CRIMINAL LAW OUTLINE

I. Elements of Criminal Conduct

A.Conduct (Actus Reus)-- Cogitationis poenam nemo patitur--"no one is punishable solely for his
thoughts"
1. Voluntary Action Requirement (182-192)can be divided into separate components
Acta bodily movement or muscular contraction
o Bodily movement can occur without there being a real act---someone moves your arm
for you
o Does NOT apply to the results of the bodily movement
VoluntaryD possess sufficient free will to be blamed for her conduct
Common Law Principle---There must be some kind of voluntary movement that forms part of
the basis of criminal liability
o Every element of the criminal activity does NOT have to be voluntary
Prosecution carries the burden of proof since the voluntariness is an element to every crime not
an affirmative defense
Involuntary Act vs. DuressAct done under duress is not involuntary although it may form a
defense to the act
Although rarely written into a statute, many courts consider the Voluntary Act Requirement as
implicit
o Martin v. State (1944)Police arrested D in his home and then took him out onto the
highway where he used loud and profane language since he was drunk; Court reversed
conviction for being drunk in public---Statute did not explicitly list a voluntary act
requirement but the Court assumed one
o Rule: A defendant must voluntarily perform the physical act for each element of a
crime that has an actus reus component
MPC ( 2.01) p.1081A person is not guilty of an offense unless his liability is based on
conduct which includes a voluntary act
o Act is a bodily movement whether voluntary or involuntary
o Does not define voluntary but lists the following involuntary acts---reflex, convulsion,
bodily movement while asleep or unconscious, conduct during hypnosis, bodily
movement otherwise is not a product of the effort or determination of the actor, either
conscious or habitual
o (4)Possession is an act if possessor knowingly received or procured the thing
possessed or was aware of his control thereof for a sufficient period to have been able
to terminate his possession
People v. Newton (1970)D is shot by a police officer during an altercation; D claims he went
unconscious and then shot and killed the police officer
o Court ruled that lack of consciousness is a complete defense to criminal homicide
o Rule: When a person commits an act that is criminal if done voluntarily, lack of
consciousness is a complete defense (MPC 2.01(2))
People v. Decina---epileptic seizure is not a voluntary act but the D still held liable for criminal
negligence since he knew about his tendency to have seizures
Policy
o Deterrence---cannot deter involuntary acts

o
o

Rehabilitationcant rehabilitate someone who committed an involuntary act

Retribution/FairnessD not morally culpable for involuntary act

2. Liability for Omission

a. Basic Doctrine (pp. 192-202)
Voluntary requirement for omissions is the same as for act
Fundamental Principle for Distinguishing Act from Omission---Acts interfere with the ongoing
causal processes; Would the harm have occurred if the Defendant had not existed?---if yes, then
omission; if no, then act
Basic Rule for Omissionsno criminal liability for omissions UNLESS legal duty to act
o What makes it an omission does not hinge on whether there was a legal duty or not;
rather, the presence of a legal duty only plays a role in determining whether there is
criminal liability
MPC Elements of Omission ( 2.01(3)) p.1081D under a legal duty to act, D had requisite
knowledge, and it was possible for D to act
Sources of legal dutystatutes, contracts, certain relationships, begins to provide aid and
thereby deterring others from doing so, one who creates the peril
o Jones v. United States (1962)D convicted of involuntary manslaughter for the death of
child living with the D; unsettled whether the mother also lived in the house and
whether the mother paid D to care for the child; trial judge did not instruct jury that in
order to convict D, jury had to find that there was a legal duty to care for the child
Court overturned the conviction b/c jury must find that there is a legal duty
before a D can be liable for an omission---remanded for finding on this fact
State had a statute enumerating certain situations where had to intervene but
Pope was not included
Rule: One of the elements of an omission crime a judge must find to have
existed in order to find the D guilty is that there was a legal duty of care owed
the victim by the D
Rule Restated: Even if you satisfy all elements of a crime, but if you satisfy
them by virtue of an omission, then you are not guilty unless there is a legal
duty to act
o Pope v. State (1979)D took in mentally ill mother and the mothers child; during a
frenzy and in the presence of D, the mother beat the child; later that evening, the child
died and D was convicted of child abuse
Court overturned the conviction b/c D was not responsible for the child since
the mother was presentshows reluctance of courts to impose criminal liability
for an omission
State had a statute with enumerated relationships where there was a duty to
act---D did not fall in one of the categories
Rule: The common law rule of the US does not impose a duty to take
affirmative action upon bystanders in emergency situations if they do not
have a legal duty
Limited number of jurisdictions have statutory duties to rescueviolation of the duty to rescue
is only a misdemeanor or petty misdemeanor
o Minnesota, Rhode Island, Vermontcriminal offense to refuse to render aid to a person
in peril

Florida, Hawaii, Wisconsinnot triggered by natural disasters, only when person is

victim of a crime
Why are Courts so unwilling to impose liability in situations like the one in Pope?
o Individuals may have a genuine fear for their own safety
o Privacy concerns specific to sexual crimeslimited to a specific type of crime
o Difficult to draw lines---how far does one person have to go to aid another
o Freedom of action---individuals should be allowed to behave in accordance w/their own
business w/o fear of criminal prosecution
o Want people to voluntarily assume care of those in needwhich the imposition of
criminal liability for omissions would deter
o Overwhelm the victims with people trying to help them---suspect argument
Misprision---common law offense abolished in England in 1967 which requires reporting of a
crime
o Congress enacted law that makes active concealment of a known felony rather than
mere failing to report
o All American jurisdictions have laws requiring members of certain designated
professions to report suspected cases of child abuse
b. Status Relationships and the problem of distinguishing omissions from acts (202-212)
Certain status relationships can create a duty to act
Family Members---parents to child; sometimes spouses to each other
De Facto Family Members
o People v. Beardsley (1907)man having affair w/ woman when she ODs; D fails to call a
physician to help and the victim dies; D convicted of manslaughter but the Court
overturned claiming there was no legal duty on part of D even if a moral one existed
o People v. Carroll (1999)stepmother convicted after failing to prevent husband from
killing his daughter; Court reasoned that such an expansion of legal duty to children was
reflective of modern familial circumstances
o State v. Miranda (2005)Court does not extend liability to a live-in boyfriend---reasons
that such extension would discourage people from trying to help for fear of criminal
liability and that it would give prosecutors too much power in plea negotiations
When Parent is the victimrather than just the child
o Commonwealth v. Caldwell (1986)mother convicted after childs stepfather sexually
abused the child and the mother knew; Child testified that mother was also beaten and
scared of her husband; Court upheld conviction even though mother was also a victim
When your actions cause peril to another---similar to tort law---there is a duty to rescue
Possession
o MPC 2.01(4)p. 1081possession satisfies the actus reus requirement when the
accused was aware of his control of the thing possessed for a sufficient period to have
been able to terminate his possession
o Not all jurisdictions follow this line of reasoning though
Exception: State v. Bradshaw (2004)---commercial truck driver crosses Canadian
border into Washington with 77 lbs of marijuana; No evidence that the trucker
was aware that the drugs were hidden in his truck; Washington Supreme Court
upheld conviction for possession of illegal drugs rejecting argument that
awareness is inherent in concept of possessing an item
Omissions vs. Acts

Barber v. Superior Court (1983)Patient had a heart attack and after consulting w/ his family,
physicians removed life support since patient was in a vegetative state; Doctors prosecuted for
homicide
o Court said this was comparable to manually administered medication or injection so the
conduct by the doctors should be considered an omission rather than an act
o Since court decided conduct was an omission rather than an act, they had to determine
whether a duty existed---determined that once family declared their wishes, physician
had no duty to continue treatment once it has proved to be ineffective
o Rule: Removal of life support equipment from a comatose patient who is unlikely to
recover is not an affirmative act, but an omission that, if in accord w/ the patients or
surrogates wishes, does not give rise to criminal liability b/c there is no legal duty to act
Airedale NHS Trust v. Bland (1993)House of Lords held that withholding feeding tubes and
antibiotic drugs from an insensate patient is lawful
o Distinction b/t withholding life support and administering lethal drugs/euthanasia
o Discontinuance of life support may be consistent w/ doctors duty to care for his
patient, if does not, for reasons of policy, consider that it forms any part of his duty to
give his patient a lethal injection
Robertsonassisted suicide is as constitutionally protected as rejecting life-sustaining
medication
Scalialegislature may regulate treatment as freely as it may regulate conventional suicide

B. Mental States (Mens Rea)

Mens Rea element establishes what the D must have been thinking at the time the act was
committed for criminal liability to attach. There is no single criminal intent; the intent
required for each crime ordinarily is part of the definition of that crime and may vary w/ regard
to the different elements of the crime
1. Old-Fashioned Generalized Mens Rea (p.213-222)
Mens Rea Analyses
o Maliceusually defined as requiring the commission of a volitional act w/o legal
excuse or justification. Ill will or hatred need not be shown
Default ruleabsent clear indications to the contrary, courts will interpret
malice to require that the D was aware his actions posed a substantial risk of
causing the prohibited harm
Regina v. Cunningham (1957)D enters cellar of an apt. and wrenches gas
meter from the gas pipes and steals it. Although could have turned the gas off,
he does not and gas seeps into wall of the cellar and harms 3rd party. No
evidence D knew the victim was in the house or that D wanted to harm victim
Criminal statute required that D maliciously administer or cause to be
administered poison and trial judge told jury that malice meant wicked
Appellate court overturned and said that malice meant that the D knew
of the risk and disregarded it (modern day recklessness)
o General Intent
Common Lawany offense for which the only mens rea required was a
blameworthy state of mind
Modern Lawawareness of the attendant circumstances need not be proved;
some lesser mental state such as recklessness or negligence will suffice

Volitional doing of an unlawful act; D must have intended to commit the act
constituting the crime (i.e. trespass)
Ex. Batteryintentional application of unlawful force upon anotherdefinition
does not contain specific intent so it is general intent
o Specific Intent
One Use of the Term: Actions must be done with some specified further
purpose in mind
Ex. Burglarly requires that a person break and enter not simply
knowingly or purposely (that would be general) but w/ further objective
of committing a felony inside
Another Use: D must have actual knowledge of some particular fact or
circumstance
Ex. Bigamymay intentionally marry someone (general intent) but also
must have knowledge of attendant circumstances (specific intent)
Regina v. Faulkner (1877)D goes to hold of a ship to steal rum and lights a
match to see causing boat to burn; charged with violating Malicious Damages
ActTrial court said that any bad mens rea would be sufficient for criminal
liability
Court overturned and said that D could not be convicted merely b/c he
was committing a felony when the event happened
Rule: One who is engaged in the commission of a felony is not criminally
liable for every result thereby, unless it is a probable consequence of his
act or such that he could have reasonably foreseen or intended it
o Willfully, Deliberately, Feloniously
Usually equitable w/ general intent
MPC 2.02 (8) p. 1082willfulness satisfied by acting knowingly
Traditional understandings of negligence
State v. Hazelwood (1997)D was the captain of the oil tanker Exxon Valdez and ran his ship
into a reef causing extensive ecological damage; trial court convicted him under a statute that
proscribed negligent conduct as a misdemeanor; Trial court applied and Alaskan Supreme Court
upheld use of a tort standard of negligence consisting of failing to perceive an unjustifiable risk
and in doing so deviating from the standard of care of a reasonable person
o Dissent---civil standard would not allow punitive damages to be awarded so it is unfair
to allow possible imprisonment on the same standard
Santillanes v. New Mexico (1993)D cut his nephews neck with a knife during altercation and
the trial court found him guilty of child abuse when statute required negligence based on tort
standard of negligence
o Court overturned and said criminal negligence standard was appropriatefailure to
perceive the risk must constitute a gross deviation from standard of care of a reasonable
person
2. Introduction to the MPC Approach to Mens Rea (p.222-233)
MPC attempts to mitigate problems in the common law in 3 ways:
o Eliminate general and specific intentreplaces w/ 4 mental states
o Provides clear definitions for all mental states
o Provides rules of interpretations (default rules) to be applied when a statute is silent
regarding mens rea
4 Mental States MPC 2.02 (2) p.1082purpose, knowledge, recklessness, negligence

PurposeA person acts purposely w/ respect to a material element of an offense when:

