CRIMINAL LAW OUTLINE

I. History
A. Malums:
1. Malum in se: bad in itself (rape, murder, robbery)
2. Malum prohibitum: actions that are illegal because the
public has made a judgment to punish it
a) Criminal Law guides social behavior by
imposing consequences
B. Sources of Criminal Law
1. Common law
a) Roots of Criminal Law
b) Modern Day is now Codified in Statutes
(1) Late 19th century legislatures began to
write statutes
(a) Legislative shift has led to over
criminalization
(i) 2.3 million people in jail
(ii) 1/100 persons in jail
(iii) 1/31 on probation
2. MPC
a) 1952 American Law Institute drafted MPC
(1) Used to clear away inaccuracies
(a) Ideal standard to charge crimes
(i) “Best practice”
(2) Many states rely on MP to determine
case outcomes and approach
issues/draft statutes
(a) Tennessee adopted MPC in 1989
(i) But changed a few
provisions
C. Guiding Principles
1. Legality
a) “nullum crimen sine lege, nulla poena sine
lege” or “no crime without law, no punishment
without law
(1) A crime must exist at the time of charge;
cannot retroactively charge
(2) US Constitution expressly forbids
adopting ex post facto laws
 b) Three related concepts
(1) Criminal statutes should be
understandable
(2) Criminal statutes should not delegate
basic policy matters to police, judges,
juries on an ad hoc and subjective basis
(3) Judicial interpretation of ambiguous
statutes should favor the accused
c) Statutory Construction
(1) Interpretation:
(a) Presume constitutional
(b) Strike statute down when they
cannot save it or it violates the
Constitution
(2) Strict construction allows for clear and
plain meaning
(a) Unclear language the court will
look at:
(i) Legislative intent
(ii) Phraseology
(iii) Purpose
(iv) End to be accomplished
(v) Common law
(vi) Remedy, etc.
d) Standard of Proof
(1) “Proof beyond a reasonable doubt”
(a) Every element of a crime
(i) High stake consequences
as opposed to civil cases
(a) Vs. Standard of
Proof in civil cases
(i) “By
preponderan
ce of the
evidence”
D. Theories of Punishment
1. Retribution
a) Most popular in US
b) Punishment regardless of deterrent potential
2. Deterrence
 a) Specific
(1) Attempt to deter the individual (multiple
repeat offender)
b) General
(1) Make an example of
(2) Others in society will know the
consequences
3. Incapacitation
a) Might not be able to deter or rehabilitate but
can wholly prevent from committing a crime
when incarcerated
(1) Dominant theory in 80’s and 90’s
against drug offenders
4. Rehabilitation
a) Idea of parole boards
b) Rehabilitate person into a functioning and law
abiding citizen
E. Sentencing
1. Indeterminate Sentencing
a) I.e. 10-20 years
(1) Parole Board
(2) Idea of Reformation/Rehabilitation
2. Determinate Sentencing
a) I.e. 20 years guaranteed
(1) Rehabilitation not considered
F. Components of a Crime
1. Actus Reus
a) Physical and external part
(1) Conduct and result/harm
(2) Act or Omission
(a) Voluntary
(b) Omissions are “negative acts”
b) MPC Actus Reus
(1) Voluntary act is require or omission of
an act which he/she is physically
capable of
2. Mens Rea
a) Mental/internal ingredient
(1) intent
3. Causation
 a) ONLY in harm offenses
b) Link between the act and the harm
G. Also to consider:
1. Attendant Circumstances
a) Must be present/simultaneous with criminal
act/conduct
(1) Part of the actus reus
(a) Specific elements
(b) I.e. Drunk driving
(i) Actus Reus: driving and
intoxicated
(ii) Mens Rea: intent
(iii) Attendant Circumstances:
driving an automobile
while intoxicated

