Criminal Law

General
1. Elements of a Crime
a. Actus Reus: guilty act
b. Mens Rea: guilty mind
c. Concurrence: physical act and mental state existed at the same time.
d. Harmful Result and Causation
2. Three types of Issues that come up in Court:
a. Was the jury properly instructed? - LEGAL
b. Did the judge admit or exclude evidence that it shouldn’t have? - LEGAL
c. Was there sufficient evidence? – FACTUAL

Punishment
For a question about punishment, it might be good to not only revisit the chapter on this in the supplement, but also the
mens rea chapter since it talks about how the different states of mind relate to punishment.

Deterrence
1. General: for would be offenders. Punishment deters persons other than the criminal from committing
similar crimes for fear of incurring the same punishment
a. This depends on the perceived severity of penalty x the probability of getting caught; does not
necessarily relate punishment to crime.
2. Specific: Punishment deters the criminal from committing future similar crimes. Longer, harsher
sentences do not necessarily make stronger specific deterrence.

Incapacitation
Remove offender from society to make society safer.

Rehabilitation
Imprisonment provides the opportunity to reform into a person who, upon return to society, will conform
their behavior to societal norms. This includes training, education, service, therapy, early release and
reintegration.

Retribution
Punishment is imposed to vent society's sense of outrage and need for revenge; wrongdoer deserves
punishment. Indignation at violation of society's norms, just deserts. An end in itself. Highly punitive in
nature.
 Actus Reus
Voluntary Act
A willed bodily movement. Did the person actually DO the thing the statute says is punishable?

1. Examples of involuntary acts that are not punishable include conduct that is not of the actor’s
determination (A shoving B into C; B is not liable); reflexive or convulsive acts; acts performed while
unconscious or asleep.

Omission
A failure to act. There must be a duty to act before there can be an omission.

1. What creates a legal duty?

a. Contract
b. Statute
c. Status Relationship
d. Someone provides voluntary care & isolates the person so that no one else can interfere.
e. Creation of peril
2. Knowledge of facts: the duty to act arises once the defendant becomes aware (e.g. a parent has to know
their child is drowning before they have a duty to act.) In some situations, however, the law imposes a
duty to learn facts (e.g. a lifeguard asleep on the job still has a duty to save someone drowning).
3. Reasonably Possible to Perform: it must be possible for defendant to perform the duty or obtain help in
performing it (e.g. a parent who can’t swim would not have a duty to save his drowning child).
4. Note on bystanders: if they have no legal duty to act, then they don’t have to do anything. However,
there is a multi-factor test to determine if a bystander is actually culpable (look at Davis case):
i. Presence
ii. Relationship
iii. Encouragement

Possession as an Act
Physical control doesn’t have to be proved if the contraband is located in an area of the defendant’s
“dominion and control.”

b. State of Mind Requirement: sometimes, it’s enough that the defendant knows they possess
something even if they don’t know what it is; some statutes and the MPC say that the defendant
must know the nature of the item they possess.

Mens Rea
Mens rea is required to distinguish inadvertent or accidental acts from those performed by one with “a guilty
mind.” The latter type of acts is more blameworthy.

Specific Intent vs. General Intent (Common Law Distinctions)

1. Specific intent: if the definition of a crime requires not just the doing of the act, but the doing of it
with a specific intent or objective, then the crime is a “specific intent” crime.
a. The manner in which an act was done may provide circumstantial evidence of intent.
b. Some defenses, like voluntary intoxication and unreasonable mistake of fact, only apply to
specific intent crimes.
c. Enumeration of specific intent crimes:
i. Solicitation: intent to have the person solicited commit the crime.
ii. Attempt: intent to complete the crime.
iii. Conspiracy: intent to have the crime completed.
iv. First degree premeditated murder (where so defined by statute): premediated intent to
kill
v. Assault: intent to commit a battery
vi. Larceny & robbery: intent to permanently deprive another of his interest in the property
taken.
vii. Burglary: intent at the time of entry to commit a felony in the dwelling of another.
viii. Forgery: intent to defraud
ix. False pretenses: intent to defraud
x. Embezzlement: intent to defraud
2. General Intent: awareness of factors constituting crime. Generally, all crimes require this. Defendant
must be aware that they are acting in the proscribed way and that any attendant circumstances
required by the crime are present (or at least aware of a high likelihood that attendant circumstances
are present).

***IMPORTANT: the MPC advocates for the elimination of this ambiguous common law distinction. Instead of
the two types of intent, the MPC proposes four categories of mental states seen below.

