Eitenne Criminal

Model Penal Code
- Created in the 1950s by the American Law Institute and adopted in 1962
- Meant to serve as a model for better penal code legislation
- Meant to fill in gaps in various state penal codes
Defendant is presumed innocent until proven guilty
Due Process Clause of the US Constitution (5th and 14th amendments)
- Requires prosecutor to persuade the fact finder “beyond a reasonable
doubt” of every fact necessary to constitute the crime charged
- The due process clause is necessary to command the respect and
confidence of the community in the applications of criminal law
- More social harm is caused by convicting an innocent man than by letting
a guilty man go free
- “Reasonable doubt” is a tricky term
o If you are the defense you want “reasonable doubt” to be small.
Therefore, if you have even the smallest doubt, the jury should
o If you are the prosecutor you want “reasonable doubt” to be a
substantial doubt
Owens v. State
Owens appealed his conviction of driving while intoxicated arguing that the
evidence was not legally sufficient to support a finding of guilt.
- A conviction upon circumstantial evidence alone is not to be sustained
unless the circumstances are inconsistent with any reasonable hypothesis
of innocence
- Because he was found not conscious at the wheel with an open can of beer
between his legs, 2 empty cans in the back, his breath smelled like
alcohol, his speech was slurred, and there was an alcohol restriction on
his license, the court found the totality of the circumstances were
inconsistent with any reasonable hypothesis of innocence.
- Upon completion of the state’s case, the defense may motion for a
directed verdict of acquittal
o By doing so, the defense asserts the presumption of innocence and
claims that the state has failed to overcome this presumption
o If the motion is granted, defendant is acquitted
o If the motion is denied, the defense presents its case
- At the end of the trial, the defense can again move for a directed verdict of
o If denied, both parties make closing arguments and the judge
instructs the jury on the principals of law that are relevant to the
o If granted, defendant is acquitted
On appeal, the standard is whether the trier of fact COULD have
REASONABLY reached the decision
o The belief is that the jury is in a better position to decide the facts
since it sees the evidence and has the ability to judge the
credibility of the witnesses
5th Amendment (Double Jeopardy Clause)
- Bars the government from re-prosecuting a defendant after a jury
- Gives the jury the power to acquit for any reason, even if the state can
prove their defense beyond a reasonable doubt
- The jury has the POWER but NOT THE RIGHT to nullify
o This means that a defendant is NOT ENTITLED to have the jury
instructed on nullification
- Who decides what criminal law is? At the grass roots level, the jury
State v. Ragland
Ragland was convicted of armed robbery and possession of a weapon by a convicted
felon. He appeals, arguing that the judge should have informed the jury of its power
to nullify
- Holding: the power of the jury to acquit, despite overwhelming proof of
guilt and the jury’s belief of guilt beyond a reasonable doubt, is not one of
the essential attributes of the right to trial by jury
Policy issues regarding jury nullification
- Against jury nullification:
o Where law are unfair, the proper prevention of injustice is to
revise those laws through the legislature, not to nullify
- For jury nullification:
o It prevents oppression by the Government
 Paul Butler argues that African-American jurors should use
nullification to acquit defenders of victimless crimes based
on a cost-benefit analysis
Factors to be considered by the jury in determining whether to acquit:
- The personal characteristics of the defendant
- The degree of harm caused by the defendant
- The jurors’ belief that the victim was partially at fault
- Their view of the morality or wisdom of the law that defendant violated
Their belief that defendant has been punished enough or that violation of
the offense carries too harsh a penalty
Their perception that the police of the prosecutor acted improperly in
bring the case
MPC 1.02
- Lists the general purposes of the provision governing the definitions of
- Lists the general purposes of the provisions governing the sentencing of
- The principal of lenity is set forth
MPC 1.04
- An offense for which a death sentence or imprisonment is authorized is
considered a crime
- Crimes are classified as felonies, misdemeanors, or petty misdemeanors
- Felony: crimes for which a sentence of death or imprisonment over 1 year
is authorized
- Misdemeanor: If it is designated by the code OR any offense declared by
law as a crime without specifications to the grade
- Petty misdemeanor: Crimes for which the maximum imprisonment is less
than one year
MPC 1.06
- Felony (minimums are set by the court)
o 1st degree: not less than one year nor more than ten years, max is
life imprisonment
o 2nd degree: not less than one year nor more than three years, max
is ten years
o 3rd degree: not less than one year nor more than two years, max is
five years
Stare Decisis – The respect for precedent
US Constitution – Bill of Rights
- 2nd Amendment: Right to bear arms
- 4th Amendment: Prohibits unreasonable search and seizures
o Limits what officers can do at the time of arrest
- 5th Amendment:
o Due Process
o Notice (know what you’re being charged with)
o Proof beyond a reasonable doubt
o No discriminatory legislation
o No double jeopardy
o No ex post facto laws
 Criminal law is NOT retroactive
o Right against self discrimination
o Right against self incrimination
6th Amendment: Right to a jury trial
o Confrontation – right to confront the witness
 Exception: Rape shield laws
8 Amendment: Prohibits cruel and unusual punishment
13th Amendment: bars slavery and involuntary servitude except as
punishment for crimes
14th Amendment: makes all other amendments applicable to States
- Jeremy Bentham
- Augmenting happiness: the general purpose of all laws is the augment the
total happiness of the community by excluding everything that subtracts
from happiness (everything that causes pain, mischief)
- Role of punishment:
o Sees both crime and punishment are evils because both result in
pain the individuals and to society as a whole
o Weighs the pain to the criminal by punishment against the pain to
society in letting him go unpunished
 DOES NOT punish because of prior wrongdoing, but in
order to prevent FUTURE wrongdoing
- Forms of Utilitarianism
o General deterrence
 Knowledge that punishment will follow crime deters
people from committing crimes
 It follows that an increase in arrest and conviction
are a greater deterrant than an increase in the
severity of punishments once convicted
o Specific deterrence
 Criminal is punished in order to deter specific criminal
from committing future criminal acticity
 Punishment serves as a painful reminder so that, upon
release, criminal will be deterred
o Rehabilitation
 Preventing future crime by reforming an individual
 Providing employment skills, psychological aid, etc.
so that criminal will not want or need to commit
offenses in the future
- Underlying premises
o People want to augment their personal pleasure and avoid pain
o A potential wrongdoer will weigh the pleasure of committing the
crime with the pain of punishment
 A rational person would not commit the crime if the
probability of being caught * the punishment likely to be
received is greater than the benefit
o Punishment is a mischief to society that should not be imposed
unless it will result in a net benefit to society
- Immanuel Kant
- Just deserts – an eye for an eye
o Punishment of a criminal is justified as a deserved response to a
o Punishment because of the wrongdoing, regardless of whether the
punishment will deter future crime
- Rationale
o Wrongdoing creates a moral disequilibrium in society since the
wrongdoer obtains the benefits of the law (others have respected
his rights) but he does not accept the law’s burdens (respecting
others rights)
 “paying his debt” brings him back to equilibrium (his rights
= others’ rights)
o Moral culpability gives society the duty to punish him
o Both crime and punishment are messages
 A wrongdoer sends a message that his rights are more
important than others’ rights
 Punishment shows the criminal (and his victims)
that this message was wrong
- Underlying premise
o Humans possess free will
 If a person has committed a crime using free will,
punishment is justified
 If a person does not exercise free will, punishment is wrong
“Limiting Retributivism”
- For sentencing
- Lawmakers make a rough estimate of a proper retributive punishment for
an offense by coming up with a sentencing range, and then setting the
actual punishment within the proportional range based on utilitarian
Queen v. Dudley and Stephens
Dudley and Stephens kill Parker after being stranded on the high seas in a lifeboat
- Homicide may not be excused when the person killed is an innocent and
unoffending victim
This is a necessity case. Necessity does not allow the taking of an innocent
o They could have drawn straws
o Self-defense is the only law of necessity that permits the taking of
a human life. The aggressor is not an innocent life
 At common law, neither duress nor necessity is a defense to
o Weighing the better for society, it seems that the death of one man
is better than the death of three, however, the courts weigh the life
of Parker against the life of any of the three men
o Their death sentence was eventually commuted to six months
The relationship between courts and the legislature is prescribed by 3 doctrines:
1. The Principle of Legality
o Condemns judicial crime creation
2. Void-for-Vagueness
o Forbids legislative delegation or law making authority to the
o May fail to provide notice that will enable ordinary citizens to
understand what conduct is prohibited
o May authorize and even encourage arbitrary and discretionary
o Principle was used in Chicago v. Morales
3. Rule of Strict Construction
o Judicial resolution of uncertainty must be ruled in favor of
o In a tie, judgment is for defendant
o Note: rarely used because judges don’t like to admit that they
“don’t know what to do”
o Principle was used in Keeler
The Principle of Legality
2 main points:
1. A crime must be considered a crime before its committed
2. The Principle of Legality exists to enforce a separation of powers
- It is morally unjust to punish a person whose conduct was lawful when
she acted, because she did not choose to violate the law
- The law cannot have the desired deterrent effect unless people know that
they are violating the law
- Retroactive prosecution, conviction, and punishment of a person permits
the government to punish its enemies and is not ethical
Ex Post Facto
- Legislatures are prohibited from enacting laws that punish conduct that
was lawful at its commission of by increasing punishment for an act by
the 5th amendment
Due Process
- Courts are prohibited from enlarging the scope of a criminal statute
- It is the role of legislatures to enact criminal laws and the enlargement
exceeds the judicial authority – separation of powers
3 ways to violate the Principle of Legality:
1. There is no statute
2. The statute can be interpreted in multiple ways
3. The statute is purposefully vague
Reception Statute
- Legislatures wrote down everything they thought was a crime and what
they thought the punishments were
o In reception statute states, anything that the legislature did not
think to mention that is illegal at common law is still illegal
- Violates the Principle of Legality?
o Statute could be too vague as to not identify illegal conduct
o Statue could be too broad that it encompasses too much
- This is seen in Mochan
Commonwealth v. Mochan
Defendant was found guilty of intending to debauch and corrupt and intending to
harass, embarrass, and vilify Louis Zivkovich for obsessive obscene phone calls.
