3/7/2020

CRIMINAL LAW OUTLINE

1. PURPOSE
What is the purpose of Criminal Law?
A. Punishment
i. Government filing a suit against someone violating the law that the government
said is illegal.
ii. Only type of law where the government can restrain and sometimes kill you
iii. Common Law
1. Views as a process/ technique
2. 4 essential characteristics:
a. General commands/directions
b. Binding on everyone w/in relevant community
c. Backed by punishment/sanctions actually enforced
d. Constitutes a “formal and solemn pronouncement of the moral
condemnation of the community”

2. PRINCIPLES OF PUNISHMENT
Different theories of Punishment
A. Utilitarianism
i. Role of Criminal Punishment: Maximizing Social Utility (Benefiting
Society)
1. Bentham: goal of all law to “augment the total happiness of the
community; and therefore, in the first place, to exclude, as far as may be,
everything that tends to subtract from happiness: in other words, to
exclude mischief.”
2. Goals: crime and harm reduction (deterrence and incentivizing “lesser”
crimes)
ii. Utilitarian Requirements for Punishment:
1. Social harm or disutility (“mischief”)
2. Efficacy (punishment as ability to deter/prevent)
3. Harms associated with punishment lesser than harms associated with
criminalized conduct
 4. Necessary (prevention cannot be efficiently achieved through less extreme
means than criminal punishment)
iii. Factors in Selecting Appropriate Punishment:
1. Intensity
2. Duration
3. Likelihood (certainty/uncertainty)
4. Remoteness versus imminency
B. Deterrence (Part of Utilitarian)
i. Overall Concept – the threat of criminal punishment deters individuals from
engaging in criminalized conduct
1. General Deterrence – punishment of each individual offender helps deter
others from committing the same crime
2. Individual Deterrence – the individual offender who is punished will be
deterred from committing the same crime again
3. Specific Deterrence (aka Incapacitation) – the individual offender is
physically prevented from committing additional crimes by being
imprisoned and/or thereafter supervised (probation/parole)
4. Reform (aka Rehabilitation) – reforming individual’s behaviors linked
to criminal activities
ii. Theory versus Reality
1. Longer sentences =/= commensurate increase in deterrence
2. Imprisonment =/= reduced likelihood of future criminal behaviors, in fact
opposite is true (“institutionalization”)
3. Increased perceived likelihood of apprehension does reduce crime
commission rates to some extent, however, increases in police presence
brings with it other costs (social and fiscal)
C. Retribution
i. General Notion:
1. A “moral imperative to punish” exists based on principle that human
beings must “never be dealt with merely as means subservient to the
purpose of another.” Consequently, criminal punishment is a morally
required (a “categorical imperative”) and thus, as a society we must carry
out sentences even when we don’t want to.
ii. Relationship b/w Law and Morality – Retributivist Perspectives
1. Stephen (1883) – Punishment as a Manifestation of Societal Hatred
2. Criminal law and morality “support” and “greatly intensify” one another
3. Conviction for a crime rightly “stamps a mark … for life” on offender, and
operates to ratify and justify society’s “hatred” caused by the commission
of the crime in question, and hence criminal law “proceeds upon the

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 principle that it is morally right to hate criminals” which is a “highly
desirable” state of affairs
iii. Morris (1968) – Crime Commission as a Form of Unfair Advantage
1. right to punish;
2. deriving from fundamental individual right to personhood;
3. right is fundamental, natural, inalienable, and absolute;
4. denial of right implies denial of all rights/duties
iv. Because each person is entitled to a personal “sphere” within which they are
“immune from interference from others” we all have an innate reciprocal duty to
respect this boundary
v. Punishment resets the scales b/c an offender “renounces a burden” of “self-
restraint” others have assumed and thereby gains an unfair “advantage” that
must be “erased” through punishment
vi. Hampton (1988) – Punishment as Re-Establishing Equality
vii. Those who wrong others, “demean” them in denial of truth that all humans
equal, by acting as “superior”
viii. Therefore, criminal punishment strikes blow to lower the offender and restore
equality
ix. Different Types:
1. Positive Retribution
a. Culpability is sufficient to punish and creates moral imperative
regardless of utilitarian implications of punishment (i.e. must punish)
2. Negative Retribution
a. Punishment is allowed only when morally justified, but punishment is
not required
3. Race and Retributive Justice
a. Levinson, Smith, and Hioki, (2019 ), 500 person survey found:
b. “Americans automatically associate the concepts of payback and
retribution with Black and the concepts of mercy and leniency with
White. Furthermore, the study showed that the level of a person’s
retribution-race implicit bias predicted how much they supported
retribution as a desirable punishment rationale — the stronger the
anti-Black implicit racial bias they held, the more likely they were to
harbor retributivist views of criminal punishment.”
4.
D. Other Approaches:
i. Shaming
1. E.g. U.S. v. Gementera
2. Rule: sentence must be “reasonably related” to legitimate objective

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 3. Majority: punishment reasonably related to rehabilitation
4. Dissent: humiliation was the overriding purpose of the sentence and so
improper
ii. Restorative Justice
1. ocused on social repair
2. Forward-looking (avoiding future harm)
iii. Non-Criminal Regulation (Decriminalization)
1. public health regulation, regulatory (non-criminal) offenses with non-
criminal penalties, “outcasting,” benefit denial, mandatory treatment, etc.

3. TWO REQUIREMENTS
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A. Mens Rea
i. State of Mind
1. US v. Cordoba-Hincapie
a. Over time, the growing emphasis on moral guilt in the criminal law
steered the law away from an exclusive focus on “but-for” causation
as the sole determinant of criminal culpability
2. As a General Concept
a. Refers to the “guilty mind” of an individual and requires that criminal
offenses be committed with some degree of culpability (i.e.
blameworthiness) on behalf of the person charged
b. The defendant must commit the actus reus of the offense while
possessing a morally blameworthy state of mind at common law
3. As a Specific Element of a Criminal Offense
a. The mens rea element of a criminal offense designates what specific
degree of mental culpability a defendant must have possessed in
relation to the social harm of the offense
i. E.g. “Anyone who intentionally injures another is guilty of
battery”

ii. Cases:
1. Regina v. Cunningham
a. Statute: “Whosoever shall unlawfully and maliciously administer to
or cause to be administered to or taken by any other person any
poison or other destructive or noxious thing, so as thereby to
endanger the life of such person, or so as thereby to inflict upon such
person any grievous bodily harm, shall be guilty of felony”

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 b. Elements:
i. Unlawfully and maliciously  MR
ii. Administer, cause to administer, or cause to be taken  AR
iii. By any other person  attendant circumstance
iv. Any poison; destructive; or noxious thing  attendant
circumstance
v. Endangering the life of such person; or inflicting grievous
bodily harm  result
2. Malice = (i) actual intention to cause specific harm; or (ii) recklessness
regarding whether specific harm would occur.
a. D acted with general culpability because he knew he was breaking the
gas meter and stealing the money from it, but trial judge erred in jury
instruction equating “malice” with a general awareness of
wrongdoing (“wicked”)
iii. Common Law
1. Intent and Knowledge
i. Malice (CL)
1. Intentionally or recklessly causes social harm of offense
ii. Intent (CL)
1. Conscious (subjective) object to cause result, or
2. Awareness that result “virtually certain to occur” due to conduct
b. Transferred Intent
1. A person legally “intends” a result (as defined above), when the
only difference is the identify of the victim (social harm is the
same)
c. Knowledge (CL) (typically of attendant circumstance)
1. Subjectively aware of fact’s existence, or
2. Subjectively believes fact exists (and it does), or
3. Suspects that a fact exists and purposefully avoids learning the
truth (willful blindness)
d. Recklessness (CL)
1. Subjective awareness of a “substantial and unjustifiable risk
2. “Substantial” factors: gravity/probability of harm
3. “Unjustifiable” consideration: is risk-taking conduct aimed at
harm minimization?
e. Criminal Negligence (CL)
1. No subjective awareness of a substantial/unjustifiable risk
necessary

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 2. Lack of awareness involves “gross” or “culpable” deviation from
reasonable person std.
f. People v. Conley
i. Statutory Provisions:
1. Intent = “conscious objective is to accomplish result or engage in
conduct”
ii. Knowledge = for results, “consciously aware result is
practically certain to be caused by his conduct”
1. Aggravated battery = battery + intentionally or knowingly cause
great bodily harm or permanent disability
a. Therefore – P must prove beyond RD that D either had
“conscious objective” to cause great harm or disability, or was
“consciously aware” that either harm or disability “practically
certain to be caused by his conduct”
g. Proving Intent
i. Factfinder may infer from circumstances (here, situation, D’s
statements, use of weapon, and force of the blow); or
ii. “ordinary presumption that one intends the natural and
probable consequences of actions”
h. Common Law Definition of Intent
i. “Conscious objective” or “virtually certain to occur from
conduct” + awareness

2. Proving Intent and Transferred Intent

a. Proving Intent
i. Judge cannot instruct the jury that the law “presumes” that a
person intends the ordinary consequences of his voluntary
acts, because of due process presumption of innocence, but
ok for judge to inform the jury that they may but need not
draw inference of intent (Sandstrom v. Montana)
b. Transferred Intent
i. General rule is that intent only required for particular
social harm (and not toward a specific scenario/victim, etc.)
1. E.g. D intends to burn down A’s house, but gets the address
wrong, and burns down B’s house  intent transfers
2. E.g. D intends to shoot and kill A, but misses and the bullet
strikes B, killing B  intent to kill a human being transfers
3. E.g. D fires one shot at A, intending to kill A, but also hits B,
killing both  generally, two intentional homicides (though not
universally)

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 4. Intent may not transfer in situations where the nature of the
harm that occurs is significantly different from the harm
intended, and intent is required mens rea
a. E.g. D intends to shoot A, misses, bullet hits window of a house
 did not “intentionally” cause damage to property (but likely
reckless)
c. Motive and Intent
i. Absent clear language requiring a specific intent for a crime
(e.g. hate crimes), one’s motives (subjective reasons or
personal objectives) underlying the relevant criminal
conduct is immaterial
ii. More often “motive” is an important issue in criminal trials
b/c evidence of one’s motives may be probative evidence in
proving that the defendant committed the offense, or had the
requisite intent (e.g. the intent to cause harm or kill)
d. Specific versus General Intent
i. Most often “specific intent” crimes req. a special mental
element (“intent to sell”, “intent to cause humiliation”, etc.)
ii. General intent crimes are the norm, where D must only have
intent to cause the social harm involved (e.g. battery –
application of force on another person)
e.
iv. MPC
1. Section 2.02
2. (1) … a person is not guilty of an offense unless he acted purposely,
knowingly, recklessly or negligently, as the law may require, with respect
to each material element of the offense.
a. Purposely
i. Conduct/result = “conscious object” to engage in conduct of
that nature or to cause result
ii. Attendant circumstance = aware circumstances exist, or
believes or hopes exist
b. Knowingly
i. Conduct/attendant circumstance = aware conduct of nature
or circumstances exists
ii. Result = aware it “practically certain” conduct will cause
result
c. Recklessly
i. “conscious disregard of a substantial and unjustifiable risk”
elements will result from conduct

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 ii. Risk represents a “gross deviation” from the standard of
conduct of a law-abiding person
d. Negligently
i. Should be aware of a “substantial and unjustifiable risk”
elements will result from conduct
ii. NOT aware subjectively
iii. Failure to perceive risk “gross deviation” from “reasonable
person” standard of care
3. Default – at least recklessness unless only a “violation” (fine is max
penalty)
v. Knowledge of Attendant Circumstances and the Doctrine of Willful Blindness
1. State v. Nations
a. D charged with “knowing” child endangerment
b. Appellate court finds that willful blindness doctrine not part of state
law and D was thus, only reckless as to the age of the victim
2. Wilful Blindness
a. Common Law - one  intentionally puts self in a position to be unaware
of facts/attendant circumstances
b. MPC s. 202(7) - knowledge of a fact is satisfied by finding of
"awareness of a high probability" that it existed
c. SCOTUS – Global Tech Appliances – one “deliberately shields” self
from “clear evidence of critical facts that are strongly suggested by
the circumstances”
d. D believes a high probability fact exists; and
e. D takes “deliberate actions to avoid learning that fact
vi. Statutory Interpretation and Mens Rea
1. State v. Miles
a. Does “knowingly” at outset of statute modify every element of an
offense?
2. General Rule
a. Mens rea term at outset of statute ordinarily applies to each element
b. However
i. If, based on standard contextual process of statutory
interpretation, mens rea element does not apply to all
elements, then legislative will prevails
c. Here
i. Knowing mens rea term applies to conduct of transporting
any illegal drug
ii. Prosecution must prove drug type and amount beyond RD,
but no mens rea for these elements
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 3. Process: (1) legislative purpose/intent; (2) grammatical structure and
common sense, with lenity doctrine as tie-breaker
4. MPC s. 202(4) – single mens rea term presumed to apply to all material
elements unless “contrary purpose plainly appears”
vii. Willfully Mens Rea
1. Cheek v. US
i. Statute 1 elements: “willfully attempt in any manner” to
evade or defeat any [federal] tax or payment thereof
ii. Statute 2 elements: “willfully fail” to make [federal] tax
return
b. Trial Judge
i. Willfulness req. the voluntary and intentional violation of a
known legal duty
ii. Objectively reasonable good-faith misunderstanding of law
negates willfulness
c. SCOTUS
i. Willfulness req. subjective awareness of the duty
ii. Therefore, “honest but unreasonable” mistake of law negates
mens rea
d. Rule – any good faith belief that no legal duty exists negates the mens
rea of willfulness
e. Two Main Interpretations of Willfulness:
i. Intentional commission of a prohibited act
ii. Commission of act in bad-faith, pursuant to wrongful motive,
or in violation of a known legal duty
iii. MPC – Interprets as “knowingly” unless clearly otherwise
(s.202(8))
viii. Jurisdictional Terms versus Material Elements
1. General Rule
a. Clauses in criminal statutes that are jurisdictional in nature are not
considered material elements and therefore carry no mens rea
requirement
i. E.g. Yermian
ii. Whoever, in any matter within the jurisdiction of any
department or agency of the United States, knowingly …
makes any false, fictitious or fraudulent statements … is
guilty
b. MPC Analysis Process
i. 2.02(4) – clear that mens rea not intended to apply to
jurisdictional language

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 ii. 2.02(3) – ordinarily would infer recklessness, but
iii. 2.02(3) – only applies to material elements
iv. 1.13(10) – defines jurisdictional elements as non-material
1. Always Check for Specific Definitions in Any Criminal Code
B. Actus Reus
i. Conduct of an individual
1. AR as the combination of “act, harm, and its connecting link” - Eser
2. The physical component of any crime
3. In general, acts must by “voluntary” (i.e. controlled bodily movements)
4. The Ban on “Status” Crimes
a. Criminal law always requires “conduct” versus “status” therefore
cannot make it a crime to be addicted to drugs, but can be a crime to
possess or sell drugs
5. Common Justifications for Voluntary Act Requirement
a. Impossible to know thoughts or, if known, predict whether will
become action
b. Arguably no harm to society (no wrong)
c. Difficult, if not impossible, to deter thoughts
d. Difficult, if not impossible to deter involuntary movements (e.g.
seizure)
ii. Cases:
1. Martin v. State
a. Statute: “Any person who, while intoxicated or drunk, appears in any
public place where one or more persons are present, … and manifests
a drunken condition by boisterous or indecent conduct, or loud and
profane discourse, shall, on conviction, be fined”
b. Elements of Offense:
i. Intoxicated or drunk
ii. Appears in public place
iii. One or more persons present
iv. Manifests drunken condition by boisterous or indecent
conduct, or loud and profane discourse
c. D arrested at his home by officer and brought outside = NO voluntary
act because being “forcibly carried” to a place does not make presence
there “voluntary” and therefore no actus reus (element #2 negated)
d. General Rule – conduct must involve at least one voluntary act
2. State v. Utter
a. Question of whether D was acting voluntarily (i.e. conscious) is a
question of fact

