THE NATIONAL CRIMINAL
JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
VOLUME 7: SUBSTANTIVE CRIMES AND DEFENSES THERETO (Chapters 76-114)
TABLE OF CONTENTS
Chapter 76: Arson, Vandalism, Destruction Of Property, Etc.
76.1 Arson
76.1.1 Arson: Links To Other Sources
76.1.1.1 Arson: Cross References And Research Notes
76.1.1.2 Arson: Federal Circuit Models Instructions And Notes
76.1.2 Arson: Miscellaneous Issues
76.1.2.1 Arson: Definition Of Inhabited Structure
76.1.3 Arson: Defenses And Defense Theories
76.1.3.1 Arson: Defense Theory That No Burning Occurred
76.1.3.2 Defense Theory That The Intent Necessary For Arson Was Not Proven
76.1.3.3 Arson: Defense Theory That Only Personal Property Was Burned
76.1.3.4 Arson: Consent As Defense Theory
76.1.3.5 Arson: Voluntary Intoxication As A Defense Theory
76.1.3.6 Arson: No Arson When Building Is Burned By Its Owner
76.1.3.7 Arson: Defense Theory That Burning Alone Is Insufficient To Convict
76.1.3.8 Arson: Provocation/Heat Of Passion To Negate Malice Element
76.1.3.9 Arson: Additional Defenses And Defense Theories
76.2 Vandalism
76.2.1 Vandalism: Links To Other Sources
76.2.1.1 Vandalism: Cross References And Research Notes [Reserved]
76.2.2 Vandalism: Miscellaneous Issues
76.2.2.1 Malicious Destruction Of Property/Vandalism: Valuation Issues
76.2.3 Vandalism: Defenses And Defense Theories
76.2.3.1 Malicious Destruction Of Property/Vandalism: Property Must Be Of "Another"
76.2.3.2 Vandalism: Additional Defenses And Defense Theories
76.3 Destruction Of Property
76.3.1 Destruction Of Property: Links To Other Sources [Reserved]
76.3.2 Destruction Of Property: Miscellaneous Issues
76.3.2.1 Destruction Of Property: Co-Owner’s Destruction Of Property
76.3.3 Destruction Of Property: Defenses And Defense Theories [Reserved]
Chapter 77: Assaultive Crimes (Nonhomicide-Homicide)
77.1 Assault
77.1.1 Assault: Links To Other Sources
77.1.1.1 Assault: Cross References And Research Notes
77.1.1.2 Assault: Federal Circuit Model Instructions And Notes
77.1.2 Assault: Miscellaneous Issues
77.1.2.1 Assault: Distinction Between "Intent To Frighten" Assault And "Attempted Battery" Assault
77.1.2.2 Assault: Does Due Process Require Consideration Of Intoxication In Determining All Mental Elements Of The Charge?
77.1.2.3 Simple Attempted-Battery Assault: Intoxication Not A Defense
77.1.3 Attempted Battery Assault: Defenses And Defense Theories
77.1.3.1 Attempted-Battery Assault: Requirement Of Intent To Commit A Battery
77.1.3.2 Attempted-Battery Assault: Accidental Touching As Defense Theory
77.1.3.3 Attempted-Battery Assault: Lack Of Knowledge As Defense Theory
77.1.3.4 Attempted-Battery Assault: Requires Either Intent To Commit Battery Or An Act "Substantially Certain" To Result In A Battery
77.1.3.5 Attempted-Battery Assault: Defense Theory That A Battery Was Not Substantially Certain To Result From The Act Committed
77.1.3.6 Attempted-Battery Assault: Consideration Only Of Circumstances Known To Defendant When The Act Was Committed
77.1.3.7 Attempted-Battery Assault: Defense Theory That Victim's Injuries Should Only Be Considered When Relevant To Intent
77.1.3.8 Attempted-Battery Assault: Defense Theory That Lack Of Injury Shows Lack Of Intent To Injure
77.1.3.9 Attempted-Battery Assault: Intent To Frighten As Defense Theory
77.1.3.10 Attempted-Battery Assault: Recklessness Or Negligence As Defense Theory
77.1.3.11 Attempted-Battery Assault: Defense Theory That Nonviolent Touching Did Not Injure The Victim's Feelings
77.1.3.12 Attempted-Battery Assault: Lack Of Present Ability As Defense Theory
77.1.3.13 Attempted-Battery Assault: Present Ability Defined -- Unloaded Gun
77.1.3.14 Attempted-Battery Assault: Self Defense
77.1.3.15 Attempted-Battery Assault: Battered Person Syndrome
77.1.3.16 Attempted-Battery Assault: Accident
77.1.3.17 Attempted-Battery Assault: Additional Defenses And Defense Theories
77.2 Intent To Frighten Assault
77.2.1 Intent To Frighten Assault: Links To Other Sources
77.2.1.1 Intent To Frighten Assault: Cross References And Research Notes
77.2.1.2 Intent To Frighten Assault: Federal Circuit Model Instructions And Notes
77.2.2 Intent To Frighten Assault: Defenses And Defense Theories
77.2.2.1 Intent To Frighten Assault: Lack Of Intent To Cause Fear As Defense Theory
77.2.2.2 Intent To Frighten Assault: Victim's Lack Of Fear As Defense Theory
77.2.2.3 Intent To Frighten Assault: Negation Of Intent By Intoxication
77.2.2.4 Intent To Frighten Assault: Self Defense
77.2.2.5 Intent To Frighten Assault: Battered Person Syndrome
77.2.2.6 Intent To Frighten Assault: Accident
77.2.2.7 Intent To Frighten Assault: Additional Defenses And Defense Theories
77.3 Aggravated Assault (Assault With A Deadly Weapon, Etc.)
77.3.1 Aggravated Assault: Links To Other Sources
77.3.1.1 Aggravated Assault: Cross References And Research Notes
77.3.1.2 Aggravated Assault: Federal Circuit Model Instructions And Notes
77.3.2 Aggravated Assault: Miscellaneous Issues
77.3.2.1 Assault: Footwear May Be Deadly Weapon Depending On Manner Of Use
77.3.2.2 Assault With A Deadly Weapon Or By Means Of Force Likely To Produce Great Bodily Injury Or With Firearm
77.3.2.3 Assault With Semi-Automatic Firearm, Machine Gun, Or Assault Weapon [Reserved]
77.3.2.4 Assault With Semi-Automatic Firearm, Machine Gun, Or Assault Weapon On Peace Officer, Etc. [Reserved]
77.3.2.5 Assault With Intent To Commit Specified Offenses (Mayhem, Rape, Sodomy, Oral Copulation)
77.3.2.6 Sexual Intercourse By HIV Carrier As Aggravated Assault: Transmission Of HIV Must Be Likely
77.3.3 Aggravated Assault: Defenses And Defense Theories
77.3.3.1 Assault With A Deadly Weapon: Defense Theory That Bare Hands Or Feet Are Not Deadly Weapons
77.3.3.2 Aggravated Assault: Defense Theory That The Object Used Was Not A Deadly Weapon
77.3.3.3 Aggravated Assault: Athletic Contest As Defense Theory
77.3.3.4 Aggravated Assault: Self Defense
77.3.3.5 Aggravated Assault: Battered Person Syndrome
77.3.3.6 Aggravated Assault: Accident
77.3.3.7 Aggravated Assault: Additional Defenses And Defense Theories
77.4 Assault On Law Enforcement Officer, Custodial Officer Or Firefighter
77.4.1 Assaults On Law Enforcement Officer, Custodial Officer Or Firefighter: Links To Other Sources
77.4.1.1 Assault On Law Enforcement Officer, Custodial Officer Or Firefighter: Cross References And Research Notes [Reserved]
77.4.1.2 Assault On Law Enforcement Officer, Custodial Officer Or Firefighter: Federal Circuit Model Instructions And Notes
77.4.2 Assaults On Law Enforcement Officer, Custodial Officer Or Firefighter: Miscellaneous Issues
77.4.2.1 Assault With A Deadly Weapon Upon A Police Officer [Reserved]
77.4.2.2 Assault On Police Officer: Definition Of Deadly Weapon
77.4.2.3 Assault On Police Officer: Requirement Of Knowledge That Victim Was A Law Enforcement Officer Engaged In Performing Official Duties
77.4.2.4 Assault On Police Officer With Illegal Weapon [Reserved]
77.4.3 Assaults On Law Enforcement Officer, Custodial Officer Or Firefighter: Defenses And Defense Theories
77.4.3.1 Assault On Law Enforcement Officer, Assault On Law Enforcement Officer Intoxication To Negate Mens Rea
77.4.3.2 Defense Theory That Off-Duty Officer Employed As Private Security Guard Was Not Discharging Official Duties
77.4.3.3 Defense Theory Of Self- Defense Against "Excessive Force" By Police Officer
77.4.3.4 Assault On Law Enforcement Officer, Custodial Officer Or Firefighter: Accident
77.4.3.5 Assault On Law Enforcement Officer, Custodial Officer Or Firefighter: Additional Defenses And Defense Theories
77.4.4 Assault On Police Officer: Lesser Offenses
77.4.4.1 Assault On Police Officer: Defense Theory That Simple Assault Or Assault With A Deadly Weapon Are Lesser Included Offenses
77.5 Assault With Intent To Murder
77.5.1 Assault With Intent To Murder: Links To Other Sources
77.5.1.1 Assault With Intent To Murder: Cross References And Research Notes
77.5.1.2 Assault With Intent To Murder: Federal Circuit Model Instructions And Notes
77.5.2 Assault With Intent To Murder: Miscellaneous Issues
77.5.2.1 Assault With Intent To Commit Murder: Requirement Of Intent To Kill
77.5.2.2 Assault With Intent To Commit Murder: Improper To Define Mens Rea As Intent To Murder
77.5.3 Assault With Intent To Murder: Defenses And Defense Theories
77.5.3.1 Aggravated Assault: Intoxication As Defense Theory
77.5.3.2 Assault With Intent To Murder: Self Defense
77.5.3.3 Assault With Intent To Murder: Battered Person Syndrome
77.5.3.4 Assault With Intent To Murder: Mental, Medical Or Physical Impairment Of Defendant
77.5.3.5 Assault With Intent To Murder: Additional Defenses And Defense Theories
77.6 Brandishing Or Pointing Of Firearms
77.6.1 Brandishing Or Pointing Of Firearms: Links To Other Sources
77.6.1.1 Brandishing Or Pointing Of Firearms: Cross References And Research Notes
77.6.1.2 Brandishing Or Pointing Of Firearms: Federal Circuit Model Instructions And Notes
77.6.2 Brandishing Or Pointing Of Firearms: Miscellaneous Issues
77.6.2.1 Brandishing Firearm: Definition of "Rude"
77.6.3 Brandishing Or Pointing Of Firearms: Defenses And Defense Theories
77.6.3.1 Brandishing, Exhibiting Or Pointing A Deadly Weapon In Self Defense
77.6.3.2 Brandishing Firearm: Battered Person Syndrome
77.6.3.3 Brandishing Or Pointing Of Firearms: Additional Defenses And Defense Theories
77.7 Conditional Assault
77.7.1 Conditional Assault: Links To Other Sources
77.7.1.1 Conditional Assault: Cross References And Research Notes [Reserved]
77.7.1.2 Federal Circuit Model Instructions And Notes [Reserved]
77.7.2 Conditional Assault: Miscellaneous Issues
77.7.2.1 Conditional Assault: Requirement That The Threat Be Communicated
77.7.3 Conditional Assault: Defenses And Defense Theories
77.7.3.1 Conditional Assault: Lack Of Intent To Immediately Enforce Performance Of The Condition As Defense Theory
77.7.3.2 Conditional Assault: Self Defense
77.7.3.3 Conditional Assault: Battered Person Syndrome
77.7.3.4 Conditional Assault: Additional Defenses And Defense Theories
77.8 Shooting At Dwelling Or Vehicle
77.8.1 Shooting At Dwelling Or Vehicle: Shooting At Dwelling Or Vehicle: Links To Other Sources
77.8.1.1
Shooting At Dwelling Or Vehicle: Cross References And Research Notes [Reserved]
77.8.1.2
Shooting At Dwelling Or Vehicle: Federal Circuit Model Instructions And Notes
[Reserved]
77.8.2 Shooting At Dwelling Or Vehicle: Miscellaneous Issues
77.8.2.1 Shooting At Occupied Dwelling/Vehicle [Reserved]
77.8.2.2
Shooting At An Inhabited Dwelling: Temporarily Absent Occupant Must Intend To
Continue Living In The Dwelling
77.8.2.3
Shooting At Inhabited Dwelling: Auxiliary Structures
77.8.2.4
Definition Of Inhabited Dwelling: Multiple Rooms
77.8.3 Shooting At Dwelling Or Vehicle: Defenses And Defense Theories
77.8.3.1
Defense Theory That Shooting At Occupied Vehicle Does Not Constitute Assault
77.8.3.2
Defense Theory That Shooting Within A Building Does Not Violate A Statute
Proscribing Shooting At Inhabited Dwelling
77.8.3.3
Shooting At Dwelling Or Vehicle: Self Defense
77.8.3.4
Shooting At Dwelling Or Vehicle: Battered Person Syndrome
77.8.3.5
Shooting At Dwelling Or Vehicle: Accident
77.8.3.6
Shooting At Dwelling Or Vehicle: Additional Defenses And Defense Theories
77.9 Battery
77.9.1 Battery: Links To Other Sources
77.9.1.1 Battery: Cross References And Research Notes
77.9.1.2
Federal Circuit Model Instructions And Notes [Reserved]
77.9.2 Battery: Miscellaneous Issues
77.9.2.1
Battery With Serious Bodily Injury [Reserved]
77.9.2.2
Spitting As Battery
77.9.2.3
Intentional Battery: Requirement Of Intent To Apply Unlawful Force
77.9.2.4
Battery: Whether Criminal Negligence Requirement Is Sufficient
77.9.3 Battery On Law Enforcement Officer, Firefighter, Custodial Officer, Etc.
77.9.3.1
Battery On Police Officer: Discharge Or Performance Of Duties
77.9.3.2
Battery On Law Enforcement Officer Or Firefighter: Requirement Of Knowledge
77.9.4 Battery: Defenses And Defense Theories
77.9.4.1
Consent As Defense To Battery During Athletic Contest
77.9.4.2
Battery: Good Faith Belief In Consent As Defense Theory
77.9.4.3
Battery: Accident As Defense Theory
77.9.4.4
Battery: Defense Theory That Victim Suffered No Physical Injury O Emotional
Distress
77.9.4.5
Battery: Lack Of Knowledge As Defense Theory To Battery Based On Criminal
Negligence
77.9.4.6
Battery: Self Defense
77.9.4.7
Battery: Battered Person Syndrome
77.9.4.8
Battery: Additional Defenses And Defense Theories
77.10 Spousal/Cohabitant Abuse
77.10.1 Spouse Or Cohabitant Beating: Links To Other Sources
77.10.1.1
Spouse Or Cohabitant Beating: Cross References And Research Notes [Reserved]
77.10.2 Spouse Or Cohabitant Beating: Miscellaneous Issues
77.10.2.1
Simultaneous Cohabitating
77.10.3 Spouse Or Cohabitant
Beating: Defenses And Defense Theories
77.10.3.1
Spouse/Cohabitant Beating: Defense Theory That Victim Was Not A Cohabitant
77.10.3.2
Defense Theory That Alleged Victim Was Not A Cohabitant: Factors To Consider
77.10.3.3
Spousal/Cohabitant Abuse: Self Defense
77.10.3.4
Spousal/Cohabitant Abuse: Battered Person Syndrome
77.10.3.5
Spousal/Cohabitant Abuse: Additional Defenses And Defense Theories
77.11 Mayhem
77.11.1 Mayhem: Links To Other Sources
77.11.1.1 Mayhem: Cross References And Research Notes
77.11.2 Mayhem/Disfigurement: Miscellaneous Issues
77.11.2.1 Mayhem: Prosecution Burden To Prove Permanence
77.11.2.2 Mayhem: Intent Not To Be Inferred From Injuries Alone
77.11.3 Mayhem: Defenses And Defense Theories
77.11.3.1 Mayhem/Disfigurement: Defense Theory That Victim Was Not Permanently Disabled Or Disfigured
77.11.3.2 Mayhem: Lack Of Intent To Permanently Disfigure As Defense Theory
77.11.3.3 Mayhem: Defense Theory That Intent To Kill Is Not Sufficient
77.11.3.4 Applicability Of Self Defense To Mayhem
77.11.3.5 Mayhem: Imperfect Self Defense As Defense Theory
77.11.3.6 Mayhem: Heat Of Passion/Provocation As Defense Theory
77.11.3.7 Mayhem: Battered Person Syndrome
77.11.3.8 Mayhem: Accident
77.11.3.9 Mayhem: Additional Defenses And Defense Theories
77.12 Torture
77.12.1 Torture: Links To Other Sources
77.12.1.1 Torture: Cross References And Research Notes
77.12.2 Torture: Miscellaneous Issues
77.12.2.1 Unconstitutional Vagueness Of The Terms
"Cruel," "Sadistic Purpose," "Torture" And
"Extortion"
77.12.2.2 Torture: Evidence Required
77.12.3 Torture: Defenses And Defense Theories
77.12.3.1 Torture: Lack Of Separate Objective From The
Killing As Defense Theory
77.12.3.2 Torture: Mental, Medical Or Physical Impairment
Of Defendant
77.12.3.3 Torture: Additional Defenses And Defense
Theories
77.13 Witness Intimidation
77.13.1 Witness Intimidation: Links To Other Sources
77.13.1.1 Witness Intimidation: Cross References And
Research Notes
77.13.2 Witness Intimidation: Miscellaneous Issues [Reserved]
77.13.3 Witness Intimidation: Defenses And Defense Theories
77.13.3.1 Witness Intimidation: Defense Theory Of No
Intent To Affect Testimony
77.13.3.2 Threats Of Force Or Violence Against Witness Or
Crime Victim: Lack Of Intent To Frighten As Defense Theory
77.13.3.3 Witness Intimidation: Additional Defenses And
Defense Theories
77.14 Terrorist Threats
77.14.1 Terrorist Threats: Links To Other Sources
77.14.1.1 Terrorist Threats: Cross References And Research
Notes [Reserved]
77.14.1.2 Terrorist Threats: Federal Circuit Model
Instructions And Notes
77.14.2 Terrorist Threats: Miscellaneous Issues
77.14.2.1 Terror And Terrorized: Defined
77.14.2.2 Terrorist Threats: Consideration Of Words And
Circumstances
77.14.2.3 Terrorist Threats: Constitutional Challenge
77.14.3 Terrorist Threats: Defenses And Defense Theories
77.14.3.1 Terrorist Threat: Defense Theory Of No Intent To
Place Victim In Fear Of Serious Bodily Injury
77.14.3.2 Terrorist Threats: Defense Theory That Jury Must
Unanimously Agree Upon At Least One Threat As Basis For Conviction
77.14.3.3 Terrorist Threats: First Amendment Defense
77.14.3.4 Terrorist Threats: Additional Defenses And
Defense Theories
77.15 Hate Crimes, Interference With Civil Rights
77.15.1 Hate Crimes: Links To Other Sources
77.15.1.1 Hate Crimes: Cross References And Research Notes
77.15.1.2 Hate Crimes: Federal Circuit Model Instructions
And Notes [Reserved]
77.15.2 Hate Crimes: Miscellaneous Issues
77.15.2.1 Hate Crimes: Constitutional Challenge
77.15.2.2 Hate Crimes: Causation
77.15.2.3 Hate Crimes: Mens Rea
77.15.3 Hate Crimes: Defenses And Defense Theories
77.15.3.1 Hate Crimes: Lack Of Intent As Defense Theory
77.15.3.2 Hate Crimes: Defense Theory That Impermissible
Bias Was Not A Substantial Cause Of The Defendant's Acts
77.15.3.3 Hate Crimes: Defense Theory That Defendant Did
Not Personally Harbor The Required Mental State
77.15.3.4 Hate Crimes: First Amendment Defense
77.15.3.5 Hate Crimes: Additional Defenses And Defense
Theories
77.16 Stalking
77.16.1 Stalking: Links To Other Sources
77.16.1.1 Stalking: Cross References And Research Notes
77.16.1.2 Stalking: Federal Circuit Model Instructions And
Notes
77.16.2 Stalking: Miscellaneous Issues
77.16.2.1 Constitutional Challenges To The Crime Of
Stalking
77.16.2.2 Stalking: Constitutional Challenge To Use Of
Term Repeatedly
77.16.2.3 Stalking: "Repeatedly" Should Not Be
Defined As More Than Once
77.16.3 Stalking: Defenses And Defense Theories
77.16.3.1 Stalking: Defense Theory That The Number Of Acts
Committed Did Not Constitute A "Pattern," "Series" Or
"Course Of Conduct"
77.16.3.2 Stalking: Defense Theory That The Term
Repeatedly Requires At Least Three Separate Acts
77.16.3.3 Stalking: Juror Unanimity As To The Predicate
Acts As Defense Theory
77.16.3.4 Stalking: Defense Theory That Victim's Feelings
Of Harassment Were Not Reasonable And/Or Subjectively Held
77.16.3.5 Stalking: Constitutionally Protected Behavior As
Defense Theory
77.16.3.6 Stalking Following Court Order: Defense Theory
Of Double Jeopardy Based On Prior Contempt Conviction
77.16.3.7 Stalking In Violation Of Court Order: Defense
Theory That Stipulation Bars Evidence Of Court Order Violation
77.16.3.8 Stalking: Lawful Authority As Defense Theory
77.16.3.9 Stalking: Defense Theory That There Was
Insufficient Separation In Time For The Alleged Acts
77.16.3.10 Stalking: First Amendment Defense
77.16.3.11 Stalking: Additional Defenses And Defense
Theories
Chapter 78: Burglary Of Building Or Structure
78.1 Burglary: Links To Other Sources
78.1.1 Burglary: Cross References And Research Notes
78.1.2 Burglary: Federal Circuit Model Instructions And
Notes
78.2 Burglary: Miscellaneous Issues
78.2.1 Burglary: Inhabited Dwelling Defined
78.2.2 Challenge To Multiple Burglary Counts Based On
Entry Of Multiple Rooms In A Single Structure
78.3 Burglary: Defenses And Defense Theories
78.3.1 Burglary: Structure Was Not A Building
78.3.1.1 Burglary: Irreparably Damaged Building Is Not A Dwelling
78.3.1.2 Burglary: New Structure Not Yet Used For Sleeping
Is Not A Dwelling
78.3.1.3 Burglary: Requirement Of Jury Finding On Issue Of
"Building"
78.3.2 Burglary: Structure Was Not Inhabited
78.3.2.1 Burglary: Dwelling Is Not Inhabited If Residents
Have Moved Out With No Intent To Return
78.3.2.2 Burglary: Definition Of Dwelling House: Portion
Used As Business
78.3.2.3 Burglary: Inhabited Dwelling: "For Dwelling
Purposes" Requires Use As Sleeping And Living Quarters
78.3.2.4 Burglary: Inhabited Dwelling Defined: Occupant
Must Be Alive
78.3.2.5 Burglary: Tent Is Inhabited Dwelling
78.3.3 Lack Of Entry
78.3.3.1 Burglary: Requirement Of Entry
78.3.3.2 Burglary: Requirement That Defendant Pass Over
The "Structural Boundary"
