Criminal Law Short Outline

Essential Supplements for Success in Crim Law:

1L Law School Criminal Law outline based on the following books:

Criminal Law

  1. The Role of the Criminal Law
    1. The Rational for Punishment
      1. Model Penal Code §1.02
      2. Theories of Punishment
        1. Retribution
          1. Punishment is deserved simply because a ‘wrong’ was committed.
          2. Morally right even if there is no future gain (unlike Utilitarian).
        2. Deterrence: Prevent the commission of future offenses.
          1. General: Punishment deters potential offenders in the community.
          2. Specific: Infliction upon person leaves him unlikely to commit crime.
        3. Reformation
          1. Prisoner is safe to be returned to society
          2. Paternalistic: Prisoner is able to lead a productive life.
        4. Incapacitation
          1. Collective: Same sentence for all convicted of a certain crime.
          2. Selective: Individualize sentences based on probability of recidivism.
          3. Criminal Career: Based on patterns of repeat offenses.
      3. The Death Penalty
        1. Policy Considerations
          1. Deterrence. Questions remain about success as a deterrent. Real question should be comparison with life sentences without parole.
          2. Error. Bedau study. Risk of error outweighs all benefits.
          3. Discriminatory Administration.
          4. The Sanctity of Human Life.
        2. Constitutional Limitations
          1. Equal protection: Disproportionate numbers of blacks executed violated the equal protection clause of the 14th Amend. Maxwell v. Bishop (1970) – evidence insufficient to establish such claim.
          2. Procedural Due Process: Due process required that explicit criteria of decision be provided. Denied by McGautha v. California (1971)
          3. Cruel and Unusual punishment: Violation of the 8th Amendment.
            1. Furman v. Georgia (1972): Capital punishment, as then administered, violated the 8th amendment. Two options:
              1. Make death penalty mandatory in certain cases.
              2. Establish guidelines for administering death penalty.
            2. Gregg v. Georgia (1976): New guidelines were acceptable.
              1. Must not involve unnecessary and wanton infliction of pain.
              2. Not be grossly out of proportion to the severity of the crime.
            3. McCleskey v. Kemp (1987): Study showing that death penalty in Georgia was race-biased was not effective in overturning.
    2. Constraints on Imposing the Criminal Sanction
      1. Limitations on the Criminal Law
        1. Bill of Rights:
          1. 1st: Freedom of speech and expression.
          2. 4th: Unreasonable searches and seizures.
          3. 5th: Due Process Clause
            1. Procedural fairness
            2. Substantive component: recognizes basic values underlie society.
          4. 8th: Cruel and Unusual punishment.
        2. Fourteenth Amendment: Due Process imposed upon states.
        3. Right to Privacy: Derived from the Due Process Clause as a substantive right — basic value that underlies society and is implicit in liberty.
      2. Proportionality: Punishment should be proportional to the crime.
        1. Coker v. Georgia (1977): Death is disproportionate for crime of rape.
        2. Rummel v. Estelle (1980): Life sentence given for third minor offense. Upheld, Ct. would defer to legislature’s judgment of proportionality.
        3. Solem v. Helm (1983): Nearly same facts as Rummel. Ct. overturned life sentence given. Made same arguments rejected prior.
      3. Legality: Not criminal or punishable unless legislature deems so.
        1. Prevents punishment ex post facto (after the fact). Used to get enemies.
        2. Sufficient warning that men may conform their conduct so as to avoid that which is forbidden.” Rose v. Locke. Due process of law.
