General
Punishment
Purpose
Definition
Commentary
Specific deterrence
Crafting a punishment so as to
prevent that particular person
from acting in that manner again
(forward-looking)
General deterrence
Crafting a punishment to deter
potential wrongdoers other than
the wrongdoer from taking
similar actions (forwardlooking)
Bentham: Laws ought to
augment happiness. Punishment
in itself is evil, so it ought to be
utilized only to prevent a greater
evil. Pleasure and pain are
"wellsprings of human action."
Rules of proportion are often
useless; there is no sense in
punishing someone more than
necessary to prevent the action
from occurring, and overdeterrence simply encourages
extra crimes to be committed in
the commission of the lesser
crime
Issues with utilitarian approach:
 Possible to justify
punishment of the innocent
for deterrent purposes
 Not clear that
disproportionate
punishments would
necessarily have less utility
 Not clear how to measure
general deterrence
Rehabilitation
Focusing on reforming the
wrongdoer so as to prevent
further crimes (forward-looking)

Incapacitation
Preventing an individual from
acting in that way again
(imprisonment, generally)
(forward-looking)
Punishing someone because
they deserve it, and because
doing justice—either for the
victims, for society, or for some
higher principle demands it
(backward-looking)

Retribution
This is not at all the
American way, and it is
unclear how to do this
properly (but see,
Scandinavia)
This is essentially the
American way
Positive retribution: give people
exactly what they deserve; they
must be punished
Negative retribution: what
people deserve is a maximum;
discretion is appropriate
 Feeds strongly into
intuitions about right and
wrong, satisfies gut-level
feelings about justice
1
Types of Punishment
Direct






Indirect








Incarceration
Fees
Restitution
Monitoring
Restricted movement
Death
Social stigma
Loss of voting rights
Denial of employment/housing
Inability to serve on a jury
Monitoring
Loss of right to possess firearms
Deportation
Increased future punishment
Crimes v. Torts





Tort
Private
Preponderance of the evidence
Compensation as a chief goal
Loss of money as a chief punishment
Negligence standard





Crime
State
Beyond a reasonable doubt
Justice, retribution, deterrence as goals
Prison as a chief punishment
Mens rea standard
MPC and Punishment – 18 Section 3553(a): Sentencing
 Impose a sentence sufficient but not greater than necessary to comply with purposes set
forth in this section (negative retribution)… in determining sentence, the court shall
consider:
o Nature and circumstances of event
o Characteristics of defendant (specific deterrence, “just punishment”)
o Need for sentence imposed to reflect
 Seriousness of offense (retribution)
 Just punishment within in the law
 Adequate deterrence
 Protecting public from further crimes (incapacitation)
 Provide defendant with needed educational training, etc. (rehabilitation)
Enacted:
Mandatory minimums: Congress will decide that X crimes are deserving of at least Y
years (about 120 of these)
Sentencing guidelines: Presumptive but not mandatory sentences for particular
situations; created partly by judges, sociologists, incarcerated defendants
o Points on scale from 1 to 56; offense level, represents severity of defense. Measured
against how many times the person has offended; grid system
o Weight of drugs taken into account… 40% of cases in federal docket
o Everyone becomes responsible for full range of drug weight
o Amount of loss considered in white collar crime
2
American Criminology
History
 Much of criminal law a divergence from the intent of Founding Fathers
o i.e., never anticipated plea bargaining
 Economic dislocations, influx of immigrants following Civil War, led to an influx of crime;
in addition, police became better at their jobs; more crimes than trials could handle
o Plea bargaining emerges from this
 During 1920s, 20-25% of cases went to trial, the rest were pled or were dismissed
 Crime rates surged in the '70s
o Led to mandatory minimums, career offender/three strike statutes, sentencing
guidelines imposed by Congress creating massive penalties
 3% of criminal cases go to trial; no one wants to take the risk
 Potentially ~10% of people who plead guilty are actually innocent
Causes of Modern Crim System
 Not due to increased crime: crime rates declining steeply since the 1990s
o Some argue:
 High rates of arrest for crimes
 More punitive attitudes reflected by longer sentences
 Aggressive policies in enforcement of drug laws
Guiding Questions
 Is lenity a better approach?
 How do you balance issues of underdetterence with issues of overdetterence?
o Underdeterred: black on black crime; historically, issues with abuse in the home and
against women. Police won't arrest certain types of people. Under enforcement leads
to insecurity in certain communities
 Is criminal law predestined to reinforce these social inequalities?
 Consider what the goal of a given measure is, whether it achieves that goal, and what are the
collateral effects.
 Keep in mind that the enforcement criminal law involves multiple layers of people making
decisions (law enforcement, prosecutors, judges, juries etc.), so we must take the human
element into account when thinking about the system. In other words, is the issue with the
design or application of a law?
Regina v. Dudley and Stephens (1884)
Facts: Dudley and Stephens indicted for the murder of young Richard Parker on the high seas.
Brooks was involved too. Caught in a storm and swept into open ocean with little food and
water. Dudley proposed to Stephens and Brooks that lots should be cast to see who should be put
to death to save the rest, but Brooks wouldn't consent; the boy was not brought into the
conversation. Dudley, with the assent of Stephens, killed the boy, and they all ate him for a few
days
LQ: Is killing under these circumstances murder?
Deeper issue: Does necessity (is this necessity) justify or excuse murder?
3
Holding: This is murder
Reasoning: Evoke old writings by Lord Hale: If you cannot otherwise save your own life, you
can kill an assailant. If you steal clothes or money because you need it because you're hungry or
cold, you can still be punished. Lord Bacon: Necessity carries a privilege (This is dismissed as
"bad law," basically). Temptation is not necessity; here, it is not clear that there was necessity. If
we let these guys off the hook, we begin to divorce law from morality, and encourage these sort
of contrived defenses of real murder. Who could even really judge necessity? It's a slippery
slope, to be sure
Problems:
 Does punishment serve any purpose here?
 Problem of desert
o Is this justified, i.e. self-defense?
 Is the problem that they didn't draw straws?
o Is this excused, i.e. were they basically insane?
4
Actus Reus: Guilty Act
General
Guiding Questions
 Should every element of a crime be intentional or independent of the intent of another
element?
 It is generally said that criminal statutes should be strictly construed. What do you do
with a hybrid statute? (Jones)
Background
Actus reus ingredients: (1) a voluntary act, (2) that causes, (3) social harm
Conceptual challenge: What is the “time-framing” with which we are dealing? Current criminal
law demands only that there was a “voluntary act” at some point in committing a particular
crime. But how you determine whether there was a voluntary act, so as to create criminal
liability, depends on the “time-framing.”
 The court should focus on the relevant conduct in framing
 The court should focus on social goals
 The court should consider whether the “voluntary act” is in fact vacuous
Edge cases: Status offenses are not looked kindly upon by the Supreme Court. Crimes of
possession are often allowed. In crimes of possession, or “inchoate” crimes, “possession” is like
an omission in which a defendant has not dispossessed herself of property. Or, you could see
possession as proof that property was knowingly procured, which is the act.
MPC 2.01 Requirement of Voluntary Act; Omission as Basis of Liability; Possession as an
Act.
(1) A person is not guilty of an offense unless his liability is based on conduct which includes a
voluntary act or the omission to perform an act of which he is physically capable.
(2) The following are not voluntary acts within the meaning of this Section:
(a) a reflex or convulsion;
(b) a bodily movement during unconsciousness or sleep;
(c) conduct during hypnosis or resulting from hypnotic suggestion;
(d) a bodily movement that otherwise is not a product of the effort or determination of the
actor, either conscious or habitual.
(3) Liability for the commission of an offense may not be based on an omission unaccompanied
by action unless:
(a) the omission is expressly made sufficient by the law defining the offense; or
(b) a duty to perform the omitted act is otherwise imposed by law.
(4) Possession is an act, within the meaning of this Section, if the possessor knowingly
procured or received the thing possessed or was aware of his control thereof for a sufficient
period to have been able to terminate his possession.
Voluntary v. Involuntary Acts
5
Types of Action
Voluntary
Involuntary
 Conscious choice…
 Outside of your control…
 …which forms basis for holding you
 …and therefore seems subject to civil
liable (so says society)
sanctions rather than criminal sanctions
 Notable exception: an act may be found
 Escape valve: sometimes this “branding”
“voluntary” if it is technically involuntary,
is used as a way to avoid punishing
but is the result of an earlier, truly
someone criminally who the court thinks
voluntary act
is undeserving of criminal penalties
NOTE: Voluntary and involuntary are terms of art. They do not always align with common
understanding of the words.
RULES:
 CHAIN OF EVENTS: Taking an earlier, voluntary action can bestow liability for a later
action down a chain of events that results in criminal liability (Decina – epileptic car
driver). But for odd line-drawing, see also:
o Low – Low had a chance to give up the drugs before going to jail, so he
voluntarily possessed them in jail
o Barnes – Barnes was voluntarily possession drugs when he was arrested
o Eaton – Eaton did not have a meaningful chance to give up drugs before he was
arrested, so it was not voluntary possession
o Macias – Macias was not voluntarily in the United States...
 SLEEPWALKING: These tend to be cases at the margins, but acting while
sleepwalking does not constitute a voluntary act (Cogdon – killed daughter while
dreaming; however, some psychologists thought this represented an inner, unconscious
desire) (Newton – unconsciousness is a complete defense)
 EPILEPSY: If you chose to take the risk of driving while epileptic, you can be found
liable (Decina)
 HABITS, HYPNOSIS: Again, cases on the margins. Outcome tends to reflect whether
or not the judge and jury believe you. MPC treats habitual action done without thought as
voluntary.
Martin v. State (AL Court of Appeals 1944)
Facts: Martin was convicted of being drunk on a highway. However, officers arrested him at his
home, and then took him on the highway, where he manifested a drunken condition.
LQ: Is there a requisite actus reus element to Martin’s crime?
Holding: No. You need a voluntary appearance on the highway
Notes: The statute does not actually say you need a voluntary appearance. This was read into the
statute. Is this appropriate? Seems to be an example of the rule of lenity.
People v. Newton (Cal. Dist. Ct. App. 1970)
Facts: Newton is charged with murder of Frey, a police officer who died of bullets received in a
struggle with Newton. Frey stopped Newton's car, ordered him out, altercation ensued. Newton
had drawn a gun, and in struggle for possession, it went off and wounded Heanes. Heanes then
fired a shot at Newton's midsection. Newton eventually wrestled the gun away and fired several
6
point blank shots. Newton argues that he was unconscious during this time, and was only semiconscious or unconscious while crawling to the hospital
PP: Jury found Newton guilty of voluntary manslaughter. Frey appeals on grounds that judge
erred in failing to instruct jury on defense of unconsciousness
Holding: Unconsciousness is a complete defense to criminal homicide, and it makes sense that
he would have been unconscious because he had just been shot.
Acts v. Omissions





Generally, failure to act in a place where you have a legal duty can constitute a crime
Legal duties come from different sources: (Jones – failed to take care of baby)
o Statute
o Relationships
o Contracts
o Voluntary assumption
o Other areas of law (e.g. torts)
A moral duty does not establish a legal duty (Pope – failed to save child from insane
religious fanatic mother)
American legal tradition is less likely to have these Good Samaritan/failure to report
laws; reflects a commitment to individual autonomy
Distinction between “act” and “omission” is a very blurry:
o Barber and Bland: in both cases, a patient dies because support is removed. The
“affirmative act of euthanasia” is not regarded as murder because there was no
duty to provide support where ineffective
MPC § 9.06 – Omissions
 A person has no criminal law duty to act to prevent harm to another, even if she can do so
at no risk to herself, and even if the person imperiled may lose her life in the absence of
assistance
MPC § 9.07 – Exceptions to Omissions
 When a common law duty to act exists, assuming one was physically able of performing
an act, a defendant’s omission of the duty serves as a legal substitute for a voluntary act
 Duty to act when:
o Status relationship
o Contractual obligation
o Omissions following an act (creation of risk, voluntary assistance)
o Statutory duties (Good Samaritan Laws)
MPC § 9.08 – Medical Omissions
 Seems morally obtuse to get hung up on definitional issues—letting someone starve v.
removing a feeding tube. MPC says we should see this as an omission, however…
 This matter ought to be dealt with directly via statute
7
John Kleinig, Good Samaritanism
 Minnesota, Rhode Island, Vermont make it a criminal offense to refuse to render aid to
people in peril
 Florida, Hawaii, and Wisconsin have similar laws but only in limited situations
 Proposal: only require it when it is "easy and safe"
 People v Beardsley: Beardsley, who was married, was having an affair with Burns, and
he spent a weekend with her at his home. At the end of the weekend, Burns took a fatal
dose of morphine tablets, and Beardsley failed to call a physician to help her. She died,
he was convicted of manslaughter; court reversed because no legal duty
o Should formal relationships always be necessary?
o Extended to stepmother in People v Carroll
o Extended to adults with parent-like role in Staples v Commonwealth
Pope v. State (MD App. Ct. 1979)
Facts: Norris suffered from a severe mental illness and experienced episodes of religious frenzy.
Pope took Norris and her child into her house after church because they had nowhere to go.
Norris at one point thought her child was Satan, and beat her child in front of Pope. Pope did not
intervene, and did not seek medical attention for the child, who later died. Pope was charged
with first-degree child abuse while “having the temporary care, custody and responsibility for the
supervision” of the infant. The fifth count charged pope with misprision of felony under common
law, alleging Pope willfully concealed and failed to disclose the actions…
LQ: Is criminal liability acceptable when someone fails a moral obligation?
Holding: No. There’s no act here, and she was not acting in loco parentis.
Reasoning: If we make “acting compassionately and with concern” for a child and her mother
over a period of time a basis for criminal liability, we will have negative policy implications.
Furthermore, misprision of felony was a crime under common law of England, but it should only
exist upon action by legislature.
Barber v. Superior Court (Cal. Dist. Ct. App. 1983)
Facts: Following surgery, Herbert suffered cardiac arrest. They revived him, but he had to be
placed on life support with permanent brain damage. Family decided to take him off, but Herbert
breathed on his own. After consulting with the family, doctors removed his hydration and
nutrition, and he died. Barber and other physician charged with conspiracy to commit murder…
LQ: Is a physician under a legal duty to continue futile life-sustaining support absent objection
from a spouse or guardian?
Holding: No. Murder requires malice aforethought. No legal duty when someone cannot
survive, and especially when no kin wants him alive.
Airedale NHS Trust v. Bland (1993)
Facts: Not included.
LQ: May artificial feeding and antibiotic drugs be lawfully withheld from an insensate patient
with no hope of recovery, when it is know without treatment the patient will shortly die?
Holding: Yes. It is not lawful for a doctor to administer a drug to bring about death to his
patient, even through a humanitarian desire to end suffering, but withholding treatment is lawful.
The key distinction is an act which actively causes death. When a doctor discontinues
8
treatment, it is in substance not an act but an omission to struggle. An interloper who does the
same and actively prevents treatment administered by the doctor would be held liable.
Notes: SCOTUS has upheld a constitutional right to refuse unwanted medical treatment, which is
available even to a person in a permanent vegetative state, provided there is clear and convincing
evidence of the patient’s wishes
Common Law Crimes


Criminal law maintains a legal fiction that there are no common law crimes (i.e. judge
created crimes)
o Yet, as Jones suggests, common law can be the basis for criminal liability.
Concepts of relationship and voluntary assumption of duty are not necessarily
grounded in a law passed by a legislature.
Consider where a source of criminal liability is coming from, and how you feel about
that. Common law crimes can evolve to meet the actual shape of situations faced by
courts, but raise concerns about notice to potential defendants, and unelected lawmakers.
Jones v. United States (DC Circuit 1962)
Facts: Defendant charged with involuntary manslaughter of ten month old Anthony Green, son
of Shirley Green. Anthony placed with defendant, Shirley lived in the house for an unknown
period of time, conflict as to whether or not the defendant was paid for taking care of the baby
PP: Jones is found guilty of involuntary manslaughter. Jones appeals, arguing that the court
should have instructed the jurors to find beyond a reasonable doubt, as an element of the crime,
that appellant was under a legal duty to supply food and necessities to Anthony Lee
Legal reasoning for reversal:
Four situations in which failure to act may constitute breach of legal duty:
o Status relationship
o Relationship imposed by statute
o Contractual duty
o Voluntary assumption of care that secluded the helpless person as to prevent others
from rendering aid
Evidence is in conflict as to the latter two elements, on which the state stakes their argument.
Therefore, instructions should have been given concerning the necessity of finding a legal duty
of care
RAKOFF: This is a court-created standard, and is not in a statute. If someone was prosecuted
under one of the four categories, they would be prosecuted under a standard not expressed by the
legislature—and it could be changed tomorrow.
9
Mens Rea: Guilty Mind
Principles and Categorization
Principles
 We ask for mental culpability because
o Filtering: Allows us to filter out actions we don’t want to criminalize
o Scaling Punishment: Allows us to impose differing punishments for the same act
o Sense of Fairness: To punish without requiring mental culpability can be unfair
o Efficiency: Difficult to deter what a person lacked culpability for, also large systemic
efficiencies where people accept/believe system is just.
 A crime can have more than one mens rea, specific filtering and scaling purposes
 To satisfy the mens rea element of a crime, your culpability must match that crime
o Regina v. Cunningham (1957 UK): Though it might be thought of as malicious to
steal something, that didn’t satisfy the requirement that the defendant maliciously
cause gas to be administered to his mother in law. Malice doesn’t mean “wickedness”
– requires intent to harm or knowledge of potential harm and action regardless; some
foresight of consequence.
o Regina v. Faulkner (1877 UK): Again, intention here was to steal rum, so that might
be an intentionally act, but that doesn’t mean that burning the ship down was, just
because trying to steal the rum caused that. “Malice” requires intent or reckless
disregard with knowledge of probable harm.


