Purposes of Criminal Law:
- Deterrence, Incapacitation, Rehabilitation, Retribution
Presentment and Indictment:
- 5th Amendment requires presentment/indictment by the grand jury b/f someone
can be held to answer (brought to trial) for capital / infamous crime
o Indictment = prosecutor asks grand jury to formally charge an accused w/
something
o Presentment = prosecutor asks grand jury for an indictment, and of their
own volition they come up with another charge
o Federal requirement ONLY (unless state constitutions so provide)
- This requirement applies when the possible punishment is capital or infamous, not
just the actual punishment. Moreland
o Hard labor is an infamous punishment
- Why?
o Don’t subject person to strain of trial, stigma of accusation w/o this
protection
o Don’t know, @ beginning of trial, what sentence will be – want procedure
to apply to beginning in case that sentence is imposed (not allowing
prosecutor to gamble)
- Definition of Felony:
o Federal: any crime for which possible punishment is death or >1 yr in
prison
o For state statutes: matter of interpretation; look at the purpose of the
statute using “felony.” Melton
 Some states might go by actual punishment
 Especially important where rights (like right to vote) @ stake
Standard for instructions on lesser crimes:
- When there is any evidence that would support a claim that D committed a lesser
crime, you have to give that jury instruction – Watkins
Homicide:
- The killing of one person by another person (suicide doesn’t count)
- Not a crime, in and of itself, but is a necessary condition for the crimes of murder,
manslaughter, and negligent homicide
- Murder & manslaughter are only homicides @ common law
- MPC encompasses murder, manslaughter, & negligent homicide
- Under MPC, general mens rea for criminal homicide (not an offense) is any of the
4 adverbs
Causation requirement for homicide:
- If an action does not change or alter the “natural progression” of V’s condition,
after the injuring act, then
o The injuring act caused death
o The later action was not an “intervening cause” and did not cause death
- D must proximately cause V’s death
-
Removal of life support does not break the chain of causation (less important
holding, when the brain death holding is factored in) – Arizona v. Fierro
Who is a person, for the purposes of homicide?
Beginning of life
- People v. Guthrie – a fetus is not a person for the purposes of homicide, unless the
legislature specifically says otherwise in statute
o Court agrees that fetus should be treated like a person, and changes the
definitions in wrongful death suits in tort; but, due to the difference btw
tort & crim (different purposes, different punishments, construction
deferential to accused) court doesn’t change the law
- MPC – Fetus is not a person, for the purposes of homicide
Life’s End
- Arizona v. Fierro – two ways to establish when death has occurred:
o Brain death
o Old common law way: cessation of breathing and heartbeat (pulse)
- Today, most jurisdictions use brain death as definition for when death has
happened
o Some do not, and have not adopted Uniform Brain Death Act
o Some only use brain death
- Time limit: the “year and a day rule”
o Death must occur w/in this time of original act, or can’t be prosecuted,
however death applies
o No longer applies in most jurisdictions, but CA has “3 years and a day”
rule
Corpus delicti requirement:
- Corpus deliciti = death + criminal agency of another
- For any homicide, prosecutor must prove CD + criminal agency of the particular
defendant – ONLY APPLIES TO HOMICIDE
- Prosecutor must prove CD independently of D’s statements/confessions
o Death can be proved by circumstantial evidence; the body, an autopsy, or
medical conclusions aren’t necessary. Warmke
o Evidence only has to be such that a reasonable jury could find another’s
(someone’s) criminal agency; need not conclusively prove it
o Only applies to out-of-court statements; in court statements are acceptable
to prove either element of the CD
 In court, you have the threat of perjury to protect against lying,
plus don’t have the risks of intimidation/coercion/duress by police
 When you have in-court testimony, “criminal agency of another”
and “criminal agency of D” can merge – can prove the first by the
2nd. Warmke
o So, can rely exclusively on confession to establish D’s identity as the
criminal
- Dispute is often as to the sufficiency of evidence to establish the CD, and not to
the rule itself. So, arguments are very fact-specific
-
Confession still useful to the prosecution, b/c you still need to establish the
identity of the criminal agent
Downey v. People – Evidence sufficient to establish CD without recourse to confession
when: CoD determined to be strangulation by pressure to the throat (most compelling
evidence); position of body makes it look like it was arranged, inconsistent w/ accidental
death; scalp wound, pressure applied to wrists and throat
Hicks v. Sheriff, Clark County – Evidence not sufficient to establish CD, w/o confession,
when: dead body found in desert, partly exposed; body was identified (military tags + sth
else); D seen w/ deceased shortly before death; D driving deceased’s car after death
Difference btw cases: sufficiency of evidence as to criminal agency of another. There is
evidence tending to show both death & that, if there’s criminal agency at all, it’s D’s.
Warmke v. Commonwealth
- Evidence that was sufficient to establish death:
o In-court testimony that baby was dropped in the river
o Otherwise unexplained disappearance (alone not OK)
o Evidence of baby’s hat, found at riverside
o Unlikelihood that baby could survive fall to river, submersion
o Even if baby survived, it would have been found
- Evidence to establish criminal agency:
o Knows that she dropped the baby (in-court testimony
o Hung onto coat, while baby fell
o Brought back the coat w/o mentioning baby
o Didn’t go where she was supposed to
o Didn’t report the “dropping”
The Homicide Crimes
Murder
- CL definition: homicide, with malice aforethought
o Malice does not have the common, non-legal meaning; doesn’t mean
“evil,” “ill-willed,” or “angry”
o “Aforethought” does not mean “premeditation” (although that can be
important)
o Premeditation is not essential to murder in general
- Ways of establishing malice aforethought:
o Intent to kill, not J/E/M (CL) – Errington
o Intent to do serious bodily harm, not J/E/M (CL) – Errington
o Or a “depraved heart,” not J/E/M
 Look to MPC articulation, defines it pretty well
 Depraved heart = “intentional doing of a wrongful act, from which
death may result” (Banks v. State, the train-shooting case) –
probably don’t mean that literally – too broad

-
-
Must be conscious disregard for peril, or probable peril, such that
one kills with “wanton and reckless conduct” or with “wicked
disregard” for consequences; complete disregard for social duty
(McLaughlin)
 Car accidents don’t sustain this “depraved heart” theory, even
though a person may have been violating a social duty while
speeding or driving drunk (McLaughlin)
 Need be no motive or animosity towards people killed; “depraved
heart” can be toward a group. Banks
 Need the J/E/M qualifier – depraved heart could be excused or
mitigated, even though it’s hard to see how it could be justified
Felony Murder Rule
o Death caused “in furtherance of the design to commit a felony” is murder
(Hokenson)
 Look at the actor’s design, purpose
 Problems arise when you start asking if the felon is guilty for the
cop shooting someone; conduct isn’t characterized as the cop’s
shooting, but as the felon’s original act that got the ball rolling
 So, it essentially devolves into proximate cause
o CA felony murder rule: guilty of “a homicide that occurs during the
perpetration of a felony,” which requires a continuous transaction
 For this one, proximate cause type analysis: were there many
intervening causes, how foreseeable were they, etc.
