CRIM LAW OUTLINE - REBOOT

The basics

Jury Nullification the basics

Jury ignores judges instructions and vote party not guilty. Only works for
acquittal.
Empowered by the 5th amendment, this prevents double jeopardy.
Designed to prevent retribution.
Juries generally unaware of this right so it could influence verdicts if they
knew.
Method to deal with racial disparity in prison

State vs. Ragland, pg 19, Convicted of weapons possession. Judges

instructions included the phrase must find him guilty. Ragland argued he
had a right to jury nullification, and that Judge should have phrased may find
him guilty.
a. RULE: Jury nullification is not one of the precious attributes to a
trial by jury.
b. HELD: Because the right to jury nullification does not change with
the wording of instructions, Ragland does not have a constitutional
right to jury nullification.
Theories of Punishment
Retributivism
Utilitarianism
People v. Du, pg 54, The Defendant was convicted of voluntary manslaughter
following the shooting of fifteen year old after an altercation in a convenience
store owned by the Defendants family.
a. RULE: In imposing a sentence, a judge must first consider the
objectives of sentencing a defendant, including: (1) to protect society;
(2) to punish the defendant for committing a crime; (3) to encourage
the defendant to lead a law-abiding life; (4) to deter others; (5) to
isolate the defendant so she cannot commit other crimes; (6) to secure
restitution for the victim and (7) to seek uniformity in sentencing.

Getting to the Analysis

1) Identify the issue - what is it they can be convicted of? (David removed Jeff's speakers) Will he be
convicted of...?
2) Crime: is an act or omission and its accompanying state of mind which, if duly shown to have taken
place, will incur a formal and solemn pronouncement of the moral condemnation of the community.
3) There are 3 major sources to look at, or will be asked of me, when analyzing whether a crime has
been committed. The Model Penal Code, which provides a source of uniformity in the law, but is not
forced upon any state. There's the New York State Penal Law, which is largely based on the MPC.
There's also common law, which is not codified but is judge-made law.

4) Define Crime(s) that have been committed:

a) MPC -> Intentional Murder, Manslaughter, Negligent Homicide
b) NYPL ->Murder in the 1st, Murder 2 in the 2nd, Manslaughter in the 1st, Manslaughter in
the 2nd, criminally negligent homicide.
c) Common Law-> Abandoned & malignant heart murder, manslaughter
5) Regardless of the source, each statute prohibits either a certain result or certain conduct.
a) In a result prohibiting statute, the prosecutor (the People) must prove B.A.R.D every element
of the offense, or the actus reus (and required attendant circumstances), mens rea, and
causation prohibited by the statute. actus reus + mens rea + causation = crime.
b) In a conduct crime, there is no causation, since the actus reas applies to the prohibited
conduct. The prosecutor must prove actus reas and mens rea = crime.

I.

The ACTUS REUS is the physical or external element of the crime; the actual social harm
resulting from either a voluntary physical act or an omission where the defendant had a legal
duty to act.
RULE: Actus reus requires 1) a voluntary act or an omission plus duty; and 2) social harm.
1. Apply to crime (social harm). What is the actus reus prohibited by the statute?
RULE: For there to be an actus reus a social harm, defined by the statute, must have been
committed.
Must be applied to every social harm element.
2. Was it voluntary?
CL

NYPL 15.00

MPC 2.01

Willed muscular contraction.

"Act" means a bodily movement.

Not specifically defined, but...

"Voluntary Act" means a bodily movement

performed consciously as a result of effort or
determination, and includes the possession of
property if the actor was aware of his physical
possession or control thereof for a sufficient
period to have been able to terminate it.

A person is not guilty of an offense unless

his conduct includes a voluntary act or the
omission to perform an act of which he is
physically capable. The following are not
voluntary acts:

reflex or convulsion

bodily movement during

unconsciousness or sleep

conduct during hypnosis or

resulting from hypnotic
suggestion

Bodily movement that otherwise

is not a product of the effort or
determination of the actor either
conscious or habitual.

b) If places self in position of possible seizure=VOLUNTARY (Decina drove

knowing he had seizures)
c) NOT VOLUNTARY: A person is not guilty of an offense unless his conduct
includes a voluntary act or the omission to perform an act of which he is physically
capable. Must be a voluntary act in order to be a crime. (RULE from Martin)
2a. ATTENDANT CIRCUMSTANCES Special factors that must be present in some, but not all, crimes. For example, some
degrees of burglary will require that it be night-time, or that the invaded structure be an

occupied dwelling, etc. Statutory rape will require that the female be below a certain age,
etc. Attendant circumstances (as we will discuss) most often raise legal difficulties when the
defendant claims a mental state mistake about the presence of the circumstance (I thought
the building was occupied; I thought she was 19 years old, etc.).
here, throw is satisfied because the facts say she threw...
here the facts say she threw bags of old oil..."

OR

3. OMISSON + LEGAL DUTY?

a. 5 situations which are a legal duty (RULE from Beardsley, did not owe duty to gf, only to
wife)
1. statute imposes a duty (parent to child)
2. where one has a certain status relationship with another (husband/wife)
3. where one assumes contractual duty to care for another (lifeguard)
4. where one has voluntarily assumed the care of another and so seclude the helpless
person and prevented other from rendering aid
5. when person creates a risk of harm to another (starting a fire)
b. Doctor withholding life support is an OMISSION but does NOT have a duty once
treatment is no longer effective (RULE from Barber)
c. Kitty Genovese raises policy issue omission. Omissions are more ambiguous than acts and
therefore harder to determine motives. Also, it's more difficult to define who is responsible
for an omission. Issue of individual freedom/value of liberty. Well meaning bystanders may
make matters worse - make room for the heroes.
CL

NYPL 15.00

MPC 2.01 (3)

If the defendant does not have a duty to

act, then the defendant is not criminally
responsible for a failure to act.

"Omission" means a failure to perform

an act as to which a duty of performance
is imposed by law.

Liability for the commission of an

offense may not be based on an omission
unaccompanied by action unless: (a) the
omission is expressly made sufficient by
the law defining the offense or (b) a duty
to perform the omitted act is otherwise
imposed by law.

MENS REA
II. The MENS REA is the mental or internal component of the crime; the culpability of the actor. Mens
Reas is the guilty mind, internal part of crime, actors state of mind regarding the crime.
RULE (NY): For the mens rea element of a criminal statute to be satisfied the accused must commit
the actus reus with one of four mental states: 1) Intentionally, 2) knowingly, 3) recklessly, or 4)
criminal negligence, unless it is a strict liability crime. Courts will read into the statute unless there is
a legislative intent to impose strict liability. It is assumed that a mens rea applies to all components of
the crime.
RULE (MPC): For the mens rea element of a criminal statue to be satisfied the accused must commit
the actus reus with one of the four mental states: 1) Purposely, 2) knowingly, 3) recklessly, or 4)
negligently. The MPC rejects strict liability except for violations. It is assumed that a mens rea applies

to all components of the crime "unless a contrary purpose plainly appears."

RULE (CL):
What elements does the mens rea term modify?
RULE: (MPC 2.02 (4)) A single mens rea term modifies every material element of an
offense, "unless a contrary purpose plainly appears."
RULE: (NYPL (Kirk's rule) A mens rea term will modify all of the elements of a statute
unless a contrary legislative purpose appears, although a mens rea term is less likely to modify
an attendant circumstance than other terms.
What if no mens rea term appears?
Don't forget to address strict liability - the prosecutor will argue that if it lacks a mens rea
term, it's a strict liability crime. Address or rebut!

Here, discuss the statute. The prosecutor will argue that it is a strict liability statute because
there are no mens rea terms and it is a public welfare statute. The defense attorney will
argue that the NYPL supports reading in mens rea, as does the sentence which could be jail
time. Compare facts to Staples v. United States (firearms) and Garnett v. State (statutory
rape).
RULE: (MPC 2.02(1)) If there is no mens rea term "except as provided in Section 2.05," some
level of culpability is required for each material element.
RULE : (MPC 2.02(3) "When the culpability sufficient to establish a material element of an
offense is not prescribed by law, such element is established if a person acts purposely,
knowingly or recklessly with respect thereto."
RULE: (NYPL 15.15(2)) A statute defining a crime, unless clearly indicating a legislative
intent to impose strict liability, should be construed as defining a crime of mental culpability.
THEN...Go to the Staples rule and analyze whether it's a strict liability crime or not.

What if there is only one mens rea term?

RULE: (NYPL 15.15 (1)) "When one and only one [mens rea] term appears in the statue, it
is presumed to apply to every element of the offense unless an intent to limit its application
clearly appears."
MPC: See MPC 2.02 (4)

a. Common Law: "the act does not make a person guilty unless the mind is also guilty."
Cases: Regina v. Cunningham (elemental approach to mens rea)
Defendant rips gas meter off of wall, thus seriously asphyxiating his mother-in-law.
o RULE: At common law, some courts interpreted maliciously to mean an actual
intention to do a certain harm or recklessness as to whether such harm should
occur or not.
b. Evolution of MENS REA:
Back in the day, mens rea had a very broad meaning, and didn't get into levels of
culpability. The focus was on the guilty mind, morally culpable state of mind. This is

common law.
Then it became more narrow (elemental approach it looks at the definition of the statute!)

c. NY applies the elemental approach (which applies to every material element) as opposed to the
culpability approach (any morally blameworthy state of mind)
d. There are 2 categories of mens rea in common law: specific intent crimes which require intent
and knowledge and general intent crimes with require recklessness and negligence.
e. Sometimes an extra mens rea is required, needing proof of the actor's awareness of attendant
circumstances.
1) Knowledge - of attendant circumstances.
i.
NY requires actual knowledge (subjective) of conduct, not result (no willful blindness which is deliberate ignorance/should have know), MPC use willful blindness=knowing 2.02
(7),(8)
ii.
Cases:
i.
State v. Nations - 16 yo stripper - rejected lower ct that followed MPC - MO
excluded broadened definition of "knowing". They forgot negligence!
ii.
willful blindness while provided for in the MPC, is not in the penal code
of Missouri
iii.
ACTUAL knowledge!! In NY, however, can use the term recklessly instead of knowingly.
iv.
POLICY Court prefer mens rea and if not defined in the statute, presumption in NY is that
mens rea terms modify entire statute. Courts, however, are less likely to modify attendant
circumstances.
v.
Muscarello vs. United State, (lenity), pg 120, Tried and convicted of drug offense while
carrying a firearm. Firearm was in the glove compartment. Appealed on the basis that
carrying doesnt include the glove compartment.
a. RULE: The rule of Lenity does not apply when the Legislatures intent can be
inferred.
2) Transferred Intent (legal fiction)
a) Transfer Intent Doctrine: when one intends to cause harm to another, but actually causes a
social harm to someone else.
i.
Many problems with these transferred intent scenarios. Seen as unnecessary and
impractical.
ii.
Common law: if you have the intent to do something and you miss, the intent is still
there. So transferred intent does not even need to be looked at.
iii.
NY Penal Code (125.25 Murder in the Second degree) includes this
doctrine/scenario, so transferred intent is not necessary as a doctrine bc it is included.
iv.
MPC approaches issue of mens rea applying Elemental Approach. This mean that the
prosecutor must prove def. committed each material element of the charged offense
with a particular state of mind required in the defendant at that time.
v.
Case: People v. Conley - boy swings at boy but misses. RULE: Intent can be inferred
from the surrounding circumstances:
o offender's words
o weapon used
o force of the blow
3)

ALSO principles of statutory construction assist in resolving mens rea issues.

i.
Legality/statutory Interpretation Principles: 3 principles/doctrines of relation between
courts and legislature.
1. Principle of Legality: nullum crimen sine lega - nulla poena sine lege - "no
crime without law, no penalty without law" condemns judicial crime creation.
2. Constitutional Doctrine of Void-for vagueness: Due Process Clause of
Constitution forbids wholesale legislative delegation of lawmaking authority to
the courts. Statute cannot be so vague (definitiveness/over breadth) that it will
punish innocent conduct.
3. Lenitystatutes should be biased in favor of the accused when the language is

vague; ways to look at the statute (not in NY).

5.00 - "The general rule that a penal statute is to be strictly construed
does not apply" = lenity does not apply in NY.
Model penal code rejects the lenity doctrine as well.
Puts more burden on the courts to figure out intent.
NY Penal law, not strictly construed!; but must be construed
according to fair import of their terms to promote justice.
ii.

Statutory construction: if the statute is clear and unambiguous, apply it. If it is

ambiguous, interpret the statute to serve legislative intent by looking at the purpose of the
statute appearing from: (RULE from in Re Banks)
1) The whole, phraseology, the words,
2) The law as it prevailed before the statute
3) The mischief to be remedied
4) The remedy
5) The end to be accomplished
6) The statute in pari material (preamble, title, etc)
7) Also, look at legislative history, earlier statutes on the same subject, common law at
the time of the statute and interpretations of similar statute
8) Words are not presumed to be redundant.

iii.

EX-POST FACTO rule in Constitution: Legislature cannot retroactively punish

someone. (Keeler v. Superior Court - RULE: Penal code prohibits punishing anyone for
a crime not specified by the statute. No one can be convicted or punished for an act Ex
Post Facto.)
Legislature DEFINES crimes and Courts apply. Separation of powers.

iv.

Legality/Statutory
Principles

MPC: Does NOT

follow lenity doctrine;
statute construction
should follow purposes
of state (leg. intent)

5.00 Does NOT

follow lenity doctrine.
Do NOT read strictly
or against legislature.

Legality: No judicial
crime creation.
Lenity: strict
construction means
uncertainty goes in
favor of accused.

vi. CONCURRENCE: Mens rea and actus reas must exist at the same time (for conduct
crimes). If you have the intent to kill and are driving and don't see your victim, it
wasn't mens rea at the time.
Model Penal Code
Elemental approach:

The prosecutor must prove that the defendant committed

each material element of the charged offense with the
particular state of mind required in the definition of that
crime

Guilt cannot simply be based on proof that the defendant

committed the actus reus or an offense in a morally
blameworthy manner (general intent)

New York Penal Law

Elemental approach:

Like MPC, applies mens rea to every term in statute. Less

likely to read any mens rea term in for attendant
circumstances.

Purposely: A person acts purposely with respect to a material

element of an offense when:

Intentionally: a person acts intentionally with respect to

a result or to conduct described by a statute defining an
offense when his conscious objective is to cause such
result or to engage in such conduct.

a) if the element involves the nature of his conduct or a result

thereof, if it is his conscious object to engage in conduct of
that nature or to cause such a result
b) if element involved the attendant circumstances he is
aware of the existence of such circumstances or he believes
or hopes they exist.

CONSCIOUS OBJECTIVE

CONSCIOUS OBJECTIVE TO CAUSE RESULTS,

AWARE OF ATTENDANT CIRCUMSTANCES

Knowingly: a person acts knowingly with respect to a material

element of an offense when:
a) if the element involves the nature of his conduct or the
attendant circumstances he is aware that his conduct is of that
nature or that such circumstances exist, and

Knowingly: with respect to conduct or a circumstance

described by a statute defining an offense when he is aware
that his conduct is of such nature or that circumstance
exists.
AWARE THAT HIS CONDUCT...

b) if the element involves a result of his conduct, he is aware

that it is practically certain that his conduct will cause such as
result.
(satisfied by knowledge of high probability of its existence)
AWARE OF NATURE OF CONDUCT and AWARE IT
CERTAINLY WILL CAUSE RESULT
Recklessly: a person acts recklessly with respect to a material
element of an offense when he consciously disregards a
substantial and unjustifiable risk that the material element
exists or will result from his conduct. The risk must be of such
a nature and degree that, considering the nature and purpose of
the actor's conduct and the circumstances known to him, its
disregard involves a gross deviation from the standard of
conduct that a law abiding person would observe in the actor's
situation.

