Criminal Law

1L Fall 2025

Criminal Intent

Purpose: conscious desire to act

Knowledge: actor was aware the result was practically certain to occur (NPC/Practical probabilities of everyday life) - a mistaken belief is irrelevant because the defendant’s actual belief that a specified fact exists is sufficient to meet the knowledge requirement of intent, even if that belief is incorrect. 

A person need not foresee or intend the specific consequences of an act in order to possess the requisite criminal intent and is presumed to intend the natural and probable consequences of the act (Dunn - fire closet)

Transferred Intent

Need not bring about the intended harm to a victim, just need to have intended some harm (Russell - beer glass)

The doctrine exists for when the defendant intended to inflict bodily harm on one person and ended up inflicting bodily harm on another, and does not go from things to people like torts.

Criminal Recklessness

The actor creates a SUR DGBH to another human being (objective) and the actor is aware of that risk (subjective)

Criminal Negligence

The actor creates a SUR DGBH to another (Jonathan R.) human being (objective) and should have been aware of that risk (objective)

Necessary to prove that there COULD be DGBH (risk), not that there was DGBH (injury) (Vitatoe)

Pollinger standard

When looking to overturn or affirm a jury conviction:

if reasonable minds may differ on the presented evidence, the conviction should be affirmed

if no reasonable person could disagree with the presented evidence, the conviction should be affirmed

if no reasonable person could agree with the presented evidence, the conviction should be overturned

Bias in favor of affirming the jury verdict. We generally want difficult issues to be resolved by the jury rather than the judge

Assessing culpability

Harm – the nature and severity of the damage brought about by the actor’s conduct

Dangerousness – the kind of harm the actor’s conduct risked bringing about, and how likely that harm was to occur (usually comes into play when there was no harm) (magnitude and probability of harm)

Mind – did the actor intend for some harm to occur or at least have an awareness of the risk of harm (considered to be the most important factor)

Justification – was there some countervailing social good that might partially or wholly offset the harm or danger created by the actor’s conduct? (motive)

Wis. Stat. 940.01 – First-degree intentional homicide

1.     Whoever causes the death of another human being with intent to kill that person or another without mitigating circumstances (class A)

No death penalty in WI, so class A in automatic life sentence

Murder (intent to kill) common law

Wis. Stat. 940.05(1) – Second-degree intentional homicide

1.     Whoever causes the death of another human being with intent to kill that person or another with mitigating circumstances

a.     Adequate provocation – ONLY partial defense for first-degree intentional homicide

b.     Unnecessary defensive force - ONLY partial defense for first-degree intentional homicide

c.      Prevention of felony

d.     Coercion

Voluntary manslaughter common law

Wis. Stat. 940.02(1) – First-degree reckless homicide

Whoever recklessly (knowingly causes SUR DGBH) causes the death of another human being under circumstances which show utter disregard for human life

Murder (depraved heart) common law

Wis. Stat. 940.06(1) – Second-degree reckless homicide

Whoever recklessly (knowingly causes SUR DGBH) causes the death of another human being

Involuntary manslaughter common law

Malice aforethought (murder) common law

ANY of the following:

a.     Intent to kill

b.     Intent to inflict grievous bodily harm

c.      Extreme recklessness (depraved heart murder)

d.     Commission of felony

Manslaughter common law

1.     Voluntary, intentional killing under adequate provocation

2.     Involuntary (regular recklessness killing)

3.     Commission of non-felonious illegal act

Adequate Provocation

1. The defendant actually believed that the provocation occurred and the lack of self-control was caused by the provocation (subjective)

2. the defendant reasonably believed that the provocation occurred and a reasonably constituted person would lack self-control in the face of the provocation (objective) 

“Some evidence standard” - When there is a question of whether the defendant has enough to meet the some evidence test, (where reasonable minds may differ) then the defendant wins and is able to present the defense. 

• This is a case-by-case, fact intensive analysis, which does allow the inclusion of a historical analysis of a pattern of abuse and any escalation of behavior. (Felton - BWS) (McMorris evidence)

Common law - “words only” rule - words only are never enough to be a basis for adequate provocation; No “cool off period” (Muller - one month after finding out about infidelity)

WI & MPC - measured based on the totality of the circumstances and what a reasonably constituted person would do in the situation, there is no absolute bar for words alone and temporal aspect “cooling off”

This is a PARTIAL defense (lowers liability)

This defense is ONLY available for 1st int to 2nd int homicide!!!

