CRIMINAL LAW OUTLINE

GENERAL PRINCIPLES
I. PRINCIPLE OF LEGALITY: A person may not be convicted and punished unless her
conduct was defined as criminal
i. Principle of Clarity: Criminal statutes should be understandable to
reasonable law-abiding persons
ii. Criminal statutes should be crafted so as not to delegate basic policy
matters to policemen, judges, and juries for resolution on subjective
basis.
iii. Lenity Doctrine (strict interpretation of statutes) Judicial interpretation of
ambiguous statutes should be biased in favor of the accused.. ( by
statute rather than by judges- courts should not create new crimes.
b. Rationale for principle of legality
i. Prevents arbitrary and vindictive use of laws
ii. enhances individual autonomy and maximizes the opportunity of
individuals to pursue their own purposes and ends by reducing the risk
that a persons lawful conduct will be punished retroactively.
iii. Justified on fair notice. Give warning of their effect and permit individuals
to rely on their meaning until explicitly changed. ( fair notice also serves
deterrence)
c. Jury Nullification: even if proved that D is guilt beyond reasonable doubt, a jury
may acquit D bc they dont agree with law.
II. PROCESS OF STATUTORY CONSTRUCTION:
i. First Rule: Ordinary meaning or common usage.
ii. Second Rule: If ordinary meaning is not clear, then intent of Congress
1. Statutory language.
2. Statutory purpose.
3. Legislative history
iii. VOID FOR VAGUENESS:
1. General principle: A criminal statute must be sufficiently definite
to give notice of the required conduct to one who would avoid its
penalties, and to guide the judge in its application and the lawyer
in defending one charged with its violation.
2. POLICY against vague statutes:
a. The clear laws give the person of ordinary intelligence an
opportunity to know what is prohibited so that they may act
accordingly. ( vague laws can trap innocent people)
b. Laws must apply explicit standards to avoid discriminatory
discretion.
c. 3. Can inhibit freedom by steering citizens away fro
conduct that appears illegal.
iv. VOID AS OVERBROAD:
1. General Principle: A statutes cannot be so overbroad as to
proscribe innocent conduct or conduct that is constitutionally
protected (e.g., First amendment).
v. PRINCIPLE OF LENITY ( when ambiguous) above
vi. CONSTITUTIONAL AVOIDANCE

III.

Punishment
a. General:
i. May not be punished twice for same crime, retroactively, or cruel and
unusual.
b. Utilitarianism: Pain inflicted by punishment is justifiable if, but only if, it is
expected to result in reduction in the pain of crime that would otherwise occur.
i. Theories:
1. Specific Deterrence : meant to deter D of future crime by
incapacitation ( incarcerated) and intimidation (punishment
reminds D that if he returns to a life of crime he will experience
more pain.
2. General Deterrence: Ds punishment serves as an object lesson
for the rest of the community: it instills fear of punishment and
teaches us what conduct is permissible.
a. Criticism: using person as instrument
3. Educational Function ( rehabilitation): use a correctional system
to reform the wrongdoer rather than to secure compliance by
through fear of punishment.
a. Criticism: if school, church failed who would this help
c. Retribution: punishment is justified when it is deserved. It works backwards
and justifies punishment on basis of voluntary commission of a crime.
i. Theories:
1. Societal Vengeance: gratifies the passion of revenge that would
otherwise be disguised as private vengeance.
2. Protective retribution: doesnt want to hurt wrongdoers, instead it
is a means of securing moral balance in society. Permits offender
to pa his debt to society and return to society guilt free.
3. Victim Vindication: reminds of victims worth
ii. Criticism: increases hatred, cruel, senseless, founded on emotions rather
than on reason.
d. Proportionality: Punishment must not be excessive or disproportionate.
i. Utilitarian: That punishment be no more than what is require dto satisfy
utilitarian goals.
ii. Retributivism: Punishment must be proportional to the offense
committed by looking at harm caused a wrongdoers degree of moral
desert for having committed it.
iii. Rummel case: looked at the following factors to determin
disprorportionality: 1. The gravity of the offense 2. Intra-jx analysis
(penalty in similar offenses in same jx) 3. Inter-jx analysis (penalty in
similar offenses in other jx)

Actus Reas
I. The Four Elements of Crime
a. Actus Reus: The prohibited act
b. Mens Rea: The prohibited mental state
c. Causation linking defendants act with social harm.

i. Required only If result crimes, where the act must be linked to a

particular result; i.e., murder
ii. Not required of conduct crimes, which does not require a particular
result; i.e., driving while intoxicated or Rape
d. Concurrence between actus reus and mens rea
II. Five Basic Principles of Actus Reus
a. No conviction solely on the basis of thoughts
b. Act must be voluntary
c. No criminal liability for omission, unless there is a duty to act
d. Status crimes are unconstitutional (state of being rather than act)
III. Broader Lesson of Actus Reus
a. The judgment that something is an act i.e. more than a thought; more than a
reflex; more than an omission; is really a conclusion about culpability.
b. As such, think beyond the simple statement of this is an act or that is not an act
and see why and how (i.e., what moral lens) the courts have used to come to
their conclusions.
c. EX: Acting v. Thinking:
i. CASE- Instead of acting on his fantasies, Brian confronted his demons
by writing a journal filled with fictional tales of child molestation and
torture. For this, Brian became the first person in the US to be
imprisoned for fictitious writing. His writings were so graphic that grand
jurors asked police to stop reading them after just two pages, and a
psychologist hired by the prosecution said they were among the most
disturbing writings hed encountered in his 21 year practice. Brians
stories centered on three children, ages 10 and 11, who are caged in a
basement, molested, and sexually tortured. Yet Brian never acted on
these dark fantasies.
ii. Still, Dalton pled guilty in July 2001 to pandering obscenity, which under
the Ohio statute, involves reproducing, publishing, advertising,
selling, delivering, displaying, buying, procuring, possessing, etc.,
any obscene material that has a minor as one of its participants or
portrayed observers.
iii. What is the actus reus in the statute that applies to Brian?
1. Possessing- he possessed the journal
2. Publishing include journal writing?
3. Reproducing journal writing he was just producing
a. Look at plain meaning copy or duplicate , it was the
original
IV. Voluntary Act
a. Act is simply a bodily movement, simply a muscular contraction.
b. Voluntary to determine actus reus/element of crime:
i. John Austin: movement of the body which follows our volition.
ii. Holmes: a willed contraction of a muscle.
c. Connection to mens rea:
i. The concept of volition or willed should only attach to those who are
accountable for their actions in a very personal way.

ii. A voluntary act involves the use of the human mind; an involuntary act
involves the use of the human brain, without the aid of the mind.
d. Examples of Involuntary Acts
i. Consider Involuntary movements
1. Muscle Spasms (e.g., epileptic attacks)
2. Movements willed by a third-party (e.g. Martin v. state: the actus
reas was being in the public place. )
a. Acts committed under duress are not involuntary, though
there may be some criminal defenses available (e.g.,
necessity). EX: go to bank and steal money for a robber
ii. Unconscious acts:
1. Hypnotism
2. Multiple personalities
3. Sleep Walking.
4. Sexsomnia.
V. Possession as an Act
a. Model Penal Code 2.01(4): Possession is an act, within the meaning of this
Section, if the possessor knowingly procured or received the thing possessed
or was aware of his control thereof for a sufficient period of time to have been
able to terminate his possession.
b. Consider:
i. A plants drugs in Bs purse in order to avoid detection during an airport
security search.
VI. Status crime: crime of being rather than a doing.. it is protected by law.
a. Robinson doctrine: said conviction of status crimes is unconstitutional
b. Powel case: If a defendant had committed an act, any act, then that D lost any
8th amend protection under the robinson doctrine.
i. It is different than condition crimes ( ex: being drunk as opposed to
alcoholism)
c. EX- Homeless: You have no choice than to sleep in public. So the conviction
would be for the act of sleeping. This is more involuntary
d. EX- punishing immigrants unlawful presence in the U.S :
i. Presence was seen as a status crime
ii. So AZ passes the statute to include trespassing by illegal aliens so not
has an act requirement. So it avoids the status argument
VII. Liability for Omissions: Duty to Act
a. Generally, no criminal liability follows from omission, unless there is a duty to
act
b. Five situation in which individuals have a duty to act:
i. Special relationship of dependence/inter-dependence (e.g., parent/child;
spouses)
ii. Contractual obligation (e.g., Nursing home)
iii. Physician obligation? Consider Barber v. Superior Court
iv. Statutory duty (e.g., paying taxes; reporting crimes against minors)
v. Defendant creates risk
vi. Defendant voluntarily assumes care of a person
c. Additional requirements:
i. Person who owes duty has to be physically capable of acting
ii. What about mentally capable?
iii. hat about emotionally capable?

