Criminal Law Outline
I. What is a Crime?
A Crime is an act or omission and its accompanying state of mind, which, if duly proven to have
taken place, will incur a formal and solemn pronouncement of the moral condemnation of the
community. A Crime is conduct that is so offensive to society that it is punishable by law.
II. Elements of a crime
A. Actus Reus – The actual “act” constituting the crime
B. Mens Rea – The intent to commit the crime (required mental state)
C. Attendant Circumstances – The status of the victim or anything else that doesn’t have to do
with the actual “act”
D. Result – Harm caused
III. Trial By Jury
The 6th Amendment guarantees the right to a jury trial for all crimes carrying a term of more than
six months imprisonment.
V. Proof of Guilt At Trial
A. Proof Beyond A Reasonable Doubt – The key protection for defendants against improper
conviction is the burden on the prosecution to prove guilt beyond a reasonable doubt. This
standard of proof applies regardless of whether the criminal case is a felony, misdemeanor, or
VI. Differences between Criminal Trials and Civil Cases
In Criminal Cases:
1. There is a presumption of ’s innocence (in civil cases it doesn’t matter)
2. There is a requirement of proof beyond a reasonable doubt (in civil cases proof needs
to be 50.00000000001% more convincing than the other party.)
3. Defendant has the right not to take the stand
4. Evidence that is obtained illegally by the police cannot be used.
Justification of Punishment
A. Two Questions - In deciding whether to punish someone, the court asks:
1. Is the conduct justified/socially desirable?
2. Is the conduct excusable?
B. Punishment – the intentional infliction of pain
II. Why Punish?
A. Theories of Punishment
1. Utilitarianism – punishment serves useful purposes/benefits society.
Deterrence, Reform, and Incapacitation are Utilitarian Justifications of
Bentham argues for Utilitarianism because punishment is evil and should
only be used when the evil caused by the mischief > the evil caused by the
A number of scholars (Kant especially) argue that utilitarian views are wrong
because they are not tied to individual blame.
2. Retribution – punishment is justified because people deserve it.
Kant argues for retribution on the basis that people should never be used as a
means to an end.
Stephens argues that the government should promote community hatred of
criminals so that there will not be personal retribution.
Dressler argues that Stephens’ view is utilitarian, not retributive because it
promotes societal good.
B. Justifications of Punishment
This is a utilitarian justification of punishment based on the idea that punishment
is used to deter the commission of future offences. The premise of a deterrence theory is
that s weigh the advantages and disadvantages of their acts before committing a crime.
a. General Deterrence – punishment or the threat of punishment will prevent
[other] people from committing crimes.
People are thinking rationally
Crimes are pleasurable
b. Specific Deterrence – the fear of the punishment will prevent an individual
from committing the same crime again.
c. Criticisms of the Deterrence Theory
It is not effective for many crimes because they are emotionally
driven rather than being a rational decision.
Improperly punishing someone as a means to and end is immoral.
This is a utilitarian justification that is based on the premise that punishment will
“remedy” personal deficiencies that caused a person to commit a crime and as a result of
the punishment they will want to commit crimes less.
a. Criticisms of the Reform/Rehabilitation Theory
Society’s resources are wrongly allocated to helping those who least
It seeks to “remake” human beings with the idea that society knows
what is “for their own good.”
It assumes that all people who commit crimes are sick and can be
reconditioned not to commit further crimes.
This is another utilitarian theory that assumes that prison and death remove the
criminal from society temporarily and permanently, respectively, so that they cannot
cause further harm to society.
a. Criticisms of the Incapacitation Theory
It is too costly
It is ineffective in stopping habitual offenders
It doesn’t prevent the criminal activities that may continue while the
criminal is in prison.
Retribution says that punishment should be imposed when someone commits a
crime because they deserve it. The punishment gives the his “just desserts” for having
committed the crime. This is referred to as “an eye for an eye.” (Kant)
a. Look at Two Things with Retribution
1. Retribution imposes a moral obligation to punish bad conduct
regardless of whether there is a social purpose to the punishment.
2. Retribution imposes a moral obligation not to punish if the crime is
b. Positive Retribution - you must punish the guilty
1. Assaultive Retribution – we punish to help society (because
owes a debt to society that must be paid) w/o any consideration
of the criminals rights or best interests.
2. Protective Retribution – not only does society have a right to
punish criminals, but criminals also have a right to be punished
in order to clear their consciences that they have repaid their debt
c. Negative Retribution – it is wrong to punish an innocent person
d. Criticisms of Retribution
It intentionally inflicts pain even when it cannot be shown that it will
promote the greater good
It legalizes vengeance
Uses emotion, not reason, to determine punishment
It punishes those who are forced to commit crimes due to unfair
e. Retribution v. Deterrence
Deterrence looks forward to determine whether punishment will
discourage future crimes and Retribution looks backward to
determine whether punishment is justified.
Deterrence is premised on a belief that people will act in their own
interest unless the law imposes sufficient limits. Retribution is
based on the belief that people possess free will to do what is right
and therefore should be punished when they choose to violate laws.
C. Who Should Be Punished?
Regina v. Dudley & Stephens
Facts: Dudley and Stephens killed Parker, with whom they were stranded on a lifeboat, in order
to survive off Parker’s remains after having run out of food and water.
Rule: Homicide may not be excused when the person killed is an innocent, unoffending victim.
Comments: This case is more important for its discussion of the justifications of punishment.
Deterrence was not a purpose of the punishment b/c these circumstances were rare and the
likelihood that a facing certain death would risk future conviction was nonexistent.
Rehabilitation and incapacitation were also inapplicable because it was unlikely that s would
find themselves in the same circumstances again and they posed not danger outside of that
setting. Ultimately, the court convicted the s on a retribution theory b/c it was necessary to send
the message the ’s conduct was wrong.
D. How Much Punishment Should Be Imposed?
People v. Du
Objectives of Imposing a Sentence:
1. To protect society (utilitarian – general deterrence)
2. To punish for committing a crime (retribution)
3. To encourage to lead a law-abiding life (utilitarian – reform/specific deterrence)
4. To deter others (utilitarian – general deterrence)
5. To isolate so she can’t commit other crimes (utilitarian – incapacitation)
6. To secure restitution for the victim (retribution)
7. To seek uniformity in sentencing (retribution)
Comments: The court in Du suspended Du’s sentence to probation because they focused on
utilitarian justifications, and the retributive factors were the only ones that supported a stricter
sentence. However, the court said that if probation was not warranted, the strictest sentence
should be applied because a lesser sentence would do no good under utilitarian principles of
United States v. Jackson
Facts: When Jackson committed armed robbery at a bank thirty minutes after he was let out of
prison as part of a work release program, he was sentenced, as a career criminal, to life in prison
without the possibility of parole.
Debate – Majority: Judge Easterbrook believes that since Jackson is a career criminal and
therefore any sentence could be imposed w/o parole. Easterbrook believes that sentencing
Jackson to life will incapacitate him to prevent further harm to society and that it will promote
general deterrence, which a lighter sentence would not do as effectively.
Concurrence: Judge Posner believes that a life sentence is too harsh; he thinks that a sentence of
20-30 years will still incapacitate Jackson long enough to protect society. Also, he argues that
anyone who would not be deterred by 20-30 years would not be deterred by life, so the stricter
sentence serves no purpose. Posner also advocates specific deterrence, saying that it is extremely
unlikely that Jackson will commit further crimes when he is 60.
III. What to Punish
A. States have the right to punish anything they believe is morally wrong that people are not give
a right to do under the constitution.
Bowers v. Hardwick
Issue: Does Georgia have the right to criminalize the right to have consensual homosexual sex?
Conclusion: In a 5-4 decision the USSC said yes because there is no constitutional right to have
homosexual sex and it can therefore be punished under state law.
B. The Drug Legalization Debate
1. Schmoke – Drugs should be decriminalized
a. Drug addiction is a disease
Drug addiction is a public policy issue and should not be a criminal
Deterrence does not work on drug users b/c it is a disease
Prohibition does not work b/c addicts cannot stop using drugs and
therefore prohibition creates the more dangerous illegal market.
b. Illegal Market
Creates more crime b/c drugs are more expensive than they would be
in a legal market and so people commit crimes to get money.
Drugs available on the illegal market are more concentrated and
No matter how much you limit illegal drugs, the supply is so much
larger than the demand that the illegal market will still exist.
Reducing the supply does not work, you need to reduce the demand
Drugs should be legalized to reform addicts w/ treatment w/o
This will lead to a lesser supply and will get rid of the illegal market
2. Lawn – Drugs should remain illegal
a. Drugs should not be decriminalized
Drugs are not bad b/c they are illegal, they are illegal b/c they are
If you make drugs legal, they will become more widely used
Making drugs less $ will increase crime rather than decrease it.
b. Illegal Market will still exist
Drugs will not be legalized for all ages (like alcohol) so there will
still be a black market
c. Justification for Punishment of drug users
Deterrence – if drugs are legal, more people will use them, if drugs
are illegal, less people will use them
Elements of Just Punishment
I. Elements of a Crime
A. Actus Reus (physical act)
B. Mens Rea (culpable mental state)
C. Attendant Circumstances (status of the victim, time of day, location, etc.)
D. Result (harm caused)
II. Actus Reus
You can’t be punished for thoughts; the thoughts need to be accompanied by an act.
Actus Reus is the doing aspect of a crime, it can be a positive act (such as hitting
someone) or an omission (a failure to act when there is a legal duty to do so).
B. Voluntary Acts
A person is not guilty of an offense unless his act is voluntary.
1. Martin v. State – Criminal liability must be based on a voluntary act or omission
Martin v. State
Facts: Officers on to a highway forcibly took Martin, where he manifested a
drunken condition. He was convicted of public drunkenness, which he appealed.
Rule: Criminal liability must be based on conduct that includes a voluntary act or
omission to act, being involuntarily forced to perform the act is not enough to
produce criminal liability.
Comments: In this case, being involuntarily taken by the police to the highway
did not suffice to fulfill the actus reus of appearing in a public place b/c it wasn’t
voluntary. (The voluntary requirement was presumed)
2. State v. Utter – An “act” within the definition of homicide must be a willed movement
State v. Utter
Facts: Utter stabbed his son to death and claimed as a defense that it was a
conditioned response, contending that he was incapable of committing the
culpable act b/c it was involuntary.
Rule: An “act” within the definition of homicide must be a willed movement.
Comments: The court says that an act done while unconscious in really no act at
all, and there can be no criminal liability, but when the state of unconsciousness
is brought on voluntarily (with drinking in this case) then it is not a complete
a. In order to be guilty of an offense, it must: (§2.01(1))
(1) Include a voluntary act OR
(2) Omission to perform an act of which the actor is capable.
