1.

Punishment & its Purposes

a. Moral theories
i. Utilitarianism
1. Does the good outweigh the bad
2. Does this reduce crime?
a. Rehabilitation
i. Originally about removing criminals from “evil
influences”
1. Now reintegration with society
a. Ex: rehab
ii. Now not used as much
1. Regan
2. Is this brainwashing?
3. Sentencing bias
a. Brock turner
b. Deterrence
i. Does Not work
1. Diminishing returns on punishment
2. Crimes of necessity
ii. Too focused on sending a message
1. What about the defendant
c. Incapacitation
i. Are they actually incapacitated
1. School for crime
2. Replacement effect
a. Market driven crimes only
i. drugs/prostitution
3. Prison violence
3. Critique
a. Can be against moral intuition
i. Minority report
b. Response
i. Erodes trust
ii. Retributivism
1. Inherent culpability of offender
a. Eye for eye
b. What about accidents/intent/free will
i. Alex Cabara
1. 18 y/o pedo also abused
b. Sentencing
i. Mandatory minimums
 1. Offense related
a. Drugs
b. Guns
2. Recidivism related
a. 3 strikes
i. 3 serious felonies = 25-life
ii. Sentencing guidelines
1. Judges decide sentences
a. Can use info not used in trial
i. Preponderance of evidence standard
2. Cruel and unusual punishment
a. Sentence has to be grossly disproportionate to the severity
of the crime to be cruel
b. If common in other jurisdictions then it's not unusual
3. Apprendi line
a. Any fact, other than a prior conviction, that increases the
maximum penalty for a crime must be submitted to a jury
and proven beyond a reasonable doubt by the prosecution.
i. Statutory maximum is the maximum sentence a
judge may impose based solely on the facts
reflected in the jury verdict or admitted by the
defendant
ii. Anything that raises the mandatory minimum also
needs to be treated as a criminal element
iii. Guideline system now advisory
4. Civil v criminal
a. You can be committed civilly to prevent you from
committing further crimes
2. Elements of the Offense
a. Actus reus “the bad act”
i. Voluntary act
1. Every criminal statute must specify a prohibited act
a. Except Possession
2. Any act that is the result of the conscious direction regardless of
consequence
a. Except: seizures, bullies toss you into a yard etc
i. Unless there was a voluntary act that put you in that
situation
1. Ex: epileptic driving the car
b. Sleepwalking depending on jurisdiction
ii. Possession
 1. Still an act even though its passive
2. Actual possession
a. Holding the item
3. Constructive possession
a. Sufficient power
i. Being in a hotel room with drugs is enough
b. Intent to control
i. Attempt to hide for friends counts
iii. Omission
1. Doing nothing is a criminal act sometimes
a. You have a duty to help another if
i. Status relationship with victim
1. Ex: Parent and child, Married couples,
Innkeepers and guests
ii. Contractual obligation
iii. Voluntary assumption of care
iv. You created the peril
v. Statute creates duty
iv. Causation
1. Factual cause
a. But for causation
i. Includes accelerating death
ii. Concurrent cause both are guilty
2. Proximate cause
a. Can't hold grandparents liable
b. Natural and continuous sequence
i. If intervening act
1. Independent acts are ok
a. Unless super foreseeable
2. Dependant acts are not unless very unusual
a. Grossly negligent medical care
b. Eggshell victim
c. Time
i. Most no limit
ii. 3 years and 1 day limit in
California
d. Grossly Negligent police conduct
b. Mens rea “the culpable mental state”
i. Model penal code
1. Intent terms highest to lowest
a. Purpose
 i. Viciousness
ii. Ex: a terrorist killing a senator
b. Knowledge
i. Callousness
ii. Ex: a terrorist taking down the senators plane and
all the other people inside the plane die
c. Recklessness
i. Aware of substantial unjustifiable risk
d. Negligence
i. Should be aware of substantial unjustifiable risk
2. Named degree acts as a floor
a. Ex: statute says recklessness so proving knowledge
satisfies
3. How to approach statutes
a. Ex statute: Arson in 1st degree- purposely set fire to the
property of another causing 5k damage
b. Identify criminal statute and break into elements
i. Ex: 1. Set fire (conduct) 2. Property of another
(circumstance) 3. Causing more than 5k damage
(result)
c. Assign the mens rea to each element
i. Traveling rule in model penal code
1. Apply mens rea to all elements
a. Ex: 1. Purposefully Set fire 2.
