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Substantive Criminal Outline

Substantive Criminal Law
Professor Coker- Fall 2003
A. Limits on State’s Power to Punish
a. Legality
i. “Legality Principle”- people should not be convicted of crimes that are
non-specific, must give notice, must be pre-determined
1. criminal statutes should be understandable to reasonable lawabiding citizens- constitutional notice requirement
2. to avoid prosecutorial discrimination and to be drafted in a way to
avoid ad hoc and subjective determination
3. judicial interpretation of ambiguous statutes be biased in favor of
the accused- limit rather than expand the reading of statutes
a. terms must be given their ordinary meaning
ii. Ways to Interpret Common Law Crimes:
1. crimes that are traditional crime (rape, theft, murder- from anglosaxon times)
2. prosecutors allowed to charge new crimes b/c Δ has injured a
social interest that is generally protected by law (Keller)
3. Common law judicial analysis: judicial reasoning that moves from
decided cases to novel sets of facts (case comparison)
iii. Pre-Definitions of Crimes:
1. Malum Insae- crimes evil in themselves (rape theft murder)
2. Malum Prohibitum- crimes that are prohibited b/c legislature
prohibits them- carry no moral negitive (ex: dumping, speeding)
iv. Requirements of Crime: Actus Reus + Mens Rea
v. Commonwealth v. Keller (Pa)- Woman puts dead babies in closet- claims
there was no statutory principle for indecent disposition of a dead bodyshe had no notice of its “illegality”
Question: Do average people have notice w/common law rules?
→Here, Ct says social norms say we bury our dead, so she should
have known it was a crime to hide dead babies in closet
• this case was brought b/c State couldn’t prove Δ for
• common sense would dictate that even if you don’t know
the laws of burying still born kids, murder law puts
someone on notice that there could be a potential issue
w/murder- a person wouldn’t want to be charged w/murder,
so someone would contact the appropriate authorities
vi. Keeler v. Superior Ct (Cal)- Husband punches ex-wife and kills her fetus
Δ charged w/murder→Statute was silent on whether a fetus was a baby
Question: Did Δ have notice from statute that a fetus is a child?
→Average citizen should have clear notice so he can conform his
behavior- if statute isn’t clear, the individual should not be
punished- here, if murder statute applied, its an ex post facto
application of murder
→a fetus born dead was not a “human being” for purposes of
homicide law under the common law, and therefore could not be
basis for modern day prosecution
vii. People v. Van Alstyne (Cal)- Δ convicted of selling pot- Legislature
defined one type of weed as illegal- no proof that Δ had sold that type
Question: Did Δ have notice that what he was doing wrong?
→Ct is extending legislature’s words- legislature defined one
strain of weed, and ct extended it to encompass all types
viii. Rogers v. Tennessee (2001)- “Year and a day rule” abolished- Δ stabs
man, but victim dies more than a “year and a day later,” Δ tried and
convicted for murder- Δ uses CL defense that “year and a day” rule gets
him out of conviction b/c death occurred after proscribed time- Appeals
Cts says a 1989 Act abolished CL, Tn SC says no- it was abolished b/c
reasons for rule no longer exist→USSC affirms Tn SC
• Holding: Judiciary can alter CL as long as the alteration is not
unforeseen and unexpected- must be some basis for the judiciary
ix. Apprendi v. NJ (2000)-Δ charged w/possession of firearm in connection
w/hate crime- state wants to increase the crime sentence past the statutory
• Here, where the judge sought to increase the jail time by proving that crime was racially
motivated, he could not do so by a preponderance of the evidenceSC says it must be done so by a reasonable doubt standard b/c of
Due Process issue and statutorily it mandated a specific mens rea
b. Specificity
i. City of Chicago v. Morales (1999)- Δ charged under Chicago Street
Ordinance against loitering
• Ordinance held to be unconstitutionally vague b/c failed to reach DP requirements- created too
many questions
Does it give notice to the individual on how to conform their behavior? Does it give
adequate guidelines for law enforcement to not arbitrarily
• Main Point: Ordinance gave police too much power- and people
had no notice they would fall under the statute
ii. Papachristou v. Jacksonville (Fl 1972)- strikes down vagrancy law that
made being a vagrant a crime- b/c language of the statute too vague
• struck down b/c of concern that prosecution may be merely the
cloak for a conviction which could not be obtained on other
grounds (like a black man walking in a white neighborhood)
c. Proportionality
i. Theories of Punishment:
1. Retribution- punishment justified when it is deserved; vengeance,
motivated by the harm Δ caused and the Δ’s culpability, emotional
reaction driven by need for justice
a. Greater the harm, the greater the punishment
b. Inherent limiting factor- never punish someone more than
their culpability
2. Utilitarian- consequential theory- ends based theory, choose this
way b/c we seek a result- punishment be in proportion to the crime
a. Deterrence- no built in proportionality- deterrence comes
from the certainty of being caught not the severity of the
crime, meaning the theory doesn’t work
i. Purist Form- punish at whatever level is necessary
to deter behavior- no connection btn harm and
punishment/ culpability and punishment
1. Punishment based on the indiv and what
level he needs to be deterred
ii. General Deterrence- deters all would be offenders
(most common)
iii. Specific Deterrence- deter the specific person from
engaging in future misconduct- done by:
1. Incapacitation- taking those who have no
regard for the law and putting them outside
a. Looks to prevent those inclined to
break the law from having the
opportunity to do so
2. Intimidation- Δ’s punishment reminds him
that if he returns to crime he will experience
more pain
iv. Rehabilitation Theory- purpose of punishment
was to identify cause of crime and rehabilitate the
1. Therapeutic Benefit- pay attention to the
psychological events- from who’s
perspective-Victim or offender’s
9. Social Norm- consequentiality approach- comes out of deterrence
a. People conform b/c it is important to pay attention to norms
to be safe
b. Educative/Expressive- we criminalize and how harshly
based on expression of social values
10. Restorative Justice- victim/offender mediation- popular in
Australia – used for minor crimes and juveniles
a. Assumes a “victim crime”
ii. 8 Amendment requires that the punishment must be in proportion to the
iii. Ewing v. California- 3-strikes your out law→Δ sent to jail for 25 years for
writing bad checks and stealing golf clubs
• SC says 3-strikes not a violation of the 8th Amendment3
(Scalia Dissent: constitution doesn’t mandate a theory behind
putting someone in jail- cannot require proportionality b/c it is
theory and the ct doesn’t have to follow it per se (could choose
deterrence etc)- is he correct?)