        3. Statutes may not be unduly vague or uncertain.
        4. Law enforcement must not have virtual discretion to interpret statutes.
    3. The Institutions of the Criminal Law
      1. Legislation
        1. Establish rules to prevent decisions on ad hoc basis.
        2. Publicize or make available the laws to be followed.
        3. No retroactive legislation.
        4. Make rules understandable.
        5. Avoid contradictory rules.
        6. Cannot require conduct beyond the powers of the affected party.
        7. Frequent changes prevent ability to abide by them.
        8. Lack of congruence between rule as announced and administration.
      2. The Criminal Process – Overview
        1. Accusatory (Probable Cause)
          1. Arrest
          2. Complaint
          3. Magisterial hearing – bail – counsel appointed.


        1. Grand Jury Indictment precedes 1 – 3.
      1. Pre-trial screening. (Probable Cause)
        1. State must have a right to prosecute.
        2. Evidence
      2. Trial.
        1. Jury Selection.
        2. Opening Arguments.
        3. Government’s case in chief: All evidence is presented.
        4. Always motion to dismiss by defendant – Judgment of Acquittal.
        5. Defendant may present a case.
        6. Closing Arguments.
        7. Judge’s instructions to jury.
        8. Verdict.
          1. Not Guilty. No appeals, case is completed.
          2. Guilty. Judge may over turn. No reasonable jury . . .
      3. Review of Guilty Verdicts.
        1. Appeal
        2. Collateral Process — Habeas Corpus
    1. Burden of Proof – Model Penal Code §1.12
      1. Prove every element of the offense beyond a reasonable doubt. Element includes the absence of “excuses” and “justifications.”
      2. MPC places a higher burden on the prosecutor than Due Process Clause.
  1. The Substantive Criminal Law
    1. The Elements of a Criminal Law
      1. Act Requirement — Actus Reus; Voluntary Act
        1. Distinguished from thoughts, words, possession, and status.
          1. Statement of intent to a third party is not sufficient; need act.
          2. Knowledge of possession is necessary.
          3. Cannot be convicted for having a certain status or condition.
        2. Act must be voluntary. Excludes reflex or convulsion, unconsciousness or sleep, or hypnosis.
        3. Omissions: Not liable for failure to act.
          1. Special Relationships
          2. Contractual
          3. Statutory
          4. Voluntary assumption of care / seclusion
          5. Creation of risk.
        4. Model Penal Code §2.01
          1. Establishes common law principle of voluntary act. “includes a voluntary act” allows a person to be guilty despite the presence of an involuntary act. Example: epileptic seizure causes accident; still guilty since killing act was base on voluntary act of driving.
          2. Defines ‘act’ but not ‘voluntary.’ Examples included.
          3. Omissions: two situations where it may occur.
          4. Possession: An act if aware of control for sufficient time.
      2. Intent — Mens Rea; Culpable state of mind.
        1. A guilty or wrongful purpose; a criminal intent (different crime to crime).
        2. Motive v. Intent: Immaterial in establishing criminal liability. Motives create an intent to act, while intent itself is merely a determination to act in a certain way.
        3. Types of intent.
          1. General Intent.
            1. All that must be shown is that the defendant desired to commit the act which served as the actus reus.
            2. Reserved for mental state of negligence and usually, recklessness.
            3. Intentionally”: Typically used in general intent statutes.
          2. Specific Intent.
            1. Requires additional mental state beyond the “general intent.”
            2. One of the following mental states:
              1. Intent to commit a future act that is not part of actus reus.
              2. Special motive or purpose to commit the actus reus.
              3. Awareness of an attendant circumstance of crim. conduct.
              4. Examples (in order): Burglary, Larceny, Receipt Stolen Goods.
          3. Transferred Intent: Simply, mens rea for offense existed.
        4. Model Penal Code §2.02
          1. Three types of actus reus elements (not explicit in MPC):
            1. Conduct: In terms of a harmful conduct (DUI).
            2. Result: In terms of a prohibited result (murder).
            3. Attendant circumstances: Facts attend the result or conduct. (Burglary — “night” or “dwelling house”)
          2. Four-Step Analysis:
            1. Identify the actus reus of the offense.
            2. Separate the actus reus into each constituent element.
            3. Determine the mental state required for each element.
              1. §2.02(4) — The culpability provision shall apply to all the material elements unless specifically distinguished.