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 i. Defense of no conscious act (“conditioned response”) due to
military training and likely PTSD, presented to jury if
“substantial evidence in the record to support it”
ii. Here, insufficient evidence to put to jury
b. Automatism Defense
i. Always consider whether alleged unconscious state was
itself, voluntarily induced or not (esp. via drugs or alcohol),
if so, also consider intoxication-based partial defenses (later
in course)
3. People v. Nelson
a. D had Tourette’s syndrome and expert testified this included
uncontrollable urges to carry out certain actions
b. D called woman and harassed her on the phone, but claimed
involuntary b/c he could not control even complex motor functions
c. Conviction overturned based on “uncontroverted” expert testimony
4.
iii. Omissions
1. People v. Beardsley
a. D drinking with V over extended period of time, V asks 3 rd party to get
morphine, which she takes some of in front of D (who prevents her
from taking all)
b. D has two 3 rd parties bring V to other room and instructs room
resident to let her out when she wakes up, but she dies after becoming
unresponsive
c. Court distinguishes between moral and legal duties of care and finds
D had no legal duty of care:
d. “The law recognizes that under some circumstances the omission of a
duty owed by one individual to another, where such omission results
in the death of the one to whom the duty is owing, will make the other
chargeable with manslaughter. This rule of law is always based upon
the proposition that the duty neglected must be a legal duty, and
not a mere moral obligation.”
i. No General Duty to Assist Others or Report Crimes, Requires
a Legal Duty
2. General Rule – No Omission Liability Absent a Legal Duty to Act
a. Legal Duties to Act (Jones v. U.S.):
i. Statutory duty (good Samaritan or other)
ii. Status relationship (legal, e.g. spouse or parent)
iii. Contractual duty of care (e.g. caregiver)

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 iv. Voluntarily assumed the care of another and so secluded the
helpless person as to prevent others from rendering aid;
v. Also #5: creation of the risk (e.g. hitting pedestrian)
1. Note – If a duty to act exists, a person must only exercise “proper
diligence” when acting – reasonable and proper efforts to rescue
that can be carried out safely
3. Barber v. Superior Court
a. V revived after suffering post-surgical cardo-respiratory arrest, but
entered into presumptively permanent vegetative state
b. Prognosis for recovery “extremely poor” and V removed from
ventilator and later had feeding/hydration systems removed and died
c. Doctors charged with murder: CA statute murder = unlawful killing,
and killing = cause death, while death = “irreversible cessation of all
brain function” and euthanasia illegal
i. Here, V had some brain function, but no higher level
functioning
d. Court held that “cessation of ‘heroic’ life support measures is not an
affirmative act” and therefore no AR by doctors, who simply stopped
rendering an extreme form of ongoing aid, allowing V to die
i. No legal duty to act by medical professionals, despite status
relationship, “once it has become futile in the opinion of
qualified medical personnel”
4. Moral v. Legal Duties
a. Pope v. State
i. Assumption of care versus passive presence
b. David Cash
i. No statutory liability for witnessing assault leading to
murder in public bathroom
c. Bystander Effect
i. The more witnesses, the less likely anyone will take action
(e.g. Kitty Genovese)
d. Good Samaritan Laws
i. Vary by jurisdiction (E.g. Hawaii HRS § 663–1.6 ) requires
any person at the scene of a crime who knows that a victim of
the crime is suffering from serious physical harm to obtain or
attempt to obtain aid from law enforcement or medical
personnel, if the person can do so without danger or peril to
any person

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 1. Applies to the perpetrator of the crime as well as other persons
at the scene of the crime (consider how this might apply to facts
of Pope)
ii. Also provides tort protection for good-faith rescue attempts
1. Note – Creative Charging – e.g. – failure to report, “offering
indignity to a dead body”
5. Social Harm Principle
a. Basic Concept - Social Harm
i. Commission of crimes harms society (not just individual
victims)
1. Example definition: “negation, endangering, or destruction of an
individual, group, or state interest, which [is] deemed socially
valuable.” - Eser
b. Result Crimes/Elements
i. Requires specific outcome (e.g. distinction between
attempted murder and homicide offenses) – death is required
c. Conduct Crimes/Elements
i. Based wholly on prohibited conduct, regardless of outcome
(though may involve other offenses, or be aggravating
factors)
ii. E.g. intoxicated driving or reckless driving
1. Here, the enhanced risk is arguably the social harm
d. Attendant Circumstance Elements
i. E.g. Doing x, while z (e.g. driving – actus reus, while
intoxicated – attendant
iv. Common Law

v. MPC
1. Voluntary Act
a. Sect. 1.13 – General Definitions (p. 1004-1005)
i. (2) “act” or “action” means a bodily movement whether
voluntary or involuntary;
ii. (3) “voluntary” has the meaning specified in Section 2.01;
b. Sect. 2.01 – Requirement of Voluntary Act (p. 1006)
i. (1) A person is not guilty of an offense unless his liability is
based on conduct which includes a voluntary act or the
omission to perform an act of which he is physically capable.
ii. (2) The following are not voluntary acts within the meaning
of this Section:
1. a reflex or convulsion;
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 2. a bodily movement during unconsciousness or sleep;
3. conduct during hypnosis or resulting from hypnotic suggestion;
4. a bodily movement that otherwise is not a product of the effort
or determination of the actor, either conscious or habitual
vi.

4. PORPORTIONALITY AND STATUTORY LAW

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A. Death Penalty
i. Generally
1. Challenges alleging the death penalty always violates the 8 th Amendment
have been unsuccessful
ii. Rape and the Death Penalty
1. Coker v. Georgia
2. Majority:
a. “a sentence of death is grossly disproportionate and excessive
punishment for the crime of rape and is therefore forbidden”
3. Test: punishment is “excessive” if it: (1) “makes no measurable
contribution to acceptable goals of punishment”; or (2) “is grossly out of
proportion to the severity of the crime”
4. Dissent:
5. States should be able to decide whether to execute for rape, as
legislatures are permitted to “make the penalty more severe than the
criminal act it punishes in the hope it would deter wrongdoing”
iii. Current Rule – Death penalty not permitted for rape where death of victim was
not intended and did not occur (Kennedy v. Louisiana)

B. Recidivism Penalties: “Three Strikes” Laws:

i. Ewing v. California
1. D sentenced to 25 years to life for theft of golf clubs worth $400,
predicated on lengthy record of prior convictions (batter, theft, burglary,
possession of drug paraphernalia, and unlawful possession of firearm)
2. Stated goal of Cal. 3 strikes law: “protecting the public safety by
providing lengthy prison terms for habitual offenders”
ii. Applicable Case Law:
1. Rummel – 3 time felon sentenced to life with possibility of parole
2. Solem – 7 time felon sentenced to life without possibility of parole

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 3. Harmelin – “only extreme sentences” violate 8 th Amend as “grossly
disproportionate”
4. Majority:
a. Enough that Cal. has a “reasonable basis for believing the
dramatically enhanced sentences for habitual felons advance the
goals of the criminal justice system in any substantial way”
b. 25 to life sentence permissible
5. Dissent:
a. The assessment should be based on the real length of time before
possibility of release (Rummel – 10-12 years, Solem – never)
b. Ewing not eligible to seek release for 25 years and this should be
considered grossly disproportionate to offense

C. Commonwealth v. Mochan
i. D charged with common law offenses for making lewd, explicit phone calls to
woman repeatedly
ii. Offenses of “outraging public decency” held to be sufficient to put D on notice of
potential prosecution because of the nature of the comments made on the phone
iii. Majority – Common law offense encompasses D’s actions, so conviction proper
iv. Dissent – Use of CL offenses to prosecute new actions violates separation of
powers, would limit prosecution of CL offenses to those with clear precedents in
order to ensure fair notice
D. MPC
i. The MPC policy framework: “utilitarianism within limits of proportionality”
(Reitz and Klingele)
ii. MPC – S. 7.09(5)(b) – appellate courts should have a statutory right to review
the proportionality of sentences “using its own judgment”
iii. De Novo review of alleged unlawful sentences or sentencing practices, with
deference to general length and type of sentences unless “clearly unreasonable
and an abuse of discretion”
1. “proportionality constraint” within which utilitarian goals
(rehabilitation, general deterrence, incapacitation of dangerous
offenders, restitution to victims, preservation of families, and
reintegration of offenders into society)
iv. Sentences to be “no more severe than necessary” to achieve goals
v. Should avoid sanctions increasing likelihood of recidivism
E. Statutory Interpretation
i. Keeler v. Superior Court

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 1. Question of statutory interpretation of definition of “human being” and
when this may apply to a fetus
a. Majority - b/c definition of human being limited to “born alive” when
statute passed, replacing the common law, it would violate due
process to enlarge statute”
b. Dissent – term should be interpreted according to present conditions,
therefore should encompass fully viable fetus
ii. In re Banks
1. Question of constitutionality of “secretly peeping into any room” vague
and/or overbroad, violating due process
a. Criminal statutes to be strictly construed – plain meaning + legislative
intent.
b. Vagueness test – “A criminal statute must be sufficiently definite to
give notice of the required conduct to one who would avoid its
penalties, and to guide the judge in its application and the lawyer in
defending one charged with its violation.” (Boyce Motor Lines v. US)
c. Here, insertion of word “secretly” both made statute sufficiently clear
and avoided overbreadth challenge b/c not applicable to innocent
conduct

5. STRICT LIABILITY AND MISTAKE

A. Strict Liability Basic Definition

1. Voluntary commission of actus reus w/out proof of mens rea sufficient to
convict
ii. General Rule
1. Omission of any mens rea language does not necessarily mean SL offense
2. Presumption against SL offenses, unless very minor and/or public
welfare
iii. Factors to Consider Determining Whether SL
1. Plain language and clear intent of statute
2. Whether likely considered a public welfare offense
3. Severity of offense and punishment (violation, misdemeanor, felony +
potential sentences)
4. Determining WHAT Mens Rea to Insert into Silent Statute
a. Elonis v US – minimum mens rea necessary to separate wrongful, from
“otherwise innocent conduct”

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 B. Strict Liability (SL) Offenses
i. Morissette v. US
1. D takes spent bomb casings he finds on gov’t property and sells them for
$84
2. Convicted of conversion of gov’t property:
a. Steal, purloin, or knowingly converts, or sells, conveys, or disposes of
without authority;
b. “Thing of value” of the US
3. D appeals, claiming insufficient mens rea (no intent to steal b/c believed
abandoned property)
4. SCOTUS Finds:
a. Strict liability offenses are generally constitutionally permissible
i. Presumption that SL limited to violations and public welfare
offenses
ii. Where terms with specialized legal meaning in statute,
legislature presumed to intend this (not colloquial) meaning
b. Here, relevant provision part of consolidation of offenses, none of
which were SL, CL def. of stealing req. SI to permanently deprive, and
“knowledge” in statute
i. Req. knowledge property of another (not abandoned)
5. Note – SL offenses, even those carrying serious punishments are NOT
constitutionally forbidden, but rather a strong presumption exists that
some mens rea is required for all serious offenses, especially those with CL
roots

C. Public welfare offenses

i. General Characteristics of Public Welfare Offenses
1. Purpose to regulate “deleterious [i.e. dangerous] devices/products or
“obnoxious waste materials” (esp. hazardous)
2. Justification is to heighten the duties of care for actors w/in risky trades
(those that affect public health, safety, and welfare)
3. Are often (though not always) SL in nature
ii. Determining Whether Offense is Public Welfare (and therefore may be SL)
1. No bright-line test, but three core factors to consider:
a. Nature of the conduct – malum prohibitum (not malum in se), i.e. not
inherently harmful, but carries risk of harm
b. Punishment – the shorter the punishment, the more likely both a
public welfare offense and SL (fine or short jail sentence typically)

17
 c. Degree of Social Danger – violation of the offense creates a large risk
of harm (e.g. transporting toxic waste)
iii. Staples v. US
1. D convicted of possession of unregistered “machinegun” (AR-15 modified
with M-16 parts to make it capable of fully automatic firing)
2. D appeals, arguing not SL, requires knowledge of capability of fully
automatic firing
3. SCOTUS Majority
a. Because: (1) mens rea question not re: whether registered, but re:
classification of the weapon (and therefore whether registration was
req’d at all, (2) not public welfare offense; and (3) severity (felony, up
to 10 yrs), offense not to be interpreted as SL
4. Dissent
a. Guns in general are the kind of inherently dangerous goods
traditionally regulated via public welfare offenses
b. Especially here, where AR-15 is a military-style weapon that can
easily be turned into a fully automatic machinegun
c. Relevant offense is not a codification of a CL crime, but a new crime
altogether and so no presumption of preexisting mens rea
D. Strict Liability, Mistake and Statutory Rape
i. Garnett v. State
1. D, 20 with mental disability, has otherwise consensual sex with V, 13, who
had told D she was 16
2. Statute – 2 nd Degree Rape = vaginal intercourse + … w person under 14
(where D is 4+ years older than V)
3. Majority
a. Statute language and drafting history clear that provision is SL,
despite gravity of offense, therefore affirms conviction
4. Dissent
a. Awareness re: age of V in statutory rape based on voluntary
assumption of the risk partner underage and if D can show unable to
appreciate the risk b/c of disability
5. Whether Statutory Rape Provisions “Pure” SL Regime Varies by
Jurisdiction
a. P. 205, note 4 – Online chatting and charge of soliciting sex from
minor
b. Moser – MN appellate court found imposition of felony liability for
solicitation of minor without face to face contact violates due process
of reasonable mistake of fact defense not allowed
E. Mistake of Fact

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 i. People v. Navarro
1. Felonious Stealing: CL larceny + threshold value
2. CL Larceny: (1) trespassory taking and carrying away (2) personal
property of another; (3) with intent to steal (i.e. permanently deprive
owner)
a. D convicted of felonious stealing of wooden beams
3. Mistake Argument: good-faith belief of
a. Abandonment, or
b. Consent of owner
4. Trial Judge – good-faith mistake defense must be objectively reasonable
5. Appellate Court – General Rule
a. A subjective mistake of fact or law is a defense when it negates a
required mental element of the crime
6. General Intent Crimes - mistake of fact must be reasonable (i.e. D not
culpable)
7. Specific Intent Crimes – mistake of fact must only be good-faith (i.e.
actually believed)
a. P. 208, note 4 – Walmart Robbery “for the CIA”
i. If factfinder believes B, then no conviction b/c robbery SI
offense and B’s unreasonable belief negates the specific
intent to “permanently deprive”
F. Mistake or Ignorance of Law
i. People v. Marrero
1. D mistaken that he could carry a loaded, unregistered gun as a peace
officer b/c worked at federal prison in different state
2. Convicted at trial – trial judge refused to issue mistake of law jury
instruction
3. General Rule
a. Ignorance of the law is no excuse
4. Rationale
a. Encourage people to know law
b. Avoid “loophole” searching
5. Exceptions
a. Negates SI (e.g. Weiss) – “authority of law” mistake
b. Reasonable Reliance aka Entrapment by Estoppel
c. Lambert – lack of fair notice violates due process

