Shared Flashcard Set


Criminal Law
Common Law and MPC

Additional Law Flashcards




Duty Established By
Special Relationship
D created Peril
D undertook aid
Duty to Control 3rd Parties (spec rel)
MPC Mens Rea
Purpose - "conscious object" Knowledge - "awareness" to practical certainty Recklessness - consciously disregard a substantial and unjustifiable risk and disregard of risk is gross deviation ofreasonable standard of conduct negligence - should have been aware of subs and unjust risk, failure to perceive is gross deviation of reasonable conduct
Specific Intent Crimes

Sol's Attempts to Conspire Preemptively Leave Rob Burnt From Embezzlement









False Pretenses


Mistake of Fact and Defense - Common Law
General Intent: No mistake of fact/intoxication def. unless reasonable
Specific Intent:  Mistake of fact/intoxication allowed as defense if honest (not req'd to be reasonable)
Homicide (MPC)
Purpose (murder)
Knowledge (murder)
Extreme Recklessness (murder)
Recklessness (manslaughter)
Under EMED - and reasonably (manslaughter)
negligence (negligent homicide)
Homicide (C-L)
"Malice Aforethought"
  •  intent to kill/knowledge 2 prac certainty death will result
  • intent/knowledge SBH will result
  • Extreme Recklessness (depraved heart) to human life
  • Felony-Murder
Lesser Homicides (CL)
Voluntary Manslaughter -
  • Heat of Passion + intent to kill
  • Imperfect Defense
Involuntary Manslaughter
  •  Gross Negligence/recklessness
  • Misdemeanor Manslaughter
Felony Murder Rule

C-L Only


Felony is inherently dangerous

1.  crime in abstract or 2.  manner of commission


Agency Approach (Maj) - only applies when D or accopmplice kill


Prox Cause Apprch (Min) - guilty for killings which are prox causes (incl deaths by victims and police)


Merger Doctrine - for F-M to apply, underlying felony must have an independent felonious purpose other than causing SBH

MPC and Felony Murder Rule
MPC does NOT follow the F-M rule:
"reckless indifference to human life" presumed during some felonies, but must be proven by prosecution (BRAKES) - burglary, robbery, arson, kidnap, escape, sex assault
D can present evidence that he did not act indifferent to human life
basically look to see if D committed the felony with gross negligence, recklessness, etc., and consider any deaths separately from the underlying crime
Jurisdictional Distinctions of Homicide By Statute
1st Degree
  1. Felony Murder (arson, rape, robbery, burglary)
  2. PreMeditated
lapse of time, evidence of planning activity, motive, method of killing
2nd degree
All other forms (including lesser felony murders, "malignant heart", etc.)
Crime of Passion

Mitigates to Voluntary Manslaughter


1.  Provoked

2.  Provocation must cause reasonable person to lose self control

     (seeing adultery, being beaten up/robbed, sometimes words if conveying 'inflammatory info' such as news of adultury; physical characteristics of person, etc.)

 3.  D must not have cooled off

4.  reasonable person would not have cooled off

(age, gender, cultural background sometimes, physical )

MPC mitigating passion

Extreme Mental or Emotional Disturbance


Must be reasonable explanation from person in circumstances D believes them to be


reduces from murder to manslaughter (same statuts as reckless homicide)

Statutory Rape - CL
A.    Statutory Rape – strict liability (even for mentally retarded Δ)

1)    Sexual Intercourse w/ Someone not a spouse
2)    Person is under the age of statute
a)    Usually 16
3)    Mistake?
a)    Majority:  even reasonable mistake is not a defense
b)    Minority:  reasonable mistake is defense, but cutoff is 10 years old
Statutory Rape MPC
Under 10 years old
If < 16 and D is 4+ years older:  misdemeanor sexual assault
*allows sexual experimentation among contemporaries
Forcible Rape

(MPC and Common Law)

1)    Penetration (ejac not necessary)
2)    No consent to intercourse (also if unconscious/asleep/very intoxicated/mental defect)
     a)    Mens Rea:
          i)     Recklessness as to consent always suffices; sometimes negligence      suffices  
          ii)    If negligence:  would a reasonable person believe “no means no”
3)    Forcible Compulsion Requirement
          a)    Force/threat of force reasonably calculated to create and did in fact create fear of SBH
i)    Majority: victim ‘reasonably fears’ SBH
ii)    Minority:  unreasonable fear of SBH (but Δ is aware of fear and takes advantage of it)