78.3.3.3 Burglary: Entry By Part Of Person's Body
78.3.3.4 Burglary: Defense Theory That Instrument Or
Object Which Passed Structural Boundary Was Not Capable Of Completing The
Felonious Purpose
78.3.3.5 Insertion Of Stolen ATM Card Or Forged Check Is
Not Burglary
78.3.4 Lack Of Necessary Intent At Time Of Entry
78.3.4.1 Burglary: Requirement Of Intent
78.3.4.2 Burglary: Defense Theory That The Necessary
Intent Was Not Formed Until After The Entry
78.3.4.3 Burglary: Requirement Of Intent To Commit A Crime
Against Property Or A Person
78.3.4.4 Burglary: Theory That Defendant's Actions After
Entry Are Relevant To Show Lack Of Criminal Intent
78.3.4.5 Burglary: Defense Theory That There Was No Intent
To Permanently Deprive
78.3.4.6 Burglary: Defense Theory Based On Lack Of Intent
To Commit The Intended Crime In The Building Entered
78.3.4.7 Burglary: Intent To Steal Or Commit A Felony May
Not Be Inferred Solely From Unauthorized Entering
78.3.4.8 Burglary: Defense Theory That The Jury Should Be
Instructed On The Definitional Elements Of The Intended Crime
78.3.4.9 Burglary: Defense Theory That The Intended Crime
Was A Lesser Included Misdemeanor Of The Alleged Felony
78.3.4.10 Burglary: Lack Of Notice As To Intended Crime As
Defense Theory
78.3.4.11 Burglary: Intent When Entering Interior Room Not
Substitute For Intent When Initially Entering The Building
78.3.4.12 Entry With Intent To Commit A Crime Which Is
Already Completed Is Not Burglary
78.4 Burglary: Consent, Claim Of Right, Etc.
78.4.1 Burglary: Consent Need Only Be Given By One Of
Multiple Owners
78.4.2 Burglary: Mistake Of Fact As To Right Or Consent To
Enter
78.4.3 Burglary: Defense Theory That Owner Or Occupant
Cannot Commit Burglary Of His Or Her Own Property
78.4.4 Burglary: Defense Theory Of Lawful Authority To
Enter Based On Co-Habitation
78.4.5 Burglary: Claim Of Right To Enter The Property
78.4.6 Burglary: Claim Of Right As To The Property Taken
As A Defense Theory
78.4.7 Burglary: Defense Of Consent
78.5 Burglary: Additional Defenses And Defense Theories
78.5.1 Burglary: Additional Defenses And Defense Theories
78.6 Burglary: Lesser Offenses
78.6.1 Burglary: Defense Theory That The Intended Crime
Was A Lesser Included Misdemeanor Of The Alleged Felony
Chapter 79: Unlawful Remaining In A Building Or Structure
79.1 Unlawful Remaining: Links To Other Sources
79.1.1 Unlawful Remaining: Cross References And Research
Notes
79.1.2 Unlawful Remaining: Federal Circuit Model
Instructions And Notes [Reserved]
79.2 Unlawful Remaining: Miscellaneous Issues [Reserved]
79.3 Unlawful Remaining: Defenses And Defense Theories
79.3.1 Unlawfully
Remaining In Building: Defense Theory That Original Entry Must Be With The
Required Criminal Intent
79.3.2 Unlawful
Remaining: Applicability Of Defenses And Defense Theories To Burglary
79.3.3 Unlawful
Remaining: Additional Defenses And Defense Theories
Chapter 80: Burglary Of A Vehicle
80.1 Burglary Of Vehicle: Links To Other Sources
80.1.1 Burglary Of
Vehicle: Cross References And Research Notes [Reserved]
80.1.2 Burglary Of
Vehicle: Federal Circuit Model Instructions And Notes [Reserved]
80.2 Burglary Of Vehicle: Miscellaneous Issues [Reserved]
80.3 Burglary Of Vehicle: Defenses And Defense Theories
80.3.1 Removal Of
Exterior Parts Insufficient For Vehicular Burglary
80.3.2 Burglary Of
Vehicle: Additional Defenses And Defense Theories
Chapter 81: Child Abuse And Neglect
81.1 Child Abuse/Neglect/Endangerment
81.1.1 Child Abuse/Neglect/Endangerment Felony: Links To Other Sources
81.1.1.1 Child
Abuse/Neglect/Endangerment: Cross References And Research Notes
81.1.1.2 Child
Abuse/Neglect/Endangerment: Federal Circuit Model Instructions And Notes
[Reserved]
81.1.2 Child Abuse/Neglect/Endangerment: Miscellaneous Issues
81.1.2.1 Assault
On Child Under Eight Resulting In Death [Reserved]
81.1.2.2 Child
Beating [Reserved]
81.1.2.3 Child Endangerment [Reserved]
81.1.2.4 Child
Abuse [Reserved]
81.1.2.5 Child
Abuse/Neglect/Endangerment: Definition Of "Care" And
"Custody"
81.1.2.6 Felony
Child Abuse: Mother's Pre-Natal Conduct Such As Consumption Of Drugs Not
Sufficient
81.1.2.7 Child
Abuse: Statutory Vagueness/Overbreadth
81.1.3 Child Abuse/Neglect/Endangerment: Defenses And Defense Theories
81.1.3.1 Child
Abuse/Neglect/Endangerment: Parent's Right To Discipline As Defense Theory
81.1.3.2 Child
Abuse/Neglect/Endangerment: Defense Theory That The Danger To The Child Must Be
Reasonably Foreseeable
81.1.3.3 Child
Abuse/Neglect/Endangerment: Lack Of Knowledge As Defense Theory
81.1.3.4 Child
Abuse/Neglect/Endangerment Based On Omission To Act: Inability To Act As Defense
Theory
81.1.3.5 Child
Abuse/Neglect/Endangerment Based On Omission To Act: Unawareness Of Duty To Act
As Defense Theory
81.1.3.6 Child
Abuse/Neglect/Endangerment Based On Omission To Act: Other Defenses And Issues
81.1.3.7 Child
Abuse/Neglect/Endangerment: Treatment By Spiritual Means As Defense Theory
81.1.3.8 Child
Abuse/Neglect/Endangerment: Additional Defenses And Defense Theories
81.2 Contributing To The Delinquency Of Minors
81.2.1 Contributing To The Delinquency Of Minors: Links To Other Sources
81.2.1.1
Contributing To The Delinquency Of Minors: Cross References And Research Notes
[Reserved]
81.2.2 Contributing To The Delinquency Of Minors: Miscellaneous Issues [Reserved]
81.2.3 Contributing To The Delinquency Of Minors: Defenses And Defense Theories
81.2.3.1
Contributing To The Delinquency Of Minors: Mistake Of Fact As To Age-- Serving
Alcohol To Minors
81.2.4 Contributing To The Delinquency Of Minors: Additional Defenses And Defense Theories
Chapter 82: Computer And High Tech Crimes
82.1 Computer And High Tech Crimes: Links To Other Sources
82.1.1 Computer
And High Tech Crimes: Cross References And Research Notes [Reserved]
82.1.2 Computer
And High Tech Crimes: Federal Circuit Model Instructions And Notes
82.2 Computer Crimes And High Tech Crimes: Miscellaneous Issues
82.2.1 Definition Of Computer System And Computer Network
82.2.2 Whether Telephone Or Voice Mail System Is Covered By
Computer
Crimes Statutes
82.2.3 High Tech Crimes: Additional Defenses And Defense
Theories
Chapter 83: Conspiracy
83.1 Conspiracy: Links To Other Sources
83.1.1 Conspiracy:
Cross References And Research Notes
83.1.2 Conspiracy:
Federal Circuit Model Instructions And Notes
83.2 Conspiracy: Miscellaneous Issues
83.2.1
Coconspirator Issues
83.2.2 Conspiracy:
Proof By Circumstantial Evidence
83.2.3 Criticism
Of The Crime Of Conspiracy
83.2.4 Conspiracy:
Defense Theory That Statements As To The Existence Of Conspiracy ("Spilling
The Beans") Do Not Further The Conspiracy
83.2.5 Conspiracy
And Substantive Offense Should Be Considered Separately
83.2.6 Conspiracy:
Variance
83.2.7 Evidentiary
Issues In Conspiracy Cases
83.2.8 Conspiracy:
Corporate Liability -- Requirement Of At Least Two Natural Persons
83.2.9 Conspiracy:
Deliberate Ignorance
83.3 Conspiracy: Defenses And Defense Theories
83.3.1 Miscellaneous Defenses And Defense Theories
83.3.1.1
Conspiracy: Actual Impossibility As Defense Theory
83.3.1.2 Defense
Theory That Intent To Commit Reckless Or Unintentional Crime Is Not Conspiracy
83.3.1.3
Conspiracy With Government Agent Or Feigned Participant As Defense Theory
83.3.1.4
Conspiracy: Lack Of "Jointly Conceived Plan" As Defense Theory
83.3.1.5
Conspiracy: Person Who Joins Conspiracy After Its Formation Not Liable For Or
Bound By Acts Committed Before He Or She Joined The Conspiracy
83.3.1.6
Conspiracy: Defense Theory That Intended Offense Requires Two Perpetrators (Wharton's
Rule)
83.3.1.7
Conspiracy: Defense Theory That Agreement Or Overt Act Did Not Occur In The
Venue Where The Charges Were Brought
83.3.1.8
Conspiracy: Mistake Of Fact As Defense Theory
83.3.1.9
Conspiracy: Defendant's Belief That He Or She Is Assisting The Government As
Defense Theory
83.3.1.10
Conspiracy: Professional And Ethical Responsibilities Of Lawyer As Defense
Theory
83.3.1.11
Conspiracy: Defense Theory Challenging A Charge Of Attempted Conspiracy
83.3.2 Buyer-Seller Relationship Is Not A Conspiracy
83.3.2.1
Conspiracy: Defense Theory That "Buyer-Seller Relationship" Is
Insufficient
83.3.2.2
Buyer-Seller Relationship: Factors To Consider
83.3.2.3
Buyer-Seller Relationship: Non Drug Cases
83.3.2.4
Buyer-Seller Relationship: Failure To Give Instruction As Plain Error
83.3.3 Existence Of Conspiracy: Miscellaneous Defense Theories
83.3.3.1 Defense
Theory That The Alleged Coconspirator Has Not Been Proven Guilty Of Conspiracy
83.3.3.2
Conspiracy: Adding Or Removing Conspiracy Members Does Not Create A New
Conspiracy
83.3.3.3 Defense
Theory That Conspiracy Terminated When The Criminal Object Was Attained Or
Defeated
83.3.3.4
Circumstances Which Are Not Sufficient To Prove Conspiracy
83.3.3.5
Conspiracy: Requirement Of More Than One Conspirator -- "The Plurality
Requirement" (Collateral Estoppel)
83.3.3.6 Jury
Should First Decide Whether Conspiracy Existed Then Whether Defendant Was a
Member of the Conspiracy
83.3.3.7 Issues
Related To Duration Of Conspiracy
83.3.3.8
"Rule Of Consistency:" Acquittal Of Codefendants Does Not Bar Later
Conviction Of Severed Coconspirator
83.3.4 Overt Acts: Defense Theories
83.3.4.1
Cross-Reference Links And Research Notes
83.3.4.2
Conspiracy: Overt Acts Must Be Proved In Same Manner As Other Elements
83.3.4.3
Conspiracy: Defense Theory That Payment Of Money To A Coconspirator To Secure
Agreement Is Not Overt Act
83.3.4.4 Defense
Theory That Overt Act Was Not Independent Of The Acts Which Made Up The
Conspiracy Agreement
83.3.4.5
Conspiracy: Defense Theory That The Overt Act Was Committed After Completion Of
The Criminal Objective
83.3.4.6 Defense
Theory That The Overt Act Alone Does Not Prove The Conspiracy
83.3.4.7 Defense
Theory That Overt Act Was Not Alleged In Charging Document
83.3.4.8 Defense
Theory That Overt Act Was Not Done In Furtherance Of The Conspiracy
83.3.4.9
Conspiracy: Defense Theory That Overt Act Did Not Occur Within Statute Of
Limitations
83.3.4.10
Conspiracy: Defense Theory That Overt Act Has Not Been Proven
83.3.4.11
Conspiracy: Defense Theory That No Single Overt Act Has Been Proven (Unanimity
As To Overt Act)
83.3.4.12
Conspiracy: Desired Or Wanted Result Is Not An Overt Act
83.3.4.13
Overt Act: Passive Receipt Of Funds
83.3.4.14
Overt Act That Is Also Substantive Count: No Double Jeopardy Problem
83.3.4.15
Overt Acts Do Not Need To Be Charged
83.3.4.16
Whether Acquitted Conduct Can Be An Overt Act
83.3.5 Conspiracy: Mental State -- Defense Theories
83.3.5.1
Conspiracy: Dual Intent Requirement
83.3.5.2
Conspiracy: Defense Theory Of No Wrongful Purpose Or Corrupt Motive
83.3.5.3 Defense
Theory that Defendant Did Not Have The Required Intent
83.3.5.4
Conspiracy: Lack Of Knowledge As Defense Theory
83.3.5.5 Lack Of
Intent As To Predicate Offense As Defense Theory To Conspiracy Charge
83.3.5.6
Conspiracy: Lack Of "Meeting Of The Minds" As Defense Theory
83.3.5.7
Conspiracy: Requirement Of Definition Of "Willfully" When Defendant
Contests Intent To Form The Agreement
83.3.5.8
Conspiracy: Defense Theory That Defendant Misunderstood The Purpose Of Agreement
83.3.5.9
Conspiracy: Degree Of Criminal Intent Must Be At Least That Necessary For The
Substantive Offense
83.3.6 Defendant's Membership In Conspiracy: Defense Theories
83.3.6.1
Conspiracy: Defense Theory The Defendant Committed The Crime As An Independent
Or Spontaneous Act Apart From The Conspiracy
83.3.6.2
Conspiracy: Membership In Uncharged Conspiracy
83.3.6.3
Conspiracy: Defense Theory That There Is No Joint Responsibility Because
Defendant And Coconspirator Were Members Of Different Conspiracies
83.3.6.4
Conspiracy: Joint Responsibility -- Withdrawal As Defense Theory
83.3.6.5
Conspiracy: Defense Theory That Knowing Association Is Insufficient
83.3.6.6 Conspiracy: Defense Theory That Family
Relationship Is Insufficient
83.3.6.7 Conspiracy: Membership Must Be Based On Acts and
Statements Of The Defendant
83.3.6.8 Conspiracy: Defense Theory That Friendship
Between Defendant And Conspirator Is Insufficient
83.3.6.9 Conspiracy: Defense Theory That Sympathy To The
Conspiratorial Objectives Is
Insufficient
83.3.6.10
Conspiracy: Defense Theory That Meeting And Talking Insufficient To Prove
Agreement
83.3.6.11
Conspiracy: Commission Of Act Which Furthers The Conspiracy Does Not Prove
Membership In Conspiracy
83.3.6.12
Conspiracy: Mere Presence Insufficient To Prove Membership
83.3.6.13 Defense
Theory That Defendant Merely Approved Of Or Acquiesced In Object Of The
Conspiracy Without Joining It
83.3.6.14
Conspiracy: Defense Theory That Failure To Prevent The Crime Does Not Establish
Membership In Conspiracy
83.3.6.15
Conspiracy: Defense Theory That More Than "Slight Evidence" Or
"Slight Connection" Required
83.3.6.16
Conspiracy: Defense Theory That Mere Suspicion Or Conjecture Is Insufficient
83.3.6.17
Conspiracy: Jury Should First Decide Whether Conspiracy Existed Then Whether
Defendant Was a Member of the Conspiracy
83.3.6.18 Mere
Presence Or Association: Omission Of The Term "Mere"
83.3.6.19
Conspiracy: Doing Similar Things Or Producing Similar Results Not Sufficient
(Parallelism)
83.3.6.20 Gang
Members' General Agreement To Support Each Other In Fights Is Insufficient To
Prove Conspiracy To Commit Assault
83.3.6.21
Conspiracy: Defense Theory That Purchase Or Solicitation Of Conspiracy's
Services Does Not Prove Membership
83.3.7 Object Of Conspiracy: Defense Theories
83.3.7.1 Defense
Theory That The Jury May Only Find A Conspiracy Based On A Criminal Objective
Which Has Been Alleged By The Prosecution
83.3.7.2
Conspiracy: Defense Theory That No Single Objective Of The Conspiracy Has Been
Proven (Unanimity As To Object)
83.3.7.3 Defense
Theory That The Acts Of The Coconspirators Were Independent Of The
Conspiratorial Objective Or "Common Design"
83.3.7.4
Conspiracy: Objective Must Be Stated As A Substantive Crime Rather Than A
Conspiracy To Commit The Substantive Crime
83.3.7.5
Conspiracy: Requirement That The Target Offense Be Defined
83.3.7.6
Conspiracy: Defense Theory That General Agreement To Engage In Unspecified,
Unlawful Conduct Is Insufficient
83.3.8 Multiple Conspiracy: Defense Theories
83.3.8.1 Defense
Theory That The Evidence Shows Separate Multiple Conspiracies Rather Than One
Single Conspiracy Alleged By The Prosecution
83.3.8.2 Defense
Theory That Each Separately Charged Conspiracy Must Be Considered Separately
83.3.8.3 Defense
Theory That Multiple Charged Conspiracies Are Only One Conspiracy
83.3.9 Duration: Defense Theories
83.3.9.1 Defense
Theory That The Duration Of The Conspiracy Was Not Extended By Post-Offense
Efforts To Conceal
83.3.9.2
Conspiracy: Defense Theory That Overt Act Did Not Occur Within Statute Of
Limitation
83.3.9.3 Duration
Of Conspiracy And Withdrawal
83.3.9.4 Conspiracy Does Not Terminate When
Objective Becomes Impossible To Achieve
83.3.9.5
Conspiracy For Economic Gain Terminates When Funds Are Received
83.3.10 Pinkerton Liability
83.3.10.1
Pinkerton Liability: Defense Theories
83.3.11 Conspiracy: Withdrawal As Defense Theory
83.3.11.1
Withdrawal As Defense To Conspiracy: Requirement Of Affirmative Act Inconsistent
With Object Of Conspiracy
83.3.11.2
Conspiracy: Effect Of Withdrawal
83.3.11.3
Conspiracy: Withdrawal--Defense Theory That Defendant's Specific Actions Were
Inconsistent With The Object Of The Conspiracy
83.3.11.4
Withdrawal From Conspiracy: Sufficiency Of Showing
83.3.11.5
Conspiracy: Withdrawal As Defense Theory - Defendant Need Only Raise A
Reasonable Doubt
83.3.11.6
Conspiracy: Withdrawal Before Commission Of Overt Act As Complete Defense
83.3.11.7
Conspiracy: Withdrawal As Defense To Substantive Offenses Committed By Others
83.3.11.8
Conspiracy: Withdrawal As Defense Based On Statute Of Limitations
83.3.11.9
Conspiracy: Joint Responsibility -- Withdrawal As Defense Theory
83.3.11.10
Conspiracy: Defense Theory That Overt Act Did Not Occur Within Statute Of
Limitation
83.3.11.11
Conspiracy: Withdrawal As Defense Theory To Retroactive Imposition Of Sentencing
Amendment
83.3.12 Agreement: Defense Theories
83.3.12.1
Conspiracy: Agreement Is The Actus Reus
83.3.12.2
Conspiracy: Defense Theory That There Was No Firm, Common, Understanding
Sufficient To Constitute An Agreement
83.3.12.3
Conspiracy: Defense Theory That The Conspirators Did Not Agree To Commit The
Same Offense
83.3.12.4
Conspiracy: Defense Theory That There Was No Agreement Because The Terms Were
Still Being Negotiated
83.3.13 Coconspirator Issues
83.3.13.1
Conspiracy: Limiting Instruction That Subsequent Concealment By One Conspirator
May Not Be Considered As To Other Coconspirators
83.3.13.2
Conspiracy: Decision Must Be As To Each Defendant
