••Nearly every crime in American requires four elements to be proven before a defendant will be
considered culpable. (1) the voluntary act (or ommission of a legal duty) [Actus Reus] (2) The
prohibited Mental State [Mens Rea] (3) Causation between the Defendant’s voluntary act and the
social harm trying to be prevented (4) and concurrence between the voluntary act and the prohibited
mental state.
[Actus Reus]+[Mens Rea]+[Causation]+[Concurrence]+Result (no result for attempt)+ attendant
circumstances= Criminal Liability…Unless Justification or Excuse.
I. Actus Reus : Voluntary act or omission.
*Every criminal offense must have an Actus Reus.
A. Thinking V. Acting
*At what point in formulating the idea of committing a crime can one be held
criminally liable?
Dalton-“Jailed on Precipice of crime” (Kid porn Sicko). D arrested for fictional
writings in his diary that involve child pornography. His lawyer never raises
the 1st amendment issues in the trial court and he is convicted. Thought crimes
are prohibited in American law.
-Must show a Voluntary Act or omission to hold someone criminally liable.
Voluntary V. Involuntary Acts
*One is not criminally liable for involuntary Acts. An involuntary act is one done during:

Reflex or Convulsion
Vining-epileptic seizure on subway, grabs woman while in sezure and is
convicted of assault. Appeal is upheld, conviction is overturned when he
produces evidence of his condition. ∆ not liable for assault. No Voluntary act.

Unconsciousness or Sleep
Decina- Epileptic seizure while driving, ∆ “blacks out” and kills several
kids with his car. ∆ knew he was at risk of seizure and chose to drive, taking a
substantial risk that he was aware of. “His awareness of a condition…and his
disregard of the consequences, renders him liable…”. ∆ convicted of negligent
homicide.

State Compelled
Martin- Police bring man out of his house, then arrest him for Drunk in
Public. Statute required a voluntary appearance in public. Because the police
lead him out into public, ∆ NOT criminally liable/ No Voluntary Act.

Otherwise not a product of conscious effort
* MPC also includes hypnosis as a defense
B. Omissions and Legal Duties
*Only exception to requirement of a voluntary act is a voluntary omission when there is a
legal duty to act. A person is criminally liable for failing to act only if the person has a
legal duty to act and is physically capable of acting.
*A legal duty to assist another does not arise out of a mere moral duty
A legal duty can be imposed in the following situations:
1. By statute – Such as failure to pay income tax, or failure to register when properly
notified by authorities.
2. By “special relationship” – (i.e. Husband to Wife, Mother to child)
Commonwealth V. Howard – Mother allows her boyfriend beat her child to
death. Mother is held criminally liable for failure to protect child. Woman stood in
direct relationship of parent to child with the victim, and thus had a legal duty to
protect the child.
People V. Beardsley – Man not held liable for the death of his party babe
because they weren’t married. Man had no Legal Duty toward the woman, and so
he was not compelled to seek help when she passed out from taking morphine pills
and drinking liquor.
3. By contractual relationship – Such as a contract for babysitter or care of elderly
individual.
Commonwealth V. Pestinikas – Husband and wife agree to care for elderly
man, accepting money from him. The man dies of starvation and dehydration when
he is neglected. Court holds they had had a contractual duty to care for him.
4. By voluntary assumption of care of another who needs help
People V. Instan – Woman found criminally liable for not caring for her elderly
aunt who she had assumed care of.
5. Where a person creates the risk of harm and fails to help
*Note: A legal duty does not arise out of a mere moral duty.
“No duty to rescue Rule” and “Good Samaritan laws”.
Iverson- David Cash not held liable for failure to help a young girl being assaulted and
eventually killed.
*Some states have created good Samaritan laws, requiring people to help in particular
situations.
Status offenses
1. Can not punish an individual for their status or condition.
Robinson V. California – ∆ convicted of being a drug addict. Court
held D could not be found criminally liable for simply being a drug addict. No
criminal liability for an “affliction”. Must show a voluntary act (doing drugs,
possessing drugs, etc…)
Powell V. Texas- Court would not allow a defense of alcoholism for a
charge of public intoxication, because the status of alcoholic was not being
punished, the act of getting drunk and being in public was being punished.
Status is not a defense when there is a voluntary act.
II. Mens Rea – “guilty mind”
A. Generally, a Mens Rea is required for each material element of a crime unless it is a strict
liability element or a jurisdictional element. Material element is an element relating to the
harm the statute is trying to prevent.
B. Statutory Interpretation – “canons” of statutory interpretation.
Must examine the goal of the statute, the intent of the legislature, the legislative history,
etc…
C. Common Law V. MPC
1. Common Law general definitions.
**includes a variety of words for Mens Rea. The words lack specific meaning outside
the case law of that particular jurisdiction.
Intent = Typically “Purposefully” or “knowingly”
State v. Fugate (OH Appeals Court, 1973). Gas Station Robber. Def robs gas
station and shoots attendant in the back in basement. Def argues that the shooting was
not done purposely. Court holds that mens rea of Intent can be established through
circumstances surrounding crime. Here they look at type of weapon (shotgun), relative
threat from Victim (Victim was 66 years old and frail), location of wound (Vic was shot
in the back), location where vic was shot(he was lead into a basement) and determined
that there was enough evidence under the circumstances to prove Def had mens rea of
Intent to kill.
Maliciously = Typically “Recklessly”
Regina v. Cunningham (Enlish Royal Court, 1957). Gas Meter Douchbag. Def
removes gas meter causing gas leak that endangers mother in law, charged with
Offense Against Person for maliciously endangering person's life. Court holds that
malice isn't wickedness, but rather that he could reasonably foresee the risk of harm
(MPC definition of reckless). Therefore, Court dismisses case.
2. MPC  general definitions
 Purposefully – The harm caused was the conscious object or goal of the
voluntary act.

