Exam Outline

Goals of Criminal Law and Punishment

I. Goals of Criminal Law A. Deterrence: i. General (society) - can we deter the population at large ii. Specific (individual) - can we deter the particular defendant B. Rehabilitation C. Incapacitation / Incarceration i. Incapacitation and just punishment may conflict a) Example: what should be done with john hinkley for example (guilty by reason of insanity)? can we imprison for life when he was insane but can we let him loose? Dilemma. Are some people just too dangerous, how to resolve dilemma? ii. Dilemma: Possible to preserve the concept of legal justice and reject capital punishment? iii. Prisons are overbooked iv. If we put someone in jail they are a marked person a) Less fear of a new conviction since their reputation already tarnished D. Retribution / Justice i. the notion of returning justice to the offender, but can be in conflict with deterrence ii. How much weight to give the intentions, to the actual harm caused, to the character of the actor, to mitigating circumstances? iii. Does this reinforce community goals? iv. Eye for an eye Kant E. Potential Conflict i. recognize they can be in conflict and different plays in CJ system might have different interests. ii. Justice may conflict with rehabilitation. iii. What incentive do criminals have to rehabilitate themselves if we dont release them in x amount of time? Give arguments for them and say why one should

II. Policy Considerations A. Role play in any position, victim rights, DA, defense atty, etc. B. Notes from casebook: i. neither judges nor prosecutors can make criminal laws ii. Think about Should the legislature pass a statute that criminalizes this type of conduct? What general arguments should control the legislatures decision?
III. Death Penalty A. Does person have disabilities? Juvenile? B. Most death penalty statutes require sentence to find the presence of at least one statutory aggravating circumstance: i. Killing for financial gain ii. Killing police officer or prison guard iii. Killing more than one person iv. Killing in order to escape from lawful custody or to avoid arrest v. History of violence C. If you are representing someone in a capital murder trial i. You need to focus on both trials guilty/innocence and sentencing trial D. Defenses mitigating circumstances i. Doubt about guilt ii. Turbulent family history iii. Severe emotional disturbance iv. Good behavior while awaiting trial v. Commission of crime under: 1. Duress 2. Influence of drugs/alcohol E. Eye witness testimony highly unreliable F. What are arguments FOR capital punishment?

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i. Deterrence ii. Retribution iii. Incapacitation (stop criminal) G. What are arguments against capital punishment? i. Applied unfairly (race, economics) 1. Example: a. McClesky v. Kemp i. Brought in statistics to argue ii. Costs a lot more than life in prison iii. Killing innocent people iv. Moral no right to kill others v. Cruel and unusual punishment (unconstitutional) vi. Against intentional norms vii. Discrimination in application Actus Reas I. Elements (for criminal liability) A. Must be a voluntary act ORi. Cannot be an involuntary reflex 1. Examples: a. Sleepwalking b. People v. Newton plane inadvertently landed in NYC B. Omission or failure to act can have criminal liability if: i. By statute 1. Ex. good samaritan laws, tax returns ii. By contract 1. Ex. lifeguard, nurse iii. Relationship between parties 1. Ex. child, spouse a. Jones v. US sons in poor health, severe neglect iv. Voluntary assumption to care/rescue someone (then you fail) 1. Ex. people in park that has a lake, someone is swimming in the lake and in trouble. Def says Im going to save you and then sees who it is and then swims back. v. Where your conduct created the peril 1. Ex. you push someone in pool and they cant swim. C. Mere thoughts do not count D. Words can be actions shoot em i. Some crimes are usually committed by the act of speech Mens Rea I. Common Law Elements A. A culpable state of mind i. Desire or intent to commit an unlawful act -orii. A reasonable knowledge that the consequence was likely to result from one's actions II. Model Penal Code A. Rejects two-part intent in favor of four part definition i. Purposely you wanted the result, no matter how unlikely. Specific intent. ii. Knowingly engaging in conduct likely to produce that result. Specific intent iii. Recklessly no specific intent iv. Negligently no specific intent (beyond ordinary tort negligence) B. Requires a specific mindset for each element of a crime III. Factual information can be key A. What did D know and understand? IV. Statutory language A. Intentionally or with intent to B. Knowingly or with knowledge that C. Purposely or for the purpose of D. Fraudulently or with intent to defraud E. Willfully, maliciously, or corruptly F. Without intent use objective standard [reasonable man] i. Recklessly -- one is aware his conduct might cause the result, though it is not substantially certain to happen

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to happen ii. Negligently -- untenable risk of harm to others (persons or property) 1. Weigh magnitude of the risk of harm against the social utility of the actor's conduct 2. D must understand the risk (subjective) of harm

V. Degrees of fault A. Subjective fault i. Actual bad mind or intent to cause harm (Purposely or Knowingly) ii. Does not have to be reasonable B. Objective fault i. Recklessly or negligently ii. Court can say a reasonably prudent person wouldnt have done that act 1. How far you deviate from the RPP standard matters iii. Example Negligent homicide: a. Negligently causes anothers death (only requirement) C. Strict liability i. No mens reas defense 1. Imposes liability for commission of the bad act even without mens rea ii. Example Statutory Rape 1. Knowledge of the age is not required, nor is a reasonable belief that the victim was over the age a defense. Even a reasonable mistake is not a defense iii. Such offenses are said to be malum prohibitum (wrong because they are prohibited), rather than malum in se (wrong in themselves (evil)) iv. Disregards intent, no intent crime. Any defense that negates intention cannot be a defense to strict liability crimes. v. Reasonability of the crime is not a defense vi. You can only argue there was no actus reas no voluntary act has happened vii. Strict liability crimes are said to require no proof of mens rea and therefore do not allow a defense for even a reasonable mistake of fact. viii. If there isnt a mens rea defense available, is there an actus reas defense? ix. Strict liability crimes often relate to what are called public welfare health/safety 1. Ex. Violating traffic safety regulations x. Formula 1. If the crime is administrative, regulatory or morality area 2. No adverbs in the statute knowingly, willfully or intentionally then its meant to be no intent crime of strict liability VI. Specific v. General Intent A. Specific Intent i. Definition: intent to bring about a specific result/harm (ex burglary) ii. Mistake of fact is a defense iii. Specific intent crimes qualify for additional defenses not available for other crimes: attempt, 1st degree murder, larceny, embezzlement, robbery, burglary 1. Example: Larceny a. Intent to permanently deprive rightful owner or property (she knows shes not entitled to must be awareness that property is not hers) b. Is universally considered to be a specific intent crime 2. Example: Burglary a. In addition to intentionally breaking and entering into a building, the actor must have done so with extra special intent to commit a felony therein B. General Intent i. Definition: intent to commit action but not necessarily to bring about result ii. General Intent catch-all category. Almost every crime is a general intent crime. 1. Ex. rape and battery a. All crimes other than malice and specific intent are general intent C. Importance of difference i. Mens rea defenses 1. Specific intent can be formed around the notion that D did not intend a particular result (intoxication) VII. Transferred Intent a. I want to kill the guy in the yellow shirt but I kill another person by accident but I am guilty of murder for hitting the other woman i. Always two crimes in transferred intent example murder with the woman I killed and attempted murder for the person you meant to kill

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murder for the person you meant to kill ii. Never merge any crimes that have different victims

VIII. Defenses to Mens Rea and Actus Reas a. Intoxication i. Voluntary There IS actus reas i. This has actus reas ii. Self-induced (includes addicts/alcoholics) iii. Defense only to specific intent crimes 1. May be a defense if it negates the mens rea required by the crime a. But courts generally reluctant to find that Ds voluntary intoxication actually negated specific intent 2. Example: After drinking, A breaks into B house and beat him up. A is arrested for speeding away in car. Will As voluntary intoxication be a defense to the burglary? Yes but not to the battery. ii. Involuntary no actus reas i. Forced to drink, or something dropped in your drink ii. This is a form of insanity iii. Defense to ALL crimes (including to strict liability) b. Mistake of Fact i. Can negate liability except in strict liability crimes ii. Is a defense against liability if it negates the mens reas required to commit the crime i. Honest and unreasonable if the crime is a specific intent crime could help 1. Ex. Larceny requires a knowledge that the property belongs to another, so if he thinks its his and takes it that is honest and unreasonable and this can be a defense iii. Not a defense to strict liability crimes iv. In jurisdictions that separate offenses into general and specific intent crimes, mistakes of fact must be both honest (sincere) and reasonable in order to afford a defense to a general intent crime. i. But even an unreasonable mistake of fact can be a defense to a specific intent crime so long as it was sincere. v. Mistake of Fact under MPC: i. For crimes that require purpose or knowledge an honest mistake of fact is a defense, even if the mistake was reckless ii. For crimes requiring recklessness a mistake of fact is a defense so long as it was not reckless iii. For crimes requiring negligence a mistake of fact is a defense provided the mistake was not negligent in other words, it might have been a reasonable mistake c. Mistake of Law i. No excuse, cannot be mens rea defense ii. Inherent difficulty of proving whether or not def knew of the law iii. Policy questions i. Does this make all law abiding citizens responsible for all laws they wouldnt normally be expected to know? ii. Should we in applying this doctrine, apply this only to malem-in-se crimes and make this only applicable to prohibitim-in-se crimes? iv. Think of a case where a victim is asked have you ever been convicted of a felony? she says no but was but thought it was a misdemeanor. v. IRS allows good faith mistakes of law to be a defense i. Example: People v. Wendt vi. Ignorance of the law is a defense if it negates the mens rea required to commit a crime vii. Because most crimes do not require proof that the defendant was aware of the law thus mistake of law will rarely negate the mens rea required by the crime viii. There are four situations which an erroneous belief that ones conduct is lawful generally constitutes a defense even though the mistake does not negate the mens rea required to commit the crime: i. When the law is not published (no significance today) ii. When the mistake arises from reasonable reliance on: 1. a statute that is later determined to be invalid 2. a court decision 3. a public official who is in a position to interpret the relevant statute a. Ex. Attorney ix. Example Gordon v. State i. Boy didnt know that he was not able to vote because he didnt know his real age

