Criminal Law Outline
I. Process & Purposes
II. Sources & Limits of Criminal Law
- Sources
o Common law
o Public morality/religious texts
o MPC
- Interpretive tools
o Precedent
o Treatise
o Judgments from other jurisdictions
o Dictionaries
o Sociological studies
o Legislative history
- Principles
o People should be able to determine or anticipate what conduct is criminal
o People need to have notice of what the law is
o Law needs to be clear so as to prevent men of common intelligence from
necessarily guessing at its meaning
o Needs to be clear enough to permit common people to conform their conduct to
the law
o Needs to avoid unfettered discretion @ hands of police (no discretionary
enforcement)
- Of statutory interpretation
o in pari materia
o ejusdem generic
o expression unius est
o exclusio alterius
III. MENS REA
- Person is (usually) not guilty of an offense unless he performs a voluntary act (or omits
an act) that causes a social harm, with a mens rea
- Mens rea is what separates liability from culpability
- Culpability def’n: sufficient to prove that the defendant acted w/a general culpable state
of mind, w/o need to demonstrate a specific state of mind such as “intentionally,
knowningly, or recklessly”
- Elemental def’n: particular mental state set out in the def’n of the offense
Common Law:
- Intentionally: if it is defendant’s desire to cause social harm OR he acts w/knowledge that
social harm is virtually certain to occur as a result of his conduct (subjective)
o Transferred intent attributes liability to D who, intending to kill or injure 1 person,
accidentally kills or injures someone else
- Knowingly: if he is aware of the fact or he correctly believes it exists (subjective); what
the D actually believed
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o Minority apply objective test: doesn’t matter what D actually believed b/c its
difficult to prove actual state of mind
o Attendant circumstance if D is aware of a high probability of existence of the fact
in question & he deliberately fails to investigate in order to avoid confirmation of
the fact (marijuana-mobile)
o Willful blindness=positive knowledge (marijuana-mobile): is a party has his
suspicion aroused but then deliberately omits to make further inquiries b/c he
wishes to remain in ignorance, he is deemed to have knowledge
- Negligence: if he takes a substantial, unjustifiable risk of causing the social harm that
constitutes the offense charged (objective)
o Criminal: risk must be of such a nature & degree that the failure to perceive it
constitutes a gross deviation from the standard of care that a reasonable person
would observe in the situation so gross as to be deserving of punishment
- Recklessness: requires proof that D disregarded a substantial & unjustifiable risk of
which he was aware (subjective)
o Conscious disregard of a substantial & unjustifiable risk by defendant
MPC: requires prosecution to prove that committed the actus reus of offense w/a culpable state
of mind, as set out in the specific statute (no distinction b/t general intent & specific intent)
- Purposely:
- Knowingly:
- Recklessly:
Strict Liability:
- Def’n: offenses that lack a mens rea requirement regarding 1+ elements of the actus reus
o For certain crimes, mere proof of the actus reus is sufficient for a conviction,
regardless of D’s state of mind @ time of commission
- Mistake of fact is irrelevant
- General principles:
o conceptual: ignorance of law is no excuse
o statutory: mens rea isn’t a required element of crime
- Factors that support strict liability interpretation of crime (must have all 5)
o Not a malum in se crime derived from CL but malum prohibitum crime enacted
for public welfare
o Legislative intent & policy clearly indicates strict liability or would be
undermined by a mens rea requirement
o Standard imposed by the statute is reasonable
o Penalty is small (fine, but not imprisonment)
o No (grave) moral stigma attached to crime
- MPC
o does not recognize strict liability, except w/respect to offenses graded as
“violations”
Mistake of Fact
- Common Law: dependant on whether crime is general intent or specific intent
o Specific intent: D isn’t guilty of an offense if his mistake of fact negates the
specific-intent portion of the crime, if he lacks the intent designated in the
definition of the offense (knowingly, negligently, recklessly)
o General intent:
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
Ordinary approach: person not guilty of general-intent crime if his mistake
of fact was reasonable, but he is guilty if his mistake was unreasonable
