Uploaded by samir.paul.commercial

Criminal Law Outline

Purposes of Criminal Punishment
a. Introduction
i. Crime = act (conduct; actus rea) + intent (requisite state of mind; mens
rea) – defense.
ii. Retributivism
1. Presupposes that human actors are responsible moral agents who
are capable of making choices for good and evil. People who
make evil choices deserve to be punished and serving a criminal
sentence is a way for offender to pay back to society for the harm
he/she has incurred.
2. Focus is on the retrospective criminal act and the harm offender
caused. Punishment is justified based on the moral culpability of
persons who violate the criminal law.
iii. Utilitarianism
1. Rests on the notion that human actions perform a calculus of pain
and pleasure when choosing among alternative courses of conduct
and if costs of crime are set high enough to assure that the gains
aren’t profitable then rational person won’t commit crimes.
2. Punishment is justifiable if and only if it’s expected to result in
a reduction in future crimes.
3. Special deterrence refers to steps taken to dissuade particular
offenders from repeating their crimes and general deterrence refers
to impact of criminal punishment on other persons.
a. Utilitarianism is associated with goals of deterrence,
incapacitation, and rehabilitation.
iv. Mixed System/Proportionality
1. The general aim of the criminal law is to deter unwanted
behavior but that retributive concepts should be applied in
determining whether and how much to punish a particular
a. For retributivist, punishment should be proportional to the
harm caused on the present occasion, taking into
consideration actor’s degree of culpability for causing the
b. For utilitarian, punishment is proportional if it involves
infliction of no more pain than necessary to fulfill the law’s
deterrent goal of reducing a greater amount of crime.
The Criminal Act/Conduct Requirement
a. Introduction
i. Conduct in some form (an act, omission, or possession) remains accepted
as an essential prerequisite of criminal conviction and punishment.
ii. The act requirement serves as a critical evidentiary function in
corroborating evil intent, limits the coercive power of the state, and
preserves the liberty of the citizen by constraining penal liability.
1. COL: a voluntary act is muscular contraction or bodily movement
that was controlled by the mind of the actor.
2. MPC 2.01: never defines voluntary but provides examples of
involuntary actions: reflex/convulsion, bodily movement while
unconscious or asleep, conduct during hypnosis, and/or a bodily
movement that otherwise is not a product of the effort or
determination of the actor, either conscious or habitual.
iii. To be guilty of an offense, it’s sufficient that person’s conduct included a
voluntary act and it’s not necessary that all aspects of his conduct be
voluntary (see below).
b. The Voluntary Act
i. Voluntary act is a very limited doctrine; cases that fall into this category
are limited to cases where there’s a true disconnect between the mind
and the body, e.g. robbing a bank under coercion falls under duress and
not involuntary act.
1. Martin v. State (AL COA 1944): appellant was convicted of being
drunk on a public highway after officers arrested him at his home
and took him onto the highway.
a. Plain terms of the statute presupposes a voluntary
b. Policy argument: we don’t want law enforcement agents to
promote crime (there’s defense of entrapment that one
committed the crime at the encouragement of law
enforcement people).
ii. MPC 2.01 on Voluntary Act (70).
1. Where there is an involuntary act embedded in an otherwise
voluntary course of conduct, MPC requires that liability be
based on conduct which includes a voluntary act (People v.
Decina: seizure not a complete defense when there’s the voluntary
act of driving with knowledge one was subjected to epileptic
seizures; People v. Gastello: drug taken to jail because D was
arrested and by coincidence had drugs on him; judge ruled that an
involuntary act was not sustainable as basis for conviction of
charges of bringing drugs to jail).
c. Omissions as Criminal Conduct
i. A person has no criminal law duty to act to prevent harms to another but
sometimes omission of a duty to act serves as a legal substitute for a
voluntary act when 1) the law defining the offense provides for it or 2)
if the duty to act is otherwise imposed by law (common law).
1. Status relationship: a person may have a common law duty to
prevent harm if she stands in a special relationship to the person in
peril such as parents to children, married couples, and masters to
2. Contractual obligation: a duty to act may be created by implied
or express contract
3. Creation of a risk: a person who wrongfully harms another or
places a person or property in jeopardy of harm has a common law
duty to aid the injured or endangered party
4. Voluntary assistance: one who commences assistance has a duty
to continue to provide reasonable aid
a. Includes voluntary assumption of responsibility that
precludes aid from others.
ii. No general duty to rescue. Why?
1. Line drawing problem (how much risks to take), chilling effect on
social activities, undermine altruistic impulses, coordination and
enforcement problem, problem of causation.
2. Proposed general duty statutes: requires minimal risk/expense,
limit liability to only one potential rescuer, limit to potential
categories of victims or types of injuries.
iii. Billingslea v. State (Ct. of Criminal Appeals of Texas, 1989): appellant
was charged with offense of injuring an elderly individual (failure to
obtain medical care) after Adult Protection Services found appellant’s
mother lying in bed suffering great deals of pain from bedsores. The
doctor stated that the bedsores, burns, blisters, and loss of muscle resulted
in serious bodily injury indicative of overall neglect of Mrs. Billingslea in
the months prior to her death.
1. Indictment is fundamentally defective for failing to include a
statutory duty imposing a punishable omission. Where other States
may imply duties or derive them from common law, under the laws
of Texas an offense based on omissions must rest on a specific
2. Since the court didn’t recognize legal duties derived from the
common law and since no one was assigned a statutory duty to
care for an elderly person (statute didn’t create a specific duty
on a specific category of people to protect elderly people from
injury so it’s assumed by the court that there isn’t a statutory
duty; the statute would have a very broad sweep if it were
interpreted to duty to protect old people), the omissions toward
elderly individuals under which the appellant was indicted is
3. Alternative theories of prosecution: parent-child relationship (not
even well established in common law), excluding others can be
deemed as a voluntary act (acts of isolation can create a basis for
rescue but Texas court can say that since it’s not in a statute).
iv. People v. Beardsley: a woman took morphine and D moved her to another
room upon the expected return of his wife; court ruled that just because
the woman was in D’s house created no such legal duty as exists in law
that is due from a husband towards his wife.
v. People v. Oliver: duty exists when D took the decedent from a public
place where others might take care to prevent him from injuring himself to
a private place where she alone could provide such care; D’s conduct
created an unreasonable risk of harm for decedent.
Criminal Act/Requirement that Offenses be Previously Defined
a. Vagueness Doctrine
i. Vague statutes are unacceptable because they deny a law abiding person
fair notice and they provide police and prosecutors the opportunity to act
in an arbitrary and discriminatory manner.
1. A statute isn’t invalid simply because it requires conformity to an
imprecise normative standard such as not to act negligently or not
to harm others by cruel or inhuman treatment.
2. Courts are much slower to hold that an ordinary criminal statute,
one that doesn’t touch on fundamental constitutional rights, is
unconstitutionally vague.
ii. Judicial scrutiny of the vagueness doctrine however is most rigorous
when the law in question impinges on constitutional rights such as
freedom of speech and press.
1. Kolender v. Lawson (SCOTUS 1983): Lawson was detained
roughly 15 times and convicted once under a California code
barring loitering and sought a declaratory judgment that 647(e) is
a. O’Connor (Majority): the provision contains a vague
enforcement standard that is susceptible to arbitrary
enforcement and it fails to give fair and adequate notice of
the type of conduct prohibited. Statute must establish
minimal guidelines to govern law enforcement.
b. Section 647(e) is presently drafted and construed by the
state courts to contain no standard for determining what a
suspect has to do in order to satisfy the requirement to
provide a “credible and reliable” identification. It’s clear
that the full discretion accorded to the police to determine
when the suspect has provided a credible and reliable
identification necessarily entrusts law-making to the
moment to moment judgment of policeman and it
furnishes a convenient tool for harsh and
discriminatory enforcement by local officials against
particular distasteful groups.
c. Although due process doesn’t require impossible standards
of clarity, this is not a case where further precision in the
statutory language is either impossible or impractical.
d. White (Dissent): the court’s narrowing of the credible and
reliable identification to identification that carries
reasonable assurance that the identification is authentic
can’t be likened to the standardless statutes involved in
other cases.
i. If Lawson himself knew about the statute, it’s not
vague as applied to him and he should be convicted.
ii. In responding to a statute that is vague as applied to
some cases but has a core of prohibited conduct, the
role of the court is not to strike the statute down but
to reverse unfair convictions.
e. ES: key to this doctrine is not about specificity of language
but need to look at subject matter and context in which
law is enforced; vagueness doctrine focuses on a
particular kind of law.
2. US v. Nash: Court upheld the Sherman Act against vagueness
challenge and court interpreted the “restrains of trade” in the
statute to mean undue restraint. Subject matter doesn’t involve the
basic kinds of liberties that vagueness doctrine typically focus on
and the case is not problematic especially given that context of
enforcement is a business context where both parties are lawyered
up already.
b. Interpretation of Prohibited Conduct in Criminal Statutes
i. Rule of lenity states that when a criminal statute is subject to conflicting
reasonable interpretations, that statute should be interpreted strictly against
the government. MPC doesn’t recognize the lenity principle and
requires instead that criminal statutes be construed according to their
fair import.
ii. Keeler v. Superior Court of Amador County (SC of CA 1970): Petitioner
kicked and killed a fetus in his ex-wife who was viable but not born yet so
the question is whether an unborn but viable fetus is a human being is
within the meaning of the California statute defining murder.
1. State urged the Court to adopt an evolving as opposed to a fixed
meaning of the term human being; State argues that common law
requirement of live birth to prove fetus had become a human being
is no longer in accord with scientific fact since unborn but viable
fetus is now fully capable of independent life.
2. Court disagreed and held that even though there was certainty that
the fetus has developed to the stage of viability, extensive review
of English cases and authorities revealed that an infant can’t be
subject of homicide at common law unless it had been born alive.
As early as 1797 it was held that child was born alive is necessary
to support an indictment for murder.
a. Chavez stood for the proposition that a viable fetus in the
process of being born is a human being within the meaning
of the homicide statutes but doesn’t hold that a fetus not in
the process of being born is nevertheless a human being.
3. The court then discussed enactment in NY but not in CA statues
specially directed against feticide and concluded that the omission
is important in that CA didn’t intend fetus to be included within the
meaning of human being.
4. Crime creation v. interpretation: unforeseeable state court
construction of criminal statute applied retroactively to subject
person to criminal liability for past conduct is to deprive him of
due process of law in the sense of lack of fair warning that his
contemplated conduct constitute a crime.
5. Dissent: homicide is the unlawful killing of a human being and
these words need not be frozen in place as of any particular time
but must be fairly and reasonably interpreted by the court to
promote justice and carry out purposes of the legislature in
adopting a homicide statute.
a. Previous decision in Chavez that held that a viable fetus in
the process of being born is a human being gave defendant
sufficient notice that words human being could include a
viable fetus.
6. Section 4 (purpose statement) was enacted with Sections 187 and
192 and provides that the lenity rule of the common law, that penal
statutes be strictly construed, has no application to this code. All
the provisions are to be construed according to the fair import of
their terms, with a view to effect its objects and to promote justice.
7. ES: court is concerned that defining viability as a human being
could have implications and this is very public policy centric issue.
Legislature could have included in the definitional section by
including fetus as a human being but separating the two (human
being and fetus) for purposes of murder avoids political
iii. People v. Davis (1994): California legislature amended the statute to
include fetus as part of its homicide statute but didn’t include definition of
a fetus. Davis killed the fetus that was likely not at the stages of viability
but court interpreted the statute to apply to killing of any unborn offspring
in the postembryonic period after major structures have been outlines.
However, court held that interpretation could only be applied
iv. People v. Sobiek (CA COS 1973): Respondent was indicted for four
counts of violation of CA Penal Code Section 487 (grand theft) but
maintained that the code can’t apply to a member of a group on the theory
that a partner may not steal nor embezzle the property of his partnership.