            4. Determine whether requisite culpability for each act was met.
          3. MPC Culpability/Mental State Terms — §2.02(2):
            1. Purposely:
              1. Conduct or result: Conscious objective to engage in the conduct or to cause such a result.
              2. Attendant Circumstances: Aware of such circumstances or believes or hopes that circumstances exist.
            2. Knowingly:
              1. Conduct or circumstances: Aware that conduct is of that nature or that such circumstances exist.
                1. Problem of ‘Willful blindness’: purposely avoid learning that suspicions are correct.
                  1. §2.02(7): Knowledge is established if a person is aware of a high probability of circumstance’s existence, unless he actually believes that it does not exist.
              2. Result: Aware of practical certainty that conduct will produce such a result.
            3. Recklessly: One form of criminal risk-taking.
              1. Consciously disregards a substantial and unjustified risk that circumstance exists or will result from conduct.
              2. substantial and unjustifiable”: Considering the nature and purpose, disregard involves a gross deviation from the standard of conduct of a law-abiding person.
            4. Negligently: Other form of criminal risk-taking.
              1. Should be aware of a substantial and unjustifiable risk that circumstance exists or will result from conduct.
              2. substantial and unjustifiable”: Considering the nature and purpose, disregard involves a gross deviation from the standard of conduct of a reasonable person.
            5. Differences between Recklessly and Negligently:
              1. Require the same degree of risk-taking.
              2. Consciously disregards” v. “should be [but is not] aware of”
              3. Law-abiding person” v. “Reasonable person”
        5. Strict Liability — conviction in the absence of mens rea.
          1. Types of Offenses:
            1. Public Welfare: Deals with prohibited conduct, wrong therefore.
            2. Traditional offenses:
              1. Common law crimes: Felony murder.
              2. Statutory crimes.
          2. Model Penal Code:
            1. §2.02: Notes explicitly rule out strict liability in the penal law.
            2. §2.05: Exception for ‘violations,’ which only result in fines.
        6. Mistakes of Fact: Unconscious ignorance of a material fact; no mens rea.
          1. Strict-liability offenses: No defense. By definition, no mens rea.
          2. Specific Intent Offenses:
            1. Specific Intent portion: Mistake serves as a defense.
            2. General Intent portion: Apply rule used on general intent offenses.
          3. General Intent Offenses:
            1. Rules used in common law to make decision:
              1. Reasonableness of Mistake.
              2. Moral-Wrong Doctrine: Actor’s moral culpability on the basis of his blameworthiness for making the mistake. (departure)
              3. Legal-Wrong: Replace ‘moral’ with ‘legal’. Assume risk that he conducted the more serious offense.
              4. Regina v. Morgan: “Element approach” requires a negation of the culpability. Same as specific intent in common law.
          4. Model Penal Code §2.04
            1. Follow the “element approach” under §2.02.
            2. §2.04(1)(a) — Defense if it negates the mental state required to establish an element of the offense.
            3. General or specific intent is irrelevant.
            4. Exception: §2.04(2)
              1. Not available as complete defense if situation believed by person is still a crime.
              2. Found guilty of lesser crime to insure proportionality.
        7. Mistakes of Law — generally, ignorance of the law is no excuse
          1. Subin’s Definitions of Mistake
            1. True Mistake: As to law defining the issue.
            2. Mistake: As to material element of the law.
          2. Common Law Exceptions:
            1. Types of Mistakes:
              1. Same law” — regarding law prosecuted under. (True)
                1. Authorized reliance.
                2. Fair notice: The Lambert principle.
                  Some limits under Due Process Clause.
              2. Different law” — regarding a different law. (Not True)
                1. Specific Intent: Defense if it negates the specific intent.
                2. General Intent: No defense, whether reasonable or not.
                3. Strict Liability: No defense. No mens rea.
          3. Model Penal Code §2.04(3) — generally does not recognize defense.
            1. Same Law mistakes:
              1. §2.04(3)(a) — Fair Notice (similar to Lambert)
                1. Does not believe conduct was illegal; and
                2. Criminal statute was not known; and
                3. Statute was not published or reasonably available.
              2. §2.04(3)(b) — Authorized Reliance
                1. Reliance on an official but erroneous statement of law.
                2. Statement found in statute, decision, order, grant, etc. by a public official or body responsible for interpretation.
                3. Reliance is reasonable.
            2. Different Law mistakes:
              1. §2.04(1)(a) — Same as mistake of fact. Defense only if it negates a material element of the offense.
