Criminal Law

Pfaff
Spring 2018

I. Introduction
A. Overview of the Sources of Criminal Law
1. Statutory Law: Based on legality principle, legislatures make law while courts
interpret it and must adhere to fill the gaps.
o Legislature vs. Courts
 Legislature design statutes while courts construe them.
 The legislature as the most democratically elected institution should
prevail, as criminal reflects moral sentiments of the community; while
courts are appointed, should be subordinate to the representative body.
Codified law as rejection of elitist judiciary, put into most
representational branch of gov.
 The role of courts is limited so to reject elitist judiciary and ensure
constitutionality
o Institutional Actors of Criminal Law:
 Legislative System: enact
 Judiciary System: interpret
 Jury: enforce or nullify
 Prosecutors vs. Lawyers: enforce vs. defense
 Police: arrest
2. Common Law: Common Law still provides offense names, reception statutes and
rationales behind rules.
o Why common law still relevant even though criminal law is predominantly
statutory
 Statutes often written with common-law precepts in mind
 Common-law precepts often guide judges in interpreting ambiguous
parts of statutes
 The US SC often constitutionalizes common law precepts
o Criminal vs. Civil Law
 Criminal law: deals with crimes, i.e. punishable acts, so compensation to
the plaintiff is the major concern
 Civil law: deals with torts, i.e. compensable acts, so punishment of the
defendant is the sole concern
 Even today many acts constitute crimes and also torts at the same time
3. Constitutional Law: Constitutional guarantees in the Bill of Rights directly limit
legislative policy. Under the First Amendment, congress and state legislatures may
not pass any law that restricts freedom of speech, religion or the press. Additionally,
a "right of privacy" is recognized that legislatures may not infringe.
4. Model Penal Code: The non-governmental American Law Institute drafted the Model
Penal Code to provide clarity and uniformity to criminal law.
o Format of Modern Codes: Modern criminal codes are comprised of two
sections:
 A general part containing general provisions
 A special part containing the definitions of specific offenses

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I. Introduction - Structure of Criminal Law & Criminal vs. Civil Law

A. Structure of Criminal Law

1. Elements: Each criminal rule typically does one of three things:
a. Offense: Define what constitutes an offense
i. Objective elements: physical behavior the offense requires
ii. Culpability elements: offender's subjective awareness or attitude toward
that behavior
b. Imputation: Define conditions under which an actor will be held liable even
though the elements are not satisfied
i. Imputing objective elements: e.g. accomplice
ii. Imputing culpability elements: e.g. voluntary intoxication
c. Defense: Define conditions under which an actor will be acquitted even though
the elements are satisfied
i. Criminalization defenses: Defenses refining the offense definition, which
apply to a single offense or a group of offenses
1. Failure-of-Proof defenses: Derives from inability of the state to
prove a required element
2. Offensive-Modification defenses: Modification refines or
qualifies the definition of an offense. (e.g. Abandonment)
ii. General defenses: Defense theoretically apply to all defenses, e.g.
excuses, justifications and non-exculpatory defenses.
1. Justification defenses: Some conducts amounting to an offense is
tolerated because it is justified under the circumstances, e.g. self-
defense
2. Excuse defenses: Actor was in a situation that could not
reasonably have been expected to remain law-abiding, e.g.
insanity, involuntary intoxication, duress
3. Non-exculpatory defenses: e.g. diplomatic immunity, SOL
iii. When criminalization defenses apply, the defendant has committed no
criminal wrong at all; when general defenses apply, the defendant did
recognized harm but bears no liability.
d. Sentencing: if liable and convicted, then sentencing
i. Traditional: liability and sentencing are separate
ii. Modern: structured sentencing, which classifies offenders on the basis of
the severity of the crime committed and on the extent and gravity of their
prior criminal record.
2. Case: Fear, Pain and Bubble Gum
a. Identifying objective elements
b. Paying attention to definitions
c. Using one section to interpret another
d. Noting the role of institutional actors/ constraints

A. Criminal Law vs. Civil Law

1. Overlaps and Similarities: each crime has an analogous tort (victimless crimes?),
since we already have this parallel system of liability for intentional torts, why is
there still criminal laws?
2. Justification of Why Criminal Law
a. Moral Condemnation (Robinson)
i. Blameworthiness:
1. Criminal liability generally reflects moral blameworthiness
deserving condemnation and punishment - that is, it causes people

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I. Introduction - Example of Bubble Gum

to experience some pain or hardship as a penalty for some wrong

they have committed.
2. Civil liability may also lead to hardship or deprivation, it typically
does so for the sake of providing compensation, promoting public
welfare, or some other goal, rather than to make the defendant
experience punishment and its attendant moral censure.
ii. Culpability Requirement:
1. Criminal liability requires that the actor's state of mind should
reflect culpability - a blameworthy attitude or disposition - as to
the offense elements. Generally, the criminal law demands at least
recklessness as to every offense element - an actor must have some
personal awareness of the facts that make the conduct wrongful.
2. Civil liability requires no culpable state of mind. When culpability
is required, commonly only negligence need to be shown.
3. Violations do not require culpability. A violation does not
constitute a crime and conviction of a violation shall not give rise
to any disability or legal disadvantage based on conviction of a
criminal defense.
iii. Burdens:
1. Criminal law has a higher burden of proof - beyond a reasonable
doubt (where punishment is higher, more certainty is required)
b. Instrumentalism (Law and Economics)
i. Intentional harms and externalities:
1. State needs to take collective action to correct negative
externalities that the market can’t solve.
2. There are positive externalities to rehab, deterrence, incapacitation
- stop further crimes
ii. Why centralize in state:
1. Fairness: Ability to allocate resources, especially to poorer areas
2. Private deprivations of liberty: People find it unfair to be locked up
by private individuals
3. Displacement: Crime will move because it is intentional. Some,
but not all, of the crime will be displaced. Centralized response is
necessary because only a central body can feel all the effects of the
movement of crime (But: DC Sniper Conundrum, see next)
c. Social Esteem and Delegated Revenge (Social psychology)
i. Public enforcement exists because of it cares about and can restore self-
esteem for the victim
ii. Social psychology finds that being a victim lowers our social esteem and
having state expend its limited resource on me restores victim's social
esteem
E.g. DC Sniper Conundrum: DC, Maryland, and Virginia fought
over right to try the case. They wanted to prove to their citizens
that they care.
1. Specific Example of Fear, Pain and Bubble Gum Reflecting General Distinctions
a. Conduct types
i. Malum in se: bad in itself, such conduct violates some pre-legal moral or
social norm
ii. Malum prohibitum: bad because prohibited, such conduct is not wrongful
by its nature, but only because the law says it is

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I. Introduction - Example of Bubble Gum

iii. The proliferation of regulatory crimes may be counterproductive, for by

imposing criminal liability in cases lacking moral blameworthiness, the
practice dilutes the condemnatory meaning of criminal liability, thereby
damaging its moral force.
b. Significance of Consent
i. Consent generally provides a complete defense to a civil action.
ii. Consent provides a defense to a criminal charge only if it vitiates the
harm or evil of the offense.
iii. Criminal law generally does not allow a defense to assault (or homicide)
based on the victim's consent to bodily injury. Criminal conduct is
generally seen as a harm against the community. It is the breach of the
society's rules of conduct prohibiting the act that serves to justify
punishment.
c. Justification and Excuse Defenses
i. Justification defense: criminal liability is barred if the actor's conduct is
justified because it avoids a greater societal harm.
ii. Excuse defense: criminal liability is also barred if the surrounding
circumstances or conditions render the person blameless for committing
what would otherwise be an offense (e.g., insanity).
iii. Civil liability typically recognizes neither justification nor excuse
defenses.
d. De Minimis Defense
i. Criminal law addresses only harms of sufficient seriousness.
ii. Civil law may allow liability with nominal damages. The extent of the
harm is important to assessment of the amount of the award, but
generally does not affect liability.
e. Outcomes of the example Fear, Pain and Bubble Gum
i. Ike escapes under de minimis because the resources stolen was
sufficiently minor, and there was insufficient loss of social esteem. But
don't cloud the moral signal with small crimes
ii. Ed: escapes under lesser evils because he did nothing morally wrong as
there is no real victimization, but he still needs to compensate. Also,
minimal loss to the shopkeeper can accumulate to significant loss.
iii. Constin cannot escape for consent, because of unconscionability. There
may also be some externalities of third-party harms and loss of
productivity and medical resources. But there is no social esteem loss
because it's consensual.