Purposefully Property of another 3.
Purposefully Causing more than 5k
damage
2. Travel forwards
a. purposely set fire to property of
another causing 5k damage vs set
fire to property of another with
purpose of causing 5k damage
3. Default rule
a. If you don't know what the mens rea
is default to recklessness
d. Determine if the defendant satisfies the mens rea for each
and every element
4. Strict liability offenses (see under common law)
a. Always assume recklessness
5. Defenses
a. Mistake
 i. Works for purpose or knowledge
b. Intoxication
i. Voluntary
1. When recklessness and you would have
been aware of risk when sober then
intoxication can’t be used
2. Can defeat knowledge or purpose
a. Need really high level of intoxication
i. Ex: falling down drunk
ii. Common law
1. Terms highest to lowest
a. Intent
i. Purpose or knowledge
ii. Specific
1. (Actus reus) + mens rea [further bad act]
a. Mens rea for (Actus reus)
i. Conduct elements - conscious
and aware
ii. Result/Circumstances -
intent/knowledge or purpose
2. Ex: larceny is (taking and carrying away the
property of another at night) + with the
intent [to keep permanently]
iii. General
1. just actus reus
a. Conduct elements - conscious and
aware
b. Result/Circumstances - honest and
reasonable belief
c. Ex: Assault is the non consensual
touching of another
b. Negligence
i. Gross deviation of care
c. Recklessness
i. Hella definitions so it will not be on the exam
2. Strict liability crimes/ public welfare crimes
a. Crimes without mens rea
i. Ex: distributing tainted drugs, stock manipulation,
pollution
b. When do you interpret as strict liability
i. Public welfare or not
 1. If not assume there is a mens rea
ii. Other Factors
1. Analogy to common law crimes
2. Type of harm
3. Penalties
4. Ease of prosecution
3. Defenses
a. Mistake
i. Can work for intent
b. Intoxication
i. Specific Intent
1. if it undermines the mens rea of specific
intent
ii. General Intent
1. NOT a defense
3. Substantive Crimes
a. Homicide
i. Common law
1. Murder
a. Murder 1
i. Intent to kill
1. Premeditation and deliberation
a. Reflected on decision and followed
through as opposed to impulse
killing
b. Time
c. Emotional state
2. Intoxication defense works
b. Murder 2
i. Need malice
1. Express
a. Intent
2. Implied
a. High possibility of death
b. Subjective awareness of risk
c. No socially redeeming value/base
antisocial motive
d. Examples
i. Unruly haste
ii. Timber car case
iii. Loose gun
 3. Intoxication defense works
ii. Reckless murder
1. Not only life endangering acts done with
subjective awareness of the risks involved
but also life endangering acts with
awareness that acts violate the law
2. Actus reus
a. Causing death
i. Omission liability-creating
the peril
3. Ex: pit bull cases
c. Felony murder
i. If a defendant commits or attempts to commit a
felony that causes the death of another person then
murder
1. Restrictions
a. Offense limits
i. Murder 1 always has
BARRK crimes (Burglary,
arson, robbery, rape, and
kidnapping)
ii. Murder 2 Inherently
dangerous felony in the
abstract
b. Duration limits
i. A felony begins when they
can be prosecuted for an
attempt and ends when you
reach a point of temporary
safety
c. Agency limit
i. The perpetrator or
accomplice must be the direct
cause of killing
ii. Ex: 1 perpetrator killed by
gas station attendant but can’t
get other perpetrator on
felony murder
d. Merger limit
i. Manslaughter cant merge into
felony murder
 2. Qualifications
a. Intent to cause grievous injury
counts as intent to kill
b. California
i. Provocative act doctrine
ii. When a perpetrator or
accomplice commits a
provocative act and in
reasonable response to that
act an innocent person kills a
3rd party, then murder 2
iii. Provocative act-Fraught with
grave and inherent danger to
human life
ii. Mens rea
1. Strict liability
iii. Accomplice liability
1. If you help someone commit a felony that
causes the death of another person then
murder also
a. Unless you don't know you are
helping commit a felony
2. California
a. Murder 1
i. Had intent to kill but didn’t
do it
ii. Was a major participant in
