Criminal Law Outline From 2005



CAUSATION (sometimes) either actual or proximate CONCURRENCE Actus Reus must occur at same time that D has mens rea. Transferred intent: Homicide Corporations can't have mens rea For homicide, V must die. SPECIFIC INTENT CRIMES Murder

Attempt Conspiracy Larceny False Pretenses Embezzlement MPC

INTENT STANDARDS Purposely: With the conscious object of engaging in certain conduct or causing a certain result Knowingly: With awareness that the conduct is of a particular nature, or knowing that the conduct will very likely cause a particular result Recklessly: With knowedge of a substantial and unjustifiable risk that is being consciously disregarded Criminal Negligence: Failure to be aware of a substantial and unjustifiable risk, where such failure is a substantial deviation from the standard of care.



MPC 210.2 Murder

Criminal homicide is murder if committed purposely or knowingly or

Committed recklessly under circumstances manifesting extreme indifference to the value of human life . . .

Criminal homicide is manslaughter if recklessness is less extreme

Negligent homicide: D created a substantial and unjustifiable risk of which he should be aware and, failure to perceive risk was a gross deviation from reasonable person standard of care

MPC Manslaughter:210.3

Criminal homicide is manslaughter when:

It is committed recklessly; or

Under influence of extreme mental or emotional disturbance:

1. particular D must have acted under influence of extreme emotional disturbance (subjective inquiry) and if yes, then

2. must be a reasonable explanation or excuse for such disturbance (more of an objective inquiry)

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 (not a question of whether the killing was supported by a reasonable explanation or excuse)

MURDER Common Law i. ELEMENTS: 1. The unlawful killing 2. Of a human being 3. With malice aforethought

ii. MALICE AFORETHOUGHT 1. Intent to kill a. Intentional use of a deadly weapon authorizes an inference of intent to kill. b. Counts even if mercy killing 2. Intent to commit serious bodily injury SEE mpc 210.0 3. Wanton/reckless conduct (depraved heart) 4. During the commission of an inherently dangerous felony (BARRK)

iv. Degrees 1. First degree is usually premeditated. 2. Felony murder will usually be first-degree murder.

FELONY MURDER i. D must actually be found guilty of the underlying felony. ii. Felony must be distinct from the killing itself (i.e. not the battery that caused the death). iii. Death must have been a foreseeable result of the felony. iv. Death must have been caused before the D's "immediate flight" ended. 1. Once D reaches a place of safety - no longer felony murder. v. D usually not liable when a co-felon is killed because of resistance by V or the police. vi. D not liable for felony murder when an innocent party is killed UNLESS the death is caused by D or his accomplice. 1. Under the "proximate cause" theory, D WILL be liable if the innocent party is killed by V or police.

**no felony-murder in MPC; instead, reckless and extreme indifference to human life may be presumed if D causes death of another during commission of an enumerated felony (robbery, arson, burglary, etc.)

VOLUNTARY MANSLAUGHTER i. ELEMENTS: 1. Common-law murder or Depraved heart murder (implied malice): wanton or extreme indifference to human life - probability that conduct will cause death 2. D was provoked. ii. ADEQUATE PROVOCATION 1. Will be adequate only if:

a. It was a provocation that would arouse sudden and intense passion in the mind of a reasonable person, causing him to lose control AND b. D was in fact provoked AND c. There was no cooling off period AND d. D did not in fact cool off between the provocation and the killing.

iii. IMPERFECT SELF-DEFENSE 1. In states recognizing this rule, it will allow murder to be reduced to voluntary manslaughter IF: a. D killed in self-defense, but HE started the fight, OR b. D killed in self-defense because he believed it was necessary, but that belief was unreasonable.

INVOLUNTARY MANSLAUGHTER i. UNINTENTIONAL KILLING 1. V was killed because D was criminally negligent (although he did not intend V's death). 2. Less "reckless" than required for depraved heart murder. ii. MISDEMEANOR MANSLAUGHTER 1. Killing happened while D was committing an unlawful act that doesn't count qualify it for the felony murder rule. 2. Usually must be "malum in se" not just "malum prohibitum" Common Law

Murder is the killing of any person with malice aforethought, either express or implied.

Malice is the wrongful intent to injure another and indicates a wicked or depraved spirit intent on doing wrong. It does not of necessity import ill-will toward the individual injured, but signifies rather a general malignant recklessness of the lives and safety of others.

The mental state of malice must precede and coexist with the act that caused killing.

