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Crim Outline

Crim Outline
1. Introduction to Criminal Law: Foundation
A. Elements of each offense will have:
Actus reus
○ guilty act; prohibited action
Mens rea
○ guilty mind; mental state
May also have attendant circumstances
○ conditions that must be met, such as age of victim, prior convictions of
Crimes that require a particular result (e.g., murder) may also require causation
Identity of D may be an issue
○ was D the bank robber?
VII. Jurisdiction –
● must occur within physical boundaries; Congress may legislate only
within its enumerated powers
B. ​Theories of Punishment
Utilitarian Reasons
● Protect public safety/Incapacitate offenders
● Deterrence/Promote Respect for the Law
● Rehabilitation – GED, treatment, job skills
Retributive Reasons
● Punishment
Making Whole
● Restitution – repaying victims for loss
● Expiation – paying dues to society to regain entry
● Restoration – helping defendants understand,repair harm caused to
C. ​Due Process:
I. Clause of the Fifth Amendment requires that the prosecution must prove each and every
element of the offense beyond a reasonable doubt. (Re-winship).
Owens V State:
II. Burden of proof: On the state to prove beyond a reasonable doubt (high burden)
III. Due process requires right to fair notice of what is prohibited
No ex post facto law should be passed (legality principle)
D. . Elements of Offenses
A. Actus Reus- Voluntary acts and omissions
Legality Principle
A person may not be convicted and punished
unless his conduct was previously defined as
criminal by statute.
Lenity Doctrine​: ambiguous statutes should be interpreted to favor defendant
Double jeopardy​: If defendant had won, the government does not get to appeal.
● Why do we punish violations of criminal law?
● Retribution–Incapacitation to protect public safety
● Deterrence (general and specific)
● Rehabilitation
● Restoration (making whole, restitution, expiation)
E. Juries:
Right to jury trial for all non-petty offenses (offenses punishable by > 6 months in prison)
Can be waived
Finder of facts; determines guilt or innocence
Is not permitted to know potential sentence upon conviction
F. Judges:
Conducts trial or plea hearing (jury finds facts, judge decides questions of law, manages
Conducts bench trials if jury is waived or penalty is 6 months or less
Imposes sentence
Appellate judges review cases for legal errors
G. On Appeal:
● Lower court's findings disturbed if there was clearly erroneous
● Viewing evidence in light most favorable to the prosecution, could any rational
trier of fact have found the defendant guilty?
H. Proportionality:
8th amendment
a. Excessive bail shall not be required,Nor excessive fines imposed,Nor
cruel and unusual punishment inflicted
b. Sentence violates 8A if it is barbaric or excessive
c. Proportionality Principle: Sentence must be proportional to crime
● Coker
● Ewing
Legality Principle
Desuetude: When laws are unenforced for long period of time, they may lapse.
Criminal statutes should be understandable to reasonable law-abiding persons•
Criminal statutes should be crafted so as not to delegate policy matters to police, judges,
and juries to apply on an ad hoc and subjective basis•
Lenity doctrine​ - Interpretation of ambiguous statutes should favor the accused
Actus Reus:​ M
​ artin V State, People V Beardsly
Required only for result crimes, not for conduct crimes•
Result crimes – crimes which require a certain harm to occur –Homicide, battery,
destruction of property
● Conduct crimes – crime is committed regardless of whether any harm
occurs–Driving while intoxicated, possession of firearm by felon, carrying a
firearm during and in relation to a drug trafficking offense
1) But-For Causation
● But-for conduct of defendant, result would not have occurred
● Factual cause
● Threshold question
2) Proximate Cause ​(rideout)
● if but-for is met, consider whether there is also legal cause
● Are conduct and harm connected closely enough to hold D responsible?
3) Substantial Factor
● Applies only in rare cases•
● Where two acts each could have caused the harm on their own
● e.g., two defendants shoot the victim at the same time•Neither is the but-for
● But causation is established if each was a substantial factor in the death
4) Acceleration
No universal test.
Factors to be considered by factfinder:
● De minimus contribution to social harm – intervening harm is too insignificant to
cut off causation for D
● Intended consequences factor – if result was what D intended, favors causation
● Omissions factor – omission of another, even with a legal duty, does not cut off
causation for D
● Foreseeability factor – foreseeability favors causation
● Apparent safety doctrine – once V reaches places of apparent safety, causation
● Voluntary human intervention – intervening act by another may cut off causation
Rose:​ Concurrence of elements. Causation needed to be proven as well as mens rea
and actus reus.
Actual (factual) cause is but-for
Legal cause is proximate cause – what is close enough of a causal connection between
act and result to hold actor accountable?
A. Cunningham
B. Conley: transferred intent
If D intended to harm one person, but instead harms another, D still guilty
because he is just as culpable and society is harmed just as much as if D
had accomplished what he intended.
