Murder

Question 1

Homocide

Answer 1

The killing of a human by another human being

Question 2

CL Murder

Answer 2

The intentional killing of a human being by another human being with malice aforthouyght and without justification, excuse, or mitigating circumstances

Question 3

CL Malice

Answer 3

When a person unjustifiably, inexcusably, and in the absence of any mitigating circumstances, kills a person with any one of the 4 mental states

Question 4

CL 4 mental states of malice aforethought

Answer 4

Intent to kill
Intention to inflict grevious bodily injury
depraved heart
Intention to commit felony

Question 5

CL Depraved heart

Answer 5

Condcut that manifests an extremely reckless disregard for the value of human life
1 conscious awareness
2 a risk that is foreseeable
3 a risk that is substantial and unjustifiable

Question 6

Degrees of murder

Answer 6

o Two categories: 1st degree and 2nd degree.
• 1st degree: killing was deliberate and premeditated.
• 2nd degree: all other murders.

Question 7

1st degree murder CL

Answer 7

willful (intentional/malice aforethought), and premeditated thought about beforehand may be split second) murder and deliberated (to measure and evaluate the major facets of a choice- cool mind)

Question 8

Premeditation

Answer 8

premeditation considers the quantity of time taken to form the intention to kill;

Question 9

deliberation

Answer 9

deliberation concerns the quality of thinking process during this time. It is possible to premeditate without deliberating, but deliberation requires premeditation.

Question 10

How to prove D’s state of mind

Answer 10

• D’s conduct in light of the surrounding circumstances
• Natural and probable consequences inference~ a jury may infer (not presume) that a person intends the natural and probable consequences of their actions
• A jury may infer an intent to kill if D intentionally uses a deadly weapon directed at the vital part of the human anatomy

Question 11

Guthrie

Answer 11

there must be some period between the formation of the intent to kill and the actual killing, which indicates that the accused is fully conscious of what he intended, to support a conviction for 1st degree murder.

Not guilty of first because acted instantly

Question 12

Morrin

Answer 12

The time necessary is impossible to determine, the interval between initial thought and ultimate actions should be long enough to afford a reasonable man time to subject the nature of his response to a “second look.” Under this rule perhaps Guthrie would be found not guilty of first degree murder but rather 2nd degree

Question 13

Midgett

Answer 13

insufficient to establish premeditation and deliberation required for 1st degree murder. Evidence only supports that D intended not to kill son but to abuse him further. Evidence sufficient to sustain a conviction of 2nd degree murder. After case AR law amended to finding of 1st degree murder where extreme indifference to value of human life one knowingly causes the death of a person 14 yrs of younger.

Question 14

State v Forrest

Answer 14

fired four shots point blank at his father’s temple, cocking the pistol each time he fired. D acknowledged killing his father and said he promised his dad he wouldn’t let him suffer. D convicted of 1st degree murder and appealed. Rule/Holding. To determine premeditation and deliberation take into account circumstances: want of provocation, D’s conduct and statements before and after killing, D’s threats and declarations before and during the occurrence, ill will or previous difficulty between the parties, dealing of lethal blows after deceased has been felled and rendered helpless, and evidence that the killing was done in a brutal manner.
*Controversy: definitions imply that one who premeditates taking the life of a terminally ill relative is guilty of a higher degree than someone who kills spur of the moment with no thought at all.

Question 15

CL 2nd degree

Answer 15

INTENTIONAL unlawful killing w/ willful malice aforethought but NO premeditation or deliberation. (assuming there is no justification, excuse, or mitigation)

Question 16

In states that divide murder into degrees, a “depraved-heart/extreme recklessness” homicide and “intent to inflict grievous bodily injury”

Answer 16

ordinarily is second-degree murder.

Question 17

Murder: Intent to Inflict Great Bodily Harm (“GBH”)

Answer 17

• D acts with malice aforethought if she intends to inflict GBH on another person.
o if a death results → guilty of murder

Question 18

• Grievous Bodily Injury/Great Bodily Harm/Serious bodily injury—defined by statute or court

Answer 18

injury that imperils life or that is likely to be attended with dangerous or fatal consequences

Question 19

** Premeditation and deliberation do not exist in

Answer 19

MPC

Question 20

Dilebration

Answer 20

o A “cold-blooded” mental calculation and measurement of the choice about to be made.
o D’s mind is free of “excitement or passion.”

Question 21

• MPC has no distinction between

Answer 21

1sy and 2nd degree murder

Question 22

MCPCriminal homicide is murder when

Answer 22

4) it is committed purposely or knowingly or

5) it is committed recklessly under circumstances manifesting extreme indifference to the value of human life.

Question 23

Code abandons “malice aforethought”

Answer 23

and replaces it with purposefully or knowingly

Question 24

CL - MPC CORALLARIES

Answer 24

6) Intent to kill→purposefully or knowingly
7) Intent to inflict Grievous Bodily injury→”extreme recklessness”
8) Depraved Heart→”extreme reckless”- but explicitly requires proof of advertent risk-taking, risk-taking must be “substantial and unjustifiable”
9) Felony Murder Rule→reckless indifference to human life is presumed if person causes the death during the commission of one of the felonies enumerated in the code (weak presumption though-does not shift the burden of proof)

Question 25

Felony Murder rule CL

Answer 25

A person is guilty of murder if she kills another person, even accidentally, during the commission or attempted commission of any felony.

