Criminal law: Professor Cunningham 2010

Policies behind Criminal Law:

I. Utilitarian Purposes of Punishment: believes that justification of punishment lies in the

useful purposes that the punishment serves. Since punishment involves pain, it can only be
justified only if it is accomplishes enough good consequences to outweigh this harm. Ways
that punishment can be justified is if it serves:
1. General Deterrence: is the knowledge that punishment will follow crime deters
people from committing crimes, thus reducing future violations of right and the
unhappiness and insecurity they would cause. That is, D is punished in order to
convince the general community to forgo criminal conduct in the future. D’s
punishment serves as an object lesson to the rest of the community. D’s punishment
teaches what conduct is impermissible; it instills fear of punishment in would to be
violators of the law.
2. Specific Deterrence: is meant to deter future misconduct by the defendant himself
3. Incapacitation: there is specific deterrence by incapacitating D. D’s imprisonment
prevents him from committing crimes outside society during the period of
segregation and second upon release, there is the intimidation deterrence that
reminds D that if he returns to a life of crime, he will experience more pain.
4. Rehabilitation: involves using positive steps to alter basic character or improve
skills, in order to make the offenders less antisocial. By educating the offenders , it
can lead to legitimate employment that will attract the offenders than criminal
endeavours.

II. Retributivist : All guilty persons should be punished, not because their punishment will
reduce future crime, but rather because they need to be / deserve to be punished
a. Positive Retributivist: always punish the guilty; don’t take it “easy” on them
i. Sends symbolic message: provides general deterrence to a degree
ii. Protective: criminals have right to be punished, restoring moral equilibrium
btw criminal and greater society
iii. Victim-oriented: reaffirms the value of victim and restores equilibrium
between criminal and victim

BASICS
 Burden of Proof in a Crim Case: beyond a reasonable doubt
o this standard is very high, b/c the consequences are very high.
o versus civil = preponderance of the evidence (50+1%)
 Verdict in a crim case = guilty or not guilty (there is no innocence here)
 In any crime the prosecution has to prove:
1. Someone committed a crime AND
2. That D actually did it
 Every crime has
1. A mental state (mens rea) AND
a. Intent
b. Reckless
c. Strict liability
2. An act (actus reus) AND
3. Causation
a. But-for AND
b. Proximate cause
 Criminal law: Professor Cunningham 2010
4. Example: killing someone + intent to kill + causation = homicide
i. (actus reus) + (mens rea) + causation

 Felony v. Misdemeanor
o Misdemeanor is less serious than a felony
o If max punishment is 1 year or less than it is a misdemeanor
o If max punishment is for 1 year or more then it is a felony

MENS REA – Handout

COMMON LAW (4 mental states)
1) Specific Crime / Specific Intent
a) Crime requires the desire to do the act and requires the desire to achieve a
particular result.
b) 11 Specific intent crimes:
i) Assault
ii) Murder – 1st degree (intent to kill . . .)
iii) Larceny
iv) Embezzlement
v) False Pretenses
vi) Forgery
vii)Burglary
viii) Robbery
ix) Solicitation
x) Conspiracy
xi) Attempt
2) Malice
a) When D intentionally or with reckless disregard of an obvious known risk
b) Common law malice crimes
i) Arson
ii) Murder – 2nd degree
3) General Intent
a) D need only be generally aware of the factors constituting the crime; he need not
intend a specific result.
i) (Jury infers general intent simply from the doing of the act)
b) Examples of GI crimes
i) Battery, False imprisonment, Kidnapping, Forceable rape. (All crimes against the
person)
4) Strict Liability
a) When the crime requires simply doing the act; no mental state is needed
b) 2 types of strict liability crimes
i) Public welfare crimes: regulatory or morality offenses that typically carry small
penalties. Examples:
(1) Selling alcohol to a minor
(2) Selling contaminated food
(3) Corrupting the morals of a minor
 Criminal law: Professor Cunningham 2010
ii) Statutory rape: having sex with someone who is under the age of consent.

MODEL PENAL CODE (5 mental states)

1) Intentionally (purposely): when it is the D’s conscious object to accomplish a
particular result.
a) (in other words, that is what the D mean to do)
2) Knowingly: when the D is aware of what he is doing.
3) Recklessly: when the D is aware of a substantial and unjustifiable risk and consciously
disregards that risk
4) Negligently: when D should have known about a substantial and unjustifiable risk.
5) Strict Liability: no mental state required (similar to common law)

 These are the mental states adopted by NY

INTENT / MENS REA

 Every crime required intent or particular mental state(mens rea)
 Mental state (for intent/mens rea) of the D is inferred from the circumstances unless you have
an actual statement from a person.
 People v. Du: this case is all about “why.” The jury found that she meant to pull the trigger. But
the problem is that we don’t really know what Du’s intent was.
 You just have to intend the act, NOT the consequence (pg 26 p.1 2 nd half)
o Intend means simply a purpose or willingness to commit the act.
 There are generally 3 classifications of Mens Rea
o Intent
 General intent: intending the action (and not necessarily the result or intent to
break the law)
 Specific intent
o Recklessness
o Strict Liability

ACTUS REUS handout

(COMMON LAW?) ASK
 Ordinarily if you don’t have an act you don’t have a crime
 Act = a voluntary bodily movement
o Voluntary = of own brain sending signal to your body.
 Examples of non-acts
o Sleepwalking or any unconscious movement
o Reflex or convulsion (ex: epileptic seizures)
o Someone else who moves the D (D acting as a missile)
 Omissions Rule: sometimes a failure to act can be the basis for criminal liability
o There are three requirements (and you need all three)
 First, you need a legal duty to act which can be created in 5 different ways
 By statute:
o ex. Filing tax returns, professionals reporting child abuse
 Criminal law: Professor Cunningham 2010
 By contract/job:
o ex. Babysitter, doctor, lifeguard
 By status relationship
o Only 2 examples: (parent-child) and (spouse-spouse)
 Voluntary assumption of care
o ex. If D starts rescuing victim, D has a duty to continue helping
 By creation of peril
o ex. if D caused the problem in the first place, D has duty to help
the victim (kid hit by car)
 Second, you need knowledge of the facts fiving rise to the duty, AND
 Third, you need the ability to help
 ex. your kid drowning at beach but you can swim. But you can help in
other ways – get lifeguard, call 911, etc

MPC §201 (Acuts Reus)

 A person is not guilty of an offense unless his liability is based on the conduct that includes a
voluntary act or the omission to perform an act of that he is physically capable.
 The following are not voluntary acts within the meaning of this Section
o A reflex or convulsion
o A bodily movement during unconsciousness or sleep;
o Conduct during hypnosis or resulting from hypnotic suggestion;
o A bodily movement that otherwise is not a product of the effort or determination of the
actor, either conscious or habitual.
 Liability for the commission of an offense may not be based on an omission unaccompanied by
action unless:
o The omission is expressly made sufficient by the law defining the offense; or
o A duty to perform the omitted act is otherwise imposed by law.
 Possession is an act, within the meaning of this Section, if the possessor knowingly procured or
received the thing possessed or was aware of his control thereof for a sufficient period to have
been able to terminate his possession.

