Nancy Combs

Criminal Law

Fall 2014

Criminal Law Outline

Theories of Punishment
1. Incapacitation
2. Retribution
a. Punishment is imposed to compensate society for the wrong
3. Deterrence
a. General
i. Intimidation (discouraging others from committing crime)
b. Specific
i. Incapacitation (discouraging/preventing the offender from committing
crimes)
4. Rehabilitation
a. Imprisonment allows us to reform the criminal into a person who will conform
behavior to societal norms upon release

Actus Reus evil act

1. Act
a. Physical act or unlawful omission
2. Omission
a. MPC
i. No duty to act unless made sufficient by law defining offense or
required by law
b. Exception Groups
i. Personal relationship
ii. Contractual obligation
iii. Creation of the risk
iv. Voluntary assistance
c. Good Samaritan Statute
i. Few states adopted
ii. Required to provide assistance as long as no danger to yourself
3. Possession
a. Still considered an act for purposes of crime
b. Some states have legislated it to be an act

Mens Rea
1. Purpose/Intent
a. MPC
i. Conscious object to engage in the prohibited conduct or cause the
prohibited result
ii. Allows conviction if specific act brought about ordinary consequences
that were unintended
b. Transferred Intent
i. If you intend to kill A but accidently kill B instead, intent requirement
still met
c. General vs. Specific Intent
i. General
1. Intend certain act

2.

3.

4.
5.

Nancy Combs
Criminal Law
Fall 2014
ii. Specific
1. You perform an act with the intent of additional act
2. Burgarly: breaking and enteringwith intent to commit a felony
therein
d. Circumstances
i. b/c can never know a persons true intent, look at circumstances
surrounding act
ii. objective standard, essentially
Knowledge
a. Awareness
i. When knowledge is element, it is established if a person is aware of a
high probability of its existence unless he explicitly believes it is not
true
b. Practical Certainty
i. Practically certain that conduct will produce result = knowledge
c. Proving Knowledge
i. Inference
1. Jury is allowed to draw inferences from facts
ii. Willful blindness
1. 110lbs of marijuana in car
2. still constitutes knowledge
3. subjective standard what the offender actually believed
Recklessness
a. Act with a conscious disregard of a substantial and unjustifiable risk
b. Gross deviation from the standard of conduct of a law abiding person
c. Mere realization of the risk insufficient
Negligence
a. Should be aware of a substantial and unjustifiable risk but is not
b. Violation of statute or ordinance may be evidence of liability
Mens Rea not stated
a. If not stated, established if D acted purposely, knowingly or recklessly
b. If statute doesnt state mens rea for each element, then mens rea applicable
to one is applicable to all unless otherwise noted to the contrary in the
statute

Strict Liability
1. No mens rea requirement
2. Examples are: statutory rape, bigamy, public welfare offenses
3. Public Welfare Offenses:
a. Conduct that could seriously threaten publics health or safety or is
inherently dangerous
4. Statutory interpretation
a. Legislatures do not always say strict liability crime
b. When mens rea left out, courts have to decide if strict liability; consider:
i. Penalties
ii. Policy
iii. Nature of harm
iv. Legislative history

Nancy Combs

Solicitation

Criminal Law

Fall 2014

Intentionally commands, requests or encourages another to commit a specific offense.

1. Actus Reus: command, request, hire, ask, etc.
2. Mens Rea
a. Specific Intent (must prove, i.e. Dickerson, male prostitute case)
b. You intend to solicit and you intend for the completed crime
3. Withdrawal
a. MPC
i. It is a defense with
1. After solicitation
2. Persuaded them not to do the crime or prevented the crime
3. Complete and voluntary renunciation of criminal purpose
ii. Cannot be a result of unforeseen consequences or informers, etc
4. Merger
a. Solicitation merges with the completed offense; you cannot be guilty for both
b. If you ask and they say:
i. Yesconspiracy
ii. Yes and tryconspiracy and attempt
iii. Completedaccomplice liability
iv. Nosolicitation
5. MPC v CL
Solicitation
Type of crime
Uncommunicated
Withdrawal
Punishment

