Introduction to Criminal Law

Proof Beyond A Reasonable Doubt

A. Due Process requires the prosecutor to persuade the fact finder beyond a reasonable doubt of every fact
necessary to constitute the crime charged.
Far worse to convict an innocent man, than let a guilty man go free
Presumption of innocence: insufficiency of evidence a shorthand way of claiming that the
prosecutor did not overcome the burden of production (See Owens v. State)
o On appeal for insufficiency of evidence claim: Whether, after viewing the evidence in
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.
Note on Presumptions: Sandstrom v. Montana (1979 U.S.)- Presumption that D intended the
natural & probable consequences of his act. Constitutional but could have been misunderstood
by jury to impose on the D a burden to disprove the presumption (this would unconst. put a
burden on D to disprove a mens rea). Instruction must be clearer.
o Likely only valid if: (1) link between A & B (where because A, infer B) is very
strong; and (2) judges instructions so weaken the mandatory nature of the
presumption and make it so fact-specific to the case at hand that it is no longer an
abstract proposition.
MPC 1.12 (1): No person may be convicted of an offense unless each element of such
offense is proved beyond a reasonable doubt. In the absence of such proof, the innocence of
the defendant is assumed
B. Jury Nullification
Where the prosecutor proves every element of the charge beyond a reasonable doubt, but the jury
does still not want to convict
Because of the double jeopardy clause and the fact that juries do not need to explain their
verdicts, they do have the power to acquit for any reason
(See State v. Ragland: trying to limit jury nullification as much as constitutionally permissible)
For jury nullification: (See Williams v. Florida)
o Jury trial: prevents oppression by government
o If the primary purpose of a jury trial is community oversight, denying the possibility of
jury nullification defeats the central purpose of the jury system
Against jury nullification: (See United States v. Luise)
o A means to sanction murder and lynching
o Disregards the truth
o Deviates from the core function of truth seeking
What do jurors look at when determining whether to acquit?
(1) personal characteristics of D
(2) degree of harm caused by D
(3) jurors belief that victim was partially at fault for the offense
(4) view of the morality or wisdom the of the law
(5) belief that D has been punished enough or that violation of the crime carries too harsh a punishment
(6) perception that police or prosecutor acted improperly in bringing the case
Race Based Nullification
Arguments for: (Professor Butler)
non-violent offenses such as theft, juries should consider nullification
idea that they do not have a voice in the justice system and this gives them one
Arguments Against: (Professor Leipold)

cost benefit analysis: cannot make that decision because they do not have access to a
majority of the information
whether you go free or go to jail should not be dependent on your skin color

Theories of Punishment
Defining punishment: Where an agent of the government pursuant to Ds criminal charge intentionally inflicts
pain on D or causes the D to suffer unpleasant consequences
A. Utilitarianism (forward looking)
(Bentham): Punishment is only justified if it results in a reduction of crime
Deters crime if perceived punishment outweighs perceived pleasure
Type 1: general deterrence
Ds punishment serves the purpose of deterring the general community from committing crime
o Displays what punishment is not permitted
Type 2: individual deterrence
Deter Ds future misconduct by deterrence
Type 3: incapacitation
D cannot commit crimes during the time he is in prison because he is segregated from society
Type 4: rehabilitation (non-classical)
Serves same purpose of reducing future crime, but through a different meansreform the wrongdoer
rather than secure safety through fear or bad taste of punishment
o (i.e. therapy, psychiatric care, therapy for drug addiction)
Criticism:
A. Justifies using people as a means to an end
Response: Because D himself also benefits from the punishment, not used solely as a
means to an end
B. Can justify the punishment of someone innocent as long as it benefits the public by reducing
crime
B. Retributivism (backward looking: pay back debt to society)
Punishment is justified when it is deserved: if the wrongdoer choses to violate the law, they should
be punished, regardless if their punishment will deter crime
o Positive component: punish at least as much as deserved
o Negative component: punish no more than deserved
Assaultive Retribution
Because a criminal harmed society, society can harm them back
Idea that it is morally right to hate criminals
Also satisfies passion for revenge (in a sense a guised form of utilitarianism because it deters people
from committing private acts of revenge
Protective Retribution
Means of securing moral balance of society
Idea that criminal owes a debt to society and this provides the criminal with a means to repay his debt
and return to society without guilt
Victim Vindication
In committing a crime, the defendant put himself above the victim
Proportional punishment is a means to elevate the worth of the victim

Criticism:
A. Punishment is senseless and cruel if it does not benefit society
B. Glorifies anger and legitimizes hatred
C. Irrational because founded on anger rather than reason
C. Denunciation
A means to express societies condemnation of a crime
Utilitarian: By informing individuals that specific behavior is not permissible, maintains social
cohesion
Retributive: stigmatizes offender and punishes wrongdoer merely because he has engaged in
behavior that conveys disrespect for important societal values
Note on Sentencing:
Indeterminate: if trial judges have broad discretion (People v. Superior Court) Determinative sentencing:
legislative mandates through sentencing guidelines

Proportionality of Punishment
Categorical bars:
o A. Juvenile (Kennedy v. Louisiana death penalty for not juvenile committing a homicide)
o B. Rape (Coker v. VI)
o C. Rape of a child (Kennedy v. LA)
o D. Mentally impaired
Idea that person receives a punishment proportional or reasonable in relation to the crime
(1) Challenges to the length of term-of-years sentences
(2) Categorical restrictions on death penalty
Test: (See Coker v. Georgia)
A Punishment is excessive and unconstitutional if it:
A. Makes no measurable contribution to acceptable goals of punishment and is nothing more than that
purposeless and needless imposition of pain and suffering
B. Is grossly out of proportion to the severity of crime
Ginsburg on murder for rape: the death penalty should be rejected as a vestige of an ancient patriarchal
system in which women were viewed both as the property of men and entitled to a crippling chivalric
protection
o Coker v. Georgia: death penalty not proportional to crime of raping adult woman
o Kennedy v. LA: death penalty not proportional to child rape
4 person dissent: draws an example of moral depravity
A. D robs a store, and his accomplice shoots the guy working behind the counter
(reckless)
o B. Previously convicted child rapist repeatedly rapes and tortures multiple child
victims
Narrow Proportionality Principal: (See Ewing v. California: unconstitutional only if grossly
unproprotional)

Modern Rule of Criminal Statutes

(1) Criminal statutes should be understandable to reasonable law-abiding persons

(2) Criminal statutes should be crafted so that they are not delegated basic policy matters to policemen,
judges, juries for resolution of ad hoc and subjective basis
(3) Judicial interpretation of ambiguous statutes should be biased in favor of the accused
Approaches to statutory interpretation:
A. Plain meaning (think the term carry)
B. Legislative intent
C. A word should not be disregarded if it can be interpreted to reasonably mean something
D. Lenity
E. Presumption of constitutionality (where a statute is susceptible to two interpretations,
court should use the constitutional one)
MPC 1.05 (1): All Offenses Defined by Statute: no conduct constitutes an offense unless it is a
crime or violation under this code or another statute of the state
Principle of Legality
A person cannot be convicted and punished unless her conduct was defined as
criminal
(See Commonwealth v. Mochan broadly interpreting the common law to define
lewd phone calls as a violation of the criminal statute, caveat dissent) **rarely
used
o Test: Could you be punished under the common law
(See Keeler v. Superior Court looking to ancient roots of term human being and
holding that D is denied due process because was not given fair warning that his
conduct was criminal)
Statutory clarity: (See in re banks: judge in light of a) common law meaning,
statutory history, and prior judicial interpretation of particular terms)
What is the problem with vague laws?
(1) Because we assume people can freely choose whether to violate the law, clear laws provide people with
a reasonable opportunity to know what is prohibited
Test: Does the law provide fair warning?
(2) If arbitrary and discriminatory enforcement should be prevented, laws must apply explicit standards for
those who enforce them
(3) A vague statute often forces people to steer wider from an unlawful zone, than if it were defined: thus
violating their First Amendment Rights
ASK: Can the statute potentially punish innocent conduct? Does the vagueness allow for arbitrary and
discriminatory law enforcement?
The Lenity Doctrine: Permits a court to interpret a statute favorably to the defendants interests (in the case
where it can be interpreted either way)
In other words: if all reasonable means of interpreting the statute leave us unable
to determine its true meaning: should be construed strictly against the government
See Muscarello v. United States: holding the term carry is not ambiguous enough
to warrant the lenity doctrine (dissent advocates for the doctrine)

Actus Reus: objective the voluntary act element of a crime.

The physical or external part of the crime
People v. Decina: D voluntarily drove a car despite knowing he was subject to epileptic seizures. Lost control
and killed people. Convicted of negligent vehicular homicide even though the actual act was involuntary
because it occurred during a seizure. Earlier voluntary act was enough to establish crime.
Purpose:
A. Requires evil intent to be actually expressed
B. Defines punishment because there is an identified occurrence
MPC 2.01
A person is not guilty unless his liability is based on conduct which includes either a voluntary
act or the omission to perform an act for which he is physically capable
Not voluntary (per MPC):
1- Reflex or convulsion
2- a bodily movement during sleep or unconsciousness
3- a bodily movement not the product of the effort/determination of the actor, either
conscious or habitual.
Omission: only liable if:
4- omission is expressly made
5- a legal duty to perform the omitted act is otherwise required by law
Ex. Failure to file an income tax return.
Possession: if actor knowingly procured or received the thing possessed or was aware of his
control for long enough to terminate control. Other courts do not require knowledge.
MPC Breakdown of Material Elements: (1) Conduct; (2) Circumstance; (3) Result6- Conduct: Physical behavior of the D: (Driving a car or shooting a gun)
7- Circumstance: Objective fact or condition that exists in the real world when the D
engages in conduct. (Stealing from residence at night- must prove these circs existed)
8- Result: Consequence/outcome caused by Ds conduct. (death)
-Result crimes: law punishes unwanted outcome (i.e. death of another which is the social harm)
-Conduct Crimes: law prohibits specific behavior (i.e. driving while intoxicated, here the social
harm is endangering social interests)
-Attendant circumstance elements: a condition that must be present alongside the prohibited
conduct or result in order to constitute the crime (i.e. drunk driving: just being intoxicated, the
conduct crime is not enough: but rather she must drive intoxicated to constitute the actus reus)
A. Voluntary: willed or directed movement
Martin v. State: accused did not voluntarily walk into public intoxicated violating the statute, but
rather was dragged by the police
State v. Utter: accused tried framing the killing as a act or a pattern of activity occurring so rapidly,
so uniformly as to be automatic
o Generally, states & MPC allow automatism as a defense (here expanded time frame
voluntary act of drinking) (People v. Medina epileptic driver)
Why require the act be voluntary?
Involuntary movement cannot be deterred so dont criminalize it (utilitarian view)
Involuntary action does not deserve punishment because individual didnt choose to do it (retributivist)
Thoughts dont count: Difficult to tell what person is thinking; may not act on thoughts;
Alcohol

Washington Common law approach

Where alcohol is voluntarily consumed, not a
complete defense to argue unconsciousness
(See Martin v. State)

MPC 2.08
Intoxication is not a defense unless it negatives
an element of the crime
Recklessness: if unaware because he is
drunk of risk: immaterial
Does not constitute mental disease
Intoxication that is a) self induced or b)
pathological is an affirmative defense if
because of the alcohol the actor cannot
conform his conduct to requirements of
law
Defining pathological intoxication:
intoxication grossly excessive in degree, to
which the actor does not know he is susceptible

B. Omissions: Negative Acts

Test: Is there a legal duty? Generally, must know about the facts that give rise to the duty to act.
Generally, a legal duty can exist in 5 circumstances
(1) statute imposes duty; Ex. statute requires medical providers and others to report suspected child abuse.
(2) type of relationship (People v. Beardsley just being in mans home not enough to create a legal duty)
(Barber v. Superior Court no doctor-patient duty to continue giving life sustaining treatment when
treatment proven unsuccessful); parents must provide food, shelter, and clothing to child.
(3) contractual duty; Ex. Nursing homes often enter into a K to provide medical services to residents.
(4) voluntarily assumption of care that isolates the individual; Ex. Taking a sick person into ones home
may result in a duty to provide care.
(5) Creation of peril; Ex. someone pushes another who cannot swim into a deep lake must take reasonable
steps to rescue him.
(6) Duty to control the conduct of another; Ex. Biz executive may have a duty to prevent the company
chauffeur from speeding.
(7) Duty of Landowner; Ex. Theater owner has a duty to provide reasonable emergency exits for his
patrons.
Good Samaritan Statutes: Criminal offense to refuse help to those known to be in serious peril when aid could
be provided without danger.
Justifications for requiring legal duty
(1) non-doings are inherently more ambiguous
(2) line-drawing problems
(3) make matters worse by intervening causes
(4) compulsion: imposes on peoples freedom
absent special circumstances no legal duty to inform police about a persons intent to commit a crime
Ex. While driving, failed to see C crossing street in crosswalk because distracted by rage. Driving is voluntary
act. The fact that the car struck C because inadvertence does not alter the essential nature that driving was a
voluntary act.
Ex. Listening to talking GPS, turns right and gets stuck on track. Train crashes and kills people.
D: Not voluntary. Simply obeyed the command of the GPS, assuming it knew a safe route.
P: Still had a choice to turn or not to turn. Deliberate motion of the wheel. No right to delegate
important decisionmaking over a moving car to a machine. P probably prevails.
As a Prosecutor, try to point to an earlier voluntary act (taking intoxicating drug/substance) that
induced a mental condition.

Ex. Dick Cheney shot person while hunting inadvertently & called political advisor before summoning medical
help. Not crim. responsible for accidental shooting. BUT legal duty to summon medical aid immediately. If
died, could be convicted because of the omission.

Mens Rea
(1) Culpability: D is guilty if she commits the social harm of the offense with any blameworthy state of
mind
(2) Mental state D has with regard to social harm to elements in charge
You have to intend the consequence: reckless not enough

Intent (Purpose)
Must distinguish whether actor intended the conduct or intended the result.
Ex. P intentionally pulls trigger and kills L. P is charged with intentionally killing a person
-Ways of not being guilty: (1) Did not intend to shoot the gun (thought it was empty);
(2) Intended to shoot but didnt intend bullet to hit anyone (aiming at tree thought to be empty)
(3) Intended to shoot but meant to hit Joker not L (Joker was assaulting him)
(4) Intended to shoot gun and hit L, but earnestly hoped wouldnt kill her (only trying to wound)
1 & 2 are mistake (see later);
3- Transferred Intent: Intent follows the bullet. Limited to the same type of harm as was actually intended.
Unnecessary doctrine? P intended to assault a human being. Doesnt matter WHO!
4- Oblique Intent: Treat D as though he had intended the actual result. Didnt actually intend BUT knew that
the result was practically certain to happen if he achieved his actual goal (shooting L in the heart).
Ex. J purposes to kill his wife by putting a bomb on a plane she is taking. Bomb explodes, wife killed, as
well as 30 others. Js Defense: did not intend or purpose to kill the passengers. Doesnt matter! Why?
D is almost as morally blameworthy (or as much in need of rehabilitation/incapacitation) as a D who
actually intended to kill the person he shot.
What was the person thinking? Actions suggest thoughts (People v. Conley)
Common Law specific intent vs. general intent:
A. Specific intent: mental state expressly stated in statute (elemental) (approach to take)
B. General intent: No particular mental state set out in definition: moral blameworthy state of mind
(culpability)
A. Specific intent: An offense that contains in its definition the mens rea element of intent or knowledge
B. General intent: permits conviction on less culpable mental state
Reckless/negligence
A. Specific Intent: above and beyond intent required by actus reus
B. General Intent: relates solely to conduct that constitutes social harm of criminal offense
Typically: with intent to = specific intent offense
Ex. Assault is a general intent crime but assault with intent to rape is a specific intent crime.
Ex. Break & Entering is gen. intent crime but B&E w/ intent to commit a felony therein = spec. intent
Ex. Burning Down House = G.I. Crime but Burning Down House w/ intent to obtain insurance
thereon is a specific intent crime.
For Mens Rea: Specific Intent Crime is one done purposely or intentionally.
General Intent Crime is one done knowingly, recklessly, or negligently.
MPC 2.03 (2)-(4): Casual Relationship Between Conduct and Result: Divergence Between

Result Designed or Contemplated and Actual Result

2. when purposefully or knowingly causing a particular result is an element of the offense:
not satisfied if the result was not the actors purpose UNLESS
A. only differs in the sense that a different person or different property is injured
(transferred intent)
B. Same kind of injury and not too remote or accidental
3. When recklessly or negligently causing a particular result is an element of the offense,
element is not established if the actual result is not within the risk of which the actor is
aware or of which he should be aware UNLESS
A. transferred intent
B. same kind of injury not too remote or accidental
4. When causing a particular result is a material element of the charge for which absolute liability
is imposed by law: the element is not established unless the actual result is a probable
consequence of the actors conduct
An Exception to General Requirement of Mens Rea: Public-Welfare Statutes, and statutory rape

Knowledge (Willfully and Knowingly)

Oblique Intention = Knowingly. Not intentionally. Can not intend but know that it is virtually certain to occur.
MPC 2.02: General Requirements of Culpability
A person is only guilty if he acted purposefully, knowingly, recklessly, or negligently with
respect to each material element of the offense (elemental approach)
A. Purposefully: A person acts purposefully with respect to a material element of charge,
conscious object to engage in conduct of that nature or cause that result (if element
includes attendant circumstances person hopes or knows they exist
B. Knowingly: aware conduct is of a certain nature, if involves result: aware result is
practically certain to occur
**requirement of knowledge satisfied if person is aware of a high probability of its
existence, unless he actually believes it does not exist (compare to state v. Nations which
requires actual knowledge not just mere willful blindness)
C. Recklessly: conscious risk creation A. substantial and B. Unjustifiable
Test: Given the actors perceptions, is there a gross deviation from how a law-abiding
person would act in that same situation?
(1) To what extent was actor aware of the risks
(2) Whether Ds conscious disregard justifies condemnation
D. Negligently: inadvertently creates a substantial and unjustifiable risk for which he should
be aware
**Examine risks and factors that are relevant (objective) (if not expressly stated in
statute cannot apply negligence standard)
Note On Willful blindness: (MPC recognizes)
A. D must subjectively believe there is a high probability that a fact exists
B. D must take deliberate actions to avoid learning of the fact
Willfully: By ones will = D acted in a voluntary way. Other Courts: D must know what consequences of
action were likely to be.

