Printable Criminal Law Outline 2018

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I. Justification of Punishment
 Regina v. Dudley Stephens: cannibalism (death penalty commuted to 6 months)
o Utilitarianism: no punishment necessary because individuals will probably never be in this situation
again
o Retributivists: punishment is necessary because killing is empirically wrong
Utilitarianism (forward-looking consequentialism)
 Punishment must benefit society (i.e. by deterrence)
o Forward-looking: punishment is justified based on its good consequences
 (1) DETERRENCE: assumption that the threat of punishment will reduce future crime
o General deterrence  punish A to deter the entire community
o Specific deterrence  punishment A to deter A from acting again (includes incapacitation)
 (2) Consequentialism: focus on the consequences of punishment
o Notion that punishment might help an offender “change his ways”
 Punishment x probability of getting caught > expected gain from the acts
o Incapacitation
o Rehabilitation: punish A to deter A by reforming him through education, therapy, etc.
 Criticism:
o Uses people as means to an end (ignores the dignity of individuals for the sake of the community)
o Justifies the punishment of an innocent person (KANT: one man ought never to be dealt with merely as
a means subservient to the purposes of another)
 i.e. by arresting someone to stop a mob
o Rehabilitation: No clear evidence that reformation actually works
 Rehabilitation can’t fix systemic issues like poverty, education, racial discrimination
 Plus, this takes morality out of punishment (angers retributivist)
o Incapacitation: we can’t assume that all criminals are repeat offenders, or that another criminal won’t
full their spot (organized crime)
o Difficult to measure happiness/pain/pleasure by utility
 JJ Example: fine the person who is caught stealing coffee $5000
Retributivism (looking backward)
 Punishment is deserved because the wrongdoer violated society’s rules, and punishment should be
proportional to the harm created
o Punishment is based on the exact harm that was committed (righting a wrong)
 Punishment is deserved based on bad actions
o State of mind matters only in how much to punish (i.e. death), not whether to punish
o Retributivism allows society to hurt wrongdoer in response to the hurt he has caused
 Secures moral balance in society
 Allows wrongdoer to re-enter society free of his debt to it
o Reaffirms victim’s worth as a human being in the face of the criminal’s challenge to his dignity
 Forms
o Negative retributivism: an innocent person should never be punished
o Positive retributivism: punishment is required even if no deterrence goal can be served
 Criticism:
o Glorifies anger and legitimizes hatred (very emotional and irrational)
o Doesn’t benefit the individual
o Adds to society’s general suffering
 JJ Example: fine the person stealing coffee 50¢ since that’s what it’s worth
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Other Theories
 US law: general aim of general deterrence (consequentialism/utilitarianism) + retributivist concepts in
whether and how much to punish
o 18 USC §3553 (Sentencing Reform Act): The court shall consider
 (1) nature and circumstances of event and of the ∆ [individualized]
 (2) need of sentence to
 encompass the seriousness of the offense, [retributivist – respect for legal norms]
 to deter criminal conduct, [deterrence]
 to protect public, [incapacitation]
 to provide ∆ with corrective treatment [rebabilitation]
 MPC: limited retributivism
o Punishment must fit crime  realistically, this leads to a range of severity
o Utilitarian factors take over within that range
 Some things our society finds to be inherently wrong (malum in se)
 Some things we just say are wrong and make them crimes to make society function better (malum prohibitum)
o Today, almost every crime is codified in statute (as opposed to common law) because we want:
 Notice
 Stability in criminal code
 Legislature, not judiciary, to determine crimes
 Consistency
Sentencing Length
 Objectives to Sentencing (People v. Du):
o Protect society
o Punish ∆
o Encourage ∆ to lead law-abiding life
o Deter others
o Isolate victim
o Retribution for victim
o Uniformity in Sentencing
 Length:
o Retribution: you pay what you owe
o Utilitarian: you do what’s necessary for rehabilitation
 History
o Judicial discretion until 1970.
o NOW: mandatory minimums/sentencing guidelines/appellate review
 US v. Madoff: 150 year sentence (instead of just short of life) for symbolic reasons – comfort victims
 (Note: lack of letters of support = telling)
o Retribution: punishment should be proportionate to blameworthiness
 Social needs: trust was broken
o Utilitarianism: deterrence
 US v. Jackson: bank robbery committed 30 mins after being released from jail  life w/o parole
o Easterbrook: Intent of the statute = deterrence and incapacitation
 Personal deterrence obviously will not work here (career criminal)
o Posner (dissent): sentence is too harsh on retributivist grounds (∆ never inflicted physical harm).
 Deterrence problem: crime tapers off with age
 Deterrence problem: won’t deter other criminals who are clearly willing to undertake the crime
w a high probability of capture already
 People v. Du: Liquor store hold-up over OJ; Immigrant mom kills black teen.
o 10 years suspended sentence (vol. manslaughter)  probation (judge’s discretion)
o Judge Karlin’s goals of punishment:
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 Protect society
 Punish ∆
 Encourage ∆ to lead law-abiding life
 Deter others
 Isolate ∆ so she cant commit other crimes
 Restitution for victim
 Uniformity in sentencing
Other factors considered: hardened criminal? Who was the perp – victim or ∆? Criminal sophistication?
Danger to others?
Kinds of Punishment
 Gemantera: stole mail  sentence of having to wear sandwich board is UPHELD
o Shaming is legal if it accomplishes statutory purposes
 ALWAYS LOOK AT THE STATUTE to see its purposes
o Sentencing Reform Act: Punishment must reasonably related to crime
What to Punish
 We often criminalize risk-creating behavior for deterrence purposes (drunk driving, pulling out a gun)
 No punishment if
o (a) action is under domain of personal choice or
o (b) if punishment produces more harm than good
 Harm Principle: punishment is only justifiable if it prevents harm to others
o Modern harm questions
 Pornography  violence against women?
 Broken windows  dangerous or violent crimes?
 Low-level drugs  harm to everyone?
 Is criminal law always the best way?
o Other methods of deterring behavior = taxation, civil liability
 Victimless Crimes: prostitution, drug purchases.
o Often, society insists on criminalizing activities that people will do anyway  black market/organized
crime/high incarceration rates with little reduction
o Is decriminalization the answer?
 Harassment Statutes: legislation prohibiting bullying is often non-criminal
o MA harassment statute is criminal
o MPC §250.4: harassment statute
Statutory Interpretation
 Plain meaning  canons of construction (textualist, purposive, interpretive)  legislative history
 Pick out elements in statutory definition
 Recognize familiar terms (recklessly, etc)
 Apply statutory interpretation rules to resolve ambiguity
 Think about how policy affects interpretation
II. Legality and Proportionality
- All punishments need to be justified: culpability/retributivist/utilitarianism/consequentialist principles
- LEGISLATURES make the laws; Courts cannot fill in the gaps
Legality Principle
 Nulla poena (sine lege) = “No Punishment without law”
o Controls discretion, Limits arbitrary, vindictive, subjective enforcement of laws
o Constraints on punishment:
 Clearly specified criminal prohibition (notice; can’t be vague)
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 Enacted by the legislature (prevents unchecked judicial discretion)
 Prior to ∆’s conduct
Limits of Criminal Law
o Too little notice
o Too vague (law can’t be ambiguous or vague)
o Too much discretion (no common law crimes; legislature must enact statute)
o Retroactive application of laws
Crim Law DOCTRINES
o Mochan dissent pg 159: Court should not create common law crime where conduct was never known
previously to be a crime, nearly all states abolished common law doctrine that courts can create new
crimes, but
 States are constitutionally permitted to create common law crimes in limited circumstances
(Rogers v. Tennessee pg 181)
o No retroactive criminal liability (Keeler) (Papachristou)
o No criminal liability for vague statutes (Dauray) )Papachristou) (Morales)
 Laws must establish minimum guidelines to govern law enforcement
 Laws cannot be written in such a way that encourages arbitrary/discriminatory enforcement
(statutes should not delegate basic policy questions)
o Rule of Lenity: court’s interpretation of ambiguous statutes should be ∆’s favor (Dauray)
 Tiebreaker, but only when there is truly a tie about what legislature intended
 Ct. is more likely to interpret in ∆’s favor for malum prohibitum crimes
 Ct. sometimes invokes lenity to prompt legislative action
 POLICY: How soon do you give up on traditional statutory interpretation and turn to lenity?
Commonwealth v. Mochan: obscene phone calls. Indicted for intending to debauch, corrupt, embarrass, and
vilify victim, which is NOT prohibited by statute
o Convicted for violating common law crime
o DISSENT (Current Law): legislature must declare action a crime for it to be one
 Legislature determines what injures the public
McBoyle v. US: is a stolen airplane a “motor vehicle” which can’t be transported across state lines.
o Not a crime: plain meaning + leg. Intent = doesn’t refer to airplanes
o No fair warning for ∆
o Lower Ct. can’t change the meaning of the law
US v. Dauray: child pornography
o 13 separate pictures do not “contain” visual depictions because they are, themselves, visual depictions
o Rule of lenity  ∆ wins
 [MPC: don’t use lenity; just interpret it as best as possible]
 MPC §1.02(3): Criminal statutes should be construed according to the fair import of their
terms. In cases involving ambiguous language, courts are directed to construe statutory
language to further general purposes of criminal law and specific purposes of statute under
consideration. NO RULE OF LENITY
Keeler v. Superior Ct.: ∆ stomps on ex-wife’s pregnant belly; baby born stillborn
o Statute: murder = unlawful killing of a human being with malice aforethought
o Ct: this does NOT include killing a fetus
 No notice to ∆
 Ct. cannot increase scope of statute
 Ex post facto: statutes cannot be drafted to criminalize something that already
happened
 Rogers v. Tennessee: Ct can retroactively adjust interpretation of law, so long as change
is not unexpected or indefensible
o Common law for murder: victim had to die within a year + 1 day. Ct. overrode
this because they said it was outdated – medical advancements allowed
causation of death to be determined
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Lawrence v. Texas, 2003, SC: “majority can’t enshrine its values in legislation”  state cannot criminalize
private behavior in a statute (in this case, sodomy)
o Is consensual cannibalism ok under 14th Amendment reading in Lawrence v. Texas?
City of Chicago v. Morales, 1999: Loiter law, ordinance about gang activity and required disbursement
o Statute that criminalizes innocent conduct (“no apparent purpose”) and provides police with absolute
discretion to subjectively determine what violates the law is unconstitutional
o Ordinance that is too vague to provide sufficient notice or provide adequate guidelines to police
violates due process
Papachristou: statute outlaws wandering, frequenting bars, living off wages of minor children
o Unconstitutional because it’s overly broad, too much discretion, arbitrary enforcement
o Criminalizes innocent behavior mostly associated with the poor
Yates, 2015, SC: is a fish a tangible object? Court rules that legislature intended documents to mean written
information: where general words follow specific, they are interpreted to embrace objects similar in nature to
those objects described by the specific words
Dissent: Court overreached, tangible objects has clear meaning, clear meaning of it includes fish
MPC §250.6
o Bans loitering in a place at a time or in a manner not unusual for law-abiding individuals under
circumstances that warrant alarm for the safety of persons or property in the vicinity
o Since Morales, ordinances are typically upheld when:
 Target loitering with a criminal intent or where they are limited to loitering in a specific narrow
location (i.e. on a bridge)
 Don’t prohibit obviously lawful action (i.e. an ordinance banning prostitution that would also
prohibit hailing a cab)
 Don’t totally fall under “reasonableness” (i.e. speed law determined by grade/width/character
of road)
Limitations
o 14th A – Due Process
o 8th A – Cruel and Unusual
o Ex post facto, notice
o Separation of powers
o Undue discretion in enforcement: stop and frisk policies have been held unconstitutional where police
were racially profiling
o Lenity
Legislative history: Scalia very against it, but even he said when textual meaning is ambiguous it is okay to
resort to the canons of construction
Proportionality
 Punishment should be proportional to the gravity of the offense
o No theoretical limits, but we have philosophical and policy limits (hence, the need to justify the
morality of an inflicted punishment; can’t over-punish)
o Proportionality gives incentive for criminal to stop at lesser offense, even when greater offense would
facilitate lesser offense
 MPC §1.02: (1) to differentiate on reasonable grounds between serious and minor offenses; (2) to safeguard
offenders against excessive, disproportionate or arbitrary punishment.”
o MPC §1.02: Codifies 3 factors from common law
 (1)(d): Legality: give fair warning of nature of conduct constituting offence
 (1)(c): Culpability: safeguard conduct without fault from condemnation as criminal
 (1)(e): Proportionality: differentiate on reasonable grounds between serious and minor offense
 8th Amendment (cruel and unusual punishment can include excessive punishment)
 Retribution: lex talionis
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Purpose of crim law is to “render punishment within the range of severity proportionate to the gravity
of offenses, the harms done to crime victims, and the blameworthiness of offenders”
Disproportionate laws confuse moral judgments and bring the law into disrepute
o UNCERTAINTY about punishment and DISTANCE between offense and punishment weaken
punishment’s effects
Non-Categorical Approach: Ct. looks at ∆ and at the facts of the crime specifically
Categorical Approach: Ct. disregards specific facts of case; considers ∆ as part of a group
o Is there a national consensus against the punishment?
o Is the punishment unconstitutional?
Habitual Offender Laws:
o Ewing v. CA: California 3-strikes law (golf club theft)  25 years imprisonment
 Proportionality not just to offense but to all offenses taken together
 Legislature has decides that the problem of individuals who have not been previously deterred
by punishment is a severe threat to public safety.
 Utilitarian: the first punishment didn’t work well enough  longer 2nd punishment
 Retributivist: moral panic?
o Solem Factors
 What is the gravity of the offense and the harshness of the penalty?
 What are the sentences imposed for similar offenses in the same jurisdictions?
 What are the sentences imposed for commission of the same crime in other jdxs?
o Harmelin Factors
 Primacy of the legislature (deference to legislature)
 Variety of legitimate penal schemes (there are multiple ways to punish; Ct can’t judge state’s
choices)
 Federalism
 Proportionality should be guided by objective factors
STANDARD OF REVIEW FOR STATE SENTENCING LAWS
o State can choose any purpose of punishment (deterrence, retribution, consequentialism,
utilitarianism); as long as the state thought about WHY to impose this type of punishment and can
relate it to a clear objective, the court cannot not overrule the legislature.
 Dis the state spend time thinking about it? Does the sentence serve a legitimate purpose or
end? Did the state weigh costs and benefits? Is the sentence absurd?
 Ways SCOTUS can challenge state laws: (1) evolving standards of decency, (2) no one else does
it this way, (3) punishment is excessive under 8th Amendment
o Graham v. Florida: teen was arrested after a night that included a home invasion at gunpoint, 3
attempted home invasions, a police chase, and 3 handguns found in his car  sentenced to LWOP
because he was 6mo. Into his 3 years of probation
 SCOTUS: LWOP is unconstitutional for juveniles who don’t commit homicide
 We don’t need to worry about deterrence for kids; they’d grow out of it
 Retributive: Kids have less culpability; aren’t rational
 Incapacitation: we can’t assume that 17 y/o is incapable of rehabilitation
 Fair trial: juveniles are less likely to have a fair trial (don’t understand system and don’t
trust their advocates)
 Mandatory LWOP sentences are unconstitutional, even for homicide (SCOTUS)
 POLICY: look at offense and at offender.
 What’s the common practice in other states?
 Have standards of decency changed?
 Is the offense the worst possible type of offense (only murder gets DP)
 Should the offender be excused? (too young, mentally disabled)
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III. ELEMENTS OF A CRIME
Basic Elements (must all be proved beyond a reasonable doubt)
 Mens Rea: guilty mind
[must be a concurrence btwn act (not result) and mens rea]
 Actus Reus: voluntary act that causes a social harm (conduct)
 Causation and Result
 Attendant Circumstances: some other fact about the circumstances in which a crime was committed that is out
of the actor’s control (i.e. that someone is a minor, or that burglary must take place at night)
o Example: “sexual penetration carried out by force and without consent of the victim where D knows
that V hasn’t consented:
 Penetration = act
 Force = act
 Non-consent = attendant circumstances
 D knowing = mens rea
Actus Reus
Voluntary vs. Involuntary
 An act that causes a harm
o The statute must prohibit doing (conduct) rather than being (non-conduct) (Jones v LA, homeless)
o We don’t punish thoughts
o MPC §1.13(2): Act = a bodily movement, whether voluntary or involuntary
 Act must be voluntary [MPC §2.01(1)]
o Voluntary = Habits
o Voluntary ≠ Reflexes, convulsions, bodily movements while unconscious or asleep or hypnotized
(Newton, Deer, Cogdon)
 Most states: hypnosis is not a defense, for MPC it is
o An act producing unintended consequences does NOT make the consequences involuntary!
(Involuntary manslaughter)
o Time-slicing
 WHEN WAS THE VOLUNTARY ACT COMMITTED?
 Was the involuntary action a foreseeable consequence of earlier, culpable voluntary acts?
 Are you on notice about your habit/propensity to do/not do something?
 i.e. drinking 12 shots of vodka and then assaulting someone: drinking the 12 shots is
voluntary; involuntary action is a foreseeable consequence of that
 i.e. driving when you know you’re prone to seizures - Decina
 Only one act under a punishable behavior need be voluntary
 POLICY
o Punishment for an involuntary act has no deterrent value, makes the law seem unfair, and has no
retributivist value (involuntary acts are not blameworthy)
 Martin v. State: arrested for public drunkenness after being removed from home and place on highway in
violation of statute prohibiting being drunk on a highway
o Appearance in public was involuntary. He voluntarily chose to be drunk, but the violation of the statute
was not a foreseeable consequence of drinking at home,
 People v. Low: arrested for stealing a car; had marijuana in his sock. Charged with KNOWINGLY bringing
marijuana into a jail
o Conviction upheld: he had a chance to relinquish the marijuana to avoid the act. REALLY?!?!?
 State v. Eaton: same facts of bringing drugs in.
o Acquitted: he had no chance to give up drugs without incriminating himself  not voluntary
 Jones v. L.A. County: convictions for “sleeping in a street or public way” overturned
o Law criminalizes “being” homeless, which is impermissible. Unless the county can provide better
accommodations for homeless people, it cannot criminalize their existence
 Sleeping is involuntary (a reflex); voluntary part – you can stand, you can leave LA
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People v. Newton: D shot and killed police officer after being shot in the abdomen during a traffic stop
altercation.
o Jury may determine whether D was unconscious/in shock from blood loss from having been shot. If
unconscious/in shock  shooting was not voluntary
o (Although carrying the gun in the first place was arguably a voluntary act)
There’s always a risk-creating activity that could have been avoided – driving when you know
police are out to get you, perhaps speeding, carrying the gun, etc)
State v. Deer: woman acquitted of statutory rape because she claimed she was asleep (and that she, in fact,
was the victim)
o Trial Ct: it’s a strict liability (SL) crime; she has to prove she was asleep
o App. Ct: Before it can be a SL crime, state has to prove that it was voluntary
o Prosecutor has to prove voluntary act, even for SL crimes
Decina, : epileptic seizure while driving, caused 4 deaths
o The seizure causing the accident was involuntary, but the act of driving when he knew he was prone to
seizures and that they could cause harm was voluntary and reckless
o Time slicing can create a voluntary act
Cogdon, 1951: Sleepwalking mother who kills daughter while on a sedative
o She was on notice that she had been sleepwalking, but the sedative was a new condition  no
voluntary act established by taking it.
Negating the Voluntary Act vs. Putting Up a Defense
o Negating the essential act puts burden on prosecutor to prove otherwise
o An affirmative defense = ∆’s burden to prove
Acts vs. Omissions
 Omissions are crimes (acts) when:
o D could have acted (voluntarily chose not to) and
o D was under an affirmative legal duty to act
 Statutory duties (i.e. states where a driver witnessing an accident must stop)
 Contractual obligations (lifeguard at a pool, babysitter-charge)
 Status Relationship duties (parent-child, husband-wife)
 Imposition of Duty (D created the risk or harm and then didn’t fix it)
 Voluntary Assumption of Duty (D voluntarily assisted and then abandoned the situation)
 No common law duty to act/intervene
o Statutes would be vague
o Causation problem: non-act can’t be a cause
o Mens rea problem: is a bystander just in shock?
o People might misconstrue what’s happening (apparent wrongdoer might be an undercover cop)
o People make dumb mistakes (might administer poor medical assistance or unsafely fire gun)
 Not every moral obligation creates a parallel legal duty:
o Distinction between acts that affirmatively cause harm and failure of bystander to take measures to
prevent harm
 Jones v. US: mother left her baby in care of a babysitter, who let the child die of malnutrition
o Jury must decide if babysitter had a legal duty to care for child; conviction remanded
 Was there a statutory, relational, contractual, or voluntary legal duty?
 Pope v. State, 1979, Maryland: D allowed Norris and Norris’s baby to stay with her. Norris savagely beat her
child to death in D’s presence.
o No criminal liability for the bystander. D is only responsible for the child if she’s (1) the parent, (2) the
adoptive parent, (3) in loco parentis, (4) responsible for supervision of minor child. (Jury can’t be
motivated by “outrage” at D’s acts)
 Should she have intervened under Good Samaritan statutes? Should she have reported the
crime in the hours between the beating and the death?
 Good Samaritan
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o Some states make it a criminal offense not to come to a person in peril’s aid
o VT: duty to rescue if one “knows that another is exposed to grave physical harm”
o RI, Minn: duty in an emergency; criminal to refuse aid to person in peril
o FL: duty to aid if witnessing the commission of a sexual assault
o HI, WI: duty to aid if witnessing a violent instance
o Other states: duty is based on person’s physical proximity to the victim
State v. Martinez: D’s girlfriend beat her daughter in D’s presence
o Convicted under HI’s Good Samaritan statute
Misprison = duty to report (teachers, doctors, nurses: duty to report child abuse)
Distinguishing Acts from Omissions
 Medical omission: voluntary act of turning off machine? Or omission in failing to supply future care?
 Barber v. Superior Court: victim was in vegetative state post-surgery. At family’s request, doctors removed
victim from life support. Murder?
o Ending life support = omission;
o Duty to prove care evaporates once patient’s chances of survival or improvement disappear (killing vs.
letting die; administering lethal drug vs. ceasing to provide life-sustaining care)
Possession
 Possession statutes must have KNOWLEDGE of possession, even if he doesn’t know it’s illegal
 State v. Bradshaw: upheld conviction of trucker who unknowingly transported 77 lbs of marijuana
o Should he have known? Was his omission to investigate a crime?
Mens Rea (culpable mental state – cognitive, not about feelings)
Rationale
 Utilitarian: A defendant without a guilty mind cannot be deterred
 Retributivist: it is morally unjust to punish a defendant who accidentally caused social injury
Specific/General Intent
 Specific Intent Crime: where a crime requires that you commit an unlawful act with the intent to commit some
further unlawful act (i.e. burglary, assault with intent to kill) OR a situation in which an unlawful act is
committed with knowledge of some prohibited attendant circumstances (bigamy)
o Must prove the additional intent
 General Intent Crime: crimes that don’t require intent to commit any further unlawful acts OR crimes that can
be committed without knowledge of attendant circumstances (i.e. a man being arrested for bigamy when he
thinks/doesn’t know his first wife is dead)
MPC Mental States
 §2.02:
o (2)(a) Purposefully (2)(b) Knowingly (2)(c) Recklessly (2)(d) Negligently
(2)(a) Purposefully
(1) If the element involves the nature of his conduct or a result thereof, it is his
Conscious object/aim
conscious object to engage in conduct of that nature or to cause such a result,
Attendant circumstances –
AND (2) if the element involves the attendant circumstances, he is aware of the
awareness/hope/belief in them existence of such circumstances or he believes or hopes that they exist
must exist
vs. “intentionally” which includes awareness that conduct is certain to follow
(2)(b) Knowingly
(1) if the element involves the nature of his conduct or the attendant
Conscious awareness, practical circumstances, he is aware that his conduct is of that nature or that circumstances
certainty
exist, AND
Subjective: did ∆ actually
(2) if the element involves a result of his conduct, he is aware that it is practically
know? Willful blindness is NOT certain that his conduct will cause such a result
OK
(2)(c) Recklessly
When he consciously disregards a substantial and unjustifiable risk that the
material element exists or will result from his conduct. MUST be that his disregard
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Has both objective and
subjective parts
Subj: what ∆ believed at the
time
Obj: was his risk calculation
reasonable
(2)(d) Negligently
Objective standard
i.e. reasonable blind person
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is a gross deviation from the standard of conduct that a law-abiding person would
observe in the actor’s situation
[Consciously creates a risk]
When he should be aware of a substantial and unjustifiable risk that the material
element exists or will result from his conduct. MUST be that his failure to perceive
it is a gross deviation from the standard of conduct that a law-abiding person
would observe
[Inadvertently creates a risk]
2.02(3): if no mens rea in statute, element is satisfied if D acts at least recklessly
2.02(4): unless it is clear in the statute, a mental state provided at the beginning of the statute will apply to
everything that follows it (“if a statute doesn’t proscribe the culpability to a specific material element, it applies to
all material elements”)
2.02(5): if mental state is “negligence,” it can be satisfied with purpose, knowledge, or recklessness
2.02(8): “Willfully” = knowingly
2.02(7): Knowledge = knowledge of high probability, except when actual belief of nonexistence
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Regina v. Cunningham: man breaks into cellar, steals gas meter, accidentally poisons neighbor
o Statute: “whoever shall unlawfully and maliciously” endanger someone’s life…
o Maliciously = necessary mens rea
 Prosecutor must prove that D intended the type of harm or could foresee the type of harm
 MALICIOUS = foresight of consequences = at least reckless and maybe intentional (but NOT
wicked)
Regina v. Falkner: rum thief lights match to see in the dark, accidentally burns down ship
o D’s mens rea towards the commission of the lesser offense (stealing rum) CANNOT be applied to the
greater offense (burning down the ship) unless the greater crime was a foreseeable consequence of
the lesser offense.
o D may have been KNOWINGLY stealing run, but he was only NEGLIGENT in lighting the match
State v. Hazelwood: Exxon Valdez captain: should he be convicted under ordinary or gross negligence?
o Criminal negligence is harsher than civil negligence. Civil standard applied here (serves sufficient
deterrent function)
o CRIM STANDARD = greater deviation from ordinary standard of care than under CIVIL
Sajtillanes v. New Mexico: man cut child’s neck during an altercation
o “When moral condemnation attaches to conviction, the crime should typically reflect a mental state
warranting such contempt.” The court here took the word “negligent” in the statute to mean
“criminally negligent” such that there needed to be a grosser deviation from the standard of care to
find criminal liability than there would need to be in the civil context
Elonis v. United States, 2015, SC: D was charged and convicted under statute prohibiting interstate threats after
he threatened his ex-wife on facebook. D argued he did not intend to threaten anyone, but jury convicted
because statute did not specify mens rea and court instructed them to use a reasonable person standard to
determine whether postings were threats. SC overturned because while reasonable person standard is okay in
civil cases, it is too low for criminal, and because criminal convictions require a particular mental state – higher
culpability than negligence
Proving Mens Rea
 MPC §1.13(10): material element = not related to SOL, jurisdiction, venue, procedural matters
o Conduct
o Result
o Attendant circumstances
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Mental States can be Inferred
o From D’s acts and the circumstances
o MPC §2.03: If crime involves knowledge of attendant circumstances, you transfer the knowledge of the
attendant circumstances from one person to another?????
 Exception: if crime is defined in terms of identity of the victim (i.e. if ∆ shoots at a civilian and
ends up shooting a cop, he can’t be charged with intentional murder of a police officer)
Lesser Crime Principle: ∆’s mens rea can’t transfer to sustain conviction for more serious offense
Conditional intent: irrelevant under MPC
o i.e. a carjacker can be convicted under statute “taking car with the intent to cause death or bodily
harm” even if ∆ only points a gun to try to scare the V.
If “reasonable belief” is an element of a crime, then at least negligence is required
Presumptions: mandatory presumptions: jury is required to draw in the absence of contrary evidence. Only