NY PENAL LAW
 §15.00: DEFINITIONS
o (1)”Act means” bodily movement
o (2)”Voluntary act” means a bodily movement performed consciously as a result of effort
or determination, and includes the possession of property if the actor was aware fo his
physical possession or control thereof for a sufficient period to have been able to
terminate it.
o (3)”Omission” means a failure to perform an act as to which a duty of performance is
imposed by law
o (5) “To act” means either to perform an act or omit to perform an act
 §15.10: Requirements for criminal liability (general/strict liability/mental culpability)
o The minimal requirement for criminal liability is the performance by a person of
conduct which includes a voluntary act or the omission to performance an act which his
physically capable of performing. If such conduct is all that is required for commission
of a particular offense, or if an offense or some material element thereof does not
 Criminal law: Professor Cunningham 2010
require a culpable mental state on the part of the act, such offense is one of “strict
liability.” If a culpable mental state on the part of the actor is required with respect to
every material element of an offense, such offense is one of “mental culpability.”

I. Mistaken of Fact/Law.
a. Basic Rule: Ignorance or mistaken of fact or law is a defense when it negates the
existence of a mental state essential to the crime charged. CL
Mistaken of Fact: is a defense b/c
An actor who is mistaken about a fact lacks probably lacks the “mens rea” the intent to commit a
crime. In a sense A mistaken of fact negates the actor’s mens rea for the crime charged.
People v. Obrien: D changed and forged his name on a deed and later reported on
himself. The ct held that to constitute a crime, there must be a union of act and intent.
Here, the court ruled that criminal intent is the intent to do the prohibited act, not
the intent to violate the law. it does not seem to be intent to commit the crime. Case
remanded.
Mistake of Law: is not a defense
People v. Snyder: D was charged with possession of firearms by a felon. D claimed she
was not aware that she was a felon b/c she relied on her lawyer’s advice that she is not
a felonThe court held that her belief is mistake of the law and that such mistake is not
a defense because D did not do anything to find out if she was a felon.
Bray Exception: Mistake of the law will be a defense (Bray exception): if the information which
D relied on is an affirmative assurance that the conduct giving rise to the conviction is lawful.
 As to the source of the information, it must be established that the information was
received from a “government official”--- such as public officer or body charged by the
law with the responsibility for defining permissible conduct with respect to the
offense at issue. See Miller v. Commonwealth, pp. 32-33
o Private attorney bot government official; private firearms dealer licensed by govt
not govt official; firearms licensee not govt official.

MODEL PENAL CODE:§ 2.04. Ignorance or Mistake.

(1) Ignorance or mistake as to a matter of fact or law is a defense if:
(a) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or
negligence required to establish a material element of the offense; or
(b) the law provides that the state of mind established by such ignorance or mistake
constitutes a defense.
(3) A belief that conduct does not legally constitute an offense is a defense to a
prosecution for that offense based upon such conduct when:
(a) the statute or other enactment defining the offense is not known to the actor
and has not been published or otherwise reasonably made available prior to the conduct
alleged; or
(b) he acts in reasonable reliance upon an official statement of the law, afterward
determined to be invalid or erroneous, contained in (i) a statute or other enactment; (ii) a
judicial decision, opinion or judgment; (iii) an administrative order or grant of permission;
or (iv) an official interpretation of the public officer or body charged by law with
responsibility for the interpretation, administration or enforcement of the law defining the
offense. Bray Exception.
 Criminal law: Professor Cunningham 2010

Strict Liability Offenses;

1. The mistaken of fact rule for strict liability crimes is straightforward: under no
circumstances does a person’s mistake of fact negate his criminal responsibility for violating
a SL offenses. For example, D drives above the speed limit and injure someone even though
his speedometer was faulty.
Specific Intent Offenses:
1. An actor is not guilty of an offense if his mistake of fact negates the specific intent portion of
the crime, i.e., if he lacks the intent required in the definition of the crime.
General Intent Offenses:
1. A person is not guilty of a general intent crime if his mistake of fact was reasonable, but he
is guilty if his mistake was unreasonable. For example, if D has nonconsensual intercourse
with V, whom he incorrectly believes is consenting to the sexual intercourse. If his mistake
is regarding Vs consent is reasonable, then he is not guilty.

Rule of Lenity, 5.00:

1. Criminal statutes must be strictly construed except NY has done away with that.
a. PRINT OUT IN SUPPLEMENT 15.00(1)(2)(3)(5), 15.10
 Criminal law: Professor Cunningham 2010

Larceny: is a property crime; it protects a person’s interest in PP.

1. CL: Larceny at common law is the (1) trespassory (unlawful/wrongful); (2) taking
(physically); (3) carrying away (asportation); (4) of the property; (5) of another; (6) with
the intent to steal it.
§ 155.05 Larceny; defined. NY Penal Law
1. A person steals property and commits larceny when (1)with intent to deprive (4) another) of
property or to appropriate the same to himself or to a third person; (2) he wrongfully takes,
obtains or withholds such; (3) property from an owner thereof.
2. Larceny includes a wrongful taking, obtaining or withholding of another's property, with the
intent prescribed in subdivision one of this section, committed in any of the following ways:
(a) By conduct heretofore defined or known as common law larceny by trespassory taking,
common law larceny by trick, embezzlement, or obtaining property by false pretenses;
(d) By false promise.
Terms:
§ 155.00 Larceny; definitions of terms. SEE MPC IN THE BACK.
People v. Alamo: Goes to the taking element; D was spotted by police officer behind the wheel
of a car on the street; D was unable to provide identification; there was evidence that the car had
inched toward the road. The court held that under NY penal law, the element of asportation
under common law is no longer an essential element of taking or Obtaining. The court held
that asportation is not a requirement to charge larceny, all which is required is the intent to
deprive another. CASE LAW.
o Movement of the object (asportation) shows evidence of Ds intent to exercise
control or dominion
People v. Olivo: D was observed crouching down and taking wrenches and stuffing it in his
clother and then passed the cash register towards the exit )shoplifting).
Evolution of larceny: rules that came out of this case:
 Goods entrusted to an employee were not deemed to be in his possession,
but were only considered to be in his custody, so long as he remained on the
employer’s premises.
 With self service store, a shop owner retains legal possession of
merchandise being examined by a prospective customer in that the
customer has granted limited possession to the customer but
 If the customer exercises dominion and control wholly
inconsistent with the continued rights of the owner, and other
element of larceny is present, a larceny has occurred.
o Conduct wholly inconsistent are:
 D concealed the goods under clothing or in a
container;
 D surveys the area while secreting the merchandise,
 Abandoned his or her own property in exchange for
the concealed goods;
 Customer’s proximity to or movement towards one of
the store’s exits
 Possession of shoplifting device actually used to
conceal merchandise. See People v. Olivo.
 A shoplifter may not leave the store to be guilty of larceny.
 Concurrence of mens rea (intent to steal) and Actus Rea (stole)
1. A larceny does not occur unless the actor possesses the intent to steal the
property at the moment of commission of the actus rea of larceny.
 Criminal law: Professor Cunningham 2010
a. For example, D walked into a store with the intent of buying a can of
tuna, D looked at the can and saw he could not afford the price, he
decided to steal it instead and, put it in his pocket? LARCENY?
i. No b/c D did not have the intent to steal the tuna can when he
took possession. There was no concurrence b/w intent and
taking.
 Continuing-Trespass Doctrine
o When a person takes the possession of another person’s property by
trespassory taking, although he had no intention of depriving the other
person of the property permanently, every moment D retains possession of
the property is continues until he does form the intent to steal it.
Modern-trend of larceny does not require prove of asportation. Asportstion is evidence of
taking which shows that D exercise dominion and control wholly inconsistent with the continue
rights of the owner. Element of larceny are:
1. Wrongful taking
a. Dominion and control wholly inconsistent with the
continue rights of the owner.
b. Asportation as mere evidence of taking
2. Of property
3. Of another
4. With the intent to: 3 types of intent
1. Intent to deprive permanently;
2. Intent to deprive temporarily so that the economic
value is lost; OR
3. Intent to abandon
1. JOYRIDING- hypo:
People v. Jennings: D a money counter and holder used one of his
customer’s money to invest while he was holding it to be deliver later.
1. The court ruled that this is a joyriding case statint that:
a. An intent to temporarily borrow and use someone else
property without permission cannot support the
conviction of larceny.
b. Section 223.9 – is joyriding statute under the model
penal code p. 786.
 Criminal law: Professor Cunningham 2010