 Moral-wrong doctrine: no exculpation for mistakes where, if the facts had
been as the D believed them to be, his conduct would still be immoral
 Legal-wrong doctrine: no exculpation for mistakes where, if facts had
been as D believed them to be, his conduct would still be “illegal”
- MPC: mistake is a defense if it negates the mental state required to establish any element
of the offense
o Exception: not available if D would be guilty of another offense, had the
circumstances been as he supposed; only permits punishment @ level of the lesser
offense
Mistake of Law
- MPC & CL: ignorance of law excuses no one
- Exceptions:
o Reasonable reliance doctrine: D is excused if he reasonably relies on an official
statement of the law, later determined to be erroneous, obtained from a person or
public body w/responsibility for the interpretation, administration, or enforcement
of the law defining the offense
 Official statement: for statement to be “official” it must be contained in a
(1) statute later declared to be invalid; (2) judicial decision of highest court
in the jurisdiction, later determined to be erroneous; or (3) an official, but
erroneous, interpretation of law, secured from public officer in charge of
its interpretation, administration, or enforcement, such as the AG of the
state or US
 Exceptions to doctrine:
 reliance on one’s own interpretation of the law
 advice of prosecutor
 advice of private counsel
o Lambert principle
 CL: under very limited circumstances, a person who is unaware of a duly
enacted & published criminal statute may successfully assert a
constitutional defense in a prosecution of that offense
 MPC: where D doesn’t believe his conduct is illegal AND the statute
defining the offense isn’t known to him; & wasn’t published or otherwise
reasonably made available to him before he violated the law
- Ignorance or mistake that negates mens rea
o CL:
 Different law approach: D’s lack of knowledge of, or misunderstanding
regarding the meaning or application of, another law, will negate the mens
rea element in the definition of the criminal offense (see pg. 45)
o MPC: mistake or ignorance of the law is a defense if it negates a material element
of the offense; defense usually used in cases of different-law mistake
IV. ACT REQUIREMENT
- Generally, a person isn’t guilty of a crime unless his conduct includes a voluntary act
Actus reus
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-
Voluntary act (or omission of act) that causes social harm
Act: physical behavior, not the mental processes of planning or thinking about the
physical act that gives rise to the criminal activity
- Voluntary: any volitional movement, including habitual conduct
o Involuntary: spasms, seizures, bodily movements while unconscious or asleep
- Burden of proof: prosecution bears the burden of proving that Defendant’s conduct
wasn’t voluntary since voluntariness of an act proscribed by criminal law is in fact an
element of the crime; sufficient that D’s conduct- which is actual & proximate cause of
social harm- included a voluntary act
- MPC: requires that criminal conduct include a voluntary act
o Involuntary: reflexes, convulsions, conduct occurring during unconsciousness,
sleep or due to hypnosis, any conduct that “isn’t the product of the effort or
determination of defendant, either conscious or habitual”
Omissions
- CL: person has no legal duty to act in order to prevent harm to another
o Exceptions to “no duty to act” rule (p.11):
 duty based on relationship
 duty based on contractual obligation
 duty based on creation of risk
 duty based on voluntary assistance
 statutory duty to act
- Statutory duty to act: duties that are imposed by statutes
o Good Samaritan laws
- MPC: liability based on omission may be found:
o if law defining offense provides for it
o if the duty to act is “otherwise imposed by law” (i.e., torts or K law)
Social Harm
- Conduct elements: establish social harm in terms of conduct, irrespective of any harmful
results
- Result elements: offense defined in terms of a prohibited result (i.e., murder)
- Combined: offense containing both result & conduct elements (i.e., def’n 1st degree
murder as the killing of another human being (result) by destructive device or explosive
(conduct))
- Attendant circumstances: fact or condition that must be present at the time D engages
in prohibited conduct and/or causes the prohibited result that constitutes the social harm
of the offense
V. Causation
Cause in fact
- Common Law
o “But for” test: but for the defendant’s voluntary act, would the social harm have
occurred when it did?