              2. Knowledge as to offense is not usually a material element.
      3. The Relation of Act to Intent
        1. Causation
          1. No Mechanical Principles to determine Causation.
          2. Cause-in-fact — Actual Cause:
            1. Tests:
              1. Sine qua non: But for D’s voluntary act would the social harm have occurred when it did?”
              2. Substantial Factor: Was D’s conduct a substantial factor in bringing about the forbidden result? Result includes “but for” causes and more. (i.e. despite action of another)
            2. Conditions:
              1. Normal events or circumstances that, although necessary for the result to occur, do not positively contribute to it. Ex. is person’s weakened heart accelerated death from gunshot.
              2. Not a Cause: Although it meets the sine qua non test, it is not a cause. Common sense view dictates this.
            3. Mens Rea and Causation: Once can exist without the other.
            4. Exceptions and examples:
              1. Exclusive and sole cause not required (Arzon)
              2. Intervening act: guilty if substantial contribution, not just sole.
              3. Responsible for chain of natural causes.
              4. Subsequent injury by another: both parties can be found guilty.
          3. Proximate Cause — Legal Cause
            1. Must show that act and harm are sufficiently closely related.
            2. Direct Cause: If there is an uninterrupted causal link between act and harm, then it is the proximate cause.
            3. Intervening Causes:
              1. Result must be foreseeable or substantial caused by the act.
              2. Intended consequences can never be too remote.
              3. Causal responsibility ends when the danger from the original actor’s conduct has effectively terminated.
              4. Free, deliberate, and informed” intervention ends causation.
            4. Proximate Cause v. Intent: Intent decides the degree of the crime while proximate cause determines if you can be held at all.
          4. Model Penal Code §2.03
            1. Actual Cause
              1. But for” Test adopted in §2.03(1)(a).
              2. Substantial Factor Test rejected in comment.
            2. Proximate Cause
              1. Proximate causation is dumped by the MPC.
              2. Proper scope of liability in light of the actor’s culpability.” Comment, p. 260.
              3. Two tests to determine requisite culpability:
                1. Non-strict liability: Lacking if the actual result was “too remote or accidental in its occurrence to have a bearing on the actor’s liability or on the gravity of the offense.” MPC §§ 2.03(2)(b) & (3)(b).
                2. Strict Liability: Causation “is not established unless the actual result is a probable consequence of the actor’s conduct.” §2.02(4)
        2. Attempt
          1. Definition: When a person, with the intent to commit a specific offense, performs any act that constitutes a substantial step toward the commission of that offense. Otherwise, two components:
            1. A specific intent to commit a crime.
            2. Act in furtherance of intent which go far enough toward completion.
          2. Mens Rea:
            1. Intent to commit the acts or cause the result constituting a crime.
            2. Intent necessary for the completed crime.
          3. Actus Reus: An act that progresses sufficiently toward the commission.
            1. Traditional approach:
              1. Perpetration v. preparation: Go beyond mere preparation.
              2. Dangerous proximity to success: Not necessary for accused to go through with the last act of criminal purpose. (Peaslee)
            2. Alternative Approaches:
              1. Physical Proximity: Focus on what remains to be done.
              2. Control over all indispensable elements: Nothing must be left undone that would prevent the defendant from success.
              3. Probable Distance”: Under ordinary course, would lead to completion in the absence of intervening outside factors.
              4. Equivocality” or Res Ipsa: Firmly shows actor’s intent.
          4. Model Penal Code § 5.01
            1. Definition of Attempt: § 5.01(1)
              1. If D did everything that she intended to do, but the crime was not successfully committed, subsection (1)(a) or (1)(b) is applied.
