Roadmap for Criminal Statute
I.
Actus Reus
a. Voluntary Act Requirement
b. Omissions
II.
Mens Rea
a. CL
i. Specific vs. General Intent
b. MPC
i. Purpose, Knowledge, Reckless, Negligent
c. Mistake of Fact
i. Strict Liability
d. Mistake of Law
i. Collateral Mistake of Fact
ii. Official Reliance
III.
Homicide
a. Murder
i. Malica Aforethought
1. Willful, Deliberate, Premediated
2. Depraved Heart / Reckless Disregard
3. Felony Murder
a. Abstract – doesn’t meet inherently dangerous if there’s a
way to violate the statute in a non-dangerous way
b. As Committed
c. Actus – Agency or Proximate Cause Theory
b. Manslaughter
i. Provocation / Emotional Disturbance
ii. Reckless / Negligence
IV.
Attempt
a. Actus – CL Test or MPC Substantial Step
b. Mens – Purpose to do the crime
V.
Complicity
VI.
Defenses
a. Justification
i. Self-Defense
b. Excuse
i. Self-Defense
ii. Insanity
Note: Unless facts say a state has a given rule, note with “if state has adopted…”
- Ex: MPC on silent mens rea
- Ex: Felony Murder
I.
Basics
a. In re Winship (US 1970) – preponderance of the evidence standard is not
constitutionally permissible in criminal cases
i. Important for individuals to know the gov cannot convict without
certainty
ii. Concurrence – better a guilty man go free than an innocent man be
convicted
b. Standard must be clearly explained to juries or else they will more readily
convict, but attempts to quantify it or too much of a definition will get tossed out
i. Current Language – jury “cannot feel an abiding conviction of the truth of
the charge”
1. Replaced “moral certainty” but some states still use this language
a. Commonwealth v. Russell (MA 2015) – “moral certainty” is
“the highest degree of certainty possible in matters
relating to human affairs”
b. “Firmly convinced” language may lead to better
differentiation of strong and weak cases but still may
convict 1/3 of the time when even preponderance of
evidence is not met
ii. McCullugh v. State (NV 1983) – Reversed jury instruction that put beyond
a reasonable doubt at a 7.5 out of 10.
1. Attempts to quantify a qualitative standard only confuses the jury
iii. In re As. H (D.C. 2004) – witness’ certainty of 70-80% not enough as a
matter of law
iv. Cage v. Louisiana (US 1990) – using terms like “grave uncertainty” or
“most certainly” distorted standard
v. United States v. Walton (4th Cir. 2000) – Upheld conviction that came
after a judge denied a jury request for a definition of “beyond a
reasonable doubt” because a definition would confuse rather than clarify
Two Parts of any Criminal Statute:
I.
Actus Reus - Conduct
II.
Mens Rea – Mental Culpability
Actus Reus
I.
Intro
a. Fundamental Principle – criminal liability requires voluntary “actus reus”
forbidden by law
b. MPC 1.13(2) – “Act” is a bodily movement, whether voluntary or involuntary
II.
The Voluntary Action Requirement – satisfying a criminal element must be with a
voluntary act or omission; inherent in every crime
a. MPC
i. 2.01(1) – Voluntary Act Requirement
ii. 2.01(2) – Exceptions
b. A necessary, but not sufficient, condition of criminal liability
i. Involuntary acts are NEVER blameworthy
ii. Also need to fulfill Mens Rea
c. Martin v. State (AL 1944) – Reversed D’s conviction for being drunk in public
because police took him out into public
i. Plain text of the statute presumed a voluntary appearance in public, so
cannot be convicted if the appearance is involuntary
ii. Note: But D getting drunk was voluntary
d. Bringing Controlled Substance into Jail
i. People v. Low (CA 2010) – Uphold conviction of knowingly bringing a
controlled substance into a jail when D was arrested for driving a stolen
car and drugs were found on him during the jail search because he had
the opportunity to voluntarily relinquish the drugs
1. State v. Barnes (NC 2013) – necessary voluntary act occurs when
D knowingly possesses a controlled substance (similar facts to
Low)
2. State v. Eaton (WA 2010) – better approach. On similar facts to
Low, no voluntary act because D had no available choice besides
surrendering drugs that would be used to convict him of a
different crime – not finding a voluntary requirement in the
statute would lead to absurd results
e. Existence
i. Jones v. City of Los Angeles (9th Cir. 2006) – “Being” cannot be a
voluntary act in context of ordinance criminalizing sitting, lying, sleeping
on streets when there are not enough beds for the homeless
1. Dissent – ordinance targeted conduct, not “being”
ii. United States v. Macias (2nd Cir 2014) – Reversed conviction for being
voluntarily present in the US illegally when an undocumented D tried to
get from NY to Canada, and Canada returned him to NY in handcuffs
1. United States v. Ambrie-Amrbic (9th Cir 2009) – upheld a
conviction under similar facts because D was never legally in
Canada, so therefore never legally left the US
f. Unconsciousness
i. People v. Newton (CA 1970) – unconsciousness is a complete defense so
long as it is not self-induced, and unconsciousness does not require
total physical incapacitation, merely that physical acts are not conscious
1. Medical evidence supports D’s claim that the gunshot would
cause him to lose consciousness, so his shooting the officers after
he was shot was not voluntary
ii. Policy of Voluntary Act Requirement
1. MPC Comment – Civilized society does not punish mere thoughts
2. Cognitationis Poenam Nemo Patitur – no one is punishable solely
for thoughts
a. Blackstone – thoughts can never be as strong evidence as
acts
b. Stephen (1883) – if thoughts were crimes everyone would
be a criminal
iii. MPC Examples – meaning in criminal law differs from everyday use
1. “Irresistible impulse” is voluntary
2. Bratty v. Attorney General (HI 1961) – “I didn’t mean to” is not a
defense against an unintended consequence of a voluntary act
3. Habitual actions without thought are voluntary
4. Acts under hypnosis are NOT voluntary
5. Somnambulism
a. Traditional and CL Rule - Cogdan case – mother acquitted
for killing daughter in lucid dream, supported by medical
evidence
b. Recent Developments:
i. R. v. Parks (Canada 1992) – D drove to his inlaws
house and killed them all while in a state of sleep.
Defense properly treated as an involuntary act
ii. R. v. Lucdecke (Canada 2005) – D acquitted for
sexual assault he committed while asleep, as
supported by medical evidence
6. People v. Decina (NE 1956) – D may be liable for killing four
people when D suffered an epileptic seizure while driving
because D voluntarily drove while knowing he could have a
seizure
iv. Timeframe
1. Kelman (1991) – Martin still “works” when cases like Decina
expand the time frame of voluntary acts because hard points
disappear in initial interpretation of construction of facts
2. Moore (1993) – Base time framing on proximate cause.
III.
a. D liable if at any point act and mens rea are
simultaneously satisfied and a causal relationship exists
b. In Martin, no proximate cause between drinking and being
in public
v. Framework matters in determining burden of proof and disposition
1. Murphy – two causes of “misfire” in human activity
a. Accident or duress
b. Basic convulsions, reflex movements, somnambulism
(sleep walking) we don’t even view as human activity
i. Excuse framework makes no more sense than
excusing a rock for falling on your land
Omissions – Failures to Act
a. MPC
i. 2.01(3) – Requirement for Liability for Omissions
ii. 2.01(4) – When possession is an omission
b. Basic Doctrine – D must breach a legal duty to be liable for an omission
i. Two Requirements of Omission Doctrine:
1. Legal Duty to act or statute specifically criminalizes inaction, and
2. Voluntary failure to act
c. Legal Duty
i. Jones v. United States – A legal duty is required to hold a D liable for an
omission; Failure to fulfill such a duty can be a crime
1. D, a family friend of a mother, had no legal duty to take care of a
baby
2. Criminal liability cannot be based on a voluntary omission
unless:
a. Legal Duty from a source other than the specific criminal
statute at issue. 4 sources of legal duty:
i. Another statute imposes a duty of care for
another
1. Ex: teachers have duty to look after
students
ii. Certain relationships
1. (ex: parent-child; master-apprentice;
innkeeper-guest)
iii. Contractual duty to care for another
iv. Voluntarily assumed care of another and secluded
them so others could not provide aid
v. (Possible 5th) – Creates risk of harm
b. Statute expressly criminalizes omission
ii. Commonwealth v. Destinikas (PA 1992) – D convicted of M3 when D
permitted a 92 year-old to starve to death after agreeing to feed him
because D refused aid with full knowledge of the great risk of death there
was no other way to get aid to the man
iii. Duties Triggered by Special Relationship
1. Family Members
a. Parents –> Minor Children
b. Spouse –> Spouse
c. Mothers -> Children
i. Commonwealth v. Cardwell (PA 1886) – Legal duty
has no meaning if D does not take steps
“reasonably calculated to achieve success”
1. Upheld convicting a mother of child abuse
when she took little action to prevent her
child from being sexually abused by her
husband
d. No Duty:
i. Sibling –> Sibling
ii. Adult Children -> Parent
e. Broad Statutory Family Duties
i. Bartley v. Commonwealth (KY 2013) – Duty
between parents and adult children with
permanent disability
ii. State v. Gargus (MO 2013) – Adult Children have a
duty to their elderly parent if the parent cannot
care for themselves and the child assumed
responsibility
2. De Facto Family Members
a. People v. Beardsley (MI 1907) – married man owed no
legal duty to his mistress
i. Slippery slope of what counts as a “close relation”
b. People v. Carroll (NY 1999) – Indictment upheld because a
stepmother owed a legal duty to a stepchild
i. Functionally a parent
c. Staples v. Commonwealth (KY 2014) – Adults owe legal
duties to children when adults assume a parent-like role
d. State v. Miranda (CT 2005) – live-In boyfriend who
assumed a parent-like role with regards to his girlfriend’s
child did not breach a legal duty when he failed to save the
child
i. More amorphous family relationships will
discourage well-meaning relatives from engaging if
they fear criminal liability
ii. Dissent – people who enter relationships involving
children are not dissuaded because of fear of
criminal liability
1. Holding does not advance a policy of
protecting children
3. Duty of one who creates another’s peril
a. Jones v. State (IN 1942) – one who puts another in a
position of drowning has a duty to preserve their life
b. Differentiation between:
i. State of mind when creating peril
ii. State of mind when failing to act
c. Pure Accidents – act creating danger bears no culpability
i. Smith – When D creates peril without his
knowledge and then becomes aware of the peril,
he has a duty to take reasonable steps to prevent
peril from resulting in harm
ii. Commonwealth v. Levesque (MA 2002) – Upheld
manslaughter conviction when D accidently started
a fire, but did not report it after becoming aware of
it and six firefighters died
1. Most jurisdictions would agree
iii. R. v. Evans (2009) – Uphold manslaughter
conviction when D provided heroin to her sister
and then failed to assist when she OD’ed
1. Victim chose to be placed in a dangerous
position, but D “contributed to” the peril
iv. Using Tort Liability:
1. State v. Lise (NJ 2008) – dismisses
indictment by saying Restatement of Torts
did not provide D with sufficient notice of a
duty that can be the basis of criminal
liability
iv. Possession – Act or Omission?
