CRIM LAW OUTLINE Exam number: 2590

Areinoff
Spring 2021
I. Nature, Sources, And Structure of Criminal Law
a. Criminal process
i. Pretrial
1. Statute
2. Violation
3. Report crime to law enforcement
4. Arrest
5. Initial appearance
6. Bail/detention decision
7. Decision to charge
8. Preliminary hearing/grand jury
9. Indictment/information
10. D’s decision to plead guilty or go to trial
ii. Trial
1. Jury selection
2. Opening statements
3. Prosecution case
4. Defense case
5. Prosecution rebuttal case
6. Jury instructions
7. Closing arguments
8. Verdict
iii. Post-conviction
1. Sentencing
a. Fine
b. Supervision
c. Incarceration
2. Appeal
3. Collateral attack
b. Presumption of innocence
c. Burden of proof
i. Prosecutor has initial burden to prove each element beyond a reasonable
doubt
ii. Affirmative defenses may place some burden on the defense, but final
burden remains with prosecutor
d. Hypo #1: Fear, pain, and bubble gum
i. Constin
ii. Ike
iii. Ed
e. Why have criminal law?
i. Harms of criminal acts extend beyond individual to society
ii. Society condemns criminal acts through punishment
f. Criminal v. civil
i. Moral blame
ii. Imposition of punishment
iii. Government as plaintiff
g. Malum in se: wrong in itself
h. Malum prohibitum:
wrong because prohibited
by law
i. Sources of criminal law
i. Statutes
1. Federal
criminal
code
2. Individual
state codes
3. Model Penal
Code
ii. Common law
iii. Constitutions
1. State
2. Federal
a. Due Process Clause
b. Eighth Amendment
j. Offense elements
i. Objective elements
1. Conduct
2. Circumstances
ii. Culpability elements
1. Mental state
k. Imputation
i. Imputing objective element (e.g., accomplice liability)
ii. Imputing culpability element (e.g., voluntary intoxication)
l. Defenses
i. Justification (e.g. self-defense)
ii. Excuse (e.g. insanity)
iii. Non-exculpatory defense (e.g. statute of limitations)
iv. Entrapment
v. Failure of proof
m. Hypo #2: fear of daggers
 II. Legality (pp. 31-52): you have to warn people about what you are going to punish them
for before you punish them for it
a. Problem #4: Ray Brent Marsh
i. Georgia Code § 16-1-4
1. No conduct constitutes a crime unless it is described as a crime in
this title or in another statute of this state
ii. State v. Bradbury: common law offense
iii. Georgia Code § 31-2-44.1
1. Abuse of a dead body
iv. Glover v. State: rule of strict construction
v. MPC
1. § 1.05: Legality
a. “No conduct constitutes an offense unless it is a crime or
violation under this Code of another statute of this state.”
2. § 250.10: Abuse of corpse
b. Vagueness: rooted in right to due process
i. Rule of lenity
1. Vague: unclear what is being prohibited
a. Unconstitutional
2. Ambiguous: can be read in two or more equally plausible ways
a. Constitutional BUT MUST resolve in favor of D
ii. Ejusdem generis: “of the same kind”
1. When a law lists classes of persons or things, this concept is used
to clarify such a list
c. Ban on Ex Post Facto Laws
i. Cannot create a law after the fact to punish what happened before the law
was passed
d. Arizona statute codifying legality principle: ARS § 13-103
e. Statutory Interpretation: always have to start with language of the statute
i. Canons of construction
ii. Related statutes (can make analogies)
iii. Legislative purposes stated in statute
iv. Legislative history
v. Structure of statute and placement of relevant language
f. Hypo #6: Is a fetus less than human?
g. Hypo #7: gangsters can’t stop
i. Liable under statute
ii. Constitutional challenge
1. “Apparent purpose”
iii. MPC
iv. Chicago v. Morales (actual result): statute is void for vagueness
III. Theories of Punishment (pp. 78-93)
 a. Sara Jane Olsen case: member of radical movement in LA, involved in pipe
bombs
b. Why punish?
i. Retributivism: wrongdoers deserve punishment
1. Backward-looking
2. Punishment because you deserve it
3. Punish based on blameworthiness (i.e., getting one’s “just deserts”)
4. Blameworthiness based on 1) seriousness of offense and 2) actor’s
moral accountability
ii. Utilitarianism: punishment creates beneficial consequences (e.g.,
deterrence)
c. Problems: #9 (Olson); #10; #13
IV. Actus Reus: the guilty act (act or omission requirements)
a. Act
i. Martin v. State
ii. MPC § 1.13(2): "act" or "action" means a bodily movement whether
voluntary or involuntary
1. Voluntary not defined but it can be inferred from examples of
involuntary acts in § 2.01(2)(d)
2. Involuntary acts
a. Reflex or convulsion
b. Bodily movement during unconsciousness or sleep
c. Conduct during hypnosis or resulting from hypnotic
suggestion
d. Bodily movement that otherwise is not a product of the
effort or determination of the actor, either conscious or
habitual
b. Omissions (pp. 487-515)
i. Common law
1. Jones v. U.S.
2. 4 scenarios where omissions can be criminal
a. a statute imposes a duty;
b. status imposes a duty;
c. contract imposes a duty; or
d. one has voluntarily assumed the care of another and
secluded the person, preventing others from rendering aid
ii. MPC § 2.01(3): Liability for an offense may not be based on an omission
unaccompanied by action unless:
1. the omission is expressly made sufficient by the law defining the
offense; OR
2. a duty to perform the omitted act is otherwise imposed by the law
iii. Problem #72: Dunning’s Deal
 iv. A person is guilty of involuntary manslaughter when as a direct result of
the doing of an unlawful act in a reckless or grossly negligent manner, he
causes the death of another person
v. Basis for omission liability
1. Status:
2. Contractual duty
3. Others?
vi. Problem #71: David Cash Case
1. Relevant statutes & liability
a. Possibilities of Crimes:
i. Murder (p. 496-98)
ii. Kidnapping (p. 499)
iii. Sexual Assault (p. 500-01)
b. HOW? As a principal (accomplice) or if he had a legal duty
c. Relevant Cases
i. Lee v. GNLV Corp
ii. Labastida v. State
vii. Problem #74: stepping over the corpse in Aisle 3
1. MPC:
2. Liability in states with duty-to-rescue statutes:
a. Rhode Island
b. Vermont
c. Wisconsin
V. Mens Rea (pp. 109-144)
a. Overview:
i. When statute is silent: purposely, knowingly or recklessness is Mens Rea
ii. When one Mens Rea term: applies to all Actus Reus (unless contrary
purpose plainly appears)
iii. Proof of greater Mens Rea satisfies lesser Mens Rea
b. Common law
i. General intent: a general desire to commit a crime
1. Ex: “intentional application of force upon another” (battery)
ii. Specific intent: requiring some further purpose beyond a general desire to
commit a crime
1. Ex 1: trespass with intent to commit a felony (burglary)
2. Ex 2: assault with intent to kill
iii. Strict liability (no mens rea)
iv. Examples
1. Arson
2. False pretenses
3. Larceny
4. Kidnapping
c. MPC 2.02
 i. Purposely [2.02(2)(a)]: conscious object is to cause such a result
1. 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
ii. Knowingly [2.02(2)(b)]: practically certain that the conduct will cause
that result
1. A person acts knowingly with respect to a material element of the
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.
iii. Recklessly [2.02(2)(c)]: aware of substantial risk of result
(SUBJECTIVE)
1. 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.
2. 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 (objective)
iv. Negligently [2.02(2)(d)]: unaware of substantial risk but should have
perceived it (OBJECTIVE)
1. 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.
