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Criminal Law outline by alatonick

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Criminal Law outline

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									Criminal Law 2011


I.     General
       A. Theories:
                 1) Utilitarian (Goals 1-3) – Pragmatic ideas that use punishment’s to benefit society on the
                    premise that certain punishments can effectively deter the behavior. The severity of the
                    punishment must be appropriate to curb the conduct and/or help the offender understand why
                    conduct is harmful. (Forward looking)
                 2) Retributive (Goal #4) – Punishes the offender because the offense deserves a response.
                    Society has a responsibility to hold offenders accountable regardless if it will have a
                    deterrence effect. (Backwards looking)
       B. Goals of Criminal Justice: Punishment will reduce crime and provide justice, and better society by
          upholding moral wrongs.
          1. Deterrence (U):
               1. Specific – to deter a certain individual from committing a crime. Can be done by
                    Incapacitation or probation but may not always be effective. Belief that people will avoid
                    criminal behavior because of the fear of sanctions.
               2. General – to deter others from criminal activity. This assumes that others consider the
                    consequences of their behavior when choosing to do something they know might result in
                    criminal sanctions. Problem is that most crimes are not planned.
          2. Incapacitation (U): the criminal is so dangerous that he needs to be segregated from society.
               Aimed to protect public from known dangers that cannot be made safe. Highly effective for
               preventing offenders from repeating crimes but not a long term solution for most offenders.
          3. Rehabilitation (U): system will “cure” the person through punishment and reform the offender.
               Offender needs to be changed to be permitted back into society. Imposes measures for purpose of
               changing the offenders mental outlook so that the offender will be “reformed”
          4. Retribution (R): theory that a person should be punished for the sake of “justice” merely because
               they committed the crime, regardless of the prior 3 utilitarian views, even if punishment would not
               help them change or deter their behavior. “An eye for an eye.”
       C. Purpose of criminalizing: typically criminal laws are made to prevent harmful behavior and
          punishments are established to reform or separate.
                 1) Mill – to define crimes that will prevent harm to people other than the actor and it is not
                    legitimate for legislature to prohibit “self-directed harm.”
                 2) Devlin – Paramount issue in defining crimes is the underlying public morality which needs to
                    be protected from violation of acts, even ones that cause no measurable harm, such as
                    immoral or repulsive acts (public nudity)
                 3) Hart – argues that even if a person is “disgusted” by conduct, that repulsion is insufficient to
                    justify criminalizing it and harm to others is a requisite.
       D. Criminal Stigma: society places a stamp of criminal for their misconduct which remains long after
          their punishment is complete. This is why criminal punishment is only imposed on deserving people
          when all elements of crime are satisfied. Place a high burden of proof so that we ensure only the guilty
          are punished and no innocent man should ever suffer. Better 10 guilty go free before one is jailed.
          Stigma carried by criminals after they serve time is sometimes unrecoverable. Losing a civil case goes
          away but criminal sanctions follow for job interview and even residential choices.
       E. Interpreting Statutes – Courts job to interpret how a statute should be read and they do not have
          authority to change its meaning or make new laws.
               1) Plain black letter meaning
               2) Historical policy that it meant to set forward
               3) How the statute could be construed to apply to modern needs



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II.    Elements
       A. Conduct: Actus Reus – the wrongful physical act of the crime. Voluntary conduct or omission to
          act when there is a legal duty that is connected to the harmful result. Involuntary acts are not
          criminal unless the person is aware of his involuntary behavior. (Seizures are typically involuntary
          unless the offender is aware he’s prone to seizures and voluntarily chooses to drive).
          1. Voluntary act (if a person acts affirmatively they are liable for their conduct)
              a. State v. Sowry – held that D who had drugs in pocket while being taken to jail not guilty of
                   “knowingly conveying” drugs into jail because his entry into jail was not volitional since he
                   was brought there because of his arrest. (Dissent argued that D’s voluntary act was lying to
                   the police with knowledge he was carrying drugs).
              b. People v. Decina – held a man who suffered from epilepsy but continued to drive can be
                   guilty of homicide from accident while he was unconscious because he made a voluntary
                   decision to drive. However if the D was not aware that he was prone to epilepsy then it will
                   not be a voluntary action because the D was not aware of the risk to be able to disregard it.
          2. Omission to act when there is a legal duty to act – Typically no duty to act, except when:
                   a. Good Samaritan statutes – you have a legal duty to help those in need if you are able.
                         Imposes a duty on someone who knows a crime is being committed and that a victim is
                         exposed to bodily harm to summon police or rescue unless compliance would expose
                         them to danger or if another is providing assistance. The person only has a duty if they
                         are physically able to help. (Must know how to swim to be able to rescue a person who is
                         drowning)
                   b. Contracts – doctors to patients or teachers to students. The person who has the duty must
                         know in advance before he may be held responsible for breaching that duty. (liability
                         based on omission to act requires knowledge of need for action – the parent must know
                         that the child was their son)
                   c. Special relationships – parents or marriage.
              Cases:
               State v. Martinez – held that mom and bf guilty of manslaughter for not providing medical
                   care to infant (mom charged by statute and bf had duty bc of relationship)
               State v. Miranda – held bf liable because he established a “familial relationship” with the
                   abused child. The injuries to the abused were noticeable to anyone and thus the D should
                   have been aware and thus had a duty to care for the child. (a parent has a duty to a child
                   regardless of who causes the injuries)
          3. Possession: actual possession or constructive (power to control an object)
              a. U.S. v. Zandi – brothers guilty of constructive possession when they exercised power to
                   control drugs that were shipped into U.S. D’s had reasonable knowledge of drugs and was
                   able to control where the package was going even though they probably couldn’t do any harm
                   to anyone else. Example of the laws ability to construe the law to reach a guilty person.
              b. U.S. v. Martorano – D arranged to get drugs from undercover agent who put them in van and
                   handed D keys to van. Possession of van keys enough b/c the D controlled the means for
                   transporting the drugs.
          4. Status Crimes – are not enforceable b/c it does not punish conduct, but a persons involuntary
              disposition, thus unconstitutional.
              a. Robinson v. California – statute of criminalizing drug addiction found unconstitutional b/c
                   it is cruel and unusual to make illness a crime. Cannot punish for an illness b/c an illness
                   could be contracted involuntarily so statute goes too far. (unfair to punish AIDS victims)
                   May have been okay to charge with public intoxication.



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                b.   Powel v. Texas – upheld public drunkenness even for an alcoholic because the act of
                     drinking was volitional and the crime was not punishing the D’s status but his voluntary act.
       B.   Circumstances (Attendant Circumstances): The specific situation surrounding that the statute
            describes to be a crime. Some statute requirements can be very narrow to the circumstances of the
            crime. Example would be how to interpret the word “vehicle” in a statute – some might find it to mean
            anything mobile, or only things that are common transportation devices, or even any vehicles that a
            person has FULL control over.
       C.   Consequences: the harm or result from the crime. Determines the harm that D’s conduct caused is
            designed to determine the punishment but often infers that criminal justice is retroactive.
            1. Result Crimes: defined by the social harm (Severity defines the crime)
                a. Aggravated assault v. simple assault
                b. Important for grading purposes
            2. Conduct Crimes: defined by the conduct (risk of harm crimes)
                a. Reckless endangerment, assault by fear of harm, drunk driving
       D.   Causation: defining the act which the D did that caused the resulting harm. The wrongful act must
            cause the resulting harm. The D will typically argue they were not the cause if it is too far removed.
            (Ex: providing alcohol for minors who then drive and are in a car accident)
            1. But-for causation: Very broad, allows for elimination of actors who are unrelated to result.
                Where the D started a chain of events that eventually led to the harmful result.
            2. Proximate causation: More narrow, determines who was the immediate cause of the result. The
                MPC determines if it’s fair to hold the but-for causer liable b/c there’s a second contributing act.
                a. Independent intervening cause – breaks chain of causation because the intervening act
                     was not reasonably foreseeable and it would be unfair to hold the D responsible. (A
                     preexisting condition, although unforeseeable, does not escape liability).
                b. Dependent intervening cause – does not break the chain of causation if something bad
                     happens to worsen the situation if the intervening act was foreseeable. The D’s conduct is
                     likely to lead to the second act (medical malpractice).
                          o Commonwealth v. McCloskey – D provided alcohol to teenagers at unsupervised
                               party found guilty of manslaughter when one teen left party drunk and had accident.
                               Reasoning: harm was a foreseeable result of D’s action and held actions were
                               directly and substantially linked to the result.
            3. Concurrent causation: If result is caused by multiple D’s, and each D’s conduct would have been
                sufficient to cause the result and you cannot determine who actually caused the result (death) then
                each D can be guilty. When two people inflict fatal wounds on a person they can both be held
                liable for murder b/c each persons conduct is sufficient for murder.
       E.   Mens Rea: The wrongful mental state. Punishment for a person with an “evil mind.” Person acts with
            mental state that in some form intends to commit a wrongful act.
                1. General Intent – person intends to commit a certain act (assault). Merely performs the act.
                2. Specific Intent – person intends to commit an act with a particular result (assault on an
                     officer). The person performs the act with specific purpose.
                3. Transferred Intent – If the act was intended for a certain person but accidentally happens to
                     another, intent can be transferred as long as the type of harm is what was intended.
                     Jurisdictions are split whether to transfer specific intent (police assault) to a general intent
                     crime (citizens assault).
                4. Jewell/Ostrich theory of willful ignorance – D can be found guilty of having knowledge if it
                     is proven that the D acted deliberately to avoid knowledge. D cannot claim that he was not
                     aware if there is a reasonable certainty they were suspicious and avoided knowledge.
                     Problem is b/c this could impute knowledge to a person who acts recklessly or negligent.


