CRIMINAL LAW
I. INTRODUCTION:
Intro to Criminal Law:
 Definition of a crime – offense against society
 Criminal law is statutory. There is no common law crime in the U.S.; they come from laws
 Distinct from tort (even w/ overlapping terms); criminal law is against society, tort is against a private party
 3 key parts of criminal law:
1. Act
o All crimes need criminal act defined by a statute
o Michelle Carter case– charged with involuntary manslaughter
o Statute in this case = “causing death” … did she actually cause the death?
2. Mind
o Deals with intent (Mens Rea)
o While “causing death” is the act, the charge depends on the intent
 Proven on purpose = murder
 Maybe can’t prove on purpose but also can’t prove it wasn’t = manslaughter
 Prove not on purpose = negligent homicide
3. Defenses
o Mental insanity
o Intoxication (on depression medication)
o Age/infancy
o All defenses are saying “I’m not blameworthy because…” not “I’m not responsible”
1) Intro: Theories of Punishment:
 Ex: Herchenbach case
o Charged with keeping a disorderly house for the following reasons:
 Harm to partygoers (underage drinking and violence from “guests”), hurting neighborhoods, drain
on police resources, prior conduct, and punishment

Theories:
1) Deterrence – punish to prevent/deter future crimes
 General = deterring society at large (Herchenbach case)
 Individual – deterring specific individual
 Incapacitation – deterring by removing certain dangerous people
 Rehabilitation – preventing by trying to help the person (“correctional facilities”)
2) Retribution – punish because individual deserves it (Kant type of thinking)
 Consequences for society are irrelevant (pg. 44 starred)

Criticisms of theories
o Deterrence
 Common objections – statistically ineffective, just use people as a means to an end/tool
 Herchenbach was punished to make the town better (he was used by the town to get what they
wanted)
 Many times, criminal won’t do cost/benefit analysis so the punishment may not deter them (other
motivations do)
o Retribution
 Bias may come into play when deciding what someone deserves – everyone has different moral
compasses and different ideas of what someone’s punishment should be

Why does it matter what theory is better?
o When it comes to certain offenses, such as death penalty, or when it comes to certain ways to convicting
people, such as 3rd strike laws
o White Bear episode - she forgets what happened every day, so she can't learn from her actions; for
deterrence, it doesn’t really deter because it makes people fascinated with it
2) Principle of Legality
o Definition: No one can be punished criminally unless the crime has been defined by the legislature before the
conduct (retroactive crime creation is illegal)
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
Policy rationale:
 It gives notice to the law
 It confines the acts of law enforcement (have to point to something you did that is a defined crime)
 Prevents judicial crime creation (must be done by legislature)
 Safety in numbers for legislators whereas one judge shouldn’t have the same power
 Keeps rule of law - need laws when you are at your most vulnerable (ex: 9/11 made
everyone's emotions grow, and people wanted the criminals punished, but that is when
laws are most needed)
Commonwealth v. Mochan
o Mochan was charged with making numerous telephone calls to the home of a woman at all times of day and
night where he used other profane language to incite her to commit adultery. Mochan was tried before a
judge without a jury and convicted of a misdemeanor. Mochan appealed, arguing that the offense he was
charged with did not constitute a misdemeanor at common law.
o Issue: Should someone be charged for something they have done that goes against common law but is not a
crime in and of itself? Or (more detailed issue) Are harassing phone calls a crime under common law?
o Holding: Yes. The court held that “the common law is sufficiently broad to punish as a misdemeanor…any
act which directly injures or tends to injure the public to such an extent as to require the state to interfere
and punish the wrongdoer, as in the case of acts which injuriously affect public morality….”
 Pennsylvania found D guilty based on common law. They passed a code where they had multiple
layers but at the end, they stated that all common law crimes are allowed
 Statute - offenses punishable at common law remain punishable
o Rule: Any unlawful act which directly injures or tends to injure the public morals or health of the
community is indictable.
o But this case is flawed nowadays. The court didn’t show any cases that would prove that he committed a
common law crime. The closest case they had went the other way. They even cited the fact that Christianity
is part of common law which is flawed, and they said, "it is of little importance that there is no precedent In
our reports which decides the precise question here involved."
3) Statutory Interpretation
 Definition - Interpreting the meaning of statutes (trying to find ambiguous meaning of a word); statutory
construction
o Ex: one statute said, "Exchange created by the state" (people making it knew that it included the federal
exchange but people claimed federal gov't was not a state; this means that states getting federal exchanges
would not be allowed)
 Methods
1) Text -- Ex: "no vehicles on beach" - are bikes allowed?
 Plain text - is it obvious by the text itself? No
 Structure - looking at the word’s relation to other words
 If the statute "no vehicles on the beach" is listed under the Motorized Vehicle Act, then
no it doesn’t help
 Canons
2) Purpose -- why did they do it?
 Purpose of law
 For example, if the sign was put up after someone was hit by car of if it was for the
clean air act, whereas if they were trying to protect turtle eggs, then bikes would not be
allowed
 Legislative history
 Way to show intent; if they gave a speech explaining the purpose (legislative history is
the evidence of the purpose)
3) Policy - idk why they did it, but what way is better?
 Are the consequences being helped/harmed by it?
 Consequence-focused
 Usually the part that really matters; always there and able to argue even if purpose and text are
already there

Muscarello v. US
o Muscarello was convicted of carrying a firearm in the glove compartment of his vehicle while involved
in a drug trafficking crime. Muscarello challenged the lower court’s interpretation of the law, arguing
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that the term “carries a firearm” applies only to a person who actually possesses a firearm on his person
and not to one who possesses a firearm in his vehicle.
Statute:
 "uses of carries a firearm… during… a drug trafficking crime" = deterrence
Issue was how broadly they should construe the word "carry.” The court used text and purpose to prove
their point.
 Text-based method - they use literature, the dictionary, and the bible to determine the word
"carry"
 If Carry and transport mean the same thing, then they would've used the same word.
However, because they don't, they're clearly not the same word
 The presumption against surplus - they wouldn't put a word in there if they didn’t mean it
 Purpose-based method - carry should be broad because of the purpose of the statute. A drug
crime is just as dangerous if the person has a gun on him or in his car
The majority uses the text-based method in the first, second, and third points:
 Carry and transport are two different words and they used them in 2 different places. They
wouldn’t use one if they didn’t mean it.
 Saying "uses or carries" - uses means in the act of so carries retains an independent meaning
 Carries means something broader because if you had a grenade, it is carried different than a gun
Law: When interpreting a statutory term, courts should assume the primary meaning of the phrase
governs unless the legislature indicates otherwise.
II. ELEMENTS OF CRIMES
1) The Criminal Act
A. Voluntary requirement
 Martin v. State:
o Martin was convicted of being publicly drunk on a highway. He was only placed on the highway after the
police brought him there.
o Issue: Does "appearance" imply voluntary appearance?
o Holding: yes. The court decided that there was an implied meaning of voluntary:
 "Any person who, while drunk, appears… " really means "any person who, while drunk
[voluntarily] appears…"
 Must voluntarily do all of the above: Voluntarily be drunk, Voluntarily be loud, and Voluntarily be
in public (which he is not)

Hypo: If someone is attacked by killer bees while drunk and runs into public and is loud - the act is committed
(voluntary act part is met) but the bees may go toward the mens rea (he was under duress)
o Time-framing - if you were told not to drive because you have narcolepsy and you drive anyway and kill
someone when asleep, is there an act? Yes, if the court counts back to when you decided to drive (what
they would go with). If the court only included the time you swerved, then you were asleep and it was not
your fault. (not likely)