Recklessly: with respect to a result or to a circumstance

described by a statute defining an offense when he is aware of
and consciously disregards a substantial and unjustifiable risk
that such a result will occur or that such circumstance exists.
The risk must be of such nature and degree that disregard
thereof constitutes a gross deviation from the standard of
conduct that reasonable person would observe in the situation.
A person who creates such risk but is unaware thereof solely
by reason of voluntary intoxication also acts recklessly.

CONSCIOUS DISREGARD of SUBSTANTIAL and

UNJUSTIFIABLE RISK; RISK THAT IS AGROSS
DEVIATION FROM STANDARD OF CONDUCT THAT
IS OF A LAW ABIDER

Difference btwn: NY has provision for voluntary intox as

recklessly.

Negligently: A person acts negligently with respect to a

material element of an offense when he should be aware of a
substantial and unjustifiable risk that the material element
exists or will result from his conduct. The risk must be of
such as nature and degree that the actor's failure to
perceive it, considering the nature and purpose of his
conduct and circumstances known to him, involve a gross
deviation from standard of care that a reasonable person
would observe in the actor's situation.

Criminal negligence: with respect to a result or to a

circumstance described by a statute defining an offense when
he fails to perceive a substantial and unjustifiable risk that
such result will occur or that such circumstance exists. The
risk must be of such nature and degree that failure to
perceive it constitute a gross deviation from the standard of
care that a reasonable person would observe in the
situation.

AWARE OF AND CONSCIOUSLY DISREGARDS A

SUBSTANTIAL AND UNJUSTIFIABLE RISK, GROSS
(common law is ordinary) DEVIATION

FAILURE TO PERCEIVE
SHOULD BE AWARE OF SUBSTANTIAL AND
UNJUSTIFIABLE RISK, RISK MUST BE OF NATURE
THAT GROSS DEVIATION OF CARE OF
REASONABLE PERSON
Requirement of willfulness satisfied by acting knowingly. A
person acts knowingly with respect to the material elements of
the offense, unless a purpose to impose further requirements
appears.
Reads in purposely, knowingly, recklessly if no mens rea
listed, but not negligently.

Differences between MPC & NYPC

Apply mens rea to every term except if its strict liability

crime.
Less likely to read in mens rea for Attendant
Circumstances!

MPC has Purposely - NYPC has Intentionally

MPC under Purposely has conduct, result, att. circum - NYPL just has conduct and result
MPC under knowingly has conduct, result, att. circum - NYPL just has conduct and att. circum (no result)
MPC under knowingly has "practically certain you are aware - NYPL doesn't.
MPC is titled negligently - NYPL is titled criminal negligence. MPC has awareness, NYPL doesn't.
The differences are there for NYPL to prosecute more broadly.

4) Mens Rea: Problems in Statutory Interpretation

i.
Cases: Flores-Figueroa vs. US, (elemental approach to mens rea), pg 170, FF is a Mexican
citizen. Used fake ID to secure employment, 6 years later updated info, this time with ID info
of real person. RULE: The mens rea element "knowingly" for the federal crime of aggravated
identify theft requires that the defendant know that the false identification he used actually
belonged to another person.
ii.
How does NY approach culpability?
Comparison of NYPL and MPC Approaches to Interpreting Culpability in Relation to All Aspects of a Statute.
NYPL
MPC
2.02 (3) Culpability Required Unless Otherwise Provided. When the culpability
sufficient to establish a material element of an offense is not prescribed by law,
15.15 When one and only one of such terms such element is established if a person acts purposely, knowingly or recklessly
appears in a statute defining an offense, it is
with respect thereto.
presumed to apply to every element of the
(4) Prescribed Culpability Requirement Applies to All Material Elements. When
offense unless an intent to limit its application the law defining an offense prescribes the kind of culpability that is sufficient for
clearly appears.
the commission of an offense, without distinguishing among the material
elements thereof, such provision shall apply to all the material elements of the
offense, unless a contrary purpose plainly appears.

5) Strict Liability Offenses - An exception to requiring Mens Rea

a. An exception to requiring a mens rea in a statute are for PUBLIC WELFARE OFFENSES.
b. CRITICIZED: For not deterring.
c. Cases: STAPLES v. UNITED STATES: Staples is charged with the strict liability offense of
possession of an unregistered firearm
RULE: When dealing with a law with a severe penalty, the usual presumption that a
defendant must know the facts that made his conduct illegal should apply.
The problem is the statute itself doesnt have a mental state requirement there is no
mens rea requirement in the statute. SO he has to convince the court to read mens rea into
the statute insert knowingly
Guns are so common they can be owned in perfect innocence. SO this offense
should not be likened to folks having a grenade in their house. Guns are common and
innocent grenades are not.
o IF something has lesser punishment the court may be more likely to say it is
strict liability where if the punishment is very severe the Court might
find it unfair to disregard the need for mens rea
From Dissent: Factor to consider for whether a statute is strict liability:
o omits mention of mens rea; (although some courts can read mens rea into
the statute model penal code yes (so SC yes) and NYPenal Code Yes)
o a matter of policy;
o the standard is reasonable and proper to expect people to follow
o the penalty is relatively small
o the crime does not carry a heavy stigma;
o common law treatment of the crime;
o statutory interpretation principles;
o congressional purpose
c. Cases: Garnett vs. States, pg 186, Defendant befriended and had intercourse with an
underage girl. Hit mental retardation brought up as a defense to strict liability code.
RULE: Mental state is irrelevant when dealing with strict liability crimes. Statutory rape
is a strict liability offense often justified on the moral wrong theory, defendant acting
without mens rea deserves punishment for having violated moral teachings that prohibit

sex outside of marriage.

Mistake of age (fact) is not a defense to statutory rape.
HELD: Conviction upheld, 5 years probation.

d. POLICY: courts dont like strict liability bc for retributive reasons bc person may not be
worthy of punishment without moral intent. Why punish when they had no intent anyway? We
wont deter people. Many reject the concept of strict liability and that punishing conduct without
reference to the actors state of mind fails to reach the desired end and is unjust.
e. Exception to low level offense strict liability is ***statutory rape*** no mens rea required;
strict liability offense.
Usually, a strict liability offense is 1) a public welfare offense, 2) minor violation.
Except statutory rape - severe punishment
Unless statute clearly indicates strict liability offense, then it should be constructed as
requiring mens rea. If lacks mens rea term....????
If punishment of the wrongdoer far outweighs regulation of the social order as a
purpose of the law in question, then mens rea is probably required.
To determine if strict liability: look at language of statute, legislative intent, public
policy and severity of penalty.
MPC usually rejects strict liability, except in social welfare offenses.
NY reads in mens rea if not there (up to the court), unless strict liability.

CAUSATION
III.
Causation RULE: For crimes that prohibit a certain result, there must be a causal link
between a def's voluntary act (or omission w/duty) and the result prohibited in the statute. In
criminal law, to establish causation, the prosecutor must establish 2 types:
1) actual cause &
2) proximate cause
RULE: In order to establish actual causation here, you apply the but-for test: If the result required by
the statute (insert prohibited act here) would not have occurred but-for the defendants act, then the
defendant is an actual cause of the result.
1) Actual Cause - (also called "cause in fact")
Courts apply different test depending on the facts
"But For" test is the traditional test, but other tests apply when "But For" doesn't
work (But for def's actions, result wouldn't have happened)
Substantial Factor Test: In a homicide case, the substantial factor test applies where
the defendant along with one or more other actors, acting separately and not in
agreement with one another, commit separate acts, each of which alone is sufficient
to bring about the prohibited result of death.
Acceleration Test: If the first act is a lethal one, and the second is non-lethal, the
second act is a cause ONLY IF IT ACCELERATES the result (Oxedine v. State)

2) Proximate Cause - the doctrine of proximate or legal causation serves the purpose of
determining who or what events among those that satisfies the but-for standard should be held
accountable for the resulting harm. NEED BOTH actual and proximate cause to find defendant
guilty. Establishing proximate cause is done to promote fairness and justice. Proximate cause can

be broken by a superseding intervening cause.

Applies with BUT FOR established. Even where defendant is the actual cause courts decline
to impose criminal liability where it would be unjust, based on fairness and policy
considerations, to hold the def criminally responsible for the prohibited result. Doesnt serve
utilitarian purpose-intervening if causes not foreseeable.
A defendant may be the actual cause of someones death and not the proximate cause.
A defendant may NOT be the proximate cause of someones death unless the defendant is the
actual cause.
PROXIMATE Cause can be broken (superseding intervening cause):
Doesnt break the chain:
Omissions (i.e. If an omission is an intervening cause, courts are unlikely to allow
the omission to break the chain of responsibility does not break chain of causation
omission plus duty would break the chain). nothing can never supersede
something
Intended Consequences (Mom gives poison to nurse to give to son, but poison is
eventually given to son by someone else.).
Breaks the chain:
Apparent Safety (If someone reaches a place of apparent safety, the defendant is no
longer responsible for his or her safety).
If the intervening cause is Free, Deliberate and Informed Human Intervention it is
more likely to break chain of causation for the defendant. Doctor killing professor
after seeing who he was. These are likely to break the chain of causation.

Cases: People v. Rideout, pg 220, Drunk driver causes car accident. Passengers
of other car exit vehicle unhurt. One returns to vehicle, struck by oncoming 3rd
car.
a. RULE: To establish proximate cause, there must not be any intervening
superseding cause after defendants initial actual cause and the resulting
secondary social harm.
b. HELD: Intervening superseding proximate cause - i.e., returning to
vehicle - lead to their own death.

Velazquez v. State, pg 229, Men racing cars, once finished, one drives
recklessly and crashes and kills himself.
a. RULE: Recklessness that leads to injury or death does not create
proximate cause on another actor when one's own recklessness
contributed to the social harm/prohibited result.
b. HELD: Florida and other courts have declined to impose criminal
liability in causation of a prohibited result:
where danger created is beyond the scope of the defendant .
where is would be unjust, based on fairness and policy
considerations.

State v. Rose, pg 232, Man hits person with his car and keeps going. Body
is dragged under car. Is Man cause of death?
a. RULE: If the person died upon impact and the driver was not acting
negligently, he is not responsible for death.

b. HELD: Court cannot prove that person was still alive while being
dragged, and therefore cannot prove there was a prohibited result for
causation.
Class Hypos:

Coincidental cause RULE - If it is coincidental it breaks the chain of

causation if it is UNFORESEEABLE
Didnt have anything to do with what the defendant did.
If I stab someone and a wolf breaks out of a zoo and comes by and eats them. This is
abnormal and unforeseeable, so it breaks the chain unless it was foreseeable (like a car
coming down the highway).

Responsive cause RULE If it is responsive intervening cause it will break

the chain of causation if it ABNORMAL and unforeseeable.

If the wolves in the woods in Alaska smell the blood then come to eat the person. If its
responsive, in response to what the defendant did, it makes it harder to break the chain.
Only breaks the chain if its unforeseeable and abnormal.

If a car is going the speed limit, and hits someone, that's foreseeable. If the car is going above
the speed limit, defense could argue that was unforeseeable, and that may break the chain.

Model Penal Code:2.03

subsections 2 &3: based on the theory that but-for causation is the only strictly causal
requirement that should be imposed generally and that the remaining issue is the
proper scope of liability in light of the actors culpability
subsection (2): if the actual result is not within the purpose or contemplation of the
actor, the culpability requirement is not satisfied
subsection (2)(a): if actual result differs only to the extent that a different person or
property was injured or affected
subsection (2)(b): the actual result involves the same kind of injury or harm as that
designed or contemplated, but in which the precise injury inflicted was different or
occurred in a different way.
e. Subsection (3): recklessness or negligence is the required culpability and in which
the actual result is not within the risk of which the actor was aware or, in the case of
negligence, of which he should have been aware

DEFENSES
IV.

Defenses
1) MISTAKE AND MENS REA
Mistake of Fact: there is no intent, so there is no mens rea: The mistake of fact must negate
the mens rea by hypothetically removing the attendant circumstance
Definition of intent: conscious objective to get results
Cases: PEOPLE v. NAVARRO:
took 4 wooden beams from a construction site, Judge told jury to convict if
they could find that Navarro had a reasonable and good faith belief that he was
guilty of grand theft when taking the beams: a specific intent crime
argued that the jury instruction should have simply been on good faith belief
The Court found that: An honest mistake of fact or law is a defense when it
negates a required mental element of the crime.

RULE: For specific intent crimes, good faith mistake is a defense when it
negates a required mens rea of the crime.
The MPC and NYSPC make no distinction between general intent and specific intent crimes.
If you make a mistake of fact, the mistake of fact defense is allowed if it negates the Mens
Rea required to establish a material element of the offense.
Ds are only guilty of the offense they believe they are committing, not the actual one being
committed if there is a mistake of fact.

Class Hypo: If I killed someone, but thought it was a ghost, am I guilty?

Theres knowledge that it was a ghost, so theres no mens rea. Its a mistaken fact. I may be found
not guilty
Ignorance/mistake of fact ignorance or mistake of fact negates the purpose, knowledge, belief,
recklessness or negligence.
If its in the category of general intent like negligence or recklessness, you have to be
reasonable.
If its knowingly or intentionally, there doesnt have to be a reasonableness component.
2) MISTAKE of LAW you cant argue ignorance of law UNLESS.

NYPL (&MPC) provision

PEOPLE v. MARRERO: CT Federal Pen officer gets arrested for having his
gun at a NY club, pleads mistake of law, cites the NYPL.
The MPC limits when you can have the defense claiming a misreading of the
statute. So the defense can argue that the NY Leg left out the language of the
MPC intentionally since it differs from the MPC.
ByNew YorkStateStatute,amistakeoflaw defensecanonlybe

foundeduponanofficialstatementofthelawcontainedinthestatute
or other enactment, or an interpretation of the statute or law by a
publicservant,agencyorbodylegallychargedorempoweredwiththe
responsibilityofenforcing/administeringthestatute.

RULE: The better and correctly construed view is that the defense should
not be recognized, except where specific intent is an element of the offense
or where the misrelied-upon law has later been properly adjudicated as
wrong. Any broader view fosters lawlessness.

Constitutional Issue
LAMBERT v. CALIFORNIA: felons moving to CA must register as such
Differs from Marrereo because this would be punishment for omission
(failure to register) not for doing something/taking your gun to the club
The court in this case says that the failure to register rose to a due process
violation
3 Concerns of the Court:
it was a mulum prohibitum offense (bad just because its prohibited,
it isnt something that one would normally know is wrong as
opposed to a murder, a crime people know in itself is bad but
failing to register you wouldnt necessarily know youre doing
something wrong)

It punished an omission; and

The duty to act was founded on a status that would not alert the
ordinary law-abiding person to the need to register
Mens Rea Issue:
CHEEK v. UNITED STATES: tax evader who didnt think salary was income.
The case turns on the mens read willfully
Cheek is not convicted
When you have a mens rea in the statute it is less likely to modify attendant
circumstance without authority of law is an attendant circumstance

HOMICIDE
CRIMINAL HOMICIDE
Common Law Murder
NYPL Muder
HOMICIDE
(Murder)
o
o
ACTUS REUS:
death of
another or
third person.

