Mens Rea, Actus Reus and Causation Elements of Criminal Law

Mens rea + actus reus + causation (Acosta)
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I. Institutions and Processes
A. Phases of criminal law
1. Criminalization: The legislature decides to criminalize some kind of conduct.
2. Investigation of the act
a. Half of all cases are dismissed due to discretion, no guilt, few resources
b. Must establish guilt BRD
3. Arrest
4. Initial detention
5. The charging decision
6. Pretrial disposition of the case
7. Jury selection
8. Conduct of the trial in the guilt phase
9. Sentencing
10. Service of Sentence
11. Release
B. Trial
1. Indictment
2. Opening statements does NOT constitute evidence
3. Prosecution calls in witnesses
4. Directed verdict
5. Jury instructions
6. Deliberation
7. Verdict
a. Not guilty No review
b. Guilty conviction can be reversed and a new trial ordered
c. Mistrial no consensus
C. The process for determining guilt
1. Evidence
a. Irrelevant evidence is never admissible
b. How do you determine relevancy?
1. Probative tends to establish the proposition for which its offered;
proposition is more likely to be true given the evidence than without the evidence
(e.g. there was a motive)
2. Materiality change the outcome of the trial (e.g. self-defense v. consent in
homicide cases)
c. EXCEPTION: Privilege
1. Self-incrimination the jury cannot draw any adverse inferences from a
refusal to testify
d. EXCEPTION: Prejudicial, Character, Past Crimes
1. Exclusionary Rule
2. Prejudicial > Probative
a. NOT prejudicial - D carried smoking revolver away from scene of
murder
b. Affects the result in some improper way
c. Overestimate the probative value OR undue hostility toward a
party
d. Applicable doctrines: Rape shield laws, homicide provocation,
battered spouse, intoxication, diminished capacity, insanity defense
3. Character & Past Crimes
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a. People v. Zackowitz: Character is never an issue at trial unless the D
chooses to make it one; bad char. and other crimes may NOT be
introduced at trial to show that the D had an evil disposition
c. Policy reason: It denies the D a fair opp to defend himself; repose
(SOL-like)
d. EXCEPTION: Char. may be admissible to show motive, intent,
preparation, plan, knowledge, identity, and absence of mistake/accident
1. Cannot show the D had a bad character (prej > prob)
2. Cannot subordinate reason to emotion (4th Cir.)
e. EXCEPTION: Sex offenses
1. Why? More likely to offend (not entirely accu.)
2. Again, if prejudicial > probative, not allowed
f. EXCEPTION: Impeachment D testifies in his defense
1. Why? Guilty are more likely to give false testimony than those
with a clean record
2. May lead to absurd results see, e.g., burglary
2. Proof BRD (elements of crime, aff defense, presumptions)
a. General standard In re Winship
1. Proof BRD is an essential of due process and fair treatment required (esp.
when juvenile convicted of an adult crime)
2. General Rule: All elements of crime must be shown beyond a reasonable
doubt, though the burden of production and/or persuasion may be shifted to a
defendant for an affirmative defense.
b. How does this work at trial?
1. After Ps case, if the evidence raises a reasonable doubt about guilt as a matter
of law direct a verdict for D (includes hypothesis of innocence)
2. At the close of the evidence, the D may again move for a directed verdict
a. However, if the case could go either way, then case goes to jury
3. If reasonable jurors have a doubt acquittal
4. On appeal, if a reasonable mind could conclude either guilt or innocence
reversal of verdict
5. If error describing the standard conviction reversed
c. Several courts prefer not explaining the standard at all to the jury
d. Allocating the burden of proof
1. Patterson v. New York: Where an affirmative defense doesnt require an
element of the crime, the D is required to bear the burden of proof
2. Mullaney v. Wilbur: ME statute defined murder as lacking provocation / heat
of passion, so this cant be shifted to the D (if its a part of an element of the
crime, as defined by the legislature, it cant be shifted)
3. Burden of production: providing enough evidence to put a fact at issue
4. Burden of persuasion: convincing the trier of fact
5. Affirmative defense: D bears burden of production
1. As long as the D doesnt have to prove / disprove any elements of
the crime, its okay
e. Sentencing
1. Sentencing factors (not increasing max. sentence) POE
2. Increases maximum penalty BRD
3. Increases statutory max BRD
4. Authorized range POE
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5. Mandatory minimum POE
6. Legislatures set high sentences, which can be lowered using POE
f. Presumptions ease prosecutorial burden
1. Mandatory presumption constitutionally permissible if the presumed relat
holds true over time
a. Jury must accept absent an aff defense
2. Permissive presumption presumed relat more likely than not to hold true
under the circum of the particular case
a. Jury can choose to accept/reject regardless of aff defense
3. Limits intending to kill someone and sanity
3. Role of the Jury
a. Right to a jury trial is fundamental, to be guaranteed in state courts, for non-petty
offenses (Duncan v. Louisiana)
1. 14
th
Amendment and 6
th
Amendment
2. Accused can choose to waive a jury trial
3. Petty offenses Crimes carrying penalties up to six months do not require
jury trials
b. If theres an error in jury instructions, the verdict must be reversed
c. Jury nullification
1. United States v. Dougherty: Jury should not be instructed of its power to
nullify the law in a particular case; the jurys prerogative to ignore the courts
instructions does exist, though (comes from the jurys ability to hold that the D
was not guilty)
a. Policy reasons: Anarchy, Legislative function transferred (govt of
laws, not men), inequity of enforcement, arbitrary
d. Its difficult to remove a juror; initial jury may not be rep. of a community
e. Jurys role in sentencing
1. Capital crimes role
2. Noncapital crimes no role in 44 states; role in 6 states
f. Inconsistent verdicts
1. Acquittals cannot be appealed

