Criminal Law Kaplan/Outline

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Criminal Law
Authors John Kaplan
Robert Weisberg
Guyora Binder
Text Image of Criminal Law: Cases and Materials [Connected eBook with Study Center] (Aspen Casebook)
Criminal Law: Cases and Materials [Connected eBook with Study Center] (Aspen Casebook)
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I. PUNISHMENT[edit | edit source]

Four Questions for Punishment:

  1. Does it aim to prevent crime or correct it? (Aim)
  2. Does individual character cause crime or do societal circumstances do?
  3. Does punishment express blame?

4. Does the theory distinguish the punished from society? Utilitarian

  • - How to best better society?
  • - Limit: excessive punishment doesn’t benefit society.
    • - Utility is a limit, it must be socially useful.


  1. Aim: prevent future crime.
  2. Character/Circumstance: circumstance - calculated to not act within societal norms based on environmental issues; people are rational actors.
  3. Blame?: no, individuals are just making calculations.
  4. Distinguish?: no, we’re all rational actors.


  1. Aim: prevent future crime by changing offender’s character.
  2. Character/Circumstance: character causes crime
  3. Blame?: no; therapeutic approach - crime is a disease, not a vice.
  4. Distinguish?: Yes, offenders are “sick”; they need to reintegrate back into society.


  1. Aim: prevent future crime.
    1. Assumes offenders will repeat crimes if not incapacitated.
    2. They will not be replaced while in prison (doesn’t acknowledge crimes committed in prison).
    3. They won’t commit more crimes after their release.
  2. Character/Circumstance: character
  3. Blame?: Yes, “you commit the crime, you do the time.”
  4. Distinguish?: Yes, excludes offenders from society.


  • - Not revenge, but “desert” - what one deserves.
  • - Limit: desert, no undeserved punishment.
  1. Aim: correct past crimes.
  2. Character/Circumstance: yes, the person deserves it.
  3. Blame?: yes
  4. Distinguish?: yes - the punished vs. everyone else.


Elements of a Criminal Offense:

  1. A Criminal Act (Actus Reus)
  2. A Guilty Mind (Mens Rea)

3. Causation

Criminal Act (Actus Reus)=[edit | edit source]

Act Requirement

  • - A criminal conviction needs an overt illegal act combined with a guilty mind.
    • - Performing a legal act that is not connected to an intention to commit a crime cannot constitute an overt act.
      • - Proctor v. State
    • - Thoughts alone cannot be punished; they are a poor predictor for crime


  • - There must be a showing that there was a duty to act in order for an omission to act to hold someone criminally liable.
    • - The duty to act must be a legal duty, not a moral obligation.
      • - It may be a duty imposed by a statute, by a status relationship, by a contract, or by a voluntarily assumed care of another.
      • - Jones v. United States'''


  • - For each element of a criminal act (actus reus), it must be a voluntary act.
    • - Martin v. State

‘‘‘ MPC 2.01 ‘‘‘ Guilty Mind (Mens Rea) Categories of Mental State:

  1. Purpose
  2. Knowledge
  3. Recklessness
  4. Negligence
  5. Strict Liability
  • - A collateral crime must be a natural/probable consequence of an intended crime to hold someone liable for it.
    • - An intent to commit a crime does not transfer to accidental acts.
      • - Regina v. Faulkner


Circumstance Result Conduct
Purposely He is aware of such circumstances or hopes they exist. It is his conscious object… to cause such a result. It is his conscious object to engage in conduct of that nature.
Knowingly He is aware that such circumstances exist. He is aware that it is practically certain that his conduct will cause such a result. He is aware that his conduct is of that nature.
Recklessly He consciously disregards a substantial and unjustifiable risk that the material element exists. He consciously disregards a substantial and unjustifiable risk that the material element will result from his conduct. '
Negligently He should be aware of a substantial and unjustifiable risk that the material element exists. He should be aware of a substantial and unjustifiable risk that the material element will result from his conduct. '

‘‘‘ MPC 1.13 & 2.02 ‘‘‘ Mistake of Fact

  • - Under statutes that do not require knowing conduct, mistake of fact is not an affirmative defense; knowing pertinent facts is irrelevant in this situation.
  • - It is possible to convict someone of a crime that is wrong in and of itself, even without mens rea.
    • - Regina v. Prince
  • - A crime is one of “mental culpability” only when a mental state is required with respect to every material element of the offense.
    • - It is assumed statutes define crimes of mental culpability unless it clearly indicates strict liability for offenses under it.
      • - People v. Ryan
    • - When interpreting a federal statute that is silent on a required mental state, the only mens rea read into it is only that which is necessary to separate wrongful conduct from otherwise innocent conduct.
      • - Under 18 U.S.C.S. §875(c), which requires purpose of issuing threat or knowledge of communication would issue a threat, negligence is not enough to support a conviction.
        • - Elonis v. United States