o Concurrent causes: if each act alone was sufficient to cause the result that
occurred when it did, the causes are concurrent & each wrongdoer can be found
criminally liable
- MPC: “but for test”
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Proximate Cause
- Common law:
o Direct cause: act that is a direct cause of social harm is also a proximate cause of
it
o Intervening causes: independent force that operates in producing social harm, but
which only comes into play after the defendant’s voluntary act or omission
 Defendant can’t escape liability if the intervening act was reasonably
foreseeable as opposed to an unforeseeable intervening cause, which
would be superseding in nature
- MPC: “but for” test is the exclusive meaning of “causation:
o whether D caused the prohibited result w/the level of culpability (purpose,
knowledge, recklessness, or negligence) required by the definition of the offense
VI. HOMICIDE
- Death: brain dead, flat line, when all 3 parts of the brain cease to function
- Fetus: considered a human being when it could survive on its own outside the mother’s
womb
Common Law
- Homicide: the killing of a human being by another human being (suicide isn’t homicide)
- Malice requires any one of 4 states of mind:
o intention to kill a human being
o intention to inflict grievous bodily injury on another
o an extremely reckless disregard for value of human life
o intention to commit a felony during commission or attempted commission of
which a death results
- Murder: the killing of a human being by another human being w/malice aforethought
o 1st degree: willful, deliberate, premeditated killing
- Premeditation (quantity) & deliberation (quality) OR
 Planning, motive, manner needed to determine if premeditated
- By certain means (poison, explosive or incendiary devices, torture, illicit
drug use, lying in wait) OR
- ID/number of victim(s) OR
- Commission of felony
o 2nd degree (callous & impulsive killing):
- Intent to kill OR
- Intent to cause grievous bodily harm
- Extreme indifference to the value of human life (depraved heard murder)
- Manslaughter: an unlawful killing of a human being by another human being w/o malice
aforethought
o Heat of Passion test: if you can prove that intentional homicide was committed in
“sudden HoP” b/c of “adequate provocation” then the offense is reduced to
voluntary manslaughter
o Voluntary:
- During (sudden) Heat of Passion AND
 Passion: any violent, intense, high-wrought, or enthusiastic
emotion (i.e., fear, jealousy, wild desperation)
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
-
Killing committed under the influence of extreme mental or
emotional disturbance for which there is a reasonable explanation
or excuse
- W/reasonable provocation AND
 Violent assault
 Mutual combat
 Unlawful arrest
 Adulterous affair
 Words alone don’t suffice as adequate provocation
- W/o cooling period AND
 No opportunity to reflect
- W/causal connection b/t provocation, passion, & killing
o Involuntary:
- unintentional killing resulting from the commission of a lawful act done
in an unlawful manner; similar to criminally negligent homicide
- unintentional killing that occurs during commission or attempted
commission of an unlawful act
- no intention to kill or cause serious injury but death is due to recklessness
or criminal negligence
- Example: vehicular manslaughter
Misdemeanor manslaughter rule: unintended killing occurring in the commission of an
unlawful act constitutes a criminal homicide
MPC:
- Homicide: the unjustifiable & inexcusable taking of another human being’s life
purposely,
- Murder: homicide that is committed purposely, knowingly, recklessly, or negligently; D
intentionally takes a life, or if he acts w/extreme recklessness (depraved heart murder)
o murder: no degrees of murder
o manslaughter
o negligent homicide
- Manslaughter: recklessly kills another or kills another under circumstances that would
ordinarily constitute murder, but which is committed as a result of “extreme mental or
emotional disturbance”
- Reckless & Criminally Negligent Homicide: precludes liability for manslaughter based
on criminal negligence
o Criminally negligent homicide constitutes the lesser offense of negligent
homicide
- Extreme Mental or Emotional Disturbance (EMED): can get manslaughter instead of
murder IF it occurred while D was suffered from EMED for which there is a “reasonable
explanation or excuse”
o Specific provocation isn’t required
o Where there is provocation, it need not involve “an injury, affront, or other
provocative act perpetrated upon D by decedent”
o Even if decedent provoked incident, it need not fall w/in any fixed category
o Words alone can warrant a manslaughter instruction
o No rigid cooling-off rule
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Felony murder: murder during the commission or attempted commission of an enumerated
felony (BARRKS: burglary, arson, rape, robbery, kidnapping, sodomy);
- Felony must be inherently & foreseeably dangerous to human life:
o consider nature of offense in the abstract
o consider the circumstances of its commission
- CL: person is guilty of murder if he kills another person during the commission or
attempted commission of any felony 1st degree
- MPC: extreme recklessness is presumed if the homicide occurs while D is engaged in, or
is an accomplice in, the commission, attempted commission, or flight from one of the
dangerous felonies specified in the statute
- Statutory law: death that results from the commission of an enumerated felony constitutes
1st degree murder for which the max penalty is death or life imprisonment
o If death results from commission of an unspecified felony, it is 2nd degree murder
o Authorizes strict liability for death that results from commission of felony
- Limits to Felony-murder rule
o Inherently- dangerous felony: many states limit rule to homicides that occur
during the commission of felonies which by their very nature are dangerous to
human life, e.g., armed robbery
o Merger (independent felony) limit: felony-murder rule only applies if the
predicate felony is independent of, or collateral to, the homicide; if felony isn’t
independent, then the felony merges w/the homicide & cannot serve as the
basis for a felony-murder conviction
o Res Gestae requirement: homicide must occur “within the res gestae of the
felony” which requires BOTH:
- temporal & geographical proximity: res gestae period begins when D has
reached the point @ which he could be prosecuted for an attempt to
commit the felony & it continues @ least until all the elements of the
crime are completed
- causal relationship: b/t felony & homicide