Murder was defined as the unlawful

killing of another human being with
malice aforethought
Intent to kill
Intent to cause grievous bodily
harm
Depraved-heart murder (abandoned
and malignant heart, extreme
recklessness)
Intent to commit a felony

MURDER IN THE 1ST DEGREE

SS125.27
Guilty if:
1. with intent to cause the death of
another he causes the death of such
person or third AND
a) intended victim was a police
officer who was on duty
b) victim was a peace officer or
uniformed state employee
c) or def was in prison already
d) victim was a witness
e) course of robbery, etc. felony
I. ACTUS REUS: death of another
or third person
II.MENS REA: Ideath/state

employee/police/in jai/kill
witness/hitman/
III.CAUSATION:

MPC Murder
INTENTIONAL

MURDER 210.2: criminal

homicide constitutes murder when
it:
a)it is committed purposely or
knowingly
b)it is committed recklessly under
circumstances manifesting extreme
indifference to the value of human
life. Such recklessness and
indifference are presumed if the
actor is engaged or is an
accomplice in the commission of,
or an attempt to commit, or flight
after committing or attempting to
commit, robbery, rape or deviate
sexual intercourse by force or
threat of force, arson, burglary,
kidnapping, or felonious escape.

I. ACTUS REUS: death of

another or third person.
II. MENS REA:
P/K/REI/recklessness
PRESUMED in FM

III.CAUSATION:

2ND DEGREE MURDER: Ss125.25

Person is guilty if
1. intent to cause the death of another
person, he causes the death of such
person or of a third person.
(TRANSFERRED INTENT
DOCTRINE INCLUDED)
a) except under EED
b) defs conduct consisted of
causing or aiding another to commit
suicide
2) under circumstances evincing
a depraved indifference to human
life, he recklessly engages in conduct
which creates grave risk f death to
another and causes death to another
person (you dont always have to
INTEND for them to die).
3) acting alone or with another he
commits a felony and in course of and
in furtherance of such crime causes
death of another person other than a
participant (agency) unless was not
armed, did not know others were,
didnt commit homicidal act,

MENS REA:
Ideath/RDI/defense of FM is
was careful (no gun)?????
Heat of passion (excuse offense= less

AFFIRMATIVE DEFENSES:

AFFIRMED DEFENSES: acting

DEFENSE TO
MURDER 1/2
OR MURDER

blameworthy) common law def

a)Intentional homicide done in
a sudden heat of passion;
b)caused by adequate provocation
(words are NOT enough)
c)before a reasonable opportunity to
cool (reasonable person)
d)with a causal connection btwn
prov. & act

EED which will drop it down to

1ST but not
nd
murder in 2 .
MANLAUGHTER IN THE

Common Law
Manslaughter

NYPL Manslaughter

If someone was doing something

dangerous in the first place and it
resulted in someones death, it is
manslaughter (not as bad as someone
who planned out the killing)

1ST DEGREE MANSLAUGHTER

Kirk's def: Manslaughter crimes

were crimes without malice
aforethought. There was heat of
passion of crimes, and there was
unduly dangerous to life and limb."
Manslaughter- RECKLESSNESS
(involuntary),
heat of passion (voluntary)

Ss 125.20:
Guilty when:
1. with intent to cause serious
physical injury to another, he causes
death of such person or of 3rd person
(transferred intent)
2. with intent to cause death of
another, he causes the death of such
person or of a 3rd person under
circumstances which do not constitute
murder bc he acts under influence of
EED which gives him a mitigating
circumstance.
3. being 18 years old + with intent to
cause physical injury to a person
under 11 and engages in reckless
conduct and causes death.

MENS REA: Iinjury and

causes death, EED

under EED
MANSLAUGHTER UNDER
MPC

MPC Murder
MANSLAUGHTER Ss 210.3

:
Criminal homicide constitutes
manslaughter when
a) it is committed recklessly or
b) homicide which would
otherwise be murder is
committed under the influence
of extreme mental or
emotional disturbance for
which there is reasonable
explanation or excuse. The
reasonableness of such
explanation or excuse shall be
determined from the
viewpoint of the person in
the actors situation under
the circumstance as he
believes them to be.

MENS REA: R, EED

reasonableness from viewpoint of
person in situation under
circumstances as he believes

2ND DEGREE MANSLAUGHTER:

Ss125.15 Guilty if
1) recklessly causes death of another
person
2) commits upon female abortional
act.

MENS REA: R

I.

Homicide - Setting the Stage - When Death Occurs...

Cases: People v. Eulo, pg 247, Consolidated case of two similar cases, where the
defendants shot their victims in the head and were convicted of manslaughter
a. RULE on Death: Death may nevertheless be deemed to occur when,
according to accepted medical practice, it is determined that the entire
brains function has irreversibly ceased.
b. HELD: The court found that that the jury was properly instructed, and that
they may consider the cessation of brain function as the cause of death. The
actions of the doctors may be a superseding cause, but it is not a intervening
superseding cause.

II.

Intentional Killings
Cases: State v. Guthrie, (WV), pg 256, Two men worked as dishwashers, and got
along well before murder. Def's co-worker was poking fun at him, snapped towel at
him, and flipped him on the nose, def freaked out. Def. removed knife from his
pocket, stabbed co-worker, killing him. Claims he had a panic attack.

a. RULE: In order to be convicted of first degree murder, there must be time of

consideration between the intent to kill and the actual social harm committed.
If the intent to kill happens simultaneously it is 2nd degree murder.
b. HELD: The instruction said you can immediately pre-meditate an act, the
court says the instruction of pre-meditation should be the killing is done
after a period of time for prior considerationsufficient duration for the
accused to be fully conscious of what he intended.

Lesser included offenses Doctrine:

has the right to a jury instruction upon request that he may be found guilty of an offense
included within the offense charge, as long as the fact finder could reasonably conclude
from the evidence introduced at trial that the is guilty of the lesser, but not the greater
offense.
Although a may be convicted of a lesser offense, he may not be convicted of a greater
offense, one of a more serious degree or offense than that charged

Willful - Deliberation formula: to distinguish between more and less culpable intentional
killings.

Cases: Midgett v. State (Ark 1987), pg 256, 300 pound man beats his 8 y.o. son to
death in a drunken rage.
a. RULE: Abuse of a child or intentionally killing in a drunken rage does not
constitute deliberation or premeditation, which are required elements of
murder in the first degree.

Cases: State v. Forrest (California 1987) killed his sick father, who was near
death in the hospital, by shooting him four times in the head, convicted of 1 st
degree murder, said he should have had a lesser degree because there was no
premeditation or deliberation.
o Court says there was premeditation so he gets 1st degree
o Court finds for premeditation based on the following factors:
want of provocation on the part of the deceased
the conduct and statements of the defendant before and after the
killing
threats and declarations of the before and during the course of
the occurrence giving rise to the death of the deceased
ill-will or previous difficulty between the parties
the dealing of lethal blows after the deceased has been felled
and rendered helpless
evidence that the killing was done in a brutal manner
Nature and number of wounds
What you learned from these cases:

Intent to harm is not the same as intent to cause death or premeditation.

The premeditation formulation for murder may not always be the best way to distinguish which
crimes are the most heinous.

Class Hypo:
Midgett: Child abuse -> no premeditation or deliberate -> 2nd degree murder
Forrest: mercy killing-> Premeditated and deliberated->1 st degree murder
Whats worse, the person who stabs with great precision, or the person that stabs 50 times?
The MPC doesnt distinct between 1st and 2nd. Theres also no premeditation/deliberation formula.

This is the same case in New York too.

Would Midgett be guilty of Murder 1 in NY? Probably not because there was no intent.

III

Manslaughter: "Heat of Passion" Killings

COMMON LAW PRINCIPLES:
o Difference between murder and manslaughter is the presence or absence of malice
o Facts that would mitigate murder down to manslaughter:
discovering ones spouse in the act of sexual intercourse with another
mutual combat
assault and battery

Cases: Giouard v. State (MD 1991), pg 264, Crazy army couple, wife yells, man
kills her.
a. RULE: In order to determine whether murder should be mitigated to
manslaughter we look to the circumstances surrounding the homicide and try
to discover if it was provoked by the victim:
There must have been adequate provocation;
The killing must have been in the sudden heat of passion;
It must have been a sudden heat of passion that is, the killing must have
followed the provocation before there had been a reasonable opportunity
for the passion to cool;
There must have been a casual connection between the provocation, the
passion, and the fatal act
b. Held: words alone are not adequate provocation; (unless someone says Im
going to kill you!!)

Adequate Provocation:
o Must be calculated to inflame the passion of a reasonable man and tend to cause him to
act for the moment from passion rather than reason.
SO, adequate provocation = if accompanied by conduct indicating an intention
and ability to cause bodily harm
Cooling off time:
o The provocation defense is unavailable to a who kills the victim after he has a
reasonable opportunity for the passion to cool i.e., after a reasonable person in the s
situation would have calmed down.
Justification Defense versus Excuse Defense:
o Justification: society indicates its approval of the actors conduct (i.e., self defense)
o Excuse: the admits to wrongdoing but asserts that he is not morally blameworthy for
the harm (an insane person who kills)
Soheat of passion is a partial defense that works in some way like an excuse
defense and in other ways like a justification defense.

The objective Standard - Who is the Reasonable Man?

In order for an intentional homicide to constitute manslaughter rather than murder, a defendant
must have killed in response to provocation "calculated to inflame the passion of a reasonable
man" or which "might render ordinary men, of fair average disposition, liable to acct rashly or
without due deliberation or reflection, and from passion, rather than judgment."

What is considered when looking at provocation?

s age and sex are automatically considered
NOT CONSIDERED: Characteristics that affect s capacity for self control

HEAT OF PASSION KILLINGS

Common Law: heat of passion IS a defense to intentional killings
Model Penal Code: IS a defense to not just intentional murders, but all murders according to
the definition of murders in 210.2
NYPL: adopted the MPC approach to EED but only for INTENTIONAL killings

Cases: Attorney General for Jersey v. Holley (UK 2005), pg 276, Couple get
drunk, gf says to bf that she did a dude, he kills her with an axe.
a. Rule: Drunkenness nor alcoholism is a suitable defense.
b. Held: The appeal was allowed.

Glue-sniffer v. Alcoholism Hypo the difference is that the provocation is connected to that quality. He
was taunted for being a glue sniffer its relevant. From a non-glue sniffer, its not going to matter, but to
a glue sniffer, that could set that person off. As far as the alcoholic, that wasnt a provocation no one
called him a stinking alcoholic.
Suppose I had three eyes, and someone called me a three eyed monster. Would this be provocation? Yes,
because its related to the fact I had three eyes. But is someone called me an idiot then it wouldnt be
provocation because its not related
The court does make two exceptions for the reasonable person standard: sex and age. We hold a 12 year
old to a different standard of an adult.
In the update to the law, after 1957, words could be used for provocation.
Class Tidbit...
Heat of passion vs. EED EED is broader, gets rid of the cooling off, and gets rid of the provocation.
Theres no bright line rule. It takes into consideration that rage could stew. Is a bit more understanding of
the circumstances.

MPC and Manslaughter

Cases: People v. Casassa, pg 285, Man and woman casually date. They live in the
same apartment building. Eventually told him that she was "not falling in love with
him." He kills her, claims EED.
a. Rule: Under the Model Penal Code, the EED defense has two principle
components:
1) Def must have "acted under the influence of extreme emotional
disturbance (subjective)", and
2) There must have been a "reasonable explanation or excuse for such EED.
Reasonableness of EED is determined by: the subjective internal
viewpoint of the defendant; and the external circumstances the defendant
believes them to be, whether or not they are accurate (objective).
b. Held: The excuse he gave was so peculiar to him that it was not worthy of
EED consideration.

Under MPC and NYPL

must have acted under extreme emotional disturbance [subjective]; and
There must have been a reasonable explanation or excuse for the disturbance (reasonableness
determined from viewpoint of a person in situation under the circumstances as believed them to be)
[objective]
The determination of whether there was reasonable explanation or excuse for a particular
emotional disturbance should b made by viewing:

the subjective, internal situation in which the found himself and

the external circumstances as he perceived them at the time, however inaccurate that
perception may have been and
assessing from that standpoint whether the explanation or excuse for his emotional
disturbance was reasonable, so as to entitle him to a reduction of the crime charged
from 2nd degree murder to manslaughter
Cooling off is only relevant to HOP, not EED.

Class Hypos...
What if I am a very short tempered man, should I be judged from this perspective?
One of the problems with this is that if youre an adult, you should have developed
techniques to deal with it as an adult.
What if I am on crutches and someone shoved me, and I retaliate by killing
someone with the crutches? The question is whether the shove is reasonable
provocation; its a lot different between someone who is on crutches, and someone
who is not.

Unintentional Killings: Unjustified Risk Taking

When does risk taking that results in the death of a human being become murder, as
opposed to murder?

Cases: People v. Knoller (CA), pg 296, Dogs-beasts attack woman and kill her.
Owner held responsible. Common law: Abandoned & Malignant heart
murder/implied malice.
a. Rule: Applies Phillips Test: (1) knows risk of death, (2) consciously
disregards human life.
b. Note: Express Malice is: Manifested a deliberate intention to take away the
life of a fellow creature.
c. Note: Implied malice in an unintentional killing is an actual appreciation of a
high risk that is objectively present. The act must be done with wanton
disregard to life and with a base antisocial motive and a high probability that
death will result.

State v. Williams (WA), 308, parents didnt realize how sick their baby was, baby
died, parents convicted of manslaughter
Simple and ordinary negligence failure to exercise ordinary caution one
that a reasonable person would exercise in similar conditions
NYPL says criminal negligence
MPC says criminal negligence
reasonable person standard doesnt mean there is no knowledge required.

Class Fun Facts on manslaughter, reckless murder, and grievous bodily

harm:
Difference between reckless manslaughter and reckless murder: reckless
manslaughter is the lesser extreme of recklessness, while reckless murder is
accompanied by extreme disregard for human life.

Intent to cause grievous bodily harm - this type of homicide has fallen into the
recklessness or extreme recklessness category of the MPC. The distinction

ultimate goes to the trier of fact.

Felony Murderface = Felony + Death of Human

Felony murder Common law one is guilty of murder if during the course of a felony somebody dies.
So long as the death occurred during the felony, the defendant could be guilty of murder. As a prosecutor,
they dont have to show the mens rea of the murder, but they still have to show the mens rea of the other
felony, but its still a lot easier.
NYPL: 125.25(3) thats felony murder in NY. More specific than common law. 125.27 (3) vii looks
like felony murder, but its not because murder 1 requires Intent requires the mens rea.
MPC has something similar to FM, but it requires mens rea so not quite.

POLICY Rationales for the Felony Murder Rule:

Deterrence
A doctrine to deter negligent and accidental killings during commission of felonies
Someone might think twice about the felony if they could possibly be convicted of
murder
Wrong because:
o Considerable doubt exists that serious crimes are deterred by varying the weight of the
punishment
o The rule uses the sanctions for murder to deter felonies
o It can have no deterrent effect if the felon either does not know how the rule works or
does not believe a killing will actually result
o Holmes said we should just randomly hang 1 out of 100 felons because that would be as
effective as the felony murder rule
o England got rid of the felony-murder rule in 1957, the US is one of the only countries
today that continues to use itexcept where it has been abolished in Hawaii and
Kentucky and the Michigan Supreme Court determined that there is neither statutory nor
common law felony-murder rule in the states
A theory of transferred or constructive intent
o The intent to commit a felony is transferred to the act of killing in order to find
culpability for the homicide
Thus serving the purpose of relieving the state of the burden of proving
premeditation or malice
Wrong Because:
o
o

The rule equates the intent to commit the felony with premeditation and
deliberation, specific mental stats that require proof of particular acts and
thoughts.
Retribution and General Culpability
o Retribution for underlying felony + the notion that the felon has exhibited an evil mind
justifying severe punishment
o Wrong Because:
Eliminates mens rea and goes against the modern trend of categorizing homicide
according to the degree of culpability.