83.3.13.3
Conspiracy: Limiting Instruction When Coconspirator Statements Are Not
Admissible Against All Codefendants
83.3.13.4 Limiting
Instructions When Prosecution Elicits Coconspirator's Plea Or Conviction For
Same Charge Alleged Against The Defendant
83.4 Conspiracy: Hearsay Statements Of Coconspirator
83.4.1 Conspiracy: Hearsay Statements Of Coconspirator: Links To Other Sources
83.4.1.1
Conspiracy: Cross References And Research Notes
83.4.1.2
Conspiracy: Federal Circuit Model Instructions And Notes
83.4.2 Admissibility Of Coconspirator Statements: Findings Required
83.4.2.1
Admissibility Of Coconspirator Statement: Trail Court May Take Into
Consideration the Content of the Statement Itself
83.4.2.2
Admissibility Of Coconspirator Statements: Jury Should First Decide Whether
Conspiracy Existed Then Whether Defendant Was A Member Of The C
83.4.2.3
Admissibility Of Coconspirator Statements: Statement Must Have Been Made By A
Member Of The Conspiracy
83.4.2.4
Admissibility Of Coconspirator Statements: Person Making Statement Must Have
Been A Member Of That Conspiracy
83.4.2.5
Admissibility Of Coconspirator Statements: The Statement Must Have Been Made In
Furtherance Of That Conspiracy
83.4.2.6
Admissibility Of Coconspirator Statements: The Statement Must Have Been Made
During The Course Of That Conspiracy
83.4.2.7
Admissibility Of Coconspirator Statements: Court Determines Admissibility Of
Coconspirator's Statement
83.4.2.8 Hearsay
Statements Of Coconspirator: Whether Court Or Jury Determines Admissibility
83.4.3 Hearsay Statements Of Coconspirator: Instructions
83.4.3.1
Conspiracy: Limiting Instruction When Coconspirator Statements Are Not
Admissible Against All Codefendants
83.4.3.2
Conspiracy: Limiting Instruction That Subsequent Concealment By One Conspirator
May Not Be Considered As To Other Coconspirators
83.4.3.3
Statements Made Before Or After Existence Of Conspiracy Limited To Person Making
The Statements
83.4.3.4
Conspiracy: Defense Theory That Statements As To The Existence Of Conspiracy
("Spilling The Beans") Do Not Further The Conspiracy
83.5 Conspiracy: Additional Defenses And Defense Theories
83.5.1 Conspiracy:
Additional Defenses And Defense Theories
83.6 Conspiracy: Lesser Offense
83.6.1 Conspiracy:
Lesser Included Offense Of The Alleged Criminal Objective As Defense Theory
83.6.2 Lesser
Included Offense As Object Of Conspiracy: Reasonable Doubt Must Be Resolved In
Favor Of Lesser Offense
Chapter 84: Contempt, Obstruction Of Justice, Failure To Appear
84.1 Contempt
84.1.1 Contempt: Links To Other Sources
84.1.1.1 Contempt:
Cross References And Research Notes
84.1.1.2 Contempt:
Federal Circuit Model Instructions And Notes
84.1.2 Contempt: Miscellaneous Defense Theories
84.1.2.1 Contempt:
Inability To Comply As Defense Theory
84.1.2.2 Contempt
For Violation Of Court Order: Lack Of Knowledge Of The Court Order As A Defense
Theory
84.1.2.3 Contempt
For Violation Of Court Order: Defense Theory That Violation Was Not Willful
84.1.2.4
Contempt/Obstruction Of Justice For Refusal To Testify: Fear Of Reprisal As
Defense Theory
84.1.2.5
Contempt/Obstruction Of Justice: Ethics Of Professional Responsibility Of
Lawyer/Attorney As Defense Theory )
84.1.2.6 Contempt:
Defense Theories Relating To Omission To Act
84.1.2.7 Contempt:
Additional Defenses And Defense Theories
84.2 Failure To Appear
84.2.1 Failure To Appear: Links To Other Sources
84.2.1.1 Failure
To Appear: Cross References And Research Notes
84.2.1.2 Failure
To Appear: Federal Circuit Model Instructions And Notes
84.2.2 Failure To Appear: Miscellaneous Issues [Reserved]
84.2.3 Failure To Appear: Defenses And Defense Theories
84.2.3.1 Failure
To Appear: Unconstitutional Presumption From Failure To Appear Within Certain
Number Of Days
84.2.3.2 Failure
To Appear: Defense Theory Of No Intent To Evade The Process Of The Court
84.2.3.3 Failure
To Appear: Defense Theories Relating To Omission To Act
84.2.3.4 Failure
To Appear: Additional Defenses And Defense Theories
Chapter 85: Criminal Street Gangs
85.1 Gang Crimes: Links To Other Sources
85.1.1 Criminal
Street Gangs: Cross References And Research Notes
85.1.2 Criminal
Street Gangs: Federal Circuit Model Instructions And Notes
85.2 Criminal Street Gangs: Miscellaneous Issues
85.2.1 Criminal
Street Gangs: Predicate Offenses Must Be Proven Beyond A Reasonable Doubt
85.2.2 Criminal
Street Gangs: Juror Unanimity As To Predicate Offenses
85.2.3 Criminal
Street Gangs: Duty To Define "Actively Participated"
85.2.4 Gang
Activity/Pattern of Activity
85.2.5 Gang
Offense: Pattern Of Criminal Activity Must Occur Prior To The Charged Offense
85.2.6 Criminal
Street Gangs: Expert's Testimony Must Be Based On Personal Knowledge Or Actual
Evidence
85.2.7
Admissibility Of Gang Affiliation Evidence
85.2.8 Criminal
Street Gangs: Briefing Available
85.2.9
Understanding "Gang" Offenses
85.3 Criminal Street Gangs: Defenses And Defense Theories
85.3.1 Criminal
Street Gangs: Defense Theory That Predicate Offenses Must Be Gang Related
85.3.2 Criminal
Street Gangs: Defense Theory That Conduct Was Not Felonious
85.3.3 Criminal
Street Gangs: Lack Of Pattern Of Criminal Activity As Defense Theory
85.3.4 Gangs:
Defense Theory That Homicide Is Not Necessarily A Foreseeable Risk Of Gang
Activity
85.3.5
"Primary Activity" Of Gang: Defense Theory That Current Offenses Are
Not Sufficient
85.3.6 Criminal
Street Gangs: Defense Theory That Federal Constitution Requires Unanimity As To
Predicate Offenses
85.3.7 Criminal
Street Gangs: Additional Defenses And Defense Theories
85.3.8 Criminal
Street Gangs Liability Based On Giving Advice: First Amendment Defense
85.3.9 Criminal Street Gangs: Gang
Member Registration Law Unconstitutionally Vague
85.3.10 Gang Evidence Improper
Where Future Dangerousness Not Raised
Chapter 86: Criminal Writings: Forgery, Bad Checks, Etc.
86.1 Forgery
86.1.1 Forgery: Links To Other Sources
86.1.1.1 Forgery:
Cross References And Research Notes [Reserved]
86.1.1.2 Forgery:
Federal Circuit Model Instructions And Notes
86.1.2 Forgery: Miscellaneous Issues
86.1.2.1 Uttering
A Forged Check With Intent To Defraud
86.1.3 Forgery: Defenses And Defense Theories
86.1.3.1 Forgery:
Requirement Of Intent To Defraud
86.1.3.2 Forgery:
Defense Theory That Document Was Genuine Even If It Contained False Statements
86.1.3.3 Forgery:
Defense Theory That Document Could Not Operate To Prejudice Another
86.1.3.4 Forgery:
Additional Defenses And Defense Theories
86.2 Bad Checks
86.2.1 Bad Checks: Links To Other Sources
86.2.1.1 Bad
Checks: Cross References And Research Notes
86.2.2 Bad Checks: Miscellaneous Issues
86.2.2.1 Bad
Checks: Constitutional Challenge To Statutory Presumptions
86.2.2.2 Bad
Checks: Post-Dated Check Requires Determination Of Intent On Date Goods Were
Received
86.2.2.3 Bad
Checks: Post-Dated Check Does Not Violate Statute That Requires Intent To
Defraud When Check Is Written
86.2.3 Bad Checks: Defenses And Defense Theories
86.2.3.1 Bad
Checks: Defense Theory That Payee Was Informed Of Insufficient Funds
86.2.3.2 Bad
Checks: Defense Theory Of "Ongoing" Understanding Of Insufficient
Funds
86.2.3.3 Bad
Checks: Defense Theory That Payee Knew Or Had Reason To Believe There Were
Insufficient Funds
86.2.3.4 Bad
Checks: Mistake As Defense Theory
86.2.3.5 Bad
Checks: Defense Theory That Defendant Acted Under Orders Of Superior Without
Deriving Personal Benefit
86.2.3.6 Bad
Checks: Additional Defenses And Defense Theories
Chapter 87: Destructive Devices
87.1 Destructive Devices: Links To Other Sources
87.1.1 Destructive
Devices: Cross References And Research Notes [Reserved]
87.1.2 Destructive
Devices: Federal Circuit Model Instructions And Notes
87.2 Destructive Devices: Miscellaneous Issues
87.2.1
Destructive Devices: Murder By Destructive Device
87.3 Destructive Devices: Defenses And Defense Theories
87.3.1 Destructive
Device Offenses: Defense Theory That Device Did Not Have Capability For
Destruction Of Life Or Property
87.3.2 Possession
Of Destructive/Explosive Devices: Momentary Possession
87.3.3 Possession
Of Destructive/Explosive Devices: Possession Issues And Defenses
87.3.4 Destructive
Devices: Additional Defenses And Defense Theories
Chapter 88: Drugs, Controlled Substances
88.1 Drugs, Controlled Substances: General Issues And Defense Theories
88.1.1 Drugs,
Controlled Substances: Controlled Substance: Defense Theory That Identity Of
Controlled Substance Was Not Proven
88.1.2 Challenge
To "Drug Involvement Profile" Evidence As Substantive Proof of Guilt
88.1.3 Defense
Theory That Buyer-Seller Relationship Is Not A Drug Conspiracy
88.1.4 Drugs,
Controlled Substances: Defense Of Entrapment
88.1.5 Drugs,
Controlled Substances: Controlled Substances And Illegal Drugs: Defense Theory
Of Ultimate User Doctrine
88.1.6 Drugs,
Controlled Substances: Possession For Religious Use As Defense Theory
88.1.7 Unlawful
Drug Prescription: Good Faith Practice Of Medicine As Defense Theory
88.1.8 Factors To
Consider In Evaluating Analysis Of The Drug Or Substance
88.1.9 Challenging
The Distinction Between Cocaine And Cocaine Base On Equal Protection And Former
Jeopardy Grounds
88.1.10
Constitutional Challenge To Criminalization Of Loitering With Intent To Commit
Drug Offense
88.2 Drugs, Controlled Substances: Medical Necessity As Defense Theory
88.2.1 Medical
Necessity Defense To Marijuana Charges: Elements Of The Defense
88.2.2 Medical
Necessity Defense To Marijuana Charges: Requirement That Alternative Legal Drug
Is Not Available
88.2.3 Medical
Necessity Defense To Marijuana Charges: Applies to Transportation
88.2.4 Medical
Necessity Defense To Marijuana Charges As Mitigation At Sentencing
88.3 Drugs, Controlled Substances: Quantity Issues
88.3.1 Drugs, Controlled Substances: Miscellaneous Quantity Issues
88.3.1.1 Drugs,
Controlled Substances: Quantity Enhancement As Element Of Proof For Jury (e.g.,
21 USC 841)
88.3.1.2 Drugs,
Controlled Substances: Quantity Includes Cutting Agent
88.3.1.3 Drugs,
Controlled Substances: Use of Waste Material In Calculating Quantity
88.3.1.4 Drugs,
Controlled Substances: Quantity--Actual Possession Not Necessary For Conspiracy
To Purchase
88.3.2 Quantity Issues: Defenses And Defense Theories
88.3.2.1 Drugs,
Controlled Substances: Quantity-- Defense Theory That Mixing Agent Did Not
"Facilitate Distribution" Of The Drug
88.3.2.2 Drugs,
Controlled Substances: Quantity--Defense Theory That The Substances Were Not A
"Mixture"
88.3.2.3 Drugs,
Controlled Substances: Quantity Of Drugs Involved In Crime Is Not The Amount
Promised By The Government Informant
88.3.2.4 Drugs,
Controlled Substances: Quantity--Lack Of Knowledge As Defense Theory
88.3.2.5 Quantity:
Weight Must Be Based Upon Presently Existing Drug Not Future Intentions
88.3.2.6 Quantity:
Individually Packaged Drugs Must Be Separately Tested
88.3.3 Quantity Issues: Drugs, Controlled Substances: Additional Defenses And Defense Theories (Defense Volume Basic Elements)
88.3.3.1 Quantity
Issues: Drugs, Controlled Substances: Additional Defenses And Defense
88.4 Drugs, Controlled Substances: Simple Possession
88.4.1 Drugs, Controlled Substances: Links To Other Sources
88.4.1.1 Drugs,
Controlled Substances: Cross References And Research Notes
88.4.1.2 Drugs,
Controlled Substances -- Possession: Federal Circuit Model Instructions And
Notes
88.4.2 Simple Possession Of Drugs, Controlled Substances: Miscellaneous Issues
88.4.2.1 Simple
Possession Of Drugs, Controlled Substances: Miscellaneous Issues
88.4.3 Simple Possession: Defenses And Defense Theories
88.4.3.1 Drugs,
Controlled Substances: Simple Possession--Possession Issues
88.4.3.2 Drugs,
Controlled Substances: Momentary, Innocent, Or Unwitting Possession
88.4.3.3 Drugs,
Controlled Substances: Possession--Intoxication Or Mental Impairment As Defense
To Knowledge Element
88.4.3.4 Drugs,
Controlled Substances: Agreement Or Contract To Purchase: Not Possession
88.4.3.5 Drugs,
Controlled Substances: Prescription For Drugs Not Sufficient To Show Possession
88.4.3.6
Possession Of Drugs, Controlled Substances: No Conviction When Unclear Which
Substance Was Possessed
88.4.3.7
Possession Of Drugs, Controlled Substances: Ingestion/Use Alone Not Sufficient
To Prove Possession
88.4.3.8
Possession Of Drugs, Controlled Substances: Under The Influence Not Sufficient
88.4.3.9
Possession Of Drugs, Controlled Substances: Less Than Usable Quantity As Defense
Theory
88.4.3.10 Drugs,
Controlled Substances: Defendant Permitted To Comment On Lack Of Fingerprint
Evidence As Defense Theory
88.4.3.11
Possession Of Drugs, Controlled Substances: Defense Theory Of Juror Unanimity As
To Individual Units Of Contraband
88.4.3.12
Possession Of Drugs, Controlled Substances: Challenge To Multiple Charges Based
On A Single Incident
88.4.3.13 Defense
Theory That Defendant Mistakenly Believed The Substance Possessed Was A
Substance Other Than The One Proscribed By Statute
88.4.3.14
Defendant Must Have Had Knowledge That The Item Possessed Was The Contraband
Charged
88.4.3.15 Simple
Possession: Additional Defenses And Defense Theories
88.5 Drugs, Controlled Substances: Attempted Possession
88.5.1 Drugs,
Controlled Substances: Attempted Possession -- Desire To Purchase Drugs And
Attempt To Negotiate A Deal Not Sufficient
88.5.2
Impossibility As Defense Theory To Attempted Purchase Of Controlled Substance
88.5.3 Attempted
Possession: Requirement That Defendant Believed The Substance Was An Illegal
Drug Or Controlled Substance
88.5.4 Attempted
Possession Of Drugs, Controlled Substances: Verbal Agreement Not Sufficient
88.5.5 Attempted
Possession Of Drugs, Controlled Substances: As Lesser Included Offense Of
Possession For Sale Or Distribution
88.6 Drugs, Controlled Substances: Possession For Sale, Delivery Or Distribution
88.6.1 Drugs, Controlled Substances: Possession For Sale, Delivery Or Distribution: Links To Other Sources
88.6.1.1 Drugs,
Controlled Substances: Cross References And Research Notes
88.6.1.2 Drugs,
Controlled Substances -- Possession For Sale, Delivery Or Distribution: Federal
Circuit Model Instructions And Notes
88.6.2 Possession Of Drugs, Controlled Substances For Sale, Delivery Or Distribution: Miscellaneous Issues
88.6.2.1
Possession Of Drugs, Controlled Substances For Sale, Delivery Or Distribution:
General Issues And Defenses
88.6.2.2
Possession Issues And Defenses
88.6.2.3 Expert
Testimony: Ultimate Fact--Improper For Expert To Express Opinion On Defendant's
Intent To Distribute Controlled Substance|
88.6.3 Possession Of Drugs, Controlled Substances For Sale, Delivery Or Distribution: Defenses And Defense Theories
88.6.3.1
Possession Of Drugs, Controlled Substances For Sale: Juror Unanimity Is As To
Individual Units Of Contraband
88.6.3.2
Possession Of Drugs, Controlled Substances For Sale: Knowledge Of Sale
Insufficient To Establish Intent To Sell
88.6.3.3
Possession Of Drugs, Controlled Substances For Sale: Defense Theory That
Evidence Of Intent To Sell Or Distribute Is Insufficient
88.6.3.4
Possession Of Drugs, Controlled Substances With Intent To Deliver, Distribute Or
Sell: Bare Possession Insufficient
88.6.3.5
Possession Of Controlled Substance With Intent To Sell Or Deliver: Quantity
Possessed Not Alone Sufficient To Prove Intent
88.6.3.6 Police
Officer Expert: Possession for Sale -- Bias Due To Forfeiture
88.6.3.7 Defense
Theory Of No Intent To Sell, Deliver Or Distribute: Factors To Consider
88.6.3.8 Sale Or
Transportation Of Drugs: Defense Theory That Defendant Had No Knowledge Of The
Presence Of The Drugs Or Controlled Substance
88.6.3.9
Possession For Sale, Delivery Or Distribution: Additional Defenses And Defense
Theories
88.6.4 Possession Of Drugs, Controlled Substances For Sale, Delivery Or Distribution: Lesser Offenses
88.6.4.1
Possession For Sale Or Distribution: Simple Possession As Lesser Included
Offense
88.6.4.2
Possession Of Controlled Substance For Sale: Attempted Possession As Lesser
Included
88.7 Drugs, Controlled Substances: Sale, Transportation, Or Distribution
88.7.1 Sale, Transportation, Or Distribution: Links To Other Sources
88.7.1.1 Sale,
Transportation, Or Distribution Of Controlled Substance: Cross References And
Research Notes
88.7.1.2 Sale,
Transportation, Or Distribution Of Controlled Substance: Federal Circuit Model
Instructions And Notes
88.7.2 Sale, Transportation, Or Delivery Of Controlled Substance: Miscellaneous Issues
88.7.2.1 Delivery
Of Controlled Substance: Definition Of Deliver
88.7.2.2 Sale,
Transportation Or Delivery Of Controlled Substance: Purchaser Does Not Deliver
Or Aid And Abet In Delivering Controlled Substance
88.7.2.3
Conspiracy To Transport Drugs Or Controlled Substances
88.7.2.4
