Criminal Law outline S13

Criminal Law
Schulhofer Spring 2013

Evidence
 Whoever is presenting the evidence has the burden of proving its admissibility
 Relevance
1. Probative – tends to establish the proposition for which it is offered, or the proposition is more likely to
be true in light of the evidence
2. Material – affects the outcome of the case under applicable law
 Relevant evidence isn’t permitted:
o Self incrimination
o Evidence obtained illegally
o Prejudicial effect outweighs probative value
 Federal Rules of Evidence
o FRE 403 – relevant evidence may be excluded if it’s probative value is outweighed by the danger of
prejudice
o FRE 404(b) – evidence of other crimes is not admissible to prove the character of a person; it may be
admissible to prove motive/opportunity/intent/knowledge/absence of mistake
o FRE 413(a) – past sexual offenses may be admitted as relevant evidence (Violent Crime Control and Law
Enforcement Act of 1994)
 People v. Zackowitz: ∆’s conviction of 1st degree murder was reversed and a new trial ordered because the DA
introduced prejudicial evidence of other weapons in the ∆’s apartment that had no probative nor material value

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Process
 Duncan v. LA: the ∆ asked for a jury trial and was not given one; court held that the 14th Amendment isn’t optional
and you can’t deprive anyone of life/liberty/property without due process; jury trial is required for due process
 Policy
o Pro
 Jury trial is granted to prevent oppressions, protect against unfounded criminal charges and
corrupt judges
 Prevent judges from enforcing under/over-inclusive laws
 Check on the discretionary power of prosecution
 Opportunity for community values of culpability to affect outcomes
 Don’t want just one person’s experience/knowledge affecting someone’s freedom, better to have
a panel than one judge
o Con
 Some people believe juries aren’t capable of understanding evidence of issues of fact and law, or
are more influence by non-legal factors
 Juries are expensive and tax the citizens time
 Judges are better trained and have more experience
 Scope of the right to trial by jury
o Williams v. FL: 12 jurors isn’t required, 6 is fine
o Apodaca v. OR: unanimity isn’t required, 11-1 or 10-2 is fine
o Baldwin v. NY: 6+ months of potential jail time is sufficient to entitle the ∆ to a jury trial
o Taylor v. LA: venire (pre-jury options of people) must reflect a fair cross section of the community to
represent the ∆’s peers and ensure impartiality
o Batson v. KY: can’t remove potential jurors for race or gender
 U.S. v. Dougherty: jury nullification is fine, but the judge’s instructions shouldn’t remind them of this because it risks
anarchy; can’t compel jurors to nullify
o U.S. v. Moylan: to encourage jurors to make their own determinations as to which law they will obey
gives them the option to disregard any law or standard
o State v. Raglan: with jury nullification, jurors are told that they are the law and can convict or acquit as
they see fit, which leads to an inequality of judgment across cases; jury nullification should be limited
 Policy
o Pro
 Necessary for cases where the law doesn’t consider culpability and would produce undesirable
results
 Juries consider issues of culpability in sentencing more than the hard system
 Gives jurors a sense of personal responsibility for the outcome of the case
o Con
 Impedes the truth-seeking function of the criminal process
 Leads to inequality across judgments

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Punishment
Justifications
 Utilitarian: punishment is justified if, under a cost/benefit analysis of the punishment to the criminal and to society,
the benefits outweigh the costs
o The object of laws is to increase happiness of the community and decrease mischief
o Seek general and specific deterrence and rehabilitation
 Retributive: punishment is justified because criminals deserve it
o Looks to the seriousness of the offense
o Degree of punishment based on moral culpability (not the greater good of society)
 Guilt is sufficient to warrant punishment, don’t need to look to prevention of future crimes
 Moral culpability both justifies punishment and gives society the duty to punish
o Purpose of punishment is to make all people equal so criminals don’t gain an unfair benefit from their
crimes
o Seek proportionality of punishment to culpability
 Retaliation/vengeance: punishment is justified as an effort to right the harm caused by the crime
 Social cohesion: punishment is justified as an effort to reinforce the social cohesion of law
o Public expression of condemnation of an offender is valuable
 Expressive: punishment is justified because it makes the criminal an equal player to the other citizens
o Gives the criminal dignity by treating them as a responsible moral agent
o Repudiates the offender claim of superiority over the victim
 Mixed theories
o H. Hart: goal of punishment is to never punish an innocent person and never punish a guilty person
beyond his blame; social benefit is necessary but not sufficient for just punishment and retribution is a
necessary but not sufficient condition of just punishment
o S. P. Garvey: punishment’s purpose is to reduce crime and protect the rights of other members of society;
punishment is only legitimate if the person committed a crime, if it’s in proportion to that crime, and only
if doing so would produce a world with less crime
Policy
 Deterrence
o Specific: deter the individual from committing crimes again
o General: deter the general population from committing crimes
 Rehabilitation: to bring the criminal back into society as a functioning, contributing member
 Incapacitation: keeping a criminal off the streets to protect general safety
 Severity
 Certainty
 Resources: how expensive is prison as compared to other punishments
Requirements for just punishment
1. Legality
o The legality principle: a person can’t be punished unless his conduct was defined as criminal before he
acted; rule against retroactive punishment
 Commonwealth v. Mochan: nulla poena sine lege, no punishment without law to give people
sufficient notice that they will be subject to prosecution and legal remedies and to avoid
retroactivity and vagueness
 McBoyle v. U.S.: interpret statutes narrowly to give the public fair warning that their
conduct is criminal
o Constitutionality
 Bill of rights imposes limits on the criminal process but are generally only applicable to the
federal government
 Duncan v. LA: amendments 1-8 only apply to the federal government, but the 14th
Amendment’s requirement of due process applies to the states as well
 1st: freedom of speech
 4th: unreasonable searches and seizures

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 5th: double jeopardy
 8th: cruel and unusual punishment
 14th: due process clause; effect is essentially to make the bill of rights applicable to the states
o Vague on its face vs. vague as applied
 Vagueness on its face results in enjoining the application of the statute
 Vagueness in its application just means they have to dismiss this one cas
o City of Chicago v. Morales: vagrancy law at issue is unconstitutionally vague and so is unconstitutional
on its face
 Kolender v. Lawson: two things make a criminal law invalid for vagueness
1. Fails to provide notice to enable people to understand what’s prohibited
o U.S. v. Reese: The Constitution doesn’t allow a law to set a large net to catch all
offenders and leave it to the courts to say who can rightfully be detained
o Coates v. Cincinatti: no standard of conduct is specified at all, so the law is too
vague
2. Authorizes arbitrary and discriminatory enforcement
o Kolender v. Lawson: must establish minimum guidelines to govern law
enforcement
o Speaks to criminal law’s primary purpose as giving guidelines to law
enforcement and not as setting rules for the public
o Cox v. Louisiana: the Constitution requires government by clearly defined laws,
not the opinions of a policeman
 Papachristou v. City of Jacksonville: leading case on constitutionality of vagrancy-type law;
Basically there was a law that defined everything from being a ‘habitual loafer,’ playing
‘unlawful games,’ to ‘habitually living upon the earnings of their wives’ as ‘vagrants’; SC held
the ordinance unconstitutional for vagueness due to lack of notice to citizens and excessive
discretion to police
o Nash v. U.S.: SC upheld conviction for violating of the Sherman Antitrust Act; To the objection that the
crime contains a degree as to which estimates may differ resulting in imprisonment of an honest man
because he didn’t anticipate the judgment of a jury, the SC said that the law is full of times where a man’s
fate depends on his estimating rightly
o U.S. v. Ragen: SC saying that the mere fact that a statute is framed so as to require a jury to determine
reasonableness is not sufficient to make it too vague to afford a practical guide to permissible conduct
o State v. Sanko: Montana SC held that state law prohibiting driving at unreasonably fast speeds
unconstitutionally vague on its face, saying that the statute impermissibly delegates how fast is too fast to
police, judges, and juries, with no specification as to how to weigh contributing factors, making it hard for
a citizen to know what conduct is prohibited
2. Culpability
o Three elements
 Voluntary choice
 Knowledge of consequences or risk of harm/fair notice
 Ability to do otherwise
o MPC §2.02:
 Requires one of the following with respect to a material element of the offense
1. Purposely: conscious object to act or cause a result or an awareness of circumstances
leading to a result and a desire to cause the result
2. Knowingly: aware of his conduct and/or the probability of certain results
3. Recklessly: conscious disregard of a substantial and unjustifiable risk
4. Negligently: should be aware of a substantial and unjustifiable risk
 When the law doesn’t prescribe a mental state required for a material element, purposeful,
knowing, or reckless action is enough
 When the law prescribes a mental state but doesn’t specify which elements of the offense it
applies to, it is presumed to apply to all of them unless there is a plain purpose to the contrary
o Strict liability: liability without any culpability with respect to at least one material element of an offense
 U.S. v. Balint, 1922: ∆s were indicted for violating the Narcotic Act of 1914 for selling
derivatives of opium without permission, min. 5 years in prison; SC held that proof of ∆’s