Question 26

1st degree FMR CL

Answer 26

Inherently dangerous felonies arson, rape, robbery, or burglary

Question 27

2nd degree

Answer 27

→2nd degree murder if any other, non-enumerated predicate felony
• Anything that is a felony and that is not negated by the merger doctrine can be a non-enumerated predicate felony

Question 28

How to determine if something is inherently dangerous

Answer 28

• In the abstract test: considering the felony in the abstract—whether it can be engaged in without the high likelihood that someone will be killed
• In the act test: consider the actual act the felony and murder did, and you consider the likelihood of death in this case.

Question 29

FMR rationale

Answer 29

• Threat of murder conviction and punishment may deter felons
o Criticism: if we want to deter felons from committing crime then increase the punishment of the felony instead of dealing with it indirectly by threatening greater punishment for unintended and rare homicide that occurs during the felony
• Harshness of the rule will cause felons to commit their crimes in as non-dangerous a manner as possible. The rule is not intended to deter the felony but to deter the dangerous conduct during its commission.

Question 30

FMR Fuller

Answer 30

Ds guilty of felony murder. Accidental death occurring during flight subsequent to a theft from a vehicle will support 1st degree murder charges.

Question 31

FMR Stamp

Answer 31

After D flees, victim dies of heart attack caused by fright from the robbery. D is guilty of 1st degree murder under FMR b/c it is one of the enumerated felonies.

Question 32

MPC FELONY MURDER SUB

Answer 32

210.2(1)(b) – Criminal homicide constitutes a murder when it is committed
• Recklessly under circumstances manifesting extreme indifference to the value of human life.
• Such recklessness and indifference are presumed(PRESUMPTION) 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.

Question 33

MPC FMR burden

Answer 33

Burden of proof remains on prosecution, but jury is told they may infer (but need not) extreme indifference to human life from the commission of one of these felonies. And, D may present evidence that he committed the felony in a manner that does not manifest extreme indifference to human life. If the jury has a reasonable doubt about the matter, it must find him not guilty of the murder, even if D committed the felony.

Question 34

Why FMR limited?

Answer 34

b/c FMR unpopular many courts have limited its scope: some jurisdictions do not apply limitations while other jurisdictions may apply one or another, but not all, of these limits

Question 35

The “Inherently Dangerous Felony” Limitation:

Answer 35

• FMR limited to homicides occurring during commission of “inherently dangerous” felonies.
• Courts do NOT agree on how to determine whether a felony is “inherently dangerous.”

Question 36

FMR In the abstract approach

Look to facts

Answer 36

a. Only if the felony, as defined, always- no matter how it is committed- creates a substantial risk of death will it be considered inherently dangerous, and thus subject to the FMR.

Question 37

When is it not inherently dangerous

Answer 37

Take away: if there is one way that the felony can be committed without endangering life (even if most of the ways do engager life) → not inherently dangerous

Question 38

FMR facts of the case approach

Answer 38

other courts consider a felony “inherently dangerous” if it is dangerous in the abstract or in light of the factual circumstances in the particular case, i.e., if it was committed in this case in a dangerous manner.

Question 39

The “Independent Felony” (or Merger) Limitation

Answer 39

• Two questions to ask:

a. Substantially subvert legislative intent, and
b. Is it assaultive in nature?
1. If either is answered yes, then apply merger and ~ FMR.

Question 40

Res Gestae

Answer 40

Killings “In the Perpetration” or “Furtherance” of Felony (Res Gestae)
The mere fact that a death occurs “during” the commission of a felony is insufficient to trigger the FMR. There must also be a casual connection between felony and death.

RES GESTAE—continues even after the felony is technically over, if the death occurs during the escape from the scene of the crime or is part of the same, continuous transaction (continues until temporary safety is reached).

Question 41

MPC Res gestae

Answer 41

MPC §2.03(2)(b) “not too remote or accidental in its occurrence to have a just bearing on the actor’s liability or on the gravity of his offense.”

Question 42

King v. Commonwealth (FMR)

Answer 42

Held: there was no causal connection b/w the felony of drug distribution and the killing by plane crash Although D’s presumably would not have been in the place but for their felonious behavior, the crash would have resulted even if they were carrying legal cargo.

Question 43

Agency Theory of FMR

Answer 43

(1) “Agency Theory” of Felony Murder: (majority rule) a felon is only responsible for homicides that were committed in furtherance of the felony, by a person acting as her agent. Therefore, a homicide committed by a non-felon (police officer, victim, or bystander) falls outside the felony-murder rule.

Question 44

Proximate Causation Approach

Answer 44

(alternative-less popular) A felon may be held responsible for the homicide caused by the non-felon (police officer, victim, or bystander), if the criminal “proximately caused” (foreseeable response to felon’s conduct) the killing/shooting (set in motion the acts which resulted in victim’s death). Sometimes courts say that the killing has to be unjustified to be held liable.

Question 45

o death occurs too long after completion of felony
o death occurs too far from the scene of the felony
o felony is not actual and proximate cause of death.
• i.e., D is committing a felony by possessing an unlicensed firearm when he runs over V with his car. The felony is not the cause of V’s death and FMR doesn’t apply.