Implies causation
o Link b/w the act and prohibited result/conduct (some are defined by prohibited results (killing someone),
some are pure conduct (driving drunk)
o State v. Utter
 Utter stabbed his son in the chest. Utter was in the armed services but was discharged in 1946 after 4
years of service and was awarded 60% disability pension. The word "act" is under debate here
 D claims that him stabbing his son was a conditioned response; a knee jerk is a reflex action from a
doctor hitting your knee. He claims that the act was not a voluntary act but a reflex.
 Two issues:
 Procedural issue: was it an error by the trial court to instruct the jury to disregard the
evidence on conditioned response? Yes
 **Substantive issue: was there a criminal act? Yes
 If this was an automatic response, he should have been able to present it to the jury. However, D did
not present enough evidence to prove his mind and was very drunk, so his conviction stands. Utter’s
act was a conditioned response, he lacked the consciousness required to commit a voluntary act, and
could not have had the requisite actus reus.
 Law: Substantial evidence on the defense of conditioned response tending to demonstrate whether
the defendant committed the requisite actus reus should be presented to the jury in a murder trial
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B. Omissions:
 "Criminal conduct consists of… an act or a failure to act that produces criminal consequences"
 General rule - in criminal law, you have no affirmative duty to act
 Omissions as criminal act
o When legal duty to act exists (only obligated when you have a preexisting duty to act)
 Ex: lifeguard to swimmer, prison guard to inmate, parent to child, police officer, babysitter
o Only criminal if it is…
 Status based (your job)
 Contract based (babysitter)
 Statute based (tax reporting)
 If you voluntarily assuming care (once you start, can't just walk away)
 When you created the problem (car accident)

Barber v. Superior Court
o 2 physicians charged with premeditated first-degree murder and conspiracy to commit murder
o Issue: Did they commit the act?
o Holding: No. the court decided that the physicians did not cause death. They were withholding treatment,
which is a failure to act, not an act.
o Logic of opinion:
 Removing tubes is an “omission” not an act
 Omissions are not criminal unless duty exists
 No duty to care for patients unlikely to recover
o Law: A physician is under no legal duty to continue futile life-sustaining support absent objection from a
spouse and the withdrawal of such life-sustaining support with the consent of a spouse does not support a
charge of murder.

The Florida security guard case:
o Florida statute about negligence - they have to determine if there was an act
o Neglect of a child means a caregiver's failure. So they have to determine if he is a caregiver
o Must determine if the principle of legality is upheld
2) The Criminal Mind
A. Overview
 Policy rationale - seen from deterrence or retribution perspectives
 What is culpability?
o Morally blameworthy; whether someone should be held liable for their actions
o Broader than one might think; not just did you mean to do it? Its more about foreseeability
o There are varying degrees of culpability
 Two different meanings:
o Broad - culpable or not. Did you commit the act with any kind of blameworthiness at all? Either yes or no.
o Narrow - do you have the required level of culpability?
 Statutes o Consists of elements
 A + B = Crime
 A + (B or C or D) = crime
o Each element must be established by prosecutor to prove guilt. Defense only has to disprove one
 Murder - causing death with purpose (ex: 100 culpability points)
 Involuntary Manslaughter - causing death with negligence (ex: 15 culpability points)

Regina v. Cunningham
o Case where D stole gas meter and it caused dangerous gas to seep into Mrs. Ward's house which was
connected to the cellar, he was in. D appealed saying the trial judge erred in defining malicious to be less
than it really means
o Issue: Did the judge misdirect the jury as to the meaning of the word "malicious"?
o Statute under argument: "Whosever shall unlawfully and maliciously…" but there was a disagreement
over the meaning of malicious:
 Lower court said:
 "Malicious" = general badness
 Appellate court said:
 "Malicious" = (1) intentional harm; or (2) foreseeable harm (i.e. recklessness)
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This whole case was about whether the result was foreseeable or not
Law: The term malice in a criminal statute does not mean general wickedness; it means either (1) an actual
intention to do the particular kind of harm that was in fact done or (2) reckless disregard of a foreseeable
risk that the harm would result
B. Model Penal Code:
History and purpose 
o American attorneys and judges decided they needed to get together and create/rationalize the criminal code
(equivalent to the restatement)
o Not law but very influential; 2/3rds of states have either taken their law and completely replaced it with it,
most have taken chunks from it (1/3 has not adopted any of it)
 Their mens rea section is the one most often adopted by states

MPC - Categories of Culpability
o Problem: Common law used vague confusing terms…
o Willfully
o Maliciously
o Unlawfully
o Intentionally
o Feloniously
o
And replaced it with the new Categories of Mens Rea…
1. Purposely
 Standard:
 "Conscious object" to act/cause result; The result is what you wanted to happen
 Example
 "Purposely burns property of another" - prosecutor must show that it was your
conscious object to burn it
Hardest
one to prove, reserved for the worst crimes

2. Knowingly
 Standard
 "Practically certain" of the result
 "Aware" of the conduct
 Example
 "Knowingly causing death"
 "Knowingly possessing narcotics"
3. Recklessly
 Aware of risk and you ignored it; wasn’t your object and you weren't practically certain
(consciously disregarding a risk)
 Two prongs:
1. Substantial and unjustifiable risk of result/conduct
 Ex: you are aware there are illegal substances in a car but you need to drive your
friend to a hospital because she is hurt (or doctor performing dangerous surgery)
2. Conscious disregard
 Example
 "Recklessly transport narcotics" - they tell you to drive their car and to not look in the
trunk or go around dogs. Then you probably have narcotics
 If you are drunk and speeding - is there a foreseeable risk? Yes. But there's no purpose
or knowledge.
4. Negligently
 Exact same as recklessness but its not that you disregarded the risk, but that a reasonable
person would not disregard it (objective instead of subjective)
 **The only one that doesn’t matter what is going on in your mind.
 Two prongs
1. Substantial and unjustifiable risk of result/conduct
2. Reasonable person would perceive risk
 Examples
 "Negligently causing death" - dad leaving kids in the car when he went to work. He
may have honestly forgot, but he is still guilty of a crime.
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
o
Examples:
 Bad check statute
 "Purposely passing a check that lacks sufficient funds"
 How do you prove purpose? If prosecutor can prove he saw his funds prior to giving
the check
 What would help the defendant? Deposited more money and it didn’t go through yet
 "recklessly passing a check that lacks funds"
 Giving blank check to someone and what they write can’t be paid by you because you
thought they would write less
o
Willful Blindness
 Only applies to:
 Knowledge and
 Attendant circumstances
 Statutory elements
 Result
 Conduct
 "Attendant circumstances"
 Fact, either true or not true
 Ex: "causing death"… "of a federal officer"
 The federal officer part is an extra fact
 Ex: "breaking and entering"… "at night"
 The night part is an extra fact
 MPC approach
 Willful blindness = "knowledge"
 Aware of "high probability" of facts existence
 Ex: "knowingly transporting class IV narcotics"


On movie set, you pick up gun and think it is a prop but you shoot someone. The court
may believe you thought that, but you aren't completely off the hook
Nations v. State
 The owner of the disco place allowed a girl under 17 to work there. She claims she did not
know.
 Rule: Knowingly (1) encourages, aids or causes (2) a child less than 17 years (3) to engage in
conduct…
 Issue: Did state prove the defendant knowingly endangered the welfare of the girl? Does
knowingly = willful blindness under Missouri law?
 Holding: no. no.
 Reasoning: Missouri law did not adopt the MPC's approach to willful blindness. They took
the MPC's approach to other topics, but purposely did not include that section. The state
proved recklessness not knowledge
MPC - Statutory interpretations
o State v. Miles
 Guy caught with box of drugs, and claims he didn’t know what was in it, just that it was probably
drugs
 Rule: "knowingly (1) in actual or constructive possession of… (2) four grams of any morphine,
opium, salt, [etc.]"
 Issue: How far does the mens rea term of knowingly go? Does it extend throughout the statute or
just the first part?
 Holding: no, just applies to the first section
 Reasoning: no one would get convicted of the crime if they required a defendant to know the
exact amount of a substance, and since that’s the case, they wouldn’t have to know the exact type
either, as the word knowingly would have to apply to both if it were to apply to the second.
 Subsection C was applied by supreme court and they used their explanation for subsection E
o
Default rules:
1. Mens rea term modifies all elements
 Battery
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