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                    Deliberate ignorance is not a defense if P can prove there was a high probability the D was
                    aware and purposely avoided learning the truth.
                    - U.S. v. Heredia – D suspected parent of transporting drugs but did not investigate
                         because was driving on highway and too dangerous to stop. Majority says the D must be
                         at minimum; suspicious of the activity and deliberate avoidance.
               5.   Strict Liability: Usually public welfare crimes or health related crimes b/c they have a high
                    danger associated to the public (drunk driving, traffic violations, public nudity, statutory rape)
                    - The courts are hesitant to read SL into a criminal statute unless it is specific because
                         traditionally it has always been a MR needed. Reasoning is that we don’t want to punish
                         those people who do not have a guilty mind but crimes that are SL b/c of public demand.
                    -     People v. Hoskay – man in institution sexually assaults another and charged with public
                         indecency but argues that he didn’t know he was in public… strict liability applies b/c
                         policy for protecting the public is greater than determining culpability.
                    - U.S. v. Xcitement Video –
                    - U.S. v. Balint –
               6.   Simultaneity: Requires that the mens rea and actus reus occur at the same time. The acts
                    must not be separated from the mental state. A person must form an idea and then commit the
                    act not long after. The AR must be attributable to the MR or the casual relationship is lacking

MPC MR Standards:

           A. Purposely – conscious object to engage in conduct of that nature of cause such result. A person
              is aware of the circumstances or believes they exist. There is a specific intent to act with the
              purpose of causing a probably result.
           B. Knowingly – a person is aware that his conduct will practically result in a particular result.
              Actor knows his conduct is harmful.
           C. Recklessly – a person consciously disregards a substantial and unjustifiable risk which is a
              gross deviation from the standard of conduct. Must be greater than ordinary civil recklessness.
           D. Negligence – a person should be aware of a risk that will have a particular result but is not
              aware and a reasonable person in the same situation would observe the risk. If there is no MR
              in statute and it’s not a SL crime then any MR standard above negligence will suffice.




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III.   Burdens on Parties
       A. Burden of Production – The P must produce a showing of evidence to support its issue to be able to
          charge the D with the crime. The D must produce defenses to each element of a crime and then
          persuade, usually by meeting a low standard (preponderance of the evidence).
       B. Burden of Persuasion – Once produced, a party must persuade the jury to a certain degree about each
          element. Criminal law imposes a high standard to ensure only the absolutely guilty are convicted.
          1. Beyond a Reasonable Doubt – constitutional requirement for criminal law where every element
              must be proven to be practically certain, otherwise a reasonable doubt exists. Since impact of
              conviction is so harsh the fact-finder must be absolutely certain. The prosecution must persuade
              the fact-finder BRD that every element exists. Defense will attack weakest element.
              1. Circumstantial evidence: Adds up to make it more likely that the D is guilty. A conclusion
                   must be warranted by the combined and cumulative force of the incriminating evidence.
                   Taking bits of inferences drawn together by the evidence and when combined show almost
                   certain probability the D’s guilt. Must exclude all other reasonable hypothesis.
              2. Eyewitness testimony – highly valued as the best direct evidence b/c typically undisputed
                   but criticized because:
                        o witness accounts are likely to be inaccurate due to time elapsed or stress
                        o people retain less over time
                        o subsequent info has effect on peoples memory
                        o people have “selective perception”
                        o largest single factor in wrongful convictions and so parties typically bring in
                             “experts” to testify about eyewitness testimony credibility and becomes a battle.
              3. Policy: It is better to let 10 guilty men go free than to convict one who is innocent. Led to
                   debates of how many guilty men can go free to save the innocent. What if one guilty person
                   goes free and kills a thousand innocent schoolchildren? Where do we draw the line? Aims to
                   result in conviction of people who are absolutely guilty and never innocent. What is your “n”
                   number of guilty that can be released to save an innocent.
              4. BRD has led to why statutes are carefully defined to avoid loopholes, but are also very broad
                   to encompass a number of different criminal acts with the same objective
              5. Evidentiary rules play a big role in proving BRD. Evidence of past conduct not allowed to
                   prove propensity to commit crime except when used to identify the criminal
          2. Preponderance of the Evidence – typically used for burden of producing a defense or that a
              charge is reasonable. A preponderance of the evidence is when it is more than 50% likely.
       C. Burden of Proof – the amount of proof necessary for jury to convict after persuaded (BRD)
              1. Every element must be proven BRD by the Prosecution
              2. If D meets burden of production (very minimal) to raise a defense, it must be disproven by P
              3. Affirmative defenses must be proven by D by preponderance of the evidence
              4. Innocent/Sane until proven otherwise
              5. Dilemma is that BP BRD protects innocent but makes it difficult to convict the guilty
              6. “Mercy to the guilty is cruelty to the innocent”
              7. Instructions to the jury are given if a reasonable fact-finder could support a finding of guilt




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IV.    Legality: Criminal laws should be reasonably specific so that people will be aware of them and able to
       conform. Also important so they can be interpreted without ambiguity. Crimes must be defined by
       legislation with sufficient specificity so that it is not vague, nor does it enforce innocent conduct, no applied
       in a discriminative manner. Legislation must also provide sufficient notice of what constitutes a crime.
       A. Rule of Leinity – criminal law should be strictly construed to resolve ambiguities in favor of the D.
            Applies when there is a profound ambiguity in the law that cannot be fairly interpreted. Theory that
            the tie goes to the D. In practice this is not always applied and provided as a D when there is reason to
            find the D guilty (see Tennessee below) If two interpretations of a statute and both are equally valid
            then the court should interpret the statute in favor of the D.
            1. People v. Keeler – D purposely killed fetus by kicking ex-wife but could not be convicted b/c no
                 law against killing a fetus until it is born. Since the law of murder only pertained to a breathing
                 human, it did not apply here. (statute was immediately amended)
            2. Rogers v. Tennessee – year + 1 day rule abolished without violating D’s rights b/c D wouldn’t
                 have changed their behavior anyway. Old medical technology made it nearly impossible to
                 determine if a victims cause of death was by a bullet lodged in their system from a shooting a year
                 prior, so they enacted a law but science advanced and the rule was abolished.
            3. People v. Kevorkian – court makes new crime of physician assisted suicide
                       a. Majority: D’s conduct not murder b/c “only where there is probable cause to believe that
                           death was the direct and natural result of D’s act can the D be properly charged. If D
                           involved in events leading up to death, D should be charged with assisted suicide under
                           “saving clause” (available when conduct is not punishable by statute but it was indictable
                           at common law). Court says ok b/c criminal liability is being reduced not expanded
                       b. Dissent: savings clause inappropriate b/c the courts are making a new crime and they
                           don’t have the power to do that.
       B. Constitutional Issues
                    1. Overbreadth – when laws criminalize 1st amendments protected conduct (freedom of speech)
                           a. Lewis v. New Orleans – law punishing opprobrious language to police is
                                unconstitutional.
                           b. R.A.V. v. St. Paul – punishing display of symbol that “person should know would
                                arouse anger, resentment, on basis of race/religion/gender = unconstitutional
                           c. Lawrence v. Texas – statute clearly and unambiguously prohibited homosexual sex.
                                Rule of Lenity not applicable so D claimed statute unconstitutional b/c it violates due
                                process. Court says D entitled to respect in private lives, state cannot make private
                                sex a crime, and there was no legitimate state interest that could justify such an
                                intrusion into private life (relies on liberty doctrine of substantive due process)
                    2. Notice – Legislature must make people aware beforehand what a crime is (shift from common
                       law crimes to purely statutory crime)
                           a. No ex post facto or retroactive statutes (limit on legislatures) – Cannot make an act a
                                crime/aggregate the seriousness of that crime/change the kinds of evidence required
                                to construe guilt and apply it retroactively.
                           b. No novel judicial interpretations (limit on courts)
                                    i.   Bouie doctrine: application to D of unforeseeable interpretation of criminal
                                         law violates due process
                                   ii.   Lambert v. California – law was unambiguous but D couldn’t reasonably
                                         have known about its existence
                    3. Vagueness doctrine:
                           a. Provide notice so citizens arrange behavior to avoid unlawful acts
                           b. Preventing arbitrary/discriminatory enforcement of laws


