Laurie Wilson

Criminal Law Outline - Arenella

Punishment Theories
Utilitarianism
Theory of Punishment:
Provides future benefit to society (net social gain)
Evil because it infringes on individual liberty
Justified when social benefit outweighs cost to and the state
Purposes of Punishment:
Expressive function: affirm and strengthen community moral
norms; voice social disapproval
Lawrence v. Texas: giving symbolic affirmation to what is
morally despicable behavior in a particular majority/state
General deterrence
Specific deterrence doesnt serve society in general
Incapacitation: prevent future danger to others or property
Gradation
Voluntary act doctrine
Cant deter something that people have no control over

Retributivism
Theory of Punishment:

Morally culpable person deserves to punished for

wrongdoing

Must be culpable agent (gives rise to insanity defense)

Requires proportionality
Purposes of Punishment:
Just deserts for those engaging in criminal conduct (but we
dont criminalize all morally reprehensible activities)
Vengeance

Voluntary act doctrine

must be accountable for his act before he should be punished
and be given chance for renunciation
Criticisms of Utilitarianism and Retributivism
Utilitarianism justifies the punishment of an innocent person
Retributivism is founded on emotions rather than reason

Differences between Utilitarianism and Retributivism:

Retributivism looks backward and justifies punishment based
solely on the basis of the voluntary commission of a crime
Utilitarianism looks forward, valuing overall social benefit
Utilitarians believe that humans are generally rational hedonists;
Retributivists believe that humans possess free will and can justly
be blamed when they choose to violate societys mores
Core concepts

Legality principle: concern that decision to criminalize be done by democratically accountable body that defines conduct
prospectively to give citizens fair warning as to when behavior might trigger coercive state sanctions; concern about limiting discretion
of law enforcers

Institutional competence: courts cant overrule legislature

Concurrence principle: must have M/R at same time as A/R (not before only; not after only)

Attendant circumstances: inclusion of relevant factual circumstances under which conduct occurs (burglary: shouldnt
break/enter what, when to specify under what circumstances the crime occurs)

Mens rea: interpret actions in light of actions knowledge, purposes and goals; mental states are critical to fully define what is
being deterred, what is dangerous and what is culpable

Culpability (M/R) AND wrongdoing (A/R, A/C, Result)

Causation: fair to attribute the result to the s actions, w/o intervening event

AFFIRMATIVE DEFENSES

Excuse: negates s culpability; wrongful act, but no culpability

Justification: negating wrongfulness even though objective elements of crime and mental states have been satisfied

Necessity: choice of lesser evils, judged objectively

Insanity: Addresses the question of whether there is a moral agent, committed acts but lacks moral blameworthiness

Duress: Assumes we have a moral agent, but not fair to attribute wrongful act to agent because there was coercion that
prevented him from complying with the law

PARTIAL AFFIRMATIVE DEFENSES

Provocation: gradation

EEMD: makes distinctions as to degrees of culpability and degrees of dangerousness

Moral culpability: fair to impose moral blame on the offender; wrongful act alone is not enough (see: insanity, duress)

Accomplice liability: more than one person can be held accountable for the wrongful act

Attempt liability: recognition that even when result hasnt occurred, an actor might show sufficient culpability and
dangerousness toward the criminal offense
TEST
Policy question: dealing with criminalization or grading decision?
Ex: abolishing provocation/EEMD
Statute-writing: include both culpability and wrongdoing elements

Lambert: unaware of new requirement that felons register with LAPD; affirmative defense allowed for s omission of failing to
register (fair warning rationale: must be aware of facts triggering duty to act) (unlike Intl Minerals being present in LA for 5 days
alone is not criminal)
Russian Roulette hypo: demonstrates extreme reckless indifference to the value of human life

Laurie Wilson
Criminal Law Outline - Arenella

Components of a Crime
Common Law
Mental State

Specific Intent: intent to do the particular act

Subjective standard
Ex: Holloway v. US: Ct found that carjackers threat was
sufficient to prove specific intent to cause bodily harm

General Intent: inferred just by the commission of the act

Subjective standard
Created to mitigate degree of liability/punishment but not
exonerate (specifically, to address drunkenness)

Strict Liability: act alone is sufficient

Objective standard
Created to address public welfare crimes (low penalty, low
stigma, but creates higher standard of care over time
Ex: State v. Guminga: Sale to a minor was a strict liability
crime; ct charged ER with vicarious liability, but was
acquitted b/c it was based on strict liability
Affirmative defense: involuntary act/omission
State v. Kremer: brakes failed so didnt stop at red light
State v. Baker: cruise control failed; opened timeframe
State v. Miller: drink laced; ignored affirmative defense
Malice: reckless disregard of serious risk that harm will result
Subjective standard
Ex: Regina v. Cunningham: stole gas meter but did not
foresee a risk of death
When to read in CL
Mala in se: if codification of a traditional CL crime, ct will
read in traditional CL M/R
Mala prohibitum: public welfare crimes, however if it has a
high penalty, may read in reck/neg

MPC (2.02)
Mental State (M/R must go to all objective element of the crime)
Purpose: s conscious object is to do a particular act or cause a
particular result; is aware of the existence of A/C or believes/hopes
they exist
Subjective standard

Knowledge: knows or is aware to a practical certainty that his

conduct will cause a particular result
Subjective standard
Wilful blindness
Ex: US v. Jewell: ignored presence of mari in the trunk;
conscious purpose to disregard criminal nature
Aware of a high probability that fact exists

Recklessness: is aware of and consciously disregards a substantial

and unjustifiable risk (default)
Subjective standard
Substantial risk determined by:
Probability of risk occurring
Social utility of the conduct generating the risk
Severity of the harm

Negligence: failed to appreciate a substantial and unjustifiable risk

that a reasonable person would have appreciated
Objective standard
Ex: Regina v. Faulkner: unaware of risk of fire
Gross negligence: gross deviation from standard of care that a
reasonable person would observe in the actors situation
How does MPC handle specific intent

Concurrence principle: intent has to be in mind during the act

proscribed

Bramwell and Brent

Vicious will

Culpable choice to ignore comm. moral norms (Bramwell)

Culpable choice to ignore legal norm (Brett)

Regina v. Prince: had no M/R going to A/C under 16;

Bramwell held that it was wrong to take a girl from her parents
Actus Reus

Voluntary act: voluntary bodily movement (People v. Decina: opened up time frame to show epileptic performed voluntary act)

Involuntary act: reflex, convulsion, unconsciousness/sleep, hypnosis

Possession: knowingly procured/received, when actor is aware of his control for long enough to have terminated possession

Omission: (1) there is a duty to act, (2) knows of the circumstances triggering the duty to act, (3) reasonably could perform the duty
Duty to act can arise from:
(1) Statutory/CL imposition of legal duty (homeowner/guests)
(2) Contractual (babysitter)
(3) Special relationship between and V (parent/child)
(Ex: Cmnwealth v. Konz: Wife failed to get medical assis. for diabetic husband; but V was free agent who chose not to take insulin)
(4) Because created the peril
(Ex: People v. Oliver: gave V spoon to take drugs)
(5) s voluntary assumption of duty and seclusion of V from others
(Ex: Pope v. State: took in mother/child, however mother was present; Oliver: removed V from public)
Policy concerns re: omissions:
Less culpability: usually not causally responsible in same way as positive actor
Autonomy/libertarian values: law is more interested in deterring positive acts, not s who bear no real responsibility (indiv. freedom)
Who to prosecute: as in Kitty Genovese case, with a large pool of omitters difficult to draw the line as to who to prosecute
Vagueness/fair warning/legality concern: can only charge where there is a legal duty
Why require A/R in addition to M/R

