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CRIMINAL LAW OUTLINE

I. PURPOSES & JUSTIFICATION


- The purpose of punishment is to cause suffering
- Theories of Punishment:
o Retributive:
 People have done things in the past to deserve punishment
 Those who are morally culpable deserve to be punished, and
society has an obligation to punish them.
 Someone who commits a crime against someone else actually
commits that crime against themselves, and must be made to
feel that.
 A person who violates the rules of society has something others
have -- the benefits of the system -- but by renouncing what
others have assumed, the burdens of self-restraint, he has
acquired an unfair advantage
• Justice restores the equilibrium of benefits and burdens by
taking from the individual what he owes (i.e. exacting the
debt)
 Emmanuel Kant
• We make people suffer because it is just that they suffer,
if they're criminals.
• He does not care if it serves a greater good
• He believes that the punishment is directly correlated to
the crime
• Jus talionis (the right of retaliation)
• Problems:
o It's not enough
o EX: A guy is a tax evader in the amount of $10,000
 This gut could be asked to pay back the
taxes and another $10,000
 It's an eye for an eye, but only an eye
 The guy knows how much it'll cost to evade
taxes, and knows he probably won't get
caught, but if he does it's not that big a deal
 Systemic Shortcomings in Retribution
 If the accused is not definitely guilty, then the punishment is
useless. The point is to punish the person who commits a crime
 This lead to presuming innocence until proven guilty, requiring
proof beyond a reasonable doubt
 Regina v. Dudley & Stephens
Two men were stranded in a boat and were starving to death.
They killed and ate one of the other men in the boat and were
able to survive. They were charged with murder and claimed
the defense of necessity. Court says that hunger does not
give rise to the defense of necessity. Men should
sacrifice themselves before killing another.
• What purpose does a murder conviction here serve? It is
not going to stop starving men from committing crimes to
satisfy their hunger. It is purely punitive.
o Utilitarian:
 The punishment will have benefits in the future because of the
good it will work on the offender and society.
• Essentially a cost-benefit analysis
• The ultimate goal is to promote human happiness
 General Deterrence:
• Knowledge that punishment will follow deters people from
committing crimes; reduces future violations of right and
the unhappiness and insecurity this causes.
• Individual Deterrence
o Actual imposition of punishment creates fear in the
offender
• Shortcomings of Deterrence:
o First, people have different thresholds of what they
would be willing to endure
o Second, spur of the moment, heat of passion
crimes will be unaffected by deterrence
 Incapacitation /Isolation:
• Temporarily puts convicted criminals out of general
circulation [death penalty does so permanently] – society
benefits when more criminals are behind bars [where
they cannot commit crimes]
• Shortcomings of Incapacitation:
o Crimes are predominantly carried out by certain
age groups:
 Violent crime is primarily young men (14-
35)
• There is no use in incarcerating
someone who is an elderly man who
was sentenced for violent crime, he’s
not going to reoffend.
o Prisons and prisoners are expensive
o Isolation is intended to prevent people from
committing future crimes, which means the justice
system is trying to predict future human behavior
 Reform
• Punishment may help to reform criminals so that they
may become a productive, happy part of society.
 Criticism of Utilitarianism:
• Utilitarians essentially use people to make examples out
of them; to some utilitarians, it might be beneficial to jail
one innocent person if it benefits society at large.
o United States v. Milken
Milken evaded lots of taxes, engaged in insider trading. He also was
active in community service. Court sentenced him to 10 years in
prison and 3 years of probation with 1800hrs of community
service those three years. His community work prior to
conviction played a role in reducing his sentence, but he
committed a difficult to detect crime which means he had to
get a sentence on the harsher end of the spectrum.

o United States v. Jackson


A multiple felon robbed a bank with a firearm. A statute in existence
stated that multiple felons who possesses a firearm will be jailed for
not less than 15 years. Court sentenced him to life in prison
without parole. Justice Posner said that the trial court’s
conviction was not reversible because it was within the
statutory limit, but it was too harsh. Posner would have
sentenced to 20 years leaving the defendant at 55 years old,
and too old to be robbing banks anymore.
 Is it really fair that Milken, who took millions, got only 10 years
and Jackson, who took a few thousand dollars, got life?

II. PRINCIPLE OF LEGALITY


- “No punishment without law”
o All punishment must be justified by law.
o The common law would allow certain offenses to be punishable
without statutes. That’s basically what common law is.
o ILCS 1-3 Applicability of Common Law:
 No conduct constitutes an offense unless it is described as an
offense in this Code or in another statute of this State.
• This provision does not affect the power of a court to
punish for contempt or to employ any sanction authorized
by law for the enforcement of an order or civil judgment
o MPC also does not allow prosecution without a statute (not sure the
cite on that)
o McBoyle v. United States
A guy stole a plane and took it from Illinois to Oklahoma. There was a
statute prohibiting the transport of stolen motor vehicles, but planes
were not listed as motor vehicles. Court says that a person must
have notice of what they could be prosecuted for in order to
convict them. No conviction here. The principle of adjucem
generis states that when a statute lists certain items, if
something is excluded by is in the same mode as the listed
items, then it will apply.
 This decision came before planes were readily used, and in no
way would this outcome be the same today. It does show that,
no matter how ludicrous the result, you have to find law on point
in order to convict.
- The Rule of Lenity:
o When there is ambiguity as to how a law will apply, the courts will err
on the side of leniency
o Keeler v. Superior Court
Defendant beat the hell out of his ex-wife. She was pregnant so his
beating killed the fetus. Murder is the unlawful premeditated killing of
a human being. However, the law had never defined what a “human
being” was. Court found that, at common law, a human being
was a person born alive, and they did not want to hold
someone guilty of murder when there was ambiguity to the
statutory definition of human being. Court said assault and
battery were appropriate, but not murder.
 California quickly changed its statutes to define human being so
as to include this type of violent act. Illinois did as well.

