Classes 1-2

1. Character of Criminal Law

Who defines crimes?

• Legislatures (enact statutes)
• Judges (rule in cases that create precedent)

I. Theories of Punishment (What Justifies Criminal Law & Punishment?)

Retributivism
• Theory that claims that criminal punishment is justified, at least in part, b/c the
person who is punished deserves to be punished for his/her wrongdoing.

Consequentialism
1. Deterrence: criminal law and punishment are justified in virtue of their
ability to deter from committing criminal offenses
• Economic: social costs and benefits: crime is socially destructive and
socially destructive behavior is best reduced by raising the price those who
engage in such behavior must pay
a. General Deterrence: The view that criminal law and punishment are justified in
virtue of their ability to deter other people (people in the community,
generally) from committing criminal offenses.
b. Specific Deterrence: The view that criminal punishment of a particular D is
justified in virtue of its ability to deter that particular defendant from re-
offending.

2. Rehabilitation
• We use punishment to treat not punish offenders, so they can do not
reoffend after they are released

I. Principles of Statutory Interpretation Ch2(B)

• Basics of Statutory interpretation
o Look at language of statute itself and its ordinary meaning–(and/or)
o If unclear, look at legislative history (official records of proceedings related to bill,
earlier drafted, report of conference committee)
o Structural evidence: Examine more broadly overall statutory framework within
which statute of Q resides – where it fits and how interpreted
o Apply rules of construction developed by judges
A. Role of Courts and Legislatures in Defining Crimes
Regina v. Dudley & Stephens
• Court focused on the letter of the law and sentenced Ds to execution → Ds
murdered Parker which is a wrong so they should be punished
o No greater necessity to kill Parker than anyone else
• Queen granted mercy → shows how discretion pervades the process

People v. Kellogg
• D argues that it violates 8th amendment (cruel & unusual punishment) to convict
him b/c he involuntarily violates the public intoxication law b/c he is an alcohol
addict
• Court rules that his conviction does not violate the 8th amendment b/c D is
arrested for his conduct, not b/c he is an addict
• Court says that D’s culpability is low b/c of impairment, but sanctions imposed on
him are also low

Classifications of crimes:
• Mala in se- know these are bad b/c they line up w/ societal rules about what is bad
• Mala prohibita- we choose to prohibit it (bad b/c we say it’s bad)
• **We can criminalize both of these, but we think about them differently

B. Beyond a Reasonable Doubt

• Person charged w/ a crime is presumed innocent. Prosecution must prove every element
of an offense beyond a reasonable doubt
• Supreme Court has not ruled on what is enough to constitute “beyond a reasonable
doubt”

C. Proportionality and Vagueness

Proportionality
• Correspondence between severity of crime and severity of punishment
• Court held that death penalty is disproportionate when:
o D commits Rape
o D doesn’t kill or exhibit extreme recklessness in felony murder cases
o D is intellectually disabled
o D is a minor
• Court does not have to require proportionality in non-capital cases:
o In non-capital cases, only extreme sentences that are grossly disproportionate to
the crime are forbidden

Vagueness
• Void-for-vagueness doctrine (from Due Process Clause) requires both:
o Crimes to be precisely defined so that people know how to avoid criminal
punishment
 o Crimes should be defined so that the statute doesn’t allow arbitrary and
discriminatory enforcement
• Excuses Ds from criminal liability if the crime is so vaguely defined that people of
common intelligence must necessarily guess at its meaning
• Invalidates a criminal law if either:
o Crime fails to provide the kind of notice that enables ordinary people to
understand what conduct it prohibits
o Crime authorizes and encourages arbitrary and discriminatory enforcement

Nash v. United States

• Nash argued that he didn’t know he violated the Sherman Act b/c statute was too
vague
• Court ruled that Nash could not be surprised that the attempt to rig the market
would be deemed a “conspiracy in restraint of trade”
• “Man’s fate depends on his estimating rightly. If his judgment is wrong, he
can get a fine or prison time”
• “Punishment doesn’t depend on if you don’t intend or foresee the
consequences”

Gray v. Kohl
• Gray distributed Bibles on a public sidewalk in a school safety zone and were
charged w/ violating the School Safety Zone Statute
• Gray argued that the statute was too vague
• Statute is unconstitutionally vague when it:
o Fails to provide notice as to what conduct is prohibited
o Authorizes or encourages arbitrary and discriminate enforcement

D. Crime and Criminal Law

• Link between criminal law and behavior is not clear (sometimes criminal law shifts social
norms, but sometimes it doesn’t)
• Likelihood of punishment affects the level of deterrence much more than the amount of
punishment
 Classes 3-4

Defining Criminal Conduct

Definition of crime:
• 1. Any combination of:
o Conduct (act or omission) AND
o Intent (mens rea)
• 2. That violates a criminal statute
• 3. As enforced by a prosecutor and interpreted by a court

A. Voluntary Acts that Cause Harm

1. Voluntary Acts
Martin v. State
• D was drunk in his home and police arrest him and took him to a public
highway, then charged him w/ public drunkenness
• Court held that D couldn’t be charged b/c he was involuntarily taken to the
highway
•
2. Causing Harm
• Most criminal statutes do not require proof that D caused anything. They require
proof of a specific conduct and of a particular mental state

• Actus Reus: The 4 C’s

o Conduct (act or omission)
o Circumstance
o Consequence (result) (w/ homicide result is dead body).
o Causation

***EXAM: Remember to address Actus Reus (go through 4C’s), Mens rea, AND defenses.

B. Interpreting Conduct Terms in Criminal Statutes

1. Greater and Lesser Crimes

In re Joseph G.
• D drove himself and friend off of a cliff. D survived, but friend died.
• Court deciding if it is murder or assisting suicide (*Difference is important
b/c of the punishment)
• Judge decides not to use the active/passive distinction (if D actively
participates in death of suicide victim, then murder; if D only
provides the means for suicide, then assisted suicide)
 People v. Cleaves
• Friend tells D that he wants to die. D played an active role in friend’s
suicide.
• D was charged w/ murder; argues that the jury should have been instructed
on the lesser related offense of aiding and abetting a suicide
• If there are facts that support the lesser related offense, then D is
entitled to jury instruction on those facts
• Court rules that there are no facts that would support the instruction for the
lesser related offense

2. The Not-Quite-Rule of Lenity

Rule of Lenity
• Rule in favor of D only when you cannot figure out what the legislator meant
(*Rarely used)
• Just b/c statute is ambiguous doesn’t mean that rule of lenity should be used
(most statutes are ambiguous)
o Only applies to a grievous ambiguity or uncertainty in the statute
• 3 meanings of Lenity
o 1. Lenity is only used when other interpretations yield a tie
o 2. Lenity limits broad readings that are not supported by the text
o 3. Lenity confines the reach of the statute even when text supports a
broader view
3. Defining Criminal Intent
• Courts want Ds to be criminally responsible if they did something wrong (actus reus) and
if they had a guilty mind (mens rea)
• General intent- D intended to do the act that constitutes the crime (intent to carry
out one’s physical actions) (not necessary to have an intent to violate the law)
o **Don’t have to intend for the result. Just have to intend the conduct
o *Plus factors (criminal negligence and malice) allow judges some flexibility in
order to achieve justice. It is designed to require more from the govt. w/out going
as far as specific intent
• Specific intent- D intended to do some further act or achieve some additional
consequence
o Intended to do the act AND intended to bring about some harmful or legally
forbidden result
o Requires that D’s conduct AND results be intentional
• Joyriding vs. theft
o Theft→ intending to deprive owner of their property permanently. Specific intent
crime b/c more morally reprehensible b/c intending to deprive owner
o Joyriding→ NOT intending to deprive owner of their property permanently.
General intent crime b/c less morally reprehensible b/c you didn’t intend to
deprive owner

A. Voluntary Acts that Cause Harm

1. General Intent
People v. Stark
• D charged w/ co-mingling client funds (using funds from one
project for other projects)
• D argues that statute he was charged w/ was a specific intent
crime, but jury was told it only required general intent
• ***When a statute only describes the act w/out referencing an
intent to do a further act or achieve a future consequence, then
it is general intent. When a statute references an intent to do
some further act or achieve some additional consequence, then
it’s specific intent. ***