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knowledge that they were selling prohibited drugs isn’t required by the statute; A state may, in
the maintenance of public policy, provide that he who acts in this way does so at their own peril
and there will be no defense of good faith or ignorance
U.S. v. Dotterweich, 1942: the president of a pharmaceutical company was prosecuted for
shipping misbranded products in interstate commerce after the company bought drugs from
manufacturers and repackaged them, continuing labeling mistakes made by the manufacturer; SC
affirmed the conviction, saying the statute required no mens rea with respect to whether those
charged knew or should have known that the shipment was mislabeled
 The interest of the larger good, the general population, puts the burden of discovery of
potential hazards on the shoulders of those who have the opportunity to inform
themselves, rather than n the helpless and innocent public – doesn’t require awareness of
wrongdoing
Public welfare offenses
 U.S. v. Dotterweich: so long as the ∆ knows he is dealing with a dangerous device that
places him in responsible relation to a public danger, the burden is on the ∆ to figure out
whether his actions are illegal
Strict liability can be inferred from a lack of required mens rea where
 The purpose of the law would be obstructed by requiring mens rea
 The law is designed to protect the public welfare
 The potential harm would endanger a lot of people
 The penalty is low; felonies shouldn’t be strict liability
MPC §2.05: strict liability violations can only result in fines, imprisonment requires proof of
some mens rea

3. Proportionality
o Punishment as proportional to the crime’s seriousness/culpability
o 8th amendment prohibition of cruel and unusual punishment
 In capital cases
 Kennedy v. LA: where a crime doesn’t lead to death, capital punishment is against the 8th
Am., so no death penalty for non-deadly rape
 Atkins v. VA: execution of mentally retarded people for deadly crimes is against the 8th
Am. because retarded people have lesser culpability and the deterrent function of the
penalty is less likely to be served
 Roper v. Simmons: death penalty for persons under 18 at the time the crime is committed
violated the 8th Am.
 In non-capital cases: it is really hard for a ∆ to convince a court that his sentence is so
disproportionate as to violate the 8th Am.
 Ewing v. CA: the 8th Am. wasn’t violated where California’s three strikes law was used to
produce a sentence of 25 to life for a repeat felony offender who stole goods
Sentencing
 Mitigating factors
o Helping the government
o Letters on their behalf
 Versus letters or testimony from the victims and their family
o Whether or not they were honest and express some moral guilt
o
 U.S. v. Madoff: Maximum sentence is 150 years; no real mitigating factors to his credit, but any sentence beyond 20
years is symbolic because of his age – saying the symbolism is important
o Retributive: punish him in proportion to his blame, message must be sent that this kind of crime does not
go unpunished and society will give him what he deserves
o Deterrence: send a strong message to those who would engage in the same crime
o For the victims: reinforce that their broken trust will be avenged
 U.S. v. Jackson: previous convictions for four armed robbery make a life sentence in prison acceptable for a simple
robbery; specific deterrence failed, so we have to consider general deterrence and incapacitation

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 U.S. v. Johnson: ∆ embezzled money with someone else, the other person was given 2 years and ∆ here got home
detention because she was in charge of caring for 4 children and didn’t want them in foster care

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Elements of a crime
1. Actus reus: voluntary act
2. Mens Rea: culpable intent
3. Concurrence of actus reus and mens rea
o Requires both
 Concurrence between the ∆’s mental state and the act: mental state required at the time of the act
 Concurrence between the ∆’s mental state and the harmful result
4. Causation of harm
o MPC
 §2.03: conduct is a cause when the result wouldn’t have occurred but for the conduct, and the
relationship between conduct and result satisfies any additional requirements in the law
 Purposely or knowingly: result must be within the contemplation of the actor
 Recklessly or negligently: actor should be aware of the potential results
o Cause in fact
 But for cause
 Substantial factor
o Proximate cause
 Transferred intent: The fact that the victim actually hurt was not the intended victim of the crime
is not a defense; the intent to harm any person is transferred to any victim who actually gets hurt
 Fairness question: is the result so removed as to make liability for the ∆’s actions unfair
 Year and a day rule: common law rule saying that a proximate cause is too removed if it
occurs more than a year and a day after
 Dependent vs. intervening act

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Actus Reus
MPC
 §2.01: not guilty unless liability is based on conduct which includes a voluntary act or an omissions
o Defines not voluntary acts
o Can only be based on an omissions if there is a duty imposed by law
o Possession is an act
 §2.02: requirements for culpability
Requirement of voluntary action
 Cogitationis pienam nemo patitur – you are not punishable solely for your thoughts
 As to each element of the offense
o Martin v. State: where the required elements of the offense are (1) drunk, (2) causing a disturbance, (3) in
public, and the ∆ wasn’t in public voluntarily, all elements of the crime weren’t voluntary and so the ∆
can’t be fairly punished
o People v. Low: ∆ was arrested for driving a stolen car and taken to jail, where a search found drugs in his
socks; court upheld the conviction for bringing a controlled substance into a jail, saying that he had
sufficient opportunity to get rid of the drugs before being brought to jail, which is sufficient to establish
voluntariness
 As opposed to State v. Eaton, 2010: where a man was convicted under a similar statute, and the
Washington SC held Martin controlled, saying the ∆ had no choice other than to surrender
evidence that would convict him of another crime, so failing to see a voluntariness requirement
would produce absurd results
o Jones v. City of LA: ordinance made it illegal for any person to sleep on any street, and homeless people
brought a suit to enjoin its enforcement at night because LA had too few beds in shelters for all the
homeless people so convicting them would punish them for involuntary and unavoidable consequences;
held that the state can’t criminalize being human
 Involuntary defenses
o Bratty v. Attorney-General: no act is punishable if done involuntarily
 Involuntary act means an act that is done by the muscles without any control by the mind
(automatism, a reflex, a convulsion, etc.) or an act done by a person who is not conscious of what
he is doing (sleep walking, etc.)
 An act is not involuntary simply because the actor doesn’t remember it or because he can’t
control his impulse to do it
o Reflex or convulsion
o Unconsciousness
 People v. Newton: where not self-induced, unconsciousness is a complete defense to a charge of
criminal homicide
o No defense of involuntariness is available where the ∆ voluntarily acted to put himself in a mental state
where his actions would otherwise be involuntary
 People v. Decina, 1956: ∆ had a seizure while driving on a highway; SC held that because he
knew he was epileptic and willingly drove knowing the potential consequences, he was culpably
negligent
 Awareness of a conditions which you know may produce certain consequences, and a disregard
of the consequences, renders you liable for culpable negligence
Omissions
 Voluntary omissions to act are only culpable if the action is legally prescribed
o Pope v. State: Moral obligations don’t amount to legally sufficient obligations to act
 Jones v. U.S.: no automatic duty to help others exists outside legal duties
o People v. Beardsley: the duty neglected must be a legal duty, not just a moral obligation, imposed by law
or contract, and the omission to perform the duty must be the direct cause of death
 State v. Martinez, Haw. 2003: ∆ didn’t get medical held when his girlfriend beat her daughter,
killing her; convicted of reckless manslaughter and sentenced to 10 years because his omission
and awareness of the danger to the child directly caused her death

