For Fall 2012 class Crim Law Outline B Crim Law

(5th Ed.) Dressler Prof Brooks

I. CHAPTER 1: INTRODUCTION ....................................................................................................................................................... 2

A. Burden of Proof on the Prosecutor ....3
B. Jury Nullification ..3

II. CHAPTER 2: PRINCIPLES OF PUNISHMENT .................................................................................................................................. 3

A. Theories of Punishment ..3
B. Utilitarianism (Cost/Benefit Analysis) 3
C. Retributivisn .4

III. CHAPTER 3: STATUTES ................................................................................................................................................................. 4

A. Principle of Legality 4
B. Statutory Interpretation .4
C. Ex Post Facto ..5

IV. CHAPTER 4: ACTUS REUS ............................................................................................................................................................. 4

A. Components of a Crime ..5
B. Types of Actus Reus Elements .5
C. Voluntary Acts .....................................................................5
D. MPC 2.01 - Requirement of Voluntary Act, Omission as Basis of Liability, Posession .6

V. CHAPTER 5: MENS REA ................................................................................................................................................................ 6

A. Definition ......................................................................6
B. MPC6
C. MPC 2.02 - Willful Blindness, High Probability of Awareness6
D. Strict Liability6
E. Mistake of Law/ Mistake of Fact ..7

VI. CHAPTER 6: CAUSATION - MPC 2.03 ........................................................................................................................................... 6

A. Actual Cause (Cause in fact)..7
B. Proximate (Legal Cause)..7
C. The Rideout Test7
D. The Velazquez Test..7
E. The MPC Test7

VII. CHAPTER 7: HOMICIDE ................................................................................................................................................................ 7

A. Introduction....8
B. Intentional Killings..8
C. Unintentional Killings....11
D. Homicide How To: Homicide - Common Law.11

VIII. CHAPTER 8: SEXUAL ASSAULT ................................................................................................................................................... 11

A. Rape...12
B. Rape - MPC.13
C. Statutory Rape a Strict Liability...14
D. Rape Culpability Factors...14
E. Rape Shield Laws...14
F. Withdrawn Consent....14

IX. CHAPTER 9: DEFENSES ............................................................................................................................................................... 13

A. Generally....14
B. Self-Defense..15

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C. Necessity....16
D. Defense of Property......16
E. Defense of Others..17
F. Duress......17
G. Entrapment...18
H. Intoxication...18
I. Insanity....19

X. CHAPTER 10: INCHOATE OFFENSES ............................................................................................................................................. 18

A. Attempts..19
B. Conspiracy..20
C. Solicitation.....21
D. Accomplice Liability....22

XI. CHAPTER 11: RULE PROOFS...22

A. Retributivism...22
B. Utilitarianism...22
C. Murder....22
D. Murder I .23
E. Manslaughter .23
F. Attempt...23
G. Conspiracy.....23
H. Accomplice Liability....23
I. Insanity Defenses..23
J. M'Naghten Test .24
K. Irresistible Impulse Test ..24
L. MPC Approach ..24
M. 9 Steps to Analysis ..24
N. Essay Example and Format 25

I. Chapter 1: INTRODUCTION
A Burden of Proof on the Prosecutor
B Jury Nullification
1. Not a right, but the power of the jury
a Butler asks for African Americans to use jury nullification as a tool of self-determination, and an operational
strategy to confront what he perceives to be pervasive racial inequities in the criminal justice system
b Black jurors have a moral obligation to exercise their power in the best interests of the black community.

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c Jury nullification was created to combat tyranny. Juries are represented by a community and if they decide to
nullify, then they are in a sense the people overruling the tyranny of an unjust law.
2. Butler Analysis
a Non-violent
i Victim: Option to nullify, but still no presumption. Apply a contextualized judgment. Left solely to
jury discretion.
ii Victimless: In favor of nullification. Presumption in favor of it. Every presumption may be weighed
and disproved
b Violent
i For violent crimes, they act as a normal juror would
ii No presumption for nullification unless someone can prove to the jury that nullification should happen,
then it should happen.
3. Kennedy: People should not take the law into their own hands, or we become a government of men as a
replacement to a government of laws

II. Chapter 2: PRINCIPLES OF PUNISHMENT

A Theories of Punishment
1. What is punishment? Kent Greenwalt - 6 Elements of 'punishment'
a Performed by, and directed at, responsible agents
b Designedly unpleasant or harmful consequences
c Blame or condemnation
d Authority to punish
e Established a rule
f Actual rule violation
B Utilitarianism (Cost/Benefit Analysis)
1. Bentham: Pain & Pleasure are our masters, all government acts should provide a social good
2. All punishment is pain so there must be justification for all punishment and thus not be:
a Groundless: No mischief to prevent
b In-efficacious: Mischief of punishment does not effectively address original offense
c Unprofitable: Mischief it produced would be greater than what it prevents
d Needless: Mischief is preventable w/o need for punishment
3. Punishment is measured by its:
a Intensity
b Duration
c Certainty or Uncertainty
d Its nearness or remoteness
4. Major utilitarian theories:
a Specific Deterrence: Changing future actions of offender (calibrating to certain level, not beyond)
b General Deterrence: Are we punishing sufficiently to send a message to society in order to provide incentive
not to commit crimes