2. 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 (objective)
d. Concurrence requirement (p. 133): when an offense definition requires a
particular level of culpability as to a particular element, it means that the required
 culpability as to the element must exist at the time of the conduct constituting the
offense.
e. Intent:
i. Extent
1. enough that D intended to cause the harm indicated in the statute
2. Prosecutor need not prove intent to cause the exact injuries
ii. Transferred intent:
1. Person to another person: YES
2. Person to property: NO
iii. Willful blindness: an actor’s deliberate actions to not find out a fact do not
protect her from being treated as knowing that fact
1. MPC § 2.07: knowledge requirement satisfied by knowledge of
high probability.
a. 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.
2. Cases
a. U.S. v. Jewell
b. Morissette v. U.S.
iv. Construction: MPC § 2.02(4)  Prescribed Culpability Requirement
Applies to All Material Elements.
1. 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.
f. Case: Thomas Fungwe
i. Under Michigan Law
1. Murder:
2. Manslaughter:
3. Negligent homicide:
4. Child abuse:
ii. Under MPC
iii. Actual case: no prosecution
VI. Negligence & Strict Liability; Mistake (pp. 144-150; 175-184; 681-696)
a. Case: Raymond Garnett
i. MPC
1. 213.3(1)(a)
2. 213.4(6)
3. 213.6(1): mistake of age defense
ii. Maryland law
 1. Eggleston v. State: it is no defense that the defendant did not know
that the female was under the statutory age of consent
2. Michael M
iii. Actual result
1. Second degree rape (464(a)(3))
2. No mistake of age defense allowed
3. 5 years in prison but judge suspends sentence; he pays restitution
4. Affirmed on appeal in a 5-2 decision
b. Strict liability: pros and cons
i. Pros:
1. Incentivizes more careful action beyond reasonable person
2. Usually requires negligent behavior anyway
3. Usually civil-like penalties anyway
ii. Cons
1. Not fair because it does not even require negligence
2. Civil liability is enough of a deterrent
3. Devalues moral force of criminal law
c. People v. Olsen: mistake of age defense
i. California law
ii. MPC 2.04: Ignorance or mistake as to a matter of fact or law is a defense
if:
1. the ignorance or mistake negatives the purpose, knowledge, belief,
recklessness or negligence required to establish a material element
of the offense; or
2. the law provides that the state of mind established by such
ignorance or mistake constitutes a defense
VII. Mistake
a. Mistake of fact: when D was ignorant of a fact that relates to one of the elements
of the crime
i. MPC Summary
1. General rule: Awareness of certain attendant circumstances in the
statute is usually required, so ignorance of a fact is usually a failure
of proof [MPC 2.02(3)]
2. Exceptions
a. When statute expressly provides that awareness of a fact is
not required
b. When the defendant mistakenly thinks that he is
committing a lesser offense
ii. MPC Text
1. 2.04(1)(a)
a. “the ignorance or mistake negatives the purpose,
knowledge, belief, recklessness or negligence required to
establish a material element of the offense”
 2. 2.04(2)
a. “the defense is not available if the defendant would be
guilty of another offense had the situation been as he
supposed. In such case, however, the ignorance or mistake
of the defendant shall reduce the grade and degree of the
offense of which he may be convicted to those . . . of which
he would be guilty had the situation been as he supposed.”
b. Ex: Under MPC 2.04(2), what is punishment for selling
child pornography to 17 year old who D reasonably
believes was 18?
i. Statute 1: It is a felony to sell porn to a minor
ii. Statute 2: It is a misdemeanor to sell child porn to
an adult
iii. CL
1. Honest mistake negates specific intent
2. Only reasonable mistake negates general intent
3. No mistake defense for strict liability
iv. Examples
1. A driver goes over the speed limit without realizing it because his
speedometer is stuck at 55.
a. Speeding is a strict liability crime  NO DEFENSE
2. Bob starts a bonfire in the woods, believing them to be
unoccupied. In reality, there are multiple cabins nearby.
a. Reckless burning: MPC 220.1(2)
b. Reasonable mistake?
b. Mistake of law: When the defendant is ignorant about an element of the criminal
offense
i. MPC Summary
1. General rule: Awareness of law is not usually required, so
ignorance of law is not usually a failure of proof [MPC 2.02(9)]
a. Exception #1: When statute expressly provides that
awareness of law is required. [MPC 2.04(1)]
i. People v. Weiss: KIDNAPPING FALSE ARREST
ii. Cheek v. U.S.: INCOME TAX CASE
b. Exception #2: When the defendant reasonably relies on an
official statement of law that is later determined to be
incorrect. [MPC 2.04(3)(b)]
ii. MPC 2.04(3)(b)
1. A belief that conduct does not legally constitute an offense is a
defense to a prosecution for that offense based upon such conduct
when:
 a. he acts in reasonable reliance upon an official statement of
the law, afterward determined to be invalid or erroneous,
contained in
i. a statute or other enactment;
ii. a judicial decision, opinion or judgment;
iii. an administrative order or grant of permission; or
iv. an official interpretation of the public officer or
body charged by law with responsibility for the
interpretation, administration or enforcement of the
law defining the offense.
iii. MPC 2.02(9): culpability as to illegality of conduct
1. 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.
iv. Case: Julio Romero
1. Reasonable reliance exception
v. What is an appropriate official statement of the law?
1. Official opinion letter from the state AG or federal AG
2. Administrative order
3. Judicial opinion
c. Problem: #98 (Marrero)
VIII. Homicide (pp. 193-211)
a. Common Law
i. Murder: killing of another human being WITH malice aforethought
1. Malice: one of the four states of mind
a. the intention to kill a human being
b. the intention to inflict grievous bodily harm on a human
being
c. an extremely reckless disregard for the value of human life
d. the intention to commit a felony, during which death
results.
ii. Manslaughter: killing of another human being WITHOUT malice
aforethought
1. Voluntary: an intentional killing committed in the “sudden heat of
passion” as the result of “adequate provocation.”
2. Involuntary: negligent homicide
3. Misdemeanor: during the commission of a misdemeanor.
b. Pennsylvania/ Traditional American Model  DEGREES
i. MOST STATES FOLLOW THIS MODEL, including Arizona
ii. First-Degree (3 TYPES)  death penalty
 1. Killings committed in a specified manner (e.g., poison, lying in
wait);
2. Killings that are “willful, deliberate, and premeditated”; and
3. Killings that occur during the [attempted] commission of a
specified felony (e.g., arson, rape, robbery, burglary)
iii. Second-Degree (4 TYPES)  imprisonment
1. Intentional killings that are not premeditated;
2. Intent to commit grievous bodily injury killings; and
3. Reckless (depraved heart) killings; and
4. Killings that occur during the commission of an unspecified felony
c. MPC § 210:
i. Murder
1. §210.2(1)(a): purposely or knowingly
a. CL: intent to kill
2. § 210.2(1)(b): recklessly with extreme indifference
a. CL: depraved heart
3. § 210.2(1)(b): modified version of felony murder
a. CL: complicated
ii. Manslaughter:
1. § 210.3(1)(a): Recklessly
2. § 210.3(1)(b): committed under influence of extreme emotional
disturbance
iii. Negligent Homicide:
1. § 210.4
d. Case: Sabine Davidson: LOOSE DOG KILLS CHILD
e. State v. Guthrie (on D2L): DISHWASHER SNAPPED WITH TOWEL
f. Premeditation – deliberation definition
i. Clifford instruction: “It is not necessary that the intention to kill should
exist for any particular length of time prior to the actual killing; it is only
necessary that such intention should have come into existence for the first
time at the time of such killing, or at any time previously.”
ii. Schader instructions: “In order to constitute a ‘premeditated’ murder an
intent to kill need exist only for an instant. . . . What is meant by the
language willful, deliberate, and premeditated is that the killing be
intentional.”
iii. Hatfield: “Any interval . . . which is of sufficient duration for the accused
to be fully conscious of what he intended, is sufficient.
iv. Morrin: to premeditate is to think about beforehand. To deliberate is to
measure and evaluate the major facets of a choice or problem.