Rules & Standards

1.     Rule – invites no exercise of judgment

a.     Crime to operate a motor vehicle with any detectable amount of a restricted controlled substance in the blood; once a person’s blood has been properly tested and the results are known, there is little ground to argue about whether the person has violated the statute.

2.     Standard – invites an exercise of judgment, even if all the facts are known, reasonable minds may nonetheless differ about liability.

a.     if liability depends on whether a person has acted “reasonably.”

Excuse & Justification

1.     Justification – A person who chooses to harm or endanger another may be justified if, under the circumstances, the person’s conduct was morally appropriate

a.     the police officer who shoots a terrorist in order to prevent the terrorist from killing hundreds of other people

2.     Excuse – A person who harms or endangers another may be excused if the person’s capacity to make rational choices about his or her behavior was substantially impaired.

a.    Mitigates moral blameworthiness

b.    severe mental illness

Jensen Factors for Utter Disregard for Human Life

Consider the totality of the circumstances and these factors when considering whether D showed utter disregard:

A.     What D was doing

B.     Why D was engaged in that conduct

C.     How dangerous the conduct was

D.    How obvious the danger was

E.     Whether the conduct showed any regard for human life

1.     Not limited to immediate conduct in your analysis of totality of circumstances

(Geske - homicide - speeding and pet dog killing two) think about swerving, braking, time of day, busy-ness

(Miller - injury - scary marine harassment in apt.) think about length of conduct, mitigation

Felony murder (common law)

Elements: If an individual causes the death of another during the commission of any felony, then the felon(s) are guilty of felony murder, as long as the death is distinct from the crime committed. 

Agency theory – only applies when the person who is the direct cause of death is someone in commission of the felony (not the intended victim)

Punishment: Typically punished in the same way as murder, which is often the death penalty. Cannot be used to elevate manslaughter to murder.

Felony murder (WI)

Elements: An individual causes the death of another human being while committing or attempting to commit a predicate felony listed in Wis. Stat. § 940.03.

Causation theory – person is liable anytime the commission of the felony results in the death of someone (cop, intended victim, etc.)

Punishment: Penalty enhancement of 15 years, subject to the judge’s discretion, added to the penalty imposed for conviction of the underlying predicate felony. 

(Oimen - organized robbery where victim killed robber) causation theory

Felony murder “while committing or attempting to commit”

“While committing or attempting to commit” encompasses the period of immediate flight

Period of immediate flight continues until the D reaches a place of temporary safety and is weighed by:

1.     Proximity/distance

2.     Time elapsed

3.     Totality of circumstances

(Oimen - organized robbery where victim killed robber) period of immediate flight

Homicide by Intoxicated Use of Vehicle - Wis. Stat. § 940.09

1. Operates a vehicle that causes death of another

2. Has detectable amount of restricted controlled substance in blood

No impairment needed - Strict liability rule  

Due Care defense for homicide by intoxicated use of vehicle

1. If he or she proves by a preponderance of the evidence that the death would have occurred even if he or she had been exercising due care and had not been under the influence of an intoxicant or had a detectable amount of the substance in their blood

2. Must be “an independent cause out of the control of the defendant” to raise a defense

Defense is available if a totally sober person exercising due care would still have caused the death

(Raczka - seizure while driving, wasn’t taking meds, remanded for material questions of fact)

This is a FULL defense (no liability)

Causation (WI)

Wisconsin has found that causation can be determined by examining the facts through the substantial factor test, asking whether the actions of the defendant were a substantial factor in producing the outcome.  

• This test looks at the totality of the circumstances to evaluate if the defendant’s actions constituted a substantial enough factor to be held responsible for the subsequent injuries. 

• Regarded without considering any medical malpractice that occurs as a result of the defendant’s actions.   

(Serebin - knowingly understaffed nursing home which may have been a substantial factor in causing death, SC said it didn’t) suggests the substantial factor test includes a but-for component, but whether it includes anything else is not totally clear. Ultimately, it will be up to the jury. 

Causation (common law)

1. But-for causation (i.e., cause in fact): that the death would not have occurred but-for something the defendant did and  

2. Proximity: that there was sufficient closeness between defendant’s conduct and the death (e.g., links in a chain).  

• This question is often framed as whether there was some independent, intervening cause between the defendant’s action and the victim’s injury, and whether that cause was foreseeable to the defendant. If so, the defendant is liable. Hiring someone to kill someone is an intervening cause, but it is not independent.  A gust of wind, by contrast, is an independent intervening cause.