MPC only requires that one of the acts involved in the crime be
voluntary, and therefore Martin would be guilty b/c he voluntarily
manifested a drunken condition.
b. Involuntary Acts in the MPC: (§2.01(2))
(1) Reflex or convulsion (ie: State v. Utter – Utter would not be guilty
under theory of Conditional Response)
(2) Bodily movement during unconsciousness or sleep
(3) Hypnosis or under hypnotic suggestion (most J/D have not adopted
(4) Bodily movement not otherwise the product of the effort or
determination of the actor, either conscious or habitual. (ie: Martin v.
c. Habit (2.01(2)(d)) – actions done by habit are considered voluntary acts.
d. Possession (2.01(4)) – possession is not an act unless the possessor knows of
his control of the item for a sufficient period to have been able to terminate
4. Common Law
Common Law was consistent with the MPC in that only one act had to be
1. General Principles
In general, there is not legal duty to help another facing harm and therefore the
failure to act only constitutes an actus reus when there is some other duty to act.
a. Four Cases in which Omission is a Breach of Duty (Jones v. US)
(1) Statute imposes duty
(2) Certain “Special” Relationships (ie. Parent-child, husband-wife)
(3) Contractual Duty
(4) Voluntary assumption of care and seclusion where person is the only
one who could help.
b. Policy Issues With Omission
(1) Omission is more ambiguous than an act
(2) Difficulty arises in line-drawing
(3) You can make matters worse by intervening at times
(4) Acts cause harm, omissions only remove benefits
c. Model Penal Code
Omission is a crime when (2.01(3))
(1) The definition of a crime includes the omission as part of the
(2) There is a legal duty to act
People v. Beardsley
Facts: was having an affair and neglected to get medical treatment for
the woman when she took a fatal overdose of morphine.
Rule: While it is the moral duty of every person to help others in danger,
if there is no legal duty due to save a person’s life, one cannot be guilty
of manslaughter. (no legal duty in this case b/c no special relationship)
Kitty Genovese case – a woman was stabbed to death while
numerous witnesses watched and failed to help. A spectator’s failure
to assist (even to call the police) was not criminal.
2. Distinguishing Acts from Omissions
Doctors only have a legal duty to act when their treatment is
Removing life support and IV’s are an omission, not an act
Omitting treatment, not affirmatively acting
Barber v. Superior Court
Facts: When Barber’s patient was taken off life support and IV nutrition, the
patient died and Barber (doctor) was charged with murder.
Rule: A doctor is under no duty to keep a patient alive through forced respiration
and nutrition. (unless family objects)
D. Social Harm
Social Harm is the negation, endangering, or destruction of an individual, group, or state
interest, which is deemed socially valuable.
1. Two Types of Crimes
a. Conduct Crimes – the law prohibits specific dangerous behavior (ie: drunk
b. Result Crimes – the law punishes for an unwanted outcome, such as the death
of another person
Actus Reus Summary
General Rule All acts must be voluntary
Involuntary Acts Involuntary acts include (MPC):
1. Reflex or convulsion
2. Unconscious or sleep movements
3. Hypnosis (some J/D)
4. Bodily movement of by another
Positive Act Physical acts by ; Must be voluntary
Omissions Failure to help is not an act unless there is a legal duty to do so by:
2. By Status Relationship
3. By Contractual Relationship
4. By voluntarily assuming the care of another
III. Mens Rea
Usually, a person is not guilty unless some state of mind accompanies an act. Different
crimes require different mental states, but generally, in order for a to be guilty of a crime, it
must be proven that they had a “guilty mind”.
B. Common Law Terminology for Mens Rea
1. Maliciously – realizes the risks their conduct creates and engages in the conduct
anyway. (recklessness under MPC)
Regina v. Cunningham
Facts: removed the gas meter from the basement of his home and the woman next door
was partially asphyxiated. knew that she lived next door but didn’t realize she could be
hurt. was convicted of unlawfully and maliciously threatening the life of the woman.
Rule: Malice requires either an actual intention to do the particular kind of harm that
was in fact done or recklessness as to whether such harm should occur or not.
Comments: in this case was negligent, so his conviction was reversed.
2. Intentionally – In some cases it means that has the purpose to cause a specific
harmful result, in other cases, only needs to be aware that his acts may cause a
specific result. (purpose and knowledge under MPC)
People v. Conley
Facts: In a fight outside a party, hit another man in the face with a wine bottle,
breaking his jaws, other facial bones, and some teeth.
Rule: A person who, in committing a battery, intentionally or knowingly causes great
bodily harm or permanent disability or disfigurement commits aggravated battery.
Comments: In this case, the intent/knowledge was implied by ’s actions. The
prosecution did not have to prove intent to cause the specific harm, only the intent to
cause permanent disability. The court presumes that intended to inflict permanent
damage b/c that is the normal consequence of smashing a bottle in someone’s face.
a. General Intent - any mental state, whether expressed or implied, that relates
solely to the acts that constitute the criminal offense.
b. Specific Intent – a special mental element that is required above and beyond
any mental state required with respect to the actus reus of the crime.
(1) An intention to commit some future act separate from the actus reus
of the offense. (“assault with the intent to rape”)
(2) An offense may require proof of a special motive or purpose for
committing the actus reus. (“offensive contact upon another with
the intent to cause humiliation.”)
(3) Some offenses require proof of the actor’s awareness of an attendant
circumstance. (“sexual intercourse with someone known to be
under the legal age.”)
3. Negligently – Not exercising the standard of care a reasonable person would under the
circumstances. Criminal negligence has a higher standard than civil negligence.
4. Willfully – It can mean doing the act with the purpose of violating the law (purposely
under MPC), intentionally doing an act knowing its likely consequences (knowingly
under MPC), or intending an act that causes harm.
C. MPC Approach
1. Four Levels of Mens Rea (§2.02 (2))
a. Purposely – it is ’s goal or aim to engage in particular conduct or achieve
Person is aware that their action will cause a particular result
Person knows, believes, or hopes that any attendant circumstances exist.
b. Knowingly - is virtually or practically certain that their conduct will lead to
a particular result.
Person is aware of the nature of their conduct.
Person is aware of the attendant circumstances
Knowledge is proven by proving Purpose
c. Recklessly - realizes there is a substantial and unjustifiable risk their conduct
will cause harm but consciously disregards the risk and performs the act
Recklessness is proven by proving Purpose or Knowledge
d. Negligently - acts in spite of a risk that a reasonable person would be aware
of and he should be aware of but may not be.
Negligence is proven by proving Purpose, Knowledge or Recklessness
2. Difference Between Purpose and Knowledge
With both purpose and knowledge, the actor is aware that their conduct will
cause a result.
But, with purpose, there is a desire/intent to cause a result.
3. Difference Between Recklessness and Negligence
A risk exists and a reckless person knows of the risk but acts anyway, a
negligent person may not know of the risk but they should have known
based on what a reasonable person would have foreseen.
4. Default Mental State – according to MPC §2.02(3)¸ if the law does not set forth the
level of culpability required, the mens rea element is established if a person acts
purposely, knowingly or recklessly.
5. Material Elements – Unless otherwise stated, the mens rea element applies to all the
material elements of the crime.
D. Knowledge of Attendant Circumstances
1. State v. Nations – To “knowingly” engage in criminal conduct, must have actual
knowledge of the existence of the attendant circumstances which constitute the
State v. Nations
Facts: owned a bar where police found a 16 year old girl dancing for tips.
Rule: To “knowingly” engage in criminal conduct, must have actual knowledge of the
existence of the attendant circumstances which constitute the crime.
Comments: This only applies in a minority of J/D, most J/D have adopted the MPC
approach that a high probability of the existence of an attendant circumstance constitutes
2. MPC (§2.02(7)) – Knowledge is established if a person is aware of a high probability
that an attendant circumstance exists. (willful blindness is not a defense).
E. Strict Liability Offenses – offenses for which no mens rea element is required.
1. Public Welfare Offenses (liquor laws, narcotics laws, traffic laws, etc.)
a. US v. Cordoba –Hincopie - criminal liability is permitted to attach without
regard to fault in instances in which the actor’s conduct involves minor
violations of public welfare laws.
b. Staples v. US – strict liability usually only applies to public welfare crimes
that have mild punishment.
Staples v. US
Facts: had a rifle that had been modified to be capable of fully automatic fire,
and he was convicted of violating the NFA. claimed that he did not know of
the rifle’s firing capacity.
Rule: The NFA is not a public welfare statute that is subject to SL b/c there is a
harsh penalty, which leads us to believe that Congress did not mean to get rid of
the mens rea element.
2. Statutory Rape
a. Garnett v. State – a good faith mistake is not a defense to a SL felony.
Garnett v. State
Facts: was a 20 year old, mildly retarded man who had sex with a 13 year old
girl who he believed was 16.
Rule: A good faith mistake is not a defense to a SL felony (in MD)
Comments: Many people feel that criminal law should not deal with SL crimes
b/c there is no justification of punishment (no deterrence factor and no moral
3. MPC Approach
MPC rejects the concept of SL crimes and requires some form of culpability
for each material element of and offense under § 2.02(1).
However, MPC allows SL for violations that cannot result in imprisonment
or probation but may result in fines - §2.05
F. Mistake and Mens Rea
a. Mistake of Fact – an unintentional mistake as to a key fact in the case
(negates mens rea element)
b. Mistake of Law – an error involving a misunderstanding or incorrect
interpretation of the law.
2. Common Law
a. Mistake of Fact – always a defense for specific intent crimes, but only a
defense for general intent crimes if reasonable.
b. Mistake of Law – never a defense.
a. Mistake of Fact (§2.04(1)) – always a defense, whether reasonable or not
because it negates the required mens rea element of a crime. If makes an
honest mistake, they are not guilty.
b. Mistake of Law (§2.04(3)) – is a defense when:
(1) The statute is not known to the actor
(2) acts in reasonable reliance on an official statement of the law.
(3) Mistake negates the mens rea for the crime (§2.01(1))
People v. Navarro
Facts: was charged w/ grand theft for taking four wooden beams from a construction
site that he claims he didn’t know were stolen. argued that a good faith mistake of fact
was a defense, even if it was unreasonable.
Rule: If one takes personal property with the good-faith belief that the property has been
abandoned, he is not guilty of theft, even where the belief is unreasonable.
Comments: Basically, this case says that an unreasonable mistake of fact (or law) is a
defense to a specific intent crime when it negates the required mens rea of the crime.
People v. Marrero
Facts: was charged w/ illegal firearms possession and he argued that he mistakenly
believed himself to be exempt from the statute b/c he was a peace officer.
Rule: A good faith mistake as to the meaning of a criminal statute is no defense to a
violation of the statute. (In NY)
Comments: The majority in this case said that mistake of law was not a defense unless
the law itself was wrong or the interpretation was made by someone who’s job it is to
interpret the law. It was not ’s job to interpret the law so mistake of law is not a
defense. The dissent argues that this interpretation of the law never allows for a mistake,
it only allows for correct interpretations of laws that are later found to be incorrect.