Answer 45

Must meet time/space/causation requirements – FMR will not apply if:

Question 46

Depraved heart

Answer 46

• “depraved heart” behavior is conduct that manifests an extreme indifference to the value of human life.
→No single definition, but most courts would agree that actor manifests an extreme indifference in the value of human life if a criminal takes a substantial and unjustifiable foreseeable risk of causing human death.

Question 47

Depraved heart general rule

Answer 47

General Rule: One who acts with a “depraved heart” is one who acts with malice aforethought.
• If a person dies as a result → guilty of murder (even if death was unintended).

SAME AS EXTREME RECKLESSNESS

Question 48

Waht degree murder is depraved heart

Answer 48

2nd

Question 49

Berry Depraved heart

Answer 49

Where D shows an extreme indifference to the value of human life and is either aware of the risks of his conduct or that his conduct is contrary to the law, such evidence is sufficient to justify trial by murder by an implied malice theory.

Question 50

Knoller implied malice

Answer 50

Implied malice requires D’s awareness of the risk of death to another. The killer acts with implied malice when she objectively knows that her conduct has a high probability of resulting in death to another human being. The subjective part is whether she acted with a conscious disregard for human life.

Question 51

three requirements for CL depraved heart

Answer 51

3 Requirements for CL Depraved Heart Murder/Implied Malice:
• High probability conduct will cause death, AND
• Wanton disregard for human life, AND
• Antisocial purpose or motive.

Question 52

Voluntary Manslaughter

Answer 52

Voluntary Manslaughter is an intentional killing but one in which the actor takes a life in a sudden heat of passion and as a result, adequate provocation.

• Some jurisdictions recognize a diminished capacity “partial responsibility” defense that will reduce a murder to manslaughter
• Some jurisdictions recognize an “imperfect” justification defense that will reduce murder to voluntary or involuntary manslaughter

Question 53

PArtial justification to provocation doctrine

Answer 53

• Partial Justification—(minority view) provocation is a partial justification for a killing, i.e., that the death of the provoker-victim constitutes less of a social harm than the killing of an entirely “innocent” person. Also, the victim, by provoking the killer, partially forfeits his right to life by his unlawful conduct.

Question 54

Partial excuse

Answer 54

• Partial Excuse— defense is a partial excuse, as a concession to normal human frailty. The provoker does not deserve to die but the culpability of the actor is reduced b/c of provocation only if the provocation is serious enough (CL calls “adequate provocation”) are “we prepared to say that an ordinary person in the actor’s circumstances, even an ordinarily law-abiding person… might become sufficiently upset by the provocation to experience substantial impairment of his capacity for self-control and, as a consequence, to act violently.”

Question 55

four elements of voluntary manslaughter

Answer 55

(1) Actor acted in heat of passion (“anger, fear, jealousy or deep depression”)
(2) Passion was result of adequate provocation
• For juries to determine whether an alleged provocation would render an ordinary person liable to act rashly
• Words alone are not adequate provocation
(3) Actor did not have reasonable opportunity to cool off
• For a jury to determine
(4) Causal link b/w provocation, passion and homicide.

Question 56

Waht standard is manslaughter?

Answer 56

Reasonable/ordinary Person Standard: would the circumstances cause a reasonable person’s (law abiding person) passion to inflame?

Question 57

Girourard Manslaughter

Answer 57

worlds alone cannot constitute adequate provocation to mitigate a charge of murder to manslaughter, unless the words are accompanied by conduct indicating present intention & ability to cause D bodily harm. (the reasonable standard is not affected by D’s mental frailties.

Question 58

MPC Manslaughter

Answer 58

210.3(1)(b): Criminal homicide constitutes manslaughter when:
• A homicide that would otherwise be murder, is committed under the influence of extreme mental or emotional disturbance (EMED) 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.
o Reasonable person standard

Question 59

Difference in MPC Manslaughter

Answer 59

Rejects the narrowness of CL- permits the jury to reduce the offense to manslaughter without considering the rigid CL categories of “adequate provocation”
• Words alone can qualify
• Defense applies even if there is no provocation at all,
o As long as the jury conclude that there is a reasonable explanation or excuse for the actor’s EMED
• No “reasonable cooling off” requirement

Question 60

MPC objective or subhective?

Answer 60

Mixed Objective and Subjective Test: The reasonableness of excuse for EMED is from viewpoint of person in actor’s situation under circumstances as he believed to be.
→ this allows for considerable subjection of the objective standard.
→ Limitation: Idiosyncratic characteristics (ie. Nazi, homophobe) cannot be taken into consideration of reasonable standard.

Question 61

Manslaughter differences

Answer 61

MPC/CL Manslaughter Differences:
• MPC gets rid of CL cooling off period
o Homicide does not need to immediately follow provocation under MPC
• MPC gets rid of CL “words alone are not enough for provocation”
• MPC openly looks at subjective x-tics of D (unless idiosyncratic) but in the end its up to the jury to decide what to consider.
• MPC extreme mental or emotional disturbance need not be by the decedent (no misdirected retaliation doctrine)
• MPC has unlimited categories of provocation.
• MPC Negligence is not enough for manslaughter.
• MPC words alone can warrant manslaughter instruction
• MPC mitigation available if D erroneously believes V responsible for what provoked D
• MPC mitigation available for killing “innocent bystander” by accident.

