Criminal Law Outline

Professor Chanenson, Dempsey, and Lister Fall 2016

I. Theories of Punishment (What Justifies Criminal Law &

Punishment?)
A. Retributivism
a. Punishment for a crime is moral good bc crime is a moral wrong
b. Moral/philosophical theory of criminal punishment

B. Consequentialism
1. Deterrence
a. Social costs and benefits of punishment
b. Crime is socially destructive and socially destructive behavior is
best reduced by raising the price those who engage in such
behavior must pay
c. economic/empirical theory of punishment
d. General deterrance- preventing other people from committing
same crime as person being punished
e. Specific detterance- preventing defendant from committing future
crimes

2. Rehabilitation
a. Criminal punishment not used to punish criminals but to treat
them, so that they do not commit any more offenses after they’re
released
b. Medical/psychiatric theory of punishment
c. Originally not embraced, but has become more popular in 20th and
21st centuries

3. Incapacitation

a. Restraint
b. Can be imprisonment or probation
i. Probation may be harder than prison as criminals lack
skills required to uphold probation requirements

c. Prevents criminal from committing future crimes

C. Expressive Theories of Punishment

a. Punshment’s function is to communicate a message about the
offender’s wrongdoing to society as a whole
II.Principles of Statutory Interpretation
a. Goal-to determine the intent of the legislature that enacted a statute
i. Language of statute helps with this
ii. Legislative history helps
iii. Examine more broadly the overall statutory framework in which
the statute resides
iv. Apply rules of construction:
1. expressio unius est exclusio alterius: items not mentioned in
statute are not covered by it
2. Ejusdem generis: general items listed in a statute should be
interpreted in light of specific terms in that same list
3. Presumption of constitutionality: statutes should be
interpreted in such a way as to fit within constitutional
constraints
a. AKA constitutional avoidance- interpreting in a way
to avoid constitutional concerns
b. Judges and Legislators share power
c. Line usually drawn between criminal liability and less liability, rather than
some liability and none
i. Lesser included offenses
1. ex. Assisted suicide is lesser included offense of murder
d. Distinguishing cases- way to preserve precedent, but still sway from it
e. Statutory application: conclusion court makes regarding legal effect of a
statutory provision
i. Range of cases it covers
f. Methods of interpretation:
i. Plain meaning textualism: literal meaning of words
1. Emphasizes importance of separation of powers
ii. Intentionalism: pay attention to intent of legislators
1. What purpose of the law is
2. Look at legislative history to determine intent
g. Methods of application:
i. Narrow
1. Statute reaches narrow range of cases
2. Will usually favor defendant
ii. Broad
1. Statute reaches broad range of cases
2. Usually favors government, but it depends on the statute
 3. Favors defendant if it is a broad application of a lesser
included offense

III.Constitutional Limits on Criminal Law1

A. Proportionality
a. Arises out of 8th amendment’s “cruel and unusual punishments clause”
b. Must be a correspondence between severity of crime and severity of
punishment
c. Used by SCOTUS to prevent death penalty in certain cases such as rape
d. Court less willing to invoke proportionality doctrine in cases that aren’t
capital offenses

B. Vagueness
a. “void for vagueness doctrine” arises out of DPC
i. Requires crimes be defined with enough precision to inform potential
offenders how to avoid punishment
ii. Requires crimes to be defined in a way that does not invite arbitrary
or discriminatory enforcement
b. Rule of Lenity: Ambiguity in statutes to be resolved in defendant’s favor
i. Price’s 3 meanings of the rule of lenity:
1. Lenity is dead last in interpretive hierarchy- it only comes into
play as a tie-breaker when other methods of interpretation fail to
provide an answer
2. Lenity limits non-textual, broad readings- prevents court from
reaching beyond exactly what’s stated in statute
3. Lenity compels courts to choose the narrowest interpretation
among plausible options- reqs. Courts to opt for most defendant-
friendly interpretation among plausible options

IV.Criminal Law - The General Part

A. Actus Reus
a. Conduct elements
a. Conduct must be voluntary
i. Otherwise unfair and no deterrent purpose
ii. Voluntary intoxication is a voluntary act
iii. Conduct under pressure is not always an involuntary act

