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Criminal Law- Spring 2018 - Prof. Cole

What is crime?
A voluntary act that results with a social harm, punishable by the community typically in
the form of prison sentence or fine which carries with it a societal condemnation and
Beyond a Reasonable Doubt
The Due Process Clause requires the prosecutor to prove every element of a crime
beyond a reasonable doubt.
If you have a single reasonable doubt that the person didn’t commit the crime, then you
cannot find them guilty.
Exists when the state of the case leaves the minds of jurors such that they cannot say they
feel a settled and fixed conviction as to the truth of the charge.
THEORIES- why do we punish people?
Utilitarian- looks forward
o Basic concept is that society should try to maximize the net happiness of people.
o Believe the pain inflicted by punishment is justifiable if, but only if, it is expected
to result in reduction of pain that would otherwise occur due to crime.
o Utilitarian belief is that punishment is a mischief that should not be imposed
unless it will result in a net benefit to society
o The pain threatened to the criminal must be greater than pleasure that the criminal
thinks he will obtain by committing a crime.
 (think of white collar crime- must have a high punishment so that
criminals won’t steal the money because they think the money is worth the
small punishment.)
o Focuses on punishment and can be categorizes into four general beneficial
 General deterrence
 Deterrence by looking at the punishment of others.
 Punishment aims to deter other criminals by having them view
others being punished for their crimes
o “oh I’m not going to rob that bank, I heard Bob just got 20
years for that.”
 Punishment is necessary to convince the general community to
forgo criminal conduct in the future.
 Individual (Specific) deterrence
Deters criminals from becoming repeat offenders due to their
previous punishments.
 Will not commit the crime again due to their punishment
o “I’m not going to rob a bank ever again! I don’t want to go
back to prison”
 Incapacitations and other forms of risk management.
 Physically deters criminals from committing crimes while they are
 if we incarcerate D, then D with be incapacitated from committing
additional crimes
o can’t commit crime while locked up
 Less drastic forms include
o Probation, parole supervision, drug testing
 Because utilitarian belief is that punishment is a mischief that
should not be imposed unless it will result in a net benefit to
society, punishment based on this principle is only justifiable if to
the extent that the sentencing authority can reliably predict the
future dangerousness of offenders and then only if the predicted
reduction in crime from incapacitation outweighs the hardship that
will be imposed on those incarcerated and the economic costs of
their incarceration.
 Reform
 Think “correctional facilities”
 Punishment may help to reform the criminal so that his wish to
commit crimes will be lessened, and perhaps so that he can be a
happier, more useful person.
 May help an offender become aware that he has acted wrongly
Retribution – looks back
o Argues that persons who choose to do wrong acts deserve punishment, and that it
should be imposed on them even if it serves no utilitarian purpose.
o Punishment must be imposed because the offender deserves to be treated as a
moral agent who has earned punishment by his crime.
o Failure to impose such punishment refuses to recognize this moral capacity. Thus,
every criminal has a right to punishment.
o Simplified:
 We are justified in punishing because and only because offenders deserve
it….Aka justice
o Two theories
 Assaultive retribution
 Public vengeance or societal retaliation
o Think “revenge”
 Protective retribution
 The criminal needs to pay a penalty in order to enter back into
 The criminal will never be whole again if they do not receive the
ACTUS REUS- The physical and external part of the crime
Criminal Act (actus reus) + Criminal Mind (mens rea) = CRIME
When reading a statute, identify what the mens rea standard is (as listed in the statute)
and what the actus reus standard is (as listed in the statute)
o Any person who, while intoxicated or drunk, appears in any public place and
manifests a drunken condition by boisterous or indecent conduct, shall be fined
 The actus reus is to appear (is it assumed that it must be a voluntary
 The mens rea is to be intoxicated or drunk
o Voluntary Act
o That causes (causation)
o Social harm
Courts and lawyers use the term in various ways but the most common definition is both
“the conduct” and “the harmful result”.
o Example: A throws a hand grenade into B's house, killing B. Some would say the
actus reus is A's conduct of throwing the grenade, but others would say it is the
resulting death of B. Most commonly it would be both.
o Comprehensive notion of act, harm, and its connecting link, causation, with actus
expressing the voluntary physical movement in the sense of conduct and reus
expressing the fact that this conduct results in a certain proscribed harm
Some crimes are result crimes while others are conduct crimes
o Result Crime: for example, murder. The result of death of another is the crime
o Conduct Crime: for example, driving while intoxicated. The conduct in itself is
the crime, with no end result necessary to make it so.
Voluntary Act:
A person is not guilty of a criminal offense unless his conduct includes a voluntary act.
One is responsible only for those consequences that are caused by his actions and not for
those things in which his body but not his acting self, is casually implicated
What is a voluntary act?
o A willed movement of the body OR an act of free will
One is responsible if he hits another with a stick, but is not responsible if his arm with
stick is caused by the wind to strike another
o Dangerous dog chasing child into a door; Failing to open the door will result in no
liability because it is an omission, but closing the door on the child will result in
liability because it is an act
o Punishment for mere thoughts is condemned in the US. Why do we need an act to
be punished?
 All law abiding citizens have bad thoughts
 We can’t read people’s minds
 Bad thoughts do not necessarily cause social harm
Narrow meaning of voluntary: movement of the body that follows our volition.
o If you are kidnapped and instructed to drive as a getaway car, your action of
driving is voluntary because it is a movement of your body that follows your
volition; however, the mens rea is lacking because there was no criminal intent.
Other than omission, a person is not guilty of an offense unless his conduct includes a
voluntary act.
o Excludes punishment for mere thoughts and also bars liability for purely
involuntary conduct.
Model Penal Code Section 2.01 Requirement of Voluntary Act; Omission as basis of
Liability; Possession as an Act:
o A person is not guilty of an offense unless his liability is based on conduct which
includes a voluntary act or the omission to perform an act of which he is
physically capable.
o The following are not voluntary acts within the meaning of this section
 A reflex or convulsion
 A bodily movement during unconsciousness or sleep
 Conduct during hypnosis or resulting from hypnotic suggestion
 Bodily movement that otherwise is not a product of the effort or
determination of the actor, either conscious or habitual.
o Liability for the commission of an offense may not be based on an omission
unaccompanied by action unless:
 The omission is expressly made sufficient by the law defining the offense;
 A duty to perform the omitted act is otherwise imposed by law.
o Possession is an act, within the meaning of this section, if the possessor
knowingly procured or received the thing possessed or was aware of his control
thereof for a sufficient period to have been able to terminate his possession.
Martin v. State:
o An accusation of drunkenness in a designated public place cannot be established
by proof that the accused was involuntarily and forcibly carried to that place
while intoxicated.
State v. Utter
o An act committed while one is unconscious is in reality no act at all. It Is merely
a physical event or occurrence for which there can be no criminal liability
Omissions (Negative Acts)
The criminal law distinguishes between an act that affirmatively causes harm and the
failure to take measures to prevent harm
General Rule is that a failure to act does not constitute a criminal act
Situations in which the failure to act may constitute breach of a legal duty. One can
be held criminally liable:
o When a statute imposes a duty
o Where one stands in a certain statutes relationship to another
o Where one has assumed a contractual duty to care for another
o Where one has voluntarily assumed the care of another and so secluded the
helpless Peron as to prevent others from rendering aid
 Example:
 Seclusion doesn't have to be physical. If lots of people are on a
beach and a person out in the ocean is drowning. If one person
goes out to help and then decides to leave, they have a legal duty
because their volunteering to help meant that all others on the
beach didn't help. That is secluding the helpless person as to
prevent others from rendering aid.
o When a person creates a risk of harm to another
 Example: if you hit a pedestrian with your car you now have a legal duty
to help them.
People v. Beardsley
o Beardsley and his mistress went on a drunken and adulterous weekend fling; she
took an overdose of morphine towards the end it, and he did nothing to save her.
Also, he hid her in the basement before the death happened so his wife wouldn’t
find her.
o The court found that there was no duty because there was not a special
relationship between the D and the victim; therefore he owed no duty to her.
 The decision stressed that the mistress knew the risk involved, and that she
had had “ample experience with such affairs.”
o On the contrary, Prosecution could argue this is NOT an omission but an act. He
acted in hiding her in the basement.
Barber v. Superior Court
o There is no criminal liability for failure to act unless there is a legal duty to act. A
physician has no duty to continue treatment, once it has proved to be ineffective.
There must be a causal connection between the voluntary act and social harm
As a practical matter, causation only turns up as an issue in the prosecution of result
crime because if you were prosecuting a conduct crime there is obvious social harm so
there is no link to be made between the act and the harm.
Cause in Fact
o A defendant’s conduct is a cause in fact of the prohibited result if the said result
would not have occurred but for the defendant’s conduct
o BUT FOR the voluntary act of the accused would the socially prohibited harm
have occurred (when it occurred)?
 If YES, it would have occurred, then there is no causation. Therefore there
is no crime
If NO, it would not have occurred, there is causation. Therefore, there is a
Multiple Actual Causes
o Accelerating a Result
 Accelerating causes are actual causes.
 To bring about a result sooner than it would have occurred has the
defendant not acted
 The prosecutor will need to prove beyond a reasonable doubt that
the victim would not have died when he did, but for the defendants
 Said in another way,
 Ask yourself, if the voluntary act didn’t happen, would the death
have occurred when it occurred?
o If it wouldn’t have occurred at the time without the
voluntary act then the defendant IS AN ACTAUL CAUSE.
 It doesn’t matter how must the result is accelerated. Could be 20 years,
could be 15 minutes.
 Oxendine v. State
 Dad was convicted by jury of manslaughter for the death of his son
whom the Defendant had beaten or kicked in the abdomen. The
Defendant was convicted of manslaughter, and he argued on
appeal that since the Defendant’s girlfriend had already delivered a
fatal blow to the victim, he did not actually cause the victim’s
 The court ruled that D was entitled to a directed verdict of
acquittal, because the prosecutor failed to prove beyond a
reasonable doubt that D hastened V’s death. If the state had
introduced evidence that the beating inflicted by D had shortened
his child’s life even by a short time, D could properly have been
declared an actual cause of the death along with his girlfriend.
o Concurrent Sufficient Causes
 But for the voluntary act, would the social harm have occurred when and
as it did?
 If yes then no causation
 If no then yes there is causation
 Each act alone must be sufficient to cause the result that occurred when it
 Can’t be in concert/ completely independent of each other.
 But for causes DO NOT cancel each other out.
 A man struck by lightning and killed by a falling tree.
o Obstructed Cause 
 The chain of events were disrupted therefore no causation for the initial
Action that broke the chain could stand alone as an actual cause and
therefore even in the absence of the first actor the death would have
occurred when it occurred.
The latter act is considered the obstructing act and therefore becomes the
only actual cause. (superseding cause)
 D1 shoots V in the stomach. Simultaneously and independently,
D2 shoots V three times in the head, killing him instantly. D2 is
the only actual cause because it obstructed the chain of causation.
o The three bullets to the head would have killed V instantly
regardless of the bullet to the stomach.