Empirical: establishes critical facts that are relevant to s degree of culpability

Autonomy: state cannot intervene until has acted (cant punish thoughts)

Deterrence: allow opportunity for to act, with possibility that they might be deterred before acting

Moral culpability: lower culpability for desire only

Laurie Wilson
Criminal Law Outline - Arenella

Causation
Necessary cause: but for the s conduct, the result would not have occurred when it did
Sufficient cause (direct cause): but for the s conduct, the result would not have occurred when it did, and in the manner it did
Proximate cause: looks at foreseeability of the harm occurring in the manner it did
Causation is established when:
(1)
But for test: But for s criminal conduct, would the result have occurred when it did? (necessary cause test)
Rare exception: 2 people shoot a V simultaneously; they are both convicted
(2)
Intervening event: what was the intervening event? (stop here if intervening actor broke the causal chain; keep going if
intervening actor was only reck/neg as to the result (Feinberg, McFadden))
(3)
Proximate cause (foreseeability): was intervening event (particular manner of harm) a reasonably foreseeable response to s
criminal conduct? (objective analysis, do not look at s M/R going to the result)
Breaking the causal chain:
Free and knowledgeable action: breaks the causal chain (ex: Campbell: although hoped that V would use the gun, V acted intentionally)
Autonomy principle: recognizes when V is the intervening human actor and is deliberately trying to cause the result (Kevorkian, Konz)
Impaired agency: if V acted under emotional/mental distress, is not autonomy and does not break causal chain (Feinberg, Stephenson)
Omissions
Proximate cause analysis is particularly important when dealing with an omission
Atencio: failing to stop friend from playing Russian roulette that resulted in death ( showed ERI)
Welansky: failure to provide exits resulted in death in the fire ( showed ERI)
MPC Differences
Includes culpability analysis in proximate cause analysis; must have required culpability for result (for death, ERI at minimum)
If strict liability, actual result must be probably consequence of actors conduct
Case

s Criminal
Conduct

Intervening event/action

Proximate cause analysis

Culpability (MPC)

Acosta

High-speed
pursuit

Gross negligence of
helicopter pilot

(1) But for satisfied

(2) Crash was fore. outcome - yes

Kibbe

s robbed V; left
him on the hwy;
called police to
notify of Vs
locat.
5th fl arson

V killed by passing car

(1) But for satisfied (necessary

cause satisfied, but not sufficient
c, because it was another driver)
(2) Acc. was fore. Outcome - yes

wasnt reckless because he didnt appreciate

the risk of a heli crash (making it a FOP
defense), however ct should have asked
whether he appreciated the risk of death
had ERI to the value of human life: 2nd degree
murder

Independent 2nd fl fire; ff

died en route to 5th fl b/c
smoke

Welansky

Failure to
maintain fire exits

Boston nightclub fire

Kevorkian

Assisted suicide

Vs suicide

(1) But for satisfied

(2) Prox. cause satis.: s fire was
an indispensable link in the chain
of events and placed V in
vulnerable position (however
vulnerable is but for test) - yes
(1) But for satisfied
(2) Prox. cause satisfied: fire was
a fore. outcome of overcrowding
(1) But for satisfied
(2) Prox. cause satisfied (suicide
machine)

Feinberg

Store owner sold

industrial sterno

32 people died from

methanol poisoning

Tests met

Stephenson

held V hostage;
starvation, rape

V committed suicide

(1) But for: assault and rape are

crim conduct
(2) Prox. cause satisfied (death
was natl/prob cause of unlawful
treatment, partly based on 1930s
moral standards) - yes

Root

Dragracing

V tried to pass and had

accident

McFadden
(right)

Dragracing

V tried to pass and killed

himself and bystander

(1) But for satisfied

(2) Prox. cause not satisfied
because V was intervening actor
(1) But for satisfied
(2) Prox. cause satisfied; V did not
breaking causal chain b/c he was
reck/neg to result

Arzon

had ERI, given the location (occupied bldg in

city), and must have been aware of possibility
that ffs would respond and risk their lives in
the course of rescue
had ERI, given his failure to keep up to fire
regulation code, and that fire regs protect
patrons safety
Autonomy principle: must respect Vs agency
in wanting to commit suicide (dont respect
autonomy if (1) not choosing to die, (2) has
impaired agency, like alcoholism)
Dont respect autonomy principle if Vs are
alcoholics; was reck/neg in providing means
by which Vs might hurt themselves
Vs autonomy not considered, since she had
impaired agency (mentally irresponsible)
Ex: of felony murder causation analysis;
has culpability for death b/c FMR (otherwise
rape/assault doesnt show culpability for death);
FMR requires that death occurred during felony
(cant suicide 3 mths later)
Autonomy principle: V was an intervening
actor and broke causal chain; ct says unlike
torts, which would allocate loss to 2 people
was culpable for death (neg or reck); policy is
served by punishment (deterring dangerous
activity) so Root got it wrong

Laurie Wilson
Criminal Law Outline - Arenella

Attempt (specific intent crimes)

1. Completed attempt: does all conduct necessary, but A/Cs not present (require belief that A/Cs existed)
2. Inchoate crime: Result hasnt occurred, or cant prove causation (Dlugash)
3. Incomplete attempt (focus on Att A/R: substantial step, dangerous proximity)
Target Crime
For both CL and MPC, must show:
ATTEMPTED ASSAULT
Culpability for criminal conduct
Some courts allow attempted assaults
Any independent mental state (ie: specific intent)
Some say its an attempted crime (what intent was)
A/Cs for target crime (if not present, must show s belief that A/Cs are present)
(otherwise are criminalizing desire, not conduct)
M/R A/Cs for target crime
FMR FOR ATTEMPT
M/R A/R
Murder during attempt IS FMR (most places)
M/R Result
Attempted murder cant invoke FMR
MPC substitutes reckless where silent
Attempt Crime
Common Law
MPC 5.01
Att M/R
Att M/R
Specific intent/purpose to complete criminal conduct element