• unless the crime/punishment is EXTREMELY
disproportionate, then the punishment will be upheld
iv. Atkins v. Va- violates 8th amendment when mentally challenged person
given death penalty b/c its cruel and unusual punishment
B. Culpability
- ACTUS REAS- “a voluntary act that causes social harm”
a. Act Requirement: conditioning just punishment on proof of an act (the
physical/external portion of the crime)
• punishment depends on the physical performance of the act
i. Proctor v. State (Ct of App OK 1918)- Δ operating a speak easy
→Δ found not guilty b/c he only had intent to be a speak easy- didn’t
have any liquor or do anything per se
• proving evidence of intent= thought crimes→gives too
much discretion to law enforcement- must look at
• intent alone not enough, need an ACT
• argument for punishing intent- if you have an illegal thing
on you (gun, drugs etc) more likely to actually use it
ii. meaning of requirement of an act is thin- cuts either way, depending on
what policy the ct wants to push forward
8. Caswell- loitering by a public toilet statute- hanging around a
public toilet w/intent to do a luscidious act upheld- the loitering is
the necessary actus reus + intent + location
9. Valot- drugs in room- Δ rented the room so he had control and
constructive possession of the room so he had- his “act”
10. Clark- Δ had drugs sent to him- and cops took some out, so he
never had constructive control over all of them
b. Omission of Act- the “Exception”
i. person can have a CL duty to prevent harm to another b/c she stands in a
special relationship to the person in peril
8. Jones v. US- woman taking care of baby, doesn’t feed her and
she dies (here, there was no legal duty for her to act)→4 ways
where failure to act is a breach:
1. by statute
2. by status relationship w/another
3. assuming a K duty of care for another
4. voluntarily assuming the care of another and preventing
others from aiding that person
9. Leet v. State of Florida- Δ charged w/3rd degree felony murder and
child abuse
• there was no “legal relationship” b/c he was mom’s
boyfriend, but there was a “status relationship” and he had
a duty and couldn’t ignore abuse to baby
c. Voluntariness- “movement of the body which follows our volition” which
involves the use of the human mind- foreseeability of your voluntary conduct
having a cause and effect
i. habits are included in voluntariness- demonstrates that it is unnecessary
for the person to actually be conscious of what he/she is doing
ii. People v. Newton- Δ on plane w/gun, gets unruly, and plane stopped in
NY b/c of him and gets arrested
• Ct says he can’t be charged under NY law b/c he was involuntarily
present in New York
• What is voluntariness? (same as question of causation- slippery
slope)- comes from the idea that CL can’t deter involuntary
movement (and therefore crime)
iii. Martin v. State- Δ pulled out of house and arrested for public drunkenness
• Ct says Δ not voluntarily outside so cant be guilty
• To be guilty under the statute, Δ had to: 1. appear in public, and
2. act there in a boisterous manner; 3. while intoxicated→ Ct
correct in focusing on how Δ involuntarily ended up in the street,
rather than how he voluntarily became intoxicated
iv. People v. Grant- Δ drinks and has seizure and gets violent and arrested
• Ct has a different look at voluntariness- While the seizures
themselves are involuntary, Δ voluntarily decided to drink, which
caused seizure, which caused violence→ reckless creation of the
• sufficient that Δ’s conduct included a voluntary act
v. MPC on Voluntariness (§2.01):
8. (2) the following are not voluntary w/in the meaning of this section
a. a reflex or convulsion
b. bodily movement during unconsciousness or sleep
c. conduct during hypnosis or resulting from hypnotic
d. a bodily movement that otherwise is not a product of the
effort or determination of the actor, wither conscious or
d. Status
i. Robinson v. California- Δ charged w/being a drug addict not for an actual
usage- conviction overturned b/c can’t be punished for being a drug
addict, w/out a specific instance
• Harlan Concurrence- this criminalizes a propensity to act, not the
act itself so Δ should not be guilty
• Is being a drug addict voluntary or not?
• punishing for who you are (status), not what you do- in terms of
voluntariness, state not proving an act, just a propensity to act, so it
is really voluntary?