III. PROCESS AND PROOF


- Evidence:
o Relevance:
 Relevant evidence is generally admitted. Irrelevant evidence is
never admitted.
 Relevant evidence is evidence that is probative and material.
 Probative:
• Evidence is probative if it makes a proposition for which it
is offered more or less likely to have occurred
 Material:
• Evidence is material if it would be helpful for the jury to
make a decision about the case at bar
o When is Evidence Not Admitted?
 Privilege:
• 5th Amendment right not to self-incriminated, for instance.
 Prejudice:
• Evidence procured through illegal search, or evidence
whose probative value the jury is likely to overestimate,
or if the evidence will arouse undue hostility towards one
of the parties.
• People v. Zachowitz
Some jabronies were hitting on a guy’s wife. He came
back to them after walking her home, argued, and killed
one of them with a gun. The prosecution used the fact
that he owned many guns as an indication that he was
violent. Court says that this evidence was
pertinent, but prejudicial. The character of a
defendant only comes into question when the
defendant makes it a question. There are many
reasons he could have owned the other guns.
o Exclusionary Rule:
 Evidence that comes from violations of a defendant’s
constitutional rights is inadmissible, even if the evidence is
relevant and material
- Morality In Law:
o Lawrence v. Texas:
Two gay guys were having sex in their home and the police came in,
saw them, and they were charged with violating a Texas statute
against homosexual acts. Court found the statute to be a
violation of the 14th Amendment and struck it down along with
the conviction. DISSENTING; Scalia and others said that Texas
should be able to enact an act based on their moral
conscience. The 14th Amendment only covers fundamental
rights and homosexuality is not one.
 Patrick Devlin says that a common morality to stay bonded
together is necessary for society. Allowing consensual
homosexual sodomy is unsound. Consent is not an excuse for
commission of a crime. Victims of murder cannot consent to the
killing, dueling, which is consensual, is not legal either. You
cannot consent to an illegal act and thereby make it legal.
- In re Winship:
A juvenile was convicted of a crime that would be larceny if he were an adult.
He was convicted by a preponderance of evidence rather than beyond a
reasonable doubt. Juvenile courts are technically civil courts. They adjudge
you to be delinquents or not, but do not sentence you etc. Court says that,
despite the fact that juvenile court is civil, the result of the decision
could deprive the defendant of his liberty, and therefore “beyond a
reasonable doubt” is the standard used.
o This logic is the reason that beyond a reasonable doubt is the b/p in all
criminal courts.
o Under Winship, the State has the burden of proving the fundamental
elements of the crime.
o Patterson v. New York
A guy killed a man who was sleeping with the guy’s ex-wife. He
claimed that it should be manslaughter and not murder because it was
in the heat of the moment. The NY legislature had changed the
statute to make it so the Defendant had to prove extreme emotional
disturbance to drop the charges down. A prior court decision had ruled
it unconstitutional to make a defendant prove heat of the moment.
Court rules that “extreme emotional distress” is more
expansive than “heat of the moment” so this is OK. DISSENT:
the two phrases mean the same, just different words. It is
against the 14th Amendment to shift the B/P from the
prosecution to the Defendant like this.
 Basically the majority didn’t want to deal with whether a
legislature could change the wording in statutes to shift the B/P
on the defense. E.g. write a statute that says, “it is murder to
kill someone unless the defense can prove a defense” (that
would mean the prosecution would only have to prove that the
Defendant killed someon).
o MPC and ILCS say that the State must prove the fundamental
elements of the crime. To raise an affirmative defense the
defendant simply needs to produce some evidence furthering it.
 After that, the State must prove each fundamental element of
its case beyond a reasonable doubt, and must disprove the
defendant’s affirmative defense beyond a reasonable doubt.
• Raising the defense is called the burden of production,
disproving the defense is called the burden of
persuasion.

IV. ACTUS REUS


- Each and every element of the actus reus must be proved by the prosecutor.
- Voluntary Act Requirement:
o Only voluntary acts will be punished. It serves no purpose to punish
involuntary acts. It may be a public health benefit to require therapy
or a custodian, but correction is useless.
 Involuntary Acts:
• Generally defined as compulsion or reflex (e.g. seizure)
• You cannot act voluntarily while unconscious.
o Martin v. State
A man was drunk at his home, and the police took him from there to a
public highway. He was charged with violating a statute prohibiting
appearing in any public place while manifesting drunken condition.
Court says that the actus reus is APPEARING IN ANY PUBLIC
PLACE WHILE INTOXICATED but the man did not voluntarily
appear in the public place, so the actus reus is not met.
o People v. Decina
A guy had a seizure while driving and killed four people. Court says
that the killing was not illegal, actus reus was not met.
However, getting behind the wheel was criminally negligent.

o The voluntary act defense forces the prosecution to disprove the


defense beyond a reasonable doubt. In People v. Grant, a man had
a seizure and shot a cop. He could have used voluntary act defense,
but instead he pled insanity which must be proven by the defense by
clear and convincing evidence. That was a mistake.

- Omissions:
o Acting voluntarily can include not doing something that you are
obligated to do.
o Possession as a voluntary act (MPC 4-2)
 If you know that you have contraband, whether you took it or
were given it, then you could have acted voluntarily
o Four Instances Where a Failure to Act is a Breach of a Legal
Duty:
 Where a statute imposes a duty to care for another
 Where one stands in a certain status relationship to another.
 Where one has assumed a contractual duty to care for
another.
 Where one has voluntarily assumed the care of another and so
secluded the helpless person as to prevent others from
rendering care.
o Death resulting from omission is usually involuntary manslaughter
o There is no duty to prevent someone from abusing a child unless you
are the parent, adoptive parent, in loco parentis or are responsible for
the child.
 In Pope v. State a crazy lady stayed at another woman’s house.
The crazy lady beat her own child and killed it. The home owner
was convicted of child abuse for failure to act. The appellate
term overruled because the mother was there the whole
time and the other woman was not the child’s other parent, etc.
o Life Support:
 Pulling life support is considered an “omission,” because it’s a
failure to administer heroic life support (this is when doctors do
it at the family’s request). If someone else does it, then it could
suddenly become an act.
- Possession:
o Possession of contraband is a voluntary act if you know you have it and
have had sufficient time to get rid of it.
o State v. Bradshaw: A guy had 74 lbs of weed in his semi-truck while
crossing into Washington State from Canada. He was convicted of
possession because he failed to inspect his load properly (kind of
defeats the knowingly mens rea, but whatever).