1. If It’s an omission, is there a duty to end possession?
2. Courts generally require a D to be aware of possession to be liable
a. Alt: State v. Bradshaw (WA 2004) – Upheld convicting
truckdriver of transporting 77 lbs. of marijuana without his
knowledge
3. MPC 2.01(4) – liable if aware for enough time to terminate
possession
4. Ramirez-Memije v. State (TX 2014) – D was delivering a device
that scanned customer CCs for future fraudulent purchases, but
mere possession of the device was enough to show D knew he
possessed stolen information
d. Bystander Indifference
i. Pope v. State (MD 1979) – Reverses a child abuse conviction when D
was hosting a child and mother, who D knew had mental illness, and D
did nothing to protect the child when the mother attacked and did not
seek obvious medical assistance as the child died
1. D satisfied causal element of statute, but not the relationship
element
a. Cruel to subject a Good Samaritan for abuse of a child she
sought to look after
b. Nothing in law says D assumed parental duties because
she knew about mother’s mental illness
2. Not seeking to help the child after the attack was moral failure,
but no legal duty existed
3. Takeaway: Anglo-American courts are hesitant to impose
liability
ii. Kiesel – social psychology confirms people are less likely to act if they
believe others can help
iii. Statutory Duty to Rescue
1. MN, RI, VT adopt the Livingston approach
2. More limited in FL, HI, WI – duty to rescue only when person in
peril if the victim of a crime
a. FL only applies to sexual batteries
3. Misdemeanor offenses, but prosecutions are rare
4. May create legal duties for other crimes of omission
a. State v. Martinez (HI 2003) – D can be convicted of
manslaughter for not seeking aid for a dying child because
the Good Samaritan law imposed a duty of care
5. Europe – longstanding duty to rescue laws
a. Motorists frequently prosecuted for not assisting accident
victims
iv. Duty to Report – Most US jurisdictions do not follow CL duty to report
1. US statute prohibits purposeful concealment of a felony
a. United States v. Brantley (11th Cir. 2015) – failure to
report is not enough, D needs to conceal a known felony
2. SD and OH – statutory duty to report known felonies
3. All US jurisdictions require certain professions to report child
abuse
e. Distinguishing Acts from Omissions – Line is unclear
i. Act – if D was not present, the victim would not have been harmed the
same way
ii. Omission – if D had not existed, harm would still have occurred
iii. Ending Medical Treatment – Killing or Letting Die?
1. A legislative answer would be nice
2. Barber v. Superior Court (CA 1983) – a Dr. withdrawing life
support from a patient in a permanent vegetative state with the
permission of family is not an act but an omission from further
treatment
a. Critical Issue: what duty does a Dr. owe a patient reliable
diagnosed as comatose with extreme unlikelihood of
regaining brain activity?
i. No duty to administer treatment that is futile in the
opinion of a qualified medical professional
3. Airedale NHS Trust v. Bland (House of Lords 1993) – law
distinguishes a doctor stopping treatment in accordance with a
patient’s will and administering a lethal drug
a. Treats ending life support as never beginning life support
4. Cruzan v. Director, MO Dep. of Public Health (US 1989) –
Constitutional right to refuse medical treatment
a. Applies to patients in a vegetative state if their will is
ascertainable
b. Scalia Concur – draw line not on action/inaction, but on
various types of inaction
Mens Rea – Mental State AT THE MOMENT OF THE ACT
I.
Intro
a. Culpable mental state
b. Blameworthiness entailed in charging to commit a criminal wrong
i. Blackstone – acts without vicious will cannot be criminal
II.
Old Fashioned Generalized Mens Rea – General Badness / “wickedness”
a. D knew he was doing SOMETHING wrong, so therefore he’s liable for all the bad
things that result
b. Flaws:
i. Imprecise
ii. Degrees are unclear
III.
Common Law Mens Rea – Culpability with respect to the offense in question
a. “Malice” needs to be for a specific offense – Mens rea for an offense
i. Regina v. Cunningham (QB 1957) – Malice as “Foresight of
consequences”
1. While D had mens rea for a robbery, that does not mean as a
matter of law that he had mens rea for the poisoning that was a
consequence of his robbery
a. Jury question to see if he foresaw removing the gas meter
resulting in poisoning
ii. Regina v. Faulkner (1877) – Felon is not by default responsible for all
felonious consequences of a felonious act; court must evaluate mens
rea for each offense
1. Sailor is not liable for accidently burning the ship down just
because he was culpable for trying to steal rum
a. Statute defines maliciousness as D knew an injury would
be a probable result of an unlawful act and he acted
anyway
iii. United States v. Grey (1st Cir. 2015) – Statutory and legislative history >
CL in determining the definition of “malicious” in a federal statute
b. Specific and General Intent
i. Specific – Actions done with a set purpose in mind
ii. General – Intent do act without a further purpose in mind
c. Read the statute to find listed mens rea
i. Elonis v. United States (US 2015) – Mens rea is required even if a statute
is silent on mens rea
1. P had to prove mens rea regarding the “threat” element of the
statute for interstate communication of threats to injure another;
can’t just apply a standard reasonable person standard from civil
law
a. Note: Using MPC as persuasive authority
2. Alito Concur/Dissent – If a statute is silent on mens rea, cannot
infer more than recklessness is needed
IV.
d. Negligence – Objective, reasonable person standard
i. State v. Hazelwood (AK 1997) – criminal negligence as gross deviation
from the ordinary standard of care in failing to perceive an unjustifiable
risk
1. D liable for negligently discharging petroleum into water by
running an oil tanker aground
2. Criminal Negligence requires more than Civil Negligence
3. Dissent – unfair to apply negligence to criminal law, civil
negligence and the risk of damages does enough to deter
ii. Santillanes v. New Mexico (NM 1993) - Reversed a negligence instruction
in a child abuse case because child abuse is a morally culpable crime, an
negligence is not a suitable mental state of moral culpability
e. Presumptions to prove intent and awareness:
i. D intended the natural and probable consequences of his acts
ii. Mandatory Presumptions – jury is required to draw these conclusions
unless evidence goes the other way; SCOTUS sets strict limits
1. Constitutionally OK is we have confidence that over all criminal
cases in general, the presumed fact will always be present when
the fact used to trigger that presumption is present
2. Francis v. Frank (US 1985) – old fashioned mandatory
presumption that person of sound mind and discretion intended
the natural and probably consequences of his acts is
unconstitutional since it is not true in all cases
iii. Permissible inferences – judge tells jury of a factional conclusion it can
draw
1. Allowed whenever a conclusion is more likely than not to be true
under circumstances of a particular case
a. Barnes v. United States (US 1973) – Upheld permissive
inference that possession of recently stolen property
without a good reason presents the inference that D knew
the property was stolen
Model Penal Code (MPC) Mens Rea – Adopted by half of states
a. MPC
i. 2.04(1) – Require Mens Rea for each material element
ii. 2.04(2) – Purpose, Knowledge, Reckless, Negligent
iii. 2.04(3) – Reckless as floor if a statute is silent on mens rea
iv. 2.04(4) – When a statute applies mens rea to only one element
v. 2.04(5) – Statutory Mens Rea as the floor
vi. 2.04(7) – Knowledge satisfied with knowledge of high high probability
when knowledge of a fact is an element unless D subjectively did not
believe it
vii. 2.04(8) – “Willful” = Acting “knowingly” unless statute suggests
otherwise
b. Overall Objective – Guilt aligns with mental culpability
c. MPC eliminates general intent, specific intent, and other ambiguous CL terms
d. MPC Categories of Mens Rea
i. Purpose - subjective
1. For conduct and result elements, “conscious object”
2. For circumstantial elements, requires knowledge of
circumstance or belief it is true
ii. Knowledge – Subjective
1. For conduct and circumstantial elements - “aware" of the effects
of one’s acts
2. For result elements, ‘practical certainty” for result
3. 2.02(7) – can be satisfied if D is aware of a high probability of
risk
iii. Recklessness – Conscious creation of an unlawful and unjustifiable risk
1. “conscious disregard” of a substantial and unjustifiable risk that
disregarding it is a “gross deviation” from the standard of a “law
abiding person”
a. A CHOICE to run with the risk
2. Hybrid of Objective and Subjective
a. Subjective knowledge of the risk
b. Objective “substantial and unjustifiable risk”
i. Some dispute if D needs subjective awareness of
this, but that would create problems where Ds
could get out because of overconfidence.
3. Requires:
a. Presence of Risk
b. Substantiality of the Risk
c. Unjustifiable Nature of the Risk
iv. Negligence – Inadvertent creation of a substantial and unjustifiable risk
that D ought to have been aware of
1. “should have been aware” of the substantial and unjustifiable
risk
2. Gross deviation from the objective reasonable person standard
a. Objectively should have known about the risk
e. Apply Mens Rea to each criminal element
i. Different than CL, which is concerned with the mens rea of the offense as
a whole
f. MPC Default Rule in case of statutory ambiguity:
i. 2.02(4) - If the statute applies a mens rea to one element, that mens rea
was meant to apply to all material elements unless a contrary purpose
clearly appears
1. Read the statute favoring a clear warning
ii. 2.02(3) - If the statute does not prescribe mens rea, each element at
least requires recklessness
1. Negligence must be expressly prescribed
2. Mens Rea is a floor – Can be guilty of a crime requiring
recklessness if D had knowledge
g. CL terms like “willful” still influential in federal law
i. Most often used to distinguish specific from general intent
h. Material Elements:
i. Conduct
ii. Attendant Circumstances
iii. Results
i. Willful Ignorance
i. Voisine v. United States (US 2016) – Recklessness as acting with another
state of mind respecting the act’s consequences; purpose to act with
knowledge of conscious objective
ii. United States v. Jewell (9th Cir 1976) – Deliberate ignorance does not
disprove knowledge if a D was not aware solely because of a conscious
purpose to avoid learning the truth
1. MPC as persuasive authority
2. D was caught transporting marijuana in a secret compartment in
his car, and there was some evidence D deliberately did not look
3. Permitting D’s argument as a defense would undercut US policy
about preventing drug smuggling
4. Dissent – Kennedy (Better Opinion) – Misapplies MPC in three
ways
a. Failed to mention that D could only be convicted if he was
aware of a high probability that drugs were in his car
i. Can’t form a conscious purpose to avoid the truth if
he was already aware of a high probability
b. Failed to tell the jury that D could not be convicted if he
subjectively did not know – MPC has a subjective test for
knowledge
c. Instruction said D could be convicted even if he was not
actually aware
i. True ignorance cannot be the basis for liability if a
statute calls for knowledge
iii. Willful Blindness “Ostrich” instructions are helpful to find knowledge
1. United States v. Goffer (2nd Cir 2013) – applied “ostrich”
instruction to an insider trading case where trader was told he
shouldn’t know who the information source was due to insider
trading laws
2. Federal Standard
a. Global-Tech Appliances, Inc. v. SEB S.A. (US 2011) – applied
willful blindness to civil suits in a patent case.
i. 2 requirements for the doctrine:
1. D must subjectively believe there’s a high
probability a condition exists
V.