Only one actual cause in these situations
Proximate Cause (Legal cause)
Serves the purpose of determining who or what events among those that satisfy the “but
for” standard should be held criminally responsible for the resulting harm.
o Under what circumstances should the defendant, who acts with the requisite mens
rea, and who commits a voluntary act that is a cause in fact of the social harm, be
relieved of criminal responsibility because of an intervening cause?
A person or event cannot be a proximate cause of harm unless she or it is an actual cause,
but a person or event can be an actual cause without being the proximate cause.
Issues of proximate cause generally arise when an intervening force exists, when some
but for causal agent comes into play after the defendant's voluntary act or omission and
before the social harm occurs
o Typical intervening causes include
 Act of God (an event that cannot be traced back to any human
 An act of an independent third party which accelerates or aggravates the
harm caused by the defendant, or which causes it to occur in an
unexpected manner
 An act or omission of the victim that assists in bringing about the
An intervening cause that breaks the causal chain is a superseding cause
Proximate causation is an effort by the fact finder to determine, based on policy
considerations or matters of fairness, whether it is proper to hold the defendants
criminally responsible for a prohibited result
o Direct Cause: D shoots V and V instantly dies. A direct cause is always also a
proximate cause
Factors to be considered in determining if an intervening cause is a superseding
o De minimus contribution to social harm factor
 Wrongdoers who have too minor a casual role to justify criminal
 If a defendant’s cause in fact is exceptionally insubstantial in comparison
to that of an intervening cause then generally the intervening cause will
become superseding.
 Therefore defendant is not criminally liable.
Intended-consequence doctrine
 A voluntary act intended to bring about what in fact happens and in the
manner in which it happens.
 Trace the cause of social harm backwards through other causes until we
reach an intention wrongdoer
 Intended consequences are never too remote
 Basically the mens reas of proximate cause
 It doesn’t matter that he died in an unforeseeable way, you still had
the mens rea and your act was an actual and proximate cause.
Omissions factor
 An omisssion will rarely be a superseding intervening cause
 Example: D was negligently driving and killed his passenger, V, in
a car accident. V wasn't wearing seatbelt. Experts determined V
wouldn't have died if he was wearing a seatbelt.
o Although this will most likely not relieve the Defendant of
criminal liability.
 Example: Father failed to take any action while someone beat his
son to death. The father’s omission will not relive the attacker of
criminal liability, although the father may be charged as well.
Apparent safety Doctrine
 When a defendant’s active force has come to rest in a position of apparent
safety, the court will follow it no longer.
 Once the victim has reached a place of apparent safety, it is no longer fair
to hold the defendant responsible for the result
 Often times will be argued with Voluntary Human Intervention.
 Coincidental intervening cause
 A force that does not occur in response to the initial wrongdoer’s
 A coincidental intervening cause WILL RELIEVE the defendant
of criminal liability UNLESS the intervention was foreseeable.
o Defendant injures victim. Victim goes to hospital. While an
in-patient at the hospital, someone from the psych ward
escapes and kills victim.
 D will not be criminally liable because the
intervening act was not foreseeable
 Responsive Intervening cause
 An act that occurs in reaction or response to the defendant’s prior
wrongful conduct.
 A responsive intervening cause WILL NOT relieve the defendant
of criminal liability, UNLESS the response was not only
unforeseeable, but highly abnormal or bizarre.
 Medical malpractice is an example: the doctors are responding to
what the defendants put in motion
o D seriously wounds V. V is taken to the hospital where he
receives poor medical treatment by physician X and dies.
 Responsive are generally more foreseeable than coincidental
o Voluntary Human intervention
 Defendant is more apt to be relieved from criminal responsibility in the
case of a voluntary, knowing, and intelligent intervening human agent than
in a case of the intervention of a natural force or the actions of a person
whose conduct in not fully free.
 Example:
 Intruder is in house, V runs upstairs to avoid intruder. Intruder
comes up and is trying to get into the room she was in. V then
jumps out the window to get away and dies.
o Here, V’s actions were less than voluntary from a mens rea
standpoint, since she really had no choice. Therefore this
would not be a superseding cause a D would still be liable.
 Think about the woman who was threatened by her husband and
ran from the house to her dads house but when she got there she
chose to sleep outside rather than wake her dad. She is now
responsible for her own death because she voluntarily chose to
sleep outside in the freezing weather.
 Think Jehovah witness denying blood transfusion
People v. Rideout
o After safely leaving the car involved in a car accident, the victim when back in the
middle of the road and was then struck by a another care.
o Rule: A defendant may not be held guilty of a crime in which his conduct is the
cause-in-fact of injury to the victim but is not the proximate cause, since a
superseding cause intervened to cause the victim’s injury, a cause which may
even be the victim’s own choice to risk his safety. (Apparent Safety Doctrine and
Voluntary Human Intervention)
Social Harm
Society is wronged when an actor invades any socially recognized interest and diminishes
its value.
Social harm is the negation, endangering, or destruction of an individual, group or state
interest which was deemed socially valuable.
For us to say that “social harm” is an essential element of all offenses the term must be
broadly defined.
Social harm is not as apparent with conduct crimes as it is with result crimes.
Result crime
o The law punishes because of an unwanted outcome.
o Does not matter how the result occurs (e.g., whether the actor kills by gun or knife
or poison), just that it does result.
o Example:
 Homicide.. there needs to be a dead human being
 Destruction of property.
Conduct Crime
o The law prohibits a specific behavior. There is generally no obvious social harm.
o A harmful result is not required in order for it to be considered a crime.
 Example:
 Drinking and driving and attempted murder.
 In these situations the individuals are subject to criminal
 Went out and drank and woke up with your car in the drive way
but no idea how you got home. No one saw you driving drunk and
no one was injured…but you did drive.. so was there any social
o There is social harm because you have endangered society.
You lessen the safety that society is entitled to.
o Utilitarian’s believe conduct crimes should be punished, regardless of the missing
social harm because the actors conduct may cause future harm.
o Retributivists believe that punishment of an actor is unjustified in the absence of
social harm. Only then has the actor taken something from society. Only then is a
debt owed. Only then is it right for society to take something from the actor, by
means of punishment.
A guilty mind, purpose, intent
Nations have long looked to the wrongdoer's mind to determine both the propriety and
the grading of punishment.
Actus non rule: An act does not make the doer of it guilty, unless the mind be guilty; that
is, unless the intent be criminal.
Culpability Meaning (Broad)
Broadly speaking, mens rea means morally culpable state of mind.
A defendant is guilty of a crime if she commits the social harm of the offense with any
morally blameworthy state of mind; it is not significant whether she caused the social
harm intentionally
General Intent
Elemental Meaning (Narrow)
A defendant is not guilty of an offense even if she has a culpable frame of mind, if she
lacks the mental state specified in the definition of the crime.
Here, a defendant is not guilty of the offense if she does the act recklessly, even though
recklessness is a morally blameworthy state of mind.
Specific Intent
Common law mens rea terms
o It is his desire to cause the social harm
o He acts with knowledge the social harm is virtually certain to occur
 Subjective standard of measurement
o A person has knowledge of a fact if he is aware or correctly believes that it exists
o What if a person intentionally and deliberately remains ignorant?
 The D did not act with knowledge UNLESS there is an ostrich provision.
 Ostrich provision says:
 if there was a high probability of a fact, but the def failed to
investigate or remained deliberately ignorant, he is treated as if he
o Sometimes synonymous with “intentional”
o Sometimes means with bad purpose or evil motive
o Sometimes means intentional violation of a known legal duty (a purpose to
disobey the law)
o Example:
 A man believed he could invoke his 5th amendment right against selfincrimination and refused to answer questions in court. Prosecutor gives
him transactional immunity. Man still believes he doesn't have to answer
the questions. He is held in contempt of court. He was charged with
"willfully refusing to answer the question" --He acted intentionally, but it
wasn't necessarily with bad purpose or evil motive
o Civil negligence is a deviation from accepted standards of care.
o Criminal negligence is more. It’s a gross deviation from accepted standards of
 3 factors to consider
 Gravity of harm
 Probability of the harm occurring
 Burden on the defendant to desist
o Inadvertent risk taking that the reasonable person would have known
o Objective standard (no subjective component at all to negligence)
o Example:
 Person is driving 60 mph down main street. Gravity of harm: Risk to
human life. Probability of harm occurring: It depends on time of day.
Burden on def to desist: virtually none, but it depends on the situation
(could have an emergency victim in the back seat rushing to the hospital)
o At one time negligently and recklessly were synonymous
o Now criminal recklessness requires proof the actor disregarded a substantial and
unjustified risk of which he was aware.
Model Penal Code
The model penal code takes out intentionally and willfully and adds purposefully. However, it
defines purposefully differently if it is a result crime from a conduct crime.
MODEL PENAL CODE - 2.02 General Requirements of Culpability.
(1) Minimum Requirements of Culpability. Except as provided in Section 2.05, a person is not
guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law
may require, with respect to each material element of the offense.
(2) Kinds of Culpability Defined.
(a) Purposely.
A person acts purposely with respect to a material element of an offense when:
o if the element involves the nature of his conduct or a result thereof, it is his
conscious object to engage in conduct of that nature or to cause such a result; and
o if the element involves the attendant circumstances, he is aware of the existence
of such circumstances or he believes or hopes that they exist.
(b) Knowingly.
A person acts knowingly with respect to a material element of an offense when:
o if the element involves the nature of his conduct or the attendant circumstances,
he is aware that his conduct is of that nature or that such circumstances exist; and
o if the element involves a result of his conduct, he is aware that it is practically
certain that his conduct will cause such a result.
(c) Recklessly.
A person acts recklessly with respect to a material element of an offense when he
consciously disregards a substantial and unjustifiable risk that the material element exists
or will result from his conduct. The risk must be of such a nature and degree that,
considering the nature and purpose of the actor's conduct and the circumstances known to
him, its disregard involves a gross deviation from the standard of conduct that a lawabiding person would observe in the actor's situation.
(d) Negligently.
A person acts negligently with respect to a material element of an offense when he should
be aware of a substantial and unjustifiable risk that the material element exists or will
result from his conduct. The risk must be of such a nature and degree that the actor's
failure to perceive it, considering the nature and purpose of his conduct and the
circumstances known to him, involves a gross deviation from the standard of care that a
reasonable person would observe in the actor's situation.
(3) Culpability Required Unless Otherwise Provided. When the culpability sufficient to establish
a material element of an offense is not prescribed by law, such element is established if a person
acts purposely, knowingly or recklessly with respect thereto.
(4) Prescribed Culpability Requirement Applies to All Material Elements. When the law defining
an offense prescribes the kind of culpability that is sufficient for the commission of an offense,
without distinguishing among the material elements thereof, such provision shall apply to all the
material elements of the offense, unless a contrary purpose plainly appears.
(5) Substitutes for Negligence, Recklessness and Knowledge. When the law provides that
negligence suffices to establish an element of an offense, such element also is established if a
person acts purposely, knowingly or recklessly. When recklessness suffices to establish an
element, such element also is established if a person acts purposely or knowingly. When acting
knowingly suffices to establish an element, such element also is established if a person acts
(6) Requirement of Purpose Satisfied if Purpose Is Conditional. When a particular purpose is an
element of an offense, the element is established although such purpose is conditional, unless the
condition negatives the harm or evil sought to be prevented by the law defining the offense.