Knowingly using force against another without consent
becomes
 Battery is (1) [knowingly] using force (2) [knowingly] against another
(3) [knowingly]without consent
Battery is knowingly using force against another recklessly without consent
 Battery is (1) [knowingly] using force (2) [knowingly] against another
(3) [recklessly] without consent
2.
Recklessness is implied when statute is silent
 Battery
becomes
 Battery is touching another person without consent
 Battery is [recklessly] (1) touching (2) another person (3) without consent
 It’s the lowest of the conscious ones, so its only fair to imply this one over purpose or
knowingly
3.
Higher mens rea satisfied lower
 When a statute establishes a mens rea, if you act worse, you have satisfied the statute
 Ex: Purpose is 100 culpability points and is lower as you go down the list. If
you only need 10 culpability points and the person is found guilt of the 100,
then you're good
 Examples:
 Involuntary manslaughter
 "negligently causing death" --> if you can prove purpose, then you have
met the statute
 Murder
 "purposely causing death" --> if you can only prove negligence, then it
is not satisfied
 Requirement is satisfied with higher mens rea but not lower
 Examples:
 N --> N,R,K,P
 R --> R,K,P
 K --> K or P
 P --> P only
C. Common law mens rea
 Transferred intent
o Different victim, same harm – transfers
o Different social harm - does not transfer
o People v. Conley
 Statute: "a person who, in committing a battery, intentionally or knowingly causes a… permanent
disability…"
 For intent, must prove the harm was his purpose or he was reasonably certain the harm would
occur. They agreed with the defendant that the statute does state you must prove the higher mens
rea (practically certain or conscious object) but they also state that the state met its burden to
prove he did have the mental state
 Law: Criminal intent may be inferred from the circumstances surrounding a crime.
o "knowingly causing death"; What if you throw a rock at a window but hit a person and kill them? Intent
does not transfer because you are not practically certain you are going to kill someone when you picked
up the rock.
 "negligently causing death" - for the rock example, if you hit someone, still not a risk if the place
was abandoned. If the place is occupied, you probably would be found guilty of negligence
 General and Specific Intent
o Definitions
 Specific intent - requires additional mens rea distinct form mens rea required for actus reus
 Ex: larceny:
 "taking property of another with the intent to deprive permanently"
 Don’t have the specific intent if you didn’t know or you didn’t intent to keep it
permanently
 Ex: Assault with intent
 "battering another with intent to kill
 Ex: Possession with intent
 "possession narcotics with intent to distribute"
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
o
General intent - only mens reus required is for the actus reus (any kind of culpability)
 Ex: battery
 “Offensively contacting another person without consent"
 Old common law general intent was too vague, so the MPC decided to
create 4 categories
Ex: battery:
 General intent statute = "offensively contacting another person without consent" - Requires any
sort of culpability
 Specific intent statute = "offensively contacting another person without consent with intent to
kill" - requires a specific culpability. (had intent for actus reus but not for that extra specific
intent)
3) Strict Liability
Act + intent = crime; no longer need the intent

Presumption against SL

o "it shall be unlawful to damage property by fire"
o "it shall be unlawful to [recklessly/general intent] damage property by fire"
General presumption - mens rea required

Morrissette v. United States proved this. It showed that when a person commits a crime but not knowingly, then

the statute is not met
o Acts which are bad in themselves, including larceny, require the element of mens rea and any similar
strict liability statute will not be construed as eliminating the mens rea element.
 Policy rationale
o If we're going to punish you, it shouldn’t be for an accident
 Staples v. United States
o Did he have to know the gun shot automatically/was a firearm? Yes. Mens rea was required to meet the
statute, even though the statute didn’t specify it. The court ruled that congress did not intend to omit it.
o The Court considered:
1. Danger of the regulated item
 Regulations of dangerous devices are strict liability crimes
 Guns are not dangerous devices (in constitution, in every household)
2. Severity of penalty
 Crimes with large penalties are not strict liability crimes
 This statute has a large penalty
4) Mistake
 Mistake is a subset of the other categories (borrowing, emergency, prank), so its just one more way to negate mens rea;
can't be held liable
o Mistake is usually a defense against specific intent
o Louisiana doesn’t allow any mistake defenses (of fact, of law, or MPC)
 Two approaches:
1. Common Law (breaks it up into 2 categories of mistakes)
 Mistakes of fact - I was confused by the facts (thought an item was yours)
 Two categories =
 Subjective: Good faith/honest (did I really think that?)
 Objective: Was it reasonable to think it?
 Applying the categories to different intent crimes:
 Specific intent crime: only subjective
 Mistake must only be honest/subjective
 General Intent crime: objective and subjective
 Mistake must be both honest and reasonable
Ex: "assault with intent to kill a person" -- only have to show honesty so you're
good; "assaulting a person" -- have to show both honesty and reasonableness
 Ex: People v. Navarro:
 This is a mistake of fact case - he stole wooden beams and thought they were abandoned
 This is a specific intent crime; he was charged with feloniously taking personal property of
another with the intent to steal the property. Therefore, he must only show it was an honest
mistake, but the judge wrongly instructed the jury that he needed to show honesty and
reasonableness
 Honest? - should have used this
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

2.
Honest + reasonable? Used this
Mistakes of law - I was confused of the content of the law (didn’t know the speed)
 Presumption = "ignorance of the law is no defense"
 Policy rationale = doesn’t work usually because of the incentives
 Would make the law unclear and subjective
 It did work in one case though:
 Cheek v. United States
 The word "willfully" was up for debate
 Statute required knowledge of the law, therefore, it requires a higher mental state. The
defendant honestly did not know the law for this statute, therefore he cannot be found
guilty of it -- only guilty if don’t pay taxes and know you were supposed to
 Black letter law: this is an exception: mistake of law will work if the statute requires
knowledge of the law
MPC
 Mistake must negate mens rea; it does not matter if its by fact or law
III. HOMICIDE
1) Overview of Homicide
 Definition: Killing another human being with a certain mens rea
o Intentional = murder and voluntary MS
o Unintentional = involuntary MS and Felony murder
Actus
reus = "killing" or "causing death"

o Causation is an issue in many cases
Intentional:
2) Murder
 Common Law Approach
o Definition: Killing with "malice"
o Establishing "murder":
 Malice = the mens rea required for murder
 It is a group of mens reas; Only need to cause death with one
 Need to cause death (killing) with one of the 4 categories from below:
1. Intent to kill
 The purpose or knowledge)
2. Intent to cause serious bodily harm
3. Gross recklessness ("depraved heart")
 Driving into a crowd of people; even if didn’t intend to kill someone, still intending to
drive into them
4. Felony murder
 If you are committing a felony and it leads to a murder accidently, you are guilty of
murder
 This is the different one of the 4, it takes a strict liability turn
 Very controversial, some states have rejected it and some have added exceptions
o Degrees of Murder
 1st or 2nd degree - there is a spectrum of badness
 Malice has nothing to do with whether it's one or the other
 State v. Guthrie:
 There was intent to kill, and he was charged with 1st degree murder. But the court lumped
premeditation in with intent instead of making them different. Usually 1st degree requires
premeditation and 2nd does not.
 They followed a previous case to prove their point, but the appeals court made the distinction
between intent to kill and premeditation
 The difference:
 Second degree =
o Default
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

First degree =
o How can you make 2nd degree into 1st degree?
 Premeditation - Most states agree that this element bumps it up to 1st degree
- Deliberation requires more reflection (mindful) whereas premeditation requires
the mere thought of doing it before doing it (time)
- How long is enough? What evidence proves it?
 Statutory categories
- E.g. killing a child, police officer
 Felony murder
- Usually 1st degree
- Some states make it automatically 1st degree when one intends to kill while they
are intending to commit another felony
o Midgett v. State
 Clearly a murder, but was there premeditation behind the act?
 Jury found premeditation but the court found that the evidence was not sufficient to
conclude this
o State v. Forrest
 Premeditation was clear in this case (brought gun to hospital), yet it didn’t seem as
terrible as the father in Midgett even though premeditation usually makes it worse
- Forrest claims insufficient evidence -- With the evidence given, could the jury
have reasonably found their conclusion? Clearly. The real reason they brought
the challenge was for mercy
The
court
looked at circumstances that may be considered when determining whether