The State must prove malice aforethought beyond a reasonable doubt and that this intentional action was the proximate cause of the death of the victim.

The defendant is entitled to every inference in his favor which can be reasonably drawn from the evidence. If two inferences can be drawn from the same facts, the defendant is entitled to the inference which is consistent with not guilty.

An inference standing alone can never prove the State's case beyond a reasonable doubt. There must be ample evidence other than the inference.

To prove proximate cause the State must prove beyond a reasonable doubt that there would have been no death "but for" any such malicious action by the defendant.

Voluntary manslaughter is the intentional and unlawful killing of another without malice or in the sudden heat of passion resulting from sufficient legal provocation. The State must prove beyond a reasonable doubt that the defendant intentionally acted with the intent to kill without just cause or excuse and that this conduct was the proximate "but for" cause of the death of the victim.

A sufficient legal provocation is one that would cause a person of ordinary reason and prudence to become provoked and experience sudden heat and passion. It need not overpower knowledge, rationality and volition. Instead it need only to disturb or upset reason and render the mind of an ordinary person incapable of cool reflection. Sufficient legal provocation negates malice. Things to consider are the defendant's physical and mental condition, sex, situation at the time of the conflict, and his education and background.

It is for the jury to determine if there was sufficient time between the provocation and the killing for the ordinary prudent person's passions to have cooled.

Examples of sufficient provocation are

pointing a gun

physical assault

insulting words accompanied by threatening actions

finding ones spouse in a sexual act with another

humiliating acts like tweaking of nose

deliberate destruction of a pet

Involuntary manslaughter is the unintentional killing of another without malice if the killing results from the reckless disregard of another and this reckless action was the proximate "but for" cause of the death of the victim.

Recklessness means something more than mere negligence or ordinary carelessness (due care). Due care means such care as a person of ordinary reason and prudence would exercise. Recklessness requires a conscious awareness that one is not exercising due care. When a person acts negligently and knows he is acting negligently, the law says that person is reckless. Use this where there was a duty to act and D did not act.

The State must prove three things to show the defendant was reckless.

The risk could have been eliminated by the exercise of ordinary care.

The conduct of the defendant was negligent because ordinary care was not in fact exercised.

The defendant was aware that the risk could be eliminated by ordinary care but deliberately proceeded and showed a callous knowing disregard of the right of others.

The defendant is not guilty even if he was engaged in a negligent or unlawful act and if this negligence caused the accidental killing unless the defendant was reckless. The fact there was a death is not sufficient to establish recklessness.


LARCENY ELEMENTS: i. A taking ii. And carrying away

iii. Of tangible personal property iv. From the possession of another v. By trespass (includes consent obtained by fraud) vi. With intent to permanently deprive that person of her interest in the property vii. At the time of the taking. Intent i. The intent to permanently deprive the person of the property must exist when it is taken! Can't change mind later. 1.

BUT "continuing trespass": If original taking was WRONGFUL but no intent to permanently deprive, and D later changes her mind and decides to keep it, then it's still larceny. a. This will not apply if original taking was NOT wrongful (i.e. D thought it was hers). ii. Intent to put the property at a substantial risk of loss is enough. Compare embezzlement: No taking from the possession of another, because the person already has possession (bailee). i. Low-level employee stealing = larceny ii. Upper management stealing = embezzlement

EMBEZZLEMENT ELEMENTS: i. The fraudulent ii. Conversion iii. Of personal property iv. Of another v. By one in lawful possession of that property. An intent to defraud is required. i. Not embezzlement if D believed it was hers. If D intends to return THAT SAME EXACT property, it's not embezzlement. i. BUT intent to return the same or similar property is still embezzlement (even money)

FALSE PRETENSES ELEMENTS: i. Obtaining title ii. To personal property of another iii. By an intentional false statement iv. Of a past or existing fact v. With intent to defraud the other. Compare: Larceny by trick i. That's where mere possession of the property is given up - here, title is actually passed. V must actually be deceived by the misrepresentation, and must be a major factor in V passing title to D. "HELPING" CRIMES

ACCOMPLICE LIABILITY Elements: i. Give aid, counsel, or encouragement ii. To the principal iii. With the intent to encourage the crime.

iv. Mere knowledge that a crime will result is NOT enough. An accomplice is liable for the crimes he did or counseled AND any other crimes that were foreseeable/probable. If an accomplice withdraws from the crime BEFORE it becomes unstoppable, he is not liable. i. Withdrawal = REPUDIATION and ATTEMPT TO NEUTRALIZE any assistance. Telling the cops or taking other action to stop the crime is also sufficient. MPC 5.01 Levels i. Principal = convicted of main crime ii. Accessory before the fact = aids and abets but is not present. iii. Principal 2 (present at the scene) = convicted of main crime iv. Accessory after the fact = separate crime of being an accessory after the fact. Silence alone is not sufficient. D completed the crime, D2 knew that D had committed the crime, D2 then provided help to avoid the arrest, D2 provided the help with the specific purpose or plan of helping D avoid arrest or punishment.