II. Discretion Charging dec. is influenced by PB, and PB is influenced by sentencing
A. The decision to charge
1. File criminal charges only when probable cause can be established, but usually prosecutors
will file charges when there is guilt BRD
2. Dismiss charges when guilt BRD is lacking
3. Two reasons why charges may not be brought up: limited resources, individualization
4. ABA guidelines
a. Strength of evidence
b. Harm caused
c. Disproportion b/ween auth. punishment and gravity of a particular crime
d. Ds willingness to cooperate
e. Likelihood of prosecution in another juris.
i. Federal higher sentence
5. Checks on prosecutors?
a. Prosecutors enjoy absolute immunity when their misconduct is associated with the
judicial phase of the criminal process
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b. Courts cannot overturn a prosecutors discretionary decision not to prosecute
(Inmates of Attica Correctional Facility v. Rockfeller)
i. Why? Separation of powers
ii. EXCEPTION: Domestic violence cases (no drop policies)
iii. EUROPEAN EXCEPTION: Private person can initiate crim prosecution
(mandamus available)
a. Ps are required to file/pursue all charges for which there is evidence to
support a conviction
b. Judicial review for decisions not to charge
c. Victim has a right to be kept informed about the course of an investigation and to
discuss the case with the P
d. Selective prosecution (United States v. Armstrong)
i. To maintain a selective pros. claim, Ds need to show
a. Fed prosecutorial policy had a 1) discriminatory effect 2) motivated
by a discriminatory purpose
1. Discriminatory effect similarly situated individuals of a
different race were NOT prosecuted at all, but known to law enf
officials (or were prosecuted in state court)
b. To get discovery, must have a credible showing of different treatment
of similarly situated persons
ii. NOT a defense to the underlying crime
B. Plea Bargaining
1. Constitutional validity a guilty plea is valid under the Fifth Amendment (Brady v. United
States)
a. To be valid a guilty plea must be 1) product of a free + intelligent choice and 2)
voluntary
i. What is knowing and intelligent choice
a. Sufficient awareness of relevant circum and direct consequences
ii. What is NOT voluntary?
a. Inducing by . . .
1. Physical harm
2. Threats
3. Mental coercion
a. NOTE: The fear of a higher penalty is NOT mental coercion
b. Bordenkircher v. Hayes: A P may use the threat of prosecution
for a higher sentence as a bargaining chip in plea negotiations
4. Misrepresentation
5. Bribes
b. A guilty plea is NOT uncons. Under the 5
th
Amend. if its influenced by the fear
of a possibly higher penalty (or the certainty of a lesser penalty) rather than a
wide range of outcomes
2. Three rights waived by a plea bargain
a. Right to jury trial
b. Right against self-incrimination
c. Right to confront ones accusers
3. Noncitizen clients must be provided with counsel
4. What if the P doesnt uphold his side?
a. The D may be withdraw the plea
b. EXCEPTIONS:
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i. This doesnt mean that the D will receive the exact sentence expected
ii. Bargain is fulfilled even if the judge imposes a different sentence than
the one the D expected
5. Judges role
a. Cannot initiate, but can indicate which concessions are appropriate
b. Cannot participate, but must explicitly accept/reject an agreement
6. Policy arguments
a. For
i. Mutuality
ii. Efficiency; necessity
iii. Cooperation
b. Against
i. Freedom of choice
ii. Principal-agent problem financial pressure
iii. Deterring D from exercising his rights
C. Sentencing
1. More determinant sentencing since the 1970s
2. Sentencing Regime applied to crimes
a. D must receive assistance of counsel
b. Capital crimes D has the ability to cross-examine and rebut adverse sentencing
information
c. Non-capital crimes (Williams v. New York)
i. A judge is allowed to review evidence supplied by witnesses whom a
convicted D has not had the opportunity to cross examine
ii. Policy reasons: Individualization
d. Felony Ds review presentence report before imposing sentences and offer evidence
to rebut factual inaccuracies
3. Sentencing reform Mandatory minimums
a. Prosecutors have a powerful bargaining chip to use in PB
b. United States v. Vasquez: No individualization with mandatory minimums
c. Mandatory minimums target drug distribution, firearms offenses, and sex offenses
against children
d. Still, discretion cannot be eliminated
e. United States v. Deegan: When a federal court imposes a sentence within the
applicable range of the advisory federal sentencing guidelines, appeals courts should
accord the sentence with a presumption of reasonableness
4. Sentence Length
a. Symbolism may play an important role (United States v. Madoff)
i. Deterrence, Retribution
b. Statute forbids parole life in prison is permissible (United States v. Jackson)
i. May impose a long sentence or a life sentence under statutes that prohibit
parole

III. Punishment
A. What is punishment?
1. Fine, probation, imprisonment, death penalty
2. Conviction carries stigma
3. Intermediate sanctions home detention, mandated comm service, etc.
4. Violence in prisons assaults and sexual violence and crowding
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5. Civil commitment burden of proof is lower, safeguards of criminal procedure dont apply,
D may face loss of liberty for an indefinite period of time for dangerousness
a. Criteria under Hendricks for civ. commitment:
1. Small subset of dangerous individuals
2. Strict procedural safeguards
3. Immediate release upon showing that individual is no longer dangerous
B. Theories of punishment
1. Retribution
a. Punishment because the person deserves it
b. Backward looking
1. No criminal confinement based on future acts
c. Negative retributivism only the guilty may be punished
d. Positive retributivism if guilty, then punished
e. Linked to the offenders moral culpability
f. Debt to society society has the duty to punish morally culpable people
g. Offender earned his punishment by the crime
1. No punishment to those who were under duress or were mentally impaired
h. Criticisms:
1. Based on emotion
2. Sounds like incapacitation
3. Proportionality in its pure form is hard to achieve
4. No individualization of justice
2. Utilitarianism punishment itself is evil b/c it inflicts harm on people; used to reduce future
crime (forward looking, Bentham, cost benefit analysis)
a. Deterrence
1. Threat, NOT actual punishment, brings deterrence
2. Can reduce crime in two ways
a. Specific Deterrence D doesnt commit future crimes
b. General Deterrence Other people will decide not to commit crimes
3. Pain > Pleasure from committing criminal acts
4. D must receive a) adequate notice of punishment, b) threat must be
credible (threat of capture and punishment), and c) requires calculation
5. Criticisms:
a. Every criminal believes he is smart enough to evade capture
b. PB and early release undercut deterrence impact
c. Crimes are spontaneous; criminals dont do cba
d. Cba may increase the amount of crime
b. Rehabilitation
1. Gained favor in the 1960s (crime seen as medical condition), but fell out of
favor in the 1980s
2. Offenders can be changed into nonoffenders if given the correct treatment
(trained not to commit crimes)
a. Safe enough to return to society
b. Lead a profitable life
3. Idea of the penitentiary
4. Social, medical, and psych. Disease
5. Indeterminate sentencing presentence reports
6. Criticisms:
a. No evidence that this works
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b. Costly
c. Incapacitation
1. Prevent offenders from offending
2. Must either a) punish for lengthy periods of time everyone the same crime
equally or b) assume that system can accurately identify those who are most
likely to reoffend and impose on them lengthy periods of incarceration [parole
boards]
3. Criticisms:
a. Costly
b. Not possible to predict accurately who may recidivate
1. If you overpredict, cost > benefit to society
c. Ignores the replacement phenomenon
1. Crimes have a market, so capturing offenders and
incapacitating them will have no effect on the crime rate
d. Punish the innocent?
e. Severely punish those who have committed a misdemeanor?
3. A Mixed Model Aim of punishment is utilitarian, but we can justly pursue this aim through
retributive limits
a. Criticism: State v. Chaney what if the D is no longer dangerous? Then a utilitarian
argument cant justify the aim of punishing him
C. Kinds of punishment
1. Shaming allowed as rehabilitation under the Sentencing Reform Act (United States v.
Gementara)
a. Shaming must be limited temporally and spatially (unlike Hackler)
b. NOTE: Appellate courts generally review sentencing orders deferentially join
statutory standards with specific facts
D. Proportionality Eighth Amendment
1. Policy reasons
a. Bentham
i. Min punishment > profit of crime
ii. Crimes are in comp, so punish the one thats greater to make criminals prefer
the lesser
iii. Provide motive to restrain (i.e. $10 punished more than $5)
iv. Punishment shouldnt be more than necessary to restrain criminals
2. Three strikes laws do not violate the Eighth Amendment and are not disproportionate to the
crime committed (Ewing v. California)
3. HOWEVER, life without parole for juveniles for homicidal and nonhomicidal offenses is
uncons (Graham v. Florida)
a. Life sentences are irrevocable
b. Retribution and deterrence dont apply b/c juveniles dont are less likely to take
potential punishments into account
c. Incapacitation doesnt justify either can become functioning adults
E. Death Penalty
1. Whitman: We dont need the death penalty when we have life without parole
2. Deterrence
a. Specific deterrence impossible to find out
b. General deterrence most studies find significant deterrent effects
3. Retribution
a. If society believes in the DP, law should reflect that view to maintain legitimacy
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b. Sometimes DP may be less heinous than the crime committed? Is that still
retributivist?
c. Can argue that DP restores equality paying a debt
4. Error
a. In DP & life without parole cases, but few pay attention to the latter
5. Bias
6. Constitutional Limitations
a. Furman v. Georgia: DP as administered violated 8
th
Amend
b. Gregg v. Georgia: DP is not per se uncons and is permissible if the statute has
sufficient controls to avoid capricious or indiscriminate sentencing; not disproportionate;
must have discretion
c. Automatic imposition of DP upon conviction violates the cons (Woodson v. North
Carolina & Roberts v. Louisiana)
1. Must have individualized consideration to meet the respect for human dignity
underlying the Eighth Amend.
d. Must consider mitigating circum / any aspect of Ds char (Lockett v. Ohio)
e. Mentally retarded uncons (Atkins v. Virginia)
1. Less capable of assisting counsel, poor witnesses, less culpable
f. Rape of an adult woman uncons (Coker v. Georgia)
g. Juveniles uncons. (Roper v. Simmons)
h. Rape of a child under 12 uncons (Kennedy v. Louisiana)
i. McCleskey v. Kemp: Not uncons. because of statistics demonstrating a tendency
toward racial bias in its application