1. Court held that while it’s settled law that a general partner can’t be
convicted of embezzling partnership property because the rule
requires property be wholly that of another and a part interest by D
prevents a conviction, the rule was based on misinterpretation and
2. The broad rule has been rejected by ALI and MPC 223.0(7). It’s
both illogical and unreasonable to hold that a partner can’t steal
from his partners merely because he has an undivided interest in
the partnership property.
3. Respondent must have known his act was immoral and he was
taking property of another so common social duty would have
forewarned respondent that he was engaging in prohibited conduct.
4. ES: this was a mirror image of what the Keeler court did.
Court sees this as not creation of a new crime but viewed it as
closing a judicial loophole.
a. Keeler concerned political issues but Sobiek concerned a
clearly wrong loophole.
b. Court mostly apply rules of fair construction but
subject to constraints of separations of powers (not
defining new crimes) and fair notice.
i. Ultimately the court should ask itself whether
interpretation will settle the law or create more
Mens Rea – The Guilty State of Mind
a. The Common Law Approach
i. Stage I focused on strict liability. Stage II focused on the moral
blameworthiness. Stage III focused on cognitive state of wrongdoers.
Stage IV is MPC that laid out culpability levels.
ii. Regina v. Faulkner (1877): D poked a hole in a rum cask to drink but
destroyed the ship by fire when he lit up a match to see where to plug the
hole. He was indicted for arson on the charge that he feloniously,
unlawfully, and maliciously set fire to the ship.
1. State’s argument is that malicious purpose to steal the rum is
transferred to setting the fire (not saying there’s strict liability for
all crimes but moral blameworthiness).
2. Court decided that in order to establish the charge, D had to intend
to do the very act with which he is charged or that it was the
necessary consequence of some other felonious or criminal act in
which he was engaged, or that having a probable result which the
D foresaw or ought to have foreseen he nevertheless persevered in
such felonious or criminal act.
3. The prisoner didn’t intend to set fire to the ship and the fire wasn’t
the necessary result of the felony he was committing.
4. Fitzgerald: necessary intent requires 1) he intended to do the very
act he was charged, i.e. arson 2) harm of burning ship is a
necessary consequence of another act (shooting pilot and
passengers died) 3) D persevered in such criminal act even if it had
the probable result which one saw (recklessness) or should have
foreseen (negligence).
5. Minimum mens rea is negligence; shows transition between Stage
II to Stage III revolution of mens rea.
iii. Regina v. Cunningham (1957): Appellant stole a gas meter and the gas
escaped and poisoned the neighbor; Cunningham is charged under a
poison statute (using the same language of unlawfully and maliciously like
1. Court held that malice must be taken not in vague sense of
wickedness in general but as requiring either an actual intention to
do the particular kind of harm that in fact was done or recklessness
as to whether such harm should occur or not (accused has foreseen
that the particular kind of harm might be done and yet has gone on
to take the risk of it).
2. Cunningham states then negligence isn’t enough and recklessness
ought to be the standard here.
iv. Directors of Public Prosecutions v. Smith (1960): Policeman was killed
when Smith rapidly accelerated the car while the police grabbed onto it.
1. Smith wanted the Court to pose to the jury what the respondent
himself intended as opposed to what a reasonable man intended.
Court stated that the sole question is whether the unlawful and
voluntary act was of such a kind that grievous bodily harm was the
natural and probable result to an ordinary responsible man.
2. Convicted of capital murder even though he didn’t realize the risk.
b. Criminal Negligence
i. Criminal negligence is frequently described as an especially egregious sort
of callousness, usually characterized by conduct that represents a gross
deviation from the standard of reasonable care.
ii. Criminal negligence involves inadvertent risk-taking that as a reasonable
person should have been aware of the substantial and unjustifiable
risk but recklessness implicates subjective fault and one’s consciously
disregarding the substantial and unjustifiable risk.
iii. If the mens rea is recklessness, prosecutors can tell juries to draw
inferences from circumstances (almost incorporating a negligence
1. If standard for particular offense is negligence then presumption is
irrefutable (must conclude D foresaw the probable harm). Under
reckless standard, D get the opportunity to say D didn’t foresee the
consequences even if reasonable persons would have foreseen the
a. Defense strategies would be different: negligence (D align
herself with reasonable person under circumstances) v.
recklessness (reasonable person couldn’t have foreseen OR
subjectively couldn’t have foreseen the risks of harm).
c. Common Law Definitions: General and Specific Intent
i. General intent crimes are everything but the specific intent crimes.
1. General intent crime (poison, arson, rape, assault) are crimes in
which the harm of offense is contained in the conduct.
2. General intent crime has a standard of recklessness or
ii. Specific intent crimes requires D engage in specified conduct with the
intent to bring about a specified result that will occur in the future.
1. The paradigm example of a specific intent crime is an offense
where definition describes specific behavior in which D must
engage and further specifies a particular state of mind which must
accompany that behavior.
2. Intentionally: it was her conscious object to cause the result or if
she knew that the harm was virtually certain to occur as the result
of her conduct.
3. Knowingly: aware of the fact, correctly believes it exists, suspects
it exists and purposefully avoids learning if her suspicion is
4. Recklessness: if she consciously disregards a substantial and
unjustifiable risk of harm.
5. Criminal negligence: if she should be aware that her conduct
creates a substantial and unjustifiable risk of harm.
a. Actus Reus
i. The act elements are characterized as conduct, result, and
circumstances. Most offenses are defined only in terms of conduct and
1. Every offense must contain some conduct as so defined (can be act
or omission).
2. Result elements are any consequences of D’s conduct that are
incorporated in the definition of the offense.
3. Circumstance elements consists of external facts that must exist in
order for crime to be committed.
b. Mens Rea
i. MPC removes the clutter of common law and statutory mens rea terms and
replaces them with four carefully defined terms: purposely, knowingly,
recklessly, and negligently.
1. 2.02(1) requires that a level of mens rea, purpose, knowledge,
recklessness, or negligence be applied to each conduct,
circumstance, and result element of the actus reus of an offense.
2. 2.02(3): if culpability isn’t prescribed, then such element is
established if a person acts purposely, knowingly or recklessly
with respect thereto.
3. 2.02(4): when the law defining an offense prescribes culpability
without distinguishing among the material elements, such
provision shall apply to all material elements, unless a contrary
purpose plainly appears.
ii. Purposely
1. Result or conduct: a person acts purposely if his conscious object
to engage in conduct of that nature or to cause such a result.
2. Attendant circumstances: aware of the existence of such
circumstances or believes or hopes they exist (knowledge that
circumstances exist).
iii. Knowingly
1. Result: if the actor is aware that it is practically certain that his
conduct will cause such a result
2. Attendant circumstances and conduct: aware that his conduct is
of that nature/kind or aware that such attendant circumstances exist
(or if he is aware of high probability of its existence unless he
actually believes that it doesn’t exist).
iv. Recklessly
1. When he consciously disregards a substantial and unjustifiable risk
that the material element exists or will result from his conduct.
2. 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, his disregard involves a gross deviation from the
standard of conduct that a law-abiding person would observe in the
actor’s situation
v. Negligently
1. When he should be aware of a substantial and unjustifiable risk
that the material element exists or will result from his conduct.
2. The risk must be of such a nature and degree that, considering the
nature and purpose of his conduct and the circumstances known to
him, his failure to perceive it involves a gross deviation from the
standard of care that a reasonable person would observe in the
actor’s situation.
Mistakes of Fact
a. A mistake of fact is a defense for specific intent crime if it shows that the required
specific intent didn’t exist, namely that it’s honestly made (regardless of
reasonableness). A mistake of fact is a defense to general intent crime if it’s
honest and reasonable, that is if the D actually made the mistake and if the
mistake was reasonable under the circumstances.
i. Green v. State (Texas 1949): D shot several hogs and carried them home
but was charged with larceny; however, the key question is that despite
committing the actus reus of taking and carrying away the personal
property of another, whether D had the intent to permanently deprive the
other of the property. If D honestly thought the hogs were his, he would be
entitled to acquittal.
ii. State v. Walker (NC 1978): D and his son abducted two children under the
mistaken belief that they were D’s grandchildren but one of the children
wasn’t. D was charged with child abduction and court held that in
appropriate cases in order to negate criminal intent, the mistake under
which D was acting must have been made in good faith and with due care.
iii. US v. Oglivie (1990): Appellant thought he had divorced his wife when he
married his second wife but the divorce wasn’t final. Court held that
appellant wasn’t guilty of false statement offense (specific intent crime)
because he had the defense of an honest mistake of fact. However, Court
found that he was guilty of bigamy (general intent crime) because to
constitute a defense a mistake of fact must be both honest and reasonable
and appellant didn’t take the steps a reasonable man would have taken to
determine the validity of his honest belief.
iv. US v. Yermian (1984): D was charged under federal statements offense, a
specific intent crime but his defense of mistake of fact was not related to
the specific intent but rather to the elements of the offense (matters fall
within jurisdiction of department or agency of US) so if mistake of fact
was relevant to an element of the offense other than the specific intent, the
courts followed the rule for general intent and the question was whether D
honestly and reasonably believed that the lies didn’t implicate the interests
of the federal government.
b. Grading
i. Grading offense is seriousness of the crime but not to its criminality; e.g.
theft is felony if value is above some amount ($500 for MPC) and lesser
crime if below that value.
1. Strict liability to grading element so no defense of mistake of fact
as the defense is for the innocent party. This is a vestige of Stage II
mens rea.
2. Moral wrongs
a. Regina v. Prince (1875): D thought the girl he took was 18
but she was only 14 and law forbids people to take an
unmarried girl under the age of 16. Court convicted D even
though D had a valid mistake of fact defense based on the
fact that the conduct was morally wrong in itself.
i. Rationale: he knew they were going off without
father’s permission and it’s important to protect
young women from men who take them away from
the safety of their home; it would be a defense if he
made an honest and reasonable mistake as to the
permission of the father.
ii. Sometimes a court will convict a D even though her
mistake of fat was reasonable if her conduct violates
the moral wrong doctrine (no exculpation for a
mistake where if facts had been as the actor
believed them to be, her conduct would be immoral
albeit legal). By knowingly committing a morally
wrong act, actor assumes the risk that facts are not
as she believed them.
c. Mistake of Fact under MPC
i. If an offense requires a prescribed mental state for a given element, it’s a
defense if D didn’t have that mental state (negates the mens rea).
1. First, figure out which element of offense is mistake related to,
what culpability level is applied to that material element, and did
mistake negate the required mens rea?
a. Rape: submit by force and no mens rea so culpability
required is recklessness. Negligent mistake is a defense
under MPC but not common law.
Mistake of Criminal Law
a. Ignorance of the law excuses no one. Ignorance or mistake regarding criminality
of one’s act is ordinarily no defense to criminal prosecution. MPC 2.02(9)
continues this tradition.
i. Three categories of mistake-of-law exceptions are recognized. The first
two (reasonable reliance and fair notice) are excuse defenses and the third
exception is failure of proof claim, namely that D didn’t have the requisite
mens rea to be convicted of the offense to be charged because of mistake
of law.
ii. State v. Fox (SC of ID 1993): D bought ephedrine but didn’t know it was
a controlled substance in Idaho. The statute in question doesn’t contain an
intent element and Fox wants to argue the statute requires specific intent
while State argues that it only requires general intent.
1. Court held that the statute doesn’t require any mental element, that
only general intent is required and hence knowledge that one is in
possession of substance is enough to uphold the conviction. Fox’s
lack of knowledge that ephedrine was illegal is irrelevant.
2. Ignorance of the law isn’t a defense and there is no indication that
D couldn’t have discovered what substances were listed in the
schedules of controlled substances.
iii. Application of the Maxim
1. People v. Marrero: D’s personal misunderstanding of the statutory
definition of peace officer isn’t enough to excuse him from
criminal liability for carrying a weapon (court rules that exception
for peace officers only apply when possession is duty-related).
