Author: Michael P.
School: Rutgers- Newark

Professor: Professor Thomas


Proof of Guilt


Proof Beyond a Reasonable Doubt

Presumption of Innocence


Only takes 51% because the state has won on the trial level. Presumption of innocence has disappeared. Standard of review is sufficiency of the evidence.


Owens v. State 14

Facts: Man found in running car with two empty beer cans. Conv of drunk driving

Issues: Whether the evidence was legally sufficient to support such findings.

Rule: A conviction upon circumstantial evidence alone is not to be sustained unless the circumstances are inconsistent with any reasonable hypothesis of innocence.

Application: The theory of the state’s case rests upon the principle that present stasis on the driveway implies earlier motion on the highway. The appellant could have reasonably been doing one of two things; just getting home, or just leaving. To convict, there would have to be some other factor that would enhance the former.

Conclusion/Holding: The totality of the circumstances are, in the last analysis, inconsistent with a reasonable hypothesis of innocence. Affirmed.


Jury Nullification


State v. Ragland 19

Facts: A previously convicted felon was convicted in a jury trial. The judge’s instructions included the word “must" when explaining the findings.

Issues: Instructions for jury nullification and when he used the word “must" instead of “may."

Application: The only effect of such an instruction would be to make it more likely that juries will nullify the law. Jury nullification is an unfortunate but unavoidable power. It should not be advertised.




Requirement of Previously Defined Conduct


Critical Legal Studies – there is no fixed meaning for anything, everything may be interpred.



Commonwealth v. Mochan p.78 Penn

Facts: Mochan was charged with harassing the victim with lewd, obscene language.

Issues: Was the conduct charged in the indictments, concededly not a criminal offense in this state by any statue

Rule: The principal of legality, or nulla poena sine lege, condemns judicial crime creation.

Application: The common law is sufficiently broad to punish as a misdemeanor, although there may be no exact precedent, any act which directly injures or tends to injure the public to such an extent as to require the state to interfere and punish the wrongdoer, as in the case of acts which injuriously affect public morality, or obstruct, or pervert public justice, or the administration of government.

Conclusion/Holding: Judgement affirmed



Keeler v. Superior Court 81

Facts: The victim was hit in the stomach by her ex-husband and the baby she was carrying was born dead.

Issues: Whether an unborn but viable fetus is a “human being" within the meaning of the California statue defining murder.

Rule: Murder is the unlawful killing of a human being, with malice aforethought.

Application: The Legislature did not intend the meaning of human being to include a fetus. An infant could not be the subject of homicide at common law unless it had been born alive, and this one was not. Conclusion/Holding: Charges are dismissed

DISSENTING: Because of medical advances, the child could have been born alive and therefore should be considered a human life.


The Values of Statutory Clarity


IN Re Banks 90

Facts: Defendant says that he could not have violated the statue because it is unconstitutional and too vauge.

Rule: Any person who shall peep secretly into any room occupied by a female person shall be guilty of a misdemeanor and upon conviction shall be fined or imprisioned in the discretion of the court.

Application: Where a statue is susceptible to two interpretations – one constitutional and one unconstitutional – the Court should adopt the interpretation resulting in finding of constitutionaly.

Conclusion/Holding: Statue stands


Statutory Interpretation


Panels of three judges, petition for a rehearing en banc where all the judges in the circuit try the case.


Rule of lenity – if the legislature is unclear, give lenience to the accused.



United States v. Foster p101

Facts: Police pulled defendant over, in his truck bed, in a zipped-up bag, under a tarp, was a loaded pistol and a bucket with drug paraphernalia. He was convicted of possession and carrying a weapon.

Issues: Was the defendant carrying a gun?

Rule: Whoever, during and in relation to any crime of violence or drug trafficking crime uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years.

Application: It has been held that in order to be convicted, the defendant must have transported the firearm on or about his person. This means the firearm must have been immediately available for use by the defendant. The key it that the weapon must remain within easy reach while the individual is in motion. If carry were defined in the broader sense, it would become synonymous with possess or transport. Congress should give clearer instruction.

Conclusion/Holding: Judgment reversed.

DISSENT: In ordinary usage, the verb “carry" includes transportation or causing to be transported. Nothing in the legislative history indicates that Congress intended any hypertechnical or narrow reading of the word carries.




Actus Reus + Mens Rea = Liability (Prima facie means the prosecution proved this formula)


Actus Reus = act + (if required) attendant circumstances + (if required) causation + (if required) result


Kant says that no harm becomes from only a thought


Voluntary act – 1) uncohersed or 2) does it manifest the will of the actor


Result crime

Conduct crime


Voluntary Act


Martin v. State p112

Facts: Police came the arrested the drunk defendant and took him onto the highway. He was convicted of being drunk on a public highway and appealed.

Issues: Whether a man can involuntarily commit a crime.

Rule: Code 1940, Title 14, Section 120. (Public drunkenness)

Application: Under the plain terms of this statue, a voluntary appearance is presupposed.

Conclusion/Holding: Conviction reversed.



Time framing – look at the narrowist section of time.


State v. Utter p114, Wash

Facts: The son was fatally stabbed by the father. The defendant was a combat infantryman and drinking. heavily all day. From a conviction of manslaughter, he appealed.

Issues: Whether it was error to instruct the jury to disregard the evidence on conditional response.