o Don’t really ever lead to different results, but both need to be analyzed
 Might be different results where co-felon dies; courts hesitate to
hold one co-felon responsible for the other’s death
o Not an “intervening cause” if a police officer tries to diffuse the situation
& someone dies (Hokenson)
o CA: the felony must in itself be inherently dangerous to human life, in
order for the rule to apply. It is not enough that the particular events of the
felony make it dangerous. Grand theft is not inherently dangerous
(Phillips)
o Also, must be independent felony, as under the 1st degree FMR
 Use the “purpose” test for this
o Effect of the Felony Murder Rule
 Under some, you might automatically be guilty of murder
assuming all of the elements are established
 Under others, it might set up a rebuttable presumption (like with
recklessness under the MPC)
o Felony murder rule can also be based on an attempt to commit a felony
 Can’t turn back the clock in common law
 MPC is explicit in allowing this
 Of course, if you renounced, there’s no longer a felony
MPC definition of murder & FMR, p. 216:
o Murder when one commits criminal homicide “purposely” or
“knowingly.” 210.2(1)(a) This covers intent to kill
o Part of “knowingly” might cover intent to do serious bodily injury, also
recklessness w/ extreme indifference might cover it. 210.2(1)(b)
o 1st sentence of 1(b) corresponds to depraved heart, “recklessly under
circumstances manifesting extreme indifference to the value of human
life.”
 Risk must be real, not theoretical
 Risk much be such that its disregard is a gross deviation from a
law abiding person’s standard of conduct
 Requires conscious awareness and disregard (subjective standard)
o 2nd sentence of 1(b) is the Felony Murder rule. Lists crimes that, if D is
engaged in them, recklessness w/ extreme indifference is presumed
 D can rebut this presumption
 D’s recklessness is also presumed (i.e. MPC felony murder rule
applies)if he’s an accomplice, attempting to commit (or
accomplice to attempt), or fleeing after a commission (or attempt)
of named felonies
 Crimes are: robbery, rape*, arson, burglary, kidnapping, felonious
escape
 MPC does not make the distinction about who your recklessness is
directed at, so it might be possible to find someone guilty for the
death of their accomplice, even if D didn’t intend that
o MPC makes murder a 1st degree felony
Distinguishing within the levels:
- Of Murder
o Murder 1 (First degree murder)
 “Willful, deliberate and premeditated killing”
 2 tests both require an intent to kill:
 Drum: Mind must be “fully conscious of its own purpose and
design” for deliberate
 You need to know how you’re going to go about killing
someone, but don’t need to be conscious of results
 Cornett: – must fully “weigh and consider” the consequences, as in
“do I really want to kill this person?”
 Contemplates 3 stages: purpose of killing, intent to kill, and
act; Need not be much time between 1&2 or 2&3, but there
needs to be time somewhere for the consideration
 Sometimes murder by torture, by explosives, or murder of a cop
will get you to Murder 1
 Felony murder rule, to get you to 1st degree murder:
 Drum: murder committed in the perpetration of / attempt to
perpetrate arson, rape, robbery, burglary
 Felony must be “independent”
o “Lesser included in fact” test – junk it
 Judge independence on the basis of the purpose test: if D’s
purpose in committing the qualifying felony was to kill or
inflict serious bodily harm, then the felony will not be
interpreted as “independent” for the purposes of the Murder
1 FMR
o Murder 2
 Everything that’s not murder 1 falls here
Manslaughter
- CL definition: any other homicide, w/o malice aforethought
- Getting to manslaughter:
o Top-down (murder, mitigated to manslaughter)
 Provocation (see below)
 Supposed to be value-neutral, not imply guilt on part of V
 Unjustified but honest belief in necessity of self-defense
o Bottom-up (something below manslaughter, raised)
 Misdemeanor-manslaughter rule
 Has nothing to do with whether something is classified as a
misdemeanor
 Rather, “misdemeanor” here means the same thing as
malum in se – the rule applies to deaths that occur during
the commission of mala in se offenses (does not apply to
mala prohibita offenses)
 Any requirement of inherent danger?
 What would otherwise be an innocent homicide, but with
recklessness
 Or, with criminal negligence, in situations in which criminal
negligence is part of the law for manslaughter (it is not in the
MPC) – see “negligent homicide”
 Difference of degree, not kind, between this and civil
negligence – Gross deviation from standard of care, rather
than regular deviation (Rodriguez)
 An ordinary person would have known of the risk that the
conduct could have resulted in death or SBI
 But doesn’t require consciousness of the risk, because
conscious disregard for the risk is recklessness, not
criminal negligence
- MPC definition of manslaughter, p. 217, 210.3
o A homicide, committed recklessly, or
 This is bottom-up, no mitigation, equivalent of involuntary
manslaughter
o A homicide that is otherwise murder is committed under the influence of
an extreme mental or emotional disturbance (subjective) for which there is
a reasonable explanation or excuse (objective).
 “Reasonable explanation or excuse” corresponds with the
“ordinary person” part of Farris.
 Reasonableness is as to mental disturbance, not killing.
 The reasonableness of the excuse is determined from the viewpoint
of a person in the actor’s situation, under the circumstances as he
believes them to be (objective, determination made by “a person,”
not the actor).
 MPC makes special dispensation for people who have a
belief not in accord with the facts, just asks if their beliefs
are reasonable; not the case with the “ordinary person”
standard of Farris
 This is the equivalent of voluntary manslaughter
o MPC grades manslaughter as a 2nd degree felony
- Misdemeanor/manslaughter rule: a homicide that occurs during the perpetration
of a misdemeanor is manslaughter
o In CA, as with the felony murder rule, the misdemeanor must be one that
is inherently dangerous to human life
o This gets you to involuntary manslaughter, at least for this statute
Provocation defense
- Leads to voluntary manslaughter
- Has subjective and objective component (so a coolheaded person is still guilty of
murder):
o Some extreme emotion caused D to lose his self-control, and
o An ordinary person in the same circumstance would have lost self-control
and not cooled. Farris
o The “passion” (extreme emotion) can be any kind of extreme emotion that
tends to make people lose self control. It need not be rage or anger,
though it cannot be revenge. Borchers
o The “extreme emotion” can mount over time. If the incidents happen over
time, but not with enough space for a cooling-off period to occur, then
provocation is preserved across time. Borchers
- Words alone are generally not sufficient to count as provocation, for mitigation to
manslaughter (Farris)
o Words + minor physical contact do not count as provocation (Farris)
o Words can provoke in some circumstances. Grugin
 They might tip an otherwise insufficient assault into provocation
territory, even if they don’t count as provocation in themselves.