Plus Factors:
• *Malice- committing the act, while knowing it to be wrong,
w/out just cause or excuse
• *Criminal negligence- aggravated, culpable, gross, or reckless,
that is such a departure from what would be the conduct of an
ordinarily prudent or careful person under the same
circumstances
In re V.V.
• Ds firecracker caused a brush fire
• Statute requires that the D willfully and maliciously set the fire
• Malice defined in 2 ways:
o Malice in fact- ill will, a wish to vex, defraud, annoy, or
injure another person
o Malice in law (implied/presumed malice)- a wrongful act,
done intentionally w/out just cause or excuse
• A general intent crime doesn’t become a specific intent crime
just b/c it requires malice
o Malice is viewed as a plus factor
• If D does something reckless, but there is a justification/excuse,
then it is not malicious
• In this case, it was malicious b/c D intentionally ignited and threw
firecracker, and did not have a justification/excuse to throw it
2. Specific Intent

State v. Schminkey
• D was drinking at a bar and took someone’s car w/out permission
and hit two cars (killing one of the drivers)
• In order to determine if D intended to permanently deprive owner
of the car (specific intent b/c intended to do some further act or
achieve some additional consequence), court looks at:
o Inferences
o Circumstantial evidence (facts)
• Court finds that there is not enough evidence to prove that D
intended to permanently deprive owner of the car. So D is only
guilty of lesser offense of operating a motor vehicle w/out owner’s
consent
• Intoxication is not a defense for general intent crimes b/c it
doesn’t affect the mens rea. It could be a defense for specific
intent crimes b/c D was so drunk that he could not form the
necessary mental state (mens rea).

State v. Morris
• D stole a car. When police found D, he abandoned the car. D
charged w/ theft
• Court held that just b/c D took car w/out owner’s consent, it does
not give rise to an inference that he intended to permanently
deprive the owner of the car
• When D saw police, he abandoned vehicle and fled, which is an act
that would ordinarily assure that the car would be returned to its
owner (court uses this inference in its decision)

3. Mistakes of Fact
• Mistake Doctrine allows for mistakes as for the relevant circumstances
that played a role (ex: did ex-wife ever really finalize the divorce even
though she said she did)
• Tries to strike a balance between interpretation where mistakes don’t
matter and a situation where it’s too easy for D to excuse conduct by
saying “I didn’t know”
• In order to evaluate honesty and reasonableness, court relies on:
o Inferences
o Surrounding clues

Requirements for mistake of fact defense:

• General intent offense requires an honest and reasonable mistake
o B/c it’s easier for govt. to prove general intent, it is hard for D to
demonstrate an honest and reasonable mistake
• Specific intent offense requires an honest mistake
 o B/c it’s harder for govt. to prove specific intent, it is easy for D to
demonstrate an honest mistake

United States v. Oglivie

• D got remarried and was charged w/ bigamy and making false
official statements
• Court held that making false official statements was a specific
intent crime so an honest mistake of fact is a defense
• Court held that bigamy was a general intent crime so mistake
had to be honest and reasonable

United States v. Binegar

• D was instructed by superiors to give everyone free contact lenses
even if not medically required
• Court erred by giving honest and reasonable mistake of fact
instruction. D was materially prejudiced.
• Theft is a specific intent crime (intent to permanently deprive
the govt. of the contact lenses) so an honest mistake is a defense
o Court should have been given an honest mistake of fact
instruction

4. Mistake of Law
• Mistake of law defense is rarely accepted in order to prevent Ds from
manipulating the system

People v. Marrero
• D thought he was allowed to carry a gun w/out a permit b/c he is a
penal officer. D was arrested.
• D misunderstood the law as to if he constitutes a penal officer. D
honestly believed he was complying w/ the law
• Court held D guilty of carrying a gun. His misunderstanding of the
law is not an acceptable mistake of law
o Ignorance of the law is no excuse
Darab v. United States
• Security told everyone to leave the mosque
• D stayed b/c they believed they had the right to remain in the
mosque b/c no one had the authority to interfere w/ a religious
service
o Muslims believe that no one can claim ownership over a
mosque b/c God owns it
• Court rules that Ds are guilty b/c they should have left when they
were asked. It doesn’t matter if Ds thought they had a moral right
to be there
• Court held that believing one’s conduct is not wrongful
(morally or religiously) is no defense if one’s conduct, in fact,
violates a law
 State v. Varszegi
• Tenant failed to pay rent so D picked lock and went into tenant’s
office and took computer and printer
o D claimed it was legal to do this b/c it was in lease
agreement
• Court ruled that D was not guilty of larceny
• Court held that taking under a bona fide right of claim is not
larceny b/c D lacks the felonious intent to steal
• Court looks at circumstances and makes inferences:
o D admitted he took tenant’s computers b/c of the lease
o D never wavered from his contention that his actions were
lawful

5. Strict Liability
• Does not require possession of a “guilty mind” (mens rea)
• Gives prosecutor more proof when it might be otherwise difficult to prove
• Used in relation to public welfare offenses. Courts don’t usually use strict
liability.

State v. Loge
• Police found an empty beer bottle in D’s car and gave D a citation
for a violation of the open bottle statute
• D argued that he didn’t know the empty beer can was in the car
• Court held that it is a strict liability offense so it doesn’t matter
that D didn’t know the beer bottle was in the car
o State does not need to prove that the driver of the car knew
of the existence of the open bottle in the car

State v. T.R.D
• D was required to return address verification letters every 90 days
b/c he’s a sexual offender
• D was arrested for failure to comply w/ these registration
requirements
• Court held that failure to register is a strict liability offense b/c it
did not require an element of intent
• Urgent public interest in protecting the community’s welfare may
require the prohibition or punishment of certain acts (public
welfare offenses deal w/ strict liability)
B. The Model Penal Code Culpability Structure
• A person is not guilty of an offense unless he acted purposely, knowingly,
recklessly, or negligently w/ respect to each material element of the offense
o Principle of correspondence → every material element of the offense
(actus reus elements/guilty acts) must correspond to either purposely,
knowingly, recklessly, or negligently
• MPC focuses on individual elements of the offense
• Relevant state of mind is at the time of the conduct constituting the offense
• **No strict liability under the MPC

Model Penal Code §2.02(2): General Requirements of Culpability

• Purposely
o If the element involves the nature of his conduct or a result of it,
then it is his conscious object to engage in conduct of that
nature or to cause such a result AND
o If the element involves the attendant circumstances, he is aware of
the existence of such circumstances or he believes or hopes that
they exist
• Knowingly
o If the element involves the nature of his conduct or the attendant
circumstances, he is aware that his conduct is of that nature or
that such circumstances exist AND
o If the element involves a result of his conduct, he is aware that it
is practically certain that his conduct will cause such a result
• Recklessly
o When he consciously disregards a substantial and unjustifiable
risk that the material element exists or will result from his conduct
o Risk must be of such a nature and degree that to disregard it
involves a gross deviation from the standard of conduct of a
reasonable person in the actor’s situation
o KEY FACTOR: awareness of risk
• Negligently
o When he should be aware of a substantial and unjustifiable risk
that the material element exists or will result from his conduct
o Risk must be of such a nature and degree that the actor’s failure
to perceive it involves a gross deviation from the standard of
care that a reasonable person would observe in the actor’s
situation
o KEY FACTOR: lack of awareness of risk

MPC 2.02(3): If statute does not state a culpability, then recklessness is the
default

MPC 2.02(4): Principle of correspondence→ every actus reus element requires a

corresponding mens rea element (P, K, R, N). If only one mens rea element is
provided, apply it across all elements
MPC 2.02(5): If you satisfy purposely, then you have also satisfied knowingly,
recklessly, and negligently even if you aren’t able to prove all of those

MPC 2.02(6): requirement of purpose is satisfied even if purpose is conditional

MPC 2.02(7): requirement of knowledge is satisfied by knowledge of a high

probability. Awareness of a “high probability of its existence, unless he actually
believes that it does not exist.”
• Ostrich instruction → prevents people from being willfully blind to
something

MPC 2.02(8): If statute uses “willfully,” then assume it means “knowingly.”