Question 62

Cassa D manslaughter burden of proof

Answer 62

D has the burden of proof as to the affirmative defense of extreme emotional disturbance.
Two elements to defense:
(1) An act done under the influence of extreme emotional disturbance; and
(2) A reasonable explanation for the disturbance as viewed by a person in the D’s situation under the circumstances as D believed them to be.

Question 63

How do you determine a reasonable excuse in a manslaughter case

Answer 63

To determine whether there was a reasonable explanation or excuse, the jury must:

(1) View subjective internal situation in which D found himself & external circumstances as he perceived them,
(2) Then objectively assess whether the explanation or excuse for his emotional disturbance was reasonable. By this means, an accused has a fair opportunity for mitigation, while the fact finder is not required to find mitigation whenever emotional disturbance exists.

Question 64

Involuntary Manslaughter

Answer 64

An unintentional killing that is the result of “an act, lawful in itself, but done in an unlawful manner, and w/ out due caution and circumspection

Question 65

CL IM

Answer 65

An act or omission of criminal negligence which results in death.
• A higher degree of negligence than normal
• Gross negligence

Question 66

Unlawful act doctrine

Answer 66

→ Some states apply to killings that occur in the commission of a misdemeanor. (misdemeanor-manslaughter rule)

1. Some states apply this broadly to all misdemeanors as well as to any felony that is excluded from felony-murder rule
2. Few jurisdictions apply the doctrine if conduct that cause the death is wrongful (immoral), albeit not illegal
3. Some jurisdictions limit the rule to mala in se misdemeanors, such as petty theft, or to “dangerous” misdemeanors- offenses entailing a “reasonably foreseeable risk of appreciable physical injury.”

• Similar to the depraved-heart version of reckless murder, but more negligent in nature (may be convicted even though was unaware of the risk she was taking)

→ Involuntary manslaughter by criminal negligence and reckless murder often blur

Question 67

Involuntary manslaught MPC

Answer 67

MPC §210.3(1)(a) homicide committed RECKLESSLY constitutes manslaughter. Does NOT manifest an extreme indifference to human life, which is required for reckless murder.

Question 68

Reckless MPC

Answer 68

Recklessness (2.02(2)(c)): conscious disregard of substantial unjustifiable risk to human life, disregard involves a gross deviation that from the standard of conduct that a law abiding person would observe in the actor’s situation.

Question 69

When the homicide is committed recklessly, conduct must manifest:

Answer 69

• an extreme indifference to human life (subjective) for which there is a
• reasonable explanation or excuse (objective)
• awareness of taking a substantial and unjustifiable risk to human life

Question 70

Involuntary manslaught diff

Answer 70

CL→ D may be convicted of involuntary manslaughter although she was unaware of the risk she was taking.

MPC → have to be aware of the risk

Question 71

Negligent Homicide

Answer 71

210.4(1) criminal homicide constitutes negligent homicide when it is committed negligently.
Equivalent of involuntary manslaughter at CL

Negligently: when a person should be aware of a substantial and unjustifiable risk that certain result from the conduct will occur. Risk must involve gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.

Question 72

Williams IM

Answer 72

Gross negligence is required for involuntary manslaughter under CL. However, WA statute modified the law by imposing liability where death is the proximate result of only simple or ordinary negligence. Here, Ds were required to exercise ordinary caution. They breached their duty and the child died so they are guilty.

Question 73

• Under the MPC, the difference between manslaughter and murder

Answer 73

is a jury question
o Jury decides whether recklessness exhibited extreme indifference or whether there was EMED and a reasonable explanation/excuse.

Question 74

MISDEMEANOR MANSLAUGHTER RULE (“Unlawful Act Doctrine) (both CL & MPC)
MISDEMEANOR + KILLING = MISDEMEANOR MANSLAUGHTER

Answer 74

o An unintended homicide that occurs during the commission of an unlawful act not amounting to a felony constitutes CL involuntary manslaughter.
o Involuntary manslaughter liability attaches even where the D does not act with the degree of culpability ordinarily required for involuntary manslaughter predicated on criminally negligent behavior.
o D’s intentional commission of misdemeanor supplies the culpability necessary to impose criminal liability
o Person may be convicted of manslaughter even though the person’s conduct does not create a perceptible risk of death
o Many courts limit the rule to deaths resulting “dangerous” misdemeanor conduct or if the manner of its commission entails a reasonably foreseeable risk of appreciable physical injury.

Question 75

o Malum in se:

Answer 75

Wrong in themselves (ex. shoplifting or reckless driving)

Question 76

Malum Prohibitum

Answer 76

: Wrong b/c prohibited (ex. practicing med. w/o license, possession of X)

Question 77

Forcible rape 3 elements

Answer 77

• General Intent offense
• Traditional forcible rape statute:
o Forcible rape is sexual intercourse, by means of force or threat of force, against will, and without consent
• Traditional statute required vaginal intercourse; modern statues include all forms of forcible sexual penetration
o Tend to be gender neutral and even prohibit undesired sexual contact (lesser offense)
• At original CL a husband was immune from prosecution for the rape of his wife
o Today some states have abolished this while others are in transition.