Regina v. Morgan
Facts: told 3 friends that his wife would be ok w/ them having sex w/ her and that she
would struggle, but only b/c that was the way she liked it. 3 friends were charged with
rape after the wife said she didn’t consent and they argued that an honest but
unreasonable mistake of fact was a defense.
Rule: Since honest belief negates intent, honest belief is a defense whether it is
reasonable or not
IV. Proportionality of Punishment
A. General Principles – punishment should be proportional to the seriousness of the crime.
1. Retributive Principles – the punishment should be proportional to the crime and the
moral blameworthiness of the criminal.
2. Utilitarian Principles – the main utilitarian argument is that the punishment for the
greater offences should be severe enough compared to the lesser offences that it
will induce to choose the lesser offence.
B. Constitutional Principles
1. Coker v. Georgia – death is a grossly disproportionate punishment for rape and is
therefore prevented by the cruel and unusual punishment provision of the
Coker v. Georgia
Facts: escaped from prison, committed armed robbery and rape, was arrested again,
tried, convicted, and sentenced to death by electrocution for the commission of rape.
Rule: A sentence of death is grossly disproportionate and excessive punishment for the
crime of rape and is therefore constitutionally forbidden as cruel and unusual punishment.
Comments: A punishment is generally considered to be excessive and unconstitutional if
it makes no measurable contribution to acceptable goals of punishment and hence is
nothing more than the purposeless and needless imposition of pain and suffering. This
was the view of the majority in reference to death as punishment for rape, they felt that
rape was not as final as murder and shouldn’t have as strict a punishment. However,
some of the justices in this case felt that rape was severe enough a crime to constitute
death as punishment.
2. Solem Factors – judges should look at the following factors to determine
(1) Gravity of the offense v. Severity of the punishment
(2) Penalties imposed w/in the same J/D for similar crimes
(3) Penalties imposed in other J/D for the same crime
3. Harmelin v. Michigan – the 8th amendment provides no proportionality guarantee
Harmelin v. Michigan
Facts: was sentenced to a mandatory term of life in prison for possession of cocaine,
and he appealed the sentence on the ground that it constituted cruel and unusual
punishment w/in the meaning of the 8th amendment.
Rule: The 8th amendment contains no proportionality guarantee.
Comments: This case (Scalia) overrules Solem and says that there is no proportionality
guarantee under the 8th amendment, and it distinguishes Coker by saying that “death is
different.” Scalia feels that the Solem factors fail b/c there is no objective standard to
determine gravity and it interferes w/ state’s sovereignty.
4. Kennedy’s Concurrence in Harmelin – 4 principles used to determine punishment
(1) Determining punishment severity is the job of the legislature, not the courts
(2) Nothing in the 8th amendment makes states use a particular justification for
punishment (retribution, deterrence, etc.)
(3) States’ sovereignty will result in differences w/punishment
(4) Proportionality review should be based on objective standards
Kennedy feels that for severe crimes, except death, there should be no
proportionality review, but for less serious crimes proportionality review is
ok. (This is what Solem says according to Kennedy)
V. Legality of Punishment
A. The Requirement of Previously Defined Conduct – It is illegal to punish people for crimes
that are not explicitly forbidden by the law.
1. In General - A person may not be punished unless that person’s conduct was defined
as criminal before the defendant acted.
2. Constitutional Prohibition of Bills of Attainder or Ex Post Facto Laws – Article I,
Sections 9 and 10 of the Constitution prohibit punishing a person for an offense that
was not created until after the defendant’s act.
3. Due Process – Requires notice before a person may be convicted of a crime.
Commonwealth v. Moochan
Facts: made a number of obscene phone calls to a woman he did not know and was
convicted of a crime even though the conduct was not expressly prohibited by statute.
Rule: Any act is indictable at common law which from its nature scandalously affects the
morals or health of the community.
Comments: The test for previously defined conduct is not whether precedents can be
found in books, but whether the alleged crimes could have been prosecuted at common
law. Many J/D have explicitly amended criminal statutes to abolish common law
offenses, but some still look at common law.
Keeler v. Superior Court
Facts: assaulted his ex-wife and caused the death of her unborn child. He was charged
with murder. Court looked at common law to determine the meaning of a human being.
Rule: An unborn but viable fetus is not a “human being” w/in the meaning of the CA
statute defining murder.
Comments: The court felt that ruling that a fetus is considered a human being under the
murder statute would violate ’s right of due process b/c the first element of due process
is fair warning of the act which is made punishable as a crime. After this case, many J/D
changed their murder statutes to include fetuses. The dissent argued that ’s intent was
to kill the fetus and he therefore realized it was murder.
B. The Values of Statutory Clarity
1. Unconstitutionally Overbroad or Vague Statutes – statues must be clear enough to
give reasonable notice that their actions will be considered criminal.
In Re Banks said that a statute is not overbroad when there is a constitutional
way to interpret the statute.
2. Analysis of Vague Statutes
a. Look at the common law meanings of terms
b. Look at the statutory history of the law
c. Look at prior judicial interpretation of the statute
In Re Banks
Facts: The trial court held that the state’s peeping tom statute was unconstitutionally
vague, so could not be convicted and the decision was appealed.
Rule: A criminal statute must be sufficiently definite to give notice of the required
conduct to be avoided and to guide the judge in its application and the lawyer in
defending one charged with its violation.
Comments: In this case, the court decided that the statue had been sufficiently narrowed
by judicial interpretation to give it a constitutional interpretation that could be used to
Papachristou v. City of Jacksonville
Facts: was arrested while driving in her car and was charged with “prowling by auto”
under a vagrancy statute argued that it was unjust to punish people under this law
because it was overbroad.
Rule: Vagrancy statues will be held unconstitutionally void for vagueness if they fail to
give adequate notice of impermissible conduct and allow discriminatory enforcement.
Comments: This statue was so broad that it included innocent activities, and it was
therefore unconstitutional because it provided no clear standards of prohibited conduct
and allowed arbitrary enforcement.
A. General Principles
Biggest issues with rape are consent and resistance by “force”
Many people look at rape law as law that is made by legislators (men), interpreted by
judges (men) and made to protect women.
B. Common Law
Rape at common law was a property crime and the injury in rape was an injury to
men. (father or husband)
Rape was defined as “unlawful sexual intercourse with a woman without here
consent by force, fear, or fraud.”
At common law, and in the MPC §213.1, a husband cannot be guilty of raping his
C. Why Punish Rape Separately – Feminist Perspectives
1. Protects Sexual Autonomy – this is the argument that punishing rape separately
benefits women b/c it gives a woman the right to choose who she has sex with.
2. Sustains Male Dominance – this is the argument that punishing rape separately
oppresses women because it ensures male control over women’s sexuality.
II. Actus Reus
A. Forcible Rape
1. General Principles
a. Rationale for the “force” requirement – In order to establish that the victim
did not consent, many J/D require that act with force. “Force” can be
proven by the victim’s resistance to the sexual intercourse.
b. Hazel v. State – 2 ways to prove force
(1) Active resistance overcome by force
(2) Threats of force or threats to safety preventing resistance.
Threats of safety are defined as threats of eminent bodily harm, and
Hazel says that an objective standard should be used – look at what a
reasonable person would believe.
b. Rusk v. State – in order to commit rape, a perpetrator must obtain the victim’s
compliance by force or threat of force. (uses Hazel factors)
Rusk v. State
Facts: A woman pressed rape charges against (who she met at a bar)
contending that, although she did not resist him, she feared for her safety if she
did not consent to sex with him.
Rule: To commit rape, a perpetrator must obtain the victim’s compliance by
force or threat of force.
Comments: Some critics of the “force” element say that this requirement puts
the victim in the position of having to take life-threatening steps to later prevail
in a prosecution of the rapist. This court said that there was not enough evidence
of force to impose a reasonable fear in the victim, and the MD SC later reversed
and reinstated the jury verdict of a conviction saying that the reasonableness of
her fear was a jury question.
c. Focusing on the Acts of the Victim – the force requirement moves the focus
of a rape trial to the actions of the victim (whether she actively resisted) and
away from the actions of the rapist.
1. Why focus on victim’s acts?
Force is additional evidence of non-consent
2. Why focus on resistance?
Resistance proves that the sex is not consensual and that
force is used.
Resistance proves two elements of the crime of rape.
d. State v. Alston – fear to resist based on previous threats and violence is a
general fear and is not sufficient to prove force at the time of the rape. To
establish a sufficient fear that prevents you from resisting sex, it has to be
based on force or threats of force at the time that the rape occurred.
State v. Alston
Facts: contended that his rape conviction had been improper because the
prosecution had not proven that he used force against his ex-girlfriend in order to
get her to consent or to overcome her ability to resist.
Rule: Use of actual or constructive force (implied force that prevents victim from
resisting) to procure victim compliance is an element of rape.
Comments: Although the court found sufficient evidence that the victim did not
consent, the victim’s general fear of based on his previous threats and violent
conduct was insufficient as the basis for a reasonable fear that would prevent her
from resisting at the time of the rape. (in order to prove constructive force). It
seems unlikely that the same result would occur today with the emphasis that is
put on abusive relationships.
e. MPC approach (§213.1(1)) – a man who has sexual intercourse with a
female, not his wife, is guilty of rape if:
(a) He compels her to submit by force or threat of imminent death,
serious bodily injury, extreme pain or kidnapping.
(b) He has impaired her power to consent by giving her drugs,
intoxicants, or other means of preventing resistance w/o her
(c) The female is unconscious
(d) The female is < 10 years old
A husband cannot be guilty of raping his wife (§213.1(2)(a))
MPC approach puts the focus on ’s actions rather than the victim’s
Rape is a 2nd degree felony unless
inflicts serious bodily injury upon anyone in the course of
Victim in no a social companion of at the time of the rape
Victim never had consensual sex w/ at any previous time.
2. “No” (or the absence of “Yes”) as “Force”
a. Commonwealth v. Berkowitz – Verbal resistance (ie: saying no) was enough
to prove non-consent, but non-consent by itself was not enough to prove
Commonwealth v. Berkowitz
Facts: was alleged to have raped a fellow student when she visited his dorm in
college and the only resistance she provided was saying “no” a number of times.
Rule: Whether there is sufficient evidence to demonstrate that an accused
engaged in sexual intercourse by forcible compulsion (physical, moral, or
psychological force) is a determination that will be made in each case based on
the totality of the circumstances.
Comment: Since rape in this J/D is based on a finding of “forcible compulsion”
and was not defined simply as non-consensual intercourse, verbal resistance
(“no”), without more, was not sufficient for a rape conviction.
b. State of NJ in the interest of MTS – Force is having sex w/o victim’s
consent – involuntary penetration.
State of NJ in the interest of MTS
Facts: Two teens disagree on facts of the case ( said there was petting and it
just escalated, said she was asleep and woke up to having sex w/ her) but
(MTS) argues that he cannot be guilty of sexual assault b/c he did not use force.