● D intended to kill “a” person, and he did kill “a” person, even if not the
intended victim.•Harm must be of same type (e.g., if D attempts to harm
person and harms property instead, no transferred intent)
1. Motive V intent:
● Motive is different from intent
● Intent is the desire to bring about a particular result (e.g., death or bodily harm)
● Motive is the reason D desires to bring about the particular result (e.g., jealousy,
insurance proceeds)
2. General vs. Specific Intent
● MPC does not distinguish
● General intent pertains only to actus reus that constitutes the offense
● Specific intent has a specific mental element above and beyond the mental state
required to perform the act. you didn’t just intent to hurt them you also intended to have
a specific result
● Posession of drugs (general) intent to distribute (specific)
● Assault of a person (general) based on race (specific)
○ Why it matters:
■ Acting with specific intent may bring enhanced penalties–Affects defenses
that are available
■ easier to defend against specific intent crime than general intent crime
because harder to prove specific intent
Specific intent examples:
■ Intent to commit a future act
■ Special motive or purpose
■ Awareness of an attendant circumstance
3. If statute is silent as to mens rea:
MPC ​= at least recklessly, ​2.02(3)
Federal law = knowingly
MPC 2.02(4) – ​Mens rea applies to each material element of offense under MPC
unless otherwise stated•
MPC 1.13(10) ​– Matters that are not material elements, e.g., jurisdiction, venue,
statute of limitations, so no mens rea needed
4. Applies to every element/word of statute if knowingly is mentioned
● “knowingly possess a firearm” requires knowing about the possession
and that it is a firearm that is possessed)
● But not always
5. Strict Liability
● Most crimes will have a mens rea
● If not, then court will write one in
● Unless it is a public welfare crime
Or legislature intended to punish all violations without regard to mens rea
No mens rea required where legislature intends to punish all violations of
statute without regard to mens rea
E.g.,statutory rape
Malum in se - a wrong in itself; an act or case involving illegality from the very nature of
the transaction; morally wrong
( Murder, Assautl, rape, robbery)
Malum prohibitum - a wrong prohibited; a thing which is wrong because it is prohibited
wrong based on statute
(traffic violations, food and drug labeling).
Garnett: ​ without a requirement of mens rea, a court is not to read one in unless the
legislature clearly meant for there to be one.
What is the mens rea –
strict liability, general intent or specific intent?:
● If strict liability, then mistake of fact is no defense
● If general intent, then mistake of fact is a defense only if it is reasonable(objective)•
● If specific intent, then genuine mistake of fact (subjective) is a defense if it negates mens
rea, even if it is not reasonable (objective)
1. Mistake of law is a defense when:
Failure of proof – cannot establish the mens rea element of the crime–Lack of fair notice
– the law was so obscure that it is grossly unfair to enforce it; very rare–Equitable
estoppel/reasonable reliance – D has relied on a statement by an official source (statute,
judicial opinion, administrator) that his conduct was permissible; also rare
● Murder
● Manslaughter
● Felony-Murder
● Capital Murder
1. Murder –
● Common Law:
Definition at common law:–The unlawful killing of another human being with malice
Four kinds of intent = malice aforethought:
Intent to kill:
Intent to cause great bodily harm resulting in death
Depraved heart – extreme recklessness
Felony-murder – if intent to commit felony and death results, strict liability for
Year and a day rule: ​A defendant could not be prosecuted for murder unless the
victim died within one year and one day of the act inflicting injury.
A. Most statutes have eliminated this rule, in part because of improvements
in medical treatment. ​Causation is fact question.
First degree/second degree
Other killings lacking malice aforethought are manslaughter – voluntary and
Negligent homicide – requires gross negligence
2. Manslaughter:
● A murder charge may be reduced to manslaughter where there is no
○ Voluntary Manslaughter–Intentional homicide:
■ done in a sudden heat of passion
■ adequate provocation (words alone not enough)
● Adequate provocation limited to certain
categories:–Extreme assault and battery
● Mutual combat–Defendant’s own illegal arrest
● Injury or serious abuse of close relative
● Sudden discovery of spouse’s adultery
● Mere words not enough (even “informational” words
notifying D about one of the topics above)
■ before there has been reasonable opportunity for the passion to
cool, and
■ causal connection between elements
● Heat of passion/provocation–Involuntary
● Recklessness less than depraved heart
● MPC 210.3
○ Did D have an extreme emotional or mental disturbance? (Not mental
○ Is there a reasonable explanation or excuse for the disturbance sufficient
to reduce murder to manslaughter? (e.g., someone kills your child)
○ Considering the viewpoint of a person:–In the actor’s situation–Under
circumstances as believes them to be
Casassa: ​extreme emotional disturbance
3​. Negligent Homicide:
● Common Law –Groups it under “involuntary manslaughter” –
● Less than depraved heart, but more than civil negligence
● Misdemeanor-manslaughter
-Negligent V reckless under MPC
Recklessly (is aware of risk)
Negligently (should be aware of risk)
MPC 2.02(2)(c) Recklessly –consciously disregards substantial and unjustifiable risk–disregard is gross
deviation from standard of care a reasonable person would observe in actor’s situation.
•MPC 2.02(2)(d) ​– Negligently–should be aware of substantial and unjustifiable risk–failure to
perceive risk is gross deviation from standard of care a reasonable person would observe in
actor’s situation.
4. Felony Murder:
•If a person commits or attempts to commit a felony and death results during commission or
attempt, then he is guilty of murder.
