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Crim Outline

ACT + INTENT (Mental State + Attendant Circumstances) + CAUSATION = CRIME
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1. What is Criminal Law For?
a) State of nature
 --> civilized society through rule of law
 Hypo: minority report clip – we don’t let victims or families go after perpetrators – government has
exclusive right to enforce/inflict violence.
b) Theories of punishment:
 Utilitarian Theories: Forward looking, justification lies in useful purpose of punishment.
- Deterrence: We need to punish people to deter future crimes. Target repeat offenders.
 (1) Probability of conviction + (2) Amount of punishment
 If (1) is low, increase (2), and vice versa
- Incapacitation: Target repeat offenders, keep dangerous people away from society, keep them from
committing more crimes.
- Rehabilitation: Try to rehabilitate/reform.
 Retribution Punishment: Backward looking, attribute importance to offender’s past
- Vengeance --> but the state has a monopoly on violence.
2. Limits on Punishment:
a) Proportionality:
 Differentiate on reasonable grounds between serious and minor offenses (§1.02(1))
Ewing v. California: “3 Strikes”
(SCOTUS, 2003) “3 Strikes You’re Out”
Facts: Ewing (∆) sentenced to 25 years to life under CA “Three Strikes” law for stealing 3
golf clubs because he had “violent” priors. Argued that sentence was grossly disproportionate
to the crime and violated Eighth Amendment ban on cruel and unusual punishment.
Court: Theory of Three Strikes is to isolate repeat offenders to protect society
(incapacitation) and deter crime by increasing severity of punishment (deterrence); not the
job of courts to second-guess state’s policy choices.
Deterrence – life sentence for child porn (SR 1-2): low probability of detection --> high amount of
Incapacitation – “Sentencing by the Numbers” (SR 3-5) – predict repeat offenders based on race, sex,
employment status, married/single.
Rehabilitation – Judge Sentences Man to Sixty Days for Assault on Young Girl” (SR 6-7)– rehabilitation
over retribution for very serious crime.
Retribution – “41 Years Later, Ex-Klansman... 60 Years” (SR 8-10) – old man gets huge sentence to pay
for the terrible things he did – vengeance.
b) Culpability:
 Safeguard conduct that is without fault from condemnation as criminal (§1.02(1))
 Trial By Jury: 6th Amendment protects against arbitrary law enforcement; only ∆ can appeal if jury says
not guilty; jury nullification is powerful.
- many v. one, peers v. gov. officials, ordinary v. professional
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Trial By Jury: Duncan v. Louisiana
(SCOTUS, 1968) Facts: Duncan (∆), black youth, convicted on disputed evidence, without a jury,
of simple battery on white youth. Request for jury trial denied. ∆ claimed denial of due process
under Sixth and Fourteenth Amendments.
Rule: Trial by jury is fundamental to American scheme of justice. 14th Amendment guarantees right
of jury trial in all criminal cases which, were they to be tried in federal court, could come within
Sixth Amendment’s guarantee. Check against government power, reduces unfairness.
Presumption of innocence: Government must choose cases carefully, cases that will result in conviction.
Limits power of government to interfere with lives.
Proof Beyond a Reasonable Doubt: Stronger than preponderance of evidence. Makes it harder to
convict, controls government power. Downside – forced to acquit people who might be guilty.
Proof Beyond a Reasonable Doubt: In re Winship
(SCOTUS, 1970) 12-year-old boy found guilty by preponderance of evidence to have committed an
act that if done by an adult would be a crime, supporting charge of juvenile delinquency.
Rule: Proof beyond a reasonable doubt is among essentials of due process when a juvenile is charged
with an act that would be a crime if committed by an adult.
c) Principle of Legality:
 Give fair warning of nature and conduct that constitutes an offense (§1.02(1))
 Nulla poena sine lege - no punishment without law …one cannot be punished for doing something that is
not prohibited by law
 Policy issues: Fair notice - gov't must provide fair notice and specific warnings about what constitutes a
 Requirements
- (1) No retroactivity
- (2) Warning must be specific enough to know what exactly is being prohibited;
- (3) Based on a rule that is codified by state legislature - no common law crimes!
Commonwealth v. Mochan
(1955, PA) Mochan (∆) made series of obscene calls to a stranger. Found guilty for intending to debauch,
corrupt, and vilify. Conduct not prohibited by statute. ∆ appealed, arguing that he could not be indicted for
acts that did not constitute a statutory crime.
Holding: A person may be prosecuted for committing CL crime, even if it hasn’t been enacted in
legislation. Nearly all jurisdictions have statutorily abolished CL offenses. Some states, like RI still
authorize prosecution.
Problems: vagueness, retroactivity (don’t give fair notice), judicial lawmaking
Very clear lines between private/public in criminal law --> important to know when government becomes
interested in what you are doing.
3. Sources of Criminal Law
a) Old CL crimes: After American Revolution, most states continued to apply CL of England (developed by
courts). More penal laws then enacted, some states made new legislation and abrogated CL crimes not
recognized by statutes. Others said CL applied in the absence of legislation (Mochan).
b) MPC – 1960s – statutes adopting CL definitions were replaced in most states by modern codifications
inspired by MPS. In about a third of states, “CL crimes” remain in force – initially judge-made, not have been
solidified by legislatures.
4) HOW TO INTERPRET STATUTES…Canons of Statutory interpretation:
 Start with plain meaning of text. If unclear/ambiguous, then:
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Canons of Construction – rules of interpretation:
 Statutory structure – consider in all parts when construing any of them
 Purpose
 Avoid absurdity
 Legislative history
 Rule of Lenity – Criminal statutes must be strictly construed against the prosecution. If there are
two reasonable interpretations, the one most favorable to ∆ applies. (Doctrine of last resort)
 For MPC, use “travel rule”, otherwise default is recklessly.
MPC Travel rule: mens rea (purposely, knowingly, etc.) should travel to each material element of the
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1. Actus Reus: Act (or omission)
2. Mens Rea: state of mind when committing act
3. Attendant Circumstances: special factors that must be present in some but not all crimes. Must be present when
actor performs prohibited conduct /causes prohibited result that constitutes social harm of the offense --> found in
definition of a crime
o Example: Burglary (entering a “dwelling”) Statutory Rape (“underage”)
4. Causation: link between act and result (for results crimes)
o “but for” (Actual) + Proximate Cause
5. Result: ultimate harm (for crimes that require it)
6. Affirmative defenses: justifications and excuses, ∆ bears the burden of proof for affirmative defenses.
1. Actus Reus – for there to be a crime, there has to be an act
a) Voluntary Acts
- Unless otherwise specified, you must actually do something. State cannot deter involuntary acts and
we want to keep people from being prosecuted for inaction.
- No punishment for involuntary acts
 Sleepwalkers, sleep sexers, epilepsy, unconsciousness, hypnosis
 Habits generally considered voluntary under MPC
MPC: 1.13, 2.01
- (2): “act” or “action” means bodily movement whether voluntary or involuntary.
- (3) “voluntary meaning specified in §2.01:
- 2.01(1): A person is not guilty of an offense unless his liability is based on conduct which includes a
voluntary act or the omission to perform an act of which he is physically capable.
- 2.01(2): NOT voluntary acts:
 (a) reflex or convulsion
 (b) bodily movement during unconsciousness or sleep
 (c) conduct during hypnosis or resulting from hypnotic suggestion
 (d) bodily movement that otherwise is not a product of the effort or determination of the actor,
either conscious or habitual.
Martin v. State (Alabama, 1944) – drunk on highway
- Facts: Martin (∆) is arrested at his home while drunk, taken by police to highway, and charged with
being drunk on the highway.
- Rule: Criminal liability must be based on conduct that includes a voluntary act or omission from
committing an act that was physically possible to have been performed. Being involuntarily and
forcibly brought into a public place when drunk is not a voluntary act.
 Introduces concept of actus reus – for conduct to be wrongful is must either be a voluntary act or
omission to act – essential element for liability to arise.
- Modern applications (courts agree on applying Martin, disagree on application): People v. Low,
court upheld conviction where man is taken to jail and brought drugs with him. Court distinguished
by saying he had a “clear opportunity to avoid the prohibited conduct”. State v. Barnes, court said that
necessary voluntary act occurs when ∆ possesses the substance, even though he was arrested for
something else. Other courts disagree on this application, saying voluntary element is vital.
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People v. Newton, (CA, 1970) – gunshot wound --> unconsciousness
- Facts: Newton (∆) involved in altercation with police officer following his arrest. He was shot and
possibly acted unconsciously in shooting the officer while in a state of shock resulting from his own
- Rule: Where not self-induced, unconsciousness is a complete defense to a charge of criminal
homicide. Court said it was an error to not instruct jury on unconsciousness.
Somnambulism: The Cogden Case – sleepwalking woman dreams that her house is full of spiders
crawling all over her daughter --> kills daughter. Jury acquits her based on the idea that the killing was
not her act at all.
Epilepsy: People v. Decina (1956) – Driver knew that he had epilepsy, stopped taking meds, drove and
killed someone. Court held him liable for negligence because he knowingly drove the vehicle with
knowledge that he was prone to these fits. Voluntary act is operation of the vehicle while not taking
b) Thoughts
 No punishment for thoughts alone.
- People change their minds
- Most bad thoughts do not result in harm
- Practical issue: difference between daydream and intention
- Issue – if government wants to catch someone before the act occurs – when to intervene between plan
and action.
c) Omission
- Moral obligation is insufficient. No punishment for omission except when there is legal duty to act
 Statute imposes duty (ex. Good Samaritan Laws in VT/RI/MN --> give reasonable assistance as
long as it does not interfere with your life)
 Status relationship (family – but no duty for siblings or to parents)
 Contractual (K) – examples: lifeguard, nurse.
 Voluntary Undertaking – you can’t stop midway through helping someone
 Creation of Peril – you put that person in danger
MPC: 1.13(4), 2.01(3)
- 1.13(4): “omission” means a failure to act;
- 2.01(3): Liability for the commission of an offense may not be based on an omission unaccompanied
by action unless:
 (a) the omission is expressly made sufficient by the law defining the offense; or
 (b) a duty to perform the omitted act is otherwise imposed by law
People v. Beardsley (MI, 1907) – mistress dies in basement after bender
- ∆ has affair with woman on drug & drinking bender, she dies in his basement, ∆ is drunk and had
asked to have her moved to another room.
- Court held that he only had moral obligation to save her – not legal obligation.
Kitty Genovese (SR 24-25) – 37 people saw murder, didn’t call police
Mother Rages Against Indifference (SR 26-28): 7-year-old raped in bathroom dies, witness saw and did
not intervene.
After Fatal Subway Shove, Asking, Were There No Heroes? (SR 29-31) – Someone pushed into
subway, no one helped.
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Jones v. United States (DC, 1962) – baby dies, malnutrition, duty of care
- Jones (∆) was caring for 10-month-old baby of family friend. Convicted of voluntary manslaughter
after baby died in his care. Baby was shockingly neglected. Court of Appeals reversed and remanded:
jury must find BARD that duty was owed.
- Rule: Under some circumstances, the omission of a legal duty owed by one individual to another,
where such omission results in the death of the one to whom the duty is owed, will make the other
chargeable with manslaughter.
