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Course: Criminal Law Fall 2004
School: University of Detroit
Year: 2004
Professor: Keenan
Course Outline provided by



I. Introduction and the purposes of punishment 2

A. Regina v. Dudley and Stevens (Queen’s Bench 1884, P135) 2

II. General Common Law Requirements 3

C. Causation 7

1) Reasons for Causation requirements- Two people A and B each shoot at victims X and Y; as soon as A shoots X, overcome w/ remorse and tries to save him, but X dies anyway; B shoots Y and is happy about it, but Y somehow lives; A convicted of capital murder and executed; B is not; What explains difference? 7

2) Three categories of causation problems that often arise: 8

III. Homicide 9

B. Intended Killings 11

1) First degree 11

2) Mitigation and Manslaughter 11

C. Unintended Killings 13

1) Risk creation = Murder 13

2) Risk creation = Manslaughter 13

a. CL: Commonwealth v. Welansky (Massachusetts, 1944, r425) 13

b. MPC – manslaughter and negligent homicide 14

i. Manslaughter- Recklessness is standard for equivalent of involuntary manslaughter. Recklessness under MPC requires not only substantial risk but also conscious awareness of risk while common law requires only the substantial risk without awareness. MPC trying to serve theory of retribution—punish person who is aware of risk. Can also better deter people who are aware of risk as opposed to people who are unaware 14

c. Tort Negligence: State v. Williams (Washington, 1972, r431) 14

D. Felony Murder- originated w/ English system where all felonies were capital offenses; homicide now only capital offense, but FM rule remains; trend has been to limit rule, not eliminate it; problem is that liability not linked to culpability 14

IV. Rape 17

A. History 17

B. Issues 17

C. Traditional common law definition: rape= sex + force (or threat of force) + non-consent. 17

D. Modern Case Law 17

V. Justification and excuses 20

A. Self-Defense 20

B. Necessity and Duress 23

C. Insanity: An Excuse- 26

VI. Expanding Liability 28

A. Attempt- Of 3 key doctrines of crim law, something is missingà (1) causation; no harm caused and (2) actus reus in some cases 28

B. Complicity 30

C. Conspiracy- Crime of agreement to do another crime; 33

VII. Sentencing 37

A. Types of sentencing regimes: 37

B. Purposes of Punishment: US v. Bergman (SDNY, 1976, r140) 37

C. 8th Amendment: Harmelin v. Michigan (US SC 1991, r283) 37

VIII. Constitutional Constraints of Def of Crimes 38

A. Ban on Status Crimes 38

B. Requirement of a Clear Statement 38

I. Self-Incrimination 39

A. Interrogations 39

B. Future of Miranda 41

II. Search and Seizure 42

A. The Scope of 4th Amendment Protection 42

2) What is a Seizure? 44

B. The Exclusionary Rule 45

C. Exceptions to the Exclusionary Rule 46

D. Probable Cause and Warrant Requirements 51

E. Exceptions to the Probable Cause and Warrant Requirements 52


I. Introduction and the purposes of punishment

    1. Regina v. Dudley and Stevens (Queen’s Bench 1884, P135)

  1. Facts: Four men trapped on boat at sea w/ little food. Captain Dudley and his first mate Stevens decided to kill Parker the cabin boy and eat him to save the rest of them. Brooks did not assent. Dudley and Stevens charged w/ murder, but sentences to death are commuted to 6 mos.

  2. Can see major issues of criminal law in this caseà mens rea, actus reus, causation (would boat maker be negligent), parties (accomplice and conspiratorial liability), grading of offenses, category of offenses, sentencing, systemic issues and policy issues

B. Purposes of punishment:

1) Deterrence- general or specific; from Bentham’s theory of utilitarianism- humans driven by seeking pleasure and avoiding pain; also to channel human desire for revenge and prevent vigilante activity

    1. Need equation where T<P*C (T=pleasure from crime; P=pain; C=chance of being caught); principle of parsimonyà too much punishment is wasteful

    2. Problem: diff levels of pleasure, hard to determine optimal lvl of sanctioning (social calculus different), assumes rational actor (most debated); some studies show raising C more effective; less linear response to increase sentence; punish as means to end, can be unfair if law enforcement bad; might rationalize prosecuting innocent person for deterrence, as long as govt not caught

2) Incapacitation- Usually incarceration; Forward looking; raises issue if punishing for future crimes

3) Retribution- punishment is end itself; meant to carry blame and stigma, community condemnation; do not punish if not wrong or no choice was made

a. traced to Immanuel Kantà fact people deserve punishment not only good reason to punish but creates duty for society to punish; not utilitarian at all; ex. of society about to disband, still have obligation to execute last murderer before disband

b. Problems: (1) critique of agency or freedom; assume people choose and all equally free in society; left wing critique; bad b/c poor, not poor b/c bad; but hard to find proper upper limit of this critique (society must be equal before criminal justice system, can be applied fully equally) (2) costs of punishing all crimes too high for society (3) provides no yardstick as deterrence does; says nothing of proper severity of punishment; will society tolerate what severe offenders deserve?

4) Consequentialist Retribution or Revenge

  1. Rehabilitation- minimum ideal says fix problem that led to crime and make person safe “for us”; also rehabilitation “for them” to help offender flourish

    1. Problem: high cost and often does not work; creates incentive to commit crime; resources better used on good citizens

  2. Reparation- thru jail, death or monetary payments

  3. Social Cohesion

  4. Expressivism/ Moral Education- punishment express society’s norms and educate society; assumes people obey law b/c believe legitimate and want to follow it

    1. Problem: law not objective and expresses itself differently toward diff communities

II. General Common Law Requirements

A. Actus Reus- act requirement shows our philosophical commitment to autonomy, free speech, and liberty preservation; limits state interference; also shows solid proof of intent and actual harm; targets use of resources; very few crimes that involve only thoughts

**Note that both retributivism and deterrence are thwarted, if the actor did not have free choice.

  1. Voluntary acts

    1. Martin v. State (Alabama 1944, P 173)

      1. Facts- Δ Martin is appealing conviction of drunken behavior in public space b/c his presence on the public highway was not voluntary. He alleges that the police officers brought him out to the highway from his home. Cts says “Appears” in lawà voluntary act requirement.

      2. Rule- Each element of the act must be voluntary. Best for deterrence

      3. Converse rule- If the last act is voluntary, the crime is considered voluntary. (would convict Martin b/c chose to manifest drunkenness)

    2. People v. Decina (New York, 1956, P 156)

      1. Facts- Man who knew he had epilepsy drove and had seizure, killing people on sidewalk; ct convicted; they shift the timeframe, saying that he knew of the risk when he decided to drive—that act was voluntary.

      2. Rule- If there is a voluntary axn that makes involuntary axn foreseeable, then satisfies preference for voluntary action and criminal liability lies. (Very similar to MPC).

    3. MPC- §2.01(1) (r1041)

      1. Rule- If one act is voluntary then voluntary act requirement satisfied. Best for expressivism. Most narrow ruleà A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.

    4. Proximate cause thy- put forward by Michael Moore; must ask about causal connection b/t first and last act

    5. Voluntary act requirement and thy of punishment

  2. Involuntary Acts

    1. People v. Newton (CA, 1970, r175)

      1. Facts- Δ in altercation w/ police. Δ shot in abdomen and claims he lost consciousness before killed police officer. Ct finds that unconsciousness under CA penal code is complete defense. **Note: doesn’t claim accident b/c felony murder rule.

      2. Rule- Where not self-induced, unconsciousness is complete defense to homicide.

    2. MPC §2.01(2) (P1041) defines acts that it considers involuntary (again, largely drawn from common law)

      1. Includes: (1) reflex or convulsion, (2) bodily movement during unconsciousness or sleep, (3) conduct during hypnosis (or resulting from a hypnotic session), and (4) (catch-all) a bodily movement that otherwise is not a product of the effort or determination of the actor (can argue mental defect puts act into this category; also irresponsible actor)

      2. Only punish voluntary acts b/c: (1) we feel safer punishing only people who choose; (2) punishing choice respects people’s ability to choose.

  3. Omissions – punished same as act

    1. Good Samaritan: Pope v. State (Maryland, 1979, P183)

      1. Facts- Woman took in mother and small boy, then watched as mother beat infant to death. Ct found no duty to care for child. b/c the mother was always present. Acts of care, i.e. taking in mother and child cannot subject Good Samaritan to prosecution. Cannot punish for failure to fulfill moral obligation.

      2. Rule- Must have legal duty to act.

    2. Legal Duty Req’t: Jones v U.S. (District of Columbia, 1962, P190)

      1. Facts- Jones’s involuntary manslaughter conviction for failure to provide for infant set aside b/c should have given instruction on legal duty. Child was living in his home. Conflict over whether paid or mother Shirley also there full time.

      2. Rule- Must have legal duty to act. Sources—

        1. Legislative (primary source): from criminal statutes (tax evasion) or civil legislation (civil law that says have duty to report accident you are in; not criminal; but creates duty that transforms innocent omission into criminal liability)

        2. Contract- individually made law; necessity of fulfilling enforceable contract is legal duty

        3. Status relationship- either applied by law or assumed; ex) duties in marriage, teacher/ student, innkeeper/ guest, master/ apprentice

        4. Voluntary assumption of care- secludes that helpless person from other people (courts not consistent if seclusion necessary element)

        5. Creation of Peril

    3. MPC §2.01(3) Liability for commission of offense may not be based on omission unless: (a) statute defines omission as sufficient OR (b) duty to perform omitted act is imposed by law.


** All from civil lawà

Pros of system: Gives place to look for answer

Cons of system: civil law creates duty for other reasons (spreading costs, etc); not purposes of criminal law; civil law also lacks moralistic cast that criminal law has; civil law sometimes goes beyond moral intuitions (tort), sometimes falls short


    1. Beardsley v. People (Michigan 1907, P194)

      1. Facts- man had his lover at his home and provided her with alcohol when she attempted suicide. He hid her in the basement rather than attempting to get any aid.

      2. Rule- Ct says no duty b/c morally repugnant to think married man has duty to lover.

    2. People v. Olivier (California, 1989, P195)

      1. Facts- A woman invited a man home from the bar and provided him with a spoon for heroin at his request. He then passed out and she left him to go to the bar. When her daughter called, she instructed her to pull the body outside, and did not seek him.

      2. Rule- The court found that there was a duty, because she took him from a public place, where others might have aided him; see voluntary assumption of care

    3. Regina v. Stone and Dobinson (Queen’s Bench, 1977, r194)

      1. Facts- Δs are the decedent’s brother and his live-in housekeeper/ mistress. The decedent came to live with them, and paid a small amount of rent before dying of anorexia after not receiving proper nursing care. The defendants washed her, and tried to find her doctor, but failed in these attempts.

      2. Rule- (Law had not recognized status relationship between siblings. ) Court found ∆s had duty—voluntary assumption of care since ∆s took deceased into their home.

    4. Jones v. State (Indiana 1942, P196)

      1. Facts- Δ raped 12 yr old girl. Then let her drown after she fell into river b/c distraught. Ct held he had legal duty b/c caused peril.

      2. Rule- Creation of peril- quasi-tort liability (also from common law) also creates legal duty

B. Mens ReaEvil mind; general (moral culpability) vs. specific (element of crime)

  1. Regina v. Cunningham (Queen’s Bench, 1957, r204)

    1. Facts-∆ charged with larceny and offenses against Person act for stealing gas meter. Gas started flowing out of the meter. ∆ leaves. Victim becomes partially asphyxiated. Statute requires Δ act maliciously. Ct sets aside b/c wrong instruction to jury.

    2. Rule- For an act to be malicious the Δ must have purpose or foresee the consequence of his actions, not simply “wickedly” commit the act.

    3. CL often describes

  2. MPC § 2.02 (PP1041&208) gives us four categories;

    1. Purpose- This requires a conscious objective.à “I want to hurt Mrs. Wade by administering poison”

    2. Knowledge- does not require an objective, but instead requires the defendant be practically certain the bad consequence will transpire from her actions.à “If I rip the gas meter off the wall for the money, it is practically certain I will administer poison to her.” (> 90%) (also terrorist and air force one; know will kill other, not purpose, but blow it up anyway)

    3. Recklessness- grossly deviate from standard of care reasonable person would do (> than torts standard); risk must be unjustifiable and substantial (< than practically certain); must have knowledge of risk. You could call this “conscious risk creation.” à - “I know there is a chance that this will poison Mrs. Wade”

    4. Negligence- The defendant is not aware of the substantial and unjustified risk, but should be. It is also a gross deviation from the standard of care that a person would normally exercise; **Common law and MPC differ on diff. b/t reckless and negligent; in common law, negligence often involves lower degree of risk; in MPC, only difference is in awareness

  3. Regina v. Faulkner (1877, p 206)

    1. Facts- Faulkner Δ was sailor on ship; while trying to steal a bottle of rum, he set fire, destroyed the ship with fire and injured himself. Δ convicted under the Malicious Damage Act. The judge had instructed the jury that did not have to find that he intended to burn the ship. He aid if found tried to steal rum and ship burned as stated, then guilty.

    2. Rule- Reversed b/c to find malice court held that intention or least recklessness has to be established.

  4. Santillanes v. New Mexico (New Mexico, 1993, 211)

    1. Facts- Δ was involved in altercation w/ 7 yr old nephew and cut his neck. Convicted of child abuse for “negligently causing child” to be placed in situation that may endanger child. Trial court judge refused to instruct of definition of negligence like that in Model Penal Code, but instead said negligence one “A reasonably prudent person [. . .] would not do”

    2. Rule- Adopts MPC standard of criminal negligence; diff from CL civil negligence.

  5. Strict Liability in CL crimes and US v. Morissette (Supreme Court 1952, r237)

    1. Facts- Morissette snuck on to Air Force base and took bomb casings he claims he thought were abandoned. He then flattened them and sold them for profit. He was convicted of “knowingly converting” govt property. Δ claimed honestly thought abandoned and appealed on grounds that trial judge erroneously instructed jury that no intent necessary.

    2. Rule- Reversed. Exceptions to mens rea as element of crime should not be extended to common law crimes such as larceny; Justice Jackson: mens rea not connected to revenge and retaliation but to deterrence and reconciliation (not always true)

  6. Strict Liability in Public Welfare Offenses and US v. Balint (Supreme Court 1922, r236)

    1. Facts- Δ was convicted under Narcotic Act of 1914 for selling derivatives opium or coca leaves. Δ appealed on grounds that indictment did not charge that they knew they were selling prohibited narcotics.

    2. Rule- Ct allows conviction to stand b/c certain statutes have public policy as purpose and require seller of drugs to ascertain quality of what he is selling. Likely considering difficulty in proving knowledge.

  7. Strict Liability in Public Welfare Offenses and US v. Dotterweich (Supreme Court, 1943, r236)

    1. Facts-Δ was president and general mngr of pharmaceuticals co, which distributed drugs manufactured by other cos. Twice manufacturer’s and therefore, co’s labels were incorrect and so co. and Dotterweich charged w/ distributing misbranded products. Co. acquitted. Dotterweich convicted and sentenced to fine and 60 days probation.