Cases: People v. Fuller (CA), pg 316, Men break into van, steak tires, drive off,
chased by cops, kill driver.
a. Rule: Felony + a killing = Murder
b. HELD: Through the force of precedent, the court holds that the felonymurder rule applies and respondents can be prosecuted for first degree
murderface.

FELONY-MURDER RULE: Armed robbery, Burglary (intent to steal)

Limitations on the Felony Murder Rule

The "Inherently Dangerous Felony" Limitation
Cases: PEOPLE V. HOWARD (CA 2005) cop chases suspicious car, the runs a
red light and kills someone
ISSUE: Is the crime of driving with a willful and wanton disregard for the
safety of persons or property while fleeing from a pursuing police officer and

inherently dangerous felony for purpose of the second degree felony-murder

rule?
Court says: no, as it is not inherently dangerous

The Inherently Dangerous Felony Limitation:

o Developed as a way to limit the application of the felonymurder rule, to apply to felonies that are inherently
dangerous
o Why do this? The policy behind the felony murder rule is to
deter felonies and to make the would-be-felons more careful
so the deterrence only works if the person knows that they
are committing an inherently dangerous felony
How do we determine Inherent Danger?

The court looks to the elements of the felony in the abstract, not the
particular facts of the case, i.e., not to the defendants specific
conduct. That is we determine whether the felony by its very nature
cannot be committed without creating a substantial risk that someone
will be killed. Can you commit the felony without causing
harm/death
Felony- murder only applies to felonies that are inherently
dangerous in the abstract
To do this, you must look at the felony, and also language of the
STATUTE that defines it.
IDF RULE: If possible to commit this felony in a way that is NOT
inherently dangerous in the abstract, then cannot apply FMR.

The "Felony-Murder (Merger) Limitation

When the felony is a integral part of the homicide, the Felony murder doctrine is
limited. Why? Because the jury would never get to consider malice aforethought.

Ireland Case: husband and wife arguing, husband pulls out a gun and shoots the wife
the felony in this case was assault with a deadly weapon so almost any killing
you can charge assault with a deadly weapon so it could apply to almost every
homicide case to make it felony-murder so we need to come up with a limitation so
it doesnt make every single killing a murder charge.

MERGER RULE POLICY: premised upon the concern that it would subvert the
legislative intent for a court to apply the felony-murder rule automatically to elevate
all felonious assaults resulting in death the second degree murder even where the
felon does not act with malice.
manslaughter or assault with a deadly weapon that cannot be the basis for
felony murder.
merger doctrine does not apply when death results from defendants
commission of a felony with an independent felonious purpose, that is, when
the felony that provides the basis for the felony-murder conviction was not
done with the intent to commit injury which would cause death
Merger doctrine applies (felony murder does not apply) IF:
the felony is integral part of the homicide; AND
no independent felonious purpose
assaultive child abuse
****Merger doctrine applied to manslaughter, assault
with a deadly weapon, burglary with intent to commit

assault with deadly weapon, burglary with intent to

assault 3rd person, child abuse of assaultive

Class Hypo:
Theres an exception to when the FM rule still applies the felony is committed with an independent,
felonious purpose. The example gives armed robbery. You could argue that its an integral partwe
should exclude that because its integral, but the court says no, because theres another purpose to that
felony, to take money, so we allow it to be the basis of felony murder.

Cases: People v. Smith (CA), pg 334, Mother abuses 3 yo, kills her during
beating. Gives us MERGER DOCTRINE.
a. RULE: Second degree felony-murder instruction may not properly be
given when it is based upon a felony which is an integral part of the
homicide and which the evidence produced by the prosecution shows to
be an offense included in fact within the offense charged.
b. HELD: FM doctrine does not apply to acts that are integral felonies.

A felony that falls within one of the limitations would not fall within the
other because each limitation eliminates felonies at opposite ends of the
dangerousness spectrum.

Res gestae doctrine one of the requirements is that the FM rule must happen during the felony.
There has to be a time distance and causal. So if I steal a car, then two weeks later hit a
pedestrian that probably wont be FM.

Two approaches the courts has taken when the killing has been caused by a third party:
Agency Approach doesnt apply if the person who causes the death is a non-felon. Must be
done by a felon (a, b, c commits a crime, a kills d, all 3 can be guilty).

Cases: State v. Sophophone (KA), pg 338, D and 3 others break into house, get
spooked, run away, cop shoots one of the felons. D charged with FM - really?
a. RULE: Agency: The felony-murder doctrine does not apply if the person
who directly causes the death is a non-felon.
b. HELD: the acts of a non-felon cannot be applied to the felon.

The proximate causation approach - felon may be held responsible for the death by a non-felon
if theres a causal link.
NYPL -125.25 - does NY follow the agency approach or the proximate cause approach? Yes
for proximate causation, a broader version: 125.25 (3) Lists felonies that the rule applies in,
proximate approach defendant causes the death of a person other than one of the
participants so victim cannot be a co-felon.
NY provides an affirmative defense, if the Felons were really really careful. Then theres a
narrow defense. MPC (210.2((1) b) allows for a defense for Felons who are really really
careful too.

Rape
Overview
Historically there was a problem with rape and requiring resistance on the
part of the victim, something that doesn't exist with other crimes. Almost
40% of rape is from an acquaintance. One of the most progressive
approaches is the State of New Jersey.
Common law made an exemption for rape called marital immunity theres
no such thing as raping your wife. MPC 213.1 retained marital immunity.
One of the justifications was that it was just too difficult to proveand there
was a need to preserve marriage.
One of the drastic changes was dealing with marriage immunity, 42 states
still had this immunity. 1989, it flipped, 42 states allowed for marital rape
NY doesnt generally allow for marital immunity for 1 st degree rape. There
are small exceptions such as disability or age (how is that immunity?)
There is no mens rea in the statute, but the court of appeals has read in the
mens rea term INTENT.

Forcible Rape - The Resistance Requirement

Cases: Rusk v State, Court of Special Appeals of Maryland,
1979, pg 411
a. Rule: When considering a motion to acquit, the court must
first determine that there is legally sufficient evidence for the
jury to find the victim was reasonably in fear.
b. HELD: The court found that there was insufficient
evidence to determine that P was in reasonable fear. When
she testified that she reflected on what happened in her car,
the jury may consider that against her, since if she was
unsure they probably would be as well.
"No" (or the absence of "Yes") as "Force"?

Cases: State of NJ in the Interest of MTS, Supreme Court NJ

1992, pg 434
a. Rule: Any act of sexual penetration engaged in by the
defendant without the affirmative and freely given
permission of the victim to the specific act of penetration
constitutes the offense of sexual assault.
b. HELD: The NJ Supreme Court holds that any act of sexual
penetration engaged in without the affirmative and freelygiven permission of the victim to the specific act of
penetration constitutes sexual assault, as it satisfies the
definition of physical force under New Jersey law.

Mens Rea

Cases: People v. Williams, SCOCA, 1992, pg 453

a. Rule: There must be substantial evidence of equivocal

conduct warranting an instruction on reasonable and good
faith mistake of fact as to consent to sexual intercourse.
b. HELD: There was no equivocal ground to grant the
mistake of fact defense.
Rape Shield Laws State v. Herndon, WI, 1988
The sixth amendment of the US Constitution grants a defendant a
fair trial by providing him with the right to cross-examine all
witnesses against him.
Rape shield laws have been enacted by every state. They are
designed to deny a defendant in a sexual assault case the
opportunity to question a victim about her previous sexual history.
Here is the underlying policy:
1. The law prevents the defendant from harassing and
humiliating the complainant with evidence of either her
reputation for chastity or of specific prior sexual acts.
2. This type of evidence generally has no bearing on whether the
complainant consented to the sexual conduct with the
defendant at the time in question.
3. The exclusion of the evidence keeps the jury focused only on
the relevant issues at hand.
4. Promotes fair law enforcement because the victim with more
readily report and testify in sexual assault cases if she does
not fear her history will be brought up.
There is give and take on both sides - from the 6 th amendment and
fro the rape shield laws. On one hand, the victims rights cannot be
violated so the 6th amendment has to bend. But of the victim and the
defendant had a previous sexual history, the rape shield law must
bend in the opposite direction.

RAPE

MPC 213.1
(1) Rape. A male who has sexual
intercourse with a female not his
wife is guilty of rape if:
a) he compels her to submit by force or
by threat of imminent death, serious
bodily injury, extreme pain or kidnapping,
to be inflicted on anyone; or
b) he has substantially impaired her
power to appraise or control her conduct
by administering or employing without
her knowledge drugs, intoxicants or other
means for the purpose of preventing
resistance; or
c) the female is unconscious; or
d) the female is less than 10 years old.
And
i) in the course thereof the actor inflicts
serious bodily injury upon anyone, or
ii) the victim was not a voluntary social
companion of the actor upon the

Rape 1st Degree Ss130.35

English Common Law Definition:
A person is guilty of rape in
unlawful carnal knowledge of a woman
the 1st D when he or she
without her consent forcibly against her
engages in sexual
will by fear.
intercourse with another
person
By forcible compulsion;
or
Who is incapable of consent Common
by reason
law definition: Rape is "the
of being physically helpless;
carnal or
knowledge of a woman forcibly
Who is less than 11 yrs
and against her will" (utmost resistance?)
old; or
Who is less than 13 yrs
old and the actor is
18 yrs old or more
Before rape law reform, issue of
NO MENS rea for rape in 1st
mens rea rarely arose and actus
degree. The courts read one
reus proves mens rea. If male
in!!!!!! NY reads in
used or threatened force to
intentionally! Here, treat as if
obtain intercourse, then it was
a general intent crime so
evident that he purposely or
negates it only if it is
knowingly had nonconsensual
reasonable.
relations. If his conduct was not

occasion of the crime and had not

previously permitted him sexual liberties,
in which cases the offense is a felony of
the 1st degree.
Rape is usually a 2nd degree FELONY
unless actor inflicts serious bodily
injury upon anyone or the victim and she
was not a voluntary social companion of
the actor upon the occasion of the crime
. And had not previously permitted him
sexual liberties in which cases the
offense is a felony of the 1st degree.
MARITAL IMMUNITY!
MALE specified

ACTUS REUS: sexual intercourse with

female when compels her to submit
by force or threat, impairs.

NO MENS REA: general rule is

that if a def entertains a
reasonable belief that victim
voluntarily consented to
engage in sexual intercourse
he does not possess the
wrongful intent that is a
prerequisite.

NO MARITAL IMMUNITY!
Gender Neutrality

ACTUS REUS: engages in

sexual intercourse with
another by forcible
compulsion.

NO MENS REA
COURT READS IN:
INTENTIONALLY

forcible, the female had to resist,

and gave male reasonable
warning of lack of consent. If he
proceeded, a jury could
reasonably assume that he knew
she did not want to have sexual
relations. At a minimum,
resistance meant that male
acted recklessly and negligently.
Rape has always been
considered a most serious crime,
one that traditionally carried the
heaviest penalty. Little attention,
until recently, was placed on
how rapes occur, how they can
be prevented and how a victim
should best protect herself when
an attack seems inevitable, due
t the taboos and myths of a
Victorian age.
In sherry def sought instruction
that he couldnt be convicted
unless he had actual knowledge
of the victims lack of consent.
No precedent for this
instruction!!
Massachusetts makes it a strict
liability crime (similar to
statutory rape ) where went
from reasonable that even if it is
it is doenst negate mens rea.
ALSO, 6TH amendment right of
def to confront accuser meant
could admit evidence about
victims prior sex life.

Differences
btwn MPC and
NYPL

MPC doesn't require resistance (its silent)

NYPL has degrees, focus on 1st degree.
NYPL doesn't require resistance
NYPL doesn't have marital factor, MPC
does.
NYPL has both pronouns, MPC has MALE
NYPL Rape 1 needs "forcible compulsion"
and Rape 2 and Rape 3 doesn't need it.
(Rape 2 and 3 are age related)
Intent is the mens rea read into 1st D rape
and Deviant sexual behavior
(the focus will be on NYPL in rape)

Rape Shield

Rape defenses:

Rape 2nd Degree Ss130.30

A person is guilty of rape in
the 2nd D when:
a)over 18yrs old he or she
engages in sexual
intercourse with another
person less than 15 years
old; or
b)He or she engages in
sexual intercourse with
another person who is
incapable of consent by
reason of being mentally
disabled or mentally
incapacitated.
ACTUS REUS: engages in
sexual intercourse NO
FORCE! AGE AT ISSUE

NO MENS REA
COURT READS IN:
INTENTIONALLY
It shall be an affirmative
defense to the crime of rape
in the 2nd D that the
defendant was less than 4
years older than the victim at
the time of the act.
Rape Shield Law Ss 60.42

Law

Mistake of fact (re consent), requires that

accused act in good faith and with
reasonableness. Whether a reasonable
good faith mistake of fact as to the fact
of consent is a defense of the crime of
rape. No American court recognizes
mistake of fact without consideration of
its reasonableness as a defense (pg 445)
Some jurisdictions (like MASS ex. Sherrydoctors case) rape is strict liability. In all
Statutory rape is a strict liability crime
with No defense rule for statutory rape
cases bc strict liability. No mens rea
needed.

Rule of evidence;
admissibility of evidence of
victims sexual conduct in
sex offense cases
Evidence of victims sexual
conduct shall NOT be
admissible in a prosecution
UNLESS:
a)proves specific instances of
victims prior sexual conduct
with accused
b)proves that victim has
been convicted of
prostitution
c)rebuts evidence introduced
by people of victims failure to
engage I sexual intercourse,
deviate sex intercourse or
sexual contact
d)rebuts evidence introduced
by people which proves
accused is cause of
pregnancy or disease or
source of semen in victim
e)determine to be relevant
NY HAS A FEDERAL
APPROACH
1) A general prohibition of sexual
conduct or reputation evidence
2) exceptions allowing for this
evidence in circumstances where the
evidence is undeniably relevant to an
effective defense
3) A general "catch basin" provision
allowing for the introduction of
relevant evidence on a case by case
basis.
However there are exceptions.
- if convicted of prostitution in the
past then it is admissible
- if prosecution brings it up, then its
admissible
- the court will make the
determinations in certain cases as to
when they will allow admission.
4 POLICIES BEHIND RAPE
SHIELD
1) Prevents defendant from harassing
and humiliating the victim
2) There is no bearing on whether
the complainant consented
3) The jury stays focused on the
issues and prevents them from
jumping to conclusions
4) Affective law enforcement,

encourage women from coming.

Sexual
misconduct
(NY)

Sexual Misconduct: Ss
130.20
A person is guilty of sexual
misconduct when:
1. He or she engages in
sexual intercourse with
another person without
such a persons consent;
or
2.He or she engages in oral
or anal sexual intercourse
with another person without
such persons consent; or
3. He or she engages in
sexual conduct with an
animal or a dead human
body.
ACTUS REUS: engages in
sexual intercourse or
deviate intercourse
without consent NO
FORCE!!

Criminal
sexual act in
1st degree
(formerly NY
oral and
sodomy
crimes)

Criminal Sexual act in 1st

degree
Ss130.50(Formerly oral
and SODOMY SEX
CRIMES):
A person is guilty of criminal
sex act in 1st when he or she
engages in oral sexual
conduct or anal sexual
conduct with another
person;
1. by forcible compulsion or
2. who is incapable of
consent by being physically
helpless
3. under 11
4. under 13 and actor is over
18.
ACTUS REUS: engages in
ORAL sexual intercourse
or ANAL sexual conduct
by force!!