MPC 210.2 (B)
– engaged or is an accomplice in the commission of or attempt to commit or flight after
committing certain crimes (rape or deviate sexual intercourse by force or threat of force, arson,
burglary, kidnapping or felonious escape)
Limitations: ?
Howard: ​Inherently dangerous felony
Sophophone:​ ​AGENCY THEORY
A. AGENCY THEORY: Agency Approach” to the felony murder rule, Joe can only
be convicted of murder if the individual who killed the victim was his accomplice
in the felony.
5. Misdemeanor-Manslaughter: ​was the crim intended during the commision of a wrongful
● CL: Unintended homicide occurring during commission of unlawful or morally wrongful
act not amounting to a felony
● Parallel to felony-murder
● Does not exist under MPC
● Limitations – some states limit to:–Only malum in se misdemeanors (wrong in itself)
○ Only misdemeanors that are dangerous under the circumstances of the case
○ Or abolished altogether
Murder 210.2:
P, K–R manifesting extreme indifferent to value of human life
Felony-murder for certain crimes (recklessness presumed)
Manslaughter 210.3–
Recklessly (involuntary)–
Extreme emotional disturbance (voluntary)
Negligent Homicide 210.4–​Death resulting from gross deviation of standard of care
8th and 5th amendment
● 14th: nor shall any State deprive any person of. . . life, liberty, or property, without due
process of law.
○ No state shall . . . deny to any person within its jurisdiction the equal protection of
the laws.
● “Incorporation Doctrine” - SCOTUS uses due process clause of 14th Amendment to
incorporate parts of the Bill of Rights to make them applicable to states.
Furman V Georgia: ​No death penalty
Effect of Furman
● All death penalty statutes had same flaw of permitting juries unfettered discretion.
● Resulted in suspension of death penalty. •
● In response, 35 states and federal government passed new statutes with a Furman fix
-–guidance for juries to avoid unfettered discretion–Use aggravating and mitigating
Gregg V Georgia
● Aggravating or mitigating circumstances
● (1) Death penalty is not unconstitutional per se
○ That is, it is not cruel and unusual
● Court considers evolving standards of decency that mark the progress of a
maturing society
● Punishment must accord with “dignity of man,” by not being “excessive:”
● (a) punishment must not involve the unnecessary and wanton infliction of pain
● (b) Punishment may not be grossly out of proportion to severity of crime
● (2) Georgia’s statute is not unconstitutional because it has safeguards against
○ Requires jury to consider circumstances of the crime and characteristics
of the offender, including aggravating and mitigating factors
○ Uses clear and objective standards by requiring satisfaction of at least
one of 10 aggravating factors
○ Provides for automatic appeal
Crimes other than murder:
● Rape of adult
● Rape of child
● Certain defendants:
Insane, Intellectually disabled, Minor under 18
Invalidated statute making death mandatory for anyone convicted of first-degree murder.
Statute failed to permit individualized consideration of mitigating factors.
Not only is too much jury discretion prohibited (Furman), but also absence of discretion.
14A – D must show discriminatory effect and purpose in his case
(2) 8A – Study did not show a constitutionally significant risk of racial bias affecting
Georgia capital sentencing process
● Admission of victim impact evidence during penalty phase of death penalty trial
does not violate 8A
● Of the 589 inmates on Death Row at time of Furman, whose death sentences became
life sentences, 7 were later determined to be innocent.
● Through 2017, 161 defendants sentenced to death were later acquitted, had charges
dismissed or granted a pardon based on evidence of innocence.
● Death penalty costs $114 million per year more than cost to incarcerate for life
1. Motion to dismiss:
Failure to state an offense
–Even if all allegations are true, conduct does not violate statute
–e.g., Muscarello, whether “use and carry” gun includes having it in car
–Rule of Lenity
–often court will deny until proofs come in at trial, in contrast to civil cases where it is more
2. Challenge the statute as unconstitutional
–Void for vagueness under 5A
–Overly broad under 5A
–Violates 1A, 14A, etc.
Failure of Proof
● Argument that prosecution has failed to establish one or more elements of the offense
beyond a reasonable doubt
● Most common defense​•
● Defendant need not put on any evidence•
● OR Defendant may offer evidence to rebut government’s case:–
○ Call witnesses to offer different version of events, alibi, etc.
3. Affirmative Defenses:
A defense offered by the defendant to negate criminal liability even if it is proven that he
committed the alleged acts.
Offense Modifications
Public Policy Defenses
Entrapment by Estoppel/Reasonable Reliance
A. Offense Modification
● Defendant admits to committing the crime, but not the harm sought to be
● Invitation to nullify
● e.g., defendant who makes payments to mob boss to avoid harm may be guilty of
aiding and abetting extortion, but more victim than perpetrator
B. Justification
● Defendant committed the crime, but did so because he had to make a
“choice of evils” to avoid a greater harm, so should not be punished
● Focuses on the act
● Results in no charge or not guilty•
● Examples –
○ Self-defense
○ defense of others
○ defense of property
○ Necessity
○ Choice of Evils
○ Public Authority
-Must be necessary
-Must be proportional
-Can’t kill someone to save your bicycle from theft
C. Excuse
● Defendant committed the crime, but is not morally blameworthy
● Focuses on the actor
● Could result in no charges, not guilty, or guilty but punished less•
● Examples –
○ insanity, intoxication (sometimes), Duress
1. DURESS at CL (common law)
● There is an immediate threat of death or serious bodily injury that will
occur unless you commit the offense
● a well-grounded fear that the threat will be carried out; and
● no reasonable opportunity to escape.