MPC
you ask someone
to help you commit
a crime
ANY crime
Counts
Defense
Same as target
crime

CL
You ask a specific
person to commit
a crime
ONLY felonies
Does NOT count
No defense
Much less harshly

Conspiracy
An agreement between two or more people formed for the purpose of committing a
crime
1. Actus Reus
a. Act of making the agreement
b. Can infer agreement through circumstances (dont need direct evidence)
2. Mens Rea
a. Specific Intent
i. You intend to make an agreement and you intend to commit the crime
b. Attendant Circumstances
i. Same mens rea for conspiracy as for the completed crime
ii. Variation when attendant circumstances are an element of the crime
c. Knowledge

3.

4.

5.

6.

Nancy Combs
Criminal Law
Fall 2014
i. You can infer intent to conspire without any overt act when the D has a
stake in the criminal activity (Direct Salesselling lots of morphine)
ii. Infer when
1. D furnishes goods at grossly inflated price
2. Disproportionate share comes from buyer who is making illegal
use of product
3. D provides goods/services for which there is no lawful use
MPC v. CL
a. MPC
i. Plurality Requirement: only need 1 (other person undercover agent or
was acting)
ii. you do not need to know the other persons identity
b. CL
i. Plurality Requirement: you need at least 2 people
Pinkerton Liability
a. You are G for all foreseeable consequences that are in furtherance of the
conspiracy
i. natural and probable consequences and foreseeable
b. MPC rejects Pinkerton Liability
Merger Doctrine
a. Federal Courts
i. Conspiracy does NOT merge with substantive offense
b. State Courts
i. Varies by jurisdiction
c. MPC
i. DOES merge, unless conspiracy encompasses criminal behavior
beyond completed crime
Scope of Conspiracy
a. Wheel Model
i. One central hub with many spokes that branch off
ii. Spokes CAN be liable for conspiracy with other spokes so long as their
contact with hub is part of a broad criminal enterprise (they have a
stake in everyones success)
1. NL between spokes if just parallel criminal enterprise with hub
2. Must have shared, single criminal objective between similarly
situated people
b. Chain Model
i. CL you did not have to know of the other links in order to be L for
conspiracy
1. Must be aware of them
ii. MPC you are linked based on your knowledge of the other players
1. Further away your link in chain, harder to prove conspiracy

Accomplice Liability
1. Outdated standard: principal first degree, principal second degree, accessory
after the fact
2. Accessory before the fact
i. Not present at the scene of the crime

Nancy Combs
Criminal Law
Fall 2014
ii. Assistance may be verbal encouragement, financial assistance, or
physical assistance
iii. D consciously shared the principals knowledge of the criminal act and
intended to help the principal
b. Criminal Liability
i. Responsible for the crime to the same extent as the principal
ii. However, if principal commits more than what was planned, not
responsible for that crime unless they are the natural and probable
consequence of the conduct
c. Withdrawal
i. Must make affirmative act
1. You must attempt to withdraw the help you gave the person. So
if you encouraged and gave them a gun, you need to discourage
and try and get the gun back
ii. Must communicate your withdrawal
d. Exception
i. If you are a protected class and victim of the statute, you cannot be
accomplice
ii. If the conviction is not an intended consequence of the legislature
3. Accessory after the fact
a. Common Law:
i. Commission of an underlying offense;
ii. Knowledge of that offense; and
iii. Assistance by D to prevent apprehension, trial or punishment of the
offender
b. MPC:
i. Completed felony
ii. D harbored, concealed or aided felon
iii. D had knowledge of committed felony
iv. Actions done with the intent to help escape arrest, trial, conviction or
punishment

Attempt
1. Actus Reus
a. CL: Proximity Tests (proximity between Ds act and completed crime)
i. Last Proximate Act
ii. Physical Proximity
1. Was the D physically close to being able to complete the crime
iii. Dangerous Proximity
1. Temporal and geographic proximity
2. Existence of contingencies
3. Ds ability to complete the offense
b. Nature of the Act Tests (consider what the D has done and whether it is
corroborative of criminal purpose)
i. Substantial Step (MPC)
1. attempt must be very near or dangerously close to the
accomplishment of intended crime
ii. Desistence Test