Knowingly – D is practically certain that the harm will result from the voluntary
act, though it may not be his/her goal.

Recklessly - Gross deviation from standard conduct + Substantial and
unjustified risk + D was aware of the risk and consciously disregards it.

Negligently – Gross deviation from standard conduct + Substantial and
unjustified risk (D may not necessarily be aware of the risk).
D. Strict Liability
**Strict liability crime is one where no Mens Rea is required. D can be convicted
regardless of his/her mental state. Typically only one element of a crime will be strict
liability.
(a) Common Law jurisdictions - will generally examine each material element that
doesn’t have a Mens Rea written into the statute. Factors include:
-severity of penalty
-stigma of conviction
-Public health and welfare Law?
-legislative intent
-legislative history
Morissette v. United States (U.S. Supreme Court 1951). Bomb Shell Man. D
convicted of "knowingly" stealing bomb casings from gov. property. Court holds that
"knowingly" mens rea applies to both elements of the crime (stealing, and knowing it is
gov. prperty). Common Law Definition of Strict Liability. Courts outlines factors to be
weighed in determining if a crime was intended to be a strict liability offense. Court
holds theft is traditional C.L. offense, Stigma is high, Leg intent of mens rea inherent,
Thus property being govt owned not a strict liability element.
United States v. Yermian (US Supreme Court, 1984). Background Clearance Liar.
Def lies on his questionairre for a job requiring govt clearnce. Convicted of knowingly
lying on a govt document. Court looks at plain language of statute and legislative
history in determining that mens rea requirement of "knowing" does not apply to govt
entity part of statute because it is only a jurisdiction element of crime.
(b) MPC Jurisdictions - “absolute liability” only if the offense is
1. A mere violation
2. or if strict liability plainly appears in the statute
Commonwealth v. Barone (Superior Court of PA, 1980). Woman Crashes into
Motorcyclist. Def stops at stop sign, waits, goes, crashes into motorcyclist, kills him.
Def accused of vehicular homicide. Vehicular homicide statute doesn't include mens
rea requirement. Court holds that statute is not strict liability. legislature did not
expressly include strict liability language. Under C.L., the crime of homicide is
traditional C.L. offense with high stigma, severe punishment, Leg history shows no
evidence of intent to make it strict liability. Court inserts negligence as mens rea
because negligence is required mens rea of similar crime of involuntary manslaughter.
Therefore, Def not guilty of vehicular homicide because she did not act in a manner that
grossly deviates from reasonable person.
C. Transferred Intent
A defendant cannot be held liable unless they have the intent to do the specific
act. One cannot be held liable for burning a ship if they intended to steal rum.
But if one intends to kill A, and accidentally kills B, the intent transfers because
they still intended to kill another person.
D. Specific V. General Intent
General Intent Crime - Required mental state involves intent to commit act
Specific Intent Crime - Required mental state involves intent to cause the harm that the
act will produce.
[Key Words= “with the intent to…” “With the further purpose of…”]
People v. Atkins (Supreme Court of CA, 2001). Drunk Arsonist. Def gets drunk
and starts brush fire near rival's home. Def argues he was drunk and fire was accident
and arson is specific intent crime, therefore has intoxication defense. Court holds that
arson is general intent crime and thus intoxication defense is not valid. Arson statute
only required a mental state that entailed committing the act of starting the fire, not
intent to cause the resulting burning of structure/forest.
**Note** MPC will generally always require a Mens rea for each material element of a
crime. If one does not appear in part of the statute, they will drag the appearing Mens
Rea through to each element. No distinction between specific/general intent.
G. Willful Blindness
**When a crime requires knowledge mens rea, it can be satisfied if def is aware of high
probability or near certainty of truth and consciously avoids discovery of truth.
United States v. Jewell (US 9th Circuit, 1976). Willfully Blind Smuggler. Def
attempts to smuggle pot into US in a car. Claims didn't know what was in compartment
despite knowing that compartment existed, therefore negating mens rea of "knowingly."
Court holds that "knowingly" requirement can be met through "willful blindness"
because def deliberately avoided knowing the obvious. Willful blindness = knowledge.
III. Defense that negate Mens Rea
A. Intoxication Defense
(1) Common Law allows voluntary Intoxication to negate the Mens Rea of Specific
Intent Crimes, but not General Intent crimes.
People v. Atkins (Supreme Court of CA, 2001). Drunk Arsonist. Def gets drunk
and starts brush fire near rival's home. Def argues he was drunk and fire was accident
and arson is specific intent crime, therefore has intoxication defense. Court holds that
arson is general intent crime and thus intoxication defense is not valid. Arson statute
only required a mental state that entailed committing the act of starting the fire, not
intent to cause the resulting burning of structure/forest
(2) MPC allows:
 Voluntary intoxication to negate only Purpose or knowledge (must be
extreme intoxication)
 Involuntary Intoxication can negate any Mens Rea
B. Mistake of Fact
1. Mistake of Fact (Common Law)
**Distinguishes between Specific and General Intent elements of an offense.
Specific Intent Crime - Good faith belief = defense
General Intent Crime - Good faith belief + reasonableness = defense
People v. Navarro (Superior Court of CA, 1979). Mexican Stealing Wood
Beams. Def steals wood beams because he thinks they're abandoned and thought he
had permission. Common Law used here. If def has good faith belief property was
abandoned, then mistake of fact defense ok. Therefore not guilty of theft.
2. Mistake of Fact (MPC)
Under the MPC a mistake of fact is a defense if it negates the mental state required for
commission of an offense.
(1) What Mens Rea is required?
(2) Does the defendant have that Mens Rea?
Bell v. State (AK Court of Appeals, 1983). Underage Whore House. Def pimps
out underage girls and accused of 1st Degree Promotion of Prostitution. Def argues
didn't know girl was underage. MPC used here. Court says that mistake of fact exists,
but still guilty of 1st Degree Promotion because mistake involved an element of the
crime that statute made absolute liability.
**Note** If mistake of fact is applied and def still has Mens Rea and elements
for a lesser crime, then guilty of that lesser crime. (If age was not strict liability, def
would be guilty of 3rd degree Promotion)
C. Mistake of Law (Same for MCL and MPC)
**Generally, Ignorance of the law is not an excuse. 3 exceptions:
1. Reasonable reliance on an official interpretation.
People v. Marrero (NY Court of Appeals, 1987). Off-duty federal prison guard
convicted of possessing a loaded, unlicensed gun. Claims mistake of law defense,
because he believed statute exempted peace officers and was told by other police
and legal instructors that he was exempted. NY uses MPC, but with a modified
mistake of law rule. Court holds that mistake of law defense only applies when
statute (or interpretation) defendant relies on is later found out to be invalid or
erroneous. Because statute is not invalid, mistake of law defense doesn't apply, thus