constitutional when we can have confidence that over all criminal cases in general, the presumed fact will
always be present when the fact used to trigger that presumption is present
Permissive Inferences: Factual conclusions juries can draw, but are not required to.
Distinguishing Purpose from Motive
 Motive ≠ intent/purpose and only factors in in terms of sentencing
o A person may steal something in order to feed his daughter. Stealing something, codified as an offense,
was his intent. His motive was to feed his daughter, but this does not matter for conviction of the
offense, and only really factors in to the sentencing decision
o If A murders B in order to get B’s money, A’s intent was to kill and his motive was money
Distinguishing Purpose from a Wish
 Man giving his aunt a plane ticket hoping it would crash and it does, but just because out of sheer dumb luck.
He isn’t guilty even though it was his conscious object to cause her death.
Distinguishing Recklessness from Knowledge
 Recklessness = risk AND it’s substantial AND it’s unjustifiable. Does D have to be aware of all three?
o MANY STATES: Wrongly believing that there is little risk = reckless even though ∆ thinks he is being
careful (objective) (Welansky)
o MPC: subjective standard (what ∆ believed at the time)
 Opaque Recklessness: Awareness of some risk but inability to appreciate how serious it is. Falls
somewhere between recklessness and negligence, a finding of this kind of mental state is
insufficient to convict individuals of a crime that requires a reckless mental state
 Knowledge = high probability of element’s existence unless he actually believes that it doesn’t exist
o (Subjective)
o Willful blindness = intentional ignorance = positive knowledge only if government can prove that ∆’s
ignorance was solely and entirely a result of conscious purpose to avoid learning the truth (Jewell)
 Commonwealth v. Welansky: D operated a nightclub and an employee accidentally lit the place on fire, causing
a stampede that led to deaths. D was in the hospital at the time and thought that everything was fine.
o D acted recklessly – it’s irrelevant whether he knew that he had created a danger zone with flammable
decorations and insufficient fire exists. His failure to recognize the risk makes him culpable.
 US v. Jewell: driver who carried a package from Mexico to the US consciously didn’t investigate its contents (it
contained 110 lbs of marijuana)  willful ignorance = knowledge
 Recklessness plus what = knowledge? SC said D must take deliberate actions to avoid learning the truth, for it
to become knowledge. MPC does not expressly require this
 Ostrich: deliberately, rather than carelessly, bury their heads.
 US v Heredia, 2007: Jury instructed to find D guilty if she was aware of high probability of drugs in her car and
deliberately avoided learning the truth. Conviction upheld on appeal.
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Strict Liability
 Does statute require a mens rea?
o None of the elements has a mental state
o One element has no mental state
 MPC doesn’t like SL
 No culpable mental state is needed (i.e. Statutory rape, bigamy, regulatory/malum prohibitum)
o Actus reus is required
 Factors that make the court more likely to conclude that the legislature intended SL:
o Violation concerns neglect or inaction, rather than affirmative action
o Statute is regulatory or public welfare-based (i.e. drugs)
o There is no direct injury to any person or property
o The penalty is small
o Conviction doesn’t do grave damage to ∆’s reputation
o It was relatively easy for ∆ to find out the true facts before committing the action
 Criticisms
o Imposes sanctions (and “criminal” status) even when there’s no fault or intent
o Sanctions are stigmatizing
o No evidence that SL results in a higher standard of care
 POLICY: SL crimes ensure public safety and health, particularly when mental states are hard to prove
(Dotterweich)
 US v. Balint: violated Narcotics Act by selling opium derivatives. ∆s didn’t know it was opium.
o Proof of knowledge is not required by statute. Doesn’t matter that they didn’t know.
o (cheapest cost avoider? It’s easier for a seller to stop selling)
 US v. Dotterweich: convicted under Federal Food Drug and Cosmetic Act for mislabeled drugs. ∆ didn’t know
drugs were mislabeled
o Statute requires no mens rea as to whether ∆ knew drugs were mislabeled  SL
 Morissette v. US: ∆ took old bomb casings from an air force base and sold them. Charged for “knowingly
converting government property” (REGULATORY crime)
o Crimes that are malum in se (bad in themselves) necessarily include mens rea elements (no SL)
o Conviction overturned because prosecutors didn’t prove that ∆ had knowledge of the facts that made
the conversion wrongful, that is that the property had not been abandoned by its owner
 Today, theft crimes typically include mental states
 Staples v US: National Firearm Act requires registration for firearms that are “capable of automatically firing
more than one shot with a single pull of the trigger.” ∆ didn’t know that his weapon was capable of doing that,
so he didn’t register
o Statute requires proof that ∆ knew of the characteristics of the weapon making it a firearm
o Silence in statute by common law & MPC  PRESUMPTION against reading SL into statute
 Minimal mens rea is presumed when the statute is silent
o Why this isn’t SL
 1) not public welfare/regulatory offense
 2) statute is silent on mens rea
 3) sentence is too harsh (10 years) for SL
 4) No statement from Congress
 X-Citement Video: statute = “knowingly transports/ships or knowingly receives/distributes depictions of sexual
conduct with a minor:
o Defendant MUST KNOW that the depiction involved a minor engaged in sex acts
 Regina v. City of Sault St. Marie (Canada):
o Absolute (strict) liability = most efficient and effective way of ensuring compliance with minor
regulatory legislation
o When offenses don’t require proof of mens rea element, the standard of care is negligence (middle
position between full mens rea and absolute liability)
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Suggestion – 3 types of liability: full mens rea, SL, and middle (~per se/prima facie negligence with
option for ∆ to affirmatively prove that he took reasonable care)
 Pure SL approach: statutory rape – Prosecutor proves that act happened and that V is underage
 Sault St. Marie Middle approach: affirmative defense = ∆ reasonably believed she was over the
age of consent
MPC §1.04
Looking only at precise moment of harm, strict liability actor seems powerless to avoid criminality, but almost
always the actor could have avoided liability by taking earlier steps which were not impossible
Strict liability can see counterproductive because a) many SL crimes involve essentially “good” activities –
selling meat or medicines and b) people aren’t really made more careful by SL
Vicarious Liability
 Hesitancy to enforce vicarious liability sentences that come with imprisonment
o i.e. liability on parents for acts of children = violation of due process
o Vicarious liability imputes acts of one person to another = no mental states
 (liability is based on relationship, not mens rea)
 State v. Guminga: waitress served minor alcohol. Minnesota statute = owner is vicariously liable
o Vicarious liability in criminal context is a violation of due process.
 Can’t punish someone in a criminal context for acts he didn’t commit
Mistake of Fact/Law §2.02(9) [is mental state required?] and §2.04 [affirmative defense]
 MISTAKE OF FACT: Defense if it negates proof of a mental state element of a crime
o “I didn’t know the essential fact that makes this criminal” “I didn’t know it was cocaine”
 i.e. a tourist who thinks he bought a prostitute cannot be convicted of assault with intent to
rape
 MISTAKE OF LAW: Only a defense if it negates purpose/belief necessary to establish material element
o “I didn’t know that this was criminal”
o Mistaken understanding of law, mistaken belief that no law applies, good faith mistake.
 Goes to the “hidden” last element of every crime: “violating this statute is against the law.”
This statute has no mental state unless the statute specifies “knowingly.”
 Differences: a man’s car is repossessed but he doesn’t know this, so he breaks into the car. Mistake of fact that
it belongs to him is a DEFENSE, even though there are legal aspects (who has proper title). BUT a man who
breaks into a neighbor’s car can’t claim mistake of law that he thought it was legal to do that.
o NO DEFENSE if defendant mistakenly believes that no statute makes his conduct a crime.
o (JJ: they’re really the same thing: if statute requires purpose, one defense is “I didn’t have purpose”
but another defense is “I really thought that…”  both are the same thing)
 Moral Wrong Principle: D who knowingly performs a morally wrong act (in and of itself) assumes the risk that
the attendant factual circumstances are not as they reasonably appear to be  SL is ok
o Not really SL though because if you reasonably believed she was 18, then you’re negligent; and if you
had a hunch she was under 18, then you’re reckless
 Lesser Crime Doctrine: prosecuted for more serious crime using mens rea of lesser crime
o If D knows he is committing a crime but, based on his understanding of attendant circumstances, he
thinks that the crime is less serious than it is, he can be convicted of the greater crime
o He acted with a culpable mental state and ran the risk of attendant circumstances not turning out to be
what he expected them to be
o §2.04(2): “although ignorance or mistake would otherwise afford a defense to the offense charged, the
offense is not available if the defendant would be guilty of another offense had the situation been as
he supposed.”
 If you think you’re committing a lesser crime, you’re punished as if you did the lesser crime,
even if you’re convicted of the more serious crime.
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i.e. if ∆ steals a necklace that he thinks is worth $100, but it’s really worth $10,000  he will be
convicted of a felony since his actions would have been a crime even if the necklace had been
worth $100. BUT upon conviction, the grade and degree of the offense will be reduced to that
of the situation as he thought it was ($100 necklace)
Statutory Rape (Mistake of Age Defense?)
o ~20 states allow mistake of age defense for statutory rape
o Regina v. Prince: ∆ took unmarried girl under age 16 out of the possession of her father. She said she
was 18; she was really 14. [MISTAKE OF FACT]
 Statute has no mental states: “unlawfully taking an unmarried girl out of her father’s
possession without consent of her parent”
 MPC: use [at least] recklessness as the mental state when none is specified
 Ct: applies “knowing” to consent and possession and “recklessly” with regards to knowledge of
age
 Tender Years  you’re on notice that she might be young
o People v. Olson: statutory rape at knifepoint followed by consensual statutory rape
 NO defense for Mistake of fact as to age
 [legislative intent = to protect tender years]
o B v. Director of Public Prosecution (England): 15 y/o boy fried to get 13 y/o girl to perform oral sex. He
thought she was over 14
 YES defense
 The appropriate standard is “honest belief”
 At least recklessness must be proved, not just negligence
o Garnett v. State: 20 y/o ∆ with IQ of 52 had sex with a 13 y/o
 No defense  Strict Liability
 Statutory rape is part of the moral wrong theory: if you’re so incapable of refraining from
having sex with someone underage, then don’t have sex at all.
o MPC §213.6: Strict liability if the child is under 10 years old.
 Mistake of age defense if the child 10-16 years
o POLICY: Arguments FOR SL for statutory rape
 State wants to protect victims
 State wants to prevent trial from focusing on the victim’s age or maturity
o POLICY: Arguments AGAINST SL for statutory rape
 State shouldn’t criminalize private behavior (Lawrence v. Texas)
 Mandatory sentencing laws are increasingly taking into account the age of the perpetrator
MPC §2.04 Comment: significance of ignorance of fact or mistake as to such a matter is determined by the
mental state required for the commission of the offense
o Ignorance/mistake is a defense when it negates the existence of a state of mind that is essential to the
commission of an offense, or when it establishes a state of mind that constitutes a defense.
o EXAMPLES
 Rape: if statute says that ∆ must intend to have intercourse, then a mistaken belief that there
was consent still makes ∆ liable. BUT if statute says that ∆ must have intended unconsented-to
intercourse, then a mistaken belief (even if unreasonable) that there was consent IS a defense
under the MPC.
Mistake of Law Cases
o If knowledge is an element of the statute
 P must prove that ∆ knew of the law (i.e. SNAP fraud)
o If knowledge is NOT an element of the statute
 P only has to prove that ∆ broke the law (i.e. speeding)
o People v. Marrero: statute bans unlicensed, loaded firearms unless one is a “peace officer,” defined to
include corrections officers at state or any penal correctional facility. D, a corrections officer at a
federal prison, carries gun in NYC nightclub
 ∆’s reasonable mistaken belief that a statute doesn’t apply to his conduct is no defense
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o
o
o
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Cheek v. US: failure to pay income taxes based on misinformation from libertarian group claiming that
tax laws are unconstitutional
 Knowledge of the law is required under statute BUT whether he had knowledge of tax duty is
a FACTUAL question
 Other ways to challenge constitutionality: file and request refund
MPC §2.02(9): mistake about existence or meaning of the law defining the offense is a defense if the
law itself allows that defense
Type of Awareness
 Awareness of specific statute at issue
 More general awareness that acts committed were unlawful; or
 Merely awareness of what acts were committed
Do you need to know that the law exists to know that you’re violating it?
 YES
 US v. Int’l Minerals: ∆s must know that their actions violate the regulation, not of the
existence of the regulation
 Liparota food stamps): Awareness of acts that violated the law was NOT enough. ∆
must know that his actions violated the law. Prosecutor must show that ∆ KNEW and
broke the law
 NO
 US v. Ansaldi: ∆ sold date-rape drug. Knowledge of, or intent to break law is not
element
 US v. Overholt: ∆ charged with “willfully” violating Clean Water Act. Violation DOESN’T
require proof of knowledge of the regulation violated.
Reliance on representation of an official – DUE PROCESS LIMITATION
 Common Law: NOT a defense; act still violated the law
 MPC §2.04 commentary: official reliance can be a defense
 MPC §2.04(3)(b): reliance defense is available when ∆ “acts in reasonable reliance upon official
statement of the law, afterward determined to be invalid or erroneous
 Raley v. Ohio: government official told ∆s they could invoke 5th amendment. Convicted
of attempt. NO RELIANCE DEFENSE
 US v. Albertini: trespass for protecting Naval Base (1st protest  convicted  9th Cir
overturned  2nd protest SCOTUS overturned 9th Cir)
o 2nd protest = protected by defense (based on 9th Cir ruling)
 Lambert v. CA: local ordinance required visiting convicted felons to register with the
police. D was unaware of law.
o Conviction violated due process: Defendant’s conduct was passive. His duty to
act was based on his status not his activity. He was given no notice and the
offense was malum prohibitum.
o *THIS ISN’T STATUTORY INTERPRETATION. This is judicial review
Entrapment by Omission
 Bryant: Judge who didn’t tell sex offender that he’d have to register in any state
  no MOL (registering is so commonplace that he was on notice)
 Leavitt: Judge told him that he couldn’t possess a firearm during his 1 year probation, so he
bought one after probation was over
  MOL DEFENSE (denial of due process to force him to speculate
 Wilson: Judge didn’t tell him during protection order hearing that he’d have to give up his gun.
  NO MOL defense (a knowing violation of the statute only requires proof of
knowledge of ∆ of facts that constitute offense)
Cultural Defenses – generally no
 Deny justice to victims
 Makes law too lenient for immigrants
 Should it come in at sentencing, even if not at conviction?
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o
Arguments FOR
 Advances liberal values of diversity
 Individualized justice
 Cultural pluralism
Limitations (Due Process, Cultural Defenses)
Involuntary Act Defense
 Baker: Malfunctioning cruise control = insufficient defense
o Car was under driver’s control. Speeding = SL
o (a proper defense = THERE WASN’T AN ACT)
 Acts of children (i.e. truancy)
o What if parent’s act was involuntary and child just refused to go to school?
IV. Rape
Forcible Rape traditionally requires two elements
1. Lack of Consent
a. Circumstantial evidence
b. External evidence
c. Resistance Requirement?
2. Use of force in effectuating sexual intercourse (Actus Reus)
a. Threat (objective “reasonable apprehension”) of force can stand in for force
b. Physical force? Psychological or economic pressure?
i. Force sufficient to overcome resistance
Actus Reus
 Requirements: lack of consent + sexual intercourse secured by force
 Traditional view of force: must be more than that required for the sex act itself
o Woman is expected to physically fight back as much as she can
 Criticized view bcz doesn’t accurately reflect many cases of rape
o The threat she fears must be of death or serious bodily harm (can be to 3d party)
 So not force for principal to tell HS senior she won’t graduate unless she has sex
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Criticisms of traditional view: (1) some w freeze when in this situation with numbing fear or panic, w
sometimes taught as girls to remain passive with rapists to not get hurt further, (2) resisting a rapist can be
dangerous, (3) all that matters is consent/non-consent and the violation of a woman’s autonomy, not the
outdated notion of marital property and violence
o I agree with rationale (3), and adopt a modern approach to rape. Some questions to consider when
drafting a statute would be, (a) should all forms of nonconsensual intercourse be criminalized, (b) how
should non-consent be proved without re-instituting sub silentio the requirements of force and
resistance, and (c) should some or all nonforcible forms of prohibited nonconsensual intercourse be
graded as a lower degree of rape than the forcible variety? (no to last one, but maybe add on battery to
capture violence aspect)
Intermediate approach: although there must be threat or force sufficient to overcome resistance, verbal
resistance is enough
o Threat can be inferred from actions
o Is a totality of circumstances test – must show coercive environment
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Modern approach (State in Interest of MTS): if no “freely and affirmatively given” consent, the only force
necessary is that to complete the sex act
Force Requirement (changes over time) + resistance necessary?
MPC §213.1 Rape. A male who has sexual intercourse with a female not his wife is guilty of rape if:
(a) he compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or
kidnapping, to be inflicted on anyone; or
(b) he has 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; or
(c) the female is unconscious; or
(d) the female is less than 10 years old.
Rape is a felony of the second degree unless (i) in the course thereof the actor inflicts serious bodily injury upon
anyone, or (ii) the victim was not a voluntary social companion of the actor upon the occasion of the crime and had
not previously permitted him sexual liberties, in which cases the offense is a felony of the first degree.
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RESISTANCE as Means of Demonstrating Force
o Rusk: took her car keys, creepy/aggressive look, “light choking”
 Convicted on the ground that there was sufficient evidence for jury to find that a threat of
force sufficient to overcome resistance was present
o Resistance Requirements:
 Some jdxs require no resistance requirement (still highly probative on consent)
 At least half of all jdxs require “reasonable resistance”.
 Several (Alabama) require “earnest resistance”
 All Cts recognize situations where resistance unnecessary, like when a woman is raped at
gunpoint. In those cases, the reasonable amount of resistance is no resistance at all.
 Rationale: Distrust of a woman’s testimony regarding sexual assault. Evidentiary value in
showing a true lack of consent. “Marks the bright line” b/w seduction and rape
 MPC §213.1(2): permits conviction when submission is compelled by threat that would prevent
resistance by “a woman of ordinary resolution”
Economic and Psychological Pressure = force?
o Typically not considered when judging the sufficiency of force
o Rationale for excluding: line drawing problems (single mom moves in with guy who supports her and
her kid), statutory problems
o Criticism of excluding: we’re left with too narrow a concept of force. Goal of rape law should be to
preserve sexual choice, and inappropriate economic and psychological pressure can override this
choice
o DiPetrillo: boss brings employee into his office, takes off her clothes. Statute requires “force AND
coercion”
 NOT guilty: overturned lower court’s finding of psychological coercion (it’s not coercion as in
the sense of someone holding a gun to your head)
o Burke: police officer telling you to drive to an abandoned spot = coercion
 GUILTY: Police officer = position of authority  coercion alone is enough
o Alston: domestic violence  break up  rape
 NOT guilty: no evidence of force
o Thompson: principal threatens student with inability to graduate = coercion
 NOT guilty: statute requires force, not just coercion, and there was no force here
o Mlinarich: guardian threatened to send victim back to juvenile detention
 NOT guilty: there was no force, just coercion
Sex Trafficking
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Congress enacted Trafficking victims protection act (pg 382) – tries to capture imbalance of power
between trafficker and victim, so serious harm can include psychological and financial
Eliminating Force Requirement
o In some jurisdictions, if the intercourse is nonconsensual, then the penetration automatically satisfies
the force requirement
o State in the Interest of MTS (NJ) 17-yr-old ∆, 15 yr-old V. V says she woke up to find that intercourse
was happening and ∆ says that it was consensual.
 MPC §213.1(a) “compels to submit” = more than token resistance [NOT adopted in NJ]
 NJ Rule: any act of penetration without affirmative and freely given consent is sexual assault
 V is no longer required to resist
 FACTFINDER: is ∆’s belief re: affirmative consent reasonable?
 Wisconsin: third-degree sexual assault – without consent, no resistance requirement
o MC v. Bulgaria: 2 men accompanied 14-yr-old girl from disco bar to reservoir and had sex
 Local Bulgarian Law: physical resistance is required to prove that there was force
 European Law: coercive circumstances can make sex nonconsensual even in absence of force
Absence of Consent
o MPC §213.2(b): he knows that she suffers from a mental disease or defect which renders her incapable
of appraising the nature of her conduct
o MPC §213.1(b): liability if ∆ (1) administers intoxicant (2) w/o V’s knowledge (3) for purposes of
preventing resistance
o NY Penal Law: lack of consent = victim clearly expressed lack of consent AND a reasonable person in ∆’s
situation would have understood such person’s words and actions as an expression of lack of consent
o Haddock: statute doesn’t protect alleged victims who voluntary ingest intoxicants
o Bache (MA): test is whether complainant was so impaired as to be incapable of consent
o Smith (KS): JURY determines whether victim was drunk enough to [not be able to] consent
o Giardino (CA): intoxication can invalidate consent even when not physically incapacitating
o Smith (CA): even poor judgment is reasonable judgment
o Al Hamdani (WA): BAC of 0.15 = incapable of consent
o California Test [p. 382]
Deception as Means of Getting Consent
o People v. Evans: ∆ used ruse of being psychologist to convince V to go home with him. “I could kill you. I
could rape you. I could hurt you physically.”
 Deception, fraud, trick, strategy ≠ rape
 The controlling state of mind is that of the defendant who is charged with rape
 POLICY: we don’t allow seduction to overcome resistance, because then everything would be
rape
o Boro v. Superior Ct.: ∆ tricks V into sleeping with him for “medical treatment” of fatal disease
 Not rape because V knew she was engaging in intercourse. The fact that the intercourse was
obtained by deception is irrelevant.
o Fraud in factum (i.e. doctor claiming to inset medical device but actually penetrating women)
o Fraud in inducement (the fraud in Boro went to the attendant circumstances, but she did technically
consent to intercourse)
Mens Rea
 General Intent
 Mistake of Fact defense requires an honest and reasonable belief in consent. (OBJECTIVE)
o Commonwealth v. Sherry: gang rape – she was held captive in a room with 3 men who believed she
consented. It looks like rape.
 Ct: mistake of fact must be reasonable (i.e. the required mental state is NEGLIGENCE)
 When a woman says no, anyone who proceeds to have sex with her assumes the risk that the
no meant no.
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Commonwealth v. Fischer: college students engage in activity throughout the day. Sufficient elements
to conclude that the actus reus has been satisfied, but ∆ claims MoF re: consent element
 Ct makes rape basically SL: moral, intellectual, psychological force satisfies force element
POLICY: Dispensing with reasonable, mistake-of-fact defense when force is already not a required element
makes rape SL. We need mens rea to keep
POLICY: General ratings: force > fear / penetration > nonconsensual touching
POLICY: what elements would you include in a rape statute?
POLICY: Proposed model statute defining consent and other things – pg 427
POLICY: what are other ways to change social norms? Are they better/worse, likely to be more/less effective
than changes to criminal sanctions?
VI. Homicide
 Killing of a human being by another human being
 Traditional homicide statutes (Mostly modeled after Pennsylvania):
o First degree murder: Intention to kill + premeditation OR felony murder for certain enumerated
felonies (capital punishment available if met)
o Second degree murders: All other murders with malice (incl. mere ITK w/o premeditation, or homicides
that are committed in the course of felonies not covered by the statute, or “depraved heart” killings, or
homicides that resulted from attempt to commit serious bodily injury )
o Voluntary manslaughter: i) Intention to kill + heat of passion, ii) criminally negligent homicide. iii) an
unintentional killing that occurs during the commission of a misdemeanor
o Involuntary manslaughter: Reckless homicide, intent to cause GBH
 MPC 210.2: Murder: P/K or R with extreme indifference to human life
 MPC 210.3: Manslaughter (R or P/K with EED)
 MPC 210.4: Negligent homicide (N)
 Murder v. Manslaughter
o Murder = Malice. ∆ acts with requisite malice if:
 Intention is to kill another human
 Intention is to inflict grievous bodily injury on another
 Extremely reckless disregard for the value of human life
 Intention to commit a felony during the commission of the act that causes death
o Manslaughter
 Act committed in sudden “heat of passion” as the result of adequate provocation
 Result of an act, lawful in itself, but done in an unlawful manner, and without due caution and
circumspection
 Occurs during the commission of an unlawful act
o MPC – no grades of murder.
Intentional Killing
MPC §210.2(1): MURDER = “(a) Purposeful or knowing OR (b) committed recklessly under
circumstances manifesting extreme indifference to human life”
No distinction between 1st/2nd; no premeditation
 (1) Premeditation
o State v. Guthrie: work friend whipped him on the nose with a dishtowel. Body dysmorphic disorder 
takes gloves off, walks over, stabs guy in neck and arm.
 Premeditation requires TIME between forming intent and the act
 If ∆ has time to weigh the decision between forming the intent to kill and actually killing, then
it’s 1st degree murder
 Most jurisdictions don’t have a rule to say how much time is required
o (more than “hot blood”)
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o Is a moment’s deliberation enough?
Commonwealth v. Carroll: (No time is too short) Wife badgered him so he reached up and grabbed the
gun by his bed and shot her. He claims there wasn’t enough time for it to be premeditated
 Statute: “willful, deliberate, and premeditated” make the crime 1st degree
 Ct: A defendant can premeditate instantly.
 POLICY: everyone has irresistible impulses. Can’t make them all defenses.
o Anderson: violent explosion; mutilates 10 y/o  NOT premeditated (no time to form intent)
 Factors that are helpful, but not dispositive, in determining premeditation: (a) Planning
activity, (b) prior relationship, (c) motive (d) evidence that the manner of killing was so
particular and exacting that it betrays a preconceived plan
o Forrest: planned mercy killing  1st degree murder
o POLICY (Premeditation):
 Ways to grade heinousness of murder:
 Retributive: which killers deserve most punishment? Which are most morally
depraved?
o Lack of premeditation seems like an aggravating factor (Anderson) while
premeditation seems like a mitigating one (mercy killing)
 Utilitarian: Which category of killers most dangerous; need most deterrence?
o Premeditation gets at the cold, calculating person who is easier to deter
o Fundamental Q When Choosing Between Carroll and Guthrie/Anderson approach:
 1st/2nd Murder Distinction  jury has more discretion to determine sentencing
 Carroll approach gives (too much?) discretion to the jury to determine whether it’s 1st
or 2nd degree (whether intent was formed instantaneously)
 Under MPC, judge has more discretion (heinousness considered at sentencing; no grading).
 Should we just get rid of the distinction and make the sentencing decisions ex post?
(2) Provocation: Mitigation to Voluntary Manslaughter
o WM = intent to kill + adequate provocation + heat of passion – sufficient cooling time
 ∆ must raise provocation defense
o MITIGATION FACTORS (Maher)
 Passion
 Heat of blood
 Adequate provocation
 No time for blood/passion to cool (no cooling time)
 Temporary excitement
 No wickedness
 (Can’t elicit the provocation)
o MPC §210.3: provocation ≠ affirmative defense. Only a downgrade if D REASONABLY acted under
influence of Extreme Emotional Disturbance (EED) under circumstances as he believed them to be
 (1) Was there EED?
 (2) Is the disturbance reasonable?
MPC doesn’t require heat of passion, cooling off (sounds like an EXCUSE…)
 REASONABILITY UNDER MPC: from the perspective of D as he believes circumstances to
be
o Given ∆’s demographics, age, sex, size, mental status
o Handicaps (i.e. blindness) are taken into account; moral values are not;
children = reasonable child of that age
o No immigrant values excuse, NJ has no battered woman excuse
o Utah/CT: provocation and killing don’t have to be contemporaneous. “Hot blood” and killing do
o POLICY (Provocation): why have provocation when most “rational” people wouldn’t kill, even when
provoked? The whole idea of provocation is that you can’t control yourself; you’re not thinking about
the rules/deterrence at that point.
o If D was acting “involuntarily” because of the passion, why is provocation only a partial justification?
o
20


