. Jeffery (1951) – Jazz reporter pays to watch a dude play sax without
permission. Conviction for aiding and abetting upheld because he encouraged and
profited from the illegal concert by writing about it.
 People v. Genoa (1991) – D lent money to an undercover cop who said he would buy
coke to sell. However, because the cop did not buy the coke, there was no underlying
offense. Thus, D gave aid and had requisite intent, but did not commit a crime.
 State v. Formella (2008) – D argues that he withdrew from a plan to steal math exams
before it was complete. Court says that to withdraw, he needed to do an affirmative act to
withdraw and deprive his assistance of effectiveness. Silent withdrawal insufficient.

Unit 7: Sentencing
◦ Weems v. U.S. (1892) – Eighth Amendment directed against all punishments whose
length or severity is greatly disproportionate to the offense charged.
 Coker v. Georgia (1977) – Disproportionate and therefore cruel and unusual to punish
aggravated rape of an adult woman by death.
 Ewing v. California (2003) – Three strikes policy. Differentiates between life without
parole and with possibility of parole and rules the latter constitutional in the context of
his repeat offender status. Reasonable basis test for noncapital sentences.
◦ 18 U.S.C. § 3553 for sentencing criteria.
◦ Apprendi v. New Jersey (2000) – Unconstitutional to increase a hate crimes penalty
based on finding bias by preponderance of the evidence.
 Blakely v. Washington (2004) - “Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” “The judge's authority to
sentence derives wholly from the jury's verdict.”
 U.S. v. Booker (2005) – Extended Blakely to the federal system and rendered the Federal
Sentencing Guidelines merely advisory. Real-offense sentencing more important than
mandatory sentencing.
◦ State law: some states have followed Booker, some already had advisory schemes,
and some have integrated juries into factfinding for aggravating factors in sentencing.