Criminal Law Outline:

General Principals:
Theories of Punishment: Incapacitation (cannot commit further crimes if imprisoned); Special
Deterrence (thief); General Deterrence (society); retribution (vent societys sense of
outrage/need for revenge); Rehabilitation (conform criminal behavior to societal norms);
Education (society of what is right/wrong)
Merger: CL: misdemeanor felony; no merger of offenses of the same degree
Modern Times: Generally, no merger except: solicitation/attemptcompleted crime
and lesser included offenses into greater offenses
Elements of a Crime: actus reus, mens rea, both at the same time, harmful result, but-for cause
Actus Reus: must be a voluntary act (conscious exercise of will) or an act of omission(failure to
act/negative act)
Rationale: involuntary acts are not deterred by punishment
Not a product of actors determination(a pushed b into c, b not at fault)
Reflexive or convulsive acts (epilepsy does not count)
While unconscious or asleep (unless actor brings about the involuntary behavior through
voluntary actions)
Martin v. State: Martin was taken from his home onto a public highway and charged with public
drunkenness. Case was dismissed because act means voluntary act, and Martin did not
voluntarily go into the public.
State v. Utter: Dad, dont Father killed his son while drunk and claimed there was no act on his
part b/c he was unconscious. Court determined that because he voluntarily got drunk and
brought about the state in which he killed his son, there was not defense.
Omission: Generally, not legally bound to act but three requirements for when person is legally
bound
1. Legal Duty to Act created by: statute, assumed contractual duty, relationship, voluntary
assumption of care, so secluding the person so as to prevent others from aiding
them(Jones v. United States) May also be a duty if person created the risk of harm(creation
of peril)
2. Knowledge of facts giving rise to a duty has to be aware that there is a need for action
(i.e. has to know that kid is drowning)
3. Reasonably possible to perform: no legal duty to perform if doing do would put own life
at risk
People v. Beardsley: Husband got drunk with another woman while his wife was away and
woman took drugs on top of her drinking that caused her to pass out and ultimately die. Man
passed off the woman to another to take care of her and was charged with her murder. Court
determined that he had no legal duty to the woman relating it to two friends getting drunk; not
like if she had been his wife or child.
Rationale: Omissions: More difficult to assess why someone refrained from acting; where
do you draw the line in requiring people to act; well-meaning bystanders can make problems
worse by helping; hinders freedom by forcing ppl to act(American law is about prevention and
not about compelling good Samaritan-ism)
Barber v. Supreme Court: A doctor who stops giving treatment upon request by family is accused
of murder and conspiracy. Main question was whether there was a duty to act. In this case
treatment was ineffective b/c patient will never recover substantial brain function. The court says
the physician has no duty to act once the treatment is found to be disproportionate (treatment
shown to be ineffective)
Mens Rea: guilty mind; a guilty or wrongful purpose; a criminal intent
Specific Intent: where the definition of the crime requires doing of the act w/a specific intent or
objective
Prosecution must prove existence of that particular intent to prove guilt of that crime
Malice crimes are not crimes of specific intent that are open to specific intent defenses
General Intent: awareness of all the factors constituting the crime( needs not be certain,
simply aware of high likelihood that factors exist (can be inferred from the act)
Transferred Intent: If intended harmful result to a particular person or object and in trying to
carry it out, caused a similar result to another person or object, intent will be transferred from
intended person to one actually harmed (generally applies to crimes like homicide, battery,
arson, etc. but not to attempt)
People v. Conley: High school kids having a party, one group approached the other and
demanded beer, they said no; Conley attempted to swing wine bottle at head, hit another kid in
the face, causing him to fall to the ground. Aggravated assault, intent to hit kid 1 transferred to
kid 2; intent to purposefully/knowingly cause great bodily harm/permanent injury was inferred
from the surrounding circumstances, wine bottle, no warning, and force of the blow
Culpability/MPC:
Intentionally: At CL, basically the equivalent of MPC purposely and knowingly in one.
Purposely: its their conscious object to do the conduct or cause the result.
Knowingly: aware that the result is practically certain to follow. (Encompasses idea of
willful blindness)
Recklessly: consciously disregard a substantial and unjustifiable risk.
Negligently: should be aware of a substantial and unjustifiable risk. There is no subjective
fault. (Violation of statute or ordinance may be evidence of negligence)
State v. Nations: hires a girl who is underage to dance and charged w/child endangerment;
requires knowingly under Missouri law which doesnt encompass willful blindness unlike
MPC:acquitted b/c did not actually know; only acted recklessly
United States v. Morris: found guilty of fraud and abuse act for accessing government computers
and causing them to crash/freeze. Statute punished all who intentionally access govt. computers
and damages them; looked to procedural history to uncover the meaning of intentionally still
found guilty
Morisette v. United States: repurposed bomb casings and sold them; accused of stealing them
based on statute, claiming it did not have specific intent requirement like CL larceny; court
found, absent contrary indication, CL source of law would be followed as to the requisite intent of
the statute
Strict Liability: ones that dont require awareness of all of the factors constituting the crime.
Mistake of fact is not available defense.