1 Note: there are other constitutional limits on criminal law – eg, privacy/liberty rights, equal protection,
etc. – but the book only covers proportionality and vagueness. You’ll lean about other constitutional limits
in other classes – esp. Con Law II.
 b. May include failure to act
i. Omission liability- failure to act when legally required
to
1. Special relationship (Spouses, kids, etc)
2. Creation of peril
3. Duty to control another
4. Statutes may have requirements
5. Contracts
c. Martin v. State (1944)- Drunk at home, cop dragged him from
home to highway, charged him with being drunk on highway
(involuntary act)
d. Robinson v. California (1962)- cannot criminalize addiction
(involuntary)
e. Powell v. Texas (1968)- limits Robinson to just punishing
addiction, not acts done because of addiction

b. Circumstance elements
a. All elements of the crime must be met in order to meet the
Actus Reas requirement of that crime
b. Some circumstances give rise to strict liability
i. These circumstances would replace the mens Rea req.

c. Causation
a. Causation is the link between actus reas and mens Rea
b. In homocide cases gov. Must generally prove that it was the
defendant’s actions that caused the harm
c. In other cases, not as important to show causation

d. Consequence (“Result”) elements

a. If a crime is defined by a particular result, prosecution must
prove this result occurred
i. i.e. must be a dead body for murder
b. Defendant’s actions must be actual or proximate cause of the
consequence

B. Mens Rea
1. Common Law

a. General intent
a. Ordinary intent- intent to do that act that is deemed criminal
b. “As a general rule when the definition of a crime consists of
only the description of a particular act, without reference to
intent to do a further act or achieve a future consequence, we
ask whether the defendant intended to do the proscribed act.
 This intention is deemed to be a general criminal intent. When
the definition refers to defendant’s intent to do some further act
or achieve some additional consequence, the crime is deemed to
be one of specific intent”
c. If no mens Rea defined in statute, assume prosecution must at
least prove general intent

b. General intent “plus” (malice)

a. Increases intent, but not all the way to specific intent
b. Something extra the government must prove (in some cases)
other than just general intent
c. Usually has to do with either the risk of harm the defendant
wrongfully created or the deliberate commission of an act
known by the defendant to be wrongful.
d. Examples are criminal negligence or malice.
e. Malice in Fact: expressed malice, actual ill will, wish to vex,
defraud, injure, or annoy another
f. Malice in law: implied malice, intent to do wrongful act,
established by proof or presumption of law, circumstances can
imply malice
g. Fennel Malice:
i. Awareness by defendant that his conduct was wrongful
in general
ii. Either an intent to do the wrongful act despite such
awareness, or a conscious disregard of the risk that his
wrongful conduct created
h. Lamba Malice:
i. Wrongful intention without justification
i. Malice defintion:
i. Absence of all elements of justification, excuse, or
recognized mitigation and the presence of either an
actual intent to cause the particular harm that occurs or
harm of the same general nature; or the wanton and
willful doing of an act with awareness of a plain and
strong likelihood that such harm may result

c. Specific Intent
a. ∆’s intent to do some further act or achieve some additional
consequence
b. Must prove ∆ intended the harm
c. All attempt crimes require specific intent
d. Drunkeness is not a defense, but may negate specific intent
mens rea
2. Model Penal Code (MPC) 2.02

a. Purpose:

a. Conduct: ∆ acts purposely in his conduct if its ∆’s conscious

object to engage in conduct of that nature
b. Circumstance: ∆ acts purposely as to the circumstances if he’s
aware of the existence of such circumstances or believes or
hopes they exist
c. Result: ∆ acts purposely as to the result if its his conscious
object to cause such a result
d. Purpose = intention
e. Proof of higher culps. Will satisfy lower ones

b. Knowledge:
a. Conduct: if ∆ is aware conduct is of that nature
b. Circumstances: if ∆ is aware such circumstances exist
c. Result: If ∆ is aware its practically certain his conduct will
cause such a result
d. Willfully = knowingly
e. Ostrich rule: cannot deny having knowledge if you buried your
head in the sand
f. Knowledge satisfied by knowledge of high probability

c. Recklessness
a. Awareness of risk is the key factor
b. Conduct: ∆ consciously disregards a substantial and
unjustifiable risk
c. To prove- must prove ∆’s disregarding the risk was a “gross
deviation” from the standard of care that a reasonable “law
abiding” person would observe (MPC 2.02(2)(c))
d. If no culpability is provided- Prosecution must prove at least
recklessness

d. Negligence
a. Lack of awareness of risk is the key factor
b. Conduct: ∆ takes substantial and unjustifiable risk
c. To prove- must prove ∆’s failure to perceive the risk was a
“gross deviation” from the standard of care that a reasonable
person would observe (MPC 2.02(2)(d)).