Rule: Force necessary to constitute sexual assault need not be more force than
that necessary to perform the sex act. (Penetration w/o consent is enough)
Comments: Court said that the changes in the law were meant to move the focus
away from the victim’s conduct. Changes to the traditional requirement of a high
level of resistance by the victim like this one in NJ began to change public
perceptions of the nature of rape.
B. Deceptions and Non-Physical Threats
1. Fraud in the Factum – deception on the facts, victim does not understand what they
No legally recognized consent (majority rule)
would be guilty of rape
People v. Minkowski
Facts: A doctor treated women for menstrual cramps by inserting an object into
their vaginas from the rear and the object was really his penis.
Rule: Since the fraud went to what the women thought they were
experiencing/doing, consent was held not to be present - guilty of rape.
2. Fraud in the Inducement – deception makes the victim confused, not about what they
are doing, but they are mislead as to why or with who. (fraud designed to induce
There is legally recognized consent
This is a defense in most J/D – is not guilty of rape
Boro v. Superior Court
Facts: Dr. Stephens Case
Rule: Intercourse induced by fraud does not constitute rape.
Comments: Victim knew what she was doing, the fraud was in the inducement
b/c she was mislead as to why she was doing it.
3. MPC Approach – The MPC does not really say anything about fraud, but fraud in the
inducement would be a defense b/c it would completely eliminate the force
element… the only element that would exist would be sex.
C. Rape Crisis
People should not have to be told that they were raped. If they were raped
they should know without someone else telling them that they were raped.
Doesn’t think drunkenness should be probative of rape b/c women can
choose not to drink what the man gives them.
Believes that emotional and verbal coercion should not be involved in the
definition of rape b/c manipulation exists in all relationships and it is sexist
b/c it would never be enforced w/ men.
Thinks the rape crisis is brought on by feminists, not rapists.
2. Rape Crisis Feminists
Rape Crisis Feminists say they are arguing about violence, not sex.
Roife says that RC feminists are arguing about sex; they are trying to
promote a socially acceptable view of sex (damaging view according to
Roife). (Roife thinks Estrich is a RC feminist)
Roife feels that RC feminists are pushing the status of women back to the
1950s when women were helpless, frail creatures.
III. Mens Rea
A. Regina v. Morgan - (Husband’s friends slept w/ wife) A mens rea of purpose or recklessness
(subjective standard) was required and therefore an unreasonable mistake of fact was a
B. Commonwealth v. Sherry – Unreasonable mistake of fact is not a defense – uses negligence
standard (reasonable person) for mens rea requirment. Later the court decided that a
reasonable mistake of fact is not a defense in this J/D either.
Commonwealth v. Sherry
Facts: Doctors had sex w/ a nurse who only protested verbally. s were charged w/ rape and
argued that actual knowledge of lack of consent had to be proven for a conviction.
Rule: In order to obtain a conviction in a rape prosecution, the state does not need to prove actual
knowledge of non-consent.
Comments: The proper standard w/ respect to mistake of fact is whether the acted reasonably
and in good faith. The negligence standard encourages a higher duty of care.
C. MPC – no stated level of culpability for rape so therefore the level is purpose, knowledge, or
In MPC J/D, an honest mistake, even if it is unreasonable, is a defense to rape.
IV. Proving Rape
A. Federal Rules of Evidence
1. 401 – Relevant Evidence – evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or
less probable than it would be w/o the evidence.
2. 403 – Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice.
B. Rape Shield Laws
1. In General – Rape shield laws are designed to protect victims from their past sexual
acts and to encourage victims to come forward without worrying that their sexual
history will be put on trial.
Typically, RS Laws prohibit the admissibility of evidence of the victim’s
prior sexual history.
Many RS Laws even allow evidence of prior consensual sex w/ or
testimony which directly refutes the rape claim.
2. Colbath – public advances toward by the victim could be indicative of her private
intentions and therefore they are relevant.
Facts: At a bar, the victim had let feel her breasts and she had grabbed his crotch.
They had sex, thought she had consented and she said she didn’t consent.
Rule: Since the displays were public there was no privacy issue, and public displays
toward could be indicative of the victims intentions toward .
Comments: Basically, in accordance w/ FRE 403, the evidence was allowed because the
court thought the probative value outweighed the possibility of prejudice b/c actions were
3. Wilhelm – Rape Shield Law in Michigan precludes evidence of the victim’s public
sexual conduct. (In this case, the conduct was not specifically directed at )
People v. Wilhelm
Facts: saw victim expose her breasts to other men in a bar. argued that Michigan’s
RS Law did not preclude this evidence of the victim’s public sexual behavior.
Rule: Michigan’s rape shield law precludes evidence of the victim’s public sexual
conduct. (Conduct toward other men has no bearing on intentions toward )
Comments: Michigan has a rather strict RS Law, but it distinguished Colbath by saying
that in Colbath the sexual actions were directed at , in Wilhelm, they were not.
A. Common Law – murder at common law was the killing of another with malice aforethought.
1. Intent to kill
2. Intent to cause great bodily harm
3. Depraved heart murder (extreme recklessness)
4. Intent to commit a felony
At common law, there were no degrees of murder
B. Distinctions/Degrees of Murder
The first distinctions were made in PA in 1794
The point was to select out the worst murders for the worst punishment
First degree murder deliberate and premeditate
Premeditation is the intent to kill
II. Intentional Killings
A. Degrees of Murder: The Deliberation-Premeditation Formula
1. State v. Schraeder – In order to constitute premeditation, the intent to kill only needs
to exist for a moment, it does not have to exist for any set length of time.
State v. Scraeder
Facts: After stabbing victim 51 times during an argument, was tried and convicted to
1st degree murder and he contended that the jury instructions on premeditation took the
“pre” out of premeditation.
Rule: To constitute a willful, deliberate, and premeditated killing, it is not necessary that
the intention to kill should exist for any set length of time prior to the actual killing.
Comments: These are the traditional instructions for murder, but some J/D have rejected
the idea that premeditation only needs to exist for a moment. For Example, in Michigan,
there must be enough time to afford a reasonable man the chance to take a “second look”.
2. Midgett v. State – in order to have premeditation and deliberation, there needs to be
an intent to kill. In this case, the intent to abuse a child premeditation or deliberation
for murder and therefore 1st degree murder.
Midgett v. State
Facts: Abusive father killed his son, was tried and convicted of 1st degree murder.
argued that there was no evidence of premeditation and deliberation.
Rule: Where a person is accused of 1st degree murder, it must be shown by substantial
evidence that the killing was premeditated and deliberate.
Comments: The dissent felt that a reasonable jury could have concluded that such
repeated abuse could have constituted an intent to kill and therefore there was evidence to
support the jury verdict. Some states have changed their laws to allow child abuse
resulting in death to fall under 1st degree murder.
3. State v. Forrest – provocation considers the following factors:
(1) Provocation by
(2) Conduct by before the killing
(3) Threats made by
(4) Difficulty between parties
(5) Lethal blows after is helpless
(6) Evidence that killing was done in a brutal manner.
State v. Forrest
Facts: Son shot his terminally ill father in the head four times and he was tried and
convicted of 1st degree murder. argued that there was insufficient evidence of
premeditation and deliberation.
Rule: 1st degree murder is the intentional and unlawful killing of a human being w/
malice and with premeditation and deliberation.
Comments: The court found that obviously wasn’t provoked, victim was helpless,
victim was shot 4 times, and had talked about stopping his father’s suffering.
According to the factors, the court found that there was sufficient evidence of
premeditation. This case, when looked at w/ Midgett, raises the question of whether
premeditation really selects out the worst murders.
4. MPC (§2.10.2(1)) – purpose, knowledge, or recklessness are the required mental states
for murder under the MPC.
Premeditation is not required
Only one degree of murder
B. Manslaughter: “Heat of Passion” Killings
1. Common Law Principles – at common law, manslaughter was an intentional killing
that was distinguishable from murder by adequate provocation.
a. Rules of Provocation
(1) Adequate Provocation
(2) Heat of Passion
(3) Sudden Heat of Passion
(4) Causal connection between provocation, passion and killing.
b. Common Law Adequate Provocation
(1) Threat of Deadly Force
(2) Seeing spouse in bed with another
c. Girouard v. State – verbal provocation not enough.
Girouard v. State
Facts: (army guy) was convicted of the murder of his wife and he appealed on
the basis that she provoked him verbally and therefore the charge should have
been mitigated to manslaughter.
Rule: Words cannot constitute adequate provocation to mitigate a charge of
murder to manslaughter unless the words are accompanied by conduct indicating
a present intention and ability to cause the defendant bodily harm.
Comments: This case followed the typical common law principle that words
were not enough to constitute adequate provocation. However, the modern trend
is that the question of adequate provocation is a question for the jury.
2. Justification for Manslaughter/Murder Distinction – Murder/Manslaughter
distinctions are based on retributive justifications.
a. Retribution v. Utilitarianism
Retribution assumes that a person who is adequately provoked is
less morally blameworthy than a person who intentionally kills
Utilitarians would probably want more punishment for provoked
killers because they might feel that they are more dangerous and
need further specific deterrence, incapacitation, etc.
b. Justification or Excuse? – most people think the provocation partial defense
is based on excuse rather than justification.
(1) Justification – focuses on the act; justification constitutes acts that
we approve of like self-defense killings.
The justification argument for provoked killings is based on
the common law view that the victims had done something
unlawful (ie: adultery)
(2) Excuse – focuses on the actor; excuse is used for conduct that we do
not approve of but we excuse because the actor is less morally
blameworthy (ie: insanity defense)
Dressler gives three reasons that provocation is based on
1. Person lacks reason (mens rea element (intent) is
2. It is involuntary (actor does not have enough time to
think about his actions)
3. Concession to human weakness (sometimes good
people do bad things when provoked)
3. Modern Trend – adequate provocation is a question for the jury and the objective,
reasonable person standard is used.
Reasonable Person Standard – Must Decide:
1. Was the person provoked?
2. Would a reasonable person have reacted in the same way
a. Purely Objective Standard – The purely objective standard looks at a
reasonable person in the abstract. No personal characteristics of are
b. Semi-Objective Standard (Camplin) - The semi-objective standard looks at
a reasonable person with ’s physical characteristics (ie: age, gender, etc.)
and any other characteristics that may affect the gravity of the provocation.
Director of Public Prosecutions v. Camplin
Facts: 15-year-old boy killed a man after being sodomized and made fun of by
him. The jury found guilty of murder after the judge gave instructions on a
reasonable mad standard.
Rule: When applying the reasonable person standard to determine whether
adequate provocation supports a heat of passion defense, thereby reducing
murder to voluntary manslaughter, the characteristics of must be considered.
