CRIMINAL LAW OUTLINE
POLICY OVERVIEW OF CRIMINAL LAW
Theories of Criminal Law and Punishment:
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Criminal law = series of directions or commands formulated in general terms to tell
people what to do and what not to do
o Criminal law is entirely statutory  no such thing as CL crimes
o Jurisdictions either use CL to interpret statutes or incorporated MPC into statute
o Key difference from civil law = pain central to criminal law (punishment)
Utilitarian theory of punishment: forward looking view of punishment  punishment
justified by its ability to prevent future crimes
o MPC unabashedly utilitarian
o Main goals of punishment:
 General deterrence: public dissuaded from committing crime
 Public knows  decide not to commit crimes  less suffering
 Specific deterrence: criminal learns to associate behavior w/ suffering
 Isolation from society: remove bad people to prevent future harm
 Reformation: focused on improving the offender not deterring them
 Reinforcement of societal norms: show what society considers wrong to
cultivate social norms and values
o Criticisms of utilitarian approach:
 Punishes people to deter society  unfair to scapegoat one person to deter
 Punish the guilty but not morally blameworthy to deter society
Retributive theory of punishment: backward looking view of punishment  punishment
justified b/c D’s actions were morally wrong and deserve punishment
o Morally wrong actions create an imbalance in the universe which must be made
right by the suffering of the offender
o Criticism of retributive approach = vengeance as opposed to justice
Sentencing: proportionate to the moral wrong committed
o Sentencing guidelines offer leeway  Consider:
 Crime’s gravity
 Details about the offender (Du where the clerk shot the AA girl)
o Cruel and unusual punishment concerns: punishment needs to be proportionate
 Utilitarian: proportionate to likelihood of re-offense, likelihood of general
deterrence; amount of actual harm done; need to reinforce social norms
 Retributive: proportionate to the harm caused
Statutory Interpretation:
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Starting place for every crime is the state criminal statute  inflexible and predictable
How to interpret statutory language:
o Identify legislative intent at time of drafting
 What did key terms mean when it was drafted?
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o Use the clear and unambiguous meanings  Do not rewrite what is obvious
o Sources of terminology  Turn to CL (Black’s Dictionary)
 If legislature wanted to change CL, they needed to be explicit
o Policy implications  What did legislature hope to accomplish? Other laws?
o Rule of lenity  interpretations should favor D over the State
 MPC does away w/ rule of lenity
 CL allows rule of lenity in rare circumstances (last resort)
Criminal laws can fail for vagueness if uninterpretable (again, not very common)
o Cannot be so overly broad as to provide little guidance
o Cannot criminalize clearly legal behaviors  First Amendment!
o Cannot encourage arbitrary or discriminatory enforcement (CA homeless laws)
o CAN be valid if lawyers just disagree over the correct interpretation
Parts of the criminal code:
o General part: does not specify any crime but sets out generally applicable terms
o Specific part: lays out the elements of a given crime
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CONSTITUENT PARTS OF A CRIME
Actus Reas: Voluntary Act
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All crimes require voluntary action  mainly physical w/ small mental element (volition)
o MPC: D not guilty of an offense unless his liability is based off conduct which
includes a voluntary act or an omission to perform an act of which he was capable
o CL: Every crime presupposes a willed movement or omission of a possible legally
required action
What does not qualify as a voluntary action:
o Movements caused by outside forces (picked up by the wind or carried)
 Doesn’t include movements w/ gun to the head (different defense)
o Movements caused by reflexes (tased and fell on someone)
 Doesn’t include “hitting as an ager reflex” or grabbing while falling
o Movements made while sleeping (complex behaviors like sexual assaults)
 Doesn’t include rolling over on a baby while passed out (voluntary action
was consuming the alcohol or putting the baby in bed)
o Movements made reflexively while intoxicated  not fully immune though
o Movements made in an automatic state attributable to mental illness
 Majority view: negates voluntariness  no crime
 Minority view: doesn’t negate voluntariness but triggers insanity defense
 Still committed the act  can mandate treatment
Different types of crimes:
o Conduct: required element = engaged in type of conduct
 Ex: Drunk driving requires operating a motor vehicle
o Result: require D, acting w/ certain mental state, produce result
 Ex: Vehicular DUI homicide requires D kills a person
o Attendant: conditions which must be present
 Ex: intoxication required for DUI
Common mistakes about voluntary acts:
o DOES NOT need to be morally blameworthy act
o DOES NOT include any voluntary act  ones laid out in the statute
o DOES NOT need to be most recent act  driving w/ seizure = driving not seizing
o DOES NOT always need addressing  jury usually not instructed unless raised
Actus Reas: Omissions:
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Omissions do not stand in the place of a voluntary act UNLESS there is a duty to act
o Moral duty is not the same as legal duty
 Guy who saw friend assault child and didn’t call 911 was innocent
o Requirements unique to omissions (in addition to mens rea & causation):
 Knowledge (or imputed knowledge) of facts triggering the duty
 Physical ability to act w/o putting oneself in peril
MPC: The failure to act must be: 1) expressly laid out in the statute or 2) a duty to
perform the omitted act is otherwise imposed by law
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CL: When the statute defining the offense doesn’t impose liability for omissions, the
failure to act is not liable unless the defendant was otherwise under a legal duty to act.