V. MENS REA
- How Do You Prove Mens Rea?
o You must provide circumstantial evidence that shed light on the actor’s
state of mind
- Regina v. Cunningham
A man stole a gas meter out of a house so he could get the money out of it.
This resulted in the home owner almost dying from noxious coal gas. The
man was convicted of malicious administration of noxious gas with the
judge instructing the jury that malicious meant wicked. Court reversed
saying that malicious went to the mens rea of the crime, and that it
meant that the jury had to find intent or knowledge that harm may
occur, but continued to act anyway.
o How would Cunningham be judged in Illinois?
 Intent -- No, his objective was not to administer the gas
 Knowledge – No, can’t say he was consciously aware of the
result
 Recklessness – No, he did not consciously disregard a specific
risk
 Negligence – Probably, but you cannot use negligence to
convict unless the statute specifically allows it.
Otherwise, you must prove at least recklessness.
- Default Mens Rea Rule
o You may only base a prosecution on criminal negligence when the
statute specifically allows it.
 When no mens rea is listed you must prove at least
recklessness
- Differences Between MPC and ILCS Mens Rea:
o Recklessness:
 MPC – deviation from what a law abiding citizen would do
 ILCS – deviation from what a reasonable person would do
• Theoretically, you could abide the law while being
unreasonable
o Negligence:
 MPC – Should have been aware of the substantial risk
 ILCS – Failure to be aware of the substantial risk
- General Intent versus Specific Intent:
o General Intent:
 Any mental state, express or implied, in the definition that
relates solely to the acts that constitute the criminal offense.
o Specific Intent:
 Designates a special mental element which is required above
and beyond any mental state required with respect to the
actus reus of the crime.
• E.g. possession of marijuana with intent to sell
• A special motive/purpose
• Some statutes require proof of awareness of attendant
circumstances.
o E.g. receipt of stolen property with knowledge
that it is stolen
 Specific intent goes beyond just the mens rea of an actus reus
and has a second mens rea for some attending circumstance.
- Willful Blindness:
o If someone does not meet a mens rea required by a statute, but it can
be proved that the only reason he does not meet the mens rea is
because of purposefully disregarding knowledge of the
circumstances, that is called willful blindness and does not negate
mens rea
 E.g. a guy has a secret compartment in his car and he knows
that his friend is putting something in there, but he refuses to
look at what it is. That is willful blindness and if that something
is pot, for example, then the car owner is still guilty.
- Absolute Liability
o Absolute liability offenses require no mens rea
o Common Law:
 Disfavored by common law.
 Those crimes which would carry a great stigma upon
conviction will require a mens rea.
o MPC:
 MPC 2.05(1)
• The requirements of culpability do not apply to:
o Offense which constitute violations (defined in
MPC 1.04), unless mens rea involved is included in
the definition of the offense.
o Offenses defined by statutes other than the Code,
insofar as legislative purpose to impose absolute
liability for such offense or with respect to any
material element thereof plainly appears
oIllinois:
 ILCS 4-9:
• A person may be guilty of an offense without having, as
to each element thereof, one of the mental states
described in Sections 4--4 through 4--7 if the offense:
o Is a misdemeanor which is not punishable by
incarceration or by a fine exceeding $500, or
o The statute defining the offense clearly indicates
a legislative purpose to impose absolute liability for
the conduct described.
o Absolute Liability for Felonies:
 If a statute says that you don't have to prove culpability, then
that is the same as saying absolute liability. In the US that is
true even for a felony requiring incarceration. That is not
typical of foreign criminal codes.
• MPC 2.05
o If a statute does state that absolute liability is the
requirement to convict, then it is punishable as a
"violation" as defined in 1.04(5).
 This has not been adopted by any state.
o Actus Reus in Absolute Liability:
 State v. Baker
A man was cited for speeding because his cruise control
jammed. He says that speeding, being an absolute liability
charge, only does away with mens rea, and that the
prosecution still had to prove actus reus.
• Illinois would agree with that statement. Absolute
liability can be avoided if you can prove you did not
meet the actus reus
• MPC absolute liability does away with mens rea and
actus reus, so the Baker argument would not work.
- Wrong in Itself versus Wrong by Prohibition:
o Mal in Se – Something is wrong because of the act (e.g. murder)
o Mal in prohibitum – Something is wrong because the law says it is
(e.g. driving on left)

VI. RAPE
- Common Law Rape
o At common law, rape used to be only vaginal intercourse between a
man and a woman. It is only penis-vagina intercourse, and only a
male can commit rape. A woman could aid and abet a male in
committing rape, but cannot herself commit rape.
 The common law has changed to allow both now.
- Statutory Rape
o Does not have to be against the will of the victim, she just needs to be
below a certain age.
o People v. Olsen
A guy had sex with a 14 year old when she had told him she was over
16. He was convicted of lewd and lascivious conduct. Court says his
mistake of fact did not change the conviction, because the law
has a special interest in protecting those of tender age.
Mistake of fact, as to consent, is only meant for when someone
is under 18 but over 16. DISSENT: At some point it is possible
to have done all that is reasonably possible to find out the true
age of a girl and still reasonably believe she is of age even if
she is not. At that point, it is unjust to convict because the
person is acting as society would want him to (reasonably
thinks the girl is over 16).
- Criminal Sexual Assault – ILCS 12-13
o Actus Reus:
 The accused commits criminal sexual assault if he or she
commits an act or sexual penetration
• (a)1: by the use of force or threat of force
o Defined under 5/12-12(d)1&2
• (a)2: and the accused knew that the victim was unable to
understand the nature of the act or unable to give
knowing consent
• (a)3: with a victim under 18 years of age when the act
was committed and the accused was a family member
• (a)4: with a victim who was at least 13 but under 18 when
the act was committed and the accused was 17 or older
and held a position of trust, authority or supervision in
relation to the victim
 Force/Threat of Force ILCS 12-12:
• "Force or threat of force" means the use of force or
violence, or the threat of force or violence, including but
not limited to the following situations:
o (1) when the accused threatens to use force or
violence on the victim or on any other person, and
the victim under the circumstances reasonably
believed that the accused had the ability to
execute that threat; or
o (2) when the accused has overcome the victim by
use of superior strength or size, physical restraint
or physical confinement.
o Mens Rea:
 Recklessness at least: no mens rea explicitly stated, except:
• (a)2: knowledge that the victim was unable to
understand the nature of the act or unable to give
knowing consent
o Defenses:
 ILCS 12-17:
• (a): consent is a defense if it is explicitly given – freely
given agreement to the act of sexual penetration or
sexual conduct in question
o Lack of verbal or physical resistance or submission
shall not constitute consent
o Manner of dress of the victim at the time of the
offense does not constitute consent
o Consent is only part of element (a)2, so mens rea
for the other 3 elements does not have to go to
consent (?)
o Mistake:
 ILCS 4-8:
• A defense of ignorance or mistake should apply if it
negates the mens rea
o While consent is a defense to rape, mistake of age
is NOT a defense.
• The rule of lenity could be used to argue that, since it is
unclear if mistake of consent is a defense, that the court
should exercise leniency in hear such a case.
o Burdens:
 For affirmative defenses the burden of production is on the
defendant the burden of persuasion is on the prosecution. The
exception is when defendant pleads insanity, then he carries
both burdens.
• In determining force, some jurisdictions feel that the force
of normal intercourse is enough to prove force. Other
jurisdictions require a show of resistance to prove force.
- Force and Resistance: Common Law
o Fear can satisfy the element of force if it is a real and reasonable
fear.