Embezzlement: is not a common law crime rather it is a statutory one. General Intent
I. Embezzlement is the (1) Fraudulent; (2) conversion of; (3) the property; (4) of another (5)
by one who is already in lawful possession of it.
a. Differences b/w larceny and embezzlement are:
i. Larceny is a trespassory taking of the property while
ii. Embezzlement comes from lawful possession of the taker and is fraudulently
or unlawfully appropriated by him
iii. Pg 563 understanding criminal law book for other differences not discussed
in class.
USC 18, Section 654;PP 72
Whoever, being an officer or employee of the United States or of any department or agency
thereof, embezzles or wrongfully converts to his own use the money or property of another which
comes into his possession or under his control in the execution of such office or employment, or
under color or claim of authority as such officer or employee, shall be fined under this title or
not more than the value of the money and property thus embezzled or converted,
whichever is greater, or imprisoned not more than ten years, or both; but if the sum embezzled is
$1,000 or less, he shall be fined under this title or imprisoned not more than one year, or both.

U.S v. Titus: D works at the military PX, stole cigarettes to sell out of base but with the
intent to return the money. The court held that the fact that he had the intent to
return the equivalent amount of money back to the register was irrelevant.
Govt of Virgin Islands v. Leonard: D was put in charged of office inventories, on nine
time he stole some chicken wire and sold it to the firshermen. He took the keys from
where it was kept and he later burnt down the building to cover its tracks. The ourt
held that:
2. A person is guilty of embezzlement if he fraudulently appropriates the
property which he has possession or under his control by virtue of trust
with the intent to appropriate it.
 Special Trust +Taking ( from own custody of care)= Embezzlement
 No special trust + taking = larceny
 Mere access to the property is not enough
U.S. v. Whitlock: D was the bank manager and stole money from the vault, he knew
where the keys was. The court held that D had special trust and thus embezzled. D had
more mere access
U.S v. Selwyn: D worked at the post office as maintenance control clerk, D stole while
in the loading dock a package that belongs to a customer and tried to return it the
store. The court held that D had access to the dress but he was not entrusted to it by
virtue of special trust.
3. A person who lied to secure property from another obtains mere custody of
the property. Consequently, the subsequent appropriation of the property,
which constitutes a trespassory taking of the possession, renders the
fraudulent taking by the actor guilty by Larceny by trick.
4. An employee (bank teller) who receives property for his employer from a third
person (customer) ordinarily receives possession of the property. Therefore, if he
later decides to covert the property, he is guilty of embezzlement. See pg. 563:
UCL.
 Criminal law: Professor Cunningham 2010

False Pretenses: is the fraudulent inducement of title from victim through false
misrepresentation.
1. The crime of False Pretenses has five elements which are (1) false representation of past or
present fact (2) knowledge of falsity (3) intent to defraud (4) reliance by the victim
(materially) (5) obtaining title to property.
2. The difference b/w larceny and false pretenses is that D who uses trickery to secure title
and not possession is guilty of false pretenses while one who merely secures possession
through fraud is guilty of larceny by trick.
a. The Chaplin case on p.91 stated that Future false promise cannot constitute the
crime of false pretenses. Minority Rule
i. A false pretense, under the statute must be related to a past event or existing
fact. Any representation with regard to future transaction is excluded.
b. However, the majority rule (dissent) is that Future promise can constitute the
crime of false pretenses.
i. The MPC adopts this view, but the evidence has to be more than the
defendant did not perform the contract. The prosecution has to show that
the defendant intended not to perform at the time the contract was
made.
Consolidated theft statute: allows the prosecution to charges the crime of theft under the
theory that includes larceny, embezzlement and false pretenses
DC Code 22-3811
 A person commits the offense of theft if that person wrongfully obtains or uses the
property of another with the intent to:
1. To deprive the other of the right to the property or a benefit of the property;
or
2. To appropriate the property to his or her own use of a third person
MODEL PENAL CODE: 223.0 – 4. 7-9. SEE SUPPLEMENT ON EXAM.
 Criminal law: Professor Cunningham 2010

Robbery:
1. Robbery under common law includes
(1) trespassory (unlawful/wrongful);
(2) taking (physically);
(3) carrying away (asportation); Larceny
(4) of the property; (5) of another;
(6) with the intent to steal it.
+
1. Force OR Threat of force
2. From person or immediate presence

Pennsylvania Robbery statute

Theft + any of the factors listed below = Robbery
1. Inflicts serious bodily injury
2. Threatens OR intentionally puts in fear of immediate serious bodily injury
3. Commits or threatens to commits a felony (1 or 2 degree)
4. Inflicts bodily injury or threatens another with or intentionally puts him in fear of bodily
injury- felony 4
5. Physically takes or removes property from the person by force however slight – felony 3--
Classic robbery situation/common law definition

Robbery MPC 221.1

A person is guilty of robbery if in the course of committing a theft he:
1. Inflicts serious bodily injury upon another or;
2. Threatens another with or purposefully puts him in fear of immediate
serious bodily injury; or
3. Commits or threatens immediately to commit any felony of the first or
second degree
An act shall be deemed “in the course of committing a theft” if it occurs in an
attempt to commit a theft or in flight after the attempt or commission
1. Grading: Robbery is a felony of the second degree, except that it is a felony
of the first degree if in the course of committing the theft the actor attempts
to kill anyone, or purposely inflicts or attempts to inflict serious bodily
injury.
Case Law:
Commonwealth v. Brown: D snatched the purse of V and ran away with it. The court held that:
Force/threat of force:
1. The court held that the amount of force is relevant when grading the offense
as first, second, or third degree. Force is an element of Robbery, without
force there cannot not be robbery just larceny.
2. Two types of force:
a. Actual force- is applied to the body
b. Constructive force is the use of threatening words or gestures
3. Therefore, Force- requires the victim must be aware of the property
been taken
a. Majority Rule: Force or threat of force must be contemporaneous or
precede taking.
 Criminal law: Professor Cunningham 2010
b. Minority Rule: Robbery even if force/ threat used during escape or
to retain property
i. See also State v. Holley
Commonwealth v. English: D was arguing with the deceased over $10, D punch V in the face so hard
that V hits his head on the pavement and died. D then went through Vs pocket and removed his wallet.
The court held that:
Claim of right:
1. Minority rule: claim of right is not a defense to either larceny or robbery
because of public concerns.
a. Reason been a person who has adequate remedy at law should not
be allow to the law into his own hand.
2. Majority Rule: Claim of right negates intent to steal, therefore no theft.
a. Not guilty of larceny or robbery
b. But the property taken must be of the same property given, not
equivalent/ cash. also commonwealth v. Sleighter
Commonwealth v. Rozplochi: D held two employees at gunpoint at a food
store, although what was stolen belongs to their employer. The court held
that:
1. Where only one person is threatened, only one robbery has
occurs even if the D makes off with goods that belongs to two
owners. However, where more than one person is
threatened, more than one robbery has occur even if the D
makes of with goods that belongs to only one owner
2. Where a D threatens to inflict serious bodily injury on
two employees in other to effectuate a theft of property
from a common employer, the defendant may be
convicted of two counts of robbbey.
 Criminal law: Professor Cunningham 2010