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Four situations where failure to act may be a breach of a legal duty
1. Statute imposes a duty to care for another
 People v. Beardsley, 1907: Married man was having an affair with a woman who
overdosed while at his house and died; MI SC reversed the conviction because the ∆
didn’t owe the decedent a legal duty
2. One is in a certain, special relationship to another
 Commonwealth v. Cardwell, 1986: ∆ was convicted of child abuse for failing to take
sufficient steps in the interim between when her daughter confessed sexual abuse by the
∆’s husband and when the daughter ran away from home; person charged with duty of
care is required to take steps that are reasonably calculated to achieve success
 People v. Carroll, 1999: NY CoA upheld the indictment of a stepmother charged with
child endangerment from failing to prevent her husband from killing his daughter during
a temporary visit; because she was the functional equivalent of a parent, she was legally
responsible for the child’s case
 State v. Miranda, 2005: CT SC overruled a conviction of a man who was the live-in
boyfriend for failing to protect a baby from a fatal beating by her mother, saying parental
liability shouldn’t be expanded (in this case) beyond legal parent or guardian because of
the difficulty of determining in advance what the boundaries of this criminal liability will
be, and it is too based on hindsight; plus it places too much power in the hands of the
state
3. One has assumed a contractual duty to care for another
4. One has voluntarily assumed the care of another an secluded the person so as to prevent others
from helping
 Commonwealth v. Pestinikas: ∆ was convicted of murder in the third degree after
allowing a 92 year old man to starve to death after agreeing to feed him and knowing
there was no other way for him to get food
 Statutory duties to rescue in some states
o Minnesota, Rhode Island, and Vermont make is a criminal offense to refuse aid to a person in peril
o Florida, Hawaii, and Wisconsin require bystanders to be Good Samaratins when the person in peril is the
victim of a crime (more limited than one that proscribes a duty to aid after natural disasters, etc.)
 Duty to act created where your voluntary action created a potential for harm
o Jones v. State: one who, by a criminal act, puts another in danger of drowning has a duty to save her life
o Commonwealth v. Levesque, 2002: MA SC upheld the conviction of a ∆ for involuntary manslaughter
after the ∆ accidentally started a fire, became aware of the fire, and failed to report it, resulting in the
death of six firefighters
o R. v. Evans, 2009: ∆ gave her sister heroin, and the sister overdosed, and the ∆ didn’t get help; ∆ was
convicted of manslaughter and it was upheld because she had duty to rescue triggered because she had
contributed to the perilous situation
o State v. Lisa, 2007: NJ SC upheld the dismissal of a charge of reckless manslaughter when the ∆ gave his
girlfriend meth and didn’t report her unconscious state to medical authorities, resulting in her death,
because there was not sufficient notice to the ∆ of a legal duty for which he can be held liable for criminal
omission

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Mens Rea
MPC
 §2.02: categories of mens rea
o Four categories
1. Purposely
2. Knowingly
3. Recklessly
4. Negligently
o State of mind has to apply to all material elements
 An element is material if it is a characteristic of behavior (conduct, circumstances, result) that,
combined with culpability, constitutes an offense
o Narrow distinction between acting purposely and knowingly
 Knowledge that the requisite external circumstances exist is an element of both
 Purposeful required conscious object to perform an action of that nature or to cause such a result
– not just simply aware that the conduct is of the required nature or that the prohibited result is
certain to follow
o Recklessness: conscious risk creation
 Aware of the risk, but less certain of the probability of the result than with acting knowingly
 Subjective awareness of substantiability of risk
o Consciously aware of risk
o Substantial
o Unjustifiable
o Recklessness vs. negligence
 Negligence is less culpable because the actor acts inadvertently; should have been aware of the
danger but wasn’t
 Recklessness is more culpable because the actor was aware of the danger but acted anyway
o Knowingly: knowledge is established with awareness of a high probability of its existence, even if the
actor doesn’t believe it exists
 When a statute is silent as to the mens rea required, purpose/knowing/reckless is enough
Purposely/intentionally
 Specific intent
o Actions must be done with some specified purpose in mind
o Crime that requires the ∆ have actual knowledge (subjective awareness) or some fact or circumstance:
conduct + attendant circumstance
 General intent
o ∆ can be convicted if what he did was an intentional action in ordinary language
o Awareness of the attendant circumstances need not be proved; some lesser mental state (recklessness or
negligence) will suffice
 Conscious object to engage in some conduct or cause some result
 Not the same as knowingly; requires a desire to produce some result
Knowingly
 U.S. v. Jewell: where a ∆ is aware of facts indicating a high probability of illegality, but purposely fails to
investigate because of a desire to stay ignorant, he has knowledge of the illegality; positive knowledge isn’t
required
Negligently
 U.S. v. Ortiz: requires nothing more than carelessness
 State v. Chavez: negligence requires a gross departure from normal standards of care
 State v. Hazelwood: ∆, captain of an oil tanker, ran his ship aground on a reef, spilling 11 million gallons of oil in
ecologically sensitive waters, and was prosecuted under a statute that made it an offense for any person to discharge,

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or cause or permit to be discharged, petroleum on the waters or land of any state without a permit; SC of AK held
that a person acts negligently when he fails to perceive a substantial and unjustifiable risk that some harm with occur
o Criminal negligence requires a risk of such a nature and degree that the failure to perceive is constitutes a
gross deviation from the standard of care that a reasonable person would observe; requires the jury to find
negligence so gross as to merit punishment
 As opposed to the level of risk required to prove civil negligence
 Santillanes v. New Mexico: when moral condemnation attach to conviction of a crime (so
always), the elements of the crime should reflect a mental state warranting that contempt,
so the mens rea requirement for criminal negligence is beyond that of civil negligence
 As opposed to recklessness, which requires simply awareness of the risk of harm
Willful blindness
 Global Tech Appliances Inc. v. SEB SA, 2001: SC, in a civil suit requiring proof of a knowing patent infringement,
said that willful blindness has two basic requirements
1. ∆ must subjectively believe there is a high probability that the fact exists
2. ∆ must take deliberate actions to avoid learning of the fact (active avoidance)
 Not required under the MPC
 U.S. v. Giovannetti, 7th Cir. 1990: ∆ was convicted of aiding and abetting a gambling operation by renting his house to
people he knew were gamblers; there was no direct evidence of ∆’s knowledge, but he made no inquiries as to the
intended use of the house, so the court reversed his conviction holding it an error to give an ostrich instruction where
the ∆ didn’t deliberately act to avoid acquiring knowledge
o Active avoidance doctrine – not enough to do nothing to prevent the truth from being communicated, ∆
has to act to avoid learning the truth
 U.S. v. Heredia, 9th Cir. 2007: ∆ was caught with a shit ton of weed in the trunk of her car and admitted she smelled
something funny but didn’t pull over to check because she was afraid it might be dangerous; CoA upheld the
conviction because ∆ didn’t have positive knowledge only because she deliberately avoided it; two prongs of the
ostrich doctrine:
o ∆ must reasonably believe there is a high chance that a crime is occurring
o And take deliberate steps to avoid actual knowledge
Mistake
 MPC §2.04: claims about mistake must be resolved by determining whether the mistake negates the mens rea required
for the crime; disfavors criminal liability in the absence of subjective fault
o Ignorance or mistake is a defense when it negates the existence of a state of mind that is essential to the
commission of an offense or when it established a state of mind that constitutes a defense
 Mistake of fact
o Regina v. Prince: ∆ had sex with an underage girl without the consent of her father, said he didn’t know
she was underage; court said that having sex with her without asking her dad was illegal anyway, mistake
of fact is not even a partial defense where the action is criminal even with the mistake of fact
 Lesser crime principle: when ∆ knowingly commits a crime, he runs the risk of his crime
resulting in a greater crime
 ∆ can’t raise a mistake of fact as a defense in this situation
o Where ∆ asserts mistake of fact, the prosecution has to prove that the ∆ knew or should have known of
the material element at issue
 State v. Benniefield, Minn. 2004: ∆ was convicted of possession drugs within 300 ft of a school;
court held that the prosecution has to prove that the ∆ knew he was in possession of drugs, but the
∆ could be convicted without proof that he knew or should have know he was near a school
o People v. Olsen: A mistake of fact relating only to the gravity of an offense won’t shield a deliberate
offender from the full consequences of the wrong committed
o B (a minor v. Director of Public Prosecutions: the reasonableness of the belief is irrelevant, so long as the
belief is proven; if you believe that what you’re doing isn’t a crime, you’re not intending to commit a
crime
 Mistake of law
o Generally no defense