    2. Rule- Congress meant to impose burden on those w/ at least some opportunity of informing selves as to illicit commerce that may harm public, rather than put burden on completely on totally helpless public

    3. Consequences are small and crimes are not infamous; often regulatory offenses; MPC codifies as “offense” separate from “crime” punishable only fine;

  8. Staples v. US : Strict Liability in Public Welfare Offenses

    1. Facts- Δ punished under law where possession of unregistered firearm punishable by up to 10 yrs. in prison; “it shall be unlawful to possess….”; firearm defined as “fully automatic weapon”; no mens rea in statute; Δ had filed away bar on rifle to make it fully automatic; claims thought only semi-automatic sawed off shotgun; knew he possessed gun but didn’t know nature of thing; fact: 50% of homes in US have lawfully registered handguns in them; seems to pub welfare but punishment is high

    2. Rule- legislation meant to regulate circulation of firearms, therefore public welfare offense, strict liability and no mens rea needed; but then cites tradition of owning handgun in US; different from hand grenades; wouldn’t alert a person to regulation and doesn’t think was legislative intent; also says 10 yrs. too long to dispense w/ mens rea; felonies are not public welfare offenses, therefore must prove mens rea

C. Causation

  1. Reasons for Causation requirements- Two people A and B each shoot at victims X and Y; as soon as A shoots X, overcome w/ remorse and tries to save him, but X dies anyway; B shoots Y and is happy about it, but Y somehow lives; A convicted of capital murder and executed; B is not; What explains difference?

    1. Revenge- Society’s desire for vengeance, esp in death cases, will be greater.

    2. Retributivism- One of retributivist (non-Kantian) purposes of punishment is to channel society’s natural desire for revenge.

    3. Can argue no deterrent or rehabilitative purpose for Δ; maybe deterrence for revenge among victim’s family;

    4. Reparation- kind of reparation for victim or victim’s family; should this be left to tort?

  2. Three categories of causation problems that often arise:

    1. Exceptional victim- unusually susceptible; “egg-shell” skull problem; ex) punch someone w/ hemophilia; Common law says take victim as you find him. MPC asks if consciously aware of risk (recklessness) or should have known but didn’t (negligence).

    2. Unintended results- intend harm to victim, but extent or way of harm different; ex) hit different victim, or shoot at victim and miss but victim has heart attack and dies; Common law says take victim as you find him. MPC asks actual injury represents same kind of injury or harm as probable result or as that designed or contemplated in MPC §2.03 (r1041)

    3. Intervening acts and events- (1) natural event, like lightening or (2) third party event; set house on fire and victims run outside and struck by lightening; shoot someone and dies at hospital b/c of malpractice (3) victim causes own death, i.e. refuses care, etc; Common law asks whether new and intervening cause or whether natural and probable consequence of ∆’s action. MPC asks about remoteness of harm, forseeability by ∆.

  3. Stephenson v. State and CL causation

    1. Facts- Δ Stephenson assaulted and tried to rape decedent Madge on a train. They then struck, bit and beat her. They forced her off the train in Hammond where they checked into a hotel room. Madge, struck with shame, asked for permission and money to go out to buy a hat. The chauffeur accompanied her to buy a hat and to the drug store where she bought some mercury tablets. Upon returning to her hotel room, she took the poison. Δ had her drink a bottle of milk, and suggested she go to a hospital, but she refused. Δ then drove her home. Her parents called a doctor. But as a result of her wounds, the poison, and her refusal to eat, she died 10 days later. Δ was charged with murder.


    1. Rule- Upheld murder convicted b/c rendered Δ an “irresponsible actor” (emotional disturbance, shame of rape, fear, necessity b/c no hope of escape) and b/c “natural and probable consequence” of his actions (related to foreseeability in Decina; but does it make sense that less responsibleà less foreseeable?; could have used omissions doctrine (sequestered, didn’t go to hospital); two reasons for conviction independently sufficient

    2. Ct says like Valade (girl jumped from window of hotel to escape attacker), not like Preslar (where women slept outside after beaten by husband w/o “necessity”)

  1. US v. Hamilton (Supplement 1)

    1. Facts- Δ in a fight on the street w/ John Slye. In course of fight, Slye was knocked to ground and Δ kicked Slye several times w/ boots in face. Slye was brought to hospital and arms were restrained, but restraints later removed. In course on night, Slye convulsed and pulled tubes out. Coroner found cause of death was wounds caused by Δ. Δ argues that not simply failure to seek treatment but positive act of Slye caused death.

    2. Rule- if you cause harm that starts chain of causation (causi causati) and can make links then first actor is responsible; limited by “year and a day” later then cause; used as cutoff before medical advancements

    3. Shows menu of standards CL judge can use; choose on own discretion if not in statute

  2. MPC on Causation §2.03 (Pp1042-3)- Rare b/c staircases by mens rea

    1. (1) Conduct must be antecedent of result—“but for” is necessary but not independently sufficient condition; AND

    2. (2) When purposes or knowledge an element of offense, element not est if actual result not w/in purpose or contemplation of actor unless:

      1. differs only in target person or property or designed harm is more serious than actual harm (transferred intent) OR

      2. actual result involves same kind of injury or harm as designed or contemplated and not too remote or accidental to have just bearing on liability

    3. (3) Same substandard as above for reckless (transferred mens rea + actual result w/in risk of which consciously aware) or negligence (transferred mens rea + actual result one of which should have been aware, i.e. equal to or less severe than probable harm)

    4. (4) When causing result is material element of crime for which law imposes strict liability, element not est unless actual result is probable consequence of actor’s conduct.

III. Homicide

  • Problem of grading-

    • Pre-MPC NY law- one extreme that tried to interdependently define every type of murder

    • Sweden-does not define murder except as taking of life of another; also causing a death in different offense; no attempt to say what states of mind or action; just leaves up to finders of fact; allows individualization of cases, but can lead to inconsistency

    • US CL and MPC- middle ground; grades into large categories and leaves a lot of discretion at sentencing

  • Homicide in general:

    • MPC- MPC does not have degrees of murder; has whole list of mitigating and aggravating circumstances; shifts from intentionality to factors; completely ignored until 1972 when Supreme Court struck down death penalty b/c no guidance as to how to consider death penalty; dissenting opinion advised to redraft statutes; 35 states adopted MPC formulation; ** now most states have CL degrees w/ overlay of MPC

    • CL- Murder- worst kind of killing; at common law, had only one penalty- death; whole project to differentiate was driven by death penalty


    • Chart CL vs. MPC


Common Law
Model Penal Code §210.3 (P1076)
(1) Murder needs “malice aforethought” or “malice prepense”
•Malice aforethought is a technical term of art standing in or certain mental states:
--intent to kill
--intent to cause GBH; like MPC recklessness
--“reckless indifference” to value of human life; If knows act are likely to cause death or GBH, even if have no intent to either kill or cause GBH; take such an enormous risk that have “depraved heart” or “malignant heart”; don’t care enough about welfare of others; assumed to intend the natural and probable consequences of axns
--“felony murder”; intent to commit another felony
--killing of police officer while resisting arrest; now generally folded into felony murder
(1) Murder must be either: (1) purposeful; (2) knowing; (3) recklessness + w/ extreme indifference to value of human life; (4) if falls into list of felonies, there is a presumption of extreme indifference, but it is rebuttable w/ burden shifted to Δ.
§210.1 P 1076
(2) Manslaughter
Voluntary manslaughter is a killing that would be murder but lacks malice aforethought because done in heat of passion with adequate provocation, i.e. mitigating factors; no cooling off; can’t be verbal; must be by victim
Involuntary manslaughter is death that is result of reckless or gross negligence
(2) Only one grade of manslaughter. Reasonable extreme emotional distress OR reckless (conscious running of substantial risk of death; gross deviation from standard of care); determine reasonableness of EED based on person in Δ’s situation under circumstances as he believes them to be
§210.3 (P1077)
(3) Negligent homicide only requires ordinary civil negligence
(3) Negligent homicide requires MPC negligence (reasonable person would have known risk was substantial and unjustifiable)
§210.4 P 1077
(4) Misdemeanor manslaughter analogous to felony murder
(4) MPC does not adopt misdemeanor manslaughter


    1. Intended Killings

    1. First degree

a. PA Statute- PA first to develop idea of 1st degree murder; CL defines specific kind of murder eligible for death penalty; P 393

      • First degree- intentional killing; killing by means of poison, lying in wait, or any other willful, deliberate and premeditated killing; Treat this as “purposeful +”; highest mental culpability; above purposeful on MPC scale

      • Second degree- felony murder

      • Third degree- all other murders; (super reckless; depraved heart; intent to commit GBH; knowing w/o intent)

    • Commonwealth v. Carroll (Pennsylvania, 1963, P396)

      1. Facts- Δ convicted of 1st degree murder for shooting wife, while she was lying in bed, after long night of arguing and troubled marriage. Appeals on grounds that too short a time to form intent.

      2. Rule- Court says that shooting twice at point blank falls under “intent to kill;” all you need for deliberation and premeditation is formation of intent to kill; no time too short

    • How do you prove intent under PA formulation?

      1. Statements of intent

      2. Juries can infer from circumstances


      1. State v. Guthrie (West Virginia, 1995, P 400)

        1. Facts- Δ (mentally unstable) was being teased at restaurant by co-worker; suddenly pulls out knife and stabs him.

        2. Rule- Must be evidence Δ considered and weighed decision to kill before can fulfill premeditation and deliberation requirements of first-degree murder; must be some time lapse; same ruling in CA

        3. Have to prove pre-thought out murder; more in line w/ textual meaning

      2. Reasons for staircasing-

        1. Deterrence- Those who think it over more susceptible to deterrence.

        2. Law and Economics- Those who plan less likely to be caught, so should make penalty higher.

      3. Mitigation and Manslaughter

            1. Category originally created to get people out of death penalty whose crimes weren’t as bad

            2. Voluntary manslaughter- mens rea same as murder but some mitigating circumstance; under retributive thy, less choice and so punish less

            3. Cassassa v. People (New York, 1980, P 415) and MPC formulation

              1. Facts- Victim ended a brief relationship with Δ, and soon after he began stalking her. One night he came to her apartment to try to rekindle things or kill her. She declined to restart their relationship and he stabbed and then drowned her. He claims that he acted under EED, which was reasonable in his situation of mental disturbance.

        1. Rule- Appeals Court says two standards must be met for EED: Subjective question- was he disturbed?; Objective- would reasonable person have been disturbed? Trial ct w/in rights to find EED, but too particular to him to be reasonable

        2. MPC §210.3 P 1077 says, must be

          1. EED for which there is reasonable excuse

          2. for actor in his situation under the circumstances as he believes them to be; word “situation” purposely ambiguousà not ideologies but maybe handicaps and circumstances; real question is if can arouse sympathy; allows time to simmer that CL does not

      4. D.P.P. v. Camplin (England, 1978, r421) and CL formulation

        1. Facts- A boy was sodomized and mocked by the deceased. He responded by killing his attacker with a frying pan.

        2. Rule- (1) must consider reasonable child, b/c children more impulsive (2) usually taunts targeted at specific culture or group, so if part of that group, more provocation; ** Ct later changes to “sufficiently excusable”à like MPC leaves reasonableness to jury

        3. CL requirements:

          1. cannot just be words,

          2. must be by victim (though mitigation can work in transferred intent).

          3. Must be in “hot blood”; “sudden and intense passion” and

          4. “serious provocation”; most judges take “reasonable person” idea from perspective of Δ; but serious provocation judgment is objective

        4. Bedder – man kills prostitute who makes fun of his impotence; ct uses totally objective standard and says will not consider reasonable impotent man, only reasonable man



    Common Law
    Model Penal Code
    1. Victim does the provoking. Disturbance or event caused by person killed
    2. More specific—looks at adequacy of provocation (list of specific paradigmatic examples)
    3. Words usually not be enough
    4. Heat of passion means immediate response (no cooling off period)
    1. Don’t have to kill the person who created the emotional disturbance.
    2. Not look at adequacy—just whether a reasonable excuse for emotional state.
    3. Words may be enough
    4. Long term emotional disturbances and simmering allowed (immediate action not necessary)


      1. Unintended Killings

    Involuntary manslaughter- lower mens rea requirement; but problem is some risk creation is murder, some manslaughter, some negligent homicide and some carries only tort liability

    1. Risk creation = Murder

      1. Commonwealth v. Malone (Pennsylvania 1946, r439)

        1. Facts- Δ charged w/ 2nd degree murder in PA for killing Long while playing Russian Roulette; shot gun three times; thought only one bullet

        2. Rule- Judge says does not matter what the chance was b/c acted w/ “depravity,” “hardness of heart,” wickedness, and malice; “wanton and reckless” disregard for friend’s life à recklessness + and stand-in for intent.

      2. United States v. Fleming (District of Columbia, 1984, r443)

        1. Facts- Δ driving very drunk on wrong side of highway at very high speeds and swerving. Hits car and kills woman. Charged with second-degree murder. Had CL PA murder def.

        2. Rule- Proof of malice does not require malice toward victim or intent to kill. Malice is “reckless and wanton and a gross deviation from reasonable standard of care…” to such a high degree that jury is warranted to find Δ was aware of serious risk of death or bodily harm.

    2. Risk creation = Manslaughter

      1. CL: Commonwealth v. Welansky (Massachusetts, 1944, r425)

        1. Facts- Δ owner of bar; on full night while Δ in hospital, decorations caught on fire and many killed b/c poor signs and locked doors. Δ charged w/ invol manslaughter.

        2. Mens rea for involuntary manslaughter in MA (CL-> statute) is “wanton or reckless”; act or omission must have probable, substantial consequence; only defense at CL is that risk not great enough

        3. At CL only difference b/t recklessness and negligence is degree of risk; MPC considers awareness as well

        4. Rule- Wanton or reckless behavior does not need to be affirmative action, in premises liability cases can be failure to live up to duty of care. Says must be “wanton and reckless,” only action must be willful not result. Must be high degree of likelihood that substantial harm results.

      2. MPC – manslaughter and negligent homicide

        1. Manslaughter- Recklessness is standard for equivalent of involuntary manslaughter. Recklessness under MPC requires not only substantial risk but also conscious awareness of risk while common law requires only the substantial risk without awareness. MPC trying to serve theory of retribution—punish person who is aware of risk. Can also better deter people who are aware of risk as opposed to people who are unaware

    ii. negligent homicide- MPC negligence (reasonable person would have known risk was substantial and unjustifiable) §210.4 P 1077

      1. Tort Negligence: State v. Williams (Washington, 1972, r431)

        1. Facts- Uneducated, poor N.Am. parents did not bring child w/ toothache to hospital, even though knew sick. Child dies of gangrene and Δ convicted of involuntary manslaughter. In WA mens rea required for manslaughter is ordinarily negligent that departs from ordinary standards of care, i.e. tort negligence

        2. Rule- Meets negligent mens rea b/c reasonable person would have brought kid to doctor, even if reasonable person would not have thought the kid would die; sufficient under WA statute

      2. Debate over tort negligence as standard- Why WA dumped statute?

        1. Subjective vs. Objective

          1. Objective- what a reasonable person would do? Hold everyone to same standard and punish those who don’t reach standard even if had no chance of making it

          2. Subjective- Consider Δs situation; bring liability in line w/ culpability; some who could meet standard will slip thru by claiming they could not

        2. CL Negligent homicide- Every state has gap b/t mens rea that suffices for lowest form of murder and unreasonable killing that is not culpable (since WA removed tort negligence standard)

          1. merely negligent behavior people would not realize they were taking deadly action and so would not deter, e.g. reasonable people don’t throw cigarette butts into forest, but not many such acts kill people

          2. Argument against is that everyone is negligent sometimes and would be too common; would lose moral opprobrium attached to criminal punishment

      3. Felony Murder- originated w/ English system where all felonies were capital offenses; homicide now only capital offense, but FM rule remains; trend has been to limit rule, not eliminate it; problem is that liability not linked to culpability

    1. People v. Stamp and Unlimited FM Rule

      1. Facts- Δ Stamp held up the business of Carl Honeymoon and forced him to lie on ground at gunpoint. After Δ fled, Honeymoon died of a heart attack. Doctors said he was not in good health and had heart condition and the fright of the robbery was a shock to his system. Δ was charged with first-degree murder.

