Criminal Law Notes
Chapter 1: Institutions and Processes
A. The structure of the Criminal Justice System
 Criminal justice system is society's mechanism for enforcing standards of conduct and a
way of protecting the safety and security of individuals and the community.
 Agencies and institutions in the system all interact but are run independently.
 High demand, low resources
 Criminal Defense systems:
o Non-indigent defendants: private defense attorneys
o Indigent defendants:
 Appointed counsel system - pro bono work
 Contract system - contract w/ defense attorneys from govt'
 Defense system - agency funded by city
 Lower criminal courts are very overworked - congestion, delay, hasty decisions
 Incarceration rates increasing since 70s while crime rates are not.
 What is a crime?
o Moral condemnation = criminal quality
o Social harm against community - why public entities try the cases
o Socially stigmatized and condemed
 Who decides what a crime is? Legislature, common law (judge made law from England),
courts, constitution.
C. Process for Determining Guilt
3. Proof Beyond a Reasonable Doubt
 What is reasonable doubt?
o P 35 "not a mere possible doubt, bc everything relating to human affairs is open to
some possible or imaginary doubt. It is that state of the case which leaves the
minds of the jurors in that condition that they cannot say they feel and abiding
conviction of the truth of the charge.
 Proof beyond a reasonable doubt meant to reduce risk of convictions resting on factual
error.
 Preponderance of the evidence v. proof beyond a reasonable doubt
 It is worse to convict an innocent person than to let a guilty one free, but what about 1 to
1000?
 IN RE WINSHIP
o Issue - is the preponderance of the evidence constitutionally permissible in a
criminal case?
o Justice Brennan - NO, proof beyond a reasonable doubt is necessary
o Reasoning - it is the base of our society. It's a prime instrument for reducing the
risk of convictions resting on factual error. Builds trust in community.
Chapter 2: The Justification of Punishment
A. What is punishment?
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Imposed by govt' entities
Probation imprisonment, death, the conviction itself.
Encyclopedia of Crime and Justice:
o Incarceration = crushing routine and relentless boredom
o Violent outbreaks, more in maximum security prisons.
B. Probing the basis for punishment: a classic case
 Regina v. Dudley (briefed separately)
o Issue - is killing an innocent person to save one's life justifiable or murder?
o Holding - the deliberate killing of the boy was murder.
o Reasoning - the act was unnecessary and profitless because they might have
possibly been picked up the next day. Boy was incapable of resisting.
o Such a principle once admitted might be made the legal cloak for unbridled
passion and attrocious crime. Temptation no excuse.
C. Why Punish?
 Punishment intended to be unpleasant.
 Needs justification
o General justification - why do we punish
o Distribution - who do we punish
o Degree - how much do we punish
 Justifications are: utilitarian, retributive
1. Utilitarian
 All laws should aim to produce happiness
 If the pain is greater than the good expected, one might not act (costbenefit)
 Forward looking - preventing social crime
 Assumes criminal is rational, knows the law, and knows the consequences
 Deterrence:
 General deterrence - punishment deters others from acting
 Individual deterrence - punishment deters the individual from
acting again
 Rehabilitation
 Incapacitiation
2. Retributive
 Punishment must be justified by the seriousness of the offense
 Blame-based
 Punishment is an intrinsic good
 Backward looking - correcting past
 Looks at individual character
 Only the guilty will be charged
 Morally right to hate criminals
3. Retaliation/Vengence
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Looking at end result or harm caused
Who picks a consequence? Who should? Whose input should be
considered?
4. Mixed Theories
 Aim of punishment v. limits on its use
o Rape example - incapacitation before sentencing
 Justifies punishment on preventative grounds, limits punishment to no
more than deserved
 What purpose does capital punishment serve? Utilitarian? Retributive?
5. The complexities of crime control
 Wilson "impulse causes criminals to commit a crime
 Raising punishment does not always deter behavior
 Huge moral influence in relation to deterrence
 Must earn a reputation for:
o Punishing those who deserve it
o Protecting those who dont
o Applying reasonable punishment
 Deterrence o General deterrence - punishment deters others from acting
o Individual deterrence - punishment deters the individual from
acting again
o Resources need to be used effectively
o Group norms deter
 Rehabilitation
o Prevent future crime
o Aimed at character
o They are "diseased" so no blame
 Incapacitation
o People will recommit crimes, so keep them from doing it
o Job slots, one person out, another in?
Elements of Just Punishment
D. Culpability
1. Actus Reus
 What is required for a crime
o Bad act (actus reas), culpable mental state (mens reas), causation, concurrence
 An Act
o Prohibited act
o Prohibited result
o Circumstance
 Thought is not a crime
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Actus renus - voluntary act versus mens reas versus excuse
Why let involuntary offender free? Law can't deter involuntary behavior
Voluntary v. blameworthy acts
o Involuntary acts are never blameworthy BUT voluntary acts are not always
blameworthy
Duress - threats, violence, constraints or other action brought to bear on someone to do
something against their will or better judgment
Burden of proving beyond reasonable doubt often on defendant.
Can habits be involuntary? NO, cell phone example in car
Somnambulism - sleep walking
o Ms. Cogden released of charge of killing her daughter since she was sleeping.
o Strict liability - don't have to prove mens rea
The requirements of voluntary action
Martin v. State (briefed separately)
o Facts - Martin arrested at home and drunk. Taken to highway, began causing a
scene because he was drunk, charged with being drunk on a highway. Argues that
he was taken to the highway unwillingly.
o Issue - can accusation of drunkenness on a highway when the accused is
involuntarily brought there be upheld?
o Holding - No, he was there involuntarily.
o Rule - Voluntariness is presupposed in regard to the statute about public
drunkenness.
o Absurd results if you add voluntariness requirement into the statute OR using
plain meaning to convict possibly "innocent people"
People v. Decina
o Epileptic driving a car and hurting others, voluntary if knew it was possible.
People v. Newton (briefed separately)
o Facts - Newton shot Officer Frey during an altercation. Newton claims (as well as
doctor) that he was shot in the stomach and was unconscious during the shooting
of Officer Frey.
Issue - did court err in not allowing instruction on unconsciousness as a defense in
trial court?
o Holding - Court erred.
o Involuntary by unconsciousness
Why should the definition of an involuntary act be much narrower than the ordinary
persons?
o Not just about not remembering, or just about lack of control of impulse
o "I couldn't help myself" could become a defense
Omissions
 Jones v. United States - briefed separately
o Facts - Jones had baby staying with her. Evidence not certain on how long mom
lived in house with baby and D or if there was payment involved. Jones did not
provide proper care and baby died. She was charged with involuntary
manslaughter but appeals.
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o Rule - Breach of legal duty when: statute in place to impose a duty to care for
another, where one stands in a certain relationship to another, where one has
assumed a contractual duty to care for another, where one has voluntarily
assumed the care of another.
o Issue - did the D have a legal duty to care for the baby? Did jury give correct
instructions on rule?
o Holding - jury was not given correct instructions. If jury finds she falls into one of
the categories above for legal duty, she will be guilty.
o If no legal duty to act, no actus reus.
Pope v. State - briefed separately
o Facts - Pope took in Morris and her baby. Morris had a mental outbreak and beat
her baby to death. Pope did nothing to help and did not call 911 or provide
support to baby. Pope charged with child abuse and appeals conviction
o Issue - Did Pope have responsibility for the supervision of the child?
o Rule - §35: a person may be convicted of the felony of child abuse when the
person was responsible for the supervision of minor child and caused, by being in
some manner accountable, by act of commission or omission.... etc.
o Holding - Pope was not responsible for the child. Mom was there the whole time.
o Should the law be more broad (to account for Pope here) or more narrow?
 How should we spend our money? On holding ppl accountable for their
actions or punishing people for not helping others?
Model Penal Code 2.01(3)
Bystander indifference
o Why do people not act?
 More ppl less action
 Fear of retliation
 Rape crisis center - privacy rights?!
Statutes that require action are valid but ineffective...
States with duty of bystander: MN, RI, VT - crime not to render aid
FL, HI, WI - in more limited situations - victim of crime, not just "in peril"
Problems with law requiring aid
o Unseen danger
o Micromanagement?
Realization - mental state
o i.e. pushing into lake and then realizing that he cannot swim
Possession - generally need the knowledge of possession
o Is possession an act? Not so important
o More important - intent, do you know?
o Knowledge is usually read in with possession
The duty of one who creates another person's peril
 One who causes risk to another is under duty to take responsible care to prevent the risk
from taking effect.