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II. Statutory Construction

II. Statutory Construction

A. Canons of Statutory Construction
1. Textual Canons
a. Expressio unius, exclusion alterius: inclusion of one term excludes another
e.g. “No motorcycles, bicycles, or scooters in the park.” = skateboards
are okay
a. Ejusdem generis: a word is known by its friends
e.g. No vehicles such as motorcycles, bicycles, and scooters in the park.”
= no 2-wheel vehicals
1. Substantive Canons
a. The more specific statute controls the general
e.g. Self-defense is a type of lesser evils (but much more restrictive). If
you fail defensive force, you CANNOT turn to lesser evils. Specific
controls the general. THIS IS IMPORTANT
a. Different language implies different meanings, but be careful of Scrivener's
error
1. Legislative history
a. When canons fails, look to legislative history
b. Be careful though - it is not always reliable.
c. And always be sure that courts should interpret law only, not the intents

A. The Legality Principle

1. No Ex Post Facto Laws
a. Basic rule: If a certain act is criminalized on day d, you cannot be convicted if
you committed the act on day d-1 (the day before the act is criminalized)
b. Justifications:
i. Notice - have to be capable of knowing the law, you Cannot be culpable
if the act wasn't wrong when you committed it
ii. Prevention of abuse: don't want to discriminate because of politics, e.g.
vagrancy laws targeted at interracial couples.
c. Highlights two features of criminal law
i. Culpability, not compensation (vs. torts)
ii. Backwards looking (vs. civil commitment, which is forward-looking)
2. No Common Law Crimes
a. Follows directly from no ex post facto laws, this reflects deep historical
commitment: to put the power in the legislatures rather than in the hands of the
judges
b. Why not prospective application
i. Doctrinally impossible for federal courts
1. Common law approach is inherently forward-looking. A new law
must be applied to a case, if the case is gone, then so does the law.
2. Too much time for appeals/decisions. What happens to defendant
in the meantime?
ii. There are still concerns about notice
3. Void for Vagueness
a. Basic idea: Notice must be meaningful. Vagueness fail to give notice and
provide arbitrary enforcement
b. Source: Due Process clause: Not just notice, but meaningful notice
c. Key distinction: vague (unconstitutional) vs. ambiguous (judicial clarifications)
i. Vague: prohibited conduct is not defined

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II. Statutory Construction

E.g. In Morales, the old ordinance is not clear on the meaning of

"apparent purpose", it does not define the prohibited conduct of
"loitering" well. And hence it is vague and unlawful.
i. Ambiguous: defines conduct with specificity yet can have more than one
interpretation
E.g. People v. Nuñez: prisoner injured an officer en route to start
life sentence. He was charged with an offense of "Assault by a
person undergoing a life sentence in prison", what does
"undergoing" mean? Physically in a prison or undergoing a life
sentence in a prison? This is not vague, but ambiguous
a. Precision of codes is best way to avoid judicial discretion
1. Rule of Lenity
a. Basic idea: If the statute is ambiguous, interpret in favor of the defendant.
i. Source is unclear
ii. Expands scope of statute; restraint on discretion
b. Key limitation:
i. Whether statute is ambiguous, or legislature clearly intends liability
ii. When statute is ambiguous, discretion is hydraulic in nature. Debate is
shifted to language of the statute rather than punishment. Judge retains
discretion; that discretion goes from transparent to hidden.
c. Solution: Rule of Fair Import
i. Pragmatic approach: try to figure out what the legislature intended, the
outcome may not change, but rationale is now more transparent.
ii. Hydraulic nature of discretion: Constraining judges' discretion at
sentencing. But this results in an increase of discretion in charging and
plea bargaining decisions made by the prosecutors. Which preserves
sentencing disparity in less visible ways.
E.g. In Mullaney v. Wilbur, the court held that it is the
prosecution's duty to prove the absence of the heat of passion,
while in Patterson v. New York, the defendant was held to have the
burden of prove this. This kind of shift decreases prosecutorial
discretion.
E.g. In the recent case of Patterson Molestation in Arizona, unlike
the NY Penal Law, which emphasizes the purpose of "gratifying
sexual desire", the Arizona statutes only mentioned "sexual
contact" of a child would establish molestation. This is ridiculous
because it means that parents literally commit a felony every time
they bathe a toddler or change a diaper. It is also problematic
because it puts the burden of proving any sexual contact was
innocent on the defendant.
a. IMPORTANT: use rule of lenity and rule of fair import ONLY when the
statutes are unclear
1. Why These Rules?
a. Notice and procedural fairness
i. You have a right to know what conduct is criminal
ii. Same for malum in se (bad in itself) and malum prohibitum (bad because
it is prohibited)
iii. Rules deter bad conducts but promote good conducts
b. Effective deterrence: Clearer the law is, the better able we are to send signal and
deter bad behavior AND encourage good behavior (bc if muddy, people might
avoid beneficial behavior)

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II. Statutory Construction

c. Democratic accountability of the legislature: judges cannot create rules out of

thin air
d. Avoid abuse of discretion
E.g. Famous case (due to vaguness): Papachristou: Vagrancy statute
(now unconstitutional)
 Extremely vague; anyone could be arrested
 Criminalized status (rather than actions)
 Targeted biracial couples
1. Concerns with the Rules
a. Lack of flexibility: Sometimes you cannot convict someone who is clearly
wrong. e.g. Marsh (dead bodies in backyard) - can only prepare for next
situation
b. Excludes normative judgments: there is no way for judges
i. Cost of lost flexibility
ii. Do we want judges making these judgments under pressure? (i.e. making
at the time of the case)
 Tough cases lead to bad law
 Judges are under political pressure

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III. Theories of Punishment

III. Theories of Punishment

Our Consequentialist theories of punishment are to advance a particular social goal (we
want to reduce crime to the EFFICIENT level) - first 3 theories
A. Deterrence: Use the law to prevent crime (general deterrence), by having the law in place
people won’t commit crimes at all, some concerns:
1. Specific Deterrence: once an individual commits a crime how can we structure things
so that he doesn’t commit again - using the law to prevent an individual from
committing crime again?
2. Knowledge of the Law: how will criminals adjust their behavior if they don’t know
changes in the law?
a. Most surveys are taken by American college students or inmates - this does not
accurately represent society
b. There are some categories of people who do know the law
c. Business type ventures (drug gangs) tend to know the law
3. Limits on Punishment: sometimes we could punish the innocent, deterrence does not
care as long as benefit is larger than cost
4. Optimal Deterrence
a. Delay and discounting - people that commit crimes tend to “discount the
future” so they won’t care about increased prison sentences
b. Adapting to environment (long sentences) - we don’t want people to adapt to
the pain of prison
c. Substitution effects - deterring crime A can promote crime B
d. Marginal deterrence - we want to know if something deters based on the
alternatives
e. How do we deter when alcohol and drugs are a major factor when committing
crimes?

B. Incapacitation: locking people up so they can’t commit crimes again, types: incarceration,
license revocation, chemical castration, alcohol locks on cars. Concerns:
1. How long to incarcerate?
a. Discounting and duration: we want the impact of sentences to be strong
b. Age and desistance: MOST people age in and out of crime, most juvenile
offenders are not adult offenders
c. Social development and desistance - getting married and working stop people
from committing crimes - keeping people in jail hinders this
2. Is this effective?
a. Elastic responses: people start to label themselves as “I’m just a criminal” -to
what extent are people arrested replaced by new criminals?
b. Criminogenic effect - exposure to other criminals
c. Policing is more cost efficient than prisons but more money goes into prisons
3. Selective Incapacitation - the Base rate Problem: what base rate do we
use? - rearrested, reconvicted, or readmitted
a. Problems with baserates - there are false-negatives and false-positives
E.g. In a population of 100,000 people there are 100 criminal
reoffenders. We will predict these reoffenders 100% of the time with 0
false-negatives but if we have a 1% false-positive rate we will
misidentify 999 people as reoffenders - so only 100/999=9% are properly
flagged as reoffenders. The small baserate can dwarf the true
positive - we want baserates to solve violent crimes and for violent
crimes the baserate is usually low which causes problems
a. When the baserate is high this isn’t such a problem

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III. Theories of Punishment

A. Rehabilitation
1. Concerns:
a. Is this punishment?: lots of times with rehabilitation the offenders get
education, etc. - is it fair that the offenders get education/scholarships where a
lot of law abiding people do not?
b. Rehabilitation vs. Human Capital Theory: we want criminal law to do things
that are cost effective - our brains depreciate over time so it may not be cost
effective to teach criminals basic life skills when they are older
c. Limits on time served: do we need guilt? How much time is enough? - there
can be a complete disconnect b/w crime and punishment - you can be locked
up for a long time for a small crime and vice versa
2. One method of rehabilitation is restorative justice, we want to help the offender
restore social standing rather than helping them obtain basic life skills - can be done
by putting the victim and offender together to let the offender understand how and
why he hurt someone
B. Just Deserts (Retribution): punishment has an inherent value in itself; not concerned with
punishing for the greater good (they are punishing just to punish)
1. Backwards looking: asks what a person deserves to get based on what they did
(rather than Consequentialist theories that ask what we should do to stop someone
from committing crimes in the future)
2. Wants to protect the morals of actors: if actor changes their mind last minute before
committing a crime and doesn’t do it then we don’t want to punish them
3. Proposed punishment (lex talionis): an eye for an eye, this usually doesn’t work (i.e.
you can’t mug someone that mugs you)
a. Alternative: Proportionality - how we order offenses for punishment (i.e.
punishment for murder is worse than punishment for arson)
 Problem: baselines and fragile intuitions - we have very little idea for
how much punishment crimes should get (should we start from the
smaller crimes and work our way up or start from the worst crimes and
work our way down?)
4. Three Rules
a. Punishing the guilty is just - requires police
b. Not punishing the guilty is unjust - requires police
c. Punishing the innocent is unjust - requires defense attorneys
5. How do we unify deterrence and just deserts?
a. Obedience is tied to respect - the more respect we have for the law, the more
likely we are to follow it
b. Problems with unifying them:
 General survey problems: how questions are presented affect their
answer, we answer questions differently than we act
 Justness is endogenous
 There are a small number of offenders - their social views may be
completely different from society at large

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IV. Culpability - Elements & Mens Rea

IV. Culpability
A. Offense Elements
1. Conduct
 Muscular movement; action is bodily movement = physical action.
 By definition, conduct is at least “knowing”.
2. Result
 Thing criminal changes by his criminal conduct. (e.g. road is obstructed)
 Some verbs can take in both conduct and result, but implicit is that you’re
engaging in conduct that makes result.
3. Circumstance
 Beyond criminal’s control; not changed by criminal act (road = public)