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 U.S. v. Cordoba-Hincapie, EDNY 1993: denying a defense for a mistake about the seriousness of an offense violated
the requirement that punishment be calibrated to the degree of culpability
Maliciously (not in the MPC)
 Regina v. Cunningham: when a crime requires a mens rea of malice, the prosecution has to prove (1) actual intent to
do the particular harm done, or (2) recklessness as to whether such a harm could occur
When an offense doesn’t include awareness or intent as an element, it’s often proven through presumptions
 MPC says when a statute is silent as to the mens rea required, purpose/knowing/reckless is enough
 SC has imposed strict limits on the use of mandatory presumptions that the jury is required to draw in the absence of
evidence
o Francis v. Franklin, 1985: Presumptions are constitutional when we have confidence that over all
criminal cases in general the presumed fact will always be present when the fact used to trigger the
presumption is present; Held the presumption that a person of sound mind and discretion is presumed to
intend the natural and probable consequences of his actions unconstitutional
 Permissive inferences; where a judge informs the jury about a factual conclusions that is permitted but not
required
o Barnes v. U.S., 1973: SC upheld the use of an inference that possession of recently stolen property if not
satisfactorily explained is ordinarily a circumstance from which the jury may infer that the person in
possession knew the property had been stolen; Permissive inferences are allowed whenever the
conclusion is more likely than not to be true under the circumstances
 Staples v. U.S.: offenses that require no mens rea are disfavored, express or heavily implied Congressional intent
is required for a court to dispense with the mens rea requirements
o Liparota v. U.S.: courts should take care to avoid construing a statute to dispense with mens rea where
doing so would criminalize a broad range of apparently innocent conduct
o U.S. v. X-Citement Video: SC held that, while the most natural reading of the statute would find
‘knowingly’ only modifies ‘transports or ships,’ there is a presumption (based on Staples) in favor of a
scienter requirement to each statutory element that would criminalize otherwise innocent conduct
  You must prove that the ∆ had knowledge that the video involved a minor engaged in sexually
explicit conduct

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Rape
Elements
 Actus reus
o Sexual penetration
 Of a woman
 Spousal exceptions at common law; weakened in modern times
o Force/coercion
o Resistance/non-consent
 All courts recognize some instances where resistance isn’t required
 Defective consent
 Mens rea
o Intent to effect sexual penetration
o Knowledge that penetration occurs without consent
o Reckless disregard
 Reynolds v. State: In Alaska, since no specific mental state is required in the statute, the state
must prove that the ∆ acted recklessly regarding the victim’s lack of consent
o Mistake of fact
 Some states permit a defense one when the ∆’s error is honest and reasonable
 In most states, there is no mistake of fact defenese; so long as the mens rea applies to the act of
penetration, it’s the penetrator’s duty to make sure that the receiver consents
 Commonwealth v. Simcock: a belief that the victim consented when she did not is not a
defense, even if the belief is reasonable
MPC
 §213.1
o Rape: Male who has sex with a woman not his wife is guilty if
 Compels by force or by threat
 Substantially impaired her power to appraise or control her conduct for the purpose of preventing
resistance
 She is unconscious
 She is under 10 years old
o Gross sexual imposition
 Woman of ordinary resolution
Examples of state law: p.338-342
Force and resistance
 State v. Rusk: Lack of consent is generally established through proof of resistance or by proof that the victim didn’t
resist due to fear; Degree of fear necessary to establish a lack of consent includes, but isn’t limited to, fear of death or
serious bodily harm or a fear so extreme as to render her mind incapable of continuing to resist; The victim’s fear
must be reasonably grounded to obviate the need for proof of actual force
o Force is a prerequisite in most American jurisdictions
 State v. DiPetrillo: ∆ was charged with first degree sexual assault, requiring proof of sexual penetration by force or
coercion, and second degree sexual assault, requiring proof of sexual contact by force or coercion; Court found him
guilty on both counts; Generally force or coercion means overcoming the victim through physical force or violence
against her will and without her consent; also includes compelling the victim by threatening force or violence; also
includes the imposition of psychological pressure on a person who, under the circumstances, is vulnerable and
susceptible to such pressure
o Force as physical, coercion as psychological
 Levels of force required
o Aberrational force
 Policy: if the requirement of force is abolished, rape won’t differ from normal sex
o Any coercion
o Threat and reasonable resistance
o Absence of consent

13





 Coercion
o

State in the interest of MTS: any act of sexual penetration without the affirmative and freely given
consent of the victim constitutes sexual assault; Physical force is satisfied if the ∆ applies any
amount of force in the absence of what a reasonable person would believe to be affirmative and
freely given permission; Permission can be indicated by words or actions under the light of the
surrounding circumstances if they would be viewed by a reasonable person as giving consent
Only 14 states punish nonconsensual intercourse as a felony without force; 8 treat it as a
misdemeanor (ex: p. 368 Wis. Stat.)
MC v. Bulgaria: trend towards regarding lack of consent as the essential element of rape and
sexual abuse, even in the absence of resistance

Implicit threats
 State v. Alston: ∆ and victim had lived together for six months when the ∆ hit the victim and she
moved out; the ∆ then said he would beat her again and he had a right to have sex with her one
more time; she said she didn’t want to have sex and he did it anyway; TC convicted ∆ of rape, but
NC SC reversed saying that, while non-consent was established, force wasn’t
o Threats for future harm don’t establish coercion
o Nonphysical threats
 State v. Thompson: ∆, a high school principal, said his student wouldn’t graduate unless she had
sex with him; the court affirmed the dismissal of the charges, saying that the principle took
advantage of the girl when in a position of authority over her, and if we could rewrite the statutes
we would, but he can’t an the statutes define ‘force’ as physical compulsion or the threat of
immediate bodily harm
 Under the MPC, this would be gross sexual imposition
 Commonwealth v. Mlinarich: ∆ agreed to assume custody of the 14 year old victim from a
detention home and threatened to send her back if she didn’t have sex with him; TC convicted
him of rape by threat of forcible compulsion; superior court reversed; supreme court affirmed in a
divided opinion because force means physical force or violence, so rape requires actual physical
compulsion or violence or a threat of those sufficient to prevent resistance
o May count as coercion where consent is obtained by
 Duress
 Coercion
 Extortion
 Using a position of authority
o Duress stemming from the victim’s circumstances (eg: economic dependence) don’t constitute coercion
 Levels of resistance required
o Resist to the utmost (only Louisiana)
o Earnest resistance (only a few states)
o Reasonable resistance (half the states)
 Hull v. State: a rape victim must use all reasonable physical resistance available to her under the
circumstances
 Commonwealth v. Sherry: physical resistance isn’t necessary, any resitance is enough when it
demonstrates that the lack of consent is honest and real
o Resistance no longer required, but it is considered probative on the question of consent
 People v. Barnes, Cal. 1986: the requirement that a woman resist is grounded in the basic distrust
with which the courts traditionally viewed a woman’s testimony regarding sexual assault; the law
doesn’t expect such resistance to risk injury or death when considering protection from robbery or
kidnapping, etc.
Consent
 Levels of consent requires
o Non-consent requires express verbal no (silence = consent)
o Non-consent unless affirmative yes
 Misinterpreted consent is not a defense
o Commonwealth v. Fischer: ∆’s mistake of fact as to the victim’s consent doesn’t matter for conviction,
even if it was a reasonable belief

14

 Defective consent
o Maturity/age
 Younger person’s lesser capacity to make a mature decision
 Social goal of deterring teen pregnancy
 Risk of implicit coercion
o Mental disease or defect
o Incapacity
 MPC is restrictive, requires that
 ∆ administered the intoxicant
 Without the victim’s knowledge
 For the purpose of preventing resistance
 State v. Haddock, NC App 2008: court overturned a conviction of a ∆ under a statute prohibiting
intercourse with a person who is rendered incapable of appraising the nature of her conduct or of
resisting the act because victim’s incapacity was not caused by the ∆ himself
 Commonwealth v. Bache, MA 2008: the test for determining incapacity for the purpose of sexual
assault or rape is whether the victim was s impaired as to be incapable of consenting
 People v. Giardino, 2000: intoxication can invalidate consent even when it isn’t physically
incapacitation; the focus should be on the effect of the intoxicant on the victim’s powers of
judgment rather than on the victim’s powers of resistance
 People v. Smith, 2010: what matters is the victim’s ability to weigh the physical nature of
the act, its moral character, and probable consequences
o Intimidation/authority
 Meadows case??
o Misrepresentation/deception
 Fraud in the inducement doesn’t invalidate consent
 Fraud in factum means no legal consent