2. D must take deliberate steps to avoid
learning the truth
ii. Kennedy Dissent – culpability of willful ignorance
may not match the culpability of knowledge
because the reasons for staying ignorant may
matter
3. United States v. Grovanetti (7th Cir. 1990) – Failing to exhibit
curiosity is not actively avoiding learning the truth
4. United States v. Heredia (9th Cir. 2007) – “Ostrich” conviction
upheld because motive of not wanting to learn the truth is
necessary to protect Ds who cannot actually check for the truth
due to actual danger
Mistake of Fact – If facts were as D believed them, the element would not be
satisfied
a. MPC
i. 2.02(3) – Recklessness as the floor is statute is silent
ii. 2.05 – Exceptions to Normal Rules
b. Old Fashioned Moral Wrong – strict liability for acts that are “wrong:
i. Regina v. Prince (UK 1875) – D is guilty of taking an unmarried girl from
her father even though he reasonably believed she was older because
his mistake had no impact on his act, which was wrong
1. Treating the girl’s age as a strict liability element
2. Policy of the law was to protect children, so mistake does not
change the fact that he took a girl
3. Dissent – Mistake of fact on a reasonable ground is an excuse if
the mistake, if true, would mean the D was guilty of no crime
a. Still okay with Lesser Crime Principle – Mens rea for lesser
crimes carry to larger crimes
c. Common Law
i. General Intent – reasonable mistakes of fact are a defense
1. If a mistake is unreasonable, that’s negligence
ii. Specific Intent – any mistake of fact that negates specific intent is a
defense
1. Requires actual mental state, so mistake is a defense even if the
mistake is unreasonable
iii. Statutes saying “intentional” are satisfied with knowledge or purpose
d. MPC – No separate provision, but just works through an application of
recklessness and the need for subjective knowledge
i. Lesser crimes only escalate if D was subjectively aware of such
circumstances
ii. 2.04(2) – if mistake, defense is not available if facts had been as
supposed, but is only guilty of the crime in accordance with if the mistake
had been true
iii. Ignorance or Mistake can be a defense if it leads to the failure to satisfy
an element or affects mens rea in a way the court counts as a defense
iv. Mistake does not have to reasonable if the mens rea requirement is
purpose or knowledge
e. Current Law
i. Prince still dominates in areas involving minors, sex, and drugs
ii. State v. Benniefield (MN 2004) – D brought drugs within 300 feet of a
school. Can be convicted of more serious school proximity crime even if
the state cannot prove he knew or should have known he was near a
school
iii. Elonis (US 2010) – When a federal statute is silent on mens rea, only
require the mens rea that is necessary to separate wrongful conduct from
otherwise innocent conduct
iv. United States v. Cardoba-Hincapie (EDNY 1993) – Denying defense that D
should not bear higher punishment for importing heroin when he
thought he was importing cocaine violated the requirement that
punishment be calibrated with culpability
f. Statutory Rape and Other Crimes Involving Indecent Conduct with Minors –
Strict Liability
i. People v. Olsen (CT 1984) – in statutory rape cases, victim’s age is strict
liability
1. Strong public policy of protecting children in “tender years” and
legislative intent cut strongly against finding a defense
a. Policy reflected in the crime differentiating degrees of
punishment for under 14 and under 18
2. Clear legislative intent to not allow mistake defense - Statute
made Ds who engaged with lewd conduct with 14 year-old and
were honestly mistaken eligible for probation
3. Concur/Dissent – Agrees with analysis, but thinks D should get the
prescribed probation punishment
a. Strict liability crimes should be limited to small penalties
4. Note: Looks like lesser crime principle
ii. B v. Director of Public Prosecutions (House of Lords 2001) – allows
mistake of fact defense in case involving sexual solicitation of a minor
when statute is silent on mens rea
1. English court moving past Prince, but Prince is still active in
America
iii. Garnett v. State (MD 1993) – Rejects moral wrong, but still rejects
mistake defense
1. Statutory rape is a strict liability crime based on the policy of
protecting the young, and it’s up to the legislature to say
otherwise
iv. Strict Liability here is going away, but 20 states still require a reasonable
mistake
1. State v. Guest (AK 1978) – strict liability in statutory rape is
unconstitutional
v. MPC – Strict Liability if conduct is with a minor under 10, but if over 10
mistake is a defense that D beards the burden of proving
vi. State v, Jadowski (WI 2004) – Court upholds strict liability but expresses
discomfort with it
1. Policy of protecting children – allowing the defense may create
situations where jurors have to scrutinize a child’s appearance to
determine if a mistake was reasonable
g. Public Welfare Offenses – Strict Liability
i. Public Welfare Offenses
1. Rooted in regulation of public safety, healthy, and welfare for
activities that pose a risk to a large number of innocent people
2. Relatively low penalties
3. Relatively low stigma of conviction
4. Typically, an exercise of reasonable care by a D would avoid
liability – places burden with the party best able to prevent harm
5. Product of industrial revolution and consumer economy
ii. United States v. Balint (US 1922) – Conviction of a D for selling illicit drugs
without a license is upheld because public policy suggests proving
knowledge is not required – act at your own peril
iii. United States v. Dotterweich (US 1943) – Conviction upheld because
statute had no mens rea requirement and the statute was regulatory in
nature, designed to protect people from bad conduct they cannot
protect themselves from
1. D violated law against shipping mislabeled products by accident
2. Drugs touch all phases of life and people and they cannot
protect themselves against bad conduct
3. This kind of regulatory criminal statute places the burden of
preventing harm with the party best able to bear it
iv. Morissette v. United States (US 1952) – SCOTUS does not apply strict
liability to a statute against knowingly converting government property
when D believed the property was abandoned
1. Cardozo – Infamous vs. Minor Offenses
a. Infamous Offenses require a guilty mind
b. Minor Offenses don’t need such a high bar
2. High penalty and risk to reputation of this offense makes it look
like an Infamous Offense where Strict Liability is not appropriate
v. Staples v. United States (US 1994) – Law prohibiting possession of an
unregistered firearm that is silent on mens rea is not a SL public welfare
offense because policy does not demand SL and the penalty is too high
1. If a statute is silent on mens rea, need evidence of Congressional
intent that it was meant as a SL public welfare crime
VI.
2. This is unlike possession of a grenade because there is a long
tradition of gun ownership, so a lot of innocent conduct would be
prohibited
3. Concurrence - Ginsberg- Legislation specified a particular type of
dangerous gun, so D would have to know he had that type to be
guilty
vi. United States v. X-Citement Video Inc. (US 1994) – “Knowing” in a statute
not only required the D to know he was shipping/receiving a visual
depiction, but also that the depiction involved minors performing sex acts
1. Scalia Dissent – reading “knowing” only into the immediately
surrounding words was the only reading that made grammatical
sense
vii. MPC 2.05 (1985 Comment) – No place for SL regulations since they do
not account for culpability
Mistake of Law
a. Traditional – “Ignorance is no excuse”
i. Conflicts with idea that only the culpable should be liable
b. Concern that overly broad exceptions will consume the rule
c. MPC
i. 2.02(9) – Mens Rea of the law itself is not an element unless the statue
says so
ii. 2.02(10) – If an offense has different grades for Mens Rea, guilty of the
lowest one provable
iii. 2.04(1) – When Mistake of Law defense is allowed
iv. 2.04(3) – Mistake of Law is allowed when the statute is not public or
relied upon an official statement
v. 2.04(4) – Preponderance of the Evidence standard for 2.04(3)
d. Official Reliance – Mistake of Law defense for acting in reliance on an official
interpretation of the law
i. People v. Marrero (NY 1987) – Rejects D’s Official Statement mistake of
law defense stemming from his own reading of a statute
1. Application of Traditional CL Rule
a. The only exception is when the mistake prevents mens rea
from being formed, but not applicable here because D
satisfied mens rea
2. Official Statement defense in NY Penal Code - permits Mistake of
Law if the mistake is found in the statute or in an official
interpretation
a. Like MPC, but drops the “after determined to be
erroneous” part
b. Does not apply to one’s own reading of a statute; requires
a statute to erroneously authorize conduct
3. Dissent - Traditional mistake doctrine is Medieval and only made
sense in a time when all crimes were serious in nature, does not
ii.
iii.
iv.
v.
apply to today’s complex criminal code because people cannot
possibly know all of the law
a. Ultimately incorrect legally; no official statement and
policy concern that allowing one’s own reading to be an
official statement would consume the rule
Hopkins v. State (MD 1950) – D cannot admit evidence that he violated a
statute against erecting signs to solicit marriages only after getting advice
from a state attorney acting in a private context
1. Concerned that it would allow all criminals to get out of crimes by
getting advice from counsel, but it’s incorrect because it would
only apply to this one instance. Future actors would have notice
that this interpretation is wrong because of this case.
MPC – Sees Hopkins as unfair
1. MPC 2.04(3) – allows defense for reasonably innocent behavior
based on advice from counsel when there is no collusion
a. Regulatory violations are focused on continued violations
and risk creation, so the focus is on deliberate violations
i. Idea is single violations will be met with official
warnings, so continued violations are by definition
unreasonable
Due Process Limitations
1. Entrapment by Estoppel – SCOTUS sometimes holds it unlawful to
convict Ds who took actions that government officials acting in
official capacity said were legal
2. Raley v. Ohio (US 1959) – Cannot convict a D of contempt of court
after he asserted his 5th Amendment rights because of
government advice in a context where he had immunity and thus
had to answer
“Reasonable” Reliance
1. United States v. Albertini (1987) – Due Process means a D can
reasonably rely on controlling opinions at least until SCOTUS
review if foreseeable – otherwise it’s entrapment
a. United States v. Qualls (9th Cir 1999) – 9th Circuit
overturns Albertini by applying Rodgers retroactively to
uphold a conviction for conduct was lawful at the time in
the 9th circuit on grounds that a SCOTUS decision on the
conduct was foreseeable
i. Dissent – unfair to restrain conduct that may be
lawful by requiring a D to consider to most
expansive circuit views outside his jurisdiction
2. United States v. Rodgers (US 1984) – Circuit conflict makes
SCOTUS review foreseeable, so in these cases D cannot rely on the
last controlling opinion in his circuit
3. MPC Test – Includes Courts
e. Hein v. North Carolina (US 2014) – Officer’s mistake of law in pulling over a
motorist with only one brake light was OK
i. The mirror of the criminal application is not an officer accidently pulling
someone over, but it’s accidently imposing criminal liability
f. Crain v. State (TX 1913) – D claimed mistake of law when a brought a gun into a
private home because he thought it was OK since the gun was dismantled
g. Collateral Mistake of Law – Mistake negates the mens rea of an element – look
for moral culpability
i. MPC 2.04(1)(a) – mistake is a valid defense if it negates a material
element
ii. Regina v. Smith (QB 1974) – Mistake defense allowed when D knowingly
damaged the floorboards and walls of his rented apartment but believed
the property was his, negating the “belonging to another” element of the
offense
iii. State v. Vrszegi (CT 1993) – Not theft if D takes property he believes in
good faith is his when a landlord took property from an office his default
tenant leased because he thought he was acting in accordance with the
lease’s default clause
iv. Awareness of Law as an Offense Element – Apply MPC 2.04(1) with
2.02(9)
h. “Willfully and Knowingly” – Mistake of Law can negate mens rea of crimes
requiring knowledge
i. Cheek v. United States (US 1991) – An honest but unreasonable belief
may prevent guilt, but juries are less likely to believe unreasonable
beliefs were honest
1. Tax crimes all have “knowledge” mens rea because the tax code
is extremely complex and every individual has to interact with it
a. A good faith belief must be reasonable or else the
government cannot prove knowledge mens rea regardless
of how unreasonable the belief is
b. Two Issues:
i. D did not believe wages counted as income under
the statute
1. D’s assertion that the law did not apply to
him actually proved knowledge since he
would have had to study the law to draw
such a conclusion
ii. D believed income tax was unconstitutional
1. Mistake was unreasonable, but if it was
honest he may not be guilty
a. Reasonableness matters in a jury
context because an unreasonable
belief may be less likely to be
accepted as honest by a jury
ii.
iii.
iv.
v.
vi.
c. In any case, since D had notice of the law, he should have
followed the prescribed legal procedures for challenging
the law through the refund process
When does a statute permit mistake of law as a defense?