Where to look for whether there is a duty:
o Statute provision  Is it written into law? (i.e. rendering aid in accident)
o General provisions of the statute  Did legislature define it?
o CL  Not a CL crime b/c crime already exists (just looking at liability)
 CL sources of duty to act giving rise to criminal behavior:
 Statutory creation of such relationship
 Status relationship: parent-child; husband-wife; master-seaman
o Does not include house guests-host
 Contractual relationship
 Voluntary assumption of care & made the situation worse
o Not the case when withdrawing life support
 Creation of risk (i.e. stabbing someone and not calling 911)
Mens Rea: Assigning Mental Statuses:
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Most important principle: no such thing as culpability for the whole crime
o Break it down: conduct element, attendant-circumstance, and result element
 Some hybrids: among in question; social harm
o Assign culpable mental state to each  may vary
o See if mental state is meant in regards to each at the correct time
CL definition of malice: actual intent to cause the particular harm committed OR
recklessness as to whether such harm would occur  not a different harm/wickedness
Mens Rea: Intentionally, Purposefully, Knowingly, Recklessly, and Negligently
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Purposefully: attempt to remove the word intentionally
o MPC: If the element involves the nature of his conduct/result, it his conscious
object to engage on the conduct of that nature/cause its result OR if the element
involves attendant circumstances, he is aware its existence or hope it exists
o CL (majority): conscious objective to engage in conduct of that nature
o CL (minority): conscious objective to engage in conduct of that nature OR cause
the result described in the material element
 Smashes purposefully and knowingly together into intentionally CL def.
o Use ordinary presumption one intends natural/probable consequences of actions
o Transferred intent if:
 Intends to injure A but injures B
 Intends to cause more serious harm than what actually happened
 Intends to injure A’s property but injures B’s property
 DOES NOT INCLUDE trying to injure A but hurting B’s property
Knowingly: If element involves the nature of his conduct or the attendant circumstances,
he is aware that his conduct is of that nature or such circumstances exist; or with respect
to a result if he is aware that it practically certain that his conduct will cause such a result
o Can look at preconscious awareness AND more than likelihood of occurrence
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o MPC Doctrine of Willful blindness: no escaping statute by willfully shielding
yourself
o CL Doctrine of willful blindness: D must subjectively believe there’s a high
probability the fact exists AND D must take deliberate steps to avoid learning of
the fact
Recklessly: Social utility of conduct is less than probability that harm will occur (or
attendant circumstances exist) and gravity of potential harm (assessed by D)
o MPC: default culpable mentality if statute does not specify
o Consider the following factors:
 Was the risk substantial and unjustifiable? [Hand formula]
 Was D’s conscious disregard of the risk blameworthy? [Gross deviation
from the standard of conduct that a law-abiding person would observe in
the actor’s situation]
 D can be genuinely convinced of something & still know of a risk
 Can look at preconscious awareness
Negligently: Social utility of conduct is less than probability that harm occurs (or
attendant circumstance exist) + gravity of potential harm (assessed by reasonable person)
o CL: default culpable mentality if statute does not specify
o Consider the following factors:
 Was the risk substantial and unjustified? [Hand formula]
 Was D’s failure to perceive the risk blameworthy [gross deviation from
standard of care]
 Does not matter what D knew  based on reasonable person
 Conduct elements cannot be criminally negligent
Specific vs. general intent crimes:
o MPC: abolished the difference between the two
o CL: presumption towards general intent
 General intent crime: offense merely requires intent to engage in