Purpose or belief going to result

If no result (type #2), must show purpose to complete criminal

If no result (type #2), purpose to complete criminal conduct

conduct
Att A/R
Att A/R

Under circumstances as believes them to be, a substantial step

Acts must come dangerously close to completion of target crime

toward completion of the crime to corroborate criminal purpose
(beyond mere preparation), measured by:
Substantial step is strongly corroborative of criminal purpose if:
Dangerous proximity (how close has come)
Lying in wait
Physical proximity
Enticing or seeking to entice victim to crime scene
Indispensable element
Reconnoitering the crime scene
Probable desistance
Unlawful entry of structure, vehicle or enclosure where
Abnormal step
contemplated crime will occur
Unequivocal act
Possession of materials for crime w/o lawful purpose
Conduct must unambiguously manifest criminal intent
Possession, collection or fabrication of materials for crime, at
Point of no return
or near crime scene, w/o lawful purpose
Last indispensable act
Soliciting an innocent agent to engage in conduct constituting
an element of the crime
Defenses
Legal impossibility: no crime exists (legality principle)
Defenses
No firm M/R A/R or Result (FOP defense)
Legal impossibility: no crime exists (legality principle)
Voluntary renunciation of criminal purpose: affirmative defense if
Abandonment: defense if it negates element of the crime (FOP)
abandoned without intervening event or mere postponement
Does not recognize:
Does not recognize:
Voluntary renunciation: because dangerous proximity/point of
Factual impossibility: if believes crime was committed, and the
no return is very generous
crime actually exists, then is guilty (no accomplice)
Factual impossibility: because still has guilty M/R
Policy: Identify and convict morally culpable and most dangerous
Policy: Identify and convict morally culpable and most dangerous
Give individuals an incentive to change their minds and desist before Allow police intervention before target crime is consummated
(weakened Att A/R requirement, so heightened Att M/R req (purpose))
completing crime (requires significant A/R)
Affirmative defenses:

Necessity: chose to do a lesser evil, however doesnt apply if legislature weighed and made conduct illegal

Duress: coercion by human agent

Voluntary renunciation of criminal purpose

Mistake of law
Failure of proof defense:

lacked M/R going to some element, or some element was not present
Terms and cases
Completed attempt: performs all acts but fails to attain the criminal goal
Inchoate attempt: punishable before reaches intended result
Incomplete attempt: Does some of the acts necessary to achieve the goal but either desists or is prevented from continuing
Legality principle: no conviction if the conduct is not a crime, even if thinks it is
Smallwood v. State: HIV rapists charged with attempted murder; however didnt have specific intent to kill (lacked M/R)
Weeks v. State: HIV inmate spit on guard yelling Ill give you AIDS; did not have know M/R result (no practical certainty of result)
Thacker v. Cmnwealth: shot into tent and missed; Not guilty because did not have purpose result (death)
McQuirter v. State: black followed white woman and was arrested for attempted rape (attempt to assault with intent to rape); should be
acquitted under MPC/CL because lacked dangerous proximity or substantial step towards rape
Rizzo: Police intervened before s found bank roll target to rob (CL acquittal (too early); MPC conviction (purpose))
Mandujano: couldnt find drugs so returned money; MPC would convict (poss); did not voluntarily renunciate
Jaffe: police sting; believed property was stolen; MPC would convict (belief that A/C was present) (ie: pickpocket hypo)

Laurie Wilson
Criminal Law Outline - Arenella

Dlugash: shot V after he was already dead; MPC would convict if had belief that A/C live person was present

Laurie Wilson
Criminal Law Outline - Arenella

Accomplice Liability
Accomplice
Acc M/R (intent to aid)
Purpose to aid Ps criminal conduct (knowing aid is
insufficient but might be enough for serious crimes: Fountain)
Protects people who sell goods used for criminal ends
(knowledge only)
MPC requires highest M/R because A/R is weak
Conscious desire of Acc to aid criminal conduct
If knowledge, require that Acc A/R be substantial assistance
Acc A/R (aid)
CL: actual physical aid or psychological encouragement
MPC: attempt to aid is sufficient (even if unsuccessful)
Both: assistance by omission, if legal duty exists

Crime Charged
Acc Has Culpability
M/R A/C (In strict liability, MPC would require this when CL likely
wouldnt, but could argue that Acc shouldnt be held to same standard as P)
M/R Result
Any independent mental state (specific intent)
Objective elements
A/R (done by P)
A/C
Result
Causation

Accomplice liability imputes Ps criminal conduct to Acc

Defenses:
Justification: If P has justification, Acc is justified (no criminal act to impute)
Excuse: If P has an excuse, Acc can still be guilty (Taylor v. Cmnwealth: P took child but was parent, so had justification)
Withdrawal: (MPC) terminates complicity and wholly deprives of effectiveness, gives timely warning to police, attempts to prevent comm. of crime
Abandonment: (CL) communicates withdrawal and takes substantial steps to neutralize assistance (dont have to actually neutralize assistance)
Derivative liability: Requires that P commit A/R and have criminal intent (Hayes); Acc can never be held liable for greater crime than P
Alternative to causation: Acc doesnt need to satisfy but for test
Luparello rule: (CL) if is Acc to crime X, he is Acc to crime Y, if it is a foreseeable outcome; similar to felony murder

Taylor: would likely be convicted for murder during robbery (violent crime, therefore death is foreseeable outcome)

Heinlein: Co-rapists would not be committed of one rapists murder (death isnt a foreseeable outcome of rape)
Cases:
Hicks: P killed V while watched; not guilty because his words did not show purpose M/R, even if they encouraged the P (A/R)
Gladstone: suggested P as drug source; not Acc b/c he lacked Acc M/R (purpose) (ct focuses on lack of communication btwn Acc-P, wrong)
Luparello: enlisted help of friends to beat up rival; P found and killed him; lacked Acc M/R (purpose to kill), however ct finds that is
responsible for any acts that were foreseeable from his request (once is acc to crime X, he is liable for crime Y if is it a foreseeable outcome)
Wilcox v. Jeffery: Acc listened to jazz concert; buying ticket was Acc A/R (encouragement), so was convicted
Tally: Acc sent telegram to interrupt telegram warning V; assistance convicts him in MPC/CL; however if his telegram had not been successful,
would not have been convicted in CL (must have actual assistance)
State v. McVay: told Ps to keep using defective boiler; met A/R and M/R (purpose to aid criminal conduct); met culpability (reck/neg)
Us v. Xavier: charged with aiding a felon possess a firearm; didnt know P was a felon; statute required know going to this A/C; acquitted
Dlugash: can be charged as Acc after shooting dead body; no, timing problem; physical assistance came after P shot V
Regina v. Richards: hired Acc to beat up her husband; V escaped unhurt; cant be charged with crime more serious that what actually happened
State v. Hayes: proposed that P held him rob store; P tricks and helps him; since P lacks criminal intent, cant impute to (derivative liability)

Laurie Wilson
Criminal Law Outline - Arenella

Accomplice to Attempt
Accomplice
Acc M/R
Purpose to aid Ps criminal conduct (knowing aid is
insufficient but might be enough for serious crimes:
Fountain)
Protects people who sell goods used for criminal ends
(Kn)
MPC requires highest M/R because A/R is weak
Conscious desire of Acc to aid criminal conduct
If knowledge, require that Acc A/R be substantial
assistance
Acc A/R
CL: actual physical aid or psychological encouragement
MPC: attempt to aid is sufficient (even if unsuccessful)
Both: assistance by omission, if legal duty exists

Principal
Target Crime
Culpability for criminal conduct
Any independent culpability (specific intent)
M/R A/R, A/C, Result
A/Cs
If A/Cs arent present, must show Ps belief that they exist
Attempt Crime
Att M/R
CL:
Specific intent/purpose to complete criminal conduct element
If no result, must show purpose to complete criminal conduct
MPC:

Purpose or belief going to result

If no result, purpose to complete criminal conduct

Att A/R
CL:
Acts must come dangerously close to completion of target
crime (beyond mere preparation), measured by:
Dangerous proximity (how close has come)