Types of Mens Rea
Specific Intent
General Intent
An action done with a specific purpose in  This is like the burglary example without
mind: burglary, for example, is breaking
clear intent of stealing. In this case, it
in with the intent of stealing
would be downgraded to “breaking and
entering.”
Refers to demand that you have
“background information,” like, for
example, the facts that elevates marriage
into bigamy (“attendant circumstances”)
Categories of Mens Rea
Elements analysis and mens rea (state of mind of wrongdoer)- was 78 types, turned into four:
 Intent (worst of all)
 Knowledge
 Recklessness (minimum default if statute is silent)
 Criminal negligence
10
MPC § 15.05 – Categories for Criminal Intent (Mens Rea):
Greater to lesser. The greater include the lesser (intent includes all the others, etc.)
 “Intentionally”: conscious objective is to cause such result or to engage in such conduct.
 “Knowingly”: aware that his conduct is of such nature or that such circumstance exists.
(practically certain)
 “Recklessly”: aware of and consciously disregards a substantial and unjustifiable risk
[of] such result … or that such circumstance exists. The conduct must be a gross
deviation from what a reasonable person would do; drunkenness is no excuse.
 “Criminal negligence”: fails to perceive a substantial and unjustifiable risk [of] such
result or that such circumstance exists. The conduct must be a gross deviation from what
a reasonable person would do.
MPC § 2.02(2) – Culpability Definitions
A person acts [culpability level] with respect to [type of objective element] when…
Culpability Level
Purposely
Knowingly
Recklessly
Negligently
Type of Objective Element
Circumstance
Result
“he is aware of such
“it is his conscious object
circumstances or hopes that
… to cause such a result”
they exist”
“he is aware … that such
“he is aware that is it
circumstances exist”
practically certain that his
conduct will cause such a
result”
“he consciously disregards a
“he consciously disregards
substantial and unjustifiable
a substantial and
risk that the material element unjustifiable risk that the
(i.e., the circumstance)
material element … will
exists”
result from his conduct”
“he should be aware of a
“he should be aware of a
substantial and unjustifiable
substantial and
risk that the material element unjustifiable risk that the
(i.e., the circumstance)
material element … will
exists”
result from his conduct”
Conduct
“it is his conscious object
to engage in conduct of
that nature”
“he is aware that his
conduct is of that nature”
11
To determine mens rea required for conviction in any situation, MPC analysis involves 2
steps:
1. Determine the “material elements” of an offense
a. Criteria for making determination found in MPC §1.13(9), which defines an
“element,” and in §1.13(10), which specifies when an element is “material”
2. Must determine which type of mens rea is required with respect to each material element
a. Governed in first instance by terms of offense itself, then, if ambiguous, by rules
of MPC §2.02(3) and §2.02(4)
Distinctions:
 Intentionally vs. Knowingly vs. Recklessly:
o [Intentionally] drives thru Times Square in order to try and run over pedestrians
o [Knowingly] driving thru pedestrian part of Square at high speed (substantially
certain to kill someone)
o [Recklessly] driving 100 mph on FDR Parkway (creating risk)
 Recklessly vs. Negligently:
o Reckless- prosecutor needs to prove defendant was aware of risk and
disregarded it.
o Negligence- prosecutor must show that D failed to grasp risk, no need to show
they perceived it.
o The moment you know the risk, you cross over to reckless.
Proving Intent
Unless defendant admits mental facts, prosecutor must prove mens rea indirectly, through socalled circumstantial evidence and the inferences one can draw from it
Difficulty of proving what was in defendant’s mind beyond a reasonable doubt is one reason
why prosecutors may argue that certain mental facts should not have to be proved at all
When an offense includes awareness or intent as an element, process of proving it often
facilitated by resort to various kinds of presumptions
12
o E.g. often said a person is presumed to intend natural and probable consequences of
acts
Presumptions are constitutional only when we can have confidence that over all criminal cases in
general, presumed fact will always be present when fact used to trigger presumption is present
Court does permit use of permissive inferences, in which judge informs jury about a factual
conclusion it is permitted but not required to draw
o Allowed whenever conclusion is “more likely than not” to be true under
circumstances of a particular case
Standard Mens Rea
Regina v. Cunningham (Eng. 1957)
Facts: Appellant, Cunningham, was to move into a duplex currently owned by his prospective
mother-in-law but uninhabited. The duplex was walled in half in the basement by shoddily
cemented together rubble, creating a honeycomb-like quality. Appellant went to the gas meter in
the basement, wrenched it from the pipes, and stole it with its contents—he pled guilty to this
crime. Some of the gas escaped and nearly suffocated a tenant in the other half of the duplex,
Mrs. Wade. State brings the case that the appellant acted maliciously as invoked in the Offenses
against the Person Act
LQ: Did Cunningham act within the scope of the Offenses against the Person Act?
Holding: No, the term “maliciously” demands “foresight of consequences”; must be done
recklessly
Reasoning: He did NOT act in the scope of the statute—some kind of mens rea is necessary.
The term "maliciously" demands "foresight of consequences.” The prosecution did NOT prove
this, and the judge wrongly gave jury instructions to suggest that "malicious" merely means
wicked. Quashed.
Regina v. Faulkner (Eng. 1887)
Facts: Guy goes to the bottom of a boat to steal some rum. Lit a match to see better. Alcohol
caught fire, burned the entire ship down. Faulkner charged with maliciously burning the ship
down
LQ: Is Faulkner criminally liable for burning down the ship?
Holding: No. No mens rea here.
Reasoning: Quashed on appeal, as the lower court judge suggested that any crime committed
during the execution of another crime automatically fulfills the mens rea requirement, when there
was no real showing of true malice
Criminal Negligence & Willful Blindness
MPC § 15.05(4) – Criminal Negligence
A person acts with criminal negligence with respect to a result or to a circumstance described by
a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that
such result will occur or that such circumstance exists. The risk must be of such nature and
13
degree that the failure to perceive it constitutes a gross deviation from the standard of care
that a reasonable person would observe in the situation.
Question hinges on where to draw the line between criminal negligence and civil negligence.
● There is a concept of “extra” negligence: "wanton and willful negligence," "gross
negligence," and more illuminating yet, "that degree of negligence that is more than the
negligence required to impose tort liability."
● The key distinction between reckless and negligence is degree of awareness of the risk
○ Crim neg is “appreciably greater than that required for ordinary civil negligence
by virtue of the ‘substantial and unjustifiable’ character of the risk involved and
the factor of ‘gross deviation’ from the ordinary standard of care.” An ordinary
person (look to “the community's general sense of right and wrong”) would have
seen the risk/there is a duty to have seen the risk
But there are divergent understandings of how to distinguish civil and criminal negligence:
 State v. Hazelwood (Alaska 1997): Though idea of civil and criminal negligence is
distinct, not a major difference, court declines to read it to mean gross negligence.
Negligence provides sufficient assurance that criminal penalties will only be imposed
when the conduct at issue is something society can reasonable expect to deter.
o Dissent: Fundamental fairness requires a higher standard, negligence is fine for
allocating burden but not punishment.
 Santillanes v. New Mexico (N.M. 1993): Trial judge instruction that defendant’s
negligence need only be akin to what’s required for civil liability was incorrect, higher
standard required.
 Elonis v. United States (SCOTUS 2015): Tort law premise of how threatening Facebook
posts would be understood not sufficient – conventional requirement for criminal law is
awareness of some wrongdoing
State v. Hazelwood (AK 1997)
Facts: Defendant, captain of oil tanker, ran ship aground a reef, pouring 11 million gallons of oil
into ecologically sensitive waters. Prosecuted under a "negligence" standard for "discharging,
causing to be discharged, or permitting the discharge of petroleum" into the water. Hazelwood
argued statute should be interpreted to require criminal negligence, which is more than the slight
degree of negligence necessary to support a civil action
PP: Trial judge rejected, intermediate reversed, and Alaskan Supreme Court reinstated trial
judge decision
LQ: When should we impose criminal negligence, as opposed to civil negligence?
Holding: Criminal negligence is appropriate when the conduct at issue is something society can
reasonably expect the law would have special interest in deterring
Reasoning: Difference between criminal and civil negligence: under both, a person is negligent
when failing to perceive a substantial and unjustifiable risk that a particular result will occur.
But, criminal negligence requires a greater risk; standard is met only when risk is of such a
nature that the failure to perceive it constitutes a gross deviation from the standard of care that a
reasonable person would observe in the situation… It must be so gross as to merit not just
14
damages, but punishment. Some argue that criminalizing conduct that lacks intent fails the duty
of criminal statutes, as it is not based in subjective awareness---but we should recognize that
coercion is a powerful tool in the law to force people to think about what they're going and take
better care. Criminal penalties should only be imposed when conduct as issue is something
society can reasonably expect to deter
Dissent: You need to show something more than failure to act reasonably to imprison someone.
Mere negligence is insufficient to justify punitive damages; how do we get to imprisonment on
the basis of greater negligence alone?
Statutory Construction
Ambiguity in a Statute:
 That a statute lacks a mens reas can mean a court will read one in
o See, e.g. Elonis v. United States (2015) (where defendant made interstate threats
against ex-wife)
 MPC Approach:
o If statute is silent, recklessness is minimum default
o If statute is ambiguous, you import mens rea specified in another part
Santillanes v. New Mexico (SCOTUS 1993)
Facts: Defendant cut seven-year-old nephew's neck with a knife during an altercation, convicted
of child abuse under a statute that defines that offense as including "negligently… causing… a
child to be… placed in a situation that may endanger the child's life or health"
PP: Trial court gave jury a standard definition of negligence sufficient to support liability
LQ: What standard is required by the aforementioned statute?
Court: Supreme Court found trial court’s instruction erroneous; this requires criminal
negligence. When moral condemnation attaches to the conviction of a crime, the crime should
typically reflect a mental state warranting that contempt. Scope of statute punishes the morally
culpable!
Elonis v. United States (SCOTUS 2015)
Facts: Elonis posted violent language directed at his estranged wife online. US charged Elonis
with making interstate threats in violation of a statute that did not mention any mens rea
requirement. Elonis argued that he did not violate the statute because he did not intend to
threaten anyone.
PP: DC instructed jury to use a RPS in determining if the posts constituted threats. Elonis was
convicted. Court of Appeals affirmed, holding that the statute did not require intent to
communicate a threat, but rather only an intent to communicate words that a reasonable person
would deem a threat.
LQ: What is required by the statute?
Holding: Criminal statutes require a mens rea element. Criminal statutes require a higher level
of culpability than negligence cases.
Dissent (Alito): If a mens rea is not in the statute, we should not infer any requirement in excess
of recklessness.
15
Strict Liability
General




No mental culpability requirement for a strict liability crime
Departs from our traditional concept of criminal liability, which requires a defendant to
have some level of mental culpability
Justification for strict liability crimes can vary, generally center on:
o More efficient risk distribution
o Maximum deterrence
o Resolves difficulty of proving certain issues
May also be referred to as “public welfare offenses,” but favor of use can shift over time
o United States v. Balint (1922): Applied defendants charged with to drug
distribution
o United States v. Dotterweich (1943): Applied to company executive about
mislabeled drugs
o Morissette v. United States (1952): Denied for punishing scrap metal scavenger
o Staples v. United States (1994): Denied for automatic weapon possession statute
Statutory Construction


Strict liability crimes are not necessarily announced as such
o Statute might not specify a mens rea, where statute is silent a court will have to
decide proper interpretation
Note: A crime could have a mens rea and be thought of as strict liability. We ask whether
the crime requires mental culpability for the criminal act. Akin to discussion about
general versus specific intent.
o Morissette v. United States (1952): Court could have read “knowingly
converting” to just require that he knew it wasn’t his property
o Staples v. United States (1994): Court could have statute to just mean “knowingly
possessed a gun, and that gun was automatic”
o United States v. X-Citement Video, Inc. (1994): Court could have read “knowingly
transport” to refer just to “knowingly transport pornography, which had minors in
it,” and not to require proof that defendant knowingly transported pornography of
minors
 By contrast, statute in “strict liability” version could not reach UPS driver
who didn’t know what was in the box
United States v. Balint (SCOTUS 1922)
Facts: Defendants indicted for violating Narcotic Act of 1914 by selling derivatives of opium
and coca leaves without the necessary order form—punishable by up to five years in prison.
Defendants argued that the indictment failed to charge that they knew they were selling
prohibited drugs…
LQ: Does the statute demand knowledge of what they were selling?
Holding: No
16
Reasoning: This is a question of legislative intent. It is possible that such a requirement would
seriously inhibit purpose of the statute. It is OK for an act of this sort that merely pushes people
to do more research into what they're selling
United States v. Dotterweich (SCOTUS 1943)
Facts: Buffalo Pharma purchased drugs from manufacturers, repackaged, and shipped to
physicians and others under its own labels. On at least two occasions, the manufacturer’s labels
were incorrect, causing Buffalo Pharma and its general manager, Dotterweich, to be prosecuted
for shipping misbranded products in violation of the Federal Food and Drug Act.
PP: DC acquitted Buffalo Pharma but convicted Dotterweich. Dotterweich appealed and the
Court of Appeals affirmed the lower court.
LQ: Does the FFDA require mens rea?
Holding: No. The FFDA intends to ensure some measure of societal protection against illicit or
impure food and drugs within interstate commerce. It does not require mens rea; the mere act is
made criminal. Congress chose to place the burden on those who have the opportunity of
availing themselves of the law’s requirements and best preventing the purported behavior. This is
a public welfare offense.
Morissette v. United States (SCOTUS 1952)
Facts: Morissette was a scrap metal dealer, and he entered an Air Force bombing range
(abandoned) and took some bomb casings. He flattened them out and sold them, and was
indicted for “knowingly converting” government property. Morisette admitted he knew he was
taking Air Force property but thought it had been abandoned.
PP: Trial court judge instructed the jury that “the question on intent is whether or not he
intended to take the property.” Convicted, appealed. Court of appeals affirmed, assumed
Congress meant for term “knowingly convert” to mean an intentional exercise of dominion over
property not belonging to individual.
LQ: Does this act which is bad in itself, like larceny, require mens rea?
Holding: Yes.
Reasoning: Stealing, larceny, etc. were the earliest offenses known to law and courts have
consistently required intent. Congressional silence does not mean they eliminated that element.
Furthermore, the justifications of “public welfare strict liability” are simply not present here.
Required specific intent as to the nature of the property.
Staples v. United States (SCOTUS 1994)
Facts: Staples possessed a semi-automatic rifle that originally had a metal piece that prevented
automatic fire. Staples filed down this piece, meeting the definition of an automatic weapon
under the National Firearms Act. He did not register this weapon, as required by the act.
Defendant believed the gun was incapable of firing, and argued for an instruction that the
government prove he “knew that the gun would fire fully automatically.”
PP: DC denied instructions demanding a mens rea element—that he knew the firearm would fire
automatically.
LQ: Does the NFA possess a mens rea requirement?
Holding (Thomas): Yes. Absent a clear statement that there is no mens rea, we should not
interpret a statute to eliminate the mens rea requirement. Public policy disfavors criminal statutes
with no mens rea requirement. Government suggests that this is a public welfare regulation, and
17
the burden is on the defendant. But this is a common activity and innocent conduct, and it is
unthinkable to imagine that Congress meant to subject law-abiding citizens to prison sentences
for unknowingly possessing automatic weapons.
Concurrence (Ginsburg): Real question is what level of knowledge is required: (1) knowledge
of possession, (2) knowledge that the object is dangerous, (3) knowledge, beyond dangerousness,
of the characteristics that render the object subject to regulation. Registration requirement placed
on a limited class of firearms, those they considered “especially dangerous.” Guns are generally
“dangerous,” so people owning guns in Staples’ position would not inquire further as to the need
for registration. Only a reading requiring knowledge of the characteristics that render the object
subject to regulation serves purpose of mens rea: to shield people against punishment for
apparently innocent activity.
Vicarious Liability





Criminal vicarious liability can be thought of as a form of strict liability
o We ask if the person who committed the criminal act was under your care/acting
as your agent at the time?
o If so, that you did not take the action or approve the action does not matter
Can take differing forms, for example:
o Entity Liability
o Parental Liability
Vicarious liability generally upheld whenever conviction only resorts in fines
Absence of a voluntary act is still an excuse to strict liability offenses
Not universal, may be treated with apprehension
o See State v. Guminga (Minn. 1986): Defendant is a restaurant owner, waitress
serves alcohol to a minor, defendant charged via vicarious liability, he disputes as
violation of due process, court agrees.
 But consider what dissent notes, that vicarious liability imposed by
legislative design, defendant chose to participate in system to serve
alcohol.
 Notably, under this case, can still be imputed to a corporation itself
State v. Guminga (Supreme Court of MN 1986)
Facts: During an undercover operation, two investigators, along with a 17-year-old, ordered an
alcoholic beverage. Waitress did not ask for ID. Owner of restaurant charged with a state law
that imposed vicarious liability on an employer whose employee served intoxication liquid to a
minor. Guminga was not aware of the waitress’s actions. Trial court certified question to
Minnesota Supreme Court as to whether this statute violated the DPC.
LQ: Is it a violation of the DPC for an individual to be convicted of a crime punishable by
imprisonment for an act he did not commit or have knowledge of?
Holding: Yes
Reasoning: The private interests involved are great here, and although the statute is in the public
interest, that is not enough to skirt due process. Civil fines and license suspension are more
appropriate means to deter violation of liquor laws.
Dissent: Gravity of problems associated with minors who consume alcohol justifies importance
by legislature of harsher punishment on those who help contribute to those problems.
18
Regine v. City of Sault Ste. Marie (Supreme Court of Canada 1978)
LQ: Should a category of offenses between traditional criminal offenses and absolute liability
offenses exist, known as public welfare offenses, where the mere act is a violation and there is no
requirement to prove mens rea?
Holding: Yes.
Reasoning: There are compelling reasons for the application of strict liability in public welfare
offenses:
 Insure social interests are being protected
 Administrative efficiency
 Minor penalties don’t carry a troublesome stigma
 Would not punish the entirely blameless
Arguments against absolute liability:
 Violates fundamental principles of penal liability
 Rests on assumptions which have not been, and cannot be, empirically established
o No evidence that high standard of care results from absolute liability
 No stigma irrelevant, because accused will suffer lost time, legal costs, exposure to
processes of criminal law at trial and opprobrium of conviction
 In serious crimes, the public interest is also involved and mens rea must still be proven
Shouldn’t have to choose, should have three categories of offenses:
 Criminal offenses that require prosecution to prove mens rea
 Public welfare offenses where mere act is sufficient unless there is a showing of
reasonable care
 Strict liability offenses where the defendant could not show lack of fault to exculpate
Notes: Strict liability subsequently ruled unconstitutional by Canadian Supreme Court
19
Mistakes
Mistake of Fact