Premeditation and deliberation is a thought process undisturbed by hot
blood. No exact minimum time necessary but the interval between initial
thought and ultimate actions should be long enough to afford a reasonable
man time to subject the nature of his response to a second look
 g. Premeditation analysis  two factors
i. Quantity of time
1. Instantly?
2. First time at time of killing?
3. Long time to think?
ii. Quality of thought
1. Weighing of act?
2. Measure and evaluate choice?
3. Pros and cons?
4. Hot or cold blood?
5. Reasonable person has second look?
h. Midgett v. State: DRUNK FATHER PUNCHES SON TO DEATH
i. Charge: 1st deg premeditated murder
1. Guthrie standard:
i. State v. Forrest: SON SHOOTS FATHER IN HOSPITAL TO END SUFFERING
i. Charge: 1st deg premeditated murder
1. Guthrie standard:
j. Sentencing  mitigating & aggravating factors
i. Mitigating:
1. Victim is aggressor or participant in criminal conduct
2. Offender plays minor/passive role
3. Offender lacks substantial capacity (physical or mental impairment
not drugs/alcohol)
4. Defendant or Ds children suffered physical or sexual abuse by
victim of offense and offense is response to abuse
5. Degree of harm or less attributed to crime is significantly less than
typical for such offense
ii. Aggravating
1. Victim particularly vulnerable (age, infirmity, reduced capacity
that was known or should have been known to offender)
2. Defendant’s conduct was excessively brutal to victim
3. Offense motivated by race color religion ethnicity national origin
or sex orientation
4. Offense involved fiduciary relationship between D and victim
5. D employed a person under 16 to avoid detection for crime
6. D is predatory sex offender convicted of crime o extreme sexual
violence
IX. Felony Murder (pp. 211-224)
a. Strict liability for death occurring during felonious conduct
i. No mens rea required
ii. Can be totally accidental
b. CL
i. Abolished in England
c. Penn Model
i. If the felony is specified, then 1st degree murder
1. Robbery, rape, arson, burglary, kidnapping
ii. If the felony is not specified, then 2nd degree murder
d. MPC § 210.2(1)(b)
i. Presume recklessness or extreme indifference to value of human life when
killing occurs during robbery, rape, arson, etc.
e. People v. Howard (on D2L)
f. Problem #25: visiting a witness
i. Quince
1. Under traditional law
2. Under MPC
ii. Ray
1. Under traditional law
2. Under MPC
g. Mayes v. People: DRUNK MAN THROWS BEER, BURNS WIFE TO DEATH
i. Charge is murder, not manslaughter
ii. Holding: presume malice
iii. MPC result?
h. Justification
i. Causal theory: D should be responsible for death as predictable outgrowth
of felony he tried to commit
ii. Equivalency theory: D’s culpability is morally equivalent to typical
murderer’s culpability OR culpability for underlying offense and killing
are, together, equivalent to culpability for murder
iii. Evidentiary theory: FMR eases evidentiary burden and facilitates
appropriate punishment
iv. Deterrence: threat of felony murder will make felons more careful to avoid
deaths
i. Limits
i. Specified v. Unspecified
ii. Inherently Dangerous Felonies
iii. Merger/Independent Felony Rule
1. Independent felony limitation
a. Felony is not independent when it is integral part of
homicide
i. Need independent felonious purpose
b. Independent felony ex: robbery; rape; kidnapping; arson
c. Non-independent felony ex: manslaughter; aggravated
assault
2. Merger: KEY QUESTION IS INDEPENDENT PURPOSE
a. Husband breaks into wife’s apartment without her
permission with intent to kill her
 i. Felony: Burglary (with intent to commit what
felony?)
ii. Felony murder: NO bc burglary doesn’t have an
independent felonious purpose other than murder
iii. Result: Not guilty of felony murder (still guilty of
premeditated murder)
b. Man breaks into store with gun to steal televisions. Ends up
killing store clerks.
i. Felony: Armed Robbery
ii. Felony murder: YES bc the felony has an
independent felonious purpose other than killing or
injuring the victim
iii. Result: Guilty of felony murder
i. Proximate Causation Theory (in furtherance of felony)
ii. Innocent Person Limitation  2 approaches
a. Agency approach: FMR doesn’t apply if person who directly
causes death is non-felon (majority rule)
b. Proximate cause approach: If an act by one felon is proximate
cause of homicidal conduct by non-felon (including police
officer), can still be felony murder
j. Affirmative defenses
i. [In some jurisdictions] show that you did not commit, assist, or request the
homicidal act; were not armed; and had no reason to believe that an
accomplice might do something to cause death
k. Misdemeanor manslaughter
l. Application
i. Hypo #26: Exxon kidnap gone bad
1. Arthur kidnaps Exxon CEO for ransom money. Shoots CEO’s arm
during kidnapping. Puts CEO in a box without medical supplies or
water. CEO dies.
ii. Hypo #28:
iii. Hypo #29:
iv. Issue: Felony Murder Rule (pp. 226-230)
m. MPC presumption of reckless murder in certain scenarios
X. Provocation (pp. 267-274)
a. CL: 4 requirements
i. Heat of passion (subjective)
ii. Adequate provocation (objective)
1. “Adequate” provocation (traditional)
a. Extreme assault or battery
b. Mutual combat
c. Illegal arrest
d. Injury of a close relative
 2. “Inadequate” provocation
a. Trivial assault or battery
b. Non-mutual combat (initiated by the defendant)
c. Legal arrest
d. Injury of a friend, or a distant relative
e. Learning about adultery without observing it, or observing
“adultery” involving a fiancée or unmarried partner
iii. Sudden (objective) -- no reasonable opportunity to cool off; and
iv. Causal links between the provocation, the passion, and the homicide.
(objective)
v. Sudden observation of a spouse’s adultery
b. MPC § 210.3(1)(b): Extreme Emotional Disturbance (SUBJECTIVE)
i. Criminal homicide is manslaughter when committed under
1. Influence of extreme mental or emotional disturbance for which
2. There is a reasonable explanation or excuse
a. Reasonableness of explanation or excuse shall be
determined from the viewpoint of a person in the actor’s
situation under the circumstances as he believes them to be
3. Example: Man and woman dated for 3 months and she dumped
him. He stalked her and three months later he killed her.
a. Charge: murder
b. Defense: extreme emotional disturbance (so it should be
manslaughter)
c. *Differences between provocation and EED under MPC*
i. MPC does not require “suddenness”
ii. MPC has no categories of “adequate provocation”
iii. “Last straw” or cumulative theories are allowed
iv. MPC allows the disturbance to be from the viewpoint of the person as he
or she believes them to be (SUBJECTIVE)
d. How does provocation work?
i. Charge of Second-Degree murder
1. Intentional killing of a human being
ii. Prosecutor has to prove a prima facie case
iii. Defendant raises affirmative defense of Provocation
iv. All elements of provocation have to be proven
v. Provocation is a partial defense
e. Examples & Application
i. Trucker finds wife in bed with another man, gets drunk for two hours, gets
a gun, then goes back to chase off the guy and kill his wife
ii. Case: John Gounagias
XI. Unintentional killing
a. Involuntary Manslaughter
b. Negligent homicide
 i. Civil v. criminal negligence
1. Criminal: should have been aware of a substantial
unjustifiable risk but failed to perceive it (gross)
2. Civil: should have been aware of an unjustifiable risk (accidental)
c. Reckless homicide
d. Examples
i. State v. Hernandez: D drinks a 12 pack and some whiskey, drives and
kills someone with his car. He had posted a bunch of signs and pins with
drinking slogans all over his van Charge: Reckless murder or involuntary
manslaughter?
ii. State v. Williams: 14-month-old child has toothache, and they don’t take
him to doctor. Mouth and cheek are infected with gangrene and after two
weeks the child dies
iii. Hypo: sleepy driver kills a jogger. He drifted off the road once before
hitting and killing jogger.
