CRIMINAL LAW OUTLINE
I. BASIC DEFINITION ® ACT + MENTAL STATE + ATTENDANT CIRCUMSTANCES + RESULT = CRIME – DEFENSES
II. ACTUS REUS - a voluntary act, omissions do not usually count.
A. VOLUNTARY ACT
COMMON LAW
Requires a voluntary and a social harm. An act is
voluntary if D willed the action or if she was sufficiently
free that she could be blamed for her conduct. The
social harm is the wrong caused by D's voluntary act.
MPC
No person may be convicted of a crime in the
absence of conduct that includes of which he is
physically capable
DIFFERENCES
B. EXCEPTIONS
1. OMISSIONS
COMMON LAW
Duty to act if in a special status relationship, or commission by omission (D’s
omission of duty serves as legal substitute for voluntary act, such as in
accomplice liability).
MPC
Liability based on law defining the
offense, or duty to act is otherwise
imposed by law.
Kibbe v. Henderson: fed. court overturns state app, guys who left drunk naked
guy without glasses on highway are guilty of another car running him over
DIFFERENCES
MPC is generally the
same as CL.
E.g.: statutory duty; status
relationships; contractual
duty of care; voluntary
assumption of care so
can’t stop aid; one creates
a risk of harm to another.
2. INVOLUNTARY ACT
COMMON LAW
Can negate the action or serve as an affirmative
defense. Done in a state of unconsciousness
MPC
Involuntary acts: reflex, convulsion, movements
during sleep, movements under or the result of
hypnosis, and unconscious movements.
DIFFERENCES
MPC extends CL such that acts done
under hypnosis and in states of
unconsciousness are "no action."
III. MENS REA - A mental state is required for most crimes.
Strict liability and public welfare offences are the exception. To prove an offense, the
prosecution must prove mens rea as to every element of the offense.
A. TYPES
COMMON LAW
Intentionally (deliberate/willfully) – to consciously
cause the result or when one is virtually certain that the
object will occur as a result of D's conduct.
Transferred intent: punched someone else– same intent.
Recklessness – A heightened criminal negligence or
conscious disregard of a substantial and unjustifiable
MPC
Purpose - conscious object with conduct &
results. Must be aware of the existence or
believe or hope that such circumstances do exist
Knowledge – Conscience awareness that results
are practically certain to occur
Recklessness - Conscious disregard of a
DIFFERENCES
MPC splits intentionally into purpose
and knowledge
MPC clear distinction between
negligence and recklessness - not on
the degree of risk involved but on D's
knowledge of the risk.
risk.
Negligence – Objective fault D should have been aware
that his conduct created a substantial and unjustifiable
risk that the social harm would result.
Maliciously - when one intentionally or grossly
reckless causes prohibited social harm.
Implied v. Express malice/aforethought
- Implied: conscious disregard for danger/lack of
concern for life
- Express: intentionally kills without
justification (defense), excuse (insanity), or
mitigating circumstances
(passion/provocation).
Premeditated: Some courts say no time is too short to
scheme murder; most say appreciable time to reflect
meaningfully. (Guthrie)
substantial and unjustifiable risk; a gross
deviation from a law-abiding person’s conduct
in the actor’s situation
Negligence – Should have been aware of a
substantial and unjustifiable risk; the disregard
is one that a reasonable person would have in
his situation.
Rule of thumb:
Purpose = desire for a certain outcome
Knowledge = indifference to a certain outcome
MPC provides that when it is not clear
which element a mens rea applies to,
apply it to all elements of the offense
Where the statute is silent on Mens
Rea, recklessness is required.
CL: legislative intent;
placement/grammar of mens rea in
statute
MPC
For a crime requiring a mens rea of:
Purpose - D must be aware of the existence of
such circumstances (attendant), or believes or is
aware they exist
DIFFERENCES
Willful Blindness
MPC - if one deliberately avoids
knowledge because of the belief that
knowing would be bad, then D satisfies
mens rea of knowledge. Requires high
probability
CL - Only have to be aware of
probable existence of element
B. ATTENDANT CIRCUMSTANCES
COMMON LAW
Knowledge - Aware that his conduct is of that
nature or that such circumstances exist: only
requires high probability of existence.
Reckless: Conscience disregard of substantial
and unjustified risk
Negligence - Should be aware of substantial or
unjustified risk
C. SPECIFIC INTENT/GENERAL INTENT
COMMON LAW
Applies to mens rea. Defined by the crime.
MPC
MPC does not distinguish between general and
specific intent.
General Intent – volitional doing of a prohibited act.
Only require intent to commit the act (not the result)
constituting the crime. Can infer all mens rea from
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DIFFERENCES
This is exclusively a CL issue.
General intent – D desired to commit
an actus reus
Special intent – D desired to bring
observing the conduct.
about something further
Specific Intent – intent to do some further act or cause
some additional consequence beyond that which must
have been committed or cause in order to complete the
crime (result). Acts in addition to general intent. Proof
of specific intent is required, but it may be
circumstantial.
An alternative definition:
Specific - intent to do conduct and a
further intent.
General - intent to do the conduct.
To negate specific intent, a mistake must be honest.
To negate a general intent, the mistake must be honest
and reasonable.
D. STRICT LIABILITY - WHERE THERE IS NO MENTAL STATE REQUIRED FOR AN OFFENSE
COMMON LAW
Public welfare and traditional crimes. Created by
statute.