Burglary:
1. Burglary at CL is the (1) breaking and (2)entering (3) of the dwelling house of another in
the (4) nighttime (5) with the intent to commit a felony
2. MPC 221.1, Burglary is the (1) entering (2) a building or occupied structure (3) with the
intent to commit a crime unless (1) the premises is open to the public (2) D is
licensed/privileged to enter and (3) the building or structured was abandoned.
a. Grading: Burglary is felony in 2nd degree if it is perpetrated in the dwelling of
another at night, or if in the course of committing the offense
i. Purposely, knowingly or recklessly inflicts or attempts to inflict bodily injury
on anyone; or
ii. Is armed with explosives or deadly weapon.
iii. See MPC for rest of language
3. Case law:
Regina v. Collins: D used a ladder to enter a girl’s room and had sexual intercourse with her. It
was disputed whether the woman signaled him to come inside or he was inside before she
signal him to have sexual intercourse with her. The court held that:
1. A person is guilty of burglary only if he enters the premises of another
knowing he is a trespasser, or at the very least is reckless as to whether or
not he trespass and with the intent to commit a crime.
2. If the defendant forms the intent to commit the crime after the trespass is
under way, he or she may be guilty of that underlying crime (or attempt)
and of trespass -----but is not guilty of burglary. Burglary is the crime
that requires that the defendant have a criminal intent to do more than
just trespass.
Regina v. Jones: Ds went into is father’s house and took two television. D claimed is father
gave him permission to enter the premise and take the tv. The court held that
1. A person is a trespasser if he enters premises of another knowing that he
is entering in excess of the permission that has been granted to him, or
being reckless whether he is entering in excess of the permission that has
been given to him to enter, providing the facts are known to the accused
which enable him to realize that he is acting in excess of the permission
given or that he is acting recklessly as to whether he exceeds that
permission.
2. Put simply, a person is guilty of burglary if he exceeded his invitation because he
entered or cross the threshold of the entry by exceeding that permission.
People v. Salemme: D entered the home of V for the purpose of selling him fraudulent
securities. The court held that:
1. the court held that B is a breach of the occupant’s possessory rights, a
person who enters a structure with the intent to commit a felony is guilty
of burglary except when he or she:
1. has an unconditional possessory right to enter as the occupant of the
structure or
2. is invited in by the occupant who knows and endorses the felonious
intent.
Claim of right:
1. Minority rule: claim of right is not a defense to either larceny or robbery
because of public concerns.
a. Reason been a person who has adequate remedy at law should not
be allow to the law into his own hand.
 Criminal law: Professor Cunningham 2010
2. Majority Rule: Claim of right negates intent to steal, therefore no theft.
a. Not guilty of larceny or robbery
b. But the property taken must be of the same property given, not
equivalent/ cash.
 Criminal law: Professor Cunningham 2010

Rape
1. Proof required in every rape is
a. A crime was committed
b. Defendant was the one who committed it.
i. Rape is an objective and subjective standard.
Maryland Rape statute in 1st degree
3-303(a) A person may not:
(1) engage in (1) vaginal intercourse with another (2) by force, or the threat of force, (3)
without the consent of the other; and
(2)(i) employ or display a dangerous weapon, or a physical object that the victim reasonably
believes is a dangerous weapon;
(ii) suffocate, strangle, disfigure, or inflict serious physical injury on the victim or
another in the course of committing the crime;
(iii) threaten, or place the victim in fear, that the victim, or an individual known to
the victim, imminently will be subject to death, suffocation, strangulation,
disfigurement, serious physical injury, or kidnapping;
(iv) commit the crime while aided and abetted by another; or
(v) commit the crime in connection with a burglary in the first, second, or third
degree.
3-304: Rape in 2nd degree
(a) A person may not engage in vaginal intercourse with another:
(1) by force, or the threat of force, without the consent of the other;
(2) if the victim is a mentally defective individual, a mentally incapacitated individual, or a
physically helpless individual, and the person performing the act knows or reasonably should know
that the victim is a mentally defective individual, a mentally incapacitated individual, or a physically
helpless individual; Force not required or
(3) if the victim is under the age of 14 years, and the person performing the act is at least 4 years
older than the victim. No force required

MPC § 213.1. Rape and Related Offenses.

(1) Rape. 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
(b) he has substantially impaired her power to appraise or control her conduct by
administering or employing without her knowledge drugs, intoxicants or other means for the
purpose of preventing resistance; or
(c) the female is unconscious; or
(d) the female is less than 10 years old.
Rape is a felony of the second degree unless (i) in the course thereof the actor
inflicts serious bodily injury upon anyone, or (ii) the victim was not a voluntary
social companion of the actor upon the occasion of the crime and had not
previously permitted him sexual liberties, in which cases the offense is a felony of
the first degree. SEE TEXTBOOKS FOR OTHER TEXTS.

Case Law: Generally, where there is lack of consent, but no showing of force, a forcible rape
conviction is inappropriate:
There two types of force;
1. Actual Force: physical force
a. Victim must resist.
 Criminal law: Professor Cunningham 2010
i. How much force is required?
1. The victim who is conscious and possessed of her
natural, mental and physical powers when the attack
Goldberg v. state: D was a student who took place must have resisted to the extent of her
lied about his occupation to a girl. He ability at the time, unless she was overcome by
took her to a place in which they had numbers or was so terrified by the threats as to
overcome her will to resist such as
sexual intercourse. Girl stated D
a. Fear of death or serious bodily harm
removed her clothes and kept smooth b. Fear so extreme as to preclude resistance
talking to her. She said no and tries tp c. Fear which would render her mind incapable
pull her legs together. The court stated of continuing to resist
that resistance must involve more than d. Fear that so overpowers her that she does not
mere verbal rather it must be physical dare resist.
2. Verbal resistance is not enough
resistance to the extent of her ability. 3. The resistance must occur before the intercourse
4. The resistance must be overcome by force.
2. Constructive Force: Threat of force, i.e., the use of a gun
a. Resistance is not required
Conduct or words can b. Victim is prevented from resisting by threat – a defense to safety
convey threat. State v. c. Must be fear of death or serious bodily injury
Rusk d. Reasonable person standard/Subjective
i. you would do a subjective analysis-- was V
afraid/threatened?
ii. then apply it objectively- a RPP would fell threatened-
correct?
1. Yes. There has to be both a subjective and objective
fear that is caused by some action of the defendant.