G. Mistake: MPC Approach

i. § 204
19
 1. Ignorance or mistake as to fact or law a defense if:
a. negatives the required mens rea
b. law provides that the state of mind established by such ignorance or
mistake constitutes a defense
2. If (1) applies, but D would be guilty of lesser offense, D to be punished as
if guilty of lesser offense
3. (3) Mistake of Law Defense only when
a. offense not defined in way reasonably available to D prior to conduct
b. reasonable reliance + official statement of law + in: statute, judicial
decision, administrative order or grant, or official interpretation
by public officer or body charged by law with responsibility for
interpretation, administration or enforcement of the law defining
the offense + afterward determined invalid or erroneous
4. Burden for (3) on D with preponderance standard
H. Defenses or Not
i. Reliance on instructor/gun shop owner
1. NO defense
ii. Reliance on lawyer
1. NO defense (not an official)
iii. ATF Opinion
1. NO defense (because federal official advising on federal law)
iv. Minister relying on local prosecutor
1. NO defense (no indication it’s an “official” statement by prosecutor)
v. Poll worker burns ballots, relying on election judge
1. NO defense (either not reasonable reliance, or not “official” statement
vi. P. 220 (bottom)
1. Whitney Houston medley
a. Lambert likely no defense b/c positive act prohibited
2. Passenger in DC and gun in glovebox
a. Lambert found to be defense: “to convict a person of a crime based on
the failure to take a legally required action … if he had no reason to
believe he had a legal duty to act, or even that his failure to act was
blameworthy.”
3. Compiling records of Viagra users
a. Lambert unlikely to be a defense b/c pharmacy heavily regulated,
often requiring acts and/or criminalizing omissions
4. Possession of pseudoephedrine
a. Statute found unconstitutional as applied in NC b/c no notice and
activity otherwise completely lawful and innocuous

20
6. CAUSATION
i. Assessing Causation
1. 1. Factual cause? (but-for)
2. 2. Proximate cause?
3. 3. Any potential “intervening act”?
B. Causation: “Actual”/“Factual”/“Cause-in-Fact”
i. Velazquez v. State (I)
1. To determine whether D’s conduct is a factual cause (“cause-in-fact”) of
an outcome, factfinder must ask: would the prohibited result not have
occurred, “but-for” (i.e. without) D’s conduct?
2. A single outcome can have a virtually unlimited number of factual causes
ii. Substantial Factor Test
1. May be used in situations where the uncoordinated actions of 2 or more
actors are independently sufficient to bring about a result (e.g. two
virtually simultaneous mortal wounds inflicted)
iii. Oxendine v. State – Factual Causation and Acceleration
1. D’s girlfriend causes injury to child at night, D beats child in the morning,
child dies later that day
2. State experts (Drs #1/2) unable to offer any opinion re: whether D’s
beating of V caused V to die earlier than would of otherwise
3. State’s sole theory of causation was acceleration
4. Test: “but-for” actions of D, would result have occurred sooner?
a. Here, based on expert testimony, no evidence D’s beating accelerated
V’s death and so the beating not a factual cause of V’s death
i. Note – be aware of potential lesser-included-offenses
C. Proximate (aka “Legal”) Causation
i. People v. Rideout
1. D convicted at trial of impaired operation of MV causing death
2. D (impaired), pulled out in front of V, causing an accident
3. No injuries, but V’s car’s lights out and D’s SUV on side of road and V’s
care in the middle of the road
4. V exited car, walked to D’s car, spoke to him, and returned to stand by V’s
car
5. Oncoming car hits and kills V
6. Appeals court finds insufficient evidence of proximate causation
a. Note – reversed by state supreme court
ii. Proximate Causation
1. No majority test – typically determined by factfinder

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 2. E.g. Michigan Supreme Court – could reasonable jury find actions of V
were foreseeable based on objective std of reasonableness

D. Intervening Causes
i. Rideout Potential Intervening Causes
1. V returning to the car after safely leaving the roadway
2. Gross negligence of driver of 3 rd car
ii. P. 240 Note 2
1. D1/2 likely to be found to be PC of V’s death b/c subsequent events,
including V and B’s behaviors (even if B was negligent) are foreseeable
iii. P. 241 Note 5 – Omissions
1. Generally omissions are not treated as intervening superseding causes
2. Likely A’s conduct remains PC of V’s death, regardless of A’s reason for
knocking out and leaving V on road (but defenses might apply
E. MPC Approach S. 2.03
i. But-For Test for Factual Causation
1. (1) Conduct is the cause of a result when:
a. (a) but for test, and
b. (b) any additional legal requirements satisfied
ii. Uses Mens Rea to Determine Proximate Causation
1. Purposely or knowingly and result offense: result must be “within the
purpose or contemplation” of D, unless
a. different person or property injured (transferred intent), or
b. same kind of injury or harm and not “too remote or accidental” to
affect D’s liability or gravity of offense
2. Recklessly or negligently: harm/injury must be “within the risk” unless:
a. only difference is person or property injured, (transferred mens rea)
or
b. actual result involves same kind of injury or harm as probable result
and not too remote or accidental to affect D’s liability or gravity of
offense
F. Causation and the Scope of Risk Producing Conduct
i. State v. Velazquez (II)
1. D and V engage in consensual drag rage, after turning around V drives
through guardrail and dies
2. D charged with vehicular homicide
3. Not guilty b/c race was over and therefore not a proximate cause of V’s
death

22
 4. Key – Look at the Sequence of Events Carefully
a. P. 246 Note 4 Problems
b. IF physician’s conduct is considered grossly negligent, it may
supersede (here, court found it did)
c. R found to be PC of V’s death and convicted
d. C convicted of involuntary manslaughter
e. C acquitted (not negligent based on MPC approach and death from
cardiac arrest too remote from hazards of fight)
ii.
G. Concurrence of Elements and Causation
i. State v. Rose
1. V (pedestrian) hit by D (driver) who didn’t stop
2. V found wedged under D’s car, parked 600 ft away from accident
3. charged with leaving scene of accident, “death resulting” and negligent
manslaughter
4. No evidence of negligence up to moment D hit V
5. B/c evidence strongly suggests V died on impact, then not negligent
manslaughter
6. However, guilty of leaving scene of accident, death resulting
a. Always carefully assess the order in which events occur, D must be
acting with the requisite MR while committing the AR (including
causing req. results)
i. Fagan (p. 250, n. 1)
1. Not guilty of battery until D is made aware of harmful conduct
and remains on V’s foot
H. Assessing Proximate Causation
i. Factors that Tend to Break the Causal Chain (i.e. prevent proximate causation):
1. The intervening cause was . . .
a. Unforeseeable
b. More than a de minimus contribution to the result (i.e., a de minimus
contribution tends to preserve the causal chain)
c. An act (not an omission) (i.e., an omission tends to preserve the
causal chain)
d. “A free, deliberate and informed human intervention”
2. Defendant did not intend the result (i.e., the defendant’s intent to cause
the result tends to preserve the causal chain)
3. Victim reached “apparent safety”

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7. HOMICIDE
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A. Common Law
i. Common Law Homicide Offenses
1. At common law murder generally defined as unlawful killing of a human
being with malice aforethought. Over time, “malice aforethought” became
equated with 4 mens rei:
a. The intent to kill
b. The intent to cause “grievous harm”
c. Evincing a depraved or abandoned and malignant heart (extreme
recklessness)
d. Felony murder – causation of death during the commission of a felony
(note – very few felonies)
2. Manslaughter, meanwhile, was generally defined as culpable killing
without malice aforethought, and was divided into two categories:
a. Voluntary manslaughter - otherwise intentional killings committed in
the heat of passion following a legally recognized form of provocation
b. Involuntary manslaughter – unintentional culpable killings (i.e. the
defendant caused death while possessing a generally culpable state of
mind, but not a state of mind qualifying as “malice aforethought” or
killing during the commission of an unlawful, yet non-felonious act
(“misdemeanor-manslaughter)
i. Note – these formulations of murder/manslaughter continue
to have salience in many US jurisdictions
ii. Homicide Statutes.
1. Generally
a. Largely a matter of degree to which each state follows common law,
or modifies common law rules via statute/follows the MPC (e.g.
California and Michigan tend more toward common law, while New
York and Hawai’i tend more toward the MPC approach)
b. Murder and/or manslaughter often divided into degrees
c. Note that the one universal element in all homicide offenses is the
causation of the death of a human being. *always consider
causation*
2.
iii. Defining Life and Death for Homicide Offenses
1. People v. Eulo

24
 a. Ds each shot respective V in head. Vs were taken to hospital and
placed on life support until drs determined “irreversible cessation of
brain function”
b. Convicted of manslaughter
c. Ds appealed, arguing that under NY law, they did not kill (i.e. cause
death) of Vs, b/c death defined as “irreversible cessation of breathing
and heartbeat”
d. Statutory interpretation problem: “death” not defined by statute at
the time, but when homicide statutes were drafted death generally
defined as cessation of respiration/heartbeat
e. Ruling: “death” legally = irreversible cessation of (1)
breathing/heartbeat, or (2) entire brain’s functioning
i. Here, unless doctors intentionally or grossly negligently
declared Vs “dead” when they were, in fact, not, chain of
causation remains intact (think back to intervening
superseding causes)
1. Note – always be alert to quirks of causation when it comes to
homicide offenses (e.g. one cannot “kill” a person who is already
dead, or where V dies much later in time)
2. Note – always check to see whether “life” “death” or “human
being” are defined by statute (e.g. criminal law may require “live
birth” for fetus to become human being
iv. Degrees of Murder at Common Law: Premeditation and Deliberation
1. At common law (and still in many states), the core distinction b/w 1 st and
2nd degree murder is “premeditation/deliberation” before commission
2. 1st degree murder often = willful + P/D killing, 2 nd degree = all other forms
of murder, including intentional w/out P/D
3. This may be especially important in states that retain the death penalty,
as 1st degree murder is likely to be a capital offense, while 2 nd is unlikely
4. In non-death penalty states, 1 st degree may trigger a “true” life sentence,
while 2 nd less likely
5. State v. Guthrie
a. D killed fellow dishwasher after V teased him gently and flipped a
dishtowel on D’s nose by stabbing V in neck
b. D has psychiatric conditions and claims he had a panic attack
immediately before killing
c. TJ instructed jury that a D may form requisite willful, deliberate, and
premeditated intent to kill at any time, even at the moment of killing
d. Convicted by jury of 1 st degree murder at trial (“unlawful, willful,
malicious, deliberate and premeditated” killing)

25
 e. Appellate court finds that, while jury should be given significant
latitude in assessing whether D acted with
premeditation/deliberation, that jury should be instructed it must
find: D committed intentional killing “after period of time for prior
consideration … of a sufficient duration for D to be fully conscious of
what he intended”
i. Remanded for new trial
ii. Therefore, when P/D is required, there is no precise amount
of time necessary for D to contemplate choice to kill, but jury
must find a sufficient period of time for D to reflect on and
appreciate decision to kill (i.e. not a sudden, spontaneous
decision to intentionally kill)
1. Note – in context of common law 1st degree murder “willful” =
subjectively intended
v. Differentiating Deliberation/Premeditation from Reason for Choice to Kill
1. Midgett v. State
a. D a regular child abuser, hitting V, who was 8 when killed
b. D killed V by hitting him in the abdomen
c. D convicted of 1 st degree P/D murder, appeals arguing insufficient
evidence to established P/D killing
d. Appellate court finds that evidence only supports D either intended
only to injure V, or formed intent to kill w/out P/D (“developed in a
drunken, heated, rage while disciplining the child.”)
i. Therefore, no evidence of P or D, convicted reduced to 2 nd
degree
2. State v. Forrest
a. D visited ailing father who was “near death”, whom D had taken care
of for years, in hospital
b. D upset, shoots father in head, killing him, and surrenders (apparent
mercy killing, from perspective of D)
c. Convicted of P/D 1 st degree murder, D appeals arguing insufficient
evidence of P/D
d. Appellate court notes that P/D almost always proven by
circumstantial evidence, factors to consider:
e. Whether any provocation (recognized or not)
f. Conduct and statements of D before and after killing
g. Threats and statements of D during causation of death
h. Nature of prior relationship b/w D and V (“Ill-will” or not)
i. Whether D continued to deliver lethal blows after V dead or helpless
j. Brutality of method of killing

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 vi. Common Law “Voluntary” Manslaughter: Adequate Provocation
1. Girouard v. State
a. Husband (D) and wife (V) in contentious marriage, get into argument,
V berates D, told D that she had sought to get him in legal trouble
(court-martial), D gets knife, V continues to berate D and he stabs her
19 times, then slit own wrists and called police
b. D argued provocation, but convicted of 2 nd degree murder
c. At common law only specific types of provocation were recognized as
creating potential for murder to be reduce to voluntary
manslaughter: extreme assault or battery; mutual combat; illegal
arrest; injury or serious abuse of close relative; or sudden discovery of
spousal adultery
d. Common law: Voluntary Manslaughter – “intentional homicide, done
in a sudden heat of passion, caused be adequate provocation, before
there has been a reasonable opportunity for the passion to cool”
i. Provocation is a partial defense, with the burden on the D to
establish:
2. Adequate provocation
a. Killing occurred “in heat of passion” due to this provocation
b. Before a reasonable cooling off period
c. Causal connection between provocation-passion-fatal act
3. “Words Alone Rule” – words alone, unless accompanied by conduct
indicating a present intention and ability to cause D bodily harm,
categorically not adequate provocation to reduce murder to voluntary
manslaughter
a. Note – “words alone” rule (categorical ban) remains law in some
states, and trend is toward the factfinder, rather than the trial judge
to assess questions of whether provocation indeed existed, whether
adequate, and whether sufficient “cooling off” time between
provocation/killing
vii. The “Reasonable Person” Standard and Assessing Provocation
1. A recurring and complicated issue is that of whether factfinders should
ever take into account the particular experiences and characteristics of
an individual defendant claiming provocation, and if so what should and
should not be considered. This is especially important in jurisdictions
where the “words alone” rule has been abolished. The question of whether
and when to contextualize the situation of individuals when assessing the
reasonableness/culpability of their actions is a recurring conundrum
throughout criminal law.
2. Generally

27
 a. The general temperament, capacity for self-control, and the like not
considered
b. However, depending on the jurisdiction, certain life
experiences/characteristics may be taken into account (e.g. race,
prior trauma) that could affect reasonableness of reaction
c. Many jurisdictions statutorily exclude certain factors from being
considered within context of claims of provocation (e.g. sexual
orientation or gender identity)
3. Problems
4. Bedder – erectile dysfunction – kills woman who mocks him
5. Escamilla – prior sexual assault – kills man who gropes him
6. Carr – rejection by women and his mother, sexual abuse in prison,
inability to find work (“psychosexual history”) – kills lesbian women he
sees having sex
7. Gibson – tribal membership status and associated rules – kills member
who violates rules
a. Humaid – religious/cultural beliefs and honor killing – kills spouse he
believes cheating
viii. Depraved/Abandoned/Malignant Heart Common Law Murder
a. People v. Knoller
i. D, a lawyer, arranged to adopt two 100+ lb. Presa Canario
dogs, Bane and Hera, keeping them in her apartment
ii. Dogs maul and kill V (Whipple)
iii. CA Homicide Statute, §. 187(a): “Murder is the unlawful
killing of a human being … with malice aforethought”
b. § 188: Malice may be express or implied: (1) express when D manifests
a deliberate intention to unlawfully cause death; (2) implied when no
considerable provocation appears, or circumstances attending killing
show an abandoned and malignant heart.
i. D charged with implied malice “abandoned and malignant
heart” murder
ii. D claims insufficient mens rea unforeseeable “bizarre event”
iii. Court approves Phillips test for implied malice:
1. killing proximately caused by D’s conduct
2. Natural consequences of such conduct dangerous to life
3. D deliberately engages in such conduct, acting with a conscious
disregard for life

c. Negligent Common Law Involuntary Manslaughter

28
 B. MPC
i. MPC Homicide Offenses
1. Criminal Homicide (s. 210.1)
a. Purposely, knowingly, recklessly, or negligently causes death of
another human being
2. Murder (s. 210.2)
a. Purposely or knowingly, or
b. Recklessly under circumstances manifesting extreme indifference to
life … (presumed when death caused during or in flight from
enumerated felonies)
3. Manslaughter (s. 210.3)
a. Simple recklessness, or
b. Killing committed under influence of EED for which reasonable
explanation or excuse (assessed from D’s situation/circumstances as D
believes them)
4. Negligent Homicide (s. 210.4)
a. Committed with negligence (criminal negligence under MPC s. 2.02(2)
(d) – should be aware of substantial/unjustifiable risk with failure to
be aware amounting to “gross deviation” from standard of care of
reasonable person
5. Causing or Aiding Suicide (s. 210.5)
a. Purposely causes suicide by force, duress, or deception
b. Aiding or Soliciting (separate offense) – purposely aids or solicits
another to commit suicide
ii. The MPC Alternative to Provocation: Extreme Emotional Distress (EED)
Manslaughter
1. People v. Casassa
a. D killed ex-girlfriend, who “devastated” D by dumping him
b. D began eavesdropping on V, broke into her apartment and laid on
her bed, killed V with knife he carried after she rejected his efforts at
reconciliation
c. TJ (bench trial) assessed D’s EED claim under a reasonable reaction
standard: whether based on totality of circumstances factfinder could
understand how a reasonable person might have reason overcome
d. D contends that under NY law (based on MPC) the test should be
interpreted as wholly subjective (i.e. sole assessment whether D was,
in fact, overcome by distress when acting