Recklessness
Conscious decision to ignore a risk, of which the D is aware, that a bad result will occur or that a fact is
present. So D knows injury is being risked but proceeds anyway.

The key to understanding risk is whether the risk is outweighed by societal good. (Ex. Speeding, walking down
steps while carrying a loaded gun, hitting a ball with persons standing only ten feet in front of the ball).
-If outweighed, then unacceptable risk.
Requires D to RECOGNIZE a particular risk AND SUBJECTIVELY CHOOSE TO DISREGARD
THAT RISK. While this can be inferred by prior actions, The conduct must be reckless NOT the result.

Criminal Negligence
Retributivists- Person who has not paid attention to a risk has not chosen to create that risk and therefore is not
morally culpable. Others Retributivists: Person who has the capacity to be non-negligent but fails to use that
capacity is morally blameworthy (because didnt utilize capacity OR has not honed skills to have perceived and
avoided risk).
Utilitarians- Punishing negligent Ds may encourage others to become more careful, thereby deterring future
harms. Other Utilitarians: Persons rarely act without believing they are acting rationally & reasonably, so no
educative (deterrent) effect to punishment (no beneficial effect in the real world).
Criminal Negligence: Mere tort negligence is insufficient to ground criminal liability; the negligence must be
criminal.
-Ex. Degree of negligence or carelessness which is denominated as gross, and which constitutes such a
departure from what would be the conduct of an ordinarily careful and prudent man as to furnish
evidence of that indifference to consequences which in some offenses takes the place of criminal intent.
Better: (1) Subjective recognition of the harm and/or (2) risk of only some, very serious, harm, and/or (3) a
statistically greater risk of harm.
-While tort liability may attach for 40% risk (maybe reasonable), crim liability more like 70%. (virually
every person). Ds failure to recognize the risk must be really outrageous!
Some Courts allow tort standard under some areas: Child Abuse, Neglect, for example.
State v. Williams (Wash. App. 1971)- Ds were poorly educated American Indian parents whose infant
child had developed a severe abscess in his teeth, but did not realize the severity of the illness & afraid
to take child to doctor (could be taken away from them). Statute appeared to allow conviction on mere
negligence.
Reasonable Prudent Person: Characteristics that increase Ds duty of care (higher degrees of expertise,
training, or learning) routinely added to the RPP (i.e., the Reasonable Brain Surgeon)
Lower Ds duty of care: Age, Long-term permanent physical characteristics.
Crim law is more lenient in subjectivizing the RPP.

Inference
Can infer from the Ds conduct, words, and maybe other facts to prove what D was thinking.

Contemporaneity, Prior Fault

D is only liable if the actus reus and the mens rea coincide.
Ex. C decides to kill H by shooting him next time he does X. H doesnt do X & C forgets about her
desire. Two weeks later, H does X while C is shooting at a tree outside. C accidentally shoots H. Cannot
be at fault for purposely killing H.
Ex. Instead of shooting; C puts arsenic in Hs toothpaste. C falls into a coma, wakes up and says she
doesnt want H to die. H meanwhile dies from toothpaste. These coincide because the relevant actus
reus is NOT Hs death BUT Cs act of putting poison in toothpaste. A.R. occurred with the M.R.
People v. Decina- Driving and killed 4 kids in crosswalk. Had an epileptic seizure. But what led to this
harm was an act (beginning to drive) and a mens rea (crim negligence or recklessness as to the
possibility that he would have a seizure, lose control of the car, and cause death/serious injury).

Statutory Interpretation & Mens Rea

Penal Statutes are to be construed narrowly and against the state & Require a mens rea- Morissette v. U.S

United States v. Flores-Figueroa (U.S. 2009)- Sup. Ct. uses the element analysis= applying statutory mens rea
word to every significant part of the statute. Statute made it a felony to knowingly use an identity card of
another person. Govt must prove that D knew the ID number was that of another.
-Only Federal Statutes.
MPC Approach:
2.05: attacks absolute strict liability
only use for violations
A.
(1)
(2)
(3)

Public Welfare Statutes

Regulate dangerous or deleterious devices or products or obnoxious waste materials
Heighten duties of those in control of particular industries
Depend on no mental element (consist of omissions)

Examples: Public Welfare Statutes

A. Liquor Laws
B. Pure Food Laws
C. Anti Narcotics Laws
D. Traffic regulations
To determine whether strict liability ASK: if punishment outweighs regulation of social order: IF YES=mens
rea, BUT if no and penalty is light=no mens rea

Default? No Mens Rea?

Generally, if there is no explicit mens rea requirement interpreted to include one
Determine whether it would criminalize otherwise innocent conduct? (i.e. like possessing a gun)
How intense is the punishment (i.e. imprisonment or fine)
-At least should be reckless (actually foresaw a possibility of criminal harm) and went ahead anyway.
United States v. Staples (U.S. 1994)- Silent mens rea statutes; begin with the presumption that D must act
knowingly. D was charged with failing to inform the Fed Govt. that he owned an automatically firing weapon.
Purchased gun when it was not capable of automatic firing, didnt know who altered the gun after purchase.
Major Criticisms:
A. Does not deter because person is not even aware they are committing the wrongful conduct
However, can decrease amount of people engaging in a specific behavior, and in that way benefit the
public
Over caution
B. Unjust to condemn a person who is not morally culpable
Note on Constitutionality of Strict Liability:
Unconstitutional if the elements, without the strict liability, could not themselves be made a crime
Example: Bigamy: A. marrying another person B. While being married (a person may be convicted even
if they reasonably believe that she is not married)
o Therefore: to determine constitutionality ask whether the legislature can punish someone merely
for being married to another person (no violates fundamental right to marry, thus
unconstitutional)
MPC: (1) Distinguishes between elements and material elements of a statute; (2) Reduces statutory mens rea
culpability to four mental states; (3) Adopts element analysis by applying the mental state to each material
element of a statute; (4) Adopts subjective liability (recklessness) as the default position.
-1.13 nonmaterial elements: unconnected with the harm or evil, incident to conduct, sought to be prevented

by the law defining the offense. Venue, jurisdiction, etc are not material.
Material Elements are: (a) Conduct; (b) Attendant Circumstance; and (C) Result.
Mental States: (1) Purposely; (2) Knowingly; (3) Recklessly; (4) Negligently
Purposely: A.C.: D must be aware or hope or believe (desires) that a fact is true. R: Entertain the
conscious object to achieve the proscribed result.
Knowingly: Similar to Oblique Intention; Foresees the result as highly likely but doesnt really care
whether it occurs or not. Adopts Willful Blindness.
Recklessly: Actually foresees the harm may occur (or A.C. is present). Risk must be substantial and
unjustifiable. But to be consistent with balancing test, read substantial to be of real importance NOT
highly probable.
Negligently: Code only allows criminal negligence in homicide.
C. Statutory Rape: have sex with someone that looks young at your own peril
See Garnett v. State: is there a mens rea component merely because you take that risk by having sex
with someone that looks young?
Currently: 29 states use strict liability, 18 use a hybrid approach where D can argue he reasonably
believed she was younger, and strict only applies very underage female, and two states completely
reject

Mistake
Factual Mistake: Common Law: If A thinks white powder is salt but it is cocaine, then not guilty of cocaine
transportation; MPC: Same unless statute punishes criminally negligent transportation and then only if
mistake was a gross deviation from the RPPs standard of care.
Legal Mistake: Common Law: Never okay; MPC: If constituting a reasonable reliance upon the agencys
advice, would likely be a defense under the Code.
-Ignorance of the Law is No Excuse- People should know the law and not act until they do.
Mistake of Law usually held to be irrelevant to guilt.
United States v. Cheek (1991 U.S.)- Even an unreasonable mistake of law could negate liability. Cheek was
told that his wages constituted income for tax purposes. Told by crazies and lawyers that improper
interpretation of tax laws. Claimed honest reliance on advice.
-Should have instructed jury that reliance, however unreasonable, on any advice would exculpate.
Excuse NOT justification.
Exceptions: Specific Intent Crimes: Under common law, can be a valid defense. Ex. Larceny- A takes Bs
car thinking it is his. A is not guilty of larceny because larceny requires that one intends to take the property of
another. Since A thinks that he is the owner of the car, he has not intentionally taken property he knows to be
anothers.
MPC: 2.02(9) retains doctrine; neither knowledge nor recklessness or negligence as to whether conduct
constitutes an offense or as to the existence, meaning or application of the law determining the elements of an
offense is an element of such offense unless the definitions of the offense or the Code so provides.
CAN MAKE THE CLAIM IF: statute/regulation has not been published or otherwise reasonably
made available to the D. 2.04(3)(a)
OR Reasonable Reliance: 2.04(3)- Official statement of the law (later determined invalid) if contained in (i)
statute or other enactment; (ii) judicial decision, opinion or judgment; (iii) an administrative order or grant
of permission; or (iv) an official interpretation of the public officer or body charged by the law with
responsibility for the interpretation, administration or enforcement of the law defining the offense.
-The above is often interpreted very strictly (Official)
Interpretations provided by lawyers is NOT excuse: too much opp. for collusion.
Mistake/Ignorance of Law is an excuse IF: negates a required mental element of the crime.

Generally, to promote respect for laws and safety: mistake of law is not a permissible defense:
unless it is a specific intent crime OR the statute is later overturned
o (People v. Marrero where the federal officer carried a gun in his reasonable belief that he was a
peace officer): general intent. Guilty
-Very Harsh! Any broader view fosters lawlessness.
-Under MPC, also guilty because 2.04(3) does not allow mistakes of law that are
simply the Ds personal misinterpretation of law (only official misinterpretations).
o (Cheeks mistake of law defense permissible tax evasion): specific intent
Exceptions:
o A. Ignorance of law: Due Process requires notice
(See Lambert (1957)- D convicted under an ordinance making it unlawful for any
convicted person to remain in L.A. more than 5 days without registering with the police
department. Ordinance violated notice requirement of due process when applied to a
D with no actual knowledge of his duty to register).
Cheek v. U.S. (1991)- Statute made it an offense to knowingly attempt to evade payment
of income taxes. Guilty because Cheek knowingly violated law (knew had to pay taxes).
o B. Entrapment by Estoppel: (See Commonwealth v. Twitchel)
o (1) D reasonably believed on an official statement of law
o (2) Later determined to be wrong (codified by MPC 2.04) interpretation must be
obtained from one charged by law with responsibility for the interpretation,
administration, or enforcement of the law defining the offense. Ex. Chemical company
could rely on a Corps. Of Engineers interpretation that the River & Harbor Act only
prohibits water deposits that affect navigation (Corps is the responsible admin agency
under the Act).
o Ex. Cox v. La (1965)- demonstrators may not be constitutionally convicted for parading
near a courthouse after the highest police officials of the city told them, in effect, that
they could lawfully meet 101 feet from the courthouse steps.
C. Knowledge of Law as Element of Offense (rare)

Mistake of Fact can negate (or make mens rea never appear).
Retributivist: Not morally blameworthyUtilitarian: Will not deter anyone from doing what they believe to be innocent acts
Common law:
A. Specific Intent: D must act in good faith, even if unreasonable (People v. Navarro- D in good faith
believed the beams were abandoned)
-Willful Blindness- Duty to inquire when the facts are highly suspicious. Typically a negligence
standard, convicted if a jury feels that D should have known.
B. General Intent: a mistake of fact will only be recognized if it is reasonable
Exception: moral wrong doctrine: permitting a conviction if the defendant was culpable according
to the moral wrong doctrine (Regina v. Prince D reasonably believed the girl was over 18)
o ASK: whether the conduct is immoral, because if yes you assume the risk that the attendant
circumstances may be different than you expected
Exception: Legal wrong doctrine: if Ds conduct, based on the facts as he believes them, constitutes
a crime, not merely an immorality, he may be convicted of the more serious offense
MPC 2.04
Defense if mistake negates a mental state element required in definition.
Dispenses with specific and general intent distinction.
Exception: Inapplicable if D would be guilty of lesser offense had facts been as she believed
them to be. D will be punished at the lesser level, not the greater. (no legal wrong doctrine)

Reasonable Mistake of Law

Unreasonable Mistake of Law
Reasonable Mistake of Fact
Unreasonable Mistake of Fact

Statute Requires Specific Intent

Exonerates
Exonerates
Exonerates
Exonerates

Statute Requires General Intent

Guilty
Guilty
Exonerates
Guilty

Ex. A creates widgets that release crud. Always disposes this in the dump. EPA now requires specific disposal
procedures & allows prosecution if willfully disposes, but A continues to dump. Common Law: Ignorance
of the regulation is no defense. Some Courts read willfully to be specific intent (has a claim) while others see
it as voluntarily (no claim).
Cheek: Federal Regulation; willfulness requires a specific intent. So Govt. must prove that A knew that
he had a duty to dispose of the crud in a specific way (but these cases deal with statutory interpretation,
so not binding on state courts). Under MPC: As ignorance, no matter how reasonable, is irrelevant.
Note: If no willfully, then likely no excuse.

Strict Liability
Ex. G typically cards every new customer. H gives a union card that says 24 (easily forged and may not be
reasonable to rely). Assume H looks 24 but is 17 & G acts reasonably. Under SL, Gs reasonableness is
irrelevant. G is guilty of serving a minor. What if H had forged a drivers license, birth certificate, college id,
etc DOESNT MATTER! G is still guilty.
Rationale: (1) Legal PositivismLegislatures are unrestrained in their ability to proscribe conduct and did not
have to require mens rea.
(2) There is a compelling need to protect society, particularly minors, against certain evils (sex, liquor,..)
and it is too hard to prove a mens rea.
Staples v. United States (1994 U.S.)- Limited reach of SL federal crimes to those that were both (1) dangerous
(drugs, grenades, or explosives, etc) and (2) highly regulated and, by their nature, would alert the D to the
possibility of regulation, thus putting her under a duty to inquire about these regulations and ensure compliance.
Against SL Crimes: Authorizes the criminalization of the morally innocent.
Alternatives: (1) Restrict SL only to fines and preclude loss of freedom as a sanction. To deter, could add
a crime of recklessness: and severely increase the penalty.
(2) Require the state to prove negligence.
(3) Permit the state to prove its prima facie case on the basis of SL, but then allow D to avoid conviction
by proving that he was not negligent.
Constitutionality of SL: SC has not rendered a decision but:
Lambert v. California (1957 U.S.)- Conviction of an ex-felon for not registering with the police in L.A.
(as required by a city ordinance) violated the 5th & 14th Amendments because there was no showing that
the D knew, or should have known, of a duty to register.
Hasnt caught on, why?: Involved a city ordinance (not state statute); imposed a duty to register
rather than a duty not to do something.
Methodology: (1) MPC? Then remember that statute cannot impose SL if there is possibility of imprisonment
(2) Determine that the statutory word is a material element and not a sentencing factor nor a mere element
of the crime. If it is either of the latter two, done.
(3) If the statute contains a mens rea word, then it is likely that the mens rea word modifies all material
elements of the offense. (See X-Citement Video).
(4) If the statute does not contain any mens rea word, then:
A) If it prohibits something like a common law crime, it is probably NOT SL (Morissette)
B) If it carries a severe penalty (more than a year imprisonment), probably not SL.
C) If involves a complex regulatory scheme, it may be SL as long as (A) & (B) are not true.
D) If D would have been guilty of a crime even under facts as he supposed, then SL on the greater
crime theory.

Most of all, pay attention to the statute.

Causation
Show that: Ds action directly brought about the resulting harm. Must have both Cause In Fact & Proximate
(1): Actual Harm
A. But-for test harm would not have occurred unless the D engaged in the conduct.
o But for Ds voluntary act
o Can be an omission (failing to intervening with a harm that was avoidable)
B. Substantial Factor Test Concurrent Causation (can replace but-for)
o Apply if each Ds action alone was enough to constitute the social harm
o Was the voluntary act a substantial factor in causing the social harm?
o MPC only uses but-for test
Ex. A & B shoot C at the same time with intent to kill him. Each bullet inflicts a mortal wound (each has
been the cause of Cs death, despite each independently could have caused death).
People v. Arzon (N.Y. 1978)- D started a fire on the 5th floor of an abandoned building to keep warm.
Firefighters responded. B started a fire on the second fire & trapped firefighters. V (firefighter) sustained
smoke injuries from both fires and died. D set the chain of events in motion. Satisfies but for.
In Oxendine where the medical experts could not determine whether D1 or D2 caused the injury: could
not constitute manslaughter
(2) Proximate Cause: If you satisfy but-for test, should you be liable for the social harm?
TEST: Based on policy considerations or matters of fairness, is it proper to hold D criminally
responsible for the social harm? Was there an intervening cause?
o Language from People v. Rideout: a legal construct designed to prevent criminal liability from
attaching when the result of Ds conduct is viewed as too remote or unnatural
When do issues arise?
o When something occurs in between Ds voluntary act, but before the social harm <Intervening Cause>
Proximate Cause established if I.C.: (1) Intended or Reasonably Foreseeable; AND (2) Not too remote
or accidental as to fairly hold the D responsible.
o Examples:
o (1) An act of god
o (2) An act of an independent third party
o (3) An act or omission of the victim that assists in bringing about the outcome
How do we determine whether an intervening cause is superseding?
Note: An omission can never function as a superseding intervening cause
o failure of C to wear seat belt does not absolve drunk driver A for killing C in a car accident
Dependent Intervening Cause: Intended or Reasonably foreseeable by the D (or sufficiently related to his
conduct) to impose criminal responsibility for causing the harm.
Ex. D forces V into car & says he will rape her. V jumps out of the moving car & injures herself.
Her jump is a dependent I.C. because it is expected that a victim will take serious risks in trying
to escape from captors. D proximately caused Vs injuries.
Independent Intervening Cause: Even though Ds conduct set in motion the chain of events that produced
the harm (but-for), another actor/event causes the harm in such an unexpected or unusual manner that the
D will not be held criminally responsible.
Fact-finder MUST conclude that: (1) harm was not intended by the D or was not reasonably
foreseeable; OR (2) Simply unfair/unjust to hold D responsible for the harm that has occurred.
Ex. D inflicts a minor wound on V and V is driven by friend to doctors office for stitches. While
sitting in the waiting room, a patient shoots everyone in the waiting room. Ds assault is cause in
fact but the shooting is just bad luck.
Shortcut Doctrines to Determine Causation:

A. De minimis
-Is Ds causal responsibility exceptionally insubstantial in comparison to the intervening cause?
B. Foreseeability (People v. Rideout- D entering roadway objectively foreseeable?)
-Was the intervening act reasonably foreseeable? Foreseeability doesnt require subjective
knowledge that the I.C. could bring about the harm, only that D should have known.
-Responsive I.C.s: action that occurs in response to Ds prior wrongful act
-Generally, does not relieve of liability unless the response was unusual or bizarre
(idea that initial wrongdoing caused the response)
Ex. Police officer giving chase to a bank robber dies in accident. Proximately caused!
-Coincidental: Ds initial wrongful act placed D in a situation where the intervening cause could
independently act on him
-Wrong place wrong time
-Generally, relieves the original wrongdoer of criminal responsibility unless the
intervention was foreseeable
C. Intended Circumstances Doctrine
-Test: Did intentional wrongdoer get what he wanted, even if unforeseeable event intervened?
-Regina v. Michael- Intent: M wanted death of son: tried to give nurse medicine which was
poison, nurse did not actually give it, negligently left it somewhere, another person gave to son:
Result: Son died of poisoning just not quite in the manner D intended
D. Apparent Safety Doctrine- People v. Rideout- D reached a position of safety (the side of the road),
and then voluntarily chose to reenter the roadway
-Test: Did victim make a decision regarding his actions after immediate danger was over?
E. Free-deliberate Informed Human Intervention
-D is more apt to be relieved of criminal responsibility in the case of a free, deliberate, and
informed intervening human agent
-People v. Kevorkian (MI 1994)- No causation because Kevorkian simply furnished the means
for causing death, but the deceased, as a responsible agent, then had to choose to commit the
final, overt act that directly killed him. (But had Kevorkian assaulted deceased or did something
to influence rational decisions, then maybe could be causation).
-Velasquez v. State-drag race ended: V voluntarily turns car around & speeds through guard rail
Unforeseeable Human Action: If a D swindles X out of her life savings and X commits suicide,
probably an independent I.C. Is it foreseeable that a fraud victim would take his life?
No Contributory Negligence in Criminal Law.
F. Preexisting Conditions and Negligent Medical Treatment
Most jurisdictions consider a victims preexisting medical condition as a dependent I.C.
-People v. Stamp (Cal. 1969)- D proximately caused Vs death during armed robbery. V was 60
years old, extremely overweight, and had a history of heart disease.
-Expect medical care to be furnished to individuals who have been assaulted, so possibility of
negligent medical care is a fact of life (dependent I.C.). Must be more than just negligent
medical care.
-Grossly Negligent / Reckless Medical Treatment can be an independent I.C.
MPC: Transforms analysis of causation into an inquiry about the Ds culpability.
But For Causation: Typical Common Law analysis. No causation IF harm would have occurred without the
Ds conduct.
Culpability: Compares what actually happened with what D thought or should have thought would happen.
-If these are not aligned, apply 2(a),(b) (purposefully/knowingly) or 3(a),(b) (recklessly/negligently)
2(a)- NOT responsible unless (i) a different person or property was harmed; or (ii) D actually caused a
lesser harm than contemplated. (i) is like CL transferred intent.
2(b)- Even if aligned, not responsible if unusual & unexpected causal mechanisms actually caused
the harm. Allows factfinder to conclude that mechanism causing the harm is too coincidental/
unexpected to impose liability.

2.03(3)- Same as above for recklessly/negligently.

2.03(4)- SL crimes. Actual result must be a probable consequence of the actors conduct.
Causation Examples: 1) L was drunk and slammed into R. R placed on life support. R had made it clear she
did not want to be on life support. Made it clear she didnt want to live in her condition. Removed from life
support. L has but for causation (had he not driven while intoxicated and recklessly crossed into her lane, she
would not have been severely injured and required life support). Is her removal from life support a
dependent/independent I.C. of her death?
Defense: Removing life support caused Rs death. Removal was unexpected and out of the ordinary in
relation to Ls conduct. R was a competent and responsible decision maker. So independent I.C. In a
MPC jurisdiction, argue that Rs death was too dependent on anothers volitional act (Rs decision).
Prosecutor: Jurisdiction recognizes an indivs right to refuse med treatment and, consequently, Rs
decision cannot be considered unexpected OR extraordinary. Since Dr.s had no duty to continue life
support, the ending of life support was clearly foreseeable. Dependent I.C. that did not break the causal
chain of responsibility.
2) H jumped off office building. J was angry at C and shot bullet at C. C moved and it went through window
hitting H. H died mid-flight. Is J guilty? J has directly caused Hs death. Js intent to kill C transferred to H.
Despite the low chances of this happening, can be prosecuted for intentional homicide. MPC may allow jury to
conclude that the causal mechanism of his death was too remote or accidental.
What if H was pushed by I? I would argue that the manner in which H died was unforeseeable and accidental
(independent I.C.). Prosecutor: Concurrent causation. J merely hastened an inevitable result. 2 independent
causal agents must bear joint responsibility for causing Hs death. Both have but for causation, too.

Homicide
Unjustified and unexcused killing of a human being.
Common Law:
Defined: Killing of a human being by another human being with malice aforethought
o Defining Malice:
(1) The intent to kill
(2) The intention to commit grievous bodily harm on another
(3) An extremely reckless disregard for the value of human life (depraved heart murder)
(4) The intention to commit a felony during the commission or attempted commission of which death
results
Homicide
Killing of a human being by another human
being with malice aforethought

Manslaughter
Unlawful killing of a human being by another
human being without malice aforethought
(1) Voluntary: really intentional: heat of
passion with adequate provocation
(2) Involuntary: unintentional:

MPC
Homicide: person unjustifiably and inexcusably takes the life of another purposefully
Recognizes:
A. Murder
B. Manslaughter
C. Negligent Homicide
Defining Human Being:

Keeler v. Superior Court (Cal. 1970)- D purposely kicked former wife, whom he knew was pregnant, in the
abdomen, threatening to stomp it out of you. Fetus died. Court said fetus was not a human being. Cal.
Legislature created a separate offense (feticide). Other legislatures have broadened the definition of person.
o Common Law/Majority: fetus becomes a human being at birth, brain dead=dead
o Minority: treats a viable and sometimes non-viable fetus as a human being
o People v. Ehlo brain dead=dead: (only time D may be superseded is if doctor prematurely announced
death as a result of doctors gross negligence or intentional wrongdoing)
How close in time must the death be to the infliction of the injury?
Year-and-a-day-rule: D may not be prosecuted for criminal homicide unless D dies within a year and a day of
the infliction of the injury (rarely used)
o 41 years after fatal infliction, victim died of UTI; prosecutor charged 72 year old w/ murder
Variations on the Theme: Some Homicide Statutes
- California: murder defined; malice, express malice, and implied malice; murder, degrees;
manslaughter; murder and manslaughter, time of death, computation.
- Illinois: first degree murder; intentional homicide of an unborn child; second degree
murder; voluntary manslaughter of an unborn child; involuntary manslaughter and
reckless homicide; involuntary manslaughter and reckless homicide of unborn child.
- Michigan: first degree murder; second degree murder; manslaughter; manslaughter,
willful killing of unborn quick child.
- New York: definition of terms; criminally negligence homicide; manslaughter in the
second degree; manslaughter in the first degree; murder in the second degree; murder in
the first degree.
- Pennsylvania: criminal homicide; murder: first, second, third; voluntary manslaughter;
involuntary manslaughter; causing or aiding suicide.

Murder
England: Murder was killing with malice aforethought. No degrees under common law. Meant an
intentional, preplanned, deliberate killing, motivated by ill will (malice) toward the victim.
-Extended definition to include extremely reckless or wanton conduct. Malice no longer reqd intent.
People v. Knoller (Cal. 2007)-Defined as an act which is dangerous to life, deliberately performed by a person
who knows that his conduct endangers the life of another and who acts with conscious disregard for life.
Purpose of common law degrees of murder: a means to distinguish between more or less culpable
punishments, idea that not all murders are equal:
MPC
Common Law
Rejects degrees of murder approach
Originally, no degrees of murder: murder was a
Premeditation & deliberation are not elements
capital offense
One degree of murder- all murderers are death
Today, murder is often divided into degrees: first
eligible.
degree capital offense
Homicide ranked by mental culpability
A. Willful: specific intent to kill
A. purpose/knowledge=murder
B. Deliberate: intentional cool purpose
B. reckless and manifest indifference to
(think quality of thought process)
life=murder
C. Premeditated: think beforehand (quantity):
C. reckless=manslaughter (depraved heart)
(See Guthrie the murder must take place after
D. culpable= negligence
a period of time for prior consideration)
Note: many jurisdictions only require deliberation
to momentarily precede act of killing
Michigan Approach:
A. Deliberation: measure & evaluate the major facets of a choice or problem
B. Premeditate: to think beforehand

 While the minimum time necessary to exercise this process is incapable of exact determination,
the interval between initial thought and ultimate actions should be long enough to afford a
reasonable man time to subject the nature of his response to a second look
Maryland Considerations to determine whether premeditation and deliberation exist:
(1) D provoking
(2) Conduct and statement by D before and after the killing
(3) Threats and declarations of D during the course of occurrence leading to killing
(4) Previous history between parties
(5) Lethal blows after D rendered helpless
(6) Evidence that killing was done in a brutal manner

First-Degree Murder
Murders that are premeditated, willful, and deliberate. Note: need not be depraved nor wicked!
(1) Thought about killing their victim (premeditated); (2) brooded over it for some significant period of
time (deliberated); and (3) then killed willfully.
People v. Anderson (Cal. 1968)- Elements tending to show the requisite premeditation & deliberation:
(1) planning activity; (2) motive; and (3) manner of killing (combine to establish that the D acted with a
preconceived design.

Second-Degree Murder
Murder (committed within the broadened notion of malice aforethought) and not premeditated.
1) Was the killing a murder (done with malice aforethought)?
2) If so, was it premeditated, deliberate, and willful?
3) If yes, it was first-degree murder; if not, second-degree.
Doctrine of Lesser Included Offense:
Generally, D has the right to jury instruction in a lesser offense included within the offense charged
Example: D is entitled to second degree murder instruction if a juror could rationally conclude that he
acted with the requisite malice for murder, but the killing was not deliberate or premeditated
Premeditation/Deliberation Formula at work
Midgett v.
Brutally beating child: D not guilty of second degree murder because evidence
State
does not support that he deliberately and premeditatedly killed his child: second
degree murder
State v.
Son kills his father, shoots him four times, stops his suffering: first degree
Forrest
murder
Traditional criticism: the distinction does not reliably distinguish between more or less culpable
killers
Another justification: When a murder is premeditated and deliberate, it is much more likely that the
murderer not only thought about the crime, but also developed a plausible means of avoiding,
delaying detection
o Thus: means to identify those killers most likely to escape or significantly delay detection
Ex. R knows she is drunk but attempts to drive home. She kills two. No depraved heart murder. But some courts
have allowed second-degree murder charges to go to the jury (at least where it can be shown that the D was
excessively drunk and had been warned and cautioned about his driving).
Ex. A wants to commit suicide. Explosion kills four neighbors but A survives. Guilty? Prosecutor: D had a
desire that death occur, so guilty of purposeful murder. Also, since D premeditated (his own death), the
prosecution could contend that this was first degree. Defense: suicide is not a crime. Since the D did not intend
any other persons death, there was no transferred intent because there was no criminal intent to begin with.

Also, D (only wanted to kill self) so no common law depraved heart nor MPC extreme recklessness.
Maybe mental instability or incapacity argument as well.

Manslaughter
An unlawful homicide without malice aforethought: Can be subdivided into voluntary & involuntary
Heat of Passion // Voluntary Manslaughter
Killing done on a sudden in the heat of passion after adequate provocation.
Legally Adequate Provocation: In the 19th Century,
o (1) Battery, mutual combat, or aggravated assault
o (2) Adultery- highest invasion of (his) property
o (3) Illegal Arrest
o Typically, words alone were never enough.
o Heat: whether could claim heat of passion was a matter of timing.
Legally Adequate Provocation: TODAY
o Anything that could cause a RPP to act in passion. Test: Whether X is enough to inflame the
passion of a RPP so that he/she would be infuriated enough to act?
Could be just words, but Girouard v. State: mere words in the absence of conduct
indicating a present intention & ability to cause D great bodily harm does not constitute
adequate provocation
Note: Some courts consider informational words more provoking
RPP usually has many of the physical characteristics and experiences of the D. (Ds age,
gender, physical statute, physical disabilities, lack of sleep, etc). BUT typically cannot
consider Ds psychological characteristics.
o - Procedure: Traditionally, judge would have to determine whether the provocation fit into a
legally adequate category, today largely left to jury
Suddenness (has the D cooled off?)
o Unavailable to a person who killed after he had a reasonable opportunity to cool
o Up to the jury
o Allows Brooders- anger increases over time.
o Allows for a Cooled Off Person who is rekindled by provoker or words
Ex. V sodomizes D & escapes, only to be seen by D some days, weeks, or months later,
whereupon D immediately kills V, there is a likelihood that D will be found guilty of
manslaughter rather than murder.
Causal connection between provocation, passion, final act
Criticism of Heat of Passion: Doctrine indulges male hierarchies.
-TX Reform: Entire issue of heat of passion & provocation left to the sentencing stage (a killing is a
felony of the first degree, but is punished as a felony of the second degree if the D, at sentencing, shows
by a preponderance that it was under the immediate influence of sudden passion arising from an
adequate cause.
Involuntary Manslaughter // Homicide committed in a Criminally Negligent Manner
Either merely reckless (but not the result of depraved mind) or criminally negligent killing.
People v. Strong (1975)- D intentionally stabbed victim with hatchet & 3 knives. Based on prior experience
& religious beliefs, he truly believed that he could do so without harming the victim. These characteristics
should be part of jurys RPP standard (D could be liable only for criminally negligent homicide).
State v. Williams (1971)- (Statute appeared to employ tortious negligence standard for manslaughter)
properly refused to consider Ds characteristics: (1) poorly educated; (2) unaware that childs tooth infection

could lead to gangrene and death; (3) imbued with certain cultural beliefs; and (4) fearful that reporting the
childs illness to the authorities might result in having the child removed from the home permanently.
Note: Defining the RPP
To what extent, if any, should the RPP, in evaluating provocation be instructed that the RPP possesses the
Ds own personal characteristics and personal experiences?
o Bedder: RPP is an impersonal figure to which no specific characteristics of D should be attributed
o Camplin: the RPP is a person having the self-control to be expected of the ordinary person of the
sex & age of the accused
o Commonwealth v. Carr: man kills 2 women on a hike having sex, wants to show his past of constant
rejection by women & his own mother as a lesbian: BUT court held: psychosocial history irrelevant
o The cultural perspective: Regina v. Gibson- D killed an aboriginal who told secrets about the
religion to outsiders: in that case: the jury instruction included: one must think of a reasonable
person as having the awareness, the timidity, the ordinary reactions of a tribesman..
Pakistani man strangled his adult daughter when she wanted out of her arranged marriage
o The Sex of the Reasonable person: should a woman have a reasonable woman instruction?
(remember women generally respond differently than men to provocation)
POLICY: THE PROVOCATION (Heat of Passion) DEFENSE
Joshua Dressler: Is the provocation defense a partial excuse or partial justification?
A. Excuse: Person not acting himself and should be partially excused because he is similar to, but
not identical with, one claiming diminished responsibility or insanity.
Justification: While the anger is justified (the victim did something which would upset a
reasonable person) & is therefore partially justified, the conduct (actually using deadly force) is
excessive & cannot be justified, so D is excused.
MPCs extreme emotional disturbance provision weakens the justification contention, since the
MPC does not require the victim (or someone else) provoke the D.
In Sum: The provocation defense seems to fit in both justification and excuse.
Joshua Dressler-Why keep the provocation defense?
Potentially contains a justificatory feature: whether the provoked partys anger is within the
range of expected human responses to the provocative situation
Excusable loss of self-control
The provocation must be serious enough that an ordinary person in the actors circumstances
might become sufficiently upset to the point where he loses self-control and acts violently
The idea that an angry person cannot fully control himself is what mitigates, but not eliminates
the actors moral blameworthiness
Akrasia: the distinction between a person acting in defiance of the law, and who less culpably violates the law
MPC Manslaughter
Killing which would otherwise be murder is manslaughter if it is done under extreme emotional or mental
disturbance for which there is a reasonable explanation. [more malleable definition].
-No cooling off period.
-Reduction is not a matter of right.
-Does not require provocation at all!! Just must be extreme emotional disturbance.
-Any impetus for disturbance is sufficient: taunts, words, etc
-Likely requires expert witnesses (psychiatrists) to prove EED.
People v. Cassasa: (1): subjective: particular D must have acted under the influence of EED
(2) objective: reasonable explanation or excuse for the EED judged from Ds perspective (built
in mistake of fact)

Misdemeanor-Manslaughter Rule
An unintentional homicide that occurs during the commission of an unlawful act not amounting to a felony
constitutes common law involuntary manslaughter.
Criticism: Can be charged with manslaughter even if their conduct does not create a perceptible risk of death
In response: many states limit the applicability to dangerous misdemeanors
Led by MPC many states have abolished the doctrine
1. State v. Hupf: Automobile driver who non-negligently causes the death of a pedestrian because they fail
to stop at a stop sign: liable for misdemeanor manslaughter
2. Michigan: Guy driving one mile over the speed limit who hits someone, may be liable for manslaughter
3. Commonwealth v. Mink: D attempted to kill herself, when someone tried to take the gun, she accidently
killed them (here liable for not unlawful conduct, but immoral conduct)

Unintentional Killing; Unjustified Risk Taking

Depraved heart murder: reckless or extremely reckless homicide
Defining the state of mind: An utter callousness toward the value of human life & a complete and total
indifference as to whether ones conduct will create the requisite risk of death to another
How to draw the line between murder and manslaughter?
o Unjustified risk raking
o Reckless (manslaughter) vs. extreme recklessness (second-degree murder)
A. People v. Moore: D angry because his house was burglarized, he is driving 90 MPH strikes another car,
does not even try to stop because of his speed: second degree murder implied malice
B. People v. Knoller: malice either express or implied
o Express: deliberate intention to take away the life of another
o Implied: no considerable provocation appears OR when the circumstances attending the killing show
an abandoned or malignant heart
o Implied malice requires awareness of the risk of death to another
o The Phillips Test: malice is implied when the killing is proximately caused by an act,
the natural consequence of which are dangerous to life, which act was deliberately
performed by a person who knows that his conduct endangers the life of another and
who acts with conscious disregard for life
Common Law
-Extreme recklessness (depraved heart murder): malice aforethought implied by conduct=2nd degree murder
o Person acting with intent to cause grievous bodily injury liable for murder if she accidently kills another
o Generally requires criminal negligence: aggravated, gross, culpable, reckless
Policy:
Utilitarian: reduce risk: but promoting awareness
Retributive: the actor knowingly created the risk, threatening social harm
MPC 210.4 (involuntary manslaughter at common law-lesser offense of negligent homicide
under MPC)
(1) Criminal homicide constitutes negligent homicide when it is committed negligently
(2) Negligent homicide is a felony of the third-degree
Manslaughter:
Reckless is enough
Murder:
Extreme indifference to human life is enough
**A person acting with intent to cause grievous bodily injury is a factor in determining if actions
were reckless, extremely reckless and manifesting extreme indifferent to human life

Ex. G does not know that both of his taillights are out. L collides with car from the rear and kills
Gs passenger. Driving without operative taillights is a SL misdemeanor. Under the
misdemeanor-manslaughter rule, G is guilty of involuntary manslaughter (even if his failure to
be aware of taillights is not negligent). MPC would require proof that Gs failure to know of the
situation was grossly deviant from the actions of a RPP.
-Note: Misdemeanor action must have a causal relation to the injury!