 Words might be enough when they convey facts, the content of
which is sufficient to count as provocation (such as learning about
an adultery)
 This is accepted
 Might also count as provocation when the indignity of words is
equal to that of acts that can be held to provoke (“Fuck you” =
spitting on someone)
 This might not be accepted, in any jurisdictions
 Legomsky talks about a 3rd category of words (besides
insulting and information-conveying): threat
Distinguishing within the levels:
- Of Manslaughter
o Voluntary Manslaughter
 Majority view: Any manslaughter that results from mitigation




Minority view: M/S with the intent to kill – Williams
Manslaughter voluntary under both when provoked
Involuntary under both when reckless
Voluntary under majority but involuntary under minority when
there’s intent to do great bodily harm, mitigated
 Can’t have involuntary under majority and voluntary under
minority – logically impossible
o Involuntary Manslauther
 All other kinds of manslaughter
Negligent Homicide – Bier
- Only exists as a statutory crime, does not exist under CL
- Most states have such a provision, follow MPC & Bier
o In some, it’s limited to particular kinds of deaths (vehicular homicide)
o In states that have negligent homicide, the states mostly adopt the
reckless/manslaughter, negligent/NH distinction
o Some states are harsher: REGULAR negligence gets you to NH, criminal
negligence gets you to man
- It’s negligent homicide when criminal homicide is committed negligently
- Graded as a 3rd degree felony
- Negligence = Disregarding a risk of which one should have been aware, when this
disregard is a gross deviation from the standard of care
o Different from civil negligence as a matter of degree, not of type
o Do not need conscious awareness / disregard for the risk, that’s
recklessness
o Harm must be foreseeable, just as in negligence; a person of ordinary care
& disposition would have foreseen a risk of death or serious bodily injury
- An unreasonable but honest belief in a threat to one’s life can, in some
jurisdictions mitigate murder to negligent homicide. Watkins
Justification / Excuse / Mitigation
- Justification: what you did would otherwise have been a crime, but you had some
reason that made your actions permissible (self-defense)
- Excuse: Although you did not have the right to do what you did, the law will not
hold you responsible for the consequences of your behavior (insanity)
- Mitigation: reduction, because of some special circumstance. Doesn’t get you off
the hook altogether, although it may for one particular crime
Assault & Battery
Battery: The unlawful application of force to another
- Unlawful
o D must act with some specified state of mind; usually no more than
criminal negligence. In some jurisdictions, recklessness is required, but
very few would require intent (and that would mostly be for the
aggravated form

-
-
-
Remember, criminal negligence is more severe than normal
negligence
o Not privileged (e.g., by self-defense)
Application of force
o Doesn’t require contact (though it’s hard to imagine how this could
happen without one)
o Doesn’t require “harmful contact,” just unlawful application; don’t need
bodily injury
Grading (if there is any)
o Negligence might reduce a battery to a 2nd degree battery, other kinds
might be 1st degree. Foster (which deals with “assault,” but it’s really
battery).
Not every battery includes an assault (despite case language otherwise) b/c battery
does not require intent, and assault always does
Assault: 3 views
- An attempted battery, period
o Minority view
- An attempted battery with a present ability to complete that battery
o Minority view
o Present ability means actual ability – if D thought he could complete the
battery but could not, no guilt
- An attempted battery OR the tort definition of assault
o Majority view, also most prosecution-friendly
o Tort definition: D, either intending to cause or to threaten a battery, puts P
in fear of imminent harmful or offensive contact
- Main variables: what D thinks, what V thinks, what D thinks that V thought
Also, Jacobs – “every battery includes an assault” might be applicable on the exam, if
such a case arises (you have a battery but not assault under one of the 3 definitions, and
you’re trying to establish assault).
MPC, p. 248:
- Simple Assault
o A misdemeanor, unless part of a “fight or scuffle” by mutual consent
(then, a petty misdemeanor)
o Guilty of assault if you “attempt to cause … bodily injury”
 Similar to “attempted battery” for assault, but you’re attempting
bodily injury & not unlawful application of force
 No present ability requirement
o “Attempts by physical menace to put another in fear of imminent serious
bodily injury”
 Similar to the tort definition, but the person doesn’t need to fear
contact, or anything offensive. And it must be serious.
 “Physical menace” usually means “anything that would cause a
reasonable person to be fearful” – satisfies “reasonableness”
-
-
o Guilty of assault if you “purposely, knowingly, or recklessly cause[]
bodily injury”
 Battery incorporated into assault, but:
 Have to cause bodily injury, not unlawful application
 Also, criminal negligence is not sufficient, unless…
o Guilty of assault if you “negligently cause[] bodily injury to another with a
deadly weapon.”
 Negligence doesn’t suffice if it’s not with a deadly weapon
Aggravated assault
o Attempt to cause “serious bodily injury”
 2nd degree felony
o Attempt to cause bodily injury w/ deadly weapon
 Intent requirement reduced for this, b/c of weapon
 3rd degree felony
o Cause “serious bodily injury” purposely, knowingly, or RwEI
 Kind of like murder, but w/o homicide
 2nd degree felony
o Purposely or knowingly causes bodily injury with a deadly weapon
 Causation requirement reduced for this, b/c of weapon
 3rd degree felony
Reckless endangerment
o Recklessly engages in conduct which places / may place another in danger
of death or serious bodily injury
o Recklessness & danger (rebuttably) presumed if 1 knowingly points a gun
@ or in the direction of another, whether or not D knew it to be loaded
o Misdemeanor
2 basic elements of all crimes: actus reus and mens rea
Actus Reus
- Where there is no actus reus, person can’t be found guilty. Quick
- There must be a voluntary act for the actus reus; criminal liability can’t be based
on an unconscious or involuntary act. Decina
o But, even if the act that immediately causes the harm (epileptic seizure) is
unconscious or involuntary, actus reus can still be satisfied if you
knowingly put yourself in a position to cause harm (driving in the first
place). Decina
- Failure to act / an omission cannot constitute the actus reus. Jones.
o Exception: liability can be based on omission when a person has a legal
duty to act. Examples:
 Legally imposed duty, like by statute (pay your taxes)
 Status relationship duty (parent-child)
 Contract to provide care
 Voluntarily assume care of another and then seclude them so that
no one else can provide help
 If you created peril in the first place, might have a duty to rescue
-
o Assumption of duty is a voluntary act (but doesn’t mean it has to be a
voluntary positive act; can be voluntary negative act)
Some states have established a duty to act by statute (good Samaritan laws)
Mens Rea, General & Specific
- Mental part of the crime, required for all crimes
- Many criminal statutes don’t provide the mens rea requirement; courts must
determine
o Whether to read in a mens rea
o What mens rea to read in
- General mens rea:
o Required for every true crime, @ minimum
o Intent to do the deed that constitutes the actus reus (purpose, knowledge
are MPC equivalents), or some recognized substitue (recklessness,
negligence)
o Absence of exculpation (no justification or mitigation)
- Can classify all crimes as those requiring:
o Intent
 To do the deed that constitutes the actus reus
 To do something beyond that (specific intent)
o Some recognized substitute (recklessness, negligence)
- 1a) Intent: you intend a result if:
o You desire that the consequence occurs (i.e., purposefully)
o You know to a substantial certainty that your conduct will lead to a result
o Examples: Chicago RR (intent not to stop), Peery (intent to expose)
- 1b) Specific intent: particular intent for a particular crime, higher than the general
mens rea requirement
o Intent to do something in addition to the deed that constitutes the actus
reus
o Examples: Burglary (Dobbs), Larceny, Fraud (May)
o Attempts are also specific mens rea crimes
- 2) Recognized substitutes
o Ex: Negligent Homicide
- 3 situations where intent is important
o Where there is a particular statute
o Attempt to commit any crime requires an intent to commit that crime
o There are simply some crimes that require an intent to commit the actus
reus (Peery, Chicago railroad)
- MPC provisions:
o Purposefully, 2.02(2)(a)
 If element involves nature of conduct, he seeks to engage in
conduct of that nature (i)
 If element involves result of conduct, he seeks to cause that result
(i)
 If element involves attendant circumstances, he’s either
 Aware of the existence of such circumstances (ii), or
 Believes / hopes they exist (ii)
o Knowingly, 2.02(2)(b)
 If element involves nature of conduct, he is aware that his conduct
is of that nature (i)
 If element involves attendant circumstances, he’s aware that such
circumstances exist (same as purposefully, really) (i)
 If element involves a result of D’s conduct, D is “practically
certain” that the conduct will cause the result (ii)
o Recklessly, 2.02(2)(c)
 “Consciously disregards a substantial and unjustifiable risk that the
material element exists or will result from his conduct”
 The risk must be such that to disregard it involves a gross deviation
from the standard of conduct that a law-abiding person would
observe in that situation
o Negligently, 2.02(2)(d)
 Person should be aware of a “substantial and unjustifiable risk that
the material element exists or will result from conduct”
 Failure to perceive risk must be gross deviation from a reasonable
person’s standard of care.