Mistake of fact is just that: a defendant mistakenly assessed a fact that they relied on in
committing the crime.
o Examples: Identity of a person, owner of property, whether a gun was loaded etc.
Mistake of fact operates by affecting whether and how the elements of a crime are
satisfied, particularly negating a state of mind.
o Example: A person must intentionally take the property of another person. If you
think it was yours then your mistake of fact affects your intent.
But, the crime has “care” so to speak about your mistake of fact.
o E.g. Regina v. Prince (1875 UK): Statute does not provide that a mistake about
girls age is a defense, explicitly or implicitly.
Imposing criminal liability despite a mistake of fact highlights both our concern about the
administrability of criminal law if we allowed it to always negate liability AND that we
may want to impose liability nonetheless.
Moral-wrong principle
 "A defense of mistake rests ultimately on the defendant's being able to say he has observed
the community ethic…"
Acoustic separation
 Two statutes within one: one signals to public that you shouldn't take young girls from
parents, the other says don't prosecute or convict unless the girl is under 16
Lesser-crime principle
 When a defendant knowingly commits a crime, he runs the risk of his crime resulting in
greater crime, and mistake of fact can be no defense (raised by Brett dissent in Regina v.
Prince)
 Critiques: violates bedrock principle of proportionality and gives prosecutors too much
discretion/leverage
MPC Approach



Dictates that mistake and mens rea are connected and cannot be addressed as separate
issues
Claims about mistake must be resolved by determining whether the mistake negates the
mens rea required for the crime in question
Re lesser crime principle, MPC presumes that, in general, aggravating circumstances
should trigger more severe penalties only when defendant was subjectively aware of a
risk that the circumstances existed
MPC § 2.04(1)
(1) Ignorance or mistake as to a matter of fact or law is a defense if:
(a) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or
negligence required to establish a material element of the offense; or
20
(b) the law provides that the state of mind established by such ignorance or mistake
constitutes a defense.
(2) Although ignorance or mistake would otherwise afford a defense to the offense charged, the
defense is not available if the defendant would be guilty of another offense had the situation been
as he supposed. In such case, however, the ignorance or mistake of the defendant shall reduce the
grade and degree of the offense of which he may be convicted to those of the offense of which he
would be guilty had the situation been as he supposed.
Regina v. Prince (England 1875)
Facts/PP: Defendant convicted to taking unmarried girl under 16 years out of possession and
against will of her father. Against criminal statute that forbids this without permission of father
or mother if under 16 years. The girl was 14, but told defendant she was 18, and defendant
honestly believed that statement, and belief was reasonable. Court for Crown affirms conviction
of appeal
LQ: Are we bound to construe the statute as though the words requiring a mens rea requirement
are there, on account of the rule that mens rea is necessary to make an act a crime? [court finds:
no]
Reasoning: The instant act forbidden is wrong in itself, if without lawful cause—not illegal, but
wrong. Legislature has determined if anyone does this wrong act, he does it at the risk of her
turning out to be under 16. Consider: if he had believed he had the father's consent, he would
have no mens rea. He would not know he was doing the act forbidden by statute. HE would not
know he was doing an act wrong in itself
Dissent: There can be no conviction with absence of criminal mind or mens rea. "Mistake of
facts, on reasonable grounds, to the extent that if the facts were as believed the acts of the
prisoner would make him guilty of no criminal offense at all, is an excuse…"
People v. Olsen (Supreme Court of CA 1984)
Facts: Shawn M was 13 and 10 months. Statute concerns people under 14. Shawn sleeping in
camper. Shawn: Garcia broke in, told Shawn to let Olsen make love to her, or he would stab her,
father tried to disrupt, got stabbed. I did tell him that I was over 16, and I look so… Garcia:
Shawn invited him, asked Olsen to make love first, father entered…
PP: Court found Garcia and Olsen guilty of violation 288 (a), lewd conduct with a child under
14. Court rejected argument that a good faith belief as to the age of the victim was a defense.
Appellant sentenced to 3 years in prison
LQ: Is a reasonable mistake as to a victim’s age a defense to a charge of lewd of lascivious
conduct with a child under the age of 14?
Holding: No.
Reasoning: In People v. Hernandez (1964), court overruled established precedent and held an
accused’s good faith, reasonable belief that a victim was 18 yo or more was a defense to a charge
of statutory rape. A mistake of fact relating to gravity of offense will not shield a deliberate
offender. There exists a strong public policy to protect children of tender years. Section 288
enacted for that purpose, and Hernandez court recognized it would not contemplate applying
mistake of age defense in cases where the victim is of “tender years.”
Conclusion supported by legislature allowing for probation in cases of good faith belief
where victim was 14 years or older. Legislature has also determined that persons who commit
sexual offenses on children under 14 should be punished more severely that those under 18.
21
Dissent: Statutory construction is convincing, but the idea that a person who acted with such a
belief, and is not otherwise shown to be guilty of any criminal conduct, can be convicted and
sentenced to prison seems problematic. Strict liability should not apply here, especially not with
prison sentences. Blameworthiness Is incredibly important, and it seems that while there may be
some duty of reasonable inquiry to establish lack of mens rea element, we cannot tolerate
imposition of prison without some such evidence
B (a minor) v. Director of Public Prosecutions (England 2000)
Facts: 15-year-old boy asked 13-year-old girl to perform oral sex. Boy charged with inciting a
child under the age of 14 to commit an act of gross indecency
PP: At trial, accepted that B had honestly believed that the girl was over 14, but trial justices said
it was no defense. B changed plea to guilty to preserve right to appellate review.
LQ: Does the holding of Regina v Prince governed in this case, and if so, should courts should
adhere to it?
Holding: No and no. R v. Prince is at variance with common law mens rea presumption, and to
that extent, reasoning must be regarded as unsound and later decisions read in light of present
decision on nature and weight of common law presumption.
Reasoning: Statute, as is common, says nothing about mental element. Starting point for the
court to presume mental element as essential unless Parliament indicated a contrary intention
either expressly or by necessary implication. Presumption is expressed traditionally to effect that
honest mistake does not avail defendant unless mistake was made on reasonable grounds. Over
years, courts have rejected reasonable belief approach in favor of honest belief approach.
No general agreement that strict liability is necessary in enforcement of law protecting
children in sexual matters. Cannot find, in statutory context or otherwise, any indication of
sufficient cogency to displace common law presumption of mental element. Necessary mental
element therefore is absence of genuine belief by accused that victim was 14 years of age or
above.
Garnett v. State
Facts: Young retarded man was 20, IQ of 52, 5th grade reading level. Friends with this 13-yearold girl Erica. Supposedly Erica told Raymond she was 16, and he acted with that belief, had
intercourse, she gave birth to a baby
PP: Trial court found Raymond guilty, decided it was a strict liability crime
Court: Statutory rape laws often justified on "lesser legal wrong" theory or "moral wrong"
theory. Still deserves punishment because the act was immoral or wrong anyway… Language of
statute does not seem to allow for the defense of mistake of fact.
Mistake of Law



General legal principle: Ignorance of the law is no defense
In practice, mistake of law can refer to:
o Misunderstanding the law e.g. Marrero
o Not knowing about the law e.g. Lambert
Two ways mistake of law operates:
22
o Precluding criminal liability
o Interacting with the statute
How Mistake of Law Operates
Precluding Criminal Liability
Interactions with the Statute
 Idea that your mistake of law precludes
 Idea that your mistake of law reduces or
criminal liability based on a concept of
removes criminal liability based on the
fairness
elements of the crime
o i.e. it was the law at the time or I
o i.e. my mistake of law makes it so
acted out of reliance on what
that I don’t satisfy the elements of
should be an authoritative source
this crime (though you might still
o *Incredibly rare to see it work
satisfy another crime/lower level
of the same crime)
New York and MPC definitions provide
o Argument not uncommon
examples of the concept at play:
To “interact” with the statute, it must be
 New York: A person is not relieved of
structured in a way that your mistake removes
criminal liability for conduct because he
engaged in such conduct under a mistaken or reduces your culpability.
belief that it does not, as a matter of law,
 For example: Destruction of Property
constitute an offense, unless such
(N.Y. Penal Law § 145.10) (2016): A
mistaken belief is founded upon an
person is guilty of criminal mischief in the
official statement of the law contained in
second degree when with intent to
(a) a statute or other enactment …[or] (d)
damage property of another person, and
an interpretation of the statute or law
having no right to do so nor any
relating to the offense, officially made or
reasonable ground to believe that he [or
issued by a public servant, agency, or
she] has such a right, he [or she] damages
body legally charged or empowered with
property of another person in an amount
the responsibility or privilege of
exceeding one thousand five hundred
administering, enforcing or interpreting
dollars.
such statute or law.
o If you misread a law about trees
bordering property lines and went
 MPC 2.04(3)-(4): (3) A belief that
and cut down your neighbor’s tree,
conduct does not legally constitute an
then your mistake of law could fit
offense is a defense to a prosecution for
into the “reasonable ground to
that offense based upon such conduct
believe” part
when:
(a) the statute or other enactment defining  For example: Burglary (N.Y. Penal Law §
the offense is not known to the actor and
140.25) (2016) A person is guilty of
has not been published or otherwise
burglary in the second degree when he
reasonably made available prior to the
knowingly enters or remains unlawfully in
conduct alleged; or
a building with intent to commit a crime
therein, and when. . .[t]he building is a
(b) he acts in reasonable reliance upon an
dwelling
official statement of the law, afterward
o If you misread an eviction notice
determined to be invalid or erroneous,
and thought you could legally
contained in (i) a statute or other
enter the building even though you
enactment; (ii) a judicial decision, opinion
went to steal stuff, you might
23

or judgment; (iii) an administrative order
or grant of permission; or (iv) an official
interpretation of the public officer or body
charged by law with responsibility for the
interpretation, administration or
enforcement of the law defining the
offense.
(4) The defendant must prove a defense
arising under Subsection (3) of this
Section by a preponderance of evidence.
argue that you didn’t knowingly
enter the building unlawfully
Awareness of the Law as an Element
 A statute can require that the government prove that the defendant was aware they were
violating the law
 Relatively rare, can be thought of as at the opposite extreme from doctrine of strict liability
crimes
 May be explicit in the statute or read in by a court. Justifications offered for reading it in can
be unsatisfying
o See e.g. Cheek v. United States (1991): Congress recognized that in an area as
complex as tax law, making awareness of the law an element of the crime will lessen
impact on innocent conduct.
Under label “entrapment by estoppel,” SCOTUS has sometimes held it a violation of due process
to convict a defendant for conduct that governmental representatives, in their official capacity,
had earlier stated was lawful (akin to MPC allowing mistake for reliance on official
interpretation”
o Doctrine first recognized in Raley v. Ohio (1959)
People v. Marrero (New York Court of Appeals 1987)
Facts/PP: Defendant arrested in a Manhattan social club for unlicensed possession of a loaded
pistol. Defendant argued that there is an exception for him as a corrections officer. Statutory
framework is complex; plausible that he read the statute in this way in good faith. Pretrial motion
to dismiss granted. Appellate Division reinstated, found him guilty, he was not a peace officer
within the meaning. Defendant appealed because the judge refused to instruct jury to acquit if it
found that Marrero reasonably believed he qualified for exemption
LQ: Whether a defendant's personal misreading or misunderstanding of a statute may excuse
criminal conduct in the circumstances of this case
Holding: No.
Reasoning: In Gardner, defendants misread a statute and believed that their conduct was legal
 Court insisted that mistake of law did not relieve them of liability
 This case falls within this rationale because the weapons possession statute violated by
defendant imposes liability independent of intent
 Holmes: to admit the excuse at all "would be to encourage ignorance where the
lawmaker has determined to make men know and obey…"
24
Defendant argues that he is entitled to raise defense because his belief was founded upon an
official statement of the law contained in the statute itself; prosecution argues that one cannot
claim the protection of mistake of law under relevant section simply by misconstruing the
meaning of a statute, but must establish the statute relied on actually permitted the conduct in
question and was only later found to be erroneous.
 MPC: excuse if later found to be erroneous
o Any broader view "fosters lawlessness"
Dissent: Here, someone commits an act that is not inherently immoral, but is a mere crime
because a statute says so. Purpose of the justice system is to punish blameworthiness… not clear
how that fits in here. Ignorantia legis neminem excusat is primarily a utilitarian doctrine, which
has been called into serious question on retributive grounds, especially because the acts to which
it may now apply are not necessarily "evil.” Beyond this, in the instant case the "mistaken belief"
that gave rise to the mistake seems to be clearly anticipated by the Penal Law. He had no way of
foreseeing that the law would be construed against him….
Cheek v. United States (SCOTUS 1991)
Facts: Cheek did not pay his tax returns, in violation of 26 USC 7201, which provides that any
person is guilty of a felony who "willfully attempts in any manner to evade or defeat any tax
imposed by this title or the payment thereof.” Cheek sincerely believed that under the tax laws he
owed no taxes, and that if he did, these laws were unconstitutional and would be overturned.
LQ: Does misunderstanding the law as a defense require objective reasonableness to negate the
statutory willfulness requirement?
Holding: No. Not error for court to instruct jury not to consider Cheek’s claims that tax laws
were unconstitutional, but was error for court to instruct jury that petitioner’s asserted beliefs that
wages are not income and that he was not a taxpayer within meaning of Code should not be
considered by jury in determining willfulness.
Reasoning: Congress softened impact of common-law presumption for certain federal tax
criminal offenses because of proliferation of statutes and regulations. Standard for statutory
willfulness requirement is “voluntary, intentional violation of a known legal duty.” If
government proves actual knowledge of pertinent legal duty, prosecution, without more, has
satisfied knowledge component of wilfullness requirement. Good-faith misunderstanding and
belief, whether claimed belief/misunderstanding is objectively reasonable, does not constitute
knowledge. If Cheek asserted he truly believed IRS Code did not purport to treat wages as
income, and jury believed him, Government would not have carried its burden to prove
willfulness, however unreasonable a court might deem such a belief. Claiming that law is
unconstitutional, however, reveal full knowledge of provisions at issue and a studied conclusion,
however wrong.
Do not believe Congress contemplated such a taxpayer could ignore duties imposed on
him by Internal Revenue Code and refuse to utilize courts to present his claims of invalidity.
RAKOFF: This is wrongly decided. There is "no real distinction between those two situations."
Court tried to justify by saying "first one relates to complexities of the tax law," while the other
relates to the simple question of Constitutional or unconstitutional
Lambert v. California (SCOTUS 1957)
Facts/PP: Woman is convicted under LA Municipal code that has arcane requirements
concerning registering with the city if you are a felon. Woman did not know about the
25
requirement and was subject to criminal penalties. No requirement for mens rea in statute,
notably a passive crime. Jury found her guilty, appealed
LQ: Is this woman guilty, when she was totally unaware of the requirement?
Holding: No, DPC is offended here.
Reasoning: Engrained in concept of DP is notice. Violation of this statute is different from other
registration laws – entirely passive, requiring no activity, only presence in city. On first
becoming aware of duty to register, defendant was given no opportunity to comply with the law
and avoid penalty, even though her default was entirely innocent. Court believes that actual
knowledge of duty to register or proof of probability of such knowledge and subsequent failure
to comply are necessary before a conviction under ordinance can stand.
Dissent: This is perfectly in line with precedent. If we applied this logic to all law, we would be
overturning half of our laws. Legitimate use of police power. Court is drawing a constitutional
line between state’s requirement of doing and not-doing.
26
Homicide
Homicide
Two kinds of questions about any category of crime
o Criminality: what distinguishes criminal from non-criminal behavior?
o Grading: what factors warrant greater or lesser punishment when behavior qualifies
as criminal?
Legislative grading is accomplished by dividing homicidal conduct into crimes of different
names (murder and manslaughter) and by dividing the same crime into different degrees (firstdegree and second-degree)
Concern of how to determine how much punishment can be imposed
o 1) Substantive problem – which facts determine whether punishment will be more
severe?
o 2) Institutional problem – which decision-making institution has authority to make
controlling assessment of these facts?
MPC breaks homicide into: murder, manslaughter, or negligent homicide (§210.2-4)
Murder vocabulary
Aforethought: superfluous when tacked onto “malice aforethought.” It means that you thought about it
Malice: A term of art. Typically four relevant states of mind for malice:
 Intention to kill
 Intention to inflict grievous bodily injury
 “Depraved heart” – wanton, reckless disregard that is so blameworthy as to warrant criminal
liability. “The deliberate perpetration of a knowingly dangerous act with unconcern and
indifference as to whether anyone is injured or not..
 Intention to commit a felony during the commission or attempted commission of which a death
results
Type
First-degree murder (MPC §
210.2)
Second-degree murder
The Murder Chart 
Criteria
 The murder must be
premeditated, but
jurisdictions vary on what
that entails
o Can be satisfied in a
moment (Carroll)
o You need a
plan/organize in
advance (Guthrie)


Notes
MPC: Criminal homicide is
murder when the actor
unjustifiably, inexcusably, and
in the absence of a mitigating
circumstance, kills another (1)
purposely or knowingly; or (2)
recklessly, under circumstances
manifesting extreme
indifference to the value of
human life. No degrees of
murder in MPC. Abandons
“malice aforethought”
The murder is intentional,
but it is not planned in
advance
The malice needed for intent
can be “recklessness,” or “a
27

Voluntary manslaughter (MPC §
210.3)




mind regardless of social
duty” (Malone)
Malice does not require illwill toward defendant in
particular (Fleming)
Captures mitigated murder;
no malice aforethought
For a provocation to be
adequate, it must be
“calculated to inflame the
passion of a reasonable
man.” (Girouard). Known
as “heat of passion”
Words can constitute
provocation if accompanied
by conduct indicating
present intention and ability
to cause defendant bodily
harm (Girouard)
Provocation must be in
presence of he who commits
homicide (Maher)
MPC takes a different approach
on Extreme Emotional Distress:
 Actions caused by “mental
infirmity not arising to level
of insanity”
 Acted under (1) influence of
EED [subjective] and (2) it
was reasonable to be
distressed [objective]
(Casassa)
The EED claim is different
from common law in that:





Involuntary manslaughter
(negligent homicide) (MPC §
210.4)