Comments: In this J/D, words alone could be considered provocation and the
reasonable person standard needed to take gender and age into consideration
because these characteristics could very well determine how one would react to
verbal provocation. (adults should have more restraint than children) This
standard is different from common law because there are no narrow categories
and adequate provocation is a jury question.
c. More Subjective Standard (MPC Approach) – the subjective standard looks
at provocation from the perspective of a reasonable person in ’s situation
with circumstances as he believes them to be.
4. Model Penal Code (§210.3) – uses a more subjective standard for provocation
a. Homicide = Manslaughter When:
1. It is committed recklessly
2. It is committed under the influence of extreme emotional disturbance
for which there is a reasonable explanation.
Reasonableness is determined from the viewpoint of a
reasonable person in ’s situation under the circumstances
as believed them to be.
b. What Characteristics of Should be Taken into Account?
MPC Commentary says that personal handicaps and external
circumstances should be taken into account
Idiosyncratic moral values are not part of the situation and should not
be taken into account. (ie: no jury instruction on the “reasonable
This is a gray area in the middle and judges have discretion to
determine what constitutes part of ’s situation.
The jury determines what is reasonable, but he judge decides when
they can make this determination and what factors they can consider.
c. People v. Casassa - subjective standard is not purely subjective, if the
circumstances would not cause EED for a reasonable person (reaction is
unique to ), it does not constitute a partial defense under EED.
People v. Casassa
Facts: became obsessed w/ a girl and stabbed her. was charged w/ murder
and he argues that he was under EED so it should be manslaughter and that the
standard should be purely subjective.
Rule: Whether was so emotionally disturbed as to less murder to manslaughter
involves both an objective and subjective analysis.
Comments: It is subjective as to whether was under EED, but whether the
EED was reasonable or not is an objective standard under the circumstances.
III. Reckless and Negligent Killings
A. 4 Legal Possibilites When Someone Kills Someone Else Unintentionally
1. No Liability
2. Civil Liability
3. Manslaughter (Involuntary)
4. Murder (2nd Degree)
B. People v. Love – 2 Requirements for 2nd Degree Murder w/ Unintentional Killings
1. High Probability that conduct will cause death (extreme indifference to human life)
2. Awareness of the risks of the conduct or that the conduct is unlawful.
C. Berry v. Superior Court – unintentional killings can constitute murder on an implied malice
theory when shows an extreme indifference to the value of human life.
Berry v. Superior Court
Facts: ’s pit bull killed a 2-year-old boy and was charged with 2nd degree murder on an
implied malice theory.
Rule: Where shows an extreme indifference to the value of human life and is aware either of
the risks of his conduct or that his conduct is contrary to the law, such evidence is sufficient to
justify trial for murder on an implied malice theory.
Comments: The court decided that the issue of implied malice was a jury question. They felt
that there was sufficient evidence that a reasonable jury could find implied malice b/c knew of
the risks and did not adequately confine the dog.
D. State v. Hernandez – The mental state required for involuntary manslaughter in this J/D is
criminal negligence and this standard is met when fails to be aware of a substantial and
unjustifiable risk that a result will happen from his conduct.
State v. Hernandez
Facts: Drunk driver was convicted of involuntary manslaughter when he got in an accident and
Rule: A person acts with criminal negligence when he fails to be aware of a substantial and
unjustifiable risk that a result will follow.
Comments: This was the case that involved the admissibility of the drinking slogans on ’s car.
The appellate court found that the slogans were not relevant to the determination of ’s mental
state, that is, ’s lack of awareness that his conduct could cause death, and so the conviction was
reversed on this error.
E. State v. Williams – When someone fails to act when they have a duty to do so, the mens rea
for involuntary manslaughter is ordinary (civil) negligence.
State v. Williams
Facts: Parents didn’t take their baby to the doctor because they thought the baby only had a
toothache and the baby died.
Rule: Where the failure of a person to act while under the duty to do so is the proximate cause of
the death of another, that person may be convicted of involuntary manslaughter, even though his
conduct was no more than ordinary negligence.
Comments: This deviates from the common-law principle that gross negligence (criminal
negligence) was required for an involuntary manslaughter conviction.
F. Debate on Punishment for Negligence
1. Retribution – Against Punishment
There should be no punishment for negligence because the mens rea (guilty
mind ) is not there.
The actor is not making a free choice to do wrong so he is not morally
2. Utilitarian – Against Punishment
A person cannot be deterred from doing something that they did not intend to
3. Utilitarian – For Punishment
If people are punished for negligence, it will cause people to be more careful
and therefore deter negligence. (General Deterrence)
G. MPC – Negligent Homicide (§210.4) – Criminal homicide constitutes negligent homicide
when committed negligently
1. Negligence Standard in MPC is Gross Negligence (§2.02(2)(d))
Gross Negligence measures the magnitude and probability of the risk against
the social utility of the conduct.
Uses a semi-subjective standard of a reasonable person in the actor’s
The reasonable person is objective, but the court could interpret the actor’s
The MPC commentary says that heredity, ignorance or temperament should
not be considered part of the situation.
IV. Felony Murder
A. The Felony-Murder Rule
1. Unlimited Form
A Felony + A Killing = A Murder
a. What the Prosecution Needs to Prove
With the FMR, the prosecution only needs to prove the mens rea for
the underlying felony.
This was the rule at common law and is still the rule in most J/D.
b. Arguments Against the Unlimited FMR
Changes Since Common Law
(1) Things have changed since common law, at common law, there were
a very small number of felonies and they were all punishable by
death. The punishment for felonies and murder were the same.
(2) Today, there are a large number of felonies and the punishment for
felonies are usually much different than those for murder.
(3) FMR abolishes the mens rea element for murder.
(1) Mental states of the underlying felonies ARE NOT THE SAME as
the mental state of murder
(2) Intent to commit a felony is equated w/ malice aforethought,
premeditation and deliberation under FMR and this is WRONG.
c. People v. Stamp – Follows common-law FMR. FOS is not an issue.
People v. Stamp
Facts: robbed a business, one of the employees had a heart attack and died and
was charged w/ felony murder.
Rule: Under FMR in this J/D, a killing committed in either the perpetration of or
an attempt to perpetrate robbery is 1st degree murder.
Comments: The prosecution only had to prove the mens rea of the underlying
felony and not of murder so the fact that the death was not FOS didn’t matter if
the heart attack resulted from fear of the robbery.
d. People v. Fuller – Accidental deaths that result from fleeing from the crime
scene can be murder under the FMR.
People v. Fuller
Facts: ’s were fleeing the scene after having stolen tires from vans parked in a
car lot and they got in an accident where someone was killed. They were
charged with 1st degree murder.
Rule: An accidental death occurring during flight subsequent to a theft from a
vehicle will support 1st degree murder charges.
Comments: The court found ’s guilty under FMR, but it expressed it’s
unhappiness w/ the FMR. The court felt that since the felony was not dangerous
or violent, the FMR wasn’t fair. All the government had to prove was the intent
to commit larceny, and the court felt like the FMR imposed too strict a
punishment. The purpose of FMR is to deter negligent or accidental killings, not
to deter the underlying felonies.
2. Deterrent and Retributive Views of FMR
a. Deterrence View – 2 Theories
(1) FMR is to deter accidental & negligent killings by felons
(2) FMR is to deter the underlying felonies themselves
b. Problems w/ Deterrence View
1st Theory – Accidental Killings
(1) You can’t deter unintended acts.
2nd Theory – Underlying Felony
(1) Serious crimes are not deterrable based on punishment
(2) Felonies should be deterred by increasing the punishment for the
actions that the felon has control over (such as the felony itself).
(3) Deterrence won’t work if the felons don’t know they could be
punished for murder.
(1) The felon has an “evil mind” in committing the felony
(2) The Retributive justification for the FMR focuses on the theory that
punishment should be based on the resulting harm rather than the
felon’s mental state.
d. Critique of Retribution
(1) The “resulting harm” rule is old and doesn’t fit with the progressive,
evolved views of justice that a person should be punished based on their
mental culpability (mind state).
(2) People should not be punished for murder when there is no intent.
3. Other Justifications for FMR
(1) FMR is justified because it focuses on the consequences of the crime,
just as the distinctions between murder and attempted murder do.
(2) Murder and attempted murder have the same required mental state,
but are punished differently based on the results of the act.
(1) Need to compensate societal outrage
(2) Focus on the victim – crimes that result in death should be punished
more than crimes that don’t
(3) Expiation - needs to pay his debt to society
c. Ease of Proving the Mental State
(1) FMR makes it much easier to prove the mental state of homicides
because it is much easier to prove the mens rea for felonies than for
4. MPC (§210.2(1)(b))
a. Mental State Required - MPC §210.2(1)(b) has provisions that are somewhat
like a FMR, but they are different because there is a mental state required –
b. Felonies that Imply Extreme Recklessness under §210.2(1)(b) – robbery,
rape, arson, burglary, kidnapping, or felonious escape.
c. NOT SL – This is a rebuttable presumption, there is no SL. If can prove that
they were not extremely reckless then they will be found innocent of murder.
5. Limitations on the Rule
a. The “Inherently Dangerous” Felony Limitation – Only an underlying
felony that is “inherently dangerous to human life” will trigger the FMR.
(Precludes the least serious felonies from FMR)
Look At the Felony in the ABSTRACT:
(1) The primary element of the offense
(2) The factors elevating the offense to a felony
Why this Limitation?
The purpose of the FMR is to deter felons from accidentally
Removes NON – DANGEROUS
killing during their felonies, but they can’t be careful if they have no
felonies from FMR Application.
idea that their felony is dangerous or that death could result.
People v. Burroughs – FMR cannot be used when the underlying
felony is not inherently dangerous (the act is sometimes not
dangerous and the felony can be committed w/o resulting in death).
People v. Burroughs
Facts: was a “healer” and was convicted of FM and practicing
medicine w/o a license after one of his clients died during treatment.
Rule: The FMR does not apply to practicing medicine w/o a license b/c
unlicensed practice is not an “inherently dangerous” felony.
Comments: The court here said that the purpose of the FMR is to
encourage felons to commit their crimes carefully so they don’t take a
life, and in this case the purpose would not be served b/c thought he
was “healing,” he didn’t know he was committing a felony and he didn’t
know that he could cause a death.
b. The “Independent Felony” (or Merger) Limitation – if the underlying
felony is an “integral part” of the homicide itself, the FMR is not applied.
(Precludes some of the MOST serious felonies from FMR)
Why this Limitation?
In most killings, there is some kind of felonious assault involved,
Removes the MOST DANGEROUS
and if this were an appropriate underlying felony for FMR, then almost
felonies from FMR Application
all homicides would be murder w/o having to prove the mens rea.
Without this limitation, the FMR would remove the court/jury’s
discretion to grade punishment.
The purpose of the FMR (to deter felons from accidentally
killing during their felonies) would not be served here b/c if your purpose
is to kill someone, you can’t kill carefully to avoid killing.