1. MPC?
2. Reckless mans v negl homicide
e. Causation
i. But-for cause: conduct necessary for result to occur
1. Would result have occurred if actor had not acted as he did?
2. Necessary v. sufficient
ii. Proximate cause: fuzzy standard
1. Black letter law
a. MPC: “Not too remote or accidental in its occurrence”
b. AZ: “rendered substantially more probable”
2. Foreseeability: would a reasonable person foresee that their
conduct would cause a particular result?
3. Intervening act: Breaks causal chain sufficiently to reduce or
eliminate criminal liability
a. Look for volitional choice by someone other than defendant
b. Was volitional choice foreseeable?
iii. Analysis
1. Case: Joe Govan
2. Commonwealth v. Root: D drag racing with victim on rural
highway. Cars racing at 70-90mph in 50mph zone. V goes to pass
D in two-lane section of highway. V tries to pass and collides head
on with oncoming truck.
a. Charged with involuntary manslaughter
b. Court reasoned need to apply more demanding standard in
criminal cases, not sufficient for criminal liability
3. Michelle Carter case
a. Texting to encourage suicide
b. Involuntary manslaughter
 4. Hypo #40: two killers, one killing
a. Wood: Shot to stomach—fatal wound, but takes a week
i. But-for cause? Proximate cause? MPC liability?
ii. Wood not liable since intervening shooting from
Alma
b. Alma: Shot to chest—immediately fatal
i. But-for cause? Proximate cause? MPC liability?
5. Hypo #43: jump to escape and drown
a. But-for cause: yes
b. Proximate cause: not clear
c. Maybe reckless or negligent, not knowing
XII. Diminished Capacity (pp. 277-281): mens rea issue
a. NOTE: Different than insanity
i. Insanity: affirmative defense that excuses criminal behavior (see Insanity)
ii. DimCap: mental condition negates particular mens rea element of offense
1. Not an affirmative defense—failure to prove every element beyond
a reasonable doubt
b. MPC § 4.02(1): Admit evidence of mental disease or defect where it is relevant
to prove whether D had state of mind that is element of offense.
c. Applications
i. U.S. v. Brawner: Brawner injured in fight at party. Leaves but vows to
return, saying “someone is going to die tonight.” Returns 30 mins later and
fires into door of apartment. Two shots strike and kill guest.
1. Holding: evidence at trial of epilepsy can be considered by jury in
evaluating mental state required for offense
ii. California v. White
iii. Problem: #37

INCHOATE (NOT COMPLETE) OFFENSES

XIII. Attempt (pp. 327-345)

a. Competing interests
i. Preventing crime
ii. Protecting innocent conduct
iii. About drawing the line between okay and criminal
b. Two kinds of attempt
i. Complete: did all acts set out to do but missed
ii. Incomplete: did some of acts but did not finish them
c. Common law
i. Mens rea required for attempt (specific attempt)
 1. Intent to perform the actus reus i.e. the conduct that is the attempt
2. Intent to commit the crime itself i.e the crime that is the goal of the
attempt
ii. Tests
1. Physical proximity: “Almost immediately”
2. Dangerous proximity: balance seriousness of crime, likelihood,
and proximity
3. Indispensable element: What remains to be done?
4. Probable desistance: Unlikely that defendant will stop?
5. Res ipsa loquitur (Unequivocality): would reasonable person do
these public acts if not trying to commit crime?
d. MPC § 5.01 – attempt
i. Circumstances: were they as actor believed them to be OR
ii. Result: purpose or belief OR
iii. Conduct: substantial step
1. Examples
a. Lying in wait or searching for victim
b. Enticing victim to place
c. Reconnoitering place of crime
d. Unlawful entry into structure where crime will take place
e. Possessing materials employed in crime
f. Possessing materials for crime at or near place of crime
g. Soliciting innocent person to help with crime
2. Must be strongly corroborative of criminal purpose
iv. *Requires less proximity than CL test*
e. Applications
i. Maestas: not good law (was minority view at the time anyway) – most
jurisdictions require higher mens rea for attempt to protect the innocent
1. Facts: Defendant allegedly robbed bank and attempted to escape
and drove past a Sergeant who was waiting for him. Sergeant shot
defendant’s van and Defendant shot into Sergeant’s car.
a. Charge: attempted first degree murder (“intentionally or
knowingly causes death of another . . . While engaged in a
robbery . . . Homicide was committed for the purpose of
avoiding or preventing an arrest by a peace officer . . . Or
for the purpose of effecting an escape from lawful
custody”)
b. Attempt: “guilty if acting with kind of culpability required
for offense, he engages in conduct constituting substantial
step towards commission of offense”
c. Does he need specific intent for first degree murder?
ii. Case: Robert Jackson
1. Facts: Jackson and others plan to rob a bank.
 a. Have car and supplies.
b. 1st effort: abandon plan because arrive too late.
c. 2nd effort: abandon plan because worried about FBI.
2. MPC Charges?
3. 5.01: Substantial Step?
a. Mandujano: attempt liability required that actor’s conduct
“constitute a substantial step toward the commission of
crime.” “mere preparation” is not enough but requires
“positive acts”
iii. Commonwealth v. Peaslee: INSURANCE FRAUD
1. Asked employees to start fire by lighting candle
f. Defenses to attempt
i. Abandonment/renunciation
1. Now jurisdictions are split on whether to recognize abandonment
of an attempt, and some only allow defendant to prove she didn’t
establish ‘substantial steps’ or one of the common law tests.
2. Trend is to recognize this defense
3. CL requirements
a. Voluntary decision: not due to extrinsic factors
b. Complete decision: entire decision of committing crime is
given up, not just this time
c. Prevent commission of target crime (if accomplices
d. are still doing, you must try to stop them)
i. Majority rule: Actually stop crime
ii. Minority rule: make best efforts to stop crime
4. MPC – 5.01(4)
a. Renunciation is an affirmative defense if defendant
abandons decision to commit crime where it is complete
and voluntary.
b. It is voluntary and complete if not based on external
circumstances or a decision to postpone the crime or
transfer to different victim.
5. Application: Hypo #47: guy was going to break out of prison then
decided not to
a. Attempted escape under MPC – substantial steps since he
was not where he was supposed to be within prison; he
packed a bag of clothes for escape
b. Renunciation defense under MPC 5.01(4)
ii. Impossibility
1. CL: two types
a. Factual: typically not a defense, where crime is impossible
to complete because eof some physical or factual condition
unknown to D
 i. Picking an empty pocket
ii. Attempt to steal from empty receptacle or empty
house
iii. D shoots victim believing he is there but victim is
elsewhere
iv. D erroneously believed gun is loaded and points at
wife’s head and pulls trigger
b. Legal: is a defense, act if completed would not be criminal
i. Accepting goods he believes to be stolen but where
goods are not stolen
ii. False testimony would have been immaterial to case
not perjurious
iii. Accused who offers a bribe to person believed to be
juror but who is not a juror
c. KEY QUESTION: What they are attempting, if completed
as planned, actually a crime? If yes, then they are culpable
for attempt (no imp def). If not, they are not culpable.
