Failure of Proof Defensive Theories and Rebuttals

Failure of Proof Defensive Theories and Rebuttals:
- Failure-of-proof defense: not a true defense in that it doesn’t add another element, rather asserts
that P can’t prove the elements BARD as is required. Attacks P’s evidence.
- Rebuttal: similar to failure-of-proof defense, but involves factual testimony offered by D that
inferentially contradicts an element (ex. alibi). D offers a new factual theory that collides w/P’s
theory.
- Alibi: inferentially contradicts that D committed the crime, which is an essential element that P
must prove BARD. Only rebuts D’s guilt inferentially. Generally mere denial of presence at a
crime scene doesn’t earn alibi instruction, but testimony establishing D’s presence at another
specific location does.
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o Some cts instruct the jury about it, telling jurors that they must acquit if witnesses placing
D away from the crime scene have created a reasonable doubt (logically, this instruction
shouldn’t be necessary, but it counteracts the pejorative nature of the term “alibi”).
o Many jurisdictions require D to give pre-trial notice before offering an alibi.
o Fed Rules require the gov’t to give notice if it intends to call rebuttal witnesses to a
noticed alibi to enable D to investigate.
o Needn’t be fully persuasive as long as it creates reasonable doubt, which often causes a
dilemma for D’s atty re: whether to present alibi witnesses who aren’t totally credible.
One possible solution: put the strategic decision on the record by having D answer ?s
from ct about the decision to omit alibi witnesses (note: this still failed in Jacobs).
- Generally, however, rebuttals and failure of proof defenses aren’t really separate legal categories.
- In some jurisdictions, self-defense is a defense, while insanity is an affirmative defense.
- Note: The first element of every crime is that it was committed by D charged w/it; it is part
of P’s burden to prove this BARD.
- An effort to raise a reasonable doubt about any element or to introduce a contradictory theory or
rebuttal isn’t a defense. Rather these are efforts to prevent P from carrying its burden of proof.
- State v. Deffebaugh (KS Sup Ct, 2004): involved a statute requiring D provide notice before
offering evidence of an alibi. Ruled that an alibi may be given even when D has failed to give
notice of the alibi witness if P otherwise was aware of such witness and could have
previously questioned him.
- State v. Tutson (CT App. 2004): held that evidence that a described vehicle was in a specific
distant location wasn’t an alibi for purposes of the notice requirement, even though the vehicle
was identified w/D (note: KS probably would’ve ruled differently based on Deffenbaugh).
- United States v. Llinas (1st Cir. 2004): held that documents weren’t “witnesses” and therefore
employment records dealing w/D’s presence at work weren’t covered by the notice-of-alibi
requirement.
- Clinkscale v. Carter (6th Cir. 2004): although the ct denied habeas corpus, a concurring judge
invited D to file another petition asserting that his counsel was ineffective for presenting an alibi
that the jury was unlikely to credit.
- Jacobs v. State (FL, 2004): granted a hearing to determine whether counsel was ineffective for
not presenting alibi witnesses he’d noticed at the pretrial stage, even though the fact of pretrial
notice lends itself to the conclusion that the decision may have been strategically better for D.
Justification: (see definition above)
- Not all cts agree on whether certain defenses fall under justification, excuse, or another category.
Ex. provocation.
- The difference b/t justifications and excuses sometimes determines policy difference in
treatment. If the conduct was justified, the law may be broader in exonerating D than if it’s
merely subject to an excuse.
- The scant info available suggests that formal defenses are generally important to the theory of
crim law, but seldom used at trial, some defenses are almost never used, and they play only a
minor role in the non-judicial resolution of crim cases. Self-defense leads the pack, and is only
used in 2% of trials. The possible use of a defense had an impact in 7% of cases, almost always
by affecting a plea agreement or leading to dismissal.
Self-Defense:
- Self-defense: a justification defense for a proportionate response to an imminent threat.
o A vague threat of future violence or use of excessive force may not be justified. In many
jurisdictions the use of deadly force is restricted more than that of non-deadly force.
o A mistaken belief in the need for it can raise it in most jurisdictions (ex. toy gun), as
long as there was an objectively reasonable belief that the attack was real (v. an honest
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but unreasonable subjective belief). However, the MPC has a subjective standard,
requiring only a subjective but honest belief in the need for self-defense, with no
requirement of reasonableness or imminence.
- Imperfect self defense: an unreasonable belief, not sufficient for acquittal, but sufficient to
reduce the crime’s grade. Many states offer an incomplete defense, lessening the charge from
M to MS, where D’s belief that she was under immediate attack is honest but unreasonable.
Some allow for this where D provokes the initial conflict. The MPC recognizes this where the
self-defense belief is negligent or reckless, but may not completely exonerate D.
- The castle rule: Many jurisdictions make an exception to the retreat rule, holding that there’s no
duty to retreat if one’s attacked in his own home. May also apply at one’s place of business.
o If one’s attacked in his place of work by a coworker, the MPC provides that he has a duty
to retreat before he can use deadly force in self-defense.
- The retreat rule: while one is never required to retreat before using non-deadly force against an
initial aggressor, some jurisdictions require retreat before using deadly force in self-defense,
if retreat can be safely achieved.
- The true man rule: there’s no duty to retreat if someone attacks you (in your home or wherever).
Is the case in many Western state.
- The aggressor rule: in many states, if D started the conflict, he can’t claim self-defense,
unless he has completely withdrawn.
- Most cases on self-defense turn on the issue of reasonable perception of the imminence of the
unlawful threat of harm facing D.
- IL statute allows such conduct to the extent that D reasonably believes it’s necessary to defend
himself or another against such other’s imminent use of unlawful force, but only justifies force
intended or likely to cause death or great bodily harm if he believes it’s necessary to prevent
imminent death or great bodily harm to himself or another, or commission of a forcible felony.
- NY’s statute allows it unless D provoked the actor w/intent to cause physical injury to another, D
was the initial aggressor (unless he later withdrew and effectively communicated such
withdrawl), or the force involved was the product of combat by agreement not specifically
authorized by law. Similarly requires force to be proportionate, but notes that there’s no duty to
retreat if D is in his own home and not the initial aggressor, or a cop (or assisting a cop), or
reasonably believe the other person is trying to commit kidnapping, forcible rape, robbery, and
burglary may compel use of deadly force.
- Self-defense straddles the tension b/t allowing citizens to protect themselves and punishing those
who unnecessarily kill/injure others.
- Boget v. State (2002): while most self-defense cases arise in the homicide or attempted homicide
context, the defense can also be invoked when non-deadly force is used, and is available as a
defense to other crimes, at least those of the assaultive type.
- People v. Goetz (NY COA, 1986): D shot 4 black youths when one asked him for $5. Ruled that
D’s belief in the need for self-defense must be reasonable. This can be based on the
circumstances facing D or his situation, but it still must be based on the objective reasonableness
of the ordinary person. D was later acquitted of all but the weapons violation.
Battered Spouse Syndrome (BSS):
- Battered Spouse Sydrome (BSS): sufferers commonly experience battering cycles, learned
helplessness, escalation of abuse, and hyper-vigilance. May be used as a defense to crim charges.
Such an instruction might increase D’s credibility in otherwise extreme cases. The usual
accommodation created by the law is reduction to voluntary MS.
- Most juris allow evidence of some subjective elements in determining who RP is and expert
evidence to address culturally-based issues re: reasonableness of D’s belief in the need for self-
defense (esp. when V was sleeping or unconscious when killed).
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- Some critics argue against this subjective standard, while feminists argue that the RP standard is
actually biased toward men and view reluctance to admit the defense and the perceived need for
expert testimony is a symptom of the law’s masculine bias.
- Evidence in BSS homicide cases usually comes mainly from D alone, and may seem dubious in
some cases; the difficulty becomes weeding out disingenuous claims from genuine ones.
- State v. Edwards (Missouri COA, 2001): D, 61, shot and killed her abusive husband in their store
because she thought he was going to kill her. Held that the standard self-defense instruction
wasn’t sufficient because it lacked a relevant subjective reasonableness specific to the syndrome.
Rule: the pattern instruction for self-defense is inappropriate for BSS cases b/c it improperly
applied the RP standard w/o reference to BSS, and precluded the jury from determining whether
D was suffering from BSS and if so, whether she had a reasonable belief that she was in
imminent danger based on what an otherwise reasonable person w/BSS would think. Shows how
“reasonable person in D’s circumstances” should be applied.
Defense of a Third Person:
- The law usually bases defense of another on that person’s right to self defense.
- Generally, the modern rule is that a reasonable belief in the 3rd person’s right of self-defense,
even if mistaken, provides a defense. Proponents of this suggest that it encourages citizens to
help each other and counteracts ppl’s unwillingness to get involved. This is the modern trend.
- The MPC approach is even more permissive: a subjective belief is enough.
- Some jurisdictions have followed a more limited defense than the reasonable belief rule - the
step into the shoes approach. Proponents of this view argue that is discourages the escalation of
violence, encouraging ppl to investigate before exacerbating a fight.
o People v. Young (NY, 1962): narrowly limited the right of defense of a third person,
holding that D had no greater right to defend an arrestee than the arrestee had for himself,
thereby rendering D’s defense invalid b/c he was mistaken about the situation.
- Covarrubias v. State (TX COA, 2000): the man who D purported to defend was actually the
unarmed aggressor in the fight, having attacked V and initiated a fist fight b/t them. Rule: D is
justified in using deadly force against another to protect a third person when the latter is
threatened by circumstance that would entitle him to protect himself, and D believes intervention
is immediately necessary.
Defense of Property (and of Habitation):
- The general principle is that moderate but not deadly force may be used to defend property
in certain instances. However, the MPC allows use of deadly force to protect property:
o In response to an attempt to dispossess the defender of his dwelling.
o In response to an attempt to commit certain felonies involving violence against the
defender.
- Many States allow greater use of deadly force than the MPC does.
- Many of the hardest cases involve poor working ppl who’re subjected to repeated burglaries and
thefts that they content cant be prevented other than by deadly force and that literally cause the
losses of their modest livelihoods.
- People v. Ceballos (CA Sup Ct, 1974): D had a trap gun in his garage due to prior burglaries; it
shot boys in an attempted burglary. Held that ppl do not have the right to use deadly devices that
discharge in their absence in order to protect their homes. Rule: a trap gun is unjustified use of
force even where if present D could have properly used deadly force b/c it lacks discretion
and creates too high a risk of killing innocents.
Law Enforcement:
- While an arrest formally fits the elements of assault, it isn’t a crime due to recognition of a law
enforcement defense may exonerate D, usually even if it was unlawful, as long as it’s undertaken
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under an honest or reasonable believe in its lawfulness. In fact, most jurisdictions don’t limit the
defense to peace officers, since citizens are allowed to make certain limited categories of arrests.
- The common law permitted even deadly force for the arrest of a fleeing felon, at least when
capital punishment applied to the underlying felony. The MPC, however, modified this, limiting
such force to cases where the underlying felony involved use or threat of deadly force or where
delayed apprehension would have created a substantial risk that the felon would’ve caused death
or serious bodily harm.
- Tennessee v. Garner (1985): imposed civil liability for damages pursuant to the Constitution and
applicable civil rights statutes when a peace officer used deadly force to stop a fleeing non-
violent felon (basically constitutionalized limits on the use of deadly force similarly to MPC).
o But this may not govern how the State defines the law enforcement defense in its
criminal statutes.