premeditated:
Want of provocation
Conduct and statements before and after
Threats and declarations before and after
Ill-will or previous difficulty between the parties
The dealing of lethal blows
Evidence the killing was done in a brutal manner
MPC Approach:
o Three Categories of homicide (the mens rea terms are distribute among them)
1. Murder
 Mens rea:
 Purposely,
 Knowingly, or
 Extreme recklessness - closer to depraved heart than normal recklessness
 No degrees of murder; leaves it up to the court to determine the sentencing
2. Manslaughter
 Recklessness
Negligent homicide
 Negligence
o MPC has preference towards standards over rules
 Rules vs. Standards:
 Similarity: Both are just as binding, just different shapes of law
 Rule = when you define the illegal conduct ex-ante (ahead of time)
 Ex: Speed limits or President must be 35
 Advantage = Much clearer and easier to enforce
 Disadvantage = can sometimes be unfair
 Standard = defining the illegal conduct ex-post (after the fact)
 Ex: "reasonable speed" during heavy traffic or President has to be of reasonable age
 Advantage = allows for extreme circumstances (more fair)
 Disadvantage = gives lots of discretion to the court, implementation is more difficult
The Arrest of Howard Marks movie:
 Although he had intent to kill, he was a little less culpable
 If under common law, what should he be charged with?
o If voluntary manslaughter, would argue the heat of passion overtook him
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o
If murder, would argue he had time to think so it was no longer spur of the moment
4) Manslaughter - voluntary
 Common law approach:
o Definition: Semi-excused murder
o Categories:
Provocation / "Heat of passion"
 You were provoked and you lost control; You are less culpable when you are in emotional state
 Has many requirements because we are basically giving a lesser punishment to a murderer.
Requirements of provocation:
(1) Actually in "heat of passion"
 Basically you have to be telling the truth that you were in that state
(2) Legally adequate provocation
 Objectively, reason has to be good enough
(3) No opportunity to "cool off"
 Also goes with (1) if he takes time away from whatever caused the heat of passion
 Exceptions:
 "rekindling" - you see whoever adequately provoked you and they bring up the
issue again
 "long smoldering" reaction - range can be the product of long-term inaction
(simmering - often victims of abuse)
Chart in ppt helpful

Girouard v. State
 Clearly intent to kill, so charged with 2nd degree. The defendant wants to reduce it to
voluntary manslaughter though because she had said provoking words
 Issue: What is an adequate provocation? (2) of rule of provocation
 Defining "adequate"
 Rule = categories approach (state takes this side)
 "Words alone cannot be adequate provocation" because not one of the categories
 Categories: Discovering spouse cheating on you, seeing family member
hurt, mutual combat, assault and battery, illegal arrest
 Standard = "reasonable person" approach (defendant takes this side)
o Consider all the circumstances of the case
o Used by LA for manslaughter ("sufficient to deprive an average person")
Imperfect self-defense

MPC Approach - (2) is equivalent to voluntary manslaughter
1) "Recklessly" causes death
-don't worry about yet
2) Murder committed with an "extreme emotional disturbance" with "reasonable explanation"
 Doesn’t say one must be provoked
 Subjective and objective parts
 People v. Cassassa
 Clearly murder. Default is 2nd degree murder but need to determine if there is something to mitigate
it down
 Issue: did Do establish affirmative defense of "extreme emotional disturbance"?
 EED Standard - broaden the ways in which one can claim the standard but makes it to that the
objectiveness still remains
 Most states follow the heat of passion approach, not the MPC
Voluntary MS and Involuntary MS is never mixed up
 Murder can be close to Voluntary MS
11

Involuntary MS can be close to Murder (when dealing with depraved heart))
Unintentional:
Manslaughter II - involuntary
 Common law
o Accidental death from unreasonable recklessness
o Mens rea
Recklessness
 Regular recklessness, risk of death is ignored
Gross/"criminal" negligence
 More than civil negligence
 Ex: Leaving kids in car, shooting gun you thought was toy
o People v. Knoller
 Case where huge dog owned by defendant kills a neighbor
 Was there an actus reus?
 No. But the defendant was the proximate cause -- the judge lists all the acts leading to the homicide
 If you cause death with implied malice, you may be charged with murder depending on: Is it reckless
(involuntary MS) or depraved heart reckless (2nd degree Murder)?
 How do you distinguish between ordinary recklessness and depraved heart recklessness? -- It is the
degree of probability it will occur
o
MPC
Involuntary MS does not exist. Instead, they broke it up:
 Recklessness
 MS (left kid in car and just left window cracked)
 Negligence
 Negligent homicide (left kid in car and just forgot)
o Manslaughter ((1) is involuntary, (2) is voluntary from earlier)
Recklessly causes death
Murder committed with an "extreme emotional disturbance" with "reasonable explanation" (brought up
earlier)
o Negligent homicide
 Mens rea
 Negligence = "gross deviation" from one normal person would do
 State v. Williams
 Case where parents didn’t get their son medical attention when he had a tooth ache that led to
malnutrition and pneumonia
 Issue: was there sufficient evidence of evidence?
 Perspective: objective view but does involve some subjectivity. Is it a reasonable person? Or
reasonable person at his education level? Or reasonable person with same circumstances?
Felony Murder
 Overview
o Definition: Intent to commit the felony becomes the intent to commit murder (Constructive murder) = felony +
murder
o History and evolution
 Goes way back. There used to be only 6 felonies, so one was guilty of felony murder even if attempted one
of the big 6
 Traditionally was 1st degree, but many states have changed it to 2nd degree. Depends on the state
 Many courts are hostile to it. Therefore, courts have added limitations to it
 Common Law Approach:
o Intent for underlying felony creates "malice"
 The felony creates the malice, and that malice is transferred over to the killing
12
o


Felony murder almost becomes a strict liability -- don't need any culpability or blameworthiness for the killing
(the charge of 1st degree murder is possible)
o People v. Fuller:
 This case was about a guy who burglarized vehicles and then was involved in a high speed chase. The chase
led to a person being killed
 In this case, the burglary was the felony. And burglary was in the statute as being an inherently
dangerous one, so it worked.
 Issue: Can you be charged with 1st degree murder if you committed a felony and a death resulted?
 Holding: Yes. The state had a statute that stated burglary as one of the 6 felonies where felony murder
applied. The main issue with this case is that the murder didn’t occur during the burglary. Other than felony
murder, he could have been charged with depraved heart (gross negligence murder) but felony murder is
much easier to prove
The Policy Rationale =
o **Deterrence - deter those from committing felonies (looks forward)
 Creates incentives to commit crimes safely
o Retribution - really no justification for felony murder under retribution standards; a person shouldn’t be held as
liable for the killing if they weren't blameworthy because they didn't deserve it (looking back @ you)
Limitations: while felony + death = felony murder, courts have attempted to limit the types of felonies that can even be
considered for felony murder
o "Inherently dangerous felony"
 Only dangerous felonies count
 Approaches:
 Categories (rule)
 List of what is and what is not
 Downside = when a parent that doesn’t have custody picks up kid and kid dies in car wreck,
considered felony murder
 People v. Fuller used this approach. Burglary was listed as an inherently dangerous felony
 Facts-of-the-case (standard)
 Ex-post standard
 People v. Howard
 The felony here was evading a police officer with a wanton disregard
 The court used a categorical approach, but evading a police officer wasn't brought before the court
yet, so it wasn't in either category yet (inherently dangerous or not inherently dangerous)
 Uses textural approach to say its not inherently dangerous - they look at the felony in the abstract and
say that because it is theoretically plausible that someone could safely violate this law, it is not
inherently dangerous
 They say that they can conceive scenarios where someone can violate the statute in a safe way
(ex: someone in police chase who is going 5 mph)


"Independent felony"
Definition: The underlying felony has to be independent of the homicide (can't be the homicide or an
integral part of the homicide)
Why was this limitation made?
Any assault/felony could be transferred into murder if this limitation didn’t exist -- this would
ignore culpability and legislature, consequently getting rid of the manslaughter category
Lesser crimes merge into homicide
 Assault leads to attempted murder leading to voluntary MS or 2nd degree murder. Therefore,
assault cannot be the felony used for felony murder
Intentional crimes could be treated better than unintentional crimes

People v. Smith
 Case where mother aggressively disciplined child and the child died. She was charged with felony
child abuse and felony murder because of the assault involved
 Without felony murder, probably involuntary MS (maybe depraved heart murder)
 Issue: is felony child abuse "independent of" the homicide?
 No.
 Very good IREAC form. Should be able to just read topic sentence of each paragraph, you can
understand the point