2. Hopkins v. State: D was convicted under anti-sign law even after
receiving assurances from a state’s attorney that it wouldn’t violate
the law. A person who commits an act which law declares to be
criminal can’t be excused from punishment upon theory he
misconstrued or applied the law.
3. State v. Striggles: D was convicted for installing a gambling
machine even though the distributor got letter from county attorney
and mayor that the machine isn’t a gambling device and there was
a decree from lower court that it wasn’t a gambling machine.
b. Reasonable Reliance
i. One is never excused for relying on a person, even reasonable misreading
of a statute and reliance on erroneous legal advice is not a defense either.
1. Cox v. Louisiana (entrapment): After receiving several
reassurances from the highest police officials, D was nevertheless
convicted of violating a statute that punishes one who pickets near
a building. Court reversed and held that to sustain the conviction
would be to sanction an indefensible sort of entrapment by the
c. Fair Notice
i. Court held in Lambert v. California that under very limited
circumstances, a person who is unaware of a duly enacted and published
criminal statute may assert a defense in mistake of law. Court’s
concerned with statutes that punish an omission, the duty to act was
imposed on the basis of status (as opposed to activity) and offense was
malum prohibitum so there was therefore nothing to alert L or a
reasonable person to the need to inquire into the law.
1. Lambert v. California: LA had a city ordinance that required all
felons to register if they stay in LA for longer than 5 days and D
failed to register. Violation of provisions is unaccompanied by any
activity whatever, mere presence in the city being the test.
a. Three factors: unknown offense criminalizes an omission
(failure to register), duty to act based on status condition
rather than conduct (presence of an ex-felon in LA), and
offense is malum prohibitum in nature.
d. MPC
i. 2.04 states that belief that conduct doesn’t legally constitute an offense is a
defense if the statute or other enactment defining offense isn’t known to
the actor and hasn’t been published or otherwise reasonably made
available prior to conduct alleged OR he acts in reasonable reliance
upon an official statement of the law (statute, judicial decision,
administrative order, official interpretation of the body charged).
VIII. Mistake of Non-Criminal Law
a. Sometimes D’s lack of knowledge or misunderstanding regarding the meaning or
application of another law, typically a nonpenal law, will negate the mens rea
element in the definition of criminal offense. A different law mistake is generally
not a defense to general intent crime but is defense for specific intent crime.
b. Common Law
i. If the offense required a specific intent or some other special mental
element, a mistake of the non-criminal law that negated the required mens
rea is a defense (mistake of fact context). The usual rule is that no
mistakes of law (criminal: marrying multiple wives and non-criminal: got
a divorce in Nevada and returned to Vermont) are exculpatory for general
intent crimes.
ii. Long v. State: D obtained a divorce in Arkansas and moved back to
Delaware and remarried after receiving several reassurances from his
lawyer that he was free to do so. Court held that an honest mistake of law
is usually not held to excuse the conduct but found an exception because
D was a model citizen who diligently tried to follow the law.
c. MPC
i. In contrast to common law, MPC 2.04(1)(a) treats mistakes of noncriminal law the same as mistakes of fact throughout all levels of
culpability. Both are defense if they negate a required mens rea
element. Mistakes of fact or law is a defense if it negates the mens rea.
1. People v. Bray: D was convicted for possessing two concealed
firearms but he didn’t know the offense he was convicted before
was a felony or not, which would decide whether he could carry
the weapons. Court decided that Bray was entitled to common law
rule on mistake of fact for general intent offenses.
a. Voluntary intoxication isn’t a defense to general intent crimes but is a defense to
specific intent crimes (varies, see below).
b. MPC: a person isn’t guilty of an offense if as the result of intoxication he lacked
the state of mind required in respect to an element of the crime. Exception: for
crimes defined in terms of recklessness, MPC 2.08(2). provides that if a person
due to self-induced intoxication is unaware of risk which he would have been
aware had he been sober, such unawareness is immaterial in a prosecution
for which recklessness establishes criminal liability. So if D is charged with an
offense for which recklessness suffices to convict, she can’t avoid conviction by
proving that because of intoxication she was unaware of the riskiness of her
conduct. So even if D’s actual culpability is that of negligence, she may be
convicted of an offense requiring recklessness if the reason for her failure to
perceive the risk is her self-induced intoxication.
c. Specific Intent and Intoxication
i. Restrictive Positions
1. No Defense: In at least 11 states, evidence of intoxication is not
admissible in any or most specific intent crimes.
a. VA held that voluntary drunkenness, where it hasn’t
produced permanent insanity, is never an excuse for crime
except where a party is charged with murder and accused
too drunk to be capable of deliberating and premeditating..
2. Factual Relevance v. Lack of Capacity
a. California charge allows jury to consider his state of
intoxication in determining if D had the specific intent
whereas Ohio charge instruct juries to investigate whether
D was capable of forming the intent (only extreme
intoxication precludes intent)
i. Burden of Persuasion
1. As many as half of the states adopt the Ohio
charge and typically they also follow
practice of placing burden of persuasion on
3. ES: intoxication tend to be introduced for specific intent crimes,
but for general intent crimes intoxication isn’t relevant when
negligence is standard and when it’s recklessness, there’s a special
rule that ignores that.
d. General Intent Crimes
i. Director of Public Prosecutions v. Majewski (House of Lords 1976):
Appellant was drunk and stoned and physically injured the landlord when
he was asked to leave and hurled abuses at the police when it arrived.
Lower court decided that whether D had taken drink or dugs was
immaterial with regards to a general intent crime.
1. Judges have developed a rule for the purpose of protecting the
community that in crimes of basic intent as distinct from crimes of
specific intent, self-induced intoxication provides no defense and is
irrelevant to offenses of basic intent such as assault.
2. This is consistent with MPC 2.08(2), unawareness in immaterial if
it’s due to self-induced intoxication and recklessness establishes an
element of offense.
3. A mind rendered self-induced insensible (through drink or drugs)
to the nature of a prohibited act to probably consequences is as
wrongful a mind as one which consciously contemplates the
prohibited act and foresees its probable consequences.
4. ES: if not allowed to introduce evidence to show he wasn’t
reckless, then recklessness reduced to negligence?
a. This isn’t a SL rule: UVA case where D was successful in
acquitting, he claimed an honest and reasonable person
would have made the same mistake. Special MPC rule
reduces mens rea from recklessness to negligence but an
honest and reasonable defense will work for a D.
Establishing the Appropriate Mens Rea Standard
a. Strict liability offenses are crimes that don’t contain a mens rea requirement
regarding one or more elements of the actus reus (statutory rape).
i. Two lines of strict liability doctrines: one involving regulatory or public
welfare offenses whereas another line involved crimes that concerned
serious offenses which carried high moral stigma and high penalties.
ii. Notwithstanding the presumption against strict criminal liability, courts
frequently authorize it in the case of public welfare offenses because a
single violation usually injure a great number of people to serve the
collective interests and the penalty for violation is relatively minor,
and the offense typically involve malum prohibitum conduct (conduct
that is wrongful only because it is prohibited).
iii. MPC abolishes strict liability except as to violations.
b. US v. Dotterweich (SCOTUS 1943): D was president and GM of a company that
shipped drugs under a new label and was convicted for misdemeanor for shipping
adulterated and misbranded drugs.
i. Hardship may be under a statute which penalizes the transaction though
consciousness of wrongdoing be totally wanting but balancing relative
hardships, Congress has preferred to place it upon those who have the
opportunity of informing themselves of existence of conditions imposed
for protection of consumers before sharing in illicit commerce than to
throw the hazard on innocent public.
ii. Law and economics, head of company was in a better position to avoid the
harm than the public, least cost avoider.
c. US v. Park (SCOTUS 1975): Park was CEO of Acme Markets, a national retain
food chain and he was charged with five violations of FDA Act based on
shipments of food that had been contaminated by rodents. Park maintained he
was assured that appropriate company officials responsible for sanitation were
dealing with the problems.
i. Managerial officers’ liability didn’t depend on their knowledge or
personal participation in the act made criminal by the statute. The
responsibility placed on corporate agents are demanding but no more
stringent than the public has a right to expect those who voluntarily
assume positions of authority in business enterprises whose services and
products affect the health and wellbeing of the public that supports them.
ii. Court has reaffirmed the proposition that the public interest in the purity of
its food is so great as to warrant the imposition of the highest standard of
care on distributors. Place responsibility for federal executives to know or
should know the (imputed notice) regulations themselves.
iii. The theory upon which responsible corporate agents are held criminally
accountable for causing violations of the Act permits a claim that a D was
powerless to prevent or correct the violation to be raised defensively at a
trial on the merits.
d. United States v. Freed (SCOTUS 1971): Ds were indicted for possession of
unregistered hand grenades in violation of a federal statute; unlawful to receive
or possess a firearm that isn’t registered to the person charged.
i. The presence of a vicious will or mens rea was long a requirement of
criminal responsibility but the list of exceptions grew especially in
expanding regulatory area involving activities affecting public health,
safety, and welfare.
ii. Act requires no specific intent that the hand grenades were unregistered.
This is a regulatory measure in the interest of public safety, which may
well be premised on the theory that one would hardly be surprised to learn
that possession of hand grenades is not an innocent act.
iii. Concurrence: while Court hold that no intent at all need to be proved in
regard to one element of the offense (unregistered status of the grenades),
knowledge must still be proved as to the other two elements (possession of
items that are hand grenades). Without exception, the likelihood of
governmental regulation of distribution of grenades is so great anyone
must be presumed to be aware of it; it’s reasonable to conclude that
Congress dispensed with requirement of intent with regards to the
unregistered status of a weapon.
iv. One way of framing the Freed rule is that it’s appropriate to use strict
liability where potential social harm is great and context as known to
D should give adequate notice that behavior is wrong.
v. ES: majority opinion isn’t very convincing but the concurring opinion
about Ds getting advance notice that government would be interested in
regulating of certain behavior is more convincing.
e. Staples v US (SCOTUS 1994): D was convicted for owning a machinegun but
testified that the rifle had never fired automatically when it was in his possession
and that the AR-15 only operated semi-automatically.
i. Statute required that the D know the weapon was a machine gun, namely
that it was capable of firing repeatedly with a single pull of the trigger.
ii. Section 5861 is silent on the mens rea required for a violation and we must
construe the statute in light of the background rules of common law in
which some mens rea requirement is firmly embedded.
iii. Despite their potential for harm, guns generally can be owned in perfect
innocence. The potentially harsh penalty of up to 10 years of
imprisonment confirm reading of the Act because imposing severe
punishments for offenses that require no mens rea would seem
iv. We essentially have relied on the nature of the statute and particular
character of the items regulated to determine whether congressional
silence concerning the mental element of offense should be interpreted as
dispensing with conventional mens rea requirements.
v. Dissent: public welfare offenses render criminal a type of conduct that a
reasonable person should know is subject to stringent public regulation
and may seriously threaten the community’s health or safety; character
and nature of such a weapon is sufficiently hazardous to place possessor
on notice of possibility of regulation.
f. US v. Yermian (SCOTUS 1984): D lied about his employment history and
criminal record on a security questionnaire and his defense was that although he
had intentionally made false statements, he didn’t know his statements would be
transmitted to a federal agency.
i. Court classified the federal department language as a jurisdictional
element and jurisdictional language need not contain the same culpability
requirement as other elements of the offense.
g. MPC
i. The only exception to the requirement that some level of culpability is
required for some elements of the offense is statutory rape. It’s not defense
that D didn’t know the age and that D reasonably believed the girl to be
over age of 10. MPC excludes even a non-negligent mistake which means
SL applies to that element.
ii. There are malum in se cases where there’s strict liability as to some
element: Prince (taking young girl away from father; rationale is that the
conduct is immoral and Prince knew he was doing something wrong).
a. Actus Reus
i. Attempt is defined chiefly by reference to the object offense such as
attempt to commit murder rape, larceny or some other substantive offense.
ii. Challenge is to determine when there’s enough conduct to convict the
crime. Conduct fulfills evidentiary function, protective of autonomy that
people should be allowed to daydream and only have they substantially
moved towards completion of the crime should the law intervene.