Physical proximity

Indispensable element

Probable desistance

Abnormal step
Unequivocal act

Conduct must unambiguously manifest criminal intent

Point of no return
Last indispensable act
MPC:
Under circumstances as believes them to be, a substantial
step toward completion of the crime to corroborate criminal
purpose
Dont need to analyze A/R if there was a result

Laurie Wilson
Criminal Law Outline - Arenella

Homicide
Common Law
Definitions
Murder: unlawful killing of a human being with malice aforethought
Malice: (1) intent to kill w/o adequate provocation, (2) intent to do
grave bodily harm where death results, (3) abandoned and malignant
heart, (4) intent to commit a felony (felony murder), (5) poison or
lying in wait

MPC 210.2
Definitions

Criminal homicide: if purposely, knowingly, recklessly or

negligently causing the death of another human being

First-degree murder
Premeditated (planning, motive, manner) and deliberate
Anderson test: three stages of premeditation (two required):
Planning, motive, manner (evidence that manner showed a
preconceived design to kill)
Intent to kill (specific intent)
Carroll: said that intent could be inferred from intentional use of a
deadly weapon on a vital part of another person rejected

Murder 1st degree felony

Felony murder
Because FMR is over-inclusive, courts limited the scope. FOP defenses,
depending on the court:
Agency limit: killing must be done in furtherance of the felony and
must be done by felon or co-felons.
Canola: Co-felon and owner killed in commission of store robbery,
however not done by
Heinlein: Rapist killed victim; all are guilty of rape but not murder
Inherently dangerous: limited to felonies; some statutes limit the list
of applicable felonies to violent crimes (burglary, rape)
Felony in abstract: Phillips: Dr. treated eye cancer committed grand
theft and patient died; Drs crime was not inherently dangerous
(looked at crime OBJ and not at result: abstract approach)
Specific facts: Stewart: Crime was child abuse but ct evaluated
subjectively (based on specific gruesome facts) and applied FMR
(specific approach: more deterrence value)
Causation: responsible for any death proximately resulting from
felony: (1) but for, and (2) proximate cause tests (reason. foresee)
Stamp: take the victim as you find him (heart attack did not break
causal chain)
Merger limitation: predicate felony must be independent of the
killing. If crime is assault/battery, then merges with the killing.
Note: Culpability of felony substitutes for normal proof
of homicide
Second-degree murder
M/R: malice
General intent (no premed or delib) and malice
Extreme reckless indifference to the value of human life (implied
malice)
Intent to inflict grievous bodily injury (implied malice)
Ex: Fleming: drunk driver lacked intent to kill but still had ERI
Ex: Malone: Russian roulette acted with ERI, resulting in highest
social harm, so would not be involuntary ms
Voluntary Manslaughter
Intent to kill with adequate provocation (mitigates murder to ms) or
Recklessness
Involuntary Manslaughter (cant be an accomplice)
Criminal/gross negligence
Should have been aware of the substantial and unjustifiable risk that
is a gross deviation from the normal standard of care (negl.)
Substantial risk: (1) probability of harm, (2) severity of harm, (3)
social utility of conduct
Objective standard
Negligent omission: Williams: couple failed to get medical assis for

M/R: purpose or knowledge to all

elements, extreme reckless indifference to the value of human
life (FMR presumes ER)

ERI: must be extremely reckless

(consciously aware of the risk of death and contempt for
human life

Felony Murder

Requires extreme reckless indifference, which is presumed if

is the principal or accomplice

Creates rebuttable presumption, opening door for ; can

show he was not negligent as to death and have FOP defense;
lets jury decide culpability as to death.

If applying causation (because some death resulted), must be

probable consequence
Pro:
Deterrence: increase standard of care during inherently
dangerous felonies (Util)
Expressive purpose to show community condemnation after
life has been lost (Util) (most justified rationale)
Vengeance for life lost (Util)
Social harm not to punish and let felon get off murder (Util)
Eases prosecution burden which promotes effective law
enforcement
Con:
Proportionality: punishment not in line with wrongdoing
(Retrib)
Little deterrence value (Util)
Form of strict liability for murder where there is no M/R
going to the result
Produces anomalous results
Takes involuntary manslaughter (close call on homicide) and
elevates it to murder
Manslaughter (2nd degree felony)

Committed recklessly or

1) Extreme emotional or mental disturbance, 2) for which there

is a reasonable explanation or excuse (obj)
Reasonableness determined from the viewpoint of a person
in the actors situation under the circumstances as he believes
them to be
Extreme emotional or mental disturbance (partial excuse)

Any subjective event that the says provoked him can be

considered by the jury

must show he was provoked at the time of the killing

Jury must consider reasonable excuse from s position, not a

reasonable person standard

cant have created situation where provoked

Much easier to satisfy than CL provocation

Casassa: killed GF after she broke up with him; applies MPC

and almost everything gets to jury; need reasonable explanation
or excuse for provocation

Only rationale is reduced moral culpability (utilitarian); must

be motivated by reduced culpability and dangerousness

Laurie Wilson
Criminal Law Outline - Arenella
rd

tooth infection, despite gangrene smell; Welansky: Boston bar

Negligent Homicide (3 degree felony)

Criminal negligence requires a gross deviation from the

standard of care that a reasonable person would use

No FOP defense allowed to negate M/R

Misdemeanor Manslaughter
Felony murder when the crime was a misdemeanor
Provocation
actually provoked (subj)
Reasonable person in actors situation wouldve been provoked (obj)
did not cool off before the killing (subj)
Reasonable person would not have cooled off (obj)
Reasonable person can take certain characteristics into
consideration
Girouard v. State: taunted about sex ability, stabbed V 19
times words alone were not adequate provocation
Only 5 categories to get to jury: (1) extreme assault or battery
upon , (2) mutual combat, (3) s illegal arrest, (4) injury or
serious abuse of a close relative of , (5) sudden discovery of
spouses adultery (restrictive rule)
Feminist critique: male violence should not be encouraged
Maher v. People: saw wife go into woods and heard rumors;
words would be considered (broader standard)
Allows jury discretion, to apply normative standard
Lenny Hypo (provocation)
Normative standard: Dont modify reasonable person standard
with a dangerous attribute (mental retardation, short temper) because
that would destroy the normative standard
Lenny would not get provocation defense

Attempted Homicide: less punishment because the social harm

didnt occur

Lenny Hypo (EEMD)

s mental retardation could be considered a reasonable

explanation or excuse

Doesnt require external event (unlike CL), but just EEMD

Lenny would likely get provocation defense

Purposes served by grading

1. Degree of dangerousness (utilitarian incapacitation)
2. Degree of moral culpability (retributivist planning shows greater culpability)
3. Degree of social condemnation (utilitarian expressive purpose of punishment)
4. Deterrence (probably not a real motivation, but penalties express different messages for deterrence)
Why punish inadvertent killing?
1. To create higher standard of care amongst society (utilitarian)
2. Actor made earlier choices not to pay attention to relevant dangers; should have acted better (retributivist)
Reasonable person standard
Blindness could modify reasonable person because it created a different normative standard of care and cant be fabricated