IV. What should we criminalize?
A. Legality
1. Common law doctrine
a. Common law doctrine has been abolished courts can no longer create crimes
b. SCT has never declared that this is uncons, but it doesnt allow federal courts to create
crimes for matters prosecuted in federal courts
c. Commonwealth v. Mochan: A person may be prosecuted for committing a common
law crime even if such crime has not been enacted into legislation
d. Policy reasons for no punishment without law
1. Fair warning, control discretion, retroactivity, and vagueness
e. See Rogers v. Tennessee for notice and common law rules courts may abolish
common law rules when they are archaic
2. Statutory Interpretation
a. Notice requirement (DPC)
1. McBoyle v. United States: D transported an airplane which he knew to be
stolen; National Motor Vehicle Theft Act did not include airplanes, but D was
convicted under it; court held that an airplane was not a vehicle, thus the
statute did not give notice to the D
2. Notice is a legal fiction, but allows the exec branch to have clear enactments to
enforce
3. Keeler v. Superior Court: Since the statute didnt include fetus in its murder
statute, D didnt have adequate notice
a. Court used common law approaches to define the word human being
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b. HOWEVER, common law construction: Ex post facto doesnt apply to
courts, and notice, fair warning are impt (courts may abolish common
law rules if they are outdated) (Rogers v. Tennessee)
b. Rule of lenity
1. United States v. Dauray: D possessed unbound child porn, but convicted
under a statute that criminalized bound volumes of child porn; court ruled that
neither plain meaning, canon, or legislative history unequivocally supported
Ds conviction; thus applied the rule of lenity
2. Rule of lenity: Where a statute is ambiguous as to the term of punishment
imposed, it will be construed in favor of the less severe punishment (in Ds
favor)
3. Two approaches of the rule of lenity
a. Block judicial speculation about the significance of context and
legislative intent; adopt narrowest possible interp. Of statute
b. Last resort approach: Where all other tools of interp fail to clarify the
statutes meaning, construe the statute in Ds favor
4. Examples
a. Smith v. United States: Gun used as a barter in a drug transaction is not
equivalent to gun used as a weapon, thus a statute banning the use/carry
of a firearm during drug transactions doesnt apply
c. Statutory interp basics
1. Plain meaning, common law defn, canon, and legislative history
d. Void for vagueness
1. City of Chicago v. Morales: Two conditions 1) no adequate notice regarding
the type of conduct prohibited and 2) grants the police absolute discretion in
deciding when to enforce the statute
a. Notice: Disperse before criminal conduct occurs; impairs liberty if
loitering is harmless; minimal guidelines for law enf.
b. Absolute discretion do not address the degree of discretion;
subjective evaluation is this loitering or not?; may affect poor and
minorities (Papachristou)

V. Actus Reus
A. Voluntary action that is prohibited by the law (free will, volitional, no influence)
i. Cannot be forced (State v. Martin)
ii. When not self-inflicted, involuntary acts are not blameworthy
a. Unconsciousness is a complete defense (MPC) (People v. Newton)
b. Reflex (MPC)
c. Spasm
d. Sleepwalking
e. Convulsion (MPC)
f. Concussion
g. Hypnosis (MPC)
h. Status (addict) (Robinson v. California) (Powell v. Texas)
1. May lead to civil commitment if its dangerous enough, though
2. Violates Eighth Amend.
i. Policy reason: No deterrence
iii. Thoughts alone cannot be punished
iv. Statements made to a third-party cannot be punished
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v. HOWEVER, the following do not negate the actus reus requirement
a. Amensia
b. Couldnt control impulse to act (heat of passion ?)
c. Unintentional consequences
d. Unforeseen consequences
e. Habitual action
f. Awareness of a condition epilepsy (tendency to get seizures)
g. Anything self-inflicted (i.e., hypnosis)
i. Includes risks imposed on others (drunk driving)
B. Omissions
i. Omissions satisfy the actus reus requirement when they result in death to someone to whom a
duty is owed
ii. When is a duty owed? (Jones v. United States)
a. Statute
b. Status relationship
i. Parents to minor children, spouses to each other
ii. Courts have considered nontraditional roles
c. Contract
d. Voluntarily assume care and seclude the helpless person as to prevent others from
rendering aid
e. Creation of peril
i. Wherever the Ds action, even without his knowledge, imperils anothers
person or property and D becomes aware of events creating a peril, he has the
duty to take reasonable steps to prevent the peril from resulting in the harm in
question
iii. Omission must be the immediate cause of the crime
iv. Generally, a failure to rescue is not an omission that leads to legal liability (Pope v. State)
a. EXCEPTIONS: Status relationship, creation of peril
v. Physicians have no duty to continue treatment once it has been proven to be ineffective
(Barber v. Superior Court)
C. Possession as actus reus
i. Possession AND awareness that D has the thing hes charged with having
ii. MPC: Accused aware of his control for a sufficient period of time to be able to terminate his
possession

VI. Attempt (a lot of dangerousness)
A. Actus Reus
1. Preparation and attempts dividing line is between first and last steps
2. Common Law
a. Dangerous Proximity Test Look at the gap b/ween actions and the goal
i. Did the D see the victim? Was he at the scene of the crime? (Commonwealth v.
Bell)
ii. Was the D in close proximity to the victim at the time/place of crime? (People
v. Rizzo)
iii. Did the D engage in conduct that tends to effect the commission of the crime?
iv. Was there dangerous proximity to success?
v. Mere solicitation is not enough (Bell)
b. Equivocality Test: Ds conduct unequivocally manifested his criminal intent even if
the D is many steps away from the act
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i. Look at how clearly the Ds acts bespeak his intent, not at how far he has gone
ii. Like res ipsa loquitur
iii. Under this, a man who lights a match in front of a haystack and blows it out
when hes being observed actus reus
iv. Confessions or words wont suffice for actus reus
v. Acts of preparation are equivocal (D doesnt aim rifle but loads it)
vi. Criticism: haystack example
3. MPC
a. Substantial step test: Attempt requires that the D acted with 1) criminal purpose
(strongly corroborative of criminal purpose) and 2) engaged in conduct
constituting a substantial step toward commission of the target crime (United
States v. Jackson)
b. Example against United States v. Harper: ATM case; Ds never made a move
toward the cash or victims, so no sub. Step
c. Example for United States v. Moore: D apprehended while walking toward a bank
with a ski mask, gun, etc.
4. Not solicitation
5. Employing a hitman is not attempt
B. Mens Rea
1. Common law specific intent to commit crime even when a lesser mens rea would suffice
(intend natural and probable consequences of act) (Smallwood v. State)
a. May prove through circumstantial evidence if the consequence was in fact a very
likely result (probable) of Ds acts (Smallwood v. firing a gun at head)
b. May use social conditions and customs to prove (McQuirter v. State)
2. MPC substantial certainty test - purpose of causing or with the belief that the conduct will
cause the prohibited result
a. Example: Detonating a bomb inside a building knowing someone will be killed
C. Doctrinal tidbits
1. Attempted killing upon being provoked voluntary manslaughter
2. No attempted involuntary manslaughter
3. Attempted assault can exist (McQuirter)
D. Other inchoate crimes
1. Burglary: Breaking and entering a dwelling of another at night with the intent to commit a
felony therein
2. Assault: Unlawful attempt, coupled with present ability, to commit a violent injury on the
person of another
3. Stalking
4. Loitering
E. Solicitation
1. Solicitation unaccompanied by an act moving directly toward the commission of the
intended crime is NOT an overt act in attempt (State v. Davis)
a. Photos, hiring, drawings were acts of preparation, not attempt
b. Most courts take the Davis view
c. United States v. Church: Solicitation was a substantial step b/c the D selected the
weapon and said where he wanted the shots placed
2. Solicitation general crime: Inciting someone to commit a crime, but the person doesnt follow
through
E. Affirmative defenses
1. Abandonment
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a. Majority view: Traditionally, not a defense
b. Some states: Complete defense
1. Must have a voluntary and complete renunciation of criminal purpose
c. MPC: Voluntariness requirement
d. What is not voluntary? Changing mind because of . . .
1. Police
2. Victims insistence (courts are split)
3. Postponing for a better time
4. Different victim (transferred intent)
e. What is voluntary?
1. General timidity
f. Cannot abandon if D has put into motion forces that cant be stopped
2. Impossibility
a. Factual impossibility NOT a defense (People v. Duglash)
1. Other examples:
a. Gun not loaded
b. Impotent rape
c. Poison with harmless substance
d. Misfire
e. Spitting at someone to give them HIV
b. Legal impossibility
1. Negates the elements of a crime defense (hunting season is Nov.)
2. When no law exists defense
3. Mistake of law is no defense
c. Hybrid approach factual and legal impossibility (People v. Jaffe)
1. A majority of courts reject this
d. MPC There is no defense of impossibility if the circumstances as the D believed
them to be would have been a crime
F. Punishment
1. Jurisdictions: Reduced factor of punishment for full crime
2. MPC & minority view: Punishment for attempt is the same as the completed crime, except for
crimes punished by life imprisonment or death penalty