General Defenses to Crimes

Categories of Defenses

Failure of Proof Defense

o Negation of an element required by the definition of the offense
o Mistake of fact - prevents the state from proving the required mental state (if
knowledge is the level of culpability required).
o Lecture: Basically the prosecution failed to prove any element. In a sense thats a

defense because you wont get convicted.

Offense Modifications (not discussed)
o They apply even where all the elements of the offense are satisfied
o However, he has not in fact caused the harm or evil sought to be prevented by the
statute defining the offense.
Example: parents pay a ransom.
Example: Businessman pays extortion payments to racketeer.
Justifications
o The act committed is still a social harm the statute looks to prevent.
o However, the act is done to prevent an even greater harm.
Example: an actor burns down a corn field to serve as a firebreak between an
unsuspecting town and a raging fire. He still committed arson, but it's all good.
Lecture: Heat of passion defense. Has both elements, and that it requires
provocation, and theres a connection to that provocation, gives some
justification.
Excuses
o Like justifications, excuses are defenses to acts that occur even though a social harm
against a statute has been committed.
Example: a paranoid delusional person smacks a mailman over the head
because she believes he's come to insert a radio receiver.
Lecture: Person wasnt acting free will. EED could fall under this category.
Doesnt have a provocation element so it kinda falls under excuse.

Burden of proof
Two burdens of Proof In Criminal Law
1) Burden of production
This falls on the prosecution, who has to prove the elements of the crime. The
standard is low, but someone must first raise it to bring it into the case.
2) Burden of Persuasion
This falls on the defendant, the burden of affirmative defense.

Cases: Patterson v. New York, SCOTUS, 1977, pg 486

a. ( saw his estranged wife, Roberta with ex-fianc Northrup Patterson
borrowed a gun, went to Roberta who was with Northrup and shot Northrup
in the head, twice. Patterson was charged with 2 nd degree murder, for
which the affirmative defense of EED is available)
a. Rule: Burdening a defendant with proving the affirmative defense of
extreme emotional disturbance does not violate the Fourteenth
Amendment to the United State Constitutions (Constitution) Due Process
Clause.
b. HELD: 2nd degree murder intent to cause death, and causing the
death of another. Affirmative defense that Def acted under EED. If he cant
prove EED then he loses. Mulany -> murder killing w/malice aforethought.
Malice Aforethought and deliberate cruel act committed by one person
against another suddenly without considerable provocation. HOP requires
sudden provocation this disproves the malice aforethought. The two are
incompatible.

Principles of Justification
All justification defenses have a triggering condition -> necessary & proportional
response

o
o
o

Trigger: aggressive threat

2 requirements: necessary to protect & proportional & reasonable.
Necessary requirement: act only to extent necessary to protect interest.
Proportionality: places limit.
If A unlawfully threatens B, B can push him away. But he cannot push in
into oncoming traffic in common law. He must suffer the assault.

Self Defense
General Principles
Cases: United States v. Peterson, US Court of Appeals, 1973, pg. 500
a. Guy tries stealing windshield wipers, dude comes out an blows him
away.
b. Rule: Self-defense is not an available defense to (1) one who provokes
conflict or is the aggressor in it or (2) one who does not retreat if he can
safely do so.
c. HELD: The right to use deadly force in self-defense is only available as a
last resort to those who cannot safely escape and did not initiate the deadly
circumstances.
Reasonable Believe Requirement
Cases: People v. Goetz, Court of Appeals, 1986, pg. 510
a. Rule: A person may use deadly force in self-defense if he reasonably
believes that said force is necessary to protect himself.
b. HELD: Allowing a person to justify his conduct by self-defense simply
because he personally believes that his actions are justified cannot be a
result the legislature intended. This would allow any person, no matter how
delusional, to kill at will if he believes his actions are justified. Therefore,
reasonableness must be determined based upon the circumstances
facing a defendant.
"Reasonable Person Standard - Obj, sub, or mixed?
Cases: State v. Wanrow, SCOWA, 1977, pg. 525
a. Strange situation where child molester is invited into home only to be
blown away by def.
b. Rule: The justification of self defense is to be evaluated in light of all the
fact and circumstances known to the defendant, including those known
substantially before the killing.
c. HELD: The trial court's jury instructions were a violation of the
defendant's EP rights. The jury instructions should include all the
circumstances surrounding the killing.
Battered Women
Cases: State v. Norman, Court of Appeals, NC, 1988
a. Long history of sadistic abuse. Blows away husband while he sleeps.
b. Rule: Under certain circumstances, killing of a passive victim does not
preclude the defense of self-defense.
c. HELD: Subjectively, it's understandable, objectively, it's not known whether an ordinary
person would react that way - it's for a jury to decide.

Cases: State v. Norman, Supreme Court of North Carolina, 1989

a. Rule: The right to kill in self defense is based on the necessity, real or
reasonably apparent, of killing an unlawful aggressor to save oneself from
imminent death or great bodily harm at his hands.
b. HELD: The court only looked at the imminent threat of death - not the 20
years of abuse.

Defense of Other
Cases: People v. Kurr, Court of Appeals of Michigan, 2002
a. Pregnant def kills bf with a knife because he punched her in the
stomach.
b. Rule: The defense of others should be extended to the protection of a
fetus, viable or non-viable, from an assault against the mother.
c. HELD: Unborn fetuses protected from assault, DP rights deprived, new trial warranted.
Defense of Property
Cases: People v. Ceballos, SCOCA, 1974
a. Man claims things robbed in garage, sets up mechanical gun, nails kid in face.
b. Rule: A person is not justified in using deadly force to protect his
property from burglary.
c. HELD: Burglary may be one of the crimes where deadly force may be
used, but a lot of the times it is not. The kids didnt present any kind of
threat. Also, even if he was home at the time, its dubious he would have
had the right to use deadly force.

Necessity ("choice of evils")

General Principles
Cases: Nelson v. State, SCOAL, 1979 imminent
a Trucks stuck in mud, steals big trucks to dislodge, claims necessity.
b. Rule: To invoke the defense of necessity, the crime committed must have
been done (i) to prevent a significant evil; (ii) there was no legal alternative
and (iii) the harm caused was not disproportionate to the harm avoided.
c. HELD: Subjectively, it may have been a necessity, but there was no danger, and
objectively, the situation was harmless.

Defense to Murder
Cases: The Queen v. Dudley and Stevens
a Shipwrecked at sea, they eat the young boy to stay alive. Is killing
ever justified even in extreme circumstances?
b. Rule: To preserve one's life is generally speaking a duty, but it may be
the plainest and highest duty to sacrifice it.
c. HELD: "It is not suggest that in this particular case the deeds were
devilish", but it is quite plain that such a principle once admitted might
be made to legal cloak for unbridled passion and atrocious crime.

Principles of Excuse
Duress
General Principles
Cases: US v. Contento-Pachon, US Court of Appeals, 9th Circuit - 1984
a Def claims he was forced to swallow 129 balloons of cocaine to save family. Caught
entering US, claims duress.
b. Rule: Elements of Duress: 1) an immediate threat of death or serious
bodily injury, 2) a well-grounded fear that the threat will be carried out, and
3) no reasonable opportunity to escape the threatened harm.
Necessity: Defense is available when a person is faced with a choice of
two evils and use then decide whether to commit a crime or an
alternative act that constitutes a greater evil.
c. HELD: necessity is used when the defendant acts in the interest of the

general welfare. In this case, it cannot be said Def acted in societies best
interest. Duress is up to the jury.
Defense to murder?
Cases: People v. Anderson, SCOCA, 2002, pg. 597
a. Def killed victim bc the father had suspected that the victim was
molesting two girls. Defendant claims he killed the victim because the
father threatened to "beat the shit out of [him]" if he failed to do so.
b. Rule: Duress is never a defense to murder, nor can it reduce the charge
of murder to manslaughter.
c. HELD: Duress is not a defense reducing murder to manslaughter, could be used in gang
defense.
Intoxication
Cases: US v. Veach, US Court of Appeals 6th CT. 2006, pg. 603
a Drunken def threatens to kill Park Rangers.
b. Rule: Intoxication, whether voluntary or involuntary, may be considered
as a defense to a specific intent crime.
c. HELD: Def should have been able to bring up defense of intoxication at trial. Reversed up to jury to decide.
Insanity

Defense
SelfDefense/Defense
of Others
(NON DEADLY)

for all??!
Battered
womens
syndrome: goes
to the
reasonable
belief element
of self-defense,
evidence
presented to
show
defendants
belief of
imminent harm
to be
reasonable.

MPC
Use of force in self
protection Ss3.04
Justifiable when
actor believes that
such force is
immediately
necessary for the
purpose of
protecting himself v.
the use of unlawful
force by such other
person on the
present occasion.
Limitations = not
justifiable if to
resist arrest, even
if arrest is
unlawful to resist
person using
force to protect
his own property.

IMMEDIATELY
NECESSARY

NYPL
35.15 Self
Defense .May use
physical force when
and to extent he
reasonably
believes :
1. to be necessary
to defend self and
third person..
2. from use or
imminent use of
unlawful physical
force by the other
person.
SELF DEFENSE
(NON-DEADLY) IS
NOT JUSTIFIABLE IF:
a) Other person was
provoked by the
defendant with
intent to cause
physical injury to
another; or
b)Defendant was
the initial
aggressor;
however, initial
aggressor may use
defense if he has
withdrawn and
effectively
communicated that
he withdrew to the
other person but
other person
persists

common law

Necessity. Actual or
apparent threat of use
of force, unlawful and
immediate threat.
Initial aggressor
doctrine: If aggressor,
you must withdraw and
communicate
withdrawal before self
defense is available.
Castle doctrine if in
your home you dont
have to retreat
Alter ego doctrine: can
protect another if that
person would have had
right to self-defense.

And use
SUBJECTIVE
TEST OF
REASONABLE
BELIEF

Self-Defense
(Deadly)

No deadly force
allowed unless
believes its
necessary to protect
self against death,
serious bodily harm,
kidnapping, or
sexual intercourse
compelled by force
or threat.
Cannot be provoker
of the use of force
against you.
Have to retreat if
you can (except if in
own home or place
of work)
Ss3.05 MPC: Use of
Force for Protection
of other persons
Justifiable IF actor
would be justified in
same situation to
protect himself, and
that other person
would be justified to
se self-defense

IMMINENT
FORCE
And use
objective test
(GOETZ)
Goetz argues for selfdefense in a subjectively
whether his life was in
danger that the statute says
he reasonably believes.he
points to the MPC which
doesnt have HE so the
legislature must have
purposely put HE in there
meaning it is a subjective
standard.
Prosecutor is looking at
objective, reasonable
standard; he used excessive
force
(pg500)
brings in knowledge with
that person, the physical
characteristics of the
parties, his prior
experiences.
He was acquitted and
released from jail after 8
months. Jurors looked as an
excuse defense.
Is the reasonableness
standard a good standard?
Should someone who
actually believes she is in
danger should have selfdefense? Most jurisdictions
say no, bc look at subjective
and objective.
Cannot be DEADLY
FORCE unless
SAME AS ABOVE
BUT ALSO HE
reasonably believes
a)other person is
using or is about to
use deadly physical
force,
i) and def knows
can with complete
safety as to himself
and others avoid the
necessity of using
deadly physical force
by retreating
(RETREAT
DOCTRINE) unless
he is in his own
dwelling and is not
the initial
aggressor, or is a
police officer.
b) if he reasonably
believes the other
person is
committing, or
attempting to
commit a
kidnapping, forcible
rape, forcible
sodomy, or robbery.

JUSTIFICATION: use of
physical force in defense
of person in course of
burglary (NY Ss35.20)
Person when reasonably
elieves such to be
necessary to prevent or
terminate commission or
attempted commission of
crime to damage premises.
May use any degree of
physical force, other than
deadly, which he
reasonably believes
necessary and ay use
deadly physical force if he
reasonably believes such
to be necessary to prevent
commission of arson.
A person if in control of
building!

(alter-ego rule)

c)or that such other

person is committing
or attempting to
commit burglary and
the def is in control
of the building.

Defense of
property

Use of force in
LAW
ENFORCEMEN
T
Justification
defense

3.06 use of force for

the property
justifiable if actor
believes that force is
immediately
necessary to
prevent or terminate
an unlawful entry or
other trespass or
unlawful carrying
away of property.
Have to ask them to
desist first unless
believe request to
be useless, or
dangerous, or
substantial harm will
occur before
request. Deadly
force only justifiable
if person is
attempting to
commit arson,
burglary, robbery or
other felonious theft
or property
destruction and has
employed or
threatened deadly
force.
MPC: requires
ASKING TO
DESIST AND ADDS
THAT PERSON
HAS EMPLOYED
OR THREATENED
TO USE DEADLY
FORCE.
Ss3.07 use of force in law
enforcement.
Can use force to effect an
arrest. Cant use deadly
force UNLESS arrest is for a
felony, and actor believes
that employing such force
would NOT risk injury to
innocent persons, and the
actor believes the crime
involved the use or
threatened use of deadly
force, or substantial risk
that the person arrested will
cause death or serious

Battered woman
kills husband in
self-defense.
Defense:
argument is that
she reasonably
and actually
believed that her
life was in
imminent
danger .

Ss35.20 reasonable
belief that someone
will damage your
property, can use
physical force. Can
only use deadly
physical force to
prevent or terminate
commission or
attempted
commission of
arson, burglary.

NYPL 35.30
Police officers use of
physical force is okay to
prevent an escape of a
person reasonably believed
to have committed an
offense.
Can only use deadly force
when person committing a
felony involving use or
attempted use or
threatened imminent use of
physical force vs. a person,
or kidnapping, arson, escape

Whatever force is
necessary to
effectuate arrest, for
felonies, could use
deadly force, since
almost all felonies
were punishable by
death.
Tennesee v. Garner:
SC limits use of
deadly force to felony

bodily harm.

Necessity (guy
who stole
tractor)
Justification
defense
Is it allowed for
murder in MPC
and NYPL?
NECESSITY DEFENSE IS
INAPPLICABLE TO CASES
INVOLVING INDIRECT CIVIL
DISOBEDIENCE.

3.02 Choice of Evils

conduct that actor believes
to be necessary to avoid
harm or evil to himself or
another is justifiable IF:
a)the harm or evil to be
avoided is greater than that
sought to be prevented by
the offense charged;and
b)neither the Code nor other
law defining offense
provides exceptions or
defenses dealing with the
specific situation involved;
and
a legislative purpose to
exclude the justification
claimed does not otherwise
plainly appear (cant be
reckless or negligent bc
then justification
unavailable.)

the necessity and

justifiability of such conduct
may not rest upon
considerations, pertaining
only to the morality and
advisability of the statute,
either in its general
application or with respect
to its application to a
particular class of cases
arising therunder.
Whenever evidence relating
to the defense of
justification under this
subdivision is offered by the
def the court shall rule as a
matter of law, whether the
claimed facts and
circumstances would, if
established constituted a
defense.

in the 1st degree, burglary in

first, or any attempt to
commit such a crime, or if
person armed and had
attempted or committing
felony or if necessary to
defend from use or
imminent of use of deadly
physical force.
NY statute: 35.05 (2)
JUSTIFICATION
Conduct is justified if it
a)necessary as an
EMERGENCY measure
b) to avoid an imminent
public or private injury
which is about to occur.
c)is no fault of the actor.
d) and which is of such
gravity that according to
ordinary standards of
intelligence and morality,
the desirability and urgency
of avoiding such injury
clearly outweigh the
desirability of avoiding the
injury sought to be
prevented by the statute
defining the offense in issue.

and probable cause

of danger plus
necessary to stop
escape.