 Court: Breach of legal duty can arise in 4 situations: (1) where a statute imposes the duty; (2)
where one is in a certain status relationship to another (Parent to child); (3) where one has
assumed a contractual duty to care for another; and (4) where one has voluntarily assumed
the care of another. Issue on (3) and (4).
Pope v. State (Maryland, 1979) – child abuse, ∆ didn’t intervene
- Pope (∆) let woman from church and her child stay with her. Woman savagely attacked her child for
several hours, Pope did not intervene. Child died.
- Rule: One is not criminally liable for failing to intervene when a person staying in one’s dwelling
abuses her child.
 Court: Responsibility for the child remains with the parent.
Why is there such a broad rule for no punishment for omission?
1) The law is not going to tell you how to spend your day/interfere with your life
2) Duty to rescue situations can be dangerous
3) Sometimes people who have no business to rescue will try to rescue and make matters worse
III) Unless a penal statute specifically requires a particular action to be performed, criminal liability for
omission arises only when the law of torts or some other law imposes a duty to act
IV) La Brie to Serve 8-10 Years in Prison (SR 32-33) – Mother withheld cancer medication from her disabled son.
Duty of care.
Self-Defense – if you hurt an attacker in self-defense, you must rescue him/her/ Because you created the peril.
1) Mens Rea
a) Basic Concepts
 Broad sense: mens rea is synonymous with moral fault, having a will to commit a crime;
o Defenses to criminal liability (involuntary act, duress, legal insanity, accident, mistake) can be
considered mens rea defenses under this framework.
 Narrow sense: formal requirement, which refers to the kind of awareness of intention that must
accompany the prohibited act under terms of the statute that define the offense.
o Mens rea element is crucial to the description of the criminal conduct.
o Legislatures often have left mental element undefined/ambiguous, leaving the courts to figure out
what proper mental state should be.
CL: Malice
- Traditional CL: proof that ∆ acted “willfully, intentionally, maliciously, corruptly, wantonly,
recklessly, negligently, or with scienter (knowledge)” --> terms defined differently by courts
 Intent: purposely or knowingly
 Malice: Default rule in non-MPC jurisdictions. Foresight of the prohibited consequence
(Cunningham) Awareness that actions posed substantial risk of causing prohibited harm.
 Leaves out situations where ∆ was going to do something bad but was unaware of the
consequences (negligence)
 Wantonly: intentional conduct with high degree of likelihood to harm another (Welansky – fire in
- Recklessness or Negligence:
 Recklessly: heightened criminal negligence or conscious disregard of substantial and
unjustifiable risk.
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Negligence: ∆ should have been aware that conduct created substantial and unjustifiable risk of
Regina v. Cunningham: Malice (CL)
 ∆ intentionally stole gas meter out of house (meant to steal money). Woman in the house became
 Issue: Can ∆ be said to have maliciously done some harm where he did not intend to do the
particular kind of harm or did not foresee that harm might be done?
 Rule: No. “Malice” in a statutory crime means foresight of the consequences and requires 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.
 Malice does not require wickedness.
 Issue of malice should have been left to the jury.
 Transferred intent doctrine: When a perpetrator acts with the intent to commit a crime against
one person, and instead commits that crime against another person, the perpetrator's intent is
transferred to the actual victim for the purposes of liability. Only applicable within the limits of
the same crime:
 Intention to cause one type of crime cannot substitute for the required intention in
another type of crime. Ex. throwing a rock with intention to hit someone, but
unintentionally breaking a window --> not guilty of malicious destruction of property.
 However, such ∆ might be convicted for having acted recklessly or negligently.
o Regina v. Faulkner (UK, 1877) (CL): rum on the ship
 Sailor goes to steal rum, lights a match to see better. Ship catches on fire. Court
overturns his conviction under Malicious Damage Act for “maliciously setting fire to
the ship”. Act required that he did it intentionally or willfully, which could also be
proven if he knew that injury would probably result (reckless). Jury was not
instructed on this – conviction overturned.
CL: General v. Specific Intent
- General Intent: desired to commit the act, actor’s vicious will or moral culpability for causing social
- Specific Intent:
 actions that must be done with some specified purpose in mind.
 ex. burglary requires break and enter with intent to commit felony inside a dwelling
 ex. assault with intent to rape
 Another usage of specific intent: crime that requires ∆ to have actual knowledge of some fact or
circumstance in addition to knowledge of conduct – attendant circumstance
 Ex. Bigamy – do you have to know that you are still married to another? In a jurisdiction that
does not require proof that he knew he was still married, it would be general intent.
Jurisdiction that requires proof would be specific intent.
People v. Stark (CA Appeals, 1994): (CL) General Intent (construction guy)
 ∆ supposed to build medical complex for doctors, used money from doctors for other projects,
was supposed to pay them back, promised but didn’t for a long time. Convicted of willful
diversion of construction funds.
 Rule: Willful diversion of funds is a general intent crime – statute defines crime only by
describing the particular act without reference to intent to do further act or achieve further
consequence. Therefore, only necessary to ask whether ∆ intended to do the act.
State v. Morris (Supreme Court of Iowa, 2004): (CL) Specific Intent (car theft)
 Charged with 2nd degree theft of truck (to permanently deprive), apprehended 30 minutes later,
fled on foot, convicted of lesser offense of “operating a vehicle without owner’s consent.
 Specific intent crime --> must show further intent to permanently deprive the owner.
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General intent v. specific intent, malicious intent --> ways that mens rea was deemed insufficient by
MPC writers...
MPC 1.13(9)-(16), 2.02(1)-(8): Eliminates use of general/specific intent
- §1.13 (12): intentionally means purposely (trying to depart from CL usage of intent)
- Applying the MPC:
 1. Break down the elements:
 Nature of the Conduct: what you’re doing (act)
 Attendant Circumstances (2.02(2)(a)(ii) & 2.02(2)(b)(i)): purposefully and knowingly
- NOTE: To act knowingly ∆ must be aware of AC, but ∆ can act purposely even if they
think AC are unlikely, as long as they hope the AC exist.
 Results of the Conduct: result or non result crime?
 2. Identify material v. nonmaterial elements of the offense:
 1.13(9): “element of an offense” = conduct, AC, or result of conduct that (a) is included in
the definition of the offense, or (b) establishes required culpability, or (c) negatives an excuse
or justification, or (d) negatives a defense under SOL, or (e) establishes jurisdiction or venue.
 1.13(10): “material element of an offense” = does not relate exclusively to statute of
limitations, jurisdiction, venue, or other matter similarly unconnected with (i) harm or evil of
conduct sought to be prevented, (ii) existence of a justification or excuse for conduct.
Basically things you are trying to prohibit
 3. Determine mens rea for each material element
 2.02(2)(a): PURPOSELY
- (i) Conduct or result of conduct: A person acts purposefully (intentionally) if he acts
with the intent that his action causes a certain result. In other words, the defendant
undertakes his action either intending for, or hoping that, a certain result will follow.
- (ii) AC: aware of existence of such circumstances or believes or hopes they exist.
 2.02(2)(b): KNOWINGLY
- (i) Conduct or AC: aware that his conduct will result in certain consequences
- (ii) Result of conduct: aware that it is practically certain that his conduct will cause such
a result.
 2.02(2)(c): RECKLESSLY - conscious risk creation
- Consciously disregards substantial and unjustifiable risk that the material element
exists/will result from conduct --> to apply to any material element
 2.02(2)(d): NEGLIGENTLY – does not require state of awareness
- Should be aware of substantial and unjustifiable risk.
- Gross deviation from standard of care that a reasonable person would observe.
 §1.13(16): reasonable belief --> actor is not reckless or negligent in holding it
 4. If terms of statute are ambiguous, use DEFAULT RULES of MPC (2.02(3-10)):
 (3): If statute is silent with respect to culpability for any material element, material element is
established if person acts purposely, knowingly, or recklessly (at the very least).
 (4): If statute doesn’t distinguish culpability among material elements, travel rule applies:
Culpability (mens rea) applies to all material elements unless contrary purpose plainly
 Substitution Rule (5): negligently satisfied if acted recklessly, knowingly, or purposely,
recklessly satisfied if acted knowingly or purposely, etc.
- (8) Willfulness satisfied by acting knowingly, unless purpose to impose further
requirement appears.
- (10) If crime lists several MR, lowest one establishes culpability.
 Conditional Intent (6): Requirement of purpose is satisfied if purpose is conditional
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Example: stealing a car with the intent to kill. It’s not required to actually kill. It’s
enough that there is an intent accompanied by car theft. This is an attempt to capture
people before the condition is satisfied
(7) When knowledge of existence of particular fact is an element of the offense, knowledge is
established if the person is aware of high probability of the existence, unless he actually
believes it does not exist.
(9) Mistake of Law: you are culpable unless statute specifically says you aren’t.
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b) Strict Liability
 Mala Prohibita: Crimes that were inherently bad before the law said so (ex: murder)…NOT SL
 Mala in Se: Crimes that exist only b/c the state says so (ex: traffic rules)…STRICT LIABILITY
 No culpable mental state must be shown with respect to at least one of the material elements of the
 CL - Figure out if it falls into public welfare offenses (strict liability) or traditional crimes (MR required)
– mala prohibitum (bad because law says it is bad), mala in se (morally wrong)
 More likely to be strict liability when:
- Risk Regulation – Social Betterment: Risk punishing innocent people for benefit of public.
- Least cost avoidance – Burden on people who are in a better position to prevent harm, protect lives
of people who are beyond self-protection (Dotterweich-mislabeling medication is strict liability)
 More likely to require mens rea when:
- Goal of law = punishment --> don’t want to punish innocent people
- Large stigma – ensure it is blameworthy (Morissette-you m)
- Notice problem – don’t want to surprise people
MPC 1.04(5), 2.02(1), 2.05(1):
- 1.04(5) Violations: An offense defined by this Code or by any other statute of this State constitutes a
violation if it is so designated in this Code or in the law defining the offense or if no other sentence
than a fine, or fine and forfeiture or other civil penalty is authorized upon conviction or if it is defined
by a statute other than this Code which now provides that the offense shall not constitute a crime. A
violation does not constitute a crime and conviction of a violation shall not give rise to any
disability or legal disadvantage based on conviction of a criminal offense.
- 2.02(1): Minimum Requirements of Culpability. Except as provided in Section 2.05, a person is
not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law
may require, with respect to each material element of the offense.
- 2.05(1): When Culpability Requirements Are Inapplicable to Violations and to Offenses Defined by
Other Statutes; Effect of Absolute Liability in Reducing Grade of Offense to Violation
 Culpability requirements don’t apply to (a) violations (b) statutes other than the Code,
legislative purpose to impose liability
 Strict liability for public welfare and child sex offenses are exceptions to the MPC
 (b) – legislative purpose – has not been very influential. More commonly we see fights about
whether it is strict liability or not.
- Public Welfare Offenses: strict liability – mens rea not required
 Policy reasons for strict liability: They’re designed to make responsible parties responsible for
their actions and to protect the innocent injured person
MR Not Required: Regulations
US v. Balint (1922) drugs without order form
- ∆s indicted for violating Narcotic Act – sold derivatives of opium and coca without order
forms. SCOTUS held that mens rea (knowledge that they were selling prohibited drugs)
wasn’t required by statute.
- Holding Public policy – for particular acts, State may provide that “he who shall do
them shall do them at his peril” – emphasis on social betterment, people who are in a
position to know.