ATTEMPT Elements: i. A substantial step toward an act ii. Done with intent to commit a crime iii. That falls short of completing the crime Must intend to do something that, if completed, would actually be a crime. Abandonment is NO defense: Crime is complete once D has INTENT and makes a SUBSTANTIAL STEP Substantial step must be more than mere preparation. Merges w/completed crime CONSPIRACY Elements: i. An agreement between two or more persons ii. An intent to enter into the agreement iii. Intent by at least two persons to achieve the objective of the agreement iv. Majority of states: Overt act (mere preparation OK) Conspirators are liable for all crimes committed by co-conspirators so long as they were: i. Committed in furtherance of the objectives of the conspiracy AND ii. Were foreseeable Conspiracy terminates when the wrongful objective is complete. i. Acts of concealment and other things happening after do not count. There must be proof the conspirators intended to act together for a shared mutual benefit; similar objectives between similarly situated people do not count. Withdrawal MPC 5.01 i. Still liable for conspiracy, but possibly not for subsequent crimes committed in furtherance. ii. Requirements for withdrawal: 1. Notify all co-conspirators 2. Give notice in time for members to abandon the plan 3. Try to neutralize any assistance given Separate sub-conspiracies: i. Chain type: All members liable for all crimes ii. Hub-and-spoke type: Members only liable for crimes committed in furtherance of their sub-

conspiracy NO conspiracy if person pretended to agree in order to tell the police Agreement can be inferred from joint activity A corporation can't conspire Traditional view - if all persons D conspired with are acquitted, then D can't be convicted of conspiracy. i. BUT if alleged conspirators are never prosecuted because they can't be found, that's different. DEFENSES

Categories of Defenses

Failure of proof: govt has not proven all elements beyond a reasonable doubt (D is acquitted)

Offense modifications: D has committed offense but has not in fact caused harm

Public policy defenses: statute of limitations, diplomatic immunity, incompetency

Justifications: harm caused by D's actions is outweighed by need to avoid greater harm (self-defense, e.g.)

If complete defense, then D is acquitted

Excuses: conduct is wrong, but D is excused because should not be held responsible for actions for some reason



Justification defenses

D has burden of production, then gov't has burden of proof beyond a reasonable doubt that justification does not exist

Focus on act or result


Defense of others

Defense of property/habitation


NOTE: IF THERE IS A JUSTIFICATION DEFENSE THEN IT APPLIES TO ACCOMPLICES ALSO AND THEY ARE NOT GUILTY SELF-DEFENSE Deadly force is only available IF: i. She is without fault ii. She is confronted w/unlawful force iii. She is threatened w/imminent death or great bodily harm. If D kills in self-defense but one of these three requirements were not met, some states allow a conviction for manslaughter instead of murder ("imperfect self-defense"). Requirement of retreat before using deadly force: i. MINORITY of states say must retreat UNLESS: 1. It's in V's house 2. It happens while V is making a lawful arrest 3. Assailant is in the process of robbing V Right of aggressor to use self-defense:i. Can use it if the original V suddenly escalates a minor fight into deadly force OR ii. If the original aggressor withdraws and TELLS V that she is withdrawing.

DEFENSE OF OTHERS Only requirement is that it REASONABLY APPEARED that the person being attacked would have had a right to use force to defend herself.

DEFENSE OF PROPERTY Only non-deadly force may be used to prevent the taking. After the taking is happening, no force is permitted to get it back UNLESS V is in hot pursuit.

INSANITY M'NAUGHTEN i. Mental disease or defect caused D EITHER to: 1. Not know what he was doing was wrong OR 2. Not understand the nature and quality of his actions MPC SUBSTANTIAL CAPACITY i. D's mental disease or defect made him lack the substantial capacity to EITHER: 1. Appreciate the criminality of his conduct OR 2. Conform his conduct to the requirements of law.