proscribed conduct (i.e. drunk driving)
 Specific intent crime: 1) intend to bring around social harm statute
intended to protect against OR 2) intends to commit some further act
Mens Rea: Strict Criminal Liability
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Presumption against strict criminal liability  presumption of scienter b/c:
o Punishment should be proportional to what D hoped to achieve (absolute liability)
o Hard for government to prove mental blameworthiness (culpability per say)
MPC: material element [not jurisdictional] + not a violation [small fine]
o Absolute prohibition on strict liability offenses  must find mental status
 Presume the mental status of recklessness
CL: material element + criminalizing element
o Strict liability allowed if not criminalizing element; public welfare offense (not
serious penalty); clear indication statute intended to create it
 Presumed mental status of negligence
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Mens Rea: Mistakes
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Mistake of fact = failure of proof defense  don’t use it (usually just strict liability)
o MPC: mistake of fact is a defense when it negativizes a mental state
 Ex: can’t knowingly kill a cop if he is undercover as a homeless person
 Lesser legal wrong doctrine: D thinks he commits A (child porn sale) but
committed B (child porn sale to child)  can be sentenced according to A
o CL: mistake of fact is a defense when it negates a required element of the crime
 Ex: can’t sexually assault someone you believe consented
Mistake of law = failure of proof defense  don’t use it if at all possible
o Traditionally, CL didn’t require knowledge of the law b/c crimes were considered
malum in se (fundamentally immoral)  different w/ malum prohibitum
o MPC: defense when it negativizes a mental state or statute provides for it
o CL: mistake of law is not a defense unless:
 Lambert: passive violation of statute + no intuitive basis + singles out
individuals on the basis of a status (very limited)
 Cheek: some laws require knowledge of law’s existence (income tax law)
o Entrapment by estoppel: D relies on advice incorrectly given by government
 Statute; judicial decision; administrative order; statement of a public
official charged w/ interpreting the law
Causation:
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Cause in fact: conduct is the cause of a result when, if not for the conduct, the rest either
(1) would not have occurred at all or (2) would not have occurred as soon
o Use but-for test  even if it is straw that broke the camel’s back (old lady rape)
o Acceleration: is a cause-in-fact of the death if it hastens termination of life
o Contribution is usually sufficient for instead-of (not in federal courts) if:
 Not a de minimis contribution  decent sized contribution
 Causal preemption: in motion that would be sufficient but a preempting
cause intervenes w/ same outcome so the first never reaches fruition
 Causal overdetermination: numerous actions which are all sufficient on
their own  every one gave V enough poison to kill her
Proximate cause: relationship btw risk that made the conduct wrong & how it played out
o Foreseeability test considers: IMPERFECT
 Probability ex ante of the casual sequence that connects conduct to result
 Aggregation of casual sequences into general types
 Normative question: Should D have foreseen this outcome?
o MPC test: horribly convoluted (higher threshold for negligence) and rejected
o LeFave test: dependent (caused by D) create proximate cause vs. independent
(conduct of a 3rd party) is unforeseeable and therefore not proximate cause
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o Dissipation of risk test: Where V has come to rest in a position of apparent safety,
the court will follow it no longer  becomes too remote for D
o “Free, deliberate, and informed” test: 3rd party’s actions not D’s fault
HOMICIDE
Homicide Generally:
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Principle of legality requires homicides be sorted by degree in advance  Johnson asks
about first degree murder, first question is “where?”