US v. Dotterweich (SCOTUS 1943) – shipping drugs/labels
- Buffalo Pharmaceutical Company (defendant) purchased drugs from manufacturers,
repackaged them, and shipped them to physicians and others under its own labels. On at
least two occasions, the drug manufacturer’s labels were incorrect.
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MR Not Required: Statutory Rape
Issue: Does Federal Food, Drug, and Cosmetic Act, which prohibits the shipment of
misbranded or adulterated products in interstate commerce, require MR to be proven at
Holding: No. One of the main purposes of the Federal Food, Drug, and Cosmetic Act is
to ensure some measure of societal protection against illicit or impure food and drugs
within interstate commerce. Regulation, not punishment. Burden is placed on those in
best position to know.
People v. Olsen (California, 1984) – sex with 13-year-old he thought was 16
- Guy had sex with a 13 year old girl. He claims to have believed she was over 14. The
charge is “Lewd of lascivious conduct with a child under the age of 14”. He claims he did
not have the mens rea necessary to commit this crime (she lied about her age, said she
was 16).
- Holding: Mistake of age is NOT valid defense for statutory rape. It is a strict liability
crime – strong public policy to protect children of tender years. Length of punishment is
not a predictor of strict liability – matter of great public importance. Good faith mistake
is inadmissible in statutory rape
MR Required: Traditional Crimes
US v. Morissette (SCOTUS 1952) – converted shell casings
 ∆ found spent military shell casings in “Bombing Range”, converted them into scrap metal.
Convicted of unlawful conversion of government property – court said this is mala in se
crime, and requires MR.
 Rule: Crimes that are mala in se (bad in themselves necessarily include the element of
mens rea, and no statutory strict liability version of them is permissible. Omission of MR
from statutory definition does not justify abandonment.
- Court: Purpose of exempting regulatory crimes: no evil purpose can exist to do an act
which is not evil in itself. CL crimes/mala in se crimes excluded from strict liability.
Staples v. US (SCOTUS 1994) – registering an automatic weapon
 When Staples (D) was convicted because he had not registered in the National Firearms
Registration and Transfer Record a rifle that had been modified to be capable of fully
automatic fire, he claimed he did not know of the rifle's automatic firing capability.
 Rule: Some indication of congressional intent, express or implied, is required to dispense
with mens rea requirement.
- Court: offenses that don’t require MR are generally disfavored. Must have some
indication of congressional intent, generally not punishable by imprisonment.
 Cannot criminalize innocent conduct.
Importance of distinguishing “normal” activities from other activities. People who pick things up
and take them home are innocent (Morissette) and people who possess guns are innocent
A) People
who pick
things up
and take
Though the conduct is the same in both groups
A and B, group B had knowledge that what
they were doing is wrong. We do not want to
surprise group A with the label criminal, when
they had no criminal intent
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c) Defense: Mistake of Fact
MPC 2.04 Ignorance or Mistake
- (1) Ignorance or mistake as to a matter of fact or law is a defense if:
 (a) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or
negligence required to establish a material element of the offense; or
 (b) the law provides that the state of mind established by such ignorance or mistake constitutes a
- (2) Although ignorance or mistake would otherwise afford a defense to the offense charged, the
defense is not available if the defendant would be guilty of another offense had the situation
been as he supposed. In such case, however, the ignorance or mistake of the defendant shall reduce
the grade and degree of the offense of which he may be convicted to those of the offense of which
he would be guilty had the situation been as he supposed. Ex. Man thinks he had sex with 16 yr old,
but really had sex with 14 yr old. Mistake defense would reduce his guilt to whatever the crime is for
having sex with a 16 yr old.
- Strict liability, Moral Wrong Approach, Legal Wrong Approach, Reasonable Belief, Honest belief.
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Specific Intent: Not Guilty if negates SP portion
 SI: not guilty if mistake of fact negates specific intent portion of the crime (whether reasonable or
 Specific intent taken very eriously.
People v. Navarro – took wooden beams
 ∆ took wooden beams, honestly believed he had right to do so. Court said honest belief was
all that was necessary for specific intent crime.
General Intent: NG if reasonable
 not guilty if mistake is reasonable, non-negligent, shows actor committed actus reus with morally
blameless mind.
Moral Wrong Approach
 If you are committing a moral wrong, you are guilty of subsequent legal wrong
Regina v. Prince (1875) – taking girl under 16 from her father
 Prince (∆), under reasonable belief that girl was 18, convicted of taking or causing to be
taken an unmarried girl under 16 out of possession and against the will of her father. Mistake
of fact for age is not a defense because it was morally wrong. If act is morally wrong, you
“run the risk” of your act falling within realm of legal wrong.
 If the defense was that D thought the father gave him permission to take the girl, than that
mistake would exculpate D…also if he thought girl had no family (owners) he’d be
Legal Wrong Approach
 substitute “immoral” for “illegal”
 If you actually intended a legal wrong, you will be liable for all resulting wrongs.
 Different from MPC because you are liable for higher crime. (See Olsen)
 Mens rea for lesser crime gets translated to larger crime.
Honest and Reasonable Belief Approach (USA)
 If mistake was honest and reasonable, then no guilty mind.
Honest Belief Approach (UK)
 No guilty mind as long as belief is honest.
 Emphasizes the gravity of the crime – higher the gravity, higher the requirement for mens rea.
B (a Minor) v. Director of Pub. Pros. (UK, 2000) – oral, boy (15) thought girl (13) was over 14
 Honest Belief CL
 15-year-old boy badgered 13-year-old to have oral sex with him. He honestly believed she
was over 14.
 Holding: Where Parliament does not specify MR requirement, objective standard no longer
governs --> only honest belief.
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d) Defense: Mistake of Law
 Much overlap between MPC and CL
General: MOL is not a defense, but mistake as to some collateral fact may negate the mens rea:
- (1) Fair Notice, (2) Reasonable reliance, (3) Express exception, (4) Mistake of different law
MPC 2.02(9), 2.04(1)(a), 2.04(3)
- 2.02(9): Express exception: no MOL defense unless it is an element of the crime - Culpability as
to Illegality of Conduct. Neither knowledge nor recklessness or negligence as to whether conduct
constitutes an offense or as to the existence, meaning or application of the law determining the
elements of an offense is an element of such offense, unless the definition of the offense or the
Code so provides.
- 2.04(1)(a): MOL defense if it negates the mental state required to establish any element of the
offense. Unless crime definition says it is, ignorance of the law is not an excuse.
- 2.04(3) A belief that conduct does not legally constitute an offense is a defense to a prosecution for
that offense based upon such conduct when:
 Notice problem: (a) the statute or other enactment defining the offense is not known to the actor
and has not been published or otherwise reasonably made available prior to the conduct alleged;
 Reliance: (b) he acts in reasonable reliance upon an official statement of the law, afterward
determined to be invalid or erroneous, contained in (i) a statute or other enactment; (ii) a judicial
decision, opinion or judgment; (iii) an administrative order or grant of permission; or (iv) an
official interpretation of the public officer or body charged by law with responsibility for the
interpretation, administration or enforcement of the law defining the offense.
 We allow reliance defense because to do otherwise would result in entrapment
1. Fair Notice problem
 CL Notice Problem: Mistake must be reasonable and honest
Traditional/mala in se - People v Marrero (NY, 1987) – Notice, peace officer
 Traditional view: CL was mala in se crimes, people had fair warning and were doing moral
 Marrero (∆) was corrections officer in federal prison charged with illegal firearms possession –
argued that he mistakenly believed himself to be exempt from the ambit of the statute proscribing
possession -> mistake of law, or ignorance interpreting the law. – YJL thinks this is bad/hard case
 Rule: Ignorance/good-faith mistaken belief as to the meaning of a statute is no excuse – would
encourage willful ignorance, incentivize not knowing the law.
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Public welfare/mala prohibitum: Lambert v. CA (SCOTUS, 1957) – Notice, felony registration
 Mala prohibitum/public welfare crimes: Ignorance of law might be a mistake
 Lambert (∆) convicted of violating statute that required previously convicted felons to register if
staying more than 5 days in LA.
 Rule: Failure to act may not be punishable under a criminal statute unless it is shown that the ∆
knew or should have known of the duty established by the statute and penalty for failure to
comply with statute.
 Court: violation is passive, failure to act was innocent, she was given no chance to
2. Reasonable reliance
 was there reliance on an official statement?
 CL Reliance: Traditional view doesn’t care – reasonableness of ∆ mistake is irrelevant, must be official
interpretation only. Otherwise, people can say, oh my attorney said it was okay!
Hopkins v. State: billboards/state attorney
 ∆ convicted of violating state statute re: billboards even though State Attorney advised him that
he could put them up without violation. Court said this was no an official interpretation of the
law by an official officer.
3. Express Exception
 Law expressly states that knowledge of the law is an element
 CL Express Exception:
Cheek v. US (SCOTUS, 1991) – willful tax evasion
 Cheek (∆) charged with willfully failing to file a federal income tax return and willfully
attempting to evade his income tax, he argued that because he sincerely believed that the tax laws
were invalid, he had acted without the willfulness required for conviction.
 Rule: Any person who willfully attempts to evade or defeat requirement of paying taxes will be
guilty of a felony where it can be shown that he knows and understands the law.
 Here, “willfully” is included in definition of crime – knowledge of the law is an expressly
stated element.
 The law expressly states that mental state is required in order to be found liable…Here even
though  unreasonably believed he did not have to pay taxes, tax evasion is a specific intent
crime.  must have willfully violated the law in order to be found guilty. He did not.
MPC: 2.02(9): “unless the definition of the offense of the Code so provides”
- 2.04(1)(b) – if law provides that state of mind established by such ignorance or mistake constitutes a
defense, than MOL is an excuse.
4. Different Law
 CL : Does the material element mistaken look like criminal or civil law?
Regina v. Smith (UK, 1974) – Different law, destroyed property in apartment
 ∆ installed the property (stereo) he destroyed, mistakenly thought that it was his. His mistake was
about property law, not criminal law. Court acquits based on MOL.
 Court: Mistake of law is a defense if it negates a material element (property belonging to
another) ∆ didn’t know it belonged to another (mistake of property law)
State v. Varszegi (Conn Court of Appeals, 1993) – landlord seized computers
 Landlord seized computers from renter when renter defaults on rent. Charged with larceny. Court
held that larceny is specific intent crime, requires a certain element of willfully taking what is not
MPC: 2.04(1)(a) Different Law - Ignorance is a defense if it negates purpose, knowledge, belief,
recklessness or negligence required to establish material element of the offense.
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3. Causation
 Not every crime has a causation component
 Two components of causation element:
 Actual cause/ “but for” cause
- But for ∆ conduct, the result would not have occurred
- For 2 + ∆s: Substantial factor test – was ∆ conduct a substantial factor in bringing about the result?
Could be a substantial factor even without being a but-for cause
 Proximate cause
- Without proximate cause, a lot more people would be in trouble --> ex. your baby grows up to be
serial killer.
- Distance between act and consequence must be close
- Cause doesn’t have to be excusive
Foreseeability: Ordinary v. Extraordinary
 Was the risk so extraordinary it is unfair to say that ∆ caused it?
 Is outcome the reason we don’t want people doing it in the first place? (Acosta, McFadden)
 NOTE: Omissions, not just actions: When it’s established that a person has a duty to rescue and
chooses not to, that person’s omission is seen as a legal cause of the injury
 Atencio: failed to stop friend from playing russian roulette
 Welansky: failed to provide exits from the club
- DEFENSE: Intervention of autonomous actor: cuts off proximate cause chain if another actor
causes ultimate harm, 1st actor no longer cause of ultimate harm.