D. Public policy:
● Public Policy Defenses
● Defendant committed the crime, but some greater public policy reason
should apply to override criminal liability
● Examples –statute of limitations–diplomatic immunity
E. Entrapment
● Defendant was unwilling to commit the crime and the government induced
or persuaded him to overcome his will to commit it
● Sometimes offered in undercover sting cases;
● e.g., selling drugs to undercover agent
● Jury instructed to consider:–
○ Whether D originated idea for the crime
○ Whether D engaged in similar crimes before or after
○ Whether D expressed reluctance that was overcome by
government persuasion
■ If so, what kind and how much persuasion gov used
F. Entrapment by Estoppel
○ Defendant acted in reasonable reliance on an official statement of the
law, by a government official, court opinion, or other official interpretation,
that was later determined to be invalid or erroneous
​G. Burdens
● Burden of Production:
○ Producing some small amount of evidence sufficient to go forward
to the jury
○ Defendant usually has this burden for affirmative defenses
● Burden of Persuasion
○ Sufficient evidence to convince the factfinder that some fact is true
○ This burden may be on prosecution or defense when defendant
asserts an affirmative defense
○ May be by preponderance, clear and convincing, beyond a
reasonable doubt
○ E.g., in federal cases, government must prove lack of self-defense
beyond a reasonable doubt, D must prove insanity by clear and
convincing evidence, D must prove duress by preponderance
H. ​Self Defense:
Common law:
● Non-aggressor is justified in using force upon another if he reasonably
believes that such force is necessary to protect himself from imminent use
of force by another person
○ Deadly force permitted only to prevent death or great bodily harm
○ Threat must be unlawful–
○ Threat must be imminent
○ Response must be necessary
○ Response must be proportional
○ Belief must be honestly held and reasonable
1. Provocation:
Self-defense justification not available to one who provokes
● If aggressor withdraws from conflict and informs other party by
words or acts, then he is restored to position where he make
invoke self-defense
2. Retreat:
● Rule of Retreat to the Wall – one has a duty to avoid deadly force
if he has avenue of safe retreat–
● Run, hide, fight
- Castle Doctrine
● No duty to retreat from your own home when attacked therein through no fault of your
● Extends to curtilage (yard, driveway, etc, attached to house)
● Stand Your Ground
● Some jurisdictions diverge from common law duty to retreat
● Stand Your Ground laws extend castle doctrine to cars and public places
● A person may “stand his ground” and need not retreat when attacked
● may use deadly force if reasonably necessary to save himself;
● Recognizes that when someone has gun, running may not save
● Jury was instructed about stand your ground in George Zimmerman trial for murder of
Trayvon Martin
3. Reasonable belief standard:
Common law - D need not be correct in his belief that threat of deadly
force was imminent, but belief must be reasonable
4. Imperfect Self-Defense:
Some jurisdictions will reduce murder to manslaughter where a person
used deadly force because he had a genuine but unreasonable belief that
he faced a threat of deadly force
II. ​Goetz
III. Wanrow
Self Defense under MPC:
MCP 3.04 and 3.09
● Limit on self-defense for crimes charging recklessness or negligence:
● If D’s belief that force is necessary is mistaken, it must be reasonable to be successful in
asserting this defense
Purposely and knowingly​-> D must believe defense is necc.
Highest penalties for worst offenders; If D believes force is necessary, even if wrong, then he
should not be punished at this level. But should he be punished for a lesser offense? If so, see
Recklessly and negligently​-> D must believe defense is necc. And belief must be reasonable.
“Imperfect” self-defense. Still criminal, but lower penalties than above. D punished at this level if
his mistake (that force was necessary) is unreasonable.If his mistake is reasonable, then his
force was justified, and no crime.