Nancy Combs
Criminal Law
Fall 2014
1. Conduct constitutes attempt if, except for outside intervention,
the crime would have been committed
2. Mens Rea
a. Specific intent
i. You intend to commit the acts and you intend for the crime to be
committed
b. Transferred Intent
i. If you shoot to kill A and instead kill B, L for attempt to kill A and
murder of B
ii. Weird anomaly because if you didnt miss, only L for murder of A
3. Which crimes:
a. Yes (essentially intentional crimes)
i. Intent to Kill
ii. Voluntary manslaughter
b. No (essentially unintentional crimes)
i. Intent to cause SBI (murder)
ii. DHM
iii. FM
iv. IM
c. You can be guilty of attempt for negligent/reckless conduct crime
d. You cannot be guilty of attempt for negligent/reckless result crime
4. Defenses
a. MPC: Abandonment
i. Not a defense in many jurisdictions
ii. MPC defense only if
1. D abandons under circumstances manifesting complete and
voluntary renunciation of criminal purpose
2. NOT from unanticipated difficulties, unexpected resistance,
circumstances that increase chance of being caught
3. i.e. motivation to abandon must be completely from D
b. Impossibility
i. Factual (L)
1. Objective is forbidden by law, but some factual circumstance
makes it impossible to commit the act
2. You can do the criminal act itself (you can actually put your hand
in someones pocket)
3. Examples: shooting an unloaded gun, picking an empty pocket
ii. Legal (NL)
1. Intended act is not a crime
2. Examples: fishing in a lake no permit needed
iii. Hybrid Legal (L)
1. Your goal is illegal but you are unable to carry it out given a
mistake you made about an attendant circumstance
2. You cannot complete the criminal act (you cannot actually kill
someone is already dead)
3. Examples: killing someone already dead, selling soap powder
you thought was heroine
iv. Inherent Impossibility
1. You have the mens rea to complete the crime but the way you
try makes it completely impossible to commit

Nancy Combs
Criminal Law
Fall 2014
2. MPC says up to courts to decide lower sentence or dismiss
3. Examples: I want to kill you and I (knowingly) use a bubble gun

Homicide
the killing of a human being by another human being
1. Beginning and end of life issues
a. Keeler case
i. CA defined murder as unlawful killing of a human being with malice
aforethought
1. Rule of Lenity: if there are two interpretations of a statute, we
must use the one most lenient to D
ii. Fetus was determined not to be human being
iii. Many jurisdictions have created feticide as a result
b. End of Life
i. CL: Year and a day rule: if the person died after that time, no
conviction
1. Some jurisdictions have extended the time limit
ii. Mercy Killings: still intent to kill, motive irrelevant
2. Common Law Murder
a. Intent to Kill
i. First Degree Murder
1. MR: CLpremeditation, MPCpurposefully
2. Mens Rea (intent; can be inferred from actions)
a. Premeditation
i. Thinking about it beforehand
ii. Evidence:
1. Evidence of planning
a. Weapon used
b. Method of killing
2. Motive for the killing
iii. Time Elapsed
1. Courts vary significantly
2. Some require an appreciable time
3. Others say mere seconds is sufficient
b. Deliberation
i. The cool, careful consideration of a crime
c. Examples (from CA penal code)
i. Arson, rape, carjacking, robbery, burglary, mayhem,
kidnapping, train wrecking
3. Second Degree Murder
a. Anything that cannot be classified as first degree
b. Generally, no premeditation or deliberation
b. Intent to Inflict Serious Bodily Injury
i. Mens Rea (intent; can be inferred from actions)
1. Intent to commit serious bodily injury
a. Substantial risk of death
b. Protracted unconsciousness
c. Extreme physical pain
d. Disfigurement