MPC
Under MPC, SL crimes don’t really exist;
generally restricted to violations and are
punishable by fines, not incarceration.
Exception for statutory rape.
DIFFERENCES
MPC is generally the same as CL. No
mistake of fact defense.
E.g.: statutory rape, traffic offenses,
selling alcohol to minors; amount of
narcotics
NO INTENT NEEDED vs. CL general
IV. RESULT
A. CAUSE IN FACT - Causation is the link between act and social harm; only required for result crimes; each element BRD.
COMMON LAW
Conduct satisfies the but-for test. Actual cause exists
when the result that constitutes the criminal offense
would not have occurred when it did but for D's
voluntary act (or omission)
- Substantial factor test (e.g.: accelerating result
despite disease, multiple contributing killers)
MPC
MPC only requires actual causation and uses
the same but-for test as CL.
Cause in fact: Would social harm have occurred
when it did, “but for” the person’s voluntary
conduct/omission?
DIFFERENCES
MPC only requires actual causation.
MPC
MPC handles proximate causation within the
mens rea as to results. Whether the result was
too distant or accidental in occurrence to have a
just bearing on D's liability or on the gravity of
the offense. Only but-for cause.
DIFFERENCES
MPC–proximate causation is handled
within mens rea. It’s a jury question.
B. PROXIMATE CAUSE
COMMON LAW
Must be both actual and proximate cause.
Forseeability Test
To determine proximate cause, one must determine
whether the actor was the direct cause and whether
there were any intervening actors or intervening causes
(coincidences) that sever the causal chain back to D
No intervening causes unless the cause is foreseeable or
If the result deviates too far from what is
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Purp/Know: Causation not established
if result was not what was intended,
unless:
1. P just a different person
de minimus. Objective.
Intervening Acts - Intervening acts can sufficiently
break the chain of causation; after D’s voluntary
act/omission happens:
Dependent intervening acts: occur where the
intervening actor acts because of a condition brought
upon by the D’s prior conduct. However, if the
dependent intervening actor was grossly negligent, this
is sufficient to break the chain of causation.
Voluntary Intervening Act: occur where the
intervening actor acts voluntarily. Intentional acts
always break the chain of causation; reckless acts are
sometimes sufficient (depending on court).
Intended consequences doctrine
foreseeable, then one will be exculpated for
purpose and knowledge crimes. If not, then D
will be convicted even if there is an intervening
actor.
For risk crimes, the result must have been
foreseeable in order to convict.
(Transferred Intent)
2. Injury less than intended
Reck/Neg: Causation not established if
result not within risk the actor was or
should have been aware of, unless:
1. P just a different person
(Transferred Intent)
2. Injury less than risked
Exceptions to foreseeability:
Take the Victim as you find him Condition unforeseeable, but D still
liable
Transferred intent - Result
unforeseeable but D still liable
Voluntary intervening act - Result
foreseeable but D not held liable.
C. COMPLICITY
1. ACCOMPLICE - An accomplice is one who intentionally assists another person to engage in conduct that constitutes the offense.
COMMON LAW
MPC
DIFFERENCES
Derivative liability:
Subjectivist view: no complete crime; only
NY Penal: requires corroboration of
Actus reus, mens rea and principal’s completion of the purpose to aid/abet
accomplice testimony by nonoffense
accomplices (Helmenstein); none in fed.
Cannot attempt to aid/abet (Genoa); you can aid/abet an Types
MPC – Typically subjectivist view and
attempt
Principal – Acting with purpose to
does not require assistance, in fact, but
facilitate/promote, engages in the act or
only purpose to aid and act
Types
omission that causes the crime, or acts through
CL: aid in fact, but causation not req’d.
Principal in the 1st degree – Actually engage in the act an irresponsible or innocent agent (Innocent
MPC - accomplice can be convicted even
or omission that constitutes the criminal offence
Instrumentality) to commit the offence
if P has not yet been prosecuted, has
Principal in the 2nd degree – incites or abets and is
Accomplice – incites or abets with requisite
been convicted of a lesser crime, has
present, either actively or constructively at the time of
intent to agree/attempt/actually aid before or
been acquitted, or is feigning, or if P did
the crime
during the commission of the offense. Includes
not attempt/commit.
Accessory before the fact – incites or abets but is not
solicitation and omission when a duty is
MPC - No Pinkerton Doctrine.
present at the time of the crime.
present.
MPC - one who is legally incapable of
Accessory after the fact - intentionally assists the
committing an offense may be
principal after the crime.
Mens rea
accountable for the crime if another
Accessories usually get lesser sentence
Purposefully promotes or facilitates in the
person for whom he is legally
Actus reus
commission of a crime.
accountable commits it.
The D must have directly or indirectly
Must act with culpability sufficient for the
CL - If the perpetrator is justified, then
encouraged/facilitated the commission of the offense.
commission of the offense:
there is no accomplice liability because
A&Abetting is any significant assistance in the
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commission of an offense. The aid must impact upon
the actual perpetrator but does not have to be necessary
for the successful commission of the offense.
Perpetrator doesn’t’ have to be aware of the accessory’s
assistance. (Locking door of car, driving getaway car)
Inciting –psychological encouragement even if not
accompanied by physical aid.
Sometimes being present at crime with prior agreement
to aid is sufficient, but not often enough.
Omissions sufficient if there is a legal duty.
Innocent instrumentality used– accomplice becomes
principal.