VII. Mens Rea (MPC adopted in half of juris)
A. Definition: Did the D intend, expect, or should have expected his actions to produce a particular
result? (Conduct, ac, and result) (Regina v. Cunnigham)
i. This includes foreseeing harm that may occur but recklessly doing the act
ii. Mens rea applies to all elements of an act (X-Citement Video, Inc.)
B. Purpose
i. Specific intent actions done with some specified purpose further in mind
a. Actual knowledge of some kind of particular fact / circumstance
ii. Definition
a. Conscious object to engage in conduct of that nature or to cause such a result
b. Aware of existence of AC or believes/hopes they exist
iii. Statutory terms
a. Intent
b. With intent to
C. Knowledge
i. General intent knew the nature of the acts performed; no knowledge of attendant circum
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a. Trespass, battery
ii. Definition:
a. Aware of conduct or AC
b. Result of his conduct aware or practically certain that his conduct will cause such a
result
iii. Statutory terms
a. Willfully
b. Willful blindness (United States v. Jewell)
1. Where a D is aware of facts indicating a high probability of illegality but
purposely fails to investigate b/c he desires to stay ignorant, he has knowledge of
illegality
2. Must take deliberate actions to avoid learning of the truth
3. Defenses: 1) Coercion, 2) Exigent circumstances, 3) Lack of meaningful
choice
4. Motive is not a defense (drug case with mom & detergent Heredia)
D. Recklessness
i. When D consciously disregards a substantial and unjustifiable risk that the material element
exists or will result from his conduct; risk must be of such a nature that, considering the
nature/purpose of Ds conduct and the circum known to him, its disregard involves a gross
deviation from the standard of conduct that a law-abiding person who observe in the Ds
situation
ii. Knowing (aware of danger), but proceeding anyway
iii. Subjective standard
iv. Use cba
E. Negligence
i. Definition: Standard met when the risk is of such a nature and degree that the failure to
perceive it constitutes a gross deviation from the standard of care that a reasonable person
would exercise
ii. Uses objective standard
iii. Fault is inattentiveness
F. Strict liability
i. Proof of intent not needed; SL is for social betterment (Balint)
ii. Can lead to vicarious liability; burden of acting upon a person otherwise innocent but
standing in responsible relation to public danger (Dotterweich)
iii. Not SL:
a. Crimes that are mala in se cant have a SL version of them (Morisette v. United
States)
1. Common law crimes and statutes codifying common law crimes
b. Some indication of congressional intent is needed to dispense with mens rea as an
element of a crime (Staples v. United States)
1. Offenses punishable by imprisonment cannot be understood to be public
welfare offenses, but must require mens rea (Staples)
c. When the offense carries possibility of criminal conviction for which probation or
imprisonment may be imposed
G. Vicarious liability
i. Can be imposed on organizations, not ind., for SL offenses (Dotterweich)
ii. Imposed for selling alcohol to minors, but courts have held that a person may not be
vicariously liable for actions of his employees that he didnt ratify (Guminga)
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iii. When sanctions are limited to fines, courts usually uphold convictions of employers for
employees illegal conduct, even without proof as to employer fault
iv. Courts are split when sanctions include imprisonment
v. Parental liability is an omission, not vicarious liability
H. Default mens rea
i. MPC: Recklessness
ii. SCT: Knowledge
I. Motive is irrelevant in mens rea analysis
J. Proof
i. Indirect through circumstantial evidence
ii. Use presumptions
a. Mandatory presumed fact always present when the fact is used to trigger that
presumption
b. Permissive more likely than not
VIII. Mistakes
A. Mistake of fact
1. Reasonable but mistaken belief is no defense (Regina v. Prince)
a. Applies today to minors, sexual behavior, and drugs (i.e. aggravating factors)
b. Prevailing view: Must negate mens rea to be a defense
2. Believing a statutory rape victim > age of consent is no defense (Garnett v. State)
i. Minority view: Mistake of fact defense is available
a. Only when its reasonable is it allowed
ii. MPC:
a. Never a mistake of fact when V < 10 years old
b. If reasonable, then aff defense D must prove that belief was reasonable
ii. People v. Olsen covers lewd acts on minors
3. MPC
a. Negates the mens rea required to establish a material element of the offense
b. Stated in law
c. Lesser crime principle - You take your victim as you find him, so defense is not
available in these instances
B. Mistake of Law
1. Common law: Mistake of the law is no excuse
a. Good faith mistaken belief as to meaning of statute is no defense (People v. Marrero)
b. BUT can be a defense when
1. Damage to property one owns himself
2. Larceny one believes he has a lawful claim to the property
2. MPC
a. Mistake of law is a defense if it negates the purpose or belief necessary to establish a
material element
b. Guidance from a 1) statute defining the offense has not been published; 2) acting in
reasonable reliance upon an official statement of law contained in a) statute, b) judicial
decision (judge entrapment), c) administration, or d) official interp of a public
officer/body charged with the admin, enf of the law defining the offense
3. Statutes
a. Congress sometimes makes specific intent (purpose) an element of certain complex
offenses / statutory schemes
15

b. Purpose can be satisfied by showing full knowledge of the provisions at issue and a
studied conclusion that these provisions are invalid (and refusing to abide by them)
(Cheek v. United States)
4. SCT
a. Estoppel violation of DP to convict a D for conduct that the government
representative, in his/her official capacity, had earlier stated was lawful
b. Statute concerning passive acts (mere presence) SCT has ruled that D must have
knowledge of statute or probability that the D had knowledge of a statute (Lambert v.
California)
1. EXCEPTION: Courts have gone the other way with sex offenses
5. Culture Defense
a. Not allowed, but considered in sentencing