A. Mens Rea Terms - Levels of Culpability

1. Purpose -D has the conscious object to cause the result or to engage in the
specified conduct (e.g. Man firing gun into a crowded room intending to kill
someone)
 Conduct - [P] must intend to engage in conduct
 Result - [P] must intend to cause result
 Circumstance - [K] is aware of the existence of such circumstances or
believes or hopes that they exist
2. Knowledge - is aware that it is practically certain that his conduct will cause
such a result (e.g. Man firing gun into a crowded room knows that they will
probably kill someone)
 Conduct - [K] aware conduct is of the nature
 Result - [K] aware/practically certain that conduct will cause a result
 Circumstance - [K] is aware of a high probability of … [the attendant
circumstance’s] existence, unless he actually believes that it does not exist.
 Element of knowing includes willful blindness - a person acts knowingly with
respect to a material element if he is “aware of a high probability of its
existence”
3. Reckless - consciously disregarding a substantial and unjustifiable risk that the
material element exists or will result from his conduct.
 Conduct - [K] not possible to disregard the fact that you are doing something
(ex. I cannot consciously disregard the fact that my arm is moving)
 Result - [R] consciously disregarding the unjustifiable risk that the material
element exists or will result due to the actor’s conduct
 Circumstance - [R] consciously disregards the circumstantial element that
exists
 Unjustifiable is in place because it protects certain actors (ex. Ambulance
drivers going through a red light)
 A risk is “substantial and unjustifiable” if “considering the nature and
purpose of the actor’s 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 actor’s situation.
 Substantial: not defined: Given nature of harm x probability (10% risk of
death = substantial).
 “Substantial” is subjective: if person believes it to be 50%, but is 10%,
still a substantial risk.
 Recklessness test is not a reasonable person test, it only depends on
what this specific person should have done at that time, no matter what a
reasonable person should have done

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IV. Culpability - Elements & Mens Rea

4. Negligent - unaware of the substantial and unjustifiable risk that the material element
exists or will result from his conduct, but should have been aware because a
reasonable person would have known
Conduct - not possible
 Result - [N] should have been aware of the unjustifiable risk
 Circumstance - [N] should have been aware of the substantial and unjustifiable
risk that the material element exists
 Criminal negligence is not civil negligence: the former is based on intent, and
is a higher bar (needs great deviation from the standard); the latter is based on
conduct, and is a lower bar (even small deviation from the standard)
 “Should be aware of a substantial and unjustifiable risk” and “failure to
perceive risk, considering the nature and purpose of his conduct and
circumstances known to him, involves a gross deviation from the standard of
care that a reasonable person would observe in the actor’s situation.”
 Somewhat individualized bc recognize “considering…his conduct…”
1. Strict Liability - sometimes we hold people responsible even when they had no mens
rea (e.g. statutory rape, drug weight)

A. Concurrence
1. Basic Concurrence: mens rea must exist at the time of the act or at the time of the
element being applied to
 E.g.: “A person commits theft when, with the intent to deprive another of
property, he wrongfully take or withholds such property from an owner
thereof”
Day 1: X takes Y’s sheep temporarily
Day 2: X decides to keep Y’s sheep
Without the inclusion of “withholds” in the statute we couldn’t charge X with
theft, because there is no concurrence if there is only "take"
1. Narrow concurrence - looks at each element separately
Transactional concurrence - looks at what the person was trying to do and takes
 Example: Thabo Meli - D believe victim is dead and throw him over a cliff,
while actually it is the fall that kills the victim
 Under narrow concurrence: Assault [P] + Murder [R]
 Under transactional concurrence: Murder as a whole [P]
1. Bright Line Rules for Concurrence?
a. Arguments for - Jury fairness - jury discretion should be avoided so all offenders
have the same ex ante probabilities (same probabilities going into the court
room independent of race, gender, etc.)
b. Arguments against - sometimes people getting the same outcome is not good (age
considerations), but too much discretionary power could be a slippery slope

A. Objective Elements
1. Issues of Proving Mens Rea
 We have to use objective elements to prove subjective intent
 Many times there is no proof of what the criminal was actually
thinking/intending to do
 Sometimes we cannot identify mens rea because statutes are not written clearly
and we have to fill gaps in them - if a statute has an explicit mens rea attached
to it then we use that but if not we can use the mens rea applied to the clause or

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IV. Culpability - Negligence & S/L

rest of the statute or the default of the particular code (which is usually
recklessness)
2. Classifying Elements
 Robinson: conduct is only the muscular movement
 Conduct is an action or omission and an action is a bodily movement
 Result is the thing that the criminal changes
 Circumstance is the thing that it beyond the criminals control (ex:
defrauding a religious official - religious official is the circumstance)
 So conduct can only be used for purposely and knowingly mens rea b/c if
you are unaware of what you are doing there is no conduct
 E.g. Dealer called and told buyer wrong sense of price. Statute says you are
guilty of fraud when you purposely create false impression as to value.
 Could read entirely as conduct - calling and telling the buyer the wrong
price
 Could read as conduct and result - conduct: calling and talking to buyer,
result: buyer has the wrong sense of price
 Could read as conduct, result, and one circumstance - circumstance: price
 Or two circumstances - wrong and price
 There is no bright line rule for how to classify elements
3. Assigning Mens Rea
 Purpose: Conduct [P] Result [P] Circumstance [K]
 Knowledge: Conduct [K] Result [K] Circumstance [K]
 Recklessness: Conduct [K] Result [R] Circumstance [R]
 Negligence: Conduct [N/A] Result [N] Circumstance [N]
4. Mens Rea are not always clear
 If a statute has an explicit mens rea attached to it then we use that
 If not, we can use the mens rea applied to the clause or rest of the statute
 If no mens rea mentioned at all, we use the default of the particular code
(usually recklessness)

A. Negligence Crimes
1. Problems of Criminal Justification
a. Fairness - we are punishing someone who didn’t know what they were doing
was wrong (we’re punishing them for being absent-minded) BUT the standard
for criminal negligence is higher than the standard for tort
negligence - criminal negligence is gross deviation from the standard of care
b. It is difficult to argue a loss of self-esteem
c. Difficult to prove intentionality - do we get a return from punishing people
being absent-minded?
d. Is there a need to stigmatize? - a lot of times these are one time acts and the
offender doesn’t recidivate
2. Justifications of Punishing Negligence Crime
a. Incapacitation - may be beneficial because it will keep society from having
criminally absentminded people on the street (this has cons - maybe civil
confinement would be better)
b. Rehabilitation -Education v. realism: would education even help? Why waste
resources?
c. Retribution - strongest argument for punishing criminal negligence - punishing
mistakes that are morally wrong. Use gross deviation to try and justify this.
d. Sometimes punishing criminal negligence will have a deterrent effect because
punishing them may make them aware of their negligence in the future

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IV. Culpability - Negligence & S/L

e. Another argument is that criminal negligence is an evidentiary

backdrop - reckless is hard to prove because you need to know the intent of the
actor, sometimes it may not be easy to prove, so a prosecutor will default to
criminal negligence so a criminal doesn’t walk free (this goes against our
notion of punishing without a reasonable doubt)
3. Objective Standard
a. Who is the reasonable person? - Does a person with low intelligence measure
up to a person with regular intelligence or another person of low
intelligence? - there are different policy arguments for these ideas
 If we make the reasonable person too objective this ignores relevant
factors like a person’s intelligence, age, etc. and it is effectively strict
liability for some
 Prosecutors usually want to argue a broader reasonable person
because if your behavior is an outlier compared to the rest of
society then the prosecutor will have an easier time proving
negligence
 If we make the reasonable person too subjective then negligence
completely loses meaning
 Defense will argue for a more narrow reasonable person (if you are
your own reasonable person then by definition you cannot be
negligent because nobody can deviate from himself)
b. Case Study: Williams
 William is sick and treated only with aspirin by his parent, and finally
dies from pneumonia resulting from untreated. His parents are of below
average intelligence and are afraid of child service.
 Prosecutor argument: anybody could tell from the smell of it -- defense:
Williams are of below average IQ -- Counter: that doesn't matter,
recklessness is objective standard

A. Strict Liability Crimes

1. When NO mens rea is necessary; not too common in criminal law (e.g. statutory rape
(age) and felony murder rule
2. Arguments for:
 Negligence per se - makes something strict liability to avoid having to argue
negligence (streamlines legal process which can be good because state funds
are limited)
E.g. Statutory rape if under age 10 - there is no way that if the victim is
under 10 years old that you cannot be negligent
 Leads to greater care - if people know the line is very strict they’ll be very
careful not to cross it (deterrence argument)
1. Arguments against:
 Where is the moral wrong? - Sometimes we are punishing a person who is not
even negligent because they did exactly what a reasonable person would do
 Over-Deterrence - people may be so afraid to act that good things will be
eliminated - this is particularly true with financial transaction - CEO’s may be
so afraid to trade stocks due to insider trading laws that they may not trade at
all (this can be very bad for the market - trading is a good thing)

13
V. Culpability and Mistake [skip]

V. Culpability and Mistake [skip]

A. Mistake and Accident
1. Mistake: act is intentional but intention is non-culpable (e.g. I intended to take an
umbrella but I did not intend to commit a crime because I thought it was mine)
Mistake can provide a justification and negate a certain culpability
requirement - ANY TYPE OF MISTAKE WILL NEGATE PURPOSE/KNOWING
 Mistake = mens rea (SAME THING)
 There are certain mistakes as a MATTER OF LAW that are not accepted
 e.g. I was drunk -- although this negates intentionality (purpose) for
doing a crime we probably will still say you knowingly committed the
crime (if you were sober you might not have even satisfied knowing but
we won’t allow this as an excuse)
1. Accident: act is unintentional, thus also non-culpable

