Definition of a crime: An act or omission and its accompanying state of

mind which, if duly shown to have taken place, will incur a formal and
solemn pronouncement of the moral condemnation of the community

Burden of proof
Theories of “reasonable doubt”
 Moral certainty: have an abiding conviction insofar as such a thing is
possible for humans/in life
 Firmly convinced: doesn’t have to overcome every doubt (again not
possible for humans); no real possibility of innocence
 No waver or vacillation: stable belief that doesn’t waver or vacillate
 No real doubt: not “beyond all possible doubt” (mathematically
impossible)

Owens v. State (1992) (man found drunk in his car in his driveway)
Rule: A conviction upon circumstantial evidence may be upheld if
circumstances are inconsistent with any reasonable hypothesis of
innocence
Sources of authority

Theories of punishment
 Dudley v. Stephens
o Issue: Is it acceptable to kill someone who is not attacking you
for your own survival?
o Rule: necessity is not a defense for murder
 Retributive: perpetrator deserves it; moral obligation on society to
make victim pay; proportionate; backwards-looking
 Utilitarian: punishment benefits society and government has an
obligation to protect society; forward-looking
o General deterrence: prevent others
o Individual deterrence: prevent same person from recitivism
o Incapacitation: remove from society to protect
o Rehabilitation: bettering the person so they don’t recommit
 Alternative
o Abolition
 NYPL § 1.05

Three doctrines of relationship between courts

and legislature
 Legality: No punishment without law (nulla poena sine lege); Can’t
punish someone unless there is a legislature-made law (NYPL
Section 5.05(3))
 Due process (14A)
 o Statute may not be vague (sufficient definiteness)
o Statute may not be overbroad (punish innocent conduct)
o Must be on notice (courts can’t create new crime)
 Lenity doctrine: When there’s ambiguity, benefit of the doubt to the
defendant
o MPC and NYPL do not follow
 Commonwealth v. Mochan: Even though there is no statute or exact
precedent to punish the defendant’s conduct (harassing lewd phone
calls), his acts injuriously affected public morality and thus constituted
a common law misdemeanor.

Statutory interpretation principles

 Three basic principles
o Plain Language: what does the text of the statute say?
o Intent: What did the legislation intend for the statute to cover?
o Purpose: what were the greater goals of the statute serving?
1. Statute = clear and unambiguous = apply it
a. Look at punctuation, positioning of mens rea term
2. Ambiguous = use statutory interpretation factors to determine intent:
a. Does it violate due process by being
i. Vague/not definite?
1. Can it be saved by interpretation?
ii. Overbroad?
 Statutory interpretation factors
o the whole, the phraseology, the words
o the law as it prevailed before the statute
o the mischief to be remedied
o the remedy
o the end to be accomplished
o the state in pari materia (preamble, title, etc.)
o legislative history, earlier statutes on the same subject, common
law at the time of the statute and interpretations of similar
statutes
o words are not presumed to be redundant
 Keeler v. Superior Court: causing a miscarriage of a fetus via assault is
not murder under statutory interpretation principles and cannot be
enacted as a common law crime
 In In Re Banks, the due process challenge is based upon
vagueness/definiteness and overbreadth
o Statute: “Any person who shall peep secretly into any room
occupied by a female person shall be guilty...”
o Court reads “secretly” as the wrongful spying upon a female with
the intent of violating the female’s legitimate expectation of
privacy.”
 o Used statutory interpretation to make definite and was not
overbroad due to “secretly”
 Muscarello v. US: “carrying” a firearm includes in a vehicle, according
to statutory interpretation

Elements of a crime
Rule: To prove someone is guilty with a criminal charge the prosecution has
the burden of proving beyond a reasonable the elements of the offense BRD.
The elements of a crime are (1) actus reus, (2) mens rea, and (3) causation
(where a result is required).