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i. Boy didnt know that he was not able to vote because he didnt know his real age
Homicide

I. Generally -- the killing of a human being by another human being A. (1) an act or omission (2) with intent (3) to cause death (4) within a year and a day [some jurisdictions] B. Common law understanding of intent that supports "murder": i. No justification (self defense) or excuse (insanity) or mitigating circumstance C. Proving INTENT i. Natural-and-probable-consequences Rule ii. Deadly weapons rule iii. Constitutional limitations a) Cannot instruct a jury as to what the law presumes D. When does life begin? i. Shooting a dead body is not murder. ii. What about fetuses? a) Proof of live birth + death by criminal agency are required to sustain homicide conviction b) Some jurisdictions hold infliction of injury on a fetus prior to birth may be homicide if the fetus dies after being born alive (anomalous holding -- if the killing was "more efficient" the fetus would've died in the womb and there would have been no homicide) c) Some jurisdictions hold that viable fetuses (26+ weeks) are humans protected by homicide laws E. When does life end? i. "brain death" -- a lack of response to external stimuli + no spontaneous movements + no reflexes ii. Time of death is important for establishing causation a) A shoots B, B ends up in the hospital on a ventilator. Doctor determines brain death and pulls the plug. Who killed B? (I) If brain death is legally sufficient, A did (II) If brain death is NOT legally sufficient, the Doctor might be criminally liable F. Difference between 1st degree murder and voluntary manslaughter is premeditation vs. provocation i. Premeditation [FIRST DEGREE] ii. Provocation [VOLUNTARY MANSLAUGHTER] G. An awareness of the risk/likely resulting harm is the line between depraved heart murder and involuntary manslaughter i. Depraved heart murder: requires plain and strong likelihood of death [RECKLESS] ii. Involuntary manslaughter: a high degree of likelihood of substantial harm [NEGLIGENT] THE FOLLOWING ARE SPECIFIC INTENT TYPES OF HOMICIDE: 1st Degree Murder, Felony Murder & Voluntary Manslaughter II. 1ST Degree Murder A. Elements: a deliberate, premeditated unlawful killing of a human being by another human being with malice aforethought i. Specific intent crime because of the malice requirement -- the INTENT TO KILL ii. Premeditated and deliberate a) Deliberate -- to measure and evaluate the major facets of a problem ("cold blooded") b) Premeditate -- to think beforehand (I) The Carroll Rule: "Premeditation-in-an-instant" 1. "no time is too short for a wicked man to frame in his mind the scheme of murder" 2. Essentially equates premeditation with any intentional killing
(II) The Anderson Rule: "Contextual Evidence" 1. What did D do prior ie planning 2. Prior relationship/conduct with victim from which the jury can determine motive 3. The manner of killing and condition of the body (facts which might indicate premeditation)

iii. Malice a) Intent to kill another human being b) Intent to do serious bodily harm to another human being c) Reckless disregard for the value of human life d) The intention to commit a felony during the commission/attempted commission of which a death results B. Defense

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B. Defense i. Make the case that defendant did not have premeditated thoughts C. Felony murder i. Generally a) Subset generally of first degree. b) Actus Reus: commission of a predicate felony where death occurs (I) First degree: Arson, Rape, Robbery, Burglary, Kidnap (II) Second degree: unspecified felonies (usually "inherently dangerous to human life") c) Mens Rea: not required for the specific death (I) Allows for strict liability for a death resulting from commission of a felony (II) The intent to commit the felony constitutes the implied malice required for common law murder d) When applicable? (I) Applicable when murder is an inadvertent result of felony attempted e) In commission requirement: (I) Many jurisdictions define duration of the felony to continue until felons reach a place of temporary safety ii. Rationale: a) Deterrence -- intended to deter negligent and accidental killings during commission of felonies b) Reaffirms sanctity of human life c) Justified under Transferred Intent doctrine -- the felon's intent to commit a felony is transferred to his intent to kill d) Eases the prosecutor's burden of proof iii. Criticisms: a) How does one deter an unintended act? The death may is unintended, and may be unforeseeable b) It is not fair to increase the felon's punishment for the social harm of a death that may have been caused unintentionally c) Felony murder is a misuse of Transferred Intent -- the felon's intent to commit a felony (social harm x) is transferred to the different, more serious, social harm of a homicide (social harm y) d) The felony murder rule is unnecessary to prove malice aforethought iv. Limitations: a) Inherently-Danger-Felony Limitation (I) Limit the application of FMR to felonies "inherently dangerous to human life" (II) How to determine? 1. Consider felonies in the abstract -- how is the offense defined by statute? Can it be committed in a nonviolent fashion? a. People v. Howard Caused a death while running from the cops Court held the statute he was convicted under was not an inherently dangerous felony, because the violation could be done nonviolently 2. Consider the facts of the particular case -- was the felony dangerous in the manner and circumstances in which it was committed? (III) Brings FMR very close to the extreme-recklessness concept of malice b) Merger doctrine (I) FMR only applies if the predicate felony is independent of the homicide (II) When it is NOT independent, it merges with the homicide and can't serve as the basis for an FMR conviction (III) Felonious assault & battery cannot serve as the basis for an FMR conviction (IV) Never merge any crimes that have different INTENTS 1. Example: a. People v. Robertson Shot gun in the direction of people trying to steal his car Found guilty of felony murder because it was a felony to recklessly shoot your gun up in the air c) Res Gestae Requirement (I) FMR only applies when it occurs "during the commission" of a felony (II) Components: 1. Time & Distance a. Continues after the commission of the crime, until the felon reaches a place of temporary safety

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temporary safety b. The critical issue is when the KILLING CONDUCT occurred, not the death itself. 2. Causation a. Causal relationship between the felony and the homicide b. Requires more than "but for" causation In King v. Commonwealth, the court rejected a felony murder conviction for the pilot of a plane with drug cargo that crashed during bad weather and killed the co-pilot. The plane would have crashed even if its cargo had been legal, and so the co-pilot's death was caused by pilot error, weather and inexperience, not by an act that was integral to or in direct furtherance of the felony. d) Where the victim is killed by a non-felon (by third party or police), courts disagree on whether other robbers liable for felony-murder: (I) Agency doctrine Majority approach. 1. Felony murder rule does not apply in this death directly caused by an innocent person 2. Only way FMR applies is if the agent or accomplice in the underlying felony commits the murder 3. Defendant is not liable for the death of a co-felon as the result of resistance against the police 4. Can also be said that police killing felon was lawful thus robber cannot be charged with a lawful act (II) Proximate-Cause Theory - Minority approach 1. FMR can be applied to death caused by non-felon 2. Idea is that if defendant by committing the underlying felony can be said to have proximately caused the homicidal act. 3. Causation + felonious state of mind is all that is required a. State v. Sophophone D's co-felon was killed by the cops Majority held he couldn't be convicted of second degree felony murder because of the agency doctrine (he was not the cause, police killings are lawful) Dissent argued that D had set in motion dangerous events v. Defense to Felony Murder a) If defendant had a defense to the underlying felony, he has a defense to felony murder b) The felony they are committing must be something other than the killing c) The deaths must be foreseeable (causation) d) Deaths caused while fleeing from a felony are felony murder (I) But if the defendant has reached the point of temporary safety, no longer in the window for felony murder 1. Ex. spends the night at moms house III. Voluntary manslaughter "Sudden Heat of Passion" A. Elements: i. An intentional homicide committed in the "sudden heat of passion" as the result of "adequate provocation" ii. Sudden Heat of Passion -- any violent, intense emotion including fear, jealousy, rage, desperation a) Not an appropriate charge if there has been a cooling off period iii. Adequate Provocation -- used to have five discreet common law categories, now we generally leave it up to a jury a) Battery, Mutual combat, Assault, Illegal arrest (modern trend is to discount this), Adultery, Injuries to close relatives b) Words alone are difficult to prove as adequate provocations (usually) c) Test would a reasonable person be provoked to commit homicide under those circumstances d) Does not require subjective appreciation of the risk e) Killing from passion always must be passion B. Policy: should someone be convicted of lesser offense if they were provoked? i. Partial justification -- is a heat of passion killing a less serious offense than ordinary homicide because the decedent (at least partially) deserved to die? a) Not a defense under "misdirected retaliation" -- S observed P, a reckless driver, strike X, S's child. S attempts to attack P, V attempts to intervene, S kills V. Not defensible under "sudden heat of passion" ii. Partial excuse -- is heat of passion killing excusable because we believe the passion experience at the moment of the fatal act makes her less responsible for her conduct? C. Who is the Reasonable Person?