      2. Rule- Must only prove causation, not foreseeability, to convict of 1st degree murder.

    2. Purposes of Modern FM Rule

      1. Retributivism- strict liability inconsistent w/ this purpose; b/c no choice made to kill anyone

      2. Deterrence- 3 possible ways

        1. deter from committing underlying felony (Why not raise penalty on felony?-> certainty of imposition of higher penalty),

        2. deter those who will commit felony to be more careful during felony (Depends on empirical question on whether those who commit felonies will fear FM rule),

        3. might deter people who commit felonies and plan to kill will, b/c state will not have prove intention

      3. Consequentialist retribution-people who do bad things should bear consequences; but this is inconsistent w/ larger project of staircasing by mens rea

    3. Modern Limitations on FM Rule

      1. Aaron in Michigan- MI has PA statute that says any “murder” committed in course of certain felonies is 1st degree murder; lawyer argues and court agrees that use of word murder means had to prove mens rea of malice aforethought; no other place with PA statute has interpreted it that way

      2. Dillon CA approach- refused MI reading; but 8th amendment against cruel and unusual punishment says punishment must be proportional and so 1st degree is too high; so bump it down to 2nd degree murder

      3. People v. Phillips (CA Supreme Court- 1966) P 459

        1. Facts- Δ told the parents of a child with eye cancer she should not do procedure to remove eye as doctors had recommended. He offered to perform an operation for $700 that would be less invasive. The child died 6 mos later. Δ charged and convicted of 2nd degree murder.

        2. Rule- “inherently dangerous felony” theory- fraud can’t be basis for FM even though felony caused death b/c not inherently dangerous by statutory definition; Most common limitation in US

        3. Rationale: trying to bring people who get FM closer in line with those who have mens rea close to homicide

      4. PA Statute- added 2nd degree in statute for felony murder; names crimes that are “inherently dangerous”; in reality only a small % of these crimes lead to death (rape, armed robbery, arson, kidnapping, etc)

      5. People v. Smith (CA, 1984) P 466

        1. Facts- Δ beat his child to death. Δ was convicted of 2nd degree felony murder (child abuse as felony likely to cause death), felony child abuse and child beating.

        2. Rule- felonies like manslaughter and assault that merge w/ murder cannot be basis for FM charge; want to prevent collapse of staircasing by mens rea so that all homicides are first degree murder.

        3. Two prong test: Consider if act had independent felonious purpose (by statutory definition). If not, then on ladder of homicides and merger rule applies. Also has “inherently dangerous” felony murder limitation. (Two prong test- most common in US)

        4. At odds with rest of murder doctrine that staircases by mens rea. B/c cuts off those w/ mens rea far from murder and those closest to murder, so leaves nonsensical middle ground.

        5. Two ones Smith court found difficult are:

          1. Burglary- entry of dwelling with intent to commit felony therein; always considered inherently dangerous; problem for merger doctrine b/c depends on what kind of felony you want to commit therein; if intent to kill-> merger, no FM; intent to commit simple assault would also merge; if intent to steal, rape, kidnap -> no merger and FM

          2. Child abuse- neglecting has independent purpose (most courts don’t think inherently dangerous, but CA does) (just can’t be bothered to feed them like in Shockley); physical abuses merge

      6. Note: FM does not require mens rea but it does require causation.

    4. Accomplice Liability doctrine- Three possibilities….

      1. State v. Canola (New Jersey, 1977, r471)

        1. Facts- Δ and three co-felons perpetrated armed robbery. Owner and assistant fought w/ perpetrator, traded gunshots-> death of owner and one co-felon. Δ convicted of armed robbery and 2nd degree murder for death of owner and co-felon.

        2. Rule- agency theory- only guilty for death if caused by co-felon; limitations are: (1) if accomplice who does killing has separate felonious intent; (2) must be done in furtherance of felonious purpose;

          1. This is the narrowest theory of liability and also a bright line rule.

          2. Used to be most common but not anymore b/c does not consider foreseeability.

      2. Proximate cause theory from CL-> broader; doesn’t matter who did killing as long as your felony caused death; if police shoot in self-Δ and kill innocent by-stander, you are guilty of FM; public wants to absolve dead victim from resp for killing;

      3. No redress for the victim- matters not who does killing but who gets killed; implies co-felons deserve to die; Posner says makes no sense; implies that felons deserve to die

      4. ** Today’s rule: Affirmative defense if can show really unforeseeable; often goes along with agency theory; not mentioned by Canola court


    IV. Rape

    A. History

    1. Used to require prompt complaint, corroboration, and woman’s prior sexual history fully admissible (chastity=veracity)

    2. Lord Hale source of famous quote that is part of jury instructions- easy to accuse, hard to disapprove, i.e. be wary of accusations

    3. Most states have accepted rape shield laws; often exceptions for sex w/ Δ; juries treated history as more prejudicial than probative

    4. Some change to rule that cannot charge man for raping his wife

    5. Rape b/t people of same sex is often not criminal (big problem in prisons); even when criminal, treated much less seriously

    B. Issues

    1. Problem of grading- like homicide

    2. Problem of law in changing social attitudes; what is criminal law’s role—aspirational/ normative or conservative/ typical?

    C. Traditional common law definition: rape= sex + force (or threat of force) + non-consent.

    1. Central concepts- “vaginal intercourse” (only women), “by force” or threat of force” and “against her will” or “without consent”

    2. Resistance goes to evidence of non-consent and force (force shown if resistance must be overcome)

    a. In common law, used have to show force to overcome utmost resistanceà put emphasis on action of victim

    b. Then changed to earnest resistance and then reasonable resistance. Few jurisdictions have gotten rid of resistance entirely

    D. Modern Case Law

    1. State v. Rusk (Maryland, 1981, r323)

      1. Facts- Δ brought Pat to his home by taking her car keys and refusing to let her leave in neighborhood she did not know. Once inside she agreed to intercourse asking if it meant he would not kill her and after he lightly choked her. He then walked her to her car.

      2. Rule- Ct upholds conviction, saying in case where no evidence of physical resistance, can get conviction if can show victim was prevented by fear. Adopts subjective/ objective test: fear must be genuine and reasonable.

    2. Problem of Subjective/ Objective standard and perceptions of two parties



    What this victim thought or perceived
    What this ∆ thought or perceived


    What would a reasonable person in victim’s situation perceive?
    What would a reasonable person in ∆’s situation perceive?
      1. Neither statute nor ct talk about mens rea; but does say that victim’s subjective fear not enough; must be objectively reasonable

    1. State in the Interest of M.T.S. (New Jersey, 1992, r338)

      1. Facts- Δ 17 yr old M.T.S. and 15 yr old C.G. lived in same house w/ parents and others. One night M.T.S. came up to room of C.G.. Δ says that she consented and that he stopped when she slapped him. C.G. said that she woke up and he was already on top of her, and she slapped him as soon as she realized what was happening.

      2. Rule- Any act of sexual penetration engaged in by Δ w/o affirmative and freely given permission to penetration is sexual assault. NJ Supreme Court rules that no more physical force is necessary than is needed for penetration; force in NJ then is when have sex in absence of affirmative or freely consented to; means that when you have sex with passive person who has not given consent, then that is rape; court says consent can be verbal or implied; ct cited leg intent of reform mvmnt

      3. Consent taken out of statute b/c too much focus on woman; have redefined force to be burden on govt to prove absence of freely given consent; Δ must give some evidence of consent; if passivity w/ no evidence of consent, then guilty

      4. MTS would be hard to convict under MD law; no evidence of resistance or fear, therefore no evidence of force

    2. Difficulties in Reform:

      1. Reformers said focusing on non-consent put emphasis on victim and led to a lot of procedural rules about resistance, corroboration, etc. So argued for more focus on force. Focuses on force-> proving force via proving resistance; still focus on victim’s acts

      2. Reformers saw many cases where non-consent but no force.

        1. Alston where woman had abusive relationship, he threatens her, he says has right to have sex with her, she is crying but passive and he has sex with her anyway. Court says not rape because no force.

        2. Same problem in PA Berkowitz case where college girl says no, but does not find any other force besides him lying on top of her

        3. Milinarich court said schoolmaster saying have sex or you won’t graduate not rape b/c no force.

    3. WI possibility: rape is sex w/o consent; several levels of non-consent-> first degree if nonconsensual if GBH or pregnancy or dangerous weapon (40 yrs); 2nd degree rape if nonconsensual and STD or psychiatric treatment or threat of violence w/o weapon (25 yrs); 3rd degree if just nonconsensual (5 yrs)

    4. Deceit and Consent

      1. Boro v. Superior Court (California 1985, r348)

        1. Facts- Δ claimed to be a doctor and offered victim a life saving therapy by having sex with a donor.

        2. Rule- Court finds consent induced by fraud still effective as long as relates to collateral matter, not actual act. She knew she was having sex.

      2. People v. Evans (New York, 1975, r346)

        1. Facts- Δ convinced a naïve college girl that he was a psychologist and got her to accompany him to her apartment. When she hesitated to have sex, he told her how foolish and dangerous it was to talk to go home with a stranger b/c they could kill or rape her. Then he told her a story about lost love, and she had sex with him.

        2. Rule- Ct asks whether the behavior ∆ engaged in constituted force. Court says ∆’s conduct not force. Court finds cannot prove beyond a reasonable doubt that he meant his words to be a threat, so do not meet “forcible compulsion” element of rape. Rape cannot be achieved by fraud or trickery

    5. Mens Rea and Rape

      1. Commonwealth v. Sherry (Massachusetts, 1982, r351)

        1. Facts- Three Δs took a nurse home from a party. They took of their clothes and attempted to undress the nurse when she verbally protested. They proceeded to have sexual intercourse with her. Δs appeal saying entitled to instruction that unless find beyond reasonable doubt that accused had actual knowledge of lack of consent, must acquit.

        2. Rule- Ct says that no mens rea defense to rape at CL; but say that if there were to be allowed a mistake of fact about consent as a defense they must prove that: an honest mistake and it was reasonable (other jurisdictions have this standard- most states have this rule- majority American rule). Victim said no, so their subj perception immaterial and they proceeded at their own peril.

        3. What mens rea is this per MPC? Govt has to prove that reasonable person should have known-> negligence

      2. Commonwealth v. Fischer (Pennsylvania, 1998, 354)

        1. Facts- Δ had oral sex with a fellow student after suggestive foreplay. He argued that he thought it was consensual and stopped when she indicated that it was not.

        2. Rule- Williams said that mental state of Δ not relevant.

        3. Commonwealth v. Williams victim got ride from Δ; instead of bringing her to bus station, he brought her to dark area where he threatened to kill her and asked for sex. She said “go ahead” b/c afraid. Δ appealed conviction saying he believed her to have consented; court held that if legislature wants Δ’s belief about victim’s state of mind to be a defense, then it must pass the law. This case => Δ in this case not entitled to instruction.

        4. Rhodes (from Milinarich dissent), i.e. force means “intellectual, moral or psychological force” and put it into statute; Δ tried to argue this meant needed to consider his mens rea

        5. MA and PA have strict liability.

      3. Morgan rule-

        1. Facts- officers in England have sex w/ friend’s wife, even though she was screaming b/c they said husband told them she liked it

        2. Rule- An honest belief is enough to get found not guilty, even if it is not reasonable.

      4. Reynolds P 359 - imposed “recklessness” standard on mens rea for rape; minority rule in some states; must “consciously disregard” lack of consent; shows hydraulic rel b/t mens rea and force/ resistance req’ts

      5. MPC §213 Sexual offenses.

        1. Rape: if (1) compelled by force or threat of imminent death, serious bodily injury, extreme pain or kidnapping; or (2) impaired her ability to control conduct by drugs or intoxicants without her knowledge; or (3) victim unconscious; or (4) female less than 10 years old.

        2. Rape is second degree felony unless infliction of serous bodily harm, or victim was not date of ∆ and never had sex with him prior

        3. Gross sexual imposition (third degree felony)

          1. threat that would prevent resistance by woman of ordinary resolution

          2. knows victim is mentally ill or that victim unaware of sexual act or mistakenly thinks ∆ is her husband

        4. MPC defines what threats count but doesn’t define force. MPC doesn’t define mens rea (In absence of definition, doesn’t let go down to recklessness)

    V. Justification and excuses

    • Justification- Law Enforcement, Self-Defense and Necessity or Choice of Evils

      • Why would we want this complete defense?

        • Utilitarian grounds- we want people to make this choice; socially desirable

        • Retributivist grounds- chosen to do something for which there is no need to express society’s repugnance; act is not blameworthy

        • Example: Police shoot carjacker as he puts gun to your head in the car

        • Gen test- If behavior is justified, usually anyone could do same behavior, not just Δ; not always true w/ force that law enforcement can use

    • Excuse- Insanity and Duress;

      • Society does not like this behavior but understands and excuses it

      • Example: run over police officers when bank robber says he’ll kill you if you don’t à duress

      • Test: If peculiar to Δ, probably an excuse

      • Sometimes two categories merge

    A. Self-Defense

    1. Why do we allow someone to kill in self-defense?

      1. Language of justification: Chose to have aggressor who is acting wrongly die rather than good person.; Speaks language of utilitarianism.; like person getting temporary use of law enforcement monopoly on violence

      2. Language of excuse: Person so scared, they could not avoid killing. Speaks language of retributivism- there is some instinct to preserve own life that is not a choice and cannot be overcome by law.

    2. Common Law Requirements

      1. United States v. Peterson (District of Columbia, 1973, r750)

        1. Rule- Must 1) honestly believe, 2) reasonably believe that use of force is 3) necessary to repel 4) imminent and unlawful force.

        2. 1- Belief that must use force to repel unlawful force must be GENUINE (if not afraid, even if reasonable person would be, no defense) and

        3. 2- REASONABLE- do not necessarily have to be right; just must be reasonable

        4. subjective and objective tests must be passed

        5. 3- NECESSITY- must be necessary to use deadly force; can use deadly force to repel threat to life, serious bodily harm, rape, and in some states robbery; response must be proportionate to initial force; eg- Harvard student convicted of voluntary manslaughter b/c force was not proportional to non-deadly force of being punched

        6. 4- force used against you must be UNLAWFUL- can’t kill arresting officer and cannot kill one who is about to kill you in self-defense; does not have to be criminal, e.g. child or insane person who has complete defense can be killed in self-defense; legality of force is issue; and IMMINENT- equivalent to cooling off in provocation

      2. Duty to Retreat: State v. Abbott (New Jersey, 1961, 788)

        1. Facts- Δ and Mary and Scarano share a driveway; Δ has fist fight w/ their son about use of driveway; Δ punched him; father came at Δ with a hatchet and wife with a knife and fork. All Scaranos hit by hatchet; Δ said he wrested hatchet from Scaranos, but did not wield it. Abbott acquitted of assault on Mary and Michael, but convicted as to Nicholas.