II. ACTUS REUS

A. A physical Act
1. Omission or Failure to Act
2. Volitionary
B. ACTS
1. The Queen v. Dudley and Stephens, 1884
a) Shipwrecked
(1) D’s killed a 16 year old boy to eat
(a) Other shipmate Brooks did not
concur
(2) The court found that the boy would have
died regardless (poor condition)
(a) Had the men not killed the boy,
they would not have survived
(b) Sentenced and pardoned (later in
news)
(3) There is no defense of “necessity” to
murder
2. People v. Doe, 1992
a) Convenient store owner shot and killed 14 year
old girl
(1) High crime area; frequently robbed
 (2) Thought victim was stealing orange
juice
(a) Altercation led to shots fired
(3) D attempted to introduce theory that she
had not pulled trigger (hair pin
trigger/more sensitive)
(a) Jury rejected theory bc they
found evidence of intent
regardless of the condition of the
gun
(4) Self-defense (primary theory) failed
(5) Judge weighed purposes of punishment
(a) Gave probation
3. Commonwealth v. Mochan, 1955
a) D was calling married woman
(1) Lewd and sexual harassment
b) Pennsylvania had a vague statute
(1) “Every offense punishable either by the
statutes or common of this
commonwealth and not specifically
provided for this act, shall continue to be
an offense specifically provided for by
this act”
(2) No direct law criminalizing obscene
telephone calls
(3) Court consider broad common law crime
(a) “Injuriously affect public morality”
(b) Applied this standard to convict
(i) Dissent argues that the
court created a crime
(ii) Violated legislative field
4. Keeler v. Superior Court of California, 1970
a) D “stomped-out” baby in ex-wife's stomach
(1) Child a result of an affair
b) Criminal Code stated:
(1) “Murder is the unlawful killing of a
human being with malice aforethought”
c) Court must consider whether an unborn child is
a “human being” within the statute
(1) Looks at history
 (a) Statute enacted in 1872 and at
the time an infant could not be
the subject of homicide unless it
had been born alive
(2) Then looks to MPC
d) Court considers due process and fair warning
(1) The issue is a matter for legislature
(2) Even if the court made it a crime today,
it would not change the outcome
because it cannot be retroactively
applied
e) D acquitted of murder
(1) State legislature changed the law after
the case to include fetuses
5. Martin v. State, 1944
a) Cops removed drunk man from home and
placed on highway
(1) Then charged with public intoxication
b) Court presumes voluntary act is a required
element
(1) D had not exhibited volition to be in a
public place
(2) Reversed
6. State v. Utter, 1971
a) Father is inebriated and stabs son to death
after the son approached him from behind at
home
(1) War veteran (PTSD)
b) D argues the voluntariness was not present
because his response was automatic
(1) Spasms are not voluntary
(a) Not enough evidence on the
record to support history of
spasms
c) Alternative theory: unconscious due to alcohol
ingestion
(1) Time framing issue
(a) D self-induced level of
drunkenness
 (i) Cannot attain a complete
defense
C. OMISSIONS
1. Negative Acts
a) Duty to Act?
b) People v. Beardsley, 1987
(1) D convicted of manslaughter of woman
he was having an affair with
(a) Spent all weekend drinking,
victim took morphine
(b) D left her in a stupor with a third
party
(2) Rule: liability must be a legal duty and
not just a moral duty
(a) D found guilty because he had
the duty of protector
(i) Negligently or willfully
jeopardized the life of
another
c) Jones v. United States
(1) Four instances where failure to act may
constitute a breach of legal duty
(a) Statute imposes a duty
(b) Status of relationship
(c) Contractual duty
(d) Where one has voluntarily
assumed the care of another and
so secluded the helpless person
that it prevented the person from
getting aid
(e) Also,
(i) If the person created the
risk or harm
d) Barber v. Superior Court, 1983
(1) Doctors sued for withdrawing life
support
(a) Omission of further treatment
(b) Rule: a physician has no duty to
continue treatment once it has
proven to be ineffective
 (i) Should be a medical call
(ii) Proportionate treatment: in
view of the patient,
treatment has at least a
reasonable chance of
providing benefits, which
outweigh the burdens
attendant to the treatment
(c) Holding: not an unlawful failure to
perform duty