Distinguishing omissions from acts
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Barber v. Superior Court - briefed separately
o Facts - Doctors pulled life support and nutrition tubes after surgery when man had
a respiratory arrest and family said that's what they wanted to do. Doctors were
charged with murder and conspiracy
o Issue - did the physicians unlawfully and intentionally kill the man?
o Holding - the doctors should not be held to answer for the charges. A doctor has
no duty to continue treatment once it has proven to be ineffective, By stopping the
machines the doctors, in essence, withdrew treatment
o Act or omission?
Airedale v. Bland
o Euthanasia is not lawful at common law
o Once euthanasia is recognized as lawful in these circumstances, it is difficult to
see any logical basis for excluding it in others
o A doctor in discontinuing life support is "omitting" not "committing"
o Omission is not unlawful unless it constitutes a breach of duty to the patient.
Difference between killing and letting one die (active v. passive)
2. Mens Rea - mental component of a crime
 Vicious will = mens rea
 Mens rea defense - involuntary act, duress, legal insanity, accident, mistake.
 Choice to act is not enough
o Moral blameworthiness will be lacking
 The moral condemnation of society requires moral culpability
 Regina v. Cunningham - briefed separately
o Facts - D stole gas meter for money and someone was almost poisoned to death.
Charged and convicted.
o Issue - did the D intentionally cause the poisoning or know the gas would emit?
o Rule - causing someone to inhale gas unlawfully and maliciously, administer
poison, endanger life of another.
o Holding - Jury will decide, with correct instruction, on whether the D action's
were unlawful or not.
o Need to know the harm could occur
 Regina v. Faulkner
o Facts - sailor went to steal rum and accidentally caught rum on fire, destroying the
ship
o PH - changed with violating the Malicious Damage Act by "maliciously" setting
fire to ship. Appeal. Conviction quashed.
o Reasoning - to constitute an offense under the Malicious Injuries to Properties
Act, the act done must be in fact intentional and willful.
o Purpose - did he intended to burn the ship? No
 Categories of culpability
o Purpose (subjective)
o Knowledge (subjective)
o Recklessness (subjective)
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o Negligence (objective)
o Strict liability
o General immorality
General/specific intent
o General - blameworthy state of mind "maliciously" - "possess a firearm in a
school zone"
o Specific - proof of a particular mental state requires, two elements - "possess a
firearm with the intent to use it during a drug deal"
Malice - requires forethought
Different levels of blameworthiness for different parts of the statute
***Model Penal Code 2.01, 2.02(2)(a)-(d), 2.02(3)-(4)
o 2.02(4) - apply original mental state to all aspects of the statute if others aren't
distinguished ***When it's an MPC statute.
o If there's more than 1 mens rea but not covering all elements look to 2.02(4) to
discern or make best judgment as a last resort
In MPC - Purpose, knowledge, recklessness, negligence (In that order!) (these are all
specific intent crime mens rea)
*Presume recklessness if no mental state is specified
o One of these must be proven with respect to each material element of the offense.
Distinction between knowledge and purpose
o Purpose - conscious effort to perform action of certain nature with certain
consequence.
 STEAL bread for family
o Knowledge - aware that conduct has result practically certain to follow
 Willfull blindness (deliberate ignorance)
Recklessness
o Disregarding substantial risk of which aware (subjective)
o Conscious risk creation
o How much risk was the actor aware of?
o Risk unjustifiable
o More culpable, knew of risks but acted anyway
Negligence
o "Gross deviation from standard of care expected
o Not aware of risks but should have been
o No state of awareness - diff from recklessness
 Jury must find fault
 Must find substantial and unjustified
 Less culpable bc of lack of awareness of risk
Culpability, if determined, will be applied to all material elements
In applying MPC:
o 1 - ID elements of the offense
o 2 - Determine which type of mens rea (mental state) is required with each material
element.
Practice applying mens rea to statutes (see physical notes)
o Not always clear in statute the state of mind required
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Purpose v. motive
o Steal $ ---> intent
o Help daughter ----> motive (irrelevant)
Purpose v. wish
o Kill aunt by giving away plane ticket and wishing plane crashes
 Answer depends on circumstances! i.e. terrorist attack known
Recklessness v. knowledge
o US v. Jewell - briefed separately
 Facts - D carried into country 110 lbs of pot into the country but claims he
did not know it was in the car.
 Rule - required knowledge
 willful blindness = positive knowledge under the law
 Willful blindness instructions are used in areas other than drug
convictions.
When given a statute, first ask if it is:
o Common law?
o State?
o Federal?
o MPC?
o Is mens rea attached?
If no mens rea in the statute:
o Common law ---> general intent
o State/federal ---> strict liability
o MPC ----> recklessness
With a state/fed statute: IF NOT MPC
o If mens rea is not clear for each element:
 Look at legislative purpose
 Then case law
 Then interpret for yourself
Mistake of Fact - actor has caused social harm but unaware of special fact relating to an element
of an offense ---> when does this serve a defense?
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Regina v. Prince 1875 - briefed separately
o Procedural history - Price convicted of taking unmarried girl under 16 years of
age out of possession and against the will of her father. D appeals claiming he did
not know her true age.
o Rule - whoever shall 1) unlawfully take or cause to be taken 2) out of the
possession and against the will of her father or mother, or of any person having
the lawful care of charge of her 3) an unmarried girl being under the age of 16
(strict liability), will be guilty of a misdemeanor.
 No mens rea stated in statute
o Legislative intent - if anyone does this wrong act, he does it at risk of her turning
out to be less than 16
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Issue - Is not knowing her age reason for dismissal or lesser charge?
D arg - didn't know she was 16, jury believes this.
Holding - not knowing is not a defense
Reasoning - strict liability crime, act is wrong in and of itself (moral wrong) and
mens rea not required
o "common law" will be a clue that it is unlikely to be a strict liability crime,
strict liability more common in modern law.
MPC
o Aims to address subjective culpability
o MPC presumes that aggravating circumstances should trigger more severe
penalties only when D was aware of the circumstances
o 2.02(3) rejects strict liability unless child is less than 10
o 2.13(6) - strict liability - mistake doesn't negate, specific intent - mistake can
negate, general intent - mistake will negate with reasonableness
People v. Olson- briefed separately - not discussed in class
o Statutory purpose was to protect children
o Statutory purpose would not be upheld if mistake was allowed as defense, so D
found guilty
Garnett v. State - briefed separately - not discussed in class
o Retarded man impregnated girl who turned out to be younger than he thought
o Statute meant to protect children, strict liability crime
o No room for mistake as a defense, despite D's disability
There are more extreme forms of strict liability when emphasis of statute is upon social
betterment, not about punishment
US v. Balint - briefed in notes
o Facts - D violated narcotic act but didn't know it, just didn't fill out correct
paperwork
o Issue - is knowledge required by the statute ?
o Holding - no, knowledge is not required by the statute = strict liability
o Reason - goal is the betterment of society in the law
Public welfare offenses - conduct is wrong because statutes say it is wrong, not
necessarily because it is inherently wrong or dangerous to others
Non - public welfare offenses are those that are morally wrong and usually are strict
liability offenses (murder, rape, arson, etc.)
Morissette v. US - briefed separately
o Facts - D took shell casings from a govt' bombing field and believed they had
been abandoned. He was convicted of knowingly converting government property
o Issue - is intent applied to taking the property or showing that D knew the
property was abandoned?
o Holding - D must be proven to have knowledge that the property had not been
abandoned in order to be convicted, not just the intent to take the item
o Reversed
o A crime of this character has had an intent aspect rooting from common law.
Staples v. US - briefed separately
o Facts - D had a gun in which the automatic firing lock had worn down, but he
didn't know it could fire automatically
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o Rule - it is unlawful for any person to have a firearm (gun w/ automatic
capabilities) which is not registered to him in the NFRT Record.
o Issue - was D guilty if he didn't know the gun would fire automatically?
o Holding - No, not guilty, mens rea implied in this statute
Mistake of Law - similarly treated to mistake of fact
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Different standards for different situations
People v. Marrero - briefed separately
o Facts - D was convicted of violation of gun carry statute. D thought he was
exempt from the statute because of his job as a corrections officer, but actually the
statute does not exempt him. D make a mistake of law.
o Issue - does a person's misreading of a statute exclude him from guilt?
o Mistake in law itself v. misinterpretation of the law
o Holding - D is responsible because he misread the statute, it was not miswritten or
misinterpreted by an official source
o PPL's argument, D must show that the statute permitted his conduct, not merely
that he believed it did
Cheek v. US - briefed separately - not discussed in class
o Facts - D did not file income taxes for several years and claimed that he believed
he was not supposed to
o Issue - is an unreasonable belief about one's duty a defense?
o Holding - yes, an unreasonable belief is a defense in this situation because taxes
are very complicated to the common person
Lambert v. California - briefed separately
o Facts - D charged of violating the registration law for ppl convicted of a felony.