IX. Homicide (ar, cd, mr, causation)
A. Actus Reus
1. Not participating in acts leading up to death
B. Corpus deliti death
C. Mens rea
1. Intent to kill substantial certainty, deadly weapon
2. GBH (MPC doesnt recognize) injury highly likely
3. Reckless indifference
a. Grabbing wheel, roulette (Malone), bullet bouncing off, dog
4. Nonhomicidal felony
D. Causation
1. A year and day rule
2. Failure to act is not a reckless indifference murder, unless relative
E. MPC framework
1. Murder 1: P, K, reckless indifference (felony murder)
2. Manslaughter: Rekclessly or murder but for extreme emotional/mental disturbance for which
there is a reasonable excuse / explanation; subjective standard
F. Murder 1 premeditated, deliberate, and malice
1. Premediation cool deliberate thought (three povs)
a. Time is immaterial if the killing was in fact intentional, willful, deliberate, premed
(Commonwealth v. Carroll)
b. There must be some period b/ween the formation of intent to kill and the actual
killing, which indicates an opportunity for some reflection on the intent to kill after it is
formed (State v. Guthrie)
c. Premeditation under Guthrie follows Andersons categories:
a) Planning: Facts regarding the Ds behavior prior to the killing which may
indicate a design to take life
b) Motive: Facts about Ds prior relat with the victim which may indicate reason
to kill
c) Manner of killing was so particular and exacting that the D must have
intentionally killed according to a preconceived design
d. MPC and some states reject premeditation
2. Other subsets: Lying in wait, torture, and poisoning
3. Defenses: Intoxication (some courts have not recognized), diminished capacity, heat of
passion, reasonable provocation, self-defense, necessity (MPC), duress (MPC)
4. Mitigation to manslaughter
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a. Yes heat of passion, reasonable provocation, imperfect SD
b. No
G. Murder 2 used when there is not enough premed, HOP; requires malice
1. Purpose but no premeditation
2. GBH
3. Reckless indifference
4. Not enough HOP
H. Voluntary manslaughter intent to kill but extenuating circum (no malice)
1. Heat of Passion
a. Act in response to a provocation sufficient to cause a reasonable person to lose self-
control (must inflame the passions of a reasonable man Girouard)
1. Traditional and modern Not reasonable words alone, unless they provoke
because they disclose facts that could be sufficient if the D had observed them
directly (Girouard v. State, modern view)
2. Reasonable under traditional view conduct alone
a. Extreme assault
b. Battery
c. Mutual combat
d. Illegal arrest
e. Injury/serious abuse of Ds close relative
f. Sudden discovery of a spouses adultery even secondhand
3. Reasonable under traditional view words + conduct
4. Minority view need not conform to any categories; up to jury to decide if
provocation and cooling time using the reasonable person standard (Maher v.
People)
5. Trend is to treat this as a jury question
6. Jurisdictions differ as to how to treat the HOP defense; some courts limit it to
finding the spouse in the act of intercourse
7. MPC subjective and objective question (People v. Casassa)
a. Subjective: Was D under an extreme emotional disturbance?
b. Objective: Was the disturbance reasonable
b. D acts in fact acts in heat of passion
c. The lapse of time b/ween provocation and the killing is not great enough that a
reasonable person wouldnt have cooled off
1. Common law significant lapse of time renders the prov inadequate as a
matter of law (Bordeaux)
2. Can use rekindling to surmount the cooling time argument, but many courts
reject this
d. D in fact didnt cool off by the time the homicide occurred
e. Nonprovoking victims
1. Derivative provocation
2. Misdirected reaction entitled to VM instruction
3. Violence aimed at nonprovoking victims (bystanders) not entitled to VM
instruction
4. Ds who elicit provocation courts and statutes are split
2. Imperfect self-defense
a. Unreasonably mistaken about dangers existence
b. Unreasonably mistaken about need for deadly force (intoxication)
c. Aggressor
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X. Defenses
A. Raise a reasonable doubt
B. Excuse it wasnt a good thing, but its not fair to say that the D committed the crime
1. A bad thing, but the D doesnt accept responsibility
C. Justification It was the right thing, good thing, permissible thing to do either in general or in the
special circum of the situation
1. Deny that it was a bad thing, but accept responsibility

XI. Justification (SD, property, law enf)
A. Protection of life and person (Self defense)
1. Free from fault requirement in a few courts
B. Maim/killing in SD
1. Unlawful and immediate threat (actual or apparent) of the use of deadly force against one
such that he (reasonably) believes he was in imminent peril of death or serious bodily injury
and the force was necessary to save him (United States v. Peterson)
C. SD checklist
1. D is resisting unlawful force
a. Not trespassing, larceny, or verbal provocation
2. Force must not be excessive
a. If force is excessive, roles may be reversed (aggressor/victim) (United States v.
Peterson)
1. NOTE: Majority of courts believe no SD when nonlethal attack (aggressor)
met by deadly force (must be free from fault extreme view in few courts)
b. MPC No deadly force if the D provoked the use of deadly force in the same
encounter; but if nondeadly force provocation, then D can use deadly force
3. Imminent peril or serious bodily injury
a. Inevitable harm is NOT imminent harm
b. A reasonable fear of harm in the future does NOT authorize a person to hunt down
and kill an enemy (Ha)
c. MPC Immediately necessary
4. Deadly Force: Force used by the D must not be deadly unless the danger being resisted was
also deadly force; current or imminent threat of deadly force
a) MPC: Kidnapping, rape, firearm deadly force requirement satisified
b) Injury is irrelevant
c) Whenever one knowingly creates a substantial risk of inflicting great bodily harm and
shooting in the direction of the other person
1. Force short of this must be not only unlawful and also exceptionally serious
5. Aggressor: D must not have been the aggressor unless
a) He was a nondeadly aggressor confronted by deadly force OR
b) He withdrew after his initial aggression and the other party continued to attack
6. Retreat: D must not be in a position from which he could retreat with complete safety unless
a) The attack takes place in the Ds dwelling
1. No duty to retreat Intruders, guests (majority view), cooccupants (MPC,
majority of recent dec.)
b) The D uses nondeadly force
c) Retreat knew opportunity to retreat (can do so with complete safety)
1. Deadly force results in death, not injury (high powered rifle)
2. He doesnt know he can retreat with complete safety (State v. Abbott)
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3. Burden: P has burden of proving BRD D could retreat in complete safety
D. Third-party SD can use deadly force to prevent the attack under the same circum that would
justify the use of deadly force by the endangered person him/herself
1. Rape of wife you can use deadly force and rapist can defend self (new rule, older courts
disagreed)
2. Unintentional killing of another justification transfers with intent
a. Cannot be deemed reckless
b. MPC Can be convicted of reckless endangerment and homicide if bystander dies
E. What can be used to support a claim of SD?
1. BWS relevant to the honesty of Ds belief that she was in imminent peril of death or
serious bodily injury, not on objective reasonableness (State v. Kelly)
a. Must have a reasonable belief that death/bodily harm was imminent
b. A minority of courts have moved to the subjective standard what a BW would have
believed
2. HOWEVER, BWS cannot be used when threat is not imminent (State v. Norman and Sands)
a. Inevitability is not imminence
3. BWS hiring a hitman NO SD
F. Reasonable mistake as to use of SD
1. Usually an objective test, courts may consider individuals physical disadvantages and
previous experiences / circum. (People v. Goetz)
a. Cannot consider culture or fearful delusions
G. Unreasonable mistake as to use of SD
1. Prevailing view: Murder
2. Minority view: Imperfect SD voluntary manslaughter
3. MPC: Involuntary manslaughter
H. Defense of property
1. Deadly force only allowed in burglary if character and manner of burglary creates fear of
great bodily harm
2. No deadly mechanical devices allowed (People v. Ceballos)
a. Statutes allow Ceballoss conduct
3. MPC deadly force when nondeadly force to prevent the commission of a crime would
expose the actor to substantial danger of serious bodily harm
I. Defense of law enforcement
1. Misdemeanor
a. Use all the force reasonably necessary to accomplish the arrest EXCEPT he may not
kill or shed blood to arrest a misdemeant who is fleeing (Durham v. State)
b. D resists Use force short of taking life
2. Felony
a. Unarmed felons escape No deadly force unless its necessary to prevent the escape
AND the officer has probable cause to believe that the D possesses a significant threat of
death / serious physical injury to officers/others (Tennessee v. Garner)
3. Serious physical harm to officers or others
a. May use deadly force; SD claim
4. MPC
a. Felon escape use DF
b. Deadly force justifiable
1. Arrest for felony AND
2. Arrest made by police officer AND force creates no substantial risk of injury
to other persons AND
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3. Crime involved use / threatened use of DF OR substantial risk that the person
will cause death / serious bodily harm if apprehension delayed
J. Choice of the lesser evil
1. Necessity D reasonably believes that his conduct is necessary to avoid a public/private
injury greater than the injury that might reasonably result from conduct (People v. Unger)
a. Applicable to prison escape cases (Unger)
b. Reasonably believes met by Ds capabilities v. others
c. MPC harm to be avoided > sought to be prevented by law defining offense charged
d. Some statutes use clean hands doctrine
e. 9th Cir. definition of necessity; used in civil disobedience (Schoon)
1. Choice of lesser evil
2. Acted to prevent imminent harm
3. Reasonably anticipated a direct causal relat b/ween their conduct and harm to
be averted
a. Alleged harm will be abated by the illegal action
b. Close nexus b/ween alleged harm and illegal act
4. No legal alternative to violating the law
2. Lovencamp Factors
a. Prisoner faced with specific threat of death, forcible sexual attack, substantial bodily
injury in immediate future
b. No time for complaint to authorities OR history of futile complaints
c. Not time for an opp to resort to the courts
d. No ev. of force or violence used toward prison personnel or other innocent persons in
the escape
e. Immediately report to the proper auth when he has attained a position of safety from
the immediate threat
3. Medical necessity
a. State courts are split on medical marijuana
b. Federal law, however, takes precedence over more permissive state standards
4. Econ necessity
a. Generally, not accepted as a justification
5. Civil disobedience
a. Not accepted in indirect civil disobedience cases (United States v. Schoon)
6. Taking lives
a. Not allowed under necessity (Regina v. Dudley & Stephens)
b. MPC Permits taking life to save life (killing one person is deemed less evil than the
death of one more)
1. BUT the maximizing lives principle doesnt limit defensive force when several
assailants threaten a single persons life
a. Lives prevail over rights in bystander cases
c. Courts would never permit killing someone for their organs
d. Necessity not allowed for torture of suspected individuals (Public Committee Against
Torture v. State of Israel)
7. Euthanasia
a. Desire for denial of life support be shown through clear and convincing evidence
(Cruzan v. Director, Missouri Dept of Health)
b. Right to assisted suicide is not a fundamental liberty interest protected by DPC
(Washington v. Glucksberg)