d. The No Duty to Rescue

i. In the U.S., only about 10 states impose limited criminal liability for the
failure to rescue.
ii. The no criminal liability rule for failure to rescue is mirrored in tort law:
i.e., no civil liability follows from the failure to rescue.
iii. The no duty to rescue also mirrors U.S. conceptions of rights as
negative, rather than positive.

Mens Rea
I. The Ambiguous Meaning of Mens Rea
a. Broader definition: General notion of moral blameworthiness general
immorality of motive, vicious will, or an evil-meaning mind
i. Under this definition, an individual will be found guilty for any criminal act
(actus reus) that he committed while having any morally culpable or
blameworthy state of mind.
b. Narrower approach
i. an individual is not guilty of an offense, even if he had a guilty state of
mind, where the individuals state of mind does not match the mental
state specified in the definition of the charged crime.
ii. This is the elemental meaning of mens rea.
c. Frequently used Mens reas terms: Intent ( General or specific) , knowledge,
recklessness, negligence, S/L
i. INTENT: General vs. Specific
1. General:When the definition of a crime consists of only the
description of a particular act, without reference to intent to do a
further act or achieve a future consequence.
a. EX: , intent to do the act that causes the harm.
b. May also simply refer to crimes on the basis of
recklessness or negligence
c. EX: Rape
2. Specific: when the def of a crime refers to D intent to do some
further act or achieve some additional consequence or when the
actor must be aware of a statutory attendant.
a. EX: intent to cause some future act separate from the
mens sea.
b. Proof of a special motive or purpose for committing the
actus reas.
c. EX: murder.
3. Common Law: Two Definition (can use both)
a. Stricter Standard: Requisite intent is present if it is his or
her conscious object or purpose to cause a certain result or
to engage in certain prohibited conduct ( beyond a
reasonable doubt)
b. More Flexible standard: Requisite intent is present if one
knows to a virtual certainty that ones actions will cause that
social harm ( the difference if the degree of knowledgedegree of certainty)

c. Each is a subjective standard: although evidentiary

challenges convert it into a more objective inquiry.
i. Evidentiary Issues ( have to look outside when
actual knowledge is not known):
1. Inferences from surrounding circumstances or
motives, comments,
4. Transferred Intent:
a. DEF: Where one attempts to kill a certain person, but by
mistake or inadvertence kills a different person, the crime, if
any, so committed is the same as though the person
originally intended to be killed had been killed.
i. LOGIC- Same mens rea ( moral bame) and same
harm
b. Variation of the Bystander Cases : Intent to kill one yields
multiple victims
i. Case 1: D attempts to kill only A, but both A and
bystander B are killed; D is charged with intentional
murder of both A and B (Birreuta)
a. Issues/policy? is D the same as
morally culpable to someone who
intended to kill 2 people?
ii. Case 2: D attempts to kill only A, but bystander B is
killed instead and A is injured; D is charged with
second degree murder of B and attempted second
degree murder of A
c. In the absence of transferred intent: there would still be
attemoted murder to A BUT some kind of manslaughter to
B because he did not intent to kill him.
d. Transferred intent has only been applied do the detriment
of criminal not to help them.
ii. KNOWLEDGE
1. If the element involves the (1) nature of his conduct or (2) the
attendant circumstances, he is aware that his conduct is of that
nature or that such circumstances exists (actual knowledge
subjective); and
2. If the element involves a (3) result of his conduct, he is aware
that it is practically certain that his conduct will cause such a
result (subjective).
3. A person has knowledge of a material fact if he:
a. Is aware of the fact
b. Or correctly believes that the fact exists.
4. Willful Blindness or deliberate ignorance:
a. When knowledge of the existence of a particular fact is an
element of an offense, such knowledge is established if a
person
i. is aware of high probability of the existence of the
fact in question and
ii. deliberately fails to investigate in order to avoid
confirmation of fact

iii. RECKLESSNESS
1. Diff than criminal negligence in the actors state of mind in regard
to the risk. ( SUBJECTIVE)
a. Recklessness requires that the actor disregarded a
substantial and unjustifiable risk of which he was aware.
iv. NEGLIGENCE
1. Actor acts negligently when
a. he inadvertently (does not involve a state of awareness)
b. creates a substantial and unjustifiable risk of (degree of
seriousness of risk)
c. which he ought to be aware (involves a gross deviation
from the care that would be exercised by a reasonable
person in his situation).
2. Objective standard: Actors perceptions do not matter; rather, the
jury examines the risk whether it was substantial and
unjustifiable in terms of an objective view of the situation as it
actually existed.
3. Moral culpability is whether the failure of the defendant to perceive
the risk justifies condemnation.
II. Strict liability crimes
a. DONT have to show mens rea & Precludes mistake of facts defense
b. Judicial Treatment of S/L Crimes: Negative Presumption
i. Factors for overcoming presumption against S/L crimes:
1. (1) statutory crime is not derived from common law;
2. (2) there is an evident legislative policy that would be undermined
by a mens rea requirement;
3. (3) the standard imposed by a statute is reasonable and
adherence thereto properly expected of a person;
4. 4) the penalty is small;
5. 5) the conviction does not gravely damage.
c. EXAMPLES:
i. Public Welfare Crimes
1. Generally refers to crimes punished lightly, i.e., with fines and no
incarceration
2. Regulate dangerous or deleterious devices or products or
obnoxious waste materials
3. Heighten the duties of those in particular industries, trades, or
properties that affect public health, safety, or welfare
a. Examples:
b. Unregistered grenades
c. Opium derivatives
ii. Statutory Rape
1. Contains mens rea with regard to the actus reus of engaging in
sexual intercourse that is intentional
2. S/L arises with respect to the attendant circumstances with a
minor -- D can be guilty even if he did not know that the victim
was under-age and in fact believed (even reasonably) that she/he
was over-age.

III. Mistake of fact

a. Helps to think of mistake of fact in terms of mens rea; that is, a mistake of fact
can negate the mens rea either
i. (1) in the culpability sense (the person is not morally blameworthy; or in
the
ii. (2) elemental sense (the person did not possess the specific state of
mind required by the statute.)
b. It is not an affirmative defense but a case-in-chief defense D may still be the
one producing the evidence of mistake, but it is still the prosecutors job to
persuade the fact-finder that despite the mistake, the mens rea elements of the
crime have been met beyond a reasonable doubt.
c. Specific Intent: ( murder) The defendant is not guilty of an offense if his
mistake of fact negates the specific-intent portion of the crime negating the
element of mens rea. Still requires that mistake be in good faith, even if
unreasonable.
d. General Intent: (rape) Generally, a person is not guilty if his mistake of fact
was honest (good faith) and reasonable negating the moral blameworthiness
of mens rea.
e. Strict liability: under no circumstances does a persons mistake of fact negate
his criminal responsibility.
IV. Mistake of Law
a. Generally, not available as exculpatory, except:
i. When a person reasonably relies on an official interpretation of the law
that turns out to be erroneous (entrapment by estoppel)
ii. When knowledge that the prohibited conduct is unlawful is an element of
the crime (legislative exception).
iii. When a person lacks fair notice of a legal duty imposed by law in
violation of due process (due process exception)
b. Entrapment by Estoppel
i. Generally:
1. Available only when the reading of the law is mistaken.
2. Not available to S/L crimes
3. Affirmative defense: D must prove entrapment by estoppel with
a preponderance of the evidence.
ii. A person is not excused for committing a crime if she relies on her
own erroneous reading of the law, even if a reasonable person even
a reasonable law-trained person would have similarly misunderstood
the law
iii. A person is excused if she reasonably relies on an official
statement [see next slide] of the law, later determined to be
erroneous, obtained from a person or public body with responsibility
with the interpretation, administration, or enforcement of the law defining
the offense.
1. For erroneous statement of law to be official, it must be
contained in:
a. The text itself of statute or other enactment: (Note: preofficial interpretation) note, this only ways if the statute
actually permitted his conduct and this only happens if a