Fraud and Rape
Fraud in Factum - no consent
Fraud in Inducement- consent (no rape)
*Note:  MPC:  rape recognized b/t gays and straight, as well as woman raping boy
anal and vaginal recognized (anal = "deviate sexual intercourse")
MPC allows affirmative defenses for <16, but not 10 and under
"corruption of minor" if complainant is <16 and D is 4+ years older
Larceny - elements
1.  Trespassory (wrongful, non-consensual)
2.  Taking (actual possession, not temporary custody)
3.  carrying away (not just shifting orientation, moving 2" suffices)
4.  of personal property (computer time didn't work)
5.  of another
6.  w/ intent to deprive (CL at the time, MPC any time)
7.  permanently

Larceny- Distinctions b/t MPC and CL


*Remember:  felony/misdemeanor distinction of $500

Common Law
•    intent to deprive had to occur at time of taking
•    lost/mislaid goods
o    theft only if intent to deprive occurred at outset, when Δ took the item
o    Had to know/have reasonable grounds that owner could be found
Continuing trespass doctrine – if there is an initial wrongful taking, and person is still in wrongful possession and later develops intent to deprive:  Larceny
•    Take car intending only to drive for a while, later decides to keep it.
•    Law says larceny.
o    Check if the state uses this doctrine.

MPC Approach
- intent to deprive at any point
*NO asportation requirement

    Lost/mislaid goods
•    Intent to permanently deprive at some point
          AND Δ failed to take reasonable measures to restore property to proper owner.
•    Change of heart rule only applies to lost/mislaid goods (you can return a larcened lost/mislaid good and not be guilty of larceny)
Larceny by Trick
Intentional Misrepresentation, causing owner to grant possession but not ownership or title
No trespassory taking, so not larceny
No false pretenses, b/c no title
*Must Convert the item by keeping for long time/selling/destroying it
False Pretenses
1.    Misrepresentation by Δ
2.    Of past/present material fact
        a.    Material- must have bearing on decision
        b.    Past/present – can’t be of future, but Majority says “present” because                       always said presently.
                   i.    Minority:  business would be encumbered, people afraid of                               charges b/c can’t meet contract; difficult to prove intent at time
c.    Fact – cannot be opinion
         i.    Cannot be “puffery” or opinions (unless expert opinion showing base in                        facts)
3.    W/ intent to defraud the victim
      a.    Knowledge statement is false or act w/ reckless disregard to truth or falsity
               i.    Aware of subs risk it is not true
4.    Aware property is not his
5.    Reliance on the misrepresentation by the victim (reliance not req’d to be reasonable)
6.    Transferring title to the object

*MPC  says false promises fall under false pretenses.  Common law:  false promises don't apply.
1)    Fraudulent
2)    Appropriation
3)    Of property
4)    Of another
5)    By a person entrusted with the possession of another
(Already in possession)
*3 elements for larceny are not required (trespass, taking, and carrying away)
•    Cannot take money entrusted with and use it even temporarily for own benefit.
1.    Larceny + (tres taking and carrying of another's prop w/ intent to deprive permanently)
2.    Taking is by force or by causing victim to apprehend imminent bodily force
          drugging qualifies
3.    From the victim or immediate presence or control.
* no claim of right defense for robbery
 *armed robbery when armed with dangerous weapon
Purse snatching:  only robbery if they notice, or are pulled, etc. (not if so quick they can't respond)
Robbery MPC
•        A person is guilty of robbery, if, in the course of committing a theft, he:
1.    Inflicts serious bodily injury upon another; or
             a.     Not purse snatchers
2.    Threatens another with or purposely puts him in fear of immediate SBH; or
3.    Commits or threatens immediately to commit any crime of the first or second degree
“in the course of committing a theft” is defined to include attempts to commit theft and immediate flight after an attempted or completed theft
Burglary (Old CL)
a)    Breaking
       i)    Actual breaking:  creation of opening (open totally closed window)
       ii)    Constructive breaking:  entry gained through threats or deception
b)    Entering
c)    Dwelling house
d)    Of another
e)    At night
f)    With intent to commit a felony

Burglary (New CL)
a)    Unauthorized entry
     i)    Enter store w/ intent to shoplift qualifies (would be unauthorized)
     ii)    Enter intending to shop, then decide to shoplift:  not crime.
   * as soon as any part of body enters structure
b)    Into building or structure (not necessarily a dwelling, includes airplanes/cars but not vending machines outside)
      if abandoned, 2nd degree in some juris.
c)    W/ intent to commit a crime (not just felonies)
*shared abode:  can't burgle own home, even if have roommates
*if you are landlord and rent entire house:  probably burglary

W/ intent to commit an offense, performs an act beyond mere preparation (intent=purpose/knowledge)


Why Punish?  Deterrence--if even an attempt is punished, might not try.  Don't want people to try (still have mens rea); those who attempt crimes need restraint

Attempt - tests MPC and CL

"Beyond Mere Preparation"


Substantial Step (MPC) (applies much earlier than prox test)

a.    must “strongly corroborate” Δ’s criminal purpose
b.    w/o negating sufficiency of other conduct  
           i.    looks backward in time, seeing what Δ has already done
1.    Exs of corroboration of purpose:
a.    Lying in wait, looking for, or following intended victim
b.    Enticing victim to go to place contemplated for the crime
c.    Reconnoitering the place contemplated for the crime
d.    Unlawful entry into place contemplated for the crime
e.    Possession of materials for the crime that have no lawful purpose under the          circumstances or are specifically designed for such unlawful use
f.    Soliciting an agent to engage in conduct constituting an element of the crime

         (ex:  asking B to pick up clothes from the cleaners w/ stolen ticket)

2.    Exs of substantial steps
a.    Administering 5 of 10 doses of poison
b.    Setting bomb to go off by timer, it fails to detonate
c.    Reconnoitering place contemplated for crime
B.    “Physical Proximity Test” (CL)
a.    looks forward in time “what more must happen before crime is completed?”
b.    must come physically close to completing the crime
i.    Ex:  lying in wait to shoot husband, but husband in Chicago:  not physical proximity

Examples of Substantial Steps
1.  Waiting for, looking for, or following intended victim
2.  Enticing victim to go to place for crime
3.  Reconnoitering place for crime
4.  Unlawful entry into place for crime
5.  Possession of materials w/ no lawful purpose under circumstances or spec designed for such unlawful use
6.  Soliciting innocent agent to do part of the crime (not designed to apply where crime of solicitation has occurred)
Abandonment of Attempt
Common Law - not available
MPC - Renunciation is Available
i.    Must be both voluntary and complete
        1.    Can’t be:
               a.    b/c increased likelihood of detection/apprehension/more difficult                    (not voluntary)
               b.  mere postponement or change of target (not complete)
   * NOTE:
1.    Remorse is not abandonment (attempt to kill by stabbing, take victim to hospital→attempted murder)
2.    Defense is unavailable once Δ has put into motion forces he is powerless to stop.
3.    Can’t abandon completed crimes:
            a.    Ex:  Attempt burglary, still guilty of criminal trespass and possession of burglary tools.

Legal v. Factual Impossibility
NO difference:  “Δ is guilty of attempt if he would have committed a crime, were the attendant circumstances as he believed them to be”
i.    Ex:  Shoot a corpse, but believe it to be alive (attempted murder)
ii.    Ex:  A takes B’s briefcase, believing it to be his own (no attempted larceny)
iii.    Ex:  A takes A’s briefcase, believing it to be B’s (attempted larceny)
Common Law:
Factual Impossiblility:  NO Defense.  Legal Impossibility:  Defense (see card)
Pure Legal Impossibility is NEVER a Crime
Ex:  Believe singing is a crime and sing.  No crime.
Examples of Legal Impossibility
 ii.    (Δ can do everything he intends, but it is still not a crime)
•    Attempt to shoot a wax dummy (not illegal to shoot wax)
•    Attempt to steal umbrella (didn’t see that it was actually her own)
          o    Not illegal to steal your own things
•    Attempt to kill sleeping neighbor in the forest, turns out it was a log
•    Smoke what you think is pot, turns out to be basil
•    Try to bribe a juror, person is not a juror
•    Shoot at deer out of season, turns out to be a decoy deer

Examples of Factual Impossibility
i.    Would have been a crime, but factual circumstances unknown to Δ prevented him from reaching his goal
•    A shoots at B, but A doesn’t know gun unloaded. 
         o    Guilty b/c tried to fire bullet, but b/c none, goal thwarted
•    Pickpocket attempts to pick an empty pocket
        o    Since nothing to steal, goal thwarted.  Guilty
•    Attempt to poison w/ bottle labeled ‘arsenic’ but it turns out to be water
1.  Intend the crime to be committed. (Mens Rea)
2.  Encourage, advise, or request that the crime be committed. (Actus Reas)

Policy:  You start something you may not be able to stop.
MPC:  Uncommunicated solicitation allowed; any crime will do
CL:  Communication must be received, usually only specific crimes can be solicited (bribery, murder, robbery, etc.)
*Solicitation usually requires either specific targets or specific solicitees (everyone in an assemblage will work, and wanted posters for abortion doctors worked, but general pamphlets advocating crimes did not)
Renunciation of Solicitation
Not in CL
Voluntary and Complete
Must persuade solicitee NOT to commit crime or otherwise PREVENT ITS COMPLETION
ex:  merely calling police won't work, unless they actually stop the crime.
Accomplice Liability
 w/ purpose of promoting/facilitating the crime (intend crime committed):

i)    solicits another to commit it
ii)    aids or agrees or attempts to aid another person in planning or committing it
iii)    Having legal duty to prevent  offense, he fails to make reasonable effort to do so,           OR
iv)    His conduct is expressly declared by law to establish complicity
Intend crime be committed
Provide actual assistance/encouragement to principal
Accomplice Notes
   Persons legally incapable of committing the crime (both MPC and C-L)
a)    Can be convicted as accomplice (ex:  rape statute exempts husbands from raping wives.  Husband hires another man to rape his estranged wife.  Accomplice).
Person whose conduct is inevitably incident to Commission of the Crime (Both MPC & CL)
a)    Ex:  prostitution cannot be committed w/o partner.  Partner not an accomplice to prostitution (but has committed separate crime)
b)    Ex:  extortion requires participating victim.  Victim is not accomplice to extortion.
Extent of participation necessary
 *Enough if makes easier, even if goal attained w/o aid
*Passive Acquiesence NOT enough unless owe duty to prevent the crime
*Agreeing to aid/attempting to aid
    CL:  not enough unless actually encourages/aids
    MPC:  enough w/o proof of encouragement/aid
Accomplice Liability and Mens Rea
Generally CL:  Purpose for underlying crime is required (actually intend for the crime to be committed) *actus reas was the providing of assistance/encouragement
Knowledge NOT sufficient UNLESS:
1.  Dangerous Felony or
2.  Have large stake in venture -implied intent/ common enterprise
mere knowledge not sufficient; must have purpose of promoting or facilitating offense
Accomplice Liability and Additional Crimes Committed beyond one provided assistance for
Common Law:
i)    Criminally culpable for “natural and probable consequences” of crime you assisted.
(1)    Ex:  armed robbery; get gun for robber and want the robbery to occur
(a)    Murder occurs:  Δ guilty b/c nat and prob consequence.
i)    When causing a particular result is an element of the other crime (death, in previous example), Δ is guilty of the other crime only if he had the accompanying mens rea for the other crime (for murder:  purpose, knowledge, or extreme recklessness)


Accomplice Liability


Ways To Avoid Criminal Responsibility

Common Law:
i)    Remove all encouragement/aid provided
ii)    OR Timely notice to police
MPC adds:
i)    OR Proper effort to prevent the crime (including timely notice to police)
ii)    Remove all encouragement/aid provided (ex:  get back the shotgun you lent)
**Do NOT have to stop the crime, unlike solicitation
Example:  Solicit the murder of your wife (intend and encourage) by talking to your neighbor.  You are both accomplice and solicitation.  You have change of heart, and call both her and the police to prevent the crime.  He still murders her.
    Guilty of Solicitation (failure to prevent the crime).  BUT:  not guilty of murder under accomplice theory, because withdrew.
**Withdreawal of aid in some jurisdictions is no defense if motivated by fear of apprehension rather than moral realization that crime is wrong.
Conspiracy - Definition
Actus Reas:
Agreement b/t 2+ people to commit the crime (Majority also requires overt act in CL, MPC requires overt act except for 1st and 2nd degree felonies)
Mens Rea:
a)    intent to enter the agreement to commit the crime;
b)    intent to further the agreement’s objective unlawful act (knowledge does NOT        suffice)
c)    (minority) requires knowledge that the unlawful act is unlawful
Conspiracy:  The Agreement
1.  Can Be Inferred from "Choreographed and consistent activity" that couldn't happen by itself. (police conspiring to violate liquor laws)
2.  2+ Parties
Old Common Law (bilateral approach):  must be actual agreement b/t 2 parties to conspire (so no conspiracy if conspire w/ undercover police officer, for example)
Minority Common Law/MPC: (unilateral apprach):  if 1 agrees w/ another, conspiracy (they don't have to agree back).
Wharton Rule (Common Law only): When impossible to commit crime w/o cooperative action, NO Conspiracy.
            * 3rd person added, all 3 guilty of conspiracy b/c 3 persons not essential to the crime.
*MPC has Conspiracy MERGE with the substantive crime, but common law does NOT
Conspiracy:  The Mens Rea

Knowledge does NOT suffice (need purposeful intent).


Same rules to make knowledge suffice for provision of goods as for accomplice liability (very serious crime, large financial stake, or direct evidence of conspiracy)

Conspiracy:  Further Crimes by Conspirators
MPC:  Δ liable only if he would be an accomplice to the other crimes
i.    Unfair to hold all members of conspiracy equally liable irrespective of actual roles. 
Pinkerton Doctrine:  (minority rule + Federal Rule) – criminally culpable for other crimes if committed in furtherance of the conspiracy and the crime was reasonably foreseeable
i.    Pinkerton:  one Δ arrested, co-conspirator continued the conspiracy outside of prison, the prisoner was liable for those crimes too

Withdrawal From Conspiracy

1.  There MUST have been conspiracy to begin with (if you leave before overt act in a juris requiring it, you are not guilty for conspiracy OR ensuing crimes).


2.  Ways to Withdraw: (still liable for conspiracy, but not for ensuing crimes)


     a.  tell everyone in conspiracy you are withdrawing (*difficult in MPC) OR

     b.   Tell police of conspiracy and your role in it.

Renunciation from Conspiracy
(Not Liable even for the Conspiracy Charges)
COMMON LAW:  Not Available
a.  MUST be voluntary and complete
b.  MUST thwart conspiracy's success (some states only require substantial effort to thwart)
:  G, M, and B agree to rob a bank.  M steals a gun.  G no longer wants to be part of the crime, tells the others.  Crime is committed anyway (bank robbery, conspiracy to rob bank, theft of gun)
•    G withdrew, so not guilty bank robbery.  Still guilty of conspiracy (didn’t thwart it)
•    G still guilty of theft (happened before withdrawal)
o    If he only informed 1 of the withdrawal:  still guilty of bank robbery

But-For Cause:  w/o D's actions, death would not have occurred
  --V has to actually be alive at time of death
Proximate Cause:
Death must be the reasonably foreseeable consequence of D's actions.
There must be a sufficiently direct link w/o a superseding cause
•    To be sufficiently direct cause of death, it is not necessary for ultimate harm to be intended by the actor.  Suffices if beyond a reasonable doubt, that the ultimate harm is something which should have been foreseen as reasonably related to the acts of the accused.
Causation and Superseding Causes
i.    Suicide:
1.    If V is driven insane by Δ’s act, suicide does NOT supersede
a.    Stephenson v. State: sexual assault and bite marks on V, who takes poison.  Poison not superseding, Δ’s actions rendered V “mentally irresponsible”, so Δ was direct cause of death. G.
ii.    Encouraging Suicide:
1.    Normally prosecuted for aiding and abetting suicide (felony).
a.    If help woman commit suicide and she is pregnant, felony-murder rule for death of fetus as well.
iii.    Victim refuses medical aid
1.    NOT superseding, Δ is Guilty
iv.    Victim tries to escape and dies
1.    Guilty, so long as instinctual and not completely bizarre (climbing across power lines, etc.)
v.    Victim subjects self to danger
1.    Russian Roulette:
a.    Reckless endangerment of V’s life by encouraging or cooperating in the game
    Actual result involves same kind of injury as the probable result of actor’s conduct.  AND that actual result not too remote. (would have precluded guilt in Stephenson.)

Deadly Force and Self Defense (Common Law)
1.    Common Law (Majority)
a.    Defendant honestly and reasonably believed:
           i.    Deadly force was necessary
          i i.    To protect self from imminent infliction
           iii.    Of deadly force.
1.    Subjective:  honest belief
2.    Objective :  a reasonable person would have that belief.
2.    Common Law (Minority)
a.    Only honestly believe those things.
i.    *(Goetz would have had valid claim even if fear was unreasonable)

Deadly Force and Self Defense (MPC)
MPC Approach:
a.    Must believe force is necessary
           i.    (If belief itself is reckless or grossly negligent:  guilty of manslaughter or                         gross negligence, respectively)
b.    To protect against death, sbh, kidnapping, or rape

Regular Force and Self Defense
1.    Resist imminent unlawful force (not privileged force).
2.    Force must not be excessive (no more than reasonably necessary)
3.    Force cannot be deadly unless danger resisted was also deadly
4.    Aggressor:  Δ cannot be aggressor unless:
           a.    non-deadly aggressor confronted with unexpected use of deadly force OR
           b.    withdrew initial aggression and other party continued to attack
5.    Retreat:  No duty to retreat usually, especially not in own home/at work (unless aggressor or assailant also resident of dwelling) – modern rule rejects co-dweller exception
           a.    Majority:  No Duty to Retreat even when other Using Deadly force
           b.    Minority:  Duty to retreat if can do so in complete safety
           c.    MPC:  
                   i.    Duty to retreat only clear can do so with complete safety
                   ii.    No duty to retreat ever in home/work unless at work and coworker

Reasonableness and  Mistake

physical disadvantage of D for reasonableness.