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Circumstances as Crime Elements

Circumstances as Crime Elements:
- Criminal statutes often include “circumstances” as additional elements of a crime. These are
based on policy decisions about the ppl / activities / situations we want to protect (ex. “at night”
in burglary, we want ppl to be safe when sleeping).
- Generally, the more circumstances in the statute, the fewer ppl who’re likely to violate it.
- Commonwealth v. Noel (PA Sup Ct, 2004): D was riding a horse drunk, collided with a pickup
truck. The statute forbade operation of a vehicle while intoxicated. Held that where a drunk
driving statute is vague in its applicability to animal riders, it cannot be properly applied to
an intoxicated horse-rider.
Causation as a Crime Element:
- “But for” causation: A universal limit on crim responsibility that D can only be convicted if he
actually caused the harm required in the statute. Requires a link b/t D’s acts or omissions and the
harm. Remains even if there’s another contributing agency. Some jurisdictions require only this,
but many also require prox cause.
- Proximate (aka policy-based, legal) causation: considers whether it’s fair to hold D criminally
accountable for the result. Such issues often arise when D does an act and another person does a
2nd act contributing to the result (intervening cause):
o Dissent: DP just requires statutes contain standards so RP understands what’s forbidden.
o Independent intervening cause: one that’s not intended, or reasonably foreseeable.
Breaks the chain of causation, alleviating D of liability for the final result.
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o Dependent intervening cause: sufficiently related to D’s conduct to merit holding D
responsible for the harm, foreseeable to D, so he’s still liable.
o D must take V as he is, so D’s still liable even if V’s pre-existing condition was involved.
- Doctrine of concurrent causation: where each D’s conduct would’ve been sufficient to result in
the harm, each D can be prosecuted. D’s conduct need only be a cause, not the cause. See Rivera.
- The MPC adds a probability component.
- Many crim statutes require the offender to have caused a particular harm or result (ex.
murder : death, assault : fear).
- Sometimes statutes use gradations of harm (ex. aggravated assault : serious bodily injury, assault
: bodily injury).
- Sometimes, however, crim statutes depend instead on risk of harm (v. actual harm), ex. reckless
endangerment, punishing those who act so as to make certain harm a possibility
- Some harms require no proof of harm or specific risk, usually due to regulatory concerns or b/c
the conduct itself is so risky (ex. drunk driving).
- Rationale for causation: notion that it’s unfair to hold someone criminally responsible for harm
that occurred in a way unrelated to his conduct..
- Causation is seldom contested in crim cases, b/c it’s usually obvious.
- Most cts hold D liable despite V’s unusual vulnerability.
- Most cases hold D responsible even when the immediate result is to a large extent the product of
the victim’s own choice about care (see Klinger v. State re: blood transfusion / Jehovah’s
witness). Same if family makes the decision (see State v. Pelham), V commits suicide (see
Stephenson v. State).
- Where the result was intended or foreseeable, but occurred in a different manner than expected
or likely, courts generally still hold D responsible (ex. People v. Kibbe).
- MPC 2.03: Causal Relationship b/t Conduct and Result; Divergence b/t Result Designed or
Contemplated and Actual Result or b/t Probable and Actual Result. Retains the “but for”
approach of the common law, but also adds a different, specific kind of prox cause approach.
o Conduct is the direct cause when there’s both but for cause and any additional causal
requirements.
o When purpose or knowledge of causing a specific result is an element of a crime, this
isn’t established if the actual result isn’t w/in the actor’s purpose / contemplation unless
the actual result is less serious or extensive than, or similarly injurious to the injury
contemplated.
o When recklessness or negligence of causing a particular result is an element, it’s not
established it the actor wasn’t aware of this risk or, re: negligence, shouldn’t have been
aware, the actual result is less serious or extensive than, or similarly injurious to the
injury contemplated.
o When causation of a particular result is a material element of an offense for which
absolute liability is imposed by law, the element isn’t established unless the actual result
is a probable consequence of the actor’s conduct.
- Commonwealth v. McCloskey (PA Sup Ct, 2003): D was charged w/involuntary MS for kids
who died in drunk driving accident after leaving a party her kid hosted in their basement w/her
knowledge. Involuntary MS requires 1) a mental state of either recklessness or gross negligence,
2) a causal link b/t D’s conduct and V’s death. Here, D’s recklessness was sufficient. Rule: V’s
contributory negligence isn’t a defense to a criminal charge; where D’s furnishing of alcohol
to minors started the chain of causation leading to their death, D is liable for involuntary MS.
o But for causation + prox cause not interrupted by intervening cause = crim liability.
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- Commonwealth v. Root: held that a surviving drag racer was not prox cause of his deceased
opponent’s death b/c the deceased was supervening cause of his own death. More direct
causation is necessary for criminal (v. tort) liability.
o PA statute later reversed this outcome, providing that one is legally responsible for the
conduct of his accomplice.
o Most modern decisions disagree w/Root, holding the surviving racer responsible for the
other’s death (see People v. Tims).