15

Homicide
Grading
 Murder
o First degree – often premeditated
o Second degree
 Manslaughter
o Voluntary
o Involuntary – recklessly, negligently, or in the commission of an unlawful act
 Vehicular homicide
Examples of states’ homicide laws: p. 420-427
MPC
 §210.1: Homicide
o Purposely, knowingly, recklessly or negligently causes death
o Murder, manslaughter, or negligent homicide
 §210.2: Murder
o Purposely or knowingly
o Recklessly under circumstances manifesting extreme indifferent to the value of human life
 Look to whether the actor’s conscious disregard of the risk under the circumstances was a gross
deviation from the standard that a law-abiding person would observe (ordinary recklessness is
just manslaughter, this has to be gross recklessness)
 Then look to whether the actor’s conscious disregard of the risk manifests an extreme
indifference to human life
o Recklessly in the commission of a violent crime
 §210.3: Manslaughter
o Recklessly
o Murder under the influence of mental or emotional disturbance
 Subjective standard
 §210.4: Negligent homicide
o Negligent
Murder
 Types
o

Intent to kill/premeditation
 Commonwealth v. Carrol: in a PA statute that said 1st degree murder was premeditated killing,
the intent necessary to constitute 1st degree murder can be found in a ∆’s words or conduct or can
be inferred from the use of a deadly weapon on a vital body part of the victim
 Commonwealth v. Drum: no time is too short to constitute premeditation
 Commonwealth v. Earnest: whether the intent to kill and the killing (premeditation and
the killing act) were within a brief time is immaterial if the killing was intentional,
willful, deliberate, and premeditated
 Young v. State: no appreciable space of time between the formation of the intent to kill
and the act of killing is required; premeditation and deliberation may be formed while the
killer is pressing the trigger
 Commonwealth v. O’Searo: clarifies Carroll by adding that the requirement of
premeditation is met whenever here is a conscious purpose to bring about death
 State v. Guthrie: premeditation (the difference between 1st and 2nd degree murder) requires some
time between the formation of the intent to kill and the kill, showing the opportunity to reflect on
your choice; otherwise there’s no difference between degrees
 Bullock v. U.S.: the deliberate killer is guilty of 1st degree murder, the impulsive killer is
not
 People v. Anderson: evidence sufficient to sustain a finding of premeditation is either

16





o
o

o

Planning
Motive
Manner of killing
o In this case, the 60 stab wounds suggested an explosion of violence rather than a
preconceived intent to kill
Intent to commit grievous bodily injury
Reckless indifference to human life
 Commonwealth v. Malone: malice sufficient to prove murder is evidence by the intentional doing
of an uncalled-for act in callous disregard for its likely harmful effects; malice is satisfied with
proof of gross recklessness where it’s reasonable to anticipate likely death resulting
 People v. Dellinger: malice is to be implied when the killing results from an intentional act, the
natural consequences of which are known to endanger the life of another – conscious disregard
for life
Felony murder
 Intent
 Regina v. Serne: when death results from the commission of a felony, the intent that
matters is the intent to commit the felony; malice sufficient for murder is proven when
the intent to commit the felony is proven
 Causation
 People v. Stamp: ∆ burglarized Honeyman’s business and held him at gunpoint;
afterwards, Honeyman died of a heart attack and doctors testified that the fright induced
by the robbery was too much of a shock of his system; ∆’s conviction of first-degree
murder was upheld; felony murder doctrine isn’t limited to foreseeable deaths, a felon is
strictly liable for all killings during the course of a felony
o If the death was a direct causal result of the robbery and the predisposing
physical condition isn’t the only substantial factor bringing about his death, it’s
murder
  This is the generally accepted view of the American courts: strict liability for killings
resulting from a felony
o People v. Washington, 1965: purpose of the felony-murder rule is to deter felons
from killing negligently or accidentally by holding them strictly liable
 Eliminates the mens rea requirement of murder, but not the actus reus and causation requirements
 Must show that the ∆’s conduct caused the death (common formulation:)
o “But for” the felony, the death wouldn’t have occurred AND
o The result must have been the natural and probably consequence of the ∆’s
actions or it must have been foreseeable
 Result must be fairly attributable to the ∆’s actions, rather than mere
coincidence
 King v. Commonwealth, VA App. 1988: King was a copilot transporting bud when the
plane crashed and everyone died except him; King was convicted of felony murder, but
the appellate court reversed, holding that the drug distribution crime wasn’t the proximate
cause of the death; The “but for” requirement was met, but the crash wasn’t a foreseeable
result of the felony because it wasn’t made more likely by the fact that the cargo was
contraband
  The mens rea of the lesser offense may substitute for the mens rea of the greater
offense
 Inherent danger
 Per se
o People v. Phillips: the terms of the statute, not the crime as committed, determine
whether a felony is inherently dangerous so as to warrant a conscious disregard
for human life sufficient to constitute felony murder; only felonies which are
inherently dangerous to human life can support the application of the felony
murder rule

17

People v. Henderson: SC CA reversed a 2nd degree felony murder conviction
based on the felony of false imprisonment effected by violence, menace, fraud or
deceit because those elements don’t necessarily involve danger to life
o People v. Howard: ∆ was evading arrest in a high speed chase when he hit
another car and killed the driver; Court overturned a conviction of felony murder
based on the predicate offense of willful or wanton disregard for the safety of
others in a vehicle because California law said that the willful or wanton
disregard for others could be proven by the commission of three or more
violations of the traffic code, so someone could have a suspended license and
turn right on red illegally and then they fall under it
o People v. Burroughs, Cal. 1984: Decedent had leukemia, and ∆ told him to drink
some lemonade mixture and get massages; decedent died of a hemorrhage caused
by one the ∆’s massages; ∆ was convicted of felony murder with the predicate
offense being felonious unlicensed practice of medicine
 As committed
o Hines v. State: the ∆’s violation of the prohibition of owning a firearm due to his
convict status created a foreseeable risk of death, so as to make violation of the
predicate law inherently dangerous
o People v. Stewart, RI 1995: the proper procedure for determining whether a
crime is dangerous as committed is to present the facts and circumstances to a
trier of fact
People v. Aaron, Mich. 1980: Michigan SC abolished the felony murder rule because they didn’t
believe that the intent to commit a felony could replace the intent to kill or do bodily harm
 State v. Ortega, NM 1991: used Aaron as influence to read into the NM law the
requirement that the state prove intent to kill or conscious disregard for human life to
obtain a felony murder conviction
 Commonwealth v. Matchett, Mass. 1982: court held that the second-degree felony murder
rule for nonenumerated felonies requires a showing that the ∆ consciously disregarded
the risk to human life
Limitations
 Inherently dangerous felony limitation
o People v. Phillips: inherently dangerous per se
o Hines v. State: inherently dangerous as committed
 Merger Doctrine: felony must have an independent felonious purpose other than murder
o People v. Burton: burglary is excluded from the operation of the felony murder
rule in cases where the intended felony was assault with a deadly weapon
o Two tests to determine merger
 Whether the felony is included in fact in the homicide
 Whether the felony is independent (in purpose) of the homicide
o People v. Farley: SC of CA held that burglary never merges with homicide
 General rule
o People v. Chun: when the underlying felony is assaultive in nature, the felony
merger with the homicide and can’t be the basis of a felony murder conviction; a
felony is assaultive if it involves a threat of immediate violent injury (court here
looked to the element of the crime, not the facts of the case)
 Restrictions on liability for killings not in furtherance of the felonious objective
o





 Elements
o
o
o

Actus reus
Corpus delecti: prosecution must prove a death occurred
 Usually proven with a corpse
 Can be proven by circumstanctial evidence
Mens rea
 Intent to kill
 Intent to commit bodily harm
 Reckless indifference to the value of human life

18

o

 Intent to commit a non-homicide felony
Causation
 Cause in fact and proximate cause