o
o
o
o
o
Must the provocation happen in D’s presence? Or is it enough that D hears about it?
Provocation for witnessing adultery of spouse, marital disputes (no, murder almost always
follows marital spat), homosexual advances (no: hate crime)
Girourd v. State (MD): wife verbally attacks husband, who lunges with a knife he had hidden
 Adequate provocation = inflaming the passion, causing reasonable man to act out of passion,
not reason.
 Provocation requires conduct, not mere words. (although she reported to superior…)
 ∆’s mental illness is not important. Standard is objective test of reasonableness
Maher v. People (MI): assault with intent to kill man who was sleeping with ∆’s wife. Wants simple
assault.
 Question of FACT: whether reason is disturbed by passion so as to make a reasonable man act
rashly without due deliberation, and from passion not judgment
 (Here: enough evidence for jury to find this satisfied)
 OBJECTIVE (would a reasonable man act rashly) and SUBJECTIVE (did this ∆)
People v. Casassa (NY) (MPC Approach): she rejects his advances, he stalks her and, after getting
rejected again, stabs her and submerges her in the tub “to make sure she’s dead”
 (1) Was disturbance OBJECTIVELY reasonable?
 (2) Was D SUBJECTIVELY under emotional disturbance?
 Extreme Emotional Disturbance (EED) – includes smoldering (not immediate)
POLICY: (Wo)manslaughter: justifications/excuses of EED, provocation do not adequately protect
women. Law should take normative stand. (But what about battered women who kill?
Cooling time: often destroys provocation defense, but not always (rekindling)
Unintentional Killing
 Involuntary Manslaughter / Negligent Homicide
o Involuntary manslaughter: reckless conduct + intent to commit great bodily harm
o Contributory negligence not defense to manslaughter, but can raise questions about causation
o Commonwealth v. Welansky (MA): nightclub fire with locked doors, blocked exits, flammable décor
 Actus reus = omission
 Manslaughter = conscious disregard for substantial risk that conduct would cause risk
 Wanton / reckless: indifference or disregard of probable harmful consequences
 Recklessness vs. Negligence: if the thing you should have known is so great, it’s reckless
because of the gravity of the danger.
 Criminal negligence = departure from ordinary/prudent man as to be incompatible with
common regard for human life
 California: involuntary manslaughter includes death that result from lack of “due caution or
circumspection”
o MPC §210.3 / 210.4: manslaughter vs. negligent homicide: distinguished by whether ∆ was aware of
the risk he was creating (Manslaughter = CONSCIOUS disregard)
MPC §210.4: Negligent Homicide = negligent (not aware of the risk)
o
o
People v. Hall (CO): ski resort employee collides with and kills skier (rare!).
 Yes, Reckless manslaughter – consciously disregarded substantial and unjustifiable risk that
death could result
 Substantial (improper techniques) + unjustifiable (skiing for his own enjoyment only) +
gross deviation (high speeds) + unreasonable deviation (trained skier = he was aware of
risk)
 Substantial risk is NOT something that’s 50% or more likely
State v. Williams (WA): baby’s toothache becomes gangrenous and he dies.
 Yes, manslaughter – parents’ failure to act = prox. cause because they were ON NOTICE
21


o
Policy: deterrence (comment to §2.02)
MPC rejects Individualized Standard: heredity, intelligence, temperament don’t matter (in
Germany, prosecutor must prove ∆ was capable of recognizing risk)
Toddler Sleeping Bag HYPO: substantial risk (rare action) + justified (does play justify roughhousing?
Does the kid need this to calm down?) + gross deviation (it’s done infrequently, but it’s not more
dangerous than talking on a cell phone in the car, which is dangerous but not a gross deviation) + risk
(would a reasonable actor in ∆’s situation KNOW the risk?)
We require less of someone who is subjectively less
aware
Williams: held to an objective standard regardless of
awareness/ability
Welansky: either you knew, or you should have
known.
SUBJ part: we require a minimum amount from
everyone but we hold ∆ to a higher standard if more
aware
OBJ part: if you didn’t recognize the risk, still
responsible
MPC and Hall: we hold people to a standard based on
ability