Question 78

Rape Actus Reus elements

Answer 78

1) Penetration
2) Non-consent
3) Force~ used or threatened substantial force

Question 79

Force/threat of force

Answer 79

The crime of forcible rape is not complete upon proof that the female did not consent to the intercourse. It must also be shown that the male acted forcibly or by threat of force.

Question 80

Alston Rape

Answer 80

. Absent evidence that the D used force or threats to overcome the will of the victim to resist the alleged rape, the general fear was not sufficient to show that the D used the force required to support a rape conviction- the threats of serious bodily injury earlier in the day were not related to the act of sexual intercourse.

Question 81

Commonwealth v. Berkowitz Rape

Answer 81

The legislature defined rape as sexual intercourse by forcible compulsion, not as nonconsensual intercourse. Evidence by V’s verbal resistance is relevant to prove that intercourse was against her will, but it is not sufficient as evidence of forcible compulsion.

Question 82

2. Forcible Compulsion (Berkowitz Standard)

Answer 82

Forcible Compulsion includes not only force or violence but also moral, psychological or intellectual force used to compel a person to engage in sexual intercourse against that person’s will. This is examined within the totality of the circumstances. (force not inherent with consensual sex)

Question 83

Rape: How much force?

Answer 83

Traditional View:
Resistance rule: evidence must show that the victim resisted and her resistance was overcome by force or that she was prevented from resisting by threats to her safety [threats of substantial force (threat of death of SBH)]
• This means→ if M uses or threats to use force likely to cause death or serious bodily injury to F, she is not required to resist. If M uses only moderate force, F is required to resist the rapist “to the utmost,” or “until exhausted or overpowered.” Thus rape is not forcible unless the male uses force sufficiently great to overcome her resistance. Hazel v. State

Question 84

Rusk Rape

Answer 84

Conviction was overturned b/c court disagreed that the issue of whether or not intercourse was accompanied by force or threats of force is one of credibility to be determined by the jury. The trial judge first should have determined whether there was sufficient evidence for a jury to find that V was reasonably in fear. Here, evidence is legally insufficient to conclude that D’s words or actions created in the V’s mind a reasonable fear that, if she resisted, he would have harmed her or would have used force to overcome her resistance

Question 85

Resistance never required if will result in death or great bodily harm. The extent of resistance has been greatly reduced to “reasonable resistance” (having removed the “resistance to the utmost.”). This leaves it to the jury to determine the sufficiency of the female’s resistance.

Answer 85

Changing the RESISTANCE REQUIREMENT

Question 86

Abandoning fore

Answer 86

Modern trend: force is inherent in the sexual act itself. The only issue remains the matter of consent.

Question 87

State of New Jersey in the interest of M.T.S PENETRATION w/ OUT CONSENT IS RAPE

Answer 87

newly reformed rape statute and determined that there is physical force if D applies any amount of force against another in the absence of what a reasonable person would believe to be an affirmative and freely given permission

the factfinder must decide whether D reasonably believed that the alleged V had freely given affirmative action.

(1) Not only is a “no” (in words or conduct) by the female sufficient to prove forcible rape, but the absence of “yes” (in words or conduct) also constitutes forcible rape.

Question 88

Withdrawn consent

Answer 88

WITHDRAWN CONSENT → effectively nullifies any earlier consent & subjects male to forcible rape charges if he persists in the act.

Question 89

MPC RAPE AR

Answer 89

213.1(1)(a): “a male who has sexual intercourse with a female not his wife is guilty of rape if he compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone.”

Question 90

MPC RAPE ELEMENTS

Answer 90

Elements:
•	Sexual intercourse by a male
•	With a female not his wife
•	By force or threat
•	Against the will
•	Without her consent
(prosecution must prove non-consent beyond reasonable doubt)

Question 91

Rape sexual intercourse

Answer 91

213.0(2) The term “sexual intercourse” is defined to include oral and anal sexual relations.
• The CL is penetration of vagina only.

Question 92

MPC SHIFT

Answer 92

The code does not use the term “non-consent.” Instead, uses “compels”, which implies non-consent and the MPC does not include a resistance requirement.

The intent of the drafters here was to shift the trial focus from the female to the male-attention should be focused on the alleged perpetrator’s actions and not on how the alleged victim responded.

Question 93

The code grades rape as a felony of the 2nd degree except in two circumstances in which it is aggravated to a felony of the 1st degree:

Answer 93

(1) If male inflicts serious bodily injury upon anyone during the course of the rape or
(2) The female was not a voluntary social companion of the actor upon the occasion of the crime and had not previously permitted him sexual liberties. (controversial)

Question 94

Rape is a blank intent offense

Answer 94

Rape is a general intent offense: any blameworthy mental state like an unreasonable belief will do.

Question 95

General rape mens rea

Answer 95

Generally accepted rule: D is not guilty of rape if, at the time of intercourse, he entertained a genuine and reasonable belief that the female voluntarily consented.

Question 96

Forcible rape mens rea

Answer 96

General Intent offense

Felony of 2nd degree unless:

(1) Inflicted serious bodily injury upon anyone during the course of the rape; or
(2) Female was not a “voluntary social companion of the actor and had not previously permitted him sexual liberties.”

