12/02/2014

Elements of Criminal Conduct

Sources of Criminal Law
Common Law: almost never followed anymore but is still important
Statutory interpretation (uses common law)
o Absent a definition to the contrary, it usually believed that the use of a common law term in a
statue retains it meaning
o Common law can also fill gaps in statutes
MPC
o When adopted by a state it is binding
o Otherwise it is persuasive
*Usable on the exam as persuasive
Types of elements: 1.13(9): an element of an offense means such conduct or such attendant
circumstance or such result of conduct
o Conduct: what D does or how D acts
E.g. enters, restrains, takes, makes
o Circumstances: background facts,, context, state of affairs static facts
A dwelling, belonging to another, at night, under 18, not open to public
o Results: effects of what D does
Causes death, causes bodily injury, brings about
Usually more about an end result that can be gotten there in multiple ways
Uses common sense
Types of crime:
o Malum in se: crime that is bad and of itself (morally wrong)
o Malum prohitum: crime that is bad because it is prohibited

Presumption
Nature of Presumption
o Sometimes it is hard to prove an element of a crime
o Context will determine whether this is good enough to presume the element
o Presumptions says: whenever X fact(s) are proven, a factfinder must (or may), presume Y
Y is usually an element of the crime charged
E.g. intent to kill
Only evidence is that the D picked up a loaded gun, pointed it in Vs
direction, and fired it.
Where this evidence is found the jury may find intent
o may find = permissive presumption
it is really an inference not a rule that formally shifts the burden of proff
an inference is rational if, and only if, the presumed fact (Y) more than likely than not
flows from the basic fact
o MPC
Allows permissive
If any evidence of the basic fact is presented at trial, the issue of the existence of the
presumed fact i.e., the element of the crime must be submitted to the jury unless
the presumption is so lacking in foundation that the D is entitled to a direct verdict on
the matter
Requires the judge to instruct the jury that the element at issue must still be proved by
the prosecution beyond a reasonable doubt, but that the law permits it to regard the
basic facts as sufficient evidence of the presumed fact
Actus Reus (Conduct)
The actus reus of an offense consists of (1) a voluntary act, (2) that causes, (3) social harm
Why we dont Punish Thoughts
o Actus reus is premised on the belief that it is morally wrong to punish people for unacted-upon
intentions
o Violate living in a free society
Voluntary Act
o General rule: generally, a person is not guilty of a crime unless her conduct includes a
voluntary act
Few criminal statues expressly provide for this requirement, but it is there as an
implicit element

Common law proof: See Martin v. State: D was charged with violation of an
offense that provided that any person who, while intoxicated or drunk,
appears in any public place.and manifests a drunken condition [shall be
convicted of an offense]; the court interpreted the word appears to
presuppose a voluntary appearance in public, which was not proven at Ds
trial
Case doesnt use the voluntary act doctrine to dismiss the case
because there was an act??

The Act
An Act is simply, a bodily movement, a muscular contraction
Pulls a trigger, raiser an arm, blinks her eyes, turns ignition key, walks
An act involves physical, although not always visible behavior
Talking
Excludes the internal mental processes of thinking about, or of developing an
intention to do a physical act (e.g. mental acts)
Aspects
Bodily movement may not count
If someone takes your arm and swings at someone else you have not
acted
Here the persons arm was propelled by another
Does not apply to the results of a persons bodily movements
E.g. setting a bomb and it going off an killing people
Killing people is not part of the act, just the setting of the bomb
That is part of the social harm
Some think that the act must be voluntary
Most disagree with this see below (MPC)
Voluntary
Movement of the body which follow out volition (will)
A voluntary act involve the use of the human mind; an involuntary act
involves use of the human brain, without the aid of the mind
You (no matter what your mind frame was) told you body to do what
happened????/
includes most movements so it is easier to define what is involuntary
Involuntary acts

reflexive actions, spasms, epileptic seizures, bodily movement while

the actor is unconscious or asleep
when someone has a seizure, we assume that there body hot someone,
not their mind
Habitual acts: Just because someone isnt sure that they are doing something
does not mean the act is not voluntary
E.g. a chain smoker may light a cigarette without noticing
Here he dont notice that we notice ourselves , we are aware of
everything but ourselves
Law treats habitual acts as falling on the voluntary side of the
continuum
Hypnotism: not usually seen as voluntary
Right on the line
See People v. Netwon:
After stopping car and trying to arrest D, gun fight. D was
unconscious or semi-conscious even later at hospital
Convicted of voluntary manslaughter, no unconsciousness
instructions
Unconsciousness is complete defense.
o Reasonable jury could have inferred D was unconscious
Unconscious: still aware, able to grab gun and shoot, shock reflexes,
etc.
See Cogdon, p. 212 (somnambulism)
Axed daughter while asleep to protect from Korean war
Rule: acts committed while sleepwalking are involuntary
Time- Framing
The P does not have to show that every act was voluntary (or even the last
act), it only needs to show that the defendant;s conduct include a voluntary
act
Brings the question of how long back do you have to go to find the voluntary
act, because people have obviously committed voluntary acts before
E.g. if you kill someone while sleeping, you committed the voluntary
act of brushing your teeth
In this manner the time-frame can be manipulated by courts by
constructing broad or narrow acts
Rule to avoid broad/narrow: A person is not guilty of an offense unless her
conduct, which include a voluntary act, and which must be accompanied by a
culpable state of mind (the mens rea of the offense), is the actual and
proximate cause of the social harm, as proscribed by the offense.
Focuses on the relevant conduct

See People v. Decina, p. 214

o D knew he was epileptic, consciously chose to drive
o Charged with operation of a vehicle resulting in death
o Rule: acts committed during epileptic seizure are involuntary
o Rule: if D knows he suffers from epilepsy, consciously
chooses to disregard potential consequences acted
voluntarily
o Key: how broad or narrow is the time frame?
Crimes of possession
inchoate crimes because they are incomplete there real purpose is to
provide the police with the basis for arresting those whom they suspect will
later commit a socially injurious crime
the voluntary act is knowingly receiving or procuring the property or that he
failed to dispossess himself of the object after he became aware of its
presence
Voluntary Act: MPC
2.01(1): Need a voluntary act or the omission to perform an act of which
he is physically capable
1.13(2): Act- bodily movement whether voluntary or involuntary
does not define voluntary acts, but does enumerate bodily movements that are
involuntary
2.01(2)(d): reflexes, convulsions, conduct during unconsciousness,
sleep, or due to hypnosis, and generally an conduct that is not a
product of the effort of determination of the actor, either conscious or
habitual.
~ 2.01(4): possession is an act if the possessor either knowingly
obtained the object possess or knew she was in control of it for a
sufficient period of time to have been able to terminatepossession
o See Bradshaw: -commercial truck driver crosses Canadian
border into Washington with 77 lbs of marijuana; No
evidence that the trucker was aware that the drugs were
hidden in his truck; Washington Supreme Court upheld
conviction for possession of illegal drugs rejecting argument
that awareness is inherent in concept of possessing an item
o States differ
o Omission or act? section
Exception
2.05(1): The act requirement does NOT apply to violations
(offenses for which the maximum penalty is a fine or civil penalty.
E.g. if you fall asleep while driving and run a stop sign, it does not
matter
Concedes that the fairness in this is lacking, but they determined that
litigating the involuntary-act claims would undermine effective law
enforcement

Omissions
o Subject to a few limited exceptions, a person has no criminal law duty to act to prevent harm
to another even if he can do so at no risk to himself, and even if the person imperiled may lose
her life in the absence of assistance

Criminal law distinguishes between an act that affirmatively causes harm, and the
failure of a bystander to take measures to prevent harm.
Criticisms: morally repugnant, lacks social cohesion
Rationale: problem with drawing the line how many people should be convicted
(would allow the police a lot of discursion.
Problems proving mens rea cant infer peoples intent very easily. How do
you know someone who heard screams thought it was something else
Problem with causation cant determine if not calling for help actually
caused the death. At that rate everyone would be guilty for not helping. E.g.
not giving money to a homeless man
Read more about causation requirements
People often misconstrue what they see e.g. might ruin an undercover
operation
Exception to the No-liability rule
Common Law Duty to Act: Commission by Omission (When there is a duty to act)
Status relationship
Usually founded on the dependence of one party on the other, or on
their interdependence
E.g. parents to their monr children; married couple to one another;
and masters to their servants
o See Jones v. United States:
o Rule: One of the elements of an omission crime a jury
must find to have existed in order to find the defendant
guilty is that there was a legal duty of care owed the
victim by the defendant.
o Rule restated: Even if you satisfy all elements of crime,
but if you satisfy them by virtue of an omission, then you
are not guilty unless there is a duty to act required by a
statute
o Facts: 10-month-old Anthony Lee Green, was placed with the
defendant. The defendant was a family friend of the babys
mother, Shirley Green. Shirley Green lives with the
defendant for an uncertain amount of time. It is unclear
whether Jones was paid for taking care of the baby. Jones
claims that Shirley Green was living with him. Shirley Green
claims that she was paying Jones to take care of child. The
medical evidence was uncontested and the defendant
had ample means to provide food and medical care for the
baby.
Not a duty here with someone who supposedly
stayed at the house
o See Beardsley: no duty when Ds lover took morphine and
overdosed in front of him
o See Commonwealth v. Carwell: mother convicted of child
abuse because stepfather abused daughter
Rule: person with duty of care must take steps that
are reasonable calculated to achieve success
Contractual obligation
E.g. Someone paid to nurse someone and fails to do so
babysitter
Omission following an act

Creation of a risk
o A person who wrongfully harms another or anothers
property, or who wrongfully places a person or her property
in jeopardy or harm, has a common law duty to aid the
injured or endangered party.
o E.g. D negligently injures V, D has a common law duty to
render aid to V. If D fails to do so, and V dies as a result of
the omission, D may be held criminally liable for Ds death,
even if she is not guilty of any offense regarding the initial
injuries
o ~Duty to act could arise from accidental conduct (accidently
starting a fire may created a duty to help)
Voluntary assistance (undertaking)
o One who voluntarily commences assistance to another in
jeopardy has a duty to continue aid, at least if a subsequent
omission would put the victim in a worse position than if the
actor had not initiated help. Applies even if the omitter had
no initial responsibility to rescue the victim
o (undertaking) e.g. taking in a sick person and then not
giving the needed care
Statutory duty (Bad Samaritan laws)
E.g. when you see an accident you have to stop at the scene
These statues make it an offense, usually a misdemeanor, for a person
not to come to the aid of a stranger in peril under specific
circumstances.
o E.g. vermot Stateu: offense for a bystander to fail to give
reasonable assistance to another person who she knowis
exposed to grave physical harm, if such aid can be rendered
without danger or peril to the bystander, unless that
assistance or care is being provided by others
Hard to enforce
Punishments are very small
Omission: MPC
Does not differ greatly from the Common Law
2.01(1): A person is not guilty of any offense unless his conduct includes a
voluntary act or the omission to perform an act of which he is physically capable
2.01(3)(b): liability for the commission of an offense may not be based on an
omission unaccompanied by action unless:
(1) Statue: if the law defining the offense proves for it OR
e.g. MPC 220.1(3) failure to report a dangerous fire
(2) Other sources: the duty to act is otherwise imposed by law
include duties arising under civil law (torts or contracts)
~See Pope v. State: Rule: The common law rule of the United States does
not impose a duty to take affirmative action upon bystanders in
emergency situations if they are not responsible for the situation

Facts: Defendant Ms. Joyce L. Pope took Melissa Norris and her 3 month old
infant into her house one Friday after church services. Norris was suffering
from mental illness and would go through violent religious frenzy. On
Sunday afternoon, Norris went into frenzy, claimed she was God, and asserted
that Satan had invaded her child. In Popes presence, Norris beat her child
causing serious injury. Pope did nothing to protect the child, nor did she call
the authorities. Pope went to church later with Melissa. Both returned to
Popes home and spent the night. At some point the baby died of the beating.

Act or Omission?
o Medical Omission
Patent (P) is in an irreversible coma, kept alive by use of a respirator. D, Ps doctor,
concludes that future medical treatment would be useless, so she turns off the
respirator, aware that the effect will be to cause Ps imminent death, which occurs
Complicated because it seems turning over the respirator was an act.
The voluntary act of turning off the machicine is merely the means of
omitting future medical care.
Contractual duty issue: doctor to patient: the doctor owes a duty to provide
ordinary, but not extradonirdinary, care to her patient
See Barber v. Superior Court: same situation. Court asked whether the
proposed treatment was proportionatein terms of the benefit gained
vs. the burdens caused
Rule: When the patient has no meaningful chance of medical
improvement, a physician no longer owes a duty to provide further
medical care
Rule: each drop of fluid introduced into the patients body by
intravenous feeding was comparable to a manually administered
injection or item of medication. Therefore disconnecting the
machines was an omission.
Social Harm
o Is an aspect of actus reus
o Reminds us that to be guilty of an offense, a person must do more than think bad thoughts; he
must be guilty of wrongdoing
o Voluntary acts is the doing and social harm is the wrong
o Where are the harms in attempts or reckless behavior that doesnt amount to anything?
Must broadly define social harm
o Definition: Society is wronged when an actor invades any socially recognized interest and
diminishes its value. Specifically, social harm may be defined as the negation,
endangering, or destruction of an individual, group or state interest which was deemed
socially valuable.
Thus, the drunk driver and the attempted murdered of the sleep person have
endangered the interests of others, and have cause social harm under this definition.
o Finding the social harm element in a criminal statue
the killing of a human being by another human being with malice aforethought
voluntary/omission part of the actus reus is implicit in the definition
The rest of the red makes up the social harm of the actus reus
Tells us what society does not want to occur
The killing is a result of conduct that incluces a voluntary act or an
omission (when there is duty to act)

mens rea
Social harm of an offense (common law or statue) may consist of wrongful conduct,
wrongful results, or both.

Moreover, the offense will always contain attendant circumstances

(circumstances) elemts.
Need to be able to distinguish between conduct, result, and attendant
circumstance elements in the definition of a crime
Conduct Elements (or conduct crimes)
some crimes are defined, at least in part, in terms of harmful conduct.
Harmful results are not required.
E.g. intentionally driving under the influence of alcohol.
The words in bold describe the actus reus of the offense.
More specifically, they state the social harm of the crime the wrongful
conduct of driving a car in an intoxicated condition (which conduct implicitly
must include a voluntary act)
Conduct crime because no harmful result is required to be guilty of the
offense the offense is complete whether or not anyone or any property is
tangible injured because of the intoxicated driving.
It is enough that socially valuable interests have been endangered
Result Elements (Result Crimes)
Common law murder is a result crime because the social harm of the offense involves
the death of another human being
Although the killing of another the result obviously occurs because of
some conduct, the nature of the actors conduct defintionally is irrelevant.
It does not matter how the result occurs (poison v. gun v. strangling),
just that it does
Result and conduct Crime
First degree murder defined as the killing of another human being by means of a
destructive device or explosive,poison.or torture.
The actus reus here includes a result (anothers persons death) brought by a certain
type of conduct
Attendant Circumstances
In order for any offense to occur, certain facts or conditions attendant
circumstances must be present when the actor performs the prohibited conduct
and/or causes the prohibited result that constitutes the social harm of the offense
FOUND IN THE DEFINTION OF THE CRIME
The social harm of the offense, definitionally speaking, has not occurred unless the
specified attendant circumstances are present
E.g. Common law burglary: breaking and entering of the dweliing house of
another at nighttime.
In order to be guilty of THIS offense, the actor MUST break and enter
into a swelling house (not a commercial structure, etc.)
The dwelling MUST belong to someone other than the actor

The events MUST occur at night

If the attendant circumstances are not there, the specific crime in question has
not met actus reus
May be guilty for another crime like trespass

Mens Rea (Mental culpability)

Generally has three meanings
o Generalized Mens Rea) a general immorality of motive, vicious will, or an evil-meaning
minds, willful, malicious
With this definition, gilt for an offense is not dependent on proof that the actor caused
the proscribed harm with any specific mental state, i.e., it is not necessary to show that
the committed the offense intentionally, knowingly, out with any other particular
frame of mind.
See Regina v. Cunningham: D enters cellar of an apt. and wrenches gas meter
from the gas pipes and steals it. Although could have turned the gas off, he
does not and gas seeps into wall of the cellar and harms 3 rd party. Although D
did not intend to endanger anyones life he was charged with the offense
Criminal statute required that D maliciously administer or cause to be
administered poison and trial judge told jury that malice meant wicked
Appellate court overturned and said that malice meant that the D knew of the
risk and disregarded it (modern day recklessness)
Since D caused the harm, albeit unintentionally, while attempting to steal
money from the meter, the jury found the requisite wickedness (appeals court
allowed Ds appeal on the grounds that the mens reas instruction was
erroneous)
Common law definitions of many offenses failed to specify any mens rea.
o Common Law (elemental)
Mens rea must relate to each element of the crime for which D is charged
Different levels or degrees of mens rea culpability
Usually specified in the crime: e.g. the intentional killing
IF unspecified: reckless is the default or minimum
Regina v. Faulkner, p. 245
tried to steal rum from ships hold, lit match to see, fire destroyed ship
Had no mens rea with respect to lighting the fire
Rule: mens rea must be with respect to the specific crime in question
Intentional, willful or reckless (knew it would be probable result)
Purpose of criminal code is to distinguish severity of the crime by
determining degree of culpability undermined by generalized mens rea
Common Law Mens Rea Terms

Intentionally or Intent (LINK RULES BETTER)

(1) Purpose- If it is his desire (conscious object) to cause the social harm (social harm
refers to the circumstances of the crime)
(2) knowledge- If he acts with knowledge that the social harm is virtually certain to
occur as a result of his conduct
Lesser use: the intent to cause a particular result (e.g. kill another) or to engage in
specified conduct (e.g. drive a car) id defined narrowly in a statue to mean that it was
the actors purpose, desire, or conscious objective to cause the result or to engage in
the specified conduct
HYPO: bomb expert D want to kill V, his wife, in order to obtain the proceeds from
her life insurance policy. D constructs a bomb and places it on an airplane on which V
is a passenger. He sets the bomb to explode. He prays for the others on the plane to
survive but he knows that the bomb will destroy the airplane
It was his conscious purpose to kill his wife (wanted her to die). IT DOES
NOT MATTER HOW LIKELY IT WAS THAT THE RESULT WOULD
OCCUR, desire is enough
For the other vicitims, he did not want them to die, he even prayed that they
wouldnt, but he did intend their deaths as well
He knew that the social harm of their deaths was virtually certain to
occur when this bomb exploded.
NOT SATISIFED if the outcome was merely highly probable; the
actor must realize that, short of divine intervention or a secular
miracle, the desired event will occur for sure
Both Subjective fault
An actors fault is subjective if he possesses a wrongful state of mind
In this case the conscious desire to cause the social harm, or the
awareness that the harm will almost certainty result from his conduct
Significance: HYPO- D belongs to a religious sect that espoused the
belief that members of the faith always have their wishes fulfilled by
God. Therefore, as a member of the sect, D genuinely believed that
his fervent prrayers would save everyone on the airplane except his
wife.
Based on these revised facts, D (as before) intentionally killed his
wife, because he desired her death
But, if the jury believes his testimony about religious beliefs, D did
not intentionally kill the other passengers he was not subjectively
aware that their deaths were a near certainty.
Intent requires such awareness; it is insufficient that he should
have been aware , as a reasonable person, that they would be killed
Specific Intent: Distinguishing Motive By definition these crimes require proof of a specific motive.
E.g. with intent to steal
You cant be guilty of this crime if you borrowed something without
asking with the intent (motive) to give it back
~Proving awareness and intent
Circumstantial evidence
Mandatory presumption
Permissive presumption

Presumed to intend the natural and probable consequences of

your actt
~Transferred Intent (WRONG DOCTRINE)
HYPO: firing a gun intending to strike A and striking B instead
Yes intent we attribute liability to a D who, intending to kill (or injure)
one person, accidentally kills (or injures) another person instead.
Rationale: a bad aimer should not avoid conviction simply because he killed
the wrong person
Keep in mind
Punishment should be equal to culpability
Problem: some crimes do indeed specify that the actual person needs to be the
target
Problem: If D shoots at a dog bur misses and hits a human.
Should not transfer the intent to kill a dog to intent to kill a human
Basic layout of transferred intent
(1) A intends to cause a specific harm to one just one specific
individual, B
(2) B escapes unscathed; and
(3) an unintended victim, C, suffers the harm for B
RIGHT WAY TO THINK ABOUT IT
The mens rea does not follow the bullet like transferred intent
suggests
o When firing the gun, D has intent to kill a human being (who
ever it was)
o Therefore the mens rea is satisfied
It would also be wrong to use transferred intent to a second victim
that is injured
o HYPO: A, intending to kill B, who is holding baby C in her
arms, fires a single bullet at B, he knows that he will
concurrently kill C who is in the line of fire.
o Therefore, on these facts A has intent purpose or
knowledge, either of which constitutes common law intent
to kill BOTH people (B purposely, C knowingly
Knowingly or With Knowledge with respect to Attendant circumstances
HYPO: statue: :it is a federal crime for a person knowingly to import any controlled
substance into the country
Under this statue a person, D, who drives an automobile containing marijuana
into the U.S., is not guilty unless he knows of the presence of the contraband
attendant circumstance when he crosses the boarder
o

someone knows of a fact when

is aware of the fact (actual knowledge)
e.g. put the marijuana there
correctly believes that the fact exists (correct belief)
e.g. smells the marijuana and correctly believes it is present
Willful blindness
(1) Aware of a high probability of the existence of the fact in question
(2a) takes deliberate action to avoid confirmation of the fact
(affirmative step); or
(2b) purposely fails to investigate in order to avoid confirmation of
the facts
See U.S. v. Jewell: D is guilty of willful blindness where he agreed
to drive Xs car into the country although he was highly suspious that
drugs had been concealed in it, and he purposely avoided looking in
the truck or elsewhere because he was afraid that it would confirm his
suspicions
Dissent Rule:
o Awareness that there is a high probability that a fact exists
o Take deliberate steps to avoid knowledge
o Unless D actually believe the circumstances is not present
~~See Global-Tech v. SEB, p. 262
Knowing patent infringement (federal)
Willful blindness: subjectively believe high probability a fact exists
o Take deliberate actions to avoid learning of that fact
Posner: p. 253, active blindness not just passive blindness (burry
head)
MPC: 2.02(7)
Excludes willful blindness
o E.g. throw air condition out of window
Key: no culpability in cases of low probability
o E.g. 3 suitcases, only 1 of them actually has drugs