VII. MISTAKE OF FACT AND MISTAKE OF LAW


- Mistake of Fact
o Consent:
 Possible Rules:
• Mens Rea [typical rule]
o This means treating sexual assault like every
other offense
o B (a minor) v. Director of Public Prosecutions
A 15 year old boy repeatedly asked a 13 y/o girl for
a blowjob. She refused and the 15 y/o was charged
with inciting a child under 14 to perform a grossly
indecent act. He actually believed the girl to be
older than 14. Court says that mens rea should
go to consent. The only time it should not is
in strict liability, and the law in this case
does not explicitly state it is strict liability.
Defendants should be judged by the facts as
they know them.
• Reasonable Belief [negligence]
o This means you only need to show negligence with
regard to the mistake of consent
 Mistake must be reasonable at common law
to obviate consent.
• Mistake is NOT a Defense [also common]
o This means that a mistake as to consent is not
allowed at all
• Illinois Rule:
o Here, consent is not an element of the crime.
Therefore, mens rea does not go to this.
 You may raise consent as an affirmative
defense, but the b/p is on the defendant not
on the prosecution.
o Morissette v. United States
A guy took spent bomb casings from an Air Force test range and sold
the metal for a profit. He was convicted of knowingly converting
government property. Court says that the knowingly was
misapplied. The knowing must go to every element of the
crime. The man knew that he was selling spent casings, but
he did not know that they were government property.

o Public Welfare Cases:


 Staples v. United States
A guy was convicted of having an illegal firearm. What made it
illegal was its ability to fire automatic. He was not aware it
could as the gun had been modified prior to his purchase.
Court says that this is not like Baliant, where absolute
liability existed because the case was for the public
welfare. Absolute liability weapons laws only apply to
inherently dangerous items. Guns are not all inherently
dangerous, the automatic feature is what makes it such,
and mistake as to whether it is automatic can be raised.

o Lesser Legal Wrong Theory:


 Mens rea is irrelevant because the act believed to be engaged in
would be illegal, and the defendant does so at the risk of
actually committing a greater offense.
o Moral Wrong Theory:
 Mens rea is irrelevant because the act engaged in is immoral
and what you believe while doing it does not matter.

- Mistake of Law
o Common Law:
 Ignorance of the law is not a defense
o Ignorance of Criminal Code:
 ILCS 4-3 and 4-8 deal with mistake. Essentially the same as
MPC.
 MPC 2.02(9)
• Ignorance of the law defining a crime is not a defense,
and understanding of the law is not an element of the
offense unless specifically stated.
 MPC 2.04(3)
• Can help if the law wasn’t reasonably made available to
the defendant.
o Ignorance of Other Legal Relationships:
 Regina v. Smith
A guy refloored and paneled his apartment and put in surround
sound with the wiring in the walls. When he moved out he took
the wiring out and took the speakers with him. Court
convicted of intentionally damaging another person’s
property because improvements to rentals become
property of the landlord.
• In Illinois you could make an argument here. While
ignorance of criminal law is not a defense, ignorance as
to another legal relationship (such as property law)
could be a defense.
o Here, you would argue that Plaintiff did not
knowingly damage another person’s property,
because he did not know property law made his
speakers the property of the landlord.
 Cheek v. United Staets
A guy was convicted of tax evasion, because he believed taxes
to be unconstitutional and he also did not believe that he
qualified as a taxpayer. Court said that the jury should be
allowed to consider whether his belief that he is not a
taxpayer is a viable defense.
• The court based its opinion on the fact that the crime had
to be willfully violating the Internal Revenue Code. Since
that Code is extremely complex it is possible that
someone could genuinely not understand that they were
violating the Code. This guy got convicted even after that
instruction because he was being a douche and wasn’t
ignorant of the law. However, the more complex the
other legal relationship, the better shot you have at
defense of mistake of law.
o Exceptions to Ignorance of Criminal Codes:
 Lambert v. California
A woman was a felon, and L.A. law enforcement required all
felons must register with the police in order to stay longer than
5 days in the city. The woman did not register and stayed
longer than 5 days and was convicted of violating the statute.
Court overrules this based on mistake of law. They say
the only way to violate the law was to not do something
(you had to not register and not leave). This is a
violation of due process, because most states didn’t
have that type of rule so there is no reason for the
woman to have known that.
• This is a really unique exception to the rule. Usually,
mistake of law as to the criminal code carries absolute
liability.
• This is different from sex offender registration laws
because most states have them, and they are for the
public welfare, which is more likely to make them strict
liability. This statute was just to make law enforcement
easier.

VIII. HOMICIDE
- Murder/Murder in the First Degree:
o Common Law:
 Unlawful killing
 Of a human (or fetus)
 With malice aforethought
• Malice:
o Express: intent
o Implied: showing an abandoned and malignant
heart
• Aforethought:
o Some thought must go into it according to Guthrie.
o According to Carroll, acting on an intent to kill is
premeditation enough to convict.
o MPC: Murder:
 Committed purposely or knowingly; -OR-
 Committed recklessly under circumstances manifesting
extreme indifference to the value of human life
o Illinois:
 Unlawful killing
 Intending to kill or do great bodily harm to and individual or
another or knows that such acts will cause death to that
individual or another (express malice); -OR-
 He knows that such acts create a strong probability of death or
great bodily harm to that individual or another (implied
malice); -OR-
 He is attempting or committing a forcible felony other than
second degree murder (does not translate to the other
statutes)
- Second-Degree Murder
o ILCS 9-2
 (a) A person commits the offense of second degree murder
when he commits the offense of first degree murder as
defined in paragraphs (1) or (2) of subsection (a) of Section
9-1 of this Code and either of the following mitigating
factors are present:
• (1) At the time of the killing he is acting under a
sudden and intense passion resulting from serious
provocation by the individual killed or another whom
the offender endeavors to kill, but he negligently or
accidentally causes the death of the individual killed;
or
• (2) At the time of the killing he believes the
circumstances to be such that, if they existed, would
justify or exonerate the killing under the principles
stated in Article 7 of this Code, but his belief is
unreasonable.
 Provocation:
• People v. Chevalier
o The only categories of serious provocation are:
 Substantial Physical Injury or Assault
 Mutual Quarrel or Combat
 Illegal Arrest
 Adultery with the Offender’s Spouse
o MPC 210.3 – Manslaughter
 Criminal homicide constitutes manslaughter when…
• It is committed recklessly [creating an unjustifiable and
substantial risk]
• It would otherwise be murder but is committed under the
influence of extreme mental or emotional
disturbance for which there is reasonable
explanation or excuse.
o The reasonableness of such explanation or excuse
shall be determined from the viewpoint of a person
in the actor’s situation under the circumstances
as he believes them to be.
o In Illinois, MPC, and Common Law emotional distress/provocation
cat drop charges from murder to manslaughter/2nd degree murder
o Common Law
 Girouard v. State
A man’s wife was taunting him with words so he took the next
logical step and stabbed her 17 times. He was convicted of
murder but said it should be manslaughter because he was
provoked. Words alone are not provocation enough.

o Implied Malice/Recklessness Manifesting an Indifference to


Human Life/Reckless Murder
 When charging someone with reckless murder (MPC), you need
to prove that the person knew that his action was going to kill.
(210.2(1)(a)
• In Illinois, you just have to show that the person knows
his acts are likely to kill or to cause great bodily harm,
and then killed them. (9-1)(a)(2)
 Implied malice comes from deadly attacks where maybe people
didn't intend to kill but did
• United States v. Flemming
A man was shitfaced (BAC .315) and speeding (100mph)
and hit and killed someone. Court convicts of murder
NOT MANSLAUGHTER because his actions show
gross recklessness evidencing an abandoned and
malignant heart and a disregard for the value of
human life.