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                        c. Statutes challenged on grounds of vagueness should be judged in light of its common
                           law meaning, its statutory history, and prior judicial interpretation of its terms.
                       d. Minimizing intrusions into freedom of speech/expression
                       e. Lanzetta v. NJ: statute criminalizing “gang” activity was too vague and gave no
                           definition of what a gang was. “No one may be required at peril of life, liberty or
                           property to speculate as to the meaning of penal statutes”
                       f. City of Chicago v. Morales: statute aimed at gangs, sought to criminalize “any gang
                           members loitering w/one another.”
                               i.   Majority claims statute doesn’t give adequate warning and doesn’t clarify
                                    for people what conduct they are supposed to do by dispersing. Doesn’t tell
                                    the police clearly what they should do and grants them far too much
                                    discretion and threatens to criminalize innocent conduct.
                              ii.   Dissent says it is not vague to punish failure to comply with a dispersal
                                    order and say that allowing police high discretion is necessary
                       g. McBoyle v. US: guy who stole airplane not guilty of stealing self-propelled vehicle
                           bc blackletter reading of statute would not include an airplane
       C. What to Criminalize?
                1. Lord Devlin: no society can exist in the absence of a common moral code
                2. Hans Kelson: not only one moral order exists, but many different and even conflicting ones
                3. Lon Fuller: it would be dumb to criminalize morals like homosexuality b/c it is impossible
                  to enforce them and creates disrespect for criminal law.
                4. Cases:
                       a. Paris Adult Theatre v. Slaton: Upheld law prohibiting private adult film theatre b/c
                           conduct was possible to be seen by an unsuspecting public member.




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V.     Homicide
       A. Pennsylvania Pattern
          1. First Degree Murder – both Malice and Premeditation (planning – no time is too short)
             a. “Malice Aforethought” – an intention to kill/ knowledge an act will result in death. Can be
                  implied or expressed.
             b. Premeditation – the commission of a crime prior to committing (below are factors from
                  Anderson that show premeditation but Perez claims they are not required elements)
                  i.       Planning; the actual deliberation of killing (steps taken to ensure death would result)
                  ii.      Motive of D to have a want to kill (reason to benefit from the killing)
                  iii.     Manner of killing shows there was planning (wounds are aimed at lethal areas)

       Commonwealth v. Carroll – Carroll left army for sick wife. One night, after fighting, during a 5 min break
       Carroll remembered a gun on bedpost and shot her. Guilty of 1st degree. Carroll claims he did not have
       time to premeditate this murder but court finds “no time too short for premeditation” and it was clear his
       actions were intended. Argument that a man of good character could not plan an evil so rapidly, falls short.
       Here, Carroll knew where the gun was, voluntarily took it and shot wife twice in head, also had motive.

           2.   Second degree murder – only Malice
                a. Expressed Malice – when a person expresses a deliberate intention to kill but does not plan
                    their attack. An intention to murder is formed and acted upon with no prior thought.

       People v. Anderson – Anderson killed 10y/o daughter of woman he was dating. Body of child was nude
       and mutilated. Anderson heavily intoxicated. The court finds, regardless of the gore, that Anderson was
       not acting under a clear mind because he was drunk and the fashion he killed the girl shows such
       carelessness it can be inferred he did not premeditate his actions but were the result of an unplanned act.
       Premeditation can be sustained if defendant 1) Planned the activity, 2) had Motive, 3) Manner of killing.

                b.  Implied Malice – extremely reckless act that results in death or serious bodily injury
                    i. Depraved Heart – recklessness with a complete indifference to the value of human
                         life and there is a subjective awareness by the actor. The recklessness so greatly
                         surpasses ordinary criminal recklessness which is required for manslaughter.
                         - Philips test – malice is implied when the killing is proximately caused by an act
                              the natural consequence of which are dangerous to life, which act was
                              deliberately performed by a person who knows that his conduct endangers the
                              life of another and who acts with conscious disregard. (majority approach)
                         - Thomas test – malice is implied when the defendant for a base, antisocial motive
                              and wanton disregard for human life, does an act that involves a high degree of
                              probability that it will result in death.
       People v. Knoller – D owned aggressive dogs that were trained by felons. Dogs had previously killed
       animals and D was aware. Dogs eventually killed D’s neighbor and D was convicted of 2nd degree. D
       argues her acts did not constitute “malice” b/c she lacked expressed desire to kill but court found her
       actions were IMPLIED b/c the defendant was aware their conduct endangered others and acted with a
       conscious disregard for human life. The defendant showed an abandoned and malignant heart.

        People v. Hall – D will argue that since he was an expert driver that he was better at driving and his acts
       weren’t reckless although he was intoxicated, BUT the P will argue that bc they were an expert they knew
       of the risk. Ergo since it’s a reasonable person in the circumstances then the D’s argument falls short.




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           3.   Voluntary manslaughter – passion killing: mutual combat, serious assault n battery, resistance
                of arrest, injury to defendants relative, spousal affair (mitigates malice)
                a. Adequate Cause/Provocation (words are not enough) that causes a heat of passion in the D
                     which would be enough to provoke a RP
                b. Severity of Passion must be such that it interferes with the control that a reasonable person
                     would have in the circumstances. If passion is minimal then a RP may not act in the
                     described manner. (Ex: person destroys your video game v. person has sex with your wife)
                c. No cooling off allowed. The provocation and killing are immediate reactions of each other.
                d. Victim must be provoker – the D cannot kill a third party, limited to killing the provoker.

       State v. Avery – D was cheating on bf and one night her cheater refused to leave and she pulled a gun on
       him to force him out. Her cheater returned later that night and she killed him and was convicted of 2 nd
       degree murder. D claims her actions were done in the heat of passion arising out of adequate cause. The
       adequate cause is one that a reasonable person would find to produce a degree of passion enough to impair
       self control. In this case the adequate cause was only a few words, however there was outside factors such
       as Avery had a history of being raped that could have made her more fearful, however there was also a
       cooling period which goes against her. Regardless the court finds that if ANY credibility to the defense
       exists the jury must be given the VM instruction so the trial was remanded.

           4.   Involuntary manslaughter – killing without malice
                a. A persons behavior is an act of recklessness (aware of risk and disregard) or gross
                    negligence (unaware of risk) so deviated from the ordinary standard of care

       Feinberg (sterno) – D had enough knowledge to know there was a risk, D was aware his customers drank it
       and it was toxic but continued to sell sterno to homeless and he knew they would extract ethanol to drink

       Robertson v. Commonwealth – D was fleeing from officers and jumped over the wall of a bridge to a
       walkway that had a 40 inch wide gap. Officers jumped to pursue him from one end, when Robertson
       reached the other end another officer was present and he reversed direction. The officer pursued and fell
       through. A reasonable person would have seen the risk that his conduct could have had and so his conduct
       was criminally negligent.

           5.   Vehicular Manslaughter – grossly negligent unlawful driving, intoxication, speeding.

       B. Felony Murder (not in MPC) – when a homicide is committed during the course of a felony
          1. Policy:
                 a. Support:
                            i. Malice from felony is transferred
                           ii. Aimed to deter use of violence in crimes
                          iii. Reaffirms sanctity of value of human life
                          iv. Erases prosecutors burden of proof
                 b. Criticism:
                            i. Cant deter something that occurs accidentally
                           ii. Imposes strict liability and unfair accountability
                          iii. Felons usually not aware/able/consider curtailing activity to be less dangerous
          2. Act in Question:
              a. Inherently Dangerous Felony – choosing from a category (rape, robbery, arson, etc.) of pre-
                 selected dangerous felonies (objective)




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                b.   Dangerous Act – the totality of the circumstances in the act is used to determine how
                     “dangerous to human life” (subjective) Ask if the act makes possible a high likelihood of
                     death to determine if it is dangerous
           3.   Merger – excluding lesser homicide as felonies (ex: manslaughter). Why – b/c manslaughter is its
                own type of homicide and to turn it into FM would mean that no lesser homicide would exist.
                (often assault is a problem for this same reason b/c they usually lead to homicide – the systems
                answer to this is determining if there is an IFP)
                a. Independent Felonious Purpose – an attempt to “split” a crime into two parts to get around
                     the merger. The felony is independent from the intent to kill but still is the proximate
                     cause of the death.
                     i.       Ex: Assault: If a homicide occurs as a result of an assault, P will try to split the crime
                              into two assaults so that the first can serve as the IFP for the FM
           4.   Causation – proof that the felony/conduct caused the death. The felony must be linked to the
                death by some sequence.
                a. But for – Death would not have resulted “but for” the D’s conduct
                b. Proximate – Death was a foreseeable result from the cone of the violence they set in motion
                     by participating in the felony. Must be a foreseeable link b/w the conduct and the killing
                     (slipping on liquid v. starting a fire)
                c. Co-felon Deaths:
                     i.    Agency – holds only co-felons liable for killings committed by the other felon because
                           they are agents of each other, does not count when a police officer kills a co-felon b/c
                           they are acting legally and are not the co-felons agent
                           Shield Exception: Deaths caused by third parties when the felon is using another as
                              a shield are excluded from agency limitations
                    ii.    Proximate Cause – The death was a foreseeable result form the cone of violence set in
                           motion by participating in the felony
           5.   Res Gestae – the felony and the killing are connected in time & place. The death is not too far
                removed from the felony in question.