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XII. Excuse
A. The acts of the D were harmful, he/she couldnt have fairly been expected to do so otherwise
1. Focus on actor, not act
2. Usually some disability
B. Duress (aff defense)
1. Threat of or use of force by a third person sufficiently strong that Ds mind was overborne
2. In the common law, these are sufficient to establish duress
a. Threat by third person
1. Against person, not against property or finances
b. Producing a reasonable fear in the D
c. That he will suffer imminent or immediate
1. Delayed death doesnt meet this requirement (Fleming)
2. But delayed harm may suffice if theres no opp to escape (Contento-Pachon)
d. Bodily harm or serious injury
3. MPC D engaged in conduct b/c (subjective) (State v. Toscano)
a. Coerced to do so
b. By the use of or threat to use unlawful force
1. Against person, not against property or finances
c. Against the person or the person of another
d. Which a person of reasonable firmness in his situation would be unable to resist
1. Consider size, strength, age, and health BUT NOT temperament, mental
factors
4. NOT a defense to
a. Murder (except for MPC duress)
1. Courts are divided esp. over felony murder
2. Erdemovic: Duress only considered in sentencing
b. When actor recklessly placed self in a situation in which it was probable that he would
be subject to duress
c. Negligent in placing self in a situation, where negligence = mens rea for offense
d. Woman acting under husbands command
e. Contributory fault (join gang) (MPC)
5. Courts are divided over
a. Mental retardation = duress
b. BWS = duress
6. Duress may excuse certain situations that the maximizing lives principle wouldnt justify and
may excuse forced to drive while drunk
C. Voluntary intoxication
1. Common law and majority rule intoxication can negate specific, not general, intent (People
v. Hood)
2. MPC and courts: A defense if it negates mens rea
3. Can be used to demonstrate insanity, nonparticipation, mistake
4. May be considered in sentencing
D. Involuntary intoxication
1. MPC Not self induced or pathological is an aff defense if at the time of the conduct, the
actor lacked substantial capacity to appreciate its criminality or to conform conduct to the law
2. Usually allows D to assert defense of temporary legal insanity
3. If D is voluntarily impaired to a degree insufficient to meet the test for legal insanity, no
defense
21

4. English courts disagree; shows courts unwillingness generally to use intoxication as an
excuse (Regina v. Kingston)
E. Legal Insanity (jury question; different from competency and mental illness)
1. May be a defense to a criminal charge or preclude a guilty plea, trial, sentencing, or exec
2. Competency to stand trial (capability to understand proceedings or stand in own def.)
a. If you seem competent later (even after trial date), you may be tried (Green)
b. MPC As long as incapacity endures, incompetent Ds may not be tried, convicted or
sentenced
c. Full amnesia but in full command of faculties competent to stand trial
d. Govt can use medication to bring about competence (Sell)
1. Govts interest in trying D for crime is important
2. Forced med. is substantially likely to render D competent and substantially
unlikely to have side effects that will help D assist the defense
3. Alternative/less intrusive treatments are unlikely to achieve substantially the
same results
4. Treatment is medically appropriate
3. Execution of the insane uncons (Ford)
a. No defn of insanity, so states have their own rules; one state allows medicine
4. Execution of the mentally retarded uncons (Atkins)
5. Who may raise the defense?
a. Defense leads to a longer confinement
1. Civil commitment dangerousness and mental illness proven by CCE
2. Mandatory confinement is not uncons (Jones)
b. Burden of proof
1. Minority view (once majority rule) Burden is on P to prove sanity BRD
2. Majority view Burden of proof on D
6. Rules
a. Majority view: MNaghtens Rule (MNaghtens Case)
1. At the time of the act, D had a mental disease a) so as to not know the nature
and quality of the act he was doing or b) D didnt know what he was doing was
wrong
a. If D knew his act was wrong, but didnt know of illegality GUILTY
b. Wrong wrong legally, not morally (State v. Crenshaw, but courts are
divided)
c. Mental disease Legal concept - D unable to distinguish b/ween right
and wrong (State v. Guido)
b. Irresistible Impulse test
1. D found legally insane if, as a result of metal disease, he is unable to control
his conduct
a. Mental disease Legal concept - D unable to distinguish b/ween right

2. Courts have overruled this (United States v. Lyons)
c. Minority view: Substantial capacity test (MPC) (Blake v. United States)
1. A D is not responsible for criminal conduct if, at the time of the conduct as a
result of mental disease, he lacks substantial capacity either to appreciate the
wrongfulness of his conduct or to conform his conduct to the requirements of the
law
22

a. Mental disease Legal concept - D unable to distinguish b/ween right
b. Courts have overruled the conform conduct prong (United States v.
Lyons)
d. Standard under federal law
1. D is unable to appreciate the nature and quality of the wrongfulness of his acts
7. Several states have disallowed insanity defense, SCT: open to state choice (Clark v. Arizona)
8. MPC prohibits this defense for psychopaths
F. Automatism
1. May plead insanity or involuntariness (no actus reus)
a. Courts are split on whether both or either one can be plead
1. Mutually exclusive Insanity may be pled if automatism caused by mental
disorder
G. Diminished Capacity lacked mental state for crime
1. Is NOT the same as diminished responsibility
2. MPC and majority view Evidence of condition of mind at the time of the crime may be
used to prove that the situation was such that a specific intent was not entertained (no deliberate
/ premed design) (United States v. Brawner)
a. Minority view HOWEVER, SCT has ruled that due process doesnt require
consideration of evidence of mental illness on the element of mens rea (Clark v.
Arizona) (some states, thus, have a total ban)
1. Note there are two types of evidence: circumstantial and mental; SCT says
DPC doesnt require the second
H. Changing Patterns
1. Status crimes are not punishable (no actus reus) (Robinson) (Powell)
2. However, status cannot be a defense to an actus reus
a. Status is not a defense to drug possession (United States v. Moore)