Actus Reus
Classifications / material elements
Result crimes: prohibition against unwanted outcome (e.g. death of a
person)
Conduct crimes: prohibition against specific behavior (DUI, solicitation to
murder)
Attendant circumstance: condition that must be present in conjunction with
prohibited conduct or result

Voluntariness
Model Penal Code §2.01(1)-(2) New York Penal Law §15.00
1. A person is not guilty of an offense “Voluntary act” means a bodily
unless his liability is based on movement performed consciously
conduct that includes a as a result of effort or
voluntary act or the omission determination, and includes the
to perform an act of which he is possession of property if the actor
physical capable: was aware of his physical
2. The following are NOT voluntary possession or control therefor for
 acts within the meaning of this
Section:
1. A reflex or convulsion;
2. A bodily movement during
unconsciousness or sleep;
3. c. Conduct during hypnosis
sufficient period to have been able
or resulting from hypnotic
to terminate it.
suggestion;
4. d. A bodily movement that
otherwise is not a product
of the effort or
determination of the actor,
either conscious or habitual

 Rule: The prosecution must prove beyond a reasonable doubt

some volitional act is done
o A bodily movement performed consciously as a result of the
effort or determination (NYPL, Decina)
o Compelled by law enforcement = not voluntary (Martin v. State,
drunk man brought to highway)
o Sleepwalking and unconscious acts are not voluntary
o An unconscious act is voluntary if the individual has knowledge
that it could happen due to prior knowledge and awareness that
the risk exists (Decina, car crash seizure)
 Martin v. State: drunk man arrested, brought to highway; cannot be
held liable for involuntarily committing a crime/taken by law
enforcement
 Decina: man with history of seizures had a seizure while driving and
killed people, was guilty
Omissions
People v. Beardsley: one is not under a legal duty to care for a houseguest
such that the failure to do so makes one criminally punishable for any
resulting harm. A person does not owe a legal duty to seek medical care for a
companion.

Barber v. Superior Court (1984): doctors’ omission to continue treatment

under the circumstances, though intentional and with knowledge that the
patient would die, was not an unlawful failure to perform a legal duty
 Court balances burdens and benefits in deciding whether a physician
owes a patient in a comatose state from which meaningful recovery of
brain function is unlikely
Duty
 Statute imposes a duty
  One stands in a certain status relationship to another (e.g. parent-
child)
 One has assumed a contractual duty to care for another (e.g. you’re
a lifeguard)
 One has voluntarily assumed the care of another and so secluded
the helpless person as to prevent others from rendering aid
 Where one creates a risk of harm to another (e.g. you shove
someone in the water)

Mens Rea
Culpability: broad; any blameworthy state of mind (doesn’t matter if it was
intentional or reckless)
Elemental: narrow; mental state specified in the statute (e.g. only
intentional, not reckless)
Regina v. Cunningham: malice as an elemental (narrow) interpretation:
intentionally or recklessly; jury should have determined whether he know gas
meter removal might cause injury but did it anyway
Mens rea terms
Intentional
 Having a conscious objective
 May be transferred
 General intent: only mental state about the social harm e.g.
“intentional application of force upon another”; any mental state that
relates solely to the acts that constitute the criminal offense
 Specific intent: special mental element above and beyond mental
state w/r/t actus reus
o Intention to commit future act e.g. possession of marijuana
“intent to sell”
o Special motive e.g. offensive contact “with the intent to cause
humiliation”
o Awareness of attendant circumstance e.g. intentional sale of
obscene literature to a person “known to be under the age of 18
years”
People v. Connelly: intent can be inferred by the circumstances surrounding
the crime (lack of warning, strong force used)

Knowingly
Awareness
 Two interpretations of willful
o Intentionally committed prohibited act
 o Intentionally performed prohibited act in bad faith, wrongful
motive

State v. Nations: MPC “knowingly” includes willful blindness but MO is only

actual knowledge

NYC: you have to actually know; MPC if you should have known; willful
blindness is not a defense

CLASS HYPO: Professor Mott was given a box by a person who is a known
drug dealer. She was told don’t look at the box. She carried the box in the car
with her across state lines. She would be convicted under Model Penal Code
definition because of the high probability of occurrence

Recklessly
Negligence

NYPL 15.05 MPC 2.02

Intentionally: conscious Purposely:
objective is to cause such result conduct or a result: conscious
or to engage in such conduct. object to engage in conduct of that
nature or to cause such a result;

(attendant circumstances: aware

or believes or hopes that they exist.
Knowingly: aware that his Knowingly:
conduct is of such nature or that conduct or the attendant
such circumstance exists. circumstances: aware that his
conduct is of that nature or that such
[defense of willful denial works] circumstances exist; and