Reckless Murder
o Commonwealth v. Malone (PA): Russian roulette. 17 y/o kills 13 y/o. Kid thought there was a 0%
chance; court says there was a 60% chance of death. Statute calls for malice.
 “The intentional doing of an uncalled-for act in callous disregard of its likely harmful effects on
others”  playing with guns here seems to be the callous disregard
 Similar to MPC §210.2 (reckless – under circumstances manifesting extreme indifference to the
value of human life)
22

o
o
o
M1
Even without knowledge/purpose, you can behave in a manner that is so reckless
that it is as if you are consciously disregarding human life (depraved heart)
US v. Fleming (4th): man with BAC of 0.315 drives at 70-100 mph in a 45 mph zone. Hits victim when
going 80 in a 35 zone. Statute needs malice aforethought, which is roughly equal to reckless/wanton +
gross deviation + awareness of risk.
 Standard: did he operate his vehicle in a way that demonstrated disregard for life/safety of
others?
 Time-slice
Drunk Driving
 MPC §210.2(1)(b): Requires proof that ∆ acted recklessly under the circumstances manifesting
extreme indifference to the value of human life (inadvertent risk creation ≠ murder)
 BUT MPC §2.08(2): Recklessness need not be shown if ∆ was unaware of the risk because of
voluntary intoxication
 State v. Dufield (516): extreme indifference ≠ mental state. It’s gross deviation
COMMON LAW
Intentional killing
Unintentional killing
(premed is obj criterion)
(awareness of risk is obj criterion)
“Premeditation”
Felony murder (enumerated)
M2
Unpremeditated (Anderson)
Manslaughter
Adequate provocation + Heat of
Passion – Sufficient Cooling
Time
Gross R (“depraved heart”) (Malone)
Felony murder (unenumerated)
Gross N (“wanton/reckless”) (Welansky)
o
Felony Murder
 Inherently Dangerous Felony Murder Limitation
o (base felony’s abstract inherent dangerousness, foreseeability of death, probability of death)
o Eliminates mens rea element of murder (SL) as long as D had the mens rea for the lesser crime
 POLICY (felony murder): maybe we’re comfortable with punishing the carelessness with which
the death was caused. PURPOSE = including an increased punishment provides a mechanism
for deterrence from killing. But it is disproportionate??
o Must still prove actus reus and causation: but-for and proximate (natural and probable / foreseeable)
 Broad Rule: Any felony that leads to death can generate murder conviction
 Narrow Rule: Felony must be one in which the underlying behavior is reckless (like malice) and
inherently dangerous
o MPC comments to §210.2: “the fact that an actor is engaged in [robbery, rape, arson, burglary,
kidnapping, etc.] creates a REBUTTABLE PRESUMPTION [§1.12(5)] that the required indifference and
recklessness existed.
 [Note: MPC doesn’t like SL or getting rid of mens rea requirements]
o Misdemeanor Manslaughter (unlawful act doctrine): involuntary manslaughter without proof of
recklessness/ negligence OR killing in commission of a non-felonious act (would normally be an
accident)
 Limitations
 Unlawful act must be proximate cause
 Cannot apply to regulatory matters (malum prohibitum)
 Some states limit application to misdemeanors that rise to the level of criminal
negligence
o Limitations to Felony Murder
 Is the underlying felony inherently dangerous IN THE ABSTRACT (based on its elements) or AS
COMMITTED?
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


Policy (felony murder): many states are moving towards getting rid of FM by pushing it so that
it overlaps with reckless murders
 Statutes have limited by restricting to certain felonies, grading, requiring homicidal mens rea,
permitting affirmative defenses
o Regina v. Serne (Eng.): father burns house down for insurance, kid dies  not guilty
 Murder if (1) killing of another person with intent to commit a felony, and (2) knowledge that
felonious act was likely to cause death
o People v. Stamp (CA): burglarized victim’s store, causing him to die of a heart attack
 Need causal relationship between felony and death (natural and foreseeable consequence)
 Take your victim as you find him
o People v. Phillips (CA): Chiropractor induces parents to pay $700 for eye cancer surgery; child dies. Dr’s
actions were felonious (grand theft = theft by false pretenses).
 Grand theft is not inherently dangerous, so it cannot be used as the underlying felony for
felony murder
o Hines v. State (GA): convicted felon mistakes friend for a turkey and shoots friend.
 Ct: possessing a firearm as a convicted felon IS inherently dangerous + shooting at dusk created
a foreseeable risk of death  yes FM
Merger Doctrine
o Merger = if felony was an integral part of the homicide and is included within the offense  CANNOT
CHARGE FM; must charge murder and assault (and prove mental states for each)
o POLICY (felony murder): without merger doctrine, FM would swallow murder since there are almost
always smaller crimes committed on the way
o People v. Robertson: shot to scare someone stealing his hubcap; killed thief.
 IRONY: since D didn’t intend to kill, prosecutor used felony of discharging firearm in grossly
negligent way to bring FM; had he intended to kill, the crimes would not have merged
o People v. Burton (CA): killed a person while committing armed robbery
 Armed robbery  taking property (not murder)  no merge
 Ireland: felony murder may not properly be given when it’s based on a felony which is an
integral part of homicide (Ireland: you cannot base FM on assault because then you’d never
have to prove purpose or knowledge)
 Wilson: court allows basis felony of burglary with intent to commit assault with a deadly
weapon to merge with murder
 Burglary can’t merge if intended felony was assault with a deadly weapon.
 Wilson did the same thing as Ireland but went into a house to do it. Since Wilson’s
purpose was to steal money, the assault CAN merge
 Difference between
 (A) Deaths resulting from assault with a deadly weapon where the purpose was the
very assault was the very assault that caused the death (No FM), and
 (B) Deaths resulting from conduct for an independent felonious purpose, such as
robbery or rape, which happen to be accomplished with a deadly weapon (FM)
 POLICY (felony murder)
 Ironic Problem – people who aren’t going to get FM while those who try to kill will be
protected by merger. Inherently Dangerous Limitation makes more sense because it
restores the mens rea requirement
o People v. Chun: D shoots from the backseat of a car, “intending to scare,” but kills rival gang member’s
sister and friend.
 No FM, assaultive felony (intending to scare) cannot serve as basis for FM
 Look at the elements of the crime, rather than at the facts at issue. If elements have
assaultive aspect  merge with homicide
Killings Not “In Furtherance” of a Felony
o FM applies when killing is done in furtherance of a felony
o Lethal act is after commission of a felony
24
o
o
o
o
o
o
Lethal act is unrelated to the felony
Lethal act is committed by someone resisting the felony
 Example: after commission of felony: burglar runs over person while making getaway.
 If actions were necessary to successfully complete crime FM, in furtherance
 If accident was well after getaway was complete  voluntary manslaughter
 After commission of felony – Robber commits a burglary and drives away. Later on the
highway he runs over someone. People v. Gills – Yes, FM
 Example: Unrelated to felony – A enters building intending to commit arson, sees old man,
decides to rob him and accidentally kills him
 Predicate felony of robbery is enough to justify felony murder
 But if A had a friend, B, who helped plan the arson, B could be guilty of FM if robbery
somehow furthers the arson (i.e. to get keys to a storage room)
 Example: By person resisting the felony – A is committing a felony and cops show up to stop
him. While shooting at A, the cops accidentally kill a bystander. Not FM
State v. Canola (NJ): Owner of jewelry store and employee try to resist robbery, shoot one of the cofelons
 Ct: it’s regressive to apply FM to lethal acts of a 3rd person not in furtherance of the felonious
scheme.
 Person cannot be held liable for homicide unless the act is either actually or constructively
committed by him, but there’s an exception if D forced deceased to occupy a place of danger
in order that D might carry out crime (i.e. human shield)
 Note: NJ changed its statute post-Canola to include causing the death of any person other than
one of the participants
Examples
 If D sets up a ruse where police shoot at each other  FM for using the police officers as
agents to do his work
 MPC §210.2(1)(b): felonies include escape (“flight after committing or attempting to commit”
Agency approach: “in furtherance of a felony” (Liability will only attach if a co-conspirator killed a thirdparty, does not apply if an adversary to crime commits the homicidal act.)
Proximate Cause approach: if anyone ends up being killed, and it’s proximately caused by the felony
situation, D is liable.
 Canola Dissent approach: proximate cause except if a co-felon is killed (if a non-felon kills a
felon, the death is justified and the death of a bystander is excusable
Death Penalty
Pg 552 - 565
 Constitutional Limitations
o Due Process (5th and 14th Amendment) and Cruel and Unusual Punishment (8th Amendment)
o Furman: death penalties was being applied too randomly  cruel and unusual punishment
o Gregg v. Georgia: death penalty doesn’t violate 8th/14th A (Death penalty hasn’t become cruel and
usual)
 No wanton infliction of pain
 No proportionality problem
o McClesky v. Kemp: Black ∆ killed white officer, received death penalty. Baldus statistical study pointed
out how much more likely black ∆ to get convicted/death penalty.
 Statistical study does not provide sufficient evidence for violation of 8th Amendment. Need the
elements of a discrimination case: (1) existence of discrimination in specific case (2) actual
discrimination, not effects (3) would jeopardize the whole system (4) study does not
demonstrate constitutionally significant risk (5) job of legislature to evaluate statistical studies
 Categorical Bans to DP
25
o
o
o
Atkins v. Virginia (mentally challenged): ∆ with IQ of 59 abducts/shoots/kills victim  DP for mentally
challenged is categorically disproportionate
 (1) states are moving in this direction (2) it doesn’t serve deterrence/culpability ends
Kennedy v. Louisiana: death penalty statute for rape of child under 12 overturned
Roger v. Simmons: Juveniles categorically prohibited as disproportionate: similar arguments as Atkins
but also that juvenile can outgrow impulsiveness
VII. Causation
 Causation must be proved beyond a reasonable doubt. Causation = way to expand/contract liability
 MPC §2.03 Causation:
o (1) Conduct is cause of result when (a) is but-for cause and (b) relationship between conduct and result
satisfies any additional causal requirements imposed by Code or statute.
o (2) If “purposefully or knowingly causing result” is an element of offense, element is established if the
result was within purpose or contemplation of actor OR ONLY IF (a) result differs from contemplated
only in that a different person or property is affected or injury/harm would have been more serious
than actually caused; OR IF (b) result involves same injury/harm contemplated and is not too remote or
accidental in occurrence
o (3) If “recklessly or negligently causing result” is element of offense, element established if result was
within the risk that actor is aware or (for neg) should have been aware OR ONLY IF: (a) result differs
from contemplated only in that a different person or property is affected or injury/harm would have
been more serious than actually caused; OR IF (b) result involves same injury/harm contemplated and
is not too remote or accidental in occurrence.
o (4) Causation element is not established unless result is a probable consequence of actor’s conduct
 Common Law: ∆ must be both the but-for (factual, sine qua non) and the proximate cause(close relationship
between act and resulting harm) of the harm
 Actual Cause = but-for cause
 Proximate Cause = legal cause
o What happened between the voluntary act and the social harm?
o Any intervening factor/cause?
Foreseeability
o

People v. Acosta (CA): high-speed car chase results in 2 helicopters colliding. 3 died (unprecedented).
 Remarkable, but not unforeseeable. Appreciable probability. Resulting harm was foreseeable,
so ∆ is proximate cause.
 However, insufficient evidence of malice, or conscious disregard for pilot’s lives, so second
degree murder conviction overturned
o People v. Brady: ∆ recklessly started a fire that led his secret meth lab to explode. Two firefighting
aircraft arrived and collided, killing the pilots
 Foreseeable given the location of the fire and the fact that aircraft would have to fly low 
proximate cause
Factual Cause (required under MPC 2.03(1)(a)) / Loss of Chance Doctrine
o State v. Montoya: private bodyguard shot and wounded Lowery, D, one of the shooter’s associates,
then drove Lowery to a secluded place and left him there to die
 Not convicted since couldn’t show BARD that victim would have survived. D wasn’t the factual
cause; the shooter was
o State v. Muro: Mother didn’t phone after husband beat daughter and child died.
 No factual cause since couldn’t show BARD that daughter would have survived
o Barrage v US, 2014: D supplied heroin to a man, who later died from overdose from drug cocktail. D
was convicted under federal statute imposing 20 year minimum for Ds who distribute a controlled
26

substance where death is result. SC overturned – heroin was contributing factor but doesn’t satisfy butfor causation.
Questioning Foreseeability Test: Focus less on degree of foreseeability and more on relationship between
conduct and risk: drug dealer sells to person, who goes to bathroom to get high, ceiling collapses, he dies. Butfor cause is kind of satisfied – but it would be strange to think of seller as culpable, and more so, holding seller
culpable will not reduce building accidents or lead other drug dealers to exercise more care.
Substantial Factor Doctrine for Prox Cause
o ∆’s conduct must have been a sufficiently direct cause of the death (higher liability than in tort)
o People v. Arzon (PA): Arson. Fireman who died when responding to fire; evidence links ∆ to first fire but
not to 2nd. ∆ claims insufficient causal link b/c it is not clear his fire was the but for cause of death
 Multiple cause problem. ∆ is criminally liable if his conduct was a sufficiently direct cause of
the death, does not need to be the sole factor in death.
o People v. Kibbe: Ds who robbed V and left him naked in subzero temps are guilty even though V was
eventually run over by a truck. Ds’ actions were sufficiently a direct cause, and it was foreseeable that V
might die that way. (i.e. death by plane making emergency landing ≠ foreseeable)
o People v. Stewart: surgeon performs operation on stabbing victim, then performs unrelated hernia
operation which kills V. Stabber is not guilty, since hernia operation was direct cause
o People v. Warner Lambert Co (NY): factory explosion. Company indicted for death of employees
because it had been warned about the chemicals.
 No evidence of an actual triggering event, so no causation under sufficiently direct standard.
Causation contracts liability here.
 No liability: Standard for prox cause is higher than tort liability – needs to be specific causal
mechanism for manufacturing industry
o Medical Malpractice
 Regina v. Cheshire: if wound is operating cause, death can be result of the wound. BUT if the
would is only the setting for another operation (i.e. hernia operation in Stewart), defendant
escapes liability
 Negligence/malpractice in treating V’s wounds  D is still liable
 Gross negligence in treating V  D escapes liability if malpractice is sole cause
 State v. Shabbaz: ∆ stabbed victim. Victim had surgery, was then placed in a hospital room. He
died the next morning from heavy bleeding from the surgery  D is liable; testimony about
hospital negligence excluded
 Gross negligence on behalf of medical treatment may permit ∆ to skirt liability only
when negligence was the sole cause of death
 US v. Main (9th Cir): ∆ flees police, crashes car, police notice that passenger is still alive in car
but don’t want to move him in case of neck injuries. When backup arrives, passenger is dead 
Jury should consider subsequent actions
o Vulnerable Victim Rule: eggshell victim, Stamp
o Omissions as Causes: if there’s a legal duty, then omissions can be legal causes
o Transferred Intent: MPC §2.03(2)(a) and (3)(a): when a crime requires causing result, the element is
satisfied if ∆ accidentally inflicts that injury on one person while intending to injure another.
Subsequent Human Actions Intended to Produce Results
o Death has to be the direct and natural result of the defendant’s act (final overt act)
 Even if the result is foreseeable and D had a big influence, a voluntary human choice that
separates ∆ from the action provides ∆ with a defense
o A physical event that is caused by a person’s action  the person is responsible
o A human event that follows from a person’s action  the person is not liable; the second act was
caused by the second person alone
 Exceptions: involuntary acts by person B, lack of information by person B (i.e. A asks B to make
a phone call and the phone call triggers an explosion), B’s actions constrained by A under duty,
duress (i.e. firefighter entering burning building in Arzon)
27
 MPC §2.06(2)(a
People v. Campbell (MI): ∆ gives drinking buddy gun in hopes that he’ll kill himself for sleeping with ∆s
wife; he does.
 Not murder. Decedent’s volitional act was itself the cause of death, even if helped by preceding
action of ∆; Hope for a result is not a sufficiently culpable mental state
o Kevorkian (MI): Assisted 2 women in suicide. ∆ would hook up decedents to machine that allowed them
to kill themselves (they did final tasks).
 Murder only if ∆ participated in final overt act that causes act. V is independent actor. Not
guilty where ∆ is involved merely in the events leading up to the commission of the final overt
act
MPC §210.5 Causing or Aiding Suicide:
o (1) As Criminal Suicide: May be convicted only if D purposely causes such suicide by force,
duress or deception.
o (2) Aiding or Soliciting Suicide as Independent Offense: Person who purposely aids or solicits
another to commit suicide is guilty of felony in 2nd degree if conduct causes such or an
attempted suicide and otherwise of misdemeanor
o
o
o
o
o
o
Washington v. Glucksberg (US): no constitutional right to obtain assistance to commit suicide
Stephenson v. State (PA): ∆ (KKK) kidnapped and sexually assaulted V. While being held, she bought
mercury tablets and tried to poison herself; ultimately dies.
 Even though V’s acts look voluntary/intervening; Ct expands time horizon, says she was subject
to the will of ∆ and that keeps causal chain intact even though ∆ didn’t want her to die.
 He had complete control over her, and her suicide was a natural and probable result
Rex v. Valade: teen jumped out of window following rape  ∆ is guilty of murder
State v. Preslar: wife lay down in the cold, refused to come inside, died, no one is guilty
Massachusetts teen suicide: Teen girl put constant pressure on boyfriend to commit suicide – court
upheld indictment for voluntary manslaughter – she overwhelmed his willpower.
Subsequent Actions that Recklessly Risk the Result
o Voluntary Intervening Doctrine = first actor in a sequence of events is usually not responsible for
subsequent human action if that subsequent action is VOLUNTARY
o Bailey v. Commonwealth: ∆ taunts V and summons police to V’s house, knowing that V is blind, easily
excitable, and carries a gun. Police shoot and kill V when he pulls his gun
 Causal chain was not broken – D used police as his agents, involuntary manslaughter
o People v. Kern (NY): White teenagers force black man on to highway, where he is hit by a truck and
killed. Convicted of manslaughter.
 Causal chain ruled not broken. Decedent was acting of his own volition, but his actions were
best considered involuntary. Predicament created by first actor
o People v. Matos (PA): Criminal ran on roof and police officer fell into shaft. Conviction of FM upheld. 
Foreseeable
o Commonwealth v. Root (PA): Drag racing, victim went into wrong lane and hit truck, dies
 Not manslaughter by co-actor in race. Unlawful/reckless conduct but not direct cause of death.
Act “done by deceased and him alone”. Causal chain broken by an intervening act of the
decedent. (Higher burden of recklessness in crim)
o State v. McFadden (IA): Drag racing, one driver hits another car, kills all (accomplice liability used for
innocent passenger)
 Conviction upheld. Rejects stringent standard of Root for foreseeability requirement. Found
that both drivers were the joint “causes” of the decedent drag racer losing control of his
vehicle.
 So as long as the harmful result was (1) a foreseeable result of ∆’s actions, and (2) ∆’s actions
were reckless, then liability could be assigned.
 CIVIL STANDARD USED HERE FOR FUNCTIONAL REASONS: This case may simply turn on
the nature of the harm that resulted (killing a child)
28
o