e. Principle of Correspondence
a. For every element, should be corresponding mens Rea
i. No element should be based on strict liability
b. If only 1 culpability req. listed- assume it applies to all elements
 i. Unless buried in a “collateral mental state” (Trespassing
with intent to damage prop.)

C. Defenses
1. Mistake of Fact
a. Refers to ∆’s mistake regarding factual circumstances of crime
b. General intent crimes- intent can be negated by honest and
reasonable mistake of fact
c. Specific intent crimes- intent can be negated by honest mistake of
fact (even if unreasonable)

2. Mistake of Law
a. ONLY RARELY USE AS DEFENSE (when incorrect law came
from official source)
b. Refers to ∆’s mistake regarding whether conduct is illegal
c. MPC 2.04:
i. “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 a reasonable
reliance upon an official statement of the law, afterward
determined to be invalid or erroneous, contained in (i) a
statute or other enactment”

3. Self-Defense
a. Elements:
i. Accused must have reasonable grounds to believe himself
in apparent imminent danger of death or serious bodily
harm
ii. Accused must have in fact believed himself in this danger
iii. Accused claiming the right of self defense must not have
been the aggressor
iv. Force used must not have been unreasonable and
excessive- no more force than the exigency demanded
b. 3 versions of self defense:
i. NY Penal Law 1965
1. SD available even if mistaken, as long as its
reasonable
2. “Reasonable” takes into account life experiences
ii. Common Law
1. SD available if reasonable (full defense)
2. If unreasonable mistake (Partial defense)
 a. “Imperfect self defense”- voluntary
manslaughter
iii. MPC 3.04(2)(b), 3.09(2)
1. If mistaken belief is reckless- reckless manslaughter
(210.3(1)(a))
2. If mistaken belief negligent- Negligent
manslaughter (210.4)
c. Duty to Retreat
i. In general- ∆ must retreat before using deadly force if he
can do so w/ “complete safety” (MPC 3.04(2)(b)(ii) &
3.05(2)(a))
ii. Only applies if ∆ uses deadly force
iii. “Castle Rule”- narrow exception to duty to retreat
a. No duty to retreat in your own home (MPC
3.04(2)(b)(ii)(a))
b. Co-habitants- exception to castle rule
i. If ∆ and V live together- ∆ must
retreat, even from own home
c. Initial aggressor rule- exception to castle
rule
i. If ∆ is initial aggressor- ∆ must
retreat, even in own home 3.04(2)(b)
(ii)(a))
d. Stand your ground
i. Removes common law duty to retreat
1. Extends castle rule to everywhere
ii. If ∆ is initial aggressor- cannot stand your ground

4. Duress
a. Less likely to succeed than self defense
b. ∆ commits crime because of threat from 3rd person
c. CL- Unavailable defense for intentional murders
d. MPC- unavailable defense if ∆ charged w/negligent crime
e. General rule- It is a defense that the actor engaged in the conduct
charged to constitute an offense because he was coerced to do so
by the use of, or threat of, unlawful force against his person or the
person of another, which a person of reasonable firmness in his
position would have been unable to resist
f. Cause and condition doctrine:
i. Exception- If the actor recklessly placed himself in a
situation in which it was probable that he would be
subjected to duress
 1. Also when actor was negligent in placing himself in
such a situation whenever negligence suffices to
establish culpability of the offense charged
g. MPC 2.09- same as general rule and cause and condition doctrine