So, voluntary social companion rape is considered 2nd degree.

Question 97

Non forcible rapw CL

Answer 97

Statutory Rape: intercourse by a male with an underage female constitutes rape. Neither force nor consent are elements of the offense.

→ Underage female deemed too young to validly consent

→ Statutory rape → strict liability: D guilty even if reasonably believed V was old enough to consent.

Question 98

MPC Non forcible rape

Answer 98

Non-forcible sexual intercourse by a male with a female not his wife:

1. If he “substantially impaired her power to appraise or control her conduct by administering or employing without her knowledge drugs, intoxicants, or other means for the purposes of preventing resistance”;
2. If she was unconscious at the time; or (3) if she is under ten years of age. MPC 213.6(1)(b)-(d)

Question 99

Rape by fraud

Answer 99

Fraud in the Inducement~ a male is not guilty of rape even when he fraudulently induces the female to consent to intercourse with him

Question 100

Boro rape

Answer 100

HELD: fraud does not vitiate consent. The victim was aware of the “nature of the act” and consented to it. The fact that consent was obtained through D’s fraudulent misrepresentation comprises a crime of a different nature than rape committed against a person who is at the time unconscious of the nature of the act.

Question 101

Mimkowski

Answer 101

a physician was convicted of rape when he told his patients he was treating them for menstrual cramps and they consented to have an instrument inserted in them and instead used his penis. In this case, consent is vitiated.
(1) Note. After Boro CA legislature amended its law, making inducement of consent by fraudulent representation with the intent to create fear a crime punishable by imprisonment.

Question 102

MPC Rape by fraud

Answer 102

213.1(2) Gross Sexual Imposition

3rd degree.
Male secures sexual intercourse with a female not his wife:
1. if he compels her to submit by any threat that would prevent resistance by a woman of ordinary resolution (economic, reputational, etc);
2. if he knows that she suffers from mental disease “which renders her incapable of appraising the nature of her conduct”;
3. “he knows that she is unaware that a sexual act is being committed upon her or that she submits because she mistakenly supposed that he is her husband.”

Question 103

5 types of defenses

Answer 103

o Failure of Proof
o Offense Modification
o “exceptions” to offenses (i.e., not guilty of complicity in kidnapping for paying ransom for one’s kidnapped child even though all elements of that crime are met)
o Public Policy
o Ex: statute of limitations, diplomatic immunity
o Justifications
o Despite satisfying offense elements, act not wrongful or harmful under circumstances
o “Triggering conditions” of justification defense:
• Act must be necessary to avoid harm, AND:
• Act must be proportional with regard to harm threatened.
o Excuses
o Despite satisfying offense elements, D not blameworthy or responsible for wrong/harm under circumstances.

Question 104

Failure of proof defense

Answer 104

Failure of Proof Defenses: D demonstrates that the State/Prosecutor failed to prove an essential element of the offense.
• Not a true “defense” b/c an essential element of the crime is negated and the prosecutor carries the burden of proof.
• “Mistake of Fact”

Question 105

Justification defenses

Answer 105

Indicates that the D’s conduct was morally good, socially desirable, or at least, not wrongful. Harm caused is outweighed by the need to avoid an even greater harm or to further a greater societal interest.
1. Necessity Requirement: Use of force only justifiable if it is necessary. If a person can protect herself without the use of force, then unjustified.
2. Proportionality Requirement: places a limit on the maximum harm that may be used in protection or furtherance of an interest. Deadly force should not be used to repel a non-deadly threat.
3. Reasonable Belief: Must possess a reasonable (even if incorrect) belief that the use of force is necessary and proportional to the supposed threat.
o Self Defense
o Defense of Others
o Necessity –(residual, applies when conduct is justifiable but there is no traditional defense to deal with the circumstances)

Question 106

Excuse defense

Answer 106

although actor committed the elements of the offense, and although his actions were unjustified (wrongful), his mental state is not blameworthy and he did not exercise free will so he should not be held criminally responsible for his conduct. Excuses are general defenses applicable to all offenses even though the elements of the offense are satisfied.
1. Necessity Requirement: Force justified only if necessary to prevent attack on self
2. Proportionality Requirement: Deadly force is only justified against deadly force being used against you, to prevent rape, or to prevent kidnapping.
o Insanity
o Duress

Question 107

Justification v excuse

Answer 107

• Justification focuses on the non-wrongfulness of an act

* Excuse focuses on the non-blameworthiness of the actor

Question 108

person is justified in using deadly force against another if:

Answer 108

• He is not the aggressor, and
• He reasonably believes that such force is necessary to repel the imminent use of unlawful deadly force by the other person
→ “Deadly Force”: force likely to cause death or serious bodily injury

Question 109

CL Req for self defense

Answer 109

• Defendant must not be an aggressor,
• Must have a reasonable belief that she was threatened with imminent and unlawful physical harm
• Must believe that force was necessary to prevent the harm
• In few jurisdictions there is a duty to retreat (unless one is in his home or it is unsafe) but not in others.