• defendant in the initial crime should have foreseen a possible medical malpractice injury when injuring another. Thus, the court has found that medical malpractice does not act as an independent, intervening cause that would prevent the defendant’s actions as proximate cause to the death

Theft (common law)

1. To take the property of another (caption) 

2. Carry away that property (asportation) 

3. The taking and carrying away was a trespass (no consent) 

4. There was intent to steal (intent to permanently deprive another of that property; animus furandi) 

Theft (WI)

1.  D intentionally took and carried away, [or uses, or transfers, or conceals, or retains possession] of movable property of another

2. intentionally does so without consent

3. with intent to steal (permanently deprive/animus furandi)

Misdemeanor unless the value of the property exceeds $2,500, then felony

Caption element: (Genova - sold knowingly stolen motor) statute is NOT predicated on the taking AND carrying away, carries away modifies takes and all other verbs

Asportation element: (Johnson - turned ignition of car even though it wouldn’t start) slightest movement away from area that the object was intended to be is asportation

Permanent deprivation element: satisfied where the actor takes the property for temporary use and abandons it under circumstances amounting to “reckless exposure to loss.”

Self-help/claim of right (common law)

a.     Defense that defeats intent to steal (animus furandi) for money as well as specific property as long as the D genuinely believes they have a legally valid claim

b.     Doesn’t matter if D is wrong, just so long as the belief is genuine

Self-help/claim of right (WI)

a. The specific property test: Claim of right is a defense when it is the “specific property” that belongs to you that you are trying to reclaim

b. In WI, monetary debts don’t pass “specific property test” and don’t constitute a defense to claim of right

c. Belief doesn’t matter, it needs to actually be yours

(Edwards - tried to rob debtor for money owed to him) monetary debts don’t pass specific property test unless it’s the actual dollar bills that belong to you

Lesser included offense

An instruction for a lesser included offense may be granted when the element(s) distinguishing the lesser and greater offense are in debate

• E.g., utter disregard for human life in 1st degree reckless and 2nd degree reckless homicide

• The jury can then select one of the following options: convict of the greater offense, convict of the lesser offense, or acquit.  The jury cannot convict of both the greater offense and the lesser included offense.  However, if the defendant does not request that the jury be instructed on the lesser included offense (or the prosecutor), then the jury’s only options are to either convict of the greater offense or acquit

Theft from person (WI and common law)

1. Intentionally take property of another AND carries it away

2. Intentionally does so without consent

3. With intent to steal

4. Taking is from a person or corpse

WI - broad view - from the body of the person in possession of the property, or that the person had immediate control over the property (in an area over which the person has control and the person intends to exercise control over the item; arms/eyes reach)

Common law - narrow view - physically connected to the person (carrying purse, pick pocket)

Robbery

1. Intentionally takes property of another AND carries it away

2. Intentionally does so without consent

3. With intent to steal

4. Taking is from a person

5. D acted forcibly (against a PERSON) by either:

   1. Use of force, with intent to overcome resistance OR

   2. Threat of imminent force of owner or someone else who is present

(Walton - purse snatching)

• courts will tend to find that the intent to overcome resistance element is not satisfied when the defendant intends to avoid detection when taking from the other person, and thus are more likely to find the defendant guilty of Theft from Person rather than Robbery.

Armed robbery

1. Intentionally takes property of another AND carries it away

2. Intentionally does so without consent

3. With intent to steal

4. Taking is from a person

5. D acted forcibly (against a PERSON) by either:

   1. Use of force, with intent to overcome resistance OR

   2. Threat of imminent force of owner or someone else who is present to compel acquiescence

6. D used or threatened to use:

   1. A dangerous weapon or an article that appears to be a dangerous weapon

(Rittman - robbed bank w/o weapon but acted like he had one) If the victim’s belief that the D was armed with a dangerous weapon is reasonable, that is enough

• The reasonableness of a victim’s belief depends on the circumstances of the individual case, and that is true whether the robber makes a verbal representation alone, or whether the representation is accomplished by conduct or other physical evidence that he or she is in fact armed.