       State v. Anderson – D had stolen a shotgun and was a felony to possess because he was an ex-con. He
       accidentally killed a man. The argument is whether this felony is one considered “dangerous” as the state
       had a category of “dangerous felonies” for FM (objective) which the trial ct claimed it wasn’t and
       dismissed the case. On appeal they used the “dangerous act” approach for FM (subjective).

       Commonwealth v. Kilburn – D assaulted the victim who died from the assault. This brings merger into
       question because although an assault is a felony, certain felonies (assault, manslaughter) cannot be turned
       into FM bc then malice would never be questioned and all manslaughters or assault that accidentally led to
       death, would become FM. The prosecution was able to argue to split the crime into two assaults, one
       which merged with the killing, but the first assault which was the felony which caused the murder.

       State v. Sophophone – (agency v. proximate) cofelon killing, D committing a burglary and fled scene. Was
       arrested and restrained. Other cofelon fired at police and was killed by returned fire. Sophophone was
       charged with FM but not guilty because although the murder was a result a dangerous felony and didn’t
       merge, under causation it was related to the felony however the ct used the AGENCY approach in that the
       police was committing a lawful act by killing the cofelon and police was not an agent of the cofelon. (if
       proximate causation was used then D would be guilty bc he was related to act)




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       C. MPC
          1. Murder – causing death intentionally or knowingly, or with recklessness that is with an extreme
             indifference to life. Combines both degrees that are in the PennPatt.

       Jeffries v. State – conduct involved a single left turn while intoxicated and hit a car, killing another. The
       issue is whether this is manslaughter bc of recklessness or murder bc of an extreme indifference to life
       (equivalent to depraved heart). Murder, bc there was past convictions and D refused to seek help. If this
       were D’s first offense he may have only been found guilty of regular recklessness (manslaughter)


           2.   Manslaughter:
                a. Extreme Emotional Disturbance (EED) – (similar to PP’s VM but different requirements)
                   i.      No single provocation needed to snap, could be from a buildup of many acts.
                   ii.     Must be under influence of EED – test is if a reasonable person would lose control in
                           the same circumstances (take into account the circumstances but also ask yourself if
                           a RP would react that way or if a RP would have put themselves in that position)
                              subjective - a person in the defendants circumstances would be under
                                  influence
                              objective - would a reasonable person acted that way
                   iii.    Brooding period is ok (must show continuance or buildup of aggression for EED)
                   iv.     Victim does not have to be provoker but merely is in the possible zone of violence

       People v. Casassa – D was rejected by his lover and became obsessed with her to the point where when she
       rejected him again he killed her. Under the MPCs approach of EED, a series of events and even a brooding
       period are allowable if determined adequate by a reasonable person. In this case, although Casassa was
       emotionally disturbed, he put himself in that situation which is something a reasonable person would not
       have done. The jury found not manslaughter because although the D was in a state of EED, it was a
       stress which he created himself. The D was not required to have a specific provocation for his EED, as
       long as he had EED, which he did… and he did brood, opposed to the PennPattern approach of a cooling
       period would offset the defense, but a reasonable person would not have been under EED

                b.   Reckless Homicide - when a person disregards a risk that they are aware of (IVM 1)

       Ex Parte Weems – Defendant entered bar with a pistol to protect himself from a man who assaulted him
       earlier. The jury found defendant to be reckless (manslaughter) because the defendant had intended to
       shoot someone. He was aware of the risk of carrying a loaded gun and consciously disregarded them. He
       did not intend to kill the victim (no murder).


           3.   Negligent Homicide – when a person is not aware of a risk that they should be aware of (IVM 2)




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VI.    Assault & Battery
       A. Simple Assault – Attempted battery or intentionally causing victim to fear imminent bodily harm. D
          must have a specific intent and assault must be an imminent danger.
          1. Attempted battery – intending to use violence with ability to do so
          2. Intent to frighten – threatening conduct, other than mere words, intended to injure or frighten
       B. Battery – intentionally inflicted physical harm or offensive unconsented touching. D only needs
          general intent.
       C. Aggravated Assault – Assault with the intent to kill, or use of a deadly weapon, to cause serious
          injury. Can extend to regular assaults if they are on children or elderly or if done to commit a felony.
       D. Terroristic Threats – Purposely terrorizing someone or causing evacuation of a building by
          threatening to hurt someone, or making threats in reckless disregard of whether they will cause that
          result
       E. Reckless Endangerment (REAP) – Engaging in conduct that places or may place person in danger
          of death or serious bodily injury
       F. Stalking – conduct that makes another reasonably afraid or done with the intent to cause distress.
          Difficult to criminalize because often the act of stalking is usually legal (walking around public street).
          New issue of “cyber stalking” b/c the law has not addressed technology crimes.
       G. Domestic Violence – assault crimes that are lessened because they happen in the confines of a home.
          Reason is b/c the crim law doesn’t want to intrude too far into peoples private lives.
          1. Difficulties:
               a. Victims often recant or plead to have the case dismissed
               b. Traditional acceptance of husbands ability to “chastise” his wife
               c. Fear of intervening into family privacy
          2. Possible Solution: Mandatory arrests for domestic violence
               a. Benefits:
                         o Sends message to community that domestic violence will not be tolerated
                         o Saves victims from further danger
                         o Allows for harsher punishments (taking away right to firearm bc victim in danger)
               b. Criticism:
                         o Mandatory arrest might aggravate situation
                         o Forcing victim to testify is overly intrusive
       H. Cases
          1. Smith – court overturned conviction for pointing gun at victim bc only jury instruction was on
               attempted battery and D had committed intent to frighten
          2. Boutin – court overturned assault for D who raised bottle over his head ten feet away from
               intended victim bc he lacked the “present ability” to cause harm




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VII.   Theft
       A. Common Law Larceny – Trespassory (against will by force or stealth) caption (taking) and
          asportation (carrying off) of property (physical personal property) of another (someone must own it)
          with the intent to deprive the possessor permanently (long enough to deprive owner of value).
                1. Benefits:
                      a. Provided notice to D
                      b. Protected innocent conduct (being unable to repay debt)
                      c. Coincided with policy because punishment was very harsh
                2. Criticism:
                      a. P had to do a lot of guesswork with which crime to charge or D goes free
                      b. Property Problem: When does natural property become personal? A tree is real property
                             until a person cuts it down at which point it becomes their personal property.
       B. Larceny by Trick – same as larceny except the unlawful possession is acquired by fraud/deceit
                1. The King v. Pear – D pretended to inspect and ride a horse but then absconded with the horse.
                2. State v. Jonusas – D was supposed to put investors $ in an escrow account but instead
                      invested it and lost the money.
       C. Larceny by False Pretenses – This is when the thief obtains title over an object. Theft of title may
          lead to possession of property but is not the actual theft of the property. Where possession is obtained
          through felonious design and the title remains with the owner larceny is established, while where the
          title as well as possession is absolutely parted with the crime is false pretenses. Title gives you
          legal right to the property.
                              i. People v. Phebus (shopper switches price tags on merchandise)
                1. Title v. Possession
                      a. Owning something means you have title to it
                      b. D has ownership and possession, but sometimes owner has title and renter has possession
                      c. Thief who obtains title but not possession is guilty of theft by False Pretenses
       D. Bailor/Bailee: Legal relationship where bailor (owner of property) transfers possession of
          property to bailee for a purpose (dryclearning, valet parking).
                1. New crime of Larceny by Bailee – the bailee gets possession but not the title and the owner
                still has the right to property. A bailee acting with a clean mind obtains possession and then
                later decides to convert the property.
       E. False Promise: Extending False Pretenses by adding False Promise to do something in the future.
          Must be careful not to criminalize inability to repay a debt. The crime making a false promise to pay.
       F. Forgery & Bad Checks:
                1. Knowingly signing a bad check is False Pretenses b/c there is an attempt to fraudulently gain
                      title.
       G. White Collar Crimes: Crimes can be planned in sophisticated ways by offenders who are more
          capable than street criminals and can exploit the weaknesses of theft pigeonholes.
       H. Federal Mail Fraud – any scheme to defraud or for obtaining money or property by means of false or
          fraudulent pretenses, representations, or promises. (known as the “darling of the prosecutors nursery”
          b/c it is so flexible that it can be used in many circumstances)
       I. Embezzlement – A person who is trusted obtains rightful possession of an item and wrongfully
          converts it from their employer. Statute designed to reach thieves who act in a position of trust for
          their employers in acquiring possession and then covert property. Usually before it reaches the owners
          actual possession so that it is not straight Larceny. The thief initially acted with a “clean mind” to
          obtain property and then converts it to his own before it reaches their employer.
                a. Commonwealth v. Ryan – possession never passed to his master, it was only placed in the
                      register as a place to be held, and so he never really lost control over the item he was trying to


