CRIM LAW OUTLINE *INTRODUCTION*

RELEVANT SECTIONS OF THE MPC 1.07: Prosecution of Multiple Offenses; Limitation on Convictions 1.12: Proof Beyond a Reasonable Doubt; Affirmative Defenses 2.02: General Requirements of Culpability 2.03: Causal Relationship Between Conduct and Result 2.06: Liability for Conduct of Another; Complicity 2.08: Intoxication 2.09: Duress 2.13: Entrapment 3.02: Justification Generally: Choice of Evils 3.04: Use of Force in Self-Protection 3.05: Use of Force in Protection of Others 3.06: Use of Force for the Protection of Property 3.07: Use of Force in Law Enforcement 3.08: Use of Force by Persons with Special Responsibilities to others 4.02: Evidence of a Mental Disease or Defect Admissible When Relevant to Element of the Offense 4.03: Mental Disease or Defect Excluding responsibility is Aff. Defense 4.10: Immaturity Excluding Criminal Conviction 5.01: Criminal Attempt 5.02: Criminal Solicitation 5.03: Criminal Conspiracy 5.02(5) Overt Act

Limits on Criminal Law Ex post facto: Cant charge for something they did before it was against the law Rule of Strict Construction: (Rule of Lenity) Interpretation of law must go in s favor Void for Vagueness Doctrine: CL any statute too vague is void for peoples sake Misc. Const. Limits: Crime must bear injury; Police cant be arbitrary in authority Classification of Criminal Law Malum in Se: Crimes of moral turpitude; Wrong in themselves Theft, homicide Misdemeanor < 1 yr; Felony > 1 yr/ death Malum Prohibita: Not inherently evil; Legislation regulates Speeding, taxes Infraction (typically no jail, a fine) BASIC ELEMENTS OF ALL CRIMES Crimes require: (1) guilty act (2) guilty mind (3) necessary attendant circumstances (for common law burglary -- takes place at night, dwelling house -- is broken and entered into) (4) causation (5) absence of defenses Result in: (1) punishment (2) moral condemnation Utilitarianism Max. pleasure, mini. pain; Focus on society Least pain Punishment OR Future Crimes? Looks forward, what will help & society? Gen. Deterrence: Send message to others Spec. Deterrence: wont do it again b/c (teaching lesson) 1) Incapacitation (physically deterring) or 2) Intimidation Rehabilitation/Reform: 1) Psych care, 2) Care for drug addiction, 3) Training/school (teaching to prevent future crime) Retributivism Securing a balance in soc; gets his just desserts Looks back, a crime was committed; violated norms, so can be justly punished; Focus on ind. Moral: Right to hate criminals, punish them

Equalizing: An eye for an eye Communicative: Symbolizes to criminal and victim that the crime was wrong Levels of Burdens Beyond a Reasonable Doubt BARD Prosecutor has a really high burden that is difficult to meet MPC 1.12 Preponderance of the Evidence POTE Clear & Convincing C&C 3 BASIC BURDENS: Burden of Pleading: has this Burden of Production: must offer evidence in support of the defense If can raise evidence supporting instruction of the defense, judge must instruct that way Burden of Persuasion: must show jury he has met std of proof required - = POTE; State = BARD In a tie, State wins (exception is heat of passion in murder case) Common Law (1) must prove (2) By POTE (3) Subjective + Obj. Belief MPC (1) must prove (2) By POTE: (3) Subjective Belief only - - Added step - (1) State must prove (2) BARD: Belief was held Recklessly/Negligently *Prosecutors success results in establishing an imperfect defense = Manslaughter conviction Justifications for Punishment Restraint: Jailed for safety of the public Deterrence: Make example to send message Rehabilitation: Sick and need help to re-enter society as a contributing member Retribution: People want sense that justice has been done; build legitimacy of system Death: Highest form of punishment Methods of Punishment: Monetary (fines, restitution), Probation, Incarceration, Death Serving Sentences: Concurrent: At same time Consecutive: Back to Back The Act: ACTUS REUS w/out an act you do not have a crime what is an act? -Implicit element in MPCconsiderations: (1) Thinking No for wishing & planning; (2) Presence or Appearance; (3) Unconsciousness; (4) Possession; (5) Temporary Impairment (Mult. pers.); (6) Status (Intox, Addiction, Homelessness) MPC 2.01, non-voluntary acts include things like: Reflex or convulsion; Movement during unconsciousness or sleep; Conduct during hypnosis; Bodily conduct not product of actors determination OMISSIONS MPC 2.01(3) Kitty Genovese -If you have a duty to act, you may be liable if you dont Capacity matters Liability Elements: Finding Actus Reus in Omissions (only if there is a LEGAL duty to act- not a moral duty) 1. Legal Duty: Statutory (few), K (ex.lifeguard), Relationship (spouses, parent-child), Vol. Assump of Care (if u start helping u may be obligated to cont), Situation (you created peril)