1. Cheek – “willfully” means D must be aware of some legal
conclusions but not others
2. Other Federal Cases, willfulness” requires;
a. Awareness of the specific statute, or
b. A more general awareness that the act is unlawful, or
c. Mere awareness of the acts committed (only the facts)
United States v. International Minerals & Chemicals Corp. (US 1971) –
“knowing” in a statute about transporting corrosive liquids requires D to
knowingly commit the act that violated the regulation
1. Do not need to prove knowledge of the regulation
Liparote v. United States (US 1985) – “Knowing” in context of food stamp
fraud requires knowing the regulation and violating it
1. Interpreting the law otherwise would make lots of innocent
conduct illegal
United States v. Ansaldi (2nd Cir 2004) – “Knowledge” that the substance
D knew he was transporting was a controlled substance was not an
element of the offence
United States v. Overholt (10th Cir 2002) – “Willfully” in context of
illegally disposing contaminated wastewater does not mean awareness of
specific law being violated
i. Notice
i. Lambert v. California (US 1975) – Convicting a convicted felon D of
failing to register in Los Angeles when she did not know about the law
violates Due Process because she had no notice of the consequences of
her passive inaction – conviction requires actual knowledge or proof of
the high probability of knowledge
1. Wholly passive conduct
2. Ordinance is unlike other registration laws because it regulates
existence instead of conduct
a. Ex: Business licensing laws violated when one engages in
business without the license
b. The registration is merely a convenience for law
enforcement
c. D was given no opportunity to register after she was
caught
3. Dissent
a. Ordinance is standard police power for social betterment
that does not require mens rea
b. Inappropriate to draw a constitutional line on misfeasance
vs. nonfeasance
j.
4. State v. Bryant (NC 2005) – D has notice because sex offender
registries are so prevalent even though the judge did not tell him
he needed to register when he moved to a new state
5. State v. Leavitt (WA 2001) – Conviction of a D illegally possessing a
firearm after a domestic violence conviction violated DP because
a judge misled him by telling him he could not possess a gun for
his year of probation when in reality he could not possess a gun
ever
6. United States v. Wilson (7th Cir 1998) – Domestic violence
perpetrators violating a statute against gun possession only
requires “knowledge by D of the facts that constitute the offense”
a. Posner Dissent – D had no notice and was caught in a trap
of obscure criminal statutes
Cultural Defense – Generally not allowed
i. Rex v. Esop (UK 1836) – Cultural defense is not applicable because it is
like Mistake of Law in a case of a sailor from Baghdad getting caught
sodomy sodomoy in a British harbor when sodomy was legal in Baghdad
ii. May be a mitigating factor at sentencing
Homicide
I.
Intro
a. Actus Reus the same for all homicide – causing the death of another
i. Look for proximate cause of death – hastening death counts
b. Crimes are differentiated based on mens rea
i. Murder – “Malice Aforethought”
1. Intentional Killings
2. Depraved Heart – Extreme recklessness
a. Subjective - Awareness of Risk
b. Degree of Risk
c. Justification for taking risk
3. Felony Murder – killings done in the commission of select
felonies
4. For Degrees, see the statute
ii. Manslaughter
c. MPC
i. Eliminates distinction in M1 and M2
ii. Two Unintentional Killings:
1. Reckless Homicide
2. Homicide committed under reasonable emotional distress
d. NOTE: Homicide guilt compounds – while someone may only be convicted of
murder, if they are guilty they are by definition guilty of lower grade murder
since mens rea’s compound
II.
Intentional Killing – Murder
a. MPC
i. 210.1 – Actus Reus for Homicide
ii. 210.2 – Murder as Purpose/Knowing or Reckless Indifference (1st
Degree Offense)
b. Mens Rea: “Malice Aforethought”
i. Report of Royal Commission on Capital Punishment (1953) - deliberately
premeditated killing that was not provoked
c. First Degree Murder – intentional killings that should get higher punishment
i. Premeditation – used by 29 states and DC to split M1 from M2
ii. PA 1794 Statute – First Degree Murder (M1) has mens rea of “willful,
deliberate, and premeditated”
iii. NY – All murders escalate to M1 if victim was an officer or someone
serving a life sentence
iv. CL & MPC do not distinguish degrees like this
v. Time Requirement – Jurisdictions Split 50/50
1. Commonwealth v. Carroll (PA 1963) – Premeditation as only
requiring intention; no time to reflect needed
a. D remembered the gun, he went and got it, and then
came back, took aim, and shot
b. Intentionally using deadly force against a vital body part is
very strong evidence of specific intent to kill
c. Argument that shooting his wife in the bedroom and the
lack of a plan to dispose of the body means there was no
premeditation is just an argument for the jury, not legally
significant
d. Judge and jury do not have to believe a witness’
testimony, even if psychiatric, about premeditation
e. Dissent: eliminates M1 / M2 distinction
i. Note: Effect only applies to intentional killings, so
creates the below distinction
a. First Degree (M1) – intentional
killing; purpose and knowledge
b. Second Degree (M2) – extremely
reckless killing, felony murder
2. Young v. State (AL 1982) – Premeditation can be formed as D is
pulling the trigger
a. AZ – statute says premeditation does not require
reflection, but cannot form if the killing occurred in a
sudden fight or heat of passion
i. State v. Thompson (AZ 2003) – Interprets statute to
require reflection since otherwise the statute
destroys the line between M1 and M2
3. State v. Guthrie (WV 1995) – Premeditation requires reflection,
not just intent
a. Jury Instruction conflating premeditation with intent to kill
destroys the M1 / M2 distinction
i. All Murders without time to reflect are M2
b. Bullock v. United States (1941) – one who meditates on
intent to kill and does so is more dangerous than an
impulsive actor
4. People v. Anderson (CA 1968) – 3 category test to determine
premeditation
a. 3 basic categories of proving premeditation if following a
Guthrie approach
i. Planning - D’s prior behavior suggesting desire to
take a life
ii. Motive – D’s prior relation to victim that informs
why he’d kill
iii. Preconceived Design – manner of killing was
particular and exacting
b. When a court will convict:
i. All three satisfied
ii. People v. Solomon (CA 2010) - No specific
incomplete combo of the types of evidence to
suffice for a conviction
1. Other courts follow old rules that conviction
is OK if strong evidence of Planning or
Motive along with either Planning or
Preconceived Design
vi. MPC – Rejects premeditation because the line between impulse and
deliberation should not determining severity
1. Thus, eliminates degrees entirely because of this problem
d. Provocation – A defense in intentional killing to reduce degree
i. MPC – Extreme Emotional Disturbance
1. 210.3(1)(b) – Murder drops to manslaughter is under extreme
emotional disturbance with a reasonable explanation
ii. Common Law – the absence of provocation is an element of the offense,
so proving provocation means no malice aforethought
1. Test: provocation was such that a reasonable person would act
rashly
iii. Affirmative Defense in other states
iv. Question of Law or Fact?
1. Common Law - Limited Question of Law – Jury only gets to
decide within narrow categories
a. Traditionally Accepted Provocations
i. Extreme assault of battery
ii. Mutual combat
iii. Illegal arrest – abduction
1. Not much caselaw applying this to police
iv. Injury / abuse of a close relative
v. Sudden discovery of adultery
b. Words
i. Girouard v. State (MD 1991) – Words alone are
insufficient to count as provocation as a matter of
law
1. Two Tests of Provocation: - Both objective
a. Calculated to inflame the passions
of a reasonable man so he acts out
of passion rather than reason
b. Better Test: Reasonable person
becomes so enflamed they act
rashly
i. Note: Objective test, but
subjective requirement that
the D is actually inflamed
ii. Riggs v. State (AZ 2013) – only allow provocation if
D sees adultery or in the face of assault of self or
family
iii. People v. Garcia (IL 1995) – Same rule as Girouard
iv. Some jurisdictions permit words if they are like
seeing the described conduct
c. Sexual Infedelity
i. State v. Simonovich (NC 2010) – a wife describing
infidelity is not provocation
ii. Dennis v. State (MD 1995) – only apply when D
stumbles into sexual intercourse
iii. State v. Turner (AL 1997) – only applies when the
couple is married
iv. Same Sex Advances – some jurisdictions allow this
as provocation, others do not
2. Recent Trend (Minority View) – Broad Question of Fact
a. Maher v. People (MI 1862) – Question of Fact – Jury
should have been able to decide if there was a Cooling
Time that would rule out provocation
i. While judges set the parameters of this objective
test, it’s up to juries to apply common human
experience to determine if the facts fit the
standard
ii. Dissent – Provocation must occur in the presence
of a crime
b. CA follows this rule
v. Partial Excuse or Justification?