o Killing by someone else:
- Agency: felony murder rule doesn’t apply to a killing, although growing
out of the commission of the felony, if its directly attributable to the act of
someone other than D or his accomplices in the unlawful enterprise
- Proximate cause: liability attaches “for any death proximately resulting
from the unlawful activity, notwithstanding the fact that the killing was by
one resisting the crime” (if policeman kills someone during an attempted
robbery)
VII. DEFENSES
Justification Defenses
- Self Defense
o Allows for complete acquittal
o CL Rule: person who is not an aggressor is justified in using force against
another if he reasonably believes that the use of force is necessary to protect
himself form the imminent use of unlawful force by the other person
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
Deadly force isn’t justified UNLESS the actor reasonably believes it is
necessary to prevent use of deadly force by the aggressor
 Use of force can’t be excessive in relation to the harm threatened
 One is never permitted to use deadly force to repel a non-deadly attack
o MPC rule: person is justified in using force upon another person if he believes
that such force is immediately necessary to protect himself against the exercise of
unlawful force by the other on the present occasion
 Person may not use force to resist an arrest that he knows is being made
by a police officer, even if arrest is unlawful
 Rule doesn’t prohibit use of force by an arrestee who believes that the
officer intends to use excessive force in effectuating the arrest
o Elements:
 Aggressor: person whose unlawful act is reasonably calculated to produce
a conflict resulting in injury or death
 Deadly aggressor loses his status if he communicates retreat
 Non-deadly aggressor loses his status when met w/disproportional
force, then he automatically regains right of self defense OR
regains only when there is no obvious safe retreat
 Necessity: issue of retreat
 Majority: no retreat rule b/c its manly to stand one’s ground;
retreat requirement would encourage aggressors
 Minority: innocent person MUST retreat ONLY IF it is completely
safe to do so
 CL: Non-aggressor who is threatened by deadly force must retreat
rather than use deadly force, if he is aware that he can do so in
complete safety
 MPC: retreat is not generally required in one’s home or workplace
 Exceptions to retreat rule:
o Castle doctrine: if you are innocently attacked in your own
home then you have no duty to retreat
o Co-dwellers: you don’t have to retreat from your home
 Imminent unlawful deadly force
 CL: deadly force is only justified in self-protection if D reasonably
believes that its use is necessary to prevent imminent & unlawful
use of deadly force by the aggressor
 MPC: deadly force is appropriate when D believes that such force
is immediately necessary to protect himself against:
o death
o serious bodily injury
o forcible rape
o kidnapping
 Imminent: immediate, upon the instance, or @ once
o Battered women’s syndrome: self defense can be raised
under 3 scenarios:
 Confrontational homicides: self-defense is always
given
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
Non-confrontational homicide: majority is that
homicide under such circumstances is unjustified
 Third-party hired-killer cases: self-defense not
available
o Expert testimony: exclusive, effective, established
 Unlawful: person may not defend himself against use of lawful
force, but even a police arrest can be unlawful if excessive force is
used
o any conduct that constitutes a tort or crime is unlawful,
even if the person might have a valid legal excuse
 Reasonableness: person is justified in using force to protect himself if he
subjectively believes that such force is necessary to repel an imminent
unlawful attack, even if appearance prove to be false; reasonable person
in D’s situation
- Defense of Others
- Necessity:
o Defense of last resort b/c it legitimizes technically illegal conduct that common
sense, principles of justice, and/or utilitarian concerns suggest is justifiable, but
which isn’t specifically addressed by any other recognized justification defense
o Requirements:
 D must be face w/clear & imminent danger
 Must be a direct causal relationship b/t the action & the harm to be averted
 Must be no legal way to avert the harm
 Harm that D will cause by violating the law must be less serious than the
harm he seeks to avoid
 Must be no legislative intent to penalize such conduct under specified
circumstances
 D must come to the situation w/”clean hands,” i.e., he must not have
wrongfully placed himself in a situation in which he would be forced to
commit the criminal conduct
o Limits: emergencies created by natural forces; non-homicide cases; protection of
persons & property only, excluding protection of reputation economic interests
o MPC: unlawful conduct is justified if:
 D believes that his conduct is greater than that sought to be avoided by the
law prohibiting his conduct AND
 the harm to be avoided by his conduct is greater than that sought to be
avoided by the law prohibiting his conduct AND
 there is no legislative intent to exclude the conduct in such circumstances
Excuse Defenses
- Duress
- Insanity
- Diminished Capacity
- Voluntary Intoxication
o Does not excuse criminal conduct; however, in limited circumstances,
intoxication may negate the necessary state of mind for a given offense & thus
prove exculpatory
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-
o Intoxication from alcoholism or drug addiction is considered voluntary
Involuntary Intoxication
Mistake of Fact
Mistake of Law
VIII. INCHOATE CRIMES
- Imperfect or incomplete conduct
Attempt
- Overt act, done w/intent to commit a crime, that constitutes a substantial step toward the
commission of a crime
o Complete but imperfect: occurs when D performs all of the acts that he set out to
do but fails to attain his criminal goal
o Incomplete: occurs when D does some of the acts necessary to achieve the
criminal goal, but he quits or is prevented from continuing
- Specific intent offense, even if the substantive crime is a general-intent offense
- Mens rea: D must intentionally commit the acts that constitute the actus reus of an
attempt
o when target crime is a “result” crime, the general rule is that a person isn’t guilty
of an attempt unless his actions in furtherance of the target crime are committed
w/the specific purpose of causing the unlawful result
- Actus reus:
o Last act test
o Dangerous proximity test
o Indispensable element test
o Probable desistance test (aka, point of no return test)
o Equivocality test: do D’s acts manifest intent?