IRRESISTIBLE IMPULSE i. Because of a mental illness, D was unable to control his actions or conform his conduct to the law. DURHAM PRODUCT i. D's crime was the product of his mental illness (crime would not have been committed but for the disease)

DIMINISHED CAPACITY (some states) i. D may assert that as a result of a mental defect short of insanity, he did not have the mental state required for the crime charged. ii. Some states allow only for specific intent crimes, others for general intent.

INTOXICATION VOLUNTARY i. Defense ONLY to specific intent crimes (negates mens rea) but in most states it is no defense. Under MPC 2.08 and then only to purpose and knowledge.

INVOLUNTARY i. Treated the same way as insanity.

MISTAKE Even an unreasonable mistake can negate a specific intent crime, if it means D lacked the intent. Mistake of law no excuse UNLESS: i. There was reasonable reliance on a statute or judicial decision OR ii. D's mistake of law caused him to lack the specific intent necessary.

INFANCY Under age 7 - no liability 7-14 - rebuttable presumption of no mens rea Over 14 - treated as adults

NECESSITY Commission of the crime was necessary to avoid an imminent and greater injury to society, from an OBJECTIVE standpoint. BUT causing the death of another person is never justified.

NOT a defense if the person created the situation where he had to choose the lesser of two evils. Necessity must involve pressure from natural or physical forces. Necessity can be a defense of homicide under the MPC 3.02 especially where choice saves more lives. DURESS D only committed the crime because he reasonably believed that another person would IMMINENTLY inflict death or great bodily harm upon him or a member of his family if he didn't commit the crime and there was no other reasonable alternative.

If not guilty of underlying felony due to duress, guilty of felony murder?

No, D can't have killed during perpetration of a crime for which he is innocent NEVER a defense to causing the death of another person except could argue under MPC 2.09 a person of reasonable firmness in his situation would have been unable to resist. SC allows necessity and duress for involuntary manslaughter since the death was not intentional.

Don't forget to argue causation. Was there an intervening cause? What was the actus reus and mens reus? The contributory negligence of the V is not a defense but could be an intervening cause negating proximate cause.

This charge requires recklessness. To be "reckless," D must have been aware of and disregarded a substantial and unjustifiable risk of death. "Extreme indifference" can be shown when there is a high probability of death occurring as a result of the conduct. Here the risk of death was _____ , so there was a substantial risk of death. Did he have an "abandoned and malignant heart" argue the facts.

Self Defense

D will argue he was acting in self-defense. Self-defense is a complete justification for murder and negates any malice. A non-aggressor (one without fault) is justified in using deadly force in self-protection if the actor reasonably believes that its use is necessary to prevent imminent and unlawful use of deadly force by the aggressor. "Deadly force" is force intended or likely to cause death or serious bodily injury. D's argument will be that V had just employed deadly force on him by ____________. D was trying to prevent V _____________ when he _____________. He was therefore reasonable in his belief that deadly force was imminent and that he needed to use deadly force in response. There was no other probable means of avoiding the danger. Need to discuss possibility of retreat. Switch from aggressor to non-agressor. Imperfect self-defense if belief was unreasonable but honest. threating is not deadly force. Shooting a gun into the air is not deadly force, aiming it is. Point out all the facts put yourself in D's shoes. P must prove that a person of ordinary reason, coolness and prudence would not have acted as D did under the circumstances.

An actor who mistakenly kills an innocent person (had a genuine but unreasonable belief as to imminent threat), or who uses more force than necessary will not be acquitted on basis of self-defense

If belief is reasonable, then acquitted

Instead, would be guilty of manslaughter instead of murder (otherwise known as an incomplete or imperfect defense)

MPC 3.04


D will argue that his condition, ______, is a mental disease or defect that rendered him insane at the time of the killing. The term "mental disease or defect" is open to interpretation by experts. D will argue he was insane under one of the following tests. MPC 4.01: 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. This test involves both a cognitive and a volitional (control) component. Some of the characteristics of ______ seem to involve volition - difficulty controlling anger and impulsivity in areas that are potentially self-damaging. D will also argue that his condition fits the common law "irresistible impulse" test, where the D acts from an irresistible and uncontrollable impulse. D will argue that he suffered from such an impulse at the time he _______ and meets both tests.

The other tests at common law include the M'Naghten test: where the defendant must demonstrate that he: (1) did not know the nature and quality of the act that he was doing; or, (2) if he did know, he did not know that what he was doing was wrong. This is a purely cognitive test and one under which the D is unlikely to prevail since there is no indication in his diagnosis that he would not know right from wrong. The P will argue that there is no indication that D lacked substantial capacity to conform his conduct to the law as he lived a normal life on a daily basis and did not normally lose control.