Nancy Combs

Criminal Law
Fall 2014
e. Impairment
2. Death is the natural and probably consequence of your actions
ii. Actus Reus
1. The act of seriously injuring the person, which eventually leads
to death
c. Depraved Heart Murder
i. MPC: committed recklessly under circumstances manifesting extreme
indifference to the value of human life
ii. CL: Mens Rea (recklessness)
1. Conscious disregard of substantial and unjustifiable risk that has
high probability of causing death or SBI
2. Malice
a. wickedness of disposition, hardness of heart, cruelty,
recklessness of consequence and a mind regardless of
social duty and deliberately bent on mischief, though there
may be no intention to injure a particular person
3. Awareness
a. D has to be aware of the risk; jury decides
b. Exception: mentally disabled
c. Intoxication no defense
4. Difference from Reckless Manslaughter
a. DHM: EXTREME indifference to value of human life
b. RM: conscious disregard of substantial and unjustifiable
risk
iii. Actus Reus
1. Outrageous behavior
d. Felony Murder (felony + death = murder)
i. MPC
1. Specific felonies only; attempt to commit felony + death counts
a. Arson, burglary, felonious escape, kidnapping, rape,
robbery
ii. CL
1. Murder if someone dies during commission of a felony
iii. Limitations
1. Inherently Dangerous felony
a. In the abstract
b. As it was perpetrated by this defendant
2. Felony is independent of the homicideMerger Doctrine
a. The underlying felony must be independent of the killing
b. If the two are related (i.e. assault and you die) then the two
are merged and it cannot be felony murder
3. Strict interpretation of proximate cause requirement
a. Foreseeable result?
i. Causation Theory: homicide must have occurred in
response to a felony
ii. Agency Theory (majority): person causing death
must be in commission of a felony
b. Sale of Drugs
i. Usually no FM (unless actively involved during death)
ii. Factors

Nancy Combs

Criminal Law
Fall 2014
1. Present?
2. Administered the drugs?
3. Advice on dose?
4. In commission of the felony
a. Place of temporary safety
i. Res gestae: time elapsed, distance and causation link
b. Death before or after felony
i. Before: some js allow if intent already formed
ii. After: if a direct result of the felony
5. Killing done by someone other than the felon
a. PA: felon must be shooter
b. CA: felon must be shooter or death result of additional
malicious conduct by felon
c. TX: doesnt matter who shoots
6. Co-Felon Death
a. Some jurisdictions allow some do not allow this to count as
FM (redline limitation)
7. Aaron Case
a. Completely abolished FM doctrine
b. Malice is an essential element of murder and need to prove
malice in order to convict for murder
c. Minority of jurisdictions have abolished FM
3. Model Penal Code
a. Purposefully, knowingly
b. Recklessly, manifesting extreme indifference to human life (DHM)
c. Felony Murder
i. Only for specific felonies: robbery, rape, arson, kidnapping, felonious
escape
4. Degrees of Murder
a. Modern distinctionno distinction at common law
b. First Degree Murder
i. Premeditation (thinking about it beforehand) and Deliberation (cool,
careful consideration of the crime) required
1. Factors
a. Took victim to remote location
b. Weapon/method of killing
c. Planning activities
i. Visit site?
ii. Track victim movements?
iii. Materials to cover up crime?
d. Defendants statements
e. Motive for killing
2. Time elapsed
a. Some courts say mere seconds is enough
b. Some require more appreciable time for thoughtful
consideration