People v. Smith – FMR does not apply to killings that are an integral
part of the homicide. For FMR to apply, there must be another
purpose other than killing or causing grave bodily harm.
People v. Smith
Facts: was convicted of murder under the FMR when the underlying
felony was child abuse.
Rule: FM may not be applied where the underlying felony is child abuse
because this felony is not independent of the possible death of the child.
Comments: In this J/D, child abuse is assault that results in death, so the
death is therefore an integral part of the homicide.
c. Killings “In The Perpetration” or “In Furtherance” of a Felony – The
FMR is limited in most J/D to killings done by the perpetrator or an
accomplice that occur in the furtherance of the felony.
1. Who did the killing?
a. Agency Theory – The only killings that felons are responsible
for are those done by their co-felons or themselves. (usually
FOS as well)
State v. Bonner – Felons may not be charged w/ the FM of one
of their co-felons by an adversary (ie: police officer).
Facts: 4 men tried to rob a restaurant, 2 of the men were shot
and killed by a security guard and the other 2 were charged w/
the FM of the 2 that were killed.
Rule: Co-felons may not be charged w/ felony murder as a result
of the deaths of their accomplices at the hands of an adversary to
b. Proximate Cause Theory – Felons are responsible for any
killing that they proximately cause no matter who does the
2. Did it further the felony? – The death must be the result of some act
that is intended to further the course of the felony.
King v. Commonwealth – Death must be a consequence not a
Facts: and an accomplice were in a plane in an attempt to
illegally import marijuana. The plane crashed due to bad
weather and was charged w/ the FM of his co-felon when he
was killed in the crash. argued that the crash was due to a
fortuity and not a consequence of the crime.
Rule: For a death occurring during a felony to give rise to FM, it
must be a consequence of the crime.
B. The Misdemeanor Manslaughter Rule – any unintended homicide that occurs during the
commission of an unlawful act that does not constitute a felony constitutes common-law
a. Like FMR – The MM rule is like the FMR in that it eliminates the mens rea necessary
to prove involuntary manslaughter and all the prosecution has to prove is the mens
rea of the underlying misdemeanor.
(1) A person may be convicted of manslaughter even if the person’s conduct
creates no perceptible risk of death.
(2) Violates the important principle that a person’s criminal liability for an act
should be proportioned to his or her moral culpability for that act.
c. Morally Wrongful Conduct – some J/D allow MM convictions for conduct that is not
criminal but is morally wrongful. (ie: attempted suicide resulting in the death of
someone who tries to stop the person from committing suicide.)
d. MPC – Many J/D have followed the MPC and abolished the MM doctrine.
Capital Punishment (Capital MURDER)
At Common Law, there was a mandatory death sentence on all convicted murderers.
I. The Constitutional Debate
A. 8th Amendment – prohibits “cruel and unusual punishment”
1. Prohibits punishment that causes wanton infliction of pain
2. Prohibits punishment that is grossly out of proportion
B. 14th Amendment – ensures due process and equal protection under the law
C. The Furman Decision (1972) – The DP cannot be imposed arbitrarily, capriciously, or in a
discriminatory manner – there needs to be restrictions and guidelines.
2 justices said DP was unconstitutional in ALL cases and 3 justices said that
restrictions are needed so it isn’t arbitrary. 4 justices said that it was ok as is.
This ended executions nationwide b/c state statutes were not restrictive enough to be
constitutional under Furman, so after Furman, 35 states changed their statutes so they
could still have the DP.
Most states adopted laws based on MPC w/ a required bifurcated hearing and
included aggravating and mitigating circumstances.
Jury still has discretion, but they have much more guidance than b/f Furman.
D. MPC §210.6 – Regulations on when the Jury can give DP
1. Bifurcated Hearing Required – MPC requires a separate hearing to determine
sentencing in possible DP cases.
2. Aggravating Circumstances – 210.6(3)
a. Murder committed by a convict
b. Criminal record of capital felonies
c. More than one murder was committed at the time
d. Murder created a great risk of death
e. Murder was committed w/ a felony
f. Murder of a judicial officer
g. Murder for $
h. Murder was especially heinous
3. Mitigating Circumstances – 210.6(4)
a. No Criminal record
b. Extreme mental or emotional disturbance
c. Victim was involved in the homicidal act
d. believed there was a moral justification
e. was an accomplice an did not pull the trigger
f. acted under duress or domination of another person
g. ’s capacity to appreciate wrongfulness was impaired by mental disease or
h. was young.
E. Gregg v. Georgia (1976) – USSC considered the amended GA DP statute that required
aggravating circumstances and allowed mitigating circumstances and ruled that the DP was
not unconstitutional per se.
Gregg v. Georgia
Facts: contended that the DP was a per se violation of the 8th Amendment.
Rule: The DP is not a per se violation of the 8th Amendment.
Comments: argued that society’s standards of decency had evolved to where DP is cruel and
unusual. The court disagreed and said that after Furman, 35 states changed their laws so they
could still have the DP so therefore society likes DP. The court also argued that there were
retributive and utilitarian justifications for the DP. Marshall dissented and said that the
deterrence and retribution arguments made by the majority were faulty because death is not a
deterrent and their retributive argument was actually utilitarian b/c it promoted social good by
preventing vigil antis. Brennan dissented and agreed w/ that society had evolved to the point
where the DP was cruel and unusual.
F. Need a Justification for DP – Arguments made by the majority in Gregg.
DP is an expression of society’s moral outrage
Need DP to prevent people from taking the law into their own hands.
(Marshall argues that this is a utilitarian justification)
In carefully contemplated murders (murders for hire) DP will affect the
criminal’s decision to kill.
There is some empirical evidence that DP is a deterrent and there is also
empirical evidence that it is not a deterrent. (Marshall says no deterrence)
III. The Policy Debate
a. Abolitionist – DP does nothing more to deter murder than life in prison does, and the
“brutalization thesis” says in some cases b/c it will increase the number of murders
among people who are psychologically ready to kill b/c there is so much notoriety
around DP trials.
b. Retentionist – The Ehrlich study showed that DP reduces the number of murders.
B. Retribution/Sanctity of Life
a. Abolitionist – DP cheapens life and should be abolished. Killing the murderer cannot
help the victim.
b. Retentionist – Punishment must be in proportion to the crime and therefore a person
who kills does not deserve to live. DP is necessary to uphold the sanctity of life.
C. Error and Irrevocability
a. Abolitionist – There is no margin for error, if you kill an innocent person the error
cannot be corrected. It is morally preferable to abolish the DP so no innocent people
are killed even if the result is that many murderers do not get the DP (which they
arguable deserve under retributive standards).
b. Retentionist – The risk of executing an innocent person does not outweigh the
benefits of the DP. We build highways knowing that innocent lives will be lost as a
result but the benefits of public roads outweigh the drawbacks.
D. Discriminatory Administration
a. Abolitionist – The amount of discretion that judges and jurors have leads to
discriminatory administration of the DP. Some studies have shown that race of the
criminal, and more importantly, the race of the victim, play a large role in who gets
DP. (See McCleskey)
b. Retentionist – Justice Scalia argues that even though there is a likelihood of
discriminatory administration, this could happen with any form of punishment and it
is not enough of a reason to abolish DP.
IV. The Quest for Reliable Procedures
A. Racial Discrimination
McCleskey v. Kemp
Facts: McCleskey cited the Baldas study and argued that the capital sentencing process in GA
was administered in a racially discriminatory manner b/c black ’s, like himself, who killed white
victims had the greatest likelihood of getting the DP and it was therefore in violation of the equal
protection clause of the 14th amendment.
Rule: Capital punishment is constitutional even though statistics indicate a risk that racial
considerations may enter into capital sentencing determinations.
1. Powell and the Majority – They don’t like the use of a general study to apply to a
specific situation that was not involved in the study because it does not show
“purposeful discrimination”. McCleskey said that the legislature knew it was
discriminatory and enacted it anyway and knowledge = purpose. The majority
disagrees and says knowledge purpose. As far as the 8th amendment violation, the
majority says that the study shows a risk of racial bias but it is not conclusive.
2. Scalia Concurring – Scalia says that, unlike the majority, he does not need more
evidence. He believes the Baldas study shows race plays a role, but it plays a role in
sentencing for any crime and it is not enough to revoke DP.
3. Brennan, Marshall, Blackmun and Stevens Dissent – Racial discrimination in the
administration of the DP devalues the lives of black persons and therefore is
unconstitutional because it is at odds with the idea that each person should be
evaluated as a unique human being.
4. Powell later changes his mind – After retiring from the USSC, Powell said that he
regretted his decision in the McCleskey case, not because DP was inherently
immoral, but because it could not be fairly administered.
B. Victim Impact Evidence
Payne v. Tennessee
Facts: killed a woman and her young daughter and stabbed her son a number of times, but the
son survived. During the sentencing phase of the trial, the prosecution provided evidence of the
lasting effects the crime had on the son. argued that victim impact evidence was not
Rule: Victim impact evidence may constitutionally be offered during the sentencing phase of a
capital murder trial.
Comments: The court held, 2 years before, that victim impact evidence was unconstitutional, and
then reversed themselves here largely due to a change in the personnel of the USSC.
1. Majority Argument – Previous USSC decisions held that victim impact evidence was
not admissible because the only relevant issue at sentencing was the ’s
blameworthiness, and victim impact evidence was not probative of this issue.
However, the court rejects this argument here and says that to arrive at a conclusion
of ’s blameworthiness, you need to know what harm he has caused and victim
impact evidence shows this.
2. Marshall’s Dissent – This decision is a violation of stare decisis and is based only on
the personnel changes in the court.
3. Stevens Dissent – All victim impact evidence will do is appeal to the emotions of the
jurors and cause the imposition of the DP to be an emotional, rather than a rational,
decision by the jury. (Imposition will become more arbitrary)
A. Why Punish Attempt Crimes?
1. Deterrence – By punishing attempts, you are trying to deter the completed crime.
a. Critique of Deterrence Argument – People who are trying to commit crimes
(ie: murder) are obviously not deterred by the punishment for the crime itself
so they won’t be deterred by the punishment for the attempted crime.
a. Harm-Based Retribution – Punish when harm is caused.
b. Critique of Harm-Based Retribution – The stronger harm-based retribution
argument is against punishing attempt crimes b/c no harm is really caused.
c. Intent-Based Retribution – Punish based on evil mindset, moral
blameworthiness. This is a good argument for punishing attempt crimes
since they have the same mental state as people who commit the actual
crimes, they are just stopped b/f the crime can be completed.
3. MPC – Allows punishment for attempt crimes in order to prevent crimes from being
a. Law Enforcement Argument – The police need to be able to stop crimes
before they occur and when we make attempts actual crimes then the police
can intervene and stop criminals before the crimes are completed.