Mistake of Law

  • - A lack of knowledge of the facts necessary for criminal intent is a valid defense in any other crime except crimes of strict liability.
    • - For mistake of fact to be a defense, a reasonable good faith belief in that mistake is required.
      • - People v. Bray
    • - Ignorance of the law is not a valid excuse for criminal conduct; criminal law doesn’t require knowledge that an act is illegal, wrong, or blameworthy.
      • - United States v. Baker
    • - A good-faith misunderstanding of the law or a good-faith belief that one is not violating the law negates willfulness, whether or not the belief/misunderstanding is objectively reasonable.
      • - Cheek v. United States

'‘‘‘ MPC 2.02 & 2.04 ‘‘‘'''''''''''''Capacity of Mens Rea

  • - Evidence of mental impairment may be admitted to negate the mens rea for a non-specific intent crime such as assault in the third degree.
    • - Hendershott v. The People
  • - Voluntary intoxication is a valid defense (against charges such as illegal weapon possession, assault, and resisting arrest) if the charges require purposeful or knowing conduct and the intoxication was such that the actor couldn’t appreciate the nature of the conduct.
    • - State v. Cameron

‘‘‘ MPC 2.08 & 4.02(1) ‘‘‘ Causation Limiting Principles:

  • - But-for-Causation: a class of necessary conditions or acts, “but for” which the harmful result would not have occurred.
  • - Violent Acts: necessary conditions for harmful results are only criminal if they are apparently violent.
  • - Foreseeability: there needs to be a connection between the actor’s culpable mental state and the result; the actor must be able to foresee that their conduct caused the result.
  • - Intervening Events: an intervening event could break the direct chain of causation and absolve a defendant of responsibility.
    • - Intervening Voluntary Acts: providing another person with means of causing harm is not the same as actually causing the harm.
    • - Temporal Intervals: a lengthy interval may break a chain of connection; the longer the interval, the more likely that but for the defendant’s conduct, the victim might have suffered some other misfortune or some other undetected factor caused the result.
  • - Duties: there must be a duty for passive conduct/omissions to cause liability (see above).


III. HOMICIDE[edit | edit source]

  • - Two Categories of Homicide:
    • - Murder: the killing of one human being by another with “malice aforethought.”
      • - Malice: an intention to cause, or willingness to undertake, a serious risk of causing the death of another, when that intent/willingness is based on an immoral/unworthy aim.
      • - Murder is defined as an unjustified killing with:
        • - Purpose to cause death; or
        • - Intent to inflict serious bodily harm; or
        • - Extreme recklessness with respect to a serious risk of harm to another’s life; or
        • - Willingness to undertake even a very small risk of death in committing a serious felony (“felony-murder-rule”).
      • - Manslaughter: homicide without malice; can consist of:
        • - Voluntary Manslaughter: intentional killing done without malice because it was done in the “heat of passion” or under an honest but unreasonable belief of self-defense.
        • - Involuntary Manslaughter: a killing committed recklessly or highly negligently.

Intentional Intentional (Second Degree) Murder

  • - A jury instruction that creates a mandatory rebuttable presumption of an element of a criminal, so that the no longer has to provide evidence supporting that element, violates the Due Process Clause of the Fourteenth Amendment.
    • - Francis v. Franklin

Premeditated (First Degree) Murder

  • - Murder can be proved without evidence of what occurred in the few preceding months.
  • - Premeditation and deliberation can be inferred from: evidence of prior threats, hostility between the accused and the victim, and all the circumstances surrounding an incident.
    • - United States v. Watson

Voluntary Manslaughter

  • - Mitigation:
    • - A homicide that occurs while the killer is in an excited, irrational state is manslaughter, not murder.
      • - People v. Walker
    • - Adultery, physical attack/battery, mutual combat, violence on another can count as provocation.
    • - Words alone cannot.
  • - Cooling Time:
    • - An objective standard is used to judge the “cooling down period” that distinguishes murder and manslaughter.
      • - Ex Parte Fraley
    • - Adultery as Provocation:
      • - If one kills their spouse immediately after witnessing adultery, the correct charge is manslaughter.
        • - Rowland v. State
      • - Provocation Under Reform Rules:
        • - A killing done after a period of prolonged verbal taunting and continued minor provocative acts is entitled to voluntary manslaughter.
        • - Sudden heat of passion must be determined by the jury on an objective standard.