Garnett v. State: Garnett was young retarded man who was 20 and convinced by his 13yo old
friend (who claimed to be 16) to go up to her room and then they had sex; convicted of statutory
rape b/c strict liability; Some states allow mistake of fact defense statutorily, otherwise not
normally available for strict liability crimes
Mistake/Ignorance of Fact: affects criminal guilt only if it shows that the did not have the
requisite intent for the crime
Reasonability: malice, general intent crimes: has to a mistake a reasonable person would
have made under the circumstances
Specific Intent Crimes: any mistake of fact negates the crime(reasonable or not) if it
negates the specific intent of the crime
People v. Navarro: took four wooden beams under the belief that they had been abandoned as
worthless and owner would not mind if he took them; acquitted b/c his belief negated the specific
intent to permanently deprive the owner of the boards as required by the law(statute did not
require reasonability of his belief)
State v. Blurton: Blurton was convinced that he was an agent in an undercover operation that
required taking some stuff from Walmart but told it would be returned; participated and acquitted
b/c did not have the specific intent to permanently deprive Walmart of its goods
Moral v. Legal Wrong:
Moral Wrong: Regina v. Prince: guy took unmarried 14 yo girl thinking she was 18: even if
mistake of fact is reasonable, intentional commission of immoral act is sufficient for
requisite blameworthiness to justify conviction [contrary to the rule of natural justice]
Legal Wrong: s conduct, based on the facts as he believes then to be, constitutes a
crime, may be convicted of more serious crime than one actually committed
Mistake/Ignorance of Law: Generally, not a defense that unaware of the law. [May negate if
mental state required certain belief as to some collateral aspect of the law]
People v. Marrero: arrested for possession of an unlicensed firearm in a NY club in violation of NY
penal code. Claimed he thought his interpretation of the law was correct; court claimed
ignorance of the law was no excuse
Exceptions:
law/statute prohibiting the conduct was not published or made reasonably available prior
to the conduct
Lambert v. CA: on trial for failing to register as a convicted person; won b/c there was no due
process of law as she had no prior notice of the statute
reasonable reliance on statute of judicial decision(even if later over-ruled/deemed
unconstitutional)
reasonable reliance on official interpretation: officials include those charged by the law to
interpret, administer, enforce the law [not defense at CL]
reasonable reliance on advice or private counsel: not a defense but may negate a mental
element like knowingly/purposefully violating the law
Homicide:
Murder: Unlawful killing of another w/malice aforethought; malice can be express or implied (no
degrees at CL)
Malice Aforethought: CL: (1) the intent to kill, (2) intent to cause grave bodily harm, (3)
recklessness (depraved heart), or (4) the intent to commit a felony (felony-murder rule).
Deadly Weapon: implies an intent to kill and includes any instrument or part of the body
used in a manner calculated or likely to produce death or serious bodily injury
Modern Law: Degrees of Murder: All murders are in the second degree unless:
deliberate and premeditated(and sometimes, willful): premeditate=to think about before
hand; deliberate=to measure and evaluate the major facets of a choice or problem= 1 st
degree felony murder
by statute that makes certain types of murder, murder in the first degree
Premeditiation/Deliberation: mental factors, so determined on circumstantial evidence.
Some things to look for(from State v. Jackson):
o Want of provocation by deceased
o Conduct and statements of before and after killing
o Threats/declarations of before and during
o Ill-will or previous difficulty between parties
o Dealing of lethal blows after deceased has been felled/rendered helpless
o Evidence that killing was done in a brutal manner
State v. Guthrie: dishwasher gets teased by his coworker and then snaps: Problem w/jury
instructions in that they do not allow the distinction with first and second degree murder and
thus ruled that murder in the first degree required intentional, deliberate, and premeditated
killing (any period of time(no min)=sufficient)
Midgett v. State: child abuse to death; mens rea was not sufficient for first degree murder and
past history of abuse could not be counted; fathers intent was to continue to abuse him, not kill
him- no evidence of premeditation or deliberation which is required for the crime of first degree
murder
State v. Forrest: father was critically ill and hospitalized, son went to hospital with a gun and
killed his father, claiming that he had promised to not let him suffer; shot him 4 times in the head
and never denied doing it; he argued insufficient evidence of premeditation and deliberation(but
had a gun and time)
Manslaughter: CL- the unlawful killing of another human being without malice aforethought.
Voluntary-upon a sudden quarrel or heat of passion
Heat of Passion Defense: requirements for mitigation from murder to manslaughter: (1)
Adequate provocation, (2) heat of passion, (3) lack of opportunity for the passion to cool,
and (4) causal connection between provocation, passion, and act.
o At CL, words alone never constitute adequate provocation. However, words
adequate if accompanied by conduct indicating a present intention and ability to
cause the bodily harm--threatening pose, saying "I am going to kill you", etc
 o At CL, adequate provocation almost always involved unlawful conduct on part of
the provoker. Ex. include while being subjected to serious battery or threat of
deadly force. Adultery can help a case at CL, seen as manslaughter not muder;
murder if only fianc(more to do with wife=property aspect)
reasonable man standard Three factors :
(1) the gravity of harm that foreseeably would result from the s conduct;
(2) the probability of such harm occurring; and
(3) the burden to the of desisting from the risky conduct.