Rule: An act of homicide involves an exercise of the will. It signifies something done voluntarily.

Application: An act committed while one is unconscious is in reality no act at all. It is merely a physical event or occurrence for which there can be no criminal liability. However, this defense is shaky when the defendant is under the influence of drugs or alcohol. The issue of whether or not the appellant was in an unconscious or automatistic state at the time he allegedly committed the criminal acts charged is a question of fact.

Conclusion/Holding: The evidence is insufficient to support this defense.




People v. Beardsley p.118 Mich

Facts: Man placed drunk lover who overdoesed in the basement and she died. Defendant was convicted of manslaughter and appealed.

Issues: Whether the defendant owned the victim a duty which he failed to perform

Rule: It must be a duty imposed by law or by contract and the omission to perform the duty must be the immediate and direct cause of death.

Application: The fact that this woman was in his house created no such legal duty as exists in law and is due from a husband towards his wife.

Conclusion/Holding: Conviction is set aside.



Distinguishing Acts From Omissions


Barber v. Superior Court p.124 Cali

Facts: Two doctors unplugged the life support system to include the intravenous feeding tubes of the victim. There was consulting with the family and the prognosis was extremely poor.

Issues: Whether the evidence presented before the magistrate was sufficient to support his determination and petitioners should not be held to answer to the charges of murder and conspiracy to commit murder.

Rule: “Life" is brain function rather than mere metabolic processes which result from respiration and circulation.

Application: The cessation of life support measures is not an affirmative act but rather a withdrawal or omission of further treatment. Although there may be a duty to provide life-support in the immediate aftermath of a arrest, there is no duty to continue its use once it has become futile.

Conclusion/Holding: The petitioners’ omission to continue treatment under the circumstances was not an unlawful failure to perform a legal duty.




Regina v. Cunningham p.133 England

Facts:. The appellant went to his cellar and took the gas meter out for money without turning off the gas. His future mother-in-law who lived next door was partially asphyxiated. Accused was convicted.

Issues: Did the judge misinform the jury that maliciously means wicked

Rule: Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of felony.

Application: Malice must not be taken out in the old vague sense of wickedness. In modern law, it is seen more narrowly. It should have been left to the jury to decide.

Conclusion/Holding: Conviction overturned.


Proving Culpability




Knowingly – practically certain.


Specific intent – elements include separate intent from the actus reus of the crime, a special motive or purpose, and awareness of the attendant circumstances.


General intent


People v. Conley p.135 Ill

Facts: The defendant assaulted another man. As a result, the victim has mucosal mouth, partial numbness in one lip, and diminished life expectancy of his teeth. Defendant was found guilty of aggravated battery based solely on permanent disability.

Issues: Whether the victim incurred a permanent disability and that the defendant intended to inflict a permanent disability.

Rule: A person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated battery.

Application: For an injury to be deemed disabling, all that must be shown is that the victim is no longer whole such that the injured bodily portion or part no longer serves the body in the same manner as it did before the injury.

Intent can be inferred from the surrounding circumstances, the offender’s words, the weapon used, and the force of the blow.

Conclusion/Holding: Judgment affirmed.




State v. Nations p.145 Missouri

Facts: Defendant owns and operates a disco where police found a 16 year old stripping. Defendant was convicted of endangering the welfare of a child.

Issues: Whether the state failed to show the defendant knew the child was under seventeen.

Rule: § 568.050 requires the state prove the defendant “knowingly" encouraged the child.

Application: While in the Model Penal Code “knowingly" encompassing willful blindness of a fact, this states choose to limit the definition to actual knowledge.

Conclusion/Holding: Judgment reversed.


Statutory Interpretation


US v. Morris p.149

Facts: D placed a worm on the internet to show it was insecure. It went crazy and he tried to stop it.

Issue: Whether D intended to prevent unauthorized use of the computer’s information

Rule: anyone who intentionally accesses a computer without authorization, and by means of one or more instances of such conduct alters, damages, or destroys information in any such computer, or prevents authorized use of any such computer or information and thereby causes loss to one or more others of a value aggregating $1000 or more during any 1 year period.

Application: The intentionally standard applies only to the accesses phrase and not to its damages phase.

Conclusion: Affirmed


Strict Liability Offenses


Staples v. United States p.156

Facts: The defendant was caught with a M-16 rifle that was filed down. He stated that the rifle had never been fired automatically when it was in his possession. The defendant wanted the trial court to instruct the jury that the Government must prove beyond a reasonable doubt that he knew the gun would fire automatically. The judge refused and he was found guilty. Because the statue had no mens rea, it was found it be strict liability. Appellant court affirmed.

Issues: Whether the trial court erred in jury instructions.

Rule: The National Firearms Act prohibits automatic weapons.

Application: Mens rea has been followed in regard to statutory crimes even where the statutory definition did not in terms include it. To dispense with mens rea would criminalize a broad range of apparently innocent conduct.

It is unthinkable to us that Congress intended to subject such law-abiding, well-intentioned citizens to a possible ten-year prison term if what they genuinely and reasonably believed was a conventional semi-automatic weapon turns out to have worn down into or been secretly modified to be a fully automatic weapon.

Conclusion/Holding: Judgment reversed.


Garnett v. State p.164 Mary

Facts: Defendant was a mildly retarded 20 year old who had sex with a 13 year old girl. The crime was a strict liability offense with no mens rea in the offense. The court found him guilty.

