1.

Legal Guilt
a. Winship
i. Reasonable-Doubt Standard (Due Process Clause of the Fifth
and Fourteenth Amendments)
1. A person convicted could lose their liberty and would
almost cerrtainly suffer the stigma of a criminal act.
2. A society that values liberty must be free of doubts as to
the certainty of guilt.
3. Worse to set a guilty man free than to convict an
innocent.
b. What is a reasonable doubt?
i. "Substantial" and "grave" imply a greater degree of doubt than
the law actually requires to convict.
ii. "Moral Certainty"
1. A moral certainty as to the correctness of the verdict.
iii. "Firmly Convinced"
1. No real possibility.
iv. "No Waver or Vacillation"
1. If having found guilt, there is any waver or vacillation.
v. "No Real Doubt"
1. Based on reason and common sense after a careful and
impartial weighing of the evidence.
vi. "Thoroughly Convinced"
c. Jury Nullification (Fifth Amendment - Double Jeopardy Clause)
i. The instructions including "must."
1. These are legal because nullification is a "power" not a
"right."
ii. The defense may attempt to raise the issue on instructions.
1. Courts rarely allow the instruction.
iii. Prosecutor may seek to discharge a juror that intends to nullify.
iv. Race-based nullification
1. Most jurors would not have the information required to
make a judgment as to which charges to nullify.
2. It would undo a standard for holding actors accountable
and impose a new, anarchic standard.
v. MPC 1.02
vi. MPC 104
vii. MPC 6.06
viii. MPC 5.03
ix. MPC 2.13
2. Punishment
a. Provide a valid justification for depriving on of their liberty.
b. What conduct is wrong, who should be punished and how.
c. Fair criminal laws.
a. Utilitarian
i. General Deterrence
ii. Specific (or Individual) Deterrence
1. Intimidation
iii. Incapacitation
iv. Reform or Rehabilitation
b. Retributivism
i. Punishes based on the commission of the crime.
ii. People have free will and are moral actors.
c. Criticism of Utilitarianism
i. Deterrence justifies using people as a means to an end.
ii. Utilitarianism can justify the punishment of an innocent.
iii. Rehabilitation cannot succeed where other socializing
institutions have failed.
iv. Rehabilitation rewards criminal behavior.
d. Criticism of Retributivism
i. Infliction of punishment without regard for the good to be
gained.
ii. Conflicts with the rights of criminals.
iii. Irrational.
e. Hybrid
i. Utilitarian rationale should be used to create a criminal justice
system that deters criminal behavior.
ii. Retributive rationale shlould be used to determine who to punish
and how much they should be punished.
f. Sentencing
i. Test from the Du case
1. A sentence should:
a. Protects society.
b. Punish the defendant.
c. Encourage the defendant to lead a law abiding life.
d. Isolate the defendant.
e. Secure restitution for the victim.
f. Seek uniformity in sentencing.
g. Proportionality and the Eighth Amendment
i. Utilitarianism and Proportionality
1. General Deterrence
a. The amount of punishment may vary over time and
place.
i. Crime does not always pose the same threat
to different groups of people.
2. Specific Deterrence
a. A more dangerous offender should be punished
more than a less dangerous one for the same crime.
i. Different criminals may require different
degrees of deterrence.
b. Deterrence is justified only to the extent it is
necessary to deter the individual.
3. Rehab
a. A rehabilitative sentence could be very long.
ii. Retributivism and Proportionality
1. Punishment is determined based on the external (criminal
harm) and the internal (criminal mind) components.
a. Punishment could be reduced by the absence of the
internal component.
iii. Proportionality and the Constitution
 1. Rummel
a. The defendant was convicted of check fraud and
sentenced to life.
b. Dissent argued that non-death penalty sentences
should weigh:
i. The gravity of the offense compared with the
punishment.
ii. Penalties imposed for similar offenses in the
same jurisdiction.
iii. Penalties imposed in other jurisdictions for
the same offense.
2. Solem
a. The defendant was sentenced to life in prison for
check fraud.
b. No sentence is constitutional per se.
i. Majority adopted the Rummel case dissent
test.