A. Kinds of Mistake
1. Reckless - an actor is aware that something he is doing could be wrong but he does it
anyway because he thinks the risk is not substantial
e.g. Knew there was a chance the gun was loaded
1. Negligent - an actor is unaware of the substantial risk and a reasonable person would
have been aware (lack of recklessness)
e.g. Genuinely thought gun was unloaded
1. Faultless - non-negligent mistake because it wasn’t your fault
e.g. “The Crow” - actor kills someone by shooting a gun on a movie set that
was not supposed to be loaded
1. Mistaken Failure - wanted to do crime but failed; this is still punishable by attempt
law
2. Mistake about the Law - ignorance of the law is NOT an excuse
 Exception: when knowledge of the law is an element of the crime OR when
someone with high authority tells you the crime is okay
e.g. theft occurs when one purposely duplicates copyrighted material
using illegal software - if you did not know software was illegal this
negates mens rea
1. Mistake and Intent
Culpability Requirement Negated By
Purpose Any mistake
Knowingly Any mistake
Reckless Negligent/Faultless mistake
Negligently Faultless/Reasonable mistake
Strict Liability No negation (no mens rea needed)

A. Rape and Mistake

1. Issues
a. Two parties' mental states are considered which makes it difficult to judge
(other crimes mostly focus on one person’s mental state)
b. The victim’s mental state matters whereas in other crimes it does not and sex
becomes a crime when the victim does not consent
c. The lowest accepted level of mens rea for a man tends to be recklessness, but
some argue that we should allow the mens rea of negligence

14
V. Culpability and Mistake [skip]

2. Estrich: No Means No
a. Estrich argues that her tactic would focus more on the man and less on the
victim which would be better.
b. Without focusing on the mens rea of the man we have problems:
i. Strict Liability - a woman can just say she did not consent and then the
man is liable
ii. Unequivocal Resistance - sometimes a woman cannot resist, if we focus
on her resisting only and say mens rea does not matter then there can be
problems
c. Estrich Says we should impose a “no means no” standard b/c all reasonable
men would know the implications of not stopping when a woman says
“no” - we should not tolerate unreasonable mistakes (essentially creating strict
liability)
i. The only way a person could then be negligent would be if you do not
know the rule of “no means no”
ii. The BENEFIT of this standard would be that we do not have to put the
woman on the stand
3. Henderson says “no means no” standard is too limited and ANY manifestation of a
law of consent should permit liability (quasi-strict liability) - he believes that no is
sufficient to show lack of consent but not necessary
a. A woman may be afraid to say “no”
b. ANY manifestation of lack of consent should make a man reckless every time
(after manifestation, no mistake is acceptable)
c. He also says if no manifestation exists then a man is not even negligent
4. Remick: Yes Means Yes
a. Requires an explicit signal to go forward with sex

A. Law and Averages

o Criminal law often turns on the law of averages (such as punishment)
o Dressler finds this idea wrong because he believes we should have faith in human
judgment b/c he believes “it is improper to convict a person on the basis of the law of
averages” rather than on individualized assessment
o HOWEVER every decision we make is based on the law of averages (e.g. running
from the cops is not in itself suspicious but we believe it’s suspicious because a
baseline average person would not do this)
o If actuarial models use math that is done right then they will ALWAYS produce
more just results (bright line rules will be better)

15
VI. Doctrines of Aggravation - In General & FMR

VI. Doctrines of Aggravation

A. Aggravation in General
1. Aggravation:
 Sometimes crimes feel more deserving of punishment than their actual offense
or mens rea implies
 So in some statutes if the crime feels as bad as a similar crime with a higher
mens rea you may have the option of using that crime based on the code
 E.g. MPC says homicide as murder usually needs knowing. However, contains
a provision as well saying - committed recklessly under circumstances
manifesting extreme indifference to the value of human life. <-- This shows
that we allow some reckless homicides to feel like murder
2. Problems with Aggravation (Jury v. Judge v. Prosecutor)
 Sentencing requirements:
 Sometimes the sentencing requirements from one crime to elevated to
another are so drastic that the increased charge may not fit the crime <--
juries are unaware of the sentencing requirements b/c the judge makes
these decisions. So who do we trust with aggravation? Prosecutor, jury,
or judge?
 E.g. Davidson Case Study -involuntary manslaughter required
punishment of 31-34 months whereas 2d degree murders required 136-
154 months, we aggravated her to 2d degree murder due to the “extreme
indifference” provision that allows us to use reckless instead of knowing.
This aggravation made her punishment almost 5x worse.
 Punishment Gradation
 Should we take into account the gradation of punishment when deciding
whether to aggravate?
 Kansas: HAS gradation, classes are 3-5yr, 6-9yr, 8-10yr… Here,
prosecutor and judge decide aggravation or not first, then jury directly
choose a narrow category for sentencing.
 NY: No gradation, classes are 3-15yr & 3-25yr. Thus, jury can still
protect defendant from aggravation by choosing a lower sentencing
given the class by the judge.

A. Felony Murder Rule (FMR): way to aggravate a crime to murder

1. Form of Imputation
a. Impute mens rea.
 E.g., all murder committed during felony is murder in the first degree;
extreme indifference to life is presumed from willingness to engage in
felony.
b. Impute actus reus.
 E.g., any killing by anyone committed during/in furtherance/in course of
felony is murder in the first degree.
 E.g., once you start to commit a crime and someone dies, it’s as if you
committed murder.
2. Problems -- States differ re:
a. General rule
 CA has a narrow scope and says you have to cause the death in order to
be liable for murder in the 1st degree WHEREAS
 CO has a broad scope and says if you are in the midst of committing a
felony and a person (other than a co-felon) is killed by anyone, you are
on the hook for murder

16
VI. Doctrines of Aggravation - In General & FMR

 Colo’s co-felon exception makes life of a criminal worthless

b. Felonies covered
 In order to aggravate, must convict offender of predicate felony.
 But what are predicate felonies - all or only violent? States differ on this,
for example, CA includes train wrecking where Colorado does not. Most
states list what felonies are included in the FMR statute.
c. Temporal scope
 during prep/commission/flight of crime.
d. Vicarious scope
 Any death YOU cause;
 Any death caused by you or co-felon;
 Death of co-felon by someone else?
e. Causal link
 but for causation vs. proximate vs. strict liability
3. Problems -- MPC
a. MPC refuses FMR:
 FMR contradicts the logic of the law: imposes liability for murder based
on culpability for underlying felony without separate proof of any
culpability for the murder.
 FMR uses strict liability to impute required mental state and act on you.
b. Better Option:
Require that D’s conduct in committing the underlying felony creates a
foreseeable risk to human life (only negligent homicide).
a. Effect:
 Number of deaths may INCREASE? Once person knows they’re
associated with murder, will go all out.
 Does it really deter? Do people know what is a felony and what is not?

1. Justifications and Theories of Punishment

a. Cumulative Culpability
 Culpability for felony + killing = culpability for murder.
 Can’t use assault as predicate felony for death if assault led to death.
 If not convicted of predicate felony, can’t get FMR.
b. Casual Theory
 Lacks culpability at time of murder (may just be negligent, but not
extreme indifference), but it is present at the time of starting the felony,
willingness to start felony = willingness to start causal chain, manifests
extreme indifference.
c. Evidentiary Efficiency
 Avoid costly investigative efforts; start with initial presumption and
streamline process in favor of prosecution.
d. Legislative streamlining = catch-all for all felonies.
 FMR, not “robbery-and-murder”, “arson-and-murder”, etc.
e. Deterrence:
 Argument for: may make criminals less likely to do violent crimes or if
they do them again it may cause them to act more carefully
 Argument against: FMR could create a perverse incentive for more
violence
 E.g.: If one person dies in the course of a felony, there is no reason
to be safe after that and the felon may continue to kill people
 Justice Traynor’s Aside

17
VI. Doctrines of Aggravation - Justification

 He basically says that criminals cannot control others' response, so

FMR does not have a deterrent aspect because adding an additional
penalty will not deter an uncontrollable killing
 This is WRONG. Deterrence comes into play in the thought
process of deciding whether or not to commit a crime (it is ex
ante). Justice Traynor is blurring the lines of ex ante and ex post
 By giving the additional penalty we are increasing the negative
outcome of the lottery of committing a crime ex:
 Without FMR: with or without the death of a person you
face the same punishment (say 10 years)
 With FMR: without the death of a person you face 10 years
and with the death of a person you face 20 years -- FMR
increases the lottery
f. Incapacitation:
 allowed b/c it aligns. You put someone in jail who caused a death so this
won’t happen again
 Critique: we could be looking too much at the outcome rather than the
actual felony - are we looking at the right issue?
g. Rehabilitation
 Rehabilitation focuses on the offender WHEREAS FMR is focused on
the imputed act/mens rea so this may not work.
 On the other hand, it could work b/c maybe someone that is so out of
control when committing a crime causing death of others may need
rehabilitation
h. Just Deserts
 may be troublesome b/c we are imputing a culpability/act. The theory of
just deserts may be justified in some statutes (like CA) where you can
only be charged with FMR if you pull the trigger BUT may not be
justified in some statutes (Colo) where there is more vicarious liability
 FMR usually brings a person to 1st degree murder. Does this coincide
with the crime they were committing?
2. Importance of Justification
How to justify charging you for mens rea that you didn’t have?
a. Merger
 Too much merger with FMR = weaken force of aggravation.
 Depending on the theory of FMR, how does it influence Merger?
 Cumulative culpability: want to merge: if add up different culpability
that is greater than the base.
 Causal theory: kind of wants to merge
 Deterrence: opposed to merger; want more crimes to deter from.
a. Vicarious Liability:
 Apply FMR to getaway car driver when bank guard kills co-felon?
 Cumulative culpability: No; nothing to accumulate.
 Causal theory: Yes, part of bank robbery.
 Deterrence: Yes.
a. Severity of Predicate Felony
 Should FMR apply to any felony?
 Cumulative culpability: should be severe felony.
 Causal theory: must be severe; if less severe, less tenuous connection.
 Evidentiary theory: violent felony; need base of presumption.
 Deterrence: Any felony.