Girouard v. State: wife tried to provoke her boyfriend by saying she was cheating on him; in
middle he leaves to go to the kitchen and comes back with a knife hidden behind a pillow; waits
for her to rant some more and then stabs hers 19 times; after takes a shower, tries to commit
suicide; but then calls the police: issue was: if her words were enough to incite a reasonable
man; Court said no.
Involuntary (unintentional killing(unjustified risk-taking): in the commission of an unlawful
act not amounting to a felony, or in the commission in an unlawful manner, or without due
caution and circumspection, of a lawful act which might produce death.
Negligent conduct- wanton or reckless disregard of human life= involuntary manslaughter
of the gross negligence variety--> Life-endangering acts so reckless that they manifest a
wanton indifference to human life - murder of the depraved heart variety
Berry v. Superior Court: guy has a fighting dog chaining in his yard, behind a fence, protecting
his marijuana plants; two year old wandered over to where the dog was and was killed by the pit
bull; The court concludes that there is sufficient evidence that the knew the dog could harm
human beings. Goes to trial. In California, the must be shown to have had knowledge of the
high degree of risk, or in other words, they must be shown to be reckless, in order to be
charged with murder as opposed to manslaughter. No one claims that there was intent to kill.
Berry took an unjustifiable risk. The expected harm (pL) exceeded the benefit of keeping the dog
in the neighborhood (B). A reasonable person would not take such a risk. If the reason for taking
the risk is socially useless or unacceptable, then any risk is unjustifiable.
State v. Hernandez: drove drunk and got into an accident that killed someone. He was charged
with involuntary manslaughter. At trial, stickers and pins with pro-drinking slogans were
presented as evidence over his objection. He was convicted and he appealed on the basis that
the pins and stickers should not have been admitted into evidence. Evidence is admissible so
long as it goes to show that the had the mens rea necessary for the particular offense
charged. The argues that the evidence in dispute speaks only to his character rather than his
awareness of risk. His awareness of risk was not at issue because the prosecution charged him
with a crime that does not require such awareness. (evidence inadmissable by majority rule)
State v. Williams: baby tooth-ache case- turned into gangrene-pneumonia-death: parents of a
child who died of an infection they failed to treat were charged with manslaughter based on their
negligence. In Washington, manslaughter is any homicide committed with simple (as opposed to
gross) negligence. Furthermore, homicide is excusable if it is committed accidentally while doing
any lawful act by lawful means, with ordinary caution. The standard of negligence that had to be
proven in this case was civil negligence, or in other words, tort-level negligence, not gross
negligence.
Doctor w/appropriate consent: performs extremely risky surgery to save the life of a
patient: not a reckless act
Felony Murder Rule: a killing, even accidental, committed during the course of a felony
constitutes murder. Malice is assumed by law from the intent of the underlying felony
CL: only certain felonies included: murder, rape, sodomy, mayhem, robber, larceny, arson,
burglary, and all else was a misdemeanor; must be guilty of underlying felony;
underlying felony must be independent from the killing element (i.e. no felony-murder for
manslaughter)
Majority: foreseeable result of the commission of the felony
Inherently Dangerous: (1) Does the primary element of the offense necessarily involve
danger to human life? (2) Do the factors elevating the offense to a felony render that
offense dangerous to human life? There are two alternative inherently dangerous
 standards: a felony is considered inherently dangerous if (1) it is dangerous in the
abstract or (2) it is dangerous based on the facts of the case.