defendant is guilty. Note: court used MPC rather than NY's modified mistake of law
rule to make this decision.
State v. Fridley (Supreme Court of ND, 1983). North Dakotan stupid driver.
Guy is arrested for driving with a suspended license. Claims mistake of law,
arguing that "Debbie" at the DMV told him his license wasn't suspended and he
relied on this. MPC used here. Appeals court held that Debbie wasn't an official
interpreter of law, thus no mistake of law defense. Supreme court holds that crime
is a strict liability crime, thus no mens rea required, and thus no mens rea to negate
through mistake defense.
2. Mistake or Ignorance that negates a Mens Rea – Where knowledge of the statute
is written into the statute itself. If one is charged with an offense which makes
knowledge that the prohibited conduct is unlawful an element of the crime, then one
can make a Mistake of Law Defense.
Cheek v. United States (U.S. Supreme Court, 1991). Tax-cheating Pilot.
Defendant is accused of willfully not paying taxes and not filing tax returns. Claims
mistake of law, because he was indoctrinated by a group that believed income taxes
were unconstitutional. Court holds that a mistake must be in good faith but not
necessarily reasonable. Court holds that D did not show good-faith mistake of law
(because he knew the law and the constitution, went to meetings, went to other tax
evasion trials). A Constitutional challenge is not a mistake of law. This is a specific
intent crime, which is why reasonableness is not required for the defense.
3. Fair Notice (the Lambert exception)
Lambert v. California (U.S. Supreme Court, 1957). Lambert is a felon and is
arrested for not registering with the city of Los Angeles as a felon. Court holds that
because it was an ommission offense and defendant was not aware of her duty to
register, she has not willfully violated the law.
The Lambert Exception. "Mere failure to register as a convict without knowledge of
the duty is a violation of due process." When a duty to register unaccompanied by any
activity, fair notice must be given.
State v. Bryant (Court of Appeals of North Carolina 2004). Sex offender from
South Carolina moves to North Carolina. Arrested for failing to register as a sex
offender with the state. Claims he didn't know about the law. Court applies Lambert,
stating that NC only notified sex offenders in NC prisons of duty and did not notify outof-state offenders and SC statement of duty to register was ambiguous about moving out
of the state.
IV. Causation and Concurrence
A. Causation – The Voluntary Act or Omission of the legal duty must cause the social harm trying
to be prevented.
**Two types of Causation must be proven.
(1) “But For” or Actual Cause
(2) Proximate Cause
(1) In order to determine whether the Defendant’s conduct is an actual cause of the
social harm, courts use the “But For” test.
*But for conduct, harm would not have happened.
Regina v. Martin Dyos (England Royal Court, 1979). Rival Gangs Fighting. Vic has
two potentially fatal wounds to the head, only one is cause of death. Cannot establish
which one. Def causes one of them with brick. Court holds that but for test not satisfied
because cannot establish Defs blow was fatal wound. (no way to say-But For ∆’s act,
the death wouldn’t have occurred)
**Note**
Joint and Coincidental Cause - If two acts cause harm that is equally fatal, and both
occur simultaneously, then all defs are equally liable. Didn't apply here because vic
could have survived at least one of the blows.
(2) The court must also determine whether the Defendant’s conduct was the
Proximate Cause of the social harm.
-When the conduct is the direct cause of the harm, then it is considered fair and
just to hold the Defendant liable.
-When acts or events come after the Defendant’s voluntary act, but before the
social harm, and contribute to the harm, the court must apply “intervening cause
analysis”.
Intervening Cause analysis:
Dependant/Responsive V. Independent (coincidental)
*Were the intervening causes dependant upon or responsive to
the defendant’s voluntary act.
*Or were the intervening causes independent of the defendant’s
voluntary act.
Commonwealth v. Rementer (Superior Court of PA, 1991). Cocaine
Couple GF Run Over. Def chases girlfriend all over town while beating her.
She runs toward passing car for help, runs her over. But for ∆ chasing her and
beating her, she would not be running away, by not running away, she would
not get run over. Chasing and beating is proximate cause because its
foreseeable that someone would try to escape, and foreseeable that chasing in
street would lead to vehicular accident.
If harm is reasonably foreseeable result of voluntary act/conduct, then
proximate cause exists.
State v. Govan (AZ Court of Appeal, 1987). Paralyzed Vic with
Pneumonia. Def shoots vic in neck and paralyzes vic. Marries vic, vic dies of
pneumonia 5 years later. Def charged with 2nd degree murder, convicted of
manslaughter. But for shot to neck, vic suffered paralysis, paralysis lead to
pneumonia, pneumonia lead to death. Def argues pneumonia is independent
interveneing action. Court holds that pneumonia is a dependent responsive
action resulting from paralysis (from shot to neck), therefore Proximate Cause
and chain of causation are maintained.
**NOTE** Examples of intervening causes:
 Refusal to get medical treatment- Doesn’t break causal chain
 Positive aggravation of injury- Usually doesn’t break causal chain, but can
if the acts are extreme
 Pre-existing medical condition- Doesn’t break causal chain—Must take the
victim as they are
B. Concurrence
Requires that The Mens Rea was both present at the exact moment of the Actus Reus
(temporal concurrence), and was the motivating force behind the Actus Reus (motivational
concurrence).
State v. Rose (Supreme Court of RI, 1973). Hit and Run with Dragging.
Def hits vic in vehicle. Not sure if Vic died upon impact or after dragging.
Rule: Def must have mens rea at the time of actus reus. Could not establish
mens rea at the time of impact, but if vic died after dragging, mens rea present.
If victim was killed upon impact, there was no evidence of culpable negligence
at that moment. Thus, mens rea concurrent with Actus Reas that caused “social
harm” cannot be established beyond reasonable doubt. Therefore, not guilty of
manslaughter.
V. Homicide
A. Modern Common Law
1. Murder (with “Malice Aforethought”)
1st Degree Murder
 Intent to Kill with Pre-meditation and Deliberation
*Premeditation: the process of thinking about and forming the intent to kill –
“Design to kill”. (may be formed in an instant)
*Deliberation: the process of weighing circumstances in going forward with
killing. Requires "cool mental state". (not formed in an instant…requires some
period of reflection).
State v. Brown. (Supreme Court of Tennessee 1992). Defendant father kills son
by beating him to death. Court holds that "multiple blows", prolonged assault during
course of a single act of child abuse is not enough to show premeditation and
deliberation. Over-ruling of earlier standard which treated "premeditation and
deliberation" as one thing that can occur in an instant. Also defines premeditation and
deliberation separately.
State v. Bingham (Supreme Court of Washington 1986). Defendant strangles a
retarded person while raping her. Takes 3-5 minutes for victim to die. Court holds that
fact that he had to strangle her for 3-5 minutes did not show premeditation and
deliberation because he was having sex and might not have been thinking about killing
her. Court raises the bar for showing P&D, holding that a time period alone is not
sufficient.