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c Rehabilitation: Punishment may help reform criminal, lessening desire to commit crime and become a
happier, more productive person.
d Incapacitation: Preventing destructive acts by physical confinement or limits on the actor
C Retributivism
1. Generally
a Kant: You cannot use a person as a means to an end
b Just Desserts: It is inherently good to punish if it is deserved
c Moral Actor: Moral wrongs by a person exercising free will creates guilt that can only righted by a
punishment
d Looks back on the wrong and punishes individuals
e Proportional: Punishment should never be greater than what is deserved, even if it would deter many.
f Justice: The punishment of individuals restores the equilibrium of benefits and burdens in society
D Assaultive Retribution (Prof. Murthy): a "we should treat criminals as rather like noxious insects to be ground under the
heel of society".
E Protective Retribution: The wrongdoer has a right to be punished and absolved of their guilt.
F Positive Retributivist
1. Guilt is both a necessary and sufficient condition for punishment.
2. A wrongdoer must be punished for his culpable wrongdoing, even if it deters no future crime
G Negative Retributivist
1. Innocent should never be punished, guilt is necessary condition of punishment.

III. Chapter 3: STATUTES

A Principle of legality: A person may not be convicted or punished unless her conduct was defined as criminal by statute.
1. Corollaries: we should not punish
a Understandable Statues should be understandable to reasonable persons
b No Subjective Power: They should be crafted so that they don't delegate policy making to policemen, judges,
and juries
c Lenity Judicial interpretation should be biased in favor of the accused (tie goes to the )
B Statutory Interpretation
1. Frankfurter (Judicial Restraint) Judges should not be looking to substitute their policy preferences in place of what
the statute says. Always conscious of the legislative function.
C Ex Post Facto: Clause of the construction disallowing retroactive legislation or expansion of existing statutes; due
process clause: retroaction judicial lawmaking

IV. Chapter 4: ACTUS REUS

A Components of a Crime
1. Every element must be proven beyond a reasonable doubt
2. Material Elements
a Actus Reus: Result, Attendant Circumstances
b Mens Reus: Purpose, Knowledge, Recklessness, Negligence
3. Non-material Elements

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a Statute(s) of Limitations
b Jurisdiction or Venue
c Disconnected from the harm or evil
d Justification or excuse
B Types of Reus Elements
1. Act the actions that are necessary to prove the culpability/guilt of the crime. (usually verbs)
2. Resultant outcome or consequence of an act
a Causation must be analyzed whenever discussing results
3. Attendant Circumstances context elements, circumstances that surround the 's acts that are required for culpability'
C Voluntary acts must be voluntary and must actually cause the result
1. Common Law - Some type of physical movement or physical activity, voluntary, or involuntary. Can include
Failure to act
a Involuntary Act: Distinguishing voluntary from involuntary acts.
i Dad was convicted of manslaughter because he voluntarily acted by consuming alcohol. He argued it
was an involuntary response, but this didn't fly with the court
b Voluntary Act: Martin v. State - public drunkeness
i Any Person (Attendant Circumstances - A.C.)
ii While intoxicated or drunk (A.C.)
iii Appearing (Act) in public (A.C.)
iv Where one or more persons are present (A.C.)
v Manifests a drunken condition, boisterous or indecent, loud and profane discourse (Act)
c Omissions: "Negative Acts" - People v. Beardsley - took his mistress to a hotel room, drinking party, she
overdosed on morphine tablets, he had no duty to act
i Duty to act created by:
A Statue. ex. Requirement to file a tax return
B Contractual Duty you have assumed through a legal contract to care
C Special Relationship - Spouses, Parent/Child, Master/Seaman
D Seclusion of the person in need if you've increased risk of harm
E Creation of Danger - if you create the risk of harm, then you create the duty to care.
2. Distinguishing Acts from Omissions (Barber v. Superior Court) "Although there may be a duty to provide life
sustaining machinery in the immediate aftermath of cardiac-respiratory arrest, there is no duty to continue its use
once it has become futile in the opinion of qualified personnel
3. Actus Reus Crimes
a Result Crimes: The law punishes because of an unwanted outcome such as the death of another person or the
destruction of a dwelling house.
b Conduct Crimes: The law prohibits specific behavior, such as driving under the influence of alcohol or
solicitation to commit murder.
D MPC 2.01 - Requirement of Voluntary Act, Omission as Basis of Liability, Possession
1. 2.01(1) Voluntary Act - Any act performed by actor except for reflex or convulsion; a bodily movement during
unconsciousness or sleep; conduct during hypnosis; a bodily movement conscious or habitual.

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2. 2.01(1) Omission - Never a crime unless imposed by statute

3. 2.01(3) Possession - Knowingly possess something or received something or be aware that you posses something
with sufficient time to ditch it.

V. Chapter 5: MENS REA

A Definition: Mens Rea - guilty mind; guilty or wrongful purpose; a criminal intent (the actor's state of mind)
1. Mens rea is always a subjective assessment of what the actor was actually thinking
2. Mistake by the defendant can defeat mens rea
3. The mens rea is determined by looking at the entirety of the circumstances
B MPC
1. What mens rea am I supposed to prove with regard to the actus reus in the particular statute?
2. Default: Recklessness, if no other mens rea is stated in the statue.
3. If mens rea is prescribed for one material element in the statute, then it shall be applied to all material elements in
the statute. - MPC 2.02(4)
C Willful Blindness - MPC 2.02(7) - A High Probability of Awareness
1. Satisfies Knowledge Mens Rea: A law that will punish you like you did know, even though you didn't know.
(Conceptually, it would fall somewhere between recklessness and knowledge)
2. A way to get into knowledge of mens rea.
a Disregard of a high probability of awareness = knowledge
D Strict Liability
1. MPC 2.05 - If there is a strict liability statute, then only Negligence must be proven. MPC 2.05(2)(b)
2. Common Law: No mens rea
3. MPC jx;s only: If a statute doesn't specify the level of culpability, read recklessness
a If it's a strict liability statute (it will specifically say this in this statute), then read in negligence
4. MPC 2.02(4) If a statute doesn't distinguish between the elements of the crime, then apply all elements
E Mistake of Law/Fact: It is simply you looking at the mens rea requirement and the statutory requirement.
1. Every negligence case is a mistake case, we're simply asking whether it was reasonable or unreasonable
2. If it's MPC, it must be grossly negligent (not the same negligence as in torts)