Fraud

1. Person obtained title to property (transfer of ownership)

2. Defendant intentionally deceived owner with false representation

3. Defendant intentionally defrauded the owner with the false representation

Obtains title element: (Meado - obtained lease for truck fraudulently) broad - received ownership/benefit of property, lease/money is sufficient

Representation element: (Ploeckelman - trucker was messing with milk samples but D said nothing and profited) non-disclosure is representation when:

1. The fact is material

2. Party with knowledge of fact knows other party is about to enter into the transaction under a that mistake

3. The fact is peculiarly and exclusively within the knowledge of one party and the mistaken party could not be reasonably expected to discover it

4. Objectively, the mistaken party would reasonably expect disclosure

Entity identity theft

1. Intentionally uses, attempts to use, or possesses with intent to use ID info/doc of the entity

2. Intentionally does so w/o consent or authorization

3. Intentional representation of consent/authorization

4. Intentionally does so with the purpose of either

   1. Obtaining anything of value OR

   2. Harming the reputation or property of the entity

Representation element: (Stewart - two bachelor’s degrees) requires nothing more than presenting a document under circumstances in which such presentation is an effective representation that the document is being used with authorization (implied)

Individual identity theft

1. Intentionally uses or attempts to use or possesses with intent to use ID info/doc of the individual (even if dead)

2. Intentionally does so w/o consent or authorization

3. Intentional representation of consent/authorization

4. Intentionally does so with the purpose of either

   1. Obtaining anything of value OR

   2. Harming the reputation or property of the individual OR

   3. To avoid civil or criminal process or penalty

Representation element: (Mason - used stolen card at Burger King) Broad test for “representation” is anything explicit or implicit to show consent or authorization (differs from literal “use”)

Anything of value element: (Peters - pretended to be ex-wife to reduce bail) statute expands what constitutes things of value

PTAC Aiding and abetting

1. Aid through either direct assistance or known moral support the commission of a target offense,

2. Intend to aid the commission of target offense, and

3. Crime actually committed that is either target or NPC of target

• Do NOT have to cause the crime to be committed (it could have happened anyway)

• Affirmative act is REQUIRED - pure passivity is not sufficient

• NO WITHDRAWAL DEFENSE (would have to stop the crime from being committed)

• Includes the immediate flight of the violator from the crime

• Cant attach to felony OR misdemeanor

(Tourville - gave robbers place to hide stolen safe) D need only be a willing participant; does not even require that D be present at the scene of the crime; does not need to perform essential element of the crime

(Ivy - robbery turned into armed robbery) Proof of intent is not required for conviction of the different offense if the offense was the natural and probable consequence of the intended crime to which the defendant was a party.

**Very few situations that would have a PTAC - Aid and Abet WITHOUT a PTAC – Conspiracy (exception: Spontaneous acts of aid)

PTAC Conspiracy

1. Agreement that target offense be committed;

2. Intent to commit target offense at the time of combining; and

3. Crime actually committed that is either target or NPC of target

• NPC is objective (consequences foreseeable to a reasonable person with D’s knowledge) very case dependent without bright line rules (Ivy)

• Does not require that the conspirators had any express or formal agreement, or that they had a meeting, or even that they all knew each other

• YES WITHDRAWAL DEFENSE - (1) Voluntarily withdraw; and (2) Notify other parties with time for them to also withdraw

• Can attach to felony OR misdemeanor

**Very few situations that would have a PTAC - Aid and Abet WITHOUT a PTAC – Conspiracy (exception: Spontaneous acts of aid)

Inchoate conspiracy

1. Agreement that the target offense be committed;

2. Intent for the target offense to be committed on at least part of the conspirators at the time of combining; and

3. Overt act in furtherance after conspiracy forms

• WI - Only 1 party needs to intend the crime be committed (e.g., unilateral).  Imagined or “fake” agreement is sufficient. (Sample - sold drugs to undercover cop)

• NO WITHDRAWAL DEFENSE

• The agreement can be proven circumstantially between the actions of the parties.

• Proof of a spoken agreement is not required.  An unspoken agreement or tacit understanding between the parties can be sufficient.  (Benoit - mom daughter fire)

• The parties must agree to commit the SAME target offense

• Target offense can be a felony OR misdemeanor

PTAC v. Inchoate crimes

PTAC

• Aid and abet

• Conspiracy

Inchoate:

• Attempt

• Conspiracy

• Solicitation

Differences:

1. Inchoate crimes are crimes in their own right, whereas PTAC is not a crime in its own right. 

2. Inchoate crimes establish criminal liability for a person’s intent to commit a target offense, whereas PTAC holds one person liable for the actions of another (dependent on guilt of perpetrator!). 