 Who caused ultimate harm? (Campbell)
 The more autonomous the other person is, the more likely her acts will cut off chain of causation,
so less likely that ∆ will be held accountable (Stephenson, Valade, Preslar)
Transfer of Intent: If ∆ shoots at A intending to kill him, but misses and strikes B, ∆ is guilty of murdering
B --> intent to kill is transferred.
 Issue: using up intent – if bullet goes through A and kills him, then kills B, are you guilty of both? Courts
are divided.
 If you try to hit the wife but hit the child instead, you are guilty of assault on the child.
Some say we don’t need transferred intent, we can just get the killer on reckless murder.
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a) Foreseeability/highly extraordinary standard
People v Acosta (CA, 1991) – foreseeable: helicopter collision
- ∆ steals care and leads police on wild chase, police helicopters monitoring crash, 3 people die.
- Actual cause clear --> but for him, no helicopters would be in the air
- Proximate cause: Foreseeability – deaths resulting from collision of helicopters during high-speed
ground chase is reasonable foreseeable.
 Highly extraordinary result standard: extremely remarkable or unusual results are excluded
from purview of proximate cause.
 Despite expert witness who said that helicopter pilots were being reckless, it is foreseeable
that pilots would be reckless under the circumstances.
HYPO: Same facts as Acosta, but the helicopter was filled with journalists not policemen
- Probable Rule: No proximate cause because the journalists would have had more of a choice than the
cops to follow  (i.e. they did not have a legal duty to follow . Here, autonomy matters.
People v. Arzon (NY, 1978) – foreseeable: death of fireman
fireman died from injuries sustained when he attempted to evacuate a building under hazardous
conditions created by ∆’s fire and smoke from another fire.
- Rule: A ∆’s conduct can support charge of homicide only if it was sufficiently direct cause of the
death and the ultimate harm was something which should have been foreseen as being
reasonably related to his acts. Here, the death of the fireman was reasonably foreseeable
People v. Kibbe (NY, 1974) – rob and leave man in road
D robs drunk man, leaves him on the side of a highway, he’s hit by a car and dies - ∆ found liable
because the ultimate harm was something that should have been foreseen as reasonably related to
∆’s acts. Idea of what is foreseeable is highly susceptible to manipulation:
- ∆ wants narrow definition of foreseeable, prosecutor wants broad definition (if broad definition,
basically anything could be foreseeable - a tree falling on victim, a tiger eating victim, etc.)
 If truck driver saw victim in road and decided to run over him, he might be seen as intervening
actor, which would take blame off of ∆.
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b) Intervening Causes
 Intervening human actors: Foreseeability test does not apply in cases of causation where human action
is involved. Human action is treated differently because of assumption of free will.
“Intervening human actor creates new chapter”
- Qualifications and Exceptions:
 Only actions chosen freely are treated outside of causation.
 Involuntary actions don’t count (Stephenson)
 Deception does not count.
 Duty, duress or emergency precipitated by the actor does not count.
Intervening Causes – Assisted Suicide
- Conviction of murder is proper only if the defendant participates in the overt act that causes death. It
does not count in acts leading up.
- Old Common law: Assisted suicide was murder. Few jurisdictions if any still retain this.
People v. Campbell (MI, 1983) – gave friend gun for suicide
 Gave gun for suicide, autonomous actor pulled the trigger: ∆ angry at victim for sleeping with his
wife, encouraged him to kill himself and then gave him his gun and left. It’s foreseeable that the
person will kill himself. There’s proximate and foreseeable cause but no intention to kill.
 Rule: Hope alone is not enough to create murder charge. Autonomous actor pulled the trigger.
People v. Kevorkian (MI, 1994) – gas masks
 Δ helps two terminally ill women kill themselves. In one case, he gave her a gas mask and shows
her how to turn the screw to kill herself. In another, he hooked her up to a suicide machine and
she administered chemicals.
 Differentiates between participating in a suicide and merely being involved in events preceding a
suicide: ∆ may be convicted of murder if he participates in the final overt acts that result in death.
 A majority of states now have separate crimes for assisting suicide, though, generally, prevailing
American law is that successfully urging another to commit suicide is not murder, as long as
deceased was mentally responsible and not forced, deceived, or otherwise subject to pressures
that rendered action partly involuntary.
Intervening Cases: Autonomous Actors vs. Non-Autonomous
- Whether intervening acts violate proximate cause turns on evaluating mental state and how
autonomous the actors were.
 Factors:
 Was the other person fully capable of choosing?
 Were the person’s options largely determined by defendant’s conduct?
 Were final results intended or merely risked?
 Joint activity?
 Particularly heinous acts, court may rule against defendant even if not foreseeable.
Not autonomous
Proximate cause
No Proximate Cause
No Proximate Cause
Not Foreseeable
Stephenson v. State (IN, 1932) – KKK kidnap, not autonomous
 Woman was kidnapped by KKK member and brutally assaulted. During her kidnapping she
purchased poison. She took poison, and was taken back to her parents house. Later she got
medical help, but she died due to a combination of poison and injuries sustained --> she was not
 RULE: If an accused committed a felony such as rape or attempted rape and inflicted on the
victim both mental and physical injuries as a result of which the victim was rendered mentally
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irresponsible and suicide followed, the accused would be guilty of murder.  caused mental
irresponsibility of the victim
State v. Preslar – wife dies in cold, autonomous
 Husband and wife fight. Wife runs outside into the cold, dies in the cold.
 Issue: Was the wife an autonomous actor?
 Holding: Yes because of the time that elapsed between her leaving her husband’s sphere of
influence and dying in the cold.
Rex v. Valade – young woman jumps out window, not autonomous
 Valade “seduced” young girl and raped her in a hotel room. She subsequently jumped out of a
window to escape and died.
 Issue: Did she have enough autonomy to be a superseding cause?
 Holding: After abuse, she was not of the mind to have that sort of autonomy “rendered
irresponsible by the wound and is a natural result of it”
 Control doesn’t have to be physical – control and dominion was absolute and complete.
Intervening Causes: Joint Activity
- Courts use this as a way around the intervening autonomous actor idea. Would not be superseding
because the activity was joint.
Commonwealth v. Root – drag racing truck crash, autonomous actor, not guilty
 Root (∆) was engaged in a drag race in which the other driver was killed when he ran into a truck.
Forseeable? Yes.
 Did the autonomy of the other driver intervene? Majority: Yes
 Legal theory which makes guilt or innocence of criminal homicide depend on accidental and
fortuitous circumstances as now embraced by modern tort law of proximate cause would be
too harsh to be just.
 Decedent chose to participate in the activity and also chose to swerve.
State v. McFadden – drag racing accident, joint enterprise, guilty
 McFadden (∆) was participating in a drag race. His competitor collided with another car,
resulting in the competitor's death and the death of a passenger in the other car.
 Issue: May the acts and omissions of two or more persons work concurrently as the efficient
cause of injury, and in such case, may each of the participating reckless acts or omissions be
regarded in law as a proximate cause?
 Holding: The acts and omissions of two or more persons may work concurrently as the
efficient cause of injury and in such a case each of the participating reckless acts or omissions
is regarded in law as a proximate cause which is a theory applicable in a criminal case.
 OPPOSITE of Root – says that acts of 2+ people can work concurrently to cause an injury. they
jointly produced the result. Unlike Root, this court does not require the same direct causal
Commonwealth v. Atencio – russian roulette, joint enterprise, guilty
 Atencio (D) and Marshall (D) played Russian roulette with the deceased, who was killed when
the gun discharged.
 Rule: Direct causation may be established by wanton and reckless conduct found in a joint
enterprise – they were not under a duty to prevent the deceased from playing Russian
roulette, but they were under a duty not to participate in reckless conduct that could lead to
a death of one of the participants. All the participants were bound together by mutual
encouragement, without any chance of controlling the outcome.
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a) CL Homicide: the killing of a human being by another
 Unlawful: murder, manslaughter, suicide, infanticide
b) MPC Criminal Homicide 210.1:
 (1) – purposely, knowingly, recklessly or negligently causes the death of another human being.
 (2) – murder, manslaughter or negligent homicide.
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1. Intentional Killing
a) Premeditation-Deliberation
CL: Elements required for murder – willful, deliberate, premeditated:
- Malice aforethought: intention to kill, intent to inflict grievous bodily injury +/ Premeditated – planned before the actual act
 Willful – specific intent to kill
 Deliberate – free from influence of excitement or passion
MPC 210.2(1)(a): murder – committed purposely or knowingly
Differences between CL and MPC:
- Some states require malice along with premeditated, willful, deliberate.
- MPC collapses everything into specific intent to murder
- CL – degrees of murder, MPC – doesn’t do degrees
Length of premeditation:
State v. Guthrie (Virginia, 1995): time matters (minority)- ∆ stabbed coworker making fun of
 Rule: There must be some evidence that the defendant considered and weighed his decision to
kill in order for the state to establish premeditation and deliberation under the West Virginia firstdegree murder statute.
 Court – jury instructions confused premeditation with intent to kill.
- Premeditation - There must be some period between the formation of intent to kill and
the actual killing, which indicates that the killing is by prior calculation and design.
Commonwealth v. Carroll (PA, 1963) – “no time is too short” (majority)
 Carroll's (∆) wife fractured skull while attempting to leave his car during an argument. Allegedly
led to her mental disorder - schizoid personality type. ∆ decided to go to electronics school
requiring him to be absent for nine days - couple had a violent argument. Later that night he shot
her in the back of the head. ∆ pled guilty to a murder indictment. He was found guilty of firstdegree murder – appealed.
 Holding: “No time is too short for a wicked man to frame in his mind the scheme for murder”.
Any length of time is sufficient for premeditation.
 Premeditation and deliberation may be formed while the murder is taking place
NOTE: It is hard to come up with a formula for who the worst killers are.
- Sweden penal code:
 Section 1 – person who takes the life of another shall be sentenced for murder to imprisonment
for ten years or for life.
 Section 2 – if circumstances make it less grave, manslaughter 6-10 years
 Section 7 – carelessly causing the death of another – at most two years, pay a fine
 Gross – six months to 4 years
 Why don’t we do it this way? The Swedish way leaves it up to judges/juries, fair notice problem.
 Counter argument – there are inconsistencies with more specific rules.
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b) Provocation (partial excuse/mitigation)
 Murder --> voluntary manslaughter
Differences between CL and MPC:
- MPC – words can be enough
- MPC – no cooling off rule
- MPC - No limitation that person killed must be provoker
- Actus reus killing committed:
 When acting in the heat of passion
 Passion is result of provocation
 Without time to cool off
 Result of excitement, not wickedness
- Adequate provocation – aggravated assault/battery, mutual combat, commission of a serious crime
against a close relative of ∆, illegal arrest, observation of a spouse committing adultery.
 NOT adequate: trivial battery, learning of adultery, observation of unfaithfulness of non-marital
 Types of provocation:
 Misdirected reaction: A provokes B, B mistakenly kills C – jurisdictions are split on
whether they allow this as a defense.