If the element involves the nature of his conduct or a result thereof, it is his
conscious object to engage in conduct of that nature or to cause such a result;
and
If the element involves attendant circumstances, he is aware of the existence of
such circumstances or he believes or hopes that they exist
Conscious object to perform an action of that nature or to cause such a
result
NOTE: Hoping w/ regards to circumstances is sufficient to establish
purpose
o KnowledgeA person acts knowingly w/ respect to a material element of an offense
when:
If the element involves the nature of his conduct or the attendant circumstances,
he is aware that his conduct is of that nature or that such circumstances exist;
and
If the element involves a result of his conduct, he is aware that it is practically
certain that his conduct will cause such a result
Knowledge that the requisite external circumstances exist
o RecklessnessA person acts recklessly w/ respect to a material elements of an offense
when he consciously disregards a substantial and unjustifiable risk that the material
element exists or will result from his conduct. The risk must be of such a nature and
degree that, considering the nature and purpose of the actors conduct and the
circumstances known to him, its disregard involves a gross deviation from the standard
of conduct that a law-abiding person would observe
Involves conscious risk creation
Risk must substantial and unjustifiable
o NegligenceA person acts negligently w/ respect to a material element of an offense
when he should be aware of a substantial and unjustifiable risk that the material
element exists or will result from his conduct. The risk must be of such a nature and
degree that the actors failure to perceive it, considering the nature and purpose of his
conduct and the circumstances known to him, involves a gross deviation from the
standard of care that a reasonable person would observe in the actors situation
Person inadvertently creates a substantial and unjustifiable risk of which he
ought to be aware
Does not involve a state of awareness
MPC 2.02 (3)p.1082--If the Statute is silent with respect to the level of culpability required,
then recklessness (or purpose or knowledge) is the default level of culpability
MPC 2.20 (4)p.1082When the law defining an offense prescribes the kind of culpability that
is sufficient for the commission of an offense, without distinguishing among the material
elements thereof, such provision shall apply to all the material elements of the offense, unless a
contrary purpose plainly appears
MPC 2.20 (6)p.1082When a particular purpose is an element of an offense, the element is
established although such purpose is conditional, unless the condition negative the harm or evil
sought to be prevented by the law defining the offense
Method under the MPC
Determine material elementstypically defined in statute
Divide definition into three things---conduct, circumstance, results

Determine which type of Mens Rea is required for each element

United States v. Jewell (1976)D convicted of carrying marijuana across the border in a secret
compartment of his car; D claims he was unaware of the presence of marijuana but there is
evidence that he deliberately avoided acquiring positive knowledge of the presence of drugs in
his vehicle
o Court holds that willful ignorance of a fact is enough to constitute knowingly
o Rule: The knowledge element of a crime does not require actual positive knowledge,
but only requires the defendant to have had an awareness of a high probability of the
fact of which knowledge is required
o DissentThree problems with jury instruction given
Failed to mention requirement of high probability that substance in the car
Did not say that D cant be convicted if he actually believed there was no
substance in the car
Does not provide that true ignorance, even if unreasonable cannot establish
criminal liability
o MPC 2.02 (7)When knowledge is an element of an offense, such knowledge is
established if a person is aware of a high probability of its existence, unless he actually
believe that it does not exist
Modern jury instructions for most Federal Courts on Willful blindness not given to jury unless:
o D was subjectively aware of a high probability of illegal conduct
o D purposefully contrived to avoid learning of the illegal conduct
Recklessness---natural reading says that D has to be aware of a substantial and unjustifiable risk
o What if the Defendant subjectively thinks
o Objective Elementmust be gross deviation from standard of care for reasonable
person
Concurrence of Actus Reus and Mens Rea

Purposely

Conduct
Conscious objective
to engage in act

Knowingly

Aware that conduct is

illegal

Recklessness

Requires awareness
of a risk and
conscious disregard of
it
When inadvertently
creates substantial
and unjustifiable risk
of which he ought to
have been aware

Negligently

C. Mens Rea Nuances

Circumstances
Knowledge of
circumstances
required
Knowledge of
circumstances
required

Consciously
disregards
substantial and
unjustifiable risk
Same

Result
Conscious
objective to cause
the harm
Aware that illegal
result is
practically
certain to follow
from conduct
Consciously
disregards
substantial and
unjustifiable risk
Same

Standard
Subjective

Subjective

Subjective/Objective

Objective

1. Mistake of Fact (p. 234-248)

Definition---mistake of fact occurs when what D did was in violation of the law, but D was
mistaken about facts: if the facts were as he believed them to be, then what he was doing would
not have violated the law
o Whether you are right or wrong about something does not hinge on a legal matter
Mistakes of Fact will prevent criminal liability if it shows the D lacked a mental state essential to
the crime charged
Mistake of Fact is ordinarily no defense to a strict liability crime
Four Approaches to Mistake Theory
(1) Traditional/common lawreasonable mistake of fact that negates mens reas is a defense to
a general intent crime
o Any mistake of law that negates specific intent is a defense to a specific intent crime
(2) Moral Wrong or Lesser Wrong Doctrine (Prince Case)
o If D has done something morally wrong based on facts as D believed them to be, then D
has no defense
o Generalized Mens Rea Requiredif you have a bad mindset, not necessarily related to
the specific crime or statute, you can be guilty of the crime
o Reasonableness is not a defense
o Regina v. Prince (1875)D convicted under criminal statute making it a crime to
unlawfully take or cause to be taken any unmarried girl, being under the age of 16, out
of the possession and against the will of the father and mothershall be guilty of a
misdemeanor. Jury found that Girl told D she was 18, D believed her, and his belief
was reasonable
Court upheld the conviction b/c D was still doing something bad so court isnt
going to let him offCourt does say that against will of father and mother
requires knowledge though
If he thought he had the fathers permission, then no liability---since he
knew here that he didnt have the fathers permission, his act was
wrong regardless of his belief about her age
DissentDistinction should be made b/t a mistake of fact which means that the
conduct you engaged in is actually more illegal in which case you should still
be guilty VS a mistake of fact that makes conduct you thought was legal is
actually illegal in which case not guilty
o Problems with this Doctrine:
Consensus on moral wrongness
Violates Legality Doctrineconflate immoral and illegal by making certain acts
illegal that the legislature did not make illegal
Ignores degrees of culpability
o Still survives in Statutory rape cases: In some states, reasonable mistake about a girls
age is NOT a defense for statutory rape
(3) Legal wrong or lesser crime doctrine (i.e. Legality Doctrine)
o If D has done something illegal based on facts way D believed them to be, then D has no
defense
o Generalized mens rea required

o
o

Reasonableness is not a defense

Example: D thinks he is selling pot, but is actually selling cocaine (Result: D is guilty of
selling cocaine)
(4) MPC Approach-- 2.04 p. 1083
o Ignorance or mistake as to a matter of fact or law is a defense if:
Ignorance/mistake negatives the purpose, knowledge, belief, recklessness or
negligence required to establish a material element of the offense OR
The law provides that the state of mind established by such ignorance or
mistake constitutes a defense
o Defense not available if the D would be guilty of another offense had the situation been
as he supposed---ignorance/mistake shall reduce the grade and degree of the offense of
which he may be convicted to the offense of which he would be guilty had the situation
been as he supposed
Reasonable mistake of fact, that if true would still not make the actors conduct legal, is not a
valid affirmative defense against the crime actually committed
o People v. Olsen (1984)D is convicted of child molestation on a victim who is only 13
years and 10 months old. D claimed that he did not break into the trailer and that the
sex was consensual and girl said she was 16. Court upheld conviction despite a mistake
of age for 4 reasons
Statute makes clear that didnt intend for reasonable mistake to be a defense
Public policy to protect young children
Lesser crime argument---mistake of fact relating to the gravity of an offense will
not shield deliberate defender from full consequences of the wrong actually
committed---assumes that D would guilty of statutory rape even if girl was over
14 as D believed
Severity of punishment
o NOTE: CA, unlike most states, crime of statutory rape allows reasonable mistake of age
as a defense but for more serious offense of child molestation, no mistake of age
defense
B v. Director of Public Prosecutionsoverruled the Prince case in England
Garnett v. State (1993)D is 20 years old but due to a low IQ he interacts socially at the level of
a 12 year old. Convicted of statutory rape of a 13 yr old girl who told him she was 16; Court did
not allow evidence by D that she was 16 thus making his mistake reasonable and trial court
convicted D---Appellate court upheld since the statute made no allowance for mistake of age
defense
Statutory Rape---traditional insistence on imposing strict liability for mistakes about age
beginning to erode especially for victims over 14 or when victim and D are close in age
o MPCallows a defense for an honest mistake whether or not reasonable but strict
liability for sexual offense against child below 10 years of age

2. Strict Liability (p. 248-257)

Liability imposed w/o any demonstrated culpability, not even negligence
If a mistake of fact is not an adequate defense, then you would classify it as strict liability
Traditional
o Public Welfare Offensesanti-pollution laws, traffic, regulations, food and drug laws
Morisette Factors
Not derived from common law; recently created

Lack of stigma
Relatively lower penalties
D could usually prevent w/ reasonable care
o Non-Public Welfare offenses: statutory rape, bigamy
Developed from common law
Significant stigmatization
High penalties
Conduct malum in se (bad in itself)
United States v. Balint (1922)D indicted for selling derivative of opium and coca leaves w/o
required order forms; Ds demurred due to failure to charge that they knew they were selling
prohibited drugs (didnt know there was opium derivatives in the drug he was selling)
o Court held that proof of knowledge was not required by the statute b/c there is no mens
rea language in the statute and the intent of the legislature was to create a strict liability
statute---Congress weighed the danger of convicting innocent sellers against innocent
buyers unknowingly buying dangerous drugs and decided strict liability appropriate
United States v. Dotterweich (1943)D convicted of mislabeling products even though no
evidence of mens rea b/c the statute did not require mens rea; similar language regarding the
weighing of the costs and benefits of applying strict liability
Rule: Failure by the legislature to include the mens rea in criminal statutes that is normally
required at common law does not mean that the crime is strict liability; such statutes will be
interpreted to require the mens rea of such crimes required at common law. If a crime normally
required intent under the common law, but as codified does not expressly include that
requirement, a criminal D cannot be proven guilty w/o proving intent
o Morissette v. United States (1952)D retrieved spent bomb casing from Air Force
bombing range and sold them for profit; D charged w/ converting govt property and
defended by saying that he thought the shells were abandoned. Trial judge rejected
defense on claim that question of intent is whether or not he intended to take the
property D convicted of knowingly converting govt property.
Court reversed holding that a mere omission in the statute of any mention of
intent will not be construed as eliminating that element from the crimes
denounced
Rule: A criminal statute written w/o a mens rea requirement will construed in light of the
background of the common law for such crimes to include a mens rea requirement unless there
is an explicit indication that the legislature intended there to be no such requirement
o United States v. Staples (1994)D convicted under National Firearms Act for possessing
an unregistered firearm defined by the act. The gun was capable of firing automatically
due to a metal part which usually prevents the weapon from firing automatically being
finled down. D said he didnt know that the weapon fired automatically and that the
weapon had never fired automatically when he used it. Statute is silent regarding mens
reas for the violation. D convicted over his request that the jury be instructed that he
must know that the gun would fire automatically
Court found that it could not have been Congress intent to make this a strict
liability offense due to the extreme penalty and the history of gun usage in the
US
For felonies, Court will not assume Congress intended to apply strict
liability unless specifically stated
Concurrence---Statute requires knowledge that he possessed not simply a gun,
but a machine gun