3. For Inchoate crimes, liability can result from intent coupled with certain actions even if the target offense was not actually committed.  For PTAC, liability can result from intent coupled with certain actions only if a crime is actually committed. 

Attempt

1. Sufficient acts toward target offense so that voluntary desistance is improbable 

2. Intent that target offense be committed 

• “Such that voluntary desistance is improbable” is a standard - use the “stop the film test” (Stewart - bus stop).

• If there is more than one reasonable conclusion, then the defendant has not yet done enough to be liable for attempt. (Henthorn - pharmacy refills)

• CANNOT convict for target offense with mens rea requirement of recklessness, negligence, or strict liability.

• NO WITHDRAWAL DEFENSE in WI because withdrawal is voluntary desistance (contradictory w/ element)

  • MPC - yes if complete and voluntary

• Impossibility defense: possibility of success need only be an apparent possibility to the defendant, not an actual possibility (Damms - abducted wife and fired but unloaded) (subjective)

• Target offense must be FELONY or:

  • Aggravated battery

  • Theft

  • Theft of farm-raised fish

Solicitation

1. Advises someone to commit the target felony

2. Intent that a felony be committed

• NO WITHDRAWAL DEFENSE - WI Once Solicitation is committed, liability cannot be undone by voluntary withdrawal before the target felony is committed.  (Boehm - solicited murder then called off)

• Crimes of recklessness CAN be solicited (Kloss - encouraged reckless conduct)

• The target offense must be a FELONY

Imperfect vs. incomplete attempt

Incomplete attempt: Unable to commit all acts necessary (Ex: assassin gets flat tire on the way), where is the line crossed?   

Imperfect attempt: Committed all acts necessary, yet was still unsuccessful  (Ex: assassin misses) 

• In addition, this can extend to just everything that the defendant thought they needed to do to complete the crime – Think Jabr, where the defendant thought she had fully committed the crime of entering the White House Grounds.

Affirmative defenses (evidence)

• D always has the burden of production

• The defendant must present some evidence in support of the defense sought – there must be enough evidence that a reasonable juror could find in favor of that defense

• The judge/court decides whether the burden of production for admissibility of evidence is met

Affirmative vs. failure of proof defense

Affirmative - All elements satisfied but liability is still eliminated (AP, withdrawal)

Failure of proof - Prevents the state from proving one of the elements so not all elements are satisfied

Full vs. partial defenses

ALL are affirmative defenses

Full - Eliminates charge completely (due care)

Partial - Reduces liability from greater crime to lesser crime involving less punishment (AP)

Self defense (lethal v. non-lethal force)

Lethal/deathly force - Intended (subjective) or likely (objective) to cause DGBH

If deadly force was NOT used in self-protection

1.     D has reasonable, actual belief in unlawful interference with D’s own person

2.     D has reasonable, actual belief that the amount of force was no more than necessary

If deadly force WAS used in self-protection

1.     D has reasonable, actual belief in unlawful interference with D’s own person threatening imminent DGBH

2.     D has reasonable, actual belief that the amount of force was necessary to prevent imminent DGBH

Force = “power, violence, or pressure directed against a person or a thing.” (Ray - cat lady trespass)

BE SURE to consider necessity

Necessity of force in defense !!!

a.     Retreat

c.   Restrain

d.   De-escalate

b.     Intervention

Provocation (self defense)

Someone who has engaged in unlawful conduct that is likely to provoke an attack and that does provoke an attack

1.     Do not lose the privilege of self-protection through provocative behavior unless it is unlawful conduct (like disorderly conduct)

Exception: if you are acting unlawfully and the person you are provoking poses reasonable risk of imminent threat of DGBH, then you regain privilege of self-defense, but you cannot use lethal force unless it is the last resort

2.     Liability still remains for underlying provocation regardless of subsequent actions (underlying punch/push, etc.)

Perfect self defense

1.     D reasonably, actually believed that he/she faced unlawful interference with his/her person [threatening imminent DGBH]

2.     D reasonably, actually believed that the amount/type of force used/threatened was necessary [to prevent/terminate interference] [to prevent imminent DGBH]

Force = “power, violence, or pressure directed against a person or a thing.” (Ray - cat lady trespass)