29
 e. NY Law: EED an affirmative defense to 2 nd degree murder where “D
acted under the influence of EED for which there was a reasonable
explanation or excuse”
f. Appellate court finds: (1) EED broader than CL provocation doctrine
(e.g. no immediacy req.); but (2) hybrid subjective/objective test
g. EED defense requires:
h. (1) D in fact acted under EED (subjective); (2) whether explanation
reasonable (hybrid)
i. #2 – From “subjective, internal situation” D in in context of
“external circumstances as D believed them to be
(subjective) regardless of accuracy, was existence of EED
reasonable?
ii. Leaves significant room for factfinder to evaluate
1. Here, TJ within discretion in determining that D’s excuse too
peculiar to D to mitigate
iii. Court notes that no set of facts require by law a finding of
EED mitigation, but rather, goes to factfinder to assess
2. Assessing EMED
a. How is EED Broader than Provocation?
i. No requirement of provocatory conduct, but rather simply
that D killed while experiencing emotional or mental distress
ii. No “cooling off” period limitation
1. E.g. Forrest (mercy killing): D would likely have had right to have
jury consider EED defense, while he has no grounds to even have
a provocation defense considered  Analysis: no distinction
between degrees of murder under MPC, thus P/D irrelevant; D
committed killing purposely or knowingly (therefore a murder);
MPC allows EED to reduce murder to manslaughter; evidence in
cases would support argument that D was in a (potentially
continuing) state of EED due to watching his father’s slow and
painful decline; no cooling off period temporal limitation;
committed killing while in this state.
a. Note 1, pp. 304-305 – McKenzie
iii. No “words alone” rule in MPC
1. Process for EEC: (1) Is there significant evidence that D suffered
from an EMED at the time of the killing? If so goes to factfinder to
assess (2) reasonableness
a. Here, goes to factfinder, but D loses, because not reasonable
2. Court: EED “refers more broadly to any reasonable explicable
emotional disturbance so extreme as to result in and become
manifest as a profound loss of self-control.”
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 b. MPC Commentary
i. Mistake – factfinder must evaluate D’s conduct under
circumstances as D believed them to be
ii. “Situation” – allows factfinder leeway in contextualizing D’s
circumstances (to allow for accounting for things such as e.g.
D’s personal handicaps, but not things like idiosyncratic
moral values
1. Thus, factfinder determines what “special aspects” of a D’s
situation that should be deemed material to EED claim, versus
ignored.
iii. E.g. Note 3 and 4, p. 306
1. #3 - Factfinder would assess b/c evidence exists D subjectively
acted under EED based on belief child’s life in danger
2. Keys would be (1) whether factfinder believes that D actually
believed the bizarre “invisible germ” belief claim; and (2) if D
did, whether reasonable for D to lose control
3. #4 – Easily goes to jury so long as D experienced EED when
killing (subjectively)

8. FELONY MURDER
To get started right away, just tap any placeholder text (such as this) and start typing.
A. Common Law
i. Background
1. Common Law
a. Unclear roots of the rule, but has been abandoned in the UK, where it
originated
b. Operates to create strict liability murder for any killings that occur
during the commission of a felony
c. Operated at common law as one of the way to conclusively establish
malice (along with: intentional killings, intent to cause “grievous”
harm, and malignant/depraved heart)
d. Has been abolished everywhere in common law jurisdictions except
USA
e. Abolished in Hawai’i (see §707-701 )
f. Often creates possibility of death sentence (51.4% of execution-
eligible homicides from 1976-2016 ), “true” or effective life sentences
g. Prosecutors have broad discretion in charging FM, resulting in
predictable racial and other biases (for an overview of statistical
studies see here, for a recent study of the disparate use of the FM in
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 Chicago in the late 90s, see here and uploaded to Laulima) – Note the
issue is not just convictions, but also charge “stacking” to leverage
pleas
ii. Application
1. People v. Fuller
i. Ds observed by police rolling spare tires toward his car in a
closed car lot
ii. Officer turns around and Ds speed away, high speed chase
ensues, Ds’ car runs red light, hits 3 rd car, killing passenger
iii. Evidence establishes that Ds “forcibly entered” locked cars
on lot to steal their spare tires
iv. TJ strikes murder count, murder court reinstated on appeal
pursuant to FM statute
b. Reasoning:
i. FM statute creates strict liability for killings and burglary is
a predicate felony under CA law
ii. B/c Ds broke into locked vehicles to steal tires, they
committed burglary under CA law (Burglary: (1) entering (2)
… vehicle … when doors locked … (3) with the intent to
commit larceny or any felony)
c. Therefore, FM rule applies, even if it is not a just result, and Ds face 1 st
degree murder charges
B. Attempted Justifications: FM
i. Utilitarian
1. Deterrence – theory that will deter commission of felonies, or at least
encourage precaution in their commission (not empirically supported)
2. Clarity and ease of application – saves prosecutorial/judicial resources
(but violates basic tenets of utilitarianism that view punishment as a
form of social disutility, requiring its minimization
3. Comforting for loved ones of victims who may be upset if Ds are convicted
“only” of the underlying felony and/or manslaughter
4. Resulting death as an “aggravating factor” (but this does not explain
bootstrapping to an independent murder conviction)
5. Prevents “erroneous acquittals” – no evidence this is a problem, though
we know for certain that false convictions occur with regularity
ii. Retributive
1. Culpability – culpability either transfers constructively from the felony to
the killing, or guilty of murder via general common law requirement of
culpability

32
 2. Reflects social condemnation of committing felonies and the supposed
risk they represent

C. Limitations to Applying the FM Rule

i. Inherently Dangerous Felony Limitation
1. People v. Howard
a. D pulled over in stolen SUV for missing license plate, speeds away,
high speed chase ensues, during which D runs lights/stop signs and
turns off lights, eventually police abandon pursuit, shortly thereafter,
D runs a red light, hits 3 rd car, killing driver
b. D charged with murder and evading police
c. Difference from Fuller is here, prosecution using common law 2nd
degree murder FM, which unlike 1st degree, lacks a statutory list of
predicate felonies
d. In CA, only felonies that are “inherently dangerous to human life”
qualify for 2 nd degree FM
i. Test used: in abstract (not on facts of the particular case) ,
is it theoretically possible to commit the offense without
creating a substantial risk of someone being killed
e. Here, despite offense requiring vehicle to be driven in “willful or
wanton disregard for the safety of persons or property,” the court
finds it not to be an inherently dangerous felony b/c the statute
provides that statute expressly satisfied if D commits 3+ “points”
violations, many of which are not inherently dangerous
f. Concurrence
i. Would completely abolish 2 nd degree FM in CA and accuses
the majority of straining logic to reach more just
determination while retaining the general rule
g. Dissent
i. If plain language of relevant offense establishes that its
viewed as dangerous, that should end the inquiry
2. Majority Rule - “Facts of the Case” Test
a. Question is whether, on the facts of the specific case at trial, the
predicate felony was committed in an inherently dangerous manner
b. I.e. - did the method of commission in this particular case create a
substantial risk of death?
3. Minority Rule – “Abstract” Test (e.g. - CA)
a. Question is whether the predicate felony offense could theoretically be
committed in a manner not inherently dangerous to human life
i. E.g. – Howard

33
 1. Note – this requires carefully assessment of the definition of the
predicate felony
ii. Depraved Heart Degree Murder versus FM
1. Depraved heart doctrine permits factfinder to find (implied) malice in
many situations involving the commission of felonies, especially
dangerous ones
2. FM essentially establishes malice by law, regardless of whether in
actuality, D created (and was aware of) a substantial/unjustifiable risk of
causing death through conduct
D. The Merger Limitation (Independent Felonies)
1. People v. Smith
a. D appeals 2 nd degree FM conviction, with felony child abuse as
predicate offense
b. D and boyfriend abused V together, in course of abuse D knocked V
backward, V fell, hit head on closet door, and died from head injury
c. “Merger” Doctrine at issue:
i. Genesis of limitation is that felonious acts that are integral to
a killing should not ground FM liability, because this would
turn all assaults where death occurred into murders, without
any analysis of mens rea, and this represents the vast
majority of homicides
1. Examples of felonies found to “merge” with homicide: assault w
deadly weapon; burglary w intent to assault; discharging firearm
in inhabited dwelling
2. Examples of felonies found not to merge: furnishing narcotics;
DUI via narcotics; poisoning; armed robbery; child abuse
committed via neglect rather than assault
d. Previously recognized exception to merger is if predicate felony
committed w “independent felonious purpose” distinct from homicide
1. Here, FM not applicable b/c of merger due to fact that child
abuse of the “assaultive” variety
2. People v. Chun
a. Modifies CA test, establishing that merger applies to any felony that is
“assaultive in nature”, thereby removing possibility of FM rule
application
b. “Assaultive” = “involves a threat of immediate violent injury”
c. Test: whether, as defined, the relevant felony offense involves one or
more “assaultive” elements
i. Note: if the offense contemplates commission through either
assaultive or non-assaultive means (e.g. child abuse), then

34
 the offense is precluded from being the basis of the
application of the FM rule
E. The Scope of a Predicate Felony
i. Assessing “Perpetration” and “in Furtherance” of Felonies for FM Rule
1. State v. Sophophone
i. D, along with others, breaks into home, residents call police,
D and others flee
ii. D captured and handcuffed
iii. Meanwhile, D2 chased down by other officer, fires at officer,
who returns fire, killing D2
iv. D convicted of murder of co-felon via FM rule at trial, appeals
v. D argues b/c he was in custody, away from D2 at time when
D2 was killed, his FM exposure should end at that point
b. Court finds: (1) time, distance, and causality only relevant in relation
to question of whether killing occurred “in the commission” of
predicate felony; (2) real question in this case is whether D can be
convicted for lawful as well as unlawful killings via FM rule
ii. Two Approaches to Killings Not Directly Caused by D
1. “Agency” (majority rule) – Ds only responsible for deaths directly caused
by themselves or co-felons
2. “Proximate Cause” (minority rule) – D responsible for any killing his
conduct considered proximate cause of (broader)
3. Here, court applies rule of lenity (strict construction) and adopts agency
approach, and overturns FM conviction
4. Dissent – statute is silent as to agency or prox. cause approach, plain
language does not limit to killings by co-felons
F. The MPC Alternative
i. §. 210.2(1)(b)
1. Homicide is murder when:
a. “[inter alia] … it is committed recklessly under circumstances
manifesting extreme indifference to human life. Such recklessness and
indifference are presumed if the actor is engaged or is an accomplice
in the commission of, or an attempt to commit, or flight after
committing or attempting to commit”
2. Robbery
3. Rape or deviate sexual intercourse by force or threat
4. Arson
5. Burglary
6. Kidnapping

35
 7. Felonious Escape
a. This provision is allows, but does not require a factfinder to find that
a D who kills (i.e. causes death) did so with the lowest required mens
rea for murder under the MPC of extreme recklessness (recklessness +
extreme indifference to human life) when the killing takes place
during the commission of one of the enumerated felonies
G. Applying the FM Rule
i. Is the FM Rule Available?
1. Statute provides for FM or if general common law jurisdiction (bar exam)
a. CL– YES
b. MPC – NO
ii. Did the Death Occur During Underlying Offense/Flight?
1. Assess when commission of offense begins and when it and flight end
iii. Does the Death Fall w/in Scope of FM Rule?
1. Agency theory (majority – assume if not specified)
2. Proximate cause theory (minority – use if instructed)
iv. Assess the Underlying Offense – “Inherently Dangerous”
1. Predicate felonies listed? If so, is the felony at issue listed?
2. If not, assess whether “inherently dangerous”
a. “facts of the case” test (majority – assume if not specified)
b. “abstract” test (minority – use if instructed)
v. Assess Merger Doctrine
1. Does the predicate felony contain an “assaultive element”?

9. CAPITOL OFFENSES
A. Imposing the Death Penalty: Sentencing
i. Furman v. Georgia
1. Plurality held that unfettered jury discretion to impose death sentence
violates 8th Amendment
ii. Gregg v. Georgia
1. D convicted of intentional murder and armed robbery, post-conviction
hearing jury finds two aggravating factors beyond RD and sentences to
death
2. Majority: process constitutional b/c discretion to impose death penalty
controlled by clear and objective standards
3. Concurrence: despite evidence of bias in application of death penalty,
criminal justice system remains “fundamentally fair”

36
 4. Dissent (Brennan): death penalty per se violates 8th amendment b/c total
denial of human dignity Dissent (Marshall): no evidence of deterrence,
and regardless, total denial of human dignity
iii. Woodson v. North Carolina
1. Mandatory death sentence for all 1st degree murders unconstitutional
b/c (1) confers backdoor unfettered discretion to jury to convict on 1st or
2nd degree murder in order to determine who gets death penalty; and (2)
no individualized process of assessment of D and circumstances of crime
to guide decision re: death penalty
iv. Ring v. Arizona
1. 6th Amendment right to jury trial encompasses post-conviction
sentencing hearing for capital offenses
v.
B. Racial Discrimination and State Killings: the 8th Amendment and Equal
Protection
i. McCleskey v. Kemp
1. Convicted of murdering white cop during robbery, sentenced to death by
jury following hearing and finding of 2 aggravating circumstances
2. Relied on “Baldus study” that demonstrated significant independent
impact of race in death penalty decisions: based on race of both victim
and perpetrator, with Black defendants who killed white victims being
4.3x more likely to be sentenced to death
3. Court accepted findings of the report, but found that demonstrated
systemic bias in application of death penalty to be constitutionally
permissible
ii. Equal Protection
1. Must show purposeful discrimination that had a discriminatory effect on
D specifically “must prove that the decisionmaker in his case acted with
discriminatory purpose”
2. Where “necessary discretion” attacked, “exceptionally clear proof” req’d
for inference of abuse of discretion
iii. 8th Amend
1. Must show constitutionally unacceptable amount of risk of racial bias
iv. Majority Holding – Constitution does not req. States to “eliminate any
demonstrable disparity that correlates with a potentially irrelevant factor in
order to operate a criminal justice system that includes capital punishment.”
v. General “Concerns”
1. 1. While study accurate, acting on it would “throw[] into serious question
the principles that underlie our entire criminal justice system.” 2. Because
unclear if any deterrent effect, leave to legislature to decide

37
 vi. Dissent - Racism is especially repugnant, is never relevant, the death penalty is
an extreme punishment, and race plays a major role in its application, and so
the disparities demonstrated in the Baldus study should not be tolerated