Mens rea
1. Mental state required for commission of the
target offense; intent to assist
2. The intent, by such assistance, that the primary
party commit the offense charged/whatever
mental state is required for substantive crime.
Generally, this second element can be inferred from the
first.
Note that this is especially significant in
jurisdictions with felony murder because it
makes an accomplice in the conduct
(underlying felony) strictly liable for the
resulting death because he had the requisite
mens rea as to the result, AKA:
A person who is an accomplice in the
commission of conduct that causes a criminal
result, is also an accomplice in the result
thereof, if she has the level of culpability
regarding the result required in the definition of
the offense.
(This is how MPC deals with accomplice
liability in reckless or negligent contexts.)
Both: A victim (underage girl in statutory
rape) cannot be an accomplice in her
own victimization because of Legislative
Exemption Rule.
Sufficient to establish complicity with
matching mens rea terms in some courts
Substantiality of aid can also create
complicity. Complicity may also be
established if there is sufficiently
substantial benefit to the knowing
facilitator.
Felony Murder: Some states would
punish accomplice
Charges:
Utilitarian: same as P depending on
attend. Circum.
Retributivist: A may need more for
culpability; treat A as different than P
Pinkerton Doctrine: Accomplice is liable for all crimes
that are a reasonably foreseeable result of the
contemplated crime in a conspiracy.
Some jurisdictions allow D's to be accomplices to
reckless or negligent crimes if they have that mens rea
Natural and Foreseeable Consequences: uncommon
a. DEFENSES
COMMON LAW
Withdrawal– Must take place before the events are unstoppable
Inciter – communicate a renunciation of the crime to the
perpetrator
Abettor – Must render the assistance D gave ineffective
No crime occurred– can’t be accomplice
Perpetrator acquitted on justification–accomplice should be
acquitted.
- If on excuse, a crime has occurred; no defense for A.
there is no crime.
CL- excuses do not transfer from
perpetrator to accomplice
MPC
Withdrawal– Wholly depriving his prior
assistance of effectiveness, provides a
timely warning of the plan to law
enforcement, or makes an effort to
prevent the commission of the offense.
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DIFFERENCES
V. CRIME
A. INCHOATE
1. ATTEMPT - an act done with the intention of committing crime. Incomplete v. imperfect attempts.
COMMON LAW
MPC
Mens Rea: Dual intent; intentionally do actus reus of
Mens Rea:
attempt and commit attempt with specific intent to
For the attempt – Purposely engages in conduct
commit target offense.
which would constitute the crime if the
For the Attempt - Specific intent to commit the acts or
attendant circumstances were as D believes
cause the resulting target crime.
them to be.
For the Target crime - Intent necessary for the target
For the Target crime – D purposely acts with the
crime (specific or general depending on the offence), so kind of culpability otherwise required for the
sometimes lower than attempt.
attendant circumstances of crime.
For strict liability must only show intent to attempt, no
Must believe the result will follow.
target crime mens rea.
However, here too, the mens rea for attempt is
Reckless crimes – Courts generally do not try for
often higher than the one required for the target
attempts of reckless crimes.
offense. Default mens rea is purpose.
Negligent crimes - Attempt to commit is logically
impossible
Actus Reus:
D must perform a substantial step toward
Actus Reus: How close to completing offense
committing the crime.
Dangerous Proximity test – conduct must be physically
D’s conduct must be corroborative of D's
proximate to the intended crime. Focuses on what
purpose.
remains to be done. Majority.
Indispensable Elements – Control over all factors in the Attempt is a felony – one OR or the same
commission of the crime. Nothing must be left undone
degree of offense as target crime if not felony.
Probable desistance - Likelihood that D would cease
Federal courts use the substantial step test!
efforts to commit the crime given the conduct D has
already committed.
Unequivocal (res ipsa loquitur) – An act amounts to
attempt only if it firmly shows the D’s intent to commit
the crime. The act “speaks for itself”
Last Proximate Act- test has been generally rejected, is
traditional common law
Attempt is a misdemeanor, but modern rule= 1 less
than target offense.
a. DEFENSES
COMMON LAW
Mistake of fact
No mistake of law
MPC
No mistake of fact
No mistake of law
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DIFFERENCES
Under MPC, D may still be held for
the attempt even if the target offense is
neither committed nor attempted by D
or anyone else. Not an offense in CL.
CL - no definitive Actus Reus test; see
how close D is to committing crime,
vs:
MPC - how far conduct went from
point of initiation of target offense.
Most states no attempt for Felony
Murder
Subjective: Must abandon/renounce
criminal purpose.
Incomplete: Got thwarted by police
Complete: Finished the stick-up but
the victims defended themselves
Cannot attempt felony murder, but you
can come up with alternatives.
Equivocality: Generally, deadly
weapon modern trends towards less
proof needed. (People v. Miller)
Substantial Step: Feds + ½ states use
MPC style
Dangerous Proximity: C. v Peaslee
NY Penal Law: “conduct which tends
to effect the commission”
DIFFERENCES
MPC – Only “true” legal impossibility
is a defense
Legal impossibility
No factual impossibility
Hybrid impossibility – actor’s goal is illegal but
commission is impossible regarding legal status of a
circumstance relevant to conduct.
Abandonment:
Traditionally never a Dse. Abandonment is a Dse when
it is complete and voluntary. Once D's actions have
passed the point of being an attempt is not generally a
Dse.