Felony Murder
Felony + Killing= Murder
Generally, if death results from conduct during the commission or attempted commission of any felony
-Imposes liability for murder whether a felon kills intentionally, recklessly, negligently, or even
non-negligently. It is a form of SL- Prosecutor need not prove mens rea with regard to death.
o Still exists today: but in a more limited form
o Most modern statutes: death that results from specifically listed felony (such as arson, rape,
robbery, or burglary): first degree murder
If unspecified felony: second degree murder
Policy
Justifications For
A. Deterrence: deter negligent and
accidental killings during a felony
B. Reaffirms the sanctity of human life: a
felony resulting in human death is more
serious and thus deserves greater
punishment (greater debt to pay than
someone who did not take a life)
C. Transferred intent: felons intent to
commit felony, transferred to intent to
commit murder
D. Eases prosecutors burden to prove
malice aforethought: all that must be
proven is felony

Justifications Against
A. Deterrence: how does one deter an
unintended act?
B. Does preserving the sanctity of human
life really require the same punishment
as one reserved for murderers?
Consider actors culpability, and not just
the harm
C. Confuses transferred intent: because
here it is transferring a smaller social
harm to a greater social harm

MPC 210.2
Murder: such recklessness and indifference are presumed if the actor is engaged or is an
accomplice in the commission of or an attempt to commit, or flight after committing or
attempting to commit robbery, rape, or deviate sexual intercourse by force, or threat of force,
arson, burglary, kidnapping, or felonious escape
Limitations:
1. Inherently Dangerous Felony Limitation: similar to extreme reckless concept of malice but here
malice aforethought as a matter of law
o To limit the potential harshness and a result like in People v. Fuller (D charged with murder
when his felony was not dangerous) the rule is only applicable to homicides that occurred
during the commission of a felony dangerous to human life
o Two approaches:
A. Ignore the facts of the specific case, and consider whether felony is dangerous in the abstract
Test: Whether the crime by its very nature cannot be committed without creating a
substantial risk that someone will be killed?
Policy: prevents courts from applying the rule based on the facts of the case, despite potential
unfairness to D

 People v. Howard where high speed chase that kills another driver not inherently
dangerous in the abstract. While Ds conduct was inherently dangerous, he could
have violated the statute in a nonviolent way. All ways of violating a statute
must be inherently dangerous (prosecutor should have charged w/ depraved heart)
Burroughs where a 77 year old healer who convinced a patient to forgo
traditional medical treatment was not convicted of felony murder
Inherently Dangerous
Not inherently dangerous
a) Falsely practicing medicine
a) Shooting at an inhabited dwellin
b) False imprisonment by violence
b) Poisoning with intent to injure
c) Possession of a concealable firearm
c) Arson of a motor vehicle
d) Grossly negligent discharge of a
vehicle
B. Determine the dangerousness by considering the facts & circumstances of the particular case
to determine if such felony was inherently dangerous in the manner & circumstances in
which it was committed
o Policy: if the felonious conduct makes death a foreseeable consequence, ensures
adequate malice that qualifies as murder
2. Independent felony or merger limitation
o Predicate felony must not be one involving personal injury but have a purpose other
than inflicting harm.
o Test: Was the principle purpose of the felony to assault the victim? Was there an
independent felonious purpose? Is it the type of behavior that deters accidental or
negligent conduct?
o Policy: Can only deter if D has a felonious purpose independent of the assault
o People v. Smith: Assault of Ds daughter resulted in her death. The underlying
felony unquestionably integral part of the homicide & does not deter accidental or
negligent conduct
o People v. Chun: CA new rule: If the underlying felony is assaultive in nature,
felony merges with the homicide
Assaultive defined as: a threat of immediate violent injury
Mayhem is also a consideration.
Looks to elements not facts of case
If elements of crime have assaultive aspect, crime merges with underlying
homicide even if elements also include conduct that is not assaultive
Legislatures have responded with specific statutes regarding certain crimes
(like child abuse).
o Ex. Burglary (breaking and entering with the intent to commit a felony therein).
Typically the felony is theft. But if felony is life-threatening, could merge and
then no felony murder.
3. Duration & Causation Limitations
A. Time: relatively close proximity in terms of time and distance between felony and homicide
o Most courts hold that the murder can occur after the felony as long as the felony and
homicidal act can be interpreted as one continuous transaction. Felony can come to rest.
o People v. Matos: felony murder applies where robber flees to a rooftop and police in pursuit
falls into an airshaft and dies
o People v. Gillis: felony murder applies where perpetrator of a home invasion, fleeing from a
police vehicle, collided with a civilian car ten miles and ten minutes away from scene of
accident

o It matters when the killing conduct occurred, not the death itself
Ex. A robs a store and pushes V when trying to leave. This occurs during the felony. BUT if
A robs a store, rests at home for a while until police come, then exits the back door and
pushes V, not occurring during the felony so no felony murder.
-Does an arrest cause a felony to come to rest? What if there are accomplices?
1) Yes; doesnt matter what accomplices do (State v. Milam (1959 OH))
2) No; felony continues until everyone is arrested (or felony comes to rest some other
way) (State v. Hitchcock (1960 AZ))
3) Maybe; depends on the particular facts of capture, surrender, or arrest (Auman v.
People (2005 CO)).
B. Causation: logical nexus between homicidal act and felony
o Relationship must be more than merely coincidental
o Ex: If D robs a store & person is unaware of the robbery & drops dead: not felony murder
o Ex: Person is in felonious possession of a gun, strikes & kills a pedestrian (no link)
4. Killing by a non-felon
o Type 1: Many states apply the agency approach: which limits felony-murder to cases in which
the actor actually commits the murder
o Exception: If the person is acting as an agent of felon, then the felony-murder rule is applicable
o Policy arguments:
o Not w/in rae gesta: since killing was in resistance to, rather than in furtherance of crime
o Little or no deterrent effect because the killer is a non-felon
State v. Sophophone: Police killed Ds co-felon when D was already in police
car: because police lawfully killed co-felon: applied agency approach.
o Type 2: proximate-causation approach: a felon is liable for any death that is the proximate
result of the felony
o Policy: Where Ds actions set in motion a chain of events which were or should have been
within his contemplation when the motion was initiated, he should be held responsible for any
death which by direct
o Effect & almost inevitable consequence results from the initial criminal act
o State v. Sophophone dissent: Because D set in motion a chain of events leading to cofelons death: felony-murder should apply
o NJ: liable if in the course of the commission of the crime any person causes the death of
a person other than the nonparticipants
Common Law Category
First Degree Murder

Second Degree Murder

Manslaughter (Voluntary)
Manslaughter
(Involuntary)
COMMON LAW vs. Mpc

INTENDED KILLINGS
PREMEDITATION,
DELIBERATION, AND
WILLFULNESS
Purposely or Knowingly
INTENTIONAL
Purposely or Knowingly
HEAT OF PASSION
Extreme Emotional or Mental
Disturbance (EED)

NON-INTENDED KILLINGS
STATUTORY PREDICATES OF FELONY
MURDER
DEPRAVED HEART FELONY MURDER
Recklessly under circumstances manifesting
extreme indifference to the value of human life
HEAT OF PASSION; RECKLESS
CULPABLE NEGLIGENCE
EED or Reckless
CULPABLE NEGLIGENCE
Criminal Negligence

Ex. H takes V on a date. Obtains colorless odorless drug that is intended to make V more receptive to have sex.
H did not know that drug could cause unconsciousness and death. V dies. Not Murder. (definitely not 1st
degree murder, at least). Also, under MPC, not purposeful or knowing with regard to death (and difficult to
argue that he acted under circs. manifesting extreme indifference to the value of human life).
-Not voluntary manslaughter- did not occur in heat of passion brought on by adequate provocation.
MPC: maybe gross negligence or recklessness (depending on understanding of drug). Could be
misdemeanor manslaughter because there is a battery here.
If drug is a controlled dangerous substance (possession/delivery is a felony), then has committed a felony
(doesnt matter that H didnt know it was a legally proscribed drug). But not inherently dangerous felony in
the abstract or as perpetrated.

RAPE
Taking of sexual intimacy with an unwilling person by force or without consent.
Common Law Rape: (1) Sexual intercourse by man with a woman not his wife; (2) by force or threat of force;
(3) without consent, or (4) with a victim who could not consent because she was unconscious, mentally
disabled, or of a young age, or (5) fraud in the factum.
Common Law: carnal knowledge of a woman against her will when committed. Only sexual intercourse.
o D had sexual intercourse;
o With a woman not his wife
o Using physical force or the threat of force; and
o Without her consent
Force: Generally physical compulsion or violence that effectively subdued woman. Some Cts required that
the woman must have physically resisted the D before a jury could find he used sufficient force.
-Benefits of this: Clarity to D of non-consent.
-Negatives: Victim at great risk of injury; Allowed use of force by D.
Threat of Force: Victims fear must be reasonable. Must be a threat of violence (not pecuniary threats).
Fraud: No fraud if victim understood that she was having sexual intercourse. (Flatter, promises, manipulation,
persuasion that led to sex did not render fraud). Fraud in the Inducement does not constitute rape
Fraud in the Factum constitutes rape. D deceives woman about the nature of the act.
-Ex. Gynecologist says needs to insert medical instrument but instead inserts penis= Rape.
Common Law Mens Rea:
No specific mens rea identified. Prosecutor usually had to prove intentional (knew not wife; knew force/threat)
Difficult: Consent mens rea (knew or should have known?)
-Regina v. Morgan (England 1976)- Prosecutor must establish that D knew that woman had not
consented. Husband told D to come to his house & have sex with wife. Said dont worry if she
resists. She resists. Rape is a Specific Intent Crime so intention applied to all elements.
-Here, Ds belief of consent (even if unreasonable) negates knowledge of non-consent.
Aftermath: Parliaments new rape law- P only proves D reckless as to victims non-consent.
COMPARE:-Commonwealth v. Sherry (1982)- Doctors gone wild. Take nurse to house and have
sex. Doctors say consent. V says no.
-Force: Sufficient to accomplish mans purpose of sex against will or by threats of bodily
harm, inferred or expressed, which engendered fear reasonable in the circs.
-Doctors: Must prove actual knowledge of lack of consent.
-Rule: Mistake of fact must be reasonable AND in good faith. Here, Doctors did not
include reasonableness [not in Regina] in their mistake of fact defense.

MPC: No Resistance Requirement

-Male is guilty of rape if, acting purposely, knowingly, or recklessly, has sexual intercourse (broadly defined:
all sexual penetration) with a female.
-Non-Consent; Resistance not elements of rape. Prosecution does not have to prove that D knew his victim had
not consented or that victim had resisted.
-Focus on Ds behavior not on thought process.
-Degrees of Rape: 1st Degree; 2nd Degree; Gross Sexual Imposition
-2nd Degree: 2.13.1(1)- anyone who compels the victim to have sexual intercourse by force or by
threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone.
Elements: (1) Sexual Intercourse (broadly defined); (2) by a man with a woman not his wife; (3)
by force; or (4) by threat of serious physical harm or kidnapping to the victim or a third person.
-Basic Rape (2nd Degree Felony: (1) Without her knowledge, man uses drugs or other means to
substantially impair a womans ability to appraise or control her conduct or to resist.
(2) A male has intercourse with an unconscious female or with one who is under 10 years old.
-1st Degree: If D inflicts serious bodily harm on anyone or V not a voluntary social companion of the
actor and had not previously permitted him sexual liberties. Then elevated to first degree felony.
Problematic for date rape cases (technically would just be 2nd degree)
-Gross Sexual Imposition: Male: (1) compels woman to submit by any threat that would prevent
resistance by a woman of ordinary resolution (expands type of threat; more than physical); OR
(2) Knows she is so mentally impaired that she is incapable of appraising the nature of her conduct; OR
(3) Knows that woman is unaware that a sexual act is being committed upon her or that she mistakenly
believes the actor is her husband.
-Marital immunity for husbands
-Requires prompt complaint & corroboration of the allegation; Mistake of age defense.
Modern Rape Statutes:
-Many are gender-neutral; Expanded prohibited conduct (now oftentimes called sexual assault);
-Many eliminate consent element (put it as an affirmative defense); Replace w/ force/threat definitions;
-Many have restricted the spousal immunity (no legal right to demand sex because of marriage);
Forcible Rape
Force: Typically require D to use physical force that subdues the victim or to threaten death or serious bodily
harm to the victim or to a third person.
WA: Forcible Compulsion: use of physical force which overcomes resistance or a threat of serious harm.
NY: : physical force or a threat of serious harm (does not look at victims behavior).
Commonwealth v. Berkowitz (PA 1994)- Male student removed females clothes without additional physical
force or threats; no forcible compulsion despite female saying no throughout the sexual act. Verbal resistance
is relevant to consent but not to whether the D used forcible compulsion.
(1) Non-consent and force are separate
(2) To prove force either a) female must physically resist and have that resistance overcome OR b) actual or
threat of force that a reasonable person would fear grievous bodily injury if they resisted
People v. Iniquez (Cal. 1994)- D met V for first time earlier in evening. Awakened her from sofa and raped her.
She did not resist because she was afraid. Fear element met because womans fear of bodily harm was
reasonable under these circumstances. California does not require additional force; V need not resist as long as
V honestly and reasonably fears immediate and unlawful bodily injury.
Rusk v. State (1979)- V drove D home after night out. Would not get out of car. Took her keys. V kept asking to
leave. V must have reasonable fear (reaction to threat of force not reasonable here because her look
cannot be sufficient evidence of a threat). Reversed by Court of Appeals (reasonableness of fear should be a
question for the jury).
Policy Criticism of Resistance Requirement:
Some womans response is too freeze

Resisting can escalate harm to female victim

In response, many states today only require reasonable or earnest resistance (Cal.)
Verbal Resistance should be enough
Inherent Force: Some states do not require additional force.
NJ: Sexual assault if sexual penetration by D uses physical force/coercion but victim sustains no severe
personal injury.
[Extreme Minority] New Jersey in Interest of M.T.S. (1992)- Physical Force= Any unauthorized sexual
penetration (no additional force required). Sexual assault unless D reasonably believed that V had freely given
affirmative permission.
Recognizes Rape as a crime vs. personal autonomy rather than a crime of violence. (V friendly)
Non-physical Force: CA criminalizes sexual intercourse if accomplished by duress or menace. Other states
look at coercion, extortion, position of authority
BUT: State v. Thompson (Mont. 1990)- D did not sexual assault where, as high school principal, intimidated a
student to have sex by threatening to prevent her graduation. Requires physical compulsion.
No Force Requirement?: States beginning to criminalize sexual intimacy obtained without affirmative
permission. Typically a lower degree of rape/sexual assault. Benefits: Afford maximum protection to the right
of individuals to decide when and with whom they will share sexual intimacy. Drawbacks: May result in
conviction of Ds who honestly (and even reasonably) thought the other person was willing to have sex.
Threat of Force: Intent of speaker or Perception of listener?
Common Definition: Threat of physical harm to the victim or a third person that is sufficient to create fear in a
reasonable person. (non-physical threats typically criminalized under state extortion/coercion statutes).
-State v. Alston: Tumultuous relationship. Battered woman, leaves bf. Bf threatens force to make her
walk with him to his friends house, forces her to have sex. State did not offer substantial evidence of
the element of force; (enough evidence to show V did not consent); D did not overcome Vs will.
SUMMARY:
Majority:
A. Sexual Intimacy with another;
B. By force or threat of force [Force + Lack of Consent + Overcome Resistance]; OR
a. Minority: No Resistance requirement;
C. Without legally effective consent due to incapacity;
D. Minority: Non-consent element // allow D to use a reasonable belief that V consented as an aff. defense
E. Aggravated If: Some other violence occurs (using deadly weapon; injure V; commit another felony)
1. State v. Alston: not enough to prove that victim resisted (the threat to mess up her face to far away in
time from actual rape)
2. State v. Brown: enough for rape: removing hospital bedding, touching stomach, taking off clothes
Marital Immunity
Majority: not applicable if divorced or living separately
Minority: total exemption
o 24 states have abolished
MPC: living as a man and wife (even if not married) exempt UNLESS spouses living apart under
formal separation
Rape Shield Laws
Bars: -Prior Consensual Acts with accused and with others
A. Reputation for lack of chastity

Exception: May show prior consensual acts if that evidence shows a unique pattern of conduct similar to the
pattern of the case at hand or shows the complainant may be biased or have improper motive
Justifications:
(1) Prevents D from harassing and humiliating the complainant with evidence
(2) Not relevant
(3) Keeps jury focused on relevant issue
(4) Promotes efficient law enforcement because a victim will more readily report and testify if she does not
fear her sexual past will be exposed
Statutory Rape
Generally, D is strictly liable for sexual intercourse with a young girl
Policy: protect young women, prevent pregnancy (See Michael M. v. Superior Court: this is how
upholding a gender specific law was upheld)
MPC: no strict liability, but punishes someone for having sex with someone they know or should have
known is under 10
See Garnett v. State: strict liability for statutory rape: mistake of fact not permitted
Ex. J says Stop, T. I dont want to have sex with you. We just met tonight. T says Youre right. I could be a
serial sex killer who preys on women just like you. J becomes frightened. Tries to calm the situation and puts
hands on Ts hands. T begins to undress J. Frightened, J does nothing, have sex. Did T intend merely to state his
perception or intend his words to intimidate J? If threat defined by state of mind, T probably cannot be
convicted of rape (if he didnt have that intent). If threat defined by Js honest & reasonable fear of death or
serious physical injury, T could be convicted of rape.