People v. Fuller: Under California law, all murder that is committed while committing another
felony is considered first degree murder. ; death caused during a high speed car chase: felony-
muder does not apply in this case b/c robbing a car not inherently dangerous
People v. Howard: high speed chase after police asked guy to pull over; drove w/o lights during
the chase and into down-town at high speeds and ended up killing a woman; had stolen the
vehicle earlier in the day; charged and convicted with murder and evading a police officer;
Supreme Ct of California held not an inherently dangerous crime and thus felony murder not
applicable
Once felon has reached a place of temporary safety and then commits murder: not felony-
murder
liability for murder cannot be based upon the death of an accomplice from resistance by
victim or police pursuit
State v. Sophophone: felony-murder conviction for death of co-felon by the lawful act of a police
officer. Held not responsible for the death b/c he had already been captured when his co-felon
ran and got shot in-so-doing
killing of an innocent party by victim or police :
o Agency Theory: not guilty unless caused by or agent of the
o Proximate Cause: can be liable b/c the death is a direct consequence of the
felony
Capital Punishment and Death Sentence:
Gregg v. Georgia: convicted of armed robbery and murder; Is the imposition of the death
sentence prohibited under the Eighth and Fourteenth Amendments as "cruel and unusual"
punishment? NO
Excessiveness is determined by unecessary and wanton infliction or pain AND punishment must
not be grossly out of proportion to the severity of the crime
Constitutionality: Under Furman it is ruled constitutional to have the death penalty; Under
Woodson- mandatory death penalty is unconstitutional
Aggravating circumstances judges AND jury can determine:
Whereas jury has unlimited power to determine mitigating circumstances
Mentally retarded cannot be executes= cruel and unusual punishment
Racial Discrimination Issues: McKleskey v. Kemp: McCleskey, a black man, was convicted of
murdering a police officer in Georgia and sentenced to death. In a writ of habeas corpus,
McCleskey argued that a statistical study proved that the imposition of the death penalty in
Georgia depended to some extent on the race of the victim and the accused. Held: statistical
data did not prove anything, so conviction constitutional under equal protection clause
Rape: unlawful carnal knowledge of a woman by a man, not her husband, w/o her effective
consent
Marital Relationship: under CL and MPC woman must not have been married to the man who
committed the act for there to be rape Most states have dropped this requirement for couples
who are estranged/separated or abolished it completely
The general intent of rape is the intent to have intercourse--the mens rea is the carnal part
and not so much the against will part which is more something that needs to be proven
Can make it specific intent by constructing the mens rea for rape as an intent to get carnal
knowledge and the intent to do it against their will; then would just have to prove that did
not know it was against the will
Rape as a General Intent Crime= was there an intent to have sex with someone and it
turned out that it was against her will? They have to show that there was a good faith
belief and that this belief is a reasonable one to have
Rape as a Specific Intent Crime= was there an intent to have sex with someone against
her will? Much harder to prove; all they have to show is that there was a good faith belief
that the sex was consensual
Force/Resistance:
 Utmost resistance requirement- no one could be prosecuted for rape unless it could be
proved that the victim provided the max level of physical resistance from the moment that
the assault started; used the only way to prove force; Verbal resistance is resistance
State v. Alston: ex-boyfriend stalks victim and walks with and eventually has sex with her-she
claims rape. If an act of sexual intercourse is by both force and against the victims will, it
constitutes rape even if the victim gave consent to the for previous acts of sexual
intercourse. The court finds there is sufficient evidence that the sex was against the victims will,
but it finds insufficient evidence that the sex was forced. The court finds that there were acts of
force and threats of force, but the court considers them unrelated to the act of sexual
intercourse. The court seems to suggest that it is necessary for the victim to resist the act of
sexual intercourse in order for it to be rape.
Commonwealth v. Berkowitz: college girl goes up to the room and chats up an aquaintance; he
proceeds to have sex with her and she starts saying no softly- he takes it as her moaning- he
thought one thing, she called it rape:
Under the rule of Rhodes, the judgment of whether forcible compulsion or the threat of
forcible compulsion occurred is to be judged on the totality of the circumstances.
State of New Jersey in the Interest of M.T.S .: 17 yo boy lived with girl and her family, claimed
flirting between then and goes upstairs to have sex with her in the middle of the night; she
claims she was asleep when he slid into her; he claims they had been making out; force is the
force of sex: [A]ny act of sexual penetration engaged inwithout the affirmative and freely-given
permission of the victimconstitutes the offense of sexual assault. Therefore, physical force in
excess of that inherent in the act of sexual penetration is not required for such penetration to be
unlawful.
Lack of Effective Consent:
intercourse by force: no Q as to lack of consent
intercourse by threats, placing victim in fear of great and immediate harm= rape
o failure to resist to the utmost is still rape if prevented from resistance by threat
inability to consent= unconscious by effect of drugs or intoxicating substances; victims
mental condition(so insane/retarded as to be unable to give consent
consent garnered by fraud is generally not rape
o rape if victim fraudulently caused to believe act is not sexual intercourse(i.e.
medical procedure)
o not rape if victim is persuaded that is husband- b/c still consent
People v. John Z.: 17yo laura goes to see her boyfriend who has his other friend there : both boys
removed her clothes and proceeded to "play with her" and then she and her boyfriend had sex
and later his friend came in and had sex with her; she never told him no and stated at trial she
never said no, but did tell him she needed to go and he kept asking for more time; court held:
rape occurs during consensual intercourse as soon as victim expresses objection and attempst to
stop the act and continues forcibly
Commonwealth v. Sherry: Four doctors carry a woman to a car, take her to a cabin and proceed
to have sex with her. The defense of mistake of fact requires such a mistake to be reasonable
and in good faith.
Statutory Rape: below the age of consent; mistake of fact (as to age) is not a defense b/c there is
no intent in a strict liability crime
Inchoate Offenses: Attempt, Assault, Solicitation, Conspiracy
Attempt: act done w/intent of committing crime but falling short
Elements: 1) specific intent to commit the crime; 2) overt act in furtherance of the crime
Can you have the specific intent to attempt an unintentional homicide. Under common
law the answer is no, under the MPC the answer is yes--as long as you had the mens rea
necessary for the completed crime, you can be charged with an attempt of that crime. So
if you acted recklessly, you can be charged with a attempted reckless homicide (usually
attempted voluntary manslaughter)
McQuirter v. State: followed woman and her children around; later arrested and convicted of
attempt to assault w/intent to rape: Where do you draw the line?