III. MENS REA

A. Common Law
1. General Intent
a) Morally blameworthy mind
b) Implied by statute
(1) No specific language in text
2. Specific Intent
a) Malicious intention
(1) “intentional “ under CL means
(a) Purposefully, and/or
(b) Knowingly
b) Specific language in the text
B. Model Penal Code
1. Purposefully
a) Conscious objective
b) And knows attendant circumstances, he is
aware or hopes exist
2. Knowingly
a) If the element involves the nature of his
conduct, he is aware of his conduct and it is of
that nature, AND
b) If the element involves a result of conduct, he
is aware that is is practically certain that his
conduct will cause a result
3. Recklessly
a) Consciously disregards a substantial and
unjustifiable risk and his disregard of the risk is
a gross deviation from the standard of conduct
 (1) Appreciate the risk then ignore it
b) Not the same as gross negligence
(1) Recklessness is subjective; gross
negligence is objective
4. Negligently
a) Should be aware of a substantial and
unjustifiable risk and the failure to perceive the
risk is a gross deviation from the standard of a
reasonable person in the D’s position
(1) Objective standard
5. MPC “Gap Fillers”
a) When a statute does not state mens rea, the
elements should be read into the statute with
the intent of:
(1) Purposefully
(2) Knowingly
(3) Recklessly
(4) NOT negligently
6. Unsure about jurisdiction?
a) Either read “mentally blameworthy” into the
statute under common law (general intent)
b) OR, apply one the three intents of MPC
C. Transferred Intent
1. “Intent travels with the bullet”
2. D is as guilty as if the blow had fallen the intended
victim
a) Applies to both Common Law and MPC
D. Regina v. Cunningham, 1957
1. Charged with unlawfully and maliciously causing
administered exposure of noxious gas to endanger
life
a) Removed gas meter to collect money
(1) Exposed mother in law
b) “Maliciousness” center of debate
(1) Trial judge instructed jury that
wicked=malice
(2) App. ct. Does not agree
c) New meaning/interpretation of malice
(1) Actual intention to do the particular harm
that was done
 (2) Recklessness as to whether such harm
should occur or not
E. People v. Conley, 1989
1. Convicted of aggravated battery based on permanent
disability of victim
a) Fight broke out at party
b) Elements in statute:
(1) Intentionally and knowingly
c) D argues he did not intend to cause permanent
disability
(1) Alt. argues that injury is not a disability
because it does not prevent
performance of tasks
d) Court finds intent/knowingly based on the
circumstances and weapon choice (wine
bottle) and force of blow
F. Willful Blindness
1. MPC allows willful blindness
a) Such knowledge is established if a person is
aware of a high probability of its existence,
unless he actually believes that it did not exist
2. State v. Nations, 1984
a) D charged with endangering the welfare of a
child
(1) Operated a strip club
(2) Statute limit age to 17 and “knowingly”
b) D argued they did not “knowingly” allow/enable
a minor to dance
(1) Did not know for certain she was not 17
c) Knowing is actual knowledge
d) State was originally prosecuting recklessly;
burden is higher for knowingly
(1) Did not meet burden
(2) Willful blindness was not part of
Missouri code-- actual knowledge was
required
G. Strict Liability
1. Common Law and MPC generally disfavor strict
liability offenses but will still permit it
a) MPC strict liability must be clear
 (1) w/out strict liability statement, MPC will
gap fill intent
(2) Only allowed when penalty is only a fine
(no legal disability)
(3) Much stricter standard than CL
b) Common Law will also try to read intent into
the statute without strict liability statement
(1) Unless:
(a) public welfare offense
(b) Statutory rape
(c) Or Legislative was clear they did
not want Mens Rea
2. Can apply to welfare offenses
a) Regulatory in nature
(1) I.e. spilling oil, traffic laws, transporting
dynamite
3. Mistake of Fact
a) NEVER a defense
4. Morrissett v. United States, 1952
a) D took abandoned bomb casing and
repurposed and sold them
b) Statute prohibited stealing gov’t property
(1) “Knowingly” not placed at front of the
statute, only preceded “converts”
(2) Court reversed conviction and read
intent into the statute
(a) Generally, Strict liability
statement must exist for
enforcement
5. Staples v. United States, 1994
a) National Firearms Act required all machine
guns to be registered
(1) Unregistered weapon was found in D’s
home during a warrant search
(2) Punishment for unregistered gun: up to
10 years prison
(3) Key to to case: “knew” the gun would
fire automatically
(a) D argues mens rea be read into
statute
 (i) Not a public welfare
offense
(b) Prosecutor pushing for strict
liability
(4) Court requires the legislature to be clear
and defaults to the rule to read mens
rea into the statute
(a) Acquitted
6. Garnett v. State, 1993
a) D was special ed (IQ of 52)
(1) 20 years old
(2) Has intercourse with 13 year old and
gets her pregnant
b) Statutory Rape: Under 14 years of age and
actor is at least 4 years older
(1) Penalty up to 20 years in prison
c) Lower court found D guilty
(1) Strict liability
(2) Legislative history suggests strict liability
(a) Purposefully left out mens rea
(i) Included it in other
sections of the statute
(3) *Note: under MPC standards, Garnett is
not guilty
(a) Would read intent into statute
H. Mistake of Fact
1. Common Law
a) Specific Intent
(1) If the mistake negates the specific intent
portion of the crime, then the D must be
acquitted
(a) If the mistake does not negate
the specific intent portion of the
crime, then treat the offense as a
general intent crime
(b) Example:
(i) Aggravated battery of a
police officer:
(a) “Unlawful touching
of a P.O. with the
 intent to cause
serious bodily
harm”
(b) General: unlawful
touching of police
officer
(c) Specific: intent to
cause serious
bodily harm
(ii) Mistake of Fact:
(a) D throws bottle of
acid on P.O.
believing it was