2. Possibility of Performing the Act: father who cant swimnot dive into deep water to rescue a drowning child but could do other things to help like call the lifeguard etc 3. Causation: The omission must be proved to be the cause of the death, for example
(Legal) Duties Giving Rise to Criminal Omissions Liability (1) Duty Based on Relationship: Parents must aid small children; ship captains must aid their crews; law expanding- might imagine a duty of a mountain climber to rescue his climbing partner if he falls in a crevasse. Key is to look for a special relationship; (2) Duty based on Statute: Failure to stop after hit and run; (3) Duty based on Contract: Lifeguard employed to watch over swimmers at the beach; (4) Duty based on Voluntary Assumption of Care: If one starts to save a drowning swimmer, one has to carry through; (5) Duty Based on Creation of the Peril: recall case where rapist whose acts cause his victim to drown in the creek; (6) Duty Based on Respondeat Superior: Employer has a duty to curb dangerous activities of employee when employee is in the course of work; Car-owner may be criminally liable to third persons injured or killed as a result of his failure to control his speeding chauffeur; (7) Duty of Landowner: landowner may have a duty to act affirmatively to provide for the safety of those whom he invites onto his property; ex.)night club ownerdeaths of his patrons killed as a result of failure to provide proper fire escapes.

CL:INTENT Specific Intent Something added to charge: Assault w/ intent to commit rape; Requires greater degree of recklessness (hard to prove); Intoxication IS a defense General Intent Requires lesser degree of recklessness; Easier to prove (Atkins); NO intoxication defense CL: GENERAL v. SPECIFIC INTENT CRIMES GENERAL INTENT SPECIFIC INTENT Example: Battery Example: Burglary **Single Mental Layer** **Double Mental Layer** - intent to inflict injury on Breaking and entering the another dwelling house of another at night (intent to break) with the intent to commit a felony therein Intoxication and Mistake of Intoxication and Mistake of Fact ARE NOT DEFNENSES Fact MAY BE DEFENSES - often the words with intent to are used to indicate a specific intent crime (look for these in statute) ex.) assault is a general intent crime, but assault with intent to rape, is a specific intent crime; arson is a general intent crime, but arson with intent to commit insurance fraud is a specific intent crime INTENT: MENS REA MPC 2.02 Mental state Hard to prove Done circumstantially Transferred intent (meant to shoot B, but hit C instead) Crime (arson, murder) cant be MENS REA AND CULPABILITY think about choice of Elements of Culpability MPC 2.02 One of these must be found for each crime Motive not legally required; can help though (this MPC section is VERY IMPORTANT!)

PURPOSELY: CONSCIOUS/RESULT - 1) Conscious object (sugar for diabetic); 2) is aware of att. circ. (knows victim is diabetic & gives him sugar anyway) Satisfied if purpose is conditional 2.02(6) (threat unless victim complies) KNOWINGLY: 1) is AWARE att. circ. exist (spike punch, knowing guest is allergic); 2) PRACTICALLY CERTAIN conduct will cause result (allergic guest will be injured Satisfied by high probability Willfully if person commits elements of crime knowingly (unless statute requires more) - - Line separating seriousness of crimes - RECKLESSLY: Minimum default CONSCIOUS DISREGARD of subst. & unjust. risk Subst. & Unjust. risk: Must be of such a nature and degree that, considering the nature and purpose of the actors conduct & the circumstances known to him, the disregard of this risk involves a gross deviation from the standard of conduct Standard of conduct: How a law-abiding person would act if in the actors situation NEGLIGENTLY: FAILURE TO PERCEIVE subs. & unjust. risk that element exists or will result from his conduct Subst. & Unjust. risk: Must be of such a nature & degree that, considering the nature and purpose of the actors conduct and the circumstances known to him, the actors failure to perceive this involves a gross deviation from the standard of conduct; Standard of conduct: How a reasonable person would act if in the actors situation -Similar to tort negligence OVERALL INTOXICATION MENS REA ANALYSIS 1. Was the involuntarily or pathologically intoxicated? If yes, then it's a complete defense If no, conduct analysis for voluntary intoxication 2. Does the jurisdiction even allow a voluntary intox.defense? If no, then we are done with the analysis If yes, ask the following questions: 3. Are we dealing w/ a double mental layer (specf int) crime? If yes, then specific intent/culpability negated by evidence of intoxication at both CL and MPC 4. Are we dealing with a "conscious object" or "purpose" (specific intent) crime? If yes, then specific intent/culpability negated by evidence of intoxication at both CL and MPC 5. Are we dealing with a single mental layer (gen int) crime? -- Under MPC: If yes, is it a "knowingly" crime? -- if so, evidence of self-induced intoxication negates culpability If yes, is it a "recklessly" or "negligently" crime? -- if so, evidence of self-induced intoxication does NOT negate culpability (aka intoxication is not a defense) -- Under Common Law: If yes, evidence of voluntary intoxication does NOT negate intent. 6. If intent/culp negated, is there a lesser-included offense? MISTAKE OF FACT 1. Is this a strict liability crime? If yes, mistake of fact cannot be a defense. If no:

2. Is this a common law or MPC jurisdiction? If common law: 3. Is this a specific intent or general intent crime? If it's specific intent, then it will not matter whether the mistake of fact is reasonable. It need be only an honest or gf mistake. Is the mistake honest or in good faith? If it's a general intent crime, then the mistake must be honest and reasonable. Is the mistake honest or in good faith? Is the mistake reasonable? 4. If in a Model Penal Code jurisdiction: Did the defendant act purposely, knowingly, recklessly, or negligently, as the law may require, with respect to each material element of the offense? MISTAKE OF LAW REASONABLE RELIANCE DOCTRINE 1. Person reasonably relies on an official statement of law; 2. Later determined to be erroneous; 3. Obtained from a person or public body; 4. With responsibility for the: a. interpretation; b. administration, c. enforcement 5. Of the law defining the offense CAUSATION MPC & CAUSATION: MPC 2.03 I. Actual Cause: 2.03(1)(a) (1) Conduct is the cause of a result when: (a) it is an antecedent but for which the result in question would not have occurred. II. In Cases of Potential Superseding Causes A. Crime With Mental Element: 2.03(2)(b) & 3(b) Result is not too remote or accidental in its occurrence to have a just bearing on the actors liability (ie. if something is accidental or remote then it is not foreseeable) - compared to foresee. in CL is thinking more in terms of caus. MPC is thinking more in terms of culpability B. Crime Without Mental Element: 2.03(2)(a) & (3)(a) The actual result is a probable consequence of the actors conduct; see (4) in 2.03 deals w/ probable consequence ACTUAL CAUSATION:- the but for test (CL) Double Concurrent Actual Causes: (1) Accelerated Cause - death at a later time - 2 people shoot victim (D1s shot may have caused victim to die in a few hours and D2s shot caused him to die in 5 mins the one who accelerates the death is the cause) (2) Correspondent Cause - instant death - Action 1- D1 shoots at heart of victim (death is instant) At the same time D2 shoots at brain of victim (death also instant); - But for D1s voluntary act would the harm have occurred when AND as it did? (3) Obstructed Cause- instant death trumps wound - D1 attempted to kill V but his efforts were obstructed by a separate force -- D2 -- who was a more effective killer. - D1 is guilty only of attempted murder.

Types of Intervening Causes: Act of the Victim: Drunk victim dies from own actions of swimming for shore, flows from actions of crashing boats ( NOT liable); Act of 3rd Party: Dr. performed neg surgery on injured victim ( not liable); Act of Nature: Vic left in woods killed by bear/winter storm ( not liable) PROXIMATE CAUSATION Foreseeability: Dependant (responsive) intervening cause: s Conduct + s Intervening Cause Prox Cause (breaks the causal chain and s act is foreseeable) Independent (coincidental) intervening cause: s Conduct + Ind. Intervening Cause NO Prox. Cause ( not liable); (breaks causal chain b/c act coincidental not legally responsible b/c it was not foreseeable) Not in resp. to s wrong; Carjacked guy stays at friends, robber breaks in & kills him, no; hit by car after left on road, yes Intended Consequences Doctrine: D wanted mom to die by poison, worker didnt give it, someone else did, D still liable De Minimus Contribution to Social Harm: cuts vic accidentally; on way to ER for stitches, car is hit; vic dies; no liability; Apparent Safety Doctrine: caused a bit of harm, dropped vic at ER for safety, vic refused treatment and died Not liable; Free, Deliberate Informed. Hum. Interv.: persuades vic to drag race- After, vic crashes & dies; During race, liable, not now; Omission: Fathers failure to protect his child will not absolve attacker even if fathers omiss. to act caused the death STRICT LIABILITY 1) Mens rea requirement? 2) Congressional intent? 3) Public welfare or regulatory offense? 4) Severe penalty? MPC 2.05(2) = minor violation COMPLICITY ACCOMPLICE LIABILITY- see MPC 2.06 CL: Principles to 1st Degree: Actually perpetrated the offense Principles to 2nd Degree: Were actually or constructively present at the crime scene & aided or abetted its commiss. Accessories BEFORE the fact: Aided or abetted crime, but not present at commission Accessories AFTER the fact: Rendered assistance after the crime was complete Will survive the merger Actus Reus of Accomplice Liability Mere presence is not enough Must show encouragement Omission to act, but knowing its happening is not enough Ex. Watching vic on ledge, no; yell jump, yes Can be established thru omission if theres a duty Cop should stop a crime, not citizen Attempt to aid or assist is enough: Making food for s could be argued both ways *Accomplice must possess the requisite criminal intent as defined by statute Accomplice vs. Facilitator (Kaplan) 1. Facilitation single mental layer