(7) Requirement of Knowledge Satisfied by Knowledge of High Probability. When knowledge
of the existence of a particular fact is an element of an offense, such knowledge is established if
a person is aware of a high probability of its existence, unless he actually believes that it does not
(8) Requirement of Wilfulness Satisfied by Acting Knowingly. A requirement that an offense be
committed wilfully is satisfied if a person acts knowingly with respect to the material elements
of the offense, unless a purpose to impose further requirements appears.
(9) Culpability as to Illegality of Conduct. Neither knowledge nor recklessness or negligence as
to whether conduct constitutes an offense or as to the existence, meaning or application of the
law determining the elements of an offense is an element of such offense, unless the definition of
the offense or the Code so provides.
(10) Culpability as Determinant of Grade of Offense. When the grade or degree of an offense
depends on whether the offense is committed purposely, knowingly, recklessly or negligently, its
grade or degree shall be the lowest for which the determinative kind of culpability is established
with respect to any material element of the offense.
We transfer the intent to cause one social harm to the same social harm.
It will be considered the exact same crime
The law Transfers the actor’s state of mind regarding the intended victim to the
unintended one. Some judges instruct juries in these “bad aim” cases that “the intent
follows the bullet.”
When does transferred intent not apply?
Where the intent is “used up”
o Example:
 Cole intends to shoot Alex and does shoot Alex but the bullet goes
through and also hits Amanda….The intent does not transfer.
Where defendant intends to commit one social harm and causes another social harm
o Work both ways.. doesn’t matter if the initially intended social harm was greater
or less than the social harm that actually occurred
o Example:
Cole intends to shoot a dog and instead, misses and hits a person. Intent
does not transfer to shooting person because the social harm committed
was different than the social harm intended.
Mistaken identity
o Simply because you don’t need to know the identity of someone in order to be
o Victim’s identity is not an element of the crime
Where the law requires the criminal intent be directed toward the actual victim
o If the law is written in such a way that the victim is specific
o Very rare, usually in contract (took wrong old man out to the cabin) or statutes
A person may not be convicted of an offense unless the prosecutor proves beyond a reasonable
doubt that the defendant, with the requisite mental state, performed a voluntary act that actually
and proximately caused the proscribed social harm.
IMPLICIT in this statement is an ADDITIONAL prerequisite to criminal liability: the
concurrence of the actus reus and the mens rea.
In order to be convicted there must be BOTH temporal concurrence and motivational
Temporal Concurrence
Occurs when the mens rea of an offence exists before or after, but not during, the commission of
the actus reus
Mens Rea Preceding Actus Reus
o EXAMPLE: D intends to kill V, plans the killing, but never has the opportunity to
implement the plan. Later she changes her mind, abandons the scheme, and
befriends V. Thereafter, D and V go hunting, during which time D innocently
(non-negligently) kills V.
 On these facts, D is not guilty of criminal homicide because she has no
culpable state of mind at the time of her act.
o Delay in harm
 The concurrence principle is satisfied if the mens rea and actus reus
concur, but the social harm later occurred.
 Year and a day rule:
o if the victim survived past a year and a day you cannot
convict the criminal
 Most jurisdictions have done away with this because it put families
in bad positions who would have to take love ones of life support
to get the bad guy
Actus Reus Preceding Mens Rea
o EXAMPLE: D takes V’s umbrella from a restaurant, thinking that it is his own.
Five minutes later, he realizes that is belongs to V, and decides to keep it. D has
not committed larceny, because at the time he committed the act (the taking), he
did not have the requisite mental intent (the intent to deprive another of his
Motivational Concurrence
The defendant’s conduct that caused the social harm must have been set into motion or impelled
by the thought process that constituted the mens rea
EXAMPLE: D intends to kill V. While driving to a store to buy a gun, D accidentally
runs over V, killing him. D is not guilty of murder, even though the intent to kill V
existed at the time the act (driving over V) took place. The act must be done for the actual
carrying out of the intent and not merely to prepare for its execution
Crimes that by definition, do not contain a mens rea requirement regarding one or more
elements of the actus reus
Do not expressly possess any mental-state element, all that must be proven is the actus
If congress does not specify mens rea we don’t assume it’s a strict liability action, we try
and find the mens rea first.
Two types of crime:
o Malum in se: (Non-public welfare offence)
 Crimes where the conduct is prohibited because it’s evil.
 Example: murder, robbery, rape, arson.
 Inherently wrong so they are prohibited because they are wrong
o Malum Prohibitum: (public welfare offence)
 Crimes that are wrong because we have prohibited them
 Example: speeding violations, drinking laws, etc.
Public Welfare Offenses Doctrine (most common exception to mens rea requirement)
o Courts frequently authorize strict criminal liability in the case of public welfare
o Courts will authorize and say this is a strict liability offence, not needing a mens
rea, if:
 It is not derived from common law
 It is a single violation that can injury many people
 If it is a standard/statute that is a reasonable law
 If the penalty is relatively minor for the crime
 If the conviction rarely damages reputation
We have moved from justifying Malum prohibitum crimes under strict liability, because
of the above facts, but why are we now allowing Malum in se crimes such a rape under
strict liability?
When arguing if something should be a strict liability crime look to:
o If punishment of the wrongdoer far outweighs regulation of the social order as a
purpose of the law in question, then mens rea is probably required.
o If the penalty is light, involving a relatively small fine and not including
imprisonment, then mens rea probably is not required.
Attendant circumstance
o Often, an offense will contain a mens rea requirement as to some, but not all,
elements of the crime.
 Usually knowledge (know this persons age, know this is stolen property)
o The element that does not require proof of culpability will be an attendant
o What makes statutory rape strict liability in character is the fact that the actor may
be convicted although he believed, even reasonably, that the underage female
with whom he had intercourse was old enough to consent to the act.
Criticisms of strict liability:
o Does not deter, since the actor is unaware of the facts that render his conduct
o It is unjust to condemn a person who is not morally culpable
Morisette vs. United States
the court applied the mens rea that made sense because the penalty would have been too
high for what he did. When congress means for an action to be strict liability they should
make it clear that it is in fact strict liability.
Staples vs. United States
the court said they were not going to presume strict liability, instead they read in a mens
rea because the penalty would have been too high.
State vs. Garnett
the court ruled that statutory rape is a non mens rea (or public welfare) offense and
therefore is a strict liability offense
Model Penal Code:
The drafters of the model penal code attempted to limit strict liability by requiring a mens rea for
all crimes. Although, they said that offenses regarded as “violations,” rather than “crimes”, do
not need a mens rea. “Violations” are offenses that do not result in imprisonment or probation,
but may result in fines.
o Common law approach
 General Intent Crimes- Culpability Approach
 any mental state that relates solely to the acts that constitutes the
o only one mens rea and it relates to the crime
 The mistake MUST be reasonable, unlike specific intent crimes
 Example:
o Rape with mistaken consent
 Moral Wrong Doctrine:
o One can make a reasonable mistake regarding an attendant
circumstance and yet demonstrate moral culpability worthy
of punishment
o There should be no exculpation for mistake where, if the
facts had been as the actor believed them to be, his conduct
would still be immoral.
 The intent to commit an act that is immoral
furnishes the requisite culpability for the related, but
unintended outcome
o Example:
 Man take a 16 year old away from her family to go
and marry her but she is actually 16
o CRITICS: The moral wrong doctrine permits the
conviction of a person who did not know and had no reason
to know that his conduct would violate the law. Who
determines what is moral?
 Legal Wrong Doctrine:
o Less extreme alternative to the Moral Wrong Doctrine.
 Replaces the word “immoral” with “illegal”
o Occurs when you are missing the mens rea for one crime
and the actus reus for another.
o If a person’s conduct causes the social harm prohibited by a
more serious offense, he is guilty of that offense even if,
based on his reasonable understanding of the attendant
circumstances, he would be guilty of less serious offense if
the situation were as he supposed
 CRITICS: The legal wrong doctrine permits
punishment based on the harm that an actor caused,
while ignoring the fact that the actor’s mens rea was
at the level of a lesser crime.
 Specific Intent Crimes- Elemental Approach
 A specific intent offense is one that contains, in its definition, a
special mental element above and beyond the mental state required
with respect to the actus reus of the crime.
 A specific intent crime typically expresses one of the following:
o Intention to commit a future act (intent to distribute)
o Special motive or purpose (intent to humiliate)
o Awareness of an attendant circumstance (receiving stolen
property with knowledge that its stolen)
 Example:
o Common law burglary: Breaking and entering of the
dwelling of another in the night with intent to commit a
felony therein.
 Actus Reus: Breaking and Entering
 Mens Rea: Intent to break and enter AND intent to
commit a felony inside
 The mistake does NOT need to be reasonable for specific intent
crimes, unlike general intent crimes
 Every “attempt” is a specific intent crime because an attempt at
anything will have an additional mens rea.
Model Penal Code:
 Does not make a distinction between general and specific crimes.
 They require a mens rea for every element of the crime.
 2.04 Ignorance or Mistake.
o Ignorance or mistake as to a matter of fact or law is a
defense if:
 1.The ignorance or mistake negates the purpose,
knowledge, belief, recklessness or negligence
required to establish a material element of the
offense; or
 2. The law provides that the state of mind
established by such ignorance or mistake constitutes
a defense.
o Generally ignorance of the law is not an excuse
o It follows that there typically is no mens rea element of an offense capable of
being negated by an actor’s ignorance or mistake of law.
o EXCEPTIONS: Mistake of law may be used as a defense when there is:
 Reasonable reliance on a person or public body with responsibility for
interpretation administration or enforcement of the law (court, attorney
 Can’t be reliance on yourself or your attorney
 Fair notice if there was no notice to you, if the law wasn’t published, you
have the defense. But once it is published we assume you know it
(exceptionally rare)
 Failure of proof where the law actually requires knowledge; there are
some statutes that are written in such a way such that knowledge of the
law is an element (rare)
The word homicide alone is not meant to have negative connotations. It’s supposed to be the
most general term related to killing another
CL definition: “killing of a human being by another human being.”
The killing of a human being by another human being with malice aforethought.
Born Alive Rule
o Early common law said a fetus must be “born alive” in order to be considered a
human being.
o This mostly had to deal with having proof of a living being.
o Under this rule, if you killed a pregnant woman you will only be charged with one
murder because the baby had not been born alive yet.
Goodbye Born Alive Rule
o The rule is essentially gone because now State’s look to their legislature to define
what a human being is and when life begins.
o It is a legislative function, not a judicial function.
Tradition Rule:
o Cardiopulmonary Rule:
 When your heart and respiration cease.
Majority Rule:
o Harvard medical school:
 “Brain death syndrome”- the cessation of brain function as a more reliable
measure of death.
 Basically, When all three irreversibly cease function
American reform of homicide began with Pennsylvania in 1794. They were the first to break it
down into 4 classifications:
o Willful, deliberate, and premeditated
 To the extent that these three elements are not treated as separate,
significant elements, the legislative line between first and second degree
murder is lost.