No factual impossibility
No hybrid impossibility, only
Legal impossibility
Renunciation (abandonment): (McCloskey)
Is a Dse even if substantial step, only if:
1. It is fully voluntary and not made because
of the difficulty of completing the crime or
bc of increased risk of apprehension.
2. It is a complete abandonment of the plan
made under circumstances manifesting a
renunciation of criminal purpose, not just a
postponement.
2. CONSPIRACY: AGREEMENT BETWEEN 2+ PEOPLE TO COMMIT UNLAWFUL ACT(S).
COMMON LAW
MPC
Actus Reus:
Actus Reus:
Agreement to commit a criminal act or series of acts, or Agreement to commit a crime; attempt to
to accomplish a legal act by unlawful means.
commit a crime; solicit another to commit an
Agreement is enough.
offense; aid another in planning or commission
Object of Agreement - need only be unlawful /
of an offense.
wrongful.
Object of Agreement - must be a criminal act.
Nature of the Agreement - need not be written or even
Act Doctrine - No overt act is required for
express. Can be implied from the action of the actors
serious (1st or 2nd degree) felonies but required
Act Doctrine - no further act is necessary in most
for all other offenses.
jurisdictions; mention both! (“Agreement is the harm”)
Merger – No merge unless there are further
Merger - does not merge into an attempt or the
conspiratorial crimes to be carried out.
completed offense.
Mens Rea:
Mens Rea:
Purpose to promote or facilitate the object crime
Specific intent crime with dual intent:
Mere knowledge without purpose is not usually
1. intent to agree
enough but can be when inferred by a stake in
2. intent to carry out the object crime.
the success of the object crime (Lauria)
Some courts allow conviction if the second mens rea (as
to object crime) is mere knowledge, but most require
Attendant Circum. – Court decides.
purpose. Businesses might be guilty if they have a stake
in the business.
Number of Parties Needed – only one with the
Attendant Circumstances - court has held that mens rea
requisite mens rea (unilateral theory), but there
here is the same as for the substantive crime, even if it
is chain conspiracy with the same crime.
is strict liability.
Punishment - punishment is the same as for the
Number of Parties Needed - two or more with the
object crime in all cases but 1st degree felonies.
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DIFFERENCES
MPC - knowledge is not enough
(Lauria)
CL - knowledge may be enough.
(Jdx divide; K=felony; P= misd.)
Object of agreement must be criminal
under MPC vs. unlawful /wrongful in
CL.
MPC is unilateral vs dual agreement.
CL lets D off if state cannot prove that
there was another person with the
requisite mens rea.
Overt act requirements differ. MPC
merges and CL does not.
MPC has heavier punishments.
CL - In jurisdictions that do not accept
Pinkerton, you can be a conspirator
and not an accomplice. Most accept
Pinkerton.
MPC rejects the Pinkerton Doctrine in
general. NY Penal Law too.
Hearsay evidence generally not
allowed to prove truth, except for co-
requisite mens rea (multilateral theory).
conspirators (Krulewitch)
Punishment - some jurisdictions treat all conspiracies as
misdemeanors, usually graded in relation to the target
offense.
Pinkerton Doctrine is rejected - if the
conspiracy goes beyond the intended purpose,
one is not guilty of any foreseeable crime unless
he can be said to have aided and abetted in its
commission.
Pinkerton Test - all members of a conspiracy can be
held as accomplices of the crime and of any foreseeable
result of it. Liability holds even if the co-conspirator did
not assist the perpetrator. Federal cts. follow.
a. DEFENSES
COMMON LAW
No factual Impossibility
No legal impossibility
Legislative Exemption Rule – can’t be prosecuted for a
crime intended to protect them (like statutory rape)
Abandonment is not a defense to conspiracy (once
agreement/overt act reached) but can mitigate liability
for future offenses of co-consp. if they communicate
withdrawal to everyone involved.
MPC
No factual impossibility
No legal impossibility
DIFFERENCES
No Wharton’s Rule in MPC (although
unpopular in C/L anyway)
Abandonment: if the conspirator renounces his
criminal purpose and thwarts the success of the
conspiracy under circumstances demonstrating
a complete a voluntary renunciation of criminal
intent. (Complete defense)
B. HOMICIDE
1. MURDER - unlawful killing of a human being; with malice aforethought, or with the 4 MPC mens rea. RESULT CRIME.
COMMON LAW
Homicide with malice aforethought.
Malice Aforethought has four possible mens rea:
1. Express Malice: Intent to kill another human–
One may, but need not, infer the intent to kill
from the use of a deadly weapon. Need proof
BRD.
If willful, but no premeditation, or no
deliberation, then 2nd degree.
2. Implied Malice: Intent to inflict serious bodily
harm (great bodily injury). 2nd degree.
3. Implied: Extreme recklessness (depraved heart)Acts in the face of an unusually high risk that
conduct will cause death from serious bodily
harm. Under certain exceptional circumstances.
2nd degree.
4. Implied: Felony murder - during the commission
or attempted commission of an enumerated
felony in which death results; 1st degree. If
regular felony/misdemeanor, then 2nd.
MPC
Result crime. MPC divides into offenses
of murder, manslaughter, and negligent
homicide.
Mens rea: “Purposely,” “Knowingly,” or
“gross recklessness.”
Premeditation and deliberation are not
required.
Purposefully/Knowingly = C/L intent
Gross/extreme recklessness: Intent to
commit grievous bodily injury; risk-taking
is “substantial and unjustified. Indifference
to human life.