Murder-> manslaughter-> neg homocide
Norman: reasonableness in domestic violence case
Defense of others:
● Same as Self-Defense
● Deadly force permitted only to prevent death or great bodily harm to “another”
● Threat must be unlawful
● Threat must be imminent
● Response must be necessary
● Response must be proportional
● Belief must be honestly held and reasonable
1. Kurr
J​. Defense of Habituation
Defense of Habitation
● Common law–A person may use deadly force when reasonably necessary to protect the
sanctity of his home from someone who intends to commit a felony or do serious bodily
harm therein
● No duty to retreat from one’s own home
● Felony at common law was an “atrocious” crime, so must be a violent felony
1. Boyett
MPC 3.09:
Worst offenders: those without any belief of necessity are punished as murderers
Next level of offenders: those with subjective but unreasonable belief of necessity are not
murderers, but can be punished for manslaughter or negligent homicide
Next level of people:those with subjective and reasonable belief of necessity are not punished at
all; complete defense
Public Authority:
● Arrest or force is a seizure under the 4thAmendment and must be reasonable
● Statutes may further say force by police officer is justified if necessary to make lawful
● May limit deadly force to situations where:– crime involved deadly force–Or risk of death
or serious bodily injury to officer or another person
1. Garner v. Tenn:
● Use of deadly force to arrest a fleeing felon is reasonable under 4th Amendment
only where officer reasonably believes suspect poses risk of serious injury or
death to officer or others
2. Graham v. Connor
● Applies Garner to all uses of force
Officer may use force in seizing suspect that is reasonable under circumstances,
○ severity of crime-whether suspect poses risk to officer or others–whether
suspect is resisting or evading arrest–officer’s need to make split-second
decisions in circumstances that are tense, uncertain, and rapidly evolving
3. Castille: ​Reasonableness must be judged from the perspective of an officer acting
reasonably at the moment he is on the scene, rather than with the 20/20 vision of
● The reasonableness inquiry extends only to those facts known to the officer at
the precise moment the officer acted with force
K. ​Justification-Necessity:
● choice of lesser of two evils
● A person may violate the law to achieve a greater good for society, not self
● Policy reason​ – Law should promote achievement of higher values at the expense of
lesser values
D may assert defense of necessity or “choice of evils” if:
(1) necessary to prevent significant, imminent harm
(2) no reasonable, legal alternative
(3) harm done prevents a greater harm
Necessity – Common Law
● Need must be created by natural forces
● Can’t use defense for economic crimes (helps only self, not society)
● No defense to murder
● D must not have caused the situation
● Public welfare-greater good
1. Nelson
Necessity under MPC 3.02
Unlike common law, MPC 3.02:–No imminence requirement, No natural forces limitation, No
prohibition on defense to murder, Applies to protect self or others
● Force of nature
● Protect public welfare (greater good)
● Choice of evils
● No reasonable alternative
● Immediate harm
● No defense to murder
● Can’t be at fault in creating situation
● Can’t use to avoid economic harm
L. Duress(CL):​ Duress – commit this crime or else
● Human threat
● Protect self
● Commit specific crime to avoid threat
● No reasonable opportunity to escape
● Immediate harm
● No defense to murder
● Can’t be at fault for exposing self to threat
1. Contento-Pachon
Unlike common law, MPC 2.09:
–No immediacy requirement
–No restriction in murder cases
–Threat need not be death or great bodily harm
2. Unger
3. Anderson: ​Duress no defense to murder
M. ​Intoxication:
Under CL/Common law:
Intoxication is a defense to specific intent crimes, but not general intent crimes
● This rule applies in jurisdictions that retain specific/general intent distinction, such as
federal law
○ Failure of proof – defense will succeed if prosecution cannot establish mens rea
of specific intent
○ For specific intent crimes, jury may consider intoxication to decide whether mens
rea established
○ For general intent crimes, no evidence or jury instructions about intoxication
1. Voluntary:
Intentionally consumed alcohol or drugs
2. Involuntary​ –
● Coerced
● Forced down your throat
● Pathological: Grossly excessive effect based on amount consumed to which D
did not know susceptible (“but I only had one drink!”)–
● Mistake: Thought I was drinking fruit punch, but it contained grain alcohol–
● Unexpected intoxication from prescribed medicine (side effect; Tiger Woods)
A. Veach
N​. Insanity:
● Mental Competency: Ability to understand proceedings and assist in defense
● Mental Illness –Not necessarily a defense
● Insanity ​–A legal conclusion that a person is not guilty of offense or guilty but insane,
and not deserving of punishment
● Diminished capacity –May negate element of offense (mens rea)–Partial responsibility
for crime, reduced penalty
Insanity Tests
● M’Naghten Rule
● irresistible Impulse Test
Product Test
MPC Test
A. Johnson
– Knowing or understanding:nature of one’s conduct
–whether one’s conduct is right or wrong
-ability to control impulses
M’Naghten Rule
At time of act, D was under such a defect of reason from mental illness as to not know the
nature and quality of the act he was doing
OR if he did know it, that he did not know what he was doing was wrong
● Cognitive, not volitional
Irresistible Impulse Test​•AKAControl Test
● Supplements M’Naghten to add volitional component that person acted on irresistible
● BUT - Excludes crimes committed after excessive brooding by one unable to resist
Product Test
● Crime was a product of mental disease or defect
● Full and complete expert testimony
● Jury may consider all relevant information
● BUT - Inadequate jury guidance; experts usurp jury function
B. Wilson
C. Yates
O. Dimished Capacity:
Diminished Capacity•
Mental defect short of insanity–
● Mens Rea Variant –
○ Mens Rea Variant –Failure of proof rather than excuse
○ Permits admissibility of evidence about D’s mental health even where it
does not meet insanity standard
○ D argues that he was unable to form requisite mens rea because of
diminished capacity
○ Partial Responsibility Variant
○ Even though elements of crime are met, D is less culpable and should be
punished less severely
● Gap filler for defendants who don’t satisfy insanity defense, but who are not as culpable
as other defendants
● Permits a more individualized assessment of D’s culpability instead of all-or-nothing of
insanity test
● Individualized culpability is not consistent with legal standards of society
● Evidence of mental illness could mislead jury into believing all D’s with mental illness
must be acquitted
A. Clark
● Some states use ​MPC 210.3
● Most states say mitigation from murder to manslaughter must be based on situation, not
D’s mental health•
● WHY? could be used to justify all killings; may someone with anger management issues
always reduce murder to manslaughter?
