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People v. Suitte (New York State Supreme Court, Appellate Division, 1982)
“Sentencing involves consideration of the crimes charged, the particular circumstances of
the offender, and the purposes of a penal sanction.”
4 objective principles of punishment:
o Deterrence:
Individual Deterrence – directed at preventing the specific offender from
repeating the same or other criminal acts
General Deterrence – aims to discourage the general public from recourse
to crime
o Rehabilitation – directed at reform of the individual
o Retribution – includes “the reaffirmation of societal norms for the purpose of
maintaining respect for the norms themselves,” community condemnation, and
the community’s emotional desire to punish the offender
o Isolation – serves to segregate the offender from society so as to prevent criminal
conduct occurring during the period of incarceration.
When the issue is sentencing discretion, the standard of whether a sentence is bad is
whether there was an abuse of discretion, BUT
o Appellate court can use its discretionary review to dispense justice when it deems
it necessary
Mandatory minimums take away judicial sentencing discretion
Standards of Review
Directed Verdict (during trial)
o For sure have to move for a directed verdict after the prosecution’s case-in-chief,
but can also renew after defense’s case-in-chief
o Preserving error for appeals
Proof Beyond a Reasonable Doubt (trial)
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Statutory Interpretation
Judges play an important role in deciding what a particular statute means and how it
should apply to particular cases body of informal rules to help them interpret statutes
o Although judges are supposed to only apply the law and not make it, when
statutory language is broad, ambiguous, or outdated, the line between applying
and making law can become exceedingly fine.
1. Plain Meaning – always the court’s starting point. If Congress provides no specific
definitions, then the court considers the ordinary, common-sense meaning of the words.
a. “The meaning of statutory language, plain or not, depends on context.”
2. Canons of Construction
a. Lists and Other Associated Terms
i. Noscitur a sociis: the meaning of doubtful terms or phrases may be
determined by reference to relationship w/ other associated words/phrases.
ii. Ejusdem generis: where general words follow a specific enumeration of
persons or things, the general words should be limited to persons or things
similar to those specifically enumerated.
b. Statutory Structure – a statute is to be considered in all its parts when construing
any one of them.
c. Statutory Amendment – a statute should be construed to be consistent with
subsequent statutory amendments. Used to help explain the legislature’s intention.
d. Avoiding Absurdity – statute should be interpreted to avoid absurd results.
3. Legislative History – when the plain language and canons of statutory interpretation fail
to resolve statutory ambiguity, we will resort to legislative history
4. Rule of Lenity – all doubts when reading a criminal statute should be resolved in favor of
the D, recognition of important liberty interests at stake and presumption of innocence
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1. Actus Reus
Umbrella term that ties together several loosely related doctrines/concepts
o Notion that a person should not be convicted solely on the basis of their thoughts,
but also must have done something that caused some sort of social harm (act +
culpable mind-set)
o The defendant’s act must have been voluntary
o General rule that there can be no criminal liability for an omission unless the
person who failed to act had a legal duty to act
o Notion that “status crimes” are unconstitutional; people should only be criminally
punished for their conduct, not for being a certain kind of person.
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People v. Beardsley
(Supreme Court of Michigan 1907)
Case of mistress overdosing and dude not saving her
No duty to rescue – “duty neglected must be a legal duty; not a mere moral obligation”
o “It is not correct to say that every moral obligation is a legal duty; but every legal
duty is founded upon a moral obligation.”
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Knowledge
Under common law, a person knows of a fact if he either is aware of that fact or correctly
believes the fact exists.
o Many jurisdictions recognize another way of proving knowledge: willful
blindness or deliberate ignorance
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Causation
Part of the actus reus requirement – links actions with the social harm
o (1) voluntary act that (2) causes (3) the social harm
o Must be a close causal connection, unlike the tort causal requirements
Two types must be proven to establish criminal liability
o (1) Defendant’s conduct must be an actual or but-for cause of the social harm
o (2) Defendant’s conduct must be the proximate or legal cause of the social harm
2. Proximate Causation
Whether it is fair and just to hold D criminally liable when D’s conduct is the direct
cause of the social harm (no intervening causes)
o When intervening causes are present, courts apply intervening cause analysis to
decide whether to hold D criminally liable
o Intervening causes = acts or events that come after D’s act, but before the social
harm, which also contribute causally to the social harm
Intervening cause analysis:
o Dependent (responsive) intervening cause – intervening cause dependent upon or
responsive to D’s voluntary act D is the proximate cause unless the intervening
cause is extremely unusual or bizarre
o Independent (coincidental) intervening cause – intervening cause independent of
or coincidental to D’s voluntary act D is generally not found to be proximate
cause and relieved of criminal liability, unless the intervening cause is foreseeable
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Issue: Is there a close enough causal link between D’s actions in assaulting Ms. Berry
and the car accident which caused her death to convict him for murder?
o Yes, D’s conduct was the legal cause of Ms. Berry’s death.
Causation must be direct and substantial
If the victim’s death is attributable entirely to other factors and not at all brought about by
the defendant’s conduct, no causal connection exists and no criminal liability for the
result can attach.
o The D’s conduct need not be the sole cause of the victim’s death in order to
establish causal connection, as long as D’s conduct was a direct and substantial
factor in producing the death, even though other factors combined with that
conduct to achieve the result
o If the fatal result was an unnatural or obscure consequence of the D’s actions,
sense of justice would prevent allowing the result to impact the D’s guilt
o Foreseeability
The “but-for” element alone will not necessarily determine criminal culpability
The risk that Ms. Berry might suffer serious injury or death either during the assault or in
her attempt to avoid it, was inherent in the situation D’s attack created
o The fatal result of D’s assault is not rendered unforeseeable merely b/c the precise
agency of death, i.e. the Michielli’s station wagon, could not have been foretold.
Definitions
Life – defined either as “born alive,” or, under Roe v. Wade and Planned Parenthood of
Southeastern Pennsylvania v. Casey, the “viability” of the fetus in being able to survive
outside the womb.
Death – includes brain death, along with respiratory and circulatory death
Malice aforethought – term of art for mens rea
o Intent to kill may be inferred from:
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Circumstantial evidence
“Deadly weapon rule” – permits jury to infer intent to kill when the D has
used a deadly weapon aimed at a vital part of the human body
“Natural and probable consequences” doctrine
Categories:
Murder 1 – aggravated form of intentional killing. Common law requires proof either:
o (1) the murder involved “premeditation and deliberation”
Premeditation – reflected on and thought about the killing in advance
(even in an instant)
Deliberation – quality of thought process (undertaken with a cool head)
o (2) the murder was committed using a means specified in the first-degree murder
statute, such as lying in wait, poison, or torture
o (3) the murder occurred during the commission or attempted commission or
attempted commission of an enumerated felony (namely rape, robbery,
kidnapping, burglary, or arson) – Felony Murder Rule
o Death Penalty – M1 + Aggravating Factors
o BASICALLY M2 + Premeditation and Deliberation
Murder 2 – default for intentional killing
MPC §210.1 criminal homicide = the purposeful, knowing, reckless, or negligent death
of another human being
o Murder either purposely or knowingly, or when it is committed recklessly “under
circumstances manifesting extreme indifference to value of human life.” (§210.2)
o MPC does not recognize degrees of murder
Voluntary Manslaughter – an intentional killing that would normally qualify as M2, but
is reduced b/c of a partial defense of either:
o Provocation (heat of passion)
o Imperfect self-defense
o Diminished capacity (D’s ability to form intent is not perfect)
o MPC §210.3 manslaughter = criminal homicide when it is committed recklessly
(but w/out circumstances manifesting extreme indifference to the value of human
life), and when a homicide that would otherwise be murder “is committed under
the influence of extreme mental or emotional disturbance for which there is
reasonable explanation or excuse.”
Involuntary Manslaughter – criminal negligence (sometimes gross negligence,
sometimes recklessness, depending on jurisdiction)
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o Whether a jury will agree that there was such a disturbance or that the explanation
for it was reasonable we cannot say. D was entitled to an instruction on every
theory of defense shown by the evidence. It’s the jury’s province to determine the
weight and credibility of that evidence.
Involuntary Manslaughter
Two ways a prosecutor can secure an involuntary manslaughter conviction:
1. Prove that defendant had the requisite mens rea for involuntary manslaughter
a. Criminal negligence – in most jurisdictions, something more than ordinary civil
negligence is required:
i. Gross Negligence – doesn’t require defendant to be aware of a substantial
and unjustifiable risk and thus disregards it
ii. Recklessness – requires defendant to be aware of a substantial and
unjustifiable risk and defendant then chooses to disregard it
iii. Some only require simple negligence
b. Application of the Misdemeanor Manslaughter Rule
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Merger: Heemstra
If the cause of death is the same as the felony (like an assault), then they merge and thus
felony murder isn’t possible
Chapter 8 – Sexual Offenses
1. Forcible Rape
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The law is reconceptualizing forcible rape from a crime against a woman’s honor to a
crime against a person’s sexual autonomy states have gone different ways
o MPC – a unified body of sexual assault law with many different gradations
California MPC is very different most crimes can be categorized as
either common law or MPC, but forcible rape law is much more varied
Element of Force or Threat of Force
o In many forcible rape cases, the critical question is whether the defendant used
force or threat of force to accomplish the sexual intercourse
o Most (though not all) jurisdictions have eliminated the resistance requirement
However, evidence of resistance plays an important role in establishing
the elements of force and non-consent
State of New Jersey in the Interest of M.T.S. (Supreme Court of New Jersey 1992)
Issue: is the element of “physical force” met by the act of non-consensual penetration?
Held: Yes, any act of sexual penetration engaged in by D w/out affirmative and freely-
given permission of the victim to the specific act constitutes offense of sexual assault.
o Non-consent replaces physical resistance
Prosecution has to prove, beyond a reasonable doubt that a reasonable person would not
have believed that there was affirmative and freely given permission
o Moves burden from victim’s state of mind to D’s state of mind
M.T.S. flatly rejects any shift of focus, plainly holding that the focus is on the D’s use of
force and on the reasonableness of the D’s alleged belief that the victim has given
permission . . . not on the victim’s subjective state of mind
Supreme Court of New Jersey does not formally eliminate the force requirement, but
accomplishes almost the same result by suggesting that the requirement is satisfied
simply by the act of sexual penetration without the permission of the victim.
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2. Embezzlement – (1) Intentional conversion of (2) property of another (3) by someone who is
already in lawful possession
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4. Consolidated Theft Statutes – combine larceny (+ by theft), embezzlement, & false pretenses
1. Burglary
Old and New Elements
(1) Breaking and entering
(2) [of a dwelling house]
(3) [at night]
(4) with the intent to commit [a felony] therein.
2. Robbery
THEFT + (force/fear + immediate presence)
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The victim’s presence after the taking is in progress is sufficient to establish the
immediate presence element of a robbery charge
Estes court: as the use of force or fear only in carrying the stolen property away was
sufficient to support a robbery charge, the victim’s immediate presence during the
asportation of the property was likewise sufficient.
o Robberies in where victim only comes upon the D after the defendant has gained
possession of the stolen property are commonly referred to as “Estes robberies.”
Defenses
1. Case-in-chief
a. Attack elements
b. Prosecutor’s burden
2. Affirmative
a. Admits elements are met
b. Acquit for another reason
c. Justification
i. Self-D
ii. Imperfect Self-D
iii. Defense of Others
iv. Defense of Habitation
v. Defense of Property
d. Excuse
Case-in-Chief Defenses (AKA Failure of Proof Defenses or Prima Facie Case Defenses)
Defendant attacks prosecution’s case-in-chief by arguing that the prosecution has failed
to meet its burden of proof on at least one essential element of the crime
o (i.e. the mens rea, the actus reus, causation, or concurrence)
o All the defense has to do is raise a reasonable doubt as to the existence of one
element to secure an acquittal
Unconsciousness and mistakes of fact are examples of case-in-chief defenses
Affirmative Defenses
Defense in which D admits that the government has met its burden of proof regarding its
case-in-chief, but argues that he or she should be acquitted for some other reason
o The legislature can assign the burden of proving or disproving an affirmative
defense to either the prosecution or the defense
Generally, the legislature will make the defendant bear the burden of
proving the requirements of an affirmative defense
Standard of proof necessary for a D to successfully bring an affirmative
defense can vary from defense to defense and jurisdiction to jurisdiction
Typically; however, the defendant must prove the elements of the
affirmative defense by a preponderance of the evidence
Traditionally characterized as either justification defenses or excuse defenses
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1. Self-Defense – a D claiming self-defense must have had an honest and reasonable belief that:
a. (1) Imminence requirement – D was threatened w/ imminent threat of unlawful force,
b. (2) Necessity requirement –force they used was necessary to repel the threat, and
c. (3) Proportionality requirement –force used was proportionate to the threatened force
d. D also must not have been the initial aggressor, but if they are and they withdraw
from conflict (others know they withdrew as well), then the initial aggressor can act
in self-defense If you don’t withdraw, might still have imperfect self-defense
e. D can be acquitted as long as they reasonably believed in the need to act in self-
defense, even if the belief was mistaken
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It was the State’s burden to overcome Mr. Jenkins’s self-defense affirmative defense and
prove beyond a reasonable doubt that Mr. Jenkins was not acting in lawful self-defense
2. Imperfect Self-Defense
a. Honest BUT NOT reasonable belief that D was
i. (1) Threatened with imminent, unlawful force
ii. (2) Force D used was necessary to repel threat
iii. (3) The force used was proportional to the threat
b. Can reduce a murder to voluntary manslaughter
3. Defense of Others – when a person uses force against another person to defend a third
person he thinks is in imminent danger of unlawful attack
a. Honest and reasonable belief that:
i. (1) Threatened with imminent, unlawful force,
ii. (2) force D used was necessary to repel the threat,
iii. (3) the force D used was proportional to the threat
b. Includes an imminence requirement, a necessity requirement, and a proportionality
requirement (deadly force may only be used to protect the third party from death or
grievous bodily injury).
c. Defense of others requires that defendant honestly and reasonably believe the force he
used was necessary to protect the third person from an imminent unlawful attack
d. Prior common law (NOT CURRENT RULE):
i. Act-at-Peril Rule – permits use of force in defense of a third person only if
that person could legally use force in self-defense. In other words, D who
came to third person’s rescue did so at his peril. If it turned out that third
person had no right to use self-defense force, then D would have no defense.
4. Defense of Habitation
a. Deadly force is not permissible simply in defense of property
b. Original common law rule – permitted an occupant of the dwelling to use any
force necessary, including deadly force, if he reasonably believed the force was
necessary to prevent an imminent, unlawful entry
c. Some common law jurisdictions restrict the use of deadly force to cases in which
the occupant reasonably believes such force is necessary to prevent imminent,
unlawful entry, and that the intruder intends to commit a felony or cause injury to
any occupant of the dwelling
d. In other common law jurisdictions, the occupant of a dwelling may use deadly
force against an intruder only if he reasonably believes that such force is
necessary to prevent imminent, unlawful entry, and that the intruder intends to
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commit a forcible felony or kill or cause grievous bodily injury to the occupant or
another occupant of the dwelling
e. Some jurisdictions allow the jury to presume that the homeowner’s belief in the
need to use deadly force to protect against an imminent threat of death or serious
bodily injury was reasonable.
Necessity:
1. Harm D avoiding > harm D causing
2. Seeking to avoid clear/imminent danger
3. Reasonable to think actions would abate other harm
4. No effective legal alternative available
5. Legislature hasn’t precluded what D did
6. D not at fault for creating the danger
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Duress:
1. Immediacy
2. Well-grounded fear
3. Escapability
4. Surrender to authorities
1. Duress (AKA coercion or compulsion) – D claims they were threatened by another person
w/ physical force (either to themselves/third-person), unless they committed a specific crime
a. Basic Elements:
i. (1) D acted in response to an imminent threat of death or serious bodily injury;
1. Most common law jurisdictions allow a threat to kill or seriously
injure the defendant or any other person
ii. (2) D had a well-grounded (or reasonable) fear that the threat would be carried
out unless they committed a specified crime;
iii. (3) D had no reasonable opportunity to escape the threatened harm
iv. Duress can never be a defense to murder, at least where D was the principal
actor, b/c it is wrong to kill an innocent person
b. Key difference between necessity and duress is that conduct under duress is a
response to a threat from a specific individual to commit the acts that constitute the
crime. Conduct under necessity involves a response to a dire situation
c. Model Penal Code:
i. Excuses criminal conduct coerced by the use of, or threat to use, unlawful
force against the actor’s person or the person of another that a “person of
reasonable firmness in his situation would have been unable to resist.”
ii. Not limited to situations involving threats of death or great bodily harm
iii. No explicit imminence requirement
iv. A duress defense to homicide is possible, even if the victim is an innocent
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o The trier of fact should decide whether one in the D’s position might believe that
some of the Bogota police were paid informants for drug traffickers and that
reporting the matter to the police did not represent a reasonable opportunity
o The opportunity to escape must be reasonable
Necessity: when a person is faced with a choice of two evils and must then decide
whether to commit a crime or an alternative act that constitutes a greater evil
o The coercion must have had its source in the physical forces of nature VS.
o Duress is applicable when the defendant’s acts were coerced by a human force
o Necessity defense is usually invoked when D acted in interest of general welfare
2. Intoxication
a. Voluntary Intoxication – can only assert for crimes of specific intent
i. Common law – whether a D can argue voluntary intoxication as a defense
turns on whether the crime with which the D is charged is considered a
specific intent crime or a general intent crime
ii. General intent crime – D can’t introduce evidence of intoxication
iii. Specific intent crime – D allowed to present evidence of voluntary intox
1. D must show that, because of their intoxicated condition, they did not
have the specific intent required for commission of the crime
iv. Common law courts have become increasingly hostile toward this defense
b. Involuntary Intoxication
i. Examples:
1. Innocent mistake (LSD instead of aspirin)
2. Physical condition makes you very susceptible
3. Unexpected (legal) drug interaction
ii. In some jurisdictions, evidence of involuntary intoxication is admissible to
negate either specific or general intent
iii. In most jurisdictions, involuntary intoxication can be the basis for a temporary
insanity claim (affirmative defense)
1. Some jurisdictions acknowledge this use of involuntary intoxication
evidence, holding that involuntary intoxication is only a defense if it
caused the defendant to become temporarily insane
Chapter 11 – Attempts
Actus reus and mens rea requirements
Defenses:
o (1) Abandonment look at why they abandoned committing the crime
o (2) Defense of impossibility whether it was impossible for the defendant to
actually commit the crime
Actus Reus
No single common law test for determining whether and when a defendant’s acts go
beyond mere preparation and become sufficient for an attempt
Many different tests, most of which focus on how much or how little remains to be done
in order to complete the target offense How much preparation is enough?
Common law – what remains to be done to fully commit the crime?
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o “An act, done w/ intent to commit a crime, & tending, but failing, to effect its
commission.”
MPC focuses on what D has done, rather than on what remains to be done, and whether
D’s acts/omissions are strongly corroborative of the defendant’s criminal purpose
o Requires a “substantial step” towards culmination of commission of the offense
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One day, D drilled two groups of holes into the floor of the office above the bank’s
mezzanine.
o He stopped drilling before the holes went through the floor and did nothing more
to continue the burglary
o D basically said that he changed his mind
Landlord called the police, turned over D’s tools, and he was arrested
Issue: Whether D’s conduct went beyond “mere preparation” to commit burglary
Holding: (Stupid) Drilling by D was obviously(?) one of a series of acts which logic and
ordinary experience indicate would result in the proscribed act of burglary
Law/Reasoning: D claims that, as a matter of law, there was insufficient evidence upon
which to convict him of a criminal attempt
o D claims his actions were all preparatory in nature and never reached a stage of
advancement in relation to the substantive crime which he concededly intended to
commit (burglary of the vault) so that criminal responsibility might attach
Prosecution was required to establish that D had the specific intent to commit a burglary
of the bank and that his acts toward that goal went beyond mere preparation
o The required specific intent was clearly established sole issue is whether his
acts went beyond mere preparation
“Any person who attempts to commit any crime, but fails, or is prevented or intercepted
in the perpetration thereof, is punishable . . .”
o The statute does point out by the words, “fails,” “prevented,” and “intercepted,”
those conditions which separate an attempt from the substantive crime
We can say that his “drilling” activity clearly was an unequivocal and direct step toward
the completion of the burglary (?)
o It was a fragment (literally a fragment) of the substantive crime contemplated –
beginning the “breaking” element of breaking and entering
D himself characterized his activity as the actual commencement of his plan (but not the
commencement of the crime?)
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Since the Court decides to follow the MPC de novo, it now affords D the opportunity to
establish by the fair preponderance of the evidence that his departure from the officer’s
neighborhood constituted a voluntary and complete abandonment of his criminal
purposes on the evening in question
Law/Reasoning:
Common Law Overview – Classic elements of a common-law attempt
o (1) intent to commit a crime,
o (2) execution of an overt act in furtherance of the intention, AND
o (3) failure to consummate the crime
Neither the intent to commit a crime nor mere preparation in and of itself constitutes an
attempt
In Vermont, an attempt is defined as an act which “must reach far enough towards the
accomplishment of the desired result to amount to the commencement of the
consummation.”
Justice Wendell Holmes noted that “the act done must come pretty near to accomplishing
that result before the law will notice it.”
o It is a question of degree
MPC –
Not about drawing a line between attempt and noncriminal preparation, but meant to
make the crime essentially one of criminal purpose implemented by an overt act strongly
corroborative of such purpose
Substantial Step: an attempt occurs when one “purposely does or omits to do anything
which is an act or omission constituting a substantial step in a course of conduct planned
to culminate in his commission of a crime
o To constitute a substantial step, the conduct must be “strongly corroborative of
the actor’s criminal purpose
o This standard shifts the emphasis to overt acts of the defendant which
convincingly demonstrate a firm purpose to commit a crime
Shift emphasis from what remains to be to what already has been done
Code’s requirement of proof:
o (1) that D must have been acting with the kind of culpability otherwise required
for the commission of the crime D is charged with attempting, and
o (2) that D must have been engaged in conduct which constituted a substantial step
toward the commission of the crime
Affirmative Defense of Abandonment = abandonment of efforts to commit the crime
when circumstances manifest a complete and voluntary renunciation of criminal purpose
o Abandonment or renunciation is not complete and voluntary if it is motivated
because either:
(a) the defendant has failed to complete the attempt because of
unanticipated difficulties, unexpected resistance, or circumstances that
increase the probability of detection or apprehension, OR
(b) D fails to consummate the attempted offense after deciding to postpone
his endeavors until another time or to substitute another victim or another,
but similar, endeavor
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Mens rea of an attempt is the specific intent to commit the targeted offense
o The mental state required for commission of an attempt may be narrower than the
mental state or mental states required for commission of the target offense
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State’s expert noted that it was significant that D agreed to use, and if fact did use,
condoms with a woman for whom he expressed affection, but did not use condoms with
the other women with whom he had sex
o D said that if he were positive, he would spread the virus to others
o ^such statements, coupled with D’s behavior, showed intentional, deliberate
conduct
Issue: Sufficient evidence to show that D intended to cause death or serious bodily
injury?
Holding: Yes, particularly in light of the pattern of exploitation over a long period of
time, a rational fact finder could conclude beyond a reasonable doubt that D did not act
impulsively merely to satisfy his sexual desires, but instead acted deliberately to cause his
victims serious bodily harm injury and death
Law/Reasoning: A person is guilty of attempting to commit a crime “when the person
intentionally engages in conduct which constitutes a substantial step toward commission
of the crime.”
A person commits assault in the first degree when “the person intentionally causes
serious physical injury to another by means of a deadly or dangerous weapon.”
A person commits attempted murder when he or she attempts, without justification or
excuse, intentionally to cause the death of another human being.
o To act “intentionally” is to “act with a conscious objective to cause the result or to
engage in the conduct so described.”
D had been told, and he acknowledged, that having unprotected sex and transmitting the
disease was “murder”
o In spite of that awareness, D engaged in a persistent pattern of recruiting sexual
partners over a period of many months, consistently concealed or lied about his
HIV status, and refused or pretended to wear a condom
o D told at least one person that he intended to spread the disease to others by such
conduct
His conduct demonstrates that his objective was more than mere sexual gratification
o When he engaged in sexual relations with the woman he hoped to marry, he
consistently wore condoms and made no attempt to conceal his HIV status
o When he had sex with others, in contrast, he concealed or lied about his condition
and refused any protection.
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Many common law jurisdictions hold an accomplice liable not only for the crime he
assisted, but also for any other crime that was the natural and probably consequence of
the crime he assisted
The other crime must have been the reasonably foreseeable consequence of the intended
crime
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Equal Protection
The Equal Protection Clause of the Fourteenth Amendment prohibits each state
government from denying to “any person within its jurisdiction the equal protection of
the laws.”
o Prohibits governments from treating people differently based on their race unless
such treatment serves a “compelling state interest” and is “narrowly tailored” to
serve that interest
o Strict scrutiny test b/c very few government actions can satisfy this stringent test
Recently, SCOTUS has applied this “strict scrutiny” test only to racial discrimination that
is “intentional.”
o Unintentional conduct that results in people being treated differently on the basis
of their race is subjected to a much lower level of scrutiny – whether the state has
a “rational basis” for the unintentional discrimination
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