Mental States (Model Penal Code)

1. Purposeful: actually wanted to commit the act or bring about the result.
2. Knowledge: knew that it was virtually certain the result would occur.
1. Deliberate avoidance of knowing is STILL knowing. Some jurisdictions find this controversial,
however, because how do we know they deliberately avoided knowing? They might have just
been careless in not confirming something, so it doesn’t seem right to give them a “knowing”
mental state when they were just negligent.
3. Recklessness: did not know for certain the result would occur, but knew it was a risk and acted
anyway.
4. Negligence: did not think of the risk but should have been aware if they were using common sense.

Strict Liability
 Unique because this is an absence of mens rea. The person doesn’t realize the risk and wouldn’t have
realized the risk even if they had used common sense. Also known as public welfare offenses. Generally
involve low penalty and not regarded as involving significant moral impropriety. If no mental state is
expressly required by the statute, that doesn’t automatically make it SL; the courts may still interpret the
statue as requiring some mens rea, especially if the statute appears to be a codification of a traditional
common law offense or if the statue imposes a severe penalty.

1. Pure: prosecution doesn’t have to show mens rea for ANY elements.
2. Impure: mens rea will have to be shown for at least one element; at least one element lacks mens rea.

General Notes on State of Mind

1. State of Mind Applies to all Material Elements of Offense: Statutes often establish a culpable state of
mind without specifying that it is required for all elements of the offense. In this case, the state of mind
applies to all material elements unless otherwise stated.
a. Example: in a statute that imposes criminal liability on anyone who “knowingly makes a sale of
intoxicating beverage to a minor,” the MPC would require knowledge for each element. Thus, if
the defendant can show that they did not know the sale took place, did not know that the
beverage was intoxicating, OR did not know the purchaser was a minor, they can avoid liability
because “knowing” did not apply to each element.
2. State of Mind Where Not Specified: Recklessness
a. If the statute is not a strict liability offense and there is no state of mind specified, recklessness
is the minimum per the MPC.
b. In Kentucky, there is NOT a default mens rea you can apply across the board. If the statute is
silent on mens rea, then the court will determine what the mens rea is on a case-by-case basis.
3. Higher Degree of Fault Suffices
a. States of Mind are a hierarchy, so showing of a higher state of mind automatically satisfies
lower state of mind.
4. Transferred Intent: if a defendant intended a harmful result to a particular person or object and, in
trying to carry out that intent, caused harm to someone/something else, his intent will be transferred
from the intended person/object to the one actually harmed. Most commonly applies to homicide,
battery, and arson.

Mistakes
If a mistake of fact or law negates mens rea, then the defendant is not guilty. In a mistake, the person didn’t
intend to commit a crime. They were either wrong about the circumstances of facts or wrong about the
circumstances of law.

MPC § 2.04 & 2.02

§2.04: Mistake of Fact and Mistake of Law are treated the same. A mistake is a defense if it negates the
mens rea for a material element of the offense.
 (1) Ignorance or mistake as to a matter of fact or law is a defense if
a. The ignorance or mistake negatives the purpose, knowledge, belief, recklessness, or negligence
required to establish a material element of the offense; or
b. The law provides that the state of mind established by such ignorance or mistake constitutes a
defense.

*Whether a crime negates the mens rea depends largely upon what mens rea is necessary for the crime. A
mistake could negate recklessness, for example, but not negligence. (See car example in notes).

§2.02: If you make a mistake about the elements of the law you’re being prosecuted under, that is not a
defense.
(9) Neither knowledge nor recklessness nor negligence as to whether conduct constitutes an offense or as to
the existence, meaning, or application of the law determining the elements of an offense is an element of such
offense, unless the definition of the offense or the Code so provides.

*Mistake of law is valid if you rely on a public official responsible for interpreting laws, but NOT if you rely on a
private attorney.

Common Law Distinctions

General Intent Specific Intent Strict Liability
Defendant’s mistaken belief has to Defendant’s mistaken belief merely Mistake of fact is never a
be reasonable as an excuse. has to be genuine, even if it’s defense because S.L. do not
unreasonable. As long as the jury have mens rea.
believes that the defendant isn’t
making this up to get out of trouble,
they should acquit.