VII. Inchoate defenses: incomplete
● Attempt
● Solicitation
● Conspiracy
Complete Attempts:
● All steps in commission of crime completed, but D failed to achieve harm intended.
● E.g., shot at a person but missed
Incomplete Attempts:
● Defendant took some steps toward commission of crime, but was stopped along the way
● e.g., planning to shoot a person but someone tackled me before I pulled the trigger; or
police learned of my plan and arrested me before I took aim
1. Gentry: You cant attempt the unintended
A. Attempt:
Mens Rea
Under common law(CL): attempt is specific intent crime
● Requires ​dual intent​–Intent to commit the crime (specific intent)
● And the mens rea required for the commission of the crime itself (could be
general or specific intent)
● Gentry – can’t attempt murder without intent to kill (failure to satisfy first element
1. Bruce: You can’t ATTEMPT felony murder if no murder ensues
Failed Attempt:
Opposite scenario:
can you have felony-murder if murder results from attempted felony?
● During attempted robbery, victim grabs gun, it goes off, and kills an innocent bystander.
Is robber guilty of felony-murder?
Actus reus:
When does conduct cross from “mere preparation” to a failed effort to commit crime?
● Hardest cases are incomplete attempts
● How far left of boom are we?
● Did D plan to go through with it? Can’t read minds, so how to prove?
Common Law (CL):
Defendant has done all that is within his power to do, but he has been prevented from
completing crime by intervention from outside
Attempt Tests:
● Physical proximity doctrine
● Dangerous proximity doctrine
● Indispensable element test
● Probable desistance test–Res ipsa loquitur (“the thing speaks for itself”) or
unequivocality test
Physical proximity test:
D’s overt act(s) must:
● be close to amounting to the commission of the crime or
● tend directly toward the completed crime or
● amount to the start of the commission of the crime
● Is man with gun at theater guilty of attempted murder under this test?
Dangerous Proximity Doctrine
● Same as physical proximity and the case for attempt is stronger:
● as the gravity and probability of the offense increases and–as the Defendant’s act gets
nearer to the crime
Indispensable Element Test
● Variation of proximity tests that emphasizes any required aspect of the crime over which
the defendant has not yet acquired control
● Absence of an indispensable aspect will tend to show no attempt
● e.g., if you need a flammable material to start a fire to commit arson, then D’s lack of this
“indispensable element” tends to show that he has not attempted to commit arson
Probable Desistance Test
Conduct is attempt if, in the ordinary course of events, without interruption from an outside
source, it will result in the crime intended
Res Ipsa Loquitur Test
•AKA Unequivocality Test
● An attempt is committed when the actor’s conduct shows a intent to commit the crime
Goals (PP)
● Want to be able to charge attempt without waiting for D to commit completed crime and
cause harm
● But also want to avoid criminalizing thought and innocent behavior
Defenses to attempt:
● Impossibility
● Abandonment/Renunciation
● If is legally impossible to commit the underlying crime, then attempt is not a crime
If it is factually impossible to commit the underlying crime, then attempt can still
be a crime•Many states have abolished the distinction in favor of other tests
Legally V factual?
A. Legal Impossibility
● Valid defense
● D thought his conduct was illegal, but it is not
● Can’t be charged with something that is not a crime; no crime, no charge
for attempt
● Examples–I thought I was hunting out of season, but it actually is hunting
season or–I thought I was committing statutory rape by having sex with
16-yr-old, but age of consent is 15
● Would violate ​Legality Principle t​ o convict someone of a crime of which he
has not had fair notice
B. Factual Impossibility
● No defense
● D intends to commit a crime, but fails because of an attendant
circumstance unknown to him or beyond his control
● e.g., I fire a gun intending to kill, but gun is unloaded
● Most sting operations – buy fake drugs, fake weapons
● Law does not recognize this defense to attempt because D has
demonstrated a culpable mental state
Mistake of fact and law :
● Used to negate mens rea
● I thought my conduct was innocent and I was wrong
● Used as defense to attempt
● I thought my conduct was bad, but:
for factual impossibility, attendant circumstance unknown to me or beyond my control
made it impossible to succeed
● For legal impossibility, the conduct is legal
C. Abandonment/Renunciation
I. ​ M
​ cCloskey
● Majority – D did not advance far enough with his plan to commit attempt
● Concurring – D attempted to escape, but abandoned his plan, so not guilty of attempt
B. Solicitation:
Common Law (CL):
● Actus reus – inviting, requesting, commanding, hiring, encouraging
another person to commit a particular crime
● Mens rea – dual intent:–(1) intent to perform the acts constituting
solicitation and –(2) the specific intent that the other person commit the
● Sometimes referred to as a double inchoate crime
● solicitation is an attempted conspiracy
● Hierarchy: Solicitation < Conspiracy < Attempt < Substantive Offense
A. Merger:
Like attempt, solicitation ​merges​ with the substantive offense​ if the crime is committed
● If A solicits B to commit a crime, and B commits the crime,
● both are guilty of the substantive offense, B as the principal and A as an accomplice
● A is not guilty of solicitation because it merges
● If A solicits B to commit a crime, and B does not commit the crime,
● A is still guilty of solicitation
C. Conspiracy:
● An agreement to commit a crime
● Agreement may be express or implied
● Dual intent:–Intent to enter into the agreement–
● Specific intent that the offense be committed
● Ds can be guilty of conspiracy even if goal is not completed
○ Overt Act
■ Some jurisdictions also require an overt act
■ Overt act need not be an illegal act or an attempt to commit the entire
crime, just some act in furtherance of the conspiracy
■ Shows intent to advance the scheme
■ Overt act could be a phone call, a meeting or other step that furthers the
● Traditionally, conspiracy does not merge with underlying offense
● Ds can be guilty of conspiracy and substantive offense
● Different from attempt and solicitation, which merge with substantive offense if
● Under MPC, conspiracy DOES merge. MPC 1.07(1)(b)
● Some jurisdictions require at least two persons
● Other jurisdictions make it a crime for “a person” to enter into an agreement
● In bilateral jurisdiction, one person cannot enter into a conspiracy with an undercover
agent; in unilateral jurisdiction, he can
● For bilateral conspiracy, must PROVE that conspiracy had two or more people, but need
not CHARGE two or more people
Common law (CL) Conspiracy:
● No overt act req.