3. Harmelin
a. The Eighth Amendment does not contain
proportionality rule (two justices)
b. Majority would have applied the Solem test's first
prong to determine whether the punishment was grossly
disproportionate.
i. They determined it was not, and did not
apply the other prongs of the test.
4. Ewing
a. Defendant was convicted of a "wobbler."
i. His crime could have been a petty theft, but
due to his previous record, it was a felony.
b. Majority held that there is proportionality rule in
the Eighth Amendment.
i. The Solem test (four justices)
ii. The narrower construction from Harmelin
(one justice).
3. Law and its Sources
4. Legality and Vagueness
a. Legality
i. Prohibits judicial crime creation.
b. Vagueness
i. Prohibits wholesale legislation that confers the power of
lawmaking on the court.
c. Strict Construction (Rule of Lenity)
i. In questions of legality, the court should favor the accused.
d. Actual Notice: Does the accused actually know?
e. Constructive Notice: Should/could the accused actually know?
i. Under some circumstances, actual notice is required. For
questions of intent, actual knowledge is required.
ii. In cases of penal code or statutory questions,
constructive notice is required.
f. MPC 1.05
5. Criminal Act (Actus Reus)
a. MPC 2.01
b. The conduct and the harmful result.
c. Voluntary act that causes social harm.
d. Can be an omission
i. An omission is only culpable when there is an existing legal
duty.
1. Statutory Duty
2. Contractual Duty
3. Voluntary assumption of care that results in secluding the
person from the help of others.
4. When the person creates the risk.
6. Mens Rea
a. MPC 2.02
i. Minimum Requirements of Culpability. Except as provided
in Section 2.05, a person is not guilty of an offense unless he acted
purposely, knowingly, recklessly or negligently, as the law may
require, with respect to each material element of the offense.
ii. Kinds of Culpability Defined.
1. Purposely A person acts purposely with respect to a
material element of an offense when:
a. if the element involves the nature of his
conduct or a result thereof, it is his conscious object
to engage in conduct of that nature or to cause such
a result; and
b. if the element involves the attendant
circumstances, he is aware of the existence of such
circumstances or he believes or hopes that they
exist.
2. 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
b. if the element involves a result of his
conduct, he is aware that it is practically certain that
his conduct will cause such a result.
3. 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.
4. 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 a
nature and degree that the actor's failure to perceive it,
considering the nature and purpose of his conduct and the
circumstances known to him, involves a gross deviation from the
standard of care that a reasonable person would observe in the
actor's situation.
iii. Culpability Required Unless Otherwise Provided. 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.
iv. Prescribed Culpability Requirement Applies to All
Material Elements. When the law defining an offense prescribes the
kind of culpability that is sufficient for 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.
v. Substitutes for Negligence, Recklessness and
Knowledge. When the law provides that negligence suffices to
establish an element of an offense, such element also is established if
a person acts purposely, knowingly or recklessly. When recklessness
suffices to establish an element, such element also is established if a
person acts purposely or knowingly. When acting knowingly suffices
to establish an element, such element also is established if a person
acts purposely.
vi. Requirement of Purpose Satisfied if Purpose Is
Conditional. When a particular purpose is an element of an offense,
the element is established although such purpose is conditional,
unless the condition negatives the harm or evil sought to be
prevented by the law defining the offense.
vii. Requirement of Knowledge Satisfied by Knowledge of
High Probability. When knowledge of the existence of a particular
fact is an element of an offense, such knowledge is established if a
person is aware of a high probability of its existence, unless he
actually believes that it does not exist.
viii. Requirement of Willfulness Satisfied by Acting
Knowingly. A requirement that an offense be committed willfully is
satisfied if a person acts knowingly with respect to the material
elements of the offense, unless a purpose to impose further
requirements appears.
ix. Culpability as to Illegality of Conduct. Neither knowledge
nor recklessness or negligence as to whether conduct constitutes an
offense or as to the existence, meaning or application of the law
determining the elements of an offense is an element of such offense,
unless the definition of the offense or the Code so provides.