MPC: created a new crime (first degree murder) using some CL requirements (murder
committed in commission of rape, arson, assault, robbery, burglary, or felonious escape)
CL: murder required malice aforethought (often used when law doesn’t define):
o Intentional murder (purposeful/knowing) killing w/o adequate provocation
o Homicide committed with intent to cause serious bodily harm
o Depraved heart homicide
o Felony murder
CL: manslaughter
o Intentional homicide committed in the heat of passion on adequate provocation
(“voluntary manslaughter”)
o Involuntary manslaughter: ordinary reckless or negligent homicide
o Misdemeanor manslaughter: equivalent of felony murder rule
Premeditated and Intentional Killings:
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Compared to lying in wait to kill or poisoning a well  serious offense w/ forethought
CL: intentional murder is any “willful, deliberate, and premeditated killing” (1st degree)
o Schrader: requires only that killing be intentional (bad definition)
o Guthrie: requires killing be done after a period of time for prior consideration
 Even a few seconds would suffice
o Morrin: Requires (1) enough time for a “second look” and (2) “a thought process
undisturbed by hot blood”  BEST ONE b/c shows consequence/magnitude
Does not apply when abusing child (unless statute)  assume intention is to beat
Heat of Passion Killings:
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Historical defense  moves homicide to manslaughter based on D’s emotional status
o Affirmative defense: D needs to prove the case
o Traditional basis for heat of passion defenses:
 Adultery (used to be illegal)
 Mutual combat
 Assault or battery
 Words (depending on the jurisdiction some allow it, ban it, mixed)
CL Heat of passion homicide elements (Girouard case):
o Subjective: D subjectively feels extreme emotional disturbance
 CL categories, as a matter of law, only ones permitted for jury
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o Causal: sudden provocation  passion  killing [not mad abt something else]
o Objective: serious enough to trigger a reasonable person + recent enough a
reasonable person would not have cooled off
 Might have provoked a reasonable person never reasonable to kill
 Reasonable person is not particularlized (same frailties of mind)
MPC Extreme emotional disturbance elements (Cassasa)
o Subjective: D subjectively feels an extreme emotional disturbance
 Want jury to determine on a case-by-case basis  rarely followed
o Causal: no specific and immediate event needs to enflame the passions
o Objective: not necessarily tied to an external event + doesn’t need to be sudden
 Reasonable person shares some but not all of D’s mental frailties
Depraved Heart Killing:
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For once, MPC and CL agree! Usually this is second degree murder
Elements of a depraved heart killing:
o Objective risk: high probability D’s action will result in death
 Facts as known to the defendant  MPC what he believed AND knew
 Does not need to be 1/100 or 1/1000 for there to be a high risk
 Look at risk of death not grave bodily injury
o Subjective knowledge of the risk: D’s preconscious awareness is enough
o Base antisocial motive for engaging in behavior  no value to society
 Weigh the value to society w/ risks
 Examples: throwing rocks from overpasses, shooting into houses
o Other elements some states consider:
 Risk of killing specific person vs. risk of death overall
 Insensitivity to the interests of others vs. momentary lapse of judgment
 Has the state made a statute? (rock dropping on in IL)
Reckless and Negligent Homicide:
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MPC definitions:
o Manslaughter (1) Criminal homicide constitutes manslaughter when: (a) it is
committed recklessly, or (b) would otherwise be murder except for EED.
 Manslaughter is a felony of the second degree
o Negligent Homicide (1) Criminal homicide constitutes negligent homicide when it
is committed negligently
CL definitions:
o Criminally negligent homicide: substantial and unjustifiable risk + gross deviation
from standard of care considering:
 Learned Hand formula for unjustifiable risk  insensitive to others?
 Assess what is known to D (but use reasonable person standard)
 Do not account for intelligence, mental capacity, or experience
 Account for emergencies and social harm  should they be condemned?
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o Reckless homicide: substantial and unjustifiable risk + gross deviation from
standard of care + D’s subjective knowledge of risk considering
 D needs to know of risk’s existence (preconscious), not its magnitude
State statutes create reckless/negligence per say statutes (ex: drag racing = reckless hom.)
Felony Murder:
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MPC: homicide in robbery, rape, arson, assault, burglary, kidnapping, or felonious escape
o Dislike felony murder b/c no mental element w/ regards to death
 Presumption commission of enumerated crimes = depraved heart
o Absolute liability crime BUT need a mental status associated w/ initial felony
CL: homicide during commission of a felony was traditionally 1st degree murder
o Some states define which felonies count; others require interpretation
 Predicate felony must be inherently dangerous accounting for:
 Statutory approach: murder statute identifies predicate felonies
 Majority non-statutory approach: fact finder considers the facts of
the case in deciding if felony is inherently dangerous (CA or KC)
o Weapon? Time of day? Property crime v. personal crime?