Captures accidents
stemming from recklessness
and negligence
Recklessness and
negligence are the required
mens rea (Hall)
Nothing in the language of
this defense says “words
are not enough”
Code directs us to look at
the individual
circumstances
Nothing says provocation
has to be immediate.
No requirement that
provocation comes from
the defendant.
Really is a subjective
standard
MPC: Guilty of manslaughter if
(1) recklessly kills another, or
(2) kills another under
circumstances that would
constitute murder, but which
homicide is committed as the
result of extreme emotional
disturbance for which there is a
reasonable explanation or
excuse
 In tension with our theory of
criminal liability, that
demands an evil mind
 Individualization can
happen, but it is not inherent
to standard of criminal
negligence (Williams)
28


Misdemeanor manslaughter



Felony murder

Welanksy: criminal reckless
omission by failing to
maintain fire exists
Williams: criminal
negligence by failing to get
medical attention for child
A misdemeanor that results
in death
Majority: Was the conduct
criminally negligent insofar
as it caused the death? Did it
cause the death? If yes to
both, misdemeanormanslaughter
Minority: Did the
misdemeanor cause the
death? If yes, misdemeanormanslaughter
Imposition of liability for
murder onto felonies where
death occurs, although there
was no intent to kill
 No mens rea, but conduct in
felony must be the but for
and proximate cause of
death (Regina – deaths more
be foreseeable; Stamp –
deaths need not be
foreseeable)
LIMITATIONS
 Nature of the felony must be
inherently dangerous
(majority – consider if the
felony is dangerous as
committed Hines; minority
– consider if felony is
dangerous in abstract
Phillips)
 Felony-murder must be
done in furtherance of the
felony, which leads to
difficult questions (in Gillis,
death can take place out-ofsequence of criminal
conduct; in Canola, death of
co-felon in shoot-out was
not in furtherance…)
 Merger doctrine: Only
applies if the underlying

You get charged with (1) the
felony and (2) the felonymurder
29
felony is independent of the
homicide. If it is not
independent, the felony
“merges” with the homicide.
Common approach: if the
death is the result of an
assaultive-type felony, it
merged with the homicide
Legislative Grading of Intended Killings: Premeditation-Deliberation Formula
Within crime of murder, we see grading based on circumstances. Of them, what renders an act
“premeditated” is a point of variance.
 Compare: Commonwealth v. Carroll (Pa. 1963) with State v. Guthrie (W. Va. 1995)
o Carroll demonstrates how you can satisfy premeditation in a moment, and how
courts aren’t under any obligation to change that calculus based on character
o Guthrie gives us a counter-example, where a court reads the term to mean what
we commonly expect of premeditation: plan/intent formed in advance
 29 states, DC, and federal government use criterion of “premeditation” to identify most
serious murders
o A majority of those using premeditation test (roughly 16 jurisdictions) hold that it
can be satisfied either an instant before or simultaneously with act of homicide
o Jurisdictions that interpret premeditation to require actual reflection have to
consider what kind of evidence is sufficient to support this finding
Commonwealth v. Carroll (Supreme Court of PA 1963)
Facts: Wife suffered a fractured skull, contributed to a schizoid personality type. She hurt her
children, was argumentative. At the request of his wife, Carroll put a loaded gun on the window
sill at the head of their bed for safety. He got home, violent argument. They went to bed, she was
mouthing off to him, he thought of her hurting the kids, "saw his hand move, next thing… he can
recollect is the shots.” Shot her twice in the head, wrapped wife's body in a blanket, spread and
sheets, tied them on with a piece of plastic clothesline and took her down to the cellar. Tried to
clean up, wrapped body in a blanket and took it near a trash dump. Fled with kids
PP: Defendant pleaded guilty to an indictment charged with murder of his wife, tried by judge
without jury. Court found him guilty of first-degree murder and sentenced to life imprisonment.
Appealed with questions: Does the evidence sustain a conviction no higher than murder in 2nd
degree? Does evidence of defendant's character, and testimony of experts, suggest that homicide
was not intentional?
Holding: The defendant’s arguments lack merit; we cannot let people off the hook because they
had “understandable” trouble controlling rage. No time is too short for premeditation, and ignore
the psychiatrist.
Reasoning: Whether intention to kill and killing were within a brief space or long space of time
is immaterial if the killing was in fact intentional, willful, deliberate, and premediated. Defendant
contends that lack of an after plan renders the act not premeditated, but these circumstances do
not negate premeditation. Doctor gave opinion that rage, desperation, and panic produced an
30
impulsive automatic reflex of homicide. 1) Neither a judge nor a jury has to believe any part of
testimony of defendant or any witness. 2) Opinion of psychiatrists was based to large extent upon
statements made to them by defendant, which need not be believed and which are in some
instances opposed by facts themselves. 3) A psychiatrist’s opinion of a defendant’s impulse of
lack of intent or state of mind is entitled to little weight in this class of case, especially when
defendant’s actions, testimony or confession, or facts themselves belie the opinions. Society
would be almost completely unprotected from criminals if law permitted a blind or irresistible
impulse to excuse murder.
State v Guthrie (Supreme Court of Appeals of WV 1995)
Facts: Guthrie stabbed Farley in the neck after Farley was provoking him in a joking manner.
Pulled a knife from his pocket and stabbed him in the neck. Defendant suffers from psychiatric
problems: chronic depression, borderline, body dysmorphia. Defendant testified he suffered a
panic attack immediately preceding the stabbing. Described the attack as "intense," felt a lot of
pressure and his heart beat rapidly
PP: Convicted of murder in the first degree by jury. Sentenced to life. Defendant appeals,
arguing that instructions were improper because the terms willful, deliberate, and premeditate
were conflated with an intent to kill
LQ: Were the jury instructions improper because the terms willful, deliberate, and premeditated
were equated with a mere intent to kill?
Holding: Yes. To allow the State to prove premeditation and deliberation by only showing that
intention came “into existence for the first time at the time of such killing” completely eliminates
distinction between two degrees of murder.
Reasoning: Jury instructions were that intent needed only to exist for a moment. Linchpin of
problems that flow from these instructions is failure to adequately inform jury of difference
between first and second degree murder. Of particular concern is lack of guidance as to what
constitute premeditation and the manner in which the instructions confuse premeditation with
intent to kill.
There must be some period between formation of intent to kill and actual killing, which
indicates an opportunity for some reflection on intention to kill after it is formed. Accused must
kill purposely after contemplating intent to kill. Schrader instruction’s notion of instantaneous
premeditation and momentary deliberation is not satisfactory for proof of first-degree murder.
Any other intentional killing, by its spontaneous and nonreflective nature, is second-degree
murder.
Mitigation to Manslaughter




Criminal law recognizes provocation and extreme emotional distress as two ways to
mitigate criminal liability for murder (EED recognized by MPC 210.3(1)(b))
These are not complete defenses, rather, they work by downgrading your culpability from
murder to manslaughter
They do not render your acts to be “involuntary,” or disprove that you satisfied the
elements of the crime
Instead, society has determined that we should be more understanding of actions where
mitigation applies, but not to the point of imposing no criminal liability
31
Provocation
 Provocation refers to circumstances where a person takes an action based on passion
rather than reason
 Common law position maintains that only a few specific circumstances can serve as
legally adequate provocation:
1) when accused witnesses his/her spouse in act of adultery
2) when accused is assaulted/faced with imminent assault on themself
3) when accused witnesses an assault on a family member/close relative
 Jurisdictions that follow common law approach rarely consider insulting words to be
sufficient
o Prevailing view that words cannot suffice has been softened to allow exceptions
when words provoke – not because they are simply insulting, but when they could
be sufficient if defendant had observed them directly, e.g. when words disclose
adultery
 Minority view follows Maher, with no pre-established categories and question of whether
provoking circumstances sufficient a question for a the jury
 Typical rationales for mitigating effect of provocation:
1) partial justification – focuses on wrongfulness of the act
2) partial excuse – focuses on culpability of actor
Girouard v. State (Court of Appeals of MD 1991)
Facts: Steven and Joyce were in a strained marriage and were fighting; Joyce kept saying nasty
things, Steven snapped, and stabbed Joyce 19 times. She died. He seemed pretty remorseful, slit
his own wrists, called the police etc.
PP: District court finds Steven guilty of murder in the second degree. Steven appeals, asking
court to mitigate to manslaughter, arguing that manslaughter is a catchall for homicides which
are criminal but that lack the malice essential for a conviction of murder. Argues that categories
of provocation adequate to mitigate should be broadened to include factual situations such as this
one. State: not appropriate to put words into this category
LQ: Should types of provocation sufficient to mitigate crime of murder to manslaughter be
limited to categories recognized, or decided by a factfinder on a case-by-case basis?
Holding: No. Words can constitute adequate provocation if they are accompanied by conduct
indicating a present intention and ability to cause defendant bodily harm.
Reasoning: Petitioner relied primarily on out of state cases to provide support for his argument
that provocation to mitigate murder should not be limited to traditional circumstances of physical
abuse, to provocation calculated to inflame the passion of a reasonable man. Social necessity
dictates holding – domestic arguments can escalate quickly and should not excuse murder.
Maher v. People (Supreme Court of MI 1862)
Facts: Maher charged with assault with intent to kill and murder Patrick Hunt. He shot him
through the left ear, after watching him go into the woods with his wife, and his friend telling
him that they had intercourse in the woods the day before.
PP: Charged with an assault with intent to kill and murder. Trial court rejected evidence of the
affair. Appealed on basis of evidence being improperly excluded
LQ: Should mitigating evidence have been admitted?
32
Holding: Yes, it is a question for the jury whether provocation was sufficient or cooling off
period was long enough.
Reasoning: Homicide must have been committed with some degree of coolness and deliberation
under circumstances in which ordinary men would not be liable to have reason clouded or
obscured by passion. But if killing is committed under influence of passion, produced by a
reasonable provocation, before a reasonable period of time elapsed for blood to cool, then we
mitigate. Have to see if the act is of "the natural tendency of which would be to produce such a
state of mind in ordinary men.” If there is any reasonable doubt as to provocation, it is safer to let
evidence go to jury with proper instructions. Question of cooling time is likewise a question for
the jury – don’t see an principle to make it a question of law.
Dissent: Passion engendered by suspicion or something someone has heard shouldn’t be a
defense, only when provocation was committed in the presence of the doer.
MPC Approach
MPC § 210.3(1)(b): a homicide which would otherwise be murder is committed under the
influence of extreme mental or emotional disturbance for which there is reasonable explanation
or excuse. The reasonableness of such explanation or excuse shall be determined from the
viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.
Questions: what do you take into account for reasonableness?
 Culture
 Battered women
 Mental disorder
 Gender
Extreme Emotional Distress
 Extreme Emotional Distress (EED) involves a claim that your actions were caused by a
“mental infirmity not arising to the level of insanity”
 Core application:
o Defendant must have acted under the influence of extreme emotional disturbance
AND
o It must be reasonable for the person to be distressed
 Must satisfy both elements, not enough to merely show emotional disturbance
o See e.g. Casassa (N.Y. 1980)
 Variance exists on role of domestic violence, culture, and use of individualized
reasonableness
People v. Casassa
Facts: Victoria Lo Consolo was brutally murdered by defendant Victor Casassa. Consolo
rejected defendant's advances, said she was not falling in love with him, he started stalking her
and behaving erratically. Ended up stabbing her and drowning her dead body just in case upon
her final rejection. Victor charged with second-degree murder.
LQ: The sole issue presented to the trial court was whether the defendant at the time of the
killing had acted under the influence of extreme emotional disturbance. On appeal, defendant's
33
claim concerns a question arising out of the distinction between "heat of passion" and "extreme
emotional disturbance": whether, assuming the defense is applicable, the standard by which the
reasonableness of defendant's emotional reaction is to be tested must be entirely subjected
Holding: Uphold trial court finding: the excuse offered was so peculiar to him that it was
unworthy of mitigation.
Reasoning: EED is an expansion of heat of passion. Thrust of defendant’s claim is that standard
of reasonableness of defendant’s emotional reaction to be tested entirely subjectively, which is
misplaced. Purpose of EED is to allow mitigation where level of mental infirmity doesn’t rise to
level of insanity, but not all infirmities constitute “EED.” There are two components to the test –
1) must have acted under influence of EED and 2) must have been a “reasonable explanation or
excuse” for such extreme EED, “the reasonableness of which is to be determined from viewpoint
of a person in the defendant’s situation under the circumstances as the defendant believed them
to be.” 1) is subjective, 2) is rather objective.
Legislative Grading of Unintended Killings
Manslaughter
 Manslaughter refers to unintended killings, though it can also capture situations where an
intent to kill has been mitigated (as noted before)
 Uses recklessness and negligence as mental standards, can be imposed for act or omission
o See Welansky: Criminally reckless omission by failing to maintain proper fire
exits
o See Williams: Criminal negligence for failing to get medical attention for child
 Individualization can happen, but not inherent to standard of criminal negligence (i.e.
what it was reasonable for this person to know versus what reasonable person knows)
 Criminal negligence has a tension with our theory of criminal liability, that we generally
only punish in the presence of an evil mind
o Further considerations of justifications under deterrence and just punishment
theories
 Manslaughter is also divided at times into voluntary and involuntary. This does not align
with our concepts of voluntary and involuntary acts
o Voluntary manslaughter captures mitigated murder
o Involuntary manslaughter captures accidents (reckless and negligence)
Commonwealth v. Welanksy (Mass. Supreme Court 1944)
Facts: Night club owner maintained a night club with unmarked or obscured exits. A fire started,
lots of people died, some escaped. Defendant was charged with numerous counts of involuntary
manslaughter based on overcrowding, installation of flammable decorations, absence of fire
doors, and failure to maintain proper means of egress. Commonwealth argues its case on basis of
involuntary manslaughter through wanton or reckless conduct
LQ: Is Did Commonwealth need to prove element of intentionality in charging wanton or
reckless conduct?
Holding: No. Reasonable person standard, the essence of which is intentional conduct, by way
of either commission or omission where there is a duty to act, which conduct involves a high
degree of likelihood that substantial harm will result to another.
Reasoning: Usually wanton or reckless conduct consists of an affirmative act, but it also may
34
consist of intentional failure to take such care in disregard to probably harmful consequences to
them or of their right to care.
People v. Hall (Court of CO 2000)
Facts: Snowboarder flying down the pike, being generally reckless, that sort of thing. Hits a guy,
kills him. Lower court says the conduct wasn't dangerous enough to uphold a conviction for
reckless manslaughter, finding it must have been "more likely than not" that the death would
result
LQ: Was the lower court’s instruction for finding manslaughter appropriate?
Holding: No. The standard is whether the actor had “consciously disregarded a substantial and
unjustifiable risk that death could result.”
Reasoning: A reasonable juror could have concluded that Hall’s excessive speed, lack of
control, and improper technique increased likelihood of collision and extent of injuries that might
result included possibility of death. A reasonable juror could have also found this substantial risk
of death was unjustified, as the only justification available for the risk was Hall’s enjoyment.
Standard of care imposed by statute in CO was duty to avoid collisions with people or objects
downhill. Violation of that duty in an extreme fashion, such as here, may be evidence of conduct
that constitutes a “gross deviation” from standard of care imposed by statute for civil negligence.
A reasonable juror could have entertained belief that Hall consciously disregarded the risk, as he
was a trained ski racer and employee of a ski area with a great deal of skiing experience.
Objectivity and Individualization in Criminal Negligence
Two major questions of offense of negligent homicide:
1) Justification: are MPC and most American jurisdictions right to punish inadvertent
(negligent) killing?
2) Definition: If it can be justified, how should jury determine whether a defendant was
negligent? Reasonable person in circumstances – but what circumstances? Single
invariant standard for all?
MPC leaves to courts the problem of determining degree of individualization, but the courts
remain ambivalent or in conflict
Legislature: If the failure to exercise due care leads to death, then you will go to jail for murder-negligent homicide
Legislature: pre-meditated, intentional, and reckless murder all involve mental states
Question: is negligent homicide an appropriate application of the criminal law?
State v. Williams (Wash. Ct. App. 1971)
Facts: Defendants lacked complete education and thought their baby only had a toothache. He
was actually gravely ill and died. Defendants were charged with involuntary manslaughter for
negligently failing to seek medical attention.
PP: Trial court concluded that defendants were each guilty. Appellate court held that both
defendants were under a legal duty to obtain medical assistance.
LQ: Was there sufficient negligence here to sustain charge of involuntary manslaughter?
35
Holding: Yes. De novo review shows that parents had critical period of about 4-5 days where a
reasonable person would have noticed baby’s symptoms and obtained medical care.
Reasoning: On the question of the quality or seriousness of breach of the duty, at common law,
in the case of involuntary manslaughter, the breach had to amount to more than mere ordinary or
simple negligence—gross negligence was essential… under WA statutes, the crime is deemed
committed even though the death is the proximate result of only simple or ordinary negligence. If
the conduct of defendant, regardless of intentions, fails to measure up to conduct required of a
reasonable man, he is guilty of ordinary negligence because of his failure to use "ordinary
caution"... if such negligence proximately causes the death of the victim, the defendant is
guilty of statutory manslaughter. Defendants did not understand the significance or seriousness
of the illness here, but they were able to take the kid to the doctor if they wanted; excuse that
they were afraid they would have the kid taken is not enough.
Notes: Manslaughter statues in Williams repealed in 1975
Murder from Manslaughter
Many states now use formulas inspired by the MPC, where unintended killing is murder when
committed recklessly and “under circumstances manifesting extreme indifference to the value of
human life”
Murder by omission has been upheld where death results, when the omission is a duty in law
Commonwealth v. Malone (Supreme Court of PA 1946)
Facts: Defendant (child) killed decedent after playing “Russian Poker” with a gun. He was
charged with second degree murder. Defendant was found guilty on the charge, and appealed,
contending that the facts only supported involuntary manslaughter, as he had not intended the
gun to go off.
LQ: Do the facts justify a conviction for homicide, or manslaughter?
Holding: This is properly considered murder in the second degree. Killing by defendant resulted
from an intentional act, in reckless and wanton disregard of the consequences which were at least
60% certain from his attempted discharge of a gun known to contain a bullet and aimed at a vital
part of the body.
Reasoning: At common law, grand criterion distinguishing murder from other killing was
malice, i.e. any evil design in general. When an individual commits an act of gross recklessness
for which he must reasonably anticipate that death to another is likely to result, he exhibits the
same kind of malice. The fact that there was no motive does not exculpate the accused
United States v. Fleming (4th Circuit 1984)
Facts: Fleming was traveling between 70 and 100 miles per hour down the George Washington
Memorial Parkway, within federal jurisdiction, for at least 6 miles. He struck a car driven by
Mrs. Haley traveling in the opposite direction. She was severely injured and died at the scene.
Defendant was pulled from the car and had a BAC of .315. Defendant indicted and convicted on
a charge of second degree murder. Defendant appealed, contending that facts are inadequate to
establish malice aforethought, and he should’ve been convicted of manslaughter at most.
LQ: Does “malice” require ill will toward defendant?
Holding: No. To support a conviction for murder, government need only have proved that
defendant intended to operate his car in the manner in which he did with a heart that was without
36
regard for the life and safety of others (reckless disregard).
Reasoning: Malice aforethought, as provided in 18 USC §1111(a) is the distinguishing
characteristic which, when present, makes a homicide murder rather than manslaughter. Proof of
existence of malice may be established by evidence of conduct which is “reckless and wanton
and a gross deviation from a reasonable standard of care”, of such a nature that a jury is
warranted in inferring defendant was aware of serious risk of death or serious bodily harm.
Difference between malice, which will support conviction for murder, and gross negligence,
which will permit of conviction only for manslaughter, is one of degree rather than kind. In this
case, deviation from established standards of regard for life and safety of others that is markedly
different in degree from that found in most vehicular homicides.
Felony-Murder Rule