C. Evidence in Capital Sentencing: Victim Impact Evidence and the 8th

Amend.
i. Payne v. Tennessee
a. D convicted of 2x 1st degree murder and sentenced to death
b. Appeals, arguing that admission of VI evidence (mother of V)
prejudicial at sentencing hearing Booth – 8th Amend. “prohibits a
capital sentencing jury from considering victim impact evidence" that
does not "relate directly to the circumstances of the crime” and
“admission of a victim's family members' characterizations and
opinions about the crime, the defendant, and the appropriate sentence
violate” 8th as well Gathers – held prosecutor statements at
sentencing re: character of victim, irrelevant and banned
2. Majority – State choice whether to admit VISs re: V and impact of murder
on V’s family by declaring it relevant
3. Permits VI “evidence relating to the personal characteristics of the victim
and the emotional impact of the crimes on the victim's family."
Concurrence – Souter – all individuals are unique, so this creates risk of
certain Vs “counting” more than others Dissent – Stevens
i. Violates stare decisis by no explicitly overruling, but drawing
an unclear, nonsensical distinction w precedent – also
Marshall’s main point
4. Because D being prosecuted, D has const. rights, Vs do not
5. Evidence re: V and family “sheds no light on D’s guilt or moral culpability”
but instead will solely encourage imposition of death based on emotions
rather than analysis of relevant A/M factors
ii. Booth Post-Payne Bosse v. Oklahoma
1. SCOTUS overrules admission of VI evidence commenting on what sentence
relatives of V recommend (death) Thus, victim impact evidence now
unclear, but:
a. Permitted: “evidence relating to the personal characteristics of the
victim and the emotional impact of the crimes on the victim's family.“
– Payne
b. NOT Permitted: relatives of victims to recommend sentence to jury
i. Unclear: everything else from Booth: victim family members
characterizations and opinions about the crime itself and
defendant

38
 D. Substantive Limitations on Death Penalty
i. Tison v. Arizona
1. D1 and D2 (Raymond/Ricky) participate in armed prison break
2. Flag car to rob occupants and steal car, Gary Tison/Greenwalt kill 4
occupants of car
3. D1 and D2 convicted of murder via FM and as accomplices (no direct role
in actus reus of homicides)

ii. Enmund – FM simpliciter insufficient culpability for death penalty (e.g. driver of
getaway car for robbery where 2 co-felons kill)
1. Majority – when D vicariously liable for murder (e.g. FM/accomplice)
death penalty reqs. finding of “major participation” in predicate felony +
mens rea of “reckless indifference to human life”
2. Dissent (Brennan) – (1) majority permits death sentence in absence of
any act by D for which D could be sentenced to death; and (2) law
regularly distinguishes b/w subjective decision to kill and reckless killings
Beyond Tison and Vicarious Liability
a. Execution also banned: (1) for rape (w/out intent to kill or actual
death); (2) legally insane persons; (3) person with serious intellectual
disability;

10. RAPE AND SEXUAL OFFENSES

To get started right away, just tap any placeholder text (such as this) and start typing.
A. Common Law
i. Common Law Forcible Rape Common law rape: “carnal knowledge of a female
[not married to], forcibly and against her will”
ii. State v. Alston – Force or Threats
1. D convicted of 2nd degree rape: (1) vaginal intercourse with the victim
(2) by force and (3) against the victims will.
a. Argues insufficient evidence of (2) force
2. “Force” element = (1) actual physical force; or (2) “constructive” force
(threats of serious bodily harm reasonably inducing fear thereof)
a. Here, D’s conduct was generally threatening to V, his ex-girlfriend,
however, despite lack of consent, NC supreme court finds that no
evidence of actual or constructive force b/c “generalized fear” V has
of D insufficient, and no evidence D made specific threats of serious

39
 bodily harm in the moments directly leading up to the non-consensual
sex that “overcame the will” of V
iii. General Elements:
1. Sexual intercourse (now typically sexual penetration, no matter how
slight)
2. “against the will” of V (no consent)
3. By force or threat
a. If V physically resists, force element satisfied if force is sufficient to
overcome resistance. At original common law the req. was that V
resist to the maximum extent physically possible. Where any
resistance is required for forcible rape, typical rule now is
“reasonable” resistance, which may be very slight b/c a reasonable
woman is aware that resistance is dangerous.
b. If V does not physically resist (or the force used is considered
insufficient), to convict, the factfinder must find that the decision not
to resist was made by V based on a reasonable fear of her immediate
physical safety.
B. Common Law Consent: The “Resistance” Requirement
i. Rusk v. State
1. 2 nd degree rape: (1) vaginal intercourse; (2) by force or threat; (3)
against the will/without consent Force –
2. V resisted and resistance overcome by force Threat
3. V prevented from resisting by threats to safety rendering V “reasonably”
in fear Court of Special Appeals
a. Here, despite inducing V to come to his apt by taking her keys,
“lightly” choking her, and asking whether D would let her go if she did
what he wanted, no rape b/c V failed to resist sufficiently, and did not
fail to do so based on reasonable belief in threat to her safety Court of
Appeal
b. When properly instructed jury convicts, they necessarily find threat
element satisfied and here, sufficient evidence to support conviction
c. Focus should be on conduct of D, not V, and whether such conduct
would put a reasonable woman in sufficient fear to not resist
i. Notes mounting evidence at time that woman who resist are
more often hurt or killed than those who do not

C. The Ager Example

i. Facts:
1. V goes camping with male acquaintance. They are in a remote place alone
together and it is night time. D begins to make sexual advances. V rebuffs

40
 them. D persists. V slaps away touching. D continues to persist. V, crying,
gives in and D has sex with V.
ii. Original Common Law Rape
1. No rape b/c lack of utmost resistant by V (also lack of corroborating
witness)
iii. Modified Common Law Rape (Alston/Rusk)
1. Probably no rape b/c insufficient force (actual or constructive) and no
suggestion that V stopped resisting b/c of fear of physical safety
iv. Original MPC
1. No rape b/c no force or threat (similar to modified CL rule)
v. Proposed MPC
1. No forcible rape b/c lack of use or threat of “aggravated physical force”
2. Likely no Aggravated Sexual Contact (p. 427) b/c no use or threat of
“physical force” (physical strength sufficient to restrain a person or cause
bodily injury, … Physical strength that meets this standard is “physical
force” under this subsection, regardless of whether it is sufficient to
overcome a person or preclude resistance.)
vi. Likely “Offensive Sexual Contact” (misdemeanor) – (1) sexual contact (2) no
consent (3) D recklessly disregards lack of conse
D. MPC
i. Original Provision – §. 213.1 Rape
1. A male who has sexual intercourse with a female not his wife is guilty of
rape if: (a) he compels her to submit by force or by threat of imminent
death, serious bodily injury, extreme pain or kidnapping, to be inflicted on
anyone; or …
ii. Proposed Revised Provision - Forcible Rape
1. (1) An actor is guilty of Forcible Rape if he or she knowingly causes
another person to engage in or submit to an act of sexual penetration or
oral sex by using or threatening, explicitly or implicitly, to use aggravated
physical force against that person or anyone else. …
iii. “Aggravated physical force” means physical force that is sufficient to overcome a
person or inflict serious bodily injury.
iv. Key Differences
1. Ungendered
2. No “imminency” language
3. No spousal immunity
4. Not limited to intercourse (“sexual penetration or oral sex”)
5. “Knowingly” mens rea
6. Prior consent by V no longer a mitigating factor (“voluntary social
companion”)
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 E. Redefining:
i. Force
1. Commonwealth v. Berkowitz
i. College campus non-consensual sex in dorm
ii. V wanders into D’s dorm looking for a friend, D tries to
initiate sexual activity, V says no, D persists, but only
physical force involved is lifting V onto bed, removing V’s
clothing, and performing sex act
iii. V does not physically resist, but says “no” repeatedly
iv. D convicted of “forcible compulsion” rape as well as sexual
assault, appeals arguing (1) no threat or use of force; and (2)
“reluctant submission” by V amounting to consent
b. PA Rape Statute: Rape = (1) nonconsensual (2) sexual intercourse
with another person not his spouse: (3) by forcible compulsion; or by
threat of forcible compulsion that would prevent resistance by a
person of reasonable resolution Forcible compulsion/threat – use or
threat of force of a degree that would “prevent resistance by a person
of reasonable resolution”
c. PA Interpretive Statute – No resistance req’d.
d. Rhodes – “Compulsion” = physical force/violence or moral,
psychological or intellectual force that compels V to participate in sex
act against V’s will (broader than usual limitation to physical force)
i. Factfinder must determine whether actions of D would
prevent a “person of reasonable resolution” from resisting
2. Factors in Assessing “Compulsion” (non-exhaustive list):
a. Age (V and D)
b. Mental/Physical condition (V and D)
c. Atmosphere/setting
d. Whether D occupied position of authority, domination, or custodial
control over V
e. Whether V under duress
ii. Here: Force – some degree of force beyond actual act of sex necessary, not
satisfied here
a. Threat – V could have got up and walked out of the room at any time
without any risk of harm/danger
b. Result – if V simply says no and D ignores this, it is not forcible rape,
despite being non-consensual. In this case, D ends up not guilty of
forcible rape, but guilty of indecent assault.
F. M.T.S.
1. 17 year D and 15 year old V consensually kiss, then D has sex with V
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 2. V’s account – D begins to have sex w her while asleep
3. D’s account – V actively consented, but revoked consent and he stopped at
that moment
a. 2nd degree sexual assault: “sexual penetration using physical force…”
ii. Q: what amount of force req’d?
1. NJ Appellate Division Court
a. Some degree of force beyond that necessarily involved in performing
sex act necessary by plain language of statute – overturns conviction
NJ Supreme Court
i. “any act of sexual penetration engaged in by the defendant
without the affirmative and freely-given permission of the
victim to the specific act of penetration constitutes the
offense of sexual assault”
1. Thus, no force beyond that of actus reus of sexual penetration
necessary for conviction
iii. NJ req’s “affirmative/freely-given permission” to sexual penetration
iv. Permission/non-permission may be inferred either from acts or statements
reasonably viewed in light of the surrounding circumstances (note – D may be
found to not consent even if does not say “no” explicitly if the totality of
circumstances indicate a lack of permission
v. Reasonable mistake of (active) consent available as a defense (D subjectively
believes consent given, and that belief reasonable based on totality of the
circumstances) – burden on D as an affirmative defense
G. Contemporary Sexual Assault/Rape Laws
i. Force or compulsion often remains as an element of a jurisdiction’s most serious
sexual offense laws (rape or sexual assault) Force
ii. Some states req. some degree of force beyond that strictly necessary to perform
the actus reus of the relevant sex act (e.g. Berkowitz)
iii. Some states don’t req. any force beyond that that essential to sex act (e.g. M.T.S.)
iv. Consent
v. Some states follow “no means no” rule – any express statement vitiates consent
vi. Some req. freely given permission, based on totality of circumstances
vii. Consent may be revoked at any time (D must stop act in question as soon as
consent is revoked (e.g. In re John Z)
1. however, if D charged with forcible rape, relevant force/threat must
occur after consent is withdrawn (e.g. State v. Flynn)
H. Threat/Compulsion
1. Typically requires that D’s conduct and relevant circumstances created
situation where V’s subjectively held fear reasonably prevented resistance
(where no force at all involved) – this is increasingly easy to demonstrate
43
 given evidence that resistance may be dangerous Mistake of Consent
Defense Availability
ii. Majority rule – reasonable mistake of V’s consent available as affirmative
defense (e.g. M.T.S.) (typically assessed based on totality of circumstances) –
note that a person must consent to the specific sex act in question (consent to
vaginal intercourse applies only to that act, does not automatically extend to
other sex acts (e.g. anal or oral sex)
iii. Minority rule – no mistake of consent defense available (e.g. Berkowitz) Note –
where no force beyond that necessary to carry out sex act req’d (M.T.S.), it is
more likely that a reasonable mistake of consent defense available and
important b/c if some additional force req’d this typically precludes any such
defense being successful
I. “Consent” Obtained by Deceit
i. Boro v. Superior Court
a. D charged with rape where V “unconscious of the nature of the act” at
the time of sexual intercourse
b. D had convinced V he was a Dr. and that V had contracted a
potentially fatal disease that could only be treated by either invasive
surgery or having sex with an inoculated partner
c. D seeks order restraining further prosecution, arguing that V was
conscious as to fact she was engaging in sexual intercourse and this
precludes prosecution Fraud and Consent Fraud in the factum – V
unaware that a sex act being performed or that sexual partner is not
spouse DOES vitiate consent Fraud in the inducement – V consents
based on D’s fraud/lies but is aware of the nature of the sexual act –
DOES NOT vitiate consent Here – b/c V aware of engaging in sexual
intercourse, it is fraud in the inducement and V conscious of the
nature of the act so no conviction
i. Note – CA changed the law to criminalize fraudulent
inducement to sex based on false claims of professional
treatment and same D convicted later with different V
ii. Note – Be careful to the distinction between the scope of
consent and fraud in the inducement. Modern statutes
require consent to the specific sexual acts engaged in and so,
acts such as lying about whether wearing a condom, or the
like consent simply does not exist to start with (b/c the
specific type/nature of sex act not consented to
J. Mens Rea Issues for Sexual Offenses
i. Common Law – recall that at common law general intent (i.e. some form of
culpability) was all that was generally required, except for specific intent
offenses. In the past, when Vs were req’d to physically resist, the question of a

44
 D’s mind state regarding re: existence of consent was not one that would be at
issue (b/c it is obvious that a person physically fighting off someone does not
consent).
ii. As the degree of force/threat necessary for even forcible rape has decreased
over time and the number of sexual offenses not requiring any force have
increased, questions of mens rea have become more central.
iii. Commonwealth v. Lopez
a. V’s account: D meets V, assures V she is safe and leads her to secluded
area in woods where he proposed sex and V expressly declined:
grabbed by wrist and kissed, raised her shirt, touched breast, pulled
her back after she pulled away, pushed V against slab, undid and
pulled down V’s pants, put on condom and had sex with V, who said no
throughout and began to cry, bruising knees and causing injury
(swelling/trauma) to V
b. D’s account, V was willing, active sex partner who was angered after
the consensual sex that D could not accompany her to a party later
2. Relevant Rape Statute req.: (1) intercourse; (2) no consent; (3)
compulsion by force or threat of bodily injury
3. D requests mistake of fact (consent) instruction to the jury, but TJ refuses
to issue based on law and facts of case b/c sole issue credibility for jury to
assess, either there was actual consent (D’s account) or there wasn’t (V’s
account) and if the latter, no evidence to support a mistake of fact re:
consent
iv. Mens Rea
a. No express mens rea term in statute
b. Court declines to read-in specific mens rea and adopts minority
position that reasonable mistake as to consent affirmative defense not
available, citing the req. of force or threat of bodily injury
2. The reasoning is that if a D uses sufficient force or threat of bodily injury
to compel V into sex that V does not subjectively consent to, that it is fair
for the burden to be on D to ensure true consent as D is on notice that V
presumptively does not consent b/c D has to use force or threat to compel
V to engage in sexual act.
a. Therefore, in MA and similar states, where an accused engages in
sexual intercourse and threats or force is involved (sufficient to satisfy
the rape statute), D must be careful to obtain affirmative consent
i. Here, obviously no consent at all and conviction stands (note
– on these facts a reasonable mistake of consent defense
would presumptively fail, even if allowed)
3. Where mistake as to consent is available as a defense, it is generally only
a “reasonable” mistake (objective, not subjective standard) and may

45
 require “substantial evidence” that would lead a person to “reasonably
and in good-faith believe consent existed where it did not” – Williams
(CA)
a. This makes the scope of consent to consensual sex acts involving force
or threats (e.g. bondage, etc.) very important
b. Reasonable mistake of fact defense not available where he said/she
said situation, but only where on uncontested facts, consent not
entirely clear (unlike Lopez)
K. Rape Shield Laws
i. Generally –
1. rape shield laws declare certain kinds of evidence relating to the
character/prior sexual history of a V inadmissible at trial
ii. Policy Reasons:
1. Avoiding harassing/humiliating V;
2. irrelevant anyways;
3. Focuses jury on specific incident/allegations; and
4. encourages reporting
iii. State v. Wilhelm
1. D meets V at a bar. D sees V flirting with 2 other men, exposing her
breasts to them, and allowing one of them to fondle her
2. D has sex with V later that evening, charged with rape
3. D argues that 6th Amend. Confrontation clause should allow him to
introduce
4. Colbath – held that evidence of V’s “sexually provocative attention”
toward several men, including D, including sexual touching b/w D and V,
admissible despite rape shield law due to 6th Amend
a. Here, court finds that state rape shield law prevents evidence from
coming in and is not overcome by 6th Amend. b/c (1) evidence of
general “unchasteness” of V not relevant, and V’s alleged sexual
actions earlier in the evening were not toward D; (2) whether acts
occur in public or private is irrelevant b/c privacy of V is only one
consideration → conviction upheld
iv. Generally –
1. rape shield laws vary by jurisdiction, but tend to exclude admission of
evidence related to the V’s sex life/history outside of the disputed specific
incident leading to the charges.
a. However, various exceptions exist, grounded in the 6th Amend. or
allowed by statute. Many of these are grounded in a finding that the
probative value of the proposed evidence outweighs its prejudice to V