1st Degree Felony Murder
2nd Degree Murder
 Intent to Kill
*When the act of killing can be coupled with Mens Rea of purposely, but no
premeditation or deliberation can be proven.
State v. Brown
State v. Bingham

Intent to do serious bodily harm
Commonwealth v. Dorazio (Supreme Court of PA 1950). Court found that a
prizefighter who used his fists to beat a person to death had essentially used a
"deadly weapon" and thus guilty of murder. "Court may consider size of the
assailant, manner in which fists are used, ferocity of attack and its duration" in
determining whether bodily harm was intended.

Depraved Heart, or Abandoned and Malignant Heart Killing
Act by D exhibits extreme Recklessness, and a disregard of that harm which is known or should
be known to defendant.
“Egregiously Reckless Conduct” – Register Court
{High Magnitude of Harm + High Likelihood of Harm} = {Depraved Heart}
Commonwealth v. Malone (Supreme Court of PA, 1946). Russian Poker!
Teen kills other teen playing "russian poker." Kid has malice and is thus guilty
of murder if "he (1) commits an act of gross recklessness for which (2) he must
reasonably anticipate that death to another is likely to result." Because (1)
shooting a loaded gun at someone was a grossly reckless act, and (2) he should
have reasonably anticipated that his action could cause death, he has malice
and therefore is guilty of second degree murder.
State v. Davidson (Supreme Court of KS, 1999). Crazy Dog Case. Dog
owner has many big vicious dogs and doesn't train well. Neighbors and Sheriff
made owner aware that dogs escaped frequently and were aggressive. Dogs
escaped and killed boy. Rule: Unintentional killing but recklessly under
circumanstances showing extreme indifference to life. Owner was aware of risk
of dangerous dogs and that they escaped. She showed extreme indifference to
human life by not securing dogs, laughing when dog bit daughter/dog jumped at
officer, therefore guilty of 2nd degree murder.
examples of extremely reckless acts:
† Russian Poker
† shooting into occupied room
† Firing a gun over a person’s head
† Shooting into a moving automobile
† Driving a car into a crowd

2nd Degree Felony Murder
2. Manslaughter (No Malice Aforethought)
Voluntary Manslaughter
*Failed provocation defense results in 2nd degree murder conviction.