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                    steal so not straight larceny or even trick = embezzlement b/c D obtained $ in position of
                    trust. Not larceny b/c the employee converted the money before it reached his employer.
       J.   Extortion – Obtaining possession by Threat. Examples: Blackmail, holding object for ransom.



                  What Acquired                   Possession                                 Title
How Acquired
Stealth                                           Larceny                                     N/A
Deceit                                        Larceny by Trick                           False Pretenses
Threat                                            Extortion                                   N/A
Rightfully Acquired and Converted      Embezzlement, Larceny by Bailee,                    No Crime
                                              Fraud Conversion




       K. Receiving Stolen Property (“Fences”) – When it is hard to tell when a person actually stole or was
          the recipient of theft. This aims to prevent failure of proof problems if D ends up with someone elses
          property but P is unsure if D actually stole it or merely received it. Statute enacted b/c “fences” drive
          the market for stolen goods, thus aims to prevent encouraging theft.
       L. Consolidated Theft Statutes: some jurisdictions make one crime to cover all common law thefts to
          avoid mischarging. Others keep the categories but allow all to be charged as general theft.
               a. People v. Rishel – obtained $ from ppl who wanted to buy tickets to baseball game. D cashed
                   the $ but never bought tickets and later declared bankruptcy. D can try and dodge all theft
                   laws b/c of statutory working and since D does not have to be consisted w/arguments he
                   would win. Consolidated statute combines all types into one common category. Reasoning
                   was to address social crime for when different thefts were not able to be charged
                   properly and then double jeopardy existed.
       M. MR for Theft:
               a. Theft statutes are not strict liability, therefore a person must act with intent to steal. If a D
                   has made an honest mistake that the property didn’t belong to another person (abandoned)
                   then he cannot be liable for theft. Ignorance of the law is no excuse but mistake about
                   ownership of property can negate the MR can be if honestly believed by the jury. The
                   more objectively unreasonable the belief, the more unlikely it is a jury will find it believable
       N. Other Theft Crimes:
               1. Theft of Service
                        a. Stealing computer time
                        b. Not paying for a meal at a restaurant
               2. Joyriding
                        a. People v. Brown
               3. Computer Crimes
                        a. Newberger v. State: (“nining” the system) D added data but did not MODIFY data so
                             the conviction was improper. Rule of lenity coming into play.
               4. Identity Theft
                        a. Designed to obtain property by charging a purchase to anothers CC by representing
                             the thief is the account holder or to escape detection by assuming anothers identity.
                             Using info about another person for the purpose of representing that person.




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VIII. Defenses:
       Available when D’s conduct appears to reduce moral blameworthiness b/c a D can be acting in response to
       a threat or they may not be mentally functioning correctly. Society allows certain criminal behaviors to not
       be punished based on policy choices or the circumstances. A judge must give the jury instruction for a
       defense if a reasonable jury could believe the argument, even if the judge does not believe it to be true. The
       P’s burden of proof is BRD, but for a D to inject a defense it is usually a low burden of production with
       persuasion of a preponderance of evidence. The P must respond by disproving BRD.
       A. Types of defenses:
                1. Failure of Proof: Attack an element of the crime b/c the P has not proved that they have a
                     case (D didn’t have intent so D didn’t do it). The D is poking holes in the P’s story to claim
                     the P has not proven the elements BRD. No elements are added by the D.
                       a. Can be a straight failure to prove an element defense such as the MR or AR does not exist.
                       b. Can be an “Inferential Rebuttal” – D presents evidence that contradicts an element of a
                          crime (ex: alibi).
                2. Defense:
                       a. True Defense: The D adds an additional element that the P must disprove BRD.
                       b. Affirmative Defense: The D adds an additional element that D must prove is true
       B. Procedural requirements – D has to give pretrial notice to the P if they intent to contradict an
            element or introduce an alibi so P knows ahead of time in case a witness is lying on the stand and they
            have the opportunity to investigate credibility of testimony.
       C. Defenses are separated into two categories based on policy choices about how society identifies the
            mental state of the D.
                1. Justification – “I had a right to do it” (self defense). D admits that he committed the
                     elements but denies he did anything wrong because his decision was based on advancing a
                     social interest. Law tends to be more accepting of these types of defenses.
                2. Excuse – “I had no right but I’m not responsible.” D admits they were wrong but provides
                     an excuse that their decision making was impaired (ex: insanity)
       DEFENSES:
       D. Alibi: rebuttal (rebuttal = factual testimony inferentially contradicting an element of crime). D
            must raise Alibi and it must be disproved BRD by the P (often requires D to give notice).
                1. Type 1 Rebuttal– D was not present at the scene of the crime
                2. Type 2 Rebuttal – D was somewhere else at the time of the crime
                3. Problem:
                       a. When there is an uncredible witness, D’s attorney must decide on whether or not to call on
                          them b/c their alibi testimony may not be credible. There are often two results of this:
                               i.    Result: ineffective counsel for using non-credible witness for alibi
                              ii.    Result: ineffective counsel for choosing not to use non-credible witness
                4. State v. Deffebaugh
                       a. Court reverses barring testimony that D claimed that the witness was not violating the
                          statute requirement of notice for presenting an alibi defense b/c the statute read if the D
                          “proposes to offer evidence that he was someplace else” where here the witness was
                          merely testifying that the D was “not present.”
                       b. An alibi is determined by jurisdiction as to the type and what rebuttal evidence is allowed.
       E. Self-Defense: (Justification & True Defense)
                1. Policy: Allows a person to use reasonable force to defend against the imminent use of
                     unlawful force by another person. Generally you are entitled to use appropriate and
                     necessary force to defend against an actual force. The threat must be unlawful and
                     immediate (objective) and the actor must believe they are in danger of death or serious bodily


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                  harm and the defense is necessary to save themselves (subjective). Proportionality: D is not
                  allowed to use DF to protect against Non-DF. Generally self defense does not apply if the
                  person was the original aggressor unless the other has responded with deadly force or if the
                  initial aggressor abandons the original encounter.
                     a. Non-Deadly Force: a person is justified in using reasonable force if it is
                         o Necessary, and
                         o Proportionate to protect against
                         o Actual or apparent threat of
                         o Imminent and unlawful force
                     b. Deadly force (such that causes substantial risk of death or SBI): a person may use deadly
                        force if the person reasonably believes that the force is
                         o Necessary to prevent
                         o Imminent and unlawful
                         o Deadly force (also includes SBI, rape, or kidnapping)
              2. MPC DF Rules: (more subjective but not so much as to allow a “reasonable racist”)
                         o D is allowed to use DF against V if D didn’t start the conflict, & D believes DF is
                                immediately necessary to combat an unlawful deadly assault by V, assuming that D
                                has retreated but V continues to pursue and D has no safe retreat or if D is in home
                                or work and V is not in same place of work.
                         o D is allowed to use DF if, even though D started the conflict, he did not have the
                                purpose to provoke deadly conflict. D may be prosecuted for assault.
                         o D may not kill V in self-defense if D intended a deadly conflict, unless D has
                                withdrawn and clearly communicated that to V.
               3. People v. Goetz: “A determination of reasonableness must be based on the circumstances
                   facing a D in his situation”
                      a. D shot 4 black kids in subway b/c he thought they were trying to rob him. Court held that
                         the view should be “the reasonable person in Goetz circumstances”, thus incorporating
                         the D’s prior experience (objective & subjective standard). Difficult to incorporate a D’s
                         mental aspects into the reasonable person standard. A reasonable person may not have
                         feared being robbed but Goetz had been robbed prior to this and might have honestly
                         believed he was being robbed. Not all jurisdictions allow subjective reasoning.
               4. Elements of DF:
                      a. Necessity: if there’s a way to protect against DF with non-DF, D should do so. Belief of
                         being attacked with DF is a key determinant.
                      b. Proportionality: D is not allowed to use DF to protect against Non-DF, even if it’s the
                         only way to avoid the non-DF
                      c. Imminence v. Immediacy: Imminence required at common law and satisfied only if
                         threatened force is immediate (urgent). MPC broadens to “immediately necessary under
                         circumstances.” (D’s actions can be immediately necessary even if the threat is not
                         imminent). Immediate is more imminent that imminent. (Poisoned Water Hole – 2
                         runners race across the desert, in order to get to the other side they must drink from
                         watering hole. They get close and one guy starts to limp, the guy who feels better wants
                         to run ahead and poison the water hole – does this become an immediate concern?)
                      d. Limitations:
                             i.      Aggressors: MPC doesn’t allow DF if D was first aggressor unless acted
                                     w/non-DF or attempted to flee.
                            ii.      Modern Retreat Laws – require retreat from DF if it can be done in total safety
                                     and your not in your own house.