              2. Subsection (1)(a) applies if D is prosecuted for an attempt to commit a crime defined in terms of conduct;
              3. Subsection (1)(b) applies if the statute prohibits a result.
              4. Subsection (1)(c) covers all remaining cases, namely those circumstances in which the D has performed acts in furtherance of a crime but more conduct was planned. This subsection seeks to determine where planning ends and perpetration begins.
            2. Mens Rea
              1. Generally: Conscious objective (purpose) to engage in the conduct or to cause the result that will constitute the substantive crime.
              2. Exceptions:
                1. Belief: (1)(b) explicitly and (1)(c) implicitly provide guilt if D believes that the result will occur, even if it were not conscious objective to cause it.
                2. Mens Rea as to attendant circumstances is not necessary for attempt. Comment, (1)(a) – “acting with … “
            3. Actus Reus
              1. Substantial Step”
                1. § 5.01(1)(c) — “act or omission constituting a substantial step in a course of conduct to culminate …”
                2. Defined in § 5.01(2)
                  1. Must strongly corroborate the D’s criminal intent.
                  2. List of factual circumstances which are acceptable.
              2. Attempt to Aid — § 5.01(3)
        3. Solicitation:
          1. Misdemeanor to counsel, incite, or induce another to commit or to join in the commission of any offense, whether that offense is a felony or a misdemeanor.
          2. Model Penal Code § 5.02(1)
            1. Applies to all crimes.
            2. Recognizes solicitation to commit attempt.
            3. Relationship need not be accomplice to perpetrator.
        4. Impossibility: Law for conduct that for some reason cannot succeed.
          1. General: Hornbook Common Law; legal is a defense; factual is not.
          2. Types of Impossibility
            1. Factual
              1. Define: Failure due to an unknown factual circumstance
              2. Never a defense; facts as believed, would have been a crime.
            2. Pure Legal or True Legal:
              1. Define: Occurs when criminal law does not prohibit the conduct or result sought to be achieved. D usually mistaken of how offense is defined in the statute.
              2. Always a defense.
            3. Hybrid Legal (Mistake of Fact):
              1. Define: Factual impossibility related to legal relation. / status
              2. Varies, generally no defense; can be viewed as factual imposs.
          3. Model Penal Code § 5.01
            1. § 5.01(1): Abolishes factual and hybrid impossibility.
            2. Pure Legal kept; consistent with Legality. Comment, § 5.01.
      4. Accessorial Liability
        1. Complicity
          1. Define: One who intentionally assists other to engage in conduct that constitutes an offense.
          2. Common Law Categories
            1. Principles in the First Degree. Person with mens rea who:
              1. Personally commits the act.
              2. Commits the act through use of an innocent agent.
            2. Principles in the Second Degree:
              1. Present at the time of commission and aids it.
              2. Constructive Presence: Presence need not be actual. May be in a position to assist the principal. (lookout, getaway car)
              3. Substantial Contribution to the commission.
            3. Accessory before the fact:
              1. One who is absent at time of the offense but who procured, incited, counseled, advised, encouraged, commanded . . .
              2. Knowledge: Must be encouragement; knowledge insufficient.
              3. Proceeds: Need not share in the proceeds.
            4. Accessory after the fact:
              1. One who, knowing that a felony has been committed, aided, assisted, comforted, or received a felon.
              2. Must be actual intent to assist. Failure to notify is insufficient.
          3. Mens rea: Need two mental states:
            1. Intent to assist in the conduct.
            2. At least the level of culpability provided in the definition of the crime.
          4. Actus Reus: “But for” test need not be satisfied as long as mens rea is present.
          5. Model Penal Code § 2.06
            1. Define: Guilty of offense if “by his won conduct or by the conduct of another person for which he is legally accountable, or both.” § 2.06(1)