Identifying Strict Liability Crimes

o Whether a crime imposes strict liability is a question of legislative intentIntent will be
found in:
Crime is a new statutory offense
Purpose to protect public health rather than particular persons rights
Crime is part of a regulatory scheme
Crime imposes a relatively light penalty
Requiring proof of mens rea would impede implementation of the legislative
purpose---similar to a Res Ipsa idea
Malum Prohibitum
Public Welfare/Regulatory offenses are likely to be strict liability crimes (Under Prince case,
regulatory offenses should not be strict liability b/c they are not moral wrongs or malum in se)
o These laws are recently created
o Lack of stigma
o Laws designed to protect health and safety therefore not as concerned w/ culpability
o Lower penalties
o D could usually prevent w/ reasonable care
Justifications for Strict Liability:
o Prosecution can be trusted to bring only egregious cases
Why would this not apply to any crime, let alone strict liability crimes
o Whatever Ds intent, the injury is the same
Bad Argumentwould mean accidental killings=murder
o Small Penalties and small stigmatization
But why not use civil penalties b/c some of these punishments can be stiff
o Not really unfair b/c Ds do not have to commit acts to begin with:
Only careful people will stay away from these activities; could restrict certain
essential activities
MPC 2.05 p.1085---Dont have to have mens rea for violations and offenses defined by
statutes other than MPC, if the Congress explicitly states that there should be strict liability,
then there can be strict liability but it shouldnt be inferred
Guminga--No vicarious liability for strict liability crimes that impose imprisonment
United States v. X-Citement
o Majority---said that knowing only applied to the first requirement
o Scalia---said strict liability
3. Mistake of Law
a. Basic Doctrine that Knowledge of the Law is not Required for Criminal Liability (267-277)
Traditional Common Law Ruleignorantia legis neminem excusatignorance of the law
excuses no one
**Pure Mistake of LawD has requisite mens rea but believed his conduct was not prohibited
MPC 2.02 (9) p.1083codifies common lawignorance of law is not an excuse unless defined
by the statute
Reliance on statute or case---D acted in good faith reliance on a statute making her conduct
permissible, D can assert a defense even though the statute is later held invalid. Similar reliance
on a judicial decision precludes a conviction
People v. Marrero (1987)D, correctional officer at a Federal penitentiary, is arrested for
carrying a loaded pistol in a nightclub; violation of PC that said that peace officers were

exempt; trial court dismissed based on this defense but Appellate court said he wasnt a peace
officer and remanded; then trial court convicted D.
o Court upheld the conviction claiming that an erroneous interpretation of the law (i.e.
reading statute for yourself; an interpretation that is not official) does not excuse
violation of the law, even where the interpretation is reasonable---Policy reason of not
allowing for Ds to claim they misread the statute
o MPC 2.04 p.1083only allows for mistake of law defense where the D relies on an
official statement of law that is afterward determined to be invalid or erroneous
o DissentNo deterrence value b/c the D was trying to obey the law and the policy
arguments of the traditional law are utilitarian
Two occasions where a mistake of law negates an element of the offense
(1) Statute makes knowledge of the very law D is charged w/ an element of the offense; When
law tells us that knowing you are violating the law is an element such as tax evasion; where a
crime requires a particular belief concerning a legal matter, the Ds mistake as to that matter
may show D lacked requisite mental state
o Cheek v. United States (1991)Cheek convicted of willfully failing to file Federal income
tax return for several years; D thought 1) Wages didnt qualify as income and therefore
were not taxable and 2) unconstitutional to have to pay taxes; Statute said anyone is
guilty who willfully attempts to evade or defeat any tax imposed by his title or the
payment thereof; Already established that willfully = D violated known duty to pay
taxes; (tax codes are so complicated it is unreasonable for people to have to know them
all)
Court held that mistake about wages constituting income can be a defense;
Collateral mistake that negates the mens rea of known dutydoes not have
to be reasonable mistake since actual knowledge required
Court held that arguing that taxes are unconstitutional is NOT a mistake; D
knows he has a duty to pay even if he doesnt agree w/ it so mens rea not
negated
(2) Collateral Mistake of LawSome element of the offense which has a mens rea associated
with it depends on something legal---thus the person does not have the necessary mens rea for
the offense (Ex. Think you got divorced and you get remarried)
o People v. WeissKidnapping element = knowingly seize a person w/o legal authority. D
thought he had been authorized by a law enforcement officer to seize the person, so he
was found Not Guilty
o Regina v. Smith (1974)D damages walls in his apartment in order to get out stereo
equipment he installed; D is charged under Criminal Damage Act which says A person
who without lawful excuse destroys or damages any property belong to another..; D
convicted on jury instruction that belief by the D that he had a right is not a lawful
excuse
Court overturns decision b/c property belonging to another requires a mens
rea of recklessness but D cannot be reckless if he thinks the property is his

b. More Exceptions and Complications (277-290)

Willfully and Knowingly Federal courts have sometimes held that knowledge or willfulness
requires
o (1) awareness of the specific statute at issue or
o (2) just a more general awareness that the acts committed are unlawful or

(3) even lessmerely awareness of what acts were committed (awareness only of the
facts)
United States v. International Minerals & Chemical Corp (1971)Statute said it was a crime to
knowingly violate a regulation of the Interstate Commerce Commission regarding the
transportation of corrosive liquids; Court said that meant the prosecution just had to prove
that the actions knowingly committed violated those regulations rather than prosecution must
prove that the D knew of the existence/meaning of the regulation its action violated
Liparota v. United States (1985)Statute said it was a crime to knowingly use food stamps.in
manner not authorized; Court said that prosecution must prove that D knew of the existence
and meaning of the regulation his actions violated---otherwise, would criminalize a broad range
of apparently innocent conduct
Bryan v. United States (1998)Statute said it was crime to willfully deal in firearms w/o Federal
license; Court said that D had to be shown to act w/ knowledge that his conduct was unlawful,
but not that he knew of the existence of the statute w/ which he was charged; Willfull in this
statute just mean with an evil-meaning mindGeneralized idea of mens rea
United States v. Overholt (2002)D charged with willfully violating statute regarding Safe
Drinking Water; Court held that sufficient to show that the D knew he was doing some unlawful
even if he did not know about the specific statute; Based on Intl Minerals since both are
environmental regulations and doubtful that Congress would require knowledge of the
environmental regulations
Official Reliance
Traditional ViewSince reasonableness of a mistake is usually irrelevant, even when mistake
due to reliance on a public official, no defense
o Hopkins v. State (1950)D convicted of crime even after States Attorney advised him
that his conduct would not violate the law
MPC Approachadopts limited defense for situations in which a D reasonably believes that his
conduct does not constitute an offense
entrapment by estoppelviolation of due process to convict a D for conduct that
governmental representatives, in their official capacity, had earlier stated was lawful
Entrapment by omission?conflicting case law about whether the failure of a government
official to inform an individual when they should have would constitute a defense
MPC 2.04 (3)(b) p.1084reliance defense available when D act in reasonable reliance upon
an official statement of the law, afterward determined to be invalid or erroneous
o United States v. Albertini (1987)D convicted of trespass during protest but conviction
set aside based on 1st amendment. Govt appealed to SCOTUS and while on appeal, D
protested again. After 2nd protest, SCOTUS reinstated conviction for original offense and
D tried for 2nd protest. Court found him not guilty due to reasonable reliance on
previous decision
Lambert v. California (1957)D, a felon, violated statute that requires felons to register w/in 5
days of moving to the LA area and no evidence that D knew about the statute; Court considers
the passivity of the Ds conduct and determines it would be unfair to hold her liable; Carves out
very narrow exception; Possible considerations by the court include (1) Punished an omission
(failure to register) (2) duty to act was imposed on basis of a status (3) offense was malum
prohibitum

II. Homicide
A. Intentional Killing
Traditional Intentional Homicide
o MurderRequires malice aforethought
Murder 1: Requires Premeditation
Murder 2: No Premeditation
o Voluntary ManslaughterNo Malice Aforethought OR with adequate provocation
Common Law Malice Aforethought satisfied by:
o Purpose to kill or cause serious bodily injury OR
Dont need intent to kill a specific person (could be different person or a crowd)
o Knowledge that you will kill or cause serious bodily injury OR
o Depraved Heart Murder or Malignant HeartReckless under circumstances manifesting
extreme indifference for human life (e.g. Russian Roulette, driving extremely recklessly
while drunk); OR
Recklessnessawareness of a substantial and unjustifiable risk
Additional Requirement for Extreme Indifference---Three factors (none
necessary)
Ds awareness of the risk
Magnitude of the risk (including both severity and probability of the
harm)
Possible justifications
o Felony-Murder: Intent to commit some felony (e.g. you commit arson and kill someone)
and someone dies as a result
o GREENBERGMalice aforethought = a particularly culpable mental state; the specifics
do and have changed over time
MPC 210.2 p.1112
o Purpose
o Knowledge
o Extreme Recklessness---include the rebuttable presumption that a killing committed in
commission of one of the enumerated felonies is extremely reckless
1. PremeditationRequired for Murder 1(not in MPC) p. 373-380
Premeditationintent to kill is formed during some thought beforehand
Some courts say that no time is too short for a wicked man to frame in his mind the scheme of
murdereffectively eliminates difference b/t 1st and 2nd degree murder though
Commonwealth v. Carrol (1963)D is arguing with his wife (who has previously abused their
children), wife insults the D, D claims he is thinking about his kids and then grabs nearby gun
and shoots the wife; Psychiatric testimony that Ds action was reflex; D convicted of 1st degree
murder and appeals claiming there was insufficient time to form premeditation
o Court holds that there is a requirement of premeditation but that no time is too short to
form that premeditation
o You can infer premeditation from the intentional use of a deadly weapon on a vital part
of the body of another
Some courts require some period of time, although no specific time period is required, in order
to find there was premeditation

State v. Guthrie (1995)D was being teased by a coworker who then snapped him on the nose
with a dishtowel; D then took out a knife and stabbed the coworker in the neck; Convicted on 1st
degree murder; appeals claiming erroneous jury instructions.
o Court overturns and remands holding that there must be some period b/t the
formulation of the intent to kill and the actual killing---accused must kill purposely after
contemplating the intent to kill
o Requires reflection or calculation in addition to intent
MPCno mention of premeditation but there is a list of aggravating circumstances that can be
taken into account for punishment purposes
o Knowingly, purposely, OR recklessly under circumstances manifesting extreme
indifference to the value of human life
PolicyWant to identify the worst/most dangerous murders and punish them more severely
o But premeditated murders arent necessarily the worst murder---What about a
spontaneous but not premeditated grisly murder: What about a son who kills his sick
father as a mercy killing?
o Premeditation requires time to think---therefore increasing punishment may have
greater deterrent effect

2. Provocation
a. Two Main Approaches to Provocation (390-401)
Common Law---killing that would otherwise be murder but was committed in response to
adequate provocation is voluntary manslaughter
Common Law defense included 4 Elements: (1) actor must have acted in heat of passion; (2) the
passion must have been the result of adequate provocation; (3) actor must not have had a
reasonable opportunity to cool off; and (4) there must be a causal link b/t the provocation,
passion, and the homicide
Two Approaches to Establishing Adequate Provocation
Traditional Approach-- Provocation only adequate during specific situations (extreme
assault/battery, mutual combat, illegal arrest, injury/serious abuse of relative, sudden discovery
of spousal adultery)---words alone are not sufficient---if it does not fall into one of the
categories, not provocation AS A MATTER OF LAW
o Girouard v. State (1991)D got into a fight w/ his wife who insulted him, threatened to
divorce him and threatened to press charges w/ JAGD stabbed her 19 times;
Convicted of 2nd Degree murder; Appeals claiming that judge found there was
provocation but just not adequate provocation so should still be manslaughtershould
expand the number of categories
Court refused to expand number of categories---verbal insults not enough
Adequate Provocationcalculated to inflame the passion of a reasonable man
and tend him to cause him to act for the moment from passion rather than
reason
Still subjective in some sense----being within the list of provocations is a
necessary BUT NOT SUFFICIENT
Not simply provocation in psychological fact but one of the well-defined classes
of provocation recognized as adequate
Reasonableness Approach---sufficient to cause an ordinary man to behave rashly or w/o reason