46
 i. Examples include: evidence of prior sexual conduct between
the complainant and the accused; evidence of an alternative
source of semen, pregnancy, or injury; evidence of a pattern
of prior sexual conduct by the complainant; evidence of bias
or motive to fabricate the sexual assault; evidence offered to
prove that the accused had a reasonable but mistaken belief
in the complainant’s consent (where defense available); and
evidence of prior false accusations of sexual assault by the
complainant.
ii. Many of these exceptions are controversial – e.g. many argue
that no matter what V says or does regarding V’s general
attitudes toward sex, or sexually suggestive conduct, this has
no bearing on the central question of whether V would
consent to sex with a specific person.
1. Thus, many argue that if the D is aware that the V previously
consented to sex with many other people, or had a very active
sex life, that it is per se unreasonable for that person to presume
this makes it more likely V will consent to sex with D specifical

L. Revisiting Statutory Rape

i. Generally
a. In virtually all jurisdictions, age-based sexual offenses (statutory
rape) are strict liability offenses, and thus the prosecution need not
demonstrate that D was aware, or even negligently unaware, of the
fact that the V was underage
2. There are often “Romeo and Juliet” provisions, that create exceptions
when both parties are underage and engage in otherwise consensual sex
and may offer mitigation where age gaps are small
3. Majority of states do not permit a reasonable mistake of age affirmative
defense (thus, even if D took reasonable measures to ensure V of age, this
is no defense, such as checking ID, etc.)
a. Underlying notion is that people under a certain age are unable to
sufficiently understand the nature and consequences of sex to
meaningfully consent to it
b. Rarely statutory rape laws are gendered, criminalizing either only or
more harshly sex b/w adult men and underage girls
c. May raise legality/vagueness concerns: e.g. In re D.B. court found that
relevant statutory rape statute unconstitutionally vague b/c it
conferred unfettered discretion in application to police/prosecutors
(b/c in situations involving two similarly aged underage people
engaging in otherwise consensual sex, both actors are necessarily

47
 both victims and perpetrators of the offense and its up to the
authorities to decide whom to charge and whom to treat as the
“victim”

11. LARCENY AND THEFT OFFENSES

A. Larceny
i. Common Law
1. Common Law Theft
a. 1. The (physical) taking of the personal property (personalty) of
another, with
b. 2. The intent to deprive them permanently of it
2. Common Law Conversion
a. Exertion of unauthorized control over property of another without
consent of owner (i.e. “converting” property to one’s own use
(whatever that may be) against the consent of the owner).
i. Typically this did not need to be permanent.
ii. This comes into play where one has possession of property,
but exceeds permission (E.g. failing to return rented
property pursuant to the rental K → either for a period of
time or stealing it).
3. Basic Common Law Definition of Larceny
a. Trespassory taking (caption)
i. Jones
ii. D overpaid ($120,000 rather than $1,200) via direct deposit,
told not to withdraw $, but did so anyways before employer
could reverse the transfer
iii. Issue – was D’s removal of the money from his own account a
trespassory taking?
b. Forms of Trespassory Takings
1. Actual – the physical taking of property w/out consent of owner
2. Constructive – taking with permission obtained by deceit or
artifice (larceny by trick)
ii. Here, must have been actual taking because no deceit by D
(error by V)
c. Custody versus Possession of Personal Property
1. Possession – ability to exercise control over property (directly
or indirectly)

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 2. Custody – temporary physical control granted by possessor of
property
ii. Application:
1. Court finds that D merely had custody over excess $ b/c ability
to access them
2. Employer retained possession b/c D removed the $ while within
window to reverse the transfer (which employer trying to do)
iii. Trial conviction for larceny restored
ii. Timing, Larceny and “Continuing Trespass” Concurrence of the Elements and
Larceny
iii. If D takes property w/out consent of owner (i.e. trespass) but does not intend to
permanently deprive owner of the property at that time, D has not committed
larceny.
iv. Conversely, if D takes property w intent to permanently deprive owner, D has
committed larceny, even if D shortly thereafter changes mind and returns
property
v. Continuing Trespass Doctrine
1. The doctrine of “continuing trespass” covers situations where one
commits a trespassory taking but only later forms the intent to
permanently deprive the owner. In jurisdictions recognizing this majority
rule, the law views the trespass as ongoing so long as D has possession of
the property. Thus, at the moment D forms the intent to permanently
deprive, D commits larceny.
2. Examples
a. D takes V’s car w/out permission with intent only to run some
errands → no larceny
b. Same facts but after taking car D decides to sell it → larceny at the
moment D decides to permanently deprive
c. D takes V’s car w/out permission with intent to run errands. While
out, D decides to keep the car, but shortly thereafter changes his mind
and decides to return it → technically D committed larceny at the
moment he decided to keep it. Later decision to return it is irrelevant
and not a defense.
d. Alternatively, D is at a friend’s house and sees a nice piece of jewelry.
D picks up the jewelry, decides to keep it and puts it in her pocket. She
then decides not to keep it and puts it back → technically D committed
larceny b/c she took the property w/out permission (caption), moved
it by picking it up and putting it in her pocked (asportation), and did
this while possessing the intent to permanently deprive the owner
(mens rea).
3.

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 a. Custody v. Possession (Bailments)
i. Mafnas
1. Bank guard took $ out of bags during transport from Bank A to
Bank B
2. Bailment – situation where owner retains title but delivers
personal property to another for a limited, specific purpose via K
(express or implied)
a. Bailor – owner who entrusts custody to another
b. Bailee – person entrusted with custody by owner-bailor
3. Issue – Was D’s Taking Trespassory?
a. Two Approaches to Bailments
i. 1. Bailee granted temporary possession of package, but
as a whole and thus cannot open, if does so, “breaks bulk”
and this is a trespass
ii. 2. Bailee granted temporary custody only of package,
thus any removal of contents or taking away of entire
package is trespass
b. This Case Applying either approach, D is guilty of larceny b/c
he either never had possession of the money bags (custody
only), or he broke bulk by opening the bags and removing part
of contents Generally Employees – have custody, not possession
of employer’s goods Bailees – have possession of goods, but
cannot “break bulk”
i. Note – Here, Bank had possession of the money, the bank
retained possession of the money while Bank employees
prepared it for transport (they had custody only).
ii. If D was an independent contractor directly hired by the
Bank to transport the money bags, then D gained
possession of the bags (not contents), but however, if
Bank hired the Security Service to transport the bags and
D was an employee of the Security Service, D only had
custody of the bags (because the Security Service
retained possession).
b. Larceny – Victim Aid Rule (entrapment)
i. Topolewski
1. D convinced Nolan to arrange with Nolan’s employer for D to
pickup barrels of meat he had not paid for b/c Nolan owed D $
2. Nolan, however, told the V company, who then instructed
employee (agent) to set aside barrels of meat and that a person
would be coming for them, and to let the person take them

50
 3. Agent consented to taking by D, did not aid in loading, but aided
in arranging wagon
ii. Was Taking Trespassory (non-consensual) when V Aided D to
Obtain Property?
1. General Rule - The taking must be w/out the consent of the
owner (i.e. trespassory)
2. Rule re: Assistance by V - If a V or their agent materially assists in
commission of essential element of crime, then no crime (unless
larceny by trick or false pretenses → not the case here, b/c V
aware of actual circumstances therefore no reliance on
misrepresentation)
3. However, V may lay a trap by making commission easier, so long
as does not aid in actual commission
a. Here, material aid (prepping barrels, setting aside, having
agent let D get them, aid in securing wagon)
c. Carrying away (asportation)
d. Personal property of another (personalty)
i. Larceny – Defining “Personal Property”
1. Lund
a. D, graduate student, used keys and access codes of others
w/out their permission to obtain use of computer time and
possession of printouts
i. Note – D had to write code physically using keys, give
them to computer operator, who would feed into the
system, and then the system would produce a printed
report of the results
b. D convicted with felony larceny by false pretenses (value
>$100)
i. Value of computer access > $25,000, Value of keys and
printouts de minimis
2. Issue – at common law how is the stolen property defined and
the value thereof determined?
a. Appellate Court
i. Larceny under CL requires capture/asportation of
tangible property of another, therefore D could not have
committed larceny by stealing labor/services of
computer
ii. Value of stolen property to be assessed as market value
at the time of the taking

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 iii. Because only tangible property D obtained were
keys/printouts, and the market value of them was
virtually nothing (scrap paper), while statute reqs.
iv. Value over $100, conviction was improper
Note – Many jurisdictions have theft of services as an offense,
but common law larceny is limited to tangible property only,
unless clearly indicated otherwise by statute.

e. With the intent to steal (aka permanently deprive)

→ specific intent offense
i. Exceptions to Intent to Permanent Deprive
1. Davis
a. Fake return of shirt taken from store
b. D argues no trespassory taking of shirt or money (no to shirt
b/c remained in store and no intent to deprive, and no of
money b/c store agent aware of situation and instructed to
give refund)
c. Three Recognized Exceptions to the Req. of Intent to
Permanently Deprive
i. (1) “Sale” back to owner (2) Claim reward (3) Refund
ii.
B. Larceny by Trick
i. Larceny-by-Trick versus Conversion
1. Rex v. Pear
a. D rents horse, giving false address, rides it to different location and
sells
i. Two Scenarios
1. D lied when renting the horse, intending to permanently deprive
V of horse all along → If so, D is guilty of larceny (obtaining
possession by trick w intent to permanently deprive)
2. . D was going to take the trip, but after obtaining the horse, he
decided to sell it instead of returning it → If so, D is not guilty of
larceny, but is guilty of conversion Here, ample evidence for jury
to conclude that D intended to permanently deprive owner of
horse all along (giving false address, never taking the trip) and so
conviction for larceny proper
C. Larceny and Found Property Rule
i. Brooks

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 1. V dropped $200 by horse post, a few weeks later D finds $, slips it into
pocket, then spends some of it and plans to leave town
2. Found Property Rule If finder of property:
a. (1) knows who owner is or has reason to believe owner can be found,
yet (2) intends to deprive owner permanently of property at time of
finding, then this amounts to larceny, unless relevant circumstances
indicate property has been abandoned rather than lost.
3. Here – no evidence abandoned (cash), D found it and immediately took
steps to conceal his finding of it, and his conduct suggested an intent to
permanently deprive owner (by keeping/spending it).
4. The court found that, despite D not having seen notices by V, the jury
could still find that D had reason to believe the owner of that large a sum
of money could be easily found if he were to make efforts to locate the
owner.
a. Therefore – w/in discretion of jury to find D committed larceny at the
moment of finding and taking the $
D. Larceny – Mens Rea
i. Brown
1. D was angry with other boy for bullying him and entered house where boy
lived to take his bike in revenge, ended up taking bike of another
(“wheel”)
2. D claimed his plan was to take the bike for a few days to teach V a lesson
and then return it, but arrested in the meantime
3. Trial Jury Instruction - taking must be made with the intent to deprive
the owner of the property
4. Appellate Decision – jury instruction improper b/c larceny requires intent
to deprive owner of the property permanently, therefore improper
instruction and conviction quashed b/c if jury believes D, he did not
commit larceny
a. Note – at common law many jurisdictions had the lesser crime of
“wrongful appropriation” which criminalized temporary takings of
the property of another Note – permanently deprive does not mean
that the taker has to intend to keep property (i.e. may sell, give away,
abandon, etc. and this is still larceny) “Claim of Right”
5. Defense
6. Generally, if D has a right to possess the property at issue, then cannot be
charged with stealing it, however, this does not permit “self-help” to
satisfy debts.
a. Thus, if A owes B $200, and B sees A’s wallet, B cannot take money
from it w/out consent

53
 b. Similarly, if A owes B $200, B cannot take an item worth $200 with
the intent to keep it w/out A’s consent
c. However, if A has B’s property, B cannot be convicted of larceny for
taking back that property w/out A’s consent
d. Note that the rule that one cannot steal from oneself applies to jointly
owned property (e.g. co-owner A with B of a car cannot commit
larceny by taking the car w/out permission, leaving and keeping it)
E. False Pretenses
i. Ingram and Whight Elements of Theft by False Pretenses (
1. 1) False representation of fact (past or present, not future)
2. (2) D knows it is false
3. (3) D intends to defraud (obtain property by deception)
4. (4) V actually relies on the misrepresentation
5. (5) V passes title to D of property in reliance on lie
a. Note – mere “puffery” or sales talk, or forecasting of future fact does
not qualify
6. Whight
a. D’s ATM card works at store, despite acct being cancelled. D, aware of
this, withdraws $19,000 in various cash-back transactions
b. Turns out that the card reader service (3rd party) had error that
repeatedly responded as neither accept nor decline, but rather
indicating no response
c. Store policy was to complete all such transactions in reliance on
customer representation that card valid and fact that not
affirmatively declined by system
7. Court found conviction was proper for theft by false pretenses b/c store
passed title to the money to D based on D’s intentional deception of
proffering the card as valid
F. Embezzlement
i. Bazeley
1. Head bank teller pocketed bank note from depositor at bank (received
from agent)
2. No larceny because no trespassory taking, b/c possessed in trust from
depositor and a breach of trust is not a felonious taking
a. However, is embezzlement (statutory offense)
3. Elements of Embezzlement General Definition: The unlawful conversion of
the property of another by one who already had possession of the
property.