Willfully
an act done with a bad purpose or with an evil motive
may also connote an intentional violation of a known legal duty
or a purpose to disobey the law
often use context to determine
in most circumstances, an intentional wrongdoer acts with a bad purpose or evil
motive, and with knowledge that he is violating the law, so it does not matter which
meaning of willful is applied
merges into mistake of law: because if you think the law is one think, you are not
willfully disobeying it (purpose to disobey the law)
See Mistake of Law
Negligence and Recklessness
Risk-taking
(1) desirable or at least neutral risk-taking
(2) risk-taking that justifies civil liability (civil liability)
(3) risk-taking that crosses the civil line and justifies criminal liability
(criminal negligence) and
(4) even more culpable risk-taking (recklessness)
some courts have sometimes used the terms negligence and recklessness
interchangeably, particularly before the advent of the MPC
CASE
Negligence -- OBJECTIVE
A persons conduct is negligent if it constitutes a deviation from the
standard of care that a reasonable person would have observed in the actors
situation
Conduct is negligent if the actor fails to appreciate he is taking an
unjustifiable risk of causing harm to another.
Objective: An actor is not blamed for a wrongful state of mind, but instead is
punished for his morally blameworthy failure to realize that he is taking an
unjustified risk for his failure, in other words, to live up to the standards of
the fictional reasonable person
Reasonable person: Learned Hand Factors
(1) gravity of harm that foreseeability would result from the Ds
conduct
(2) the probability of such harm occurring; and
(3) the burden or loss- to the D of desisting from the risky conduct,
which is simply another way of evaluating the reason for taking the
risk

Civil v. Criminal
civil negligence ordinarily is considered an inappropriate predicate by which
to define criminal conduct
See Santillanes v. State:
criminal responsibility usually needs criminal negligence
Criminal negligence is conduct that represents a gross deviation from the
standard of reasonable care
See State v. Hazelwood
A person is criminally negligent if he takes a substantial and unjustifiable risk
of causing the social harm that constitutes the offense charged
Recklessness SHOULD NOT be equated with criminal negligence
Punishing Negligence
Opponents: cant punish people for what is not on their mind
Does not act as deterrence
Proponents: at least sometimes, blame is justified on the ground that the
negligent actors failure to perceive the riskiness of his conduct constitutes
culpable indifference to the rights and interests of those around him
If you can be punished for failing to act, you an be punished for
failing to think
Reasonable person -- OBJECTIVE
although it is an objective standard the Ds conduct is compared to an
external ideal
As a result, there are constant pressures on courts to subjectiize the
reasonable person -- to incorporate into the reasonable person some of the
mental and/or physical characteristics of the defendant, or by incorporating
into the reasonable person the Ds personal life experience
E.g. if the defendant is of low IQ, he may seek to be judged by the
standard of a reasonable person with a similar level of intelligence
E.g. father fails to get traditional medical care because he is part of a
religion who believes that medicine is unnecessary or violative of
Gods word. He may seek a reasonable person of his religion
o [Case]
Traditional Rule: (which Is changing) is that although a defendants unusual
physical characteristics (e.g. blindness), if relevant to the case, are
incorporated into the reasonable person standard, a defendants unusual
mental characteristics are not
Recklessness -- SUBJECTIVE
In the past recklessness has been a synonym for criminal negligence,
however, today it is distinct and more culpable than criminal negligence
Tort concept (not really used anymore): if he takes a very substantial and
unjustifiable risk.
Puts recklessness on a continuum with criminal negligence

Criminal Recklessness: requires proof that the actor disregarded a substantial

and unjustifiable risk of which he was aware
Differs from criminal negligence in that here the negligence is
founded on the actors state of mind whether he knew of the risk
and yet consciously disregarded it
Criminal negligence involves inadvertent risk-taking (should have
been aware)
o Malice (NON-HOMCIDE MEANING)
critical Common Law and statutory mens rea term
See Murder (for further relevant meanings of malice)
Here malice refers to intentionally or recklessly cause the social harm prohibited by
the offense
See Regina v. Cunningham (appellate court set out that if D did not have
awareness of the risk even if he should have been aware of the risk then he
acted criminally negligent, which would fall outside the definition of malice
Statutory Interpretation: What elements does a Mens Rea Term Modify:
o United States v. X-Citement Video
The Supreme Court was called upon to interpret a federal statue that makes it a felony
to knowingly transport, receive, or distribute in interstate or foreign commerce any
visual depiction involving the use of a minor engaging in sexually explicit conduct
The D did not deny that he knowingly transported and distributed non-obscene
sexually explicit materials in interstate commerce
He claimed, however that he believed the person depicted in the video was an adult,
i.e. he did not know that she was a minor
Issue: Whether such knowledge was required under the statue.
A fairly straightforward reading of the statue suggest that the term
knowingly modifies the conduct or result elements (transport, receive, or
distribute) of the offense
BUT, does knowingly also modify the critical statutory attendant
circumstance that the person depicted in the video was underage?
When there is no clear cut answer to statutory interpretation, the court
will look at legislative intent
Also looks at the grammatical flow of the statue
A person is guilty of a felony if he [does X] with the intent of
[causing Y and Z]. Here, the term intent probably modifies Y and
Z, but not X
mens rea terms usually doesnt go backwards
BUT in X-Citement the court held that knowingly did apply to whether the
girl was a minor
Court did not want to choose grammar over basic assumptions of
criminal law
Basic Assumption: presumption in favor of a scienter [mens rea]
requirement should apply to EACH of the statutory elements that
criminalize OTHERWISE INNOCENT conduct
since selling distributing sexually explicit videos of adults was
lawful, the government has to prove that the D knew the girl was a
minor

Otherwise innocent conduct needs to be shown that it is

guilty

Specific Intent and General Intent

o Essential to understanding various common law rules of criminal responsibility (mistake of
law, mistake of fact)
o Very complicated
o General Intent: historically: referred to any offense for which the only mens rea required
was a blameworthy state of mind
o Specific Intent: historically: was meant to emphasize that the definition of the offense
expressly required proof of a particular mental state
in other words, an offense that only required proof of mens rea in the culpability
sense of the term was a general intent crime
Offenses that required mens rea in the elemental sense were specific intent in
nature
Rationale: back in the day most common law crimes didnt include mens rea so those
that did require a particular state of mind (murder- malice aforethought, burglaryintent to commit a felony) stood out and were thus called specific intent
Today: Mens rea is implied so the line between general and specific intent is much
more difficult to draw.
o Sometimes specific intent is referred to as: if the crime requires proof that the actors
conscious object, or purpose, is to cause the social harm set out in the definition of the offense
In contrast general intent refers to if the actor can be convicted upon proof of any
lesser state of mind, such as when he causes the harm knowingly, recklessly, or
negligently (See Regina v. Cunningham)
o Specific Intent
Offense in which the definition of the crime expressly:
(1) includes an intent or purpose to do some future act, or to achieve some
further consequence (i.e. special motive for conduct), beyond the conduct or
result that constitutes the actus reus of the offense OR
e.g. burglary is a specific-intent crime because committed the actus
reus alone does not satisfy the crime
(2) provides that the actor must be aware of a statutory attendant
circumstance. An offense that does not contain one of these features is termed
general intent
X-Citement video?
E.g. general intent: battery- intentional application of unlawful force upon
another. - the definition does not contain any specific intent. The only
mental state required is intent to apply unlawful force upon another (the
actus reus of the crime)
MPC Mens Rea
o Strictly elemental approach to the concept
o 2.02(1): Provides that, except in the case of offense characterized as violations (civil
penalty/fine) a person may not be convicted of an offense unless he acted purposely,
knowingly, recklessly, or negligently, as the law may require, with respect to each material
element of the offense
the code requires the prosecution to prove that the defendant committed the social
harm of the offense indeed, each material ingredient of the offense with a culpable
state of mind, as set out in the SPECIFIC statute
The crime MAY require different levels of culpability for reach material element.

E.g. It is a felony to purposely do X and knowingly do Y, so as to recklessly

cause Z
As a result, a person may not be convicted solely on the ground that he acted with a
morally blameworthy state of mind, i.e., the Code eschews the culpability meaning
of mens rea.
The common law distinction between general intent and specific intent is
discarded
The MPC removes the clutter of common law and statutory mens rea terms, and
replaces them with just four: purposely; knowingly; recklessly; and
negligently
The phrase material element of the offense, as used in 2.02 and throughout the
Code, includes elements relating to the existence of a justification or excuse for the
actors conduct, i.e. defenses to crimes. Since one off the four states of mind applies to
EVERY material element of a crime, this section is also relevant in determining
whether a person is entitled to acquittal on the grounds of an affirmative offense
Culpability Terms
Purposely -- SUBJECTIVE
With respect to Results or Conduct
2.02(2)(a)(1): A person acts purposely if it his conscious object
to engage in conduct of that nature or to cause such result it is the
actors goal/objective
o Aside: essentially applies transferred intent: (NOT READ)
2.03(2)(a): when purposely causing particular result is an
element of an offense, that element is established if the
actual result differs from that designed or contemplated,
only in respect that a different person or different property is
harmed
o Also, the Code provides that a defendant is not relieved of
liability for an offense if less harm occurs that it was the
actors conscious object to cause. E.g. if Ds conscious object
is to kill two persons, but he only succeeds in killing one,
purpose is established
o But, if D intends to kill X an instead kills X and Y, Ds
purpose to kill X would not apply as to y, because he has
caused more, not less, harm than was designed. Ds liability,
if any for Ys death would have to be based on a different
state of mind directly related to Y, perhaps on the ground that
firing a gun at X in Ys proximity constitutes a recklessness
as to Ys safety. (MAYBE USEFUL LATER)
Purposely is a mental state comparable to the first only the first
of the two alternative common law definitions of the word
intentional (not knowingly)
o e.g. the bombing his wife and praying for others example
(CL: purpose to kill wife=intent, knowing to kill
passengers=intent, MPC: purpose to kill wife, no purpose to
kill passengers)
o (NOT READ) Purposely with respect to conditional results:
e.g. D threatens to kill V, the driver of an automobile, unless
V relinquishes the care to D.

 2.02(6): when a particular purpose is an element of

n offense, the element is established although the
purpose is conditional, unless the condition negatives
the harm or eveil sought to be prevented by the law
defing the offense? See. Dressler pg. 141 fn.132
With Respect to Attendant Circumstances
2.02(2)(a)(ii): A person acts purposely with respect to attendant
circumstances if he is aware of the existence of such circumstances
or he believes or hopes that they exist. aware or hopes
E.g. if D enters an occupied structure in order to commit a felony
inside, he has acted purposely regarding the attendant circumstance
that the structure was occupied if he was aware it was occupied or
hoped it would be
Knowingly -- SUBJECTIVE
With respect to Results
2.02(2)(b)(ii): A result is knowingly caused if the actor is aware
that it is practically certain that his conduct will cause such result
o e.g. airplane hypo: D knowingly killed Vs fellow passengers,
assuming D was aware that his bomb that his bomb would
almost certainty kill those on board.
o IF D lacked normal mental faculties, or for any other reason
had a distorted sense of reality, so that he was not subjectively
aware that their deaths were practically certain to result, then
a finding of knowledge would not be appropriate
With respect to Attendant Circumstances and Conduct
2.02(2)(b)(i): One acts knowingly if he is aware that his conduct
is of that nature or that such [attendant] circumstances exist
o e.g. D fires a loaded gun in Vs direction, and was prosecuted
for knowingly endangering the life of another. D is guilty if
he was aware that his conduct endangered the life of another
person. If he was not aware that his conduct endangered the
life of another person. If he was not aware (perhaps because
he did not see anyone in the vicinity), then D did not
endanger another knowingly, no matter how obvious Vs
presence may have been to others.
o E.g. If D purchased stolen property and was prosecuted for
knowingly receiving stolen property., D would be guilty of
the offense if, when he received the property, he was aware
that it had been stolen.
2.07(7): Willful Blindness: In order to deal with the problem of
willful blindness, the Code includes a controversial provision that
states that knowledge it established, if a person is aware of a high
probability of.[the attendant circumstances] existence, unless he
actually believes that it does not exist
o same criticism as common law willful blindness doctrine
o [case]
Recklessly and Negligently
2.02(2)(c): Recklessly: a person acts recklessly if he consciously disregards a
substantial and unjustified risk that the material element exists or will result from his
conduct. (HYBRID)

A risk is substantial and unjustifiable if considering the nature and purpose

of the actors conduct and the circumstances known to him, its disregard
involves a gross deviation from the standard of conduct that a law-abiding
person would observe in the actors situation.
2.02(d): Negligent: A persons conduct is negligent if the actor should be
aware of a substantial and unjustifiable risk that the material element exists or will
result from his conduct. (OBJECTIVE)
Same definition of substantial and unjustifiable EXCEPT the term
reasonable person is substituted for law-abiding person
A risk is substantial and unjustifiable if considering the nature and purpose
of the actors conduct and the circumstances known to him, its disregard
involves a gross deviation from the standard of conduct that a reasonable
person would observe in the actors situation.
Difference
Both require the same degree of risk taking: substantial and unjustifiable.
BUT the reckless actor consciously disregards the risk, whereas the
negligent actors risk-taking is inadvertent
This tracks the modern common law approach (MPC influenced modern
courts)
Why law-abiding v. reasonable person???
Reasonable Person
The conduct of the reasonable person (and law-aiding) is evaluated from
the perspective of a person in the actors situation.
*Ambiguous ask professor
Commentary indicates that physical characteristics (e.g. blindness or
the fact that he just suffered a heart attack), would certainly be facts
to be considered in judgment involving criminal liability,
But hereditary factors and matters of intelligence and temperament
would not be held materialand could not be without depriving the
criterion of all its objectivity.
The drafters of the Cod did not intend to displace discrimination of
this kind, but rather to leave the issue to the courts.
o [case?] need clarification
Principles of statutory interpretation
Clarifies the X-Citement video problem
2.02(4): If a statute defining an offense prescribes the kind of culpability that is
sufficient for the commission of the offense, without distinguishing among the
material elements thereof, a could will interpret such culpability provision as
applying to every material element of the offense, unless a contrary purpose plainly
appears.
A single mens rea term whatever it is modifies each actus reus element of the
offense, absent a plainly contrary purpose of the legislature
E.g. Burglary: enter an occupied structure with purpose to commit a crime
therein
Since the mens rea term purpose is put in the middle it is not meant to apply
to the attendant circumstance of the structure being occupied
Since there MUST be some form of culpability for each material element of
an offense, if it the mens rea isnt specified it automatically is purposely,
knowingly, or recklessly

2.02(3): When the definition of a criminal offense is silent regarding a matter of

culpability as to a material element of the offense (as the above burglary offense) The
material element is satisfied if a person acts purposely, knowingly, or recklessly.
E.g. burglary enter an occupied structure with purpose to commit a crime
therein
Recklessly, knowingly, purposely: CONDUCT of entering
Recklessly, knowingly, purposely: ATTENDANT CIRCUMSTANCE
that entry if of an occupied structure
Purposely: to commit a crime therein
He could not be convicted of burglary if was only negligent in
believing that the structure was unoccupied

Mens Rea Nuances

Strict Liability Offenses
o Strict liability offenses: or crimes that, by definition, do not contain a mens rea requirement
regarding one or more of elements of the actus reus
o SCOTUS: The contention that an injury can amount to a crime only when inflicted by [mens
rea] is no provincial or transient notion. It is universal and persistent in mature systems of
law.
o Court has set out situations in which mens rea is not necessary
See Morrissette v. U.S.
o 1. Public Welfare Offenses malum prohibtum v. mallum in se
Malum in se crimes (inherently wrongful) such as murder, arson, rape, and robbery
were the original crimes only ones. (traditional crimes)
Conviction for such offenses, which required proof of mens rea, was gravely
stigmatized, and the penalties for the violations were severe (usually death)
As society grew legislatures made crimes to control conduct that, although not
morally wrongfull, could affect the health, safety, and welfare of the public.
Consequently, Congress enacted laws, most of which mad no mens rea, that came
characterized as public welfare offenses
In contrast to the traditional crimes, these involve conduct malum prohibitum (wrong
because it is prohibited).
E.g. sale of impure food or drugs, anti-pollution laws, traffic and motor
regulations
These are allowed to be strict liability
o 2. Non-Public-Welfare Offenses (usually sexual or drug related)
Statutory rape i.e. consensual intercourse by a male with an underage female
This offense is characterized in most states as strict liability because the statue does
not require, and most courts have refuses to imply, any mens rea element regarding
the defendants knowledge of the females underage statue
See Garnett v. State (SL)
Md.1993 (authorizing conviction of a 20-year-old male with an I.Q.
of 52, who had consensual intercourse with an underage female;
holding that the males mistake regarding te girls age was immaterial
Absence of mens rea for the ATTENDENT CIRCUMSTANCE of age
classified statutory rape because the sex itself is intentional (and
consensual)
Controversy:
Whereas public welfare crimes usually carry only minor penalties, non- public
welfare strict-liability offenses result in severe punishment

Non-public welfare offenses typically involve conduct malum in se. Violators

of such laws, therefore are stigmatized despite the absences of proven moral
fault
Arguments for strict liability: (1) the absence of mens rea requirement may have the desirable
effect of keeping people who doubt their capacity to act safely form participating in dangerous
activities, such as manufacturing pharmaceutical drugs or using dangerous instrumentalities
(2) Those who engage in risky activity will act will greater caution in light of the strict liability
nature of the law (3) an inquiry into the actors mens rea would exhaust courts, which have to
deal with thousands of minor infractions every day
Alternative to Strict Liability: continue to define public welfare offenses in strict liability
terms, but permit a lack of mens rea affirmative defense
E.g. if a person sold liquor to a minor, she would be convicted unless she showed
strong evidence that she took reasonable care to determine customers age
See Regina v. City of Sault Ste. Marie (Canada): Compelling grounds for
three categories of offenses:
Mens rea, consisting of some positive state of mind such as intent,
knowledge, or recklessness, must be proved by the prosecution
No necessity for the prosecution to prove mens rea; doing the
prohibited act prima facie imports the offense, leaving it open to the
accused to prove he took all reasonable care
Absolute liability where it is not open to the accused to exculpate
himself by showing that he was free of fault
Constitutionality of Strict Liability
See U.S. v. Balint (SL staute)
(D was indicted for the sale of narcotics (opium and cocoa) without a required
form from the government. Did not allege D knew he sold prohibited drugs.
The maximum penalty for the strict-liability public welfare offense was 5
years imprisonment.
Rule: No scienter [mens rea] requirement under a statue if the purpose of the
statue would be obstructed by such a requirement
Congress decided protecting innocent purchasers was more important
thus the crime should be strict liability
o Seller better able to know, difficult to prove knowledge
helps protect consumers
See U.S. v. Dotterwiech: (SL statue)
D convicted of mislabeling products even though no evidence of mens rea b/c
the statute did not require mens rea; similar language regarding the weighing
of the costs and benefits of applying strict liability
Not a traditional crime
Protect consumers
Compare U.S. v. Morissette (No SL)
D was convicted of conversion of government property that he believed had
been abandoned. The statue did not expressly require proof of an intent to
steal property. However, because the statue evolved from the common law
offense of larceny, which contains such a requirement, the Supreme Court
construed the conversion statue as requiring specific intent
If a crime normally required intent under the common law, but as
codified does not expressly include that requirement, a criminal D
cannot be proven guilty w/o proving intent.
Since this was more of a traditional crime, it retains the requirement
of intent (mens rea)