 Minority non-statutory approach: considers statutory elements in
the abstract in deciding if felony is inherently dangerous
o Not an absolute liability crime b/c not the criminalizing element
Possible policy rationales for the felony murder rules:
o One form of culpability is as good as another
o Rule deters killings that occur during the perpetration of felonies
o Rule deters participation in felonies
o Rule conclusively presumes culpability with respect to death
Limitations to the felony murder rules:
o Predicate felony must be inherently dangerous
o Independent felony rule: unlawful action needs an independent felonious purpose
other than injuring the person ultimately killed
 Felonies cannot count towards felony murder if:
 Integral part of the homicide itself (assaulted s/o too badly)
 Purpose of the felonies is the same (assault the same person)
 Felony is assistive in nature (burn the house to hide the body)
 Policy reasons for this approach:
 Legislative intent: preserve domain for how legislature divides
murder  assaultive felonies = 1st degree murder, then it destroy
voluntary manslaughter
 Deterrence rational: be careful when committing other crimes
 Dual culpability rational: identify cases that involve a distinct
antisocial motive  something more than negligence
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o Res gestae: includes facts of the transaction and circumstances surrounding it,
matters immediately antecedent to and having a direct causal connection w/ it, as
well as acts immediately following it to form part of the occurrence
 Stops once the Ds successfully flee from the cops
o Relationship between V and killer  3rd party involvement:
 Agency requirement: no liability if innocent party kills (Sophopone)
 Proximate cause: outcome foreseeable, doesn’t matter if it was 3rd party
JUSTIFICATIONS AND DEFENSES
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Difference between justification & defense:
o Justification: under specific circumstances, the harm committed is outweighed by
the need to avoid even greater harm or further a societal interest (negates blame)
 Necessary and proportionate
o Defenses: admits wrongfulness, but D not responsible for deeds (excuses blame)
Self-Defense Justification:
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SD requires triggering condition + necessity + proportionality + non-aggressor status
Necessity: right of SD begins and ends w/ necessity  imminence + duty to retreat
o Imminence: threat must be upon D
 CL: no time gap AND threat of future force is imminent
 MPC: “immediately necessary” on the “present occasion” (excludes vague
threats of general harm but allows for SD if particularized current harms
o Duty to retreat requirements: varies by type of force
 Not duty to retreat from nondeadly use of force even if retreat is easy
 CL majority rule for deadly force: no duty to retreat
 CL minority rule for deadly force: duty to retreat before using deadly force
if D knows/reasonably should know he can retreat
 Castle doctrine: D has no duty to retreat from his home if attacked
for no fault of his own
 MPC rule for deadly force: duty to retreat if D subjectively knows of an
avenue of retreat + knows he can retreat safely
 Castle doctrine: D has no duty to retreat from his home ever OR to
retreat from his workplace unless he/a coworker is the aggressor
Proportionality: cannot use force exceeding threat at hand
o CL: deadly force permitted only in response to threat of deadly force/serious harm
 Would cover all the situations covered by MPC
o MPC: deadly force permitted only in response to threat of death, serious bodily
harm, kidnapping, or forced sexual intercourse
SD is not a justification if D provoked the initial attack
o CL: affirmative unlawful act reasonably calculated to produce fight nullifies right
of homicidal SD
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Regain right to SD by effectively communicating withdrawal from
conflict + making good faith effort to withdraw
o MPC: use of force in SD only justifiable when D believes such force is
immediately necessary to protect against unlawful force
 Initial aggressor = not facing unlawful force (facing SD)
 Other party’s unproportionate response = D regains right to SD
Triggering condition assessed by an objective, reasonable person standard
o D who uses deadly force cannot have provoked the attack:
 CL: right to deadly SD only available to those free from fault who did not
deliberately place himself in a position where he has reason to believe his
presence would cause trouble
 If D provoked incident, he fully forfeits right to use deadly SD
 MPC: use of deadly SD not justified if D, w/ purpose of causing death or
serious bodily harm, provoked force against himself in the encounter
 Can be charged w/ reckless or negligence crimes
o D can use deadly SD w/ objectively reasonable but incorrect belief it is needed
 CL: reasonable belief will provide a full defense if honestly entertained +
objectively reasonable otherwise:
 Majority: forfeit full defense  guilty of murder