B. Grading Criminal Attempts – most J/D punish attempt crimes less than the crime itself.
a. Same Punishment – If retribution argument is based on intent, both the crime
and the attempt should be punished the same (same mens rea).
b. Different Punishment – If retribution argument is based on harm, they
should be punished differently b/c the crime causes more harm than the
a. Same Punishment – Punishments for attempts and the actual crimes are trying
to deter the same crime so they punishments should be the same.
b. Different Punishment – You want to stop people from committing the crime,
so if the punishment is the same for attempt what is going to stop them?
3. MPC (§5.05)
a. Grading (§5.05(1)) – attempt crimes are punishable to the same extent as the
completed crime, except that attempts to commit 1st degree felonies are
punishable as 2nd degree felonies.
b. Mitigation (§5.05(2)) – If the conduct that is charged to constitute a criminal
attempt is so unlikely to result or culminate in the commission of a crime that
no public danger is presented, the courts can lower the grade or degree of the
c. Multiple Convictions (§5.05(3)) - A person cannot be convicted of more than
one inchoate crime (attempt, solicitation, conspiracy, etc.) that is designed to
commit or culminate in the same crime.
C. Mens Rea
1. Common Law – at common law, to be guilty of an attempt crime, you needed to have
the specific intent to commit the actual crime (ie: attempt to kill).
2. People v. Gentry – in order to be convicted of attempted murder, must have the
intent to kill. This rule is consistent w/ common law and the rule in most J/D. In
order to be convicted of an attempt crime, you must have the intent to reach the result
of the crime (ie: a dead body).
People v. Gentry
Facts: spilled gasoline on his girlfriend and she was severely burned when she went
near the stove and was charged w/ attempted murder.
Rule: A finding of specific intent to kill is a necessary element of the crime of attempted
Comments: The issue in this case was the jury instructions where the jury was instructed
that they could convict of attempted murder if they found that any of the mens rea
elements for murder existed when they should have been instructed that they needed to
find a specific intent to kill.
3. Bruce v. State – Attempted FM is not a crime b/c attempt is a specific intent crime
and FM does not require a specific intent to kill. You can’t have attempt crimes for
unintentional crimes (involuntary manslaughter, FM, etc.)
Bruce v. State
Facts: was convicted of attempted FM when he shot a store clerk in the stomach during
a robbery and he argued that attempted FM wasn’t a crime.
Rule: Because criminal attempt requires a specific intent and a conviction for FM does
not require a specific intent to kill, attempted FM is not a crime in MD.
Comments: Most J/D agree that attempted FM is not a crime. MPC requires purpose or
belief that a result will occur, or the purpose to do the act but only requires the mens rea
required for the crime itself when it comes to attendant circumstances.
4. Mens Rea Requirements in MPC (§5.01) – MPC requires either the purpose to
engage in conduct that one believes will result in the crime or the belief that one’s
actions will result in the crime.
a. Actus Reus – the mens rea required for the actual actus reus of the attempt is
purpose or belief (with result crimes)
b. Attendant Circumstances – the mens rea required for the attendant
circumstances of the completed crime is the same for the attempt crime.
(attendant circumstances do not require purpose/intent)
D. Actus Reus
1. Completed Attempts (MPC §5.01(1)) – Everything has been done to commit the
crime, or believes a result will occur, but the completed crime or result don’t occur
because of some reason outside of ’s control.
a. Conduct Crimes - purposely does conduct that would have resulted in the
crime if the attendant circumstances were as he thought they were.
b. Result Crimes - purposely acts to cause a result or believes that his acts will
cause a result.
2. Common Law Tests for Attempt
US v. Mandujano
Rule: There must be some appreciable fragment of the crime committed for an
act to qualify as an “attempt”.
a. Physical Proximity Test – an overt act must be taken that is proximate (close)
to the completed crime or directly tending toward the crime. (But how close
b. Dangerous Proximity Test – an overt act must be taken that is dangerously
close to the completion of the crime. 3 factors must be considered:
(1) Nearness of the danger (Criticism of this test is that it gives very
(2) Greatness of the harm little guidance as to what conduct really
(3) Degree of apprehension felt. constitutes an attempt)
Commonwealth v. Peaslee
Facts: arranged certain combustibles in order to burn down a building but
never went through with his plan.
Rule: A person may be guilty of attempt even if he never actually went through
with the last act necessary, but to determine criminal attempt all relevant
circumstances must be weighed, including the nature of the intended result.
Comments: This is knows as the source of the “dangerous proximity” test.
People v. Rizzo
Facts: ’s tried to find a man to rob him but they couldn’t find him.
Rule: Since the victim was never found, these acts account only for preparation
of the robbery and not attempt under the dangerous proximity doctrine.
Comments: The court said that ’s had planned to commit the crime and looked
for an opportunity, but the opportunity never arose.
c. Probable Desistance Test – the crime will be completed in the natural course
of events unless interrupted by an outside source. (MPC Commentaries
criticize this test by saying that it involves a judgment that is hard to make)
d. Abnormal Step Test – steps have been taken past the point where a normal,
reasonable citizen would have stopped. (MPC Commentaries criticize this
test by saying that any step toward the crime is more than what a normal
citizen would do)
e. Indispensable Element Test – If any indispensable element of the complete
crime still has not been done, then is not guilty of attempt.
f. Unequivocality Test (Res Ipsa Test) – Focuses only on actions, not words
(watching TV on mute), and determines whether ’s actions, viewed in the
abstract, demonstrate an unequivocal intent to commit a crime. If there is
another lawful explanation for ’s conduct then is not guilty. (A problem
with this test is that if the purpose of punishing attempts is to stop before
the crime is completed it could be hard w/ this test.)
People v. Miller
Facts: threatened to kill someone and then later approached him w/ a rifle,
which he never pointed at the person. gave his gun to a constable and was later
convicted of attempted murder. argued that what he did was not an attempt.
Rule: In order to constitute an attempt, ’s actions must unequivocally show that
intended to commit the crime.
Comments: In this case, was not convicted b/c the court found that his actions
did not unequivocally show intent. The case would have been stronger if the
threat could have been taken into account, but with the unequivocality test, only
’s actions are considered, not his words.
3. MPC Test for Attempt (5.01(1)(c) – Incomplete Attempts - makes a substantial
step toward the completion of the crime.
a. Substantial Steps under §5.01(2)
a. Waiting or searching for the victim
b. Enticing victim to come to the location where the crime will occur
c. Checking out the location before hand
d. Unlawful entry to the place where the crime will occur
e & f. Possession of materials to be used for the crime that have no other
g. Solicitation of someone to commit the crime
b. Example – State v. Reeves
State v. Reeves
Facts: 12 year-old students try to kill their homeroom teacher with rat poison.
Rule: The court uses the substantial step test and says that under this test, the act
of brining the rat poison to class was a substantial step toward the commission of
Comments: Under the MPC, ’s would be guilty under §5.01(2)(e or f).
5. Punishing Pre-Attempt Conduct
a. In General – solicitation and conspiracy are two specific pre-attempt crimes
that are punishable. However, other types of pre-attempt conduct is
punishable under certain statutes in some J/D
b. Example – US v. Alkhabaz – statute in Michigan preventing the interstate
transmission of threats.
US v. Alkahabaz
Facts: wrote stories about the rape, mutilation and murder of a girl at his
school on the internet and he was charged under the Michigan statute prohibiting
interstate communications containing threats to kidnap or injure another person.
Rule: A threat must be (1) a serious expression of an intention to inflict bodily
harm, and (2) perceived to be intended to effect some change or achieve some
goal through intimidation.
Comments: There was no intended goal so was not guilty. He didn’t ever
directly express the threats to her.
E. Special Defenses
a. Impossibility in Law – The act that contemplated, even if carried out,
would not be a crime because the intended act is not criminal.
b. Impossibility in Fact – A fact that is unknown to prevents him from
reaching his criminal culmination.
c. Common Law – At common law, legal impossibilities were a defense, but
factual impossibilities were not.
d. MPC – MPC gets rid of the legal/factual impossibility distinction because it
wants to punish intent.
(1) §5.01(1)(a) – Conduct Crimes – punishes attempts if believes they are
committing a crime, even if the attendant circumstances are not as
thinks and therefore the act is not really a crime.
(2) §5.01(1)(b) –Result Crimes – punishes attempts if believes that their
conduct will cause a result, even if it really won’t.
e. US v. Thomas – the court “just decides” to get rid of the common law
impossibility rules and adopt the MPC Approach.
US v. Thomas
Facts: ’s has sex w/ a dead person but they didn’t know she was dead and they
were charged w/ attempted rape
Rule: Generally, the court says that a person is guilty of attempt if they intended
to commit a crime and would have if the attendant circumstances were as they
thought they were, even if the acts they performed weren’t really a crime.
Comments: The court throws out the common law approach and adopts the
a. Commonwealth v. McCloskey – if a person is in a situation where they can
still abandon the attempt voluntarily, it is still preparation.
Commonwealth v. McCloskey
Facts: McCloskey tried to escape from prison and then voluntarily decided not to
before he had actually escaped, and he was convicted of attempted prison breach.
Rule: The majority says that McCloskey’s acts still constituted preparation
because he was still w/in the prison and he still had an opportunity to voluntarily
abandon the act.
Comments: Cercone’s concurrence says that had gotten to the point where his
acts would have constituted an attempt if guards had stopped him, but that
voluntary abandonment was as defense. (This is probably how it would have
been decided in an MPC J/D)
b. MPC (§5.01(4)) – Voluntary abandonment is an affirmative defense.
II. Solicitation – The asking, enticing, inducing, or counseling of another to commit a crime. The crime
is completed when you ask.
A. State v. Cotton – Communication is REQUIRED.
State v. Cotton
Facts: wrote to his wife to ask her to prevent her daughter from testifying against him, but
his wife never received the letters.
Rule: In this J/D, the offense of solicitation requires some form of actual communication
from the to the person intended to be solicited.
B. MPC (§5.02)
1. Solicitation is committed when encourages, commands, or requests another person to
commit a crime with the intent to facilitate the commission of that crime.
2. It is immaterial that the actor fails to communicate with the solicited person if his
conduct was designed to effect communication.
3. Trying to prevent a crime that you originally solicited is an affirmative defense.
General Defenses to Crimes
Justification – ’s conduct is deemed to be socially tolerable. ’s actions constituted a crime but he
had a good reason and in the long run the crime promoted social good (lesser of all evils). Self-
Defense and Killings by Police Officers to prevent crimes are examples.
I. Self Defense
A. General Principles
1. Common Law
a. Deadly Force Justified When:
(1) Not the Aggressor
(2) Necessary to combat imminent, unlawful deadly force
(3) Belief was Reasonable (Belief of Necessity)
b. Proportionality Requirement – at common law, it was required that the force
be proportional to the threat. If non-deadly force could be used, then the use
of deadly force was not justified.
c. Retreat – at common law, was required to retreat if possible.