Manslaughter
Homicide without malice

Nancy Combs
Criminal Law
Fall 2014
1. Voluntary Manslaughter
a. Common Law:
i. intentional homicide done in a sudden heat of passion, caused by
adequate provocation before there has been a reasonable opportunity
for the passion to cool
1. Adequate Provocation
a. CL: Adequate provocation (automatic VM)
i. discovering wife having sex with another
ii. mutual combat
iii. assault and battery
iv. death resulting from illegal arrest
b. Modern trend: send everything to jury to decide
i. Jury Q: whether the provocation was such as would
inflame the passions of a reasonable person
ii. Words alone:
1. words alone are not adequate provocation for
manslaughter exception unless (1) the words
are accompanied by an imminent physical
threat or (2) minority view: the words are
informative (had you seen it yourself, that
would be adequate provocation)
c. Sliding Scale
i. Different jurisdictions allow more or less to go to jury
2. Reasonable Person
a. DO consider
i. Inherent characteristics relevant to provocation
ii. i.e., race, religion etc
b. DO NOT consider
i. Individual/voluntary characteristics
ii. i.e., hot tempered, intoxication
3. Suddenness
a. CL: had to be very sudden, almost immediate
b. Modern Trend: more time can elapse before killing
i. Example: rekindling of passion by words (I raped and
killed your daughter 10 years ago, okay even though
not sudden)
b. MPC
i. Homicide committed under influence of extreme emotion/mental
disturbance + reasonable excuse + reasonableness determined
through eyes of reasonable person with facts as D believed them to be
ii. Differences from CL
1. MPC no require specific provocation
2. No suddenness requirement (CL heat of passion requires
suddenness and no cooling off)
3. MPC more subjective (takes into account Ds beliefs about
situation)
2. Imperfect Self Defense
a. Mitigates homicide that would otherwise be murder to VM when one the
elements of perfect self-defense is not proven
b. Elements of Perfect Self Defense

Nancy Combs
Criminal Law
Fall 2014
i. D is NOT initial aggressor
ii. D used reasonable amount of force
iii. D reasonably believed:
1. In immediately danger of unlawful bodily harm
2. That use of force was necessary to avoid this danger
c. If you honestly, but unreasonably believed that deadly force was necessary,
ISD
3. Involuntary Manslaughter
a. Unintentional homicide resulting from reckless or grossly negligent behavior
i. Different jurisdictions require different mens rea (some recklessness,
some gross negligence, minority tort negligence)
b. Difference from DHM
i. IM: conscious disregard substantial and unjustifiable risk
ii. DHM: conscious disregard substantial and unjustifiable risk under
extreme circumstances manifesting disregard for value of human life
iii. DHM is IM + more risk
c. Mens Rea
i. Recklessness or gross negligence
ii. MPC
1. aware of a substantial and unjustifiable risk that the material
element exists or will result from his conduct.
2. The risk must be of such a nature and degree that the actors
failure to perceive it, considering the nature and purpose of his
conduct and the circumstances known to him, involves a gross
deviation from the standard of care that a reasonable person
would observe in the actors situation.
iii. Factors considered
1. CL: physical characteristics (i.e. mental level) into consideration
but not much else; objective standard
4. Misdemeanor Manslaughter
a. a homicide that occurs in the course of a misdemeanor is IM
b. Mens rea
i. Intent to commit the underlying misdemeanor
1. Purposeful, knowingly, negligently or recklessly
c. Limitations
i. Causal connection between misdemeanor and homicide
ii. Must be bad act to be convicted
1. Cannot be merely prohibited conduct (i.e. malum prohibitum)
d. Jurisdictions
i. About half states do not recognize doctrine
ii. Many jurisdictions do not recognize homicide from strict liability
(mislabel drug)
5. Causation
a. CL: year and a day rule: if the person died outside this time, you could not be
said to cause the death
i. MT: depends on jurisdictions. Some have elongated. Some have
abolished
b. But for causation + proximate cause = criminal liability
i. But for causation
1. Without the Ds conduct, would D have died when he did?

Nancy Combs

Criminal Law
Fall 2014
a. Yes NG (no causation)
b. No G (causation)
2. Simultaneous actions
a. Usually both liable
b. Is the action a substantial factor?
c. Usually accomplice liability anyways (because rarely do
two independent people shoot one person at the same
time)
ii. Proximate causation
1. Ds death sufficiently connected to Ds conduct that it is just/fair to
hold him responsible
a. Natural and foreseeable consequence?
b. Did the action accelerate the death?
2. Causal chain
a. Scenario: Ds act does not kill P but as a result of Ds act,
something X does causes Ps death
b. Question: does Xs act break the causal chain so that D is
NL for death?
c. Answer:
i. Distinction between responses and coincidences
1. Responses do NOT break chainL
2. Coincidences DO break chain UNLESS they are
foreseeable
ii. Gross negligence is not foreseeable and DOES break
chain