subsequent judicial decision affirms that the reading of the

statute by the D was correct.
b. A judicial decision of the highest court in the jurisdiction,
even if later determined to be erroneous.
c. An official interpretation of the law (later determined to be
erroneous) secured from a public officer in charge of its
interpretation, administration, on enforcement
c. Ignorance of the Law and Fair Notice and Due Process (The Lambert
Exception)
i. every one is conclusively presumed to know the law.unless
there may be an exceptional case where it would be grossly unjust
to presume knowledge of the law.
ii. LAMBERT CASE: A felon has to register if not punished
1. Actus reas- remaining state for 5 days without registering
2. Mens reas- non so its SL
3. Didnt know if the law so she was excused.
V. Statutory Mistake of Law
a. In a few cases, Congress legislates to soften the impact of the common-law
presumption against an ignorance or mistake of law defense by making intent to
violate the law an element of the crime.
b. Generally, the statutory language is to willfully or knowingly violate the
proscribed conduct
i. Willfully is translated to mean the voluntary, intentional violation of a
known legal duty, which is a specific intent mens rea (i.e., subjective).
ii. it allows a bona fide and reasonable misunderstanding of the law.

CAUSATION
FOR EXAM: No causation analysis in a rape statute only if murder statute
Causation only for result crimes (murder)
I.

ACTUAL CAUSE ( CAUSE-IN FACT) 2 rules:

a. Aggravating cause But for TEST : The result would not have happened in
the absence of the defendants conduct.
b. Substantial factor TEST: When 2 people independently commit 2 separate acts
that alone would be sufficient to bring about the harm if cause-in fact of
bringing about the result.
i. The initial wound was mortal but if the 2 nd wound accelerated it then also
a cause.
c. EX: Vehicular Homicide are analyzed the same as murders.

II. PROXIMATE CAUSE

a. A person of event can be a actual cause without being a proximate cause
b. Intervening Causes: exists after the Ds voluntary act or omission and
BEFORE social harm occurs.
i. An act from God
ii. An act from an independent 3rd party, which accelerates or aggravates
harm

iii. An act or omission f the victim that assists in bringing about the outcome.
c. POLICY: considers matters of fairness of whether it is proper to hold D liable.
d. Relevant Factors to take into account:
i. De minimis contribution to social harm factor
1. The law generally will not treat a very minor but-for-cause legally
responsible for the result when there is far more substantial case
to whom responsibility can be attached.
ii.

the intended-consequence doctrine

1. If an intentional wrongdoer [applies only to intentional crimes]
gets what she wanted [the result she wanted in the manner that
she wanted it], she cannot escape criminal responsibility even if
an unforseeable event intervened.\
2. Construed narrowly- if doesnt dies in manner intended then not
responsible
3. HYPO: M wanted death of her young son, V. M procured poison
and furnished it to N, Vs nurse, in the guise of medicine. M
instructed N to give V a teaspoonful (a lethal dose) of the
medicine. N did not do so but she left the potion nearby. Later, Y,
Vs sister, discovered the potion and innocently gave it to V, who
died.
a. Yes mother still responsible
iii. the omissions factor
1. omissions will not cut off liability
2. HYPO: Consider A picks up hitchiker V, robs V and shoots him in
the leg, and leaves in the middle of the desert lost and bleeding
from a nonmortal wound. V calls his wife for help with his cell
phone, which then dies (no battery). Vs wife, who wants her
husband dead because he is an alcoholic and a wife beater, does
nothing. V freezes to death while waiting for help.
a. Could argue that duty policy trumps over this factor.
iv. Forseeablity: the responsive/coincidental factors
1. Responsive: Whether the intervening cause was responsive
(dependent) to Ds acts i.e. it occurs in reaction or response to
defendants prior wrongful conduct.
a. Usually involves actions by the victim to avoid harm,
actions of a bystander to rescue victim, or actions by
medical personnel in treating the victim.
i. EX: D seriously wounds V and V is taken to hospital
where he receives poor medical treatment and dies.
b. Generally, the rule is that the defendant is the proximate
cause, unless [limited exception] the intervening cause is
extremely unusual or bizarre.
2. Coincidental: Whether the intervening cause was coincidental
(or independent) from Ds actsA force that does not occur in
response to the initial wrongdoers conduct.
a. Ds act merely puts the victim at a certain place at a certain
time [being at the wrong place at the wrong time]
i. EX: D wounds V, and V is taken to hospital for
medical treatment, where V is killed by D2, a

mentally disturbed patient who is running through

the hospital killing everyone.
b. Generally the defendant is not the proximate cause,
unless the intervening cause is foreseeable.
v. the apparent-safety
1. When a Ds active force has come to rest in a position of
apparent safety, the court will follow it no longer
2. HYPO: D threatens to kill V. V flees by going out into the freezing
cold and reaches a place of safety (e.g., the home of a friend) but
V chooses to stay outside and freezes to death. D is no longer
guilty because Vs choice to stay out in the freezing cold after
reaching a point a safety is the proximate cause of death.
vi. The Free-Will of the victim
1. Whether the intervening act involved the free, deliberate, and
informed conduct of a third party [including the victim]. If so, then
the defendant is more likely to be absolved of responsibility.
2. When intervening cause is a natural force or the actions of a
person whose conduct is not really free, then courts are more
willing to find causation.
3. Note: This is not the same as contributory negligence in civil law.
e. Note: Decision-makers (judges or juries can choose among these factors; there
is no universally accepted doctrine)
CONCURRENCE
a. Generally, mandates a connection between actus reus and mens rea.
b. Two types of connection:
i. Temporal: Whether mens rea was present at the same time D performed
the actus reus AND
ii. Motivational: Whether the mens rea was the motivating force behind the
actus reus.
c. The Continuing act doctrine: The actus reus are not seen as separate but as
continuing acts to achieve concurrence.
d. In an exam mention it as an element and then say why there is not a problem.