- Argues that because his conduct is not statutory crime, he cannot be
legally convicted because his actions are a crime at common law
- Case takes place in PA, a reception state
- Judge Woodside dissents saying that majority declared something a crime
that had never been considered a crime and overstepped its authority
Keeler v. Superior Court
Keeler assaulted his wife by shoving his knee in her stomach with the purpose of
killing her unborn infant and was charged with murder
- Under common law at the time, an unborn fetus was not considered a
“human being”
- The court decided that it could not declare an unborn fetus to be within
the murder statute because it would exceed its authority
- Would also violate the defendant’s right of due process
- Keeler was not charged with murder but shortly after, California changed
its murder law to include a fetus
City of Chicago v. Morales
Supreme Court reviews the constitutionality of Chicago’s ordinance prohibiting
“criminal street gang members” from “loitering” with each other in a public place.
Defendant argues that the ordinance is too vague. “Void-for-vagueness.”
He wins
Statue in unconstitutionally vague since it fails to give notice regarding
the type of conduct prohibited
Citizens should not have to speculate regarding the meaning of the law –
what constitutes loitering?
Two elements (both must be proved by the prosecutor)
1. Voluntary act or legal omission (Actus)
2. Conduct results in social harm (Reas)
Two kinds of Actus Reas
1. A voluntary Act
2. An omission of an act that is a legal obligation
Voluntary Act
- There must be conduct. A person is not prosecuted for thoughts alone.
- Common Law:
o A voluntary act is a “willed muscular contraction or bodily
 “Willed” means the bodily movement was controlled by the
mind of the actor
 Seizures = involuntary
 I raised my hand vs. my hand came up
- MPC:
o Doesn’t define voluntary but provides examples of involuntary
 Reflex or convulsion
 Bodily movement while unconscious, asleep, or under
 Body movement that is not a product of determination by
the actor
- Coerced Acts are still voluntary
- Crimes of possession – On its face, don’t require proof of an act by
o Solution: possession can only occur if the person voluntarily takes
control of an object (act) or fails to dispossess himself of the object
after he becomes aware of it (omission)
- A person’s actions must INCLUDE a voluntary act. It is not necessary that
all aspects of their conduct be voluntary
Martin v. State
Defendant was arrested and taken from his home. He was then charged with “being
drunk and appearing on a public highway.”
- Criminal liability must be based on conduct which includes a voluntary
act or omission
- The Actus Reas is “appears” … on a public highway. The defendant did not
voluntarily appear on the highway, therefore, he cannot be convicted.
State v. Utter
Defendant stabbed his son to death. He claims that because he was drunk he was in
an unconscious state and that a conditioned response caused him to act violently
towards people who came up behind him unexpectedly.
- An act committed in a unconscious state is no act at all (no criminal
liability), but when the state is brought on voluntarily by alcohol or drugs
it may not be a complete defense
- There is no evidence from which the jury could infer what happened in
the room at the time of the stabbing
- Defendant’s conviction of manslaughter is confirmed
- General rule is that a person is not guilty of a crime for failing to act, even
if such failure permits harm to another and even if a person could act
without risk
- Common Law and MPC – “Liability for the commission of an offense may
not be based on an omission unaccompanied by actions unless:
o The omission is expressly made sufficient by the law defining the
o A duty to perform the omitted act is otherwise imposed by the law
- Rationale
o Criminal conduct requires a guilty state of mind (mens reas) and it
is too difficult to determine the state of mind of one who fails to
o The law should be used to prevent persons from causing harm to
others but not force people to act to benefit others
o A person has a legal duty to act in limited circumstances if he is
physically capable of doing so.
o Common Law Standard set forth by Jones v. United States
o Duty to act:
 Duty by Statute
 Duty by Status; “special relationship”
 Parent to child, spouse to spouse, master to servant
 Duty by Contract
 Babysitter, lifeguard
 Duty by voluntary assumption: One who voluntarily
assumes the care of another must continue to assist if
subsequent omission would place the victim in a worse
Duty by risk creation
People v. Beardsley
Defendant was spending the weekend his mistress (not his wife) and failed to get
medical treatment for her when she took a fatal overdose of morphine. He was
charged with manslaughter but conviction was reversed.
- Defendant DID NOT have a LEGAL duty to save his mistress (although he
did have a moral duty)
- An omission without a duty does not satisfy the actus reas of the crime
Social Harm
- The destruction of, injury to, or endangerment of some socially valuable
- The criminal law does not punish people for just conduct or omissions, it
punishes people for conduct or omissions that result in social harm
- Society brings prosecution because it is the community as a whole that is
considered to have been harmed
- 3 categories
o Result Crimes: Crime that prohibit specific results
 I.E. “the death of a human being”
o Conduct Crimes: Crimes that prohibit specific conduct whether or
not tangible harm results
 I.E. “driving under the influence”
o Attendant Circumstance Crimes: A result or conduct that is not
typically criminal unless certain attendant circumstances exist
 I.E. Murder: “the death of a human being.” The human being
is the attendant circumstance. It is not murder to kill a dog.
2 meanings:
1. Broad “culpability” meaning
 A person has acted with mens rea in the broad sense if she
committed the actus reus of the crime with a “vicious will,” “evil
mind,” or “morally blameworthy” or “culpable” state of mind
2. Narrow “elemental” meaning
 Mens rea exists in the narrow sense if, and only if, a person
commits the actus reus of the crime with the specific state of mind
required by the definition of that offense
Rationale for Mens Rea
- Utilitarian: A person who commits the act without mens rea is not
dangerous, cannot be deterred, and is not in need of reform
o Counter argument: people should be encouraged to act with
greater care
Retributive: A person who commits the act without mens rea is not
morally blameworthy and does not deserve to be punished
Mens Rea at Common Law
- Intentionally
o A person commits the social harm of an offense if:
 It was her conscious objective to cause the result
 If she knew that the harm was virtually certain to occur as a
result of her conduct
o Subjective fault
 Must look at the actor actual state of mind
o Transferred Intent Doctrine
 A person acts intentionally if the result of her conduct
differs from that which she desired only in respect to the
identity of the victim
 Requires the same injury and same level of mens rea
People v. Conley
In a fight outside a high school party, defendant hit the victim in the face with a
bottle of wine while attempting to hit someone else. Defendant is charged with
aggravated battery. Conviction is affirmed.
- Defendant argues
o He didn’t cause permanent disability
 For a injury to be disabling, it must be shown that the
injured body part no longer serves the body in the same
manner as it did before the injury
 It was shown in this case
o He was intending to inflict harm on someone else
 Overcome by transferred intent
o He intended to cause harm but not permanent disability
 The law presumes that a person intends the “natural and
probable consequences” of his actions
o A person acts “knowingly” if she is consciously aware that a result
is “practically certain”
o A person acts “knowingly” regarding an existing fact if
 She is aware of the fact
 Correctly believes that it exists
 Suspects that is exists and purposely avoids figuring out if
State v. Nations
Defendant owned and operated a bar where a 16-year-old girl was found dancing
for tips. Defendant was convicted of endangering the welfare of a child less than 17
years old.
- Conviction reversed
- Statute requires “knowingly” as the mens rea
- MPC states that knowledge is established if the person is aware of a high
probability of its existence. (willfull blindness)
- Missouri did not adopt the MPC definition and limited “knowingly” to
actual knowledge
Risk Taking: “Recklessness” and “Criminal Negligence”
o Is the risk justified or unjustified?
o “Criminal Negligence” – A person acts in a negligent manner if she
should be aware that her conduct creates a substantial risk and
deviates from the reasonable standard of care
 Fault is objective – actor is punished because they did not
act reasonable
 Factors such as lack of education, economic status, and
mental disabilities are NOT considered
o “Recklessness” – A person is aware of a substantial and
unjustifiable risk, consciously disregards it, and grossly deviates
from the reasonable standard of care
o A person acts with malice if she intentionally (purposefully or
knowingly) or recklessly causes the social harm of an offense
Statutory Construction: Does mens rea refer to all of the actus reus elements?