Hypo: hazing causing death. Assuming there is an actus reus, can you get them for felony murder?
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
"In furtherance of" felony”
2 different meanings:
"During the commission" of the felony
 Time/geography limits
 This one has issues with the fleeing of a felony. Fleeing affects both the time and
geography aspect
Causation
 Felonies conduct must "cause" death
Difficult to determine the exact cause sometimes
 2 approaches:
Agency (rule) - follow the rule
 State v. Sophophone
 Issue: Is killing by police officer "caused" by Do for purposes of felony
murder doctrine?
 The rule here says that a co-felon cannot be responsible if a nonaccomplice kills the other felon (co-felon must have committed a killing)
 Used agency approach. The court held that the death has to be done by a
felon to be part of felony murder (death must happen from co-felon, not
bystander or police officer)
Reasoning
behind the rule: F1 and F2 are committing felony. F1 shoots V. F2 is

still liable. But if C (cop) kills F1, F2 is not liable. C was committing a morally
justified killing. F2 and C were not co-felons


Proximate cause (standard) - depends on situation
If C tries to shoot felon but hits bystander, under agency, felon is not liable. For
proximate cause, may be liable
MPC approach:
o Rebuttable presumption of extreme recklessness for certain crimes.
Presumes extreme recklessness if the death happens when doing certain felonies. The "presumption" allows
the defendant to rebuttal the recklessness of the crime.
This presumption goes against the usual retribution focused MPC idea. They don’t like felony murder, so
they require recklessness to be liable
IV. INCHOATE OFFENSES
Types:




Attempt -- Punish actions before the harm occurs
Conspiracy -- punish the agreement to commit a crime
Solicitation -- punish for asking someone to commit a crime
Stalking
Actus reus is problematic for attempt, while in conspiracy the mens rea is problematic
1) Attempt
(a) Overview
o It is a distinct crime. It has its own act and intent
o Merger - if the attempt merges with the crime of murder, then you only get charged with murder
o Categories:
 Completed =defendant has taken the last act but was still unsuccessful
- Ex: shot at someone but missed
 Incomplete = caught on the way to commit an act
- Ex: Building bomb but caught before it is finished
o Punishment - should attempted murder be punished the same or less than murder?
 Majority rule - attempt is punished less (even in states that have adopted the MPC)
 Policy rationale for this = Uncertainty - not 100% sure that you are culpable/that you would go
through with it
- Deterrence:
 Creates incentives to abandon a crime before it is completed
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-
Retribution:
 Harm retribution people would say that you should only be punished for harm you
commit
 Intent retribution people would say amount of punishment should depend on what
was in your mind at the time (MPC adopts this - which is why they treat attempt and
murder the same)
(b) Mens Rea
o Common law (majority rule)
 Attempt requires specific intent (sometimes harder to prove than murder itself)
 Attempted [x] requires specific intent to do [x]
o MPC
 Same - just assume purpose
 Attempted [x] requires purpose to commit [x]
o People v. Gentry
 Case where Gentry pour gasoline on girlfriend and she claims she was only ingoted when she went
near the stove. He was convicted of attempt murder and appealed based on jury instruction
 They said that the jury could find him guilty of attempted murder if they found: Intent to kill, Intent
to do great bodily harm, knowledge if death, or knowledge of strong possibility of death/great bodily
harm. But these were murder mens rea categories., attempted murder mens rea is only specific intent
(first one)
(c) Actus Reus
o Mere preparation is not enough (ex: buying a gun)
 For incomplete attempts, there is no objective place to draw the line -- reason actus reus is harder to
prove than mens rea for attempt
 If using a start and finish line view, there are 2 views:
- Finish line approach = How close to the end are you? (traditional common law approach)
- Start line approach = How far from the start line are you? (MPC approach)
o Approaches:
 Common law approach:
- Proximity = E.g., "last act"; "dangerous proximity"
 Problems with "last act" = only completed attempts would be punished
 Therefore, dangerous proximity is about how close you are to finishing the act
 The traditional approach
 MPC approach
- "substantial step" which is conduct that is "strongly corroborative of… criminal purpose"
 Majority have adopted this approach
- "strongly corroborative of … criminal purpose"
Hypo #1 on page 770. under CL, could be arrested from 6-9, under MPC, could be arrested 2-6

Policy behind the approaches:
- Proximity approach =
 Pro: you are more certain they are guilty of attempt
 Con = you put the victim at a higher risk
Substantial
step approach =
 Pro = safer for the victim
 Con = don't know for sure what they were going to do

State v. Reeves
- Incomplete attempt where they bring rat poison to put in teacher's coffee but told other
student and teacher found out. The court found them guilty of attempted murder.
 On appeal, the defendant cites Dupuy (abortion case) which used the proximity
approach. The pharmacist was not guilty of it because he was not close enough to the
end (was not complete). They claim they shouldn’t be guilty because it was not
complete, same as Dupuy
 The state says the legislature enacted the MPC which refers to substantial step. They
quote the MPC's reasoning with the examples attached to it
15