• Retributive Message- drug addicts constitute a danger to society
and while it may be rational to incarcerate some of them, it is
indecent to punish them simply b/c they are sick
ii. Powell v. Texas- Δ convicted of being drunk in public- being an alcoholic,
while involuntary, doesn’t shield one from being convicted for actions
(being drunk outside- punishment for conduct, not status)
• This does NOT overrule Robinson- the 2 cases stand for the
proposition that a state may not dispense w/the criminal law
requirement of an actus reas- gov’t can’t punish someone for her
thoughts alone, or for mere propensity to act, but some conduct by
Δ is constitutionally required
iii. Pottinger v. City of Miami- Arresting the homeless for harmless,
involuntary, and life sustaining acts like sleeping, eating, or sitting in
public is cruel and unusual punishment- so statute and its enforcement is
unconstitutional• Ct views homelessness as involuntary and that the acts
surrounding it are not threatening to public welfare
iv. Joyce v. San Francisco- Status v. condition- Ct understands
involuntariness to encompass age, race, gender, nat’l origin, and illness
v. Johnson v. State- Δ charged w/delivery of cocaine to a baby during birth
• conviction overturned b/c physiological, not voluntary act- took coke for herself, not for her kid,
legislature didn’t intend this to apply to women giving birth (meant
for drug addicts on street)
e. MPC Approach
i. MPC § 2.01 (Actus Reas Requirement)
a. says “no person may be convicted of a crime in the absence
of conduct that ‘includes a voluntary act or the omission to
perform an act of which he is physically capable’”
b. prosecution must persuade factfinder beyond a reasonable
doubt to the existence of a voluntary act
c. general “no liability rule” for failure to act- ex: Kitty
Genovese- killed on the street, screams heard by 20
neighbors, no one helped her, no one found liable
d. liability based on omission permitted in 2 circumstances:
1. if the law defining the offense provides for it
2. if the duty to act is “otherwise imposed by
- MENS REA: The Guilty Mind- “The act does not make a person guilty, unless the
mind be guilty”
o A person is not guilty of an offense unless he performs a voluntary act (or omits
an act that is his legal duty to perform) that causes social harm (actus reas), with a
mens rea (guilty mind)
o Broad meaning: “general immorality of motive,” “vicious will,” or an “evil
meaning mind”- moral blameworthiness state of mind
o Narrow meaning: particular mental state required for in the definition of an
offense (ie- someone can possess mens rea in the sense of culpability, but lack the
requisite one for the offense)
o Strict Liabilty:
▪ Public Welfare Crimes (malum prohibitum) are usually those for which
one can be found SL in order to make those w/the power to prevent them
take all steps to do so (while malum in se crimes usually have a mens rea
element read into them)
▪ Different Kinds of Strict Liability:
1. Substantive Strict Liability- looks at overall impact of statute
and says this is creating SL w/out any mental fault- liability
w/out moral fault (like a regulatory crime)
2. Pure Strict Liability- every element of the charge is SLliability w/out any culpable mental state w/respect to any
objective elements
3. Impure Strict Liability- some elements have a mental state
other than SL- liability w/out any culpable mental state
w/respect to at least 1 such objective element
▪ US v. Balint- Δ sold drugs, but didn’t know they were illegal to sell
• indictment upheld b/c no need to prove mens rea where the crime is a regulatory crime (malum prohibitim)
• one who sells anything does so at his own risk, and on him to know if its legal
▪ US v. Dotterweich- Company president held liable for adulterating drugs
put into interstate commerce
• He didn’t have to know, but he should have known- jury only has to know that he had a responsible
relation to the violative transaction/condition to qualify him as a
person violating the statute
• Public interest in preventing mislabeled drugs from going into the market
▪ US v. Park- contaminate food- Ct moves from the SL standard to
negligence standard
• it is in the interest of the larger good to burden the otherwise innocent person who is responsible for
preventing public danger and the Act requires a duty to implement
measures to insure that violations will not occur
▪ Morissette v. US- Δ convicted for knowingly converting gov’t property
• Ct says not a public welfare crime, so can’t be SL so his conviction is reversed- Congress didn’t want to
make this a SL crime, so Ct views it as a crime of theft from CL so
must prove intent
• Public Welfare Crimes are regulatory and can be held under SL standard- (ie- no express mens rea
requirement) wrong b/c it is prohibited
• Non-regulatory and CL are generally not SL
• EXCEPTION: ex: statutory rape still don’t have to prove intent
▪ Regina v. Falkner- Δ convicted for burning down ship while trying to
steal rum
• Ct says Δ didn’t intend to burn the ship down, just to steal the liquor, so can’t transfer the intent to steal to
intent to destroy—transferred intent is a general intent to do wrong and
here by lighting the match was not in itself wrong
▪ US v. X-Citement Video- Child Porn
● Statute was read to mean that “knowingly” modifies the transport
of the tapes as well as that there are minors so all the state has to
show is that the Δ knew they were children (still not strict liability
b/c it requires some knowledge mens rea)
o How to Read Statutes to Determine Mens Rea (See p.134 of S):
1. Look at Legislative Intent
2. Look at CL
3. Look at grammar
▪ Model Penal Code requires a mens rea for every element and only allows
strict liability for violations with fines
▪ “Intentional”- groups together knowledge and purpose
▪ If a defendant is “slow” then recklessness may not apply to him because
he may not be able to “consciously disregard the circumstances known to
him” but he could still be negligent
▪ MPC requires a Mens Reas for every offense = actus rea + mens rea +
attendant circumstances + causation + result – (affirmative defenses)
▪ Default is recklessness (when there is no mens rea- use RECKLESS!)
CATEGORIES OF MENS REA (under the Model Penal Code §2.02)
He is aware of the circumstances
It is hisor
hopes they
exist Wants
to cause
to do
it a result
He is aware that such circumstances
He is aware
that it is practically
but is practically certain it will
conduct will cause such
a result
He consciously disregardsHe
a substantial
a substantial
to or know for sure that it’s going
unjustifiable risk that
unjustifiable right that
to happen but thinks
the material element
the material element
it might
will result
from his
He should be aware of a substantial
He shouldand
be aware
of a substantial
Doesn’t realize
and unjustifiable
that it’s going to happen or might
risk that the material
risk that the material
happen even though
element exists
element will result
a reasonable person
from his conduct
Elements of an
▪ Pur
o Regina v. Faulkner- Δ lit match while trying to steal rum from ship hold- match
lights ship on fire
▪ Prosecution tried to transfer the “malicious intent” of stealing the rum to
burning down the ship, but Ct says cant transfer intent of one crime to
another if the second is not an obvious extension of the first
o Mistake and Mens Rea
▪ Regina v. Prince- unlawfully take or cause to be taken + unmarried girl
under 16 + out of possession and against will of parents
• CL understanding of mens rea is a “bad mind”- if act is immoral,
fair to apply SL
Dealing w/Mistake and Mens Rea:
1. Must infer mens rea for every element of crime
2. Allow for reasonable belief excuse, but make affirmative
defense- Δ has burden of production (creates like a negligence
3. Allow defense of mistake, but if Δ would have been guilty for a
crime other than which he was charged, hold him liable for that
4. If would be guilty of immoral activity- don’t allow for mistake
and hold him SL
Mistake of Fact- if one’s mistake negates mens rea required for offense,
state cannot defeat that mens rea (“I thought she was 18”)
● Will do NOTHING for a SL crime
Mistake of Law- not knowing it is a crime- generally not a defense unless
it’s made a defense in the statute- IGNORANCE IS NO EXCUSE
● There is SL for knowledge as to whether an act is criminal ( US v.