        2. Rule- Court says proper instructions on retreat are: cannot use deadly force (even if don’t kill) if knew that he could retreat with complete safety

        3. True man doctrine- In US, stick less to retreat rule than in England

          1. Retributivist justification: can’t expect someone to rationalize situation when being attacked; voluntariness idea (as in mitigation context); Holmes quote –“can’t expect detached reflection in face of raised knife”

          2. Actual justification was that real man stands his ground and does not run like coward; most in line with expressivism that society wants to encourage certain kinds of character and that does not include cowardice


          1. Cf. mitigation in heat of passion context--Same as man who finds wife with other man; true man does not stand for that

        1. MPC, Eng and US CL all say need not retreat in home; MPC includes place of wk as well

    1. MPC and Reasonableness (central problem in S-D law)

      1. MPC §3.04- Use of Force in Self-Protection at P1049

        1. MPC says just must believe person is about to use deadly force; the says if negligent or reckless in coming to that belief then guilty of crimes up to that mens rea per §3.09; no state has adopted this b/c too philosophical; (reckless as to correctness of belief?) NY has added wd reasonable

        2. MPC also has words “in his circumstances”; “reasonable person in actor’s situation”; court says means “reasonable” in objective way; circumstances means more than physical attributes of persons involved and prior experiences; size is unproblematic, but should race be allowed (if prior muggings were committed by black men); does clothing style matter?

      2. People v. Goetz (New York, 1986, r751)

        1. Facts-

        2. Rule- Court notes NY added reasonable to MPC to get obj stnd; The words “reasonably believes” in the statute were correctly explained as what a reasonable man would do under the circumstances.

        3. Circumstances means more than physical attributes of persons involved and prior experiences; size is unproblematic, but should race be allowed (if prior muggings were committed by black men); does clothing style matter?

        4. Raises issue of how much law should individualize the standard.. SEE FULL NOTES 10/20 (three determinative factors of law- degree of individualization; when can use s-d; and reasonable fear vs. reasonable belief)

      3. Individualization: State v. Kelly (New Jersey, 1984, r763)

        1. Facts- Δ and husband had abusive relationship. On day of killing, she went to his friend’s house. He was drunk and as they were walking he began to yell, pushed her, and choked her. He charged at her with his hands up and she stabbed him with a pair of scissors.

        2. Rule- Expert on battered women could testify as to: (1) reasonableness to fear that she was in danger à more sensitized to beatings and likely outcome (2) sincerity of fear à she was scared even though she did not leave; (3) reasonableness of not leaving, i.e. she could not

      4. Imminence: State v. Norman (North Carolina, 1989, r776)

        1. Facts- ∆ had been abused by victim/ husband for 25 years. ∆ called police who wouldn’t arrest unless she filed complaint. ∆ didn’t because she was afraid husband would kill her. ∆ went to local mental health center where he followed, dragged her out and beat her. Δ shot him while he slept.

        2. Rule- NC law requires that defender had reasonable belief that death or GBH was imminent; imminent means immediate danger that must be instantly met…., no time to call for help or law.

      5. Issues raised by Norman and Kelly

        1. Question of reasonableness- what does experience of these women add?

          1. think of reasonableness on sliding scale w/ four stopping points: subjective (honest belief- argument against negligence as mens rea for homicide), specific “situation”, general “situation” (general category), and objective (beamed down from cloud reasonable person); must make normative judgment…

        2. Question of proportionality-What should women do in face of larger, stronger man? Very rare for two people to be of equal size; when have ordinary force match up, when can person of lesser strength resort to deadly force

        3. Question of imminence: No question Norman feared that husband would do horrible things in near future but he was sleeping; law of imminence tends to be very strict; no preemptive strike doctrine; must be immediate threat; some cts treat inevitable as imminent

    B. Necessity and Duress


    Justification column
    Net Gain
    Excuse Column
    Even or Net Loss
    Victim is threat
    Person threatens 5 people. You kill person. Have defense of necessity or self defense
    5 People threaten to kill you. You have defense of self defense
    Nature is threat
    Flood is coming which will flood town but diverting it will kill inhabitants of farmhouse. Have defense of necessity
    Flood will kill your farmhouse unless you divert it so it kills town. You have no defense
    Third person is threat
    Person has gun to your head and says “Save town or I’ll kill you.” You have defense of necessity or defense of duress.
    Person with gun says save farmhouse and kill town. You have defense of duress if available for homicide..
    1. Necessity- requires balancing to det if society is better off, i.e. has net gain, b/c of what you did

      1. Can claim almost anytime evil resulting less than evil that would result;

      2. Ex) Destroy one house to create fire break to save rest of city; smash window of car to get fire extinguisher to put out fire in orphanage with 400 sleeping orphans inside; when kill one threatener to save 100, just plain self-defense defense

      3. Retributivism, utilitarianism and expressivism prefer this complete defense to alt methods like clemency, no sentence, prosecutorial discretion and jury nullification

      4. People v. Unger (1977, r809)

        1. Facts- Δ walked away from prison after being threatened with sexual assault by other inmates. He had not reported the threats to officials, and had made no effort to notify officials at the time of his capture (though he claimed that that was his intention).

        2. Rule- Court says below case guide to credibility of claim, not absolutely necessary conditions for necessity defense.

        3. Lovercamp Rule-(1) faced w/ specific threat of harm, sexual attack or death, (2) no time for complaint to authorities or history of futile complaints, (3) no time or opportunity to resort to courts, (4) no evidence of violence toward personnel or innocents in escape and (5) prisoner reports self once danger gone.

      5. Public Comm. Against Torture v. State of Israel (Israel, 1999, r827)

        1. Israeli S.Ct. refuses to excuse torture ahead of time, but says in “ticking time bomb” cases accused agents will be able to raise necessity defense. Fear that will encourage torture in give pre-clearance.

        2. Flip side of utilitarian argument about giving clear warrant to commit certain bad acts

        3. NJ has same policy


      1. United States v. Schoon (1992, r820)

        1. Facts- Δ splashed fake blood and disrupted govt building, claiming necessity defense b/c their acts of protest were necessary to avoid further bloodshed in El Salvador.

        2. Rule-4 criterion must be met: (1) there was choice of evils and lesser was chosen, (2) acted to prevent imminent harm, (3) reasonably anticipated direct causal rel b/t conduct and harm to be averted, and (4) no legal alternatives to violating law. Indirect civ disobedience will always fail 2 and 4.

      2. People v. Bordowitcz (1991, Supp, optional reading) where the courts felt that an organized needle exchange was too speculative to qualify. It also stepped on the toes of the legislature.

      3. MPC §3.02 Choice of Evils

        1. Conduct that actor believes to be necessary to avoid harm to other or to self is justifiable,

          1. So long as harm sought be avoid is actually greater than that sought to be prevented by law defining offense charged

          2. AND no code, law or legislative intent creates exceptions;

          3. May not have acted recklessly or negligently to cause threat

      4. Variations

        1. NY Law: requires that it be an emergency (imminence limit like in self-defense); requires no prior fault of Δ (no defense at all); good seeking must clearly outweigh harm that would be caused; eg) debates on medical marijuana usually come to draw and so in NY would not have defense

        2. Most take homicide off table; must hope not to be prosecuted

        3. MA Law: must have had no alternative to what he did (takes out all pol protest cases)

    1. Duress

      1. Must come from third person

      2. Not all jurisdictions recognize duress as a defense to homicide

      3. Reason for duress defense is retributive, i.e. w/ third person you lack choice in the matter; can make deterrent argument as wellà no deterrent for a person w/ a gun to his head

      4. Not even MPC covers threat from nature

        1. If flood and just one person in car and two people in street and would have to run over cliff to save self; no defense even under MPC; circumstances must be created by third person

        2. In case of nature cannot transfer mens rea onto third person and punish him; no opportunity for revenge w/ nature; punish person even though feel they are morally blameless; raises real question about why it is we punish

      5. Rationales relate to:

        1. Involuntary acts- duress like someone else acting thru Δ, when someone has gun to his head; psychological analog

        2. Rape- asks what kinds of threats ought someone to submit to vs. what kinds of threats ought a person to resist; although talking about perpetrator not victim

        3. Self-defense- what can one do to save self when harms innocent rather than aggressor

      6. MPC §2.09- broadest b/c allows as defense to homicide

        1. It is affirmative defense if Δ engaged in conduct b/c coerced to do so by use or threat to use unlawful force against his person or another person, which a person of reasonable firmness in his situation would not be able to resist

          1. Cannot have recklessly or negligently put self in situation

          2. Not reasonable person- no reasonable wimp stnd

          3. Unlike CL, no imminence requirement

        2. Powerful defense b/c can be coerced to do grtr harm

        3. State v. Toscano- NJ- where Δ’s family threatened if did not commit fraud, ct throws out “immediate and pending” requirement of CL for MPC; rationale- Believed CL standard not consistent w/ justice when person committed small crime. Should not require heroism of people

      7. Imminence and Duress: United States v. Contento-Pachon

        1. Fact- Drug mule case, where Δ claims did not abandon mission b/c afraid for his family and corrupt govt.

        2. Rule- Jury could find that Δ satisfied CL duress requirement that threat be immediate and inescapable.

        3. CL Formulation- threat present, imminent, pending and inescapable; man of ordinarily fortitude might yield; reasonable believe death or GBH will be inflicted

      8. Imminence and Duress: United States v. Fleming

        1. Facts- Δ charged w/ helping Koreans do propaganda; he claims duress b/c had been threatened that eh would be forced to sleep in caves and walk thru cold, probably to death.

        2. Rule- Danger of death or GBH not immediate. Resistance must have brought you to last ditch. Ex) started walking thru snow and realized would die soon.

      9. Ruzic (Canada)

        1. Facts- another drug mule case

        2. Rule- Law requiring imminence unconstitutional. If threat was believed, then threat gave her no choice even if not immediate threat and person was not present. Says her acts were “morally involuntary.”; US fears overuse of defense

    C. Insanity: An Excuse-

    1. Nature and Consequences

      1. Like duress, an excuse not a justification; also like duress, analogous to involuntary acts doctrine; unlike duress not due to external pressure; by definition, an insane person not reasonable; internal forces take away choice; only place that law addresses unreasonable person; as a result, leads to special verdict

      2. NGIà immediate institutionalization until no longer insane and no longer danger; therefore institutionalization often exceeds max sentence for crime; so many Δs do not raise insanity defense; courts often turn blind eye to it; only really litigated in capital cases or homicide cases when consequences so severe

    2. Historical Timeline

      1. Early Eng law- men as “wild beasts”

      2. Cognitive Standard and M’Naghten in 1843

        1. Facts: Δ killed PM’s assistant while trying to kill PM and got off on insanity defense

        2. Rule: To est defense of insanity must prove at time act committed person under effect of defect of reason or disease of mind as to not know quality of act or it was wrong. Charge jury to det if person knew right from wrong at time act committed, not whether generally know the difference.

        3. Some courts had prob w/ rule b/c cases that did not fall under rule but were insane and seemed unable to stop themselves from doing act; ex) kleptomaniacs and other people w/ obsessive disorders are often unable to stop themselves; so minority of courts came up with idea of irresistible impulse

      3. Durham in DC circuit in 1954- wrote that rule ought to be productivity ruleà whether Δ’s crime was product of mental disease or defect;

        1. Must show causal rel b/t mental illness and crime; doctors say if mental illness caused behavior or if had indpndt cause;

        2. Problem was à war of experts; reached peak of prob in Weekend flip-flop case changed book of diseases included as mental illnesses over weekend and changed in middle of case; doctors who testified yes on Fri were recalled on Mon

      4. MPC §4.01 in 1962

        1. Not responsible for criminal conduct if: at time of conduct as a result of mental disease or defect

          1. lacks substantial capacity to appreciate criminality/ wrongfulness of conduct OR

          2. to conform his conduct to requirements of law

        2. First rule not to treat insanity as on/off; don’t have to be totally sane or totally insane; “substantial capacity” à partially impaired

        3. M’Naghten rule + irresistible impulses doctrine (ex- kleptos who know it is wrong but cannot help it)

      5. Blake

        1. Facts- Δ w/ history of mental disease commits bank robbery then goes to court.

        2. Rule- Court believes he knew what he was doing but something wrong with him so does not deserve full punishment; so court adopts MPC

        3. Similar to Green, where Δ (schizophrenic who murdered officer) contacted FBI agent and heard voices. Ct says could not have conformed behavior to law.

      6. US v. Lyons (5th Circuit, 1984)

        1. Facts- Δ began to suffer from painful ailments years ago and to take drugs to lessen pain. He claims he became addicted and experts testified that addiction affected his brain so he “lacked substantial capacity to conform his conduct to requirements of law. Trial court excluded this evidence.

        2. Rule- Ct affirms and drops volitional prongà back to M’Naghten. Nationwide response after Hinckley gets NGI verdict.


      1. 1984 Congress passed federal statute superceding in all circuits the MPC standard; must have “severe” mental disease or defect and Δ must be unable to appreciate wrongfulness of conduct; shifts burden of proof to Δ and raises standard to “by clear and convincing evidence”; Statute basically codified M’Naghten rule but shift burden of proof to Δ


    VI. Expanding Liability

    A. Attempt- Of 3 key doctrines of crim law, something is missingà (1) causation; no harm caused and (2) actus reus in some cases

    • Completed attempts- do everything to commit act but fail; bullet misses; actus reus is present here

    • Uncompleted attempts- taking out gun to shoot but police stop before raise it or pull trigger; buy cake mix but not poison yet; in some states an attempt;

    1. Attempt Law and the Purposes of Punishment

      1. Deterrent- want some punishment but less than completed crime; so that there is still something to keep you from trying again; some want same as punishment for completed crime; Law and Econ want higher punishments for repeated attempts

      2. Incapacitation- any reason have to incapacitate person who succeeds holds for one who tried; also rehabilitation

      3. Retributivism- just as bad as if try to kill someone and fail as someone who happens to be a better shot; made same choice; also expressivism

    2. Attempt: Causation Redux

      1. Every jurisdiction has huge discount for attempt; some have small 5 yr penalty for all attempts; some gear to how bad attempted crime was

      2. Why do we punish less, when intent the same? Maybe intuitive desire to punish more when harm happens, even when intent the same-à Consequentialist objectives

    3. Attempt: Mens Rea- where expanded liability, law tends to up requirements that are left; i.e. when no causation required then up mens rea requirement like in attempt; hydraulic relationship

      1. CL Specific Intent Requirement: Smallwood v. State (MD, 1996, p556)

        1. Facts- Δ raped three women, and did not use protection though he knew he was HIV positive. Charged with 3 counts of rape and armed robbery and three counts of assault with intent to murder.

        2. Rule- Must have specific intent (MPC= purpose) to bring about death w/o justifying or mitigating circumstances; can infer intent from surrounding circumstances like probability that result would occur per Raines (shoot thru car window of driver)

        3. Court distinguishes cases where others allow attempted murder charges to lie for conveyance of HIV (one had statement that Δ admitted he would try to spread HIV and he lied about it to partners, à evidence of purpose; in prison case, he spat on guard after told people he wanted to give him HIV)

        4. Note: murder usually just requires recklessness +; but w/o causation req. or full actus reusà increase to intent (hydraulic rel)

      2. MPC §5.01 (1) (r1060): Δ is guilty of attempt to commit crime when w/ culpability otherwise req’d for commission:

        1. (a) Conduct crimes- purposely engages in conduct which would constitute crime if circumstances as he believes them to be

        2. (b) Results- when result element, does or omits to do anything w/ purpose or belief that will cause conduct w/o any further axn

        3. (c) Gen/ actus reus- Purposely does or omits… anything that under circumstances as he believes them to be, would constitute substantial step toward commission (§5.01(2) Sub step-def)

        4. ** Breaks up crimes by- Conduct (for rape is sex), results (for murder is death) and attendant circumstances (age of person raped; gives hints as to how bad it is though to be

        5. Smallwood would have to believe that he would kill women to be convicted under MPC; would turn on fact inquiry; so MPC opens opportunity to convict Δ where CL would not

      3. CO has law of attempt- w/ same mens rea as offense contemplated and engage in conduct constituting substantial step toward commission; could get Smallwood for recklessness+ murder

        1. Problem- Anytime arrest someone for reckless driving or driving too fast, could be charged with attempted reckless homicide; Would covert every reckless act to attempted reckless homicide; no such thing as attempted involuntary manslaughter in CL b/c every time have intent required for attempt, i.e. purpose, you will have attempted murder

        2. CL has no attempted invol manslaughter b/c once have intent requ’d for attempt, i.e. purpose, already at attempted first deg murder

    4. Attempt: Actus Reus Timeline Spectrum (in descending order of stringency)


    Completed last stepà Eagleton

    dangerous proximityà Rizzo

    forming intent Mcquirter

    Res Ipsa Loquitur

    à King

    substantial step



    some actà White








      1. Rule from Eagleton- To be attempt rather than preparation, must have taken last step he could take on road to criminal intent, i.e. firing gun even if miss or jammed. Before then still can repent.