The defendant comes back and says true but the examples were not adopted with it.
The court agrees, saying the examples were not adopted, but the facts in the case
show that it was substantial step anyway. So they abandoned Dupuy in order to make
them safer. Don’t want to wait until on brink of the crime
(d) Defenses
o Abandonment/Renunciation
 Abandoned criminal act before complete
 CL/MPC approach:
- Abandon effort
- Must be a "Complete and voluntary" renunciation -- must be abandoned for the right reasons
(too hard, or maybe I'll get caught"
- This defense is available to give incentives to stop
 Commonwealth v. McCloskey
- Attempted prison break. He was still in the yard when it was abandoned. In a common law
state
- The court held that he was still only contemplating the prison break and not yet attempting
the act, therefore his act was mere preparation
- Concurrence makes more sense. They say: that’s not the right way to think about it. It was
an attempt that was abandoned. The whole aspect before the act is not mere preparation but
part of the act itself that was subsequently abandoned
 Had the court adopted this reasoning, the prosecution would have to show that it was
not voluntary. He left his bag, meaning he was probably scared and felt he would get
caught so he ran away from the scene
 For defense, would claim that he couldn’t hear the alarm so he wasn't scared. He just
decided not to
- Under MPC would be an attempt (because he took a substantial step)
o Impossibility
 Doesn’t work -- cant be guilty for an attempt because it was impossible to do
 Traditional rule
- Factual impossibility = no defense
 Has goal to do something illegal but factually impossible
 Ex: went to shoot but it was really a scarecrow not a person
- Legal impossibility = valid defense
 Goal is not illegal
 Ex: Go to shoot deer and do but it was the first day of deer season and did not
know)
- Ex: Case where 40-year old sent explicit photos to what he thought was a 14-year-old girl.
It was really an FBI agent. He claims it was impossible because he was sending it to an
older person.
 Factually impossible as he meant to do something illegal but it was factually not
possible, as he was not sending it to the young girl not
 Legally impossible as it is not illegal to send it to an FBI agent
 Modern trend
- Impossibility is not a defense to attempt (under both MPC and CL)
- Any type of mistake does not matter. Still punished because you thought you were doing
the crime and attempted it anyway
2) Conspiracy
(a) Overview:
o Definition: agreement among two or more people to commit a crime
 It is a separate crime (can be guilty of conspiracy to commit murder and murder)
 Punishment varies by jurisdiction, but most states punish less than the actual crime
- MPC recommends that it be punished the same as the actual crime
o Policy rationale:
 Group crime is more dangerous -- allows for higher degree of harm and more efficiency (division
of labor)
 Benefits for prosecutors -- they love it because…
- Broader time span -- it goes all the way back to preparation
16
-
o
o
Co-conspirator liability -- very controversial (deals with liability for a 2nd crime that occurs
during an agreed-to crime)
 Procedural advantages
- Consolidated trial
Critique
 Mens rea - did you really mean it? Or was it kind of in the middle?
 Actus rea -- very early in the process. No real act yet other than agreement
Elements:
(1) Agreement
- Can be more than just an explicit agreement. Can be inferred
(2) Specific intent to commit crime
- Joining isn't enough. Must know what you are joining. All members need this
(3) "Overt Act"
- Tangible step toward completion. Different from an actus reus
- Only one person has to commit the overt act
- It is required because it makes the agreement more plausible
- Ex: All agree and have specific intent to commit robbery, then one person goes to disable
the security cameras, then all now liable for conspiracy even if they didn’t know he went
to do that
(a) –
(b) Mens Rea
o Specific intent/purpose crime
 Conspiracy to commit [x] requires specific intent to commit [x]
o People v. Swain
 Drive-by shooting. Both defendants in the car are convicted of conspiracy to commit murder
 Implied malice was used in the case to mean depraved heart
 Jury instruction:
Intentional, unpremeditated
Extreme recklessness (depraved heart/implied malice)
Felony murder
 But the 2nd was incorrect because you cannot specifically intend extreme recklessness. Cannot agree
to be extreme reckless
o Knowledge = not enough to prove conspiracy -- need specific intent or purpose
 When does knowledge cross over into intent?
- People v. Lauria
 Lauria ran a telephone service that was used by prostitutes and he knew they
used it. But need more than just knowledge, need purpose
 Showing purpose:
1. Stake in the venture
2. No legitimate use
3. Disproportionate volume of business
4. Gravity of crime
Some felonies may show purpose whereas misdemeanor may not. The rationale is
similar to strict liability. You have a duty to be more careful
(c) Actus Reus
o "Agreement" -- the mere act of agreeing has a mental meeting of the minds (act of concerted action)
o Can be inferred from conduct -- disabling cameras while the other robbed the bank. You are guilty of
conspiracy
o Commonwealth v. Azim
 Azim drove the car that his co-defendants rode in on their way to and after a robbery. He remained
in the car while they robbed the victim
 Court rejected the defense that he didn’t know the plan, so he didn’t agree, because he drove them to
the location and waited for them to complete the act.
o Commonwealth v. Cook
 Victim met the 2 guys in a common socializing place. They were walking to a store when she fell
and Maurice raped her. Cook was found guilty of conspiracy
 Issue - is there sufficient evidence of a conspiracy agreement before the crime?
- The court held no. they held that the facts proved no agreement
 Doctrinal point = Conspiracy requires more than underlying offense
17
(d) Unilateral vs. Bilateral
o People v. Foster
 Where defendant approached another person at a bar and asked if he would want to make some
money by stealing from an elderly man, but the other guy never had the intent to go through with it
 Issue: Does the statute allow unilateral conspiracy?
- Statutory interpretation case
- Raises the question of whether a conspiracy can be unilateral
 The state brings up how the statute had been amended:
- The old statute = "if any two persons"
- The new statute = "if a person"
 But the court holds that if the drafters meant that, they would have put it in the comments. Also, the
state had a solicitation statute which covers most unilateral conspiracy. Usually, this would have
been unilateral conspiracy. This case only found bilateral because they claim it was too vague
 This is an outlier case
o Common law is usually unilateral (2:47 listen back)
(e) Co-Conspirator Liability
o This is a problem of the second crime
o When are you liable for the additional crimes of co-conspirators?
 Common law rule:
- Anything foreseeable within the scope of conspiracy
- "Natural and probable consequence" rule
 MPC rule:
- Eliminates co-conspirator liability
 They only want to punish what is in one's mind
- Must be an accomplice to the second crime (not just the first)
o Limits:
 Outside of the scope of the conspiracy (not-foreseeable)
 Different conspiracy
- Ex: some are bribing officials and some are dealing drugs, the 2 conspiracies are not
connected. If during a drug deal, someone is killed, the ones bribing the officials are not
accomplices
- Wheel conspiracy (x in middle with D1, D2, D3… connected to him)
- Chain conspiracy (D1 - D2 - D3 - D4)
 Prosecution will try to claim that D1 doesn’t have to know who D4 is but they
know that D4 exists
(f) Defenses of conspiracy
o Abandonment
 Must be complete/voluntary
 Effects of the abandonment:
- CL -- ends co-conspirator liability for future crimes
 Ex: like a credit card. You charged the crime on the card, if you cancelled the
card, you are still responsible for paying for the money on it but you are not
responsible for paying for other crimes after cancelling
 No longer liable for any of the different crimes they commit when attempting the
original crime
- MPC - eliminates underlying conspiracy charge if you "thwart success"
 Ex: if you go to cops and help them before the crime is committed, you are not
guilty
V. LIABILITY FOR CONDUCT OF ANOTHER
1) Accomplice Liability
(a) Overview:
o Definition: you are held responsible for the criminal conduct of another
o Difference between accomplice and conspirator:
 Accomplice = Guilty because you helped
18
o
o
o
o
 Conspirator = Guilty because you agreed
Not an independent crime. – You are charged with murder via the law of accomplice liability. It is
derivative
History:
 Original classifications
- Principal 1st degree - person committing crime
- Principal 2nd degree - person present at scene
- Accessory before the fact - more like conspirator (agreed to it beforehand)
- Accessory after the fact - helping after crime
 Modern trend
- Principals and accessory before the fact = accessory
- Accessory after the fact = not murder, but maybe obstruction of justice
Elements:
 Mens rea = Specific intent/purpose to commit crime
 Actus reus = Assisting
State v. Hoselton
 He was a lookout for his friends and he saw them stealing but did not know they were going to. So
he went back to the car and waited and did not help
 Actus reus? Alleged assistance = he was a lookout
 Mens rea = helped with the intent to commit larceny based on his admission that he was a lookout.
But he claims they were breaking in to fish. He didn’t know they were stealing
 Holding: Not enough to break into the boat. Need to have the specific intent to break into the boat
to commit larceny.

Change of facts: if he were to honk the car horn when cops arrived. Still not liable for larceny
because he could still claim he knew they were breaking in but not stealing
(b) Mens rea
o Specific intent
 Accomplice liability for [x] requires specific intent\purpose to commit [x]
 Why such a high mens rea? Need to be more certain that you were guilty
o Knowledge?
 Not enough
(c) Scope of liability (additional crimes)
o Separate crime problem -- you committed crime 1 and then your friend committed crime 2
o Traditional CL rule
 Accomplice responsible for "natural and probable" consequences (foreseeable)
- Should the defendant have foreseen the additional crime?
 You are liable for any 2nd crime that is natural and probable. This is a more negligent crime. You
were negligent as to the 2nd crime
- State v. Linscott
 Where two guys planned on robbing a drug dealer. One shot the drug dealer even
though it was not the plan
 The prosecution looked at the foreseeability of the murder from the robbery -- they
brought a loaded gun to rob him.
 This case questioned whether the test was unconstitutional, because he did not have
the intent of murder, only the intent of robbery. He claimed it was so unfair that it
violated his right to due process. The court held it did not
 The doctrine makes sense deterrence-wise, not retribution-wise
o MPC rule
 Rejects "natural and probable" doctrine
 Requires mens rea of the underlying crime for the secondary crime (only a handful of states follow
this)
- Basically, you have the mens rea, awhile you don’t commit the crime yourself, you being
an accomplice is the actus reus
 Linscott (under MPC approach)
- Defendant is an accomplice to robbery
19
-

Defendant must have mens rea of additional crime
 Murder = purpose, knowledge, or extreme recklessness
- Defendant was/was not extremely reckless
 The issue here would be whether it was extreme recklessness -- was there a high
probability of death?
Hypo: you and friend go to beat up a friend. Then they walk away, and friend runs back and stabs
him but doesn’t die. You are in for assault. Are you in for attempted murder? Person committing
attempted murder requires specific intent.
- CL - since you are an accomplice, it only requires foreseeability (negligence)
- MPC - need mens rea of the second crime, which is purpose. So you probably would not
(d) Actus reus
o Overview
 "Assistance"
 Construed broadly
o Key concepts
 Meer presence is insufficient (silently observing is not enough unless legally obliged to do so)
 Words can be sufficient if they have the right intent
 Awareness - the person doing it doesn’t have to be aware of your help
 Even if you don’t actually help/contribute, if you try to help, you are still liable
(e)
Miscellaneous doctrines
o Direct vs. accomplice liability (derivative aspect)
Bailey = "innocent instrumentality"
Lopez = justification vs. excuse
 Bailey v. Commonwealth
- Case where 2 guys get into a fight over the radio. One tells the other, who is very drunk
and legally blind, to go on his porch with his gun. He does, but the other guy calls the
cops. The cops shoot the drunk, blind guy after he first tried shooting them, thinking they
were his friend who was threatening him.
- He couldn't be an accomplice because the police were justified. Cannot be an accomplice
if there is no bad act since it is a derivative crime. So they needed to get him as a principal
in the first degree (person who committed the crime)
 They were able to do this by applying the innocent agent doctrine: the one who
effects a crime through an innocent or unwitting agent is a principal in the first
degree
- Law: cannot be an accomplice if there is no bad act (if crime was justified). Can be held
liable for a crime even if you did not directly commit it, because you effected the crime
through an innocent or unwitting agent