x. Culpability as Determinant of Grade of Offense. When the
grade or degree of an offense depends on whether the offense is
committed purposely, knowingly, recklessly or negligently, its grade
or degree shall be the lowest for which the determinative kind of
culpability is established with respect to any material element of the
offense.
 b. Intent
i. Common Law:
1. It is the desire of the defendant
2. Acts with knowledge that a result is reasonably certain to
occur.
ii. Transferred Intent
1. The victim's of the crime must be of the same status for
intent to transfer.
iii. Conley
1. One intends the natural and probable consequences.
c. Knowledge
i. Actual Subjective Knowledge
ii. Constructive Knowledge
iii. Willful blindness
1. Aware of a high probability
2. Deliberately fails to investigate.
d. Strict Liability
i. Laws that do not need to meet the defined fault principles.
1. Includes minor violations of liquor laws, narcotics.
2. Motor vehicle regulations.
3. Sanitation and building laws.
4. Crimes of high moral turpitude.
ii. Denotes public welfare laws.
1. Results from the complexity of regulating the social order.
2. If punishment is light, Mens Rea is not a requirement.
3. If the punishment outweighs the regulation of the social
order as a purpose of the law, Mens Rea is required.
7. Homicide
a. Common Law Murder
i. Murder was traditionally defined as the killing of another with
malice aforethought.
ii. Meaning of "malice aforethought"
1. Aforethought has no meaning n modern common law.
1. Intent to kill
a. Knowledge that ones conduct will result in death of
another.
2. Intent to cause grievous bodily harm.
3. Depraved heart murder
a. Unintentional murder under circumstances evincing
a depraved mind.
b. Extreme recklessness regarding a homicidal risk.
4. Intent to commit a felony
iii. Fetus must be born alive to constitute a human being.
iv. Year-and-a-day rule
v. Murder by degree
1. Created to confine the application of the death penalty.
1. Murder in the first degree
a. Unlawful killing committed willfully, premeditated
or deliberate.
b. Killing in the commission of another felony.
 2. Murder in the second degree
a. All other murder.
b. Common Law Manslaughter
i. Manslaughter was differentiated to withdraw the benefit of the
clergy from capital cases.
ii. Lacking malice aforethought and justification.
1. In the heat of passion or with adequate provocation.
2. An act that was reckless but insufficiently so to qualify as
depraved heart.
3. Misdemeanor-manslaughter
iii. Federal Manslaughter
1. Voluntary - in the heat of passion.
2. Involuntary - In the commission of an unlawful act or of a
lawful act that may cause death.
c. MPC Homicide Statutes
i. Murder
1. No malice aforethought.
2. Intentionally or knowingly takes a life without defense
(unjustifiably or inexcusably), and in the absence of mitigating
circumstances.
a. Recklessly with extreme indifference.
i. Recklessness is presumed if the murder was
during the commission of a felony.
ii. Jury is instructed that the underlying felony
must demonstrate an extreme indifference.
ii. Manslaughter
1. Reckless Homicide
a. Lesser included of Reckless Murder
b. Conscious disregard of a substantial and
unjustifiable risk.
i. Subjective
2. Extreme Mental or Emotional Disturbance
a. Reasonable explanation (Objective)
i. Under the circumstances as the defendant
believed them to be.
b. Moral idiosyncrasy of the defendant not included.
c. Different from the Common Law
i. No specific provocative act
ii. Not specific to the provoker.
iii. No fixed category of provocation.
iv. No cooling off.