XIII. Theft Offenses
A. MPC (theft) Unlawful taking, exercising unlawful control over, movable prop of another with a
purpose to deprive him thereof
B. Larceny (crime against possession; title doesnt matter)
1. Trespassory Taking
a. D has possession NO trespassory taking (Commonwealth v. Tluchak)
b. Possession & conversion fraudulent conversion or larceny by bailee (Tluchak)
1. Conversion = destroyed, sold, deprive owner of utility
c. Consent (voluntarily giving up possession) NO trespassory taking (Topolewski v.
State)
1. Regardless of mens rea
d. Voluntarily giving up possession + possession obtained through fraud/trickery
larceny by trick (Hufstetler v. State)
1. As long as owner intended to part with possession, not title
a. Owners belief, not Ds belief, controls
2. Owner intended to part with possession and title False pretenses
3. Trick or fraud vitiates consent
e. Employer employee & NO third person
1. Larceny b/c employee only has custody, not possession
f. Employer employee & third person
23

1. Employee appropriates AFTER possession has transferred to employer
larceny (Nolan v. State)
2. Employee appropriates BEFORE possession transfers to employer embezz
g. Finders of misplaced, abandoned, and lost property
1. One who takes possession = bailee; conversion = larceny or larceny by bailee
(Burns v. State)
2. Mislaid property appropriated larceny (possession never left the owner)
3. Lost property appropriated even if finder can discover owner larceny
a. Intent to appropriate must accompany finding otherwise no larceny
4. MPC (all categories) theft if failure to take reasonable measures to restore
prop to a person entitled to have it
2. Carrying Away (Asportation)
a. Usually movement of goods
b. Automobile (one court) D enters automobile with requisite state of mind
c. Computers (Congress) Intentionally access computers without auth or exceeding
auth access, thereby obtaining info from any protected computer
d. MPC Exercise of unlawful control over movable property
e. Self service stores Larceny if clothing is taken away
3. Personal Property of Another
4. With Specific Intent to Deprive the Possessor of it Permanently
5. No defense (MPC)
a. Theft from spouse
6. Aff. Defenses (MPC)
a. Mistake of fact unaware that property belonged to someone else
b. Acted under an honest claim of right to the property or service involved or that he had
a right to acquire or dispose of it as he did
c. Took property exposed for sale, intending to purchase and pay for it promptly, or
reasonably believing that the owner, if present, would have consented
d. Owner consented (common law)
C. Robbery
1. Common law: Larceny + violence or the threat of immediate violence to the victim + taking
the property from owners person or presence
a. Purse, wallet snatching wont suffice No violence
b. Threat of immediate violence Gun to head (your money or your life)
1. Force/threat must be used BEFORE or DURING robbery
2. Subjective standard: SD doesnt matter; just need apprehension
2. MPC guilty of robbery if in the course of committing a theft
a. Inflict serious bodily injury upon another
b. Threaten another with or purposely put him in fear of immediate serious bodily injury
OR
c. Commits or threatens immediately to commit a felony in the first or second degree
D. Extortion (blackmail in some juris)
1. Common law Larceny + threat of future violence
2. MPC one obtains the prop of another by
a. Inflict bodily injury on anyone or commit any other criminal offense
b. Accuse anyone of a criminal offense
c. Expose any secret tending to subject any person to hatred, contempt, ridicule or impair
his credit or repute
d. See Page 1244
24

E. Embezzlement usually fiduciary relat required; property already in possession
1. Fraudulent
2. Conversion of
a. Conversion BEFORE property is in possession of employer embezz
b. Conversion (appropriation) AFTER property is in possession of employer larceny
(Nolan)
3. Property of Another
a. Collection agency failing to remit payments (State v. Riggins)
1. Satisfies principal-agent fiduciary relationship
2. Money entrusted to collection agency
4. By One Who is Already in Lawful Possession of It
a. Rightfully possessed property
F. False pretenses possession + title
1. False representation of a
a. Known to be false D has personal knowledge of falsity (Nelson v. United States)
2. Material present or past fact
a. Majority rule no future promises are regarded as material present/past facts
b. Minority rule a promise made in exchange for something of value with no present
intention to perform that promise is the obtaining of property by false pretenses where
the fraudulent and deceitful acq includes both title and possession (People v. Ashley)
3. Which causes a person to whom its made
a. False representation must materially influence owner to part with his prop, but need
not be the only reason
b. But for reliance had not engaged in transaction but for the false representation
(Nelson v. United States)
c. Does the falsity of the statements affect the transaction? (Regent Office Supply Co.)
4. To pass his title to
a. Handing over money for a specific purpose possession passes and larceny if
misappropriated (Graham v. United States)
1. Title remained with owner until specific purpose met
2. Fraud vitiates consent
3. If fraudulent intent formed later on, then still trespass (and larceny)
5. His property to the misrepresenter
6. Who knows his representation is false and intends to defraud
a. Unnecessary to show that D benefitted from false pretenses
b. Mens rea pretenses knowingly made and with intent to deceive
1. Specific intent
2. Intent may be inferred from unlawful acts (Nelson v. United States)

XIV. Rape
A. MPC: Male who has sexual intercourse with a woman not his wife is guilty of rape if . . .
1. He compels her to submit by force or by threat of imminent death, serious bodily injury,
extreme pain, or kidnapping, to be inflicted on anyone (vs. common law) or
2. He has substantially impaired her power to appraise or control her conduct by admin or
employing, without her knowledge, drugs, intoxicants, or other means for the purpose of
preventing resistance (1. administer intoxicant 2. without Vs knowledge and 3. for the purposes
of preventing resistance)
3. The female is unconscious
4. The female is less than 10 years old
25

B. Common law: Unlawful sexual intercourse with a female by a man by means of fear or force and
without her consent
1. Actus reus: Force requirement
a. Not psychological force, implicit threats (Alston), threats to commit future harm,
duress, intimidation (Thompson), apprehension, verbal threats
b. Physical compulsion or imminent threat of physical compulsion or nonphysical
constructive force or threats of bodily harm at the time of the penetration
1. Boss is not nonphys constructive force; police officer is (DePetrillo)
2. Meant physical force or violence (Mlinarich)
c. Minority view Force required for penetration is sufficient to meet the req (State in
interest of MTS)
d. Europe look at coercive cirumstances (M.C. v. Bulgaria)
2. Actus reus and mens rea: Lack of consent
a. Traditional view: subjective unwillingness and external acts refusing consent
1. Resistance: Established through proof of resistance (State v. Rusk)
a. Roughly half states reasonable resistance
b. Others Resistance req. dropped, but courts still consider it probative
2. V failed to resist b/c of reasonable, genuinely ground fear (Rusk)
a. Death/bodily harm
b. Fear so extreme as to preclude resistance
c. Fear which would render her mind incapable of continuing to resist
d. Fear that so overpowers her that she dare not resist
b. General rule: Lack of consent = woman used words/acts that would make it clear to a
reasonable person in the mans position that she wasnt consenting + resistance probat
1. Silence but a failure to consent does NOT meet the consent requirement
c. Never consent:
1. Unconsciousness
2. Mental incompetency
a. MPC liability when D knows that the V suffers from mental
disease/defect which renders her incapable of appraising the nature of the
conduct
3. Below a certain age
4. Incapacity drugs and alcohol given without her knowledge
a. Many states dont impose liability if V was in an incapacitated
condition short of complete unconsciousness and if someone other than
the D drugged the victim
b. Minority view Vs voluntary intake of drugs/alcohol invalidates
consent; two ways to determine (Giardino)
1. V is unable to make a reasonable judgment as to the
nature/harmfulness of conduct
2. Whether V would not have engaged in intercourse with the D
had she not been under the influence of intoxicants
d. Deception
1. Fraud in factum: NO consent
a. Treating her with instrument but actually having sex
2. Fraud by inducement: Consent
a. Controlling state of mind D (are words meant to be a threat as
spoken? If not no culpability) (People v. Evans)
b. Diverse interp no culpability (People v. Evans)
26