***NEVER
ALLOWED FOR
MURDER***

Further:
The necessity and
justifiability of such conduct
may not rest upon
considerations, pertaining
only to the morality and
advisability of the statute,
either in its general
application or with respect
to its application to a
particular class of cases
arising thereunder.
Imminence!
Whenever evidence relating
to the defense of
justification under this
subdivision is offered by the
def, the court shall rule as a
matter of law, whether the
claimed facts and
circumstances would if
established constitute a
defense.

MPC: Doesnt require

imminence! But NYPL
DOES!!!
Common law mistake of fact:
General intent crimes: negates if
reasonable.
Specific intent crimes: if it
negates specific intent required.
(here, knowledge)
Strict liability: never a defense of
mistake of fact.

Mistake of fact

DURESS

Section 2.09 duress

Affirmative defense

Ss40.00 Duress:
A) in any

Commonlaw: def may be

acquitted of offense (NOT

(excuse)
Policy: condemnation
of coerced actor is
bound to be an
ineffective threat,
what is however more
significant is that it is
divorced from any
moral basis and is
unjust. No deterrence.

if :
a) actor engaged in
conduct charged to
constitute an
offense bc he was
coerced to do so by
use of or threat of
unlawful force
against his person
or another that a
person in reasonable
firmness in his
situation would have
been unable to
resist.
b)defense is
UNAVAILABLE IF
actor recklessly
placed himself in
situation which it as
probable that he
would be subjected
to duress. Defense
is unavailable if he
was negligent in
placing himself in
such a situation
whenever
negligence suffices
to establish
culpability for
offense charged
c)it is Not A
DEFENSE if a woman
acted on command
of husband unless
act of coercion

prosecution for an
offense, it is
affirmative defense
that def engaged in
proscribed conduct
bc he was coerced
to do so by the use
or threatened
imminent use of
unlawful physical
force upon him or a
3rd person which
force or threatened
force of
unreasonable
firmness in his
situation would have
been unable to
resist.
b)defense is not
available when a
person
INTENTIONALLY or
recklessly places
himself in a situation
in which it is
probable he will be
subject to duress.

MURDER) on basis if he
pleads and proves that
(another person)
unlawfully threatened
imminently to kill or
grievously injure him or
another person; and he
was not at fault in
exposing himself to the
threat. (pg 582)

Does not allow

duress defense to
intentional killing

IMMINENCE
REQUIREMENT
DOESNT EXCLUDE
POSSIBILITY OF
DURESS DEFENSE
FOR MURDER

DOESNT EXCLUDE
POSSIBILITY OF
DURESS DEFENSE
FOR MURDER

Differences
btwn
necessity and
duress

Intoxication(m
ust be
voluntary)
(excuse
defense)
Not
affirmative
defense, but
negates mens
rea

Necessity has
COERCION of
physical acts of
nature not human
forces. Necessity is
balancing test of
choice of evils
Necessity NEGATES
actus reus
Necessity is
JUSTIFICATion(condu
ct socially
acceptable)
Ss 2.08 Defense
ONLY if it negates
element of crime.
a)if recklessness is
element of offense
and due to selfinduced
intoxification, actor
is unaware of risk
the unawareness is
immaterial.

DURESS has
coercion of human
forces.
Duress has threat of
IMMEDIATE harm
Duress focuses on
MENS REA
Duress is EXCUSE
defense (conduct
NOT socially
acceptable, but
person is not morally
blameworthy)
Ss 15.25
Intoxication is NOT a
defense to a criminal
charge UNLESS
evidence of
intoxication is
relevant to negate
an element of the
crime charged.
Recklessness can
still be established
even if there is
unawareness due to
voluntary
intoxication.

Involuntary intoxication
when def is unexpectedly
intoxicated due to
ingestion of a medically
prescribed drug. If doesnt
form mens rea.
Is temporarily insane
and entitled to acquittal of
any offense. Not insanity,
however.
INTOXICATION CANNOT
NEGATE NEGLIGENCE

Insanity
(excuse
defense)

Ss 4.01 (1) a person

is NOT responsible
for criminal conduct
IF at the time of
such conduct as a
result of mental
disease or defect he
lacks substantial
capacity either to:
a)appreciate the
criminality
(wrongfulness) of his
conduct OR
b)to conform his
conduct to the
requirements of the
law.
MORE BROAD THAN
MNAGTEN TEST
(REAGAN)
UNDERSTANDING,
NOT JUST LIMITED
TO KNOWING CAN
TAKE INTO
ACCOUNT
APPRECIATION,
ADDS VOLITIONAL
COMPONENT

Ss 40.15 SIMILAR
TO FEDERAL, LIKE
MNAGHTEN TEST
it is an affirmative
defense that when
the def engaged in
conduct, he lacked
criminal resp. by
reason of MENTAL
DISEASE OR DEFECT
meaning At time of
such conduct as a
result of mental
disease or defect,
the defendant
lacked substantial
capacity to know or
appreciate either
a)nature and
consequences of
such conduct
b)that such conduct
was wrong.
ANTI PERSONALITY
DISORDER IS
EXCLUSDED FROM
INSANITY DEFENSE!

Federal Insanity
Defense Reform
Act of 1984: 18
USC Ss17 SIMILAR
TO MNAGHTEN
TEST!
At the time of the
commission of the
acts, the def as a
result of severe
mental disease or
defect, was unable
to appreciate
a)the nature and
quality or
b)the wrongfulness
of his acts

abandonment is an
affirmative defense. It
acknowledges an
actus reus and that it
is a defense

IRRESISTIBLE IMPLUSE
TEST insanity defense if
EITHER:
a)such mental defect as to
render the def unable to
distinguish btwn right and
wrong in relation to the
particular act; or
b)the overmastering of
defs will in consequence
of the insane delusion
under the influence of
which he acts, produced
by disease of the mind or
brain (though a person
abstractly knows that a
given act is wrong, he is
yet, by insane impulse,
irresistibly driven to
commit it.)
DURHAM/PRODUCT
TESTAn accused is not
criminally resp if his
unlawful act was the
product of mental disease
or mental defect.

Rotten social
background

Defense of
Attempt
Crimes

Insanity Tests:
MNaghten Test to
establish insanity, it must
be clearly proven that, at
the time of the committing
of the act, accused was
laboring under such a
defect of reason, from
disease of the mind, as
a)not to know the nature
and quality of the act he
was doing or
b)if he did know it, that he
did not know that what he
was doing was wrong (ALL
of nothing approach, need
TOTAL incapacity to get
defense)

Irresistible impulse is
from socially and
economically deprived
childhood. NO
JURISDICTION
recognizes criminal
defense based on this.
Abandonment
It is an affirmative
defense that, under
circumstances
manifesting a
voluntary and
complete
renunciation of
criminal purpose,
the def avoided the
commission of the
crime attempted by
abandoning his
criminal effort, and
if mere
abandonment was

RenunciationSs40.10
a) 1. in any prosecution
pursuant to Ss110.00 for an
attempt to commit a crime
affirmative defense that
under circumstances
manifesting a voluntary and
complete renunciation of his
criminal purpose, the def
avoided the commission of
the crime attempted by
abandoning his criminal
effort and, if mere
abandonment was
insufficient to accomplish
such avoidance, by taking
further and affirmative steps

Abandonment
doesnt exist at
common law????
Solicitation: has to
be communicated.
Merger doctrine
applies: can't be
convicted of both
solicitation and
completed crime.

insufficient to
accomplish such
avoidance, by taking
affirmative steps
which prevented the
commission therof.
Merger applies:
cannot be convicted
of SOLICITATION
AND COMPLETED
CRIME.

which prevented the

commission thereof.
5. a renunciation is NOT
voluntary and complete
within the meaning if it is
motivated in whole or in
part by a belief that
circumstances exist which
increase the probability of
detection or apprehension of
the defendant or another
participant in the enterprise
or to postpone the conduct
until another time or to
transfer the criminal effort
to another victim or another
but similar objective.
MERGER DOES NOT
APPLY CAN BE
CONVICTED OF
SOLICITATION AND
COMPLETED CRIME.

Inchoate Offense
Attempt
Mens Rea
People v. Gentry Hes charged with reckless murder. What is
the importance of this case? Lets say I fired off a gun to show off
my blindfold skills, but hit Russ in the arm.
Could I be charged with attempted murder? No, because theres no
such thing as attempted reckless murder. Either you had the intent
to kill, or you didnt. You must have intent in order to be charged
with an intent crime.

Bruce v. State Disputed whether he actually intent to shoot

victim. Tried and convicted of 1st degree felony murder. They didnt
go after intentional murder, since intent is unclear. So they go after
FM since theres no mens rea to prove. The court find that
attempted felony murder is not a crime. What is the deal? The
underlying intent wasnt to kill, during Felony murder, sometimes a
death simply occurs. In some respects, all felonies could be
considered attempted murder.

Actus Reus for Attempt

1) Last act test only punish those who commit the last act before
the act. Such as that I pull the trigger to kill David, but it
backfires. The last act intended could be considered the trigger
pull.
2) Dangerous proximity test - New York uses Dangerous proximity
test. This is the one time you ignore the statute. You ignore the
actus reus. You look at whether the actor gets dangerously close
to finishing the crime.
3) Unequivocal (res Ipsa Loquitor)
4) MPC Substantial step

Distinguishing Preparation from Perpetration: Tests at Work

Cases: Commonwealth v. Peaslee, SJCOMA, Massachusetts - 1901, pg. 750
a. The Def drove to building to blow it up, but changed his mind about a
quarter mile away. This is as close to committing the act as he got.
b.
Rule: Attempt is either an act that would bring about the substantive
crime if not for the unforeseen interruption or an act that would bring about
the substantive crime if not for a mistake of judgment.
c.
HELD: The mere preparation of materials is too remote, and he needed
the intent at the place and time he was going to carry out the crime.
Cases: People v. Rizzo, Court of Appeals, NY 1927, pg. 753
a. Rizzo looking for man to rob, drive around, can't find them, trailed by cops and arrested.
b.
Rule: An attempt requires a dangerous proximity to the
accomplishment of the crime.
c.
HELD: Opportunity never presented itself. They never came within dangerous
proximity to commit crime.
Cases: People v Miller, SCOCA, 1935, pg. 755
a. Def threatens man with murder publicly. Give up gun without raising it or
firing a shot.
b.
Rule: Preparation cannot cease to be equivocal once it becomes
unequivocal attempt has begun but as long as it remains equivocal, no one
can say with certainty what is the intent of the defendant.
c.
HELD: Its not completely certain that he went there to kill him there
were other possibilities.
Cases: State v. Reeves, SCOTN, 1996, pg. 758
a. Two 12 year old girls talk on the phone and plan to kill their teacher with
rat poison.
b.
Rule: When an actor possesses materials to be used in the commission
of a crime, at or near the scene of the crime, and where the possession of
those materials can serve no lawful purpose of the actor under the
circumstances, the jury is entitled, but not required, to find that the actor has
taken a "substantial step" toward the commission of the crime..."
c.
HELD: Court devises new rule to deal with this issue.
Special Defenses
Abandonment
Cases: Commonwealth v. McCloskey, Superior Court of PA 1975, pg. 786
a. Def. voluntarily approached the guard supervisor and confessed to
attempted escape.
b.
Rule: Voluntarily abandoning the criminal offense of attempt exonerates
oneself from criminal liability.
c.
HELD:

What if I wanted to drive recklessly? I had a blindfold on and about to drive. You
can actually be charged with attempt in this circumstance.

The difference is conduct vs. result. You cant intend a reckless result, but you
can attempt reckless conduct.

Attendant circumstances - NYPL 125.27(1) murder in the first degree attendant

circumstance that the victim is a police office. The mens rea you need for this is
knowingly. For the intent the mens rea for the attendant circumstances doesnt
change. The mens rea for the PO was just that O know or should have known, not
intend to know

New York Penal Law 40.10(3)

In any prosecution pursuant to 110.00 for an attempt to commit a crime, it is an
affirmative defense that, under circumstances manifesting a voluntary and
complete renunciation of his criminal purpose, the D avoided the commission of
the crime attempted by abandoning his criminal effort and, if mere abandonment
was insufficient to accomplish such avoidance, by taking further and affirmative
steps which prevented the commission thereof.
It must be complete and voluntary. In terms of completeness, suppose the
professor decides to kill David, but decides to wait. This is not abandonment.
The voluntariness has to be internal, not because youre being chased by the
cops.
What argument do you have against this? The policy is that we want to change their
minds, but it could also encourage people to at least start the crime and then just
renounce.

Solicitation
State v. Mann - SCONC 1986
Solicitation involves the asking, inducing, or counseling of another to commit a
crime. He could perhaps be more dangerous than the conspirator - he plans,
schemes, suggest, encourages, incites...
Cases: State v. Cotton, Court of Appeals of NM, 1990, pg. 792
a. Attempts to send 2 soliciting letters to his wife, both in an attempt to
silence the girl at trial. His cell mate intercepts the first one. The second
letter doesn't make it either.
b.
Rule: The offense of solicitation requires some form of actual
communication from the defendant to either an intermediary or the person
intended to be solicited, indicating the subject matter of the solicitation.

Conspiracy
General Principles
Cases: Pinkerton v. United States - SCOTUS - 1946
a. 2 brothers evade some taxes, get convicted of multiple counts
of substantive charges, plus conspiracy charges. Should brother
Daniel, who was in the state pen when most of the crimes were
committed be guilty of the acts of the other brother who was out
and about committing crimes?
b. Rule: Each co-conspirator is responsible for (1) any reasonably
foreseeable crime committed by co-conspirator (2) in
furtherance of conspiracy

c. HELD: Daniel is guilty there is a continuous conspiracy with no

evidence of Daniels withdrawal

Mens Rea
Cases: People v. Swain SCOCA 1996, pg. 806
a. Convicted of conspiracy to commit murder. Claims jury should have considered
difference of implied v. express malice when determining guilt.
b. Rule: Due to the nature of implied malice murder that it would be
illogical to conclude that one can be found guilty of conspiring to
commit murder where the requisite element of malice is implied.
c. HELD: Conspiracy is a specific intent crime. You cannot conspire
to do something that has no specific intent. The elements of
conspiracy require: 1) Intent to commit crime, 2) intent to agree.
Based on the jury instructions, the jury could have based its
verdicts on the theory of implied malice 2nd degree murder.

Cases: People v. Lauria, Court of Appeal, 2nd dist. 1967, pg. 809
a. The police were scoping out a telephone answering service.
Lauria and 3 prostitutes were indicted for conspiracy to commit
prostitution.
Rule: Supplier situation. For supplier to be responsible must have
A. knowledge of illegal use of goods/services; and
B. intent to further that illegal use
i. Intent may be established by
1. direct evidence; or
2. inference may be based on knowledge of unlawful
use when:
a. special interest in the activity; or
b. aggravated nature of the crime.
c. HELD: The court says how can you show the conscious
objective?

Actus Reus
Cases: Commonwealth v. Azim, Superior Court of PA, 1983, pg. 817
a. Azim & 3 def charges for simple assault, robbery and battery,
when they robbed Jerry.
b. Rule: Once conspiracy is established and upheld, a member of
the conspiracy is also guilty of the criminal acts of his coconspirators
c. HELD: The court found that to prove conspiracy, the relevant
factors to consider are: knowledge of circumstances, association,
presence at scene of the crime, and participation. (KAPP)

Cases: COMMONWEALTH v. COOK (MA 1980) in which watches

while his brother rapes a woman that they randomly met COURT
finds that is not guilty of conspiracy
Rule: Proof of a conspiracy may rest entirely on circumstantial
evidence, but some record evidence is not enough and an
acquittal must be ordered if any essential element of the crime is
left to surmise, conjecture or guesswork.
To warrant conspiracy the evidence must disclose something
further than participating in the offense, which is the object of
the conspiracy; there must be proof of the unlawful agreement,
either express or implied, and participation with knowledge of the
agreement.