- First, look at plain language. Then go to legislative history.
o If you can’t interpret, apply rule of lenity
- Legislative intent
- Position of the mens rea term in the defintion
- Puncuation – a phrase off-set by commas is independent of surrounding
- Absent evidence to the contrary, mens rea terms DO NOT APPLY TO
attendant circumstances
United States v. Morris
Defendant was convicted for releasing “worm” into network computers
- Convicted of violating the computer fraud and abuse act of 1986 which
punishes anyone who intentionally accesses without authorization any
federal-interest computers and damages or prevents authorized use of
information causing damage of $1000 or more
- Defendant argued that he did not intend to cause harm
- Court said that the intent requirement is applied only to the accessing and
not to the damage
- This is the MINIORITY RULE, most courts follow MPC elemental approach
MPC 2.02
- Requires proof of some mens rea for every material element of the
- Purposely:
o (For conduct or result elements) It is her conscious objective to
engage in conduct of that nature or to cause such a result
o (For attendant circumstances) She is aware of the existence of
such circumstances or he believes or hopes that they exist
- Knowingly:
o (For conduct or attendant circumstances). She is aware that her
conduct is of the nature or that such circumstances exist or he is
aware of a high probability of its existence (the last part sounds
like common law willfull blindness)
o (For result elements) She is aware that it is practically certain that
her conduct will cause such a result
- Recklessly
o A person acts recklessly if she consciously disregards a substantial
and unjustifiable risk that the material element exists or will result
from her conduct (same as common law)
o One of reckless when the risk-taking involves a “gross deviation
from the standard of care that a reasonable person would observe
in the actor’s situation.”
 “In the actor’s situation” allows some subjectivity such as
education, etc. (more than common law)
- Negligently
o Similar to common law
o A person is NOT aware of the risk, but SHOULD be and their
conduct constitutes a gross deviation from the standard of care a
reasonable person would observe in the actor’s situation
Statutory Construction under the MPC
- Requires some mens rea for each element of the offense
- If the statue is silent regarding mens rea then the mens rea required is
purposely, knowingly, or recklessly
Strict Liability
- Crimes that do not have a mens rea element
- 2 categories:
o 1. Regulatory crimes (“if you remove this tag,” public safety, traffic
 Penalty is minor
 Deterrence is so important that we value it over retribution
o 2. Crimes of high moral turpitude (statutory rape)
 So morally wrong that we will deter at all costs
MPC does not allow strict liability crimes except as to “violations” and
statutory rape for persons under 10 years old.
Garnett v. State
A young mentally handicapped man is tried and convicted for statuatory rape,
despite evidence that the girl and her friends told him that she was 16. His
conviction was affirmed.
- Legislative history showed that the crime was intended to be strict
- Makes no difference to the actor’s knowledge, belief, or handicap
A criminal homicide is a homicide committed without justification (self-defense,
necessity) or excuse (insanity, duress)
“Human Being”
- Used to be that a fetus was not considered until born alive – “even for one
- Today, many states hold that a viable fetus is considered a human being
- A person is dead when there is total stoppage of the circulation of the
blood and permanent cessation of the functions of respiration and heart
o The modern trend is that a person is legally dead if he experiences
an irreversible cessation of breathing and heartbeat OR suffers
from “brain death syndrome,” which occurs when the whole brain
(not just a part) permanently loses the capacity to function
Year-and-a-day rule
- A person can be prosecuted for homicide only if the victim dies within a
year and one day of the injury
- Today, many states have abolished this rule
“A killing of a human being by another human being with malice aforethought”
- A person acts with malice if she unjustifiably, inexcusably, and in the
absence of any mitigating circumstances, kills a person with any one of
the 4 mental states:
o 1. The intention to kill a human being
o 2. The intention to inflict grievous bodily injury to another
o 3. An extreme reckless disregard for the value of human life
(depraved heart)
o 4. The intention to commit a felony during which a death
accidently occurs (felony-murder)
- Originally, this meant that the actor thought about the killing beforehand
- Over time, the term lost its significance except as a reminder that the
“malicious” state of mind occurred at the time of the killing
- Prosecutor must prove beyond a reasonable doubt that the killer
purposely or knowingly took another’s life
o Natural and probable consequences doctrine
 It is reasonable to infer that a person intends that natural
and probable consequences of her actions
o Deadly weapon rule
 A jury may infer an intent to kill if defendant intentionally
used a deadly weapon directed at a vital part of the human
- Statutory Reform – “Willful, Deliberate, Premeditated” formula
o Starting in PA, many states concluded that not all murders merited
the death penalty, and, as a consequence, they divided murder into
degrees – only 1st degree murder carried the possibility of capital
 Common law had NO DEGREES OF MURDER
o In states that have followed the PA model, which divides murder
into degrees, a “willfull, deliberate, premeditated” killing is 1st
 Willfull means intentional
 Premeditated means to think about beforehand
 How much premeditation is necessary?
o Some courts hold that “no time is too short”
and that “an intent to kill need exist only for
an instant” – SCHRADER RULE
o Some courts require proof that the actor
thought about the killing for “some
appreciable time”
State v. Guthrie
Defendant stabbed co-worker in the neck after he made fun of him and snapped him
with a distowel. He is convicted of 1st degree murder – The conviction is reversed
and remanded for a new trial
- There must be some evidence that the defendant considered and weighed
his decision to kill in order for the state to establish premeditation and
- This overturns the “Schrader rule”
Must be some time between the formation of the intent to kill and the
Deliberate. Most states do not distinguish between
premeditated and deliberate
 When courts do distinguish, they hold deliberate to
mean “to measure and evaluate the major facets of a
choice or problem” – requires longer than an instant
 In general, deliberate means “cool” and “calm”
Things to consider when determining premeditation and
 1. Want of provocation on the part of the deceased
 2. The conduct and statements of the defendant
before and after the killing
 3. Threats and declarations of the defendant before
and during the occurrences giving rise to the death
of the deceased
 4. Ill will or previous difficutly between the parties
 5. The dealing of lethal blows after the deceased has
been rendered helpless
 6. Evidence that the killing was done in a brutal
Midgett v. State
Defendant had abused his 8 year old son by brutal beatings. The son dies. Defendant
was found guilty of 1st degree murder. He argues that his killing was not
“premeditated and deliberate.”
- When a person is accused of 1st degree murder, it must be shown that the
killing was premeditated and deliberate
- There was evidence that defendant intended to keep his son alive to
further abuse him
- His conviction was changed to 2nd degree – not premeditated and
deliberate but with the intent to cause grievous bodily injury
- Some states allow child abuse to go beyond 2nd degree murder under
felony murder rule or by adopting a “murder by torture” statute
State v. Forest
Defendant shot his terminally ill father. He was convicted of 1st degree murder. The
conviction was upheld.
- The killing was premeditated and deliberate
- He brought a gun to the hospital
- He had thought about killing him before
- In states that distinguish between degrees of murder according to the PA
model, one who kills another person with the intent to inflict grievous
bodily injury is guilt of 2nd degree murder
o In constitutes malice aforethought, but it is not will, deliberate, or
- Conduct that manifests an extreme indifference to the value of human life.
If the actor consciously takes a substantial and unjustifiable foreseeable
risk of causing human death (At common law, this conduct is called
“implied malice” and distinguished from intentional killings which
involve “express malice”)
o If a person dies as a result of such conduct, the actor is guilty of
murder, even though the death was unintended
- In states that divide murder into degrees, a depraved-heart homicide is
2nd degree
Berry v. Superior Court
Berry left a pit bull teterred, but in an accessible area near where children were
known to play. The dog was guarding marijuana. Dog killed a 2.5 year old boy. Berry
charged with 2nd degree murder.
- Defendant shows extreme indifference to the value of human life and is
aware of the risks of his conduct or that his conduct is unlawful, such
evidence is sufficient to justify trial for murder on implied malice
- Berry may have been aware of Willy’s potential danger to human beings
- Berry kept Willy to guard marijuana therefore his conduct contains
elements of illegal and antisocial purpose
- At common law, a person is guilty of murder if she kills another person,
even accidently, during the commission or attempted commission of any
- The mens rea is the mens rea for the underlying felony – there is no mens
rea requirement for the murder
- For causation – you must prove that the felony is part of the chain of
events that lead to death
- Statutory Approach – many states that divide murder into degrees have a
dual approach to felony-murder
o Killings that occur during the commission of certain specifically
listed felonies (most common: arson, robbery, rape, and burglary)
is 1st degree murder
o A death during the commission of any non-enumerated felony
constitutes 2nd degree murder
- Rationale for rule
o Deterrence – threat of a murder conviction may deter felonies
Critique: If we want to deter felonies, we should increase
the potential punishment of the felony
o The harshness of the rule will cause felons to commit their crimes
in a less dangerous manner, thereby decreasing the risk that death
will occur
Criticisms of the rule
o Felony-murder rule is used most often in cases in which the felon
intentionally killed the victim, or in which he acted in an extremely
reckless manner – In these cases, the rule would not be necessary
 In the cases where the rule is really needed, the felon likely
did not expect anyone to die, and therefore, cannot be
o The rule, when applied to accidental homicides, results in
disproportional punishment
 The intent to commit a felony is transferred to homicide
which is not fair
Many courts have limited the scope of the rule (due to unpopularity)
o Inherently-dangerous-felony limitation
 Many states limit the rule to killings that arise during the
commission of ‘inherently dangerous” felonies
 How do courts determine “Inherently dangerous”?