MPC 2.02(9): Ignorance of law is no defense

**Mistake can be a defense if it “negatives the purpose, knowledge, reckless,

or negligence required to establish a material element of the offense.”
However, ignorance of the law is not an excuse MPC 2.04(1)(a)

MPC Analytic Structure (decisional process for assessing criminal liability):

• 1. Does actor’s conduct constitute a crime?
• 2. Even if actor’s conduct constitutes a crime, are there special reasons
why that conduct ought not to be considered wrongful in this instance,
under these facts?
o Are there any justification defenses?
• 3. Even if actor’s conduct is a crime and is wrongful, should the actor be
held blameworthy for it? Is actor deserving of criminal liability and
punishment?
 Classes 9-10

Property Crimes
1. Robbery

Robbery:
• (1) Taking and
• (2) Carrying away
• (3) the property of another
• (4) AND doing that through the use of force or threat of force against
a person
• **Taking must be trespassory
• **Specific intent crime (specific intent to permanently deprive the
possessor of the property)

State v. Keeton
• D grabbed the $20 bills from register
• Store clerk tried to grab the money from D. Their hands touched,
then D backed away and extended his arm
• Force element of the robbery was assault.
o It was not a clearly threatening gesture, but still
satisfied assault
• Court held that the intent required by the statute can be inferred
from the circumstances and actions of D

Carter v. United States

• D had a ski mask on and jumped through teller window and took
$16,000 in cash
• D pushed a customer who was leaving the bank
• Court held that pushing the woman back into the bank was
enough to constitute force

2. Burglary

Burglary:
• (1) Breaking and
• (2) Entering
• (3) the dwelling house
• (4) of another
• (5) at night
• (6) with the intent to commit a felony therein
• **Do not have to prove that larceny or robbery took place
• **Specific intent crime b/c must prove that D intended to achieve a future
goal (commit a felony) once inside the dwelling
 • **D is still guilty of burglary if he changes his mind while inside dwelling
and decides not to commit the felony. Burglary was committed when he
entered the dwelling w/ the intent to commit a felony
o D must have the intent to commit the felony at the time of
entry into the dwelling
• **Policy: burglarizing a home is often punished more severely than other
places b/c trying to protect people

People v. Sparks
• D goes to a woman’s house to sell magazines
• D follows woman into her bedroom and rapes her
• Court held that D could still be charged w/ burglary even
though he didn’t enter the house w/ the intent to commit a
felony b/c D entered the bedroom w/ a felonious intent

3. Larceny and Embezzlement

Larceny:
• (1) Trespassory taking (obtaining control over property w/out the
owner’s consent) AND
• (2) Carrying away
• (3) the property of another
• (4) with the intent to deprive the owner of that property permanently
• **(4) is the mens rea element
• **Taking away property that is not entrusted to them

Elements defined:
• (1) Trespassory- person in possession of property didn’t consent to the
taking
• Taking- obtaining control over the property
• (2) Carrying away (asportation)- there must be some movement of the
property. It doesn’t have to move far (even a small movement will
suffice). When you move it in such a way that you have control over it
• (3) Property of another- any personal property except real estate, services,
and information
• (4) Intent to deprive the owner of the property permanently- D intends to
keep the property or at least not return it to the owner
o 3 cases where intent to permanently deprive is satisfied even if D
intended to return the property:
▪ 1. When D’s taking deprives the property of all of its value
▪ 2. When D creates a substantial risk of loss of the property
▪ 3. When D offers to sell or return property to victim w/
conditions attached
***Claim of right → D takes property belonging to someone else based on a
good faith belief that he has a right to possess the property or takes the
property based on a good faith belief that he has a right to collect a debt.
▪ D can get off the hook for this case even if his belief is unreasonable. Only
thing the court looks at is if D’s belief was honestly held (held in good
faith)

Larceny by trick:
• Taking appears to be consensual, but consent was induced by a trick that
D played on the victim
• Using fraud to gain possession of the property

Embezzlement:
• (1) Fraudulent
• (2) Conversion
• (3) Of another’s property
• (4) By a person in lawful possession of that property
• **Guilty of keeping property that was entrusted to them
• **Mens rea:
o Intent to defraud
o Intent to permanently deprive

State v. Moon
• D used fraternity’s money to renovate his house w/out permission
• D was charged w/ theft by embezzlement
• Court held that D is guilty if he uses the property in such a way
that it would likely not be returnable regardless of intent to
deprive fraternity permanently

4. Mistake and Abandonment

Must look at:

• 1. Possessory interest of the owner at the time the property is discovered
• 2. Finder’s state of mind when he originally takes possession of the
property

Abandoned Property
• If owner wants to discard the property, then it is abandoned
• Can you keep abandoned property?- Yes, b/c nobody has title to it
• Abandoned property cannot be the subject of larceny
• If D thinks its abandoned property (but it’s really not), then look to mens
rea:
o If D honestly believes that the property was abandoned, then
specific intent to permanently deprive is negated
Lost Property
• If owner involuntarily through carelessness, accident, negligence, etc.
left the property somewhere, then it is lost b/c owner had no intent to
part w/ ownership of the property
• Does taking lost property constitute larceny?- Yes, if D had an intent to
steal AND a clue as to the identity of the owner
• If D finds property that might be lost, must ask if there is any “reasonable
clue” that would help identify/locate the owner
o If there is a “reasonable clue,” then D must try to identify the
owner and return the property
• If D takes property w/ the honest belief that it was lost and honestly
believes that there is no reasonable clue as to how to find the owner,
then mens rea is negated

Mislaid Property
• If owner voluntarily and intentionally left property for a temporary
purpose, then it is mislaid
• Does taking mislaid property constitute larceny?- Yes, b/c owner has not
intended to give up title and may come back to retrieve property
o **Mislaid property can be the subject of larceny even w/out a
clue as to the identity of the owner
• Owner remains in constructive possession of property
• **D more likely to be found guilty of larceny when property is mislaid
rather than lost

United States v. Coffmann

• D found an open box w/ gear in it. After asking everyone if it was
theirs, D kept it for himself
• Judge didn’t explain mistake of fact defense that D could have
used
o D could have claimed mistake of fact. Since it was an
honest mistake, it would negate his intent

Simms v. District of Columbia

• Police caught D trying to tow a car
• D thought the car was abandoned (mistake of fact) b/c it was in the
same place for 3-4 weeks, windows were busted, and it had no
wheels
• Court held that abandonment cannot be presumed merely b/c of
location and condition of car
Homicide Crimes
5 Degrees of Homicides:

1st Degree Murder (punished most harshly)

• Premeditated killing (rational rather than impulsive decision to kill) (some degree of
advance planning)
• Embodies an idea of rational thought even though it can happen in an instant
• Trying to distinguish it from something more impulsive

2nd Degree Murder

• No premeditated intent to kill. It was impulsive
• Homicide committed w/ one of several mental states (“malice aforethought”) that fall
short of premeditated intent to kill:
o Intent to kill that is not premeditated (i.e. impulsive rather than rational intent)
o Intent to cause serious (likely to be lethal) bodily injury
o Extreme recklessness (acting w/ a “depraved heart,” an “abandoned and
malignant heart,” or “depraved indifference to human life”)

Voluntary Manslaughter
• Intentional killing done in the heat of passion due to an event that the law considers
“adequate provocation” or “extreme mental or emotional disturbance” (MPC) for
which there is reasonable explanation or excuse
• Some justification based on the mental state
o Heat of passion is a type of adequate provocation. It is something where society is
willing to accept that people will lose it under these circumstances
• Provocation and extreme mental or emotional disturbance combine 2 different concepts:
o Homicides are less blameworthy:
▪ 1. When they are the product of intense passion that leads D to act out
of character; and
▪ 2. When they are prompted by the victim’s aggression or wrongdoing

Involuntary Manslaughter
• Homicide committed w/ ordinary recklessness, but not w/ malice or depravity
o Recklessness- consciously disregarding a substantial and unjustifiable risk
• Typically something that is not intentional (not purposely or knowingly done)

Negligent Homicide (punished least harshly)

