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Cooley Law School - 1L


Focuses on moral culpability. Places an emphasis on specific deterrence by punishing the offender.


Focuses on the greater good for the community. Places an emphasis on general deterrence.

Corpus Delicti

"Body of the crime" - Consists of two elements: In murder, death and the criminal agency responsible for the death.

Establishing Corpus Delicti

Circumstantial evidence is allowable. Uncorroborated confessions are not. Not necessary to have a body.

Actus Reus

The physical act required by a crime.

Mens Rea

The mental state required by a crime.


All crimes punishable by imprisonment over 1 year or by death

Common Law Felonies

1. Manslaughter
2. Murder
3. Rape
4. Sodomy
5. Robbery; Burglary
6. Arson
7. Larceny
8. Mayhem


All crimes punishable by imprisonment of 1 year or less, or by fine only

Common Law Murder

The malicious killing of another person.


The mens rea in common law murder. Can be established in one of four ways:
Intent to kill; OR
Intent to do great bodily harm; OR
Depraved heart; OR
Felony murder

Depraved Heart Murder

a. Conscious disregard for human life
b. Very High Risk
c. No provocation, justification or cause

Very High Risk

1. Driving at excessive speed when people are around
2. Shooting into occupied areas
3. Throwing stones from the roof of a tall building onto the busy street
4. Piloting a speed boat through a group of swimmers
5. Swooping a plane as to risk the decaption of motorists

Common Law Felony Murder

A death that occurs during or after the commission of a felony. Doesn't matter whether the death was purely accidental.

Common Law Felony Murder Limitations

a. Inherently dangerous
b. Reasonably foreseeable- causal connection between the death and the action

Inherently Dangerous

Only applies to felony murder to those felonies which are inherently dangerous such as burglary, arson, assault, rape, and kidnapping (BAARK).

Accomplice Liability

Liability for a death occurring during the commission of a felony can fall upon any member of the criminal agency involved with the felony.

Common Law Involuntary Manslaughter/Criminal Negligence

Engaging in conduct that the actor should have known posed a very high risk of death or great bodily injury.

Common Law Involuntary Manslaughter

1. Reasonably Foreseeable; AND
2. Unreasonable (standard of reasonable person); AND
3. High Risk; AND
4. Substantial Deviation from the reasonable person

Common Law Voluntary Manslaughter

The unlawful killing of a human being with malice aforethought.

Common Law Voluntary Manslaughter

Requires three elements: 1. Heat of passion- subjective 2. Legally Sufficient Provocation- objective reasonable person 3. No reasonable cooling off period.

Legally Sufficient Provocation

a. Was D behavior consistent with human nature? (retributive)
b. Was it so emotionally intense? (utilitarian)
c. How many future cases like this could there be? (utilitarian)
d. Social, Cultural, Political consideration (classification of people you're around)?

Heat of Passion

Any intense, vehement emotional excitement that prompts violent action.

Statutory 1st Degree Murder

A willful, premeditated, deliberate killing of another person. Killing by poison or lying in wait. Killing during the commission of one of the enumerated felonies.

Willful, Premeditated and Deliberate

Purposely, with enough time to frame the design to kill, and after considering the consequences.


Intent to kill


Time to think or reflect


the absence of legally adequate provocation

Statutory Felony Murder

Intent to commit an inherently dangerous felony (BAAR) or make a felonious escape.
1. Intent to commit an Inherently Dangerous felony
2. Causation
3. Independent felony

Statutory 2nd Degree Murder

All other murders not falling under 1st degree are 2nd degree by default.
Great Bodily Harm
Depraved Heart Murder
Felony Murder- all other inherently dangerous felonies

MPC Murder

1. Purposely;
2. Knowingly; OR
3. Recklessly Manifesting Extreme Indifference for Human Life (very high risk) *mention that this is the same as depraved heart; OR
4. Felony Murder (BAARK felonies)

BARRKS Felonies

Burglary, arson, rape, robbery, kidnapping and sexual assault

MPC Reckless

Defendant acted in conscious disregard of a substantial and unjustifiable risk manifesting an extreme indifference to human life.

MPC Manslaughter

Killing someone recklessly or under the influence of an extreme emotional or mental disturbance.

Extreme Emotional or Mental Disturbance

Heat of passion (considered objectively) and diminished capacity (considered subjectively).

MPC Heat of Passion

Objective/subjective standard - reasonable explanation or excuse judged by reasonable person in defendant's circumstances. Words can be enough. Does not require legally sufficient provocation or lack of a cooling off period.