 Minority: subjective belief reduces sentence  manslaughter
 MPC: subjectively held belief is sufficient unless it is negligent/reckless
 Otherwise liable for reckless/negligence crimes
Necessity Justification:
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Elements of the necessity defense (same in CL/MPC):
o Act must be done to prevent a significant evil
o There must be no adequate alternative
o Harm must not be disproportionate (greater) than harm avoided (weigh them)
 Factual weighing = reasonable person based on what D knows at the time
 Value weighing = objective standard
Usually triggered by natural events but not exclusively
If belief crime is necessary is unreasonable:
o CL: D forfeits full defense
o MPC: if D’s mistaken belief is reckless or negligent, D may be liable for crimes
w/ reckless/negligent mental status
Necessity defense is limited if D causes the situation to begin w/:
o CL: D usually forfeits full defense  can trace back to find “causing” event
o MPC: actor who culpably causes his defense is usually liable in proportion to his
culpability in causing his defense  trace back to find negligence/recklessness
Necessity is frowned upon when it involves killing another person (Dudley)
o CL: not allowed b/c all lives are equal (Dudley should have committed suicide)
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o MPC: sometimes permissible  take all lives as equal then look numerical
preponderance of lives saved vs. lives taken
Duress Justification:
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Only applies to manmade situations  natural situations = necessity
o Different b/c no social utility (committing a crime) BUT circumstances justify
CL elements: Actor coerced by threat of death/serious bodily harm that is reasonably well
grounded and immediate, when actor has no reasonable opportunity to escape and is not
at fault for exposing himself to coercion.
o Reckless or negligent conduct = complete forfeiture
o Duress is not a justification for homicide BUT
 May be invoked as a defense to the predicate felony for felony murder
 May be invoked to evaluate risky behavior for depraved heart murder
MPC elements: actor coerced by force and threat of force and a person of reasonable
firmness in his situation would have been unable to resist
o Does not consider subjective fear of threat  just reasonable person
o Reckless = complete forfeiture; negligence = prosecuted for negligence crimes
o Duress is a defense to any crime, including murder
Intoxication Defense:
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Many states have abolished intoxication defense  jury will hear about D’s weird,
intoxicated behavior BUT won’t be taken into account w/ mens rea (Weaver LSD case)
A failure of proof defense; it exculpates to the degree that it negates the mens rea for the
charged offense. Very limited usage
CL vol. intoxication: failure of proof def. to negate mental status in specific intent crimes
o REMINDER a crime is a specific intent crime if aimed to bring about social harm
that is the statute’s target or done to commit a further act (types 1 and 2)
 Type 1: first-degree murder, first-degree arson (occupied structure),
larceny
 Type 2: Burglary, aggravated kidnapping, possession of drugs with intent
to deliver
o Not defense for general intent crimes (intent to engage in proscribed conduct)
 Compromise to allow conviction of lesser crime  not innocent
MPC vol. intoxication: defense if it negates an element of the crime (mental culpability)
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o Purposefully and knowingly = excusable (alien example)
o Recklessly = not excusable if D would have known risks when sober
o Negligence = not excusable b/c reasonable person is sober
Involuntary intoxication: very rare BUT a complete defense if:
o D lacks capacity to appreciate act’s criminality OR
o D lacks capacity to conform conduct to requirements of the law
Insanity Defense:
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SCOTUS: states need allowance for insanity (mitigate sentencing OR negate mens rea)
CL tests for insanity:
o M’Naughton Test (most common): defense if at the time of crime, D, as a result
of mental disease or defect, was either unable to understand nature/quality of his
actions or was unable to understand what he was doing was wrong
 No definition of mental disease/defect  not antisocial personality
 Nature/quality: woman strangles husband thinking she is squeezing lemon
 Unable to understand: lacks full capacity (debates legal vs. moral wrong)
o Irresistible Impulse Test: defense if D has volitional impairment caused by mental
disease/defect  cannot be punished if physically unable to control actions
o Durham Product Test (just NH): defense if conduct was a product of mental
disease/defect  lost favor b/c too broad (Ds got off easily)
MPC test for insanity: D not responsible for criminal conduct if, at time of commission d,
b/c of mental disease/defect, lacks substantial capacity to (1) appreciate criminality