- Involuntary Manslaughter/Unintentional Killing


o People v. Welansky
A guy locked fire exits at his night club to prevent people from running
out without paying. A fire broke out and lots of hood figgas died.
Court says that recklessness is necessary to prove
manslaughter, there must be a consciousness of the
substantial and unjustifiable risk.
 Massachusetts uses the objective standard (reasonable man) to
determine consciousness of substantial risk
 Illinois uses the subjective standard. Defendant must
consciously disregard a substantial and unjustifiable risk under a
subjective standard.

o Common Law Reasonable Standard vs. ILCS Subjective vs.


MPC Negligence
 State v. Williams
Two parents, both dimwits (6th & 11th grade educations), allowed
their child’s abscessed tooth to become gangrenous and kill the
child. Court found the parents to be guilty of involuntary
manslaughter because they should have known that the
infection was killing the child.
• Under the MPC this could be convicted under negligent
homicide, but not recklessness
• In Illinois, this would not lead to a conviction. The
subjective standard means that the education level of
the parents would be taken into account, and a conviction
could not stand simply because the parents should have
known. Illinois requires that they DO know, and
disregard it anyway.
o ILCS 9-3
 (a) A person who unintentionally kills an individual without lawful
justification commits involuntary manslaughter if his acts
whether lawful or unlawful which cause the death are such as
are likely to cause death or great bodily harm to some
individual, and he performs them recklessly, except in cases in
which the cause of the death consists of the driving of a motor
vehicle or operating a snowmobile, all-terrain vehicle, or
watercraft, in which case the person commits reckless homicide.
A person commits reckless homicide if he or she unintentionally
kills an individual while driving a vehicle and using an incline in
a roadway, such as a railroad crossing, bridge approach, or hill,
to cause the vehicle to become airborne.
o MPC 210.4 Negligent Homicide:
 Homicide when the killing results from negligence

- Felony-Murder
o Two Approaches to Felony-Murder
 Certain Felonies may themselves create a recognized
danger to killing people, for which people can be charged
with murder.
• This is not because of the felony murder rule, but because
the acts are so dangerous to human life
• You need to prove that the person knew of the danger to
human life
• Most common in the United Kingdom and in the MPC
 Strict Liability
• Most prevalent in the United States
• You commit a forcible felony and kill someone, that is
murder
o Merger Doctrine
 When the felony is so wrapped up with the killing that you
must find malice aforethought, the felony-murder rule does not
apply. i.e. When the felony is committed for the purpose of
killing the defendant must be charged with malice
aforethought. When a felony committed for the purpose of
that felony, and a killing happens, then you can use the felony-
murder rule
• E.g. assault with a deadly weapon cannot be used for the
felony-murder rule if the assault leads to death.
 Read notes on the rationale of the felony-murder rule (p. 439)
o Regine v. Serné
 A man burned his house down to get the insurance on it and his
retarded (literally) child died in the inferno. Prosecutor wanted
to charge the man with murder because he should be
responsible for the injuries caused by his arson. Court says no,
but arson can be used to show malice aforethought or a
depraved and malignant heart
o Common Law:
 For the felony-murder rule to apply, the predicate felony must
be inherently dangerous to be used, but not so wrapped up in
the killing that malice aforethought must be charged.
 People v. Phillips
• A chiropractor claimed to be able to fix eye cancer, he
killed his patient in surgery….because he was a
chiropractor…performing surgery…on a man’s head.
Court said that this felony, medical fraud, was not
inherently dangerous enough to use the felony-
murder rule
 People v. Stewart
• A mother went on a crack binge and neglected her child.
It died. Court said that it is up to the JURY to decide
if the predicate felony is inherently dangerous
enough to use the felony-murder rule.
- Illinois
o Felony-murder bumps lower murder charges up to first-degree
murder because the predicate felony replaces the malice
aforethought requirement
o People v. Morgan
A kid killed both of his grandparents. He was convicted of first-degree
murder against his grandmother under the felony murder rule. The
predicate felony was unlawful discharge of a firearm. He was
convicted of second degree murder of his grandfather. Defense
argued that the predicate felony was wrapped up in the killing and
should not be used to bump second-degree murder up to first degree.
Court says this is sound logic, but the jury was instructed on
both felony-murder and murder in the second degree and
returned a general guilty verdict.
 Wrap-up of Morgan:
• When a general verdict is given, the gravest offense is
assumed as the one convicted of
• The heat of passion defense from Chevalier DOES NOT
apply to felony-murder. Heat of passion negates malice
aforethought which does not have to be proven under
felony-murder.
o People v. Burton
 You may only be convicted of felony-murder if the felony was
being committed independent of the homicide.
o ILCS 2-8 – Forcible Felonies
 Only forcible felonies will qualify as predicate felonies under
the felony-murder rule
 Forcible Felonies:
• Treason, first degree murder, (second degree
murder does not count for felony-murder),
• Predatory criminal sexual assault of a child,
aggravated criminal sexual assault, criminal sexual
assault,
• Robbery, burglary, residential burglary, aggravated
arson, arson,
• Aggravated kidnapping, kidnapping, aggravated
battery resulting in great bodily harm or permanent
disability or disfigurement and
• Any other felony which involves the use or threat of
physical force or violence against any individual.

- Proximate Cause Theory versus Agency Theory


o Proximate Cause Theory:
 If the killing is proximately caused by the felony then the
people involved in the felony can be charged with felony-
murder, even if they didn't actually do the killing. This is
because it is foreseeable that the felony will lead to the death
of another (this is a basic definition of how to find proximate
cause, look it up in Torts notes for a better definition)
• Illinois follows this rule
o Agency Theory:
 Felony murder will only apply to killing by the felon or one
acting on behalf of the felon (making the person an agent of
the felon)
- Duration of the Felony:
o Courts have said that felony will include the immediate departure
from the scene
 After the immediate departure, the felony is concluded to have
ended

- Death Penalty
o Illinois:
 The jury must find one or more aggravating circumstances
existed at the time of the killing, then they would be able to
hear a death penalty request.
• This calls for a bifurcated trial. A trial on the murder
charge and a trial on the aggravating circumstances
 ILCS 9-1(b)-(k) – Aggravating Circumstances:
• Lists the aggravating circumstances leading to a possible
death penalty sentence
o Other States:
 First-degree murder is a capital offense period.
o Supreme Court Rulings:
 The death penalty may not be given to:
• Rapists (unless the victim dies)
• The mentally retarded
• People under 18