Possession For Sale: Expert Testimony Regarding Structure Of Drug Trafficking
Organizations When No Conspiracy Charged
88.7.3 Transportation of Controlled Substances
88.7.3.1
Transportation of Controlled Substance: Definition Of Transportation
88.7.4 Sale, Transportation, Or Delivery Of Controlled Substance: Defenses And Defense Theories
88.7.4.1 Sale,
Transportation, Or Delivery Of Controlled Substance: Entrapment
88.7.4.2 Sale,
Transportation, Or Delivery Of Controlled Substance: Lack Of Knowledge As
Defense Theory
88.7.4.3 Sale,
Transportation, Or Delivery Of Controlled Substance: Additional Defenses And
Defense Theories
88.8 Controlled Substances: Maintaining A "Drug House" -- A Place Where Controlled Substances Are Sold Or Kept
88.8.1 Controlled Substances: Maintaining A "Drug House": Links To Other Sources
88.8.1.1
Controlled Substances: Cross References And Research Notes
88.8.1.2
Controlled Substances: Federal Circuit Model Instructions And Notes [Reserved]
88.8.2 Maintaining A Place Where Controlled Substances Are Sold Or Kept: Miscellaneous Issues
88.8.2.1 Drugs,
Controlled Substances: Maintaining A “Drug House”: Requirement Of More Than
A Single Isolated Activity
88.8.2.2
Maintaining A “Drug House”: Requirement Of Substantial But Not Sole Purpose
88.8.2.3
Maintaining A “Drug House”: Mere Possession Of Limited Quantities Of
Controlled Substance Not Sufficient
88.8.2.4
Maintaining A Place Where Controlled Dangerous Substances Are Kept: Requirement
That Defendant Have Control, Ownership Or Management
88.8.2.5
Maintaining A “Drug House”: Additional Defenses And Defense Theories
88.9 Drugs, Controlled Substances: Manufacturing
88.9.1 Drugs, Controlled Substances: Manufacturing -- Links To Other Sources
88.9.1.1 Drugs,
Controlled Substances: Cross References And Research Notes
88.9.1.2 Drugs,
Controlled Substances: Federal Circuit Model Instructions And Notes
88.9.2 Drugs, Controlled Substances Manufacturing: Miscellaneous Issues
88.9.2.1
Circumstantial Evidence Of Intent To Deliver Or Manufacture: Factors To Consider
88.9.2.2 Whether
Mere Possession Of Manufacturing Equipment And Chemicals Is Sufficient To Prove
Drug Manufacturing
88.9.3 Manufacturing: Defenses And Defense Theories
88.9.3.1 Drugs,
Controlled Substances Manufacturing: Defense Theory That Assembly Or Creation
Process Had Not Begun
88.9.3.2 Drugs,
Controlled Substances Manufacturing: False Statements Insufficient To Support
Missing Elements
88.9.3.3 Drugs,
Controlled Substances Manufacturing/Possession With Intent To Manufacture: Lack
Of Knowledge As Defense Theory
88.9.3.4 Drugs,
Controlled Substances: Manufacturing: Additional Defenses And Defense Theories
88.9.3.5
Manufacture Of Controlled Substance: Adding Cutting Agent Is Not "Production"
Of A Controlled Substance
88.10 Drug Paraphernalia
88.10.1 Drug Paraphernalia: Links To Other Sources
88.10.1.1 Drug
Paraphernalia: Cross References And Research Notes
88.10.1.2 Drug
Paraphernalia: Federal Circuit Model Instructions And Notes
88.10.2 Drug Paraphernalia: Drugs, Controlled Substances: Miscellaneous Issues [Reserved]
88.10.3 Drug Paraphernalia: Defenses And Defense Theories
88.10.3.1 Drug
Paraphernalia: Possession Issues And Defenses
88.10.3.2 Drug
Paraphernalia: Defense Theory That Object Was Not Intended For Drug Purposes --
Factors to Consider
88.10.3.3 Drug
Paraphernalia: Constitutional Challenge Based On Vagueness
88.10.3.4 Drug
Paraphernalia: Additional Defenses And Defense Theories
88.11 Hypodermic Needles
88.11.1 Hypodermic Needles: Links To Other Sources
88.11.1.1
Hypodermic Needles: Cross References And Research Notes
88.11.1.2
Hypodermic Needles: Federal Circuit Model Instructions And Notes [Reserved]
88.11.2 Hypodermic Needles: Drugs, Controlled Substances: General Issues And Defense Theories
88.11.2.1
Hypodermic Needles: Drugs, Controlled Substances: General Issues And Defense
Theories
88.11.3 Hypodermic Needles: Defenses And Defense Theories
88.11.3.1
Hypodermic Needles: Possession Issues And Defenses
88.11.3.2
Hypodermic Needles: Momentary Possession For Purposes Of Disposal
88.11.3.3
Necessity As Defense To Needle Exchange Charge
88.11.3.4
Hypodermic Needles: Necessity As Defense Theory
88.11.3.5
Hypodermic Needles: Additional Defenses And Defense Theories
88.12 Drugs, Controlled Substances: School Proximity
88.12.1 School Proximity: Links To Other Sources
88.12.1.1 Drugs,
Controlled Substances: School Proximity--Cross References And Research Notes
88.12.1.2 Drugs,
Controlled Substances: School Proximity--Federal Circuit Model Instructions And
Notes
88.12.2 School Proximity: Miscellaneous Issues
88.12.2.1 School
Proximity: "Public Place" As Federal Circuit Model Instructions And
Notes Element Of The Charge
88.12.2.2 School
Proximity: Applicability To Conspiracy
88.12.2.3 School
Proximity: Applicability When School Is Closed
88.12.2.4 School
Proximity: Drugs, Controlled Substances: General Issues And Defense Theories
88.12.3 School Proximity: Defenses And Defense Theories
88.12.3.1 School
Proximity: Defense Theory That Reasonable Person Would Not Have Known The:
Property Was A School
88.12.3.2 School
Proximity: Additional Defenses And Defense Theories
Chapter 89: Drunk Driving
89.1 Drunk Driving: Links To Other Sources
89.1.1 Drunk
Driving: Cross References And Research Notes
89.2 Drunk Driving: Miscellaneous Issues
89.2.1 Drunk
Driving: Definition Of Driving
89.2.2 Drunk
Driving: Definition Of Actual Physical Control
89.2.3 Driving,
Operating Or Actual Physical Control: Intent Requirement
89.2.4 Drunk
Driving: Consideration Of All The Evidence And Lack Of Evidence
89.2.5 Drunk
Driving: Applicability To Operation Of Motor Vehicle On Private Property
89.2.6 Drunk
Driving: Prior Conviction Stipulation/Bifurcation
89.3 Defense Theory That Defendant Was Not Under The Influence
89.3.1 Drunk
Driving: Under The Influence Requires Impairment To An Appreciable Degree
89.3.2 Drunk
Driving: Drinking And Driving Not Prohibited
89.3.3 Drunk
Driving: Odor Of Alcohol On Defendant’s Breath Not Sufficient
89.3.4 Drunk
Driving: Factors To Be Considered
89.3.5 Under The
Influence: Jury Must Consider Impact On The Particular Defendant -- Not The
Ordinary Person
89.3.6 Under The
Influence: Lay Opinion Testimony As To Under The Influence
89.3.7
Defendant’s Admission Of Drinking Insufficient To Prove Driving While Under
The Influence
89.3.8 Drunk
Driving: Requirement Of Nexus Between Driving And Excessive Blood Or Breath
Alcohol Concentration
89.3.9 Drunk
Driving: Intoxication Requires More Than Being Under The Influence Of Alcohol
89.4 Drunk Driving: Miscellaneous Defenses And Defense Theories
89.4.1 Drunk
Driving: Generally
89.4.2 Drunk
Driving: Defense Theory That Physical Disability Caused Or Contributed To
Defendant's Actions And Mannerisms While Driving
89.4.3 Drunk
Driving: Defense Theory That Fatigue Was A Cause Of The Defendant’s Actions Or
Mannerisms While Driving
89.4.4 Duress As
Defense To Drunk Driving
89.4.5 Drunk
Driving: Diabetes And/Or Hypoglycemia As Defense Theory
89.4.6 Necessity
As Defense To Drunk Driving
89.4.7
Drunk Driving: Defense Theory That Conduct Was Cause By Psychiatric Disorder
89.5 Defenses And Defense Theories Regarding Blood Alcohol Testing
89.5.1 Drunk
Driving: Breath Test -- Jury To Determine Weight
89.5.2 Drunk
Driving: Defense Theory That Police Improperly Failed To Advise Defendant That
The Breath Sample Would Not Be Retained
89.5.3 Drunk
Driving: Failure To Advise Defendant Of Right To An Independent Test
89.5.4 Drunk
Driving: Prosecution Must Prove Accuracy Of Blood Alcohol Test Beyond A
Reasonable Doubt
89.5.5 Drunk
Driving: Blood Alcohol Level Does Not Create Presumption Of Guilt Or Shift
Burden Of Proof
89.5.6 Drunk
Driving: Presumption Of Innocence Remains Even If Blood Alcohol Level Is 0.05%
Or More
89.5.7 Drunk
Driving: Presumption In Favor Of Defendant From Blood Alcohol Below 0.05% Should
Be Mandatory
89.5.8 Drunk
Driving: Improper To Instruct On Rebuttable Presumption In Favor Of Defendant
From Blood Alcohol Below 0.05%
89.5.9 Drunk
Driving: Reversible Error To Instruct On Presumption When Blood Alcohol Level Is
Less Than Statutory Minimum
89.5.10 Drunk
Driving: Challenge To Partition Ratio Presumption
89.5.11 Drunk
Driving: Challenge To Admissibility Of The Fact That Defendant Refused To Take
The Sobriety Test
89.5.12 Drunk
Driving: Chain Of Custody Challenge To Blood Alcohol Test
89.5.13 Drunk
Driving: Rising Blood Alcohol Defense -- Theory That Blood Alcohol Level Was
Lower At Time Of Driving Than When Tested
89.5.14 Drunk
Driving: Defense Theory That Defendant’s Driving Was Not Impaired Even Though
His Blood Alcohol Level Was Above The Statutory Limit
89.5.15 Drunk
Driving: Additional Defenses And Defense Theories
89.5.16 Drunk
Driving: Expert Witness On HGN Test -- Psychologist vs. Medical Doctor
89.5.17 Drunk Driving (DUI): Breathalyzer Gender Bias
89.6 Drunk Driving: Refusal To Submit To Blood Alcohol Test As Consciousness Of Guilt
89.6.1 Drunk
Driving: Refusal To Submit To Blood Alcohol Test As Consciousness Of Guilt
Chapter 90: Elder Abuse And Neglect
90.1 Elder Abuse, Neglect, Endangerment: Links To Other Sources
90.1.1 Elder Abuse
And Neglect: Cross References And Research Notes [Reserved]
90.1.2 Elder Abuse
And Neglect: Federal Circuit Model Instructions And Notes [Reserved]
90.2 Elder Abuse, Neglect, Endangerment: Miscellaneous Issues [Reserved]
90.3 Elder Abuse, Neglect, Endangerment: Defenses And Defense Theories
90.3.1 Elder
Abuse: Defense Theory That Defendant Did Not Have Duty To Supervise And Control
90.3.2 Elder Abuse
Based On Failure To Perform Duty To Act
90.3.3 Elder
Abuse/Neglect: Additional Defenses And Defense Theories
Chapter 91: Escape
91.1 Escape: Links To Other Sources
91.1.1 Escape:
Research Notes
91.1.2 Escape:
Federal Circuit Model Instructions And Notes
91.2 Escape: Miscellaneous Issues
91.2.1 Escape:
Cautionary/Limiting Instruction As To Defendant's Prisoner Status And Prior
Conviction
91.2.2 Escape:
Cautionary Instruction Regarding Defendant’s Prior Criminal Arrest
91.2.3 Escape:
Cautionary/Limiting Instruction As To Testimony From Witness Who Is Prisoner
91.2.4 Escape:
Whether Lawful Custody Is Factual Or Legal Question
91.2.5 Defendant
Must Personally Use Force Or Violence Or Aid And Abet Or Conspire With The
Person Who Used Force Or Violence
91.2.6
Inapplicability Of Flight Instruction To Crimes Where Flight Is An Element
91.3 Escape: Miscellaneous Defenses And Defense Theories
91.3.1 Escape:
Defense Theory That Defendant Was Not In Custody
91.3.2 Escape:
Defense Theory That Flight From Officer Was Not An Escape From Custody
91.3.3 Escape:
Defense Theory That Defendant Was Not In Custody When Arraigned While On Bail
91.3.4 Escape:
Consent To Be Absent Or To Leave As Defense
91.3.5 Escape:
Applicability To Home Detention
91.3.6 Escape:
Defense Theory Of Unlawful Arrest Or Confinement
91.3.7 Escape:
Defense Theory That Failure To Surrender Or Report Is Not Escape
91.3.8 Escape:
Merely Being "Missing" Is Insufficient To Prove Escape
91.3.9 Escape:
Knowledge Of Custody Requires Consideration Of A Reasonable Person In
Defendant’s Situation
91.3.10 Escape:
Defense Theory That Failure To Return From Furlough Is Not Escape
91.3.11 Defense
Theory That Failure To Return Is Not Sufficient To Prove Intent Or Willfulness
91.3.12 Escape:
Applicability Of Impossibility And No Duty To Act Defenses To Failure To Return
To Detention Following Temporary Leave
91.3.13 Escape:
Defense Theory That Flight Was To Avoid Arrest And Not From "Custody"
91.3.14 Escape:
Defense Theory That Reasonable Person Would Not Have Known He/She Was In Custody
91.3.15 Escape:
Additional Defenses And Defense Theories
91.4 Escape: Necessity/Choice Of Evils, Duress/Coercion/Compulsion As Defense Theory
91.4.1
Duress/Necessity As Justification For Escape
91.4.2
Duress/Necessity As Justification For Escape: Whether Immediate Surrender Is
Required
91.4.3 Necessity
Or Duress As Defense To Escape: Seeking Help From Prison Authorities May Not Be
Reasonable Legal Alternative
91.4.4 Escape From
Prison -- Short Remaining Term As Evidence Of Immediate Danger
91.4.5
Duress/Necessity/Coercion: Escape From Prison – Applicability To Aider And
Abettor
91.4.6
Duress/Necessity/Coercion As Defense To Escape: Factors To Consider
Chapter 92: Homicide
92.1 General Issues And Defenses
92.1.1 Homicide:
Legal Definition Of Death
92.1.2 Prosecution
Must Prove No Irreversible Cessation Of Circulatory, Respiratory And Brain
Functions
92.1.3 Homicide:
Causation
92.1.4
Constitutional Challenge To Criminal Liability For Homicide Based On Simple
Negligence
92.1.5 Liability
For Death Of An Accomplice: Instruction On Causation Principles
92.1.6 Homicide:
Requirement That Victim Be Alive At Time Of Homicidal Act
92.1.7
Homicide/Feticide: Defense Theory That Defendant Believed The Victim Was Already
Dead
92.1.8 Homicide:
Definition Of Intent To Kill
92.1.9 Homicide:
Limitation Of Liability Based On Lapse Of Time Between Injury And Death
92.1.10 Liability
For Death Of An Accomplice: Instruction On Causation Principles
92.1.11 Homicide:
Transferred Intent
92.1.12 Homicide:
Justification
92.1.13 Homicide:
Excuse
92.1.14 Homicide:
Mitigation
92.1.15 Homicide:
Burden Of Proof When Offense Is Charged As Lesser Degree Based On Mitigation
92.1.16 Homicide:
Additional Defenses And Defense Theories
92.1.17 Voir
Dire/Jury Not To Consider Penalty: Whether Jury Should Be Informed That
Noncapital Murder Case Does Not Involve The Death Penalty
92.2 Assisted Suicide/Mercy Killing
92.2.1 Assisted Suicide/Mercy Killing: Links To Other Sources
92.2.1.1 Assisted
Suicide/Mercy Killing: Cross References And Research Notes
92.2.1.2 Assisted
Suicide/Mercy Killing: Federal Circuit Model Instructions And Notes
92.2.2 Assisted Suicide/Mercy Killing: Miscellaneous Issues
92.2.2.1 Assisted
Suicide/Mercy Killing Not Constitutionally Protected
92.2.3 Assisted Suicide/Mercy Killing: Defenses And Defense Theories
92.2.3.1 Defense
Theory That Assisted Suicide/Mercy Killing Is Voluntary Manslaughter
92.2.3.2 Assisted
Suicide/Mercy Killing: Additional Defenses And Defense Theories
92.3 Voluntary Manslaughter
92.3.1 Voluntary Manslaughter: Links To Other Sources
92.3.1.1 Voluntary
Manslaughter: Cross References And Research Notes
92.3.1.2 Federal
Circuit Model Instructions And Notes
92.3.2 Voluntary Manslaughter: General Principles
92.3.2.1 Voluntary
Manslaughter Defined
92.3.2.2 Right To
Inconsistent Defense Theory Of Voluntary Manslaughter When Defendant Denied
Killing Under Oath
92.3.2.3
Definition Of Intent To Kill
92.3.3 Voluntary Manslaughter: Defenses And Defense Theories
92.3.3.1 Voluntary
Manslaughter Based On Heat Of Passion/Hot Blooded Reaction To Provocation (See
Defenses heat of passion)
92.3.3.2 Voluntary
Manslaughter: Applicability Of Self Defense And Defense Of Others
92.3.3.3 Voluntary
Manslaughter: Excuse
92.3.3.4 Voluntary
Manslaughter: Accident
92.3.3.5 Voluntary
Manslaughter: Mitigation
92.3.3.6 Voluntary
Manslaughter: Intoxication As Defense Theory
92.3.3.7 Voluntary
Manslaughter: Mental, Medical Or Physical Impairment Of Defendant
92.3.3.8 Voluntary
Manslaughter: Additional Defenses And Defense Theories
92.4 Involuntary Manslaughter
92.4.1 Involuntary Manslaughter: Links To Other Sources
92.4.1.1 Cross
References And Research Notes
92.4.1.2 Federal
Circuit Model Instructions And Notes
92.4.2 Involuntary Manslaughter: Miscellaneous Issues
92.4.2.1
Involuntary Manslaughter: Defined
92.4.2.2 Homicide:
Failure To Perform Duty Imposed By Law -- Requirement of Recklessness or
Criminal/Gross Negligence
92.4.2.3
Involuntary Manslaughter: Challenge To "Misdemeanor Manslaughter" Rule
92.4.2.4
Manslaughter/Murder: Effect Of Treatment By Spiritual Means
92.4.2.5 Lack Of
Due Caution Is An Improper Standard When Gross Negligence Or Criminal Negligence
Is Required
92.4.2.6 Killing
While Unconscious: Definition Of Unconscious Required
92.4.2.7 Failure
To Secure Infant In Car Seat Is Not "Reckless"
92.4.2.8
Reckless Homicide/Involuntary Manslaughter: Equating Being Under The Influence
With Recklessness Is Improper Mandatory Presumption
92.4.3 Involuntary Manslaughter: Defenses And Defense Theories
92.4.3.1
Involuntary Manslaughter: Lack Of Causation As Defense Theory
92.4.3.2
Noninherently Dangerous Felony As Basis For Instruction On Involuntary
Manslaughter As Lesser Offense
92.4.3.3 Whether
Honest But Unreasonable Self Defense With No Intent To Kill Is Voluntary Or
Involuntary Manslaughter
92.4.3.4 Defense
Theory Instruction On Involuntary Manslaughter Based On Defendant's Inability To
Remember The Killing
92.4.3.5 Defense