Any Murder other than Felony Murder + Partial Defense
[Either Provocation Defense or Imperfect Self-Defense]
‡Provocation Defense
General Requirements:
1. Killing must be committed in the heat of passion
Subjective Standard
2. The “heat of passion” must be provoked by legally adequate
provocation.
Objective Standard
3. No adequate “cooling time”
Subjective and Objective standard
Three Approaches to Provocation:
(1) Early Common Law (Categorical Test)
Killing must be in response to:
 Aggravated Aussault or Battery
 Observation of a serious crime against a close relative
 an illegal arrest (olden days citizen arrest)
 Mutual Combat (olden days dual)
 Catching One’s wife in the act of adultery
*Generally “mere words” is never legally adequate provocation.
People v. Ambro. (Illinois Appellate Court 1987). Example of an
exception to the "mere words" rule of provocation. Wife's taunting,
suggestion of infidelity and goading husband to kill her constituted
provocation. Reasons for exception included two-week-long series of
provocations culminating in the announcement of adultery.
(2) Modern Common Law (Reasonable Person Test)
*Says it should be left to a jury to determine if the provocation,
purported by Defendant, is such that it would arouse a state of passion in
an ordinary/reasonable person.
Jury must find:
1. Defendant acted in the heat of passion
2. The heat of passion was provoked by an act or event that would have
provoked any “Reasonable Person” (legally adequate provocation)
3. Defendant did not have sufficient time to “cool off”.
4. A Reasonable Person would not have had enough time to cool off.
*Modern Common Law allows for more “cooling time” (brooding
and/or rekindling of emotion)
*No specific type of provocation necessary.
*No specific type of emotion is necessary -- doesn't need to be anger, can
be any violent, intense, high-wrought or enthusiastic emotion.
People v. Berry. (Supreme Court of CA 1976). Crazy Israeli
husband/wife. Hubby strangles wife with phone cord. Court uses
"reasonable person" test to determine husband who killed wife was
provoked. Test: "If such a passion would naturally be aroused in a
reasonable person."
(3) Model Penal Code (Extreme Mental or Emotional Disturbance Test)
*Murder committed under Extreme emotional disturbance for which
there is a reasonable explanation or excuse.
*Determined from the viewpoint of the actor.
 No specific categories of provocation
 Broader test than “heat of passion”
 Doesn’t require provocation come from Victim
State V. Dumlao – Crazy Hawaiian keeps getting jealous and
has a paranoid personality disorder. Ends up killing his motherin-law. Court says from his perspective (crazy) he could have
been been under Extreme Emotional Distress (jealous rage) and
therefore provoked. Court held that D should have been allowed
a provocation defense to be submitted to a jury.
‡or Imperfect Self-Defense
Self-Defense theory where there was an honest belief that life was in
danger but the belief was not reasonable.
Involuntary Manslaughter
 Reckless Homicide
Less risk than Depraved Heart, but ∆ was aware of a substantial
and unjustifiable risk.
 Negligent Homicide
Generally, ordinary negligence is not enough. Gross Negligence
must be found. ∆s conduct grossly deviates from what a
reasonable persons conduct.
3. Vehicular Homicide / Vehicular Manslaughter
B. MODEL PENAL CODE
1. Murder
 Purposefully or Knowingly causing death of another

Recklessly with Extreme Indifference to Human Life
State v. Pears. (Court of Appeals of Alaska, 1983). Court holds that
drunk driving CAN be reckless with an extreme indifference to human life
and thus guilty of second degree murder (MPC). Defendant (1) grossly
deviated from reasonable behavior by driving drunk, running red lights and
speeding, and (2) he was aware of that risk when passenger and police told
him he was too drunk to drive. Note: MPC version of depraved heart killing.
2. Manslaughter
 Recklessly (without Extreme Indifference to Human Life)

3.
Otherwise Murder but carried out under Extreme Mental or Emotional
Disturbance for which there is a reasonable explanation or excuse.
Negligent Homicide
VI. Felony Murder
*Common Law Only*
 Felony murder is essentially a strict liability theory of murder. No Mens Rea is required for
the murder, only proof that the ∆ committed a felony, and that there was causation between the
felony and the killing.
A. First Degree Felony Murder (BARRK felony)
-Triggered when killing is during one of the enumerated BARRK felonies:
 Burglary
 Arson
 Robbery
 Rape
 Kidnapping
People V. Stamp- ∆ and others commit a robbery and a man has a heart attack and
dies. Court allows 1st degree felony murder even though there is a loose “but for” connection
between robbery and heart attack. Court says as long as the felony had a but for causal
connection, ∆ can be held liable under felony murder.
B. Second Degree Felony Murder (Other Inherently Dangerous Felony)
-Triggered when killing is during a felony (other than BARRK) that is both:
 Inherently Dangerous
 Does not merge with the underlying Homicide (merger doctrine below)
† Inherently Dangerous Felony
Q. What level of danger is required to show inherent danger?
Two Approaches:
(1) Abstract: Consider the felony in the abstract—does the commission of the
crime necessarily involve a danger to human life?
People V. Patterson-(sup. Court CA 1989)- Case involving the death of a woman while
doing cocaine in a hotel room. Man that was with her when she died (also sold her the cocaine)
is charged with felony murder. Court doesn’t rule on the case, but sets the rule and standard for
felony murder. Court says the felony must be viewed in the abstract, not to the particular facts
of the case. The felony committed must include a “high probability that death will result”. Case
is remanded.
(2) Circumstances: Consider the circumstances of the felony as committed by
this particular ∆. Did the way in which the ∆ carried out the felony involve a
danger to human life?
Hines V. State (Sup. Court Georgia 2003) – Drunk hunter case. Guy kills fellow
hunter accidentally while turkey hunting. Evidence of drinking and unsafe hunting practices. ∆
convicted of illegal possession of a firearm by a convicted felon (felony). Court says the rule is :
felony murder triggered by killing during felony inherently dangerous to human life. Inherently
Dangerous Per Se standard used. Looks at the circumstances of this particular occasion. In
this case, the circumstances surrounding Hines’ felony of possessing a firearm illegally (i.e.
drinking, unsafe shot at an unknown target, hunting at dusk, etc…) made the felony inherently
dangerous and triggered the felony murder rule.
C. Merger Doctrine
 The underlying felony must be independent of the homicide.