 “Dangerous” is defined in the abstract by the statute
o Looks only at how the felony is committed in
most cases
 “Dangerous” as perpetrated
o Independent-Felony Limitation (merger)
 The predicate felony must not be one involving personal
injury, but have a purpose other than inflicting harm
 If manslaughter could be used for the felony-murder
rule, there would be no more manslaughter
convictions (every death would become a felonymurder)
Killing by a non-felon
o Some jurisdictions have held that the felony-murder rule does not
apply if the person who commits the homicide is a non-felony
resisting the felony
 Agency theory – a felon is only responsible for homicides
committed in furtherance of the felony, by a person acting
as the felon’s agent
 Homicides by police officers, felony victims, or
bystanders fall outside the rule
 Proximate Causation approach – A felon may be held
responsible for a homicide perpetrated by a non-felon if the
felon proximately caused the homicide
“An unlawful killing of a human being without malice aforethought”
2 types
1. Voluntary Manslaughter: An intentional killing, but one in which the actor
takes a life in a “sudden heat of passion” as the result of “adequate
2. Involuntary Manslaughter: An unintentional killing that occurs in 2 ways
 Criminal negligence: If a homicide is the result of a lawful act
performed in an unlawful manner and without due caution (If the
killing occurred in a negligent manner)
 Unlawful Act Doctrine: If a homicide results from the commission
of an unlawful act – the “misdemeanor-manslaughter” rule
Murder vs. Manslaughter
- Intentional Killings: An intentional killing if not justifiable or excusable
can constitute either murder or manslaughter
o It is murder (malice aforethought) unless a mitigating factor is
present (provocation, heat of passion)
- Unintentional Killings: Can constitute murder or manslaughter
o In general, “reckless” killing is murder and “negligent” killing is
 Sometimes “extreme reckless” killing is murder and a
“reckless” killing is manslaughter
- Accidental Killings
o An accidental killing does not constitute criminal homicide unless
it occurs during the commission of a wrongful act
 Felony-murder rule
 Misdemeanor-Manslaughter
 Civil Wrong Death
Voluntary Manslaughter: Provocation (Heat of Passion)
- An intentional, unjustifiable, inexcusable killing, which ordinarily is
murder, constitutes manslaughter (or voluntary manslaughter if it is
committed in sudden heat of passion as the result of adequate
o Rationale for the provocation doctrine
 Partial excuse, as a concession to normal human frailty
 The culpability of the actor is reduce because of the
- Elements of the defense:
o 1. Adequate Provocation
 Provocation is adequate if it is calculated to inflame the
passion of a reasonable man and cause him to act out of
passion instead of reason
At common law:
 Types of provocation that are adequate
o Serious battery
o Mutual combat
o Walking in on a spouse cheating
 Must actually observe the act
Giroud v. State
Defendant convicted or murder for stabbing his wife 19 times. He argues that it
should have been manslaughter since she provoked him. His conviction is
- Time to cool (went to kitchen to get knife)
- Words cannot be provocation unless words are accompanied by a present
intention and ability to cause the defendant bodily harm
o “I am going to kill you” would be enough if harm is likely to occur
o 2. Heat of Passion
o 3. Suddenness
 Must occur in a sudden heat of passion – i.e. no time to cool
o 4. Casual Connection
 The victim has to be the source of provocation (different
form MPC)
Involuntary Manslaughter
- Criminal negligence (gross negligence)
State v. Hernandez
Defendant was convicted of involuntary manslaughter after driving intoxicated and
killing a passenger in another car. Car had drinking slogans. Conviction reversed.
- Negligence means that a defendant is “unaware” of a risk
- Drinking slogans were evidence of “recklessness”
State v. Williams
Defendants do not take seriously ill child to the doctor. This is a case of ordinary
negligence not gross negligence.
- Under Washington law, ordinary negligence is enough to get you
involuntary manslaughter
Unlawful-Act Doctrine
o A person is guilty of involuntary manslaughter if she kills another
person during the commission or attempted commission of an
unlawful act that does not trigger the felony-murder rule
 Some states apply doctrine to all misdemeanors as well as
felonies excluded from felony-murder rule
Some jurisdictions limit the rule to mala per se
misdemeanors such as petty theft or “dangerous”
A person is guilty of criminal homicide if she takes the life of another human being
purposely, knowingly, recklessly, or negligently
“Human Being” is a person born alive
- No indication of when a person ceases to be a human being
A homicide constitutes murder if the killing in committed
- Purposely
- Knowingly
- Recklessly (extreme indifference to human life)
The MPC does not divide murder into degrees
Common law vs. MPC
- MPC does not have “malice aforethought”
- Intent to kill
o = MPC purposely or knowingly
o No proof required of premeditation or deliberation
- Intent to cause grievous bodily injury
o = MPC “extreme recklessness”
- Depraved Heart
o = MPC “extreme recklessness”
 Under MPC, you have to prove advertent risk-taking, that
the risk was substantial and unjustifiable
- Felony-Murder Rule
o MPC abandons this rule
o However, reckless indifference to the value of human life may be
presumed if the person the person causes the death during
commission of one of the felonies enumerated in the code
 Robbery, arson, burglary, kidnapping, felonious escape,
rape, or deviate sexual intercourse by force or threat
 Burden of proof still with prosecution, the jury is simply
permitted to infer extreme indifference
Criminal homicide constitutes manslaughter in 2 circumstances
1. Recklessness – a recklessness that does not manifest an extreme
indifference to human life
2. Extreme Emotional Disturbance (EED)
o A murder constitutes manslaughter if the actor kills under the
influence of an “extreme emotional disturbance” for which there is
a “reasonable explanation or excuse”
 The “reasonable explanation or excuse” is not for the
homicide, it is for the EED
o The MPC allows a jury to reduce the offense to manslaughter
without considering the rigid common law categories o adequate
 Words CAN qualify
 The defense is applied if there is no provocation at all, as
long as the jury concludes that there is a reasonable
explanation or excuse for the actor’s EED
o EED should be determined from a reasonable person “in the
actor’s situation under the circumstances as he believes them to
People v. Casassa
Defendant is obsessed with his neighbor and she refuses his advances. He stabs her
to death. He was convicted of 2nd degree murder. He argues EED.
- EED is both subjective and objective
- Subjective as to whether the actor was suffering EED
- Objective as to whether EED was reasonable
- Court said EED was not reasonable. Conviction affirmed.
A criminally negligent killing (involuntary manslaughter at common law) is
negligent homicide under the MPC
Furman v. Georgia (1972)
US Supreme Court sets aside the death penalty in Georgia finding that it was cruel
and unusual punishment
After Furman, 35 states rewrite their death penalty statues
- Aggravating and mitigating factors
Gregg v. Georgia (1976)
Gregg argues that the death penalty was unconstitutional per se (violating 8th
- The court said that the death penalty is not unconstitutional per se
- Is the death penalty constitutional in this case?
o In Georgia, there is a bifurcated trial
Woodson v. North Carolina (1976)
- Made the death penalty mandatory in 1st degree murder cases with
certain aggravating circumstances
- Was rule unconstitutional by the US Supreme Court
o Violated due process
o Didn’t allow jury to hear mitigating factors
o Did not treat defendants as unique human beings
McCleskey v. Kemp (1987)
McCleskey argued that death penalty was unconstitutional because black defendant
who killed white victims were the most likely to get death penalty
- The Baldus study
o Information not casual, it is a correlation
o Could result from other factors (such as economics)
- He is not arguing that he doesn’t derserve the death penalty, but that
other people deserve it too (cars speeding on the highway example)
- Did not provide evidence that he was discriminated against in his
particular case
Purposes of rape law
- To protect sexual autonomy
o Everyone should be allowed to decide when he/she wants to have
sex and with whom
Rape originally brought by victim’s father
Seen as a crime of dishonor to family rendering the victim unmarriable
Sexual intercourse by a male, with a female not his wife, by means of force or threat
of force, against her will, and without her consent
Actus Reas
- Sexual Intercourse by male with female
o Must have vaginal intercourse
 Oral or Anal “rape” constituted sodomy
o Modern Reform Statutes
 Many states have renamed the offense sexual assault or
sexual battery
 These offense prohibit ALL forms of forcible sexual
 Tend to be gender neutral
Some states prohibit “sexual contact” – undesired contact
that does not result in penetration
Martial Immunity
o At original common law, a husband was immune from prosecution
for rape of his wife
 Rationale:
 Consent – upon marriage
 Property – a woman considered property of
 Protect the government from intruding into marital
 Modern Law:
 Some states have completely abolished rule
 Some states abolish rule if husband and wife are
legally separated or living apart
o Because lack of consent is an element of the crime, the prosecution
must prove it beyond a reasonable doubt
o Withdrawn consent = no consent
People v. John Z
“Primal Urge” case. Was convicted of forcible rape, he argues that he must be given
time after the woman withdraws her consent. Convicted affirmed.