Causation
There must be a but-for cause and a proximate cause.
1. But-for cause: the result would not have occurred “but for” the defendant’s conduct. But-for cause is
not enough, however, because MANY things can be but-for causes, but they’re not necessarily close
enough to the event on the chain of causation for liability to be reasonable.
a. Acceleration: an act that hastens an inevitable result is considered a legal cause of that result. It
may not truly be a “but-for” cause because the result might have happened anyway, but you
would still be liable for making it happen sooner rather than later.
b. Concurrent Acts: If two people act simultaneously to bring harm, then neither action is really a
but-for cause. By that line of thinking, both should get off the hook. Therefore, courts
determine that BOTH acts are sufficient for causation.
i. Substantial Factor: we do not require there to be one true “but-for” cause when we
have multiple causes and each is a substantial factor.
 2. Proximate Cause: much closer in the chain of causation. The defendant is responsible for all results
that occur as “natural and probable” consequence of his conduct, even if he did not anticipate the
precise manner in which they would occur.
a. Foreseeability: to be proximate, it must be foreseeable for that outcome to occur.
b. Directness: there cannot be an intervening cause that breaks the chain of causation.
i. An intervening act will shield the defendant from liability if the act is a mere coincidence
or is outside of the foreseeable sphere of risk created by the defendant’s act. If the
“intervening acts” are done in response to the victim’s conduct, then they’re not truly
intervening.
1. Do you consider pre-existing medical conditions to be an intervening act? I don’t
think so because you take the victim as you find them.

Attempt
Definition
A criminal attempt is an act that, although done with the intention of completing a crime, falls short of
completing the crime. An attempt consists of two elements:

i) A specific intent to commit the crime. Regardless of the mental state required for a completed
offense, an attempt always requires specific intent. For example, attempted murder requires
specific intent to kill another person even though the mens rea for murder itself does not
necessarily require a specific intent to kill.
i. Attempt to commit crimes requiring recklessness or negligence is logically impossible.
ii. Attempt to commit strict liability crimes requires intent. Strict liability crimes do not
require criminal intent, but the defendant must act with the intent to bring about the
proscribed result.
ii) An overt act in furtherance of that intent.
i. Dangerous proximity test: common law approach. The act is evaluated based on how
close the defendant came to completing the offense, and attempt requires an act that is
“dangerously close” to success. It doesn’t matter how many steps you took toward the
goal if you were still far from completing it.
1. Controversial because if you require them to be very close to completion, police
can’t get a conviction if they stop them too soon. “Dangerously close” literally
puts the potential victim in greater danger.
ii. Substantial Step Test: model penal code approach and the majority rule today? The
defendant must take a substantial step in a course of conduct planned to culminate in
the commission of the crime.
1. To be a SUBSTANTIAL step, it must strongly corroborate the actor’s criminal
purpose. If the act is ambiguous or could easily be explained away by innocent
means, then it may not be substantial.
 Impossibility
Factual impossibility is no defense. We say that, if the circumstances had been as the defendant believed
them to be, what the defendant set out to do would be a crime.

Legal impossibility is a defense. If someone does X, thinking that X is a crime when really it’s not, we don’t
charge them with attempt. You can’t change an otherwise innocent act into an attempt just because of a
defendant’s mistake of law.

Rape
3 Reforms in Rape Law
1. Lower evidentiary barriers: plaintiff’s testimony alone used to not be enough. Further, the plaintiff’s
reputation/sexual history were considered. Juries were also instructed that rape testimonies were easy
to fabricate. This is not the case now.
2. Changes in how we define rape: it’s now a genderless crime, we’ve removed marital exemptions, and
it can include more than just sexual intercourse.
3. Redefining core elements between force and non-consent: many states no longer require the plaintiff
to show that they resisted. Rather, the burden is on the defendant to show that there was affirmative
consent.
a. Under common law, victims were expected to show the utmost resistance. Basically, if there
was anything they DIDN’T do to prevent the rape, then they didn’t resist enough. Courts did
away with this for many reasons, some being that it’s natural for victims to “freeze” during
attacks and that physical resistance puts the victim in greater danger of violent, physical harm.

Mens Rea
Rape is the only type of crime that doesn't incorporate mens rea because rape is the only crime where we
consider consent. In no other crime would consent even be relevant (would you ever consent to murder?
Consent to robbery? Etc.) If you allow defendant's mental state to be a defense, then you're saying that the
complainant's mental state doesn't matter. Since you have to balance both mental states, it has a unique
approach. And it's something that states are still working out.

A note on intoxication: If it's a crime of intent/knowledge, intoxication can prevent the person from forming
the required mens rea. It doesn't work as a defense for a crime of recklessness/negligence.