Commonwealth v. Atencio (MA): Russian roulette game with ∆s and V kills self; friends found guilty of
murder. Ct finds “mutual encouragement in joint enterprise.”
 ∆s had a duty not to cooperate or join the game. ∆s considered the “cause” of his death, similar
to in McFadden.
 Time-slicing: it could be 3 separate acts (each person shooting). CT re-interprets facts to see
events as one unified game
 Difference between drag racing and Russian Roulette
 RR: it’s all about luck. Someone will die with certainty if played enough
Concurrence of Elements
o Mens rea and actus reus must align un order for D to be guilty
 Temporal concurrence: D must possess the requisite mens rea at the time of voluntary conduct
(or omission)
 Motivational concurrence: even if the mens rea and actus reus temporally concur, relationship
between the two must be more than coincidental
 Temporally divisible acts or omissions: divisible acts and only one causes the harm, or when
omission follows an innocent act (i.e. hitting V and dragging his body)
VIII. Attempts
 Attempt: when a person, with the intent to commit an offense, performs any act that constitutes a substantial
step (beyond preparation to the point of perpetration) towards the commission of the offense. All about
mental states
 Justification:
o (1) Retributive - even though no harm occurs, punishing attempts expresses moral condemnation;
attempt endangers the community; disturbs public repose; causes social harm
o (2) Utilitarian – w/o punishment incentive to keep trying; attempting a crime is dangerous so
incapacitation/rehabilitation justifiable; allows preventive law enforcement
MPC §5.05 Grading of Criminal Attempt, Conspiracy:
 (1) Grading. Except as otherwise noted, attempt, solicitation and conspiracy are crimes of the same
grade and degree as most serious offense which is attempted, solicited or conspired. An attempt,
solicitation or conspiracy to commit a crime of the first degree is a felony of the second degree.
 (2) Mitigation. If particular conduct is so inherently unlikely to result in commission of crime, the court
shall exercise power under §6.12 (discretion to court) and impose sentence for a crime of lower grade
or degree or, in extreme cases, dismiss the prosecution.
 (3) Multiple Convictions. Cannot be convicted of more than one offense in the commission of same
crime.





MPC Approach: attempts are punished the same way as are the substantive crimes (except first-degree
felonies, which move down a grade)
o Rationale: (1) punishment is based on blameworthiness, not based on luck in whether the act is carried
out or not (util/retrib); (2) reduced punishment for 1st degree felonies serves as incentive to ∆ to desist
before completing attempt (util.)
Majority Approach: punishes attempts less than the completed crime
o Rationale: incentivizes ∆ to abandon/desist crime; completed crimes are worse for society than
attempted crimes so they deserve more condemnation (retrib)
Minority Approach: follows MPC, punishment the same for attempts as it is for the completed offense except in
cases where punishment would be death or life imprisonment
CA, 2016: Attempt carries punishment max of ½ max term authorized for completed offense
NY, 2016: Attempt is generally one class lower than completed crime (except for some crimes - drugs)
29
Mens Rea of Attempt
o MPC contains 2 elements: purpose to commit the target offense + substantial step
MPC §5.01 Criminal Attempt:
 (1) Definition: guilty of attempt if acting with culpability otherwise required of crime actor
o (a) purposely engages in conduct which would be crime if attended circumstances were as
actor believes them; or
o (b) when causing particular result is element of crime, does or omits anything with purpose
of causing (or with belief that it will cause) such result without further conduct on his part;
or
o (c) purposely does or omits something which constitutes a substantial step in course of
conduct planned in commission of crime
 (2) Conduct which may be substantial step (1)(c): the following, if strongly corroborative of actor’s
criminal purpose shall not be held insufficient as a matter of law
o (a) lying in wait, searching for or following contemplated victim;
o (b) enticing or seeking to entice victim to go to place for crime;
o (c) casing the place contemplated for commission of crime;
o (d) unlawful entry for commission of crime;
o (e) possession of materials to be employed in crime which serve no lawful purpose for actor
under the circumstances;
o (g) soliciting an innocent agent to engage in conduct constituting element of crime
 (3) Conduct designed to aid another, which would establish complicity under §2.06, is guilty of an
attempt although the crime is not committed or attempted by such other person
 (4) Complete and voluntary renunciation of his criminal purpose is an affirmative defense if could be
conduct would otherwise constitute an attempt under (1)(b) or (c).
o *Not voluntary if motivated in whole or in part by circumstances not present at inception of
actor’s course of conduct, which increase probability of detection or make criminal purpose
more difficult. Not complete if motivated by decision to postpone conduct or to transfer
criminal effort to another but similar objective or victim
 INTENT REQUIREMENT: An attempt is a specific-intent offense, even if the target offense is a general-intent
crime. Mens rea of purpose is required to find liability for attempt even if only recklessness would be required
to commit for the completed offense.
o Since attempt gets rid of the element of result, it raises the mental state requirement: i.e. attempted
murder requires specific intent to kill; murder merely requires engaging in conduct knowing of a high
probability that in doing so, death might follow
o MPC example (Thacker v. Commonwealth): ∆ shot at light shining through woman’s tent. Could have
been convicted of murder except bullet did not kill her. Lacking intent to kill, no attempted murder
 MPC approach: ∆ not guilty of attempt unless it was actor’s purpose (conscious objective) to
engage in the conduct or cause the result that would constitute the substantive offense OR if
he believes result will occur. Same mens rea as to attendant circumstances.
o Mens Rea for attendant circumstances in attempt – Not necessary that you have specific intent, takes
the intent needed in the substantive crime.
 (Think rape, where you may only need to intend the act of intercourse, and just have
knowledge or be reckless w/r/t to the attendant circumstance of lack of consent).
o Smallwood v. State (MD): Rapist transmits AIDS to Vs; charged w/attempted murder. Not guilty of
attempted murder.
 No proper mens rea – need to show purpose or the specific intent through circumstantial
evidence – that (1) D knew “weapon” was deadly and (2) D knows death is probable result.
Loaded penis ≠ loaded gun.
 Purpose: (2) is not satisfied
 Specific Intent: His circumstantial evidence just demonstrates intent to rape and
commit armed robbery, not to murder
30


Contrast w/Hinkhouse, where ∆ concealed HIV, refused to wear condoms, etc. Court found
intent to commit murder, convicted
 Commonwealth v Dunne: D convicted of attempted statutory rape, did not know victim was
underage – MPC said D needed intent to have intercourse, but with respect to age, sufficient if
he acted w/ same kind of culpability required for full crime – AKA none (SL)
Preparation vs. Attempt
o Actus Reus of attempt: Preparation (incomplete) vs. Attempt (complete)
 Three main concerns re: where to draw the line: 1) Want to be sure of D’s intentions (push line
later); 2) Want D to be able to abandon attempt (push line later); 3) Want to ensure police can
intervene in time (push line earlier)
 One approach: if ∆ is stopped because of repentance or malfunction, innocent
 Another approach: taking a single step (administering a non-lethal first dose of poison),
guilty
o POLICY (attempts):
 Locus penitentiae (opportunity to withdraw): We want to be sure D is really going to commit
the crime (give D the benefit of the doubt) and give him an opportunity to change his mind
 We want to give ∆ an advantage to stop before actually engaging in the crime 
opportunity to repent
 Abandonment/Renunciation Test: if you cross the line and are guilty of attempt, you can undo
it by completely and voluntarily renouncing your criminal purpose (MPC §5.01(4): a person is
not guilty of attempt if she abandons her effort to commit the crime or prevents it from being
committed; and her conduct manifests complete and voluntary renunciation of criminal
purpose.
 Johnson: robber enters gas station, waves a gun, demands money, upon seeing that it’s
only $50 says, “I was kidding, forget it.”  NO renunciation
 McNeal: ∆ forced girl waiting at bus stop to accompany him to a house at knifepoint
with intent to rape her. After girl pleaded with him to let her go, ∆ released her and
said he was sorry.
o NO renunciation. Victim’s “unexpected resistance” caused the renunciation; ∆
did not renounce voluntarily
 Dangerous Proximity Test (traditional CL): Did the acts of ∆ come near enough to the
commission of the offense that there was a substantial likelihood that it would occur but not
for some intervening act (“how many steps are left”)
 People v. Rizzo (NY): robbers hadn’t yet reached intended target when arrested, so not
guilty of attempted robbery
o ∆ clearly intended to rob, but he didn’t cross the line (Dangerous Proximity
Test)
o Acts which are so near to its accomplishment that in all reasonable
probability the crime itself would have been committed but for timely
interference  they didn’t have the proximate acts
 Commonwealth v Bell, 2009, MA: Attempted rape charge overturned because victim
was fake (sting) – D could never have been dangerously proximate
 Substantial Step Test (MPC §5.01, majority): Broadens scope of liability; ∆ must have taken a
substantial step (act or omission) that strongly corroborates criminal intent to constitute
attempt. Reconciles concerns by drawing early line, but allowing abandonment defense (“how
many steps have you taken”)
 US v. Jackson: foiled bank robbers had paraphernalia, scoped out place. Took
substantial steps that corroborate criminal purpose. It’s about what you’ve done, not
what you have left to do.
 US v. Harper: set up “bill trap” leaving $ in ATMs so technician will come, presumably
to rob.
o Bill trap is not enough; need more of a substantial step.
31

o
o
US v. Joyce: D flies to STL to make a drug deal but undercover cop won’t show him the
cocaine so he walks away.
o No substantial test since D walked away. No intent to distribute
 Equivocality Test (minority): For ∆ to be guilty of attempt, ∆’s acts must objectively,
unequivocally manifest of crim intent (w/out reliance on mens rea); need to establish as best as
possible what was in ∆’s mind. This test is concerned with evidentiary concerns w/r/t to
whether conduct bespeaks criminal intent
 McQuirter v. State (AL): black man allegedly following white woman; police say he was
going to rape her. Guilty: his act of following her demonstrates his intent
Policy (attempts): where do you draw the line? Intent ------- Harm
 If the line is closer to intent: more room for people to repent
 If the line is closet to harm: higher chance that a crime will actually happen

Level of Punishment:
Common law
MPC
(Dangerous proximity test)
(Substantial step test)
Completed offense
High
High
Attempt
Abandonment
Low
Low
High
n/a
o
o
DOCTRINAL DIFFERENCES:
 When crim. liability attaches:
 DPT requires act very close to the last act (courts tend to treat as physical proximity);
 SST pushes liability much closer to beginning of criminal acts
 When crim. liability turns off:
 Under DPT, once ∆ crosses becomes “dangerously proximate” liability cannot be lifted
(though abandonment may figure into sentencing);
 Under SST, abandonment is a defense
Note on stalking: before late 90s few states specified stalking as its own crime, now almost all do –
somewhat solves problem of determining whether behavior can count as attempt, and helps prevent
more serious offenses like kidnapping and rape.
SOLICITATION
MPC §5.02 Criminal Solicitation
 (1) Definition: guilty of solicitation to commit crime if with purpose of promoting its commission
requests, commands, or encourages another to engage in conduct constituting would constitute
such crime
 (2) Uncommunicated Solicitation: immaterial that actor fails to communicate if conduct effects such
communication
 (3) Renunciation as Defense: Affirmative defense if completely and voluntarily renounces of criminal
purpose.


Solicitation is complete as soon as the invitation, request, encouragement, or command is made. Solicitation is
also a basis for finding accomplice liability.
o CL: solicitation = misdemeanor
o MPC: purpose = promote, facilitate commission of substantive offense + commands, encourages,
requests another person to engage in the conduct that would constitute the crime
 Not guilty if D completely renounced criminal intent and persuades solicited party not to
commit the offense either
Modern Approach: Many jurisdictions adopted general solicitation statutes. Punishment for solicitation is
usually lesser than that of the underlying crime. (1) Solicitation can constitute attempt if represents
32
“substantial step” under circs (Church); OR (2) No matter what acts solicitor commits, cannot be guilty of
attempt because no intent to commit offense personally
o State v. Davis (MO): ∆ charged w/attempted murder for trying to hire contract killer (undercover cop).
 Mere solicitation is not sufficient substantial step. Employment of agent not tantamount to
attempt b/c agent (1) had no intent to carry out ∆’s purpose AND (2) committed no substantial
steps toward crime
o US v. Church (military): Man hires hit man to kill his wife; hit man stages killing and reports back to ∆.
 In this case, Church’s conduct was found sufficient to constitute an attempt, since had a
videotape, paid entirely, identified body (solicitation + preparation = substantial step)
Defense to Attempt: IMPOSSIBILITY
o Factual impossibility: ∆’s intended end constitutes a crime, but fails to consummate the offense
because of attendant circumstances unknown to ∆ or beyond ∆’s control (i.e., thief puts hand into V’s
empty pocket - generally, not recognized defense merely because ∆ chooses wrong V)
 Factual impossibility is not a defense
 Can be a defense only in extreme cases where too out there (voodoo dolls).
 MPC §5.05(2) If particular conduct is so inherently unlikely to result in crime, the court shall use
discretion and impose lower sentence or dismiss
o Legal impossibility: (1) ∆ believes he is committing a crime, but isn’t; (2) ∆’s conduct is prohibited, but
can’t legally constitute offense charged (thinking you are committing rape by touching someone’s
breast w/o consent)
o Hybrid impossibility: ∆’s goal is illegal, but commission of offense is impossible due to factual mistake
regarding legal status of attendant circumstance that is an element of the offense
o MPC Approach: eliminate defense of impossibility in virtually all situations; all that matters is what is in
actor’s mind
o CL Approach: Legal impossibility works; factual impossibility doesn’t. Intent is determined by actual
facts, even if unknown to D.
o NOTE: Applied inconsistently; cts just looking at underlying morality of ∆; attaching label to a conclusion
it has already reached
o People v. Jaffe: Man tries to buy cloth that he believes is stolen but is actually not stolen. Found not
guilty.
 End in question is illegal but, due to some mistake about the legal status of something
(property status of the cloth), it is actually impossible to commit the crime. Still survives under
the common law in some jurisdictions.
o People v. Dlugash: After other actor shot V, ∆ shoots [potentially] dead V 5x in face. Attempted
murder?
 Guilty, legal impossibility is defense but factual impossibility is not. The question of whether V
is dead or not is factual. *majority view
o U.S. v. Berrigan – Priest sending letters from jail w/o warden’s permission when it is illegal to do so w/o
warden’s knowledge. Warden actually knew.
 Ct rules that this was a legal impossibility. Example of stretching the doctrine to provide a
defense to someone who is not morally culpable
o US v. Oviedo: Undercover cop bought “heroin” from ∆. Tested later and not heroin.
 Found not guilty since legal impossibility – cannot convict for attempt to sell controlled
substance when not controlled substance.
o POLICY (attempts): criticism…
 Mr. Fact and Mr. Law hunt on Oct. 15 (season opens Oct. 1). Mr. Fact thinks broke law bc thinks
it’s Sep. 15; Mr. Law thinks broke law because believes season opens Nov. 1. Under CL, Mr. Fact
could be convicted of attempt to hunt out of season, but Mr. Law couldn’t (pure LI)
 Impedes use of undercover officers
 If ∆ shoots corpse believing alive, ∆ would claim LI (shooting corpse can’t be murder);
prosecutors would claim FI (if facts were as ∆ believed, would be guilty of murder). Something
amiss when semantics, not policy, determines recognition of defense
33