- Question presented: what is a reasonable time to withdraw?
o Varies by state
o Some have a reasonable (objective) standard
o Forcible rape is not complete without force or the threat of force
State v. Alston
Cottie Brown and defendant had been in a relationship but were separated at the
time. Defendant went to her school and brought her this friend’s where he had sex
with her even though she said no. Defendant convicted of rape. He appealled arguing
that he had not used force. Conviction reversed
- Must have use of actual force or threat of force
- To establish lack of consent beyond a reasonable doubt, it must be
established that the victim clearly said no and that the defendant used
force to overcome her will
- Although Brown’s fear of force may constitute force, he had not acted in
an overly threatening way on the day of the alleged rape
o If the male uses force likely to cause death or serious bodily injury,
the victim is not required to resist
o If the male does not used force likely to cause death or SBI, the
victim is required to resist
o Therefore, rape is not forcible unless force is used to overcome
o Criticisms:
 Forces victim to defend herself (may put her in danger)
 Assumes “saying no” isn’t enough
 Ignores the fact the females may be scared of their male
Commonwealth v. Berkowitz
College dorm room case. Victim repeatedly said no. He was convicted of rape. He
appeals arguing that sex was consensual. Conviction reversed.
- Whether there is sufficient evidence to demonstrate that the defendant
engaged sex through forcible compulsion will made based on the totality
of the circumstances.
- Circumstances to take into account:
o Respective ages of victim and accused
o Respective mental and physical conditions
o Atmosphere and physical setting
o Whether the accused is in a position of authority
o Whether the victim was under duress
- Facts show no more than reluctant submission
- PA law requires force
Rusk v. State
Defendant meets woman at bar. He takes her keys when she drives him home. She
asked if he would let her leave if they had sex. Defendant convicted of rape and
assault. Case remanded to decide the reasonableness of victim’s fear.
- Defendant obtained victim’s compliance through force or threat of force
- A subjective fear, not supported by physical force of specific threats, does
not support a rape conviction.
- Some states now require far less proof of force
- “Reasonable resistance”
- “Force required to complete the act”
- Only issue left to be determined is whether it is nonconsensual
State of New Jersey v. MTS
Victim claims defendant had sex with her while she was asleep. He was convicted of
sexual assault. Conviction upheld.
No more force than needed to complete the act
Any penetration, absent freely given permission is rape
Essence of rape is the nonconsensual nature
- Rape is a general intent offense
- General Rule:
o Most jurisdiction hold that a person is not guilty of rape if they
reasonably believed the victim had given consent
Commonwealth v. Sherry
3 doctors take victim to a house and have sex with her. All three were convicted of
rape. They appeal arguing that there was consent. Conviction affirmed.
- State DOES NOT need to prove actual knowledge of non-consent
- The proper standard is whether the defendant reasonably believed the
victim consented and acted in good faith
o MINORITY RULE: Some states hold that even a reasonable
mistake about whether a victim consented is not a defense.
 Basically makes rape a strict liability offense
Statutory Rape
- All states say that intercourse with an underage female to whom he is not
married constitutes rape
- The definition of “underage” varies by jurisdiction
- Many states divide statutory rape into degrees based on the age of the
female and the difference in ages
o Most severe penalities are when the male in adult and the female
is pre-pubesent
- In almost all jurisdictions, mistake of age is not a defense even if the
defendant’s belief is reasonable
Rape by Fraud
- Fraud in the Inducement
o At common law, a seducer is not a rapist
o Consent for intercourse is present regardless of how it was
Boro v. Superior Court
Victim was told she would die if she didn’t have sex with defendant.
- Intercourse induced by fraud does not constitute rape
Fraud in the Factum
o Consent is not valid if the victim is unaware that she consented to
sexual intercourse
People v. Minkowski
Doctor inserted an object into women’s vagina. The object is his penis.
- Held that consent was NOT applicable since it did not apply to sexual
Rape shield laws prevent defendant is a sexual assault case from introducing
evidence about her prior sexual conduct or her reputation. This is generally an issue
because it goes against a defendant’s 6th amendment right to confront the witnesses
against him.
1. Prevent defendant from harassment or humiliation
2. Evidence has no bearing on whether the defendant consented to the
particular intercourse
3. Exclusion of eidence keeps jury forcused on the issue at hand
4. Victims are more likely to testify
In order to introduce evidence it must be relevant to either consent or credibility of
the witness and then it must be more probative than prejudicial
Four approaches to Rape Shield Laws:
1. Michigan
a. Excludes evidence regarding prior sexual history, conduct, and
reputation except when it is highly relevant to the defense
i. More than relevant. Must be HIGHLY RELEVANT
ii. Exceptions:
1. Prior sex with defendant or recent sexual conduct
explains her physical features or characteristics
a. Example: Victim argues that there are
scratches on her from force and defendant
argues that they are a result of sex with
someone else.
2. Texas
a. Gives discretion to the judge. Just like any other evidence
3. Federal
a. Case by case decision for judges. The default is that evidence is
excluded unless the defenense can prove that it should be allowed.
4. California – MOST COMMON
a. Divides evidence into 2 groups
1. Prior sex to prove consent
a. Only allowed if it deals specifically with the
2. Prior sex to prove reputation
a. Is allowed if it speaks to victims credibility
State v. Herndon.
No facts.
- Held that the probative value of the evidence is so miniscule when
weighed against the potential prejudice to the complaining victim. RAPE
SHIELD LAWS are not unconstitutional.
People v. Wilhelm
Defendant observed victim lift her shirt and expose her breasts to others in the bar.
- Court did not allow this evidence because it showed victim’s conduct with
men other than the defendant
State v. Colbath
Relied on by People v. Wilhelm. Victim had rubbed defendant’s crotch in the bar.
Had sex in defendant’s trailer. Girlfriend walked in on them.
- Differentiated because victim conduct was with the defendant.
- Also may have been motivated by the girlfriend walking in on them
- Also behavior was in public and could have been observed by anyone in
the bar
A male who has sexual intercourse with a female not his wife is guilty of rape if he
compels her to submit by force or threat of imminent death, serious bodily injury,
extreme pain or kidnapping, to by inflicted on anyone
- Gender specific
- Includes marital immunity
- Sexual intercourse includes oral and anal sex
- Uses “compel” instead of non-consent
o Purpose was to put the focus on the defendant’s behavior and not
how the victim responded
- No resistance requirement
- The code grades rape as 2nd degree felony except in 2 cases when it is 1st
o 1. The male actually inflicts serious bodily injury during the rape
o 2. The female was not a voluntary social companion of the
defendant at the occasion of the crime and had not previously had
sexual encounters with him. VERY CONTROVERSIAL
Prohibits nonforcible sexual intercourse by a male with a female not his wife when
1. He “substantially impaired her power to appraise or control her conduct
by administering or employing without her knowledge drugs, intoxicants,
or other means for the purpose of preventing resistance.”