VI. Chapter 6: CAUSATION MPC 2.03

A Actual Cause (Cause in Fact)
1. Must be proven with all the result elements
2. Direct Cause: The act causes the result without involvement of any intervening factor.
B Proximate (Legal) Cause
1. Generally
a Every event that happens between the act and the result is an intervening cause that needs to be analyzed to
see if it is a superseding cause that breaks the causal chain
b Policy decision to remove unjust culpability for all the results of a person's acts
2. Common Law Factors for determining Proximate Cause (Rideout)
a Foreseeability as determined by structure analysis

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b Contribution to the Social Harm (The act was small compared to the intervening act which relieves of
culpabilit) (De Minimis)
c Foreseeability of the intervening cause
i Responsive (shoot victim, victim goes to hospital, hospital is negligent, victim dies) is proximate cause
VERSUS
ii Coincidental (shoot victim, victim goes to hospital, crazy man in emergency room stabs victim 35
times, victim dies) is not proximate cause
iii 's mens rea (intent to commit a crime will almost always establish proximate cause)
iv Apparent Safety Doctrine - Victim leaving danger relieves 's culpability
v Free and Deliberate, Informed Human Intervention (Victim chooses danger)
vi Omissions of Others (They are almost never superseding causes)
3. The Velazquez Test - Drag Racer (Common Law) Policy Question of culpability --> was it fair to put the cause on
? (beyond the scope)
4. The MPC Test 2.03 Focuses on the mens rea result.
a Not too remote or accidental to have a just bearing
b Purposely/Knowingly: Element is established if result is within the purpose/contemplation of action. Also if:
i You intend to injure one person, but in fact injures another, or if harm actually caused is less severe
than what you intended.
ii Result is the same kind of injury or harm that you intended, but is not too remote from action to be
foreseeable.
c Recklessly/Negligently: Element is established if actor is aware or should have been aware of result. Also if
i Same as 1a
ii Same as 1b

VII. Chapter 7: HOMICIDE

A Introduction
B Intentional Killings
1. Common Law Murder: Unlawful killing of a human being with malice aforethough
a Malice aforethought can be established by:
i Intent to Kill: Awareness that the death of another would result from one's actions, even if the actor
had no particular desire to achieve such a consequence.
ii Intent to inflict grievous bodily harm: knowledge that conduct would cause serious bodily injury was
generally assimilated to intent and deemed sufficient for murder if death of another actually resulted
iii Depraved Heart: Causes the death of another in a manner exhibiting a wanton and willful disregard of
an unreasonable risk to human life with a base of antisocial motive
iv Felony Murder Rule: Strict liability for homicide committed during commission of a felony
b First Degree Murder can be established by:
i A premeditation (some measurable time) and Deliberation (reflection on the killing) = the time interval
between initial thought and action is enough to be a Second Look (Midget and Forrest)
A Want of provocation on the part of the deceased
B The conduct and statements of the D before and after the killing

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C Threats and declarations of the D 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
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 (CA courts say quite the opposite)
ii A felony murder committed when the felony is inherently dangerous or listed by statute
iii Second Degree Murder
iv (a). All murder without premeditation and deliberation,
v (b). Depraved heart murder
2. Model Penal Code
a Purpose or Knowing (murder)
b Recklessness plus Indifference (murder)
i Similar rule to Felony Murder Rule.
ii In the commission of listed felonies, a may be presumed to have extreme indifference to have value
of human life. A judge will then allow this presumption to go to a jury (unless the wholly negates the
presumption) to be able to establish that the defendant had a general extreme indifference to the value
of human life (murder).
c Recklessness (manslaughter)
d Extreme Emotional Disturbance (manslaughter)
e Negligence (negligent homicide)
3. Defenses to mitigate culpability from murder to manslaughter
a Heat of passion - Common Law
i Step 1: Evidence that external provocation produced a subjective loss self-control by the , and that
this loss of self-control in fact cause the killing
ii If yes, Step 2: Evidence that the provocation was objectively "adequate" to produce the 's loss of self-
control
A Objective analysis of the gravity of the provocation and the loss of self-control response
1. Discover Adultery
2. Mutual combat
3. Assault and Battery
4. Injury or Abuse of close relative
5. Resisting an unlawful arrest (old rule, no JDx (jurisdiction))
B Some jurisdictions "words alone" do not satisfy (Girouard)
C Stand-alone provocation, not end in series
D Holley - A different reasonable person test fir HoP inquiry
1. Test: "Actor's situation" might be legally relevant
a In measuring gravity of the provocation to the reasonable/ordinary person
b In assessing the level of self-control to be expected of a reasonable/ordinary person
i Sex and age only? Courts are divided