Maher v. People (1862)D saw his wife and Hunt go to the woods together, followed
them after they exited the woods, and friend told D he saw the two having sex the day
before; D followed Hunt into a bar and shot him in the ear; Charged w/ assault with
intent to kill and murder; Appealed on basis that presence of provocation would have
mitigated the murder to manslaughter if he had killed Hunt
Court reversed saying that the jury should have been allowed to decide whether
the provocation was reasonable and if there had been a sufficient cooling off
period
Provocation Test for Manslaughter:
Under influence of passion or in heat of blood
Produced by an adequate or reasonable provocation
Before a reasonable time has elapsed for the blood to cool
Killing was caused by this provocation (killing was NOT caused by Ds
wickedness)
Test is both objective and subjective
Objectivereasonable person would have been provoked
SubjectiveD himself was actually provoked
Difficulty with definitions of reasonable provocation
o Reasonable people would never kill?
o would cause a reasonable person to act for a moment from passion rather than
reason--Low bar to allow someone to commit murder just b/c a provocation would
cause someone to act rashly
Difficulty w/ General provocation vs the specific list
o Generaljuries might be better than judges at determining what reasonable people
would do and specific rules will have problems in certain cases
o Specific Listenforces uniform decisions across the board
Rationales for Provocation Defense: Justification or Excuse
o Justificationan individual is to some extent morally justified in making a punitive
return against someone who intentionally causes him serious offense, and that this
serves to differentiate someone who is provoked to lose his self-control and kill from
the unprovoked killer
o ExcuseD wasnt right but reason that he did it---concession to human weaknessless
culpability
o UtilitarianPeople in heat of passion might be less subject to deterrence (But what if
they actually need more deterrence)
Innocent Bystander Killed---recent trend towards allowing provocation defense unless D
deliberately kills the innocent bystander
Cooling TimeCommon law view is that too long a lapse of time b/t the provocation and the act
will render provocation inadequate as a matter of law
o Some courts will allow juries to decide
o Some but not many courts have allowed for rekindling approach---others simply allow
the jury to decide by not deciding either way as a matter of law
Defense of provocation doesnt make sense b/c focuses on the perpetrator rather than the
victim

b. MPCs Replacement of Provocation and the Reasonableness Requirement

MPC 210.3 (1)(b)p.1112: Criminal homicide constitutes manslaughter when a homicide that
would otherwise be murder is committed under the influence of extreme mental or emotional
disturbance for which there is reasonable explanation or excuse. The reasonableness of such
explanation or excuse shall be determined from the viewpoint of a person in the actors
situation under the circumstances as he believes them to be.
Extreme Emotional Disturbance Elements
o Particular D must have acted under the influence of extreme emotional disturbance
SUBJECTIVE TEST
o There must have been a reasonable explanation or excuse for such extreme emotional
disturbance, the reasonableness of which is to be determined from the viewpoint of a
person in the Ds situation under the circumstances as the D believed them to be--OBJECTIVE TEST
MPCreasonable actor in this persons situation (kind of a hybrid)
What characteristics of D should be taken into account
Include
o Circumstances
o Characteristics related to the provocation (e.g. disability, race)
o Gender & Age
o Race/Culture???
Do not include
o Level of intelligence
o Lack of self-control (temper, fact that he was drunk etc.)
o Battered womanState v. McClain (holding that Ds status as a
battered woman was irrelevant to the question of whether the
Vs conduct was that of a reasonable person
o Depression
MPCs Extreme Mental or Emotional Disturbance v. Common Law Provocation Partial Defense
o EMED does not require a specific provocative act
o EMED does not require a provocative act upon the D by the victim----no relationship b/t
victim and D necessary
o EMED does not have fixed categories of provocation
o No rigid cooling off time in the MPC version
o More power to judge/jury b/c have to determine reasonableness of
explanation/excuse
People v. Casassa (1980)D obsessed w/ ex-GF after she broke up w/ him. D stalked V and
broke into her apartment. When V rejected Ds advances, D stabbed her w/ a knife and
submerged her body in the bathtub. D presented evidence that he was under influence of
extreme emotional disturbance which was defense under NY statute; Trial court found D guilty
of 2nd degree murder b/c Ds emotional response was too peculiar to him
o Court upheld conviction and said that the test for EMED is partially subjective (D actually
acted due to EMED) and partially objective (explanation/excuse for EMED is reasonable)

B. Unintentional Killing
1. Involuntary Manslaughter (p.410-426)
Definition
o An unintended killing that is the result of an act, lawful in itself, but done in an unlawful
manner and w/o due caution and circumspection (Modern language result of criminal
negligence)
o Unintended killing caused during commission of an unlawful act not amounting to a
felony or that for some other reason is insufficient to trigger the felony murder rule
Civil vs. Criminal Liability---More than civil negligence required
o Greater degree of unreasonableness is required for criminal negligence than would
otherwise suffice for imposition of civil liability---may be necessary that the D actually
have been aware of the risk of death, although this is unclear.
o Factors that would raise your behavior from civil to criminal negligence
Probability of harm
Severity of consequences
Justifications or anti-justification?
o **Contributory negligence has no bearing in criminal law cases
Policy for requiring higher level of culpability for criminal rather than civil liability
o Tort law is not to punishit is to compensate; therefore, criminal punishment is more
severe
o Utilitarianin general, deterrence will NOT work when people are NOT AWARE of the
risk
Counter Argumentyou will be more careful and more proactive in identifying
potential risks
o Dont want to over-deter (If doctor can go to jail, he might not perform surgeries at all)
o Retributivethey are less blameworthy since they werent aware of the risk
Counteryou can be blameworthy for making choices and/or setting priorities
that lead you NOT to be awareyou should have made yourself aware of the
risk
Rebuttal---some people lack intelligence/competence to set up their priorities in
a way that they can appreciate the risk
Commonwealth v. Welansky (1944)D owned a nightclub and kept emergency exits blocked
and locked. Employee started a fire while D was in the hospital and several people diedD
convicted of involuntary manslaughter. State law (non-MPC) said involuntary manslaughter
when Ds wanton or reckless breach of duty causes the death of another.
o D had a duty to his customers so he could be liable for an omission
o Court upheld conviction with jury instructions of To constitute wanton or reckless
conduct, as distinguished from negligence, grave danger to others must have been
apparent and the D must have chosen to run the risk rather than alter his conduct so as
to avoid the act or omission which caused the harm OR if an ordinary normal man
under the same circumstances would have realized the gravity of the danger
o Common law understanding of reckless is objective rather than subjective like the MPC
o Court did not need to prove that he wantonly/recklessly caused the fire---only that he
wantonly or recklessly disregarded safety of customers
Rex v. Bateman (1925)holding that in deciding whether negligence enough for criminal
liability, the negligence must go beyond a mere matter of compensation b/t subjects and

showed such disregard for the life and safety of others as to amount to a crime against the
State and conduct deserving punishment
State v. Barnett (1951)holding that negligence must such a departure from what would the
conduct of an ordinarily prudent or careful man under the same circumstances as to be
incompatible w/ a proper regard for human life---Recklessness must be even more of a
departure from ordinary care compared to negligence
What factors should be considered when deciding what a reasonable standard of care is for
criminal liability?
o State v. Williams (1971)Ds are aware that their child is sick for 2 weeks but didnt
realize how sickthought she had a toothache; Ds give the child aspirin but dont take it
to the doctor b/c they are scared the govt will take their child away from them; Child
dies of gangrene and the Ds are convicted of involuntary manslaughter even though trial
court found that Ds did not actually know that there was a risk to their child of death
Court held that b/c the statute only requires ordinary caution, if the conduct of
the D regardless of ignorance/good intentions/good faith fails to reach level of
ordinary man of reasonable prudence, then guilty of ordinary negligence
MPC Approach p.1112Divides manslaughter (reckless) and negligent homicide (negligence)
o 2.10.3--Criminal Homicide constitutes manslaughter when:
It is committed recklessly or: (involuntary manslaughter at common law)
A homicide would otherwise be murder is committed under the influence of
extreme mental or emotional disturbance
o 210.4Criminal homicide constitutes negligent homicide when it is committed
negligently
o Two crimes are distinguished by the Ds awareness of the unwarranted risk of the harm
People v. Hall (2000)D, an experienced/well trained skier, collided w/ victim when he flew off
a knoll and killed the V. D charged with Felony Reckless Manslaughter (MPC used in this State);
District Court said that Ds conduct had to be at least more likely than not to be reckless and
affirmed prior Courts finding of no probable cause
o Court overruled the decision and said that the appropriate question was whether the
specific facts could support a reasonable inference that Hall created a substantial and
unjustifiable risk that he would cause anothers death
o Recklessactor consciously disregards a substantial and unjustifiable risk that death
could result from his actions
o Court found that a reasonable person could have concluded from the evidence that Hall
consciously disregarded a substantial and unjustifiable risk that by skiing exceptionally
fast and out of control he might collide w/ and kill another person on the slope
Objective Standard
o Defense of Objective Standardif sufficient in tort law to redistribute, then should be
used in criminal law since criminal law sets standard of behavior for the community in
the interest of safety for all----provides additional motive for people to act with care and
become aware of risks
o Criticism of Objective StandardDeterrence doesnt work on someone who is not
acting intentionally---everyone makes negligent mistakes sometimes
o Some argue that the objective standard should be broadened to include more of the Ds
actual characteristics and circumstances
MPC individualizes by describing negligence as gross deviation from the standard of care that a
reasonable person would observe in the actors situation

Same issue with regards to the provocation standard

o Walker v. Superior Court (1988)Christian Scientists 4 year old was ill and the did not
seek medical assistance. Child dies; Guilty of involuntary manslaughter b/c still ordinary
person not ordinary Christian Scientist
o State v. Everhartheld that individual peculiarities, in this case low IQ, could be
considered for recklessness but not criminal negligence

2. Manslaughter vs. Murder (426-435)

Manslaughter is the killing of another human being w/o malice aforethought
Sufficient mental states for malice aforethought
o Purpose or intent to kill or inflict severe bodily harm
o Knowledge to kill or inflict severe bodily harm
o Recklessness under circumstances manifesting extreme disregard for human life
o Depraved Heart Murder (Abandoned and Malignant Heart Murder)
Common Law Depraved Heart MurderConduct which is reckless and wanton and a gross
deviation from a reasonable standard of care
Factors for determining Depraved Heart Murder
o (1) Awareness of the RiskDanger must be apparent to the D and D chose to run the
risk anyways rather than alter his conduct so as to avoid the act or omission which
caused the harm
o (2) Magnitude of the Risk/Grave Danger to others exists (subjective test)consider the
likelihood and the size of the harm
o (3) Actions or omissions are not justified in some way
MPC p.1112: committed recklessly under circumstances manifesting extreme indifference to the
value of human life. This recklessness is presumed if D is involved in the commission of
(including attempt/accomplice) robbery, rape, burglary, kidnapping, or felonious escape
Elements of Reckless w/ Extreme Indifference to the Value of Human Lifenot all necessary
o (1) Awareness of the RiskDanger must be apparent to the D and D chose to run the
risk anyways rather than alter his conduct so as to avoid the act or omission which
caused the harm
o (2) Magnitude of the Risk/Grave Danger to others exists (subjective test)consider the
likelihood and the size of the harm
o (3) Actions or omissions are not justified in some way
Commonwealth v. Malone (1946)D and the victim play Russian Poker where one cartridge
placed in a revolver and then spun around; D puts in one cartridge, places gun to side of Vs
head, pulls trigger 3 times; D convicted of 2nd degree murder
o Court upheld conviction b/c D aimed a gun with one bullet at the V with reckless and
wanton disregard of the consequences which were at least 60% likely to occur
o Murder required malice on the part of the killer and malice can be proven when
individual acts with gross recklessness for which he must reasonable anticipate that
death to another is likely to result
o Even though there was no awareness but the severity of the harm was so high
o Unclear whether actual awareness is missing
Murder by Omission---People v. Burden (1977)(upholding a conviction for murder where a
father failed to feed his child who died as a result---omission of a duty is in law the equivalent
of an act and when death results, the standard for determination of the degree of homicide is
identical)

United States v. Fleming (1984)D was driving drunk on the wrong side of the road @ 80 MPH;
crashed into and killed someone; convicted of 2nd degree murder;
o Court upheld the convictionheld that malice aforethought by evidence of conduct
which is reckless and wanton and a gross deviation from a reasonable standard of care,
of such a nature that a jury is warranted in inferring that the D was aware of a serious
risk of death or serious bodily harm
o Takeaway---can infer awareness
Drunk Drivingmajority of US courts have held that egregiously dangerous driving can support
a conviction of murderDOES NOT say that if you are intoxicated then there is no requirement
of awareness; rather, must ask if you would have been aware if you had been sober
o MPC 2.08(2)p.1086When recklessness establishes an element of the offense, if the
actor, due to self-induced intoxication, is unaware of a risk of which he would have
aware had he been sober, such unawareness is immaterial
o Pears v. State (1983)D convicted of murder when he drove drunk after being
repeatedly warned by friends and police officers that he was too drunk to drive;
Statutory requirement of extreme indifference to human life was satisfied
o People v. Watson (1981)D convicted of murder for accident while driving drunk; court
found sufficient evidence of actual awareness of danger b/c D drove to the bar and had
to know he would have to drive back
Inadvertent risk creation however extravagant and unjustified, cannot be punished as murder
however, inconsistent about idea that being intoxicated can eliminates the need for actual
knowledge of the risk
State v. Dufielddrunken orgy leads to death
o Souter points out two ways to interpret under circumstances manifesting an extreme
indifference to the value of human life
o (1) under circumstances manifesting an extreme indifference to the value of human
life requires evidence from which a fact finder would be able to infer a subjective state
of indifference, consciously experienced at the time in questionindifference would be
regarded as an element of an offense comparable to knowledge or purpose
o (2) under circumstances is not subjective state of mind, but a degree of divergence
from the norm of acceptable behavior even greater than the gross deviation from the
law-abiding norm, by which reckless conduct is defined---would describe a way of
objectively measuring such a deviation