felony and had reckless
murder mens rea (an
abandoned and malignant
heart)
iii. Victim is a police officer
doing his duty
b. Murder 2
i. Inherently dangerous but not
assaultive in nature
2. Manslaughter
a. Involuntary
i. Criminal negligence
1. Should have known better
2. Gross deviation of reasonable care
 3. Ex: baby dying of infected tooth but would
have lived if taken to the doctor
b. Voluntary
i. Murder 2 with mitigating factors
1. Intent to kill
a. Heat of passion and
b. With reasonable provocation
ii. Reasonable provocation
1. Categories
a. Adultery
i. Spouse or lover
ii. Only in the act/line of sight
rule
iii. Some extend to having just
occured
iv. In bed together
b. Physical attack
i. Attempt to cause serious
injury
c. Mutual conduct
i. Battle/Brawl
ii. No premeditation
d. Violent or Sexual assault on a close
relative
2. Inadequate categories
a. Words alone
3. Reform (California)
a. No more categories
b. Jury question
iii. Intoxication defense works
ii. Model penal code
1. Murder
a. Purposely or knowingly
b. Recklessly under circumstances manifesting extreme
indifference to human life
i. Bold not defined (its for the jury)
ii. Read in if its a felony murder kind of situation
1. Defendant can rebut that argument
2. Manslaughter
a. Committed recklessly
i. You were aware of the risk
 b. Under influence of extreme mental or emotional
disturbance for which there is reasonable explanation or
excuse
i. Reasonable for who?
1. From the viewpoint of a person in the actors
situation under the circumstances as he
believes them to be
3. Negligent homicide
a. Criminal negligence resulting in death
4. Intoxication rules apply
iii. Death Penalty
1. 8th amendment actually has power here
a. Irrevocable
b. Still constitutional
i. Due process
c. Need context
2. Bright Line rules
a. Offense
i. You need a dead body
b. Mens rea
i. Was intent to kill
ii. Anything that would qualify for murder 2
c. Offender
i. Mental illness
1. Anyone legally insane is not guilty
2. If you become insane on death row then
can't kill them
a. Have to not understand what's going
on
ii. Mental handicap
1. Trend to be soft on this
2. Can't really be culpable
a. Ex: extremely low IQ
d. Method of execution
3. Jury discretion and bias
a. Guided discretion
i. Seperate death penalty hearing
1. Get mitigating evidence
a. Threshold
i. Need at least 1 aggravating
factor
 b. Balancing stage
i. Weigh aggravating and
mitigating factors
ii. Any relevant mitigating
factor can be brought in
b. Rape
i. Common law
1. Forcible rape (traditional rape definition)
a. Carnal knowledge of a woman forcibly and against her will
i. Carnal knowledge
1. Penetration of female sex organ by male sex
organ
ii. Force
1. Force and threats of physical harm
iii. Non-consent
1. Victims state of mind
b. Resistance requirement
i. Victim needs to physically resist to the utmost
1. Ex: brown v state
2. Need
a. Physical resistance
b. Resistance until “the end”
i. Except Reasonable belief
such resistance would lead to
serious injury or death
ii. Evidentiary requirement
1. Hale instruction “infamous”
a. Look at defendant’s testimony with
special care
2. Corroboration
a. Other witnesses
b. Physical evidence
3. Psychiatric testimony
4. Prompt complaint rule
a. If the complaint does not come fast
enough then jury can judge you
5. Sexually promiscuous complainant rule
a. Thots can't be raped i guess
c. Reasonable resistance test
i. Only need to resist when reasonable
ii. Factors
 1. Degree of physical force used by D
2. Physical size difference
3. Lack of escape/ability to flee
4. Threats (implicit, explicit)
d. California reform
i. Resistance is no longer a requirement
1. Not really a radical change
ii. Requirements
1. Non-consent
2. Force
3. Intercourse
e. Washington reform
i. Get rid of non-consent requirement
1. Assumed with force
ii. No more victims on trial
iii. Consent as defense
1. Defendant must prove victim consented to
rough sex
f. New Jersey reform
i. Elements
1. Sexual intercourse
2. Force
a. Can use non-consensual intercourse
as force
ii. Wouldn't that make every act of intercourse a
crime?