CL felony murder ® reckless indifference
if enumerated felony (robbery, arson,
burglary, kidnapping, felonious escape,
rape)
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DIFFERENCES
When MPC uses extreme recklessness as
the mens rea, it is similar to CL's
depraved heart killings.
CL Statutes:
First degree includes certain enumerated
types of homicide (lying in wait; by
poison, etc.); or a willful, deliberate, and
premeditated (WDP) killing; or felony
murder (enumerated felonies include
arson, rape, robbery, or burglary).
All other forms are 2nd degree murder.
"Depraved heart" is usually 2nd degree.
NY PENAL LAW:
1st Degree is for cops, etc.
2nd degree: depraved
indifference/reckless homicide;
unintentional but very reckless.
Felony Murder
a. PROVOCATION- mitigates murder to voluntary manslaughter (UNLAWFUL KILL W/O MALICE AFRETHGHT)
COMMON LAW
MPC
DIFFERENCES
Intentional, unjustified, inexcusable killing, which is
Extreme Mental or Emotional Disturbance
MPC requires that D be aware of the
normally murder, is mitigated if in:
(EED) - Homicide committed under the
risk being taken (recklessness) vs CL
1. Heat of passion, as a result of:
influence of extreme mental or emotional
intentional. MPC’s use of EED is a
2. Adequate provocation by:
disturbance for which there is reasonable
broader form of the CL provocation
Aggravated assault or battery
explanation or excuse.
defense.
Mutual combat
- MPC equivalent of provocation, but
Serious crime against close relative
provocation not actually needed.
EED v Heat of Passion (HoP)
Illegal arrest
–EED applies to all types of homicide
Observation of infidelity
Jury decides subjective and objectively if a
vs. HoP Dse only applies to intentional
No cooling off period allowed
reasonable person in the actor’s situation would homicides
Causal link between provocation, passion and
act that way.
–EED words alone may be adequate
homicide
View: Some states have “partial responsibility” vs. HoP where they are not
diminished capacity defense.
Jury decides whether reasonable person would act like
this.
Minority View: Partial Justification
Majority View: Partial Excuse
b. FELONY MURDER
COMMON LAW
One is guilty if she kills another person, even
accidentally, during the commission or attempted
commission of any felony.
Inherently dangerous test – The lower bound for
acceptable felonies. The felony must be inherently
dangerous.
Merger Rule – Upper bound for acceptable felonies.
Felony is independent purpose from the murder; a
felony that is not independent becomes part of the
homicide and is not f-m.
Res Gestae Limitation: The causation limitation
requires that the killing be in furtherance of the felony.
The mere fact that a death occurs during the
commission of a felony will not necessarily subject the
felon to felony M.
MPC
Does not distinguish felony murder, but MPC
raises a presumption of “recklessness and
indifference to human life” if the D during the
commission or attempt of certain felonies kills
someone. However, this is not absolute, the
prosecution must still prove it. The jury is
simply permitted to infer extreme indifference
to human life from the commission of the
felony. D may present evidence that the felony
was committed in a manner that does not
manifest extreme indifference to human life. It
is up to the jury to decide. Therefore, gross
recklessness during a felony can be applied to
states who like felony murder idea.
DIFFERENCES
Cannot attempt felony murder, but you
can come up with alternatives.
Code does not have an express felony
M rule.
If the felony is one of the enumerated
felonies (arson, burglary, robbery, or
rape), then this M is 1st degree. If not,
then it is 2nd degree.
NY PENAL LAW: Enumerated
felonies; limited to 2nd degree. No
Pinkerton in NY.
If accomplice is killed during felony
murder, under C/L you can be guilty,
but not under MPC.
- Get around this by looking at
provocation doctrine (you are
guilty for the dead person);
The central issue is the foreseeable risk of death. In
most jurisdictions, no felony M if the person who
commits the homicide is a non-felon who is resisting
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the felony.
say someone else could be an
accomplice.
A few states apply a proximate causation test which
holds a felon responsible for the killing by a non-felon
if the felon proximately caused the death / set in motion
the events that lead to the death.
2. MANSLAUGHTER
COMMON LAW
Voluntary MS – homicide without malice aforethought
(see Provocation)
"Heat of passion" - Intentional killing committed in
response to legally adequate provocation
Involuntary MS – unintended killing
- Criminal Negligence – Killing resulting from
gross negligence; sometimes blurs into
Depraved heart murder. (This would include
MPC recklessness as well)
- Unlawful Act “Misdemeanor manslaughter” –
an unintentional killing that occurs during the
commission of an unlawful act that don’t fit in
the f-m rule. Meant to fill in the gaps. Some
limit to malum in se (wrong in itself) felonies,
some broadly apply up to misdemeanors.
MPC
Manslaughter:
Reckless - unlike reckless murder, here the
conduct, although reckless, does not manifest
an extreme indifference to the value of human
life
Extreme Mental or Emotional Disturbance
(EED): (see Provocation)
DIFFERENCES
CL’s Involuntary MS is MPC’s
Negligent Homicide
Negligent Homicide: A criminally negligent
killing; involuntary manslaughter.
C. RAPE
COMMON LAW
Forcible Rape:
Majority: physical force required
Minority: requires proof of both lack of consent, and
secured by force.
Lack of consent: Force usually proves both elements.
Some: Non-consensual force is enough for rape.