BE SURE to consider necessity

Imperfect self-protection/unnecessary defensive force

**ONLY for 1st degree intentional homicide

1.     D actually believed that he/she faced unlawful interference with his/her person threatening imminent DGBH

2.     D actually believed that the amount/type of force used/threatened was necessary to prevent imminent DGBH

Force = “power, violence, or pressure directed against a person or a thing.” (Ray - cat lady trespass)

(Head - BWS killed husband while on bed, McMorris evidence to subjective belief)'

BE SURE to consider necessity

3rd Party Harm - 939.48(3)

Allows for a defense for accidental harm to bystanders when acting in lawful self-defense unless the resulting harm is:

A.     1^st or 2^nd degree reckless homicide/injury

B.     Homicide/injury by negligent handling of a dangerous weapon, explosives, or fire

Castle doctrine

1. Someone is in the process of unlawfully entering or already inside dwelling, motor vehicle, or business

   1. Then the court can’t considerer retreat regardless of safety of fleeing AND

   2. The court “shall presume” a reasonable belief that the force was necessary to prevent imminent DGBH

(Chew - shot people fleeing in apt parking lot) - exclusive control test for “dwelling” - property over which the defendant has exclusive control

(Johnson - killed BIL in his own home) - relevant only as a procedural devise when it is the homeowner that was the killer and now the D 

Imminence & necessity in self defense

1. Common law - Necessity and imminence required for self-defense;

• Precluded from using force to prevent enemy getting reinforcements

2. MPC - Necessity “on the present occasion”

• “Immediately necessary and the unlawful force against which he defends must be force that he apprehends will be used on the present occasion, but he need not apprehend that it will be immediately used.”

• Looser time constraint than the imminence requirement

• Does not preclude using force to prevent enemy from getting reinforcements

3. WI - Necessity and imminence required for both lethal and non-lethal force

• An imminent threat is one that is happening now or is about to happen, and the danger is immediate and unavoidable

• Contrary to what might be implied by the statute language

Defense of others

1.     Intervener reasonably believed the third person faced an imminent unlawful threat

2.     Intervener had reasonable belief in the necessity of the intervention and the force used

• Think: “Could the victim have done what the intervener did in self defense?”

• Not limited to protecting other from crimes with mens rea element

• (Jones - ran to get knife to protect sister, unclear if she was still in danger)

BE SURE to consider necessity

Defense of property - 939.49(1)

1. D had a reasonable belief in unlawful interference with the their property

2. D reasonably believed that the amount/type of force used/threatened was necessary to prevent/terminate interference

(Ray - trespass is not a “use of force” that is protected under defense of property)

Can NEVER use lethal force for protection of property/BUT can THREATEN lethal force if reasonable

BE SURE to consider necessity

Defense of property of another - 939.49(2)

1. D had a reasonable belief in unlawful interference with the third person’s property

2. D reasonably believed that the amount/type of force used/threatened was necessary to prevent/terminate interference

3. The third person to whom the property belongs was:

   1. A member of immediate family or household

   2. A person whose property the actor has a legal duty to protect

   3. A merchant and the actor is the merchant’s employee or agent

   4. A librarian protecting library

(Kuhnke - landlords don’t count)

Can NEVER use lethal force for protection of property/BUT can THREATEN lethal force if reasonable

BE SURE to consider necessity

Necessity defense

1. D acted under pressure of natural physical force

2. Reasonable belief in imminent DGBH (to self or another) or public disaster

3. Reasonable belief that D’s act was the only way to prevent

1.     “Natural Physical Force” - Can the force be controlled?

A.     Yes – analysis done and can’t use defense

B.     No – continue to ask:

1.     What or who set the force in motion?

a.     Counts if it’s an act of god, no human agency (earthquake)

b.     Human agency

Might count if different human than D (match lit forest fire)

Would not count if D set it in motion

(Anthuber - shot up heroin in jail w/o promised methadone treatment) the force was out of control BUT he set the force in motion himself, so he cannot use the defense

Hypothetically, addiction could count if he got addicted due to medical malpractice

Coercion defense

1. D acted under pressure of human threat

2. Reasonable belief in imminent DGBH (to self or another) or public disaster 

3. Reasonable belief that D’s act was the only way to prevent

(Williams - took firearm from crazy GF) actor charged with violating a strict lability crime (carrying a concealed weapon) may successfully claim defense