IX. ATTEMPT
- Illinois:
o ILCS 8-4:
 (a) Attempt requires that someone, with intent to commit a
specific offense, does any act which constitutes a substantial
step towards the commission of that offense.
 (b) It is not a defense to attempt that, because of a
misapprehension of the circumstances, it would have been
impossible for the accused to commit the offense attempted.
o Illinois charges attempt as a separate crime, therefore there is a
separate mens rea and actus reus for the offense.
 Attempt is an inchoate crime
o Attempt is punished a grade below the actual crime
 E.g. attempt first degree murder is sentenced as second degree
murder
- Common Law:
o Attempt is prosecuted as a misdemeanor
- MPC:
o Attempt carries the same sentence as the crime itself
 E.g. attempt murder carries the same sentence as murder
- Sentencing:
o Why are the sentences different under the MPC and ILCS?
 It goes to the view of the crimes. People don’t agitated as much
over people who try to kill but fail versus people who succeed
at murder.
• The MPC is more utilitarian. It charges success the
same as failure because they want to keep society safe
from killers, even if they aren’t very good at killing
• Illinois is more for retribution in their sentencing. Failure
should not bring as grave a punishment as success
• Supporters of deterrence would not approve of the MPC
model because if you are punished the same for attempt
as success then why not keep shooting until you get the
kill?
- Intent as an Element of Attempt
o You must intend to commit the crime which you end up attempting.
Therefore, you cannot attempt manslaughter, or any involuntary
crime. You could maybe attempt voluntary manslaughter (killing in the
heat of passion) if, for instance, you shoot at someone in the heat of
passion and miss.
o Illinois
 Under ILCS 9-2(a) the Supreme Court of Illinois has said you
cannot commit attempted voluntary manslaughter. This is in
reference to 9-2(a)(2), the unreasonable self-defense issue.
• Norton does believe that it could be possible to attempt
2nd degree murder under 9-2(a)(1), the “heat of passion”
modifier.

- Degree of Success to Convict of Attempt


o Last Step:
 You would have to commit the last step before actual
commission of the offense in order to be convicted of attempt
• This was the common law rule, but has been overturned.
o Dangerous Proximity:
 Current Common Law Rule
 You must come within a dangerous proximity of success in
completing the act
 People v. Rizzo
Some guys intended to rob a man who was carrying a
companies’ payroll sack. The men went to where they thought
the guy was, and the cops stopped them and arrested them. It
was discovered that the payroll man was not anywhere to be
found. Court refused to convict of attempted robbery
because there was nobody to rob, so the men could not
have reached a dangerous proximity to success.

 The Continuum of Attempt


0
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====8/9==================10
| | |
|
Intent w/o act Dangerous Proximity Last Step
Commission of Act

o Substantial Step:
 Illinois & MPC 5.01(2) Rule:
• Norton believes that ILCS has incorporated the dangerous
proximity rule into its code, even if it has not been
expressed.
 Abandonment Defense:
• The MPC allows a defense of “abandonment” of the
attempt. ILCS does NOT.
o This is a good reason to think that Illinois uses the
dangerous proximity test to determine a
substantial step, because if you were not
dangerously close you wouldn’t need to abandon
your attempt, there would be no crime to begin
with.
 Therefore, MPC probably requires less to
have been done to constitute a substantial
step than ILCS
o Impossibility Defense
 If something is inherently impossible then that is a defense to
attempt (e.g. using a voodoo doll to commit murder is inherently
impossible [a.k.a. legally impossible]. Sticking your hand into an
empty pocket is not a legal, inherent, impossibility, it is a
factual impossibility.
• Factual impossibility is not a defense. I guess the
difference is that sticking your hand in a pocket, you
could steal something if something were there. No matter
what you do with a voodoo doll, you cannot kill someone.
o Attempt of Non-Crimes:
 If the crime you attempted is not a crime, then you cannot be
convicted of it.
• E.g. you cannot be convicted of attempted hop-scotching
because it is not illegal to hop-scotch
 If the offense you attempt is real, but what you do is not, you
may still be convicted because mistake of law is not a
defense.
• E.g. if you traffic in oregano, thinking that oregano is
illegal, then you can be convicted of attempted
trafficking of a controlled substance.
o This is because “trafficking of a controlled
substance” is illegal, and you attempted it, but
failed. (seems weak sauce because you didn’t
really take a substantial step, you had oregano).
o Attempt is an inchoate crime, so if the crime is actually committed
then there is not attempt. Attempt means the crime failed.

X. ACCOUNTABILITY
- Illinois Rule:
o The issue is if someone is accountable (defined in ILCS 5-1; 5-2; 5-
3)
o ILCS 5-2:
 A person is legally accountable for the conduct of another
when:
• (a) Having a mental state described by the statute
defining the offense, he causes another to perform the
conduct, and the other person in fact or by reason of
legal incapacity lacks such a mental state; or
• (b) The statute defining the offense makes him so
accountable; or
• (c) Either before or during [i.e. NOT after] the
commission of an offense, and with the intent to promote
or facilitate such commission, he solicits, aids, abets,
agrees or attempts to aid, such other person in the
planning or commission of the offense.
o [The “having a mental state described…in 5-2(a) is
only relevant when you use a juvenile or innocent
to do your dirty work. 5-2(c) uses the term
“intent,” and that is the prevalent mens rea]
 Defenses:
• Unless the statute explicitly express otherwise, a person
is not accountable if:
o He is a victim of the offense committed; OR
o The offense is so defined that his conduct was
inevitable incident to its commission; OR
o Before its commission, he terminates his effort
to promote the offense AND either: (1) wholly
deprives his prior efforts of effectiveness in such
commission, or (2) gives timely warning to the
proper law enforcement authorities, or (3)
otherwise makes proper effort to prevent
commission of the offense
o The principal actor does not need to be convicted of the act for
accountability to be found.
o In Illinois you must prove that the crime was committed in order to
convict someone for aiding and abetting.
 If the crime is not committed you could still charge the person
with attempted aiding and abetting
 CAVEAT:
• The accountability charge will be tried separately from
the principal. I.e. the principal could be acquitted in his
trial, but in the accountability trial the prosecution could
convince the jury that the principal did commit the crime.
Therefore, it is possible to be convicted of
accountability even if the principal is acquitted in
his trial.
- MPC:
o The issue is if someone is an accomplice
- Common Law:
o Two Categories:
 Principal
• These people actually took part in the crime
o First degree: actually committed the crime (thief,
etc.)
o Second degree: Aided in the crime while there
(lookout, getaway driver, etc.)
 Accessory
• These people aid before or after the fact.
- When you are accountable for a crime you are aiding and abetting that
crime.
- Mental State for Accountability
o Intent must be shown.
o United States v. Hicks
Two men were talking with the victim and one of the men pointed a
gun at him. The other man shouted words which seemed to
encourage the gun-wielder. The man with the gun shot and killed the
decedent. Court says that the man who shouted words of
encouragement did not meet the standard of accountability
because he did not intend to support or further the crime.
 The court says that the accountable party must share a
common criminal design with the offender, which was not
present here.
 The court also says that mere presence when an act occurs
does not constitute accountability (common criminal
design).
• Wilcox v. Jeffry
A Jazz Music Magazine writer went to a jazz concert which
was being illegally performed and clapped and wrote a
positive article about it. Court convicted him of aiding
and abetting illegal activity because his presence
there was evidence of his intent to support and
further the behavior.
o Presence alone is not enough, but he was there and
he was supporting the event. If he went there to
protest the event it would have been different
o State v. Gladstone
A guy went to Defendant to buy weed. Defendant didn’t have any, but
he drew a map for the guy to find the house of someone who may
have had some to sell. Defendant was charged with aiding the sale of
narcotics. Court says that Defendant did not show a purposive
act in furtherance of the crime. He drew a map showing where
someone may or may not have been able to commit the
offense.
 The dissent said the jury should have been allowed to determine
if the map drawing was a purposive act or not
- Group Criminality
o People v. Luparello
A guy told people he wanted some information no matter what. Those
people kidnapped, tortured, and killed a man to get that information.
Court said that the original guy was accountable because he
should have reasonably foreseen that as a possible outcome.
 The reasonable foreseeability of the consequences shows a
common criminal design, and that is good enough to satisfy
the general intent requirement of accountability. According to
People v. Perez (TWEN) intent can be shown by (1) showing that
the accountable party shared the criminal intent of the principal
or (2) shared a common criminal design with the principal
• That is also why the negligence of the steamship captain
in the steam boiler case was accountability for
manslaughter. He shared a common criminal design
(criminal negligence) with the principal actors.
o People v. Russell
A group of people had a gun battle and someone shot and killed a
bystander, but it is unclear who actually fired the fatal shot. All men
were convicted of second-degree murder (not first degree due to
provocation of either “mutual combat” or “substantial physical
assault” not sure which). Court says that the men knowingly and
intentionally engaged in hazardous activity which encouraged
the other men’s actions. Just because the men were
adversaries does not mean they were not supporting and
furthering the criminal act.
 The court basically says that if the other men weren’t there
shooting, then the crime of second-degree murder would not
have happened. So their actions were intentional furthering of
murder.