            2. Types of Legal Accountability:
              1. Through an Innocent Person: § 2.06(2)(a)
                1. Sufficient mental state for the offense; and
                2. Causes innocent person to engage in the criminal conduct.
              2. Miscellaneous Accountability: Guilty if law so provides. § 2.06(2)(b)
              3. Accomplice Accountability: Legally accountable for the conduct of another person if he is an accomplice (see § 2.06(3)). § 2.06(2)(c)
            3. Nature of Accomplice:
              1. Solicits; aids, agrees to aid, or attempts to aid; or has a legal duty to prevent the commission, but does not. § 2.06(3)(a)
              2. Mens Rea:
                1. With the purpose of promoting or facilitating the commission of the offense.” § 2.06(3)(a)
                2. Acted with the culpability, if any, for the offense. § 2.06(4)
            4. Limits to Liability. § 2.06(6)
        2. Conspiracy
          1. Must show the following elements:
            1. An agreement between two or more persons.
            2. Objective: To carry out an act which is either unlawful or which is lawful but to be accomplished by unlawful means.
            3. Mens Rea: A culpable intent on the part of the defendant.
          2. The Agreement
            1. Meeting of the minds is not required.
            2. Only need communication of intention to pursue a joint objective.
          3. Mens Rea
            1. Intent to agree
            2. Intent for further, unlawful conduct to be achieved.
            3. Some jurisdictions include the mental state required for the object crime. Often view conspiracy as a specific intent crime.
          4. Conspiratorial Objective.
            1. Unlawful objective or lawful objective through unlawful means.
            2. Includes corrupt, dishonest, fraudulent, and immoral acts.
          5. Structure of conspiracies.
            1. Wheel: One person or group serves as the “hub.”
            2. Chain: Linear fashion.
            3. Chain-Wheel: Combination of the two.
          6. Exception of hearsay rule: Out-of-court statement by a conspirator made while participating in the conspiracy may be introduced against the other conspirators.
          7. Defenses:
            1. Impossibility
            2. Abandonment. Must leave and try to stop the crime.
            3. Wharton’s Rule. Only those necessary to commit crime are guilty.
          8. Model Penal Code § 5.03
            1. Definition — § 5.03(1):
              1. With purpose of promoting or facilitating its commission
              2. Agrees with another that one will engage in attempt, solicitation, or actual conduct of the crime; or
              3. agrees to aid another in planning or commission of attempt, solicitation, or actual conduct of a crime
            2. § 5.03(2): Additional guidance in determining if conspiracy exists.
            3. The Agreement: § 5.03(1) – sufficient to agree that one would act.
            4. Mens Rea: “With the purpose of promoting or facilitating” § 5.03(1)
            5. Conspiratorial Objective: Must be a crime.
            6. Defenses: Only abandonment is accepted as an affirmative defense.
    2. Defenses
      1. Justification: Conduct otherwise criminal, which under the circumstances is socially acceptable and which deserves neither criminal liability nor censure.
        1. Self-defense.
          1. Definition: Generally, a person is privileged to use such force as reasonably appears necessary to defend herself against an apparent threat of unlawful and immediate violence from another.
          2. Elements:
            1. Reasonable belief in necessity. An honest and reasonable is enough, even when it turns out that the belief was wrong and there was no need.
            2. Threatened harm imminent. Must reasonably believe that the threatened harm would be inflicted immediately if self-defense was not taken.
            3. Threatened harm unlawful.
            4. Reasonable force. Must not be greater than appeared necessary under the circumstance to prevent the victim from inflicting the harm.
          3. Deadly force: Must reasonably believe that the other was about to inflict death or great bodily injury and that deadly force was necessary to prevent the harm.
          4. Retreat: Duty to retreat before the use of force. No duty where retreat cannot be done safely, or where the attack takes place in the defendant’s own home.