1. Tests
a. Physical proximity test: many courts have emphasized the
physical proximity of the actor’s conduct to the completed
offense. The focus is not on what has already been done but
on what yet remains to be done. The actor’s separation
from the criminal objective, whether in terms of time,
distance, or necessary steps not yet taken becomes the
critical factor.
i. In People v. Rizzo, court in NY reversed conviction
against Ds for robbery because they had not found
or reached the presence of the person they intended
to rob and therefore not very near to the
accomplishment of the crime.
b. Dangerous proximity test: Holmes’s standard isn’t
satisfied unless conduct is so near to the result that the
danger of success is very great. Three factors: nearness of
the danger (probability that conduct would result in the
intended offense), substantiality of the harm, and
degree of apprehension felt.
c. RIL (silent film) test: Salmond’s inquiry looks to what the
actor has already done rather than what remains to be done.
The inquiry isn’t to assess the dangerousness of the
anticipatory conduct but on the dangerousness of the actor
who engaged in it.
i. RIL requires that the act speaks for itself and
demands manifest evidence of the actor’s
blameworthiness. Ask on the basis of conduct
committed to see if conduct is sufficient to show
unequivocally, unambiguously manifesting a
criminal purpose.
ii. RIL doesn’t allow the government to piggyback the
conduct to the intent.
d. MPC
i. MPC 5.01(1)(c) states that conviction for attempt is
allowed where actor engages in an act or omission
constituting a substantial step in a course of
conduct planned to culminate in his commission of
the crime. Conduct shall not be held to constitute a
substantial step unless it is strongly corroborative
of the actor’s criminal purpose.
ii. MPC broadens liability for attempt and MPC’s
rationales for conduct requirement are the same as
RIL as both standards seek to ensure that the
existence and firmness of the actor’s criminal
purpose are substantiated by objectively
demonstrable conduct.
iii. MPC includes a list of conduct that in each
instance is precursor leading up to the crime and
could be the basis of conviction of attempt; list of
examples are cases where common law courts have
found insufficient.
iv. Conduct might be ambiguous standing alone but
under MPC if conduct corroborates criminal intent,
then conduct itself would be satisfied.
2. People v. Bowen and Rouse (COA of MI 1968): Ds were found in
the rear of the house with the old lady’s bedroom drawers all
drawn out and her jewelry found in various places of the house. Ds
were charged with attempt to commit larceny in a building.
a. The jury could convict the Ds of attempted larceny the
elements of which are a felonious intent to commit larceny.
The trial judge failed to charge the jury at all concerning
necessity of finding an overt act and instead charged that
jury could convict if it found that D went to lady’s house
with intention to commit larceny.
b. D’s coming to or entry of lady’s house was not an overt act
under the circumstances that Ds had rightfully been in the
house on prior occasions and were admitted to the house on
the night in question. Where entry or attempted entry upon
victim’s premises has been held an overt act, such entry has
been without permission or D came armed with burglary
c. Conduct isn’t just to corroborate the criminal intent but
must independently demonstrate the resolute commitment
to the criminal purpose.
d. His acts must be unequivocally referable to the commission
of the specific crime. They must speak for themselves and
if the acts taken by themselves are unambiguous and can’t
in reason be pointing to any other tend than commission of
specific crime, then that constitute a sufficient actus reus.
3. US v. Harper (9th Cir. 1994): Harper and company were found
with weapons and robbery tools and were convicted with
attempted bank robbery. Harper who had previously worked for
BOA set a bill trap and waited for the technician to arrive so they
can rob the vault.
a. Court agreed there was sufficient evidence to find intent to
rob BOA but Ds hadn’t taken a substantial step towards
commission of the offense.
b. The actual embarkation of the robbery lay as much as 90
minutes (the normal response time for ATM service
technicians) away from the time when Harper left the
money; there was no actual movement toward the bank and
there’s a substantial difference between this cause, causing
a bill trap, which will result in the appearance of potential
victims, and moving toward such victims with gun and
mask as in Moore.
c. ES: court applies the proximity test and underscores the
motion and claimed that waiting isn’t insufficient when it is
supposed to apply the MPC.
4. US v. Gladish (7th Cir.): D is convicted for knowingly attempting
to entice a person under 18 to negate in criminal sexual activity.
a. D and an undercover agent had agreed in a chat room to
have sex and in subsequent chat he discussed the possibility
of traveling to meet her in a couple of weeks.
b. The substantial step towards completion is the
demonstration of dangerousness; you have to do something
that makes it reasonably clear that had you not been
interrupted or made a mistake you would have completed
the crime.
c. The substantial step can be making arrangements to meet
the girl as by agreeing on a time and place; it can be taking
other predatory steps such as making hotel reservation,
purchasing a gift or buying a train ticket.
d. In Goetzke, D was convicted but in that case given their
prior relationship and what D knew of the victim and their
circumstances, the most substantial steps realistically could
be taken were to communicate his affections and carefullycrafted incentives for the victim.
e. Here there was harmless banter and there was no indication
D would travel to North Indiana nor did he invite her to
meet him in southern Indiana; here D may thought that he
was enacting a fantasy and treating obscene speech as the
substantial step would abolish any requirement of a
substantial step.
f. ES: court applied MPC test and asked whether that conduct
is substantial step that strongly corroborates his criminal
intent. Judge Posner said no even though there were similar
steps as in Goetzke because the latter case conformed with
grooming prospective victims as opposed to a way to have
fun in the chat room. Courts looking at the conduct but
certainly looking at the intent too; the stronger the intent,
the more likely a court is going to find the conduct
corroborating the intent.
5. People v. Adami (Cal. 1973): D hired a hitman to get rid of his
wife, gave the undercover agent $500 deposit and a picture of his
wife as well as details about her and her possible whereabouts.
a. Court refused to convict the D because neither the D nor
the undercover agent had taken direct steps coming
dangerously close to the commission of the contemplated
crime, there was at most preparation and not a criminal
attempt. Difficulty of securing attempt convictions in such
situations led to the fairly widespread enactment of
independent crimes of criminal solicitation (MPC 5.02).
b. Mens Rea of Attempt
i. State has to prove the purpose to commit that crime under common law
and MPC rather than culpability for the object offense which may very
well be recklessness. If the harm actually happens, then mens rea of
recklessness will suffice under common law and MPC.
1. Attempt is a specific intent offense even if the target crime is
general intent. Actor must commit the actus reus of an attempt with
the specific intent to commit the target offense.
ii. MPC complete attempts are 5.01(1)(a-b) and incomplete attempts are
5.01(1)(c). Conduct crimes are handled by 1a whereas results are
considered in 1b. Mens rea is purpose, person not guilty of attempt unless
he purposely engages in conduct that would constitute crime (a), acts with
the purpose of causing or with the belief that it will cause (1b) or
purposely does an act constituting a substantial step (1c). Purpose is
required for conduct and result. Attendant circumstance: guilty of attempt
if acts with the kind of culpability otherwise required for commission of
the target crime.
1. MPC 5.01 that defines attempt departs from the common law
position that a specific intent is required for all elements of the
offense attempted. MPC requires a purpose to engage in the
conduct and result elements of the object offense but the mens
rea for the circumstance elements would be the same as would
be required were the offense completed.
iii. Majority Rule:
1. Thacker v. Commonwealth (1922): D passed around a tent and
fired three shots at the light inside the tent with two shots that
barely missed the lady sleeping inside. Court held that to do an act
from general malevolence is not an attempt to commit a crime
because there is no specific intent. To commit murder one need not
intend to take life but to be guilty of an attempt to murder, he must
so intend.
iv. Minority Rule
1. People v. Thomas (SC of CO 1986): D was convicted of attempted
reckless manslaughter after he fired shots at someone who
allegedly raped D’s ex-gf. Object offense carries over.
a. Lower court held that recklessness is a mental culpability
which is incompatible with the concept of an intentional
act. Attempted reckless manslaughter requires that the
accused have the intent to commit the underlying offense of
recklessness manslaughter. It’s the intent to engage in and
complete the risk-producing act and doesn’t include intent
that death occurs even though the underlying crime,
reckless manslaughter, has death as an essential element.
b. Culpability for criminal attempt rests primarily upon
actor’s purpose to cause harmful consequence. Statute
doesn’t require a conscious purpose to achieve proscribed
results so criminal attempt is not a specific intent crime.
Although a difference in degree of moral culpability of
actor might be perceived between knowingly achieving a
proscribed result and recklessly accomplishing it, we now
conclude that the difference in potential for future danger
isn’t significant enough to justify a different result (only
requires recklessness for attempt to commit reckless
c. Court is saying those who recklessly aim the gun very close
to someone is as culpable as someone who aims at someone
and missing. ES: overwhelmingly legislatures treat these
two acts differently; if the harm isn’t caused the law tends
to be quite forgiving, then perhaps the conduct isn’t as
dangerous as it seemed.
v. Grading
1. Common law: attempts were treated as minor crimes because
common law was focused on the harm.
2. MPC and most modern statutes: attempt is the same level of
offense as the object crime (burglary and attempted burglary are
both second degree felonies). Trend is towards narrowing the gap
between object offense and attempt.
c. Impossibility
i. Pure legal impossibility is a defense while factual impossibility and hybrid
legal impossibility are not. Many states have followed MPC in abolishing
the legal impossibility because the people who are acquitted on the ground
of legal impossibility are just as dangerous and culpable and distinction
between factual and hybrid is largely non-existent.
ii. People v. Dlugash (COA of NY 1977): D shot at victim’s body after D’s
friend fired shots into the body first.
1. Question centers on whether an individual should be liable for an
attempt to commit a crime when unknown to him it was impossible
to successfully complete the crime attempted.
2. The basic premise of MPC is that what was in the actor’s own
mind should be the standard for determining his dangerousness to
society. It is no defense that the crime was factually or legally
impossible of commission. There is sufficient evidence in the
record from which the jury could conclude that D believed victim
to be alive at the time D fired shots. Jury convicted D of murder so
necessarily they found that D intended to kill a live human being
and jury necessarily found that D believed victim to be alive when
D shot at him. NY abolished the impossibility defense following
the MPC approach.
3. It’s not clear and the state can’t prove that D caused the death of
the human being so he’s not charged with murder but charged with
attempted murder. Legal impossibility (there’s some legal attribute
of the situation that makes it impossible to commit the crime) is a
defense whereas factual impossibility isn’t a defense (actor can’t
complete the crime because of unknown physical or factual
conditions). ES: distinctions don’t make a lot of sense.
iii. MPC 5.01(1) is based on the premise that criminality should be judged
from the circumstances as D viewed them. Provisions of 5.05(2) and 2.12
permit the grade of the offense to be reduced or in extreme cases the
prosecution to be dismissed when the actor’s conduct is so inherently
unlikely to result or culminate in the commission of a crime that neither
such conduct nor the actor presents a public danger. This is defended on
the ground that most Ds in impossibility situations have demonstrated
their readiness to violate the criminal law, have manifested the
required culpability, and have posed sufficient social danger to justify
the invocation of criminal sanctions.
1. Example: lady tried to avoid duty on a seemingly expensive but
ordinary jewelry piece; suggests a category of cases where one
might be concerned because there is no culpable conduct
(important to have some culpable conduct). ES: we want to make
sure that the conviction isn’t just resting on her confession and
intent, there has to be some culpable conduct.
2. True legal impossibility: buying marijuana thinking it would be
criminal when in fact it would be legal, there’s no culpable
conduct, if the conduct isn’t a crime it won’t be turned into a
crime just because D thinks it’s a crime.
iv. ES: MPC expands the scope of liability for convicting attempts:
requires substantial step (as opposed to proximity), grading of
attempt as a much more serious crime, near abolishment of
impossibility defense, treating mens rea of circumstance element as
object offense as opposed to knowledge.
d. Abandonment of Attempt
i. CL doesn’t recognize abandonment of attempt but MPC recognizes it
(voluntary and not because of increased probability of getting caught;
delaying the criminal attempt into later time doesn’t count).