1. Partial Excuse
a. United States v. Roston (9th Cir 1993) – Concurrence – the
objective standard in provocation is about the reasonable
man losing control because the reasonable man would
never kill
b. People v. Beltran (CA 2013) – Provocation properly should
focus on mental state, not the act
c. Pillsbury – Finding provocation does not confer moral
acceptability
2. Partial Justification
a. Ashworth – Both parties are morally wrong since provoked
act is a punitive return against someone who wronged D
3. State v. Pittman (SC 2007) – child cannot use provocation defense
against a grandfather who paddled him as corporal punishment
because the grandfather was legally entitled to paddle him
vi. Cooling Time
1. Common Law – a significant time between provocation and killing
means no provocation as a matter of law
2. United States v. Bordeaux (8th Cir 1992) – no provocation when D
learned of his mother’s rape 20 years after the fact and did not
act on the knowledge until later in the day
3. Courts have generally not accepted “re-kindling” arguments
a. State v. Gounagias (WA 1915) – no provocation when D
killed 2 weeks after provocation but was reminded of it
right before killing
b. Commonwealth v. Leclair (MA 1999) – no provocations
because prior suspicion constituted a cooling time
c. People v. Berry (CA 1976) – D who waited for the victim in
his apartment for 20 hours can get a manslaughter
instruction because the heat of passion was from a longsimmering provocation
vii. MPC – Replaced with Extreme Emotional Distress
1. Used in some form by 20 states
2. Purpose is to recognize less culpable acts caused by mental
infirmity but short of insanity
3. Effect of getting rid of Cooling Period
4. People v. Casassa (NY 1980) – NY application of MPC-inspired
stature (only difference is it’s an affirmative defense)
a. Correct to deny EED because D’s behavior was so peculiar
to D it could not have been reasonable when he killed a
girl he was casually dating
b. NY Penal Law – M2 defense when D acted under extreme
emotional distress for which there was a reasonable
explanation
c. Two Parts of Defense:
i. Subjective - Particular D must have acted under
the influence of extreme emotional disturbance
1. Note: Replaces provocation
ii. Objective - Reasonable explanation for such
disturbance, taken from D’s “situation” assuming
facts were as he believed them
1. Note: Dispute over what exactly is included
in “situation”
5. State v. White (UT 2011) – EED can only be based on a significant
mental trauma that has simmered in D’s subconscious before
suddenly coming forward
a. Note: Does not require immediate provocation
6. State v. Elliot (CT 1979) – Mental trauma, no requirements of “hot
blood” or no “cooling off”
7. People v. Waller (NY 1984) – No EED when a drug dealer killed his
supplier
a. Dissent – should have been up to a jury
8. How to adapt the objective test to D’s “situation”? – Disputed
a. D.P.P. v. Camplin (UK 1978) – House of Lords says
objective test should account for age and sex
i. Don’t account for parts of D affecting self-control
ii. Regina v. Smith (UK 2001) – House of Lords
reverses Camplin in case of clinically depressed
alcoholic with normal self-control; leaves it up to
the jury to determine what would be unjust to not
consider
1. Parliament then overruled House of Lords –
provocation only allowed when D lost
control due to a “justifiable sense of being
serious wronged” but can include things
like age, sex, and other factors not going to
self-control
b. MPC – Jury decides what is part of a D’s “situation”
i. Excludes idiosyncratic moral values
c. Battered Women
i. State v. McClain (NJ 1991) – Court did not apply
evidence D suffered from battered women
syndrome from living in a psychologically
humiliating relationship
ii. Comment on R. v. Thornton (1996) – concern this
syndrome gets too far from an objective standard
iii. State v. Felton (WI 1983) – Must consider a
“reasonable person who is a battered spouse”
iv. Can use history of abuse
v. Under CL, need a provocative instance immediately
before the killing
d. Mental Illness
i. State v. Klimes (WI 1979) – psychiatric evidence of
depression is inadmissible
ii. People v. Steele (CA 2002) – PTSD evidence
inadmissible
iii. Juries are not sympathetic
e. Culture – Courts hostile since worry is a consequence is
disfavoring victims
i. The Queen v. Zharg (Northern Ireland 2011) –
Judge allows cultural testimony, but culture does
not affect the jury instruction
ii. Masciantorio v. R. (Australia 2005) – culture has to
be a factor in a multicultural society to avoid
discrimination and ensure equal protection
e. Depraved Heart Murder – Recklessness manifesting indifference to human life
i. Commonwealth v. Malone (PA 1946) – D convicted of M2 for killing his
friend in a game of Russian Roulette because his act of gross
recklessness provides enough evidence of “malice aforethought”
1. Court finds gross reckless disregard for human life since he fired
three times out of five chambers, creating a 60% risk of death and
supporting evidence of implied malice for M2
a. Use of percentage may be a red herring since the activity
itself is so dangerous
ii. Many states have codified CL circumstances making unintentional
killings murder with use of words like “malice”
1. People v. Dellinger (CA 1989) – CL malice = D who intentionally
acts while knowing the act endangered the life of another in
disregard for life
iii. MPC – unintentional killings are murder when committed recklessly
with “extreme indifference to human life”
1. People v. Taylor (NY 2010) – MPC-like “depraved indifference” =
“utter depravity, uncommon brutality, and inhuman cruelty”
a. No Murder when D killed his neighbor after an altercation
after smoking crack and D took the body to the roof with a
plastic bag around her head
2. People v. Prindle (NY 2011) – 4-3 court reverses depraved heart
murder when D collided with another car while on a high speed
police chase
a. Dissent – conduct was in such disregard for human life it
equaled a conscious desire to kill
3. Not much caselaw determining if “Extreme Indifference” is
objective or subjective
iv. People v. Burden (CA 1971) – Omission of a legal duty = an act when the
result is death
1. Murder when father failed to feed his baby, knew no one else
could feed the baby, and didn’t feed because he didn’t care
v. Drunk Driving – many courts say egregiously dangerous driving supports
M on theory that D was actually aware of the risk
1. Note: MPC 2.08 on intoxication – self-induced intoxication is
immaterial to awareness in recklessness
2. United States v. Fleming (4th Cir 1984) – Affirmed D conviction of
M2 for drunk driving 70-100 in the 45 speed limit George
Washington Parkway, driving into traffic, and eventually hitting
someone while going 70-80 in a 30 mph zone
a. Federal statute defines Malice Aforethought as “reckless
and wanton and gross deviation from a reasonable
standard of care that makes it warranted for a jury to
conclude D was aware” of serious risk of bodily harm
b. BAC was so high just being on the road was reckless
3. Jeffries v. State (AK 2007) – M2 upheld when D had BAC of 0.27
and drove into incoming traffic on an icy road, had drunk driving
priors, violated probation by drinking, and ha had a higher
awareness of the risk of drunk driving
4. People v. Watson (CA 1981) – sufficient evidence to support M
because D drove to where he drank, so he had to have known he
would drive home; can presume D knew the dangers of drunk
driving
a. Dissent – death is not a probable result of drunk driving
because thousands of people do it all the time without
deadly consequence. Plus, it was 1:00am and no other cars
were on the road so majority’s reasoning is too broad
vi. MPC and Inadvertent Murder – 210.2(1)(b)
1. Official Comment (1980) – inadvertent risk creation can never be
murder because no subjective culpability
a. Keep negligent homicide separate from murder – need
more than negligence to be Murder
2. MPC and Intoxication – 2.08(2) – do not need to show
recklessness if D did not have subject awareness because of
voluntary intoxication
a. State v. Dufield (NH 1988) – Reckless murder during a
drunken orgy in MPC jurisdiction, D argued intoxication
prevented him from having extreme indifference
i. Affirmed conviction finding indifference to be an
objective examination of divergence from normal
behavior rather than an element with a subjective
mens rea inquiry
vii. Intent to inflict great bodily harm
1. CL – malice satisfied with intent to commit great bodily harm
a. many jurisdictions follow this format for murder
2. MPC excluded this on grounds that “extreme indifference”
already captures all unintentional killings that should be
elevated to murder
f. Felony Murder – killings committed in the court of certain felonies are
escalated to Murder on the grounds that the mens rea of the felony is enough
to generate malice aforethought
i. MPC – Does not expressly include FMR, but 2.10(2) sets a rebuttable
presumption of reckless indifference if D did one of a list of offenses
1. 210.2(1)(b) – Reckless Indifference assumed if killer is the actor
or an accomplice to commission, attempt, flight from a
commission or attempt of prescribed felonies
ii. Basic Doctrine
1. Classic Doctrine – applies if you kill while completing or
attempting a felony
a. Wide Scope
b. Killings can be accidental
c. Felony accomplices are on the hook too
d. Killing can be by any agent in the felony
2. Strict Liability
a. English CL – No Strict Liability
i. Regina v. Serné (Central Criminal Court 1887) –
committing an act known the be dangerous for
purpose of committing a felony that then causes
death satisfies malice aforethought and should be
murder
1. Here, D set fire to his home with his family
inside to scam insurance and his son died
2. Jury has to find guilt of murder if D set the
fire
3. Does not matter if the victim would have
died anyway, all that matters is if the felony
cut the victim’s life short
b. US – Broader, strict liability for killings resulting from
felonies
i. People v. Stamp (CA 1969) – M1 conviction upheld
after a victim with a bad heart died of a heart
attack during a robbery at gunpoint because the
felon is strictly liable for all killings committed by
him or an accomplice in committing a felony so
long as the felonious acts are the direct cause of
death
1. Like an eggshell tort rule in CA
2. The death does not need to be foreseeable
for Felony Murder to apply
ii. Fuller (CA) – M1 FMR when D crashed into
someone after breaking into a van
iii. People v. Washington (CA 1965) – FMR strict
liability deters felons from killing
iv.
3. Causation – Have to establish the felony’s actus reus caused the
death
a. Two requirements:
i. Felony was the “but for” cause of death, and
ii. Result must have been a natural consequence or
foreseeable
b. King v. Commonwealth (VA 1988) – reversed a felony
murder conviction when a pilot crashed a plane
transporting drugs because while drug distribution is a
felony, the presence of the drugs on the plane was not the
proximate cause of death
4. Arguably a remnant of lesser offense principles
a. MPC Comment (1980)
i. No basis in evidence that accidental homicides
occur more often in connection with certain
felonies
ii. Basis of moving unintentional killings to murder
must be in extreme indifference to life
b. Abolished in England in 1957, but remains in majority of
states with some limitations
5. Judicial Reform
a. People v. Aaron (MI 1980) – abolished FMR in Michigan by
exploiting the MI statute not defining murder
b. Queen v. Vaillancourt (Canada 1987) – FMR is
unconstitutional because it permits conviction without
mens rea
6. Statutory Interpretation
a. People v. Dillon (CA 1983) – CA rejected Aaron despite the
CA and MI statutes being identical by citing legislative
intent to codify FMR
i. To avoid 8th amendment issues with invoking FMR
to get M1, sentencing court has to consider if M1
punishment is disproportionate to actual
culpability
b. State v. Ortega (NM 1991) – Court read an intent to kill or
disregard for human life into FMR
c. Commonwealth v. Matchett (MA 1982) – Must show
disregard for human life before invoking M1 FM for nonenumerated felonies
iii. Limitations
1. Inherently Dangerous Felony
a. If a felony is specifically listed in a murder statute, it is
inherently dangerous
b. Crimes Themselves have to inherently dangerous
i. People v. Phillips (CA 1966) – Reverses FMR from
Grand Theft on theory FMR only applies to
inherently dangerous felonies
1. D is a chiropractor and told a child’s family
he could cure his cancer. D charged $200,
and naturally the child died; P trying to get
FMR by arguing the deception was Grand
Theft
2. Would expand FMR to any circumstances
where a D puts life at risk
ii. People v. Henderson (CA 1977) – false
imprisonment does not invoke FMR because all its
elements do not involve life endangering conduct,
so offense is not inherently dangerous to life
1. Focused on the legislature NOT splitting
the crime into violent and nonviolent
separate offenses
iii. People v. Howard (CA 2005) – Attempting to elude
an officer while driving with “willful or wanton”
disregard does not invoke FMR even if D led a high
speed chase because driving with “willful or
wanton” disregard could include driving with a
suspended license (too broad)
c. “As Committed” - Unlike CA, most states apply FMR if a
felony is committed in a dangerous way
i. Hines v. State (GA 2003) – FMR conviction based
on felony of a felon possessing a gun because in
the circumstances created a foreseeable risk of
death
1. D knew there were other hunters, he had
been drinking, and intentionally took an
unsafe shot
2. Dissent – Involuntary manslaughter is a
better fit since D lacked culpability for
killing
ii. Q of Fact or Law?
1. GA – Judges
2. RI – Factfinder
a. People v. Stewart (RI 1995) – mother
withheld sustenance from a baby
because she was on a crack binge.
