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

Criminal Law - 2021 Outline - Part 5

Download the PDF version of this outline

<< Part 4 | Part 6 >>


  • Mental State | People v. McChristian IL Ct App. 1974
    • Gang rivals and shoot out (of 5 men in car) ; say to the other “we’ll get you next time”; prosecutes several for conspiracy to commit murder+ attempted murder (which jury drops)
    • Rule: to prove it is a conspiracy, state must prove specific intent/common design to murder EACH of the five men.
    • Holding: reversed: no evidence to prove common design/shared intent
  • US v. Bruno - 2d Cir. 1939
    • Typically drug rink distribution conspiracy case. Peru -> NY then to LA and TX; smaller ∆’s arguing they can’t be liable bc they didn’t know the big guy
      • Note: Charged as one conspiracy: actually 3 (Peru/NY, NY/LA, NY/TX)
    • Holding: They can all be charged together bc success of one depended on success as whole; even if smugglers and retailers (LA/TX) didnt’ communicate, they knew of each other’s existence
  • The Agreement | Direct Sales Co. v. US - SCOTUS 1943 Implied agreement
    • VERY famous case; legal acts of drug distributor (knew that client was selling illegally and continued); Is ∆ G of conspiracy to violate fed drug act
    • Falcone Rule: One doesn’t become a party to conspiracy by A&A through legal sales UNLESS he knows of the conspiracy (and inference can’t be drawn from knowledge buyer using goods illegally) - weren’t restricted commodities
    • Holding: Direct Sales knew of the conspiracy + harmful articles = lower burden
    • Some argue this is exact same as Falcone case: did they get it wrong?
    • Rule: No explicit agreement needed to make conspiracy
  • State v. St. Christopher - Minn 1975: Unilateral v. Bilateral
    • ∆ asked cousin to kill ∆’s mom; cousin didn’t intend to, worked with police
    • Issue: Does conspiracy need 2 people to agree/share intent?
    • Holding: Allows for unilateral approach according to MPC
  • Object of the Agreement | Commonwealth v. Donoghue - KY Ct. App 1933
    • Loanshark charging usurious rates, took advantage of poor; charged w/ conspiracy
    • Rule: You cannot charge a conspiracy w/o an actual crime
    • The “Crime” was charging usurious rates
  • Completed Offense | Albernaz v. US - SCOTUS 1981
    • 4 charges: consp. to import mj + consp. Distribute + underlying crimes
    • Rule: when same act/transaction violates 2 dif conspiracy statutes; its okay if each requires a proof of fact that the other does not
  • The FAMOUS Case | Pinkerton v. US - SCOTUS 1946 Complicity Doctrine
    • Rule: Co-conspirator liability: you can held liable for any of your co-conspirators crimes if you haven’t EFFECTIVELY withdrawn (he was just in prison, wasn’t a withdrawal)
    • As long as all the crimes are FORESEEABLE
    • Criticism: “Dragnet” allows gov. to convict ppl 4 crimes they didn’t know ab
  • Pinkerton instruction: if jury finds 1) conspiracy existed 2) ∆ was member, then ∆ can be liable for crimes committed by co-conspirators in furtherance of consp.

Unilateral Approach

  • MPC requirement: only one party needs to agree
  • establishes liability individually
  • If agreement being feigned by one side- can still convict
  • Marcus says: this is just solicitation.

Bi-lateral approach

  • Common law req+ Federal Law
  • Says conspiracy must be 2+ ppl agree
  • Issue: Under this approach: If X + Y charged with conspiracy to commit murder, and Y found NG, then traditionally, X NG
  • ct gets around this by saying conspiracy bt X + unknown others

Defenses Burden of Proof: (Except Insanity)
  1. All states - ∆ must raise issue w/ production of evidence
  2. Then ½ states: ∆ must prove defense w/ preponderance of evidence
  3. OR ½ BOP of gov’t to disprove defense beyond reasonable doubt
Defense of Self / Others Defense of Self

Majority Approach

  1. Imminent danger- Subj.
  2. Imminent Danger- Obj
  3. Amt of Force was needed- Subj.
  4. Amt of force was needed - obj
    • You don’t have to be right, just reasonable (mistakes allowed)