Refers to a doctrine/type of homicide that imposes liability for murder onto felonies
where a death occurs in the course of the crime, even though no intent to kill
No mens rea requirement, but conduct in the course of the felony must be the but for
cause and proximate cause of the death
o Differing concepts of proximate cause, and in turn what falls within the scope of
felony murder
 Regina v. Serne (UK 1887): Felony murder is limited to foreseeable deaths
 People v. Stamp (Cal. 1969): Felony murder is not limited to those deaths
that are foreseeable, what matters is if death is result of the felony conduct
MPC approach (§ 210.2(1)(b)): against the felony-murder rule, except in circumstances
manifesting extreme indifference to the value of human life
o Recklessness and indifference are presumed if the actor is engaged or is an
accomplice in the commission of, or an attempt to commit, or flight after
committing or attempting to commit robbery, rape or deviate sexual intercourse
by force or threat of force, arson, burglary, kidnapping or felonious escape.
You still have two crimes at issue though. Thus, you are charged with
o A felony
o Felony murder
Statutes over years have qualified severity in a variety of ways:
1) limiting list of eligible felonies
2) grading of felony-murder, e.g. murder in first degree for dangerous felonies
and second degree for nondesignated felonies
3) requiring homicidal mens rea, i.e. recklessness or extreme indifference to value
of human life
4) permitting affirmative defenses
 e.g. when co-felon caused death and defendant themselves not armed and
had no reason to believe co-felon was likely to kill
Problems in Felony-Murder
 Felony-murder concept conflicts with our traditional concept of criminal law in a similar
way to issues of strict liability
o Punishment imposed in the absence of a guilty mind, at least for the death
37

o Attempts to justify it are made on notion that you have the guilty mind for the
felony and so assume the risk of what comes with your conduct
Felony-murder can conflict with theories of punishment at times
o Consider, what’s the purpose of having this type of crime? Are you deterring
people from killing while committing crimes or from just committing the
underlying crime?
o How does just punishment handle imposing, at times, a greater sentence on a
person who goes to steal a TV and accidentally kills someone than on a person
who just intentionally kills someone?
Limiting Felony-Murder
 Nature of felony
o A jurisdiction may limit what felonies can support a felony-murder charge. May
be explicitly done by legislature, or may be left to courts…
o …Who have at times read in requirement that underlying felony be “inherently
dangerous.” Two approaches for courts determining if felony is inherently danger
 As committed (majority approach): Court considers if the felony was
committed in a dangerous way in this case?
 See e.g. Hines v. State (Ga. 2003)
 In the abstract (minority approach)
 See e.g. People v. Phillips (Cal. 1966)
 Merger
o Great majority of jurisdictions require the need for some “merger” doctrine in
order to ensure that felony-murder does not obliterate grading distinctions the
legislature seems to have desired
o Two tests commonly used to determine merger are:
1) whether the felony is “included in fact” in the homicide and
2) whether the felony is “independent” of the homicide
 Killing in furtherance
o In theory, felony-murder only applies to deaths that “further” the felony, however
what “furthers” the crime can be interpreted broadly
o Three potential areas where question is more difficult
 Where the felony isn’t furthered by the death
 Example: Trying to commit real estate fraud (deceive people
about status of a property, which you do in part by putting fancy
carpet), someone falls through a hole in the floor that the carpet
covered, dies.
 Where the death takes place out of sequence or after the actual criminal
conduct
 Time before and after criminal conduct can still be part of the
crime. See e.g. People v. Gillis (Mich. 2006)
 Where victims and other individuals cause a death
 E.g. State v. Canola (N.J. 1977): Death of co-felon did was not in
furtherance of crime after he was shot by robbery victim. Note
though, this case was not talking about the death of the victim,
which presumably was in furtherance.
38
Misdemeanor Manslaughter
 Similar to felony-murder, in many states a misdemeanor resulting in death can provide a
basis for an involuntary manslaughter conviction without proof of recklessness or negligence
 Reflected in common-law definition of involuntary manslaughter: killing in the commission
of an unlawful act, not amounting to felony; or in the commission of a lawful act which
might produce death, in an unlawful manner, or without due caution and circumspection
 May provide more of a “buffer” than with felony-murder
o Hence the majority approach: Was the conduct criminally negligent insofar as it
caused the death? Did it cause the death? If yes to both, then misdemeanormanslaughter. (Require behavior amounting to criminal negligence)
o But minority approach: Did the misdemeanor cause the death? If yes, then
misdemeanor-manslaughter. (Base liability on unlawful act itself)
 Harshest effects of minority approach moderated in a number of states with
limitations such as proximate cause, regulatory offenses, dangerousness
Regina v. Serne (Eng. 1887)
Facts: 2 men set fire to Serne’s house hoping to commit insurance fraud. Two of Serne’s sons
were killed in the process.
LQ: Does “any act done with intent to commit a felony” mean all felonies for felony-murder?
Holding: No – shouldn’t be. Jury instruction given below.
Reasoning: Should narrow definition of “any act done with intent to commit a felony” to “any
act known to be dangerous to life and likely in itself to cause death, done for the purpose of
committing a felony which causes death” should be murder. Don’t think mens rea should be
intent to kill. Equated setting the house on fire with stabbing the children to death.
Policy: "It will be admitted that, when an act in itself is innocent, punishing for negative
consequences is absurd… punishing for one offense because of misfortune in another offense is
sure to confound all the boundaries of crime"
People v. Stamp (1969)
Facts: Man died of a heart attack due to shock of a gunpoint robbery.
LQ: Is this death still punishable under felony murder, given it was not foreseeable?
Holding: Yes. “Felony murder doctrine not limited to those deaths are foreseeable. Rather a
felon is held strictly liable for all killings committed by him or his accomplices in the course of a
felony.”
Reasoning: “So long as victim’s predisposing physical condition is not only substantial factor
bringing about his death, condition and robber’s ignorance of it in no way destroys
responsibility.” “Takes his victim as he finds him”
Notes: Stamp case illustrates view generally accepted in American courts -- that felony-murder
rule imposes strict liability for killings that result from commission of a felony, i.e. no mens rea
proof required (not knowledge, recklessness, or negligence either)
People v. Phillips (Supreme Court of CA 1966)
Facts: 8 year old girl with fast-growing cancer of the eye – parents were advised to consent to
immediate removal of the eye as the only way of removing the eye. Chiropractor offered services
that would allegedly save her. Judge instructed jury that it could convict of second-degree
39
murder if it found defendant committed felony of grand theft (theft by deception) and that child
died as a proximate result. Upon conviction, defendant appealed and Supreme Court reversed.
LQ: Does felony-murder apply to felonies not inherently dangerous ("grand theft medical
fraud")?
Holding: No. To fragmentize “course of conduct” of defendant so that felony-murder rule
applies if any segment of conduct may be considered dangerous would widen rule beyond
application.
Reasoning: It would then apply not only to commission of specific felonies, which are
themselves dangerous to life, but to the perpetration of any felony during which defendant may
have acted in such a manner as to endanger my life. Felony murder instruction should not have
been given
Notes: “Abstract” approach to finding inherent danger sets a high bar, e.g. CA courts requiring
that for the purposes of second degree felony-murder doctrine, an “inherently dangerous felony”
is an offense carrying “a high probability” that death will result
Hines v. State (Supreme Court of GA 2003)
Facts: Robert Hines mistook his friend Steven Wood for a turkey and shot him dead. Jury
convicted Hines of felony murder based on underlying crime of possession of a firearm by a
convicted felon, but acquitted him of felony-murder count based on underlying felony of misuse
of a firearm while hunting. Hines contends that convicted felon’s possession of a firearm while
turkey hunting cannot be one of the inherently dangerous felonies required to support a
conviction of felony murder.
LQ: Was Hines’s violation of the prohibition against convicted felons possessing firearms was
an inherently dangerous felony that could support a felony-murder conviction?
Holding: Yes. Under these circumstances.
Reasoning: A felony is “inherently dangerous” when it is “dangerous per se” or “by its
circumstances creates a foreseeable risk of death.” “Depending on the facts, possession of a
firearm by a convicted felon can be inherently dangerous felony.” Defendant took an unsafe shot
at dusk, had been drinking, and not positively identified target as a turkey.
DISSENT: May establish that Hines was negligent, but not that his acts created a high
probability that a death would result. Nor did he have a bad state of mind. The result is
unnecessary, we have other mechanisms .
THE MERGER DOCTRINE
People v. Burton (Supreme Court of CA 1971)
Facts: Defendant killed a person in the course of committing an armed robbery. Jury found
defendant guilty of first-degree felony murder, and defendant appealed, contending it was error
in the circumstances of this case, to instruct the jury on first-degree felony murder, because the
underlying felony was armed robbery.
LQ: Can armed robbery include felony murder, or is it excluded by virtue of the nature of the
crime?
Holding: It can include felony murder
Reasoning: Calls it "bootstrapping.” Defendant says robbery is assault coupled with larceny.
This would eliminate the application of the felony murder rule to all unlawful killings which
were committed by means of a deadly weapon, since in each case the homicide would include in
40
fact assault with a deadly weapon, even if the homicide resulted from the commission of one of
the six felonies… It is clear here there is an independent felonious purpose, and it does not make
sense to merge them
People v. Chun
Facts: Member of street gang shot at the car of a member of a rival street gang. Only intended to
scare them, did not shoot the gun at anyone. Did shoot someone, he was killed, the others
injured. Charged with second degree felony murder
LQ: Is this an appropriate crime to pin felony murder on?
Holding: No. Overrule People v. Robertson to require felonies that are assaultive in nature be
merged with homicide charge.
Reasoning: We want to avoid putting a person who intends to frighten the victim in a worse
legal position that the person who actually intended to shoot the victim. When the underlying
felony is assaultive, such a as a violation like discharging a firearm in a negligent manner, we
now conclude that the felony merges with the homicide and cannot be the basis of a felonymurder instruction. An assaultive felony is one that involves a threat of immediate violent injury.
Shooting at a vehicle is assaultive in nature.
KILLING NOT IN FURTHERANCE OF THE FELONY
 Felony murder rule applies only when the act of killing is done in furtherance of the
felony
 Here, we have three situations where this is less clear
o Lethal act occurs after commission of felony
o Lethal act unrelated to felony
o Lethal act committed by someone resisting the felony
State v. Canola
Facts: Owner of a jewelry store, in an attempt to resist an armed robbery, engaged in a physical
skirmish with one of the four robbers. A second conspirator began shooting, store owner returned
gun fire. Owner and one of the felons were fatally shot, the latter by the firearm of the store
owner
LQ: Can the felon be charged with felony murder?
Holding: Nope
Reasoning: Agency theory and proximate cause theory can be in play here. Conduct must reflect
"express malice" to justify a murder conviction. Seems regressive to extend the application of
felony murder to lethal acts of third persons not in the furtherance of the felonious scheme.
Strike conviction
Concurring in result only: What we are saying here is that even though some innocent person
be killed during commission of an armed robbery, felon would bear no criminal responsibility
for that killing as long as it was not at the hand of the felon… this is beyond legislative intent
What's the problem in this case that is not in the other cases?
 Agency problem. Not the act of the criminal that directly goes to the murder
 Person who is charged with murder didn't kill the person who died
 Issue of proximate cause/foreseeability
o Used to be called "legal cause" because it is a policy decision: where do you cut off
the causal chain
41
Death Penalty
Gregg v. Georgia
Facts: Gregg convicted by a jury on two counts of armed robbery and two counts of murder.
Appeals court dismisses the punishment of death for robbery, keeps them instated for the counts
of murder
LQ: Is the death penalty as here applied unconstitutional?
Holding: No, it comports with the Furman decision
Argument for Defendant: Statutory requirements do not rid the defendant of discrimination; the
system allows for too much discretion
Reasoning: Is punishment of death for the crime of murder, in all circumstances, cruel and
unusual, and wrong under the 8th and 14th? Public perceptions of standards of decency with
respect to respect for sanctions are not conclusive, but people are clearly still OK with it. Still,
punishment cannot be excessive: This means (1) Unnecessary and wanton infliction of pain, or
(2) Grossly out of proportion to severity of crime.
Death penalty is presumptively valid, because it is a democratically elected legislature against
the Constitution. Precedent also supports it. We see it is valuable for retributive and utilitarian
purposes
 Need to stop self help
 Need to deter
 Allow expression of outrage
Is it disproportionate here? No, because he killed people.
There is a carefully crafted statute here that insures the statute will not be capriciously applied;
the state has a fair procedure. Does not matter that there are opportunities with mercy (clemency,
appeals, etc.), that discretion is OK
Dissent: This does not serve the purposes of deterrence or retribution. An informed citizenry
would not be OK with the death penalty. Nothing suggests it deters, or that lesser punishments
would deter equally as well. The retributive dimension of this is actually presented as a utilitarian
argument and is morally bankrupt
Atkins v. VA
Facts: Mentally retarded man convicted of abduction, armed robbery, capital murder, and
sentenced to death. Did so with a man who is not mentally retarded. Implicit that he was coerced
or unable to make this choice on his own…
LQ: Can a mentally retarded man be sentenced to death?
Holding: No
Reasoning: The standard against excessive sanctions, as defined by the Eight Amendment, is an
evolving standard. Briefly surveys changes in state and federal law, decides that Americans think
this is wrong, and killing a mentally retarded person would be unusual. Death penalty against
retarded person inconsistent with the normal justifications: no deterrence, less moral capacity, so
retribution seems wrong. Procedural protections less robust for someone incapable of
communicating effectively with counsel, bearing witness, portraying themselves with poor
demeanor…
42
McCleskey v. Kemp
Facts: A number of people shot and killed. McCleskey only person to be found guilty, death
penalty. Points to Baldus study, which suggests that the only explanation for the higher execution
rates of black man is racism. Regression analysis: factor out everything that could go into a
particular result other than the fact that X. Court takes the study as true, decides that in order for
McCleskey to succeed, there were racial motivations in his case
Quinones
Facts
 Two gentlemen were convicted of narcotic violations, murder, and were sentenced to death
 Why did the district court find it unconstitutional?
o It is a fundamental right to bring a claim of one's own innocence. So it's a violation of
due process to take that away from someone by executing someone
o The ultimate premise is that you always have a right to assert your innocence, and if
you have proof of actual innocence, you have a Constitutional right to show it
Second Circuit
 That is not a fundamental right that carries on forever--how long can you continue bringing
claims of your own innocence
 Rakoff was wrong in his premise: SCOTUS had an argument made to it in the past that it
was unconstitutional for an innocent person to be convicted, and rejected that argument
Defense did not raise the argument, Rakoff brought the argument up, and then the defense went
for it
 Rakoff: This is OK, it may have been written by a clerk??
o You're required to raise jurisdictional issues
o This was a very fundamental issue, and he was concerned about whether he should
raise it or not, which is why he allowed the government a second bite at the apple to
convince him it was a mistake
o Larry Tribe says this is the first constitutionally convincing argument for abolition of
the death penalty lol
o Thinks Second Circuit is wrong in their reading of Hurerra
43
Conspiracy
Conspiracy
 Conspiracy is a partnership in criminal purposes: defined as the crime of agreeing with
another to commit a criminal offense
 Conspiracy is generally punishable separately and in addition to completed offense - a
recognition that the law of conspiracy is designed to not only punish preparatory activity, but
also to address “special danger” posed by group criminal activity
Two meanings of conspiracy
An inchoate crime that aims at preparatory conduct before it matures into the actual commission
of the substantive offense
 "The crime of agreeing with another to commit a criminal offense," punishable whether or
not the conduct occurs
 Actus Reus: making an agreement as inferred from acts done separately or together (Perry)
 Mens Rea: Requires knowledge of the crime and intent to further the crime as inferred
through knowledge of activity, lack of innocent explanation, etc.
Approaches
 Traditional approach to grading is to treat the inchoate crime as a generic offense, and to
prescribe a punishment range that is unrelated to the sentence associate with the crime
conspired…
 Majority approach is to fix punishment for conspiracy at some term tied to but less than
the sentence provided for the object crime
 1/3rd of states follow the MPC and make the punishment for conspiracy the same as
authorized for the object crime, except in the most serious of cases
Accessory liability; a means by which individuals who agree to commit a crime are held liable
for actions of others in the group. Controversial!
 Pinkerton Liability: Each co-conspirator is liable for acts of co-conspirator taken in
furtherance of the criminal purpose (not universal standard, but common)
 Bridges: Act need not be in furtherance of the conspiracy, just foreseeable
 Conspiracy is seen as ongoing until abandoned or goal is achieved
 Getting out:
 Group Abandonment: When no on engages in any action to further the
conspiracy. No defined amount of time, also must take into account if group must
wait to commit the crime.
 Individual Abandonment: You must take an affirmative action that is
inconsistent with the purpose of the conspiracy and/or informing coconspirators
of your exit.
 Burden on defendant to show abandonment
 Note, this only affects future actions and statements by the group, you are
still liable for things up to that point
 Renouncing and Crime of Conspiracy: Some jurisdictions may make
renunciation a complete defense against crime of conspiracy but not all
44
Limitations on Conspiracy
 Concealment: Where a defendant acts to conceal the principal offense and avoid
detection, those acts are not imputed to co-conspirators without evidence of agreement to
do so. See Krulewitch v. U.S. (1949) and Grunewald v. U.S.
 Ineligibility to Commit the Crime: See Gebardi v. U.S. (1932), represents idea that you
can’t be in a conspiracy to commit a crime you’re exempt from. In that case the woman
couldn’t be charged with trafficking herself, and because conspiracy requires more than
one person, man couldn’t be properly charged.
 This also represents how you need more than one party to make a conspiracy.
 Fake Colleagues: Jurisdictions vary on whether undercover informants can serve as coconspirator. Some still allow them to count. See Garcia v. State.
 Wheel and Spoke: Addresses requirement that defendants be part of the same
agreement, not just that they engage in the same or similar criminal conduct.
 Interdependence assessment is used to ask if parties are part of the same
agreement. This is done because the assessment of any agreement may be on
implied grounds already, so we just keep looking at conduct to assess
relationships
 Whether you charge a wheel or a spoke conspiracy will affect what you are
required to prove. Thus, if you cannot show interdependence between the
different actors, you may want to charge spoke.
Other consequences
 Procedural consequences
o Conspiracy charge lifts the limitation of having an "impartial jury of the state and
district wherein the crime shall have been committed," because the crime is
considered so vagrant as to have been committed in any district where any
conspirator did one of the acts to accomplish the object
 Spillover effects
o In large conspiracy trials, defendants' primary protection against the spillover effect
of evidence unrelated to their guilt is the limiting instruction given by the trial judge,
which take the place of jury instructions not to consider certain pieces of evidence
against specific defendants…
 Sentencing consequences
o Sentences are tied in part to amounts of drugs or money involved in a criminal
offense
o Individuals can be charged and sentenced on basis of larger quantities of drugs than
they ever personally sold because they were involved in the conspiracy
Importance of conspiracy
 Hearsay is the most important rule in Anglo-American evidence: cannot receive into
evidence for its truth an out of court statement from anyone, because they're not there to be
cross examined
 You have a problem in conspiracy where people aren't going to want to rat people out
 Conspiracy is proven to continue until and unless it has been shown to have ended (rare
instance of burden shifting on defendant)
 To show that you have withdrawn from the conspiracy, the burden is on you….
45