Issues: Whether this is a strict liability offense

Rule: A person is guilty of rape if the person engages in vaginal intercourse with another person: Who is under 14 years of age and the person performing the act is at least four years older than the victim.

Application: Modern scholars reject the strict liability theory stating it does not deter. The Model Penal Code generally recognizes strict liability for offenses deemed “violations" defined as wrongs subject only to a fine, forfeiture, or other civil penalty upon conviction, and not giving rise to any legal disability. This Legislature aimed to make statutory rape with underage persons a more severe prohibition based on strict criminal liability.

Conclusion/Holding: Judgment affirmed.

Dissent: Presumably a 20 year old, who passes out because of drinking too many beers, would be guilty of a sexual offense if a 13 year old engages in sexual activities with the 20 year old while they are out. This is inconsistent with due process.


Mistake and Mens Rea


Mistake of Fact


People v. Navarro p.172 Cali

Facts: The defendant took four wooden beams from a construction site. Defendant was convicted of petty theft.

Issues: Whether the jury erred in giving the instruction that the defendants actions had to be reasonable to act in good faith.

Rule: Every person who shall feloniously steal the personal property of another is guilty of theft.

Theft is, the tresspassory taking and carrying away of the personal property of another with the intent to steal the property.

Application: One cannot intend to steal property which he believes to be his own, or that he believes is abandoned.

Conclusion/Holding: Judgment reversed.



Specific / general intent


General intent crimes need to be reasonable.


Specific intent crimes such as larceny have no reasonability rules.


Mistake of Law


People v. Marrero p.177 NY

Facts: An out-of-state prision guard a personal misunderstanding of the statue. He was convicted.

Issues: Did the D make a mistake about what the law prohibits.

Rule: A person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief that it does not, as a matter of law, constitute an offense, unless such mistaken belief is founded upon an official statement of the law contained in (a) a statute or other enactment *** (d) an interpretation of the statute or law relating to the offense, officially made or issued by a public servant, agency, or body legally charged or empowered with the responsibility or privilege of administering, enforcing or interpreting such statue or law.

Application: Ignorance of the law is no excuse. This defense should not be recognized, except where specific intent is an element of the offense or where the misrelied-upon law has been properly adjudicated as wrong.

Conclusion/Holding: Judgment affirmed.

DISSENT: The dogmatic rule that ignorance or mistake of law is no excuse has remained unaltered. Only a defendant who is not mistaken about the law when he acts has a mistake of law defense


MPC: A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when *** (b) he acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (i) a statute or other enactment



Cheek v. United States p,189 US

Facts: The defendant, an airline pilot, ceased to pay income taxes. The court instructed the jury that an honest but unreasonable belief is not a defense and does not negate willfulness.

Issues: Whether it was errer to instruct the jury that willfullness can be negated by reasonable good will.

Rule: Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall be guilty of a felony.

Application: A claimed good-faith belief does not have to be reasonable to negate willfulness.

Conclusion/Holding: Judgment reversed.

DISSENT: A licensed pilot should be held to a reasonable person standard.



Mistake of law about another law.


Mistake about meaning or scope or existence of the law defendant charged with violating.




Velazquez v. State p.194 Flor

Facts: The defendant was auto racing with the victim. The victim died when he crashed into a guard rail. Defendant was prosecuted for vehicular homicide.

Rule: Vehicular homicide is the killing of a human being by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another.

Application: Where a defendant’s conduct is a cause-in-fact of a prohibited result, the courts decline to impose criminal liability (1) where the prohibited result of the defendant’s conduct is beyond the scope of any fair assessment of the danger created by the defendant’s conduct, or (2) where it would otherwise be unjust.


In relatively rare cases the “but for" test for causation-in-fact fails and has been abandoned in favor of the “substantial factor" test as when two defendants concurrently inflict mortal wounds upon a human being, each of which is sufficient to cause death.


Actual Cause


Oxendine v. State p.196 Dela

Facts: Both D and his live-in girlfriend beat his son. D was convicted of manslaughter and appeals.

Issues: Did the trial court error by denying his motion for a judgment of acquittal on the issue of causation.

Rule: A finding of medical causation may not be based on speculation or conjecture.

Application: The pathologist identified two distinct injuries. Doctor A stated he was unable to tell which injury caused the death. Doctor B stated it was the earlier injury that caused the death. If the second injury caused his son to die ant sooner, then D, who inflicted the second injury, would be deemed to have caused his son’s death.

Conclusion/Holding: Reversed and remanded to assault in the second degree.


Proximate Cause


Kibbe v. Henderson p.201 US

Facts: V was drinking heavily and was robbed by D who left him on the side of the road without his glasses. A man driving down the road, hit the victim who was sitting in the middle of the road.

Issues: Whether the judge failed to define or explain the issue of causation.

Rule: Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which create a grave risk of death to another person, and thereby causes the death of another person.

Application: When the judge erred, he allowed the jury to convict without finding that every element of the crime had been proven beyond a reasonable doubt.

Conclusion/Holding: Reversed

Concurrence of the Elements


State v. Rose p.209 RI

Facts: D struck V who was later found wedged beneath the vehicle. D was found guilty of manslaughter.

Issues: Was the victim dead upon impact?

Rule: The victim has to be dead immediately after impact for the D to be found guilty.