 Willful Although “willful” has various definitions in criminal law, here it
simply means “a specific intent to kill.”
 Deliberate-
Some jurisdiction view this word as synonymous with
“intentional” aka willful
 Others will group it with “premeditation” because it takes time to
“deliberate”. (this is where the argument for 2nd degree comes in)
 Premeditation “to think about beforehand”
 Some jurisdiction say this can happen in a blink of an eye
o “no time is too short for a wicked man to frame in his mind
the scheme of murder.”
o These courts blend all three terms, eliminating the
distinction between first and second degree.
 Other courts say there must at least be enough time for the killer to
give it a second thought.
o Statutorily Specified Manner
 Murders that are committed in a statutorily specified manner are
considered sufficiently morally heinous to merit the stiffest penalty.
 The original Pennsylvania statute, there were two such means: Assume
premeditation for:
 Killing by means of poison
 By lying in wait. (ambush)
o Felony- Murder
 When the actor is in the process, or in the course of, committing, or
attempting to commit a felony and a person dies.
 Only have to prove the actus reus and mens rea for the felony, not for the
 First degree felony murder is found if the individual was found
committing or attempting to commit one of the following felonies:
 Arson, rape, robbery or burglary
 **Look below for more detail
o Intentional but not Premeditated
 If it was “sudden heat of passion” check to see if it can be mitigated down
to Voluntary Manslaughter.
o Infliction of Grievous Bodily Injury
 “assault with intent to commit grievous bodily harm”
 Every state will have a statute for how they define “grievous bodily
 Therefore, a person who unjustifiably and inexcusably intends to cause
injuries of that level of severity is guilty of murder if the victim dies as a
o Extremely Reckless Killings (Depraved Heart Killings)
 A person is guilty of second degree murder if he acts with an extreme
indifference to the value of human life, and death results.
 The accused does not intend to kill her victim, but malice is implied
because the defendant’s conduct is so devoid of regard of the life of
another as to warrant the same criminal liability as that which the law
imposes upon a person who intentionally causes the death of another.
 A depraved heart homicide is one in which the actor’s conduct
manifested extreme recklessness, or risk taking that evinces an
extreme indifference to the value of one or more human lives.
o This may include an act, but also an omission, like failing,
out of indifference, to take a baby to the doctor when
 “Extreme recklessness” and “depraved heart” are factual matters
determined on the basis of the specific circumstances of each case
 Reckless disregard for the value of human life.
o Felony- Murder
 When the actor is in the process, or in the course of, committing, or
attempting to commit a felony and a person dies.
 Only have to prove the actus reus and the mens rea for the felony, not for
the death of the person.
 Second degree felony murder is charged when it is in regard to any felony
NOT enumerated under first degree felony murder.
 **look below for more detail.
 Most prosecutors will argue second- degree felony murder over
depraved heart killing because it saves them from having to prove
the defendants mens rea.
o Common Law Approach
 Under common law principles, an intentional homicide committed in
“sudden heat of passion” as the result of “adequate provocation” mitigates
the offence to voluntary manslaughter.
 State of Passion
 Extreme negative emotional reaction that an otherwise law abiding
person would not have committed
 The term “passion” is sufficiently broad to encompass a range of
emotions, including fear, jealousy, furious resentment, and wild
 Cooling Off
 Even if the person did have a sudden heat of passion, the defense is
unavailable if a reasonable person would have cooled off in the
time that elapsed between the provocation and the fatal act.
 Typically an issue left to the jury
 Causation
 The extreme negative reaction had to be what caused the individual
to do the violent act
 The target of your anger has to be the cause of the provocation
o Guy come home catches wife cheating. He couldn’t be
more upset, storms down stairs and as he’s walking outside
the mailman comes up and he shoots in and kills him…
Must be directed at the person who caused the
extreme emotional reaction.
 Under common law, the only valid forms of provocation are:
o Aggravated Assault and Battery
 Must be aggravated, not trivial
 Mere words are not enough.
o Mutual Combat
o Commission of a serious crime against a close relative
o Illegal Arrest
 Some jurisdictions now require the illegal arrest to
be done with excessive force.
o Observation of Spousal Adultery
 Must actually observe it and must be married
 Generally photos will never be enough because they
were not actually observing (with all 5 senses).
o Modern Approach
 Under the modern approach the four elements are still required, although
there are no fixed categories for provocation.
 Reasonable Person Standard
 Under the facts would a reasonable person have become provoked?
 Informational Words
 In a minority of jurisdictions informational words may be
considered adequately provoking.
 Words informing the listener of an incident that might have
provoked adequate provocation had it been observed.
o Example: Confession of Adultery
 Insulting words are still never enough.
o Except in an extreme minority of jurisdictions said they
would consider it.
o Model Penal Code
 The model penal code does away with these four elements and only
requires that the act be committed recklessly or under extreme emotional
 Much broader than CL approach
 It is cumulative and can happen over time
 Ex: a year ago his wife of 25 years left him, doesn’t see his kids,
loses his job, dog died
 The act does not necessarily have to be committed on the person who
provoked you
 You can kill the mailman after seeing wife cheating.
 210.03 Manslaughter: Criminal homicide constitutes manslaughter when:
 It is committed recklessly; or
 A homicide which would otherwise be murder is committed under
the influence of extreme mental or emotional disturbance for
which there is reasonable explanation or excuse. The
reasonableness of such explanation or excuse shall be determined
from the viewpoint of a person in the actor's situation under the
circumstances as he believes them to be
Manslaughter is a felony of the second degree.
o A “criminal negligence” involving a gross deviation from the standard of care that
reasonable people would exercise in the same situation.
o It is greater than the degree on negligence sufficient in tort law. Here it must be
“so gross as to be deserving of punishment.”
o One who is aware that she is taking a substantial and unjustifiable risk to human
life that constitutes malice aforethought; one who should be aware of the risk, but
it not, is negligent.
 Example:
 One who playfully fires a gun that she knows has bullets in it, in
the direction of another person, may be convicted of murder; if the
same person performs the same act incorrectly convinced that the
gun is unloaded, she is guilty of manslaughter.
o Misdemeanor-Manslaughter Doctrine
 An accidental homicide that occurs during the commission of an unlawful
act not amounting to a felony (at least not amounting to a felony that
would trigger the felony murder rule) constitutes common law involuntary
When the actor is in the process, or in the course of, committing, or attempting to commit a
felony and a person dies. Only have to prove the actus reus and the mens rea for the felony, not
for the death of the person.
Felony murder can either be first degree or second degree
If the underlying felony is arson, rape, robbery, and burglary then it is first degree felony
If the underlying felony is not one of the listed above then it constitutes second degree
felony murder.
We inherited this rule from England, but they have since abandoned it. France and Germany
never accepted it.
Policy and Justifications
o FOR: It is said that the purpose of FMR is not to deter the underlying felony;
rather it is to cause the criminal to be more careful when they commit felonies.
o AGAINST: There is no way to deter and unintended act. The act of the felony
may be intended but if the act of the murder was not, there is no way to deter that.
Reaffirming the sanctity of life
o FOR: The commission of a felony resulting in death is more serious and therefore
deserves a greater punishment that the commission of a felony NOT resulting in a
o AGAINST: A person who accidently kills someone should not be subject to the
same punishment as someone who intentionally murders.
Transferred Intent
o We transfer malice of the felony to the killing…  This is a misuse of the
transferred intent doctrine by courts. You cannot transfer the intent of one social
harm to a different social harm.
Easing the prosecutor’s burden
o FOR: the prosecutor does not have to prove any intent or mens rea but still can
convict the felon with the crime
o AGAINST: Not a justification this is an effect. The prosecutor will be able to
change someone with no intent to harm the individual.
Criticisms Summed Up
Punishment disproportionate to the mens rea
Punishment doesn't equate to the mental state!
Felony murder doesn't deter inherently dangerous crimes, its purpose is to encourage
people to be more careful when committing inherently dangerous felonies.
Limitations on Felony- Murder Rule
Inherently Dangerous Felony Limitation
o Felony murder rule applies if the underlying felony is inherently dangerous.
o In order to figure what constitutes what is inherently dangerous courts will use
two different approaches:
 Abstract Approach
 look at the statute itself and ask, can this felony be committed in a
way that is not dangerous
o If yes then it is NOT inherently dangerous and FMR does
NOT apply.
 Example:
o False imprisonment is not inherently dangerous when it is
statutorily defined as “imprisonment effected by violence,
menace, fraud, or deceit” because the offense can be
committed in a nonviolent way, such as by fraud or deceit.
 Facts-of- the- Case Test Look at the facts of the case and ask if this felony is committed in
an inherently dangerous way.. aka extremely dangerous.
o If yes then FMR applies
Independent Felony (or Merger) Limitation
o The underlying felony has to have an independent purpose separate from the
cause of the death otherwise it merges with the death.
o If it mergers the FMR rule cannot be used.
o Think of felony assault. If the rule were to apply then every time someone died
from an assault they would be charged with second degree murder and there
would be no voluntary manslaughter.
 The overall purpose of FMR is to have criminals commit the felonies more
 If you can’t convince someone to do the felony more carefully than
the felony will merge.
 Example: you can’t convince a criminal to assault someone more
carefully but you can convince them to rob someone more
 There is an independent basis when the criminal purposefully commits one
felony while the death can be deemed negligent/incidental.
o Most jurisdictions will say Burglary or Arson are so inherently different that they
will apply regardless of this rule.
 Think about breaking into someone’s home with the intent to commit a
felony (burglary) and but the intention crime is to kill the person inside…
 Same thing with arson.
o You can’t assault someone to death.
o Burge
Res Gestae
o “The thing done”
o The period in which the felony is being committed
o In order for FMR to operate, the homicide must occur “within the res gestae of the
felony” which includes components of time, distance and causation.
 Time and Distance
 A good amount of time has passed or they have put a good amount
of distance between them and the place the felony occurred.
 The time period begins when the actor has reached the point at
which she could be prosecuted for an attempt to commit the felony,
and it continues AT LEAST until all of the elements of the crime
are completed.
o Thus, the FMR does not apply if the felony came after the
o “one continuous transaction”
 The rule will apply while a felon flees the scene
until she reaches a place of temporary safety.
 Causation
 There must be a causal relationship between the felony and the
o Example:
 Plane illegally carrying drugs, flying at the tree line
to avoid detection and the plane crashes passenger
 There is causation.
Plane illegally carrying drugs, flying normally,
breaks and crashes and passenger dies.
 There is NO causation
Killing by a Non-felon
o Agency Approach (Majority)
 The felony murder rule does NOT apply if an adversary to the crime or
someone not acting on behalf of the felon personally commits the
homicidal act, rather than the felon.
 A person IS responsible for the acts of another person if they are acting
together, or the non-felon is an accomplice of the primary party.
 Policy:
 The killing cannot truly be within the res gestae of the offence,
since the killing was not in furtherance of the crime, but in
resistance to it.
 There is little or no deterrent effect when the shooter is a nonfelon, since the felon has no control over the actions of the
innocent person.