1. No
a. If you have freely given afrimative
permission then its not rape
i. Reasonable person looking at
the circumstances
ii. Maybe too vague and
uncertain
2. Mens rea
a. Majority and california
i. General intent
1. Honest and Reasonable belief defense
b. Minority rule
i. Strict liability
3. Special topics
a. Fraud
 i. Not usually rape because no physical force
ii. Unless pretending to be her husband
1. Does Not count for boyfriend (except CA)
b. Extortion
i. Economic/material force
1. Doesn't count
c. Non-consent
i. Consent impossible
1. Statutory rape
a. Defenses
i. Mistake of fact
ii. Depends on mens rea of age
element
2. Unconsciousness
a. Always rape
3. Mentally deficient
a. Always rape
4. Intoxicated
a. New laws change to rape
ii. Consent implied
1. Marital rape
a. Traditional rationale
i. Implied consent
ii. Consenting to marriage
iii. Marital privacy
iv. Promotes reconciliation
b. Reforms
i. California
ii. New york
iii. People v Liberta
iv. D tried to argue unequal
protection to strike down rape
as a crime
v. Got rid of marital rape
exception
d. Evidentiary reforms
i. Rape sheild laws
1. Evidence of victims sexual behavior
prohibited
a. Unless
 i. prove someone else is source
of semen
ii. Sexual history to prove
consent
iii. Could violate constitutional
rights
ii. Model Penal Code
1. Elements
a. Sexual intercourse
b. Force
c. [No non-consent requirement]
2. Gross sexual imposition: felony in 3rd degree
a. Expands definition of rape to include non-physical coercion
(any threat)
b. Mental disease/defect – D know V doesn’t know it’s a
violation
c. V thinks it’s her husband
3. Compared to Common Law:
a. Progressive:
i. No resistance or consent rules
ii. Broader definition – oral and anal; can’t rape
unconscious person
b. Not Progressive:
i. Gendered language
ii. Marital rape a lower offense than rape
iii. Evidence: allowed to use evidence of sexually
promiscuous victim
1. Jury instructions include regard victim’s
testimony with special care
4. Defenses
a. Constitutional status
i. Legislature can decide who has burden of proof and what it is
b. Self defense
i. Common law
1. Elements
a. Honestly and reasonably believe
i. If unreasonable no defense
1. CA imperfect self defense
a. Voluntary manslaughter
b. That deadly force
c. Is necessary to repel
d. The imminent use of deadly force by another
2. Retreat
 a. Stand your ground laws
i. Majority
ii. CA
b. Castle doctrine
i. Minority
3. Domestic violence
a. Battered woman syndrome
i. Learned helplessness
ii. PTSD
iii. Use to show self defense element of reasonableness
1. Needs to be accepted by scientific
community
a. Call expert testimony
2. Needs to be beyond the understanding of lay
people
iv. Not usually enough to get an acquittal
4. Exceptions
a. Delusions
i. Middle road
1. Can use some aspects of situation but try to
be objective
b. Aggressor exception
i. The deadly aggressor loses the right to self defense
1. If you renounce aggressive act you get self
defense again
ii. Raises the stakes
1. Ex: fred slaps barney - barney shoots at fred
and misses - fred shoots barney dead
2. Split jurisdictions
a. No crime or manslaughter
b. California
i. Can only use necessary force
ii. Model penal code
1. Subjective belief of defendant
2. Imperfect defense
a. Manslaughter
3. Required to retreat
a. Castle doctrine
b. Place of business
4. Aggressor exception
c. Necessity
 i. Honestly and reasonably believe that the conduct is necessary
ii. Undertaken to prevent a greater harm to persons or property
iii. Limits
1. Clean hands
2. No legislative predetermination
3. Homicide
iv. Special necessity situations
1. Lovercamp rules
a. that the prisoner was faced with a specific threat of death,
forcible sexual attack or substantial bodily injury in the
immediate future
b. there was no time for a complaint to the authorities or there
exists a history of futile complaints
c. there was no time or opportunity to resort to the courts
d. there was no evidence of force or violence used toward
prison personnel or other “innocent” persons in the escape
e. the prisoner immediately reported to the proper authorities
when he has attained a position of safety from the
immediate threat
2. Political necessity/civil disobedience
a. Need proof of danger that is immediate, serious and
reasonably certain to occur.