1. In MPC (substantial step), there seems to be some distance
between the attempt of conduct and when conduct will be complete
so there’s sufficient room for Ds to get cold feet and abandonment
makes sense. But in CL (proximity test), attempt requires almost
completing the attempt so there’s not much space between
committing attempt and the object offense.
ii. MPC recognizes abandonment as a defense if the conduct manifests a
complete and voluntary renunciation of her criminal purpose.
iii. Ross v. Mississippi (SC of MS 1992): D was attempting to rape and
walked away after victim said she had a young daughter coming home
from school. D argued that he made a voluntary and independent decision
while the state claims that D panicked.
1. MS attempt statute requires that failure to consummate result from
extraneous causes so D’s voluntary abandonment may negate a
crime of attempt.
2. Abandonment occurs where with no physical resistance or external
intervention, the perpetrator changes his mind. At the other end,
perpetrator can’t claim he abandoned his attempt when he ceased
efforts because the victim or a third party intervened or prevented
him from furthering the attempt.
3. Here, D voluntarily abandoned his attempt and no evidence shows
that D panicked and hastily drove away.
a. Murder
i. Early common law definition of murder was killing with malice
forethought. By 18th century, murder was divided into FDM and SDM,
and manslaughter divided into voluntary (heat of passion upon
provocation) or involuntary (reckless or negligence). Intent to kill was not
necessarily required (indifference to murder) and intentional killing could
be manslaughter.
ii. Common law definition of murder is a killing of human being by
another human being with malice aforethought. Person acts with
malice if she kills a person with any one of the four mental states:
intention to kill a human being, intention to inflict grievous bodily
injury on another, extremely reckless disregard for the value of
human life (depraved heart murder) or intention to commit a felony
during the commission or attempted commission of which the death
iii. MPC: a homicide is murder if the actor intentionally takes a life or if she
acts with extreme recklessness. MPC doesn’t divide murder into degrees,
doesn’t require proof of premeditation and deliberation and abandons the
felony murder rule but provides that reckless indifference to human life
may be presumed if the person causes the death during commission of
one of the felonies enumerated (robbery, arson, burglary, kidnapping,
felonious escape, rape or deviate sexual intercourse by force or threat
of force).
iv. State v. Brown (SC of TN 1992): a four year old boy Eddie was allegedly
beaten to death (suffered varying bruises, abrasion, intestinal, cranial and
cerebral injuries) and the father was convicted of first degree murder. D
argued that premeditation was not shown and court held that evidence
introduced at trial wasn’t sufficient to support conviction for first degree
murder and that D’s conviction must be reduced to second degree murder.
1. From the beginning, the statutory definition of first degree murder
required the state to prove that the killing was done willfully, that
is of purpose, with intent that the act by which the life of a
party is taken should have that effect; deliberately, that is, with
cool purpose; maliciously, that is with malice aforethought;
and with premeditation, that is a design must be formed to kill
before the act by which death is produced is performed.
Because conviction of second degree murder also requires proof of
intent and malice, two distinctive elements of first degree murder
are deliberation and premeditation.
2. It’s true that purpose need not be deliberated upon any particular
length of time but it’s enough if it precede the act but the purpose
must be coolly formed and not in passion or if formed in passion,
must be executed after the passion has had time to subside.
3. Even if intent (purpose to kill) and premeditation (design) may be
formed in an instant, deliberation requires some period of
reflection, during which the mind is free from the influence of
excitement or passion.
4. There is proof here that D acted maliciously toward the child, in
the heat of passion or anger, without adequate provocation, all of
which would make him guilty of SDM but no evidence that D
acted with premeditation and deliberation required to establish
5. Relevant circumstances recognized by other courts as creating an
inference of premeditation and deliberation are: deadly weapon
was used upon an unarmed victim, homicidal act was part of a
conspiracy to kill persons of a particular class, killing was
particularly cruel, weapons with which to commit the homicide
were procured, D made declarations of his intent to kill the victim,
preparations were made before the homicide for concealment of
the crime such as digging a grave.
6. ES: Brown seems to accept that premeditation can be formed
within seconds but focuses on deliberation which suggests a calm
reflection of the act. Why punish acts with premeditation and
deliberation more? More culpable because there’s more control
and more preventable when compared with crimes of passion. In
states without clarifications on premeditation and deliberation,
juries decide the severity of the crime. Heinousness of the crime
may be a better standard?
v. People v. Anderson (Cal. 1968): D was convicted of FDM after a 10 year
girl was found with 60 knife wounds in D’s girlfriend’s house and D had
been drinking heavily. Court gave literal meaning of the words
deliberation and meditation.
1. We have repeatedly pointed out that the legislative classification of
murder into two degrees would be meaningless if deliberation and
premeditation were construed as requiring no more than may be
involved in mere formation of a specific intent to kill.
2. We have therefore required the killer act as a result of careful
thought and weighing of considerations; as a deliberate judgment
or plan; carried on coolly and steadily, especially according to a
preconceived design.
3. Evidence of premeditation and deliberation usually fell into three
patterns: evidence of planning activity, evidence of motive, and
evidence as to the manner of the killing that showed a
preconceived design to kill. Here there’s no evidence of planning
and no evidence of motive.
vi. People v. Roe (COA of NY 1989): D loaded a mix of live and dummy
shells into a shotgun and killed the victim while playing Polish roulette.
1. Judgment affirmed that proof is legally sufficient to convict D of
depraved indifference murder. Depraved indifference murder, like
reckless manslaughter, is a nonintentional homicide. It must be
shown that the actor’s reckless conduct is imminently dangerous
and presents a grave risk of death; in manslaughter, the conduct
need only present the lesser substantial risk of death.
2. Whether the risk is elevated into the very substantial risk
present in murder depends upon the wantonness of D’s acts,
whether they were committed evincing a depraved indifference
to human life. This involves an objective assessment of the
degree of risk presented by D’s reckless conduct.
3. Here, the shooter knowingly loaded the mix of live and dummy
cartridges with no regard to the order of their insertion into the
magazine. ES: seems to just look at gravity of the risk of death.
4. Dissent: the mathematical probabilities, the ambiguity in the
evidence as to the operational order in the firing of the weapon, all
render the risk of death uncertain and D’s grief and aid to the
victim counter-indicate depravity, callousness, and indifference of
the level fictionally equaling premeditated, intentional murder.
5. ES: arguing his crime was reckless manslaughter. Depraved
murder carries 15-life whereas reckless manslaughter carries 4-15
years. Difference is that his reckless conduct shows malice, grave
risk of death; objective determination whether the risk of death is
so grave that D should be convicted of murder rather than
a. Basically applying MPC analysis (in order to show
recklessness, D doesn’t need to believe the risks were
substantial), D has to be aware of the risks and the
circumstances creating the risk but doesn’t have to be
aware that it’s a grave risk.
vii. Commonwealth v. Malone (PA 1946): D engaged in a game of Russian
Roulette with a friend and killed the friend on the third shot after loading
five bullets into the chamber.
1. Conviction for murder upheld and grand criterion which
distinguished murder from other killing was malice and this malice
was not malevolent to the deceased particularly but any evil design
in general, the dictate of a wicked, depraved, and malignant heart.
Here, D exhibits wickedness of disposition, hardness of heart,
cruelty, recklessness of consequence, and a mind regardless of
social duty which proved there was malice in his mind.
viii. Nothington v. State (AL 1981): mother was convicted of murder for
allowing her five month old daughter to starve to death and court reversed
conviction because the statute required universal malice.
1. While D’s actions evidence an extreme indifference to the life of
her child, there was nothing to show that the conduct displayed an
extreme indifference to human life generally.
b. Manslaughter
i. Common Law Rules
1. At common law, Lord Holt discussed five types of provocation
which had been legally sufficient to rebut the implication of
malice to reduce the crime of murder: any striking of the
accused, angry words followed by assault, sight of a friend or
relative being beaten, sight of a citizen being unlawfully deprived
of his liberty, and sight of a man in adultery with accused’s wife.
The categories of provocation insufficient to reduce murder to
manslaughter were words alone, affronting gestures, trespass
to property, misconduct by child or servant, and breach of
a. ES: provocation applies only to intentional killing and
provocation must come from the victim; takes intentional
killing that is presumed to be done with malice and makes
it a crime that doesn’t involve malice. It lowers the grade of
the homicide but not a complete defense.
2. Common law defense has four elements: actor must have acted
in heat of passion, the passion must have been the result of
adequate provocation, actor must not have a reasonable
opportunity to cool off, and there must be a causal link
between provocation, the passion, and the homicide.
a. Words alone don’t constitute adequate provocation but the
trend is away from recognizing only a limited number of
categories of adequate provocation.
3. Most jurisdictions have created a three stage analysis: D must have
acted in a heat of passion based on sudden provocation, provoking
event must have been legally adequate (courts continue to exclude
certain events such as mere epithets), and provocation must also
have been of a sufficient degree to have excited the passions of a
reasonable person.
4. The traditional rationale for allowing provocation is that killing
which is the result of temporary excitement is substantially less
blameworthy than a killing which is the result of wickedness of
heart or innate recklessness of disposition.
a. Freddo v. State (SC of TN 1913): D struck the victim with
a steel bar after victim continually used the phrases “son of
a bitch” to him. D argued that he struck because of anger
at the epithet and to defend himself and would not have
struck but for victim’s movement. Charged with FDM and
convicted with SDM so one of the elements must have been
missing (premeditation or deliberation).
i. D killed victim under impulse of sudden heat of
passion but it wouldn’t reduce the grade of the
crime from murder to voluntary manslaughter
unless that passion were due to a provocation of
such a character in the mind of an average
reasonable man, stir resentment likely to cause
violence, obscuring the reason, and leading to
action from passion rather than judgment.
ii. Law tests the adequacy of the provocation upon the
basis of a mind ordinarily constituted, of the fair
average mind and disposition and no epithet or
language, however violent or offensive, is
sufficient provocation for taking life. Assault with
offensive language may be sufficient provocation.
iii. ES: one bright line rule is that words are never
enough. Principle is to ask the ordinary person
whether he/she is so provoked that he/she might kill
this person, kind of like a reasonable standard and
assumption that an ordinary person would never kill
another person just in response to verbal taunts.
5. Cooling Periods
a. Traditional provocation doctrine includes requirement that
killing occur before a sufficient interval has passed to
permit the passions to cool and allow thought and reflection
and reason to reassert itself.
i. Three step analysis: D’s passion must not in fact
have abated, passage of time sufficient for reason to
be restored will preclude defense as a matter of law,
and it’s a question for the jury whether a reasonable
person would have cooled off in the interval
between provocation and act of killing.
ii. State v. Gounagias (WA 1915): deceased had
sodomized D when D was drunk and spread the
story widely. Upon being taunted for weeks, D took
a gun and shot the deceased in the latter’s home
while the deceased was sleeping.
1. Theory of cumulative effect of reminders of
former wrongs, not of new acts of
provocation by the deceased, is contrary to
the idea of sudden anger as understood in
the doctrine of mitigation. A provocation
which doesn’t cause instant resentment, but
which is only resented after being thought
upon and brooded over, is not a provocation
sufficient in law to reduce intentional killing
from murder to manslaughter.
iii. People v. Berry (CA 1976): D killed deceased who
had taunted D about having sexual relations with
another man. After ten days, deceased started
taunting and screaming and D strangled her.
1. Verbal provocation may be sufficient and
facts support a finding that D killed in wild
desperation induced by long continued
provocatory conduct. The long course of
provocatory conduct reached its final
culmination in the apartment when Rachel
began screaming and D killed in a state of
uncontrollable rage, of passion.
2. ES: controversial case and has come to
symbolize that provocation defense reflects
a male perception of the world.