Baker- counterfeit Rolexes)
● Reasonable notice is a defense
● Even if relying on an attorney for law and the law is incorrect does
not give immunity to person seeking advice- advice of counsel
even though followed in good faith, cannot be relied upon as a
defense in criminal action (Hopkins v. State)
● Specific v. General Intent Crime
o In general intent cases, mistake of law is not a defense
(similar to SL)
o In specific intent cases, mistake of law can be a defenseprosecution has to prove Δ intended to do something, and if
you were mistaken as to the law, you may not have
intended to commit that crime
o Some argue to prove specific intent must prove purpose,
others say prove up to knowingly- if not specific intent, its
general intent, only have to prove negligence if no specific
intent requirement (Frey is the most common
o Voluntary intoxication really only becomes a factor with
specific intent, b/c w/general intent mens rea not a factor
o MPC drops the specific/general intent distinction (ex: if
statute has a “knowing element” to crime, then intoxication
can be used as a defense, b/c it could show the person
committing the crime couldn’t have reached the “knowing”
element of culpability- HOWEVER, if the statute is silent,
default to recklessness, so the intoxication would NOT be a
defense to crime b/c MPC draws line at knowingly and it
doesn’t matter how drunk he is b/c it doesn’t matter if he
knew- only matters that he’s reckless)
● State has power to define a crime as specific or general intent
crime or what level on the MPC chain it wants it to fall
▪ Mistake of Non-governing Law- some other law that may be embedded
in the meaning of a particular element, but not law under which Δ
charged- a mistake of non-governing law may negate the mental element
● People v. Bray- Δ pled guilty to being an accessory after the fact to
being in possession of a firearm b/c he had no prior record, he got
probation- over the years, he always disclosed his record, but when
he filled out his gun permits, he didn’t include that info b/c he
didn’t think his record made him a felon
o Ct said that b/c even the State Attorney had trouble
determining whether Δ was a felon, he should be allowed to
use his lack of knowledge of his felony status as a defense
o Under MPC, it would have been reckless but his lack of
lack of knowledge served as his defense
o Default and Mens Rea
1. Find the Mens Rea
2. Find out if it applies to each element of the crime
3. If it does not apply to each aspect, go to the default rule and that rule will apply to that element (recklessnessMPC)
o Capacity to Form the Mens Rea
▪ State v. Cameron- Δ drunk, assaulted 4 men, threw bottle at cop car, and
shouted obscenities
• while voluntary intoxication can be a defense to a criminal charge b/c it may prevent Δ from forming
the mens rea, the Δ did not demonstrate sufficient evidence of her
intoxication to render her incapable of purposeful or knowing
C. Homicide
- Murder is usually defined as an unjustifiable killing manifesting:
1. purpose to cause death, or
2. intent to inflict serious bodily harm, or
3. extreme recklessness with respect to a serious risk of harm to another’s life, when the
risky actions manifests so unworthy or immoral a purpose as to suggest callous
indifference to human life, or
4. a willingness to undertake even a very small risk of death where the risky conduct is
so unworthy as to establish guilt of a serious felony (Felony Murder Rule)
5. Intentional v. Unintentional (homicide)
a. Intentional Killings = Purpose or knowledge
i. Premeditated & deliberation
ii. Heat of passion (voluntary manslaughter)
b. Unintentional Killings:
i. Criminal negligence
ii. Recklessness (ordinary; criminal negligence)
iii. Depraved heart murder
iv. Intent to commit grievous bodily harm
c. Organization has nothing to do about severity of killing
Categories of murder:
o deliberation and premeditation (1st degree)
o depraved heart
o intent to commit grievous bodily harm
o felony murder
Categories of manslaughter:
o voluntary (intentional killing in the heat of passion)
o involuntary (criminal negligence or recklessness – as under the MPC)
a. Intentional Homicide
i. Intent to kill establishes the “malice” or “malice aforethought” necessary
for murder
ii. Francis v. Franklin- Unconstitutional to shift any burden to the Δ- intent
cannot be presumed and must be established by the prosecution
iii. Transferred Intent- if Todd intends to shoot Jamie, but hits Julie instead,
the intent to kill Jamie transfers to the unintended killing of Julie
iv. Premeditated Murder- “Intent Plus” (1st Degree)
8. MPC did away w/“premeditation” requirement and instead
requires knowledge or purpose
9. “Cold Blooded” killing
10. US v. Watson- premeditation can happen w/in seconds (Δ had the
opportunity to leave, but stayed and killed the cop)
v. W/insanity- insanity can negate premeditation but does not necessarily
negate intent—basically, one can have capacity to form intent, but not
vi. MPC v. Other State Jurisdictions on Murder:
8. MPC does not distinguish btn “premeditated” and “merely
incidental”- has only 1 degree for murder
9. other states differentiate btn:
a. 1st Degree Murder= Premeditation (“intent plus”)
b. 2nd Degree Murder= Intent to kill
vii. Manslaughter
8. no bright line btn murder and manslaughter
9. Two Types of Manslaughter
a. Voluntary Manslaughter
i. Provocation has caused the Δ to act in the heat of
passion (catching wife having sex w/someone else)
ii. Four Elements:
1. reasonable provocation
2. act in heat of passion
3. no time for reasonable person to cool off
4. Δ did not actually cool off (the cool off
period is an objective standard)
iii. Two Rationales of Voluntary Manslaughter:
1. Excuse- insanity idea, no social utility to Δ’s
actions, but unable to control himself
2. Justification- provocation came from some
outrageous act of the “victim”- words are
not adequate enough provocation
iv. People v. Walker- “Continuous Transaction” ideaΔ was responding to the threat posed by victim and
in the passion remaining from the fight, so he was
guilty of voluntary manslaughter not murder