Laurie Wilson
Criminal Law Outline - Arenella

Rape
Common Law
General intent crime: reasonable, non-negligent mistake of fact
(FOP) allowed
Rape in Rusk (MD) (old, male-centric version)
A/R: (1) sexual intercourse, (2) by force or threat of force
A/C: (1) without consent (physical or verbal resistance; most cts
require explanation for lack of physical resis), (2) not wife
M/R: (1) Purpose going to A/Rs, (2) Negligence going to
without consent
Gone w/Wind: must have force/threat; he picked her up;
however she did not appear to have fear at time of threat

By force or threat of force is A/R (not A/C) so that cannot

apply FOP defense to knowing whether he was threatening
Policy: force/threat shows distinction between aggressive
seduction and forcible rape
Requires that Vs reaction be one of reasonable fear to give
fair warning that actions are inappropriate
Lack of physical resistance would allow FOP (reasonable
mistake as to consent)

Rape in MTS (NY) (read out force requirement)

A/R: (1) Sexual intercourse, (2) by force or threat of force
(penetration counts as force, so force element is read out)
A/C: none (but lack of consent showed force, with neg M/R)
Gone w/Wind: Absence of freely-given consent; dont have
to show force

Statute focus is on s behavior and not Vs actions

However ct read out force; read in w/o consent (getting ahead
of legis intent; another example: drunk driving)
Consent must be affirmatively and freely-given (crystal clear)

MPC 213.1
Rape
A/R: sexual intercourse
A/C: (1) not wife and either (2) compels V to submit by threat
of imminent death, severe bodily injury, extreme pain or
kidnapping to be inflicted on anyone, (3) has substantially
impaired her power to appraise or control her conduct by
administering or employing, w/o Vs knowledge, intoxicants or
other means for the purpose of preventing resistance, (4)
unconscious, or (5) under 10
M/R: (1) Purpose going to A/R, (2) strict liability if V is under
10, (2) Reckless as to A/C unconsciousness
Note: MPC has no resistance requirement like CL does.
First-degree felony if:
inflicted serious bodily injury on V or another during rape OR
V was not a voluntary social companion who had previously
permitted him sexual liberties
Otherwise rape is a second-degree felony

MPC and CL similarities

Focus on male s and female Vs
Marital exception

MPC differences
Sexual intercourse not just vaginal
Rape defined in terms of males aggression, not females lack of
consent (therefore no resistance requirement)
Requires corroboration of Vs testimony
Allows reasonable mistake of age

Other examples
Cmnwealth v. Rhodes: force could be physical, moral,
psychological or intellectual (problem of line-drawing)
Evans: V coerced into having sex to save her life; Ct read in
purpose going to threat/force; acquitted
Morgan: Ct says A/R is non-consensual intercourse, which
means that intent must go to consent as well
Ascolillo: ct did not allow reasonable mistake going to consent,
so read rape as strict liability; might be over-protecting victim
and ensnaring innocent s
Alston: narrow timeframe
How active resistance bolsters Vs case:
Supports A/R (force), to overcome resistance
Supports A/C (w/o consent)
Supports s M/R of negligence going to w/o consent, because
he could have no reasonable belief
However, requirement could put women in greater harm
How lack of resistance bolsters s case:
Supports A/C (consent)
Supports M/R of negligence going to w/o consent (reasonable
belief)
Policy arguments:
Resistance requirement benefits s
Changing social norms mean that male is less the aggressive
seducer and clear consent should be required
Requiring affirmative consent can ruin normal human
interaction

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Criminal Law Outline - Arenella

Justification and Excuse

Justification

We condone (morally and socially), the behavior of the

D what he did was not wrong. Example arson to save a
town.

Focus on the criminal act, not the actor

Necessity: choice of lesser evil

Evil of crime being committed compared to greater evil to be
avoided (objective evaluation of competing harms)
Can be elimination or mitigation of greater evil
Self-Defense (imperfect SD reduces murder 1 to manslaughter)
Entrapment (2.13)
Official induces or encourages by making false
representations, etc.

Excuse

The act is wrong, but the actor is not morally culpable /

not a moral agent

Focuses on the actor and not the criminal act. The result
of extreme coercive situation and the actor is not a moral
agent. No reasonable person would have acted
differently.

Utilitarian we have excuses for those who are

incapable of being deterred.
Full excuses
Insanity
Involuntary intoxication
Immaturity
Duress (human threat only)
Partial Excuses
Diminished capacity
Voluntary intoxication

Culpability
Failure of proof defenses

Mistake of fact (Morissette)

Voluntary intoxication (applies to CL intent crimes; MPC purpose/know crimes)

Affirmative defenses

Full excuse (insanity, duress)

Partial excuse (adequate provocation/EEMD)

Wrongdoing (act causing social harm)
Affirmative defenses

Justification (self-defense)
Failure of proof defenses

Objective elements of crime not satisfied

Fair attribution of Wrongdoing and Degree of Wrongdoing to s Agency (causation)
Failure of proof defenses

Involuntary act, automatism, unconsciousness

Other Defenses:
A.
B.
C.

Mistake of Law
i. Fair warning
ii. Reasonable reliance
Provocation/EEMD
i. Partial affirmative defense to homicide
Failure of Proof
i. Negates an element
ii. Concurrence principle
iii. Legal or factual impossibility (if negates an element of the crime)

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Necessity Defense (choice of lesser evils)

If justified by necessity defense, then there is no criminal conduct to impute to an accomplice

Greater evil does not have to be unlawful conduct

Policy
s was not wrong, because it was the least harmful option, therefore no culpability to punish
Used by jury to uphold conduct that lawmaker would have allowed, if given the opportunity
If no force or event was present, would have abided by the law
Net social gain
Common Law
MPC 3.02
Necessity defense
Necessity defense
Clear and imminent danger
Reasonable evaluation of evils (objective, not s subjective
must reasonably believe that conduct will be effective in
belief)
avoiding greater harm (causal relationship)
Actual necessity: must show that only commission of crime
No effective, legal alternative
will avoid the greater evil
cant have wrongfully placed himself in situation
Harm avoided must be greater than crime (quantitative)
Not precluded by legislative intent (for abortion clinic bombing,
If is reckless or negligent in assessing necessity, then can be
could get to jury as long as jury believes that legal abortion is
convicted of neg/reck crime (excuse)
immoral)
Precluded by legislative intent (abortion clinic bombing, assisted
suicide)
Exceptions
Some jurisdictions allow necessity only to protect people or
Differences from CL:
property
No immanency requirement
Most jurisdictions do not allow defense for homicide
Accomplice acquitted only if is justified, not excused
Utilitarians: would excuse, because homicide was for greater
does not automatically lose defense if he was at fault for
social good
creating the situation
Retributivists: may excuse for lack of choice or
Precluded by legislative intent
blameworthiness
Mistake
If mistake for purpose or knowledge crime, then defense
If mistake for negligence or reckless crime, then negligent or
reckless evaluation is sufficient to convict
Lovercamp: sets rules for prison escape
Only applicable if:
(1) Specific threat of death or rape
(2) No time to report
(3) No time to use courts
(4) No innocent people are hurt during escape
(5) turns himself into authorities as soon as he is out
Unger: raped in prison and threatened with death if he reported;
asserted necessity defense for killing V; however court does not
want to justify prison escape as a rightful, non-culpable act
Shune: indirect civil disobedience wont trigger necessity defense;
greater evil was foreign policy decision and there was a lawful
alternative to avoid greater evil (petition Congress)