**** most modern J/D DO NOT require retreat****
d. Exceptions to Retreat Rule – at common law, retreat was not required in two
(1) No Place of Safety – if there was no place of complete safety, for
example, if retreating would put in more danger, then retreat was
(2) Castle Doctrine – the castle doctrine said that if you were at home,
you weren’t required to retreat.
2. MPC (§3.04)
a. Aggressor Issue (§3.04(2)(b)(i) – SD is not a justification if provoked the
deadly force against him.
b. Retreat Required (§3.04(2)(ii) - has a duty to retreat if he knows he can
avoid the necessity of using force.
c. Two Exceptions to Retreat Requirement
(1) Castle Doctrine (§3.04(2)(ii)(1)) - does not have to retreat form his
home unless he is the initial aggressor.
(2) Public Officers (§3.04(2)(ii)(2)) – if is a public officer and is doing
his job, he does not have a requirement to retreat in order to prevent
the necessity of using deadly force.
3. Peterson J/D (US v. Peterson) (stealing windshield wipers, came out w/ gun, lug
wrench, shot guy w/ lug wrench)
a. Aggressor Issue – SD is not a defense if you are the aggressor (agrees w/
MPC and Common Law).
(1) Rule – SD is not an excuse for homicide if the person claiming it
created the situation necessitating it.
b. Retreat Issue – although most modern J/D DO NOT require retreat, the
Peterson J/D DOES require retreat.
c. Castle Doctrine – Peterson says that the castle doctrine exception does not
apply when you are the initial aggressor. (Agrees w/ MPC)
4. Application of SD Justification
a. Public Duty Killings – Killing is justified w/ public duty killings
(1) Death Penalty
(2) Public Officials
(3) Preventing a Crime (by private citizens)
b. Moral Forfeiture – when a person does criminal acts, they may forfeit their
right to live. (their life no longer has a value)
c. Personal Autonomy – doesn’t focus on the lack of value of the life of the
criminal, but says that a person has the right to protect their life.
d. Right To Resist Unlawful Aggression – focuses on the government’s duty to
protect its citizens. When the govt. is not there to protect, private citizens
have a right to protect themselves.
e. Lesser Evils Doctrine – the aggressor’s conduct makes his death a lesser evil
than the death of the innocent person.
B. “Reasonable Belief” Requirement – Objective, Subjective or Mixed Standard?
1. Goetz J/D (People v. Goetz – fucking bastard who killed 4 kids and got off on SD)
a. Law on Use of Deadly Force – the use of deadly force is ok when:
1. Reasonable belief that the other person is going to use deadly force
2. Reasonable belief that the other person is committing or attempting to
commit robbery, kidnapping, forcible rape, or forcible sodomy.
3. Reasonable belief that deadly force is necessary to stop the other
person from using deadly force or committing the crime.
b. Objective Standard – the NY Court of Appeals said that it used an objective
standard to determine the reasonableness of ’s actions, but the standard is of
a reasonable person in ’s situation w/ circumstances as known to .
2. MPC – Imperfect/Incomplete SD Doctrine
a. Subjective Standard (§3.04(1)) – deadly force is justifiable when believes
that such force is necessary to protect himself against the use of unlawful
force by the other person on that specific occasion.
b. Limitations on Subjective Standard (§3.09(2)) – the subjective standard of
reasonable belief is not allowed when recklessness or negligence establishes
culpability and the belief is reckless or negligent (unreasonable).
1. Negligent Belief – if ’s belief was negligent (honest but
unreasonable) then they can be guilty of negligent homicide (mens
rea is negligence).
2. Reckless Belief – if ’s belief was reckless (“they might rob me so I’ll
shoot just in case”) then can be guilty of manslaughter. (mens rea
3. Wanrow J/D (State v. Wanrow - shot child molester as a “reflex”)
a. Mixed Standard – in determining reasonableness, you can take into
consideration subjective characteristics of such as physical attributes,
gender, size and prior experiences.
(1) Rule – In determining if engaged in what is legally permissible SD,
his or her actions are to be judged against his or her own subjective
impressions, and not those which a detached jury might determine to
be objectively reasonable.
4. Battered Women Syndrome
a. Battered Women’s Syndrome as a Defense – BWS, where allowed as a
defense, is an exception to the usual requirement that SD be in response to an
imminent harm. With BWS, women are under the control of their husbands,
and they feel they can’t leave, therefore, according to experts, the fear of
imminent harm is always there.
b. State v. Norman (wife killed sleeping husband)
(1) Mixed Standard – uses a subjective standard as to what believes
(if she believes that she needs to use deadly force) and an objective
standard as to whether the belief is reasonable.
(2) Appellate Court – SD Allowed – where there is evidence of BWS,
neither an actual attack nor the threat of attack is required to justify
the wife’s killing of her husband in SD.
(3) Supreme Court – SD Not Allowed – habitual spousal battery is not
a defense to murder under SD unless there is an imminent harm
based on an attack or threat at the time of the murder. No jury could
find a fear of imminent harm when husband is sleeping.
A. General Requirements (Commonwealth v. Leno)
1. Necessity Defense has 4 Elements
a. Clear and Imminent Danger
b. Reasonable Expectation that the Action will Abate the Danger
c. No Legal Alternatives
d. Legislature has not Precluded the Defense by a Clear and Deliberate Choice.
Commonwealth v. Leno
Facts: ’s operated a needle sharing program in order to combat the spread of AIDS, and
needle sharing programs were in violation of a state law requiring a prescription for
distribution of such needles.
Rule: A jury instruction on necessity is warranted only if there is evidence that would
raise a reasonable doubt whether ’s actions were justified as a choice between evils.
Comments: In this case, the court said a necessity instruction was not warranted b/c
there was no clear and imminent danger, there were legal alternatives such as going to the
legislature, and the legislature has specifically forbidden needle sharing programs by
making the law when they knew about the danger of AIDS.
B. Civil Disobedience
1. Two Types
a. Direct Civil Disobedience – protesting a law by breaking that law (e.g.
segregation law protests)
b. Indirect Civil Disobedience – protesting a law/policy by breaking a different
law. (e.g. US v. Schoon – protesting policies about El Salvador by
trespassing in the IRS)
2. Indirect Civil Disobedience is NEVER a NECESSITY – the court in US v. Schoon
said that indirect civil disobedience could never warrant a necessity defense b/c:
a. The existence of a law or policy you don’t like is not an imminent harm
b. There is no causal relationship – the protest is unlikely to change the policy.
c. There is always the legal alternative of congressional action.
C. MPC (§3.02) – No Imminence Requirement
1. Under MPC, for a Necessity Defense you Need: (§3.02(1))
a. Evil Avoided > Evil Caused
b. No specific exceptions or defenses for the specific situation
c. Legislative purpose to exclude the justification must not exist.
2. Exceptions (§3.02(2)) – if was reckless or negligent in bringing on the situation
where the choice of evils was necessary then there is no defense of necessity if the
mens rea for the crime is recklessness or negligence.
Excuse - did cause the harm, but they shouldn’t be punished because they are not morally
blameworthy, usually because they did not have control over their actions. We recognize that ’s
conduct is not ok, but we excuse it. Insanity is an example.
A. Involuntary Intoxication – Involuntary Intoxication is a complete defense if it causes to
commit a crime that he would not otherwise have committed.
1. What is Involuntary Intoxication?
a. Unwitting Intoxication – a person is unaware that they are ingesting alcohol
or a drug.
b. Coerced Intoxication – a person is forced to ingest a drug or alcohol.
c. Pathological Intoxication – if medication or alcohol produces an unexpected
grossly excessive effect (e.g. aspirin has the same effect as LSD on a
particular person involuntary intoxication).
B. Voluntary Intoxication – Generally, voluntary intoxication can only be used as a defense to
specific intent crimes (crimes that require a particular purpose, motive or sophisticated mental
state) where intoxication negates the mens rea.
1. Restrictive Approach – in some J/D, voluntary intoxication can only be a defense to
1st degree murder.
2. Most J/D – most J/D follow the rule that voluntary intoxication can be a defense for
other specific intent crimes besides 1st degree murder.
Commonwealth v. Graves
Facts: ’s entered the residence of an elderly man, beat him and robbed him while they
were drunk. argued that intoxication was a defense to his convictions of burglary and
robbery b/c he was unable to form the intent to commit those crimes.
Rule: Voluntary intoxication may be a defense to crimes other than premeditated murder.
Comments: In this case, the court found that voluntary intoxication could be a defense to
burglary and robbery if the mens rea elements are negated.
C. MPC (§2.08) – Voluntary and Involuntary Intoxication can be Defenses
1. Involuntary Intoxication (§2.08(4) – intoxication which is not self-induced or is
pathological can serve as a full defense if it causes the actor to not know what he is
doing or to lose the ability to act legally.
2. Voluntary Intoxication (§2.08(1)) – Voluntary intoxication is a defense ONLY if it
negates the mens rea element of the crime.
a. Reckless or Negligent Crimes (§2.08(2)) – if the mens rea is recklessness or
negligence, voluntary intoxication is NOT A DEFENSE.
A. Legal Concept – insanity is a legal standard. Although medical findings are considered in the
legal determination, ultimately, whether a person will be excused from responsibility b/c of
insanity is a legal, social, and moral decision.
B. Justifications for Insanity (US v. Freeman) – neither rehabilitation, deterrence or retribution
justify punishing the insane.
1. Rehabilitation – putting insane/sick people in jail will not cure them, they need to be
put in a mental hospital.
2. Deterrence – you can’t deter people who are substantially unable to restrain their
conduct, and their punishment is not an example to others who are insane b/c they
can’t rationally weigh the consequences of their conduct.
3. Retribution – if there is no moral culpability then retribution would punish the insane
as a sadistic form or revenge, and this cannot be justified by retribution.
C. Tests For Insanity
1. The M’Naghten Test – Under the M’Naghten test, a defendant is insane if he does not
know the nature and quality of his acts or that his acts are wrong.
a. Nature and Quality of Acts – if , as a result of a mental disease or defect,
does not understand what he is doing, he is legally insane.
b. Know Acts are Wrong – even if understands what he is doing, if he does
not realize that his acts are morally or legally wrong then he is legally insane.
2. Irresistible Impulse Test – a person is legally insane if, due to a mental disease or
defect, he would have been unable to stop himself even if there had been a
policeman at his elbow at the time he committed the crime. has no power to
choose between right and wrong.
3. MPC (§4.01) - is insane if at the time of his acts, as a result of a mental disease or
defect, he lacks substantial capacity either to appreciate the criminality
(wrongfulness) of his conduct or to conform his conduct to the requirements of the
a. Encompasses all Common Law Tests – the MPC test seems to encompass all
the Common Law tests w/ it’s insanity test. The “lacks capacity to
appreciate the criminality of his conduct” element encompasses and expands
on the dual pronged M’Naghten test, and the “conform his conduct…”
element encompasses the irresistible impulse test.
b. State v. Johnson – rejects the M’Naghten test as being too restrictive and
adopts the MPC insanity test.