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 a. (1) Unlawful/fraudulent conversion (2) Property of another (3) By D
in lawful possession of property (4) Entrustment – relationship of
trust b/w D and V (4) Intent to permanently deprive (includes giving
away, etc.) → not always necessary
b. Conversion - Holding or using of property in a way that is adverse to
the true owner of the property

12. DEADLY FORCE/ SELF DEFENSE

A. Overview
i. While similar, rules differ in relation to the use of deadly versus non-deadly
force in self-defense, always assess the degree of force used to determine which
situation you are dealing with the from outset
B. Peterson
i. D shoots V in D’s backyard while V is stealing D’s windshield wipers Common
Law
C. Deadly Force Self-Defense Req.
i. (1) Threat to D (actual or apparent) (2) Threat is of deadly force and is both
immediate and unlawful (3) D believes in imminent peril of death or serious
bodily harm, and (4) D believes that D’s use of deadly force necessary to save
self from threat “Deadly Force” = force capable of inflicting death or serious
bodily harm
D. Common Law Exceptions (D not entitled to use deadly force in self-
defense):
i. When D was the initial “aggressor”
ii. When D had the duty to retreat
E. The Initial Aggressor Rule
i. “One who is the aggressor in a conflict culminating in death cannot invoke the
necessities of self-preservation” Aggression – “an affirmative unlawful act
reasonably calculated to produce an affray foreboding injurious or fatal
consequences”
1. If D was the initial aggressor, self-defense unavailable
2. Includes situations where D removes self to location of “comparative
safety” and then voluntarily returns to the scene of altercation (often this
involves situations where D leaves conflict, arms self, and returns)
3. 2However, this is to be distinguished from situations where a person
carries a weapon lawfully for self protection generally
ii. Unless (exceptions to the aggressor rule exception):

55
 1. (1) Withdrawal – D clearly communicates intent to w/d from conflict and
makes good-faith effort to do so
2. (2) Escalation – D’s aggressive conduct minor, but evokes a completely
disproportional response, elevating the situation from a clearly non-
deadly one to a potentially deadly one (e.g. D lightly pushes V, who
responds by taking out a knife)
iii. Peterson
1. TJ properly put issue of whether D was initial aggressor to jury b/c it was
a question of fact based on available evidence for jury to decide
F. The Duty to Retreat Rule
i. CL “retreat to the wall” rule requires D to retreat, rather than use deadly force in
self-defense so long as D can do so in complete safety
ii. US Approaches:
1. Duty to Retreat
a. Majority Rule – “stand your ground” rule permits D to use deadly
force whenever D reasonably believes using such force necessary to
prevent death or serious bodily injury, even if D knows he can retreat
in complete safety
b. Minority Rule – follows common law (duty to retreat if can do so in
complete safety)
c. “Castle” Doctrine - No duty to ever retreat from one’s home (or place
of business)
i. Note – questions of whether and how far this extends to the
“curtilage” outside one’s dwelling varies by jurisdiction
d. Exception to Castle Doctrine
i. Not available to initial aggressors (one “without fault in
bringing the conflict on”)
1. Thus, if A invites B over to A’s home for drinks, then A starts a
fight with B, and ends of killing B, A cannot claim self-defense if
found to be the initial aggressor
iii. Peterson
1. Unclear whether D might have been able to invoke castle doctrine based
on location of conflict (backyard), however, the jury found D to be the
initial aggressor so the castle doctrine is not available to D.
G. MPC
i. MPC s. 3.04 – Use of Force in Self-Protection
1. General Rule (all defensive uses of force) Deadly Force in Self-Defense
MPC s. 3.04(2)(b)

56
 a. D must believe use of deadly force necessary to protect self against
death, serious bodily harm, kidnapping or compelled sexual
intercourse
i. Note – no “imminence” req. but “immediately necessary” 
key distinction is that at CL D must have feared being
“imminently” harmed, but under MPC, the focus is on
whether D’s use of force was immediately necessary to
prevent harm.
2. Effectively the MPC is more forgiving of preemptive uses of force in self-
defense
i. Note – no “reasonableness” limitation to D’s belief, but
3. Exceptions under MPC s. 3.04(2)(b) (deadly force NOT permitted) (i) D
provoked V in same encounter (ii) D can avoid necessity of using deadly
force with “complete safety” by complying with demands or retreating,
except form dwelling/place of work
ii. Degree of Force Permitted s. 3.04(2)(c)
1. Generally - D may estimate the necessary of using force in self-protection
under the circumstances as D believes them to be and no general duty to
retreat or do or not any act not otherwise required to do or not do to
avoid using force (NOT applicable to deadly force)
iii. MPC s. 3.09(2) and Reasonableness of Belief of Need to Use Force (including
deadly)
1. If D reckless or negligent as to whether claimed defense necessary, and
2. Such recklessness or negligence satisfies the mens rea req. of a charged
offense, then defense inapplicable and D is guilty
3. Therefore, in cases of uses of deadly force, if D subjectively but
unreasonably believed that he needed to use deadly force, D could be
convicted of manslaughter (recklessness) or negligent homicide under the
MPC ss. 210.3 and 210.4
iv. Assessing whether D the Aggressor
1. Not necessarily the same test as for provocation (murder to
manslaughter)
a. Examples p. 522-523, note 2 A. V in D’s home, V passes out, wakes up
to find D having sex with V’s wife, V lunges at D with knife, D takes
gun from under bed and kills V
v. CL Peterson std. – unclear whether aggression (was act of having sex with V’s
wife an “unlawful act reasonably calculated to produce an affray foreboding
injurious or fatal consequences” – may or may not be unlawful (usually no), may
or may not be “reasonably calculated”
1. MPC – NO, b/c aggressor conduct limited to acts with “purpose” of
causing death or serious bodily injury  result in actual case (not guilty)
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 vi. Riley – white supremacist D shouting racial epithets, rushed by mourners,
shoots several
1. MPC – no aggression
2. Common law – unclear, but likely “fighting words” may be found to
constitute aggressor behavior (departs from Peterson) (similar to 1st
Amendment exception for “incitement” to violence
vii. D threatened by A, who tells her not to walk in a certain public place or he will
kill her, next day D carries an exposed gun, A moves toward D aggressively, D
shoots/kills A
1. Common law – unclear, depends on how one interprets the “relative
safety/voluntary return” doctrine versus right to generally arm oneself
for self-defense
2. MPC – unclear, especially in light of s. 3.04(2)(b)(ii) which requires that
a D “comply w demands” to abstain from action, even if D has no duty to
abstain otherwise if in complete safety (was open carrying of gun
enough? Did she believe threat or think she could safely walk? Does
subsection apply only to immediate confrontations?

H. Additional Issues May be MPC

i. Escalation and Imperfect Self-Defense
1. If D is a non-deadly aggressor (e.g. punches V), then V’s response creates
a situation wherein otherwise D would be permitted to use deadly force in
self-defense, and D does use such force, then D remains responsible for the
initial aggressive conduct if criminal, but can raise self-defense
ii. Imperfect Self-Defense
1. D is initial, non-deadly force aggressor
2. D uses disproportionate force in self-defense (entitled to use force, but not
deadly force)
3. D unreasonable in assessment of whether deadly force use necessary
iii. Result Varies as to Whether a Full Defense
1. In some places self-defense is either a full or no defense
2. Elsewhere, may mitigate murder to manslaughter or some other offense
E.g. – Dill
3. Small D in car in parking lot, V lunges at D with knife through open
window, D responds by shooting V lethally w intent to kill
4. Result was manslaughter conviction based on finding that no imminent
need to use deadly force (could close window or drive away, but chose
option of deadly force)
I. Assessing Claims of Self-Defense
i. Goetz
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 1. D, claiming to have been a victim of previous crimes, carries a gun on NYC
subway
2. 4 Black teenagers approach D, one says “give me five dollars”
3. D stands up, immediately shoots with intent to kill 4x, then finds 1 of 4 Vs
at other end of car and shoots him, severing spinal cord
4. D charged with attempted murder, appeals indictment, claiming
improper characterization of self-defense rule in NY as objective, when
wholly subjective
ii. NY Law General use of force – reasonable belief necessary to prevent use of
force by V D reasonably believes imminent Deadly use of force – reasonable
belief V using or about to use deadly force, or reasonably believes V committing
or about to commit … robbery
1. Court
a. NY chose not to adhere exactly to MPC
iii. Self-defense either perfect or no defense at all and uses term “reasonable”
therefore it is a hybrid subjective-objective inquire (D actually and reasonably
believed) Reasonableness to be Assessed Contextually (Circumstances of
Situation)
iv. Factors Relevant to Assessing Reasonableness of Use of Deadly Force
1. Knowledge D has of V (propensity for violence, carrying weapons, etc.)
2. Comparative physical attributes (size, strength, etc.)
3. Relevant prior experiences of D
J. Assessing Reasonableness in Context
i. Wanrow
a. D found out that in all likelihood V had abused D’s child, tried to get D
arrested, police said they would not be able to for several days
b. D and others stayed together out of fear of V. Eventually V shows up
where D is, comes inside, allegedly says comment about child and. D
screams at V to leave, he doesn’t. D shoots/kills V
c. D convicted at trial of 2nd degree murder
2. Appeal – How to Assess Reasonableness of D’s Apprehension of Danger
(belief that use of deadly force by V imminent against D)?
3. TC – self-defense only available where D’s threats made at time of or
immediately before killing
4. Appellate Court – improper description of rule, which is one of
reasonableness, with any evidence relevant to the reasonableness of the
specific D’s apprehension of danger from V to be considered
a. Key Factors in this Case
i. D knew V carried weapons, and had reputation for violence
ii. D a 5’4” woman in a leg cast, V a 6’2” large, drunk man
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 5. Not Relevant
a. That D Native American and held certain beliefs due to this
b. Therefore, conviction reversed
K. Battered Woman Syndrome (BWS)
i. Norman Essential Facts
a. D subjected to 20 years of extreme physical and mental abuse by V
b. D shoots V in head while V sleeping, claims self-defense
c. Experts opine that D believed no way to prevent further abuse than to
kill V b/c of BWS
2. Issue(s)
a. Does the imminence req. prevent the jury from considering self-
defense based on BWS where V did not pose an immediate threat to D
when D killed V?
3. Rule
a. Generally, one must have a reasonable fear of imminent death/bodily
harm to use deadly force in self-defense
4. Analysis
a. Ct. of Appeals – imminence may be relaxed in order to properly
contextualize the situation
b. Sup. Ct. – imminence req. still applies and on these facts no evidence
to put self-defense to jury
c. Conclusion - Conviction restored
ii. What is BWS
1. Called various terms, often treated as a sub-category of PTSD
2. Associated with learned depression, passivity, and perceptions of
hopelessness in terms of the ability to change the situation
3. Now typically referred to as “Battering and its Effects” or “Intimate
Partner Battering”
iii. Availability of BWS Evidence for Self-Defense (always reqs expert)
a. Depends on the situation
i. Scenario 1 – killing occurs during ongoing confrontation –
BWS evidence almost always admitted contextualizing
reasonableness
ii. Scenario 2 – killing occurs while V does not present any
immediate threat to D (Norman)
1. Almost always admitted as evidence of D’s subjective belief
deadly force necessary
2. Sometimes admitted as evidence of reasonableness of D’s use of
deadly force

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 iii. Scenario 3 – battered person hires 3rd party to kill batterer –
admitted in a small minority of jurisdictions
iv. Other Uses
1. A battered woman is being tried for a crime and introduces a defense of
self-defense, coercion, or insanity;
2. A battered woman has been charged with or convicted of a crime, and
evidence of battering or its effects is offered to reduce the seriousness of
the charges or the severity of the sentence;
3. A batterer is being tried for murder or assault, and when the defense
raises questions about the battered woman’s behavior or responsibility
for the abuse, the prosecution introduces evidence about battering and its
effects to explain the woman's behavior;
4. Battering is involved in the case, and counsel wants to address potential
myths or misconceptions about domestic violence that might be held by
the judge or jury.
L. Deadly Force in Self-Defense Defense of Others
i. Kurr
1. Essential Facts
a. D, approx. 16 weeks pregnant, stabs/kills V after he punched D in
stomach 2x
b. Refused defense of others jury instruction, convicted of manslaughter
2. Issue
a. Does a non-viable fetus qualify as a “person” for defense of others?
3. Rule(s)
a. Person may use force to protect others to same degree permitted to
protect self
4. Analysis
a. Fetal Protection Act establishes that fetuses are worthy of protection
as “living entities” as matter of public policy
b. Because Act protects fetuses from unlawful conduct, defense of others
concept extends to protect nonviable fetus from an assault against
mother
i. Does NOT extend to un-implanted embryos
ii. Unlike abortion cases b/c only covers unlawful harms
(assault of mother)
5. Conclusion
a. Reversed and remanded
ii. Generally
a. A may use force to protect B from C to the same extent B would be

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 2. Reasonable Belief versus “Alter-Ego”
a. Majority Rule –
i. Reasonable Belief – A may use force to protect B from C to
the extent A reasonably believes B would be entitled to use
such force to protect self
b. Minority Rule –
i. Alter Ego – A steps into B’s shoes, and has whatever right to
use for that B actually has, thus if A is mistaken, even
reasonably, as to whether B would have the right to self-
defense, A cannot raise defense of others.
3. Who May Be Defended
a. Majority rule – D may protect anyone
b. Minority rule (rare now) – D can only use deadly force to protect
specified people (e.g. spouse, children) The MPC
4. Approach
a. Fetuses are not a “person” under ss. 113(8) general definitions, or
210(1) homicide, therefore not available
M. Defense of Habitation/Dwelling
i. Boyett
a. D and V in a love triangle with W and hate each other
b. V arrives at D’s home, is shot in head by D in doorway under disputed
circs.
c. D refused defense of habitation jury instruction, convicted of murder
2. Issue(s)
a. 1. Does an intruder have to physically enter the home for occupant to
be permitted to use deadly force to repel them?
b. 2. If not, under what circs can D use deadly force to defend
habitation?
3. General Rule – defense of habitation permits use of deadly force against
intruder who outside the home but trying to force entry with the
apparent intent to commit a violent felony therein
4. Analysis
a. V was trying to gain entry to home, and some evidence that D may
have reasonably believed V had intent to commit violent felony
against D, but no evidence of any attempt at forced entry (V knocked
on door, stepped back)
5. Conclusion: conviction affirmed
6. Elements: Deadly Force in Defense of Habitation
i. V in home or attempting to gain forced entry of habitation

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 ii. D reasonably fears V has intent to commit violent felony in
home
b. Exception
i. D still cannot be the initial aggressor
7. Generally
a. Precise definition varies across jurisdictions by statute
b. Common definition: D “may use all of the force apparently necessary
to repel any invasion of his home” – all force reasonably assesses
necessary to repel intruder
c. In situations involving force used to repel would-be intruder before
intruder gains entry, “reasonable and factual grounds to believe that
unless so used, a felony would be committed” – often limited to violent
felonies
8. Application of Defense
a. Typically considered reasonable to use deadly force against intruder
one finds inside house (b/c reasonable to presume armed/dangerous)
– some jurisdictions have blanket rule that deadly force can be used
any time against intruders inside home
b. Typically considered reasonable to use deadly force against person
actively trying to break-in
i. Note – use of deadly traps to protect dwelling not permitted
(no booby traps)
9. MPC
a. Complicated provision (s. 3.06)
i. Most cases of forcible entry today will probably entitle the
defendant to use deadly force, but MPC more conditional
than the common law
N. Defense of Personal Property and Law Enforcement
i. Generally – Defense of Personal Property
a. D may use reasonable non-deadly force to protect property
b. Must be at or near time of V’s interference w/ property
i. Thus, if A tries to grab B’s laptop, B can use whatever degree
of force reasonably necessary to prevent A from taking the
laptop, short of deadly force
c. However, if A takes B’s laptop and runs of, and later that day B sees A
with the laptop, B cannot use force against A to recover the laptop
2. Law Enforcement
a. Generally, deadly force not permitted for anyone (police or private
person) to effectuate an arrest for a misdemeanor (consider Eric

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 Garner and George Floyd killings – officers not permitted to use
deadly force to arrest, and in fact, killings occurred after)
i. Massively disproportionate killing of Black suspects by
police
**Should deadly force be limited further? What about in situations involving
fleeing suspects (note – much of this is covered in criminal procedure)