v. “Rekindling Concept”- (People v. Barry: wifeIsrael-sex) while a specific instance of provocation
would not be adequate, when coupled w/past
instances of provocation, would suffice for
provocation and a charge voluntary manslaughter
vi. Ex Parte Fraley- idea of “Cooling off period”- Δ
shot and kills man 9 months after man stood trial
(but found not guilty) for killing Δ’s son- Ct finds
there was an adequate “cooling off period” so Δ
should be charged w/murder, not manslaughter b/c
even if he had killed in rage, the “reasonable
person” would have cooled off by then
vii. Nourse’s Idea on Morals and Moral Views in the
Law Concerning the “Passion Defense” (p.407)
• Reform of the passion defense has bound women
to the emotional claims of husbands/ boyfriendsdiscourages women to leave their victimizers,
allowing Δs to argue that a battered wife who leaves
has, by leaving, given Δ a reason to treat the killing
• Wants to limit the use of the “Passion Defense” to
circumstances where:
a. Δ and victims stand on equal emotional
and normative planes
i. Husband who kills his wife’s
rapist- his emotional judgment
inspired by the belief in a wrong that
the law agrees with
ii. Man who kills his departing wife,
claiming her departure outraged him,
loses this normative ground
Would allow provocation as a “warranted
excuse” where the Δ can win sympathy as
well as legally sanctioned concurrence to the
moral view that predicated the action
• When voluntary manslaughter and
Extreme Emotional Defense (Passion
Defense) she’s concerned that too many
cases are going to the jury
viii. MPC on Voluntary Manslaughter- “Committed
under the influence of extreme mental or emotional
disturbance for which there is reasonable
explanation or excuse
• subjective b/c of words “reasonableness of
such explanation/excuse” shall be
determined from viewpoint of a person in
the actor’s situation- under the
circumstances as he believes them to be (he
refers to a person in actor’s situationobjective)- subjective objective
b. Involuntary Manslaughter- see below (Unintentional
b. Unintentional Homicide
i. Involuntary Manslaughter- as a direct result of doing the act in reckless
or grossly negligent manner, causes the death of another person
8. MPC
a. Requires a conscious disregard of substantial and probable
9. Ordinary Negligence v. Criminal Negligence
a. Ordinary Negligence- reasonableness requirement- failing
to act w/care of a reasonable person
i. State v. Williams- Ct applies ordinary negligence
standard (whereas usually it’s a higher criminal
negligence standard)
• Baby dies after not being treated for gangrene
• Social aspect that they were Indian
b. Criminal Negligence- death is a probable consequensenotch above ordinary negligence- risk of harm is greater
than ordinary— Objective requirement (so if reasonable
person should have known, that’s enough to convict)
i. Not necessary for state to prove that Δ had
knowledge of risk- follows from reasonableness
ii. Commonwealth v. Wolansky- Nightclub firesubjective and objective element and charge to juryreasonable person has to know the action likely to
cause death
• The subjective element does not help Δ b/c
it gives prosecution chance to say even if the
reasonable person wouldn’t know this was
reckless, this Δ did know, so he is therefore
ii. Extreme Reckless Murder
8. Requires: 1. illegal conduct or a high probability of causing death
AND conscious disregard for the risk
9. Heart bent on mischief→purpose and knowledge, do not actually
have to have the purpose of killing, but have to be doing
something unlawful—SL idea, so if you do something unlawful
and a death occurs- tough shit
10. important to look at the underlying act- see if there is a malicious
intent- idea of moral reprehensibility
11. MPC on Reckless Murder
a. Conscious disregard of an unjustifiable risk of deathExtreme indifference to the value of human life
b. Captures the moral depravity of the act, the person, and the
risk the person took
c. Moral idea built into the code
12. Mayes v. The People- husband throws cup at wife, hits a candle,
wife dies from burns- Ct says its reckless murder b/c of his wanton
disregard, heart bent on mischief
iii. Felony Murder- no intentional act is required to hold someone
responsible under the felony murder doctrine except the actual
commission of the felony
● presumes malice aforethought on the basis that the commission of
the felony is inherently dangerous to human life
● says that if you have whatever the mens rea is that is necessary for
the underlying felony and a homicide occurs during the felony, you
are responsible for felony murder- most common rationale for
felony murder is to discourage criminal from resorting to murder in
commission of felony
● there is no requirement that the death be instantaneous or even be
part of the felony as long as there is a causal connection that can be
made- the felony must be a proximate cause of the killing
o Foreseeability▪ precise victim doesn’t need to be foreseeable, but
must be foreseeable that victim would fight back
and someone would die- proximate cause (Lowry)
▪ Stamp (Ca)- Δ robs store and 20 minutes later clerk
has heart attack- Ct says felony murder- shoots
down any notion of proximate cause foreseeabilitycontinuous transaction and not proximate cause as
Lowry understands it
● most felony murder statutes have enumerated felonies and such are
considered 1st degree murder- those not enumerated are 2nd degree
murder→felony murder can turn what would be 2nd degree
murder into 1st
● People v. Gladman- Δ robs deli and runs away, cop sees Δ, then Δ
shoots cop
o Ct viewed Δ’s flight as him still trying to escape the
robbery when he killed cop- so this connection made felony
murder applicable
● Hickman- Cop shoots other cop mistakenly thinking he is shooting
a co-Δ and the Δ is held guilty of felony murder of cop
o Felony murder applies here b/c of proximate cause/
continuous transaction idea- Δ never reached place of safe
o Ct makes distinction btn if cop shot a co-Δ and he died, the
co-felon would not have been held liable for felony murder
b/c the murder was justified (assumption of the risk)- does
this make sense b/c it doesn’t deter the crime?