Theory Of Unconsciousness When Defendant Was Aware Before And After The Killing
92.4.3.6
Involuntary Manslaughter: Justification
92.4.3.7
Involuntary Manslaughter: Excuse
92.4.3.8
Involuntary Manslaughter: Accident
92.4.3.9
Involuntary Manslaughter: Mitigation
92.4.3.10
Involuntary Manslaughter: Intoxication As Defense Theory
92.4.3.11
Involuntary Manslaughter: Mental, Medical Or Physical Impairment Of Defendant
92.4.3.12
Involuntary Manslaughter: Additional Defenses And Defense Theories
92.4.4 Involuntary Manslaughter: Lesser Offenses
92.4.4.1
Unintentional Killing In Heat Of Passion Or Hot Blood As Mitigated Homicide
92.4.4.2
Involuntary Manslaughter Is A Lesser Included Offense Of Murder Based On
Commission Of An Assault Or Battery Without Intent
92.5 Vehicular Manslaughter
92.5.1 Vehicular Manslaughter: Links To Other Sources
92.5.1.1 Vehicular
Manslaughter: Cross References And Research Notes
92.5.1.2 Vehicular
Manslaughter: Federal Circuit Model Instructions And Notes
92.5.2 Vehicular Manslaughter: Miscellaneous Issues
92.5.2.1 Vehicular
Manslaughter: Basic Speed Law
92.5.2.2 Vehicular
Manslaughter -- Violation Of Basic Speed Law Not Inherently Dangerous
92.5.2.3 Equating
Violation Of Speed Law With Inherent Dangerousness Is Improper Mandatory
Presumption
92.5.2.4 Vehicular
Manslaughter: Effect Of Imminent Peril
92.5.2.5 Vehicular
Manslaughter While Intoxicated
92.5.2.6 Vehicular
Manslaughter While Intoxicated: Jury To Consider Overall Circumstances --
Driving And Intoxication
92.5.2.7 Vehicular
Manslaughter: Intoxication As Proof Of Gross Negligence
92.5.3 Vehicular Manslaughter: Defenses And Defense Theories
92.5.3.1 Vehicular
Manslaughter: Defense Theory That Careless Driving Is Insufficient
92.5.3.2 Defense
Theory That Gross Negligence Requires More Than Violation Of A Traffic Law
92.5.3.3 Vehicular
Manslaughter: Defense Theory That Imminent Peril Affects The Standard Of Care
Which The Defendant Must Exercise
92.5.3.4 Vehicular
Manslaughter While Intoxicated: Lack Of Causal Relationship Between Intoxication
And Death Of Victim As Defense Theory
92.5.3.5 Gross
Negligence: Defense Theory That Defendant Did Not Have Knowledge Of The Risks Of
Drinking And Driving
92.5.3.6 Vehicular
Manslaughter: Mental, Medical Or Physical Impairment Of Defendant
92.5.3.7 Vehicular
Manslaughter: Causation Requirement And Defenses Thereto
92.5.3.8 Vehicular
Manslaughter: Additional Defenses And Defense Theories
92.6 Infant Homicide (Infanticide)
92.6.1 Infant Homicide: Links To Other Sources
92.6.1.1 Infant
Homicide: Cross References And Research Notes
92.6.1.2 Federal
Circuit Model Instructions And Notes
92.6.2 Infant Homicide: Miscellaneous Issues
92.6.2.1 Murder:
Definition Of Viable Fetus
92.6.2.2 Infant
Homicide: Knowledge Of Fetus Required
92.6.2.3
Infant Homicide: Sudden Infant Death Syndrome
92.6.3 Infant Homicide: Defenses And Defense Theories
92.6.3.1 Infant
Homicide: Defense Theory That Fetus Was Not Alive At Birth
92.6.3.2 Infant
Homicide: Post-Partum Disorders As Defense Theory
92.6.3.3 Infant
Homicide: Intoxication As Defense Theory
92.6.3.4 Infant
Homicide: Mental, Medical Or Physical Impairment Of Defendant
92.6.3.5 Infant
Homicide: Additional Defenses And Defense Theories
92.7 Intentional Murder
92.7.1 Intentional Murder: Links To Other Sources
92.7.1.1
Intentional Murder: Cross References And Research Notes
92.7.1.2
Intentional Murder: Federal Circuit Model Instructions And Notes
92.7.2 Intentional Murder: Intent And Malice Issues
92.7.2.1
Intentional Murder: Definition Of Intent To Kill
92.7.2.2 Improper
To Presume Intent To Kill From Use Of Deadly Weapon
92.7.2.3 Mutual
Combat As Defense Theory To Negate Malice
92.7.2.4
Intentional Murder: Concurrence Of Act And Intent To Kill
92.7.2.5
Intentional Homicide: Error To Focus Instruction On Defendant’s Use Of Gun
92.7.2.6
Intentional Homicide: Shooting At Close Range Does Not Conclusively Establish
Intent To Kill
92.7.2.7 No
Accomplice Liability For Intentional Murder Unless Perpetrator Harbored Express
Malice Or Intended To Kill
92.7.3 Intentional Murder: Premeditation And Deliberation Issues
92.7.3.1
Premeditation And Deliberation As Individually Designated Elements
92.7.3.2
Intentional Murder: Specification Of Prosecution's Burden As To Premeditation
And Deliberation
92.7.3.3
Intentional Murder: Impact Of Provocation And Heat Of Passion/Hot Blooded On
Premeditation And Deliberation
92.7.3.4 Honest
Belief In Self Defense As Defense Theory To Premeditation, Deliberation Or Other
Mental Elements Of Murder
92.7.3.5 Killing
Without Premeditation/Deliberation As Lesser Degree OF Murder
92.7.3.6
Premeditation And Deliberation As Inconsistent With Impulsive Attack
92.7.3.7
Premeditation And Deliberation Does Not Preclude Consideration Of Self Defense,
Etc.
92.7.3.8
Deliberation Requires Contemplation Of A Preconceived Design To Kill
92.7.3.9
Premeditation And Deliberation Requirement Of A Conscious Decision To Kill
92.7.3.10
Premeditation And Deliberation Requires A “Second Look”
92.7.3.11
Premeditation Requires A Sufficient Time To Consider And Weigh The Choice
92.7.3.12
Premeditation And Deliberation Requires More Than Specific Intent To Kill
92.7.3.13
Premeditation And Deliberation: Consideration Of Planning, Motive And Manner
92.7.3.14
Premeditation And Deliberation: Jury Consideration Of Lack Of Motive,
Furtiveness Or Relationship Between Defendant And Victim
92.7.3.15 Cultural
Background As Relevant To Premeditation/Deliberation
92.7.3.16
Premeditation/Deliberation: Consciousness Of Guilt Not Relevant
92.7.3.17
Premeditation And Deliberation: Abuse Of Body After Victim Is Dead Not Relevant
92.7.3.18 Absence
of Premeditation As Relevant to Intent To Kill
92.7.3.19
Premeditation And Deliberation: Killing With Deadly Weapon Not Sufficient
92.7.3.20
Premeditation And Deliberation: Act Of Killing Insufficient
92.7.3.21
Premeditation And Deliberation: Time Necessary To Form Cannot Be Arbitrarily
Fixed
92.7.3.22 Defense
Theory That Defendant's Inability To Express His Or Her Emotions Negates
Premeditation And Deliberation
92.7.3.23
Premeditation: Improper To Define As An Opportunity To Reflect
92.7.3.24
Premeditation: Improper To Inform Jury That "Actual Reflection" Is Not
Required
92.7.3.25
Passage Of Time Is Not A Proxy For Premeditation
92.7.4 Intentional Murder: Defenses And Defense Theories
92.7.4.1 Intentional Murder: Justification
92.7.4.2 Intentional Murder: Excuse
92.7.4.3 Intentional Murder: Accident
92.7.4.4 Intentional Murder: Mitigation
92.7.4.5 Intentional Murder: Intoxication
92.7.4.6 Intentional Murder: Mental, Medical Or Physical Impairment Of Defendant
92.7.4.7 Murder: Lack Of Premeditation And Deliberation As Defense Theory
92.7.4.8 Intentional Murder: Additional Defenses And Defense Theories
92.7.5 Intentional Homicide: Lesser Offenses
92.7.5.1 Murder: Accessory To Murder As Lesser Offense
92.7.5.2 Evidence Of Premeditation Does Not Preclude Instruction On
Unpremeditated Murder As Lesser Offense
92.7.5.3 Doubt Whether First Or Second Degree Murder
92.7.5.4 Doubt Whether Murder Or Manslaughter
92.8 Murder: Unintentional Murder (Malice/Depraved Heart)
92.8.1 Unintentional Murder: Links To Other Sources
92.8.1.1 Unintentional Murder: Cross References And Research Notes
92.8.1.2 Unintentional Murder: Federal Circuit Model Instructions And Notes
92.8.2 Unintentional Murder: Miscellaneous Issues
92.8.2.1 Whether Unintentional Murder Requires Actual Knowledge Of Danger
92.8.2.2 Unintentional Murder: Requirement Of Base Antisocial Motive
92.8.2.3 Unintentional Murder Based On Omission To Act Or Perform Duty
92.8.2.4 Unintentional Homicide Theory Must Be Limited To The Perpetrator
92.8.3 Unintentional Murder: Defenses And Defense Theories
92.8.3.1 Unintentional Murder: Defense Of Mutual Combat
92.8.3.2 Unintentional Murder: Negation Of Malice By Imperfect Self Defense
92.8.3.3 Unintentional Murder: Justification
92.8.3.4 Unintentional Murder: Excuse
92.8.3.5 Unintentional Murder: Accident
92.8.3.6 Provocation/Heat Of Passion Can Reduce An Unintentional Homicide
Murder To Manslaughter
92.8.3.7 Intoxication To Negate Mental State Required For Unintentional Murder
92.8.3.8 Unintentional Murder: Treatment By Spiritual Means As Defense Theory
92.8.3.9 Unintentional Murder: Mental, Medical Or Physical Impairment Of
Defendant
92.8.3.10 Unintentional Homicide: Additional Defenses And Defense Theories
92.9 Felony Murder, Statutorily Specified Offenses
92.9.1 Felony Murder: Links To Other Sources
92.9.1.1 Felony Murder: Cross References And Research Notes
92.9.1.2 Felony Murder: Federal Circuit Model Instructions And Notes
92.9.2 Felony Murder: Miscellaneous Issues
92.9.2.1 Felony Murder: Constitutional Challenge Based On Unconstitutional
Presumption Of An Element Of The Offense
92.9.2.2 Felony Murder: Instruction On Elements Of Underlying Felony
92.9.2.3 Felony Murder: All Elements Of The Predicate Felony Must Be Proven
Beyond A Reasonable Doubt
92.9.2.4 Felony Murder: Instruction Proper Even Though Underlying Felony Is
Barred By Statute Of Limitations
92.9.2.5 Felony Murder: Killer Other Than Perpetrator Of Underlying Crime
92.9.2.6 Felony Murder Based On Sex Offenses: Requirement That Victim Be
Alive
92.9.3 Felony Murder: Whether Killing Was Committed During The Underlying Felony
92.9.3.1 Felony: When Still In Progress -- Temporary Safety Defined
92.9.3.2 Felony Continues Regardless Of Temporary Safety If Victim Has Not
Been Released
92.9.3.3 Temporary Safety Rule Applicable To Burglary
92.9.3.4 Temporary Safety Rule: Factors To Consider
92.9.3.5 Termination Of Felony: Temporary Safety As One Of Several Factors To
Consider
92.9.3.6 Robbery -- When Still in Progress/Felony Murder
92.9.3.7 Robbery: When Still In Progress -- Distinction Between Underlying
Offense And Felony Murder
92.9.4 Felony Murder: Defenses And Defense Theories
92.9.4.1 Felony Murder: Lack Of Intent To Commit Underlying Felony As Defense
Theory
92.9.4.2 Failure To Charge Felony Murder As Defense Theory
92.9.4.3 Felony Murder: Termination Of Underlying Felony As Defense Theory
92.9.4.4 Felony Murder: Duty To Instruct On Defenses To Uncharged Predicate
Felony
92.9.4.5 Felony Murder: Lack Of Causation As Defense Theory
92.9.4.6 Felony Murder: Instruction On Lesser Included Offense Of The Underlying
Felony As Defense Theory
92.9.4.7 Felony Murder: Instruction On Misdemeanor As Lesser Included Offense
Of Burglary
92.9.4.8 Felony Murder: Failure To Request Lesser Misdemeanor As Ineffective
Assistance Of Counsel
92.9.4.9 Felony Murder: Defense Theory That Killing Was Not For An
Independent Felonious Purpose
92.9.4.10 No Felony Murder Liability Based On After-Acquired Intent To Commit
Predicate Felony
92.9.4.11 Accomplice Liability For Felony Murder: Intent To Aid And Abet Must
Be Formed Before Or During The Killing
92.9.4.12 Felony Murder: Intoxication As Defense Theory
92.9.4.13 Felony Murder: Mental, Medical Or Physical Impairment Of Defendant
92.9.4.14 Felony Murder: Failure To Perform Legal Duty -- Mens Rea
92.9.4.15 Felony Murder: Additional Defenses And Defense Theories
92.9.5 Felony Murder: Merger Doctrine As Defense Theory
92.9.5.1 Felony Murder: Assault As Improper Predicate Felony
92.9.5.2 Merger Doctrine Makes Felony Murder Inapplicable To Burglary With
Intent To Kill Or Assault
92.9.5.3 Felony Murder: Merger -- Applicability To Child Abuse
92.9.5.4 Inherently Dangerous Felony Murder: Merger Doctrine
92.9.5.5 Natural And Probable Consequences: Application Of Merger Doctrine
92.9.6 Felony Murder, Statutorily Specified Offenses: Lesser Offenses
92.9.6.1 Felony Murder: Instruction On Lesser-Included Offense Of The
Underlying Felony As Defense Theory
92.9.6.2 Felony Murder: Instruction On Misdemeanor As Lesser Included Offense
Of Burglary
92.9.6.3 Felony Murder: Failure To Request Lesser Misdemeanor As Ineffective
Assistance Of Counsel
92.10 Torture Murder
92.10.1 Torture Murder: Links To Other Sources
92.10.1.1 Cross References And Research Notes
92.10.1.2 Federal Circuit Model Instructions And Notes
92.10.2 Torture Murder: Miscellaneous Issues [Reserved]
92.10.3 Torture Murder: Defenses And Defense Theories
92.10.3.1 Torture: Lack Of Causal Connection Between Torture And Death As
Defense Theory
92.10.3.2 Murder By Torture: Lack Of Intent To Inflict Pain As Defense Theory
92.10.3.3 Murder By Torture: Defense Theory That Victim Was Not Alive When
Injuries Were Inflicted
92.10.3.4 Torture Murder: Intoxication As Defense Theory
92.10.3.5 Torture Murder: Mental, Medical Or Physical Impairment Of Defendant
92.10.3.6 Torture Murder: Additional Defenses And Defense Theories
92.11 Lying In Wait
92.11.1 Lying In Wait: Links To Other Sources
92.11.1.1 Cross References And Research Notes
92.11.1.2 Federal Circuit Model Instructions And Notes [Reserved]
92.11.2 Lying In Wait: Miscellaneous Issues [Reserved]
92.11.3 Lying In Wait: Defenses And Defense Theories
92.11.3.1 Heat Of Passion Or Hot Anger May Negate Mens Rea Of Lying In Wait
92.11.3.2 Lying In Wait: Whether Premeditation And Deliberation Is Required
92.11.3.3 Lying In Wait: Intoxication As Defense Theory
92.11.3.4 Lying In Wait: Mental, Medical Or Physical Impairment Of Defendant
92.11.3.5 Lying In Wait: Additional Defenses And Defense Theories
92.12 Murder By Destructive Device
92.12.1 Murder By Destructive Device: Links To Other Sources
92.12.1.1 Cross References And Research Notes
92.12.2 Murder By Destructive Device: Miscellaneous Issues
92.12.2.1 Murder By Destructive Device: Components Must Be An Explosive
92.12.3 Murder By Destructive Device: Defenses And Defense Theories
92.12.3.1 Murder By Destructive Device: Justification
92.12.3.2 Murder By Destructive Device: Excuse
92.12.3.3 Murder By Destructive Device: Accident
92.12.3.4 Murder By Destructive Device: Mitigation
92.12.3.5 Murder By Destructive Device: Intoxication
92.12.3.6 Murder By Destructive Device: Mental, Medical Or Physical Impairment
Of Defendant
92.12.3.7 Murder By Destructive Device: Additional Defenses And Defense
Theories
92.13 Felony Murder, Inherently Dangerous Offenses
92.13.1 Felony Murder, Inherently Dangerous Offenses: Links To Other Sources
92.13.1.1 Cross References And Research Notes
92.13.1.2 Federal Circuit Model Instructions And Notes [Reserved]
92.13.2 Felony Murder, Inherently Dangerous Offenses: Miscellaneous Issues
92.13.2.1 Felony Murder Liability Based On "Inherently Dangerous" Felonies Not
Statutorily Enumerated [Reserved]
92.13.2.2 Felony Murder Liability Based On Sale Or Furnishing Of Controlled
Substance Or Illegal Drug
92.13.2.3 Inherently Dangerous Felony Murder: Specific Offenses
92.13.2.4 Felony Murder: Merger -- Applicability To Child Abuse
92.13.3 Felony Murder, Inherently Dangerous Offenses: Defenses And Defense Theories
92.13.3.1 Inherently Dangerous Felony Murder: Duty To Instruct On Termination
Of Underlying Felony
92.13.3.2 Intent To Kill Cannot Be Presumed From Commission Of A Dangerous
Crime
92.13.3.3 Inherently Dangerous Felony Murder: Merger Doctrine
92.13.3.4 Inherently Dangerous Felony Murder: Intoxication As Defense Theory
92.13.3.5 Inherently Dangerous Felony Murder: Mental, Medical Or Physical
Impairment Of Defendant
92.13.3.6 Felony Murder, Inherently Dangerous Offenses: Additional Defenses And
Defense Theories
92.14 Attempted Murder
92.14.1 Attempted Murder: Links To Other Sources
92.14.1.1 Cross References And Research Notes
92.14.1.2 Federal Circuit Model Instructions And Notes
92.14.2 Attempted Murder: Miscellaneous Issues
92.14.2.1 Attempted Murder: Inconsistent With Attempt To Induce Witness To
Give False Testimony
92.14.2.2 Degree Of Attempted Murder [Reserved]
92.14.3 Attempted Murder: Defenses And Defense Theories
92.14.3.1 Attempted Murder: Lack Of Intent To Kill As Defense Theory
92.14.3.2 Accomplice Liability For Attempted Murder: Perpetrator Must Harbor
Malice
92.14.3.3 Attempted Murder: Justification
92.14.3.4 Attempted Murder: Excuse
92.14.3.5 Attempted Murder: Accident
92.14.3.6 Attempted Murder: Applicability Of Heat Of Passion/Provocation
92.14.3.7 Attempted Murder: Intoxication
92.14.3.8 Attempted Murder: Mental, Medical Or Physical Impairment Of
Defendant
92.14.3.9 Attempted Murder: Additional Defenses And Defense Theories
92.15 Assault With Intent To Commit Murder
92.15.1 Assault With Intent To Commit Murder
92.16 Conspiracy To Commit Murder
92.16.1 Conspiracy To Commit Murder: Links To Other Sources
92.16.1.1 Cross References And Research Notes
92.16.1.2 Federal Circuit Model Instructions And Notes
92.17 Sexual Homicides
92.18 Murder-For-Hire
92.18.1 Whether Jurisdictional
Element Of Murder-For-Hire Law Requires Interstate Use Of Interstate Facility
(18 USC 1958)