Mens Rea:
- General mens rea (aka general intent): requires proof that D intended to perform the physical
act proscribed by the statute; D needn’t have intended the consequences of that act. Not used in
many modern jurisdictions and criticized for being meaningless.
- Specific mens rea: either the mens rea required by the crim statute or, more narrowly, to a
statutory mens rea requiring specific intent (ex. intent to kill).
- Transferred intent: just like in tort law. Doctrine that one is guilty of intentionally killing another,
even if he meant to hit someone else or had no idea the victim was even there. Applies also to
crimes like arson. The rule is ordinarily applied by judicial decision, but some states incorporate
it in specific statutes. Applies whether D intended to kill a certain person or an unspecified
individual or group. Some decisions, however, have refused to apply it to attempted murder. May
be used by the defense in the case of self-defense.
- Recklessness: requires both a subjective awareness of risk and an objective notion that the risk
was substantial and unjustified.
- Crim negligence: almost entirely objective, convicting if D should have known of a risk (but did
not necessarily). Both require an objectively gross deviation from the standard of care of a
reasonable person. These categories may seem clear cut, but can blur into each other in real life.
- Ostrich instruction: speaks to knowledge. See Jewell.
- Strict liability crimes: don’t require proof of any particular mens rea b/c the actus reus is
blameworthy enough. Usually for regulatory (not so serious) or public welfare offenses (can be
serious, ex. DUI, statutory rape).
- Cts might read mens rea into a statute, especially if it’s based on common law. Also, where:
o There’s statutory role of construction (see MPC 2.202(3)).
o It would otherwise violate DP, though this is rare (see Lambert).
o D may be morally innocent.
ƒ These aren’t hard and fast rules (ex. for statutory rape, knowledge isn’t needed).
- In cases of criminal negligence and recklessness, the factfinder sets the standard as well as
decides whether that standard was violated.
- Recklessness, crim negligence, and civil negligence all apply to ppl who’re careless.
- Theoretically underpinned by the idea that crim law was to implement concepts of moral
blameworthiness.
- Has evolved over time, becoming more precise, defined mental elements for certain crimes.
- Has significant policy implications re: statutes’ reach.
- Sometimes statutes’ aren’t clear re: the mens rea required. Sometimes the prove mental elements
w/o defining what they mean, which physical elements they target.
- B/c crim laws were adopted piecemeal, over time, there are many varieties of mens rea elements.
- Sometimes a statute describes a single mens rea element, but others may contain more than one.
- The MPC adopts purposefulness as its highest mental element, though many states opt
instead for intent. The MPC refers to the result or harm as the actor’s conscious object.
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- Sometimes intent or purpose can be difficult to prove, however, if D was aware of the
consequences, but just didn’t care. Thus, many states do not limit murder to intentional killings,
allowing knowledge to suffice. This may be a further problem, however, because “knowingly”
can be difficult to define, as well.
- In recognizing the mental states of recklessness and crim negligence, the MPC endorses the idea
that crim law shouldn’t cover conduct that involves ordinary carelessness v. serious misconduct.
- Many courts will allow an inference of intent or purposefulness from the probable consequences
of the conduct to suffice.
- United States v. Kimes (USCOA 6th Cir): ruled that where a law prohibiting assault on an officer
doesn’t specify general or specific intent, general intent will suffice for one to be charged with
assaulting a fed officer under the statute. Note: this issue has caused a confused split in the cts.
- United States v. Lynch (COA 9th Cir): D found and took a skull from what turned out to be the
remains of an Alaskan native village while deer hunting, admitted he knew it was old. Held that
D was not guilty of violating the Archeological Resources Protection Act b/c he didn’t know this
was an archaeological resource. Rule: the government must prove that D knows or has reason to
know the facts that make his conduct illegal in order to be convicted.
- People v. Hall (CO Sup Ct, 2000): D, a former ski racer, was slightly over the drinking limit, and
skiing out of control for thrills, hit and killed V (fractured V’s skull @ thickest part). Held that
given the circumstances, D consciously disregarded a substantial and unjustifiable risk that death
could result. Rule: for felony reckless MS, 4 elements must exist. D must have: consciously
disregarded; a substantial and; unjustifiable risk that he would; cause another’s death.
Any risk of death will meet the requirement that the actor, by his conduct, risks death to another.
- Jewell v. United States (9th Cir, 1975): approved the so-called ostrich instruction that
knowledge could be satisfied where D was aware of a high probability and her ignorance
was solely and entirely a result of her conscious effort to disregard the nature of what she
was doing, with a conscious purpose to avoid the truth. Dissent: proper instruction would
require awareness of high probability, and…
- United States v. Sanchez-Robles (9th Cir, 1991): D drove her daughters to MX for tacos using
friend’s van, which contained drugs and smelled like pot, but D denied any knowledge it was
there. Held that a Jewell instruction was not appropriate here. Rule: proof of deliberate
ignorance is required for one to be convicted of a crime that requires “knowledge.” W/o
suspicion of a high probability of criminal activity, the deliberate ignorance theory fails;
there’s no middle ground of conscious avoidance.
- Morisette v. United States (1952?): involved a prosecution for the knowing conversion of gov’t
property. Describes the history of strict liability, first noting the tradition of including culpable
mental states in criminal offenses. Held that Congress didn’t intend to omit a requirement of
criminal intent despite the absence of that language in the statute itself.
- Nix v. Whiteside: ruled that D’s 6th right to counsel isn’t violated when his atty threatens to
inform the ct if D perjures himself, and D then testifies truthfully.
THE BURDEN OF PROOF BEYOND A REASONABLE DOUBT:
- Defining BARD:
o Lowers gov’ts burden, thereby increasing risk of wrongful conviction.
o Even if the ct doesn’t define reasonable doubt for the jury, opposing counsel almost
always will. Emphasizing the burden of proof is one of D’s most important strategies.
ƒ The civil burden distinction: for civil cases, greater weight of evidence is enough,
ƒ The “touchdown” analogy: for civil cases, P just has to carry ball across 50 yd
but crim cases require proof BARD.
line, but w/crim, P must cross goal line and score a TD.
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ƒ Ps often tell juries they welcome the burden and intent to meet it. They may also
tell jurors that the burden applies only to the elements of the offense and that it’s
proof beyond a reasonable doubt, not ALL doubt, that’s required.
o Attys on both sides, and sometimes judges try to define the meaning of “reasonable
doubt” (often in jury instructions), though many cts have held that it’s better not to
define it, and there are cases holding that trial cts have committed reversible error by
giving a particular jury instruction. Generally, using #s, %s, and analogies is bad.
- Several cts have required or approved of definitions of reasonable doubt as “doubt that would
cause a reasonable person to hesitate” (see State v. Kuhn, State v. Webster).
- Unless D makes voluntary statements, P must provide BARD w/o using knowledge of or any
inadmissible statements made by D b/c he’s protected by 5th. This generally means that proof
BARD must be supplied solely by circumstantial evidence for key crime elements (ex. mens
rea, actus reus if there’s no eye-witness).
- An acquittal based on reasonable doubt isn’t the same as finding D factually innocent. It
can be based on a finding that the evidence is ambiguous, proving neither guilt or innocence.
- There are a few contexts in which Ds must prove and obtain findings of actual innocence. Ex.
some kinds of recovery for malicious prosecution, habeas corpus or clemency.
- The burden of proof affects the definition of crimes (their elements), can lead to odd results.
- The BARD dilemma: it means frequent non-prosecution of factually guilty ppl, but we don’t
want to punish those who might be innocent.
- In some states, the BARD requirement derives from common law, however many states and the
MPC explicitly require proof BARD.
- In Re Winship (1970): 12yo was alleged to have stolen $112 from a pocketbook, was tried using
a juvenile delinquency statute that only required a preponderance of the evidence. Rule: it’s a
Constitutional requirement that each element of a crime be proved beyond a reasonable
doubt in every state in every case. DP protects the accused against conviction except upon
proof BARD of every fact necessary to constitute the crime with which he’s charged, and this
applies equally to juvenile proceedings involving violation of crim law.
o Harlan’s concurrence: crim law reflects our society’s fundamental value determination
that it’s much worse to convict an innocent than let a guilty man go free.
- Mullaney v. Wilbur (1975): D alleged homosexual panic after killing V. ME law provided that
malice aforethought was an essential and indispensable element of murder, but could be rebutted
by proof of heat of passion from D by a preponderance of the evidence (thus malice aforethought
and heat of passion were inconsistent). Rule: you can’t shift the burden to the D to disprove
one of the elements. The state must prove every element of an offense BARD.
- Patterson v. New York (1977): D saw his estranged wife in a state of semi-undress w/another
man, who he promptly shot and killed, was charged w/2nd M, which included the elements of
intent to cause another’s death and actually causing such death. Malice aforethought wasn’t an
element, but D could raise the affirmative defense that he’d acted under the influence of extreme
emotional disturbance for which there was a reasonable explanation. Proof of this affirmative
defense would reduce it to MS. Rule: if an element of a crime is re-characterized as a defense,
the burden of proof can be shifted to D.
- Martin v. Ohio (1987): held that a State could define self-defense as an affirmative defense and
require D to bear the burden of proving it by a preponderance of the evidence.
- Together, Patterson suggests that a State may be able to change an element into a defense or
affirmative defense and Martin confirms that States have wide latitude in doing so.
- Leland v. Oregon (1952): Ds may be required to prove insanity.
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o Powell’s Dissent: this should’ve been governed by Mullaney.
- Victor v. Nebraska (1994): summarized the constitutional requirement re defining reasonable
doubt, upholding a charge that described it as “not a mere possible doubt,” but where after
considering all evidence, the jurors can’t say they “feel an abiding conviction, to a moral
certainty, of the truth of a charge.” Also, rejected an objection to contrasting reasonable doubt w/
a mere possible doubt.
- Cage v. Louisiana (1990): held that the court could not define reasonable doubt as giving rise “to
a grave uncertainty… an actual substantial doubt.” Note, however, that the Ct has never held this
language prohibited by use of counsel.
- State v. Walker (KS Sup Ct, 2003): in gang-violence case, the judge clarified reasonable doubt as
“such doubt as a juror is able to give a reason for.” Rule: a judge cannot instruct the jury that
reasonable doubt “is such doubt as a juror is able to give a reason for.”
- Paulson v. State (TX Crim. App. 2000): trial judge omitted giving a definition, despite then-
controlling decisional law requiring specific definition, instead to overruling that case (Geesa),
holding it was better practice to give no definition at all, thereby affirming Paulson’s conviction.
Also rejected a “hesitate” instruction b/c this would lead a conscientious juror to never convict.
The Risk of Error:
- Costs and benefits of BARD standard:
o Costs: wrongful acquittals; criminals go free and commit more crimes – risk to society.
o Benefits: fewer wrongful convictions; gov’t must thoroughly investigate.
- Problems w/crim adjudications: incompetence, corruption, laziness, racism, lack of resources.
- Reasons for wrongful conviction: eyewitness misidentification; unreliable or limited science;
false confessions; forensic science fraud or misconduct; informants/snitches; poor lawyering.
- Protections against erroneous conviction: BARD, P’s duty to furnish evidence to D that’s
inconsistent w/guilt; D’s right to cross-examine witnesses; that lineups or photo spreads can’t be
impermissibly suggestive; that accused has a right to counsel during a post-indictment lineup; the
jury’s observance of witnesses’ testimony; that witnesses must testify live; judges’ power to
grant a judgment of acquittal if the evidence is insufficient; appellate and habeas processes.
- Alexander Volokh, “n Guilty Men:” how many guilty people should be released to save one
innocent. Maybe our bias against punishment comes from the most famous of all judicial
miscarriages: Christ’s crucifixion. But it’s controversial whether there’s really any relationship
b/t high n values and high crime rates. It it’s better to let n guilty men go free than one innocent
be executed, the real ? is “better for whom?”
- Some argue that there’s a probability that setting n will lead to acquittal of n members of a
favored group due to ppl’s prejudices.
- Some argue that “only better is better” and we should thus strive for a criminal justice system
that reliably convicts the guilty and reliably acquits the innocent.
- Consider what happens when a jury erroneously acquits