8. Different approaches to the limits of the doctrine:
1. proximate cause – any killing, regardless of victim or shooter,
as long as related to the felony (Stamp)
2. protected person – focus on who the victim is, if innocent
person or an officer then felony murder (but not responsible for
accomplice’s death) (Hickman)
3. agency theory – the killing has to happen by a co-felon so the
focus in on the actor as part of the felony (discussed in
• (Model Penal Code presumes recklessness and this is the mens
rea that the defendant must overcome)
iv. Merger- Felony must be distinct from the killing→prosecution must
prove intent to kill if the felony and the death are merged (Δs prefer the
merger b/c its harder to demonstrate)
● EX: the conduct the person engaged in that would give rise would
give rise to the underlying felony- is that the conduct that caused
the death? This would be true in aggravated battery
a. State v. Lucas- child abuse case- Ct merged the child abuse
w/the murder of the child
i. Analogy made to aggravated battery on an adult and
demonstrates that there is no difference when such
is done to a child
b. People v. Burton- Merger attempt by Δ fails b/c armed
robbery and murder of store owner are independent acts
o Intentional v. Unintentional Homicide
▪ Intentional Killing- purpose or knowledge
● Premeditation and deliberation (Murder)
● Heat of passion (Voluntary Manslaughter)
▪ Unintentional Killing
● Criminal negligence
● Extreme Recklessness Murder
o Deprave heart murder (extreme reckless murder)
o Intent to commit grievous bodily harm
● Felony Murder
o Intent is irrelevant
o Murder v. Manslaughter
▪ Murder
● Deliberation and meditation (1st Degree)
● Depraved heart murder
● Intent to commit grievous bodily injury
● Felony murder
▪ Manslaughter
● Voluntary- intentional killing under heat of passion
● Involuntary- criminal reckless negligence (MPC)
D. Self-Defense and Duress
a. Self Defense
i. Justifiable homicide means that the shooter wasn’t necessarily wrong and
was acting in self defense
ii. Requires- Reasonable Belief (from actor’s situation) + honest belief +
danger of death or serious bodily injury (imminent/immediate)- retreat
(except for Castle Doctrine but not if you’re co-occupant)
iii. 2 parts of the self-defense claim requires a subjective element (what they
honestly thought) and an objective element (what the reasonable man
would think of the situation)
iv. imminent danger must be at the time and cannot be fear of future harm
v. People v. LaVoie- Δ driving and car nudged by car behind him- after the
decedent advanced by foot toward Δ, Δ shot and killed him→Ct said Δ
had the right to defend himself against the threatened assault of those
whose lawlessness and utter disregard of his rights resulted in the
justifiable killing of one of them
8. Δ had a reasonably belief that he was in danger- subjective (Δ’s
belief of danger) and objective (reasonable person would be scared
as well) element
9. Jurisdictions vary on the way they understand subjective element
vi. State v. Leidholm- wife kills abusive husband while he’s asleep
8. Honest but unreasonable belief can be manslaughter
9. Subjective-objective- Jury instructed NOT to put themselves in the
shoes of the actor (Used here)- MINORITY VIEW
a. the more subjective we look at the claim of self defensebroadening the range of relevant admissible evidence
(inclusive of expert testimony as to demonstrate Battered
Wife Syndrome)
10. Subjective-subjective- Jury puts themselves in position of Δ to
render whether self defense was appropriate
vii. Testimony on Battered Wife Syndrome
• evidence on the syndrome goes to both the subjective “honest” element
and the threat of imminent danger as well as allowing a circumstance to be
created for the “actor’s situation” (in jurisdictions that allow a jury to
consider the actor’s individual situation)
• testimony about how dangerous it can be for a woman to leave (statistics
on deaths after leaving, etc.) can be used to show that her situation is like
other self-defense cases
a. There is a duty to retreat but only when the Δ can
escape in complete safety
b. Castle doctrine - when someone is at home, there is no
duty to retreat
c. Some states have made an exception to the castle
doctrine when the killer is a co-habitant
i. State v. Weiand – Minority ViewCastle
Doctrine- there is no duty to retreat from one’s
own home when Δ is suffering from battered
wife syndrome
1. b/c co-habitant exception impacts mostly
women, there is an equal protection
argument b/c women being denied the
defense that men can use (duty to retreat
said you should not take a life unless you
a. US v. Peterson-one who is the aggressor cannot invoke
self defense unless he cans show he abandoned that
aggression and communicated it to the other party
i. Here, original aggressor (man stealing the
windshield wipers) abandoned his aggression by
retreating, so Δ by getting the gun became the
aggressor and cannot use self defense
E. Attempt and Impossibility
a. Mens Rea of Attempt
i. To be guilty of attempt- must have intent to do target crime
ii. State v. Lyerla- Δ driving and antagonized by car behind him- he shoots at
car when they try and pass him
8. mens rea for attempt means as long as you have the appropriate
mens rea for the target crime and you intentionally engaged in that
conduct that would have been the target crime then you are guilty
of attempt
9. Ct says 2nd degree murder is reckless- so you can’t “intend” to be
reckless (rule in majority jurisdictions)
b. Actus Reas of Attempt
i. Different Tests to Determine Attempt v. Preparation
8. The Physical Proximity Doctrine: the overt act required for an
attempt must be proximate to the completed crime, or directly
tending toward the completion of the crime, or must amount to the
commencement of the consummation
9. The dangerous proximity doctrine: a test given impetus by
Justice Holmes whereby the greater the gravity and probability of
the offense, and the nearer the act to the crime, the stronger the
case for calling the act an attempt
10. The indispensable element test – a variation of the proximity test
which emphasizes any indispensable aspect of the criminal
endeavor over which the actor has not yet acquired control
(somewhere b/t bringing the gas and going to the house to burn it)
11. The probable desistance test: the conduct constitutes an attempt
if, in the ordinary and natural course of events, without interruption
from an outside source, it will result in the crime intended.
12. The abnormal step approach: an attempt is a step toward crime
which goes beyond the point where the normal citizen would think
better of his conduct and desist
13. The…..unequivocality test: an attempt is committed when the
actor’s conduct manifests an intent to commit a crime.
ii. MPC §5.01 Criminal Attempt – “Substantial Step” (going to the house)
8. 1) definition of attempt: a person is guilty of attempt to commit a
crime if, acting with the kind of culpability otherwise required for
commission of the crime, he…
c) purposely does or omits to do anything that, under the
circumstances as he believes them to be, is an act or omission
constituting a substantial step in a course of conduct planned to
culminate in his commission of the crime.
9. Conduct that may be held to be a substantial step under Subsection
1 C. Conduct shall not be held to be a substantial step under 1 C of
this section unless it is strongly corroborative of the actor’s
criminal purpose. Without negativing the sufficiency of other
conduct, the following, if strongly corroborative of the actor’s
criminal purpose, shall be not be held insufficient as a matter of
o a) lying in wait, searching or following the contemplated
victim of the crime;
o b) enticing or seeking to entice the contemplated victim of the
crime to go to the place contemplated for the commission of
the crime
o c) reconnoitering the place contemplated for the commission of
the crime;
o d) unlawful entry of a structure, vehicle or enclosure in which
it is contemplated that the crime will be committed
o e) possession of materials to be employed in the commission of
the crime, that are specially designed for such unlawful use or
which can serve no lawful purpose of the actor under the
o f) possession, collection or fabrication of materials to be
employed in the commission of the crime, at or near the place
contemplated for its commission, where such possession,
collection or fabrication serves no lawful purpose of the actor
under the circumstances;
o g) Soliciting an innocent agent to engage in conduct
constituting an element of the crime.