Neither association with a criminal nor knowledge of illegal activity

constitute proof of participation in a conspiracy

Conspiracy: Bilateral or Unilateral?

Cases: People v. Foster, SCOIL, 1983, pg. 824
a. In which approaches Ragsdale and proposes robbing an old
guy, Ragsdale then snitches him out to the police who then arrested
them COURT- not guilty.
b. Rule: The Illinois conspiracy statute requires the actual
agreement of at least two persons to support a conspiracy
conviction
c. HELD: The statute does not allow for someone to conspire with
themselves. The statute encompasses the bilateral theory of
conspiracy.

ISSUE: Can a person be guilty of conspiracy if the other person feigns agreement to the
conspiracy?
MPC 8-2(a) is worded in terms of person so is UNILATERAL
(Made EXPLICIT by the commentary attached)
NYPL follows the MPC, the UNLILATERAL approach he agrees with one or
more persons 105.00
Bilateral Theory of Conspiracy =
two or more persons conspire or agree together
POLICY Argument about recurrent problems:
Separate trials for co-conspirators have resulted differently and how can a person be
guilty of conspiracy if his co-conspirator is found not guilty of conspiracy?
o But such generalizations do not require that a valid conviction for
conspiracy against one defendant must be held in limbo pending the
outcome of the separate trial or trails of all alleged co-conspirators.
o Different verdicts may result due solely to the different composition of the
two juries
o Also the general rule is: a conviction of a single conspirator cannot stand
if the alleged co-conspirators are acquitted at the same trial
Unilateral Theory of Conspiracy =
a person commits conspiracy when.he agrees with another
POLICY IN FAVOR:
a man who believes that he is conspiring and wishes to conspire to commit a
crime has a guilty mind and has done all in his power to plot the commission of an
unlawful purpose

CRITICISM AGAINST:
A purpose of conspiracy is to punish the special dangers of group criminal activity
o the unilateral theory of conspiracy does not further this because when
there is only a solo conspirator, there is no group criminal activity
the solo conduct can be addressed through other inchoate offenses like solicitation

and attempted conspiracy

Accomplice Liability
Principals:
First Degree
Second Degree
Accessories:

Before the Fact

After the Fact

Where else have we seen accomplice liability? The Pinkerton Doctrine

Elements of Accomplice Liability
Cases: State v. Hoselton, Supreme Court of Appeals WV, 1988, pg.
851
a. Kid just kinda hangs out while friends steal stuff from a barge.
b. Rule: This court has consistently held that lookouts are aiders
and abettors and, as such, are principals in the second degree.
Further, an aider and abettor, or principal in the second degree,
must in some sort associate himself with the venture, that he
participate in it as something that he wishes to bring about, that he
seeks by his action to make it succeed.
c. HELD: The lookout didnt have the mens rea, nor did he have
the actus reus since he didnt participate in the crime. The fact that
he didnt receive any of the items helps show that he didnt
participate
Mens Rea
Intent: "Purpose" or "Knowledge"
Cases:
a.
b. Rule:
c. HELD:
Cases Not Requiring Intent
Cases: Riley v. State, Court of Appeals, AL, 2002
a. In which Riley and another open fire on a group of people at a
bonfire, no one dies, but 2 folks were seriously wounded
b. Rule: When a defendant solicits, encourages, or assists another
to engage in conduct, and does so with the intent to promote or
facilitate that conduct, the defendant becomes accountable for that
conduct.
c. HELD: Both had a reckless mental state to commit the crime.
charged with 1stdegree assault: recklessly causing serious physical injury by
means of a dangerous instrument
Here Riley was reckless, he did intend to recklessly shoot into the crowd so
he can be guilty of 1st degree assault
Can you be an accomplice to a reckless result crime?
Well, weve seen that you cant attempt a reckless result crime and

You cant conspire to commit a reckless result crime.

BUT
You can be convicted as an accomplice of a reckless result crime.
What is different about accomplice liability?
Conspiracy statute required the intent to commit the crime
Attempt statute also had intent to commit the crime,
(you cannot intend to achieve an unintentional result)
BUT
for accomplice liability, you dont need intent to commit the result of the
crime you only need the mens rea of the crime
HYPO EXAMPLE:
Alice says: yo, taxista, speed and Ill give you a big tip
Is alice an accomplice to negligent homicide when the taxista speeds and kills
another driver?
YES:
speed,

she was negligent (mens rea of result crime) in asking the taxista to
and she solicited the act (actus reas of accomplice liability)

Crime
Attempt crimes
(inchoate crimes)
Purpose of punishing
ATTEMPT;
Not deterrence, bc threat
posed by the sanction for a
attempt is unlikely to deter
person willing to risk the
penalty for the object
crime. Function is to
PROVIDE A BASIS FOR LAW
ENFORCEMENT OFFICERS
TO INTERVENE BEFORE AN
INDIVIDUAL CAN COMMIT A
COMPLETED OFFENSE.
(prevention)
Way to protect rights.
Retributivist theories
purport to justify
punishment of attempted
crimes bc it tends to
restore order of fairness
which was disrupted by
criminals criminal act.
Crime disturbs order of
things and offender
deserves punishment bc
have chosen to disturb
order in a prohibited way. 2
types; intent based and
harm based forms. Intent

MPC

NYPL

Common Law

All jurisdictions treat ATTEMPT as

lesser included offense than
completed crime. Many have held
that a def may be convicted of the
attempt if

Ss 110 A person is guilty

of ATTEMPT to commit a
crime when, with intent
to commit a crime, he
engages in conduct which
tends to effectuate the
commission of such
crime.(dual intent for
crime for acts committed)

Most jurisdictions treat inchoate

offenses as distinct from completed
crimes. Attempt, conspiracy, and
solicitation are thus defined broadly
to encompass acts leading to the
commission of any completed crime.
Legislatures have enacted short
statutes containing abstract
conceptual terms with universal
application instead of trying to
specifying every act to which
inchoate liability attaches.

Ss5.01 CRIMINAL ATTEMPT: A

person is guilty of an attempt to
commit a crime if, acting with
the kind of culpability otherwise
required for commission of the
crime, he:
a)purposely engages in conduct
that would constitute crime if the
attendant circumstances were as
he believes them to be: or
b)purposely does or omits to do
anything which, under the
circumstances as he believes them
to be is an act or omission
constituting a substantial step
in a course of conduct planned
to culminate in his commission of
the crime.
5.05: attempt crimes have the
SAME GRADE AND DEGREE as the
most serious offense attempted or
solicited except for FIRST DEGREE
FELONY.
MERGER Doctrine APPLIES.
Model Penal code is a middleground approach to the problem of

Lesser crimes are

punished one step down
but A2 and A1 attempt
felonies punished the
same as the completed
felonies. Specific
categories of crimes
considered, attempted
drug crimes punished as
severely as completed
drug crimes (Rockefeller
drug laws) REVERSE FROM
MPC IN WAY PUNISH
ATTEMPT CRIMES

MERGER
DOCTRINE
APPLIES: cannot
be convicted of
attempt and
completed crime.
Conduct that tends to

MERGER DOCTRINE
APPLIES: cannot be
convicted of attempt and
completed crime.
Earlier law reflected no general or
coherent theory for determining
sanctions that should be authorized
upon conviction of attempt,
solicitation or conspiracy. Determine
grade of penalty by determining
grade of most serious offense that is
its object.

Illinois: guy burned girlfriend. Didnt

have intent to kill. Courts says for an
attempt crime mens rea is intent but
includes knowingly. Problem is that
knowing isnt enough for an intent

based deas with

substantial steps towards
the commission of the
offense, with intent to
commit that offense, has
already manifested
sufficient non-self-restraint
so as to deserve
punishment.

legislatures attempting to specify

every act to which inchoate
liability attaches. Uses the
Substantial Step Test to prohibit
an act that constitutes a
substantial test toward the
completed offense. Flushes out
term substantial step by listing
possible examples. Courts must
elaborate and decide to
administer. Person commits an
attempt when with the intent to
commit a specific offense, he does
any act which constitutes a
substantial step toward the
commission of that offense.
2) conduct may be held
ONLY if it is
conduct is strongly corroborative
of the actors criminal purpose:
a)lying in wait or following victim
b)enticing or seeking to entice
victim to go to place for
commission
c)exploring place of crime
d)unlawful entry of structure, or
vehicle
e)possession of materials for
commission of crime designed for
only unlawful purpose
f)possession of materials to be
used in crime, and serving no
lawful purpose.
g)soliciting innocent agent to
engage in conduct constituting
element of offense.
SUBSTANTIAL STEP

State v. Reeves (girls poison

teacher) tennesee courts construe
term overt act very narrowly.
Adopted MPCs Substantial step
and found acts under corroborative
conduct.

effect commission of such

crime IS TESTED BY
DANGEROUS
PROXIMITY TEST: where
the act is so near to the
result that if coupled with
an intent to produce that
result, danger is great.
Concentrates on the
distance or gap btwn the
defs actions and the
unachieved goal of the
consummated crime-the
distance must be
relatively short, the gap
narrow if the def is to be
held guilty of a criminal
attempt.
Lighting a match with
intent to set fire is
attempt even if blows it
out.
Nearness of danger and
greatness of harm and
degree of apprehension
felt.
People v. Rizzo. Attempt
to commit robbery came
very near to crime, only
did not come into contact
with the intended victim.
Had weapons, started
automobile for certain
man, went to bank he was
supposed to be at,
watched for him and ran
when saw police.
ACTUS REUS: engages
in conduct which
effects commission of
crime
Ie. PREPARATION v.
completed crime.

RESULT CRIMES:
MENS REA = INTENT

ACTUS REUS: engages in

conduct which effects
commission of crime
Ie. PREPARATION v. completed
crime.

MENS REA: Mens rea of

underlying crime

Person MAY not be

convicted of an
attempted
UNINTENTIONAL
result crime (def
cannot have intent
to commit a
reckless homicide)
MENS REA OF
attempted result
crime is that the
DEF must intent
the result.
CONDUCT crimes:
MENS REA INTEND the
conduct!
A def may be convicted

crime, so you can't be charged if you

have knowingly.
Can't be charged with attempted
reckless murder bc for murder you
need intent.
Conduct that tends to effect
commission of such crime IS TESTED
BY:
i. Probable Desistance Test:
requires judgment in each case
that actor had reached a point
where it was unlikely that he
would have voluntarily desisted
from efforts to commit a crime.
(question was whether anyone
who went so far would stop
short of the final step) no
workable standard, CRITICIZED
BY MPC; applied seems to be
little more than physical
proximity approach.
ii.Abnormal Step Approach
Test: several deficiencies
1)anystep toward crime is a
departure from conduct of
normal citizen and would
encompass any act undertaken,
and difficult to judge where
normal citizen would stop and
what kind of proof would be
appropriate for determination.
Impossible to apply.
iii. indispensible element
test person cannot be guilty if
he lacks a means essential to
completion of the offense. Cant
vote illegally until you have a
ballot:
unequivocal test (res ipsa
loquitur) an act doesnt
constitute an attempt unless
the actors specific criminal
purpose is evident from
conduct, without
considering any statement
she had made before, during
or after incident regarding
state of mind. People v.
Miller. Went into field with
intent to murder one man and
victim fled, and def continued
towards another (constable)
who took the gun and def
offered no resistance. Required
evidence of a direct act toward
consummation of the intended
crime that in the majority of
cases up to that time the
conduct of the def consisted
merely of acts of preparation
has never ceased to be
equivocal,and this is necessarily
so, irrespective of his declared
intent. It is that quality of being
equivocal that must be lacking
before the act becomes one
which may be said to be a
commencement of the
commission fo the crime, or an
overt act, or before any

of an attempt to
commit an
unintentional conduct
crime, def may have
intent to commit
reckless or negligent
conduct (not much
case law, however).
If there are
ATTENDANT
circumstances in the
statute for crime
attempted, the same
mens rea applies to the
attendant
circumstances for the
attempt crime as for
underling crime.
If crime requires intent to
kill you can't be charged
with attempted to kill bc
you need the mens rea of
intent to do it
NO SUCH THING AS
ATTEMPTED FELONYMURDER!!!!!!! Except
in Florida
Can't have attempt to
recklessly murder or
attempt to felony
murder.
INTENTIONAL CONDUCT
BUT NOT INTENTIONAL
RESULT!!! (DONT intend
to kill while recklessly
driving but can attempt to
drive recklessly
iF RESULT CRIME CAN
ONLY HAVE ATTEMPTED
VERSION OF CRIMES THAT
ARE INTENTIONAL AND
CANT HAVE ATTMEPTED
TO KNOW, RECKLESS OR
NEGLIGENTLY

*if its a
negligent or
reckless
crime result
cannot be
convicted of
attempting
to commit
the crime. If
its a
conduct

fragment of the crime itself has

been committed. Didnt
constitute an attempt to commit
murder.
Critique: device to prevent
liability based solely on
confessions and other
representations of purpose bc of
the risks raised when
considered with the other
probative weaknesses incident
to attempt liability. Relation
btwn state of mind of actor snd
actsand Actors behavior is
externally equivocal the criminal
purpose is likely to be unfixed
a subjective equivocality.
Last act: performing last act
necessary to complete the
crime, gun misfired.

crime can be
convicted of
attempt!!!
MERGER
DOCTRINE for
INCHOATE
CRIMES!

MPC: section 5.05 subsection

1: grading of criminal attempt,
solicitation and conspiracy;
mitigation in cases of lesser
danger; multiple convictions
barred
grading: except for first degree
felonies and capital crimes
attempt, solicitation and conspiray
are crimes of THE SAME grade and
degree as most serious offense
that is attempted or solicited or is
an object of the conspiracy. It
drops down to second degree
Ss1.07 When the same conduct of
a def may establish the
commission of more than one
offense, the def may be
prosecuted for each such offense.
He may NOT, however, be
convicted of more than one
offense if:
a)one offense is included in
the other
b)one offense consists only of
a conspiracy or other form of
preparation to commit the
other or
c)inconsistent findings of fact
are required to establish the
commission of the offenses or
d)the offenses differ only in
that one is defeined to prohibit
a designated kind of conduct
generally and the other to
prohibit a specific instance of
such conduct or
e)the offense is defined as a
continuing course of conduct
and the defs course of
conduct was uninterrupted
unless law provides separate
offense.
criminal attempts involve 2 MENS
REA
a) actor must intentionally
commit the acts that
constitute actus reus of
attempt
b) that def must perform
overt act with specific
intention of
committing the crime
(kill or rob, etc.)
In order to submit an issue of
criminal attempt to the jury, state
was required to present legally
sufficient evidence of an intent to
commit a specific crime and an
overt act toward the
commission of that crime and
a failure to consummate the
crime.
So, when same conduct can

Merger doctrine only

applies to ATTEMPT
(when also have the
completed crime) so, in
NY a person may be
convicted of solicitation,
conspiracy AND the
completed crime (or
attempted crime)
MERGER doctrine only to
completed crimes. Can
get multi charges. CANT
BE CHARGED WITH
ATTEMPT AND
COMPLETED CRIME
Opposite of MPC: attempt
crimes punished less than
completed crime, UNLESS
for really serious offenses
are punished the same.
(BC new york is concerned
with Rockefeller drug laws
and being able to get
severe penalties for intent
to distribute drugs and not
just

IN NY they determine how

you have actus reus:
dangerous proximity test
in NY is most likely what is
used here. He wasnt
even close to getting out.