- People v. Berry''''''''''''Unintentional'''Involuntary Manslaughter'

  • - Negligent and Reckless Homicide:
    • - For purposes of criminal culpability, the presence of a party is not required for that person to be considered reckless.
    • - An affirmative omission to can constitute wanton and reckless conduct necessary to convict for manslaughter.
      • - Wanton/reckless conduct requires a grave danger greater than ordinary criminal negligence.
        • - Commonwealth v. Welansky
      • - Contemporary Settings:
        • - If one is under duty to act, and fails to do so, and that failure is the proximate cause of the death of another, there will be culpability for manslaughter.
          • - State v. Williams

Reckless Murder

  • - An act done with an abandoned and malignant heart that results in death will create culpability for murder even if the death was unintended.
    • - Mayes v. The People

‘‘‘ MPC 210 ‘‘‘

IV. JUSTIFICATION AND EXCUSE[edit | edit source]


  1. 'Wrongdoing:'
    1. Justification: actor has advanced a social interest/vindicated a right of such weight that the law shouldn’t discouraged their conduct (actor did no wrong with their offensive conduct)
    2. Excuse: actor denies their particular responsibility for wrongfully committing an offense because the circumstances limited their choice in doing it (the actor can’t be blamed for it/could not have not done it)
  2. 'Legality:'
    1. Justification: defenses are based on defendant’s knowledge on available legal defenses; criteria are “conduct rules/standards” for actors and “decision rules/standards” for administrators of the law; based on the actor’s capacity to make a responsible choice
    2. Excuse: based on the actor’s incapacity of making a responsible choice given the circumstances
  3. 'Burden of Proof:'
    1. Justification: Supreme Court doesn’t require prosecution to have burden of proof, but most jurisdictions do require prosecution to have burden of proof
    2. Excuse: Supreme Court doesn’t require prosecution to have burden of proof
  4. 'Third Parties:'
    1. Justification: third parties may assist, but not, interfere with justified conduct
    2. Excuse: third parties may not assist, but can interfere with excused wrongful conduct

''''''''''''''''''''Defensive Force'''Elements

  • - Self-defence with deadly force is permitted when the defendant has reasonable grounds for believing, and does believe, that they are in imminent danger of being killed or severely harmed.
    • - Self-defense against a believed danger is a right.
      • - People v. La Voie
    • - The right to use deadly force for self-defense is depends on objective circumstances based on a reasonable perception of imminent peril.
      • - Justification depends on the appearance of danger to a reasonable person, not the presence of actual danger.
      • - If a person is misled into using force for self-defense through fault on their own and that force is proportionate to the danger that they think they’re in, it’s justifiable.
    • - The person who initiates an attack that justifies the other to counterattack, then that first person generally cannot use self-defense as justification for killing the other.
      • - But, when the victim of a simple assault responds with sudden and deadly force, then the first person does not have a duty to retreat and can use necessary reasonable force to self-defend.
        • - People v. Glenhorn

Battered Spouse

  • - A defendant in self-defense must be judged as to an honest and reasonable belief of a person standing in their shoes (a subjective standard in that the defendant would be innocent if they reasonably believed their actions were necessary); 2-part test:
    • - Defendant must have believed that the conditions existed to give rise to a claim of self-defense.
    • - Defendant must have believed that the conditions existed for them to have used defensive force.
  • - Use of deadly force to self-defend is limited only to protect actor against serious bodily harm or death.
    • - Juries must determine whether there was a way to safely retreat; this is determined by whether the defendant actually or reasonably believed there was a way to safely retreat.
  • - There is no duty to retreat when one is in their own dwelling, unless they are the original aggressor or they are attacked by a person who also lives there.
  • - “Battered Woman Syndrome”: “in which a regular pattern of spouse abuse creates in the battered spouse low self-esteem and a ‘learned helplessness,’ i.e., a sense that she cannot escape from the abusive relationship she has become a part of.”
    • - State v. Leidholm

‘‘‘ MPC 3.04 & 3.09 ‘‘‘'''''''''''''''''''''''Necessity

  • - Necessity does not allow a person to kill another for survival; it is still murder.
    • - A man cannot kill another and eat his flesh in order to survive starvation.
    • - For justification: utilitarianism would allow justified necessary killing under the idea that more people might die if the person is not killed than if nobody is killed; retributivism would reject this in favor of a “self-sacrifice” principal.
    • - For excuse: utilitarianism would not excuse this in order to deter such behavior and prevent future instances of killings; retributivism would allow this under the idea that temptation from dire necessity would compel someone to kill.
      • - Regina v. Dudley and Stephens