• Homicide committed w/ criminal negligence
o Negligence- a reasonable person would have known about the risk
o Many jurisdictions either have a negligent homicide offense or collapse it with
involuntary manslaughter
Moral luck:
• 2 people driving same unlawful speed under same conditions:
o 1 hits a kid and is guilty of involuntary manslaughter
o The other hits no one and is guilty of a highway code violation
• ***The only difference between their conduct is the consequence. The difference in
consequence accounts for the severity of the punishment deemed appropriate for the D’s
behavior

Voluntary Act Requirement:

• General rule is there is no criminal liability unless the D performs voluntary act:
o No liability for reflex or convulsion
o No liability for unconscious movement or while sleeping
o No liability for actions while hypnotized

Omissions Liability
• Exceptions to the general rule: criminal liability can arise even if D does not perform a
voluntary act if D has a duty to act:
o Duty based on close personal relationship (ex: parent/child)
o Duty imposed by statute (ex: tax statute)
o Duty imposed by contract (ex: lifeguard)
o Duty based on voluntary assumption of care
▪ Once you’ve assumed that responsibility, you need to see it through b/c
you are dissuading others from stopping and helping
o Duty based on creating peril

A. Criminal Conduct

1. Causing Death

Kuntz v. Thirteenth Judicial District Court

o D and partner lived together for 6 years and therefore, owed each
other the “personal relationship” duty
o D created the partner’s peril
• Law doesn’t require a person, who justifiably uses force against
aggressor, to assist the aggressor in any way that would create the risk
of bodily injury or death to herself or others.
o This duty can be revived after victim has fully exercised their
right to seek and secure safety from personal harm. Then a
legal duty is imposed to summon aid for the person placed in peril
by an act of self-defense
• Look at time zone → ask what actually was going on as D was doing or
not doing the events (not seeking medical help). At a certain point V has
an obligation again, even though V didn’t have one before
Causation
• “But-for” causation → “but-for D’s conduct, would the consequence have occurred?”
o If the answer is “no, the consequence would not have occurred but-for D’s
conduct,” then D is a “but-for” cause of the consequence
▪ The main problem w/ “but-for” causation is overinclusiveness (infinite
regress) → but-for the bad guy’s parents giving birth to him, then the
victim wouldn’t have died
▪ Other problem is underinclusiveness (concurrent causes)
• Proximate Causation
o Should D’s conduct be deemed the cause of the consequence?
o 1. Was D’s conduct a direct and substantial cause of the consequence?
▪ “You take your victim as you find him” (Eggshell skull doctrine)
o 2. If yes, then was there any “intervening cause” which “broke the chain of
causation”?
▪ If not, then D’s conduct will be deemed the proximate cause of the
consequence

Breaking the Chain of Causation

• One test: “was the intervening cause unforeseen and unforeseeable?”
o Paradigm case of breaking the chain of causation → 3rd party bad actor
o Acts of God may break chain of causation depending on how unforeseeable they
are (lightning strike)
o Medical negligence typically won’t break chain of causation (unless it is so
egregious that it would likely count as criminal negligence)
o Acts by the victim typically won’t break chain of causation (refusal of medical
treatment)
o ***Things that break the chain of causation are called superseding causes

Commonwealth v. Carlson
• D failed to stop and crashed into victim’s car
• Victim survived accident, but kept alive w/ breathing tube. Against
doctors advice, victim refused to have breathing tubes and died
• Question becomes if D is a proximate cause of the victim’s death
notwithstanding the victim removing the breathing tube
• Court held that D was the proximate cause of victim’s death b/c you take
your victim as you find them (doesn’t matter that the same injuries
would have been minor if inflicted on healthy, young person)
o D’s negligent failure to stop set in motion a chain of events that
resulted in the victim’s death
o Victim’s decision to be removed from life support was not an
independent occurrence. It was the final step in the continuous
sequence of events that began w/ the D’s negligent operation of
a car
• Intervening conduct of a 3rd party will relieve a D of culpability only if
such an intervening response was not reasonably foreseeable
 o Common knowledge that patients will refuse consent to such
procedures as life support (so it was reasonably foreseeable)

When does victim’s conduct break the chain of causation?

• If victim’s response to the circumstance that D created are both extraordinary and
sufficiently abnormal, it may break the chain of causation
• But, otherwise, victim’s response to D’s conduct will not typically be deemed to break
the chain of causation

***Just b/c D is the proximate cause of harm to the victim does not meant that D is
criminally liable for any offense
• Causation is an element of actus reus, but the prosecution must still prove mens rea

Robertson v. Commonwealth
• D was running from police on foot. D vaulted over barrier. Police chased
after him and vaulted over barrier and fell into water and died
• D charged w/ second-degree manslaughter for officer’s death
• Question is if the D’s conduct is the proximate cause of the officer’s
death?
o Reasoning focuses on what the D knew or should have known w/
respect to the probable consequences of his conduct
▪ D knew that the officer would be required to cross the open
space between the barriers and risk falling to his death in
order to pursue the D
▪ Victim’s conduct was reasonably foreseeable b/c he was
chasing D. So, D knew or should have known that the
officer’s death was substantially more probable by his
conduct
B. Criminal Intent

1. Premeditation and Deliberation

Commonwealth v. Coleman
• D was involved in fight and shot victim. Victim died
• D charged w/ first-degree murder on a theory of deliberate premeditation
• Govt must prove that D “reflected on his resolution to kill, and that the
decision to kill was the product of cool reflection”
o Cool reflection requires that the purpose be resolved upon and
the mind determined to do it before the blow is struck
o Must have time to reflect on the action and then decide to do it
• No particular period of reflection is required (plan to murder may be
formed in seconds).
o It is possible to premeditate in an instant (it’s about the quality
of the thought, not the duration)
o Can’t say that time doesn’t matter at all
• Must have time to reflect on the action
 • Here, court uses the time in between (when he went to car and got gun)

***Distinguishing between 1st Degree and 2nd Degree Murder

• 1st Degree Murder- “calculated and planned killings”
o If you can say it was calculated and planned (it can happen very quickly), but
there must be cool reflection
• 2 Degree Murder- “unplanned or impulsive, even though they are intentional and
nd

w/ malice aforethought”

Transferred Intent
• D’s intent to kill one victim (who survived) transfers to the other victim (who died),
and the D is guilty of premeditated first-degree murder. May also be guilty of
attempted murder for the failed try

2. “Malice Aforethought”
• 2nd Degree Murder
• Three forms of malice:
o 1. Intent to kill (w/out premeditation) (“express malice”)
o 2. Intent to cause serious bodily injury (“implied malice”)
o 3. Killing w/ “depraved heart” (abandoned and malignant heart;
depraved indifference) (“implied malice”)

State v. Porter
• D got into fight outside the bar. D punched victim (who fell). Then hit him
more as he laid on the ground. Victim died
• D charged w/ second-degree murder
• Malice can be express or implied:
o Express malice- deliberate intention to unlawfully kill a human
being
o Implied malice- killing resulted from an intentional act, the natural
consequences of the act are dangerous to human life, and the act
was deliberately performed w/ knowledge of the danger to, and w/
conscious disregard for, human life
• Malice is implied when:
o 1. The killing resulted from an intentional act
o 2. The natural consequences of the act are dangerous to human life,
AND
o 3. The act was deliberately performed w/ knowledge of the danger
to, and w/ conscious disregard for human life
• Malice aforethought includes: intent to kill, depraved heart, abandoned
and malignant heart, depraved indifference, intent to commit serious
bodily injury
• Common law allows for more flexibility to help pursue justice
o Making these distinguishing judgments is not going to be the
same from case to case and court to court
Malice Aforethought”
• 2nd Degree Murder
• Three forms of malice:
o 1. Intent to kill (w/out premeditation) (“express malice”)
o 2. Intent to cause serious bodily injury (“implied malice”)
o 3. Killing w/ “depraved heart” (abandoned and malignant heart;
depraved indifference) (“implied malice”)
Moral Equivalent of “Intent to Kill”
• Depraved heart
• Abandoned and malignant heart
• Depraved indifference

State v. Robinson
• Altercation between D and victim in the park. D hit victim w/ a golf club
and victim died
• D was charged w/ depraved heart second-degree murder
• Hard to determine whether D’s conscious objective was to kill or
merely to injure a victim. That is for the trier of fact to decide
• Depraved heart is supposed to be the moral equivalent of intent to kill
(which is why it goes in category of second-degree murder)
o There is a subset of reckless that is so extreme that we cannot
differentiate it morally from an intent to kill

Depraved heart murder (second degree murder)

• Key may not be the magnitude of the risk, nor the degree of the D’s recklessness,
but instead the value the D placed on the victim’s life
• Was the D’s conduct so devoid of any possible socially redeeming value that
engaging in the conduct, and thereby creating even a small amount of lethal
risk to the victim, demonstrates that the D really did place no value at all on
the life of the victim?