3. Felony Murder
a. Basic Felony Murder Doctrine, Its Rationale, and Reforms (435-446)
Basic DoctrineD is guilty of murder if a death results from conduct during the commission or
attempted commission of any felonyauthorizes strict liability for a death that results from
commission/attempted commission of a felony
Substitute for proving mens rea for murderall you have to prove is the mens rea for the felony
Strict Interpretation--Regina v. Serne (1887)D and his family lived in house and D took out a
life insurance policy on his son and his house; Fire breaks out in the house w/ evidence that D
set it afire on purpose; Son died in the fire; Indicted for murder

Court suggest a standard of any act known to be dangerous to life and likely in itself to
cause death, done for the purpose of committing a felony which causes death, should
be murder
o Unclear whether the judge was clarifying or limiting the doctrine when instructed that
the felony had to be dangerous
Less Strict Interpretation (strict Liability)People v. Stamp (1969)Man died during an armed
robbery and the Ds convicted of robbery and murderCourt upheld the conviction and said that
the felony-murder rule is not limited to those deaths that are foreseeable---Egg-shell skull rule
of robber takes the victim as he finds himexception to proximate cause rule
Proximate Cause Requirementdoes not dispense with actus reus and causation requirements--must be but-for causation and prosecutor must prove that the felonious nature of the conduct
caused the death
o Common Formulationresult must have been the natural and probable consequence of
the Ds actions, OR that is must have been foreseeable
King v. Commonwealth (1988)D and copilot transporting weed when plane gets lost in a fog
and crashes; copilot dies and D is convicted of felony murder---Appellate court said that death
has to be caused not by the wrong act but by the wrongness of the act---not more likely due to
fact that cargo is marijuana/illegal
Rationales for Felony-Murder
Deterrenceenhanced risk/punishment will cause felon to be more careful when committing
felonies
o Criticismhow do you deter an unintended act?
Re-affirms the Sanctity of Human Lifereflects societys judgment that the commission of a
felony resulting in death is more serious and therefore deserves more punishment
o Criticism---should divide the social harmsthat for the death and that for the felony
Eases Prosecutors Burden of Proofmalice aforethought does not need to be proven since no
requirement of intent to kill or injure or awareness that conduct was highly dangerous
Misdemeanor-Manslaughtermisdemeanor resulting in death can provide basis for involuntary
manslaughter conviction w/o proof of recklessness or negligence
Statutory Reformprovide certain categories of felonies, lowered the degree from 1st to 2nd
degree murder, require that killing be otherwise culpable,
Judicial Reform
o AbolitionOne state supreme court in Michigan did so (People v. Aaron)
o California Supreme Court declined to follow Aaron despite identical statutes
concluded instead the subsequent re-enactments of the statute demonstrated
Legislative intent to codify felony-murder

b. Inherently Dangerous Felony and Merger Limitations on Felony-Murder Rule (446-457)

Inherently Dangerous Felony: A lot of states limit felony-murder to homicides that occur during
the commission of a felony dangerous to human lifebrings felony-murder closer to extreme
recklessness concept of malice b/c commission of felony dangerous to human life is similar to
the disregard for human life required for depraved heart murder
o Difference is that depraved heart murder usually requires some awareness of the risk
while theoretically possible that felon will be unaware of the risks of her actions
Two approaches to determining whether felony is inherently dangerous
(1) Consider Felonies in the Abstract (California Rule)court ignores the facts of the specific
case and considers the elements of the crime as defined by statute and determine whether the

crime by its nature cannot be committed w/o substantial risk that someone will be killed or
carrying a high probability that death will resultif there is ANY way to commit the felony nondangerously, then not inherently dangerous
o Based on idea that if the felony is not inherently dangerous then there is no
foreseeability of danger
o People v. Phillips (1966)D, chiropractor, advised parents of a child w/ cancer not to
seek usual treatment b/c D said he could cure the disease for $700Child died 6
months later; Convicted of 2nd degree murder based on instruction that if D committed
felony and child died as a proximate result, then 2nd degree murder; D appeals claiming
felony was not inherently dangerous
California Supreme Court reverses holding that the felony-murder rule could
only be triggered by inherently dangerous felonies and grand theft not
inherently dangerous b/c it could be committed in many ways that are not
inherently dangerous
o People v. Henderson (1977)California Court reversed 2nd degree murder conviction for
a D that was holding a victim hostage w/ a gun and when the hostage attempted to
escape, the gun went off and killed a bystanderCourt said that unlawful restraint of
another does not necessarily involve danger to human life even though statutory factors
elevating offense to felony were violence, menace, fraud, or deceittwo
(violence/menace) are dangerous and two (fraud/deceit) are nottherefore, not
inherently dangerous
(2) As committeduse facts of the specific case to determine if the felony was committed in a
way that was inherently dangerous---proponents of this approach say the in the abstract
approach undermines deterrence of dangerous conduct that occurs during commission of a
felony
o People v. Stewart (1995)D is the mother of a small child and goes on a crack binge for
several days and neglects/forgets to feed her child who dies of dehydration; Convicted
of 2nd degree felony murder; underlying felony is wrongfully permitting a child to be a
perpetual sufferer; D appeals claiming not a dangerous felony in the abstract
Court adopts a different approach and confirms conviction---leaves it to the trier
of fact to determine whether the felony was inherently dangerous in the
manner and circumstances in which the D committed the felony rather than in
the abstract
Hines v. State (2003)D mistook his friend for a turkey and shot him; it was dark, D heard a
turkey gobble, saw a turkey fan out and shot through heavy foliage; D had been drinking; D
convicted of felony-murder based on underlying crime of possession of a firearm by a convicted
felon; D appeals claiming that felony possession of a firearm while hunting is not inherently
dangerous felony
o Court applied the facts of the case and said that Ds violation of the prohibition of a
firearm created a foreseeable risk of death---Felony is inherently dangerous when the
felony is dangerous per se or there is a foreseeable risk of death
o Foreseeable risk of death makes felony inherently dangerous
o Dissent---has to be a high probability of death
Merger Doctrinefelony-murder only applies if the predicate felony is independent of or
collateral to the homicide
o Otherwise, if D negligently killed V (involuntary manslaughter) which is a felony, then
would always be guilty of murder---getting rid of involuntary manslaughter completely

Integral Part---was felony an integral part of the murder (somewhat older way of
thinking about it)---included in fact
o Most majority viewfelony does not merge w/ a homicide where the act causing death
was committed w/ a collateral and independent felonious design separate from the
intent to inflict the injury that caused death
People v. Burton (1971)D killed a person during commission of an armed robbery and trial
court instructed jury that they could find D guilt of 1st degree felony-murder; D appeals claiming
that armed robbery is an offense included in fact w/in the offense of murder and therefore
conviction violates merger doctrine
o Court held that felony murder would apply to conduct accomplished with a deadly
weapon where there was an independent felonious purpose
o In this case, D intended to acquire money/property belonging to another and therefore,
if death occurs as result, that felony will be first degree murder
People v. Mattison (1971)D supplied methyl alcohol to prison inmate (felony to furnish drug)
and D convicted of felony-murder since D had purpose independent of intent to killfelonymurder rule would have deterrent affect b/c willingness to sell drugs would be affected by
knowledge that a fatality could lead to murder conviction
People v. Hansen (1995)D fired into apartment of rival drug dealer and killed a 3rd party;
convicted of 2nd degree felony-murder based on felony of discharging a firearm into an occupied
dwellingCourt rejected independent felonious purpose test b/c a felon that acts w/ a
purpose other than to inflict injury on someone is subject to greater criminal liability for an act
resulting in death than a person who actually intends to injure the person of the victim
People v. Robertson (2004)California Supreme Court reversed course from above decision and
upheld conviction of a D who fired at a person stealing his hubcaps (felony for negligently
discharging firearm) but claimed he was not trying to kill the manCourt revived independent
purpose test
o Dissenting judges pointed out that allowed elevation of involuntary
manslaughter/accidental killing where D denied having an intent to kill

c. Killings not in furtherance of the Felony and Killings by Non-Felons (457-466)

Basic Doctrinethe act of killing must have been done in furtherance of the felony
Death during escape from felony
o People v. GillisPolice respond to a burglary and D runs away from the cops who chase
him; during the chase, D hits another vehicle and kills the occupants; even though none
of the elements of burglary still being committed, Court found that D was fleeing and
therefore guilty of felony murder
Death occurs after defendant is already in handcuffs
State v. Amaro (1983)Police handcuff D during drug bust and several of Ds cohorts; one of the
cohorts shoots an officer while trying to escape; Court held that the arrest did not stop the
commission of the felony b/c it was a foreseeable consequence and in furtherance of common
design
Unanticipated killings
United States v. Heinlein (1973)Three Ds a rape a woman who slaps one of the Ds in selfdefense; Slapped D retaliates by stabbing the womanCourt held that the other 2 Ds were not
guilty of felony-murder b/c the one Ds unanticipated actions were not in furtherance of the
common plan

People v. Cabaltero (1939)Lookout during robbery fires shots at an approaching car and leader
of the group kills the lookout; Court held that all the participants guilty of murder b/c statute
declares that all murder committed in the perpetuation of robbery shall be murder in the 1st
degree and shooting was connected to ongoing felony
Killings by Non-Felons
Agency TheoryFelony-murder rule does not extend to killing, although growing out of the
commission of the felony, if directly attributable to the act of one other than the D or those
associated w/ him in the unlawful enterprise---felony-murder rule does not apply if an adversary
to the crime, rather than a felon, personally commits the homicidal act (does not apply to shield
cases)
o State v. Canola (1977)During a robbery, one of Ds co-felons exchanges gunfire w/
store owner and both the storeowner and the co-felon die; D indicted for felony-murder
on both counts; D appeals
Court overturns conviction w/ regards to the co-felon only; applies agency
theory and says that felony-murder does not apply to a killing by a victim or a
police officerCourt does not want to extend felony-murder rule any further
Concurrencefavors a rule that would hold the felons responsible for any
killings that happened as a result of the commission of the felony UNLESS a cofelon is killed which is a justifiable homicide
Proximate Cause TheoryCentral issue is whether the killing is reasonably foreseeable risk of
the commission of the felony
o People v. Martinez---Posner noted that holding people liable no matter who dies then it
will deter felons from using dangerous weapons
Some jurisdictions see the killing of felons as justifiable and therefore not a basis for felony
murder
MPC allows for Ds to be held liable for depraved heart murder when someone dies due to their
commission of a highly dangerous felony

IV. Attempts
A. Introduction and Mens Rea (544-554)
Common Lawattempts were misdemeanors
Modern Lawusual punishment for attempt is a reduced factor of the punishment for the
completed crime
o Ex. California punishment for attempt can only be half of the punishment for completed
crime
o Ex. NYattempts are one level below the level of the completed crime
MPC attempts should be treated like completed crime, except for harsh crimes like murder
Rationale for Lesser Punishments
o Less public outcry, Les harm, encourages renunciation
o Evidentiaryfact that someone did not exactly complete the crime may be a proxy for a
lesser mental state
o No deterrence lost from lessening the punishment for attempts since no one is only
attempting to do something
Two Types of Attempts
o Complete AttemptD shoots gun at V and misses
o Incomplete AttemptsD interrupted before he pulls the trigger