Lady Eldon’s French Lace, pg 684
IX. Group Criminality
Complicity
 Imposes liability on actor who is also to blame for conduct of another. A derivative liability (the secondary actor
takes some culpable action); not a separate crime.
 The aim of doctrine is to get around the intervening human problem in causation. “Accessory after the fact”
typically gets reduced punishment in these cases
MPC §2.06 Liability for Conduct of Another, Complicity:
 (1) Guilty of offense if committed by own conduct or by conduct of another for which he is legally
accountable, or both.
 (2) Legally accountable for another when: (a) acting with culpability sufficient for offense, causes innocent
or irresponsible person to engage; (b) made accountable for the conduct of another by statute; (c) is an
accomplice
 (3) A person is an accomplice if: (a) with purpose of promoting or facilitating offense, he (i) solicits other to
commit; (ii) aids or agrees or attempts to aid such other person in commission; (iii) having legal duty to
prevent commission, fails to make effort; (b) conduct expressly declared by statute to establish complicity.
 (4) When causing particular result is element, an accomplice in the conduct causing such result is an
accomplice in the commission of that offense, if he acts with culpability, if any, with respect to result that is
sufficient for commission of offense.
 (5) Person legally incapable of committing particular offence may still be guilty if committed by another he is
legally accountable for UNLESS: such liability is inconsistent with purpose of provision establishing incapacity.
 (6) A person is not accomplice in offense by another if: (a) is a victim of that offense; (b) offense is defined so
that his conduct is inevitably incident to commission; (c) terminates complicity prior to commission and (i)
wholly depriving it of effectiveness (ii) gives timely warning to law enforcement.
 (7) An accomplice may be convicted, though the person claimed to have committed the offense has not been
prosecuted, convicted, has been convicted of different offense/degree, or has immunity
Accomplice Liability
 Accomplice = when a principal commits an offense and the person was intentionally assisting (aiding/abetting,
encouraging, soliciting, advising, procuring) to engage in conduct to enable to that offense
o In conspiracy, a person may be held accountable for the natural and probable consequences of the
conspiratorial act (extensive liability); under accomplice law, however, a person is only responsible for
the natural and probable causes of the particular crimes in which the person has intentionally
assisted.
 Principal in 1st degree = perpetrator of crime or aider/abettor of the harm
 Principal in 2nd degree = intentionally assists in the commission of the crime by presence or constructive
assistance
 Accessory: not the chief actor, not present at the time, but involved BEFORE (through counsel or command) OR
AFTER (relieves and assists felons)
o Punishment is the same for all three, except for help after-the-fact. Principal doesn’t have to be
convicted in order for accomplices to be convicted.
 Sometimes accomplices and principals have different degree of culpability, so 2016 sentencing guidelines give
judges discretion in reducing punishments
 Mens Rea for Conduct: accomplice must have purposeful (specific) intent (MPC and CL)
o Hicks v. US: Indians meeting on horseback (“die like a man”). ∆ charged as an accomplice, though his
actions were equivocal.
 Mere presence w/out prior conspiracy or other evidence manifesting purposeful
aid/encouragement, not enough. No circumstantial evidence of act OR of intent
34
o
State v. Gladstone (WA): ∆ suggested of where to buy weed, charged with aiding/abetting sale of
marijuana.
 Lack of “nexus” between ∆ and seller. Knowledge that it will lead to sale not enough. Need
proof that ∆ did something in association or connection with principal to accomplish crime
 Attempting to aid/abet?
 MPC §5.01(3): even if marijuana is never sold and the informant never shows up at
Kent’s house, Gladstone can be guilty for attempted sale of marijuana
 MPC 2.06(3)(a)(iii): a person who aids or attempts to aid the commission of a crime is
still an accomplice
 NY PENAL CODE’s “criminal facilitation”:
o Guilty of criminal facilitation in 2nd degree when, believing it probable that he is
rendering aid to a person who intends to commit a crime, he engages in
conduct which provides such person with means or opportunity for the
commission thereof and which in fact aids such person to commit a felony
o US v. Fountain (PA): Two inmates, ∆ presented knife while in cell to principal who used it to kill guard.
Posner found knowledge to be enough to convict major crimes
 Aiding and abetting murder is established by proof beyond a reasonable doubt that the
supplier of the murder weapon knew the purpose for which it would be used
Lowering Mens Rea Requirement
o Some jurisdictions use seriousness of offense considered in determining MR. While purpose is required
to convict aiding lesser crimes, knowledge suffices for aiding major crimes
 Money laundering – requires knowledge that proceeds came from illegal activity (includes
“willful blindness”)
 Recklessness was sufficient in statute that convicted gun seller in Columbine case
Natural and Probable Consequences Doctrine: Rejected by the MPC.
o Looser requirement: liable for crime that “might naturally ensue” from another crime for which ∆ was
an accomplice. So if ∆ encouraged another to commit crime A, and ∆ is found to be an accomplice, ∆
can also be found guilty for Crime B that other commits that ensued from Crime A [allows us to
expand/contract liability]
o People v. Luparello (CA): ∆ sends friends to get info from a guy. They end up killing him with a sword,
clearly inconsistent w/ getting information.
 ∆ is found guilty of 1st degree murder even though he had no intention w/ regards to the crime.
Liability extends to actual crime committed, rather than to planned crime. Murder found to be
a “natural, probable and foreseeable” consequence of his action
o Roy v. US (DC): ∆ helps V buy handgun from a third party. During the sale, third party robs V at
gunpoint.
 Not guilty of armed robbery under accomplice rule, CT rejects the “foreseeability” version of
the natural and probable consequences doctrine and adopts the “ordinary course of events”
standard  judicial activism
o Rosemond v US: D and friends were participating in weed deal, D’s friends fired gun, D charged with
using gun in connection with firearm/aiding and abetting that offense. Convicted and affirmed on
appeal, but vacated by SC
 Person liable under relevant statute only if 1) he takes affirmative act in furtherance 2) with
intent of furtherance.
 D must have advance knowledge of friend’s plan to carry gun, in advance for him to act upon it,
either by staying silent and approving, or actively disapproving (abandonment)




Pinkerton Doctrine: ∆ can be convicted of crimes co-conspirators commit if additional offenses further the
conspiratorial objective AND are reasonable foreseeable consequences
Mens Rea for Results
35
o



Same MR as needed for underlying crime (contrast w/attempt for results: purpose or belief required).
MPC §2.06(4)
o State v. McVay (RI): Criminally negligent manslaughter due to explosion of boiler on steamship. If the
principal crime is one of negligence, how can ∆ commit before the fact to participate in something that
is inherently unpremeditated?
 ∆ had extreme recklessness towards the result (death), which is sufficient for manslaughter
(consistent w/MPC approach).
o Commwealth v. Roebuck : ∆ helps lure individual to building, where he is killed by a crowd of people.
 ∆ is reckless as to the result, and that is all that is required to attach liability
o People v. Russell (NY): Shootout in Red Hook kills V. Unclear which ∆ actually fired fatal shot. All 3
convicted of 2nd degree murder – requires “depraved indifference to human life.”
 ∆s can “intend” behavior of others if they act together to create a “zone of danger” that kills
someone
o People v. Abbott: Drag race, hits other vehicle, kills two, drag racer survives. ∆ was opponent.
 Found guilty since intentionally participated in inherently dangerous and unlawful activity and
therefore shared culpability
Mens Rea for Attended Circumstances
o MPC is silent on MR for Attended Circumstances.
o Consider: ∆ purposely helps P commit act, but is unaware act constitutes a crime. Do we have to
conclude that the act that ∆ intended to aid was the act minus AC?
 Ex. Supplying gun to a felon: P has SL re status as a felon; liability improper for ∆ (absent proof
∆ knew or should have known of AC)
o What about if B encourages A to have sex w/V, who (unbeknownst to both) is underage? SL for A re:
age. Fair to also hold B liable?  intuition splits, one ct looked at whether B saw V
Actus Reus
o ∆ must render appreciable aid to principal; as long as action had some causal effect, suffices for AR
element. Needs to be more than just desiring result. Doesn’t require but-for causation
o An accessory cannot be convicted of a crime unless and until the principal is convicted
o Wilcox v. Jeffrey (Eng.): ∆ applauds at P’s saxophone concert, who is not allowed to play in country. ∆
found guilty on complicity theory.
 Ct finds that going to concert for the purpose of publishing an article, and then clapping, was
sufficient encouragement. Mere presence is not enough to find encouragement, but made use
of performance for readership
o State v. Talley, Judge: Judge keeps operator from sending warning telegram to V, who is killed by
Judge’s friends.
 Materiality of the aid put the deceased at a disadvantage. Judge’s action isn’t sufficient to
show causation (might be, but doesn’t have to be, a but-for cause). Destroying a “single
chance” is found to be enough.
Accessory Liability and Attempt
o MPC approach: §2.06(3) – ∆ who (unsuccessfully) attempts to aid in a crime is guilty via complicity
when underlying crime is committed
 §5.01(3) – Person who attempts to aid which establish complicity under §2.06, is guilty of an
attempt to commit the crime even if the crime is not committed or attempted by other person
o Common law approach: ∆ who unsuccessfully attempts to aid in crime not guilty. “Attempt to counsel
does nothing. Encouragement that doesn’t reach P’s ears is not aiding/abetting.”
o State v. Hayes (MO): ∆ enlisted Hill to rob store, Hill related to owners and set out to trap ∆.
 ∆ didn’t actually commit underlying crime (burglary, which is forcible entry with intent to
steal), so there’s no liability for Hill to derive. Hill may have been guilty of a petty
misdemeanor for taking bacon, but no forcible entry
o Valden v. State (AK): An undercover agent illegally shoots 4 foxes; ∆ (local guide who flew plane)
charged w/poaching.
36