In Kentucky
1. KRS 510.020
You must show non-consent.
2. KRS 510.010
Force must be present, but you don't have to show resistance to show the force.
*Even though resistance is not required, it’s helpful as evidence of non-consent. That is why
prosecutors will look for it even though it’s not technically necessary.
Intrinsic force: act of penetration alone is enough for force.
 Extrinsic: force in addition to penetration. Does not have to be significant or violent. This is the
common view. Unclear which is the view in KY, but presumably extrinsic?

Threats
 *Yates v. Commonwealth shows that forcible compulsion can be shown by 1) act of physical force or 2)
threat of physical force. But the threat of force must be immediate. Compare to MPC; under the MPC,
the threat must be severe (threat of death, severe pain, etc.). Is this the same in KY?
 Also note Mlinarich: if you threaten to do something you have a legal right to do, then that is
technically acceptable even though it’s morally repugnant.

Mistake as a Defense
 Jacobs v. Commonwealth shows us that an unreasonable mistake is not a defense.
 We do NOT have a precedent for reasonable mistake of fact as a defense in Kentucky.

Lack of Effective Consent

Consent, if given, would ineffective if:

1. Intercourse was accomplished by actual force.

2. Intercourse was accomplished by threats.
a. Placing the victim in fear of great and immediate bodily harm. Consent obtained by threat is not
effective consent. The failure of victim to “resist to the utmost” doesn’t change the fact that it’s
rape because resistance would probably have been prevented by the threats.
b. Note the Mlinarich case where threatening someone with something they had a legal right to
do was technically okay although morally repugnant to most people.
3. Victim was incapable of consenting.
a. Could be due to unconsciousness, drugs/alcohol, mental condition.

Statutory Rape
Victim is below the age of consent, so consent/willing participation does not count.

Mistake of fact (mistake of the victim’s age) is generally not a defense because statutory rape because it’s a
strict liability crime. Maybe a reasonable mistake could if the defendant reasonably believed the victim was
older…

Homicide Under Common Law

3 categories (see supplement notes for more details)
1. Murder
2. Voluntary Manslaughter: similar to murder but it’s lesser because it’s a provoked passion crime.
Combines both objective and subjective elements:
a. Reasonable and adequate provocation. Words are usually not enough, but Kentucky has hinted
that words might be enough.  Since the KRS models the MPC, where does this fit in alongside
EED?
 b. Insufficient Cooling-off time
c. Actual passion caused by the provocation
d. No actual cooling off
3. Involuntary Manslaughter

Homicide under the KRS

The KRS uses the MPC as a framework. Below are the different categories of homicide in the KRS.

Murder: 2 types
1. Intentional Murder: intending to cause the death of someone.
a. EED can be used as a defense to this, mitigating the crime to 1st degree manslaughter.
2. Wanton murder: wantonly engaging in conduct that puts someone in grave risk and causes death.

*Note that these are two types, not degrees. They are both capital offenses and treated the same. This means
that the death penalty could technically be used for either, but you’re probably only going to see it for
intentional.

*Also note that Kentucky does not require premeditation for murder.

Manslaughter: 2 degrees
1. 1st degree manslaughter
a. Intent to cause serious physical injury but cause death instead.
b. EED defense (modern approach) or provocation (historically?)
c. Intentionally abuses or knowingly lets someone else abuse and cause the death of someone
they have custody of who is under the age of 12, physically helpless, or mentally helpless.
nd
2. 2 degree manslaughter: wantonly causing someone’s death (the risk is not grave like it is for wanton
murder).

Reckless Homicide
Recklessly causing death (“negligent” in the MPC): not aware of any risk but should have been aware, and
death resulted.

Felony Murder
Not technically recognized. However, extreme recklessness (so the second type of murder here) is presumed if
homicide occurs during a dangerous felony. In this case, the jury may, but need not, infer extreme
recklessness. So this is a complicated approach.

Extreme Emotional Disturbance

Analogous to Common Law Adequate Provocation?

KRS describes this as… “Extreme Emotional Disturbance for which there was a reasonable explanation or
excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s
situation under the circumstances as the defendant believed them to be.”
  “a person in the defendant’s situation…” gives this a more subjective approach.
 Kentucky DOES require that the triggering event must be sudden and uninterrupted. If the defendant
has a while to think about it/stew over it, then they lose their defense. (See Foster v. Commonwealth).

Accomplice Liability
An accomplice is one who aids, abets, encourages, or assists another in performance of a crime and will
therefore be liable for that crime. You cannot be liable for “complicity” because technically complicity is not a
crime in itself; rather, it is a means of liability.