Intent: requires specific intent; cannot attempt a negligent crime(logically impossible); attempt
to commit a strict liability crime requires intent to bring about the proscribed result even though
SL generally have no intent requirement
Overt Act: must commit an act beyond mere preparation
Proximate Step Test: how close came to completing the crime (what steps are left)
Substantial Step Test: substantial step(what steps already taken) in a course of conduct
planned to culminate in the commission of the crime. Will not qualify unless strong
corroboration of the actors criminal purpose.
Res Ipsa Loquitor(speaks for itself: the cinematic w/o sound rule)
MPC Test: like substantial step: takes the facts as the believes them to be
Defenses: legal impossibility is always a defense if the act would not constitute a crime
under any circumstance; factual impossibility is not a defense simply b/c factually
impossible for to commit the crime or so all the things that had been intended. Most
States/MPC hold that had the circumstances been as they thought them to be, would have
committed the crime.
Legal: Impossibility due to the fact that what the defendant intended to do is not illegal
even though the defendant might have believed that he or she was committing a crime. 1.
A legal impossibility might occur, for example, if a person goes hunting while erroneously
believing that it is not hunting season. This type of legal impossibility is a defense to the
crimes of attempt, conspiracy, and solicitation. Also termed impossibility of law; true
legal impossibility. 2. Impossibility due to the fact that an element required for an attempt
has not been satisfied. This type of legal impossibility might occur, for example, if a person
fires an unloaded gun at another when the crime of attempt requires that the gun be
loaded. This is a defense to the crime of attempt.
Factual: Impossibility due to the fact that the illegal act cannot physically be accomplished
due to a circumstance unknown to her; such as trying to pick an empty pocket. Factual
impossibility is not a defense to the crime of attempt.
People v. Gentry: bf poured gasoline over gf and it caught fire when she went near the stove; he
tried to snuff it out; attempt to kill requires a specific intent to kill, which he did not have
Bruce v. State: is there Attempted Felony Murder? Guy tries to rob a guy with a gun and store
owner bumped the and gets shot in the stomach. No, b/c felony murder has no intent and
attempt requires that there be a specific intent
People v. Thousand: Guy who chats with a "minor girl" over the internet and has explicit
conversations and images of genitalia. Dismissed because it was an impossibility as Bekka was
an old cop. Supreme Ct. overturned saying that may was charged w/attempt for which
impossibility was not a defense. Dissent states that under CL, impossibility was a defense and
interprets the states statute to allow it as well. MPC states, facts as he believed them to
be=illegal
Abandonment: MPC: withdrawal is a defense but only if: it is fully voluntary and
abandonment is complete (not postponing the crime for later), renunciating the criminal purpose
Commonwealth v. McCloskey: attempted prison breach, cut the wire and had filled a laundry bag,
ready to go. Despite steps taken, he was still in the prison yard when he changed his mind and
went back to doing his laundry work.
Assault:
Battery- willful application of force which is offensive(lack of consent) and unlawful--no
intent to be offensive is required
Assault- at common law was attempted battery: harm not necessary, simply an intent:
focuses in on fear and ability(objective) to follow through
State v. Boutin: bottle is not really a long range weapon and thus perhaps not a huge
threat(ability not very high); Lets say he has a gun but it is unloaded but he believes it is: under
common law: ability does not exist(objectively doesnt have bullets) though the intent exists; but
it is attempted murder at common law. Under MPC facts as you believe them to be so it is
an assault and attempted murder: assault would be the lesser included offense.
Solicitation:
 Elements: asking/inticing/advising/inducing/urging/commanding another to commit a
felony with the specific intent that the person solicited complete the crime. Completed at
time solicitation is made.
Defenses:
Factual impossibility is not a defense, culpability measured by the circumstance as she
believed them to be.
withdrawal/renunciation not a defense b/c crime complete upon asking
Exemption from intended crime is a defense: protected class by the law
Conspiracy: agreement between two or more persons to accomplish some criminal or unlawful
purpose or to accomplish some lawful purpose by unlawful means. Complete upon agreement
(offer and acceptance)
does not merge w/completed crime pursuant to the conspiracy[solicitation does merge
into this]
each conspirator may be liable for acts of the other so long as:
o crimes were committed in furtherance of the objective of the conspiracy
o crimes were a natural and probable consequence of the
conspiracy(foreseeable)
CL: conspiracy is an earlier crime(at agreement rather than substantial step) b/c secret
activity is potentially more dangerous to society and is more difficult for one person to
stop it once an agreement has been made
Pinkerton v. United States: brothers indicted for violations of Internal Revenue Code; Idea of
continuous conspiracy- doesnt need to be directly involved in the acts furthering the conspiracy;
simple a partner in the conspiracy to be convicted of all crimes committed by others in
furtherance of the conspiracy
Elements: agreement; intent to enter into agreement; intent to achieve objective of
conspiracy
agreement: must agree to the same objective by mutual action; need not be express; can
be shown by concert of action by parties of conspirators over a period of time under
circumstances showing they were aware of purpose and existence of the conspiracy
o initial agreement to engage in multiple crimes= one conspiracy
o Chain Conspiracy= series of agreements part of a single large scheme where all
parties of sub-agreements(links) are interested in the goal= one large conspiracy
o Hub and Spoke: one common member enters into many subagreements(spokes)
that are similar with different people that are reasonably independent of each
other. =multiple conspiracies
If members know of one another, then they have conspired together and
are liable for each/others crimes.