(wrongfulness) of conduct or (2) conform conduct to requirement of law
o Appreciate = lower bar than know  emotional/cognitive/volitional deficits
o Substantial capacity = D can retain some capacity and still have a defense
Diminished Capacity
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Mens rea variant: refers to use of psychiatric evidence to negate required mens rea
o Useful b/c no pre-trial notice; prosecution doesn’t get a psychiatrist; D doesn’t
bear burden to prove defense; found “not guilty” w/o “by reason of insanity”
o Jurisdictions differ on admissibility (not based on CL/MPC divide) b/c:
 Pro: government needs to prove mental status  just contrary D evidence
 Con: contradicts legislative intent  created insanity defense for a reason
 Federal courts: used for specific intent crimes, not general intent crimes
Partial responsibility variant: refers to use of mental disease/defect to short of legal
insanity as an affirmative defense to reduce severity of crime (insanity’s little brother)
o CL: doesn’t recognize in any capacity  heat of passion = reasonable person
o MPC: allows evidence at sentencing phase of capital trials AND for EED
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ATTEMPT LIABILITY
Mens Rea for Attempt Liability:
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CL: D commits an attempt when, w/ intent to commit a specific offense, he does an act
constituting a substantial step towards offense’s commission
o Conduct/result elements require purposeful intent EVEN if lower mental element
 Gentry: D has to (1) intend to engage in conduct and (2) to bring about
prescribed result, if any
 Bruce: construe an attempt of any offense even if offense only requires
recklessness or negligence (needs to intend to bring about result)
 Intent is not knowledge death could occur/intent to cause grave
bodily injury/knowledge highly likely to occur
o Attendant circumstances: depends on the statute
o Most jurisdictions don’t recognize attempted felony murder  Johnson does
MPC divides attempt mens rea into 2 categories:
o Completed: actor performs last act in a series of acts meant to culminate in
commission of offense, but act doesn’t succeed (i.e. shoot and miss)
 Requires intent to bring about action OR belief action will cause result
o Incomplete: actor takes step towards commission of crime but stops or is stopped
before taking last step (i.e. trips & falls before handing husband poisoned wine)
 Requires intent to bring about action
o Conduct element requires purposeful state; result element requires intended state
 Attendant circumstances depend on statute  can work for strict liability
Actus Reas for Attempt Liability:
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Satisfied if D takes last step  harder if D has not completed that last step [this unit]
o Preparation is not a useful term/frame of reference, so use tests
CL: different tests based on jurisdiction
o Dangerous proximity test: focuses how close to completion D was
 Elements [jurisdictions differ on whether viewed objectively/subjectively]
 Present intent to accomplish task w/o delay
 D is close in time/space to crime occurring
 Proximity + actor’s intent give rise to danger of success
 Degree of proximity increases w/ severity of crime
 Policy goals: intervene to stop in time; clear manifestation of intent
o Probable desistance test: focuses on how likely a reasonable person would desist
 Mens rea = subjective part; actus reas = objective part (don’t consider D)
 Policy goals: assessing D’s commitment to conduct (chance to back out)
o Res ipsa test: D’s conduct must unequivocally manifest specific criminal purpose
 Asses actions, not statements made before/during/after events
 Policy goals: D’s actions must be unambiguous
MPC (substantial steps test) is a new, extremely popular test features:
o Focus on what D has done, not what D has left to do
o Actual dangerousness of D’s conduct is not considered
o Acts = strongly corroborative of criminal purpose but NOT unequivocal
o Ignores whether D is likely to desist
Attempt Defenses:
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Abandonment: D turns back from crime he initiated
o CL: most commonly rejects abandonment defense if D has gone so far as to
engage in requisite acts w/ criminal intent
o MPC: affirmative defense if D abandons his efforts to commit crime under
circumstances manifesting complete & voluntary renunciation
 Voluntary: renunciation is not voluntary if motivated, in whole or in part,
by circumstances not present/apparent at inception of actor’s that:
 Increases probability of detection
 Makes it more difficult to accomplish crime
 DOES NOT INCLUDE moral awakening (allowed)
 Completeness is never contested
Impossibility: D couldn’t have completed crime b/c he had circumstances wrong
o Arises out of statutory ambiguity  not same as mistake of fact
 Pure legal mistake: D has law wrong  not a defense (Cheeks)
 Pure factual mistake: D thinks gun is broken but shoots  not defense
 Hybrid mistake: D’s mistake of fact goes to existence of attendant circ.