      2. CL Standard: People v. Rizzo (New York, 1927, r565)

        1. Facts- Δs ride around looking for man w/ payroll; jump out at wrong building where man was not present.

        2. Rule-Adopts Holmes standard: must be in “dangerous proximity” to success; this lets a lot of bad guys off (also undercover cop who attracts pedophile on internet and has him meet them); police got there too soon

      3. Rule from White- First admin of poison in plan to kill by slowing poising is attempted murder. Completion or attempted completion of one of series of acts intended to kill, even if completed act would not kill = attempt to murder. Any act enough b/c attempt law really just trying to punish intent.

      4. King v. Barker (NZ, 1924, r570)

        1. Res ipsa locquitor- equivocality test- action bespeaks intention to commit crime; baking cake w/ rat poison; “moving target” on spectrum depending on act (sometimes first act bespeaks, sometimes last). Confession of intention not enough; would foreclose McQuirter

        2. Buying matches not enough; but buying, going to haystack, holding it out, but then blowing it out à crim attempt.

      5. MPC Substantial Step per §5.01(2)

        1. Measures how far from mere intent rather than how far from completing goal like dangerous proximity standard; includes statutory list; problem is it takes away sliding scale or balancing b/t mens rea and actions taken

        2. Statutory list: lying in wait, enticing victim to go to place of crime, reconnoitering place contemplated, unlawful entry, possession of materials for crime that have no lawful use under circumstances, and soliciting innocent to engage in conduct that is element of crime

      6. McQuirter v. State (Alabama 1953, r569)- Mere intent enough

        1. Facts- Black man just near woman on street; she thought he was following her to rape her. Sherriff testifies he confessed, and he was convicted of attempted assault.

        2. Attempt is not only crime in which preparatory behavior is punished; assault is threat to harm someoneà also crime of preparation (battery is actually hitting other, threats, solicitation); so punishing attempt to attempt, which is intent

        3. Rule- State law said must prove that there was intent to commit rape. Intent factual question to be determined by jury on evidence presented. May consider social customs based on racial differences. Enough evidence to sustain verdict.

    1. MPC §5.01(4) Renunciation as a defense- affirmative defense added by MPC; not in CL

      1. Must abandon effort or prevent it voluntarily in way to show change of heart; don’t have to stop consequences of crime; cannot be b/c threat of discovery;

      2. Even works if have already crossed threshold to act, but cannot have already completed attempt (must still be something more you could do to complete attempt); must change mens rea before you get caught

      3. May not repent even if crime not yet discovered, e.g. by returning stolen goods; b/c have already done last act

      4. Reflects discomfort w/ crime of attempt

    B. Complicity

    1. Issues

      1. Also missing causation (no “but for” rq’mt) and most of actus reus (very minimal act requirement as in Stevens in Dudley and Stevens

      2. Historically, at CL were 4 diff grades of aiding and abetting

        1. Principle in 1st Degree (person who does the act itself)

        2. Principle in 2nd Degree (person who actively aids and is present)

        3. Accessory before the Fact (help plan, like hiring a contract killer)

        4. Accessory after the Fact (aid after in escape or evidence disposal)

      3. Modern CL has merged first three into one category; last is separate

      4. “In a penny in a pound” theory

      5. Degree of aid is a factor to be taken into consideration at sentencing; Problem in places w/ mandatory sentencing (MA) for 1st degree murder

      6. When convicted as accomplice to a crime, you are convicted of that crime; complicity is just a thy of liability

      7. Like attempt, not crime in and of itself; must be linked to another crime

    2. Mens Rea- CL high rq’mt evinces hydraulic rel b/t actus reus and mens rea

      1. Hicks v. United States (U.S. 1893, r607)

        1. Facts- Δ present with man who shot the victim. At points leading up to the shooting, Δ laughed, took off his hat, and told the victim to remove his and die like a man. Δ then rode off with the shooter.

        2. Mens Rea Rule- Purpose to encourage the crime is mens rea; cannot just deliberately do act that is interp as encouragement.

        3. Presence rule- ct says that mere presence + intent not enough unless evidence of prior conspiracy (b/c knowing he had backup if needed is a form of encouragement); mere presence can be encouragement, iff there is prior communication. OTW, need clear act of aid or encouragement.

        4. Can glean two basic principles of accomplice liability:

          1. Action w/o purpose not enough AND

          2. Intent not enough w/o some kind of aid or actual encouragement like prior encouragement

      2. Hypos: n1, P 609

        1. No, b/c intent not enough w/o aid or encouragement; not even clear it was his purpose to bring about murder

        2. No, satisfaction not à intent that encouragement lead to crime (mens rea); actually gave encouragement (actus reus); diff b/t encouragement and having purpose that aid will help bring about crime; jury would have to find that what you did was aid and that purpose was to have axns bring about

        3. No, has purpose to resolve to help, but no act (doesn’t communicate that to Rowe)

        4. Yes, has purpose and prior communication amts to encouragement

      3. Purpose v. Knowledge: State v. Gladstone (WA, 1980, r611)

        1. Facts- Thompson approached Δ attempting to buy drugs; Δ had none for sale, but gave him address/map to Kent’s place, where he was able to buy drugs. No communication b/t Kent and Δ.


        1. Rule- Quotes Hand- must show Δ “in some sort associate himself w/ the venture, that he seek by his axn to make it succeed.” … show some “purposive attitude.” Ct says that referral is a kind of aid but w/o communication need mentor-like rel, commission agmnt or prior agmnt to aid each other in this way.

        2. ** Need not be communicationà can show evidence that wanted to aid and did aid w/o communication

      1. Has been push by some to lower mens rea to knowledge to include this kind of aid; E.g.) car dealers selling cars to people they know are drug dealers, but have no purpose to aid them

        1. MPC drafters wanted knowledge to include those who know that their goods and services will be used for illegal purposes; but would sweep too many people in; MPC retains specific intent req’t

        2. Posner in Fountain- took place at Levinsworth prison; shackled inmate took shank from prisoner who lifted up his shirt to show homemade knife, which was used to kill guard; question of whether knowledge or purpose should be enough to charge man who lifted shirt w/ murder; Posner said that knowledge should be enough in very serious crimes

      2. NY created crime called criminal facilitation; P 614 renders aid believing it is probable aid will be used to commit felony and it is used that way; here mens rea is recklessness; this crime is a class A misdemeanor

      3. MPC §2.06- Person is an accomplice in commission of offense:

        1. (3)- When with the purpose of promoting or facilitating the commission of the offense he: solicits another person to commit it; aids OR agrees OR attempts to aid in planning or committing; having legal duty to prevent offense, he fails to do so

        2. (4)- When causing a result is an element of the offense, accomplice in conduct causing that result, acting w/ kind of culpability w/ respect to the result that is sufficient for the result

        3. (7)- Accomplice can be convicted on proof of commission of offense and complicity therein, though principal not prosecuted, convicted, convicted of diff or diff degree of offense, has immunity or has been acquitted

        4. ** Note CL does not include attempt to aid- must actually succeed at aiding; if in Tally telegraph operator refused to not deliver telegraph; MPC creates crime of attempted aid- would include this

    1. Decline of Mens Rea: People v. Luparello (CA, 1987, r615)

      1. Facts- Δ wants friends to get info about former lover from Martin at any cost; on 2nd meeting friend shoots Martin; Δ charged w/ 1st degree murder as aider and abettor. Ct finds Δ reckless as to death of Martin.

      2. Rule- Reasonable foreseeability test- Δ is liable for the acts of an accomplice when the result is a natural, probable and foreseeable consequence of the actions they set in motion, i.e. encouraged and aided. ***Still must have purpose or intent to aid or abet in original crime.


    2. Actus Reus

      1. Wilcox v. Jeffery (England, 1951, r628)

        1. Facts- Jazz musician from US does not have a work permit for England; ct assumes that Δ knows this; Δ held responsible as accomplice in violating immigration laws; actus reus- buying tickets and cheering at concert hall

        2. Rule- Only minimal encouragement req’d; need not be “but for” causation

      2. State v. Tally (Alabama, 1894, r629)

        1. Facts- Δ tells telegraph operator not to deliver telegraph warning that Skelton brothers going to kill Ross to avenge seduction of judge’s sister-in-law.

        2. Rule- Does not matter that Skelton brothers did not know Δ was trying to aid them. Any act that makes commission of crime easier for perpetrator if done w/ purpose of aiding est complicity liability.

        3. Ex) Could put bricks in saddle bags of victim’s horse even if horse so slow he would not have gotten away anyhow

      3. Hydraulic Rel to mens rea- used to be such low act req’t b/c mens rea so high; but w/ Luparello both mens rea and act req’ts very low; popular w/ prosecutors b/c easier to prove than principal crime

    3. MPC Defense of Renunciation- defense did not exist at CL

      1. MPC says can get out of accomplice liability if: wholly and voluntary renounce and deprive prior complicity of effectiveness (gets telegraph mngr to give telegraph), tells police or otherwise tries to prevent success of crime

      2. Adopted by many states; Harder to get out of than attempt b/c harder to change the acts of others

    C. Conspiracy- Crime of agreement to do another crime;

    • Elements: Has actus reus (expression of assent) and mens rea (intent); but no causation req’t;

    • Purposes of conspiracy liability: useful tool in prosecuting organized crime, organized groups are far more likely to plan well; they learn from each other and allocate resources well;

            • want special rules to get at group liability (like aiding and abetting);

            • time frame aspect- no completed harm in inchoate crimes; allow to stop crime before get close at all to completion; change law enforcement from reactive to preventative; unlike complicity at CL, crime need not succeed for consp liability to lie

    • Prosecutorial Advantages

      1. In general-

        1. easy to prove (agmnt); higher punishment (except MPC- only punish for both if conspiracy’s scope broader than what was actually done ) (CL punishes conspiracy and crime)

        2. conspiring to commit offense is felony even if crime is misdemeanor; procedureà can try case anywhere any conspirator committed overt act; (less than attempt- substantial step)

        3. can try all conspirators together in one trial, guilty by association, prosecutor gets help from Δs (ex- Pizza Connection case);

        4. every act and every statement made by one conspirator is admissible against all in conspiracy (conspiracy sees all members as agents as others)à hearsay allowed in courtroom

        5. Pinkerton rule

      2. Krulewitch v. United States (US SC, 1949, r671)

        1. Facts- Δ and woman charged with conspiring to induce another to travel across state lines for the purposes of prostitution. When caught, one woman warned the other not to tell police Δ involved.

        2. Hearsay exception- Normally not allowed in ct. For conspiracy—any statement made by any conspirator in furtherance of conspiracy is admissible against all

        3. Rule- Rejects implicit subsidiary conspiracy doctrine (always implicit conspiracy to cover crime) b/c alleged crime (covering crime) not charged, and could argue that most out-of-court statements fit this category. Exception is conspiracy—any statement made by any conspirator in furtherance of conspiracy is admissible against all

      3. Pinkerton v. United States (US SC, 1946, r684)

        1. Facts-Daniel and Walter both charged w/ 10 substantive crimes and one count of conspiracy for violating Internal Revenue Code. Daniel had not actually taken part in any of substantive crimes, and was actually in jail when many of them were committed.

        2. Rule- When conspiracy exists, guilty for all crimes by conspirators that (1) fall w/in scope of original projectà part of original conspiratorial objective (drops out of rule later), (2) could be reasonably foreseen, (3) and are committed in furtherance of the conspiracy.

      4. Variations: State v. Bridges (New Jersey, 1983, r687)

        1. Facts- Δ got in argument at a party; came back w/ friends who had guns. Δ starts fighting with person; friends stand guard and shoot a bystander.

        2. Rule- Ct affirms- says need not be w/in scope of conspiracy.

      5. State v. Alvarez (11th Cir., 1985, r699)

        1. Facts-During undercover drug buy at hotel in Miami, officers raided hotel and one undercover killed; another seriously injured. Alvarez and Simon shot agents and convicted of 1st degree murder; 3 others did not shoot but were convicted of 2nd degree murder.

        2. Rule- Ct says that Pinkerton rule doesn’t require that w/in scope of original conspiracy. Enough evidence for jury to find murder was reasonably foreseeable result of large drug deal; they were not minor participants and they may be held liable for reasonably foreseeable, though originally unintended, results of drug deal conspiracy.

    • Actus Reus and Mens Rea

      1. Conspiracy Generally: People v. Lauria (CA)

        1. Facts- Δ ran answering service used by prostitutes; he knew they were using the service for their business. Δ did not inflate the prices for the prostitutes, nor was it a lg pt of business.

        2. Rule- Intent is “gist” of conspiracy; knowledge not conclusive but probative in est intent, interested cooperation, stimulation, instigation or a “stake in the venture.” W/o direct proof of intent, can infer from volume of business, no other legal use, or hike in prices for prostitutes.(had a “stake”

        3. Rule: Est intent of supplier of goods to participate in crime when (1) direct evidence he intends to participate, (2) thru inference he intends to participate based on – a) special interest in activity or b) aggravated nature of crime itself.

        4. So need knowledge + purpose generally, but says there is an exception for serious felonies like murderà rationale is that distinction b/t misdemeanor and felony defines individual’s resp to society; cites Posner in Fountain

      2. Proving agreement: Interstate Circuit, Inc. v. US (S.Ct., 1939, p694)

        1. Facts- Conspiracy w/ movie distributors and exhibitors where all distributors raised rates and stopped showing double features on first run movies at same time; all sent letter asking to do this and all knew letter had been sent; à violation of Sherman Act

        2. Rule-Ct relies on knowledge and motive to infer act of agmnt, backed up by actual concerted axn; imagine that in absence of agmnt would see competition, but there was no competitionà therefore there must have been an agmnt

    • Scope:

      1. Rimmed Wheel: Kotteokos v. US (US S.Ct., 1946, r714)

        1. Facts- Brown helped people defraud fed govt an d give loans to people who were not entitled to them; Δ was helped by Brown; but Brown helped many others as well; all tried together as one big conspiracy; (efficiency vs prejudice)

        2. Rules- Ct says should have been many conspiracies; to connect into one conspiracy must have common purpose or interest; must have rim around spoke of wheel

      2. Complete Wheel: Anderson v. Superior Court (1947, r718)

        1. Facts- Δ referred women to an illegal abortion doctor. She knew his business and knew that other people also made referrals.


          1. Rule- Ct ruled that there was a “rim”; do not have to know the co-conspirators, provided you knew that other people were involved and shared a goal. (Common interest in keeping Stern’s bus going)

          2. like “two salesmen in the same shop;”; can always create rim in this way for illegal business/ contraband operations

        1. Chain Structure: Blumenthal v. US (S.Ct., 1947, r717)

          1. Facts- Δs involved in scheme to sell whiskey at illegally high price. They did not know the producer or other distributors.