 Non-provoking victim: A provokes B, B intentionally kills C – generally doesn’t count
 Defendant elicits provocation: no uniform view, some jurisdictions deny defense to initial
 Minority view: Whether there was provocation should be a jury question – question of fact
- Cooling time: If there is sufficient time between provocation and act, it is no longer applicable, and ∆
is deprived of voluntary manslaughter reduction.
 However it may sometimes be rekindled after cooling period.
MPC: 210.3(1)(b)
- Manslaughter a homicide which would otherwise be murder is committed under the influence of
extreme mental or emotional disturbance for which there is a reasonable explanation or excuse –
Heat of Passion: must result from provocation which prevented defendant form reflecting upon his
actions. Heat of passion reaction must be immediate
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Extreme Emotional Disturbance (EED) test. Replaced Heat of Passion defense. Not necessarily
spontaneously undertaken. Rather, it may be that a significant mental trauma has affected D’s mind for a
substantial period of time, simmering in the unknowing subconscious and the inexplicably coming to the
 Reasonableness of excuse: Determined from the POV of a person in the actor’s situation under
the circumstances as he believes them to be.
Girouard v. State (MD, 1991), stabs wife, words alone aren’t sufficient
 Girouard (∆) stabbed and killed his wife after an argument in which his wife ridiculed his sexual
ability, told him that she did not love him, and demanded a divorce. She also told him that she
had filed charges against him and that he would likely be court-martialed. After this, ∆ lunged at
his wife with a kitchen knife and stabbed her nineteen times. Convicted of 2nd degree murder.
 Rule: Words alone do not constitute adequate provocation to mitigate murder to manslaughter
– no matter how taunting.
 Except: This view has been relaxed when words disclose facts that could be sufficient if ∆
had observed them directly.
 Court gives categories for adequate/reasonable provocation - extreme assault or battery
upon the defendant; mutual combat; defendant's illegal arrest; injury or serious abuse of a
close relative of the defendant; or the sudden discovery of a spouse's adultery.
Maher v. People (1862), sex in the woods, words are enough, q of fact (Minority view)
 Maher (∆) was charged with an assault with an intent to kill Hunt. Lower court rejected ∆’s
offered evidence that he saw his wife and Hunt go into the woods half an hour before he assaulted
Hunt. On his way to do so, a friend informed him that Hunt and ∆’s wife had had sex in the
woods the day before. ∆ was charged with assault with intent to kill.
 Rule: If a killing, though intentional, is committed in the heat of passion produced by a
reasonable provocation before a reasonable time has lapsed for the passion to cool (COOL
DOWN PERIOD) and is the result of temporary excitement rather than one's personal depravity,
it is manslaughter rather than murder.
 Court: Reasonable provocation standard is essentially a question of fact for the jury.
People v. Casassa, (NY Court of Appeals, 1980) – obsessed neighbor, EED (MPC language)
 Casassa (∆) became romantically obsessed with a neighbor. After she consistently rejected his
advances, he confronted her with a knife, stabbing her to death. Charged with murder.
 ∆ argued that whether he was under extreme emotional disturbance (EED) sufficient to mitigate
murder to manslaughter should be viewed from entirely subjective viewpoint.
 Trial court: ∆’s reaction was so peculiar to him it would be unreasonable to mitigate the crime.
Convicted of second degree murder --> he appealed.
 Rule: Whether a defendant was so emotionally disturbed as to lessen murder to manslaughter
involves both an objective and subjective analysis.
 Subjective: whether the ∆ was in fact under EED.
 Objective: whether or not disturbance was reasonable.
Final thoughts on provocation:
- Is it about empathy?
 Focusing too much on empathy is too individual – everyone will have a different metric
 MPC takes seriously idea of empathy – you end up with something that doesn’t look like original
provocation doctrine – flexible enough to include:
 SR 51-54 – Gigi Jordan Convicted of Manslaughter, not Murder, in Son’s Killing – EED test
- Is it about vengeance?
 People aren’t comfortable with endorsing vengeance – this route gets rid of reasonableness
 Maher dissent – “innocent as well as the guilty might suffer”
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2. Unintentional Killing
a) Civil or Criminal?
 Why do we want to punish negligence? Deterrence, high degree of harm caused, adults can work on
carefulness and should be held accountable.
 Criminal = aware of risk
 Not criminal = unaware of risk
CL: “wanton or reckless conduct”
Commonwealth v. Welansky (MA, 1944) – fire in club, “wanton/reckless” omission, duty to act
 Welansky (∆) owned a nightclub. Access limited, few emergency exits were either blocked or
barred to prevent patrons from leaving without paying. Fire broke out, escape was impossible for
many, dozens killed. ∆ convicted of involuntary manslaughter, he appealed.
 Rule: A manslaughter conviction may be based on omissions as well as affirmative acts.
 Involuntary manslaughter = wanton or reckless conduct resulting in a homicide.
 Where one has a duty to act, recklessness may exist in failure to perform the duty.
 ∆’s failure to provide safety for patrons went beyond mere negligence into recklessness.
MPC: Manslaughter (210.3) and negligent homicide (210.4)
- Distinguished by whether ∆ was aware of unwarranted risk.
 Manslaughter requires recklessness (consciously disregarded a substantial and unjustifiable
risk, involving gross deviation from standard of care).
 Negligent homicide requires negligence (should have been aware of the risk).
Reckless: People v. Hall (Supreme Court of Colorado, 2000) – skiers collide
 Hall (∆) was an employee of the ski resort, collided with an killed another skier.
 Court: Probable cause to charge felony reckless manslaughter where a death caused by a
experienced skier occurred while the defendant was clearly skiing too fast for the circumstances.
 Reckless = consciously disregard substantial and unjustifiable risk, involving gross deviation
from standard of care.
- Substantial: ∆’s clearly excessive speed, lack of control, and bad technique constitute
the rare but substantial risk that death would result from skiing – even less-than-50percent risk of death can be sufficiently substantial if the circumstances so warrant.
- Unjustifiable: Because ∆’s fast skiing served no purpose but his own pleasure, the
substantial risk of death was not justified.
- Gross deviation: ∆’s extreme violation of his statutory duty of care while skiing could
constitute the gross deviation from the standard of care required for the charge.
- Consciously: ∆’s experience and training could support a reasonable inference that he
consciously disregarded the substantial risk of death.
 Custom – what people are expecting in a situation - ∆ was taking a risk that was much higher than
the other participants were expecting.
Negligent: State v. Williams, abscessed tooth
 Native American couple with low IQ and education have a child who has a tooth infection. They
do not take the child to a doctor because they are scared the child will be taken away. The child
dies two weeks later, after not eating, of pneumonia. Convicted of negligent manslaughter.
 Issue: Should the parents have been aware of the “substantial and unjustifiable” risk?
 Holding: Yes, the parents were charged with manslaughter by failing to supply the child medical
attention, which they had the duty to do. Counter Claim: there was a substantial risk that their
child would be taken away from them if they saw a doctor (b/c of racism)
 What about education level? The symptoms were such that any reasonable parent would have
sought medical attention.
 MPC on individualization for reasonableness standard:
 If someone is blind, just suffered heart attack, etc – these would be considered.
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Heredity, intelligence or temperament wouldn’t be considered.
b) Murder or Manslaughter?
MPC 2.08(2), 210.2(1)(b)
Murder: 210.2(1)(b): committed recklessly under circumstances manifesting extreme indifference
to the value of human life.
- Manslaughter: 210.3(1)(a) – committed recklessly
 2.08(2) – intoxication doesn’t matter for recklessness.
CL: malice: “willful and wanton disregard”
- separates murder from manslaughter
Inferring malice from recklessness:
Commonwealth v. Malone (PA, 1946) – Russian poker, recklessness & malice
 Malone (∆), age 17, obtained a gun. His friend, Long, age 13, obtained a cartridge. ∆ suggested
they play “Russian poker” and Long consented. ∆put the gun to Long's head, fired three times,
and killed him. They were on friendly terms at the time, and ∆ testified he had no intention of
harming Long. ∆ contended he was only guilty of ary manslaughter.
 Rule: When an individual commits an act of gross recklessness for which he must reasonably
anticipate that death to another is likely to result, he exhibits that wickedness of disposition and
cruelty that constitutes the malice required for a charge of second-degree murder.
 Court: malice is not necessarily malevolent to the deceased. Affirmed murder conviction.
United States v. Fleming (1984) – drunk driver, intent not required for second degree murder
 Fleming (∆), with a blood alcohol level of over .30, drove for several miles at speeds of over 50
mph in excess of the posted limit, at times driving on the wrong side of the road to avoid traffic.
He lost control of his vehicle and hit another vehicle head-on, killing the occupant. He was tried
and convicted of second-degree murder. He appealed, contending that the record could support
only a manslaughter conviction.
 Rule: second-degree murder does not require intent to kill.
 Court: mental state required is malice aforethought – may be satisfied by wanton conduct
grossly deviating from a reasonable standard of care, so that it may be inferred that ∆ was
aware of a serious risk of death or serious bodily harm.
 MPC 2.08(2) – doesn’t care about intoxication.
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c) Felony Murder
- Killing during the commission of a felony or attempted commission of a felony.
- Still need causation requirement.
MPC: 210.2(1)(b)… MPC isn’t crazy about Felony Murder, and instead covers it under recklessness
with extreme indifference
- Recklessness and indifference for murder are presumed if:
 Engaged in or accomplice in the commission of, attempt to commit, or flight after committing or
attempting to commit:
 Robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary,
kidnapping or felonious escape.
STRICT LIABILITY --> no mens rea
Statutory reform:
- Minority (one state, Michigan) abolished felony murder.
- Majority follows traditional CL, but limits list of felonies, and allows defenses (co-felon not intending
to kill).
 Some jurisdictions say it matters who caused the death.
Regina v. Serne (1887) – NOT the standard, set house on fire “act known to be dangerous”
- It was alleged that Serné (∆) deliberately set his house on fire to collect insurance on it. ∆, his wife,
two daughters, two sons, and a servant were in the house at the time of the fire. One son burned to
death. Indicted for murder.
- Rule: Any act known to be dangerous to life and likely, in itself, to cause death, done for the purpose
of committing a felony, and which causes death, is murder.
 Court says that the felony murder law should be narrowed. More reasonable if it is an act known
to be dangerous
People v. Stamp (1969)- gunpoint robbery heart attack, no foreseeability necessary
- ∆ tries to rob somebody at gunpoint, who has a heart attack and dies.
- Issue: In California, may a defendant may be convicted of murder if, during the attempt or actual
commission of an inherently dangerous crime, a killing occurs?
- Holding: Yes, if it is a direct cause, even if there was no foreseeability.
- Majority/US view – as long as homicide is direct causal result, felony murder rule applies whether or
not death was a natural or probable consequence of the robbery.
King v. Commonwealth (1988) – marijuana plane crash, causation problem
- plane crashed while carrying 500 pounds of marijuana.
- Court held that drug-distribution crime was not proximate cause of death – causation problem
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1. Rape Actus Reus
a) Actus Reus: Force
Traditional Rape Law: Resistance needed
o Courts want to be hyper-protective of . Otherwise it would be very easy to destroy a man’s life.
There must be evidence BARD to convict  of rape. Usually evidence is only he said/she said.
Resistance Requirement: Brown v. State (WI, 1906)
 Facts: ∆ grabbed victim (neighbor) in a field between their homes and they had sex. Victim said
that she tried as hard as she could to get away, and only requested once that he let her go. She
didn’t have bruises or ripped clothing.