2. She was unconscious at the time of intercourse
3. She was under 10 years old. (STRICT LIABILITY)
- 3rd degree felony
- Deals with 3 cases in which a man secures sexual intercourse with a
female not his wife
o 1. Compels her to submit by any threat that would prevent
resistance by a woman or ordinary resolution
 Non-bodily harm cases (reputation, economic, etc…)
o 2. If he knows that she suffers from mental disease “which renders
her incapable of appraising the nature of her conduct.”
o 3. He knows that she is unaware that a sexual act is being
committed upon her or that she mistakenly supposed that he is
her husband.” (Fraud in factum)
Incomplete or unsuccessful criminal conduct
ATTEMPT – Common Law
When a person, with the intent to commit a criminal offense, engages in conduct
that constitutes the beginning of the perpetration, rather than mere preparation for,
the target offense
Complete attempt
- Person takes all steps needed to commit the offense and fails for some
reason (shoots an unloaded gun)
Incomplete attempts
- Actor is seriously dedicated to the crime, but is stopped
Today, same for attempt as target offense
Most states treat attempt as a lesser offense than the target crime
o Critism: Person who attempts to commit a crime is AS
DANGEROUS and MORALLY CULPABLE as the successful crime
 Response:
 An attempt causes less social harm
 The actor has less social debt to pay
 Want to give incentive to desist from completing an
You CANNOT be convicted of murder and attempted murder
Actus Reus
- Different tests
o Overt Act
o Last Act Test
 A criminal attempt occurs only when a person has
performed all of the acts that she believed would be
necessary to commit the target offense
 Criticism: Would make it had for police intervention
o Dangerous Proximity Test
 Conduct must be so near to the result that the danger of
success is very great
 Courts consider 3 factors
 1. Nearness of the danger
 2. Substantiality of the harm
 3. Degree of apprehension felt
 The more serious the offense, the less close the actor must
come to completion to be convicted of attempt
People v. Rizzo
Defendant and 3 others intended to rob someone but were arrested before they
could find the person they intended to rob. Convicted for attempt to commit
robbery. Reversed and remanded
- Attempt encompasses only those acts which are so near to the
accomplishment of the crime that in all reasonable probability the crime
itself would have been committed but for timely interference
- The acts were not so near that the danger of success was very great
- Under MPC, their acts would have been a “substantial step”
Commonwealth v. Peaslee
Defendant arranged combustibles to burn down a building. Defendant solicitated
someone else to light the fuse who refused. Defendant drove to the building to light
the fuse but changed his mind and turned away. Convicted of attempted arson.
- Dangerous Proximity test is used.
o Degree of proximity necessary will vary with the circumstances
o Defendant’s act of solicitation was enough.
o Physical Proximity Test
 Actor’s conduct must approach sufficiently near to the
complete offense to stand either as the first of some
subseqeutnt step in a direct movement toward to
commission of the offense after preparations are made
 Example. Defendant has weapon in hand and her
victim in site. Police intervene.
o Probable Desistance Test
 Person has proceeded “past the point of no return”
 In the “ordinary and natural” course of events, without
interruption from an outside force, the crime will result
o Abnormal Step Test
 An attempt is a step toward crime which goes beyond the
point where the reasonable person would think better of
his conduct and desist
 Criticisms:
o Provides little guidance to the police
o Odd to apply an objective test (what would a
reasonable criminal do? Since a reasonable
person would not commit crime)
Mens Rea
- Dual Intent. The intent to commit some other crime.
o First Intent:
 The actor must intentionally commit the acts that
constitute the actus reus of an attempt
o Second Intent:
 The actor must commit the actus reas of an attempt with
the specific intent to commit the target offense
 State of mind is almost always the critical issue in attempt
o Example: If D aims a loaded gun a person and is arrested before
he pulls the trigger. He is NOT GUILTY of attempted murder unless
he intended to kill the person. IF he intended to scare them, he is
not guilty.
Bruce v. State
Defendant shot the owner of a shoe store in the stomach while attempting to rob the
store. Victim did not die. Defendant was convicted of attempted felony-murder. He
appeals arguing that “attempted felony-murder” is not a crime. Conviction reversed.
- Criminal attempts requires a specific intent and felony murder does not.
Therefore, attempted felony-murder is not a crime in Maryland.
- If victim had died, it would have been felony-murder
People v. Gentry
Defendant poured gasoline over girlfriend. She was lit on fire by the stove.
Defendant put her out. Defendant convicted of attempted murder.
- Defendant arugues that he did not intend to kill
- The findind of specific intent is a necessary element of the crime of
attempted murder.
The second intent shows that ATTEMPT IS A SPECIFIC INTENT
OFFENSE. Even if the target offense is general.
o Rape is a general intent crime, but attempted rape is specific.
At COMMON LAW it is not clear what mens rea, if any, an actor must
possess regarding attendant circumstances.
o Some courts say that a person is guilty if he is reckless regarding
an attendant circumstance
o Other courts hold that an actor must be as culpable as is required
for the element of the target offense
MPC treats attempt as same degree and subject to same punishment as
the target offense
o An attempt to commit a 1st degree felony is a 2nd degree felony
Actus Reus
- Complete attempts
o If attempt is complete, actus reus is satisfied
- Incomplete attempts
o Substantial Step Test
 Substantial step is not defined but it must be “corroborative
of the actor’s criminal purpose”
 Examples listed in MPC:
 Lying in wait
 Searching for or following the contemplated victim
 Jury decides whether act’s step is substantial
- Distinction from common law:
o In general, common law looks at how close the actor is to
completing the crime, MPC looks to see how far the actor has gone
from the point of initiation of the offense.
Mens Reus
- A person is not guilty of attempt unless he
o Purposely engages in conduct that would constitute the crime
o Acts with the purpose of causing or with the belief that it will
cause the criminal result
o Purposely does an act constituting a substantial step
- Attendant circumstances
o The purpose requirement for an attempt does not apply to
attendant circumstances
 In regard to circumstances, a person is guilty of an attempt
if she acts with the kind of culpability required for
commission of the target offense
 For attempted statutory rape, the female’s age (10)
is still strict liability
Inducing, asking, or counseling another to commit a crime with the specific intent
that the other person will commit the crime solicited. Defendant is guilty of the
crime that he solicited.
Solicitation is sentenced as severely as the target offense in most
Minority of jurisdictions, attempt and solicitation are graded lower
MPC, grades them the same as the target offense
Actus Reus
- When the actor communicates the words or performs the physical act
that constitutes the invitation, request, command, or encouragement
- At Common Law solicitation does not occur unless words or conduct are
successfully delivered to other party
- Defendant may be found guilty of attempted solicitation
State v. Cotton
Defendant wrote to wife asking to prevent her daughter from testifying. His wife
never recived letter. He was convicted of solicitation. Reversed and remanded.
- Should have been charged with attempted solicitation
AT MPC, successful solication is not necessary
Common Law: A person is not guilty of solicitation unless the actor actually
commits the crime
MPC: a person IS guilty of solicitation is she asks the other person to commit the
offense OR if she requests the other person to do some act that would establish that
person’s complicity as an accomplice in the offense.
It is easier to prove solicitation under the MPC
- Do not need receipt of solicitation
- Do not need the person’s to solicit the principal actor, merely need to be
an accomplice
Mens Reus
- Common Law: Solicitation is a specific intent offense. Solictor must
intentionally commit the actus reus, with the specific intent that the
person solicited commit the target offense (must be the principle actor).
o Example: Defendant is NOT guilty of solicitation if he jokingly asks
another to kill his wife. Does NOT have the intent that the person
solicited will complete the act.
MPC: A person is not guilty of solicitation unless she acts with the
purpose of promoting or facilitating the commission of the solicited
Defense – Renunciation: MPC ONLY
- Provides a defense to solicitation if the soliciting party
o 1. Completely and voluntarilty renouces her criminal intent
o 2. Persuades the solicited party not to commit the offense or
prevents the person from committing the crime
Innocent Instrumentality
- If A does not know it’s a crime then defendant is not guilty of solicitation
- If A succeeds in crime, defendant is guilty of that crime
- If A does not succeed, defendant is guilty of attempt
An agreement between two or more persons to commit an unlawful act or series of
unlawful acts
Each co-conspirator is guilty of all the acts and statements of othe co-conspirators as
long as the acts falls within the scope of the purpose of the conspiracy or are
committed in furtherance of the conspiracy.
- Acts must be foreseeable
Pinkerton v. United States
Defendant and brother convicted of tax violations. Defendant appeals saying that he
did not know of acts his brother committed while he was in jail. Conviction affirmed.
- Must renounce his involvement.
Rationale for Conspiracy:
- Allows police to intervene before another act is committed
- Group criminality is considered more dangerous than individual
wrongdoing because of combined resources, strength, and expertise
Today, conspiracy to commit a felony is usually a felony, but typically a
lesser offense than the target crime
Conspiracy DOES NOT merge into a completed offense but DOES merge with an
In court.
- Usually hearsay evidence is not allowed
However, since co-conspirators are responsible for each other’s
statements. A co-conspirator can be used as evidence.
Existence of a conspiracy must be proved by preponderance of the
evidence for hearsay evidence to be allowed
Persons in a conspiracy are tried together
Prosecution can be brought where the conspiracy was formed OR where
any of the acts in furtherance of the conspiracy occurred.
Actus Reus
- Common Law, conspiracy is committed as soon as the agreement is
made – “meeting of the minds”
- Today, many jurisdiction hold that a conspiracy does not exist until one
party commits an overt act in furtherance of it
- Agreement may be implied by actions
- Agreement can be to commit an unlawful act. Not only a crime.
Mens Reus
- 2 specific intent requirements
o 1. Intent to make the agreement
o 2. Intent to commit the unlawful act
- Intent can sometimes be proven from knowledge if:
o 1. The person has acquired a stake in the venture
o 2. No legitimate use of the goods and services exists
o The volume of business with the buyer is grossly disproportionate
to any legitimate demand
o If the supplier gives advice to the wrongdoer (how to construct a
People v. Lauria
Defendant knew that prostitutes were using her answering service. He is charged
with conspiracy to further prostitution. Not convicted.