Voluntary manslaughter
 Elements
o Provocation sufficient to cause a reasonable person to lose control
o ∆ was in that heat of passion when he acted
o No reasonable time to cool off
o ∆ didn’t actually cool off
Involuntary/reckless manslaughter
 Commonwealth v. Welansky: a manslaughter conviction may be based on omissions as well as affirmative acts; the
“wanton and reckless” standard for involuntary manslaughter is commonly defined as a conscious disregard for a
known risk; where one has a duty to act, recklessness may be proven by the failure to perform the duty
 Dickerson v. State: decedent was drunk and stopped in the middle of the road and turned his lights off, ∆ hit and killed
him; court held contributory negligence was not a defense to manslaughter
 People v. Hall: reckless means a conscious disregard for a substantial and unjustifiable risk that death could result;
substantial depends on the circumstances; requires a gross deviation from the standard of care of a reasonable person;
a risk of death can be substantial even if it is less than 50% probable depending on the circumstances; here, the ∆ was
a trained and experienced skier and was skiing to fast and he should have known that it would create a substantial,
unjustifiable risk of death
 Misdemeanor manslaughter rule (like the mini-version of the felony murder rule)
o A misdemeanor resulting in death can provide a basis for an involuntary manslaughter conviction without
proof of recklessness or negligence
o Limitations
 Proximate cause
 Commonwealth v. Williams, PA 1938: ∆ was convicted of manslaughter by vehicle after
failing to renew his driver’s license; court reversed, holding that the expiration of the
driver’s license had no causal connection to the accident, which resulted from the
carelessness of the other driver
 Regulatory offenses
 Restrict the unlawful act doctrine to malum in se (as opposed to malum prohibitum)
 Dangerousness
 Limit the doctrine to misdemeanors that rise to the level of criminal negligence
o State v. Green, WV 2007
 Limit the doctrine to violations that evince a marked disregard for the safety of others
o State v. Lingman, Utah 1939
Mitigating elements/defenses
 Provocation as a mitigating factor/defense
o Common law
 Girouard v. State: provocation must be calculated to inflame the passion of a reasonable man;
words can only constitute adequate provocation if they are accompanied by conduct indicating a
present intention to cause bodily harm; provocation to mitigate a murder charge should be limited
to circumstances of
 Extreme assault or battery
 Mutual combat
 ∆’s illegal arrest
 Injury or serious abuse of a close relative
 Sudden discovery of a spouse’s adultery
 U.S. v. Bordeaux: victim told ∆ he had raped his mother 20 years earlier, so ∆ roughed him up
and then went back to kill him; court said that the revelation of the rape had occurred much

19

earlier in the day than the fatal act, so there was no way the jury could find heat of passion
sufficient to mitigate a murder charge
 People v. Berry: court held that the jury should find the issue of provocation and cooling time,
and that the passage of time in this case served to aggravate the victim so he was entitled to
manslaughter
o Modern: A jury decides whether the provocation was adequate
 Maher v. People: where homicide was intentional, but committing with hot blood produced by
adequate provocation before a reasonable amount of time has passed, it can be mitigated form
murder to manslaughter
 State v. Simonovich: ∆ killed his wife after she told him she had cheated; court held ∆ wasn’t
entitled to manslaughter because he didn’t catch his wife in the act
 Dennis v. State: ∆ watched his wife raise her dress in a sexual embrace with a man and shot the
other man; court held is proper to instruct the jury that the ∆ could only use a provocation defense
if he had seen sexual intercourse, not other sexual contact
 State v. Turner: enraged woman shot an unfaithful man; court held that manslaughter instructions
weren’t proper because, even though the couple had lived together for a long time, they weren’t
legally married
o Modern: no rekindling of the heat of passion after a cooling period
 State v. Gounagias: ∆ killed a man who bragged about sodomizing him and two weeks later he
killed him; ∆ argued that the cumulative effects of the rumors and taunts led him to a heat of
passion; Court held that the legally sufficient provocation had occurred two weeks earlier and the
interval was adequate cooling time
 Commonwealth v. LeClair: a man has suspected his wife of infidelity for a few weeks and she
finally admitted to it, upon which he strangled her to death; court held that his prior suspicions
provided cooling time
o People v. Spurlin, Cal. 1984: man argued with his wife about cheating and then killed her and their son;
court held that provocation defense was unavailable on the charge of murdering the non-provoking victim
 Extreme emotional disturbance: broader than the heat of passion doctrine
o People v. Casassa: extreme emotional disturbance is a defense to 2nd degree murder where there is a
reaonsblae explanation; EED has two principle components
 ∆ must have acted under the influence of EED (subjective standard)
 There must have been a reasonable explanation of excuse (objective standard; reasonableness
determined from the perspective of a person in the ∆’s situation under the circumstances as he
believed them to be)
o State v. Elliot, 1979: ∆ had a crazy fear of his brother and he killed him; court held that EED instructions
were required because the defense doesn’t require a triggering event
 Old doctrine of hot blood required a triggering event and was nullified with a cooling off period
 New doctrine of EED requires only significant mental trauma that causes the ∆ to brood for some
time and then break out in violence without provocation
Death penalty
 Biggest things to consider when looking at a death penalty statutes
o Can’t have arbitrary enforcement or assignment; can’t have too much unguided discretion in sentencing
o Need to leave room for individualization depending on the circumstances
 Policy
o Deterrence
 Whether the death penalty deters murder more than life imprisonment
 Theoretical: using deterrence principles to predict the effect of capital punishment
 Pros
o As long as most potential murderers view execution as worse than life in prison,
it should decrease the homicide rate
o Infrequent application of the death penalty should have the effect of deterrence
since people overestimate the likelihood of salient harms
 Cons

20

o



Certainty and speed of imposing a sanction affects deterrence generation, and the
death penalty takes forever
o Mental impairments that many capital defendants suffer and the impulsive nature
of the offence suggests that deterrence won’t work
o State executions may have a brutalization effect, encouraging violence to deal
with problems
 Empirical: applying data in an attempt to measure the deterrent effect
 Most modern economists find significant deterrent effects of capital punishment
 Three problems with that claim
o Aggregation: overwhelming influence of one or two outlier states or outlier years
o New deterrence studies don’t account for hard to quantify social and institutional
factors, such as the performance of the criminal justice system overall and the
deterrence effects if life without parole sentences
 The death penalty can only have a useful effect on people for whom the
prospect of life without parole wouldn’t deter them, but the death penalty
would
 New deterrence studies lack robustness
 Burden of proof: if deterrence is unclear, is that an argument for or against the death penalty?
 Some argue that not having capital punishments gives certain rights to the criminal and
denies certain rights to the victim
o Retribution
 Punishment is morally required, regardless of deterrence, because society must condemn crimes
(Kant)
 H. Morris: punishment is required even if it won’t benefit society because it restores equality
 Also, it’s very expressive – revulsion towards criminals that violate the rights of other individuals
and weaken the bonds of society
 L. Lojman: holds criminals responsible
 Against capital punishment – punishment must be deserved
 Social deprivations, like poverty and discrimination, mitigate murderers’ responsibility
and preclude severe penalties
o Error
 Risk of executing an innocent person
 It’s not possible to correct a death penalty, but is it possible to correct a length prison term?
 E. van den Haag: death penalty is justified if the benefits outweigh the statistical certainty of
unintentionally killing innocent people
o Bias
 Racial bias
Constitutional limitations
o McGautha v. California: leaving the decision of sentencing and the death penalty to the jury is not
unconstitutional
o Furman v. Georgia: per curiam opinion with separate opinions by each justice saying that capital
punishment, as then administered, violated the 8th Amendment’s prohibition of cruel and unusual
punishment
 Concurring
 Brennan and Marshall concluded that all capital punishment was unconstitutional
 Douglas objected to capital punishment because of the potential for discriminatory
administration
 White said that the infrequency of imposition rendered the death penalty incapable of
promoting its purposes
 Stewart discussed the infrequency of imposition as well as the randomness of imposition
– if there is no discernable basis for the selection of those to died, it is constitutionally
impermissible
 Dissenting