If Dudley was responsible for shipwreck, his culpability for killing

crewmember would be considered (depends on whether he was
reck/neg in creating situation)

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Self-Defense
Paradox: (1) culpable perpetrator has right to life, (2) however in conflict with human intuition that they deserve it
Justification: harm must be equivalent to threat, therefore must be imminent death/serious bodily injury (proportionality)
Requirements: (1) adequate threat, (2) necessary use of defensive violence (unlike Goetz), (3) degree of force used proportionate to threat
Colorado: homeowners allowed to use lethal violence to defend against anyone breaking in to commit a felony (open season)
Common Law (objective)
MPC 3.04 (subjective)
Self-Defense
Self-Defense 3.04 (justification)
Necessity: Use of force is justified when reasonably believes
Use of force is justified when believes (subjective) force is
(objective) force is immediately necessary
necessary on the present occasion
Reasonable belief: Objective standard
To protect himself against force or threat of serious bodily injury,
Proportionality: deadly force only if deadly force by aggressor
death, kidnapping or sexual intercourse
Some states have retreat rule
Must be impossible to retreat to complete safety
cannot have provoked use of force (unless mild aggression
cannot have provoked use of force against him
leads to heightened response from V)
Subjective standard
Limitations: Not justified if:
Justification or excuse?
Resisting arrest even if arrest is unlawful
Most jurisdictions view SD as justification, therefore use an
Resisting force by someone protecting his property, unless
objective standard
is a police officer acting within his duties or his asst.
If justification, no criminal conduct to impute to Accomplice
is lawfully retaking property
believes force is necessary to protect against death/SBH
Goetz (NY)
provoked the use of force against him
Reasonable person standard used in most jurisdictions
knows he can avoid necessity of force by retreating,
Attempted murder
surrendering a thing or obeying a command he has no duty
Unreasonable SD = no defense (would be defense in MPC)
to avoid, unless he is in his home or workplace, or is a cop
s paranoia is not a subjective characteristic that would be
using justified force within his duties
considered, because it destroys the normative standard
Use of confinement: can use confinement as protective force
However s previous muggings could mean he had heightened
only if has taken all reasonable measures to terminate the
sensitivity to when a mugging was imminent
confinement as soon as he knows that he safely can
Policy
Grading purposes (psychotic person is more dangerous, so his
excuse will have to be insanity or diminished capacity)
Mistake
Some jurisdictions do not allow mistake about danger
Most jurisdictions allow for imperfect SD to mitigate to
manslaughter (require an objective, actual threat)
Most jurisdictions do not recognize imperfect SD for
attempted murder
Battered Womens Syndrome (excuse)
Used because the threat is not imminent and had possibility
for lawful alternative
Expert testimony used to educate the jury about why abused
women dont leave their abusers, why the threat is perceived by
as imminent and women do not seek lawful alternatives
Three stages: tension building, acute battering phase,
contrition, leads to learned helplessness
Jury uses testimony to assess the reasonableness of SD (s
expectation or reaction to V), but cant use directly to weaken
the reasonable person standard
Modifying the objective standard dilutes the normative standard
Subjective component: fear of imminent, unlawful aggression
Objective component: reasonable belief requirement
Paradox: learned helplessness is applied to women who werent
passive in their situations
Norman: V was sleeping when killed by abused wife; BWS
allows jury to vote their own values, believing that at some point
V forfeited the laws protection (in MPC, would have been
negligent SD, meaning negligent homicide)
Schroeder: Felon killed sleeping cellmate after V made threat to
rape him in the future; harm wasnt imminent, but was
realistic; BWS would have given excuse
Kelly: s version was that he pushed her to the ground and she
saw him rush toward her with hands raised; still a lack of deadly

Mistaken Self-Defense 3.09 (partial excuse)

When believes SD is necessary but is reckless or negligent in
having such a belief or in acquiring or failing to acquire any
knowledge or belief which is material to the justifiability of his
use of force
When recklessly or negligently injures or creates risk of injury
to innocent persons
For murder: reckless SD is manslaughter; negligent SD is
negligent homicide
For attempted murder (Goetz): negligence gets off (attempted
murder w/o result requires purpose going to death; reckless
endangerment requires recklessness

Battered Womens Syndrome

Can be used regarding her expectation or reaction to him

Cant be used to weaken the reasonable person standard

Definition of deadly force 3.11(2)

Force which the actor uses with the purpose of causing or which
he knows to create a substantial risk of causing death or serious
bodily harm

If SD cant be used, could try to use EEMD to reduce to

manslaughter
Non-negligent evaluation of situation, namely:
Adequacy: threat of deadly force, kidnapping, rape, robbery
Necessity: threat must be imminent (plus retreat rule)
Proportionality: of s violence to unlawful threat
Can discriminate against women, because uses male
conception of a fair fight

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force therefore proportionality problem

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Duress (excuse)
Common Law
Duress
Triggered by imminent threat of death or serious bodily injury
upon or s family
No reasonable opportunity to escape/avoid choice (no lawful
alternative)
Person of reasonable firmness would not have been able to resist
(objective) and could not resist (subjective)
Direct causal relation between the coercion and s crime
Unavailable if:
was reckless in placing himself in a situation where coercion
was likely to occur
Differences from MPC:
No excuse for murder
Most jurisdictions = no defense
Some jurisdictions = partial excuse to manslaughter
Some jurisdiction = available for FMR if felon was coerced
BWS problems:
No imminent threat of death or serious bodily injury (BW
couldnt have perceived threat from words, looks or earlier
threat)
Not available if BW could have escaped
Court may allow learned helplessness

MPC 2.09
Duress
Triggered by unlawful threat of physical harm (subjective)
Person of reasonable firmness would have been unable to resist
the coercion (objective)
Must be non-negligent (BWS who is negligent in how she
reacted, such as Kelly, would not get the defense because she
had the capacity not to make the mistake)
If was negligent in placing himself in situation where coercion
was likely to occur, then reckless, purporse or knowledgeable
conduct is excused
Must have human coercer (Casassa might have been situational
coercion)
No reasonable legal alternative
Unavailable if:
was reckless in placing himself in a situation where coercion
was likely to occur
Differences from CL:
No deadly force or immanency required
Physical harm only: person of reasonable firmness would not be
coerced by threat to property or reputation (normative standard)
Threat upon non-family member excuses s conduct
Applies to murder
Does not require that coercer was trying to get to do the crime
charged
Must have human coercer (Cabarga couldnt get duress defense)
Situational coercion might allow to blame their
situations/backgrounds, which lets too many people off

BWS not applicable:

BW isnt a person of reasonable firmness (objective standard)
However, if abuse destroys her agency, then she is no longer a
morally accountable agent (diminished capacity)
Modifying reasonable person with learned helplessness would
destroy normative standard

Policy
not culpable because he was denied a fair opportunity to comply with the law (no deterrent value)
Reasonable person would have done the same; negates moral culpability (in line with community moral norms)
s act will be imputed to the coercer as principal (vengeance satisfied)

Unger: was raped in prison under knife threat and threatened with death if he reported it; asserted duress defense, but was rejected;
court found that duress shows that has been deprived of free will, capability or ability to make a rational choice about a preferred
course of action (WRONG: duress does not show lack of free will); ct also said that duress must have human coercer, who is trying to
get to do crime he is charged with (IL requires this, but not MPC)