o Substantial step test: MPC test
- Impossibility is not available as a defense for an attempted crime
o Factual: D’s intended end constitutes a crime, but attempt fails b/c of attendant
circumstances beyond his control
o Legal (pure): D attempted to break the law but was confused & what he was
doing really wasn’t against the law
o Legal (hybrid): D’s goal is illegal BUT commission of the offense is impossible
due to a factual mistake about the legal status of some attendant circumstances
Conspiracy
- Def’n: agreement b/t 2 or more people to commit an unlawful act or to commit a lawful
act by unlawful means
- Doesn’t merge
- CL: no act in furtherance of the agreement is necessary
- Specific intent crime requiring an intent to agree & intent to commit the target offense
Solicitation:
- Def’n: occurs when a person invites, requests, encourages, or commands another to
engage in criminal conduct
- CL: solicitor must desire that the OTHER PERSON commit the criminal act, not merely
that the other person assist in the commission of the crime
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-
No act further to the communication is necessary, only communication but it must be
received
Innocent instrumentality: if you lie to the solicitee, so that she thinks what she’s doing is
legal, you would be convicted of the crime itself, no solicitation
IX. RAPE
Common Law:
- Rape is committed if done:
o forcibly
o by means of deception
o while female is asleep or unconscious, or
o under circumstances in which the female isn’t competent to give consent
- Rape is a general-intent offense: D is guilty of rape if he possessed a morally
blameworthy state of mind regarding the female’s lack of consent
- Traditional rule: requires proof that both the female didn’t consent to the intercourse &
that the sexual act was “by force” or “against her will” resistance requirement
- More traditional rule: in order to prove force, female must physically resist the male, or
the male must use or threaten force on the present occasion to an extent that would cause
a reasonable female to fear grievous injury if she were to resist sexual intercourse
o Intercourse secured by a non-physical threat doesn’t constitute forcible rape
o No forcible rape occurs if a female accedes to intercourse w/a male simply “b/c he
is bigger than she is & she is afraid of him”
o Forcible rape prosecution is appropriate, even if female’s fears are unreasonable,
if the male “knowingly takes advantage of that fear in order to accomplish sex”
- Reformed law: offense has been broadened to include all forms of sexual penetration;
less reliance on a female’s resistance to the attack
- Marital Immunity Rule: it is not longer true that a husband can’t rape his wife
MPC:
- Male is guilty of rape if, acting purposely, knowingly, or recklessly regarding each of the
material elements of the offense, he has sex w/a female under any of the following
circumstances:
o female is less than 10 yrs old
o female is unconscious
o he compels female to submit by force or by threatening her or another person
w/imminent death, grievous bodily harm, or extreme pain or kidnapping
o he administers or employs drugs or intoxicants in a manner that substantially
impairs the female’s ability to appraise or control her conduct
- Doesn’t require proof of resistance by the victim
- Partial Marital exception: not rape if the female is his spouse unless the parties are living
apart under a formal decree of separation
o Extends to parties “living as man & wife,” although they aren’t formally married
- Rape is felony of 1st degree if
o D inflicted serious bodily injury upon the female or another in the course of the
rape OR
o the female wasn’t a “voluntary social companion” who had “previously permitted
him sexual liberties
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