2. MPC rejects impossibility – BUT 5.05(2)
a. The Model Penal Code disallows factual impossibility as a
defense by stating that conduct is an attempt when the
defendant “purposely engages in conduct which would
constitute the crime if the attendant circumstances were as
he believes them to be...” etc Model Penal Code § 5.01(1)
(a).
b. INSTEAD 5.05(2): not an affirmative defense, but could be
mitigation in sentencing or up to discretion of judge
3. Imaginary offenses: actor thinks some act is a crime but it is not a
crime at all (legality issue), but there is no law against what actor is
doing  no liability
4. Applications
a. People v. Rollino: NY court says bc property was not taken
without consent of owners, attempt liability couldn’t be
imposed where commission of substantive offense is
impossible
b. John Henry Ivy
i. Facts: Judge Gardner sentences Ivy to 40 years for
minor offenses. Ivy gets his brother Leroy to call
Judge’s housekeeper to get some personal items
(old picture and hairbrush) to put death hex on
Judge. Housekeeper refuses and works with
authorities in sting operation to stop voodoo.
ii. Probably factual impossibility (weird line to draw)
– voodoo can’t cause death
 iii. Charge: brothers charged with murder with malice
aforethought
iv. Mississippi Law:
1. §97-3-19(1)(a)&(2)(a): Conspiracy to
commit capital murder
2. §97-1-7 Attempt
3. §97-1-1(a) Conspiracy
v. Stokes v. Mississippi: impossibility defense applies
where “it is inherently impossible to commit the
crime”
c. #61: Smuggler’s deceit
i. Facts: Watson and So are both smuggling sugar that
they think is illegal to bring into England. So tells
Watson he has drugs and Watson takes So’s bag but
then leaves it in line getting nervous at the last
minute. Both caught with sugar which is not illegal
to bring into the country.
1. What charges for Watson and So under the
CL impossibility doctrine?
2. What charges under the MPC?
3. Watson and So Variations
a. If Watson and So are both smuggling
ACTUAL drugs but the customs gate
has just closed for a security alert
when they reach it
b. Watson and So smuggle sugar across
thinking it is drugs but it is actually
sugar
c. Watson and So are carrying sugar
which they believe is a crime but it is
not a crime
d. Watson and So want to smuggle in
illegal drugs by “mind
transportation” that they learned
from Star Trek
XIV. Conspiracy (375-406)
a. MPC § 5.03(1) & (5)
i. 5.03(1) Definition of Conspiracy. A person is guilty of conspiracy with
another person or persons to commit a crime if with the purpose of
promoting or facilitating its commission he:
1. 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
 2. agrees to aid such other person or persons in the planning or
commission of such crime or of an attempt or solicitation to
commit such crime.
ii. Knowledge as to the result is not enough, need PURPOSE
1. OPEN QUESTION on how to analyze purposeful in a given fact
pattern
a. Conscious object that crime results (individual purpose in
D’s head) OR
b. Elevate mens rea requirement of elements of crime to
purposeful
i. Then knowing would also be enough under MPC
c. Could have different outcomes
iii. 5.03(5): No person convicted of conspiracy other than first or second
degree felony, unless overt act is alleged and proved
1. If a less serious felony, need proof of overt act
b. MPC charging for conspiracy
i. § 1.07(1): under MPC, you can’t be convicted of both conspiring to
commit X & committing X
1. BUT can be convicted of attempt & conspiracy
c. Limits on conspiracy liability
i. Wharton’s Rule: crime by nature requires agreement of two people to
engage in conduct so no additional conspiracy charges can apply
1. Gambling, bribery, extortion, sale of stolen property, unlawful
restraint of trade, simple drug sales
ii. Defense: abandonment/renunciation
1. Similar to attempt
2. Common law: must show complete and voluntary withdrawal and
affirmative act showing person is leaving the conspiracy— either a
communication with coconspirators, efforts to stop crime, or
notifying authorities
3. MPC 5.03 (6) & (7): Affirmative defense demonstrated when a
“complete and voluntary renunciation of criminal purpose”
a. Conspiracy continues unless abandoned.
i. Abandonment is assumed if no overt act is done
AND
ii. Person abandons the conspiracy as to him only if he
advises conspirators of his abandonment and
informs police of conspiracy and his participation.
b. PRESUME ABANDONMENT when no overt act within a
certain timeframe
iii. Applications: Problems: #55 (Rahman); #56; #57; #58
 DOCTRINES OF IMPUTATION
An actor may be liable for an offense even though she does not satisfy all offense elements if a
rule or doctrine imputes the missing element

XV. Intoxication (421-441; 772-773)

a. Any substance
b. CL: Two types
i. Voluntary or Self-Induced: Defendant is culpable for becoming
intoxicated (only sometimes a defense)
1. Specific Intent Crimes: Defendant did not form specific intent
because intoxicated
2. Voluntary Act (rare): so intoxicated that did not make voluntary
movement
3. Insanity (rare): Defendant claims so intoxicated that he was
“insane”
a. Temporary insanity: disappears when defendant is not
under the influence
b. Fixed insanity: continues when defendant is not under
influence
ii. Involuntary: defendant is not culpable for becoming intoxicated (defense
to all crimes)
1. Coerced Ingestion: forced by another to ingest drugs
2. Accidental Ingestion: unexpectedly becomes intoxicated by
accidentally ingesting drugs or alcohol
3. Prescribed Medication: A person unexpectedly becomes
intoxicated by ingesting prescribed medications -- without
knowing that they will have an intoxicating effect.
4. Pathological Intoxication: person unexpectedly becomes
intoxicated by ingesting a small amount of alcohol, which triggers
a temporary psychotic episode -- without knowing that they will
have an intoxicating effect.
c. MPC § 2.08(5): two types
i. “Self-induced intoxication” means intoxication caused by substances
which the actor knowingly introduces into his body, the tendency of which
to cause intoxication he knows or ought to know, unless he introduces
them pursuant to medical advice or under such circumstances as would
afford a defense to a charge of crime.
1. Basically the same as voluntary intoxication EXCEPT MPC gives
defense for prescribed medication even if you know its
intoxicating effects
 ii. “Pathological intoxication” means intoxication grossly excessive in
degree, given the amount of the intoxicant, to which the actor does not
know he is susceptible.
1. Tracks CL definition
d. MPC Intoxication defense: three situations
i. When intoxication negates an element of the offense [MPC § 2.08(1)]
1. UNLESS the mens rea is recklessness, then if the defendant would
have been aware of the risk if sober, then he is still responsible
ii. When intoxication is pathological or not self-induced, and it renders the
defendant “insane” [MPC § 2.08(4)]
iii. When it negates the voluntary act requirement [MPC § 2.01]
1. Actus reus
2. Example: falling down drunk through the door of a house, not
burglary (review question March 15)
e. Application: Problems: #60 (Weaver); #61; #62; #63; #64
f. Issue: Voluntary Intoxication as a Defense (pp. 442-448)
XVI. Complicity (pp. 449-474)  different than conspiracy
a. Complicity v. conspiracy
i. Conspiracy: inchoate offense; crime completed (and conspirators liable)
upon satisfaction of conspiracy offense elements
ii. Complicity: imputation doctrine; accomplice liable only to the extent of
completed offense (and assuming he meets other complicity requirements)
b. Categories
i. Principal in the first degree (physically commits offense)
ii. Principal in the second degree (present at scene to help)
iii. Accessory before the fact (not present at scene but aids, counsels, instructs
or encourages)
iv. Accessory after the fact (not at scene but assists criminal in avoiding
arrest, trial, conviction or punishment)
c. Common law
i. Actus reus for accomplice liability
1. Physical conduct: providing instrument, get away car
2. Psychological influence: inciting, soliciting, encouraging
3. Failure to prevent: if you have legal duty and fail to stop crime
(parent, police officer)
ii. Mens Rea for accomplice liability
1. Intent to assist the principal in committing an act, and
2. Intent to commit the requisite crime, and additional crimes that are
foreseeable consequences of first crime
iii. Culpability requirements
1. Intentional
a. US v. Peoni: purposive toward aim of criminal venture
 b. Backun v. US: complicity not based on having a stake in the
offense but on aiding perpetrator. Enough to know
perpetrator’s plan.