CRIMINAL HOMICIDE
I. What is human life?
a. Common law- Say a human born alive.
i. Ex: So if the baby dies instantly after the mother is shot, then no
homicide has occurred. However, if baby is expelled from womb alive
then there has been homicide.
ii. With medical advances now it is possible to determine the fetus chances
of being born alive and reason for death.
b. Now, an increasing number of jx include fetus at Human Beings
II. What constitutes death?
a. Common law- traditionally said that death depended on the heart and lungs.

b. Now with the development of life support and organ donation ) keeping organs
artificially alive) this is unsatisfactory.
c. Majority of jurisdictions adopt the Uniform Determination of Death Act, which
recognizes brain dead, as being dead.
III. Year and a Day Rule
a. Common law- A D may not be prosecuted for criminal homicide unless the
victim dies within a year and a day from inflicting the fatal injury.
b. Now with medical life support and with med to determine the cause of death
with relative precision, the year limit has been expanded.
IV. Murder
a. Common Law def: The unlawful killing of another human being WITH malice
aforethought.
b. Malice def:
i. A person who has any of the following states of mind:
1. Intention to kill a human being
2. Intention to inflict serious body injury on another
3. An extremely reckless disregard for the value of human life.
(depraved heart)
4. The intention to commit a felony during the commission of which
the death results ( felony murder)
V. Manslaughter
a. Common Law def: The unlawful killing of another human being WITHOUT
malice aforethought.
b. Traditionally there are 3 types:
i. Voluntary MS- Intentional killing committed in sudden a heat of passion
as a result of provocation.
1. Functions as a partial defense that defendants introduce.
2. Defendants must prove (normally with a preponderance of the
evidence):
a. that there was adequate provocation?
b. that killing was committed in the heat of passion?
c. that the killing was committed before the killer had the time
to cool off?
d. that there a causal connection between the provocation
and the passion and the act?
3. Provocation
a. Three approaches:
A. The early common law (categorical test)
1. Categorical test limits provocation if and only
if one killed in response to:
a. An aggravated assault or battery;
b. The observation of a serious crime
against a close relative;
c. An illegal arrest;
d. Mutual combat;
e. Catching ones wife in the act of
adultery;
2. Expressly excluded from the doctrine i.e., -not adequate provocation where:

a. A trivial battery
b. Learning about (but not observing)
adultery
c. Observation of the sexual
unfaithfulness of a fiancee or other
unmarried sexual partner;
d. Mere words, except in limited
circumstances.
3. Test left little discretion to jury; most
categories treated as a matter of law, rather
than a matter of fact.
B. The modern reasonable person test
1. Can a killer ever be a reasonable person?
a. More accurate to describe the
objective character in this context as
an ordinary person who sometimes
(reasonably) acts out of uncontrolled
emotion rather than reason
2. Should reasonable person be subjectivised?
To consider such factors as:
a. age, sex? Education?
b. special groups? Black victims facing
racism; gay men facing homosexual
taunting (i.e., given past
discrimination);
c. What about a homophobic defense?
d. Cultural differences.
e. Should it turn on the reasonableness
of the cultural belief or phobias?
f. individuals past history/trauma?
g. Persons with emotional or physical
disabilities/illnesses, including
alcoholism, severe depression?
h. genetic predisposition to anger.
3. Juries must find that: (Note: jurisdictions
vary on how much control juries have in the
determination).
a. the defendant acted in the heat of
passion;
b. the heat of passion was provoked by
an act or event that would also
provoke a reasonable person in the
defendants shoes to lose self control;
c. the defendant did not have sufficient
time to cool off between the
provocative act or event and the killing;
d. causal connection between the
provocation and the killing
4. The mere words rule survives under the
reasonable person test, although also with

exceptions. ( they are limited to words

accompanied b conduct)
C. The Model Penal Code
b. Who should decide what is adequate provocation?
A. Judges used to now juries do
ii. Involuntary MS1. Unintentional killing that is a result of an act, lawful in itself, but in
an unlawful manner, and with due caution of circumspection.
(homicide committed in negligent manner)
2. CRIMINAL NEGLIGENCE:
a. Death that results from Gross deviation from the standard
of care or recklessness (i.e., more than ordinary civil
negligence)
b. Today, most jurisdictions distinguish criminal negligence
from civil negligence based on
A. Severity of risk: Substantial and unjustifiable
B. Degree of awareness of risk generally a gross
deviation from the ordinary standard of care.
C. Social Utility of actors conduct.
c. It is distinguishable from depraved heart because it is
purely objective such that ill-motive or ill-will is not
necessarily involved (implied) from the risk-taking.
3. Unintentional killing that occurs during the commission or
attempted commission of an unlawful act .
a. BUT if the unlawful act is amounted to a felony then it is a
murder.
VI. Degrees of Murder
a. Common Law
i. First step of analysis is whether a murder (as opposed to manslaughter)
has occurred.
ii. Second step is whether any of the conditions (usually listed in the
statute) for first degree murder exists, such as:
1. The murder involved premeditation and deliberation,
2. Was committed using a means specified in the first degree murder
statue, such as lying in wait, poison, or, torture,
3. Or the murder occurred during the commission or attempted
commission of an enumerated felony (i.e., rape, robbery, burglary,
or arson).
iii. Meaning of Premeditation and Deliberation
1. Not synonyms, although many courts treat them as the same.
2. Premeditation: Killer must have reflected upon and thought
about the killing in advance [Quantity].
a. States are split on the amount of time required to
premeditate.
A. Some courts state that is could be in the time it
takes to blink an eye (which blurs premeditation
and intent);
B. other states require that it takes some appreciable
time, without stating how much.

3. Deliberation: Quality of the accuseds thought process: A killing

undertaken with a cool head weighing the reasons for an
against the action and considering the consequences of the
action.
4. Note: A person who deliberates, must necessarily premeditate.
Yet, a person who premeditates, may not necessarily deliberate.
5. Examples of inference of premed/delib
a. Want of provocation on the part of the deceased;
b. Conduct or statements of the defendant before and after
the killing; i.e., attempts to hide the crime.
c. Threats and declaration of the defendant before and during
the course of the occurrence giving rise to the death of the
deceased;
d. Ill-will or previous difficulty between the parties (motive)
e. The dealing of lethal blows after the deceased has been
felled and rendered helpless;
f. Evidence that the killing was done in a brutal manner.
g. murder committed in a statutorily specified manner (poison)
h. Willful deliberate and premeditated killing
i. Homicide during perpetration or attempted perpetration of
felony. (arson, rape, robbery, burglary)
nd
iv. 2 degree murder: lesser sentence is imposed
1. All other forms of murder.
a. Intentional murders that are not premeditated and
deliberate
b. Reckless ( depraved heart)
A. Extreme indifference to human life
B. The accused does not INTEND to kill her victim;
but malice is implied bc there is a wanton and
willful disregard of the likelihood that the natural
tendency of the Ds behavior is to cause death or
great bodily harm.
C. Objective or Subjective?
1. Most courts and statutes require proof that
Actor subjectively knew that he/she was
taking an unjustifiable risk to human life
2. A few jurisdictions, however, consider it
enough that D should have been aware of
the serious risk to human life [objective]
Note: how is this different from
involuntary manslaughter?
a. RECKLESS: if she consciously
disregards a substantial and
unjustifiable risk to human life. When
the recklessness is extreme and the
justification is weak the actor has
committed a murder ( depraved heart)
b. INVOLUNATRY MANSALUGHTER:
When a person should be, but is not,

aware that her conduct is very risky

( and unjustifiably so) criminal
negligence
D. The awareness, however, whether subjective or
objective needs to be as to a risk of death, not
simply severe injury.
E. EX: shooting into an occupied room, driving car in
high speed while intoxicated and kills pedestrian,
lethal omission ( failing to feed child).
c. Killing committed during felony not listed above
d. Intent to inflict grievous bodily injuries killings
VII. FELONY MURDER RULE
a. A felony + a killing (even an unintended one) = murder
b. The type of felony determines the degree of the murder
i. E.g., arson, rape, burglary, mayhem, sexual felonies = first degree
(usually listed in the statutes)
ii. Non listed felonies lead to second degree convictions
c. No need to prove mens rea; i.e., a type of transferred intent, except the
intentionality to commit the felony transfers to the homicide It applies whether
the felon kills the victim intentionally, recklessly, negligently or accidentally
d. State must prove the elements of the underlying felony beyond a
reasonable doubt.
e. A temporal Concurrence: in pepretation of or in the furtherance of the felony.
f. Causation analysis still applies.
i. When the murder is committed by a non-felonious actor (e.g. a police
officer). Then, courts either do not apply the felony murder rule the
Agency Approach -- (essentially presuming no causation), or apply a
proximate cause analysis.
ii. Note: Some legislatures presume causation (in the statute) even when
the killing is done by a third party (see note 3, page 342).
g. Rationale for Rule:
i. Proliferation of felonies, particularly nonviolent ones
ii. Separation of powers:
1. Proportionality of punishment as an individual right (particularly in
capital cases).
2. Legislative priority (at least when the rule has been expressly
codified).
iii. Policy
1. Retribution:
a. Is the moral wrong the same if a person only intended to
commit the felony, not the murder?
b. Against: it eliinates mens rea bc it is SL so there is no
culpability
2. Deterrence
a. people are deterred from committing felonies because of
the rule
b. people are deterred from using violence in the commission
of felonies because of the rule
c. Against: Can truly accidental deaths be deterred?
3. Transferred Intent