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C. Who is the Reasonable Person? i. Objective standard ii. Should we have a one size fits all? iii. Children and mentally retarded have a different standard D. Criticism of Provocation Doctrine i. Utilitarian criticism a) HOP diminishes the general deterrence incentive of persons to learn self control b) If persons truly lose their capacity for self control, why is this a partial defense? If they have at least a small capacity to control themselves, why not fully blame them for failing to exercise their self control? ii. Feminist Criticism a) This is a deeply sexed excuse for murder b) This defense disadvantages women because men are by far the most frequent killers, and women the most frequent victims c) Narrow the defense to only those provocations which are themselves punishable by law

THE FOLLOWING ARE GENERAL INTENT TYPES OF HOMICIDE: 2nd Degree Murder and Involuntary Manslaughter VI. 2nd degree murder A. Elements: i. Reckless, activity, subjective appreciation ii. No premeditation iii. Intent to seriously injure D may have premeditated, but only seriously bodily injury to person iv. If danger is completely obvious and a RPP would know the risk and jury can make inference that defendant understood/was aware of the risk/danger B. Depraved heart murder i. Reckless activity with appreciation of the risk (subjective standard) -- IMPLIED MALICE ii. Example: People v. Knoller a) Regarding the deadly dogs iii. Fact finder may infer appreciation of the risk -- IMPLIED MALICE a) The actor "as good as" intended to kill the victim and displayed unwillingness to prefer the life of another person to his own objectives b) May be an act or a lethal omission c) Example: Commonwealth v. Malone (I) Russian roulette case iv. You cannot have attempt for depraved heart murder v. Prosecution a) Can make the case that danger is patently obvious b) Argue elements of awareness c) Difficult to prove subjective awareness V. Involuntary manslaughter A. Elements: i. A person does 1) an unlawful act or 2) a lawful act in an unlawful manner and 3) without due caution and circumspection, 4) resulting in death for another person a) "misdemeanor-murder" [unlawful act] -- sometimes involving unlawful acts not in felony murder statute (I) Limited in jurisdictions where it survives 1. Causation requirements 2. Requires proof that D was culpably reckless or negligent 3. Limited the doctrine to misdemeanors that involve a danger of injury 4. Limited to misdemeanors that are mala in se rather than mala prohibita 5. Refused to apply the doctrine where the underlying misdemeanor is a strict liability crime and D was not criminally negligent
b) "criminal negligence" [lawful act done unlawfully] (I) Ex. Drive 100 mph and kill someone (II) A gross deviation from the standard of care a reasonable person would use in the same situation B. Courts use various terms to describe mens reas requirement: wantonness, willfulness, recklessness, indifference, disregard, culpable negligence, criminal negligence, gross negligence. C. Does not require subjective awareness of risk [main difference from 2nd Degree Murder]

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C. Does not require subjective awareness of risk [main difference from 2nd Degree Murder] D. Examples: i. Commonwealth v. Welansky a) Boston nightclub fire ii. Commonwealth v. Feiberg a) Sold industrial strength Sterno that killed 31 people Rape I. Common law A. Elements: i. (1) unlawful (2) sexual intercourse with a (3) woman (4) against her will by (5) force or threat of immediate force ii. Under the common law, men cannot rape their wives iii. Acts that are not penetration are not rape iv. Only women can be victims, only men can be perpetrators (women can be accomplices) v. Requirement of a woman to resist "to the utmost" vi. Force must be severe enough to make the woman fear for her life B. Statutory changes to the common law i. allowing wives to charge rape (I) Though less serious penalties for husbands usually (II) Sometimes extended to cohabitants (III) Example: People v. M.D. officially removing the bar to prosecution of marital rape ii. Expanding the proscribed conduct to include acts that fall short of penetration (I) e.g. sodomy iii. Removing gender-specific language in victimology and perpetrator (I) Men can be victims (II) Women can be perpetrators (III) Recognition of homosexual (ie, prison) rape iv. Relaxation of the requirement that a woman resist "to the utmost" (I) In response to sharp criticism Many women do not resist Resistance may be dangerous and result in greater injury or death (II) Generally requires only an expression of nonconsent (III) However, proof of resistance may be critical to proving that a rape occurred v. Removal of force requirement (I) May apply to sex with a drugged or unconscious female (II) May apply to sex obtained through "fraud-in-the-factum" (see below) vi. Offense may be divided into degrees II. Statutory Rape A. History and Definition i. Under English law, was sex with a "woman child" under the age of 10 with or without her consent ii. Under American Law, expanded definition includes sex with any minor B. Application i. Usually a two level offense (I) Sex with a very young girl is punishable at the level of forcible rape (II) Sex with an older girl (especially if the male is older than the female by a specified number of years) is a felony of a lesser degree C. Defenses i. Statutory Rape is a strict liability crime (I) Consent is not relevant (though may be mitigating factor in sentencing) (II) Mistake-of-Age defenses are generally not allowed Some jurisdictions allow reasonable mistake-of-age defenses People v. Hernandez (D had sex w/ girl 17 years and 9 months old, honestly believing she was of agecourt held this was an allowable defense) Most jurisdictions do not Garnett v. State -- (20 year old retarded man impregnates 13 year old girl, court would not allow a reasonable mistake-of-age defense)
D. Issues with statutory rape i. Legacy of times when rape was a property crime ii. Criminalizes what might be a consensual act

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ii. Criminalizes what might be a consensual act iii. The only strict liability crime with such potential consequences for D (I) Jail time (II) Must register with sex offender registry
III. Forcible Rape A. In General i. Successful prosecution required proof of (I) Nonconsent, AND (II) The sex was secured by force, OR (III) The threat of force ii. The concepts are distinct and must be evaluated separately (I) Two persons may consent to sex that includes force (not rape) (II) A female may not want to have sex but she may acquiesce to an act performed without force (may be rape) iii. Common Law (I) Traditionally, intercourse obtained through a non-physical threat was not forcible rape Most statutes have gotten rid of this requirement (II) Traditionally, elements of nonconsent and force merge The male's use or threat of grave force generally proves both elements

B. Nonconsent i. Consent (I) Must be given freely Cannot be given in response to coercion or threats (II) May be understood as internal (state of mind) or external (expressed wishes or acts) Internal Can result in miscalculation by the male -- he may honestly believe she wants sex when she does not External Less ambiguous, but should courts require words? Are acts enough? Can acts be misunderstood or misinterpreted? (III) Issues Should all forms of nonconsensual sex be criminalized? How should nonconsent be proved, without reinstituting the requirements of force and resistance? Should some or all nonforcible forms of prohibited nonconsexual intercourse be graded as a lower degree of rape than the forcible variety? ii. Fraud (I) Fraud in the inducement -- does not vitiate consent A seducer is not a rapist in the common law Deceptive "sales techniques" are not rape If the victim knows she is consenting to sexual intercourse, it is not rape because the fraud was in the INDUCEMENT (II) Fraud in the factum -- does vitiate consent If she is unaware that she has consented to sex (under anesthesia) If she believes the man she is having sex with is her husband
C. Force and Resistance i. Common Law (I) Traditionally FORCE was the force likely to cause serious injury or death (II) Resistance must be "to the utmost" and it must be PHYSICAL Verbal resistance is not enough Resist until she is overcome by force, fright or exhaustion

ii. Criticisms of the Force/Resistance Requirement: (I) Force Moderate force would not support a rape conviction under traditional common-law standards A lack of force would not support a rape conviction even when the female does not consent State v. Berkowitz -- the case that gave rise to sexual assault statutes (the rape conviction overturned for lacking evidence that force was used against V) (II) Resistance

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(II) Resistance Dangerous to resist Women are trained & told not to resist rapists Some women freeze
D. Fear of Force vs. Threat of Force i. Verbal or nonverbal threats (I) Evaluated by an objective standard (II) Would a reasonable person have been afraid ii. Not enough to show the victim feared bodily injury if she resisted (I) This is subjective (II) Unless D knew of his V's special sensitivity and took advantage of it iii. Both components must be satisfied under traditional forcible rape doctrine (I) She must have had a subjective apprehension of harm AND some conduct by the male that put her in reasonable apprehension of her safety (II) Unreasonable fears are not enough, unless the male KNOWINGLY exploited them State v. Rusk -- court of special appeals held that there was no evidence to support her fear that Rusk would have harmed her (reversed by the Court of Appeals later)

IV. Mens Rea and Actus Reus Requirements for Rape A. Rape is a GENERAL INTENT crime i. D must only have the intent to have sex, does not require the intent to have NONCONSENSUAL sex ii. Mens Rea: intent to have sex iii. Actus Reus: had sex B. Consent defense i. actus reas was there consent? ii. mens reas did D believe there was consent? (I) honest and reasonable belief always a defense (II) honest and unreasonable belief not a defense This is unreasonable but my client believed it. Example: Director of Public Prosecution v. Morgan Argue that rape should be a specific intent crime and one cannot commit rape when they did not intend to have intercourse w/o consent. Even though a reasonable person would not think intent was given in this specific situation they thought rape was consented to. 4 guys and husband rape wife View rape as specific intent crime requiring that D know of victims lack of consent in order to convict. Allows unreasonable mistake as defense. C. Consent Defense is not applicable when: i. V lacks the capacity to consent (I) unconscious (II) mentally retarded (III) Too young D. Issues with the General Intent mens rea requirement i. Does not allow for the mentally retarded or intoxicated individuals to claim a "lack of specific intent" defense ii. Counter to that: the harm of rape is in the act against the victim, not the mental state of the actor -- his mental state is irrelevant in assessing the harm to the victim and the resulting harm to society (utilitarian argument) (I) Retributionists are uncomfortable with this because his intent in vital to assessing his moral culpability for the offense iii. Attempted rape is a specific intent crime, so paradoxically the mens rea requirement for attempted rape is stricter that for completed rape
Theft Crimes I. Generally: A. All consolidated into general theft crime i. Reasoning so that D cannot avoid conviction by saying it was embezzlement not fraud ii. Duress is a defense to theft II. Larceny

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II. Larceny A. Root of all modern property crimes B. Definition/Elements: i. Trespassory ii. Taking and (actus reus) iii. Carrying away of iv. The valuable personal property v. of another vi. With the intent to deprive the person entitled to possession of the property (mens rea) vii. permanently C. Possession, not ownership is key i. Ex: Pawn shop owner has possessory interest even though D is actual owner of the item. (D can be found guilty of theft) III. Robbery A. Definition i. (1) Larceny from a person, (2) in his presence (3) by force or threat of force. ii. Force (I) Minimal violence is all that is needed Administration or drugs or alcohol as to render victim helpless can be force sufficient for robbery (II) Threat of immediate force at 3 rd person can suffice as force EX. man and woman walking up street and def points gun at man your money or her life enough to be robbery. (III) Taking must be accomplished by force or by causing the victim to fear the possibility of immediate force (FORCE OR FEAR) Unreasonable fear is sufficient in most jurisdictions iii. Presence (I) The taking must be from the person or from the immediate presence and control of the victim (II) Can be broadly drawn Example: You tie up farmer in his barn and go into his house and steal things. iv. Person (I) Cannot rob a corpse because you can't put a corpse in fear (only larceny against a corpse) B. Armed robbery i. Hidden weapons can count ii. Sometimes pretending you are armed can count iii. Example - State v. Mejia (I) D shoots victim to get his $750 back (II) D accused of murder-felony when robbery was predicate felony (III) Since getting rid of predicate felony will make murder charge go away use claim of right defense, saying your client believed property was his (IV) Policy issue: court wants to stop forcible self -help that might lead to death IV. Burglary A. Strictly speaking not necessarily a theft offense i. Public Policy: right of person to have a peaceful enjoyment of his home B. Common Law Elements: i. Breaking and entering of a dwelling ii. of another iii. at nighttime iv. with the intent to commit a felony (I) Must exist at time of breaking/entering or it is NOT common law burglary C. Breaking and Entering i. Actual Breaking: (I) If the door or window is wide open, there is no breaking, but if they open an interior door that is the breaking ii. Constructive breaking (I) Maid given key but comes at 3am D. With the Intent to Commit a Felony i. Rape or Murder could be predicate felonies for burglary ii. Defense: defend predicate felony intent iii. Does not matter if felony is successful (I) Only intent is important E. Statutory Modifications to Burglary i. Doesnt necessarily need to be a dwelling, can be a business as well

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i. Doesnt necessarily need to be a dwelling, can be a business as well ii. Doesnt need to be at night iii. Some have even gotten rid of the breaking and entering requirement V. Claim of Right Defense A. Plainly: i. I believe this is my property negates mens rea ii. A person who takes property to collect on a debt, or who for some other reason feels he or she has a right to the property, has no intent to permanently deprive another person of the property and therefore, has no committed larceny B. Use i. Defendants belief in entitlement can provide defense ii. Defense can be made if honest belief is held for right to the property (I) Even if the belief was unreasonable iii. Courts moving away from letting this be a defense for robbery (due to the forcefulness) iv. Policy concern: (I) Courts want to stop forcible self-help that might lead to death (state v. mejia) C. Court's Willingness to Accept i. Courts most likely to accept it in terms of an accidental property (accidently took someone elses raincoat). No intent to deprive someone ii. Note in larceny by stealth, courts more likely to accept claim of right defense Example: repossessing cars Because there it is much less likely to result in a (potentially violent) confrontation VI. Other types of Larceny (less important) A. Larceny by Trick i. All elements of larceny PLUS - When D uses deceptive means to obtain possession, but not title or ownership, of anothers personal property ii. Ex. (I) Asking to test ride car and then stealing it (II) May I hold your luggage for a minute? Then runs off with it
B. Embezzlement i. Elements: (I) Fraudulent (II) appropriation (III) of property of another by one who has been (IV) entrusted with possession ii. Fraudulent = intent to deprive, specific intent needed to deprive another of property, knew property was not his iii. Appropriation = use of property in a manner inconsistent with what the owner has authorized iv. Entrustment = special legal relationship that gives special right of access to the thing which has been appropriated (I) Defendant obtains possession of property in fiduciary relationship employee (II) Claim of right is a defense (III) Embezzler always has lawful possession followed up by illegal conversion C. False Pretenses i. Obtaining title to property by lies ii. Five elements: (I) Misrepresentation by D (II) of a present or past material fact (III) with the intent to defraud the victim (IV) where the victim relies on the misrepresentation (V) in transferring title to some property iii. Requires belief by victim that the misrepresented fact is as D represents it (I) D knew misrepresentation was false, or did not know whether it was true iv. Requires intent to defraud (I) D intended to take something he knew belonged to someone else or to which D had no right v. Misrepresentations (I) Opinions arent misrepresentations: Opinions by experts may be held to higher standard (II) The fact misrepresented must be material in order to support a conviction for false pretenses

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(II) The fact misrepresented must be material in order to support a conviction for false pretenses EX. If you give me your luggage, I will pay you next week and then doesnt pay. EX. Shopper switches price tags Causation I. General A. What is causation? i. Analytically, an ingredient of a crime's actus reus. The link between D's act and the social harm. B. Role in Criminal Law i. Principles of causation assist us in deciding who or what among various people and forces existing in the world should be held responsible for resulting harm. ii. Causation is the instrument society employs to ensure that criminal responsibility is personal. C. Criminal vs. Tort Law i. In CRIMES, the bad result may or may not have to happen. Criminal law seeks to determine whether and to what extent a wrongdoer ought to be condemned by the community and have his liberty restricted. A more direct causal link between D and the harm must exist for criminal liability. ii. In TORTS, the bad result must occur or there is no damage from which to sue. Tort law seeks to identify the most suitable party on whom to place financial responsibility for negligently or innocently caused harm. (I) See Commonwealth v. Root (refusing to find D liable for his friend's death when it occurred while they were both drag racing -- specifically refusing to extend the tort concept of causation to the connection between D's participation in drag racing and V's death) II. Determining Causation A. Actual Cause (cause-in-fact; factual case) i. "but-for" (sine qua non) test -- but for D's voluntary act, would the social harm have occurred when it did? (I) If yes, then D is an actual cause of the result ( MPC 2.03(1)) (II) Limited use test -- functions to exclude certain forces from potential responsibility for ensuing harm D may not be held responsible for social harm unless the prosecution proves beyond a reasonable doubt that D was a (not necessarily "the") but-for cause of the harm (III) Is not automatic liability D must still have mens rea D must also be the proximate cause of the harm ii. Issues (I) Causation without mens rea D angers V, who walks into the street and is hit by B -- D is a cause, but had no mens rea to kill V (II) Mens rea without causation D1 intends to kill V and shoots at him, but misses; D2 shoots and kills V accidentally and simultaneously -- D2 lacks mens rea, D1 lacks causation (III) Multiple actual causes Accelerating results D1 poisons V, D2 shoots V while he is dying of poison If the D can be shown to have accelerated the death, even if V would have died anyway, he may be convicted of murder. See Oxendine v. State (acquitting D because the prosecutor did not show he had accelerated his son's death by beating him after he received a fatal beating from X) Concurrent sufficient causes D1 and D2 both shoot V fatally -- V's death would not have occurred when and how it did (simultaneous mortal wounds) without the actions of both Ds Both actors may be convicted of murder. See State v. Batiste (A shot B 3 times, bullet passed through lungs and heart, and then X shot B at close range in the forehead; A is guilty of voluntary manslaughter as the law "will not stop" in such a case, to measure which wound is the more serious, and speculate upon which actually caused the death") Obstructed Cause D1 nonfatally shoots V in the stomach; simultaneously and independently D2 shoots V three times in the head. D1 is not the cause of V's death, D2 is. D1 would be guilty of attempted murder. B. Proximate Cause (legal cause) i. Direct Cause (I) Intentional Crimes -- Unintended Victim ("Transferred Intent") A aims at B but misses and kills C. A is guilty of the murder of (or battery of, etc) C -- the intent to do the crime (murder, battery, arson, mayhem) transfers to a different victim

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do the crime (murder, battery, arson, mayhem) transfers to a different victim State v. Gardner (A shot at B with express malice aforethought but accidentally hit and killed C. "We assume that our lawmakers have felt, as did Lord Coke and as do most authorities today, that a man's crime is no less heinous because he happens to kill a different person than he intended to kill." But see State v. Amaya-Ruiz (manslaughter of unborn child cannot be established solely on basis of murder-type mens rea directed at mother, as statute explicitly states that in addition there must exist knowledge or recklessness vis-a-vis the unborn child) MPC 2.03(2)(a) -- holding that it makes no different that a different person was killed (II) Intentional Crimes -- Unintended Manner Three examples 1. A shoots at B with intent to kill, meaning to hit him in the heart but hitting him in the head Direct Cause. A is criminally liable. 2. A shoots at B with intent to kill but misses, causing B to turn north when he would have gone south; B is hit by lightening and dies Intervening Cause. A is (probably) not criminally liable. 3. A, shooting at B with intent to kill, merely wounds him; but the doctor who tends B's wounds negligently treats him and death results Intervening Cause. A may be liable. See below. MPC 2.03(2)(b) -- leaving the question of whether the actual result is "too remote or accidental in its occurrence to have a just bearing on the actor's liability or on the gravity of his offense" up to the jury ii. Intervening Causes (I) In General Courts distinguish between cases where the intervening act was a coincidence from those in which it was a response to D's prior actions Coincidence -- D's act puts V in a certain place at a certain time, because of which it was possible for V to be acted on by the intervening cause Response -- The intervening act is a response when it involves reaction to the conditions created by the defendant (II) Three Types Intervening Acts of the Victim [consider foreseeability, responsibility of victim, immediacy of the acts] Voluntary Acts 1. Rex v. Beech (D was held liable for injury to V when he broke into her house and trapped her in her room, and she jumped out of her window to escape him) a. Rex v. Valarde (same, except V died) 2. Stephenson v. State (D was convicted of second degree murder for V's death when he inflicted nonfatal wounds on her during a 2-day sexual assault, she took a nonfatal amount of poison which combined with her wounds killed hermajority depended on Rex v. Beech for precedent) 3. State v. Bauer (D was convicted of second degree murder and fetal homicide for V's death and the death of her unborn child when he brought a gun to the woods in a suicide pact, changed his mind, but didn't take the gun away and she shot herself) 4. Shirah v. State (D was convicted of criminally negligent homicide for the death of a friend by drug overdose when he provided the friend with morphine and was present when it was consumed) Involuntary Acts 1. Madison v. State (D threw hand grenade at Couch, who instinctively kicked it towards V, who was killedD was held liable for V's death) Intervening Acts of a Third Person Responsive Interventions 1. Medical treatment by a doctor. a. A is liable for B's death unless the doctor's treatment is so bad as to constitute gross negligence or intentional malpractice. b. A shoots B, which puts him in a coma. B, brain-dead, is removed from life support by C, the doctor. C is not the legal cause of B's death.

Coincidental Interventions 1. People v. Kibbe (Ds were held liable for V's death after they got him drunk, robbed him, and left him by the side of the road at night in December in upstate NY, where he was struck and killed by C. C was not a superseding intervening cause.)

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was struck and killed by C. C was not a superseding intervening cause.) 2. People v. Rementer (D was held liable for V's death when she fled from him and was struck and killed by a bystander's car) Intervening Acts of a Non-Human Source Unforeseeable Acts 1. People v. Rockwell (D was not held liable for V's death when he attacked him and left him wounded in a field, where he was killed by a horse's kick) 2. Bush v. Commonwealth (D was not held liable for V's death when he attacked V with intent to kill, and V was sent to the hospital where he caught scarlet fever from his doctor and died) Foreseeable Acts 1. United States v. Hatatley (D was held liable for V's death when they left him unconscious and shirtless in a freezing, remote desert wash, where he died) 2. Bishop v. State (D was held liable for V's death when he shot him, requiring surgery, during which V died of a pulmonary embolism) Attempt I. Generally A. Elements i. Intent to do an act or to bring about certain consequences which would in law amount to a crime, AND ii. An act in furtherance of that intent which goes beyond mere preparation B. Main Concern: i. How do you draw a line over which defendant may be convicted of attempt that also distinguishes between mere thought or preparation and attempt? ii. Purpose: not to deter the commission of completed crimes (though that is an element), but to subject to corrective action those individuals who have sufficiently manifested their dangerousness (Wayne LaFavre; Model Penal Code art. 5) C. Development i. Defined by statute in most jurisdictions (MPC 5.01) ii. "Attempt is only one of several ways in which criminal law can reach conduct merely tending towards the doing of some harm otherwise proscribed by law" (LaFavre) (I) Ex. Burglary, possession-type crimes D. How to Punish i. Model Penal Code -- punish as severely as the completed crime ii. Federal Sentencing Guidelines -- punish less severely, unless D completed all acts necessary for the substantive offense (I) "Complete but Imperfect" (II) "Incomplete" II. Mens Rea and Actus Reus A. Mens Rea -- intent to do an act or to bring about certain consequence which would in law amount to a crime (specific intent) i. Result Crimes (I) In General A person is not guilty of an attempt unless her actions in furtherance of the prohibited result are committed with the specific purpose of causes the unlawful result (II) Special Homicide Problems Attempted Felony Murder -- not a cognizable offense Attempted Manslaughter 1. Voluntary -- cognizable offense 2. Involuntary -- not cognizable (it is illogical to say a person can intentionally commit an unintentional crime) ii. Attendant Circumstances (I) Ex. D attempts to have sex with V, not knowing she was underage. B. Actus Reus -- an act in furtherance of that intent which goes beyond mere preparation i. Tests (I) Last Clear Act A criminal attempt only occurred when D performed all of the acts necessary to commit the offense Ex. Attempted Arson does not occur until D actually sets fire to the building Great bright line rule, poor for prevention of substantive crime

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Great bright line rule, poor for prevention of substantive crime (II) Proximity Approach (Oliver Wendell Holmes) Proximity test: D must come physically close to completing the crime Ds conduct need not reach the last act but must be "proximate" to the completed crime. (III) MPC Approach: Substantial step requirement (ASSUME ON EXAM) Act or omission constituting a substantial step in the course of conduct with the plan to culminate in the actual crime Must be an act corroborative of the criminal purpose: Emphasis is on what actor has already done versus what the actor has done, and what remains to be done Requires firmness of criminal purpose Conduct may be assessed in light of Ds statements Substantial step factor must be strongly corroborative to the actors purpose Must be unambiguous or def must have a very good claim to make that it wasn't an attempt Examples: Laying in wait, searching for or following the contemplated victim Enticing or seeking to entice the contemplated victim into going to the place contemplated for its commission Reconnoitering the place contemplated for the commission of the crime Unlawful entry of a structure, vehicle or enclosure contemplated for the location of the crime Possession of materials to be employed in the commission of the crime Soliciting an innocent agent to engage in conduct constituting an element of the crime III. Policy issues A. Rationale: i. General theory behind inchoate crimes is we want to punish crimes even if they don't succeed the view is the person that seeks to commit harm is potentially dangerous and if they are left unpunished they will try to succeed again (I) Idea is that person attempting to commit crime means that the person is a threat (II) Can we get this person off the street before they commit a crime (III) Also, theres the aspect of deterrence (IV) We want to be able to stop an attempt early enough in the process so the harm doesn't happen ii. Provides a legal basis for law enforcement officers to intervene in time to prevent a completed crime B. Major Issue: How do you draw a line that also meets the following goals? i. Distinguish between mere thought and attempt Many acts will be indistinguishable ii. Also want to give opportunity to withdraw freely and voluntarily Give incentive for this
IV. Abandonment or Renunciation A. Traditional View: i. Abandonment and renunciation impossible when line crossed (proximity view) ii. Example: People v. Staples (I) Man is drilling hole from apartment into the bank, the cops notice and he stops (II) Court decided on traditional view but if with a newer court the result would have been the same because there was no genuine change of heart B. Modern view: i. Possible defense unless motivated by: (I) Discovery or fear discovery will not allow someone to claim abandonment (II) Difficulties of practical matters making crime impossible will not allow someone to claim abandonment ii. Modern Penal Code: It must be the result of a genuine change of heart under circumstances manifesting a complete and voluntary renunciation of the criminal purpose V. Defense to Attempt: Impossibility A. Factual Impossibility -- the intended substantive crime is impossible of accomplishment merely because of some physical impossibility unknown to the defendants i. Not a defense, because the defendant's mental state is the same as that of a person guilty of the completed crime ii. Examples:

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ii. Examples: (I) V collapsed in D's arms while dancing; D took her out to his car and had sex with her, thinking she was drunk when she had actually died. (Attempted Rape) (II) D put a gun to his wife's head and pulled the trigger, but the gun was unloaded. (Attempted Murder)
B. Legal Impossibility -- what D set out to do was not criminal i. True legal impossibility (I) This is a valid defense (II) An action is simply not a crime Example: No such crime not to wear a bowtie, no way anyone can be prosecuted People v. Jaffe (overturning a man's conviction of receiving stolen property because the property he received wasn't stolen, even though he thought it was) (III) You cannot be convicted of something that is not a crime at all ii. Mixed legal/factual impossibility (hybrid) MPC APPROACH (default on exam) (I) Traditional view treated as true legal impossibility (II) Modern view Focus on would it have been a crime if the facts were as D assumed If the facts could have been as the D believed them to be hes guilty of attempt (this has swept the country) Example: If you shoot a dead body and you dont know its dead, its murder or attempted murder. Since murder requires the taking of a life because the body was already dead but the modern view is that attempted murder can be found here because we want to focus on this question would this be murder or attempted murder if they facts were to be assumed Examples: People v. Dlugash D shot man who may have already been dead People v. Thousand Cop poses as 14 year old online to catch sexual predator

Solicitation I. Definition A. Elements i. When one invites, requests, hires, or encourages another to commit an offense ii. With the intent (purpose) that the other person commit the acts constituting a crime B. General i. Model Penal Code: It is immaterial that the actor fail to communicate with the person he is attempting to solicit (I) But see State v. Cotton (refusing to convict D for solicitation since his wife never received his letters asking her to intimidate her daughter into not testifying in his sexual abuse trial) ii. The crime solicited for does not need to be committed C. Rationale i. Solicitation (I) Provides the basis for timely law enforcement intervention (II) Permits the criminal justice process to deal with individuals who have indicated their dangerousness (III) Avoids inequality of treatment based on a fortuity beyond the control of the actor ii. Two Views (I) Solicitation is less dangerous than the objective crime because the solicitor does not constitute a menace in view of the fact that he has manifested an unwillingness to carry out the criminal scheme himself (II) Solicitation is more dangerous than a direct attempt because it may give rise to cooperation among criminals which is a special hazard D. Merger i. Solicitation evaporates quickly merges with substantive offense (I) Only survives when the solicited party refuses or ignores the solicitation Example: if car was stolen II. What is required A. Actus reas i. Normally verbal, i.e. Would you help me steal this car? ii. It is not necessary that the act of solicitation be a personal communication to particular individual, but the