Resistance Requirement: Some courts consider “no”
sufficient; some lowered barrier, some got rid of
requirement by statute/interpretation.
Some require proof of fear (subjective) and proof of
threat (objective).
Most states abolished marital exception, and any
MPC
Forcible Rape: Must use imminent death,
grievous bodily harm, extreme pain, or
kidnapping to constitute forcible rape.
Consent: No requirement; focuses on D’s acts
of aggression rather than lack of consent.
Resistance: no proof required, though may be
evidentiary to prove compulsion.
Marital Exception: A man can’t rape his wife.
Sad.
- Gross Sexual Imposition: Separate
crime, but is for other crimes like
threat of loss of job, mistaken
submission to someone not your
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DIFFERENCES
Majority view is now the modern
common law view:
Most: negligence standard, but force
needed
Some: recklessly disregard nonconsent; or circumstantial evidence
points to non-consent, so therefore
knowledge
Note: Rape Shield Laws – protect
victim from being cross-examined re:
sexual past, because it isn’t relevant to
current lack of consent in a case.
penetration is sufficient.
husband…
Mens rea is purposely, knowingly, recklessly.
VI. DEFENSES
A. JUSTIFICATION - conduct that is otherwise criminal. Must be necessary, proportional, and with reasonable belief, usually even if incorrect.
1. SELF DEFENSE
COMMON LAW
At c/l, a non-aggressor is justified in using proportional
force upon another if he reasonably believes such force
is necessary to protect themselves or others from the
imminent use of unlawful force by another
D may always use non-deadly force to protect oneself
against an unlawful aggressor.
Deadly force must additionally show reasonable belief
D is imminently facing deadly force.
- D does not need to retreat in majority view.
- Minority view is if D knows of a completely
safe place. (But D does not have to retreat
within D's own dwelling even if one could do
so in complete safety.)
When D is the aggressor, he loses his right to use force.
D may purge himself of his status as the aggressor and
regain his right to self-defense by removing himself
from the fray and successfully communicating that fact.
If D, as the aggressor uses non-deadly force, and victim
responds with deadly force, D can immediately regain
his right to self-defense. Some require D to retreat first.
MPC
D if not the aggressor is justified in using
(deadly) force if:
D honestly believes such force is immediately
necessary to protect D’s person on the present
occasion
Harm is unlawful
Deadly force is justified if one faces a threat of
death, GBH, forcible rape, or kidnapping. A
threat without that purpose is not deadly force,
even if a weapon backs up the threat.
If D know/realizes he can be completely safe by
retreating D must.
- D no duty to retreat from home, even
from a co-dweller.
- Defense not permitted if actor is
aggressor, who provokes the use of
force against herself in the same
encounter for the purpose of causing
death or GBH.
Mistake of fact= partial justification, not
acquittal
DIFFERENCES
CL: Objective reasonable belief rule.
Even if incorrect it is a defense. Jury
looks at prior experiences; physical
characteristics; some courts allow
Battered Woman Syndrome.
MPC: jury looks at the D's subjective
belief, the belief need not be
reasonable.
But: If D's belief was negligently or
recklessly formed, one can be liable
for reckless or negligent use of deadly
force
NY Penal Law: adds reasonable
belief, must retreat, unless burglary,
stop felony, police, dwelling (both
S&O beliefs)
Most states add reasonable; drift to S.
MPC replaces imminence with the
phrase "immediately necessary" so that
one may use force after a longer time
than CL
Some have stand your grand (Florida)
Exam: State the possible crime if you
decide no SD.
2. NECESSITY
COMMON LAW
D is justified if:
He reasonably believes that he is avoiding the greater
evil.
Balance of evils must be positive.
MPC
D is not justified unless:
D not only reasonably believe that D is avoiding
the greater harm, but D is actually avoiding the
greater harm.
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DIFFERENCES
MPC requires that D's reasonable
belief actually be true.
MPC does not have an immediacy
requirement.
There must not be an alternative.
The harm must be imminent/immediate.
D may not have created the necessity.
D can never take another's life out of necessity.
Dse only applies when a natural force created the
necessity.
When the balance of evils is negative, D may be held
strictly liable.
Balance of evils must be positive.
There is no immediacy requirement.
D may not have caused the necessity.
D may take a life if the balance of evils is
positive. Dse may apply in homicide cases.
This Dse applies but not limited to emergencies
created by natural forces, nor is limited to
physical harm to persons or property.
If D's belief is mistaken, can be held for crime
requiring either negligence or recklessness.
If D negligently or recklessly caused the
necessity, he may be held for crimes of
negligence and recklessness.
MPC if D caused it accidentally, he
can still claim necessity though if he
recklessly or negligently created the
necessity, he may be held for crimes of
recklessness and negligence.
MPC allows Dse in cases where a
natural force did not create the
necessity.
NY Penal: requires imminency;
requires clean hands doctrine; not
limited to natural forces; may be
employed in homicide prosecutions.
B. EXCUSE - wrongful conduct, but under the circumstances, D is not morally culpable or blameworthy.
1. DURESS
COMMON LAW
Some think it’s justification, but most courts treat it as
excuse because of human intuitions about innocence.
D may be excused if:
D was threatened with death or GBH (or if a 3rd party is
so threatened) by another human
D reasonably believes that the threat is genuine
D felt that the threat was "present, imminent, and
impending" at the time of the act
D felt that the only way to avoid the harm was to give in
to the threat
D was not at fault in exposing himself to the threat
Duress is not a defense to an intentional killing. Some
states recognize an imperfect defense whereby murder
is reduced to manslaughter.