Consider what happens when a jury erroneously acquits a violent killer who strikes again. What
is the total societal cost of erroneous acquittal?
- In some contexts, “reasonable” refers to a contextual balancing decision, in which all facts, risks,
and potential costs must be weighed.
- One argument against capital punishment is that the change of executing an innocent person is
unacceptably high. (ex. Anthony Porter, who was released two days prior to his scheduled
execution). Supporters of capital punishment, however, cite the extensive legal process required
before conviction or sentence, plus extensive appeals and habeas corpus proceedings, the sheer
amount of time (usually many yrs) b/t conviction and execution, the de facto higher burden of
proof of guilt that arises w/juror – even those who are “death qualified” to sit in capital cases.
- Many argue that erroneous conviction is worse than erroneous acquittal b/c it wrongfully
imposes the coercive power of the State on a person (image of state run amok, Nazi Germany).
But what about the state’s duty to prevent crime? Many criminals commit multiple crimes over
 22
time, meaning erroneous acquittals may increase crime. These two goals (avoiding erroneous
impositions of the State’s coercive power and the state’s duty to prevent crime) conflict.
- Erroneous conviction oppresses innocent individuals by affirmative conduct on the part of the
State, whereas erroneous acquittal oppresses other innocent ppl by inaction on the State’s part.
- A critical view of state inaction holds that state policy favoring erroneous acquittal results in
uneven protection of different classes of ppl, with favored groups disproportionately free of the
risks of either erroneous acquittal or conviction, and the costs of unredressed crime falling upon
disfavored classes. Ex. rules of evidence in sexual assaults of women have historically leaned to
admitting every inference favoring acquittal and excluding major categories of evidence
supporting guilt (this has now changed); the rules of evidence and trial processes designed to
protect the rights of adults increase the probability of erroneous acquittal for child abusers.
- In a jury-tried case, appellate review of the sufficiency of the evidence recognizes the role of the
jury. The standard of review is that the evidence is to be viewed in the light most favorable to the
underlying verdict, with inferences drawn how the jury could permissibly have drawn them. It’s
not whether the appellate ct itself would’ve ruled that way, but whether a reasonable jury could
have ruled that way. Thus, in order to overturn, an appellate ct must conclude that no reasonable
juror properly following the law could have ruled that way.
- Where the matter and means of the death are unknown, the practice is to state that this was the
case for the jury that returned the indictment, but that usually requires P call the presiding grand
juror as a witness.
- Stogsdill v. State (TX COA 1977): evidence against D included lug wrench, similar hairs, tire
tracks, previous Vs. Held that the circumstances amounted to only a strong suspicion and mere
probability of D’s participation in the gruesome offense charged couldn’t sustain a guilty
conviction. Rule: a conviction on circumstantial evidence can’t be sustained if the
circumstances don’t exclude every other reasonable hypothesis except that of the guilt of
the accused, and proof amount to only a strong suspicion or mere probability is
insufficient.
DNA Evidence:
- DNA evidence sometimes can justify a high degree of confidence in the conclusion that both
samples came from the same person, circumstantially placing D at scene. DNA evidence
definitely resolves a small number of cases (ex. rape), but almost always by circumstantial
inference. It is not completely conclusive by itself, however. Some say that it’s better for
eliminating suspects than convicting them. Nonetheless, it remains powerful.
- There is danger that jurors may expect DNA proof routinely, even where it doesn’t exist (“the
CSI effect”) or won’t help solve the case.
- Presenting it can be expensive and time-consuming. It generally requires 3 expert witnesses:
- In presenting DNA evidence, Ps might employ the following probability methods:
o Collector of the unknown (and known) samples (technically doesn’t need to be expert,
but the jurors might expect him to be).
o Witness re: the biochemistry of DNA analysis to explain the process and result.
o Population statistician to estimate the probability of a match to a random member of the
population.
o The product rule: the probability of two independent events or characteristics coinciding
is the product of their separate probabilities.
o Bayes’ Theorem: involves an equation that can be used to update an initial probability
estimate in response to a new piece of evidence. Complicated but can be very powerful in
showing the cumulative weight of the evidence.
- There is a risk of lab error w/DNA evidence.
Eyewitness Testimony:
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- Eyewitness testimony: is necessary, b/c prosecution of many crimes depends on it, but it is also
risky b/c it’s vulnerable to error in ways that the crim justice system can’t effectively minimize;
eyewitness error is the largest single factor in wrongful convictions. Despite that, there’s
generally a systemic bias against circumstantial evidence and in favor of eyewitness testimony.
- It is possible that the police method of finding suspects who fit descriptions and placing them in
lineups maximizes the likelihood of causing a misidentifications. As a result, the Sup Ct has
decided several cases designed to reduce “impermissible suggestiveness” in lineups and photo
spreads. But Law enforcement continues to use the same basic method nonetheless.
- Despite the fact that psychologists can identify specific risks or factual variables that influence
(or don’t) accuracy of eyewitness IDs, cts have been reluctant to allow routine evidence on the
subject. They’ve typically limited it to cases in which specific circumstances give rise to
identifiable concerns within psychological competence for fear that such evidence might A) be
misleading or D) be difficult to limit to eyewitnesses, thereby requiring a psychologist to testify
after every witness to reflect on his/her credibility.
- Problems w/eyewitness testimony: memory and perception may be affected by:
o The retention interval (rate at which person’s memory declines over time)
o The assimilation factor (witness’ incorporation of info after event)
o The confidence-accuracy relationship
o Stress
o Violence of situation
o Selectivity of perception
o Expectancy
o Effect of repeated viewings
o Cross-racial IDs.
- On the other hand, these are social theories, not an absolute science, and the tests are generally
run in simulated, unrealistic environments, that may not translate to the real world of crime.
Also, expert testimony on eyewitness IDs can be unduly prejudicial when it’s framed as to
discredit the witness.
- Possibility that Ps will get their own experts to testify to the accuracy of eyewitness ID, which
would lead to battle of experts. Some argue for a middle ground where eyewitnesses are used
when they are most reliable, most needed, and ID is strongly established.
- United States v. Smithers (US COA 6th Cir. 2000): held that the dist ct abused its discretion in
excluding Dr. Fulero’s testimony about the accuracy of eyewitness testimony (in a bank robbery
case) w/o first conducting a hearing to determine the issues. Rule: in determining whether expert
testimony re: eyewitness testimony is admissible, the ct must determine whether it would be
helpful or confusing to the jury, whether such testimony touched on the “ultimate issue” in the
case and therefore usurped the jury’s role, whether the jury could more properly evaluate the
reliability of eyewitness testimony through cross.
o Dissent: the dist ct examined both sides’ briefs on the issue. The gov’t explained why the
testimony would be unhelpful and prejudicial in this case and why cross and jury
instructions were the better alternative here, and D didn’t appropriately counter this
charge. Further, it looked closely at the issue of relevance. This case presents very few of
the narrow circumstances identified by other cts in which such experts may be used (no
issue of cross-racial ID, time-lapse, etc…).