Concurrence of Actus Reus and Mens Rea
- Must be a concurrence of actus reus and mens rea
- This doesn’t mean that they had to have happened at the same time, but that the
mens rea had to have caused the actus reus
o Decapitation case: 1st reading might be “this wasn’t done with the intent
to kill”
o But, there can be more than 1 act that constitutes the actus reus – if
administration of cocaine is part of it, then the concurrence requirement is
satisfied
 But for administration of cocaine, none of these other events would
have occurred
o Legomsky wouldn’t characterize this as a continuing mens rea; thinks this
way is a cleaner analysis
- Also, sometimes you can recharacterize the actus reus to establish a concurrence
o Ex: if the mens rea to defraud your insurance company by burning your
house down isn’t formed when the fire starts, you can characterize “not
putting the fire out” as the actus. Cali
o This is b/c Cali had a legal duty to extinguish, b/c he created the danger
- But, when a statute requires a crime to be committed with a particular mens rea, it
does mean that literally
Ex: Burglarly requires breaking & entering dwelling place @ night w/ intent to commit
another felony – really have to have the intent to commit that other felony when you
break in; can’t be established after the fact
Conditional Intent / Knowledge of Facts & Results
-
-
CL: Conditional intent will suffice to establish mens rea when the demand on
which the intent is conditioned is unlawful. Connors
MPC provision, 2.02(6) – purpose is established even though conditional, unless
“the condition negatives the harm or evil sought to be prevented by the law
defining the offense.”
o “The condition” = what has to happen in order for D to go through with
his act (for the intent to be effectuated)
o Legomsky’s example: a guy who takes a book home with the intent of
keeping it only if his isn’t at home. No larceny, b/c the condition (I will
keep it only if it’s mine) negatives the harm that the larceny statute seeks
to prevent (stealing & keeping what’s not yours)
Knowledge:
o CL Tests for knowledge – Beale
 Majority: subjective test: what D actually knows, not what a
reasonable person would know
 Minority: objective test: what a reasonable person would know
o Law assumes no one knows anything to 100% certainty; rather,
knowledge means believe, in terms of a high probability
o MPC: 2.02(7) – Knowledge of high probability
 If knowledge of the existence of a particular fact is an element of
the offense, then knowledge is established if the D was aware of a
high probability of the fact’s existence, unless D believed that it
did not exist
o When do you use 2.02(2)(b), “Knowingly,” and when 2.02(7)?
 2.02(2)(b) involves nature & results of conduct, attendant
circumstances
 Ex: will a gunshot kill this guy?
 2.02(7) involves belief in the existence of facts
 Ex: are the goods stolen
Strict Criminal Liability (Malum in se vs. Malum Prohibitum)
- Distinction:
o Malum in se – a crime that is wrong in and of itself
o Malum prohibitum – the thing is only wrong because there’s some statute
or regulation making it so
o Not all CL crimes are mala in se (but most are), and not all statutory
crimes are mala prohibita
- Affects:
o Whether someone can be guilty of a conspiracy (test changes for mala
prohibita conspiracies, see below)
o Misdemeanor-manslaughter rule
 Test isn’t “is it a misdemeanor,” but “is it mala in se (and not a
felony)” – rule doesn’t apply to mala prohibita offenses
o Burden & standard of proof not the same for civil offenses
- Malum Prohibitum offenses not thought of as pure crimes, more like “public
torts” that use the criminal machinery – The Queen v. Stephens, Olshefski
-
-
-
-
Look at statute, which will tell you if mens rea is required
o Problem: sometimes statutes don’t include mens rea – what to do? Must
decide whether legislature intended one to be red in, or intended to
exclude mens rea requirement
In deciding whether to read in mens rea, courts look at:
o The penalty imposed
 Almost never read statute as imposing SL if jail’s involved
 Except maybe jail b/c you didn’t pay a fine
 Also, if the fine’s large enough, unlikely to be SL either
o The social stigma imposed on the defender
o Reprehensibility of crime
o Also, it may be a factor if requiring mens rea for all those picky, minor
statutory violations might clog up the courts
o No real concrete majority view, other than to weigh (at least the first 3)
factors – otherwise, courts all over the place
Even if there’s evidence of legislative intent not to require mens rea for a crime, it
violates due process to imprison on the basis of vicarious strict liability –
Koczwara
MPC: 2.05, p. 744
o Culpability requirements of MPC don’t apply to “violations,” within the
Code, unless
 The definition of the offense includes the requirement
 Application of culpability requirement is “consistent with effective
enforcement of the law defining the offense”
o Culpability requirements don’t apply within other statutes (besides the
code), if a legislative purpose to impose absolute liability “plainly
appears”
o Regardless of existing law & unless a later statute so provides,
 If absolute liability is imposed as to a material element of any
offense & conviction is based on absolute liability, the offense is a
“violation”
 Even though absolute liability may be imposed, you can charge the
culpable commission of the offense – negligence is sufficient for
culpability
Mistake / Ignorance of the Law / Ignorance of the Facts
Mistake of law
- CL generally: ignorance of the law is no defense
o Ignorance of the law can be a defense if your ignorance of a particular
statute prevents you from forming specific intent. Cude, bigamy hypo
 Must be ignorance of some law other than the one defining the
offense – “I didn’t know this was illegal” doesn’t count
 Only applies to specific intent crimes, not general mens rea crimes
- For conspiracy to commit a malum prohibitum offense, ignorance of that law is a
defense: Benesch
o Conspiracy to commit MP offense requires 1) knowledge of the law
prohibiting the conduct, and 2) knowledge that your conduct violates this
law
o Conspiracy requires the knowledge that you’re agreeing to do what the
law regards as wrong, can’t have that specific intent if you don’t know of
the MP offense – but you can for mala in se offenses, b/c those are wrong
in themselves
o Also, when you’re charged with conspiracy, you’re charged with violating
the conspiracy law, so the “different law” exception applies too
- If the law is malum prohibitum, and too obscure to expect person to know about it
(and also maybe if the punishment is really steep?), then ignorance of the law is a
defense (Lambert exception)
- Minority & more modern view – if mistake prevents you from having that
mens rea, then it’s a defense
- Majority & older view – if the statute doesn’t establish a specific intent crime,
then there’s no defense, even if you have the “read in” mens rea
Mistake of fact
- At common law, different rules govern mistake of law & mistake of fact
- 3 part test:
o Must be mistake of fact (as opposed to law)
o Must be a reasonable mistake
o Mistake has to be such that your actions would not have been wrongful,
had the facts been as you thought them to be
 Does your mistake negative the knowledge that is an essential
element of the crime (mens rea)? Vogel
 Wrongful used to include noncriminal things such as premarital
sex, which might explain why mistake of age was not a defense to
statutory rape
 Today, “wrongful” means “criminal,” i.e. that if the person were
correct in their interpretation of the facts, wouldn’t be guilty of
another crime
- Mistake of age might not be a defense to statutory rape today, in all
jurisdictions
o Was in Hernandez, was not in Cash
- Burden is on D to prove mistake
- Often might have to establish whether a statute requires a mens rea or not, before
looking at whether mistake can be a defense
MPC
- MPC 2.02(9), p. 743 & 846 – Knowledge, recklessness, negligence as to 1)
whether conduct constitutes an offense, or 2) the existence, meaning, or
application of law determining the elements is NOT an element of any offense,
unless otherwise defined by statute / code (in other words, ignorance of the law is
no defense)
- Ignorance or Mistake, MPC 2.04, p. 846 (mistake of law & fact the same)
o Ignorance or Mistake a defense if:

-
Ignorance or mistake negatives any mens rea required to establish
a material element of the offense
 Law provides that the state of mind established by ignorance /
mistake is a defense
o Ignorance / Mistake not a defense if D would be guilty of another offense
had he been right. But in this case, D’s conviction is reduced in grade &
degree to that of the crime he’d have been guilty of, if he were right.