o CL for hybrid mistakes: usually no defense  look at what D believed to be true
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o MPC for hybrid mistakes: clearly written  no defense if it would be an attempt
if what D believes to be true was true
ACCOMPLICE LIABILITY
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Accomplice liability for aiding/abetting crime before/during commission
o Receive same charge/sentence as principle
o Assistance after is a different crime  accessory after the fact
Elements of accomplice liability:
o D provides aid or encouragement (actus reas) +
o Someone commits the crime (actus reas) +
o Intent to aid or encourage (mens rea) +
o Intent to bring about commission of the crime (mens rea)
Mens Rea and Accomplice Liability:
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Covers intent to aid/encourage AND intent to bring about commission of the crime
o Intent to encourage: must intend to bring about crime which occurs  if D offers
to help A shoplift BUT A commits robbery, D isn’t an accomplice
o CL: participate in something to bring about the end/make criminal act successful
 90% of jurisdictions require “purposeful” mental status (Learned Hand)
 10% of jurisdictions allow “knowingly” status for serious crimes (Posner)
o MPC: act w/ purpose of promoting commission of offense
Knowledge raises two different questions:
o Is knowledge of another’s criminal activity sufficient to satisfy the 2nd element?
o Is knowledge of another’s criminal activity sufficient as an evidentiary matter to
justify an inference D satisfied second element  Yes if:
 Purveyor of goods has acquired stake in venture
 No legitimate uses of goods/services exist
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 Volume of illegal business disproportionate to legitimate business
 Crime is very serious (unclear?)
Assigning liability for recklessness/negligence if:
o CL natural and probable consequence doctrine  very severe:
 Intents to bring about the target offense, and
 Principal’s secondary offense is foreseeable consequence of target offense
o MPC: liability for crime of negligence or recklessness if he acts w/
 Intent to bring about principal’s conduct, and
 Negligence or reckless w/ respect to result
Actus Reas and Accomplice Liability
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Basic requirement for actus reas = provides aid/encouragement + crime is committed
o CL: aiding, soliciting/encouraging, or agreeing to aid
o MPC: aiding, soliciting/encouraging, agreeing to aid, or attempting to aid
 Helping to plan or commission a crime
Specific examples of what is/is not actua reas for accomplice liability:
o Yes, if agreeing to serve as a look out or plan an alibi (beforehand)
o Yes, if promising not to tell their family
o Yes, if mere presence encourages commission of crime (needs an audience)
o Yes, if having a legal duty to provide assistance, D omits to seek help
o No, if merely present
o No, if silently vowing to assist w/ commission if they do nothing to encourage
Enough to prove contribution for causality NOT but-for causality using following tests:
o “Liability for actions which affect principle, encouraging him to take a course of
action he might not have necessarily taken otherwise”
o “Be shown to have put him at a decreased disadvantage, to have deprived him of a
single chance at life”
o Accomplice must “somehow cause or contribute to actions of principle”
Nexus between attempts and accomplice liability (attempt as its own offense):
o Slam dunk case that someone can be guilty of being an accomplice to an attempt
BUT someone needs to actually attempt a crime for accomplice liability
o CL: not allowed if no one attempts crime (some CL states statutorily abridge this)
 Not guilty as accomplice if D renders aid to w/ intent to promote or
facilitate an offense, but other person neither attempts/commits crimes
 Genoa: cop solicits $ to help buy coke  not guilty b/c no drugs out there
o MPC: allowed if D aids another to commit a crime although crime not committed
 Subjective approach: enough D thinks they are helping aid the crime
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