● No Merger (charged seperately)
● Bilateral
MPC Conspiracy:
● Overt act req.* * except first and second degree felonies
● Does merge
● Unilateral
Federal law conspiracy:
● Overt act req.
● No merging of charges
● Bilateral
1. Pinkerton
All members of a conspiracy are responsible for substantive crimes of the other members–If the
acts are within the reasonably foreseeable scope of the conspiracy and–If the acts were
committed to help advance the conspiracy
● No requirement that a D agreed or knew that the crime would be committed
2. Swain
● Conspiracy requires:
● intent to enter into agreement and intent to commit the substantive offense
● You cannot conspire to commit an unintentional act (depraved heart, reckless,
felony murder, etc.)
● Just like ​Gentry​ – cannot attempt an unintended consequence
Conspiracy under MPC:
MPC 5.03
● Requires overt act•Merger
● 1.07(1)(b)
● Unilateral
● No Pinkerton liability
Statute of limitations- Conspiracy:
● Period of limitations is calculated from last overt act of conspiracy, but charges may
include full duration of conspiracy
● SOL: 5 years
● Ex.Conspiracy that began in 2010 and continued until 2014
● Conspiracy could be charged in 2019, including all overt acts back to 2010
● Even though substantive offenses occurring before 2014 would be barred because they
are older than 5 years
● Conspiracy may be brought in any jurisdiction where any act in furtherance of the
conspiracy occurred
● Could be a drug conspiracy that starts at the southwest border in Arizona and ends up in
Ann Arbor; could be charged here, there or anywhere in between
● Hearsay rule generally precludes testimony about out-of-court statements as unreliable
● Co-conspirators statements that would otherwise be hearsay are admissible if they
occurred during and in furtherance of the conspiracy
● Kilgore
● Foster
Scope on Conspiracy:
● Co-conspirators need not know each member of conspiracy
● Co-conspirators need not know every detail of agreement
● But each member must knowingly enter into same agreement
● Must show statement was made by co-conspirator during and in furtherance of
● Benton and Kilgore were not co-conspirators.​
Nature of scheme makes it likely that members can infer the existence of the other members,
even if they do not know each other
Wheel/Hub & Spoke Conspiracy
● Conspiracy​ if community of interest, e.g., each gets paid if goal successful
● If community of interest, such as each gets paid for success of others, then conspiracy
-in separate fraud scheme with each, no conspiracy
Requirement is that all participants entered into same agreement, even if they do not
know all of the other participants
Multi-Object Conspiracy
● One conspiracy may be an agreement to violate several statutes
● Volkswagen emissions conspiracy ● Agreement to commit:
● Fraud against United States (EPA standards)
● Wire fraud (submitting false certifications)
● Customs fraud (lying to Customs officials that goods complied with U.S. law)
Same agreement-> same conspiracy (MPC 5.03(3))
If different agreements, charge as two counts of conspiracy
Wharton’s Rule –Third-Party Exception
Legislative Exemption Rule
Whartons rule:
● Conspiracy to commit a crime cannot be charged if the substantive crime, by its very
nature, requires more than one person to commit it
● •e.g., adultery, bigamy, dueling•
● This is an exception to the general CL principle that a conspiracy and the substantive
offense are separate crimes.
Third-Party Exception
● Exception to Wharton’s Rule•(Exception to the exception; negates the defense)
Where the crime requires two people to commit it (adultery), if a third person is involved,
Wharton’s Rule does not apply, and a conspiracy may be charged
● e.g, three people conspire to commit crime of adultery
Legislative Exemption Rule
Victim of crime cannot be charged with the substantive offense or with conspiring to commit it
● If victim is the only other party to the agreement, then defendant cannot be guilty of
conspiracy in bilateral jurisdiction because he had no one to conspire with
● Ex: Sex trafficking of minors, Providing obscene material to minors
Withdrawal Common law (CL)
Withdrawal must occur ​before completion of crime​ of conspiracy
● An affirmative act communicating to co-conspirators D’s repudiation of the conspiracy
● If withdrawal is timely, then it is a defense to conspiracy
● Once conspiracy is complete, it is too late for withdrawal to serve as defense to
conspiracy charge
Common Law(CL)​ –No overt act requirement; conspiracy is complete upon agreement–After
agreement is made, withdrawal is no defense
So what good is withdrawal?
