Kreager FA19
Justifications for Punishment
Utilitarianism: forward-looking, justified because it benefits society overall, maximize welfare
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Deterrence: general- aimed to decentivize future criminal conduct for the community of
potential offenders; specific- aimed at decentivizing future criminal conduct by the punished
offender
Incapacitation: prevents the criminal from committing further crime while incarcerated
Rehabilitation: justifies punishment as reformatory (psychiatric care, drug/alcohol treatment,
vocational training)
Requires that punishment only be as harsh as necessary to achieve objectives; D’s suffering
must be productive; anything beyond that is unjustifiable
Retributive: backward-looking; punishment is justified because offenders deserve it because of
the harm caused by their offense
• Offender has gotten an unfair benefit by the offense; punishment is necessary to return to
moral equilibrium; sanction is proportional to the moral blameworthiness of the offense
Positive retributivism: society must punish the blameworthy
Negative/limiting retributivism: retribution sets a minimum and maximum for just punishment
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Mixed Approach
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The weaknesses of each school invite a mixed approach
Hart: punishment should be viewed as utilitarian, but limited by retributivism; i.e. should seek to
enhance social welfare, but cannot punish innocents or punish a guilty person beyond the
bounds of proportionality; punishment only if doing so would produce a world with less crime
Cases
Regina v. Dudley: men stranded on lifeboat eat the smallest boy to avoid starvation; survivors later
rescued; court affirms guilty verdict, not allowing a defense of necessity
• From a retributivist perspective, punishment is necessary because killing is wrong; from a
utilitarian perspective, punishment is may not be necessary because the men will never be
in this situation again (no specific deterrence) but may be necessary to reduce future
incidents of this sort (if general deterrence is possible)
United States v. Madoff: massive Ponzi scheme, old man sentenced to 150 years; symbolic (retributive)
and general deterrence (utilitarian) purposes
United States v. Jackson: robbed a bank 30 minutes after being released from prison; sentenced to life
without parole; possible incapacitation (utilitarian) justification?
United States v. Gementera: mailbox theft; sandwich board punishment upheld within the statutory
language of the Sentencing Reform Act (18 USC §3553)
People v. Du: Korean shop owner kills young black shopper, history of shoplifting; convicted of voluntary
manslaughter, minimal sentence (probation, no jail time)
• Arguments for leniency: lack of criminal sophistication (which way does this cut??);
unlikely that specific deterrence is necessary
• Arguments against leniency: defendant was wrong to kill shopper; sends a message to
society that this type of behavior is okay (need for general deterrence)
Sentencing
•
The Sentencing Reform Act (18 USC §3553) grants broad discretion; court can impose any
punishment so long as it:
o (1) is reasonably related to the nature and circumstance of the offense and the history
and characteristics of the defendant
Kreager FA19
o
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(2) involves no greater deprivation of liberty than is reasonably necessary to achieve the
goals of punishment
Model Penal Code aims 1.02(2): (1) to give fair warning of the nature of criminal conduct (legality);
(2) safeguard from punishment conduct that is without fault (culpability); (3) differentiated on
reasonable grounds between serious and minor offenses (proportionality)
Competing policy concerns raised by sentencing discretion: individualize a defendant’s maximum
sentencing (fairness through discretion) v. disparate treatment of minority defendants (abuse of
discretion)
What to Punish
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Cannibalism case: two adults decide for one to consensually eat the other; the court holds life
imprisonment for murder (consent doesn’t matter)
Commonwealth v. Mochan: lewd phone calls; D contends he did not violate any criminal code;
court held that his actions constituted an offense because there was public harm; the dissent
feared that the majority is overstepping its judicial power by placing itself in the place of the
legislature and criminalizing behavior
MPC Purposes of Punishment (§1.02)
• Governing definition of punishments
o To prevent conduct that causes or threatens to cause harm
o To safeguard conduct that is without fault
o To give fair warning
o To differentiate between minor and serious offenses
• Governing sentencing
o Prevent crime
o Promote rehabilitation
o Safeguard offenders from excessive, arbitrary or disproportionate punishment
o To give fair warning
Elements of Just Punishment
Statutory Interpretation
• Question: Is there no room for judicial construction or is the statute unclear and ambiguous?
o No room→ plain meaning
o
Plain meaning rule: when the intention of the legislature is so apparent from the
face of the statute that there can be no question as to its meaning
Unclear and ambiguous→ court must ascertain the intent of the legislature
Constitutionality is presumed
Intrinsic: derive meaning from within the internal structure of the statute’s text
and the conventional meanings of words; how words interact with the rest of
the statute
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Noscitur a sociis: the meaning of a word may be known from
accompanying words
Ejusdem generis: when general words follow specific words in a statute,
the general words are construed to embrace only objects similar in
nature to those objects enumerated by the preceding specific words
Kreager FA19
Extrinsic: words derive their meaning from the background of the text,
legislative history, related statutes
Omissions can have meaning
Rule of Lenity: tie goes in favor of defendant if multiple interpretations exist
•
MPC does not use the rule of lenity
Cases
• McBoyle v. United States: (example of an omission) knowingly transporting stolen airplane from
•
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IL to OK; court asks whether an airplane is a “motor vehicle”; court holds no because the
legislature would have included airplanes in the list in the National Motor Vehicle Theft Act,
airplane is not included under statute’s plain meaning
Yates v. United States: (good example of using tools of interpretation) releasing undersized fish;
prosecuted under statute that protects against evidence tampering; court asks whether a fish is
a tangible object; court holds that under the statute, tangible objects are those used to preserve
information
o Legislative intent was to prevent another Enron fraud issue
Keeler v. Superior Court: ex-husband kicks victim’s stomach, kills 35-week fetus; court asks
whether a fetus is a human being under the law; holds that it is not
o Jurisdictional argument: the power to define a criminal act is vested in the legislature,
not the courts
o Constitutional argument: need to give fair warning to citizens what is criminal; prevent
ex post facto criminalization
Legality Principle
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Nulla poena sine lege: no punishment without law
o Prohibits retroactive criminal lawmaking
Three corollaries:
o (1) criminal statutes should be understandable to reasonable, law abiding persons
Fair notice; i.e. permitting persons to rely on a statute’s meaning
• Rooted in the constitutional requirement of due process and the
jurisdictional requirement of separation of powers (i.e. a court can
interpret a statute so long as its interpretation is not unexpected and
indefensible
(ex) Keeler (a fetus is not a human being), McBoyle (an airplane is not a motor
vehicle)
o (2) Criminal statutes should be crafted so as not to delegate basic policy decisions to
police, judges, and juries for resolution on an ad hoc, subjective basis
Limit discretion
Vagueness:
• On its face: one cannot tell whether the statute covers given conduct or
not
o Chicago v. Morales: incredibly broad anti-loitering statute;
effect of giving absolute discretion to police officer if he held a
reasonable belief that a gang member was present; court
invalidated the statute because it facilitated arbitrary and
discriminatory enforcement and fails to give notice of the
prohibited conduct
Kreager FA19
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o
As applied: a statute does not have a clear meaning in the context of a
particular case
(3) Judicial interpretation of ambiguous statutes should be biased in favor of the
accused (i.e. rule of lenity (MPC doesn’t recognize))
(ex) Yates: a fish is not a tangible object within the statute
Proportionality Principle
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Ensures an offender receives punishment appropriate to the crime he has committee (linked to
retributivism) → lex talionis
o Over-punishment punishes innocence
o Under-punishment encourages/fails to deter criminal behavior
Eighth Amendment places limits on punishment by prohibiting cruel and unusual punishment
o Scalia and Rehnquist interpret the Eighth Amendment to have no proportionality req.
Ordinal constraint: harsher punishments for worst crimes, incentivizing criminals to commit
lesser crimes
Terms of years: must ask whether the sentence is grossly disproportionate given societal norms
o Ewing v. California: stolen golf clubs; sentenced to 25 years to life under the three
strikes rule; court finds that the three strikes rule is constitutional; court believed that
the legislature was reasonable in trying to limit recidivism through three strikes
o Graham v. Florida: teen arrested for home invasion; LWOP found unconstitutional for
minors because it will not serve any goal of punishment (lesser culpability of minors →
decreased desert of punishment and efficacy of deterrence)
An example of a categorical approach (treats defendant as part of a group);
non-categorical approach looks at the individual defendant and specific facts of
the case
Elements of a Crime
•
The prosecution must prove each element beyond a reasonable doubt
o Actus Reus
o Mens Rea (with regards to each element)
o Attendant circumstances (i.e. other facts about the circumstances in which a crime was
committed that is out of the actor’s control)
MPC § 1.13 (9) General Definitions
“elements of the offense” means (i) conduct, (ii) attendant circumstances, (iii) result of conduct
Actus Reus
• Actus reus is the physical or external portion of the crime; what we would see if we watched a
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video tape of the crime; culpable conduct
o A (1) voluntary act (2) that causes (3) social harm
We do not punish thoughts alone
MPC §1.13(2) an act is a bodily movement whether voluntary or involuntary
MPC §2.01(1) requirement of voluntariness
o Voluntary- possession (under §2.01(4) so long as is knowing), habits
o Involuntary (§2.01(2)- any conduct that is not a product of the effort or determination of
the actor
(ex) reflexes, convulsions, unconscious acts, sleep, hypnosis
Kreager FA19
MPC § 2.01 Voluntary Act Definitons
(1) guilty if conduct includes voluntary act or omission to perform act of which he’s perfectly capable
(2) not voluntary acts: (a) reflex, (b) bodily movement during unconsciousness, (c) conduct during
hypnosis,
(d) movement that’s not product of effort; conscious or habitual
(3) liability based on omission if: (a) law makes omission sufficient in its definition of the crime, (b) duty to
perform is imposed by contracts/tort/civil law
(4) possession satisfies actus reus when accused is aware of her control of the object for enough time to
have been able to terminate possession
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Time framing: prosecution doesn’t need to show that every act or even D’s last act was
voluntary; it is sufficient to show that D’s conduct included a voluntary act
o At what point in time do we start examining D’s conduct to see if it included a voluntary
act?
Broadly → easier for prosecution to prove voluntary
Narrowly→ easier for defendant to prove involuntary
o Example: man prone to seizures decides to operate a car, kills people
Broadly: knowing risks of operation→ voluntary act→guilty
Narrowly: seizures are involuntary→ innocent
Cases
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Martin v. State: drunk man forcibly taken from his home by police; court overturns conviction
because he did not voluntarily “appear” in public; yes, he chose to drink but violating the statute
was not a foreseeable consequence of drinking at home
People v. Newton: traffic stop black panther is shot and black out, shoots cop; found innocent
o Could have been voluntary using time framing; he voluntarily left home knowing he
could have an encounter with the police
Omissions: failure to perform an act of which one is physically capable
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Although there are some exceptions, a person generally has no duty under the criminal law to
prevent harm to another
Exceptions: common law duty to act: “commission by omission” (MPC is the same as the
common law on omissions)
When there is a duty to act (assuming that an actor is physically capable)
• Status relationship obligations: a duty is established when a person stands in
a special status in relation to the imperiled; i.e. parent-minor child, spousespouse, employer-employee, host-guest
• Contractual obligations: implied or express i.e. medical professionals,
babysitter to children, lifeguard
• Omissions following an act: in some circumstances, an act, followed by an
omission, will result in liability for the omission, even when there would be no
liability for the original act
o Creation of Risk: common law duty to aid the injured/endangered
party, also applies to property
If the imperiling is: intentional (duty to aid), accidental
(depends), bystander (no duty, generally)
o Voluntary assistance: duty to continue to provide aid if a subsequent
omission would put the victim in a worse position than if the actor
had not initiated help
Kreager FA19
Good Samaritan laws: criminalize (usually as a misdemeanor) not coming to the aid
of a stranger in peril under specific circumstances
Cases
• Jones v. United States: child neglect; D not guilty because the child’s mom was present
•
Pope v. State: schizophrenic mom beat child to death, D watched; not guilty because the special
relationship that would give D an affirmative duty to aid did not exist
Medical Omissions: Barber v. Superior Court, no legal duty to provide medical care if the
patient has no meaningful chance of improvement; withholding treatment=omission;
administering lethal drugs=act
Mens Rea
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Proving mens rea: a person is presumed to intend the natural consequences of an act
Specific vs. general intent crimes
o Specific intent crimes: crimes of purpose/knowledge
o General intent crimes: crimes of recklessness/negligence
Transferred intent: attributing liability because accidently kills/injures a different person than
intended
Strict liability crimes: no need to prove mens rea (i.e. not an element of the offense)
Common Law Mens Rea Cases
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Regina v. Cunningham: steals gas meter to sell, accidently poisons mother-in-law; court holds
that the correct definition of malice is foresight of consequences and choosing to act in spite of
those consequences
Regina v. Faulkner: lights match in the rum cellar of ship; no malice=no conviction
State v. Hazelwood: captain of an oil tanker runs aground and spills 11 million gallons; court
defines criminal negligence as failing to perceive a substantial and unjustifiable risk
MPC and Mens Rea
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For every material element of a crime, there must be a required mental state
§ 1.13(9)-(10): Material Elements and the mens rea required for each
§2.02: General Requirements of Culpability
o A person is not guilty of an offense unless he acted purposefully, knowingly, recklessly,
or negligently, as the law may require, with respect to each material element of the
offense (except as provided for crimes of absolute liability)
Elonis v. United States: posted violent rap songs online, ex-wife and others felt threatened; court
held that D must be aware (i.e. subjective awareness) of the threat to be convicted
(2)(a) Purposefully:
(1) If the element involves the nature of his conduct or a result thereof,
it is his conscious object to engage in conduct of that nature or to
cause such a result, AND
(2) if the element involves the attendant circumstances, he is aware
of the existence of such circumstances or he believes or hopes that they
exist
Kreager FA19
(2)(b) Knowingly:
(1) if the element involves the nature of his conduct or the attendant
circumstances, he is aware that his conduct is of that nature or that
circumstances exist, AND
(2) if the element involves a result of his conduct, he is aware that it is
practically certain that his conduct will cause such a result
Subjective: must ask, did the defendant know?
Willful blindness is not an excuse (see Jewell)
(2)(c) Recklessly:
(1) When he consciously disregards a substantial and unjustifiable
risk that the material element exists or will result from his conduct
(2) The risk must be of such a nature and degree that the defendant’s
disregard involves a gross deviation from the standard of conduct
that a law-abiding person would observe in the actor’s situation
Subjective: must ask, did the defendant know the risk?
Objective: must ask, was the defendant’s risk calculation reasonable?
(2)(d) Negligently:
(1) When he should be aware of a substantial and unjustifiable risk
that the material element exists or will result from his conduct
(2) The risk must be of such a nature and degree that the defendant’s
failure to perceive it involves a gross deviation from the standard of
care that a reasonable person would observe in the actor’s situation
Objective: must ask, would a reasonable person in the actor’s situation
perceive the risk?
§2.02(3): when the statute does prescribe a required mental state, the element is
satisfied if the defendant acts at least recklessly
§2.02(4): unless it is clear in the statute, a mental state provided at the beginning of
the statute will apply to everything that follows
§2.02(5): if a mental state is negligence, it can be satisfied with purpose, knowledge,
or recklessness
§2.02(7): when knowledge of the existence of particular fact is an element,
knowledge is established if a person is aware of a high probability of its existence
§2.02(8): a requirement that an offense be committed willfully is satisfied if a
person acts knowingly
§2.02(9): neither knowledge, recklessness, nor negligence as to whether conduct
constitutes an offense or as to the existence of the law is an element of such
offense, unless the definition of the offense says so (mistake of fact is not a defense
unless the statute allows it to be a defense)
MPC: difference between purpose and knowledge
• with knowledge, know that the harm is practically certain to occur although you may not consciously seek
to cause it; example: man who wishes to murder wife on airplane sets a bomb there, purposefully killing
her, but knowingly killing the other passengers
MPC: difference between purpose and motive
• Purpose is the intent, and motive is the why (relevant to defense/sentencing, but not liability)
o
Cheat sheet:
Kreager FA19
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Distinctions between the mental states:
• Recklessness
to consciously disregard a substantial risk
• Knowingly aware that the harm is practically certain
• Purposefully to have the result as a conscious object
Willful ignorance:
o United States v. Jewell: driver carrier marijuana in a secret compartment of which he
was aware; court held that willful ignorance constitutes knowledge
o Giovanetti: landlord willful ignorance case
Criminal negligence: failure to perceive an unjustifiable risk that a result will occur; deviation from
standard of care that a reasonable person would observe
Mistake of Fact
• Common law approach:
o Strict liability crimes: mistake of fact doesn’t negate criminal responsibility
o Mistake of fact is a defense to specific intent crimes if the mistake negates the requisite
mens rea
o Morissette: bomb-casings; theft not SL bc intent to deprive forever negated by mistake
o Otherwise, mistake of fact is an affirmative defense to general intent crimes if it is
reasonable and honest
Moral Wrong Approach: you are on notice when you do something morally wrong
• Regina v. Prince: defendant took an unmarried girl under the age of 16 from
her parents honestly believing she was 18
Lesser Crime Approach: once someone commits one wrong, can go after them for
worse wrong that happened even if they didn’t know (MPC rejects § 2.04(2))
• Rationale: defendant ran the risk that his acts would produce the greater
crime
•
MPC §2.04: Ignorance or mistake:
o (1): Ignorance or mistake as to a matter of act or law is a defense if:
(a) the ignorance or mistake negates the mens rea required, or
(b) the law provides that the state of mind established by such ignorance or
mistake constitutes a defense.
o (2): Although ignorance or mistake would otherwise afford a defense to the offense
charged, the defense is not available if the defendant would be guilty of another
offense had the situation been as he supposed
But ignorance/mistake of the defendant shall reduce the degree of the offense
• Example: Defendant has sex with an 11 year old, even though he honestly
and reasonably believed she was 16 years old
convicted of statutory rape
of a 16 year old, not an 11 year old
o §5.05(2) Mitigation: if conduct inherently unlikely to result or culminate in the
commission of a crime then court to enter judgment/impose sentence of a crime of
lower grade/degree or dismiss the prosecution
• Safety valve for crazy conduct (e.g. voodoo dolls as instrument of harm)
Kreager FA19
o Mistake of Fact Defense is rejected:
o
People v. Olsen (1984): 13-year-old mistaken for 16 year old, court rejects mistake of
fact defense because the victim is of tender years and the legislature intended to
protect minors
Garrett v. State: 20-year-old with an IQ of 52 has sex with a 13-year-old but honestly
believes she was over 16-years-old, court rejects defense because the crime is a
strict liability offense
Mistake of Fact Defense is accepted:
B (A Minor): 15-year-old asked 13-year-old to perform oral sex, defendant honestly
thought girl was 14-years-old, court accepts defense because of his honest belief –
no mental state
Mistake of Law
o Mistake of law is a worse defense than mistake of fact; law treats mistakes of law more strictly
o No defense if defendant relied on his own incorrect interpretation of the law
o People v. Marrero: corrections officer possession of handgun – one’s misunderstanding
of a statute is not a valid defense
No defense if defendant relied on incorrect advice from private counsel
Exceptions to the general no-defense rule:
(1) Excused if there is a faulty interpretation of the law by the gov’t
o (2) Fair notice: can’t assume that a citizen is aware of the law’s existence
Lambert v. California (1957): felon can’t be in LA without registering case
o (3) Ignorance or mistake that negates mens rea of an element: (looks like mistake of
fact but actually mistake of a legal element of a crime)
Cheek v. United States (1991): defendant failed to pay income taxes, the court
held that defendant’s belief does not have to be reasonable, just honestly held
(prosecution must prove that he intentionally violated a known legal duty)
MPC and Mistake of Law: §2.02(9): (mistake of law is not a defense unless the statute allows it to be a
defense)
• Other exceptions:
o §2.04(3): belief that conduct does not constitute an offense is a defense when
(a) The statute defining the offense is not known to the actor and has not been
published or otherwise reasonably made available
(b) The actor acts in reasonable reliance upon an official statement of law,
afterward determined to be invalid/erroneous
o
o
Strict Liability Crimes
•
Crimes that by definition, do not contain a mens rea requirement for one or more elements; still
need to prove voluntary act and causation
o There exists a presumption against strict liability
Factors that will overcome this presumption:
The statutory crime is not derived from common law (new regulation)
Evident legislative policy that would be undermined by a mens rea requirement
• Example: wanting to protect a large group of people that would not be able
to protect themselves from this crime, preventing harm
Standard imposed by the statute is reasonable and its expected people will adhere
to it
Conduct is such that the actors are already on notice
Kreager FA19
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Mens rea would be difficult to prove
The penalty for violation is small
A conviction does not harm defendant’s reputation
The statute is regulatory or public welfare based
o Examples: crimes prohibiting manufacture/sale of drugs, bad food
Actus reus: defense of involuntarily action
MPC rejects strict liability crimes (unless statute says otherwise)
o §2.02(1): no conviction may be obtained unless the prosecution proves some form of
culpability regarding each material element of an offense
Exception: §2.05(1): need not apply to offense graded as violations, rather than
crimes
Arguments for strict liability: protecting social interests requires a high standard of care and
attention; administrative efficiency; once we start time framing, it is easy to find a mental state
Arguments against strict liability: imposes sanctions even when there is not
fault/intent/culpability; sanctions can be stigmatizing; no evidence that a higher standard of
care (no augmented deterrence value) results from strict liability
Examples of strict liability:
o Possessing a hand grenade
o Selling Drugs; Balint: D argued he did not know he was selling opium, the court upheld
indictment because proof of knowledge not required by statute; SL is an effective form
of regulation (public policy justification)
o Mislabeling Drugs; Dotterweich: D did not know the drugs were mislabeled, court
upheld the conviction because the statute did not require mens rea
o Speeding; State v. Baker: D was speeding because the cruise control was stuck, the court
upheld the conviction because speeding is a strict liability crime
Examples of no strict liability:
o Larceny; Morissette: used military schrapnel to make art; D thought property was
abandoned, charged for knowingly converting gov’t property, intent needed to convict
o Possessing an unregistered gun; Staples v. United States: D did not know gun was full
auto, the court overturned the conviction because no knowledge
‘Potentially harmful or injurious items’
not a gun, but a grenade
Vicarious Liability
the responsibility of the superior for the acts of their subordinate
• Hesitancy to enforce vicarious liability sentences because of due process concerns
• Effect of various liability is the same as strict liability; not like tort law because of the stigma of a
conviction
o Vicarious liability imputes acts of on person to another without requiring mental states
liability is based on the relationship to another, not mens rea
• State v. Guminga: restaurant owner convicted for service of alcohol to minor by employee;
court reverses charge because no actus reus
Rape
Introduction:
• Common law: general intent crime, sexual penetration of a woman forcibly and against her will
o Traditional rape statutes: gender specific, focus on forcible sexual intercourse achieved
against the will of the female, and without her consent
Immunity for marital rape
Kreager FA19
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•
Rape=intercourse (c) + force (c) + nonconsent (ac)
o Note: rape law reform has moved the law away from requiring a force element
MPC 213
Actus Reus:
• Generally, sexual intercourse constitutes rape if it is committed:
o (1) Forcibly
o (2) By means of certain forms of deception
o (3) While the female is asleep or unconscious
o (4) Upon a female incompetent to give consent (i.e. she is drugged, mentally disabled, too
young)
• Traditional Law: successful prosecution for rape requires proof of Force + Non-consent +
Intercourse
o Typically, the male’s use of force proves both elements of non-consent and force
o Consent: must be voluntary, freely given
Raises mens rea issues for the male because he may honestly believe she wants
intercourse when she does not (mistake with regards to AC)
Voluntary consent may be withdrawn after being given
Non-consent interpreted 2 different ways: (1) mental state; (2) action that gives
permission
• actual consent (subjective state of victim’s mind)
• observer would find consent (objective; related to “consent as a victim’s
act”)
• *presumption of non-consent (e.g., unconsciousness)
Non-consent as words or physical actions that demonstrate lack of consent
• **sometimes seems to make consent the default
• no verbal resistance; verbal resistance alone; verbal resistance plus actions
(makes unwillingness clear); anything but affirmative words/conduct
(passivity, silence, ambivalence)
o Force and resistance:
Extreme force (force likely to cause serious injury or death) element of force is
satisfied
Moderate force no conviction unless it was proven at trial that the female
resisted the male’s unwanted actions and her resistance was overcome by force
• Imposes an affirmative obligation on the female to act
Threat of force in general, the female’s subjective apprehension of serious harm
and some conduct by the male that places her in reasonable apprehension for her
safety are required
Force is necessary for conviction in most states, resistance is sometimes required
Law is trending away from force requirement
o Critiques:
Victims often freeze during the assault, and therefore, are unable to physically resist
Physically resisting rape can be dangerous for the victim
o Cases:
State v. Rusk (1981): Pat gives Rusk a ride home from the bar, Rusk takes her keys,
gives her a ‘look’ and lightly chokes her
Kreager FA19
•
Court: evidence must go to a jury to decide whether the victim’s fear was
“genuine and reasonably grounded”, and if it was, her lack of resistance was
justified
• Here, the coercive environment was enough to satisfy “force”; choking
(threat) and AC (unfamiliar environment=climate of fear)
State v. DiPetrillo: boss used modicum of physical force, digitally penetrated; the
court remanded to decide if force requirement was met
• Distinction between force and coercion
State v Alston: evidence of non-consent was unequivocal; she said she did not want
to but made no effort to push him away; court held that evidence of non-consent
alone was not sufficient for a rape conviction
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•
Reformed Law:
o Force:
Removing the force requirement, but allowing evidence of force (or lack of force) in
establishing whether the victim consented
Broadening the definition of force to include both conduct and attendance
circumstances (i.e. male doing scary things, coercive environment, climate of fear
etc.)
Allowing the act of penetration itself to satisfy the force requirement (see MTS)
Resistance and force:
• Allowing verbal resistance (‘no’) to satisfy resistance requirement
o Consent:
Consent as a state of mind or consent as an action?
• State of mind: subjective mental state of victim
• Action: attendant circumstance
o Words: affirmative consent standard (no = no, yes = yes)
o Physical actions: as reasonably understood by defendant
Defective consent: maturity (see statutory rape), incapacity (see drugs and alcohol),
pressure (see quid pro quo), authority (see doctor/patient)
o Cases:
State in the Interest of MTS (1992): victim (15) testifies she woke up to defendant
(17) penetrating her, defendant testifies it was consensual
• Rape is committed when he has intercourse without securing a voluntary
yes in words or action from the other person (consent must be manifested
objectively); this holding got rid of the force requirement
MC v. Bulgaria: lack of consent should be the defining element and force not
required
Fraud and deception:
o Common law does not recognize rape in cases of fraud-in-the-inducement
It is not rape so long as the victim knew that she was consenting to sexual
intercourse, whether or not the defendant lied about his motives, profession, name,
etc.
Cases:
• People v. Evans (1975): defendant (37) poses as a psychiatrist to seduce
victim (20), the court reverses conviction because there was no forcible
compulsion or threat
o Common law does recognize rape in cases of fraud-in-the-factum (consent is vitiated)
Kreager FA19
It is rape if the female’s is unware that she has consented to the act of sexual
intercourse itself (e.g. a doctor obtains permission patient to insert an instrument,
the instrument is his penis)
Boro v. Superior Court: fake doctor gives sex as “life-saving treatment”; yes, rape bc
victim did not consent to sex, she consented to a medical procedure
Mens Rea:
• Common law: general intent a defendant need not possess an intention that sexual intercourse
be nonconsensual; it is enough that he possessed a state of mind regarding the female’s lack of
consent
o General rule: a person is not guilty of rape if he entertained an honest and reasonable belief
that the female voluntarily consented to intercourse (i.e. the required mental state is
negligence)
Mistake of fact must be reasonable to constitute a defense
o Cases:
Commonwealth v. Sherry (1982): victim (nurse) was held captive in a room and
three men (doctors) raped her, the men believed she consented, the court upholds
convictions because it was unreasonable of the men to think she consented
Commonwealth v. Fischer (1998): defendant thought victim consented based on
prior rough sex, court convicted because mistake of fact is not a defense (under
statute)
MPC and Rape:
• MPC §213.1: Rape
o A male who has sexual intercourse with a female not his wife is guilty of rape if
(1) He compels her to submit by force or by threat of imminent death, serious bodily
injury, extreme pain, or kidnapping, or
(2) He has substantially impaired her power to appraise or control her conduct by
administering without her knowledge, drugs or intoxicants, or
(3) The female is unconscious, or
(4) The female is less than 10-years-old
o Degrees:
First and second degree: rape is a felony of the second degree unless
• (A) The actor inflicts serious bodily injury or
• (B) The victim was not a voluntary social companion of the actor and had
never had sex with him before
Third degree:
• (A) He compels her to submit by any threat that would prevent resistance
by a woman of ordinary resolution, or
• (B) He knows that she suffers from a mental disease or defect which renders
her incapable of appraising the nature of her conduct
• (C) He knows that she is unaware that that a sexual act is being committed
upon her or that she submits because she mistakenly supposes that he is
her husband
• Like the common law because:
o Gender specific
o Affirms the general principle that nonconsensual intercourse with a spouse is not rape
Kreager FA19
Homicide
Overview:
• Common law: murder vs. manslaughter:
o Murder: killing of a human being by another human being with malice aforethought
One kills another with malice if he possesses: (extreme indifference to the value of
human life)
• (1) The intention to kill a human being
• (2) The intention to inflict grievous bodily injury on another
• (3) So-called depraved heart murder
o Extreme recklessness usually when the risk of death to one or
more persons is great and especially if the justification for taking the
risk is weak or non-existent
• (4) The intention to commit a felony during the commission or attempted
commission of which a death results (felony murder)
o Manslaughter: an unlawful killing of a human being by another human being without
malice aforethought
Three types of unlawful killings that constitute manslaughter:
• (1) An intentional killing committed in as sudden heat of passion (adequate
provocation)
• (2) An unintentional killing that is the result of an act, lawful in itself, but
done in an unlawful manner, and without due caution and circumspection
(criminal negligence)
• (3) An unintentional kill that occurs during the commission or attempted
commission of an unlawful act (as long as not a felony)
• Traditional homicide statutes: Pennsylvania Model
o Murder
First degree:
• (1) Willful, deliberate, and premediated killing OR
• (2) A killing that occurs during felony or attempted felony
Second degree: all other murders (intentional killings that aren’t premeditated,
intent to inflict grievous bodily harm killings, depraved heart killings)
• Common Law:
Intentional killing
(premed is obj criterion)
“Premeditation”
Unintentional killing
(awareness of risk is obj criterion)
Felony murder (enumerated)
Murder, 2nd
Degree
Unpremeditated
(Anderson)
Gross R (“depraved heart”) (Malone)
Felony murder (unenumerated)
Manslaughter
Adequate provocation +
Heat of Passion –
Sufficient Cooling Time
Gross N (“wanton/reckless”)
(Welansky)
Murder, 1st
Degree
•
MPC §210.2: Murder
o (1) Criminal homicide constitutes murder when:
Kreager FA19
•
•
(A) It is committed purposefully or knowingly, or
(B) It is committed recklessly under circumstances manifesting extreme
indifference to the value of human life (see depraved heart murder)
• This is presumed if during commission of felony (felony murder)
o (2) Murder: first degree felony
MPC §210.3: Manslaughter
o (1) Criminal homicide constitutes manslaughter when:
(A) It is committed recklessly, or
(B) A homicide that would otherwise be murder is committed under the influence
of extreme mental or emotional disturbance for which there is reasonable
explanation or excuse
• Reasonableness is determined from the viewpoint of a person in the actor’s
situation under the circumstances as he believed them to be (see
provocation)
o (2) Manslaughter: second degree felony
MPC §210.4: Negligent Homicide
o (1) Criminal homicide constitutes negligent homicide when it is committed negligently
o (2) Negligent homicide: third degree felony
•
•
Common Law
Murder
o Intentional
o Reckless
o Felony Murder
Manslaughter
o Voluntary
Heat of Passion
o Involuntary
MisdemeanorManslaughter (not in
MPC)
Crim Neg
•
•
•
MPC
Murder
o Purpose/Knowing
o Reckless w/ Indifference
Manslaughter
o Reckless w/o Indifference
o EED
Negligent Homicide
Intended Killings:
• Proving intent to kill:
o (1) Ordinary people intend the natural and probable consequences of their actions
o (2) The defendant is an ordinary person
o (3) Therefore, he intended the natural and probably consequences of his actions
• Premeditation: if present, first degree murder and if not present, second degree murder (if no other
aggravating factor)
o Premeditation: to think about beforehand, court remain divided on much prior thought is
required
o Carroll Approach: a defendant can premeditate a killing instantaneously because no time is
too short
Commonwealth v. Carroll (1963): abusive, schizophrenic wife and army husband
have an argument that ends with the wife getting shot
Kreager FA19
o
•
Guthrie Approach: there must be some period of time between the formation of the intent
and the actual killing that is long enough for the defendant to reflect
State v. Guthrie (1995): victim snapped a dishtowel that hit the defendant’s nose
and the defendant stabbed the victim in the neck with a knife; there must be time
for premeditation
o Evidence to prove premeditation:
• (1) Facts regarding the defendant’s behavior prior to the killing (planning)
• (2) Facts about the defendant’s prior relationship with the victim (motive)
• (3) Evidence that the manner of killing was so particular and exacting that
the defendant must have intentionally killed according to a preconceived
design
o Policy: why punish more for premeditation?
Retributive: those who plan murders are more blameworthy
Utilitarian: those who plan murders are more dangerous and calculated
o Policy: should we allow the distinction between first/second degree to affect sentencing?
Gives discretion to judge, best situated to align sentencing with culpability based on
circumstance
Provocation: allows for mitigation from murder to voluntary manslaughter
o The common law defense contains four elements:
(1) The actor must have acted in the heat of passion
(2) The passion must have been the result of adequate provocation
• TEST: must inflame the passion of a reasonable man and cause him to act
from passion rather than reason (see Girouard)
• Common law: words alone do not count (see Girouard)
• Traditional circumstances: (see Girouard)
o Extreme assault or battery upon defendant
o Mutual combat
o Defendant’s illegal arrest
o Injury or serious abuse of a close relative of defendant’s
o Sudden discovery of spouse’s adultery
(3) The actor must not have had a reasonable opportunity to cool off
(4) There must be a causal link between the provocation, the passion, and the
homicide
o Provocation defense allowed:
Maher v. People (1862): defendant saw victim and wife enter the woods together,
the court holds the provocation question must be sent to a jury
o Provocation defense not allowed for just words:
Girouard v. States (1991): army wife and husband, court rejects the provocation
defense because just words
o MPC and provocation:
§210.3(1)(b) allows for murder to be downgraded to manslaughter when the
defendant is under the influence of extreme mental or emotional disturbance for
which there is reasonable explanation or excuse
• Reasonableness is determined from the viewpoint of a person in the actor’s
situation under the circumstances as he believed them to be
o Takes into account defendant’s demographics, sex, size, mental
state
Kreager FA19
•
•
o Children: as compared to a reasonable child of that age
People v Casassa (breakup stalker killing) TEST:
o (1) Is the defendant subjectively disturbed?
o (2) Is the defendant’s disturbance objectively reasonable?
MPC allows for some time between the provocation and the killing
Unintended Killings:
• Involuntary manslaughter: recklessness and negligence
o Victim’s negligence has never afforded a defense in criminal law
o Reckless manslaughter: (1) grave danger is apparent and (2) defendant chose to run the
risk instead of altering conduct
Commonwealth v. Welansky (1944): nightclub with locked doors, owner is convicted
of involuntary manslaughter through wanton or reckless conduct
• What must be intended is the conduct, not the harm defendant must
know there’s danger and intentionally disregard the danger
People v. Hall (2000): defendant is skiing at Vail, convicted because actions were a
gross deviation from the standard of care
o Negligent Manslaughter
State v. Williams (WA App. 1971) (17 m/o died after tooth infection)
• Realized early enough to have been able to avoid
•
•
Reckless murder:
Commonwealth v. Malone (1946): Russian poker; kid accidentally shoots friend with
revolver, malice proven through recklessness
United States v. Fleming (1984): drunk driving constituted malice aforethought
Felony murder:
o Old doctrine, originated when all felonies meant death penalty. Doesn’t really make sense
anymore…
o Based on a predicate felony that is “dangerous in itself + likely to cause death” (Regina v.
Serne)
Set a fire, sons died, collected life insurance…
Arson as predicate felony.
o Deter felonies… or deter risky felonies/increases care taken during commission of felonies.
o Issue with culpability.
o MPC Alternative
MPC §210.2(1)(b): Reckless homicide committed/happens under circumstances of
extreme indifference to value of human life… If during a violent felony, there is a
presumption that can be a question of fact for the jury.
• Specific
MPC §1.12(5) allows a defense of lacking the mens rea for felony murder.
• Able to rebut malice – unlike on common law.
o Common Law: Don’t need mens rea.
o Foreseeability of death is not required – just a causal relationship (People v. Stamp)
Victim died of heart attack during robbery.
Vulnerable Victim Rule – Take victims as you find them.
o Misdemeanor-Manslaughter Rule (Common Law only)
Analogous to Felony-Murder.
Kreager FA19
o
Bumps accidental death to involuntary manslaughter.
Restrictions:
Eligible felonies
• Require inherently dangerous felonies.
• Merger Doctrine: Some inherently dangerous felonies don’t count
o Cannot use assault or assaultive felonies as the predicate felony for
F-M (these merge).
Cannot use a felony that is an integral part of or included in
fact within homicide.
Basically, homicide always contains assault.
People v. Chun (CA 2009)
• Azn gang drive by
o Requires an independent felonious purpose + inherently
dangerous to not merge.
Limit by grading
• Some specific felonies 1st-degree Murder (by Statute)
• Others 2nd-degree Murder
Permit affirmative defenses
Require homicidal mens rea
Killings Not in Furtherance of the Felony:
Lethal acts after the felony.
Lethal acts unrelated to the felony.
Lethal acts by person resisting the felony (victims, police, third-parties).
When co-felons are killed:
• Felony-murder does not apply if an adversary to the crime kills
• State v. Canola (1977): owner of jewelry store kills co-felon, not guilty of
felony murder because the killing was not in furtherance of the felony
The Death Penalty:
• Constitutional limitations on death penalty
o Procedural due process (5A and 14A): there is no workable standard for juries to use to
decide whether death penalty should be used
o Cruel and unusual punishment (8A): the death penalty is applied so wantonly and freakishly
(like being struck by lightening)
• Timeline of cases:
o Furman v. Georgia: death penalties are too randomly imposed and therefore, violate 8A
o Gregg v. Georgia (1976): court holds death penalty does not invariably violate the
constitution
o McClesky v. Kemp (1987): black defendant kills white police officer and receives death
penalty
Study points out how much more likely a black defendant is to get convicted and
sentenced to the death penalty
Court: the study does not provide sufficient evidence to violate 8A
• Categorical bans on death penalty:
o Atkins v. Virginia (2002): court holds death penalty no good for intellectually disabled
defendants
Kreager FA19
o
o
Reasoning: (1) states are moving in this direction, (2) doesn’t serve deterrence and
retributive ends, (3) intellectually disabled defendants are less able to make a
persuasive showing of mitigation
Roper v. Simmons: the court held that the death penalty is categorically disproportionate for
defendants who were juveniles at the time of the offense
Kennedy: no more death penalty for child rape (only murder and crimes against state)
The Significance of the Resulting Harm
Causation:
• Causation is an ingredient of a crime’s actus reus the defendant’s voluntary act must result in the
social harm
o Causation is an element (although not material), that must be proven beyond a reasonable
doubt
• Common Law:
o Actual cause: factual cause but-for
State v. Muro: mother failed to call for help after husband beat daughter,
prosecution didn’t prove mother’s failure was the but for cause of death
o Proximate cause: legal cause actor’s conduct must have a close relationship to the
resulting harm
Foreseeability: defendant liable if the intervening cause was reasonably
foreseeable, excluding extraordinary results (which is determined objectively)
• Not foreseeable to the person, foreseeable in general
• When the intervening cause is responsive or dependent on defendant’s
action, it is usually foreseeable and defendant remains liable
• People v. Acosta: Helicopter crash during car chase was reasonably
foreseeable
Substantial Factor: defendant’s conduct must have been a sufficiently direct cause
of injury
• People v. Arzon: defendant lights couch on fire which kills fireman, court
affirms conviction because defendant did the but for cause and proximate
cause
o Defendant does not need to be the sole cause, just a sufficiently
direct cause to a foreseeable result
• People v. Warner Lambert Co: chewing-gum factory explosion, court
reverses conviction because the trigger of the explosion was unforeseeable
o Vulnerable victim rule: defendant takes victim as he finds him
o Transferred intent: if defendant kills someone instead of intended victim, defendant still
liable
o Subsequent Human Intervention:
Must ask: was the human intervention voluntarily or was the human acting as a
machine?
Intervening factor is the free, deliberate, and informed action of a human
defendant is not liable
• People v. Campbell (1983): defendant gives friend a gun, encourages him to
kill himself, court reverses murder conviction because victim acted
voluntarily
Kreager FA19
o
•
JJ argument: defendant had a duty to intervene once the victim was
given the gun, given the circumstances (drunk, depressed, suicidal)
• People v. Kevorkian (1994): death machine, murder requires defendant to
participate in final overt act
o MPC §210.5: Causing or Aiding Suicide:
(1) A person can only be convicted of criminal homicide for
causing another to commit suicide only if he purposefully
causes such suicide by force, duress, or deception
(2) Aiding or soliciting suicide: felony of second degree if
actor’s purposefully causes suicide or attempted suicide
• Root (1961): drag racing, victim swerves to pass defendant and hits
oncoming traffic, court reverses conviction because it was victim’s own
recklessness that was the proximate cause of his death
Intervening factor is of natural force or the actions of a person who is not free (or is
being used as an agent) defendant is liable
• Stephenson (1932): KKK poison suicide, upholds murder conviction because
defendant put victim in irresponsible situation that rendered her no longer
free
o Expands the timeline of actions imposed on victim to expand
defendant’s liability
• Kern (1989): defendant chasing after black man who is hit by a car, the court
holds defendant guilty because victim’s actions were involuntary
• State v. McFadden: drag racing, kills 6 year old, 2 people’s acts can work
concurrently to create proximate cause
o Declines to follow Root, policy argument state’s desire to stop
drag racing
• Commonwealth v. Atencio (1963): Russian roulette between defendant and
victim, court upholds conviction because defendants had a duty not to
cooperate/play the game and they failed to stop the victim
o Difference between RR and drag racing: luck vs. skill
o Concurrence of events: mens rea and actus reus must align in order for defendant to be
guilty
o Dangerous forces that come to rest: when defendant’s active force has come to rest in a
position of apparent safety, no more liability
MPC §2.03
o But-for/actual causation as baseline.
Insufficient.
o Proximate causation.
MPC adds additional requirements per the relevant code…
Attempt:
• Introduction:
o Attempts require two intents:
(1) The actor must intentionally commit the acts that constitute the actus reus of an
attempt
(2) The actor must perform these acts with the specific intention of committing the
target crime
Kreager FA19
•
•
•
• Mens rea of purpose is required to find liability for attempt
o Justification:
Retributive: those convicted of attempt are morally culpable and endanger society,
causing social harm
Utilitarian: deters criminals from trying to commit the offense again, incapacitates
dangerous criminals, allows law enforcement to prevent harm
o MPC §5.01: Criminal Attempt
(1) A person is guilty of an attempt to commit a crime if, acting with the kind of
culpability otherwise required for commission of the crime he:
• A) a completed attempt but there are elements of the crime missing
• B) a completed attempt but the result didn’t happen
• C) an incomplete attempt
MPC is purposefully vague on attempt
o Punishing attempts:
MPC: attempts are punished the same way as are substantive crimes (except first
degree felonies, which move down a grade)
• Rationale: punishment is based on blameworthiness not on luck, reduced
punishment from 1st degree to 2nd incentivizes defendants to desist
Common law:
• Majority: an attempt to commit a felony is considered a less serious crime,
and therefore, is punished less severely, than the substantive offense
o Rationale: incentivizes defendant to abandon/desist, completed
crimes are worse for society than attempts so they deserve more
condemnation
• Minority: attempt is graded and punished at the same level as a successful
offense
Attempt and Mens Rea: purpose or belief is required to find liability for attempt
o Cases:
Smallwood: HIV positive rapes three victims, charged with attempted murder,
defendant did not possess intent to kill and therefore, no evidence of purpose
Preparation vs. Attempt: actus reus requirement
o Three main concerns in placing the line of attempt:
(1) The need to be sure of defendant’s intentions
(2) The desire to allow the defendant to be able to abandon the crime
(3) The need to ensure the police can intervene in time to stop the crime
Tests: Where do we draw the line?
Dangerous proximity test: a person is guilty of an attempt when her conduct is in
dangerous proximity to success (narrower liability)
• Takes into account three factors: (1) the nearness of the danger, (2) the
greatness of the harm, (3) the degree of apprehension felt
• Case:
o People v. Rizzo (1927): tried to rob potential victim, but could not
find him, court finds not guilty because did not cross the line (it was
not their arrest that kept them from committing the crime)
Substantial step test: MPC §5.01 approach, defendant must have taken a
substantial step that strongly corroborates criminal intent to constitute a crime
Kreager FA19
•
•
•
•
Brings the attempt line closer to the mental state end of the continuum
broadens scope of liability
• Yes, substantial step:
o Jackson: bank robbers go to bank to rob, decide not to, return, then
arrested, the court holds guilty b/c actions strongly corroborate
criminal purpose
Equivocality test: an act does not constitute an attempt until the act, standing
alone, unambiguously manifests criminal intent
• McQuirter (1953): black man allegedly follows white woman down the
street, police arrest him for attempt to commit assault/rape, jury gets to
decide intent
MPC v Common Law on Attempt
o MPC makes easier because substantial step can be much farther away from completed
offense; trying to better be able to prevent crime before it happens
Mere preparation is not an attempt, need to give people room to abandon**
Defenses to attempt:
o Abandonment/Renunciation defense:
MPC §5.01(4): complete and voluntary renunciation of criminal purpose
• Renunciation is NOT voluntary if it is motivated by circumstances
Abandonment is not present if:
• actor is motivated by unexpected resistance,
• absence of a factor essential to the crime completion
• circumstances that increase likelihood of arrest
• postpones activity
o Impossibility: the actor has the requisite mens rea and has committed the actus reus, but
the desired outcome is predestined to fail because of an impossibility
Factual impossibility: fails to commit crime b/c attendant circumstance unknown
to her or beyond her control NOT A DEFENSE
• Misfire of a gun
• Pickpocket attempts to pick A’s pocket but there is no money in A’s pocket
Legal impossibility:
• Pure: one believes one is committing a crime, but one is not NOT GUILTY
because no law
• Hybrid: the actor’s goal is illegal, but commission of the offense is
impossible due to a factual mistake an attendant circumstance CAN BE
A DEFENSE
o Defense:
Jaffe: defendant attempts to buy cloth he believes is stolen,
but actually not, court holds him not guilty, would not have
been a crime
• (NOT GOOD LAW in most jurisdictions)
United States v. Oviedo: undercover agent buys ‘heroin’
from defendant, court holds not guilty
o Not defense:
Dlugash: defendant shoots a (potentially) dead man, court
affirms attempted murder because defendant believed
victim to be alive
Kreager FA19
MPC: eliminates defense of impossibility in virtually all situations and instead
focuses on the attendant circumstances as the actor believes them to be; Jaffe
would have come out switched under MPC
Solicitation:
o Common law: occurs when a person invites, requests, commands, hires, or encourages
another to engage in conduct constituting any felony
Under common law, solicitation is a misdemeanor
Solicitation is also a basis for finding accomplice liability
Mens rea: defendant must intentionally commit solicitation (if A jokes about B
killing C, and then B kills C, A is not liable for soliciting B to kill C)
Actus reus: the solicitation is complete the instant the actor communicates the
solicitation to the other person
o MPC: Solicitation/attempt are distinct crimes
o §5.02: Criminal Solicitation
(1) guilty of solicitation if he commands, encourages or requires another person to
engage in specific criminal conduct
(2) Solicitor doesn’t need to communicate directly with actor
• Can be implicit
(3) It is an affirmative defense if solicitor later stopped commission of the crime
o Differences between MPC and common law:
MPC grades solicitation at the same level as the target offense
MPC allows solicitation for all crimes (not just felonies)
MPC allows for someone to be charge with solicitation for an attempted crime
MPC allows for solicitation when otherwise would just be accomplice (giving
someone the gun)
MPC allows for uncommunicated solicitation
o Solicitation cases:
State v. Davis: wife hired undercover cop to kill her husband, court reverses charge
because mere preparation (the agent never intended to kill her husband)
Church: husband hires undercover agent to kill his wife, (flight bought, husband
identifies body, money exchanged), court upholds charge, solicitation + preparation
= substantial step
o MPC §5.05 Attempt/Solicitation/Conspiracy
• Same grade and degree
• Cannot be convicted of more than one offense based on the same crime
o No double-counting
Group Criminality
Complicity:
• Introduction:
o Common law:
Accomplice: when a principal commits an offense and defendant was intentionally
assisting
• Only responsible for natural and probable causes of crimes which they
intentionally assisted
• Generally, three forms of assistance:
o (1) assistance by physical conduct
Kreager FA19
•
o (2) assistance by psychological influence
o (3) assistance by omission
Accessory: not the chief actor, but involved before or after the offense is
committed
Innocent-instrumentality rule: provides that a person is the principal in the first
degree if, with the mens rea required for the commission of the offense, he uses a
non-human agent or a non-culpable human agent to commit the crime
Principal does not have to be convicted for the accomplices to be convicted
o MPC §2.06: Liability for conduct of another
Legally accountable for another’s conduct when (is an accomplice):
• Acting with culpability that is sufficient for the crime, he causes an innocent
or irresponsible person to engage in such conduct, or
• Aids or agrees or attempts to aid such other person in planning or
committing the crime.
• 2.06(4)
o Case:
Hicks: defendant horseback takes off hat, court reverses charge because not enough
evidence that defendant intended to aid/abet through words/actions
Mens rea:
o Common law:
Knowledge of assisting crime is not enough, assisting must be his conscious
objective
• Gladstone (1970): weed map case, court rejects accomplice charge because
there was no communication between defendant and drug seller
o There could be other purposes of drawing a map besides helping
drug dealer
• Feigned Principal: to be an accomplice, must share in the same intent as
principal
o If the principal does not commit the offense, but the requisite
elements for defendant’s complicity in the offense are present,
defendant can be held guilty under MPC §5.01(3)
o Hayes (1891): relative of store owners feigns acquiescence to
burglary, court holds defendant not guilty because principal lacked
intent to burglarize
No harm occurred
o Vaden: plane fox hunting Alaska, defendant charged with poaching
through accomplice, court upholds the charge
Harm occurred
Dissent: this is sentencing entrapment (see defenses)
• Natural and Probable Consequences Theory: can be held liable for any
other offense that was a natural and probable consequence of the crime
aided and abetted
o Liability is measured by whether a reasonable person should have
known that the charged offense was a reasonably foreseeable
consequence
o Rejected by MPC because under MPC, you must intend the result
o Cases:
Kreager FA19
People v. Luparello (1987): defendant enlisted friends to
find his former lover, they found her new husband and
ultimately killed him, the court affirms accomplice charge
b/c natural/probable consequence
Roy v. United States: police informant robbed buying
handgun, court reverses the charge because the robbery
was not in the ordinary course of events
• Ordinary course of events: refers to what may
reasonably happen, not to what may conceivably
happen
Mens rea for intending the principal to the commit the offense (results):
• US v Rosemond (2014): weed sale gone bad gun discharge, court upholds
conviction so long as defendant knew that his accomplice carried a gun
• McVay (1926): steamboat boiler exploded and killed three people, the
defendant is charged with complicity to involuntary manslaughter, court
upholds conviction because extreme recklessness towards the result
• Roebuck (2011): defendant helps lure victim to an apartment complex
where he is shot, intent to aid, not intent to kill is what matters
• Russell (1998): shootout, man shot by accident (no one knows who shot the
bullet), upheld conviction for three shooters: intended to create a
dangerous situation
•
Actus reus:
o Common law:
Need conduct/omission to assist in the commission of the crime
Once assistance is proven, any aid, no matter how trivial in degree constitutes
complicity
o Cases:
Wilcox v. Jeffery: Jazz concert, court holds publishing a review about the
performance and clapping at the performance constitutes complicity (mere
presence isn’t enough)
Conspiracy:
• Common law:
o Conspiracy: an agreement, express or implied, between two or more persons to commit a
criminal act
o Punishment:
Traditional: a conspiracy to commit a felony or a misdemeanor was a misdemeanor
Modern: a conspiracy to commit a felony is a felony
When the target offense is committed:
• Conspiracy does not merge into the attempted/completed offense
• MPC §5.03: Criminal Conspiracy
• MPC punishment: grades a conspiracy to commit any crime other than a felony of the first degree
at the same level as the actual crime
When the target offense is committed (different than common law)
• Offender cannot be punished for both conspiracy and the crime itself
o UNLESS the conspiratorial agreement involved the commission of
additional offenses not yet committed or attempted
Kreager FA19
•
•
Actus Reus:
o Tacit agreement can be inferred from parallel action even if no communication
o Common law:
(1) The object of the crime does not have to be a criminal act because the object
could be a lawful act done by unlawful means
(2) Does not require overt act
o MPC:
(1) Requires the object of the conspiracy to be a criminal act
(2) Requires overt act for third degree felonies/misdemeanors, but does not require
overt act for first/second degree
o Perry v. State (2014): known sex offender staying with family shares bedroom w/ daughter,
court reverses charge because no evidence of tacit agreement (need more than parallel
conduct)
Mens Rea:
o Purpose vs. knowledge:
Common law: allows for purpose (less serious crime) or knowledge (sometimes
sufficient for more serious crime)
• (1) Two or more people must intend to agree, and
• (2) Intend that the object of their agreement be achieved
MPC: purpose is required for the substantive crime
People v. Lauria (1967): prostitute phone answering service, court reverses the
charge because the defendant did not agree to purposefully achieve prostitution
Purpose can be inferred from knowledge of criminal activity when:
• (1) The defendant has an acquired stake in the offender’s venture
• (2) No legitimate use for the goods/services exists outside of the offense
• (3) Volume of business with the offender is grossly disproportionate to
demand
Powell Doctrine
• Conspiracy requires a criminal/corrupt motive, knowing it’s wrong. Not just
intent.
o
•
Mistake of law as an excuse (unlike with real crimes).
o Heavily criticized.
o Rejected by MPC.
Conspiracy accessory liability: assigning liability from one actor to another conspirator
o Pinkerton Doctrine: each member of the conspiracy is liable for acts of any of the others,
basically all acts within the reasonable and probable consequences
Essentially a negligence standard
Focuses on the idea of a continuous agreement
Foreseeability is added in Bridges
New conspirators are not liable for past crimes, only crimes committed after joining
Cases:
• Pinkerton (1946): moonshine brothers, one in prison charged w/ conspiracy,
upholds conviction because in furtherance of crime and reasonable and
probable consequence
o Must somehow disavow from conspiracy to not be liable
Kreager FA19
•
•
•
•
Bridges (1993): defendant brings homies back to party who shoot man,
defendant liable through conspiracy because death was foreseeable
consequence
o Example of defendant being liable for a consequence that was
never intended
o MPC rejects Pinkerton, and instead, a person is guilty of the substantive crime if he commits
it himself or someone else commits it and he is legally accountable for the person
He is legally accountable if:
• (1) He uses the person as an innocent instrumentality
• (2) The law says so
• (3) He is an accomplice of the person
o Example: If accomplice encourages speeding, then principal purposefully kills, accomplice
can be charged for negligent homicide while principal can be killed for murder
Structures of conspiracies:
o Single conspiracies: common, unifying purpose
Anderson: abortion referral, court upholds conviction because the outside hubs
were in it together (common purpose establishes outside rim)
• Example of hub-spoke with a unifying rim
Bruno (1939): TX/LA/NY drug trafficking, the court holds as one big conspiracy
because actors are dependent on each other
• NY and LA retailers could also be proved to be dependent on each other
because if one stopped, then there would not be enough demand
• Conspiracy with hub and two spokes
o Multiple conspiracies: separate purposes that are independent of one another
Kotteakos (1946): 31 people loan fraud, court rejects single conspiracy and holds it
was multiple conspiracies without one unifying purpose
• Defendants need a direct connection with one another for one conspiracy
McDermott (2001): porn star stock tips passed on to another, court holds that
defendant is not in a conspiracy with gf’s bf, only responsible for stock trading with
gf
• Not reasonable to believe stock tips were being passed on
Parties of conspiracies:
o Legislative exemption rule: a person may not be convicted of conspiracy to violate an
offense if her conviction would frustrate a legislative purpose to exempt her from
prosecution for the underlying substantive crime
Gebardi: Mann Act criminalizes act of transporting a prostitute, court holds there
can’t be a conspiracy between the prostitute and the transporter because prostitute
can’t violate Mann Act
• Can’t convict someone for conspiracy if they couldn’t be convicted for the
substantive crime. (I.e. victims of the substantive crime.)
o Wharton’s Rule:
Cannot have a “conspiracy” of two people who agree to do a crime that requires
two people to be performed in the first place (e.g. adultery).
Rejected by the MPC.
Bilateral vs. unilateral agreements:
o Unilateral approach: an individual can be liable for conspiracy even if the person who he
makes an agreement with is not truly agreeing (i.e. is a feigned co-conspirator)
Kreager FA19
•
•
•
MPC adopted this
Garcia v. State (1979): defendant solicited an undercover detective to kill her
husband, the detective feigned agreement, court upholds conviction
o Bilateral approach: an individual can be liable for conspiracy only if both parties honestly
agree
Ending a conspiracy:
o Common law:
When the objects are achieved
When the agreement is abandoned
When the statute of limitations ends
o MPC: §5.03 (7)
Policy issue: conspiracies need to be punished because
o (1) Groups are more likely to succeed
o (2) Group agreement and group pressure makes participants less likely to quit
o (3) Conspiracies allow criminals to commit crimes that require more people
o (4) Conspiracies increase future crimes because criminals become connected through them
Policy issue: justifications for expanding liability in Pinkerton:
o (1) Incentivize criminal groups to monitor and control excessively harmful activity
o (2) Helps prosecutor go after the group by punishing more accessible members
o (3) It allows government to gain information from informants
o (4) Allows prosecutors punish group will
Exculpation
•
•
•
•
Defenses based on elements:
o Lack of voluntary act
Intox
Automatism
Omission
o Lack of requisite mens rea
Consent
o Lack of causation
o Mistake of fact/law
Inchoate Crimes
o Wharton’s rule (conspiracy)
o Renunciation (attempt, conspiracy)
o Abandonment (conspiracy, complicity)
o Legislative exemption
o Entrapment
Justifications:
o Self defense
o Necessity
Excuses:
o Duress
o Intoxication
o Insanity
Justifications:
Kreager FA19
•
Self Defense:
o Burden of production on defendant by preponderance of the evidence
o Common law: a non-aggressor is justified if he reasonably believes such force is necessary
to protect himself from imminent use of unlawful for by the other person
Reasonable belief: subjective and objective component
Honest belief based on:
• (1) Previous similar experiences
• (2) Physical characteristics of defendant and victims
• (3) Specialized knowledge of aggressor
• (4) Physical/mental incapacities
Objective: reasonable person in actor’s situation (doesn’t matter if he’s WRONG)
• Goetz: white man felt threatened by four black men on the train and shot all
four, the court said justified b/c belief was honest and reasonably held given
experiences
Deadly force is only justified if necessary to prevent use of deadly force
o Required:
(1) Necessity component
(2) Imminence requirement:
• Norman: defendant kills abusive husband as he’s sleeping, no imminence
(3) Retreat:
• If a person can safely retreat, deadly force seems objectively unnecessary
• Most US jdx: no-retreat rule: a non-aggressor is permitted to use deadly
force to repel an unlawful deadly attack
• Stand your ground laws: statutes that abolish the retreat requirement
• Castle Doctrine: non-aggressor not required to retreat from his dwelling
even if he could do so safely
• Abbott (MPC case): driveway hatchet fight, retreat only arises if D resorted
to deadly force (if D planning to use moderate force, can always stand his
ground).
(4) Proportionality component: force can’t be excessive
o Limitations:
Battered woman syndrome: causes learned helplessness in women and involves
cyclical nature of violence
• Court still examines the defense objectively (not reasonable battered
woman)
• Evidence allowed to bolster women’s credibility regarding her fear, why she
didn’t leave, and the imminence of his abuse (she’s an expert on abuse and
her assailant)
o Kelly: abusive husband, wife comes back with scissors and stabs
him, court holds evidence should be allowed: it shows her
subjective fear and provides credibility to her reasonable fear of
imminent harm
Aggressor: under COMMON LAW, an aggressor has no right to a claim of selfdefense
• Aggression: Affirmative unlawful act reasonably calculated to start an affray
causing death or serious injury
• A hits B, B pulls out gun, A kills B
Kreager FA19
o
•
•
•
•
Common law: A is the initial aggressor, so any use of deadly force is
not justified (broader/stricter approach)
Peterson: defendant came out of the house to threaten
deceased with gun, then kills him, court says he provoked
the conflict, no defense
o MPC: Killing is justified, but A will still get charged with the initial
assault (narrower approach)
Imperfect self-defense allows for a murder to be mitigated if
• Belief that self-defense was justified was unreasonable
• Defendant was initial aggressor
MPC §3.04: Honest belief justifies use of force in self-protection if immediately necessary
(SUBJECTIVE)
MPC §3.05: Protection of other persons justified if other person justified under 3.04
MPC §3.09. Generic clawback provision for otherwise justifiable force (OBJECTIVE)
o (2): When D is R/N re: facts relating to justifiability of his conduct, defense is unavailable in
prosecution for offense for which R/N suffices for culpability.
o (3): If innocent person gets hurt because of justified self-defense force, self-defender not
liable unless they were R/N in belief
MPC requires immediate necessity, which relaxes imminence requirement
Protection of property:
o Common law: use of deadly force not accepted by courts
o MPC §3.06: (3)(d) Use of deadly force is not justified UNLESS the actor believes that:
(i) person is attempting to dispossess him of his dwelling or
(ii) person is attempting to commit arson, robbery or other felonious
theft/destruction AND either:
• (1) has employed or threated deadly force or
• (2) use of force other than deadly force would cause substantial danger of
substantial bodily harm
o Ceballos: spring gun in garage, court rejects self-defense - deadly force is justified only for
atrocious/violent crime (not just any ordinary felony like burglary)
•
MPC §3.07 Use of Force in Law Enforcement:
o Limitations:
(a) Use of force is not justifiable UNLESS:
(i) actor makes known purpose of arrest
(ii) when arrest is made under valid warrant
o (b) Use of deadly force is not justified UNLESS:
(i) arrest is for a felony
(ii) person effecting arrest is authorized to act
(iii) actor believes force employed creates no substantial risk of injury to innocent
persons; and
(iv) actor believes
• (1) crime included conduct with use of deadly force or
• (2) substantial risk that person arrested will cause death or substantial
bodily harm.
Kreager FA19
o
•
MPC §3.11 Definitions: (2) Deadly force: force which actor uses with purpose of causing or
knows to create risk of causing death or SBH. Threat to cause death or SBH insufficient
o Durham: V resisted arrest for misdemeanor, officer shot in arm. Not guilty bc officer can use
force as is necessary. If offender uses deadly force officer can use deadly force in return.
o Tennessee v. Garner: Officer killed suspect fleeing from scene. Statute allowing any deadly
force is unconstitutional. Deadly force cannot be used to subdue fleeing suspect UNLESS 1)
it is necessary to prevent the escape, 2) fleeing suspect poses a significant threat to others,
3) if threat of SBH to officer.
Necessity (Choice of Evils): last resort, conduct justified because the harm avoided > harm that
resulted
o Common law:
Necessity requires:
• (1) Clear and imminent danger
• (2) Direct causal relationship between action and harm to be averted
• (3) No effective legal way to avert harm
• (4) Harm to be caused must be less serious than the harm he seeks to avoid
• (5) No legislative determination already made in conflict with defendant’s
choice
• (6) Clean hands (didn’t cause necessity)
Limitations:
• (1) Some states limit the defense to emergencies created by natural (not
human) forces
• (2) Does not apply in homicide cases (up for debate)
• (3) Some states limit the defense to protection of persons and property
• (4) Indirect civil disobedience can never invoke necessity defense
o MPC §3.02: Justification, Choice of Evils
(1) Conduct which the actor believes to be necessary to avoid a harm or evil to
himself or another risk justifiable, provided that:
• (a) the harm or evil sought to be avoided by such conduct is greater than
that sought to be prevented by the law defining the offense charged
• (b) neither the code nor the other law defining the offense provides
exception or defenses dealing with the specific situation involved
• (c) a legislative purpose to exclude the justification claimed does not
otherwise plainly appear
(2) When the actor was reckless or negligent in bringing about the situation
requiring a choice of harms or evils or appraising the necessity for his conduct, the
justification afforded by this section is unavailable in a prosecution for any offense
of which recklessness or negligence suffices to establish culpability
o MPC is broader than common law because
(1) rejects imminence requirement
(2) a person does not automatically lose the defense because he was at fault in
creating the necessitous situation
(3) generally applicable no homicide exception, natural/human force distinction,
limitation to harm to persons/property
o Defense granted:
People v. Unger: defendant claims that he escaped from prison to avoid sexual and
physical (life threatening abuse), court allows necessity defense because defendant
Kreager FA19
o
is without blame and he reasonably believed that escaping was necessary to avoid
injury greater than that from escaping
• Dissent: policy issue incentivizing prison escapes?
Defense rejected:
Commonwealth v. Leno: defendant convicted of distributing hypodermic needles to
fight AIDS, the court rejects necessity defense because of the clear legislative
purpose
United States v. Schoon: civil disobedience at IRS office to protest money going to El
Salvador, the court rejects defense because not necessary, not related, no imminent
harm, there are alternatives
Regina v. Dudley and Stephens: didn’t know boat would be coming
Public Committee Against Torture v. Israel: necessity defense can be used when
convicted of torturing, but we are not going to authorize it for the future (need for a
safety valve because saving lives > torture)
Excuses:
• Duress:
o Common law:
One can be acquitted of an offense except for murder if the criminal act was
committed under the following circumstances:
• (1) another person threatened to kill or grievously injure the actor/third
party, particularly a near relative, unless she committed the offense
• (2) the actor reasonably believed that the threat was genuine
• (3) the threat was present, imminent, and impending at the time of the
criminal act
• (4) there was no reasonable escape from the threat except through
compliance with the demands of the coercer
• (5) the actor was not at fault in exposing herself to the threat (clean hands)
Different than necessity because:
• Necessity revolves around a choice and making the right choice and duress
involves no choice or making the wrong choice
o MPC §2.09. Duress:
(1) It is an affirmative defense that the actor engaged in the conduct charged to
constitute an offense because he was coerced to do so by the use of, or a threat to
use, unlawful force against his person or another person, which a person of
reasonable firmness in his situation would have been unable to resist
(2) This defense is unavailable if the actor recklessly placed himself in a situation in
which it was probable that he would subjected to duress. The defense is also
unavailable if he was negligent in placing himself in such a situation, whenever
negligence suffices to establish culpability for the offense charged
(3) It is not a defense that a woman acted on the command of her husband, unless
she acted under such coercion as would establish a defense under the previous
section
o MPC is broader than common law:
MPC doesn’t require duress to be in response to an imminent deadly threat
MPC allows defendant to plead duress as a result of non-deadly threats
MPC’s duress is generally applicable
Kreager FA19
o
o
o
o
MPC doesn’t require the person imperiled to be the defendant or a family member
MPC is similar to common law:
Both limit the defense to threats or use of unlawful force (therefore, doesn’t apply
to natural sources of threat)
Both do not recognize an interest other than bodily integrity
Defense allowed:
State v. Toscano: chiropractor faked medical reports to aid in an fraudulent
insurance scheme in order to avoid harm to himself and his wife, the court sends
the defense to the jury because the court defines duress as a defense to crime other
than murder if defendant was coerced to do so by the use of or threat of use of
unlawful force, which a reasonable person could not resist (mixes MPC and common
law)
Defense not allowed:
US v. Fleming: Korean POW collaborated with the enemy after being threatened to
be put in a hole, the court holds no defense because the harm was too remote and
problematic
Comparing duress vs. necessity and person vs. nature
Threat Comes From Person
Threat Comes From Nature
Net positive gain
§3.02 (necessity)
§2.09 (duress)
§3.02 (necessity)
Net negative gain
§2.09 (duress)
No excuse
•
Intoxication: disturbance of mental or physical capacities resulting from the introduction of any
substance into the body
o Voluntary: the actor is culpable for becoming intoxicated
Common Law: mostly, intoxication is never an excuse
• Mens rea issues:
o If defendant, because of his intoxication, lacked the mental state
required in the definition of the offense
General intent crimes: no defense, intoxication typically
constitutes reckless conduct
Specific intent crimes: traditionally, intoxication is a defense
for specific intent crimes because intoxication can render a
person incapable of forming the specific intent required
• Actus reus issues: unconsciousness
o The general approach is unconsciousness is not a defense if the
condition itself was brought on by voluntary consumption of alcohol
or drugs
MPC §2.08. Intoxication:
• (1) Except as provided in (4), intoxication of the actor is not a defense
unless it negatives an element of the offense
Kreager FA19
•
•
•
•
o
(2) When recklessness establishes an element of the offense, if the actor,
due to self-induced intoxication, is unaware of a risk of which the actor
would have been aware had he been sober, such unawareness is immaterial
o Must ask: would you have been aware of the risk if you were sober?
(3) Intoxication is not a mental disease
(4) Intoxication which (a) is not self-induced or (a) is pathological is an
affirmative defense if, by reason of such intoxication, the actor at the time
of his conduct lacks substantial capacity either to appreciate its criminality
or to conform his conduct to the requirements of the law
(5) Definitions:
o Self-induced: intoxication caused by substances which the actor
knowingly introduces into his body, the tendency of which to cause
intoxication he knows or ought to know, unless he introduces them
pursuant to medical advice or under such circumstances as would
afford a defense to a charge of crime
o Pathological intoxication: intoxication grossly excessive in degree,
given the amount of the intoxicant, to which the actor does not
know he susceptible
Cases:
• People v. Hood: drunk defendant shoots policeman while resisting arrest
(assault w/deadly weapon is a specific intent crime), the court holds the
crime was actually a general intent crime, and therefore, intoxication is not
a defense
• State v. Stasio: defendant convicted of robbery with intent to steal, court
upholds conviction and states that intoxication cannot be used as a defense
for specific intent crimes, but intoxication can be used to show lack of
malice, mistake of fact, or that you were too drunk to even participate in a
crime
o Suggestion of letting judges take drunkness into account at
sentencing
Involuntary:
Common law: seems like defendant would be acquitted
MPC §2.08:
• (4) Intoxication which (a) is not self-induced or (a) is pathological is an
affirmative defense if, by reason of such intoxication, the actor at the time
of his conduct lacks substantial capacity either to appreciate its criminality
or to conform his conduct to the requirements of the law
o Must ask: would you have been aware of the risk if you were sober?
Case:
• Regina v. Kingston: drugged man molests young boy after being drugged by
friend
o Trial court: there is a difference between having pedophiliac
inclinations and acting on those inclinations, defendant would not
have formed an intent if it had not been for the drug
o Appellate court: reliability issue (counterfactuals hard to prove),
perverse effect of allowing defense to people with stronger criminal
impulses to begin with that drugs allowed them to act upon.
Kreager FA19
•
Insanity: presumption that defendant is sane
o Common law:
Competency to stand trial
• Presents DP concerns
• A person is incompetent if she:
o (1) lacks the capacity to consult with her attorney with a reasonable
degree of rational understanding, or
o (2) lacks a rational as well as factual understanding of the
proceedings against her
Insanity Defense:
• Rationale:
o Utilitarian: punishing the insane is pointless/counter-productive,
cannot be deterred and will be incapacitated anyway
o Retributivist: we don’t want to punish someone that did not act
with free will, one cannot be morally responsible for their actions if
they do not have rationality/self-control
• Rarely used and even more rarely successful (jurors are skeptical)
• Tests:
o M’Naghten Test: cognitive based
Person is insane if, at the time of her act, she was laboring
under such a defect of reason that:
• (1) she did not know the nature and quality of the
act that she was doing
• (2) if she did know it, she did not know that what
she was doing was wrong (i.e. she didn’t know the
difference between right and wrong)
o Some jurisdictions say morally wrong and
some say legally wrong
Not a question of whether the
defendant personally believed that
the conduct was morally proper,
but rather, the question is whether
she knowingly violated societal
standards of morality
o Deific Decree doctrine: a mentally disorder
individual who believes that what she is
doing is by the command of a superior
power, which supersedes all human laws is
considered legally insane
Cases:
• M’Naghten: defendant killed the PM’s secretary,
thinking it was the PM because felt as though the
Tories were after him, court establishes test above
o Irresistible impulse (Blake): broadens M’Naghten by added a third
prong, encompassing volitional capacity
o MPC:
MPC §4.01: Mental disease or defect excluding responsibility
Kreager FA19
•
•
(1) A person is not responsible for criminal conduct if, at the time of such
conduct, as a result of mental disease or defect, he lacks substantial
capacity either to (1) appreciate the criminality of his conduct or to (2)
conform his conduct to the requirements of law
o (1): cognitive
o (2): volitional
• (2) As used in this article, the terms mental disease or defect do not include
an abnormality manifested only by repeated criminal or otherwise antisocial conduct
o Psychopath exception
MPC §4.02: Evidence of mental disease/defect is admissible when relevant to
element of offense
• (1) Evidence that the defendant suffered from a mental disease or defect is
admissible whenever it is relevant to prove that the defendant did or did
not have a state of mind which is an element of the offense
Cases:
• Blake v. United States: rich defendant robs a bank, the court uses the MPC’s
substantial capacity test and volitional ability test
• United States v. Lyons: defendant claims drug addiction rendered him
incapable of knowingly securing controlled narcotics, the court rejects the
volitional prong (because of current state of medical knowledge) and asks
only if at the time of the conduct and as a result of a mental disease/defect,
defendant was unable to appreciate the wrongfulness of that conduct
o Acknowledges physical damage to the brain
o Right vs. Wrong: legally or morally?
State v. Crenshaw: defendant kills wife after honeymoon because his Muscovite
religion tells him it is proper, the court holds that it was clear defendant knew the
difference both between what was morally wrong/right and what was legally
wrong/right
o Mental issues as evidence:
4 approaches to admission of mental health evidence short of insanity defense:
• 1) Brawner: Allowed whenever logically relevant, like intoxication (majority
& MPC approach)
• 2) Clark: Never admissible to defeat mens rea (can only use to establish
insanity defense)
• 3) McCarthy: Admissible when 1) negates MR required for SI crime, and 2)
there is a lesser-included offense for which D can be convicted (*prevails
among fed courts)
• 4) Wetmore: Allowed to defeat SI MR, even w/no lesser-included offense
(corresponding GI crime)
Entrapment: a practice whereby a law enforcement agent induces a person to commit a criminal
offence that the person would have otherwise been unlikely to commit