Knowledge by default doesn’t result: practically certain that his

apply to age of child or weight of conduct will cause such a result.
drugs
[Willful denial doesn’t work]
Recklessly: aware of and Recklessly: consciously
consciously disregards a disregards a substantial and
substantial and unjustifiable unjustifiable risk… disregard
risk & conduct is a gross involves a gross deviation from the
deviation (voluntary intoxication standard of conduct that a law-
not defense) abiding person would observe
Criminal negligence: fails to Negligently: should be aware of a
perceive a substantial and substantial and unjustifiable risk
 unjustifiable risk; failure to
perceive is gross deviation from
failure to perceive is a gross
reasonable person deviation from what a reasonable
person would observe.
Recklessness vs. Knowledge: awareness of risk vs. awareness of certainty

Transferred intent: a mischievous fiction

Statutory interpretation
 If there’s no mens rea and not interpreted as strict liability:
o MPC: can’t read in negligently
o Any term

 Always think of overall goal of determining legislative intent
o As a guideline:
 Presume it modifies all terms (NYPL Sec. 15.15(1); MPC
2.02(4))
 Mens rea less likely to modify attendant circumstances
State v. Miles: does mens rea apply to every element of statute? In this case,
no, didn’t need to know specific drug trafficked

Strict liability
 NYPL 15.15(2)/MPC 2.02(3): no strict liability unless statute clearly
defines legislative intent to negate mens rea
 Some crimes are so important, encourages people to be extra careful
to follow laws
 Courts dislike because offends principles of punishment
 Covers things like
o Public welfare (environmental)
o Punishments aren’t severe, administrative (parking tickets)
o Difficult to determine mens rea (parking ticket0
Factors for finding strict liability
 Statutory interpretation principles
o Congressional purpose
 Statute omits mention of mens rea
 Policy (e.g. public welfare offenses)
 The standard is reasonable and proper to expect people to follow
 Penalty is relatively small
 Crime does not carry heavy stigma
 Common law treatment of the crime
Morisette v. US: man took gun casings from federal land, federal statute
lacking mens rea was not strict liability due to legislative history combining
other laws that did have mens rea
Staples v. US: mens rea is a requirement for knowing your weapon was of
the type that required it to be registered, not strict liability
Garnett v. State: strict liability for statutory rape where defendant is mentally
incapacitated still holds
Mistake of fact
Both MPC and NYPL: when the defendant didn’t have the intent to commit
the crime because they did not understand a particular fact, mistake
negates mens rea

Common law: a defense if mistake of fact is reasonable

Navarro: took wood beams without intent to steal, thought they were
abandoned; mistake of fact is defense as long as it’s good faith, even if
unreasonable

CLASS HYPO: Professor was walking through a graveyard on the way home
from a baseball game. He hears a boo. He truly believes in ghosts and thinks
this person is a ghost and hits them with his baseball bat. The person dies
and he was charged with intentionally killing a human being. What would be
his defense? He didn't intend to kill a human being (mistake of fact). There's
no mens rea because he mistakenly thought the person was a ghost. He
could be found not guilty if the jury believes him
Mistake of law
Generally not an excuse unless founded on official statement of law
Penal Law statutory defense
Marrero (peace office unregistered gun)
NYPL: not relieved of criminal liability for mistake of law unless founded
upon an official statement of law contained in a statute or an
interpretation of the statute officially made
MPC: acts in reasonable reliance upon an official statement of law, afterward
determined to be invalid or erroneous
Constitutional/due process
Claim lack of fair notice if statute is unconstitutionally vague or denies due
process
Lambert: established element-like aspects:
 Malum prohibitum (bad for its own sake, not morally)
 Punished omission
 Duty to act based on status that wouldn’t alert ordinary person to the
need
Mens rea
Cheeks: mistake doesn’t have to be reasonable as long as it’s in good faith,
but reasonableness can inform whether it’s merely a disagreement