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ii Most courts have been unwilling to consider any of the 's psychological
characteristics, e.g. hothead
E Many jurisdictions have no distinction between reasonable person for HoP inquiry
iii If yes Step 3: Would reasonable person not have a "cool off" between provocations and killing
iv If yes, Step 4: Trial judge must inform jury of the HoP defense and the jury decides steps 1-3's
b Extreme Emotional Disturbance - MPC (Casassa)
i Step 1: Evidence that subjectively experienced emotional disturbance and that the disturbance
caused the killing.
A Not Necessary for provocation to be external
B Could be end of long-term, internal, or even inaccurate operations of 's mind.
C Fit of passion or loss of self-control not necessarily satisfactory evidence
D Must be "mental or emotional trauma of significant dimensions."
ii If yes, Step 2: The trial just must inform the jury of the defense and the jury"
A Decides the answer to Step 1, and:
B Decides whether a reasonable explanation or excuse exists for the 's EED
1. Jury examines the EED from the 's perspective, regardless of inaccurate perceptions.
2. May not consider:
a "Idiosyncratic moral values"
b Peculiar temperament
c Tendency to extremism
3. "Reasonable explanation or excuse" is whether the emotional disturbance and killing
warrants mercy. (Reasonable version of that person)
a e.g. was the "white" father who believed black people had an infectious disease and
when he saw his daughter with a black person he killed them.
C Unintentional Killings
1. Common Law
a Intent to Cause Grievous Bodily Injury/Harm
b Felony Murder Rule
i In general: Felony (already in progress) + Killing (while committing the felony) = Murder
ii People v. Fuller
A First Degree because it is in the first degree statute
iii Debate
iv Limitations
A The inherently dangerous felony (People v. Howard)
1. Abstract: looking at the statute
2. Case Specific: case fact analysis of dangerousness
B Second Degree non-enumerated felonies
C The Independent Felony (or Merger) (People v. Smith)
1. When the felony is assaultive in nature then the felony merges with the homicide and
cannot be the basis of a felony murder

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D Killings "In the Perpetration" or "In Furtherance" of a Felony

E State v. Sophophone
F The Agency Approach: F/M does not apply if person who caused death was not a felon
G The Proximate Causation Approach: If the felon and felonious act set the death in motion
1. Depraved Heart: Engaging in conduct knowing that it endangers human life.
a People v. Knoller
i Trial Court: Know someone likely to die
ii Appeal Court: Likely to cause serious injury or death
iii Supreme Court
iv Knowledge is not required
v Risk of serious injury does not suffice
vi Thomas: a , for a base, anti-social motive and with wanton disregard for
human life, does an act that involves a high degree of probability that it will
result in death
vii Phillips: An act, the natural consequences of which are dangerous to life, which
act was deliberately performed by a person who knows that his conduct
endangers the life of another and who acts with conscious disregard for life.
2. Misdemeanor Manslaughter Rule
a Common Law:
i The defendants intentional commission of a misdemeanor supplies the
culpability required to impose homicide liability
ii Courts limit this to misdemeanors that area "dangerous
iii The MPC has abandoned the misdemeanor manslaughter rule
H MPC
1. Intent to Cause Grievous Bodily Injury: MPC places it under recklessness with
indifference
2. Extreme Indifference
a General: Recklessness plus circumstances evincing exxtreme indifference to the value
of human life
3. Criminal Negligence
a State v. Hernandez
i Objective Standard
ii It is not necessary to prove subjective knowledge of risk for negligence
b State v. Williams
i Ordinary negligence is lower and does not merit punishment
ii Gross negligence (Criminal Negligence) must be far enough from reasonable
person to justify punishment
D Homicide How To: Homicide Common Law
1. Step 1: Verify there is a body
2. Step 2: Is it a murder?

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a These establish second degree murder:

i Intent to kill
ii Intent to inflict grievous bodily harm
iii Felony Murder Rule
iv Depraved Heart
3. Step 3: If murder then premeditated and deliberated? If yes, then First Degree Murder
4. Step 4: If murder then in heat of passion? If yes, then Manslaughter
5. Step 5: If murder or manslaughter then was it self-defense?
a Is there a threat of deadly force?
b Is the threat unlawful?
c Does the reasonably believe that deadly force is necessary?
i Proportional
A Must not use deadly force against non-deadly force
B The threat of force is viewed in light of all circumstances/characteristics
ii Duty to retreat
A Must retreat only if retreat can be done in complete safety
B Castle Doctrine: No duty to retreat in home unless from cohabitant
iii Initial Aggressor
A Must not be initial aggressor of confrontation
B Must not be the first to threaten use of deadly force
iv Imminence
6. Homicide: MPC
a Step 1: Verify if there is a body?
b Step 2: Is it a murder?
i These establish a murder:
A Committed purposefully or knowingly
B Committed recklessly under circumstances manifesting extreme indifference to the value of life
c Step 3: Was the homicide during commission of, or an attempt to commit, or flight after committing, or
attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary,
kidnapping or felonious escape.
i These create "presumption" of reckless with indifference which allows the prosecution to submit
murder to jury
ii UNLESS the defense can clearly negate the presumption
d Step 4: A homicide is manslaughter when:
i Committed recklessly
ii Extreme mental or emotional disturbance (EED)
e Step 5: A homicide is negligent homicide when committed negligently
f Step 6: Was the homicide committed for Self-Protection?