 Example:
 F1 and F2 enter a liquor store in order to rob it. F1 points a gun at
X, a store employee and threatens to kill her unless she hands over
the money. F1 fires warning shots over X’s head. In response, X
justifiably fires a weapon at F1 to prevent the robbery and in selfdefense. Two people, F1 and V, a customer in the store, are struck
and killed by the bullets from X’s weapon.
o So F2 may NOT be convicted of felony murder for the
deaths of F1 and V because the killing was at the hands of
the non-felon, X.
o Proximate Cause Approach (minority)
 A felon is liable for any death that is the proximate result of the felony,
even if the shooter is not one of the felons.
 Policy:
 A felon’s attempt to commit a felony sets in motion a chain of
events which were or should have been within his contemplation
when the motion was initiated and he should be held responsible
for any death which resulted.
 Example:
 F1 and F2 enter a liquor store in order to rob it. F1 points a gun at
X, threatens her life and fires warning shots. This conduct could be
viewed as the proximate cause of X’s reasonable and foreseeable
response (firing a weapon back). Two people, F1 and V, a
customer in the store, are struck and killed by the bullets from X’s
o Therefore, F2 COULD BE convicted of the death of F1 and
V because he was the actual and proximate cause of their
death. The death would not have occurred BUT FOR the
commission of the felony and it is foreseeable the death
could have occurred.
There is a Limited Version to this theory which says that if the person who
is killed is a co-felon, then it is a justifiable killing and therefore no FMR
 Policy: If a felon was convicted for a justified killing (killing a
criminal), it would be as if he was being punished for doing
something good.
 Example:
o If in the above example the F2 could only be convicted of
the death of V and not F1 because F1 was a co- felon.
*** is if first degree or second degree?
If second degree, is it involuntary or second degree?
If it’s second degree, can it be mitigated down to voluntary?
Failure of Proof Defense
The prosecution has to prove each essential element of the charge beyond a reasonable
doubt; if they fail to meet that burden on any essential element then you can assert a
failure of proof defense (aka a failure on the part of the prosecution)
Justification Defenses
Encourage people to conduct behavior that may otherwise be criminal
o Prime example is self-defense
Focuses on behavior
Excuse Defenses
Your behavior is not condoned, but the circumstances make us unwilling to call you a
criminal and unwilling to call your act a crime
o Prime example- insanity
Focuses on actor
Specialized Defenses
Legal impossibility, abandonment (part of a conspiracy and you abandon that
conspiracy), Wharton’s rule
Extrinsic Defenses
Statute of Limitations, diplomatic immunity, incompetency to stand trial
A justification defense is one that defines conducts “otherwise criminal, which under the
circumstances is socially acceptable and which deserves neither criminal liability nor
even censure.”
Justified conduct is “a good thing, or the right or sensible thing, or a permissible thing to
do.” That is a justified act is one that is right, at least, not wrong.
The Structure for Justification
o A triggering condition permits a necessary and proportional response
 Trigger condition
 Necessary Response
 Proportional Response
Underlying Theories
o Public Benefit
 Conduct is not justified unless it was performed in the public’s interest,
and in most cases, was limited to the actions of public officers
 Although this is no longer a dominate theory.
 Ex: defense of others- there is a public benefit that people can not only
protect themselves but can help others as well
o Moral Forfeiture (no waiver)
 Focuses on the aggressor
 The person is committing the crime has forfeited their right to live.
 In such circumstances, society may determine unilaterally that it will no
longer recognize the wrongdoer’s interest in her life.
o Moral Rights
 Focuses on the actor (the innocent defendant)
 This is looking at the other spectrum of the moral forfeiture theory.
 Whereas the forfeiture works in a negative way to deny that there is a
socially protected interest harmed when the wrongdoer is injured or killed,
the moral rights theory works in a positive sense to provide the actor with
an affirmative right to protect her threatened moral interest.
o Superior Interests (lesser harm)
 The interest of the parties, and, more broadly, the value that they seek to
enforce, are balanced.
 In each case there is a superior, or at least a non-inferior, interest.
 As long as the interest is pursued the conduct is justified.
 Ex: License suspense and you have a very sick child that needs to be
rushed to the hospital. You choose to drive and get in all sorts of trouble
 You would be acquitted of all of this because of the necessity
An excuse defense “is in the nature of a claim that although the actor has harmed society,
he should not be blamed or punished for causing that harm.”
A defendant who asserts an excuse defense claims, “in essence, “I admit, or you have
proved beyond a reasonable doubt, that I did something that I should not have done, but I
still should not be held criminally accountable for my actions.”
Underlying Theories
o Deterrence
 This theory says that excuse defenses are proper because under the
utilitarian approach because you cannot deter an insane person.
 Although, this argument has been rightly denounced, the threat of
punishment may not deter a person who is suffering from a mental illness
or is acting under duress, but its infliction may deter misconduct by
“normal” persons who might otherwise believe that they could
o Causation Theory
 A person should not be blamed for her conduct if it was caused by factors
outside of her control.
 On the other hand, she is to blame and punishable if her criminal conduct
was caused by self- induced intoxication or by any other factors for which
she is responsible.
 Although, this theory does not accurately describe modern excuse
defenses because it leaves too much open for defense. AKA hard to draw
the line.
o Character Theory
 Punishment should be proportional to a wrongdoer’s moral desert, and that
desert should be measured by the actor’s character.
 This theory conforms with our moral intuitions.
 Example:
 Woman robs a bank. We would assume she is a bad person and
should be held morally culpable. But if you later find out terrorists
forced her too, then her acts would be considered “out of
character.” Looking to the circumstances of the crime, she would
be excused of her actions.
 This is not a person who is deserving of punishment. They are not
deserving of their punishment based on their circumstances.
o “Free choice” (or Personhood) Theory
 They did not act of their own free will
 A person may properly be blamed for her conduct if and only if she had
the capacity and fair opportunity to function in a uniquely human way,
freely to choose whether to violate the moral norms of society.
 Free choice exists if, at the time of the wrongful conduct, the actor
has the substantial capacity and fair opportunity to
o Understand the facts relating to her conduct
o Appreciate that her conduct violates society’s morals and
o Conform her conduct to the dictates of the law.
 A person lacking the substantial capacity in any of these regards
essentially suffers from some serious internal disability and
therefore does not deserve to be punished because she is not a
moral agent
o CRITICS: Say this theory is too narrow because free choice
is only defined in terms of the actor’s capacity at the
moment of the criminal act
A defendant is entitled to be acquitted on the basis of self- defense if her mistake of fact
regarding the threat was reasonable. However, she will be convicted of some form of
homicide if her mistake was unreasonable.
More specifically, note that this defendant is justified- not excused- in using deadly force.
Example: D intentionally kills V. At trial, D claims she killed V because she (mistakenly)
believed V was about to kill her.
o We don’t encourage people to make mistakes but if you do than we can try to
understand and justify it.
Historically these were different in that:
o Justified actor was acquitted of the offense
o An excused actor was subject to the same punishment as a convicted offender (the
death penalty and forfeiture of property), although he could escape the death
sentence with a pardon from the crown.
Today, justified and excuse actors are treated the same by the criminal courts (except
with duress)
o Each is acquitted of the offense and neither is punished for her conduct.
o As a result, may legislatures, courts, and commentators have been inattentive to
the difference between the two classes of defenses, even to the point of using
them interchangeably
o Sending a clear moral message
 Criminal law need to send the moral message as to what is intended
 People should take justifiable, rather than wrongful-but- excusable, paths.
If the law does not label the paths clearly, the system has failed to provide
adequate guidance.
 If the justification/excuse distinction is ignored or misapplied, the law may
inadvertently express a moral falsity.
 As to the whether the action is condoned and encouraged or just excused
o Provides a theoretical consistency
 Appreciation of the justification/excuse distinction can help lawmakers
coherently define criminal defenses.
 The law is not well served when a defense is composed of a set of
inconsistent- perhaps contradictory- principles.
o Accomplice Liability
Justification defense CANNOT have accomplice liability
Excuse defenses can have accomplice liability
 Mentally ill person thinks the only way to please god is to kill their
next-door neighbor. They obtain an accomplice to help. The actor
who is mentally ill is charged with first degree and the accomplice
is also charged.
 If the actor is excused that does not mean that the accomplice who
is not mentally ill should be excused.
 When it comes to self-defense/ self-defense of others--- the accomplice
will be excused as well if no distinction is made.
o Third Party Conduct
 Justifications are universalized, whereas excuses are individualized.
 If D is justified in preforming act A to protect her own rights, a third
person, X, is also justified in doing so to protect D. An excuse, however,
may only be invoked by the individual who suffers from the excusing
o Retroactivity
 Retroactivity principles are based on justifiable reliance.
 Justified You had a right to rely on that. We can’t change the law after you
already relied and we encouraged you to do the action
 Excuse Any person who investigates excuse law and relies on it before
she acts, however is not the type of person to whom the excuses
are meant to apply.
o Burden of Proof
 In justification defenses the burden of proof for the defense will usually go
to the prosecutor because no justified conduct is conduct the has been
accepted by society.
 In contrast, with excused conduct, all of the elements of the crime have
been proven and it has been determined that the conduct was unjustifiable.
 Under these circumstances, it is fair to expect the defendant to
persuade the jury that she is not to blame for her wrongful conduct.
 Basically, there was no wrongful conduct if it was justified so they should
not bear the burden of proof, unlike excused conduct, where there was a
wrongful act and it is fair that they should bear the burden of proof.
General Rule:
o A person is justified in using deadly force against another if he is not the
aggressor and he reasonably believes such force is necessary to repel the
imminent use of unlawful deadly force by the other person.
Side note: there is no constitutional right to self- defense… at least it has
never been determined that there is, but if it was taken away it likely be
find to violate the Constitution.
Elements of Defense
o Self- defense, as with other justification defenses, contains: (1) a necessity
component; (2) a proportionality requirement; and (3) a reasonable- belief rule
that overlays the defense
 The Necessity Component
 Provides that force should not be used against another person
unless, and only to the extent that, it is necessary.
 MAJORITY says that necessity of self- defense requires that the
social harm be imminent.
o Example:
 A man shoved Kim and the Cole chased him down
and beat him. Defense of others could not be used
because the social harm was over and Kim was not
under current attack. There was no imminent threat.
 The Proportionality Component
 A person is not justified in using force that is excessive in relation
to the harm threatened.
 Basically, deadly force can only be used for self-defense if the
threat also includes deadly force.
 The “Reasonable Belief” Component
 A self- defense claim contains a subjective AND an objective
component. MUST HAVE BOTH
 Subjective:
o The jury must determine that the defendant subjectively
believed that he needed to use deadly force to repel an
imminent unlawful attack.
 Objective:
o The defendant’s belief in this regard, must be one that a
reasonable person in the same situation would have posed.
o This leaves the defense open even if appearances prove to
be false and there actually wasn’t a threat.
Deadly Force
o Is force “likely” or “reasonably expected” to “cause” death or “intend to cause”
death or serious bodily injury.
o Don’t focus on whether someone died, focus on whether it was likely or intended
to happen
Unlawful Force
o A person may not defend himself against the imposition of lawful, i.e., justified,
 Example:
 a robber could never calm self-defense from the person he was
a citizen may not use deadly force to resist an officer’s proper use
of force against him.
o Conduct that would constitute a crime or a tort is “unlawful,” even if the actor
could escape conviction or liability by assertion of an excuse defense.