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THE ELEMENTS OF CRIMES – MENS REA AND ACTUS REUS

THE ELEMENTS OF CRIMES – MENS REA AND ACTUS REUS:
- Element: a component that, when combined w/other elements, defines a crime. These are set out
in the charging instrument (ex. indictment) and the ct’s charge to the jury. Language determined
by policy decisions that’s used to fine-tune statutes’ reach, excluding some actions / actors, while
including others. Sometimes blur into each other, not all are always present:
o A voluntary act (actus reus): the physical part of a crime; what D must do (or omitted to
do when he had a duty to do so). Ex. murder requires D killed, arson requires he set fire
to something. This act must also have been voluntary.
ƒ Prevents punishment of thought crime or a person’s physical condition. Also
ƒ MPC lists acts that are involuntary and therefore not criminal:
prevents police from creating a crime (ex. putting a drunk in public).
• A reflex / convulsion
• A bodily mov’t during unconsciousness or sleep
• Conduct under hypnosis
• A bodily mov’t not a product of D’s effort or determination, either
conscious or habitual.
ƒ Include acts done under coercion or duress (but severe duress may be a defense)
o Circumstances: many crimes occur only in specifically described situations (ex. bribery
of a juror, person must’ve been a juror).
o Harm or Result: many crim laws require a specific harm to have occurred before the
statute applies. Ex. M: a person killed, arson: a structure burned, perjury: a lie told.
o Causation: requires D’s act actually cause that harm.
o Mens rea: the mental requirement (loose since some elements have little to do w/D’s
actual mental functioning). Generally broken down into:
ƒ Intentionally
ƒ Knowingly
ƒ Recklessly
ƒ With Criminal Negligence
- Direct evidence: proves a specific element w/o needing any significant inferences (ex.
eyewitness).
- Circumstantial evidence: inferences must be drawn. Ex. seeing someone pick something up and
throw it at a window and then hearing the sound of a window breaking.
- Crimes must be stated w/specificity. Now, virtually all are contained in statutes or admin
regulations. Each essentially applies to a small part of human activity and is constructed to
minimize intrusion into activities that aren’t disapproved. Statutes accomplish specificity by
listing elements of the offense (b/t 3-12).
- Each element narrows a statute’s reach. The more elements the gov’t must prove, most likely
there will be fewer ppl who can be convicted of the offense.
- The Prosecution has the burden of proving the existence of each element of a crime BARD.
This is a heavy burden and distinguishes crim law from civil law. The Prosecution must:
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o Statutes requiring the state to prove a negative are difficult to prove.
- Other unusual aspects of crim law:
- How crime elements influence P’s charging decision:
o Target each specific element
o Rigorously est. each according to the highest standard recognized in the law. Involves
breaking down and numbering the elements (ex. intent, act, target, any other qualifiers).
ƒ D’s identity, the date, and jurisdiction are unexpressed elements in every case.
o Prove ALL elements. If any element is omitted, there will be an acquittal.
o Search for the weakest link, hardest element to prove (the defense will be).
o Media presentations and fiction blur many ppl’s understanding of crimes.
o “Knowing” that the elements are present isn’t the same as supplying proof beyond
reasonable doubt of each.
o D’s knowledge can’t be used as proof of any element, due to 5th.
o Some statutes may seem sensible when written but are meaningless b/c an essential
element can’t be proven beyond a reasonable doubt.
o The DA has discretion re: which, if any, crim charges to bring against D.
o Ct’s rarely 2nd guess this decision, unless D can establish it was based on some
impermissible criterion (ex. race, gender, assertion of a const right).
o Comparing the elements to the elements: one of the key factors determining which
charges to pursue is whether there is / isn’t sufficient proof to meet the BARD standard
for each element.
o The prosecutor is both an advocate and minister of justice, has a duty to refrain from
prosecuting charges he knows aren’t supported by probable cause, meaning he has actual
knowledge of the fact in ?.
- See earmarked page in written notebook for crime/criminal/V stats.
- Commonwealth v. Milo M. (Mass, 2001): upheld the determination of delinquency for a minor
who threatened his teacher by drawing and presenting to her a picture of himself shooting her,
b/c the statute required only an expression combined with ability and justified apprehension (no
actual harm). Mens rea also was present.
- State v. Sowry (OH COA, 2004): D was arrested for disorderly conduct, resisting arrest. Initial
pat down revealed nothing and D said he didn’t have drugs on him after being brought to jail, but
another search revealed pot in his pocket. Rule: the conduct a prohibited act involves must be
voluntary for criminal liability to attach. Where D’s brought to jail under arrest w/drugs on
him, he can’t be criminally liable for knowingly conveying drugs into jail (even if he lies about
it).
- People v. Decina (1956): D who knows he’s prone to seizures that render him unconscious but
keeps driving anyways can’t escape liability for killing ppl when he blacks out b/c the voluntary
act is driving w/such knowledge (the unconsciousness and involuntariness of his later homicidal
result is irrelevant).
Omission as Actus Reus:
- Omission as actus reus is only punishable when failure to act breaches a legal duty to
perform that act (ex. parent doesn’t feed baby who then starves to death). Such duty is
generally imposed by statute. Usually also requires physical capability to act. An exception to the
general rule in American law that imposes no affirmative duty to care or rescue.
o For liability, one must have knowledge of the need for action (see People v. Pollack, D’s
mom wasn’t liable to prevent abuse to her kid by her BF b/c she wasn’t aware of it).
o Criminal responsibility may reach the failure to stop actions of 3rd parties (see People v.
Swanson-Birabent, mom was convicted of committing a lewd act when she watched her
boyfriend molest her daughter).
 15
- No independent duty is necessary if liability is based on an act (v. an omission); rather, the
criminal law actually penalizes doing the act.
- Well-est. sources of duty on which a crime of omission (failure of duty to act) can be based:
o A relationship such as that of parent or guardian
o A statute defining the duty
o A contract providing for the duty
o A voluntary assumption of the duty
o Causing the peril that creates the need to act (ex. hit-and-run).
- Omission and duty are important in child abuse prosecutions b/c there are usually few witness to
such abuse, and in many cases they’re unusable (ex. young child, parent/ guardian, other parent).
- State v. Miranda (CT Sup Ct, 1998): 4 mo old V’s wounds, pain, and reduced food intake would
have been noticeable. Held that where one has established a familial relationship w/V’s mom
and kids and assumed the role of dad, considered himself V’s dad, he’s assumed under the
common law the same legal duty to protect V from abuse as if he were V’s guardian.
o Concurrence: there’s still a serious ? whether D had fair warning that his failure to act
could give rise to liability, but he’ll have the opportunity to raise a DP claim on remand.
o Dissent: the rule of law must be upheld even when confronted w/ horrific allegations. By
superimposing on the statutes a common-law duty on the part of a person to act in order
to protect a child from harm when that 3rd person voluntarily assumes responsibility for
her care, welfare, and considers himself to have been a stepfather to her, the majority has
improperly created a new crime, which is the legislature’s job.
- Lambert v. California (1958): struck down a conviction under a municipal ordinance requiring
convicted felons to register w/the L.A. police b/c absent proof that D had actual knowledge of a
duty to register or probability of such knowledge, DP bars convictions for such passive conduct.
o Note: Cases interpreting felon / sex offender registration laws generally hold that they
comply w/Lambert by imposing crim liability only if offender knew or should’ve known
of the legal duty to register (see Dailey).
Possession as Actus Reus:
- Constructive possession: when D exercises, or has the power to exercise, dominion and control
over the item (see Zandi).
- Many crimes punish possession of an item, but many statutes anticipate the potential issue of
omission by specifically providing that the owner commits an actus reus only if he knows about
the contraband and doesn’t get rid of it. Even where a drug possession statute doesn’t itself
require that D know about his possession, some cts have created a common law “unwitting”
defense for ppl who fall into that category.
- In certain situations the Constitution puts limits on legislatures’ capacity to define actus reus,
including re: status crimes (ex. drug addiction).
Status Crimes and Actus Reus:
- Status crimes: crimes of being, rather than doing (ex. homelessness, addiction, prostitution). Ds
aren’t caught in the act.
- There have been very few allegations that a particular offense is a status offense and therefore
unconstitutional, and almost all such allegations have been unsuccessful. Cts usually hold that D
stands convicted for an act rather than a status (United State v. Black re: pedophilia, United
States v. Herandez-Landaverde re: re-entry after deportation).
- Allegations of the unconstitutionality of habitual criminal statutes, which impose enhanced
sentences for repeat offenders, have also generally been rejected b/c the punishment is not for a
status but rather the sentence is merely enhanced for the most recent crime.
- Also unsuccessful have been appeals / defenses re: compulsive gambling (see United States v.
Davis) and alleging that drug addicts can’t be prosecuted for possession (see United States v.
 16
Moore). There have been a few successful addiction defense cases, though (see State ex rel.
Harper v. Zegeer re: drunk in public).
- Many states have now decriminalized public intoxication, but perhaps that has just led to
criminal law enforcement under another name.
- Robinson v. California (US Sup Ct, 1962): D exhibited physical characteristics of drug use,
admitted occasional drug use. Struck down CA law making it a crim offense for one to be
addicted to the use of narcotics. Rule: a law that imprisons persons for having an illness,
including drug addiction, is cruel and unusual punishment in violation of 8th. Criminal
penalties may be inflicted only if the accused has committed some act society has an interest in
preventing.
o Dicta: the state may properly punish the use and sale of drugs.
o Clark’s dissent: this law must be looked at in perspective. CA has a comprehensive,
enlightened program for the control of narcotism based on the overriding policy of
prevention and cure. Properly construed, the statute provides treatment, not punishment.
But even if it’s penal, brief incarceration isn’t unreasonable when applied to one who’s
voluntarily put himself in a condition posing a serious threat to the state.
- Powell v. Texas (US Sup Ct, 1968): shrink testified that D was a chronic alcoholic who, when
drunk, was unable to control his behavior and had an uncontrollable compulsion to drink, that
when D was sober he knew the difference b/t right and wrong and that his act in taking the first
drink when he was sober was voluntary and willful. Denied chronic alcoholism as a defense to
drunk in public charges. Held that such laws don’t constitute cruel and unusual punishment
b/c they require the actus reus of being drunk, in public, on a specific occasion.
o Perhaps this ruling was motivated by economic concerns about the alternative, whereby
o It may have also depended on the Justices’ view of alcoholics and alcoholism.
o Fortas’ dissent: while this is more than just a status crime, it has the same defect as
instead of arresting drunks the state would have to quarantine / treat them.
Robinson, b/c in both cases, the particular D was accused of being in a condition he had
no capacity to change or avoid.

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GENERAL DEFENSES TO CRIMES

GENERAL DEFENSES TO CRIMES:
- Defenses: must be raised by D. Once raised by minimally sufficient evidence, they must be
disproved by P BARD. This burden is slight, requires no actual proof. If there’s evidence that
any reasonable juror could believe, even if the judge doesn’t believe it, most States judges
must instruct jurors on the defense and tell them that the burden is on P to disprove it BARD.
If there’s no evidence of a defense, however, the jury won’t be instructed about it.
- True defense: adds another element to the case, one that D must raise and support (D bears
burden of production).
o Justification defense: admits commission of offense’s elements, but argues that doing so
wasn’t wrong in this case. Are based on societal decisions about what we find
acceptable. Ex. self-defense, defense of property, defense of habitation, defense of others,
law enforcement defenses, necessity. Better.
o Excuse defenses: admits commission of offense’s elements, but argues that D wasn’t
responsible for his actions for some reason. The conduct isn’t justified under the law,
but is excused b/c Ds decision-making ability was impaired. Ex. insanity, some cases of
intoxication, duress, certain types of mistakes of fact or law. Not-as-good.
- Affirmative defenses: Depend on facts independent of the crime elements, don’t disprove
the elements. D bears burden of production and persuasion, must convince the jury by a
preponderance that each necessary fact is present. Under MPC, only arises where there’s
evidence supporting it. Ex. emotional disturbance (see Patterson).
- Offense modifications: apply to specific crimes rather than all crimes. Include special defenses
available in many jurisdictions for preparatory crimes like attempt or conspiracy. Ex. renouncing
the attempt or conspiracy is a defense to those crimes, but doesn’t furnish a defense to crimes
across the board.
- Partial defenses: may reduce a charge (ex. from M to MS). Ex. provocation, diminished capacity.
- Extrinsic defenses (aka non-exculpatory public policy defenses): neither justifications nor
excuses, but still may furnish a defense based on public policy. Ex. SOL, executive or diplomatic
immunity.