FMR on child neglect
2. Killings Not In Furtherance of a Felony
a. People v. Gillis (MI 2006) – flight from a burglary qualifies
even though D abandoned the attempt and killed
someone while fleeing an officer sometime later
b. Lethal Acts unrelated to felonies – in furtherance applies
to accomplices if they intentionally aid or encourage the
acts of another and are reasonably foreseeable in
furtherance of a common objective
i. People v. Cabaltero (CA 1939) – FMR for all robbery
participants when the leader shot their bad lookout
for stupidity because shooting the lookout
furthered the success of the ongoing robbery
c. Who Kills?
i. State v. Canola (NJ 1977)
1. D convicted of M via FMR for the death of a
jewelry store owner and his associate after
they died exchanging gunfire
2. Regressive to extend FMR to the acts of a
third party not in furtherance of the felony
– tort ideas like proximate cause do not
apply to criminal liability
1. Concurrence in Result Only - Practical
result of the majority is that felons do not
bear liability for killings that occur during
their felonies so long as they or a co-felon
do not kill
a. State later adopted this view
ii. Majority – Agency Theory – FMR only applies
when a felon or someone acts in concert with the
felon kills
1. Liable for foreseeable killings from coconspirators
ii. Proximate Cause Theory - identity of the killer is
irrelevant so long as the felony was the proximate
cause of the killing and the risk was foreseeable
iv. Implied Malice – if a non-felon kills during a dangerous felony, can
arguably convict D under “depraved heart” theory since the felonious
acts were taken with conscious disregard for human life
1. People v. Gilbert (CA 1966) - Felon A can be liable for the death of
felon B at the hands of a non-felon without using FMR because
self-defense is a reasonable and foreseeable response to felons’
initiating conduct
2. People v. Johnson (CA 2013) – “mastermind” of a felony who was
not present is liable for the death of a co-felon who was killed in
self-defense because letting him off the hook could encourage use
of accomplices in crimes
3. Stewart – benefit of FMR is P doesn’t have to actually prove actual
awareness
III.
Unintentional Killing – Involuntary Manslaughter
a. MPC
i. 210.3(1)(a) – Recklessness as mens rea for manslaughter
ii. 210.4 – Negligent Homicide
b. Can be unclear if Mens Rea requirement is recklessness or negligence
i. Commonwealth v. Welansky (MA 1944) – “wanton or reckless” =
recklessness with respect to death, but the conduct must be voluntary
1. Pre-MPC
2. Involuntary manslaughter for running a club with an unsafe
floorplan that burned down and killed a lot of people
a. Conduct has to be intentional, while consequence does
not have to be intentional
b. Omission of duty of business owner to customers
3. Essence of wanton or reckless conduct is action or failure to
meet a duty involves a high likelihood that substantial harm will
result
a. Mere gross negligence is not enough, yet the trial court
said the risk had to be apparent which is very close to
negligence
ii. Case Law unhelpful in creating a test
1. Commonwealth v. Pugh (MA 2012) – Wanton and Reckless
determined based on what the specific person knew or an
objective test
2. Rex v. Bateman (1925) – Criminal acts must be beyond negligence
that compensation alone can atone, need a disregard for life and
safety of others to the degree that it is a crime against the state
3. State v. Barnett (SC 1951) – criminal negligence must be to a
degree that D is culpably gross negligent or reckless or conduct is
such a departure from normal that it amounts to indifference to
human life
4. Hall (1960) – triple contradiction of “willful, wanton, negligence”
includes pieces of three different kinds of mens rea
c. MPC – Solves the mens rea problem by creating two crimes
i. 210.3 – Manslaughter requiring recklessness
ii. 210.4 – Negligent Homicide requiring negligence
d. Negligence – More than ordinary negligence needed, but courts are not clear
on how much more is needed
i. Potential Factors differing from Ordinary Negligence
1. Higher likelihood of harm
2. Harm is especially serious
3. “Apparent risk” – actual awareness or at least a great likelihood of
awareness of risk
a. But is this too close to recklessness?
4. Departure from norm is particularly gross
ii. Contributory Negligence – Defense: D argues the victim contributed to
the incident
1. Dickenson v. State (MS 1983) – No contributory negligence when
D driver struck a drunk driver who stopped in the middle of the
road in the middle of the night with lights off
2. State v. Brammer (KS 2015) – Contributory negligence is relevant
in determining proximate cause of death
iii. State v. Williams (WA 1971) – Ordinary negligence standard of
manslaughter – standard of a reasonable parent
1. Affirms negligent manslaughter conviction for parents who
negligently failing to provide their 17-month-old with medical
attention
a. Note: Parents were native American and it was a time
where child services was taking a lot of native children
away; In 1960s-1970s they removed up to 25%-35% of
native children. Later let to statutory reform.
2. D had a duty to provide medical care for their child, but if the
duty did not activate until it was too late than negligence was
not the proximate cause of death
a. Parents had notice during this critical period, so they are
guilty
3. Note: WA now applies MPC standard instead of ordinary
negligence
iv. Individualization
1. State v. Everhart (NC 1977) – No negligence due to D’s 72 IQ and
accidental nature of the killing where D thought her baby was
already dead
2. State v. Patterson (CT 2011) – Court did not consider D’s low IQ in
negligently keeping water from a 2 year old
3. Failure to provide medical care due to religious beliefs
a. Questions to ask – actually somewhat similar to Williams
parents not taking the child to a doctor for fear of child
services
i. Are the beliefs justified?
ii. Should the beliefs be applied to the reasonable
person standard?
iii. Did D arguably lack capacity to act otherwise?
4. MPC
a. MPC definition rejects fully individualized standard
b. Allows some “situation” language – this allows factors like
blindness to come in while shutting out factors like
hereditary, intelligence, temperament
c. MPC does not address why someone may not have known
a risk
e. Recklessness
i. People v. Hall (CO 2000) – Recklessness in manslaughter context means
creating a “substantial and unjustifiable risk of death”
1. MPC Case
2. D was skiing recklessly and struck and killed another
3. Substantial: While skiing is not a high-risk activity, a reasonable
person could conclude that D’s conduct greatly increased the risk
of injury
4. Unjustifiable: Skiing does not require such dangerous conduct to
enjoy oneself, so a reasonable person could find the conduct
unjustifiable
5. Gross Deviation from Standard of Care of Reasonable Skier:
a. Civil statute created rebuttable presumption uphill skiers
are at fault for all collisions
b. D skied over long distances like this, so it’s not a mere
momentary lapse
6. Did D conscious disregard the risk?
a. Objective test
b. D’s knowledge and training say yes
7. Question should go to a jury
f. Misdemeanor Manslaughter Rule – FMR analogy for manslaughter
i. “Unlawful Acts Doctrine” - many states, a misdemeanor resulting in
death can provide basis for involuntary manslaughter without mens rea
1. Only applies to dangerous (malum in se) crimes, and not
regulatory statutes
ii. Limitations
1. Proximate Cause
a. Commonwealth v. Williams (PA 1938) – reversed a
manslaughter conviction because not renewing a driver’s
license was not the proximate cause of death
2. People v. Holtschlag (MI 2004) – Regulatory offenses
Attempts
I.
Intro
a. Attempts were misdemeanors at CL
i. CL was more focused on harm than mental culpability
b. Most States – reduced punishment compared to the original crime
i. NY – attempts punishable as one degree lower, except drug crimes
ii. CA – no more than 80% of original crime’s punishment
c. MPC – Attempts are the same as the underlying offense except for capital first
degree offenses
i. MPC 5.05(1) – All “attempts, solicitation, and conspiracy” are equal
crimes to successful crimes except capital first degree crimes become
second degree”
1. MPC Comment (1985) – If punishment is about “corrective
sanction,” there is little difference between success and failure in
the commission of a crime
II.
Mens Rea
a. MPC
i. 5.05(1) – Attempts = Completed Crimes except first degree becomes
second
ii. 5.01(1) – Definition of Attempt
1. Substantial step for incomplete attempts
2. 5.01(1)(b) – Completed attempts with result elements; mens rea
of underlying offense with purpose to cause the result
a. Ex: For Murder, it’s malice aforethought + purpose to kill
b. Common Law = Specific Intent
i. Unclear if Knowledge or Purpose
ii. Note: For attempted murder or manslaughter, need to have specific
intent to kill
1. To be guilty of attempted reckless endangerment, need to have
specific intent to recklessly create a risk
iii. Smallwood v. State (MD 1996) – Reverses D’s assault and attempted
murder conviction from having raped 3 women while knowing he was
HIV positive because there was not enough evidence to established
intent to murder
1. Attempt here requires specific intent to kill with no justification
or excuse
2. Contrasts with a similar case, but where the conviction was
upheld because there was evidence that D actually intended to
spread his HIV, while here there is only specific intent to rape
iv. Mens Rea for Circumstances – Rule is unclear
1. Regina v. Khan (1990) – attempted rape has the same mens rea of
rape re: the consent element
2. Commonwealth v. Dunne (MA 1985) – conviction of assault with
intent of statutory rape upheld because reasonable belief about
the age of the victim is not an element
c. MPC
i. Conduct – Purpose or Belief
1. Completed Attempt – purpose or belief
2. Arguably requires purpose for incomplete attempt (subsection b)
ii. Results – Knowledge for complete attempts, unclear for incomplete
attempts
iii. Circumstance – same as the underlying offense
1. MPC 5.01 – can get confusing re: incomplete attempts
iv. MPC 211.2 – Reckless Endangerment – 1 year misdemeanor
1. A crime for attempts that lack proof of purpose
2. Tries to solve a gap in the law for reckless behavior that does not
bring about a harm but lacks a corresponding crime
d. Most States – require mens rea of Purpose for attempts, even if the underlying
crime has a lower mens rea requirement
i. Can produce some odd results
ii. Jones v. State (IN 1997) – D fired a gun into a house and killed some
inhabitants. Not inconsistent to convict D of murder for those he killed,
but he was acquitted for attempted murder re: the survivors
iii. Thacker v. Commonwealth (VA 1922) – No attempted murder when a
drunk was spurned by a woman in a tent, so he walked away and shot in
her direction
iv. People v. Thomas (Co 1986) – Reckless manslaughter conviction when D
shot 3x but argued that 2 shots were intended to be warning shots
because the attempt shares culpability with the offense, along with
conduct that is a substantial step towards committing the offense per CO
statute
v. People v. Rubio (CO 2009) – Attempted murder affirmed when D shot in a
parking lot with an AK-47 and wounded 2 girls because “malice
manifesting extreme indifference to human life”
1. Note: Appears to apply recklessness
vi. State v. Holburn (HI 1995) – no attempted involuntary manslaughter
because P cannot show someone intended to unintentionally kill
someone
e. Attempted voluntary manslaughter is a thing
i. State v. Holburn (HI 1995) – no attempted involuntary manslaughter
because P cannot show someone intended to unintentionally kill
someone
ii. Attempted voluntary manslaughter is a thing
f. Attempted Felony Murder
III.
i. AR is only state to recognize attempted felony murder, but D should not
be guilty of felony murder if a robbery victim has a heart attack during
the felony and lives
Actus Reus – Preparation vs. Attempts
a. MPC
i. 5.01(1) – Definition of attempt
ii. 5.01(2) – Substantial Step
iii. 5.01(4) – Abandonment as an Affirmative Defense
b. No Traditional test is satisfactory
i. Proximity
1. People v. Rizzo (NY 1927)
a. Rule: Was act close enough to accomplishing the crime
that D would have succeeded but for interference?