Mens rea may be presumed in the absence of legislative intent

Morissette Indciia: Publib Welfare crime when:
o 1. Recently created crimes to protect public welfare (mallum
prohibitum)
o 2. Low punishment/penalty
o 3. Low stigma
o 4. Usually able to prevent with reasonable care
See Staples v. US, p. 288 (No SL)
D convicted under National Firearms Act for possessing an unregistered
firearm defined by the act. The gun was capable of firing automatically due
to a metal part which usually prevents the weapon from firing automatically
being finled down. D said he didnt know that the weapon fired automatically
and that the weapon had never fired automatically when he used it. Statute is
silent regarding mens reas for the violation. D convicted over his request that
the jury be instructed that he must know that the gun would fire automatically
Tradition of gun ownership, no mens rea criminalize a lot of behavior
Guns are part of society do not put on notice (like grenade)
Rule: absent clear intent from Congress, presumption of mens rea
requirement in any statute defining a felony offense
Morissette indicia? (SL, no SL, no SL, SL)
See Guminga
See Lambert v. California: the Court overturned D;s conviction for failing to register
with the city of Los Angeles as a prior convicted felon, as required pursuant to a strictliability ordinance of which D was unaware. Notwithstanding the usual rule that
ignorance of the law is no excuse, the Court reversed the conviction on lack of fair
notice due process grounds.
See Ignorance of Law

MPC Approach to Strict Liability

2.02(1): provides that, subject to one exception, no conviction may be obtained
unless the prosecution proves some form of culpability regarding each material
element of an offense
Exception: 2.05: provides that the voluntary act and mens rea requirements need not
apply to offenses graded as violations, rather than crimes. Violations are offenses
that cannot result in imprisonment or probation, but may result in fines. (< $500)
MPC is strongly against strict liability
*different outcomes for statutory rape and some drug offenses

Mistakes of Fact
o e.g. D shoots and kills V, believing he is killing a wild animal
o e.g. D carried away property belonging to V, incorrectly thinking that he has permission to
take it
o Each actor was either unaware of, or mistaken about a fact pertaining to an element of the
offense for which he might be prosecuted
o Definitions:
Ignorance implies total want of knowledge
Mistake implies a wrong belief about the matter
o The focus is on mistakes pertaining to ELEMNENTS in the definitions of crimes.
Frequently a defendant will allege that hes was mistaken as to the existence of fact
that would provide affirmative defense to his conduct

o
o
o

Rationale: An actor who is mistaken about some fact does not have the same kind of
opportunity to avoid evil that he would have if he knew what he was doing
Must be done through mens rea because involuntary actus reus has to do with cognition
(what he is aware of) rather than his volition (his capacity to control his conduct)
Context of broad generalized mens rea and narrower normal culpability mens rea (elemental)
Generalized Mens rea: proof that a person was factually mistaken demonstrates that
despite appearances, he acted in a morally blameless manner manner and that,
therefore, he is not deserving of punishment for causing harm. In this sense a mistake
of fact negate mens rea in the culpability meaning of the term. (He did not act
maliciously)
Elemental: Because of a mistake, a defendant may not possess the specific state of
mind required in the definition of the crime. In such, circumstances the defendant
must be acquitted because the prosecutor has failed to prove an express element of the
offense
Common Law Rules
Most common law crimes: Originally the definitions of most common law crimes
omitted any mention of a mental state requirement: a person was guilty if committed
the actus reus under circumstances manifesting his moral culpability.
Specific Intent: A few crimes however, included a specific mental-state element in
their definitions (typically intent or knowledge).
Specific intent crimes developed the rule that a mistake of fact is exculpatory
if it negated the particular element of mens rea the specific intent in the
definition of the offense
Common law adopted an elemental approach to mistakes
General intent crimes that do not include a specific-intent element sought to
determine if the actors mistake negated his moral culpability for the crime
Culpability approach to mistakes
Today this is unnecessary because modern penal codes typically include mens rea in
the definition of all felonies and serous misdemeanors
The Elemental approach should be followed with all non- strict liability crimes today

Strongly influenced by the MPC

BUT to common law still does have the two approached foto mistakes
depending on whether the offense characterized is a general intent or
specific-intent crime
**The first step in analyzing a mistake of-fact claim in a jurisdiction that follows
common law doctrine is it identify the nature of the crime for which the defendant is
being prosecuted: Is it a strict liability, specific-intent, or general-intent crime?
Strict-Liability Offense
Rule: Under no circumstances does a persons mistake of fact negate his criminal
responsibility for violating a strict-liability offense.
The absences of any mens rea to negate necessarily precludes the use of this defense.
E.g. If D drives above the lawful speed limit because his speedometer is
inaccurate, he will be convicted of a strict-liability speeding offense, even if
the speedometers faulty calibration was unknown and unforeseeable to him
Statutory rape is a strict liability offense in most stated regarding the attendant
circumstance of the females age. Thus Ds erroneous belief, no matter how
reasonable, that the female with whom he is having intercourse is old enough
to consent, will not free him
See Garnett v. State (SL)

Md.1993 (authorizing conviction of a 20-year-old male with an I.Q.

of 52, who had consensual intercourse with an underage female;
holding that the males mistake regarding te girls age was immaterial
Absence of mens rea for the ATTENDENT CIRCUMSTANCE of age
classified statutory rape because the sex itself is intentional (and
consensual)

Specific Intent Offenses

Rule: A defendant is not guilty of an offense if his mistake of fact negates the
specific-intent portion of the crime, i.e. if he lacks the intent required in the definition
of the offense
It was not matter that the defendants mistakes may have been unreasonable that the
defendants may have been reckless or negligent in their beliefs.
Acquittal follows from the fact that a person may not be convicted of an
offense unless every element thereof, including the mental-state element (e.g.
the intent to steal) is proven, which cannot occur if the defendant was
genuinely mistaken
On the other hand, if D receives cocaine instead of heroin, and is prosecutes for
knowingly receiving a controlled substance a specific-intent offense (to the actors
awareness of the attendant circumstance of receiving a controlled substance) he is
guilty, notwithstanding the mistake, because his error, whether reasonable or
unreasonable, does not negate the requisite specific intent.
He knew that he was receiving a controlled substance; he was only mistaken regarding
its nature (cocaine v. heroin)
General-Intent Offenses (reasonable test)
Rule: A person is not guilty of a general-intent crime if his mistake was reasonable,
but he is guilty if his mistake was unreasonable
E.g. D has nonconsensual sexual intercourse with V, whom he incorrectly
believes is consent. D is charged with rape, defined for current purposes as
sexual intercourse by a male with a female not his wife, without her
consent.
In as-much rape is a general-intent crime, courts utilize the culpability
approach to analyze Ds mistake of fact.
If his mistake regarding Vs consent was reasonable, then he is not
guilty of the offense.
This follows because, although the actus reus of the offense occurred,
Ds state of mind in regard to the prohibited conduct was
nonculpable, i.e., his belief that she was consenting was on that a
reasonable person might have had.
If Ds belief as to Vs consent was unreasonable, however, than he
acted with a culpable state of mind that justifies his conviction of the
offense.
Problem: if Ds mistake was unreasonable, he is convicted of rape; if he is
arrested before the intercourse occurs, and he is charged with the specificintent offense of assault with intent to commit rape, his unreasonable mistake
of fact will free him (b/c general v. specific intent crimes)
Practical effect: Looking at the reasonableness of the mistake of fact is to
permit punishment on the basis of negligence
See Negligence (above)

Normally someone cannot be guilty unless the negligence is gross.

With mistake of fact, however, unreasonableness is not always
defined in a manner that requires the heightened degree of fault. As a
result, people can be charged responsible for conduct that would
constitute no more than civil negligence
Practical Effect: The mistake-of-fact rule permits conviction and punishment
of a negligent wrongdoer as if he were guilty of intentional wrongdoing.
Even though the person who did it intentionally was much more
culpable than the person with the unreasonable belief, they are
punished the same
Moral-Wrong Doctrine (controversial and increasingly uncommon)
Rule: Once can make a reasonable mistake regarding an attendant circumstance and
yet still demonstrate moral culpability worthy of punishment
Basis: There should be no exculpation for mistake where, if the facts had
been as the actor believed them to be, his conduct would still beimmoral
essentially, the intent to commit an act that is immoral furnishes the requisite
culpability for the related, but unintended, outcome
See Regina v. Prince: D was charged or unlawfully taking or causing to be taken, any
unmarried girl, being under the age of 16 years, out of the possession and against the
will of her father or mother. The girl in question was 14, but the jury found that P
honestly and reasonably believed that she was 18
Bramwell:
* First, apply the reasonableness test, if it is reasonable then move to the
moral-wrong test
Second, what did D think he was doing: Taking an 18-year-old girl out of the
possession and against the will of her parents
Third, evaluate the morality of the conduct, based on the facts the actor
reasonable believed them to be: Here the taking of an 18 year old against her
parents will was self-evidently wrong imputes knowledge to D that he
acting immorally.
Rule: a person who knowingly performs a morally wrong act assumes the risk that the
attendant factual circumstances are not as they reasonable appear to be and that,
therefore, his conduct is not only immoral but also illegal
The doctrine is triggered when the defendants conduct would be immoral had
the situation been as he supposed.
E.g. if the girl was homeless and he was taking her for her
protection that would NOT be a immoral act triggering the doctrine
Problems:
No consensus on moral wrongness
Violates Legality Doctrineconflate immoral and illegal by making certain
acts illegal that the legislature did not make illegal
Ignores degrees of culpability
See Minor v. Director of Public Prosecutions:
Overrules Prince doctrine in England
(15) repeatedly asked 13 yr old girl to perform oral sex. Trial ct.
refused his honest belief she was > 14 as a defense.
Honest belief (subjective) is preferable to reasonable belief
(objective) actual culpability
o But reasonableness relevant for jury
Rule: age related element should be treated as any other element
o Honest mistake of fact is a defense

Prosecution must show absence of genuine belief girl >14

Lesser Crime/Legal Wrong Doctrine
Eg. What if a state provides that sexual intercourse by an adult with a person under the
age of 12 constituted first-degree rape, but it is the lesser offense of second-degree
rape if the victim is older than 12 but under the age of 16
Assume that D reasonably believes that the person with whom he is having
sexual intercourse is 14 years old, but in fact the victim is 11.
Should D be convicted of first or second degree rape?
Rule: If a persons conduct causes the social harm prohibited by More Serious
Offense X, he is guilty of that offense even if, based on his reasonable understanding
of the attendant circumstances, he would be guilty of Less Serious Offense Y if the
situation were as he supposed it to be.
Practical: D is charged with the actus reus of the greater offense while ignoring the
fact that the actors mens rea was that of a lesser crime
Disproportionate punishment to the offenders culpability
Application: (read pg. 162): Moral wrong and lesser crime doctrines continue to be important
in offenses involving minors, sexual behavior, and/or drugs
People v. Olsen (1984)D is convicted of child molestation on a victim who is only
13 years and 10 months old. D claimed that he did not break into the trailer and that
the sex was consensual and girl said she was 16. Court upheld conviction despite a
mistake of age for 4 reasons
Statute makes clear that didnt intend for reasonable mistake to be a defense
Public policy to protect young children
Lesser crime argument---mistake of fact relating to the gravity of an offense
will not shield deliberate defender from full consequences of the wrong
actually committed---assumes that D would guilty of statutory rape even if
girl was over 14 as D believed
Severity of punishment
NOTE: CA, unlike most states, crime of statutory rape allows reasonable mistake of
age as a defense but for more serious offense of child molestation, no mistake of age
defense
MPC Mistake of Fact (Elemental approach)
2.02(1): One is not guilty of an offense unless he acted purposely, knowingly,
recklessly, or negligently, as the law may require, with respect to each material
element of the offense.
There is a mens rea requirement for each element of an offense
2.04(1): Provides that a mistake is a defense, if it negates the mental state required
to establish any element of the offense. It is irrelevant whether the offense would be
identified as general-intent or specific-intent at common law
Either the actor had the culpable state or mind required in the definition of the offense
in question or he did not
Exception: 2.04(2): The code provides that the defense of mistake-of-fact is not
available if the actor would be guilty of another offense, had the circumstances been
as he supposed.
*Unlike common law legal wrong, which maintains the D is guilty of the
higher offense in such circumstances, the Code only permits punishment at
the level of the lesser offense
e.g. from the example in the lesser crime doctrine of first degree rape 12 or
less, second degree rape 14 or less
is the victim is 13, the MPC would convict them for second degree rape based
on Ds state of mind

another e.g.: poaching deer but end up killing a person punished for
poaching

Mistake of Law
o Common Law
Subject to very limited exceptions, ignorance of the law excuses no one
Neither knowledge nor recklessness or negligence as to whether conduct constitutes
an offense, or as to the meaning of an offense, is ordinarily an element of that offense;
therefore it follows that thee is typically no mens rea element of an offense capable of
being negated by an actors ignorance of mistake of the law
Rationales:
Certainty of the Law: the law is easy to know
Avoiding subjectivity in the law
Deterring lying about what the person knew
Encouraging legal knowledge
o Exceptions to the General Strict Common Law Rule
Reasonable reliance (excuse)
Rule NO defense: Reliance on Ones own interpretation of the law: A person
is not excused for committing a crime if she relies on her own erroneous
reading of the law, even if a reasonable person even a reasonable law trained
person would have similarly misunderstood the law
See People v. Marrero NY (a federal corrections officer, was arrested
for poession of a loaded gun, in violation of a statue that prohibited
the carrying of handgun without a permit. D sought dismissal of his
indictment on the ground that the law expressly exempted peace
officers from liability under the state.
The statutory definition of peace officers included any official or
guard of any state prion or of any penal correctional institution --As a federal corrections officer D claimed he believed that he was
exempt under the law
Ds reading of the statue was not unreasonable, indded the trial judge
agreed. Nonetheless an appellate court concluded that he was not a
peace officer within the meaning off the statue
No one is ever excused for relying on a personal even reasonablemisreading of a statue
Rule: Receiving advice from private council is not a defense
Rule: A person is excused for committing a criminal offense if she reasonably
relies on an official statement of the law, later determined to be erroneous,
obtained from a person or public body with responsibility for the
interpretation, administration, or enforcement of the law defining the offense
Narrowly applied. To be official the statement must:
o 1. Be contained in a statue later declared to be invalided
o 2. A judicial decision of the highest court in the jurisdiction,
later determine to be erroneous; or
e.g. Cant act on decisions that are pending in the
Supreme Court
o 3. An official, but erroneous, interpretation of the law,
secured from a public officer in charge of its interpretation,
administration, or enforcement, such as the Attorney General
of the state or in the case of federal law, the United States
Must be official, e.g. cant be the attorney general
telling you at the bar

Public works cant tell you about the rules of the

road, etc.

Fair Notice (excuse)

At common law, it is said that every one is conclusively presumed to know
the law. This means not only that citizens are presumed to understand the
law, but more fundamentally to be aware of the existence of each criminal law
There are occasional cases in which it is so grossly unjust to assume that a
citizen is aware of a penal laws existence that the court gives some leeway
See Lambert v. California: the Court overturned Ds conviction for failing to
register with the city of Los Angeles as a prior convicted felon within 5 days
of being there, as required pursuant to a strict-liability ordinance of which D
was unaware. Notwithstanding the usual rule that ignorance of the law is no
excuse, the Court reversed the conviction on lack of fair notice due process
grounds.
Although it appear that this ruling could open up fraudulent claims of not
knowing the law, the court saw this is an atypical scenario
This situation deals with conduct that is wholly passive mere failure
to register. It is unlike the commission of acts, or the failure to act
under circumstances that should alert the doer to the consequences of
his deed
Passive (omission) and malum prohibitum
Ignorance or Mistake that negate mens rea Failure-of-proof
The defendants claim is that because of a mistake of law almost always it is
a mistake regarding a law other than the one for which she is being charged
he did not have the requisite mens rea to be convicted of the offense charged.
To the extent that this type of claim is exculpatory, it is like a mistake-of-fact
claim in that the defendant is acquitted for the straightforward reason that the
prosecution has failed to meet its constitutional burden of proof regarding an
essential element of the offense
Sometimes knowledge that a crime is a crime does exist
More often, a defendants lack of knowledge of, or misunderstanding
regarding the meaning or application of, another law typically, a non-penal
law will negate the mens rea element in the definition of the criminal
offense
E.g. D is charged with rape after he has nonconsensual sexual intercourse
with V. At the time of his actions, D believed that V legally was his wife, thus
taking his conduct outside the rape law, which prohibits nonconsensual
intercourse with a female not his wife. In fact, the marriage ceremony in
which he and v participated in was legally invalid, so v was legally not his
wife
In these cases, the D presumably was aware of, and understood the meaning
of, the criminal state (rape) that was the basis of his prosecution. At the same
time, however, the defendant was unaware of, or misunderstood the import of,
another law (marriage law), under the circumstances in which this mistake of
law arguably is relevant to the defendants criminal liability.
Shorthand: A mistake-of-law claim of the sort described here may be termed a
different-law mistake, because the claimed mistake related to a law other than
the offense for which the defendant has been charged
First consideration for this defense: Whether the offense charged is one of
specific intent, general-intent, or strict liability
Specific-Intent Offenses

A different-law mistake, whether reasonable or reasonable, is a defense in the

prosecution of a specific-intent offense, if the mistake negate the specific
intent in the prosecuted offense.
The doctrine parallels the rule relating to mistake-of-fact in the protection of
specific-intent crimes (See above)
See Cheek v. Unites States D was an anti-tax activist who failed to file federal
income tax returns for 6 years. As a result, C was charged with 6 counts of
willfully failing to file federal income tax returns.
willfully means a voluntary and intentional violation of a known
law
D explained that he attended seminars sponsored by anti-tax
organizations that indicated that wages did not constitute income
under the IRS code. Therefore, D testified that he believed he was
not required to report wages.
The supreme Court ruled that if the jury believed Ds outlandish
believes, his mistake regarding the meaning of the term income
under the revenue code disproved that he intentionally violated a
known legal duty
Key: there was a specific intent in the statue that he did not violate
o Belief does not have to be reasonable the jury gets to
decide..
General-Intent Offenses
Dressler says a different-law mistake, whether reasonable or unreasonable is
not a defense to a general-intent crime
Goes against what you would expect because people are punished in the
absence of culpability, since one who acts one the basis of a reasonable
mistake of law lacks moral blameworthiness
Strict-Liability Offenses
Book says a different-law mistake, whether reasonable or unreasonable, is not
a defense to a strict-liability offense
Because there is no mens rea to negate

MPC Mistake of Law

2.02(9): Unless the definition of a crime so provides, neither knowledge nor
recklessness or negligence as to whether conduct constitutes a crime or as to the
existence, meaning or application of the law determining the elements of an offense is
an element of such offense
Exceptions:
Reasonable Reliance Doctrine
In many respects it codifies the common law doctrine
o 2.04(3)(b): Mistake of law is a defense when:
1. He relies on an official, but erroneous, statement of
the law;
2. He relies on an official interpretation by a public
official or body responsible for the interpretation,
administration or enforcement of the law; and
3. The reliance is otherwise reasonable
o Commentary says a person may be excused in these
circumstances because he has acted in law-abiding fashion,
the danger of fraud is slight, and her claim is not unduly
difficult to prove or disprove

Lawyers advice is generally not enough

Fair Notice
2.04(3)(a): A defendant is not guilty of an offense
o (1) if she does not believe that her conduct is illegal, and
o (2) was not published or otherwise reasonably made
available to her before she violated the law
o The code defense only applies if the statue was neither
published nor otherwise made reasonably available to the
actor before she committed the crime
The code predates Lambert see above.
Under the MPC, Lambert would be guilty because
the law was published and available to the citizen
regardless of the fact the prohibited conduct itself
would not alert an actor to the need to investigate
whether there is a relevant published statue.
Ignorance or Mistake That Negates Mens Rea
MPC requires proof of some culpable state of mind (repeated again)
2.04(1) provides that a mistake of law is a defense if it negated a
material element of the offense, or if the law expressly provides for a
mistake of law defense
In order to convict an individual for illegal possession or acquisition of food stamps,
the prosecution must demonstrate that the accused had knowledge that his possession
or acquisition of the stamps was in a manner forbidden by law. Liparota v. United
States, 471 U.S. 419 (1985)
Relevant law read whoever knowingly uses, transfers, acquires, alters, or possesses
coupons or authorization cards in any manner not authorized by [the statute] or
regulations can be criminally liable
Court held that knowingly in this context applied to all elements, relying
specifically upon Morissettes statement that an injury can amount to a crime only
when inflicted by intention

Causation
Ingredient of the actus reus
Actus reus requires
o Voluntary act/ omission
o Social harm
o There must be a link between the two: the defendants voluntary act (or omission) must result
in cause the social harm
Explicit in all crimes
As a practical matter, however, causation only turns up as an issue in the prosecution of result
crimes i.e. when the social harm of an offense is an unwanted result (e.g. the death of another human
being) almost always homicide crimes is where this comes up
But-for test
o Actual cause aka cause-in-fact and proximate cause aka legal cause
o But for Ds voluntary act(s), would the social harm have occurred when it did?
if the answer is no- if the social harm would not have occurred when it did in the
absence of Ds voluntary conduct D is an actual cause of the result.
This test serves to exclude certain forces, including human ones, from potential
responsibility for ensuring harm.