- Supplier who knows of the criminal use of his supplies must have intent
to participate in criminal activity. Intent may be established be
o 1. Direct evidence that he intend to participate
o 2. Through evidence that he intended to participate based on
 1. Specific interest in the activity
 2. The aggravated nature of the crime itself
Plurality requirement
o No person is guilty of conspiracy unless two or more people have
the same mens rea.
 Ex. If A suggests to B, an undercover police officer, that they
commit a crime there is no conspiracy
Actus Reus
- An OVERT ACT is required, except for felonies of the 1st and 2nd degree
o Provides more deterrent
- The agreement must be to commit a CRIME, not an “unlawful” act
Mens Reus
- Acting with the purpose of promoting or facilitating the commission of the
conduct that constitutes a crime
o One who has mere knowledge of another’s criminal activities is
not guilty of conspiracy
A conspiracy to commit any offense other than a felony of the 1st degree is
graded the same as the crime that is the object of the conspiracy
A conspirator MAY NOT be convicted of both conspiracy and the target offense,
unless the conspiracy involves a continuing course of conduct.
The MPC REJECT the plurality rule.
Renunciation (Abandonment Rule)
- A person is not guilty of conspiracy if he renounces his criminal purpose,
and thwarts the success of the conspiracy
During the trial, the state has to prove all of the elements beyond a reasonable
doubt. After this is completed, defendant has a chance to present his own case.
Failure of Proof
- When the state fails to prove any element of the crime
- This is a counter-attack to the state’s case
May not rely on the state’s failure to prove the elements of the case
o Conduct considered appropriate because it prevented a greater
 Necessity
 Self-Defense
o Conduct was wrong but actor shouldn’t be held criminally
 Duress
 Insanity
Public Policy Defenses
o Statutes of Limitation
 There is no statute of limitation for homicide
o Immunity
o Incompetency
- When a co-conspirator is acquitted for justification – all other coconspirators are acquitted
- This is not the same for excuse
Self-defense is a justification.
- Necessity
3 elements:
1. Triggering condition
2. Response has to be necessary
3. Response has to be proportional
A person is justified in using deadly force against another if
1. He is NOT the aggressor
2. He REASONABLY believe that such force is NECESSARY to repel the
IMMINENT use of DEADLY force by the other person
Deadly force = force likely to cause, or intended to cause death or SBI
- A person who commits un unlawful act reasonably calculated to produce
an affray foreboding injurious or fatal consequences
- An aggressor may not use deadly force in self-defense
o UNLESS he purges himself of his status as an aggressor
o NON-DEADLY aggressors:
 Majority rule:
 If B responds to A’s non-deadly threat by deadly
force, A is entitled to use self-defense
 Minority rule:
 If B responds to A’s non-deadly threat by deadly
force, A cannot use self-defense unless A retreats
and B continues to threaten with deadly force
o If no safe retreat is possible, A may use
deadly force
o DEADLY aggressors
 A deadly aggressor loses their right to self-defense unless
she abandons her deadly designs and clearly communicates
this to the other person
State v. Peterson
Defendant saw victim taking his windshield wipers. He went into the house and got
a gun. Defendant convicted of murder. Conviction affirmed.
- Defendant was the aggressor since he went to get the gun
- Defense of property is never a justification for self-defense
- Deadly force may never be used in response to a non-deadly threat
Unlawful force
- A person has no right to defend herself against lawful force
o Ex. a lawful arrest
- May only use deadly force if aggressor’s threat will occur immediately
- No pre-emptive strikes
- Deadly force must be NECESSARY
- Could they use less force?
- Retreat:
o Must retreat if he can do so safely
o “retreat to the wall” – more strict than MPC
o If he cannot retreat safely, he can use deadly force
o Castle Doctrine:
 A non-aggressor does not have to retreat from his home
Reasonable Belief
- In order to use deadly force a person must reasonably believe that she is
in imminent danger of death or SBI and that the use of such force is
necessary. She is privileged even if her reasonable beliefs are incorrect.
- Imperfect Defense:
o Majority rule:
 Defendant who acts of the basis of an unreasonable belief
cannot claim self-defense and will be convicted or murder
o Minority rule:
 Defendant who acts on an unreasonable belief will be
convicted of manslaughter under the heat of passion
o Defendant’s physical characteristics can be taken into the
reasonable person
 Many courts also allow prior experiences to be taken into
A person is not justified in using deadly force unless she believes that such force is
immediately necessary to protect herself against the exercise of unlawful deadly
force, force likely to cause SBI, kidnapping, or sexual intercourse compelled by force
or threat
- Moore broad than common law
Comparison to Common Law
- Belief
o Does not have to be reasonable – it’s subjective
 However, if belief is reckless or negligent defendant may be
convicted of manslaughter or negligent homicide – This is
the imperfect defense
- Immanency
o May use deadly force even if the aggressor will not use deadly
force immediately
 Ex. Poisoning the water hole
- Limitations of the general rule
o CANNOT use deadly force if
 1. Defendant is the aggressor
 Aggressor is one who “provokes” the use of force
against herself in the “same encounter” for the
“purpose of causing death of SBI”
o This is more narrow than the common law
 2. Retreat
 An non-aggressor must retreat if she knows that she
can do so with complete safety
 3. Must surrender possessions
o Castle doctrine
 Adds workplace to the doctrine
 Unless the attacker is also at his workplace, then you have
to retreat if you can safely do so
3 kinds of cases
1. Confrontation homicides
a. May use EED
2. Non-Confrontation homicide
a. May use an imperfect self-defense of EED (not heat of passion)
3. Hired killings
a. No defense
Under MPC, battered woman syndrome is not necessary because:
1. Self-defense is more subjective
2. Retreat might not be in full safety
3. Does not have an immancey requirement
BWS evidence speaks to retreat and necessity
- Truly believed she could not retreat
- Also believed that killing was necessary (although not immanent)
- Speaks to the fact that her belief is reasonable
Most courts will not allow a jury instruction on self-defense in a non-confrontational
- Some courts will allow case to go to jury if woman suffered from BWS
State v. Norman
Woman shot man while asleep. Charged with murder
- Court rejected evidence on BWS
- Convicted of manslaughter
- Appellate court held that when there is evidence of BWS, a woman’s
reasonable belief that killing is necessary to save herself from death or
SBI, she can raise the defense
- Conviction reversed
- Supreme court convicted of manslaughter again.
DURESS – excuse
Actor’s actions were wrong but the law does not blame him for his wrongful conduct
- Retributive: actor is not culpable
- Utilitarian: actor cannot be deterred
Theories on Excuse
- Causation Theory
o People shouldn’t be punished for acts they don’t have control over
- Character Theory
o People shouldn’t be punished for conduct that is not
representative of their character. True belief that the conduct will
not happen again.
- Free Choice Theory
o We should only punish people who have the capacity to make the
right choice
DURESS – Common Law
Defendant will be acquitted of an offense NOT MURDER if she proves that she
committed the defense because
A. Another person unlawfully threatened to kill or grievously harm her or
another person unless she committed the crime and
B. She is not at fault in exposing herself to that threat
United States v. Cotento-Pachon
Colombian taxi driver coerced to swallow cocaine-filled balloons. Trial court denied
him the duress defense because they felt the case lacked immanency (the threat was
not immediate) and he had a reasonable opportunity to escape.
- Court of appeals disagreed.
o Immanency requires that a threat be more than a vague,
unspecified danger
o Because of corruption, defendant may have been reasonable in not
going to the police
o Jury should decide
Components of the defense
- An immediate threat of death or SBI
o General threat not enough
o Threat of lesser physical harm, economic, or reputational harm not
- Reasonable belief that the threat will be carried out
- No reasonable opportunity to escape
- You have a choice
o The act is voluntary
o Don’t have the requisist mens rea
- Threat is from an individual
o That person is then guilty of the crime
CANNOT use duress if defendant joins a gang (or terrorist group) where it can
reasonably be anticipated that coercion will ensure
- Death of an innocent person
People v. Anderson
Defendant charged with kidnapping and murdering a woman suspected of
molesting girls in the camp. Defenendant says he was under duress
- Duress is not an excuse to killing an innocent person
- Killing an innocent person is the same harm as the threatened harm
- Death will rarely result from a choice not to kill
At common law, duress will not mitigate to manslaughter because
provocation must come from victim. It is better to try for mitigation
under EED
Defendant must show
A. He committed act because he was coerced to do so by another person’s
use or threat to use unlawful force against him or a third party
B. A person of reasonable firmness would have acted the same in his position
Cannot use the defense if the actor puts himself in a position where “it was probable
that he would be subjected to duress”
MPC is more broad than Common Law
Nature of Coercion
- Does not have the “deadly threat” or “immanency” requirements
- Must be physical force or threat – economic or reputational threats do not
Unlawful Threats
- Threat must come from a human (unlike necessity)
- Duress can be used in murder trials
- Up to the jury to decide whether a “person of reasonable firmness” would
have killed under the circumstances
NECESSITY – justification.