Intoxication defense

1.     Involuntarily produced intoxicated condition (force, fraud, mistake) that:

a.     Renders the actor incapable of distinguishing between right and wrong in regard to the alleged criminal act at the time the act is committed

• Affirmative defense

  • CAN apply to strict liability and any crime

  • Extremely high level of intoxication required (unusual situation)

  • Follow typical burden shifting structure

b.     Negatives the existence of a state of mind essential to the crime

• Failure of proof defense

  • CAN’T apply to strict liability crime because there must be a mental state to beat

NO voluntary intoxication defense in WI

YES voluntary intoxication defense in MPC (if it negatives a required mental state (intentional crimes ONLY))

Volitional defect (unable to confirm conduct) CANNOT be applied to involuntary intoxication, only insanity defense (Anderson -was on ADD meds Strattera and murdered ex and her bf)

Circumstances for involuntary intoxication defense

a. Force (Force by a third party)

b. Fraud (Misrepresentation by third party)

c. Mistake (Accident by D or third party)

d. Medically prescribed drugs taken according to prescription (Gardner)

• Does NOT apply when:

  • D knowingly takes more than is prescribed or

  • Mixes with drugs or alcohol or

  • Voluntarily undertakes activity incompatible with the side effects

  • **NOT ADDICTION (Loveday)

Insanity (common law)

a. D had a mental disease or defect at time of crime

b. As a result, D lacked substantial capacity to:

Appreciate wrongfulness of conduct (cognitive defect)

One trial - State bears burden of persuasion for the predicate crime and to disprove NGI elements

Insanity (WI)

1. D had a mental disease or defect at the time of the crime

2. As a result, D lacked substantial capacity to:

   1. Appreciate wrongfulness of conduct (cognitive defect) OR

   2. Conform behavior to the requirements of the law (volitional defect)

Bifurcated trial:

1. Phase 1 – resolves everything in the case except for the insanity defense

   1. State has burden of proof beyond reasonable doubt

2. Phase 2 – exclusively resolves the NGI elements (assuming state wins at phase 1)

   1. Brings in expert testimony to evaluate D’s mental state

   2. D has burden to prove NGI elements beyond preponderance

(Magett - “memory blackout” does not work as mental defect because 50/50 that there was no criminal intent which always loses burden of proof)

(Kucharski - despite expert testimony, evidence showed ability to distinguish right and wrong (knew wrongfulness by fear of punishment) and ability to conform conduct (chose not to kill himself despite “voices”)

“Mental disease or defect” (NGI)

• Abnormal condition of the mind that substantially affects mental or emotional processes

• Identifies a legal standard that may not exactly match the medical terms used by mental health professionals. Not bound by medical labels, definitions, or conclusions as to what is or is not a mental disease or defect to which the witnesses may have referred

• A voluntarily induced state of intoxication by drugs or alcohol or both does not constitute a mental disease or defect (Anderson - was on ADD meds Strattera and murdered ex and her bf)

“Wrongfulness” (NGI)

Legally – something criminal unlawful

OR

Morally – something against societal values

• Conflict comes into play most in NGI deific decree cases

  • D says “I was acting under orders from God” “deity” - deific decree

  • Legal – loses

  • Moral – wins (maybe)

  • Judge should not instruct on what wrongfulness means, decided by the jury on a case-by-case basis

Mistake

An honest error, whether of fact or of law other than criminal law, is a defense if it negatives the existence of a state of mind essential to the crime

• Failure of proof defense NOT affirmative defense (prevents state from proving an element)

• Mistake about criminal law does not serve as a basis for mistake

• Not knowing of a statute’s existence is not a defense under mistake

• Not knowing about the constitutionality of an action is not a defense under mistake

• Scope of the meaning of the terms in the statute/constitution is not a defense (E.g., what “property of another” means)

• No defense for strict liability crimes or strict liability enhancement provisions (There must be a mens rea elements to be negatived)

• Mistakes about physical properties (MISTAKE OF FACT) can be a mistake defense

Entrapment (WI)

1. D induced by law enforcement to commit crime (inducement)

   1. Burden of persuasion: D by preponderance

2. D had prior disposition to commit the crime (bad character)

   1. Burden of persuasion: State beyond reasonable doubt

Inducement:

• The law permits law enforcement officers to engage in some inducement, encouragement or solicitation. So, entrapment will only be established if the officer used excessive inducement