MPC
Duress is an excuse to unlawful conduct by D if:
D was compelled to commit the offense by the
use or threatened use of force by the coercer
upon her or another
A person of reasonable firmness in D's situation
would (also) have been unable to resist the
coercion.
Dse is not available if D recklessly placed
herself in the position where she would likely
be subject to coercion.
If D negligently put herself into such a position,
defense is unavailable if negligence suffices to
establish guilt.
DIFFERENCES
MPC abandons the CL requirements
of deadly force and imminency in
favor of excusing D whenever a person
of reasonable firmness would also
have yielded to coercion;
MPC Dse is one of general
applicability–may be used in murder
cases
MPC does not recognize Dse when any
interest other than bodily integrity is
threatened.
MPC does not require that an
imperiled party be Ds relative.
MPC similar to CL in that Dse is
limited to threats or use of unlawful
force and does not apply to coercion
by natural sources.
Escape: Limited defense; courts require escapee to
return herself after the escape.
2. INSANITY: AFFIRMATIVE DEFENSE
COMMON LAW
M'Naghten Rule (Federal)– D is insane if, at the time
MPC
Substantial capacity test- One is not
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DIFFERENCES
MPC: Total cognitive or volitional
of the criminal act, he was laboring under such a defect
of reason, arising from a disease of the mind, that he
Did not know the nature and quality of the act he was
doing; or
If he did know it, if he did not know that what he was
doing was wrong (i.e. he did not know the difference
between right and wrong).
Irresistible impulse test - that states that D was insane
if:
She acted from an irresistible and uncontrollable
impulse;
She lost the power to choose between right and wrong
and to avoid doing the act in question, as that her free
agency was at the time destroyed; or
The D's will … has been otherwise than voluntarily so
completely destroyed that her actions are not subject to
it, but are beyond her control.
Product test: excused if unlawful act was product of
mental disease/defect at the time of the crime. Insanity
is the but-for cause of committing crime.
C.
responsible for her criminal conduct if, at the
time of the act, as a result of a mental disease or
defect:
D lacked substantial capacity to
Appreciate the wrongfulness/criminality of D
conduct or
To conform D conduct to the requirements of
the law
incapacity not required.
MPC: Uses appreciate rather than
know.
MPC: avoids irresistible/impulse
language. Broadens M’Naghten.
MPC
Voluntary Intoxication: Defense if it negates
element of mens rea offense.
Exception: D can’t use intoxication to prove
unawareness of risky behavior in reckless
crime. If negligence, then it will be reckless.
DIFFERENCES
Involuntary Intoxication: same for
MPC and CL.
- E.g.: mistake, medication,
addiction
- Lacked requisite mens rea,
even for general intent.
- Temporary insanity is a
defense
NY Penal/MPC: voluntary is defense
for purpose/knowledge; not for
reckless.
MPC
Must negate the mens rea required to establish
any element of the offense.
DIFFERENCES
D steals diamonds believing they’re
glass - MPC à petty larceny; CL à
grand larceny. D steals glass believing
it‘s diamonds, MPC à petty larceny
Most places are M’Naughten after
Reagan assassination attempt.
GENERAL
1. INTOXICATION
COMMON LAW
Voluntary Intoxication: not an excuse defense.
Most jur. provide D is not guilty of specific intent crime
if he lacked ability to have the requisite intent.
Does not exculpate for general intent crimes.
Temporary insanity not a defense.
Fixed insanity may be a defense if it’s extreme
alcoholism but it is insanity defense not intoxication.
2. MISTAKE
a. OF FACT
COMMON LAW
Must negate mens rea of the crime charged.
D not guilty if MoF negates the specific intent portion of
the offense.
For general intent offenses not guilty if MoF was
Logical Relevance Test - figure out the mens
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honest and reasonable. Guilty if MoF was honest, but
unreasonable. Reasonability is both subjective and
objective ® you believe it + jury finds you reasonable
Moral Wrong test – If granted MoF, will hold D for a
higher offense when were the situation as he supposed it
to be, his conduct constituted this lesser offense.
b. OF LAW
COMMON LAW
No defense, but exceptions.
Exceptions - mistake must be reasonable and honest.
Reliance on Official Statement
No reasonable notification/publishing of new law
Specification in Statute that knowledge of law is req’d.
rea for each and every element of the crime.
If granted MoF, will hold D for a lesser offense
when were the situation as he supposed it to be,
his conduct constituted this lesser offense.
MPC
MPC does not recognize a defense of mistake of
law unless there is express negation of mens rea
element.
Specification in Statute that knowledge of law is
req’d.
Reliance on Official Statement
No reasonable notification/publishing of new law.
and attempted grand larceny and CL
à petty larceny and attempted grand
larceny.
MPC – Look at the world through the
D’s eyes in a factual (not legal) manner
MPC/CL - No mistakes get you off for
strict liability.
DIFFERENCES
CL and MPC approaches are
similar. In general, unless falling
into a recognized exception,
ignorance of the law is no defense.
MPC codifies the CL reasonable
reliance doctrine.
3. IMPOSSIBILITY
a. OF FACT
COMMON LAW
None; that is, the person who tries to shoot someone
with a water gun, thinking it was a real gun, would not
have a defense of factual impossibility. If the facts were
as he believed them to be the victim would be dead.