Consent:
1. Consent negates rape, even if reluctantly given
2. Consent can be withdraw, however (modern rule)

Threat by D
Ff
Force by D
OR
Resistance by V Fear by V Resistance
excused
 Criminal law: Professor Cunningham 2010

Murder and Involuntary Manslaughter

Homicide is the “unlawful killing of human being”.
I. Murder can be proven under these four elements:
1. Intent to kill
a. The presumption rule is that when someone uses a deadly weapon, there is
intent to kill.
b. Intent can be shown through:
i. Statements made by the defendant
ii. Planning of the attack
iii. Relentless of the attack
iv. Disparity b/w size
v. Motive – prosecution will never have to prove motive b/c it is
evidence of intent to kill
vi. Brutality of the attack
2. Intent to inflict serious bodily injury
a. Injuries that involves serious impairment of physical condition. If a
person goes to the hospital (more than one night stay) for fractures to
bones, cut gaps requiring stitches to the head, broken rib, serious bodily
disfigurement.
3. Depraved indifference; or
a. To constitute DP, the act must be one which involve something more serious
than mere recklessness alone…there must be a knowing doing of an
uncalled-for act in callous disregard of its likely harmful effect on a victim,
which is so heinous as to be equivalent to a “specific intent to kill”.
i. In evaluating conduct resulting in death and alleged to be DP:
1. The social utility of the defendant’s conduct***
2. The magnitude of the risk
3. D’s knowledge of the risk
4. Any precautions taken by the defendant to minimize the risk
4. Felony murder – For a defendant to be guilty under this doctrine, the act of
killing must be committed by the defendant or by his accomplice acting in
furtherance of their common design. See People v. Washington. The killing itself
must be done by the defendant or its accomplice
a. Policy: The purpose of felony-murder rule is to deter felons from killing
negligently or accidentally by holding them strictly liable for the killings they
commit ¬----Utilitarian.
b. Felony murder occurs usually when a person commits or attempt to
commits
c. if felony murder one of the crime listed below, it is murder in the 1st
degree.

i. Burgalry
ii. Robbery
iii. In furtherance of a crime
iv. arson
v. Kidnapping
 Criminal law: Professor Cunningham 2010
vi. Rape
d. Felony Murder ascribes malice aforethought to the felon who kills in the
perpetration of an inherently dangerous felony.
i. Element includes: Felony, Kills, Perpetration, Inherently
dangerous.
e. Felony murder is a strict liability concept
i. Taylor v. Sup. Ct: should D be liable for killing that occurred not by
him or his accomplice while they were resisting arrest, the cop did
the killing?
1. The court held that a D who initiates a gun battles may be
found guilty of murder if their victims resist and kill one of
the defendant or the police shot an innocence bystander.
2. Gun Battle Exception:
a. When D or A with conscious disregard for life
intentionally commits an act that is likely to cause
death and his victim or PO kills in a reasonable
response to such an act the D is guilty of murder
under the Depraved Indifference theory.
b. However, the court also stated that a gun battle can
be initiated by acts of provocation falling short of
firing the first shot.
f. A robbery is still in commission if the defendants have not reach a
place of temporary safety OR there is still scrambling possession.
i. This is an Objective Standard
ii. People v. Salas: D robbed a bar, got into a car, the robbery was
reported, cop noticed the car, stopped them, as he walked to the car,
he was shot. The court held that D has not reached their place of
temporary safety, so the robbery is still continuous.
g. Some felony that are “inherently dangerous” to human life but not listed
within the statutes are considered felony murder such as poisoning of food
or drinks. See People v. Phillips and People v. Burroughs; also see
understanding criminal law p. 519: California 189, PG 184
i. POLICY P.22
ii. If the felony-murder is one of the one listed
iii. People v. Phillips: D a doctor misrepresented to V that he can cure
their child’s cancer w/o surgery. The court held
1. There are felonies which are exclusive of those not
enumerated in the statutes are been felony-murder but if
done, are inherently dangerous to human life.
a. In those case, we have to look to the element of
the felony in the abstract, not the particular facts
of the case.
iv. Limitations in applying Felony Murder to Unremunerated
felony:
1. The felony must be inherently dangerous (means high
probability that death will result
2. The killing must be committed by one of the defendant
v. Examples of not inherently dangerous to human life:
1. Practicing medicine w/o a license
 Criminal law: Professor Cunningham 2010
2. False imprisonment
3. Possession of a concealable firearm by an ex-felon
4. Escape from a city or county penal facility
5. Grand theft by false pretenses
6. Conspiracy to possess methedrine w/o a prescription
7. Grand theft person
8. Possession of a concealable weapon by an alien. See People v.
Burrough.
II. Manslaughter
a. Involuntary Manslaughter – Is when defendant knew his conduct or the
circumstances surrounding his conduct created a grave risk of death to another
(mens rea) and the defendant engaged in conduct which created a grave risk of
death to another and the conduct resulted in death of another (actus reus)
i. Utah Criminal Code: Manslaughter 76-5-205
1. Criminal homicide constitutes manslaughter if the actor
a. Recklessly cause the death of another.
Involuntary falls under two categories: NY Penal Law 15.05
1. Recklessness - A person acts recklessly…when he is aware of and consciously
disregards a substantial and unjustifiable risk that such result will occur or that such
circumstance exists. The risk must be of such nature and degree that disregard thereof
constitutes a gross deviation from the standard of conduct that a reasonable person
would observe in the situation. A person who creates such a risk but is unaware thereof
solely by reason of voluntary intoxication also acts recklessly with respect thereto.
2. Criminal negligence." A person acts with criminal negligence…when he fails to
perceive a substantial and unjustifiable risk that such result will occur or that such
circumstance exists. The risk must be of such nature and degree that the failure to
perceive it constitutes a gross deviation from the standard of care that a reasonable
person would observe in the situation.
3. SEE MPC 210.3-210.4

b. Voluntary – is killing that occur in the heat of passion or upon a sudden quarrel.
i. Element:
1. There must be reasonable provocation
2. The defendant must been in fact provoked
3. Reasonable person so provoke would not have cooled off in the
interval time b/w provocation and the delivery of the fatal blow
4. Defendant must in fact not have cooled off.
State v. Nevares: D was dumped by V, they had an argument in front of V store, D left,
came back with a letter, V came out and they again got in an argument, D went to the
car, grab a shotgun and shot V. The court held that:
1. Mere sudden anger or heat of passion will not reduce the killing to VM
unless the sudden anger or heat of passion and adequate provocation
occur.
2. Words alone, however scurrilous or insulting, will not furnish the adequate
provocation
State v. Castro: D went to the store bought a gun, went home loaded the gun and
walked back and forth in his wife and then went to his wife’s house and shot her.
 Criminal law: Professor Cunningham 2010
3. Sufficient provocation can be any action, conduct or circumstances that
arose anger, fear, rage, sudden resentment, terror or extreme emotions.
a. The provocation must be such as would affect the ability to
reason and cause temporary loss of self control in an ordinary
person of average disposition. The provocation must be such
that an ordinary person would not have cooled off before acting.
Sells v. State: D find out about his wife infidelity and shot her.
4. Informational words as oppose to mere insulting words may constitute
adequate provocation.
b. Sudden disclosure of an event (the event being recognized by the law
as adequate) may be equivalent of the event presently occurring.
State v. Munoz: D finds out that his wife was molested by her stepfather.
5. The victim must be source of the provocation.