MPC Negligent Homicide

a. Reasonably foreseeable; AND
b. Unreasonable; AND
c. High Risk; AND
D. Substantial Deviation from a reasonable person

Common Law Rape

Forced sexual intercourse by a male upon a female not his wife
1. Sexual intercourse achieved
a. By deception or fraud
b. While female is asleep or unconscious, OR
c. If female is not competent to consent


By actual physical force or threats of actual physical force that can be carried out. If V submits out of fear of force that D hasn't threatened but D takes advantage of that fear it fulfills the force requirement.


Victim must resist to the utmost.

Statutory Rape

Intercourse by a male with an underage female not his wife

Corroboration Requirement

Requires the victim's testimony of the rape to be corroborated through other evidence in order to be admissible.

Rape Shield Laws

Evidence of the victim's character regarding her past sexual conduct is inadmissible unless the past conduct involved sexual relations with the defendant.

Common Law Battery

An unlawful harmful or offensive contact intentionally caused by defendant resulting in an offensive touching or bodily injury

Unlawful, harmful

No injury is required. Does require some touching.


No injury required, judged by the reasonable person standard.

Criminal Negligence

Acting with high degree of risk that foreseeable injury will occur.

Aggravated Battery

a. Means used to perpetrate offense
b. Resultant harm
c. Special status of victim

Statutory Battery

An unlawful, harmful or offensive contact caused by defendant which the defendant had the intent to cause or caused as a result of criminal negligence.

Common Law Assault

Intentional creation of imminent apprehension of battery


Victim does need to be aware, otherwise they couldn't have been apprehensive.

Attempted Battery

A serious attempt to commit a battery, but attempt failed
Ex. LOADED gun

Statutory Assault

Includes domestic violence clause. Includes assault with the intent to commit murder and assault with the intent to commit great bodily harm.

Aggravated Assault

a. Intent to create a more serious crime
b. Means used to perpetrate the offense
c. Special status of victim (assault of police officer in performance of duty)

Common Law Kidnapping

Forcible movement or secret confinement against the victim's will and without authority.

Factors to Determine Forcible Movement

1. Time elapsed 2. Distance travelled 3. Manner of movement 4. Exposure to increased risk 5. Whether, in the case where the kidnapping occurs with another crime, the movement continued after the crime was committed.

Secret Confinement

Seclusion of the victim leads to increased harm.

Factors for Determining Secret Confinement

1. Length of confinement 2. Character of the place of confinement 3. Character of victim - age, strength.

Common Law Burglary

Breaking and entering of a dwelling of another in the night time with specific intent.


Any physical force, no matter how slight. Can be satisfied if someone allowed in the home exceeds their authority.Can also occur through constructive breaking when someone enters the home through fraud.


Any intrusion of any part of the body through any opening.


Any building used for human habitation including outbuildings and curtilage. Doesn't matter if no one is home. If the dwellers have permanently departed the structure with no intention of returning.

Of Another

No authority to be there. Not ownership.

Specific Intent of Common Law Burglary

Intent to commit a felony upon the moment of entry.

Deadly Force in Self-Defense

Aggressor Doctrine
Imminent Threat
Duty to Retreat
Reasonableness of Response
All must be met to establish self-defense, if not, imperfect privilege

Proportionality Doctrine

Threat of force has to be proportional to the force used to defend.

Aggressor Doctrine

The defendant cannot be responsible for starting the confrontation. Must have "clean hands" unless he retreats or otherwise effectively communicates his non-aggression.

Imminent Threat Doctrine

Threat of death or great bodily harm must be imminent

Duty to Retreat

Must retreat if it's reasonably safe but not if at home or work. Majority view is that there is no duty to retreat.

Reasonableness of Response

Force must be reasonable for threat, force=force

Imperfect Privilege

When a defense is not fully established it can be used as an imperfect privilege that mitigates the charges down

Reasonable Perception Doctrine

Threat must be reasonable and honestly believed by defendant. Can consider: physical characteristics of the attacker, special skills of the attacker known by defendant and emotional and mental characteristics of the attacker. BUT NOT OF THE DEFENDANT!!!