Application: The only medical witness stated death could have resulted immediately upon impact. Lacking any reasonable medical certainty as to the time of death.

Conclusion/Holding: Reversed




Murder – 1st degree, 2d

Manslaughter – Vol, Invol

No crime – Tort, No Responsibility


People v. Eulo p.1984 NY

Facts: The accused shot the victim in head. At the hospital he was placed on a respirator and later declared brain dead.

Issues: Did the trial judge adequately instruct the jury for what constitutes death and what time criminal liability for a homicide would attach.

Application: To construe our homicide statute to provide for criminal responsibility for homicide when a defendant’s conduct causes injury leading to the victim’s total loss of brain functions, is entirely consistent with the legislature’s concept of death.

Conclusion/Holding: There was sufficient evidence for a rational juror to have concluded beyond a reasonable doubt that each defendant’s conduct caused the victim’s death and that the medical processes were not superseding causes of death.



Intentional Killing


State v. Schrader WV

Facts: From an argument, accused stabbed victim 51 times. Accused states self-defense because victim had reached into his pocket. Found guilty of murder one, defendant appealed.

Issue: Jury Instru. Is it necessary that the intention exist for any set length of time prior to the killing

Rule: An intent to kill need only exist for an instant

Conclusion: Court did not err in its instructions.



Midgett v. State p.233 Ark

Facts: Defendant consistently beat his son until he died one day.

Issue: Whether the state’s evidence was sufficient to sustain the conviction.

Rule: …premeditated and deliberated purpose of causing the death of another person

Application: There is no evidence that he killed his son by premeditation and deliberation causing his death.

Conclusion: No evidence of premeditation, reduced to 2nd degree.

DISSENT: The degree of murder committed is for the jury to decide. The jury could easily conclude that such repeated treatment was intended to kill the child.



Motive is different from mens rea.



State v. Forrest NC

Facts: Defendant admitted his terminally ill father to a hospital. He shot him four times in the head while in bed and walked out of the hospital. Convicted of murder one, and appealed.

Issue: Whether trial judge erred in refusing to grant directed verdict for insufficient evidence of premeditation and deliberation.

Rule: First degree murder is the intentional and unlawful killing of a human being with malice and with premeditation and deliberation.

Application: These elements are usually proved by circumstantial evidence.

Conclusion: Affirmed





The difference between murder and manslaughter is the presence or absence of malice.


Girouard v. State p.238 Mary

Facts: Woman kept insulting defendant until he snapped and stabbed her 19 times. Convicted of murder two.

Issue: Whether words alone are adequate provocation to change to manslaughter from murder two.

Rule: Traditional manslaughter limited to: extreme assault or battery upon the defendant; mutual combat; defendant’s illegal arrest; injury or serious abuse of a close relative of the defendant’s; or the sudden discovery of a spouse’s adultery.

Application: Rule of Provocation:

1. There must have been adequate provocation;

2. The killing must have been in the heat of passion;

3. It must have been a sudden heat of passion before it cools

4. There must have been a causal connection between the provocation, the passion, and the fatal act.

Conclusion: Because D was not reasonable, provocation was not adequate.




Justification focuses on the act; excuse focuses on the actor.


Provocation is a PARTAL defense.


Reasonable Man/Objective Standard


Director of Public Prosecutions v. Camplin p.250 England

Facts: Fifteen year old boy killed victim with a frying pan after he was sodomized. He asked for manslaughter based on provocation. Judge instructed the jury on reasonable man.

Issue: Whether the jury should have instructed on the reasonable boy standard.

Application: The reasonable man referred to in the question is a person having the power of self control to be expected of an ordinary person of the same sex and age of the accused.

Conclusion: Affirm Court of Appeals.



Murder v. Manslaughter


People v. Casassa p.257 NY

Facts: D stabbed and drowned exgirlfriend. Witness claimed “his disturbed state was not the product of external factors but rather was a stress he created from within himself."

Issue: Whether the defendant, in a murder prosecution, established the affirmative defense of extreme emotional disturbance which would have reduced the crime to manslaughter.

Rule: It is an affirmative defense degree where “the defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse.

Application: Extreme emotional disturbance may be that a significant mental trauma has affected a defendant’s mind for a substantial period of time.

Conclusion: Affirmed.



Unintentional Killings


Berry v. Superior Court p.266 US

Facts: A fighting pit bull was tied at the D’s house guarding a marijuana patch. A neighbor’s 2 year old child, left unguarded, roamed into the yard and was attacked and died.

Issue: Can D be tried for murder with implied malice?

Rule: Two requirements:

1. Shown extreme indifference to the value of human life.

2. D was aware of the risks of the conduct or the conduct was contrary to law.

Application: The fighting dog did pose a treat to humans and it had an exceptionally hard bite and D was aware of these facts.

Conclusion: Sufficient evidence for trial.



State v. Hernandez p.273 Missouri

Facts: D killed V by auto after he drank some whiskey and a 12 pack. He had numerous bumper stickers about drinking that were admitted into evidence. Jury found D guilty of involuntary manslaughter.

Issue: Did the trial judge err in admitting the stickers into evidence? Yes

Rule: …that D acted with criminal negligence; and that, in so doing, D caused the victim’s death.

Application: In order for evidence to be relevant, it must logically tend to support or establish a fact or issue between the parties. The state did not have to prove that D knew of the effects of alcohol upon him.