Used to describe depraved heart type behavior:

• Extremely reckless
• Devoid of regard for life of others
• Devoid of socially redeeming value
• Extreme indifference to the value of human life

3. Felony Murder
• D who causes death as a result of the intentional commission of a felony
inherently dangerous to human life is guilty of felony murder
o If the felony is one of the ones that are enumerated, then D is guilty of
first-degree murder. If not, in many jurisdictions treat it as a second-
degree murder
• Intentional commission of the felony becomes the basis for deciding if D is
culpable enough to be treated as a murderer even if there was no intent to
kill the victim

People v. Billa
• D conspired w/ 2 others to commit arson of his truck for insurance fraud
• While setting truck on fire, one of the conspirators’ shirts caught on fire
and he died
• Purpose of felony murder is to deter people from committing felonies
b/c if they commit felonies and something goes wrong, then they are
strictly liable
• if it is an appropriate, qualifying felony that results in death, then it’s a
felony murder

Ex parte Mitchell
• D was indicted for felony murder (unlawful distribution of a controlled
substance)
• Felony that is not enumerated in a statute is still dangerous to human life
o How should “dangerous to human life” be interpreted?
▪ Abstractly or case by case?
• Case by case can lead to hindsight bias → if I’m
deciding if something is clearly dangerous or
inherently dangerous and I have a body, then it will
be difficult for me to come to another determination
▪ ***It is for a jury to decide whether a felony is inherently
dangerous
Voluntary Manslaughter
• Common Law Manslaughter
o Voluntary Manslaughter- intentional killing plus reasonable
provocation (sometimes called “heat of passion”)
▪ Provocation negates the malice aforethought or serves as a
partial defense to the charge of murder (not a complete
defense/does not eliminate criminal liability)
▪ Provocation takes murder (1st or 2nd degree) down to voluntary
manslaughter

4. Provocation and “Extreme Mental or Emotional Disturbance”

Commonwealth v. Acevedeo
• D and friends went to a party where alcohol was consumed. They were
asked to leave and then they came back. Victim challenged D to fight
“one-on-one”. D claims that someone hit the side of his face, knocking
him to the ground. He felt people beating him and he couldn’t push them
away
• Judge didn’t instruct jury on voluntary manslaughter based on reasonable
provocation
• Voluntary manslaughter- an unlawful killing arising not from malice, but
from sudden passion induced by reasonable provocation, sudden combat,
or excessive force in self-defense
o Even if a person is adequately provoked, the provocation
defense is unavailable if their motivation is not connected to
that provocation
• Reasonable provocation- provocation that would have been likely to
produce, in an ordinary person, such a state of passion, anger, fear, fright
or nervous excitement as would eclipse his capacity for reflection or
restraint
o “Reasonable” refers to D’s emotional state, not his conduct.

Provocation under common law:

• Provocation must come from victim
• Whether the contact is sufficient will depend on whether a reasonable person
under similar circumstances would have been provoked to act out of emotion
rather than reasoned reflection
• Even if D is still hot, the question is whether a reasonable person would have
calmed down in that time
o Time and place are important

Legal Sufficiency of Provoking Acts

• Violence is sufficient, including mutual combat
• “Mere words” are not typically sufficient in common law
• Trespass alone is not sufficient
Adequate Provocation
• Older common law approach: category
o Mutual combat
o Serious assault and battery
o Injury to D’s relative (or other 3rd party)
o Resisting illegal arrest
o Observing cheating spouse
• Newer common law approach: “reasonable cause”
o More flexible than category approach

Provocation: 4 Pronged Test

• 1. Reasonable provocation: would a reasonable person have become upset, scared,
angry, etc.?
• 2. Actual provocation: was D in fact upset, scared, angry, etc.?
• 3. Would a reasonable person have cooled off?
• 4. Did D actually cool off? → if so, then no provocation

Reasonable Person Test

• Given the degree of provocation D experienced, would a reasonable person react
as D did?
• Majority rule = “objective” test
o Do not take D’s particular characteristics into account in deciding whether
D acted reasonably in response to the provocation

State v. Shumway
• Victim was irritated that D was beating him in the video game. Victim
poked D w/ knife. Victim and D wrestled over knife and D stabbed victim
39 times. Victim died.
• Jury wasn’t instructed on extreme emotional disturbance
o A person suffers from extreme emotional disturbance when he is
exposed to extremely unusual and overwhelming stress such that
the average reasonable person under that stress would have an
extreme emotional reaction to it, as a result of which he would
experience a loss of self control and that person’s reason would be
overborne by intense feelings such as passion, anger, distress,
grief, excessive agitation, or other similar emotions
• D was entitled to instruction on extreme emotional disturbance b/c jury
could conclude that D caused death of victim under influence of extreme
emotional distress for which there is a reasonable explanation or excuse

MPC §210.3(1)(b): EMED Manslaughter

• Similar to voluntary manslaughter, but there are 3 key differences in MPC
§210.3(1)(b):
o Reasonable time for “cooling off” is irrelevant
o Never uses “category approach” to judge adequacy of provocation
o More subjective approach to reasonable person test
 o Considers personal handicaps, but no things that are morally objectionable
o Idiosyncratic moral values are not a part of the actor’s situation
o The question is whether the actor’s loss of self-control can be understood
in terms that arouse sympathy in the ordinary citizen → jury makes the
decision

People v. Casassa
• D wanted a romantic relationship w/ victim, but it wasn’t working out
• It was something that had been building up in his mind and he was under great
emotional distress. D offers victim a gift and she rejects it. He stabs her several
times and then drowns her
• In order to see if it qualifies as MPC extreme emotional or mental disturbance,
must figure out if D’s reaction was based on that EEMD and whether it was
reasonable (can’t be solely from D’s viewpoint)
• 2 elements for this kind of defense:
o 1. Must be acting under this influence
▪ Subjective
o 2. Must be reasonable explanation or excuse
▪ Whether or not the disturbance (NOT THE KILLING) was
supported by reasonable explanation or excuse. Jury must decide if
this is something that we are willing to say is understandable
(gives fact finder the opportunity to show sympathy and mercy)

5. Reckless Manslaughter

State ex rel. Thomas v. Duncan

• D was driving w/ brother and another car made threats that led him to
believe that he and his brother were in danger of being seriously injured or
killed. D tried to drive away and ran a red light and hit a car. Person inside
other car died.
• D claims that he didn’t satisfy the mens rea element of recklessness b/c
due to his fear of the person chasing him, he wasn’t aware that he could
cause the death of that person by running the red light
• Court held that the evidence can be permitted to negate the mens rea. The
court focuses on mental state
o Being aware of the risk and the justifiability of the risk are separate
and distinct inquiries
▪ Here focus is on awareness

6. Negligent Homicide

People v. Cabrera
• D went around curve too fast and lost control of car. 3 passengers in the
car died
• D was charged w/ criminally negligent homicide
• Court’s decision hinges on “what does it take in order to satisfy
negligence?”
o Negligence- fails to perceive a substantial and unjustifiable risk
that such result will occur or that such circumstances exist. Risk of
such nature and degree that the failure to perceive it constitutes a
gross deviation from the standard of care that a reasonable person
would observe in the situation
• Court says something extra has to be going on in order to transform
regular speeding into dangerous speeding. Something that shows serious
blameworthy conduct creating or contributing to a substantial and
unjustifiable risk of a proscribed result
o Lots of people speed so, failing to perceive the risk is not a gross
deviation here
• Does the D exhibit the kind of seriously blameworthy carelessness whose
seriousness would be apparent to anyone who shares the community’s
general sense of right and wrong?
• Driving is different, which explains why many states have created their
own special statutes for vehicular homicide to find a way to reliably
address these issues
7. Inchoate Crimes