a. Against: the mental patterns of committing a felony and

killing are distinct and separate.
4. Administrative efficiency through a simpler rule
a. Greater clarity
b. Aids in the allocation of criminal justice resources.
5. Minimizes utility of perjury
a. If person is committing a felon this rule stops them from
saying it was an accident to kills someone.
h. LIMITATIONS to felony- murder Rule:
i. Inherently-dangerous felony limitation: Felony murder rule only
applies to inherently dangerous crimes.
1. Applies to the second-degree felony rule, which is a judge-made
rule. So not the ones that are listed in the statute.
2. Two approached
a. Abstract: the courts will look at the statute rather than the
facts of the case [The Categorical Approach] (e.g.,
California)
A. TEST: whether the crime by its very nature cannot
be committed without creating a substantial risk
hat someone will be killed.
B. EX ( CA- inherently dangerous):
1. Shooting at an inhabited dwelling
2. Poison with intent to injure
3. Arson of a motor vehicle
4. Grossly negligent discharge of a firearm
5. Manufacturing meth
6. Kidnapping
7. Reckless or malicious possession of a
destructive device
C. EX ( CA- not inherently dangerous)
1. Practicing medicine without a license under
conditions creating a risk of great harm or
death (note 1, p. 4)
2. False imprisonment by violence, menace,
fraud, or deceit
3. Posession of a concealable firearm by a felon
4. Possession of a sawed-off shotgun
5. Prison escape
6. Grand theft
7. Conspiracy to possess methedrine
8. Extortion
9. Child endangerment or abuse
b. Or is fact-specific.
ii. The independent felony (or merger) limitation
1. The felony-murder rule applies ONLY if the predicate felony is
independent of the homicide.
2. If the felony is not independent then the felony merges with the
homicide and cannot serve as the basis for a felony-murder
conviction.
3. Rule: A felony-murder instruction may not be properly given when

a. it is based upon a felony which is an integral part of the

homicide and which the evidence produced by the
prosecution shows to be an offense included in fact within
the offense charged (underlying felonies elements are
integral to the crime of murder)
b. The underlying felony has as its principal purpose an
assault on the person of the victim (the assaultive nature)
c. The underlying felony cannot have an independent
felonious purpose
4. Policy: Precludes the jury to consider mens rea in crimes that
should have been charged as murder
5. EXAMPLE- doctrine has applied (aka removed the felony murder
rule)
a. Assault with deadly weapon (underlying felony) + death of
the intended person
A. If intent was to rape then it would not apply
b. Burglary when the felonious intent is deadly assault
(underlying felony) + death of the intended person
c. Burglary when the felonious intent is deadly assault
(underlying felony) + death of a third person
6. EXAMPLE- doctrine has NOT applied (aka removed the felony
murder rule)
a. Furnishing narcotics + death
b. Driving under the influence of narcotics + death
c. Poisoning food, drink, or medicine + death
d. Armed robbery + death
e. Kidnapping + death
f. Child abuse by malnutrition and dehydration + death
iii. Rest Gestae Requirement
1. In order for the felony-murder rule to operate the homicide must
occur within the things to commit the felony
a. Time & distance: There has to be close proximity between
the felony and the murder.
A. Can continue even after the commission of the
crime while the felon flees and reaches a place of
temporal safety.
B. However, it is not operative if a car thief
coincidentally kills someone when he runs a stop
sign in another state.
C. The time component is measure when the killing
conduct occurs not the death.
b. Causation Req
A. There must be a casual connection between the
felony and the murder.
iv. Killing by a non-felon
1. It occurs during the commission of the felony but not of
furtherance of the felony.
2. EX: Burglar shoots in the air and the cashier shoots back killing a
victim.
3. 2 Approaches:

a. Agency: (majority) Felony-murder rule does not extend to a

killing, although growing out of the commission of a felony,
if directly attributable to the act of another that the D or
those associated with the crime.
A. Exception: A person is responsible for the acts of
another is the actor-shooter is functioning as the
agent of the non-shooter.
b. Proximate Causation: ( minority) A felon is liable for any
death that is the proximate result of the felony, whether the
shooter is a felon or a 3rd party shooter.

RAPE
I. Common law rape is a general-intent offense
a. No requirement to show D has specific intent to rape
b. Must show only that D possessed a morally blameworthy state of mind
regarding the females lack of consent .
c. Thus, D is not guilty of rape if D entertained a genuine and reasonable belief
that female voluntarily consented to intercourse (mistake-of-fact defense).
II. Traditional Elements of Rape:
a. Sexual intercourse/penetration (actus reus)
b. Achieved forcibly, (actus reus) and
c. Against the will (non-consent) of the victim (female) (mens rea)
d. Note: May imposed on victims a resistance requirement for state to prove force
and to prove nonconsent; a type of victim actus reus requirement of resistance.
e. Does not apply to married couples.
III. Non-traditional Elements of Rape:
a. Prosecution against nonforcible, but nonconsensual, sexual intercourse
i. (e.g., sex with an drugged female; sex through fraud).
ii. i.e., no resistance requirement
b. Includes rape against males.
c. Includes all forms of sexual penetration (i.e., sodomy or even forced oral sex)
d. Abolishes the marital immunity rule
IV. The FORCE requirement:
a. The vast majority of states require a D to exert force against the victim for a
rape conviction. About sixteen do not. .
b. Typically by force proves nonconsent, but not vice versa i.e. nonconsent
does not prove force.
c. RULE: Requires a showing that D used or threatened to use force likely to
cause serious bodily harm to the female or possibly a third person.
i. the threat must be proximate to the alleged rape.
1. In the case of threats:
a. Victims subjective fear is not enough; fear must be
reasonable, unless D is shown to have knowingly taken
advantage of Victims subjective fear.
b. Must generally involve a threat to cause physical harm to
victim (or to a third party).
V. The Resistance requirement:

a. Generally
i. requires a showing that victim resisted or that she was prevented
from resisting by threats to safety.
ii. Jurisdictions vary on degree of resistance required (e.g.., to the utmost,
to make it evident to the perpetrator, reasonable resistance.)
iii. On exam show 1 degree but just say it could vary throughout jx
b. linked to the force requirement:
i. EX: the greater the force, the less resistance required And vice versa;
the lesser the force, the more resistance is required.
c. Linked sometimes to the proof of nonconsent, particularly when consent is at
issue
i. EX: the lesser the resistance, the more likely there was consent And vice
versa, the more the resistance, the less likely there was consent.
d. Not enough to say that by no resisting she consented
VI. Issues with rape statutes
a. The importance of sexual autonomy
b. Due process concerns; some concern over crying wolf; but more over mistake
of fact when victims are ambiguous.
c. Evidentiary concerns; the she-said;he-said conundrum and the absence of third
party witnesses.
d. Gender biases:
i. Good women fight for their honor.
ii. Strong women fight back.
VII. The Law in Transition
a. FORCE- Against it
i. Rape is a violation of sexual autonomy and personal privacy, not simply
battery
ii. Force, therefore, is only one factor relevant to show lack of consent.
iii. Trend:
1. Some jurisdictions have recognized some forms of non-forcible
intercourse as rape. Others have relaxed the definition of by
force.
b. RESISTENCEi. Against it: Some women freeze, dangerous, its an uncommon response
ii. For it: Feminist say Resistance as fighting for honor
iii. Trend:
1. Few jurisdictions have abolished; most have only lessened its
significance. However, the definition of rape as nonconsensual, in
practice, means that evidence of resistance is still relevant.
VIII. No or the absence of yes as force?
a. The Berkowitz standard:
i. Force: ( no alone is not enough) Force can include not only physical
force or violence but also moral, psychological or intellectual force to
compel a person to engage n sexual intercourse.
ii. Reasonable person standard: whether or not sex was forcibly
compelled is determined under the totality of circumstances and
measured against a person of reasonable resolution. Factors to be
taken into account (age; mental and physical condition; atmosphere;
position of authority over victim; etc).