water
(i) Mistake goes
towards
specific
intent
(ii) Not believing
P.O. would
go to general
intent
b) General Intent
(1) Culpability analysis: did the D act with a
morally blameworthy state of mind?
(a) If the mistake was reasonable, he
is morally innocent and entitled to
a defense for want of a mens rea
(b) If the mistake was unreasonable,
then he acted with a culpable
state of mind and may be
convicted
(2) Analysis for if mistake was reasonable:
(a) Moral Wrong Doctrine
(i) Even if mistake was
reasonable, the intentional
commission of the crime
serves as the requisite
blameworthiness to justify
conviction
 (a) I.e. old England,
man takes young
girl away from
home. She was 14
but he believed her
to be 18. Taking
was still
condemned.
(b) Legal Wrong Doctrine
(i) Term “illegal” substitutes
for “immoral”
(ii) The D’s conduct was a
crime based on the facts
he believes them to be, he
may be convicted of a
more serious crime than
his conduct establishes
(a) Providing child
pornopgrahpy to a
person
(b) Minor: felony
(c) Adult: misdemeanor
D gave it to 17 year
old which h
believed was an
adult
(i) Can be
charged as a
felony
2. Model Penal Code
a) Adopts the Specific Intent Analysis
(1) Because language is always either
provided or read into the statute
3. People v. Navarro, 1979
a) “Every person who shall feloniously steal”...
(1) Codified common law larceny
(2) “Taking and carrying away the personal
property of another with the intent to
steal”
(a) Steal: deprive permanently
 (b) Specific intent bc it was written
into the statute
(3) Actus Rea
(i) Taking and carrying
(general)
(ii) Personal Property of
another (general)
(4) Mens Rea
(a) w/ intent to steal (specific)
(5) Mistake was good faith regarding intent
to steal
(a) Sufficient to acquit
I. Mistake of Law
1. Common Law
a) Ignorance of the Law is no excuse
(1) Exceptions:
(a) Reasonable reliance
(b) Constitutional limits
(c) Different law mistake
(2) MPC adopts similar approach ^
2. People v. Marrero, 1987
a) Peace officers are exempt from criminal liability
under the firearm possession statute
(1) D arrested for gun possession
(a) Though peace officer included
him
(i) Federal corrections officer
(b) Relied on statement of
boss/trainer
(i) BUT, official statements
must come from authority:
(a) Court opinion, AG
opinion letter
(c) Official statement reliance does
not work in this case because the
statute did not authorize the
conduct, it only removed liability
(d) Court convicts
3. Cheek v. United States, 1991
a) Pilot evades filing federal taxes for years
 (1) Fanatic about thinking taxes are
unlawful
(2) Relied on an attorney supporting his
position
(a) Not reasonable reliance; not an
authoritative statement
(3) “Willfully not paying taxes”
(a) He believed was unlawful but still
knew and purposefully did not
fulfil duty to file taxes
(4) Convicted
IV. CAUSATION
A. Causation is used in harm offenses
B. Common Law
1. Requires both:
a) Actual Cause
b) Proximate Cause
2. Actual Cause
a) “But For” test
(1) Cause in Fact
(2) Very Broad
3. Substantial Factor Test
a) Language requirement is Key: Only works
when conditions are met:
(1) Two D’s, acting independently, commit
two separate acts, each of which alone
would cause the result
4. Acceleration Test
a) Did the non-lethal act accelerate the victims
death or merely aggravate the victim’s
condition?
(1) Also described as:
(a) But for his infliction of the injury,
would the victim have died when
he died?
(b) If acceleration exists, the D is the
“but for” cause
(c) Requires medical certainty
5. Oxendine v. State, 1987
 a) D’s gf pushed son into bathtub the night before
causing internal bleeding
b) D beat the kid the next morning for appr. 10
min
(1) Son needed to go to hospital that
evening, died on the way
c) Docs testimony varied on effects of the injuries
(1) Court said testimony shows that first
injury was enough to kill,
(a) Second injury, not enough, so no
acceleration
(b) Can’t use substantial factor test
because each act alone would
not bring about death
(c) Can’t use acceleration test
because it must be sufficient to
cause death earlier (requires
med. Certainty
(2) Oxendine not the “but for” cause
6. Obstructed Cause
a) Wipes away first cause
(1) I.E. A stabbed V (will die in an hour)
(a) B comes and shoots V in the
head (dies instantly)
(i) B killed
(ii) A attempted
7. Concurrent Sufficient Cause
a) Hold both D’s responsible
(1) A shoots V at exact time B shoots V
8. Proximate Cause
a) Common Law
(1) Consider factors to decide if it is fair to
hold the defendant criminally liable
b) Intervening Cause
(1) Where there is an intervening cause that
superseded the D’s act, then D is not
liable
(a) To supersede, the intervening act
must NOT be reasonably
foreseeable
 (i) Consider the following:
(a) De minimis
contribution to
social harm
(b) Foreseeability of
intervening cause
(c) Defendant’s mens
rea
(d) Apparent safety
doctrine
(e) Free, deliberate,
informed human
intervention
(f) Omissions
(g) Gross negligence is
not reasonably
foreseeable
c) Model Penal Code
(1) Adopts the “but for” analysis
(2) For Proximate Cause:
(a) Focuses on whether D caused
result with culpability (mimics
mens rea)
(i) MPC wants the analysis
included in the mens rea
portion
(3) MPC does not apply substantial factor
test same way as CL
(a) Ask “but for” with great specificity:
(i) But for the actions of the D
would the victim have died
how they died and when
they died?
9. Distinctions:
a) Common Law:
(1) But For
(2) Proximate Cause
b) MPC
(1) But For
(2) Culpability
 10. People v. Eulo, 1984
a) D shot victim in the head; placed on life
support (brain dead)
(1) Argued death occurs at cessation of
breathing
(a) Docs removed off life
support/organ harvesting would
be a superseding cause of death
under this theory
(2) State argues moment of death occurs at
brain dead
(a) D was both the but for and
proximate case
(i) Dead before organ
transplant, no superseding
act