The underlying felony can not be an integral part of and included in the
homicide.
There must be an independent felonious intent for the act of the felony
other than commission of a homicide or intent to cause physical injury.
People V. Smith (S.Ct. CA 1984)- Case involving the killing of a child by abuse by
parent. Court says the jury can not be instructed on felony murder here. RULE: when
the felony is an integral part of the killing, and the facts of the homicide are in included
in the facts of the felony, then the two merge and there can be no felony murder
instruction. Here, the child abuse (the beating of the child) was the very same act of
the homicide itself. There was no independent felony, the two merged. No Felony
Murder allowed.
D. Res Gestae Requirement
 The killing must occur during the commission or attempted commission of the
felony. There are two elements of the Res Gestae Requirement:
(1) Temporal and Geographic proximity
 Homicide must be close in time and distance
 ∆ can not have reached a place of temporary safety
People V. Bodely (App. Ct. CA 1995)- Burglary committed at supermarket. ∆ hits a
person with his car in the parking lot while escaping; kills the guy. ∆ tries to argue
that he had completed the felony and the felony was over when his got out of the
supermarket. Court says…felony does not end for purposes of felony murder rule until
the perpetrator has reached a place of temporary safety. Court says the escape from
the supermarket was part of one continuous transaction of committing a burglary
which caused a death. Court concludes that the killing was done during an escape that
was part of one continuous transaction, ∆ convicted of felony murder.
(2) Causal Connection
 Courts vary as to what level of causal connection is required between the felony
and the death. Some just require a “but for”, some require something more.
 Generally, broad causal connection is sufficient (we didn’t read a causation case
here, so don’t get hung up).
E. Third Party Killings… Who was the killer/ who caused the death?
 Occasionally the issue arises: who did the killing that happened during the felony?
Was it the perpetrator of the felony? An accomplice? Or was the victim of the felony
the killer?
Two approaches are taken:
(1) Agency Theory: It has to be a felon, or a member of the party of felons that causes
the death for a conviction of felony murder.
State V. Canola (S.Ct. NJ 1977)- ∆ and 3 others were in the process of committing a robbery in
a jewelry store when the store owner pulls a gun and kills one of the felons. Court adopts the agency
theory, stating that a felony murder conviction is only proper where the killing was committed by one of
the perpetrators of the felony, and done in furtherance of the felony. Court says ∆ can not be guilty of
felony murder here because the killing was not committed by a member of the party of felons.
(2) Proximate Cause Theory: Any death that ensues as long as it is reasonably
forseeable
--In Canola, ∆ would have been guilty of felony murder because the death
ensued from the commission of the felony (the robbery).
SUMMARY
Ask these questions…analyze:
1. Can the ∆ be convicted of a felony?
2. Is the felony one that triggers the felony murder rule?
(a) If BARRK then 1st degree
(b) If not BARRK then potential 2nd degree if felony is both:
 Inherently Dangerous
 And Independent of the homicide (no Merger)
3. Is the Res Gestae Requirement Met?
Temporal and Geographic proximity + Causation?
4. Who Was the Killer? Who Caused the death?
(a) agency JDX
(b) Proximate cause JDX (any death that ensues)
5. Who was the victim?
6. Was the killing in Furtherance of the Felony?
VII. Attempt
[Actus Reus] + [Mens Rea] = Attempt. No result required.
A. Actus Reus
1. Common Law General Rule is that “Mere Preparation” is not sufficient.
*JDXs vary as to where they draw the line between mere preparation and attempt.
-Most common test used: Dangerous Proximity to Success Test.
 “Dangerous Proximity to Successful completion of the crime”…
People V. Rizzo (NY app. Ct. 1927)- case involved ∆ and others driving around looking for a
guy they believed would be carrying money to deposit at a bank. They planned to rob the guy,
but cops caught them first. Court says for conviction of attempt, it must be shown that the ∆s
acts “tending to the commission of the crime”, near to the actual completion of the crime. Court
identifies the dangerous proximity of success standard. In this case, even though ∆ intended to
commit the robbery, his acts were not close enough to its actual commission. They never came
within sight of the intended victim and were never in a position where they could have
committed the intended crime. There acts were not in dangerous proximity to successful
completion of the crime. No Conviction.

Acts that amount to commencement of the crime test…
People V. Staples (App Ct. CA 1970)- Case of the mathmetician turned bank robber. Guy rents
an apartment above a bank and begins drilling into the floor. Plans on robbing the bank. His
landlord calls the cops on him, and he is charged with attempt. Court uses similar “dangerous
proximity of success” standard, but states simply that it must be shown that the ∆s acts went
beyond mere preparation and that the acts amount to the commencement of the actual crime.
Court says by beginning to drill into the floor, ∆s acts went beyond preparation and his acts
actually commenced the crime of breaking into the bank. Conviction of attempt upheld.
2. Model Penal Code Much less stringent standard than MCL for attempt.
*MPC uses the Substantial Step Test.

Substantial steps taken toward completion of the crime that is strongly
corroborative of the actor’s criminal purpose…
Examples:
 Lying in wait
 Reconnoitering (casing the joint)
 Soliciting others to commit the crime
 Possession of materials with no lawful purpose
State V. LaTraverse (S.Ct. Rhode Island)- Case involving the undercover cop and the ∆ that
drives by his house late at night with materials to burn his car and a note that said “now its my
turn”. MPC JDX, court says ∆ took substantial step (gathering materials, writing note, driving
to his house) and the steps were strongly indicative that he was going to burn the car if the cops
hadn’t come. Court denies his abandonment defense because he only abandoned the crime
because he heard sirens.
B. Mens Rea
 General Rule in all JDXs is that Specific Intent; Purpose to commit the crime is
necessary for an attempt conviction.
People V. Harris (S. Ct. Ill)- Case involving the guy who shoots at his girlfriend as she is driving away.
∆ is convicted of attempted murder on a theory that attempt to commit serious bodily harm is sufficient.
Court says for attempted murder, the specific intent of attempt to kill is a necessary for conviction. Court
overturns conviction.
State V. Hinkhouse (App. Ct. OR)- Case involving the HIV philanderer. ∆ disregards warnings that he
could infect and kill women he has sex with, continues to have sex with lots of women. There was much
evidence that he knew what he was doing (he was warned by parol officer, signed a statement saying he
knew he could kill if he had sex). Also he used proptection with one women whom he “loved” but not
others. Court says his actions showed a purpose to kill. Conviction of attempted murder upheld.
C. Abandonement
MCL allows for abandonment almost right up until the completion of the Attempt.
Once the attempt is made however, No abandonment.
MPC allows for abandonment after the “substantial step” is taken, however the
abandonment must be:
 Voluntary- completely on the actor’s own volition (not because cops are
coming)
 Complete- Totally abandon the crime.
D. Impossibility
MCL:

Differentiates between Factual and Legal Impossibility
Factual Impossibility (NO Defense)-Where the crime is impossible because of some fact unknown to ∆.

Legal Impossibility (YES Defense)- Where the act, if completed, would not be a crime.
MPC:
 Imagine the facts are as the Defendant believed them to be.
 Ask if the Defendant would have committed a crime under those circumstances.
United States V. Thomas (Military Court 1962)- case with the guys that rape the dead girl after the
dance party. Girl died before they raped her, but they didn’t know she was dead. They are charged with
attempt, but argue that rape was impossible because she was dead at the time. Court adopts the MPC
approach: asks if the facts were as the ∆ believed (they believed she was alive) would they have
committed the crime? Yes, they believed she was alive and had non-consensual sex with her. If the facts
were as the ∆ believed, they would have committed rape. ∆s found guilty.
†Two exceptions:
1. When one tries to do something they think is against the law but it is not against the
law, No Attempt.
2. When the ∆s acts are so far away from commission of an actual crime that it does not
warrant any danger, then no Attempt (i.e. Voodoo Doll).
VIII. Complicity/ Accomplice Liability
A. Modern Approach
Two Categories:
(1) Principals (including Principals in 1st and 2nd degree, and accessories before the fact).
(2) Accessory After the Fact (any help in avoidance of being caught or punished).
*punished less
Elements of Accomplice Liability
 Actus Reus
-General Rule= Mere presence is not enough. Some affirmative conduct is required.
Pace V. State (S.Ct. IN)- Case where ∆ is driving with family in car. They stop to pick up a hitchhiker and his
friend pulls a knife and robs the hitchhiker. No evidence was shown that ∆ knew his friend was going to rob
H-hiker, no eveidence that ∆ encouraged or helped. Court says mere presence is not enough (no duty to act),
and for a conviction it must be shown that ∆ engaged in some affirmative conduct. In this case, ∆ was merely
present and there was no evidence other than driving the car that ∆ aided or even knew a crime was going to
be committed. No affirmative conduct, no conviction of complicity.
State V. Parker (S.Ct. Minnesota)- Case where guy ended up driving “Leventhal’s” car while L gets beat up
in the back seat. Court says inaction (presence) can be sufficient for accomplice liability if there are
circumstances that indicate ∆ approved of or assented to the commission of the crime. (court uses example of
the lookout). In this case, the ∆s close associations with the principal actors, plus he was apprehended while
fleeing with the principal actors, was enough to justify the conclusion that he assented to the crime committed
in his presence.