- ex.) "I'm giving you this gun because I know you want it. I don't know what you'll be doing with it but I know it's something illegal." 2. Complicity double mental layer - ex.) "I'm giving you this gun because I know you want to use it to commit a bank robbery & I want you to use it that way." Mens Rea: The Intent to Promote or Facilitate a Crime: - the mens rea of accomplice liability is often described in the case law as having two separate (and independent) components: (1) the intent to assist a principal actor in committing target act (2) the intent that the principal actually commit that act - can be and often is implied from a persons actions Accomplice Liability- Double Layer Mens Rea (in other words): -accomplice liability requires a double layer of mens rea:1. Intent to aid the principal and 2. Intent to commit the underlying crime Inchoate Offenses solicitation, conspiracy and attempt ATTEMPT Six Stages of Criminal Process: 1) Conception Not charged 2) Evaluation Not charged 3) Forms intention to proceed Not charged 4) Prepares to commit crime inchoate crime zone 5) Starts commission of offense inchoate crime zone 6) Completion of offense Yes, charged Attempt Defn performs act as substantial step toward committing target crime If successful, attempt goes away & youre charged only with the target crime MPC 5.01 CL: Was a misdem regardless of seriousness of offense attempted;now felony but treated as less than target offense Note on Merging: if charged with both attempt & the substantive offense & found guilty of the substantive offense, then the lesser is absorbed by the greater (attempt merges into the substantive offense) ex.) attempted kidnap. merges into actual kidnapping Mens Rea: Level of culpability is same as it would be for the target crime Actus Reus: 1) Unforeseen interruption; 2) Mistake of judgment (imperfect attempt); 3) Preparation (Not all preps are enough; Degree of proximity matters) Criminal Attempt MPC 5.01 (1) Complete or Incomplete? If complete, target offense a result crime (1)(b); If Incomplete, 1(c) Imperfect: Actor performs all of the acts she set out to do, but fails to attain criminal goal Incomplete: Actor does some of the acts necessary, but stops or is stopped before completing (2) Conduct that may be held substantial under (1)(c): Lying in wait, searching for or following vic; Enticing vic to planned place of commission; Reconnoitering to that place; Unlawful entry of location (structure, vehicle, enclosure) planned for commission; Possession of materials to commit crime; Collection of materials at planned place; Soliciting an innocent agent to help

TESTS FOR ACTUS REUS OF ATTEMPT: 1. Physical Proximity must stand as the first or subsequent step leading to the crime (better for ) 2. Dangerous Proximity (CL) a person is guilty of attempt when their conduct is so near the result that the danger of success is great -Considers: Nearness of danger; Greatness of harm; Degree of apprehension felt (better for ) 3. Indispensible Element whether an indispensible element or aspect remains over which the actor has not yet gained control (ex. an actor who does not yet possess a necessary instrument for the crime) - not yet crossed the line from preparation to perpetration (better for ) 4. Probable Desistence Test whether in the ordinary and natural course of events the s conduct will result in the crime intended (centers on how the far the has already proceeded in starting the crime) (better for prosecution) 5. Abnormal Step whether s conduct has gone beyond point where normal citizen would think better of it and stop (has reached the psychological point of no return of an ordinary law-abiding citizen?) (better for prosecution) 6. Unequivocality (aka Res Ipsa Loquitor Test) test under which the s conduct manifests an intent to commit the crime criticized as setting too high a bar for conviction 7. Substantial Step (MPC) under subsection 1(c) - The most difficult for the prosecutor to make out is the 1st, going down in descending order to the MPC substantial step test being the easiest ***look at the fact pattern you have and consider which test seems to apply and talk about THAT test Relationship b/t Solicitation & Attempt*From most liberal to least liberal 1) All Solicitations are potential Attempts Proximate to or substantial step towards Minority of juris. Ex. M tells N to kill O in Os presence and theyre armed 2) Solicitation PLUS could be Attempt Solicitation coupled with a slight act in furtherance of crime Many juris. Ex. M give N weapon or pays her to do crime 3) Not an attempt unless solicitors overt acts would constitute an attempt if she intended to commit the crime herself Solicitor must play active role in crime; Many juris.- M solicits N to burglarize Os home;M opens Os window for Ns entry; 4) Solicitation is never an attempt- b/c the solicitor does not intend to personally commit the offense- Min of jurisdic. SOLICIATION Criminal Solicitation MPC 5.02 ** Consider accomplice liability; Aider and abetter; Raise both issues - Overlapping area; Going too far? Definitions of Solicitation: 1) Solicitor conceiving of criminal idea; 2) Furthering its commission via another person by; 3) Suggesting to, inducing, or manipulating Uncommunicated Solicitation: Immaterial under Subsec (1) that there was no communication Designed conduct enough