VIII. Chapter 8: SEXUAL ASSAULT

A Rape

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1. Common Law
a Elements
i Sexual Intercourse defined as "Any penetration, however slight, admission not required" e.g. CA Penal
Code 263
ii With a woman
iii Not the 's wife (revoked in all jurisdictions)
iv Without her consent
A Red light traditional victim focus where it must be proved that the victim revoked consent
B Green light modern approach where the must prove consent was obtained
C Words and Conduct can convey consent or lack thereof.
v By force or fraud:
A To establish the requisite force for rape the was required to prove:
1. The use or threat of force likely to cause death or serious bodily injury;
2. A kidnapping, OR
3. Victim's earnest/utmost resistance to a 's conduct (until exhausted or overpowered, or
otherwise unable to resist)
B Traditional View of Force
1. Historically: Rape is a "crime against the purity or chastity of a woman." Thus, "thus
burden on protecting that chastity fell on the woman, with the State offering its protection
only after the women demonstrated that she has resisted sufficiently." MTS, pgs 439
2. Modern: Active resistance the only way objectively to establish the crime independent of
the victim's word?
3. Disregards substantial evidence that resistance can increase risk of further physical harm
or death
C Modern Approach to Force
1. Several Jx's (jurisdictions) have abandoned any resistance requirement, and instead define
force as a "forcible compulsion," which keeps the focus on the 's conduct
2. Some states still retain some form of a resistance requirement, sometimes requiring a
"reasonable resistance"
vi Marital Rape Exception: A General Rule until 1970s, and now abandoned in all 50 states but remnants
remain in the form of:
A A discrete offense with different sentence
B Special "prompt report" aka S.O.L.
C Force requirement, even when not required
D May apply to non-intercourse sex offenses
B Rape: MPC
1. Elements
a Sexual intercourse "any penetration, however slight, admission not required." MPC 213.0(2)
b By a man with a woman
c Not the 's wife if

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d He compels her to submit by

i force or threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on
anyone OR
ii he substantially impairs her power to control her conduct (e.g. giving her drugs, intoxicants, etc.) OR
she is unconscious OR
iii she is less than 10 years old
e MPC 213.6(2) whenever the definition excludes conduct with a spouse, the exclusion shall be deemed to
extend to persons living as man and wife, regardless of the legal status of their relationship
f Force or Fraud
i MPC 213.6(4) prompt complaint requirement and (5) corroboration requirement
ii MPC 213.1(2)
2. Marital Rape exception: a man cannot legally rape his wife
3. 1st degree felony unless the and the victim had been previous sexual companions, then even if the raped her, it
is a second rape (less culpable)
C Statutory Rape: a Strict Liability Charge
1. If you have violated the statute, then you have committed rape
2. No general for statutory rape among the various states
3. The rationale used to be to protect the chastity of young females and now it is to prevent teen pregnancy
D Rape Culpability Factors
1. Increases if:
a Victim is unconscious
b Victim is unable to consent (mentally handicapped, too young to consent)
c Use of narcotics/alcohol
E Rape Shield Laws
1. Prevents the from harassing and humiliating the victim with evidence of either her reputation for chastity or of
specific prior sexual acts
2. This type of evidence generally has no bearing on whether the victim consented to sexual conduct with the at the
time in question
3. Keeps the jury focused on relevant issue
4. This promotes effective law enforcement because victim won't fear slander in courts
F Withdrawn consent
1. Traditional rule: Post penetration withdrawal of consent does not convert lawful intercourse into rape, even if the
male uses force of threats of force after consent is withdrawn. (Still commonly used)
2. Modern rule: once consent is withdrawn the use of force or threat of force is considered rape

IX. Chapter 9: DEFENSES

A Generally
1. Failure of proof
2. Offense modification (e.g., HoP, EED)
3. Justifications: Where all the elements are met and the harm is achieved, however, the harm is outweighed by the
need to avoid even greater harm or to further a greater societal interest.

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4. Excuses: All the elements are met and the harm is achieved and the act is not justified, however, the , because of
their condition at the time of the offense suggests that she she has not acted through a meaningful exercise of free
will and therefore is not an appropriate subject for criminal liability
5. Non-exculpatory public policy defense
B Self Defense Justification
1. Common Law (Peterson windshield wiper shooting case)
a Threat of deadly force
b Threat is unlawful
c 's use of force is necessary to defeat this threat
i Proportional
A Must not use deadly against non-deadly force
B The threat of force is viewed in light of all circumstances/characteristics
ii Duty to retreat
A Must retreat only if retreat can be done in complete safety
B Castle Doctrine: No duty to retreat in home unless from cohabitant
iii Initial aggressor
A Must not be first to threaten deadly force
iv Imminence
A The threat is in front of
d If a 's subjective belief in these factors are reasonable (Goetz)
i Known physical movements of the actors
ii 's subjective knowledge of the aggressors
iii Actors' known physical attributes
iv Prior experiences that could provide a reasonable basis for a 's
2. MPC 3.04
a Elements
i Actor subjectively believes
ii Immediately necessary (Norman)
iii To protect oneself
iv From unlawful force
v On the present occasion
b Available: Self-defense may be used when:
i Actor believes necessary to prevent:
A Death
B Serious Bodily Harm
C Kidnapping
D Rape
c Limitations: a person may not use self-defense when:
i Force was used while being arrested
ii Actor subjectively knows the other person is protecting property,

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A EXCEPT someone who:

1. Is a public officer
2. Is retaking property
3. Believes force is necessary to protect himself from death or serious bodily injury
iii Actor provoked the use of force
iv Actor can retreat with complete safety, surrender possession, or by complying with demand however:
A Retreat is not necessary when:
1. At home or work,
2. Unless actor is the aggressor
3. Unless co-worker at workplace
4. Actor is an officer
C Necessity (Choice of Evils) Justification
1. Common Law
a Imminence: Avoided harm must have been imminent
b Causation: Defendant must reasonably believe that greater harm would be avoided from committing the crime
in question
c No Alternative: There was no other way to avoid the other harm
d Is there a reason to believe that the legislature didn't want necessity to be used in this situation?
e Blameless: Defendant cannot have caused the harm to exist
2. MPC 3.02
a Defendant believes the conduct is necessary to avoid harm to others
b Harm avoided must be greater than harm to victim
c Legislature has not shown its intent to exclude defendant conduct
d Mens rea of the crim must be greater than mens rea for creating the necessity (Recklessness & Negligence)
e No imminence requirement, the harm may not be imminent
f Available for homicide though a tough sell (has to be one dying for many)
D Defense of Property Justification
1. Common Law
a Deadly force is never justified in the defense of property
2. MPC
a Deadly force is not justified in the defense of property UNLESS:
i Dispossessed of a home
ii Person is committing arson, burglary, robbery, felonious theft, or property destruction AND
A Has employed deadly force against/in the presence of the actor; OR
B The use of force other than deadly force to prevent the commission or the consummation of the
crime would expose the actor or another in his presence to substantial danger in serious bodily
harm.
b Use of force is justified when:
i Used to prevent or terminate unlawful entry or
ii Unlawful taking of property

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iii Must be immediate or in fresh pursuit after such possession

iv Or the actor believes that it is so urgent because to get back the property would be an exceptional
hardship to postpone the entry or re-entry until a court order is obtained
c Limitations
i Use of force is justified only if the actor first requests the person whom such force is used to desist
from his interference with the property, unless
ii Such request would be useless
iii It would be dangerous to himself or another person to make the request
E Defense of Others: Justification
1. Common Law
a Alter Ego: if you were in their shoes, could you use deadly force?
b Reasonable belief: did you reasonably believe that using deadly force to protect the 3rd person was necessary?
2. MPC 3.05(1)
a Alter Ego: if you were in their shoes, could you use deadly force?
b Necessity: choice of evils. Necessity justifies your behavior because you have chosen a lesser harm to spare a
greater harm
3. Common Law: Rests in a 's choice of lesser social harms
a Limitations
i Comparable harms insufficient
ii Avoided harm must be imminent
iii must not bear fault for the greater harm avoided
b Varies whether defense applies to homicide cases
4. MPC 3.02
a believes conduct necessary to avoid harm to or another person
b Harm to be avoided greater than harm of a 's unlawful conduct
c The legislature has not expressly excluded 's conduct from the defense of necessity
d Harm need not prove imminent (but still necessary)
e Defense applies to homicide
f Defense not available to offense charging negligence or recklessness if 's negligence or recklessness created
the greater harm or in assessing necessity of choice
F Duress: Excuse
1. Common Law: With duress, we forgive the actor because the actor engaged in criminality under duress through
coercion lacking freewill. But the social harm is not negated (excuse)
a committed offense only because of an unlawful threat of imminent deadly force against or another person.
i Non-deadly threats insufficient at common law, no matter how significant the non-deadly harm
ii 's belief subject to reasonable person standard
iii must not be at fault for being exposed to the threat
iv Reasonable opportunity for escape considered - part of imminence requirement?
b Not defense to homicide
2. MPC 2.09

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a Coercion: any threat or use of physical force can suffice

i Broader than Common Law deadly force requirement
ii Force still must be unlawful
b Reasonable firmness standard:
i 's decision to succumb to coercion will not excuse
ii 's conduct unless a person of a "reasonable firmness" also would have succumbed.
c See also MPC Section 2.09(3): Eliminates Common Law presumption that a woman acting at her husband's
command is coerced
d Able to be used for homicide
G Entrapment Excuse
1. Common Law
a Traditional Standard: the government induced a to commit the crime for the purpose of prosecuting a
b Inducement = more than tempting opportunity - the gov't official must draw the into committing the crime
c must not have been predisposed to commit the crime - a willing criminal cannot be "induced"
d Makes 's criminal record for similar crimes relevant
e Rationale: The gov't properly may employ artifice and design to snare careless or eager criminals, but not to
lure an innocent person into criminality
f Criticism: Renders voluntary choice to commit crime lawful because the Government make the choice
attractive.
2. MPC 2.13: Follows common law rule, with two important considerations:
a Places burden of proving this defense on the
b Not a defense to charges involving injury or threat of injury to a person other than the actor offering the
inducement
H Intoxication Excuse
1. If intoxication is voluntary, then never a defense
a In some Jx, voluntary intoxication, if severe, may be admissible as evidence relevant to intent
2. Involuntary:
a Common Law:
i Defense to all crimes if the intoxication temporarily cause you to act insane because you were drugged
you were unable to understand the nature and quality of your conduct
ii Unless, the intoxication negates the mens rea for a specific intent crime
A Crimes requiring you act knowingly, purposefully, conscious object you may have a complete
defense to these crimes
B However, general intent crimes not a defense
iii MPC 2.08: A defense if it negates an element of crime, e.g. mens rea
A Intoxication of the actor is not a defense unless it negates an element of the offense (mens rea)
(like the CL)
B Specific intent/General intent distinction does not apply
I Insanity Excuse
1. Common Law