 Rule: To uphold a rape claim, the victim must show utmost resistance to the sexual act alleged.
 Court: Must be “most vehement exercise of every physical power to resist” the act.
- No evidence that she used force to push him off her.
Threat of Force: State v. Alston (1984)
 ∆ and victim had been in a consensual sexual relationship, which was abusive. The victim left the
defendant to live with her mother. D approached V at school, he made threats about fixing her
face. D took V to his friends house and asked if she was ready. V replied that she wasn’t going to
have sex with him. D told her to lie on the bed, he pushed her legs apart and had sex with her.
The victim did not push him away.
 Holding: D was found not guilty because there was a lack of evidence showing force or threat
of force. Threat of force needs to happen soon before sex to show that it applied.
 Court: Second degree rape requires that the defendant obtain sexual intercourse both by force
and without the victim’s consent.
- Force is demonstrated by actual force or by threats that are intended to overcome the
will of the victim to resist.
 Resistance doesn’t need to be shown if there is threat of force.
 Threats of bodily harm sufficient to reasonably induce fear are enough.
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Modern Rape Law:
Commonwealth v. Berkowitz (PA, 1992) Force = more than what is intrinsic in sex
 College friends: Victim went to ∆’s room to look for his roommate. ∆ was sleeping in the room,
but woke up when the victim entered. He urged the victim to hang out for a while, she complied,
sat on the floor and he sat next to her. ∆ began making sexual advances such as kissing and
fondling. The victim said no but never resisted or screamed. ∆ then had sex with the victim, he
said that though she repeatedly said no, she moaned passionately. ∆ locked the door but it was
locked from the inside.
 Rule: Verbal resistance alone is insufficient to show that sexual intercourse was obtained by
 Forcible compulsion can be physical or mental coercion. Whether force is sufficient to
prove rape depends on relevant factors:
- Age of victim, physical sizes, mental conditions, atmosphere where incident takes place,
whether ∆ had control or dominance over the victim, whether victim was under duress.
 Court said there was no mental coercion (similar ages, daytime, they knew each
other), and that there was no threat of forcible compulsion (never threatened her)
 Court also said no actual force because she could have left the room.
 Court only relies on verbal resistance when combined with forcible compulsion or threat
of forcible compulsion.
State v Rusk (MD, 1981) – Genuine, reasonably grounded fear
 Facts: Victim met ∆ at a bar, she drove him back to his house. This was in a neighborhood at
night that she was unfamiliar with. He took her keys away and told her to accompany him to his
room. She told him she wanted her keys back and wanted to leave, he pulled her onto the bed and
had intercourse with her. There was like choking on behalf of the D and the victim pointed a look
in his eyes. She asked him “If I do what you want, will you let me live?” he replied “Yes”
 Rule: The lack of consent element essential to a rape conviction can be established by proof of
resistance or by proof that the victim failed to resist because of a genuine, reasonably
grounded fear. Here, the jury could rationally find that essential elements of second-degree rape
had been established – conviction affirmed.
 Reasonably grounded fear obviates the need to prove resistance. Kind of fear:
- “fear of death or serious bodily harm, or a fear so extreme as to preclude resistance, or a
fear which would well nigh render her mind incapable of continuing to resist, or a fear
that so overpowers her that she does not dare resist.”
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Threat of force can be explicit or implicit, intended or unintended, as long as there is
reasonably grounded fear.
State v. Burke
 , a police officer was convicted of two counts of first degree sexual assault after he picked up an
alcoholic woman while she was hitchhiking.  never orally threatened the victim with violence if
she did not perform oral sex on him.
 Rule:  coerced his victim to submit by threatening to us force or violence on her that the victim
reasonably believed that the accused held the present ability to execute. This case is special
because  was an armed policeman (man of authority) The threat was implied from the onset.
State v. DiPetrillo (RI, 2007) – Implied threat (power imbalance)
 19 year old employee was pulled onto the lap of the 30 year old boss where he started kissing
him. At first she kissed him back, but then she declined. She tried to avoid the situation both
verbally and with physical resistance. ∆ continued to pull Jane’s pants down and digitally
penetrated her vagina. She was then able to stand up and walk away. ∆ was convicted of first
and second degree sexual assault, requiring force or coercion
 Holding: The application of some minimal force in addition to the psychological pressure of
authority did not satisfy the force and coercion elements beyond a reasonable doubt. Court
did not want to extend the Burke analysis of implied threat to the facts in this case.
Sex without
Consent =
State in the Interest of M.T.S (NJ, 1992) – Minority view, force = sex without consent
- Facts: M.T.S. (∆), a 17-year-old boy, engaged in sexual penetration of a 15-year-old girl to which she
did not consent, but there was no evidence of unusual or extra force or threats to accomplish the act of
- Rule: The element of “physical force” in the crime of sexual assault is met simply by an act of
nonconsensual penetration involving no more force than necessary to accomplish that result.
 NJ is one of few states that hold nonconsent as sufficient to prove sexual assault.
b) Actus Reus: Consent
Traditional Common Law: subjective unwillingness + external refusal
- Victim has to establish both subjective unwillingness and external refusal.
- Today if physical force is not necessary how is non-consent proven?
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Totality of the Circumstances Approach: Verbal resistance (saying no) plus additional behavior
that make unwillingness clear
Defective consent
Maturity: statutory rape is a strict liability crime. Below a certain age, victim does not have the
capacity to consent to sex
Pressure and threats
 can violate consent (student, principal, employer, employee) as can positions of authority or trust
(teacher, doctor, lawyer?)
Incapacity (Drugs/Alcohol)
 Drugs etc – particularly if the victim was unconscious. Nearly all states impose liability for
drugging, however some don’t impose liability if a 3rd party drugged a victim or one who is short
of complete unconsciousness.
 MPC: 213 (1)(b) - A male who has sexual intercourse with a female not his wife is guilty of rape
if: he has substantially impaired her power to appraise or control her conduct by administering or
employing without her knowledge drugs, intoxicants or other means for the purpose of preventing
 In many states the barrier to liability is higher if the victim has freely chosen to take intoxicants.
Intellectual Disability
 MPC imposes liability when D knows the person consenting to sex suffers from a mental disease
or defect which renders her incapable of appraising the nature of her conduct
State v. Haddock (N.C. Ct. App 2008)
 Woman got drunk, accompanied the defendant to his apartment, collapsed on his bed. The
court held that the statute was not intended for the protection of alleged victims who
voluntarily ingested intoxicating substances through their own actions.
People V. Giardino (Cal 2000)
 16 year old girl gets drunk and actively participates in many sex acts. The court held that
intoxication could invalidate consent even when it was not physically incapacitating. The
focus should be on the effect of the intoxicants on the victim’s powers of judgement rather
than on the victim’s power of resistance
State v. Al-Hamdani (Wash 2001)
 The court convicted the defendant on the basis of expert testimony that a BAC of .15 was
sufficient to render the victim incapable of giving consent.
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Consent Questions:
- Were the parties capable of giving consent? Was consent given voluntarily? Do the parties know what
they are consenting to?
2. Rape Mens Rea
 Mens rea becomes more important once you take out the force requirement – did ∆ know there was a
lack of consent?
 Possibilities for MR:
- Purposely: person knows there’s no consent (not on the table)
- Recklessness: consciously aware of risk there is no consent but disregards it
- Negligence: have to be very careful. If a reasonable person would have realized there’s no consent,
not realizing it make it rape.
- Strict liability: Just show no consent and don’t even worry about what rapist is thinking.
 Forces people to be very careful
 Modified strict liability: If there’s evidence a partner said no, after that the ∆ assumes the risk
there was no consent.
 Does strict liability standard lead to unfair outcomes?
 CL MR for non-consent:
- Majority: Mistakes are defenses if the error is honest and reasonable. Negligence and Recklessness is
enough for conviction.
- Minority: In the absence of consent, ∆ is strictly liable. Focuses on the culpability of use of force.
- 2nd min view: in absence of resistance, prosecution must prove that ∆ is reckless.
a) Commonwealth v. Fischer (PA, 1998), ∆’s subjective belief is not a defense
 Facts: ∆ was convicted of raping a fellow college student with whom hours before the rape he had
consensual sexual intercourse. ∆ argued at trial that in light of the prior encounter, he reasonably believed
the actions were consensual. The sex before had been rough sex.
 Holding: A defendant's subjective belief that a victim consented to sexual conduct is not a defense to
the crime of rape.
- Notes that courts elsewhere have provided jury instructions regarding the reasonableness of ∆’s
b) Deception:
 Fraud in the factum: The majority view is that it violates consent. This is a rare case and works mostly
when a victim consents to sex with someone who they think is their husband, and the lights are off…that
person turns out not to be who they say they are.
- Doctor says, “I need to use an instrument on you, inserts penis.
 Fraud in the inducement: “my dog just died” The majority view is that in most case, the consent is
effective – does not invalidate consent.
 You run into 1st amendment issues. This policy reveals paranoia of convicting the innocent.
 However it can work if the fraud “changes the essential nature of the act”
People v. Evans: Man pretends to be a psychologist doing a magazine article. He seduces a young
woman at the airport and brings her home. He told her she’s stupid for coming to a strangers home and
said he could “rape” or “kill” her. Ruling: this is a case of fraud in inducement. This man’s actions,
though morally reprehensible do not rise to the level of rape. There was no threat of force here, according
to the court.
Boro v. Superior Court: Dr. tricked woman into having sex with him by saying she needed a certain
man’s sperm in order to be cured of a life threatening illness. Ruling: This is fraud in factum. Victim did
not even know that she was consenting to sex. Consent not given to sex here. It was given to the cure for
her fake disease.
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Sexual Intercourse
Under Age/ Prison
Guard Prisoner/
Other Status
Based Categories
3. Rape Shield Laws: Limit the admissibility of evidence bearing on a rape complainant’s prior sexual
behavior. Some states will only permit prior sexual history when it involved Defendant
a) This law exists because we don’t want to retraumatize the victim through the legal process.
b) Traditionally, if something is relevant, it’s allowed in as evidence. But if it’s prejudicial, it shouldn’t come in.
 Prejudicial aspects > probative value…then it can be barred from evidence
c) In practice:
 no past sexual history evidence of victim allowed, unless it was with the ∆.
 Varies by jurisdiction.
d) Why should anything besides what happened that day be relevant? We want ∆ to be able to put together a
defense (due process rights).
e) But even if it’s unfair for ∆, it’s good for deterrence. But might we be convicting the innocent? But
overdeterrence is bad as a policy. We want people to have sex.
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 Why do we punish for attempt?
o We shouldn’t reward evil people who have bad luck (in that they failed to commit crimes)
o Deterrence: convince people not to try to commit crimes because they will face harsh penalties
o Criticisms: legal system should treat attempts differently
 At what point along the spectrum of actions/thoughts are we punishing people?
o Intent-focus – cons:
 People change their minds
 Criminalizing thought
 Intent --> subjective
o Conduct-Focus – cons:
 Interventions come too late
a) Intent Focus: McQuirter v. State (1953), “attempted rape”
 McQuirter (∆), a black man, followed a white woman down the street and then up the street. Convicted of
attempt to commit an assault with intent to commit rape.
 Holding: Attempt to commit an assualt with intent to rape is just an attempt to rape that hasn’t proceeded
far enough – jury just needs to find that ∆ actually intended to rape the victim.