5. Necessity
a. CL- Unavailable for intentional murders
b. Source of threat usually natural forces
c. Choosing the lesser of two evils
d. Human lives always valued over money or property
i. Cannot weigh one life over another, can only outweigh
other human lives with more human lives (i.e. saving 5
people by sacrificing 1)
e. Elements:
i. Act done was to prevent a significant evil
ii. No adequate alternative
iii. The harm caused was not disproportionate to the harm
avoided
f. How to determine Duress v. Necessity
i. Source of threat:
1. Natural forces- Necessity
2. Third party bad actor- Duress
ii. Who came up w/idea to commit that crime?
1. ∆- necessity
2. Someone told ∆ to do it- Duress
iii. Was crime to promote general welfare?
1. Yes- Necessity
2. No- Duress

D. Inchoate Liability
1. Attempts
a. Common Law:
i. ∆ tries to commit crime but fails bc he either fails to
complete conduct or conduct fails to have the intended
outcome
ii. Mens rea- specific intent to commit the crime
iii. Conduct comes “dangerously close” to being completed
1. Mere preparation insufficient
b. MPC:
i. § 5.01 (pg. 490, n. 2)
 ii. Factual impossibility: ∆ purposely engages in conduct that
would constitute the crime if the intendant circumstances
were as he believes them to be (McElroy)
iii. ∆ tried to cause a result but the result never occurred
iv. Incomplete conduct- “substantial step”
1. Easier to prove that CL’s “dangerously close” but
mere preparation still insufficient
v. Renunciation of attempt (pg. 501, n. 3)
1. Must be complete, voluntary, and properly
motivated
vi. Substantial step factors:
1. Lying in wait, searching, or following V
2. Enticing V to a location
3. Casing the joint
4. Unlawful entry into structure where crime will be
committed
5. Possession of criminal tools
6. Possession, collection, or fabrication of criminal
tools near contemplated scene of crime

2. Conspiracy
a. Attacks group criminality
b. Focuses on the agreement to commit the crime
c. Pinkerton- Each conspirator is criminally liable for all crimes
committed by co-conspirators, as long as those crimes were in
furtherance of the conspiracy
d. Punishment greater than if crime had been committed by an
individual
e. MPC § 5.03 (applies to CL jurisdictions) (pg. 520, n. 3)
f. Renunciation= affirmative defense
i. Must be complete and voluntary
ii. Must actually stop offense

E. Accomplice Liability (Complicity)

1. Principal- Person who directly commits the crime and is thus responsible for
his own offense
2. Accomplice- person who assists or encourages the commission of the
principal’s offense and becomes responsible for the other person’s actions
a. Accessory= accomplice
3. Accomplice liability is a form of criminal liability, not its own offense
a. ex. Cannot be convicted of “accomplice to murder” just
convicted of murder…held responsible for principal’s crime
4. Can either be "accessory before the fact” or “accessory after the fact”
 5. Accomplice can be convicted even if Principal is not
6. CL Actus Reas:
a. Aiding or encouraging P’s offense or omitting to perform a legal
duty to prevent P’s offense
b. Encouraging means:
i. Mere presence at scene of crime insufficient for
encouragement
ii. P must know A intends his presence to be sign of
encouragement or,
iii. P must know A is willing to aid P if called upon to do so
7. MPC Actus Reas (2.06 (3)(a))
a. Same as CL but also includes soliciting, agreeing to aid, or
attempting to aid

V. Criminal Law - The Special Part

A. Property Offenses
1. Larceny
a. Actus Reas:
i. Taking; and
ii. Carrying away;
iii. Property of another;
iv. with the intent to deprive the owner of that property
permanently
b. Trespassery requirement prevents gifting from being prosecuted
c. Larceny by trick:
i. Cannot fraudulently ask for monetary gift
d. Carrying away = asportation
i. Must be some movement of the property
ii. Any tiny bit of movement is sufficient
iii. If object is chained up- asportation element cannot be
fulfilled
e. Property of another doesn’t include real estate, services, or info.
f. Exceptions to mens rea even if someone intends to return item:
i. If they deprive property of virtually all its value
ii. If they create a substantial risk of loss
iii. Conditional return or offering to sell prop. Back to owner
g. Intent not satisfied:
i. “Joy Riding”
ii. “Claim of Right”
1. Honest belief prop. Belongs to you
 2. Good faith/ bona fide attempt to collect debt
3. ∆’s belief must not be reasonable