A defense that indicates society’s belief that the defendant’s conduct was morally
right or socially desirable
NECESSITY – Common Law
Elements of the defense
- Coercion comes from a physical force of nature
o Doesn’t always apply today
- Harm is weighed from society’s perspective
- Defendant’s actions must successfully avoid the greater harm
- Does not allow the taking of an innocent life)
- Dudley and Stephens
Self-defense is the only law of necessity that allows the taking of a human
life – thought is that the aggressor is not innocent
Escape from Prison
- Necessity is available as a defense but not typically duress unless
prisoner was told “You better escape or I will rape you”
o Court must set aside the nature requirement
- Prisoner is forced to choose between the lesser of 2 evils
- The Lovercamp Test
o For escape cases, these 5 factors serve as a guideline to limit the
necessity defense
 1. The prisoner is faced with a specific threat of death,
forcible sexual attack, or substantial bodily injury in the
immediate future
 2. There is no time for a complaint to the authorities or
complaints haven’t worked in the past
 3. No time or opportunity to resort to the courts
 4. No evidence of force of violence used towards prison
personel or innocent parties in the escape
 5. Prisoner immediately reports to authorities upon
securing safety
o Very difficult for defendant to win, especially if imprisoned for a
violent crime
People v. Unger
Defendant walked off good behavior farm to avoid sexual assault.
Elements of the defense
- Weighing of two evils
- Actor believes conduct is necessary to avoid harm to himself or another
- Harm avoided is greater than harm done
- No law to exclude the justification claimed by the actor
IF the actor is reckless or negligent in bringing about the situation, the defense is
unavailable fro any offense which recklessness or negligence is sufficient to prove
Comparison to Common Law:
- No immanency requirement
- Necessity IS a defense to homicide
- Does not require natural force
- Does not say reasonable belief - More subjective
- Severely mentally ill or disabled
- Suffers from amnesia
- Unable to communicate with attorney
Examples of sane but incompetent:
- Children – no ability to speak to attorneys
- Someone who can’t speak English – would need a translator
- Someone in a comma
- Low IQ – not being able to understand how a trial works
Can raise incompetence at ANY TIME but usually at the initial appearance
Burden of Proof
- Defendant must prove incompetence by proponderous of the evidence
If deemed incompetent, defendant goes to an institution until he is deemed
Sometimes the state petitions for the administration of drugs so defendant can
become incompetent
- May hurt the defense strategy
If a defendant cannot become competent (low IQ) they are released, unless they are
a danger, and then they are civilly committed.
If the person is a minor, prosecution can wait until they come of age to try them
(unless the statute of limitations expires)
4 states do not allow this defense – although these states allow evidence of mental
illness to show that defendant lacked the mens rea for the crime
Mental illness is a medical term
Insanity is a legal term
- A person is not insane unless they are mentally ill
- A person can be mentally ill without being insane
- Utilitarian:
o Insane people are undeterrable by threat of punishment
 Counter:
Specific deterrence. The threat of punishment will
not deter the undeterrable but a person’s
undetterrability demonstrates their dangerousness.
Therefore, incapacitation is justified
General deterrence. Punishment can serve as a
warning to other who might think they can escape
punishment by claiming insanity
o Person lacked the ability to make the morally right choice
therefore, they are not culpable.
4 tests for Insanity
o The M’Naghten Test: Majority Rule
 Most narrow
 2 parts
 1. Defendant does not KNOW (appreciate) the
nature and quality of his act OR
 2. If he does know, he did not know (appreciate) that
he was doing something wrong
 Problems with test.
 Does “wrong” refers to the person’s awareness that
the act is against the law or morally wrong?
o In jurisdictions that use the morally wrong
test, the relevant issue is not whether
defendant believed his conduct was wrong
but whether defendant knew (appreciated)
that society considered his actions morally
 Some jurisdictions say that a person who commits
an act because God commanded him to do so is
legally insane
 Many jurisdiction use “appreciate” instead of “know”
 Test is exclusively cognitive (as opposed to volitional)
o The “Irresistible Impulse” Test
 Insanity applies where mental illness produces an
irresistible impulse to act
 Defendant can’t control himself
 When the person lacks free will
 Focuses on volitional aspect
 Used the supplement the M’Naghten Test
 Criticisms:
 Defendant’s ability to control themselves must be
completely lacking
 Mental health profession cannot accurately
determine this point
o The “Product” Test
A person is insane if his unlawful act was the product of a
mental disease or defect
 To be acquitted it must be proved that
 Defendant suffered from mental illness or defect at
the time of the crime AND
 “But for” the mental disease or defect, he would not
have committed the crime
 Test is good for defendants
 Few experts will say that if a person did not have the
disease, they would have committed the act
 Don’t need a certain degree of mental illness
 Criticisms:
o Test results in acquittal of detterrable
o Also results in acquittal of persons with free
o Gives experts too much influence
o The MPC test
 A person is not responsible for her conduct if, at the time of
the criminal act, as a result of mental disease of defect (a
term left undetermined) she lacked the substantial capacity
 1. To appreciate the criminality (wrongfulness) of
her actions OR
 2. To conform her conduct to the dictates of the law
 Avoids “all or nothing”
 Both prongs are modified by the phrase “lacks
substantial capacity”
 Appreciate instead of know
 Did not decide between moral wrong and legal wrong – this
is left to the discretion of the legislatures.
 States are divided on this
General Intent v. Specific Intent: 3 usages of the terms
General: Crimes where there is no intent element listed
o All you need is a generally culpable state of mind
Specific: Specifies the intent required – intent, knowledge, purpose, etc…
General: A crime of a higher mens rea – intentionally, knowingly, or
Specific: Reckless or negligent
General: A crime for which the mens rea element modifies only the
actus reus of the crime
Specific: A crime for which the mens rea modifies the actus reus AND
other elements such as
o Future Intent: Intent to commit a future act – possession of
marijuana with intent to sell
o Specific motive or purpose for committing actus reus –
touching the sexual organs of a minor with the purpose of
attaining sexual gratification – hate crimes
o Specific knowledge of attendant circumstances – possession
of a weapon known to be used in a prior crime
Defendant is not guilty if her mistake negates the mens rea of the offense charged
- Failure of proof defense
First question: Is the offense specific or general intent?
- Defendant is not guilty if her mistake of fact negates the specific intend
element of the offense
o Does not have to be reasonable, just genuine
People v. Navarro
Defendant believed that wooden beams were abandoned and he has permission to
take them
- Defendant is not guilty if, as a result of her mistake of fact, she committed
the actus reus of the offense with a morally blameless state of mind
o She aced without mens rea in the culpability sense of the term
- Mistake must be reasonable
o An unreasonable mistake does not exculpate
 A mistake is unreasonable if defendant was reckless or
negligent in his belief
- Exception: The Moral Wrong Doctrine
o There is no exculpation for a mistake when the facts as the actor
believed them to be would still be immoral (even if legal)
 Used in some jurisdictions even if mistake was reasonable
 By committing a morally wrong act, the actor assumes the
risk that the facts are not as they believed them to be
 Moral wrongness is judged from society’s standpoint not
the actors
- Exception: The Legal Wrong Doctrine
o Substitute “legal” for the word “moral”
 Used in some jurisdictions even when mistake is
o Defendant is guilty of whatever offense they actually committed
even if the crime they thought they were committing was a lessor
- A mistake of fact is never a defense
- No proof of mens rea, nothing to negate
General Rule
- A mistake of fact is a defense if it negates the mental state needed for any
element of the offense
- Doesn’t distinguish between general and specific intent
- Exception:
o Similar to legal wrong doctrine except that defendant is punished
for what they thought they were doing
General rule: Ignorance of the law is not an excuse
- Exceptions:
o Need 3 factors:
 1. The “unknown” offense criminalizes an omission
 2. The duty to act is based on a status condition rather than
 3. The offense is not prohibited in nature
General Rule:
- Factual Impossibility
o If the facts had been as defendant believed them to be, would his
conduct have been a crime?
 If yes, then factual impossiblility
- Legal Impossibility
o Pure
 When an actor engages in lawful conduct the she
incorrectly believes is a crime
o Hybrid
 The actor’s goal IS illegal but commission of the offense is
impossibile due to a mistake by the actor regarding the
legal status of some factual circumstance relevant to the
 Could easily be factual impossibility – NOT A DEFENSE
o Many states have abolished hybrid
People v. Thousand
Defendant charged with attempted distribution of obscene material to a minor.
Defendant argues impossibility since there was no minor.
- The defense is (hybrid legal) impossibility and is not available to a charge
of attempt
Factual impossibility is NOT A DEFENSE
General rule: A person is guilty of an attempt is his conduct “would constitute the
crime if the attendant circumstances were as he believes them to be”
NOTE: Most jurisdictions do not recognize impossibility and when they do they
follow the MPC
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