*For additional information regarding the criterion for inclusion or membership for lawyer associations, awards, & certifications click image for link.

Criminal Law - 2021 Outline - Part 2

Download the PDF version of this outline

<< Part 1 | Part 3 >>

Parties Common Law: Rejected in Modern Times
  • Principal in 1st degree: Person who committed the crime
  • Principal in 2nd degree: person who assists and is at scene (lookout/getaway)
  • Accessory before the fact: Not at scene, but can be the mastermind
  • Accessory after the fact: NG of underlying crime; but AATF is a crime itself (still)
Modern Accomplice Liability: Unlike Conspiracy (Doesn’t Req Clear Agreement)
  • Common Law: Rejected in Modern Times
    • Principal in 1st degree: Person who committed the crime
    • Principal in 2nd degree: person who assists and is at scene (lookout/getaway)
    • Accessory before the fact: Not at scene, but can be the mastermind
    • Accessory after the fact: NG of underlying crime; but AATF is a crime itself (still)
  • Focuses on ∆’s state of mind + the assistance offered

Gov proves: (1) commission of offense by the principal (2) ∆ shared principal’s intent for crime to take place; (3) some action to further crime (even if just encouragement)

  • No crime of aiding and abetting: once you are found party to the crime you are responsible for the principal crime
    • However, there is a crime of accessory after the fact: GOV PROVES (1) Knowledge of crime (2) Intent to assist (3) some act of assistance
  • Note: accomplice can be guilty of higher offense if they are the brains (higher state of mind than what is needed for the muscle of the crime)

Federal Statute: 18 USC § 2: “Whoever directly commits any act constituting an offense defined in any law of the US, or aids, abets, counsels, commands, induces, or procures its commission, is a principal”

Can a principal be acquitted and a aider/abettor be found guilty?

  • Courts answer this differently
  • SCOTUS says: 2 different decisions is completely fine: see Standefer
    • In NC: acquittal of principal = acquittal of parties
    • In GA: acquittal of principal can be used as relevant evidence (usually walks)


  • Standefer v. United States: SCOTUS 1980
    • Standard bribery case (usually tried together); bribed IRS agent w/ vacations; charged w/ A&A of taking bribes
    • ∆ moves to get dropped the charges that the IRS agent was acquitted of
    • Issue: Can an aider/abettor still be convicted when the principal was acquitted?
    • Rule: Yes: the jury in present case can still find that that principal = G (even if in his own trial, he wasn't): collateral estoppel doesn’t apply in criminal law: the issue can be relitigated in determining the A&A’s guilt
      • “While symmetry in jury decisions is desirable, it is not necessary”
  • State v. Gladstone - Wash. 1970 : State of Mind Req for Parties
    • State of mind case: undercover asks ∆ where to buy MJ: he gives him name, draws map of how to get there
    • Convicted of A&A in sale of MJ: Issue is whether or not he had req’d mens rea
    • ∆ NG bc state can’t prove he had any desire/intent for sale to take place
    • “Dangerous precedent if mere communication that another might be willing to commit crime = aiding and abetting the commission of the crime”
  • United States v. Garguilo - 2nd Cir. 1962 : Is Knowledge + Presence sufficient?
    • ∆ convicted of counterfeiting $$, Q is about Macchia (the co∆): is knowledge of crime + presence sufficient to establish guilt
    • Faulty jury instruction case: Judge told jury that that ^^ was sufficient
    • Rule: That was wrong: To prove an A&A case, you must prove some purposeful intent/ desire for the crime to come to fruition:
    • NOTE: Presence + Knowledge= sufficient if he did something to further crime
  • Commonwealth v. Feinberg - Pa 1969 : The Sterno Case
    • Sold sterno (knowing alcoholics drank them) at corner store in Philly skid row; his order was filled w/ more potent form of sterno (claims he didn’t know at first but giant skulls on them); he sold 400 cans but returned rest
    • 31 people died, he is charged w/ 31 counts of IVMS (died in prison)
    • Holding: ∆ G bc he knew the products weren’t being used as they should.
      • This shows reckless disregard for human life
    • Marcus belief: If you want to make sale of legal item illegal, then you need a statute about it/ imposing regulations.
  • United States v. Kelley - 4th Cir. 1985 : Act requirement for A&A
    • Created org teaching individuals how to evade taxes; charged w/ aiding in false w4 claims;
    • Issue: If he never, pen in hand, helped in preparing the tax forms, can he be G
    • Holding- yes, he can
    • Rule: If knowledge of crime + intent for it to be carried out + action (he encouraged it) is sufficient
  • People v. Poplar - Mich Ct App 1969: Accomplice Liability
    • ∆ charged with b&e/assault w/ intent to commit murder as an accessory; someone was shot; he claims he can’t be held accountable for that; court says, not true, ∆ G bc accomplice liability
    • Rule: In Minn: Aider/abettor liable for any offense committed that was reasonably foreseeable
    • Marcus says: they are applying a negligence standard to assault w/ intent to commit murder (basically the felony murder rule except for victim didn’t die)
  • State v. Fornella - Withdrawal as an accomplice
    • Boy was part of group, going to steal and math test; he left before completed (realized it was wrong and left
    • He is charged w/ them
    • State says: for successful withdrawal, you must let the others know AND it must be effective (alert authorities)
  • Note: WITHDRAWAL To establish withdrawal (assuming burden on ∆, he must prove (1) that he did withdraw, (2) communicated his intent to the other ∆s and (3) that it is effective (alert authorities); and in modern times (4) that you were doing it in good faith