V. CRIMINAL HOMICIDE
A. Language of Criminal Homicide
1. Murder:
a) Intent to kill (purposeful or knowing)
b) Intent to cause grievous bodily harm
(Purposeful or knowing)
c) Depraved Heart
d) Intent to commit a felony
2. Manslaughter
a) Heat of passion (voluntary)
b) Acting in an unduly dangerous manner
(involuntary)
c) Misdemeanor manslaughter (involuntary)
3. Typically:
a) 1st degree murder is premeditated
b) 2nd degree murder is anything else
(1) Both are statute drive and vary from
state to state
B. State v. Guthrie, 1995
1. D stabbed worked in the neck after being teased and
flicked on the nose with a towel
 a) Had history of panic attacks and obsession
with nose
2. First degree murder:
a) “...willful, deliberate, and premeditated
killing…”
b) Jury instructions failed to distinguish between
first and second degree murder
3. Court adopts new standard:
a) The is killing is done after a period of time for
prior consideration, AND
b) Any interval or time between the forming of
intent to kill and the execution of that intent,
which is sufficient duration for the accused to
be fully conscious of what he intended
C. Midgett v. State, 1987
1. First degree v. second degree case
2. Father starved and beat his son
a) 8 years old, broken ribs, emaciated
b) Died from internal bleeding
3. Court cannot convict based on premeditation
requirement for first degree
a) Evidence does not show intent to kill but
instead intent to abuse
D. State v. Forrest, 1987
1. First degree v. second degree
2. Son kills father at hospital
a) Fires gun 4 times
b) Did not run after
c) State would not let father suffer
d) Carried a gun for work, but was not working
that day
3. Indications of Premeditation or Deliberation
a) Want of provocation
b) Conduct and statements
c) Ill-will or occurrence giving rise to death
d) Threats and declarations of the D
e) Dealing of lethal blows after the deceased has
been felled
f) Brutal manner of killing
E. Heat of Passion
1. Common Law
a) Requires:
(1) Intentional Killing
(2) Sudden Heat of Passion
(3) Adequate Provocation
(a) Objective Standard
(b) Calculated to inflame the passion
of a reasonable man or, might
render ordinary men of fair
average disposition liable to act
rashly or without due deliberation
or reflection and from passion
rather than judgment.
(i) Old Cl Rule: wholly object
for reasonable person
(ii) Modern approach:
modified
(a) Considers: age,
sex, past
experiences, etc
(4) Before a reasonable opportunity for the
passion to cool
(5) Must also consider a causal link
between provocation, the passion, and
the fatal act