Exception: D cannot be held criminally responsible for social harm unless the
prosecution proves beyond a responsible doubt that he is not a (doesnt have to be
the) but-for cause of the harm
D must also have the mens rea and proximately cause the harm
Causes vs. conditions
o conditions are things that are necessary for the crime but are common things. E.g. not the
physics of the situation. What the D did is what is usually looked at
confusing causation with mens rea
o these are independents things
o causation without mens rea
e.g. D has a minor argument with V. V, upset about the argument, leaves the house,
and walks across the street. As he does, he is struck and killed by an automobile
driven by X.
D is an actual cause (but-for) cause because but for there argument V would
have never crossed the street
For this reason actual cause serves only to eliminate candidates for
responsibility; it does not resolve the matter of ultimate causal responsibility,
which awaits proximate causation analysis.
Second, and more immediately to the point, the facts do not suggest that D
possessed a culpable state of mind any mens rea regarding Vs death.
Thus, this is a case of but-for causation without mens rea
o Mens rea without causation
D1, intending to kill V, shoots V barely nicking him. Simultaneously, D2,
independently and accidentally, shoots V in the heart. V dies instantly. Here, D1
intended to kill V, but did not cause the death; thus, D1 is not legally responsible for
Vs death. D2 is the only potential candidate for homicide prosecution, and he may
also be acquitted for lack of mens rea

Multiple Actual Causes

o Accelerating a result: 186
Only about when the V died, if them D made it happen faster than it would have
otherwise
o Concurrent sufficient causes: 187
MPC: 2.03(1)(a)
o Applies the but-for rue. To be guilty of an offense, a persons conduct must cause the
prohibited result. Cause is defined under the Code as an antecedent but for which the result
in question would not have occurred
o Unlike common law, the MPC treats but-for causation as the exclusive meaning of
causation in the criminal law. The code treats matter of proximate causation as issues
relating instead to the actors culpability.
o When culpability is not a requirement (felony-murder) the Code provides that causation is
not established unless the actual result is a probable consequence of the actors conduct.
o A D may not be convicted of felony-murder if the death was not a probable consequence of
his felonious conduct
o E.g. if D attempted to rob a bank, and the bank teller was accidently electrocutes pressing the
burglar alarm switch, D would not be liable for the death because the actual result death by
electrocution was not a probable consequence of robbing a bank
HOMICIDE: Common Law
Intentional Killing
The killing of a human being by another human being with malice aforethought
AFORETHOUGHT

the meaning is really not important.

**Unless a statue modifies the common law by requiring proof of premeditation, a spur of the
moment killing may constitute murder
Malice
o (1) The intention to kill a human being
o (2) the intention to inflict grievous bodily injury on another
o (3) Depraved heart murder: an extremely reckless disregard for the value of human life
o (4) Felony-murder: The intention to commit a felony during the commission or attempted
commission of which death results
Pennsylvania Model Two degrees (standard) Common law
o Pennsylvania in 1794 divided murder into two degrees
1st degree- death penalty
2nd degree: lesser sentence was imposed
split manslaughter into voluntary and involuntary
o *THIS IS WHERE THE COMMON LAW MATTERS states that still use this approach
o States either do not expressly define murder (in which the common law rules apply) or they
define murder in common law terms (malice aforethought)
o Murder statutes are meant to divide common law murder into statutory degrees of the offense
o **To apply statues modeled on the Pennsylvania system**
1st: determine whether a murder (as distinguished from a lesser offense or no offense)
has occurred. That is, a lawyer cannot logically determine what statutory degree of
murder is implicated until he determines , in the first place, that the killing is properly
characterized as murder.
Must decide whether the homicide was committed with anyone of the 4
mental states that constitutes common law malice aforethought
2nd: Assuming a murder has occurred, three types of murder fall within the first
degree category.
(1) Murders that are committed in a statutorily specified manner are
considered sufficiently morally heinous to merit the stiffest penalty. (see
enumerated categories in the statue e.g. poison, lying-in-wait, etc.)
(2) Willful, deliberate, and premeditated killings
(3) Homicide that occurs during the perpetration or attempted perpetration of
statutorily enumerated felony (in the originally Penn stature: arson, rape
robbery, and burglary) is first degree
3rd All other forms are murder in the second degree
if it is not within the first-degree, it falls unto second degree. Has to be
expressly in the first degree
e.g. intentional killings that are not premeditated and deliberate; intent to
inflict grievous bodily injury killings; depraved heart killings; and deaths that
occur during the commission of any felony not listed in the first-degree
section of the murder statue
Murder: Intent to Kill (falling above common law approach)
o One who intentionally kills another human being without justification (e.g. self defense),
excuse (e.g. insanity), or mitigating circumstances (e.g. sudden heat of passion) is guilty of
killing with malice aforethought express malice and, therefore, is guilty of common
law murder
o Typically, a murder involving the specific intent to kill is first degree murder in jurisdiction
that grade the offense by degree if the homicide was also deliberate and premeditated, as
these the terms are defined below
o Proving the Intent to Kill
Natural and Probable Consequences Rule: (A way to presume intentions)
o
o

An intentional killing involves subjective fault: prosecutor must prove beyond

a reasonable doubt that the D formed the actual intent to kill another person,
rather than simply, a reasonable person would have knew that the conduct
would result in death.
How is this proved then?
(1) Ordinary people intend the natural and proable consequences of
their actions
(2) The defendant is an ordinary person
(3) Therefore, he intended the natural and proable consequence of his
actions
When the probable consequences of a Ds conduct is that another person will,
die the preceding rule allows the jury to infer the requiste specific intent.
E.g. if D savagely beats V over the head with a baseball bat, which actions
cause Vs death, the prosecution may seek to prove that D intended to kill V
by demonstrating to the jury (and emphasizing in closing arguments) that the
probable consequence of such a beating was Vs death; therefore, in absence
of evidence that D was no an ordinary person, the jury may infer that D
intended the natural and probable consequences of his conduct, i.e. Vs death
Deadly-weapon: When a person kills another with a deadly weapon, proof of
intent to kill is strengthened further. When someone uses a deadly weapon
directed at a vital part of the human anatomy, an intention to kill may properly
be inferred
Willful, Deliberate, Premeditated Killings
This is almost always murder in the first degree.
*There are different definitions of the offense
Willful: Although the term willful has various definitions in the criminal law, in this
contest it means, simply, a specific intent to kill
Deliberate and premeditated: There is disagreement here. Some do away with there
meaning even though there still there. Others combine them into just premeditation
It is meant to separate the worst kinds of murders which deserve the most
severe penalties
Problem: is someone that premeditates there killing really wore than someone
who does it quickly?
Compare State v. Forrest where a loving child killed her terminally ill
parent after long and careful consideration in order to end the parent
suffering to a case there a person impulsively pushes a small child
sitting on a bridge into the river
This is why degrees can be somewhat silly because the preditated
mercy killing is first degree where pushing a kid off the bride like this
is second degree
~Deliberate
Some use it as a synonym for intentional as in I deliberately did X.
Other courts merge the concept into the element of premeditation
Best view to measure and evaluate the major facets of a choice or problem
The quality of thought put into the process of killing was it will a coole
mind
Premeditated
To think about beforehand.
*Sharply divided on how much prior thought must go into a homicide before
it is considered premeditated

One side of the spectrum: No time is too short for a wicked man to frame in
Is mind the scheme of murder
Any interval of time between the forming of the intent to kill and the
execution of that intent, which is of sufficient duration for the accused
to be fully conscious of what he intended is sufficient
Here premeditation loses its independent statues it undermines the
legislative division of murder into degrees because the only difference
between first and second degree is the time between the intent and act
and if that time can be no time at all there is no real difference
Other view: Some appreciable time to premeditate
No specific period of time is required, but the essence of the term is
preserved by requiring proof that the killer had time not only to form
the intent, but also to turn the matter over in his mind and to give the
matter at least a second thought
Goes against the idea that a murder can be calculated in a matter of a
split second and be premeditated
~Murder: Intent to Inflict Grievous Bodily Injury
o A malice aforethought is implied if a person intend to accuse grievous bodily injury to another,
but death results
o In states that grade murder, this is always second degree
o Aka great bodily harm or serious bodily harm
o Often not defined in the murder context but is explained in case law or statues in relating to
other offenses like assault with intent to commit grievous bodily harm
o These carry over to the implied malice for murder prosecutions
o It varies from state to state what grievous bodily injury is
o * A person who unjustifiably and inexcusably intends to cause injuries of this level of severity
is guilty of murder if the victim dies as a result of the attack.
o Rarely comes up
Murder: Extreme Recklessness (Depraved Heart Murder)
o Malice aforethought is implied if a persons conduct manifest an extreme indifference to the
value of human life. (Almost always second degree)
o In modern terms, it is a reckless or extremely reckless homicide.
o It is really extreme recklessness only recklessness is for manslaughter
o Fact Supporting a Finding of Extreme Recklessness
With depraved heart murder, the D does not intend to kill his victim, but malice is
implied because there is a wanton and willful disregard of the likelihood that the
natural tendency of the Ds behavior is to cause death or great bodily harm
It is a factual matter based on the details of the specific case
Some e.gs
(1) Intentionally shoots a firearm into an occupied room, killing a person
(2) Driver her car at a high rate of speed in inclement weather and while
intoxicated, killing a pedestrian or car occupant
(3) Purchases Rottweiler dogs, fosters their aggression through improper
training, and places them in an unsecured yard, resulting in the mauling death
of a child
(4) Plays Russian roulette by loading a gun with one live and four
dummy shells, spinning the revolver, and intentionally firing it at another
person, killing them

Also can be a lethal omission such as a parent, out of indifference, fails to

feed an infant for two weeks
o Distinguishing Murder from Manslaughter
The line is not clear because the definitions of reckless (criminal negligence) and
extreme recklessness in common law are not clearly defined
Usually stated as implied malice (depraved heart) needs the deliberate perpetration of
a knowingly dangerous act withunconcern and indifference as to whether anyone is
harmed or not, or where the killing was proximately caused by an act, the natural
consequences of which are dangerous to [human] 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.
In more precise terms, a person kills recklessly (depraved) if he consciously
disregards a substantial and unjustifiable risk to human life. When such recklessness
is extreme when the risk of death is great and the justification for taking the risk is
weak or non-existent- the actor is guilty of murder
In contrast, when a person should be, but is not, aware that her conduct is very risky
(and unjustifiably so) the risk-taking is inadvertent- her behavior may justify the
appellation of criminal negligence, but the callousness that connotes implied
malice is lacking. In these less culpable circumstances, a killing constituted
involuntary manslaughter
Murder: Felony-Murder Rule
o Classic Def: Declares that one is guilty of murder if a death results from conduct during the
commission or attempted commission of any felony
o *Highly debated (Not in Hawaii, Kentucky, Michigan. New Mexico- requires mens rea for
felony murder)
See People v. Aaron (Mich.): Michigan supreme court abolished the felony-murder
rule The staute did not explicitly codify the felony-murder rule but provided that any
murder in the course of designated felonies would be murder rule but provided that
any murder in the court of designed felonies would be murder of the first degree.
Since the statue did not define murder, the court felt free to employ its
common-law authority to reject the precedents recognizing felony-murder
theory as a route to establishing malice and treated the statue as simply raising
what is otherwise murder (because malice has been proved) to first-degree
murder when occurring in the commission of an enumerated felony
We believe that it is no longer acceptable to equate the intent to commit a
felony with the intent to kill. Intent to do great bodily harm. Today we
exercise our roe in the development of the common law by abrogating the
common-law felony murder rule
See Oretga (N.M.): the state is required to prove intent to kill or conscious disregard
for life (mens rea)
o Most modern statues provide that a death that results from the commission of a specifically
listed felony (arson, rape, robbery or burglary) constituted first-degree murder for which the
max sentence is death or life.
o An un enumerated felony is second degree murder
o Applies whether a felon kills the victim intentionally, recklessly, negligently, or accidently and
unforeseeably. Thus, the rule potentially authorizes strict liability for a death that results from
commission of a felony that is usually because the intent to commit the felony itself a
dangerous, life-threatening act- constitutes the implied malice required for common law
murder.
o In light of the potential strict-liability nature of the rule, D1, a robber, is guilty of murder if V1
dies from fright caused by the robbery
See Regina v. Serne: (no FM limiting FM rule)

D took out insurance on son and property, house was lit, son died
Rule: Any act known to be dangerous to life and likely in itself to cause death,
done for the purpose of committing a felony which casues death, is murder
If subjective: no need for FM (depraved heart)
If objective: gross negligence standard (inherently dangerous)
People v. Stamp: (California) D ordered V and others to lie down on the floor during a
robbery; V, who had heart disease, died from fright
Rule: Homicide must be the direct casual result of the felony whether or not
death was natural/probable consequence of felony
Not limited to foreseeable deaths/proximate cause
~Similarly, D2 is guilty of felony-murder if she accidently shoots V2 in the chest during the
commission of a felony, and V2 dies years later from a heart attack during a backyard
basketball game, as the result of permanent damage to the heart produced by the original
wound
*Unless there is an exception, the rule includes a homicide that occurs during the commission
of any felony,
e.g. [case]
D is guilty of murder is she attempts to steal Vs watch from Vs purse and a gun
concealed in it discharges, killing V.
The rule extends implicitly (and often expressly by statue) to accomplices in the commission
of felonies. Therefore if S was an accomplice in any of the hypothesized felonies, he would be
guilty of murder, without regard to his own state of mind relating to the death (for common
law) (See Accomplice)
Some jurisdictions say that there needs to be some foreseeability
See People v. Dillon: (CA) holding that a sentence of life imprisonment under the
felony-murder rule, based on the underlying felony of attempted robbery of a
marijuana crop violated the states prohibition on cruel and unusual punishment)
Transferred Intent
Sometimes defended with the transferred intent doctrine. The argument is that the
felons intent to commit a felony is transferred to the homicide- therefore, it is not one
of strict liability but one of intent
This is a misuse of the doctrine.
The doctrine states: An actors intention to commit a particular social harm, X,
relating to a particular victim, A, may be transferred to a different, unintended victim,
B, of the same same social harm,X.
Ordinarily, the law does not recognize a transference of inent to cause on social harm,
X, to a different and greater harm, Y, involoving the same victim.
This, when D intend to steal rum on a boat (X), and in the process accidently sets fire
to the boat (Y), he is not guilty of intentionally burning the boat.
See Regina v. Faulkner
Yet, this is precisely what occurs with felony-murder: The felons intent to commit a
felony (X) is transferred to the different, and more serious, harm (Y)
Burden of proof (Malice-Aforethought not as easy)
Most felony-murder conviction do not involve innocent homicides. E.g. a robber may
intentionally shoot the V or police during commission of the crime
In such cases, one may infer that the felon intended to kill, or at least, seriously injure
the victim.
Thus, malice aforethought can be proven independently of the felony and the felonymurder rule is unnecessary
Even when a felon does not intend to kill or seriously injure another person, his
felonious conduct will often manifest a depraved heart murder (extreme recklessness)

E.g. An arsonist may burn down a house knowing that the building is
probably occupied, or a rapist may would the victim in order to overcome
resistance
Even though the D can be charged with these forms of malice aforethought murder,
the prosecution will often use felony-murder rule instead because the mens rea
requirement is not there
*Felony-murder dispenses with the requirement that the govt show that the felon
intended to kill or injure the victim grievously or that the felon was aware that his
conduct was highly dangerous to human life
Also if the felony is enumerated first-degree murder can be charged though
the felony-murder rule rather than second degree from the depraved heart
***All the prosecution must prove is that the d committed the felony and that the
death occurred during its commission
Inherently-Dangerous-Felony Limitation
In order to avoid the potential harshness of the felony-murder rule, many states limit
the rule to homicides that occurred during the commission of a felony dangerous to
human life
Abstract Approach: To determine whether a felony is inherently dangerous, a
court will ignore the facts of the specific case and, instead, consider the elements of
the offense in the abstract look at the offense as it is defined by statue. [judgedecided]
Test: whether a crime, by its vary nature cannot be committed without
creating a substantial risk that someone will be killed OR An offense
carrying a high probability that death will result
See People v. Phillips: (CA) held that theft is not an inherently dangerous
felony, even though the felon in the particular case caused the death of a
cancer-ridden child by falsely claiming that he had a cure for the disease,
which assurances induced the parents to forego traditional medical care
Rule: FM rule only applies to felonies inherently dangerous to life
Grand theft is not inherently dangerous, based on classification not
actual commission
For Depraved heart: jury must have found that D didnt believe his
treatment would work, because this would exhibit extreme
recklessness but D could have believed she would die anyway
CA (rare) approach
See People v. Henderson: The offense of false imprisonment (defined as
imprisonment effect by violence, menace, fraud, or deceit) is NOT
dangerous in the abstract, because the offense CAN BE committed in
nonviolent fashion (fraud or deceit)
The fact the felon in the actual case used force to imprison the victim
was immaterial to the analysis in the abstract.
See People v. Howard: The felony offense of driving with a willful or
wanton disregard for the safety of persons or property while fleeing from a
pursing police officer an offense that further defined the required
wantonness to include any driving-while-fleeing that results in three or more
traffic violations of any kind or that causes any damage to property is
excluded from the felony-murder rule because the offense as defined
include[s] conduct that ordinarily would not be considered particularly
dangerous.

As Applied Approach: Many states determine the dangerousness of a felony by

considering the facts and the circumstances of the particular case to determine if such
felony was inherently dangerous in the manner and circumstances in which it was
committed.
See Hines v. State: Out hunting, mistook friend for a turkey, D isa felon with a
firearm
Rule: A felony is inherently dangerous when it is dangerous per se or
by its circumstances creates a foreseeable risk of death (judge
decided)
Our hunting, knew others were around, took unsafe shot at dusk
Here the D was found guilty
Main approach
See People v. Stewart: (R.I.) Mother on crack binge, neglects feeding child
Rule: Inherent dangerousness is a question for the jury
Merger Limitation
Felony-murder rule only applies if the predicate (underlying) felony is
independent of, or collateral to, homicide.
If the felony is not independent, then the felony is said to merge with the
homicide and cannot serve as the basis for a felony-murder conviction
Jurisdictions that recognize this limitation commonly only apply it in regard
to felonies not specifically enumerated in the states murder statute
Assault type crimes usually are the type considered because it would destroy
there use
Assault and assault with a deadly weapon cannot form bass of FM conviction
obliterate murder manslaughter distinction
Time and Distance Requirements
Typically starts when the D could be charged with attempt and continues at least until
all of the elements of the crime are completed. Thus, the rule does not apply if the
felony was conceived of after the homicide, i.e. as an afterthought of the killing
But the felony continues, even after commission of the crime, as long as the felony
and the homicidal act can be interpreted as part of one continuous transaction.
See People v. Gills (Mich): D was convicted when 10 minutes after
committing a burglary, and 10 miles away, a police car encountered Ds car
and, in an ensuing high-speed chase, D collided with another car killing its
driver
Fleeing after burglary FM
Still in furtherance
When the killing conduct occurred and not when the death itself ensued.
Causation Requirement
(1) But for the felony, the death would not have occurred; and
(2) The result must have been the natural and probable consequence of the Ds action,
or that it must have been foreseeable.
Perception that the result must be faily attributable to the Ds action, rather
than to mere coincidence or to the intervening action of another.
E.g. Robber sees an enemy at the back and chooses to shoot him independently of the
robbery (perhaps before it even started)
Act unrelated to the felony
Here there is not proximate and actual cause
See People v. Cabaltero (pg.517 casebook~~

Casual connection can often be easy to satisfy: If V suffers a fatal heart attack brought
on by Ds felonious conduct, the connection is satisfied, even if the heart failure
occurs two hours after the crime and is the result of other casual factors as well (only
needs to be one cause)
On the other hand it can be difficult
See King v. Commonwealth: D accompanied by accomplice X, piloted an
airplane contain marijuana through a thick fog. A crash ensued, in which X
died.
The court held that the felony-murder rule did not apply. Here the
relationship between the felony and the death was coincidental: D
was not flying unduly low to avoid radar sighting because of the
felonious cargo, nor was he flying in a reckless manner in order to
avoid capture; the accident was, simply, the result of bad weather
Killing by a Non-Felon, usually in resistance (Not-In Furtherance)
E.g. F1 and F2 enter a liquor store in order to rob it. F1 points a gun at X, a store
employee, and threatens to kill her unless she hands over the money in the cash
register. To prove a point F1 fires warning shots over Xs head. In response, X
justifiable fires a weapon at F1 to prevent robbery. Two people- F1 and V, a customer
in the store are struck and killed by the bullets. Can F2 be convicted of felonymurder of F1 and V?
The shots here were fired by X (store employee) rather than one of the felons.
In a literal sense, the killings occurred during the commission or attempted
commission of the felony, but they did not occur in furtherance of it.
When should the felony-murder rule apply to third parties killings of people
during felonies?
The Agency Approach (majority of states)
Provides that the felony-murder rule does not extend to a killing, although
growing out of the commission of the felony, if directly attributable to the act
of one other than the defendant or those associated with him in the unlawful
enterprise
The rule does not apply if an adversary to the crime, rather than a felon,
personally commits the homicidal act
Exception: A person is responsible for the acts of another if the actor-shooter
is functioning as an agent of the non-shooter.
This agency relationship exists when the secondary party is n accomplice of
the primary party
Under such circumstances, the primary partys acts are properly
imputed to the secondary party. Therefore, in the ordinary felonymurder situatin, when a felon kills an innocent person, any co-felons
are also responsivle for the shooting the shooting felon acts as an
agent of the non-shooting co-felons (It is as if the non-shooting cofelons said to the shooting felon in advance, We are in this together,
so your acts are our acts)
In the present hypo, however, the shooter (x) was NOT an accomplice
of the felons: X was acting antagonistically to their interests, not as
their agen.
Therefore, on-agent Xs actions (killing F1 and V) cannot be imputed
to F2
Rationale: Xs killing is not in furtherance of the crime

Felony-murder can hae little or no deterrent effect when the shooter is a nonfelon, since the felon has no control over the actions of the innocent person
(exception when they purposely use an innocent person to kill e.g. telling him
to go outside with fake gun)
See State v. Canola: Felons (F1,F2,F3) store owner (X). X and F1 die. F2 and
F3 convicted of felony murder
Agency theory: F2 and F3 only liable for Xs death, not F1s
Proximate Cause: F2 and F3 liable for both deaths
Statue could support both but majority choose agency theory
Concurrence: proximate cause theory
o Exception: death of co-felon justifiable homicide
o Key: Convince friend to run outside with water gun after
telling police justifiable homicide can be basis for murder
conviction
The Proximate Causation Approach (minority of states)
A felon is liable for any death that is the proximate result of the felony,
whether the shooter is a felon or a third party.
Rationale: Justified on the ground that when a felons attempt to commit a
forcible felony sets 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 and almost inevitable sequence
results from the initial criminal act.
The result will depend on the particular facts of the case, and the matter
ultimately is one for the jury to decide.