Inchoate crimes- crimes that are committed somewhere along the way toward the commission
of another crime that may never, in fact, be completed (ex: attempt, solicitation, conspiracy)
o 3 Inchoate offenses:
▪ 1. Attempt- acting w/ intent to commit the target offense, but failing to do
so
▪ 2. Solicitation- asking someone else to commit the target offense
▪ 3. Conspiracy- agreeing w/ others to commit the target offense
▪ ***These are separate crimes that can be and often are committed
even if the crime that was the attempt, solicitation, or conspiracy was
never committed
A. Attempt
• Criminal offenses that consist of conduct that would constitute a completed
offense (target offense), except that one element of the actus reus is missing
• Why do we punish attempts?
o Consequentialist considerations:
▪ Preventing harm
▪ Incapacitating, rehabilitating, or deterring dangerous potential
offenders
o Retributivist considerations:
▪ Ds who commit attempts are just as culpable and blameworthy as
those who commit completed offenses and thus deserve
punishment
o ***Often, attempts are given a lesser punishment. However, MPC
punishes attempt at the same level
• Multiple convictions are not allowed
o If the target offense is completed (in the same transaction or event), D
cannot be convicted on charges of both attempt and the completed offense
o But if an attempt and target are committed in separate transactions,
then multiple convictions are allowed

Common Law Attempt

• Mens rea is satisfied if D intends to commit the crime
• D has committed an attempt if he comes dangerously close to completing the
crime and actually causing the intended harm (actus reus)
• **How close did you come to complete the offense?- The closer you are to
having completed the offense, the easier it is for the common law to say it was
an attempt

State v. McElroy
• Police find plastic bag in D’s shirt. D says pills were amphetamines. Later
analysis by chemist indicated that the pills were not amphetamines or
dangerous drugs of any kind
 • D was charged w/ attempt to possess dangerous drugs
• Court held that D can be charged w/ attempt to possess dangerous drugs
• Factual impossibility- crime is impossible to complete b/c of some
factual condition unknown to D.
o NOT A VALID DEFENSE b/c D has done everything he thought
he had to do to commit the offense
• Legal impossibility- if the act, if completed, would still not be a criminal
act. VALID DEFENSE

MPC §5.01(1) Definition of Attempt

• D is guilty of an attempt to commit a crime if, acting w/ the kind of
culpability otherwise required for commission of the crime, he:
o (a) purposely engages in conduct which would constitute the crime
if the attendant circumstances were as he believes them to be, or
o (b) when causing a particular result is an element of the crime,
does or omits to do anything with the purpose of causing or with
the belief that it will cause such result without further conduct on
his part, or
o (c) purposely does or omits to do anything which, under the
circumstances as he believes them to be, is an act or omission
constituting a substantial step in a course of conduct planned to
culminate in his commission of the crime

MPC §5.01 Conduct Which May Be Held Substantial Step Under Subsection
(1)(c)
• Conduct shall not be held to constitute a substantial step under
MPC§5.01(1)(c) unless it is strongly corroborative of the actor’s criminal
purpose. Without negativing the sufficiency of other conduct, the
following, if strongly corroborative of the actor’s criminal purpose, shall
not be held insufficient as a matter of law
o Lists examples of D’s conduct that the fact finder is entitled to rely
upon in finding that the D committed the attempt:
▪ Lying in wait, searching for or following the contemplated
victim
▪ Enticing the victim to come to the place contemplated for
the commission of the crime
▪ Reconnoitering the place contemplated for the commission
of the crime

MPC 5.01 Dissected:

• Mens rea = “purpose” (intent)
• Actus reus = 3 variations
o “Attendant circumstances were as he believes them to be”
o D did what he thought would cause the result
o Incomplete conduct- “substantial step”
 ▪ 5.01(2): “strongly corroborative” → refers to what is going
inside D’s head (all about mental state)
▪ 5.01(2): “shall not be held insufficient as a matter of
law”→ let jury decide

• ***General rule: To be liable for an attempt, D must have the mens rea
of specific intent to commit the target offense
o Attempt crimes are always specific intent crimes
▪ Attempted murder- mens rea is a specific intent to kill
▪ Attempted theft- mens rea is a specific intent to steal

MPC §5.01(4) Renunciation

***MPC starts w/ idea of I want to commit a crime (on one side) and moves
toward the completed offense (on the other side). Once you get far enough away
from the idea to a certain point (substantial step), then that’s enough. It
allows for enforcement to intervene earlier

• To have an affirmative defense to attempt charge, the

renunciation/abandonment must be:
o Voluntary and
o Completed (abandonment must be permanent, not temporary
or contingent, not simply a decision to postpone the criminal
conduct) and

People v. Acosta
• D attempted to buy cocaine, but didn’t like the quality of it
• D is charged w/ attempt to possess cocaine
• Court held that D is guilty b/c court draws the line at acts “very near to the
accomplishment of the intended crime”
• To have an affirmative defense to attempt charge, the abandonment
must be:
o Voluntary and
o Completed (abandonment must be permanent, not temporary
or contingent, not simply a decision to postpone the criminal
conduct) and
• After D rejected the cocaine, he made other efforts to obtain cocaine.
There was no complete abandonment of the overall criminal enterprise

Kohlmeier v. State
• Someone reported two customers that purchased large quantity of matches
• Police pulled over D and found ingredients to make methamphetamine
• D was charged w/ attempt to manufacture methamphetamine
• Court held that D was guilty b/c 2 of the 3 main ingredients required for
manufacturing the drug had been recovered and that was enough b/c it was
a substantial step.
Accomplice Liability and Conspiracy

Accomplice Liability
• Form of criminal liability (it’s not a distinct criminal offense)
• Convicting D as an accomplice means holding D liable for a crime that
someone else actually committed
• 18 U.S.C. §2: you can be punished if you do it (principal), but if you didn’t do it,
and rather aided, abetted, counseled, commanded, induced, or procured, then you
are being punished the same way
• An accomplice can be convicted even if the principal is acquitted b/c
accomplice’s liability is independent of the principal’s liability
o Even if the principal is acquitted on basis that jury believes no crime was
committed. Accomplice still has no defense based on the principal’s
acquittal

Actus Reus of Accomplice Liability (Non-MPC)

• Aiding the principal’s offense, or
• Encouraging the principal’s offense, or
• Omitting to perform a legal duty to prevent principal’s offense
• What counts as “encouraging” principal’s offense?
o Principal must know that accomplice intends his presence to be a sign of
encouragement, or
o Principal must know that accomplice is willing to aid principal in the
offense if called upon to do so

Actus Reus of Accomplice Liability Under MPC §2.06(3)(a)

• Same as above
• Also includes: If the person, w/ the purpose of promoting or facilitating the
commission of the offense, “agrees to aid” or “attempts to aid” such other
person in planning or committing it

State v. Romero-Garcia
• D brought drug dealer to another individual to buy cocaine from
• D was charged w/ aiding and abetting trafficking in cocaine, and aiding and
abetting the failure to affix illegal drug tax stamps
• Court held that D was guilty b/c it was not necessary that D know that the cocaine
lacked the required stamps in order to commit the offense of aiding and abetting
the failure to affix drug tax stamps. D only had to knowingly participate in or
assist the drug dealer in the possession or distribution of cocaine
• What is aiding and abetting?- need to participate in or assist in the crime and
share in the criminal intent
• Various permutations “all demand that he in some sort associate himself w/ the
venture, that he participate in it as in something that he wishes to bring
about, that he seek by his action to make it succeed”
o Participate in it as something he wishes to bring about
o Trying to do something to push this along
 o Doesn’t take much for there to be aiding and abetting (and therefore,
accomplice liability)

Conspiracy
• If there is no agreement, then there is no conspiracy
o There must be a meeting of the minds
• Attacks group criminality b/c w/ more people, there is more crime and more
efficiency. (when people get together they are more bold and less likely to
stop)