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                           iii.    Castle rule – right to stand your own ground if in home or at your place of work.
                                   Some jurisdictions uphold this.
                           iv.     Common law – there is no duty to retreat.
                            v.     If the D knows the force is not needed, even though it is reasonable, they may
                                   not use it in self defense.
       F. Battered Wife/Spouse Syndrome (BWS) - Not an independent defense but it describes a syndrome
          which can support a claim for self defense (certain subjective circumstances of experience can play
          into what a reasonable person in her circumstances may be). Addresses issue of determining the
          reasonableness that the D believed it they had a necessity to use self-defense. Use expert to validate
          syndrome – Purpose is to enhance the D’s credibility to why they subjectively believed why the
          batterer would have killed her and that it was an objectively reasonable danger. BWS victims are
          likely to suffer battering cycles and an escalation of abuse. Reasonable belief is defined as a belief that
          will lead a reasonable person in the same situation, and the same circumstances, to the same conduct.
          Expecting a person suffering from BWS to act reasonably is an oxymoron and so the court creates the
          “reasonable person suffering from BWS.”
              1. In Confrontational situations, self defense instruction is almost always given
              2. In Non-Confrontational situations courts are divided on whether to allow it
                     a. Majority saying no b/c lack of imminence
                     b. MPC more favorable to D’s in BWS cases
                             i.    State v. Edwards: court found that BWS is an “imperfect defense” and lessens
                                   the degree from murder to manslaughter b/c woman had extensive history of
                                   being abused killed her husband after an argument where there was no threat of
                                   imminent deadly harm but she feared that he would have awoken and killed her.
       G. Defense of a Third Person: Like Self-D, this is a “justification” defense which reflects a policy of
          encouraging people to assist others who are at risk of suffering from unlawful violence. Some
          jurisdictions are cautious to not allow this to become an open invitation to assaults.
              1. Reasonable Belief Rule (majority) – If person used a reasonable amount of force to respond to
                   what reasonably appeared to be the use or threat of unlawful force against another person.
                   (objective test protects rescuer even if they are mistaken as long as it was reasonably)
              2. Honest Belief Rule – If defender honestly, even if unreasonable, believes the intervention is
                   necessary under the circunstances to protect the person from unlawful force.
              3. Stand in Shoe Rule – Where the defender steps into the shoes of the person they are defending
                   and has no greater right to use force than that person, even if the defenders condut is
                   reasonable (person helping another from resisting a lawful arrest bc the rescuer thought it was
                   an unlawful arrest) (seemingly would dissuade people from helping)
       H. Defense of Property
              1. Common Law – you cannot use deadly force to protect property but with respect to habitation
                   DF may be possible if it is done to prevent a life-threatening injury. Policy is that life is valued
                   as important. You can take a life to save a life, but taking a life to save propery is not
                   warranted. Preservation of life is of utmost importance and DF to protect mere property should
                   not be tolerated. Moderate force to defend property is allowed.
              2. MPC: DF to protect property is permitted in some states if the force is in response to the
                   taking of the defenders home or in response to commit a certain violent felony (rape)
              3. Note – training a dog to use DF can lead to criminal liability.
       I. Law Enforcement Defense
              1. Designed to protect law enforcement from lawfully doing their job because the police need
                   to use some level of force (not too much) in arresting people. The arrestee has NO privilege
                   to resist a lawful arrest and the officer is using a permissible amount of force. If the arrest


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                  is unlawful the police still have a defense as long as the arrest was made under an honest belief
                  that the arrest was lawful.
                     a. Citizens assisting Police have the same authority to arrest as the officer.
                     b. Private citizens arrest may use force but not DF and has much less authority than a law
                        official bc they have less training than police (not immune if the arrest is unlawful)
              2. Generally a law officer may use reasonable non-deadly force to effectuate/overcome resistance
                  to arrest. DF is restricted to felonies that involve threat of DF, or if delay of arrest would
                  cause SBI. (use of DF on fleeing felons is split among jurisdictions)
              3. New York v. Tanella: D killed suspect while attempting to escape for federal cocaine crimes
                  after police resistance. “It is not objectively reasonable for an officer to use DF to apprehend a
                  suspect unless the officer has probable cause to believe that the suspect poses a significant
                  threat of death/SBI to others.” (fact-sensitive). Ask what did the officer know that would
                  prevent him from using deadly force? (here the D saw the victim hit another officer and then
                  was assaulted by the D so it was clear the victim posed a threat of SBI to others). Not Guilty.
       J. Resisting Unlawful Arrest
              1. Common Law: allowed a person to use “reasonably necessary” short of deadly force
              2. MPC – no justification for force in resisting an unlawful arrest b/c better to submit and settle
                  problems in court in a civilized manner, not in the streets physically. (Majority)
              3. People v. Curtis – cannot resist an unlawful arrest. Basically submit to the arrest regardless
                  if it is unlawful b/c society does not want to encourage people from challenging arrests on
                  the street. (If you resist even if the arrest is invalid you could be liable for resisting)
       K. Public Duty Defense – allows a public employee who is performing a scope of their job to be
          protected from criminal liability while carrying out duties that are inherent in their position.
       L. Relationship Defense – use of reasonable force is permitted in certain circumstances to advance social
          goals. (parent using RF to discipline, a person using RF to stop a suicide or maintain order in a school)
       M. Necessity Defense – “choice of evils” decision – you can escape criminal liability in extreme
          circumstances if your choice was socially preferred, even though it violated the law. Necessity is
          premised on balancing evils (unlawful act must be a lesser evil than the harm seeking to avoid).
          Necessity is not available to a D if they create the situation which led to the necessity. Necessity
          usually arises from nature or CHANCE, so that the D has to choose the lesser of two evils that are
          presented and there is an absence of human purpose that creates the D’s choices.
              1. Factors:
                     a. The D is faced with a clear and imminent danger
                     b. Danger arose from chance and not created by D
                     c. D can reasonably expect their action will be effective
                     d. There is no legal alternative that will effectively abate the danger
                     e. Legislature has not precluded the defense by a clear choice
                     f. It is the lesser of two evils
              2. Commonwealth v. Leno: D operated a needle exchange program to provide clean needles to
                  drug users to reduce the spread of Aids. The Necessity defense instruction was not given to
                  jury b/c the danger that D sought to avoid was not clear and imminent, rather it was
                  debatable.
              3. State v. Romano: Necessity granted to D who was drunk driving bc he only did so to escape a
                  reasonable belief of potential assault with intent to kill and to remain in that position he
                  would have face a significantly greater harm. Policy is that every life is of equal value.
              4. Necessity generally will not work for homicide cases because of the policy that you should not
                  kill an innocent to save your life under any circumstances. (claiming you killed out of necessity
                  to save your own life when there is a threat to your life).
                  The MPC rejects this approach if there is a “net saving of lives”.