6. Objective Standards
a. Both sufficiency of provocation and passage of adequate
time to cool down are measured by an objective standard.
i. Bedder v. Director of Public Prosecutions (1954):
D was sexually impotent and emotionally stressed
and stabbed deceased to death after she laughed
and punched him in the groin.
1. An unusually excitable or pugnacious
individual, or drunken one or a man who is
sexually impotent isn’t entitled to rely on
provocation which wouldn’t have led an
ordinary person to have acted in the way
which was in fact carried out.
ii. People v. Ogen (CA 1985): society has a strong
interest in deterring violent and homicidal conduct
by not allowing individuals to justify their acts by
their own standard of conduct or else the rule would
limit homicides to manslaughter upon any fancied
slight so long as the perpetrator was sufficiently
iii. A man’s passion directed against another person is
reasonable if he reasonably believes that he has
been injured by the other and a reasonable man who
actually has suffered such an injury would be put in
a passion directed against the other.
ii. MPC
1. 210.3(b) states that a homicide that would otherwise be murder
“constitutes manslaughter when … [it] 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.”
2. Words alone can qualify and there is no reasonable cooling off
period. Provocation doesn’t have to come from victim. EMED
determined from the perspective of a person in the actor’s situation
under the circumstances as he believes them to be so allows
considerable subjectivization of the objective standard.
a. Situation clearly would include personal handicaps so
blindness, shock from traumatic injury, and extreme grief
are all easily read into the term situation but idiosyncratic
moral values are not part of the actor’s situation and
ultimately the question is whether actor’s loss of selfcontrol can be understood in terms that arouse sympathy in
the ordinary citizen.
b. Jurisdictions that have MPC usually have much higher
manslaughter sentences (basically a response to the
criticism that we’re just letting people off). Those with
common law traditional provocation defense, usually lower
manslaughter sentence
3. People v. Casassa: D killed the deceased with whom he dated and
alleged the defense that the course of the relationship combined
with several personality attributes peculiar to D, he was under the
influence of extreme emotional disturbance.
a. Trial court properly concluded that the test was not to be
applied solely from the viewpoint of D, and that the
emotional reaction at the time of the commission of the
crime was so peculiar to him that it couldn’t be considered
reasonable so as to reduce the conviction to manslaughter
in the first degree.
b. Court made a sincere effort to understand D’s situation and
the circumstances as D believed them to be but concluded
that murder was the result of D’s malevolence rather than
an understandable human response deserving of mercy.
c. Felony Murder
i. A person who commits any felony and all accomplices in that felony are
guilty of murder if a death occurs during the commission or attempted
commission of the felony. The killer’s malignant purpose is established by
proof of the collateral felony.
1. Rationale: reduce deaths coming out of the course of those offense
(be really careful that no one gets killed, encourage felons who
pursue felonies to be careful so that no one gets killed).
ii. MPC abolishes the felony murder rule; under 210.2.1(b): reckless
indifference is presumed when actor commits a series of offenses
(creates a presumption that death that happens in the course of
dangerous felonies such as kidnapping represents condition of
reckless indifference to human life).
iii. Courts have used three devices for limiting the situations: requirement
that felony be inherently dangerous (felony be malum in se rather
than malum prohibitum), causation limitation usually expressed as
requiring that death be a natural or probable result of the felonious
conduct, and requirement that felony be independent of the homicide
(merger rule to exclude lesser-included homicide and assault offenses
from those felonies to which the rule applies).
1. The abstract inherently dangerous test is whether the crime by its
very nature can’t be committed without creating a substantial risk
that someone will be killed or carrying a high probability that
death will result. Other jurisdictions consider the facts and
circumstances of the particular case to determine if such felony
was inherently dangerous in the manner and circumstances in
which it was committed.
2. Modern merger rule is that a felony doesn’t merge if the assaultive
behavior involves an independent felonious purpose or that a
felony doesn’t merge with a homicide where the act causing death
was committed with a collateral and independent felonious design
separate from the intent to inflict the injury that caused death.
iv. People v. Hansen (CA 1994): D paid for some meth but when the dealer
didn’t return, D fired several shots into the dwelling of the dealer killing a
young girl in the apt.
1. There are specific felonies that count as FDFM. SDFM requires
dangerous felonies. SDM is unlawful killing of a human being
with malice but without the additional elements that would support
a FDM. Felony murder rule imputes the requisite malice for a
murder conviction to those who commit a homicide during the
perpetration of a felony inherently dangerous to human life. The
doctrine operates to posit the existence of crucial mental state and
render irrelevant evidence of actual malice.
2. In determining whether a felony is inherently dangerous, court
looks to the elements of the felony in the abstract and not the
particular facts of the case. Inherently dangerous felony is one
by its very nature can’t be committed without creating a
substantial risk that someone will be killed/offense carrying a
high probability that death will result. In most states, judgment
about whether felony is a dangerous felony will be made based on
circumstances surrounding the offense.
3. Willful discharge of a firearm at an inhabited dwelling is an
inherently dangerous felony for the purposes of the SDM because
there will exist a significant likelihood that an occupant may be
present and it would directly serve the fundamental rationale of
deterring negligent or accidental killings in the course of the
commission of dangerous felonies.
4. Merger doctrines had been developed for the conclusion that
felony murder rule shouldn’t be applied in circumstances where
the only underlying felony committed by D was assault because it
would elevate every felonious assault to murder if death is
involved, frustrating Legislature’s intent to punish certain
felonious assaults (committed with malice forethought) more
harshly than other felonious assaults (without malice
5. The rule is that with respect to certain inherently dangerous
felonies, their use as the predicate felony supporting application of
the felony murder rule will not elevate felonious assaults to murder
to otherwise subvert the legislative intent. Application of SD
felony murder rule wouldn’t subvert legislative intent because
most homicides don’t result from the felony involved here.
6. Concurrence: the merger rule should require us to determine
whether the underlying felony was committed with a collateral and
independent felonious design. This case supports the conclusion
that D entertained a collateral and independent felonious design,
namely to intimidate the dealer by firing shots into his house.
7. Dissent: prohibited conduct has resulted in death only in rare
circumstances because activities often demand attendance outside
so occupants may not be present and the rule can’t be a deterrent to
someone who has decided to undertake an assault (though the
felony here doesn’t bear the label of assault) and the merger rule
should apply because there was no independent purpose other than
to assault the dealer.
8. ES: two basis for appeal: wasn’t a dangerous felony and that
offense had merged in the homicide and hence can’t be treated as a
felony. Decided first issue of dangerous felonies in the abstract v.
individualized approach. If not for the merger rule, then every
homicide will be turned into a felony murder and would undermine
legislative intent that grades different homicides based on requisite
mens rea. Here, there was a single course of conduct that resulted
someone’s death so discharging the firearm should have been
excluded. Court rejected the integral test and endorsed
“committed with collateral and independent felonious design”
apart from intentional to cause injury. Here the intent was to
scare and not to cause injury.
v. Heacock v. Commonwealth (VA 1984): court upheld the felony murder
conviction of a person who supplied cocaine to participants at a drug
party. Court rejected the inherently dangerous felony limitation and
concluded that statute applies to all felonious acts except those particularly
named in the FD statute and evidence suggested that it was inherently
dangerous anyway because of medical testimony that cocaine can cause
violent reactions and that legislature classified cocaine distribution as very
serious felony. ES: is selling drugs inherently dangerous (do a lot of
people die)?
vi. Clark County v. Morris (NV 1983): carefully limited circumstances that
would support conviction of a drug seller for SDFM to those instances
where the unauthorized sale and ingestion of a controlled substance
involved are inherently dangerous in the abstract and there must be an
immediate and causal relationship between the felonious conduct and
death of the victim and would exclude sale with nonlethal dosage. ES:
seller has to have involvement beyond selling; amount sold has to be
dangerous in the abstract, there has to be immediate causal connection
without intervening agency and there has to be some involvement by seller
in the ingestion (encouragement).
vii. Causation
1. Anytime that causation is part of the result element, there’s
ambiguity as to whether the causation is too remote. Long lapse of
time is sometimes a problem but there could be intervening factors
that breaks the chain of events (refusing blood transfusion after
getting shot).
2. State v. Sophophone (SC of KS 2001): D appeals felony murder
conviction for the death of his co-felon during flight from an
aggravated burglary in which both men participated. Can felon be
held to FM if the murder was caused by co-defendant, victim,
police officer, or bystander? Can D be convicted of murder if the
immediate cause of his co-felon’s death was the police officer?
a. Agency approach: majority rule is that felony murder
doctrine doesn’t apply if the person who directly causes the
death is a non-felon because it’s not possible to impute the
acts of a non-felon or police officer to a co-felon on the
basis of agency. But D can be charged with depraved and
indifferent murder (for death of victims).
b. Proximate causation: a felon may be responsible under
felony murder for a killing committed by a non-felon if the
felon set in motion the acts which resulted in the victim’s
i. Standard is one of objective foreseeability.
Foreseeable: killing by police officer, resistance by
victim. Not foreseeable: reckless police conduct.
c. ES: most courts have adopted the proximate causation
approach and not agency approach.
d. The overriding fact is that neither D nor any of his
accomplices killed anyone. To impute the act of killing to
defendant when the act was the lawful and courageous one
of a law enforcement officer is contrary to the strict
construction we are required to give criminal statutes.
Felony murder must have been done by D or by someone
acting in concert with him in furtherance of the felonious
e. Dissent: there are sound reasons to adopt the proximate
cause approach as the intent behind the felony murder
doctrine would be thwarted if we didn’t hold felons
responsible for the foreseeable consequences of their
f. ES: under laws of complicity, any participant is liable for
the other participants for the furtherance of the felony (3
robbers, 1 getaway guy, 1 planner at home; if robber is
guilty of FM, then all of them are guilty). If getaway rapes
someone, then only he’s guilty because it’s not part of their
armed robbery. In general, any crime committed by one of
the participants in furtherance of their offense will be
imputed to all of the participants.
3. People v. Antick (Cal 1975): D and another was charged with
burglary and murder. D walked away from a car and shortly after
his accomplice was killed after initiating a gun battle with the
a. As the immediate cause of death was the act of the officer
it’s clear that felony murder rule doesn’t operate to convert
the killing into a murder for which D may be liable by
virtue of his participation. Nor may D be held legally
accountable based on his vicarious liability for the crimes
of his accomplice since his accomplice didn’t cause the
death of another human being and that he acted with
viii. In many states for Sophophone situations, state applies the proximate
causation theory.
1. If purpose of FM is super deterrent for engaging in felonies at all,
then proximate causation would allow for more convictions for FM
where third party would be immediately responsible.
2. If purpose of FM to promote care in the commission of felonies to
reduce accidental deaths, agency theory fits with the rationale to
choose co-felons carefully and control them; limits deaths
controllable by felons.
XIII. Justification and Excuse
a. Necessity (necessary to commit the crime to prevent a greater harm from
happening; often called the lesser of evils defense and committing the crime was
the only way of avoiding the grave harm).
i. Defense grounded in utilitarian consideration (preventing more harm) but
can be justified from retributivist view (not a bad decision to choose action
that avoids a larger loss).
ii. Defense of Necessity is given in limited circumstances, don’t want people
to decide for themselves.
1. ES: a good test to ask self: if the legislature had thought about
this situation, would it have created the exception?
iii. Common law requirements: actor must be faced with clear and
imminent danger, D must expect that his action will be effective in
abating the danger that he seeks to avoid, there must be no effective
legal way to aver the harm, harm D will cause must be less serious
than the harm he seeks to avoid, lawmakers must not have made a
policy choice, and D must come to the situation with clean hands.
iv. MPC 3.02 recognizes a choice of evils defense, a person’s conduct is
justified if he believes his conduct is necessary to avoid harm to
himself to another, the harm to be avoided is greater than that sought
to be avoided and no legislative intent to exclude the conduct in such
circumstances plainly exists. Code provides that defense is unavailable if
the actor is prosecuted for a crime of recklessness or negligence and he
acted reckless or negligently in bring about the emergency in evaluating
the necessity of his conduct. Harm doesn’t need to be imminent and
defense is available in homicide prosecutions.
v. Commonwealth v. Markum (SC of PA 1988): Ds were part of an antiabortion demonstration and went into a clinic and damaged medical
instruments. They were charged with trespass and alleged defense of
justification to prevent murder (life begins at conception) through the
lesser harm of trespass.