2. Robbery
a. Actus Reas:
i. Taking; and
ii. Carrying away;
iii. Property of another;
iv. with the intent to deprive the owner of that property
permanently; and
v. Through the use of force or the threat of force against
another person
b. i.e. theft plus assault
c. Force can be very slight in some jurisdictions
d. Mens reas differ across jurisdictions
e. Taking must be from the person or in the presence of the victim

3. Burglary
a. Common Law Actus Reas:
i. Breaking; and
ii. Entering;
iii. The dwelling house;
iv. Of another;
v. At night;
vi. With the intent to commit a felony therein
b. MPC definition (221.1 (1)):
i. A person is guilty of burglary if they enter a building or
occupied structure, or separately secured or occupied
portion thereof, with the purpose to commit a crime therein
c. California definition:
i. ∆ enters building, room within a building, locked vehicle,
or structure; at the time of entering that structure ∆
intended to commit either a theft or a felony once inside
ii. Crime of burglary completed if ∆ enters structure or room
with the requisite intent, even if the intended felony or
theft is never completed
d. Florida definition:
i. ∆ enters or remains in a structure with the intent to commit
a criminal offense therein
ii. Requires an entry with the requisite intent
iii. Burglary not committed if intent is formed after entering
the home and once intent formed ∆ did not enter another
room within structure
e. No need to prove a theft took place
 f. Intent to commit a felony is sufficient
g. Timing of mens rea:
i. Specific intent to commit felony at time of entry
ii. Felon’s remorse doesn’t undo crime

4. Lost, Mislaid and/or Abandoned Property

a. Lost:
i. Property in which the owner has involuntarily parted with
because of negligence, carelessness, or other non voluntary
means
1. No intent to part with the property
2. Property is lost when its accidentally dropped in any
public place
3. Must be left unintentionally to be considered lost
ii. ∆ should ask if there’s “reasonable clue” to ID owner
1. If yes- ID owner and return
iii. Can be subject of larceny if ∆ had intent to steal and clue as
to who owner was
b. Mislaid:
i. Property in which the owner voluntarily and intentionally
lays down in a place where he can again resort to it, then
forgets where he left it
ii. Owner remains in “constructive” possession of property
iii. ∆ more likely to be found guilty of larceny in mislaid v.
Lost cases
iv. Can be subject of larceny even without clue as to owner’s
ID
c. Abandoned:
i. Property in which the owner has thrown away with no
intent to reclaim
ii. Property rights relinquished by owner
iii. Abandoned prop. May be acquired by a finder
iv. Cannot be subject to larceny
v. Mistaken (honest) belief of abandonment negates mens rea

B. Drug Crimes
1. Possession (with or without intent to distribute)
a. Facts indicating possession:
i. ∆’s attempt to flee or elude police
ii. Inconsistent explanations of behavior
 iii. Presence of sig. amounts of contraband/ paraphernalia in
plain view
iv. Large amounts of cash
v. Other indicia of sale of drugs/paraphernalia
vi. Evidence of being under the influence of drugs
vii. Drug residue on ∆
b. Majority of jurisdictions req. mens Rea
i. Prosecution must prove- actual possession, knowledge of
drug’s presence, and knowledge of drug’s illegal nature
ii. If ∆ knowingly possessed some amount of an illegal drug,
it does not matter if he thought it was a different drug or
quantity
iii. Lack of knowledge of illegal nature is affirmative defense
c. Actual Possession:
i. Immediate physical control of item
1. e.g. in ∆’s hand or pocket
ii. No time limitation- momentary possession counts
iii. Spatial limitation- Must have physical possession
d. Constructive Possession:
i. Ability and intent to control the item
ii. May be in another person’s actual possession
e. Possession with intent to distribute:
i. Possession of more than a “user-quantity” of the drug

2. The Amount of Drugs Possessed or Sold

a. Impacts sentencing- reasons that those who possess a large amount
are responsible for selling a large amount and should serve more
time
b. Mens rea in regards to amount in possession not required
c. Amount used as indirect proof of “intent to distribute” and as
evidence of the relative harm caused by ∆’s crime
d. Mistake of fact regarding amount of drug in possession- not
affirmative defense