93.1 Simple Kidnapping
93.1.1 Simple Kidnapping: Links To Other Sources
93.1.1.1 Simple
Kidnapping: Cross References And Research Notes
93.1.1.2 Simple
Kidnapping: Federal Circuit Model Instructions And Notes
93.1.2 Simple Kidnapping: Miscellaneous Issues
93.1.2.1
Constitutional Challenges To Kidnapping Statutes Predicated On Confinement
Rather Than Asportation
93.1.2.2
Kidnapping During The Commission Of A Carjacking
93.1.2.3
Kidnapping: Victim Under 14 -- Mistake Of Fact As To Age Not A Defense
93.1.3 Simple Kidnapping: Defenses And Defense Theories
93.1.3.1
Kidnapping: Defense Theory That Victim Was Not Alive During The Asportation
93.1.3.2
Kidnapping: Good Faith Belief That The Victim Was Dead As Defense Theory
93.1.3.3
Kidnapping: Consent As Defense
93.1.3.4
Kidnapping: Mistaken Belief That Victim Consented
93.1.3.5
Kidnapping: Defense Theory Of Consent -- Improper To Shift Burden To Defendant
93.1.3.6 Consent
As Defense To Kidnapping: Consent Obtained By Fraud Or Deceit
93.1.3.7 Federal
Kidnapping: Defense Theory That Kidnapping Terminated By Consent Prior To
Interstate Travel
93.1.3.8 Simple
Kidnapping: Additional Defenses And Defense Theories
93.2 Aggravated Kidnapping (For Purpose Of Robbery, Ransom, Rape, Etc.)
93.2.1 Aggravated Kidnapping: Links To Other Sources
93.2.1.1 Cross
References And Research Notes
93.2.1.2
Aggravated Kidnapping: Federal Circuit Model Instructions And Notes
93.2.2 Aggravated Kidnapping: Miscellaneous Issues
93.2.2.1
Kidnapping For Ransom: Definition Of Ransom
93.2.2.2
Kidnapping To Commit Sex Crime: Nonincidental Movement And Movement For A
Substantial Distance As Distinct Elements
93.2.3 Aggravated Kidnapping: Defenses And Defense Theories
93.2.3.1
Kidnapping For Purposes Of Robbery Or Sexual Offenses: Defense Theory That
Movement Or Restraint Was Incidental
93.2.3.2
Aggravated Kidnapping: Defense Theory That Movement Or Restraint Was Incidental
-- Relevant Factors
93.2.3.3 Kidnap
For Robbery Or Ransom: Defense Theory That Accomplice Must Have Knowledge Of
Asportation
93.2.3.4
Aggravated Kidnapping: Applicability Of Defenses To Simple Kidnapping [Simple
Kidnapping: Defenses And Defense Theories])
93.2.3.5
Aggravated Kidnapping: Additional Defenses And Defense Theories
93.3 False Imprisonment
93.3.1 False Imprisonment: Links To Other Sources
93.3.1.1 False
Imprisonment: Cross References And Research Notes
93.3.1.2 Federal
Circuit Model Instructions And Notes [Reserved]
93.3.2 False Imprisonment: Miscellaneous Issues [Reserved]
93.3.3 False Imprisonment: Defenses And Defense Theories
93.3.3.1 False
Imprisonment: Consent As A Defense
93.3.3.2 False
Imprisonment: Belief In Authority To Restrain Or Confine As Defense Theory
93.3.3.3 False
Imprisonment: "Custodial Parent Defense"
93.3.3.4 False
Imprisonment: Applicability Of Defenses To Kidnapping
93.3.3.5 False
Imprisonment: Additional Defenses And Defense Theories
93.4 Child Abduction
93.4.1 Child Abduction: Links To Other Sources
93.4.1.1 Child
Abduction: Cross References And Research Notes
93.4.1.2 Child
Abduction: Federal Circuit Model Instructions And Notes [Reserved]
93.4.2 Child Abduction: Miscellaneous Issues [Reserved]
93.4.3 Child Abduction: Defenses And Defense Theories
93.4.3.1 Child
Abduction: Belief In Necessity To Preserve Child’s Safety Or Welfare As
Defense Theory
93.4.3.2 Child
Stealing: Defense Of Double Jeopardy Based On Prior Contempt Conviction
93.4.3.3 Child
Abduction: Applicability Of Defenses To Kidnapping
93.4.3.4 Child
Abduction: Additional Defenses And Defense Theories
Chapter 94: Money Laundering
94.1 Money Laundering: Links To Other Sources
94.1.1 Money
Laundering: Cross References And Research Notes
94.1.2 Federal
Circuit Model Instructions And Notes
Chapter 95: Perjury And Related Offenses
95.1 Perjury: Links To Other Sources
95.1.1 Perjury:
Cross References And Research Notes
95.1.2 Perjury:
Federal Circuit Model Instructions And Notes
95.2 Perjury: Miscellaneous Issues
95.2.1 Perjury:
Definition Of "Material Matter"
95.2.2 Perjury:
Concealment On Voir Dire As Perjury
95.3 Perjury: Defenses And Defense Theories
95.3.1 Perjury:
Requirement Of Juror Unanimity As To At Least One False Statement
95.3.2
Perjury/False Swearing: Defense Of Recantation Or Retraction
95.3.3 Perjury:
Collateral Estoppel Precludes Charge Of Perjury Based On Alibi Testimony
95.3.4 Perjury:
Advice Of Counsel As Defense
95.3.5 Perjury:
Additional Defenses And Defense Theories
95.3.6 Perjury: "Perjury
Trap" As Defense Theory
95.4 Two Witness Rule
95.4.1 Perjury:
Defense Theory That At Least Two Witnesses Are Required
95.4.2 Perjury:
Two-Witness Rule -- Naming Witnesses As Improper Comment On Evidence
Chapter 96: Prison Crimes (Excluding Escape)
96.1 Prison Crimes: Links To Other Sources
96.1.1 Prison
Crimes: Cross References And Research Notes
96.1.2 Prison
Crimes: Federal Circuit Model Instructions And Notes
96.2 Prison Crimes: Miscellaneous Issues
96.2.1
Cautionary/Limiting Instruction As To Defendant's Prisoner Status And Prior
Conviction
96.2.2
Cautionary/Limiting Instruction As To Testimony From Witness Who Is Prisoner
96.3 Prison Crimes: Defenses And Defense Theories
96.3.1 Duress/Coercion/Necessity As Defense To Prison Crime
96.3.1.1 Threats
By Prison Gang Members May Be Sufficient For Duress/Necessity Defense
96.3.1.2 Threats
By Prison Inmates May Be Sufficient Even If Defendant Didn't First Seek
Protection
96.3.1.3
Applicability Of Duress/Necessity To Possession Of Deadly Weapon By Prisoner
96.3.2 Prison Crimes: Inapplicable To Escapee
96.3.2.1 Assault
By Prisoner: Defense Theory That Defendant Was Not A "Prisoner" After
Escaping
96.3.3 Possession Of Contraband In Jail Or Prison
96.3.3.1
Possession Issues
96.3.3.2
Possession Of Drugs In Jail Or Prison: Lack Of Knowledge As Defense Theory
96.3.3.3
Possession Of Drugs In Jail Or Prison: Defense Theory That Use Alone Does Not
Prove Possession
96.3.3.4
Possession Of Drugs Or Alcohol In Jail Or Prison/Bringing Drugs or Alcohol Into
Jail Or Prison: Chain of Custody As Defense Theory
96.3.3.5
Possession Of Drugs In Jail Or Prison: Defense Theory That Possession During
Work Furlough Is Not Sufficient
96.3.3.6 Bringing
Drugs or Alcohol Into Jail Or Prison: Defense Theory That Mere Possession Is
Insufficient
96.3.3.7 Prison
Crimes: Additional Defenses And Defense Theories
Chapter 97: Receiving Or Possession Of Stolen Property
97.1 Receiving/Possession Of Stolen Property: Links To Other Sources
97.1.1
Receiving/Possession Of Stolen Property: Cross References And Research Notes
97.1.2
Receiving/Possession of Stolen Property: Federal Circuit Model Instructions And
Notes
97.2 Receiving/Possession Of Stolen Property: Miscellaneous Issues
97.2.1 Theft And
Receiving: Whether Thief May Be Convicted Of Both
97.2.2 Challenge
To Charges For Both Receiving Stolen Property And Theft Or Burglary Of The Same
Property
97.3 Receiving/Possession Of Stolen Property: Miscellaneous Defenses And Defense Theories
97.3.1
Receiving/Possession Of Stolen Property: Silence And Failure To Act Not
Sufficient
97.3.2
Receiving/Possession Of Stolen Property: Touching Or Moving Of Stolen Property
Not Sufficient
97.3.3
Receiving/Possession Of Stolen Property: Obtaining Property For Less Than True
Value Not Sufficient
97.3.4 Statute Of
Limitations Defense To Receiving/Possession Of Stolen Property: Not A Continuing
Offense
97.3.5
Receiving/Possession Of Stolen Property: Defense Theory That Property Has Lost
Its Stolen Character
97.3.6
Receiving/Possession Of Stolen Property: Defense Theory That Property Was Not
"Stolen"
97.3.7 Defense
Theory That Property Was Not Stolen: "Reasonable Cause To Believe"
Instruction Improper
97.3.8
Receiving/Possession Of Stolen Property: Defense Theory That Passenger In Stolen
Car Is Not Guilty As Receiver
97.3.9 Defense
Theory That Defendant May Not Be Convicted Of Both Theft And Receiving Stolen
Property
97.3.10
Receiving/Possession Of Stolen Property: Momentary Or Temporary Possession As
Defense Theory
97.3.11
Receiving/Possession Of Stolen Property: Negation Of Knowledge Element By
Intoxication Or Mental Impairment
97.3.12 Defense
Theory That Specification Of Person From Whom Stolen Property Was Received Is
Required Under Due Process/Notice Principles
97.3.13 Receiving
Or Possession Of Stolen Property: Additional Defenses And Defense Theories
97.4 Receiving/Possession Of Stolen Property: Possession Defenses
97.4.1 Cross
Reference To Defense Theories As To Possession
97.5 Receiving/Possession Of Stolen Property: Innocent Intent Defense
97.5.1
Receiving/Possession Of Stolen Property: Innocent Intent Defense
97.5.2 Receiving
Stolen Property: Intent To Return Property Or Other Innocent Intent As Defense
Theory
97.5.3 Receiving
Stolen Property: Innocent Intent Defense -- Factors To Consider In Deciding
Whether Defendant Knew The Property Was Stolen
97.5.4
Receiving/Possession Of Stolen Property: Innocent Intent Defense -- Mere
Possession Insufficient To Establish Knowledge
97.5.5
Receiving/Possession Of Stolen Property: Innocent Intent Defense -- Subsequent
Criminal Intent Not Sufficient
Chapter 98: Regulatory And Administrative Crimes
98.1 Bigamy
98.1.1 Bigamy: Links To Other Sources [Reserved]
98.1.2 Bigamy: Miscellaneous Issues [Reserved]
98.1.3 Bigamy: Defenses And Defense Theories
98.1.3.1 Bigamy:
Mistake Of Fact As Defense
98.1.3.2 Bigamy:
Additional Defenses And Defense Theories
98.2 Welfare Fraud
98.2.1 Welfare Fraud: Links To Other Sources
98.2.1.1 Cross
References And Research Notes
98.2.1.2 Federal
Circuit Model Instructions And Notes
98.2.2 Welfare Fraud: Miscellaneous Issues
98.2.2.1 Welfare
Fraud: Lack Of Entitlement As Element
98.2.2.2 Welfare
Fraud: Expert Testimony
98.2.2.3 Welfare
Fraud: Only One Charge For All Aid Received From Single Act
98.2.2.4 Welfare
Fraud: Accomplice Liability Based On Assistance Of Perpetrator
98.2.3 Welfare Fraud: Defenses And Defense Theories
98.2.3.1 Welfare
Fraud: Defense Theory That The False Representation Was Not Made Knowingly Or
With Intent To Deceive
98.2.3.2 Welfare
Fraud: Additional Defenses And Defense Theories
98.3 Tax Evasion
98.3.1 Tax Evasion: Links To Other Sources
98.3.1.1 Cross
References And Research Notes
98.3.1.2 Tax
Evasion: Federal Circuit Model Instructions And Notes
98.3.2 Tax Evasion: Miscellaneous Issues
98.3.2.1 Failure
To File Tax Return Must Be Willful
98.3.2.2 Tax
Violation: Right to Specific Instruction On Defendant’s Theory
98.3.3 Tax Evasion: Defenses And Defense Theories
98.3.3.1 Willful
Failure To File Tax Return: Lack Of Intent To Evade Taxes As Defense Theory
98.3.3.2 Failure
To File Tax Return: Mistake Of Law As Defense Theory
98.3.3.3 Failure
To File A Tax Return: Lack Of Intent To Violate A Known Duty As Defense Theory
98.3.3.4 Tax
Evasion: Additional Defenses And Defense Theories
98.4 Administrative Crimes
98.4.1 Administrative Crimes: Links To Other Sources
98.4.1.1 Cross
References And Research Notes
98.4.1.2 Federal
Circuit Model Instructions And Notes
98.5 Environmental Crimes
98.5.1 Environmental Crimes: Links To Other Sources
98.5.1.1 Cross
References And Research Notes
98.5.1.2 Federal
Circuit Model Instructions And Notes
98.6 Securities Fraud
98.6.1 Securities Fraud: Links To Other Sources [Reserved]
98.6.1.1 Cross
References And Research Notes
98.6.1.2 Federal
Circuit Model Instructions And Notes
Chapter 99: Resisting Arrest
99.1 Resisting Arrest: Links To Other Sources
99.1.1 Resisting
Arrest: Cross References And Research Notes
99.2 Resisting Arrest: Miscellaneous Issues
99.2.1 Arrest:
Definition
99.2.2 Arrest:
Probable Cause
99.2.3 Lawful
Discharge Of Duty In Making Arrest: Requirements Of Authority To Arrest And
Lawful Arrest
99.2.4 Performance
Of Duties By Officer: Definition
99.2.5 Resisting
Arrest: Applicability to Off-Duty Officer Without Uniform
99.2.6 Performance
Of Duties: Police Officer Employed As Private Security Guard
99.2.7 False
Identification To Police Officer
99.2.8 Resisting
Arrest: Knowledge Of Arrest Requires Consideration Of A Reasonable Person In
Defendant's Situation
99.2.9 Removal Of
Peace Officer's Weapon: Definition Of "Take" Or "Remove"