III. Types of Murder

a. Murder in the 1st degree
1. Premeditation –
2. Certain kinds of felony murder OR
3. Special victims (judge/cops)
1) Premeditation: is the element that distinguishes 1st from 2nd degree
State v. Lindawood: D robbed V and bluntly beat him with a table leg on the head. V
died.
1. Intent and Premeditation are separate element of 1st degree murder
2. Premeditation is the deliberate formation of and reflection to upon the
intent to take a person’s life and involves the mental process of thinking
beforehand , deliberation, reflection, weighing or reasoning for a period of
time, however short. Premeditation must involve more than a moment
in point of time. Factors of Premeditation:
1. Evidence of planning activity before the murder is probative of
premeditation
2. A prior relationship is showing motive
3. A murder weapon acquired and positioned as an indication of
preparation
4. Evidence which supports an inference the killer transported the
victim to a secluded location for an illicit or criminal purpose
5. Circumstances suggesting premeditation or deliberation
6. Subsequent organized conduct which suggests the existence of a
plan.
State v. Bingham: D raped and strangled a retarded adult.
1. Premeditation may be shown by direct or circumstantial evidence
2. Having the opportunity to deliberate during the commission of the crime is
not evidence that defendant premeditate.
a. However, this is can be distinguishable with from Ollens: D
inflicts V with multiple stabs and then slashes s throat with a knife.
The question was whether D premeditated b/w the stabbing anf
knifing to constitute 1st degree murder. The court said, there was an
opportunity for the D to have premeditated.
 Criminal law: Professor Cunningham 2010
i. The court distinguish this case from Ollen in that in
Bingham, the D strangle the V, the strangulation was a
continuous act, therefore the defendant did not pulse to
premeditated even though there was a 3 minutes
interval b/w strangling and death.
3. Premeditation must take place before the commencement of the act
that results in death.
State v. Brooks: D kill a child while he was shit drunk wasted. The question was
whether Ds intoxication prevented him from premeditating?
a. Rule of Intoxication: No acts committed by a person while in a state of
voluntary intoxication is less criminal by reason of that condition, but
whenever the actual existence of any particular mental state is a necessary
element to constitute a particular kind or degree of a crime, the fact of
intoxication may be taken into consideration.
b. Intoxication can negates premeditation but not intent.
c. Two types:
i. Involuntary: is when someone gets the defendant drunk without
his/her knowledge – Defendant will not be criminally liable for
his conduct
ii. Voluntary: is when defendant voluntarily gets drunk and commit a
crime – Not a defense

b. Murder in the 2nd degree = all other murders w/o

premeditation is 2nd degree.

Homicide in New York:

1. Intent to kill
2. Intent to inflict SBI
3. Depraved indifference
4. Felony murder
a. 1st degree
i. Premeditation
ii. Cop killer/other special victims
iii. Certain felony-murder
iv. 2+ victims
v. Brutal killings
b. 2nd degree = all other murders
Manslaughter
1. Voluntary = heat of passion or intent to inflict SBI
2. Involuntary = recklessness

Causation: the defendant’s action must be a sufficiently direct cause of the ensuing death
before there can be imposition of criminal liability. For an act to be sufficiently direct cause, it is
necessary that the ultimate harm be intended by the actor. It will suffice if the ultimate harm is
something which should have been foreseen as being reasonably related to the acts of the accused.
The defendant actions were “actual or contributory cause of death in the sense that they forged a
link in the chain of causes which actually brought about the death. See Kibbe. P283
1. Actual Cause: “But for” the defendant conduct, would the harm have occurred?
 Criminal law: Professor Cunningham 2010
2. Proximate cause: Was the harm a reasonably foreseeable consequence of the defendant’s
actions.
a. The proximate cause does not mean the death has to be immediate and does not
mean the crime is unaided.
b. But if the death is solely attributable to the secondary agency, and not at all induced
by the primary one its intervention constitutes a defense –Intervening-
superseding cause: is an independent act that occurred after the defendant’s action
thereby supersedes D’s action.
i. Disconnected the defendant’s act, thereby making the defendant not the
proximate cause of the victim’s death
ii. But if the intervening act can be foreseen, the defendant is still liable for V’s
death
1. Medical Malpractice is not an intervening cause because ordinary
negligence is reasonable foreseeable, however, medical malpractice
would be intervening cause if the malpractice results due to gross
negligence. See People v. stewart.
3. MPC 2.03: Causation
 Criminal law: Professor Cunningham 2010

Defenses: Insanity, Incompetence and Diminished Capacity.

Two types of defenses;
1. Those people who are different than normal people.
2. Ordinary people do something usual in light of pass experiences

I. M’Naughton Test: A person is criminally responsible if at the time of committing the

offense, he acted under such defect of reason or disease of the mind AND
1. Does not know the nature and quality of the act he was doing OR Majority rule
2. Did not know what he was doing was wrong.
i. Evidence of what may not constitute legal sanity:
1. The presumption of sanity based on personal appearance
2. Mannerisms
3. Actions of D before the jurors during trial
4. Character of his testimony and manner of giving it.
ii. Evidence of what may constitute legal sanity:
1. ability to devise and execute a plan
2. manner in which the crime was conceived, planned, and executed
3. no change in demeanor (appeared normal)
Also Factor test for
4. Δ walked steadily and calmly, spoke clearly and coherently, and
Premeditation appeared to know what he was doing
5. afterwards, Δ was cooperative and not abusive
6. questions were answered promptly
7. appeared and spoke rationally
8. conduct and declaration of defendant occurring w/n a reasonable
time before or after the commission of the alleged act.
iii. When an insanity defense is raised, the DEFENDANT has the burden of
prove by a PREPONDENRANCE OF THE EVIDENCE.

II. ALI/MPC Test (Minority rule): A defendant is not responsible for criminal conduct if as a
result of mental disease or defect … Δ lacks substantial capacity to either:
1. To appreciate the criminality (wrongfulness) of his conduct; OR
2. To conform his conduct to the requirements of the law.

III. Durham Test

1. Unlawful act was a product
2. Of mental disease or defect Don’t use it anymore.

Insanity: means a diseased and deranged condition of mind which renders a person incapable of
knowing or understanding the nature and the quality of his act, or to distinguish right from wrong in
relation to that act.
People v. Wolf: D a 15 yrs old kid killed his mother. He premeditated oh how to killed her.The court
held that he was insane at the time of the offense
The test of insanity is:
1. Did the defendant have sufficient mental capacity to know and understand
what he was doing
2. Did he know and understand that it was wrong and a violation of the rights of
another.
 Criminal law: Professor Cunningham 2010

Diminished Capacity: A defense of diminished capacity arising from mental disease or

defect extends to all specific intent crimes which can be shown to negate specific intent, malice or
other subjective elements of the charged crime.
People v. Drew: D was drinking at a bar, he left $5 dollars on the bar to pay for drink and went to the
bathroom, he ame back and the money was gone. He got into a fight with the person sitting next to
him. Officer tried to stop him and he struck the officer. He claimed mental incapacity. The court held
that: The availability of DI turns on the nature of the crime charged:
1. Diminished Capacity: A defendant charged with a general intent crime cannot raise
a defense of diminished capacity regardless of his mental impairment. However, if
charged with a specific intent crime, he may be able to reduce the offense to a
lesser one and if the crime charged has no lesser offense, the defendant may
secure his outright acquittal and release.
People v. Wetmore: D entered another’s apartment under a delusion that the apartment was his. The
court held that:
2. A defendant who, because of Diminished capacity, does not entertain the specific
intent required for a particular crime is entitled to be acquittal of that crime. If he
cannot be convicted of a lesser crime and cannot be safely released, the state’s
remedy is to institute civil commencement proceedings, not to convict him of a
specific intent crime which he did not commit.
INTOXICATION
1. Involuntary Intoxication: can be a defense to any crime
a. Treated like a mental illness, so apply insanity tests
b. Key: the intoxication must be completely involuntary
2. Voluntary Intoxication: can be a defense to specific intent crimes, if the
intoxication prevents the defendant from forming the specific intent.
a. However, it cannot be a defense to malice, general intent, or strict liability
crimes.
3. Voluntary Intoxication: NEW YORK: can be a defense to intent crimes and
Knowledge crimes, if the intoxication prevents the defendant from forming the
required intent
a. Cannot be a defense to crimes of recklessness, negligence or strict liability.
INCOMPETENCE: A defendant cannot put on trial at present time if he cannot understand
and assist in his own trial.
He will be sent to a mental facility until he is competence to stand trial. See ppt.
 Criminal law: Professor Cunningham 2010