21





Chief Justice, Blackmun, Powell, and Rehnquist said that there is a long tradition of
acceptance of capital punishment and the majority’s opinions impermissibly intruded into
the legislative process
o Gregg v. Georgia: to determine whether capital punishment violated the 8th amendment, it must not
involve the unnecessary and wanton infliction of pain and must not be grossly out of proportion to the
severity of the crime
o What the state statutes governing capital punishment must minimally consider
 Profitt v. Florida: court upheld Florida’s new capital scheme which required the weighing of
aggravating and mitigating factors prior to the imposition of the death penalty, but places the
ultimate sentencing authority on the judge rather than the jury
 Jurek v. Texas: court upheld the Texas system which limited capital punishment to a subset of
five categories of murders and required the jury to answer three yes or no question during
sentencing
 The five specific circumstances were akin to aggravating circumstances and the courts
included a question regarding the potential for future danger
  Guided discretion
 Woodson v. NC: court struck down a statute that mandated the automatic imposition of a capital
sentence upon conviction of certain categories of murders; Emphasized that a fundamental
respect for individual dignity underlying the 8th Amendment requires particularized consideration
of the relevant aspects of the character and record of each defendant
 Sumner v. Shuman, 1987: court struck down a narrow mandatory statute that required a death
sentence only for murder committed by a ∆ serving a life sentence already, because prior
conviction of an offense doesn’t provide sufficient information about the seriousness of the
present killing or mitigating circumstances
 Lockett v. Ohio, 1978: court struck down the Ohio statute because the sentencer can’t be
precluded from consideration, as a mitigating factor, any aspect of the ∆’s character or record and
any of the circumstances of the offense that the ∆ proffers
 Eddings v. OK, 1982: court held that evidence of the ∆’s background can’t be ruled irrelevant and
must be considered
 Skipper v. SC, 1986: court held it impermissible to exclude evidence regarding the ∆’s good
behavior in jail while awaiting trial
 Hitchcock v. Dugger, 1987: court held that the Florida statute was deficient because it precluded
the consideration of mitigating factors not specified in the statute
 Penry v. Lynaugh, 1989: court held that the Texas statute violated the requirement of
individualize sentencing because it precluded adequate consideration of mitigating evidence
concerning the ∆’s mental retardation and childhood abuse
McCleskey v. Kemp: to prove discrimination sufficient to support a claim that the death penalty was
unconstitutionally given, a ∆ has to prove discrimination specific to his own case and discriminatory purpose

22

Attempt
Exs. of statutes: p. 607
MPC


§5.01: guilty of attempt if acting with the culpability otherwise required for the substantive crime, he engages in
conduct which would constitute a crime if the circumstances were as he believes them to be, or he does anything
which constitutes a substantial step in a court of conduct planning to culminate in the commission of a crime
o Substantial step if it is strongly corroborative of criminal purpose
o Renunciation – abandoned criminal efforts under circumstances manifesting a complete and voluntary
renunciation of criminal purpose
 Not renunciation if it is motivated by an increase in the probability of detection or the difficulty
of accomplishing the crime

Requirements
 Mens rea
o Need to show
 Intent to commit substantive crime OR
 Intent as to conduct, and knowledge or practical certainty that result will occur
o Requires a specific intent for attempt, even when the substantive offense requires less
 Linguistic: To attempt something is to try and accomplish it, and you can’t try if you don’t intent
to succeed
 Moral: Attempting to commit a criminal harm is more morally wrong than a reckless or negligent
crime
 Utilitarian: Showing intent is important because we have to show that it was likely to be followed
by hurtful consequences
o State v. Earp: the required intent in the crime attempted murder is the specific intent to murder or kill
under circumstances that wouldn’t legally justify/excuse/mitigate it
o Smallwood v. State: an attempt requires a purpose (specific intent) to produce the proscribed result, even
when recklessness or some lesser mens rea would suffice for conviction of the completed offense; the ∆’s
conviction for attempted murder should be reversed because there is no evidence from which to infer an
intent to kill; to show an intent to kill based on the ∆’s exposure of another to risk of death, it must be
shown that the death would have been a natural and probable of the ∆’s conduct
 Thacker v. Commonwealth, Va. 1922: a woman refused to let a man into her camping tent, so he
shot at the tent and missed her; wasn’t convicted of attempted murder because there wasn’t
sufficient proof that he intended to kill her
 People v. Thomas, Colo. 1986: ∆ fired three shots at a man he thought was a fleeing rapist and
argued that two of the shots were warning shots and one was accidental; court found him guilty of
attempted reckless manslaughter under a statute that says it’s criminal attempt if you act with
culpability required for the commission in an offense and take an action that constitutes a
substantial step towards commission of the crime; CO SC upheld the conviction, saying that
attempt convictions should be upheld in cases where conduct was likely to produce harmful
consequences; standard of potential for future harm is met with intentional conduct and also when
the ∆ knows that the prohibited result is certain to occur or when ∆ recklessly disregards that
substantial risk
 Most jurisdictions reject this view
 Act
o Proximity approach: how close the ∆ came to completing the offense
 Common law: physical proximity text
 People v. Rizzo: ∆’s conviction for attempted robbery was reversed because intent to rob isn’t
enough, they have to be in dangerous proximity to success, or very near to the accomplishment of
the intended crime; to prepare for a robbery isn’t a crime, but to attempt one is
 Commonwealth v. Bell, Mass. 2009: an undercover police officer posed as a prostitute and “sold”
her 4-year old daughter for sex to a man who was then arrested for soliciting prostitution and

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o

o

attempted rape; MA SC upheld the solicitation conviction but reversed the attempt conviction
because he hadn’t seen the child and didn’t know where she was and he hadn’t paid for it yet
 Relied on “proximity” from Rizzo – look to the actions yet to be taken or the distance
between the ∆s actions an the goal of the crime, and it must be a short distance to go to
constitute attempt
Equivocality approach: whether ∆’s conduct unequivocally manifested criminal intent
 The King v. Barker: an act isn’t a criminal attempt unless it is sufficient evidence of criminal
intent; res ipsa loquitur; An act that is innocent on its face doesn’t constitute an attempt
 State v. Davis: an overt act evidencing an intention to commit a crime is sufficient to constitute an
attempted crime, so long as the required mens rea is also proven
Substantial step approach
 MPC says substantial step + strongly corroborative of intent
 U.S. v. Jackson: used the two tier test from Mandujano to prove attempt; to constitute a
substantial step, conduct has to be strongly corroborative or criminal purpose
 U.S. v. Mandujano: to prove attempt, you must show that
o The ∆ was acting with the kind of culpability required for the commission of the
crime with which he is charged with attempting
o The ∆ engaged in conduct which constitutes a substantial step that is strongly
corroborative of criminal intent
 Distinguishes acts of preparation from an attempt
o Shifts the emphasis from what remains to be done (proximity tests) to what the
actor has already done
o No finding is required as to whether the actor would probably have desisted
before completion
o Proving a substantial step is less of a hurdle for the prosecution than res ipsa
loquitur, which requires that the conduct itself must manifest a criminal purpose
 U.S. v. Harper, 9th Cir. 1994: ∆s were found in a car parked near a bank branch after setting off
the call for technicians to repair the ATM with guns and plastic gloves; court affirmed conspiracy
conviction but reversed attempt, because the bill trap that caused the technician to come was
equivocal on its own and ∆s hadn’t taken such a substantial step towards the crime that, unless
frustrated, would complete the crime
 As opposed to U.S. v. Moore, 9th Cir. 1990, where the ∆ was apprehended while walking
towards the bank wearing a ski mask and carrying gloves and a loaded gun; those actions
were a commitment towards the robbery so that the robbery would be in progress the
moment he entered the bank
 U.S. v. Joyce, 8th Cir. 1982: Joyce was lured to a hotel room to buy a ton of coke; when the
undercover officers handed him the brick of cocaine, ∆ said he wouldn’t pay until he sampled it
but the officers said they wanted to see the money first; ∆ left the room after negotiations broke
down without buying the coke or even showing the money and was arrested and found with all
the money on him; the court reversed the attempt conviction under the MPC approach because
∆’s intent to buy coke was abandoned before any necessary and substantial step to buy the drugs;
∆ never carried through with providing the money to buy the coke, and he didn’t even open the
package; preliminary discussion of a crime that breaks down isn’t attempt
 People v. Acosta, NY 1993: a person who orders drugs from a supplier and lets the supplier in her
home and examines the quality of the drugs has completed a substantial step and is very near to
buying the drugs and committing the crime; the only thing left is handing over money and that’s
entirely in their control

Renunciation
 Judicial reluctance to move the threshold of criminality to an earlier point in time to preserve a locus penitentiae
for the ∆, an opportunity to change their mind
 Abandonment, renunciation is a complete defense in a few states
o Abandonment must occur under circumstances manifesting voluntary and complete renunciation of the
criminal purpose
 Policy