Renunciation of Crim Purpose: Aff. defense if solicited someone, then persuaded him to stop Must have genuine change of heart CL Solicitation is always a misdemeanor Majority: One grade below solicited offense Minority: Same grade as solicited offense Mens Rea: Spec. intent crime Not guilty if jokingly suggests a crime Actus Reus: Solicitation is complete the instance the person requests the crime be committed even if asking is pretending Can be a message to many people at once CONSPIRACY MPC 5.03 Elements of Conspiracy: 1) Agreement to commit the target act 2) Intent to commit the target act itself Begins: 2+ agree (& overt act if needed) Overt Acts Any legal or illegal act to further the crime (Ex.call bank for open time) Less than aiding & abetting; Majority: Requires 1 overt act by 1 party; Minority: Overt act for serious crimes only Ends: 1) Its abandoned or 2) Its completed Rationales for punishing conspiracy 1) Preventative measure; Police intervention can be earlier than attempt; 2) Addresses group criminality (groups create more havoc in society) Prosecutorial Advantage *Tremedous ethical restraint necessary here 1) Separate crime with its own penalties 2) Permits apprehension of potential criminals even earlier than attempt 3) Members are vicariously liable for acts of others even w/o proof of accomp. liab. 4) Allows apprehension & prosecution of groups & from before they joined the group 5) Joins multiple s for trial Jury more easily infers joint criminal activity 6) Continuing offense longer time to file charges less risk of statute of lim. running 7) Venue is more fluid Can be anywhere an act for the conspiracy occurred Address only if undercover agent is present: Bilateral CL: Agreement b/t 2+ to commit concerted action (unlawful act or a lawful act by unlawful means) 2nd person must really be involved, not pretending Unilateral MPC: Focus on 1 person and his belief that he is agreeing with another for purpose of committing crime Most jurisdiction switched from CL to MPC Wharton Rule: Cant be conspiracy if crime logically needed 2 people to complete Ex. Adultery, incest MPC 2.06(6)(b) says person who cant be convicted of a substantive offense as an accomplice cant be convicted of conspiracy to commit it Gebardi Rule: Protects victim of a conspiracy from being charged as a co-conspirator, even if she was part of the agreement MPC 5.04(2) Mens Rea Group crime: Consp. & Accomp. Liab.

Conspiracy: Intent to agree/Intent to commit Accomplice Liability: Intent to assist another; Intent the principle commit crime Attempt: Intent to commit the specific crime that was the actors objective Solicitation: Intent to promote or facilitate commission of specific crime by another Actus Reus Element of Consp; Can be established inferentially, by concerted action, circumstantially s with a number of criminal objectives but 1 agreement have 1 conspiracy Separate agreements can be separate charges of conspiracy- Barnes courts analysis: 1) Informal Nature of Agreement: Need not take any specific form; 2) Need not be spoken/written; 3) Conduct itself is enough; 4) May be contemporaneous with overt acts
Wheel Conspiracy Separate conspiracies linked (spokes) through a single person (hub) People dont know each other but depend on one another for success Chain Conspiracy People may or may not know each other 1 agreement tied to next Manufacturer Distributor Street Dealer

Culpability of Co-Conspirators Held liable if reasonably foreseeable as coming from planned crime (Natural/Nec. conseq. rob bank, steal car) Not liable if you joined conspiracy after crime is done
PINKERTON LIABILITY- Co-Conspirators: (CL) MPC rejects the Pinkerton rule: conspirator only guilty of crime of coconspirator if they could also be held culpable 4 acc.liability too Ex.) aider and abettor is liable for substantive crime, but does not become a co-conspirator b/c he was aiding and not in the agreement Statement of Rule: an overt act of one partner may be the act of all without any new agreement directed to that act. Rationales: (1) co-conspirators are considered each other's agents; and (2) without such a rule, a conspirator behind the scenes could insulate herself from liability for those acts that help the conspiracy succeed. Exceptions: Pink.liability does not attach if the substantive offense committed by one of the co-conspirators: (1) Was not in fact done in furtherance of the conspiracy; (2) Did not fall within the scope of the unlawful project; (3) Was merely a part of the ramifications of the plan which could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement; (4) Occurred before the defendant joined the conspiracy.