Limited Version
Should a court that permits the operation of the felony-murder rule
when the shooter is a non-felon take into consideration who is shot?
In the hypo under discussion, for example, should a proximate
causation jurisdiction distinguish between deaths of V and F1, for
purposes of F2s felony murder responsibility?
Pennsylvania once drew a distinction: The rule was that a felony (F2)
could be convicted of murder in a bystanders (Vs) death, but not as
to the death of a co-felon (F1).
Rationale: Presumably because when a non-felon kills a felon this
homicide is justifiable, whereas the death of a bystander accidently
shot by a non-felon is excusable homicide.
Reasoning is flawed because the felone who would otherwise be
convicted wrongfully assisted in reating the consition that hade the
co-felons death justifiable
Since changed to the agency rule
NEED MORE ORDER TO THE FELONY-MURDER RULE

~Distinguishing Felony-Murder From Other Theories (The Provocative Act Doctrine)

o Even in an agency jurisdiction, a felon may be held responsible for death of another at the
hands of a third party if the basis for the charge is no felony-murder, but instead is founded on
what is sometimes termed provocative act doctrine, which is simply a form of reckless
(depraved-heart) homicide

E.g. in the hypo, F1s conduct pointing a loaded gun at X, threatening Xs life, and shooting
over Xs head arguably manifested an extreme indifference to the value of human life
Consequently, if F1 had unintentionally killed X by her provocative actions, F1 would
have been guilty of murder, not simply on felony-murder grounds, but also on the
basis of depraved-heart murder. And, F2 would have been guilty of that murder as
well, under traditional complicity principles. Since F1s reckless acts would have been
imputed to her
o New working hypo: Suppose that F1s reckless and provocative behavior had caused X to fire
a gun in self-defense, and further suppose that a bullet from Xs weapon had accidently struck
and killed bystander V instead.
Now the provocative act doctrine applies: On these facts, since F1 recklessly caused X
to fire the weapon that killed V, F1 would be guilty of reckless murder her
provocative acts proximately caused the result and F2 would be held responsible for
Vs death, since F1s reckless conduct may be imputed to F2, her accomplice
o On the other hand, suppose that Xs aim had been better, and he had shot and killed F1, as
intended, in self-defense. No, F2, may not be convicted of F1s death at Xs hands, because
F1s malicious (reckless) conduct did not result in the unlawful killing of another human
being, but rather in his own justifiable homicide. Therefore, in the case of f1s death, there is
no criminal homicide to impute to F2
Manslaughter
An unlawful killing of a human being by another human being without malice aforethought
MPC puts it a homicide without malice aforethought on the one hand and without justification or
excuse on the other
Types
o (1) Voluntary manslaughter: Intentional killing committed in sudden heat of passion as the
result of adequate provocation
o (2) Involuntary manslaughter: Unintentional killing that is the result of an act, lawful itself,
but [done] in an unlawful manner, and without due causation and circumspection a homicide
done in a criminally negligent manner
o (3) Involuntary manslaughter: Unintentional killing that occurs during the commission or
attempted commission of an unlawful act- similar to felony-murder but if the felony is not as
serious ? pg. 500, probably not important
o
Manslaughter: Provocation (Sudden Heat of Passion)
o At common law, an intentional homicide committed in sudden heat of passion as the result
of adequate provocation mitigates the offense to voluntary manslaughter
o The common law defense contains four elements
(1) The actor must have acted in heat of passion (subjective);
(2) The passion must have been the result of adequate provocation (objective);
(3) The actor must not have had a reasonable opportunity to cool off (subjective????);
and
(4) There must be a causal link between the provocation, the passion, and the
homicide (we didnt talk about this in case expressly)
o State of Passion
D must be in a state of passion at the moment of the homicide

o Adequate Provocation
Common Law Categories
An amount of provocation as would be excited by the circumstances in the
mind of a reasonable man
They have been enumerated in common law jurisdiction that follow the rule
o

(1)Aggravated assault or battery (2) mutual combat (3) Commission

of a serious crime against a close relative of the defendant (4) Illegal
arrest (old concept) and (5) Observation of spousal adultery
Those not considered include: Trivial battery, learning about (but not
observing) adultery, observation of the sexual unfaithfulness of a
fianc or other unmarried sexual partner, and words, no matter how
insulting or offensive
See Girouard v. State (Md.): Married for 2 months, both in the Army, wife had
resumed relationship with od BF, verbal fight where wife threatened court
martial. D stabbed her 19 times, slit his own wrists. Bench trial: 2 nd degree (D
thought he might get the benefits of provocation defense~)
Rule: Provocation must be calculated to inflame the passion of a
reasonable man and tend to cause him to act for the moment from
passion rather than reason
Words alone are not enough. Must be accompanied by conduct
indicating present intention and ability to harm
Wife didnt have size or strength to cause D to fear bodily harm
Recognized traditional 5 categories no need to broaden
Other Common Law
Many states have allowed the jury to decide what is sufficient provocation
(still minority)
No court can catalogue all the various facts and combinations of facts which
shall be held sufficient.
Test: Is the unlawful provocation such that it is calculated to inflame the
passion of a reasonable [person] and tend to cause [that person] to act for the
moment from passion rather than reason

Reasonable Person
Who is the reasonable person to whom the provoked defendant is
compared, in order to determine what constituted adequate
provocation?
Here it is more accurate to describe the objective character in this
context as some courts so as an ordinary (or, at least ordinarily
reasonable) person, one who sometimes, unfortunately, acts out of
uncontrolled emotion rather than reason
The person is of average disposition, i.e. not exceptionally
belligerent; sober at the time of the provocation; and of normal mental
capacity
Juries are increasingly asked to test the Ds reaction to a provocation
by the standard of the ordinary persons in the actors situation. It is
ambiguous what the actors situation might include
The actors situation
o (1) Measuring the gravity of the provocation to the
reasonable/ordinary person; and
o (2) In assessing the level of self-control to be expected of a
reasonable/ordinary person
o ~~
In it is an objective normal person inside the shoes of the Ds situation
See Maher v. People (Mich.): D saw wife (W) and another man (M)
go into woods, exist hour later (friend told him they had had sex in
woods before), went to saloon and shot M. evidence excluded,
convicted of assault with intent to murder

Rule: Was D disturbed/obscured by passion which might

render ordinary men liable to act rashly/without due
deliberation or reflection and from passion rather than
judgment
o Cooling Off: Should go to jury to determine whether the time
was reasonable under all circumstances of the particular case
o Jury should consider the evidence (indicates provocation)
o Viewed as an excuse: provocation valid regardless of whether
true
o Dissent justification: not valid unless facts are true
o No reason to relax rule (less severe punishment now, not
death)
See State v. Pittman: 12 year old spanked by grandfather, returned in
10 mins shot him
Rule: Guardian legally entitled to paddle him no provocation
Adultery: Ds who invoke the provocation defense overwhelmingly male,
victims overwhelmingly female
Rule: Must be legally married and must see sexual intercourse not
some other conduct
See State v. Simonovich: (no provocation): W admitted to past
adultery, taunted she would continue
See Dennis v. State:
o D saw W with dress raised, embrace with another. Shot the
man
o Rule: provocation only if he saw sexual intercourse
See State v. Turner (no provocation): D shot her unfaithful
husband/partner (not legally married)
Cooling Off Time
The defense involves sudden heat of passion. The defense is unavailable if a
reasonable person would have cooled off in the time that elapsed between the
provocation and the fatal act
Historically, this element is strictly applied. The homicidal act had to occur in the
first transport of passion. As a result, the defense was unavailable to a person
subjected, over an extended period of time, to multiple minor provocative acts that
cumulatively cause the individual to boil over;
Likewise, the provocation defense could not successfully be asserted by one who
brooded over the provocation before acting
See State v. Gounagias (Wash.)V sodomized G while the latter was unconscious. For
three weeks, V ridiculed G, by informing others of what had place. Finally, G could
take no more of it, and he killed V in rage
Court held that G was not entitled to claim provocation, as too much time had
elapsed between the original provocative act and the homicide.
Adequate cooling off period
See US v. Bordeaux: All-day drinking party. D learned that V had raped his mother 20
years ago, beat V up, then returned and slit his throat
Revelation of finding out about the rape had occurred much earlier in the day,
killed after beating
No rational basis for jury to find heat of passion
See Commonwealth v. LeClair: a man had suspected his wifes infidelity for a couple
of weeks, once confirmed, strangled her.
Prior suspicions provided adequate cooling off time
o

See People v. Berry: (sufficient to go to jury)

D waited for victim for 20 hours in apartment before killing her
Jury could find heat of passion in smoldering passion aggravated by passing
time
As with the issue of adequate provocation, the cooling off element of the defense,
which used to be resolved by the judge, is typically left to the jury today
o Casual Connection
Even if a person is adequately provoked, the provocation defense it unavailable to a D
whose motivation for the homicide is causally unrelated to the provocation
o Partial Justification or Partial Excuse
Does the provocation as a partial justification or a partial excuse for a homicide, or is
it a combination of both concepts?
Partial justification: Do we say that a heat-of-passion killing is a less serious offense
than an ordinary homicide because the decedent (partially) deserved to die because of
the provocation
The provocation made the provoker justifiably wrong and deserving of
punishment, but killing was too far
Or instead, do we partially excuse the killer although the killing Is as unjustified as a
murder we believe that the passion she experiences at the moment of the fatal act
makes her less responsible - less to blame for her conduct
The act was unjustified, but the reasons behind it were partially excusable
Or is it both
The defense is a concession to human weakness
Almost that the person is not acting voluntarily at the time
o Criticisms: Diminishes the incentive to have self-control in provocative situations
Those who lose self-control as a result of provocation are arguably dangerous as
persons who kill without provocation
Disadvantages women: because men are by far the most frequent victimizers [killers],
and women the most frequent victims. One need only kill the case law and consider
the types of provocations generally considered adequate to see that the doctrine is
mostly a male defense
Manslaughter: Criminal Negligence
o A homicide is manslaughter when a person does an act, lawful in itself, but in an unlawful
manner and without due caution and circumspection.
o Terms: Gross negligence, culpable negligence, and recklessness the best term is
criminal negligence
o Criminally negligent manslaughter is involuntary manslaughter (a lesser offense to sudden
heat of passion aka voluntary manslaughter)
o As criminal negligence is generally defined, involuntary manslaughter involves a gross
deviation from the standard of car that reasonable people would exercise in the same situation
Much stronger than tort negligence- must be so gross to be deserving of punishment
o The difference between criminal negligence and the sort of risk-taking that justifies a finding
of malice aforethought (depraved heart murder) is one founded on the consciousness of the
actors risk-taking.
One who is aware that he is taking a substantial and unjustifiable risk to human life,
but proceeds anyway, manifests an indifference to the value of human life that
constituted malice aforethought; one who should be aware of the risk but is not, is
negligent
E.g. One who playfully fires a gun that he knows has bullets in it, in the direction of
another person, may be convicted of murder, if the same person performs the same act
incorrectly convinced that the gun is unloaded, he is guilty of manslaughter.

Or, if a parent knowingly ignores her childs need for food or medical care to survive,
the ensuing death may constitute murder. If the parent is unaware of the peril, but
should be, the offense is manslaughter
o See Commonwealth v. Welansky
D owned night club, over capacity, emergency exits obscure and locked
Omission legal duty under ordinance. Appeals instruction
Rule: criminal liability requires more than mere/civil negligence
Probability of injury from fire probability and magnitude relevant
No justification, awareness of the risk
No Distinction between gross/criminal negligence and recklessness
o See People v. Hall: (sufficient to go to jury)
D was skiing, flew of knoll and killed another skier. Consciously disregarded a
substantial and unjustified risk that death could result
Substantial risk (speed, out of control); unjustified (fun/enjoyment); gross deviation
(trained, expert, criminal negligence statue); awareness (infer, expert)
o See State v. Williams (Wash.): (doesnt account for education or culture)
Parents convicted of involuntary manslaughter. Didnt give daughter medical
attention, gangrenous ook, feared Child Services would remove child because they
were Native American
WA statute: negligence standard convicted (gross negligence standard too)
Degree of risk: low probability but high seriousness/magnitude of harm (death)
Justification: Babys interests in remaining with parents
Awareness: Education and cultural background
Deterrence? Specific v. General
MPC commentary: Dont account for education, intelligence, culture
o See Walker v. Superior Court:
Daughter had flu symptoms, developed stiff neck. Parents decided to treat with prayer
and not medicine and she died.
Many states: treatment with prayer defense to child neglect
Not if condition is life threatening
Did parents truly believe prayer would work?
Parents cant impose religious beliefs on child (not old enough to make its own
decisions)
Manslaughter: Unlawful-act (Misdemeanor-Manslaughter) Doctrine
o An accidental homicide that occurs during the commission of an unlawful act not amounting
to a felony (or, at least, not amounting to felony that would trigger the felony-murder rule)
constitutes common law involuntary manslaughter.

This is the analogue to the felony-murder rule and, as such, is often termed the misdemeanormanslaughter rule. AKA Unlawful-act manslaughter
o Rule: A misdemeanor resulting in death can provide a basis for an involuntary manslaughter
conviction without proof of recklessness or negligence
Requires proximate cause. See Commonwealth v. Williams (failure to renew license,
no casual connection to accident)
o Some jurisidctions use a mala in se and mala prohibita distinction
o
o MPC has nothing similar
Criminal Homicide: MPC
In General
o 210.1(1): A person it guilty of criminal homicide under the MPC if he unjustifiable and
inexcusably takes the life of another human being purposely, knowingly, recklessly, or
negligently
o The MPC recognizes three forms of criminal homicide: Murder, manslaughter, and (unlike
common law) negligent homicide
Murder (MPC)
o 2.10.2(1)(a)-(b): A criminal homicide constitutes murder when the actor unjustifiably,
inexcusably, and in the absence of mitigating circumstance, kills another
(1) Purposely or knowingly; or
(2) Recklessly, under circumstances manifesting extreme indifference to the value of
human life
o Using common law terminology, a homicide is murder (defenses aside) if the actor
intentionally takes a life, or if he acts with extreme recklessness (i.e. depraved-heart murder).
o There are no degrees of murder under the MPC.
o However, the offense of murder is graded as a felony of the first degree, which originally
meant under the MPC that the offense carried a minimum sentence of from 1 to 10 years
imprisonment, and a maximum sentence of death or life imprisonment
o *MPC definition of murder abandons the common law element of malice aforethought. As
such, the common law mental state of intent to commit grievous bodily injury on form of
malice has no independent significance under the MPC
Any case involving this state of mind would constitute extreme recklessness )i.e.
murder) or a lesser form of unintentional homicide (i.e. reckless manslaughter or
negligent homicide
o Felony-Murder Approach
(Against the principle but implemented anyways)
210.2(1)(b): MPC provides that extreme recklessness (and this murder) is nonconclusively presumed if the homicide occurs while the actor is engaged in, or is an
accomplice in, the commission or attempted commission of, or flight from, one of the
dangerous felonies specified in the statue
E.g. Under this provision, if D unintentionally kills V during the commission
of a robbery, the jury should be instructed that it may, but not need, infer
extreme recklessness from commission of the crime.
If the felony was no committed in a manner that manifested an extreme
indifference to the value of human life, the felon is not guilty of murder for
the resulting homicide.
o

Manslaughter (MPC)
o In General
210.3(a)-(b): A person is guilty of manslaughter if he:
(1) Recklessly kills another; or
(2) Kills another person under circumstances that would ordinarily constitute
murder, but which homicide is committed as the result of extreme mental or
emotional disturbance for which there is a reasonable explanation or
excuse.
No unlawful-act (misdemeanor-manslaughter) rule
Manslaughter is a felony in the second degree. It carries a minimum punishment of
imprisonment from 1 to 3 years and a maximum sentence of 10 years
o Reckless Homicide
A person who kills another recklessly is guilty of manslaughter
However, a homicide committed recklessly may also constitute murder under
the MPC.
*The difference between the two offenses is that, in the case of murder, the
recklessness must manifest extreme indifference to the value of human life
This feature is not included in the definition of manslaughter
Reckless manslaughter is a necessarily-included lesser offense of reckless murder.
That is, in any case in which a D is prosecuted for reckless murder, he is also entitled
to a jury instruction regarding reckless manslaughter, and may be convicted of the
lesser offense. If the jury determines that his conscious risk-taking, although
unjustifiably and substantial was not extreme enough to merit treatment as murder
**Sharp contrast from common law, liability for manslaughter under the Code cannot
be founded on criminal negligence.
MPC believes that no person should be convicted of an offense as serious as
manslaughter in the absence of subjective fault e.g. conscious disregard of a
substantial and unjustifiable risk
o Extreme Mental or Emotional Disturbance (210.3(b))
A person who would be guilty of murder because he purposely or knowingly took a
human life, or because he killed a person recklessly under circumstances manifesting
an extreme indifference to the value of human life, is guilty of the lesser offense of
manslaughter if he killed the victim while suffering from an extreme mental or
emotional disturbance (EMED) for which there is reasonable explanation or
excuse
The reasonableness of the explanation or excuse regarding the EMED is
determined from the viewpoint of a person in the actors situation under the
circumstances as he believes them to be.
1.12(2): MPC provides that the defendant has the burden of producing evidence
regarding this affirmative defense, after which the prosecution must disprove the
defense beyond a reasonable doubt
However, most states require the D to prove the affirmative defense by a
preponderance of the evidence
One subjective and one objective component
Subjective Component
The EMED the extreme mental or emotional disturbance
This condition need not involve a state of mind so far from the norm as to be
characteristic of a mental illness.