Appeals on the basis of mistake of law
o Issue - are a person's due process rights violated where a registration act is applied
to a person who has no actual knowledge of his duty to register and where no
showing is made of the probability of such knowledge?
o Holding - Yes, due process rights were violated. Due process requires notice and
no notice was given here. D did not have the chance to defend her charges by
registering.
US v. Int'l Minerals
o Court held that the prosecution must prove that the actions the D knowingly
committed violated a regulation
 Not that he knew of the existence and meaning
Liparota v. US (food stamps)
o Opposite conclusion from above
 Needs knowledge of illegality
US v. Ansaldi
o This drug statute is different, knowledge of law is not an element! (or intent to
violate)
US v. Overholt
o Court held that this was NOT a strict liability crime?
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o Bc environmental regs have become even more complicated than tax law
Official reliance
o Official advice cannot be used as a defense
 i.e. erecting marriage signs at advice of state counsel
o MPC recognizes that rules like the one above are unfair and pointless
 2.04(3) comment - what purpose is served by the conviction? Lesser
sanctions should suffice
MPC's official reliance defense is widely accepted
o Reliance defense must be a reasonable reliance.
"Cultural Defense"
o Rex v. Estop - sodomy for Bagdad guy.
o Usually, there is a cultural defense :(
Chapter 4: Rape
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Rape originally a property offense
Common law rape - forcibly against her will
o Not husband
o Used to only be men against women
o Predominant view was that women are lying
Actus Reus
 State v. Rusk - briefed separately
o Facts - V met D at bar and gave him a ride home. He took her keys and she came
upstairs out of fear. D pulled her into bed and began to undress her, she began to
undress him he lightly choked her and she asked "if I do what you ask will you
not kill me?" he said yes. They had sex and he later walked her to her car.
o Issue - was the V's fear reasonable, and was there proof that the victim was
reasonably scared in that it made her fail to physically resist?
o Rule - statute required force or threat of force and lack of consent. Lack of
consent could be sustained if V failed to resist because of fear.
o Holding - her fear was enough and it was reasonable, his affirmative response to
her question, taking her keys in an area she didn't know.
o Dissent states that "light choking" is not enough
 State v. DiPetrillo - briefed separately
o Facts - D (V's boss) called V into his office at the end of the day and grabbed her
by the risk, pulling her onto his lap and kissing her. He physically moved her to
the chair and pulled down her pants and digitally penetrated her. She resisted this
entire time by saying that she did not want to do this, finally she was able to get
away.
o Issue - was the required force and coercion present to constitute conviction?
o Rule - requires "force or coercion" but does not define. Burke convicted when D
was a police officer and force was not necessary then.
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o Holding - evidence of enough force is not present, relationship is not one that
would deem force unnecessary.
o Dissent - clear cut assault case!
There has been a traditional letting go of the resistance requirement.
Progression of force requirement:
o Force and non-consent → force → utmost resistance → reasonable resistance →
non-consent → affirmative expression of consent
o Perp friendly → victim friendly
What is reasonable?
MTS - briefed separately
o Facts - MTS staying at CG's house and came into her room in the middle of the
night and they had sex. CG claims that she was sleeping and when she woke up
she smacked him and he got off. Court holds that the victim had consented to a
session of intimacy and was not sleeping at the time of penetration but
nevertheless had not consented to the sexual act
o Issue - can "physical force" element from the statute be met simply by an act of
non-consensual penetration involving no more force than necessary to accomplish
the act?
o Holding - yes, non-consent can satisfy the force element
o The statutory purpose was to place the burden on the defendant rather than the
victim to prove non-consent.
o Force = non-consent by itself
o Argument here is that this is STILL about the victim's behavior!
 Not resistance on behalf of V BUT consent on behalf of V!
What is consent?
 Action or thought?
o Require both
 Berger - "No" should suffice but jury needs to believe that she said no.
 Schulhofer - surgery example, nonconsent is anything that is not affirmative willingness
Standards today still require proof of non-consent
o Moved away from requiring force
 Can't consent when:
o Unconscious or incapacitated
 Someone else needs to drug the victim
o Maturity
o Asleep
o Mentally disabled
 People v. Giardino
o Asked how the alcohol affected V's power to judge the situation and how it
affected her power to resist
 State v. Al-Hamdani
o BAC of 0.15 enough to void consent
Mens Rea
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Commonwealth v. Sherry – briefed separately
o Facts – D's all had sex with victim and she verbally protested throughout the
night.
o Issue – should a mens rea have been applied?
o Holding – virtually no courts accept the mistake of fact defense (mens rea)
o There was also ample evidence that D's used force, making mens rea unnecessary.
Statute said "any resistance is enough.
Commonwealth v. Fischer – briefed separately
o Facts – D and V had a rough sexual encounter not long before the alleged rape. D
claims mistake of fact because he thought she wanted it.
o Issue – is mistake of fact a viable defense in this situation?
o Holding – mistake of fact is not a defense through precedence with Williams and
in addition this case also alleges physical force, so mistake of fact will not be
allowed.
Victim consent in other crimes:
o Larceny v. sexual crimes and mistake of fact
o Other crimes allow mistake of fact. Why?
 Rape is morally wrong and there is less room for mistake
The practical effect of a negligence standard
o Recommendations to spell out consent rather than let the jury decide the
reasonableness
John Z Case
o Became a case of "withdrawn consent"
 When did she express non consent
 How did she express non consent
 How long did D wait to stop
o Court held that John Z raped the V. He did not stop when she said repeatedly "I
have to go home", etc.
o Court says at the moment of objection and D forcibly continues, rape occurs
Statutory Frameworks and rape
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All jurisdictions require different forms of resistance, consent, age limits, etc. and mens
rea.
In CA, mistake of fact (reasonable) is permitted.
Chapter 5: Homicide
 Homicide is about the question of greater or lesser punishment, not crime or no crime
 Division by name and by degree
 In homicide, 2 problems:
o Substantive – which facts determine punishment severity?
o Institutional – who gets to decide?
 Report of Royal Commission on Capital Punishment
o Malice aforethought or no malice aforethought
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 Murder v. manslaughter
o Malice aforethought – mental attitudes which make homicide murder
o Mens rea has changed what malice aforethought means
o acepti
Common law murder – killing of another with malice or aforethought
Malice aforethought
o Intent to kill (express)
o Intent to inflict great bodily injury that results in death (implied)
o Reckless indifference to an unjustifiably high risk to human life (“abandoned and
malignant heart”)
o Intent to commit a felony and death results (felony murder)
Baseline is Second Degree
o First – deliberate and premeditated
o Voluntary manslaughter – heat of passion
o Felony murder – First degree
Premeditated – time to reflect, can be brief
o Is a timing issue
All homicide elements:
o Conduct
o Death = result
o Causal connection between conduct and result
o Mens rea * Distinction between levels ---> CRITICAL
Discussions among jurisdiction
o Purpose/knowledge ---> murder
o Reckless murder
o Manslaughter ---> provoked/purposeful
o Sometimes reckless manslaughter
Deliberate/premeditated issues
o Deliberate --- decision to kill in cool and dispassionate manner
o Premeditation --- reflection on idea of killing, even if brief
Anderson
o Horrible case, very gruesome
o Not 1st degree because it was not premeditated
Intentional killings
Premeditation – diff btwn 1st and 2nd
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Commonwealth v. Carroll – briefed separately
o Facts – D quit job to return home with family. There were disputes about D's next
job move. D and wife had fight for hours and while laying in bed D shot V twice
in head, killing her. Before shooting she was laying with her back to him and had
not spoken in about 5 minutes.
o Issue – Was D deliberate and premeditated in his killing, to constitute 1st degree?
o Holding – Yes, D was deliberate and premeditated. Premeditation can be basically
instant (Comm. v. Earnest) and D remembered the gun, deliberately took it down,
and fired it. His testimony proves deliberation.
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o TIME BETWEEN KILLING AND PREMEDITATION CAN BE SHORT OR
INSTANTANEOUS.