          2. Rule- Ct says all one b/c all rely on each other for success of operation. Δs had knowledge of scope of conspiracy if not its limits and sought a common end w/ other Δs. Distinguishable from Kotteakos in number of agreements and in that each agreement had its own illegal end goal in that case.

        2. US v. Bruno (2nd Cir., 1939, r718)

          1. Facts- Δs drug dealers convicted of conspiring w/ smugglers and importers of drugs.

          2. Rule- Jury could have found all parties part of same venture, where success of one part dpndnt on success of whole. All knew they were part of large distribution scheme.

        3. US v. Borelli (2nd Circuit, 1964, r720)

          1. Facts- Case dealing with elaborate heroine importation and distribution operation

          2. Rule-Judge Friendly says that crime they are trying to get at is large scale business; doesn’t make much sense to say that street-level drug dealer conspired with smugglers; to get at mobs do a little damage to agreement requirement of conspiracy

      1. What if there are multiple criminal objectives?

        1. Question in Braverman; answer same as in MPC- only one b/c crime is crime of agreement; so ask how many agreements, not how many statutes violates

      2. MPC §5.03 Criminal Conspiracy- (1) W/ purpose of promoting or facilitating commission of crime: Δ agrees that they or one of them will engage in conduct that is a crime OR agrees to aid in planning or commission, attempt or solicitation of crime

        1. Chain conspiracy like Bruno, conspiracy can be diff in scope may be diff depending on knowledge and dependency of actors; allows unilateral conspiracy; unpopular b/c inconsistent w/crime of agmnt (distributors conspired w/ dealers but not vice versa)

        2. (6) Renunciation—must thwart success of conspiracy under circumstances manifesting a voluntary and complete renunciation. (Must do more to avoid liability under conspiracy than under accomplice or attempt)

        3. (7) Duration- crime committed; Δ and others abandon; no overt act by anyone; as to indiv when tells others he abandons or notifies law enforcement


      VII. Sentencing

      A. Types of sentencing regimes:

      1. Discretionary Indeterminate - still in about ½ states use; judge can sentence w/in role and parole board decides when a person is actually eligible of release; usually a range of 1/3; attacked in last 20-30 yrs so federal govt and ½ states have determinate regime; no appeal of sentence

      2. Determinate regime- no parole and small, if any range; include Sentencing Guidelines (reproduces substantive law for sentencing)à criminal history and offense level; judge may depart from guidelines for reasons ordinarily not relevant only if give written opinion why doing it and appellate judge can rvw; if w/in range, no appeal possible

      B. Purposes of Punishment: US v. Bergman (SDNY, 1976, r140)

      1. Facts- Convicted of defrauding US govt thru nursing home business; could have gotten 5yr and $10K fine and 3 yr and $5K for two counts; gave him 4 mos in prison

      2. Rule-Judge cites letters to ct and his philanthropic work in sentencing; Δ attys say should not punish b/c no need for specific deterrence and should be allowed to deflect his abilities to more charity; he was old and sick à prison far worse; no need to rehabilitate him; retributive argument that he should only be punished for what he deserved; must deter other people; raises question of what should be considered at sentencing…..

      C. 8th Amendment: Harmelin v. Michigan (US SC 1991, r283)

      1. Pre-Harmelin Timeline: (Should cts rvw sentencing?)

        1. Rummel (1980)à three bad checks passed led to life imprisonment b/c three strikes you rout law; ct said not cruel and unusual punishment over dissent by Powell that had 3 factor test

        2. Hutto v. Davis (1982)à 40 yrs and $20K fine for selling 9 oz of marijuana; not cruel and unusual punishment

        3. Salem v. Helm- 7 prior non-violent crimesà life imprisonment; adopted Powell’s test from dissent in Rummel (extreme and grossly disproportional, inter-jurisdictional comparison and intra-jurisdictional comparison)

      2. Facts- Δ sentenced to life w/o parole for selling cocaine. Δ challenges sentence—the highest available in the state—on grounds that it is cruel or unusual.

      3. Rule- Ct is very divided on this; although some room for rvw, courts will be very deferential to legislatures on subjects of what deserves most punishment

      4. Scalia & Rehnquist- no proportionately requirement in Constitution; cruel and unusual only applies to mode of punishment (but this is not a majority opinion; not even plurality)

      5. O’Conner’s plurality- say it does include proportionately but that it is narrow; defer to legislature on dangers of drugs; cites importance of states’ right to decide punishment endowed by federalism; must be based on objective factors: punishment on face must be extreme and grossly disproportionate

      6. Dissent- Wrong to abandon Powell’s test

      VIII. Constitutional Constraints of Def of Crimes

      A. Ban on Status Crimes

      1. Robinson v. California (US SCt, 1962, r929)

        1. Facts- Δ was convicted under statute making it illegal to be “be addicted to the use of narcotics.” Evidence was needle marks and discoloration.

        2. Rule- Punishing for a disease is a clear violation of the 8th and 14th amendments, regardless of how light the sentence is. Raises jurisdictional issues and wrong to punish involuntary behavior (no act req’t).

      2. Powell v. Texas (US SCt, 1968, r931)

        1. Facts- Δ convicted of being drunk in a public place. Δ argued behavior was part of chronic alcoholism and punishing him was punishing him for his status.

        2. Rule- The Court did not agree that this fell under a mere status, because the defendant had taken actions to break the law—so if status leads you to commit a crime, you can still be charged.

      B. Requirement of a Clear Statement

      1. Ex post facto: Keeler v. Superior Court (CA, 1970, r294)

        1. Facts- Δ kicked fetus out of his ex-girlfriend. Charged in murder of fetus. Homicide statute only includes humans.

        2. Rule- 3 problems w/ using statute this way: (1) statutory construction- human being thought by CL to be person born alive (2) CA code says there will be no more CL making by cts (so cannot expand thru interpretation b/c concomitant w/ legislature passing ex post facto prohibition) (3) also federal constitution problem for same ex post facto reason (fair notice, due process and legality)

      2. Void for Vagueness: City of Chicago v. Morales (US SCt 1999, r300)

        1. Facts- Δ was a found loitering in a public place in Chicago with someone who was a suspected gang member (maybe himself.)

        2. Rule- (No majority) Two reasons a statute can be unconstitutionally vague: (1) doesn’t put person on notice that their behavior is criminal, or (2) authorizes or encourages discriminatory or arbitrary enforcement. Statute passes neither test

      3. Void for Vagueness: Papachristou v. City of Jacksonville (US SC 1972, r307)

        1. Facts- Δ arrested for vagrancy, and contested the law as vague and allowed for pre-textual convictions actually based on discrimination.

        2. Rule- Applied to lots of innocent conduct; Impossible to know ahead of time whether were or were not violating statute (fair notice problem); Discriminatory enforcement (related to innocent conduct); Also status crime problem (known to be a certain kind of person).

      4. Terms used in due process, ex post facto and vogue for vagueness cases:

        1. Principle of legality- crim laws must be stated clearly, in advance, by legislature and narrowly construed

        2. Nulla crimen, nulla poena, sine lege- no crime, no punishment w/o law

        3. Two principles often used together; only on criminal law making (more potent weapon of oppression, esp when risk of discriminatory enforcement); should be confined to the publicly accountable branches





      I. Self-Incrimination

      A. Interrogations

      1. Fifth Amendment Rights against self-incrimination:

        1. Elements: Compelled, Witness, Against Self, in a Criminal Case

        2. Witness element implies must be testimony (contents of mind) at issue. Blood or hair samples can be compelled.

        3. Rationales: (1) One of biggest concerns is that inexperienced witness, even if innocent, might contradict themselves in small way and prosecutor can run with that; (2) Individual liberty and personal autonomy; thoughts should not be penetrated by police; (3) in adversarial system need equal playing field

      2. Spano (S.Ct., 1959, P654)

        1. Facts- Δ shot man in candy shop. He was indicted and turned himself in w/ lawyer. Police kept him up all night, used multiple interrogators, denied access to lawyer and had a friend trick him.

        2. Rule- Ct applies a totality of circumstances approach (all aspects of coercion and susceptibility to coercion) to decide if will is overborne; if yes, then throw out confession.

        3. Rationale- when overbear will, resulting product may be unreliability; even when reliable (corroborated), offensive police practices are blight on society; Δ’s own free will basic to idea of human dignity and voluntariness; if police can do outside ctroom what they cannot do in ctroom and then admit that evidence, whole amendment is undermined

      3. Colorado v. Connelly (US SC 1986, b655)

        1. Facts- Δ approached officer and confessed to murder. Police advised him of his rights but he insisted he wanted to show them where. Δ moved to suppress confession b/c he only confessed b/c the voices told him to, i.e. not voluntary.

        2. Rule- Confession admissible b/c 14th amendment cannot be invoked unless there is evidence of coercive state activity. State must prove waiver of Miranda rights only by preponderance of evidence.

        3. Note: Human dignity, free will and voluntariness rationales drop out.

      4. Miranda v Arizona (US SC 1966, b700)


        1. Facts- Δs in cases at bar were in custody and interrogated incommunicado. None of Δs given notice of rights and all Δs gave oral or written confession. No evidence statements coerced.

        2. Rule- Adopts Miranda warnings; must be advised when taken into police custody. Once invoked, interrogation must stop. Must be expressly waived; waiver must be knowing, voluntary and intelligent. Govt bears burden to prove waiver.

        3. Rationales- All police interrogations inherently coercive. Human dignity; govt must procure own evidence; no protection if don’t have same protection in and out of ctroom; take care of evidentiary concerns and compulsion ex ante

        4. *** Note: Now Δs always litigate suppression on both Spano (compelled) and Miranda grounds (nor advised or waived)

      1. What is custody?: Oregon v. Mathiason (US SC, 1977, b743)

        1. Facts- Δ asked to come to station after woman implicated him in burglary. Δ agrees and they meet in cop’s office. Cop falsely tells him they have fingerprint; Δ confesses and leaves station. Moves to suppress b/c had not been Mirandized before confession.

        2. Rule- Δ was not in custody for purposes of Miranda- merely being at station w/ cop does notà custody or coercive envmt. Ct finds impt factors: suspect free to leave at any time, suspect had been told that he was not under arrest, he came voluntarily to station and he did actually leave afterwards

        3. Test: S.Ct. says that custody is determined from view of reasonable person in Δ’s situation (test for custody); always in prison or home; tricks not relevant even if make someone feel they are in custody

        4. Perkins- cellmate paid to get info; although state activity and interrogation, Ct holds not coercive b/c don’t know talking to police

      2. What is interrogation: Rhode Island v. Innis (US SC 1980, b733)

        1. Facts- Murder then robbery of taxicabs by Δ, IDed by driver; Δ arrested and invokes right to counsel; police talk about handicapped children finding gun and Δ tells them where it is

        2. Rule- Not interrogation b/c so unlikely to work. Miranda refers to express questioning and fxnl equivalent, i.e. words or axns (includes presenting evidence or false IDs) that police do or reasonably should know are likely to elicit incriminating response.

      3. Invocation of Silence- Michigan v. Mosley (US SC 1975, Supp.)

        1. Facts- Δ arrested for robbery and invokes right to silence. 2 hrs later, questioned about murders by diff officer in diff room and was read his Miranda warnings again. Δ waives rights and makes incriminating statements.

        2. Rule- S.Ct. says may waive right to silence after it has been initially invoked, so long as police “scrupulously honor” the right to cut off questioning. Consider based on totality of circumstances—time, subject matter, interrogator, place, new warnings—does not say what is necessary and what is sufficient.

        3. Two dissenters rep extremes: White wants to go back to Spano; Brennan says any statements after invoke silence should be excluded.

        4. **Later case: S.Ct says if ambiguous or equivocal invocation, police can continue to talk if clarifying; often clarification sessions involve same stuff that ct said was manipulative or tricky; basically until invocation clear, can keep talking

      4. Invocation of Counsel: Minnick v. Mississippi (US SC 1990, Supp)

        1. Facts- Δ escapes from jail and kills people. FBI agents advised Δ of rights; he asked for atty. Appointed atty met w/ Δ 2-3 times. Sheriff came from MS; Δ testifies his jailers said he had to talk to him. He was advised of rights and then made some very incriminating statements. He was charged w/ first-degree murder in MS.

        2. Rule- When counsel is requested, interrogation must cease, and officials may not reinitiate w/o counsel present, whether or not accused has consulted atty.

        3. OR v. Bradshaw- After Δ has invoked right to counsel, may interrogate only if the Δ re-initiates (want to talk now, not can I have water)

      B. Future of Miranda

      1. Const Status of Prophylactic Rules: Dickerson v. United States (2000, Supp)

        1. Facts- Facts of case unknown. But relied on 18 USC §3501, which requires that statements be “voluntary” to be admissible but does not have warning requirement like Miranda.

        2. Rule- Rehnquist upholds Miranda saying it was constitutional rule b/c overruled state decision. Most effective protection b/c evidentiary probs in totality of the circumstances; Invokes Stare decisis—such a pt of Am Culture.

        3. Rationales: Ease of judicial administration; totality of circumstances in Spano too hard to draw rules from; judicial integrity; easy for cops to follow

      2. Post-1966 Problematic Cases:

        1. Quarles- S.Ct. says that in pub safety situation can forego Miranda; gunmen in supermarket and leaves gun inside and police ask where it is; problem is that there is no pub safety exception to 5th amendment constitutional right; b/c prophylactic rule that sweeps more broadly that actual amendment, so can make exceptions; if Quarles could truly prove that will overborne (gun to head) could suppress

        2. Harris- Δ has Miranda rights violated somehow and govt got statement and did not use it in case in chief; in govt’s rebuttal case responded to Harris’s lies on the stand w/ his un-Mirandized statement; so can offer statements in violation of Miranda for impeachment purposes in govt’s rebuttal case; real 5th amendment says anything that is coerced cannot be used for any purpose; S.Ct. gives same reasoning as fro Quarles

        3. Elstad- Δ confesses in living room in response to questions; arrested and waives at station; say that later statement was product of Un-Mirandized statement; ct says that if 1st statement had been product of real 5th amd’t violation, then would be poisonous fruit; but b/c violation of Miranda, 2nd statement can be used; no poisonous fruit exception to Miranda

      3. Seibert (2004, P 725)

        1. Facts- Δ questioned at statement about burning trailer w/ live boy inside to hide death of handicapped son. She made un-Mirandized statement at station; then she was read rights and repeated statement. Police said they did it deliberately.

        2. Rule- Kennedy- narrow test based on intent of police to end run Miranda; Elstad was mistake or negligence; even if deliberate might be OK if wait along time or warn that previous statement cannot be used; this is treated as law; so this is an exception to Elstad (4-1-4 split)

      4. Patane (2004, P 781)

        1. Facts- Police trying to give Δ rights but Δ doesn’t allow them; Δ later tells them where gun is and they use gun, but not statement against him at trial.