Conclusion: Reversed.

Dissent: MPC states the jury first had to determine that the D created a substantial and unjustifiable risk of which he ought to have been aware.




Recklessness +


Criminal Negligance



State v. Willliams p.277 Wash

Facts: Ds were charged and found guilty of manslaughter for failing to give their infant medical attention.

Issue: Did the D meet the requirements for negligence in manslaughter?

Rule: Washington requires only simple or ordinary negligence for manslaughter.

Application: The Ds were aware that medical help was available but ignorant in that they thought the child had a toothache.

Conclusion: There is sufficient evidence applying the standard of ordinary caution. Affirmed.



Unlawful Conduct


People v. Stamp p.285 US

Facts: D entered the victim’s office and robbed it. Shortly thereafter, victim died from heart attack.

Issue: Is this crime applicable to the felony murder rule?

Rule: …a killing committed in either the perpetration of or an attempt to perpetrate robbery is murder of the first degree.

Application: D is held strictly liable for all killings committed by him or his accomplices in the course of a felony.

Conclusion: Guilty.


No proximate cause requirement

No mens rea








Actus Reus


Forcible Rape


Rusk v. State p.363 Mary

Facts: Victim meet D and went into her apartment after he took her car keys. He put his hands on her throat. She took off her clothes and performed oral sex and intercourse. Convicted rape 2nd and assault.

Issue: Is the evidence sufficient to conclude that the accused was guilty beyond a reasonable doubt?

Rule: A person is guilty of rape in the second degree if he (1) engages in vaginal intercourse with another person, (2) by force or threat of force, (3) against the will, and (4) without the consent of the other person.

Application: Force is an essential element of the crime. We have been unable to see any resistance.

Conclusion: The evidence was insufficient to convict appellant of rape. Reversed.

Dissent: We have perpetuated and given new life to myths about the crime of rape that have no place in our law today. Consent is not the issue here, only whether there was sufficient evidence of force or the threat of force.


Rusk – Court of Appeals of Maryland p.368

The reasonableness of the victim’s apprehension of fear was plainly a question of fact for the jury to determine. Reversed.

Dissent: She must follow the natural instinct of every proud female to resist, by more than mere words.



State v. Alston p.372 NC

Facts: D and V were involved for six months prior to the incident. She left and D and he said he wanted to have sex one more time. She told him no but she complied and cried during intercourse. Later, he came to her apartment he they had concentual sex all night. From a conviction, D appeals.

Issue: Whether the evidence was sufficient to support his conviction of 2nd degree rape.

Rule: Second degree rape involves vaginal intercourse with the victim both by force and against the victim’s will.

Application: There is substantial evidence that the act was against her will. The threat by D and his act of grabbing (force) appeared to have been unrelated to the act of sexual intercourse.

Conclusion: Reversed.



Commonwealth v. Berkowitz p.385 Penn

Facts: V went to D room looking for his roommate. She was drinking and walked in on D. She said no repeatingly while they had intercourse. She jumped up after they were done and ran downstairs and cried when she saw her boyfriend. Facts were contested. Defense claims V had asked D the size of his penis and laid down on his bed several times and passionately returned his kisses. Jury convicted D of rape.

Issue: Do the facts support a conviction?

Rule: A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse:

(1) by forcible compulsion;

(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;

(3) who is unconscious; or

(4) who is mental deranged

Application: She was neither hurt nor threatened and never screamed or attempted to summon help. Although evidence of verbal protestations may be relevant to prove that the intercourse was against the victim’s will, it is not dispositive of sufficient evidence of “forcible compulsion."

Conclusion: Trial court erred in determining the evidence adduced by the State was sufficient to convict.



State of New Jersey in the Interest of M.T.S. p.394 NJ

Facts: A told V he was going to make a trip to her room. She awoke with him penetrating her. She slapped him and he left. The facts are controvesial as follows: For three days prior, they had been kissing and V had encouraged A to come up to her room. After returning from the bathroom, V began kissing with A and began consentual intercourse. After the fourth thrust, she pushed him away and slapped him. Appellate reversed.

Issue: Whether the element of “physical force" is met simply by an act of non-consensual penetration.

Rule: A person who commits an act of sexual penetration using physical force or coercion is guilty of second-degree sexual assault.

Application: When a statue is open to conflicting interpretations, the court seeks the underlying intent of the legislature, relying on legislative history and the contemporary context of the statute. Physical force in excess of that inherent in the act of sexual penetration is not required for such penetration to be unlawful.

Conclusion: Reversed.




Boro v. Superior Court p.406 Cali

Facts: D told V she had a fatal disease and there were two cures, a expensive, painful surgery, or sex with a donor for $4500. D seeks a writ of prohibition to restrain further prosecution.

Issue: Whether the D’s motion to dismiss should have been granted.

Rule: Rape – an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:…(4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused.

Application: It was her belief that she would die unless she consented to sexual intercourse with the D but she was not unconscious of the nature of the act.

Conclusion: Yes, reversed.


Mens Rea


Commonwealth v. Sherry p.413 Mass

Facts: V and Ds went to a home and had verbally protested sex. Each defendant believed there was consent.

Issues: Whether the proper jury instructions were given.

Application: The defendants’ requested instruction would have required the jury to “find beyond a reasonable doubt that the accused had actual knowledge of the victim’s lack of consent.