Rape
1. Definitions
a. Traditional: intercourse; effected by force; without consent; occurred after
victim resisted
b. Modern: intercourse; effected by force or fear; without consent; NO
RESISTANCE REQUIRED
2. Mens Rea
a. Sex: purposefully
b. Force: purposefully
c. No consent: most jurisdictions negligence (honest and reasonable belief);
some SL
3. Force Requirement
a. Required by most jurisdictions
b. Two possible definitions:
i. Penetration + nonconsent (majority)
1. MTS: the act of sex itself is sufficient force; consent must be
freely given but can be inferred from actions
ii. Penetration + nonconsent + some additional force
1. Berkowitz: if no forcible compulsion then no rape; verbally saying
no is not enough
2. Later state amendment: forcible compulsion by physical,
emotional, intellectual, moral or psychological force
4. Fear of Force

Nancy Combs
Criminal Law
Fall 2014
a. Two part test:
i. Subjective component: victim must actually fear force
ii. Objective component: victims fear of force be reasonable
b. Statutes
i. Early statute D had to use force
ii. Later statute force requirement not necessary if fear of force present
5. Resistance
a. Jurisdictional differences
i. Half states still have resistance requirement
ii. Most require victim to reasonably resist
iii. Some require resistance to the utmost
iv. Some require only enough to prove nonconsent
b. Purpose
i. Pros: solves credibility problem; helps with evidence
ii. Cons: greater likelihood of harm; victims respond differently
6. Consent
a. Fraud in Fact
i. Act done is different from what D said
ii. Vitiates consent
b. Fraud in the inducement
i. Act done as D said but for some ulterior purpose
ii. Does not vitiate consent
1. Exception: professional relationship (i.e. patient doctor)
c. Some jurisdictions have gotten rid of this distinction

Mistake
1. Mistake of Fact
a. Negates Intent
i. Must be an honest mistake
ii. Does not apply to strict liability because no mens rea to negate
b. Specific Intent
i. Valid defense, even if mistake is unreasonable
c. General Intent
i. Mistake must be reasonable to negate general intent
2. Mistake of Law
a. Valid only when:
i. Reliance on decision of court, administrative order, or official
interpretation of the law determined to be erroneous after the conduct
ii. If the statute states that MOL is a defense (Cheek tax evading pilot)
b. Ignorance of law no excuse
i. United States v. International Minerals
1. knowingly in statute is applied to that he knew shipping
hazardous materials, so mens rea still satisfied
c. MPC
i. Ignorance of law is irrelevant where statute establishes knowledge,
recklessness, or negligence as mens rea

Self-Defense
1. Generally

Nancy Combs
Criminal Law
Fall 2014
a. CL: Reasonable belief, that force is necessary, to repel an imminent,
unlawful attack
i. Objective reasonable
b. MPC: actor believes force is immediately necessary to protect against
unlawful force
i. If the actor is negligent or reckless in his belief, no defense allowed
ii. Subjective reasonable (Goetz)
2. Deadly Force
a. CL: Reasonable belief that force is necessary to repel an imminent, deadly
attack
i. Majority Rule: no retreat necessary
b. MPC: not okay unless threat of death, SBI, kidnapping, or rape
i. Minority Rule: retreat necessary if safe to do so
1. Exceptions
a. Castle Doctrine: you do not have to retreat from your own
home (or place of work)
b. Victim of rape or robbery
c. You are a police officer
d. **typically you do not have to retreat in the presence of a
gun because it is usually impossible to retreat in absolute
safety
3. Aggressor
a. No defense unless
i. Aggressor withdraws from the conflict and victim begins a new conflict
ii. The victim unjustifiably transforms the conflict from non-deadly to
deadly conflict (US v. Peterson)
4. Imperfect Self Defense
a. Mitigates homicide that would otherwise be murder to VM when one the
elements of perfect self-defense is not proven
b. Elements of Perfect Self Defense
i. D is NOT initial aggressor
ii. D used reasonable amount of force
iii. D reasonably believed:
1. In immediately danger of unlawful bodily harm
2. That use of force was necessary to avoid this danger
c. If you honestly, but unreasonably believed that deadly force was necessary,
ISD