SELF DEFENSE
 2C:3-4 Use of Force in Self-Protection.
a. The use of force upon or toward another person is justifiable only if the actor
(1) reasonably believes that;
(2) such force is immediately necessary;
 Not imminently or future timeframe
(3)for the purpose of protecting himself against the use of unlawful force by such other person
on the present occasion.
b.  Limitations on justifying necessity for use of force.
      (1)      The use of force is not justifiable under this section:
        (a) To resist an arrest which the actor knows is being made by a peace officer in the
performance of his duties, although the arrest is unlawful, unless the peace officer
employs unlawful force to effect such arrest;
(2)      The use of deadly force is not justifiable…unless
(a) The actor reasonably believes that such force is necessary to protect himself
against death or serious bodily harm;
 (b)  The actor, with the purpose of causing death or serious bodily harm, provoked
the use of force against himself in the same encounter; or
 (c)   The actor knows that he can avoid the necessity of using such force with complete
safety by retreating or by surrendering possession of a thing to a person asserting a
claim of right thereto or by complying with a demand that he abstain from any
action which he has no duty to take, except that
       (i)  The actor is not obliged to retreat from his dwelling, unless he was the initial
aggressor;

Case law:
People v. Mulvihil: D and cop enede up in a push and shove when the cop tried to arrest him.
1. Under Common Law: a person may not resist arrest by an authorized police officer
whether or not the arrest is lawful or unlawful.
2. Modern Law: When an officer makes an unlawful arrest, the arrestee has a duty to
submit and seek recourse in the courts for the invasion of his right of freedom.
However, if the officer employs excessive and unnecessary force, the arrestee
may respond or counter with the use of reasonable force to protect himself.
a. Policy: is that the law is design to protects a person’s bodily intergrity and
health and so permits resort to self-defense; the law recognizes that liberty
can be restored through legal processes but limb and life cannot be repaired
in a courtroom
b. But, he cannot use greater force in protecting himself against the officer’s
unlawful force than reasonably appears unnecessary. If he employs greater
force, hen he becomes the aggressor and forfeits the right to claim self-
defense
State v. Bonamo: D was angry at his wife and hit her, her stepdaughter witness it and ran to get the
uncle. As the uncle approaches D on his house step he shot him. The court held that
1. Self- defense is measured by Necessity meaning it can only be invoked in cases
where the act of killing is necessary or reasonably to preserve the defendant’s life or
to protect him from serious bodily harm.
 Criminal law: Professor Cunningham 2010
2. Retreat Doctrine (b)(2)(b): An actor is bound to retreat or withdraw before
employing deadly force in his defense when there lies an open safe avenue to escape
and he is consciously aware of it. However;
3. Castle Exception: An actor is not bound to retreat when he is in his dwelling.
Dwelling meaning with the “Curtilage “ of his house
a. A porch or other physical appurtenance is deemed to come within this
concept.
State v. Kelly: D was severely abused by her husband: Battered Woman Sydrome. Pg 384-394
State v. Gartland: D lives with her Husband and they got into an argument. D and V although
husband and wife slept in separate room. V approach V in her room and threatens her D shot him. The
court held:
1. Majority Rule: is that a cohabitant has no duty to retreat in his/her own house
against her other cohabitant
2. Minority Rule(NJ): A cohabitant has a duty to retreat from her dwelling at the time
of the attack.
3.

Policy: Competing Public policies in self-defense

1. Broad Rule: People have the inherent, moral right to defend themselves.
a. Natural law: right to preserve one’s life
2. Narrow Rule: Avoid unnecessary harm to others, even those provoked attacks.
a. Self-defense should not be a cover for revenge taking.

Infancy
 Common Law
 If the age is 7: prosecution not allowed
 If the age is 7 – 14: Rebuttable presumption against prosecution
 If the age is older than 14: prosecution allowed
 New York
 If have is older than 13: Criminal prosecution as an adult not allowed;
only “juvenile delinquency” proceedings in Family Court.
 If the age is 13 or older: Criminal prosecution as an adult allowed for
second degree murder.
 If the age is 14 or older: Criminal prosecution as an adult allowed for
serious crimes against persons or property
 If the age is 16: Criminal prosecution as an adult allowed for any crim
 If age is 18 or above: Criminal prosecution for 1st Degree Murder
 Other Defenses
o Self-Defense (Justification)
o Use of Force to Prevent a Crime
 Non-deadly force may be used if necessary to prevent a crime (doesn’t matter if
it’s a felony or misdemeanor)
 Deadly force may only be used to prevent a felony risking human life.
 New York: Deadly force may be used to prevent a rape, robbery, arson,
kidnapping, or burglary; and retreat is NOT required.
o Defense of others
 Criminal law: Professor Cunningham 2010
 A D may use for and deadly force to protect others just the same as he could use
it to defend himself.
o Defense of property
 General Rule: Deadly force may NOT be used to defend property
 Burglary Rule: Deadly force may be used to prevent a burglary, if the D is inside
his own home.
NECESSITY (Choice of evils): is a defense to criminal conduct if the defendant reasonably
belief that the conduct was necessary to prevent a greater harm.
U.S. v. Holmes: Vs were passenger on a boat when it went down, some manged to escape with the
crew men. The crew men threw the passenger overboard.
1. The situation becomes necessity when all ordinary means of self-preservation
have been exhausted; the peril must be instant, overwhelming, leaving no
alternative but to lose our own life, or to take the life of another person.
a. However, we must also look to the relationship in which the parties are: the
person committing the harm must be under no obligation to make jis
own safety secondary to the safety of others.
Exception: Necessity cannot be a defense to homicide. See Dudley and Stephens
U.S v. Contento-Pachon: D, ataxi driver was forced to carried drugs to united states. The court held
that:
2. The defense of necessity is available when a person is faced with a choice of two
evils and them must decide whether to commit a crime or an alternative act that
constitutes a greater evil.
a. This defense is usually invoke when the defendant acted in the interest of
the general welfare.
b. And, is based on a real emergency involving specific and imminent grave
injury that present the defendant with no alternative than the one
taken.
i. Evidence of necessity are:
1. All other potentially viable and reasonable alternative were
pursue, or shown to be futile
2. The action taken had a direct causal connection with the
harm sought to prevented,
3. That the action would have bring about the abatement of the
harm
4. The action taken was an emergency measured pursued to
avoid specific, definite, ad imminent injury about to occur.
See People v. Andrews, p469.
Necessity in NEW YORK:
3. The harm avoided must be greater the harm caused.
4. Necessity can be a defense to homicide

DURRESS: is a defense if the defendant was forced to commit a crime under a threat of death or
serious bodily injury.
Exception: Not a defense to Homicide

DURESS in NEW YORK

1. Is a defense to Homicide.
 Criminal law: Professor Cunningham 2010
2. Burden: Duress is an Affirmative defense (Burden is on defendant to prove by
preponderance of the evidence)

Case Law:
U.S v. Contento-Pachon: D, ataxi driver was forced to carried drugs to united states. The court held
that:
1. Duress defense required that:
2) An immediate threat of death or serious bodily injury
a. The element of immediacy requires that there be some evidence that the
threat of injury is present, immediate, or impending. A veiled threat of
future unspecified harm will not satisfy this requirement
3) a well-grounded fear that the threat will be carried out; and
4) no reasonable opportunity to escape the threatened harm

