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Criminal Exam Attack Outline

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This is an extract of our Criminal Exam Attack Outline document, which we sell as part of our Criminal Law Outlines collection written by the top tier of Harvard Law School students.

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Table of Contents
The Basics................................................................................................................................1
Why Punish?......................................................................................................................................1
Actus Reus.........................................................................................................................................1
Omissions...........................................................................................................................................2
Mens Rea...........................................................................................................................................2
Mistake of Fact..................................................................................................................................3
Strict Liability.....................................................................................................................................4
Ignorance of the Law..........................................................................................................................4
Reasonable Reliance..........................................................................................................................4
Sufficient Notice.................................................................................................................................5
Causation...........................................................................................................................................5

Homicide.................................................................................................................................7
Murder...............................................................................................................................................7
Mitigation to Voluntary Manslaughter- Intent + Provocation............................................................7
Depraved Heart (Reckless) Murder- No Intent + Extreme Recklessness.............................................9
Involuntary Manslaughter, Manslaughter, Negligent Homicide- No Intent.......................................9
Felony Murder.................................................................................................................................10

Rape......................................................................................................................................12
Actus Reus........................................................................................................................................12
Mens Rea.........................................................................................................................................13
Statutory Rape.................................................................................................................................14

Attempt.................................................................................................................................14
Aiding and Abetting (Accomplice Liability, Complicity)...........................................................16
Conspiracy.............................................................................................................................17
Conspiracy as Accessorial Liability and Scope...................................................................................19
Duration of Conspiracy.....................................................................................................................20
Scope of Conspiracy— Single or Multiple, Breadth of Objectives and Participants...........................21

Self-defense...........................................................................................................................22
Battered women..................................................................................................................................23
Duty to Retreat................................................................................................................................24
Law Enforcement.............................................................................................................................25

Necessity...............................................................................................................................25
Duress...................................................................................................................................26
Insanity.................................................................................................................................27
Basics...............................................................................................................................................27
Rules................................................................................................................................................28

Diminished Capacity and Diminished Responsibility..............................................................29
Legality..................................................................................................................................30
Prosecutorial Discretion.........................................................................................................31
Plea Bargaining......................................................................................................................32
Sentencing.............................................................................................................................33 1

The Basics
Why Punish?



Retributive

Positive retributivism- moral guilt sets lower limit

Negative retributivism- moral guilt sets upper limit

Fair Play argument- extract debt incurred by violating rules

Social cohesion argument- expressive function of punishment
Utilitarian

Punishment allowed only when it prevents greater evil
Mixed theory

Moral guilt and social benefit are both necessary but not sufficient conditions
Purposes of penal codes

MPC §1.02(2)- prevent commission of offenses, promote correction and rehabilitation, safeguard offenders against excessive or arbitrary punishment

NY- deter, rehabilitate, incapacitate

CA- punishment, which is best achieved by proportionality and uniformity

Actus Reus



MPC §2.01(1)- conduct must include a voluntary act

Not voluntary-
 reflex or convulsion
 bodily movement during unconsciousness or sleep
 conduct under hypnosis [few states adopted]
 bodily movement otherwise not product of effort of actor

Maybe voluntary- unremembered act, uncontrollable impulse, unintended, or unforeseen consequences
Martin- imputes voluntary element, not met by being arrested and carried to highway

Low- distinguishes Martin because opportunity to surrender drugs before jail
 Eaton- follows Martin because failure to impute voluntariness leads to absurdity

Macias- illegal immigrant denied entry to Canada, return to US not voluntary
 Abriz-Ambriz- conviction upheld since never legally in Canada
Newton- acts during shock-induced unconsciousness involuntary
Decina- knowledge of epilepsy means voluntary act when seized while driving
Status crimes

City of LA- can't prohibit sitting, lying down, or sleeping - criminalizes humanity

Robinson- can't criminalize status of addiction
 Powell- limits Robinson, denies alcoholism defense to being drunk in public

Harper- punishing alcoholics for public intoxication unconstitutional

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Kellogg- public drunkenness law applied to homeless alcoholics constitutional

Sleepwalking

Cogdon, Parks- sleepwalking is involuntary, rather than insanity

Luedecke- medical study proved involuntary act during sexomnia

Omissions





MPC §2.01(3)- unless penal statute requires particular action, criminal liability for omission arises only when law of torts or some other law imposes duty to act
Good Samaritan and misprision laws- require action or reporting

Martinez- omission liability for other crime based on duty created by GS law
Jones- omission liability only where statute imposes, special relation, contractual duty, or voluntarily assumes care and secludes victim
Cardwell- must take steps reasonably calculated to fulfill duty of care
Special relationships