o Belief that conduct doesn’t legally constitute an offense is a defense when:
 Statute both isn’t known to actor & wasn’t published or otherwise
available before prior to conduct alleged, or
 D acts in reasonable reliance on statement of law, which afterward
is revealed as erroneous (lawyer’s advice doesn’t count here)
 D must prove this by preponderance of the evidence
MPC p. 858-859, specifically dealing with sexual crimes
o 213.6, mistake as to age
 If criminality depends on child’s being below 10, then mistake
(lack of knowledge / reasonable belief) is no defense. If the
criminality depends on child’s being below a critical age other than
10, it is a defense for D to prove, by preponderance, that he
reasonably believed the child to be above the critical age
o 230.1 Bigamy and Polygamy
 A married person is guilty of bigamy (misdemeanor), if he
contracts or purports to contract another marriage, unless
 D believes spouse to be dead
 D & prior spouse were living apart for 5 years, and during
this time D didn’t know spouse to be alive
 Court has entered a judgment purporting to terminate /
annul the marriage, and D doesn’t know that’s invalid
 D reasonably believes he’s eligible to remarry
 Other party – the plural spouse is guilty if he/she contracts with
another for marriage, knowing that the other thereby commits
bigamy or polygamy
Inchoate Crimes (Incomplete crimes) – Conspiracy, Attempt, Solicitation
- Always add in what the target crime is!
Conspiracy
Majority of jurisdictions:
- Agreement w/ someone else to commit unlawful act
o Today, “unlawful act” means crime
o Didn’t use to exclusively mean crime under CL:
 Civil offenses
 Conspiracy to do certain things could be crime, when the thing
itself would not be
- MPC: must agree with 1 or more other persons that 1 or more of them will
o Engage in conduct constituting the crime, or an attempt or solicitation of
the crime
o Agree to aid others in planning for the crime, attempt, or solicitation
- @ least 1 conspirator must commit “overt act” toward commission of crime
- MPC has same overt act requirement as CL, except maybe for 1st/2nd degree
felonies – 5.03(5), p. 539
Minority of jurisdictions:
- No overt act requirement
Why punish conspiracy? It increases chance of crime happening:
- Danger of group – not 1 person’s decision to abort
- Group mentality – people get pressured into staying with group
- One person pulling out might not be enough to stop
- Crime more likely to be successful w/ planning
- Proof problems of 1 person’s “intent to commit” don’t apply
- Agreement is the “first step” – law formalizes that, makes it the actus reus
- In society’s interest to deter such agreements
- After conspiracy, the group of criminals is in contact w/ each other
In order to be guilty of a conspiracy to commit a malum prohibitum offense, you need the
specific intent to commit that offense. Benesch. Requires:
- Knowledge of the underlying substantive law
- Knowledge of the facts that make conduct violative of the law
- Actual knowledge here can’t be predicated on “presumed to know the law”
Two needed to conspire. If you can’t have 2 people possibly guilty of conspiracy to
commit X crime, then no one can be guilty. Benesch
- Some limited exceptions (like “conspiring” with a federal agent)
Wharton’s rule: If a substantive crime necessarily requires 2 or more people for its
commission, then neither of them can be charged w/ conspiracy. Figueredo
- Rebuttable presumption of legislative intent; need not apply
- Typical examples: adultery, abortion, illegal sale
- Applies even if the group only agrees to commit the crime but doesn’t do it (so
the substantive crime is never committed)
- Flip of the rule: doesn’t apply when 1 of the conspirators could have committed
the offense alone
- Clarification: only applies to cases of logical necessity; doesn’t apply when crime
could only have been committed, as a practical matter, by 2 or more
o Example: fraudulent filing of tax returns in business partnership
- Exception to the rule: Wharton’s rule only applies when the essential participants
are the only people agreeing to commit the crime; if someone playing a logically
unnecessary role enters an agreement to commit a crime, all are chargeable with
conspiracy
The Exception to Wharton’s Rule, applied:
-
Majority of jurisdictions: if the # involved is greater than the statutory minimum
#, then the exception applies; all can be charged w/ conspiracy (count bodies)
Minority: Even if the # involved in the commission of the crime is greater than
the statutory minimum, Wharton’s rule still applies if all are playing a logically
necessary role – all guilty of substantive crime (and not through inchoate /
accomplice provisions)
Another defense to conspiracy (Gebardi): if:
- Crime frequently requires two or more willing participants
- Legislature intended not to punish one participant for the specific offense
- Then, that participant can’t be punished for conspiracy to commit that crime
Comparing Wharton’s rule and Gebardi:
- Both apply when: Crime necessarily requires 2 or more people, and statute
creating the offense exempts one from punishment
- Neither apply when: Crime does not necessarily require 2 or more, and statute
doesn’t exempt any party from punishment
- Wharton’s rule applies but Gebardi does not when: Crime necessarily requires 2
or more, but none are exempted from punishment
- Gebardi applies but Wharton’s rule does not when: No such situation exists
If you sell an otherwise lawful good, and you know that good is going to be used in the
commission of a crime, you’re not guilty of conspiracy. Participation is necessary; you
will be guilty of conspiracy if you have some stake in the outcome (getting a cut) or do
more than sell the good (install it, for ex). Falcone
- Probably applies to giving something away, too
- Caveat: If you sell a gun and you know the buyer is going to kill someone, then
you are guilty of conspiracy to murder b/c of the increased risk of harm
o A lot of contradiction / inconsistency in the case law as to this point
Pinkerton rule: A conspirator who does not himself commit the substantive crimes is
guilty of all of the substantive crimes committed in furtherance of the conspiracy, unless
those crimes are unforeseeable.