Instead it is enough that the D experienced intense feelongs, sufficient to

cause loss of self-control, at the time of the homicide
Objective Component
There must a reasonable explanation or excuse for the EMED
It is critical to observe, however, that this standard is the objective to the
mental or emotional condition, and not to the homicide,
i.e. the defense is not based on the ground that there is a reasonable
explanation or excuse for the homicide, but rather that there is a
reasonable explanation or excuse for the EMED that caused the actor
to kill.
See People v. Casassa: D and V date casually, she told him she wasnt
falling in love. He broke into her apartment and laid in her bed. Either
to commit suicide or hurt her. Brought gifts, she refused, stabbed her,
submerged in tub
o Rule: EMED need not be spontaneous, prolonged disturbance
o Rule: Reasonableness is determined by subjective (internal
situation) and objective (external circumstances as perceived)
In turn, this objective standard is partially subjective, in that
reasonableness of the explanation is considered from the viewpoint of
a person in the actors situation under the circumstances as he
believes them to be
Actors situation is intended to incorporate the accuseds personal handicaps
and other relevant external characteristic
However, in order to preserve the normative message of the criminal law, the
idiosyncratic moral values of the D must be excluded
E.g. If V touches D on the shoulder and makes a homosexual
proposition, D may not claim EMED manslaughter on the ground that
his rage was brought on by his moral view that gay people who
make advances deserve to be killed.
The abnormal sensitivity to verbal attacks or an abnormally fearful
temperament.
These factors are left to judicial interpretation.
At least some jurisdictions: upon a finding of EMED, the D is always
entitled to a jury instruction regarding manslaughter i.e., the objective
element of the defense must be left to the trier of fact to consider
Culture:
Queen v. Zhang, p. 459 (culture not relevant)
o from China, no English, killed girlfriend when she admitted
to prostitution.
Masciantonio v. R, p. 450 (no age, race, culture, etc.)
o One law of provocation for all
Battered Spouse:
State v. McClain, p. 460 (status as battered spouse irrelevant)
o shot man she had lived with for 9 years - abusive
State v. Felton, p. 461 (proper to consider battered spouse status)

Mental Disorder:
State v. Klimas, p. 461 (psychiatric evidence irrelevant / inadmissible)
People v. Steele, p. 461 (inadmissible that was traumatized Vietnam
veteran, snapped at hearing helicopter)
Partial Individualization: (English Style)
DPP v. Camplin, p. 461 (distinguish characteristics)
o killed older man sexual abuse and taunting.
o Consider s individual characteristics that related to the
gravity of the provocation go to jury
o Consider the self-control of a reasonable person of like age
and sex as
*Comparison to Common Law Heat-of-Passion
The EMED manslaughter provision is much broader than the common law
provocation defense. First, a specific provocative act is not required to trigger the
EMED defense. All that must be proven is that the homicide occurred as the result of
an EMED for which there is a reasonable explanation of excuse.
E.g. if a psychiatrist testifies that D killed V, his brother, under the influence
of EMED, brought on by a combination of facets, including child custody
problems, the inability to maintain a recently purchased home and an
overwhelming fear of his brother, a jury instruction on manslaughter is
warranted, although V did nothing to provoke the incident
See State v. Elliott: D had been scared of his brother for years and one day
showed up at his house and killed him
Court found that the EED instruction must be given because extreme
emotional disturbance does not need hot blood or provocation, but
rather significant mental trauma that caused the D to brood for a long
period of time and then react violently, seemingly without
provocation.
See State v. White: Divorcee couldn't make house payments because husband
was not paying his child support and other financial things - she ran over him
twice with her care upon seeing him at his place of work
Supreme court allowed manslaughter because the EED defense was
based on "a significant mental trauma that has affected the defendant's
mind for a substantial period of time, simmering in the unknowing
subconscious and then inexplicably coming to the fore"
very broad interpretation of the extreme emotional disturbance
doctrine
Second, even if there is provocation, it need not involve an injury, affront, or other
provocative act perpetrated upon [the defendant] by the decedent. Therefore the
person may successfully claim the defense if he simply believes although incorrectly,
that the decedent was responsible for the affront, or even if there was a provocation
and the defendant strikes out in a blinding rage and kills an innocent bystander
Third, even if the decedent provoked the incident, it need not fall within any fixed
category of provocations; and, contrary to the common law, words alone can warrant
a manslaughter instruction
E.g. if D kills V as a result of EMED, a jury instruction on manslaughter is
warranted (although, of course, a verdict of manslaughter is not required) if
the basis for the EMED was that
(1) V derided D because he was unable to have an erection when he
attempted to have intercourse with her
(2) V took Ds reserved parking space in an apartment building, or

(3) in a restaurant, V demanded money owed to him by D from an

earlier drug transaction, a verbal argument ensued, and V placed his
hand on Ds plate
o See People v. Walker: Murder conviction affirmed; no jury
instruction on EMED given; this ruling was upheld on ground
that there was no evidence that D suffered from EMED; had
he experienced EMED, instruction would have been required
*Fourth, there is no rigid cooling-off rule. The suddenness requirement of the
common law is absent here
Negligent Homicide (MPC)
o 210.4: A criminally negligent homicide involuntary manslaughter at common law
constituted the lesser offense of negligent homicide under the Code.
o The offense is graded as a felony of the third degree, which carries a minimum sentence of
one to two years incarceration, and a maximum sentence of five years

Attempt
Mens Rea
o In General
Must have the mens rea and actus reus to be guilty of a crime
Inchoate (imperfect or incomplete) is the points in between conceiving and idea of
committing a crime and completing the criminal goal
2 varieties: complete but imperfect; and incomplete
Complete-but-imperfect attempt occurs when the actor performs all of the acts that he
set out to do, but failed to attain his criminal goal
E.g. If D, intending to kill v, purchases a gun, loads it, drives to Vs home,
waits for v to arrive, and then firses the weapon at V, but misses her target,
this is a complete attempt.
Incomplete attempt
In contrast, an incomplete attempt occurs when the actor does some of the
acts necessary to achieve the criminal goal, but quits or is prevented from
continuing e.g. a police officer arrives before completion of the attempt
o Definition of Attempt
Needs clarification: an attempt occurs when a person, with the intent to commit an
offense, performs some act done towards carrying out the intent. Not just any act
will do, however. The action must constitute a substantial step, beyond mere
preparation, toward commission of the offense
The term substantial step is a term of art in the MPC, but for common law, the
substantial step required for a criminal attempt is, simply, any conduct that has
reached the stage where conduct has passed the preparatory stage and moved to the
point of perpetration of the target offense.
In common law, attempt is a specific-intent crime
o Relationship Of An Attempt To The Target Offense
Must exist in conjunction of another crime the so-called target or substantive
offense
Most jurisdictions provide that a person is guilty of a criminal attempt when, with
intent to commit a crime, there person engaged in conduct which constitutes a
substantial step towards commission of that crime whether or not his intention is
accomplished
The implication of this definition is that, with crimes of intent, the successful
commission of the target crime logically included an attempt to commit it.

Significance: (1) in a prosecution for a crime of intent (e.g. rape), assuming

appropriate facts, a jury may instead return a guilty verdict for the lesser
offense of an attempt to commit the substantive crime (e.g. attempted rape);
and
(2) in every case where an attempt is charged, proof of the commission of the
target offense, he may not be convicted of both it and the criminal attempt.
If he was charged with the target offense, and the jury convicts him of this
offense, the criminal attempt merges with the substantive crime; the lesser
offense of attempt is absorbed by the greater one
In contrast, a few states and court opinions provide that failure to consummate
the target offense is an essential element of a criminal offense
The implication of this statement is that a criminal wrongdoer may
commit the target offense or, perhaps, unsuccessfully attempt to
commit it, but he can never do both
o Assault: Attempt in a Different way
Although a common law assault is attempted battery, the law pertaining to criminal
attempts does not apply to assaults
For a criminal (attempted battery) assault to occur, a greater degree of proximity to
completion of the offense is required than in the case of non-assault attempts
There is another difference with regard to impossibility, see below
Attempted assault is strange but accepted some places
o Inchoate Crimes in Disguise
E.g. Burglary is defined as breaking and entering the dwelling house of another at
night with the intent to commit a felony therein.
Thus, a fully consummated burglary is inchoate to a theft or to some other
crime intended to be committed on the inside of a dwelling
Compensates for stringencies found in the law of attempt.
Allows police to intervene sooner
Subjectivism and Objectivism
o Subjectivism: in determining guilt and calibrating punishment, the criminal law in general,
and attempt law in particular, should focus on an actors subjective intentions (her mens rea)
her choice to commit a crime which simultaneously bespeak her dangerousness and bad
character (or, at least, her morally culpable choice-making), rather than focus on the external
conduct (the actus reus), which may or may not result in injury on a particular occasion
Believes for inchoate offenses: that the act of execution is important [only] so far as
it verifies the firmness of the actors intent
Any act, no matter how innocuous, that verifies the actors commitment to carry out a
criminal plan, or which corroborates her confession or other incriminating evidence, is
sufficient to justify punishment for an inchoate offense
o Objectivists: Believe that conduct should not be punished unless its criminality is objectively
discernible at the time that it occurs, i.e. the defendants acts performed, without any
reliance on the accompanying mens rea, must mark his conduct as criminal in nature.
The assumption is that a neutral third-party observer could recognize the activity as
criminal even if [she] had no special knowledge about the offenders intention
Here the liability occurs when the inchoate conduct manifests criminality, and
therefore, causes social harm by disturbing the public repose, unnervingthe
community, or by causing apprehension, fear or alarm in the community because the
actor has patently set out to do serious damageand to break the accepted ruled of
social life.

Difference: D puts sugar in spouse Vs coffee. Is that attempted murder? NO. Suppose, that we
learn that D had told a friend earlier in the day that she intended to put a lethal does of poison
in Vs coffee the next morning, and suppose further that D oddly thought the sugar was
arsenic.
If we are convinced beyond a reasonable doubt from this new information that D
intended to kill V, and that the act of putting sugar in the coffee was a misguided act in
execution of this murderous plan, the subjectivist would punish D for attempted
murder.
The objectivist would likely not convict. They would look at the conduct, without
consideration of Ds prior incriminating statements or subjective belief that the
substance was arsenic. Based on conduct alone, the act of placing sugar in coffee does
not demonstrate criminality. Therefore in the absence of knowledge of Ds intentions
and beliefs, her conduct would not cause harm
But, if the objectivist did have other evidence of mens rea - they might convict
Rationale: punishing the attempt of a target crime will deter people from attempting the crime because
those who attempt the crime hope to succeed ?
o People who commit attempts are dangerous and represent a danger to the community
o Others say that one who misses his mark is just a culpable as one who has better aim
o Others still,
Punishing
o Common law tends to be more lenient
o MPC has more punishment
o Grading: idea that you should be punished more as you become closer to completing the
attempt
But sometimes you get stopped by third parties even though you were just as bad
Mens Rea of Criminal Attempts
o Criminal attempt involves two intents:
o The actor (1) must intentionally commit the acts that constitute the actus reus of an attempt (as
described below), that is, he must intentionally perform acts that bring him in proximity to
commission of a substantive offense; and
o (2) He must perform these acts with the specific intention of committing the target crime.
An attempt is a specific-intent offense, *even if the target offense is a general-intent
crime
Suppose D, a hunter, fires a gun in the woods, wounding V. D is guilty of attempted
murder of V if: (1) he intentionally pulled the trigger of the gun (as this would satisfy
the first intent required above); and (2) he did so intending to kill V (the second, and
specific, intent).
If D intentionally pulled the trigger of the gun, but did not intend to kill V by his
intentional acts, then D is not guilty of attempted murder
o Result Crimes
a result crime is an offense defined in terms of a prohibited result. For example, the
offense of murder prohibits the result of the death of a human being at the hands of
another.
For crimes of this nature, the ordinary rule if that a person is not guilty of an attempt
unless his actions in furtherance of the prohibited result are committed with the
specific purpose of causing the unlawful result
Because of the specific intent nature, the prosecution is sometimes required to prove
that the actor possessed a higher degree of culpability than is required to commit the
target offense.
o

E.g. if D blindfolds himself and fires a loaded pistol into a room that he knew
is occupied, he may be convicted of murder if someone is killed. Such a
killing although unintentional, is malicious (mens rea of murder), because it
evinces a reckless disregard for the value of human life.
However, if Ds reckless act does not kill anyone in the room, almost all
jurisdictions would rule that he is not guilty of attempted murder (although he
could be guilty of a statutory offense, such as reckless endangerment)
D purposely aimed and fired the gun he intentionally performed the acts that
brought him close to taking human life but he lacked the specific intent to
kill anyone in the room
See Thacker v. Commonwealth: shooting into a tent without specific intent to
kill does not constitute attempted murder
Colorado is the only jurisdiction that requires the same mens rea as the
underlying crime
See People v. Thomas: recognizing the offense of attempted reckless
manslaughter, and reinstating a conviction for this offense in a case in
which T fired a gun three times in Vs direction, hitting him twice
accidently
Converts reckless behavior into attempted involuntary manslaughter
Rationale of Intent Requirement
Why doesnt the law punish unintentional attempts?
One answer: the word attempt means to try, which in turn means to seek to do. This
basis for the intent requirement, however, cannot take us very far
Better question: Whether the requirement of specific intent makes good penal sense?
Should the law be changed, for example, to permit conviction of a person for
an attempt as long as he acts with the same level of culpability regarding the
prohibited result as would be sufficient to convict him for the completed
offense?

Problem: Attempted Felony Murder
Suppose D intentionally commits a felony, during the perpetration of which another
person unintentionally dies. At common law , D is guilty of murder as the result of the
felony-murder rule.
Suppose, however, D accidently fires a gun during the felony, and V is wounded. May
D be convicted of attempted felony- murder?
No this is consistent with the general rule that the offense of attempted
murder requires a specific intent to kill; the defendants intent to commit a
felony does not substitute for the intent to kill a human being
Attempted manslaughter- Yes ?
Conduct Crimes
Convicting a person for a result crime on the basis of a lesser mens rea than intent
should be distinguished from prosecutions pertaining to conduct crimes
Conduct crimes: crimes whose actus reus are defined in terms of conduct rather than
injurious results
E.g. reckless endangerment punishes dangerous conduct, even if such endangering
conduct does not result in further physical harm to others
There is little case law, but there is no logical reason why a person should not be
convicted of an attempt to commit such a conduct crime, as long as he possess the
specific intent to engage in the conduct which, if performed would constitute the
substantive offense

E.g. Suppose that D derives her car blindfolded, as a practical joke. This
conduct, it may be assumed, would constitute reckless endangerment of
others. Therefore, if D enters her car, blindfolds herself, turns on the ignition,
and is arrested at that moment, she should be convicted of attempted reckless
endangerment: she has intentionally committed the actus reus of the attempt
by purposely blindfolding herself and turning on the car ignition; and she has
the specific intent to drive the car on the road in a manner that a jury could
conclude is reckless
o Attendant Circumstances
Suppose that D, believing that V is 18 years of age, has sexual intercourse with her. In
fact, V is 16, under age of legal consent for intercourse. In the vase majority of
jurisdiction, in a prosecution for statutory rape, Ds mistake of fact, even if
reasonable, will not excuse him.
The laws are interpreted as strict liability in nature with regard to the the attendant
circumstance of the females age
If D is arrested immediately before intercourse occurs, is he guilty of attempted
statutory rape?
That is, what mens rea regarding an attendant circumstance (here, the females
age) is required for the offense of attempt?
Most agree that the ordinary specific intent requirement of attempt
law should not apply to attendant circumstances
Some think that a person should be convicted if they are reckless with
regard to any attendant circumstances
o Thus, in an attempted statutory rape case, D would not be
guilty of attempted statutory rape unless he knew that there
was a substantial risk that the girl was underage
Some think it should be the same mens rea requirement for the
completion of the actual offense with regard to attendant
circumstances
o See Neal v. State: if we read it: D was not entitled to mistakeof-fact instruction in attempted statutory rape prosecution as
it is not a defense to the crime of statutory rape
Actus Reus of Criminal Attempts
o Usually weak and unhelpful statues. E.g. an attempt involves perpetration rather than
preparation; or the Ds conduct must be proximate to completion, rather than remote.
o Policy considerations help guide the legal tests
On one hand, there is the understandable desire of courts and legislators to ease the
burden on the police, whose goal it is to prevent crimes from occurring.
Prefer knowledge of the mens rea coupled with a small amount of actus reus
On the other hand, if courts authorize too early police intervention, innocent persons,
as well as those with still barely formed criminal intentions persons who might
voluntarily turn back from criminal activity may improperly or needlessly be
arrested
Prefer actus reus as an independent indicator
o 2 main categories of tests: Those that focus on how much remains to be done before the crime
is committed; and those that consider how much has already occurred
o Test common factors
(1) Whether the act in question appears to be dangerously close to causing tangible
harm, so that police intervention cannot realistically be delayed

(2) The seriousness of the threatened harm, i.e., the more serious the crime
attempted, the further back in the series of acts leading up to the consummated
crime should the criminal law reach in holding the defendant guilty for an attempt;
(3)The strength of the evidence of the actors mens rea, i.e. the more clearly the intent
to commit the offense is proven, the less proximate the acts need to be to
consummation of the offense
rarely do states adopted a single test as the exclusive basis for determining when an attempt
has occurred; and the names of the tests (if indeed, they are provided) and their descriptions
vary by jurisdiction
Last Act Test
Some courts state that a criminal attempt only occurred when the person performed all
of the acts that he believed were necessary to commit the target offense
Applying this standard, an attempted murder-by-shooting does not occur until d pulls
the trigger of the gun; an attempted theft of a museum painting does not occur until D
begins to remove the property from the wall; and an attempted arson does not occur
unless D sets fire to the dwelling that he hopes to destroy
There is general agreement that an attempt occurs at least by the time of the last act,
but not jurisdiction requires that it reach this stage on all occasions
As a practical matter, little commend the last-act standard, except for its bright-line
nature
Hurts the police because it would be almost impossible to prevent commission
of the substantive offense
Physical Proximity Test
Some courts state that while ac actors conduct need not reach the last act, it must be
proximate to the competed crime, in that it must approach sufficiently near to it to
stand either as the first or some subsequent step in a direct movement towards the
commission of the offense after the preparations are made
OR, It must go so far that it would result, or apparently result in the actual
commission of the crime it was designed to effect, if not extrinsically hindered or
frustrated by extraneous circumstances
In essence, an attempt does not arise unless an actor has it with his power to complete
the crime almost immediately
E.g. D would be guilty of attempted robbery if, weapon in hand, he has his victim in
view and can immediately process to rob him, absent external factors, such as the
intervention of the police
On the other hand, applying this test, an attempt does not occur if two men, intending
the trick the victim out of his money, convince him, to go to the bank and withdraw
some of his cash, but the culprits are arrested before the victim withdraws the cash,
and before they can make overtures or secure the money from him
Dangerous Proximity Test
A more flexible form of the physical proximity standard: according to the standard, a
person is guilty of an attempt when his conduct is in dangerous proximity to success
or when an act is so near the result that the danger of success is very great
See People v. Rizzo: four armed men drove around looking for V, whom they
expected would be withdrawing a large sum of money from the bank. They entered
various buildings looking for their victim. Suspicious, two police officers places the
med under surveillance. Finally, the suspects were arrested when one of them entered
another building. V was not present where the arrest occurred
With apparent embarrassment, the court overturned the conviction. The court
concluded that in the absence of a victim, the armed suspects were not
dangerously close to success

o
o

See People v. Acosta: applying the dangerous proximity standard, one state court has
held that a person who, with intent to possess cocaine, orders contraband from a
supplier, meets a courter at her home, examines the good, but rejects them on quality
grounds, is guilty of attempted possession of a controlled substance
See McQuirter v. State: (proximity test, attempted rape)
D found guilty of attempted rape, sheriffs testimony is only evidence
Confession to police officer is sufficient to go tot jury
Problems:
Benign conduct can be the basis for the proximity test
Hard to distinguish actual intention/purpose
Convicted on testimony of other people alone
This is not good for unpopular groups
o Indispensible Element Test
according to this standard, an actor who does not yet possess a necessary
instrumentality for the crime, e.g. a gun for a murder or the equipment needed to
manufacture illegal drugs, has not yet crossed the lone from preparation to
perpetration, and the offense that requires action by an innocent person cannot be
attempted until such action is completed
tends to be arbitrary
o Probable Desistance Test
How far the D has already proceeded. Specifiallt, a court will find an attempt when, in
the ordinary course of events, without interruption from an external source, the
actorreached a point where it was unlikely that he would have voluntarily desisted
from his effort to commit the crime.
.
o Unequivocally Test
Or res ipsa, an act does not constitute an attempt until it cease to be equivocal. That is,
an attempt occurs when a persons conduct, standing alone, unambiguously manifests
his criminal intent (People v. Staples)
It is as if the jury observed the conduct in video form with the sound muted (so as not
to hear the actors potentially incriminating remarks), and sought to decided from the
conduct alone whether the accused was attempting to commit the offense which he is
being prosecuted for
See King v. Barker: the court stated that buying a box of matches to burn a haystack is
too ambiguous to justify conviction for attempted arson, but he was who takes
matches to a haystack and there lights ne of them. Acts unambiguously.
That would still fail the true test though because if he lights to match he may
be trying to light a pipe (it seems)
Rule: Overt acts which are sufficient in themselves to declare and proclaim
the guilty purpose with which they are done
Video without sound
Defense: Impossibility
o Hypos/Questions to think about
D wants to kill V. standing outside Vs house, he fires a gun through a window at the
bed in which he believes V is sleeping. V is not killed because she is not at home. Is D
guilty of attempted murder, even though it was impossible for D to kill V under these
circumstances ?
Yes

However, suppose that we change the facts slightly. Suppose that when D fires the
gun, V is in the bed, but is already dead from a coincidental heart attack. That is ,V is
a corpse, rather than a human being., as defined by homicide law. Is D guilty of
attempted murder?
No
Suppose that we move to the forest. D and V are hunting together; D wants to use tis
opportunity to kill V, so he shoots at V in the woods. As it turns out V the object at
which he aims- is the tree stump. Or V, sensing danger, displays a wax facsimile of
himself, and its this object that hunter-d shoots. Attempted Murder?
No
Suppose D enters an Internet chat room and converses with V, whom D believes is
an underage female, but who actually is an undercover male decoy, If D sends V an
obscene photograph by electronic mail, he cannot be convicted of distribution of
obscene materials to a minor, but may he be convicted of attempted distribution to a
minor?
Or if D makes plans over the Internet with V to have her perform nude dancing, may
D be convicted of attempted sexual performance by a child when he arrives at the
planned site only to learn that 13-year-old female is a 47 year old male Internet
undercover officer?
Two scenarios, both a male has sexual intercourse with a 17 year old female in a
jurisdiction that sets the age of consent for intercourse to 16. In other words, in both
cases statutory rape has not occurred. D1 however, believed that the girl was 15, so he
thought that he was committing statutory rape. (mistake of fact mirror)
D2 knew that the girl was 17, but he incorrectly believed that the lawful age of
consent was 18 so he also thought he was committing statutory rape (mistake of law
mirror)
Should either of the above two be charged with attempted statutory rape?
Each had the requisite mens rea and has done everything in their power to
commit the target offense. But in each case, the desired outcome is
predestined to fail for one reason or another, it was impossible for the actor
to succeed in consummating the offense. Therefore these cases raise the same
issue: Whether a person should be convicted for an attempt that cannot
succeed. In other words, is impossibility a defense to the crime of attempt?
General Rule
The common law rule regarding impossible attempts distinguishes two types: Factual
impossibility and legal impossibility
Legal impossibility is a defense
Most jurisdictions dont accept it anymore
MPC influenced
Factual Impossibility is not a defense
Factual Impossibility
Exists when a persons intended end constitutes a crime, but he fails to consummate
the offense because of an attendant circumstance unknown to him or beyond his
control
Examples: a pickpocket putting his hand in the victims empty pocket, an abortionist
beginning the surgical procedure on a nonpregnant woman, an impotent male trying to
have nonconsensual sexual intercourse, an assailant shooting into an empty bed where
the intended victim customarily sleeps, or an individual pulling the trigger of an
unloaded gum aimed at a person who is present