Overlap between justification and duress

If P forces to drive at gunpoint, and has choice to drive straight and kill kids or do some other damage, then has both necessity
and duress (human coercer) defenses
Overlap when source of peril comes from human threat and greater harm was avoided

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Insanity (excuse)
Mental illness that affects s emotions, reasoning ability or self-control
Common Law
MPC 4.03
Insanity
Insanity
Triggered by mental illness or defect at the time of the crime
Triggered by mental disease or defect at the time of the crime
Excusing conditions:
Excusing condition: Lacks the substantial capacity to appreciate
Cognitive prong: MNaghten test
the wrongfulness of his conduct or ability conform his conduct
cant understand the quality and nature of his actions,
in light of legal and moral norms (cognitive OR volitional)
therefore does not know theyre wrong
Volitional prong: Difficulty controlling conduct in light of
Lyons: got rid of volitional requirement because self-control cant
legal and moral norms
be measured (difficult to tell when has capacity and just didnt
Competency to stand trial: must have reasonable degree of
exercise it vs. just didnt have it); only focuses on capacity to
rational understanding to understand proceedings against him
appreciate moral significance (about whether has the capacity,
not whether exercised it)
Federal Law (Post-Hinkley)
Triggered by serious mental illness
No volitional prong; only MNaghten cognitive test
Removed volitional prong after Hinkley got the insanity defense;
also a fabrication problem with volitional requirement

California MNaghten Test (cognitive)

1. All actors are presumed the same
2. For insanity defense, must prove that at the time of doing
the act, the party was under such a defect of reason, from
the disease of the mind, as not to know the nature and
quality of the act he was doing, or if he did know, he
didnt know what he was doing was wrong.
The Product Test (Durham)

No man should be held accountable criminally for an act

which was the product of mental disease (so not to
punish him for the disease)

Critiqued b/c it gave too much power to psychiatrists

The Control Test (volitional focus)

A persons inability to control behavior as a result of

mental disease ought to be exculpatory even though the
offender might be aware that the act was wrong
Or

An insane impulse can be enough to dethrone reason

and deprive capacity to know right from wrong

A deprivation of capacity to exercise will (volition to

control is gone)

How to measure or test the ability or capacity D has to

control himself?

[Deterrence doesnt work for these people because if

they have no choice, they didnt operate under lack of
fear of punishment]
Retributivist (only valid rationale)
Only punish people who are morally culpable for wrongdoing;
insanity negates moral culpability
Rarely used but symbolically important

4.01 (cognitive and volitional)

1. Not responsible for criminal conduct if, at time of
conduct as a result of mental disease or defect, he lacks
the substantial capacity either to appreciate the
criminality (cognition) of his conduct OR to conform his
conduct (volition) to the requirements of the law
2. Repeated criminal conduct and anti-social conduct
doesnt count toward mental disease or defect
Current version of the MPC (cognitive)

Volitional part dropped. Post 1981, moves closer to

MNaghten test.

Burden of Proof is on the D to raise it as an aff defense

Mental Disease or Defect:
1. The mental disorder must have bearing on the crime
charged
2. Must be recognized mental defect
Effect of Insanity Acquittal
a. Automatic civil commitment (bad because could be sane at
time of trial)
1. Mentally ill, and
2. Dangerous to self or others
b. Discretionary commitment
1. Allowed to require temporary detention for observation

Utilitarian (not very applicable)

General deterrence: public believes defense can be fabricated,
therefore general deterrence is weakened by recognizing
insanity defense
Expressive purpose: moral condemnation, which doesnt just
condemn the act but also the culpability

Insanity is not a medcial term, it is a legal conclusion that the is not morally responsible for the wrongdoing
No objective, reasonable person component (only looking at particular )
Only defense that gives opportunity to challenge assumption that is a morally accountable actor
CA allows insanity as a full excuse if no lesser-included general intent

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Mistake of Fact (FOP Defense)

Common Law
Mistake is a defense if:
Specific intent: not guilty if mistake negates the specific intent,
whether reasonable or unreasonable
General intent: not guilty if mistake was reasonable, nonnegligent, and shows that actor committed A/R with morally
blameless mind
Strict liability: No defense
Moral Wrong Doctrine:
No exculpation if the conduct would still be immoral under the
facts the as the actor believed them to be
Legal Wrong Doctrine:
If satisfies the mental states for a higher degree of crime, but
actually commits a less serious crime than he realizes, he will be
punished at the greater grade of offense. Punished for more than
his crime (unlike MPC)

MPC 2.04
Ignorance or mistake is a defense if:
Negates the M/R of any material element of the crime
Morissette: claims that knowledge goes to property of
another, and didnt have the requisite M/R for the A/C;
mistake about when property is abandoned
Freed: charged with unregistered grenade and claimed that
statute should require know M/R going to A/C unregistered; Ct
refused to read in M/R for strict liability crime
Staples: had unregistered firearm and claimed that public
welfare statute should have culpable M/R going to A/C
firearm; Ct read in know and gave a FOP defense
Regina v. Smith: destroyed the flooring, but did not realize
it was criminal conduct because he did not know it was
considered property of another
International Minerals: wanted know M/R to go to
shipping, but ct reads it going to corrosive liquids, no FOP
If commits a crime of a higher degree than he thought he was
committing, then will be held liable for the lower offense
(culpable for lower offense)
Mistake about another law (usually civil law) causes to break
a criminal law (if it negates the M/R of the crime)
Cheeks: allowed defense because tax law is confusing; fair
warning problem (ct read in willful going to duty to pay
taxes, creating a FOP defense)
Must apply to material offense of the crime:
Holloway v. US: Statute specified A/C interstate commerce only
as jurisdictional element, so cant be used as a FOP defense

Mistake of Law (Affirmative Defense)

Common Law
Negates only the specific intent of the crime
Ignorance of the law is no mistake: because CL was mala in se
crimes, people had fair warning and were doing something morally
wrong
The development of mala prohibitum (public welfare) crimes
meant that s ignorance of the law might be a mistake.

Specific
Intent
General
Intent
Strict
Liability

Voluntary
Intoxication
Defense

Mistake
of Fact
Defense

Mistake
of Law
Defense

No defense

Only
reasonable
mistakes
No
defense

No
defense

No defense

No
defense

MPC 2.04(3)
Ignorance of the law can be an excuse when:
Law not published or reasonably made known to (fair warning
problem)
Lambert: unaware of new requirement that felons register
with LAPD; affirmative defense allowed for s omission of
failing to register (fair warning rationale: must be aware of
facts triggering duty to act) (unlike Intl Minerals being
present in LA for 5 days alone is not criminal)
Reasonable reliance on an official interpretation of the law:
Statute or other enactment
Judicial decision, opinion or jment
Administrative order or grant of permission
Official interpretation by the public officer/body charged by
law with responsibility for the laws interpretation,
administration or enforcement
Albertini: relied on ct determination (official
interpretation) so had valid affirmative defense
Marrero: no mistake of law, because could not rely on his
own interpretation of peace officer (however, actually
asked ct to create negl. M/R going to not a peace officer,
which would be a FOP)
Hopkins: was told by states atty that he could erect
marriage signs; depends on whether that is official statement
of the law (told at a bar, so probably not in his official
capacity)
Raley v. Ohio: Govt officials told that protests were
allowed, made statement in their official capacity
Dont want to encourage private citizens to interpret the law

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Diminished Capacity
Mens Rea Model
Evidence Rule: admit evidence to negate M/R

No M/R is FOP defense (rarely used because M/R is too easy to show)
o Because of diminished capacity, the did not form the requisite specific intent for the crime
o Can negate reckless, knowledge or purpose (not negligence, because its a normative standard and s not normal)

Limited defense or impact when properly applied by trial courts its not often that a D lacked specific intent because of diminished
capacity (can be in general a stupid person, but still had intent to kill). Not useful in this situation.