Withdrawal & Renunciation from Consp. Question of fact Requires affirmative rejection communicated to co-conspirators CL: No defense once a conspiracy is formed Can 1) Shield from liability of others crimes; 2) Begins running S/L in s favor MPC 5.03: Affirmative & complete defense if: 1) renounces crim. purpose; 2) Thwarts the success of the conspiracy HOMICIDE see MPC 210 Core Elements of Crime: START ANALYSIS HERE: Actus Reus = Killing; Mens Rea= Depends on grade of homicide (mental state); Causation=Actual + Proximate; Circumstances=Another human being

Victim: End of life: Cessation of breathing and heartbeat OR No spontaneous brain activity Criminal homicide: Unexcused/unjustified killing of another human being *CLs Homicide: 1) Murder (by degrees): Killing someone with a guilty mind Intent to kill Engaging in conduct with the knowledge that the conduct will result in someones death Acting with extreme recklessness; distinguished from manslaughter b/c it requires malice aforethought (four ways: (1)intent to cause death or serious bodily injury (2)w/ knowledge that action will cause death or SBI (3)when killing occurred during the commission of a felony (4)or when the perp intended to oppose, by force, an on duty officer or jus of peace) 2) Manslaughter: Killing with a less guilty mind, w/out malice Heat of passion1) Voluntary; 2) Involuntary 1st Degree Murder: Intentional & Premeditated, deliberate -Most particularly heinous types of killing -Premeditated satisfied: Lying in wait, torture, WMD, death by drive-by shooting 2nd Degree Murder: Knowing Catch-all Category -A killing caused by dangerous conduct & s obvious lack of concern for human life -Int. killing that is not premeditated, planned, committed under special/heinous circumstances NOR in heat of passion Voluntary Manslaughter: Intentional; Heat of Passion; no cooling off period Imperfect defense; See passion defense Note:(MPC 210.3) 1) Heat of passion or 2) Ext. Emot. Disturb. OR 3) For which theres an imperfect def. -Lesser included offense of 2nd Deg. Murder; No cool-down time; Adequate cause by vic; Obj: rsbl person standard; Subj: THIS person has been provoked Note: to go from murder to mansl.= I killed V but the killing was a result of circ which lessen the severity (provoked, heat of passion or imperfect defense, I did it b/c I thought V was about to use deadly force not realizing that could have acted less or V did not intend deadly harm and I overacted Involuntary Manslaughter: unintentional killing(1) Committed recklessly;(2) With grossly negligent behavior; doesnt need premeditation Felony-Murder: killing caused during commission of or attempt to commit a felony; imposes vicarious liab. (all felons guilty! (ex.) guard kills teller in bank robbery, all felons liab, ok in maj states, min- killing must be done by a felon) - must be guilty of underlying felony; fel must be inherently dangerous; sep from killing; killing during or immediate flight from felony; death must be foreseeable (V taking self protective action is foreseeable); V must not be a co-felon Note: MPC 210: Abolishes distinction between 1st & 2nd Categories of death-eligible killers if they have killed 1) Purposely; 2) Knowingly, and 3) Recklessly under circumstances manifesting extreme indifference to the value of human life (Murder presumed if is engaged in or fleeing from robbery, rape, burglary, kidnapping)