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Criticisms and Justifications for the Felony Murder Doctrine

Criticisms and Justifications for the Felony Murder Doctrine:
- MPC – why they didn’t include the FM rule:
- “The Felony-Murder Rule: A Doctrine at Constitutional Crossroads” by Roth and Sundby:
o H should only been punished when it’s done w/a state of mind that makes it reprehensible
and unfortunate. Lesser culpability yields lesser liability.
o But the FM rule contradicts this by basing a M conviction not on any proven culpability
re: H but rather on liability for another crime, gratuitously punishing Ds.
o Criminal punishment should be premised on more than just a probability of guilt.
o There’s no basis for thinking that accidental Hs occur w/disproportionate frequency in
connection w/specified felonies.
o We shouldn’t be able to use the severe sanctions for murder unless D acted w/extreme
indifference to the value of human life.
o Despite widespread criticism, the FM rule remains in most jurisdictions.
o It’s common law purpose is vague, maybe it was meant to more severely punish
incomplete / attempted felonies, which were then only misdemeanors, if a killing
occurred, but then this has little relevance today.
o Modern justifications:
ƒ Deterrence:
• To deter negligent and accidental killings during commission of felonies.
But how to deter an accident?
• Deterrent to committing dangerous felonies in the 1st place, but doubt
exists that serious crimes are deterred by varying the weight of the
punishment.
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ƒ Transferred intent / constructive malice: the rule relieves the state from the burden
ƒ Retribution and general culpability: a strict liability view of the rule that sees FM
• Few felons may know about the rule, what punishments go w/what crimes.
• There is the potential to punish a D who has no subjective culpability.
of proving premeditation or malice, criticized as an anachronistic remnant that
operates to fictitiously broad unacceptably the scope of M.
as a distinct form of H. Justifies conviction for M simply on the basis that D
committed a felony and a killing occurred. Notion that the felon has shown an evil
mind justifying severe punishment. Focuses on the resultant harm, not the actor’s
mental state, in deciding appropriate punishment. Effectively eliminates mens rea
for a killing that occurs during a felony.
- “In Defense of the Felony Murder Doctrine” by Crump and Crump:
o FM as a reflection of widely shared societal attitudes. This classification is the result of a
concern for grading offenses so as to reflect societal notions of proportionality. Idea that
an intentionally robbery that causes death is more serious than an identical robbery that
doesn’t. Statistics and jury studies seem to corroborate this.
o Criticisms that focus on mens rea denigrate actus reus.
o The rule serves the purpose of condemnation by distinguishing crimes that cause human
deaths, thus reinforcing reverence for human life.
o It also expresses solidarity w/crime victims.
o Criticisms re: deterrence underestimate its complexity. It’s not true that felons may be
ignorant of the laws or the FM rule (ex. tv). Moreover, the idea that accidental killings
can’t be deterred is inconsistent w/the civil law penalization of negligence.
o It provides the advantage of greater clarity.
o The quality of justice is limited by the scarcity of our resources and the efficiency
w/which we allocate them, and the rule has beneficial allocative consequences b/c it
clearly defines the offense and simplifies the task of the judge and jury, promoting
efficient administration of justice.
o Many crimes are defined more broadly than their harmful consequences alone might
justify (ex. drug possession).
o Criticism that the rule may cause juries to disbelieve false claims of accident leading to
false imprisonment are false; an accident claim need only rise to the level of reasonable
doubt.
o We also shouldn’t incentivize perjury by allowing an accident different status than an
intentional killing during the commission of a felony.
o The limiting doctrines are consistent w/the purpose of the rule b/c each in some way
prevents application where it’s not supported by policy, but recognition of the need for
limitation isn’t grounds for the rule’s abolition.
Homicides Analogous to Felony Murder: Unlawful-Act Manslaughter, Vehicular Homicide, and
“Resulting in Death”
- The Unlawful Act / Misdemeanor Manslaughter Doctrine: works for misdemeanors the same
way the FM rule works for felonies, making a killing accomplished in the commission of an
unlawful act, not amounting to a felony, constitute involuntary MS. It is limited by:
o Proximate cause: some jurisdictions require a strong causal connection b/t the unlawful
act and resultant H.
o Inherently bad / Malum in Se misdemeanors, dangerous offenses.
- Vehicular homicide: is sometimes treated as M, sometimes as MS.
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- Special statutes for intoxicated-driving homicides: ex. vehicular homicide (CA), Intoxication
MS (TX). These carry serious penalties and operate similarly to the FM rule, dispensing w/
separate mens rea requirements.
o Note: opponents of the FM rule are relatively silent re: intoxicated driving H laws.
- Resulting-in-death statutes: some states have special statutes for certain felonies that define
more aggravated crimes (or more serious sentences) if death results. Ex. child abuse resulting in
death, CR violations that result in death.

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Involuntary Manslaughter and Negligent Homicide

Involuntary Manslaughter and Negligent Homicide:
- Involuntary Manslaughter (I MS): killing someone recklessly or negligently. Under PA
pattern, unintentional killings less serious than depraved heart M can be classified as I MS.
- Criminally negligent homicide (CNH): many states define this crime covering offenses that are
criminally negligent rather than reckless, depending on D’s conscious mental state. Depends on
the foreseeability, degree, and probability of risk. Generally requires greater guilt than civil tort
negligence, a gross deviation from ordinary conduct. See Robertson.
- Recklessness: awareness of unacceptable risk to human life.
- Negligence: lack of such awareness in a situation where D should’ve been aware (RP standard).
o There’s no contributory negligence in crim law.
o Juries can refuse to believe D’s claim of ignorance, infer knowledge from circumstances.
- MPC is much simpler, gets rid of malice and premeditation / deliberation b/c as the sole
determinant of severity it created a false dichotomy b/c some thoughtless murders are worse than
some planned ones (might create backwards results).
- MPC’s “extreme mental or emotional disturbance” expands the traditional voluntary MS
conception (no more cooling time, provocation). It also limits mens rea to purposeful, knowing,
reckless, or negligent behavior.
o Purposefully: it’s D’s conscious object to engage in such behavior, affect such result. D
is either aware of or hopes for attendant circumstances.
o Knowingly: D is aware that conduct is of a certain nature or that circumstances exist.
o Recklessly: D consciously disregards a substantial, unjustifiable risk in a way that’s a
gross deviation from the law-abiding person.
o Negligently: D should know of such risk.
- Commonwealth v. Feinberg (PA, 1969): held that D’s sale of a reformulated, more dangerous
form of Sterno to ppl he knew were likely to try to extract the ethanol to drink it, aware that
death was likely, constituted I MS. Rule: to sustain a MS conviction, P must present evidence
proving D acted rashly or recklessly, showing disregard / indifference to human life /
consequence in comparison to a reasonable person.
- Robertson v. Commonwealth (KY Sup Ct 2002): held that where a cop fell through a gap on a
bridge to his death while chasing D running from him, this constituted involuntary 2nd degree
MS. Rule: it’s 2nd MS if D was aware of and consciously disregarded a substantial and
unjustifiable risk that his conduct would result in another’s death, this disregard
constituting a gross deviation from RP standard. It is CNH if D failed to perceive such risk.
o Concurrence: whether fleeing arrest that results in a cop’s death alone supports 2nd MS is
open, but here D was aware of the gap and disregarded it, and had to know V would
follow him and thereby be at substantial, unjustified risk.
- State v. Rivera: 2 brothers kill another man (with no apparent prior deliberation). One shot him 3
times, the other stabbed him 6 times. Rule: When one acts with intent to cause serious bodily
injury, he;s liable for murder, no matter if it was his act that caused the death (MPC approach).
- Martinez v. State: D killed V, but stated he did so because V had tried to accost him and he had
no intent to kill V, so he should only be guilty of manslaughter. D admitted he had tried to hurt
V with the knife. Rule: A D who acts with intent to cause serious bodily injury is liable for
murder, even if D had no intent to cause the death.
- People v. Hall: see section on Mens Rea below. Skier case.
Felony Murder:
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- The felony murder rule: common law imputed malice to killing during a felony (even if it
was an accident). A shortcut to proving M. Requires proof that the felony or D’s conduct
caused the death (some states allow but for causation, others limit by proximate cause). Felony +
causation of death = FM. Most states still have it but due to concerns about overbroad
application, however, the rule has since been limited:
- Causation and FM:
o The inherently dangerous felony approach: some states (like CA) require that the
underlying felony be inherently dangerous in the abstract (this is subjective), looking
only at its dangerousness w/o considering D’s conduct in the individual case.
o The dangerous act approach: requires independent proof that this individual D performed
some act “dangerous to human life” during commission of the felony. Focuses on D’s
conduct in the particular case.
o Merger doctrine: most states exclude lesser degrees of H as predicate felonies (ex. MS),
b/c otherwise every killing would be M. So, MS can’t support FM under this theory.
Some states allow assault to be the predicate felony, others don’t.
o The MPC doesn’t have it. They thought it inappropriate to convict for M on a lesser
mental degree of fault. It does, however, contain a presumption of extreme indifference,
sufficient for M, in the case of some violent felonies, but preserves this ? as a jury issue.
o Cause in fact approach: sets a relatively low proof standard, b/c whenever death results
and wouldn’t have occurred w/o the felony, this is present.
o Proximate causation: as a result of the low proof standard for cause in fact, many states
also require this, which places a more substantial restriction on the FM doctrine, existing
only when there is foreseeability.
o Causation issues become tricky when someone who’s not the V of the underlying felony
is killed accidentally (ex. a co-felon or cop).
ƒ Agency approach: holds D liable only for killings committed by his co-felon,
ƒ Proximate causation approach: might hold D liable for death of a co-felon on
who’s treated as D’s agent, and not for a killing of his co-felon by a cop, who’s
not D’s agent. See Sophopohone.
grounds that it’s a foreseeable result of the cone of violence set in motion by D’s
participation in the underlying felony.
- There is great debate as to whether felony murder can be based on assault. People v. Ireland
(CA) says no, Wyman v. State (GA) says yes.
- Cts have typically been willing to impose FM liability in cases when D’s co-felon uses an
innocent person as a hostage or shield and someone accidentally kills that person.
- State v. Anderson (MN Sup Ct, 2002): D brought a loaded gun to V’s house, telling V and a 3rd
party he’d stolen it. They checked it out, remarked that it was loaded, gave it back to D. When V
knelt to put CDs into his stereo, D pointed the gun at V’s head and it discharged. Held that felon
in possession and possession of a stolen firearm can be legal predicates for felony murder under
certain circumstances. Rule: even when D doesn’t commit M to further any of the underlying
felonies, he can still be guilty of felony murder under the dangerous act approach where he has
acted in an inherently dangerous manner in the commission of his crime. The pointing of a
loaded, unsecured gun at another in close range qualifies.
o Dissent: the FM doctrine is an anomaly in H law, expresses a highly artificial concept
shouldn’t be extended beyond it’s required application. Here, the predicate offenses
weren’t inherently dangerous and the act causing V’s death wasn’t committed in
furtherance of the underlying felony. Traditionally, the doctrine had a critical limitation
of requiring proof of a causal relationship b/t the predicate offense and V’s death. This
decision gives the state unlimited discretion to apply the rule.
 11
- People v. Hansen (1994): rejected an argument that a drive-by wasn’t felony murder b/c it
necessitates a high probability of death and occupants could’ve been absent, b/c there’s always a
significant likelihood they’ll be present. Held that the crime of discharging a firearm at an
inhabited dwelling doesn’t merge w/a resulting H, will support a conviction for 2nd FM.
- Commonwealth v. Kilburn (Mass Sup Jud ct, 2003): D wasn’t there for V’s shooting, but was
later linked to a conspiracy to punish/discipline V. D confessed to this, but said that the gunman
had just gone there to ‘do’ V, who never should’ve died. Held that here the merger doctrine
didn’t prevent D’s M conviction since the armed-assault predicate felony also caused V’s death.
Rule: under the FM doctrine, where there’s a felony separate from the acts of violence that
constitute a necessary part of the H itself, one can be convicted of FM, even if there was another
predicate felony that is merged. Also, the law doesn’t require D to be present or intend V’s death
to be guilty of FM.
- State v. Sophophone (KS Sup Ct, 2001): D and 3 others broke into a home, which the resident
reported. Cops responded, D began to run away, was arrested. One of the others also began to
run, a cop followed him, and when the he raised his weapon and fired, the cop did the same and
killed him. Held that where a killing resulted from the lawful acts of a cop in attempting to
apprehend a co-felon, D is not criminally responsible for the death of such co-felon. The
FM doctrine doesn’t apply when the fatal act is performed by a non-felon. (Never actually
says it adopts the agency approach).
o Dissent: the statute doesn’t contain the limitations supposed by the majority, and nothing
requires the ct to adopt the agency approach. D set in motion the acts that would’ve killed
the cop had he not been so alert, and so should apply also to the co-felon. This is exactly
what the legislature had in mind when it adopted the FM rule.
- Santana v. Kuhlman upheld the use of FM re: when one cop shot another in the course of an
undercover drug arrest during which Santana produced a chaotic gun battle.