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a Lack of culpability because of mental illness

b M'Naughten Test: Defendant insane if, at time of crime due to mental disease or defect,
i Did not know the nature and quality of actions: OR
ii Could not distinguish right from wrong
c Insanity defense is retributive in nature because if a person does not have moral agency then the person cannot
be considered blameworthy
2. MPC 4.01
a Lacked the capacity to appreciate the criminality of his conduct of conform his conduct to law
b Affirmative defense = t's Burden
c Symptoms made it so that the could not appreciate his conduct
i a matter of degree, rather than all or nothing in CL

X. Chapter 10: INCHOATE OFFENSES

A Attempt unsuccessful effort to commit a substantive crime.
a An attempt constitutes a discrete crime from the substantive crime, but the attempt merges with the
substantive crime if the attempt proves successful.
2. Common Law
a Actus Reus
i Dangerous Proximity Test: Commits the actus reus of the crime when the has come dangerously
close to successful commission of the crime.
b Mens Rea
i Intent: conscious object to engage in the act constituting the actus reus of the attempt crime AND
A conscious object to commit the substantive crime
c Attempted Murder: Only specific intent to kill will satisfy the mens rea necessary for attempted murder. No
attempted great bodily harm murder, attempted depraved heart murder, or attempted negligent involuntary
manslaughter
3. MPC 5.01(1)(ac)
a Actus Reus
i Substantial Step Test MPC 5.01(1)(c) is guilty of attempt when he takes a "substantial step" toward
the crime
ii Shift focus from how close the came to committing the crime to what the has accomplished to
complete that crime
A Broader standard for attempt than common law
B Limitation: The substantial step must "strongly corroborate" 's criminal purpose
b Mens Rea: Criminal attempt requires the mental culpability to satisfy the substantive crime, AND:
i Conduct crime: defendant purposely engaged in conduct that would constitute the crime if the
attendant circumstances were as he or she believed them to be.
ii Result crime: defendant engaged in any act or omission with purpose of causing the result, or belief his
or her act or omission would cause that result.

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iii Incomplete attempts: defendant purposely engaged in any act or omission that, under circumstances as
defendant believed them to be, constituted a substantial step in a course of conduct planned to
culminate in the crime.
4. Defenses to Attempts
a Impossibility: attempts a crime that cannot be committed
i Factual: objective is criminal but an unknown factual circumstance makes commission of the crime
impossible
A believes the conduct is criminal
B Still might be chargeable because moral culpability is present
C Man engages with 17 year old, believing her to be 16, she is actually 17, and the legal age is 17 =
factual impossibility
ii Legal: 's objective does not constitute a crime
A Complete defense to attempt charge
iii Example: statutory rape - a man engages with 17 year old woman believing her to be 17 and believing
the legal age to be 18 even though it is 17 = legal impossibility
iv MPC: looks only to what the thought the attendant circumstances (A.C.) to be
B Conspiracy
1. Define: An agreement to commit a crime
2. Merger: No merger, discrete from substantive crime
3. Common Law
a Actus Reus: Unlawful agreement between 2 or more persons
i Plurality Rule: Must have at least two people agree and in some Jx a person cannot be
ii Overt Act: An act that affects the object of the conspiracy or that has a tendency to further the
objective
A Doesn't have to be an unlawful act, could be a completely innocent event (e.g. a phone call to set
up a meeting)
b Mens Rea: Specific Intent
i Intent to partner with others, AND
ii Intent to accomplish the unlawful objective
c Pinkerton Rule: each member of a conspiracy is liable for all crimes committed by other members of the
conspiracy:
i That were reasonably foreseeable result of the conspiracy and,
ii Committed in furtherance of the conspiracy
d Abandonment
i Must actually help legal authorities to stop the target offense to claim a defense
ii If you join a conspiracy midway through, you are only liable for the actions that occur after you joined.
4. MPC: 5.03 requires an agreement by the defendant, therefore someone can be convicted of conspiracy even if the
other person is acquitted.
a Withdrawing: must do more than just say, count me out
i Must do something that thwarts the success, ex. Informing police, that come and prevent crime

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b Allows you to not be held liable from thereafter

c No plurality requirement; overt act requirement for conspiracy to commit felony below 2 nd degree
i If it is first or second degree, then you need an overt act.
d Abandonment
i Removing any contribution that you have given
ii Must actually help legal authorities to stop the target offense to claim a defense
iii If you join a conspiracy midway through, you are only liable for the actions that occur after you joined
C Solicitation
1. Definition: A criminal request to commit a crime
2. Merger: Solicitation merges if the requested crime is committed
3. Common Law/MPC
a Actus Reus: Unlawful request (MPC 5.02(1))
b Mens Rea: Specific Intent
i Intent to make the request
ii Intent that the solicited party to commit the crime
iii Contrast with conspiracy
A No agreement required for solicitation
B Act of solicitation with required mens rea establishes the crime of solicitation, even if the request
is refused.
iv Attempted solicitation
A MPC says that even if the person doesnt hear the solicitation or it wasnt received, the
solicitation is still complete
B COMMON LAW if the person doesnt hear, or it is not received, then it is treated as an attempted
solicitation
D Accomplice Liability
1. Common Law
a Actus Reus: Assistance in fact (before, during, after)
i Encourage, solicit, importune, command, request, aid, etc., another persons crime
b Mens Rea :
i Assistance must be intentional
ii No need to be present during the crime
iii Assistance with culpability required for the offense
2. MPC 2.06(1), (2)(c), (3), and (4)
a Aid, agree, or attempt to and such other person in planning or committing it; or
b Have a legal duty to prevent the commission of the offense, fails to make proper effort so to do;
c Having a legal duty to prevent the commission of the offense, fails to make proper effort so to do, or
d His conduct is expressly declared by law to establish his complicity
XI. RULE PROOFS

Retribution

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Under retributivist justifications for punishment there must be guilt in order for punishment to be justified, and if guilt does
exist then punishment should be made,

Utilitarianism

Under utilitarian punishment theory, punishment is an evil, which is only just, is there is greater good to be produced from the
punishment. The good gained comes in the forms of specific deterrence, general deterrence, rehabilitation, or incapacitation.