- A majority of jurisdictions + MPC reject this rule
o But, accomplices are guilty of the substantive crime
o And in most cases, conspirators will be accomplices
- Rule applies in federal jurisdiction, minority of state jurisdictions
o There is a further split, in these jurisdictions – some do not apply the
“unless those crimes are unforeseeable” exception
Attempt
All of the standard rationales for punishment apply
- In some states, punishment is not the same (probably a majority)
- In some, it is – MPC puts it in the “same” category, at least for grading
In some states, you can be punished for attempt and the crime
-
In some states, if you finish the act or finish commission, can’t be punished for
attempt
2 Necessary elements of attempt:
- Intent to commit a specific offense
- An act which is a substantial step toward its commission – Paluch
Under the MPC – 5.01(1), p. 490
- Must have the kind of culpability “otherwise required” for the crime
- Must:
o Purposefully engage in conduct that would constitute crime, if attendant
circumstances were as he believed them to be
 Ex: selling a bag of powdered sugar you believe is coke
o Do / omit sth w/ purpose of causing or belief that it will cause a certain
result without more from him, which result is an element of the crime,
 Ex: shooting where the guy isn’t sleeping
o Purposefully do / omit sth which, under circumstances as he believes them
to be, is a “substantial step” (see that part)
Attempt and assault: State v. Wilson
- You can have attempted assault where the definition is something other than
“assault = attempted battery”
- So if assault = attempted battery + present ability, attempted assault = attempted
battery, no present ability
- Likewise, if assault = tort definition, maybe you can have an attempt for that?
Action has gone far enough to constitute an attempt when the person has come within a
“dangerous proximity of success.”
- Synonyms for “dangerous proximity:” an act that constitutes a “substantial step,”
Paluch; an act “tending … to affect its commission,” Rizzo
- Preparation to commit an offense is insufficient to establish “substantial step” –
Paluch
- Courts are all over the place on what is sufficient for a “substantial step” as a
matter of law – hard to reconcile
o Gathering tools – enough for attempt?
o Travelling to place for commission of crime – courts differ
 Ex: Rizzo, not sufficient – chance they never would have found the
guy to rob
o Lying in wait – probably enough
- The degree of apprehension that the crime excites is a factor – more apprehension
makes it more likely D will have to turn back, therefore the closer you must get
for there to be a “dangerous proximity”
- Important question for dangerous proximity: did the person commit the “last act”
they thought was necessary for the crime? Mitchell
- The MPC on “substantial step, 5.01(2):
o Action must be “strongly corroborative” of criminal purpose
o Lists a bunch of actions that are sufficient as a matter of law; inclusion on
this list doesn’t intend to exclude other fact situations
Impossibility: defense to the crime of attempt
- Attempting to reconcile the facts of cases can drive you mad
- Test for guilt in attempt: if the alleged criminal succeeds in doing everything that
he intended to do, is he guilty of the substantive crime? Wilson v. State
o If he would not be guilty of the substantive crime under this test, then he
can’t be guilty of attempt
o If guilty of the substantive crime, that doesn’t end inquiry – have to look
to “dangerous proximity”
o Wilson
 Intended to change the numerals, and did change the numerals
 Wasn’t guilty of forgery
 Could articulate the intent differently
o Mitchell
 If he had done all that he intended to do (i.e. shoot him & kill him),
he’d be guilty of murder
o Rojas
 Intended to receive property, and did receive property
 But, they also intended to keep the property – they would have
done so if it was stolen
 Impossibility didn’t apply when police intercepted property and
then let the criminals “buy” it, “stolen”
 Not guilty of completed crime, however
o A lot hinges on how you articulate the intent; can articulate it in a way
favorable to either side
 Don’t apply legal labels – rather, ask factually what person
intended to do and ask if that person can be guilty
 Beyond this, it’s an instinctive judgment between P & D’s
articulations of intent, which is more convincing
- May be able to moot the impossibility issue by finding an attempt before the
crime became impossible, so long as there’s dangerous proximity
- Legal impossibility vs. factual impossibility
o Legal impossibility is a defense, factual impossibility is not
o Good conclusory labels
o Ex: a boy under 14 cannot be punished for rape – it is legally impossible
for him to commit rape – Preddy
 However, might be possible for him to penetrate a woman w/o
consent
o The old man is under no legal protection from rape, but only failed to
commit it b/c of impotence
o But, “legal impossibility” in Ovedio, b/c couldn’t be guilty of substantive
crime

Guy not guilty for attempt when selling fake heroin – he intended
to sell the object he sold, not heroin, & thus wouldn’t be guilty
under the test
o Again, the above test works better – if the old man did everything he
intended to do, he would have had unconsentual sex & would have been
guilty of rape – so he’s guilty of attempted rape
Solicitation
- Getting another to commit a crime, such as for payment
- The solicitation itself is the actus reus
- Can be guilty of this & the substantive crime
- The Gebardi exception to conspiracy might apply, might be transferable into
solicitation. For solicitation, many states say you can’t be guilty of solicitation
unless that person, if they went through with it, would be guilty of a crime. Have
to check to see whether the solicitee would be guilty of crime
- If you ask a person to commit a crime that would not be a crime for them (ex: no
mens rea), you can’t be guilty of solicitation
- MPC definition, 5.02, p. 491
o W/ purpose of promoting or facilitating crime,
o Encourages, requests, commands another to engage in conduct that would
constitute the crime, or which would constitute an attempt, or which
would establish other person’s complicity in commission / attempted
commission – 5.02(1)
o Doesn’t matter if solicitor fails to communicate, so long as his conduct
was “designed to effect such communication” – 5.02(2)
Incapacity, irresponsibility, immunity to solicitation or conspiracy, MPC 5.04, p. 491
- It is a defense that, if the plan were carried out, the actor wouldn’t be guilty of a
crime under either the substantive law or as an accomplice, 5.04(2)
- It is no defense that:
o Solicitor / conspirator, or the person with whom he solicits or conspires,
lacks a particular characteristic which is an element of the crime, so long
as solicitor / conspirator believes that has that characteristic, 5.04(1)(a)
o Person solicited / conspired with is irresponsible or has immunity to
prosecution or conviction, 5.04(1)(b)
Merger
- Either means:
o Can’t convict of two inchoate crimes for the same target offense
o Or, once the merger has occurred, one inchoate crime ceases to exist, so it
is not even chargeable
- At common law:
o Solicitation merges into conspiracy, attempt, and the substantive crime
o Attempt merges into the substantive crime (sometimes, see attempt sec.)
 Attempt absorbs solicitation
 Attempt and conspiracy do not merge
-
-
o Conspiracy and the substantive crime do not merge
 Conspiracy absorbs solicitation
 Attempt and conspiracy do not merge
o Substantive crime absorbs attempt, solicitation
MPC:
o 5.05(3), p. 492 – can’t be convicted of more than 1 inchoate crime
o Another provision (that we haven’t read) says you can’t be convicted of
any inchoate crime along with the substantive offense
Procedural rules vary from state to state
Grading crimes
- Inchoate crimes are of same grade / degree as the most serious of the target
crimes, 5.05(1), p. 491
- Except:
o No inchoate crime can be 1st degree felony – bump down to 2nd (5.05(1))
o If the inchoate crime is “so inherently unlikely to” lead to commission of
crime, court has discretion to downgrade or dismiss, 5.05(2), p. 491
Parties to Crime
- Common Law: numerous technical distinctions that we’re not responsible for
- Today, you are guilty of a crime if:
o You perpetrate it yourself, or
o You help or encourage someone else to perpetrate it
- Aider and abetter is guilty of substantive crime, regardless of whether:
o Crime is felony or misdemeanor
o Help rendered before or during the commission of the crime
- An accomplice cannot be guilty of any of the inchoate crimes as an accomplice
- Under the MPC, a person who would be an aider / abettor if the crime were
committed is guilty of attempt if the other person doesn’t commit or go through
with crime, 5.01(3), p. 490
- Accessory after the fact (helping escape apprehension or prosecution) much less
serious than the substantive crime itself; accessory is NOT guilty of substantive
crime
- For accessory after the fact:
o Have to render aid or assistance to the perpetrator after the offense has
been completed (offense must be completed)
o Mens rea requirement: need the knowledge that you’re aiding the person
and that the person had committed the felony
o For accessory after the fact to X, you have to analyze being an “accessory”
to each individual crime, if the person committed a lot of crimes. If A
helped B, ask what crimes A knew that B committed.