Some cases look like factual impossibility but are not;
ex. man attempts to kill victim with voodoo doll.
While this is impossible, it is inherently impossible, not
per se factually impossible; in the voodoo case the
victim would still be alive if the facts were as he
supposed them.
b. OF LAW
COMMON LAW
Cannot punish for a crime that is not a crime.
Hybrid legal impossibility - Where the actor’s goal is
illegal but impossible due to a factual mistake of a legal
status of an attendant circumstance.
ie. Man has sex with girl thinking she is 15 when she is
really 18. Some courts recognize this Dse, most do not.
Modern trend towards abolition of this.
MPC
Same as common law.
DIFFERENCES
Factual: intended crime is unlawful but
can’t consummate because of an
attendant circumstance unknown/out
of control.
(Not a defense; People v. Thousand)
MPC
Same as common law but no Hybrid legal
impossibility. (MPC looks at mens rea instead)
DIFFERENCES
Legal: wrong to convict a defendant
for conduct that is not proscribed by
law.
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DEFINITIONS
THEORIES
Public Benefit Theory –Conduct was not justified unless it was performed
in the public’s interest
Conduct that under ordinary circumstances is criminal, Moral Forfeiture Theory
but which under the special circumstances
- People possess certain moral rights or interests that society recognizes
encompassed by the justification defense is not
through its criminal laws but which may be forfeited by the holder of the
wrongful and is even, perhaps, affirmatively desirable.
right (right to life)
- Nonconsensual loss of a valued right
1. Is D entitled to be acquitted if she was mistake
JUSTIFICATION
regarding the facts that would justify her conduct? Moral Rights Theory
- Actor has a right to protect a particular moral
2. If she is entitled to be acquitted, should the law
interest
describe her conduct as justified or excused?
- Focuses on the interests of the innocent
defendant
ex: self-defense, defense of habitation, defense of
Superior Interest (lesser harm) Theory – Authorizes conduct when the interests the
property
defendant seeks to protect outweigh those of the person whom she harms
Nature of a claim that although the actor has harmed
society, she should not be blamed or punished for
causing that harm
EXCUSE
All elements of the crime have been proven and it has
been determined the conduct was unjustifiable, so the
defendant must persuade the jury that she is not to
blame for her wrongful conduct.
Deterrence Theory (Non Sequitir)
- Excuses are recognized in the criminal law because they identify the
circumstances in which conduct is undeterrable (insane or coerced)
- Punishment of the actor is wrong because it is inefficacious
Causation Theory – A person should not be blamed for her conduct if it was caused by
factors outside her control
Character Theory
- Punishment should be proportional to a wrongdoer’s moral desert and the desert
should be measured by the actor’ character
- Excuses should be recognized in the law in those circumstances in which bad
character cannot be inferred from the offender’s wrongful conduct
Free Choice (Personhood) Theory
- Blame if person can act in a human way
- Free choice exists if at the time of the conduct, the actor has the substantial
capacity and fair opportunity to: (1) Understand facts relating to conduct; (2)
Appreciate the conduct violates society’s mores; (3) Conform conduct to law.
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Let’s do CRIMES:
Arson
Fraud
Kidnapping False
Trespassing Theft
imprisonment
Forgery
Stalking
Disorderly
Identity
conduct
theft
Robbery
Solicitation
Child abuse/
Assault
abandonment
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Bribery
Extortion
Drug
possession
Brandishing Prostitution Blackmail
C/L Burglary:
- Traditional: breaking and entering the dwelling house of another at night with the intent to commit a felony therein
- Modern: Unlawful entry or unlawfully remaining on premises with the intent to commit a crime (usually a felony)
therein; does not have to be at night and expansion of what is “dwelling” (does not have to be house).
- Should involve entry of enclosed space but would have to determine based on statute (does not require forced
entry).
- Specific intent crime, intent is at time of entry
NY Burglary (MPC):
- A person is guilty of burglary in the second degree when he knowingly enters or remains unlawfully in a building
with intent to commit a crime therein, and when…the building is a dwelling
Robbery:
- Unlawful taking of property using force or threat of force. Property must be taken directly from or very near the
person.
- Take bag from shoulder, off chair = robbery
- Take back when person left to bathroom = theft
- Theft is included in robbery, merge and get more severe crime.
Larceny:
NY Larceny:
- C/L: trespassory taking and carrying away of personal property of another with the intent to permanently deprive
them of the property or its value, w/o force.
- Specific intent crime, larceny is complete the moment property is taken with requisite intent.
- Trespassory taking when thief may also have trespassed.
- Penal Law Article 155: A person steals property and commits larceny when, with intent to deprive another of
property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such
property from an owner thereof.
- Compare with MPC § 223: unlawful taking of movable property, theft by deception, theft of services, and theft by
failure to make required disposition of funds (p. 1071)
Aggravated Battery:
- Committing a battery, intentionally or knowingly, causing great bodily harm
Battery:
- Offensive or injurious physical contact (completed assault); unlawful application of force to another person (can be
reckless not intentional)
Assault:
- Intentionally placing another in reasonable apprehension of an imminent battery; simple assault is C/L
misdemeanor, aggravated (police officer) is felony; statutory assault requires injury; NY requires physical injury
Fraud:
Extortion:
- Stealing by deceit, or lying, or trick
- Acquiring property by threat of force
Brandishing:
- Displaying a gun in a manner intended to instill fear
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