          5. Aggressor’s Right to Defense:
            1. Nondeadly aggressor may use reasonable force to repel deadly force.
            2. Regain right to self defense after withdrawing from the altercation.
          6. Reasonable: What reasonable person would do in the D’s situation.
          7. Battered Women’s Syndrome: Expert testimony admissible for such claims.
          8. Model Penal Code §3.04 — Use of force in self-protection.
            1. General Rule: Justified in using force if he believes that such force is immediately necessary to protect himself against the use of unlawful force on the present occasion. §3.04(1)
              1. Subjective belief: Belief need not be “reasonable.”
              2. Immediately necessary”: Not imminence, allows earlier protection.
            2. Deadly force
              1. Unjustifiable unless necessary to protect from (§3.04(2)(b)):
                1. Death
                2. Serious bodily injury
                3. Forcible rape.
                4. Kidnapping
              2. Impermissible Use:
                1. Never usable by aggressor.
                2. If avoidable through retreat.
        2. Defense of Property:
          1. Deadly force is not allowed.
          2. Nondeadly force: If reasonably appears necessary to prevent or terminate.
            1. Request to desist: Not reasonable unless a prior request has been made.
            2. Property in possession of another: Must be in possession of the person using force to be justifiable.
          3. Spring guns and traps are not to be used.
          4. Model Penal Code §3.06 — Protection of Property
            1. Nondeadly force — §3.06(1):
              1. Conduct is unlawful.
              2. Personal possession or in possession of someone for whom he acts.
              3. Force is immediately necessary.
            2. Deadly Force — 3.06(3)(d)
              1. If being deprived of dwelling.
              2. Person has no claim of right of possession to the dwelling.
              3. Force is immediately necessary to prevent.
            3. Request to Desist — 3.06(3)(a)
            4. Trap guns — 3.06(5)
        3. Law Enforcement:
          1. Assistance to police:
            1. Asked by officer: Same privileges as the officer since you are required by law to comply with officer’s orders.
            2. Otherwise, aiding law enforcement removes criminal intent, but other liability remains intact.
          2. Effectuating arrest:
            1. Police Officers:
              1. Nondeadly force: Whatever necessary to make an any arrest.
              2. Deadly force: If suspect has committed a dangerous felony or presents a significant risk of harm to others.
            2. Private citizens
              1. Deadly force: limited to forcible or atrocious felonies.
              2. Notice: Must give notice of intention to arrest.
              3. Deadly force: Must have actually committed a felony; no guesses.
          3. Model Penal Code § 3.07 — “Use of Force in Law Enforcement”
            1. Authority to Arrest: see § 3.03 — “Execution of Public Duty”
            2. Use of force, in general, is justified if: (3.07(5)(a))
              1. Belief regarding Criminal is:
                1. Criminal is about to commit suicide
                2. Cause serious bodily injury to self
                3. A crime involving or threatening bodily injury
                4. Damage to or loss of property
                5. Breach of the peace.
              2. Force is immediately necessary to prevent commission.
            3. Deadly force is justified only if:
              1. Substantial risk exists that criminal will cause death or serious bodily injury to another person unless she is prevented.