Out of court statements by alleged co-conspirators are admissible attributable to the
defendant because they are all acting in accord with each other…
Actus Reus of Conspiracy



The actus reus is typically defined as the "agreement" to commit a crime
But agreements are rarely reduced to writing, and oral agreements make terms and
conditions unclear
How can necessary agreement be described?
o State v. Millan: "The existence of a formal agreement between the conspirators need
not be proved because it is only in rare instances that conspiracy may be established
by proof of an express agreement to unit to accomplish an unlawful purpose…. The
requisite agreement or confederation may be inferred from proof of the separate acts
of the individuals accused as coconspirators and from the circumstances surrounding
the acts"
Parallel behavior that is not criminal?
 Cravath decides what associates should get, a couple firms decide to give a bit more, but
most fall in line with Cravath
 This is called parallel pricing
 No evidence that people in law firms got together and agreed to do this
 You might say it's a tacit agreement, but there's no lying about it
Conspiracy v. accomplice liability
 Upheld convictions based on an accomplice theory of liability. What accounts for the
difference?
 Actus reus for accomplice liability is satisfied when the accomplice facilitates the crime,
whether or not the accomplice and the principal have a prior agreement
Overt Act Requirement
 Under common law and statute, conduct can be punishable as a conspiracy at points
much further back in the stages of preparation that the point where liability begins to
attach for attempt…
 SCOTUS has held that where federal statute’s text is silent, no overt-act requirement
should be read into statute in light of settled principle of statutory construction that,
absent contrary indications, Congress intends to adopt common-law definition of
statutory terms
 In some jurisdictions, agreement alone is sufficient
 In other jurisdictions, you need an overt act:
o You need more than an intention; you need an agreement. It cannot just be
something in your head (Mulcahy v. The Queen)
o Once money laundering (and other serious crimes) found not to need an overt act
because the statute was silent on the matter (Whitfield v US)
o Typically, you want an overt act to show that "the conspiracy is at work," but is it
possible that the agreement itself is the overt act…? Some states differ on
46
Perry v. State
Facts: Christopher Perry charged with conspiracy to allow Robert Young to sexually violate his
daughter, E.P. Perry argues that the evidence did not establish an agreement on appeal
LQ: Was there enough evidence to establish an inference?
Court: Not enough evidence, No direct proof was introduced, and circumstantial evidence in
record is sufficient to establish existence of an agreement or intent to conspire.Dissent: There is
enough evidence! Mom and dad knew Young was a convicted sex offender. They were
dependent on him financially. They allowed him to sleep with their daughter in the same bed.
They locked the daughter in the room with him. It was a very small house
Mens Rea of Conspiracy
Purpose or knowledge in felony case
 MPC requires purpose for both conspiracy and accomplice liability
 Most states likewise require purpose, even when the object crime is a serious felony
Corrupt motive
 Leading common law precedent in People v. Powell
o To be criminal, a conspiracy must be animated by a corrupt motive or an intention
to engage in conduct known to be wrong
o Question: doesn't this approach make mistake of law a defense in a conspiracy
prosecution?
o Powell doctrine rejected in England
 Attendant circumstances
o How should the law treat a situation where the defendant claims a mistake of fact
as to some attendant circumstance—should mistake of fact be a defense to a
conspiracy charge even if it would not be a defense in a prosecution for the
substantive offense?
 Facts that increase the gravity of the offense
 Facts essential to criminality
People v. Lauria
Facts: Lauria has a telephone answering service. Lauria seems to know that prostitutes are using
the service in order to field calls for their illegal services. Lauria is charged with conspiracy
LQ: At what point does knowledge of an illicit activity, without any clear intention to further
that activity but without stopping that activity, ripen into the requisite mens rea to further the
conspiracy/crime?
Analysis: Court offers the following rule: intent of a supplier who knows of the criminal use to
which his supplies are put to participate in the activity connected with the use of his supplies
may be established by
1. Direct evidence that he intends to participate
2. Inference that he intends to participate based on
a. Special interest in activity
b. Aggravated nature of crime itself
Additionally, intent may be inferred from knowledge when
 No legitimate use for the goods or services exist
47


The purveyor of legal goods for illegal use has a stake in the venture
Volume of business with the buyer is grossly disproportionate to any legitimate demand
Conspiracy as a Form of Accessorial Liability
Pinkerton v. US
Facts: Walter and Daniel Pinkerton both lived on a farm together, and were indicted for
violations of the IRS. Daniel Pinkerton appealed, claiming that because only his brother had
committed the substantive crimes he was incorrectly convicted
LQ: Whether a defendant can be held liable for substantive crimes committed by another in
furtherance of a conspiracy in which they were joined
Holding/reasoning: Yes. When a defendant is joined in a conspiracy, substantive crimes
committed to advance the conspiracy can be charged to all defendants as long as they are still
part of the conspiracy when those crimes are committed. Notion of a "continuous conspiracy.”
Don't need the assent of one member of the conspiracy in order to impute the unknown
conspiratorial act to them
Dissent: This is a dangerous precedent; Walter alone committed the substantive crimes
Notes on Pinkerton
Pros



Cons
Crimes are increasingly sophisticated and

empirical evidence about who controls
enterprises are well insulated from the

prosecution; would be unfortunate to preclude
exposure to additional sanctions for the crimes
which sustain illegal ventures…

This is a way to counteract the special
advantages of group organization
 Where individual members of conspiracies
are difficult to apprehend, conspiracy law
makes it possible to inflict costs on them
indirectly by punishing other members
who are more accessible
 Like other forms of collective sanctions,
conspiracy liability can serve as an
information-forcing tool
 Conspiracy law, along with other
accomplice liability doctrines, gives
criminal groups an incentive to monitor
and control excessively harmful activity
Notion of "group will"
Guilt should be thought as personal to
individuals
Proof is notoriously uncertain in the
context of conspiracy, because the
degree of inferences required
MPC rejects Pinkerton, imposing
accomplice liability on conspirators
for substantive crimes of coconspirators only when the strict
conditions for accomplice liability are
met
Applications of Pinkerton
 What about a new conspirator?
o It is not retroactive (Blackmon)
48

How does it compare to accomplice liability?
o Accomplice liability requires proof that the accomplice intended to promote or
facilitate the specific offense for which the prosecution seeks to hold him accountable
State v. Bridges
Facts: At a birthday party, defendant got in a heated argument. Defendant left, yelling he would
return with help, recruiting acquaintances to confront Strickland. They got guns. Member of the
crowd hit Bing, a conspirator, in the face, and then Bing and Rolle began firing their guns into
the crowd. Onlooker was fatally wounded. Defendant convicted to conspiracy to commit
aggravated assault and of several substantive crimes including murder.
PP: Appellate Division held that defendant was not responsible for the murder committed by
Rolle and Bing in the course of the conspiracy. Held that NJ Code requires a level of culpability
and state of mind identical to that required of accomplice liability for conspiracy to provide the
basis for criminal liability of for commission of substantive crimes.
LQ: Is the culpability requirement for conspiracy the same as that for accomplice liability?
Court: No. A co-conspirator may be liable for commission of substantive criminal acts that are
not within the scope of the conspiracy if they are reasonably foreseeable as necessary or natural
consequences of the conspiracy.
Concurrence/dissent: Interpreting the Code of Criminal Justice so that a sentence of life
imprisonment could be imposed on the basis of the negligent appraisal of a risk that another
would commit homicide conflicts with the structure of the code. If we assume that Bridges did
not intend that Shawn be killed, he could not have been convicted of attempted murder.
Defendant could not even have been found guilty of conspiracy to commit murder… a person is
guilty of a conspiracy to commit an offense only if "with the purpose" of promoting it, he or she
"agrees with another that they will engage in conduct which constitutes such crime…"
US v. Alvarez
Facts: Run down hotel in Miami was the scene of a drug buy engaged after negotiation. Shoot
out occurred. One agent killed, others wounded. Dealers convicted of conspiracy to commit and
commission of various drug offenses. Alvarez and Simon convicted of first degree murder of a
federal agent. Three of the dealers were convicted of second degree murder, though they played
no part in the shooting
LQ: Three dealers argue that their convictions were unprecedented expansion of Pinkerton;
Murder is not reasonably foreseeable in a drug conspiracy…
COURT: application is not improper. This was reasonably foreseeable given the knowledge of
weapons and knowledge that deadly force would be used in certain circumstances
RAKOFF COMMENTARY:
 Federal conspiracy statute (371) has a 5 year max, and if you are a prosecutor, you usually
feel that the conspirators are bad people, and want to maximize leverage for a plea bargain.
So Pinkerton lets you add 10 and 30 year accounts on a conspiracy case…. This might
make certain sense with a situation like a Mafia boss
 Charging everyone, including a no-nothing at the bottom, with massive substantive crimes,
seems perverse
49

Cover-ups are not presupposed… not considered an act in furtherance of a conspiracy.
Why?
Duration and Scope of a Conspiracy
Duration of a Conspiracy
 Once formed, a conspiracy remains until its objectives have been achieved or abandoned
(Kissel)
 SOL begins to run not when offense is committed, but when it terminates
Breadth of the conspiratorial objectives and concealment
 Conspiracy cannot be treated as including a cover-up agreement unless there is direct
evidence of an express original agreement among the conspirators to continue to act in
concert in order to cover up traces of the crime (Grunewald)
 No implicit cover up
Criminalizing non-criminal objectives
Agreement becomes punishable as conspiracy if objectives are unlawful. Unlawful objectives
include acts deemed offensive to public morals and acts that violate civil law regulations and
precedent. This means that it is possible under common law and under some statutes that
criminal conspiracy can be found for non-crimes…
 Public morals
o In Shaw v Director of Public Prosecutions, upheld conviction for conspiracy to
corrupt public morals
o In US, this doctrine is mostly rejected
 No- criminal objectives
o Punishable in CA to falsely move or maintain any suit, action or proceedings
Impossibility
 Should a conspiracy be considered terminated whenever its object becomes impossible to
achieve?
 SCOTUS says no; this would also threaten viability of properly running sting operations
Abandonment and withdrawal
 A defendant’s affirmative acts inconsistent with the object of the conspiracy and
communicated in a manner reasonably calculated to reach co-conspirators have generally
been regarded as sufficient to establish withdrawal or abandonment
 Courts typically require defendant to disclose the scheme to law enforcement authorities or
communicate his withdrawal to his co-conspirators, but it must be direct…
 Burden is on defendant
Renunciation as a complete defense
 Common law: renouncing enterprise does not shield you from punishment, the crime
cannot be uncommitted
 MPC now allows a complete defense for renunciation in some circumstances
50
o
When the circumstances manifest renunciation of the actor's criminal purpose and the
actor succeeds in preventing commission of criminal objectives (or, substantial effort
in some states)
Scope of punishment
 Traditional view permits separate punishments with consecutive sentences for the crime
and the conspiracy
 MPC says that a defendant may not be convicted of more than one offense if that offense
consists only of a conspiracy or other form or preparation to commit the other, but when an
agreement is to achieve carious criminal objectives and is not limited to a specific crime,
MPC allows for cumulative sentences
Single or Multiple Conspiracies?
Anderson v Superior Court
Facts: Petitioner challenges indictment for conspiring to commit abortions. Evidence revealed
she was one of several people who referred women to an abortionist. Indictment alleged
conspiracy embraced the greater enterprise
Court: Inference is that, if evidence is believed, petitioner knew that Stern was engaged in the
commission of abortions not casually but as a regular business and that others like herself
conspired with him. Even if these people are unknown to her, there is enough evidence to find
there was conspiracy.
Multiple Objectives
US v Braverman
 Government indicted defendants on seven counts, each charging a conspiracy to violate a
separate provision of the IRS laws
 Defendants found guilty
 SCOTUS reversed: gist of crime of conspiracy is the agreement to commit one or more
unlawful acts; when the object to a single agreement is to commit one or many crimes, it
is in either case the singular agreement….
Albernaz v US
 Sharply limited the rule above. Defendant conspired with others to import and distribute
marijuana, charged with conspiracy for both
 Only a single agreement, but Court allowed two convictions, because separate statutes
proscribed conspiracy to import and conspiracy to distribute
 By enacting two statutes, Congress manifested intent to separate…
 In Braverman, only one statute…
Kotteakos v. US
Facts: Kotteakos was one of several loan applicants on behalf of whom Brown made fraudulent
applications for loans under the NHA. Brown was a broker for each applicant, but there was no
connection among the various applications. Kotteakos argues that the prosecution had failed to
show that there was a single conspiracy linking them.
51
LQ: Can you group a massive amount of people into one conspiracy when it seems that there
were several conspiracies going on?
Holding: No. A conspiracy does not necessarily arise when one person has criminal interactions
with two or more people who have no connection with each other, despite their connection to the
original person
Reasoning: No evidence showing that all conspirators were part of a common plan or scheme.
Conviction would be similar to convicting many thieves of conspiracy because they all sold
stolen goods to the same broker. This is a "wheel" system, where a single individual acts as the
hub with separate spokes who act independently…
US v. Bruno
Facts: Bruno, Iacono, and 86 others indicted with conspiracy to import, sell and possess
narcotics. They complain that there could only be three conspiracies, not one big one: one
between the smugglers and middlemen, one between the middlemen and retailers, and one
between different retailer groups
LQ: Many conspiracy?? One conspiracy?
Reasoning: It's ok that there was just one conspiracy charged here. Logically, everyone in the
conspiracy knew that the conspiracy depended upon the actions of other people in the chain,
even if they were not directly called upon…
US v Borelli
Facts: Elaborate heroin import and distribution operation
Court: Chain v. spoke conspiracy is important, but can be obscure. Chain can be confusing
when single people play different roles and there is a long span of time. Makes it hard to apply
the notion of a conspiracy as an "agreement.” Gist of the offense is the agreement, and it is hard
to tell what agreement can be reasonably inferred
US v. McDermott
Facts: McDermott appeals from a judgment convicting him of conspiracy to commit insider
trading in violation. McDermott argues evidence was insufficient as a matter of law to support
convictions. Arose out of a triangulated love affair. McDermott told adult film star Gannon about
good stock picks, and it looks like Pomponio, another one of Gannon's clients, got and used these
recommendations
Court: Very circumstantial evidence. Precedent pushes against this. Three hypothetical avenues
of liability in such an attenuated circumstance:
 Scope of agreement needs to be broader to include trading by persons other than small
group of conspirators
 Winans might have been liable for Sptratt trades had they been part of the ramifications
of the plan that could be reasonable foreseen
 Liable if he had known of the relationship….
Parties
Gebardi v. US
Facts: Gebardi took future wife to another state before marriage so they could have sex. Woman
did this voluntarily. Bought tickets for both of them sometimes. Convicted of conspiracy to
52
transport across state lines for an immoral purpose, which was prohibited under Mann Act.
Nobody else named as participant in conspiracy
Holding: A woman is not liable for conspiracy to violate the Mann Act, or for violation of the
law, if she agrees to be transported across state lines for an immoral purpose
Reasoning: Statute encompasses conduct by a woman in the wife's position only if she had aided
or assisted another person in transporting her. Wife's participation was merely an agreement
rather than assistance. Husband could not be convicted of conspiracy to violate Mann Act
because there was no agreement with any other party once his wife was removed from the case
NOTES ON GEBARDI:
 Gebardi rule
o One may submit with some confidence that a person cannot be convicted of
conspiracy when there is a recognized rule of justice or policy exempting him from
prosecution from the substantive crime
 Acquitted co-conspirator
o What to do when all co-conspirators but one are acquitted
o Reject rule of consistency and allow conviction
 Whatron's Rule
o When plurality of agents is logically necessary, conspiracy, which assumes the
voluntary accession of a person to a crime of such a character that it is aggravated by
a plurality of agents, cannot be maintained… in other words, when the law says, such
an offense shall have a certain punishment, it is not lawful for the prosecution to
evade this limitation by indicting the offense as conspiracy
 MPC rejects Whaton's Rule
o Overlooks functions of conspiracy as an inchoate crime
o An offense inevitably requires concert is no reason to immunize criminal preparation
to commit it
o Rule operates to immunize from a conspiracy prosecution both parties to any offense
that inevitably requires concert, thus disregarding the legislative judgment that at least
one should be punishable and taking no account of varying policies that ought to
determine whether the other should be
Garcia v. State
Facts: Garcia (Defendant), conspired with another individual to hire a person to killer her
husband. The individual whom which she conspired was in fact a police informant who never
had any intention of actually assisting the Defendant in carrying out her plans.
LQ: Does a conspiracy conviction fail if one of the parties to the conspiracy is actually a police
informant that has no intention of carrying out the conspiracy?
Holding: No. Affirmed. The inclusion in the Indiana conspiracy statute that “it is no defense that
the person with whom the accused person is alleged to have conspired: (5) cannot be prosecuted
for any reason” necessarily means that a defendant can be convicted of conspiracy even when
his/her co-conspirator could not be so convicted because of a lack of criminal culpability.
Illustrates a state conspiracy statute that does not require actual “meeting of the minds”
among conspirators for any one conspirator to be prosecute
Rationale for Traditional Approach
 Criminal conspiracy is an offense separate from criminal act
53