13. NECESSITY, DURESS, INTOXICATION

A. Necessity
i. Generally, necessity involves situations where D is put in an emergency by non-
human forces, and D’s actions are justified, in terms of they are taken in an effort
to minimize social harms (harm minimization).
1. Necessity involves a choice between two bad alternatives that could not
be avoided, which arose from the circumstances rather than the actions of
a specific person.
ii. Nelson
a. D’s car gets stuck in mud, tries in vain to free it, becomes worried it
will tip over
b. D eventually goes to public works yard nearby and takes two vehicles
to try and remove his truck, damaging them in the process
c. D convicted of reckless destruction of personal property and joyriding
Issue – was the TJ’s jury instruction re: necessity proper?
2. Rule – Necessity is a justification defense, available when D’s illegal
actions were necessary to prevent a greater harm from occurring
3. Elements: (1) illegal act done to prevent significant evil; (2) no adequate
alternative; (3) harm caused not disproportionate to that avoided
4. Analysis
a. Based on facts, D manifestly has no necessity defense b/c: no
significant evil (D merely worried truck would be damaged); adequate
alternatives existed (call tow truck or authorities), and
disproportionate (preventing small harm to truck by significantly
damaging equipment
5. Conclusion – if any error, harmless, therefore convictions affirmed
iii. MPC s. 3.02 – “Choice of Evils” Differences from CL
a. Not limited to natural dangers
b. No imminency requirement (no temporal limitation mentioned at all)
2. Limitations
a. D must be aware of the emergency
b. D must be trying to avoid a greater harm
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 c. Assessment of relative harms a Q of fact for the jury (not based on D’s
assessment)
d. Availability of defense may be limited by statute
i. If D is reckless or negligent in bringing about the avoided
greater harm, and charged offense satisfied by negligence or
recklessness, then may be convicted
3. General Definition (Magadini) 1. Clear and imminent danger 2.
Reasonable expectation by D that D’s action will prevent danger from
being realized 3. No legally effective way to prevent danger from being
realized 4. Harm avoided > harm resulting from D’s actual conduct
a. Murder Common law rule was that necessity is never a defense to
murder, but unclear under MPC
iv. Fault in Creating the Emergency Responded to
a. E.g. P recklessly starts forest fire, burns down a house intentionally as
firebreak
2. MPC – D could be convicted of arson of home b/c recklessness sufficient
3. CL – D could be convicted of recklessly causing the original forest fire, if
criminal, but necessity permits the burning of the house to prevent the
greater harm
v. Cessation of the Emergency
1. Generally, D only has the right to violate the law until such time as the
necessity to do so ends
a. E.g. Greenwood – drunk driving to escape dangerous ex
i. Note some offenses may be ongoing (e.g. driving while
intoxicated)
B. Duress
i. Definition
1. Duress, in contrast, involves situations where D’s criminal behavior is
excused, because he was forced to commit a crime by another person
under threat (lack of a meaningful moral choice b/c of threat by a person
made with intent to force D to commit a specific offense)
ii. Contento-Pachon
a. D, a driver, told by J that J’s cartel would kill D’s wife and child if D did
not swallow balloons of coke and take them to US
b. D didn’t tell police in Bogota b/c of corruption, arrested at border
c. D denied necessity/duress jury instructions, convicted of possession
w/ intent of cocaine Issues – was D entitled to necessity or duress
instructions?
2. Duress Elements – (1) immediate threat of death/serious harm; (2) well-
grounded fear by D that threat will be carried out; (3) no reasonable

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 opportunity to escape from threatened harm Immediacy – evidence that
threats would be carried out immediately (not “vague threats of possible
future harm” Fear – well-established that D feared the J and the cartel
reasonably
3. Escapability- D argued that he didn’t go to police b/c of corruption, up to
the trier of fact to assess whether a reasonable escape was possible
4. Necessity – not available b/c aimed at situations where D acting in
interests of general welfare, not in response to a specific threat by a 3rd
party, and duress is more appropriate
5. Conclusion – reversed
a. Dissent – no immediacy b/c D and family not physically restrained
from fleeing
iii. General Definition
1. 1. D or third party threatened to be killed or grievously injured by
another person unless D commits the offense 2. D reasonably believed
threat was genuine 3. Threat was present, imminent, and impending at
time of criminal act 4. No reasonable escape from threat other than
compliance 5. No fault of D in exposing self to threat
iv. The MPC s. 2.09
1. No imminency requirement;
2. Applies not only when threats occur (or reasonably appear to have
occurred), but also as the result of prior use of unlawful force;
3. Threatened harm need not be a deadly threat—it is enough that the
unlawful force or threat of force is such that a “that a person of
reasonable firmness in his situation would have been unable to resist”;
and
4. D cannot have been reckless in placing self in situation, if negligent may
raise duress defense unless charged offense only requires negligence
Available in homicide cases.
C. Necessity v. Duress
i. Unger
a. D threatened with, then subjected to sexual assault while in
prison/minimum security farm
i. Does not report the assaults out of fear, but receives a call
threatening to kill him for snitching
b. D walks off farm, convicted of escape, argues duress
2. Issue
a. Was D entitled to necessity and/or duress instructions?
3. Rule
a. Necessity involves a choice between two evils

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 b. Duress involves a threat from a 3rd party used to compel D to commit
a specific crime
4. Analysis
a. Necessity more appropriate b/c D choosing between harms of
escaping and harms of further physical/sexual assaults
b. The threats D received were not made with any intend to compel him
to commit the crime of escape
5. Court views Lovercamp elements as persuasive factors to consider, rather
than a discrete list of elements that all must be satisfied in all cases: (1)
specific, serious threat; (2) no time to make complaint; (3) no
time/chance to use courts; (4) no evidence of force or violence; and (5)
prisoner immediately reports to authorities
a. Despite #2/5 not being fully satisfied here, court finds necessity still
available to go to jury.
D. Intoxication
i. Veach
a. D, drunk, gets in accident in national park, arrested by park rangers
b. Threatens to kill arresting rangers in drunken rage after arrest and
during transport
c. Charged with (1) assaulting officer, and (2) threatening to assault
and murder an officer with intent to impede such officer
d. D claims voluntary intoxication defense improperly excluded by trial
court Rule – voluntary intoxication may be a defense only where it
prevents the formulation of a required specific intent
2. Analysis
a. Charge 1 – assaulting officer – general intent to assault all req’d,
therefore voluntary intoxication not a potential defense
b. Charge 2 – “intent to impede” renders it a specific intent crime
3. Conclusion – charge #2 conviction rev’d and remanded
ii. Intoxication Defenses
1. Common Law
a. Self-induced intoxication never an excuse, but may serve as a “failure
of proof” defense if, due to the intoxication, D failed to form required
specific intent required
i. Note that for general intent crimes, even if D seems to lack
the capacity to form that mens rea, the assumption is that D
was reckless in becoming so drunk as to put himself in that
situation to start with
2. MPC s. 2.08

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 a. Intoxication a defense if “negatives an element” of offense 2.08(2)
operates to allow prosecutors to use evidence of voluntary
intoxication to help prove recklessness (awareness of the risk
component)
3. Involuntary Intoxication
a. May be an excuse, but requires that D non-culpably became
intoxicated (drugged, had unforeseeable reaction to medication, etc.)
and D must demonstrate that being in the intoxicated state led to the
criminal conduct.

14. INSANITY
A. The Insanity Defense - Overview Insanity as a Legal Term
i. Always remember that in the context of criminal law “insanity” and terms such
as “mental disease or defect” are terms of legal art drawn from the medical field,
but remain distinct from medical concepts such as mental health diagnoses
ii. If a defendant is declared legally insane at the time they committed the offense,
then they cannot be prosecuted
B. Insanity versus Fitness to Stand Trial
i. Fitness to stand trial relates wholly to a D’s status at the time of trial and
focuses on D’s ability to understand and participate in the
proceedings/communicate with D’s attorney
ii. Insanity is a question in relation to the time of commission solely, though D’s
present condition is invariably probative of D’s condition at the time of
commission
C. Procedural Issues
i. Some jurisdictions allow a judge to enter a not guilty by reason of insanity plea
on behalf of a defendant, others limit this pleading to the defense itself
ii. Affirmative defense – permissible for statute to place burden on D by
preponderance
iii. Plea typically must be made before trial and D must be evaluated by a neutral
expert
iv. At sentencing, D may be involuntarily committed, even if not responsible for the
crime due to insanity through civil commitment processes
v. Split in terms of whether the jury can be informed of the civil commitment
process (Hawaii permits at the request of the D)
D. Approaches to Assessing Insanity
i. Johnson
1. M’Naghten

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 a. Due to mental disease/defect D either:
i. 1. Doesn’t understand the nature/quality of D’s criminal
conduct, or
ii. 2. Doesn’t know that conduct wrong 2.
2. “Control” Test
a. D must demonstrate a complete destruction of “governing power of
the mind” to the point that D’s free will was “destroyed at the time” of
commission
b. Most applicable to sudden fits
3. “Product” of Disease/Defect Test – Durham
a. Question for jury is whether D’s charged criminal conduct was the
“product” of D’s mental disease/defect
i. Hard standard to apply (what is a product?)
4. MPC Test
a. Two alternatives, D “not responsible for criminal conduct if at the
time of such conduct as a result of mental disease or defect D lacks
substantial capacity either to”:
i. 1. “appreciate the criminality [wrongfulness] of his conduct”
or
ii. 2. “conform his conduct to the requirements of law”
E. Cognitive Approaches (E.g. M’Naghten)
i. Focus on D’s ability to understand the quality and nature of D’s conduct at the
time of commission (did D even understand what he was doing? Under D’s
understanding of reality, was D committing a crime?)
1. E.g. D delusional, firmly believes that V is a an evil killer robot – prong 1
 E.g. D hears voice of God commanding D to commit criminal act (“deific
decree) – prong 2
F. Volitional Approaches (E.g. Control test)
1. Focus on compulsion (i.e. D’s ability to control behavior). The question
here relates to whether D had the ability to control D’s own actions, even
if D understood what they were. Note that even in jurisdictions that
recognize a volitional-based insanity defense, it tends to be narrowly
circumscribed so that individuals with a general propensity for violence
or antisocial behavior cannot successfully plead insanity.
2. E.g. D has overwhelming compulsion to do act that criminal due to
condition
3. Sociopaths and Psychopaths and Volition
4. How should the criminal law deal with people who understand the
nature of their behavior and its antisocial aspects in the abstract, but
whose complete lack of ability to relate to others or feel empathy, results
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 in such understanding failing to penetrate to the affective level of their
psyche?
G. Changes in Tests for Insanity
i. After period of expansion, we are in a period of contraction in terms of the
recognition and scope of insanity defenses.
1. M’Naghten variation – 29 states Control variation available – 15 states
(including Hawaii) Product test – NH only Insanity defense abolished
altogether – 5 states (constitutionality unclear)
2. The “Trial by Label” Controversy
a. Insanity an area of law where role of experts especially
controversial/unclear
b. Goal is for a three-way dialogue b/w expert, judge, and factfinder,
with the ultimate determination of whether D legally sane or not
remaining with the jury/factfinder
c. Challenge is that criminal law prefers binaries (guilt/innocence,
sane/insane) whereas questions of cognition and volitional control
are necessarily ones of degree, except in the most extreme cases
H. Does it Even Matter?
i. Note that empirical evidence suggests that, except for very simple and clear
insanity defense instructions, jurors tend to follow their moral intuitions
concerning the culpability/sanity of Ds in their decision-making
I. Wilson
1. D believes Dirk and V had poisoned D with meth, controlled D’s mind and
the minds of others, were the cause of D’s schizophrenia and impotency,
D’s girlfriend leaving him and death of D’s mother and dogs
2. D told the police about his beliefs and concerns for months, but told they
could do nothing
3. D buys gun, goes to V’s home, gets in argument with V, shoots D in the
head and turns self in, explaining that D’s goal was to protect society
from V’s nefarious mind control plot
4. Convicted at trial of murder, appeals on grounds of improper instruction
re: insanity
ii. MPC jurisdiction, two prongs: (1) D cannot “appreciate” “wrongfulness” of
actions (cognitive prong); or (2) unable to control actions (volitional prong)
iii. Issue: for cognitive prong, is the assessment whether D appreciated his conduct
violated the law, or whether D appreciated that society would disapprove of his
conduct (i.e. it was wrongful generally)
1. Test (cognitive prong): in situations where D “substantially misperceived
reality” due to mental disease/defect, factfinder must assess whether

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 under the circumstances as D, honestly but mistakenly, believed them to
be, would society have condemned or approved of D’s actions
a. D must “sincerely believe that society would approve of his conduct if
it shared his understanding of the circumstances underlying his
actions” → not a wholly subjective approach
J. Result – conviction overturned b/c sufficient evidence for jury to conclude
that D thought society would approve of his actions
K. Two Approaches to MPC “Cognitive”
i. Prong: 1. “Legal” wrong – Does D appreciate his conduct is criminal 2. “Moral”
wrong – Does D appreciate society would view his conduct as wrong
ii. Applying the Tests: Yates D, a mother of five with long, well-documented history
of extreme mental health issues, drowns all five children in bathtub D’s beliefs
underlying killings:
iii. Saving children from bad fates, ranging from being a serial killer to tragic early
deaths
1. Agonized over decision to kill for two months +
2. That D would be executed for the killings and that Satan would be
executed along with D in the process
L. Common Law: M’Naghten
i. 1. Mental illness -✅
ii. 2. Illness causes a defect of ability to reason - ✅
iii. 3. So as D did not understand nature/quality of act -❌ (D understood that she
was killing the children, that’s all that is required), or D did not understand that
what D was doing was wrong - ?? (perhaps goes to jury to decide – did D believe
that society would approve of her conduct if it shared her (delusional)
understanding of reality?)
M. Control/Irresistible Impulse Test
i. Did D lack the capacity to conform conduct to the law due to disease/defect? –
unlikely this defense would be successful, but may go to the jury, largely
depending on how the test is articulate in the particular jurisdiction and
whether it permits for situations where a D broods over a decision and
ultimately cannot help themselves from acting. Here, it is unlikely that D was
acting with compulsion.
N. “Product” Test
i. “But-for” disease/defect, would D have committed crime? – probably excuses
b/c the mental health problems of D were clearly the driving force in the
commission of the offense
O. MPC – Cognition/Volition Prongs Cognitional

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 i. Approach A – lawfulness/criminality - ❌ (D knew it was criminal and did not
think she had any legal excuse – thought she would be executed)
ii. Cognitional Approach B – wrongfulness - ?? (similar to M’Naghten assessment)
P. Volitional Approach – Weaker, but might go to the jury
i. Trial 1 – 10-2 split guilty versus insane, then 12-0 guilty Successful appeal on
other grounds
ii. Trial 2 – 12-0 verdict of insanity (juror: “We understand that she knew it was
legally wrong. But in her delusional mind, we believed that she thought what she
did was right.”) What is wrong with the approach suggested by the quote from
the juror?
Q. Infancy In re Devon T
i. D, nearly 14, found with 20 bags of heroin in his bag at school, charged w/
possession w/ intent to distribute and found “delinquent” (guilty)
R. Common Law Rules – Infancy, Age and Criminal Capacity
1. Note that rules relate solely to whether D has legal capacity to commit
the offense, not whether D will be prosecuted in adult courts, as adult, or
results of conviction/location of any custodial sentence 0-7 = no criminal
responsibility 7-14 = rebuttable presumption of criminal incapacity 14+ =
full responsibility Here, D b/w 7 and 14, but near 14, so presumption of
incapacity engaged, but is relatively weak due to nearness to 14
ii. Question, re: capacity, is does D have the ability to distinguish between right and
wrong at the time of the commission of the offense
iii. Factors: age, reasoning ability (schooling, etc.), ability to understand
proceedings and communicate with lawyer, nature of commission
a. Here, D nearly 14, was selling, not using drugs, refused to cooperate,
passed 6th grade (though held back 1 year) and so ample evidence to
overcome (weak) presumption of incapacity due to age
iv. Generally – there is a trend toward prosecuting juveniles as adults and even
housing some in adult prisons (often in the SHU), which can be extremely
damaging 8th Amendment bars sentences of life without the possibility of
parole for Ds convicted of nonhomicide offenses when D was under 18 at the
time of commission
S. Other Potential Defenses
i. Euthanasia (“mercy killing”) – E.g. Forrest, Keeler
ii. Killings where D makes choices without V’s input that it is better for V to die
1. Not a defense in USA, but may mitigate at sentencing Assisted Suicide
2. Most states continue to prohibit in all cases
iii. Trend toward allowing limited exception for doctor-assisted suicide for certain
classes of people with chronic, untreatable conditions Cultural Practices Defense

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 1. Argued for in situations where D’s cultural practices conflict with the
criminal law
2. E.g. (see here for more)– “coining” a child for a headache, rubbing pepper
on an abrasion as a form of disciplining a child, parent-child suicide, self-
defense against witchcraft.
a. Not currently recognized as an excuse defense, but often plays a role
in sentencing
T. “Rotten Social Background” (RSB) Defense
i. Proposed defense focusing on the specific background of D, to contextualize
their culpability (socioeconomic deprivation, childhood environment, etc.)
U. Conceptual derivative of insanity defense – inability to conform
1. Anderson – Black D shoots/kills a white Marine in a bar after Marine calls
him a “Black Bastard” (D was poor, from Watts, subjected to racism and
learned to fear/hate white people)
V. Not recognized anywhere officially
W. Inverse: “Affluenza” or “Spoiled Rotten Social Background” (see here) –
e.g. Lindsey Lohan, Charlie

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