c. Positively cooperate (know its sex) no culpability (Boro)
e. Mens Rea: Subjective belief of consent
1. Generally no defense to a rape charge (Commonwealth v. Sherry)
2. Jury must consider consent from an objective pov
3. Mistake unreasonable defense of mistake of fact not available
4. Minority view: Mistake reasonable not a defense to the crime
(Commonwealth v. Fisher)
5. Majority view: Mistake reasonable defense to crime of rape
6. Vs active and equal participation in intercourse no mistake of fact defense
a. Coupled with force (Tyson)
3. Marital exemption
a. MPC preserves marital exemption
b. Majority view NO marital exemption (Liberta no rational basis)
C. Proving Rape
1. Corrobation no state now requires corroboration in forcible rape cases
2. Jury instructions
a. Old examine the females testimony with caution
b. Majority view such an instruction is barred
c. MPC evaluate females testimony with special care
3. Cross examination / rape shield laws
a. Old character, prior sexual experiences were probative on the question of consent
b. Current rape shield laws limit the admissibility of Vs prior sexual behavior
1. Some may include prior sexual behavior when its with the D
2. Some courts a Ds cons right to engage in effective cross-examination is
denied when he is not permitted to introduce evidence of the Vs prior sexual
activities so as to establish an alleged bias, prejudice, or ulterior motive and thus
attack her credibility as a witness (State v. DeLawder)
3. Impeachment statutes > rape shield law (Harris)
4. Psych evaluations governed by the standard in Govt of the Virgin Islands v.
Scuito and under discretion of trial judge bound by these four factors:
a. Right to privacy
b. Increase in trauma
c. Harassment
d. Deters victims from reporting rapes
D. Statutory schemes
1. New York: no gender assigned to defendant
2. Wisconsin: No force requirement for third degree rape
E. Statutory rape
1. Majority view: Age of consent > 16 years

XV. Causation link b/ween act and harmful result must be proven BRD; can have more than one cif and pc
A. Cause in fact
1. But for cause the harmful result would not have happened but for the act
a. Guy wounding v. another guy shooting at heart
2. Substantial factor test Ds act was a substantial factor in bringing about harm
3. Shortening of life test and lengthening of life test
4. NOTE: Must prove BRD but for the cause, V would have survived
B. Proximate cause sufficiently close relat. to resulting harm
27

1. Failure to intervene D had a duty to intervene, and the harm b/ween Ds failure to intervene
and harm is not too tenuous (Dads failure to provide medical care for kid)
2. Unintended victims
a. Transferred intent (MPC and common law support app to homicide and battery)
1. Unforeseeable victim doctrine still applicable
2. BUT Intent for one type of crime cannot transfer to another crime
3. No application to crimes of attempt (D wants to fatally injure X but wounds
V charged with battery for V and attempted murder for X, but not attempted
murder for V)
4. Courts are divided on whether ti dies (i.e. bullet passes through V and kills X)
b. Different property destroyed transferred intent (but may not apply to deaths)
c. Mistaken victim not a defense to homicide (needs to negate mental state)
3. Unintended manner of harm
a. Generally no liability for bizarre, unforeseen chain of events
b. MPC not liable if result is too remote or accidental in its occurrence to have a
bearing on the Ds liability
c. Direct causation D usually liable
1. Small differences in types of injury
2. Slightly different mechanism (dying of tripping rather than poison after taking
poison)
3. Pre-existing weakness: You take your victim as you find him
a. Remember concurrence! (battery resulting in a death)
b. However, if theres some defect after the skirmish, its an intervening
cause
4. Death caused without physical impact, but as a result of fright or stress
(Stamp)
a. But if unrelated or related disease (but for disease) contracted AFTER
assault superseding
5. Come to rest in apparent safety superseding
d. Intervening acts
1. Dependent (but for the Ds actions) v. independent
2. Independent i. cause breaks the chain of causation if its unforeseeable for
someone in Ds position
3. Dependent i. cause breaks the chain of causation if its unforeseeable and
abnormal (ambulance crashing is not abnormal)
a. People v. Acosta, Brady, Matos
b. Not necessary that ultimate harm related to D (People v. Arzon)
4. Third persons superseding if its independent + unforeseeable OR dependent
+ unforeseeable + abnormal
a. Medical treatment not superseding unless unforeseeable and
abnormal
1. Negligent treatment not abnormal / superseding
2. Reckless or grossly negligent treatment superseding only if
its the sole cause of the death (Shabazz)
3. Curing other unrelated problems superseding
4. Disease or infection caught in hospital
a. Wounds needs to be abnormal to be superseding
b. By-product of presence in hospital superseding
b. Identical act (i.e. a third person takes the poison) not superseding
28

c. Failure to act not superseding (doctor who doesnt treat) (Main)
1. Duty and fails to act may be superseding (prove BRD)
(Jones)
d. Providing a weapon superseding UNLESS intent to kill (People v.
Campbell)
1. Must participate in the final acts of death (People v. Kevorkian)
2. Conduct that assists in suicide is not enough (Kevorkian)
5. Act by victim (usually in direct response to D, so not superseding unless
abnormal)
a. Commit suicide
1. Driven insane by Ds act not superseding (Stephenson v.
State)
2. D encourages suicide
a. Common law aiding/abetting suicide, not murder
b. MPC guilty of homicide
b. Refusal of medical aid not superseding (Carson remove ventilator)
c. Attempt to avoid danger if abnormal, superseding (usually not
abnormal)
1. Attempt not required to be prudent or reasonable (Kern)
d. Victim subjects self to danger not superseding (Commonwealth v
Atencio)
1. Drag racing courts are divided (Commonwealth v. Root)
(McFadden v. State)
e. Follow Ds instructions to call an exploding number not superseding
6. Act by D (courts are reluctant to recognize this as superseding)
a. Mistake as to death not superseding
7. Nonhuman events generally superseding
8. Other
a. Providing a weapon supra
b. Providing a drug seller responsible for foreseeable but freely chosen
acts of purchaser

XVI. Accomplice Liability
A. Traditional common law view: Principal (first, second), accessory before and after
B. Today
1. Accessories = same punishment and principals EXCEPT FOR accessories after the fact
a. After the fact is a separate penalty
2. May convict accessories before P as long as Ps crime is established BRD
3. Accomplices are charged with the same substantive crime committed by P
4. Sentencing guidelines deal with the actual role the accomplice played
C. Accomplice: One who facilitates, aids, encourages another to commit or plan a crime
D. Conspiracy: An agreement b/ween two or more people to commit a crime
1. Liable for all acts, planned or not, of coconspirators in furtherance of criminal purpose as
long as the acts were reasonably foreseeable
E. Mens rea
1.

29

Force, actus reus and mens rea

Mens Rea, Actus Reus and Causation Elements of Criminal Law

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