Mens Rea
Common Law
o (1) D must have the specific intent (purpose) to commit the underlying offense even
when some lesser mens rea would suffice for commission of the offense
Jones v. State (1997)D shot at a house, wounding several and killing one.
Convicted of murder for the killed V but acquitted of attempted murder for
injured V.
Attempted murder requires a specific intent to kill, but it is sufficient for murder
that D engages in conduct knowing a high probability that in doing so he will kill
someone
o Unclear whether knowledge satisfies specific intent at common law
Smallwood v. State (1996)D convicted of assault w/ intent to murderD
raped several people and knew that he was HIV-positive, had been warned to
practice safe sex, and did not use a condom; D appeals arguing that there was
not enough evidence to infer intent to killat most, he was recklessState
argues that same as pointing a gun at someones head
Court held that specific intent required for an attempt conviction may be
inferred from the Ds conduct only if the crime attempted would have been the
natural and probable result of such conduct, but for the lack of its successful
completion
Rationale for requiring specific intent or purpose even if the D had the requisite mens rea
o Linguisticone cannot say that you tried to do something if you do not intend for it to
succeed
o Moralto attempt something is to try to accomplish it, and one cannot be said to try if
one does not intend to succeed
o Utilitarianthe importance of the intent is not to show that the act was wicked but that
it was likely to be followed by hurtful consequences
Attempted Felony-MurderMost states have rejected the concept of attempted felony-murder
Attendant CircumstancesDoes the specific intent requirement extend to attendant
circumstances that are necessary elements of the crime attempted?
o Regina v. Khan (1990)D convicted of attempted rape; Court said that completed
offense required knowledge or recklessness as to whether the victim consented and
that the same would be true for attempted rape
o Commonwealth v. Dunne (1985)applied strict liability with respect to the age of a
victim in a statutory rape conviction
MPC 5.01(1)p. 1099
o 5.01 (1)Mens rea for an attempted offense can never fall below the mens rea required
for commission of the offense
o 5.01 (1)(a)ConductPurpose
o Result
5.01 (1)(b) Complete AttemptPurpose or Belief
5.01 (1)(c) Incomplete AttemptPurpose? Or Parity?
o Circumstancesnot present in the statute but commentary says same as offense or
parity
B. Actus Reus
1. Traditional Tests for Distinguishing Mere Preparation from Attempt

First Step TestD must have committed the first proximate act necessary for the commission of
the offenseObviously problematic b/c any act could be interpreted as an attempt
Last Step TestD must have committed the last proximate act before commission of the
offense---Problematic because police would have to wait until the very end to arrest the D
King v. BarkerFirst step along the way of criminal intent is not necessarily sufficient and the
final step is not necessarily required. Dividing line b/t preparation and attempt is to be found
somewhere b/t these two extremes
Proximity Testan attempt does not arise unless the D has it within her power to complete the
crime almost immediatelyProblematic b/c only looks at how far D has to go rather than
evidence of a firm commitment to criminal venture
o Physical Proximitystandard proximity test requiring close physical proximity
o Dangerous Proximityguilty of attempt when conduct is in dangerous proximity to
success or when an act is so near to the result that the danger of success if very high
o People v. Rizzo (1927)D and others intend to rob a guy but they drive around for
awhile and cant find him; Police arrest D before he finds the potential V
Court applies dangerous proximity test and says no attempt b/c D had not even
found the victim yetrelies on physical proximity to the victim and only says
this is not dangerous proximity but doesnt say what would be
o State v. Duke (1998)---D arranges online to meet a young girl (actually police) but when
he flashed his lights at the meeting place (the signal) he was arrested; Court overturned
conviction claiming that Ds overt acts did not go far enough
Abandonmentmost jurisdictions use idea that once you have done enough for an attempt,
then abandonment will not save you from liability---may affect sentencing though
McQuirter v. State (1953)Black man in the South, D , was walking up and down a street at
night; Sheriff claimed that D had confessed intent to rape first woman he saw; Court upheld the
conviction claiming intent was question for jury
o Shows why a strong conduct requirement is needed
Equivocality Testsimilar to Res Ipsa Loquiturpersons conduct, standing alone,
unambiguously manifests her criminal intent

2. MPCs Substantial Step Test

Concerns when deciding where to put the line b/t mere preparation and attempt
o Allow room for renunciation and incentivize desisting before actually committing the
crime---some states have even created an affirmative defense for voluntary
abandonment
o Make police intervention feasible
o Can not be sure of intentevidentiary issue
MPC 5.01 (2)p.1100adopts a substantial step test over proximity testlooks at what has
already been done rather than what is left to be done in order to complete the crime
o Conduct has to be strongly corroborative of the actors criminal purpose (does not say
that if it is strongly corroborative then is substantial stepnecessary but not sufficient)
o MPC outlines specific situations where the judge cannot keep the issue from the juryif
strongly corroborative and one of the examples then must go to the jury
United States v. Jackson (1977)D recruited to rob a bank and goes w/ all the necessary
equipment but decides conditions are bad and reschedules; Ds return and start acting suspicious
around the bank and police arrest the Ds as they try to flee (suspected police around); Materials

for robbery are in the car; Convicted of attempted robbery and appeal claiming mere
preparation
o Court found that the Ds had the required culpability and that the evidence did support
that the Ds engaged in a substantial step which was strongly corroborative of the
firmness of Ds criminal intentDs would have completed the task if not interrupted by
external factors
Substantial Step vs. Proximity Test
o Shifts emphasis from what remains to be done to what has already been done
o Liability only where there is a firmness of criminal purpose w/o requiring a finding as to
whether the actor would probably have desisted prior to completing the crime
o Less of a hurdle for prosecutors b/c res ipsa approach required that the actors conduct
must itself manifest criminal purpose
o Doesnt impose liability for remote acts but still allows for liability where the police
apprehended the individuals before completion
United States v. Harper (1994)Ds arrested beside a bank ATM w/ guns nearby, ammunition,
stun gun, and surgical glovesone of the Ds laid a bill trap (withdraw money but leave in the
ATM in order to get the technicians to come who could then be robbed
o Court overturned conviction for attempt holding that the Ds did not take a step of such
substantiality that, unless frustrated, crime would have occurred
o IF under MPCprobably would have been substantial step and corroborative of intent
United States v. Joyce (1982)during sting operation, agent handed D a wrapped package that
agent said was cocaine; D refused to show money until package opened and eventually D left
w/o opening the package; D arrested and charged with attempt
o Court overturned conviction claiming did not constitute a substantial step motive for
refusing to purchase the cocaine is irrelevant

C. Impossible Attempts (575-588)

Traditional RuleLegal Impossibility is a defense and factual possibility is not a defense
Legal Impossibility
o Pure Legal Impossibilitylaw does not proscribe the goal that the D sought to achieve
(ex. D drinks orange juice and thinks it is illegal to drink orange juice)sometimes
applied to doing something that used to be illegal but the statute has been repealed
(e.g. bootlegging liquor after the repeal of Prohibition laws)
Still a defense under both common law and MPC
o Hybrid Legal Impossibilityactors goal is illegal but commission of the offense is
impossible due to a factual mistake regarding the legal status of some attendant
circumstance that constitutes an element of the charged offense (e.g. D offers bribe to a
juror who is not a juror, D receives unstolen property believing it was stolen)
Greenberg DefinitionOnly problem is that attendant circumstance not as D
believes
Factual Impossibilitypersons intended end constitutes a crime but she fails to consummate
the offense b/c of an attendant circumstance unknown to her or beyond her control (ex.
Assailant shoots into an empty bed where the intended victim customarily sleeps)
o Greenberg DefinitionConduct or result cannot be accomplished
o Inherently Factual Impossibility---applies if the method to accomplish the crime was one
that a reasonable person would view as completely inappropriate to the objectives
sought (ex. Shooting a pop gun at a battleship)

People v. Jaffe (1906)D charged w/ attempt to knowingly buy stolen property for buying some
cloth that he thought was stolen. Cloth was not actually stolen.
o Court overturned conviction b/c it was a legal impossibilityeven if D had completed
the act, it would not have been illegal b/c cloth not stolen property (mistake about the
legal status of the cloth)
People v. Dlugash (1977)D shoots a body after he had already been shot several times; may
have been dead already; D convicted of attempted murder; Murder conviction overturned by
appellate courtstill issue of attempted murder
o Court said that if D believed that the victim was alive when he shot him, it is no defense
to attempted murder that he may have been dead
o MPC intended to abolish the defense of impossibilityno defense that under the
attendant circumstances the crime was factually or legally impossible of commission if
such crime could have been committed had the attendant circumstances been as such
person believed them to be
State v. Smith (1993)inmate w/ HIV bit officers hand and told him to die from what he had;
Court found inmate guilty of attempted murder even though no evidence that you cannot
transmit HIV b/c D believed it possible to infect the officer and intended to kill him
MPCabolishes the impossibility defense entirely; no reason for the distinctionsdoes so by
building it into the definition of attempt
o 5.01 (1)
o (a)would constitute the crime if the attendant circumstances were as he believes
them to be
Eliminates legal impossibility for defense (for completed attempts)
o (b)--result: purpose or knowledge
o (c)purposely does or omits to do anything which, under the circumstances as he
believes them to be, is an act or omission constituting a substantial step in a course of
conduct planned to culminate in his commission of the crime
Eliminates the legal impossibility defense for incomplete crimes
MPC NoteAttempted statutory rapeif D believes girl is underage and she isnt then MPC
does not allow this as a defense (even though it would seem like it might)
MPC 5.05 (2)If a particular conductis so inherently unlikely to result or culminate in the
commission of a crime that neither such conduct nor the actor presents a public danger
warranting the grading of such offense under this Section, the Courts shall exercise its power
under 6.12 to enter judgment and impose sentence for a crime of lower..
Federal Courts divergence from MPC Approach
United States v. Berrigan (1973)D, inmate, attempted to violate Federal statute by sending out
mail w/o wardens consent but the warden knew/approved; Convicted of attempt
o Court overturned holding there was legal impossibility and claimed that legal
impossibility existed when:
There is motive, desire, and expectation to perform an act in violation of the law
There is intention to perform a physical act
There is a performance of the intended physical act
Consequence resulting from intended act does not amount to a crime
o attempting to do that which is not a crime is not attempting to commit a crime
United States v Oviedo (1976)Undercover agent attempts to buy heroin from D, D shows up
with a substance he says is heroin, agent performs test that says it is heroin, and D is arrested;
turns out substance was not heroin; Convicted of attempt

o
o

Court reversed and rejected traditional distinction b/t legal and factual impossibility
No evidence that D believed the goods were narcotics

V. Complicity
A. Introduction and Mens Rea
1. Mens Rea with Respect to the Principals Conduct (589-604)
Derivative LiabilityNOT a separate crime, but a way of being accountable for a crime
committed by someone else (primary actor)
Common Law/Traditional Classifications
o Principal
1st Degreehe is the actor or absolute perpetrator of the crime
2nd DegreeHe who is present, aiding and abetting the fact to be done
includes constructive presence
o Accessoryno chief actor of the offense, nor present at its performance, but is
concerned therein
Accessory before the fact (was not present)
This is a person who incites or abets the principal but who is not actually
or constructively present at the commission of the crime
Just like principal in 2nd degree except not present either actually or
constructively at scene of crime, had counseled, encouraged crime
Accessory after the fact (helped after the crime)this has been eliminated and
is now covered by statute
This is one who receives or assists another, knowing that the other has
committed a felony, in order to hinder the arrest, prosecution, or
conviction of the perpetrator
Person who had played no role in preparation or commission, but
assisted in escaping capture or destroying evidence
Two Levels of Mens Rea Needed
o Mens rea of accomplice (must have intent to further criminal action of principalthere
is a split on whether intent includes knowledge); and
o Mens rea of principal
Hicks v. United States (1893)D is seen speaking w/ the shooter and victim prior to the murder
and seen leaving w/ the shooter after the murder; unsure what exactly was said; judge told the
jury that if D intended to say words that did incite the murder then complicity and if the D was
present for purpose of aiding and abetting then he is guilty even if he didnt do so
o Court overturned and said that instructions should have said that D had to have
intended for his words to incite the shooting if they did in fact do so and that just
showing up was not sufficient to be held liable
o NOTE: Court did say that would be enough if there was a previous conspiracy but the D
refrained from doing so when he showed up b/c it turned out not to be necessary, he is
equally guilty as if he had actively participated by words/acts of encouragement
Intent---Purpose or Knowledge
o Courts divided as to whether an accomplice must intend that his efforts effectively assist
or encourage the successful commission of the crime or whether awareness that the
offense will be committed by the person aided or encouraged will suffice

State v. Gladstone (1970)Man attempts to buy marijuana from D but D doesnt have enough
so D gives the man contacts for another dealer; Man buys from other dealer and D is indicted
for aiding and abetting the seller in the unlawful sale of marijuana; No evidence of
communication b/t D and the seller
o Court overturns since there is no proof of aiding and abettingno aiding and abetting
unless a D in some sort associates himself with the venture, that he participate in it as
in something that he wishes to bring bout, that he seek by his action to make it
succeed.
o Seems more like a mens rea argumentNot Ds conscious objective to help the drug
dealer make a salehe had knowledge but not purpose
MPC 2.06 p.1084Requires Purpose for Conduct
o Conductpurpose of promoting or facilitating the commission of the offense
Separate crime of knowing facilitation
Some jurisdictions just say knowledge for conduct
Some jurisdictions say only knowledge required for serious offenses
o United States v. Fountain (1985)Prisoner convicted of aiding and abetting another
prisoner in murdering a guard; Court said that it was not necessary to prove that it was
Ds purpose that murderer kill the guard; enough that D helped the murderer obtain the
weapon used to attack the guard---knowledge was enough
MPC does provide liability for attempt when someone aids and abets or attempts to aid and
abet another who does not actually commit the crime