d. MPC § 2.06
i. Similar Actus Reus requirements to common law
ii. Culpability requirements as to conduct: “purpose of promoting or
facilitating the commission of the offense” [2.06(3)(a)]
iii. Culpability as to result: “sufficient for the commission of offense”
[2.06(4)]
1. ***crux of different between MPC & CL***
e. Causing crime by an innocent
f. Defense to complicity: withdrawal
i. CL
1. Complete and voluntary withdrawal of support AND Some attempt
to neutralize or thwart crime, including notifying authorities
ii. MPC § 2.06
1. No longer liable if
a. he terminates his complicity prior to the commission of the
offense AND
i. wholly deprives it of effectiveness in the
commission of the offense (UNDOES THE HELP
PROVIDED) OR
ii. gives timely warning to the law enforcement
authorities or otherwise makes proper effort to
prevent the commission of the offense.
g. Application: Problems: #65 (Law); #66; #68; #69; #70

JUSTIFICATION DEFENSES (AFFIRMATIVE)

SELF-DEFENSE, NECESSITY, DURESS, PUBLIC AUTHORITY

XVII. Public authority (573-594)

a. Deadly force
i. Two common justifications
1. Making an arrest
2. Crime prevention
ii. Common law: could use deadly force to arrest any felon or to prevent
commission of any felony
1. Never justified in misdemeanor situations
iii. MPC: generally, deadly force only justified to arrest felons who used or
threatened force, or who pose substantial risk of harm to others
 1. OR to prevent crime that will cause death or serious physical
injury
2. Most states impose similar restrictions
iv. MPC § 3.07(2)(b): deadly force to effect an arrest
1. Arrest is for a felony
2. Person effecting the arrest is a peace officer
3. Force used doesn’t cause substantial risk of injury to innocents
4. Crime leading to arrest involves use or threatened use of deadly
force, or substantial risk person to be arrested will cause death or
serious bodily harm if apprehension delayed
v. Application
1. Officer Hymon
a. Tennessee liability:
i. First deg murder?
ii. Second deg murder?
1. Morelock: all homicides are presumed to be
malicious, in the absence of evidence which
would rebut implied presumption
2. Leake: presumption of malice was rebutted
where suddenness of encounter, violence of
victim, and dangerous nature of victim’s
weapon
iii. Manslaughter
iv. Bouie: held it is a violation of fair notice when a
statute that is “precise on its face”
b. Actual result
i. Grand jury refused to indict relying on § 40-808
ii. SCOTUS found that statute unconsistutional
iii. S Ct bars deadly force against fleeing, apparently
unarmed suspects.
iv. Deadly force permissible only if probable cause to
believe that suspect poses significant risk of death
or serious physical injury to officer or others
2. Scott v. Harris:
a. S Ct says actions serious risk
b. Actions were reasonable
c. Construing facts in light most favorable to Harris
d. Necessary to incorporate evidence of tape
b. Requirements for defense: 4 requirements
i. Specific authorization (statute)
1. Explicit
2. Not limited to police officers
a. Medical
 b. Parental (MPC § 3.08)
c. Judicial
d. Military
ii. Evocation (triggering circumstances): particular circumstances evoke need
for action
iii. Response is…
1. Necessary: states disagree over standard but agree with general
requirement
a. Three state views
i. Actor believes it was necessary
ii. Actor reasonably believes it was necessary
iii. Action was actually necessary
b. Necessity example: Alton Sterling
2. Proportional: force used must be proportional to importance of
interest at stake
a. Proportionality Ex: Tashii Brown
c. Other applications
i. Graham v. Connor: reasonable use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight
1. Loosens up limits on police use of force
2. Consider
a. “Severity of the crime at issue”
b. “Whether the suspect poses an immediate threat to the
safety of the officers or others”
c. “Whether he is actively resisting arrest or attempting to
evade arrest by flight”
ii. Hypo #85: aggressive fishing
1. Durham trying to arrest Long and Hammond who are fishing
illegally. Long ends up hitting Hammond multiple times with oar
while they try to get away. After repeated warnings, Durham
shoots Long.
2. MPC – D under 3.0
a. Once hit in head with oar, allowed to defend himself
b. Even though public authority defense falls through, there
are still other defense arguments (self-defense)
3. Justified
iii. Rodney King: flees police because he doesn’t want a parole violation.
When stopped, he refuses to follow orders to get on ground. Officers
(including Koon) beat King
1. MPC
2. Public authority justification
XVIII. Necessity (545-555)
 a. Examples
i. Stealing car to get someone who is dying to the hospital
ii. Speeding to get pregnant woman to doctor
iii. Trespassing to avoid freezing to death
iv. Stealing food to avoid starving during hurricane
v. Burning private field to avoid housing development from burning down
b. Common law
i. Defendant acts to avoid significant risk of harm
ii. No lawful means to escape harm (necessary; temporal consideration)
iii. Harm avoided was greater than that caused by breaking law
(proportionality)
c. MPC Summary  See § 3.02
i. Accused believes that conduct will avoid harm or evil to himself or
another that is greater than the harm caused.
ii. When accused is reckless or negligent in bringing about situation, this
defense is not available.
d. Applications
i. Problems: #76; #78; #80; #83
XIX. Duress (775-776)
a. Examples
i. Forcing a person to commit a crime at gunpoint
ii. Forcing person to smuggle drugs by threatening family
iii. Committing perjury at trial due to fear of gang retribution
b. Common law (4 elements)
i. Threat of serious bodily harm or death
ii. Well-grounded fear that threat will be carried out
iii. The threat must be immediate and inescapable
iv. The defendant must have become involved in the situation through no
fault of his or her own
c. MPC Summary  See § 2.09
i. Defendant committed offense due to unlawful force that a reasonable
person would not be able to resist.
ii. No defense if recklessly or negligently put himself into situation that
would subject him to duress.
d. Duress limitation
i. Arizona (majority rule): A.R.S. § 13-412(c): “The defense provided by
subsection A is unavailable for offenses involving homicide or serious
physical injury.”
1. Majority Rule: Duress is not a defense to homicide.
e. Applications
i. United States v. Contento-Pachon (on D2L)
ii. #108
XX. Defensive Force (605-634)
a. Self-defense
i. Common law:
1. 4 elements
a. Imminence: imminent threat
b. Necessity: necessary to save himself
c. Proportionality: deadly force can only be used to prevent
deadly force
d. Reasonableness: objective, as well as subjective
2. Deadly aggressor has no right of self defense generally
a. UNLESS withdraws and
b. Informs opponent of withdrawal
3. Nondeadly Aggressor: no deadly force allowed unless withdraws
first
a. MAJORITY: If nondeadly aggressor is confronted with
deadly force, no duty to retreat and can defend herself.
b. MINORITY: If nondeadly aggressor, must first retreat and
if still threatened can use nondeadly force (MPC rule too)
4. Duty to Retreat
a. MAJORITY RULE: Defendant has right to stand ground to
aggressor even when it is safe to retreat, in his home, and
elsewhere.
b. MINORITY RULE: Defendant has to retreat when
confronted with aggressor when safe to do so except when
at his home (Castle doctrine).
ii. MPC § 3.04
1. Use of force against another person is justifiable if immediately
necessary to protect himself against unlawful force
2. Deadly force not justifiable UNLESS actor believes such force is
necessary to protect himself against death, serious bodily harm,
kidnapping or sexual intercourse compelled by force of threat
AND is not justifiable if:
a. Actor provoked use of force with purpose of causing death
or serious bodily harm
b. Actor knows he can avoid necessity of force by retreating
EXCEPT he does not have to retreat from home or work
UNLESS he was initial aggressor.