18
VII. Doctrines of Mitigation - 3 Doctrines & Theories of Punishment

VII. Doctrines of Mitigation

 Sometimes crimes feel less deserving of punishment than their actual offense or mens rea
implies
 Mitigation is not used for insanity. Insanity has a very narrow scope and it means that you
have no criminal liability whatsoever whereas mitigation brings you down from murder to
manslaughter

A. Three Doctrines of Mitigation

1. Provocation - common law mitigation approach, narrowest (objective, least pro-D)
a. Definition: “If killing happens under the “heat of blood” and before “the blood
can cool,” murder is manslaughter”
b. Limitations:
 Sufficiency - Provocation must be sufficient that a reasonable man would
be provoked (this is an objective standard - there is usually a common
law list and certain provocations are insufficient as a matter of law) - you
also have to be provoked, if a reasonable man would be provoked but
you were not you cannot hurt the provoker
 Temporal Proximity - Provocation decays over time (you should have
calmed down once you’ve had more time to think)
 Provoker Only - can’t hurt someone who didn’t provoke you
c. Reasonableness - How similar are you to a reasonable person in this situation?
Is what you did justifiably understandable? (There is a difference b/w
justifiably understandable and unjustifiably understandable: e.g. even though I
understand why the drug dealer beat up Tom when he didn’t pay him doesn’t
mean it’s justified)
 Still Criminal: even if your behavior is reasonable it is still a crime and
punishable, we just mitigate it. You are not faultless, but you are also not
fully at fault - Question: Why are you still culpable even if you were
reasonable? - we are using more an understandable person
2. Extreme Emotional/Mental Disturbance - MPC mitigation approach, more
generous (subjective, psychological)
a. Basics:
 If EED is not in the statutes of the state it does not exist! - must be
codified
 Murder committed under EED is manslaughter
 “The reasonableness of such explanation … shall be determined from the
viewpoint of a person in the actor’s situation under the circumstances as
he believes them to be”
b. Requirements:
 Defining the Disturbance - “Individualized objective” standard. We are
looking through the perception of the actor - MPC is pushing towards a
more subjective standard
 Although we can argue many subjective points that fall under an
actor’s unique situation there is one situation as a MATTER OF
LAW that will not work - IDIOSYNCRATIC POLITICAL
VIEWS
 Possession: You must have actual disturbance - you must have EED
 Reasonableness applies only to the emotional disturbance NOT the
conduct
c. EED v. Provocation: EED Standard is more generous than Provocation: (you
cannot add things to the code that are not written in it)

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VII. Doctrines of Mitigation - 3 Doctrines & Theories of Punishment

 EED and provocation are mutually exclusive, you can apply only one of
them.
 No banned provocations - there is no list of things that do not count as a
matter of law under the MPC approach (except idiosyncratic political
views)
 Laxer temporal standards - at no point does the code say that at some
point a person is no longer emotionally disturbed (the code may even
allow you to say your disturbance increased over time)
 No target restrictions - no requirement of connection to the victim
3. (Diminished Capacity) - Not really a mitigation approach, it is more a pro-
prosecution mitigation approach because it denies you certain mitigation defenses
(pseudo-mitigator)
a. Not really used anymore, this is a common-law doctrine that closely resembles
an insanity issue - this is an absent element defense. Because of a mental
disease, the defendant does not have the mens rea requirement.
b. List: contained a list of acceptable impairments and if yours is on the list you
are acquitted and if yours is not on the list you are convicted
Minimizes the defenses a defense attorney can make if your disease is
not on the list

A. Mitigation and Theories of Punishment

1. Deterrence
 From a deterrence viewpoint mitigation could be bad because it lets a person
get off for a crime
 Some argue that deterrence should have a higher bar - having longer sentences
may stop provoked people from committing the crimes
 Skeptical due to increase in costs - by raising the bar you would stop some
from committing the crimes but not everyone - is it worth the added cost?
2. Incapacitation
 In situations where mitigating because someone acted in a unique situation and
it was probably a one time offense it makes sense not to incapacitate
 HOWEVER when people just anger easily it may NOT make sense to allow
them to AVOID jail time
3. Just Deserts
 Since a certain stimulus caused you to have a certain response that you didn’t
have control over how does just deserts make sense?
 Often we don’t have control over our stimulus responses - why should some be
less morally culpable than others?

A. Problems -- Criticism of EED (MPC Standard)

1. MPC
 Reasonable person standard is still a normative decision.
 Denies idiosyncratic moral views.
 Leaves all other decisions to jury, Free will vs. determinism
2. Fletcher - says MPC is using a moral dodge by not making a clear standard
 THIS IS WRONG! - By the MPC not saying which inhibitions are and are not
okay it leaves more room for the jury to decide
 MPC/Legislature is putting trust in local factfinders
 Criticism: Juries differ <-- not a good point. Local actors have a chance
to decide which is a good thing because local actors know the reasonable
standards in their communities

20
VII. Doctrines of Mitigation - Criticism & Issues

3. What do people want regarding mitigation? - Research shows that people want some
individualization - results are all over the map but we see that people tend to care
about upbringing, education, IQ and not so much about age
4. Cultural Differences and Wu Case: We can’t just ask what factors are good for the
defendant; we also have to look at what is good for society as a whole. Factors have
ramifications apart from the criminal law system. Ex: If we say that women should be
sentenced less than men this could be seen as patronizing to women.

A. Mitigation Issues
o Should cultural background be a mitigating factor?
 If yes, is the cure worse? Is implementation worse (bc handled by
judges/juries, which would further stereotypes)?
o Should genetics be a mitigating factor?
 Do we trust science?
 Do we trust implementation of science?
o Essentially left to jury re: EED/EMD
 As a matter of law, what types of things do we want to raise / to take into
account? = MORAL question.
 Fletcher: focus on “reasonable person” standard for EEM abdicates our
responsibility to think about moral issues.
 Defer to wisdom of crowd rather than making judges take a stand, make
decision.
 Why are we looking at this as part of substantive crime rather than at
sentencing?
o Why do we mitigate rather than give the judges more flexible room for sentences?
 In England what you were convicted for have a very important aspect on your
sentence so it was important to create this doctrine
 This is also true in modern sentencing provisions - Davidson case - by
increasing her crime from manslaughter to murder her sentence was increased
by 12 years
o Another point: Does specific offense matter? - When you get the same sentence for
both manslaughter and murder who cares? - Does murder have the same stigma as
manslaughter?
o E.g.: Gounagias case study
 First degree murder: “The killing of a human being … is murder in the first
degree when committed … [w]ith a premeditated design to effect the death of
the person killed…”
 Second degree murder: “The killing of a human being … is murder in the
second degree when [c]omitted with the design to effect the death of the person
killed…, but without premeditation”
 What does premeditation mean? - the code does not define premeditation and if
we look at both first and second degree murder statutes (which we
should - always look at statutes in relation to each other) we see that
premeditation is in both.
 Second degree murder statute says “design to effect the death” - requires
some type of planning (premeditation) ß gives an argument for the
defense, any type of purposeful death needs some premeditation

21
VIII. Causation - But-For & Proximate Causes

VIII. Causation
Note: Causation does not make one culpable, it is just one of the pieces of the puzzle (also need
mens rea)
A. But-For Cause: had x not been done, y would not have happened
E.g.: A chases B, B runs across the street and is hit by a bus

A. Proximate Cause: Whether or not the causal connection was “sufficiently” close
1. Proximate cause differs in many courts - it’s an inherently blurry line and allows
more room for discretion (allows us to use our judgment, but there is a lack of
consistency)
 E.g.: from above continued: are A’s parents liable because B would not have
been hit by bus if A’s parents had not had A? - No, we almost will never put
our parents on the hook for our actions (some exceptions as a MOL)
 E.g.: A chases B, B runs for 30 blocks and is hit by bus - is B being hit
sufficiently close even though he ran for 30 blocks?
2. Test of Proximity:
 Foreseeability - it is foreseeable that you would cause this result from your
action. As long as the result isn’t too surprising = proximate cause
 Actuarial approach - how much more likely was the result because of what you
did?
 Sufficiency: Was the act sufficient to cause the result?
3. Intervening Actor - default rule is that an intervenor breaks the causal chain (parents
example)
 intervening cause relieves the original wrongdoer of criminal responsibility
unless the intervention was foreseeable/responsive(dependent).
 If one’s actions helped create the situation, the second person’s act is not
intervening and you can be held causally responsible.
 Influence exception - The intervenor must be acting freely.
 Ex: A girl jumps out the window and kills herself because the alternate
decision was to get beaten by me. I am on the hook for causation for her
jumping out the window because she did not have free will.
 How much free will does an actor need? - Line is unclear. Conflicting
drag racer examples.
 Decision-maker must determine whether the intervening actor’s choice reaches
the point on the continuum of voluntariness that extinguishes the primary
actor’s accountability for the result.
4. Intended Consequences Doctrine
 Even if D's conduct was not sufficient because of others' intervening actions, if
the consequence is as intended by D, then he might be convicted. Others' act
does not override D's intentional wrongdoing -- you got exactly what you
wanted. What right do you have to complain If you are held responsible for the
intended consequence?