3. “Drug-Free Zones”
a. Sentencing increase for possessing or selling drugs within a drug
free zone
b. People in densely populated cities more likely to violate bc most of
the city would be within drug free zones
i. e.g. 1000 feet of a day care, school, park, etc.
C. Sexual Offenses (only Common Law – no MPC)
1. Rape by Fraud (where V’s lack of knowledge vitiates consent)
a. Fraudulent sex only a crime when victim is deceived about the act
itself, not about the reasons for having sex
b. Fraud in the inducement:
i. Lies ∆ tells to get V in bed, V consents to sex
ii. Does not vitiate consent

2. Rape/Sexual Assault (“Coerced Sex”)

e. Common Law Definition

f. Modern Statutory Definitions (note interplay b/w statutory

definitions and judicial interpretations – eg, In re: MTS as
compared to Berkowitz)

i.Penetration + Force?

ii.Pentration + Non-Consent?

iii.Penetration + Force & Non-Consent?

iv.Rape by Intoxication (where V’s intoxication vitiates

consent)

3. Statutory Rape (sex with someone “under the age of consent”)

4. Mens rea of rape/sexual assault

a. If actus reus elements are very difficult to prove (eg,

penetration, force, non-consent, resistance, etc.), mens rea is
often treated as unnecessary (that is, the offense is treated as
if it were general intent, or even strict liability) (Lopez)

b. If actus reus elements are easier to prove (eg, penetration +

non-consent), then mens rea is often treated as an important
additional element that must be proven (In re: MTS; John Z,
Giordino)

c. Rape is typically regarded as a general intent offense. (Lopez)

d. Rape can also be treated as an offense that requires a mens rea

of “intentionally of knowingly” – or “recklessly” (cases cited in
Lopez)

e. As a general rule, D’s voluntary intoxication is not relevant to

negating mens rea of rape (since it is a general intent offense
at common law)
 f. However, if a statute defining the mens rea of the rape
requires proof of “specific knowledge,” then D’s voluntary
intoxication is relevant to negating mens rea. (Smith) (That is,
the jury should be instructed to consider D’s intoxication in
determining whether D “knew” that V didn’t consent)

g. Rape is often treated as a strict liability offense in cases of

statutory rape (Holmes)

D. Homicide
1. Common Law Forms of Homicide

a. 1st Degree Murder

a. Premeditation and deliberation req.
b. Specific intent to kill
c. Planning may be sufficient, but is not necessary in proving
premeditation
d. “premeditation” and “deliberation” often defined in jury
instructions
e. Premeditation can be “as instantaneous as successive thoughts
of the mind”
f. Deliberation involves weighing of arguments, consideration of
consequences, and opportunity for passion to cool
g. Doctrine of transferred intent applies
h. Can include some felony murders

b. 2nd Degree Murder

a. Impulsive or unplanned, intentional and with malice
b. Mens rea- malice aforethought
i. When ∆ intends to kill, but there’s no premeditation
c. Depraved heart, abandoned and malignant heart, and depraved
indifference- used to indicate malice aforethought
d. Intent to kill; knowledge; intent to cause serious bodily harm;
extreme recklessness
e. Some felony murders

c. Felony Murder
a. Results in conviction of 1st or 2nd degree murder
b. When V dies during ∆’s commission of a felony
c. Intent to kill substituted by intent to commit a dangerous felony
d. All murder committed in the perpetration or attempted
perpetration of the enumerated felonies is 1st degree murder
 e. Detterance- raises the “price” of dangerous felonies by raising
the risk that in something goes wrong ∆s will wind up convicted
of murder as well

d. Voluntary Manslaughter
a. Intentional killing plus provocation
b. Intent to kill without malice; heat of passion
i. Violent and uncontrollable rage caused by a blow or
certain other provocation
c. Requires:
i. ∆ acted in state of anger, rage, hatred, furious
resentment, or terror
ii. State of mind prompted from “some insult, provocation,
or injury which would naturally and instantly produce,
in the minds of ordinary men, the highest degree of
exasperation”
d. Violence- even if fails to provide claim of SD is sufficient in
provocation
e. Mere words- generally not provocation
f. Trespass without threat of violence or further crimes- not
provocation
g. “Cooling off time”- courts reject provocation when provoking
event and homicide occur in different locations
h. 4 Prong Provocation test:
i. Reasonable Provocation
ii. Actual Provocation
iii. Would reasonable person have cooled off?
iv. Did ∆ actually cool off?
i. Majority rule- ∆’s characteristics not taken into account for
reasonableness

e. Involuntary Manslaughter (reckless homicide)

a. ∆ was aware their conduct posed sig. risk of death or bodily
harm but ignored risk

f. Involuntary Manslaughter (negligent homicide)

a. Killing through gross negligence or without malice

2. Model Penal Code Forms of Homicide

a. MPC Murder

i.MPC 210.2 (a)