 Example:
 If V, an insane person or an infant, uses unjustifiable force upon
another. This constitutes “unlawful force,” notwithstanding V’s
potential excuse claim.
o Although there is no universally accepted definition of the term “aggressor” one
court has defined it as an “affirmative unlawful act reasonably calculated to
produce an affray foreboding injurious or fatal consequences”.  Patterson case
 No matter how provocative, a lawful act can never constitute an aggressor
 In order to be an aggressor, you DO NOT have to throw the first punish.
 You can threaten a person in a way that’s unlawful that is not
physical. Ex. Assault
 You don’t have to wait to be hit or shot first in order to raise self- defense.
 If you cause someone to be in apprehension of immediate conduct… that’s
a crime (assault. Duh)
 Some jurisdictions call it menacing.
Removing the Status of Aggressor
o The initial aggressor in a conflict may purge himself of that status and regain the
right of self- defense.
o The issue always is: Who was the aggressor at the time the defensive force was
o Therefore, the distinction between non- deadly aggressor and deadly aggressor is
o Non-deadly aggressors
 A, a non-deadly aggressor, threatens B with non-deadly force. B responds
by threatening A with deadly force. Does A lose the status of aggressor?
o The initial aggressor automatically and immediately loses
the status of aggressor
 MINORITYo Only if A retreats, if safe retreat is possible
o Deadly aggressor
 A person who acts reasonably calculated to produce fatal consequences.
 The only way such a person may regain the right of self- defense is by
withdrawing in good faith from the conflict and fairly communicating this
fact, expressly or impliedly, to his intended victim.
 A pulls a knife on B. B responds by pulling a gun. Can A regain the status
of non-aggressor and defend himself?
o Yes, but only if A abandons her deadly design and
communicates this fact to B.
Proportionality of force- deadly against non- deadly
o Deadly force may never be used in response to non- deadly force even if this is
the only way to repel the non-deadly attack.
 Although if a non- deadly force can be used to adequately repel the deadly
o A person may not use deadly force in self- defense unless the aggressor’s
threatened force will occur immediately- almost at that instant.
o A person may not use deadly force to repel an unlawful deadly attack if a more
moderate (non- deadly) force will do the job.
Necessity requirement and the issue of retreat
o Self- defense is measured against necessity.
o If an innocent person is attacked and if he has only two realistic options- use
deadly force or retreat to a place of safety- must he chose retreat?
o In other words, is deadly force really “necessary” if retreat is an option?
 A non-aggressor is permitted to use deadly force to repel an unlawful
deadly attack, even if he is aware of a place to which he can retreat in
complete safety.
 The Florida statute provides in pertinent part:
 A person who is not engaged in an unlawful activity and who is
attacked in any … place where he has a right to be has no duty to
retreat and has the right to stand his or her ground and meet force
with force, including deadly force if he or she reasonably believes
it is necessary to prevent death or great bodily harm to himself or
another or to prevent the commission of a forcible felony.
 Why no require retreat?
 The law should not denounce conduct as criminal when it accords
with the behavior of reasonable men… The manly thing is to hold
one’s ground, and hence society should not demand when smacks
of cowardice.” State v. Abbott
o AKA retreat is not the American thing to do
 “right” should never give way to “wrong”
 Retreat emboldens criminal while no-retreat sends a positive,
utilitarian message to criminals that they threaten innocent person
at their own risk.
o THE RETREAT RULE: Minority (only for the use of deadly force)
 A significant minority of jurisdictions provide that an innocent person
threatened by deadly force must retreat rather than use deadly force if he is
aware that he can do so incomplete safety
 The duty of retreat is NOT triggered UNLESS there is a place of
COMPLETE safety to which the non-aggressor can turn.
 They also must be subjectively aware of this the place of complete
safety’s existence.
 Why retreat?
All human life, even that of the aggressor, should be preserved if
possible (sanctity of human life)
 Human life is more valuable than an individual’s pride
 The practical effect of this condition is that a person under attack
rarely is compelled to retreat, especially when the aggressor is
armed with a gun.
 A universally recognized exception that provides that a non-aggressor is
not required to retreat from his dwelling, even though he knows he can do
so in complete safety, before using deadly force in self-defense.
 The reasoning is that person’s home is his castle- his final sanctuary from
external attack.
 Co-dweller:
 Many retreat jurisdictions in recent years have grown more
sensitive to the problem of domestic violence and have adopted the
rule that the assailant’s status as a co- dweller is irrelevant, i.e., the
innocent person need not retreat from the home, even if the
aggressor also lives there
 The contrary position is that, the castle doctrine is more so focused
on defense of habitation rather than home a sanctuary defense.
 In some jurisdictions not only does it include your home but also….your
curtilage (your immediate surrounding area)
 Others have an even more expansive view and have extended it to a
person’s office or car (especially if you live in it)
 Hotel room counts as well (temporary dwelling)
 Camp site… is that your castle?
o Yes, it is…. in some jurisdiction
 Homeless and live in a box?
o Yup, it’s your temp dwelling... In some jurisdictions
 Sometimes even as a guest in another person’s home… still could
be considered your temp dwelling.
o In general, the self- defense claim is a full defense, resulting in exoneration of the
persons acting in self- protection.
o Various states not recognize and “imperfect” or “incomplete” defense of selfdefense to murder which results in conviction for manslaughter.
o Two versions on imperfect self- defense
 First, a nondeadly aggressor who is the victim of a deadly response must
retreat to any known place of complete safety before using deadly force; if
he fails to do so, his right of self- defense is considered imperfect.
 Second, one who kills another because he unreasonably believes that
factual circumstances justify the killing, is guilty of manslaughter, rather
than murder.
This is a justification defense because it is a form of self-defense.
o We are not saying she is insane and thereby making an excuse for here.
You do not have to be married
Three Categories
o Confrontational Homicides
 This is the most common
 Usually happens when a battered woman kills her partner in a battering
 Every jury with give instruction of self-defense here
o Non- Confrontational homicides
 The homicide occurs while the victim is sleeping or during a significant
lull in violence
 This often causes a problem with the imminent threat requirement
 Which in turn creates the question of whether the woman should
be able to provide evidence of prior abuse to prove the “reasonable
belief” of her actions were necessary
 Vast majority give jury instruction of self- defense if there is expert
testimony to essentially explain that this should be considered
 Although a majority will exclude instances where the victim is
sleeping or incapacitated
o Importuned (Killing for hire)
 Doesn’t have to be for money, really just a killing by a third person
 Example: children killing father because mother asked to
 No jurisdiction allows this as a defense
Jury instructions on self-defense
o Absent the battered woman’s syndrome, self-defense instruction should only be
given in confrontational cases.
Evidentiary issues
o Prior abuse by the accuser is admissible here
 Normally courts will not allow a defendant to put the decedents character
on trial because it takes the jury’s attention away from the specific
incident that lead to the homicide
 ALTHOUGH, in cases of BWS, the prior beatings are admissible
evidence to prove self-defense of the defendant
 A decedent’s prior aggressive and violent behavior is relevant show that
the actor reasonably feared deadly force at the decedent’s hands.
o Expert testimony regarding BWS
 Enhance the defendant’s credibility (i.e. “learned helplessness”)
 This is why she says in the relationship rather than leave
 Explain in non-confrontational cases why the defendant subjectively
believed she was in danger and why this belief was objectively reasonable
 Courts are split on whether expert testimony should be allowed in to
testify as to whether the women is suffering from the condition.
What it really amounts to is that she knows more than we do. It’s not
diminished capacity, if anything its enhanced capacity because she knows
the victim best
A person is justified in using force to protect a third party from unlawful use of force by
an aggressor. The intervener may use force when and to the extent the third party would
apparently be justified in using force to protect herself.
o Limitations
 The defense was originally only if the third party was somehow related to
the intervenor but that is rarely enforced today.
Common law/alter ego rule: (is MINORITY now)
o A person may only use force to defend a third party if the person being defended
would IN FACT have been justified in using the same degree of force in selfdefense.
o Mistake of fact does not work here because…..?
The modern MAJORITY, largely influences by MPC 3.05
o An intervenor may use force to the extent that such force reasonably appears to
the intervenor to be justified in defense of the third party.
Ultimately, we need to know that
o Defense of others is the same as self defense
o Alter ago was old rule
o New rule is on the basis of reasonable belief (“reasonable belief” standard)
 The is the rational belief of the intervenor.
Defending the house hold
Three approaches to regarding the use of deadly force for defense of habitation
Early common law rule:
o A home dweller may use deadly force upon another person if he/ she reasonably
believes such force is necessary to prevent an imminent and unlawful entry of
his/her dwelling
o Example:
 Drunk Phil is banging on your door because he thinks it’s his house.
You’re not afraid of Phil but he forces his way in. You do not have the
physical ability to stop him unless you shoot him.
 Under common law rule YOU CAN shoot drunk Phil to prevent
entry... it was all about defending the threshold
o DOH is much more liberal and goes beyond self- defense
o Once they are in the house it’s too late. The rule only relates to preventing entry…
once the threshold is breached you would have needed some other defense
“Middle” approach
o You can’t shoot drunk Phil
o A person may use deadly force if he/she reasonable believes:
 (1) the other person intends an unlawful and Imminent entry of the
 (2) the intruder intends to injure him/her or another occupant, OR to
commit a felony therein; and
 (3) deadly force is necessary to repel the intrusion.
o Still different from self-defense on immense
 It’s the NOT the immense of deadly force, it is the immense of intrusion.
 Therefore, you can shoot earlier than you could for self-defense.
o The problem is it doesn’t say violent felony… only specifies felony?????
o Yet again.. burglary is the problem ????????
“Narrow” Approach (MAJORITY)
o A person is justified in using deadly force upon another if he/she reasonably
 (1) the other person intends an unlawful and imminent entry of the
 (2) the intruder intends to commit a forcible felony therein; and
 (3) such force is necessary to prevent the intrusion.
o A “forcible” felony is one “committed by forcible means, violence, and surprise,
such as murder robbery, burglary, rape or arson.
The “narrow” approach is deferent from the “middle” approach because
o here you cannot use the defense if the occupant knows or should know that the
intruder only intends to commit a minor battery.
o && the occupant may not use deadly force if he knows or should know that the
intruder’s purpose if to commit a nonforcible felony
o Although, the differences are really more theoretical than legal. The “narrow”
approach will often be met even if the entry is nonviolent because the right to use
the habitation defense is triggered before the intruder’s entrance to the dwelling
and, therefore, often before the occupant is able to determine the intruder’s
 Burglary is in both the middle and narrow approach and that is one they
are practically the same?
May the occupant use force after the intruder has entered?
o MAJORITY- Yes, with the narrow approach the defense is still applicable even
after the intruder breaks the threshold.
o MINORITY- No, the defense of habituation is not applicable once the intruder is
in the home.
The Habitation defense is broader than self- defense
o In the common law and middle approach, the habitation defense permits use of
force disproportionate to the physical harm threatened, unlike self- defense.
o Self- defense is not triggered until physical harm of the dweller is imminent.