              2. Use presents no substantial risk of injury to bystanders.
        4. Necessity
          1. Elements
            1. Reasonably believe that:
              1. Threat of imminent harm to himself or others exists; and
              2. Only way to prevent the threatened harm is to violate the law.
            2. Not at fault for creating the emergency situation.
            3. Harm caused by violation of law is less serious than harm being avoided.
          2. Limitations
            1. Emergencies created by natural physical forces.
            2. Economic necessity” is not a defense to theft.
            3. Not applicable to homicide cases.
          3. Model Penal Code § 3.02 — “Choice of Evils”
            1. Elements
              1. Conduct was necessary to avoid harm to self or to another;
              2. Harm to be avoided is greater than unlawful harm caused;
              3. No legislative intent to exclude the conduct exists.
            2. Differences:
              1. Imminence requirement is rejected.
              2. Creation of emergency situation is rejected.
              3. Applicable in all situations, including homicide.
              4. Allows legislatures to make value judgments.
      2. Excuse: Circumstances where wrongdoer is not morally to blame for committing an act.
        1. Duress or coercion:
          1. Elements:
            1. If person or family is threatened with death or serious injury.
            2. Reasonably believe that the threat is real.
            3. Reasonably believe that succumbing is only way to prevent threat.
            4. Not at fault for being in the coercive situation.
          2. Coercion from natural sources is not acceptable.
          3. Model Penal Code § 2.09
            1. Elements
              1. Coerced by use, or threat, of unlawful force against self or other.
              2. Person of reasonable firmness would have been unable to resist the coercion. § 2.09(1)
            2. Exception: If person negligently placed themselves in the situation. 2.09(2)
            3. Person of Reasonable Firmness”: Establishes a objective test.
            4. Differences with Common Law
              1. Imminence is rejected.
              2. Other need not be a relative.
              3. Degree of force is not a factor.
        2. Entrapment
        3. Intoxication
          1. Voluntary Intoxication:
            1. Rule:
              1. Voluntary Intoxication is never an excuse for criminal conduct.
              2. The condition caused by intoxication may be exculpatory.
            2. Exceptions, if proved that:
              1. Lacked mental state necessary for the offense.
              2. Unconscious at the time or actions were otherwise involuntary.
              3. Suffered from long-term intoxication-induced “fixed” insanity.
            3. Generally used to show that D could not have formed the mens rea.
          2. Involuntary Intoxication:
            1. Intoxication is involuntary if:
              1. Induced by mistake.
              2. Fraud or coercion involved.
              3. Suffers from pathological intoxication.
              4. Intoxicated from prescribed medicine.
            2. Rule; Acquittal if:
              1. Same situations as voluntary intoxication.
              2. Did not form the general intent.
              3. Fulfills the state’s definition of insanity.
          3. Model Penal Code § 2.08
            1. Three types of intoxication (case law):
              1. Self-induced (Voluntary)
              2. Pathological
              3. Not self-induced (involuntary)
            2. Rules:
              1. Any form is a defense if an element of the offense is negated. §2.08(1)
              2. Pathological and involuntary are affirmative defenses if they cause the suffering from a mental condition comparable to insanity. §2.08(4)
            3. Approach is that mens rea is required no matter what.
            4. Recklessly: redefined in § 2.08(2) for intoxication. Allows conviction.
        4. Diminished Capacity: Abnormal mental condition short of insanity.
          1. Mens Rea” Defense: Expert evidence of diminished capacity is used as evidence to show that requisite mental state was not present.
          2. Partial Responsibility” Defense: Not a Defense.
          3. Model Penal Code § 4. 02
            1. Mens Rea” defense is admissible whenever relevant. § 4.02(1)
            2. §210.3(1)(b) — Allows manslaughter committed as a result of “extreme mental or emotional disturbance for which there is a reasonable explanation or excuse.”
      3. Insanity
        1. Cannot be found guilty if found insane.
        2. Tests for Insanity
          1. M’Naghten Approach:
            1. As a result of mental illness he either:
              1. Did not know the nature and quality of his act.
              2. Did not know that the act was wrong.
            2. Criticism: Assumes that person’s understanding or reasoning ability may be separated from other aspects of personality.
          2. Irresistible Impulse Approach: If commission was caused by an insane impulse which controlled person’s will. Combined with M’Naghten.
          3. Durham or Product Approach: Must simply show that crime was the product of a mental illness.
          4. Federal Test: Revision of M’Naghten
            1. As a result of severe mental disease or defect, unable to appreciate:
              1. The nature and quality of her conduct.
              2. The wrongfulness of her conduct.
        3. Model Penal Code §4.01
          1. Rule: As a result of mental disease or defect, lacked substantial capacity to
            1. Appreciate the “criminality” of her conduct.
            2. Conform her conduct to the requirements of the law.
          2. Differences:
            1. Essentially a revision of M’Naghten and Impulse tests
            2. Appreciate” instead of “know”
            3. Impulse” is not used. Instead, “lacks substantial capacity”

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