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Criminal Law 11/14/2013 12:15:00 PM

Actus reus: guilty act, the external element of a crime, physical
When proved beyond a reasonable doubt, in combination with mens
rea, produces criminal liability.
o Martin v. State, 1944: defendant arrest for public
drunkenness after being arrested in his home.
In order to have a valid actus reas in a crime, the
act or omission must be voluntary.
o People v. Newton, 1970: defendant charged with killing police
officer despite being unconscious.
In order to have a valid actus reas, the act must
be voluntary and the actor must be conscious.**
o Pope v. State, 1979:
In general, the law does not punish those who fail
to act when another is in distress. There must be
a legal duty for failing to act in order to be liable
for failure to act.
o Jones v. U.S., 1970 ***important***
When a statute is enacted, when a certain legally
recognized relationship exists (i.e. mother and
child, roommates, etc), when one has a
contractual duty, when one voluntarily assumes
the duty of care and when one creates the risk or
peril, there is a legal duty to act when another is
in distress, unless there is an inability to act.

Mens rea: "guilty mind", the internal element of a crime, mental
In jurisdictions with due process there must be actus reus and
mens rea to constitute the crime with which the defendant is
Mens rea terms that determine levels of mental state:
o Intentionally: the defendant must have intended the
conduct and the result of his conduct
o Knowingly: the defendant knew that the result was
reasonably likely (focusing on the effect/result)
U.S. v. Jewell, 1976
One who deliberately avoids positive
knowledge in order to avoid
responsibility for a crime is liable.
As a general rule, criminal liability does not
attach to a person who acted with the
absence of mental fault. The exception is
strict liability crimes.
o Recklessly: willful and wanton (based on a reasonable
o Negligently: defendant did not exercise a standard of care
that a reasonable person would have exercised in similar
o Malice:
Regina v. Cunningham, 1957
Malice requires (1) an intent to do the
harm that was done; or (2) recklessness as
to whether the harm occurs.
o Purpose:
Malice: The intentional commission of a wrongful act, absent
justification, with the intent to cause harm to others. malice is the
mental condition that motivates one individual to take the life of
another individual without just cause or provocation.
o Intent
o Depraved heart

The different levels of mental state can be divided into specific and general
General intent the defendant intended the conduct
o usually includes reckless and negligence based crimes. All
that is required is that the defendant intended the
conduct as opposed to the conduct and result.
Specific intent the defendant intended the conduct and the result
o usually includes intentional and knowledge based crimes. It is
required that the defendant intend the conduct and the
result of said conduct. For a specific intent crime, the mens
rea will typically be written into the statute.

Mens Rea Statutory Language Examples of Mental
Specific Intent/Other
subjective mental state
Intent, knowledge,
malice, conscious
disregard, malice
Intoxication, diminished
actuality, mistake of fact
General (imputed)
Willful, unlawful,
Reasonable mistake of
Strict liability Lack of other words, light
penalties, public welfare
or regulatory offense

Mistake of Law
Mistake of law is not a defense in criminal law with the following
exceptions: 1) if highest officer in that state issues an opinion that
is legally wrong, then that opinion would be a defense, 2) where
there is a court decree naming the person who relies upon it would
be a defense or 3) where a statute has been recently repealed. The
private attorneys opinion is not a defense to mistake of law.
o People v. Marrero (1987)
Mistake of law regarding a statutory definition is
not a valid defense unless the mistaken belief is
based on an official statement of the law
contained in a statute or issued by a public

Mistake of Fact
While a person has committed the physical element of an offence,
because they were laboring under a mistake of fact, they never
formed the required mens rea. They can escape liability for a crime
that requires mens rea, if they honestly and reasonably mistook the

Crime Actus Reus Mens Rea
Murder Killing of another With malicious intent
Manslaughter Killing of another recklessly

Both crimes have the same actus reus component, but the mens rea
component is different.

Strict Liability: where liability is imposed without any demonstrated
culpability, not even negligence, with respect to at least one of the material
elements of the offense.
U.S. v. Balint (1922)
o The United States contended that the knowledge that
drugs were inhibited (in violation of Narcotics Act of
1914) was not required to sustain the charge for
selling illegal drugs.
o Policy Issue: Better to protect the innocent buyer from the
harm of the drug than the innocent seller.
U.S. v. Dotterweich (1943)
o The United States contended that someone in a
position of knowledge should be aware of regulation in
their business industry (Mislabeled products were in
violation of the Food and Drug Acts of 1906).
o Policy Issue: Burden is placed on those who have the
opportunity of informing themselves of the existence of
conditions imposed for protection of consumers rather than
throw the hazard on the wholly helpless, innocent public.
Morissette v. U.S. (1952)
o Crimes in violation of plain regulatory law (U.S. Code
which governs military spaces) like conversion, require
mens rea as to the commission of the crime itself. The
mere omission from the language of the statute of any
mention of intent is not to be construed as eliminating
the element of intent from the crime.
Staples v. U.S. (1994)
o Absent a clear congressional statement that mens rea
is not required, the public welfare/strict liability
rationale should not be applied to interpret any statute
that fails to mention mental state as an element of the

Important Notes:
A. **Policy of protecting the innocent public from harm gave rise to
strict liability crimes**
B. malum per se (traditional): crimes that are wrong in themselves, such as
murder, rape and assault that have both mens rea and actus reus.
C. When a case with no mens rea comes into view, you must determine if
the statute is for protection of the public, or if it is a traditional (malum
per se) crime.

Vicarious Liability: the responsibility of the superior for the acts of their
subordinate, or, in a broader sense, the responsibility of any third party that
had the "right, ability or duty to control" the activities of a violator
State v. Guminga (1986)
o An individual cannot be held liable for a crime
punishable by imprisonment where that individual did
not commit, have knowledge or give consent to the
commission of that crime.

There are three theories of homicide & there is manslaughter:
Expressed Malice: deliberate intention to unlawfully take a life
Implied Malice: conscious disregard for human life and an
abandoned and malignant heart
Felony Murder: Any killing during one of 13 felonies
Manslaughter: Vol/ Heat of Passion or imperfect self defense
Invol +vehicular/ criminal negligence

What distinguishes criminal from non-criminal behavior?
o Usually, turns on such issues as causation, self-defense,
insanity, etc.
What factors warrant greater or lesser punishment when behavior
qualifies as criminal?
o Turns on such issues as being a product of carelessness v.

***malice aforethought is the distinguishing characteristic which makes a
homicide murder rather than manslaughter.***

Another way to look at the chart above
Intentional Killing Unintentional
Commission of
another crime

First Degree:

1. Intent to kill
2. Premeditation
& Deliberation

1. Intent to
commit a felony
2. Malice
Felony Murder
1. Abolition
2. Dangerousness
3. Who does the

Second Degree

1. Intent to kill
2. w/o
premeditation or

1. Knowledge
that death is
2. Extremely high
risk behavior
(depraved heart)
3. Foreseeable


1. Intent to kill
2. Legal,
1. Reckless
2. High risk
2. likely that
death will result

**legal provocation in common law had to occur directly in the actors
presence (extreme battery, mutual combat, illegal arrest, abuse of close
relative and sudden discovery of adultery), legal provocation in modern law
had to do with the reasonable person standard and the totality of
***BARRKUM: Buglary Arson Rape Robbery Kidnapping Mayhem***

Murder: the unlawful killing of a human being with malice aforethought
First degree murder: killing of another, with intent to kill and
premeditation with deliberation.
o Commonwealth v. Carroll (1963):
While premeditation is an element of first-degree
murder, where a killing is willful, deliberate and
intentional, no time is too short for the necessary
premeditation to occur.
o State v. Guthrie (1995): Defendant was convicted of first-
degree murder for stabbing his colleague upon becoming
agitated by the colleagues teasing.
In order to establish premeditation and
deliberation under the first-degree murder
statute, there must be some evidence that
Defendant considered and weighed his decision to
**There is no fixed time but there must be some time to constitute
Second degree murder: malice in the form of an intent to kill, with
premeditation OR all other kinds of murder not described to be first
degree murder (MPC).
o Girouard v. State (1991): Defendant was convicted of second-
degree murder for having ended a verbal domestic fight with
his wife by stabbing her nineteen times after she verbally
provoked him.
Words alone are not adequate provocation to
reduce a second- degree murder charge to
voluntary manslaughter.
Traditional adequate provocation happens when
defendant is present when the following occurs:
extreme assault/battery, mutual combat, illegal arrest,
injury/abuse of close relative or sudden discovery of
spouses adultery.
Common Law provocation happens when reasonable
circumstances warrant that a reasonable person
become enraged.
o Maher v. People (1862): Defendant was charged for assault
with the intent to murder after entering a saloon and shooting
Patrick Hunt, who he claimed had allegedly had an adulterous
intercourse with his wife.
In determining whether the provocation is
sufficient or reasonable, an objective standard
should be used unless the person whose guilt is in
question is shown to have some peculiar
weakness of the mind that arises from something
other than wickedness or cruelty.
o Commonwealth v. Malone (1946): Defendant Malone was
convicted of murder for killing his friend while playing Russian
roulette. Defendant argued that he did not intend to harm the
Malice, the state of mind required for murder, is
evidenced where an individual performs an
uncalled for act in disregard of its likely harmful
effects on another even where the harmful result
is not intended
Model Penal Code 210.2(1)(b), which treats an
unintended killing as murder when it is committed
recklessly and under circumstances manifesting
extreme indifference to the value of human life.
o United States v. Fleming (1984): Defendant Fleming was
charged and convicted of second-degree murder for killing
someone while driving under the influence of alcohol.
Malice can be established by evidence that
Defendant acted recklessly; it does not require
proof that the defendant acted with ill will.
Manslaughter: killing of another with adequate provocation.

Civil v. Criminal liability for murder/manslaughter
Commonwealth v. Welansky (1944): Nightclub fire where patrons
were killed.
o Where there is a duty of care for the safety of invitees
onto the premises of a business, there is a duty of care
for the safety those visitors by the person who
maintains the premises. Intentional failure to take such
care in disregard of the probable harmful consequences
of that failure constitutes wanton or reckless conduct.
State v. Williams (1971): Indian couple whos child died of
gangrene in the mouth after they failed to take it to the doctor.
o Under the penal code of Washington, ordinary
negligence is sufficient to support a manslaughter

Felony Murder Rule: if a killing occurs during the commission or attempted
commission of a felony, the person or persons responsible for the felony can
be charged with murder.
a. Intent to kill is not a necessary element of this type of murder
b. the felony must be a proximate cause of the death
c. ***this is NOT strict liability, but the intent to commit a felony***
d. Policy: knowingly creating a risk of death in the context of another
criminal act is more culpable behavior than knowingly creating a
risk of death in the context of an innocent or less culpable act.
Regina v. Serne (1887): Man burnt down his house to collect
insurance money but in the process, his two sons were killed.
o Any act that is known to be dangerous and likely to
cause death, if done for the purpose of committing a
felony which causes death, amounts to murder.
People v. Stamp (1969): Defendant robbed a man who soon after
died of a heart-attack as a result of the stress.
o As long as the homicide is the direct causal result of
the robbery the felony-murder rule applies whether or
not the death was a natural or probable consequence of
the robbery.
People v. Phillips (1966): The defendant is a chiropractor who was
convicted of second-degree felony-murder in connection with the
death of one of his patients. The underlying felony was grand theft
and the defendant appeals the felony-murder charge.
o The liability of the felony-murder rule is limited to
those felonies that are inherently dangerous.
o Inherent danger can be determined: 1) in the abstract by
looking at the wording of the governing statute or 2) examine
the attended circumstances as committed, using the facts of
the crime to determine if it was done in a dangerous way.
State v. Canola (1977): The defendant, along with three
confederates, were in the process of robbing a store when a victim
of the robbery, attempting to resist, fatally shot one of the
defendants co-felons.
o The doctrine of felony-murder does not extend to
situations where someone is killed as a result of the
commission of the felony, but not by an act directly
attributed to the felon.
Under agency theory, the identity of the actual killed
becomes a central issue; only if the act of killing is done
by a co-felon or someone acting in concert with a co-
felon will the felony murder rule apply.
Under the proximate cause theory, creates felons
liability for all the killings done in the course of
committing a felony.
Rape: an unlawful act of sexual intercourse accomplished with a female, by
force or threat of force against her will (or without consent). It is rape:
a. Where a person is incapable of giving consent by statute;
b. Where it is accomplished against a persons will by means of force;
o State v. Rusk (1981): The Defendant, was convicted of
second-degree rape after he took the victims car keys and
escorted her to his apartment where they engaged in sexual
The reasonableness of the victims fear in
determining whether sufficient force was used to
support a rape conviction is a question of fact for
the jury.
Sufficiency of the evidence standard: whether,
after viewing the evidence in the light most
favorable to the prosecution, any rational trier of
fact could have found the essential elements of
the crime beyond a reasonable doubt.
c. Where a person is prevented from resisting by any intoxicating or
anesthetic substance, mental or physical disability or where a
person is unconscious;
d. Where a person submits under the belief that the person
committing the act is the persons spouse;
o People v. Evans (1975): Defendant posed as a psychologist
and lured Victim to an apartment in order to have sexual
intercourse. Victim stated that it was without her consent.
Rape is achieved by forcible compulsion, which
requires physical force by the defendant; rape
cannot be achieved by fraud or trick so long as
there is actual consent to the act of intercourse.
o Boro v. Superior Court (1985): The victim was fraudulently
induced into having consensual sexual intercourse with the
Fraud in the inducement of sexual intercourse
does not vitiate consent.
**Fraud infactum: a falsehood about the act itself
(as in the above case) is considered rape.
Fraud in the inducement: a falsehood about
external factors, such as ones salary or family
linage, is not rape.
o Marital exception to rape doesnt exist (People v. Liberta,
No rational basis for distinguishing between non-marital
rape and marital rape
Corroboration: additional evidence that must confirm or support a victims
No American state now requires corroboration in all forcible rape
Those accused of rape must now attack the credibility of their
accuser or to claim consent and offer evidence of accusers sexual
past, at trial to defeat the charges.
Rape shield laws exist to limit the admissibility of evidence bearing
on a rape complainants prior sexual behavior.
o State v. DeLawder (1975): DeLawder was convicted and
sentenced to 15 years in prison for having sexual relations
with a female under the age of 14. At trial, testimony of the
girls prior sexual history was excluded. D sought post-
conviction relief based on the argument that his rights under
the Confrontation Clause of the Sixth Amendment had been
An accused persons Constitutional right to
confront a witness and seek out the truth takes
weight over the claimants desirability to testify
free from embarrassment and preservation of her
Why does it matter if he still rape a minor? Its still statutory rape.

Related crimes
Assault Use of force; attempted use of force
on another with present ability to
carry it out; touching with sexual
Sexual Abuse
Civil Protection Order
Attempted Rape

***consent and mens rea are the only things that set rape apart from
consensual sexual intercourse***

Theft Offenses
Larceny: the unlawful taking and carrying away (asportation) of the personal
property of another, with the intent to permanently deprive them of their
Larceny is a specific intent crime. The taking/carrying away is the
intent, the intent to permanently deprive is the 2
Larceny pre-emps all other theft crimes. When larceny is proven, it
can NOT be embezzlement.
Larceny by trick: the unlawful taking and carrying away (asportation) of the
personal property of another, with the intent to permanently deprive by
tricking another into relinquishing possession. (give me $20 and Ill get you
lunch. *person never returns with lunch*)
False pretenses: Any false statement oral or written of past or present facet
made with the intent to defraud, causing complaining witness to give up
possession and TITLE of an item.
Robbery: the taking of something of value by force or threat of force from
the lawful possession of another.
Extortion: the taking of property from another by threat of future violence.
Misappropriation: possession or control of property of another.
Theft: the taking of anothers property committed by a stranger with no
right to touch the object taken.
Commonwealth v. Tluchak (1950): The Appellants, Mr. and Mrs.
Tluchak (Appellants), filed separate appeals for larceny convictions.
The case arose out of a real estate transaction, whereby the
Appellants sold their farm to the prosecutor and his wife.
o An individual in lawful possession of the goods or
money of another cannot commit larceny by converting
them to his own use because larceny is defined as a
criminal trespass on the right of possession.
Theft by Fraud: The use of deception to obtain either possession or title of
anothers property.
When possession of a property is obtained by trick or fraud, the
owner retains constructive possession of the property making the
crime larceny.
o Hufstetler v. State (1996): Appellant was convicted of petty
larceny. The court considers whether based on the facts, the
conviction can be sustained.
A person who obtains property via consent of its
owner through trick or fraud is guilty of larceny
because the trick or fraud vitiates the transaction
and the owner is deemed to retain constructive
Graham v. United States (1950): A man name Gal
consulted Appellant in his professional capacity to
represent him on a disorderly conduct charge. Gal paid
Appellant money to bribe the police and the appellant
converted the money to his own use.
An individual who obtains money from
another by representing he will perform a
particular service for that person, with the
intention of converting the money to his own
use, is guilty of larceny.
False pretenses: Any false statement oral or written of past or present facet
made with the intent to defraud, causing complaining witness to give up
possession and ownership of an item.
Burglary (traditional rule): unlawful breaking and entering into the dwelling
of another at night with the intent to commit a felony.
Burglary (modern rule): unlawful entry into the dwelling, office, warehouse
or any other structure, anytime, day or night, with intent to commit a crime.

*Aspirtation is moving an object from its original resting place*

Embezzlement: the unlawful conversion (misappropriation) of anothers
property (by a party in a judiciary relationship, in the course of their
employment) that is already in the possession of the perpetrator.
Nolan v. State (1957): Defendant was convicted of embezzlement
and contends that evidence produced at trial makes the crime
larceny and not embezzlement.
o The crime of larceny is committed when an individual
steals goods while in the possession of the owner.
Riggins v. State (1956): Defendant was found guilty of
embezzlement. The Court seeks to determine whether a collection
agent can be found guilty of embezzlement under the statutory
scheme in the State of Illinois.
o An individual who acts as an agent receiving money in
a fiduciary capacity is within the purview of the
embezzlement statute.

***Embezzlement is when property doesnt make it to the owners actual
possession, whereas, larceny is when property is taken from the owner***

Type Definition Example
Ownership Legal title coupled with
exclusive legal right to

Custody Holding property under
one's control.

Actual Possession Physical control of ones
property on or about
their person.
Robbery, Larceny
Constructive Possession Where a person has
knowledge of an object
plus the ability to
control the object, even
if the possession is not
on their person.

Forgery: the intentional making and/or altering of a document with intent to
Uttering: negotiation of a document for transfer with intent to

A person commits the offense of attempt when, with intent to commit a
specific offense, he or she does any act, which constitutes a substantial step
toward the commission of that offense. (Intent + overt acts + satisfy one of
4 tests)
An attempt requires purpose (or specific intent) to commit the
target crime even if the completed crime does not require specific
intent. It also requires some overt action.
There is no attempted felony murder charge (legal fiction; you can
have attempted rape that happened under dangerous
circumstances that results in a death = felony murder) or
attempted involuntary murder charge (involuntary=no intent).
The required mens rea (intent) is satisfied if the defendant acts with
the purpose of causing or with the belief that his conduct will cause
the prohibited result.
Four tests: 1) final step: the actor has done everything up to the
last step of completing the crime, 2) equivocality: examines how
clearly ones acts bespeak his intent, 3) close proximity (most
used): examines the actors closeness of completing the crime, 4)
substantial step test (federal rule): has the actor taken substantial
steps in completion of the crime?
o Smallwood v. State (1996): The Defendant, Smallwood, a
knowingly HIV-positive individual (Defendant), was convicted
of attempted murder of three rape victims for sexually
assaulting them without using a condom.
Absent any other circumstantial evidence, such as
a statement of intent to kill a defendant made
during an assault, the act of having unprotected
sex with the knowledge that one is HIV positive
was not sufficient for the court to draw an
inference of intent to kill.
Attempt v. Preparation: to constitute a criminal attempt, the first
step along the way of criminal intent is not necessarily sufficient
and the final step is not necessarily required.
o People v. Rizzo (1927): Defendant was convicted of
attempted robbery. However, at the time he was arrested, he
never found the targeted individual he wanted to rob.
An attempt to commit a crime is not proven
(even if intent is proven) unless a defendants
actions come very near to the actual
accomplishment of the attempted crime.
o McQuirter v. State (1953): The Defendant, a black man, was
convicted of attempted rape. The Defendant was witnessed
by a white woman following her down a road. After his arrest,
the Defendant also allegedly confessed to the police that he
intended to rape her.
The element of intent is a question for the jury,
who may consider social conditions and customs
founded upon racial differences in determining
whether a defendant intended to commit a
particular crime.
o United States v. Jackson (1977): Defendants were convicted
of conspiracy to commit an armed robbery, two counts of
attempted robbery, and possession of unregistered sawed-off
shotguns. Defendants sought review of the attempted robbery
convictions on the basis that they did not cross the line which
separated mere preparation from attempt.

Factual impossibility: Liability for attempt exists if such crime could have
been committed had the attendant circumstances been as such person
believed them to be.
Legal impossibility: Once cant attempt to do something that is legally not a
crime. *was a defense under common law*
All jurisdictions no longer allow for any impossibility defense.
Impossibility only relates to the attempt of any offense.
o People v. Jaffe (1906): Defendant was charged with receipt of
stolen property for acceptance of several yards of cloth
belonging to a business partnership, that was not actually
stolen. After a subsequent trial, the defendant was convicted
of an attempt to commit the felony charged in the indictment.
Accordingly, even though defendant may have
had the requisite mental state for committing a
crime of larceny, his actions in purchasing the
cloth that was not actually stolen did not violate
o People v. Dlugash (1977): Bush, Geller and Dlugash were
drinking together. They got into an argument. Bush pulled out
a gun and shot Geller multiple times, almost certainly killing
him. After about five minutes, Dlugash pulled out a gun and
shot Geller's body a few more times.
a person is guilty of attempt when they engage in
conduct which tends to effect the commission of
such crime. It is no defense that, under the
attendant circumstances, the crime was factually
or legally impossible, "if such crime could have
been committed had the attendant circumstances
been as such person believed them to be."
TEST: 1) what did the defendant physically do? 2)

Accomplice Liability
A theory by which a defendant is guilty of a specific substantive offense
committed by another person. The defendant is guilty because he purposely
did something to help with the commission of that crime. Under common law
the following is true:
Principal in the 1
degree: actual perpetrator of the crime.
Principal in the 2
degree: one who aids and abets the principal by
being present or nearby.
Accessory before the fact: one, who is not present during the
commission of the crime, but helped prepare for the crime.
Accessory after the fact: one, who knows that a felony has been
committed and received, relieved, comforted or assisted the felon.
Aiding and Abetting: a theory to charge the person with the
substantive crime, NOT A CRIME IN ITSELF: 1) intent to be a part
in crime, 2) intend to complete a criminal objective, 3) must be
present, 4r) acts in furtherance of the crime.
Under modern law, all participants of a crime are subject to the same
punishment except for an accessory after the fact.
Principals need not be convicted for accomplices to be found guilty.
There is no need to charge accomplices with specific form of
o Hicks v. United States (1893): Hicks (Defendant), was jointly
indicted with another man on one count of murder. Defendant
had been present when his companion (co-defendant) shot
and killed a man at the conclusion of a discussion. Defendant
then rode off on horseback with co-defendant after the
shooting. Defendant was subsequently captured and
convicted of murder.
The presence of another person at the scene of a
murder who does not assist in carrying out the
murder is not sufficient to implicate that person
as an accomplice in the absence of evidence of a
prior agreement to render assistance in the crime.
o State v. Gladstone (1970): Gladstone (Defendant), who
offered the name and address of local drug dealer to a
prospective buyer, was convicted of aiding and abetting
another individual in the unlawful sale of marijuana.
In order to be convicted of having aided and
abetted a criminal offense, it must be shown that
defendant did something in association or
connection with the principal offender to
accomplish the crime.
o People v. Luparello (1987): A friend who the Defendant,
Luparello, sent to victims house to elicit information as to his
former lovers whereabouts shot and killed the victim when he
refused to divulge the requested information. Defendant was
charged with murder as an accomplice, though he was not
present at the murder scene.
An accomplice is criminally responsible for the
actual crime committed, rather than merely the
intended crime.
Resolving to act in combination to commit a crime, demonstrated by the
Specific intent crime: 1) intent to agree, 2) intent to complete the
substantive crime.
o People v. Lauria (1967): The Defendant, Lauria, operated an
answering service and knew that some of his customers were
prostitutes who used the service to pick up calls from
potential clients.
A supplier becomes part of a criminal conspiracy
when, knowing that his goods are being used for
unlawful purposes, there is direct evidence that
he intends to participate in the furtherance of the
crime, or where an inference of intent can be
drawn through either (a) his special interest in
the activity or (b) the aggravated nature of the
crime itself.
o People v. Pinkerton: Two brothers were convicted of violations
of the Internal Revenue Code. The Defendant challenged his
conviction for the substantive offenses on the basis that the
evidence only showed he had been a party to a criminal
The acts of one conspirator done in furtherance of
the criminal conspiracy are attributable to all co-
conspirators. (Pinkerton Rule)
Co-conspirators cant be prosecuted for a crime
committed by another co-conspirator that they
had no knowledge about despite their conspiring.
(New York Rule)
o Butler v. U.S. (xxxx): *Read dissent, written by Pryor*

*Know the difference between the Pinkerton rule/NY rule in order to
understand co-conspiractor v. aiders and abetters.

*Read Lauria for 3 exceptions to liability for knowledge

Defenses: defenses to criminal charges.
Defense has the burden of raising an affirmative defenses, the
government has the burden of proving each element of the offense
and disproving the defenses beyond a reasonable doubt.
Relevant Questions to a claim of self defense:
o Who is the aggressor?
o Do we think it was an honest and reasonable belief of
imminent harm?
o Was the response reasonable?

Justification Tree: choosing the
lesser of two evils.
Excuse Tree: circumstances so
compelling that law abiding citizens
would do the same.
Self Defense: Where a person has
an honest and reasonable belief of
imminent harm they may defend
Duress: Unlawful pressure exerted
upon a person to coerce that person
to perform an act that he or she
themselves from harm. In most
jurisdictions, retreat is optional
under criminal law. (Goetz)
ordinarily would not willfully perform.
This defense is applicable only where
committed in response to a threat of
present, imminent and impending
death or serious bodily harm.
Defense of others: Entrapment: occurs only when the
criminal conduct committed was the
product of the creative activity of law
enforcement officials. (Sherman,
Russell, Jacobson)

Subjective test: looks at defendants
mental disposition.
Objective test: looks at law
enforcements actions.

Defense of property: Intoxication: Where a defendants
intoxication (voluntarily or
involuntarily) negates the mens rea in
crimes of specific intent. Has no
barring on negligent crimes, only
intent crimes. (Hood)
Necessity: (1) force of nature, (2)
imminent harm, (3) defendant did
not create harm, (4) no other ready
alternatives, (5) choice between
lesser of two evils (Unger)
Insanity: a defendants mental state
at the time of the crime, which
preclude criminal responsibility.
(MNaghten) Different from
competency (the ability to understand
the nature of the proceedings at the
time of trial). *New theory: drug
induced insanity (test: long history of
drug use to produce a drug related

People v. Goetz: Bernhard Goetz (Defendant) shot and wounded
four youths he believed to be trying to play with him.
o A person may use deadly force in self-defense if he
reasonably believes that said force is necessary to
protect himself. (Objective Person Standard)
People v. Unger (1977): Francis Unger (Defendant), escaped from a
minimum-security prison after fellow inmates had threatened him.
o The defense of necessity is available to prison escape
situations where the prisoner is choosing to break the
law to avoid a greater evil.
State v. Toscano (1977): Joseph Toscano (Defendant), was
convicted of conspiring to obtain money by false pretenses. The
Defendant argued that he acted under duress, but the trial court
judge ruled the threatened harm was not sufficiently imminent. The
appellate division affirmed the conviction.
o The defense of duress applies to crimes other than
murder if an individual participated in conduct because
he was coerced to do so by the use of force or threat of
force against him or another person whereby a person
of reasonable firmness in his situation would have been
unable to resist.
Sherman v. U.S.:
U.S. v. Russell (1973): Richard Russell manufactured
methamphetamine using an essential chemical provided by an
undercover federal agent. The chemical is difficult to acquire, and
without the chemical it is impossible to manufacture the drug.
o In order to determine whether the defense of
entrapment is applicable, a subjective test should be
applied that focuses on the intentions and conduct of
the defendant. *prevailing approach* looks at defendants
state of minds predisposition.
Jacobson v. U.S. (1992): The defendant, Keith Jacobson ordered
child pornography through a government sting operation. The
defendant argued the defense of entrapment, claiming his order
came only after twenty-six months of mailings from the
o The burden of proof is on the state to prove that a
defendant is predisposed to violate the law before the
government intervenes.
People v. Hood (1969): The intoxicated Defendant, Hood
(Defendant), was resisting arrest and during the course of the
struggle with the officer, took the officers gun and shot him in the
legs. The Defendant was convicted of assault with a deadly weapon
upon a peace officer and assault with intent to murder the officer.
The convictions were reversed due to a lack of proper instruction by
the court and because the trial court gave conflicting instructions on
o An individual who is intoxicated can form the requisite
intent to commit the crime of assault. What he is
incapable of doing is determining good judgment about
the social consequences of his acts or controlling
impulses toward socially unacceptable acts.
MNaghten Case (1843): MNaghten was charged with the murder
of Edward Drummond, secretary to the Prime Minister and used the
insanity defense at trial. At the time of his arrest, he told police that
he came to London to murder the Prime Minister because he was
told to do so. The jury reached a verdict of not guilty and a meeting
at the House of Lords ensued in order to determine what the
standards for the insanity defense would be.
o Under the M'Naghten rule, a criminal defendant is not
guilty by reason of insanity if, at the time of the alleged
criminal act, the defendant was so deranged that she
did not know the nature or quality of her actions or, if
she knew the nature and quality of her actions, she
was so deranged that she did not know that what she
was doing was wrong.
Outer Circle: Sick & Unusual
Inner Circle: Medical
Inner-most Circle: Legal
o MNaughten Test: a criminal defendant is not guilty by reason
of insanity if, at the time of the alleged criminal act, the
defendant was so deranged that she did not know the nature
or quality of her actions.
o Irresistible Impulse Test: that the mind of the accused was in
a diseased and unsound state, the question will be, whether
the disease existed to so high a degree, that for the time
being it overwhelmed the reason, conscience, and judgment,
and whether the prisoneracted from an irresistible and
incontrollable impulse.
o Durham Test: a criminal defendant cannot be convicted of a
crime if the act was the result of a mental disease or defect at
the time of the incident.
o MPC Test: a person is not responsible for criminal conduct as
a result of mental disease if he lacks capacity to appreciate
the criminality of his conduct or to conform his conduct to the
requirements of the law.
Bolton hearing occurs after the trial takes place when a defendant is
found not guilty by reason of insanity.
Prior to a Bolton hearing, the defendant is held in a federal
treatment facility (mental hospital).
Once confined to the mental hospital, you must undergo treatment.
To be released, the defendant must show, by clear and convincing
evidence, that the person is no longer mentally ill or that if they are
still mentally ill, that they are not a threat to themselves or others.

Miranda: In order to protect the accused, no statement made by the accused
while in custody and being interrogated can be used against the person
unless the person has been read their rights and they have waived those

Heresay: an out of court statement by the declarant offered in court for the
truth that is asserted in the statement.

Hypo #1: Man prepares to rob a painting from an art store. When he is
loading his van with his supplies, he hears a woman in a burning building
down the street yelling for help. He refuses to help the woman, but an
Olympic swimmer comes by and looks to rescue the woman. She asked the
man to borrow his ladder (in his van) and he refuses. She pushes the man
and takes his ladder without permission and goes to rescue the woman. She
brings the man back his ladder. He packs it back in the van and heads off to
the art store, where he is caught before he can fully break into the store and
steal the painting.

Failure to act
Attempt (including the tests)
Statute about instruments of crime
Larceny (b/c crime wasnt completed yet & we arent sure whether it was

Judge Robinson says, self defense begins and ends with necessity.

Lesser included offenses:
Simple assault is included in overarching offense of Assault with a deadly
Unauthorized entry is included in the overarching offense of burglary.
Criminal Procedure Notes 11/14/2013 12:15:00 PM
Arrest, Search & Seizure
Total circumstances

Line up
Ride By
Composite Drawings

Whether the procedure is unduly suggestive so as likely to cause an
irrevocable misidentification.
How long? Prosecution will show cumulative evidence
Wade v. U.S.: line up requires the presence of an attorney because
it is a critical stage of the prosecution.
amendment guarantees the right to avoid self incrimination including
statements, right to counsel can be waived

United States v. Wade, 388 U.S. 218 (1967) was a case decided by the
Supreme Court of the United States that held that a criminal defendant has
a Sixth Amendment right to counsel at a lineup held after indictment.

Adjudication circle (FRCrimPoverview of court procedure), Investigation
circle and