Common Law Deadly Force by Police for Fleeing Felons

Deadly force is permissible if there is probable cause that the suspect poses a significant threat of death or serious injury to the police or others and even then the deadly force must be reasonably necessary

Use of Deadly Force in Common Law Defense of Habitat

If defendant reasonably believes that it is necessary to prevent an imminent and unlawful entry, deadly force is permissible

Make My Day Jurisdictions

Deadly force is permissible if the defendant has a reasonable fear that the felon might use any physical force no matter how slight.

MPC Use of Deadly Force for Defense of Habitat

Deadly force is permissible if the defendant has an honest belief that the felon poses threat of death or great bodily harm. Belief does not have to be reasonable.

Deadly Force in Defense of Habitation

Defendant may use force to prevent unlawful entry. Four jurisdictions: Ceballos, MPC, Make My Day, Common Law


Defendant must have an honest and reasonable fear that the felon poses a threat of death or great bodily harm at the time. Doesn't matter if it's a mistake.


a. Ignorance or Mistake of Fact or Law
b. Mental Disease or Defect
c. Intoxication
d. Duress
e. Necessity
f. Consent
g. Entrapment
h. Justification

Ignorance of Law

Only a defense to specific intent crimes.
No defense unless the defendant relied on the information from a governmental entity whose job is to know the law, the statute itself requires knowledge of some other body of law, the statute requires knowledge of the prohibited act or it was a complex mala prohibita crime

Mistake of Fact

Defense for specific intent crimes only; requires an honest belief no matter how unreasonable.
Defense for Negligence and General Intent crimes; an honest AND reasonable belief
Strict Liability; No defense
MPC; Defense to any crime

Voluntary Intoxication

Only a defense to specific intent crimes.

Common Law Duress

D contends that, because of human threat, he/she is the victim
Not a defense for murder at common-law - imperfect privilege
1. Imminent injury
2. Did the threatened injury outweigh the illegal act?
3. Did the defendant negligently place himself in the situation?

Elements of Common Law Duress

1. Another threatened to kill or injure the defendant or a 3rd party.
2. Defendant reasonably believed that the threat was genuine.
3. The threat was imminent.
4. No reasonable means of escape
5. Actor was not at fault for exposing himself to the threat.

MPC Duress

Defendant engaged in conduct because he was coerced by the use or threatened use of unlawful force against his person which a person of reasonable firmness would be unable to resist. No imminent threat!! Defense for Murder but not Negligence!!


Generally, it's not a defense except for larceny and common law rape, mutual combat, and kidnapping.


The luring, by a police officer, of a person into committing a crime so that he may be prosecuted for it
Defense available if proves by preponderance of evidence that individual acted in response to entrapment and not predisposed criminal mind.
Subjective: whether D was predisposed
Objective: Did police implant in innocent mind? Were they overly jealous.


Utilitarian view
Society approves defendant's act
Focuses on act-looks at defendant's conduct
Deserves neither criminal liability or censure
Example: Self-Defense


Rebtributivist theory
If fully established, complete defense
Society does not approve of defendant's act
Withholds criminal sanctions
Examples: duress, insanity, diminished capacity


Can be a defense to any crime. Defendant suffers from a mental disease or defect and the defendant was acting affirmatively as a result of the mental disease or disturbance. There is a causational link between the mental disease or defect (MDD) and the crime.

Causational Links

Irresistible Impulse

M'Naghten Test

Defendant is insane if, at the time of the act, he was laboring under such a defect of reason, arising from a disease of the mind that he:
1. Did not know the nature and quality of the act that he was doing
2. If he did know it, he did not know that what he was doing was wrong

Product Test

The defendant is not criminally responsible if he can establish that the act was the product of the mental disease or disturbance

Irresistible Impulse

The defendant knew what he was doing was wrong but was unable to control his conduct; lacked the power to choose between right and wrong


A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or disturbance he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law

Federal Insanity Defense Reform Act (FIDRA)

Requires a showing that the defendant had a severe mental disease that rendered him unable to appreciate the nature and quality of the wrongfulness of his acts at the time. Affirmative defense that has to be shown with clear and convincing evidence. Experts cannot testify on the ultimate issue.

Guilty but Mentally Ill (GBMI)

Defendant has a substantial disorder or significant impairment but not insane; the prosecutor can prove both the actus reus and mens rea; defendant is guilty but may be able to get treatment as opposed to jail time.

Diminished Capacity

Defendant suffers from a mental disease or defect, not insanity which creates a failure to prove specific intent. Not a complete defense but a mitigating factor.

Strict Liability

Crimes by statute - prosecutor only has to prove that the defendant violated the statute and the he knew or should have known about the statute.