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Voluntary Manslaughter legal definition

Voluntary Manslaughter:
- Voluntary manslaughter (V MS): an intentional killing in the heat of passion with adequate
cause.
o Provocation (aka heat of passion): can negate malice, or may be considered in addition
to malice. There can be no cooling period; restraint over time can negate provocation.
Many think V must responsible for it; it’s not just that you’re mad – it matters at whom.
o Adequate cause: includes serious assault/battery, sudden discovery of adultery, resistance
of illegal arrest, injury/serious abuse of a relative. Doesn’t include minor abuse, receiving
info about but not seeing adultery, adultery of fiancé/unmarried sex partner, words alone.
o The MPC instead uses extreme emotional disturbance with reasonable explanation/
excuse, a much broader, more subjective standard re: both the disturbance and the V.
o There used to be a standard that looked at the circumstances as D believed them to be, but
that has largely been discredited as being too broad.
- Even if malice aforethought would otherwise be present b/c killing is intentional, PA
pattern reduces the grade to V MS for certain killings in the heat of passion. The underlying
theory varies: some say it’s b/c malice aforethought is absent in such cases due to passion, others
treat passion as a kind of defense that reduces the grade.
- But not every passion killing qualifies as V MS, some are still M. Factors considered include:
o The adequacy/reasonableness of provocation.
o The severity of mental disturbance such that it’d interfere w/“cool reflection” (sometimes
RP standard)
o Timing: was it on the spot, or done later? Latter is murder.
o V: some cts insist it must be someone involved in creating the passion for it to be V MS.
o The judge must submit instructions on voluntary manslaughter if the possibility is raised
by the evidence (ex. sleeping w/D’s wife immediately prior to killing).
- Generally, trial judge must submit jury instruction if any reasonable juror could conclude that the
facts support the theory presented by the party requesting it.
- In some jurisdictions, the passion element of MS negates malice, in others it’s a separate element
coexisting w/malice, but lowering the crime’s severity.
- Voluntary MS is only appropriate when one kills upon reasonable provocation or adequate cause
(see Avery), based on different standards employed in different jurisdictions:
o Categorical approach: certain categories, and those only, are sufficient to constitute legal
provocation (ex. adultery).
o Reasonable person (RP): the more RP’s like D, the more likely it’ll be considered V MS.
o Battered Spouse Syndrome (BSS).
 8
- The MPC instead has only one category of MS, which can be committed either by a reckless
killing or under the influence of extreme mental/emotional disturbance for which there’s
reasonable explanation or excuse as evaluated by the viewpoint of one in D’s situation under the
circumstances as he believed them (subjective).
- In many jurisdictions, the prosecution must not only prove the killing BARD, but also must
negate voluntary MS BARD.
- State v. Avery (Missouri Sup Ct, 2003): D’s lover had harassed her and her BF. She knew he
wasn’t sober, and when he returned to her BF’s home after she’d asked him to leave, looking
mad. He threatened and quickly walked toward her, so D shot him. Held that the trial ct erred in
failing to include instructions on V MS because the jury could’ve reasonably believed that’s
what this was. Rule: for MS, while sudden passion isn’t established when D had ample time to
cool down, evidence of a past relationship/conduct may be relevant to show why otherwise
seemingly minor conduct may have caused D to kill, showing a rekindling of provocation after
what might be thought of as a cooling period. When in doubt, cts should instruct on the lesser-
included offense, leaving it to the jury to decide of which offense (if any) D is guilty.
- People v. Page (IL Sup Ct, 2000): D alleged V made a same-sex sexual advance toward him,
which caused him to kill V. Held that mere evidence of an alleged homosexual advance
precipitating a killing does not constitute provocation as to compel voluntary MS instructions.
Depraved-Heart Murder - Malice Aforethought in Unintentional Killings:
- Depraved-Heart Murder (2nd M): murder that’s unintentional but malice is implied b/c D
killed V acting so recklessly as to show w/a depraved heart / extreme indifference to life. If
D’s recklessness is less substantial, the lesser charge of involuntary MS may apply.
- How to distinguish b/t DHM and I MS (both involve extreme recklessness):
- Common law recognized many kinds of implied malice, arising w/o intent to kill:
o Degree of risk
o Justification for risk
o D’s awareness of risk (v. negligence)
o Depraved heart malice.
o Assault w/intent to cause serious bodily injury, even if there was no intent to kill (idea
that intending serious injury is guilt enough if death actually results, anything else would
depreciate actual murders w/o significant gain in crime grading to the benefit of those
whose intent was worth of severe condemnation anyways). See State v. Jensen. Some US
jurisdictions don’t recognize this kind of malice, however, so it’s not enough for murder.
o If D resisted unlawful arrest so as to kill the arresting officer, even unintentionally. See
Donehy v. Commonwealth. But all US cases also contain facts that supply malice in
another way and in cases where this has made the difference, US cts appear to have
rejected this kind of malice.
o Killings in the commission of certain felonies (aka felony murder). This is alive and well
in the US today, and used often.
- Commonwealth v. Malone (PA, 1946): 13yo D put gun against V’s head to play “Russian
Poker,” pulled the trigger 3 times, the last shot fired, killed V. D said he put the bullet in the slot
to the right of the firing chamber, didn’t think it’d go off, didn’t mean to hurt V. Held that as
long as there was an intent to act in a manner that displays gross recklessness for which one
might reasonably anticipate death to another is likely, intent to kill is not necessary for one to be
found guilty of 2nd M. However, an accident that is a non-depraved result isn’t M.
- United States v. Fleming (US COA 4th Cir, 1984): drunk D drove incredibly recklessly (way
over the limit, veering into the oncoming lane to skirt traffic), lost control, hit and killed V. Held
that a non-purposeful vehicular homicide can amount to murder if P can prove D intended to
operate his car how he did w/o regard for others’ safety or lives. No intent to kill is required, if
 9
there’s depraved disregard for human life. Malice can be established by evidence of
conduct that’s reckless, wanton, a gross deviation from RP standard.
- Thomas v. State (NV, 2004): rejected challenge to a murder conviction based on depraved heart
instruction, alleging that term is archaic, not rational, pejorative.

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legal definition of murder

Murder: traditionally was defined as an unlawful killing w/malice aforethought, is now subject
to whatever statute governs it in a given jurisdiction. No malice, no M (instead, that’s MS).
- Malice aforethought: prerequisite for murder. Requires neither malice/hatred, nor
aforethought (some accidental killings count if they evidence D’s “depraved heart” aka are
particularly reckless, outrageous, or inexcusable). Can be supplied by intent.
- Premeditated: doesn’t really mean premeditated in the legal context. No time is too short.
- Some consider M, involuntary MS, and negligent H as shading gradually into each other on a
continuum from serious killings to relatively less blameworthy ones (a sliding scale of
seriousness). It goes (from most to least serious/punishable): 1st M Æ depraved heart 2nd M
Æ voluntary MS Æ involuntary MS Æ criminally negligent H Æ civilly negligent conduct
(no crime, but fine).
- Levels of liability for killing another:
o No liability
o Civil liability
o Manslaughter
ƒ Voluntary: intent to kill, but due to sudden provocation or heat of passion.
ƒ Involuntary: reckless accident
o Murder: intent to kill (only capital M 1st can get the death penalty).