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               5.   Typically unsuccessful necessity arguments:
                       a. Political Protestors – seek to justify disobedience to law, such as trespass or property
                          destruction, as a means of expressing values they argue are more important than the
                          criminal laws they violate. Usually fails because there are typically other outlets of
                          communication available to the D.
                       b. Prison Escape – sometimes recognized as a necessity defense when the D claims they are
                          avoiding assault or rape but it is limited by imposing difficult conditions.
                               i.   Must be proof that threat was immediate and violent
                              ii.   Lack of time to make a proper complaint
                             iii.   Lack of time to resort to the courts
                             iv.    No use of violence in the escape
                              v.    An immediate reporting once safety is reached
       N. Duress (excuse defense) – Arises in the form of another persons threat that if the D not commit the
          crime then a threat is imposed on them. (Arises from coercion). MPC defines it as an immediate
          physical harm that overcomes the will of a person of reasonable firmness.
              1. Elements:
                       a. Duress applies only when the crime is committed b/c of the threat of an immediate harm
                       b. Harm threatened extends only to the actor or a close third person
                       c. Objective standard imposed that the threat must be sufficient to overcome the will of a RP
                               i.   Policy: so that duress would not excuse too many criminal acts
                       d. Not recklessly placing yourself in a position that would subject themselves to duress
              2. U.S. v. Contento-Pachon: guy answers ad to be driver and is forced to be coke mule. Court
                    determines that D presented credible evidence that he acted under an immediate and reasonable
                    threat of SBI with no opportunity to escape and the jury should be allowed to consider duress.
                       a. There is an Immediate threat
                       b. There is a well grounded fear that threat will be carried out
                       c. No reasonable opportunity to escape
              3. People v. Anderson: D convicted of 1st degree murder for killing a woman suspected of
                    molesting two girls, one of the girls was daughter of accomplice (the father). D argues that
                    father threatened to harm him if he did not participate in the killing.
                       a. Majority policy: resist killing an innocent person because your life is no more valuable
                          than an equally innocent person and you should refrain from harming anyone
                       b. Dissent: Every person of reasonable firmness can surely break at different points
                          depending on the stakes that are involved. (Ex: homicide can be the irresistible product of
                          coercion when the danger to a loved one is being threatened.)
       O. Incompetence – it is unfair to subject a mentally incompetent person to trial when they cannot
          meaningfully participate. The D must be able to understand the proceedings and be able to assist.
          A person can be forced to be made competent by administering drugs as long as its not dangerous and
          until it is determined that it does not work.
       P. Insanity – A person who commits a crime while mentally insane is not morally responsible and should
          not be punished. Why?... If a person does not have the free will to help what they have done, it is
          unfair to punish them because it will not be effective in deterring the behavior. There is a belief
          that the more effective punishment is by rehabilitation bc the criminal justice system does not have the
          ability or resources to deal with disabled. Sanity is usually presumed and is an affirmative D. This is a
          last chance defense b/c when you bring it up you are admitting that you committed the actual crime.
              1. Tests for Insanity
                       a. M’Naughten Test (cognitive) – test is based around that the D does not know the
                          difference between right & wrong. Insanity defense is limited to conditions that affect
                          conscious reasoning or knowledge. At the time of committing the act the accused was

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                        under such a defect from disease of mind that he did not know the quality of his act and
                        that it was wrong. This does not cover personality disorders (such as depression) b/c the
                        actor might know it is wrong even though it is still a mental defect.
                     b. Irresistible Impulse Test – (expands M’Naughten) – adds the excuse that conduct was
                        induced by an irresistible impulse and that the D knew what was going on but could not
                        resist. (Ex: covers personality disorders even when the D knew something was wrong but
                        could not resist their conduct)
                     c. Durham Test – allows for acquittal if the offense is the “product of a mental disease or
                        defect.” Broadened insanity defense too much. Fails to give fact-finder a standard to
                        measure for competency. So broad that it allowed for things like heroin addiction and
                        other self induced mental defects to be considered as insane.
                     d. MPC approach – provides a defense for a D who lacks substantial capacity to
                        appreciate wrong conduct or to conform his conduct to the requirements of the law.
                        Aimed as a middle ground between M’Naughten and Duram so that people with mental
                        defects get appropriate treatment but the protection of the community is paramount! A
                        mental disease caused by criminal/addictive behavior is not accepted.
              2. Problems: M’Naughten is too limited b/c it barred people who actually suffer from a mental
                  defect but still knew the difference between right and wrong. Claimed to be too narrow so
                  expert witnesses would stretch their evidence so that a D with mental problems would be found
                  insane. This becomes a matter of forcing the law and medicine to conform to each others
                  terms. After the MPC was adopted the Reagan assassination attempt led to an acquittal and we
                  reverted back to the M’Naughten test. Some jurisdictions have completely abolished insanity
                  which leads to a question of constitutionality.
              3. Untraditional Verdicts:
                     a. NGRI – Basically means he was insane when the crime was committed and the verdict
                        acts as a criminal acquittal but subjects D to post verdict assessment by mental health
                        officials to see if they need to be civilly committed
                     b. GBMI – Still punished by incarceration after or during they are attempted to be healed of
                        their mental capacity. Typically segregated in a mental health wing in prison.
              4. Commitment of Mentally Ill – Issue of civil commitments is that instead of or after sentence
                  the person may actually be committed for longer than their sentence. This is constitutional b/c
                  there is a right to protect the citizens of a threat to society while it is unjust to confine them to
                  prison. Mental rehabilitation is not aimed to punish but to heal. How would you advise your
                  client on what to do? (balance their interest with justice) Jones: you may be committed for the
                  period necessary to regain sanity or no longer pose a threat to society.
       Q. Intoxication
              1. Voluntary – your screwed
              2. Involuntary – Being forced to drink or not reasonably expecting a substance would be toxic.
                  Negates the element of MR in criminal statute.
       R. Diminished Capacity – Impaired mental condition, short of insanity, caused by intoxication, trauma,
          or disease and prevents a person from having the mental state necessary to be held liable for a crime.
       S. Mistake
              1. Mistake of Fact: Occurs when the error is about some fact in the case and may counter MR
                  element. Not a complete defense but can eliminate the MR. If belief is honest and reasonable
                  that the D actually thought the circumstances were innocent in nature. (does not extend to SL)
              2. Mistake of Law
                     a. If the statute requires the term “willfulness” which is a “voluntary intentional violation of
                        a known duty”


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                     b. Non-Publication/Inadequate Publication – a publication of the law that is erroneous. A
                        person is entitled to rely on statutes and rules so a D who relies on the lack of adequate
                        dissemination of the law may have to establish that he could not have acquired the
                        knowledge of the applicable law by exercise of due diligence.or a person who has the
                        authority of the law
                     c. Erroneous statement – many states authorize a reliance defense when a person, believing
                        conduct is not criminal, acts in a reasonable reliance upon an official statement of the law,
                        later determined to be erroneous, interpreted by a public officer or person charged by law
                        with responsibility of interpreting, administering, or enforcing the offense.
       T. Ignorance – Not a defense but exceptions exist when there is an actual mistake to the law.
       U. Infancy – takes into consideration the subjectivity of person of like age. People of a certain age may
          lack the capacity to commit a crime (culpability)




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X.      Inchoate Crimes
        A. General
            1. Inchoate crimes are preparatory ones that are aimed towards the prevention of the target crime for
               public safety while not punishing someone who is only thinking about committing a crime.
            2. Early detection also helps to identify those who are willing to engage in criminal activity.
            3. Also helps to discourage criminals from group activity which pose a greater risk than individual actors
            4. If the D commits the target crime, the D cannot be convicted of both the crime and the attempt
            5. If the D fails to commit the target crime, the D can be convicted of attempt as well as solicitation, etc
            6. Punishment for inchoate crimes are usually slightly lower than imposed punishment for the target crime
        B. Attempt – when the actor has taken significant steps towards the commission of the target crime they are
           mentally culpable for the full crime.
            1. Elements
                   a. MR: Typically this is a specific intent to commit the target crime (recklessness would be
                        difficult to apply since it is impossible to intentionally commit an unintentional crime)
                   b. AR: Purpose in attempt is to prevent conviction for “thought crimes” such as daydreaming and
                        minimizes the likelihood of mistaken convictions. Prevents inferring a MR when there is a lack
                        of a corroborating AR. Tests to determine how much of an act goes beyond mere
                        preparation will be enough to convict:
                        i.     Substantial Step (MPC & Majority) – did the D take a substantial step towards
                               commission of the crime that is strongly corroborative of an intent to commit the crime.
                                   Lying in wait, or searching for intended victim
                                   Enticing victim to go to place where D is contemplating crime
                                   Possession of materials to be used in commission that serve no lawful purpose
                                   Soliciting an innocent person to do any element of the crime
                       ii.     Dangerous/Physical Proximity Doctrine – did the act come close to the completion of
                               the object crime? (common law) This test focuses on how much is left to be done and the
                               standard is not met until the D is close to succeeding.
                      iii.     Indispensable Element – the attempt is incomplete if there is any aspect of the criminal
                               endeavor over which the actor has not yet acquired control
                      iv.      Probable Desistance - if in the ordinary and natural course of events, without interruption
                               from an outside source, it is likely to result in the crime intended. (The D will not desist)
                       v.      Abnormal Step – the D goes beyond the point where the normal citizen would think
                               better of his conduct and desist
                      vi.      Unequivocality Test – when the actors conduct, taken as a whole, manifests an intent to
                               commit the crime
                     vii.      Overt Act Approach – any positive act in furtherance of the attempt is sufficient (a very
                               minimal requirement)
            2. United States v. Williamson – D took two knives saying he was going to go hurt an officer and went
               looking for her. Court reversed guilty charge bc D was not close to finding the officer
                   a. Majority – Claims D did not take a “substantial step” bc he never got near the officer and did
                        not have to be stopped from attempting to inflict
                   b. Dissent – Says that the taking of the knife with the purpose to hurt the officer is enough of a
                        substantial step and the majority misinterprets this case and uses the dangerous proximity test.
                        It is clear that the D took a substantial step beyond preparation.
            3. Mandujano – D took money from federal agent to buy heroin but after failing to find his dealer he gave
               the money back. The court found that taking the money was a substantial step toward commission of
               the crime. Guilty.
            4. Anzalone – D obtained rifle and headed to tent where victim was known to be but was stopped. Guilty.