Defenses
Affirmative Defenses
There can be a difference between an affirmative defense & element negations.
General Rule: Legislature may require the D to carry the burden of proof on whatever the CL recognized as an
affirmative defense. BUT if the legislation copies or is similar to a CL offense, the Govt. must disprove
such a defense.- Very difficult to apply:

General Defenses to Crimes

Any set of identifiable conditions or circumstances which may prevent a conviction for an offense
1. Failure of Proof

All elements of the offense cannot be proven

Ex: Incest requires knowingly having sex w/ family member, if cousin did not
know about relation: failure to prove that element

2. Offense Modifications

Where all the elements are met of a charge, D has not in fact caused the harm or
evil sought to be prevented by the statute defining the offense
Ex: Parent gives $10,000 in ransom to kidnapper; cant be held as accomplice

3. Justifications

Social harm caused by harm is less than harm avoided by committing the crime
Ex: Actor burns a field of corn to save 10,000 lives from a raging fire

4. Excuse

The crime was wrong, but the actor was not meaningfully exercising free will
Ex: D strikes mailman on head because she believes he is going to take her to
Mars (all elements of charge are met: but Ds delusion relieves D from liability)

5. Non-Exculpatory Public
Policy Defenses

Statute of limitations justified by fostering more forward-looking & stable society

(other forms of immunities also fit here)

Joshua-Dressler-Justifications & Excuses

-Courts often use justification & excuse interchangeably, but that muddles the waters.
-Justified conducta good thing, a right or sensible thing, or permissible. I did nothing wrong for which I
should be punished.
-Excusealthough actor has harmed society, he should not be blamed. I admit I did something I should not
have, but I should not be criminally liable.negates moral blameworthiness.
-Important to distinguish between the two because basic moral values are expressed through the law & failure
to differentiate may affect whether more serious offense is charged, may affect the burden of proof, & could
affect accomplice liability (if justified rather than excused: co-D should also be excused)
Ex. of Difference: State v. Forrest (1987)- Ps father is dying of terminal disease. Severe pain. Doctors say
could live for many years but will not improve. P comes to hospital many times a week. One night brings in a
gun and shoots father 4 times. Waits for police & explains that he killed father to end suffering.
Excuse/Justification? Justification: Ending fathers pain was a greater good than having father continue to
suffer in pain for years. Excuse: Personal anguish & great emotional stress placed upon him by seeing father in
condition overwhelmed him & while killing was premeditated, there was no real choice.
-Note: As seen below w/ necessity, CL would refuse the excuse while MPC may allow it for a reduction
to manslaughter.

Burden of Proof
-Burden of Production: Jury is only allowed to consider legal issues which have sufficient factual evidence: A
scintilla
Step 1: for the judge
Who has the initial burden of production?
Prosecution
What must the prosecution prove?
Sufficient evidence that a rational trier of fact may reasonably determine (vs. speculate) that the
elements of the crime can be proven beyond a reasonable doubt
Does defense have any burden?
Yes, if they want to make a defense
What is there burden?
States differ: but some only require any foundation in the evidence or sufficient for any juror to
find in favor
-Burden of Persuasion: Who is obligated to convince the jury of the accuracy of the particular factual claim in
question?
Step 2: for the jury
Who has the burden? In re Winship- Prosecution has the burden of proof (beyond a reasonable doubt) on
all facts necessary to constitute the crime. Otherwise, violates Due Process.
-Justification essentially denies that a crime has been committed. So P must disprove justifications
-Excuse claim acknowledges that a crime has been committed but argues that the D should not be
punished because of something unique to her.
Applying the Winship Doctrine:
1. Mullaney v. Wilbur (SCOTUS)Shifting Burdens
a. Murder = murder required malice; Malice presumed for intentional killing; Defendant can rebut
the presumption by proving HOP.

b. HOP is affirmative defense.

2. Patterson v. New York- Upheld Const. of NY statute that put upon the D the burden of proving the
affirmative defense of extreme emotional or mental disturbance. (Claim did not negate an
element of the crime of murder.
Statute required D prove affirmative defense of self-defense by a preponderance of evidence
Court: unlike in Mullaney where heat of passion was an implicit element of the charge (justification
defense: i.e. absence of heat of passion) here self-defense is only an element of the defense
DP requires a state to prove every element in the definition of an offense, but legislature may if
it chooses, allocate D burden regarding defense of crimes
3. Martin v. Ohio: State MAY put on the D the burden of proving he killed in self-defense (justification).
-After these decisions, maybe able to still argue that when D raises a justification (not an excuse), he
may put the burden on the state of disproving that claim.
Note on sentencing:
Statutes that allowed a judge to impose a harsher sentence after conviction if facts are proven by a
preponderance of the evidence are not constitutional
All facts must be proven beyond a reasonable doubt & by a jury
o Apprendi v. N.J. (2000): D has const. right to have any fact that would expose her to a sentence
beyond the max amount provided by the criminal statute in question determined by a jury to be
proven beyond a reasonable doubt.
MPC 1.12(2)(a)
-Prosecutor has burden of production regarding each element of an offense and disproving all excuses and
justifications. Only exceptions left to D are: entrapment & reasonable reliance on official advice
-Affirmative defenses: prosecutor is not required to disprove unless there is evidence supporting such
defense. If evidence, then prosecution must bear the burden.
-For burden of persuasion: requires prosecutor to prove every element of an offense beyond a reasonable
doubt: including conduct that negates an excuse or justification BUT this does not apply to defenses that the
code expressly requires D to prove by a preponderance (2 exceptions above).
Allocation of Risk Error:
Burden of persuasion on state: promotes acquittal of innocent, while risk is acquittal of guilty
Burden of persuasion on D: promotes convicting guilty, at risk of convicting innocent
Ex. R kills mother, who is dying of terminal disease & has asked him to assist her to die. Prosecuted for 1st
degree capital murder but statute provides that whoever proves, beyond a reas doubt, that he has committed
murder in order to alleviate the pain & suffering of a person w/in 2 degrees of consanguinity shall be guilty of
merciful murder, punishable by 25 years. Can state make R prove these facts?
-YES! R has premeditated the killing (committed 1st degree murder). Despite the adjusted mens rea, it
was not recognized at common law. So statute has given a bonus from what CL would allow. State can
place defense on D. Under MPC: exceptions seem to be excuses that must be disproved by State once
reasonably raised by the D.

Principles of Justification
A justified act is an act the law does not condemn, but may even welcome
1. Public Benefit Theory: justified if for public benefit
Benefit of society is underlying motivation for actors conduct
2. Moral Forfeiture Theory: (focused on wrongdoer)
By voluntarily committing unlawful act, actor forfeits his rights
No social harm is done

3. Moral Rights Theory (focused on innocent D)

Actor has right to protect a particular moral interest
Provides D with an affirmative right
4. Superior Interest or Lesser Harm Theory
Justified as long as interests D seeks to protect outweigh those of the person she harms

Self Defense
Utilitarian: Failure to recognize a claim of self-defense is pointless since threat of future punishment is
unlikely to deter an actor who believes he must act or else die now.
Retributivist: Innocent victims of aggressive attacks are not immoral actors & cannot be seen as
blameworthy when they respond to such attacks.
CL- Requires a: (1) A Threat of; (2) imminent, unlawful; (3) (serious) bodily harm (implicitly requires only
proportionate force); (4) to which there are, or appear to be, no available alternatives, to the D except the use of
force. Some Cts. require non-culpability on the part of the D in bringing about the situation.
A non-aggressor is justified using force upon another if he reasonably believes such force is necessary
to protect himself from imminent use of unlawful force.
Preemptive Strikes: Ex. get out of town by sundown or else. This is not imminent/necessary. Instead, can
leave town, go to police, etc
Stand Your Ground Laws: No rqmt of retreat whether in house or in a place where s/he has a right to be.
-Presume that person using deadly force while in dwelling/vehicle had a reas fear of imminent harm.
-Presume that a stranger forcibly & unlawfully entering a dwelling intends to commit an unlawful act
involving force/violence.
-Ban on arresting the killer unless police determine that there is PC that the force was unlawful
-Immunity from civil & crim prosecution if justified in using such force.
-D carries burden of persuasion by a preponderance of the evidence that he did act properly
under the statute.
Proportionality/Subjectivity: D may use no more force than necessary to repel aggressor.
-Necessary depends on many factors. Physical characteristics; Ability to Escape;
-State v. Wanrow: D=54 woman on crutches shoots & kills unarmed, drunk 62 man who she
believed had threatened to molest her child. Outside the house were two men with baseball bats.
-Held that jury could find that women, as a group, are socialized not to use intermediate force
vs. aggressors, particularly aggressor males. Must look at gender characteristics. Maybe could
even extend out to other characteristics (cultural, etc)
-People v. Goetz (1986): 4 young black males in subway. 2 approach G & say give me $5.00 G shoots
the 4, missed 1 the first time & shot again, severing spinal cord. G flees, later surrenders, does not recant
but says he would have put the barrel against Vs forehead. An appeal of dismissal of indictment.
Indictment reinstated.
-Dispute over prosecutors instruction of reas. belief in objective sensevs. subjective sense. MPC
recognized subjective test. NY follows objective test (but should look at some addl circs).
Some Courts have opened up to a complete subjective test (played out in evidentiary stage).
If Court has objective test: Photos of recent escaped convicts; dark alley; setting; etc is okay. If honest
belief jurisdiction: Then also can bring Ds past experiences being robbed; paranoias, etc
Mistake/Reasonableness: Typically look whether a mistake was honest and/or reasonable.
Aggressor
Can an initial aggressor ever invoke self-defense?
-Withdrawal: (1) Stating that he is withdrawing and/or (2) Physically removing himself from the
immediate area. If aggressor tries to withdraw & then victim kills him, could be guilty. Need to determine

(a) obviousness of aggressors decision to abandon the fight; and (b) original victims perception of the
abandonment.
-Difficult to determine when each episode of aggression begins/ends.
-Some cts hold that victim may be so disoriented/terrified that justified not to respond Aggressors
attempt to stop the fight.
- United States v. Peterson: P shoots K after confrontationK was walking toward P w/ a wrench.
o Was P the aggressor? P claimed judge erred twice: (1) instructed jury to consider whether P
could have retreated, & (2) if P was the aggressor in this incident.
o Cannot support claim of self-defense where he was the aggressor in a conflict ending in death.
o Must communicate intent to withdraw & make good faith attempt to do so.
-Not Unlawful Aggressor: Defensive force can only be used against unlawful force.
Battered Wives Cases: Ex. Wife kills abusive husband in his sleep.
-Some Cts: State v. Norman (N.C. 1989)- Once husband goes to sleep, battering episode has terminated.
-Response: Battered Wife Syndrome: Over a period of cycles involving beatings, reconciliation, and
growing tension, wives have come to believe that there is no escape. Courts will admit evidence of this
syndrome. Wives show evidence of historic inadequate protection by police/govt agencies.
-Objections to Evidence: (1) May distract jury from killing at hand to the general question of police
response; (2) No matter how accurate a picture of govt. response evidence casts, it cannot generate a
justification for the wife, who should have tried those avenues (or retreated) once more before taking
life.
Problems w/ Self-Defense
Mens Rea: Does self-defense claim negate mens rea of the crime? If yes, prosecution must carry the burden of
proof, once properly raised (almost all states take this approach).
Defense of Others: X is mistaken & Y is (a) responding legitimately to Zs initial aggression (by beating up Z);
or (b) Y is a police officer arresting Z. Should X be liable for assaulting Y?
-Alter Ego Rule: Can use as much force as Z could.
-Other states (MPC included) just exculpate X (encourage reasonable intervention).
- Modern rule: if actor acts on reasonable belief, third-party defense still applies to actor, even if third
party had no right of self-defense.
- People v. Kurr (2002): Woman who stabs boyfriend attacking her while she is pregnant permits a
defense of others instruction because she is defending her unborn child.
MPC 3.04(1): The use of force upon/toward another person is justifiable when the actor believes that such
force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such
other person on the present occasion.
o Subjective testnot reasonable person.
- Retreat: No justification defense if the actor knows that he can avoid the necessity of using such force
w/ complete safety by retreating or by complying w/ a demand that he abstain from any action that he
has no duty to take. (Limitation)
o But Castle Exception: broader an innocent person is not obligated to retreat from his dwelling
or place of work
- Aggressor: no self-defense if the actor, w/ the purpose of causing death or serious bodily injury,
provoked the use of force against himself in the same encounter. So initial aggressor is person who
had purpose of causing death/serious bodily harm.
- A.R.S. 13-407: Person is justified in threatening to use deadly physical force or in threatening/using
physical force when & to the extent that a reasonable person would believe it immediately necessary.
But, person may use deadly physical force in defense of himself or third person as described.
Imperfect Self-Defense

CL: Many states proclaim D is guilty of lesser offense is she kills while harboring genuine, but
unreasonable, belief decedent constitutes imminent threat to her life.
- MPC: D may claim self-defense where he has a subjective belief such force is necessary.
o Unreasonable belief counts at first blush (MPC 3.09). But:
If honest belief is reckless, can be convicted of reckless crimes (e.g. manslaughter)
If honest belief is (criminally) negligent, can be convicted of negligent crimes.
If honest belief, though unreasonable, is not (criminally) negligent, no crime.
- Classify the intentional killing as manslaughter.
o X has honest but unreasonable belief = manslaughter.
o Y uses non-deadly force, X uses successful deadly force, X kills Y = manslaughter.
o Y uses non-deadly force, X uses unsuccessful deadly force. Y kills X. = manslaughter
In various jurisdictions, Y would be guilty of:
Nothing: not deadly aggressor, so deadly force legal.
Manslaughter: he was aggressor, but not wholly at fault.
Murder: he was the aggressor.
MPC vs. CL Self-Defense Distinction
- Timing of Harm:
o CL: Imminent. Now.
o MPC: Immediately nec. Threat could be in the future. (now is last opp. to prevent future harm)
- Belief
o CL: Honest and Reasonable.
o MPC: Honest (plus MPC 3.09(2))(can be unreasonable but for exceptions).
Defense of Habitation- Property owners claims to possession & personal security more important than
aggressors bodily safety.
**Can use non-deadly force when have an honest & reasonable belief that it is necessary to protect
real/personal property in possession from imminent unlawful taking, damage, dispossession, or trespass.
Limitations: 1) Other lawful means available: If there is time to use other lawful measures (calling the police),
then no force.
2) Warning: If can do something w/o risk to self/property, indiv must warn aggressor to stop unless it is clear
the warning would be useless.
3) Deadly force NOT permitted: Human Life > Property
-Personal Property: If use nondeadly force & is then presented with what reas. appears to be deadly
force, owner may respond w/ deadly force in SELF DEFENSE.
-Conversely: If Owner uses deadly force, then thief has right to use deadly force in self-defense
because the property owner has exceeded his legal privilege to use force.
-Real Property: CL allows use of deadly force to protect real property.
-Modern: Only allow use of deadly force to prevent forcible entry into a dwelling only if the
occupant has a reas. belief that the intruder intends to commit a felony inside.
- State v. Boyett (2008): W dating R. W dumps R, starts dating B & they are engaged. W has fling w/ R
before wedding. B ends up shooting R when she comes to their apt. B claims defense of habitation.
o Court denies defense for B because there is no evidence R was trying to forcibly enter the
home. At common law, all felonies were violent.
o D must reasonably believe intruder was going to commit a violent felony, and only if deadly
force necessary to prevent violent felony.
Law Enforcement Defenses
- Crime prevention or arrest
- Deadly force is never justified to prevent misdemeanors or arrest a misdemeanant.