 1.Criminal homicide constitutes murder when it is committed
purposely or knowingly

ii.MPC 210.2(b)
1. Criminal homicide constitutes murder when it is committed
recklessly under circumstances manifesting extreme
indifference to the value of human life. Such recklessness
and indifference are presumed if the actor is engaged or is
an accomplice in the commission of, or an attempt to
commit, or flight after committing or attempting to commit
robbery, rape or deviate sexual intercourse by force or
threat of force, arson, burglary, kidnapping or felonious
escape.
2. Extreme indifference to the value of human life
a. Must be left directly to the trier of fact under
instructions which make it clear that recklessness
that can fairly be assimilated to purpose or
knowledge she be treated as murder and that less
extreme recklessness should be punished as
manslaughter
b. Reflects judgement that there is a kind of reckless
homicide that cannot fairly be distinguished in
grading terms from homicides committed purposely
or knowingly

b. MPC Manslaughter

i.MPC 210.3(a)
1. Criminal homicide constitutes manslaughter when it is
committed recklessly

ii.MPC 210.3(b)
1. Criminal homicide constitutes manslaughter when a
homicide which would otherwise be murder is committed
under the influence of extreme mental or emotional
disturbance for which there is reasonable explanation or
excuse. The reasonableness of such explanation or excuse
shall be determined from the viewpoint of a person in the
actor’s situation under the circumstances as he believes
them to be.
2. Similar to CL’s voluntary manslaughter but:
a. Time to cool off = irrelevant
b. More subjective approach to reasonable person test
 3. Broader than common law’s provocation doctrine

c. MPC Negligent Homicide (MPC 210.4)

1. Criminal homicide constitutes negligent homicide when it
is committed negligently

E. Sentencing
1. Creation of prisons
a. Began as alternative to death penalty and various corporal punishments
such as public stockade
b. Humane alternative to banishment
c. Early goals of rehabilitation
d. Trends: deterrence, rehabilitation, retribution
2. Terms
a. Determinate = set sentence
b. Indeterminate = range for sentence (e.g. 2-6 years)
c. Discretionary: power of the judge to impose any sentence they please
d. Non discretionary requires defendant to serve pre determined amount of
time set for different crimes
e. Sentencing guidelines- uniform sentencing policy
f. Non-mandatory guidelines do not violate 6th amendment, mandatory
guidelines do
3. Neal-Mutschler Rule
a. A judge can impose consecutive sentences that exceed the maximum
term for the defendant’s most serious offense, as long as the judge
expressly finds that the sentencing is necessary to protect the public.
b. Vandergriff v. State
1. Vandergriff’s Apprendi rule: Any fact (other than a prior
conviction) that is necessary to support a sentence…must be
admitted by the defendant or proved to a jury beyond a reasonable
doubt
2. Apprendi’s Apprendi Rule: Other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury and
proved beyond a reasonable doubt
c. Guides sentencing judges and requires them to expressly justify the
imposition of certain lengthy terms of imprisonment
4. Sixth Amendment
a. In all criminal prosecutions, the accused shall enjoy the right to speedy
and public trial, by an impartial jury of the state and district wherein the
crime shall have been committed
5. Merits majority
 a. USSG violates 6th amendment bc they rely on judicial finding to
enhance sentences as part of a presumptive system
b. USSG are mandatory and binding on all judges
6. Remedial Majority
a. Proper remedy is to excise parts of the sentencing reform act and make
USSG effectively advisory
b. Congress would have preferred an effectively advisory system with
judicial fact finding
c. Trial courts must still: “consider the guidelines,” follow the purposes of
the federal statute, give written reasons for sentences that diverge from the
guidelines, be subject to appellate review for “unreasonableness”