A. Harm Principle -- Causation matters if harm matters

1. Objectivist vs. Subjectivist:
a. Objectivist -- Common law approach
 focuses on observable HARM (in accordance with the harm
principle) - sees a difference between the guy who attempts a crime and
succeeds and a guy who attempts a crime and fails and thinks they
should be punished differently

22
VIII. Causation - Harm Principle

 Ex: A man trying to kill someone using voodoo - this is impossible so

should he be convicted of murder?
b. Subjectivist - MPC approach
 focuses on observable INTENT (a person who shoots a guy and kills him
and a guy that shoots a guy and fails at killing him are the same)
2. Arguments about Harm Principle
a. Against:
 Consequentialism - A person who attempts a crime and fails is no less
deserving of punishment as someone succeeding in terms of deterrence,
rehabilitation, and incapacitation. If we don’t punish the same we are
creating a favorable lottery - either you get what you want and you pay
the full price or you fail and pay a lesser price
 Just Deserts - the fault is the INTENT. Why should you not be liable just
because of moral luck?
 Ex: Medical care is better now and we are able to keep people
alive - this leads to declined murder rates. Why should the criminal
be charged with less because the doctor can keep the person alive?
 Deterrence and Incapacitation
 People are still dangerous even if they didn’t complete the crime.
 According to theory: if less harm; punish less = punish less; deter
less esp. bc less harm bc of medical advances.
 Need same harsh punishment regardless of the crime.
b. For:
 Delegated Revenge - We punish in part to restore a part of the victims.
When a criminal fails at a crime a victim does not need as much restoring
 Salience - Actual harm creates more anger and resentment than the
thought of harm. - Psychological view
 Evidentiary Issue - It is hard to infer intent from objective evidence <--
jury only sees objective evidence
 Victims of actual crime feel more harm than victims of intended crimes.
 POLICY QUESTION:
 Should the law take into account how the brain works (overweigh
salient events) or push back and NOT recognize brain misfiring re:
weighing of risks and NOT reinforce salience problem.
 The things we ask the government to protect us against are not
necessarily the biggest harm (e.g. plane crash = more attention =
more regulation vs. cars, which are less salient but a greater threat).
3. Harm Principle Issues
a. More subjectivist BUT there are inconsistencies:
 The MPC says attempted crime = completed crime except for 1st degree
crimes
 Another inconsistency in MPC: Manslaughter and reckless
endangerment probably have the same conduct/intent but carry
completely different sentences - gives prosecutor a lot of discretion
 Accomplice liability
 Failed accomplice to successful crime - liable for crime
 Successful accomplice to failed crime - liable for attempt
 So in many cases you are punished more harshly when you failed,
your liability turns on your partner’s success
b. Reason for inconsistencies

23
VIII. Causation - Harm Principle

the public tends to take an objectivist approach and wants to punish person
who commits crime more harshly than the person who attempts it. 1st degree
crimes make the news - we want to make people happy but the MPC keeps
anything below 1st degree the same
 POLICY QUESTION:
 Bury subjectivity bc people care about objective harm?
 Why does causation matter?
 Causation matters if harm matters.
 Look at theories of punishment - does harm matter or intent?
 What is the evil? What is trying to be deterred?
 Evidence issues:
 More confidant that you intended to commit crime if we can see the
harm.

A. Blockburger Test
o Blockburger Test - you cannot use the same act to constitute a violation of two
distinct statutory provisions. You must prove that one thing is unique to each
conviction (must put in work to get the conviction).
o Ex: Grand theft and horse theft - grand theft requires theft of over $100,000 and
horse theft requires theft of a thoroughbred horse
 Horse is worth 2 million
 You can still convict for both because there are two separate elements - the
$100,000 and the thoroughbred horse
o Ex: Assault and aggravated assault - if you get aggravated assault you’ve
automatically gotten assault. You cannot convict for both.

24
IX. Attempts - Tests of Closeness

IX. Attempts
A. To be liable for Attempt:
How close to completion must you be? - Thinking bad thoughts? Should bullet have
to leave the gun? --> you don’t charge someone with intent, you charge them with the
actual crime
What should your mental state be? - Can you recklessly try and do something?

A. Arguments about Punishing Attempt

o Reasons to punish the same:
 Moral luck - criminals shouldn’t be subject to a “moral lottery”
 Attempted crime has the same bad thoughts = same culpability
 Just as in need of deterrence, incapacitation, rehabilitation
 We want to deter / prevent you ex ante from behavior.
o Reasons to punish less:
 Less objective harm - less evil has taken place
 Marginal deterrence - the shock of doing the crime can deter me from trying it
again
 Less convincing evidence of intent - figuring out subjective intent from
objective evidence

A. Tests of Closeness
1. Proximity Test - Common law approach, asks how close to completing the crime
were you, tends to give the most leeway to criminals
a. Physical Proximity - How physically close were you
b. Dangerous Proximity - How close to actually committing the crime?
c. Indispensable Element - Do you have every necessary piece?
d. Probable Desistance - Are you still likely to quit? Is there room for you to
change your mind?
2. Res Ipsa Loquitur Test - how clear is your intent - “the thing speaks for itself” - does
your objective behavior manifest intent? Conduct reveals intent to commit crime
a. We want the conduct to be unambiguous - but this is difficult because we have
to guess subjective intent from objective facts
3. Substantial Step Test (MPC) - A person is guilty of attempt if he purposely does
anything which is an act constituting a substantial step in a course of conduct planned
to culminate in his commission of the crime
a. This is different from the other approaches because it doesn’t ask how close to
completing the crime you were it asks how far from mere thoughts you are
b. Examples: lying in wait, luring the intended victim, reconnoitering, unlawful
entry to intended location of crime, possession of materials of no lawful
purpose, possession of materials near scene of crime, soliciting an innocent
 Remember you still have to prove mens rea
c. Tends to be a one size fits all for basically all crimes under MPC
d. Concern: evidence. Says if you take a step towards completing a crime, even if
you may not do it, you are guilty.
e. This is different from preventive detention because you still need mens rea - we
can’t just detain minority things like drug addiction, homelessness, etc. - we
need a mens rea elevating component
f. Examples of steps:
 Lying in wait;
 Luring the intending victim;
 Rennonoitering = reconnaissance;

25
IX. Attempts - Issues

 Unlawful entry to intended location of crime (not even at time of crime);

g. Sliding Scales
 More serious the crime, the earlier we should move?
 Allows more error but Sliding Scale to acknowledge error costs we’re
balancing.
 Both narrow and broad: eliminates remote preparatory acts but also
broadens liability by allowing police officers to cite certain behavior as
creating as SS (power to police officers).
B. Mens Rea Elevation
1. Common Law
a. If offense wasn’t committed, court has to prove specific intent; higher bar for
mens rea bc want to make sure not making mistakes = FULL ELEVATION =
purpose/intent for all elements: conduct, circumstance, and result.
 “Elevated” bc offense definition for base crime might just be “knowing”
etc.
b. Unintentionally trying to do something = recklessly tried.
c. Attempt implies intentionality.
d. Moral luck concern.
e. Punishment may be too low - too hard to prove intention, therefore lets people
off from attempt charge.
2. MPC
a. A person is guilty of attempt to commit a crime if, acting with the kind of
culpability otherwise required for commission of the crime, he:
 Purposely engages in conduct which would constitute the crime if the
attendance circumstances were as he believes them to be; OR
a. Purpose as to conduct.
b. IMPOSSIBILITY.
Yes, conduct, but circumstances make it impossible.
1. 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 a result without further conduct on his part; OR
a. Purpose and Knowing as to result.
b. FAILED OFFENSE.
Yes conduct, but miss when firing, shorted wire, etc.
1. Purposely does or omits to do anything which, under the circumstances
as he believes them to be, is an act or omission constituting a substantial
step in a course of conduct planned to culminate in his commission of the
crime.
Purpose as to result.
SUBSTANTIAL STEP.
a. If person is knowing as to conduct, result, circumstances . . .
ATTEMPT Mens Reas - What is elevated?
MPC, wide, Other jur.:
Common Law MPC narrow
broad, drafters’ elevate nothing
As required for
Conduct P (elevated) P (elevated) P
offense
As required for As required for
Result P (elevated) P / Knowing
offense offense
As required for As required for As required for
Circumstance P (elevated)
offense offense offense

26
IX. Attempts - Issues

ATTEMPT MENS REA under MPC

Impossible Failed Attempt Substantial Step
Broad Narrow Broad Narrow Broad Narrow
Conduct Purpose Purpose Knowledge Knowledge Purpose Purpose
Result Purpose Knowledge Knowledge Knowledge Purpose Knowledge
Circumstance -- -- Knowledge Knowledge -- --

A. Issues about Attempt

1. Harm Principle and Attempt
 we are punishing you for something you didn’t do
 Proximity tests are the closest to the harm principle
 Substantial step test is the furthest from the harm principle
2. Robinson & Darley
 People favor dangerous proximity (vs. substantial step).
 People favor less punishment (bc they can see themselves being wrongfully
charged?)
3. Concerns re: results:
 How was punishment framed? Deterrence/protection v. punishment.
 Real results:
 People want to start punishing at different stages in crime; but once
decide the punish, people want to punish the same.
 People disagree about where punishment should be attached.
 But after they agree, they also agree re: amount of punishment.
4. MPC, 3 Situations/Rules: (when something does not have to be elevated - i.e.
circumstance - the mens rea is what the statute for that crime says it has to be)
 Cases of Impossibility - you can be punished for trying to do an impossible
crime
 Mens Rea: purpose for conduct and result [narrow version elevates
conduct only - Utah view]
 “Purposely engages in conduct which would constitutes the crime if the
attendant circumstances were as he believes them to be”
 Frustration - when you’ve done everything you can do but for some reason
you didn’t succeed (ex: shoot and miss/man wearing bulletproof vest)
 Mens Rea: purpose/knowing for the result (you’ve already done conduct)
 “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”
 The danger of conviction of an innocent person, therefore, is
unmitigated.
 Substantial Step - you’ve done something less than the crime
 Mens Rea: purpose for conduct and result [narrow version elevates
conduct only - Utah view]
 “Purposely does or omits to do anything which, under the circumstances
as he believes them to be, is an act or omission constituting a substantial
step in a course of conduct planned to culminate in his commission of the
crime”
 What’s the point of elevation? - To make it harder for the prosecution to punish
attempt crimes)

27
IX. Attempts - Issues

 Some statutes force us to elevate purpose for conduct and result - would make
it harder to get people [remember common law elevated all to
purpose - conduct, circumstance, and result ß makes it incredibly hard to get
people]
 Courts/jurisdictions differ on how to elevate

28
X. Complicity

X. Complicity
A. Imputation of Crime: charge accomplice with crime itself.
Did accomplice intent to facilitate principal’s act that constituted a crime?
o NO --> Done, no charge.
o YES --> Treat accomplice as if he is primary himself, as if he did the crime.
 Mens rea for conduct, result, circumstance?