1. In PA, defense of justification is recognized by statute that conduct
which the actor believes to be necessary to avoid a harm or evil to
himself or to another is justifiable is: the harm or evil sought to
be avoided is greater than that sought to be prevented by the
law defining the offense charged (saving lives is more
important than destruction of property); neither this title nor
other law defining the offense provides exceptions or defenses
dealing with the specific situation involved (if there was statute
that dealt with trespass to abortion clinics then defense would
be precluded), and a legislative purpose to exclude the
justification claim doesn’t otherwise plainly appear.
2. Case law has held that D is able to make an offer of proof for
justification only if: the actor was faced with a clear and imminent
harm, not one which is debatable or speculative; that actor could
reasonably expect that the actor’s actions would be effective in
avoiding this greater harm, there was no legal alternative which
will be effective in abating the harm, and the legislature hadn’t
acted to preclude the defense by a clear and deliberate choice
regarding the matter at issue.
3. Berrigan held additionally that defense of justification was not
available in situations where conduct some perceive to engender
public disaster has been specifically approved by legislation
making it legal. Abortion has been specifically approve by the
Legislature and a legally sanctioned activity can’t be termed a
public disaster.
4. It’s unreasonable to believe that their brief occupation of once
center would effectively put an end to the practice of abortion.
5. There are numerous means in a democratic society to express a
point of view and appellants were free to peacefully demonstrate
outside the center to prevent the harm.
6. Pennsylvania law is clearly to the contrary showing that there was
legislative purpose to exclude the justification defense.
7. Concurrence: appellants complied with three out of the four
conditions precedent to the presentation of defense of justification:
the abortion would be completed in a very brief time so the danger
was clear and imminent, appellants were able to prevent the
women from entering the building and there was no legal
alternative available. But appellants couldn’t establish the absence
of a legislative purpose to exclude the defense of justification.
8. ES: NY statute (gambling, prostitution, criminal act may prevent
injury that is measured by ordinary intelligence and morality so
may allow a defense). Injury to be avoided must according to
ordinary standards of intelligence and morality, clearly outweigh
the injury.
Common Law and Modern Statutory Formulation
1. MPC has been adopted in substance by 10 American jurisdictions
and is the same as the Markum one. NY Penal Code stresses the
desirability and urgency of avoiding such injury clearly outweigh
the desirability of avoiding the injury sought to be prevented by the
statute defining the offense. MPC eliminates the necessity defense
whenever the legislature has specifically spoken on the topic so
under MPC whatever is legal couldn’t be evil.
2. Most state statutes impose a similar limitation as does the MPC
that the choice of evils defense is limited to where the necessity is
occasioned or developed through no fault of the actor.
Economic Necessity
1. State v Moe: Ds entered a local grocery store and helped
themselves during the Depression. Court stated that economic
necessity has never been accepted as a defense to a criminal
Medical Necessity
1. State v. Tate: D was a quadriplegic and used marijuana and court
upheld the conviction because the legislation allowed marijuana to
be prescribed in some circumstances so by making available this
specific exception, legislature intended to exclude claims based on
medical necessity.
2. State v. Diana: D used marijuana because of her MS symptoms.
Court stated that necessity defense can be considered because
legislature had recognized in some cases marijuana possess
medicinal benefits that outweigh the harms its use inflicts so D
should be given the opportunity to demonstrate that MS is another
such case.
Necessity as Justification for Homicide
1. Traditional common law bars this defense but most modern
statutes including both MPC and NY provision seem to
contemplate a defense of necessity or choice of evils may be raised
where one innocent person is killed in order to save others.
2. Regina v. Dudley and Stephens: sailors killed one boy in order to
escape starvation after being stranded at sea. Court held that there
is no absolute or unqualified necessity to preserve one’s life and
that if such a principle is once admitted, it might be made the legal
cloak for unbridled passion and atrocious crime.
a. The boy is innocent and the victim wasn’t an aggressor
who created any sort of threat.
b. ES: at common law this defense wasn’t available if the
plain lesser evil involve killing someone. Many statutes and
MPC allow this defense. It seems more culpable to be
rational and plan things out than to be in urgent
b. Defense against Aggression (Self-Defense)
i. COL: A non-aggressor is justified in using force upon another if He
reasonably believes that such force is necessary to repel the imminent
use of unlawful deadly force by the other person.
1. Self-defense contains a necessity component, proportionality
requirement, and a reasonable belief rule that overlays the
2. Deadly force is typically defined as force likely to cause or
intended to cause death or serious bodily harm.
a. Self-defense is limited to imminent threats and a person
may not use deadly force in some jurisdictions if he knows
that he has a completely safe avenue of retreat.
b. Proportionate rule provides that a person isn’t justified in
using force that’s excessive in relation to the harm
threatened so never permitted to use deadly force to repel
what he knows is a nondeadly attack.
c. Self-defense claim has a subjective and an objective
component. First jury must determine that D subjectively
believed that he needed to use deadly force to repel an
imminent unlawful attack. Second D’s belief in this regard
must be one that a reasonable person in the same situation
would have possessed. An increasing number of
jurisdictions now permit an unreasonably mistaken actor to
assert an imperfect claim of self-defense, which mitigates
the offense to manslaughter.
ii. MPC 3.04: person not justified in using deadly force against another
unless she believes that such force is immediately necessary to protect
herself against the exercise of unlawful deadly force, force likely to
cause serious bodily harm, kidnapping, or sexual intercourse
compelled by force or threat.
1. Each defense is defined solely in terms of D’s subjective belief in
the necessity of using the force but it’s subject to the provisions of
3.09 which provides that when D is reckless or negligent in regard
to facts relating to the justifiability of his conduct, defense is
unavailable in a prosecution for an offense for which recklessness
or negligence suffices to establish culpability.
a. If actor’s subjective belief is reckless or negligent then the
D may be convicted of a homicide offense based on
recklessness or negligence (such as manslaughter or
negligent homicide).
2. Compare with common law: repel imminent use of unlawful
deadly force v. MPC immediately necessary to protect against
herself. MPC follows the minority common law position that a
non-aggressor must retreat if she knows she can thereby avoid
need to use deadly force with complete safety to herself.
iii. People v. Goetz (COA of NY 1986): D shot four youths who asked him for
money on the train and alleged self-defense.
1. D claiming self-defense can’t be aggressor, threat must be
immediate and his belief that he faced a serious bodily injury or
death from these aggressor has to be reasonable.
2. Rationale: focuses on autonomy of individuals and right to be free
from; aggressor interfering with victim’s autonomy and bodily
integrity and victim has a right to respond (moral and legal right).
3. NY Penal Law states that a person may not use deadly physical
force unless he reasonably believes that such other person is using
or about to use deadly physical force or he reasonably believes that
such other person is committing or attempting to commit a
kidnaping, forcible rape, forcible sodomy or robbery.
a. An objective standard can still incorporate the background
and other relevant characteristics of a particular actor; they
also necessarily bring in physical attributes of all persons
involved and D’s circumstances encompass any prior
experiences he had which could provide a reasonable basis
for a belief.
4. NY COA in Goetz is to adopt an objective standard that requires
the belief to be reasonable but in evaluating the reasonableness of
the belief, fact finder is to base that judgment in D’s circumstances
(includes a lot of factors that is subjective to the D; immediate
context (subway, size of the aggressors, size and strength of
victim); Court can consider prior experiences that shape one’s
5. ES: looks like vigilante justice.
iv. Stand Your Ground/Retreat Rule
1. MPC 3.04(2)(b)(2) states that deadly force isn’t justifiable if the
actor knows that he can avoid the necessity of using such force
with complete safety by retreating. Majority of states reject the
retreat rule as well as upholding the right to stand one’s ground.
Most jurisdictions endorse the SCOTUS’s view that the failure to
retreat is a circumstance to be considered with all the others in
order to determine whether the D went farther than he was justified
in doing. MPC tells citizens that a part of duty to retreat is to turn
over property to the aggressor.
2. Castle exception: even jurisdictions that have adopted the
requirement of retreat recognize the exception that a person
attacked in his or her own home need not retreat. MPC: there is no
duty to retreat in home. Intrusion in home is particularly
threatening infringement on autonomy and very little space.
3. Trayvon Martin
a. Stand Your Ground removed the duty to retreat outside the
home and he has the right to meet force with force. It also
allows the use of deadly force even when the assailant is
retreating and makes it easier for a person claiming selfdefense to prevail.
b. Prosecutor’s argument: Zimmerman was the aggressor and
expressed anger at young punks who always get away;
disobeyed dispatcher’s order to not follow Martin.
c. Zimmerman’s argument: Martin was reaching for his
waistband, confronted Zimmerman.
d. ES: most states have a SYG rule due to NRA’s lobbying
efforts; there are states that have a retreat rule. Goal of selfdefense is to minimize harm and preserving human life is
an important value so duty to retreat is good to minimize
confrontation. Concerned about SYG because it promotes
vigilante justice.
v. Mistaken in Claims of Self-Defense
1. MPC endorses imperfect justification where an unreasonable
belief in the existence of justificatory facts negates the mens rea
required for murder but provides no defense to the lesser charge of
manslaughter so it has a mitigation effect. A person who believes
however unreasonably in the existence of justificatory facts has a
defense to any crime requiring culpability of purpose or
2. An objective standard of reasonableness requires the factfinder to
view the circumstances surrounding the accused at the time he
used force from standpoint of a hypothetical reasonable and
prudent person whereas subjective standard inquires whether the
circumstances are sufficient to induce in the accused an honest and
reasonable belief that the must use force to defend himself against
imminent harm.
vi. Battered Women Syndrome
1. State v. Kelly (SC of NJ 1984): D was indicted for murder and
claimed self-defense when she killed her abusing husband when a
pair of scissors when he ran toward her. Trial court excluded the
expert testimony about BWS and how it is relevant to her killing
her husband with scissors. Kelly felt that her life was at risk.
a. In addition to psychological impacts, external social and
economic factors often make it difficult for some women to
extricate themselves from battering relationships.
b. A valid self-defense will not lie absent an honest belief on
the part of D in the necessity of using force and if it’s found
to have been unreasonable under the circumstances, such a
belief can’t be held to constitute complete justification for a
homicide. Expert testimony would have helped the jury
to understand why D could have honestly feared that
she would suffer serious bodily harm yet still remain
with him which in turn will aim in supporting D’s
testimony that she honestly feared serious bodily harm
and under the circumstances whether a reasonable
person would have believed there was imminent danger
to her life.
c. Expert could state that D had the battered woman’s
syndrome, could explain that syndrome in detail, relating
its characteristics to D, but only to enable the jury to better
determine the honesty and reasonableness of D’s belief.
d. ES: psycho-violence in three stages (arguments and minor
incidents, one or more major battering incidents, contrite
stage). Court isn’t ready to accept a capacious subjective
belief but is ready to accept that expert testimony can help
explain to the jury.
2. Some cases reflect jurors’ acceptance that a perception of future,
inescapable danger could provide sufficient grounds for
reasonable, self-defensive, life-taking action even when the source
of the danger was asleep. But most appellate courts have held that
the imminence element isn’t satisfied by a showing that the actor
faced threats of future physical violence or harm (we declined to
stretch the law of self-defense to fit the facts of this case because it
would weaken our assurances that justification for the taking of
human life remains firmly rooted in real or apparent necessity as
opposed to purely subjective speculation that decedent probably
will present a threat to life at a future time and that D wouldn’t be
able to avoid the predicted threat).
c. Duress
i. Justification defense tends to focus on the wrongfulness of an act or a
result whereas an excuse defense focuses on the actor.