ENTRAPMENT: if the government unfairly tempted the defendant to commit the crime, he may
claim entrapment. This very narrow defense works only if:
1) The crime design originated with government, and
2) The D was not predispose to commit the crime.
3) NEW YORK: Entrapment is an affirmative defense. Defendant has the burden of proof by a
preponderance of the evidence.
 Criminal law: Professor Cunningham 2010

ATTEMPTS: a person is guilty of attempt to commit a crime if, acting with the kind of
culpability otherwise required for commission of the crime, if
1. he purposefully engages in conduct which would constitute the crime if the attendant
circumstances were as he believes them to be; and
2. took substantial step towards the commission of the crime;
3. The substantial step must be conduct which strongly corroborates the firmness of the
defendant’s criminal attempt.
MPC 5.01 see text for full
1. Intent to commit crime
• One of three actions:
– (a) Would be a crime if attendant circumstances were as believed
i. Purposeful engagement in conduct
ii. Would constitute a crime
iii. IF the attendant circumstances were as Δ believes them to be
– (b) Where result required, set plan in motion and no further action required
– (c) Substantial step towards commission of crime
i. Intent to commit crime (same mens rea)
ii. Substantial step towards commission
iii. The substantial step must strongly corroborate intent
• Examples
• Lying in wait
• Enticing victim to go to would-be crime scene
• Reconnaissance
• Unlawful entry of would-be crime scene
• Possession of weapons/tools of crime
• Soliciting another to help
2. No Renunciation
Renunciation Defense
a. Abandoned effort OR Δ prevented commission
b. Intent to completely and voluntarily abandon criminal purpose
i. Exception: renunciation occurs because of increase in probability of
detection OR crime is more difficult to accomplish OR criminal is going to
wait for a better time.

Case Law
U.S. v. Mandujno: D tries to sell heroin to an undercover cop. H e did a lot to try to sell it.
1. See definition of Attempt above
2. Mere preparation is not enough rather the actor must took “Substantial Step” toward
the commission of the crime
“[A]n immediate step in the present execution of the criminal design, the
progress of which would be completed unless interrupted by some
circumstances not intended in the original design.”
 Policy: mere preparation is not enough b/c Substantial step gives leeway before D
can be convicted
 Want to give Ds opportunity to change mind
 Competing Policy: want to incentize police to intervene earlier to minimize injury
U.S. v. Roman: Dtries to transport drugs to US.
• Mistake of fact = defense, if negates element of the offense.
• Mistake of law = no defense, unless reliance upon some governmental authority.
 Criminal law: Professor Cunningham 2010
1. Impossibility of Fact and Law in Attempt
a. Legal Impossibility: denotes conduct where the goal of the actor is not criminal but
he believes it to be
i. Impossibility of law = defense.
1. If factual circumstances were as the Δ believed them to be,
would it be a crime? No, attempting to do so that which is not a
crime is not attempting to commit a crime.
2. Legal impossibility occurs where he act even if completed would not
amount to a crime. Thus it applies to those circumstances where:
a. The motive, desire, and expectation to perform an act in
violation of the law;
b. There is an intention to perform a physical act;
c. There is a performance of the intended physical act; and
d. The consequence resulting from the intended act does not
amount to a crime.
b. Factual Impossibility: denotes conduct where the objective is proscribed by the
criminal law, but a circumstance unknown to the actor prevents him from bringing
it about
i. Impossibility of fact = no defense.
1. If factual circumstances were as the Δ believed them to be,
would it be a crime? Yes.

INCHOATE OFFENSES: are incomplete crimes.

I. Solicitation: is asking someone to commit a crime with the intent that the crime be
committed.
a. Mental State: Specific Intent
b. Completion Unnecessary: The crime is in the asking itself. (it doesn’t matter
whether the crime is actually committed.
II. Conspiracy: is an agreement b/w two or more people to commit a crime, plus an overt act
in furtherance of the crime.
a. Overt Act: Any act of preparation (minimum requirement). Traditionally, the
common law did not require an overt act, but the majority of states now do.
b. Mental State: Specific intent to accomplish the conspiracy’s objective
c. Completion Unnecessary: the crime is in the agreement (plus the overt act)
d. Can you have a One-Person Conspiracy
i. Common Law: No. There must be at least two guilty minds, both of whom
actually agree to accomplish the conspiracy’s objective (the bilateral
approach)
1. Related Common Law Rule: if all the other parties to the agreement
are acquitted, the last remaining defendant cannot be convicted
ii. NY/MPC: Yes. Under the Unilateral approach, a defendant may be guilty of
conspiracy even if the other parties are acquitted or were just pretending to
agree.
e. VICARIOUS LIABILITY
i. Common Law Rule: In addition to conspiracy, a defendant will be liable for
the other crimes committed by his co-conspirators, so long as those crimes
1. Were in furtherance of the conspiracy’s objective, and
2. Were foreseeable.
 Criminal law: Professor Cunningham 2010
ii. New York Rule: No vicarious liability for crimes committed by co-
conspirators

Accomplice Liability: In order for a person is guilty of crime physically committed by

another, it is necessary that he not only have conscious intent that the criminal act shall be done,
but furthers requires that pursuant to that intent, he do some act or say some word which was
intended to and which did incite, cause, encourage, assist or induce another person to actually
commit the crime.
1. Presence at the scene, without more is not sufficient to establish either intent to
participate or act of participation
2. Mere Knowledge that an offense is being committed is not equivalent to
participation with criminal intent
3. Circumstantial evidence goes to both intent and assistance, However, the evidence
must be consistent with guilt
a. Assistance is a minimum requirement
Accessory After the Fact: the accomplice was not aware of the crime beforehand. If D forms the
intent after he became aware that a crime has been committed, he is not an accomplice. See Gains v.
State. PG 680, SECTION 777.03

Natural and Probable Consequences/Independent act: Is the act/unlawful conduct a

foreseeable consequences of the intended crime, if so, a felon is liable for the murder committed by
his co-felon committed in furtherance of their joint felony,
However, when there is evidence that the acts of a co-felons resulting in murder was
independent, not committed in furtherance of or in the course of the joint felony, the felon is
not guilty of the felony murder.

MPC 2.06.
• A theory of criminal liability
• Not a separate offense
• Punishment = Same as crime itself
• First analyze the Principal’s conduct (did he commit a crime?)
• Then focus on
– D’s intent
– D’s actions to assist or aid the crime

Vicarious Liability – A defendant can be vicariously liable for the killing committed by his
accomplice if it is done in furtherance of their common design to commit a crime. See Washington.
i. Where several persons combine to commit an unlawful, each is
criminally responsible for the actions of his associates committed in
furtherance or prosecution of a common design.
ii. All persons aiding and abetting the commission of a robbery are guilty of 1 st
degree murder when one of them kills while acting in furtherance of the
common design
iii. Taylor v. Sup. Ct: should D be liable for killing that occurred not by him or his
accomplice while they were resisting arrest, the cop did the killing?
9. The court held that a D who initiate a gun battles may be
found guilty of murder if their victims resist and kill not by the
them but the police officer .
 Criminal law: Professor Cunningham 2010
a. However, the court also stated that a gun battle can
be initiated by acts of provocation falling short of
firing the first shot.
h. A robbery is still in commission if the defendants have not reach a
1. place of temporary safety OR
2. there is still scrambling possession.