XI. CONSPIRACY
- Two Aspects of Conspiracy (State Level):
o Inchoate Crime
 Under Illinois law you cannot be convicted of an inchoate crime
and the object of that crime. You can be charged with both the
inchoate and the principal offense, and the jury can return a
verdict on both, but if the conviction comes back for both then
the principal offense is the only one sentenced.
• MPC and ILCS follow the rule that the conspiracy and the
object of the conspiracy merge.
o The Federal rule does not call for merger. So you
could be convicted of conspiracy to commit robbery
AND robbery
o Pinkerton v. United States
Two brothers were bootleggers during Prohibition.
One brother was in prison and the other was selling
unlicensed alcohol. The imprisoned brother said
that he could not be convicted because he was in
prison the whole time. Court says that he was
in conspiracy with his brother on the outside
and he could be charged with that conspiracy
and the object of that conspiracy.
 As stated above, MPC and ILCS reject the
Pinkerton rule
o Conspiracy is a crime striking against the special danger
incident to group activity
- Illinois
o ILCS 8-2
 A person commits conspirace when, with intent that an offense
be committed, he agrees with another to the commission of
that offense.
- Differences Between Federal and State Conspiracy:
o Venue Shopping:
 A federal conspiracy trial can be held in any district where any
act of any part of the conspiracy took place.
• E.g. A plot to blow up the Statue of Liberty was tried in
the State of Washington, alleging that some act in
furtherance of the conspiracy was conducted in
Washington.
o In reality, the Attorney General just wanted to ship
a dissident group out of New Jersey for a while so
he forced them to go to Washington to face trial.
o Degree of Punishment:
 At the federal level conspiracy is a felony. Therefore, you could
be convicted of conspiracy to commit a misdemeanor, but the
degree of the punishment would be a felony.
• In Illinois, you will not be convicted of a felony for
conspiracy to commit a misdemeanor EXCEPT for
conspiracy drug charges, which is handled by its own
statute.
- Other Criticism of Conspiracy
o Evidentiary Exception
 A statement made by co-conspirators can be used as evidence
against all other co-conspirators even if it would only qualify
as hearsay evidence.
• This applies at State and Federal levels
o Mass Trial:
 Conspiracy trials will often be a series of vague charges laid
against several co-conspirators
• Juries will often have a difficult time determining specific
culpability with regard to a particular defendant
o I.e. an innocent person is much more likely to be
wrongfully convicted when he is tried in a mass trial
with other suspected criminals.
- Impact of Conspiracy on the Statute of Limitations
o The statute of limitations to bring a conspiracy charge begins to run
when the conspiracy has ended. This means that if the conspiracy
is “ongoing” then the statute of limitations is not running.
 Particularly pertinent for terrorism charges
- Elements of the Crime:
o ILCS 8-2(a):
 A person commits conspiracy when, with intent that an
offense be committed, he agrees with another to the
commission of that offense. No person may be convicted of
conspiracy to commit an offense unless an act in furtherance of
such agreement is alleged and proved to have been committed
by him or by a co-conspirator.
• The fact that other co-conspirators have been acquitted or
not even charged does not negate charges or convictions
for other co-conspirators
- What is Required for Conspiracy?
o An agreement:
 Illinois:
• Requires a bilateral agreement to commit the crime in
order to convict of conspiracy to commit that crime
o Both people intend to commit the crime
o The majority of jurisdictions use this approach.
 MPC:
• Requires only a unilateral agreement.
 State v. Hayes
Defendant tried to convince a Mr. Hill to rob a store with him.
Hill was related to the store owners, so he agreed with the
intent of getting Defendant arrested for burglary. Court said
that since Mr. Hill did not make an unlawful entry with
intent to steal therein he did not commit a crime and
Defendant cannot be accountable for it.
• This case goes to accountability and conspiracy. The
two concepts are liked closely.
o Here, Defendant is not accountable because no
crime was committed.
o Defendant was not a conspirator (in Illinois)
because there was no bilateral agreement. There
was a feigned agreement.
 MPC may still allow conviction for conspiracy
here.
• This would not be entrapment
because Hill was not a public officer
- Entrapment
o ILCS 7-12
 A person is not guilty of an offense if he was induced to commit
that offense by a public officer, unless there is evidence that
he was predisposed to commit the crime before
inducement.

XII. JUSTIFICATION AND EXCUSE


- Use of Force in Self-Defense and Defense of Others
o ILCS 7-1 – Defense of Person (use of force)
 A person is justified in the use of force against another when
and to the extent that he reasonably believes that such
conduct is necessary to defend himself or another against such
other's imminent use of unlawful force.
• Use of Deadly Force:
o A person is justified in the use of force which is
intended or likely to cause death or great bodily
harm only if he reasonably believes that such
force is necessary to prevent imminent death or
great bodily harm to himself or another, or the
commission of a forcible felony
 Self-defense is justified based upon what a reasonable person
in the defendant’s position would believe is necessary
• Sort of follows the Goetz Rule
o People v. Goetz
Defendant was on a subway with a concealed handgun. Four men
tried to mug him for $5, so he shot all of them. He had been mugged
before and was especially conscious of that threat. As the men
were running away, Defendant kept shooting. He was charged with
attempt murder. Court says that Defendant had to reasonably
believe that his use of force (deadly force here) was
necessary.
 Due to Defendant’s prior history with mugging, his use of force
may have been reasonable, but shooting at fleeing attackers
was not reasonable, even given his subjective state of mind.