1. There is voluntary conduct but based on moral blameworthiness,
criminal law offers an excuse for the hard choice made under
external coercion. Duress is a complete defense.
ii. A person will be acquitted of any offense if another person threatened
to kill or grievously injure the actor or a third party, the actor
reasonably believed threat was genuine, threaten was imminent, there
was no reasonable escape and actor wasn’t at fault in exposing herself
to the threat (threat must come from a human being).
iii. MPC: duress is an affirmative defense if she was compelling to
commit the offense by the use or threatened use of unlawful force by
the coercer upon her or another person and a person of reasonable
firmness in her situation would have been unable to resist the
1. MPC: while no need for deadly threat nor imminency
requirement, still require unlawful physical coercion so
economic and reputational threats don’t qualify.
iv. US v. Haney (10th Cir. 2002): A co-defendant received life threats and D
persuaded him to attempt to escape so the co-D can be put in solitary
confinement. D was convicted of possession of escape paraphernalia and
wanted to raise the defense of duress towards third party.
1. Duress defense typically consists of three elements: D has a
reasonable or well-grounded fear of threat of immediate/immediate
infliction upon D of death or bodily harm, D’s well-grounded fear
that the threat will be carried out, and D’s lack of a reasonable
opportunity to otherwise avert the threatened harm.
2. The law should extend the defense to third parties without familiar
relationship because it would create good incentives for behavior
as actors might hesitate to violate the law in order to protect the
safety of others.
3. Duress defense is defined not by nature of relationship between the
law-breaker and beneficiary third party but by the nature of the
crime committed and the benefit conferred upon the third party.
4. D presented sufficient evidence because numerous witnesses
substantiated racial tension in the prison and that co-D received
specific and credible threat and presented enough evidence to
reach the jury on whether the D or co-D has a reasonable
5. ES: self-defense requires threat of imminent bodily harm and
serious injury, same as duress. Duress: no reasonable alternative.
Self-defense: duty to retreat. Court is ready to forgive a minor
harm if it maximizes social welfare.
6. Necessity, threat could be anything (force of nature) but in duress,
threat needs to be another person. Kind of threats: necessity (harm
to property or person) v. duress (threat to person, threat to
reputation or property isn’t sufficient to warrant response of
committing a crime), sometimes duress defense is available in
contexts where the necessity defense isn’t (kidnap someone or rape
wife so equal evils).
v. State v. Toscano (NJ 1977): D a chiropractor signed a false medical
report for another person in order to protect himself from bodily harm
threatened by the person.
1. Evidence of duress sufficient to go to the jury based on MPC
2.09/NJ statute both of which reject the common law requirement
of a threat of imminent harm. The immediacy of the danger is one
of the circumstances to be considered in determining whether the
threatened use of force was such that a person of reasonable
firmness in D’s situation would have unable to resist.
2. ES: modern courts tend to look at imminence to be one factor to
look at how coercive the situation is.
vi. Duress and BWS
1. State v. BH (NJ 2005): D admitted to having sex with her step-son
but wanted to admit expert testimony to substantiate her defense of
a. Has to show that she honestly and reasonably feared the
unlawful use of force and that a person of reasonable
firmness would have been unable to resist.
b. Evidence of BWS may be used to support some but not all
of the elements of a duress defense.
c. D is unavailable if the actor recklessly placed himself in a
situation in which it was probable that he would be
subjected to duress. D is unavailable if he was criminally
negligent in placing himself in such a situation and criminal
negligence would suffice to establish the culpability of the
offense charged. Defense is only available to reduce the
degree of murder to manslaughter.
d. She loses defense of duress if she recklessly put herself
in or recklessly stay in the relationship and testimony is
helpful in explaining why she wasn’t able to leave freely
and she was restricted by her own fear.
e. The first component requires that D actually believe in
and be frightened by the likelihood of the threatened
harm so jury must assess the sincerity of D’s asserted
perception of an imminent threat of harm. The second
component is that D’s resistance must meet community
standards of reasonableness. Jury must consider objectively
such factors as the gravity of the threat, proximity of the
impending harm, opportunities for escape, likely execution
of the threat, and seriousness of the crime D committed.
Finally D must not have recklessly placed himself in
f. Testimony was admissible and relevant to the
recklessness aspect of the duress defense as syndrome
directly address any lay misperception that D is reckless
imply because she remained in the abusive relationship.
Testimony is also relevant to the subjective question of
whether D honestly had believed that she confronted an
imminent threat of danger.
g. However, testimony may not be used to support second
component of duress which is determined by jury of the
reasonableness of a D’s conduct. The issue is whether a
person of reasonable firmness in her situation would have
been able to resist the threat from her abuser.
vii. Duress and Murder
1. Common law and many modern codes reject duress as defense
to intentional homicide. MPC swept away this limitation.
2. British authorities first allowed accomplice to murder to rely on
duress defense in Prosecution v. Lynch but refused to extend the
doctrine to a principal in the first degree in Abbott.
3. Regina v. Howe (1987): Two young men killed two victims under
the instructions of an older dominant and violent man. Court
decided it is neither rational nor fair to make the defense dependent
on whether the accused is the actual killer or took some other part
in the murder so duress defense isn’t available to accomplices or
principals to murder.
viii. Duress and Contributory Action
1. MPC: no defense of duress if the actor recklessly placed
himself in a situation in which it was probable that he would be
subjected to duress.
2. Williams v. State (1994): D was accused of attempted robbery
after others kidnapped him to find a stash of drug money. Court
rejected a duress defense because D’s prior criminal conduct
contributed mightily to the predicament in which he later found
himself. Usually limited to criminal operations.
3. Incapacity defenses: infancy/incompetence (youths under age of
14), insanity.
XIV. Rape
a. Traditional Approach and Reform Movement
i. Traditional rape statute is to provide that forcible rape is sexual
intercourse by male with a female not his wife, by means of force or
threat of force, against her will, and without her consent. Many states
have reformed their law to sexual assault or sexual battery and would
prohibit all forms of forcible sexual penetration and not just vaginal
intercourse and tends to be gender neutral.
1. At common law prosecutor had to prove that male used force so
there was a resistance requirement. If the male uses or threatens to
use force likely to cause death or serious bodily injury then she is
not required to resist. If the male uses only moderate force then
female is required to resist to the utmost or until exhausted or
2. NJ Supreme Court has gone so far as to hold that force
inherently involved in sexual act itself is sufficient evidence of
force to permit a forcible rape conviction. It also held that
forcible rape is proven upon evidence of sexual intercourse
unless victim reasonably appears to give permission for the
intercourse so absence of yes (needs affirmative consent) also
constitutes forcible rape.
ii. MPC 213.1(1)(a): male who has sexual intercourse with female not his
wife is guilty if he compels her to submit by force or by threat of
imminent death, serious bodily injury, extreme pain or kidnapping, to
be inflicted on anyone. MPC focuses on the action of the perpetration, his
acts of compulsion and doesn’t include a resistance requirement.
iii. MPC: rape if acting with mens rea he has sexual intercourse with a
female under any of the circumstances: female is less than ten, female is
unconscious, compels female to submit by force or by threatening her or
another person with imminent death, grievous bodily harm, extreme pain
or kidnapping, or administers drugs in a manner that substantially impair
the female’s ability to appraise or control her conduct. MPC differs from
common law because sexual intercourse includes genital, oral, and
anal sex by the male of the female, defined in male’s acts of aggression
rather than in negative terms of female’s lack of consent.
iv. State v. Rusk (COA of MD 1981): D claimed her had consensual sex with
the victim after they conversed at the bar whereas the victim claimed that
D made threatening facial expressions and lightly choked her as they had
1. Vaginal intercourse once established, remaining elements of rape
in the second degree under MD law are force (actual or
constructive) and lack of consent.
2. Force is an essential element of the crime and evidence must
show that the victim resisted and her resistance was overcome
by force or that she was prevented from resisting by threats to her
safety (if the acts and threats of D were reasonably calculated
to create in the mind of the victim a real apprehension of
imminent bodily harm).
3. Lack of consent is generally established through proof of
resistance or by proof that victim failed to resist because of fear.
Hazel made it clear that lack of consent could be established
through proof that victim submitted as result of fear of imminent
death or serious bodily harm. If the actions and conduct of D were
reasonably calculated to induce this fear, element of force is
present. Therefore the same kind of evidence may be used to
establish both force and nonconsent.
4. Vast majority of jurisdictions have required that victim’s fear
be reasonably grounded in order to obviate the need to proof
of actual force. Reasonableness of victim’s apprehension of fear
was plainly a question of fact for the jury and where persuasion
ends and force begins is essentially a factual issue.
5. Dissent: there was no conduct by D reasonably calculated to cause
the victim to be so fearful that she should fail to resist and thus
element of force is lacking.
6. Resistance: at common law the courts treated proof of resistance as
a necessary component of rape with many courts demanding
utmost resistance but some courts have rejected this standard and
held that resistance must only be sufficient to establish that
women’s lack of consent was honest and real. A substantial
jurisdictions still require the women to do more than say no.
7. Affirmative Consent: NJ ruled in State in the Interest of MTS that a
person is guilty of forcible sexual assault if he commits an act of
sexual penetration in the absence of affirmative and freely given
permission. MTS put the burden on the man to get affirmative
8. ES: for most courts verbal nonconsent wouldn’t be adequate
because it’s not an adequate manifestation of her non-consent; girl
being coy. Updates to MPC tends to see rape as violation of sexual
autonomy. Criticism is that the prosecution is focused on the
victim so there is effort to modernize the requirement to prove
elements of defense. There’s a trend towards using verbal
nonconsent rather than physical resistance.
a. Problem with resistance: expose victim to danger,
frozen fright response and puts the focus on what the
complainant did.
b. Nonconsent and Mens Rea
i. At common law rape is general intent crime and general rule is that person
isn’t guilty of rape if he entertained a genuine and reasonable belief that
female consented to sex. This conforms with mistake of fact principles
relating to general intent crimes.
ii. State v. Smith (SC of CT 1989): victim claimed rape while D sought for
the court to impose a requirement of mens rea or guilty intent as an
essential element of the crime of sexual assault in the first degree.
1. D is arguing that he was honest and he should have a defense.
Harm of rape is defined by the harm itself, no further harm needed
to be convicted of crime. The court has held that sexual assault
statute requires proof of only a general intent to perform the
physical acts that constitute that crime.
2. Whether a complainant has consented to intercourse depends on
her manifestations of such consent as reasonably construed. If the
conduct should reasonably be viewed as indicating consent, D
shouldn’t be found guilty because of disclosed mental reservation.
3. Rejected the position that state must prove an actual
awareness on the part of D that complainant had not consented
or a reckless disregard of her nonconsenting status.
4. ES: mistake has to be reasonable and reasonableness would be
subjected to the judgment of the jury and the judge. Many rape
cases are about credibility as jurisdiction move towards stricter
standards about nonconsent (allowing verbal negations). Under
MPC, mistake that negates culpability required for the element at
issue would be a defense. If D shows that he was not aware of the
risk that the woman was not consenting, then he has a defense
because standard is recklessness (MPC rape provisions have been
criticized). Negligent D gets a pass at MPC but not at common
5. Intoxication: Sexual intercourse with someone who is incompetent
to consent to the act has long been punished as a form of rape.
Incompetent actors include persons who are unconscious or asleep
as well as persons who lack the mental capacity to consent to
sexual relations. MPC limits liability to cases where a man has sex
with a woman who is so drunk that she is unconscious or where he
substantially impaired her power to appraise or control her conduct
for the purpose of preventing resistance.
a. D’s intoxication, standard rule for excluding evidence of
intoxication for general intent crime applies, so only
reasonable mistake is defense.
b. Unconsciousness: rape to have sex with someone who is
unable to give consent.
c. MPC: woman who lacks capacity to express consent due to
intoxication, then that’s not freely given consent, man can
be convicted of lesser category of sex by imposition. If
both are drunk, man could be convicted of crime of rape
because a reasonable person would see that she couldn’t
Study collections