2. Natural and Probable Consequences Doctrine and Mens Rea with Respect to Results/Circumstances
(604-616)
Natural and Foreseeable Consequencesa person encouraging or facilitating the commission of
a crime may be held criminally liable not only for that crime but for any other offense that was a
natural and probable consequence of the crime aided and abetted
o Accepted in many but not all jurisdictions
People v. Luparello (1987)D wanted to locate his ex-GF so he sent friends over to Ms house;
friends visit M once and fail to get the info; friends return w/ a gun and a sword and one of the
friends kills M; D convicted of murder in the first degree due to complicity
o Court holds that liability is extended to reach the actual crime committed, rather than
the planned or intended crime, on the policy that aiders and abettors should be
responsible for the criminal harms they have natural,probably, and foreseeably put in
motion
o Purpose to aid/abet the assault is still required but seems like negligence is all tha tis
required as to the possibility that M would die
o Similar to felony-murder in that it holds that an intent to violate the law is sufficient and
we dont need to seriously consider whether the crime an individual intended to commit
is as serious as the crime that occurred
Roy v. United States (1995)Police informant approaches D to buy a gun and D tells him to
come back w/ $400; Informant returns w/ money and D refers him to Ross who takes Informant
to a back room where Ross robbed the informant; D convicted as accomplice to the armed
robber; jury instruction said D liable if the robbery was natural and probable consequence of
illegal attempt to sell a handgun even if he did not intend for Ross to rob Informant

Court reversed holding that the evidence was insufficient to support conviction on the
natural and probable consequence theory; Theory based on what might reasonably
occur not on what is conceivable---ONLY REASONABLY FORESEEABLE
State v. Marr (1996)D arranged for two others to break into a Vs trailer and steal some tools;
during the robbery the two shot the V and burnt down trailer; D convicted of arson and armed
robbery based on natural and probable consequence theory
o Court overturned rejecting the natural/probable consequence theory and held that D
could only be liable for conduct within the area which the D procured, counseled,
commanded, or encouraged
MPC 2.06(3)(a)One who solicits an end, or aids or agrees to aid in its achievement, is an
accomplice in whatever means may be employed, insofar as they constitute an offense fairly
envisaged in the purposes of the association. But when a wholly different crime has been
committed, thus involving conduct not within the conscious objectives of the accomplice, he is
not liable for it.liability of an accomplice ought not to be extended beyond the purposes that
he shares

Mens Rea for Result and Attendant Circumstances (

State v. McVay (1926)D3 instructs D1, Captain McVay, and D2, engineer, of a passenger ship
to depart despite knowledge of a dangerous condition w/ ships boilers. Boilers explode killing
several people; D1 and D2 are indicted for manslaughter and D3 indicted for accessory before
the fact; D argued that couldnt be accessory before the fact to manslaughter arising out of
criminal negligence;
o Court upholds conviction holding that there is no inherent reason why, prior to
commission of such a crime, one may aid, abet, command, or procure the doing of an
unlawful act or of the lawful act in a negligent manner.
MPC on Mens Rea required for results--Parity
o 2.06(4) p.1085when causing a particular result is an element of an offense, an
accomplice in the conduct causing such result is an accomplice in the commission of the
offense, if he acts w/ the kind of culpability, if any, with respect to that result that is
sufficient for the commission of the offense
MPC on Mens Rea Required for Attendant CircumstanceUp to the court to decide
o Policy on the substantive offense on this point should control
Comparison of Attempts and Complicity
o Mens Rea for Results----Attempts (Purpose) > Complicity (Parity)
o Mens Rea for Attendant Circumstances----Complicity (up to the judge) > Attempt
(Parity)
People v. Russell (1998)Ds engage in a gun battle that results in death of a bystander;
unknown who actually fired the fatal shot; All Ds convicted of 2nd degree murder based on
complicity;
o Court upheld the conviction holding that each D acted with the required mens rea
(extreme recklessness) for depraved heart murder by engaging in mutual combat
o prosecution not required to prove which D fired the fatal shot when evidence sufficient
to establish that each D acted w/ the mental culpability required for the commission of
depraved indifference murder
People v. Abbott (1981)2 individuals drag raced and one killed someoneboth found guilty of
negligent homicide since race could not have occurred w/o both

State v. Ayers (1991)D sold a handgun to 16 yr old who did not have a handgun permit; Minor
showed it off at a party and gun went off and killed someone; D convicted of involuntary
manslaughter but Court overturned b/c the act was not done in furtherance of the common
design, or in prosecution of the common purpose for which the parties were assembled or
combined together
State v. Travis (1993)D was aware that his motorcycle was defective but allowed his 15 year
old friend to drive even though D was aware that he had no experience; Gave 15 year old basic
instructions and then watched him drive around; motorcycle hit and killed a small child; D
convicted of involuntary manslaughter and Court confirmed conviction on grounds that Ds
conduct was sufficient for aiding and abetting

B. Actus Reus for Complicity: aiding, encouraging. (616-621)

Common Lawmust actually aid or encourage
o OR accomplice is present for the purpose of aiding/abetting but refrains to do so
because it turns out not to be necessary
o Not necessary to establish but-for causationeven if the same result might have
occurred w/o the Ds contribution, he can be liable as an accomplice if he acted w/ the
required mens rea
Wilcox v. Jeffrey (1951)D owned a magazine and paid for a ticket to a musicians concert,
showed up at the airport when the Musician arrived, and wrote a positive review; musician
violated an immigration law prohibiting him from working in the UK w/o a proper visa; No
evidence that D applauded during the performance; D convicted of aiding and abetting the
violation of the alien employment law
o Court upheld conviction and said that D did not have to be the but for cause of the
offenseenough that he was present and encouraged the underlying crime
State v. Tally (1894)---Skeltons are going to kill Ross. Relative tries to send a telegraph to warn
Ross. D told the telegraph operator not to send the warning (Ross seduced Ds sister-in-law).
Operator did not send the warning and Skeltons killed Ross; D found guilty of aiding and
abetting murder.
o Court held that one who facilitates murder by destroying an opportunity to escape that
the victim might have had is guilty as an accomplice even though it may be found that
the victim would not have taken the chance to escape and death would have resulted
anyway
Attempted Complicity
o Pre-MPCif there is attempted encouragement or aid to the person who commits the
crime but no actual encouragement is given, no liability
o MPCIf you attempt to aid (and fail), you are still guilty of the actual crime committed
by accomplice (NOT just an attempt)
Even if the principal does NOT complete or even attempt the crime, D can still
be guilty of the attempt
o Main MPC Changes
You can attempt to aide which makes you liable for the offense committed by
the accompliceactual crime, NOT just attempt
Underlying crime does NOT have to be committed
Complicity by Omission
o MPC 2.06(3)(a)(iii)a person can be an accomplice if he has a legal duty to prevent
the offense and he fails to do so w/ the purpose of promoting or facilitating the crime

State v. Davis (1989)D watched as his son dragged a family friend into sons bedroom
and then D laid on his sons bed as his son raped the family friend; Court held that in
these circumstances, Ds refusal to help and his presence during the rape, facilitated and
encouraged the perpetrators actions
People v. Stanciel (1992)D convicted as accomplice to murder when her BF beat Ds
daughter to death; D had been court ordered to keep the BF away from the daughter
but authorized the BF to discipline the child; Even though D performed none of the acts
of beating, Court held that her failure to protect her daughter made her an accomplice

VI. Conspiracy
1. Overview (663-668)
Advantages to the Prosecutor
o Technical Advantagescertain evidence that would normally not be admitted due to
being hearsay is now admittable
o Practical Advantagesif you indict a bunch of people together, then you can throw out
a lot of excess mud which if you indicted someone individually you wouldnt be able
to produce
Vaguely Definedsome conspiracies are felonies even when doing it individually is not a crime
Dangers
o Piles on punishments and allows punishment for little more than an agreement
o Gives prosecutors way to get around things that usually protect the Ds
Collateral Consequences of Conspiracy Charge
o Hearsayhuge advantage for prosecution---once all various individuals are considered
conspirators, then the conversations that would otherwise be hearsay are now
admissible
o Venueas long as the conspiracy has some act that takes place in a particular
jurisdiction, then the prosecutor admits evidence of acts in different jurisdicitons
o Statute of Limitationsas long as a conspiracy is continuing, then the SOL does not start
to run on the conspiracy count
o Past Bad acts otherwise not allowable as character evidence---generally, prosecutor can
not use previous bad acts of doing similar things but for conspiracy you can
Ex. Prosecuting someone for credit card fraud, prosecutor cannot admit
evidence of previous credit card fraud BUT if the prosecutor alleges a conspiracy
to commit credit card fraud then the prosecutor can admit that evidence
o Liability for substantive offense---conspiracy can actually be used as a type of
accomplice liability by making you liable for substantive offenses
Not generally the case that b/c you are guilty of conspiracy to murder DOES NOT
mean that you are guilty of murder
However, in certain circumstances, in certain jurisdictions conspiracy can be a
way that you can be guilty of substantive crimes
Krulewitch v. United States (1949)Ds violate the Mann Act (prostitution ring); Prosecution
wants to argue there is an implied conspiracy or ongoing conspiracy to cover up the crimes
even though Ds did not actually agree to do that---Prosecution wants to bring in evidence that is
likely to be inadmissible as hearsay
o Court says no implied conspiracy b/c that would give the prosecutor unlimited time to
bring the claim (SOL would not start running until conspiracy was over)

2. Use of Conspiracy to Impose Accessorial Liabilitythe Pinkerton Doctrine (677-687)

Pinkerton v. United States (1946)---Two brothers are indicted for violations of IRS code
(bootlegging whiskey w/o paying Federal Liquor tax); Evidence that D1 commited the actual
offenses but no evidence that D2 directly participated (in prison); D2 found guilty of conspiracy
and the substantive offense;
o Jury instructions said that each petitioner could be found guilty of the substantive
offenses if it was found at the time offense were committed, petitioners were parties to
an unlawful conspiracy and the substantive offenses charged were in fact committed in
furtherance of the conspiracy
o Court upheld the convictions under these instructionsheld that there was a
continuous conspiracy since D2 never withdrew and claims that since the overt act
can be attributed to all the conspirators, then the substantive offense should be as well
Problemovert act requirement meant to cover actus reus for conspiracy so
extending the doctrine to substantive crimes wipes out the mens rea
requirement
o Dissentmajoritys decision extend liability beyond the civil liability for two business
partnersonly evidence is that the two brothers conspired to perform similar acts in
the past but no evidence that D2 conspired w/ D1 to commit these particular acts
State v. Bridges (1993)D brings two friends, who have guns, as backup for a fight; friends
supposed to keep the adversarys friends away during the fight; member of the crowd hits one
of the friends and the friend fires into the crowd killing someone; D convicted of conspiracy to
commit aggravated assault and of several substantive crimes including murder
o Appellate Court overruled the convictionconspirator is vicariously liable for the
substantive crimes committed by co-conspirators only when the conspirator had the
same intent/purpose as the co-conspirator who committed the crimes
o Supreme court UPHELD the conviction---Pinkerton imposed vicarious liability on each
conspirator for acts of others based on objective standard of reasonable foreseeability
as natural and probable consequencebroader than accomplice liability
United States v. Alvarez (1985)Undercover ATF agents arranged for large drug buy from D and
some of his friends; ATF agents closed in following the buy and gun battle erupted killing one
agent; D convicted of 1st degree murder and others of 2nd degree murder;
o Court upheld the conviction b/c when a co-conspirator is in a position that is reasonably
foreseeable (must be aware of the riskall that is needed is recklessness) to him that an
unintended crime might occur, he can be held responsible for that crime if it indeed
occurs; those not in such position will be more likely to escape responsibility for the
crime
Pinkerton Requirements---a lot of different ideas and the courts often use them interchangeably
even though they are quite different doctrines
o One Possible Requirement---Offenses are goals of the conspiracy (Holding in Pinkerton)
o Second Possible RequirementOffenses must be in furtherance of the conspiracy itself
(Dicta in Pinkerton)
Ex. In conspiracy to escape prison, inmate kills a prison guard---such an offense
is in furtherance of the conspiracy but is the goal of the conspiracy
o Scope of the Conspiracy?Bridges idea but similar to foreseeability
o Offenses Foreseeability
o Minor vs. Major Role of the D? (Alvarez)---most modern day Federal Prosecutors dont
bring Pinkerton claims against minor participants
Arguments for Pinkerton Doctrine