o
U.S. v. Lopez
- Guy breaks his girlfriend out of jail with a helicopter because she claims she was being
threatened by the prison guards.
- The court had to determine if it was one of necessity or duress:
 Crime of necessity is a justified crime; it is not wrongful
 The thing you did was correct
 Crime under duress is excused
 Not about act, but your mind. The act you committed was bad but it
was okay because you only did so for a specific reason
 The boyfriend could not be an accomplice if the crime was out of necessity
because there was no original bad act. If it had been duress, the act would still be
bad. She could be excused but he could not be. A bad act still exists
Relationship with principal
 Liability can vary by defendant. They are no longer linked, have their own mens rea
 Cl accomplice cannot be charged with higher crime than principal (has been abandoned though in
my states… now accomplices can be charged with a higher crime)
- This is the case because if one person helped the other with a crime, but the person
committing the crime was too young or was mentally handicapped, the accomplice can be
charged worse
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

o
Ex: If one person constantly whispered in Othello's ears lies about his wife, and Othello goes and
kills his wife, can the guy whispering be charged with murder if Othello was charged with
voluntary manslaughter (heat of passion)?
In the Michelle carter case, can she be charged with causing death? She probably would have to be
a principal in the first degree
Limits
 Victims can't be an accomplice (ex: buying alcohol for minors. Minors are not accomplices because
they are the ones the statute is trying to protect)
- In re Megan R
 14 year old girl and her boyfriend broke into his ex's home to have sex. She was
charged with breaking and entering to commit the felony
 She cant be convicted though because they tried to charge her with breaking and
entering with intent to commit felony, but she was the victim of the felony
- Abandonment doctrine
 Not generally recognized in CL although some states have added it (those states
that have adopted it require you to do the similar steps as in below)
 MPC Approach - you can but it is difficult. Have to voluntarily abandon AND:
successfully stop it or timely tell the police (basically the same as the coconspirator abandonment)
VI. DEFENSES
1) Intro to Defenses
 Definition: argument that reduces or defeats a conviction
 Categories:
o Failure of proof defenses -- state has the initial burden (you cannot prove the act or you cannot prove the
mind)
o Affirmative defenses -- defendant has next the burden
 Justification
 Conduct itself is not wrong; it was correct
 Look at the act
 Examples: self-defense, defense of others, necessity, actions by law enforcement
 Excuse
 Conduct is still wrong
 Individual defendant is not morally responsible (do not excuse what you did but do
excuse you)
 Look at the individual
 Examples: insanity, infancy, duress, sometimes intoxication, voluntary manslaughter
(heat of passion)
2) Self-Defense
 Definition: allowed to defend yourself from unlawful force (socially justified)
 Policy rationale
o Deterrence - good to prevent crimes
o Retribution - person attacking you forfeited their right
 United States v. Peterson
o He saw the victim stealing his wind shield wipers. He went inside, got his gun, came back out and
didn’t let him leave. The victim approached him with a wrench and Peterson shot him
o Two key elements brought on appeal:
1. Defendant as "initial aggressor"?
 Defendant started the violence but the victim started the crime, so which matters:
provocation or violence? The court held that the first to commit an unlawful act that
showed violence is the aggressor
2. Duty to retreat?
 One must retreat if possible. However, castle doctrine allows one to not have to retreat
one's own home, but because he was the initial aggressor, he cant claim it
o He was charged with 2nd degree murder but convicted of voluntary manslaughter (lesser included
offense)
Side note: Lesser included offense:
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If all the elements included in a crime are included in another crime, you can be
convicted of that
Ex: Aggravated assault = assault + battery. Could also be charged with just assault
(AA = A + B) --> (A =A)

General Elements:
o Defendant has to establish -- the doctrine requires the act to be necessary) -- this is CL, the MPC is just
slightly different
(1) Honest and reasonable fear of
(2) Immediate/unlawful threat
(3) Proportional response
(4) Not the initial aggressor
(5) Duty to retreat (deadly force only)

CL Elements:
1. Honest and reasonable fear
 Fear must be (1) honest and (2) reasonable (in your head)
 Challenges of reasonableness:
 How subjective?
- Can come up practically in jury instructions and practically in what evidence can
be introduced
 To whom?
- Typically about social norms (is there bias?)

2.
Of immediate/unlawful threat
 Imminent (time requirement) and unlawful threat
 Whatever was perceived/feared in 1 must be imminent and unlawful
 Lawful means more by law enforcement not whether pulling a gun was unlawful (I think)
3.
Proportional response
 Deadly force only for deadly force
 Cannot meet nondeadly force with deadly force
 Deadly force = force that threatens death or serious bodily injury
4.
Not the initial aggressor
 No self-defense for initial aggressor
 Other factors that matter:
 Nature of the aggression -- first to cause violence
 The issue of escalation -- can sometimes be the initial aggressor and even cause
violence but can use self-defense. this only applies in some states
 Ex: push someone off stool and they pull out knife
 The issue of timing -- this deals with:
 Withdrawal
 Ex: someone is robbing bank and puts gun up to leave and then
person shoots him, the shooter begins a new aggression
 Revival
 Ex: at robbery, you leave for 3 hours and come back and shoot them
5.
Duty to retreat
 Duty to retreat before deadly force if you can do so safely
 Exception: Castle doctrine -- never have to leave your house
State v. Norman
I. Appellate court (reasonableness)
 The court had to determine what a reasonable person would have done in her situation. The
court held that a reasonable person would have went to the authorities. However, because she
had battered wife syndrome, she had to be held to the standard of a reasonable person with
battered wife syndrome . They say that the reasonable person standard had to be changed
because she was so uniquely affected
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II.

Supreme Court (imminence)
They held that she was not facing an imminent threat. They were worried of the precedent it

would set if they allowed the claim of self-defense when here spouse was asleep when she
shot him
MPC
o More fact-based (likes to decide after the fact - standard-based, not-rule based)
o Elements:
1. Immediate/unlawful threat
 Force "immediately necessary… on present occasion"
 Doesn’t really need imminence, just needs to be immediately necessary
2. Proportional force
 Expands ability to deadly force (such as for rape)
3. Initial aggressor
 More limited concept
 Initial aggressor always keeps self-defense unless she had "purpose" to cause
death/serious bodily injury
o Purpose is a super high mens rea so this is hard to prove
4. Duty to retreat
 Limited to "complete safety"
 Only have to retreat if your doing so would be completely safe
 No duty to retreat at home or work
5. Honest/reasonable fear
 Relaxes the requirement -- similar to imperfect self-defense
6. Purpose or knowledge crimes - honesty only (reasonableness does not matter)
 Excuses murder or any other purpose/knowledge crime if you honestly feared the crime
(even if unreasonable)
 Ex: someone is walking up to your car. Carjackings have been more common in the are,
so you shoot the person but it was unreasonable at the time (person was not going to hurt
you). Under the MPC, you could not be charged with murder, only voluntary
manslaughter because you honestly thought you were in danger. This does not mean you
will win the case, but the jury is allowed to hear the defense
MPC self-defense elements (summary)
1. Relaxes immediacy
2. More acts justify deadly force
3. Narrows initial aggressor
4. Weakens duty to retreat
5. Relaxes reasonableness requirement

Burden of proof
o On exam for self-defense, just assume defendant has to establish the elements
o The main issue for self-defense is not stand your ground but more about the burden of proof
o Types:
 Burden of production
 Burden to produce evidence (have to put all evidence on the table)
 Burden of persuasion
 How convincing it has to be (that evidence has to prove it beyond a reasonable
doubt)
 Historically, defendant had the burden of persuasion. This is not true anymore .
The defendant has the burden of production for self-defense, but then it shifts and
state has burden of persuasion (defendant no longer has to prove self-defense, state
has to now prove it was not self-defense
 After defendant just simply claims self-defense (just has to put anything on the
table), the self-defense is presumed true until state can prove otherwise -- very
hard to beat self-defense case (ex: police officer shoots a kid. If there is no witness,
very hard to prove not self-defense
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3) Justification Defenses
1. Necessity
 The act you committed is usually wrong, but in your situation it is not. The court becomes a mini
legislature by saying "I think its okay in this situation"
o Ex: the trolley problem from the good place -- either pull the lever and hit one or don’t move and
hit 5. Is an omission better than an act?
o Ex: common cases = DWI (driving when drunk but because they had to), and possession of a
firearm (not allowed to have a gun but did to protect themselves)
 Only have to know common law, no one follows MPC version. Assume they are the same
 The Queen v. Dudley and Stephens
 Nelson v. State
o Case where defendant gets truck stuck in mud. Steals dump truck and gets that stuck too. Then
Curly comes and they steal front loader too. They free Curly's truck and the dump truck but get the
front loader stuck and never frees his truck
o The case was appealed on the argument that the instruction was not subjective enough (too
objective). Wanted to make it "what would a reasonable man do in my situation given my
circumstances"
 Here, (1) he feared his truck tipping over "soon" but he slept in truck so clearly it was not
imminent. Also, (2) he did not pick the lesser evil. Fear of his truck tipping over was not
more evil than stealing and damaging government property. (3) As for alternatives,
multiple people offered to stop and call the cops and he declined.