Common law:
merger doctrine applied to attempt
and solicitation. Generally, applied
to conspiracy crimes. A
misdemeanor conspiracy crime (all
conspiracy crimes EXCEPT
TREASON0 merged into the
completed crime if the completed
crime was a felony. Today, courts
dont apply merger doctrine to
conspiracy.
may be prosecuted for each
offense. UNLESS one offense
consists only of conspiracy or
other form of preparation to
commit the other. Merger
doctrine applies to ATTEMPT
AND SOLICITATION. Generally, it
applies to conspiracy except in
rare cases
CAN ONLY BE CONVITED OF ONE,
solicitation, conspiracy or
attempt or completed crime!
(same as COMMON LAW)
:

establish commission of more than

one offense, may be prosecuted
for each offense. UNLESS one
offense consists only of
conspiracy or other form of
preparation to commit the
other. Merger doctrine applies
to ATTEMPT AND
SOLICITATION. Generally, it
applies to conspiracy except in
rare cases
CAN ONLY BE CONVITED OF
ONE, solicitation, conspiracy or
attempt or completed crime!
(same as COMMON LAW)

SOLICITATION

Ss5.02
Person is guilty if purpose of
promoting or facilitating its
commission he commands,
encourages, requests another to
engage in specific conduct that
would constitute crime.
Can have solicitation even if it is
not received or communicated as
long as there needs to have
attempt.
Actus Reus: agreement
MENS REA: intent to engage
another in conduct constituting a
crime.

CONSPIRACY
Policy: that people
working together to
commit a crime are
more dangerous to
society than those
acting alone.
Criminal partnership
creates a greater potential
threat to the public than
individual delicts. Increase
likelihood that criminal
object will be completed
successfully attained and
decreases probability that
individuals involved will
depart from path of
criminality.
Attempts to fill the gap
created by law of attempt
too narrowly conceived.

Ss5.03 A person is guilty of

conspiracy with another person to
commit a crime if with the purpose
of promoting or facilitating the
commission he:
a)agrees with such other person or
persons that they or one or more
of them will engage in conduct
that constitutes such crime or an
attempt or solicitation to commit
such crime or
b)agrees to aid such other person
or persons in planning or
commission of crime or of an
attempt or solicitation to commit
such crime.
Need an overt act pursuant to
conspiracy is proved and alleged
to have been done???????????????
Actus Reus: agreement
MENS REA: intent to combine
with others and intent to
accomplish illegal objective.

NY Ss100.00
Several degrees.5th
degree is basic def.
Person is guilty of criminal
solicitation in 5th when
with intent that another
person engage in conduct
constituting a crime, he
solicits, requests,
commands, importunes,
(gives opportunity) or
otherwise attempt to
cause such other person
to engage in such
conduct.
(Dual Intent: Intent that
another person engage in
conduct, plus intent that
modifies all elements of
statute).
Actus Reus: agreement
MENS REA: intent to
engage another in
conduct constituting a
crime.
Can have solicitation even
if it is not received or
communicated as long as
there is the mens rea!

Conspiracy in the 6th

degree Ss105.00 (dual
intent):
a person is guilty of
conspiracy in the 6th
degree when, with
intent that conduct
constituting a crime be
performed, he agrees
with one or more
persons to engage in
or cause the
performance of such
conduct
1. Ss105.20 requires an
OVERT act by one of
conspirators (some
small act)
2. Ss105.30 no defense
that co-conspirator not
have capacity, etc.
Actus Reus: agreement
MENS REA: intent that
conduct constituting

State v. Cotton (NM 1990) girl never

received letter. Required ACTUAL
COMMUNICATION. Must receive
letter!
Court requires actual communication
bc the state of NM did not adopt the
MPC language, so they didnt follow
it.

Guilty of solicitation if
intentionally invites, request,
commands, or encourages
another person to engage in
conduct constituting a felony (or
a misdemeanor for brach of
peace or obstruction of justice)
Originally, solicitation was
always a misdemeanor, onow
solicitation is a felony.

Pinkerton rule: a person convicted

of conspiracy crimes can also be
convicted for anything that is done
and is reasonably foreseeable def is
also guilty of those crimes.

Everything that was in

FURTHERANCE of
conspiracy and

reasonably foreseeable!
MPC REJECTS PINKERTON BECAUSE
DRAFTERS believe that law would
lose all sense of just proportion if
each conspirator was held
accountable for additional offenses,
he was unaware of.
to prove conspiracy need association
with alleged conspirators, knowledge
of the commission of the crime,
presence at the scene, participation
in crime.
BILATERAL THEORY: BOTH HAVE TO

Concerns of
conspiracy/pinkerton
rule??
concern: evidentiary
impact, once charged
with conspiracy rules of
evidence is changed -
hearsay can come in
and by charging one
with conspiracy it
allows other evidence
such as hearsay by
simple allegations,
making it easier.
In some situations,
crimes of conspiracy
might be given more
severe penalties and
than actual committing
the crime.
Concerns re: joint trials
Venue of jurisdiction:
gives broad power of
venue by nature of it
being a conspiracy.

(does not have to be

completed)
Conspiracy to commit murder
requires finding of intent to kill and
cannot be based on theory of
implied malice.
Also need overt act except for
in felony 1 or second degree
(for actus reus)
CONSPIRACY DOES NOT MERGE
WITH CONVICTION OF
COMPLETED OFFENSE CAN BE
CONVICTED AND PUNISHE
DFOR BOTH CONSPIRACY AND
CRIME.
Here, there are exceptions to the
heresay rule where statements
made in furtherance of objectives
of going conspiracy are
admissible!

UNILATERAL THEORY
RENUNCIATION IS A DEFENSE
MERGER DOCTRINE APPLIES
CANNOT BE CONVICTED OF
CONSPIRACY FOR
UNINTENTIONAL CRIME (SAME
AS WITH ATTEMPT)

Conspiracy provision in code

doesnt solve problem of attendant
circumstances, it is enough that
the object of the agreement is
conduct that constitutes the crime
which can be held to import no
more than the mental state
required for the substantive
offense into the agreement to
commit it. Agreement must be
made with purpose of promoting
or facilitating the crime.

crime be performed,
intent to agree and
combine with others
and intent to
accomplish illegal
objective. (does not
have to be completed)
Must have FOR ACTUS
REUS: OVERT ACT
ALLEGED AND PROVEN
TO HAVE BEEN
COMMITTED BY ONE OF
THE CONSPIRATORS IN
FURTHERANCE OF THE
CONSPIRACY.
UNAWARENESS of the
criminal nature of
action is NOT A
DEFENSE!
UNILATERAL THEORY.
ABANDONMENT
APPLIES
MERGER DOCTRINE
DOES NOT APPLY

NY DOES NOT follow

PINKERTON doctrine. Cant
automatically get charged
with other crimes related.
Here, there are 2 mens
rea requirements for
conspiracy:
1.Intent to agree or
conspire &
Intent to commit the
offense
2.Similar to NEW YORK
Must look to underlying
offense. Here = murder.
(malice aforethought,
express or implied) so
look at intent to kill.
Implied malice is
DEPRAVED
INDIFFERENCE. (reckless
w/D.I) in NY.
If bomb doesnt go off;
could NOT be convicted of
reckless intent to murder.
Can't have attempted
reckless or knowingly
murder. Need intent to kill
to get attempted murder

NY applies the
UNILATERAL THEORY! If
one lies like Foster then
they dont have the

AGREE.
MERGER DOCTRINE DOES NOT
APPLY!!
CaliLauria
Intent of a supplier who knows of the
criminal use to which his supplies
are put to participate in the criminal
activity connected with the use of
his supplies may be established by
1)direct evidence that he intends to
participate or
2)through an inference that he
intends to participate based on
a)his special interest in the activity
b)or aggravated nature of crime
itself
Split in regard to knowledge of
attendant circumstances even if
knowledge is not required for
underlying crime. A higher mens rea
(as to attendant
circumstances( must be proven in a
conspiracy case than for some target
offenses. Others believe that the
policies relating to the underlying
offense should apply to conspiracy
charge, so if underlying offense is
strict liability of attendant
circumstance, same rule should
apply to conspiracy to commit that
offense. (Courts are split, but many
including NY apply same rule for
attempt crime. Mens rea for
attendant circumstances is the same
as the mens rea for the attendant
circumstances of underlying crime
for that attendant circumstance
(so , both strict liability)

The intent of a supplier who

knows of the criminal use to
which his supplies are put to
participate in the criminal
activity connected with the use
of his supplies may be
established by Direct evidence
that he intends to participate OR
through an inference that he
intends to participate based on
a) his special interest in the
activity or the aggravated
nature of the crime itself
In supplier situation NEED:
a.
knowledge of illegal
use and
b.
intent to further use
intent may be shown by :
1.direct evidence or
2.inference that may be based upon
knowledge of illegal use and
a)special interest (in crime) OR
b)aggravated nature of crime
c)no legitimate use (ie volume)
Court will then look to factors to
determine if someone is involved in
conspiracy:

agreement. The faker

won't qualify as an overt
act.

Accomplice
Liability

Ss20 in NYPL Criminal

Liability:
When one person
engages (principle in 1st
degree) in conduct which
constitutes an offense,
another person
(DEFENDANT) is criminally
liable for such conduct
when, acting with the
mental culpability
required for the
commission thereof, he
solicits, requests,
commands, importunes
(urging), or intentionally
aids such person to
engage in such conduct.
(actus reas)

Associated with conspirators

Knowledge of the commission of the
crime
Presence at the scene of the crime
Participation in the object of
conspiracy. (in van during drive by)

Accomplice and conspiratorial

liability are NOT synonymous; one
can be accomplice aiding in the
commission of an offense, without
necessarily conspiring to commit it.
Do not need to establish agreement
to work together or consensus.
1.Principal: (present at the
scene)
a)First degree (perpetrators)
--john wilkes booth
b)Second degree (abettor) --2.Accessories (Not present)
a)Before the fact (inciters):
woman who opened her home to
conspirators
b)After the fact (criminal
protectors): doctor mudd

ALL PUNISHED THE SAME

In NY; whatever category
if you meet the accessory
statute you are GUILTY OF
THE UNDERLYING CRIME.
Policy: NY only way to
make someone liable
for acts they didnt
commit themselves is
under the accomplice
liability statute.
Actus Reus:
1) voluntary act
2) S,r,ci,a?
2 MENS REA
REQUIREMENTS LIKE
CONSPIRACY!
Placement of intentional,
intent of legislature is not
to require intent for others
only aid..but, general
rule in NY if ONE MENS
REA TERM IT MODIFIES IT
IN ENTIRE STATUTE!

Theft

Larceny - Common Law Larceny: 1) trespassory taking and (2) carrying

away (3) of personal property of another (4) with intent to permanently
deprive possessor of property.

Theft wasnt really a crime back in the day, only forcible taking was. This
changed during the middle ages when courts recognized non-forcible taking.

Actus Reus

Lee v. State RULE: Larceny at common law was defined as the

trespassory taking and carrying away of personal property of another
with intent to steal that property doesnt matter if the person is the
owner, it matters who has possession.

Rex v. Chisser Guy runs out with stolen cravats. The courts have to
define what larceny is. The problem was, when he was handed the
cravat, he did not take it, it was handed to him. So its unknown if he
had intent to steal it. He already had possession. Under strict reading,
he would not be convicted of larceny.
RULE: Physical possession of a good obtained through larceny does
not vest in the possessor a legal right to that good.
The court finds there was still possession of the cravat even
though it was handed to the defendant.
Custody (physical possession)
Constructive possession -> store owner still had
possession

US v. Mafnas Security guard steals a bit of money on 3 occasions

hes a bailee. An employee of the bank would give Mafnas the bags of
money. The bank at that point has both physical and constructive
possession. When Mafnas has the bags of money, he has both
constructive and physical possession of the bags. How does the court
find him guilty of trespassory larceny? The courts then create a legal
fiction of breaking bulk the bank still had possession of the money
that was in the bag. So if you break bulk, you are taking from the bank.
He had possession of the bags, but not the money.
RULE: If a person receives property for a limited or temporary purpose,
he is only acquiring custody. Thus, if a person receives property from
the owner with instructions to deliver it to the owner's house, he is only
acquiring custody. Therefore, his subsequent decision to keep the
property for himself would constitute larceny.
Rex v. Pear The question is whether the prisoner committed a
felonious act of larceny. The issue here is when Pear took the horse
(the trick was by providing a false address, he took possession by trick
and not trespassory taking). So the courts create larceny by trick - if
he didn't have the intent when he borrowed it, but later decided to
steal it, he would not be convicted of larceny .

The carrying away/asportation element can be satisfied with a very slight movement
o

Brooks v. State Defendant was found guilty of stealing 200 in bank

bills. He found a muddy dollar and sold it for 25 cents. He bought a
whole bunch of stuff with it, and was charged with larceny. Is he guilty?

The owner still had constructive possession. The defendant had

physical possession.
RULE: "Larceny may be committed of property that is casually lost as
well as of which is not. The title to the property, and its constructive
possession, still remains in the owner; and the finder, if he takes
possession of it for his own use, and not for the benefit of the owner,
would be guilty of trespass, unless the circumstances were such as to
show that it has been abandoned by the owner.

But how do you really know its larceny?

When a person finds goods it is larceny if:
1) Takes possession with
2) Intent to appropriate them to use,
o Really believing or having good ground to believe (at
the time) that the owner can be found.
Lund v. Commonwealth Why is he not guilty of larceny? The VA
statute followed the common law, which required the asportation
requirement. Labor or services cannot be taken; the key element here
is that it is not personal property. Taking computer time is not personal
property. There was also no intent here.

Mens Rea
o People v. Brown Boy staying with family. He takes a bicycle one
day. He took it to get even with one of the boys. Then he got caught
with it. He was going to take it back eventually. He was charged with
burglary.
o RULE: Intent has to be to permanently deprive the owner of the
property. <- note that this doesnt mean you have to keep it, you can
bury it somewhere and that would still permanently deprive it.

Continuing Trespass Doctrine: Legal fiction of continuing trespass

created to deal with intent developed after taking. If you wrongfully take
something, then later decide to keep it, then you now have the mens rea to
intend to deprive.

Embezzlement
o

Rex v. Bazeley, 1799 - Prisoner, who was employed by the bank,

takes banknotes and pockets some money. Key difference between
embezzlement and larceny: No trespassory taking.
RULE: For a charge of embezzlement to stand, there must be an
element of entrustment, to an individual in the course of employment,
of property held in trust for the entrustor. Moreover, there must be
subsequent conversion of that property by the individual embezzler
that implicates a breach of that trust between the parties.

False Pretenses
o People v. Ingram, 1998 - "Although the crimes of larceny by trick
and device and obtaining property by false pretenses are much alike,
they are aimed at different criminal acquisitive techniques. Larceny by
trick and device is the appropriation of property, the possession of
which was fraudulently acquired; obtaining property by false pretenses
is the fraudulent or deceitful acquisition of both title and possession.
o

People v. Wright, 1995 - Man has a busted ATM account, but he

manages to find a few Safeway stores that still take his card due to a
glitch. When the glitch is fixed, they realize over $19k was withdrawn.

Rule: To support a conviction of theft for obtaining property by false

pretenses, it must be shown: (1) that the defendant made a false
pretense or representation; (2) that the representation was made with
intent to defraud the owner of his property and (3) that the owner was
in fact defrauded in that he parted with his property in reliance upon
the representation.
Cases:
a.
b. Rule:
c. HELD: