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198 Cards in this Set

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What is a crime?
Command specifying some kind of action or restraint from action, which is valid and binding on the community, is subject to enforceable sanctions, and elicits the condemnation of the community. (Four elements) Alternatively, comprised of ACTUS REUS and MENS REA.
There are four elements.
For the successful implementation of a criminal law system, what must be present? (3 things)
People must:
1) Know what to comply with
2) Be able to comply
3) Be willing to comply
+ Whole point of criminal law is to criminalize behavior that people are not willing to comply with
From what part of the Constitution does the criminal presumption of innocence come?
DP Clause of the 5th A.
What is the standard of review on appeal in a criminal case?
Whether a rational trier of fact could reasonably conclude guilt beyond a reasonable doubt. (In other words, MUST there have been a reasonable doubt? If so, burden of proof not met in lower court.)
What is jury nullification?
It is when, notwithstanding the facts of the case and/or the law, the jury chooses to acquit. The power to "nullify" is granted by the Double Jeopardy clause.
Briefly restate the jury as "conscience of the community" argument for jury nullification as opposed to the jury as "follower of the law."
Jury has the right to act as the ultimate passer-of-judgment on a person tried, and it can also decide that if a law is unjust, it will choose not to follow that law.
What is the primary argument in favor of the jury acting as a "follower of the law" rather than as the "conscience of the community?"
The legislature is better equipped than a jury to create laws.
What is Bentham's utilitarian conception of punishment?
What matters is how much good can be distributed overall.
Briefly explain Hedonic Utilitarianism.
Is a type of act utilitarianist theory of punishment based on the opposition of pain and pleasure. The criterion for validity of a punishment is derived from its tendency to promote happiness.
What is Greenawalt's utilitarian conception of punishment?
TBD
What is Act Utilitarianism?
TBD
What is Rule Utilitarianism?
A rule ought to be followed if it brings about greater utility.
To a utilitarian, what is the relationship between punishment, evil and the greater good.
Punishment is inherently evil and should never be used unless it promotes the greater good by preventing future crime (also an evil.)
What are the four primary functions which punishment should serve, according to utilitarians?
1.) General deterrence
2.) Individual deterrence
3.) Incapacitation and other forms of risk management
4.) Reform (Rehabilitation)
What is the "General Deterrence" function of punishment under the Utilitarian theory?
1.) Punishment of someone else deters others.
2.) Punishment of an individual creates a stigma on the punished person. ("I don't want to be like that guy.")
What is the "Individual Deterrence" function of punishment under the Utilitarian theory?
Penalty must be severe enough to outweigh any gain enjoyed by committing the crime, thereby deterring an individual from committing the crime again.
What is the "Incapacitation" function of punishment under the Utilitarian theory?
Incarceration, lobotomy, death penalty, etc. Basically, take the guy out; remove him from society altogether.
What does the "Reform (Rehabilitation)" function of punishment serve under the Utilitarian theory?
Reform an individual by providing her with education, employment skills, psychological aid, religious programs, etc. She will not want or need to commit future offenses.
Explain the "Rational Burglar" idea as emphasized by Dressler.
Basically, emphasizes the importance of the criminal's being caught.
A. Lower chance + longer prison sentence = greater chance of committing crime
B. Higher chance + shorter prison sentence = lower chance of committing.
(Expectation of being caught is just as important as the potential prison sentence.)
What is Greenawalt's Retributivist justification for why we punish, and what theory does it embody?
Greenawalt's Retributivist theory is that we punish criminals because they deserve to be punished. Moral desert is a sufficient reason for punishment and no other reason is necessary. This is "just deserts" theory. (Criminals should get their "just deserts."
What is Negative Retributivism?
Only the guilty should be punished; guilt is a NECESSARY condition for those who deserve it; without that condition, there can be no punishment.
What is Positive Retributivism?
Guilt is both a NECESSARY and SUFFICIENT condition for punishment; all you need to tell me is that the guilty party deserves the punishment and he will get it. I don't care about him; just know that he deserves punishment and will get it.
What is Morris' Retributivist theory for why we punish?
It is a protective form of Retributivism. Society is composed of a system of benefits and burdens. If you voluntarily give up one of those burdens and reep a forbidden benefit for yourself, you create inequity. Punishment restores equity (balance). You have a RIGHT to be punished.
What is Hampton's Retributivist theory of punishment?
His theory is centered on morality and the victim, and emphasizes the equal worth of individuals. (No idea. Get further info. on this one)
What is the proportionality principle of punishment?
Punishment should be proportional to the offense committed. [See MPC 1.02(2)(c)]
What is the Utilitarian meaning of "proportional?"
In a utilitarian system of criminal justice, punishment is proportional if it involves the infliction of no more pain than necessary to fulfill the law's deterrent goal of reducing the greatest amount of crime.
What is the Retributivist meaning of "proportional?"
Punish is proportional to the HARM caused on the present occasion, taking into consideration the actor's degree of CULPABILITY for causing the harm.
What is the Coker v. GA test for excessive punishment (proportionality)?
Punishment is excessive if:
1.) It makes no measurable contribution to acceptable goals of punishment; and
2.) It is grossly out of proportion to the severity of the crime.
What is the process of statutory interpretation provided by U.S. v. Forster? (Note: DG wants us to remember that this just representative of a number of statutory schemes.)
1.) Has the term been interpreted before? (precedent)
2.) Dictionary
3.) Bailey decision (in pari materi - don't make separate, narrow terms mean one broader term)
4.) Harmonized better with full statute
5.) Flows from likely purpose (legislative intent)
6.) Rule of Lenity
+ Where a criminal law is ambiguous, we are wary of imposing criminal liability for conduct that the law does not clearly prohibit.
(Almost like a tiebreaker.)
Coker v. GA found that what is disproportional punishment for the crime of rape of an adult woman?
The death penalty. [note: Coker employed retributivist reasoning inasmuch as it held that since the D did not kill someone, he should not be killed himself. ("eye for an eye" thinking)]
What is the "legality" principle?
No crime without (pre-existent) law, no punishment without (pre-existent) law. It has been characterized as the most basic principle of American law. Has also come to mean that judicial crime-creation is no longer permitted. (A person may not be punished unless the conduct was defined as a crime before they acted.)
What is the rationale behind the "legality" principle?
It is morally unjust to punish a person whose conduct was lawful when she acted, because she did not choose to violate the law.
What is the significance of unreasonably vague laws with reference to the "legailty" principle?
They are not enforceable. Do not provide adequate notice of what the criminal conduct is and give law enforcement too much leeway. Fair Warning = essential.
What is the "actus reus" of an offense?
It is the physical, or external, component of a crime - what society does not want to occur.
What are the two elements of an actus reus?
1.) Voluntary Act or Legal Omission
2.) Social Harm
What is a "voluntary act or legal omission?"
"Voluntary act" is a WILLED muscular contraction or bodily movement. (MPC never defines the term "voluntary", but lists what's involuntary: reflex or convulsion; bodily movement during unconsciousness or sleep; conduct during hypnosis, etc.)
To be guilty of an offense, is it sufficient that a person's conducted merely included a voluntary act or must all aspects of her conduct be voluntary?
It is sufficient that merely one part of her conduct was voluntary.
Is there a voluntary act requirement for strict liability offenses in criminal law?
Yes, there is, unlike in Torts.
What's the difference between the CL and MPC requirements for the omission element of actus reus?
There is no difference. Both the CL and the MPC require that if the actor has a legal duty to act and doesn't, he can be guilty of a crime. Duties can be established by: status, contract, voluntary assumption, and by risks creation.
Define the "social harm" element of actus reus.
"Social harm" is defined as the destruction of, injury to, or endangerment of, some socially valuable interest.
How can you determine the social harm of an offense?
By looking at the definition of a crime and identifying the elements of it that describe the external condut constituting the crime.
What three categories can the "social harm" elements of any given crime be divided up into?
1.) "Results" Elements (Some crimes prohibit a specific result)
2.) "Conduct" Elements (Some crimes prohibit specific CONDUCT, whether or not tangible harm results)
3.) "Attendant Circumstances" Element (Result or Conduct typically not an offense unless certain attendant circumstances exist.)
What is an "attendant circumstance?"
An "attendant circumstance" is a fact that exists at the time of the actor's conduct, or at the time of a particular result, and which is required to be proven in the definition of the offense.
(e.g., definition of murder requires the death be of a human, not a dog --> this is an attendant circumstance)
What are the general and specific meanings of the "mens rea" for any given crime?
General: "Culpability" --> Person commits the actus reus of an offense with a "vicious will," "evil mind," or "morally blameworthy" or "culpable" state of mind.

Specific: "Elemental" --> One must commit the actus reus of an offense with the particular mental state set out expressly in the defintion of that offense (in a statute, for instance).
What is the Utilitarian rationale for the mens rea requirement?
A person who commits the actus reus of an offense without a mens rea is not dangerous, could not have been deterred, and is not in need of reform. Therefore, her punishment would be counter-utilitarian. (Although there could be deterrence value in punishing a person who innocently commits a crime as an object lesson to others who think they could avoid punishment for that crime even thuogh they have the appropriate mens rea).
What is the Retributivist rationale for the mens rea requirement?
Just deserts rationale: a person who commits the actus reus of an offense in a morally innocent manner (accidentally) does not deserve to be punished, as she did not choose to act unlawfully.
How do you define the CL term "intentionally" often associated with the mens rea requirement of a given crime?
The social harm of an offense is intentional if:
1.) It was one's conscious object to cause the result; or
2.) One knew that the harm was virtually certain to occur as the result one's conduct.
Does the CL "intent" pertain to the social harm (unwanted result) or the act (causing the harm)?
While a person may "intend" an act, for purposes of analyzing mens rea under the CL, the issue is whether a person intended the RESULT (social harm) of her act.
What is the doctrine of transferred intent and to what sort of crimes does it apply?
Your intent to commit one crime can transfer to the identity of another affected victim and can only transfer between the same types of crimes.
What is the difference between general and specific intent offenses?
General: Any mental state, implied or express, in the definition of the offense that relates SOLELY to the acts that constitute the criminal offense.

Specific: Specific mental element which is required ABOVE and BEYOND any mental state required with respect to the actus reus of the crime.
What is the MPC approach to mens rea?
1.) Provides degrees of culpability (Purposely, Knowingly, Recklessly, Negligently)
2.) These degrees will apply to SPECIFIC ELEMENTS of the crimes SEPARATELY and INDIVIDUALLY (these factors only make differences as to, apply to Purposely and Knowingly)
a. Nature of the Conduct
b. Attendant Circumstances
c. Results of the Conduct
What does the MPC do with the CL distinction between specific and general intent?
It basically abolishes it with its degrees of culpability approach to mens rea.
Define all possible CL mens reas.
1.) Intentionally (willfully) - To consciously cause the result or when one is virtually certain that the object will occur as a result of D's conduct.
2.) Recklessly - A heightened criminal negligence or conscious disregard of a substantial and unjustifiable risk.
3.) Negligence - Objective fault (D SHOULD have been aware that his conduct created a substantial and unjustifiable risk that the social harm would result.)
4.) Maliciously - One intentionally or recklessly causes the social harm of an offense
Define all possible MPC mens rea degrees of culpability.
1.) Purposely - Conscious object w/ conduct and results. Must be aware of the existence or believe or hope that such circumstances do exist.
2.) Knowingly - Conscious awareness that results are "practically certain" to occur.
3.) Recklessly - Conscious disregard of a substantial and unjustifiable risk that a material element will result.
4.) Negligently - SHOULD have been aware of a substantial and unjustifiable risk that harm will occur.
What portion of the MPC discusses mens rea?
MPC ~ 2.02-2.05???
What is the "Wilful Blindness" doctrine?
When one suspects that a certain fact exists and purposely avoids learning if that suspicion is correct, she can be culpable for not doing so.
How does the MPC deal with statutory ambiguity in dealing with mens rea requirements?
It requires one of its mens rea terms for EACH element of a crime. If a statute is silent as to that element's mens rea requirement, the MPC provides that a mens rea element is established is a person acts purposely, knowingly, or recklessly with respect thereto.
When does an offense qualify as a "strict liability" offense?
When commission of the actus reus of the offense, even without proof of a mens rea, is sufficient to convict the actor. (Suffices for a single, critical element of an offense not to require a mens rea for the entire crime to be considered strict liability.)
What sort of offenses does strict liability often apply to and what is one major exception to this?
"Public welfare" offenses (e.g., motor vehicle offenses like speeding or parking violations). Exception is statutory rape where it doesn't matter if knew the slut was 16, you're fucked either way.
What does the MPC do with strict criminal liability?
It abolishes it except as to "violations" (an "offense", not a "crime," the violation of which involves "no other sentence than a fine, or fine and forfeiture or other civil penalty."
What is the Mistake of Fact defense?
A defendant is not guilty of a crime if her mistake of fact negates the mens rea of the offense charged.
What is DG's Mistake of Fact procedure?
DeGirolami’s Mistake-of-Fact Procedure
1. (Where you are dealing w/ common law) is the offense general intent or specific intent?
A. Specific – Does the mistake relate to the specific intent portion of the offense? Does it negate it?
i. In THIS case, the answer is YES (he INTENDED to steal)
B. General –
i. Culpability (did the D act from a morally blameworthy state of mind?)
a. Reasonable? (no culpability) Not reasonable? (culpability)
11. “Moral Wrong” Doctrine applied by some courts.
C. Strict Liability – A mistake of fact is NEVER an excuse.
How does the "Moral Wrong" doctrine work?
Look at the situation with the D’s eyes. Not an immoral act --> one does not assume the risk that his conduct is illegal. (Immoral act --> then you DO assume the risk that your immoral act is also illegal)
1. How do you define what is immoral??
2. Why isn’t the immoral conduct illegal?
[Basically, if you do an immoral act, you run the risk that it is simultaneously illegal, and that you will be punished accordingly even if you're mistaken as to its illegality.)
How does the CL differentiate between specific and general intent when analyzing mistakes of fact?
1.) Specific: Doesn't matter whether a mistake is reasonable. Even an unreasonable mistake may exculpate the actor (if it negatives the mens rea required)
2.) General: Unreasonable mistake of fact does NOT exculpate, while reasonable one does.
Why does the CL differentiate between specific and general intent when analyzing mistakes of fact?
Because if you're mistaken as to a fact, you probably can't have the requisite mens rea to act in accordance with it toward some specific result. ***CHANGE THIS****
How does the "Legal Wrong" doctrine work?
Essentially, the Moral Wrong doctrine, but substitutes "illegal" for "immoral." A person is guilty of a criminal offense, despite a reasonable mistake of fact, if she would be guilty of a different, albeit lesser, crime, if the factual situation were as she supposed.
How is mistake of fact not a defense in the strict sense of the term?
It is actually a way to negate the mens rea requirement of a given crime, not a true defense to having committed the crime.
Does a mistake of law ordinarily relieve an actor of crminal liability for a given crime?
No, even a reasonable mistake of law does not ordinarily relieve an actor of liability, nor is knowledge of the law generally an element of a given crime.
Contrast a primary utilitarian argument in favor of the CL mistake of law rule with a retributivist argument against.
Utilitarian: Allowing mistake of the law as a defense encourages ignorance of the law, and so punishment in spite of a reasonable mistake remains vital, for policy reasons.

Retributivist: We should not punish people who do not deserve to be punished (who are not blameworthy), and who have acted under a reasonable mistake of the law.
What is the MPC exception to the usual CL mistake of law rule?
Where a person's mistake of law (whether reasonable or unreasonable) negates an element of an offense, a D cannot be guilty of that offense. [MPC 2.04(1){a)]
What is the "Authorized Reliance" doctrine exception to the usual CL mistake of law rule?
A person is not guilty of a criminal offense if, at the time of the offense, he reasonably relied on an OFFICIAL statement of the law, later determined to be erroneous, obtained from a person or public body with responsibility for the interpretation, administration, or enforcement of the law definining the offense. ("Official" is something on letterhead, per DG)
What is the MPC approach to analyzing mistake of law?
The Model Penal Code approach

§ 2.02(9) Starts with CL notion that ignorance of the law is no excuse.
§ 2.04(1) creates an exception to that general proposition. If the definition of the crime itself requires knowledge of the law and you didn’t know it, then you lack one of the necessary elements for the offense.

§ 2.04(3) provides a limited set of circumstances in which even though knowledge of the law isn’t an element of the crime, we allow a defense. We don’t allow a defense based on a personal misunderstanding of the law, but rather a reasonable reliance on an official statement of the law from a public official or some other source. A casual or unofficial interpretation of the law from a public official is no good.
What is cause-in-fact and what is the most important question to ask when determining whether it is present in a given situation?
Cause-in-fact is the actual cause of the prohibited result, determined by asking "but for the D's conduct, would the result have happened WHEN IT DID?" Known as the "but for" test. (AKA "sine qua non" test)
What is proximate cause, and how does it relate to but-for causation?
Proximate cause is a concentric circle within the category of but-for causation. Proximate causation analysis is a matter of POLICY, where but-for causation has been established.
What is the "Substantial Factor" test and in what sort of cases is it used?
It is a causation test derived from tort law which asks whether a D's conduct was a substantial factor in bringing about the resulting harm; used in cases of concurrent causation. (simultaneous gunfire, assuming no complicity, either wound would have caused the death, so neither passes the but-for test --> use SF test)
What is the MPC's take on actual causation?
The MPC only requires actual causation and uses the CL "but-for" test. [DG doesn't want us to worry about the MPC's take on proximate causation.]
What is the CL foreseeability test for proximate causation?
To determine proximate cause, one must determine whether the actor was the direct cause and whether there were any intervening actors or intervening causes (coincidences) that sever the causal chain back to D.
No intervening causes unless the cause is foreseeable or de minimis.
What is an intervening cause and what role does it play in proximate causation?
An intervening cause is an actual cause (a "but for" cause) of social harm that arises AFTER D's causal contribution to the result, which can sufficiently break the chain of causation in such a way as to relieve a D of causal responsibility for the resulting harm.
What is the differene between "Independent" and "Dependent" intervening causes?
Independent: The factor would have come into play even in the absence of the D's conduct.

Dependent: Occurs in response to the D's earlier conduct.
What is the legal significance of the distinction b/w "Dependent" and "Independent" intervening causes?
Dependent: D is responsible UNLESS the dependent intervening act was not only UNforeseeable but freakish in its occurrence.

Independent: D is NOT ordinarily responsible UNLESS its occurrence WAS foreseeable to a reasonable person in the D's situation.
What is the "Intended-Consquences" doctrine?
D is generally the proximate cause of a result, even if there is an intervening cause, if the D intended the result that occurred. (Note: Must be precise about what D intended. If D wanted someone dead, he is only responsible under the doctrine if the person died in the specific way he intended.)
What is the "Apparent Safety" doctrine?
When someone reaches a position of safety, the original wrongdoer is no longer responsible for any ensuing harm.
What is Criminal Homicide?
Homicide (killing of one person by another) without justification (e.g., in self-defense) or excuse (e.g., as the result of insanity).
What mens rea is required for Criminal Homicide and what four things could it mean?
"Malice aforethought," which could mean:
1.) Intent to kill --> Purposeful or knowing homicide (doesn't matter whether you intended to kill if you knew someone would die)
2.) Intent to cause grievous bodily harm (with resulting death) --> Awareness that one's conduct would cause grievous bodily harm
3.) "Depraved-Heart" Murder --> Unintentional killing evincing a depraved mind amounting to a sort of EXTREME recklessness resulting in another’s death.
4.) Intent to commit a felony (felony murder rule) --> Intent to commit felony, death results
What is 1st degree murder?
Homicide with malice aforethought that is either (i) encompassed within the felony-murder rule of the Jx or (ii) willful, deliberate, and premeditated.
1.) Willful - Intent to kill
2.) Deliberate - Possessed of a cool mind that is capable of reflection.
3.) Premeditated - D, having a cool mind, must in fact reflect before killing. (D's state of mind is decisive during length of time b/w the formation of the idea to kill and the killing itself.)
4.) Proof of state of mind - 1-3 are subjective states of mind which can be proven by looking circumstances surrounding the events.
5.) Premeditation presumed for homicides perpetrated by poison or torture or after lying in wait for the victim.
What is 2nd degree murder?
Generally, any murder not falling w/in the category of 1st degree murder. (No premeditation or, at least, lesser premeditation).
What is CL manslaughter?
Unlawful killing of a human being by another being without malice aforethought.
What is voluntary manslaughter?
Intentional killing in which the actor takes a life under extenuating circumstances such as "sudden heat of passion," as the result of "adequate provocation," which mitigate, but do not justify or excuse the crime.
What elements comprise "heat of passion?"
1.) There must have been reasonable (adequate?) provocation
2.) D must have been in fact provoked
3.) Reasonable person so provoked would not have cooled off in the interval of time b/w the provocation and the delivery of the fatal blow
4.) D must not in fact have cooled off during that interval.
How does adequate provocation analysis under the CL work?
Common Law Provocation Defense
1. Subjective
+ D WAS provoked to lose his self control (permissible to lose his self-control? Question of evidence)
2. Objective
+ Provocation enough to make a REASONABLE (“ordinary”) man do as he did, taking into account the totality of the circumstances.
a. Person having the self-control expected of an ORDINARY person --> focuses on the degree of self-control. NOT appropriate to look at the D’s specific characteristics beyond his age/sex. Gravity of the provocation
b. With respect to the particular type of provocation it is appropriate to assess sharing the D’s personal characteristics when assessing the seriousness or gravity of the provocation.
c. Would a woman of the D’s age and sex, with ordinary powers of self-control react the same way?
Unintentional killings are encompassed by two of the categories of "malice" looked at under CL criminal homicide. Which two?
1.) [Unintentional] killing evincing a depraved heart
2.) [Unintentional] killing unduly dangerous to life and limb.
**Then decide which of the two categories the uninentional killing falls into**
Pertaining to unintentional killings (and reckless murder, specifically), what is the relationship of risky conduct to murder?
Assuming an objective appreciation of the risk (have to have an objective consciousness of the risk), a much less than probable chance of causing death may constitute murder if there was NO justification for the risky conduct. (Russian Roulette example) CONVERSELY, a HIGH probability of causing death is neither sufficient nor necessary for finding reckless murder. (Dr. performing surgery example)
How does the MPC differentiate between reckless murder and reckless manslaughter?
MPC Murder: Requires recklessness with extreme indifference to the value of human life

MPC Manslaughter: Mere recklessness
So, describe Depraved Heart murder once more.
Unintentional killing, evincing a depraved heart, which is a kind of extreme recklessness with respect to homicidal risk. (see base antisocial behavior such as keeping pit bulls in dangerous condition)
How does the MPC describe "recklessness?"
"Consciously disregards a substantial and unjustifiable risk." [Section 2.02(c)]
Under the CL felony-murder doctrine, when reviewing the predicate offense (felony), what about that offense is most important, for purposes deciding whether the offense should be incorporated into a felony murder rule?
Whether or not the predicate offense abstractly, by its very nature, creates a substantial risk that someone will be killed ("inherently dangerous"). If one instead chose to review the particular facts of individual cases, murder would have always occurred and the predicate offense would have to be have been found inherently dangerous. So, it is necessary to do this analysis in the abstract.
What is the "Independent Felony" (merger) limitation on the felony murder doctrine and how is it significant?
Where the felony at issue is an integral part of the homicide, it cannot form the basis for an application of the secondd-egree. FML --> ASK PAWEL AND KATE
What is forcible rape?
Forcible rape is the classic conception of rape, consisting of sexual intercourse (i) without consent and (ii) by force or threat of force likely to cause death or serious BODILY injury. [Primary questions: What indicates consent or a lack thereof? What is (in)sufficient force or threat of force?]
Is rape a specific intent crime or a general intent crime?
Rape is a general intent crime unlike murder, which is a specific intent crime.
What constitutes withdrawal of consent?
1.)Withdrawal +
2.)Clear communication (Clear, unequivocal, express communication of lack of consent to the PARTICULAR sexual act at issue)
(Physical resistance qualifies)
Is fear of force the same thing as an actual threat of force?
No, because a fear of force must be reasonable; a threat of force (I guess) generally provides sufficient occasion for reasonable fear of force.
In most CL Jx's, force or threat of force insufficient to cause death or serious bodily injury requires that the female resist to the point of having her resistance overcome (the "utmost resistance") before the crime can be called "forcible" rape ["Resistance" Rule]. What are some criticisms of the Resistance Rule?
It forces the female to escalate the danger to herself; it assumes that verbal resistance - saying no - is not enough; and it ignores the fact that many females may freeze up out of fear of the male aggressor. (Note: in Resistance Jx's, equivocal conduct is minimized by the requirement of an unequivocal act of resistance by the female.)
Since rape is a general intent offense, if a male enterains a genuine and REASONABLE belief that the female consented, is he entitled to an instruction on mistake of fact?
Yes, as a general intent offense, most Jx's would allow for a mistake of fact instruction under such circumstances.
Note: Some Jx's still provide that reasonable, good faith mistake as to consent is not enough, effectively converting forcible rape into a strict liability offense.
lkaf
How does the MPC deal with rape? [MPC 213.1(1)]
Prohibits four forms of rape, one of which is forcible rape. It is gender-specific ("male who has sexual intercourse with a female") and recognizes the marital immunity rule. MPC does not use "nonconsent," but "compels," shifting the trial focus from female to male (note: criticism of Resistance Rule). MPC grades rape as a second-degree felony, which can be escalated to a first-degree felony.
What is a Justification?
It is a defense that indicates society's belief that the defendant's conduct was morally good, socially desirable, or (at least) not wrongful.
What is an Excuse?
It is a defense that indicates that, although the actor committed the elements of the offense, and although his actions were unjustified - wrongful - the law does not blame him for his wrongful conduct.
What is the primary distinction between justification and excuse?
A justification tends to focus on the wrongfulness of an ACT or a result; and excuse defense focuses on the ACTOR.
Self-defense is a justification defense. When is a person justified in using deadly force under the defense?
When:
1.) He is NOT the AGGRESSOR; and
2.) He REASONABLY BELIEVES that such force is NECESSARY to repel the IMMINENT use of UNLAWFUL DEADLY FORCE by the other person.
How did we define "Aggression" in class?
One who commits an "affirmative unlawful act reasonable calculated to produce an affray foreboding injurious or fatal consequences."
Who is an aggressor?
"One who provokes the conflict, " "one who precipitates the conflict," etc.
What is "deadly force"?
Force likely to cause, or intended to cause, death or serious bodily harm.
If a nondeadly aggressor, A, is threatened by B with deadly force (in defense), does A regain her right of self-defense to use deadly force in spite of being the original aggressor?
Majority: Yes, as soon as B threatens the excessive force.

Minority: A may not respond with deadly force unless she first attemptes to retreat and B continues to threaten A.
Can deadly force ever be used in response to a nondeadly threat?
No, not even if it is the only way to repel the nondeadly threat.
Generally speaking, when is force "imminent?"
When the aggressor's threatened force will occur immediately, almost at that instant.
What is the "Castle" Doctrine?
A man's home is his castle. Therefore, he does not have a duty to retreat.
What does the "reasonableness" requirement for self defense apply to, specifically?
1.) Triggering conditions
and
2.) The necessity for use of deadly force
What is the "reasonableness"/"reasonable belief" principle as it pertains to self defense?
A person may use deadly force in self-defense if she has REASONABLE grounds to believe, and actually believes, that she is in imminent danger of death or serious bodily harm, and that use of deadly force is necessary to protect herself, EVEN IF her reasonable belief as to both of these is incorrect.
(So, actual belief must be reasonable, and that is enough even if it is not technically correct.)
What is a "reasonable belief" for self-defense purposes?
A belief that a reasonable person would hold in the actor's situation.
Reasonable Person: Defendant's physical characteristics and prior experiences can be taken into consideration in considering how D evaluated the threat posed.
What is the difference between the subjective (Wanrow case) and objective (Goetz case) standards for judging the reasonableness of the self-defender's actions?
Subjective: Can consider ALL facts and circumstances known to D prior to killing.

Objective: Can only look to acts and circumstances occurring "at or immediately before the killing."
How does the MPC deal with self-defense? [MPC 3.04]
A person is not justified in using deadly force unless she believes that such force is immediately necessary to protect herself against the exercise of unlawful deadly force, force likely to cause serious bodily harm, a kidnapping, or sexual intercourse compelled by force or threat, by the other person on the present occasion.
What are the primary exceptions to the Code's rule?
1.) If the actor is, or becomes, the aggressor (MPC: One who "provokes" the use of force against herself "in the same encounter" for the "purpose of causing death or serious bodily injury.")
2. Retreat - MPC follows minority CL rule that nonagressor must retreat if she knows that she can avoid the need to use deadly force with complete safety to herself. (person need not retreat form her dwelling; see: "castle" doctrine)
How does the self-defense justification bear on battered wives?
Most courts prohibit an instruction on self-defense in the case of a wife killing her husband if the homicide occurred in nonconfrontational circumstances, on the ground that no reasonable juror could believe that the D, AS A REASONABLE PERSON, would believe that a sleeping man (for instance), represents an IMMINENT threat.
How does the introduction of evidence that the D had Battered Wife Syndrome help a battered wife use the self-defense justification?
As a condition that is said to cause a woman "to sink into a state of psychological paralysis and to become unable to take any action at all to improve or alter her situation," (learned helplessness), this evidence is aimed at demonstrating that the woman w/ BWS SUBJECTIVELY believe that her husband represented an immediate threat, AND to show that a reasonable woman WITH BWS would also believe this to be the case. (thereby satisfying the imminency requirement)
What does the MPC do to move away from the conflict, highlighted by BWS evidence, of whether or not to implement the imminency requirement in BWS cases?
Moves away from strict imminency requirement by requiring only SUBJECTIVE belief on the part of the D (unless reckless or negligent under 3.09) and by using "immediately necessary" language v. "imminent" --> this is a looser standard.
On the whole, does the CL or the MPC cut more favorably to BWS battered wives?
MPC (see relaxed standards).
What is the Necessity defense?
Known as "necessity" at CL and "choice of evils" under the MPC. Not a universally accepted definition of the justification, and should be considered only after all other defenses have failed. Applies to rare cases such as emergencies.
What is the CL "Lesser-Evils" analysis for the necessity justification?
Actor must be presented with a choice of evils or harms, and he must choose commit the lesser of the evils. In other words, the harm that the D seeks to PREVENT by his conduct must be greater than the harm he reasonably expects to CAUSE by his conduct. The analysis is ultimately performed by the judge or jury reviewing the facts based on an objective (Reasonable person) standard; the D's belief itself is not sufficient.
What are the elements of the CL "Lesser-Evils" analysis for the necessity justification?
1. Reasonable belief - judge or jury puts itself in the D's shoes, and looks to harms a reasonable person would expect to occur at that moment.
2. Imminency - Harm expected must be imminent (strictly enforced) Any lawful avenue must be exhausted.
3. Causation - Reasonable belief that actions will abate the threatened harm.
4. Blamelessness - Many jx's provide that D must not be at fault for creating the necessity.
Does necessity apply to homicide cases?
The answer to this is unclear.
What is the MPC's counterpart to the CL's necessity justification? [MPC 3.02]
"Choice of evils" justification. (considerable influence on state penal codes)
What are the elements of the MPC "choice of evils" justification?
1.) Actor believes that the conduct is necessary to avoid harm to himself or another
2.) The harm that the actor seeks to avoid is GREATER than that sought to be avoided by the law prohibiting his conduct
3.) There does not plainly exist any legislative intent to exclude the justification claimed by the actor
(No recklessness or negligence allowed in bringing about the emergency, the defense is unavailable in a prosecution for any offense for which recklessness or negligence is sufficient to prove guilt).
What are the primary differences between the CL and MPC necessity doctrines?
Under the MPC, the threatened harm need not be imminent; moreover, the commentary to the MPC expressly allows for the necessity defense's utilization in homicide cases.
How is "Intoxication" defined?
A disturbance of an actor's mental or physical capabilities resulting from the ingestion of ANY foreign substance, most notably alcohol or drugs (including lawfully prescribed medication).
When is one excused for criminal conduct while voluntarily intoxicated?
One is never excused for his criminal conduct on the ground that he was voluntarily intoxicated.
What is an exception to this strict rule of no excuse (related to the mens rea of the actor)?
Most CL Jx's provide that a person isn't guilty of a SPECIFIC-INTENT offense if, as the result of voluntary intoxication, he lacked the capacity or otherwise did not form the specific intent required for the crime. Does NOT work for general-intent offenses.
What could a D argue if he was so voluntarily intoxicated that he did not know right from wrong (given the fact that he could not argue intoxication itself as a defense)?
D could argue "temporary" insanity.
For long-term use of acohol or drugs causing brain damage or other chronic mental illness, what could a D argue?
D could argue "fixed" insanity.
How does the MPC treat voluntary ("self-induced") intoxication? [MPC 2.08]
Voluntary intoxication is a defense to any crime if it negates an element of the offense.
What is an exception to the MPC rule?
Pertaining to an offense for which recklessness is sufficient to convict, such conviction cannot be avoided by proving that because of intoxication one was unaware of the riskiness of one's conduct. [i.e., even if a D's conduct was only negligent ("should have known"), she may be convicted of a crime requiring recklessness ("knew") if the reason for the failure to perceive the risk at hand was voluntary intoxication].
What is the Utilitarian rationale for the Insanity defense?
People suffering from severe cognitive or volitional disorders is undeterrable by the threat of punishment and, therefore, punishment is inefficacious.(specific deterrence)
But see: 1.) Infliction of punishment by INCAPACITATION is justified (as undeterrable people can be dangerous) --> abolish insanity defense;
2.) Punishment of insane people can serve as a warning to sane people who think they could feign mental illness (general deterrence)
What is the Retributivist rationale for the Insanity defense?
The defense separates the "mad from the bad," keeping those we consider sick distinct from those we consider evil. A person who is insane is not a moral agent capable of being condemned for moral violations.
What are the three CL tests for insanity we discussed in class?
1.) M'Naghten Test
2.) "Irresistible Impulse" ("Control") Test
3.) "Product (Durham) Test
Explain the M'Naghten Test.
A person is leaally insane if, at the time of his act, he was laboring under such a defect of reason, from disease of the mind, as:
1.) Not to know what he was doing (nature + quality of his act)
and
2.) Did not know what he was doing was wrong
Explain the "Irresistible Impulse" ("Control") Test.
Acts as a sort of supplement to the M'Naghten Test. A person is insane if, as the result of mental illness or defect, she "acted with an irresistible and uncontrollable impulse," of if she "lost the power to choose between right and wrong, and to avoid doing the act in question, as that [her] free agency was at the time destroyed."
Explain the "Product" (Durham) Test.
A person is excused if his unlawful act was the product of a "mental disease or defect" (defined as "any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls.") --> Must prove: 1.) D suffered from a mental disease or defect and 2.) But for the disease or defect, D would not have committed the crime.
How does the MPC test for/treat insanity?
MPC retains the first element of the M'Naghten test (did not "know" what one was doing) and expands it by using "appreciate." (Note: also expands on irresistible impulse test). Under the MPC, a person is not responsible for her conduct if, at the time of the criminal act, as the result of a mental disease or defect (not defined), she lacked substantial capacity either
1.) to appreciate the criminality of her actions; or 2.) to confrom her conduct to the dictates of law.
(Note: TOTAL incapacity not required, only "substantial").
What is the significance of the MPC's treatment of insanity? [MPC 4.01]
1.) Cognitive Prong - "Appreciate" allows for deeper, fuller analysis of the individual's cognitive capacity; avoids judging b/w legal or moral wrong
2.) Volitional Prong - Avoids "irresistible impulse" in order to allow for a broader range of those who act illegally (so, even those not acting on impulse can be included) --> This all might be a little too in depth for DG's exam.
When does an Attempt occur?
An attempt occurs when a person, with the intent to commit a criminal offense, engages in conduct that constitutes that beginning of the perpetration of, rather than mere preparation for, the target (i.e., intended) offense. [In other words, offenses that have not come to fruition.]
Under modern CL, Is attempt to commit a felony a felony itself?
Yes, but it is a lesser felony than the target crime.
Explain the Merger doctrine.
A criminal attempt merges into the target offense, if it is successfully completed.
What is a rehabilitation (utilitarian) argument in favor of punishing attempts as severely as completed crimes?
One who attempts a crime is as in need of rehabilitation as one who actually completes the crime.
What are some general deterrence (utiliarian) arguments in favor of punishing attempts as severely as completed crimes?
1.) An attempt should be treated less severely because one who is not deterred by punishment for completed crime (before attempting) will not be deterred by punishment for attempted crime.
2.) Incentive to others out there to abandon their criminal plan before it reachts its culmination.
What is the CL "Last Act" Test for attempt?
Old test that everyone thinks is shit, by which a criminal attempt only occured when a person performed ALL of the acts she believed were necessary to commit the target offense. (Most cases, it won't be possible for the police to prevent the target offense if they must wait until the last act is committed in order to make an arreset)
What is the CL "Dangerous Proximity" Test as announced by Holmes (not Sherlock), for attempt?
Conduct must be "so near to the result that the danger of success is very great."
3 Factors:
1.) Nearness of the danger
2.) Substantiality of the harm
3.) Degree of apprehension felt
(More serious the offense, the less close the actor must come to completing the offense to be convicted).
What is the CL "Physical Proximity" Test for attempt?
An act must "go so far that it would result, or apparenlty result in the actual commission of the crime it was desgined to effect, if not extrinsically hindered or frustrated by extraneous circumstances." OR: actor's conduct must approach sufficiently near to the completed offense "to stand either as the first or some subsequent step in a direct movement toward the commission of the offense after the preparations are made."
What is the CL "Unequivocality"/"Res Ipsa Loquitur" Test for attempt?
A person is not guilty of a criminal attempt until her conduct ceases to be equivocal (i.e., her conduct, standing alone, demonstrates her criminal intent). --> Reduces the risk of a false conviction, but it might increase the risk that the plice will be unable to act quickly enough to prevent the target offense.
What is the CL "Probable Desistance" for attempt?
A person is guilty of attempt if she has proceeded past "the point of no return," i.e., the point past which an ordinary person is likely to abandon her criminal endeavor. --> Provides little guidance to the police.
The mens rea required for an attempt is comprised of two "intents." What are these?
1.) Intent to commit the acts that constitute the actus reus of an attempt (e.g., must perform an act that brings him in dangerous proximity to commission of the target crime.)
2.) Intent to commit the actus reus, WITH THE SPECIFIC INTENT TO COMMIT the TARGET offense. (Almost always the critical mens rea issue for attempt.)
So, is attempt a specific or general intent offense?
Attempt is a specific intent offense since it requires the specific intent to commit the target crime. (For ex.: Rape is a general intent crime, but attempted rape is a specific intent crime)
How does the CL treat what mens rea an actor must possess regarding an attendant circumstance in order to be guilty of attempt?
Some courts hold that a person may be convicted of a criminal attempt if he is reckless re: an attendant cricumstance, while other believe it is sufficient that the actor is culpable re: an attendant circumstance as is required for that element of the target crime. (What??)
What is "complete" attempt?
D has done every act necessary on his part to commit the target offense, but has failed to commit the crime.
What is an "incomplete" attempt?
D has NOT committed the last act necessary on his part or is interrupted before he's able to complete his attempt.
When is the distinction b/w "complete" and "incomplete" attempts of chief practical importance?
When conducting an attempt analysis under the MPC.
What is the MPC standard for attempt? [MPC 5.01]
The MPC abandons all the CL tests and has a "substantial step" (not defined) standard, under which one has gone far enough to constitute an attempt if the act or omission constitutes a substantial step in the course of conduct planned to culminate in his commission of the crime." (Must be "corroborative of the actor's criminal purpose.")
What is DG's MPC analytic for attempt?
1.)Complete?
+No --> go to (1)(c)
+ Yes --> Is the target offense a result crime (murder) (go to (1)(a)) or a conduct crime (DUI) (go to (1)(b))?

(AKA: 1. Conduct a substantial step toward the commission of an offense?
2. Strongly corroborative of the D's criminal purpose?)
Using the MPC, how does one deal with attendant circumstances as they relate to attempt?
Look to the target offense, determine the required culpability as to an attendaing circumstance, and then apply this mens rea to the attempt charge.
How does the MPC treat hybrid legal impossibility? [MPC 5.01(1)(a)]
It effectively abandons hybrid legal impossibility by requiring that a person is guilty of an attempt if the attendant circumstances were as he believes them to be.
What is Factual Impossibility?
What D wanted to do constitutes a crime, but D is unable to do so because of a factual (attendant) circumstance not known to him or beyond his control. (e.g., soliciting sex from a cop you thought was a minor or trying to fire a loaded gun at someone's head). (Not a defense to attempt)
What is Pure Legal Impossibility?
What D wants to do (believing what she will do is a crime), and does, is not actually a crime, but ends up being lawful conduct. (This is a defense to attempt.)
What is Hybrid Legal Impossibility
Occurs when actor's goal IS illegal (distinguishing it from pure legal impossibility), BUT commission of the offense is IMPOSSIBLE due to a mistake by the actor regarding the LEGAL status of some FACTUAL circumstance relevant to her conduct (e.g., D tries to pick the pocket of a stone statue, or D receives property she believes was stolen, but was actually not).
What does voluntary abandonment (renunciation) do to mens rea?
It effectively eliminates an actor's mens rea to commit a crime.
How does the MPC treat abandonment? [Comments to 5.01]
It recognizes the defense if voluntary and only if the D can halt the effects of his attempt; if he is powerless to stop what he has set in motion, however, he cannot use the defense. Must also manifest a renunciation of criminal purpose, not just a postponement (of comitting the crime) to a later date.
How does the CL treat abandonment?
Traditionally, never a defense. Abandonment is a defense when it is complete and voluntary. Once the D's actions have passed the point of being an attempt, abandonment is not typically a defense.
At CL, what is assault?
It is the crime of intentionally putting another in fear of bodily injury, even if the offender doesn't actually intend to carry out a battery. (Either: 1.) Attempt to commit battery OR 2.) Intentional subjection of another to the reasonable apprehension of receiving the battery.
Do attempt doctrines apply to assault?
No, since the CL recognized assault as an offense before criminal attempt law, attempt doctrines do not apply to it. Assault generally requires closer proximity to completion than attempt.
What is solicitation?
At CL, a person is guilty of solicitation is he intentionally invites, requests, commands, or encourages another person to engage in conduct constituting a CRIME. (NOTE: In order to solicit someone you MUST solicit them to do a CRIME, not to merely, say, send something in the mail for you which has secret criminal shit going on in it.)
How does the merger doctrine work for solicitation, and how does it bridge solicitation to accomplice liability?
If D solicits X to commit a crime which X KNOWS is a crime, and X actually commits the crime, he becomes an accomplice. If he had refused, he would merely have been solicited. (Again, note the requirement that one actually be soliciting a CRIME.)
What is the actus reus requirement for solicitation?
Actor communicates the words or performs the physical act that constitutes the invitation, request, command, or encouragement of the other person to commit an offense.
CL: Words or conduct indicating soliciation must be SUCCESSFULLY communicated to the solicited party.
MPC: One who unsuccessfully attempt communicate a soliciation is still guilty of solicitation. [MPC 5.02(2)]
To be guilty of solicitation, must you ask someone to perform the crime herself or can you merely ask her to assist you in the crime?
CL: Must ask another to perform the crime herself.

MPC: Can be guilty just for asking another to assist you.
What is the mens rea requirement for solicitation?
CL: Specific-intent; must intentionally commit the actus reus with specific intenat that the other commit the target offense.

MPC: Same analysis (Remember: MPC does not deal in specific/general intent concepts) as CL unless person acts with the purpose of promoting or facilitating the commision of the solicited offense. [MPC 5.02(1)]
Begin conspiracy with this example:
If A and B commit the crime of conspiracy to commit murder, and if A then commits the murder, not only are both persons guilty of the crime of conspiracy, but B - who did not commit the murder - may be convicted of murder as well because "conspiracy" also serves as a basis for holding persons responsible for the actions of others (co-conspirators). (i.e., conspiracy is a doctrine of complicity, but DIFFERENT from accomplice liability)
What is conspiracy?
CL: An agreement (and agreement alone) b/w 2 or more persons to commit an unlawful act or series of unlawful acts. ("It is the agreement itself that is the key, under the CL." -->DG)
What is a policy argument in favor of conspiracy?
Collective actions can pose a greater social threat (and danger) than the actions of a single person.
Does the merger doctrine apply to conspiracy?
CL: No, because punishment for both the conspiracy itself AND the target crime committed helps to prevent the aggravated social threat posed by collective, conspiratorial actions.

MPC (1.07(1) : Yes, conspiracy does merge with the target offense, so you're punished only for the target offense.
What is the actus reus of conspiracy?
CL: Focus is on the formation of an agreement. Agreement by two or more parties to commit an unlawful act(s). Once there is agreement, the conspiracy is established and COMPLETE.

MPC: Person is guilty if "with the purpose of promoting or facilitating commission of the crime, "agrees with such other person or persons that they will" commit the crime or attempt to or solicit to do so OR if a person agrees to AID another in doing the same. [MPC 5.03(1)]
How does the MPC actus reus for conspiracy differ from the CL?
1.) MPC requires an OVERT act, except for felonies in the first and second degree.
2.) The object of the agreement must be a CRIME, not merely an unlawful act.
What is the mens rea of conspiracy?
CL: 1.)Intent to form an agreement (Actus reus of conspiracy) and 2.) Intent for the target offense to be committed AT THE TIME OF FORMATION OF THIS AGREEMENT. --> This makes CL conspiracy SPECIFIC intent.

MPC: Person must act with the PURPOSE of promoting or facilitating the commission of the conduct that constitutes a CRIME.
What is one primary difference between the CL and the MPC?
CL requires a plurality agreement (no person is guilty unless two or more persons possess the requisite mens rea), while the MPC focuses on the individual.
Under the CL, how do we deal with the problem of purpose to further a conspiracy v. mere knowledge that illegal activity is going on?
1. When the issue is liability of the supplier of a LAWFUL good, as a general matter, both knowledge of the illegal use to which the item will be put AND purpose to further that use must be present.
A. Knowledge
B. Purpose (difficult, but can be inferred)
i. Provider of legal goods for illegal use has stake in the illegal venture. (Financial gain)
ii. From knowledge when no legit use of goods or services exists.
iii. From knowledge when volume of business w/ buyer is GROSSLY disproportionate to any legit demand
2. Sometimes knowledge alone suffices w/o proof of purpose
A. Very severe offenses involved
How is this problem addressed under the MPC?
MPC requires PURPOSE in ALL cases; CANNOT be inferred as under the CL. Knowledge ALONE NEVER suffices under the MPC.
Under the MPC , if you intend to withdraw from the conspiracy, what must you do to effectuate this? [MPC 5.03(6)]
A person is not guilty of conspiracy under the MPC if he renounces his criminal purpose, and then thwarts the success of the conspiracy "under circumstances manifesting a complete and voluntary renunciation of his criminal purpose."
Under CL, once an overt act in furtherance of the conspiracy is undergone, can a member of a conspiracy who has successfully communicated his intent to withdraw from the conspiracy (to all members) be shielded from liability for the conspiracy?
No, even if one withdraws from the conspiracy, he may only alleviate himself of future acts of the conspiracy, but maintains guilt for the crime of conspiracy itself and for any crime committed while he was a member of the conspiracy.
Under the CL (related to accomplice liability), what are the four types of party to any felony?
1.) Principals (1st degree) - Actually engage in the act or omission that constitutes the criminal offense.
2.) Principals (2nd Degree) - Aid, command, or encourage the principal and are present, either actively or constructively, at the crime.
3.) Accessories before the fact - Person who aid, abet, or encourage the principal but are not present at the crime.
4.) Accessories after the fact - Persons who, with knowledge of the other's guilt, assist the principal after the crime.
Principals in the 2nd degree have the same culpability as principals in the 1st degree and are treated alike.
TITS
How is accomplice liability derivative liability?
It is incurred by virtue of the violation of a law by a primary party in which the secondary party (i.e., accomplice) has contributed.
At CL, aiders and abettors have to do 2 things. What are they? (Note: aiding and abetting is not a crime in and of itself; these secondary parties are convicted of the offense committed by the primary party).
1.) Give assistance or encouragement OR fail to perform a legal duty (actus reus) --> [Can consist of agreement to aid, active assistance, encouragement of the crime, failure to stop it where one has a legal duty).
2.) Intent to promote or facilitate the commission of the crime (mens rea)
What does the MPC say about accomplice liability? [MPC 2.06]
A person is guilty of an offense that she did not personally commit if she is an accomplice of another person in the commission of the offense.