Necessity (Choice of Evils) Defense

Elements: (1) a threat (usually from a natural source) of (2) Imminent injury to the person/property
(1) For which there are no (reasonable) alternatives except the commission of the crime.
(2) The Ds acts must prevent an equal or more serious harm
(3) The D must not have created the conditions of his own dilemma.
Source of Threat: Typically a natural source (avalanche, starvation, fire, etc).
-Modified for prison cases: A escapes prison after W threatens rape. Cannot claim duress (W did not
order A to escape). Threat was human so no necessity. Cts have since allowed such necessity claims.
Necessity & Homicide: Regina v. Dudley & Stephens (1884)- 4 men cast adrift in a lifeboat in the Atlantic
Ocean when boat began to sink. After 19 days of subsisting on 2 cans of turnips & a small turtle. 2 Ds
kill other man (who was youngest; only one w/o family; and weakest). 3 survived by eating man.
-Ct. Refused Necessity. Knowingly taking innocent life could never be allowed by the law.
-Today: would need to show that it was fate that determined who would die (not premeditated)
Imminence: Sometimes difficult to show.
- State v. Nelson (1979): Nelson took 2 Highway Dept vehicles after truck was bogged down in marshy
area. After 12-hour effort, he & his friends went to sleep & were arrested in the morning. Court affirms
the conviction.
o Harm: trying to keep his truck from falling over.
o No necessity defense because harm was not immediate, there were adequate alternatives, &
harm caused was disproportionate.
Alternatives/Choice of Evils: Sometimes difficult to know what the lesser evil is. What if drifting plank can
only hold one person & two swim towards it. One killing the other a lesser evil?
o Must reasonably, objectively, appear that will avoid GREATER harm by causing LESSER harm
o CAN burn down 1 house to save 10, CANNOT burn down 1 house to save 1.
Absence of Deliberative Legislative Choice
- Assume exchange of clean syringes saves lives by preventing AIDS. But: state law criminalized
distribution of syringes without a prescription, except to approved pilot programs.
- Necessity defense available to AIDS activist who sets up clean needle exchange?
MPC: Claim of Lesser Evils- 3.02 BROADER
D must actually believe conduct is necessary to avoid an evil & that it is lesser evil.
-Rejects many CL Restrictions: Need not be imminent; no diff. between human/non-human forces; not
restricted to instances involving death/serious bodily harm; does not preclude defense in a homicide.
-May still raise claim even if recklessly/negligently put self in position.
-If reckless in duress guilty of murder; if reckless in necessity only guilty of manslaughter.
Note: Fed Govt. has suggested that necessity claim is only available if statute expressly permits the
claim. U.S. v. Oakland Cannabis Buyers Corp. (U.S. 2001).
Civil Disobedience:
Generally: Non-violent act publicly performed and deliberately unlawful
Direct
Indirect
Protesting particular law by breaking it or preventing
Violation of a law that is not the object of the
the execution of that law in a specific instance
protest
Indirect: U.S. v. Schoon (1991)- Citizens convicted for obstructing activities of IRS office. Ct holds
necessity defense inapplicable to cases involving indirect civil disobedience.
Arguments in favor of political necessity claims:
(1) Empowers the individual by providing them with a forum in which a stifled minority or unheeded
majority receives a public hearing and a governmental response: our society values political input

(2) Allows jury to acquit the defendant: jury serves as a buffer between D and harsh law
(3) Improves quality and quantity of discussion
Arguments against
(1) Those who violate the law should accept the legal consequences
(2) Violates principal of majority rule allowing one person or juror to nullify the law
(3) Jurors lack expertise to even make the necessary policy judgments

Principles of Excuse
Dixon v. U.S. (2006 U.S.)- Duress is an excuse
Arizona v. Clark (2006 U.S.)- Insanity is an excuse
It is Const. for a state to place upon a D the burden of proving (by preponderance) that an excuse existed.
Note: Excuses can be abolished by the legislature because a state can ignore any claim that does not go to
whether a crime has been committed.
Why Do We Excuse Wrongdoers?
-Kadish: it is a feature of our everyday moral practices that lies behind laws excuses. Excuses are the essence
of a moral code.
-Dressler: excuses are more plausibly defended on non-utilitarian terms. Causation theory not blamed if
conduct caused by factors outside actors control.
-Character theory punishment should be proportional to moral desert, measured by actors character.
- Free choice (or Personhood) theory person may be blamed if he had the capacity and fair opportunity to
function in a uniquely human way, i.e. free to choose whether violate moral/legal norms of society.
1. Duress: Overcome of will by external force: there is no actual choosing here thus excuse
NecessityDs free will properly exercised to achieve greater good.
DuressDs free will was overcome.
CL: (1) A well-founded fear generated by (2) A threat from a human being of (3) An imminent (immediate)
(4) Serious bodily harm or death (5) To himself (or maybe a near relative)
(6)Not of his own doing
- No reasonable opportunity to escape
Personal Injury: NO THREAT OF PROPERTY can sustain a duress claim (could have a claim of necessity).
Imminence
U.S. v. Contento-Pachon: man & family threatened. Coerced into smuggling drugs across the border. Even
though not imminent, not forced on place at gunpoint, jury could reasonably find duress.
-Duress can be a defense to drug smuggling
-Note: defense is uncodified (pure CL) because the U.S. Code does not have codified defenses.
-Also Note: Cts typically refuse to allow D to raise claim (require to report to U.S. authorities)- despite
lack of protection provided to family.
Reasonableness of Fear: Must be a reasonable fear. Ex. A clearly points a water pistol at D, no duress.
-Put this in perspective- threat to break a pianists finger is more severe than a normal person.
Not of his own doing: Ex. D knowingly joins a violent gang & then commits a crime under threat of immediate
death from fellow gang membersno duress allowed.
Duress a defense to murder? NO (People v. Anderson)
Prison Escape Cases: Typically if a prisoner escapes after threatened with rape, etc then Cts consider
escape to be a continuing offense and will require prisoner to turn himself in as soon as he was sufficiently far
from the prison or loss duress claim as a matter of law.
Note: The Duressor will be held guilty of any crime he threatens duressed to commit
MPC 2.09- Changes: Any unlawful force (not just serious bodily harm/death) but still no property
-Threat must have similarly affected a person of reasonable firmness in the Ds situation

-Ex. If D is unusually vulnerable (hemophiliac) or has particular fear of a particular injury

(pianists fingers)this may be party of the situation.
-Duress allowed for all prosecutions (including homicide).
-Not restricted to imminent harm.
-Threat to any person (not just a relative/acquaintance of the D).
-Disallows defense if D recklessly placed self in position to be duressed (like CL).

Insanity
Three assumptions: (1) Mental illness exists & is beyond the control of the afflicted person; (2) Illness interferes
with important psychological functions; (3) Impaired functioning significantly impairs an individuals ability to
understand & direct her behavior.
Competency to Stand Trial: Test is whether D has sufficient present ability to consult w/ his lawyer w/ a reas.
degree of rational understanding (and whether he has a rational as well as factual understanding of the
proceedings against him).
-Constitutional for burden to be on D by preponderance.
Not Guilty by Reason of Insanity (NGRI): Can be committed to a secure mental health facility indefinitely,
even beyond the max term for which she could have been sentenced if found guilty. D found NGRI must be
released if she is no longer mentally ill or dangerous.
Insanity Defense: Look to time of alleged offense.
MNaghten Test: Excuses D from crim responsibility if, at the time of the crime, he was laboring
under such a defect of reason, from disease of the mind, as not to know the nature & quality of the act
he was doing; or, if he did know it but that he did not know he was doing what was wrong.
- Essentially: No conviction if, at time of crime & as a result of mental illness, D did not know what he
was doing or that it was wrong.
-Clark v. Arizona (2006 U.S.)- Need not use both prongs (AZ limits rule only to those who did not
know their criminal act was wrong. AZ also requires Ds to establish insanity defense by CLEAR AND
CONVINCING EVIDENCE). Some states do not even have an insanity defense.
-One way to show that did not know act was wrong is to he did not know what he was doing
when he acted (prong 1). So no evidence relevant to crim responsibility was excluded at trial.
Irresistible Impulse Test: Mental illness produced an irresistible impulse to act (added to MNaghten
Test). Satisfied if D persuades a judge/jury that he would have committed the crime even if a policeman
were at his side at the time. VERY DIFFICULT
MPC Test: Criticism of MNaghten: Only those who lack cognitive ability. Should also excuse those who
could not control their behavior. Also, required total impairment. Did not take into account new
psychiatric knowledge on human behavior.
TEST: A person is not responsible for criminal conduct if at the time of such conduct as a result of
mental disease/defect he lacks substantial capacity either to appreciate the criminality (wrongfulness) of
his conduct or to conform his conduct to the requirements of law. 401.
-Volitional + Cognitive disability qualifies; No total impairment, just substantial capacity; Expands
scope of relevant testimony by mental health professionals. More modern.
-Accepts that some individuals may understand that conduct is wrong but cannot control behavior.
Federal Insanity Test: Tougher than MNaghten because D must suffer from a severe mental disease/defect.
Guilty But Mentally Ill Defense: Jury may find a D who raises the insanity defense GBMI (vs. NGRI).
-Actually go to prison.
Ex. p. 538EE

Intoxication
Voluntary: Can only negate specific intent elements (purpose/knowledge) (not a defense).
-Usually just reduces sentences.

Involuntary- Must show that D unwittingly consumed an intoxicating substance (or took medication & had a
highly unlikely & unforeseeable reaction) that produced sympyoms as required by the MNaghten test of legal
insanity (did not know what he was doing or that it was wrong).
-Complete defense because causes D to commit a crime he would not have otherwise committed
MPC:
Defense as long as negates an element of the offense
No distinction between general and specific intent
Cant argue recklessness if he is only unaware of the unjustifiable and substantial risk
because of his own intoxication
Status
-Robinson v. California (1962): CA statute criminalized being addicted to the use of narcotics.
o Statute violates the Cruel & Unusual Punishment Clause (8th & 14th amendments). No actus reus.
o Although state can punish for unauthorized manufacture, make treatment compulsory, & educate
the public, it cannot make the status of narcotic addiction a criminal offense.
o Must be read in conjunction with Powell.
- Powell v. Texas (1968): Convicted of being in a state of intoxication in a public place. Is this Cruel &
Unusual punishment if the person suffers from the disease of chronic alcoholism.
o Unable to assert using crim process to deal w/ public aspects of alcoholism can never be
defended as rational.
o D as convicted for being drunk in public, not for being a chronic alcoholic.
- Jones v. L.A. (2006): Law criminalizing sitting, lying, sleeping on public streets and sidewalks at all
hours violates the 8th Amendment CUP when enforced against homeless people.
- Justification
o Retributive: is actor to blame for becoming an alcoholic/addict? Or did actor have sufficient free
will to avoid committing offense at time of the crime.
o Utilitarian: does it actually deter? Specifically or generally?
2. Severe Environmental Deprivation Defense
- Should criminal law consider this?
- If so, what are the limits?
- What factors matter?
- How do we reliably measure deprivation?
- Can compare brain scans of normal person to neglected person.
- Judge Bazelons Three Requirements:
o Convictions are just only if:
Defendant committed condemnable act.
It was reasonable to expect the defendant to conform his actions to the requirements of
the law.
Societys conduct upon the defendant entitles it to sit in condemnation of the defendant
for his actions.
- U.S. v. Alexander (1972): D argued socially and economically deprived childhood impaired his
behavior. Convicted regardless.
o Dissent: law should not convict unless it can condemn: (1) D committed condemnable act, (2)
actor can be condemned, and (3) societys own conduct in relation to actor entitles it to condemn.
- DelgadoRotten Social Background: Should the Criminal Law Recognize a Defense of Severe
Environmental Deprivation? there is a strong relationship between environmental adversity and
criminal behavior. Retribution theory provides little moral basis to punish, and deterrence theory is
unlikely to justify punishment either.
- Kadish: social deprivation does not establish a moral excuse any more than a legal one.

Cultural Defense
- State v. Kargar (1996): Afghani refugee convicted of gross sexual assault for kissing his 18-month olds
penis. Testimony showed this was common practice in Afghani culture to show love and no sexual
gratification was present. State had a de minimis statute.
o Gives judge ability to decriminalize what would otherwise be criminal.
o Judge had already suspended sentence, but appeals says the court erred as a matter of law in its
de minimis analysis. Legislature took out for sexual gratification because they were redundant.
- Extreme example of cultural defense.
o Implications:
Honor killings
Marriage by capture
- Law values diversity, but must be balanced with need for uniform criminal liability and common values.
- Gender aspect: problem some cultures do not value women the same way ours does. Victims are
frequently women and children, they should not be denied protection of criminal laws.

INCHOATE OFFENSES
A. Overview
-

Inchoate offenses: crimes committed even though substantive offense is not successfully consummated
o Criminalization of partial behavior
o Crimes of:
Attempt
Solicitation, and
Conspiracy
Most jurisdictions treat inchoate offenses as substantive crimes
o Modern Penal Code has a middle ground approach, prohibiting an act constituting a
substantial step toward the completed offense.
Enforcement subject to judicial interpretation and discretion and prosecutorial discretion

B. Attempt
Punishes a D because he intended to commit a particular crime & took a significant step to commit it.
-Attempt merges with the offense
Merger Doctrine Cannot convict D of both a completed offense and an attempt to commit it
Solicitation & Attempt MERGE with Completed Offense. Conspiracy DOES NOT MERGE!
Attempt is a lesser included offense of the completed crime
- Robbins: all jurisdictions treat attempt as a lesser included offense of the completed crime. Also hold D
can be convicted of attempt if state proves completed crime.
- Ashworth: prevention is the main reason for criminalizing attempts. Preliminary act manifesting intent
to commit substantive crime is presumed to cause apprehension or fear in others. Harm-based
retributivism does not justify punishing incomplete attempts. Intent-based form of retributivism
could justify punishment.
-Incomplete attempt: actor does some of acts he intended, but desists or is prevented from continuing by an
extraneous factor
- Incomplete attempt timeline: Mere preparation attempt offense.
-Completed attempt: actor commits all of intended acts but is unsuccessful in producing result.
Grading Criminal Attempts
-Generally, attempt to commit a felony is a felony, but is a lesser felony than the target offense.
-Modern Penal Code uses grading system rather than just fixing punishment as a lower for attempts, etc.

- 5.05: treats attempt, solicitation, & conspiracy as crimes of the same grade for sentencing purposes
-Determine grade/degree of inchoate crime based on gravity of most serious object offense
When object is capital crime or first-degree felony, grade offense as second-degree.
Tie the attempted crime to the underlying crime

Mens Rea
CL: Same State of Mind as required for conviction of the Target Offense- Specific Intent;
D Must Intend: (1) To do the act; (2) to accomplish the result; and (3) under the same circumstances that
would be required for conviction of the target offense.
1- Intend Act: Cannot commit an attempt recklessly or negligently. Note: it is possible to attempt a crime
that only requires an act done with recklessness/negligence in some jurisdictions (Ex. Person who
knows that his car brakes do not work might commit attempted reckless driving if he gets into his parked
car and starts it, intending to drive it on the streets. However, because he does not actually drive the car,
he cannot be convicted of reckless driving).
2- Intend Result: This is only if there is a result element to a crime.
3- Intend Circumstances: Must know the circumstances of the target offense (even if SL applies). (Ex. A
has sex with 15-year old B thinking B is 18. Charged. But if caught moments before, no attempt for
statutory rape because did not intend B to be 15.)
People v. Gentry (1987): BF spills gasoline on GF, which ignites, he smothers flames but she is burned.
- No evidence that D actually intended to commit murder.
- Attempted murder is only possible upon a showing of a specific intent to kill.
Bruce v. State (1989): D pointed a gun at the clerks face and demanded $. When the clerk ducked down for
cover, D shot him. A jury found D guilty of attempted first-degree attempted felony murder.
- A crim. attempt consists of a specific intent to commit the offense + some overt act in furtherance of the
intent, beyond mere preparation
- D cannot be convicted of attempted felony murder because felony murder has no specific intent.
MPC: Conduct: D must purposely engage in all elements of conduct made criminal.
Result: Slight expansion from CL- if causing a particular result is an element, permits conviction for attempt if
D acted with purpose OR belief that his act would cause a particular result.
Circumstance: Must have whatever mens rea toward circumstances that is required by the target crime. So
from above Ex. A could be charged with rape because B being 15 is a SL Circ. Element of target offense.
Summary: 1) Did D act with the same mens rea required by the crime attempted?
2) CL: Did she also intend to commit the act at to cause the result and intend the same circumstances as
required by the crime attempted?
3) MPC: Did she have: a) the purpose to do all the conduct elements of the target offense?
b) the purpose to cause the result (or believe she would cause the result) of the target offense?
c) the same mens rea toward the circumstance elements as required by the target offense?

Actus Reus- CL= how far from completion? MPC = how far did you go?
CL- Behavior provides strong evidence of a criminal intent & came quite close to completing target offense.
Last Act: D-favorable. Must have taken the very last step w/in his power to commit the target offense.
-Events out of Ds control. Provides time for D to change his mind.
-Ex. A shoots B intending to kill B. Whether A succeeds is out of his control.
Unequivocality Test: Ds actions must unquestionably show that D is trying to commit a crime.
-D-favorable; No other evidence besides the action.
-Ex. A lights a pipe with a match & then drops the match into a haystack may simply be careless
OR trying to set the barn on fire. It is unclear.
-Damages Effective Law Enforcement BUT protects liberty from govt. interference.
United States v. Oviedo (5th Cir. 1976): requires objective acts of the D evidencing commitment to the criminal
venture and corroborating the mens rea.

Stokes v. State (Miss. 1908): attempt is punishable when (1) the design of the person to commit crime is clearly
shown + (2) slight acts are done in furtherance of this design
People v. Luna (Cal. App. 2009): where the intent to commit crime is clearly shown, ANY act done toward the
commission of the crime is sufficient for an attempt
Dangerous Proximity Test: Jury can weigh several factors (seriousness of offense, community
resentment, and closeness in space & time to completing the crime- Peaslee).
-Flexible but uncertain about when an attempt occurs.
-Some Courts try to limit this by requiring physical closeness or to set in motion a chain of
events that created a high probability that the crime would be completed.
Preparation is not an attempt requires (1) an overt act + (2) intent to commit the crime
Commonwealth v. Peaselee (Mass. 1901): Ds prepared materials in a room for the purpose of setting the
building on fire, with the intent to injure. D paid another person to go to the building and light the fire. As he
neared the building, D changed his mind and drove away.
-Excepted indictment because there was insufficient evidence D would have completed the act.
-Attempt is a matter of degree: the actor shows a present intent to accomplish the crime without much delay,
at a time and place where he was able to carry it out.
People v. Rizzo (1927): Ds planned to rob a person of a $1.2K payroll. Ds, armed w/ guns, drove around in a car
looking for that person. Spotted & stopped by police before Ds found the person they intended to rob.
-Reverse conviction because the opportunity for Ds to commit the intended crime was too remote
insufficient proximity of the danger. (but-for the interference)
-Acts amount to an attempt where they are so near to the result that the danger of success is
very great a dangerous proximity to success
Probable Desistance: Only an act that would normally be sufficient to result in the commission of a
crime but for the intervention of some outside person or event.
-Would an ordinary, law-abiding person have likely changed his mind & broken off from
criminal course of conduct?
-Ex. Terrorist checked a bag armed w/ sophisticated explosives that go off when plane hits 30K
feet satisfies this test. He could still change his mind but is unlikely to do so.
-Encourages speculation!
United States v. Mandujano (1974): Prep for an act is not alone for an attempt - must be some appreciable
fragment of the crime committed.
-Crime must be in such progress that it will be consummated unless interrupted by circumstances
independent of the will of the actor.
MPC: Substantial Step Test: Actor must take a substantial step before he can be convicted of an attempt.
-Strongly corroborative of the actors criminal purpose. Looks at crim. determination not how close.
-Legally Sufficient Conduct to Pass Test (jury could find)- Searching for the victim; reconnoitering
the crime scene; unlawfully entering a bldg. where the D contemplates committing the crime; possessing
tools/instruments necessary for committing the crime near the crime scene; soliciting an innocent agent
to do an element of the crime.
United States v. Jackson (1977): MPC establishes substantial step test. In course of conduct designed to
accomplish criminal result, strongly corroborative of criminal purpose. This (1) shifts emphasis from what
remains to be done to what has been done, (2) does not require looking to whether actor would have desisted
prior to completing the crime, and (3) is less of a hurdle for prosecution.
People v. Lehnert (2007): substantial step provides fact finder with more specific and predictable basis to
determine attempt.
1) CL: Did the Ds act satisfy the applicable test:
a) Last act- did the D do everything that he could do and is the result now beyond his control?
b) Equivocality test- would reas. people, observing only the Ds conduct, necessarily conclude that he
was trying to commit a crime?
c) Proximity test- in light of the seriousness of the offense and the scope of possible harm, did the D
come close in space & time to completing the offense?

d) Probable desistance- Did Ds conduct start a chain of causation sufficient to result in the
commission of the completed offense unless another person or event would prevent it? Would a lawabiding person likely have changed his mind?
2) MPC: Did Ds behavior strongly corroborate his crim purpose? If he searched for his victim,
familiarized himself with the crime scene, unlawfully entered a bldg. where he thought he might commit
the crime, had special tools essential for committing the crime, or solicited an innocent agent to commit
the crime, a jury could (but is not required to) find him guilty of an attempt.