Dangers associated with conspiracy are non-existent when a person conspires with a
government agent
Traditional rule responds to same concern that underlies entrapment defense: law
enforcement should not function to manufacture a crime
Reassessing the Law of Conspiracy
It's bad (Johnson)
It's good (Katyal)





Abolish it

Conspiracy adds only
confusion
Conspiracy is inchoate and
the touchstone for invoking 
independent procedural and
substantive doctrines

Defendant may be tried
jointly with criminal partners
whom he has never met, in a 
place he has never visited
The use of a single abstract
concept to decide numerous 
questions that deserve
separate consideration in
light of the various interests
and policies they involve is a
problem
We can reverse engineer
psychological principles to
make conspiracies operate less
efficiently
We can apply this to
conspiracy law too…
We want to prevent
conspiracy from forming with
high up front penalties
Doctrines allow information
extraction and make
conspiracy hard to create
Mechanisms for defection
erode trust within groups
54
RICO Conspiracy
RICO








Liability for a RICO violation requires that a person (1) be involved (2) in an enterprise that
(3) operates through a pattern of racketeering activity
Made in response to concern over organized crime growing too sophisticated for traditional
conspiracy law
Used to prosecute everything from business fraud to street gangs – penalties imposed for a
RICO violation can be far higher than those that would apply to the underlying criminal acts
that are part of a pattern of racketeering activity
RICO also permits people to bring civil suits, awards treble damages for injuries resulting
from RICO violations, and creates a fertile field for civil litigation
Congress instructed courts to give RICO a broad reading
Evades the SoL because you just need one act every 10 years
No one has to be convicted of the underlying crimes, they just have to be chargeable (you
have to show conduct beyond a reasonable doubt though)
Prior similar acts can be admissible…
Controversy over RICO
 Distorts civil litigation
 Concerns about pretrial seizure of assets, forfeiture of assets connected to the enterprise,
and related matters
 Forfeiture: State can seize assets that should be substituted for money that you
have wrongly spent. This typically means that money you would spend for a
lawyer would be unavailable… in effect, government depriving you of realistic
shot at winning. Still the case in federal courts, but NY has recently said that the
state can no longer attach substitute assets, though they are available after
conviction
 Worried about breadth and vagueness of RICO offense, guilt by association, etc.
 Evidence of prior crimes allowed to be admitted under RICO charges, where it otherwise
wouldn’t be admissible
The Act
Section 1961. Definitions
1. Racketeering activity means
a. Any act or threat involving murder, kidnapping, gambling, arson, robbery, etc...
Which is chargeable under State law and punishable by imprisonment for more than
one year
b. Any act which is indictable under any of the following provisions…. [bribery,
counterfeiting, etc.]
c. Any act dealing with loans to labor organizations
d. Any offense involving bankruptcy fraud, securities, etc.
e. Any act indictable under the Currency and Foreign Transactions Reporting Act
f. Any act which is indictable under the Immigration and Nationality Act
g. Any act that is indictable under any provision concerning international terrorism
55
2. Enterprise includes any individual, partnership, corporation, association, or other legal
entity, and any union or group of individuals associated in fact although not a legal entity
3. "Pattern of racketeering activity" requires at least two acts of racketeering activity, one of
which occurred after the effective date of this chapter and the last of which occurred within
ten years after the commission of a prior act of racketeering activity
Section 1962. Prohibited Activities
A. Unlawful for anyone who has income directly or indirectly derived from racketeering or
through collection of unlawful debt to invest or use that income in any enterprise that affect
interstate of foreign commerce
B. Unlawful to maintain the commerce
C. Unlawful for anyone employed by or associated with an enterprise…
D. Unlawful to conspire to violate the section
Section 1964. Criminal Penalties
A. Whoever violates any provision of 1962 shall be fined and imprisoned for not more than 20
years or for life if violation is based on an activity for which maximum penalty includes
life imprisonment
Elements of a RICO Charge
1. Criminal Enterprise Requirement
 §1961(4) definition: “enterprise” includes any individual, partnership, corporation,
association, or other legal entity, and any union or group of individuals associated in fact
although not a legal entity
 What satisfies element of an enterprise?
o Principle enterprise in mind was the Mafia
o Can include an organization engaged in some legal activities, or an exclusively
criminal organization
 Must be:
o (1) “Associated in fact”: group of persons associated together for a common
purpose of engaging in a course of conduct (United States v. Turkette)
o (2) Have a structure: in Boyle v. United States, SCOTUS held that an
association-in-fact must have a “structure,” but required very little to establish it
 At least three structural features: a purpose, relationships among those
associated with the enterprise, and longevity sufficient to permit these
associates to pursue the enterprise’s purpose
 Ascertainable structure is established as long as the group “functions as a
continuing unit and remains in existence long enough to pursue a course of
conduct”
2. Pattern Requirement
 §1961(5) definition: requires two acts of racketeering activity, one of which occurred after
the effective date of this chapter (Oct. 15, 1970) and the last of which occurred within ten
years (excluding any period of imprisonment) after the commission of a prior act of
racketeering activity.
56


Only has to be chargeable or indictable act of racketeering
o Defined by §1961(1) long list of racketeering activity above.
What constitutes as pattern?
o Must be (1) related and (2) continuous:
 United States v. Elliot (5th Cir. 1978) found that “two or more predicate
crimes [of a pattern] must be related to the affairs of the enterprise but
need not otherwise be related to each other”
 Ongoing desire to make money therefore sufficient to create a
“pattern” out of discrete criminal acts
 SCOTUS in H.J. Inc. v. Northwestern Bell Telephone Co., (1989): To
qualify as a pattern, the criminal activities must be related and continuous
 Relatedness: Established if the crimes have similar characteristics
such as the same perpetrators, victims, and methods of commission
(related to overall enterprise)
 Continuity: Acts must be shown to be “related, and that they
amount to or pose a threat of continued criminal activity”
3. One of Four Prohibited Activities
Conduct and Participation Requirement – §1962(c)
o Courts have since clarified that “to conduct” requires “an element of direction” or
control, whereas “to participate” still requires that the defendant have some part in
directing the enterprise’s affairs, albeit a lower threshold, as it need not be a primary
responsibility, Reves (1993)
o After Reves, many courts upheld liability under §1972(c) for low level employees who
carried out instructions issued by managers of a RICO enterprise, provided that the
employees had some degree of importance or autonomy
RICO Conspiracies – § 1962(d)
o RICO statute includes a provision §1962(d) that covers conspiracies to violate
subsections (a)-(c), essentially prohibiting conspiring to engage in conspiracy
o RICO conspiracies do not require proof of any overt act
o Enterprise itself is important link in evidentiary chain for finding single conspiracy under
RICO where previously multiple conspiracies would exist
o Defendant’s knowledge of the enterprise’s existence is probative of a central
purpose
Turkette
1st Circ: the whole history of RICO says this is intended to be used against organized crime
57
Northwestern Bell
 SCOTUS: what is meant by pattern of racketeering activity?
o Need two predicate acts
o Phone company supposedly bribed some folks
o Two acts where within one legal scheme
o Court found that one legal scheme is sufficient to find a pattern of racketeering
o Pattern must mean more than 2; you need something more to say that 2 is a pattern
o SCOTUS demands some continuity between temporal acts (two acts have to occur
over a period of at least 2 years
o Cannot just be two unrelated crimes
o There can be open ended and closed ended schemes
 Closed: scheme is over
 Open: likely to reoccur
US v. Elliot
LQ: Whether, and if so how, a free society can protect itself when groups of people through
division of labor, specialization, diversification, accumulation of capital, turn crime into an
ongoing business
Reasoning
 "Enterprise conspiracy" is a legislative innovation
 Need to consider whether this innovation comports with the demand of due process that
guilt remains individual and personal
 RICO applies to insiders and outsiders who participate directly and indirectly
 Remote associates can be convicted as conspirators on purely circumstantial evidence
 Does not offend the rules that guilt be individual and personal
o Does not authorize individuals being tried on mass
o Does not punish mere association, does not concern status
58
Defenses (Excuse)
General
•
•
Defenses generally operate in three ways conceptually
• Disproving the Elements
• Excusing the Defendant’s Conduct
• Justifying the Criminal Conduct
Further options can sit in between, such as not excusing criminal conduct but deeming it to
be less culpable.
We have touched upon defenses before, recall our study of provocation and extreme
emotional disturbance
• Kadish: a few accounts on why we have excuses:
• Bentham: No sense in punishing conduct that is by its nature non-deterrable
• Hart: By confining liability to cases in which persons have freely chosen excuses
serve to maximize the effect of choices within the framework of the law, which
furthers satisfaction derived from knowing one can avoid sanction if they choose
• Kadish: To blame a person is to express moral criticism; excuses are not a
compromise with the demands of a moral code, but are an integral part of them
What do We Mean by Excuse?
• Excuse focuses on the characteristics of the individual, rather than the act.
• Act remains relevant though (e.g. duress is regularly not recognized where crime
is homicide)
• Excuse can remove criminal liability or just mitigate it
• Excuse, as with other defenses, raises questions about the values driving our system of
criminal justice and the degree to which the system reflects those values
• Issues with culpability and deterrence balance against concerns about
administrability and assessment
Core Types of Excuse Defenses
• Three Core Forms of Excuse
• Duress
• Intoxication
• Mental Disorder
• Others Exist, Development Remains to be Seen
• E.g.: drug addiction, childhood abuse, economic circumstances etc.
• Note, even where something may not be recognized or succeed as a defense to the
conviction, it may still be taken into account in sentencing, or even up front as a
matter of prosecutorial discretion.
• Milhizer: Excuses are grouped in three categories:
• Involuntary actions: body movements that are not willed by the actor
• Cognitive deficiency: concerns an ability to know both facts and law
• Volitional deficiency: concerns an actor's ability to make unencumbered choices
or to meaningfully control his behavior. This person is voluntarily acting, but
there is something more that impairs the actor's will
59
Duress
Requirements for Duress
 Harm (Threatened or Actual)
o Present
o Imminent
 If future, must be able to show that you could not escape situation or
contact for help
o Involves death or serious bodily harm
 Need not be to actor though, can be to others. Harm to property and less
than severe bodily harm not recognized basis.
 Criminal Act
o Restricted to non-homicide under common law, or at least no killing of an
innocent person. MPC allows duress as an excuse to homicide.
Necessity v Duress
 Necessity is a defense resting on the rationale of justification; in the circumstances, it was
the less evil thing to do
 Duress: this is the rationale of excuse. It was not beneficial, or more beneficial than some
other choice, but the circumstances are compelling enough to think that another lawabiding person would have done the same
 It seems that these lines can be blurred quite easily
 Justification defense is allowed regardless of the source of peril, but duress must arise from
the threat of another person
Model Penal Code
Section 2.09. Duress.
(1) It is an affirmative defense that the actor engaged in the conduct charged to constitute an
offense because he was coerced to do so by the use of, or a threat to use, unlawful force against
his person or the person of another, which a person of reasonable firmness in his situation would
have been unable to resist.
(2) The defense provided by this Section is unavailable if the actor recklessly placed himself in
a situation in which it was probable that he would be subjected to duress. The defense is also
unavailable if he was negligent in placing himself in such a situation, whenever negligence
suffices to establish culpability for the offense charged.
(3) It is not a defense that a woman acted on the command of her husband, unless she acted
under such coercion as would establish a defense under this Section. [The presumption that a
woman, acting in the presence of her husband, is coerced is abolished.]
(4) When the conduct of the actor would otherwise be justifiable under Section 3.02, this
Section does not preclude such defense.
MPC Duress Rule
MPC does not permit a duress defense for any naturally arising peril, no matter how severe
60
o Notes justify distinction because naturally arising peril precludes prosecution of
anyone for injustice
Unlawful threats must be against person, rather than property
Subjective standard would go too far -- don’t allow individual properties of men to evade law,
shouldn’t allow duress to do so
o Still account is taken for actor’s “situation,” e.g. his physical attributes, but not his
temperament
“Situation” of defendant hard to identify -- often left to jury
o Often held that age and intelligence, even to the point of mental handicap, should not
be considered as part of the defendant’s “situation”
o Lots of variation in courts on how to apply this:
 Rejected that a 16-year-old should have an eased standard given maturity
issues (Heinemann)
 Rejected that low IQ, even if sufficient to establish mental retardation, could
establish a lower RPS (Johnson)
 Compare with the PN SC, which held that mental retardation could be
considered as part of a person's "situation" (DeMarco)
Under common law, defense of duress denied in cases entirely, while under MPC, sufficient
duress excuses homicide altogether
While MPC lists “imminence” as one factor to be weighed in determining whether conduct was
that of a person of “reasonable firmness,” some statutes still limit defense to cases involving
threats of “instant” death
o Many statutory revisions also rejected MPC’s flexible approach and preserved some
requirement that threatened harm be “immediate,” “imminent,” or “instant”
Courts now uniformly hold that evidence of battered woman’s syndrome (BWS) is admissible to
support a claim of self-defense when a woman facing an immediate threat kills her abuser
o Courts do not agree about whether BWS evidence is admissible when the woman
claims duress as an excuse for participating in a robbery or drug deal under pressure
from her abuser
o Unclear to which factual issues BWS evidence is relevant -- e.g., sometimes held not
to affect “reasonable firmness,” but rather whether defendant recklessly placed
themself in situation
State v. Toscano (Supreme Court of NJ 1977)
Facts: Toscano was arrested as part of an insurance fraud scheme. Toscano argued that he acted
under duress, as he owed money to someone who was constantly threatened him and his wife.
The trial judge found that a defense of duress is applicable only where there is an allegation that
an act was committed in response to a threat of present, imminent and impending death or
serious bodily harm. Toscano appeals on the jury instructions, argues that he should have had his
defense of duress submitted
LQ: What is the standard for a common-law duress defense?
Holding: NJ has no applicable statute defining defense of duress, so guided only by common
law principles. At common law, defense of duress recognized only when the alleged coercion
involved a use or threat of harm which is “present, imminent and pending” and “of such a nature
as to induce a well-grounded apprehension of death or serious bodily harm if act is not done.
Duress not applied when forced to murder, but seemed to be only exception. To excuse a crime,
61
threatened injury must induce “such a fear as a man of ordinary fortitude and courage might
justly yield to. When alleged source of coercion is a threat of “future” harm, courts have
generally found defendant had a duty to escape from the control of the threatening person or to
seek assistance from law enforcement authorities. Concern for the well-being of another also
sufficient given all other requirements met.
US v. Fleming (SCOTUS 1957)
Facts: Defendant court-martialed for collaborating with the enemy by helping make propaganda
in Kore. Defendant was a POW. His circumstances were quote bad, forced marches, physical
abuse, etc. Colonel Kim in charge of camp threatened defendant with a 150-200 mile walk north
to previous military camp if he did not comply with orders to create propaganda, or threat of
being placed in “caves” in hillside.
LQ: Was the creation of this propaganda excused?
Holding: No. court upheld conviction, requiring “well-grounded apprehension of immediate and
impending death or of immediate, serious, bodily harm” for excuse of duress to succeed
Reasoning: Court held that it was unclear whether he would have died on the march or have
been forced on the march at all, thus not immediate or imminent threat of death or serious bodily
harm. Threats too remote.
US v. Contento-Pachon (9th Cir. 1984)
Facts: Defendant was a taxi driver. Passenger, Jorge, proposed that he swallow coke filled
balloons and transport to the US. He was told not to mention the proposition to anyone,
otherwise he would "get into serious trouble.” Contento-Pachon decided against it, and was told
if he didn't, his wife and child would be killed. He was worried telling the police about the set-up
would lead to his family's death. Government moved to exclude duress defense, which was
granted, and then the court of appeals reversed
LQ: Should Contento be allowed a defense of duress?
Holding: This is a triable issue that should not have been precluded.
Reasoning: Defendant must show that he had no opportunity to escape; a trier of fact could see
some discrepancies here. There is a reasonable question of escapability.
Regina v. Ruzic (Canada1998)
Facts: Defendant is a 21-year-old woman who traveled from Yugoslavia to Toronto with two
kilos of heroin strapped to her body. She argued duress, saying a known killer had stabbed and
burned her arm and threatened to "do something" to her mother if she would not carry heroin.
She said she didn't trust the Yugoslav authorities and did not tell the police. The trial court
instructed the jury on compulsion as a defense but refused to specify that the threat had to be
immediate, against the defendant, and made by a person present when the offense was
committed. Jury acquitted, got appealed
LQ: Were the instructions on duress appropriate without mention of immediacy?
Holding: Yes
Reasoning: The court of appeals held that the restrictive conditions in the duress statute violated
the Canadian Charter of Rights and Freedoms. Court reasoned that if the defendant's story were
believed, the threat left her no realistic choice, even though the threat was not immediate and the
threatener was not present when she committed the offense. Convicting would be a violation of
principles of fundamental justice
62
QUESTIONS
 Should we reject the immediacy requirement? What restrictions are justified?
 Should it matter if a defendant is in some way to blame?
Intoxication
General
 Serves as a categorical basis for negating specific intent crimes
 When intoxication is proffered as an excuse, applicable law depends on whether the
defendant became intoxicated voluntarily or involuntarily
 Does not render all actions involuntary, or preclude mens rea, specific or general
 Jurisdictions differ on whether they will allow evidence on intoxication as a way to
challenge mens rea
 Intoxication is less of an excuse, and more of negating an element of a crime
 Involuntary intoxication concerns how it happened, and when did you realize?
People v. Hood (Supreme Court of CA 1969)
Facts: Defendant drunkenly resisted arrest, was fighting with a police officer, accidentally
discharged a gun, etc.
LQ: Can voluntary intoxication be an excuse in a general intent crime?
Holding: No
Reasoning
 General intent: Intoxication is not a defense
 Specific intent: Intoxication is a defense
Intent to commit a battery is covered by both specific and general intent, so we have to decide
the case on other considerations. When it comes to simple assault, you do not need the sort of
consciousness necessary as when there is some planned-out crime. Assault with intent to kill
clearly specific intent crime. Evidence of intoxication could be considered to negate a required
specific intent, but not negate “general intent.”
State v. Stasio (NJ 1979)
Facts: Defendant convicted of assault with intent to rob. "Specific intent" crime
LQ: Is evidence of voluntarily intoxication admissible?
Holding: No
Reasoning: Court conceded the crime was one of specific intent, but ruled evidence of voluntary
intoxication inadmissible. Found that distinguishing between specific and general intent gives
rise to incongruous results by irrationally allowing intoxication to excuse some crimes but not
others. Traditional approach may free defendants of specific intent offenses even though harm
caused may be greater than in an offense held to require only general intent. Holding does not
mean that voluntary intoxication always irrelevant to criminal proceedings. Evidence may be
introduced to demonstrate that premeditation and deliberation have not been proven. May also be
considered as mitigating circumstance when sentencing defendant.
Dissent: This guy never intended to rob or steal anything. This holding defies logic and public
policy. Majority reasoning is that voluntary intoxication can never constitute a defense to any
crime other than first degree murder. Most jurisdictions just don't allow intoxication into
63
evidence, no matter how relevant it might be. It seems more straightforward to admit evidence
whenever it is logically relevant to a fact in dispute.
Notes
 There is a close connection between alcohol and violent crime; 40% of state prisoners
convicted of violent crimes were under the influence… therefore, people are reluctant to
give it these added protections
 MPC rejects the general/specific distinction and focuses on the question of when
intoxication evidence should be admissible
Regina v. Kingston
Facts: Penn lured a 15-year-old boy to his flat and then invited defendant over to abuse the boy
sexually. Penn photographed and audiotaped the defendant. Defendant said he could not
remember drinking anything before going to the bedroom, but stated he drank some coffee in the
flat, and thinks he put something in it… At trial, judge instructed jury to acquit defendant only if
it found that because of the drug he did not intended to commit an indecedent assault, but so long
as he did have that intent, it was irrelevant that he had been drugged. Jury convicted; Defendant
appealed
LQ: Is involuntary consumption of alcohol a defense for indecent assault?
Holding: Yes
Reasoning: The law should exculpate someone when the operative fault is not his. Defense here
applies to all offenses, except perhaps to strict liability. The defense is not a complete answer; it
not rebutted it leads to acquittal. Defense is subjective in nature, it concerns this person's
inhibitions, not the RPS for consumption
Two reasons to reject defense
 Involuntary disinhibition does not negate mens rea, because an intoxicated defendant still
possesses the intent
Mental Disorders (Defense of Legal Insanity)
General
 Mental incapacity can be a defense to a criminal charge, or it can preclude the guilty plea,
trial, sentencing, or execution of a defendant
 Key idea is someone can’t be liable when they lack the capacity to appreciate the nature
of their conduct; ignorance of the law is not excuse, but inability to understand the law is
 Overlaps conceptually with involuntary acts; however, involuntary acts render an action
not-criminal, while mental disorders excuse the crime
 Burden and standard of proof vary; generally, on the defendant by a preponderance of
the evidence
o Some are more demanding, requiring “clear and convincing evidence” (like
federal courts) or “to a reasonable certainty”
 Insanity defense is rarely raised and rarely successful
Terms
 "Mental illness" is a medical rather than a legal term, used by clinicians to refer to a
disorder recognized by the community for purposes of diagnosis and treatment
64
o