• Hillshiem – undercover cop got D to buy drugs promising to give her some of the drugs, knowing she is an addict. She distributed drugs to him many times. Argued that cop was utilizing her addiction, entrapment argument failed

Bad character:

• Wide ranging evidence, State can use evidence of D’s acts before and after the offense, so D can present evidence to acts before and after the offense (Pence - refusal to sell on two occasions after, imminent departure from area)

Entrapment (MPC)

Throws out second WI element on predisposition

1. D induced by law enforcement to commit crime (inducement)

   1. Burden of persuasion: D by preponderance

Inducement is more narrowly defined:

• Making knowingly false representations designed to induce the belief that such conduct was not prohibited

• Employing methods of persuasion or inducement that create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it (people in general, objective)

No predisposition element because D’s prior convictions are typically inadmissible in evidence law, reflects belief that D won’t get fair trial if jury knows about them

8th Amendment - Cruel and Unusual Punishment

Robinson - attempted criminalization of being addicted to narcotics

• law that would imprison a person afflicted addiction, even when he has not touched any narcotic drug within the state’s borders or been guilty of any irregular behavior there, inflicts a cruel and unusual punishment

Powell - attempted to criminalize being drunk in public - conflict between (no binding precedent):

• No punishment without proof of an act (can’t criminalize a cold but could criminalize a sneeze)

• No punishment without proof of a volitional act (can’t criminalize a cold and can’t criminalize a sneeze because it’s not volitional)

City of Grants Pass - criminalizes sleeping in public spaces

• No punishment without proof of an act WINS (can’t criminalize homelessness, but CAN criminalize an act that encompasses essential character of being homeless because it is an act (though maybe not volitional)

Constitutional Challenges (four types)

Procedural challenges

1. Affirmative defense: Criminal D facing charges raises the constitution as a defense to liability

2. Preemptive defense: People who fear they may be subject to criminal charge can preemptively sue the state civilly asking a judge to declare a statute as unconstitutional

Practical challenges:

1. “Facial”: The statute/law is fundamentally unconstitutional that it cannot be enforced against anyone

2. “As applied”: This law could be applied constitutionally to others, but there are particular aspects to my situation that make it unconstitutional to

Ex Post Facto Clauses

A legislature may not impose a new criminal prohibition on a retroactive basis that:

1. Criminalizes an act that was not previously a crime

2. Imposes punishment on someone not previously subject to punishment (procedural) (Stogner - sec crimes where SOL ran out before new statute)

3. Increases punishment (sentencing) OR

4. Makes proof of guilt easier (evidentiary)

Rationale: fair notice, separation of powers

14th Amendment - Due Process (deprivation of life, liberty, or property without due process of law)

Fair Notice (Lambert - LA ordinance requiring registration within 5 days of being in the city for anyone who has committed a felony)

1. Crimes of omission/passivity (ignorance of the law is no excuse for crimes of commission!!)

2. No actual knowledge of the law (subjective)

3. No probability of knowledge (objective – a reasonable person would not have suspected the law existed)

Vagueness (Kolender - Violation of a criminal statute that requires persons who loiter or wander on the streets to provide a “credible and reliable” ID; Manning - “habitual” “drunkard”)

1. Test for vagueness – penal statute defines the criminal offense with sufficient definiteness that ordinary people (objective) can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement

2. Where the legislature fails to provide minimal guidelines, a criminal statute may permit a standardless sweep that allows police, prosecutors, and juries to pursue their personal predilections

Lambert would not have claim under vagueness because the statute was explicit

Lawson (Kolender) would not have a claim under fair notice because he had actual knowledge of the law (arrested 15 times)

Constitutional Burdens of Proof

Due process clause requires that the state prove all elements of a crime beyond a reasonable doubt in order for there to be a criminal conviction

BUT legislature has complete freedom over affirmative defenses and burden allocation

(Mullany - provocation is an element of malice aforethought which is element of murder in Maine, unconstitutional)

Vs.

(Patterson - provocation NOT element of NY murder, so constitutional)

Presumptions and Inferences in Jury Instructions

Allowed – Permissive inference – suggests to the jury a possible conclusion to be drawn if the state proves predicate facts, but does not require the jury to draw that conclusion (Ulster County)

NOT allowed - Mandatory (rebuttable) presumption – instructs the jury that it must infer the presumed fact if the state proves certain predicate facts (unless the D persuades the jury not the make such a finding) (Francis)