        2. Rule- Fruit of poisonous tree doctrine does not apply to physical evidence from Miranda violation b/c deterrence accomplished; evidence reliable and probative; statement may not be used in ct if will overborne

      5. Search and Seizure

        1. The Scope of 4th Amendment Protection

      6. What is a search?

        1. Katz v. United States (US SC, 1967, b524)

          1. Facts- FBI put bug on top of telephone booth to get bookie; claimed that it was not a search b/c no “physical penetration”;

          2. Rule- The 4th amendment protects people not places(overrules Olmstead and CL focus on trespass); ct says protected when have “reasonable expectation of privacy” that society is willing to recognize; also says that “knowing exposure to the public view” may cancel out reasonable expectation; could have gotten warrant from judge and then it would have been acceptable to bug phone, but will not apply retroactively; impt he paid to use area; want to encourage social communication

          3. Rationales range from typicality (people do think booths private) to normative/ aspirational (want these places private)

        2. Misplaced trust: Hoffa v. United States (US SC, 1966, b514)

          1. Facts- Partin, paid by govt, meets w/ Δ in hotel room and learns he is going to rig jury; reports this to police

          2. Rule-4th amendment does not protect wrongdoer’s misplaced trust if he confesses to somebody they will not reveal it, even if they are govt informants.

          3. Neither typical (people not trustworthy) and normative (don’t want people to keep these secrets)

        3. Buy and bust: Lewis v United States (US SC, 1966, b511)

          1. Facts- Undercover called Δ about buying pot; he went to his house and did buy pot.

          2. Rule- No 4th amendment violation where officer was invited willingly for purposes of drug sale and conducted no search or seizure operations beyond what was originally contemplated by both officer and Δ. Like misplaced trust in Hoffa. Also, impt that house being used for commercial purposes. May not do general search once inside. ** Does not say if could pretend to be pizza man, etc.

          3. ***In both these cases, axn was invited and authorized by Δ; deceit only went to ID

        4. Wired informants- United States v. White (US SC 1971, b530)

          1. Facts- Informer wears earpiece that is broadcastings to police, who later testify as to Δ’s statements to informer.

          2. Rule- S.Ct says more like Hoffa, have no reasonable expectation of privacy that informer will not have bug; no diff b/t informant telling police later and police listening directly; this method of recording is more accurate, complete and reliable. Misplaced trust.

          3. Harlan dissent- worried about spontaneity and discourse in everyday life, as they may have to face a documented record later on; would affect not only criminals but also political or religious dissident or jokester; in normative vs. typicality vwpts on reasonable expectations of privacy, Harlan falls very much on the normative side

          4. Many states have passed law restricting this

        5. Open Fields: Oliver v. United States (US SC, 1984, b278)

          1. Facts- Police came to ∆’s house which had gate and “No Trespassing” sign. Found a field of marijuana over a mile from ∆’s home.

          2. Rule- Powell and majority says that house and curtilage are protected, but not open fields Majority relies on intent of Framers (history and text); use to which land put (society does not care to protect crop-growing, etc); and societal understanding of what is private; bright line rule impt

          3. Harlan dissent- relies on positive law (civilians could not trespass), potential uses of land (private activities), and manifestation of privacy;** none of tests appear again


        1. California v. Greenwood (US SC, 1988, b271)

          1. Facts- Δ’s trash collector turned over garbage to the police, who searched it and got enough evidence of drug dealing to get a warrant.

          2. Rule- Ct argues that animals, snoopers and children could all go thru your garbage and expose it to the public; exposed garbage to pub view by taking chance that it could be revealed to pub view; also misplaced trust in garbage collector

                • Smith- S.Ct. held it is not a search for police to ask telephone co what numbers you have called (also applies to bank records; anytime in commerce reveal info to 3rd party it is misplaced trust to believe that they will not reveal it to the police); extension of Hoffa and “misplaced trust” doctrine

                • Cireolla, b/c planes fly over all property, it is not a search for police to fly over your property (extension of public view doctrine); if public could do it, police may also do it

        2. Touch as a search: Bond v. US

          1. Facts-Border patrol on bus to check for illegal immigrant; squeezed overhead luggage; agent noticed that Δ’s bag had brick-like object; he admitted it was his and consented to search which revealed meth; Δ moved to suppress b/c squeeze was a search

          2. Rule-Ct rejects govt argument that by putting on bus lost expectation to privacy; govt relies on Cirallo and another case Riley (greenhouse observation from helicopter); ct says that diff b/c those were visual rather than tactile observation which is more invasive; analogous to Terry frisk even though not his person; Standard: Δ exhibited actual expectation of privacy (opaque bag, near person) and society recognizes that right to privacy

        3. Sense-enhancing devices: Kyllo v. United States (US SC 2001, b537)

          1. Facts- Fed agents conducted thermal imaging test on Δ’s home to test for heat lamps to grow pot. It was conducted in a few minutes from car across the street. Judge gave warrant to search home based on this, tips and utility bills, and they found 100 plants.

          2. Rule- When govt uses a sense enhancing device that is not in gen pub use to explore details of inside of home that would previously have been unknowable w/o physical intrusion or to the naked eye into constitutionally protected area, the surveillance is a search and unreasonable w/o a warrant.

      1. What is a Seizure?

        1. Mendenhall- J. Stewart had said that seizure happens when reasonable person would know not free to go; so Hodari D. would be seizure when cops yell to stop and drugs would have to be suppressed; ct does not overrule; Scalia says this is just necessary not sufficient condition

        2. Submission before seizure: California v. Hodari D. (US SC, 1991, b84)

          1. Facts- Police spotted Δ in high crime area by car; Δ fled when saw cops; they chased him and saw him throw out a rock; they caught him and find crack rock

          2. Rule- Two ways to be seizedà (1) actually grabbed or (2) stop and submit to police orders when told to stop

          3. Stevens in dissent uses policy argument: Encourages chases and shows of authority (not searches or seizures) when no good evidence to actually stop suspect on chance that people will give up evidence

        3. Drug sweeps: United States v. Drayton (US SC, 2002, b233)

          1. Facts- Police ask for coop in transportation sweeps for drugs on drug routes; police stopped at seats of two men; men gave police consent to search bag and gave consent to search person; found bricks of cocaine on thighs; 2nd man consented and found cocaine

          2. Rule- Ct says that reasonable person would feel free to leave, so not a seizure; law makes clear that free to leaveà no negative consequences, even short of arrest (O’Conner in Bostick)

          3. When does request become demand? Not number of officers or close quarters, but politeness and displays of force; restriction of close quarters b/c on bus not coming from police and so not relevant; analogizes to cops on street asking for help;

          4. Fact diff w/ Bostick- in prior case, w/ essentially same facts, police told Δ he did not have to cooperate

        4. The Exclusionary Rule

      2. Pre-Mapp Cases:

        1. Ratified in 1791 w/ Bill of Rights; for first 100 yrs no on suggested that remedy for its violation required evidentiary conclusion

        2. Boyd in 1886- first time ct suggested remedy; police unlawfully seized papers; ct concluded that they must be suppressed by relying in part on 5th and in part on 4th amendment; papers were sort of compelled witnessing

        3. Weeks 1914- ct announces 4th amendment exclusionary; when fed agents violated amendment, evidence seized could not be seized in fed ct

        4. Wolf in 1949- S.Ct. began incorp Bill of Rights to states thru 14th Amendment; this case incorp 4th Amendment, but ct said although right applies, the remedy does not apply to the states b/c not part of 4th Amendment; it was judicially created

      3. Mapp

        1. Facts- Police bust down door of Δ on a tip she had propaganda; seize papers and deny her access to her lawyer.

        2. Rule- Ct holds that both the 4th Amendment and the exclusionary rule apply to the states.

        3. Rationales:

          1. 1 Exclusionary remedy part and parcel” of right to be free from unreasonable search and seizure; if have right, automatically have a remedy

          2. 2 Govt should not profit from own constitutional wrongdoing, e.g. unreasonable search and seizure; principle of judicial integrity requires ct exclude; quotes Brandeis

          3. 3 In yrs since incorporates 4th amendment have not seen much compliance, so need some remedy; does note necessarily have to exclusion, but no remedy has been offered by states; force compliance w/ right by imposing sanction; -à cts making up remedy (More Miranda like, prophylactic rule); deterrent rationale

          4. 4 Federalism concernsà federal agents subject to exclusionary rule and states notà incentive for feds to hand ill gotten evidence to states and vice versa; silver platter doctrine

        4. Harlan’s Dissent- no textual support; distinguishes from 5th, which is itself an exclusionary rule; ct has no authority; have right not remedy

        1. Exceptions to the Exclusionary Rule

      4. Standing

        1. Rakas v. United States (US SC, 1978, b381)

          1. Facts- Δ were passengers in car that was pulled over b/c it matched the description of a car used in an armed robbery. The driver was the owner of the car, in which shells and a gun were found. Δs never claimed to own the car, the gun or the shells.

          2. Rule- In cases where cops violate 4th amd’t, only actual individual whose rights are violated can invoke exclusionary rule at trial. Common issue where evidence left in someone else’s house

          3. Rule from Rakas: sin qua non of reasonable expectation of privacy in car or home is ownership (b/c 4th amendment says “their persons, houses, papers and effects); when one has power to exclude people from or dominion rights over premises (why ct says overrule rationale of Jones but would rule in that case the same way)

          4. Target thy- Ct rejects this- anyone at whom search is targeted can invoke rule.

          5. Jones- legitimately on the premises stnd overruled in Rakas; later rejects possession=standing for possessory offenses component as well

          6. Rationale: Personal right with remedy; consonant w/ standing b/c it is a personal right, the remedy is only available to the person whose rights were violated; almost like remedy in tort axn

          7. Inconsistent rationales: deterrent and judicial integrity; in reality, ct returns to deterrence rationale in later cases

        2. Minnesota v. Olson (US SC, 1990, b391)

          1. Facts- Δ was going to be house guest overnight; unlike Jones, Δ does not have key and owners are living there as well

          2. Rule- Social overnight houseguests have legitimate expectation of privacy that society recognizes and, thus, standing.

          3. Rationale-White says that Δ has standing b/c of social customs; normative view of reasonable expectations of privacy; we are a mobile society that stays in people’s homes all the time and we all expect to be private in those homes

        3. Minnesota v. Carter (US SC, 1998, b397)

          1. Facts- Policeman observed Δs bagging cocaine in apt of Thompson thru blinds; followed Δs as they left apt, pulled them over and found cocaine and a gun. Δs were out-of-state visitors using the apt in return for giving Thompson cocaine.

          2. Rule- Δs had no legitimate expectation of privacy in Thompson’s apt b/c they were there for short pd, for a business transaction, had no long-term connection w/ the place or the owner. So closer to Rakas than Olsen.

          3. Ct draws distinction b/t them and overnight guest and b/t commercial and residential visits to other people’s homes (no social aspect to their presence) Daytime social guest? Likely there would be 5 votes for daytime social guests; Kennedy’s concurring opinion, plus three dissenters and Breyer probably too

          4. It seems that ownership interest and quasi-interest are more impt in car; while rel to people are more impt in homes;

          5. Rationale: Rehnquist uses standing w/o relying on personal right rationale; instead optimal deterrence rule

        4. Impt questions:

          1. Ownership?

          2. Legitimately there?

          3. Power to exclude or dominion rights?

          4. Social or commercial?

          5. Connection to place or person?

      5. Fruit of the Poisonous Tree

        1. Wong Sun

          1. Facts- Police raided house of Hom Way, whom they had been surveying, and found heroine, which Hom Way said he bought at a Laundromat from “Blackie Toy.” Police went to Laundromat, where Toy came to door. Police had no reason to believe Toy was Blackie Toy. Undercover agent got him to open door, then Ided himself and chased Toy into his residence. No drugs were found on the premises. Toy denied giving drugs to Hom Way but, while in bedroom, gave them the address of a place where drugs were sold and where he had used heroine the night before. Police went to Johnny Yee’s house, where he surrendered heroine to them and which he said he got from a man named “Sea Dog.” Toy later IDed Wong Sun as Sea Dog. They arrested Wong Sun after entering his apt, but found no drugs. Toy, Yee and Sun were all charged w/ narcotics offenses and released pending trial. Wong Sun was later interrogated at station and he was asked to give statement. Yee made statement at police station after arrested before arraigned. Yee never testified at trial.





      B. Heroin



      A. Bedroom Statement


      C. Later Statement

      Hom Way

      Wong Sun


      D. Later Statement














      Against Toy, Court says A and B are fruits (can’t be used) but doesn’t reach C.

      i. (A) Bedroom statements: Government argues that Toy voluntarily made bedroom statements. Court rejects this—points to proximity in time and place between unlawful entry and bedroom statements.

      ii. (B) Heroin found in Yee’s home: Court says entry into Yee’s home would not have occurred without illegal entry into Toy’s home and Toy’s subsequent statements which were fruits.

      Against Wong Sun, Court says B and D are not fruits (can be used against Wong Sun).

      i. (D) Wong Sun’s later statement: Court says “taint” can dissipate. (1) Wong Sun had been released and returned to make statement. More a sense of voluntary action on part of Wong Sun. (2) Also a dissipation over time—Wong Sun returned several days later.

      ii. (B) Heroin found in Yee’s home: Illegality regarding Wong Sun not “but for” cause of illegality regarding Yee. So Wong Sun has no standing to object to invasion of Toy’s and Yee’s privacy.


          1. Rule- Taint dissipated enough to allow in Wong Sun’s statement b/c: Voluntariness of statements (though not sufficiently voluntary in Toy’s case) and passage of time (Toy still in bedroom vs. Wong several days later).

        1. Effects of Miranda Compliance: Brown v. Illinois (US SC, 1963, b405)

          1. Brennan majority said compliance w/ Miranda not enough to purge taint from 4th am’t violation by itself

          2. Three main factors: Compliance w/ Miranda is one factor (really folds into voluntariness prong) along w/ how much time since primary illegality and how voluntary statement was; one final factor ct mentions is intent of policeà relates to deterrent rationale of exclusion; ct calls this flagrancy of violation or bad faith of police (deter more when bad faith and flagrancy- mens rea relevant)

        2. Types of fruit: Physical evidence, statements, witnesses (voluntariness of turning on person can dissipate), line ups, photos, warrants, consent to search after illegal seizure and IDs (not ctroom ids b/c part of trial)

      1. Inevitable Discovery/ Independent Source

        1. Inevitable Discovery: Nix v. Williams (US SCt, 1984, b372)

          1. Facts- Search out looking for body and were close to finding it when Δ told police where it was after cop gave ”Christian burial” speech. Δ already had counsel and had invoked right to silence. In 2nd trial, Δ moves to suppress body as fruit of illegal interrogation.

          2. Rule- S.Ct says know would have been inevitably found b/c police testimony, knew what parameters were and police only 2.5 miles away; higher ct accepts lower ct’s finding of fact that would have been found. Condition of body in freezing weather also impt. C

        2. Independent Source- If two investigations, one legal and one illegal, and legal team independently finds same evidence, then do not suppress. Govt legally got access to evidence. Inevitable discoveryà hypo indpndt source doctrine

        3. Indpndnt Source: Murray v. US (S.Ct, 1981)- .Ct. found OK when police illegally entered warehouse to see if there were drugs, there were and then they got warrant w/o mentioning illegal entry. They got warrant and collected drugs. US S.Ct. said do not need two teams.

        4. Good Faith-

          1. Nix- Ct rejects good faith rq’t.

            1. Justice Brennan worried that no deterrent to violating 4th amendment when setting process in motion is enough; send officer to courthouse and then bust in; perverse incentive system

            2. Majority says that it is rare that police officer would have perverse incentive (predict that there would be inevitable discovery) AND puts prosecution in worse situation than would have been; this is not goal of remedy; put them where they would have been if illegal search did not happen, not worse off; social costs too high to apply any stricter a remedial scheme (want to put reliable evidence in front of juries)

            3. Mens rea- purposeful or reckless in MPC sense as to violation of Constitution; sometimes negligent in that they should have known but did not) matters, like in Williams dissent

            4. Ct looks evidence and wks backwards, not deterring everything that could be deterred at cost of less law enforcement

          2. Brown v. Illinois- flagrancy goes to mens rea of officer and is factor in dissipation of taint

      2. Impeachment

        1. United States v. Havens (US SC, 1980, Supp)

          1. Facts- Δ’s associate had a shirt filled with cocaine. In an illegal search of the Δ’s bag, found a cut-up shirt used to make pockets holding drugs. Δ testified that he was not involved.