Terms of art may vary in meaning with both the State and the ct and distinctions can produce
major differences in sentences.
- To jurors, the ancient terminology (ex. malice aforethought) can be confusing, esp. since the
judge will tell them that words have meanings other than what one might think. The MPC has
abandoned these ancient formulas, and uses more direct language.
- Different jurisdictions have different models for their homicide laws, each relying on terms of
art to define the various degrees of the crime:
o The Pennsylvania Pattern (used elsewhere too, WA uses simplified model): based on
the idea that more planning evidences a worse crime, impulsive crimes are less bad
ƒ 1st degree murder (malice aforethought & deliberate, willful, premeditated killing;
OR murder in attempts to commit another crime – like FM)
• Makes 1st degree murder depend on mens rea, reserving the most severe
category of crime for Ds w/most culpable mental states.
o The MPC: clearer language, simplified
o The TX Pattern (influenced by the MPC):
ƒ 2nd degree murder (malice aforethought only)
ƒ Voluntary manslaughter (passion killing)
ƒ Involuntary manslaughter (misdemeanor-manslaughter or gross negligence)
ƒ Vehicular manslaughter (grossly negligent unlawful driving, intoxication, etc…)
ƒ Murder (causing death intentional or knowingly, or w/recklessness and extreme
indifference). There are no degrees of murder under the MPC. Rather, differences
in severity of crime are taken into account in sentencing.
ƒ Manslaughter (includes both voluntary and involuntary)
ƒ Negligent homicide
ƒ Murder (only one degree, but three ways to commit it: intentional or knowing
killings, killing w/intent to cause serious bodily injury, felony murder)
ƒ Murder w/sentence-range reduction (passion killing, not a separate offense like
voluntary manslaughter)
ƒ Involuntary manslaughter (reckless killing)
ƒ Criminally negligent homicide (gross negligence)
- Why we have different degrees:
o Historically, originally unlawful killings were capital offenses, so jurisdictions looked for
o Now, these levels serve to grade the serious homicidal offenses.
a way to distinguish b/t the really bad ones and the not-so-bad ones.

6

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Two Main Crime Elements: Mens Rea and Actus Reus

Two Main Crime Elements: Mens Rea and Actus Reus
- Elements of crime: requirements that the prosecution must satisfy to prove D is guilty.
o Mens rea: the wrongful mind. Most crim statutes require mental fault on part of Ds,
criminal state of mind, malice aforethought, intent, etc...
o Actus reus: the physical elements of the wrongful act, including all physical elements
of the crime, not just D’s act (ex. cocaine possession: it’s not just possession of a
powder, but what that powder is). May include all required circumstances, results,
and causation. May be a positive act or failure to act where there’s a duty to do so.
- United States v. Zandi (US COA 4th Cir, 1985): two bros got a receipt and carrier’s certificate for
a “box of presents,” for which they’d sent $3K to a bro abroad, which was searched and found to
be opium before they got it. Held that there was sufficient evidence of constructive possession
due to their actual possession of the shipping documents. Rule: Possession may be either actual
or constructive, and the latter exists when D exercises or has the power to exercise dominion and
control over the item. This can be proven by circumstantial evidence as long as any rational trier
of fact could have found the existence of the elements (including knowledge) BARD.
- See “Possession” for constructive possession defined.
Proof Beyond a Reasonable Doubt (BARD):
- Knowledge: mere reasonable or substantial certainty (influenced by burden of proof in crim
cases).
- The burden of proof in civil cases is usually “by a preponderance of the evidence” (51%, more
likely than not) v. crim cases where it’s “proof beyond a reasonable doubt,” b/c those crimes

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The Statutory Basis of Crim Law

The Statutory Basis of Crim Law:
- Rule of Lenity: construing penal statutes most favorably to D as the language and circumstances
of application may reasonably allow. Contrast with…
- Fair Import: reading a statute in accordance with its plain or common meaning.
- Formalism: extracts statutes’ elements, compares the facts to these in a rigorous, piece-by-piece
manner. See Keller.
- Instrumentalism (aka functionalism): seeks to discern statutes’ purpose, intent, or function,
reasoning inductively or by analogy, so the outcome depends on whether the facts are such that
the statute was meant to apply to them.
- Strict construction: approach followed by many juris that a crim statute is to be read narrowly,
so as to avoid criminalizing any conduct by too-broad interpretation. Relates to the rule of lenity.
- Crim law is statutory: if a statute can’t be read to prohibit a certain action, it’s not usually a
crime, no matter how wrong it seems. The legislature defines what’s a crime and what’s not.
o Statutes usually confine cts’ reasoning more narrowly v. more flexible common law.
o However, historically our crim law originated in the UK under the common law and
statutes today continue to use common law terminology.
o MPC 1.05: no conduct constitutes an offense unless it’s a crime or violation under this
code or another state statute.
o Statutes must be read word for word, and since the law depends on relatively few words,
there can be great disagreement re: what they mean.
 1
- Keller v. Superior Court (CA Sup Ct, 1970): jealous D purposefully beat up ex-wife, killed her
in-utero, but very viable, fetus, but was acquitted of murder b/c the statute defined it with
reference to a “human being.” Held that an infant is not a human being and therefore cannot be
the subject of murder as it is defined by statute. Rule: where the language and historical intent
of a statute are clear, that statute can’t be enlarged b/c to do so would deny Ds DP. Lays
down the rule of lenity. Dissent looks at historical concept of quickening, definitions of “human”
and “being,” says D knew this was murder and there’s no justice in letting him off easy.

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Public law and Private law

 
Public law and Private law

Distinction is very important for civil lawc ountries, and much less
important in common law countries;

 However, no unifomity exists among civil law countries in distinguishing
public and private law;

 Generally speaking , public law is the law that governs the relationship
between the individuals (physical or legal persons) and the state . Thus, in
public law state is directly involved as a legal actor;

 Public law includes at least :
◦ constitutional law
◦ administrative law, and
◦ criminal law.

By contrast, private law governs the relationship
between private individuals without intervention
of a state or government. In this areas of law state
is not directly or primarily a party;

 Private law includes at least:
◦ civil law, and cemmercial law.

 Or, depending upon legal system and accepted
classification of branches of law, one can say that
private law includes the following branches:
contract law, tort law, family law, property law, etc.
(see next slides).

Distinction is ambiguous, besides, even such 'traditional'
private areas as family law are increasingly regulated by
the state;
 Classification of some areas is disputable:
 e.g. civil procedure-included either in private, or in public
law, depending upon legal system;
 labor law, agricultural law, social security law -sometimes
referred as 'mixed' public and private, sometimes
described as sui generis (Glendon, Gordon, and Osakwe,
p.266).
 Occasionally, public law would mean the law of general
application, as opposed to private law, which concerns
only a small class, or group, or even a single individual.

Public law
 defines the state or governs
the relationship between the
state and its citizens,
 tends to be more general, may
involve multiple parties or
interests,
 more likely to be prospective
(forward looking),
 in some cases goes beyond
awards of monetary damages
(e.g. imprisonment)

Private law
 governs relationship
between citizens,
 often retrospective,
concerns with resolving
secific disputes about past
conduct between identified
parties,
 rarely has public policy
implications.

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National law, International law and European law

National law, International law and
European law
 National law - the law of certain country (law of the
Netherlands, Belgium, Sweden, etc.);

 International law - usually we mean 'Public International
law‘ ,i.e. that law that regulates the relationship
between the states, and international organizations.
As opposed to Public Intemational Law, 'Private
International law (or 'Conflict of Laws') rules allow to
determine which national law has to be applied to
situations crossing over the borders of one particular
state and involving so called 'reign element';

 European law – most of the time we mean 'law of the
European Union' (to be discussed further in the
course).

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Sources of law in common law countries

Sources of law in common law countries

◦ Case law (as a primary source of law);
◦ legislation;
◦ Customs, conventions, royal prerogative, etc.
 In common law countries precedents exist separately as law
to be followed;

 In general, the decisions of a higher court are binding (i.e.
must be followed) upon all rower courts ('doctrine of
binding precedent');

 Decision which interpret legislation become a source of law
(as much as the law they interpret), thus, judges create new
law; the statute alone may be viewed as incomplete until it
has been interpreted.


Precedents have been characterized as being precise and flexible;
 Decision based on particular facts gives some assurance that in
subsequent indentical fact situation a similar conclusion will be
reached;

 Common law lawyers have become ecceptionally skillful at
distinguishing fact situations (in order to acquire different decision);

 The statute World not be able to include all these factual varioations
and possible solutions to them;

 In civil law countries precedents also have value since they may
provide assistance in determining how statutory laww is interpreted
(teaching function), but the courts do not need to follow earlier
decisions.

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Sources of law in civil law countries

Sources of law in civil law countries
 Where one has to look to determine what legal rules
are applicable to govern the relationship;
 (i)primary sources (binding), such as enacted law and
custom for a number of countries, sometimes, also
general principles of law and
 (ii)secondary sources (not binding, may have weight
when primary sources areabsent, unclear or
incomplete), such as case law and the writings of the legal
scholars;
 Enacted law is the main source of law , includes
legal rules adopted by the parliament, as well as
issued by executive and administrative agencies;
 Court decisions are not binding in a subsequent
cases.
Sources of law have different legal force, they
form so-called 'hierarchy' of legal acts:
◦ constitution has greater legal force,
◦ it is followed by legislation (laws produced by the
parliament )
◦ executive decrees (acts of the government ),
administrative regulations, etc.

 In federal states – special rules concerning
correlation between federal and state law;
 Besides, international law rules have special effect
on national law of the country.


Legislation – acts of principal legislative body,
judicial interpretation will follow;
 Custom plays important role in many legal
system (e.g. in England): initial establishment of
custom requires proof that it existed
uninterrupted for a long period of time and
that it existed by common consent (not by
the use of force)
 Conventions (influential source of English law) –
unwritten source of law (together with
custom) .

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