Defense of Others
1. Same elements as self defense
2. CL: you only had right to defend others you had a duty to (employees, wife,
children)
a. Modern Tests
i. Alter Ego (old)
1. person can use as much force as actual victim can use
2. subjective
ii. Objective Test (modern)
1. D is justified in using force when he reasonably believed force
was necessary to prevent an imminent attack

Nancy Combs

Defense of Property

Criminal Law

Fall 2014

1. NEVER deadly force

2. D can use reasonable force to protect his property that is in immediate danger of
theft/trespass
a. Spring Guns
i. Old Rule: you could use it only if you could use a gun if you were
present
ii. Modern : you CANNOT use spring guns EVER

Defense of Habitation
1. CL (Broad) Rule
a. Deadly force ok if reasonable belief it is necessary to prevent imminent
trespass
2. Intermediate Rule
a. Deadly force ok if preventing trespass by someone who intends to commit a
felony
3. Narrow Rule
a. Deadly force ok ONLY for forcible and atrocious felony

Prevention of Crime
1. Majority Rule
a. DF to prevent a forcible or atrocious felony
2. Minority Rule
a. DF to prevent any felony

Necessity
1. CL
a. Elements
i. Immediate; dire need; emergency
ii. Through natural forces
iii. Harm avoided > harm from crime
iv. No lawful alternative
v. D not at fault in causing the emergency
2. MPC
a. Elements
i. Conduct actor believes necessary to avoid harm is justified when
ii. Harm avoided > harm from crime
iii. No law provides exception for this situation
iv. No legislative purpose to exclude this justification is apparent
(legislature cannot think of everything)
b. Recklessness/Negligence
i. If D was R/N in bringing about emergency situation + offense requires
R/N for culpability no defense

Duress
1. CL
a. Elements

2.

3.

4.

5.

Nancy Combs
Criminal Law
Fall 2014
i. Imminent threat
ii. Of death or SBI
iii. Reasonable fear of threat
iv. No opportunity to avoid harm
v. D not at fault/cannot have placed himself in that situation where likely
to be threatened (i.e. joining a gang)
vi. CANNOT be an intentional homicidedefense unavailable
MPC
a. Elements
i. Coerced to commit crime
ii. By force or threat
iii. That an ordinary person of reasonable firmness
iv. In his situation could not resist
b. Unavailable if
i. Actor recklessly placed himself in that situation
ii. Actor negligently placed himself in that situation if N is MR for offense
CL v. MPC
a. No imminence requirement
b. Lesser force allowed
c. Reasonable firmness
d. Homicide exception
What is NOT duress?
a. Financial threats
b. Battered womens syndrome
c. No imminence
i. Really must be IMMEDIATE threat
Difference from Necessity
a. Necessity natural forces caused
b. Duress human forces caused

Intoxication
1. Voluntary
a. Court Spectrum
Never
Never
(some)
(some)

Disprove
P&D
Disprove P&D
1st
Murder
1st Murder

Negates
Negates
specific
specific intent
intent
(CL)
(CL)

only
only
intentional
intentional
crimes
crimes
(MPC)
(MPC)

for
every
for every
crime
crime
(none)
(none)

b. MPC
i. Recklessness/negligence no intoxication defense
2. Involuntary
a. A form of insanity
b. MPC
i. At time of conduct lacks capacity to appreciate criminality or conform
conduct to requirements of law
c. CL
i. Negates mens rea for the crime

Insanity

1.

2.
3.
4.

5.

Nancy Combs
Criminal Law
Fall 2014
McNaughton Test
a. At time of crime
b. D did not know right from wrong
c. Or understand nature/quality of acts
Irresistible Impulse
a. D lacked capacity for self control + free choice
Durham Rule
a. Ds conduct product of mental disease/defect
McDonald Standard
a. Narrows Durham Rule
b. Mental disease/defect = abnormal condition of mind that substantially
affects mental/emotional processes + substantially impairs behavioral
controls
MPC
a. D lacked ability to appreciate criminality or conform conduct to requirements
of law
b. Mental disease/defect repeat criminal behavior/antisocial behavior