In each case, the actor was mistaken regarding some fact relating to the actor, the
victim, and/or the method of commission. The target offense was not consummated
because the actor chose the wrong victim (the pickpocket and abortion cases), the
victim was not present (the empty bed case), the actor was not physically capable of
committing the offense (the impotency case), or inappropriate means were used to
commit the crime (the unloaded gun case).
Had the circumstances been as the actors believed them to be, or hoped to that they
were (e.g. the pocket contained property; the women was pregnant; the victim was in
the bed; the actor was physically capable of having intercourse; the gun was loaded),
the crimes would have been consummated
These crimes are always convictable
Inherent Factual Impossibility
Inherent factual impossibility may be a defense.
Recognized in at least one state
To the extent that it exists, it applies if the method to accomplish the crime was on that
a reasonable person would view as completely inappropriate to the objectives
sought
E.g. Voodoo doctor who actually believed that his malediction would surely bring
death to the person on whom he was invoking it.
Problem is that they are still possibly dangerous even if they are doing something
completely impossible
Pure or True Legal Impossibility
Always a defense
Arises when the law does not proscribe the goal that the defendant sought to achieve.
i.e. When someone believes they are committing a crime, but they are not. Even if you
think there is an offense for throwing away steak, you cannot be guilty of attempting
to commit a fantasy crime.
Cant punish people for crimes that dont exists
Similar, D is not guilty for criminal attempt if, unknown to him, the legislature has
repealed a statue that D believes that he is violating
Idea: We should not punish people no matter how culpable or dangerous they are
for conduct that does not constitute the charged offense at the time of the action.
Therefore it is similarly wrong to convict a person an attempt to violate a law that is
not, in fact, encompassed the Ds conduct
Hybrid Legal Impossibility
This form is punishable in most contexts
If the actors goal is illegal, but commission of the of offense is impossible due to a
factual mistake (and not simply a misunderstanding of the law) regarding the legal
status of some attendant circumstance that constituted an element of the charged
offense.
Courts have recognized a defense of legal impossibility or have state that it would
exists if D
Receives un-stolen property believing that it was stolen
See People v. Jaffe: D bought cloth be believed to be stolen but in fact
had been recovered. Charged with receiving stolen goods
Rule: Not guilty of an attempt with the immediate act in
contemplation of D would not have been a crime (legal impossibility)
o Manipualbe (pick pocket wants whatever in this specific
pocket)
Knowledge is required by statue (but he has belief!! red herring)
Tries to pick the pocket of a stone image of a human

Offers a bribe to a juror who is not a juror

Tries to hunt deer out of season by shooting a stuffed animal
Shoots a corpse believing that it is alive
Shoots at a tree stump believing that it is a human
In a prosecution for distribution of obscene literature to a minor, send
pornography to an adult, believing that she is a minor
In each example of hybrid legal impossibility, D was mistake about a fact: whether the
property had been stolen, whether the person was a juror, whether the victim s were
living human beings, whether the victim was an animal, or whether the victim was a
minor.
*What distinguishes these from factual impossibility, is that these factual mistakes
relate to the legal status of the Ds conduct.
A person is not guilty (and cannot be guilty) of receiving stolen property
with knowledge that it is stolen unless the property is stolen in character.
Likewise, a person cannot bribe a juror unless the person bribed is a juror.
The status of a victim as a human being rather than as a corpse, tree
stump, or statue legally is necessary to commit the crime of mirder or ot
take and carry away the personal property of another
Putting a bullet into a stuffed deer cannot legally constitute the crime of
killing a deer out of season . And, it cannot constitute the crime of distribution
of obscene materials to a minor if ther person to whom the materials are sent
is not a minor
Ultimately hybrid legal impossibility cases may reasonably be characterized as
factual impossibility
One can describe virtually any case of hybrid legal impossibility, which is a
common law defense, as an example of factual impossibility, which is not a
defense.
E.g. If D shoots a corpse, believing that it is a human being, D would describe
this as one of legal impossibility; As a matter of law, shooting a corpse is
not, and never can, constitute murder, because the offense of criminal
homicide, by definition, only applies to the killing of human beings
The Prosecutor, on the other hand, would express the claim in factual
impossibility terms: If the factual circumstances had been as D believed
them to be that the victim had been alive when D shot him he would be
guilty of murder.
See U.S. v. Berrigan: B smuggled letters in and out of prison but warden knew of
activity (and allowed it)
Factual: extraneous circumstances unknown to the actor prevent
consummation of crime
Legal: intended acts, even if completed, could not amount to a crime
Rules:
Motive, desire, and expectation is to perform an act in violation of the
law
There is intention to perform a physical act
There is a performance of the intended physical act
Consequences resulting from the intended act do not amount to a
crime
NOT MPC ideas
Modern Approach: Abolition of the Defense

Putting ones hands near the pocket of a statue, shooting a tree stump, or receiving
un-stolen property are innocuous acts. These acts, by themselves, do not manifest
criminality of any kind, so they should not induce societal apprehension of impending
crime.
What converts these harmless actions into crimes are the actors criminal thoughts.
In Anderson v. Ryan, R purchases a video recorder at a deep discount. Because of its
price, R believed that it has been stolen and therefore, she believed that she was guilty
of the offense of handling stolen property. Later, her house was burglarized. When
the police routinely questioned her about the lost goods, including the video recorder,
R told the officers that she had purchased what she believed at the time was a stolen
recorder. Bases on her admission, R was prosecuted for attempted handling of stolen
property. She was convicted solely based on her guilt feelings expressed to police
officers
?
See People v. Dlugash: D shot G after B had already shot G. D convicted of murder
Rule: Legal or factual impossibility is not a defense if the crime would have
been committed has the attendant circumstances been as D believed them to
be
Even if G was already dead, if D thought he was alive when he shot him
guilty of attempted murder
Does it go here?
See U.S. v. Oviedo: D arrested for elling heroin which in fact was procaine
hydrochloride
Convicting D would eliminate objective element with major evidentiary
significance increases convictions on mistaken inference that believed
good to be narcotics/conduct to be illegal
Rule: for criminal attempt, objective acts performed without any reliance on
the accompanying mens rea, must mark Ds conduct as criminal
Key: Analog to MPCs strongly corroborative requirement
Defense: Abandonment
Pg. 404

Attempt: MPC
Clearly believes that the proper focus of attention is the actors disposition. The MPC provisions are
accordingly targeted with this idea in mind
It defines a criminal attempt in a manner that makes amendable to the corrective process those
persons who have manifested a propensity to engage in dangerous criminal activity. Its treatment of
defenses to criminal attempts (it abolishes the defense of hybrid legal impossibility, but recognizes the
defense of abandonment), and the punishment it imposes for inchoate crimes (in general, it grades an
inchoate crime at the same level as the completed offenses (in general, it grades an inchoate crime at
the same level as the completed offense), are similarly motivated by subjectivist goals
Significant impact on American law in these regard
Criminal Attempt
o Elements of the offense
(1) The purpose to commit the target offense; and
(2) conduct constituting a substantial step toward the commission of the target
offense.
o 5.01(1): A person is guilty of an attempt to commit a crime if, acting with the kind of
culpability otherwise required for commission of the crime (parity), he
(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; or
(c) purposely does or omits to do anything that, under the circumstances as he
believes them to be, is an act or omission constituting a substantial step in a course of
conduct planned to culminate in his commission of the crime.
o ***Questions:
Does the case involve a complete or incomplete attempt?
If the case involves a complete attempt, is the target offense a result crime (e.g.
murder) or a conduct crime (e.g. driving an automobile under the influence of
alcohol)?
o (1)(a) and (1)(b) pertain to completed attempts.
Specifically (1)(a) should be considered when the target offense of the completed
attempt involves conduct
(1)(b) applies to results.
o (1)(c) pertains to incomplete attempts
**This must be read in conjunction with 5.01(2) which elaborates on the meaning of
substantial step
Mens Rea
o In general, a person is not guilty of a criminal attempt unless it was her purpose, i.e. he
conscious object, to engage in the conduct or to cause the result that would constitute the
substantive offense
o Exceptions:
(1)(b): expressly
(1)(c): implicitly
provide that a person is guilty of an attempt to cause a criminal result if she believes
that the result will occur, even if it was not her conscious object to cause it
e.g. If D plants a bomb on an airplane in order to kill V, her husband, and the bomb
fails to go off or is defused, she is guilty of attempted aiding and abetting a murder of
V, because it was Ds conscious object to take Vs life; but she would also be guilty of
attempted murder of the other passengers in the airplane if she believed that they
would die in the bombing.
The common law outcome here is uncertain
Why?
The commentary to 5.01 explains that the prefatory phrase in subsection (1)
acting with the kind of culpability otherwise required for the commission of the
crime means that the mens rea of purpose or belief does not necessarily
encompass the attendant circumstances of the crime.
For attendant circumstance elements, it is sufficient that the actor possessed
the degree required to commit the target offense (parity)
E.g. Id D would be guilty of statutory rape on proof that he was reckless as to
the girls age (the attendant circumstance), then he may be convicted of
attempted statutory rape if he was reckless, but not if he was negligent or
innocent, as to the girls age.
If the material element of the girls age is one of strict liability, i.e. D may be
convicted of statutory rape although he reasonably believed that she was old
enough to consent, then he may also be convicted of attempted statutory rape
although he lacked a culpable mental state as to this attendant circumstance.
The common law rule on this matter is uncertain
Although statutory rape isnt the bet example when it is strict liability
because no mens rea is needed

Actus Reus (what the actor has already done)(parity to circumstances)

o Significant departure from common law, the MPC shifts the focus of attempt law from what
remains to be done i.e., the actors proximity to consummation of the offense, to what the
actor has already done
o In incomplete attempt cases, (1)(c) provides that, to be guilty of an offense, an actor must have
done or omitted to do something that constituted a substantial step in a course of conduct
planned to culminate in his commission of the crime
The premise of the Code is that one who engaged in such purposive conduct is
sufficiently dangerous to justify state intervention, even if she is not yet close to
consummation of the offense broadens attempt liability.
o 5.01(2): provides further content to the imprecise term substantial step
It indicates that conduct is not a substantial step unless it strongly corroborates the Ds
criminal purpose.
This language is meant to reduce the risk of conviction of innocent persons. It
incorporates some aspects of the common law unequivolvavilty test of
attempt, without including its potential stringiness.
Specifically, this section does not require that the Ds conduct by itself
manifest criminality
Rather, the key words in the provision are strongly corroborative: The
actors conduct, considered in light of all the circumstances, must add
significantly to other proof of her criminal intent, such as a confession or
other incriminating evidence
(2) also provides a list of recurrent factual circumstances in which an actors conduct,
if strongly corroborative of her criminal purpose, shall not be held insufficient as a
matter of law.
In other words, if any of the enumerated instance are established, and if the
judge determines that a jury could (not necessarily would) find beyond a
reasonable doubt that the Ds conduct is strongly corroborative of her criminal
purpose, then the case must go to jury
The circumstances include:
Lying in wait; searching for for or following the contemplated victim
of the crime; reconnoitering the contemplated scene of the crime;
unlawful entry into a structure of building in which the crime will be
committed; and possession of the materials to commit the offense, if
they are specially designed for a criminal purpose
This list is used exclusively by the judge, if it goes to jury they are
asked if a substantial test was taken
See US v. Jackson, p. 631 (attempted robbery)
s gathered supplies and two attempted to rob a bank
Substantial step: two reconnoitered, had paraphernalia
Strongly corroborative: could serve no other lawful purpose
See US v. Harper, p. 634 (no attempted robbery)
s parked by bank, in bushes by car had guns, gloves, ammunition (ATM bill
trap)
Act was equivocal, robbery still in the future
Key difference between causing a bill trap and approaching victims with guns
See US v. Joyce, p. 635
flew to purchase cocaine from operative, refused to pay without seeing
drugs
Refusing to show the money and make the purchase not a substantial step
Not an abandonment case

Attempt to Aid (See Complicity)

Suppose that D1 furnishes a gun to X1 so that X1 can kill V1. If X1 attempts to kill
V1, X1 is guilty of attempted murder, and D1 is also guilty of attempted murder, as an
accomplice
Compare: D2 furnishes a gun to X2 so that X2 can kill V2. X2, however does not
attempt to commit the offense. In this example, X2 is not guilty of attempted murder.
D2, in turn, is not guilty of aiding and abetting an attempted murder, since x2
committed no such offense. Is D2 guilty of any offense?
Under common law, not guilty of any offense
Under MPC 5.01(3), a person, may be convicted of a criminal attempt,
although a crime was neither committed nor attempted by another, if:
(1) The purpose of her conduct is to aid another in the commission of
the offense; and
(2) Such assistance would have made her an accomplice in the
commission of the crime under the Codes complicity statue if the
offense had been committed or attempted
Here D2 would be guilty under the Code of attempted murder (conceptually,
she is guilty of attempted aiding and abetting a murder). Although X2 did not
attempt to commit the murder. D2 is guilty because, if X2 had attempted the
crime, D2 would have been an accomplice in the attempt, but furnishing the
gun for the purpose of homicide
Rationale: A person who attempts to aid in the commission of an offense is as
dangerous as one who successfully aids in its commission or attempted
commission. Therefore there should be punishment
Defenses: Impossibility
o Hybrid legal impossibility: 5.01(1) is designed to abolish the defense of hybrid leal
impossibility.
Assume that D1 receives un-stolen property, believing that it was stolen, and is
prosecuted for attempting to receive stolen property. As this case involves a completed
attempt, and the offense charged is a conduct harm, subsection (1)(a) applies
Based on (1)(a), D1 is guilty if she purposely engaged in conduct (receiving
the property) that would constitute a crime if the attendant circumstance
were as she believes them to be.
In this case, the attendant circumstance is the stolenness of the property.
D1 believed hat the property was stole. Had the circumstance been as she
believed it to be, she would have been guilty of the offense of receiving stolen
property. Therefore, she is guilty of attempting to receive stolen property
Suppose that D2 shoots to kill, V unaware that V is already dead. Although his might
constitute hybrid legal impossibility, and a defense at common law, D2 is guilty of
attempted murder under the MPC
Because this involves a completed attempt, and criminal homicide is a result
crime, subsection (1)(b) applies.
Here, D2 performed an act firing a gun at V with the purpose of causing
or with the belief that it [would] cause such result [vs death] without further
conduct of [D2s part]. The fact that V was a corpse rather than a human
being does not exculpate D2
See People v. Dlugash: D shot V and B had already shot V. D convicted of
murder
Rule: Legal or factual impossibility is not a defense if the crime
would have been committed had the attendant circumstances been as
D believed the, to be
o

Even if V was already dead, if D thought he was alive when

he shot him then he is guilty of attempted murder
Suppose that in either these examples, the D is arrested prior to completion of the last
act, but after a substantial step. For example, supposed D1 prepares to receive the
property but is arrested immediately before she takes possession; or suppose that D2
is arrested with the gun aimed at the corpse. Because further actions were intended in
these cases (1)(c) applies
Still, D1 and D2 will be convicted because they performed acts that, under
the circumstances as [they] believed[d] them to be the property was stolen,
V was alive constituted a substantial step in a course of conduct planned to
culminate in.commission of the crime[s]
o **(1)(c): Only in these cases, i.e., in cases of incomplete attempts, does the Code require that
the actors conduct be strongly corroborative of her criminal purpose
the typical impossibility case, however, involves a completed attempt, in which event
subsection (1)(a) or (1)(b) applies
*In the usual impossibility case, therefore, corroboration of the actors criminal
purpose is not required under the MPC
Defense: Pure or True Legal Impossibility
o Although it is not expressly provided, the commentary states that it still exists.
Defense: Renunciation (Abandonment)
o The MPC recognizes an affirmative defense of renunciation of criminal purpose.
o 5.01(4): A person is not guilty of an attempt if:
(1) He abandons his effort to commit the crime or prevents it from being committed;
and
(2) his conduct manifests a complete and voluntary renunciation of his criminal
purpose
o Renunciation is not complete if it is wholly or partially motivated by a decision to postpone
the criminal conduct until a more advantageous time or to transfer the criminal effort to
another but similar objective or victim.
E.g. D is guilty of attempted bank robbery, if she arrives at the bank, but leaves
without committing the offense because she determines that it is too risky to go ahead
until she secures the assistance of an accomplice.
D would also be guilty of an attempt if, after taking a substantial step toward robbing
Bank A, she shifted her efforts to Bank B
If D proceeded to rob bank B, she would be guilty of attempted robbery of
Bank A and of robbery of Bank B.
If she was arrested before completing the Bank B robbery, D would be guilty
of two counts of attempted robbery
o Renunciation is not voluntary if it is partially or wholly motivated by circumstances, not
present or apparent at the inception of the actors course of conduct, that increase the
probability of detection or apprehension or that make more difficult the accomplishment of the
criminal purpose.
An actor is not entitled to the defense if she desists from a theft because she is aware
that she is being observed by a police officer.
Similarly, a person is guilty of attempted rape if he desists due to the victims
resistance.
[case]
Grading
o In significant departure from common law, the code provides that attempts are of the same
grade and degree(subject to the same punishment) as the target offense.
o

Unless, it is a felony is a first degree (ones that carry a max of life). Those are dropped to a
felony of the second degree (10 year max)
5.05(2): Inherently Unlikely attempts
o Grants a trial judge the authority to dismiss a prosecution of an inchoate offense, or to impose
a sentence for a crime of a lower degree than is otherwise allowed, I the actors conduct was
so inherently unlikely to result in a crime that neither he nor his conduct represents a danger to
society justifying his conviction and punishment at ordinary levels
o Eg. Ivy brothers convicted of attempted murder since they used voodoo to try to kill a judge.
Complicity
In general
o Circumstances under which a person whose does not personally commit a proscribed harm
may be held accountable for the conduct of another person with whom he has associated
himself
o Accomplice: A person may be held accountable for the conduct of another person if he
assists the other in committing an offense.
o Co-conspirator: a person who has conspired with another may be held accountable for the
conduct off a co-conspirator who commits a crime in furtherance of there agreement
The mere existence of the conspiracy is sufficient to justify liability for the others
conduct; assistance in commission of the crime is not required
o The common law of complicity used special terms to distinguish between parties to offenses.
o principal party (P): the person who personally commits the physical acts that constitute an
offense
e.g. in a criminal homicide, P is the one whose conduct directly causes the death of V,
e.g. the person who shoots or poisons V
o Accessory party (S): Any person who is not the primary party, but who is associated with
him in commission of the offense
S is usually the person who assists P to commit the offense.
Ss liability for Ps acts is the focus
o Definition of Accessory
S is an accessory of P in the commission of an offense if he intentionally assists P to
engage in the conduct that constitutes the crime, i.e. if S intends to assist in the crime,
and in fact, assists.
The term assists is used here as a general term to encompass many forms of
conduct, including aiding, abetting, encouraging, soliciting, or advising the
commission of the offense
o Criminal Responsibility of an Accomplice: Derivative Liability
An accomplice is not guilty of an independent offense of aiding and abetting;
instead, as the secondary party, he derives his liability from the primary party with
whom he has associated with
The primary partys acts become the secondary parties acts
In general, the accomplice may be convicted of any offense committed by the primary
party with the accomplices intentional assistance
E.g. if S intentionally assists P to rob V, S is liable for the robbery, S is guilty
of attempted robber, as well.
If Ps conduct does not proceed sufficiently far to constitute any offense, S is
guilty of no offense as an accomplice. Since P committed no substantive
crime, there is no liability for S to derive from P
S is usually also liable for any crime committed by P that was a natural and
probable consequence of the criminal activity
o Common law distinction arent really used anymore but the terms are
Principal in the first degree: is the person who, with the requisite mens rea:
o