• Abandonment under MPC requires a voluntary renunciation of the
anticipated crime, but excludes abandonment b/c of: increase in likelihood
of apprehension/detection OR circumstances which would make it harder
to complete
iii. People v. Murray- Man “attempting” to marry his niece
8. Ct says difference in attempt from preparation- attempt movement
is a direct movement towards the act after preparations have been
iv. McQuirter v. State- Black man found guilty of attempted assault w/intent
to commit rape
8. shows dangerous reach of attempt- shows how a weak actus reas
can criminalize thought (took social facts of time to generalize
9. if court had used phyisical proximity test- case wouldn’t even have
gone to court- b/c not even close to the beginnings of the final
v. People v. Rizzo- Δs wanted to rob the payroll man, but never saw him
8. Ct says not attempt b/c the opportunity to commit the crime didn’t
present itself (seems like a legal impossibility argument)
c. Impossibility
i. Factual Impossibility- almost never a defense
1. Δ has mens rea for crime, fails to consummate that crime b/c of
facts beyond/unknown to him
a. Ex: pickpocket reaches into an empty pocket- shoots an
empty bed
2. Δ would be guilty of an attempt b/c if the facts were as he wished,
it would have been a crime
ii. Pure Legal Impossibility- clearly a defense
1. Law does not proscribe the goal that the Δ sought to achieve- not
illegal to do what Δ wanted to do, though he thought it was a crime
a. Ex: Jeff wears superman costume through law school
thinking its illegal- wouldn’t be illegal
2. better understood as the legal principle- conduct that the ct nor
legislature has defined as criminal conduct
3. Δ attempts to shoot battleship by shooting popgun- believes doing
so will sink it (has mens rea for the target crime)- but law of
impossibility that law of physics will not allow it to sink it, so he’s
not able to sink the ship
a. Cts differ- but if the method to accomplish a crime is
objectively inappropriate, we will not allow it to be an
Booth v. State- Δ charged w/crime of receiving stolen property
1. Coat was already received by the police, so was no longer “hot”then used to lure the Δ to accept it
2. Ct said even though he had the mens rea for the crime, and
performed the actus reus- what he was trying to do was not
actually illegal b/c coat no longer stolen- LEGAL
People v. Dlugash- Δ shot man 3 times after someone else had already
shot him-argues that it was a legal impossibility for Δ to be guilty b/c man
already dead
1. Ct says that Prosecution didn’t prove beyond a reasonable doubt
that man was alive so Δ gets off
Now the difference b/t legal and factual impossibility has collapsed and
are hard to differentiate b/t
MPC- someone can be charged w/the crime when the circumstances were
as they believed them to be- if someone is trying to sell cocaine but its
really baby powder (uncer the CL a factual impossibility) can be charged
b/c they believed it was cocaine and that is against the law- does away
w/difference btn legal and factual impossibility (only defense is if in fact
what you believe is illegal is not actually illegal- Jeff ex)
F. Complicity
a. used to be complicated with varying degrees of accomplices and
principals→NOW anyone who has any relation to the crime as an accomplice has
the same liability as the principal
b. Exception to equal liability for accomplices is the accessory after the fact (ex- one
w/the knowledge of another’s guilt who intentionally assists the felon to avoid
arrest, trial or conviction (like hiding the criminal afterwards) which are dealt
with in separate statutes
i. Not liable for principal’s crime, but are liable for distinct crime of
obstruction of justice
c. Mere presence is NEVER enough in trying to make someone an accomplice- prior
agreement to aid and abet is unnecessary- but if behavior suggests that they
intended to aid and abet then they become accomplices
d. Usually if the principal cannot be charged then the accomplices cannot either- but
an accomplice can be found guilty even if the principal is not
e. Usually requires proof that the Δ accomplices KNEW what the principal was
going to do and AIDED in some way
f. As a general rule, if a perpetrator’s conduct does not fulfill the act element of the
offense, there is no offense (and so no complicity either)
g. MPC- Person an accomplice w/the purpose of promoting or facilitating the
commission of the offense he: aids or agrees, or attempts to aid, such other person
in planning or committing it
h. Actus Reas
i. State v. Ochoa- Sheriff shot while people rioting to have prisoner removed
from jail
8. the court finds the 2 Δs who were actually beating the other cop
guilty as accomplices b/c their actions prevented that cop from
assisting the sheriff and they continued to participate in the beating
after the shots were fired- their presence encouraged the shooter,
so they assisted in the killing and can be liable for 2nd degree
9. prior agreement b/t actors is unnecessary- their simple behavior
aided and abetted so they are guilty of the overarching crime
ii. State v. Walden- Δ convicted as an accomplice when her boyfriend struck
her 1-year old
8. she aided by not doing anything to prevent the crime
9. Ct goes from omission to complicity by showing by her not doing
anything she gave her consent and contribution to the crime
10. Is this troubling??? Takes the duty that one has and does away
w/what is required of complicity
a. Essentially mere presence is enough- not the usual rule
iii. State v. Tally- CL Rule- Δ prevented a warning to be given to decedent
about impending danger, and as a result, man killed
8. To be guilty of a crime, a Δ must do an act in furtherance of the
criminal design, the act must contribute to the effectuation of the
crime, and the act must bring about the actualization of the
criminal design (here, the death of the man)- the “aiding” must aid
in the actus reas
9. the accomplices act must have some effect on the outcome
i. Mens Rea
i. Under CL if you attempt to help but your efforts are ineffective (and you
haven’t encouraged in any way) then you can’t be charged for aiding and
abetting (b/c it requires some sort of encouragement)
ii. Under MPC, if you attempt to assist then you are guilty of aiding and
abetting (ex: leave window open for a robber, but he goes through the
front door)- Requires:
8. Knowledge of the principal’s criminal intent AND
9. know/have purpose that your action will facilitate a criminal result
or want/hope for a criminal result
iii. People v. Beeman- Majority – Δ tells thief where his sister-in-law keeps