Even if it is too late to avoid liability for conspiracy, cuts off liability for that D for subsequent acts
of co-defendants under ​Pinkerton​ and –stops clock as to that D for statute of limitations
MPC recognizes
● Different than withdrawal
● Does not exist under common law or federal law
● Comes after conspiracy is complete (agreement and overt act)
D. ​Accomplice Liability
A defendant is responsible for crimes that he commits himself OR that he assists in
committing•Duel intent – to assist in the crime and that the crime be committed
1. Accomplice:
One who solicits, encourages or assists another in the commission of a crime
One is guilty of an offense if:
● he commits the offense or–
● if he solicits, encourages or assists another in the commission of the offense
Accomplice is guilty of the substantive offense, even though his role is often less
culpable than primary perpetrator
An accomplice is NOT guilty of a separate crime of aiding and abetting
e.g., one who cases a bank, supplies a gun or drives the getaway car is guilty of bank
● Court may address lesser role at sentencing
● Accomplice liability is ​derivative of liability of perpetrator
● Accomplice’s acts make him responsible for acts of principal
Common Law (CL):
● first degree perpetrators: Tom wants to steal laptop
● second-degree abettors: Matt is a look out
● before the fact: Lexi cased the place
● after the fact: Nick hid him after
Principle in second degree can be convicted even if first degree principle is not. Can be
convicted of higher or lower offense than first principle.
Accesories cannot be convicted if principle is not. Cannot be convicted of higher offense unless
it is murder.
Why? (PP)
Limit the number of people with minor role subject to harsh consequences of death penalty for
any felony conviction at common law
Actus Reus
● Mere presence is not enough to be guilty
● Must provide some assistance, no matter how slight
● Need not prove that D’s assistance was a but-for cause of crime, just that he helped in
some way
Mens Rea
Common law(CL) - Duel intent:
● Intent to engage in the conduct that assists the primary party in committing the offense
● Intent that the primary party commit the offense
● e.g., for bank robbery, intent to hand P (Principal Defendant) the gun and intent that P
use it to rob a bank
Knowledge vs Purpose
Knowledge that P is committing the crime is not enough at CL for accomplice liability
● Must show D’s purpose or intent to help P commit the crime
● Language of statutes will govern
Attempt to aid
● MPC includes attempt to aid as an actus reus for accomplice liability
● Common law (CL) requires actual aid, attempt not enough
Result Crimes:
Read 2.06(3) and (4) together
2.06(4) addresses mens rea for the result
Natural and Probable Consequences Doctrine:
Common law rule (CL)
● If D is accomplice to P in commission of crime, D can be convicted of a secondary crime
committed by P if it was a reasonably foreseeable consequence of D’s participation in
the primary crime
● No further actus reus or mens rea by D beyond the first crime is necessary
● Objective standard
(1) Did Principal commit crime?
(2) Was D an accomplice in the crime?
(3) Did Principal commit another crime in the course of committing the first crime?
(4) If so, was second crime a reasonably foreseeable consequence of original crime?
MPC 2.06(4)•​Different from natural and probable consequences doctrine - requires mens
rea for second crime.
Common law – If no crime is committed by principal, then no accomplice liability
● D was also not liable for attempt as a principal because he never intended to
possess the drugs, only to provide the money
● Could charge another crime, depending on facts and law, such as attempt to
finance a drug transaction or attempt to possess drugs
Innocent Agent Doctrine
Using an innocent or unwitting person as an instrument to commit a crime
● This is a theory of direct liability, NOT a theory of accomplice liability
Common law(CL) –solicitation, attempt, substantive offense merge because solicitation and
attempt are lesser-included offenses–conspiracy merges with solicitation, which is a
lesser-included offense, but not with attempt or substantive offense because conspiracy is a
separate crime
MPC – everything merges
MERGER: Same rules for accomplices because accomplice is derivatively liable for crime
committed by principal
Under MPC overt act requirment for everything under 1st and second degree felonies:
● Third degree felonies (e.g., theft)
Misdemeanors (e.g., simple assault)
Petty misdemeanors (e.g., criminal mischief resulting in loss of less than
$25)•Violations (e.g., regulatory offenses)
Policy goal (PP):
of making it easier to prosecute a conspiracy to commit a more serious crime by omitting the
overt act requirement.
Accomplice Liability – If Principal Acquitted
Principle convicted:
● accomplice must have at least the same mens rea as the principal to be charged with
the crime
● But accomplice may sometimes have higher mens rea than principal, and may be
convicted of higher offense
● Defenses may exist as to principal and not as to accomplice•Look to facts and D’s actual
mens rea
Mens Rea
● Accomplice may have same mens rea as principal defendant
● Accomplice may have higher mens rea than principal defendant
● Accomplice may not have lower mens rea than principal defendant because then he did
not have ​dual intent ​– into to assist and intent to commit the offense charged