(1) physically commits the acts that constitute the offense; or

(2) commits the offense by use of an innocent instrumentality of innocent
human agent
the criminal actor or perpetrator of the offense.
It is his conduct from which all secondary parties liability derives
In most cases, the principal in the first degree is the individual who
personally commits the crime. He is the one who strangles V, has
sexual intercourse or takes and carries away the personal property
Principal in the Second Degree:
One who is guilty of an offense by reason of having intentionally assisted in
the commission of the crime in the presence, either actual or constructive, of
the principal in the first degree
A person is constructively present if he is situated in a position to
assist the principal in the first degree during the commission of the
crime e.g. if S serves as a lookout or getaway driver outside a bank
that P robs
Accessory Before the Fact:
Does not differ appreciably from a principal in the second degree, except that
he is not actually or constructively present when the crime is committed.
An accessory before the fact often is the person who solicits, counsels, or
commands (short or coercing) the principal in the first degree to commit the
offense
Accessory After the Fact:
One who, with knowledge of anothers guilt, intentionally assists the felon to
avoid arrest, trial, or conviction.
The line between an accessory after the fact and principal in the second
degree can be factually thin: For purposes of accomplice liability, the
commission of an offense continues- and, therefore, those who aid are
principals in the second degree until all of the facts constituting the crime
have ceases.
E.g. in a bank robbery, the offense is not deemed complete for
complicity purposes until the principal in the first degree takes
possession of anothers property and carries it to a place of temporary
safety.
Therefore, the driver of the getaway car is a principal in the second
degree rather than an accessory after the fact; once the property has
reached a point of temporary safety, however, anyone who
intentionally assists the robber to avoid prosecution is an accessory
after the fact
At common law, an accessory after the fact was derivately liable for the
original felony, although he did not assist in its commission.
Today, nearly all jurisdictions treat accessoryship after the fact as an offense
separate from, and often less serious than, the felony committed by the
principal in the first degree
Plays no role in the preparation or commission, but assisted in escaping
capture or destroying evidence

Actus Reus
o In General
An accomplice is a person, who with the requisite mens rea, assists the primary party
in committing an offense. Generally, there are three forms of assistance
(1) Assistance by physical conduct

o
o

(2) Assistance by psychological influence

(3) Assistance by omission (assuming omitter has a duty to act)
Physical contact
E.g. S may assist P by furnishing him with an instrumentality to commit an offense,
causing the scene in advance, locking the door to keep an assault victim from
escaping, or driving a getaway car from the scene of the crime
Psychological Influence
If S incites, solicits, or encourages P to commit the crime.
The most controversial cases involve assistance by encouragement, because juries and
courts must often speculate as the whether the secondary party had psychologically
influence the primary party but his presence or words
Is mere presence at a crime scene encouragement?
It has been held that an indictment founded simply on the allegation that S
accompanied P to the location of a crime and watched as the offense occurred, was
insufficient to sustain an accomplice prosecution
While presence alone is insufficient to justify a conviction as an accomplice,
presences couples with very little else can justify a finding of accomplice liability
based on psychological encouragement
E.g. encouragement may be found from the expressed assurance of a
bystander that he will not interfere with the perpetrators plans.
Likewise, proof of presence, coupled with a prior agreement to assist, will
support a claim of encouragement, even if such assistance is not rendered
Assistance by Omission
In general, there is accomplice liability for not telling police of a crime before or
during it is occurring, unless the person has a duty to act
Amount of assistance required
A person is not an accomplice unless his conduct (or omission) in fact assists in the
commission of the offense.
Thus, S is not an accomplice in the commission of a robbery if he is present at
the scene of the crime in order to aid P if necessary, but his assistance is not
called upon, and assuming there are no additional facts to support a claim of
assistance by encouragement
See Hicks v. United States: D is seen speaking w/ the shooter and victim prior
to the murder and seen leaving w/ the shooter after the murder; unsure what
exactly was said; judge told the jury that if D intended to say words that did
incite the murder then complicity and if the D was present for purpose of
aiding and abetting then he is guilty even if he didnt do so
Court overturned and said that instructions should have said that D
had to have intended for his words to incite the shooting if they did in
fact do so and that just showing up was not sufficient to be held liable
NOTE: Court did say that would be enough if there was a previous
conspiracy but the D refrained from doing so when he showed up b/c
it turned out not to be necessary, he is equally guilty as if he had
actively participated by words/acts of encouragement
The prior agreement to assist will also justify liability on the basis of
conspiratorial, as distinguished from accomplice, liability, in
jurisdictions that recognize this separate for of complicity
Thus, assistance-by-encouragement serves as a powerful, and yet highly
speculative, basis for allowing accomplice liability
Likewise, S is not an accomplice of P if he performs an act to assist P, but his conduct
is wholly ineffectual.

E.g. S is not an accomplice if he utters words of encouragement to P who fails

to hear them, or if S opens a window to allow P to enter a dwelling
unlawfully, but P (unaware of the open window) enters through a door
Once it is determined that S assisted P, however, the degree of aid or influence
provided is immaterial. Any aid, no matter how trivial, suffices
E.g. S may be deemed ac accomplice of P if, acting with the requite mens rea,
he:
Applauds Ps criminal activities
o See Wilcox v. Jeffrey (1951)
o D owned a magazine and paid for a ticket to a musicians
concert, showed up at the airport when the Musician arrived,
and wrote a positive review; musician violated an
immigration law prohibiting him from working in the UK w/o
a proper visa; No evidence that D applauded during the
performance; D convicted of aiding and abetting the violation
of the alien employment law
Court upheld conviction and said that D did not have
to be the but for cause of the offenseenough that he
was present and encouraged the underlying crime
Holds Ps child while P commits the crime
Prepares food for P to give P sustenance during the planning or
commission of the crime
Provides moral support by asking P to bring home bananas from the
grocery store that P plans to rob
Causation
A secondary party is accountable for the conduct of the primary party even if
his assistance was causally unnecessary to the commission of the offense
That is, S is guilty of an offense as an accomplice even if, but for his
assistance, P would have committed the offense anyway
See State/Attorney General v. Tally, Judge
sent telegram instructing operator to ignore telegram warning Ross
that he was being chased by armed men
Rule: aiding and abetting need not be but-for cause of the
commission of the crime
Key: Did succeed in aiding or abetting? vs. Was the crime
committed?

Mens Rea
o In general
Courts frequently state that a person is an accomplice in the commission of an offense
if he intentionally aids the primary party to commit the offense charged
Dual Intents
(1) The intent to render the conduct that, in fact, assisted the primary party to
commit the offense; and
(2) The intent, by such assistance, that the primary party commit the offense
charged.
Thus, in a robbery prosecution, in which S hands a gun to P, which the latter uses in a
robbery, S would be an accomplice if he intentionally provided the gun to P (the first
intent), and S did this with the intention that P commit the robbery (the second intent)
Can be complicated when recklessness or negligence suffices for liability

More precisely: (1) the intent to assist the primary party to engage in the
conduct that forms the basis of the offense, and (2) the mental state required
for commission of the offense, as provided in the definition of the substantive
crime
Crimes of Recklessness or Negligence: The prosecutor does not have to
prove that the accomplice intended a crime of recklessness to occur: it is
enough that she was reckless in regard to the ensuing harm; as for a crime of
negligence, it is enough to show that the would-be accomplice was negligent
in regard to the ensuring harm.
Almost always, the second mental state may be inferred upon proof of the first,
likewise, the absences of proof of the first mental state will demonstrate the lack of
the second mental state
E.g. if S is a customer in a bank when P enters and announces that he is
robbing it. S, startled, unthinkingly exclaims, Youll never succeed because
the guard is right behind you. Alerted by those words, P disarms the guard
and successfully robs the bank. Based on these facts, S in fact assisted P in the
robbery by provided a warning to P that facilitated him in the commission of
the crime
Nonetheless, S is not an accomplice of P because he lacked both
mental states required of an accomplice. First, he did not intend for
his words to assist P to engage in robbery. At most, he was reckless in
this regard.
Second, and following almost inextricably from the first point, S did
not want the bank robbed, i.e. it was not his objective to have the
bank deprived permanently of its property, the specific intent required
for the offence
Complicated Issue: Feigning Accomplice
Pg. 471
Purpose vs. Knowledge: The meaning of intent
The mens rea of accomplice liability is usually described in terms of intention.
There is considerable debate regarding whether a person may properly be
characterized as an accomplice if he knows that his assistance will aid in a crime, but
lacks the purpose that the crime be committed
E.g. if S rents his house to P, the manager of an illegal gambling enterprise. Is
S an accomplice in Ps illegal activities if he rented the property with
knowledge of his tenants intent activities, or must it be proved that he shared
Ps criminal purpose
Most courts, hold that a person is not an accomplice in the commission of an
offense unless he shared the criminal intent of the principal; there mst be a
community of purpose in the unlawful undertaking.
See State v. Gladstone : You can't be guilty of aiding and abetting where you
have no connection to the principal. Police officer went undercover to buy pot
from D. D said he didn't have any, but directed him to a seller. He drew a map
for him. Police then went to seller and bought pot.
Court found him not guilty of aiding and abetting sale of marijuana
by seller. All he does is give the cop the directions and draw the map.
He didn't have any connection with the seller, or the purpose to for the
seller to complete a sale.

o
o

He wasn't charged with aiding the purchase of pot, only the sale.
Court says there is no complicity, because there was no interaction
btw/ D and the perpetrator. This is bad. If someone is running from a
murderer, and you don't know the murderer, and you trip the victim.
You'll be guilty, even though you didn't know the perpetrator
Liability for Crimes or Recklessness and Negligence
It is hard to intend a negligent act: That would mean that S intended V to die in a
negligent manner, which means that S intended P to cause Vs death. In that case, the
offense should be murder, not negligent homicide
An overwhelming majority of jurisdictions allow accomplice liability in such
circumstances
Conviction of an accomplice in the commission of a crime of recklessness or
negligence is permitted as long as the secondary party has the two mental states from
above
(1) the intent to assist the primary party to engage in the conduct that forms
the basis of the offense; and
(2) the mental state intent, recklessness, or negligence, as the case may be
required for commission of the substantive offense
e.g. S should be treated as an accomplice in the negligent death. First, he intended to
encourage P to engage in the conduct that formed the basis of the offense, i.e. he
intended to encourage P to drive at a high rate of speed on a public road near a school,
which speeding resulted in Vs death.
Second, it is reasonable to conclude that S was at least criminally negligent in relation
to Vs death by encouraging P to drive in this manner
On the other hand, if P while speeding at Ss encouragement, had negligently turned
the wrong way on a one-way street, thereby striking and killing V, S might not be an
accomplice in this negligent homicide. It is quite arguable that the conduct that
formed the basis of this homicide was the act of wrong-way driving , and not the
conduct that S intentionally encouraged, i.e. speeding
Attendant Circumstances
Suppose that S intentionally assists P to have sexual intercourse with V, a non
consenting female. P realizes that V is not consenting (and, therefor, is guilty of rape),
but S negligently believes that V is consenting.
Is S guilty of rape as Ps accomplice?
Unusual: S intended to assist P in the conduct i.e., sexual intercourse, that
constituted the rape; however, S did not intend to assist in a nonconsensual act
of intercourse, i.e., he did not share Ps knowledge of the attendant
circumstance
Issue: whether the intent requirement of accomplice liability applies as well to
attendant circumstances
Rule: As long as the secondary party acts with the purpose of assisting the
principal in the conduct that constitutes the offense and has the level of
culpability required as to the prohibited result, if any, of the offense he
should be deemed an accomplice if his culpability as to the attendant
circumstance would be sufficient to convict him as a principal
The mens rea policies regarding the substantive offense should
control the accomplices situation

E.g. in a jurisdiction in which rape is interpreted to require proof of

recklessness regarding the females lack of consent, the secondary
party should be held responsible for the rape if he acted with at least
that level of culpability as to the attendant circumstances, but not if
his culpability was less than that of recklessness
Or, in a prosecution for the rape of a child, in which the age element
is one of strict liability, a secondary party should be convicted even if
he lacked any culpability as to the victims age
o Natural-and-Probable-Consequences Doctrine
If S is an accomplice in the commission of a crime (crime A), he is also responsible
for every other crime (e.g. crimes B and C) perpetrated by the primary party that was
a natural and probable consequence of crime A, the target offense.
Roy v. United States: not accomplice, not natural and probable consequences
Informant tried to buy handgun from D, D set him up with seller who ended
up robbing informant. D charged as accomplice to armed robbery
Two competing policies
Not hold responsible for things not intended
Hold responsible for natural and probable consequences of a crime
even if they go beyond what was put in motion
Robbery was not natural and probable consequences
The second crimes must be within the normal range of outcomes that may be expected
to occur if nothing unusual has intervened
Questions to ask
Did P commit target crime A?
If yes, was S an accomplice in the commission of that offense?
If yes, did P commit any other crimes?
If yes, were these crimes , although not contemplated or desired by S,
reasonably foreseeable consequences of crime A
Problem: an accomplice may be charged of a crime intent (e.g. kidnapping) although
his culpability regarding its commission may be no greater than that of negligence.
Compared to felony murder: broader (more applicable than FM) but less deep (lower
punishment)
Complicity MPC
Forms of liability
o 2.06(1): Under the MPC, a person is guilty of an offense if he commits it by his own
conduct or by the conduct of another person for which he is legally accountable, or both
a person can be convicted of an offense if he personally commits the crime, or if his
relationship to the person who commits it is one for which he is legally accountable.
o Three forms of accountability
Accountability through an innocent instrumentality
D is legally accountable for the conduct of an innocent or irresponsible
person X if he D: 1 has the mental state sufficient for commission of the
offense; and 2 causes the innocent or irresponsible person to engage in the
criminal conduct
Applies only D causes X to engage in the conduct in question. This section
doe not apply merely because X is insane or otherwise innocent or
irresponsible
D must have done something to manipulate or otherwise use X, so that it may
fairly be said that , but for Ds conduct, X would not have engaged in the
conduct for which D is being held accountable

Absolutely needs to guilty state of mind as well as the encouragement to be

guilty
Misc. Accountability
E.g. helping someone escape prison, helping with suicide
Accomplice accountability
Only counts for the specific crime
The relation of parties in the commission of a specific offense
Nature of an accomplice
S is an accomplice of P in the commission of an offense if, with the requisite mens
rea, he 1. Solicits P to commit the offense; 2 aids, agrees to aid, or attempts to aid P in
the planning or commission of the offense; or 3 has a legal duty to prevent the
commission of the offense, but makes no effort to do so
Accomplice liability by solicitation
If Ss conduct would constitute criminal solicitation, as tht offense if defined in
5.02
Accomplice liability by aiding
Replaces al the common law terms with aids
Soliciting a crime is not a form of aid
The distinction can be significant
Accomplice liability by agreeing to aid
S is an accomplice of P if he agrees to aid P in the planning or commission of
an offense. This requirement is met: e.g. if S tells P that he will help to plan
the commission of the offense, or if he agrees to provide P with an
instrumentality for the commission of the crime, even if S does not fulfill his
promise.
This form of liability is based on aiding rather than soliciting S is not an
accomplice of P merely because he agrees to solicit the commission of an
offense but fails to do so
**Differs from common law
In most cases Ss agreement to aid in the commission of an offense
serves as encouragement to P and, therefore, functions as a basis for
common law accomplice liability
The code does not require proof, of such encouragement however, it
is enough that S manifested his participation in the offence by
agreeing to aid
On the other hand, agreeing to aid is not equivalent to conspiring to
omit an offense. That is, tis is not the Pinkerton doctrine in disguise.
One can conspire to commit an offense (and therefore be guilty f
conspiracy) and yet not agree to aid another person in particular
offense and therefore not be an accomplice of a co-conspirator in the
commission of that crime.
E.g. suppose that S agrees to aid P to rob Bank A. in furtherance of
their conspiracy to rob bank A. however, under the code S is not
guilty of the car theft, as he did not agree to aid (or, for that matter,
solicit, aid, or attempt to id) P in the commission of that offense
Accomplice liability for attempting to aid
**Different than common law
S may be liable as an accomplice of P in the commission of an
offense if he attempts to aid in the planning or commission of the
crime, even if his aid proves ineffectual.

E.g. if S opens a window so that P may enter to commit a felony

inside the building, S is an accomplice in the burglary, even if P enters
by the door.
In such circumstances, S has attempted to aid P, i.e. he has taken a
substantial step in a course intended to culminate in assistance in the
commission of an offense
Relationship between 2.06 (complicity) and 5.01 (criminal attempt)
E.g. S provides P a gun in order to assist p in the commission of a
robbery . If P performs the robbery, S is guilty as an accomplice of P
in its commission
Similarly is P, in the amidst of the robbery, is arrested before he can
complete it, P is guilty of attempted robbery under the Codes attempt
provision. In turn, S would be guilty of attempt under the Codes
complicity statute
However, if P is arrested before he takes a substantial step in a course
of conduct intended to result in the robbery. Under these
circumstances, P is not guilty of attempted robbery. In this case S is
not accountable under the complicity statue, because the person from
whom he would derive his liability committed no crime.
o Nonetheless, S is guilty of criminal attempt by his own
conduct (e.g. not through the doctrine of complicity), by
application of MPC 5.01(3), which provides that a person
who engages in conduct designed the aid in the commission
of an offense that would establish complicit under section
2.06 if the crime were committed by such other persons, is
guilty of an attempt.although the crime is not committed or
attempted by such other person
o Ironic: S is guilty of attempted robbery; P, the primary
participant, is not guilty of attempt
By Omission
Generally one cannot be an accomplice in the commission of an
offense by failing to act. The rule is to the contrary, however, if the
omitter has a duty to prevent the commission of the offense, for
example, if he is a police officer standing by while a crime is
committed
The omitter must have the mental state required of an accomplice e.g.
failing to act with the purpose of promoting or facilitating the
commission of the offense. An omission that is the result of fright or
ignorance, rather than dereliction of duty would not be accomplice
liability
Mental state
2.06(3)(a): a person is an accomplice of he assists with the purpose of
promoting or facilitating the commission of the offense
* conforms with common law precedent e.g.: if S drives P to a liquor
store where P commits a robbery S is guilty of robbery if hi act od
assistance (driving the automobile) was committed with the purpose
of facilitating the robbery; however he is not guilty if he did not know
what P intended to do in the store

Code rejects the argument that complicity liability should

apply to one who knowingly, but not purposely, facilitates the
commission of an offense. If S, a merchant, sells dynamite to
P, with knowledge that P intends to use the explosives to blow
open a safe, S is not an accomplice in the subsequent crime,
unless it was his conscious object to facilitate the commission
of the offense
Liability for crimes of recklessness and negligence
2.06(4): when causing a particular result is an element of a crime, a
person is an accomplice in the commission of the offense if
o he was an accomplice in the conduct that caused the result
and
o he acted with the culpability, if any, regarding the result that
is sufficient for commission of the offense
e.g. S encourages P to speed on a public road near a school. P loses
control of the car and strikes and negligently kills V a child. Under
the code, S and P would be prosecuted for negligent homicide. On
these facts, S may be held accountable for the death caused by P
o Assume P is guilty of negligent homicide
o Ask whether S wan accomplice in the conduct that caused the
result (rather than asking the ordinary question of whether S
was n accomplice in the commission of the charged offense.
The answer is that S was an accomplice in the conduct: he
assisted by encouraging the conduct (speeding) that caused
the result (the death); and he uttered the words of
encouragement with purpose of promoting the conduct (the
speeding). Third, ask whether S acted with the culpability in
regard to the result (the death) that is sufficient for
commission of the offense. In this case, S quite arguably
acted with the requisite culpability (negligence)
This provision has special significance in states that recognize the
common law doctrines of felony- murder and misdemeanormanslaughter. These common law rules allow the primary party in a
homicide to be convicted if the death occurs accidently while he is
committing a felony or misdemeanor. The effect of section 2.06(4) is
to make the accomplice in the conduct (the underlying felony or
misdemeanor) that causes the result strictly liable for the ensuing
death, in the ground that he possessed the level of culpability in
regard to the result that is sufficient for commission of the offense,
i.e. no culpability
Attendant circumstances
S purposely assists P to have sexual intercourse with V, a non
consenting female. P realizes that V is not consenting (and therefore,
is guilty of rape) but S unreasonably believes that V is consenting. Is
S guilty of rape as Ps accomplice?
Code is purposely ambiguous, a court may determine that the
requirement of purpose extends to the attendant circumstances, in
which, cases S is not guilty of the rape
Alternatively the policy of the substantive offense might control i.e. S
would be guilty of the offense if he has the culpable state of mind
regarding the victims non consent that is sufficient to convict the
perpetrator of that offense
o

Natural-and-probable consequences;
*no common law natural and probable consequences doctrine
e.g. suppose that S aids P In the commission of a bank robbery by
furnishing P with the details of the bank securitys system. Later, P
steals an automobile, which he uses as his getaway car in the robbery.
Although S is an accomplice of P in the commission of the robbery
(he aided P with the purpose of promoting that offense) he is not an
accomplice in the commission of the theft: although the theft may
have been a foreseeable consequence of the offense in which he was
an accomplice, he did not purposely aid in the car theft
Liability of the accomplice in relation to the perpetrator
Limits to accomplice liability
2.06(6) states that unless the code expressly provides to the contrary, a person
is not an accomplice in the commission of an offense if any one of three
circumstance exist .
S may not be convicted as an accomplice if he is the victim of the
offense e.g. the parent of a kidnapped child who pats a ransom may
not be convicted as an accomplice in the kidnapping of his own child
S is not an accomplice in the commission of a crime if his conduct is
inevitably incident to the commission of the offense. E.g. a
purchaser of narcotics is not an accomplice in the commission of the
sale or delivery of the controlled substance to himself
Third, the code establishes a defense of abandonment. A person is not
an accomplice In the commission of that crime if he terminates his
participation before the crime is committed, and if he
o 1 neutralizes his assistance
o givens timely warning to the police of the impending offense
or
o in some other manner attempts to prevent the commission of
the offense