iii. Relationship to NO: verbal resistance is only sufficient when coupled

with a threat of forcible compulsion, mental coercion, or actual physical
force of a type inherently inconsistent with consensual sexual
intercourse.
b. The MTS Standard
i. Force: Does not require the demonstrated nonconsent of the victim, or a
resistance requirement.
ii. Relationship to NO: any act of sexual penetration engaged in by the
defendant without the affirmative and freely-given permission of the
victim to the specific act of penetration constitutes the offense of sexual
assault. Therefore, physical force in excess of that inherent in the act of
sexual penetration is not required for such penetration to be unlawful.
iii. Determining consent: Consent may be inferred from acts or
statements reasonably viewed in light of the surrounding circumstances.
IX. Withdrawn Consent
a. Generally, withdrawal of consent nullifies earlier consent. However, lingering
issues remain
b. Probably no longer valid in all/most jurisdictions
i. The diminished outrage doctrine: The Vela logic (the lack of consent
at the moment of initial penetration is crucial to the crime of rape
because the outrage of rape is about the nonconsensual violation of a
woman)
ii. The Primal Urge Doctrine: Males need a reasonable amount of time to
withdraw because a males primal urge to reproduce is aroused the
moment he penetrates.
iii. Still valid questions/variations in the doctrine
c. Should withdrawal of consent post-penetration a higher evidentiary standard to
prove then non-consent pre-penetration?
d. Should a higher standard of force apply?
X. The Mens Rea
a. The mens rea of rape is that D intended to have sex without the consent of the
victim.
b. Thus, a victim can be raped (i.e., be subjected to sex against her will) but not
by a rapist (because the person reasonably and in good faith believes the
victim consented)
c. MISTAKE of FACT ( general intent crime)
i. Usually a question of policy.
ii. The general rule is that a person is not guilty of rape if her
entertained a genuine and reasonable belief that the female
voluntarily consented to intercourse with him.
1. Defendant was in fact mistaken as to consent (subjective)
2. His mistake as to consent was reasonable (objective).
d. When there is force or threats to use force likely to cause bodily injury a
normal man with intelligence would almost always know that female is not
consenting however there are now extreme sex was ( force is wanted) so force
does not mean no consent.

e. When there is no grave force or resistance Male may reasonably believe she
is consenting and thus does not have a blameworthy and culpable state of
mind.
f. JURY instruction for Mistake of fact:
i. Only be given when there is substantial evidence of equivocal
conduct ( on females part) that would have led a defendant to
reasonably and in good faith believe consent existed where it did
not.
1. substantial :
a. The majority in Williams the evidence must be sufficient
to deserve consideration by the jury.
b. The dissent in Williams it must allow a reasonable jury to
make a determination favorable to the D
c. Williams case: relied on the testimony so its a basis of
credibility. They decide not to give instruction to jury. Aldana
thinks its wrong because should have allowed jury make
this factual decision.
ii. Similar to Ds burden of proving preponderance of the evidence.
XI. Rape Shield Statutes
a. Enacted in every state
b. Restrict Ds ability to cross-examine victims or to introduce evidence regarding
prior sexual conduct with third parties or reputation for sexual conduct,
unless it is relevant to the victims credibility
i. EX: evidence shows that V engaged in similar patterns of conduct
previously
ii. evidence shows that V has filed false accusations of rape in the past.
c. Sixth Amendment challenges the right to confront the accuser to rape shield
laws.
d. D bears the burden of demonstrating why the probative value of the
evidence outweighs the prejudicial effect on the victim. ( thats the issue for
the exam)
e. POLICY:
i. Prevents harassment and humiliation of victim
ii. Usually irrelevant to the consented the time in question
iii. Keeps jury focused
iv. Promotes effective law enforcement encouraging victims to sue.

Defenses
I. PROCEDURE IN CRIMINAL TRIALS:
a. The prosecution has to prove ALL elements of the crime beyond a reasonable
doubt.
b. Then the burden of persuasion is on the D regarding criminal defenses.
i. EXCEPTION: Failure of proof defenses.
II. TYPES OF DEFENSES:
a. Failure of Proof: ( case-in-Chief defense)

i. D introduces evidences that shows that the prosecution failed to Prove

and essential element. Then the prosecution has the burden to
disprove the Ds failure of Proof claim.
ii. EX: mistake of fact ( Mens rea?) , unconsciousness( voluntary act?), alibi
( Actus reus?)
b. Affirmative Defenses
i. D concedes that State has met burden of proof on the elements of the
crime However, D seeks acquittal or lenience for other reasons that
justify or excuse the crime.
1. Justification suggests D did the right thing (i.e., self-defense).
2. Excuses suggest D is not blameworthy or is less culpable for
some other reasons (i.e., insanity)
ii. D bears burden of proof usually by a preponderance of the
evidence.
iii. Justification
1. Conduct that is otherwise criminal is under the circumstances is
socially acceptable and does not deserve criminal liability.
Focuses on act and seeks to show that the result was not wrong.
2. EX: Self-defense , Public Duty Defense (e.g., military, police
force), Necessity , Consent
iv. Excuse
1. Admit that the deed may be wrong but excuse the actor because
the actor is not morally culpable for his wrongful act.
2. EX: insanity Duress, Mistake of fact, Mistake of law, Intoxication ,
Infancy, Entrapment, Diminished Capacity, Provocation
v. Offense Modification
1. While the actor has apparently satisfied all elements of the offense
charged, he has not in fact caused the harm or evil sought to be
prevented b the statute defining the offense.
2. EX: Kidnapping and extortion.
vi. Nonexculpatory
1. Reasons unrelated to dangerousness, culpability, and
wrongfulness, they involved public policy extrinsic to the
substantive criminal law doctrine.
2. Ds conduct can be harmful and blameworthy but the societal
interest arises from his conviction not the conduct.
3. EX: statute of limitations , diplomatic immunity, judicial, legislative,
and executive immunities
III. Justification v. Excuse: Why does it matter?
a. Many jx dont distinguish it. (MPC)
b. They both result in acquittal of the D.
c. REASONS TO DISTINGUISH:
i. Sending a Clear Moral Message
1. Excuse is not proper conduct so it may falsely characterize it that
way.
ii. Providing Theoretical Consistency in the Criminal Law

1. Can help lawmakers coherently define criminal defenses.

2. EX: heat of passion suffers from both justification and excuse.
iii. Accomplice Liability
1. Because excuse relates to a condition of the actor, this should not
relieve the accomplice bc it is nondelegable. However, justification
is delegable.
iv. Burden of Proof
1. If D is allocated burden of persuasion regarding a justification she
may be punished even if the jury has not satisfied beyond a
reasonable doubt that she has done anything wrong. (This burden
is not reasonable)
2. If allocated burden of persuasion for an excuse, all the elements
of crime have been proved BUT D has to show jury she is not to
blame for her moral conduct (this burden of proof is reasonable)
3. Mullaney v. Wilbur (1975) (declaring Maines murder statute
unconstitutional because, once the state proved intent, it shifted
the burden to D to prove that he acted in the heat of passion upon
sudden provocation)
a. Maine Statute: Unlawful killing of a human being with
malice aforethought, either express or implied. Malice
is implied from any deliberate cruel act committed by
one person against another suddenly or without a
considerable provocation.
i. It is an or statement that requires the STATE TO
HAVE THE BURDEN to prove malice and malice
can be implied either by deliberate or by
provocation.
4. Patterson v. New York (1977) (upholding New Yorks extreme
emotional disturbance statute which treated it as a defense and
required D to prove it by a preponderance of the evidence).
a. New York Statute: Murder involves two elements: (1)
intent to cause death of another persons; and (2)
causing the death of such person or of a third person.
Manslaughter is defined as intentionally killing another
person under the circumstances which do not
constitute murder because he acts under the influence
of extreme emotional disturbance.
i. Burden is on D because the state just has or prove
(1) and (2). The manslaughter def is separate and a
way for D to mitigate.
5. Example:
a. Nevada statute
b. 1. Manslaughter is the unlawful killing of a human being,
without malice express or implied, and without any mixture
of deliberation.
c. 2. Manslaughter must be voluntary, upon a suddent heat of
passion, caused by provocation apparently sufficient to
make the passion irresistible
d. NRS 200.050 Voluntary Manslaughter