Agent actually committed underlying crime, but had affirmative defense of “public authority
justification defense”. Defense was personal to agent, and that ∆ can still be guilty on
complicity theory
 Dissent: criticizes that acts of a feigned agent can be imputed to ∆. What if he had shot more
foxes would just rack up liability for ∆? This is sentencing entrapment. Potential abuse of gov
pwr
Innocent agent doctrine: If ∆ brings about results w/required MR, and sees to it that Actus Reus is satisfied
(using innocent agent, by duress/deception, etc.), ∆ is liable as a principal. Doesn’t matter that ∆ doesn’t
commit Actus Reus himself (unless statute specifically states that ∆ must commit act by own hand). CL and MPC
§2.06(2)(a) in accord: “no less guilty because uses the overt conduct of an innocent or irresponsible agent.”
Acquitted principal: Even if principal is found innocent at trial, ∆ can still be convicted if jury in ∆’s trial find that
principal was guilty of the crime. Some asymmetry in results unfortunate, but allowed. MPC §2.06(7).
Differences in degree of culpability: Traditional theory: even if ∆’s MR more culpable than principal’s, ∆ not
guilty of greater crime if conduct, when it occurs, performed by principal volitionally
o Wilson v. People (PA):
o Regina v. Richards (PA): Wife hires 2 men to badly beat husband; they assault him w/out inflicting grave
bodily harm. Ct says ∆ cannot be convicted of graver offense than what principal’s committed
o People v. McCoy (PA): Drive-by shooting, McCoy’s bullet hit and friend brought in on aiding/abetting.
McCoy’s conviction dropped to voluntary manslaughter. Friend left at murder. Ct says person’s guilt
determined by acts and individual’s own mens rea
MPC §2.06(6)(a), (b): X is not an accomplice in an offense committed by other when X is victim
Conspiracy
 Conspiracy = agreeing with another to commit a crime. (Wheel vs. hub)
o Doesn’t merge into completed offence; punishable on its own right. (A separate crime.)
o Expands liability where more than one actor present, but not enough acts committed to meet
requirements for attempt
o Generally, the sentence bears no relationship to the actual crime that was planned
 Federal: if object crime is a misdemeanor, conspiracy can only be misdemeanor
 California: punishment for conspiracy, esp for crimes against govn’t officials, can exceed
punishment for object crime
 MPC §5.05(1): punishment for conspiracy is the same as the punishment authorized for the
object crime, except in cases of most serious felonies
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MPC §5.03 Criminal Conspiracy = AR (agreement) + MR (purpose)
 (1) Guilty of conspiracy if with purpose of promoting of facilitating commission he: (a) agrees with
another that they will engage in conduct that constitutes a crime or attempt/solicitation; or (b)
agrees to aid another in planning or commission or attempt/solicitation.
 (2) Scope of Relationship: If person guilty of conspiracy knows that a person with whom he conspires
has conspired with another, he is guilty of conspiring with such other persons, whether or not knows
identity.
 (3) Conspiracy with Multiple Criminal Objectives: If person conspires to commit number of crimes,
guilty of only one conspiracy so long as crimes are object of same agreement.
 (4) Joinder and Venue: Procedure section
 (5) Overt Act: No person can be convicted of conspiracy, other than first or second degree felony,
unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him
or with whom he conspired.
 (6) Renunciation: Affirmative defense that actor thwarted success of conspiracy manifesting
complete and voluntary renunciation of criminal purpose.
 (7) Duration: (a) conspiracy is a continuing course of conduct which terminates when the objective
crime(s) are committed or agreement that they be committed is abandoned by ∆ and those he
conspired with; and (b) abandonment is presumed if neither ∆ nor anyone he conspired with does
any overt act in pursuance of conspiracy; and (c) if an individual abandons agreement, conspiracy is
terminated as to him only if/when he advises those with whom he conspired of his abandonment or
informs law enforcement authorities of existence of conspiracy and his participation therein
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Conspiracy Helps Prosecutor in 3 Ways
o Enhances punishment - penalty for conspiracy relatively modest, but can be combined w/penalty to
commit actual crimes. Some cts (including MPC and fed law) don’t always allow combination
o Increases liability
 Can be convicted for crimes through Pinkerton that wouldn’t be liable for under accomplice
liability w/ no reasonable consequences doctrine
 Where overt act requirement exists, requirement is not as robust as SST or DPT
o Reduces Procedural Safeguards
 (1) co-conspirator exception to hearsay rule (2) venue rules relaxed (can be anywhere any part
of conspiracy occurred) (3) guilty by association: “spillover badness”
Justification for Doctrine
o (1) group dynamic dangerous (2) Often requires very sophisticated operation (drug smuggling) not
possible w/out division of labor. Collectivism promotes efficiency. (3) more evidence of dangerousness
when group working together, licenses harsher response.
Criticisms of Conspiracy
o (1) Formless and vague so serves as powerful tool of prosecutors to suppress inchoate conduct (2)
Highly inchoate nature of the offense: ∆ can be convicted of CL offense of conspiracy before
committing any act in perpetration of substantive crime (3) Emphasis on MR and de-emphasis on
conduct, risk of punishment for what they say, not what they do.
Conspiracy as a stand-alone crime: an inchoate offense
o Unlike attempt/solicitation, under CL conspiracy does not merge into attempted/completed crime. ∆s
may be convicted for both conspiracy to commit offense and offense itself.
MPC, see §5.05(3): ∆ may not be convicted for both conspiracy and object of conspiracy §1.07(1)(b) - ∆ may be
prosecuted for multiple offenses; he may not, however, be convicted of more than one offense, if: (b) one
offense consists only of a conspiracy or other form of preparation to commit the other
Actus Reus – The Agreement
o Agreement can be inferred from parallel action (varies based on facts of case; things to consider:
relationship btwn parties, benefits each gains by conspiracy, etc.). Conspiracy may exist if there is no
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communication and no express agreement, provided there is a tacit agreement reached without
communication. Allows early police intervention.
o Perry v State, 2014, FL: Parents convicted of conspiracy for sexual battery for their daughter,
prosecution claimed they agreed to let roommate molest her and cover it up. Appeals court found that
there was insufficient proof of an agreement – just because both parents knew did not mean they
conspired together. Did find them guilty of accomplice liability, which does not require that agreement
o Interstate Circuit v. US: Movie chains collude to manipulate prices.
 Guilty, reasonable inferences of agreement. No explicit agreement was necessary since a tacit
agreement is sufficient – concerted actions was being contemplated and invited; all of the ∆s
adhered, seemed actions were against their own interests
o US v. Garcia (CA): Gangs in LA.
 Being in a gang found insufficient standing by itself to support a conspiracy charge. A basic
agreement to back each other up is not equivalent to an agreement with a specific purpose.
Overt Act Requirement:
o Overt act typically not required to attach conspiracy liability in common law. The agreement itself is
typically enough (Ex: fomenting Irish rebellion). American statutes typically add that an overt act, no
matter how small, be committed. Once one member of the conspiracy takes any action in an overt act
jurisdiction, liability can attach to all conspirators.
 Rationale: ensures society doesn’t intervene prematurely
o Ohio and Maine requires more substantial over act (2016); most states don’t
Mens Rea:
o Follows rule of complicity: purpose needed for less serious crime; knowledge sometimes sufficient for
more serious crime. (Under MPC, true purpose required in all cases for conduct.) Result and AC take
mental state of substantive crime
o People v. Lauria: ∆ ran a call service charged w/ conspiracy to help prostitute-clients further their
business.
 Need element of knowledge for illegal use of goods/services and intent to further use (need
purpose). ∆ knew that prostitutes were using the call services to set up tricks, but he did not
intend to further their business
PURPOSE CAN BE INFERRED FROM KNOWLEDGE WHEN…
 1. Acquired a stake in the venture (i.e., if ∆ charged the prostitutes a higher rate for furnishing them
call services).
 2. No legitimate use for the goods or services exists.
 3. Volume of business with the buyer is grossly disproportionate to demand (Direct Sales, sales of
pharmaceuticals to small-town doctor), or when sales for illegal use amount to a high proportion of
the seller’s total business
 Rule: Can find intent for supplier by (1) direct evidence or (2) through inference based on (a)
special interest or (b) aggravated nature of the crime
o
o
o
Regina v. Bainbridge (from Lauria Case) ∆ sells oxygen-cutting equipment that he knows will be used to
rob bank.
 Guilty. Sometimes knowledge that crime will be committed is enough if it is a very serious
crime
US v. Morse: selling a plane well above market rate to drug smugglers
 Court finds that so much knowledge suggests purpose (JJ: there’s nothing special about the
quantity of evidence. What’s happening here is that the Ct. is rebutting ∆’s claim that he didn’t
know they were drug smugglers)
Powell Doctrine
 People v. Powell: “to be criminal, a conspiracy must be animated by a “corrupt” motive or an
intention to engage in conduct known to be wrongful” (If you didn’t think you were doing
anything wrong, agreeing to do something that you don’t think is illegal shouldn’t be a crime)
Rejected in most jdx
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§503 commentary: there is no mistake of law defense (doesn’t matter if conduct has
no negative consequences and ∆ doesn’t know it’s illegal)
 Mens Rea for attendant circumstances imposed by the offense
o US v. Freed: Substantive offense of possessing unregistered hand grenade imposes SL as far as the fact
of registration (the attendant circumstance)
 Substantive offenses can impose SL on aggravating factor (attendant circumstances)
 Conspiracy as form of accessorial liability: way of assigning liability for substantive crimes from one actor to
another conspirator
o Pinkerton (PA): ∆s, brother, convicted of IRS crime. Both convicted of substantive crimes and
conspiracy. Not enough evidence to convict one of them for substantive crimes (was in prison whole
time).
 Even though substantive crimes occurred while ∆ in jail, ∆ is responsible because there was a
continuous conspiracy. After his prior act of joining the conspiracy, ∆ must do something to
disavow or defeat purpose. Conspirator is vicariously liable of crimes by co-conspirator when
conspirator has same intent and purpose as co-conspirator that committed crimes
 (Dissent: conspiracy can’t go on forever)
o Pinkerton Rule: ∆ is liable if (1) P acts in furtherance of conspiracy’s objective; and (2) P’s acts are
reasonably foreseeable by ∆. Essentially a negligence standard. New conspirators are not liable for the
past substantive crimes of co-conspirators; liable for crimes that occur after they join the conspiracy,
even of individuals who joined the conspiracy before them
o US v. Alvarez: Drug sting at hotel, killed an agent and other dealers convicted of 2nd degree murder.
Liability for deaths of agents attach to conspirators who play no more than minor role in conspiracy
 Application of Pinkerton – (1) evidence of conspiracy to sell drugs = act (2) must have been
aware of weapons and that deadly force would have been used to protect drugs/interest
 Liable for the actions of co-conspirator even if you don’t know what they’re doing
o State v. Bridges: Heated argument at 16yo party, ∆ returns to party with 2 friends to “help” who
brought guns and killed onlooker.
 Co-conspirator may be liable for commission of substantive criminal acts not within scope of
conspiracy if reasonable foreseeable as necessary or natural consequence of conspiracy
 NY Statutes:
 Vicarious liability for substantive crimes committed by co-conspirators only when the
conspirator had the same intent and purpose as the co-conspirator
 Culpability: a person is legally accountable for the conduct of another person when he
is engaged in a conspiracy with such other person
o State v. Coltherst: When ∆ plays necessary part in setting in motion a discrete course of criminal
conduct, he cannot claim that it is unfair to hold him vicariously liable if he should have foreseen the
result
o People v. Brigham (PA): ∆ convicted when his co-conspirator shoots a random teenager to “show he was
serious”, even after ∆ had told him that the V wasn’t who they were looking to kill.
 Ct found ∆ liable because the result was foreseeable given the “hard-hearted” nature of the coconspirator  ∆ should have foreseen crazy co-∆’s actions
POLICY (conspiracy)
 Justifications for expanding liability via Pinkerton: 1) incentivize criminal groups to monitor and control
excessively harmful activity, (2) helps prosecutor go after the group by punishing more accessible members, (3)
it allows government to gain information from informants, (4) lets us punish group will
 Criticisms for expanding liability via Pinkerton: (1) Morally wrong to punish the group for actions of an
individual. (2) MPC allows imposition of accomplice liability on conspirators only when strict conditions for
accomplice liability are met (§2.06(3) purpose) because of the worry that excessive conspiracy punishment will
erode proportionality of the law
 Example:
o A hires B to rob bank 1 and C to rob bank 2 (don’t know each other), and D to steal car to act as B’s
getaway driver. Compare Pinkerton and accomplice liability
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 A liable for crimes of others? Pink  yes; Accomplice  yes
 B liable for C’s robbery? Pink  possibly yes; Accomplice  no
 D liable for C’s robbery? Pink  possibly yes; Accomplice  no
 D liable for B’s robbery? Pink  yes; Accomplice  yes (supplied car)
 B/C liable for D’s theft of car? Pink  yes, if reasonably foreseeable; Accomplice  no
Duration and Scope of a Conspiracy
o A conspiracy is in effect until its objectives have either been achieved or abandoned. So people can be
held liable for crimes committed in furtherance of a conspiracy even if they long ago disassociated from
the conspiracy. Most cts refuse to infer that an implicit agreement to cover up the crime is inherent in
every conspiracy
Impossibility: Doctrine that conspiracy liability can still attach to co-conspirators even if the ultimate object of
their conspiracy has become impossible. No automatic termination
Abandonment: A conspiracy is abandoned when none of the conspirators take any action to further the
conspiratorial actions. If the statute of limitations then runs, there can be no conspiracy charge. An individual
can abandon a conspiracy, such that it is no longer applicable to him, by DIRECTLY communicating to his coconspirators that he is out OR by disclosing the plan to law enforcement
Single or Multiple Conspiracies
o Kotteakos v. US: Brown was broker for at least 8 fraudulent loans. None of ∆s had knowledge of others,
just all dealt with Brown.
 Not a single conspiracy but multiple. Hub and Spoke conspiracy. No rim found to connect
several different groups of the conspiracy.
o Anderson v. Superior Court: ∆ referred women to abortion doctor; convicted of conspiring to perform
abortions.
 “Rim” found here, so ∆ is found guilty of crimes committed by others making referrals. Perhaps
based on the idea that all individuals making referrals think they’re “all in it together”.
o US v. Bruno: 88 people charged with large conspiracy to import narcotics. Smugglers sell drugs to
middlemen, who sell drugs to different groups of retailers in TX/LA region and NY.
 Affirms judgment that one conspiracy existed including appellants. Smugglers knew that the
middle people must sell to retailers, and the retailers knew that the middle people must buy
from importers. Case would come out much differently under MPC – could get conspiracy from
perspective of each ∆.
o US v. McDermott: ∆ passes stock tips to girlfriend. Girlfriend then passes stock tips to another lover w/o
boyfriend knowing.
 ∆ can only be charged for conspiracy to commit fraud w/ girlfriend. Scope of conspiracy needs
to be assessed from his perspective. Ct notes that McDermott may have been chargeable if it
had been “natural and foreseeable” that she would pass on tips, if the agreement was meant
to be wider or ∆ at least known of third party
Parties
o Gebardi v. US: Mann Act criminalizes person who does transporting of prostitute, not person being
transported.
 Both ∆ and woman being transported charged w/conspiracy to commit Mann Act; Ct says
failure of Act to condemn woman’s participation clear evidence of policy to leave participation
unpunished. Since woman cannot violate Mann Act, could not have conspired to either (MPC
§5.04(2)). One cannot be convicted of conspiracy when would be exempt from prosecution
for substantive crime
o Gebardi Rule: if crime does not require two or more people, conspiracy is impossible
o Wharton Rule: can’t conspire to commit a crime that can only occur with the consent of 2 people
(bigamy, incest, dueling, etc.). (rejected by MPC §5.04)
 *Only if predicate felony is defined in such a way that “it is impossible under any circumstances
to commit the substantive offense without cooperative action” does Wharton rule apply. Not
all jdxs employ it, so always consider what the result would be in a jurisdiction that doesn’t.
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MPC §5.04
 (1) Except as provided in Subsection (2) of this Section, it is immaterial to the liability of a
person who solicits or conspires with another to commit a crime that
 (a) he or the person whom he solicits or with whom he conspires does not occupy a
particular position or have a particular characteristic which is an element of such crime, if he
believes that one of them does; or
 (b) the person whom he solicits or with whom he conspires is irresponsible or has an
immunity to prosecution or conviction for the commission of the crime
 (2) It is a defense to a charge of solicitation or conspiracy to commit a crime that if the
criminal object were achieved, the actor would not be guilty of a crime under the law
defining the offense or as an accomplice under Section 2.06(5) or 2.06(6)(a) or (b).
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Bilateral vs. Unilateral Agreement
Unilateral Approach: Individual can be liable for conspiracy even if the person who he makes an agreement w/
is not truly agreeing (if he is a feigned co-conspirator for example). Embraced by the MPC §5.04(1)(a)
o Rationale: Culpable conduct, the criminal purpose, is still there. There is no reason not to convict him.
You can likely get him under attempt as well
Bilateral Approach: There needs to be an actual meeting of the minds before someone can be charged with
conspiracy. Remains in many CL jdxs
o Rationale: The traditional fear is conspiracies are difficult to detect, that more participants makes the
commission more likely, and that it decreases the probability that individuals involved will depart from
crime. None of these dangers are present when the other conspirator a feigned accomplice, gives
opportunity to entrap
o
Garcia v. State: ∆ convicted of conspiracy to commit murder but the only person conspired with was
police informant.
 Guilty of conspiracy – MPC has a unilateral approach. Look at the individual intent of ∆
*Key distinction btwn conspiratorial and accomplice liability: agreement btwn two or more persons to participate
in commission of crime is key to conspiracy while actual assistance in crime not required. Accomplice liability
requires proof that ∆ at least indirectly participated in crime; agreement to do so not needed.
X. Defenses
 In re Winship: must prove each element BARD;
 Burden of production for defenses on ∆ by preponderance of evidence (MPC §1.12)
 Dispute facts/mens rea
o a. Lack of causation
o b. Lack of the requisite mens rea (Didn’t prove element)
o c. Lack of a voluntary act (Didn’t prove element)
o d. Vagueness/Legality limitations
o e. Lenity
o f. Disproportionality
o g. Lack of any justification for punishment
o h. Lack of agreement as to mistake of fact
o i. Consent
 Justifications: ∆ was morally justified to act as he did; should condone ∆’s behavior. All justification defenses
(SD, defense of others/property, etc.) contain a proportionality requirement
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
Excuses: acknowledge wrongfulness of ∆’s conduct, but admit ∆’s acts not blameworthy because of
circumstances. Looking at ∆, not act. (involuntary actions, cognitive/volitional deficiencies)
Justifications
Self Defense
MPC §3.04 Use of Force in Self-Protection:
(1) Use of force toward another is justifiable when actor believes that such force is immediately necessary
for purpose of protecting himself against unlawful force by other such person
(2) Limitations:
 (a) Use of force not justified:
o (i) to resist arrest where actor knows is being made by officer although arrest is unlawful; or
o (ii) to resist force by occupier or possessor of property where actor knows that person doing
under claim of right to protect property, EXCEPT WHEN: (1) actor is public officer acting in
performance of duties (2) actor has been unlawfully dispossessed of property and is making
re-entry or reception; or (3) actor believes force is necessary to protect himself against death
or SBH.
 (b) Use of deadly force is not justified UNLESS actor believes such force is necessary to protect
against death, SBH, kidnapping or sexual intercourse compelled by force or threat; nor justifiable if:
o (i) actor, with purpose of causing death or SBH, provoked use of force against himself; or
o (ii) actors knows can avoid such force with complete safety by retreating, except that: (1)
actor not obliged to retreat from dwelling or place of work, unless he was initial aggressor;
and (2) public officer justified in using force in performance of duties is not obliged to desist
from efforts to perform such duty , effect arrest, or prevent escape because of resistance of
person whom such action is directed
 Deadly Force as Self Defense
o SD is a defense for using deadly force if ∆ actually (not required for MPC) and reasonably believed he
was in imminent danger of GBH or death, and ∆ was not the aggressor, and (slim majority of states)
does not know there is a completely safe, accessible means of escape
o Self-defense has to be DISPROVED by prosecution
 Reasonable fear/belief: MPC and some jurisdictions “adopt ‘hybrid standard’: ∆ must subjectively believe
defensive force necessary to repel imminent unlawful attack; belief must be that of RP (objectively reasonable)
o People v. Goetz (NY): White man felt threatened by 4 black men on train and shot all. Employs an
objective standard for whether ∆ felt threat of deadly force from other
 Specifying ∆’s Situation: Mitigating factors that are considered:
o (1) previous (similar) experience (Goetz)
o (2) Physical characteristics of ∆ and victims
o (3) Specialized knowledge of aggressor
o (4) physical or mental incapacities
 Honest but unreasonable belief: Prevailing objective test, ∆ has no defense of SD. Other jdxs mitigate:
o (1) “Imperfect SD” – killing is VM because no malice, thus lesser capability
o (2) Can get involuntary manslaughter; MPC approach – if reckless or negligent as to the belief that force
is justified, then justification does not protect against a charge where only recklessness or negligence is
required
 Battered Women’s Syndrome
o State v. Kelly: Public fight, husband choked, punched hit her and bit her. Separated, then he came
towards her and she stabbed him with scissors. ∆ tries to introduce evidence of battered women’s
syndrome.
 Evidence should have been allowed, both to prove her subjective fear, and also to provide
credibility to her testimony that she was more capable of perceiving that her husband was
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about to use deadly force against her. Not saying that the reasonableness of self-defense
should be assessed from the perspective of a reasonable battered woman
Imminent Danger requirement: Force will occur immediately or “at the moment of danger;” inevitability not
enough. Serves as a proxy for necessity. Aggressor’s actions, not ∆’s need, grounds right for SD
o State v. Norman: ∆ kills husband in sleep after 20-yr “reign of terror” and no help from police. “Nonconfrontational” killing.
 No instruction of self-defense given. No belief of imminent threat. Ct worried about vigilante
justice; can’t sanction extrajudicial execution w/out due process. Asks if imminent, not
necessary – other way to think about it is next attack is always imminent
o MPC §3.04(1) – self-defense can be available if actor reasonable believed use of defensive force was
“immediately necessary.” Relaxes the imminence requirement
 MPC §3.04 (can use deadly force if faced with certain felonies, including forced sex)
o Commonwealth v. Sands (VA): abused and tormented woman shot husband 5 times while he lay
watching TV
 Conviction reinstated: no overt act indicating imminent danger from spouse at the time ∆ shot
him
 (But perhaps waiting for the friend = this was her only opportunity -eeg)
 MPC §3.05: someone who comes to the aid of a person in peril can use deadly force to prevent
the attack under same circumstances that would justify the use of deadly force by endangered
person himself if the force is necessary
Transferred Intent in Self Defense: Many jurisdictions say that the justification transfers, MPC disagrees
o MPC §3.09 Reckless or Negligent Injury/Risk to Innocent Persons: (3) When actor is justified in using
force but recklessly or negligently injures or creates risk to innocent persons, justification afforded is
unavailable in a prosecution for such recklessness or negligence towards innocent persons
Retreat: A person has a duty to retreat before using deadly force to defend himself, but he need only retreat
when knows he can do so w/ complete safety. Embraced by MPC but rejected in many CL jdxs
o State v. Abbott: Neighbors shared driveway, doorstop led to fight with hatchet. ∆ claimed he got
hatchet away while family struggled over it.
 Not necessarily required to retreat – (1) duty to retreat only arises if D resorts to deadly force
(2) deadly force not justifiable if actor knows that he can avoid using such force with
complete safety by retreating. MPC case
o Castle Doctrine: even if jurisdiction requires retreat before deadly force, there are exceptions:
intruders, guests, co-occupants in your house
o Stand your Ground Laws – Statutes that abolish retreat requirement. Allows individuals to meet force
w/ force, even if they can retreat in “castle exception” (intruders, guests, co-occupants – biggest issue)
Fault (the Aggressor): Majority of jurisdictions deny initial aggressor, even when met with excessive lifethreatening response. Minority jurisdictions and MPC differs - nonlethal aggressor can regain right to SD if met
by excessive, life-threatening response, provided he exhaust every reasonable means to escape
o US v. Peterson: ∆ came back out of house to threaten deceased with gun and told him to take step and
would kill him. Then shot him.
 Right to use deadly force not available to one who provokes conflict/aggressor
o Andrews v US: D warned by V not to come to his house, D went, V charged with knife, D shot and killed
him. Convicted for murder – court said he provoked conflict.
Protection of Property and Law Enforcement
 Property: Typically use of deadly force for protection of solely property not accepted by courts
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MPC §3.06: Use of Force for Protection of Property:
 (3)(d) Use of Deadly Force: Use of deadly force not justified UNLESS actor believes that: (i) person
against whom force is being used is attempting to dispossess him of dwelling otherwise than claim of
right to its possession (ii) person against whom force is being used is attempting to commit arson,
robbery, or other felonious theft/destruction and either: (1) has employed or threated deadly force
against or in presence of the actor; or (2) use of force other than deadly force would expose actor or
another to substantial danger of SBH
o People v. Ceballos: Set up a trap gun in garage when noticed robbery, shot child who was trying to
break in.
 Convicted of assault with a deadly weapon – no reasonable fear of GBH, taking life for
protection of property not justified. Exception for mechanical devices where intrusion is such
that if person were present would be justified in taking life – not present here
 Homicide is justifiable when a felony is committed in a way that involves violence or surprise.
 Court: the proper standard is forcible and atrocious
Police Officers:
MPC §3.07 Use of Force in Law Enforcement: (2) Limitation on Use of Force:
 (a) Use of force is not justifiable UNLESS: (i) actor makes known purpose of arrest or believes that it
is known or cannot reasonable be made known; and (ii) when arrest is made under valid warrant or is
believed by actor to be valid
 (b) Use of deadly force not justified UNLESS: (i) arrest is for a felony (ii) person effecting arrest is
authorized to act (iii) actor believes force employed creates no substantial risk of injury to innocent
persons; and (iv) actor believes (1) crime for which arrest is being made included conduct including
use of deadly force; or (2) substantial risk that person arrested will cause death or SBH.
MPC §3.11 Definitions:
 (2) Deadly force: force which actor uses with purpose of causing or knows to create risk of causing
death or SBH. Purposefully firing a firearm in direction of person or vehicle constitutes deadly force.
Threat to cause death or SBH by showing weapon does not constitute deadly force.
o
o
Durham v. State: ∆, a police officer, pursued V to arrest him. During the arrest V fought back. ∆ shot V in
arm to subdue him. ∆ found guilty in trial court.
 Reverses conviction, finding that police officer can use force as is necessary to subdue
offender who is resisting arrest for a misdemeanor. If offender uses deadly force to resist
arrest for misdemeanor, officer can use deadly force in return
Tennessee v. Garner: Officer used a handgun to subdue suspect fleeing from scene, killing the suspect.
 Statute blankly allowing deadly force is unconstitutional. Deadly force cannot be used to
subdue fleeing suspect UNLESS 1) it is necessary to prevent the escape, 2) the officer has
probable cause to believe the fleeing suspect poses a significant threat to others, 3) if threat of
SBH to officer
Necessity (Lesser of Two Evils)
 Necessity is available when ∆ committed offense because the harm avoided by committing the offense was
greater than the harm that resulted by committing the offense. Some jurisdictions haves an imminence
requirement and denies defense when arises at some fault of actor – MPC rejects this (with some qualification
for last part under §3.02(2).
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MPC §3.02: Justification Generally: Choice of Evils:
 (1) Conduct which actor believes is necessary to avoid a harm or evil to himself or another is justifiable,
provided that: (a) harm/evil sought to be avoided is greater than that sought to be prevented by law
defining offense charged; and (b) law does not provide exceptions or defenses to specific situation;
and (c) legislative purpose to exclude the justification does not otherwise plainly appear.
 (2) When actor was reckless or negligent in bringing situation requiring choice of evils, justification by
this section is unavailable in a prosecution for offense for which recklessness or negligence suffices to
establish culpability.
 *Subjective requirement that it is necessary and objective requirement that at time of decision ∆
reasonably chose lesser harm. Doesn’t matter if decision came out wrong
o
People v. Unger: ∆ claims that he escaped from prison to avoid sexual and physical abuse. Convicted of
crime for prison escape.
 Reverses b/c jury should have been instructed on necessity defense. Allowed such defense if
(1) accused was w/o blame in developing the situation and (2) reasonably believed that such
conduct was needed to avoid injury greater than that from result of own conduct. Dissent
questions whether necessity defense should be allowed in escape cases, b/c it might incentivize
escapes
Choice of Evils
 MPC: necessity is a justification for conduct that would otherwise be an offense, BUT the harm sought to be
avoided MUST BE OBJECTIVELY GREATER than that which would be caused by the commission of the offense
o i.e. property may be destroyed to prevent a fire
o MPC doesn’t disallow defense for harm caused by ∆’s negligence (i.e. if ∆ negligently crashes his car
and starts a fire – MPC would still allow him the “choice of evils” defense
 NY: harm to be avoided must be a public/private injury that outweighs the harm committed; and that is not be
the result of the ∆
Taking Life to Save a Life
 MPC §3.06 Comment: it’s ok to take 1 life to save 15
o This type of “taking life” still harmonizes with the principle of homicide law
o Maximizing life
 MPC §3.11: self-defense is allowed, no matter how many aggressors there are
o Borough of Southwark v. Williams: homeless people breaking into empty houses.
 MPC might allow this as a defense, but jurors would never allow it, and it’s just not ok
o Commonwealth v. Leno: ∆ convicted of selling hypodermic needles. ∆ argues at trial that it was
necessary to fight AIDS.
 Rejects ∆’s argument since contrary to legislative purpose. Statute demonstrates plain purpose
to exclude a justification in this instance
o US v. Schoon: Indirect civil protest at IRS office against government over $ going to El Salvador.
 Indirect civil disobedience can never invoke necessity defense. To invoke need: (1) choice of
evils, chose lower (2) acted to prevent imminent harm (3) reasonably anticipated causal
relationship btwn conduct and harm averted (4) no legal alternatives. Here missing (2)(3)(4)
o Torture v. State of Israel: Admin directive authorizes Israeli security service to some forms of torture.
 Admin order does not get necessity defense – maybe individual investigator could (depends on
circumstances). Need two factors for defense to be appropriate (1) certainty of individual
having info and (2) likelihood of another attack.
o HYPO: Surgeon speeds to hospital to perform life-saving surgery; hits and kills someone on the way
 Prosecutor proves recklessness (unjustifiable disregard of risk + gross deviation), so a necessity
defense (which requires proving justifiable actions) would be hard to prove in light of a charge
of unjustifiable actions
 Necessity defense is best used when the crime’s elements are PURPOSE AND KNOWLEDGE
46
Excuses