TENN CODE ANN §39-13-503

A rape = unlawful sexual penetration of a victimby a ∆ or of the ∆ by a victim accompanied by any of the following cirumstances:

  1. Force or coercion used to accomplish the act
  2. The sexual penetration is accomplished w/o consent of victim and ∆ knows that the victim didn’t consent
  3. The ∆ knows or has reasom to know that the victim is mentally defective, mentally incapacitated, or physically helpless
  4. Or: sexual penetration is commited by fraud

MPC § 213.1 Rape and Related Offenses

Rape. A male who has sexual intercourse w/ a female not his wife is guilty of rape if:

  1. he compels her to submit by force/threat of death, serious injury, pain or kidnapping, to be inflicted on anyone; or
  2. he has substantially impaired her power to appraise or control her conduct by drugging her, intoxicating her
  3. the female is unconscious
  4. female is less than 10 years old

Note: this hasn’t been adopted by states, was outdated even when created, reflected common law

Common Law Definition (Largely the Same as 1950’s MPC Definition)
  • Intercourse (any kind of penetration) + by a man against a woman + by force or threat of force + with no consent
    • Part of “by a man against a woman has been taken out in modern statutes
  • Old definitions include “Carnal knowledge”, “man against woman not his wife”
  • Historically, woman had to prove she resisted to determine if it was sufficient force to establish rape.

Modern day elements (taken from TN statute): Rape is unlawful sexual penetration of a victim by the ∆ or of the ∆ by a victim accompanied by any of the following circumstances

  • Force/coercion
  • Sexual penetration accomplished w/o consent of victim and ∆ knows no consent
  • ∆ knows or has reason to know that victim is mentally incapacitated of physically helpless
  • Sexual penetration commited by fraud

Note: in VA, took out “consent” : ∆ must prove consent if they believe they had it (becomes an affirmative defense): but they left in “penetration by force or threat of force”

Rerforms in Rape:

  • Re-assessing the statute of limitations
  • Statutes are less and less gender specific
  • Marital exemption (20+ states still treat marital rape differently w/ penalties + needs to be reported sooner)
  • Victims rights
  • Name of the crime
  • Degrees of crime- some states add these bc not one size fits all
  • Shield Statutes: reputation evidence related to victims prior sexual conduct shall not be admitted in evidence in prosecution.


  • State in Interest of M.T.S. - NJ 1992
    • Judicial opinion explaining the changes in the law about rape
    • Burden of proof of non-consent used to be on women (resistance was used to establish this”
    • Women had to resist to the extent of her ability
    • Prompt complaint was necessary
    • Needed strong evidentiary support: testimony was not enough
  • People v. Iniguez - Cal 1994
    • Woman raped while she feigned sleep by her aunt’s husband; victim panicked and froze; ∆ admits she didn’t consent
    • Issue: Rape conviction possible w/ evidence that force or threat of force used?
    • Holding: Fear establishes this; fear is subjective and objective (she was afraid + it was reasonable to be afraid)
      • Also, fear of force satisfies the force requirement
  • Commonwealth v. Caracciola - Mass 1991
    • ∆ pretended to be police officer; picked up a woman, made her drive; threatened arrest; stopped at park and asked her to have sesx with him
    • Issue: ∆ argues there is no force or threat of force used
    • Rule: fraudulent inducement can satisfy force/threat requirement
    • Dissent: conviction unwarranted under the badly-drafted statute: rule of lenity tells us ∆ should be acquitted; push legislature to change statute afterwards.
Homicide Elements of Murder
  1. ACT: Affirmative act or omission of act
  2. MENS REA: Malice aforethought + 4 possible intents
    1. FIRST DEGREE- Intent to kill + Premeditation/Deliberation
    2. SECOND DEGREE [Common Law Murder]: Req’s Malice (shown in 4 ways:)
      1. Intent to kill
      2. Intent to inflict bodily harm
      3. Gross Recklessness (malignant heart)
      4. Felony Murder (sometimes elevated to 1st degree by statute)