i. In cases of voluntary manslaughter, there must be a

serious and highly provoking injury inflicted upon the
person killing, sufficient to excite an irresistible
passion in a reasonable person, or an attempt by the
person killed to commit a serious personal injury on
the person killing.
e. This is like NY because the Manslaughter is separate so
the D has the burden to prove provocation.
IV. JUSTIFICATIONa. What justifies conduct that ordinarily would be criminal, but because of
special circumstances, is not wrongly (as a matter of law) and even,
affirmatively desirable (morally good)?
i. Principles:
1. Public Benefit Theory: Society benefits from the actors conduct
(e.g., when an officer kills a dangerous felon attempting to flee)
2. Moral Forfeiture Theory: certain rights may be forfeited (not
waived but given up through conduct) by the holder of the right
under certain circumstances (e.g., if I try to kill another, I lose my
right to life if that person kills me in self-defense)
3. Moral Rights Theory: a right to protect a particular moral interest
(e.g., I have a right to shoot to kill a burglar who threatens my life
or that of my family)
4. Superior Interest/Lesser Harm Theory: When the interest of
the actor outweigh
b. Underlying principles:
i. There must be a triggering condition or circumstances that must exist
before a justification is triggered (e.g., the use of force)
ii. The response satisfy two requirements:
1. Necessity: The act must be necessary to protect or further the
interest at stake;
2. Proportionality: It must cause only harm that is proportional or
reasonable in relation to the harm threatened or the interest to be
furthered
a. the harm caused (e.g., the Ticking Bomb example).
V. SELF-DEFENSE:
a. The Doctrine
i. A non-aggressor The non-aggressor limitation
ii. is justified in using proportional force upon another if The
proportionality requirement.
iii. if he reasonably believes The reasonable-belief rule.
iv. such force is necessary to protect himself (and sometimes a third
party) The necessity component.
v. from imminent use of (unlawful) force by another person The
imminence requirement.
vi. Note: a minority of jurisdiction also apply a duty to retreat
requirement.
b. Aggressor
i. Common law:

1. a person whose affirmative unlawful act is reasonably

calculated to produce an affray foreboding injurious or fatal
consequences
2. one who threatens unlawfully to commit a battery upon another
or who provokes a physical conflict by words or actions calculated
to bring about an assault.
ii. Note: A issue of whether a D lost the right of self-defense in a conflict is
a matter for a jury to decide, based on a proper instruction on the
meaning of aggressor.
iii. Can an aggressor become a non-aggressor purge him/herself
of the status? Depends on type of aggressor
1. Generallly an aggressor cannot use the self-defense.
2. A deadly aggressor one who threatens deadly force must
withdraw from the conflict and be successful in communicating
this fact, either expressly or impliedly, to the intended victim.
3. A nondeadly aggressor Split
a. Majority position: Yes, when the deceased responds to the
threat of non-deadly force with a threat of deadly force.
b. Minority position: No, unless D avails himself of an obvious
safe retreat, if one exists.
iv. FORCE?
1. Deadly force intended or likely to cause, even if not intended by
actor, death or grievous bodily injury (according to reasonable
belief)
2. Nondeadly force not intended or not likely to cause death or
grievous bodily injury like minor batteries (according to
reasonable belief)
3. Note: a minor battery does not become deadly even if death
unexpectedly results; it could be considered deadly force if D
knows that person likely to die from nondeadly force.
c. The Retreat Doctrine
i. The minority of jurisdictions forbid the use of deadly force in selfdefense if safe retreat is available and he is AWARE of it given the
circumstances.
1. Some exceptions to the include:
a. When retreat is dangerous (reasonably) or appeared to be
so to the D (subjective).
b. The Castle Doctrine: No retreat required in a persons own
home and the curtilage.
i. Note: May not be available to a homeowner who is
the aggressor. (Peterson case)
ii. May not apply if both live in the same home
ii. A majority of states reject this doctrine broadly in favor of a stand his
ground doctrine (beyond the home).
d. The Necessity Component

i. Force should not be used against another person unless, and only to the
extent that, is necessary (according to the reasonable belief)
1. Generally, this means that self-defense is only available when the
threat is imminent the imminent requirement
2. It also means that a person may not respond with deadly force,
even to combat an imminent deadly attack, if some nondeadly
force will apparently suffice The proportionality requirement.
e. The Imminence Requirement
i. Generally, force is imminent, if it will occur immediately, or at once
(according to a reasonable belief).
ii. Hence, force is not imminent if an aggressor threatens to harm another
person at a later time.
1. EXCEPTION: Premptory strike:If death or serious bodily harm in
the relatively near future is a virtual certainty and the future attack
cannot be adequately defended against when it is imminent and if
there are NO reasonable alternatives, self def ought to apply.
f. The Proportionality Requirement
i. Generally provides that a person is not justified in using force that is
excessive in relation to the harm threatened (according to a reasonable
belief).
1. For example:
a. A person may use nondeadly force to repel a nondeadly
threat
b. A person may use nondeadly force to repel a deadly threat
c. A person is never permitted to use deadly force to repel a
nondeadly attack, even if deadly force is necessary to
prevent the battery.
g. Reasonable Belief Rule ( applicable to necessity, proportionalit)
i. D does not have to be correct about his or her belief that force was
necessary in order to defend against an imminent threat of unlawful
force. Rather, D can be acquitted as long as he or she reasonably
believed in the need to act in self-defense, even if her belief is
mistaken.
ii. Common law:
1. A person is justified in using force to protect him/herself if he
subjectively believes and has objectively reasonable grounds
for believing, that such force is necessary to repel an imminent
unlawful attack therefore, the belief still cannot be
unreasonable.
2. Note: some jurisdictions allow unreasonable mistake as an
imperfect self-defense claim which may reduce charges but not
lead to an acquittal.
3. Compared to MCP which says the actor believes which is
completely subjective.
iii. What can be looked at to determine reasonableness?
1. Ds personal experiences with the deceased?
a. The deceaseds reputation?
i. EX: Child molester
2. What about Ds personal experiences with third parties?

h.
i.

j.

k.