3. Negligent Homicide
a. Disregard of a risk which the defendant should be
aware of.
d. Murder (Intent to Kill)
i. Natural and Probable Consequences
1. A reasonable person would have known that the conduct
would result in death.
 a. In the absence of evidence that the defendant was
capable of acting reasonably (an ordinary person), the
defendant intended the natural consequences of the act.
ii. Deadly Weapon Rule
1. An intent to kill may be inferred from the use of a deadly
weapon against a vital part of the victim.
iii. The judge may not instruct the jury to presume either.
e. Willful
i. Specific intent to kill.
f. Deliberate
i. To measure and evaluate.
ii. Quality of time.
g. Premeditated
i. More than the twinkle of an eye.
ii. Quantity of time.
iii. Some hold that the amount of time is only the amount required
to form the intent.
h. Intent to Inflict Grievous Bodily Harm
i. Express Malice if a deadly weapon was used.
ii. Implied Malice if the defendant intended to inflict serious harm
but not death.
i. Extreme Recklessness
i. Implied Malice (Second Degree)
1. Wanton and willful disregard
2. Conscious disregard of a substantial and unjustifiable risk.
a. Risk of death must be great.
j. Felony Murder
i. Specified Felonies (usually rape, arson, robbery, or burglary)
results in death
1. First-degree murder.
ii. Unspecified felonies
1. Second Degree murder.
iii. Intent to commit the underlying felony constitutes the implied
malice for the murder.
1. Applies to accomplices regardless of their level of intent.
iv. Criticism
1. Deterrence
a. One cannot deter another from an unintentional
act.
b. Criminals are unlikely to rationalize their threats of
force to mitigate an unforeseeable death.
2. A criminal that accidentally takes a life should not be held
to the same cupability standard as one who intentionally kills.
k. Manslaughter
i. Common Law
1. Sudden heat of passion
2. Adequate Provocation
a. Aggravated assualt or battery
b. Mutual Combat
 c. Commission of a serious crime against a close
relative of the defendant.
d. Illegal arrest
e. Spousal adultery.
1. Not Adequate
i. Trivial battery
ii. Learnig of a spousal adultery.
iii. Other unmarried adultery
iv. Words, no matter how offensive.
3. No reasonable cooling off.
4. Causal link between the passion, provocation and the
killing.
1. Defendant must kill the provoker.
ii. Rules from Girouard:
1. Once established, adequate provocation must be followed
by;
1. Killing in the heat of passion, and
2. The heat of passion must have been sudden
3. There must be a casual connection.
iii. Modern Law
1. Unlawful Provocation that would render an ordinary
person incapable of cool reflection.
2. Few courts allow words alone.
iv. MPC Manslaughter rule
v. Criminal Negligence (Involuntary Manslaughter)
1. One who should be aware of the risk but is not.
2. Severe enough to sanction punishment, not merely civil
liability.
vi. Misdemeanor Manslaughter
8. Capital Punishment
a. Constitutionality
i. Furman v. Georgia (1972)
1. Majority decision outlawing capital punishment.
1. Brennan and Marshall concurring that under any
circumstances death is a violation of the 8th amendment
(per se unconstitutional).
2. Douglas, Stewart and White concurring that it is
unconstitutional when applied arbitrarily (as applied
unconstitutional).
i. Douglas arguing that there may not be any
regime that eliminates the arbitrary application.
2. Minority decision upholding capital punishment
1. Burger uses the historical argument.
2. Powell dissenting that the racial argument is
inconclusive and unconvincing.
3. Blackmun and Rehnquist arguing precedent.
3. Decision had the effect of prohibiting the death penalty
for any crime.
1. Decision invited legislatures to redraft their death
penalty sentencing statutes.
 i. 35 states redraft using MPC.
i. Bifurcated proceedings.
ii. Weighing of mitigating and
aggravating circumstances.
ii. Gregg v. Georgia (1976)
1. Majority decision reinstating the death penalty.
1. Stewart, Powell and Stevens concurring that the
death penalty is neither per se unconstitutional under the
8th amendments nor is the statutory scheme
unconstitutional.
i. Excessive infliction
ii. Proportionality
i. In service of penological goals
2. White, Burger, and Rehnquist concur and add that
the argument that there remains an arbitrary discretion is
an indictment of the entire justice system that fails.
3. Blackmun concurring.
2. Minority decision upholding the prohibition on death
sentences.
1. Brennan using the per se argument that death
violates the 8th amendment because it degrades human
dignity.
2. Marshall dissenting that the standard of decency is
the result of a misinformed public.
3. Decision had the effect of reinstating the death penalty in
cases in which the statute comports with the majority decision.