Commonwealth v. Guthrie – briefed separately
o Facts – D was being made fun of by a co-worker. After more making fun of, D
pulled out a knife and stabbed V in the neck, killing him. Jury instructions said
that it was only necessary that intentions should come into existence for the first
time at the killing (instantaneous)
o Issue – were jury instructions wrong? Can intent and killing come at the same
time?
o Holding – Jury instructions wrong, there has to be an appreciable time between
thought and action ---- opposite of Carroll!
P 435 Note 1: 3 factors
o Planning
o Motive
o Manner
Provocation – diff btwn murder and manslaughter
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Voluntary manslaughter
o Intentional killing
o BUT has adequate provocation
o Common law:
 Sudden intense passion
 More than words
 No lengthy cooling off period
 Causation
MPC – reasonableness from viewpoint of person
Ways to deal with differences:
o Not permit the evidence
o Permit the evidence but limit its use for the jury
o Openly admit the evidence
Standard is subjective for provocation
Objective standard for control expected
Account for nationality?
o Not in Queen v. Zhang
 Dissent – discrimination/injustice?
Battered women
o Not accounted for
Mental disorders
o Evidence sometimes admissible, sometimes not
 War veteran ---> yes
Different standard for age/sex
Maher v. People – briefed separately
o Facts – D convicted of assault with intent to kill after he saw his wife go into the
woods with the V and afterwards at the entrance of a bar was told by someone
15
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else that they have had sex, D shot V and created a through and through wound
but he didn't die.
o Issue – Was it wrong by the trial court to exclude the cheating information for the
D to try and establish provocation?
o Holding – yes, the cheating information should have been provided. Jury needs to
hear that evidence and decide (1) was the provocation enough and (2) did he have
too much cooling of time?
o Rule - if the intentional act was committed under the influence of passion or in
heat of blood produced by reasonable provocation, it is less heinous and should be
manslaughter.
o Uses the reasonable person standard.
o Sexual infidelity as provocation:
 Adequate, traditionally
 Is caught in the act
 If intercourse
 Cooling off time not long.
Girouard v. State – briefed separately
o Facts – D and V were in fight and V repeatedly yelled horrible things at D like "I
never did want to marry you, you are a lousy fuck, you remind me of my dad,"
etc. D then stabbed her 19 times to death.
o Issue – are words enough to establish provocation?
o Holding – words are not enough, there needs to be intention to cause harm in the
provocation.
Cooling off period
o Most courts hold that if there was a sufficient cooling off period, no provocation
People v. Casassa – briefed separately MPC approach
o Facts – D met V at their apartment complex. They went on a couple of dates but
V said she wasn't falling in love with him. Despite multiple psychological issues
of D, D proceeding to stalk V for months. One night he brought her alcohol as a
gift and when she refused he stabbed her and killed her.
o Issue – at the time of the killing was the D acting under the influence of "extreme
emotional disturbance"?
o Rule - extreme emotional disturbance is an affirmative defense to second degree
murder
o Holding – extreme emotional disturbance should not have been heard here and
mitigation is not appropriate because there must be a reasonable explanation or
excuse for a particular emotional disturbance, and there was not. There was also
substantial time between the provocation (her initial turn-down) and the killing.
o After proof of subjective ED ---> question for jury
Unintended killing – difference btwn civil and criminal
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Common law requires more than ordinary negligence
Commonwealth v. Welansky – briefed separately
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o Facts – match was lit at bar by employee to light a light that went out. The match
lit something near it on fire, fire spread. People could not get out because doors
were blocked and locked. Materials were not flame resistant, etc. Lots of ppl died
o Issue – was D wanton/reckless which would affirm conviction of voluntary
manslaughter?
o Holding – yes, D knew the doors were locked and blocked and didn't do anything
about it
o Wanton/recklessness – when there is a duty to act and there is a high degree of
likelihood that substantial harm will result
o Acting wantonly/recklessly versus acting negligently was what made this criminal
Rex v. Bateman
o Diff between civil/criminal is the disregard for life/safety
State v. Barnett
o Incompatible with proper regard for human life
Criminally, contributory negligence is not a defense!
People v. Hall – briefed separately
o Facts – D was skiing and killed someone by running into them. Witnesses all say
D was going way too fast and was out of control
o Issue – is there enough probable cause that Hall was reckless to submit to a jury?
o Rule – reckless manslaughter needs to have consciously disregarded a substantial
and unjustifiable risk that death could result
o Holding – yes, a jury should hear this because a reasonable person could have
agreed that hall consciously disregarded a substantial and unjustified risk that he
might kill another person
State v. Williams – briefed separately
o Facts – couple did not provide medical attention during critical time period for
their baby's tooth ache and the baby died. They were found guilty of manslaughter
and appeal.
o State statute at this time was that ordinary negligence is enough for manslaughter
o D's are guilty because court held that they should have been aware of the risk of
sickness and they were not
o Standard was raised after this, common law at the time required gross negligence,
but state statute trumps common law.
To determine punishment look at:
o Degree of risk
o Justification of the risk
o D's awareness of the risk – subjective v. objective
MPC fully rejects an individualized standard for negligence
Distinguishing manslaughter from murder
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Commonwealth v. Malone – briefed separately
o Facts – V agreed to play "Russian Poker" with D. D loaded 1 bullet to right of
firing pin, did not spin it, and fired 3 times, the last shot killing V.
o Issue – is this manslaughter or murder?
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o Rule – murder is distinguished by malice
o Holding – this is murder, the act was malicious and intentional and uncalled for
United States v. Fleming – briefed separately
o Facts – D was drunk driving 70-80 mph in a 30 mph zone and killed someone in a
head on collision
o Issue – manslaughter or murder?
o Rule –
 common law: involuntary manslaughter = gross negligence
 murder = recklessness
 malice can be established through behavior which is reckless and wanton
and a gross deviation from a reasonable standard of care
o Holding – this was murder, his driving indicated a gross disregard to human life
Felony murder
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Will be second degree(common law)
Intent doesn't matter
Strict liability
CA: p. 421
o Common law
o Specific crimes 1st degree
o Any other 2nd degree
NY: p 425
o More narrow
o Takes out inherently dangerous crimes
o Only for specific crimes
MPC: p. 1232 210.2
o Rejected, but not fully
o Gross recklessness
Reminder on malice: substantial risk taken
Example: person escaping from prison runs a stop sign killing someone
o CA – Not 1st deg, but probably 2nd, YES
o NY – 2nd, YES
o MPC – (1)(b) felonious escape, YES
What is different about these approaches?
o Strict liability
o No mens rea
o Substitutes intent of killing with intent to commit a crime
Why do we have felony murder?
o To deter
Problems:
o punishment disproportionate
o deterring unintended act
o presumption of knowledge of law
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o rare
Limits to felony murder:
o Foreseeability
o Some sort of mens rea requirement
o Specific felonies count
o Killing occurs during commission of a felony
o Who dies?
Regina v. Serne
o Justice Stephen states the rule as: murder can result when one kills another with
intent to commit a felony OR when the act is done with knowledge that the act
will probably cause the death of some person
o He doubts that the rule is that murder can be upheld when someone dies i.e. of a
heart attack during a robbery -----> later this is upheld
People v. Stamp
o Proves second point above – murder can result when one dies of a preexisting
condition that may have killed them anyway
o Strict liability
Principle use of felony-murder was to permit capital punishment
Causation needed
King v. Commonwealth, result needs to be foreseeable, airplane crash in drug deal
o Foreseeability read into most law
Felony --> death --> murder
Misdemeanor --> death --> involuntary manslaughter
England abolished felony-murder rule, but many American jurisdictions have kept it (all
but 3 states, including KY)
Killing needs to be "in furtherance" of the felony
3 sticky situations:
o Lethal acts after commission of felony
 i.e. while running away from robbing
 to convict, "after commission" acts need to be necessary to complete the
crime
o Lethal acts unrelated to the felony
 Second crime will induce felony murder
o Lethal acts by persons resisting the felony
3 theories of liability for felony-murder
o Proximate cause – liability for all deaths that occur
o Agency – if killing was done by another person (i.e. store owner), no felony
murder for that person who died
o Protected person – only when V is an innocent person
State v. Canola – not gone over in class yet
o Facts – D's were robbing jewelry store and store owner resisted. A second
conspirator was called to help and opened fire, store owner returned fire. Both
died.
o Issue – can D be held liable for death of co-conspirator?
o Rule – agency theory: felony murder does not extend if the killing is attributable
to the act of someone other than the D's in the unlawful act
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o Holding – no, D not liable for co conspirators death
Chapter 6: The Significance of Resulting Harm
A. Causation
Foreseeability and coincidence
 Prosecution to prove beyond a reasonable doubt
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 Causation issue will come up most in result (conduct) crime i.e. homicide
 Factual cause ( actual, cause-in-fact, but-for cause)
o Necessary conditions for liability – but not sufficient by itself
o Treated as invariable (MPC 2.03(1)(a))
o But for the voluntary action, would the harm have occurred?
 If no, D is the cause
o 1 exception to necessity rule:
 Substantial factor test: 2 acts, either of which alone would cause death,
both are liable.
 Also need mens rea and proximate cause
 Proximate cause (legal cause) - Proximate cause is whether a result reasonably should
have been foreseeable to the defendant at the time of the event, because it was the direct
and natural result of her actions.
o Most cases only regard proximate cause
o All D's who are proximate cause have to be factual cause of result, but one can be
factual cause and not proximate cause
o Proximate cause
 Reasonable Foreseeability (touchstone of proximate cause
 Eexclude extraordinary results (Acosta)
 Direct and natural result (Kevorkian) used most
o MPC – strict liability result must be probable consequence
 People v. Acosta – briefed separately
o Facts – D stole car and led police chase for 48 miles. A helicopter crashed during
the chase, and it had violated regulations while in the air
o Issue – is D liable for the deaths of the pilots in the helicopter?
o Rule – proximate cause will be determined through foreseeability. To determine
foreseeabiliy, exclude extraordinary results
o Holding – the result was foreseeable, but D did not possess requisite malicious
mens rea, so found not liable. The emotional dynamics of any police chase can
cause lack of good decision making.
 People v. Arzon – briefed separately
o Facts – D set fire to couch on 5th floor. Another fire broke out on 2nd floor not
from D. Firefighter died in building.
o Issue – is D liable when there was another fire that D didn't cause?
o Rule – there needs to be a sufficiently direct cause of death
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o Holding – D is responsible because it was foreseeable that the firemen would be
exposed to this damage, and D placed V in this position.
People v. Warner-Lambert – prob. not decided correctly!!
o Facts – explosion at plant that D was warned about by insurance
o Dismissed indictment for insufficient evidence to establish the foreseeability of
the immediate triggering cause of explosion
 Not foreseeable bc dont know exact trigger of explosion
Transferred intent – always applies! Killing 1 by mistake, meant to kill another
o State of mind transfers to victim, regarding the intended victim.
o "intent follows the bullet"
o Has to be the same social harm
Subsequent human action (intervening acts)
 Proximate cause is broken only by intervention of a superceding factor, an intervening
cause
o Intervening cause is:
 another “but-for” cause;
 Independent force
 Comes into play after defendant’s act/omission
 Operates in producing social harm
 God
 3rd party
 Victim act or omission
 When is it fair to hold D responsible when there is an intervening act?
 Factors in determining intervening cause:
o Direct - If D’s act is direct cause of social harm, D is proximate cause
o Indirect - If there is one or more intervening causes, whether D is criminally
liable depends on how court characterizes the intervening cause:
 Dependent - If intervening cause dependent on D’s action, D liable unless
intervening cause is unusual or bizarre
 Independent - : If intervening cause is independent, D not liable unless
intervening cause is foreseeable
 De minimus – If D’s act was de minimis contribution to social harm, unfair to hold D
liable.
 Intended consequences doctrine
o If intentional wrongdoer gets what she wanted, gets result she wanted in manner
in which she wanted it, she should not escape liability even if unforeseen event
intervenes.
 People v. Campbell – 1983
o Facts: D gave V gun and encouraged him to kill himself, later V killed himself. D
charged with murder.
o Rule: suicide excluded from homicide, doesn't include enticing
o Holding – D did not commit a criminal act under the law, V was uncoerced
 Not guilty of murder for assisting suicide as long as deceased was mentally responsible
and not forced or deceived.
 If A placed B in a predicament, although voluntary act, won't negate liability
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o Ppl v. Kern – running from D and ran across highway and was hit and killed.
People v. Kevorkian – briefed separately
o Facts – D made suicide machine and in two ways helped two women kill
themselves.
o Issue – is D guilty of murder?
o Holding – No because their death was not held a causal result. Causation link
broken. Distinction between active participation and active participation. D only
furnished the means.
Stephenson v. State – briefed separately
o D abducted V and while she was under his control she bought poison and took it.
Later she died as a result of taking the poison in combination with her other
injuries.
o Issue – Is D guilty of murder?
o Holding – Yes, the result was a natural and probable consequence of the d's
actions. She was under his control so causal chain not broken. Similar to Rex v.
valade when V jumped out of window to get away from D and died.
If the victim is acting in voluntary, knowing, and intelligent manner, or making free,
deliberate and informed decision, D will be relived of culpability by breaking the causal
chain.
B. Attempts
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Trying and failing, process of trying, those who try but are mistaken because crime is
impossible
Has to have intent to kill with attempted murder
Requires conduct and mental state, not always causation
Transferred intent:
o Does not transfer for incohate crimes (i.e. attempt to kill)
o Intent does transfer for completed crimes
Opinions on punishment for attempt:
o Feinberg – punishment equal to bad deserts, or blameworthiness, not result
o Gruber – no victim, no harm, different response should be had
o Schulofer – community demand for punishment not as aroused
MPC 5.05(1)
o Attempt will be the same degree and grade as the completed offense
No such thing as attempted felony-murder or attempted involuntary manslaughter
o There IS attempted voluntary manslaughter
Smallwood v. State – briefed separately
o Facts – D assaulted and raped 3 V's when he knowingly had HIV
o Issue – did D possess the requisite intent to kill to convict him of attempted
murder?
o Holding – No, D no proof of intent to kill, like explicit words or actions
o Specific intent or purpose is required, even if completed crime requires a lesser
mens rea
People v. Rizzo – briefed separately
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o Facts – D was trying to rob someone but couldn't find them. Had guns and had
intent
o Issue – can D's acts be considered attempt or only preparation?
o Holding – D not liable because of the physical proximity test. D was not near
intended victim and had not found the person yet. Just preparation
o Physical proximity rule
The tests: jurisdiction picks
o Last act
o Indispensible element
o But-for
o Abnormal step
o Unequivocality test
o Dangerous proximity test
o MPC – substantial step (KY)
Abandonment – only affirmative defense to attempt
o Must be voluntary and complete
o Only if preparation/attempt line has been crossed do we talk about abandonment
o MPC is fairly alone in having an abandonment defense
Under MPC, act or omission can count as substantial step
McQuirter v. State – briefed separately
o Facts – according to V, D following her for a period of time.... that is really it!
Police testify that while in custody he admitted to wanting to kill V
o Issue – Did D have necessary intent needed to commit these crimes of attempted
assault and rape?
o Holding – YES, injustice!!! Jury was satisfied, probably mainly bc of police
testimony, that beyond a reasonable doubt D intended to have sex with V. Ct
holds this was not an unreasonable conclusion.
o Possible tests:
 Unequivocality?
 Dangerous proximity?
 Miller test – with certainty, acts speak for themselves?
Stalking – requires credible threat
US v. Jackson – briefed separately
o Facts – D along with others planned to rob a bank. They were arrested before they
did anything, but had guns, shells, masks, and handcuffs in the car.
o Issue – were D' actions attempts or mere preparation?
o Holding – D guilty. They had taken a substantial step and had the culpability
required. There was no lawful purpose for them to have been where they were and
doing what they were doing.
o Rule – MPC – D needs to be acting with kind of culpability required by the crime
and taken a substantial step toward the crime
Solicitation
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Tried but not attempted, someone else to commit
23
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P 1220 5.02 solicitation MPC
o D only guilty of ONE incohate (step toward commission of another cirme) crime
 Attempt
 Solicitation
 Conspiracy
How is attempt different from solicitation
o New person
o Asking/requiring/inviting someone else to commit a crime for you
o Attempt more serious because you will do it
At time of asking, solicitation complete
Common law – solicitation is its own crime
o Now a lot of states have general solicitation statutes modeled on MPC 5.02
States differ on whether or not solicitation can count as an attempt
State v. Davis – briefed separately
o Facts – D planned to kill lover's husband and had met with undercover cop to plan
the murder.
o Issue – is D guilty of attempted murder?
o Rule – an overt act needs to be commited constituting an element of the crime
(actus reus)
o Holding – D not guilty of attempted murder, but probably solicitation because D
took no over action to constitute the actus reus of murder, employment of Dill
does not count because he did no more than listen to the plans
o If Dill committed the murder, he would be guilty of murder, D of solicitation, Dill
would have been an intervener
o If Davis gave innocent person bomb to take to house, D guilty of murder or
attempt
 But if person knew it was a bomb, causal connection broken
Impossibility
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People v. Jaffe – briefed separately
o Facts – D tried to possess stolen items which he thought were stolen but were not
actually stolen
o Issue – can D be convicted of attempt to possess stolen items?
o Holding - No, legal impossibility, you cannot possess stolen items that are not
actually stolen
People v. Dlugash – briefed separately
o Facts – D shot V after a third person shot V. Evidence shows that D thought V
was still alive
o Issue – can D be guilty of attempted murder?
o Rule – MPC – a person is guilty of attempt when, with intent to commit a crime,
he engages in conduct which tends to effect the commission of that crime and if
the crime would have been committed had the circumstances been as such person
believed them to be
 MPC does not discuss legal or factual impossibility – more about what's in
D's mind
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o Holding – D guilty of attempted murder bc he believed that V was still alive.
Common law:
o Factual impossibility – attempts misfire because of poor aim or inadequate
weapon
 Courts usually deny this defense
o Legal impossibility – what actor plans to do is not actually a crime, unbeknownst
to the criminal
 i.e. shoot apple thinking it's a crime, not guilty bc shooting an apple is not
a crime
 courts usually ALLOW this defense
Chapter 8 – Exculpation
A. Justification and Excuse
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3 defenses for a crime
o Failed to establish elements of a crime
 Prosecution has BOP for beyond a reasonable doubt and to disprove
rebuttal defenses
o Justification
o Excuse
JL Austin
o Justification – admit responsibility but deny it was bad
 i.e. self defense, defense of others, necessity
 looking at act
 burden on prosecution to disprove justification
 third parties can assist, but not interfere with justified conduct
o Excuse – admit bad but don't accept full responsibility (personal exemption)
 i.e. insanity, duress, intoxication, diminished capacity
 looking at actor
 BOP depends on the excuse
 Third parties may not assist, but may interfere with conduct that's excused
or wrongful
Justification ---> looking at the act
Excuse ---> looking at the actor
B. Principles of justification
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Self defense is main issue – on exam, these are the 4 issues to be addressed within self
defense!!!
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o Imminence
o Proportionality
 MPC – deadly force can be met with deadly force, otherwise not permitted
o Duty to retreat – decreases violence
 If you can safely retreat, you must
 Stand your ground is exception
o Reasonable belief
 Subjective or objective?
 Most courts adopt objective standards
P 1209 3.04 MPC use of force:
o Force immediately necessary on present occasion to protect from predecessor
o For death, serious bodily injury, rape, kidnapping (2)(b)
o Subjective?
MPC 3.09(2) - If reasonable force not required but used, lesser charge like negligent or
reckless homicide
People v. Goetz – briefed separately
o Facts – D shoots 4 minors on a train in NYC, one of which demanded 5 dollars.
Prosecutor gave subjective instructions on reasonableness of perceived threat
o Issue – D guilty of attempted murder? Jury instructions correct?
o Holding – Jury instructions should have been objective, MPC is subjective, this
court has not adopted that standard.
o Jury failed to convicted anyway
Battered women
 State v. Kelly – briefed separately
o Facts – D married to V and D had been beaten regularly throughout their
marriage. D and V were walking on the street. There are different stories but D
says V attacked her, she got away but he came back at her and she stabbed him
with scissors and he died. Police said she was actually the aggressor.
o Issue – Should court have heard testimony abt battered womens syndrome? Did V
reasonably believe that she was in deadly harm?
o Holding – Testimony should have been allowed bc it could have been used to
show that D honestly believed she was in imminent danger of death. Would
helped to show the jury that she couldn't have actually left, like is often believed.
o Rule here was that deadly force not permitted until force is necessary to protect
oneself against death or serious bodily harm.
o Most courts today would let this in
 State v. Norman – briefed separately
o Facts – D and V married for 25 years. Entire time D was physically and
emotionally abused. D shot V in his sleep.
o Issue – was a defense of perfect self defense permissible here?
o Rule:
 Perfect self-defense: when evidence shows that at the time of the killing
the D reasonably believed it necessary to kill the V to save herself from
imminent death or great bodily harm
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Imperfect self-defense: when D is initial aggressor, or belief is
unreasonable
o Holding – Perfect self-defense instruction not permissible because fear of
imminent death or great bodily harm cannot stem from later expectations of death
or great bodily harm.
o Imminent must be immediate?
o Non-confrontational self-defense:
 Pose great challenge to self-defense claims
 Most courts refuse defense when D killed V in sleep.
o MPC relaxes imminence requirement
Battered women's syndrome can also be used as an excuse defense
Question on reasonableness:
o Not about reasonable battered women
o About what a reasonable person would believe in the need to kill to prevent
imminent harm. Jury determines, based on experiences, situation, battered
syndrome. P 841.
Scientific reliability of BW syndrome
o Some states include it by statute
o Overwhelmingly admitted by cts today
Other syndrome evidence
o PTSD not widely accepted
o Some courts apply BWS to support cases involving children who are abused by
their parents.
Duty to retreat – discussed mainly with deadly force
 Cts have been moving from strict retreat rules to no retreat rules
 Many common law decisions favor retreat rules
o Possibility of retreat considered in evaluating necessity
 Legislature is above courts in stand your ground laws
 Duty to retreat applies only when person knows they can do so completely safely.
 In home --> diff obligation – "dwelling exception"
o No duty to retreat – all american jurisdictions
o Some courts require co-occupants to flee, most don't
 MPC 3.04(2)(b)(ii)(1) – dwelling OR place of work (not by co-worker)
 US v. Peterson
o Facts – V drove behind D's house and was going to take windshield wipers from
car. D emerged from home and after a verbal exchange went inside to get his gun.
V was back at his car and about to leave when D came out and continued to yell at
and threaten V, so V got out of his car and grabbed a lug wrench. While walking
toward D, D shot V and V died.
o Issue – Does D have a valid defense of self-defense?
o Holding – No, when D self-generated the necessity to use force he became the
initial aggressor and was no longer entitled to a defense of self-defense
 D no longer free from fault. D did not communicate withdrawal.
 When D is non lethal most jurisd tend to deny initial aggressor even a limited means of
escape.. ?
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Common law – free from fault keep the right to SD.
Emotional processes affecting determination to use force
o Doctrines of use of force may be flawed here
Property
 Common law: only use deadly force to stop a felony (in robbery determined by value of
item being stolen), not misdemeanor
o Some courts read in atrociousness with the felony.
 Some jurisd allow any level of force, even deadly, when intruder comes into home and
even car.
 People v. Ceballos – briefed separately
o Facts – D set up automatic gun to shoot whoever had been breaking into his
garage. V was shot, not killed, when trying to break in and steal items.
o Issue – D justified in using the trap gun to protect his property?
o Rule here – when the person would have been justified to use the force he did in
person, he is justified to use it while he is not in person.
 Homicide is justifiable when other is committing a felony, when in
defense of property by one using surprise or violence.
o Holding – NO, D guilty and has no self defense. The court reads in atrociousness
here, so not only does the V have to be committing a felony but it has to be
"atrocious" and it was not. The robbery did not reasonably create fear of great
bodily harm
o Some courts follow Ceballos, some courts follow Gillian
 Gillian (bottom p 873) – can do directly what can do indirectly --- but still
ask if it's atrocious.
 MPC 3.06 (3)(d)
3. Choice of the lesser evil – NECESSITY
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"Choice of evils"
19 states have necessity defense
Common law requirements for necessity defense:
o Threat of imminent danger
o Objectively reasonable understanding that actions will be effective
o No other alternative
o Harm caused cannot be greater than harm avoided
o D must have "clean hands" – can't have put himself in the situation
o Can't use for homicide
o KY has no clean hands requirement
People v. Unger – briefed separately
o Facts – D escaped prison to avoid being raped
o Issue – was D entitled to jury instruction on necessity?
o Holding – YES, reversed to allow jury instruction on necessity. Court here
concludes that all prongs of the lovercamp test are not necessary, but should be
weighed for credibility of D and are for a jury to evaluate
28

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o Lovercamp test:
 Prisoner is faced with a specific threat of death, forcible sexual attack or
substantial bodily injury in immediate future
 There is no time for a complaint to the authorities,
 There is no time or opportunity to resort to the courts,
 There is no evidence of force or violence toward innocent persons in the
escape,
 The prisoner immediately reports.
MPC 3.02 - justification – choice of evils
o There are a # of limitations
o Harm avoided needs to be < harm caused
Imminence requirement? – not an absolute requirement
"clean hands"
o NY denies the defense when actor is at fault. MPC? P 892
Can you assert the defense of necessity when underlying crime does not require mens rea
(strict liability)?
o Or when crime is reckless or negligent?
Medical necessity
o Courts differ on what's allowed
Economic necessity
o Many courts are hostile toward claims of economic necessity
o Difficulty in weighing costs
C. Excuses




3 most important excuses:
o Duress
o Intoxication
o Mental disorder
Focus on ACTOR, not the act
o Result might be harmful, but D not culpable
Disability can be internal/external, temporary/permanent
3 categories:
o Involuntary actions
o Cognitive deficiencies
o Volitional deficiencies (meaningful control over behavior)
2. Duress


Diff btwn duress and necessity
o Duress – invoked by human coercion, not applicable to natural events
o Necessity – some jurisdictions only use in response to natural event
Issues with duress:
o What level of threats will suffice?
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o Imminence required?
o Certain defenses excluded
o Subjective or objective?
State v. Toscano – briefed separately
o Facts – man threatened D and his family if D did not fill out fake medical reports
so that man could falsely collect insurance money
o Issue – was D under sufficient duress to warrant a jury instruction on the defense?
o NJ has no statute on duress, so common law says there needs to be imminence
and apprehension of death or serious harm, not allowed in murder
o MPC does not require imminence or that level of harm
o Holding – instruction on duress should have been submitted. This court will adopt
the MPC standard? No imminence, does not have to be death threat.
o A jury may have found that someone in D's position would have been reasonably
induced.
MPC on duress – objective "person of reasonable firmness in his situation" would have
done the same
o Greater evil sought than done 3.02
o 2.01(a) involuntary action
Common law – denies duress for murder
o Only threat of death or serious bodily harm gives rise to a duress defense
MPC – allows for murder
US v. Fleming
o D convicted of collaborating with the enemy
o Defense of duress not allowed bc threats to him were not imminent/immediate
US v. Contento-Pachon
o Duress defense could be used bc it could be reasonable for one to believe that D
could not reasonably escape with his family
o Threats were not vague threats of future harm
 Person was deeply involved in the drug trade.
Duress – D lacks mens rea
o So can duress be a defense to strict liability crimes?
Generally, cannot use duress defense when you put yourself in a situation where you will
be expected to do the thing you are coerced into doing
o i.e. joining a gang
4. Mental disorder – insanity defense

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Punishing becomes ineffective and does not deter one when you don't know that what
you're doing is wrong
3 terms to distinguish:
o Mental illness – medical term for diagnosing, broader
o Insanity – legal term to define mental state at time of offense
o Incompetence – mental state at time of legal process
MPC 4.04 competence
o Who doesn't understand proceedings
30
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Most jurisdictions, defense has to raise the insanity defense
Standard of proof is high for civil commitment
Incompetence v. insanity
o Incompetence legal test: sufficient/present ability to consult with lawyer with
reasonable degree of rational understanding and factual understanding.
 Judged at TIME OF TRIAL
o Insanity – related to D's cognitive of volitional processes AT TIME OF CRIME
o Can have 1 without the other
Think about deterrence, punishment, rehabilitation
Not guilty by reason of insanity is extremely rare
o Consequences can be more severe than jail time would be
Tests for insanity:
M'Naughten
Test (22
states)
Irresistible
impulse
Durham
(Product test)
ALI/MPC (14
states)
Federal postHinkley test
Proof must
establish
(1) a disease of the
mind
(2) caused a defect
of reason
(3) such that
defendant lacked
the ability at the
time of his actions
to either:
(a) Understand the
nature and quality
of his actions or
(b) Know the
wrongfulness of his
actions
Proof must
establish that
because of mental
disease,
(1) she acted from
an irresistible and
uncontrollable
impulse,
(2) she lost power
to choose between
right and wrong, or
her will had been
otherwise so
destroyed such that
(3) she was unable
to control her
actions or to
conform her
conduct to the law.
Person is excused
if her unlawful
act was the
product of a
mental disease or
defect.
Proof shows:
Mental disease
and as a result
she lacked
substantial
capacity to either:
(1) Appreciate
the criminality
(or
wrongfulness) of
her conduct or
(2) Conform her
conduct to the
requirements of
law.
Proof shows:
Severe mental
disease or defect
such that
defendant lacked
the ability at the
time of his
actions to either:
(1) Appreciate
the nature and
quality of his
actions, or
(2) Appreciate
the wrongfulness
of his actions.
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BOP on D by preponderance of the evidence – affirmative defense, 20 % of states BOP
shifts back to prosecution to prove sanity beyond a reasonable doubt
BOP on D to prove sanity to get out of commitment
Clark v. Arizona
o Constitutional due process does not require this defense
 4 states don't have it
Blake v. United States – briefed separately
o Facts – D robbed bank and claimed he was insane when he did it. Jury were
instructed on insanity as per the M'Naughten rule.
o Issue – was the correct rule used to instruct on insanity?
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
o Holding – this court switched to the MPC definition because it included more
than cognition and also does not require "all or nothing", but instead a substantial
lack of capacity to understand.
United States v. Lyon – briefed separately
o Facts – D indicted on narcotics charge. He claims that his addiction led to
impairments of the brain that led him to be insane. Court would not allow
evidence of addiction in because it was not enough for mental defect or disease.
o Issue – should evidence of mental defect from an addiction be allowed?
o Holding – YES, this evidence would support a mental defect or disease, although
it stemmed from an addiction which is not recognized as a mental disease or
defect.
o This court overrules the MPC and makes new definition: a person is not
responsible for criminal conduct on the grounds of insanity only if at the time of
that conduct, as a result of mental disease or defect, he is unable to appreciate the
wrongfulness of that conduct. They do this bc doctors say that it is impossible to
measure self control, which is the volitional piece of the MPC.
d. Diminished capacity – mental disorder short of insanity, when can it be used?

SIDE NOTE: Excuse of intoxication
o Common law: resistant to evidence of intoxication as defense, but evolving to
allow to negate specific intent (not general)
o MPC – general resistance to intox as defense BUT can use it if it negates an
element of the defense for purpose or knowledge, not for reckless or negligent
behavior.
o Some states follow one, some another

Diminished capacity is not actually an affirmative defense, it's just saying that
prosecution did not meet burden of proof and D didn't have requisite mens rea.
Cts are reluctant because this will lead to many criminals getting off "going scott free" for
doing something very serious.
Court can sua sponte require insanity defense
US v. Brawner
o Issue – should evidence of mental health be admissible for reasons other than an
insanity defense?
o Holding – yes, testimony as to D's abnormal mental condition may be received
and considered to show that D did not have specific mental state required for the
crime. Not an affirmative defense.
 Judge determines whether the testimony is based on sufficient scientific
support
 Judge needs to see relevance, "no fishing expedition"
o Reasoning – drunkness is allowed.... so this should be allowed
 Battalino – not to reduce a crime, but to prove that D was absent of
specific intent.
Clark v. Arizona – briefed separately
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o Observational evidence, not expert, can come in
o Due process rights were NOT violated by barring evidence.
MPC and most states allow mental evidence to negate mens rea of a crime.
Restrictions include:
o Total ban (i.e. Arizona in Clark case)
o Capacity evidence
o Specific intent
 Evidence admissible for specific intent but not general intent crimes. BC
need lesser included offense so D is not off the hook
 Whetmore case – whether or not lesser included
Chapter 7: Group Criminality
Complicity = accessorial = accomplice liability ..... all the same thing
A. Accountability for the acts of others
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At common law (modern statutes have done away with these distinctions):
o Principal 1st degree – person who commits the crime
o Principal 2nd degree
 Present (actual or constructive... lookout/guard), provides assistance or
encouragement but does not commit the crime himself
o Accessory before the fact
 Commanded, counseled, aided, but not actively or constructively present
at the crime (i.e. give principal a weapon)
o Accessory after the fact
 Played no role during/after, but assisted after (hiding person, destroying
evidence)
 Intentional and positive behavior
Now:
o All people are subject to the same penalties and charges (now & MPC)
 EXCEPT – after the fact accessory
o Not a crime in itself, but a way to commit
MPC has eliminated distinctions above
o No longer does principal have to be convicted
 Just need evidence that the crime was committed
*Need intent to assist with the crime and provide some kind of actus reus
o Need intent to aid principal in commission of the crime
1. Mens rea
a) mens reas for actions of the principal
 Rule – to be an accessory D needs to have intended to aid or encourage the principal in
the commission of a crime
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Accomplice liability requires actus reus and mens rea
Hicks v. United States – briefed separately
o Need intent to encourage.
o Intent to use words will not suffice to find encouragement , they need to intend to
encourage the crime
o There was no evidence to find that there was a previous conspiracy that would
lead jury to see D's presence as evidence..