2.
Elements of necessity:
(1) Imminent danger/emergency (time limit)
(2) Defendant chooses lesser evil
 Evil chosen < avoided evil -- court balance the two
(3) No legal alternative/necessary
 Did you really have to do it? Did you have another choice?
Categorical limitations
1. You couldn’t have created the necessity
2. Necessity does not apply to homicides
 Ex: pack of wolves chasing group of people and you push one friend down. This does not
give you the defense of necessity
 Courts do not want to have to deal with the trolley problem, so they exclude it fully
3. Necessity does not apply to economic necessity (must be physical)
4. Not all states require the necessity to be naturally occurring
Defense of others
 Ex: you see someone beating someone with crowbar in parking lot. And you shoot and kill them.
 Different approaches:
o Minority approach
 "step into shoes" of the victim -- if victim could use deadly force, you could use deadly
force
 Problem, what if victim was actually the aggressor? Then you cant shoot them even if
you didn’t know they were the aggressor. Didn’t allow for reasonable mistakes
o Majority approach
 "Reasonableness" -- can use deadly force if you reasonably believe the victim could have
used reasonable force
4) Excuse Defenses:
 The act is bad but it is excused. The court does not look at the act, instead looks at the actor. The act remains a
crime but you are not held culpable for it.
o Examples = Duress, insanity, intoxication, infancy, diminished capacity)
o Burden = don’t have to show that they aren't insane, they have the burden to show that they are
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1.
1.
2.
Duress
o Defendant has committed a crime only because of an unlawful threat of death or serious injury.
o Policy rationale:
 Causation -- person did not freely choose to commit the act. They were acting under a threat
o
CL -- Duress
 U.S. v. Contento-Pachon
- Case where defendant was coerced into swallowing cocaine filled balloons. The court
held that the instructions of duress should have been given to the jury
- The court addressed the elements and only 2/3 are argued (#1 and 3)
 They found that the threat could have been imminent because they were
threatening his family. They also held that he could have had no means of
escape because he couldn’t trust the police. (at least enough for the jury to be
instructed on the defense
- Also looked at necessity -- court held that he did not pick the lesser evils. Also, it was
coerced by human not physical forces (this is only used by some courts)
o
Elements of Duress:
(1) Imminent serious threat
 Time limit
 Must be physical and serious harm (economical and reputational harm does not count)
(2) Reasonable fear
 Even if threat is not real, can count if defendant reasonably believed it to be real
(3) No reasonable means of escape
 Must not have had a reasonable way out
o
Categorical limits
 Clean hands requirement -- at CL, cant use duress if negligently put yourself in a situation (ex:
joined the mafia or a gang and now claim you did a crime under duress)
 Can't use for homicide
 Can duress be used for felony murder? If you were under duress to burglarize a home or your wife
would be killed. If you go to rob the house and kill a person there, are you liable? Duress may
cover the felony (burglary), so would it cover the murder too? Courts are split on this
o
Ex: black mirror blackmail episode -- duress must cover a physical injury. This episode dealt with purely
reputational injury.
o
MPC - Duress
 Flexible and can use in more cases; more expansive
 Standard
(1) Use/threat of "unlawful" force
(2) Person of "reasonable firmness in his situation" would be unable to resist (feel like you have
to - no way out)
 Differences:
 As for first element, doesn’t have to be deadly force (or serious bodily injury)
 Doesn’t have to be imminent, just has to be lawful
 As for second element, same as last one but that now its person in your situation
would feel no way out, not reasonable person would feel no way out
 Categorical Limitations
 Duress defense not limited to protecting you, friends, or family (can protect all people)
 Potentially available in homicide cases
 Clean hands requirement expanded - only lose it if you recklessly put yourself in a
situation (have to be consciously aware that you would be under duress)
 Unavailable for crimes of negligence
.
Intoxication
o Overview:
 "I did the criminal act but I should be excused because I was too drunk to know what I was
doing or I was too drunk to have the mens rea"
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
o
3.
Problem: is it an excuse crime or is it more absence of evidence defense (can't prove the
requisite mindset)?
Involuntary vs. voluntary intoxication
 Involuntary -- unwillingly
- If it does come up, it is potentially a full defense
- Must be unwitting or coerced (ex: hangover)
 Voluntary -- willingly (way more common for crimes occurring after intoxication)
- U.S. v. Veach
 When is intoxication a defense? depends on the crime
 Resisting arrest was a general intent crime
 The threat to impede was specific intent
- Common law
 Potential defense for specific intent crimes
 Generally rejected for general intent crimes
- MPC:
 Defense when negates an element (usually mens rea)
 Rejected for reckless and negligence crimes (pretty much same as general intent
crimes)
- Modern limits:
 Some states have created laws that don't allow the defense ever. And most people
just don't buy the idea of it
Insanity
o Overview:
 Again, the act remains bad but we excuse the actor
 An accomplice can be held liable for helping an insane person. Unlike with justification, where the
act is good, so the accomplice is not liable
 Need some kind of mental disease
 Unlike the rest of crimes, we are not judging the level of knowledge, we are judging the quality of
knowledge
o
Approaches to Insanity:
1. Cognitive = "M'Naghten test"
 Cognitive = either you know or you don’t
o The hardest to prove -- only a limited number of people can use the defense
o Only utterly delusional people that don’t know what they're doing
 Standard
o Defendant must be unable to know (1) the nature of the act, or (2) the wrongness
of the act
 Criticism
o Too strict; most mentally insane people know what they are doing and know its
wrong, but can't appreciate it
o The idea of "knowledge" is problematic
o Limits the testimony of medical experts -- because if asked "did he know what
he was doing was wrong" and they would say "yes but.." but the court didn't
allow any explanation -- only yes or no
2.
Volitional = "Irresistible impulse"
 Standard
o Defendant is legally insane even if they know what they are doing is wrong but
they have some impulse where they cannot stop it
 Criticisms
o Too broad -- anyone could claim they felt an impulse
o Hard to limit it -- child molesters could claim this as a defense
o Narrow view of how crime happens
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3.
Product = Durham
 Standard
o Much broader, defendant is legally insane if the criminal act was the product of a
mental disease or defect
Criticisms

o Very vague -- lots of crimes are committed by people with mental health issues
 Proponents of it say that the vagueness is good because it lets experts
testify
 What does product mean?
4.

MPC
 Takes the cognitive and volition test and combines/standardizes them
 Standard:
o Defendant must "lack substantial capacity" to"
1. Appreciate" wrongfulness/criminality
OR
2. "Conform conduct to requirements of law"
(it is an "or" because someone may appreciate it but can't stop themself)
Insanity in practice
 Procedure:
 It is an affirmative defense (burden on defense to prove it) but it used to be the other way
 After Reagan attempted assassination, they severely limited the insanity defense
(political backlash)
 Often has its own pleading (not guilty by reason of insanity)
 Comes with own procedure - need experts, take a test
 Practice
 Very rarely works
 Comes with skepticism
VII. SPECIFIC OFFENSES
1) Sexual Offenses I
2) Sexual Offenses II
3) Theft; Exam Review
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