Abandonment
CL: No defense for abandonment. Once D crossed the line dividing preparation & implementation, could not
go back. This is where the Actus Reus test comes in- some are quite generous.
-Some States allow abandonment: Defense allowed only if the D changed his mind through genuine
remorse and not because the risk of arrest or difficulty of committing the crime was greater than
anticipated. Affirmative defense that D would need to establish through preponderance of the evidence.
MPC: Renunciation- permits D to introduce evidence that he abandoned his effort to commit the crime or
otherwise prevented its commission, under circs manifesting a complete & voluntary renunciation of his crim
purpose.
-Only available in crimes with a result or circumstance as a material element. If just conduct, harm has
already been done once conduct occurs.
-Must be voluntary.
-Must be complete. D must not just be waiting for a better time/opportunity.
-A reaction to the stricter Actus Reus test?
Commonwealth v. McCloskey (1975): Would-be prison escapee changes his mind and abandons escape.
-If it is an internal decision, defense of abandonment is permitted. If it was external, no defense.

Impossibility
-Factual Impossibility: if the intended substantive crime is impossible of accomplishment because of some
physical impossibility unknown to the accused, the elements of a criminal attempt are present.
-CL: NEVER a defense. MPC: NEVER a defense.
-Pure Legal Impossibility: if the intended act is not criminal, there can be no criminal liability for an attempt to
commit the act.
-CL: is a defense; MPC: is a defense.
Hybrid Legal Impossibility: the actors goal is illegal, but the commission of the offense is somehow rendered
impossible by attendant circumstances [or the lack thereof].
-CL: moving toward not being a defense; MPC: NOT a defense.
-Most court speak simply of factual and legal impossibility.
-Factual: shooting an empty bed thinking there is someone in it. Would-be thief puts his hand in the
empty pocket of a victim
-Legal: shooting stuffed deer dummy in prosecution for attempted shooting of deer out of season. Person
receives non-stolen property, believing it is stolen. The act, which it was doubtless the intent of the
defendant to commit, would not have been a crime if it had been consummated.
MPC: Abolishes Hybrid Legal. No Factual either; Keeps Pure Legal
5.01(1): Abolishing Impossibility
-A person is guilty of an attempt to commit a crime ifhe:
-(a) purposely engages in conduct that would constitute the crime if the attendant circumstances
were as he believes them to be; or
-(b) when causing a particular result is an element of the crime, does or omits to do anything with
the purpose of causing or with the belief that it will cause such result without further conduct on
his part;
-EX: person tries to bribe a juror, but thinks the jurors twin is him and offers the bribe to him instead.

-Rationale: law of attempts should be concerned with manifestations of dangerous character as well as with
preventative arrests.
People v. Thousand (2001): Undercover officer posed as a minor in an online chat room. D sent nude pictures,
argues that because a child victim was not actually present, evidence was legally insufficient to support the
charges of attempted distribution of obscene material to a minor.
-Whether doctrine of impossibility provides a defense to a charge of attempt to commit a crime.
-Under this doctrine, D cannot be prosecuted for a completed offense, but can be prosecuted for an
attempted offense.
-State law indicates that impossibility is not a defense to attempt charges. (Would be attempt under MPC
because he believed sending them to underage girl)
Ex. J fired 9 rounds from assault-style, semi-auto rifle at the WhiteHouse from speeding car over 750 yds from
target. One hit window, others found on lawn. J didnt know that president and wife were out of town. Charged
with attempted assassination.
-P argues J intentionally aimed & fired rifle at WhiteHouse. Hit window. Shows intent to fire lethal
rounds into place where President lives. Definitely intended natural & probable consequences of his
action (killing the president). Mens Rea present. Committed last act under his control to achieve result
(no longer an opp. to desist)= Actus Reus. No factual impossibility (not allowed under CL).
-MPC: P proves that J purposely fired rounds at Presidents house. Must also prove that D acted with
the purpose/belief that his act would cause proscribed result (Prezs death). Easy- why else would he use
such a powerful weapon? Mens Rea. Committed a substantial step (more than possessing a deadly
weapon near White House, actually shot!)= Actus Reus.
-D says no evidence of intent other than Js discharge of the weapon at great distance in the general
direction of the White House from a speeding car. Such a bad plan that there is clear absence of a goal.
Maybe this was reckless, but not intentional (required by CL).
-Under MPC, how was it that D acted with purpose or belief from such bad facts?
Ex. D selling drugs to customer on street corner. V (rival gang member) walks towards him & D uses stolen
gun to fire warning shot over Vs head (to scare him). 1) Strikes V in head & V almost dies:
-No attempted murder. Despite V almost dying as a result of an intentional act, D did not act with the
purpose of killing him. Purpose was to scare V. Since Ds mental state is truly unknown, however, jury
could conclude that D intended the result.
2) Strikes V in head & V dies.
-D proximately caused the death of another human who was not a co-felon during the commission of
a felony (drug sale).Could be convicted of felony murder (despite no attempt to kill).
3) D intends to kill V but bullet only grazes V. V dies from heart attack partially induced by illicit drug he took.
-Jury must decide whether drug was proximate cause of death (independent intervening cause). If yes,
D could only be convicted of attempted murder.
Ex. D wires Vs car so that it would explode when V started it the next morning. V died of a heart attack & D
snuck over to remove the explosives.
-Attempted Murder. Purposefully wired Vs car in order to kill him. Took the last step (though D
would argue were not beyond her control). Satisfies equivocality because planting a car bomb manifests
criminal intent. Dangerous Prox satisfied because a jury could find her guilty because she has come
close in time and space to committing the target crime (and very serious offense). Subst Step- planting a
car bomb so it would explode immediately is highly corroborative of crim purpose to kill.
-D cannot argue factual possibility. Also no renunciation- did not change her mind for the right reasons.

C. Solicitation- the offer

Punishes anyone who deliberately encourages someone else to commit a crime. Success/Committal of
crime does not matter. Also punish anyone who has acted with the purpose to cause the commission of the
crime. Act can just be spoken words or conduct designed to implement the crime.

Policy: Punish the initiator as soon as acted with necessary mens rea to commit a crime to prevent commission
of the crime (like attempt). Can think of it like an attempt to conspire.
Punishment: Generally misdemeanor. Some states limit only solicitation of serious felonies. Provide degrees
MPC has no limit on crimes that can be the object of solicitation. Crime to solicit any crime.
-Punish as severely as the crime solicited (except for capital offense/first-degree felony2nd degree)
-Consistent with MPCs focus on dangerousness of an offender rather than how close to committing.
Merger: Solicitation OR crime; attempt; conspiracy (no solicitation + any of these).
Common Law Definition: D must act with specific intent that another person commit a crime and have
enticed, advised, incited, ordered, or otherwise encouraged the person to commit a crime. Person solicited need
not agree to commit crime (nor does crime need to be attempted/committed).
-Some states require corroboration of the testimony of the person claiming he was solicited.
MPC Definition: 5.02- with the purpose of promoting/facilitating its commission he commands, encourages,
or requests another person to engage in specific conduct that would constitute such crime or an attempt to
commit such crime or would establish his complicity in its commission or attempted commission.
-Solicitation of ANY crime (not just felonies/serious misdemeanors).
-Generating ANY responsibility as accomplice (vs. CL only soliciting to act as principal in 1st degree)
Ex. S asks a hired gunman to kill V. S would be an accomplice (accessory in the 2nd degree) & gunman would
be the principal in first degree. MPC: if S encouraged gunman to sell him weapon with which the S himself
could kill the victim, the S has committed solicitation because he has encouraged the gunman to become an
accomplice.
Alternate Solicitation Definition: Must offer something of value in addition to encouragement.

Mens Rea
CL: Specific Intent- D must intend that the individual solicited commit a crime. Must be serious. D must have
specific intent as to the conduct, results, and circumstances.
MPC: Purpose- D must desire to encourage all conduct and result elements of the crime solicited & must
know or believe that all circumstance elements will be satisfied.

Actus Reus
CL: D must entice, advise, incite, order, or otherwise encourage another person to commit a felony or serious
misdemeanor. Usually it is speaking. Can also just be applauding or cheering.
-Some juris: if words of encouragement do not actually reach individual hoped to be encouraged, can
only be charged with attempted solicitation (pushes criminality threshold back).
MPC: D must command, encourage, or request another to (a) commit a crime, (b) attempt to commit a crime,
or (c) become an accomplice in the commission of or attempt to commit a crime.
-Punishes as solicitation criminal encouragement that does not actually reach the person solicited.
If the Solicitee Agrees to commit the crime solicited: CONSPIRACY. Merger.
Responsibility: Solicitor will be responsible for any solicited crime that is committed/attempted by the person
he solicited. CL: treat as accessory before the fact (modern: accomplice). If statute disallows solicitation for
particular crime, could be an attempt (very, very minority of courts, no MPC). No charge for solicitation &
attempt for same crime.
Innocent Agent: Ex. Daughter substitutes poison for Ms medicine. Caregiver gives M the poison. NOT
solicitation but an ATTEMPT (last act). If actually occurs, then Principal.
Impossibility: CL: Legal Impossibility: Defense. Cannot commit solicitation by encouraging someone to do a
non-crime.
Factual Impossibility: Very rare. Threshold of criminality is set so early that the offense is complete once the
D has purposefully encouraged another to commit a crime. (law does not care how the crime was committed).
BUT if the solicitor is very particular on how he wants the crime committed (and turns out it cant be
committed that way), could be a defense.

MPC: Must be true legal impossibility (where there is no law prohibiting the conduct solicited). For factual
impossibility, just look at what D thought facts to be (so if believed true, guilty).
Abandonment: CL: Solicitor would probably have to communicate his change of heart to the person solicited
and perhaps even ensure that the crime was not committed. But typically no abandonment.
MPC: (1) D must either persuade the person solicited not to commit the crime or else prevent its commission.
(2) renunciation must be complete and voluntary (sincere change of heart rather than a discovery that the
offense is more difficult to commit than anticipated or detection is more likely).
Ex. Sports fan yells kill the umpire. If actually intended to encourage someone to kill umpire, then could be
convicted of solicitation (even if no one actually acted on this encouragement). Punishment could be up to
actually killing umpire; MPC would just punish as felony in 2nd degree. Unlikely had the intent here.
Ex. A wants R dead & approaches S who is legally insane (doesnt know right from wrong). A asks S to kill R.
S does not. S=Innocent Agent so A is guilty of attempted assault under CL (last act); MPC would say A
committed solicitation (focused on As attitude)
State v. Mann (NC 1986): Policy: Solicitor is more intelligent and masterful than the efforts of his hireling,
more dangerous than a conspirator. Morally more culpable.
State v. Cotton (NM 1990): D tried to solicit his wife via 2 letters to prevent his stepdaughter from testifying
against him at his trial. The letters were never sent, but he was charged solicitation.
- MPC section allowing charges for uncommunicated criminal solicitations was omitted from the state
statute in issue. Cannot be charged with solicitation, only attempted solicitation.
- MPC: uncommunicated solicitations treated the same as communicated ones.

D. Conspiracy
CL Definition: An agreement of 2+ individuals to commit a criminal or unlawful act or a lawful act by
unlawful means. Just need the agreement.
-Today, most jurisdictions require an overt act in furtherance of the conspiracy by one conspirator
before crime is committed.
-Other: substantial act in furtherance of the conspiracy (pushes criminality closer to the target offense)
MPC: Overt act unless the object crimes are serious felonies.
Some states (like Cal) make it a conspiracy for 2+ people to commit any act injurious to the public health, to
public morals, so not just criminal acts.
Merger/Punishment
CL- Merged into substantive offense. Today: Typically a separate substantive offense.
-So can be (1) convicted of both crime of conspiracy & target crimes actually committed in furtherance
of the conspiracy; AND (2) sentenced to consecutive (rather than concurrent) sentences for both
conspiracy & the target offense.
MPC- Punishment for conspiracy at the same grade/degree as the most serious object crime (but conspiracy to
commit a capital offense or 1st degree felony punished as a 2nd degree felony).
Policy: deter groups!; Counter: Conspirators caught before accomplishing criminal goal should be
punished less severely because have not done as much harm.
NO conviction of both conspiracy & target crime (except rare cases). But may be convicted of as many target
offenses s are committed in furtherance of the conspiracy (as perpetrator OR accomplice).
Prosecutorial Benefits of Conspiracy
Choice of Venue: Deemed to have been committed in any jurisdiction in which any member of the conspiracy
committed an act in furtherance of the conspiracy (even if act was not itself a crime).
Joint Trial: Same crime; co-conspirators may be tried together in a single trial.

Use of Hearsay Evidence: Law presumes that each co-conspirator is deemed to have authorized other
members of the conspiracy to act and speak on her behalf. Statements by co-conspirators made in furtherance
of the conspiracy can be admitted later at trial to prove D entered into a conspiracy.
-Bourjaily v. United States- determined by the Judge (prosecutor must prove by preponderance that
conspiracy exists using hearsay and non-hearsay evidence).
Responsibility for Crimes Committed by Co-Conspirators
CL: Pinkerton rule: each conspirator is responsible for: (1) any reasonably foreseeable crime committed by a
co-conspirator; (2) in furtherance of the conspiracy.
Powerful!: Est. vicarious liability for all foreseeable crimes w/o govt proving accessorial liability.
-Need not prove intent to aid/abet in crimes; just that they were foreseeable.
-Est. vicarious liability based on negligence (low culpability!)- need only show reasonably foreseeable
Ex. U.S. v. Alvarez- Ct affirmed murder conviction of 7 drug co-conspirators for death of federal undercover
agent after proposed drug sale erupted into a gun fight in which the Ds were not personally involved.
-Even though murder not in originally intended scope, it was reasonably foreseeable.
-Should have known the likelihood that: (1) 1+ carrying weapon; and (2) deadly force would be used, if
necessary, to protect the conspirators interests.
-Responsible even if disagree with conduct (but it turns out to be necessary);
-Not responsible for crimes already committed by co-conspirators.
MPC: Must satisfy MPC elements for accessorial liability (much narrower than Pinkerton).
-Conspiracy alone not basis for establishing complicity for all reasonably foreseeable substantive
offenses committed in furtherance of the conspiracy. D must solicit commission of the particular offense or aid,
agreed, or attempted to aid in its commission.
Duration:
CL: Conspiracy terminates when all of its objectives have been achieved or when all of its members have
abandoned all of its objectives.
-Maybe can use hearsay after the end if can show that ongoing concealment was essential to the
conspiracys success OR prove express agreement to conceal.
MPC: Presumes abandonment if no conspirator does an overt act in furtherance of the conspiracy during the
applicable statute of limitations.
-Terminated for individual if: abandons conspiracy by advising his co-conspirators of his
abandonment or informing law enforcement of the conspiracys existence & his participation in it.
Mens Rea:
CL: Specific intent. (1) D must intend to agree with someone else (more than approving of or seeking
anothers participation in a criminal purpose does not satisfy mental state, can be solicitation/accomplice)
(2) D must intend to commit the offense that is the object of the conspiracy.(intend that at least one member of
the group will commit the offense).
-Ex. If want to burn down apartment but hope nobody is in there. Conspiracy to commit arson &
guilty of murder (extreme risk creation/felony murder) but not guilty of conspiracy to commit murder
because did not have the specific intent to murder.
-Ex. U.S. v. Feola- Group wanted to sell powdered sugar as heroin. Wanted to use force to take money
if purchasers discovered that heroin was fake. Undercover agents were purchasers. Guilty of
Conspiring to assault a federal officer while engaged in the performance of his official duties!
WHY? Conspiracy statute only requires the prosecutor to est. same mens rea toward the circumstance
element (victim being a police officer) as that required for conviction of the substantive crime.
Ex. People v. Swain (1996): Conspiracy to commit murder, drive-by shooting.
o Since jury found death here is unintentional, cannot convict D of a specific intent crime
(conspiracy) unless the substantive offense also includes an intent element.
MPC: Must make agreement with the purpose of promoting/facilitating commission of a crime.
-Must have purpose as to conduct & result elements regardless of what the substantive crime requires.