jewelry, but then informs thief that he wants out- thief robs her
8. To aid and abet, one must act w/knowledge of the criminal purpose
of the principal and must have the intent/purpose to either commit
or encourage/facilitate commission of the crime
9. here, Δ backed out, so he’s not guilty
iv. US v. Giovanetti- can be an accomplice if you actively avoid knowledge
v. Wilson v. People- Δ tricked man into robbing store w/the sole intent of
getting man arrested to get back at him for stealing his watch
8. Δ lacked the mens rea to indend to aid and abet, but Wilson does
have the mens rea to promote the crime of burglary
vi. State v. Etzweiler- Majority Δ let his car to drunk man who kills people
8. Δ not an accomplice b/c he had no intent to facilitate the
commission of the crime- one cannot be an accomplice to a crime
that has a negligent/reckless mens rea except in case where Δ gets
in car w/man and encourages him to drive faster and to continue to
do the conduct
vii. Some jurisdictions say its impossible to be an accomplice to a reckless
crime b/c need a mens rea of intent
j. Termination of Complicity under MPC
i. One can terminate complicity:
8. must be prior to commission of the offense AND
9. must wholly deprive it of effectiveness or give timely warning to
the police (The “MAN”)
k. Relations of the Parties in Complicity
i. Generally it is not necessary that the principal be charged, found, or
excused in order to charge the accomplice
ii. Sandy is sane and Lee is insane (thinks the devil is in people) Sandy tells
Lee that Terri has been making devilish comments and to kill him
8. Lee not guilty by insanity
9. Terri (accomplice who is guilty); purpose and mens rea to kill
10. 2 parties can be found guilty of different crimes
iii. Idea of Using an Innocent Agent to reach a particular result or commit a
8. Muni v. United States pg 880
a. Δ making false authorization for credit card who is causing
the conduct to be done by the bank who is not aware of the
b. Some Jurisdiction say the person who did not commit the
conduct he is the agent of the conduct and he should be the
c. Other Jurisdictions say find that he is an accomplice to a
crime even though the principal cannot be charged.
d. Now: whether say operation of innocent agent or if conduct
violated the statute and the accomplice intended the crime
to happen that is enough.
iv. Hypo:
8. Ian urges Olivia to kill Husband Desmond and leaves the gun to do
9. If Olivia took gun and intended to kill Desmond than Ian
10. He has intent, intends crime and did A
11. Here Olivia tries to unload gun and is startled by Desmond and
accidentally shoots him. She is not charged
12. Ian has mens rea of murder
13. Actus reus/Causation issue
a. Actus Rea of supplying the gun; she abandoned crime
Desmond might be guilty of attempt
b. Could still be an accomplice to murder even if murder did
not happen..
14. Ian actus rea and mens rea did not coincide
15. Most jurisdictions: Ian did not cause the death; the way in which
the death happened was not foreseeable
v. Analyzing a case where it is not a crime
8. Principal cannot be charged; generally not a barrier to charging
9. Parental Kidnapping: taking a child when a person does not have
legal custody (parent can’t be charged)
a. Can brother be charged if helped sister who has legal
custody of child, get child away?
b. If brother is guilty than can mother be an accessory.
c. Assume brother act is criminal and he is the principal than
why isn’t mother the accomplice?
i. Maybe she is.
ii. Clearly a reason though why legislature intended to
exclude parents as group. And an end run around it
would go against legislative intent.
l. Conspiracy
i. Agreement b/t 2+ parties to engage in a criminal act
8. most jurisdictions require that there must be an overt act (not
necessarily criminal) which is in “furtherance of the conspiracy”
9. some jurisdictions see the “agreement” as the overt act
10. Griffin v. State- co-conspirators don’t have to sit down and agree
to do something→actions can show an implied agreement
ii. Mens Rea for Conspiracy
8. Pinkerton Rule- Each conspirator may be responsible for acts of
every other conspirator done in furtherance of the conspiracy even
if they don’t have knowledge of what the others are doing (MPC
9. MPC for Conspiracy:
a. Definition of a Conspiracy- A person is guilty of
conspiracy w/another person(s) to commit a crime if w/the
purpose of promoting or facilitating its commission he
▪ agrees w/such other person(s) that they or one of
more of them will engage in conduct which
constitutes such crime or an attempt or solicitation
to commit such crime
▪ Rejects Pinkerton Rule
10. State v. Lauria- Δ ran an answering service and one of his clients
was a prostitute so tried to make him part of a conspiracy
a. Ct found Δ not part of a conspiracy b/c he lacked intent to
“further the conspiracy”
b. NOTE: Ct finds knowledge would be enough if it was a
serious felony- here this crime was a misdemeanor
11. State v. Gallishaw- Δ charged w/conspiracy to rob a bank
a. no evidence that Δ knew a bank was the target, so no
evidence he had entered into an agreement, or intended to
further the crime of robbing the bank so can’t part of
b. Δ could have been charged w/conspiracy to commit
12. US v. Feola- Minority Approach- SL for mens rea of target crime,
so SL for conspiracy
13. US v. Diaz- Δ doesn’t have a gun, no evidence that he has a gun,
no evidence that there was an agreement btn the parties about the
gun- only evidence about conspiracy to do drug trafficking- Δ gets
charged w/conspiracy to have a gun (which increases his sentence)
a. Ct uses Pinkerton rule- makes coconspirator responsible
for acts of another so long as those acts in furtherance of
the conspiracy (exception being unless the crime could not
be reasonably foreseen as a necessary or natural
consequence of the unlawful agreement)- but having a gun
is a natural and foreseeable consequence of drug trafficking
m. Prosecutorial Ethics (Janet Reno Lecture)
i. First duty of a prosecutor is to ensure that innocent people are not
charged- and ensure that the guilty are convicted according to due process
and fair play
ii. Objective should be to seek the truth, not just have a fair trial
iii. Biggest problem in exoneration cases is eyewitness ID-ing
8. another big problem is evidence is not handed over to prosecution
or defense- gives an incomplete picture
iv. Problem w/Snitches- there is a degree of unreliability in their testimonyCanada has a presumption that they are presumptively unreliable
v. Brady v. Maryland
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