Parent-child
 Pope- child abuse requires parental relation and caused abuse
 Bartley- parent has duty to adult child who is dependent due to disability
 Gargus- child has duty to care for elderly parent after assuming responsibility
 Carroll- stepmother owed duty of care
 Miranda- parental liability not extended case-by-case beyond legal categories

Beardsley- no legal duty towards partner in adulterous affair

Pestinkas- liability after agreeing to feed elderly man, knowing no other way to eat
One who creates another's peril

Levesque- started fire then failed to report, convicted of manslaughter of firefighters

Evans- supplied heroin then failed to call for help when victim overdosed

Lisa- Restatement of Torts insufficient of notice of duty for omission liability
MPC §2.01(4)- possession is an act if knowingly received or omission if aware of control for time sufficient to terminate possession
Possession

Bradshaw- knowledge not inherent in possession; mens rea burden shifted to D
o Ramirez-Memije- sufficient to know possession of skimming device but not contents

Mens Rea

MPC §2.02(1)- mens rea required for each material element of the offense

MPC §1.13(9)-(10)- defines material element
MPC §2.02(2)- four kinds of culpability

Purpose-
 conscious object is to engage in conduct or cause result
 aware of attendant circumstances or believes or hopes they exist

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o Knowledge-
 aware of nature of conduct or that attendant circumstances exist;
 aware of practical certainty of result

Recklessness-
 Conscious disregard of substantial and unjustifiable risk that material element exists or will result from conduct.
 Risk must be gross deviation from law-abiding person in actor's situation,
given nature and purpose of conduct and circumstances known to him.
o Negligence-
 Should have been aware of substantial and unjustifiable risk that material element exists or will result from conduct.
 Must be gross deviation from standard of care of reasonable person in actor's situation.
MPC §2.02(3)- where the statute is silent as to culpability, the default is that it requires recklessly, knowingly, or purposely. Negligence is insufficient.
MPC §2.02(4)- where the statute lists a culpability requirement for one element but not others, it is assumed that that level of requirement applies to all elements.
Common law — Culpability

Cunningham- malice means intent/purpose or recklessness

Gray- where statute does not define common-law term, presume legislature adopted common-law definition, unless evidence otherwise

Santillanes- [majority] negligence in criminal statute = criminal negligence req'd

Hazelwood- [minority] negligence in criminal statute = ordinary negligence req'd

Elonis- where statute is silent, impute only mens rea necessary to separate wrongful from otherwise innocent conduct (qualified endorsement of moral wrong theory)
Presumptions- constitutional only when we have confidence it will always be true

Francis- mandatory presumption of intending act's natural consequences unconstitutional

Barnes- permissive inferences allowed when more likely true than not in given case;
jury can infer knowledge that property is stolen from unexplained possession

Mistake of Fact


MPC §2.04

Mistake is defense if it negatives required mens rea.
o Defense unavailable if D would have been guilty of another offense if situation were as D supposed, but liability is reduced to what it would have been had situation been as supposed.
Cordoba-Hincapie- accords with MPC, allowing mistake of fact defense
Moral wrong theory- no imputed mens rea requirement for attendant circumstance when the act is morally wrong in itself

Lesser wrong theory- no imputed mens rea when act constitutes a lesser crime, as known by defendant (especially minors, sex, drugs)
Prince- moral wrong theory to reject mistake of fact defense

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Benniefield- lesser crime theory to reject mistake of fact defense; prosecution must prove knowledge of drug possession but not of proximity to school

Strict Liability





Definition- exists when liability is imposed without any demonstrated culpability, not even negligence, with respect to at least one material element of the offense
Balint- no imputed mens rea requirement for regulatory offenses- selling drugs

Exercise of police power
Dotterweich- no imputed mens rea requirement for regulatory offenses- labeling drugs

Balance hardships
Morissette- imputes mens rea requirement for codified common law offense of larceny

Public welfare offense
Staples- imputes mens rea requirement for gun offenses- insufficient notice

Freed- no imputed mens rea requirement for grenades
X-Citement- mens rea requirement carries through ambiguous statute which criminalizes otherwise innocent conduct, even if not most grammatical reading

Ignorance of the Law




MPC §2.02(9)- no mistake defense, since no mens rea required as to whether conduct constitutes an offense, or existence, meaning, application of law, unless law specifies otherwise

Accords with Marerro, International Minerals

Discords with Liparota, Cheek
MPC §2.04(1)- ignorance can be defense if it negates mens rea required to establish a material element

Accords with Varszegi, Smith
Marerro- mistake of law unavailable unless government affirmatively misleads
International Minerals- no proof req'd that D knew of existence and meaning of regulation where statute prohibited "knowingly violating" regulation.
o Overholt- under Int'l Minerals, req'd that D knew he was doing something unlawful,
but not req'd to prove D knew of specific regulatory law
Liparota- red's proof that D knew of regulation, where it would otherwise criminalize apparently innocent conduct
Cheek- specific intent to violate required for federal criminal tax offenses