- Court: jury may look at all circumstances, including social conditions and customs founded upon
racial differences. (victim was white and ∆ was black)
 This is intent-focused.
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1. Attempt Mens Rea
 CL: Results Crimes and Conduct Crimes
a. Results Crimes: Requires purpose (specific intent) to produce the proscribed result, even when
recklessness or some lesser MR would suffice for conviction of the completed offense.
i. Example: Attempted murder requires specific intent to kill, but it is sufficient for murder that ∆
engages in conduct knowing high probability that doing so will kill someone.
b. Conduct Crimes: MR is the same as needed for the complete crime – NO causation requirement.
 MPC: 5.01(1) (definition of attempt) 5.01(2) (substantial step)
o (1) A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise
required for the commission of the crime, he:
 (a) purposely engages in conduct which would constitute the crime if the attendant
circumstances were as he believes them to be; or
 (b) when causing a particular result is an element of the crime, does or omits to do anything
with the purpose of causing or with the belief that it will cause such result without further
conduct on his part; or
 (c) purposely does or omits to do anything which, under the circumstances as he believes
them to be, is an act or omission constituting a substantial step in a course of conduct
planned to culminate in his commission of the crime.
 People v. Gentry (IL, 1987), gasoline on gf, specific intent to kill
o Gentry had a fight with his gf, poured gasoline on her. She went near the stove and caught on fire. D
smothered the flames with a coat but the victim was badly burned.
 Issue: Did the court err in the instruction of murder because the crime of attempted murder
requires specific intent to kill? Must there be specific intent to commit the attempt crime?
 Holding: Yes, specific intent to kill is the pivotal element of that offense, the intent to do
bodily harm or knowledge that it may lead to death is not enough.
 Smallwood v. State, (MD, 1996) – HIV, natural and probable result
o Smallwood (∆) was convicted of three counts of assault with intent to murder his rape victims based
on the awareness that despite the fact that he knew he was HIV positive he did not use a condom in
any of his attacks.
o Rule: NO INTENT. Before intent to kill may be inferred based solely on the defendant's exposure of
a victim to a risk of death, it must be shown that the victim's death would have been a natural and
probable result of the defendant's conduct.
 Court said that HIV was not the same as firing a deadly weapon. Though trier of fact may
determine intent to kill based on circumstantial evidence, death is not a probable consequence
of exposing someone to HIV virus
 Conduct Crime: Regina v. Khan
o ∆ convicted of attempted rape, intent is the same.
o MR is identical, intent to have intercourse + knowledge of/recklessness to woman’s lack of consent.
 Strict Liability: Commonwealth v. Dunne
o Intent to commit statutory rape does not require a mens rea for the child’s age. It is a strict liability
crime, so the attempt to have sex, if the child is underaged is enough for conviction.
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2. Attempt Actus Reus: Preparation or Attempt?
 Last Act Test
o Must have taken the last possible step – not used anywhere.
o Problems with Last Act Test:
 Intervention will usually be too late
 When it looks like the person is culpable enough from a moral perspective, we still can’t charge
the person with attempt because they haven’t completed the last act
 Dangerous Proximity Test
o Cases where a person comes dangerously close to successfully committing the crime he intended to
commit-looks at actions left to be taken, the distance to consummation must be short.
o The acts must come or advance very near to accomplishment (Rizzo)
People v. Rizzo (NY, 1927) - driving looking for person to rob…dangerous proximity test
 Rizzo (∆) and three others were arrested while they were driving around New York City looking
for a payroll messenger they intended to rob. Appeal from conviction of attempted robbery.
 Rule: Attempt is committed when an act is performed which is so physically close to the
contemplated victim or scene of the crime that the completion of the offense is very likely but for
timely interference.
 Court – probability of completion can only occur when ∆’s actions bring him in close proximity
to the victim or place of the crime.
 ∆’s actions never brought him near the person he attempted to rob.
 Equivocality Test
o Not how far ∆ has gone, but how clearly his acts bespeak his intent. This test may be applied if many
actions are left to be taken.
o Question to consider: Have you done things suspicious enough where we can conclude unequivocally that
you were attempting to commit the criminal act?...if yes, then you are guilty of attempt
o This solves the issue of the dumb thief (ex. Man who tries to rob a bank but spelled “money”
wrong)…Under the other tests, he’d probably not be guilty. Under equivocality test, he would be.
 Substantial Step Test (MPC 5.01(2))
o 50% of jurisdictions use this test – diluted version of dangerous proximity test --> dangerous proximity +
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You need a substantial step that is strongly corroborative of the actor’s criminal intention.
United States v. Jackson (1977) – bank robbery
 3 people intended to rob a bank. The police caught one and he told them of the plan. Installing
fake cameras, changing license plates, guns etc. The police on that date catch the rest of them
with the things he said they had. Court cites MPC 5.01
 Rule: To prove an “attempt,” it must be shown that the defendant acted with criminal purpose
and that he engaged in conduct constituting a substantial step toward commission of the target
MPC 5.01(2) – Conduct which may be held to constitute substantial step – must be strongly corroborative
of actor’s criminal purpose:
(2) Conduct Which May Be Held Substantial Step Under Subsection (1)(c).
 Conduct shall not be held to constitute a substantial step under Subsection (1)(c) of this Section
unless it is strongly corroborative of the actor’s criminal purpose. Without negativing the
sufficiency of other conduct, the following, if strongly corroborative of the actor’s criminal
purpose, shall not be held insufficient as a matter of law:
 (a) lying in wait, searching for or following the contemplated victim of the crime;(b)
enticing or seeking to entice the contemplated victim of the crime to go to the place
contemplated for its commission;(c) surveying the place contemplated for the
commission of the crime;(d) unlawful entry of a structure, vehicle or enclosure in which
it is contemplated that the crime will be committed;(e) possession of materials to be
employed in the commission of the crime, which are specially designed for such unlawful
use or which can serve no lawful purpose of the actor under the circumstances
3. Crimes of Preparation
i. Substantive crimes of preparation – sometimes preparation or certain crimes is a crime itself. This
allows law to get involved earlier but there is concern about going overboard.
1. Burglary, assault, mere preparation... stalking – see p. 661-663
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4. Attempt Defense: Impossibility
a) MPC-No Impossibility Defense
If the attendant circumstances were as  believed them to be and thing  was trying to do was
criminal, then he is guilty of attempt
o Ex: If circumstances in Berrigan were as  believed (i.e. delivering the letters was illegal),
then he’d be guilty of attempt
b) Factual Impossibility – traditionally NOT a defense
1. State v. Smith (NJ, 1993) – HIV case
 HIV positive inmate, spat on officer and bit his hand saying that now he had HIV and would die.
 Holding: The court held that impossibility was irrelevant so long as ∆ believed that it was possible to
infect and kill the officer.
c) Legal Impossibility – traditionally a valid defense
1. People v. Jaffe (NY, 1906) – not stolen goods
 A man offered to buy goods that he thought were stolen, but the goods in fact had been previously
returned to their rightful owner so that they were no longer stolen property.
 Holding: Belief of nonexistent fact is not enough – no matter what his motive was, act intended was not a
2. United States v. Berrigan (UC 3rd Circuit 1973) – letters in jail
 Illegal to send an unauthorized letter out of jail. D thinks he’s doing it w/o permission, but warden
actually knows, and is ok about it.
 Holding: Attempting to do that which is not a crime is not attempting to commit a crime.
3. People v. Duglash (NY 1977) –shooting dead guy
 D shoots victim 5 times after he had already been shot and is dead. D does not know that this man is dead.
 Factual impossibility argument: Trying to kill someone who’s already dead is factually impossible
 Legal impossibility argument: Shoot a dead person is nothing remotely like homicide
 MPC approach: Mental State: Sufficient evidence to believe D thought actor was alive at the time he
shot him.
 Court Holding: The murder conviction cannot stand, because there is not enough evidence that the
victim was alive. But they did find intent to kill a person, and the conviction can therefore rest on the
lesser crime of offense. It is no defense that the crime was factually or legally impossible provided that
the crime would have been possible had the circumstances been as D believed them to be.
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4. United States v. Oviedo (1976) – fake drug sting
a. Drug dealing sting. They find more of what looks to be the drug at the guys house, it turns out just to be a
legal substance. At trial, D stated that he knew the substance was not the drug and was trying to rip the
agent off.
b. Holding: In order for ∆ to be guilty of a criminal attempt, the objective acts performed without any
reliance on the accompanying mens rea, mark the ∆’s conduct as criminal in nature.” The court held that
the objective acts were consistent for a non-criminal enterprise and overturned.
5. Hypo: Man solicits sex from a person who he believes is underage
 Rule 1: Statutory rape is a strict liability crime…Even if the victim was not a minor,  would still be held
strictly liable
 Rule 2: Even if statutory rape is not a strict liability crime, the fact that the victim is not a minor is a
factual impossibility. That is,  intended to commit a crime (i.e. statutory rape). That the victim is not a
minor does not exculpate  of his attempt because had the circumstances been as  believed, it would
have been statutory rape
6. Attempt Defense: Abandonment
a. People v. McNeal – kidnaps woman lets her go
∆ kidnaps a woman and tries to rape her, she pleads with him to let her go, he does. The court
holds that this was not voluntary and was in fact in response to her resistance.
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1. Defense: Self-Defense
 Defining feature: presence of an aggressor
 Requirements:
 Actual Belief: There must have been a threat, actual or apparent, of the use of deadly force against the
 Imminence: The defender must have believed that he was in imminent peril of death or serious bodily harm.
o The threat must have been unlawful and immediate.
 Necessity: His response was necessary to save himself therefrom.
o Duty to retreat
 Reasonable Belief: These beliefs must not only have been honestly entertained, but also objectively
reasonable in light of the surrounding circumstances.
o Why Require Reasonable Belief?
 Otherwise, people would be able to set their own standards for permissible use of force no
matter how aberrational or bizarre the belief
 Proportionality requirement: Manner of defense must be proportionate to the threat
o Ex: If I come at you threatening to tickle you, you cannot then shoot me
a. Reasonable Belief Requirement
Elements: actual + reasonable belief
 Actual belief of imminent death or serious bodily harm. – you don’t have to fear it.
 Reasonable belief of imminent death or serious bodily harm
o Need an objective standard
 Based on the circumstances and the ∆’s background. This is where battered wife can also
play a role.
People v. Goetz (NY, 1986) – subway shooting
 Goetz shoots 4 black kids that come up to him on subway even though they were unarmed and
demonstrated no weapons. One of the kids ends up permanently paralyzed. They told him to give him $5.
They did have screwdrivers in their pockets. Goetz was mugged in the past.
 Holding: A justification of self-defense may be permitted when the defendant’s belief was mistaken, but
only if there was an objectively reasonable basis for the belief in the first place. In this case, Goetz argued
that that an objective element would take away the jury’s ability to consider the circumstances. Courts
may consider the situation, including the defendant’s knowledge and prior experience, in determining
whether the belief was reasonable. The prosecutor’s instructions were sufficient for a grand jury, and the
charges are reinstated.
State v. Kelly – battered women’s syndrome testimony
 Kelly (∆) appealed from a decision affirming her conviction of reckless manslaughter, contending that the
trial court erred in ruling that expert testimony concerning the “battered-woman's syndrome” was
inadmissible on the issue of self-defense.