Accomplice Liability Generally (from cases)

 Some courts have found that to truly aid and abet, there must be a true act. Mere presence or
anything passive is not enough.
 An accomplice’s actions don’t necessarily have to be a true but-for cause. If they are aiding something
that likely would have happened anyway, even a small act of facilitation on their part makes them
liable.
o Think of the Tally case where, Ross was probably going to die regardless, but Tally made it a
little more likely that he was going to.

Accomplice Liability in Kentucky: KRS 502.020

 The mens rea is intent/purpose. Knowing is not enough to be an accomplice if you don't have the
intent.
  Accomplice liability can also be found in situations where one attempts to aid but doesn’t no
assistance is actually rendered.
o Example: you try to give your friend a gun to commit a crime but get a flat tire on the way
there. It counts because you attempted aid.
 Accomplice liability can also be found in situations where one attempts to aid and successfully aids, but
the crime is not completed for other reasons.

Conspiracy
Elements
1. An agreement
2. An overt act.
a. Only has to be by one, not all, of the conspirators.
b. Note that this is not necessarily a substantial step like in attempt.

*The Hearsay Exception

Pinkerton
Definition from Alvarez:
Under Pinkerton, each member of a conspiracy is criminally liable for any crime committed by a coconspirator during
the course and in furtherance of the conspiracy, unless the crime “did not fall within the scope of the unlawful
project, or was merely a part of the ramifications of the plan which could not be reasonably foreseen as a necessary
or natural consequence of the unlawful agreement.”

Under Pinkerton, you are liable for…

1. The conspiracy
2. The crime you and your co-conspirators intended to commit (the target offenses)
3. All crimes that occurred that were foreseeable (if you conspire with others, you could be liable for crimes
committed by your co-conspirators whether you intended for those things to happen or not).

This is controversial because it is so broad.

MPC & KRS

KRS 502.020.
(1) Uses Complicity law to reject Pinkerton through the backdoor. Requires intention to promote commission of the
offense. Foreseeability does not matter.
A. Solicits, commands, or engages in a conspiracy. We see here that they use complicity to explain when a
coconspirator is liable.

So the KRS requires:

1. Intent for the substantive crime.
a. Mere knowledge is not enough; however, we can use knowledge to show intent. See Lauria.
2. Overt act

Self-Defense
Elements
Must have a reasonable belief that you need to use force (deadly or non-deadly) to defend yourself against imminent,
unlawful force (deadly or non-deadly).

Many courts have focused on imminence as the key issue; however, that doesn’t help us in cases like Norman
where the harm was not imminent but rather inevitable. Putting a greater focus on necessity rather than
imminence, viewing imminence as less essential, is a way in which self-defense has evolved. What if we had a
statute that allowed for the threat to be imminent or inevitable?

Perfect vs. Imperfect Self-Defense

Perfect self-defense: you can prove you were totally justified and get acquitted.
Imperfect self-defense: defendant has a genuine belief, but that belief was unreasonable. The best you can get is a
mitigation of the verdict.

Retreat (Generally)
 Comes out of the idea that your defense must be necessary. If you can retreat, maybe it's not necessary.
 For non-deadly force, you don't have to retreat.
 For deadly force, some jurisdictions have stand your ground doctrine and some say you need to retreat if you
are aware of a place of complete safety (minority).
 Castle doctrine: you NEVER have to retreat in your own home.
  Making a lawful arrest: police officers, for example, do not have to retreat when making an arrest even if they're
in a retreat jurisdiction that says you normally have to retreat before resorting to deadly force.
 Rape or robbery: you never have to retreat if you're being raped or robbed.

Aggressor/Escalation
 If the aggressor fully withdraws from the conflict, the other person cannot enact self-defense. If the other
person uses force against the initial aggressor once he already withdrew, then the other person now becomes
the aggressor.
 If the aggressor enacts non-deadly force and the victim responds with deadly force, the victim has escalated the
situation. The original aggressor is now allowed to defend himself with deadly force against the original victim's
(now aggressor) use of deadly force.

KRS
 KRS requires reasonableness in self-defense. If you are unreasonable in your belief, you won't have a complete
defense.
 Castle doctrine: you do not have to retreat in your own home. KRS 503.055. Stand your ground doctrine extend
the castle doctrine to anywhere.
o The problem for Kenneth Walker is 503.055(d) because that says when the force is used against a peace
officer and the officer identifies themselves, then the person using force knew or reasonably should
have known that the person attempting to enter was a peace officer.