99.2.10
Determination Of Probable Cause Is A Mixed Question Of Law And Fact
99.3 Resisting Arrest: Defenses And Defense Theories
99.3.1 Resisting
Arrest: Right To Self Defense Against Excessive Force
99.3.2 Defense
Theory That Third Party May Intervene To Prevent Arrest By Officer Using
Excessive Force
99.3.3 Resisting
Arrest: Defense Theory That Verbal Statements Are Not Sufficient
99.3.4 Resisting
Arrest: Lack Of Knowledge That Person Arresting Is An Officer And/Or Making An
Arrest
99.3.5 Resisting
Arrest: Detention Or Apprehension By Store Personnel -- Unlawfulness Of Arrest
Or Detention As Defense Theory
99.3.6 Resisting
Arrest: With Warrant -- Invalidity Of Warrant As Defense Theory
99.3.7 Resisting
Arrest: Flight From Officer -- Defense Theory That Defendant Was Merely A
Witness
99.3.8 Resisting
Arrest: Heat Of Passion As Defense Theory
99.3 9 Resisting
Arrest: Unlawfulness Of Warrantless Arrest As Defense Theory
99.3.10 Use Of
Force During Arrest: Police Officer As Defendant
99.3.11 Resisting
Arrest: Additional Defenses And Defense Theories
99.4 Whether Detention Of Defendant Was Lawful
99.4.1 Defense
Theory That Defendant Was Not Lawfully Detained: Investigative Stop Explained
99.4.2 Defense
Theory That Defendant Was Not Lawfully Detained: Objective Standard
99.4.3 Ignoring
Police Officer Does Not Justify Detention
99.4.4 Head Long
Flight From Police Officer May Justify Detention
99.4.5 History Of
Past Criminal Activity In Locality Does Not Justify Unwarranted Detention
99.4.6 Lawful
Detention Defined: Citizen Has No Obligation To Cooperate With The Police
99.5 Obstructing An Officer
99.5.1 Obstructing
An Officer: Refusal To Answer Questions Insufficient
99.5.2 Obstructing
An Officer: Failure To Act May Be Obstruction If Defendant Refuses To Aid Peace
Officer Requesting Assistance
Chapter 100: Robbery, Carjacking, Etc.,
100.1 Robbery
100.1.1 Robbery: Links To Other Sources
100.1.1.1 Robbery:
Cross References And Research Notes
100.1.1.2 Robbery:
Federal Circuit Model Instructions And Notes
100.1.2 Robbery: General Issues
100.1.2.1 Robbery:
Requirement Of Scienter When Statute Merely Requires A Taking
100.1.2.2 Robbery:
One Crime When Multiple Items Taken From A Victim Pursuant To A Single Plan Or
Intent
100.1.2.3 Robbery:
Using Force To Retain Property As Robbery
100.1.2.4 No
Conviction For Robbery Without A Theft
100.1.3 Robbery: Defense Theory That Victim’s Possessory Interest Was Insufficient
100.1.3.1 Robbery:
Victim Must Have Sufficient Interest In The Property
100.1.3.2 Robbery:
Possession Requires Ownership, Actual Possession Or Representative Capacity
100.1.3.3 Robbery:
All Persons In Joint Possession Of A Single Item Of Property Must Be Placed In
Fear Or Forced To Given Up Possession
100.1.3.4
Propriety Of Robbery Conviction Against "Good Samaritan" Who
Intervenes
100.1.4 Robbery: Defense Theory That The Taking Was Not From The Immediate Presence Of The Victim
100.1.4.1 Robbery:
Taking Must Be From Victim's Immediate Presence
100.1.4.2 Robbery:
Taking, As Opposed To Related Acts, Must Be In Victim's Immediate Presence
100.1.4.3 Robbery:
Defendant Must Have Knowledge Of The Victim's Presence
100.1.5 Robbery: Defense Theory That The Defendant Did Not Obtain Control
100.1.5.1 Robbery:
Taking Does Not Occur Until Victim Loses Ability To Exercise Control Over
Property
100.1.5.2 Robbery:
Taking Requires Defendant To Exercise Absolute Control Over The Property
100.1.6 Robbery: Defense Theory That The Defendant Did Not Cause Victim To Be Afraid
100.1.6.1 Robbery:
Lack Of Subjective Fear By Victim As Defense Theory
100.1.6.2 Robbery:
Victim's Fear Must Be Objectively Reasonable
100.1.6.3 Robbery:
Defense Theory That Victim's Fear Was Not Caused By The Defendant
100.1.6.4 Robbery:
No Robbery If Victim’s Fear Results From The Taking
100.1.7 Robbery: Defense Theory That The Victim Was Unaware Of The Taking
100.1.7.1 Robbery:
Taking From Intoxicated Victim
100.1.7.2 Sudden
Snatching Is Not Robbery Unless More Force Than Necessary For The Taking Was
Used
100.1.7.3 Robbery:
Victim's Unawareness Of The Taking As Defense Theory
100.1.8 Robbery: Lack Of Intent To Steal As Defense Theory
100.1.8.1 Robbery:
Intent To Permanently Deprive As Necessary Element
100.1.8.2 Taking
For Temporary Use Is Not Robbery
100.1.8.3 Larceny:
Taking In Jest As Defense Theory
100.1.9 Robbery: Defense Theory That The Intent To Steal Was Formed After The Taking And/Or The Application Of Force
100.1.9.1 Robbery:
Defense Theory That Intent To Steal Was Formed After Application Of Force
100.1.9.2 Robbery:
Intent Formed After Termination As Defense Theory To Accomplice Liability
100.1.9.3 Defense
Theory Based On Termination Of Felony: Both Accomplice Liability And Felony
Murder Liability Issues In Same Case
100.1.10 Robbery: Good Faith, Claim Of Right, Consent
100.1.10.1 Good
Faith Defenses
100.1.10.2
Robbery/Theft: Good Faith Belief In Consent
100.1.10.3
Applicability Of Claim Of Right To Robbery
100.1.11 Robbery: Duress, Coercion, Etc.
100.1.11.1
Robbery: Negation Of Felonious Intent By Duress
100.1.12 Robbery: Necessity, Choice Of Evils
100.1.12.1
Necessity As Defense To Robbery: Taking Property To Prevent Harm To Third Person
100.1.13 Robbery: Miscellaneous Defense Theories
100.1.13.1
Robbery: Lack Of Asportation As Defense Theory
100.1.13.2
Victim's Fear Must Be Known To The Defendant
100.1.13.3
Robbery: Defense Theory That Force Was Used After The Taking Was Complete
100.1.13.4
Attempted Robbery: Reconnoitering Is Insufficient
100.1.13.5
Attempted Robbery: Possession Of "Tools" Is Not Sufficient
100.1.13.6
Attempted Robbery: Assembling Disguises, Obtaining Weapons And
"Casing" A Bank Not Sufficient For Attempt
100.1.13.7
Voluntary Intoxication Not A Defense Theory To Federal Bank Robbery (18 USC
2113(a))
100.1.14 Robbery: Lesser Included Offenses
100.1.14.1 Assault
As Lesser Offense To Robbery
100.1.14.2 Theft
As Lesser Included Offense Of Robbery
100.1.14.3
Robbery: Theft As Lesser Included Offense When Loot Is Abandoned Before
Application Of Force Or Fear
100.1.14.4
Robbery: Carjacking As Included In Robbery
100.1.15 Robbery: Additional Defenses And Defense Theories
100.1.15.1
Robbery: Additional Defenses And Defense Theories
100.2 Carjacking
100.2.1 Carjacking: Links To Other Sources
100.2.1.2
Carjacking: Federal Circuit Model Instructions And Notes
100.2.2 Carjacking: Miscellaneous Issues
100.2.2.1
Carjacking: Force Requires More Than at Which Is Necessary To Accomplish The
Mere Seizing Of The Property
100.2.2.2
Carjacking: Element Of Fear
100.2.3 Carjacking: Defenses And Defense Theories
100.2.3.1
Carjacking: Lack Of Criminal Intent As Defense Theory
100.2.3.2
Carjacking: Defense Theory That Victim's Fear Was Not Objectively Reasonable
100.2.3.3
Carjacking: Defense Theory That Defendant Did Not Secure Dominion And Control
Over The Vehicle
100.2.3.4
Carjacking: Defense Theory That Taking Was Not In Victim's "Immediate
Presence"
100.2.3.5
Carjacking: Defense Theory That Victim Was Not Aware Of The Taking
100.2.3.6
Carjacking: Applicability Of Defenses To Robbery
100.2.3.7
Carjacking: Additional Defenses And Defense Theories
Chapter 101: Sex Crimes, Substantive Offenses
Sex Offenses: Introduction
101.1 Rape And Other Forcible Sex Crimes
101.1.1 Rape And Other Forcible Sex Crimes: Links To Other Sources
101.1.1.1 Rape And
Other Forcible Sex Crimes: Cross References And Research Notes
101.1.1.2 Rape And
Other Forcible Sex Crimes: Federal Circuit Model Instructions And Notes
101.1.2 Rape And Other Forcible Sex Crimes: Miscellaneous Issues
101.1.2.1 Sex
Crimes: Acting In Concert [Reserved]
101.1.2.2 Sex
Crimes Against Mentally Handicapped Or Incapacitated Person [Reserved]
101.1.2.3 Sex
Crimes: Ineffective Consent-- Requirement That Defendant Be Aware Of Victim’s
Mentally Defective Condition
101.1.2.4 Sex
Crimes Against Mentally Handicapped Or Incapacitated Person: Factors To Consider
101.1.2.5
Challenging Sex Offender Profile Evidence
101.1.3 Rape/Sex Crimes: Actual Consent As Defense Theory
101.1.3.1 Actual
Consent As Defense Theory: General Principles
101.1.3.2 Actual
Consent As Defense Theory: Prior Consensual Acts Between Defendant And Alleged
Victim
101.1.4 Sex Crimes: Good Faith Belief In Consent As Defense Theory
101.1.4.1 Good
Faith Belief In Consent: General Principles
101.1.4.2 Good
Faith Belief In Consent: Prior Consensual Acts Between Defendant And Alleged
Victim
101.1.4.3 Sex
Offenses: Good Faith Belief in Consent As Defense Theory -- Definition Of Good
Faith
101.1.4.4
Mistaken Belief In Consent: Whether Belief Must Be Reasonable
101.1.4.5
Mistaken Belief As To Consent -- Evidentiary Limitations
101.1.4.6
Mistaken Belief As To Effectiveness Of Consent
101.1.4.7 Assault
With Intent To Commit Rape Or Other Sex Crime: Good Faith Belief In Consent As
Defense Theory
101.1.5 Rape And Other Forcible Sex Crimes: Miscellaneous Defenses And Defense Theories
101.1.5.1 Sex
Crimes: Consent Induced By Fraud --Collateral Matter As Defense Theory
[Reserved]
101.1.5.2 Rape/Sex
Crimes: Belief In Consent As Defense Theory -- Evidence Necessary To Warrant
Instruction
101.1.5.3
Rape/Forcible Sex Crimes: Consent Or Belief In Consent As Defense Theory --
Prior Consensual Sexual Acts Between Defendant And Victim
101.1.5.4 Rape/Sex
Crimes: Defense Theory That Victim Was Not Alive
101.1.5.5 Rape/Sex
Crimes: Good Faith Belief That Victim Was Dead As Defense Theory
101.1.5.6 Rape/Sex
Crimes: Defense Theory Of Insufficient Force
101.1.5.7 Rape/Sex
Crimes: Defense Theory That Grabbing And Holding The Victim During The Sexual
Act Does Not Constitute "Force"
101.1.5.8 Rape/Sex
Crimes: Consideration Of Relative Age, Size and Strength Of The Parties
101.1.5.9
Rape/Forcible Sex Crime: Defense Theory That Force Cannot Be Based Solely On The
Victim’s Subjective Reaction
101.1.5.10
Rape/Sex Crimes: Defense Theory That Victim Was Not Of "Unsound Mind"
101.1.5.11
Rape/Sex Crimes: Defense Theory That Multiple Penetrations Were Not Separate
Offenses
101.1.5.12
Rape/Sex Crimes: Defense Of Entrapment
101.1.5.13
Penetration With Foreign Object: Defense Theory Of Double Jeopardy If
Preparatory To Intercourse
101.1.5.14
Rape/Sex Crimes: Impotence As Defense Theory
101.1.5.15 Assault
With Intent To Commit Rape Or Other Sex Crime: Good Faith Belief In Consent As
Defense Theory
101.1.5.16 Rape
And Other Forcible Sex Crimes: Additional Defenses And Defense Theories
101.2 Statutory Rape (Unlawful Sexual Intercourse)
101.2.1 Statutory Rape: Links To Other Sources [Reserved]
101.2.2 Statutory Rape: Miscellaneous Issues
101.2.2.1
Statutory Rape: General Principles
101.2.2.2 Minor
Not Criminally Liable As Accomplice To Statutory Rape
101.2.3 Statutory Rape: Defenses And Defense Theories
101.2.3.1
Statutory Rape/Unlawful Sexual Intercourse: Mistake Of Fact Regarding Victim's
Age As Defense Theory
101.2.3.2
Statutory Rape/Unlawful Sexual Intercourse: Additional Defenses And Defense
Theories
101.3 Consensual Sodomy
101.3.1 Consensual Sodomy: Links To Other Sources
101.3.1.1
Consensual Sodomy: Cross References And Research Notes [Reserved]
101.3.2 Consensual Sodomy: Miscellaneous Issues
101.3.2.1 Unlawful
Sodomy [Reserved]
101.3.3 Consensual Sodomy: Defenses And Defense Theories
101.3.3.1 Sodomy:
Consent As A Defense
101.3.3.2
Consensual Sodomy: Additional Defenses And Defense Theories
101.4 Sex Crimes, Children
101.4.1 Sex Crimes, Children: Links To Other Sources
101.4.1.1 Sex
Crimes, Children: Cross References And Research Notes
101.4.2 Sex Crimes, Children: Miscellaneous Issues
101.4.2.1
Continuous Sexual Abuse: Due Process Constitutional Challenge
101.4.2.2 Lewd Act
With Child: Requirement Of Physical Force
101.4.2.3 Lewd Act
With Child: Mistake of Age Defense Inapplicable
101.4.2.4 Lewd Act
With Child: Child Abuse Expert -- Limiting Instruction
101.4.2.5 Lewd Act
With Child: Repeat Offender Priors -- Stipulation Or Bifurcation
101.4.3 Sex Crimes, Children: Defenses And Defense Theories
101.4.3.1 Lewd Act
With Child: Constructive Touching -- Defense Theory That Defendant Did Not Have
The Required Intent
101.4.3.2 Lewd Act
With Child: Multiple Convictions -- Defense Theory That The Acts Were Not
Distinct, Completed Acts
101.4.3.3 Child
Molestations By One Minor On Another: Lack Of Intent As Defense Theory
101.4.3.4 Sexual
Molestation: Lack Of Concurrence Of Sexual Contact And Intent As Defense Theory
101.4.3.5 Multiple
Acts Of Child Molestation: Juror Unanimity
101.4.3.6
Continuous Sexual Abuse Of A Child -- Juror Unanimity Required As To Single
Victim When Charges Include Multiple Victims
101.4.3.7 Sex
Crimes Against Children: Additional Defenses And Defense Theories
101.4.3.8
Sexual Abuse Of Children: Defense Expert Regarding Problems With Children’s Claims Of Sexual Abuse -- Right To Present Defense
101.4.3.9 Sexual Assault Of Child: Expert Testimony That Charge Is Inconsistent With The Defendant’s Character Traits
101.5 Sexual Battery
101.5.1 Sexual Battery: Links To Other Sources
101.5.1.1 Sexual
Battery: Cross References And Research Notes
101.5.2 Sexual Battery: Miscellaneous Issues
101.5.2.1 Sexual
Battery: Requirement That Touching Was Against Victim's Will
101.5.3 Sexual Battery: Defenses And Defense Theories
101.5.3.1 Sexual
Battery: Applicability Of Defenses To Ordinary Battery
101.5.3.2 Sexual
Battery: Additional Defenses And Defense Theories
101.6 Indecent Exposure
101.6.1 Indecent Exposure: Links To Other Sources
101.6.1.1 Indecent
Exposure: Cross References And Research Notes [Reserved]
101.6.2 Indecent Exposure: Miscellaneous Issues [Reserved]
101.6.3 Indecent Exposure: Defenses And Defense Theories
101.6.3.1 Indecent
Exposure: Expectation Of Privacy As Defense
101.6.3.2 Indecent
Exposure: Additional Defenses And Defense Theories
101.7 Pornography/Obscenity
101.7.1 Pornography/Obscenity: Links To Other Sources
101.7.1.1 Child
Pornography: Cross References And Research Notes
101.7.1.2
Pornography/Obscenity: Federal Circuit Model Instructions And Notes
101.7.1.3 Child
Pornography: Defending Internet Child Pornography Cases
101.7.2 Pornography/Obscenity: Miscellaneous Issues
101.7.2.1 Child
Pornography: Mens Rea
101.7.2.2 Legal
Definition Of "Prurient Interest"
101.7.2.3
Unconstitutional To Equate Obscenity With Sexuality
101.7.2.4 Federal Internet Pornography Statute Held Not To Violate The First Amendment
101.7.3 Pornography/Obscenity: Defenses And Defense Theories
101.7.3.1
Possession Of Obscenity: Lack Of Knowledge As Defense Theory
101.7.3.2
Obscenity: Lack Of Criminal Mental State As Defense Theory
101.7.3.3
Pornography: Mistake Of Fact As To Age Of Victim
101.7.3.4
Pornography/Obscenity: Additional Defenses And Defense Theories
101.7.3.5 Defense
Theory That Profanity Is Not Obscenity
101.7.3.6 First
Amendment As Defense Theory To Pornography/Obscenity Offense
101.7.3.7 Ban On
"Virtual" Child Pornography Overbroad (18 USC 2256)
101.8 Prostitution And Pimping
101.8.1 Prostitution And Pimping: Links To Other Sources
101.8.1.1
Prostitution And Pimping: Cross References And Research Notes [Reserved]
101.8.1.2
Prostitution And Pimping: Federal Circuit Model Instructions And Notes
101.8.2 Prostitution And Pimping: Miscellaneous Issues
101.8.2.1
Loitering With Intent To Commit Prostitution: Constitutional Challenge
101.8.2.2
Prostitution: Equal Protection Challenge Based On Failure To Prosecute
"Johns"
101.8.3 Prostitution And Pimping: Defenses And Defense Theories
101.8.3.1
Pandering: Not Applicable To Payment Of Wages To Act Or Model For Film Or
Publication
101.8.3.2 Pimping
Or Pandering: Defined -- Inapplicable to Nude Modeling
101.8.3.3
Prostitution And Pimping: Additional Defenses And Defense Theories
Chapter 102: Sex Crimes, Special Sex Offender Punishment Laws
102.1 Sex Crimes, Special Sex Offender Punishment Laws: Links To Other Sources
102.1.1 Sex
Crimes, Special Sex Offender Punishment Laws: Cross References And Research
Notes [Reserved]
102.2 Sex Offender Registration: Miscellaneous Issues
102.2.1 Sex
Offender Registration: Due Process Attack On Notice
102.2.2 Sex
Offender Registration: Defendant May Have More Then One Residence – Notice Of
Duty To Register Both
102.2.3 Sex
Offender Registration: Habeas Corpus Review
102.2.4 Sex
Offender Registration: Constitutional Challenge
102.3 Sex Offender Registration: Defenses And Defense Theories
102.3.1 Defense
Theory That Abode Was Not Sufficiently Permanent To Trigger Registration
Requirement: Definition Of Residence
102.3.2 Sex
Offender Registration: Defense Theory That Defendant Did Not Know Of Duty To
Register
102.3.3 Defense
Theory That Failure To Provide Interpreter To Explain Duty To Register Violated
Due Process
102.3.4 Sex
Offender Registration: Elements
102.3.5 Sex
Offender Registration: Lack Of Knowledge As Defense Theory
102.3.6 Sex
Offender Registration: Lack Of Notice As Defense Theory
102.3.7 Sex
Offender Registration: Ex Post Facto Challenge
102.3.8 Sex Offender Registration: Requirement Of Mens Rea
102.4 Sexually Violent Predator: Miscellaneous Issues
102.4.1 Sexually
Violent Predator (SVP): Constitutional Challenge
102.4.2 Sexually
Violent Predator (SVP): Requirement Of Present Dangerousness
102.4.3 Sexually Violent Predator
(SVP): Overt Act Requirement
102.4.4 Sexually Violent Predator
(SVP): Successive SVP Proceedings
102.5 Sexually Violent Predator: Defenses And Defense Theories
102.5.1 Sexually
Violent Predator (SVP): Whether Prosecution Has The Burden Of Proof
102.5.2 Sexually
Violent Predator (SVP): Instruction On Consequences Of Finding
102.5.3 Sexually
Violent Predator (SVP): Definition Of Mental Disorder -- Requirement Of Serious
Difficulty In Controlling Behavior
102.5.4 Sexually Violent Predator
(SVP): Requires More Than Dangerousness -- Accused Must Have Serious Difficulty
In Controlling Behavior
Chapter 103: Theft/Larceny Based Crimes
103.1 Theft/Larceny By Taking
103.1.1 Theft/Larceny: Links To Other Sources
103.1.1.1
Theft/Larceny: Cross References And Research Notes
103.1.1.2
Theft/Larceny: Federal Circuit Model Instructions And Notes
103.1.2 Theft/Larceny: Miscellaneous Issues
103.1.2.1
Theft/Larceny: "Taking From The Person" Must Be From Immediate
Possession And Control
103.1.2.2 Theft Of
Spouse's Portion Of Community Property
103.1.2.3
Theft/Larceny: Taking By Partner Who Possessed An Undivided Interest Is Not
Larceny
103.1.2.4
Theft/Larceny: Taking Of Property Held As Security Where Lien Has Not Been
Perfected
103.1.2.5
Theft/Larceny: Not Applicable To Use Or Occupation Of Land
103.1.2.6 Failure
To Pay Use-Fee Is Not Larceny Or Theft
103.1.2.7
Theft/Larceny: Alternate Theory Of Theft Cannot Support Conviction Without
Instruction On That Theory
103.1.2.8 Multiple