          2. Rule- Govt may not use illegally seized evidence in case-in chief, but may use in rebuttal to impeach Δ.

          3. Rationale- only want optimal deterrence; want reliable evidence in front of jury. Exclusionary rule is silver bullet that permanently removes evidence; can’t say it wouldn’t have been found anyway.

          4. Brennan’s dissent- cost-benefit analysis not appropriate when talking about Constitutional right. Cf. Mapp “part and parcel” argument. Says that so-called “cost of suppressing illegal evidence” is same as cost if illegal search never happened, so really just objecting to 4th amendment; there would be no cost b/c never would have existed if there was not illegal search; Cost is not cost of rule, but cost of compliance w/ 4th amendment, which we presumably want.

        2. James (1990)

          1. Facts- Δ’s witness lies about color of his hair at time of crime.

          2. Rule-Brennan mjty says that balancing approach used in previous cases should not be expanded to admit illegal evidence to impeach witness. Brennan uses cost-benefit analysis he derided in Havens.

      3. Good Faith

        1. United States v. Leon (US SC, 1984, b354)

          1. Facts-

          2. Rule- There is a good faith exception when there is a warrant and a police officer relies in good faith on that judicially issued warrant. Here, judge was wrong about whether or not there was probable cause.

          3. Exception: (1) police officers reliance on warrant was not objectively reasonable, e.g. too little evidence to make inference there was illegal activity, or when govt dishonest or reckless w/ regard to presenting evidence. (Language of mens rea; must be MPC intentional, knowing or reckless) (2) Warrant facially invalid. (3) Also if magistrate not detached or neutral.

          4. Practical significance: Changes quantum of probable cause needed. If you are reasonably close to reasonable grounds then should issue warrant.

        2. Arizona v. Evans (US SC, 1995, Supp)

          1. Facts- Δ pulled over on old warrant; found pot. Court clerk had made mistake in not yet removing his warrant from the computer system.

          2. Rule- Exclusionary rule does not apply where police relied on warrant that was still in system b/c ct’s clerical error. Majority says that dissent’s concerns are speculative. Can clearly see costs, and will not use exclusionary rule until have evidence that institutions are misusing the warrant process.

          3. Brennan’s dissent- Makes institutional deterrence and perverse incentive argument.

        3. Other exceptions: (optimal deterrence and special position of police)

          1. Stone v. Powell (1976)- habeus corpus exception; cannot raise exclusionary issue on federal habeus; too much deterrence

          2. Janis (1976)- no exclusionary rule in civil case; b/c usually used in crim cases; even when plaintiff is govt on for example tax fraud charges; same rationale—already enough deterrence

          3. Calandra (1974)- does not apply in grand jury hearing; again b/c enough deterrence

          4. Krull (1987)- when police rely on statute that is later declared unconstitutional, cannot apply exclusionary rule; again, would not deter police

        4. Probable Cause and Warrant Requirements

      4. Competing interpretations of 4th amendment: What makes a search or seizure reasonable? Rel b/t two clauses….

        1. Strict warrant rq’t: Ct often says that warrants are what make searches and seizures reasonable w/ a few exceptions

        2. Totality of the circumstances and balancing Other view is that question is far more broad and text does not imply that must have warrant; point was to limit warrants b/c special form of tyranny

      5. Payton v. New York (US SC, 1980, b88)

        1. Facts- Case 1: Police watched Δ Payton for two days and determined he had killed gas station mngr. Went to his home w/o warrant, saw music and lights. They used a crowbar to enter home, but no one there; shell casing in plain view seized and used in his murder trial. Case 2: Riddick arrested for two armed robberies. They went to his home w/o warrant; after they knocked, young son opened the door and his father was in bed. They entered the house and arrested him. Before he dressed, they opened a chest and found drugs. He was convicted on narcotics charges.

        2. Rule- Arrests w/o warrants are per se unreasonable. Ct says must have warrant to arrest people in their homes. Relies on History (unclear at Framing); Evolution of Modern Consensus (24 states and increasing agree); Analogy to Home Search (should have same rights in home as belongings do.)

        3. Normative debate w/ dissent: White in dissent says enough restrictions at CL (felony, knock, announce, daytime, and stringent probable cause they committed crime and that they are home requirement); White says less invasive b/c can come to door and nighttime can be more embarrassing; felony requirement is part of cost-benefit analysis (intrusion ok for serious crime);

        4. Debate b/t Justices is cost-benefit vs. general reasonableness debate

          1. Liberal justices say that warrants make reasonable b/c want bright line rule, before the fact to prevent fudging; use rules when do not trust decision maker; constrains discretion of officers

          2. Conservative justices say multi-factor balancing test reasonable b/c allows police to consider many more things; but requires more trust of police


      3rd pty home
      Warrant (exceptions)
      Probable Cause (not warrant)
      probable cause; cars diff b/c mobile; evidence could leave jurisdiction; cars not as private as homes
      Standing=Warrant, No Standing= Probable Cause
      Warrant (exceptions)
      Warrant (but can search incident to arrest)
      Probable Cause
      Warrant (to protect the third person, but if you do not have standing they may search your person and possessions on probable cause)


      • To arrest B at A’s home???

      • S.Ct. says need search warrant to search for person to arrest in third party’s house. But this is violation of owner’s home. Could object only if had standing in privacy of owner’s home

      • **Warrant impt b/c particularity requirement determines scope of search. Cannot search for grand pianos in the closet, but if looking for drugs can cut open sofa cushions.

      1. Challenges to Liberal Idea: Atwater

        1. Facts- TX law allows arrest w/o warrant for misdemeanor violation of seatbelt laws. Δ pulled over b/c neither she nor her children were wearing seatbelts. She told the officer her purse had been stolen and so did not have license. Officer arrested her and brought her to jail, where she stayed until she was released on bond. She plead to the seatbelt charge and was fined $50.

        2. Rule-Probable cause to believe soccer mom committed vehicle offense means that they can do custodial arrest; no small offense or non-violent exception; Stevens says he does not believe this is a big problem

      2. Challenges to Liberal Idea: Whren

        1. Facts- Two cops in plainclothes and unmarked car see dark SUV stop at intersection for more than 20 secs and then quickly turn right and speed off. Cops pull car over and observe large bags of crack. Δs moved for suppression on grounds that stop illegal and its reason (to give driver warning) was pretextual.

        2. Rule- B/c there was probable cause to believe traffic violation committed, the stop was legal and the evidence rightly admitted.

        3. Rejects good faith req’t: No probable cause to justify stop for drug offense; ct says that subj intent of officer does not matter; even when cops are vice squad; again this is the flip side of mens rea (opposite from Leon and Brown); says may violate 14th amendment Equal Protection b/c men were black, but does not violate 4th amendment;

        4. Liberals worried about pretext and leeway for discrimination

        1. Exceptions to the Probable Cause and Warrant Requirements

      3. Stop and Frisk

        1. Terry v. Ohio (US SC, 1968, b143)

          1. Facts- Police officer stopped ∆s who kept walking along street because he believed they were casing a store for a robbery. Police officer did a “pat down” of outer clothing for weapons.

          2. Rule- When police have reasonable and articulable suspicion that a person has committed a crime and is armed and dangerous they may stop and frisk him, respectively.

          3. ****Says at P 420- “good faith on the part of the arresting officer is not enough.” If subj good faith enoughà protections of the 4th amendment would evaporate

        2. MI v. Long- if during course of stop of car, and during stop become suspicious person is armed and dangerous, then can frisk a car, including glove box

        3. Dunaway v. New York (US SC, 1979, b494)

          1. Facts- Δ picked up after jail inmate awaiting trial implicated him in murder of pizza shop owner during attempted burglary. Police admit they had no probable cause to arrest him, but brought him to station for custodial interrogation where he made incriminating drawings and statements. He was given Miranda warnings and waived counsel.

          2. Rule- Bringing Δ to station for interrogation was basically an arrest; w/o prob cause, must suppress statement.

        4. Hayes v. Florida (US SC, 1985, b480)

          1. Facts- At rape scene, police found herringbone shoe prints and fingerprints. They rounded up 30-40 suspects and settled on Δ as principal. They went to his home and told him he either had to come to station to be fingerprinted or would be arrested. He said no, but on threat of arrest consented. Police seized sneakers in plain view. Δ’s shoes and print matched.

          2. Rule- Absent probable cause or judicial authorization a suspect may not be involuntarily removed from his home for investigative purposes. Does not matter that fingerprinting not so intrusive. Once removed from home need 4th am’dt protection even if Miranda given.

        5. Illinois v. Wardlow (US SC, 2000, b440)

          1. Facts- Officers saw Δ standing near building w/ opaque bag in heavy drug area. When they looked his way, he fled and they caught him. They conducted a protective pat down and found a gun in the bag.

          2. Rule- Police had reasonable and articulable suspicion to suspect Δ of crim activity b/c flight and location, and thus frisk was lawful.

      4. Consent

        1. Voluntariness Test: Schneckloth v. Bustamonte (US SC, 1973, b213)

          1. Facts- Δ charged w/ possessing a check w/ intent to defraud and moved to suppress check. Officer stopped men and asked for ID. Only one man had it and he said car was his brother’s; consented to search and even helped by opening trunk and glove box. In trunk, police found checks stolen from a car wash.

          2. Rule- The State need not prove that Δ knew he could refuse to consent. State only need prove consent was voluntary, which is to be evaluated by cts on the totality of the circumstances.

          3. Analogous to totality of circumstances, voluntariness test in Spano and consent in rape law (what makes consent voluntary)

          4. Knowledge of ability to say no not dispositive. One factor to be considered in totality of circumstances inquiry.

        2. Apparent Authority: Illinois v. Rodriguez (US SC, 1990, b246)

          1. Facts- Fischer told police she had been beaten by Δ and traveled w/ them to his apt to open apt and let them arrest him. She referred to apt and “theirs.” She opened door and cops saw in plain view cocaine; they arrested Δ and seized drugs. Fischer had moved out wks earlier and had no real authority to consent.

          2. Rule- Need not be actual authority, merely good faith belief that there was authority to consent

          3. ***Authority to consent same thing as standing

          4. Unclear if means only need reasonable belief that consent was voluntary

      5. Search Incident to Arrest

        1. Wingspan Search: Chimel v. California (US SC, 1969, b114)

          1. Facts-Police came to Δ’s house to arrest him and then searched entire home, finding evidence.

          2. Rule- When arrest someone in a home can search only the person’s “wingspan”—grabbable area around them; to protect officers and prevent evidence destruction.

        2. Search of Person: U.S. v. Robinson (US SC, 1973, b149)

          1. Facts- Δ was pulled over and arrested for operating car w/o a permit; this arrest was based on probable cause. Officer then searched Δ by patting him down; he felt unidentifiable object in pocket and pulled out cigarette packet filled w/ heroine.

          2. Rule- Police may conduct full search of person and effects when arrested; this is automatic; need no prob cause or suspicion to believe they have evidence or weapons.

        3. Protective Sweep: Maryland v. Buie (US Sc, 1990, b126)

          1. Facts- Police had warrant to arrest Δ and his accomplice in armed robbery of pizza place. They confirmed Δ was home an officer went to basement stairs to order anyone to come out. Δ emerged and was handcuffed; another officer went in basement to see if anyone else there. Running suit was used at trial as evidence.

          2. Rule- Protective sweep allowed when searching officer had reasonable belief based on specific and articulable facts w/ rational inferences that reasonable warranted officer in believing the area swept harbored an individual dangerous to officers. Duration may be no longer than is needed to dispense w/ suspicion.

      6. Exigent Circumstances and Plain View

        1. Warden v. Hayden (US SC, 1967, b192)

          1. Facts- Cab Co robbed; cabs followed Δ to home and reported what he was wearing. Police were allowed entry to house by woman. They searched home and found Δ pretending to be asleep. Another officer found a gun in the toilet tank, while another found clothes fitting the description in the washing machine. An ammo clip was found in the mattress.

          2. Rule- Evidence seized under exigent circumstances is admissible, regardless of whether it was seized w/ intent to use as evidence. “Impracticable” to require warrant; only need prob cause.

        2. Arizona v. Hicks (US SC, 1987, b2530

          1. Facts- Police go to apt where bullet came thru ceiling; police find ski masks, shotguns, etc; police sees stereos and picks up stereo to call in serial numbers; police seize stereos, b/c stolen.

          2. Rule- Turning stereo was not merely a “cursory inspection,” but a search. Scalia says question is not were the cops reasonable (answer would be yes); issue is: was it a search and if there was a search, was there prob cause?

          3. Analogs to plain view:

            1. S.Ct. in diff Dickerson: held when cop squeezed glassine bag in Terry frisk in pocketà felt rockà said had prob cause to pull it out and arrest him; there is “plain feel,” but here manipulating bag

            2. Ct has allowed plain feel when felt bottles used to bottle PCP

            3. Also plain smell for alcohol or drugs in car

            4. Plain taste- cops taste powders, etc. on streets

      7. Special Needs

        1. TLO v. New Jersey (US SC, 1985, b290)

          1. Facts- Teacher caught Δ smoking in bathroom and brought her to principal’s office, where she denied smoking. He grabbed her purse and pulled out a pack out cigarettes; he spotted rollin papers and searched some more, finding pot, baggies and a list of people, who owed her money.

          2. Rule- The prohibition on unreasonable searches and seizures applies to pub school officials but should be based on reasonableness under totality of the circumstances (not warrant or prob cause.) Adopts two pt test: (1) whether axn was justifiable at its inception and (2) was reasonably related in scope to circumstances that justified interference in the first place and not excessively intrusive.

          3. Justifiability bolstered by indiv suspicion. Ct said that must be reasonable and not excessive in light of age and sex of student and nature of infraction

        2. Skinner v. Railway Labor Executives Association (US SCt, 1989, b304)

          1. Facts- RR wkrs challenge the constitutionality of blood, breath and urine tests after RR accidents; administered to all w/o indiv suspicion.


          1. Rule- Balance govt interest against invasiveness of searchà govt interest in pub safety outweighs. Method of testing impt b/c automatic and non-discriminatory. Do not require indiv suspicion.

        1. Camara v. Municipal Court of San Francisco (US SC, 1967, b317)

          1. Facts- Δ refused to allow Health inspectors in to investigate landlord’s statement he was illegally using back part of structure as a residence. They arrested him and he was release on bail.

          2. Rule- Appellant did not have to allow in inspectors w/o warrant. Area inspections for non-criminal purposes must be based on a warrant, but that warrant need not be based on prob cause for each indiv dwelling. White says if the govt regs are reasonable expressions of a govt interest, then there is prob cause; moves away from particularized, indiv suspicion def of prob cause

        2. City of Indianapolis v. Edmond (US SC, 2000, b474)

          1. Facts- Police were stopping vehicle in random sequence and checking for impairment and w/ drug dog for narcotics. City informed officers they could not search w/o consent or some suspicion and could not hold people for longer than 5 min.

          2. Rule- Ct gives test when can go into free-wheeling reasonableness mode—Whether this is ordinary crim law enforcement or involves “special needs outside the ordinary needs of law enforcement.” (from Blackmun T.L.O. concurrence.) Here no overriding safety concern; only meant to catch people w/ drugs.



























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