2. Girouard v. State, 1991

a) Army couple, gets into an altercation, wife
verbally accosted the D, he goes to the kitchen
and grabs a knife and stabs her 19 times
b) Court holds that words alone are never
sufficient provocation
c) BUT, words can be sufficient if coupled with
present intent and ability to render bodily harm
(fulfill threat)
(1) Usually self defense but not if the
aggressor started the altercation
d) Traditional provocation:
(1) Extreme assault/battery
 (2) Mutual combat
(3) D’s illegal arrest
(4) Injury or death of a close relative
(5) Sudden discovery or spouse’s adultery
3. Model Penal Code
a) Broader than CL standards for Heat of Passion
b) Requires
(1) Intentional Killing
(2) Sudden Heat of Passion
(a) Categorized as “acting under the
influence of extreme mental or
emotional disturbance”
(3) Adequate Provocation
c) Does NOT require/consider “before reasonable
opportunity for passion to cool”
(1) Mainly because MPC support the idea
of simmering or building over time
d) Criminal Homicide constitutes manslaughter
when:
(1) A homicide which would otherwise be
murder is committed under the influence
of extreme mental or emotional
disturbance for which there is no
reasonable explanation or excuse
(a) The reasonableness of such
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
e) MPC does allow for mistake even if the
mistake is wrong/incorrect
(1) D kills ex-gf bc D thought she was with
bf when she was actually with brother
f) People v. Cassava, 1980
(1) D was obsessed with victim
(a) They dated briefly and lived in
same apartment complex
(i) D broke into lower
apartment, victim’s
 apartment, and offered her
alcohol as a gift
(ii) Upon rejection of gift, he
stabbed her in the neck
and dragged her body to
submerge in the tub
(b) D tried to mitigate the charge to
manslaughter
(2) Standard to prove:
(a) The particular D must have acted
under the influence of extreme
mental or emotional disturbance
(i) Subjective test
(b) Must be a reasonable
explanation or excuse for the
actor’s disturbance
(i) Objective test
(3) Court found the acts/traits of the D too
peculiar to him and there was no
reasonable excuse
(a) Put themselves in D’s position:
(i) devastated and rejected
but would not react in a
killing based on a rejection
of a gift
(b) Convicted of first degree