Conclusion: Affirmed.


Rape Shield Laws


People v. Wilhelm p.422 Mich

Facts: D viewed V expose her breasts in public and allow two men to fondle them. D had nonconsentual intercourse with V

Issue: Whether the trial court abused its discretion when it prohibited him from introducing certain testimony concerning alleged prior acts of the victim.

Rule: Rape shield statute prohibits evidence of the V’s sexual conduct with another.

Application: Evidence of a victim’s sexual conduct with a third party is irrelevant

Conclusion: Because the evidence was irrelevant, D was not denied his right of confrontation.


Cautionary Jury Instructions


State v. Bashaw p.426 Oreg

Issue: Did the trial court err in refusing to give the D’s jury instructions?

Instruction: “A charge such as that made against the defendant in this case is one which is easily made and once made difficult to defend against even if the person accused is innocent. Therefore, the law requires that you examine the testimony of the female person named in the Information with caution.

Application: This jury instruction requested by the defendant should never be given in any rape case.

Conclusion: The trial court was correct in refusing to give the instruction.


General Defenses


Burden of Proof


Patterson v. New York p.442 US

Facts: After a brief marriage, V started dating her neighbor. A borrowed a rifle and observed his wife undressed with the neighbor. A entered the house and killed neighbor. A was charged w/ murder 2nd.

Issue: Whether the defendant is burdened by proving his defense of extreme emotional disturbance.

Rule: Intent to cause the death of another person; and causing the death of such person. (NO MALICE HERE)

A person is guilty of manslaughter if he intentionally kills another person “under circumstances which do not constitute murder because he acts under the influence of extrreme emotional disturbance.

Apllication: There is an affirmative defense that he “acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse"

New York murder statute does not contain malice which is the opposite of EED; therefore forcing the A to prove EED does not mean he needs to disprove a part of the statute and by ny the failure to prove EED, malice was not presumed.

Conclusion: Affirmed.







United States v. Petterson DC

Facts: D caught V stealing windshield wipers and yelled at them. When he went into the house to get a gun, the men got into the car. When D reappeared, the deceased got out of the car with a crowbar and walked towards the D who fired and killed them. Charged with murder 2nd and convicted by jury of manslaughter.

Issue: Whether the trial judge erred when he gave instructions to consider if D was the aggressor and to consider his failure to retreat.

Rule: There must have been a threat, actual or apparent, of the use of deadly force against the defendant. The threat must have been unlawful and immediate. The defender must have believed that he was in imminent peril of death or serious bodily harm, and that his response was necessary to save himself therefrom.

Application: One is the aggressor in a conflict culminating in death cannot invoke the necessities of self-preservation. Only in the event that he communicates to his adversary his intent to withdraw and in good faith attempts to do so is he restored to his right of self-defense.

Conclusion: Affirmed.



The castle doctrine states they is no fault if attacked in his home and there is no duty to retreat.



People v. Goetz p.466 NY

Facts: Four black youths boarded a subway and one approached D and said “give me five dollars." D pulled out a pistol and fired five shots, paralyzing one youth and wounding the others. He knew the youth did not have a gun. Pausing, he said “you seem to be all right, here’s another," and shot him. D stated he would have continued shooting if he had more bullets. The GJ dismissed the charges of the indictment based on the prosecutor’s alleged erroneous instructions that the conduct should be wholly subjective. Appellate division affirmed.

Issue: Whether the D’s conduct should be viewed in a subjective or objective state.

Rule: a person may use physical force upon another person when and to the extent he reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by such other person.

Application: A jury which believed a defendant’s testimony that he felt that his own actions were warranted defies the ordinary meaning and significance of the term “reasonably."

To completely exonerate such an individual, no matter how aberrational or bizarre his thought patterns, would allow citizens to set their own standards for the permissible use of force.

Conclusion: Reversed.



Degree of Standard



State v. Wanrow p.480 Wash

Facts: D’s two children were staying with Hooper. D’s son came back and told Hooper that a man tried to grab him. Minutes later, the man (victim) came to the house. Hooper’s daughter stating the man also abused her. Hooper called the police but they could not do anything until Monday. Hooper called D and other friends to slept over. D came with a pistol. Two of the men went to victim’s house and brought him back to Hooper’s where she shot him when he startled her. From jury conviction of murder 2nd, D appealed.

Issue: Whether the trial court errered when it instructed to consider only those acts and circumstances occuring “at or immediately before the killing"

Rule: The justification of self-defense is to be evaluated in light of all the facts and circumstances known to the defendant, including those known substantially before the killing.

Application: Through the persistent use of the masculine gender leaves the jury with the impression the objective standard to be applied is that applicable to an altercation between two men.

Conclusion: Reversed.


Battered Woman Syndrome


State v. Norman p.486 NC

Facts: A sheriff was dispatched and found the deceased with two gunshot wounds to his head. D told him that her husband had been beating her all day. And she shot him while he was sleeping. There had been a long history of abuse On the evening before, she stated she could not take the abuse any longer On the day of the murder, while at her mother’s house, she found a gun and went back to her house and shot him.

Issue: Whether the TC erred in failing to instruct the jury on self-defense.

Rule: D believe it necessary to kill the deceased in order to save herself from death or great bodily harm calls for a subjective element. The second requirement is that D’s belief be reasonable is measured in the objective standard.