i. Statute is about acts “which tends to effect the
commission of a crime”
b. No attempt because a robbery cannot even begin before
the target is found
i. Target was not in the building, so even if he got
inside there would have been no robbery
2. Commonwealth v. Bull (MA 2009) – overturned attempted rape
because D had not actually seen or paid to have sex with the child
the undercover officer offered to D; they were only on their way
to where the “child” was
a. Dissent – implication is no attempted rape until D reaches
the victim, which will cause psychological damage while
the police have to wait to pounce
ii. Equivocality – focus on how acts bespeak intent
1. Test: Play video of the actions without sound, and if you can
identify mens rea the test is satisfied
a. Ultimately hard to apply since any conduct could work
2. King v. Barker (NZ 1929) – applied a res ipsa idea where overt
actions that declare a guilty purpose can cross into attempts
a. Weeds out vague acts not aligning with criminal intent
3. People v. Miller (CA 1935) - Reversed a murder conviction when a
D had already targeted someone, walked towards them, loaded a
gun but did not aim
4. United States v. Harper (9th Cir. 1994) – affirm conspiracy but
reverse attempt when Ds were caught in a car near an ATM with a
stun gun, guns buried nearby, and having just tripped an ATM and
waiting for the repair person to come because the actual
unequivocal act of robbery could not have occurred until the
technician arrived
iii. Old Common Law - Last Step Test – it becomes an attempt once D takes
the last step to completing a crime
1. Problem: puts police in an impossible position of having to wait
until the criminal fires the gun
c. MPC – Substantial Step – used by half of states and in federal jurisdiction
i. Necessary Condition, Strongly Corroborative
1. Shifts emphasis on acts done instead of acts remaining to
completion
2. Do not have to find if D would have gone through it
3. MPC 5.01(1)(c) – includes omissions in substantial step
ii. Most states have not adopted MPC examples
iii. Result is not required to find an attempt
iv. Circumstances as D believed them
v. United States v. Jackson (2nd Cir. 1977)
1. Judges applies a two-step test to determine culpability (like MPC)
a. Acts with culpability required for the crime
b. Substantial step to commit the crime
i. Strongly corroborative of firmness of criminal
intent
2. D had guns, masks, etc. in the car so only reason was they were
going to rob the bank
3. Judge concludes that Ds would have robbed if not for intervening
circumstances
vi. United States v. Joyce (8th Cir 1982) – reverse attempt to buy cocaine
with intent to distribute because D abandoned prior to perfecting the
purchase
1. All evidence is just preliminary discussion; not enough that D only
would not purchase because the undercover would only show D
the cocaine if D showed the money (which he did not do)
vii. United States v. Howard (5th Cir 2014) – affirm attempted solicitation of
sex with a minor because D constantly communicated with an
undercover officer, asked her to do sex acts to the minors and sent
explicit photos even though D did not make explicit travels plans
d. King v. Barker (NZ 1924) – Common law: preparation are acts too remote to be
an attempt, but the line is not clear
i. R v. Eagleton (1855) – last step on the road to criminal intent is the line
between preparation and attempt
ii. R v. White (1910) – first poisoning in a series of poisonings is enough to
find attempted murder
iii. Court rejects the Eagleton approach, but no clear alternative
e. Abandonment
i. Law wants to preserve “locus penitentiae” - ability for Ds to repent and
abandon their crime without being exposed to its full consequences
ii. States that allow abandonment defenses require that the abandonment
be done with circumstances manifesting voluntary renunciation of
criminal purpose
1. MPC - Voluntary
2. People v. Johnston (NY 1982) – No renunciation defense when D
robbed a gas station attendant at gun point but when the
attendant only had $50 D said he was joking
3. People v. McNeal (MI 1986) – Upholds attempted sexual assault
after D forced a girl at knife-point into a house because the
renunciation was not voluntarily, it only came after extensive
pleading by the girl
a. Ross v. State (MS 1992) – Same facts, opposite outcome
because court concluded nothing was stopping D from
completing his crime
iii. McQuirter v. State (AL 1953) – Actus reus tests with regard to attempts
solves potential problems with only relying on mens rea as
demonstrated here when the court only applied a mens rea test
1. Jury could consider the “social conditions and customs founded
upon racial conditions” that a white woman would feel
threatened by a black man
2. Note: If you have mens rea, any act is furthering the mens rea.
SO we need to rely on acts to determining what is an attempt
3. The only direct evidence was the police testimony – the system
leaves it up to the juror to determine who is credible but both
parties have an incentive to exaggerate
a. Confession evidence generally goes to a jury
4. Takeaways:
a. First step can be benign even if mens rea is present
b. Evidentiary concerns split mens rea from mere fantasies
c. Evidence of mens rea can be secondhand testimony
f. Substantive Crimes of Preparation
i. Burglary
ii. Assault
iii. Crimes of possession with intent to do something
iv. Stalking
1. CA first adopter in 1990, and all other states have statutes now
2. Key challenge is not making the law too broad
a. Most courts find the stalking statutes not too broad when
applied objectively
b. KS found their statute unconstitutional because it
depended on the victim’s personal feelings, but upheld a
second statute with an objective test
3. Underinclusive?
a. State v. Craig (NH 2015) - Intimidating posts on D’s public
facebook page were “threats” when they identified the
victim by name even if they were not sent directly to her
b. Elonis v. United States (US 2015) – Facebook posts were
not considered “threats” unless D understood them to be
c. People v. Stuart (NY 2003) – repeated advances and
following is within stalking statute because the bar is
“material harm to the victim’s mental or emotional
health” and the she told him to stop many times
Complicity
I.
Intro
a. Group Criminality – accountability for the acts of others
i. NOT its own offense – Accomplices are charged with the underlying
crime
ii. Derivative Liability
b. Complicity is for individuals who do not complete the elements of an offense
but assist someone else
c. Modern statutes dispense with old distinctions between Principals and
Accessories, but Accessories before the fact may get lighter punishment
d. MPC – Defines accomplices as those who solicit crimes or aid in planning /
commission
i. All kinds of accomplices get the same punishment and are charged with
the principal’s crime
e. Culpability can vary
i. Ex of Accomplice with Higher Culpability: Head of a drug distribution ring
is an accomplice to the street dealer’s illegal sales
ii. United States v. Ambrose (7th Cir 1985) – Posner – abolishment of
distinctions between principals and accessories was meant to give
greater discretion in sentencing, but was undercut by mandatory
sentencing
II.
Mens Rea regarding the Principal’s Conduct – Purpose to advance the principal’s
action or conduct
a. MPC
i. 2.06 – Complicity
1. 2.06(3) – Requirements for complicity
2. 2.06(4) – Results
ii. 5.01(3) – Can be guilty of attempt if D aided even if the underlying crime
was not committed or attempted or the aid was not useful
iii. Rejects Natural and Probably Consequences
iv. Silent on mens rea for attendant circumstances; left to the jury
b. Traditional – MR of underlying offense
i. Problem: This can’t really be correct
c. Hicks v. United States (US 1893) – D needed to have intent to encourage the
killer, so it is not enough if the words had that effect
i. Variations:
1. If D went to enjoy the spectacle of a showdown
a. No guilt - No acts encouraging the killer
2. If D shouts “go get’em”
a. Guilt depends on if the killer hears the calls and if it was
actual encouragement
3. If D planned to be present as moral support and coordinated with
the killer
III.
a. Guilty
d. State v. Gladstone (WA 1970) – No nexus between accused accomplice’s act
and the underlying criminal conduct
i. D convicted of aiding purchase of marijuana by telling an undercover
officer where he could buy it
ii. No aiding and abetting unless one associated with the venture
participates in order to make the act a success
1. Too broad to define aiding and abetting as suggesting someone
else may commit a crime
iii. “nexus” likely is a way of saying there is not enough evidence to
establish mens rea of purpose as a matter of law
e. State v. Wilson (WA 1981) – intent to encourage a sale when D commented
drugs were worth the cost when the buyer hesitated
f. State v. McKeown (WA 1979) – D calling a seller to ask if he could sell and
remaining for the transaction is enough to find mens rea to aid
g. Seriousness of Substantive Offense – idea that mens rea should depend on
seriousness of the offense
i. United States v. Fountain (7th Cir. 1985) – Knowledge is sufficient MR for
serious crimes, but need Purpose for lesser crimes
1. Higher liability for aiders when it could have a meaningful
deterrent effect
h. Rosemund v. United States (US 2014) – SCOTUS still confused on
purpose/knowledge here
i. Complicity requires active participation with full advanced knowledge
of the circumstances
1. Note: “Advanced Knowledge” is basically purpose
ii. Only Liable under 18 USC 2 if:
1. D took affirmative acts in furtherance of the crimes, and
2. D took such steps with the intent of facilitating the offense
iii. D just needs to facilitate one step of the crime, but he needs the mens
rea regarding the whole offense – thus, he needed mens rea regarding
an ARMED drug sale, not just a drug sale that happened to involve a
gun
iv. Concur/Dissent – Alito & Thomas – Believes court uses knowledge and
purpose interchangeably while applying purpose
1. Agrees up until the court says D needed advanced knowledge;
they think it’s enough if he proceeds even if he learned of the gun
the moment before the crime
v. Note – according to some scholars, we can only consistent with
precedent if we consider the gun an attendant circumstance
Mens Rea with respect to Results and Attendant Circumstances
a. MR for the result element of the underlying offense
b. State v. McVay (RI 1926) – Can be an accomplice to criminal negligence by
aiding the commission of the negligent act, do not need purpose re: the result
IV.
i. Not an MPC case
ii. Here, the captain of the ship had duties that D knew about and knew the
boiler was not safe – D counseled the captain to disregard these duties,
so D aided and abetted the negligent act
c. Commonwealth v. Rosebuck (PA 2011) – D guilty as an accomplice for
unintentional murder because he purposefully aided the creation of the risky
circumstance in which the principal actor killed the victim
i. PA Statute – if result is an element of an offense, accomplice is liable if
his mens rea regarding the result is the same as the mens rea needed
for the result in the underlying offense
1. Like MPC 2.06(4) – need MR of the result element of the
underlying offense
ii. Concur
1. D’s argument is based on a false premise – one does not aid an
unintentional killing, one aids in the malicious act from which a
killing results
d. MPC On Attendant Circumstances – No set standard, deliberately sent to
individual courts to settle in each case
i. Hypo: A gives B a gun without knowing that B is a felon. Is liable as an
accomplice for B’s unlawful gun possession?
1. United States v. Gardner (6th Cir. 2007) – No
2. United States v. Canon (9th Cir. 1993) – Yes, Strict Liability re:
circumstances
3. MPC silent on this
ii. Hypo: B encourages A to have sec with F, with neither reasonably believing
F is actually a child. A is subject to Strict Liability per Statutory Rape, how
about B?