Defense of habitation begins when entry becomes imminent, which may be well
before the dweller’s physical well- being is in imminent jeopardy.
o Defense of habitation is an accelerated from of self-defense
 Defense of habitation does not extend as far as the Castle Doctrine does
Ex: Your car would not be considered your dwelling for the
habitation defense but it may be applicable for the Castle Doctrine
o At COMMON LAW a mechanical device may be used “where the intrusion is, IN
FACT, such that the person, were he present, would be justified in taking the life
or inflicting the bodily harm with his own hands.”
o One who deliberately places a spring gun on his property acts at his own peril. His
right to use force by this means is based on reality – NOT reasonable
o EX:
 Kids breaking in the guy’s garage to steal tools and shot in face by spring
 An increasing number of states now support the proposition that a resident
my not justifiably use a mechanical device designed to kill or seriously
injure an intruder, EVEN IF he would be permitted to use deadly force in
A person is never justified in using deadly force to protect her real or personal property
A person is justified in using non-deadly force to prevent the imminent, unlawful
dispossession of the property
Once dispossessed, a person cannot use force to reclaim property.
o Basically, once it is taken away from you, you cannot use force to get it back.
o ONE exception:
 Fresh pursuit
 This is because it is what a reasonable person would do and we
don’t punish for that
Necessity for the Use of Force
o A person may use no more force than reasonably appears necessary to defend his
possessory interest in the property.
o Nondeadly force should not be used if one can seek assistance by law
enforcement agents already on the scene
Is the Threat of Deadly Force Allowed?
o The threat of deadly force is less harmful than actual non-deadly force
o a MAJORITY will not because they believe it could escalate the situation
 a person may not threaten to do that which he is not permitted to so in fact.
o a MINORITY of jurisdictions will allow the threat
Defense of property is about lawful possession- NOT TITLE?????
o If they have a claim of right and they are lawfully disposing you… you can’t
resist them.
Claim of Right
o A person may assert a “claim of right” to possession of property and, therefore,
seek to dispossess another person of the disputed property.
o In these circumstances, if the person being dispossessed knows, believes, or as a
reasonable person should believe, that the disposer has a legitimate “claim of
right” to possession of the property in question, then the act is lawful and the
person in actual possession at the time may NOT assert defense of property.
NECESSITY (choice of evils)
This is a justification defense!!!
No one is culpable with necessity!!!
A person is justified is violating a criminal law if the following 6 conditions are met.
o The actor must be faced with a clear and imminent danger
o The actor must reasonably believe his actions will abate the threatened harm that
he seeks to avoid
 There must be a direct causal relationship between his actions and the
harm to be averted
o There must be no effective legal alternative
o The harm the actor will cause by violating the law must be less serious than the
harm that he seeks to avoid. (the is kind of the heart and soul of necessity)
 The harm should be measured by what was reasonably foreseeable at the
time and not the harm that actually occurred
 The issue is not whether the actor believes he made the right choice, but
whether he was actually correct as determined by the trier of fact.
o Lawmakers must not have previously anticipated the choice of evils and decided
in a way that conflicts with the actor’s choice.
 Example: A sick individual cannot smoke weed. It’s still illegal even if it
does help.
o The actor must not have substantially contributed to the emergency or wrongfully
placed himself in a situation in which he would be forced to engage in criminal
Three limitation that apply even if the above elements are satisfied
o Some states limit the defense of emergencies created by natural (as distinguished
from human) forces
o The necessity defense may NOT apply in homicide cases!
o In states that limit the defense to protection of persons and property, a person may
not act, for example, to protect reputation or economic interest, no matter what the
Civil disobedience
o May be defined as a nonviolent act, publicly performed and deliberately unlawful,
that has as its purpose to protest a law, government policy, or actions of private
body whose conduct has serious public consequences.
o Civil disobedience cases CANNOT use the defense of necessity because there are
many other legal options. Schoon case.. (IRS thing pg. 595)
DURESS (Coercion)
This is an EXCUSE defense… “Break this law or I’m going to kill you”
You are NOT comparing relative harms with duress… if you try to balance anything Cole
will know that you don’t know what the hell you’re talking about.
A person will be acquitted of any offense except murder if the criminal act was
committed under the following circumstances:
o Another person threatened to kill or seriously injury the actor or a third party,
particularly a near relative, unless she committed the offense.
 Must be a human being
 Must be threatened with deadly force
o The actor reasonably believed the threat was genuine
o The threat must have been “present, imminent, AND impending”
 The threat of future harm is insufficient
 The harm must be likely to occur so quickly that there is no realistic way
for the actor to escape.
o No reasonable escape from the threat except compliance
o The actor was not at fault in exposing herself to the threat
 Use a foreseeability standard to measure this…
o the major difference between duress and necessity is that the former negates the
existence of requisite mens rea for the crime in question, whereas under the latter
theory there is no actus reus.”
o Necessity will allow natural threats like fire and tornados, whereas duress only
involves human threats
o This gets blurred when someone is threatened in prison and their only option is
escape? Is this necessity? Is this duress?  but for out purposes Cole said we are
going to keep the lines clear.
Most jurisdictions do not allow the duress defense in homicide cases.
o A few states recognize it as an imperfect defense.
o Felony murder poses an exception though
 You are charged with felony murder that occurred during the commission
of a robbery. You are found not responsible for the robbery because it
was committed under duress. Jurisdictions are split on whether that results
in not guilty for felony murder since you were found not guilty of the
underlying felony.
Focus on mens rea: duress results in diminished mens rea and without that mens rea,
there is no crime. That is why duress is an excuse defense to relieve culpability for a
With duress, someone is always to blame, but with necessity, that is not necessarily true.
Model Penal code doesn't say that the threat has to be death or serious bodily injury.
o Also, doesn't have the imminence requirement
o Does not exclude murder prosecutions.
o Intolerable prison conditions: you have to turn yourself back in after escaping
prison because of intolerable conditions.
Is a legal term, not a mental health term.
Does not focus on the mental state of the person when they committed the crime, but
rather the mental state of the person at the time of trial proceedings.
This does not only apply in murder, it can apply in any case.
o A person may not be tried, convicted, or sentences if, during the proceedings, she
 The capacity to consult with her attorney with a reasonable degree of
rational understanding; or
 A rational understanding of the proceedings
 This is because if there is no rational understanding than the
punishment cannot be justified under the utilitarian or retribution
standards of punishment
Procedures to Determining Competence
o Competency may be raised by prosecutor, defendant, or the court
o Issue of law to be determined by the judge.
o Defendant is required to submit to a psychiatric evaluation
 If the findings are not in dispute, the court may act on the report
 If the findings are in dispute- hearing
o Who has the burden of proof?
 Some states say the government has to prove competency
 Some states say defendant has to prove incompetence
 Some states say a party raising the claim has the burden
o Effect of a finding of incompetency
 Criminal proceedings suspended
 Defendant usually committed to a mental institution
 Defendant cannot be held in a mental institution “more than that
reasonable period of time necessary to determine whether there is a
substantial probability that she will attain capacity in the foreseeable
 Has nothing to do with the sentence because it is not a punishment
 Does not have to be “near future” only “foreseeable future”
Procedural issues
o Most states and the federal government require a defendant to provide the
prosecutor with notice prior to trial (plea of NGRI-not guilty by reason of
o In most jurisdictions, the court has authority to have the accuse committed for 60
to 90 days for a psychiatric evaluation
o It’s common to prohibit introduction of defendant’s statements to the psychiatrist
or psychologists other than those relating to the psychiatric evaluation (right
against self-incrimination)
Jury Verdicts
o In most states, the fact finder may return one of three verdicts in a criminal trial
in which the defendant pleads insanity:
 NG: not guilty
 Guilty
 NGRI: Not guilty by reason of insanity
o A verdict of NGRI implies that the prosecution proved all of the elements of the
crime, including the defendant’s mens rea, beyond a reasonable doubt, and that
all the defendant’s non-insanity defenses were rejected, but that the accused was
insane at the time of the crime.
Bifurcated Trial
o Few states require and most states permit bifurcation
o This is where all aspects of the case except the defendant’s sanity are litigated at
the first phase of the trial.
o At the completion of the first phase, the fact finder deliberates and returns a
verdict of guilty or not guilty
o If the verdict is not guilty, the defendant is acquitted and the trial is over
o If the defendant is found guilty, the second phase is conducted on the sole issue
of the defense of insanity.
The Five Definitions of Insanity --- (know which one are cognitive only and which once
are cognitive and volitional)
M’Naghten Test
o Cognitive based- there is NO volitional component
o A person is insane if, at the time of his act, he was laboring under such a defect of
reason, arising from a disease of the mind, that he: (1) did not know the nature
and quality of the act he was doing; or (2) if he did know it, he did not know that
what he was doing was wrong, i.e. the accused at the time of doing the act did not
know the difference between right and wrong.
The Irresistible Impulse Test
o Identical to the M’Naghten Test but adds a volitional component to the end.
o A person is insane if, at the time of his act, he was laboring under such a defect of
reason, arising from a disease of the mind, that he: (1) did not know the nature
and quality of the act he was doing; or (2) if he did know it, he did not know that
what he was doing was wrong, i.e. the accused at the time of doing the act did not
know the difference between right and wrong; or
 ^^^ identical to test above…. Then added the volitional component below
o (3) he acted from an irresistible and uncontrollable impulse; or (3) he lost the
power to choose between right and wrong, and to avoid doing the act in question
as that his free agency was at the time destroyed; or (3) the defendant’s will has
been otherwise than voluntarily so completely destroyed that his actions are not
subject to it, but are beyond his control.
The America Law Institute (MPC Test)  MAJORITY NOW
o This is a revised version of the first two and therefore contains a cognitive and
volitional component
o A person is not responsible for criminal conduct if at the time of such conduct as a
result of mental disease or defect he lacks substantial capacity either to appreciate
the criminality [wrongfulness] of his conduct or to conform his conduct to the
requirements of law.
 If you adopt the MPC you are supposed to choose whether to use
criminality or wrongfulness
The Product (Durham) Test  this is completely abolished now
o Completely abolished
o Attempted to stay away from cognitive/volitional standards but failed horribly
o A person is excused if his unlawful act was the product of a mental disease or
 This is way to extreme… If your mental illness had anything to do with
the crime then you could be considered legally insane
The Federal Test
o Cognitive only test that practically makes the insanity defense impossible
o (Part of The Insanity Defense Reform Act of 1984)
o It is an affirmative defense to a prosecution under any Federal statute that, at the
time of the commission of the acts constituting the offense, the defendant, as a
result of a severe mental disease or defect, was unable to appreciate the nature and
quality or the wrongfulness of his acts. The defendant has the burden of proving
the defense of insanity by clear and convincing evidence.
 Basically, says that now the Defendant has the burden of proof when
claiming insanity as an affirmative defense
 For all relevant purposes this abolishes the insanity defense, makes it
nearly impossible
o This is a cognition only test
 You have to be unable to appreciate the nature
Inchoate means imperfect or incomplete
Attempt, Conspiracy, Solicitation
Six- stage Process of a Crime:
o (1) Conceive the idea
o (2) Evaluate the idea in order to determine whether she should proceed
o (3) Fully form the intent
o (4) Prepare to commit the crime
o (5) Commences commission of the offense---(this is where attempt begins to
o (6) Complete action and attain criminal goal
These stages could happen in just a couple seconds or over a very long time
The Anglo- American law does not punish a person during the first three stages of the
process because there is no actus reus and people cannot be punished on the thought
Only after the third stage does the mens rea form.