Question 110

Aggresor status req

Answer 110

• A person who commits an “unlawful act reasonably calculated to produce an affray foreboding injurious or fatal consequences” Peterson
• A person may not use deadly force in self-defense if she is the aggressor at the time of the conflict.

Question 111

United States v. Peterson AGGRESSOR HAS NO DEFENSE

Answer 111

D was the “aggressor” at the time of the deadly conflict. Even if V was the original aggressor when he tampered with D’s car, V lost that status when he sought to leave the scene.

Question 112

renunciation doctrine

Answer 112

DOCTRINE OF RENUNCIATION (Peterson)
• To renounce your status as aggressor, you need a clear expression – implicit OR explicit (got into the car—that was renouncing).

Question 113

to use deadly force

Answer 113

To use deadly force:
•	Threat
o	Actual or apparent
o	Of force which is deadly, unlawful and imminent
•	Reason belief force
o	Must be imminent
•	Retreat?, castle rule… etc. 
•	Must be non-aggressor

Question 114

non deadly aggressor

Answer 114

A non-deadly aggressor may regain her right of self-defense if X responds to non-deadly aggression by threatening to use deadly force in response. Right to self-defense returns when:
Majority Rule: V of non-deadly aggression responds with disproportionate force, the original aggressor immediately regains her right of self-defense.
Minority Rule: A non-deadly aggressor who is the victim of a disproportionate response to her aggression is not entitled to use deadly force unless she first retreats, and continues to be threatened with deadly force. If no safe retreat is possible, however, non-deadly aggressor may immediately use deadly force.

Question 115

Deadly aggressor

Answer 115

. Deadly Aggressors:
A deadly aggressor loses the right of self-defense in a conflict unless she wholly abandons her deadly design and fully communicates this fact to X.

Question 116

Proportionality of force

Answer 116

Proportionality of Force: Deadly force may never be used in response to non-deadly threat, even if this is the only way to repel the non-deadly threat.

Question 117

Self defense immenency req

Answer 117

• A non-aggressor may not use deadly force except to resist imminent use of unlawful deadly force.
• Force is not “imminent” unless it will occur immediately, instantly, or at once.
• Force is not “imminent” if an aggressor threatens to harm another person at a later time (future threat)

Question 118

Unlawful force req

Answer 118

A person has no right to defend against lawful- justified- force. May only respond to unlawful threats of force.
• A threat is NOT unlawful if it is justified (ex. police officers threatens to use deadly force against dangerous felon)
• A threat is unlawful if it is UN-justifiable, although excusable (ex. insane person threatens to kill D – insane person would be excused due to insanity, but D would be justified in killing insane person in self defense).
• Deadly force is not permitted unless it is proportional to the force threatened (aggressor threatens deadly force).

Question 119

Self defense necessity req

Answer 119

• Deadly force is not justified unless it is necessary.
• A person may not use deadly force to repel an unlawful deadly attack if more moderate (non-deadly) force will do the job (i.e., aged person threatens to stab D, D strong and can push aged person away, so not justified in using deadly force)

Question 120

Duty to retreat rule

Answer 120

• Majority Rule: A non-aggressor may use deadly force to repel an unlawful, imminent deadly attack, even if she is aware that she can retreat in complete safety. The no-retreat rule is an exception to the general principle that human life, even that of an aggressor, should not be taken if unnecessary. Right should never have to yield to Wrong and also to flee (retreat) is cowardly or “unmanly.”
• Minority Rule: a non-aggressor may not use deadly force to repel an attack if she knows of a completely safe place to which she can retreat. (Subject to castle exception). Retreat is required only if there is a completely safe place available, and only if it is known to the innocent person. It is not enough that she should have been aware of the avenue of retreat. The duty to retreat values human life and is consistent with the general necessity requirement.

Question 121

Reasonable belief CL Self defense

Answer 121

• A person may use deadly force in self-protection if she has reasonable grounds to believe, and actually believes, that she is in imminent danger of death or serious bodily injury – even if belief is incorrect.
• She must also reasonably believe that it is necessary to use deadly force to combat that threat- even if the belief is incorrect

Question 122

Waht is a reasonable beleif

Answer 122

• A belief that a reasonable person would hold
• “Reasonable person”: objective standard however, the individual’s physical attributes, personal knowledge, and experience are considered when assessing the reasonableness of his belief.
• Also, assess reasonableness from the standpoint of the actor under the circumstance (may not have time to reflect fully)—do NOT consider reasonableness form retrospect

Question 123

Goetz reasonable person standard

Answer 123

A person is justified in the use of deadly force if, objectively, a reasonable person in his position would believe he was in danger of life and physical being. The defendant’s physical characteristics and possibly prior experiences that help defendant evaluate present situation may be incorporated into the “reasonable person” standard.

Question 124

imperfect self defense

Answer 124

Imperfect Defense: In most common law jurisdictions, a defendant who acts with an unreasonable belief entirely loses self-defense claim.
• Some jurisdictions, however, recognize an imperfect defense, and so for an unreasonable belief or if one of the elements of self-defense (such as immediacy, necessity, failure to retreat, etc) is missing then liable for lesser offense of manslaughter instead of murder.

** Limited to homicide, but NOT limited to mistake of fact**

Innocent Shield/Bystander: Unclear, but generally, a transferred justification doctrine (like transferred intent) would apply. However, if reckless/negligent, some courts may hold D guilty of manslaughter.