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


o Want to give incentives for criminals to desist if unsure of firmness of intent
o Give police room to intervene before criminal consequences manifest
People v. Johnston: ∆ entered a gas station and pulled a gun and demanded money, but then said he was kidding;
court denied renunciation
People v. McNeal: ∆ forced a girl at knife point to his house to rape her but she pleaded with him until he let her
go; court affirmed a conviction for attempted sexual assault and held that the victim’s resistance caused the ∆’s
renunciation so it wasn’t entirely voluntary as to constitute a defense
o As opposed to Ross v. State: similar facts, court found abandonment and reversed a conviction of rape
saying no one prevented the ∆ from completing his crime except by his own free will

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Group criminality
Common law
 Distinct categories of circumstances that make a person a participant in criminal conduct
o Principal
 First degree – the actor or absolute perpetrator of the crime
 Second degree – present, aiding, abetting the crime
o Accessory – not the chief actor and isn’t present at the performance, but is concerned with the crime
 Before the fact – absent at the crime but planned, counseled, or commanded the crime
 If he were present, he would be principal
 After the fact – a person knows a felony has been committed and receives, comforts, or assists the
felon
 Complicity isn’t a separate offense but a way of committing a substantive offense
Modern law
 MPC and more recent statutes mostly make accomplices accountable for the principal’s conduct
o Accomplices - solicit a person to commit a crime or aid that person is planning or committing a crime
o Accessory after the fact is a separate offense with its own penalty
 Accomplices and principles are guilty of the same crime
o Subject to a range of penalties by degree of culpability
 Sentencing discretion or reductions in punishment
 Not possible where there is a mandatory minimum sentence
 Rudder v. State, 2008, says that the sentence for a conspiracy charge can’t be longer than the maximum
punishment for the crime that is conspired to
o Federal statute similarly says that when the object crime is a misdemeanor, the punishment for conspiracy
can’t exceed the punishment for the misdemeanor
o Some jurisdictions still use the traditional approach and make is a felony to conspire to commit a
misdemeanor
 Most jurisdictions now fix the punishment for conspiracy at some term less than the sentence for the object crime
MPC


§5.03: guilty of conspiracy if, with the purpose of promoting or facilitating a crime, he agrees to engage in
conduct which constitutes a crime or solicitation of a crime, or he agrees to aid another person in the planning ot
commission or solicitation of a crime
o Overt act requirement
o Renunciation as an affirmative defense

Conspiracy and complicity require:
 Actus reus: agreement
o State v. Gladstone: ∆’s conviction for aiding and abetting the sale of weed was reversed because there
was no evidence of a nexus between the him and the person he allegeldly aided; without prior agreement,
arrangement or understanding, a person can’t be guilty of aiding and abetting
 Nye & Nissen v. U.S.: There is no aiding and abetting unless you associate yourself in the venture,
or participate in it as something you wish to succeed
 U.S. v. Peoni: in order to aid and abet another to commit a crime, it is necessary that a ∆ associate
himself with the venture, participate in it, and that he seek to make it succeed
o U.S. v. James: to establish the common plan element of conspiracy, you don’t have to prove an express
agreement, the proof may be circumstantial; a ∆ doesn’t need to know all details of the crime, it’s enough
if he knows the essential nature of it
  The standard in most states
 Interstate Circuit Inc v. U.S.: the finding of a conspiracy may be inferred from the parties’
conduct, without direct evidence of an agreement
 Mens rea

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Wilcox v. Jeffery: if the ∆ was present at the commission of a crime, the required mens rea to prove aiding
and abetting a crime is the intent to be present or facilitate
o U.S. v. Fountain: ∆ was convicted of aiding and abetting another inmate in murdering a guard; Judge
Posner held that to convict the ∆ it wasn’t necessary to prove that it was his purpose that the other person
should kill the guard, but it’s enough if he knew that when he helped the other inmate get a knife that the
other inmate would use that knife to attack the guards
 People v. Lauria: Knowledge is enough – purpose is required to convict of lesser offenses, but
knowledge is enough to convict for major crimes
o NY State law (p. 668): makes aid without a true purpose a separate crime from complicity (facilitation): a
person is guilty of facilitation in the second degree when he believes it probable that he is aiding in the
commission of a crime and engages in conduct which provides a person with the means or opportunity to
commit a crime
Objective
o Overt act requirement
 Pinkerton v. U.S.: ∆’s conviction for conspiracy is affirmed; if you can show an overt act by one
conspirator, it applies to the other conspirator
 Hyde v. U.S.: having joined in an unlawful scheme, until he does some act to disavow or
defeat the purpose, he is guilty of the conspired to crime; it’s enough if he was
consciously conspiring
 State v. Bridges: a co-conspirator may be liable for the commission of substantive criminal acts
that are not within the scope of the conspiracy if they are reasonably foreseeable as the necessary
or natural consequences of the conspiracy
o



Complicity by omission
 General approach: MPC §2.06(3)(a)(iii) says that a person can be an accomplice if he has a legal duty to prevent
the offense and fails to do so with the purpose of promoting or facilitating the crime
 Omission as complicity in the absence of preconcert
o People v. Stanciel: a woman’s boyfriend beat her daughter to death and she didn’t stop him; woman was
found guilty as an accomplice for failing to protect her child from her boyfriend
Responsibility for others’ actions
 People v. Luparello: a ∆ may be found guilty not only of the offense he intended to facilitate r encourage, but also
of any reasonably foreseeable offense committed by the person he aids and abets
 Pinkerton v. U.S.: as long as a conspiracy continues, the overt act of one partner may be the act of all without any
new agreement; liability for co-conspirator’s actions not related to the underlying agreed to crime if action was
o In a conspiracy
o In furtherance of the criminal purpose
o Reasonably foreseeable
 Excuses:
o Old rule: if the principal in a conspiracy commits no crime because of an excuse, then the secondary
conspirators are only guilty of whatever crime the principal is held for, which is nothing
o Modern rule: the defense that reduces a crime is only available to the perpetrator and not his accomplices

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Responsibility
Insanity
 Insanity defense entitles a ∆ to being committed to a mental institution, you don’t just get out free
 Tests
o M’Naghten test:
 ∆ suffered a mental disease causing a defect in his reasoning
 This resulted in the ∆ not understanding the nature and quality of his act or not knowing that it
was wrong
o Irresistable impulse test:
 Secondary standard, doesn’t replace the M’Naghten test necessarily
 Most states use both
 ∆ was unable o control his conduct
o MPC §4.01
 Mental disease or defect causes the ∆ to lack the ability to appreciate the criminality of his
conduct of to conform his conduct to the law
 Either of those
o Federal standard
 As a result of severe mental disease, ∆ is unable to appreciate the nature and quality or the
wrongfulness of his acts
Justifications and excuses
 Duress
o State v. Toscano: duress is a defense to crimes other than murder if the ∆ engaged in conduct because he
was coerced to do so by the use or threat to use unlawful force against his person or another, which a
person of reasonable firmness in his siatuation would have been unable to reisst
 Necessity
 Self-defense and others
o MPC §2.04
o U.S. v. Peterson: self-defense as a justification/defense for murder is a necessity defense and it only arises
when the necessity begins and ends with the necessity as well; it is not required that the force be actually
necessary, so long as the defender reasonably believed the force to be necessary; conditions required for
self-defense:
 An actual or apparent threat of the use of deadly force
 The threat must be unlawful and immediate
 The defender must believe that he is in imminent peril of death r serious bodily harm and that his
response was necessary to prevent that harm
 The beliefs must be honest and objectively reasonable in light of the circumstances
o People v. Goetz: a person may use physical force on another when and to the extent that he reasonable
believes it to be necessary to defend a person from what he reasonably believed to be the use or imminent
use of physical force
 Limitation with respect to the use of deadly physical force: a person may not use deadly physical
force on another unless he reasonably believes that the other person is using or about to use
deadly physical force of he reasonable believes that the other person is committing or attempting
to commit a crime of force (forcible robbery, rape, etc.)
o Battered woman syndrome
 State v. Kelly: the battered woman’s syndrome is appropriate for expert testimony
 State v. Norman: absent imminent peril, a history of spousal abuse won’t constitute a defense in a
homicide prosecution
o U.S. v. Peterson: where the necessity to kill was created by the ∆, the ∆ can’t support a claim of selfdefense; initial aggressor doctrine
 Defense of property
o Generally, only non-deadly force
 Can use deadly force if offense creates reasonable fear of bodily harm
 Law enforcement

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




Consent
Entrapment
Mistake of fact
Mistake of law is no excuse (for the purposes of this class)

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