- You might be able to have an attempt to be an accessory after the fact
- Even if a person can’t be found guilty of a substantive crime in itself, as a matter
of law, a person can be guilty of that substantive crime as an aider and abettor
o Ex: “Boy under 14” rule about rape – does not apply when boy aids
another in raping someone
MPC pp. 568-569, deals with complicity
Liability for another (aider and abettor provision)
1) A person is guilty of an offense if he commits it, or another for whom he’s legally
accountable commits it
2) A person is legally accountable for another when
a. W/ kind of culpability sufficient for offense, he causes an innocent /
irresponsible person to engage in that conduct
b. Made accountable by the code, or
c. He’s an accomplice
3) A person is an accomplice when:
a. W/ purpose of promoting / facilitating commission, he:
i. Solicits another to commit it (MPC incorporates solicitation)
ii. Aids, agrees, or attempts to aid another in planning / committing
(MPC incorporates conspiracy)
iii. Having a legal duty to prevent the commission of the offense, he
fails to do so
b. He’s declared so by law
4) When causing a particular result is an element of the offense, an accomplice in the
conduct causing that result is a conduct in the offense, if he acts w/ the culpability
sufficient for commission of offense
5) A person who’s legally incapable of committing an offense himself may be guilty
if it’s committed by conduct for another for whom he’s legally accountable (see
(2)), “unless such liability is inconsistent with the purpose of the provision
establishing his incapacity”
6) When a person is not an accomplice
a. Unlike conspiracy & solicitation, just making an effort to thwart is enough
7) An accomplice can be prosecuted even though the main guy hasn’t been
prosecuted or convicted, or has been convicted of something else, or is immune,
or has been acquitted
Hindering Apprehension of prosecution, 242.3 p. 569
- This is the “accessory after the fact” equivalent, pretty much just says when a
person is guilty of the crime
- It’s graded substantially lower than the actual crime
Aiding consummation of crime
- Same deal, but is aiding another accomplish “unlawful object of a crime”
(laundering the profits)
Compounding
- Misdemeanor to accept “pecuniary benefit” to refrain from reporting the
suspected commission of offense, or information relating to offense
- It’s an affirmative defense if the person believed that this amount <= the amount
that the actor was due in restitution
o Ex: store owner agrees not to report a thief who returns the merchandise
Abandonment / Renunciation of Purpose
-
-
-
Neither MPC nor CL provides any defense to pulling out after the commission of
the substantive crime
o Once you commit the substantive crime, that’s it
o But if you don’t commit it, you don’t commit it
Common Law: once you go far enough to be guilty of any of the inchoate crimes,
nothing you can do afterwords will absolve your guilt
o You can avoid guilt by withdrawing before you go far enough to become
guilty of any of these 3
o However, if you’re involved in solicitation or conspiracy, and you
withdraw early enough, you might be able to avoid guilt for the
substantive crimes
o Don’t have to prevent crime to withdraw from solicitation / conspiracy,
but you do have to effectively communicate withdrawal – personally or
through another medium, give adequate notice. Peterson
Withdrawal sufficient to prevent accessory status:
MPC:
o “Complete” and “Voluntary” renunciation (5.01(4), but applies to all)
 Applies to all the inchoate crimes
 Not voluntary if:
 Motivated by circumstances not present / apparent when
actor began conduct, and
 Those circumstances make it harder to accomplish criminal
purpose, or increase chance of detection / apprehension
 Not complete if:
 Postponing crime to more advantageous time, or
 Transferring criminal effort to a similar objective / V
o Additional requirements (similar for all)
 Conspiracy, 5.03(6), p. 539
 Must thwart the success of the conspiracy
 Attempt, 5.01(4), p. 490
 Must abandon attempt or otherwise thwart success; this
implies that abandonment does thwart success (solo crime),
so crime must not occur for RoP
 Solicitation, 5.02(3), p. 491
 Must, after soliciting person, either persuade the person not
to go through with it or otherwise prevent commission of
crime
International Crimes
Reasons
- Retribution, Deterrence (most often general, not specific), Incapacitation,
- Probably not rehab, since these people will be in prison forever
- Take away blame from nationalities, impose on individuals
- Rule of law over vengeance is important internationally, not just w/in nations
Sources
- Treaties
-
-
-
o Basic rule of interpretation: when the meaning of a treaty is contested, you
are to go by the “ordinary meaning to be given to the terms of the treaty in
their context and in the light of its object and purpose”
o Negotiating papers are the equivalent of legislative history, but can only
be used for:
 To confirm the text
 To resolve language that is ambiguous or obscure
 To avoid results that are “manifestly absurd or unreasonable”
Customary International Law
o Binds nonparties; rules of treaty interpretation are now custom
o General and consistent practice of state, and
o Must arise out of a sense of legal obligation
o Question of how close to 100% of states do you have to get, for custom
General Principles
o Countries generally follow b/c they think it’s a good idea, but not obliged
to follow
Hierarchy:
o Treaties first, then customary law, then general principles
o Exception: Jus Cogens trump everything else
If you occupy someone else’s territory, you have the responsibility as an occupier to
maintain law and order, and with that responsibility comes the right to use force in its
maintenance
The substantive crimes
- Crimes against peace
o Other than “I wasn’t involved,” self-defense may be only defense
- War Crimes
o 4 geneva conventions, prescribing humane treatment of: soldiers captured
at land, at sea, prisoners of war, and civilians
o Common articles 2 and 3: p. 49
 2: When the conventions apply to international armed conflicts
 3: when the conventions apply to non-international armed conflicts
o Protected persons (p. 50, Geneva convention) – only applies to POWs:
 Persons who find themselves in the hands of 1) a Party to the
conflict or 2) an occupying power, either of which they are not
nationals
 Nationals of states that aren’t parties to the convention aren’t
bound by it
o Pp. 51-54, steps to be taken to safeguard protected persons
o P. 58, Art. 147 – defines grave breaches
o To find a war crime under the US statute for a civil war, have to have both
– fits under article 3 (to fit a civil war) and under 147 (grave breaches)
o 2 defenses that don’t work
 “I was just following orders” – so long as you knew or should have
known that what you were doing was illegal, you had a duty to
disobey

-
-
Doesn’t have personal knowledge of the events – it’s enough that a
person should have known
 Rank is relevant for both of these defenses, as to “should
have known”
Crimes against humanity
o ICC definitions (p. 34): “any of the following when committed as part of a
widespread or systematic attack directed against any civilian population:”
 Murder, extermination, enslavement, deportation/forcible transfer,
imprisonment/severe deprivation of physical liberty against IL,
torture*, sexual violence, persecution*, enforced disappearance,
apartheid, other inhumane acts of similar character
o “Directed against a civilian population” = course of conduct, multiple
commission of above acts against any civilian population, pursuant to / in
furtherance of a state/org policy to commit such attack
o Torture = intentional infliction of severe pain or suffering, but doesn’t
include such pain & suffering pursuant to lawful sanctions
o Persecution = intentional & severe deprivation of fundamental rights,
contrary to IL, by reason of identity of group (impermissible groups listed
in statute)
o Can have crimes in peacetime, but probably needs to be more spectacular
than common domestic crimes
o Don’t necessarily need governmental participation in crime to qualify
o This crime does not cover gender persecutions
o Not a subcrime of war crimes; set it down next to war crimes provision,
invent hypos, especially look at who the victims are
Genocide
o Elements (Convention, p. 70):
 Acts committed:
 Killings
 Causing serious bodily or mental harm
o US understanding #2: mental harm = permanent
impairment through torture, drugs, or similar means
(p. 73)
 Deliberately inflicting upon group conditions of life
calculated to bring apart its destruction, in whole or in part
 Imposing measures to prevent births w/in group
 Forcibly transferring children of group to another group
 With specific intent to destroy a group, in whole or in part
 US understanding #1: this requires intent to destroy “in
whole or in substantial part” (p. 73)
 Group must be national, ethnic, racial, or religious group
o Genocide, incitement, conspiracy, attempt, solicitation all punishable
o Major difference between genocide and crimes against humanity:
genocide requires specific intent to “destroy, in whole or in part” a given
“group”
Jurisdictional Authority / Specific statutes
- Principle of universal jurisdiction, articulated at Nuremberg:
o Every country has the power to try any individual for an international
crime; some commentators limit this to particular crimes
o Not without enabling legislation?