‘‘‘ MPC 3.02 ‘‘‘'''''''''''''''''''''''Duress

  • - Duress is a response to a human threat rather than a natural danger.
  • - It is always an excuse because it is done to further rather than resist the aggressor’s criminal goal.
    • - Responsibility is deflected from the perpetrator to the person who coerced it.
  • - Limits: duress fails when the defendant’s offense is too great or the threat faced is too insufficient.
    • - Common law requires the duress to be an immediate threat of death or serious bodily harm; it still doesn’t excuse the killing of an innocent person.
  • - A defense of compulsion/duress requires that the accused prove that there was no reasonable opportunity to escape or withdraw from the criminal activity; the compulsion needed to be continuous.
    • - The coercion/duress must be present, imminent, and impending as to cause death or serious bodily harm to the defendant or someone the defendant is trying to protect.
    • - Compulsion may not be established by circumstances of an interpersonal dynamic of the defendant and the compelling person.
      • - State v. Crawford

‘‘‘ MPC 2.09 ‘‘‘

V. ADDITIONAL OFFENSES[edit | edit source]

  • - “General part of the law” vs the “specific part of the law”
  • - The “specific part” of criminal codes is usually organised like this:
    • - Homicides: offenses against the person, injury or danger to physical health; codified with assault
    • - Rape: offenses against the sexual autonomy; codified with other sex abuse offenses
    • - Theft: offenses against the interest of property; codified with robbery, burglary, and arson
    • - Perjury: offenses against the administration of justice; codified with obstruction of justice and witness tampering
  • - Certain crimes can span several of these groupings.

''''''''''''''''''''Theft''The Meaning of Theft

  • - For fraudulent conversion to apply, the defendant must have received the money/property of another person/firm/corporation in their possession and fraudulently withhold/convert/apply it to/for their own use and benefit, or the use/benefit of another.
    • - This does not apply in instances where the money/property was the defendant’s own.
      • - Commonwealth v. Mitchneck

The Development of Theft Offenses

  • - Larceny:
    • - A trespassory taking and carrying away of property
    • - From the possession of another
    • - The intent to permanently deprive the owner of that property
  • - Embezzlement: lawful transfer of possession with misappropriation of that money/property
  • - False Pretenses: voluntarily given, but wrongfully induced
  • - Receiving Stolen Goods: generally requires that defendant had knowledge that they were receiving stolen goods; some states only require recklessness/negligence in knowing
  • - Extortion: obtaining property by threat; blackmail somewhat falls in this
  • - It is a felony conversion when one takes something lawfully in the possession of another; it is not a felony conversion to misdeliver a customer’s goods and retain them for one’s own interest if those goods were still lawfully in that person’s possession.
    • - Anon v. The Sheriff of London
  • - Being handed goods for inspection only conveys custody and not possession; taking such goods is considered larceny.
    • - Rex v. Chisser
  • - It is considered larceny when the owner conveys possession of property to a defendant when the defendant used fraud in order to induce such conveyance.
    • - The King v. Pear

‘‘‘ MPC 223 ‘‘‘'''''''''''''Robbery

  • - In order to constitute a robbery, use of force or fear greater than the act of simply taking a piece of property is required; the mere unlawful taking of property is not robbery, just theft.
    • - Mere snatching of property is not robbery.
    • - Pickpocketing or taking by stealth is not robbery.
      • - Lear v. State

‘‘‘ MPC 222 ‘‘‘'''''''''''''''''Burglary

  • - In order to constitute a burglary, the trespasser must have had the intention to commit another independent crime other than the trespass.
    • - State v. Colvin

‘‘‘ MPC 221 ‘‘‘



  • - Attempt is a crime of the same grade and degree as the most serious offense that is attempted.
    • - EX: an attempt to commit felony of the first degree is a felony of the second degree.'

Mens Rea

  • - An attempt requires a specific intent to commit the criminal act.
    • - State v. Lyerla

Actus Reus

  • - An attempt to commit an offense is shown by actions which would result in the consummation of the offense without intervention by independent circumstances.
    • - People v. Murray

‘‘‘ MPC 5.01, 5,02, 5.05 & 211.2 ‘‘‘'''''''''''''''''''''''Complicity'''Accessorial Act

  • - If a party is a participant of a riot, and they realize that there is deadly force being used and continues to aid and abet, it can be inferred that they are an accessory to the use of that force.
    • - State v. Ochoa

Mens Rea

  • - A person aids and abets the commission of a crime when they act with:
    • - A knowledge of the unlawful purpose of the perpetrator; and
    • - The intent or purpose of committing, encouraging, or facilitating the commission of the offense,
    • - By act or advice aids, promotes, encourages, or instigates, the commission of the crime.
      • - People v. Beeman

‘‘‘ MPC 2.06 ‘‘‘


Capital Statutes

  • - A capital sentencing scheme must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.
    • - Olson v. State

''''''''‘‘‘ MPC 210.6 ‘‘‘