- Battered Woman Syndrome


o Battered woman syndrome is not a defense, it can be used as
relevant evidence to a defense of self-defense.
 The question asked still is whether the act is reasonable.
o State v. Kelly
A woman was being berated by her drunk husband. She had been
through this before and knew that this behavior lead to severe
beatings, so she stabbed and killed him with scissors. Court did not
allow battered woman syndrome as a defense, but allowed the
jury to hear evidence brought forth by it.
 The court was willing to let the syndrome help determine if the
woman’s behavior was reasonable
o State v. Norman
A woman, who had been subjected to repeated abuse, shot and killed
her husband while he slept. She claimed battered woman defense.
Court said that she was unreasonable in acting because use of
deadly force must be in response to an imminent threat of
severe bodily harm or death.
 Illinois subscribes to the imminent harm standard as well.
• When using deadly force the imminent harm is not just
unlawful force (as with using non-lethal defense), but is
severe bodily harm or death.

- Use of Force in Defense of Others Standards


o Common Law:
 You can defend another, but except for family members, the
defender puts himself in the shoes of the person he is
defending.
• Same as civil law
o Illinois:
 Uses the ILCS 7-1 standard of reasonableness.

- Use of Force in Defense of Property:


o ILCS 7-3:
 A person is justified in the use of force against another when he
reasonably believes that such conduct is necessary to prevent
or terminate such other's trespass on or other tortious or
criminal interference with either real property (other than a
dwelling) or personal property, lawfully in his possession or
in the possession of another who is a member of his immediate
family or household or of a person whose property he has a legal
duty to protect
• Use of Deadly Force in Defense of Property:
o A person is justified in the use of force which is
intended or likely to cause death or great bodily
harm only if he reasonably believes that such force
is necessary to prevent the commission of a
forcible felony.
 Brink’s Hypo:
• Could a Brink’s guard use a sidearm in defense of the
money in his Brink’s truck?
o Maybe, forcible entry with intent to steal therein is
burglary, a forcible felony. The guard would have
to reasonably believe the force to be necessary
• What if the money bag fell out of the truck?
o Not in Illinois. This is not forcible entry
(burglary), nor is it stealing by use or threat of force
(robbery), it is just theft. Theft is not a forcible
felony.
- Liability for Defender
o The “aggressor” in these situations has no claim for liability against the
defender UNLESS the defender used wanton or willful misconduct

- Use of Force in Defense of a Dwelling


o ILCS 7-2
 A person is justified in the use of force against another when he
reasonably believes that such conduct is necessary to prevent
or terminate such other's unlawful entry into or attack upon a
dwelling.
 Use of Deadly Force in Defense of a Dwelling
• A person is justified to use deadly force if:
• (1) The entry is made or attempted in a violent, riotous, or
tumultuous manner, and he reasonably believes that such force is
necessary to prevent an assault upon, or offer of personal violence
to, him or another then in the dwelling, or
• (2) He reasonably believes that such force is necessary to prevent
the commission of a felony [Note it does not say “forcible felony”
in the dwelling.
o To justify the use of deadly force the defender must reasonably
believe he is preventing violence or felony against him or others.

- Duty to Retreat
o Common Law:
 The right to self-defense is a defense of necessity, so if you
could avoid killing someone by retreating then you must.
• In defense of a dwelling, the home is a castle, and no
duty to retreat applies.

- Necessity versus Compulsion


o Illinois:
 People v. Unger
A guy was in prison and had been raped and had been
threatened with death if he were to report the rapes. He
escaped from prison, allegedly to find help and then
immediately return. He claimed the defense of necessity.
Court said that if all that Defendant said were true, he
would have a valid defense of necessity.

Compuls A defense used when defendant is deprived of his free will


ion by the threat of imminent physical harm

Necessit Conduct which would otherwise be an offense is justifiable


y by reason of necessity if the accused was without blame in
occasioning or developing the situation and reasonably
believed such conduct was necessary to avoid a public or
private injury greater than the injury which might
reasonably result from his own conduct

- City of Chicago v. Mayer


A medical student was at a protest and one of the protesters suffered what
appeared to be a spinal injury. The police attempted place the protester in a
paddy wagon, but the student interfered saying that they could only move
the protester with a neck-board. Student was charged with disorderly
conduct, he claimed necessity. Court said that necessity was
appropriate, because the student’s resistance was minor and the
potential harm avoided was great.

- Felony-Murder Rule and the Compulsion Defense


o Compulsion is NEVER a defense for murder. However, compulsion
CAN be a defense to the predicate felony used to convict of murder.
 E.g. a person could be compelled to commit armed robbery, and
use that compulsion to beat a murder charge from the felony-
murder rule.

- Justification versus Defense:


o Sometimes using force is good to resist.
 e.g. if you are using force in defense of another. So battery
could be justified
o Other times, it is not good, but it is a defense
 e.g. if a child commits a violent crime. The excuse is infancy,
but the force was not good or justified.

- Mental Illness
o Execution of the Mentally Ill
 Those who cannot understand that they are about to die
may NOT be executed.
• This is because they cannot make peace with their
Creator beforehand.
o Insanity Defense
 Insanity is a legal term, not a medical term
• Mental illness alone is not enough.
 The M’Naghten Rule:
• It is perfectly useless for the law to attempt, by
threatening punishment, to deter people from committing
crimes if their mental condition is such that they cannot
be in the least influenced by the possibility or probability
or subsequent punishment; if they cannot understand
what they are doing or cannot understand the
ground upon which the law proceeds.
 MPC on Insanity:
• MPC 4.01(1)
o A person is not responsible for criminal conduct if
at the time of such conduct as a result of mental
disease or defect he lacks substantial capacity
either to appreciate the criminality [wrongfulness]
of his conduct or to conform his conduct to the
requirements of law.
 Federal Law:
• It is an affirmative defense to a prosecution under any
Federal statute that, at the time of the commission of the
acts constituting the offense, the defendant, as a result of
a severe mental disease or defect, was unable to
appreciate the nature and quality or the wrongfulness of
his acts. Mental disease or defect does not otherwise
constitute a defense.
o Very similar to M'Naghten and the Illinois rule.

 Difference Between M'Naghten and MPC:


• M'Naghten is purely a cognitive impairment statute. MPC
deals with volitional impairment as well (ability to conform
his conduct).
• MPC can be used if someone is mentally ill and knows
what he is doing, but his illness keeps him from being
able to conform his behavior to what is acceptable.
• EX: A person thinks God has told him he must kill
someone. He knows what he is doing is criminal, but he
cannot control his actions.
o Only the MPC would provide a defense of insanity
here. Illinois and the Federal statutes would not
allow insanity in this case.
• EX2:The defense would be used when someone is so
mentally ill that he doesn't know what he is doing.
o Illinois and Federal statutes would allow insanity
here.
• After John Hinkley attempted to assassinate Reagan
Congress brought federal law back to the M'Naghten Rule.

 Burden of Proof/Persuasion for Insanity


• The defendant bears the burden of persuasion by clear
and convincing evidence (more than beyond a
reasonable doubt)