A. Common Law:
o Had to actually assist the principal
o Aid does not need to be substantial
o Elevates conduct, result, and circumstance all to purpose

A. MPC
1. Basically, a person must do an act with the intent that the principal will do an act and
then you can treat the accomplice as if they are the principal; Principal does not
need to know.
 Solicits another person to commit
 Aids or agrees or attempts to aid such other person in planning or committing it
(elevates conduct only)
2. Inconsistency with objective standard:
 Liability depends on whether principal objectively succeeds.
 Liability is not entirely dependent on actor’s own culpability.
Accomplice Assistance Primary’s crime Outcome
Succeed Succeed Accomplice full liability
Fail Succeed Accomplice full liability
Succeed Fail Accomplice gets Attempt liability
Fail Fail Accomplice gets Attempt liability
1. First assess: Mens rea for assistance.
a. MPC: Accomplice must have purpose for assistance/facilitating the CONDUCT
(e.g. driving drunk), not necessarily the result (e.g. death); not his own conduct
(e.g. handing over the keys).
1. MPC rejects “knowledge” mens rea level for assistance, hence why there
is Facilitation liability.
2. Then assess: Mens rea for resulting crime.
a. Accomplice must have mens rea for
1. Conduct: purpose for principal’s conduct = ELEVATION.
2. Result: mens rea for result same as principal
3. Circumstance: MPC is silent; leaves up for judges.
4. CAN have primary charged with manslaughter (recklessness) but
accomplice charged with murder (purpose) - look at Accomplice in
his own bubble, with his own mens rea.
Mens Rea Accomplice / Assistance Primary’s Crime
Result Intent; purpose. Whatever Accomplice fulfills
Conduct Intent; purpose.
Circumstance

29
X. Complicity

1. You do not have to be a successful accomplice (still treated as an accomplice if crime

is committed) - if crime is unsuccessful you can charge the accomplice with
attempt (which is the same as the full crime except for 1st degree crimes)
 You can be an accomplice after the fact
2. Prosecutes the accomplice alone, not in conjunction with the principal - once
conduct is satisfied (conduct has to be purpose) - DOES NOT ELEVATE RESULT
 Mens rea for result and circumstance are the same mens rea that the actual
offense requires
 By elevating conduct to purpose we cannot punish an accidental accomplice
(they must intend to the conduct)
3. Facilitation: Not all legislature’s like having conduct elevated to purpose so the
solution: Facilitation Crimes - these are stand-alone crimes (“facilitation”)
 Facilitation is a lesser offense because you didn’t intend the conduct but you
knew of it (requires a mens rea less than purpose)
4. Defense: Abandonment: A person can terminate their complicity prior to the
commission of the offense if
 “it wholly deprives it of its effectiveness in the commission of the offense” or
 “gives timely warning to the law enforcement authorities or otherwise makes
proper effort to prevent the commission of the offense”
 ^ Have to do this at your own free will
5. What People Want: people generally want to grade more than the MPC does (people
always want to punish accomplices less than principals)
 Different from Attempt: zeros problem - people want to punish the same at a
certain point (we don’t know where that point is)

30
XI. Conspiracy - Doctrines & Elements

XI. Conspiracy
A. Doctrines of Conspiracy:
1. In general
 Group behavior
 Groups are more dangerous, they engage in riskier acts, they tend to
conform to the group and go along with the group even if they don’t
agree
 Conformity over self-interest b/c of peer pressure; more extreme views.
 Economies of scale makes groups more efficient (purchase power,
division of labor, resources)
 It’s a bad act in and of itself when you know of a crime coming and you
don’t alert police to it (this is a moral wrong)
 Extra moral culpability
 Bad act by omission (knew what others would do but didn’t tell)
2. Super Attempt
 agreement to do a crime + an overt act = Substantial Step of Attempt Liability
 Because have both elements, shows greater willingness to go through with
crime, so more comfortable to move in sooner.
 We technically already have laws in place to punish conspiracy (crime,
accomplice, attempt, etc.)
3. Stand Alone Crime - something you can be charged with as an actual crime
 Stacking: can charge with Conspiracy to commit murder and Murder.
 If crime is completed, can still get for conspiracy.
 More than evidence reason for moving in sooner; agreement and over act is
more harmful!
4. MPC is Confused: Stacking vs. Merging
 Merging: conspiracy merges into the completed crime and treats it as if only
the crime was committed AND MPC says you can only conspire ONE thing at
a time
 Stacking: charging person with both conspiracy and the crime
 Wharton’s Rule: Always merge if offense requires agreement (e.g. drug
smuggling) -- If can’t commit crime without agreement, agreement IS part of
offense. Therefore, by definition, punishment takes into account conspiracy.
B. Conspiracy Elements:
1. Actus Reus
2. Agreement
 Evidence Required
 Doesn’t require something written and signed - can be implicit/indirect.
 Going to be ephemeral - must infer from objective evidence.
 Policy issue: don’t want to restrict conspiracy to narrow area bc
conspiracy is a powerful tool for prosecutors.
 Allow circumstantial evidence that conspirators talked.
 Directness of Agreement.
 Where agreement is necessary / essential to conspiracy, actions =
agreement.
 Circumstantial evidence + implicitly agreement + agree to do same thing.
 Acts coordinated in diffuse way suggested implicit agreement.
 E.g., Interstate (price fix movies $0.25) - to succeed, need cooperation,
therefore implicit agreement to price fix. NO TALKING.
3. Overt Act: in furtherance of the conspiracy by at least 1 member of the
conspiracy

31
XI. Conspiracy - Scope of Conspiracy Liability

 less than the substantial step requirement

 cannot be convicted of conspiracy to commit a crime unless you do an overt act
 Exception: MPC - a felony in the 1st or 2nd degree does not require an
overt act
4. Mens Rea Elements: Must meet underlying mens rea of substantive crime (at least
knowing)
 Courts disagree on Elevation:
 Full Elevation - intent/purpose for entire crime
 Ex: X sells sugar to moonshiner knowing they are making
moonshine
 Not guilty. Don’t intend result, only know result.
 Helps protect market, but harder to convict.
 Excludes some crimes = concern.
 Purpose can be inferred from having a stake in the outcome.
 Non-Elevation - intent/purpose for conduct
 Threat to market? People afraid to engage in conduct.
 Gives prosecutorial discretion to thwart market fear.
 MPC tends to elevate conduct and result -- similar to attempt
 However - many courts allow room to move around and get knowledge
for result
 Inferring purpose for result when it is actually knowing: ex’s: knowledge
of plans can imply purpose; purpose inferred from stake in the outcome;
purpose inferred from significant business
5. Defense: Renunciation from conspiracy
 Must show affirmative steps to disavow or to defeat the objectives of
conspiracy;
 Must show reasonable effort to communicate that w/ co-conspirators OR
 Disclose scheme to law enforcement.

A. Scope of Conspiracy and Liability -- Pinkerton Rule

 Pinkerton Rule - a conspirator is liable for any reasonably-foreseeable crime,
committed by any co-conspirator, in furtherance of the crime
 This is a fact-based inquiry about what is reasonably foreseeable
 What is reasonably foreseeable does not necessarily have to be in furtherance
of the conspiracy
 Must determine what the agreement is - defense wants to narrow this,
prosecution wants to define this broadly
 MPC does NOT accept Pinkerton - a person is not accountable for the
conduct of another solely because he conspired with that person to commit
an offense [defined in complicity statutes]
 Scope of Liability - you do not need to know the exact details of a conspiracy but
you do need to have some idea of the conspiracy (ex. You are enlisted to steal a high
end car with expensive parts à you probably know this is for a chopshop) - we don’t
want to set the bar too high or it becomes impossible to get a conspiracy charge
 Unilateral Agreement - you don’t agree to the exact same thing - just have to
agree to aid in a criminal act
 Bilateral Agreement - you have to agree to the essential nature of the
crime - don’t need to know the exact details still
 Problem: you could never be a conspirator with an undercover cop
 Conspirator but not an accomplice - 2 ways: 1) agree but do not help, 2) do not
need clear substantial step (only overt act)

32
XI. Conspiracy - Types of Conspiracies

 Accomplice but not a conspirator - you help but do not agree to help (much rarer),
ex: Bib acts as a lookout for Muscle but Muscle does not know he is doing this

A. Types of Conspiracies:
 Chain Conspiracy - need to know other people exist (show they know other people
are part of the process) but not their exact identity. Resembles a distribution train. X-
Y-Z-W
 Wheel Conspiracy - independent actors all dealing with one central actor
 Central actor [Hub] - clearly guilty of entire conspiracy
 Others who deal with central actor [Spoke]- hard to prove they are guilty of
the entire conspiracy, more likely they are guilty of each individual smaller
conspiracy
 How to Connect [Rim]- can connect spokes of the wheel by proving that there
is some reason why they must know others are out there (or show that it is
impossible NOT to know that central actor is dealing with other people)
 Wheel and Chain Conspiracy - combination of the two, must show that people on
the chain knew of people on the wheel and vice versa
 Racketeer Influenced and Corrupt Organizations Act (RICO) - (Pinkerton taken to its
fullest extent)
 4 Types of Violations: 1) Using bad money to buy good company, 2) Using
racketeering to exert control over good company, 3) Employee in good company
using racketeering to do job, 4) Conspiring to do 1-3
 Extensive scope - focuses on the whole enterprise and wide vicarious liability
 Gang Laws - differ across states, coordinated actions, realize that a lot of times when we
define a group as a gang we make them stronger not weaker