Causation
Actual Cause (cause-in-fact)
But-for
If the prohibited result would not have occurred in the absence of D’s
conduct makes conduct cause-in-fact (e.g. reckless driving kills a victim who
wouldn’t have died but-for D’s driving)
Acceleration
Rule: If there’s a lethal injury followed by D inflicting non-lethal
injury, D is an actual cause only if the second injury accelerates the
result
Oxendine: if they could prove his abuse had accelerated son’s death, would
have been an actual cause of death
Substantial factor
Replaces but-for in rare cases
Two-prong test:
1. two D’s acting independently
2. commit separate acts at the same time each of which alone is
sufficient to bring about result
Hypo: Dean Setty and Prof. Fernandez both shoot Prof. Kirk; they would both
be causes if each injury alone would have been fatal
Proximate Cause

 Rule: If there are no intervening causes, an act that is an actual cause

of the harm is also a proximate cause
 Fairness limitation for determining who among those that satisfy the
but-for standard should be held accountable for the resulting harm
 If an intervening act “breaks the causal chain” it is a superseding
cause, makes D not liable – only if it was not foreseeable
 Factors
o Not a proximate cause/break the chain
 Apparent safety
 Voluntary human intervention
o Towards a proximate cause/doesn’t break the chain
 De minimus: minor contribution to overall result
 Omissions
 Intended consequences
 Rideout: V survives car crash but walks into road and gets hit; one
coincidental factor (car coming along was foreseeable) and one
responsive (walking into road is unforeseeable and abnormal);
prioritizes apparent safety and free/deliberate/informed
 Velazquez: V driving back after race was coincidental and
unforeseeable
  Rose: conviction requires concurrence of the elements: actus reus and
mens rea (and causation, where relevant) need to occur at the same
time/with respect to the same event

Homicide crimes
Murder
Common law MPC 210 NYPL 125.25
(malice
aforethought)
Intentionally: aware Criminal homicide: 2nd degree: Intent to kill
that death would Purposefully,
result, even if not knowingly, or DOES NOT CONSIDER
desire for result recklessly w/extreme PREMEDITATION/DELIBERAT
indifference to ION
human life
Intentionally causing
serious bodily injury
Depraved heart: 210.2 reckless + Reckless with depraved
unintentional but extreme indifference indifference
reckless (Knoller dog
mauling)
Implied malice: shown
by circumstances
conscious disregard
for life, wanton
disregard

Manslaughter
Common law MPC 210.3 NYPL 125
(without malice)
Intentional Voluntary: sudden (EED with 1st degree
heat of passion with reasonable manslaughter:
adequate explanation  EED
provocation for  Intent to
reasonable man Not negated by cause
1. Sudden heat cooling off serious
of passion injury
2. Caused by causes
adequate death of
provocation third
3. Before person
opportunity to
 cool
4. Causal
connection
between
provocation
and act

Unintention Involuntary:  Reckless  Reckless

al Criminal  Negligent  Criminally
negligence: wanton homicide (?) negligent
and reckless
conduct (?)
Williams (child
toothache): should
have known?

Intentional
Eulo: death can be brain death
Guthrie: premeditation ≠ intentional, has to have enough time to afford a
second look (dishwasher stabbing)
Midgett: have to premeditate/deliberate for 1st degree murder, not enough to
abuse and accidentally cause death (father abuses son to death)
Forrest: premeditation caused by statements, even if seems like you aren’t
happy (son kills dying father to avoid his suffering)
 Factors for determining premeditation:
o No provocation by V
o Conduct and statements by D
o Threats and declarations by D
o Ill-will between parties
o Lethal blows after V is helpless
o Brutal manner
o Nature and number of wounds

Manslaughter
 A partial defense – doesn’t absolve of all crimes
o Justification defenses: approval of actor’s conduct, as in self-
defense
o Excuse defenses: D did wrong act but is not morally
blameworthy, as in insanity defense
Girouard: army husband killed wife after insults; rule: words alone not
enough for manslaughter defense
Reasonable person: Reasonable man is a person having the power of self-
control to be expected of an ordinary person of the sex and age of the
accused, but in other respects sharing such of the accused characteristics
as they think would affect the gravity of the provocation

EED
Reduces murder to manslaughter
1) actual subjective extreme emotional disturbance (threshold finding
assessed by judge AND
2) reasonable explanation or excuse (assessed by jury)

Casassa: EED defense failed b/c although he had actual state, wasn’t
reasonable

Unintentional

Inchoate offenses
Accomplice