 Conspiracy + presence would have proven actus reus
State v. Gladstone – briefed separately
o Traditionally, need purpose
o Here, no evidence that D communicated to Kent or encouraged him to sell the
drugs. This was not enough
MPC proposal – p 666 "knowingly, substantially facilitate"
o P 1204 actual provision
b. mens rea for results and attendant circumstances
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Attendant circumstance example: in statutory rape the attendant circumstance would be
the age of the person.
Need 2 mens rea for accomplice liability
1. Intent/purpose to aid/encourage the offense
 As to the conduct
2. Mental state required for commission of the crime
 As to the attendant circumstance
o Strict liability crimes ---> YES would be liable under example with Shawn aiding
Paul in having sex with Veronica when she is underage and Shawn doesn't know
she is.
o Homicide is a flag for result crime.
You don't need to have intended the result, only the underlying conduct. Can only be
reckless or negligent toward the result.
o Different with results crime?
General rule that accomplice liability requires specific intent, but not necessarily to the
result.
State v. McVay – briefed separately
o D can be convicted because they had the intent/purpose for the conduct, not the
result.
Commonwealth v. Roebuck – briefed separately
o " " – D can be convicted when the aid in the malicious act that killed the V,
even though they didn't intend the result.
People v. Russel – briefed separately
o D was reckless toward conduct, voluntarily, so can be convicted when those
actions lead to death, even when the D doesn't cause the death.
o D's were also reckless in their own acts, too.
Natural and probably consequences theory
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
This test remains controversial and the majority of courts don't endorse it.
People v. Luparello
o D convicted when friend killed person D was looking for, even though underlying
conduct was not illegal. Conduct reasonable and foreseeable???
2. Actus Reus
a. encouragement
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Wilcox v. Jeffery – briefed separately
o Facts - D attended Hawkins' concert, which was illegal to perform. He bought a
ticket and did not "boo." D was charged with aiding and abetting the crime of
Hawkins' playing illegally.
o Issue – Did D's actions constitute aiding and abetting?
o Holding – YES, when D paid to go to the concert and did not boo, he was
encouraging Hawkins and this constitutes aiding and abetting.
o Causation is not required with aiding and abetting
 It is extremely difficult to prove
 D is morally blameworthy and punishment would deter his and others
similar acitons.
Encouragement makes the crime more likely to occur
o But-for causation NOT necessary
Facilitating the result is important for aiding and abetting
Common law –
o Cannot be an accessory to attempt
 Need to be proximately close
MPC –
o Need crime to happen
o Attempted aiding doesn't work
o Can be accomplice if D has legal duty to prevent the offense and fails to do so
with the purpose of promoting the crime.
o MPC need substantial step
State v. Tally
o Facts – D intercepted a telegram to warn someone that people were coming to kill
him.
o Issue – was D an accomplice to the murder?
o Holding – YES, attempts can be very small, D put the deceased at a disadvantage
and but-for cause is unneccessary.
There is an ABANDONMENT defense to aiding and abetting
o Requirements:
 Action wholly deprives the actor in the ability to commit the crime OR
 Timely notice is given to law enforcement about what's going on
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B. Conspiracy
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
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Key aspects:
o Inchoate crime
 Solicitation → request, conspiracy → agreement, attempt → beyond
preparation.
o A form of accessory liability
Conspiracy – the crime of agreeing with another to commit a criminal offense.
o LOLLAR – "Two or more people, agreement, and overt act (most jurisd)
 Specific intent crime ---- so no conspiracy negligently or recklessly
o Most jurisdictions require an overt act, as well.
o Is a separate and additional offense.
 Does not merge into completed crime like attempt and solicitation
Common law – felony to conspire to a misdemeanor
o Most states have changed this
 Cannot exceed punishment for conspired crime (maryland v. fed v. CL)
MPC – punishment for conspiracy = objective punishment except in the most serious
felonies. 5.05(1)
1. Actus Reus of Conspiracy



Actus reus = agreement itself
o Circumstantial evidence is enough, conspiracies are never in writing! Oral
agreements are likely unclear
Interstate Circuit v. United States – briefed separately
o Tacit agreement was enough to find agreement/conspiracy
o Circumstantial evidence
Over act requirement common (MPC 5.03(5))
o But commonly dispensed with in serious offenses (MPC 5.03(5))
2. The mens rea of conspiracy



People v. Lauria – briefed separately
o Intent could be inferred in 3 ways
 (1) the supplier has acquired a stake in the venture, (2) no legitimate use
for the goods/services exists, (3) the volume of business with the buyer is
grossly disproportionate to any legitimate demand, or is a high proportion
of the seller's total business
o If the crime is a felony, no need to analyze above.
o D did not intent to promote prostitution.
MPC – requires purpose for conspiracy (most states agree) and accomplice liability
2 mens rea required:
o Intent to agree
o Intent to promote the unlawful object of the conspiracy (this is the purpose)
36
3. Conspiracy as a form of accessorial liability



State v. Bridges
o A co-conspirator may be held liable for the commission of substantive crimes not
within the conspiracy if they are reasonably foreseen.
**Pinkerton v. United States – briefed separately**
o Facts – D and brother found guilty of substantive crimes and conspiracy. D's
brother did all of the work, D in jail during some of crimes
o Issue – can D be held liable for substantive crimes committed by his brother?
o Holding – YES An overt act of one partner may be the act of all without a new
agreement specifically regarding that act.
o They still have moral blameworthiness
o Crimes within scope of conspiracy or foreseeable.
MPC 5.03(1) rejects Pinkerton
o Embraces chain theory
 A needs to know about C, needs to be same crime
4. Duration and scope of conspiracy

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Government will argue for one big conspiracy
o D will argue for many small because the consequence will be less when you are
responsible for less.
Basic rule – conspiracy remains in effect until its objectives have been completed or
abandoned
o SOL begins once conspiracy terminates
Most states refuse to infer that implicit agreement to cover up crime is inherent in every
conspiracy
Common law - conspiracy can be under anything "unlawful"
o Most states --- only criminal objectives can be conspired.
SCt holds that conspiracy remains when impossible.
Conspiracy abandoned – none of conspirators are furthering the objective MPC 5.03(7)
o Communication of abandonment must be direct
Renunciation a complete defense?
o CL – no
o MPC – sometimes MPC 5.03(6)
 Communication of renunciation + prevents commission of crimes
Sentencing
o CL – consecutive sentences for crime + conspiracy
o MPC – conspiracy + crime only when conspiracy is for more than crime
convicted
5. Single or multiple conspiracies


Chain v. spoke
Kotteakos v. United States – briefed separately
37






o Facts – D was committing mortgage fraud. This was a "spoke" case. None of the
other D's knew each other.
o Issue – can all D's be found to have conspired with all D's?
o Holding – no, D's weren't dependent on one another for their success.
o Knowledge of the other's possible existence not enough here (but was in
Anderson)
Anderson v. Superior Court
o D referring people to doctor for abortions
o To many, seems incorrect
o Presumed knowledge
o Knowledge that other things were going on was enough to form conspiracy
US v. Bruno
o Holding – there was 1 conspiracy rather than many because each end knew that
the scheme could not take place without the other end.
o They were interdependent on one another
o Smuggler → middlemen → retailers
US v. Borelli: a sale or purchase scarcely constitutes inferment of an agreement to
cooperate with opposite parties.
US v. McDermott – briefed separately
o Facts – D having an affair with girl and sharing insider trading details. Girl shared
with her other boyfriend who D didn't know about
o Issue – can D be guilty of a conspiracy with the other guy?
o Holding – no, D did not know the info was getting passed on.
o Rule formed – if it is foreseeable that something will get passed on or if you know
another person is involved, conspiracy will be found.
Separate crimes, separate conspiracies
New member can be convicted of conspiracy for crimes that have already been going on
as long as they are within the scope of the conspiracy he entered into and even though
already committed
o Not for substantive crimes
38