Murder

(CL) Murder at common law is the unlawful killing of a person by another human being with malice aforethought. The
element of malice aforethought can be met through: (1) the intent to kill; (2) the intent to inflict serious bodily injury/harm; (3)
depraved heart/indifference; or (4) felony murder, i.e. murder that occurs during the commission of a felony.

(MPC) Under the MPC murder is the criminal homicide committed purposely, knowingly, or with extreme indifference to
human life. Murder is a result of crime which requires that the result of death to be proven to be actually caused and
proximately caused by the defendant.

Murder #1

(CL) Most jurisdictions break murder into two degrees; first-degree murder and second-degree murder. First-degree murder is
the unlawful killing of a human being with malice aforethought, along with either premeditation and deliberation, or and
enumerated felony that meets the Felony Murder Rule. Felony Murder exists when the death of a person occurs during the
commission of an inherently dangerous felony. (Howard) At common law this included Burglary, Arson, Robbery, Rape, and
Kidnapping.

Manslaughter

(CL) Under the common law manslaughter is established when the defendant is

(MPC)

Attempt

(CL) Under the common law, attempt is a specific intent crime, where the defendant must (1) specifically intent to commit the
under lying crime; and (2) intend to commit the acts that constitute the actus reus of the attempt. The actus reus of an attempt is
one that comes dangerously close to completing the crime. Often referred to as the dangerous proximity test, which extends
the requisite proximity for an attempt based upon the seriousness of the intended crime, mere preparation is insufficient for
attempt

Conspiracy

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A conspiracy occurs where two or more people agree to commit an unlawful act and at least one performs an overt act in
furtherance of the agreement.

Accomplice Liability

Accomplice liability occurs when a person either aids, abets, or assists a person in the commission of a crime.

Insanity Defenses

The four major insanity approaches used by most jurisdictions are: (a) MNaghten Test; (b) Irresistible Impulse Test; (c) and
the MPC Test

(a) MNaghten Test

Under the MNaghten Test, a defendant may be found not guilty by reason of insanity if his actions were the product of a
mental disease of defect such that he did not know right from wrong or was unable to understand the nature of his actions.

- The MNaghten test is used in the majority of jurisdictions

(b) Irresistible Impulse Test

Under the Irresistible Impulse Test, the defendant may be found not guilty by reason of insanity if their actions were the
product of mental disease or defect such that the defendant was unable to control his actions. In this approach, the defendant
may know that his actions were wrong, but the mental disease or defect he had caused him to be unable to resist the criminal
act. It has been stated that such a defendant would be unable to resist performing the criminal act even if there was a policeman
standing at his shoulder

(c) MPC Approach

The MPC (Model Penal Code) Approach combines the MNaghten Test and the Irresistible Impulse Test such that a defendant
may be found not guilty by reason of insanity if they were either unable to understand right from wrong OR were unable [to]
resist performing the criminal act as discussed in the Irresistible Impulse Test supra (above)

9 Steps

Step 1: State the issue

Step 2: Identify the rule, but dont waste time stating the rule.

Step 3: Summarize the elements of the rule that are easily satisfied by the facts.

Step 4: State the sticking point on which this issue turns, i.e. the ambiguity in the facts that makes it a difficult question

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Step 5: Apply one or more of the four types of Analysis to the problem:

1. Reasoning by Analogy: Case law suggests that these facts (would/would not) satisfy the (element)
2. Balancing Test: The following factors weigh in determining whether the (element) is satisfied
3. Judicial Test: Courts have applied the following test to prove whether the (element) is satisfied.
4. Policy: The underlying policy of the rule (is/is not) furthered by its application in this scenario. (Cite policy)

Step 6: Contrast conflicting authority

Step 7: What are the defenses?

Step 8: Make a conclusion

Step 9: Go on to the next issue

State v. [Defendant]
Crime 1:
Paragraph 1: ISSUE/RULE
Issue statement. Rule proof paragraph. Court will likely find that
Paragraph 2: ANALYSIS
- State issue with current determinative facts (e.g. Here, we are told that Mel desired to commit homicide and
formulated a plan to kill.)
- The prosecution will argue
- The defense, however, will contend
- [Defendant] (is/is not) likely guilty of [crime]
Paragraph 3: TRANSITION/CONCLUSION
- The court will find that based on these arguments that
- However, the court may find that
State v. [Defendant]
Crime 2:
Paragraph 1: ISSUE/RULE
Issue statement. Rule proof paragraph. Court will likely find that
Paragraph 2: ANALYSIS
- State issue with current determinative facts (e.g. Here, we are told that Mel desired to commit homicide and
formulated a plan to kill.)
- The prosecution will argue
- The defense, however, will contend
- [Defendant] (is/is not) likely guilty of [crime]
Paragraph 3: TRANSITION/CONCLUSION
- The court will find that based on these arguments that
- However, the court may find that

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