Activity during stages 4 and 5 are “inchoate”
Two Varieties of attempt
o Complete but “imperfect”
 occurs when the actor performs all of the acts that she set out to do, but
ails to attain her criminal goal.
o Incomplete
 Occurs when a person does not get to stage six. She does some of the
necessary acts to achieve the criminal goal, but she quits or is prevented
from continuing.
 EX: police arrive before she can follow through with the act.
Attempt was first recognized at common law in 1784
o Until then a “miss was as good as a mile”
o A criminal attempt occurs when the person, with the intent to commit an offence,
performs “some act done towards carrying out the intent.”
o The action must constitute a “substantial step”, beyond mere preparation, toward
commission of the offense
 a “substantial step” is a term of art for the MPC, but for our purposes it is
any conduct that has reached the fifth stage of criminality.
 i.e., conduct that has passed preparatory stage and moved to the
point of perpetration of the target offense.
Every attempt is a specific intent crime
Attempt does not occur until stage 5
Why punish attempt?
o The argument AGIANST punishing attempts:
 Attempt is merely conduct targeted at commission of a substantive crime.
The actor expects to succeed. Therefore, any deterrent effect emanates
from the target offense. Threatened punishment for attempt is ineffective.
o Utilitarian Analysis
 A person may assume if she is successful in committing the target offense
she will be undetected. However, she may also assume if she is
unsuccessful she may be detected. Threat of punishment for attempt may
deter the attempt.
 Anyone who attempts to commit an offense is dangerous and may present
an ongoing threat. Incapacitation or rehabilitation is justified.
 Criminal attempt laws provide a preventative law enforcement purpose.
o Retributive Analysis
 A person who shoots and misses is as morally culpable as the one who
 A person who attempts to commit a crime causes social harm by
endangering the community.
Attempt- grading the offense.
o At common law, all attempts were misdemeanors.
Today, attempts to commit a felony is a felony and attempt to commit a
misdemeanor is a misdemeanor but a lesser offense than the target offense.
 The penalty for attempt to commit a capital crime or a crime for which the
penalty is life in prison is set at a specific term of years.
 Attempts to commit a less serious crime is often punished at one-half the
target offence
 The primary criticism of the traditional grading approach is that a person
who attempts to commit a crime is as dangerous and morally culpable as
the unsuccessful criminal. Therefore, attempts should be punished as
severely as completed offenses.
 The defense of the traditional grading approach
 UtilitarianPunishing attempts less than the target offense gives a
person an incentive to desist.
 RetributiveCriminal attempt causes less harm than a successful
crime. The unsuccessful criminal has a lesser debt to pay.
o Attempt- In relationship to the target offense
 A person is guilty of a criminal attempt when, with the intent to commit a
crime, the person engages in conduct which constitutes a substantial step
toward commission of that crime regardless of whether his intention is
 The successful completion of the target offense logically includes the
attempt to omit it. In other words, attempt is a lesser included offense.
 Why does that matter?
o In a prosecution for any crime of intent the jury may return
a verdict of guilty for the lesser crime of attempt to commit
o A person cannot be convicted of both the target offense and
the attempt to commit it. The attempt merges with the
target offense.
MODEL PENAL CODEo MPC version of attempt differs from the CL approach in several respects:
 Substantial Step. The MPC requires a “substantial step in the course of
conduct planned to culminate in his commission of the crime” BUT
includes acts that would be considered mere preparation under CL.
 Basically the MPC contradicts itself…
 For example, MPS sec. 5.01(2):
 (c) Reconnoitering (visiting) the possible location of the crime
 (e) Possession of [criminal tools]
 (f) Possession, collection or fabrication of materials… at or near
the place…
 Grading the Offense. The MPC grades inchoate offenses of attempt,
solicitation, and conspiracy the same as the target offense pursuant to
MCP 5.05(1)
 The exception is 1st degree felonies. Attempt to commit a first
degree- felony is a second-degree felony.
o Factual impossibility is when a person’s intended end constitutes a crime but she
fails to consummate offense because of an attendant circumstance unknown to her
or beyond her control.
 Example:
 Trying to pick an empty pocket
 Attempting to perform an unlawful abortion on a woman who is
not pregnant
 Shooting in an empty bed where the intended victim normally
 Pulling the trigger of an unloaded gun.
o Inherent factual impossibility is where the method to accomplish the crime is one
that “a reasonable person would view as completely inappropriate to the objective
o Example:
 A voodoo doctor who believes his hex will bring about the death of the
intended victim
 Trying to sink a battleship with pop-gun
o Where the law does not prohibit the intended goal
o Example:
 Attempting to bootleg liquor after the repeal of prohibition
 Having sex with a seventeen- year old believing it is statutory rape where
the age of consent is sixteen
Occurs when a person invites, requests, commands, hires, or encourages another to
engage in conduct constituting any felony, or a misdemeanor relating to obstruction of
justice or a breach of the peace.
An attempted conspiracy.
Under Common Law
o Solicitation is ALWAYS A MISDEMEANOR regardless of the grade of offense
Adoption of the MPC
o The majority of states have a general solicitation statute that covers all crimes or
at least all felonies
 Most of the states still follow the CL approach that all solicitations ar
Mens Rea & Actus Reus
o Means Reas: Solicitation is a specific intent crime and therefore the actor must
act with the specific intent that the other person consummated the crime
 Factual impossibility does not serve as a defense for solicitation
If X encourages Y to pickpocket J knowing that J’s pocket is
empty, J is guilty of attempted larceny but X cannot be guilty of
solicitation because there was no mens rea
o Actus Reus: The act in solicitation is when on person invites, requests,
commands, hires, or encourages another to commit a particular offense.
 It does not matter whether solicited party acts, the crime of solicitation has
already occurred.
No CL solicitation occurs if the solicitor intends to commit the crime herself, but requests
the assistance by another.
Use of Innocent Instrumentality does not create solicitation.
o If D fraudulently says to V, “my TV set is t V’s house, can you get it for me?” D
is not guilty of solicitation to common larceny because D is not requesting X to
engage in conduct that would constitute a crime by X.
o The MPC grades inchoate offenses of attempt, solicitation, and conspiracy the
same as the target offense pursuant to MCP 5.05(1)
 The exception is 1st degree felonies. Attempt to commit a first degreefelony is a second-degree felony.
o Defense: Renunciation
 A person is not guilty of solicitation if he (1) completely and voluntarily
renounces his criminal intent; and (2) either persuades the solicited party
not to commit the offense or otherwise prevents him from committing the
Definition: "An agreement between two or more persons to commit a criminal act or
series of criminal acts”
o (don’t even look to the early CL definition or hybrid shit)
o Conspiracy is NOT a collection of people, IT IS AN AGREEMENT!!
Methods of Forming the Agreement
o Formed the moment two or more persons agree that one of them will later commit
an unlawful act.
o The agreement does not have to be written or even verbally expressed
o The agreement can be implied
o The agreement can be proven by coordination or choreography
o An agreement can exist although not all of the parties to it have knowledge of
every detail of the arrangement, as long as each party is aware of its essential
Criticisms of Conspiracy
o Vague
o Person may be convicted well before she commits any acts in perpetration
 Allows police intervention at a much earlier point that is permitted under
attempt law
o Crime is almost always predominantly mental in composition
o There’s a risk people will be punished for what they say rather than what they do
or for their association with those who are found culpable
Why Punish Conspiracies?
o Preventative law enforcement (allows arrest and conviction much earlier than
o The agreement is concrete and unambiguous evidence of the actor’s
dangerousness and firmness of his intention.
o Dangers of group criminality- two a more people who unite to commit a crime are
more dangerous than one.
o Conspiracy was a misdemeanor not matter what the grade of the target offense.
o NO MERGER- a person can be charges with the crime and the conspiracy to
o NO OVERT ACT REQUIREMENT. The agreement was all that was needed
 If one on two people lack the mens rea there can be no conspiracy
o Same for attempt and solicitation- Misdemeanor is a misdemeanor and a felony is
a felony. Still, conspiracy is punished less severely than the agreed upon offense
o NO MERGER- a person can be charged with the crime and the conspiracy to
o Many jurisdictions now REQUIRE AN OVERT ACT
 The overt act can be trivial- does not itself have to be illegal
 Overt act by any co-conspirator is sufficient to convict any party
 Just has to be evidence of the intention, doesn’t have to be illegal
 Example: “lets rob a bank”… “okay!”  6 people said
o The overt act of 1 person buying a ski mask is enough to
charge all three
o The Model Penal Code grades the inchoate offenses of attempt, solicitation, and
conspiracy the same as the target offense.
o conspiracy DOES MERGE with the target offense or the attempt to commit the
target offense unless the conspiracy involved crimes not yet committed or
o No overt act required for 1st or 2nd degree felonies
o Felonies of the third- degree and misdemeanors require an overt act.
o NO PLURALITY REQUIREMENT – unilateral offense
 The code focuses on the culpability of the actor whose liability is in issue
rather on that of the group oh which he or she is alleged to be a part of.
o MPC rejects Wharton’s Rule
Purpose vs. Knowledge
o Mere knowledge is not enough. There must also be purpose to convict and
individual of conspiracy.
o Example:
 Don rents out a room to a prostitute with knowledge she will use it in her
illegal activities but is indifference to whether the crime is committed.
Most courts will not convict a person unless he acts with the
purpose of promoting or facilitating the offense
If, however, Don rents the room to her at an inflated price, purpose
might be inferred.
Wharton’s Rule
o Conspiracy does not apply to an agreement by two people to commit a crime that
requires two people definition.
 Dueling
 Adultery
 Receiving a bribe
 Bigamy
 Incest
 Sale of contraband to a willing buyer
o Does not apply when the offense, as defined, can be committed in the absence of
 Example: possession of a controlled substance with the intent to deliver.
o Exception where more than the minimum number required is involved you still can
have conspiracy
o MPC rejects Wharton’s Rule
Legislative Exception Rule
o A person may not be convicted of conspiracy to commit a crime that is intended
to protect that person
 Example:
 Statutory rape… because she is the victim
o If the party to the agreement is exempt from prosecution for conspiracy, the
plurality requirement would require dismissal of the conspiracy charge against the
remaining defendant
o An accomplice is a person who intentionally assists another to engage in conduct that
constitutes a crime
o A person can be held accountable for the conduct of another if he assists the other in
committing the crime. (Co- conspirator)
o What does it mean to assist?
o Aiding
o Abetting
o Encouraging
o Soliciting
o Advising
o Derivative liability
o Accomplice is punished to the same extent as the principle
o Exception:
 Accessory after the fact
If you assist after the person has reached the place of temp safety then you
are an accessory after the fact
 This is punished generally speaking to a lesser extent than the
target crime
o Causation not required
o Natural and probable consequence doctrine
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