3. What about Ds other characteristics compared with the victim?

a. Age? Gender? EX: 18 year old vs 60 year old
4. What about community/geographic context?
a. Crime rates in city or neighborhood
b. Time of day.. 10 pm
c. Location of crime
5. What about Ds cultural and racial biases?
a. Harder for courts to consider so can raise as a matter of
policy(ex: democrat v republican)
6. *** look at totality of circumstances.
UNLAWFUL FORCE
i. Cannot use self defense against a police or if you are commiting a crime.
Imperfect Self-Defense
i. Self defense is a full defense
ii. Various states allow it to mitigate murder to manslaughter if dont prove
all the necessary elements for SD.
iii. EX: when one kills another bc he UNREASONABLE believes he is in
imminent fear.
Policy:
i. The aggressor forfeits his rights to life by threatening an innocent
persons life
ii. The idea of physical security that the aggressor breaches
iii. The innocent persons life is morally superior to the aggressors.
iv. Private punishment to the wrongdoer.
Risk to Innocent Bystanders
i. Transferred Justification doctrine: The Ds righ to Self-Defense is
transferred to the actual victim unless acing completely carelessly.
ii. Not an absolute rule bc of reasons against justifying death of someone
who was not culpable.

l. BATTERED WOMEN SYNDROME

i. Her symptoms learned helplessness She feels helpless bc she sees
her hubby as invincible and is hypersensible to all his acts.
ii. Challenges: should we make a doctrine on its own OR add it to one of
the following traditional doctrines?
1. Duty to retreat
2. Reasonable belief prong: should we look at her fear and
experience as a battered woman.
3. Necessity: should it be more flexible in regards to
a. imminence
b. proportionality
iii. To get jury instruction on SD:
1. a court must determine whether a jury could reasonably be
persuaded to accept the defense on the basis if the evidence was
introduced
iv. Types of killing
1. Confrontational ( woman kills during a battering incident)
a. Jury instruction on SD almost always given
2. Nonconfrontational ( woman kills hubby in her sleep)

a. Spilt but majority say no jury instruction.

i. Not imminent threat or fear for life
rd
3. Hiring a 3 party to kill her hubby
a. No jury instruction on SD allowed.
v. Evidentiary Issues
1. SOME STATES HAVE STATUTES THAT ADRESS THIS
2. Ds cant usually put the victim of homicide of trial BUT in BWS
allowed to introduce evidence of the decedents prior abusive
treatment of her.
a. This allows to show if the Ds reasonable fear given all the
prior abuses.
3. EXPERT testimony
a. Learned helplessness: helps explain why BW did not
escape
b. Helps Ds credibility by saying she is suffering from the
syndrome
i. She subjectively believed that the decedent was
about to kill her and
ii. Her belief was objectively reasonable to a person
suffering the syndrome.
iii. Their mental incapacity to make rational choices
4. POLICY
a.
b. Utilitarian: good the wife got the bad hubby out of society.
c. Retrib: good bc the hubby deserved it.
vi. NORMAN CASE:
1. A non-aggressor
a. duty to retreat
i. bad because she could have stayed at her mothers
houes
2. if he reasonably believes
a. necessary
i. proportional
1. he was sleeping and he was not being
abusive at the time.
2. Can argue also that he didnt plan to kill just
continue to abuse.
ii. imminent
1. hard bc she went back to get the gun so not
immediate.
vii. For test: apply self defense first then the battered women ( some states
have codified it)
1. Ohio look at ppt
a. She has to show proportionality showing actual abuse
b. Reasonableness is perceived by the battered women
perspective
VI. EXCUSE
a. Only going to cover Duress, intoxication, and maybe insanity
b. Its excusing the mens rea bc the situation is affecting their free choice

VII. DURESS
a. Complete defense for all nonhomicide. The party duressing is responsible for
the partys actions who under his duress.
b. Not applicable as a complete defense for murder (CL)
i. Some courts split on whether it can be mitigated down to a manslaughter
charge.
ii. Some other courts are split whether it can be raised for a felony in the
felony murder charge.
1. A person coerced to commit a felony and during that felony
unintentionally kills someone, the may raise the duress defense
as to the felony and therefore is not guilty of felony muder.
iii. POLICY: if one should die then you should die rather than the innocent
one.
c. Elements Under Common Law:
i. When a person seeks to excuse the commission of a crime because it
was committed under:
1. (1) An immediate threat of death or serious bodily injury
a. Requires evidence that threat of injury was present,
immediate, or impending
2. (2) a well-grounded fear that the threat will be carried out
(objective prong)
3. (3) No reasonable opportunity to escape the threatened harm
(objective)
a. D must show he/she had no reasonable opportunity to
escape (based on a reasonable person)
ii. Crime must be related to the duress
1. Battered woman and duress?
a. No bc the crime charged with is murder and the duress was
not to kill.
iii. Reasonableness Prong ( for escape and immediacy)
1. Takes into account health, age, size, strength that differentiates D
from the coercer.
2. Should it take into account status/hierarchy?
a. e.g., Military commander vs. soldier
i. under duress bc given an order
3. Should it take into account character fortitude?
a. Meek/pacifist constitution?
b. Battered women syndrome? See note 9.
i. Vis a vis the immediacy prong?
ii. Vis a vis the escapist prong?
iv. The actor was not at fault in exposing herself to the threat
1. EX: joining a killing group
d. ESCAPE from Intolerable PRISON conditions
i. Unger case:
1. The charged crime is escaping from prison
2. The duress was to engaged in gay sex
3. Was the duress related to the crime?
a. No bc the 3rd party is not forcing him to escape from prison
so NOT DURESS

ii. Different approach

1. Some courts say that the escapee must make a bona fide effort to
surrender as soon as duress is over. Others say its just a factor.
VIII. Intoxication
a. A disturbance of mental or physical capacities resulting from the introduction of
any substance ( illegal drugs, meds, alcohol) into the body.
b. ISSUES
i. How did the D become intoxicated?
1. Voluntarily
a. A person knowingly ingests a substance that he knows or
should know could cause him to be intoxicated.
b. One is held with common knowledge that street drugs do
not come with warranties so voluntary even if contains a diff
substance.
c. Alcoholism or addiction is still voluntary
d. RULE: self-induced intoxication is never an excuse for
wrongdoing, it is the condition it causes( clouded mental
state, unconsciousness, insanity) that may serve as
exculpatory in some situations.
2. Involuntary Intoxicationif the actor is not to blame for becoming
intoxicated
a. The person is coerced to ingest an intoxicant
b. If the person ingests an intoxicant by innocent mistake
c. Blame is inappropriate if the actor becomes unexpectedly
intoxicated from a prescribed medication
d. Pathological intoxicationa temporary psychotic reaction,
often manifested by violence, which is triggered by
consumption of alcohol by a person with a pre-disposing
mental or physical condition
e. General Rule A person who is involuntarily intoxicated is
entitled to acquittal in all of the circumstances in which
voluntary intoxication is a defense
ii. In what way does the D claim that his intoxication affected his
culpability?
1. Failure of proof defenses= lacked the mens rea required.
2. Voluntary Act- unconsciousness
a. Some courts find that although unconsciousness ordinarily
precludes criminal liability, it is not a defense if the condition
was itself brought on by voluntary consumption of alcohol
or drugs.
b. Other courts, incorporating the mens rea rules to claims of
involuntariness, allow evidence of intoxication-based
involuntariness as a defense to specific-intent offenses, but
not to general-intent crimes
c. The defendant may use their intoxication-induced
unconsciousness to prove that they did not commit the
criminal act at all
3. Insanity

a. Temporary Insanitycommon law does not recognize such

a defense
b. Fixed Insanityfixed use of intoxicants can result in a
substance-induced mental disorder that persists. The law
distinguishes between mental impairment that does not
extend beyond the period of voluntary intoxication, for
which no defense is available, and insanity resulting from
long-term use of drugs or alcohol. If the unsoundness of
mind, although produced by long-term alcohol or drug
abuse, has become fixed or settled, the general, but not
universal, rule is that the defendant may assert a traditional
insanity defense.
iii. What type of offense is the defendant charged with?
1. General
a. common law says that voluntary intoxication is NOT a
defense, however voluntary intoxication can be.
2. Specific
a. common law says that voluntary intoxication is a defense if
at the time of the crime he did not form the specific intent
requirement in the definition of the offense.
i. EX: crime of assault with intent to rape.
c. Homicide
i. D may say that because his mental faculties were clouded by intoxicants
he do not premeditate and deliberate the killing. He is then entitled to
have his crime reduced to 2nd degree.
ii. Felony murder
1. EX: robbery is a specific intent crime so if the D was intoxicated
during the robbery and a person died from a heart attack. He
could use intoxication as a defense for negating the mens rea of
the robbery and therefore not guilty of felony murder.
d. Policy for and against
i. Utilitarian deters drunkenness, protect innocent parties from injury.
ii. Retributists legislators made specific intent crime for a reason so it is
immoral to punish someone without the specific intent element