4.02 Evidence of mental disease or defect admissible if relevant to prove D did or did not have M/R

No statute, because FOP doesnt need to be written

Diminished Capacity
Partial excuse (never used in US)

True diminished capacity (abolished) is mens rea model (not abolished) but functions like Diminished Responsibility Model (DRM).

No legislature adopted the diminished capacity defense because it is inconsistent with the grading judgments want to look at factors
besides culpability including dangerousness.

Allow evidence of mental illness at time of crime to negate M/R in practice, its DRM

Most evidence isnt logical to negate criminal intent. M/R just means limited mental state. Mental illness usually doesnt negate these
mental states.

Mens rea version of the defense wont help the insane they need a mitigating factor and a defense even though their M/R wont
necessarily be negated. So, diminished capacity instead. Cant create an affirmative defense though, because thats the legislatures job.

CA courts defined M/R. Allow in the evidence of mental illness even though he had the criminal intent. Re-wrote premeditation to say
that it couldnt be shown if had mental illness. Because the MNaghten rule is too mean to the mentally ill. CA can still use the mens
rea model. Deserve to get evidence in. Pollock case that you cant get rid of mens rea requirement. Supreme Court said it wasnt
constitutional. If legislature wants to, they can say evidence of m/r is excluded even if relevant to FOP defense.

Pohlot: tried to get partial excuse of diminished capacity, but court read 1984 statute to mean that Congress abolished diminished
capacity; had M/R, so couldnt use M/R model; court imposed insanity instead; had intent to kill but got excuse
Diminished Responsibility Model

Partial Excuse & Affirmative Defense (formally exists in UK only) Diminished Moral Culpability Rationale

Courts lack the power to adopt it because it interferes with the legislatures grading schemes Legislature already said what the
punishment should be and cant say that less culpable to lessen the punishment and go contrary to legislative intent.

Diminished responsibility DOES NOT consider the reasonable explanation or excuse.

DRM used to mitigate severity of crime for sane but mentally disabled offender (shows less culpability)

Allows grading in culpability of offenders; prevents execution; more thorough and individual inquiry into Ds mental capacity.

EEMD is the closest thing we have asks for evidence of mental defect or illness OR just anger, fear or powerful emotion. Usually
theres such a powerful reaction BECAUSE of the defect. EEMD must be reasonable explanation or excuse.

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Intoxication
Common Law
Voluntary Intoxication (FOP Defense/Partial Excuse)
1. A voluntarily intoxicated D is guilty when:

Specific Intent: yes fop defense only when

the D did not form the SI required of the crime
(usually a lesser included GI crime to convict of)

General Intent: no intoxication is no excuse

because still moral blame for getting drunk and
no lesser crime

Strict Liability: no excuse.

2.

The defense only allows information to the jury about

the intoxication must negate the specific intent for it to
be a successful defense
3. Successful intoxication defense only mitigates never
fully excuses
Intoxication and Insanity Vol. Intoxicn can be a defense if:
1. Temporary effects of intoxication are not insanity and
2. Long term psychological effects of intoxication =
insanity

MPC
2.08 Voluntary Intoxication
1. Defense if negates an element of the purpose or
knowledge crime (FOP)
2. If a reckless crime, and actor is unaware of risk that hed
have been aware of if sober, unawareness is no defense
(reckless of getting drunk is seen as = to reckless m/r)
No defense for reckless m/r crimes
* Intoxication is allowed to negate purpose and knowledge
* Intoxication does not negate reckless of negligent crimes
Note: intoxication makes negligent actors more culpable.

Intoxication and Insanity Vol. Intoxicn can be a defense if:

2.08(3) Intoxication does not, in itself, constitute mental disease.
Intoxication must create a mental illness.

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Impossibility
Factual Impossibility
MPC and CL:

No Defense D does an act which would be criminal if the circumstances were as he believed them to be liable (Ds done the a/r
with the requisite m/r)

Liable only for the attempt crime since the a/c element wasnt objectively satisfied for target crime liability

Rationale: Requisite m/r shows dangerousness, culpability and social harm.

Hybrid Legal Impossibility
MPC:
No defense the actors goal was illegal, but commission of the offense was impossible because of factual mistake regarding the legal status
of a/cs relevant to her a/r liable. [this defense abolished and merged with factual impossibility]
Legal Impossibility
MPC and CL:
Defense D does act that he believes is illegal but its really legal no liability because no crime to be convicted of legality principle
(prostitution in Nevada, thinking hes in CA).

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Laurie Wilson
Criminal Law Outline - Arenella

Burglary, Larceny, Receiving Stolen Property, Reckless Endangerment, Assault

Common Law
MPC
Burglary
Burglary 221.2
A/r breaking and entering
A/r enters
M/r with intent to commit a felony therein (specific intent)
M/r purpose and intent to commit a felony therein (special added
A/c dwelling, house or structure
specific intent)
No result
A/c building or occupied structure (unless open to public or D
was authorized to enter)
No result
Affirmative Defense building abandoned
3rd Degree felony
2nd Degree felony if: at night in home, armed, intent to inflict
bodily injury, or in the commission of a reckless higher crime.
Larceny 223.2
A/r taking or controlling
M/r intent to permanently deprive
A/c property of another
No result (felony or misdemeanor)
Receiving Stolen Property 223.6
A/r receives, retains, or disposes
M/r purpose to a/r; knowledge to a/c
A/c stolen property of another without intent to return
No result (felony or misdemeanor)
Reckless Endangerment 211.2
A/r any voluntary act
M/r recklessly
A/c another person
Result placed in danger of death or serious injury

Reckless presumed if D points gun at another regardless

if he thought loaded or not

Misdemeanor

Larceny
A/r taking and carrying away
M/r intent to permanently deprive (specific intent)
A/c property of another
No result
Receiving Stolen Property
A/r receiving
M/r knowledge as to a/c
A/c stolen property
No result
Reckless Endangerment
A/r any voluntary act
M/r recklessly
A/c another person
Result placed in danger of death or serious injury

Assault
General Intent Crime
Insanity Defense
Civil Commitment
Substantive Due Process requires state to show:
1. Person is mentally ill (must have this to respect the
individual autonomy principle hard to deprive liberty)
2. Danger to self or others
Procedural Due Process requires proof that:
1. Burden of proof on the state
2. Clear and convincing evidence
3. Adversarial trial

Criminal Punishment
Substantive Due Process requires state to show:
1. Substantive guilt based on justifications for
deprivations of liberty like Utilitarianism, Retribution,
etc.
Procedural Due Process requires that:
1. State burden of proof is beyond a reasonable doubt
2. Privilege against self incrimination
3. Adversarial trial

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