o two or more parties:
CL: requires meeting of the mindstwo guilty minds for there to be a
conspiracy to commit a crime
MPC: required only one guilty mind(unilateral approach) must simply
agree, other person need not have a criminal intent; need more than one
crime(act) to be a conspiracy
o Protected class: person w/in that class cannot conspire to commit the act(i.e. 14
yr old for statutory rape)
Mental State- Specific Intent: need an intent to agree and intent to reach objective (each
has to intend it under CL meeting of the minds)
o Intent to facilitate a conspiracy: mere knowledge not enough to be considered a
part of the conspiracy unless person has a stake in the venture(acquiring rare
item for them; selling item at higher than normal price, etc); thus may become a
member of the conspiracy
o no conspiracy to commit a strict liability crime b/c conspiracy requires an that
there be an intent and SL has none, simply illegal[cant you simply conspire to
commit an illegal act?)
People v. Swain: conspiracy is a specific intent crime; implied malice in this case does not require
an intent to kill; thus cannot conspire to commit it
People v. Lauria: telephone message service believed to be center of prostitution ring; knew
some of his customers were prostitutes byt only had knowledge of the illegal use of the service
and did not have nay intent to further than use; thus not conspirator
Commonwealth v. Cook: two bothers chatted up girl and went down path w/her; she fell and one
raped her while the other did nothing to stop it. Not conspiracy b/c no evidence of prior
agreement; could be accomplice though
Overt Act: some states require that it be in furtherance of the conspiracy; for others mere
preparation is enough; traditionally, complete on agreement
Termination of a Conspiracy:
Defenses:
o factual impossibility not a defense
o Withdrawal:
CL: not a defense b/c conspiracy complete upon agreement
MPC: voluntary withdrawal is a defense id thwarts the success of the
conspiracy(by telling police or something)
Defense to Subsequent Crimes:
o Withdrawal: must perform an affirmative act that notifies all members of the
conspiracy and must be given in time for them to abandon their plans (note: if
provided material assistance, must attempt to neutralize the assistance; would
still be an accomplice otherwise)
People v. Sconce: Formed conspiracy w/friend to kill a woman; hired a convict to do so but
changed mind and told convict not to do it. But, conspiracy complete upon agreement unless
rejection/repudiation of conspiracy to all members; here he only told the convict and not his
friend.
Accomplice Liability:
Modern Law: all parties to the crime can be found guilty of the criminal offense
principal: one who actually engages in the act/omission w/requisite mental state [anyone
who acts through an innocent/irresponsible/unwilling agent is the principal
accomplice= aids, counsels, encourages
accessory after the fact(ML= harboring a fugitive, aiding escape, or obstructing justice):
receives, relieves, comforts, or assists another knowing he has committed a felony, in
order to help felon escapes arrest, conviction, trial (felony must have already been
completed)
Mental State:
CL: must have given aid, encouragement, counsel w/ the intent to aid, encourage, counsel
the principal in the commission of the crime
Most Courts: mere knowledge w/o a stake in the venture is insufficient for intent to
aid(stake= getting an illegal item for them, charging more for an item they need)
Scope of Liability: just b/c not principal doesnt mean not an accomplice
Exclusions/Exceptions:
protected class
Withdrawal: must be complete before any in chain of events leading to commission of
crime are committed
o if encouraged, need to repudiate encouragement
o if assisted by producing some material to principal at least must attempt to
neutralize the assistance( taking material back)
o or can report to the authorities/take action to prevent the commission of the
crime
State v. Hoselton: lookout kid at the barge while he friends stole; did not know they had intended
to. State must show that he had criminal intent to steal, but here evidence showed he was not
really acting as lookout and thus no implied intent to steal not an accomplice
Rile v. State: two men opened fire in unsuspecting crowd but unable to determine whose gun
actually hurt people. Still an accomplice b/c had intent to promote/facilitate another persons
conduct
State v. Linscott: and another went w/sawed off shot gun to go rob a concaine dealer they
knew; plans changed and other guy broke the window and fatally shot the dealer. Court
established that death was foreseeable from plans to rob but that had known death would
result, he would not have participates in robbery. However, foreseeable consequence of robbery,
not violation of due process as not fundamentally unfair.
Natural/Probable Consequence: Did primary party commit offense or inchoate version? If
yes, was secondary person an accomplice in commission of offense? If yes, did primary
party commit any crime beyond target offense? If so, reasonably foreseeable consequence
of original criminal acts encouraged/facilitated by aider/abettor?
State v. Vaillancourt: appealed guilty verdict for attempted burglary via accomplice liability by
accompanying to location and watching. Appealed and won from a conviction of attempted
robbery via accomplice liability. Court requires more that knowledge or mere presence at scene
of crime is not enough to convict. Accompaniment and observation = "mere presence". Dissent
alleges that mere presence is not enough but that in this case, there exists the requisite mens
rea and that the term accompaniment implies moral support and encouragement and thus can
be construed as aiding in the crime.