  • State v. Fierro - AZ 1979 What is Death
    • ∆ shot man, who didn’t die until 4 days later, when life support turned off; ∆ argues he can’t be guilty of murder1 bc removal from life support
    • Problem: AZ didn’t have def of “death” should have deferred to common law, which they didn’t (judge created new def.- can they do that? Not supposed to)
      • Common law def was the circulation of blood
    • Rule: Wounds don’t need to be direct COD; sufficient that they cause death indirectly through chain of natural effects + causes unchanged by human action
    • Holding: ∆ is G
    • Note: used to be a year and day rule for homicide: victim had to die w/ the year
  • Cruzan v. Missouri Dept of Health SCOTUS 1990
    • Car accident ; victim was put in hospital; parents asked them to withdraw nutrition + hydration tubes; they refused; still had functioning brain stem (controls regulation of body) but no upper brain activity (everything else)
    • Issue: is it wrong for health dept to req evidence/proof of incompetent’s wishes to be withdrawn from life support
    • Holding: State is entitled to a judicial proceeding to make a determination about the woman; constitution doesn’t forbid it; health dept is allowed
    • Note: doesn’t deal w/ broader issue: this decision is usurped by following 2
  • Washington v. Glucksberg - SCOTUS 1997
    • Surrounding a Washington statute forbidding physician assisted suicide
    • Issue: Do we have the right to receive assistance to end our own life?
    • Rule: It isn’t a violation of constitutional rights to forbid assisted suicide, but Court says debate should continue
    • Court said that for now, issue will be deferred to legislature’s decision
  • Vacco v. Quill - SCOTUS 1997
    • Same case as Glucksberg but w/ NY: Part of conjoined opinion
    • Court of Appeals said statute banning it was unconstitutional (violated equal protection clause of 14th amendment) Supreme court overrules this.
    • W/ Current “Death w/ Dignity” statutes:: requires person to be an adult, often with < 6 mo to live, needs written recommendation, they must self administer
  • What is Life | Keeler v. Superior Ct.
    • Severely injured ex-wife and killed her unborn baby:
    • Issue: CA code calls for murder to be of a human being: do fetus’s count?
    • Rule of Leniency: if not clear what legislative intent was, must be construed in favor of ∆
    • Ex Post Facto laws: retroactively applying laws to crimes that were committed before they were written: court says if they were to allow judicial enlargement of the statute, it would be ex post facto
    • Holding: The statute does not extend to the killing of an unborn fetus.
    • Chavez case: baby born alive, bled to death through umbilical chord
  • Intent to Kill - State v. Gary - Conn 2005
    • Murder by transferred intent; court finds that all that is required is a general intent to commit murder (even if 3d person is murdered instead)
  • Intent to inflict GBH | State v. Thompson - LA 1991 First Degree Murder- GBH
    • Robbed a church, beat the pastor and killed him: ∆ argues he cannot be prosecuted for 1st deg murder bc they cannot prove he had intent to kill/ cause great bodily harm (they don’t know if the metal pipe he had was used)
    • Rule: It isn’t instrument used, but severity of injuries that establishes sufficient proof of specific intent to inflict great bodily harm.
    • Note: IN LA- intent to commit GBH is sufficient for 1st degree murder.
  • Intent to inflict GBH | People v. Geiger - Mich Ct. App. 1968
    • Man beat his wife, drove around with her in back knowing she was very close to death/aspirating on vomit: makes a comment that he’s facing a “murder rap”; waits 8 hours to get her to hospital
    • Issue: evidence that ∆ had intent to cause GBH w/ attendant likelihood that death could result from the harm?
    • Holding: gap in time bt injuries and seeking help establishes he had intent to cause GBH
  • Depraved Heart - Gross Recklessness | People v. Knoller - CA 2007
    • Dog bite case; they were told by vet that dogs were very dangerous
    • Appeals over jury instruction
    • Correct jury instruction: did ∆ acted with a “conscious disregard for human life”
  • Depraved Heart-Gross Reckless | People v. Tseng - Cal Ct. App. 2018
    • 3 cts of 2nd deg murder for gross recklessness; doctor who gave out opioids; overall 9 patients died;
    • Depraved-heart murder different from IVMS bc it requires that the ∆ themself knew of the risk (instead of just a reasonable pearson should have known) and chose to act w/ a disregard towards human life
    • Prior actions/words/etc prove that she had implied malice
Related Topics

The Charlotte lawyers at Powers Law Firm PA are dedicated to compassionate legal representation, predicated on superlative knowledge, trial skills, and conscientious advocacy.

The gift of a legal education extends beyond a fulfilling way to earn a living. Omni autem cui multum datum.

Bill Powers - Bill@CarolinaAttorneys.com

Carolina Law Blog / Awards and Certifications

Client Reviews
I am so fortunate to have had Bill Powers on my case. Upon our first meeting, Bill insisted that through the emotions of anger, sadness, confusion, and betrayal that I remain resilient. He was available to answer questions with researched, logical, truthful answers throughout our two year stretch together... J.R.
Bill Powers and his firm were a true blessing. If anyone is contacting an attorney, it's more than likely not from a positive life experience. If there was a rating for "bedside manner" for lawyers he'd get a 10/10 for that as well. The entire staff were helpful... K.C.
Bill Powers’ staff has handled several traffic citations for me over the years, and they exceeded my expectations each and every time. Would highly recommend anyone faced with a traffic citation or court case contact his office and they will handle it from there. M.C.
Bill and his staff are flat out great. I (unfortunately) was a repeat customer after a string of tickets. These guys not only took care of the initial ticket for me, but went the extra mile and reduced my problems from 3 to just 1 (very minor one) on the same day I called back! I would recommend them to anyone. A.R.