F. Unintentional Killings
1. Unintentional Killings - Unjustified Risk Taking
2. Common Law
a) TWO choices:
(1) Murder: depraved heart
(2) Manslaughter (Involuntary): gross
negligence
(a) Outside the mind of D
3. MPC
a) THREE choices:
(1) Murder: Reckless plus
(a) Reckless with extreme
indifference to human life
 (2) Manslaughter: Reckless
(a) ONLY in MPC
(b) Conscious disregard of
substantial and unjustified risk
(c) Still in mind of D
(3) Negligent Homicide
(a) Outside mind of D
4. People v. Knoller
a) The “dog-o-war” case
b) Charged with 2nd degree murder: depraved
heart
(1) Expressed malice
(a) Manifests deliberate intent
(2) Implied malice
(a) Abandoned and malignant heart
c) The issue turned on implied malice
(1) Multiple warnings/signs
d) California Court adopts the Phillips Test:
(1) Killing is proximately caused by an act
where a person who knows that his
conduct endangers the life of another
and who acts with conscious disregard
for life
5. State v. Williams
a) Young/low educated native american couple
does not get care for 17 month old son; he dies
b) Introduced idea of gross negligence-- Common
law manslaughter
(1) But legislature enacted a statute that
adopted ordinary negligence for
manslaughter
c) **Actus reus omission offenses require a duty
6. Note:
a) Intent to cause serious bodily harm (not death)
but death occurs:
(1) Common Law will charge as murder
(2nd degree)
(2) MPC will fit into one of the categories
provided under reckless plus or reckless
G. Felony Murder
1. Falls under the 4th category of Murder for criminal
homicide
2. Must prove elements of the felony THEN prove the
causation for murder
a) Have a back up charge if felony murder cannot
succeed
3. Felony Murder Limitations:
a) Common Law
(1) Specifically enumerated offenses which
provide what felonies murder applies to
(a) Typically first degree charges
(2) Inherently dangerous felonies
(a) Most common limitation
(b) Requires abstract analysis
(i) Ask, can you violate the
statute in a non-dangerous
way?
(a) I.e. Practicing
medicine without a
license
(i) No training:
dangerous
(ii) Lapsed
license: not
(c) Some states apply it on a case-
by-case analysis instead of
abstractly
(d) Typically 2nd degree charges
b) MPC
(1) Falls under reckless plus
(a) Limited to enumerated offense
(b) Includes felonious escape
(c) Creates Presumption ONLY
(i) Directly in statute “are
presumed” to be operating
with recklessness/extreme
indifference if you are
engaged in the activity
 (ii) Allows an opportunity for
Defendant to rebut the
presumption
(a) Which would
require the govt to
go back and prove
extreme
recklessness
4. People v. Howard
a) Defendant was fleeing from police arrest- car
accident caused death of person in other
vehicle
(1) 2nd degree felony does not apply here
5. Independent Felony Merger Doctrine
a) Felony murder may NOT be charged when it is
the based upon a felony which is an integral
part of the homicide and which the evidence
produced shows to be an offense included in
fact with the offense charged
(1) I.e. assault; child abuse; burglary with
intent to assault; discharging a firearm
into a crowded building
(2) If they merge, no felony murder charge,
just murder charge (must still prove
mens rea)
b) There MUST be an independent felony to
charge felony murder
(1) If they do NOT merge, then felony
murder charge
(2) I.e. Selling narcotics; armed robbery;
kidnapping
6. Felony murder requires the killing occurs during the
commission of a felony
a) Continuous transaction
(1) No break in chain of events
7. Felony murder requires a causal connection between
the felony and the killing
a) A logical nexus
(1) Cause in fact
(2) Proximate cause
 b) State v. Sophophone
(1) Two criminals, one dies by the hands of
police during apprehension (fired shots
at cop)
(a) Other defendant charged with
felony murder
(2) Majority Rule: Agency Approach
(a) A co-felon is liable for the acts of
the other co-felon; if the killing
was done by an agent/co-felon
(b) Here, a cop did the killing, not a
co-felon
(3) Minority Rule: proximate cause
approach
(a) Set in motion the events
(b) Killing by anyone of anybody
8. Provocative Act Doctrine
a) If you engage in sufficiently dangerous activity
then you can be charged with depraved heart
murder
(1) Option if you cannot charge felony
murder
9. Misdemeanor Manslaughter
a) Unintentional homicide occuring during the
commission of an unlawful act not amounting
to a felony
(1) Usually limited to malum en se
misdemeanors
VI. Inchoate Offenses
A. Three types:
1. Attempt
a) Charged alone
2. Solicitation
3. Conspiracy
a) Separate charge (i.e. conspiracy and robbery)
B. Attempt
1. Mens Rea required for attempt
a) People v. Gentry
(1) Requires a substantial step towards the
crime
 b) Bruce v. State
(1) Does attempted felony murder exist?
(a) How can you attempt to commit
an unintentional killing
(b) Can change the charge to
attempted voluntary
manslaughter (not involuntary)
(c) Nuance: Florida allows attempted
felony murder
2. MPC
a) Treats attempt in the same degree as fully
committing the crime in terms of sentencing
due to the crime is usually only interrupted due
to an outside force (police)
3. Looking for attempt in a crime:
a) Majority:
(1) Requires a substantial step
(a) Mere preparation is not enough
b) 2 intents
(1) Intent to commit the conduct
(2) Intent to commit the target offense
(a) Split in circuits on level of intent
(i) Knowingly
(ii) Purposefully
c) Note: mistake of fact of factual impossibility is
never a defense
C. Conspiracy
1. A partnership in criminal purposes, a mutual
agreement or understanding, express or implied,
between two or more persons to commit a criminal act
or to accomplish a legal act by unlawful means
a) Distinguish 5 steps:
(1) Agreement
(2) To commit the crime
(3) Overt act
(4) Intent to combine with others
(5) Intent to accomplish illegal objectives
2. Most jurisdictions require proof of an overt act in
furtherance of the conspiracy
a) Common Law does not require it
 3. Two intents
a) Intent to combine with others
b) Intent to accomplish illegal objectives
4. Mere preparation is enough
5. No merger doctrine
6. Majority: treat as a felony (but less severe sentencing)
a) Ex. conspiracy to commit wire fraud: 5 years
b) Wire fraud: 20 years
7. Pinkerton v. US
a) The acts of one conspirator in furtherance of
the conspiracy are imputed to the other
members of the conspiracy
(1) Remember brothers in the case
(a) All part of continuous conspiracy;
no evidence of new agreement or
dissolution of agreement
(2) MPC does not use the Pinkerton rule
8. People v. Swain
a) Drive by shooting; killed 15 year old
(1) Charged with 2nd degree murder
(a) Defined as unintentional
(depraved heart)
(2) How can you conspire to do something
that is unintentional?
(a) You can’t.
(3) Court rules: you cannot rely on implied
intent for an unintentional act
b) Conspiracy is a specific intent crime
9. Co-conspirator liability different than accomplice
liability
10. Abandonment
a) Majority: Must communicate withdrawal to
each conspirator
b) Some jurisdictions require you to convince
conspirators not to go thru with the crime or
turn them into authorities
11.
Common Law MPC