Illegal enterprises are well protected from prosecution except for prosecution under
theory of conspiracy
o Practical advantages conspiracy gives to law enforcement which can counter-act the
special advantages of criminal organizations
Conspiracy laws can be used to inflict costs on upper level members of
conspiracies by punishing more accessible members who will then demand
more compensation for the increased risk
Information Gathering Tool---threaten lower level conspirators with severe
sanctions in order to get more info on higher level members
More incentives to control violence and other criminal activity w/in the group
since the entire group will be held liable
Arguments against the Pinkerton Doctrine
o Should not hold someone guilty for substantive offense which the person did not
participate in
o MPC rejects Pinkerton standard and imposes accomplice liability on conspirators for the
substantive crimes of their co-conspirators only when the strict conditions of accomplice
liability are met
Expansive Applications of Pinkerton
o People v. Brigham (1989)D and Bluitt set out to kill a certain person; D sees a teenager
resembling the target and tells Bluit ; when they get close, D realizes it is not the target
and tries to stop Bluitt; Bluitt kills the V anyways and D convicted of 1st degree murder
b/c D could have reasonably foreseen that based on Bluitts hardheaded nature, he
might shoot someone else
o United States v. Wall (2000)D charged w/ carrying a gun in interstate commerce as a
convicted felon; Govt sought to establish vicarious liability by arguing that since Ds coconspirator possessed a gun, its possession could be also attributed to D even though
co-conspirators possession of the gun was not a crimeCourt rejects argument

B. Actus Reus and Mens Rea

1. Actus Reus of Conspiracy (687-695)
Common Law---Must form an agreement b/t 2 or more people to commit a crime
o Tactit agreement is sufficientcan be implied from the cooperative action of the parties
and proof can be circumstantial
o Encouraging someone is not enough for an agreement; requires understanding that
there is an agreement and that you are counting on each other
o D does not have to know all the aspects of the plan---just must know the essential
nature
o All participants dont have to know each other---just that the act would require an
organization
Interstate Circuit Inc. v. United States (1939)two movie theater dominate the local theater
market; they each enter into contractual agreements w/ 8 different film distributors by sending
a letter that mandates demanded price restraints and restraints on outputs; the letter identified
that each distributor had received the letter; Trial court found that distributors had agreed and
conspired w/one another to take uniform action and violate Sherman Act even though no
evidence of actual explicit agreement; Trial court issued an injunction
o Supreme Court upheld injunction finding that evidence supported inferences since no
individual distributor would change their business practices so dramatically unless they

knew all the other distributors would do the sameunlawful conspiracies can be
proven even w/o simultaneous action or agreement on part of the conspirators
MPC and some Modern Statutes--Overt Act Requirement
o Some statutes (including MPC) require an overt act by a conspirator in furtherance of
the conspiracy. This cat can be innocent in and of itselfjust needs to show criminal
intent
Does NOT have to be an act by the D himself
Does NOT have to be unequivocal---NOT a substantial step; NOT in dangerous
proximity---just has to be an overt act---much less required than attempts; just
want to ensure that crime isnt completely mental
o MPC 5.03(5)No person may be convicted of conspiracy to commit a crime, other
than a felony of the 1st or 2nd degree, unless an overt act in pursuance of such
conspiracy is alleged and proved to have been done by him or by a person with whom
he conspired
Exception for felonies in the 1st and 2nd degrees
2. Mens Rea of Conspiracy (695-702)
Two kinds of Mens Rea Required
o Intent to form an agreement (purpose, not just knowledge)
o Intent to commit a crimeis knowledge enough?
Majority/MPCPurpose required
Minority/Lauriaknowledge is enough for felonies
Feloniesknowledge is enough
MisdemeanorsRequire special circumstances in order to establish
intent based on knowledge
People v. Lauria (1967)D runs a telephone answering company and knows that some of his
customers are using his service as prostitutes; When prostitutes are arrested, D is charged w/
conspiracy to commit prostitution; Trial court dismissed and State appealed
o Knowledge can be sufficient for more serious felonies but not for misdemeanors
o For Misdemeanors, Court may infer the requisite intent from knowledge when:
Distributing dangerous product (like drugs)
D has acquired a stake in the venture in some way (such as charging higher
prices to illegal customers)
Product has no legitimate use (e.g. wire service that was only used by bookies)
Volume of Business is grossly disproportionate to any legitimate demand for a
higher proportion of the sellers total business
VII. Justifications and Excuses
A. Justifications
1. Self-Defense (737-749)
Traditional Rule of Self-Defense---One is privileged to use force against another if:
o One reasonably believes
o Such force is necessary to defend against the others
o Immediate or imminent use of unlawful force at D
o And ones own force isnt excessive

Special requirements for use of deadly forceone reasonably believes the other
is about to use deadly force or that the other person is committing a serious
violent crime
People v. Goetz (1986)D approached by 4 black youths on a train; one maybe two of the
youths approached D and demanded money; D pulls out a gun and shot all four of the youths
even the one that was not actively involved in the attempted robbery; NY statute said that using
deadly force as a defense he must reasonably believe that such other person is using or is
about to use deadly forceProsecutor asked jury to define reasonably believed as
considering all the circumstances, whether the Ds conduct was that of a reasonable person in
the Ds situation
o Court upheld the conviction and said that justifiable self-defense must be objectively
reasonable under the circumstances, but the circumstances may include perceptions of
the attackers intentions
MPC Approach
o Relaxes imminent requirementmust be immediately necessary to use this force
o Not purely subjective standard of reasonable person although looks that way
o Believes its necessary but if it turns out it wasnt reasonable, you can be convicted of a
reckless/negligence crime
o Under the MPC, one who honestly believes that they have the need to use force, has a
full defense except that if they were negligent or reckless in forming that belief then
they wont have a defense to a crime where the mens rea requirement for the crime is
negligence or recklessness (will have a defense for purpose or knowledge crimes)
o More favorable to D where D unreasonably believes it is necessary to use deadly force
to defend: if evidence shows that D honestly, but unreasonably believed deadly force
was necessary, then he can be convicted of negligent homicide (MPC equivalent to
involuntary manslaughter) b/c as long as D actually believes it was necessary, he can
argue self-defense

2. Necessity or Choice of Evils (789-809)

Traditional Doctrineused to only be a necessity when came from a natural source rather than
other people (as in self-defense)
o Situation threatening imminent harm unless law is broken (or at least D reasonably
believe so)
o D is not at fault in bringing about the situation
o Harm avoided by law breaking exceeds the harm it causes
Necessity is a justification not an excuse
MPC Notes
o 3.01 (1)Eliminates the reasonableness of the belief requirementhonest belief
seems sufficient
(a)has to be true (not subjective) that the evil sought to be avoided is greater
than that sought to be prevented by the law defining the offense (Kind of a
Strict Liability)
o 3.01(2)similar to self-defense in that if your mistake is culpable then you wont have
this defense in prosecution for a crime that requires the same kind of culpability as you
have w/ regards to the mistake
NY Statute
o Emergency measure to avoid imminent injury that is about to occur rather than MPC

o **Cannot have necessity defense if you are responsible for creating the hazard
People v. Unger (1977)D, prisoner at min. security prison, walks off the farm; D claimed that
he had been sexually assaulted and feared for his life and did not want to tell authorities b/c he
feared retaliation; Convicted of escape during trial and appealed since jurors told that any
reasons given for his escape were immaterial and could not be considered as a justification
o Even though courts are traditionally hesitant to grant necessity defense to escaping
prisoners, Court overturned holding that D should have been allowed to present his
necessity defense to the juryD entitled to have the jury consider the defense
United States v. Bailey (1980)Supreme Court held that for escaping prisoner to invoke
necessity defense, D must make a bona fide effort to surrender or return as soon as the durres
or necessity had lost its coercive effect
Borough of Southwark v. Williams (1971)Ds were in dire straits (homeless) so they entered
empty homes and became squattersCourt rejected necessity defense based largely on policy
ground
Commonwealth v. Leno (1993)D operated needle exchange program and charged with
distributing hypodermic needles; Court upheld conviction in spite of attempted necessity
defense b/c Ds didnt show that danger was clear and imminent rather than debatable or
speculative
Commonwealth v. Hutchins (1991)D charged w/ cultivating/possessing weed; claimed he
suffered from severe medical problems which weed help alleviate; Court upheld conviction
claiming harm to the public outweighed the benefit---worried about policy implications
State v. Rasmussen (1994)Ds license had been suspended but he gets stranded on a highway
in middle of snowstorm; driver goes for help but doesnt come back; D gets car unstuck and
drives off; pulled over and issues ticket for driving w/o a license (strict liability)
o If necessity defense designed to identify cases in which blame for a wrongful act should
not be imposed it would seem that defense should not be available b/c strict liability is
an offense in which liability for wrongful conduct is imposed even in absence of fault
o If necessity defense is designed to identify cases in which the Ds conduct is not
wrongful at all, then it would seem that a claim of necessity should be considered
United States v. Schoon (1992)Ds protested war in El Salvador by taking over IRS office and
vandalizing; Ds argue that IRS collects taxes which are used to fund war/death in El Salvador
and attempted to use necessity defense
o Trial court denied the use of the defense and laid out 4 guidelines
Faced with choice of evils and chose the lesser evil
Acted to prevent imminent harm
Reasonably anticipated a direct causal relationship b/t their conduct and the
harm to be averted
Had no legal alternatives to violating the law
o District Court said that immediacy was lacking, action taken would not abate the evil,
and other legal alternatives existed
o Appellate court makes more theoretical argumentno necessity defense as a matter of
law for indirect acts of civil disobediencegovernment policy is not a recognized harm,
unlikely to abate the harm targeted b/c largely symbolic, legal alternative exist
o Point of necessity defense is that if the legislature had thought about the particular
situation then they would have crafted an exception---obvious for civil disobedience
that the legislature thought about it since legislation itself being protested

B. Excuses
1. Insanity (863-878)
D is entitled to acquittal if he was so impaired by mental illness or retardation at the time of the
crime as to be insane w/in the meaning of the law (Affirmative Defense or lack of Mens Rea)
Different from incompetency to stand at trial
But-for causation is not enough; if a person who is insane and wants to kill the Presidentand
he steals a gun, he could still be guilty of theft
Burden of production/burden of proof
o D has the burden of production (some evidence of insanity)then prosecution has to
prove that the D was sane
Consequences of Acquittal
o No automatic consequence on grounds of insanityState then uses normal civil
commitment procedures
o Mandatory commitment until the D meets some burden of showing that he is no longer
a danger to society/mentally insanesometimes longer than the sentence D would
have received
o Guilty but insane judgment---judge sentences D in a normal way but the D must be
treated while in prison
Rationale
o No point to use criminal law against people w/ mental disease b/c it is perfectly useless
to try to deter people w/ certain mental illnesses---Greenberg thinks this is a bogus
argument
o Culpabilitynot blameworthy in the same sense
Two traditional tests
o MNaghten Test--He was suffering a mental disease or defect as a result of which person
did not know what he was doing OR that it was wrong
Elements
Have a mental illness/defect
Either
o Did not know what you were doing OR
o Did not know what you were doing was wrong
Because of the mental illness
Uncertainty about whether you have to know what you are doing is illegal or
that it is morally wrong
Legally wrong?standard doctrine is that you are held to legal standard
whether you know about it or not
Problems
Does not define Mental disease
Inability to control conduct is not even considered in MNaghten test
All or nothing aspect---jury has to find that the person did not
understand at all---no gradation
o Irresistable Impulse test
o MPC 4.02(1)result of mental disease or defect he lacks substantial capacity either
to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to
the requirements of the law
Difference from MNaghten

Eliminates criminality if you cannot control your actions

Substitutes appreciate for knowidea of appreciate is that it is
supposed to be a deeper understanding rather than formal knowledge
Use of the word substantial---may not be totally irresistible but still may
count---gives the jury role in deciding
Criminality probably does not mean that you have appreciate that it was
illegal