Pinkerton v. United States

• Ds are charged w/ substantive crime of making alcohol
• Even though Walter was making the alcohol while Daniel was in jail, both are
substantively liable b/c they have a formal agreement and it was foreseeable
• A conspirator who is going to be guilty of conspiracy can also be guilty of
the substantive offense that was the object of the conspiracy if it was done
in furtherance of the conspiracy and it was w/in the scope of the
conspiracy and it was reasonably foreseeable
 United States v. Colon
• Govt. was listening to phone conversations of D’s supplier and knew someone
would be coming to the house to buy drugs
• D was charged w/ possessing cocaine w/ intent to sell it, conspiring to possess
cocaine w/ intent to sell it, and aiding and abetting the conspiracy
• Court held that D was not guilty of aiding and abetting the conspiracy b/c
large quantities of controlled substances, w/out more, cannot sustain a
conspiracy conviction
o Need proof of an agreement to commit a crime other than the crime
that consists of the sale itself
o No basis for thinking that D really helped drug dealer’s drug
conspiracy
• Conspiracy- an agreement to engage in an unlawful act
• Aider and abettor is conventionally defined as one who knowingly assists
an illegal activity
o Aiding and abetting can turn into conspiracy, but it doesn’t have to

2. Inchoate Crimes and Accomplice

People v. Superior Court of Los Angeles County (Decker)
• D hired a hit man to kill his sister and also the friend, if she was there, so
there wouldn’t be any witnesses
• Hit man was an undercover police officer
• D was charged w/ attempted willful, deliberate, and premeditated murder
of his sister and her friend, the solicitation of the hit man to commit these
murders, and solicitation of locksmith guy to murder his sister
• Attempt crimes require:
o 1. Specific intent to kill
o 2. Commission of a direct, but ineffectual act toward
accomplishing the intended killing (must go beyond mere
preparation and show that killer is putting plan into action)
• Court held that there’s enough evidence to charge D w/ attempted murder
b/c:
o 1. Specific intent to kill → undercover cop said “are you sure you
want to go through w/ it?” and D said “I’m 100% sure”
o 2. Commission of an overt act that shows killer is putting plan into
action → D did research into killers, budgeted to pay for the
services, evaluated how and where the murder should be done,
tested the level of security around his sister’s place, considered the
possibility of a witness and what should be done in that event. D
agreed on price and time frame w/ undercover cop. Also, D
provided him w/ all necessary information concerning his sister,
her home and office, and her habits and demeanor
▪ ***Payment to hit man helps make it an attempt and a
solicitation
• Preparation is not an attempt, but some preparations may amount to
an attempt
 • ***MPC prevents D from being charged w/ more than one inchoate
crimes

***Can’t be convicted for attempted involuntary manslaughter b/c you must have a specific
intent to have something come about. Can be convicted for attempted voluntary manslaughter

Murder Conspiracies
• Mens rea for conspiracy is specific intent
• Govt. must prove that:
o 1. D knowingly joined the relevant agreement
o 2. D had the purpose to kill the conspiracy’s target
• ***No crime of conspiracy to commit manslaughter or negligent homicide. All
homicidal conspiracies are conspiracies to commit murder

***Can be convicted of involuntary manslaughter as an accomplice (ex: giving drunk friend

your car keys to go racing and the friend kills someone while driving. You aided and abetted his
conduct b/c you were OK w/ fact that he was doing something that may hurt someone)
Drug Crimes
• Drug crimes are consensual
• Purchase of drugs → possession of substance
• Manufacture and sale → possession w/ intent to distribute

A. Possession, With or Without Intent to Distribute

• Weight of the drugs matters in possession w/ intent to distribute charge

Kier v. State
• Police pulled over a car and found a bag w/ rocks of cocaine and a hand-
rolled marijuana cigarette that had recently been smoked. Police arrest
everyone in car
• D claims that she didn’t smoke the marijuana cigarette and that she didn’t
know the other passengers had marijuana in the car
• Court held that mere spatial proximity to the drugs w/out anything
more cannot be enough to prove possession
• In order to prove constructive possession, govt. must show (beyond a
reasonable doubt) that D knowingly had both the power and the
intention to exercise control over the marijuana at the time
o Power to exercise control over drugs can be inferred from access to
drugs
o Intent to exercise control over drugs can be inferred from the
surrounding circumstances (attempts to flee, behaving erratically,
under the influence of drugs, etc.) **DETERMINED BY
INFERENCES**

United States v. Hunte

• D and friends were transporting marijuana from AZ to NY. Police pulled
them over. D was not very involved w/ business aspect of the deal, but
was charged w/ possession of marijuana w/ intent to distribute
• Constructive possession- when a person does not have actual possession,
but instead knowingly has the power and the intention to exercise
dominion and control over an object, either directly or through others
o Evidence must show some nexus between D and the drugs
• Control does not have to be exclusive. Just b/c one individual exercised
control over the drug doesn’t mean that the rest of them did not jointly
possess the drugs as well
• Court held that the evidence against D more than substantiates the nexus
between her and the marijuana
o No doubt of D’s knowledge of the marijuana b/c she was present
when it was delivered, unloaded, sampled, and loaded, she
registered for the hotel, closed the blinds to hide them, drove one
of the vehicles **THESE ARE INFERENCES used to
substantiate the nexus between D and the marijuana**
• Court rules that D constructively possessed the drugs
 Garcia v. Florida
• Police found methamphetamine in D’s car. D claims he has never seen it
before and that his car was stole a few days ago and when he found it, it
contained items that weren’t his
• D was charged w/ possession of methamphetamine on the trafficking
offense
• Court held D must have knowledge of the illicit nature of the material
in order to be guilty

Stage v. Pigford
• D’s truck was over state weight limit. Police asked to look inside truck and
D refused. Eventually, police looked inside and found 52 pounds of
marijuana sitting on a box of grapes
• Court held that D is guilty of constructive possession by using
inferences:
o D had access to the cargo and could have easily found the
marijuana
o The quantity of marijuana in the truck → no person would give a
stranger $130,000 of marijuana
o Location of the marijuana suggests that it was placed in the truck
after it was fully loaded
o D had dominion and control over the marijuana by virtue of his
access to the interior of the truck

B. The Amount of the Drug Possessed or Sold

Whitaker v. People
• D was on Greyhound bus and put his jacket inside a black bag b/c it
looked like nobody was using it. D consented to search of the bag by
police. Police found 8.8 pounds of methamphetamine. D claimed he didn’t
know the drugs were in the bag. D was charged w/ possession of the
controlled substance
• Court held that D didn’t need to know the kind of drug or the actual
weight of the drug. D only needed to know that he was transporting
the drug (had to know he was transporting the dope → knew he was
transporting the bag)

People v. Ryan
• D asked friend to receive a shipment of hallucinogenic mushrooms on his
behalf. Police found out about the transaction. D was arrested for
attempted criminal possession of a controlled substance
• NY Statute: a person is guilty of criminal possession of a controlled
substance when he knowingly and unlawfully possess 625mg of a
hallucinogen
 • Court held that D is not deserving of enhanced punishment unless he is
aware that the amount of hallucinogen possessed is greater than the
statute limit
o There is no evidence linking the hallucinogen weight to the weight
of the mushroom. So there is no way to prove that just b/c D
knowingly attempted to possess 2 lbs. of mushrooms that he also
knowingly intended to possess a certain amount of hallucinogen

C. The Location of the Drug Possession or Sale: “Drug-Free Zones”

• School zones allow for unequal and uneven enforcement that often skews
among race and class lines b/c urban communities are more likely to live w/in a
school zone that suburban communities

State v. Benniefield
• D walks home and walks by a school (therefore, in the school zone).
Police found cocaine on D and arrested him. D was charged w/ possession
of narcotic drug in school zone
• Court held that enhanced drug sentence for possessing drugs in a
school zone doesn’t violate equal protection b/c the legislature has
made this decision on a rational basis:
o Distinction must be genuine and substantial
o Classification must be genuine or relevant to purpose of law
o Purpose of statute must be one that the state can legitimately
attempt to achieve
• Court held that D didn’t need to know that he possessed the cocaine in
school property b/c cocaine is illegal in a school zone AND outside of a
school zone