3. ***NOTE: Necessity is considered under circumstances as he
believes them to be when force is used***
iii. Differences between CL & MPC
1. Imminent threat (CL) v. immediately necessary (MPC)
2. Objectively reasonable (CL) v. necessary from viewpoint of the
actor (MPC)
 3. If nondeadly aggressor is confronted with deadly force, no duty to
retreat and can defend herself (CL MAJORITY) v. If nondeadly
aggressor, must first retreat and if still threatened can use
nondeadly force (MPC and CL MINORITY)
iv. Applications
1. Problem #88 (Goetz)
a. MPC possible charges
i. §210.2(1) & §5.01(1)(b) Attempted Murder
ii. §211.1(2)(b) Aggravated Assault
iii. §210.3(1)(b) Manslaughter due to extreme
emotional disturbance
iv. §3.04 and §3.04(2)(b) Self Defense
v. Read §3.09(1) & (2)
b. Defense of others
i. Common law
1. Majority: A person’s right to defend another is the same as what
she believes that person’s right to defend herself is.
2. Minority: Person may only defend another if her belief is correct
and that person actually had a right to defend herself.
ii. MPC § 3.05: defense of others
1. Person may defend another based on a genuine, reasonable belief
that the person has a right to defend herself.
2. Person does not have to retreat if he does not believe the person
has to retreat unless it is safe to do so. No need to retreat from a
person’s home.
c. Defense of property and home
i. Common law
1. In general, a person may use deadly force to defend an imminent
attack on her home.
2. A person may not use deadly force to prevent theft under any
circumstances, even if it is the only means of preventing the theft.
a. In limited circumstances, a person may use non-deadly
force to prevent an imminent, unlawful theft.
ii. MPC § 3.06: defense of property
1. Person may use nondeadly force to protect property if immediately
necessary to prevent trespass on land or in fresh pursuit.
2. Deadly force may be allowed if the person is attempting arson,
burglary, robbery or other felonious theft or if the person has used
deadly force.
d. Application:
i. #89; #90;
ii. Defense of fetuses: Problem #92
XXI. Mistake as to Justification (646-668): when you think you’re justified but you’re wrong
a. Justification or excuse?
i. Justification: conduct
ii. Excuse: individuals
1. Conduct may not be justified but we excuse certain individuals
b. MPC Formulation
i. No defense if:
1. Actor’s belief regarding [un]lawfulness of triggering event is
wrong, and based on ignorance or mistake of law.
2. Actor’s belief in necessity is reckless or negligent, so long as
recklessness or negligence is sufficient mens rea for charged
offense.
3. Actor recklessly or negligently injures or creates risk of injury to
innocent people, so long as prosecution is for recklessness or
negligence toward innocents.
ii. Defense if reasonable (non-negligent) mistake as to justification 
partially individualized objective standard of negligence
c. Common law: not a coherent approach across country
i. Majority rule
1. Person’s conduct is excused if reasonable belief that factual
situation is such that conduct is necessary and appropriate for any
purpose that would establish a justification defense
2. No defense if:
a. Erroneous belief in unlawfulness of force defended against
OR lawfulness of arrest he is attempting to make
b. Error is based on ignorance or mistake of law
i. Mirrors MPC
ii. People v. Young: D saw two people beating black teenager. Turn out they
were undercover officers making lawful arrest. D wouldn’t have gotten
involved if he knew they were officers.
1. Held: reasonableness of mistake doesn’t matter. No defense for
Young bc arrestee had no right to defend himself from lawful
arrest.
d. #94: Moro would have a defense for trying to kill
i. Unlawful force but justified?
ii. MPC language confusing: used justified too broadly (not written well)
1. Parts of code talk about justified conduct that can still be unlawful
a. Meaning 1: Conduct that is in fact justified
b. Meaning 2: Conduct that is not objectively justified but that
actor believes is justified (mistakenly justified)
c. KEEP TRACK OF EACH SO YOU KNOW WHO CAN
RESPOND
2. “Privilege”  § 3.11(1) – tort concept
a. Define unlawful force
 b. Unlawful force = unprivileged force
e. Application: Problems: #93 (Jahnke); #94; #96; #97
f. Issue: Battered Woman Defense (pp. 671-678)
XXII. Insanity (pp. 713-740): absolves culpability in two ways  failure of proof OR excuse
a. Common law
i. M’Naughten rule: A person is insane when as a result of a mental disease
or defect he does not know either
1. the nature and quality of the act OR
2. that such act was wrong
ii. Irresistible impulse: A person is insane if they can show that as a result of
mental disease or defect they could not resist the impulse to commit the
crime of which they are accused, due to an inability to control their
actions.
iii. Durham (Product) test: A person is insane and not responsible for
unlawful acts that are the product of a mental disease or defect.
b. MPC formulation  combines M’Naughten & Irresistible Impulse
i. § 4.01: Substantial capacity test
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 of his conduct OR
b. To conform his conduct to the requirements of law.
ii. § 4.02: evidence of mental disease or defect
c. Application: Problems: #102 (Goldstein); #103; #105
XXIII. Nonexculpatory Defenses (803-829): cases where we acknowledge D’s guilt but
otherwise exonerate them due to another interest (not excuse or justification)
a. Where criminal liability deviates from moral desert
i. Ex: deterrence, incapacitation, strict liability, reasonable mistake of law
b. Doctrines
i. Double jeopardy: protected by 5th amendment
1. Not nearly as protected as you think
a. Separate sovereigns (tribal & federal; state & federal)
b. Blockburger test: set the standard for when charging two
crimes violates DJ (permissive)
2. MPC § 1.08
3. Problems: #116 (Ignatow): D rapes and kills V and hides evidence
a. Charged him with perjury as new offense
ii. Exclusionary rule: rooted in effort to protect constitutional rights but not
constitutionally mandated
1. Remedy for violations of the constitution
2. Rooted in deterrence
iii. Diplomatic immunity (extremely uncommon): based on federal law and
treaties
 1. Supersedes state law
2. Can be waived by country that controls diplomat
3. Balance: Moral desert v. harm to international relationships
iv. Statute of limitations
1. Most common issue: tolling
2. Continuing offenses or sequence of separate crimes
a. Ex: tax evasion – each time they hid money or is it a
continuing offense
3. How long is appropriate?
4. Application
a. Problem #117: too late for justice?
i. MPC: can’t be charged bc SoL timeframe has
passed
5. Issue: Statutes of Limitations (pp. 829-833)
c. Legality principle
XXIV. Entrapment (non-exculpatory defense)
a. Common law  SUBJECTIVE  FOCUS ON D
i. Induce person to commit a crime that he was not otherwise disposed to
commit
ii. Focus is on defendant
iii. Both prior behavior and response to police inducement
b. MPC  OBJECTIVE  FOCUS ON LAW ENFORCEMENT
i. Police conduct “creates a substantial risk that such an offense will be
committed by persons other than those who are ready to commit it.” [§
2.13(1)(b)]
ii. Focus on police conduct
iii. Doesn’t matter whether or not the individual defendant was predisposed
c. Application
i. U.S. v. Russell
1. D runs meth lab. Undercover agent posing as member of crime
syndicate proposes trading needed ingredient for share of profit. D
agreed and gave agent meth. D convicted at trial. Conviction
overturned on appeal.
2. Holding: S. Ct. reverses, holding that entrapment defense limited
to those not otherwise predisposed to commit the crime
d. Due process  ANALYZE ON FINAL
i. DP violation if police conduct is so outrageous that it shocks the
conscience
ii. Constitutional limitation: exists no matter what entrapment test the
jurisdiction uses
iii. See Hypo 122
e. Further application
i. Case: John DeLorean
 1. MPC Analysis: Did government agents “employ methods of
persuasion or inducement which created a substantial risk that such
an offense will be committed by persons other than those who are
ready to commit it”?
a. His entrapment argument emphasized that he was
threatened when he tried to back out of a deal
b. Jury acquitted
ii. Hypo #120: a pickpocket sting
1. Police officer poses as passed out drunk with cash sticking out of
pocket
2. Hawkins takes the bait and gets arrested
iii. Hypo #121: government as pornographer
1. 56-year-old Jacobson likes child porn and orders two magazines
that are legal at the time. After law passes criminalizing receipt of
child porn through mail, postal inspector sends Jacobson a number
of fake mailers in effort to get him to order more child porn.