Ex:  Small woman w/ leg in cast shoots 6'5 250lb man trying to hit her--she might reasonably fear for her life.


Knowledge and Past Experiences:


Goetz was allowed to give evidence he'd been mugged twice, so he would know of a threat to  his person and others' intentions were to injure/rob him, so deadly force was necessary.

Defense of Self/Others and Nuances
Unlawful force: usually a crime or tort but:
•    Excessive:  other party is entitled to use force, but instead uses excessive force, which becomes unlawful
o    Ex:  deadly force to defend property; deadly force in response to non-deadly force;
•    Consent:  if have consented to force, may not use force in self-defense (consent to sex, cannot hit the other person, consent to sex, can't use deadly force to stop rape).  BUT:  if consent is withdrawn and force continues:  can resist.

2.  Degree of Force:
•    Can use non-deadly force to resist almost all unlawful force
•    Including defense of property
•    Threat of deadly force against regular force okay provided no intention to carry it out (MPC)--otherwise assault

3.Deadly Force:
•    Intended or likely to cause D or SBH
•    *Result Irrelevant
o    ex:  fire gun at someone, miss, still used deadly force and can be liable for the results (ex:  battery for flesh wound, assault, etc. if d/force not permissible)
•    *Depends upon situation
o    Boxing champ or karate expert might use deadly force in hitting someone; but not necessarily true of ordinary person.

4.  Imminence:
•    Don’t have to wait until last second, but can’t use force if, say, attack threatened tomorrow
•    MPC:  “Present occasion”, not imminence.  Even more liberal
•    **Battered Wife Syndrome
o     Defendant Usually Loses in a non-confrontational situation (not imminent), and usually doesn’t even get to claim the defense as a Matter of Law.
•    Would otherwise allow the execution of abuser for past or future acts (State v. Norman)
o    But:  if absence of confrontation is merely a momentary lull in attack (ex:  victim’s back temporarily turned, but Δ believes attack will resume any moment):  imminence requirement usually met.
o    *Note:  Some states also use BWS for the mens rea (how a reasonable battered wife would react), MO included.

Aggressor Rule (Defense of self/others/property)
•    Aggressor Can’t Defend Himself
•    Even if he didn’t use initial force, if he provoked it.
•    Exceptions:
o    Non-deadly force met w/ deadly force:
          •    Presuming can’t retreat safely if jurisdiction so requires
o    Withdrawal
           •    If withdraws from the conflict and other party initiates second conflict,                       may defend w/ non-deadly force or deadly force as circumstances dictate.
           •    *Must be so other party realizes or should realize.

Defense of Property (CL)
*Only Non-Deadly force allowed to defend property.  Habitation is different
Common Law Defense of Habitation:
1.    Deadly force can be used to prevent unlawful entry (Not dominant theory anymore)
2.    Reasonably believes prevent unlawful entry & Necessary to prevent a felony/some force against an occupant (One Dominant Approach in C-L)
3.    Reasonably believes deadly force is necessary to prevent an unlawful entry & is necessary to prevent a forcible felony OR reasonably believes intruder otherwise poses a threat of Death/SBH (Other Dominant Approach)

*Spring Guns:  usable when justified in use of deadly force if you were there:  only under old common law rule (not dominant any more)
*MPC forbids spring gun use.
Defense of Property (MPC)
non-deadly force: if they believe it is immediately necessary to protect home or property so long as:
o    1)  they first ask the other person to stop interfering with the property in cases where it is reasonable to do so AND
o    2)  they do not use force that they know will “expose [other person] to substantial danger of bodily harm
•    requires only honest belief in need for force; defense is subject to the limitations re: reckless and negligent mistakes (same as self-defense)
1)  Intruder not merely attempting unlawful entry; but is doing so in order to “dispossess” them of home and has “no claim of right to possession
       •    to be illegally ousted from one’s home is provocation not to be depreciated
       •    likely to arouse in householder reasonable fear for own safety
2)  OR when:  Δ believes someone is attempting to commit arson, burglary, robbery, or some other felony involving theft or destruction of property SO LONG AS:
        •    i.  that person has used or threatened deadly force against them or in their presence OR
        •    ii.  Using nondeadly force under circumstances would “expose them to subst               danger of serious bodily injury”

Necessity (CL)
Common Law;
•    Reasonable belief crime is necessary
•    To prevent an imminent harm
•    The harm caused is less than the harm trying to avert
•    Can’t be a less-evil option to prevent the harm
       o    Ex:  instead of burning the building to prevent spread of fire, turning on the                sprinklers.
•    *Note:  compelled by  non-human events (not coercion from another human).
*Must be causal connection b/t necessary crime and crime prevented
•    Exceptions:
o    Legislative foreclosure (leg has already balanced evils)
o    At-fault exception (some jurisdictions)
        •    If Δ at fault for creating situation requiring choice of two evils, not available

Necessity (MPC)
MPC:  (available when source of emergency is coercion from another person, OR an event).
•    “honest belief that committing a crime prevents greater evil”
    NO imminence requirement
         o    Often averting future evil.
•    Exception:  if crime only requires recklessness or gross negligence and Δ was reckless or grossly negligent (respectively) in bringing about the situation or in determining whether lesser of evils, then can be charged with the crime.

Homicide and Necessity
Dudley v. Stephens
o    Morality:  one should die himself rather than kill an innocent person to save his/others lives
o    Rescue:  might have occurred before any died, or all 3, so not clear that greater evil avoided by the killing
o    Unfairness:  didn’t draw lots for who died
o    Abuse:  might abuse the defense and allow crimes to go unpunished
** some say necessity NOT a defense to murder/manslaughter
Escape from Prison and Necessity
Escape from Prison:
•    Must be threatened specifically w/ threat of death, forced rape, or SBH in immediate future
•    No time for complaint to authorities; or there exists history of futile complaints
•    No time/opportunity to resort to the courts
•    No evidence of force against prison personnel/other innocent persons during escape AND
•    Prisoner immediately reports to authorities once he has attained position of safety from immediate threat.

Civil Disobedience and Necessity
•    Very tough to claim necessity as defense
•    Usually legislature has abrogated the defense by enacting laws, which the people are then protesting
•    Must be causal connection b/t Δ’s actions and harm trying to avert:
o    Ex:  trespass and throwing paint won’t stop presence of nuclear submarines
•    Must be no alternatives
o    Electoral process, speeches, initiative/referendum are ALWAYS available.

Duress (CL)
Duress Defense
1.  Reasonably believe that:
2.  Actions are necessary
3.  To protect himself or others from an imminent threat
4.  Of death or SBH.
In many states:  Duress cannot be a defense to murder.
*does NOT negate mens rea

Duress, policy decisions for allowing it as a defense to murder
Pro-Duress Defense to Murder
•    Reasonable to kill when requirements of Δ are met.
•    Shouldn’t expect people to be martyrs
•    Realistically there is no impact on deterrence b/c duress is so strong
•    Ultimately save lives

Intermediate Position (almost no states take this view)
•    Guilty of lesser homicide
•    In ½ of jurisdictions, if someone holds gun to your head and say “shoot your husband or I’ll kill you”:  you are guilty of murder
o    Yet if kill out of passion, only guilty of manslaughter

Con-Duress Defense
•    A might not have shot B, so C died unnecessarily
•    Some particularly reprehensible or harmful actions have NO EXCUSE.
•    Each life has equal value

Duress (MPC)
1.    If there is a threat of “unlawful force against his person or another person, that a person of reasonable firmness in his situation would have been unable to resist.”
a.    Exception – Not an excuse if he “recklessly placed himself in a situation in which it was probable that he would be subjected to duress” (ex. Gangmember)
b.    Exception – Not a defense if the duress arises from a natural cause.
2.    Can raise both duress and necessity under MPC (not in CL)

Distinctions b/t Duress and Necessity
Distinctions b/t Duress and Necessity.
1)    Necessity:
a)    Must reasonably averting greater harm than that caused by his crime.
b)    Doesn’t have to be driven by desire to avert death or SBH
i)    Ex:  Rampaging forest fire, sets another building on fire to stop the fire from getting to the rest of the community.  Successfully invoked if other harms averted
c)    Force Exerted restricted to a non-human force; a force of nature;
i)    Force causing is a force of nature (ex:  the fire)
2)    Duress:
a)    Don’t have to avert a greater harm, just a harm to self/family.  Ex.  Someone demands you kill 3 people or they’ll kill you:  duress, but not necessity
b)    Triggered when trying to avert death or serious bodily harm to Δ, or someone else (some statutes narrow it to close family members)
c)    Force Exerted is a human force. 

Insanity (CL and MPC)
   M’Naughten Rule (majority) :MUST HAVE: mental disease/defect
a.    As result:  don’t know nature/quality of actions (thinks stabbing pillow) OR don’t understand actions are wrong
i.    2 ways to define wrongfulness:
1.    Don’t understand actions are illegal
2.    Don’t understand society would view actions as immoral
MPC Test: MUST HAVE:  mental disease/defect
a.    As result:  lacks appreciation substantial capacity to understand wrongfulness of conduct or conform conduct to the law
i.    Volitional component

“appreciation” helps Δ under MPC because it requires a higher understanding.

Insanity - Burden of Proof
Burden of Proof
•    New Rule:  burden of proof on Δ.
o    Must both raise the issue and carry the burden of proof
o    Preponderance of the evidence to carry (more likely than not that he was insane at the time of the crime)
Federal Approach:  “Clear and Convincing Evidence” (higher than preponderance)

Distinctions b/t MPC and M'Naughten
First Distinction:  MPC has volitional component.
1)    Second Distinction
a)    MPC requires lack substantial capacity to appreciate criminality/conform conduct (does NOT require total impairment).
i)    More realistic understanding of mental illness
ii)    Distinction, but often depends upon the jurisdiction (many only require subs. capacity for the M’Naghten Rule)
2)    Third Distinction
a)    MPC:  appreciate criminality/wrongfulness of his actions
i)    M’Naghten:   didn’t know the actions were wrong
(1)    Appreciate infers a deeper understanding

MPC's Caveat to Insanity
MPC’s Caveat Paragraph
•    MPC doesn’t define “mental disease or defect”, but specifies that the term “excludes abnormality manifested only by repeated criminal or otherwise antisocial conduct”
        o    Compulsive Gambling?  Narcotics Addiction?
•    Otherwise most serious criminals could assert this defense
        o    Also put inappropriate/dangerous people in mental institutions
•    Is the emphasis on untreatability inappropriate b/c most psych disorders were not treatable until advances in modern medicine.
•    Antisocial personality disorder (generally found to be excluded by the caveat paragraph, despite other manifestations than criminal conduct)

Guilty But Mentally Ill
•    Mentally ill, but NOT insane.
•    Still sentenced (for, say, murder); recommended for and sent for assessment (mentally ill)
o    Hospitalized until mentally healthy (say 2 years of 20 year sentence)
o    Then sent to prison for duration of the sentence (remaining 18 years)

Intoxication as an Excuse
Involuntary Intoxication (affirmative defense) Relevant in 2 ways to a case:
         Ex:  At party, get roofied; side effects of prescribed medication taken willingly
1)    If, as result, commits crime but lack mens rea, they are NOT guilty.
              Ex:  pick up a bag, thought at the time it was theirs, but didn’t intend to keep it if it wasn’t.
2)    If, as result, person suffers similar effects as one deemed insane.  [meet the requirements of the insanity defense except for the ‘mental disease or defect’]

Forcible Rape (CL)
1.    Forcibly or
2.    By means of certain forms of deception (only if she’s deceived she had intercourse) or
3.    While a woman is asleep or unconscious or
4.    Upon a woman incompetent to give consent (drugged; handicapped)

1.    Require proof the female did not consent (must be non-verbal) and
2.    Intercourse was by force
**SO, under CL – he’s not guilty if he had a genuine and reasonable belief that she consented to intercourse (and she wasn’t his wife)

Forcible Rape (MPC)
1.    A male is guilty of rape when he has sexual intercourse:
a.    Female is < 10 years old
b.    Female is unconscious
c.    Compels woman to submit by force or threatening her or another person with imminent death, grievous bodily harm, extreme pain, or kidnapping
d.    He administers or employs drugs to impair her conduct.
2.    Does not require proof of resistance.
3.    Recognizes marital immunity exception (even common law marriage)
4.    First degree rape when:
a.    He inflicted SBH
b.    He had no previously had sex with female.

➢    MPC defines ‘sexual intercourse’ more broadly – allows for genital, oral, and anal
➢    MPC defines rape in terms of the male’s aggressiveness, not the female’s non-consent
➢    MPC has broader allowance – if woman submits to intercourse to protect threats against a third party, for example

Rape and Mens Rea
REQUISITE MENS REA – Jurisdictions split
➢    Recklessness → Will suffice in all jurisdictions
o    D was aware of a substantial risk she didn’t want to have intercourse; disregarded that risk
➢    Negligence → Will suffice in some jurisdictions
o    D truly believed that she was consenting; but was an unreasonable, incorrect belief

➢    2 occasions when resistance is relevant:
o    Mens rea requirement (if consent is required, D can argue that D wasn’t aware)
o    Affect whether there was consent (D will argue that she consented because she didn’t resist)
➢    Old view – “Utmost resistance” law – man not liable unless woman resisted to the utmost
o    Problems – (1) Some people freeze in fear; (2) Resistance might be futile due to size diff
➢    Some states require reasonable resistance

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