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ii. It is not necessary that the act of solicitation be a personal communication to particular individual, but the solicitation needs to be reasonable specific to a specific group against a specific set of victims (I) State v. Schleifer (union organizer giving speeches soliciting people to commit crimes of murder and robbery against "scabs" is solicitation) (II) People v. Quentin (it is not criminal solicitation to make a general solicitation by publication to a large indefinable group) B. Mens rea i. There has to be actual intent that the offense occur III. First Amendment A. May raise constitutional issues under First Amendment B. First Amendment does not bar prosecution for such crimes i. Planned Parenthood v. American Coalition of Life Activists (upholding a civil jury's verdict against antiabortion activists who had published "wanted" posters on the web, along with names and addresses for doctors and a scorecard for when one of them was killed) ii. Brandenburg v. Ohio (holding that the first amendment only protects speech advocating violence as long as it does not incite and is not likely to produce "imminent" criminal acts) IV. Defense A. Majority View (MPC Approach) i. Renunciation is a defense (I) Requires renunciation of criminal intent; AND (II) Preventing solicited act through persuasion or other means B. Minority View (traditional common law) i. No defenses allowed C. Impossibility is NOT a defense (see People v. Thousand, under legal impossibility above) Accomplice Liability I. In looking at what is required A. Actus Reas i. Did person aid or encourage by act or omission? ii. Words may be enough if they are encouragement or approval B. Mens Rea i. Must be actual intent to aid, assist, or encourage the crime ii. Aid need not be substantial iii. One can be found to aid criminally negligent conduct as well iv. Knowledge that act will facilitate crime (I) Majority view this is not enough (II) Minority view this is enough II. Traditional View Common Law A. Four categories of actors i. Principle in the first degree (I) Those who actually engage in the act or omission that constitutes the criminal act ii. Principle in the second degree (I) Persons who aid, command, or encourage the principal and are present at the crime This may be constructive presence (aiding and abetting from a distance) iii. Accessory before the fact (I) Persons who aid, abet, or encourage the principal but are NOT present at the crime iv. Accessory after the fact (I) Persons who assist the principal after the crime III. Modern view MPC Approach A. Three categories of actors i. Principal (I) Merges two in traditional view (II) One who commits the actus reus (with or without assistance of an accomplice) ii. Accomplice (I) One who assists or encourages the carrying out of a crime (II) Example: get away driver (III) Distinction between purposeful and knowing assistance a. Majority View requires purpose i. Accomplice cannot be convicted without proof that the aid or encouragement provided by D was given purposefully

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encouragement provided by D was given purposefully b. Minority View require only knowing iii. Accessory after the fact (I) Similar to obstruction of justice B. Principle and accomplice are both liable for the same crime sometimes special circumstances were accomplice would be liable even if hes not a principal (marital rape exemption example) IV. Special Issues A. Person not legally capable of being principal may be guilty as an accomplice Husband encouraging rape of wife B. Person whose conduct is inevitable in commission of crime Customer cannot be prostitutes accomplice C. Doctrine of innocent agency Sometimes an accomplice can be guilty even though the principal is not D. Foreseeability of Other Crimes Accomplice liability extends to acts of the principal in the first degree which were a "natural and probable consequence" of the criminal scheme the accomplice encouraged or aided V. Defenses A. Lack of Actus Reus. i. No aid given. Passive behavior, failure to intervene. No duty to rescue. ii. The aid given was not material. B. Lack of Mens Rea. i. The aid given was not knowing or purposeful. C. Withdrawal. i. Requires the timely withdrawal of the aid given and communication of repudiation. D. Lack of Foreseeability of Other Crimes. i. The crime in question must be the natural and probable consequence of the criminal enterprise the accomplice intended to aid.

VI. Examples A. US v. Buttorff i. Two Ds encourage people to commit fraud on their taxes. Court says you cannot advise someone to break the law. ii. Issue between advocacy speech and inciting speech -- Court says this is inciting iii. The more specific and in context it is, the more of a deciding factor it may be because there is evidence of giving away criminal information. B. Wilcox v. Jeffery i. Reporter aids a foreign saxophone player to play at a concert ii. Introduces causality problem 1. Collectively everyone in the audience was a factor C. State v. Gladstone i. D pointed an undercover cop in the right direction for pot ii. Is this enough evidence to call him an accomplice? iii. Knowing vs. purpose D. Commonwealth v. Huber i. Just because you notify cops doesnt mean you withdraw from act/crime 1. In this case he didnt take back the rifle he provided
Conspiracy I. Generally A. A combination between two or more persons formed for the purposes of doing either an unlawful act or a lawful act by an unlawful means. i. A means for preventive intervention against persons who manifest a disposition to criminality (I) Attacks inchoate crime at a far more incipient stage than attempt ( agreement!) ii. A means of striking against the special danger incident to group activity (I) A means of sanctioning "antisocial potentialities" B. Elements i. Agreement between two or more people [the key to conspiracy] (I) Purpose to enter into that agreement ii. An overt act in furtherance of the agreement (I) Minority View (Common Law) not required iii. Purpose to promote the unlawful act that is the object of the conspiracy (I) State v. Burnham -- finding that even acts which are immoral or dishonest, but not illegal, may be

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(I) State v. Burnham -- finding that even acts which are immoral or dishonest, but not illegal, may be "unlawful" for the purposes of conspiracy iv. Knowledge requirement (I) Majority View: Knowledge that the unlawful act is indeed unlawful not required (II) Minority View: knowledge is required C. Distinguish between Accomplice Liability and Conspiracy i. Accomplice liability can only happen if the crime has occurred or was attempted ii. Have to at least attempt before we get Accomplice liability D. Separate crime from the target offense Does not merge! (assume this on exam) A. Unlike attempt which merges B. Conspiracy does not merge and the defendant can be tried for two different offenses C. MPC view - would merge but most jurisdictions reject this and view it as a separate charge E. Wharton Rule A. How do we handle offenses that require more than two people? i. Common Law 1. Agreement to commit such offenses do not constitute conspiracy ii. MPC Approach (assume this on exam) 1. Concerned with punishing the conspiratory behavior before the harm occurs II. Actus Reus: The Agreement A. All-Important in Conspiracy B. Not a "meeting of the minds" as in contracts, but at least a tacit understanding i. State v. Mapp ii. May be inferred from the facts of the case (circumstantial evidence) iii. Conspiracy may be found where: (I) Ds have no direct dealings with each other (II) Ds do not know all the identities of the co-conspirators (III) Ds were not aware of the details of the plan of operation (IV) All Ds were not in on the plan from the beginning III. Issue of Men Rea A. Intent to Agree Distinguished i. The state of mind of agree does not refer to the act of conspiring, but to the fruits of the conspiracy B. Intent to Achieve Objective i. The mental state required is an intent to achieve a particular result which is criminal or which though noncriminal is nonetheless covered by the law of conspiracy ii. Thus, conspiracy as a specific intent crime (I) Example: If A and B agreed to take C's property, this is not a conspiracy to commit larceny unless A and B had the intent to permanently deprive required for commission of a larceny (II) Thus, there is no conspiracy to commit a crime which is defined in terms of recklessly or negligently causing a result C. Providing Goods and Services i. Issue: under what circumstances the supplier of goods and services to a known criminal undertaking becomes a party to the conspiracy (I) When the circumstances suffice to show that the supplier shared the intent to achieve the criminal objective Example: United States v. Falcone (holding that the seller of innocent goods does not become a conspirator merely because of his knowledge that the buyer plans to use them in the commission of a crime) Example: Direct Sales Co. v. United States (distinguishing Falcone in the cases of suppliers of restricted commodities when D was convicted of conspiring to violate narcotics laws by selling morphine in such quantities to a certain doctor that it "must have known" violations were going on) ii. Intent may be shown by: (I) The quantity of the sales (II) The continuity of the relationship between seller and buyer (III) The seller's inflated charges to the buyer (IV) The seller supplied goods of no legitimate use D. The Corrupt Motive Doctrine i. People v. Powell (ruling that conspiracy agreements must be entered into with an evil purpose) ii. Many courts utilize a malum in se - malum prohibitum distinction and recognize a claim of good faith only if the criminal objective of the conspiracy was not inherently wrong

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the criminal objective of the conspiracy was not inherently wrong IV. Overt Act Requirement A. Must have an act in furtherance of the conspiracy i. Need not go beyond mere preparation ii. Need not be unlawful B. Rationale: Used to cover a genuine conspiracy from mere popping off i. Example: Yates v. United States (where convictions of Ds under the Smith Act was held to require an overt act in furtherance of the conspiracy, and even radical speech would be protected unless it showed a clear and present danger) C. Pinkerton Doctrine i. Conspirators may be liable for any act in furtherance of the enterprise ii. All foreseeable crimes connected to the conspiracy as long as one is a member of the conspiracy commits them iii. MPC Approach (assume this on exam) (I) Rejects Pinkerton Doctrine The only crime that is automatically liable is conspiracy itself V. Defenses A. Withdrawal i. Model Penal Code: withdrawal requires an affirmative act bringing home the fact of his withdrawal to his confederates, made in time for his companions to effectively abandon the conspiracy, an in a way which would be sufficient to inform a reasonable man of the withdrawal (I) Notice is insufficient unless it is given to all the conspirators (II) OR if he informs the authorities ii. Liability for actions of co-conspirators ends with withdrawal iii. Withdrawal just gets them out for the target offense, not the conspiracy iv. Passive non-action does not constitute withdrawal B. Renunciation i. Defense to conspiracy ii. Abandonment of criminal purpose and a thwarting of the success of the criminal conspiracy

XI. Prosecutorial Advantages A. Judge Learned Hand -- "Conspiracy is the darling of the modern prosecutor's nursery" B. Why? i. Liability applies earlier then it does for substantive crimes ii. Most conspiracy convictions are based upon circumstantial evidence (I) Prosecutors have a wide latitude in introducing evidence which even remotely tends to establish the conspiracy charged, because of the secret nature of conspiracies that makes finding concrete evidence a sometimes insurmountable task (Saith the Supreme Court in Blumenthal v. United States) iii. Admissibility of hearsay evidence (I) Any act or declaration by one co-conspirator committed during and in furtherance of the conspiracy is admissible against each co-conspirator Usually applied very broadly Casts doubt on defendant A that taints defendant B iv. Venue advantages (more choices) (I) D may be tried where overt act occurred or where agreement formed v. Joint trial and tainting of Ds C. Criticisms i. Vagueness (I) Professor Sayre -- "A doctrine so vague in its outlines and uncertain in its fundamental nature as criminal conspiracy lends no strength or glory to the law; it is a veritable quicksand of shifting opinion and ill-considered thought" (II) Justice Jackson -- conspiracy is an "elastic, sprawling and pervasive offenseso vague that it almost defies definition" (Krulewitch v. United States)

Justification I. Generally A. Says conduct is not wrongful B. Nature of justification is that the claim is grounded in an implicit exception to the prohibitory C. Objectively correct D. Was the person legally privileged to do a particular act?

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D. Was the person legally privileged to do a particular act? i. Self-defense ii. Crime prevention iii. Law enforcement II. Self-Defense A. Generally i. One who is not the aggressor in an encounter is justified in using a reasonable amount of force against his adversary when he reasonably believes that (a) he is in immediate danger of unlawful bodily harm from his adversary and (b) that the use of force is necessary to avoid this danger ii. Imminence requirement immediate peril or danger (I) Once aggressor withdraws, you must withdraw Try to keep bright line between self-help and self-defense Retaliation not permitted (II) An aggressor may gain a right to self-defense if D attacks him once he has withdrawn, or uses deadly force to escalate an initially nondeadly attack iii. Amount of Force (I) Must be reasonably related to the amount of force he seeks to avoid (II) In order to use deadly force, D must believe the aggressor is about to use deadly force against HIM iv. Reasonable Belief (I) Objective requirement (II) Mistaken reasonable belief is a defense i. Justice Holmes -- "detached reflection cannot be demanded in the presence of an uplifted knife" B. Retreat rule i. Majority approach (I) Retreat is not required before using nondeadly force (II) Retreat is not required before using deadly force against an aggressor you have a reasonable belief will kill you or do bodily harm to you ii. Minority/MPC approach (dont use on exam) (I) Retreat "to the wall" before using deadly force 1. Favored by legal profession 2. Only a few states have this rule in effect iii. Retreat from home is not required in any district (I) Example: People v. Tomlins D shot his son in his home, court said no duty to retreat iv. Accidental Injury to 3rd Parties (I) If A in proper self defense aims at his adversary B but misses B and unintentionally strikes innocent bystander C, he is not liable for C's injury or death C. Defending property i. One is justified in using reasonable force to protect his property from trespass or theft when he reasonably believes that his property is in immediate danger of unlawful interference, and that the use of such force is necessary to avoid that danger ii. Deadly force is never reasonable in the defense of property under the common law (I) Human life is more important than property to society (II) Some statutes ("Make My Day" laws or "Shoot the Carjacker" laws") allow for deadly force to protect one's car or place of business from unlawful intrusion iii. Deadly force is reasonable in defense of your home ("Castle Doctrine") if you believe the intruder intends to commit a felony or do harm to the occupants [recognized by the MPC] (I) Example: State v. Anderson (D was acquitted of murder in the death of an intruder into the home of some friends he was staying with, the court holding that the Castle Doctrine applies to invited guests); People v. Tomlins (II) Mantraps Mantraps may not be used to defend property (under MPC, mantraps may NEVER be used) Nondeadly mechanical devices such as spiked fences are justified to protect one's property Mantraps may be used to defend occupied dwellings in some states (III) Deadly force may be used in defense of others' homes ( State v. Anderson) D. Defend the life of another i. Requires reasonable belief (majority view) ii. Step in the shoes of another iii. Problematic when you misjudge who the aggressor is (I) "Reasonable Belief Test" would reasonable person believe that the person who he came to the aid was the victim (II) "Alter Ego Test" -- there is no privilege if you guess wrong

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(II) "Alter Ego Test" -- there is no privilege if you guess wrong Example: People v. Young (defendant guilty of battery for using nondeadly force against plainclothes policeman trying to make lawful arrest) E. Law Enforcement i. A police officer or a person aiding him is justified in using reasonable force to make a lawful arrest or to prevent an escape from custody of one already arrested (I) Example: Scott v. Harris (Supreme Court held that an officer was justified in "bumping" a fleeing felon's car to prevent harm to bystanders, even though it resulted in severe injury to the suspect) ii. Deadly force may be used against felons if it reasonably appears that the felon will otherwise avoid arrest or escape from custody (not applicable to misdemeanants) F. Battered Spouse Issue i. The issue of imminence ii. May be prepared to say that husband was a batterer, had a long history of physical abuse iii. What do we do in a case where the alleged batterer was asleep and killed? (I) No traditional notions of imminence iv. Is this self-defense or excuse (psychiatric, etc) v. Example: State v. Norman (I) Woman killed her abusive husband in his sleep (II) The court said there was no imminence so she was found guilty (III) All the evidence showed that she has time to do other things G. Objective v. Subjective Approach i. Objective Test Majority Approach 1. Reasonably prudent person 2. Honest and reasonable fear 3. Amount of force must be reasonable ii. Subjective Test Minority Approach 1. Favors sensitive people 2. Can be unreasonable iii. Many courts look at both objective and subjective standard (I) Physical attributes important to consider (small person? Strong?) iv. Examples: (I) People v. Goetz Men asked D for money on the subway, and he shot four people Two issues: Should the Sixth sense defense be allowed? Should the fact that they were armed (though Goetz didnt know) be a part of the defense? Defense strategy? Since there is no legal defense, make the jury hate the victims Get evidence in via courtroom drama Did a reenactment to make it more vivid for the jury Get something in front of the jury that is not a legal argument How was evidence admitted? Limited on evidence Victim must testify and when he goes you can cross examine Then you can impeach him and go towards the victims credibility Theoretically this is not a legal argument, but it influences the jury III. Necessity A. Generally i. Dealing with a choice of two or more evils, and choosing the lesser one out of necessity ii. You admit you did it and you were fully aware iii. Need honest belief (Model Penal Code) (I) Under the common law, usually confined to emergency situations resulting from natural forces (human agents = duress) B. Defense i. Greater harm/evil would result, so youre going it for the greater good (I) Example A is starving and steals B's food to save his own life A, in an emergency situation, kills B to save C and D A, a prisoner, breaks out of a burning prison to avoid dying But not to avoid being raped (State v. Reese) if he fails to turn himself in immediately 5 factors:

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5 factors: Prisoner must be faced with a specific threat of death, forcible sexually attack or substantial bodily injury There is no time for a complaint to the authorities There is no time to resort to the courts There is no evidence of force or violence used against prison guards or innocent persons The prisoner immediately reports to the property authorities when he attained a position of safety ii. Defense to murder very rare (I) Example Regina v. Dudley & Stephens C. Courts are wary of necessity defenses i. Ds who have a noncriminal third option may not use a necessity defense (A, starving, steals food from a grocery, but could have just as easily presented himself to a soup kitchen) D. Cannot be used as a protest some social policy for which you disagree i. Anti-Abortion ii. Example: United States v. Maxwell Puerto Rico (I) Court says there was no immediate harm and D could have been more politically active instead
Excuse I. Generally A. Concedes the wrongfulness of the act, but asserts that the actor should not be punished for her wrongful behavior, primarily because of psychological or situational involuntariness i. Examples (I) Automatism (II) Intoxication (III) Duress (IV) Entrapment (V) Insanity ii. Consequences (I) D's conduct was not the product of his voluntary effort, OR (II) D failed to perceive the nature or consequences of his conduct, OR (III) D does not know that his conduct or its results are wrong or criminal, OR (IV) D is so lacking in control over his conduct that it would not be proper to hold him accountable for it B. Potential excuses ones that involve the negation or actus reas or mens rea i. Negation of actus reas (defense even to SL crime) 1. Automatism 2. Involuntary intoxication ii. Negation of mens rea 1. Mental impairment 2. Even voluntary intoxication might be defense 3. Applies to crimes where specific intent is required 4. Burglary required of intent to commit a felony 5. Voluntarily intoxication person might have mens rea defense II. Automatism A. Meaning: a person not conscious of his actions (includes epilepsy, organic brain disease, some types of schizophrenic or acute emotional disturbances, sleepwalking, hypnagogic states) B. Uncommon in the case law, but generally: one who commits a crime in a clouded state between sleep and wakefulness is not guilty of a crime i. May include PMS or PTSD (some law review articles suggest this) ii. Does NOT include amnesia or voluntary ingestion of alcohol or drugs iii. A negation of actus reus iv. D must provide evidence proving his lack of consciousness C. Example: Regina v. Charlson (D, due to a brain tumor causing impulsive violent outbursts, hit his 10-year old son with a mallet and through him out of the window -- was acquitted) III. Intoxication A. Meaning: A "disturbance of mental or physical capacities resulting from the introduction of any substance into the body" i. Ie: intoxication may negate the specific intent to commit larceny or burglary, if D is too intoxicated to entertain the intent to take away the property permanently ii. Wayne LaFavre: "in order for intoxication to serve as a defense to a crime by blotting out some intent or knowledge which the crime requires, it is enough that the defendant, because of his intoxication, actually

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knowledge which the crime requires, it is enough that the defendant, because of his intoxication, actually lacked the requisite intent or knowledge" (Criminal Law) B. Issues i. How did D become intoxicated? (I) Voluntary i. Actor is culpable for his own intoxication ii. Alcoholism or drug addiction does not make ingestion of intoxicants involuntary (II) Involuntary i. Four instances: 1. Coerced into ingesting an intoxicant 2. Innocent mistake 3. Unexpected intoxication from a prescribed medication 4. Pathological intoxication ii. In what way does D claim that his intoxication affected his culpability? (I) Negate Mens Rea (II) Negate Actus Reus iii. Of what type of offense is D charged? (I) General Intent i. Voluntary intoxication is generally not a defense 1. People v. Velez (D puffed on a joint that was unknown to him laced with PCP and assaulted V with a deadly weapon while in a PCP-induced unconscious stateheld to be voluntarily intoxicated and criminally liable) 2. People v. Kelley (Michigan Supreme Court held that voluntary intoxication is not a defense to child torture, a general intent crime) ii. Involuntary intoxication is a defense (II) Specific Intent i. Voluntary intoxication may be a defense 1. Montana v. Egelhoff (D was found in the backseat of a car with his two friends dead in the front seat after a night of drinking and mushroom picking. Supreme Court held that it was not unconstitutional for a state to refuse to allow him to introduce evidence of his intoxication as a defense) 2. But see Lee v. State (Miss. Supreme Court refused to recognize voluntary intoxication as a defense even to specific intent crimes) ii. Involuntary intoxication is a defense (Model Penal Code) (III) Strict Liability i. Intoxication is not a defense, voluntary or involuntary, because there is no mens rea to negate in such offenses (Aliff v. State (involuntary intoxication not a defense to DWI) IV. Duress A. Definition: A person's unlawful threat which causes the D to reasonably believe that the only way to avoid imminent death or serious bodily injury to himself or another is to engage in unlawful conduct, and which causes D to engage in that conduct B. Rationale: D ought to be excused when he is the victim of a threat that a person of reasonable moral strength could not fairly be expected to resist. i. Courts say that duress crime is a voluntary act because there is a choice (I) D has mens rea (II) But they are thought to be less culpable because they did not have a fair opportunity to act lawfully C. Limited defense i. Usually require proof of an imminent threat (I) D has the burden of proof ii. Some states only allow when D is threatened with death or serious bodily harm (I) Many states do not allow this defense for murder i. Usually allowed for the lesser felony underlying felony-murder charges 1. A compels B at gunpoint to drive him to a bank to rob it; C is killed during the robbery, B is not guilty of the robbery and thus not of the felony-murder of C (II) May be a defense to assault, robbery, burglary, kidnapping, arson, prison escape, possession of a weapon iii. Not available to people who voluntarily put themselves in this situation (I) Example: State v. Scott (D lost case because he repeatedly put himself in the situation where he had to participate in aggravated assault he had reasonable opportunity to escape) iv. Not available to those who followed a superior's unlawful orders (I) Example: United States v. North v. Not available to those who were brainwashed

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(I) Example: United States v. North v. Not available to those who were brainwashed (I) Example: United States v. Hearst or United States v. Malvo

D. Traditional view i. Harm done should be less than harm threatened (I) Example - can steal if life is threatened (II) may not kill because thats an equivalent harm E. Some jurisdictions treat duress as a type of necessity (choice of evils defense) i. Maybe in danger of psychological or physical threat ii. Modern trend to relax this, what would a person of reasonable resolve do? (Model Penal Code) iii. Also, this is frequently governed by statute F. Threat need not be immediate i. Example: United States v. Contento-Pachon (an individual from Colombia thought a gang would kill his family unless he smuggled drugs into the U.S. was allowed to bring the defense even though the threat was not immediate) V. Entrapment A. Definition: Entrapment defense prohibits law enforcement officers from instigating a criminal act by persons otherwise innocent in order to lure them to its commission and to punish them B. Elements: i. Criminal design must have originated with law enforcement officers ii. The D must not have been predisposed to commit the crime prior to the initial contact by the government C. Goal of this defense: i. Want to distinguish between person who is already committing an offense versus someone who wouldnt have committed it if not for the government inducing the activity (I) Problem where to draw the line? D. Objective v. Subjective Approach i. Majority Subjective test Focuses on Ds predisposition (use this on exam) (I) Two step test: i. Was the offense induced by a government agent? ii. Is D predisposed to commit a particular crime? 1. Considered predisposed if D is ready and willing to commit the crime charged, whenever opportunity is afforded 2. Factors to look at disposition: The character or reputation of D Whether the govt made the initial suggestion of criminal activity Whether D engaged in activity for profit Whether D showed any reluctance Nature of govts inducement (II) Commended because: i. Attempts to distinguish between persons who are blameworthy and persons who are not ii. Allows incarceration of those who are more likely to commit crimes in the future (III) Criticized because: i. If the temptor was a private citizen, the conduct would be unquestionably criminal ii. It creates an "anything goes" rule for use against persons who can be shown by prior convictions to be predisposed iii. It obscures the important task of judging police behavior ii. Minority (MPC) Objective test Focuses on government agents conduct (I) Focuses on if the governments actions were outrageous (II) Judge decides under this approach (III) Criticized On its refusal to place any weight on Ds predisposition For creating a risk of acquitting dangerous chronic offenders by giving them immunity from prosecution simply because the government subjected them to inducements which might have seduced a hypothetical individual who was not so predisposed E. Examples: i. United States v. Russell 1. D was charged with manufacturing and selling drugs 2. Govt provided D with chemical to make the drugs ii. Jacobson v. United States 1. Got child porn through the mail but it wasnt illegal 2. Govt changed the standards and then went after him

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1. 2. 3. 4.

Got child porn through the mail but it wasnt illegal Govt changed the standards and then went after him Govt solicited him 26 times Courts tend to be influenced by outrageousness of government conduct

VI. Insanity A. Mental State of a D or prisoner relevant at three points i. At the time of the crime (I) If a person was insane when he committed the crime then those are grounds for acquittal of the charge (II) There can be medical experts but the law sets the standard (III) This defense is affirmative Must be raised by D and proved by a preponderance of the evidence ii. Time of Trial (I) Trial may not proceed if the defendant lacks the ability to participate in own defense (II) Cannot advise his attorney on relevant facts and decide strategy (III) Many decisions can only be made by the D iii. Time of execution [ in capital case] (I) Must be able to understand what death is and appreciate whats happening (II) May be unable to assist with appellate process (III) MD dilemma May have trouble thinking they would be helping them by killing them Have responsibility to their patients What is in the best interest of the patient? Life of insanity or death penalty? Execution cannot go forward if He is so lacking in mental ability as to not know whats going on because its cruel to execute someone who may not be aware He cannot assist in the appeal and clemency processes He cannot make peace with God B. Tests for Insanity i. MNaghten Test (we will use this on exam w/ both prongs) (I) Two prongs Cognitive Prong -- "D did not know the nature and quality of the act that he/she was doing" Inability by reason of mental disease to understand the nature and quality of the act What did the defendant understand at the time of his particular actions Very narrow: "D squeezed the victim's throat, thinking that he was squeezing a lemon" Right/Wrong Prong -- "D did not know that what he/she was doing was wrong" Ability to distinguish right from wrong Legal wrong, or moral wrong? "know" may be defined narrowly or broadly Narrow: formal cognitive knowledge Broad: affective knowledge -- "emotionally appreciate" the wrongfulness of the act Some jurisdictions that apply the "right/wrong" prong also apply the "deific decree" doctrine A mentally disordered individual who believes that she is acting on the direct command of God is deemed legally insane (II) What do we do with an individual that is part of a sub-culture that is radically different? Did the person have the capacity to understand, just that theyd have the ability to if they have the capacity, theyre deemed sane (III) Examples i. Mental abnormality including psychosis, neurosis, organic brain disorder or congenital intellectual deficiency 1. PTSD or Post partum psychosis ii. Probably not: 1. Gay panic, black rage, crappy-upbringing, PMS, Munchausen's by-proxy, or battered women syndrome (IV) Criticism i. Based on flawed psychology ii. Does not recognize degrees of insanity iii. Places "unrealistically tight shackles" upon expert psychiatric testimony iv. Disregards mental illnesses that affect volition ii. Irresistible Impulse Test (I) Inability to control behavior because of mental disease Focuses on volition rather than cognition

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Focuses on volition rather than cognition If you can control yourself in the presence of authority, then there probably isnt a requisite mental problem (II) Some jurisdictions dont accept (III) Most jurisdictions who adopt this are going to first use the MNaughten test If insane under that test, no need to go to this test iii. Durham Test Not responsible if actions are a product of mental disease or defect Only in New Hampshire iv. Model Penal Code (I) D is not responsible if at the time of his conduct as a result of mental disease or defect he lacked substantial capacity either to (A) appreciate the criminality of his conduct or to (B) conform his conduct to the requirements of the law C. Insanity defense is all over the map. No clear pattern/rule that we can say every state has adopted. i. Closest thing for a majority is the MNaughten test D. General Debate over whether or not a wide array of psychological, sociological and physiological conditions that do not rise to the level of insanity should nonetheless be considered as grounds for acquittal or mitigation E. Example: i. Clark v. Arizona 1. Insane man kills a cop 2. He was a paranoid schizophrenic ii. Jones v. US 1. Man institutionalized in DC for longer than his prison sentence would have been 2. Defense said b/c of mental disorder, was not able to understand he was a police officer 3. Some jurisdictions automatically hospitalize insane Ds

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