*MPCs Homicide: not by degree:1)Murder i)intent to kill; ii) xtreme recklessness; iii)felony murder; 2)Manslaughter i)intentional form(commit under EMED); ii)reckless killing ( is aware + consciously disregards a subj + unjusti risk of death 3)Criminally Negligent Homicide- mental state=negligently; should have known about subjective + unjusti risk of death; NOTES: Premeditation Some reflection about the act prior to the act -Spectrum from different jurisdictions: 1)Missouri: a moment in time; 2) Arizona: More than a moment in time; 3) Cali: i) Planning activity; ii) Motive; iii) Manner of kill. MPC presumption of extreme indifference 210.2 Murder What is the legal consequence if the offenses result in murder? Recklessness and indifference are PRESUMED means that the defense will have a chance to rebut the presumption! This is not the felony-murder rule main CL distinction! CL does not have a REBUTTABLE PRESUMPTION (MPC) Mares, Felony-Murder Rule & Merger: (case w/ old woman & house guest who gets stabbed during teen robbery) only liable for the worse of the offenses they merge; Felonies giving rise to merger (Wyo): Sexual assault, Arson, Robbery, Burglary, Escape, Resist Arrest, Kidnap (more MPC 210.2(b)) - flight following a felony counts for felony murder (until has reached a place of temporary safety temp safety=jury issue) Misdemeanor Manslaughter Rule: (invol. mansl.) - abolished in most states by MPC (ex. being culpable for death that occurs after/during commission of a misdemeanor-imposes strict liability for serious offense and is disfavored by courts) ex.) driving thru toll w/out pay not malim in se so death of toll keeper not misdem-manslaughter (only for malim prohibita)
How MPCs EMED (xtreme mental or emo disturbance) is Diff. from CL Manslaughter Standard 1. Specific Act of Provocation Not Required- It is enough if D suffered from condition that caused D to react in an emotional manner. 2. "Cooling Time" Not an Issue- b/c no specific act of provocation required, issue of whether too much "cooling time" before killing becomes moot. D must actually be suffering from disturbance at time of killing. 3. No Artificial Restrictions on Evaluating Whether an Act of Provocation Was Legally Sufficient- Because no specific act required, even words may be enough to trigger D's extreme emotional/mental disturbance. 4. Objective and Subjective Standard- Trier of fact must determine if reasonable explanation for the EMED. Determined from: (a) the viewpoint of a person in the actor's situation; (b) under the circums. as he believes them to be. Standard is both:(1) objective (m/b reasonable explanation or excuse for D's behavior -- D's "idiosyncratic moral values" c/n factor into determination) and (2) subjective (trier of fact should consider both the defendant's physical and emotional characteristics in determining whether reasonable explanation for D's reaction).

DEFENSES Any set of identifiable conditions or circums that may prevent conviction for any offense Legal Defenses: Double jeopardy, speedy trial, delay, venue

Factual Defenses: First line of defense is attacking prosecutors case-in-chief, poking holes in evidence Then, when its s turn, we see affirmative defenses Affirmative Defense: must prove by preponderance of the evi. Complete Defense: If ur successful, you go free; not Insanity JUSTIFICATION DEFENSES Even IF prosecutor has proven the crime, there is a reason for this to have committed this crime; It is ordinarily impermissible to kill another person. However, if the person has a knife at D's throat, D is permitted to kill in self-defense. From society's perspective, D's actions are "justified" given all of the circumstances. ie.) Self-Defense; Defense of Others; Defense of Property; Law Enforcement; Necessity (or Choice of Evils) SELF-DEFENSE CL Elements: (1) an (a) honest and (b) rsble fear of death or great bodily harm; Good faith reasonable belief (2) from an imminent and unlawful threat; necessity (3) proportional response to that threat; and proportionality (4) was not the initial aggressor. proportionality Some jurisdictions have a fifth requirement: (5) duty to retreat. Proportionality (ND has this Must attempt to get away before using deadly force Duty only if you know you can retreat safely Exception: Castle Doctrine: Attacked in your home; Unless is initial aggressor OR Attacker is coworker & at work) MPC 3.04: must 1) Actually believe the force was necessary to protect himself from the use of imminent use of unlawful physical force by another person; AND 2) Belief must be reasonable under the circumstances *Differences: MPC belief doesnt have to be rsbl (cant be reck or neg) Instead of imminence, MPC allows immed. necessity on present occasion (earlier) Less strict proportionality in MPC (deadly force for kidnap) Honest & Rsbl Fear: Must really feel scared & attacked, not just if the rsbl. person would feel that way If rsbl. person would think it was a real gun, it can be treated that way Elements to consider from Goetz: 1) Physical attributes; 2) s prior experiences; 3) Circum. finds himself in (physical movements, comments of assailants) Absence of Imminence is often a problem; Subj. belief is enough Utilitarian: Better aggressor dies than innocent person Allow people to defend; Retributivist: Right of an innocent person to life is superior than that of an aggressor Self-Defense by an Aggressor: Ordinarily not allowed Cant create own necessity of force Exceptions: Non-deadly aggressor met with deadly force; Aggressor made effective withdrawal, then is attacked DEFENSE OF OTHERS Majority: Rsbl. belief intervention is nec. Minority: Alter-Ego rule: Stand in shoes of person being attacked- be careful DEFENSE OF PROPERTY - prop less valuable than human life - see MPC 3.06 allows deadly force to defend property