Strict Liability Crimes

1. Statutory Rape
2. DUI
3. Selling liquor to minors
4. Administrative crimes (Ex. Truck driver carrying too much weight)

Guideposts for Strict Liability

Mala prohibita/mala in se
Statutory language
Historical treatment
Stigma and punishment
Legislative history and intent
Structure of statutory intent
What verb does adverb modify?

Considerations for Strict Liability

1. Is the wrong civil or criminal?
2. If it's civil, does the statute have a mens rea requirement?
3. If it's a true crime, does the statute eliminate a mens rea requirement?
Generally, imposing imprisonment without a mens rea requirement violates due process

Conspiratorial Liability

Acts in furtherance of the conspiracy; reasonably foreseeable or natural consequences of the conspiracy

Accomplice liability

Acting with culpability sufficient for commission of offense
Acting with purpose of promoting commission of offense
1. Solicits another
2. Aids another in planning
3. Fails in legal duty to prevent

Mens Rea of Accomplice Liability

Intent to assist the primary party
Specific intent that the crime be committed
Liable for any natural or probable consequences

Accomplice Liability Defenses

1. Alleged accomplice is victim of offense
2. Terminates complicity prior to offense
3. Warns police or tries to prevent offense

General Intent

a. An awareness of all factors making up the crime
b. A jury can infer general intent from doing of the act

Common Law General Intent Crimes

1. Rape
2. Battery
3. Involuntary Manslaughter
4. Depraved Heart Murder

General Intent Defenses

1. Mistake of Fact
2. Involuntary Intoxication

Common Law Rape Mens Rea

Subjective: Defendant knew she didn't consent
Objective: Defendant should have known she didn't consent.

CSC Statutes

1st and 3rd require penetration, 2nd and 4th require sexual contact. Aggravating factors can bump them up. Do not require corroboration, gender neutral, no spousal exception.

Specific Intent

Doing an act with specific intent to cause the social harm
Must have the general intent to do the act; AND
Must have the specific intent to achieve the consequences of the crime

Specific Intent Crimes

1. Assault
2. Attempt
3. Kidnapping
4. Conspiracy
5. Robbery

Mala Prohibita/Mala in Se

Crimes without fault/Morally wrong crimes

Malum Prohibitum

Crime that is wrong because the legislature says it is
Ex. Traffic violation

Malum In Se

Crime that is inherently evil
Ex. Battery and Larceny

Incohate Crimes

1. Criminal Attempt
2. Criminal Solicitation
3. Criminal Conspiracy


i) An agreement;
ii) Between 2 or more persons;
iii) To accomplish an unlawful purpose; and
iv) With the intent to accomplish that purpose


Conspiracy defense - No defense to the conspiracy but avoid Pinkerton liability.
MPC - Affirmative defense with complete and voluntary withdrawal. Don't have to stop the crime just renunciate criminal purpose.


Solictation - MPC, could be a defense if defendant tried to dissuade and renunciate.

Fraud in Fact

Telling the truth, but committing a crime once inside. Actual deceit; concealing something or making a false representation with an evil intent to cause injury to another.
Ex. Doctor supposed to perform pap smear and performs it, but sexually assaults female.

Fraud in the Inducement

Telling a lie. The use of deceit or trick to cause someone to act to his/her disadvantage.
Ex. Signing an agreement or deeding away real property


MPC does not distinguish between general and specific intent crimes

MPC Defenses

1. Intoxication (if it negates the mens rea of the crime)
2. Ignorance or Mistake (if it negates the mens rea)


Not an element. Helps to establish intent.

Larceny by Trick

Mere possession of the property of another without legal title by D
Ex. con games, schemes, and swindles

Larceny by False Pretenses

i) Obtaining title to the property;
ii) of another person;
iii) through the reliance of that person;
iv) on a known false representation of a material past or present fact; and
v) representation made with the intent to defraud


Where an act is justified, no crime has been committed, notwithstanding what might otherwise be a criminal result


a) Minimum requirement of some sort of act
b) Where duty imposed, an omission fulfills required act
c) Thoughts, desires, wishes insufficient to constitute crime


Compulsion (coercion) by threat or force


If a person has a reasonable belief that he is in imminent danger of unlawful bodily harm, he may use that amount of force reasonably necessary to prevent such harm, unless he is the initial aggressor


When intent required, the criminal act must occur as a result of the intent. The D's act must cause the particular result made unlawful by statute.

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