Felony Murder

The prosecution will charge D with murder based on felony murder, a killing which is proximately caused in the perpetration of or attempted perpetration of a felony. Provided P proves ___________, then only issue is whether the death of the _________ was proximately caused by the crime. If the homicide is committed within the res gestae of the initial felony ie: the killing so closely related to the felony in time, place and causal connection as to make it part of the same criminal enterprise, then it is felony murder. Here the P will argue that V ___________ from _______________ and as a result V died.


Not foreseeable. To remote from the crime in terms of causation or D could not foresee.

Accomplice Liability

To be guilty as an accomplice, the prosecution would have to show that the accomplice had the mens rea required for the underlying crime, intent to aid in the commission of the crime, and actually gave assistance. The assistance can come in the form of physical assistance (such as supplying a weapon) or psychological assistance (such as encouragement), but mere presence on the scene with knowledge of the crime is not enough. There is no evidence that X either had the mens rea for the underlying crimes or intended to assist the crimes or tell how X specifically assisted (physical and encourage).


Withdrawal, abandonment, any defense the principal has such as self defense


As far as the actus reus of attempt, the prosecution will argue that, under any test for attempt, X attempted _____. The Model Penal Code 5.01 requires a "substantial step," which must be strongly corroborative of the actor's criminal purpose. By _____, D took a substantial step. Other tests include the physical proximity doctrine - they were _______; the dangerous proximity doctrine - they were dangerously close to committing _______; the probable desistance test - they would have completed the crime if they had _______; the abnormal step test - they had ______; and the last step test - their conduct in getting all of the way to the crime scene and ____________ manifested their intent to commit the crime. D had the required mens rea as shown by __________ and taking the substantial step.

Statutory Interpretation

D will argue that a mens rea should be read into the statute. Both at common law and under the Model Penal Code, every crime is presumed to have an accompanying mens rea, and, if none is provided, that mens rea must be at least recklessness. The rationale for the argument is that it would be unfair to punish a person for acts that they did not somehow intend, or have some reason to know about. People cannot be deterred unless they are aware their conduct is wrongful. Furthermore, in this case the statute carries ___ days of potential jail time, a not insignificant amount of time, therefore cutting against the notion that the statute should be construed as a strict liability statute.

Therefore, if the mens rea the government has to prove is at least recklessness, then D was not consciously aware of the substantial and unjustifiable risk that she was _________ because she had no idea __________. D made a mistake of fact as to whether ______, believing wrongly that _____, and his mistake was reasonable, since he did not appear to know about ______, and therefore it should be a defense to this general intent crime.

The P will argue it is strict liability and no mens rea required.

D will argue that she did not "knowingly distribute" controlled substances to a minor. "Knowingly" should be deemed to modify not only "distribute" but also the attendant circumstance of minor, since that is the social harm the statute is attempting to prohibit and since, otherwise, absurd results would occur. The Model Penal Code also supports this result, because it states that if there is one mens rea term generally appearing in the statute, then it is deemed to modify each and every element of the crime. Therefore, Josephine is not guilty of knowingly distributing to a minor because she did not know that the girl was a minor. Although she looked at the girl's identification, she did not look at her age and was not focused on the girl's age as much as her identity. See Nations (where defendant did not actually "know" the girl's age, even though she may have suspected or been reckless, she was not guilty of contributing to the delinquency of a minor).

The P will argue that "knowingly" only modifies "distribute" and not the attendant circumstance of the girl's minor status, as this is the common law rule of statutory interpretation. It also makes sense, since, like a statutory rape strict liability statute, the emphasis is on the protection of minors, and those who run the risk of distributing to minors will pay the price. However, even if "knowingly" did modify the attendant circumstance, Josephine was "willfully blind" to the girl's minor age. The girl looked to be in high school and Josephine looked right at her identification. If Josephine chose to ignore the girl's age, she can nonetheless be deemed with knowing the girl's age if she was aware of a "high probability" that the girl was a minor. Given that the girl looked to be in high school and was picking up for her mother, Josephine had to be aware of a high probability that the girl was under 18.

A police officer can use deadly force:

1. if the force is necessary to prevent the suspect's successful flight 2. if it is feasible to do so, the officer warns the suspect of her intention to use deadly force, and 3. the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, if not immediately apprehended