State v. Helmenstein: (banana case): contended that he was asleep through the whole even and
thus not an accomplice but he helped to think up cover-up stories and thus accomplice
People v.Genoa: police and Genoa agreed to purchase cocaine but police never intended to
complete the crime. Underlying crime was never committed, thus cannot be held as an
accomplice to it. A legal impossibility.
United States v. Lopez: bf gets helicopter to held gf escape from prison as she claimed her life
was being unlawfully threatened by the prison authorities: result depends on is necessity/duress
was excuse of justified as one can be extended to bf and other cannot.
People v. McCoy: can aider/abettor be guilty of offense greater than what the actual perp did?
Sometimes yes, b/c of characteristics unique to actual perp that dont apply/excuse the
accomplice.
People v. Brown: attempted burglary, claims to have abandoned but court felt had taken a
substantial step by kicking door to the building and thus too late to withdraw
General Defenses:
Failure of Proof: not all elements proven
Offense Modification: satisfied all element but did not create harm/evil sought to be
prevented by statute
Justification: condoned by society; extends to others because the act is not illegal
Excuse: not condoned by society; does not extend to others b/c the act itself was illegal,
but something about excuses the crime
Non-Excupatory Public Policy: to make society rule smoother; like statutes of limitation or
certain immunities
Patterson v. NY: NY statute w/affirmative defense of extreme emotional distress requiring
defense to have BIP was held to be constitutional b/c did not require to disprove any
enumerated element of the crime(but malice was an implied one as dissent points out)
Self-Defense: (Justified)
Non-Deadly Force: can use such force as reasonably appears necessary to protect oneself
from the imminent use of unlawful force; not duty to retreat
Deadly Force: may use if:
1) is without fault; if not person who was the aggressor
2) is confronted w/unlawful force; unlawful force constitutes a crime or tort
3) threatened w/imminent death or great bodily harm; must reasonably believe that
faced w/said threat if does not prevent it w/deadly force. Danger must be a present
one(not sometime in the future)
Retreat:
Majority: no duty to retreat
 Minority: retreat only if can be made in complete safety
Not necessary if: attack in victims home; attack occurs while victim is making a lawful
arrest; assailant in process of robbing the victim
Right of the Aggressor to use self-defense: if withdraws(effectively removes himself from
fight and communicates to other person intent to remove himself, regains right to self-
defence) or if sudden escalation(victim of initial aggressor escalates a minor fight to one
w/deadly force)
United States v. Peterson: windshield wipers case whereby victim came by s house to take
wipers off broke-down car. protests, went back to his house got a gun, while Keitt had gone
back to car and was about to leave. He came to yard and told Keitt that he would shoot, Keitt got
a lug wrench in return and walked toward , at ten feet: shot him, killing him. Peterson was
aggressor so lost right to self-defense. Castle doctrine, thus does not apply.
People v. Goetz: based on prior experiences, believed that when youth asked him for money, that
the youths intenede to rob him. They asked, he shot all of them and even shot upon seeing one
still alive with unregistered gun. Had intended to murder all of them but still eventually acquitted
on the basis that his belief was reasonable based on his past experiences
State v. Norman:(BWS: learned helplessness) left house. got gun, returned, loaded the gun,
and shot husband twice in the head while he was sleeping. Had long history of verbal/physical
abuse and often threatened to kill her. Court decided that characteristics of BWS, jury could find
that sleep was a brief hiatus in reign of terror. At new trial found that the threat was not believed
to be imminent by and thus acquittal on self-defense reverse. Eventually convicted of
voluntary manslaughter.
Defense of Others:
Relationship:
majority: no relationship required
minority: person aided must be member of s family, or servant/employer of
Status of Person Aided:
majority: so long there is a reasonable appearance for the right to use force
minority: step into shoes, if person aided doesnt have the right, does not have the right
People v. Kurr: argues on appeal that she killed her bf in defense of her unborn children; was
held as appropriate defense and thus reversed and remanded for new trial.
Defense of Property:
Dwelling:
Non-Deadly Force: to extent that person reasonably believes that such conduct is
necessary to prevent or terminate anothers unlawful entry/attack upon the dwelling
Deadly Force: generally okay in two situations:
o tumultuous(riotous/violent) entry and person reasonably believed that use of
force is necessary to prevent a personal attack upon him or another within the
dwelling
o felony- person reasonably believes someone is entering w/intent to commit a
felony in the dwelling
Other Property:
Non-Deadly Force: from unlawful interference of property in ones possession but not if
request to desist would be enough to stop perpetrator; need for force must appear
reasonably imminent; cannot be used to regain property that had been unlawfully taken
Deadly Force: never justified if it is just property; only if in conjunction w/another
privileged use of force(self-defense, defense of others, defense of dwelling, etc.)