Ex. D conspires to sell crack cocaine but thinks it is heroin (different criminal punishments).
Under Feola, conspiring to sell crack cocaine depends on whether the substantive offense
required him to act with the purpose of selling crack cocaine. (he could not have this purpose on
these facts). Under MPC, prosecution has to prove that D acted with the purpose of conspiring to
sell crack cocaine regardless of what the target offense required (so need to prove specific intent
to have the conspiracy even if would not need it for target offense).
Corrupt Motive Doctrine: Some states require an agreement to be entered into with an evil purpose (or intent
to break the law). Almost all states reject this, though.
Crimmins Doctrine: Reversed a conviction for conspiracy to transport stolen securities in interstate commerce
because govt failed to prove that D knew the bonds had moved across state lines. Just for federal law; here
didnt know the scope extended that far.
Ex. Although D can be convicted of running a traffic light he was unaware of, he cannot be found guilty
of conspiring to run a traffic light if he did not know there was a traffic light in the first instance.
BUT: in Feola more like knew were going to run red light, just didnt know beholden to federal laws
because light was actually on Indian Reservation.
Goods & Services: People v. Lauria- Owner of telephone answering service charged alongside 3 prostitutes
with conspiracy to commit prostitution. Lauria knew some of his customers used service for prostitution.
-Govt must prove intent NOT knowledge alone. Can show with stake in the venture: (1) D charged
excessive prices; (2) no legit use for the goods services (ex. selling gambling equipment in a state that
doesnt allow gambling); or (3) volume of Ds biz with buyer is grossly disproportionate to any legit
demand for goods or services.
Actus Reus:
CL: Old: just an agreement between 2+ parties to commit criminal
Agreement can be indirect but must show a shared determination to accomplish a goal.
Overt Act: One member of conspiracy must commit an overt act in furtherance of the conspiracy.
-Can be something lawful (buying a ladder; renting a van)
Some states want a substantial step (see attempt)
MPC: If first/second degree, no overt act necessary.
Commonwealth v. Azim (1983): D & two others arrested for simple assault, robbery, conspiracy. D drove J &
R , J & R assaulted someone & robbed him as he sat at the wheel, then he drove them away.
o Here, conspiracy is established and upheld, and he is guilty of the criminal acts of the other two.
o Although conspiracy cannot be based on mere suspicion, may be inferentially established
Commonwealth v. Cook (1980): Girl began hanging out with two brothers. They decided to walk to a
convenience store, the girl fell in a wooded area and one brother jumped on her and raped her.
o Should brother of rapist be guilty of conspiracy to commit rape?
o Here, no, but became implicated as an accomplice after it commenced.
Parties to a Conspiracy
CL: Need 2+ guilty persons (not one guilty & one undercover police officer/legally insane person).
MPC: More unilateral, allows conviction of any one person who agrees with another person to commit a
crime. In essence imposes liability on someone who believes he has agreed with another person to commit a
crime.
Abandonment Defense:
CL: No abandonment defense. Crime complete with the agreement.
MPC: Allows renunciation. (1) D must have thwarted the success of the conspiracy; and (2) abandonment
must be complete and voluntary. Undoes offense
Withdrawal Defense:

CL: Give reasonably adequate notice to all co-conspirators that you no longer intend to take part in the criminal
plan in time for the other conspirators to abandon the conspiracy.
-Does not undo offense of conspiracy nor of any substantive crimes already committed. BUT begins
the running of the SoL & limits the admissibility of co-conspirator stmts & actions occurring after
withdrawal.
MPC: Must either advise co-conspirators that he is no longer involved OR inform law enforcement of the
conspiracy & his involvement in it.
-People v. Sconce: S set up hit on Cs estranged husband. Hit man finds someone to do it. S withdraws by
calling it off, but message never gets to hired hit man. Even if withdraws, should S still be liable for conspiracy
charge?
-Sconces withdrawal does not constitute a defense to liability for the conspiracy itself.
-Withdrawal only a defense to liability for commission of the substantive offense.
Common Law
Model Penal Code
Rationale: Inchoate crime & group liability
Rationale: Treated solely as inchoate crime
Unlawful Act may be object of conspiracy
Only a crime may be the object of conspiracy
No overt act required
Overt Act reqd except for 1st & 2nd degree felonies
Does not merge with target offense
Merges with target offense unless criminal objectives go
beyond particular offenses
Specific intent required for all material elements
Purpose required for conduct and result elements;
unclear if purpose required for circumstance elements.
Pinkerton rule adopted
Pinkerton rule rejected; accomplice liability required
No renunciation (no abandonment)
Renunciation permitted
Withdrawal Permitted
Withdrawal Permitted
Impossibility
Legal Impossibility: Actors belief that they are breaking the law cannot generate criminal responsibility where
there is no law proscribing their conduct.
Factual Impossibility: Crime is completed at the moment of the agreement. But some require an overt act.
Ex. A& B agree to kill C while C sleeps. A buys a gun in furtherance of that agreement. C dies in sleep
due to a heart attack, a few hours before B shoots at C. Can be convicted of conspiracy to murder C
even though: (1) Some juris., shooting at C is legal impossibility (B not guilty of attempt. Murder)
(4) Under MPC, a factual impossibility , B only guilty of attempted murder because he thought C was still
alive.
Not a defense, already conspired.
Spectrum of criminal conduct: Solicitation Conspiracy Attempt Substantive Crime.
Whartons Rule
-If substantive crime requires 2+ people to do a crime in concert (adultery, sale of drugs), cannot charge
conspiracy if the only parties to agreement are those necessary to commit the crime.
ASK: Whether the agreement poses the distinct kinds of threats to society the law of conspiracy seeks to avert
-Iannelli v. United States: Conspiracy to violate gambling statute.
-Whartons Rule applies only to offenses that require concerted criminal activity, a plurality of criminal
agents, both conspiracy and substantive offense require collective criminal activity. Merge when
substantive offense proved.
-Exceptions
-Third-party: renders Wharton Rule inapplicable when more persons than necessary to commit the
crime are involved in the agreement.
Legislative Exemption Rule
Person may not be prosecuted for conspiracy to commit a crime intended to protect that person.

-Gebardi v. United States (1932): Man & woman charged with conspiring to transport woman from one
state to another for purpose of engaging in sex with man. Statute only punished transporter not her
conduct. Otherwise, undermine public policy.
-Comparison: a person buying illegal alcohol is not part of conspiracy of selling that alcohol

Complicity
Imposes Criminal Responsibility on Individuals for a Crime Committed by Someone Else, usually
because these secondary actors have intentionally helped or encouraged the primary actor to commit the
crime. Complicity is typically just another way to commit a crime.
1) Physical Aid: D can physically help another person commit a crime. Ex. might obtain the gun used by
the primary actor in the bank robbery. Or maybe act as a lookout/getaway driver.
2) Psychological Aid: D can encourage or reinforce a primary actors decision to commit a crime. Ex.
May urge a fellow gang member to shoot a rival gang member who has shown her disrespect.
Principal & Accomplice: As liability is determinant on P committing a crime or a criminal act.
-For CL, inverse is true, too (P doesnt commit, then A cant be charged). MPC doesnt use this
method.
Rationale for Accomplice Liability: Definitely not based on causation (the law assumes that Ps act is
volitional and not physically caused by As encouragement/assistance). Need not even have but for causation for
A to be liable.
-Instead, A (by her actions and her state of mind) has chosen to adopt Ps criminal act as her own.
-Extended her will to embrace the actions of another. Ps crim act is now her crim act.
-Demonstrated from her own state of mind that she is a socially dangerous individual.
As guilt is still personal because requires proof of mens rea and a voluntary act for A.
Criticisms: 1) Extends the net of crim responsibility too wide (punishes truly peripheral actors who did not play
a significant role in causing harm); 2) Punishes a D more for attitude than for the significance of Ds actions; 3)
Modern trend to punish accessories just as harshly as principals (punishment not proportional to Ds moral
guilt);

Definitions:
CL: Principal in the First Degree (P-1): 1) Personally commits the crime OR 2) Uses an innocent agent to
commit a crime.
-Innocent Agent: 1) Commits crim act but 2) lacks capacity to commit a crime or the mens rea for the
crime AND 3) is fooled or forced to commit the criminal act. Could be a person/inanimate object/etc
Ex. Drug dealer deceives a teen to deliver drugs by telling him it is medicine.
Bailey v. Commonwealth (1985): B & M were neighbors & were feuding over citizens band
radios. Both intoxicated. B knows M cannot see, is drunk, easily agitated, etc. Tells M to come
on front porch w/ gun & wait for B to come injure or kill him. B calls police and makes false
reports about Ms activity. Police end up killing M when they get to his house because he shoots
at them thinking they are B. It was proper to convict B of involuntary manslaughter.
Actus Reus of innocent agent is combined w/ P-1s mens rea to impose liability on the P-1.
Principal in the Second Degree (P-2): Intentionally helps or encourage P-1 to commit the crime & is actually
present at the crime scene or is constructively present (near enough to assist P-1 if needed).
Ex. Lookout; Getaway Driver.
Accessory Before the Fact (A-BTF): Intentionally helps P-1 beforehand (Ex. obtaining murder weapon or
encouraging P-1 to commit murder) BUT is not present when P-1 commits the crime.
Accessory After the Fact (A-ATF)- Though not part of planning/commission of crime, intentionally renders
aid AFTER the crime. (Ex. furnish plane tickets; destroy evidence).
-Exception: no Spouses because expected to aid one another.
Note: Treason- All parties to treason were treated as principals.

Requirement of Guilty Principal: A-BTF & P-1 could be tried together BUT A-BTF could not be convicted
unless P-1 convicted first.
-Even if P-1 was guilty but could not be prosecuted (i.e. diplomatic immunity), A-BTF off the hook.
-MPC does not have this rule.
Note: P-1 & P-2 could be prosecuted in any sequence and did not affect guilty of other if one acquitted.
MPC: 2.06: just gets rid of A-ATF (made a separate crime= After Target Crime: Hinders apprehension or
prosecution- 242.3)
A-BTF=Before Target Crime Principal- (1) Solicits another to commit a crime, which is then committed by
person solicited; OR 2) Aids, agrees, or attempts to aid another in planning a crime who then commits the
crime; OR 3) Having a legal duty to prevent the commission of the crime & failing to do so.
P-1=During Target Crime Principal- (1) Personally commits Target Crime; OR 2) Uses innocent or
irresponsible person;
A=Principal- Aids, agrees, or attempts to aid another in committing a crime.
A-ATF=After Target Crime- Hinders apprehension or prosecution.
Contemporary Law: P-1; P-2; A-BTF = Principal if primary actor; Accomplice if secondary actor.
A-ATF= treated less harshly than those actually involved in planning/commission. Usually convicted of
rendering criminal assistance or criminal facilitation, etc

Accessorial Responsibility
Mens Rea- Two Kinds of mens rea required:
1) Mens Rea of the Crime Aided;
2) Mens Rea to be an Accomplice: Purpose/Intent to Aid the
Principals Criminal Action
1) AID: Mens Rea of the Crime Aided: CL- Must act with at least the same mens rea or culpability required
for conviction of the offense committed by P. Ex. If object crime requires specific intent, A must act with
specific intent. If only requires recklessness/negligence as to result, then that is all that is needed.
MPC- (Same) at least the same culpability or mens rea of the crime being aided.
2) ABET: Intent that the principal commit the conduct constituting a crime.
CL- Need to want to help someone else commit a crime.
-Conduct: Need to act with the purpose/intent to encourage/assist in the conduct element of a crime.
-Unintentional assistance does not result in responsibility as an accomplice.
-Makes sense to have such a high level of mens rea (such an insignificant actus reus).
-Recklessness or Negligence as to Result- Generally, A must act with the same mens rea toward result
as is required to convict P of the same object crime.
-Ex. P hot wires car & A is lookout. Both jump into car & speed away. P hits & seriously injures
V. P and A may be convicted (A as an accomplice) if prosecution can show A acted with
recklessness toward the result.
-Riley v. State (2002): 2 Ds shoot into crowd. Dont know which one caused the injury, but both
were reckless. Cant prove intent, just recklessness. Focus is on encouraging conduct (not the
result) that causes the injury. Sufficient for accomplice liability.
-Conviction: recklessly causing serious injury.
-State v. Foster: Vs friend1 goes to find rapist. Friend2 stays w/ suspect while other get
someone to identify him. Friend fatally stabs suspect when he charges. Friend1 charged as
accomplice & friend2 as principal in negligent homicide.
-Strict Liability- Typically, if A assists P in committing a SL offense, A is not convicted of the crime
(seen as unfair). But if A knows all of the facts that constitute an offense, then could be convicted.
MPC- A Must act w/ the purpose of promoting/facilitating the commission of an offense.
-Conduct: A must have as her purpose that P will engage in the conduct elements of the object crime.
Mere knowledge as to Ps conduct is insufficient.

-Circumstances: Cts can decide whether purpose as to circs is required for conviction or simply the
same culpability/mens rea toward circs as is required for the object crime. If a court requires purpose,
then it may be a higher culpability than that for P.
-Result: Same culpability/mens rea toward result as would be required for Ps conviction for the object
offense.
State v. Hoselton (1988): D w/ group of friends. Friends broke into vessel & stole items. D unaware of
their intent to steal, normally went there to fish. Did not assist others or receive any property & was
driven home afterward. Did not intend to act as a lookout. Reverses conviction. H did not share intent,
& did not aid. No Dual Intent. No Actus Reus.
Knowledge that Another INTENDS to Commit a Crime
-Some Cts attach liability to an individual helping others they know intend to commit serious crimes.
-Most go with MPC, requiring purpose/intent rather than knowledge for accomplice responsibility.
-See Lauria
Providers of Goods/Services
CL: Usually must have purpose to aid. Must show that D had a stake in the venture (Ex. providers
success/profits depended on helping P successfully commit the object offense or the provider has a
psychological involvement in Ps success).
-Look at materiality of the aid provided to P + Profits the Provider Realizes.
-Can glean purpose from knowledge + volume/profits.
MPC: Must have the purpose of promoting or facilitating the commission of the crime.
Some states have created criminal facilitation (less serious) to punish those who knowingly provide another w/
significant aid used to commit a serious crime.
Liability for Unintended Crimes Committed by the Principal- Natural & Probable Consequences
-A guilty if offense he intended to facilitate/encourage but also of a reasonably foreseeable offense committed
by the person he aided.
-Liability for secondary crime committed by principal established by showing:
-Actor intended to promote primary crime, AND
-Commission of secondary crime was foreseeable consequence of participation in primary crime.
-Four-step process: Does foreseeable consequence rule apply?
-Primary party committed the target offense?
-Secondary party was an accomplice in commission of target offense.
-Primary party committed another crime, beyond target offense.
-Were latter crimes reas. foreseeable consequences of original crimes encouraged by the aider/abettor?
State v. Linscott: foreseeable that someone would be murdered while committing armed robbery at a home.
-Could have been felony murder.
-Conspiracy theory Pinkerton: liable for co-conspirators crimes.
ACTUS REUS (Aid/Abet/Counsel)
Actual Assistance- Physical & Psychological.
-Regina v. Richards (1974): R solicited 2 men to grievously injure her husband. They injured him.
Count 1: intent to grievous bodily harm. Count 2: simple wounding. Men convicted of Count 2, R
convicted of Count 1.
-Rs conviction overturned.
-Actual assault took place but not an aggravated one. She could not be held liable if the men
never committed the assault.
Omission- CL: No, unless A has a legal duty to act. Ex. Police officer stands by and watches P attack & rape
V in a bar has satisfied the actus reus requirement.
-MPC: Same as above. Person who has legal duty to prevent the commission of the offense is
responsible for that offense if he fails to make proper effort to prevent it.

How Much Aid is Enough? CL: Wilcox v. Jeffrey (1951): journalist prosecuted for aiding & abetting after
attending concert of, & writing about, U.S. musician that performed without a work permit in the U.K. So
accomplice liability without any meaningful causal connection between As presence & Ps crime.
-P need not know that A is assisting him before A can be found guilty of accessorial liability.
-MPC: Broader. ANY EFFORT at aiding (even if ineffective/unknown to P) satisfies actus reus rqmt.
-So even an attempt to provide aid is sufficient (even if unsuccessful).
-Ask has the accomplice done enough to persuade a jury that he acted with the purpose of
aiding in the commission of the crime, even if he wasnt helpful at all?
Immunity from Conviction- CL & MPC recognize Legislative Exemption.
-In re Megan R. (1996): 14-year-old girl charged & convicted of burglary because she aided & abetted
her own statutory rape by letting the man in the house.
-Reversed. 14-year-old cannot be convicted of burglary predicated upon finding she aided and
abetted her own statutory rape.
RELATIONSHIP BETWEEN PRINCIPAL & ACCESSORIES
Differences in Degree of Culpability Between Principal & Accomplice: Does Ps responsibility establish an
upper limit to As responsibility? Typically no! Allow law to assess the moral culpability of each party
according to his or her individual mens rea.
Corroboration rule: many states caution jurors to treat testimony of an accomplice, or witness who might be
an accomplice, with caution.
-State v. Helmenstein: five kids go to grocery store to rob it. Three of them actually break in. Only
information against H is from accomplices. Saying I want some bananas is enough.
-In many states, cannot be convicted solely on testimony of accomplices.
Must Show there WAS a Principal: U.S. v. Lopez (1987): BF helps GF escape. Argues if GF is acquitted from
her escape charge on necessity defense (justificationlesser of two evils), he should be acquitted too.
General rule: D can be convicted of aiding and abetting even if the principal not identified or convicted,
but may not be held liable absent proof criminal offense committed.
-BF is entitled to jury instruction that he cannot be found guilty of aiding and abetting her escape.
Actual crime necessary?
-People v. Genoa (1991): undercover officer offers to buy drugs & sell it if D will give him $10k, he will return
some profits to him. Charged with attempted possession with intent to deliver.
-Problem: no criminal act ever intended or performed. G not guilty of attempt as accomplice. Like an
impossible attempt.
-Rule: derivative liab. under accomplice liability must derive from actual crime (Conviction unnecessary).
-Guilty under MPC 5.01(3): not accomplice liability, just guilty of attempt. (like solicitation?)
o Attempted Accomplice
o CL: must have some act, more than just attempting to help act can be minimal/trivial, but
there as to be an act that actually assists. (no such thing as attempted accomplice)
o MPC: can be liable if you try to assist. Do not have to actually assist.
Withdrawal of Aid: CL- (Similar to conspiracy)- A Must (1) Inform P not to commit the offense; and (2) do
everything possible to render ineffective any aid she had already given.
MPC: A must terminate his complicity before P commits the offense and do one of the following: (i)
completely deprive the aid of its effectiveness OR (ii) give timely warning to the police; OR (iii) otherwise
make a proper effort to prevent the commission of the crime.

-State v. Formella: one group of high schoolers steal math tests while the others agreed to be lookouts, but
decided not to help. Nonetheless, they shared the math tests. Deprive effectiveness of assistance provided. Must
rescind prior to the act give the principals time to reconsider.
-Withdrawal: making disapproval known, negate your assistance.
Ex. L robs a bank. B drives getaway car.
-CL: B intentionally provided assistance to L while she committed the bank robbery. B is principal in
the 2nd degree because present & actually rendering assistance while L (P-1) was committing a crime.
-MPC: B considered a principal & convicted of bank robbery because purposefully rendered aid to one
he knew was committing the crime.