Inapplicability claim granted, but constitutional invalidity claim denied

Ansaldi- Cheek exception does not apply to drug distribution statute
Heien- police allowed to make objectively reasonable mistake of law in conducting seizure
Varszegi, Smith- unreasonable but good-faith belief negates mens rea for material element

Reasonable Reliance

MPC §2.04(3)- defense for reasonable reliance on official interpretation

D req'd to prove by preponderance of evidence

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Hopkins- [traditional] D relied on erroneous official advice that sign okay, conviction upheld
Raley- can rely on official statements, but not off-the-cuff comments
Appellate review- D must act in reasonable reliance. Rule isn't whatever the court last said.
If it seems to be the last word, you're good. If it seems to be in play, you're not good.
o Albertini- D can act in reasonable reliance, even if favorable decision is being appealed
 Rodgers- no reasonable reliance on latest opinion in jurisdiction when circuit split makes appellate review reasonable foreseeable
 Qualls- on basis of Rodgers, overruled Albertini and applies subsequent appellate decision retroactively

Sufficient Notice



MPC §2.04(3)- [majority] Statute must be either known to D or published.
o D req'd to prove by preponderance of evidence
Lambert- actual or probably knowledge of duty req'd for crime of omission
Bryant- distinguishes lambert to uphold sex offender registration requirement
Leavitt- conviction reversed where judge misled D to reasonably believe firearm restriction lasted only one year

Wilson- no entrapment by omission when judge fails to tell D restraining order means no firearms
Esop- conviction sustained over objection that sodomy was not a crime in D's native land

Causation

MPC §2.03- req's but-for cause, AND
o No causation for purpose/knowledge if result is outside of purpose or contemplation, or for recklessness/negligence if result outside of risk; UNLESS
 overridden by doctrine of transferred intent, OR
 difference is the same kind of injury or not too remote and accidental to have a just bearing on actor's liability

No causation for strict liability if actual result is not probable consequence
Common law- req's foreseeable and direct, but-for causation

Voluntary human acts break chain of cause unless presumption of free will rebutted
 See suicide

Omissions treated as legal cause where there is a duty to act, since omission does not interrupt forces at work and allows avoidable harm to occur
But-for

Montoya- conviction reversed since prosecution did not prove beyond reasonable doubt that V would have survived but-for D's acts
 Muro- proving possibility of survival insufficient for but-for causation

Burrage- traditional but-for req's independently sufficient cause; substantial or contributing factor not enough

Hatfield- many but-for causes depending on level of generality, but focus on thing we want to eliminate.

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Foreseeable and direct

Acosta- objective standard of foreseeability in helicopter crash following car chase;
exclude highly extraordinary results; appreciable probability that pilots act recklessly
 Brady- reasonably foreseeable for pilots to crash after D recklessly started forest fire

Arzon- sufficiently foreseeable and direct where D started one fire and second fire also present
 Kibbe- ultimate harm needn't be intended; sufficient if foreseen
 Stewart- obscure or merely probably connection is not enough

Warner-Lambert- need more than but-for cause; req's foreseeing specific causal mechanism; narrower than civil liability
 Later limited to commercial or manufacturing contexts
Medical malpractice

Cheshire- sufficient if wound is operating and substantial at time of death, even if another cause operating

Shabazz- wounds would have been fatal in absence of any medical treatment, and malpractice was at most a contributing factor

Main- failure to get medical attention was not unlikely hazard
Suicide

MPC §210.5(1)- not guilty of murder for successfully urging or assisting, so long as deceased was mentally responsible and not coerced or deceived
 Can be guilty of lesser degree of homicide for providing to intoxicated or despondent person

Stephenson- murder when V was irresponsible at time of suicide, and D caused irresponsibility
 Preslar- no causation when V decided to sleep in cold after arguing with D
 Valdade- murder when D raped V who then killed self

Campbell- no causation where D provided gun to suicidal person

Sexson- D convicted after holding rifle while wife pulled trigger to kill self

Kevorkian- distinction between active participation in suicide and involvement in events leading up to suicide; death must be direct and natural result of defendant's act

Bailey- I am the hoss that caused the loss.
Vulnerable victim- take your victim as you find them
Transferred intent- intent follows causation, regardless of unforeseeable victim or degree of harm

Elmi- D fired gun intending to kill wife, intent transferred to charge of assault on bystanders, which required "intent to inflict great bodily harm."
Voluntary intervening actor excuse- first actor in sequence of events not responsible for entirely voluntary subsequent human action.
o Ordinary negligence doesn't break causal chain

First actor responsible if subsequent action is reckless, unless entirely voluntary

Kern- causation when D chased V onto highway, where V was hit by truck

Table of Contents

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