People v. Ceballos: trap gun mounted in garage in protection of his property; actually lived above
the garage and the garage was not considered to be a part of his dwelling. Issue of
proportionality; burglary is not always a forcible and atrocious crime and thus deadly force not
appropriate. Difference between stopping an entrance and stopping them after they have
entered--argument is that better able to assess the level of threat after they have already
entered.
Necessity/Choice of Evils: criminal conduct is justifiable if, as a result of pressure from natural
forces, reasonably believed that conduct was necessary to avoid some harm to society that
would exceed harm caused by the conduct. Objective determination; cannot be based on a good-
faith belief that conduct is necessary
not available if the is at fault for creating the situation that required the choice between
evils
Nelson v. State: truck was stuck in muck and afraid of damage to his roof; took equipment to
remove his truck w/o permission and damaged it; argued that test for necessity should be
subjective; its not- totally objective, was the danger of damage to his car somehow greater than
the damage he did to the equipmentneeded for society: no to both
Duress: excuse: not guilty of offense, other than homicide, if performs otherwise criminal conduct
under threat of imminent infliction of death or great bodily harm, provided it is a reasonable
belief that such harm/death will be inflicted on himself, family, and sometimes to some third
person: an immediate threat of death or serious bodily injury, a well-grounded fear that the
threat will be carried out, no reasonable opportunity to escape
Queen v. Dudley and Stephens: duress/necessity not defenses to murder
Contento-Pachon: swallowed balloons of concaine to bring to US upon threat to his life and the
lived of his family. Considered sufficient to present duress which may excuse him from crime of
unlawful possession w/intent to distribute
State v. Unger: on an honor farm, escaped under threat of sodomy by fellow inmates; more of
case of necessity

Other Defenses: mistake of fact, mistake of law; consent

Consent: generally not a defense unless it goes toward an element of the crime(consented
to have sex not rape; consented to take a ride not kidnapping)
Intoxication: excuse
Voluntary: self-induced via intentional taking, w/o duress, of substance known to cause
intoxication; dont need to intend to get intoxicated, simply intend to take it
Specific Intent Crime: may be evidence that intoxication prevented formation of the
requisite intent, when charged with crime that requires purpose(intent) or knowledge
(cant purposely get drunk as an excuse)
Not a defense for Malice/Recklessness/negligence or strict liability crimes
Can lower 1st degree(premeditated) murder to 2nd degree murder but not reduce 2nd
degree to manslaughter [Rationale: all murders are 2 nd degree unless prosecution can
prove deliberate and premeditation reckless/depraved heart murders]
Involuntary: results from taking a substance that is intoxicating 1) w/o knowledge of its
nature, 2) under direct duress imposed by another, 3) pursuant to medical advice while
unaware of intoxicating effect
Commonwealth v. Graves: robbery, burglary leads to murder: intoxication is not used as excuse
or exoneration, simply removes the ability to meet the intent requirement which is an element of
the crime. Thus, the prosecution is unable to prove an element of the case. Failure of proof.
Insanity: excuse
MNaghten Rule: entitled to acquittal if proof established
Elements: 1) disease of the mind 2)caused a defect of reason 3) such that lacked the
ability at the time of his action to either:
o know the wrongfulness of his actions, or
o understand the nature and quality of his actions
Application: false beliefs- need to ask if acts would have been criminal if the facts were as
he believed them to be; belief that acts are morally right is not defense unless person lost
capacity to recognize that the act is regarded as wrong by society; loss of control is not a
defense
Irresistable Impulse Test: acquitted if proof established that his crime was the product
of mental disease or defect; it is a product if it would not have been committed but-for
the mental disease/defect
Product Test(Durham): issue of experts taking over the role of the jury as factfinder--> the
expert basically stated that the mental illness made something possible or impossible
 MPC: proof shows that he suffered from a mental disease/defect and as a result lacked
substantial capacity to either: 1) appreciate the criminality(wrongfulness) of his conduct;
OR 2)conform his conduct to the requirement of law
Burden of Proof: MPC and some courts(prosecution must prove not insane beyond a
reasonable doubt; some(defense must prove insanity by preponderance of the evidence);
Fed( must prove insanity by clear and convincing
Post-Acquittal: committed until cured either automatically or by jury determination;
confinement beyond that of accused crime is not violation of due process
Mental Conditon during Criminal Proceedings: Incompetency to Stand Trial: due process
grants that a cannot be tried, convicted, sentenced if, as a result of mental
disease/defect, he is unable to 1) understand the nature of the proceedings against him;
2) assist his lawyer in preparation of his defense
cannot be declared incompetent w/o hearing or notice
criminal proceedings suspended until regains competence
cannot be executed if unable to understand nature and purpose of punishment(some
states called by warden or jury)
Diminished Capacity: may assert, as a result of mental defect, short of insanity, did not have
the requisite mental state required for the crime charged most states only allow for specific
intent crimes

Theft:
Larceny:
Elements: 1) Takes possession 2) of the personal property 3) owned/possessed by another
4) by means of trespass 5) w/intent to steal 6) asportation
False Pretenses:
Elements: 1)false representation 2) in order to defraud 3) Reliance on that false
representation

Larceny by Trick:
Elements: