ACTUS REUS (AR)

A voluntary act, or 2) omission when there is a legal duty

1) VOLUNTARY ACT
i) MPC: Under the MPC the following are not voluntary acts (a) (b) (c) (d) Reflex or convulsion Bodily movement during unconsciousness or sleep Conduct due to hypnosis A bodily conduct that otherwise is not a product of the effort or determination of the actor, either conscious or habitual (Note: This is a broad category) (e) Unconsciousness: A person must be conscious of their acts to be held liable for the crime (not necessarily a coma) 1. Exception: If unconsciousness (e.g. intoxication) is self-induced, the defense of unconsciousness is not very strong.

ii) OMISSION (this is voluntary ONLY if there is a legal duty to act)

(1) Is there a legal duty? (must argue all areas of duty below) (a) Is there a relationship between the D and the victim? 1. If statute imposes a duty to care for another 2. Special relationship (spouse, parents & kids) 3. Contract to provide care 4. Voluntary assumption of care + isolation 5. If D created the peril (b) The Good Samaritan statutes always enforce a clause that the duty only applies with relevant safety. (2) Was D aware of the opportunity to act? (3) Did the omission directly cause or worsen the injuries of the victim? (a) Person charged with duty of care is required to take steps that are reasonably calculated to achieve success.

MENS REA
MPC
MPC2.02 Levels of Culpability 1) can prove level reqd or level higher. 2) If there is a level mentioned in part of the statute that level applies for all the other elements, unless a contrary purpose plainly appears. 3) If no specified MR, default is recklessness (or purpose or knowledge) Conduct (bodily Circumstance Result movement) (conditions) (not always element) Purpose (Required Conscious Awareness, belief or Conscious objective/desire for attempts) objective/desire hope Aware Practically certain Knowledge Recklessness (default Subjective awareness ( did actually know) of substantial & unjustified risk that is culpability level) gross deviation from what law abiding person would do Indifference Objective/reasonable person would have been aware, gross deviation from Negligence Inattentiveness standard of reasonable care based on: 1) gravity of harm that foreseeably would result from s conduct, 2) probability of harm; 3) burden to of not engaging in risk MPC 2.02(7) Where knowledge is reqd, a high probability of fact will suffice (willful blindness) Conditional Intent: 2.02(6) Does condition take out of realm of people meant to be convicted by statute (negatives the mens rea)? (conviction upheld in conditional [if you dont cooperate, Ill kill you] carjackingHolloway) Common law or MPC?

Common Law
1) If MR included in statute then analyze sentence & statute purpose to see if it distributes, if specified M/R doesnt distribute then use default below unless in S/L 2) If no specified MR, default is malice/recklessness (can be fulfilled by knowledge) Specific intent : has some future purpose or actual knowledge of fact/circumstance . (murder, attempt, burglary, larceny, robbery)sort of like purpose/knowledge in MPC General intent aware of conduct & has knowledge, but no particular desire/purpose to bring about new circumstances x Must have mens rea for each charge: x Not using stop tap when stealing money from the gas meterleaklife in dangerCunningham x Sailor intends to get rum but burns the whole ship down in the processFaulkner is assumed to intend reasonably foreseeable consequences of action (inability to find corrupted juror doesnt bar specific intentNeiswender) Deliberate ignorance = mens rea. Awareness of probability of crime sufficient for mens rea (presence of marijuana in the trunkJewell)

STRICT LIABILITY- EXCEPTIONS TO MR

Common Law
Strict Liability Usu. involves newer statutory regulatory crimes where mens rea hard to prove Wrong in itselfno need for mens rea If its a strict liability statute, mistake of fact doesnt matter (underage girlRegina v.Prince; leaving pregnant wifeWhite) x Old crime that doesnt mention a reqd intent strict liability (accidental theft of casings Morrisette)

MPC
Only where explicitly stated in statute x Cant hold owner crim liable under a regulatory crime making it illegal to serve underage alcohol b/c of stigma, costs of crim convictionGuminga Can hold liable for strict liability speeding law w/ stuck cruise control despite lack of controlBaker

iii) Most S/L crimes are statutory crimes except statutory rape iv) S/L only imposed when background circumstances give rise to a preseumption of knowledge or a duty of knowledge (ex: deported immigrant & attempted reentry) v) Vicarious Liability liability imposed on one for the act of another (a) When incarceration is a possible sanction, no vicarious liability in S/L 1. Criminal penalties based on vicarious liability are a violation of substantive due process and that only civil penalties are constitutional. State v. Guminga (b) When no incarceration (ex. fines) 1. employers are criminally vicariously liable for the illegal conduct of their employees even in the absence of evidence of employer fault vi) Multifactor test for to determine if S/L (a) Common law crime (murder, stealing ex: Morisette- D took abandoned bomb casings), or Regulatory crime (ex- Balint(dist of narcotics) vitamin distribution case, deportation reentry must be S/L so others participating in activity will take extra precaution) (b) Malum Prohibitum (more likely S/L) vs. Malum insa (ex. theft) (any lack of fair warning may be defense) (c) Will legislative purpose be frustrated by implementing the mens rea requirement? If yes, then S/L (d) Type of punishment avoid S/L if severe punishment (e) High barriers of entry (more likely S/L) (f) Closely regulated? (more likely S/L) (g) Is it a common field of endeavor? (less likely S/L) ex: US v. Staples- rifle w/ metal casing filed down, b/ gun ownership is common so no S/L, need MR) (h) Inherent dangerousness of the act (i) Notice from social norms (having sex w/ young people) (j) Is it an omission? (less likely S/L) (k) Will social policy be compromised if prosecutors have to prove MR? if yes, then less likely S/L vii) Defense

(a) No mistake of Fact defense

Mistake of Fact (not defense in S/L)

i) Lesser crime theory
(a) Mistake of fact is not an excuse when even without the mistake the act would have been a lesser crime 1. NOTE: at CL, D would be charged w/ the higher offense, but MPC would only charge for lesser offense

ii) Moral wrong doctrine

(i) one can make a reasonable mistake & yet manifest a bad character or otherwise demonstrate worthiness of punishment 1. Regina v. Prince Man takes a girl with her dads consent not knowing she is 16 and is charged because the taking of the girl was a crime iii) Provides excuse for completed crimes (ex. Intend to steal book, believing it was someone elses, b/ find it is yours)- if it negates element of the crime b/c crime never completed iv) No excuse for attempt- since no requirement to complete crime, so long as D acts w/ necessary MR

Common Law
Mistake of Fact Mistake of Law
General Intent Honest & reasonable mistake of fact is a defense Sherry: Must be both honest & reasonable General Intent Mistake of law defense Hopkins even where relying on an official b/c official doesnt determine law Woodquickie divorce Specific intent Honest mistake of fact is a defense b/c it overcomes mens rea Reynolds: Just honest & not reckless Kelly: Honest Specific intent Honest mistake of law is a missing element Smithwhere is missing specific intent (thinks he is ripping up own floorboards)

MPC
2.04 (1) Ignorance/Mistake of fact or law is a defense if (a) it negatives the rqd culpability level; (b) the law allows it. (2) Defense is not allowed when the would have been guilty of another offense if the circumstances were as she thought they were; this will ONLY reduce the grade of the offense. (3) Mistake of law is a defense when (a) doesnt know of law & its unpublished; (b) acts in reasonable reliance on official statement of law later determined to be invalid Only a defense when afterwards the law is deemed invalidAlbertini Ignorance of law is no defense unless code allows itMarrero (misinterpretation of law defense)common law case

Mistake of Law
i) General Rule
(a) No excuse for personal misinterpretation of law- ex: Marrero D charged w/ unlicensed possession of gun, he thought he would be considered a peace officer. Court says no (b) Ignorance of law or personal misinterpretation of the law excuses noone EXCEPT

ii) Exceptions to Rule (a) Reasonable reliance doctrine1. Reliance on official interpretstion of law later determined to be invalid (statute, judicial decision, public officer) (b) Failure to give fair warning (Lambert v. state law requiring convicted people to register- statute dictated actual knowledge) (c) With ignorance or mistake that negates Mens Rea (ex: ignorance negates intent) (Regina v. Smith- D damaged property thinking it was his) iii) If D engages in conduct which he believes is lawful, when it is unlawful, this is no excuse iv) If D engages in conduct which he believes is lawful, when it is unlawful, and also makes a mistake of fact, can be charged w/ attempt as long as knowledge is not one of elements of offense this is no excuse (ex. Trying to illegally import alchohol not knowing that u dont actually have alcohol) v) vi) If D engages in conduct believing it is unlawful b/ it is infact not lawful, then there is no crime, or attempt.

Common Law
Mistake of Law
General Intent Mistake of law defense Hopkins even where relying on an official b/c official doesnt determine law Woodquickie divorce Specific intent Honest mistake of law is a missing element Smithwhere is missing specific intent (thinks he is ripping up own floorboards)

MPC2.04
Mistake of law is a defense when (a) doesnt know of law & its unpublished; (b) acts in reasonable reliance on official statement of law later determined to be invalid Only a defense when afterwards the law is deemed invalidAlbertini Ignorance of law is no defense unless code allows itMarrero (misinterpretation of law defense)common law case

HOMICIDE
1) MURDER- At common law there are no degrees of murder b/ statutes divide murder into 1st & 2nd degree (1) CL Murder Rule: Unlawful killing of another w/ malice aforethought 1. Malice aforethought is satisfied w/: i. intent to kill w/o provocation or on slight provocation ii. intent to kill one person b/u kill another/anybody iii. intent to cause grievous bodily harm iv. knowledge that act is likely to cause death or grievous bodily harm (recklessness depraved indifference to human life) v. intent to commit felony & during felony u kill someone vi. Interferring w/ law enforcement that results in death of someone st (ii) 1 Degree Murder a. Premeditated & Intentional Killings: courts have held the following: i. premeditation requires more than intention, requires 2nd order of reflection on intentions, some kind of pause - State v. Guthrie- D stabs V after being teased & flicked in nose ii. The time required to premeditate is no more than a brief moment of thought same as intent in some jx - Young v. State- premeditation formed when D pulls the trigger iii. 3 categories may point to premeditation: 1) Planning activity, 2) manner of killing, 3) motive (iii) 2nd Degree Murder a. Intentional killing- prove intent as follows: i. Ordinary people intent the natural & probable consequences of their actions, D is an ordinary person so he intended the consequences ii. Deadly weapon rule- when D intentionally uses a deadly weapon directed at a human being, an intent to kill may be inferred (2) MPC Murder
(i) Rule: A person is guilty of criminal homicide if he purposely, knowingly, recklessly or negligently causes death of another (murder, manslaughter or negligent homicide) (ii) Note- no malice aforethought as in CL (iii) Murder Rule: Criminal homicide is murder when it is i. committed purposely or knowingly or ii. recklessly under circumstances manifesting extreme indifference for human life (depraved heart)

iii. recklessness & indifference is presumed when D while committing robbery, rape, arson, burglary, kidnapping or felonious escape someone is killed (felony murder)

(3) DEFENSE (a) Self Defense (b) Duress or necessity? Depends on if CL or MPC (c) Imperfect Self Defense 1. May mitigate to manslaughter 2. If D has to retreat and fails to do so b/ instead responds w/ deadly force 3. If D kills another b/c he unreasonably belives the circumstances justify the killing

2) FELONY MURDER i. Rule: A person is guilty of murder if he kills someone during the commission or attempted commission of any felony a. MR only required for the actual felony b. Applies whether D kills V intentionally, recklessly, negligently, accidentally & unforeseeably c. Some states limit it to inherently dangerous felonies some dont d. Accomplice can also be prosecuted for FM e. MPC limits it to the following felonies: robbery, rape, arson, burglary, kidnapping or felonious escape - People v. Phillips court holds theft is no inherently dangerous so no felony murder ii. Merger Doctrine apply FM only where the predicate felony is somewhat independent of the killing a. Ex: manslaughter, assault & battery like felonies: the felony merges into the killing & cant be used as predicate b. If the elements of 1 crime are included in the other, the lesser crime merges into the higher (ex: if guilty of both manslaughter & murder then convicted only of murder.) c. Cant use involuntary manslaughter as predicate b/c it bumps crime up for no apparent justification d. Cant use felony murder if there is an actual murder. Must prove murder iii. Causation a. Agency analysis: Many jxs apply FM rule only when D or one of his agents causes death. D cant be blamed for deaths caused by Police or other parties b. Proximate Cause approach: Attaching liability for any death that is the direct & foreseeable result of the unlawful activity 1. Shield situations- when V is killed while being used as a shield by D c. Some jx say the killing must have somehow furthered the felony for felony murder to apply

3) MANSLAUGHTER (unlawful killing of another - w/ default of malice or recklessness) i. Always start w/ murder, then look for provocation that would decrease it to manslaughter ii. CL- Voluntary Manslaughter 1. Rule: Intentional homicide with the following provocation i. heat of passion ii. passion must result from adequate provocation (ORP) iii. Subjective & objective iv. Words alone will not suffice - (Giroud v. state, D stabs wife 19X after she insulted him & asked for divorce) v. Examples. of sufficient provocation: battery on D, mutual combat, Ds illegal arrest, injury or serious abuse of close relative, sudden discovery of spouses adultery (must witness intercourse) - Maher v. People- D didnt actually witness his 1. with no reasonable time to cool off 2. there must be a causal link b/t the provocation, passion & homicide iii. MPC- Manslaughter 1. Rule: homicide committed recklessly i. does the recklessness manifest an extreme indifferent to human life? If so, it may be murder ii. Intentional conduct, either commission or omission where there is a duty. iii. The likelihood of the risk is high iv. The gravity of the harm is great v. Ds subjective awareness of the risk- If likelihood of harm was that high then jury may infer that D should have known of the harm. vi. Knowing facts that would cause a reasonable man to know the danger is equivalent to knowing the danger 2. Rule: Homicide committed as a result of extreme mental or emotional disturbance (subjective) for which there is reasonable explanation or excuse. (determined by view of someone in Ds situation) i. Words alone can warrant manslaughter instruction ii. No rigid cooling off period iii. No need for actual provocation, can claim the defense if D believes although incorrectly, that V was responsible for the affront

iv. CL- In-Voluntary Manslaughter a. Criminal Negligence 1. Criminal negligent homicide 2. Gross deviation from the standard of care that reasonable people would exercise in the same situation 3. SHOULD HAVE BEEN aware of the risk (if D is actually aware of risk & proceeds then this is recklessness and may be voluntary MS) b. Unlawful act (misdemeanor-MS) doctrine 1. assicental homicide occurring during commission of an unlawful act that is not a felony constitutes involuntary MS v. MPC- Negligent Homicide a. Committed negligentlyShould have been aware of he risk; inadvertent; objective (in CL Jx this is involuntary MS)

CAUSATION (usually in result crimes)

1) Is there a result element? Then you need to analyze cause 2) Cause in Fact (But For) i) Mens Rea (a) Causation w/o MR = No conviction (b) MR w/o Causation = No conviction ii) Multiple actual causes (a) D may be liable for accelerating a result (but for conduct, result would not have occurred where it did) (b) Concurrent causes- independent factors inflicting injury @ same time so must demonstrate that Ds conduct was a substantial factor & result would have occurred even w/o D2s act 1. People v. Arzon- D sets fire, D2 sets separate fire later. Court holds that Ds conduct need not be the sole & exclusive factor in Vs death. It is enough that his conduct was a sufficiently direct cause of the death & the ultimate harm is something reasonably foreseeable (ex firemen responding to fire could die) (c) Obstructed cause- D1 shoots V in stomach, while simultaneously, D2 shoots V 3 times in head D1 is charged w/ attempt, & D2 w/ murder b/c his was more effective & he thwarted D1s goal. 2) CL Proximate Cause

i) Direct Cause- an act that is a direct cause is also proximate ii) Analysis (a) Forseeable (objective standard) (b) Proximity how close in the chain is Ds conduct in relation to result (c) Efficient (was chain broken?) 1. Even if there is a direct cause, if the chain is ended and restarted by another, then it is not efficient 2. Interventions that would not have changed the outcome doesnt break the chain (medical malpractice doesnt create efficiency problems) 3. Efficiency chain can be broken by act of intervening Independent AND free willed agent or V i. (D provides V with a gun and encouraged him to kill himself, V is considered a free willed agent) ii. Assisted suicide D didnt actually act- V was a free willed independent agent iii. V based on curcumstances may not be considered independent & free willed (ex: police were pawns in Ds plan so werent independent, rape/kidnap/torture victim not free willed when she poisoned herself) 1. Intervening cause may break the chain 2. Superceeding causes D no longer poses imminent threat & V made bad decision 4. Commonwealth v. Root D&V drag race, V dies- Courts divided on whether D can be liable for Vs death, but unanimously will be liable if innocent victim dies

3) MPC Proximate Cause i) But-for causation is the exclusive meaning of causation ii) Instead of proximate cause, code focuses on issues relating to culpability (a) 2.03 (2) Purposefully/knowingly: Must be within purpose or contemplation of actor unless: 1. actual harm differs from what contemplated only regarding its extent 2. actual harm is what was intended and is not too remote (b) 2.03 (3) Recklessly/negligently: Must be within risk aware of or, in the case of negligence, risk that D should be aware of, unless: 1. actual harm differs from what contemplated only regarding its extent 2. actual harm is what was intended and is not too remote (c) If no mens rea element established, then causation is not established unless the actual result is a probable consequence of Ds conduct

ATTEMPT
1. Specific intent Must prove that D performed these acts with the specific intention of committing the target crime (a) e.g. D recklessly fires gun in crown. If someone killed, chargeable with murder (reckless disregard). However, if D kills no one, D cannot be convicted of attempt. She lacked the specific intent to kill. 2. CL Rule: when a person, with the intent/purpose to commit an offense, performs any act that constitutes a the final toward the commission of that offense (a) Final step- the only thing stopping the crime is luck or intervention (b) AR- must be an affirmative act tested against 1. Proximity i. Draw the line b/t preparation & attempt ii. Must be the final step at CL 2. Equivocality i. May disappear if there is clear evidence of intent ii. Prevailing customs & social norms are relevant in assessing (D goes to haystack to smoke- is this intent? Does he normally smoke or is this the 1st time? Is there a social norm of never smoking next to a haystack?) 3. Liklihood of success i. If there is little to no liklihood of success then no case ii. Ex: voodoo doll = liklihood, (c) Defense 1. Legal Impossibility no crime even if completed 2. Mistake of fact is not a defense- the acts if completed would constitute a crime b/ b/c of factors unknown to D there is no chance of completion of the crime 3. Abandonment is NOT a defense in CL 3. MPC Rule: criminal attempt occurs when a person acts w/ the type of culpability necessary for the crime AND must, with 1) the purpose to commit the target offense (AR) or know the result will occur as a consequence of his conduct, 2) conduct constituting a substantial step towards the commission of the offense. (a) Actions considered substantial step 1. lying in wait 2. searching for the victim 3. following the victim 4. seeking to entice the victim to go to the place of crime 5. reconnoitering the place contemplated for the crime 6. unlawful entry of a structure, vehicle or enclosure where intending to commit the crime 7. possession, collection or fabrication of materials to be employed

8. soliciting an innocent agent to engage in conduct constituting an element of the crime (b) Defense 1. Voluntary Abandonement not motivated by circumstances that increase risk of detention or increase difficulty in commiting the crime 2. Legal Impossibility no crime even if completed 3. Mistake of fact is not a defense- the acts if completed would constitute a crime b/ b/c of factors unknown to D there is no chance of completion of the crime 4. Exceptions (a) Felony murder no such thing b/c requires a death (b) Involuntary manslaughter- no such thing b/c involuntary is unintentional (c) Strict Liability crimes except statutory rape which can still be attempt (d) Negligence crimes

ACCOMPLICE LIABILITY
1) C.L. Rule:,
(1) Accomplice rule-, w/ intent that another engage in criminal conduct or cause harm, D while actually or constructively present provided assistance by act or omission or encouragement, during the course of crime that was completed whether or not such assistance was necessary or determinative (2) Accessory B/4 the fact - w/ intent that another engage in criminal conduct or cause harm, D provided assistance by act or omission that was at least minimally effective, or counseled, commanded, or encouraged the principal in a completed crime, whether or not that assistance was necessary or determinative (3) Accessory after the fact: knowing that P committed a crime and w/ intent that P evade detection, arrest or prosecution, D provided assistance, protection, aid, encouragement or succor to P, whether necessary or determinative (4) Natural and probable consequences doctrine an accomplice is guilty not only of the offense he intended to facilitate or encourage b/ also of any reasonably foreseeable offense committed by the person he aids & abets

2) MPC Rule: D is an accomplice if w/ the purpose of promoting or facilitating he 1) solicits another to commit it OR 2) aids, or agrees, or attempts to aid another in planning or committing it OR 3) has a legal duty to prevent the commission of the crime and fails to do so; AND 2) the mental state required for commission of the substantive offense i) MPC Uniqueness (1) REJECTS reasonable & foreseeable test (2) Often the mental state may be inferred from proving #1 (3) No requirement that the aider & abetter be effective (allows attempt to assist)

3) 4) 5) 6)

(4) May or may not impose liability if principal fails ii) DEFENSE (1) Renunciation (termination of complicity prior to commission of crime) 1. D must ensure that his assistance is ineffective or 2. give timely warning to law enforcement or make proper effort to prevent commission of the crime CAUSE No need to show cause Can be accessory to involuntary maslayghter if you intend that D2 engage in reckless acts that put other at risk of death or serious bodily harm. Mens Rea D must specifically intend that D commit the crime Justification even if D1 provides proper justification or excuse (ex. undercover law enforcement) it may not extend to D2 if there was an actual crime

Part of the Common Law (can charge also for Modern Approach (Statutes)- D crime principal crime can charge all of them) can only be convicted of 1- can charge all (under MPC, conspirator & accomplice, all the inchoate crime merge) Before Principle in First Degree perpetrator All are treated as principals. (The & During Aiding & abetting (accomplice) present distinctions are eliminated) the Crime - Treated as parties to the actually or constructively providing crime encouragement Accessory before the fact (not present) counseling, advising, directing before the commission After Accessory after fact (not Present) Some jurisdictions do not treat the crime protecting, receiving, comforting or them as principals (still call them concealing Accessory after Fact). - Far less culpable acts and intent than principals - No more than half the punishment - Not liable for principal crime

CONSPIRACY
1) C.L. Rule- Agreement b/t 2 or more people to commit a crime, or to accomplish a legal act by unlawful means (1) No overt act requirement (2) Specific intent- both parties must intend to agree & intend that the object of their agreement be achieved (3) Purpose may be inferred from knowledge (see #3 below) (4) Pinkerton liability- Once D enters a conspiracy, he is vicariously liable for all the substantive offenses as long as it is 1) reasonably foreseeable given the nature of the offense AND 2) done in the course of the conspiracy AND 3) done in furtherance of conspiracy. 2) MPC Rule D is guilty if w/ the purpose of promoting or facilitating its commission, he makes agreement (AR) to 1) commit an offense, 2) attempt to commit an offense 3) solicits another to commit an offense, 4) aid another in planning or commission of the offense (1) Agreement may be direct or inferred from circumstantial evidence (2) MPC requires and overt act for conspiracy to commit a misdemeanor or a 3rd degree felony; There is NO overt act requirement for 1st & 2nd degree felonies (3) ***MPC REJECTS Pinkerton Liability*** (4) MPC rejects Whartons rule (5) D only liable for what he actually knew (6) Defense 1. Abandonment 3) Intent may be inferred from knowledge when (1) D has stake in venture (2) there is no legitimate use for the goods or services (3) the volume of business w/ buyer is grossly disproportionate to any legitimate demand (4) sales for illegal use amount to a high proportion of sellers total business (5) ** You need more than knowledge for misdemeanors** 4) EXCEPTION (1) D is not guilty of conspiracy if 1. if he would not be guilty of the cosumated offence as wither a principal or an accomplice 5) Types of Conspiracy (1) hub & spoke 1. One person in middle transacting w/ othere 2. There must be a rim connecting all parties for it to be complete 3. w/o rim you have multiple conspiracies (2) Chain Conspiracy (3) Pyramid

JUSTIFICATIONS & EXCUSES

1) Effect: Both work similarly in procedural terms and lead to the acquittal of Defendant. a. Note: In both instances, D has engaged in all the conduct, possesses the state of mind, and caused the harm necessary to commit crime. Justification Excuse Act the act socially Actor the act is harmful to beneficial or useful. society but the actor is not blameworthy (focus on Ds mental state) D is found to be not Even if D is culpable, D is culpable forgiven Self-defense, defense of Cultural defense, insanity, others intoxication

Focus

Culpable Examples

2. State v. Smith: Even if not requested, jury should be instructed on justification if it is the sole defense AND supported by evidence a. Strict liability: Justification can be defense for strict liability crimes -- D was charged for a strict liability crime (failure to maintain lane and DUI) b. Burden of proof: D has to introduce some evidence, but it is not clear which party has the burden of persuasion 3. Justification of discipline cannot be claimed when pain and suffering caused exceeds the bounds of reasonable discipline a. Intentional mistreatment: Spanking with a belt that caused severe bruises exceeded reasonable discipline, and D intentionally caused the pain and suffering b. Dissent: The kid was about to flunk school twice and the punishment emphasized the importance of education. The conduct does not constitute criminal activity (intent to cause harm is missing) c. Note: (1) moral judgments come into play in determining justifications (2) hard to distinguish between intent to discipline and intent to cause harm 4. People v. Romero: A pure cultural defense is not an excuse under the objective standard a. Cultural Defense: Expert testimony that D was acting under the codes of Hispanic culture and street fighting customs (he was expected to act in the way he did) was irrelevant i. Strong Motivation: The motivation to protect younger brother does not explain the use of deadly force b. Objective Reasonableness: Cultural defenses are not admissible because that would create multiple standards very hard to administer c. Self Defense: The court nevertheless uses the self defense analysis and finds that cultural defense does not show that D was actually scared

d. Policy Question: Should the cultural defense be taken into account? (It is possible that under the honor code D is refusing to admit that he was scared). Note that the subjective element of self defense can be a backdoor to cultural defense to some extent (identify this tension on the exam)

SELF DEFENSE (Justification)

1) When to use: D charged with an assaultive crime may assert in defense that she reasonably believed that her actions were necessary to defend herself against an apparent threat of unlawful and immediate violence from another. i) Effect: If successful, the D is entitled to complete acquittal ii) Incomplete defense: In murder cases if D killed under an unreasonable belief or used unreasonable amount of force, D is convicted of manslaughter rather than murder (only the malice required for murder is negated) 2) Burden of Proof: a) Production: D must introduce some evidence b) Persuasion: P has the burden to disprove BRD (under old common law D had the burden of persuasion used in a minority of states only). 3) C.L. Rule- a person who is not an aggressor is justified in using force against another if he reasonably believes that the force is necessary to protect himself from imminent use of unlawful force by another (1) Deadly force is unjustified unless the actor reasonably believes that its use is necessary to prevent imminent & unlawful use of deadly force. 1. Deadly force- force likely to kill regardless of intent (2) Factors: a) Necessity, b) proportionality, c) subjective reasonability (3) Aggressor: one who starts a nondeadly unlawful conflict 1. some courts say if nondeadly aggressors V responds w/ deadly force, then initial aggressor regains right to self defense 2. other courts require initial aggressor to retreat (4) Defense of 3rd party- right to use force parallels 3rd partys right to self defense (act at own peril) (5) Defense of Property- A person cannot use deadly force simply to protect his property against unlawful entrance, even if there is no other way to prevent the harm 1. nondeadly force may be used 2. force is not reasonable unless prior request to desist has been made 3. may not use force to regain property except in hot pursuit (6) Mechanical device intended to protect property by causing harm may be used where intrusion is such that if the person were present would be

justified in taking the life or inflicting bodily harm w/ his own hands. (threat of death or serious body harm) (7) Law enforcement- only use deadly force to prevent a crime if he believes 1) substantial risk of death or serious body injury to officer or others exists unless if prevented and 2) the force is necessary to make an arrest or prevent escape. 1. can never use deadly force to prevent a misdemeanor arrest 2. can use nondeadly force to prevent a crime is force is necessary to prevent to crime or to make an arrest. (8)

4) MPC Rule- D is justified in using force if he believes (subjective) the force is immediately necessary to protect himself against the exercise of unlawful force by another (1) Deadly force- justified only if necessary to protect on the present occasion against 1) death, 2) serious body injury, 3) forcible rape, 4) kidnapping (2) Defense of 3rd party may use deadly or nondeadly force to the extent that such force reasonably appears to the intervener to be justified in defense of the 3rd party. (*** but you do so at your peril.. if the aggressor turns out to be a justified police officer, you may be convicted***) (3) Defense of property- D may use nondeadly force to prevent trespass on land or theft of property if he believes 1) the persons interference w/ property is unlawful, the intrusion affects Ds property, and 3) nondeadly force is immediately necessary 1. Force is not immediately necessary unless request to desist has been made 2. may not use force if you know it would put other at substantial risk of serious body injury (ex. moving car) 3. Deadly force prohibited except if he believes the intruder 1) is trying to disposess him of his dwelling, 2) has no claim of rightful possession, & the force is necessary to prevent dispossession (does not authorize deadly force solely to prevent unlawful entry into home) 4. Deadly force may be used he believes that 1) arson, burglary, robbery or felonious theft of property is imminent, 2) such force is immediately necessary AND either 3a) the person previously used of threatened to use such force against him or another or 3b) use of nondeadly force would expose him or others to substantial danger of serious bodily injury. (4) If D start unlawful nondeadly conflict, he doesnt lose priviledge to self defense (5) Mechanical device intended to protect property by causing harm is prohibited (6) Law enforcement or private person- only use deadly force to prevent a crime if he believes 1) substantial risk of death or serious body injury to

others exists unless if prevented and 2) use of deadly force poses no substantial risk of injury to bystanders. 1. can use force to prevent a crime is force is immediately necessary to prevent to crime. 2. See outline in folder for the rest 5) Retreat (1) Some courts say no retreat & allow V to use deadly force (2) Some courts say V must retreat if he can do so safely (3) Castle exception: V has no need to retreat if attack is in own home 6) Reasonable belief standard (1) Reasonable person in Ds situation (Subjective in MPC & Objective in CL) 7) Battered womans syndrome i) Prior abuse ii) Expert testimony- may be allowed iii) Imminence of threat speculative belief about remote or inevitable harm is insufficient

NECESSITY (JUSTIFICATION)
. 1) C.L. Rule: D is justified in violating the law if these conditions are met (multifactor) (1) D is faced w/ clear & imminent danger (not speculative) (2) There is a direct link b/t his action and the harm to be averted (direct v. indirect civil disobedience) (3) There is no effective legal alternative (4) The harm caused by the crime is less serious than the harm averted (5) The legislature must not have considered the choice of 2 evils and obviously opted for one as opposed to the other (ex. D illegally possesses marijuana for medical purpose, still convicted) (6) D did not place himself in the peril (7) May justify homicide 1. Limitations i. Some jx limit it to emergencies created by natural forces ii. D may not take life of another to save himself iii. If duty is owed (ship captain) may not kill to feed others iv. May be limited to protection of people & property, not reputation or economic interests 2) MPC Rule- Ds conduct is justified if

(1) He believes his conduct is necessary to avoid harm to himself or another AND (2) The avoided harm is greater than harm from the crime AND (3) No legislative intent to exclude the conduct exists 1. Differences w/ C.L. i. No immediacy requirement ii. Dont lose defense if you created the peril negligently or recklessly (reduces the crime to level of culpability ex: negligent homicide) iii. It may be used for homicide & not limited to property

DURESS (excuse)
1) C.L. Rule 5 elements must be present (not defense for murder) (1) Another person threatens death or serious body harm (deadly force) to D or 3rd party (relative) (2) D reasonably believed threat was genuine (3) Threat was present imminent & impending @ time of criminal act (4) There is no reasonable escape except through compliance with the demands (5) D did not cause the peril 2) MPC Rule Duress is a defense if (can use for murder) (1) Unlawful force or threat of force to D or another person AND (2) A person of reasonable firmness in Ds position would be unable to resist the force 1. Not available in D recklessly placed himself in a situation where it was probable that he would be subject to such coercion 2. If D negligently places self in the situation then the defense is available for all offenses except those which the MR is negligence 3. Note: i. no deadly force threat or imminence required ii. may be used in murder iii. no requirement that 3rd party be a relative

INTOXICATION
In-voluntary Intox. Common Law MPC - Complete Defense when so affected the D - 2.08(1): Must negative an as to render her insane w/in the insanity test element of the offense (A/R, in the jurisdiction (Miller) M/R, or A/C). - 2.08(4): Pathological is - Involuntary if (1) D did not know that the involuntary grossly excessive ingested substances was intoxicating (2) in proportion to the amount consumption under duress consumes and the D did not know that she was unusually - Strict Liability: Such crimes are covered susceptible - Strict Liability: Such crimes are covered Voluntary Intox. - M/R: Can negate only a specific intent if one is required by the crime (ex: premeditation) - No excuse in general intent crimes (ex. - 2.08(1): Must negative an element of the offense (A/R, M/R, A/C). - unawareness of risk due to - Strict Liability: Not clear perhaps not

recklessness) except if it is to the level intoxication is immaterial where it voids AR (ex brain damage)
- Strict Liability: Not included

1) Involuntary Intoxication (1) Might allow an excuse if it negates MR even if low level of MR

INSANITY
1) Culpability is either eliminated or mitigated a) Distinguish diminished capacity: Insanity does not show that D lacked the M/R for the underlying crime. It shows that D lacked the basic capacity to engage in morally reprehensible conduct failure to understand surroundings or control his conduct 2) 3) 2 tests i) MNaghten Test (cognitive) (i) All Ds are presumed to be sane so must prove that: (ii) at time of commission (iii) the party was laboring under such a defect of reason (iv) from disease of the mind (no physical damage only cognitive, not anger) (v) which rendered him incapable of know a) the nature & quality of what he was doing (ex. D thinks he is squeezing a lemon when in fact he is squeezing his wifes neck) OR b)not to know that what he was doing was wrong (ex. believed V was harboring evil spirit) ii) Durham act was a product of mental defect (not typically used) (i) D will at least be partially excused if 1) his offense was the product of the mental disease or defect iii) Irresistable impulse (volitional) (i) Ds are presumed sane, however a D will be at least partially excused if (ii) 1) at the time of the offense 2) he acted from an irresistible & uncontrollable impulse; 3) Produced by mental illness or defect. 1. ex: D has an irresistible urge to kill his wife (not a defense in Mnaughten standard b/c D knew what he was doing & intended to do it) iv) MPC- Cognitive & volitional (i) A person is not responsible if @ time of conduct as a result of the defect, he lacks substantial capacity to appreciate the wrongness of his conduct(cognitive) or to conform his conduct to the requirements of law (volitional) (ii) Volitional arm also encompasses affective disorders- where D is aware of what he is doing, aware that is wrong b/ doesnt care as a result of his mental disease ex psychopaths

i. Psychopaths cannot use the defense ( 4.01(2): an abnormality manifested only by repeated criminal or otherwise antisocial conduct) ii. Intoxication: Repeated intoxication cannot be a disease for the purposes of this section

RAPE
1) C.L. - (1) Carnal Knowledge + (2) Woman (not wife) + (3) Forcibly + (4) Against her will + (6) Corroboration + (7) Prompt Reporting 1. Was there carnal knowledge (intercourse)? Slight Penetration is enough; emission is not necessary. 2. Is the Victim a Woman and not wife? a. Check: Accomplice to wifes rape: Can be convicted for rape b. Identify: Modern statutes may recognize the rape of a wife under certain circumstances 3. Was it Forcible? a. Traditional Approach: Signs of utmost resistance were helpful in establishing the forceful and lack of consent elements. Some jurisdictions may require proof of resistance. a. Modern Statutory Trend: It is not required that defendant uses force to overcome victims ability to resist. 4. Was it against Victims will (lacking effective consent)? a. Any threats? Consent obtained by fear of great and immediate bodily harm to her or another is not real b. Was Victim incapacitated? Intoxication, mental deficiency, or insanity c. Was the victim defrauded? i. In factum: D deceives the victim into believing that the act involved something other than intercourse (nature of the act) There is Rape ii. In inducement: fraud as to the reasons why she should consent to sexual intercourse does not invalidate consent. No Rape iii. As to whether the defendant is husband? The jurisdictions are split. d. Was consent withdrawn? Split in jurisdictions i. There is rape when the withdrawal is communicated to the male and he therefore ignores it ii. When consent is withdrawn during intercourse, D is not guilty of rape (he can be guilty of another crime though). a. MPC: ??? 5. Additional Elements? (1) Corroboration (2) prompt reporting.

Mens Rea: Not clearly defined (usually treated as a general intent crime). Whether the D must be aware that the act is being performed against the will of the woman or negligence would suffice? Defenses: D believed that victim consented. If evidence shows that there was no consent, the question is whether mistake of fact is a defense. i) Reasonable Mistake of fact: several jurisdictions require that (1) D honestly and in good faith had such a belief (2) the factual mistake was objectively reasonable ii) Unreasonable Mistake: Can be sufficient if actual knowledge of lack of consent is needed. American courts are reluctant to adopt this approach. 2) Statutory Rape: Intercourse with a victim under the age of consent is rape (usually by statute) a) Age: varies with jurisdiction b) Awareness of victims age: not necessary. This is usually a strict liability crime even a reasonable mistake of fact is no defense. i) Note: Some jurisdictions may allow this defense c) Lesser Charge: Usually statutory rape is a lesser charge of rape

LARCENY/ BURGLARY / THEFT

Larceny Rule: (1) Trespassory (unlawful) Taking and (2) Carrying Away of (3) Personal Property (4) of another person (5) with intent (MPC is purpose) to steal. Robbery: Larceny + (1) property must be taken from the victims person or presence and (2) taking must be accomplished by means of force, violence or intimidation

Burglary: (1) Breaking and Entering of the (2) dwelling house of (3) another in the (4) nighttime with the (5) intent to commit a felony therein.

PUNISHMENT
A. 3 General Principals limit the distribution of punishment in the Criminal Justice system, they are: a. Culpability To safeguard conduct that is without fault from being criminal b. Legality Fair warning c. Proportionality Do the rules match the level of punishment appropriate with the level of blame B. Principles of Evidence Evidence is relevant is it is probative and material a. Probative Is the crime more likely to be true based on the evidence? b. Material will the evidence affect the outcome of the case? c. Relevant evidence may not be admissible if it is under d. privilege privilege against self incrimination, or e. prejudicial- will it affect result improperly, will it arouse undue hostility? 1) Cruel and Unusual Punishment (8th Amendment) 1. Generally: The Eighth Amendment prohibits against cruel and unusual punishment and it is binding on the States through the 14th Amendment. a. Two legs of the analysis: (1) the punishment is inherently impermissible (2) proportionality 2. Disproportionate Penalties: Some penalties that are not inherently cruel and inhuman are prohibited nevertheless because they are so grossly and outrageously disproportionate to defendants conduct a. Test One: Solem v. Helm (SC) To assess whether a punishment is cruel and unusual for being disproportionate, three factors are considered i. Gravity of the offense and the harshness of the penalty ii. Sentences imposed on other criminals in the same jurisdiction iii. Sentences imposed for commission of the same crime in other jurisdictions. b. Test Two: Ewing v. California (SC) Three strike rule is not unconstitutional i. Holding: Nothing in the Eighth Amendment prohibits California from using the law to protect public safety by incapacitating repeat offenders. 1. Rationale: States have a valid interest in deterring and segregating habitual criminals. The harsher penalty is appropriate in dealing with those who are simply incapable of conforming to social norms i.e. those who cannot be rehabilitated. Incapacitation and deterrence are legitimate goals to punish with the rule. ii. Note: Justices do not agree how the concept of proportionality is to be applied. There are two approaches that exist in tension.

1. Solem: Case by case approach (Favorable to Defendant) 2. Ewing: A bright line test looking at the law itself (Favorable to Prosecution) 3. Death Penalty: a. General Rule: Not inherently excessive and may, pursuant to a proper procedure, be imposed on a defendant and carried out i. Note: The prime punitive goals are retribution (depends on culpability) and deterrence b. Can be Disproportionate: Supreme Court has held that death penalty can be excessive and hence violate the Eighth Amendment i. Mentally impaired offenders Atkins v. Virginia 1. Holding: The execution of the mentally retarded is cruel and unusual punishment. ii. Young Murderers under 18 Roper v. Simmons 1. Holding: Eighth Amendment prohibits the imposition of the death penalty on all offenders under 18. 4. Punishing for Status or condition: Robinson v. California (SC) a. Holding: A California law that makes it a criminal offense to be addicted to narcotics iS a cruel and unusual punishment and violates the 8th Amendment. i. Rationale: Narcotic addiction is like an illness that may be contracted innocently or involuntarily (similar to being mentally ill or a leper). State may require mandatory treatment of the illness, but it cannot punish individuals for being sick. Graver violation of the 8th Amendment if Defendant did not use drugs within the state. 5. Mitigating and Aggravating Factors: These factors are taken into account to determine whether the sentence given is too excessive a. Death Penalty: Constitution Projects Death Penalty Initiative has recommended the reservation of the punishment for five scenarios i. Murder of peace officer on duty ii. Murder occurring at a correctional facility iii. Purposeful or knowing murder of two or more iv. Intentional murder of a person involving the infliction of torture v. Murder by a person charged or convicted of a felony of anyone involved with the criminal proceedings b. Victim Impact Statements: Victims and family members (in case of murders) are permitted to speak at sentencing i. Permissible: VIS is relevant in determining a defendants blameworthiness, and is not barred by the Eighth Amendment (Payne v. Tennessee SC decision) ii. Scope in murder cases: Crawford v. State (Missouri Case) 1. Holding: The quick glimpse rule should be limited to specific details concerning whether the victim left dependents, parents or sibling.

a. Rationale: Details of defendants good virtues or particularized sufferings of victims survivors are irrelevant and may incite the jury to make an arbitrary and emotional decision. The goal is merely to establish victims identity and verification of survivors who are reasonably expected to grief and suffer. b. Due Process: Although 8th Amendment does not prohibit VIS, there can still be Due Process concerns (identify the tension on the exam). iii. Problematic: Why have such statements in the first place? Why differentiate among victims to determine sentencing? Shouldnt all lives be weight equally? Should D be allowed to introduce impact statements? 1. Note: Criminal law punishes on behalf of the society. Therefore, VIS may be appropriate the social loss and harm caused by the Defendant.

III. Due Process Prohibition Against Vagueness / Fair Warning 1. Notice: (1) The Due Process Clause requires notice that people can tell whether the anticipated conduct will be criminal by examining the statute. (2) Sufficient preciseness to discourage arbitrary enforcement or punishment procedural violation of due process. 2. Facial Vagueness: No objective standard of conduct is specified at all (Very broad challenge) 3. Ignorance of Law: Lambert v. California a. Facts: California has a statue: Unlawful for any convicted person to be or remain in LA for more than five days without registering. b. Holding: Notice requirement under the due process clause dictates that for a conviction of failure to registration to stand, the defendant had (1) actual knowledge or there is (2) proof of the probability of knowledge and subsequent failure to comply. i. Rationale: The court read knowledge requirement in this strict liability statute because (1) status is involved (2) an omission is criminalized (3) possibility of ensnaring innocent (4) strict liability crime. 4. Vagueness as to punishment: Can such challenges take place? a. Note: If two statutes criminalize the same conduct and give different sentences, the statutes are not vague. They merely define the recommended range of sentence. IV. Other Constitutional Limits

1. Ex Post Facto: Such laws (after the facts i.e. retroactive application of laws) are manifestly unjust and oppressive, and thus are prohibited by the Constitution. 2. Bill of Attainder is Not permitted: A bill of attainder is special legislation that declares a specific person to be guilty of a crime and subject to punishment without either a trial or conviction. 3. Double Jeopardy: The Constitution provides that a defendant may not be put twice in jeopardy for the same offence (Fifth Amendment). Therefore, repeated prosecutions for the same or related crimes are prohibited. a. Note: If a defendant is found not guilty of a charge, government may not purse second proceedings no matter how strong its newly found evidence is. i. Dual Sovereignty Doctrine: A different state or federal government may prosecute a person for the same crime so long as there is jurisdiction over the defendant.