- Nuremberg (p. 4)
o Anyone who, acting w/in interests of Axis powers, committed listed
crimes
o Had jurisdiction over crimes against peace, war crimes, crimes against
humanity – but not genocide (though the Holocaust did motivate); crimes
listed violations on that page
o Not permanent or generic
o P. 60 – jurisdiction over certain crimes; didn’t have jurisdiction over
crimes divorced from wartime setting & not linked to any wartime
objective (i.e., pre 1939 Holocaust)
- Tokyo
o Parallel to Nuremberg, but text doesn’t say specifically what kind of
jurisdiction
- Allied Control Counsel Law No. 10
o Authorized each of the 4 Zone Commanders to arrest suspected war
criminals & to establish “appropriate tribunals” for their trial
o P. 60 – jurisdiction over crimes against humanity
- Yugoslavia
o Jurisdiction over all offenses committed in the former Yugoslavia from
1991 to present
o For Crimes against humanity, the crimes must be committed in armed
conflict – possibly more restrictive than Nuremberg, b/c you can’t connect
such crimes to preparations for war
- Rwanda
o Security Counsel resolution defined this tribunal’s essential elements
o Jurisdiction over crimes committed in Rwanda, or by Rwandan nationals
o Only has jurisdiction over crimes committed in 1994
o Jurisdiction over “genocide and other serious violations of international
humanitarian law”
o Contains no restrictive language about crimes against humanity, as in
Yugoslavia – but probably not a big issue b/c of the limited time window
- ICC
o Jurisdiction over genocide, crimes against humanity, war crimes
o Also over crimes against peace, but jurisdiction doesn’t attach unless
Security Counsel passes a resolution declaring a particular country as the
aggressor (so, citizens of 5 permanent member states can’t be tried)
o Jurisdiction over individuals who are parties, individuals who commit
crimes in the territory of state-parties
o National jurisdiction always has priority, except when:
 National legal system has collapsed, or

-
A national system refuses or fails to carry out its legal obligations
to investigate, prosecute, or punish
o US is not a party, but citizens of nonparty states are still subject to ICC
jurisdiction if the crime is committed w/in a party’s territory
o ICC definitions for war crimes: too many to list (pp. 36-40), apparently
narrower than the whole class of crimes, but to summarize:
 Grave breaches of Geneva Conventions of 8/12/1949
 Other serious violations of laws & customs of international armed
conflict, w/in IL framework – 26 listed
 For armed conflicts not of international character, serious
violations of common article 3 (acts committed against persons
taking no active part in hostilities)
 Other serious violations of laws & customs applicable in armed
conflicts not of international charcter
 Above 2 do not apply to “internal disturbances”
US domestic prosecutions
o For War Crimes
 Must be a grave breach of the Geneva Conventions
 1949 conventions as to laws of warfare
 Protocols to which US is a party (US not a party to 1977
protocols)
 Breacher or victim must be a member of the US Armed Forces or a
US National
o For Crimes Against Humanity – no domestic provision exists
o For Genocide:
 Replicates list of offenses above
 Punishes incitement (attempt, conspiracy, solicitation not included
in statute but are elsewhere in US domestic law)
 Definitions list: on p. 75
 Important definition: “substantial part” means “a part of a group of
such numerical significance that the destruction / loss of that part
would cause the destruction of the group as a viable entity within
the nation of which such group is a part.”
 Offense must be committed within US, or the alleged offender
must be a national
Statutory Interpretation
3 different approaches
- Plain meaning rule: follow the literal interpretation of the text
- The “Golden Rule”: Follow the plain meaning, but if the plain meaning produces
an internally inconsistent or an absurd result, then depart from it
- Social purpose approach: follow the interpretation that best effectuates the
purpose that the law was designed to further (Silverman)
o Danger – judge has more latitude to impose own personal morality
- Still have to interpret the plain meaning, what is “absurd,” or have to define the
social purpose (Ex: Whitney & voter fraud statute)
Elements to consider: words itself, legislative history, judicial precedent
HLA Hart:
- Deficiencies of language and human imagination prevent you from always having
an answer to legislative intent
- Can’t know what the legislature would have wanted for circumstances they didn’t
consider
Blackstone
- Judges overruling a statute is subversive to democracy (we probably wouldn’t
agree with this today)
- But, OK when judges disregard a statute on a collateral matter, b/c then they’re
dealing with something that the legislature didn’t anticipate
Views on Legislative purpose:
- There’s no such thing – Radin
- Of course there is – Landis
- Middle view – there is, but only use it when statute is ambiguous, and even then
confine search for legislative history to more reliable materials like committee
reports, thus 2 different questions:
o Are we allowed to look at legislative purpose?
o If so, what sources to discern legislative purpose?
Other Principles:
- Criminal statutes are to be construed strictly, rather than expanding possible
criminal liability – avoid finding people guilty when it’s not clear the law is meant
to punish them
- The expression of some is the exclusion of others
o Listing things in a statute excludes things not on the list
o Ex: Holy Trinity Church, bringing in ministers from abroad
- Ustem Generis: when there’s a list of specifics, followed by a generality, the court
will usually not interpret the general part literally, but will assume it’s only meant
to apply to the same types of things as the specific things enumerated
o But, general word does still have its own meaning. Caminetti
o Ex: “prostitution, debauchery, or other immoral purpose” Caminetti