1) Person is being dispossessed illegally & 2) Intruder is committing felony against property (burglary/arson) and has threatened deadly force to person OR 3) Attempting to use non-deadly force to prevent felony would expose person to subst. risk of serious bodily harm CL Rule: use of deadly force not justified to protect property unless: Make My Day law jurisdictions - deadly force may be used to protect a resident when residents home is being invaded & they believe attack is directed toward persons (even if resident is unclear if attack is focused on possessions or persons) not justified if house unoccupied ARREST/ USE OF FORCE Law Enforcement Defense: Arrest Authority for Police CL: Without warrant, officers must have: 1) Rsbl. grounds there was felony OR 2) If misdemeanor committed in front of cop Non-Deadly: Rsbl. belief it is necessary to make arrense for felony or misdemeanor Even if turns out innocent Deadly: Majority: Allowed to prevent escape of felon; Minority: Only if escaping felon is dangerous (armed or committed ser. crime) Police Self-Defense during Arrest 1) If met with forcible resistance; 2) Entitled to use force, including deadly; 3) Rsbly fear imminent death or serious inj. **FOR police Arrest & Use of Force SEE MPC 3.07** CITIZEN ARREST: Non-Deadly: Crime committed in citizens presence Only for misdemeanors involving breach of the peace Deadly force: More narrow Rsbl. belief offender committed felony Strict liability (you better be right!) Minority: Offender committed dangerous felony or is armed NECESSITY DEFENSE: MPC v. COMMON LAW Generally, the MPC necessity defense is broader than the common law defense in three ways: (1)The MPC has no imminence requirement. (2)There is no absolute prohibition on self-created necessity. is only responsible for any crimes of recklessness or negligence caused by her actions. (3) Necessity is available in homicide prosecutions. INSANITY - If successful, committed CL: No death; Assert @ pre-trial; Question of competency for jury; Burden is C&C MNaughten Test: Out of touch with reality; Hearing voices; delusional belief system Excused if: 1) At time of crime; 2) Result of mental illness; 3) Didnt KNOW what he was doing (cognitive el.); 4) Did not know it was WRONG Majority: No if knew he was breaking the law Minority: Even if he knew, his warped beliefs can be considered Irresistible Impulse Test: Policeman at the elbow test; Insanity destroyed s power to choose Extreme Volitional Test: Impulse too strong to resist No reflection time MPC: not resp. if: 1) At time of crim; 2) Result of mental illness; 3) Lacked capacity to a) APPRECIATE the CRIMINALITY of conduct OR b) CONFORM conduct to law;

Durham Product Test: Jury decides 1) Insane at time; 2) Would have occurred w/o insanity EXCUSES No capacity to choose = No blame Duress: Threat caused to commit crime Diminished Capacity Twinkie defense: couldnt 1) Maturely/meaningfully reflect; 2) Comprehend his duty to follow laws Entrapment: MPC 2.13: 1) Inducement; gov. POTE; 2) Predisposition; gov. BARD: 1) Hist. of crim. conduct similar to this crime; 2) formed design; 3) Ready response; Tests: Subj: Predisp.; Obj: Govt. Conduct INFANCY & INCAPACITY
MPC 4.10: No bar to finding of criminal liability but requires transfer to Juvenile Court if D is under 16; Many jurisdictions, have made this only a rebuttable presumption Ages 0-7: Complete Automatic Infancy Defense Child under age seven does not have the cognitive capacity to form the mens rea for any crime; Ages 7-14: Infancy Rebuttable Presumption Child is presumed incapable of committing a crime; equivalent of M'Naghten; Over the age of 14: No Infancy Defense

ENTRAPMENT 3 Tests: (1)Predisposition Test: if was "predisposed" to commit the crime and law enforcement agents only offered him the opportunity to do so, there is no entrapment defense; (2)Gov. Conduct: Was the government's conduct likely to have induced a law-abiding person to commit the crime?; (3) 2.13 IMPOSSIBILITY Factual: No defense; Used to be at CL Hand in empty pocket; shoots at corpse Legal: Yes, defense; Law doesnt prohibit the goal sought to achieve No guilt even if believes they are engaging in unlawful behavior impossibility (ex. buys baby powder thinking its cocaine) ABANDONMENT No defense in most places
If yes, only applies if voluntarily & completely abandons the crime Must not have already caused serious harm to vic See MPC 5.01(4) Voluntarily: Genuine change of heart No unforeseen resistance, lack of essential tool, change to increase likelihood of arrest, etc Completely: Not merely postponing until you have a better opportunity

Mistake of Fact If can negate spec. intent, you can still rely on gen. intent 1) Strict liability? If yes, no defense 2) CL or MPC? CL: If spec intent, good faith mistake works; If gen intent, mistake must be honest & reasonable (blk. umbrella) MPC: Culpability (knowingly, purposely, etc) must be satisfied for each element of it Mistake of Law No defense Exceptions: Reasonable Reliance Doctrine: 1) reasonably relied on statement of law; 2) Later determined to be erroneous; 3) Obtained from person or public body; 4) Respon. for Interpret., Admin, Enforce; 5) Of the law defining the offense Failure of Proof Claim: Knowledge the prohibited conduct constitutes an offense is itself an express element of the crime