Question 125

MPC self defense

Answer 125

3. 04(1)&(2)(b): D can use force when its immediately necessary to protect himself on a present occasion from unlawful force (drops CL imminence requirement) or of a threat of:
   - Death
   - Serious bodily injury
   - Forcible rape
   - Kidnapping

Question 126

MPC self defense standard

Answer 126

Stated in terms of subjective belief.
• While it also almost anything to come into court, it does NOT allow certain moral beliefs to stand such as racism
• However, subject to 3.09(2). If actor’s subjective belief is reckless or negligent→not entitled to self-defense. The defendant may be convicted of a homicide offense based on recklessness or negligence (i.e. manslaughter or negligent homicide) – consistent with imperfect self-defense.

Question 127

MPC Immenency v immediacy

Answer 127

NO Immanency: May use deadly force in self-protection even if the aggressor will not use deadly force immediately. Instead, can use force when “immediately necessary…on the present occasion.”

Question 128

MPC agressor self defense

Answer 128

MPC 3.04(2)(b)(i) Defense not permitted if actor is the AGGRESSOR: Defense is not permitted if the actor “provokes” the use of force against herself “in the same encounter” and provocation is for the purposes of causing death or serious bodily injury (i.e. is the aggressor).

Question 129

self defnse code v cl

Answer 129

Comparison to CL:In MPC, person not an aggressor if she initiates only non-deadly aggression. Code is inline with CL jurisdictions that provide that non-deadly aggressor automatically is allowed to use deadly force if the other person escalates the situation to a deadly conflict.

Question 130

MPC duty to retreat

Answer 130

Non-aggressor must retreat if she knows that she can avoid the need to use deadly force with compete safety to herself.
Exception: 3.04(2)(b)(ii)(1). A person need not retreat from her own dwelling, even if the attacker is a member of the household. Also applies to workplace but there is a duty to retreat if attacker also works there.

Question 131

MPC STAndard for Self defense

Answer 131

UBJECTIVE STANDARD
→ self defense may be raised if the actor subjectively believes that the facts support the defense, even if her belief is unreasonable.
→ when subjective belief is unreasonable, under §3.09(2), the justification defense is not available if the actor’s belief

Question 132

MPC Imperfect self defense

Answer 132

D just needs to believe self-defense is necessary but in MPC 3.09(2) if D is reckless in his belief of justifying circumstances→ not guilty of knowingly or purposefully but he may be liable for offenses of recklessness. If D is negligent in his belief of justifying circumstances, he may be liable for offenses of negligence.

1) Applies to all offenses, not just homicide
2) Only applies to mistake of fact

Innocent Shield/Bystander: If a person justifiably uses force against an aggressor, but uses such force in a reckless/negligent manner in regard to the safety of a bystander, justification defense is unavailable for the bystander’s death MPC 3.09(3)

Question 133

defense of a third party cl

Answer 133

Defense of a Third-party: A person is justified in using deadly force to protect a third party from unlawful use of force by an aggressor.
• The intervenor’s right to use force parallels the third party’s apparent right of self-defense.
• That is, the intervenor may use force when, and to the extent that, she reasonably believes that the third party would be justified in using force to protect herself.
Minority: If third party whom the intervenor is seeking to defend has no right of self-defense, even though intervenor reasonably believes she does, the intervenor loses justification defense if incorrect belief. The intervener is placed in the shoes of the party she is seeking to defend. Also known as Old CL “Alter Ego Rule” (retrospective).

Question 134

Kurr defense of others

Answer 134

FETUS—D stabbed her boyfriend to death after he punched her in the stomach. She had warned him not to b/c she was carrying his baby. HELD: Jury could have found that stabbing was not proportional to punches, but threat to human life (babies) made D’s response proportional.

Question 135

Defense of property CL

Answer 135

: Never justified in using deadly force to protect personal property, but can use non-deadly force if reasonably believes that such force is necessary to prevent the imminent, unlawful dispossession of the property. Prior to using force, must ask dispossessor to desist, unless such a request would be futile or dangerous. If she has already been dispossessed of property, cannot use force to recapture (must be “in hot pursuit”).

Question 136

Defense of others MPC

Answer 136

3.05(1)-(2):

Defense of a Third-party: Same as CL, but the intervenor must attempt to cause the third party to retreat before using deadly force. MPC 3.05 If the intervenor’s beliefs are reckless or negligent she may be convicted of an offense based on reckless or negligence.

Question 137

Defense of others MPC

Answer 137

D is justified in using deadly force to protect X if:

1. intervenor would be justified in using such force to protect herself, if the facts were as she believed them to be; AND
2. Under the facts as intervenor believes them to be, the third party is justified in using such force in self-protection; AND
3. intervenor believes force is necessary for the protection of third party; AND
4. If third party would be required to retreat under the Code’s self-protection rules, the intervenor must try to cause her to do so before using deadly force.

Question 138

Defense of Property MPC

Answer 138

Defense of Property: Justifies the use of non-deadly force to retake possession of land or recapture personal property, even after fresh pursuit has ended. 3.06(1)(b)(ii). Under 3.06(3)(d) certain cases where code allows deadly force.