Theft Convictions Improper Based On Multiple Takings During Single Course Of
Conduct
103.1.2.9
Theft/Larceny: Challenge To Use Of Defendant's Poverty Or Financial Condition As
Evidence Of Motive
103.1.2.10
Theft/Larceny, Retail: Intent To Defraud Defined
103.1.2.11
Theft/Larceny, Retail: "Stolen" Defined
103.1.2.12
Theft/Larceny, Retail: "False" Defined
103.1.2.13
Theft/Larceny, Retail: Definition Of “Corrupt”
103.1.2.14
Theft/Larceny: Definition Of Owner
103.1.2.15
Theft/Larceny: Use of the Term “Appropriates” May Be Unclear
103.1.2.16
Theft/Larceny: Requirement Of Asportation (“Carrying Away”)
103.1.2.17
Theft/Larceny With A Prior Conviction: Cautionary Instruction
103.1.3 Theft/Larceny: Defenses And Defense Theories
103.1.3.1 Claim Of
Right As Defense Theory To Theft/Larceny
103.1.3.2
Theft/Larceny: Claim Of Right On Behalf Of Another
103.1.3.3
Theft/Larceny: Consent As Defense Theory
103.1.3.4
Theft/Larceny: Good Faith Belief In Consent
103.1.3.5
Theft/Larceny: Temporarily Using Or Borrowing Property As Defense Theory
103.1.3.6
Theft/Larceny: Abandoned Property
103.1.3.7
Theft/Larceny: Lost Property
103.1.3.8 No
Theft/Larceny Where Property Was Lawfully Obtained And Intent To Steal Was
Formed Later
103.1.3.9
Theft/Larceny: Defense Theory That Property Had No Value
103.1.3.10
Theft/Larceny: Delivery Of Property By Mistake As Defense Theory
103.1.3.11
Theft/Larceny: From The Person -- Inapplicable To Property Obtained By Deception
103.1.3.12
Theft/Larceny: Defense Theory That Taking Was Not From The Possession Of Another
103.1.3.13
Theft/Larceny By Taking: Additional Defenses And Defense Theories
103.2 Theft/Larceny By False Pretenses
103.2.1 Theft/Larceny By False Pretenses: Links To Other Sources
103.2.1.1
Theft/Larceny, Retail: Cross References And Research Notes [Reserved]
103.2.1.2
Theft/Larceny, Retail: Federal Circuit Model Instructions And Notes
103.2.2 Theft/Larceny By False Pretenses: Miscellaneous Issues
103.2.2.1
Applicability Of Issues Relating To Theft/Larceny By Taking
103.2.3 Theft/Larceny By False Pretenses: Defenses And Defense Theories
103.2.3.1
Applicability Of Defense Theories Relating To Theft/Larceny By Taking
103.2.3.2 False
Pretenses: Knowledge Of Falsity Required
103.2.3.3
Larceny/Theft By False Pretenses: Victim Must Rely On False Pretense
103.2.3.4
Larceny/Theft By False Pretenses: Does Not Include Statements Which Are
Insignificant Or Unlikely To Deceive
103.2.3.5
Larceny/Theft By False Pretenses: Fraudulent Intent Must Be Present When The
False Pretenses Were Made
103.2.3.6
Larceny/Theft Of Real Property By False Pretenses: Requires False Representation
To The Owner
103.2.3.7
Theft/Larceny By False Pretenses: Additional Defenses And Defense Theories
103.3 Theft/Larceny, Auto Or Vehicular
103.3.1 Auto Theft/Larceny: Links To Other Sources
103.3.1.1 Auto
Theft/Larceny: Cross References And Research Notes [Reserved]
103.3.1.2 Auto
Theft/Larceny: Federal Circuit Model Instructions And Notes
103.3.2 Auto Theft/Larceny: Miscellaneous Issues
103.3.2.1
Applicability Of General Theft/Larceny Issues
103.3.2.2 Auto
Theft: Intent To Joyride Not Sufficient
103.3.2.3 Auto
Taking: No Conviction For Taking And Receiving The Same Vehicle
103.3.3 Auto Theft/Larceny: Defenses And Defense Theories
103.3.3.1
Applicability Of General Theft/Larceny Defenses
103.3.3.2 Defense
Theory That Taking Of Impounded Vehicle Is Not Theft/Larceny
103.3.3.3
Theft/Larceny, Auto: Additional Defenses And Defense Theories
103.3.4 Auto Theft/Larceny: Lesser Offenses
103.3.4.1
Joyriding As Lesser Included Of Vehicle Taking
103.4 Theft/Larceny, Retail
103.4.1 Retail Theft: Links To Other Sources
103.4.1.1
Theft/Larceny, Retail: Cross References And Research Notes [Reserved]
103.4.1.2
Theft/Larceny, Retail: Federal Circuit Model Instructions And Notes
103.4.2 Retail Theft: Miscellaneous Issues
103.4.2.1
Applicability Of General Theft/Larceny Issues
103.4.2.2 Retail
Theft: No Completed Theft When Store Personnel Consent To Taking Merchandise
Outside
103.4.3 Retail Theft: Defenses And Defense Theories
103.4.3.1
Applicability Of General Theft/Larceny Defenses
103.4.3.2 Retail
Theft: Taking For Purpose Of Obtaining Refund -- Lack Of Intent As Defense
Theory
103.4.3.3
Theft/Larceny, Retail: Additional Defenses And Defense Theories
103.5 Embezzlement
103.5.1 Embezzlement: Links To Other Sources
103.5.1.1
Embezzlement: Cross References And Research Notes
103.5.1.2
Embezzlement: Federal Circuit Model Instructions And Notes
103.5.2 Embezzlement: Miscellaneous Issues
103.5.2.1
Applicability Of Theft/Larceny Issues
103.5.2.2
Applicability Of Embezzlement To Real Property
103.5.3 Embezzlement Defenses And Defense Theories
103.5.3.1
Applicability Of Theft/Larceny Defenses
103.5.3.2
Embezzlement: Lack Of Knowledge That Appropriation Of Property Is Unauthorized
As Defense Theory
103.5.3.3
Embezzlement: Mistake To Negate Fraudulent Intent
103.5.3.4
Embezzlement: Mere Failure To Return Property Or Pay A Debt Not Sufficient
103.5.3.5
Embezzlement: Claim Of Right As Defense
103.5.3.6 Intent
To Repay Not A Defense To Embezzlement Or Misappropriation Of Funds
103.5.3.7
Embezzlement: Right To Instruction As To Defense Theory Of The Transaction
103.5.3.8
Embezzlement: Additional Defenses And Defense Theories
103.6 Possession Of Burglary Tools
103.6.1 Possession Of Burglary Tools: Links To Other Sources
103.6.1.1
Possession Of Burglary Tools: Cross References And Research Notes [Reserved]
103.6.2 Possession Of Burglary Tools: Miscellaneous Issues [Reserved]
103.6.3 Possession Of Burglary Tools: Defenses And Defense Theories
103.6.3.1
Possession Of Burglary Tools: Lack Of Intent To Enter A Building To Commit A
Felony As Defense Theory
103.6.3.2
Possession Of Burglary Tools: Additional Defenses And Defense Theories
103.7 Mail Theft And Mail Fraud
103.7.1 Mail Theft And Mail Fraud: Links To Other Sources
103.7.1.1 Mail
Theft And Mail Fraud: Cross References And Research Notes [Reserved]
103.7.1.2 Mail
Theft And Mail Fraud: Federal Circuit Model Instructions And Notes
103.7.1.3 Mail
Fraud (18 USC 1341): Venue
103.7.2 Mail Theft And Mail Fraud: Miscellaneous Issues
103.7.2.1 Mail
Theft And Mail Fraud: Applicability Of Theft/Larceny Issues
103.7.2.2 Mail
Theft: Misdelivered and Misaddressed Mail
103.7.2.3 Mail
Theft and Fraud: Whether Limited To State-Law Duties
103.7.2.4 Mail
Theft And Mail Fraud: Materiality Is An Element
103.7.3 Mail Theft And Mail Fraud: Defenses And Defense Theories
103.7.3.1 Mail
Theft And Mail Fraud: Applicability Of Theft/Larceny Defenses
103.7.3.2 Mail
Theft And Mail Fraud: Additional Defenses And Defense Theories
103.8 False Impersonation/False Identification
103.8.1 False Impersonation/False Identification: Links To Other Sources
103.8.1.1 False
Impersonation/False Identification: Cross References And Research Notes
[Reserved]
103.8.1.2 False
Impersonation/False Identification: Federal Circuit Model Instructions And Notes
103.8.2 False Impersonation/False Identification: Miscellaneous Issues [Reserved]
103.8.3 False Impersonation/False Identification: Defenses And Defense Theories
103.8.3.1 False
Identification To Police Officer: Inapplicable To Consensual Encounter
103.8.3.2 False
Impersonation/False Identification: Additional Defenses And Defense Theories
103.9 Bribery
103.9.1 Bribery: Links To Other Sources
103.9.1.1 Bribery:
Cross References And Research Notes
103.9.1.2 Bribery:
Federal Circuit Model Instructions And Notes
103.9.2 Bribery: Miscellaneous Issues [Reserved]
103.9.3 Bribery: Defenses And Defense Theories
103.9.3.1 Bribery
Of A Person In A Specific Position: Knowledge Of The Person's Position Required
103.9.3.2 Bribery:
Additional Defenses And Defense Theories
103.9.3.3 Bribery
Concerning Federal Program: Requirement Of Nexus Between Bribe Or Kickback And
Expenditure Of Federal Funds (18 USC 666(a)(1)(B))
103.10 Extortion
103.10.1 Extortion: Links To Other Sources
103.10.1.1
Extortion: Cross References And Research Notes
103.10.1.2
Extortion: Federal Circuit Model Instructions And Notes
103.10.2 Extortion: Miscellaneous Issues
103.10.2.1
Extortion By Public Officer: Requirement That The Person Actually Hold Public
Office -- False Pretense Insufficient
103.10.2.2 Claim
of Right Inapplicable To Extortion
103.10.3 Extortion: Defenses And Defense Theories
103.10.3.1
Extortion: Requirement Of Wrongful Intent
103.10.3.2
Extortion: Consent Of Victim As Element
103.10.3.3
Extortion: Additional Defenses And Defense Theories
103.10.3.4
Extortion: "Threat" As Used In Extortion Statute As Violation Of The
First Amendment
Chapter 104: Trespass
104.1 Trespass: Links To Other Sources
104.1.1 Trespass:
Cross References And Research Notes [Reserved]
104.2 Trespass: Miscellaneous Issues [Reserved]
104.3 Trespass: Defenses And Defense Theories
104.3.1 Trespass:
Defense Theory Of “Public Premises”
104.3.2 Trespass:
Claim Of Right As Defense Theory
104.3.3 Trespass:
Disputed Ownership Or Authorization As Defense Theory
104.3.4 Trespass:
Lack Of Entry
104.3.5 Trespass:
Consent
104.3.6 Trespass:
Necessity Or Emergency As Defense Theory
104.3.7 Defenses
To Trespass: Abandonment, Open To Public, Reasonable Belief In Consent
104.3.8 Trespass:
Applicability Of Burglary Defenses and Defense Theories
104.3.9 Trespass:
Additional Defenses And Defense Theories
Chapter 105: Vehicular Offenses (Excluding Drunk Driving And Vehicular Homicide)
105.1 Vehicular Flight From Officer
105.1.1 Vehicular Flight From Officer: Links To Other Sources
105.1.1.1
Vehicular Flight From Officer: Cross References And Research Notes
105.1.2 Vehicular Flight From Officer: Miscellaneous Issues
105.1.2.1 Willful
And Wanton Flight From A Peace Officer
105.1.2.2 Flight
From Pursuing Peace Officer Causing Death/Serious Bodily Injury
105.1.2.3
Vehicular Flight From Officer With Reckless Driving [Reserved]
105.1.2.4
Vehicular Flight From Officer: Failure To Instruct On Intent To Evade And
Distinctive Uniform As Reversible Error
105.1.3 Vehicular Flight From Officer: Defenses And Defense Theories
105.1.3.1
Vehicular Flight From Officer: Requirement That Officer Be In Uniform
105.1.3.2 Defense
Theory That Reasonable Person In Defendant's
105.1.3.3
Vehicular Flight From Officer: Defense Theory That Police Car Was Not
Distinctively “Marked" Motor Vehicle Beyond A Siren And Red Light
105.1.3.4
Vehicular Flight From Officer: Defense Theory That Defendant Was Unaware Officer
Wanted Him/Her To Stop
105.1.3.5
Vehicular Flight From Officer: Additional Defenses And Defense Theories
105.2 Hit And Run
105.2.1 Hit And Run: Links To Other Sources
105.2.1.1 Hit And
Run: Cross References And Research Notes
105.2.2 Hit And Run: Miscellaneous Issues
105.2.2.1 Whether
Hit And Run Is A Violation Of Privilege Against Self Incrimination
105.2.3 Hit And Run: Defenses And Defense Theories
105.2.3.1 Hit And
Run: Applicability Of Defense Theories Relating To Omission-To-Act Crimes
105.2.3.2 Hit and
Run: Defense Theory That Aid Was Being Adequately Provided By Another Or Was
Otherwise Not Necessary
105.2.3.3 Hit And
Run: Necessity/Choice Of Evils As Defense Theory
105.2.3.4 Hit And
Run: Inability To Render Aid As Defense Theory
105.2.3.5 Hit And
Run: Defense Theory That Defendant Had No Duty To Return To The Scene Of The
Accident To Render Aid
105.2.3.6 Hit And
Run: Lack Of Knowledge That Accident And/Or Injury Occurred As Defense Theory
105.2.3.7 Hit And
Run: Defense Theory That Defendant Was Not "Involved" In The Accident
105.2.3.8 Hit And
Run: Defense Theory That Duty To Supply Information Was Terminated When The
Other Party Left Scene Of Accident
105.2.3.9 Defense
Theory That The Injury Was Not Caused By The Defendant’s Failure To Comply
With The Hit And Run Statutes
105.2.3.10 Hit And
Run: Additional Defenses And Defense Theories
105.3 Driving And Traffic Violations
105.3.1 Driving And Traffic Violations: Links To Other Sources
105.3.1.1 Driving
And Traffic Violations: Cross References And Research Notes [Reserved]
105.3.2 Driving And Traffic Violations: Miscellaneous Issues
105.3.2.1 Reckless
Driving: Definition Of Wanton As Extreme Indifference To Human Life
105.3.3 Driving And Traffic Violations: Defenses And Defense Theories
105.3.3.1 Driving
With Suspended License: Duress/Coercion Or Necessity/Choice Of Evils As Defense
105.3.3.2
Speeding: Duress/Coercion Or Necessity/Choice Of Evils Necessity As Defense
105.3.3.3
Speeding: Unforeseen Occurrence Defense
105.3.3.4
Speeding: Justification As Defense Theory
105.3.3.5 Driving
And Traffic Violations: Additional Defenses And Defense Theories
105.4 Vehicular Homicide
105.4.1 Vehicular
Homicide: Cross References To Vehicular Homicide Issues And Instructions
105.5 Drunk Driving
105.5.1 Drunk
Driving: Cross References To Drunk Driving Issues And Instructions
Chapter 106: Weapons Or Firearms: Possession, Transportation, Etc.
106.1 Possession Or Transportation Of Weapons: Links To Other Sources
106.1.1 Possession
Or Transportation Of Weapons: Cross References And Research Notes
106.1.2 Possession
Or Transportation Of Weapons: Federal Circuit Model Instructions And Notes
106.2 Possession Or Transportation Of Weapons: Miscellaneous Issues
106.2.1 Possession
Of Illegal Weapons: Juror Unanimity
106.2.2 Possession
Of Weapons: Multiple Convictions
106.2.3 Possession
Of Weapon With Obliterated Serial Number: Presumption From Possession Violates
Due Process
106.2.4 Knowing
Transportation Of Firearms With Altered Serial Numbers (18 USC 922(k))
106.2.5 Possession
Of Weapon During Drug Offense: Requirement Of Instruction On Underlying Drug
Offense
106.3 Possession Of Weapons: Possession Issues
106.3.1 Possession
Issues In General
106.3.2 Possession
Of Weapons: Possession Issues
106.4 Weapons Or Firearms Possession: Defenses And Defense Theories
106.4.1 Momentary Or Innocent Possession As Defense Theory
106.4.1.1
Momentary Or Innocent Possession As Defense Theory
106.4.2 Unlawful Possession Of Weapon: Self Defense
106.4.2.1 Carrying
Concealed Weapon Without A License: Self Defense
106.4.3 Possession Of Weapons: Lack Of Knowledge As Defense Theory
106.4.3.1
Possession Of Weapons: Intoxication Or Mental Impairment May Negate Knowledge
106.4.3.2
Possession Of Weapons: Lack Of Knowledge Of Character Of The Weapon As Defense
Theory
106.4.3.3
Possession Of Assault Weapons: Knowledge Requirement
106.4.3.4 Dirk Or
Dagger: Lack Of Knowledge That The Instrument Was A Dirk Or Dagger As Defense
Theory [Reserved]
106.4.3.5 Lack Of
Knowledge That Numbers Were Altered As Defense Theory To Transportation of
Firearms with Altered Serial Numbers
106.4.3.6 Illegal
Possession Of Specified Deadly Weapons: Lack Of Knowledge As Affirmative Defense
106.4.3.7 Mistake
Of Fact As Defense To Possession Of Loaded Weapon
106.4.4 Dangerous Or Deadly Weapons: Defense Theory That Weapon Was Not Deadly Or Dangerous
106.4.4.1
Dangerous Or Deadly Weapon Defined: Federal Circuit Model Instructions And Notes
106.4.4.2
Dangerous Or Deadly Weapon Defined: Defense Theory That Victim's Reaction
Permits Inference That Weapon Was Not Dangerous Or Deadly
106.4.4.3
Dangerous Or Deadly Weapon Defined: Defense Theory That Manner Of Use Permits
Inference That Weapon Was Not Dangerous Or Deadly
106.4.4.4
Determination Of Deadly Weapon: Two-Pronged Jury Finding Required
106.4.4.5 Vehicle
As Deadly Weapon: Defense Theory That Defendant Did Not Intend To Use The
Vehicle As A Weapon
106.4.4.6 Deadly
Weapon Defined: Defense Theory That Firearm Was Not Operable
106.4.4.7 Deadly
Weapon Defined: Defense Theory That Weapon Was Unloaded
106.4.4.8 Use Of
Deadly Or Dangerous Weapon: Starter Pistol Not Sufficient
106.4.4. 9
Victim's Apprehension Insufficient To Prove That Weapon Was Dangerous
106.4.4.10
Victim's Belief May Be Relevant To Use Of Weapon But Weapon Must Be Present
106.4.4.11
Dangerous Or Deadly Weapon Defined: Consideration Of Manner Of Use And Overall
Circumstances
106.4.4.12
Dangerous Or Deadly Weapon: Object Or Instrumentality Not Controlled By The
Defendant
106.4.4.13
Dangerous Or Deadly Weapon: Whether Bare Hands Are A Deadly Weapon
106.4.4.14
Dangerous Or Deadly Weapon: Jury Should Determine
106.4.5 Concealed Weapon: Defense Theory That Weapon Was Not Concealed
106.4.5.1
Concealed Weapon In Vehicle: Weapon Must Be Concealed Within The Vehicle
106.4.5.2
Concealed Weapon: Defense Theory That Weapon Wasn't Concealed In Person's
Clothing, Purse, Briefcase, Etc.
106.4.5.3
Concealed Weapon: Defense Theory That Weapon Was Discernable By Ordinary
Observation
106.4.6 Weapons Or Firearms: Possession/Armed With Additional Defenses And Defense Theories
106.4.6.1 Unlawful
Possession Of Weapon: Duress Or Necessity Defense
106.4.6.2 Weapons
Or Firearms: Possession/Armed With: Additional Defenses And Defense Theories
Chapter 107: Weapons Or Firearms: Exfelon In Possession Of Firearm
107.1 Exfelon In Possession Of Firearm: Links To Other Sources
107.1.1 Exfelon In
Possession Of Firearm: Cross References And Research Notes
107.1.2 Exfelon In
Possession Of Firearm: Federal Circuit Model Instructions And Notes
107.2 Exfelon In Possession Of Firearm: Miscellaneous Issues
107.2.1 Exfelon In
Possession Of Firearm: Possession Issues
107.2.2 Exfelon In
Possession Of Firearm: Juror Unanimity
107.2.3 Multiple
Possessions Of Firearm By Exfelon
107.2.4 Refusal Of
Stipulation To Exfelon/Misdemeanant Status As Due Process Violation
107.2.5 Exfelon In
Possession Of Firearm: No Speculation About Nature Of Prior Felony Where
Stipulated
107.2.6
Stipulation Removing Prior Felony From Jury
107.2.7 Exfelon In
Possession Of Firearm: Due Process Requires Sua Sponte Instruction Regarding
Stipulation Of Underlying Felony
107.2.8 Exfelon In
Possession Of Firearm: Definition Of "Control"
107.2.9 Pinkerton
Theory Insufficient To Support Ex-Felon In Possession Of Firearm Charge
107.3 Exfelon In Possession Of Firearm: Defenses And Defense Theories
107.3.1 Exfelon In
Possession Of Firearm: Lack Of Knowledge Or Intent As Defense Theory
107.3.2 Exfelon In
Possession Of Firearm: Intoxication Or Mental Impairment May Negate Knowledge Of
Weapon's Presence
107.3.3 Exfelon:
Carrying Firearm -- Applicability Of Momentary, Innocent And Justifiable
Possession
107.3.4 Possession
Of Firearm By Exfelon: Mistake Of Fact Regarding Exfelon Status As Defense
Theory
107.3.5 Exfelon In
Possession Of Firearm: Mistake As To Possession As Defense Theory
107.3.6 Exfelon
In Possession Of Firearm: Justification As Defense
107.3.7 Self
Defense By Exfelon: General Principles
107.3.8
Restoration Of Civil Rights To Possess Firearm As Defense Theory
107.3.9 Exfelon In
Possession Of Firearm: Additional Defenses And Defense Theories
Chapter 108: Miscellaneous Offenses
108.1 Accessory After The Fact
Chapter 109-114: [Reserved]