Mens Rea
-In both MPC and MCL, the ∆ must have the Purpose to assist in the commission of a
crime.
Wilson V. People- D.A.’s son tricks some smuck into thinking he is helping him rob a drugstore. Court says
for one to be held under a theory of accomplice liability, it is essential that they share in the Intent to commit
the crime. ∆ gets new trial because of bad jury instruction.
IX. Defenses
A. “Case-In-Chief Defense” (Prima Facie Case Defense)
 Defense argues that the prosecution has failed its burden of proof on at least one
essential element of the crime (attacks proof of actus reus, mens rea, causation, etc…).
o Mistake of Law
o Mistake of Fact
o Involuntary acts (unconsciousness, reflex, etc…)
o Intervening Causes
B. Affirmative Defense
 Defense that admits the prosecution has proved all elements of the offense,
but argues that the Defendant should be acquitted for some other reason. These
“other reasons” are affirmative defenses.
1. Justification Defense
• Defense argues that the Defendant did the right thing or took the most appropriate
action under the circumstances. Argument that the behavior was justified.
o Self Defense
 Crime was committed in defense of ones own personal safety
MCL:
[Honest] + [Reasonable] Belief that there is…
1. An imminent threat of unlawful bodily harm or death
2. It is necessary to use force to repel the threat
3. The force used is proportional to the threat (not excessive force)
= Complete Affirmative Defense
*NO duty to retreat (most jurisdictions)
*Reasonableness viewed objectively, only immutable characteristics of the
defendant can be taken into consideration.
Culverson V. State (S.Ct. NV 1990)- Drug Deal gone bad. ∆ convicted of 1st degree
murder at trial, this court overturns conviction, holds the trial court erred by not
allowing a self-defense. Court says even though the threat came from a pellet gun,
no actual danger required if it was reasonable to believe there was a threat. Court
also holds there is no duty to retreat if the deadly threat is imminent.
People V. Goetz (NY 1986)- Subway Vigilante case. Court says that the test for
“reasonable belief” was to determine if the conduct was that of a reasonable person
in the actors situation. That “situation” requires looking at some subjective factors.
-Movements of assailants
-Relative physical characteristics
-Relevant knowledge about assailants
Prior relevant experiences
MPC:
1. Relaxed imminence standard
2. Expands allowance of using deadly force to situations involving threat of rape
and kidnapping.
[Honest] + [Reasonable] belief= Acquittal
[Honest] + [Reckless in forming the unreasonable belief]= Manslaughter
(risk that belief is incorrect, aware of that risk)
[Honest] + [Negligent in forming the unreasonable belief]= Negligent Homicide
(risk that belief is incorrect, NOT aware of the risk)
o Imperfect Self-Defense (MCL)
[Honest] + [NOT reasonable] Belief of an imminent threat, necessary and
proportional force used to repel threat
= Voluntary Manslaughter
o Defense of Others
 Similar to Self-defense. Requirements:
1. Triggering Condition (Third person under Imminent attack)
2. Necessity of using force
3. Proportionality of force used (deadly force only allowed if threat was of death or
serious injury)
o Defense of Property
Generally, one is not allowed to use deadly force in defense of property.
• Note the fine line between defense of property and self-defense when you are
defending your home.
o Necessity
 “Choice of Evils”. Defense that argues the ∆ is justified because the crime
committed was the better of two evils. The crime is typically in response to a threat
from some force of nature.
Ex: Break into a cabin during a snowstorm.
Ex: Prison escape during a fire.
Elements of Necessity Defense:
1. Must face choice between two evils and choose the lesser evil
2. Threatened harm must be imminent
3. Reasonable belief the actions taken would avoid the harm
4. Must have no legal alternatives
5. NOT valid defense if there is a contrary legislative intent
6. NOT valid defense if actor created the danger
7. NOT valid defense of homicide
U.S. V. Schoon (9th Circ. 1991)- Court does not allow the necessity defense for
indirect civil disobedience. Case involved the protest at the IRS office. Court says
the actions taken by the protestor did not meet the requirements, and courts are
generally reluctant to allow this defense for indirect civil disobedience.
2. Excuse Defense
• Defense argues that the Defendant himself can not be blameworthy or culpable
because of some circumstance or characteristic outside the defendant’s control.
o Duress
 Defense that purports the crime committed was in direct response to a threat
from a specific individual.
Elements:
1. Must face a present, imminent and pending threat of serious bodily harm or
death (either to oneself or to another individual).
2. Reasonable and Well Grounded Fear that threat would be carred out unless the
crime was committed.
3. Cannot reasonably escape
4. Defense NOT valid if actor placed himself in the situation.
5. Defense NOT available for defense of Homicide
United States V. Contento-Pachon (9th circ. 1984)- ∆ not allowed a necessity
defense at trial. 9th Circuit reverses, says there is sufficient evidence to be submitted to
a jury. Columbian man is asked by drug dealer to swallow balloons of cocaine and fly
into the U.S. Drug dealer knows his wife and kids names, also knows where he lives.
Drug dealer threatens ∆’s family. Rule: Necessity defense requires (1) an immediate
threat of death or serious bodily injury (2) A well-grounded fear that the threat will be
carried out (3) no reasonable opportunity to escape. Court says (1) ∆ was told by drug
dealer that his family would be killed (drug dealer had there names and knew where
they lived) (2) The threat came from a credible source- drug dealer in Columbia (3) ∆
explained that the police were corrupt and he could not seek help/ escape.
o Diminished Capacity
 Mental Defect can be used to negate a Mens Rea (different from insanity
defense). Serious Mental Condition that wouldn’t allow ∆ to form the proper Mens
Rea
o Intoxication
MPC:
• Voluntary Intoxication- can negate Mens Rea of either Purpose or Knowledge. ∆
is required to show that the intoxication was so severe that they were incapable of
forming the mental state.
• Involuntary Intoxication- can negate any Mens Rea. Most useful for defense of
negligence (if intoxicated, how can one act like a reasonable person?)
Examples of Involuntary Intoxication:
˚ Under medical advice/ prescription
˚ Unexpected/ Improbable reaction
˚ Intoxication under Duress
People V. Register (NY App. Ct. 1983)- ∆ convicted of Depraved Heart Murder after
bar room incident. ∆ brought loaded gun to a bar, was involved in several confrontations,
and eventually shot and killed someone. ∆ presented mainly intoxication evidence at his
trial, convicted none-the-less. Appeals court says Depraved Heart Murder is reckless, plus
“…act was imminently dangerous and presented a very high risk of death to
others…Wanton indifference to human life…”. Court denies that Intoxication can negate a
“depraved heart/mind”, because the Mens Rea is still reckless, and Voluntary Intoxication
cannot negate reckless. “The element of recklessness itself…encompasses the risks created
by ∆’s conduct in getting drunk”.
(not responsible for MCL intoxication)
X. Justifications for Punishment
1. Specific Deterrence
 Punishment to deter the particular individual from committing the same or other
crimes in the future
* Based on the assumption that a criminal weighs the cost/benefit of committing crimes
2. General Deterrence
 Punishment to deter other individuals from committing crimes in the future
3. Incapacitation
 Punishment is designed to physically restrain the individual from committing any
crimes.
* What about crimes within the prison walls?
4. Rehabilitation
 Punishment is designed to reform offenders and allow them to become noncriminals
5. Retribution
 Punishment is designed to punish those who deserve it
* Unlike other justifications, retribution is not concerned with maximizing social
welfare.
People V. Suitte (NY App. Ct. 1982)- ∆ convicted of possessing an illegal handgun,
sentenced to 30 days in jail. ∆ is an upstanding citizen with no criminal record and
good reason for having the gun (ran a tailor shop in rough part of the Bronx). Court
affirms the jail sentence because the NY legislature intended for the new gun law to
have a General Deterrent Effect. Court says even though the ∆ was not a threat to
society, the seriousness of the law must be felt by others, as was intended by the NY
government.