1. Commonwealth v. Harris (MA 2009) – Jury can convict B without an
instruction to find knowledge if B was present and had an
opportunity to make a judgement about F’s age
2. State v. Bowman (NC 2008) – Must prove D had knowledge of F’s
age
e. People v. Russell (NY 1998) – Can be complicit in the act of an enemy if you are
part of a joint venture, like a shootout, that results in death
i. Cites People v. Abbott – Drag Racing Case, complicit liability for partaking
in a joint venture
“Natural and Probable Consequences” doctrine – relaxes specific intent
requirement for complicit conduct
a. 20 states use this
b. People v. Luparello (CA 1987) – Appellate court applying a higher court
mandatory holding
i. Extends liability for the actual rather than planned result on grounds of
policy that accomplices should be responsible for harms they naturally,
probably, and foreseeable put into motion
V.
1. A kind of vicarious liability
ii. Concur – binding precedent mandates the holding, but still critiques the
holding as conflicting with culpability corresponding to guilt
1. Problem: Rule measure’s A’s culpability based on the mental
state of B or the circumstances
2. D is at least guilty of criminal negligence, but he is convicted of
M because of his co-conspirator’s malice aforethought
a. Irrational that D would be guilty of less if for some reason
the co-conspirator had less mens rea
3. Just like FMR – a relic of old-fashioned “wickedness” mens rea
c. Ray v. United States (DC 1995) – Reversed conviction as accomplice to an armed
robbery when D directed an undercover officer to someone from whom he could
buy an illegal gun and the seller robbed the officer, pointing to the huge
difference in punishment for illegal gun sales vs. armed robbery to argue D could
not have had intent for a violent crime
i. “Ordinary course of things” = planned events, not whatever MIGHT
happen
1. Doctrine only applies to reasonably predictable range of
outcomes
d. People v. Chiu (CA 2014) – affirmed the doctrine, but the accomplice cannot be
convicted of M1 under this rule because it cannot apply to the special
premeditative MR of M1
e. Pinkerton Doctrine in Conspiracy Law – conspirator may be liable for the
offenses of other co-conspirators if those offenses furthered the conspiratorial
objective
f. Rejected by the MPC – D is responsible for the means chosen to achieve a goal,
but not for other ends that happen to occur
Actus Reus for Complicity
a. CL – Assist or encourage
b. MPC – air or encourage or attempt to aid
i. Solicitation is enough
c. Wilcox v. Jeffery (UK 1951) – Encouragement
i. D convicted of encouraging a foreign jazz musician to break immigration
laws and perform a concert while in the UK by paying for a ticket and
writing a good review
ii. D guilty because he knew the concert was illegal and he did not object,
rather he affirmatively attended by paying for a ticket
d. MA Case – two observers of a rape acquitted even though they yelled “go for it”
e. 48 states outlawed knowing and intentional presence at a dog fight
f. 1st Amendment Concerns – Actus Reus can be speech
g. Materiality of an Act
i. State ex rel. Attorney General v. Talley (AL 1894)
1. A judge was an accomplice in a killing because he told a telegraph
operator to not deliver a warning message
2. The act was enough even if it was not the “but for” cause of the
killing so long as his act prevented a chance of escape
h. MPC 2.06(3)
i. What if D attempts to aid but no crime is committed?
i. Traditional – No liability because no crime
ii. MPC – Ignores results – can be guilty under attempt but not under
complicity
1. See: Attempted Murder
j. Unsuccessfully Aid, Successful Crime – complicity goal of MPC
i. Successful attempt, no crime – MPC leads to straight guilt
ii. MPC also finds guilt if the aid and attempts are both unsuccessful
Justifications and Excuses
I.
Affirmative Defenses
a. Even if all the elements are satisfied, you are not guilty
II.
Justifications – The act was permissible
a. Self-Defense
i. MPC
1. 3.01 – Justification as Affirmative Defense
2. 3.04(1) – Self-Defense (subjective test)
3. 3.04(2)(a) – Limits on When Use of Force Is Justifiable
4. 3.04(2)(b) – Deadly Force
5. 3.09(2) – Cannot argue self-defense for reckless/negligence
crimes if belief was formed recklessly/negligently
ii. Traditional Rule – one can use force if:
1. One reasonably believes
2. force is necessary to defend against the other’s
3. imminent us of unlawful force
4. and ones’ defensive force is proportional
a. Special rules for deadly force – one reasonably believes
the other is about to use deadly force or that the other
person is committing serious violent crime
i. What is Deadly Force?
1. Current Law – creating a substantial risk of
inflicting great bodily harm
a. Shooting a gun is always deadly
force
2. Hosnell v. State (Fl 2015) – Even warning
shots in the air is deadly force as a matter
of law when in the presence of people
iii. United States v. Peterson (DC Cir. 1973)
1. Blackstone – Law of self defense is a law of necessity
a. “necessity must bear all semblance of reality”
2. Condition for Acquittal on Self-Defense:
a. Actual or Apparent threat of a use of deadly force
b. Against D
c. Threat was unlawful and immediate
d. D believed he was in immediate threat of death of
unlawful injury, and the response was necessary to save
himself
iv. Self-Defense as Justification and Excuse
1. Justification is belief of threat was true
2. Excuse if belief was reasonable but wrong
v. People v. Goetz (NY 1986)
1. Self-Defense required reasonable belief of immediate threat
III.
2. Use of Deadly Force Limited to:
a. Reasonable belief the other person is about to use deadly
force
b. Reasonable belief the other person is about to commit a
kidnapping, rape, forceable sodomy, or robbery
3. “Reasonable” must have an objective basis, it does not mean
reasonable to this specific D
4. MPC 3.04(2)(b) inspired the NY statute
a. If belief was formed recklessly or negligently, can convict
of the corresponding homicide crime corresponding with
recklessness or negligence
b. Statutory Construction – NY added “reasonable” to NPC
text, so cannot possibly intend a subjective test
c. But test is reasonable in light of the circumstances and
can account for any prior experiences or specific
knowledge of a D
vi. MPC has a hybrid standard of objective test in the actor’s situation
1. Courts determine what counts as the situation
a. People v. Romero (CA 1999) – Evidence of importance of
honor in Hispanic culture is not admissible
i. Culture-shaped perceptions are inadmissible
b. Moore v. Makunne (10th Cir. 2013) – Is alcoholism and
drug addiction admissible?
vii. Honest but unreasonable belief
1. Present View – guilty of regular murder
2. Alt – State Mitigation Doctrine
a. Imperfect Self-Defense – voluntary manslaughter on
theory malice is missing and this is thus like heat of
passion
b. Involuntary MS Problem – is unjustified self-defense really
the same culpability as negligent killing?
c. MPC – Guilty of Negligent Homicide
i. 3.04(1)
ii. 3.09(2)
Excuses – The D is not entirely culpable
a. Insanity Defense
i. MPC
1. 4.01 – Insanity Defense (Substantial Capacity)
2. 4.03 – Insanity as Affirmative Defense
ii. Mental Illness – medical term, broader than legal insanity
iii. Insanity – Mental state at time of act sufficient to prelude liability
iv. Incompetence – Mental state at time of proceedings, D cannot
understand or participate
1. MPC 4.04 – No trial, sentencing, or conviction during
Incompetence
2. Dusky v. United States (US 1960) – Test: Can D consult with a
lawyer w reasonable degree of rational and factual understanding
of the proceedings?
3. Sell v. United States (US 2003) – Rules for involuntary medication
to create competence, weigh:
a. Gov interest in trying the crime
b. Meds unlikely to have side effects that interfere with D’s
ability to consult with counsel
c. Less intrusive treatments are unlikely to achieve the
desired result
d. Treatment is in D’s best medical interest in light of the
circumstances
v. Executions
1. Ford v. Wainwright (US 1986) – 8th Amendment prohibits
execution of the insane
a. Subsequently defined test: D insane if they lack a “rational
understanding” between the crime and punishment
2. ABA, SC, WA Standard is Higher – requires D to communicate
rational with defense counsel
3. Atkins v. Virginia (US 2002) – 8th Amendment prohibits executing
the mentally retarded because of culpability issues
vi. Procedural
1. How much evidence is needed to rebut a presumption of sanity?
a. CO – “some”
b. AL – create a reasonable doubt
2. Decision to plead insanity is up to D, but it can still creep into the
case
a. Hughes v. State (AR 2011) – D was not convicted but was
ordered committed because of Prosecutorial evidence of
mental illness
3. Traditional + 12 States
a. D bears the burden of production of evidence of insanity
b. Burden of proof switches to prosecution that a D is not
insane beyond a reasonable doubt
4. Contemporary – 3 quarters of states
a. Put the burden on D to prove insanity
i. Varying bars – some require preponderance of the
evidence, others clear and convincing evidence
ii. Product of Reagan assassination case
iii. WI – “reasonably certainty” burden
iv. Federal – “clear and convincing evidence” standard
vii. Civil Confinement – Some states have mandatory indefinite civil
confinement for insanity acquittals
1. Jones v. United States (US 1983) – upholds mandatory civil
confinement – it’s common sense that mental illness will continue
to create danger
a. Violent tendencies can be established with nonviolent
conduct like shoplifting
2. Jury Instruction – Typical rule is to not instruct a jury on the
consequences of acquittal on account of insanity
a. Shannon v. United States (US 1994) – Lack of instructions
reflects traditional division of duties between judge and
jury
b. Commonwealth v. Chappell (MA 2015) – Juries should be
instructed about civil confinement
viii. Guilty but Mentally Ill – MI and a dozen states giving a third option
besides guilt or acquittal in insanity cases
1. D is sentenced to prison, but with required psychiatric treatment
ix. Can either defeat mens rea of act as an affirmative defense
1. Ex: If someone believed they were strangling an orange when
they strangled a person, they don’t need to plead the insanity
defense; they can argue a mistake of fact and no mens rea
x. Traditional Test
1. M’Naghan (House of Lords 1843) Test – “He was suffering a
mental disease or defect as a result of which person did not
know what we doing or that it was wrong”
a. Presumption of sanity and acquit if at the time of the
crime, D did not know right from wrong due to a defect
of reason
i. Up to a jury
2. The King v. Porter (1933) – Jury instruction like the M’Naghtan”
rule
a. Purpose of criminal law is deterrence
b. Deterrence not advanced by punishing those who cannot
tell right from wrong
c. Only concerned with state of mind at the time of the act,
and the inability to distinguish right from wrong must be
due to a “disease, disorder, or disturbance”
xi. Irresistible Impulse – about action
xii. MPC – Mental Illness + lack of substantial capacity to appreciate
criminal conduct or to conform conduct to the requirements of the law
1. Don’t need complete inability to understand right or wrong –
“substantial capacity” recognizes degrees of insanity, up to jury to
decide
2. “Appreciate” instead of “know” right and wrong
a. “Knowledge” is abstract; appreciate better to show what
the person actually understood
xiii. Blake v. United States (5th Cir. 1969)
1. Overwhelming evidence of bank robbery actus reus, but question
is about insanity
a. D had lifelong history of mental illness
b. Plenty of psychiatric testimony of schizophrenia
2. Courts applies a standard from Davis v. United States (US 1897)
– actions are beyond the D’s control
a. Compares to MPC – lack capacity to distinguish
culpability –
3. D loses under Davis, but would have won under MPC
4. Note: Arguing to appellate court that Davis standard applied at
trial does not account for degrees – requires total lack of control,
“all or nothing” approach to insanity
a. Test is progress from M’Naghton but still has not moved
to degrees
b. MPC “substantial capacity” is better at capturing the
degrees of mental illness beyond total loss of control