Misdemeanor or Felony Same as objective crime

 punishment (lesser felony) (except for 1st degree felonies)

Pinkerton Rule NO Pinkerton

2 or more persons required No plurality (can be a single

person; no requirement of
mutual agreement)

Modern: Overt act required 1st or 2nd degree doesn’t

require an overt act; anything
Old Rule: no overt act lesser does
12. Commonweath v. Azim
a) To establish an agreement look to the
following:
(1) The association of alleged conspirators
(2) Knowledge of the commission of the
crim
(3) Presence at the scene of the crime
(4) Participation in the object of the
conspiracy
b) You can INFER from circumstances that a
conspiracy exits
VII. Accomplice Liability
A. Principal:
1. Principal in the 1st degree
a) The person is guilty of the felony because they
actually committed the crime by his own hand
or by the hand of an innocent agent
2. Principal in the 2nd degree
a) Guilty of the felony because they aided,
counseled, commanded or encouraged the
commission of the offense while being present
at the moment of the perpetration (either
actually or constructively)
(1) “Constructively”
(a) Close enough to help even if you
are not right there
(i) I.e. get away driver or
lookout
(2) Presence alone does not count
3. Principals may be tried in any order
 a) Principals in the 2nd degree may be charged in
a higher or lower crime
(1) Will be charged and convicted alone
(a) Does not depend on the other
principal
B. Accessory
1. Accessory before the fact
a) Aided, counseled, commanded, or encouraged
the commission of the act without being
present at the moment of perpetration
2. Accessory after the fact
a) One who with knowledge of the other’s guilt
[renders assistance](actus reus) to the felon [in an
attempt to hinder his detection, arrest, trial or
punishment] (mens rea)
3. Accessory before the fact can be charged as principal
in the 1st degree
a) Both Common Law and MPC
4. Common Law Accessory
a) May NOT be tried before the principal and
cannot be tried to a higher crime than the
principal
(1) Cannot convict without principal being
convicted
5. MPC Accessory
a) Can be tried independent of principal
6. Note: Principal in the 2nd degree and Accessory
before the fact are liable for all consequences that are
the natural and probable result of the act (all acts in
the crime)
a) Strict liability: no mens rea
7. Accessory after the fact
a) Charged with a lesser crime than the
substantive crime
(1) I.e. not robbery but harboring a fugutive
C. Options for charging Conspiracy v. Accomplice
1. Charge with conspiracy
a) And attach all liability for subsequent acts
under Pinkerton
 2. OR, Charge with conspiracy (maybe) and attach
accomplice liability for subsequent acts in an MPC
jurisdiction
D. Charge for Accomplice
1. Actus reus = assistance
a) Common Law
(1) No such thing as an attempted
accomplice
(a) Must actually succeed in
attempting
b) MPC
(1) Recognizes attempted accomplice
(a) Still tried to do it; success is
immaterial
2. Mens rea = 2 intents
a) Aid the principal
b) Objective crime (goal)
E. State v. VT
1. Mere presence, or even prior knowledge, does not
make one an accomplice to a crime absent evidence
showing the defendant did something to instigate,
incite, embolden or help others in committing the
crime
a) Presence alone not enough
b) Presence plus is enough
2. Undisclosed intent to aid if needed is not enough
3. Mere presence and flight is not enough
F. Bailey v. Commonwealth
1. One who effects a criminal act through an innocent or
unwitting agent is a principal in the first degree
VIII. Larceny
A. The tresspassory taking (“caption”) and taking away
(“asporation”)///
B. Lee v. State
1. Common Law:
a) The trespassory taking and carrying away of
personal property of another with intent to steal
the same
2. Physical Possession : In D’s hands
 3. Constructive Possession: ownership rights remain
with owner
C. Posssession v. Custody
1. Bailees have Possession
a) Gain possession of the bale
(1) But if he breaks bale: larceny
(2) If he pilfers the entire bale: not larceny
2. Employees have custody
a) Custody: receives property for a limited and
temporary purpose
D. U.S. v. Mafnas
1. Breaking Bulk/Bale
a) If you break open the bale and take a portion
or all of the contents then you are guilty of
larceny
E. Topolewski v. State
1. Meat case
a) One may set a trap for a thief, but must not go
further than to afford an opportunity. One
cannot go as far as consenting.
F. Rex v. Pear
1. Larceny by trick (horse)
a) Look at the intent at the time of the taking
G. Brooks v. State
1. When a person finds goods that have actually been
lost and takes possession with intent to appropriate
them to his own use, really believing, at the time, or
having a good reason/ground to believe, that the
owner CAN be found, it is larceny
H. Elements to Larceny
1. Actus Reus:
a) Tresspassory taking
b) Carrying away
2. Mens Rea
a) Intent to deprive the other of their property on a
permanent basis
(1) Must be at the time of the taking
(2) Specific intent
I. Trespassory taking:
1. Ownership is not key
 2. Issue turns on possession
a) Sufficient control over the property to use it in a
reasonably unrestrained manner
(1) Actual: physical control
(2) Constructive: no physical control; no
one else has actual possession because
they only have custody
b) 4 ways physical control is only merely custody
(1) temporary/limited authorization to use
property
(2) Receive property from employer
(3) Bailee of goods
(4) Obtain property by fraud
J. Lund v. Commonwealth
1. Larceny applies to goods and chattel NOT labor and
services
K. People v. Brown
1. Must intent to deprive permanently
L. People v. Davis
1. Permanent is flexible
a) “Sell back”; “refund”; “reward for finding”
IX. Defenses
A. Common Defenses:
1. Failure of Proof
a) Must satisfy each element; if one is missing
there is failure of proof
(1) I.e. no evidence of purposeful
2. Offense Modification
a) Policy considerations- can satisfy all the
elements but will not charge in such way (not
what the crime was intended for)
(1) I.e. parents pay a kidnapper to return
child (aiding and abetting)
3. Excuse
a) Admit the deed was wrong, but excuse the
actor (remove culpability) because they were
not responsible (lack of exercise of free will)
(1) I.e. Insanity
b) Different than justification
4. Non-exculpatory
 a) Purely public policy
(1) I.e. SOL
5. Public Policy Defenses
a) Often related to above
b) I.e. Diplomatic Immunity
6. Justification
a) The harm is outweighed by the need to prevent
a greater harm
(1) I.e. self-defense or necessity
B. How defenses work generally:
1. Failure of Proof
a) Prosecutor's burden to prove each element
b) Affirmative defense: burden on D
(1) Mitigates the charge
(2) Must prove by preponderance of the
evidence lack of an element
(3) Some jurisdictions require clear and
convincing evidence
2. Self-Defense
a) Affirmative defense
(1) If self-defense claim in imperfect it
mitigates conviction from murder to
manslaughter
b) Low burden of proof for defendant
(1) “Reasonably” is the typical standard
(2) Lower standard that Failure of Proof (i.e.
no preponderance)
c) United States v. Peterson
(1) Windshield wiper case
(2) Aggressors cannot raise self-defense
(a) Unless renounced the challenge
(3) Cannot use deadly force to protect
personal property
d) Homicide may be justified if done in self-
defense if:
(1) threat , actual or apparent, of the use of
deadly force against the defender
(2) Threat was unlawful or imminent
(3) The defender believed that he was in
imminent peril of death or serious bodily
 harm and that his response was
necessary to save himself therefrom
(4) These beliefs were honestly entertained
and objectively reasonable in light of the
surrounding circumstances
e) MPC
(1) Actor must believe force is immediately
necessary
(2) Cannot raise defense:
(a) if the provoker
(b) if you there was a safe option to
retreat
(c) Or if you could have met a
demand to abstain from an action
that had he had no duty to take
(meeting a demand)
3. Retreat
a) Common Law
(1) Even the innocent victim must elect safe
retreat, if available, rather than resort to
defensive force that might kill or
seriously injure
(a) Exceptions:
(i) When circumstances
foreclose a safe
withdrawal
(ii) Castle doctrine:
(a) If attacked in home
(b) MPC applies at
home and work
(2) Majority Rule: Stand Your Ground
(a) One may stand his ground and
use deadly force whenever it
seems reasonable necessary to
save himself
4. Necessity
a) Elements Common Law:
(1) The act charged must have been done
to prevent a significant evil
 (2) The harm caused must not have been
disproportionate to the harm avoided
(3) Emergency (immanency)
(a) MPC does not include
immanency
(4) There must have been no adequate
alternative
b) The defense is available if the person acted in
a reasonable belief that the emergency existed
and there were no alternatives available even if
that belief was mistake
c) The person’s actions should be weighed
against the harm reasonably foreseeable at the
time, NOT the harm that actually occurred
(1) Legislature can avoid weighing of the
harms in certain circumstance
(a) Drunk driving or eating someone
(2) Based on objective analysis