Common Law Approach

  1. Subjective reasonable person standard
    * No state has adopted
  • People v. Goetz - NY Ct App 1986 Reasonable person or reasonable
    • 4 youths approach ∆, ask for money; he shoots them; paralyzes one; ∆ charged w/ attempted murder; issue of past robbery (PTSD)
    • Issue: is SD subjective or objective belief force is needed
    • Holding: In NY, it is the objective standard (but jury can use surrounding circumstances of ∆ to determine if it is reasonable given those facts)
      • Hmm… is that not imposing a bit of a subjective standard?
  • State v. Rupp - Iowa 1979 - No duty to retreat if it is life-threatening
    • Fight at bar, victim charges at ∆, shoots him and flees; history of bad blood and threats bt two
    • Issue: did trial ct err in not including that ∆ doesn’t have duty to retreat if it involves a risk to his life? Court says YES. ∆ allowed to stand ground if risk
  • Commonwealth v. Shaffer - MA Sup. Ct. 1975 - Duty to Retreat
    • Fiancé shot by wife (∆); he threatened her and the kids; she shot when he came down stairs
    • Issue: she wants MA to apply stand your ground rule: if not, she says she retreated to the wall (but she could have called 911, left thru basement door, he had no weapon, she was experienced w/ it)
    • No castle doctrine in this case bc cohabitants
    • Note: opinion notes location increasingly imp. 2 determine reasonability
    • Rule: sticks by no SD until availed self of all alternative ways to avoid
  • State v. Pride - MO Ct. App. 1978
    • Victim robbed at truck stop; hands gun to man; he shoots at fleeing felons who shoot back (∆)
    • ∆ claims SD bc he was being shot at; court rejects this
  • Battered Woman Syndrome | Bechtel v. State - OK 1992
    • Issue: should testimony of battered women’s syndrome be allowed
    • Reasonability and BWS: changes the standard bc she knows of the danger better than others (can see signs it’s coming); what is not normally overt show of violence can be to her; learned helplessness/psychological paralysis
    • What can an expert testify/not testify to?
      • She can testify that it is a real diagnosis; explain cycle of abuse; how it affects perception
      • What she cannot testify to: if the ∆ acted reasonably or not
    • Rule: court reverses decision, remands to be heard w/ testimony (and changes the reasonable person standard to add language relevant subjective to BWS- but doesn’t change anything)
    • Dissent: there doesn’t need to be any BWS testimony in this case bc this is typical self-defense; no change to language was needed for this case; if we are going to add that, the legislature should do it.
    • Prevailing view: no new defense w/ this case; just reemphasizes SD
    • Q: W/ BWS: does it apply against all ppl or just her abuser? Who else could get this treatment (PTSD/Holocaust syndrome?) Same case as Goetz?
  • Self-Defense w/ Wrongful Arrest | People v. Cherry - NY Ct. App 1954
    • Right to self-defend against wrongful arrest: this court says YES.
    • Rule: if you believe it is an illegal arrest (even by uniformed officer) you can resist
      • At time, this was common law - but you had to be RIGHT ab the wrongful arrest
    • Now: Almost all courts say NO. Increases risk; if wrongful arrest, deal w/ it in court
      • Rule now: If reasonable person would believe if it is a police officer, you have no right to resist, even if it is an unreasonable arrest
        • EXCEPT: if excessive force- u can use force (ex=Floyd)
  • State v. Fair - NJ 1965 - Defense of Others
    • Guy friend intervened; stabbed abusive bf; all were drunk
    • Issue: Did trial ct fail in failing to instruct on defense of others? “Yes.”
Two Rules W/ Who Has the Power to Intervene
  1. Alter ego: ∆ steps into shoes of the defended party
    1. 3d party has right if the assumed victim would have right
  2. Objective test: intervening party is bound only to own intent (MPC)
    1. One who intervenes under a reasonable belief he is protecting another who he believes is being unlawfully assaulted is to be exonerated
    2. Encourages bystanders to intervene w/o threat of conviction
    3. Same subjective/objective test as SD but w/ 3d person instead of self
Common Law: Retreat to the Wall
  • Do everything you can before deadly force
  • However, if escape is perilous, you can use deadly force

Castle Doctrine: One who, through no fault of his own, is attacked in his own home has no duty to retreat

  • Can only be invoked by one w/ no fault (can’t be bc of a fight)
  • Privilege of non-retreat from own property (exception to duty to retreat)
  • Oftentimes extends past 4 corners of home (some states, your yard, others - porch)
  • Intersection between defense of habitation and SD
  • Not usually a thing when other person is cohabitant
  • The felony doesn’t need to be forceful or atrocious (as it does typically w/ SD)

Stand your ground: No duty to retreat

  • Aba has decided these laws increase homicides/don’t deter violent crimes
  • Huge racial impact
  • States are urged to repeal them (they don’t except when cops say to)
  • Only against the offender (sill L if a bystander dies)
Defense of Property (Subcategory of SD)


  • People v. Cebellos - Cal. 1974 - Trap Guns
    • Trap gun kills 16 yo burglar
    • Rule: only justified if they would have been justified to use SD if present
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.