The acts were harmful, but the actor couldn’t have been expected to do otherwise
Duress

Threatened with imminent death or serious bodily; reasonably believe that succumbing to threat is the only
way to save a life
 ∆ must not have been have been at fault
 USUALLY not a defense for murder
 MPC: It may be an affirmative defense if the actor engaged in criminal conduct because he was coerced by the
threat of unlawful force against her person or the person of another, that a person of reasonable firmness in
his situation would be unable to resist
Rationale for duress excuse: (1) threat of punishment is ineffective (util) (2) doesn’t possess crim disposition,
so doesn’t req incap/rehab (3) doesn’t have fair opportunity to exercise free will to act lawfully (retrib)
Criticisms against duress: (1) When temptation to commit crime is strongest, law should speak most clearly
and emphatically to the contrary. (2) only be relevant in the sentencing stage, not the liability stage
MPC §2.09 Duress:
 (1) Affirmative defense that actor engaged because he was coerced to do so by the use of or threat to use
unlawful force against his person or person of another which a person of reasonable firmness in his situation
would have been unable to resist.
 (2) Defense unavailable if actor recklessly placed himself in situation in which it was probably that he would
be subjected to duress. Defense also unavailable if he was negligent in placing himself in such a situation
whenever negligence suffices to establish culpability for the offense charged.
 (3) Not defense that woman acted on command of her husband unless she acted under such coercion as
defense in (1).
 (4) When conduct would otherwise be justifiable under §3.02, this section does not preclude such defense
o


Toscano: Doctor faked medical records for ∆, who threatened harm to him and his wife.
 Duress defense was allowed even though threat was not imminent. Duress as defense to
crime other than murder if ∆ was coerced to do so by use of or threat of use unlawful force,
which reasonable person could not resist. *Different from MPC since it precludes murder and
MPC does not
o US v. Fleming: Korean POW collabs w/enemy under threat of forced march or cave placement.
 Threat of death must be imminent, which was not case here. Potential downstream
consequences of allowing duress defense too great
o US v. Contenco-Pachon: D should be able to show evidence of duress – drug lords threatened to kill his
family unless he transported drugs. Reporting to the police not an option.
o Regina v. Ruzic: Similar details, acquitted because Canadian court determined she had no realistic
choice, even when threat was not imminent
Offenses Allowed Under Duress
o Abbott: one ought rather to die than kill an innocent; (treats duress more as justif. than excuse)
compare with dissent in Erdemovic ( mass killings): society should not req martyrdom
o Common law and 17 states by statute don’t allow duress as defense to intentional killing.
o Norm softening  NJ allows duress as incomplete defense (mitigates to manslaughter)
o States split on allowing duress defense for FM. Some states believe that if duress defeats the
underlying claim, then an independent finding of malice must be made in order to convict for murder.
Other Cts hold duress is never a defense to another homicide charge
“Situation” under MPC
Element of Duress
Jurisdictions
MPC approach
Generally, accused or person of another must be threatened
✔
✔
member)
Generally, threat must come from another person, not circ
✔
✔
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Aggressor must threaten unlawful force to cause at least serious
injury
Proportionality: less harm ∆ is threatened, less force ∆ may use in
return
Threat must be imminent
Obj standard: man of reasonable fortitude in ∆’s position would
be unable to resist
Fear has to be objectively reasonable, well-grounded
∆ must lack reasonable means of escape
If ∆ recklessly places self in situation, no duress defense
✔
✔
✔
✔
✔
reasonableness
✔
✔
✔ (slim maj.)
✔
✔
Intoxication
Issues to consider:
 How did ∆ become intoxicated? (Involuntarily vs. voluntarily);
 How does ∆ claim intoxication affected culpability?
 W/what type of offense is ∆ charged? (general/specific intent, SL)
MPC §2.08 Intoxication:
 (1) Except (4), intoxication of actor is not a defense unless it negatives an element of offense.
 (2) When recklessness establishes element of offense, if actor (due to voluntary intoxication) is
unaware of risk, but would have been had he been aware if was sober such unawareness is immaterial.
 (3) Intoxication does not itself constitute mental disease in §4.01.
 (4) Intoxication which (a) is not self-induced or (b) pathological is an affirmative defense if by reason
of such intoxication the actor at time of conduct lacks substantial capacity either to appreciate its
criminality or conform his conduct to requirements of law.
 (5) Definitions: (a) “intoxication” – disturbance of mental or physical capacities resulting from
introduction (b) “self-induced intoxication” - by substances which actor knowingly introduces into
body, tendency of which cause intoxication he knows or ought to know, unless introduces then
pursuant to medical advice or such circums as would afford defense to charge of crime (c)
“pathological intoxication” – intoxication grossly excessive in degree to which actor does not know he
is susceptible.
 Voluntary intoxication: Common law treats intox resulting from alcoholism/addiction as voluntary
 If ∆ did not harbor mens rea for offense
Majority view: not defense to GI crimes; is defense to SI crimes (∆ incapable of forming specific intent req’d
in definition of offense). (People v. Hood)
Criticism: May lead to outright acquittals in some cases if there is no underlying general intent crime.
Also violates utilitarian principles b/c it does little to further crime’s basic purpose, to protect society
from dangerous behavior.
Minority view: Rejection of evidence of intox on issue of MR altogether (Stasio), except in murder cases to
show the absence of intent or absence of a “depraved heart”
[Exception: MT, where by statute ∆ cannot intro evidence of intox ever.] Intox may be intro’d at sentencing
to mitigate punishment. Rationale: ∆ equally dangerous in SI/GI crimes; general deterrence demands equal
treatment. ∆ responsible for actions.
MPC approach: Intox admitted as evidence whenever logically relevant to MR, except when offense reqs R
(in which case the fact that you didn’t intentionally disregard risk is irrelevant).
Rationale: moral equation btwn reckless wrongdoing and drunken, negligent wrongdoing. “Becoming so
drunk as to destroy temporarily pwrs of perception/judgment is conduct that plainly has no affirmative
social value to counterbalance potential danger. Moral culpability lies in engaging in such conduct.”
Criticism: R is often not conscious while getting drunk that he is creating a substantial and unjustifiable
risk. (Example: having a few drinks at a party when you expect your friend to be the designated driver).
If ∆ acted in state of unconsciousness brought on by voluntary intox
o Not a defense if unconsciousness caused involuntary bodily movements
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
o Is a defense if ∆ didn’t commit act at all, as opposed to involuntarily
o MPC: conduct during unconsciousness involuntary, therefore ∆ NG
If ∆ suffers from intoxication-induced insanity
o Not a defense if ∆ claims “temporary insanity”
o Is a defense if ∆ has fixed, subst-induced mental disorder (earlier voluntary decision morally remote?).
Usually used when ∆ not intox at time of offense.
o
People v. Hood: Drunk guy shoots policeman while resisting arrest (assault w/deadly weapon = SI
crime).


Ct holds was actually general intent crime, thus intox. not defense  punish ppl severely for
failure to control base instincts; assault often arises from rashness/passion, esp. unlocked by
alcohol
o State v. Stasio: ∆ convicted of robbery w/ intent to steal.
 Ct upholds conviction, and states that intoxication cannot be used as a defense for specific
intent crimes. Ct states that intoxication could be used to show lack of malice, mistake of fact,
or that you were too drunk to even participate in a crime
Involuntary intoxication: ∆ is not to blame for becoming intoxicated (exceedingly uncommon). ∆ coerced to
ingest an intoxicant; ∆ ingests intoxicant by innocent mistake; ∆ becomes unexpectedly intoxicated from
prescribed medication (purposeful OD not ok); Pathological intox (∆ unknowingly susceptible to intox gross in
degree to amt consumed) (affirmative defense under MPC)
o Regina v. Kingston: drugged man molests boy.
 We can’t allow people with strong criminal impulses to argue that drugs allowed them to act
on those impulses. Justice is not frustrated if evidence of intoxication is allowed at sentencing
as a mitigating factor
Insanity
 Mental Illness: medical term, broad (can be neither insane or incompetent)
 Insanity – legal term, referring to mental state at time of offense, precluding responsibility
 Incompetence – legal term, mental state at time of legal proceeding
o Rationale: If ∆ not specifically deterrable, not worth punishing, unfair to people not responsible for
their actions, aren’t morally condemnable  insane asylum (don’t go free)
MPC §4.01 Mental Disease or Defect Excluding Responsibility:
(1) Not responsible for criminal conduct if at time lacks substantial capacity either to appreciate the criminality of his
conduct or to conform his conduct to the requirements of law as a result of mental disease or defect.
(2) Mental disease or defect does not include abnormality manifested only be repeated criminal or otherwise antisocial conduct. Acting criminally ≠ insanity
MPC §4.02 Evidence of Mental Disease or Defect When Relevant to Element: (1) Evidence of mental disease or defect
is admissible whenever relevant to prove that ∆ did or did not have state of mind that is element of offense.
MPC §4.03 Mental Disease or Defect Excluding Responsibility Is Affirmative Defense: (1) Mental disease or defect
excluding responsibility is an affirmative defense.
MPC §4.04 Mental Disease or Defect Excluding Fitness to Proceed: No person who lacks capacity to understand
(due to mental disease or defect) proceedings against him or assist in own defense shall be tried, convicted or
sentenced for commission of offense so long as such incapacity endures. [COMPETENCE]


POLICY (insanity):
o Bad v. mad: Where to draw line btwn irresponsible ∆, and ∆ w/no capacity to act responsibly. Hard to
make distinctions. Easy for rich guy (Blake) to get “record” of insanity; harder for poor guy
o Prone to Abuse – Little empirical support but still a concern
o Battle of the experts: Do we know enough about psych/psychiatry to reliably classify ∆s?
o Free will: Opens door to saying we act a certain way bc of brain structure/chem
TWO Approaches
o M’Naghten: Insanity defense if he can prove that, at the time, he (
49






1) Doesn’t know the nature and quality of the act he was doing (= COGNITIVE PRONG) OR
(2) If he did know what he was doing, he didn’t know that what he was doing was wrong (=
VOLITIONAL PRONG)
o MPC (4.01) – Melds M’Naghten w/irresistible impulse rule
 As a result of mental disease or defect, ∆ lacked substantial (not total) capacity to
 (1) appreciate wrongfulness of conduct (affective engagement of right/wrong), or
 (2) conform conduct to reqs of law (incorporates volitional prong)
st
 1 prong: If moral considerations completely alien to insane ∆, shouldn’t be punished
 2nd prong: softer version of II test. ∆ only has to lack “substantial” capacity to control self
o Blake v. US: rich guy with mental issues robs a bank. Ct thinks he was aware of his acts. Uses substantial
capacity standard  JURY decides what’s substantial
 Ct: adopts MPC, says it includes volitional prong
POLICY (insanity) Volitional Prong Criticism
o Practical issue: No objective method to differentiate btwn ppl who can’t control themselves, and those
who choose not to. Counterarg: not impossible; SVP confinement constitutional. Also, very rarely
invoked as basis of insanity defense and very rarely succeeds. Why not just have it available for cases in
which it clearly applies?
o US v. Lyons: ∆ claims drug addiction rendered him substantially incapable of conforming conduct. Ct
abandons volitional prong (did he lack capacity or did he not want to control his body). Too
diff/confusing to determine volition
Definition of “Wrong” in Insanity Defenses
o Unclear on whether knowing the difference between right and wrong for purposes of the insanity
defense means 1) being able to tell whether something is morally right/wrong, or 2) being able to tell
where something is legally right/wrong.
 Some jdx hold it means legally right/wrong
 Some jdx hold it means morally right/wrong
 Many (maybe most) jdx leave it to the jury to figure out
o State v. Crenshaw: ∆ kills wife, claims that his religion would have sanctioned killing. Claims insanity on
the grounds he didn’t know what he was doing was “wrong.”
 For purposes of insanity defense, not knowing diff. b/w right/wrong means not being able to
tell if something is legally right/wrong. Ct states that criminal law’s ability to sanction would
be significantly undermined if moral conception of right/wrong were the standard (he didn’t
think God told him to kill; he thought his religion did)
o Serravo: “The public would think killing my wife is immoral, but if they knew what I know…”
o Under M’Naughten = society’s morals, not the individual’s morals, determine right and wrong
o Deific Decree Exception: if you think God is talking to you, then what the law/what people think is right
falls by the wayside
o State v. Guido: Wife killed her husband. He was having an affair, she wanted a divorce, she tried to
commit suicide but instead killed him. Court psychiatrists say she was legally sane, but then changed
their conclusion to legally insane. Prosecutor claims this change was “concocted.”
 Doctors originally thought that “disease of the mind” means psychosis but realized that this
was too narrow. “Anxiety neurosis” is enough to qualify if ∆ did not know that what she was
doing was wrong
DEFINITIONS OF INSANITY
o McDonald v. US: any abnormal condition which substantially affects __ and substantially alters
behavioral controls
o American Psychiatric Society: any severe abnormal mental condition that grossly or demonstratively
impairs…
 We don’t think that drugs/alcohol work unless your brain chemistry is permanently altered
Psychopaths
o MPC §4.01(2): evidence of chronic criminal behavior ≠ evidence of insanity
 You cannot demonstrate mental disease or defect ONLY by repeated criminal behavior
50
o
Automatism: no mental disease or defect; just an unconscious act (no actus reus)
 Complete Defense: you won’t be committed.
 Epilepsy
 Diabetic shock
 Getting shot in the stomach; presumably other people get shot and don’t go unconscious
 LOOK FOR external/internal (i.e. why did this person flip out) and whether defect is prone to
recur
Diminished Capacity
 ∆’s mental disease/defect negates capacity to form particular MR req’d for offense (Brawner).
 A diminished capacity defense contends that ∆ is incapable of intending to cause a death, and therefore at
most caused such a death recklessly. Thus, a successful plea of Diminished Capacity in a murder trial would
likely result in mitigation to manslaughter
 If ∆ establishes volitional impairment due to mental illness, not same as saying ∆ didn’t commit a voluntary act.
∆ only has to raise RD as to mens rea
o POLICY (diminished capacity) Tactical advantages to using DC/MR defense
 Avoid civil commitment
 If convicted of lesser offense, will spend less time in custody than if acquitted by insanity
 May succeed where insanity fails if uncertainty re: psych testimony, bc proec bears BOP
o 2 approaches to admission of mental health evidence short of insanity defense
 US v. Browner: deliberate and premeditated murder requires specific intent that cant be
satisfied merely by showing that ∆ failed to conform to an objective standard
 Mental Health evidence allowed whenever logically relevant to combat charge
(majority & MPC approach)
 Clark v. Arizona: Mental Health evidence Never admissible to defeat Mens Rea (can only use to
establish insanity defense)
 JJ: sometimes the evidence is excluded in specific intent because “we want to get the guy for
something”
o Difference between Diminished Capacity and Automatism:
 Automatism works on assumption that there is no mental disease or defect; if you find that
there is a disease or defect but doesn’t allow insanity, maybe can argue that in this instance did
not form the requisite mental state
 Think with diminished capacity there are specific mental states that not able to have;
states seem to impose the evidence allows with specific intent crimes (how it’s like
intoxication)
A crime is a
1. voluntary act (or omission)
2. that causes social harm,
3. satisfies mens rea requirements or is an offense of strict liability,
4. for which there is actual causation, or
5. proximate causation
Defenses
 Justifications
o Self Defense
o Protection of Property/Law Enforcement
o Necessity (lesser of two evils)
 Excuses
o Duress
51

o Insanity
o Intoxication
Negation of MENS REA
o a. Lack of causation
o b. Lack of the requisite mens rea (Didn’t prove element)
 Mistake of fact/law
o c. Lack of a voluntary act (Didn’t prove element)
o d. Vagueness/Legality limitations
o e. Lenity
o f. Disproportionality
o g. Lack of any justification for punishment
o h. Lack of agreement as to mistake of fact
XII. Justification (it was the right thing to do)
Self-defense
 CL: “reasonable belief,” imminent threat, initial aggressor, battered woman
 MPC: permits partial defense if actor’s mistake is negligent
 Third party: may use force to the extent that she/he could use self-defense herself
o MPC: reasonable belief that the 3rd party needs help
Protection of Property and
 CL: no deadly force to protect personal property; acceptable to protect the home
 Modern: the dweller must reasonably believe that the intruder intends to commit a forcible felony therein
Law Enforcement
 Deadly force is justifiable only if reasonably believed to be the only way to stop a forcible felony
o CL: deadly force is ok to effectuate arrest
o SCOTUS: no excessive force when making an arrest or preventing flight after arrest
Necessity
 Residual defense
 Element:
o Reasonable belief of threat of imminent harm to self or others, including property
o Reasonable belief that committing harm is only way to prevent threatened harm
o Person must not be at fault for creating the emergency
o Lesser harm principle
o MPC Differences
 Doesn’t require immediacy
 Defense can be used for any crime (including murder)
Euthanasia
XIII. Excuse (wrong thing, but excused under the circumstances)
Duress
 Threatened with imminent death or serious bodily
 Reasonably believe that succumbing to threat is the only way to save a life
 ∆ must not have been have been at fault
 USUALLY not a defense for murder
 MPC: It may be an affirmative defense if the actor engaged in criminal conduct because he was coerced by the
threat of unlawful force against her person or the person of another, that a person of reasonable firmness in
his situation would be unable to resist
Intoxication
 Voluntary
52
o
o
Not a defense, but it CAN serve as a mens rea defense for a specific intent crime
MPC: same general principle; if charged with crime of recklessness, which ordinarily requires
awareness of risk, actor may be convicted of recklessness even it he wasn’t aware of risk, so long as he
would have been had he been sober
 Involuntary
o If unforeseeable, if forced to take intoxicant, or if it was innocently accidental, then courts might be
sympathetic to allowing it to be a defense both for specific and for general mens rea.
o Defense allowed if it satisfies state’s insanity definition
Insanity
 If not guilty, defendant is committed to a mental institution
 M’Naughten Rule:
o (1) ∆ didn’t know the nature and quality of the act at the time he did the act (VOLITIONAL)
o (2) ∆ didn’t know he was doing something wrong (WRONG)
 MPC: ∆ lacked substantial capacity to appreciate the criminality or wrongfulness of his conduct, or lacked
substantial capacity to conform conduct to the law
Diminished Capacity
 Mens rea: if ∆, because of abnormal mental condition, lacks specific intent to commit a specific intent crime, he
will be acquitted (MPC allows this; many states do not)
 Partial responsibility (to reduce the crime of murder to the lesser offense of manslaughter on the ground that
the person claiming the defense is mentally ill, or has a low IQ, making him less culpable than a person who
does not have that condition. (MPC allows this; only a few states do)
Changing Patterns of Excuse
53
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