 Rule: battered women’s syndrome is appropriate subject for expert witness testimony on the issue of selfdefense.
o Goes to her state of mind – her experience was common among women in similar relationships –
that she believed she was in imminent danger.
o NOT for the objective reasonableness of the belief.
 Cycle of abuse: tension building -> battering -> honeymoon stage
 Idea of necessity -> if you admit battered women’s syndrome, does it take away idea of reasonableness?
b. Imminent Danger Requirement
 Must have reasonable belief that harm is about to occur imminently. The actor cannot act preemptively.
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 Can’t do preemptive strike and cant do retaliation – courts worried about people taking law into their own
hands, losing the “monopoly on violence”.
State v. Norman – kills husband in sleep – no “homicidal self-help”
a. Battered wife, husband threatens to kill her she kills him in his sleep. She tried to get help, but he just
dragged her back.
b. Holding: The courts understand why she did this, but during sleep there was no imminent danger.
The courts disfavor the “homicidal self help”. She is convicted of voluntary manslaughter.
Commonwealth v. Sands – shoots husband watching tv
c. Battered wife, husband threatens to kill her and her children. While he is in bed watching TV she
pulls a gun and shoots him 5 times.
d. Holding: The court held that though she believed she was in danger of harm and death, she didn’t get
the defense because there was no imminent danger.
State v. Schroeder – stabbed cell mate
e. Stabbed cell-mate in his sleep. ∆ was convicted of assault with intent to inflict bodily harm. ∆
incurred large debt to cellmate who threatened to “collect” the money owed in his sleeps.
f. Holding: There was no reason for him to think it an imminent danger, other than the threat.
g. Dissent: Could not be expected to stay awake all night every night waiting for the attack. The jury
could have reasonably found that the use of force was necessary to protect him against attack on the
present occasion.
Ha v. Alaska – hammer guy, inevitable v. imminent
h. The victim Buu, beat ∆ severely and was pulled away by bystanders. Buu left, but came back with a
hammer and tried again. Before leaving he shouted that he would kill ∆. ∆ spent sleepless nights
thinking about the threat and the reputation. ∆ got a rifle and killed him. Judge withheld the selfdefense issue.
i. Holding: There was reasonable fear, but there is a difference between inevitable and imminent.
Thus the trial court did not err.
c. Initial Aggressor
 If you start the conflict, you don’t get to claim self-defense (unless there has been a cooling off period)
 May regain right to self-defense if withdrawal from aggression communicated expressly or impliedly or, in some
jurisdictions, when non-lethal aggressor is met with grossly excessive response provided he exhausts every
alternative before using deadly force.
 Mutual combat: both get aggressor status
State v. Peterson (1973) – windshield wipers “self –generated”
 People come to steal windshield wipers form Peterson, but they were on the way out when he comes back
with a gun. They start moving forward towards him, and he kills them.
o Holding: Not a defense if you are the aggressor.
o Self-generated necessity to kill
d. Retreat (necessity)
 Traditional CL: True man doctrine - not obligated to flee
 Current CL: Law is mixed, sometimes requires retreat where possible.
 “Castle” Exception: Dwelling - Do not have to retreat if you are being attacked in your own home.
 BUT if being attacked by someone you live with, must retreat (creates issues for victims of
domestic abuse)
State v. Abbott (NJ, 1961) – driveway fight
o Abbott and Scarano share a driveway. Sarano’s son got into a fight with Abbott, soon after the dad and
mom cane outside with weapons, one of them being a hatchet. Abbott intentionally inflicted the blows on
them, which all of them got
o Holding: The Model Penal Code says that the use of deadly force is not justifiable if the actor knows he
can avoid the use of such force by retreating with complete safety.
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Thus, the issue is whether Abbott knew the opportunity to retreat with complete safety was present during
the altercation with the Scaranos. The judgment of conviction is reversed due to instructions.
e. Defense of Another
 Pretty much the same as self-defense – some that don’t apply, some differences
2. Defense of Property
 Actual + reasonably belief of:
o imminent loss of property
o necessity of force
o Proportionality (amount of force) --> different for property than for self-defense
Defense of Habitation Exception
o Different jurisdictions have difference rules
o Actual + reasonable belief still applies
o Same as defense of property except deadly force is allowed to prevent
 unlawful entry of his dwelling by the person
 unlawful entry of his dwelling by the person with intent to commit a felony
 unlawful entry of his dwelling by the person with intent to commit a felony that inflicts serious
bodily harm
People v. Ceballos – automatic rifle
o Set up rifle to automatically shoot at garage door if opened after a few thefts.
o Ceballos (∆) was convicted of assault with a deadly weapon when a trap gun he set up in his garage fired
into the face of a teenage boy who broke open the garage door.
o ∆ said shooting would have been justified if he were present.
o Court: Deadly device lacks discretion to determine whether deadly force is necessary.
 Character and manner of burglary must create reasonable fear of bodily harm.
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3. Defense: Necessity
 Defining feature is choice of evils
a. Differences between CL and MPC (3.02)
 NOTE – MPC approach not very popular
Same as MPC:
 Lesser evil chosen
 Reasonable belief of causal efficacy of conduct
to avoid harm
o Slightly different – MPC: “necessity of
conduct to avoid harm”
 No legislative purpose to exclude the
Different from MPC:
 In order to prevent imminent harm
 No legal alternative to prevent harm
 For non-homicide offenses only
 ∆ must be faultless in creating the emergency to
get the defense.
o Ex. Arsonist destroys a house to prevent
burning further houses down. He doesn’t
get necessity defense for the second house.
MPC: 3.02. Justification Generally: Choice of Evils
 Reasonable Belief of Necessity: (1) Conduct which the
actor believes to be necessary to avoid a harm or evil to
himself or to another is justifiable, provided that:
o Lesser evil: (a) the harm or evil sought to be
avoided by such conduct is greater than that
sought to be prevented by the law defining the
offense charged; and
o (b) neither the Code nor other law defining the
offense provides exceptions or defenses dealing
with the specific situation involved; and
o Legislative purpose: (c) a legislative purpose
to exclude the justification claimed does not
otherwise plainly appear.
 No defense for recklessness or negligence: (2) When
the actor was reckless or negligent in bringing about
the situation requiring a choice of harms or evils or in
appraising the necessity for his conduct, the
justification afforded by this section is unavailable in a
prosecution for any offense for which recklessness or
negligence, as the case may be, suffices to establish
 Available for homicide – MPC cares more about
saving multiple human lives.
b. Lesser Evils
Borough of Southwark v. Williams – evils: trespass > homelessness
o Homeless families took shelter in abandoned houses.
o Violation of people’s property rights by providing the homeless with a necessity defense is greater evil
than homelessness
Commonwealth v. Hutchins – evils: marijuana > extreme physical pain
o ∆ convicted of possession of marijuana, necessary because progressive sclerosis
o - no necessity available because public policy issues outweigh an individual’s claim of necessity
Fontes – evils: stealing ~$450 > starving children
o ∆ forged check to buy food for starving kids; economic necessity is not sufficient evil avoided for
Regina v. Dudley & Stephens – stranded at sea
o stranded at sea, 3 men eat cabin boy; killing to save from starvation is not justified
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c. Causal Link
United States v. Schoon – protest of IRS
o ∆ protested involvement in El Salvador by occupying IRS building
o Indirect protest of government policy with a violation of the law does not constitute the necessary
causal link between the choice of evils
d. Torture and Necessity
Public Committee Against Torture v. State of Israel
o Is torture justifiable?
o Necessity defense available to officers who use physical interrogation means when there’s an
extraordinary circumstance (when it is necessary to save lives)
Bybee Memorandum
o On use of torture by US government against terrorists
 Posits that a necessity defense may be available for the torture of these terrorists because the
benefit of the possibility that many more lives will be saved outweighs the evil of torture itself
Imminence problem
MPC values saving multiple lives more than CL.
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 You aren’t being held accountable for things that should NOT have been done.
a. Duress Defense
 Defining feature is coercion
a. Policy behind Duress
 Deterrence: You can’t deter people in these situations
o Counter: the more tempting it is to commit a crime, the higher the punishment should be.
 Retribution: there is only so much the government should expect from people.
o Being cowardly is ok sometimes.
1. MPC: 2.09 - Duress
 (1) It is an affirmative defense that the actor engaged in the conduct charged to constitute an offense because he
was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of
another, which a person of reasonable firmness in his situation would have been unable to resist.
 (2) The defense provided by this Section is unavailable if the actor recklessly placed himself in a situation in
which it was probable that he would be subjected to duress. (also for negligently if negligence is culpability)
 (3) It is not a defense that a woman acted on the command of her husband, unless she acted under such coercion
as would establish a defense under this Section.
 (4) When the conduct of the actor would otherwise be justifiable under Section 3.02, this Section does not
preclude such defense.
2. CL
 Criminal act is excused if:
o Committed in response to threat of present, imminent, and impending death or serious bodily harm of
∆ or another, where that threat is of such a nature as to induce a reasonable fear of such injury.
o Not available for homicide
3. Differences between CL and MPC:
o MPC No imminence requirement
 Note - the less effective law enforcement is, the more “tempted” courts will be to play around
with imminence standard.
o MPC No bodily harm requirement
o MPC Available for homicide
Imminence Requirement (CL)
State v. Toscano (1977) – chiropractor insurance fraud
o Chiropractor conspiring to obtain $ from insurance, claimed acted under duress; threat of future harm to
wife - threat of physical violence to ∆/wife induced reasonable fear;
o The trial judge decided that Toscano's (∆) claims that he engaged in certain illegal acts because of fear
that another party would harm himself or his wife in the future were, even if true, insufficient to constitute
a defense of duress— and he so instructed the jury.
o Rule: Duress is a defense to a crime (other than murder) if the defendant engaged in conduct because
he was coerced to do so by the use of, or threat to use, unlawful force against his person or the person
of another, which a person of reasonable firmness in his situation would have been unable to resist.
 Reasonable standard
 Does not have to be immediate or aimed at the accused
Fleming – Korean War propaganda/death march
 Duress not available because court says no imminence of harm
 Possibility he could have escaped from the march
 Threat of bodily harm was not immediate
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Maybe higher standard for military trained people
Regina v. Ruzic – Canada drug case
 Court rejects immediacy requirement.
 US immediacy requirement:
o More about preventing fraudulent acquittals than carrying monopoly of violence
Contento-Pachon – heroin balloons
 ∆ said he didn’t trust law enforcement
 Court says there was no reasonable alternative for him to take
o If he tried to cooperate, consequences would be immediate and harsh
b. Insanity Defense
MPC 4.01. Mental Disease or Defect Excluding Responsibility
o (1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease
or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct
or to conform his conduct to the requirements of law.
o (2) As used in this Article, the terms “mental disease or defect” do not include an abnormality manifested
only by repeated criminal or otherwise anti-social conduct.
M’Naughten Test
 At the time, the ∆ was laboring under such a defect of reason, from disease of the mind, as not to
know the nature and quality of the act he was doing, or if he did know, he did not know he was doing
“Irresistible Impulse Standard”
 By “insane impulse, irresistibly driven to commit a crime.”
Differences between MPC and CL
o Combines two CL tests – “softer” than M’Naughten: “appreciate” instead of “know”
o “Conform his conduct to the requirements of the law” – irresistible impulse
o Deterrence: You can’t deter the insane
 Counter: we should be so tough to deter the sane
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