Application: She fully believed that he was invulnerable to the law and to all social agencies. A jury could find that decedent’s sleep was but a momentary hiatus in a continuous reign of terror by the decedent, that D merely took advantage of her first opportunity to protect herself, and that defendant’s act was not without the provacation required for self-defense.

Conclusion: The evidence was sufficient to submit an issue of self-defense to he jury.


State v. Norman p.492

Application: The TC properly declined to instruct the jury on the law relating to self-defense. Imminent death or great bodily harm. The defendant had ample time and opportunity to resort to other means of preventing further abuse of her husband.

Conclusion: Reversed.

DISSENT: The proper issue for this court is to determine whether the evidence, viewed in the light most favorable to the D, was sufficient to require the TC to instruct on the law of self-defense.


Defense of Others


Commonwealth v. Martin p.506 Mass

Facts: A stuggle erupted between two inmates and two guards. D left his cell and saw officers beating an inmate. He struck the officers. The judge gave the jury no instructions on the subject of the priviledged use of force to protect another.

Issue: Whether the trial judge erred in failing to instruct the jury with respect to the D’s claimed justification that the acts of which he was accused were part of an attempt on his part to come to the aid of a fellow inmate.

Rule: An actor is justified in using force against another to protect a third person when a) a reasonable person in the actor’s postion would believe his intervention to be necessary for the protection of the third person and b) in the circumstances as that reasonable person would believe them to be, the third person would be justified in using such force to protect himself.

Application: The guard’s mere taking an inmate into custody or holding him in custody would not be a proper occasion for intervening force.


Law Enforcement Defenses


People v. Ceballos p.510 Cali

Facts: D, rigged a spring gun at the door when he found pry marks around the door. Two boys attempted to enter and one was shot in the face. Jury found D guilty of assault with a deadly weapon.

Issue: Was D justified in shooting victim.

Rule: An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.

Application: Where the character and manner of the burglary do not reasonably create a fear of great bodily harm, there is no cause for exaction of human life, or for the use of deadly force.

Conclusion: Affirmed



Tennessee v. Garner p.517 US

Facts: Officers were dispatched to a home that was being burglurized. Victim was climbing fence to get away and officer shot him after yelling halt. Father brought suit.

Issue: What is the constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon.

Rule: If, after notice of the intention to arrest the D, he either flee or forcibly resist, the officer may use all the necessary means to effect the arrest.

Application: The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. Such force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.

Conclusion: The statute is invaild.


In common law all felonies were punishable by death; therefore, the killing of a resisting or fleeing felon resulted in no greater consequences than those authorized for punishment of the felony of which the individual was charged.





Commonwealth v. Leno p.526 Mass

Facts: Dispite state law prohibiting distro of needles, D set up a needle exchange program. D were charged, found guilty and appealed.

Issue: Did the TJ err in refusing to instruct the jury on the defense of necessity.

Rule: Necessaity is: (1) the D is faced with a clear and imminent danger, not one which is debatable or speculative; (2) the D can reasonably expect that his action will be effective as the direct cause of abating the danger; (3) there is no legal alternative which will be effective in abating the danger; and (4) the Legislature has not acted to preclude the defense by a clear and deliberate choice regarding the values at issue.

Application: The prevention of possible future harm does not excuse a current systematic violation of the law in anticipation of the eventual over-all benifit to the public.

Conclusion: Affirmed


Civil Disobedience


United States v. Schoon p.534 US

Facts: D went into IRS office and splashed fake blood because of tax dollars going to El Salvador.

Issue: Did the district court deny D a necessity defense.

Rule: (1) they were faced with a choice of evils and chose the lesser evil; (2) they acted to prevent imminent harm; (3) they reasonably anticipated a direct causal relationship between their conduct and the harm to be averted; and (4) they had no legal alternatives to violating the law.

Application: Necessity defense is inapplicable to cases involving indirect civil disobedience. The most immediate harm the appellants sought to avert was the existence of the government’s El Salvador policy, which is not in itself a legally cognizable harm.

Conclusion: Affirmed.







United States v. Contento-Pachon p.553 US

Facts: Drug cartel told D he had to swallow 129 balloons of cocaine and transport himself into the US or his family would be murdered. At trial the court excluded all evidence of duress.

Issue: Whether the D presented enough evidence to support a claim of duress.

Rule: Three elements of duresss: (1) an immediate threat of death or serious bodily injury, (2) a well-grounded fear that the threat will be carried out, and (3) no reasonable opportunity to escape the threatened harm.

Application: He had reason be believe the force would be carried out. A trier of fact should decide if D might believe he had no reasonable opportunity of esacape.

Conclusion: Reversed.


Necessity v. Duress


People v. Unger p.561 Ill

Facts: D walked off the prision yard because he claimed he was being abused and threatened by other






Two bad harms weighed against each other – forced to do one



Regina v. Howe p.569 England









Commonwealth v. Graves p.574 Penn







Involuntary Intoxication


City of Minneapolis v. Altimus p.585 Minn







New Defenses


Addiction Defense


Robinson v. California p.662 US














Actus Reus


United States v. Mafnas p.946 US

Facts: Plaintiff was convicted of stealing money from two banks. He was a armored car driver who opened the bags of money and stole.

Issues: Whether the actions constituted larceny.