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   C. Impossibility Negating Attempt – Essentially doing everything possible to commit the crime but have
      mistaken the facts or the law and are unable to commit the target crime
       1. True Legal Impossibility – When the object that the actor has attempted to accomplish is not a crime
          at all even though the actor believed that it was. Usually a valid defense to attempt. (importing salt)
       2. Factual Impossibility – The D misperceives the facts, but if the facts were as the defendant
          believes them to be the D could accomplish the crime. Not a defense b/c the D’s MR is evil
          regardless of the impossibility. (D shoots at a dummy believing it to be a human)
       3. Hybrid Impossibility – When the D argues that the factual impossibility is actually legal: “It is
          impossible as a matter of law for shooting a dummy to be murder, therefore the object crime is
          legally impossible.” Sidesteps the reality that if the facts were as D believed them the object crime
          could have been completed.
       4. Inherent Impossibility – The D’s incompetence is so apparent and makes the attempt so harmless
          that it is labeled inherently impossible (trying to explode talcum powder, or attempted voodoo death)
       5. Cases:
              a. People v. Thousand – D thought the police officer was a underage girl and so although it was
                    factually impossible to commit the crime, since it would have been as the D believed them then
                    he could have accomplished the crime, he was guilty (he had a wrongful MR)
   D. Renunciation Defense to Attempt – An affirmative defense which must be Complete, Voluntary (due to
      change of heart but not valid if abandonment is done for postponement for a more opportune time), and
      Avoid Harm. Renunciation is NOT extended to criminals who get scared of getting caught.
   E. Solicitation – When the D tries to get another person to engage in criminal activity. Focuses on the
      risk of harm by the D’s acts to public. Punishes the encouragement of criminal acts and does not matter if
      they were successful. Punishes D’s effort to solicit regardless if the other person does not receive notice of
      solicitation. An attempted communication is enough (it does not have to be received).
       1. Policy:
              a. Aimed to reach those who try to tempt others into criminal acts
              b. Prevents the target crime from being accomplished
              c. Punishes people for subjecting the public to the risk of the commission of a crime
              d. Deemed dangerous bc solicitation typically leads to conspiracy which is considered very danger
       2. Elements:
              a. MR: Must act with the purpose of promoting or facilitating the commission of a crime.
                    Solicitor must communicate the goal of having the target crime committed.
              b. AR: Solicitation requires an effort by the solicitor to engage others in criminal activity. Such
                    methods include commanding, encourages, or requests another to engage in specific criminal
                    conduct. Forms of encouragement include monetary, persuasion, or by threat.
       3. Other Situations:
              a. Innocent Agents – Since purpose of solicitation is to bring someone into the criminal fold, if a
                    person uses an innocent agent (someone unaware they are performing a criminal act, such as a
                    valet unknowingly bringing a car to a thief) the criminal did not solicit (prob. larceny by trick)
              b. Incompetent Person – generally the solicitor is guilty even if the solicitee was legally
                    incapable of being convicted of the crime. (soliciting to the insane or to the young)
              c. Solicitee lacks Characteristic – The D has the MR to solicit but it is factually impossible for
                    the solicitee to make the crime possible b/c they are not what the D believes them to be. (D
                    believes a person is a judge and tries to bribe them but the person is not a judge).
              d. First Amendment Concerns: The 1st amendment protects freedom of speech but does not
                    extend to protect speech that advocates crime and violence. The constitution guarantees free
                    speech and the states cannot forbid it except where such speech is directed to inciting or
                    producing imminent lawless action and is likely to incite or produce such action.


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XI.      Complicity – Accomplice liability – a person can be liable for anothers crime if they have the appropriate
         MR and take some action. The person has the intent to assist in the primary part of the crime and intends that
         the accomplice complete the crime.
         A. Modern Reasoning for Complicity:
               1. Civil Agency – you consent to be bound by the actions of another to whom you give authority for this
                  purpose (Majority) – You are accountable for all actions you are involved in planning.
               2. Forfeited Personal Identity – if you choose to aid in a crime you forfeit your right to be treated as an
                  individual
         B. Common Law:
                   1. Principals of the first degree – a person who actually committed the offense (bank robber)
                   2. Principals of the second degree – aided and abetted and were present (actually or
                        constructively) at the scene (getaway driver)
                   3. Accessories before the fact – aided and abetted beforehand (mastermind of robbery)
                   4. Accessories after the fact – aided after the crime was committed (harbored robber)
         B. Modern Aiding & Abetting Statute:
                   1. Treat everyone who participated before or during as a principal and assign different sentences
                        based on moral blameworthiness
                   2. Accessories after the fact are still treated differently
                   3. Aiding is the actus of physical help and abetting is the mentes of psychological help
                   4. The accomplice is not charged with a separate offence called “complicity” or “aiding” but rather
                        are charged with the head crime committed by the principal party.
         C. Cases:
                   1. Standefer v. US: An accomplice can still be liable under modern Aiding & Abetting statutes even
                        if the principal was acquitted. Everyone who participated is a principal.
                   2. State v. Gladstone: Overturns a conviction of aiding and abetting for D who merely told
                        undercover cop the name and address of someone he thought would sell the cop marijuana bc
                        there was no prior communication between the D and the seller of drug. Strange bc it sounds
                        more like conspiracy than aiding & abetting.
                   3. US v. Medina-Roman: Aiding & abetting requires knowledge + facilitation. Knowledge and mere
                        presence by themselves are insufficient. “Associate with the venture, participate in it as something
                        he wishes to bring about, seek by action to make it succeed.” -Learned Hand.
                   4. Luciano-Mosquera: D in same place as others w/illegal gun not accomplice bc knowing about the
                        firearm is not enough, the D lacked taking some action.
         D. MPC Complicity (§2.06)
                   1. A person is guilty of an offense if it is committed by his own conduct or by the conduct of another
                        person for which he is legally accountable, or both.
                                a. Legal accountable if he
                                      i.   Solicits, aids, or agrees to aid with “purpose of promoting or facilitating the
                                           commission,” or
                                     ii.   Using an innocent or irresponsible person, or
                                    iii.   Failing to perform a legal duty w/intent to promote or facilitate a crime
                   2. Rivera v. State: MPC influenced court did not require any prior arrangement like the D in
                        Gladstone. All that is required is that the one person aids the other in the commission of the
                        crime. No emphasis on any agreement btw two brothers to kill the guy, it was sufficient that they
                        both acted with the same purpose (to rob and kill) (unlike Gladstone where the ct requires some
                        type of arrangement between parties)

         E. Mens Rea for Complicity


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           1. Complicity liability exists if you have the MR required to be guilty of the particular crime and
              provided you have the intent to assist the principal in the act (don’t have to intend the result)
          2. For conduct offenses the person must act with the purpose of promoting or facilitating commission
              of the offense
          3. Natural and Probable consequences
   F. Post-Crime Liability
          1. Common Law obstruction of justice – helping a felon escape arrest, punishment, or trial.
              Typically punished more leniently than the principal felon.
          2. MPC’s Hindering statutes:
                     a. Actus: Harbors, conceals, provides aid, destroys evidence, tampers w/witness, warns of
                        arrest, or volunteers false information
                     b. Mens: w/purpose of hindering apprehension, presecution, conviction, or punishment of
                        another for a crime. (you are okay if you physically help but are unaware of the crime)
          3. MPC’s compounding: it’s a crime to receive money for not reporting crime
                     a. Affirmative defense if the money paid was done as a punishment in place of reporting the
                        crime and it wasn’t egregious
          4. Common Law Misprison of Felony – you don’t have to inform officers of what you know but
              you can’t lie once you start talking. Ex: you don’t have to tell cops if you see a crime being
              committed, however it is illegal to conceal information that you do know when asked.




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