Jacobson ultimately orders a magazine and gets arrested when it’s
delivered.
2. S. Ct. reverses conviction holding that prosecution failed to prove
predisposition and gov’t exerted tremendous pressure on Jacobson
iv. Hypo #122: undercover trolling at AA meeting
1. Undercover agent seduced woman at AA meeting, convinced her
to leave husband, convinced her to do a drug deal, etc.
2. Court found violated DP
XXV. Rape (869-890, 897-900)
a. Common law rape
i. “The carnal knowledge of a woman forcibly and against her will”
ii. Elements
1. Sexual intercourse
2. With a woman
3. By force or threat of force
4. Against her will and without consent
5. AND Utmost resistance to the attack
iii. Marital Exemption
b. Traditional rape statutes
i. Forcible rape is “sexual intercourse” achieved
1. By force or threat of force and
2. Against the women’s will or without the woman’s consent
ii. No resistance necessarily
iii. What does force mean?
c. Reformed rape statutes
i. They include sexual intercourse with someone who is unconscious,
drugged, or otherwise unaware.
 ii. They include other forms of penetration, such as oral or anal sex.
iii. They narrow or abolish the marital immunity rule.
iv. Many are gender-neutral.
v. And verbal resistance is enough to show a lack of consent “no means no”
vi. See Arizona Reformed Rape Laws
1. Marital note: still defense to sexual abuse (short of sexual assault)
d. MPC Rape  See MPC § 213
i. § 213.1(1): Rape
ii. §213.1(2): Gross Sexual Imposition
iii. §213.4(1): Sexual Assault
e. Application
i. Problems: #123: Eric Carlson
1. Eric is 11th grader who is 16. He asked “Jane” who is 17 if she
wants to go for a ride. They ride together and they “make out and
stuff.” Two weeks later he calls her again and they do same
activities. He wants sex, she says no and he does it anyway. She
doesn’t resist physically or push him away. She reports rape.
f. Fraud in Rape: Consent obtained by force or threat is not valid consent. If a
person misleads another to agree to have sex, that is rape by fraud.
i. Fraud in Factum (person does not know it is sexual intercourse)
ii. Fraud in Inducement (person believes circumstances around sex are
different than they are)
iii. Ex: Boro v. Superior Court
1. Woman gets call from “Dr. Stevens” who says she has disease that
can only be cured by expensive painful procedure or a donor
injected serum with sex. He makes arrangements for a hotel that
she pays for and has sex with her.
iv. Application: Problem #124
1. Clark mixes cocktails for William. Clarks says they have “G” but
William hears “gin.” William passes out and Clark has anal sex
with him.
g. Issue: Consent Requirements for Rape (pp. 900-909)
i. What should we require for rape?
ii. Force?
iii. Affirmative non-consent?
iv. Lack of affirmative consent?
XXVI. Theft (911-941)
a. Larceny
i. Common law: taking without consent and with desire to keep item
1. Trespassory (without consent)
2. Taking from owner and
3. Carrying away (asportation)
4. Of the personal property
 5. Of another person
6. With intent to permanently deprive owner of it
ii. MPC § 223.2: Theft by Unlawful Taking
1. A person is guilty of theft if he
a. Unlawfully takes
b. Movable or unmovable property
c. Of another
d. With purpose to benefit himself or another not entitled to it
b. Larceny by Trick
i. Common law: gain possession by fraud
1. Inducement of possession by fraud
2. Conversion (taking something not yours to be your own)
3. Intent to permanently deprive
ii. MPC § 223.3: Theft by Deception
1. A person is guilty of theft if he purposely
a. Obtains property
b. Of another
c. By deception
c. Embezzlement
i. Common law: lawful possession but unlawful conversion
1. Obtain (lawful) possession*
2. Fraudulent conversion (usually requires entrustment with property)
3. Intent to convert to personal use
4. *Possession is not custody, they are different
ii. MPC 223.2(1): Theft by Unlawful Taking
1. A person is guilty of theft if he
a. Exercises unlawful control (possession) over
b. Movable or immovable property
c. Of another
d. With purpose to deprive him thereof
d. False pretenses
i. Common law: obtaining title to property not possession through fraud
1. False pretense or representation
2. Obtain title
3. Intent to defraud
4. This is relied on by person defrauded
ii. MPC 223.3: Theft by Deception
1. A person is guilty of theft if he purposely
a. Obtains property of another
b. By deception (including creating a false impression, failing
to correct a false impression or preventing another from
getting information which would affect her judgment of the
transaction)
 e. Robbery
i. Common law: use of force or fear to take property
1. Taking the property of another
2. With the intent to permanently deprive the person of that property
3. By means of force or fear
ii. MPC § 222.1: Robbery
1. A person is guilty of robbery if, in the course of committing a
theft, he:
a. inflicts serious bodily injury upon another; or
b. threatens another with or purposely puts him in fear of
immediate serious bodily injury; or
c. commits or threatens immediately to commit any felony of
the first or second degree.
iii. Goose example: robbery and threatening danger to goose
iv. Topolewski v. State
f. Application
i. Problems: #125
ii. Problem #126
iii. Problem #129: empty bank account
1. Court affirmed conviction for theft by false pretenses reasoning
that Safeway relied on false pretenses
iv. Bernie Madoff
1. MPC § 223.6: Receiving stolen property
XXVII. Possession Offenses (957-976)
a. Possession = physical control + knowledge
b. Actual vs. Constructive Possession
i. Constructive possession extends liability beyond person holding some
item
1. Constructive possession = knowledge of presence + power to
control + intent to control
2. More than one person may have constructive possession of a single
thing
ii. Transitory possession
1. Mijares (CA): “possession...does not include merely handling for
only brief moments prior to abandoning the narcotic”
2. MPC 2.01(4): “...sufficient period to have been able to terminate
his possession”
3. Example: Mijares picks up his friend Rodriguez, who appears
drowsy (likely from heroin use). As they drive, Rodriguez loses
consciousness, and Mijares pulls into a parking lot. Mijares slaps
Rodriguez a few times to revive him. That doesn’t work, so he
decides to take Rodriguez to the hospital. First, Mijares checks
whether Rodriguez still has any drugs on him. When he finds some
 heroin in a pocket, Mijares removes it and tosses it into a field. He
then takes Rodriguez to the hospital, where he is resuscitated.
a. Accessory after the fact?
b. Obstruction of justice?
4. Example: hot potato with two felons and gun
iii. Mere presence:
1. Jury Instructions Federal: “Mere presence at the scene of a crime
or mere knowledge that a crime is being committed is not
sufficient to establish that the defendant committed the crime.”
AZ: “Guilt cannot be established by the defendant’s mere presence
at a crime scene, mere association with another person at a crime
scene or mere knowledge that a crime is being committed.”
2. Example: Jackson is the passenger in a car stopped by police
officers. There is a strong smell of marijuana coming from inside
the car, and a search turns up four pounds of marijuana hidden in
the plastic housing of the gear shifter, under the center console.
The car does not belong to Jackson, and he explains the driver was
just giving him a ride because Jackson’s license was suspended.
Jackson appears nervous during questioning.
c. Possession of a firearm
i. Type of weapon: E.g., machine gun, sawed-off shotgun
ii. Class of people who may not possess any weapon: E.g., convicted felon,
habitual drug user, nonresident alien
iii. Context in which weapon was possessed: E.g., in furtherance of a drug
offense
d. Application
i. Problem #130 (Angelos): firearm possession
ii. Problem #131: cocaine possession
iii. Problem #132: mushrooms
e. Issue: Criminalizing Possession without Harm (pp. 977-983)