Rule: If a person receives property for a limited or temporary purpose, he is only acquiring custody. His subsequent decision to keep the property for himself would constitute larceny.

Application: Common law larceny requires a trespassory taking. The plaintiff argues he had lawful possession of the bags, with the consent of the banks, when he took the money. It was beyond the consent of the owner who retained constructive possession.

Conclusion/Holding: Judgment affirmed


If the armored car service was the possessor, the defendant would still be guilty because the bailment or possession was of the bags themselves and not the contents.


Rex v. Chisser p.946 Emgland

Facts: Defendant came to a shop and asked to see a product. When it was handed to him, he offered less than it was worth and ran off.

Issues: Whether this be felony.

Application: The goods were delivered but not out of the possession of the plaintiff.

Conclusion/Holding: This act is felony.



Topolewski v. State p.950 Wisc

Facts: The accused was charged with stealing three barrels of meat. They set out four barrels for the defendant to drive up and take away during normal business hours. Employees openly watched as the defendant took the barrels and told the warehouse keeper to bill him.

Issues: Whether a person can be guilty of larceny if the victim helps or aids the accused and gives possession.

Application: The setting of the trap must not go further than to afford the would-be thief the amplest opportunity to carry out his purpose.

Conclusion/Holding: If the owner of the property aids in the commission of the offense the would-be criminal is not guilty of all the elements of the offense.



State the reasoning and not only the rules.



Rex v. Pear p.953 England

Facts: The defendant was indicted for stealing a horse. The horse was hired to take a journey and the defendant sold him the same day.

Issues: Whether the delivery of the horse had changed the possession of the property as to render the subsequent conversion of it a mere breach of trust, or whether the conversion was felonious?

Application: The parting with the property had not changed the nature of the possession, but that it remained unaltered at the time of the conversion.

Conclusion/Holding: The prisoner was therefore guilty of felony.


Brooks v. State p.954 Ohio

Facts: Plaintiff was convicted of larceny for stealing $200 in bank bills. Plaintiff found a bank roll on the street. The plaintiff did not tell anyone, instead moved his family out of town and spent the money.

Issues: Under what circumstances does the property become the subject of larceny by the finder.

Rule: The title of the property still remains the owner unless the circumstances were such as to show that it had been abandoned by the owner.

Application: Before the finder can be guilty of larceny, the intent to steal the property must have existed at the time he took it into his possession.

Conclusion/Holding: No ground for interfering with the action of the court below.



Lund v. Commonwealth p. 957 Virg

Facts: Defendant was charged with the theft of keys, computer stuff and the use of the computer. He was working on hid doctoral dissertation and needed the use of a computer. The unauthorized time spent on the computer was billed to different areas of the school. He was found guilty of grand larceny

Issues: Was the computer time and services subject of larceny under the code.

Rule: For one to be guilty of the crime of larceny he must obtain from another person money or other property which may be the subject of larceny, with the intent to defraud.

Application: Defendant could not be convicted of grand larceny because there was no evidence that those articles were stolen and that they had a market value of $100 or more.

Conclusion/Holding: Judgment reversed.


At common law, labor or services could not be the subject of the crime of false pretense because neither time nor services may be taken and carried away.



Mens Rea


People v. Brown p.960 Cali

Facts: Seventeen year old boy took bike from house without intention to keep it.

Issues: Whether the court erred in giving the jury instructions stating the defendant was guilty even if he did not intend to deprive the victim of the bicycle prementantly.

Rule: The rule of larceny states you must have the intent to deprive the victim permanently.

Conclusion/Holding: This instruction is erroneous, and demands a reversal of the judgement.



People v. Davis p.964 Cali

Facts: Defendant entered store with shopping bag. He took a shirt off the rack and went to the refund counter to exchange it for cash. Surveillance personal saw the transaction and ordered down to the cashier to give him a exchange credit voucher. Defendant was arrested as he walked away from the counter. Issues: Whether this is larceny.

Rule: The elements of larceny: (1) takes possession (2) of personal property (3) owned or possessed by another, (4) by means of trespass and (5) with intent to steal the property, and (6) carries it away.

Intent to steal may be found when (1) When the defendant intends to sell the item back to its owner, (2) when the defendant intends to claim a reward for finding the property, and (3) when the defendant intends to return the property to its owner for a refund.

Application: Defendant contends that he had no intention to permanently deprive the store of the shirt. The store consented to the issuance of the voucher with full knowledge of how he came into possession of the shirt. A self-service store consents to a customer’s picking up and handling an item displayed for sale and carrying it from the display area to a sales counter with the intent of purchasing it. (The credit voucher was entrapped to him and the credit voucher was an merger of the shirt; therefore, the whole act was entrapped. The shirt was not carried away because the customer has free reign with regards to transporting the shirt inside the store)

Conclusion/Holding: Based on the above rules, the judgment is affirmed.






Rex v. Bazeley p.968 England

Facts: The defendant, as a bank teller, received bank-notes from a customer for deposit. He placed the notes in his pocket.

Issues: Whether the possession of the servant was, under the circumstances of this case, the possession of the master.

Rule: A breach of trust cannot, the rules of the common law, be converted into a felonious taking.

Application: It was never in their custody or under the control of the bank. If, at the very time he received the note, he had no intent to steal it, it is no felony.

Conclusion/Holding: Pardon.



Contructive (justice would allow) possession

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