33
XII. Justification - Lesser Evil

XII. Justification
A. General Concept
1. Justification is an Act-based defense - no liability because act is good (socially
beneficial)
 Not a mitigator, just no liability at all
 A justification is NOT an excuse - the act is still NOT justified but it can be
excused (ex: insane person killing someone is wrong, but no culpability)
B. Lesser Evil
1. Three Components:
 Protected Interest - it will avoid a harm or evil to himself or to another (not
very restrictive)
1. Enumerated or unenumerated rights - very open ended, many things can
be considered rights - not very restrictive at all
 Necessity - 1) temporal and 2) harm
1. Temporal necessity, either:
a. Imminent threat: Danger itself must be immediate, harm is coming
right now
b. Immediately necessary: Need to respond must be immediately- this
is what D would prefer
2. Harm necessity - doing the crime must accomplish something
a. Alternatives - should be no other alternatives
b. Causal justification - what you are doing must accomplish what
you want
3. Area for juries to decide; not a question of fact, but a value decision: is
responding now/at this point, the kind of timing that we, as
representatives of community, think is ok?
 Proportionality - balancing the harms (jury decision)
1. Harmful act must be less harmful than harm avoided.
2. Again, question of community values but:
a. Legislature defines the tradeoffs jury can consider, e.g. what types
of defenses apply / how narrow the conditions under which jury
can consider.
3. Look at whether there are procedures in place:
a. Shows that Legislature has thought about this type of conduct, and
put procedures in place to define what appropriate / where the line
is.
4. Costs
a. Potentially arbitrary application of broad defense.
 Juries MAY invoke in troubling, arbitrary way. BUT is
random arbitrariness bad (NO); only when pattern of
discrimination (nature of victim, etc) that is problematic.
b. Undermines General Deterrence in some settings.
 Highly contextual, situation-specific.
c. Puts power to juries to decide which law is more important.
5. Benefits
a. Limits prosecutorial abuse by allowing those targeted to avoid
punishment.
b. Satisfaction of legal sanction = getting a positive signal from
juries, “we agree with your situation” rather than the ambiguous
signal of just not being charged.

34
XII. Justification - Defensive Force

2. Key Elements:
 You can use lesser evils if nothing more specific applies (specific controls the
general)
 Your belief that the act is necessary CANNOT be reckless or negligent - when
you’re mistaken it’s okay unless you’re recklessly or negligently wrong
 Focus on the ACT not the ACTOR
3. Issues
 Rarely used.
WHY? Is it deterring? Does no one commit the crime where this justification
is allowed? Is it just never prosecuted?
 Often overlaps with duress.
 Other ways to accomplish the same end:
 Jury nullification.
 Lenient sentencing.
 Political pressure on prosecutors.

A. Defensive Force
1. Types:
 Self-defense
 Defense of others
 Defense of property
2. Requirements:
 Trigger - ex: in MPC it is “unlawful force”
 Subjective, NOT OBJECTIVE, views of risk - your beliefs must be
reasonable
 Objective Trigger standard:
 May never be at risk; would a reasonable person in your
situation have reacted with force proportionate in the amount
you did?
 Subjective Trigger standard:
 Actor believes response is necessary; therefore act is not
unreasonable; point of Justification is that society is
recognizing, even encouraging, behavior under certain
conditions.
 Reasonable, but not correct.
 Reasonable person under like circumstances - you cannot be acting
recklessly or negligently
 Sequential Unlawfulness.
 When does the Defensive Force become Aggressive Force?
 Look at each chain separately: is response disproportionate?
 No disqualification re: actor’s recklessness or negligence in bringing
about the situation requiring force (e.g., can be brought about by D).
 Concurrence/duration issues
 Necessity - MPC says “immediately necessary”, whereas lesser evils is just
“necessary” - defensive force is NARROWER than lesser evils
 Immediately causes problems - makes battered wife syndrome more
difficult - killing the person in his sleep is not an immediate threat
 Proportionality - MORE PROPORTIONALITY RESTRICTIONS (saying as
a MOL this is not proportionate) - there are listed restrictions
 More proportionality restrictions when it comes to deadly force
 No deadly force when it comes to protecting property (MPC)

35
XII. Justification - Defensive Force

 Often have to retreat before using deadly force (MPC)

 Proportionality v. autonomy:
 If elevate autonomy (right of person to act on his behalf),
subjugates proportionality.
 Legi will make decision re: balance.

36
XIII. Excuse - Disability & Mistake

XIII. Excuse
A. General
1. Excuses v. Justifications
 Justification: focus on the act, act is inherently acceptable
 Excuses: focus on the actor, act is not acceptable BUT actor lacks sufficient
culpability
 excuses relate to a condition that is peculiar to the actor, such defenses
are generally considered to be non-delegable and, thus, unavailable to an
accomplice.
2. Requirements:
 Need a disability or mistake
 Needs to be an excusing condition

A. Disability
1. Inability to control movement or understand actions
a. Involuntary movement (seizures);
b. Un-comprehended action (hallucinations);
c. Inability to appreciate criminality (insanity);
2. Other factor limiting control: duress
3. Excluded:
a. Voluntary intoxication (what about voluntarily going off meds?).
b. Psychopathy.

A. Mistake
1. Wholly involuntary act.
2. Ignorance of Nature of Act: Voluntary act but you don’t appreciate its implications.
3. Ignorance of Wrongfulness of Act:
a. You do appreciate implications of act but you don’t know it’s criminal.
b. Ignorance of the law, “did not realize it was a crime”.
1. CL - doesn’t allow as defense.
2. N.B.: willful blindness can turn recklessness into knowing.
3. NJ Statute: culpability mitigation = research
a. Belief that act is not a crime is a defense if actor “diligently
pursues all means available . . . and honestly and in good faith
concludes his conduct is not an offense.”
b. Research as a defense:
Concern is people who are skating the line of legality/criminality;
do we reward people who skate the line for doing research or do
we make them bear costs for taking the risk?
a. Relying on official misstatement.
Sources: statutes, judicial decisions, administrative orders; official
statement from officer charged with interpretation (D.A., NOT cop on
beat).
a. Unavailability of law.
Narrowly defined: requires publication, not access = ignorance of the
law.
a. Mistaken justification.
b. Reliance on unlawful military orders.
1. Impairment of control:
Partially voluntary act, partially involuntary (bc of duress) but would otherwise
be fully liable bc knew of nature and consequences

37
XIII. Excuse - Insanity & Theories of Punishment

A. Insanity
1. Insanity - primary excusing argument
 Legal NOT a medical issue
 Question is NOT whether you have the disease (may be prove during
trial), but whether the disease’s implications impair D’s behavior and
affect criminal liability.
 Diagnosis is made by the jury, not a doctor - as a factual matter
 Psychopathy is excluded (not really justified by theories of punishment)
 Insanity defense only matters when you can otherwise convict the actor of the
crime; if mens rea is negated, then insanity defense doesn’t matter.
2. Four Tests: all look at your point of cognition, some look at your control
 McNaughten - says you are completely incapable from knowing right from
wrong, this is the toughest standard to satisfy, used in about 50% of the states
 Cognition - absolute
 Control - not included
 Irresistible Impulse Test (IIT) - either (1) you are completely incapable of
knowing right from wrong OR (2) you are completely incapable of not doing
the act
 Cognition - absolute
 Control - absolute
 Durham/”Product” Test - insanity is a but-for cause, most lenient standard,
only used in New Hampshire
 Cognition - but-for
 Control - but-for
 ALI Test - insanity does NOT need to be the sole cause but it needs to be a
substantial factor - you are having a really hard time fighting these urges, used
in half the states
 ALI no control test
a. Cognition - substantial factor
b. Control - not included
 ALI with control test
a. Cognition - substantial factor
b. Control - substantial factor
3. Restrictions:
 “Guilty by Mentally Ill” (GMBI) - now you can be guilty OR not guilty OR not
guilty for reason of mental defect OR guilty but mentally ill
 Treated the same as a guilty verdict - you face the same punishment and
treatment options (every incoming prisoner gets screened)
 Huge civil implications: D could spend more time incapacitated -- Goes
to pysch ward; when “cured” goes to jail for rest of sentence.
 Discourages juries to find person N.G. by reason of mental defect when
they feel guilty about convicting someone mentally ill. But also distracts
jury to make medical diagnosis?
 Abolition - with the abolition you would be guilty if you had the right mens rea
even if you had no control of your acts, but you can still use insanity to show
you didn’t have the mens rea necessary, used in 4 states

A. Excuses and Theories of Punishment

1. Consequentialist in general.
Not focused on actor; using actor for broader purpose.
 Deterrence - Specific:

38
XIII. Excuse - Insanity & Theories of Punishment

 Excuse is good bc you couldn’t appreciate the harmfulness of your

actions in the first place.
 Deterrence - General:
 Doesn’t work. We should punish all to make individuals more cautious
that their actions might not be excusable.
 Incapacitation and Rehabilitation:
 Insanity as defense does NOT make sense.
 If the source of the excuse continues or is likely to recur, then individual
should be incarcerated, etc.
1. Just Deserts.
 Insanity defense makes sense; punish only those who are culpable.

39