Whatley v. State
• D was arrested at his home (for a warrant unrelated to this case) and police
found cocaine in his pocket. D lived 795ft away from a church that had an
active youth program. D was charged w/ possession of cocaine as a Class
A felony b/c he was w/in 1,000ft of a youth program center
• D argues that statute is vague b/c it states that the programs or services be
provided on a “regular” basis
• Court held that the constitution does not demand a statute free of
ambiguities, but rather one that will put a person of ordinary
intelligence on notice that one is w/in a protected area
o All statutes are vague to an extent. As long as the statute doesn’t
infringe upon constitutional rights, then it is valid
• Court held that anyone could discern that the activities occurring at
the church qualified it as a youth program center by observing kids
entering and exiting the building on a regular basis or by contacting
the church and asking
Defenses
• Self-Defense
o Defense of others
o When figuring out when to use self-defense, use test set out in Dykes v. State
o When D thinks he needs to use self-defense, but he’s mistaken, then use common
law vs. MPC (see below for breakdown)
• Necessity
• Duress
• Justification vs. Excuse
o Justification- the act was not wrong, all things considered. Permissible or even
commendable
o Excuse- the act was wrong, all things considered, but the actor was not culpable.
D is not morally blameworthy, despite having done the wrong thing
o ***Actions are justified. Actors are excused

A. Self-Defenses

United States v. Biggs

• D attacked an inmate w/ a homemade knife. D alleges that he acted in self-
defense b/c he knew the victim had been attempting to procure a knife
from other inmates and had threatened him
• Court held that elements of self-defense are:
o 1. A reasonable belief that the use of force was necessary to defend
himself or another against the immediate use of unlawful force and
o 2. The use of no more force than was reasonably necessary in the
circumstances

Dykes v. State
• When do you get to use self-defense?
o Reasonable grounds of imminent or immediate danger of death or
serious bodily harm from assailant
o D must actually believe he is in danger
o D must not have been aggressor
o Force used must have been unreasonable or excessive
o ***Goldilocks rule- you want to be able to defend yourself, but
you can’t use too much force. Must be JUST RIGHT

People v. Goetz
• Four youths asked D for $5 on a subway in NYC. D thought they were
going to mug him so he shot them. D’s fourth shot missed the boy. D saw
the boy was OK and shot him again
• If D was right that the teenagers were going to kill him (imminent threat of
bodily harm), then no problem. But what if he was wrong? Should we
allow a defense if he makes that mistake?
o If the law doesn’t recognize defenses and mistakes in defenses,
then it might discourage people from taking justified or even
 desirable action b/c they would be worried that a reasonable
mistake would put them on the wrong end of a criminal conviction
• Sets 4 different standards of self-defense rules:
o 1. NY Penal Law 1909- no self-defense unless it’s actually
necessary (if you’re mistaken, then you get convicted of the
highest charge)
o 2. NY Penal Law 1965- self-defense is available, even if you’re
mistaken, but your mistake must be reasonable
▪ Reasonable takes into account your own life experiences,
physical size, strength, etc.
o 3. Common Law- self defense is available:
▪ As a full defense, if your mistake is reasonable
▪ As a partial defense, if your mistake is unreasonable
• If your mistake is unreasonable, we call that
“imperfect self-defense” and you get convicted of
voluntary manslaughter
o 4. MPC §3.04(2)(b) and §3.09(2)
▪ If your mistaken belief is reckless, then you can be
convicted of manslaughter under §210.3(1)(a)
▪ If your mistaken belief is negligent, then you can be
convicted under §210.4

Retreat: The General Rule

• General Rule for states with retreat rules: D must retreat before using deadly force
if he can do so w/ “complete safety” (also in MPC 3.04(2)(b)(ii) and MPC
3.05(2)(a))
• Retreat rule only applies if D uses deadly force
o So you can punch someone w/out retreating, but don’t shoot them w/out
first retreating if you can

Retreat: Castle Rule

• A narrow exception to the general duty to retreat
• D does not have to retreat from his own home (also in MPC 3.04(2)(b)(ii)(A))

Retreat: Initial Aggressor Rule

• An exception to the exception
• If D was the initial aggressor, then D must retreat (even from home) (also MPC
3.04(2)(b)(ii)(A))
• Don’t want to reward people for being the aggressor

State v. Gartland
• D suffered from years of abuse from her husband. D and husband were
arguing. Husband followed D into her bedroom and threatened to strike
her. D took out a shotgun and husband lunges at her w/ his fists clenched.
D shot husband.
 • D who is attacked by a cohabitant in their shared dwelling has a duty to
retreat before using deadly force in self-defense. Self-defense claims
generally require a D who can safely retreat from an altercation to do so.
Except for when the attack takes place in the D’s home, then the retreat
requirement is eliminated. NJ law imposes a duty to retreat upon a person
attacked by a cohabitant
• D had a duty to retreat unless the bedroom she slept in constituted a
separate dwelling from the main home to which she had a right of
exclusive control

Battered Spouse Syndrome

• BWS evidence can be admissible to prove reasonableness of D’s beliefs
regarding:
o Whether attack w/ deadly force was imminent
o Whether deadly force was necessary
o Whether amount of force used was reasonable

Mobley v. State
• Victim (Jason) punched Chico in the eye. Then other victim (Roly) rushed
out of the restaurant looking like he was reaching under his shirt for a
weapon. D shot Jason and Roly. D was charged w/ 2 counts of second-
degree murder
• D argues that he can’t be charged w/ murder b/c of stand your ground laws
o FL statute says if you meet the statute, then you are immune from
prosecution and civil liability. No requirement to retreat (person is
allowed to stand his ground and meet force w/ force)

Stand Your Ground Law

• Removes common law duty to retreat entirely
o Extends the “castle rule” to everywhere, not just your home/work
• If D is the initial aggressor, then he may not rely on Stand Your Ground rules
• Some Stand Your Ground laws have procedural protections for Ds who claim to
have killed in self-defense (immunity from arrest and prosecution, right to pre-
trial hearing on Stand Your Ground issues)

Duress
• Duress rarely wins (less likely to succeed than self-defense)
• MPC §2.09:
o 1. D faced a threat of unlawful force (to D or another) if D did not commit
the offense
o 2. A person of reasonable firmness in D’s situation would have been
unable to resist
o 3. D was not reckless for being in the situation in which he faced the threat
o ***If D was negligent and has been charged w/ a negligence offense (ex:
negligent homicide) then duress is unavailable in response (MPC 2.09(2))
 Williams v. State
• D borrowed money and was not able to repay his debt to Eubanks. Former
Eubanks members kidnapped D b/c they thought he knew where a drug
stash was and threatened to kill him if he didn’t tell them where the
location was. D led them to Hale’s apartment and told them the stash was
in the house. D said he pretended to participate in the search.
• Court held that D does not get to use a defense b/c he recklessly put
himself into this situation (getting himself involved w/ those criminals led
to his involvement in the armed invasion of the minister’s home)

C. Necessity
• Necessity almost never wins
• Standard test for Necessity:
o 1. D reasonably believes the criminal act is being done to prevent a
significant evil (harm)
o 2. D reasonably believes there is no adequate alternative to
committing the crime
o 3. The harm caused by the crime was not disproportionate to the
harm avoided

Muller v. State
• D was protesting the Iraq war at a U.S. Senator’s office. D refused to leave
when the office closed (committed the crime b/c he thought he needed to
do it to end the war). D raised defense of necessity.
• Necessity did not work in this case b/c no evidence that D reasonably
believe that what he did would stop the war
•
Durres v. Necessity
• What was the source of the threat of harm that the D seeks to avoid?
o Natural forces = necessity
o 3rd party bad actor = duress
o This is blurred in MPC
• Did D come up w/ idea to commit the offense, or did someone else tell him what
to do? (Who “nominated” the offense?)
o D came up with the idea himself = necessity
o Someone else told D what to do = duress
• Was D’s crime done to promote the general welfare?
o Yes = necessity
o No = duress

What is the “lesser evil/harm”?

1. Human life always valued above money and property
2. Should human lives be weighed against each other?

Intentional Homicide
o Common Law (majority rule)
 o Duress and necessity are not available as defenses to intentional homicides
(murders)
o However, duress or necessity may provide a defense to involuntary manslaughter
(reckless manslaughter) and negligent homicide
o MPC
o Duress and necessity are generally applicable (available even in cases where D
charged w/ murder)