d. Mental illness
i. Challenge mens rea
1. Diminished capacity
a. Common law
i. Specific intent not general intent
b. MCP
i. Can always introduce that evidence
c. Rarely successful
2. Insanity defense
a. M’Naghten Test
i. Mental disease
ii. Didn't know the nature/quality of act OR
iii. Didn't know the act was wrong
iv. Critique
1. What about compusions
b. MCP
i. Mental disease or defect
ii. Can’t appreciate the criminality of conduct OR
iii. Can’t conform conduct to requirement of law
 c. Modern reform
i. Mental disease or defect
ii. Unable to appreciate the nature or wrongfulness of
act
e. Mistake of law exceptions
i. Reliance on official statements
1. Requirements
a. Must be an official statement of law
b. Must come from person or entity responsible for
interpretation administration or enforcement
c. Must sincerely and reasonably rely on the official statement
ii. Mistake of non-governing law
1. Ex: definition of counterfeit or felon
2. Attempt to negate mens rea in specific intent crimes
3. Nothing for general intent crimes
iii. Cheek exception
1. Cheek case
a. Libertarian wackjob stops paying taxes
2. Unreasonable but sincere belief that the law does not apply
a. When
i. Federal statute
ii. Involving complex regulatory initiatives
iii. Contains mens rea of willfulness
iv. MCP
1. Ignorance of the law is no excuse
5. Inchoate Crimes
a. Attempt liability
i. Common law
1. Specific intent
a. Mens rea is bumped up to intent
i. Even for non result oriented crimes
2. There is no transferred intent for attempt liability
a. However a D with generalized knowledge that otherss will
die in the process can be convicted of attempted murder \
b. Actus reus
i. Lots of tests
1. Use Californias
a. Act confirms criminal intent
b. Immediate step to execute design
ii. Abandonment
1. Changing your mind doesn't save you
 iii. Impossible attempts
1. Legal impossibility
a. defense
2. Factual impossibility
a. No defense
3. No one can tell the difference
a. California abolished it
ii. MCP
1. Attempts
a. Completed
i. Took all steps but outside source made them fail
b. Incomplete
i. Substantial step towards completion
c. Abandonment
i. Complete and voluntary renunciation
d. Impossible attempts
b. Solicitation
i. Common law
1. Encouraging inviting commanding requesting another to commit a
crime
2. Specific intent
3. Limits
a. Typically felonies
b. D cant be perpetrator
c. Limited punishments
i. Misdemeanor
ii. MCP
1. Encouraging inviting commanding requesting another to commit a
crime
2. Purpose
3. Limits
a. Not limited to felony
b. D can be perpetrator
c. Punish solicitation same as underlying crime
iii. Like offer in contracts
1. If completed then merge with actual crime
2. If offeree accepts then conspiracy
c. Accomplice liability
i. Complicity
1. Defendant must assist the perpetrator
a. How much counts
 i. But for cause of crime? No
ii. What counts?
1. Physical assistance
2. Emotional assistance
2. Intent to assist
3. Share mens rea for underlying statute
a. Result-same
b. Conduct-purpose
c. Circumstance- knowledge
4. Common law
a. Natural and probable consequences doctrine
i. Accomplice will be liable for any other criminal
acts by the perpetrator that were reasonably
foreseeable
ii. People v luparello
1. Accomlice -> assault -(civ neg)-> murder 1
b. Defense
i. Abandonment
1. Withdrawal and legit effort to neutralize
5. MCP
a. Actus
i. Assist perp
b. Mens
i. Intent to assist
ii. Share mens rea for underlying statute
c. No N and PC
d. Abandonment defense works
d. Conspiracy
i. Elements
1. An agreement between at least 2 people
a. Doesn’t have to be explicit, can be a nodding Can
represent an implicit agreement
2. Purpose to enter into that agreement
3. An overt act in furtherance of the agreement
a. required in a majority of American jurisdictions
4. Purpose to promote the unlawful act that is the object of the
conspiracy
a. Doesn’t have to be a criminal act (historical)
5. Knowledge that the unlawful act is indeed unlawful
a. required in a minority of American jurisdictions
b. corrupt motive
c. Need mental element that know it is unlawful
ii. Pinkerton Doctrine
1. Holds a conspirator liable not only for the crime of conspiracy, but
also for any foreseeable crimes committed by his co-conspirators
in furtherance of the conspiracy even if involvement in those
crimes was insufficient to convict the conspirator as an accomplice
a. The larger conspiracy, the greater the liability