Medical category of mental illness far broader than legal categories of insanity or
incompetence
o Possible and common for people suffering from mental illness to be held neither
insane nor incompetent
"Insanity" is a legal term that refers to mental state that is considered sufficient to preclude
criminal responsibility
o
o
o

Overall, the insanity defense is raised in less than 1% of felony cases. Successful insanity
defenses raise from about 0.25% of all felony cases to 0.10% of cases: success rate of 1
in 1000
In Ford v. Wainwright (1986), SCOTUS held that 8th Amendment’s proscription of cruel
and unusual punishment bars execution of insane
In Atkins v. Virginia (2002), SCOTUS held that Eighth Amendment precludes execution
of persons with mental retardation, even if they are not “insane” under Ford standard
"Incompetence" is a legal term that refers to a mental state at the time of a legal
proceeding; lacking sufficient capacity to understand or participate in the proceeding is
incompetence
o Because determinations of insanity and incompetence refer to different time
periods, and legal standards for each are different, possible that a person could be
deemed insane yet competent, or the converse
o MPC §4.04 states generally accepted test of competence to be tried and
sentenced; no uniform standard for competency evaluations
Civil Commitment
 SCOTUS upheld constitutionality of mandatory commitment in Jones v. United States
(1983)
 Lots of quasi-punitive or criminal proceedings/punishment that have lowered standards
 If by virtue of some mental disability, you are a danger to yourself others, by a
preponderance of the evidence you can be put away
 Judge, after a hearing, decides whether to commit a person indefinitely to a mental
institution because he is suffering from a mental disability which makes him a danger to
himself or others
o In states that adopt this approach, insanity acquittees may be committed only in
compliance with procedural and substantive standards for any mentally disturbed
person in community, and there are constitutional restrictions on civil
commitment
 Many states have enacted special commitment procedures for insanity acquittees in
which crucial factual findings (mental illness and dangerousness) can be made by
preponderance of evidence
 Other jurisdictions have automatic and mandatory commitment for insanity acquittees
Tests
These tests generally excuse when a defendant is unable to know, or appreciate, that her action
was “wrong”; second, they generally require that the disabling condition, however defined, be
attributable to a “mental disease or defect…”
M’Naghten: In order to establish defense on ground of insanity, must be clearly proved that at
the time of committing the act, the party was (1) laboring under such a defect of reason, from
65
disease of mind, as to not know the nature and quality of the act he was doing, or (2) if he did
know it, he did not know what he was doing was wrong
Federal: Affirmative defense to a prosecution under any Federal statute that, at the time of the
commission of the acts constituting the offense, the defendant, (1) as a result of severe mental
disease or defect, (2) was unable to appreciate the nature and quality or the wrongfulness of his
acts. Mental disease or defect does not otherwise constitute a defense
MPC: Defendant was diagnosed with a mental defect, and at time of incident could not either (1)
appreciate criminality of their conduct, or (2) conform their conduct to the requirements of the
law [irresistible impulse]
Durham (1954): Accused is not criminally responsible if their unlawful act was the product of
mental disease or mental defect
State v. Green (Tenn. 1982)
Facts: 18 yo Steven Green shot and killed Chattanooga police officer with officer’s own gun in
city park where homeless Green lived. Mentally ill, diagnosed and treated over the years.
PP: Initially found incompetent to stand trial, but after intensive drug therapy, stood trial. mental
health experts testified that Green was insane at time of offense, which prosecution did not
dispute. prosecution rather presented officers who had contact with Green at time of arrest and
found him to appear “normal.”
Holding: Convicted of first-degree murder.
Yates v. State (Tex. App. 2005)
Facts: After series of depressive episodes and hospitalizations, Yates drowned her 5 children.
PP: at trial, 12 mental health professionals testified re Yates’s state, and all agreed she was
psychotic at time of offense
Holding: Jury nonetheless rejected insanity defense and found her guilty of capital murder,
sentenced to life imprisonment
Notes: State v. Green and this case reversed on appeal, though reversal on appeal is rare. Shows
insanity defense rarely asserted and even more rarely accepted.
M’Naghten’s Case (England 1843)
Facts: Defendant indicted for murder of Drummond. M'Naghten thought Drummond was the
PM and shot him by mistake. M'Naghten was obsessed with delusions and suffered from acute
insanity. Jury said not guilty, on grounds of insanity. This led to the development of the
M'Naghten rules amongst concern by the Queen, the public, etc.
The Court: Jurors should presume that every man is sane unless proved otherwise. The
defendant must prove that, at the time of the act, he was laboring under a defect of reason as not
to know the nature and quality of his act, or did not know it was wrong…. If the accused knew
that the act was one which he ought not do, he is punishable
The King v. Porter(England 1933)
Facts: Presiding at trial, Justice Dixon explained the M'Naghten Rule in his charge to the jury
Court: The purpose of the criminal law is to punish people and thereby prevent others from
committing similar crimes, and some retribution too. It is useless for the law to try to punish
people whose mental condition is such that they cannot be influenced by the possibility or
66
probability of subsequent punishment. The criminal law is not directed to the care of people with
a weak mind. Many people are odd, but can appreciate that what they are doing is wrong
 You should be concerned with
o Status of mind at time of act
o Mind must be of disease, disorder or disturbance; not excitability or stupidity or
passion
o Must have been of such a character character as to prevent him from knowing
physical nature of act he was doing or of knowing that what he was doing was wrong
Blake v. US (5th Cir 1969)
Facts: Blake was in and out of psychiatric institutions his whole life. He had a few drinks at a
bar, then went out and robbed a bank, seemingly upset that they mishandled a trust he created or
was assigned. He got away, and then returned and filed a writ of habeas corpus in court where he
was then arrested. The district court gave instructions in evaluating his potential schizophrenia
under the Davis standard, the use of which is the subject of appeal
LQ: What standard should be used in evaluating mental illness as an excuse?
Court:
 Davis: "Insanity" means such a perverted and deranged condition of the mental and moral
faculties as to render a person incapable of distinguishing between right and wrong, or
unconscious at the time of the nature of the act he is committing, or where, though
conscious of it and able to distinguish between right and wrong, his will has been otherwise
than voluntarily destroyed.
 MPC: (1) a person is not responsible for criminal conduct if at the time of such conduct as
a result of mental disease or defect he lacks substantial capacity to either appreciate his
criminality of his conduct or to conform his conduct to the requirements of law
The facts, read favorably to the government, show the lack of complete mental disorientation
under Davis, although some evidence could have suggested otherwise. He might have
prevailed under the MPC charge. The "substantial" charge would allow the jury to properly
weigh all the evidence.
RAKOFF
 Should mental illness be a question of causal analysis?
 What is the proper standard for insanity? Is it appropriate for judges to make this
determination?
Durham v. US
 Changed the federal standard for insanity for about 30 years, and was ultimately overruled
 Right/wrong test of M'Naghten is too narrow. We are talking about mental diseases or
defects, and they can have lots of symptoms
 Test: accused is not criminally responsible if his unlawful act is the product of mental
disease or defect (proximate causation, basically)
US v. Lyons
Facts: Indicted on 12 counts of knowingly and intentionally securing controlled narcotics.
Proffered evidence that in 1978 he suffered painful ailments, was prescribed narcotics, and
became addicted. Defense moved forward on a defense that he was an addict and unable to
comport himself to the requirements of the law.
67
LQ: Is Lyons' conduct excused under a mental illness defense?
Holding: No, it is not
Reasoning: Precedent clearly states that being an addict is not sufficient, and in light of this, we
are creating a new standard. Now hold that a person is not responsible for criminal conduct on
grounds of insanity only if at time of conduct, as a result of mental disease or defect, he is unable
to appreciate wrongfulness of that conduct. No measure for person’s capacity for self-control
(irresistible impulse defense). Risks of fabrication and moral mistakes greatest when experts
and jury asked to speculate whether defendant had capacity to control himself or whether he
could have resisted criminal impulse. We don't lose anything important; there is some overlap
between volition and cognitive ability
Dissent: Blame is a moral judgment, and the volitional prong is an important element of it.
Policy reasons cannot override this. Fraud is not an issue here: very few insanity pleas are ever
made, and most are unsuccessful. There is a lot of public concern about these people being
released upon a successful insanity plea, but that rarely happens either. Battle of the experts and
jury confusion is not a problem either. Most of these things are plea bargains and do not go to
trial. This is about ethics and morality, not on the views of some psychiatrists. The rule adopted
here is almost certain to lead to people being convicted who are not fit for any of the aims of the
criminal justice system
Notes on Volitional Prong
 Practical concerns: the line between those who can't and those who won't is clear enough.
Court has accepted this distinguishing feature in other contexts in the past, and advances in
neuroscience are helpful to us here
 Levy: We cannot hope to sift out the blameworthy from the blameless unless we figure out
what the thresholds are for each capacity and how diminished those capacities became.
This is a hard thing to measure….
68
Self-Defense
General

Defenses generally operate in three ways conceptually
o Disproving the Elements
o Excusing the Defendant’s Conduct
o Justifying the Criminal Conduct
Justification
 Justification is where defendant accepts responsibility but denies that conduct was bad
o Whereas excuse admits conduct was bad but doesn’t accept full, or even any,
responsibility
 Justification focuses on the characteristics of the act, rather than the individual.
o Individual remains relevant, though degree of relevance varies by how subjective
applicable jurisdiction allows (Thus, three-part spectrum: reasonable person,
reasonable person in their shoes, what they believed)
o As with excuse, justification can remove criminal liability or just mitigate it
 Justification, as with other defenses, raises questions about the values driving our system of
criminal justice and the degree to which the system reflects those values
o Issues with individual autonomy, protection of physical well-being, overall
justification for government’s monopoly on violence balances against concerns about
administrability, assessment, self-help
Self-Defense
•
•
•
•
•
Core of Justification in Criminal Law: Self-Defense
When: May apply to defense of self or defense of a third-party
Effect: May be Perfect or Partial Defense (Complete or Mitigating)
What: The allowable use of force to protect self or a third-party against unlawful force
• Actual or apparent perceived threat
• Unlawful and immediate
• Reasonable belief in threat of (harm)/(death or serious bodily harm)
• Reasonable belief that response was necessary to self-defense
Shapes: Jurisdictions are free to shape the circumstances under which they will allow
self-defense to apply
• Duty to Retreat: Jurisdictions may require a person to retreat, where they can do
so safely, before using deadly force in self-defense, this is not universal though
(stand your ground laws)
• See State v. Abbott (N.J. 1961)
• Castle Doctrine: Even where a jurisdiction may have a duty to retreat, may carve
out home, because of intuitive concepts about justice, concerns about unrealistic
expectations, etc.
• Issues within that though about guests, co-occupants etc.
69
•
Unclean Hands: Some jurisdictions may make self-defense inapplicable if the
defendant was the initial aggressor; however, the defendant may still be able to
“reset” her eligibility for the defense if she made a good-faith effort to disengage
Imminence
 Should jurors hear self-defense issues when escape appears impossible to a battered
woman, but is possible in fact?
 Imminence often takes relevance in cases where there is active fighting going on and it
escalates. It therefore often operates as a proxy for self-defense factors; strength of the
threat, opportunity to retreat, proportionality, aggression
 Helping someone as a third party: same standard as far as proportionality/self-defense goes
as if you were the person being attacked
 MPC: Relaxes imminence requirement, providing that self-defense can be available if the
actor reasonably believed that the use of defensive force was "immediately necessary"
Assessing the Imminence Requirement
Imminence in fact
o Typically assumed that strict imminence requirement defeats a self-defense claim in
non-confrontational settings
Imminence and necessity
o Why should imminence be required? Without imminence, the killing was not strictly
necessary; it is a proxy for necessity
So why should imminence and necessity be different requirements? One could say that lack of
imminences creates presumption that killing was unnecessary
o "Without aggression, there is no self-defense, only self-preference… self-defense is
uniquely justified by the fact that the defender is responding to aggression.
Imminence, far from simply establishing necessity, is conceptually tied to selfdefense by staking out the type of threats that constitute aggression."
US v. Peterson
Court: At the core of exonerating the taking of human life is the notion of self-defense. There
must be an element of necessity:
 Law of self-defense is a law of necessity
o Right arises only when necessity begins, and ends equally with necessity
 Necessity must bear all semblance of reality and appear to admit of not other alternative
before taking life will be justifiable as excusable
 Must have been a threat, actual or apparent, of the use of deadly force against the
defender in order to have the right to kill or main in self-defense
o Threat must have been unlawful and immediate
o Defender must have believed he was in imminent peril of death or serious bodily
harm, and response was necessary to save himself

Beliefs must be honestly entertained and objectively reasonable in light of
surrounding circumstances
Notes
 Typically seen as justification, because it was the right thing to do
70

Peterson says it does not need to be truly necessary, you just need to reasonably believe it
to be necessary. If it was not necessary, and the reasonable belief was mistaken, then it
seems more like a justification… nevertheless, we call it a justification
Subjectivity and Reasonableness
•
•
Reasonable person standard is objective, but at times approach is hybridized to allow
subjective considerations
Thus, what was reasonable may take into account what a reasonable person in the
defendant’s circumstances
• Issues as to which circumstances you allow to be considered
• Discussion of battered-woman’s syndrome reflects this, balance of societal
concerns about self-help with recognizing people’s varying circumstances and
realities
• Thus: Contrary to the Attorney General’s argument, we are not changing the
standard from objective to subjective, or replacing the reasonable “person”
standard with a reasonable “battered woman” standard. Our decision would not,
in another context, compel adoption of a “‘reasonable gang member’
standard.”…The jury must consider defendant’s situation and knowledge, which
makes the evidence relevant, but the ultimate question is whether a reasonable
person, not a reasonable battered woman, would believe in the need to kill to
prevent imminent harm –People v. Humphrey (Cal. 1996)
People v. Goetz
Facts: Grand Jury indicted defendant on attempted murder, assault, etc. Lower courts concluded
that charged to Grand Jury on the defense of justification was erroneous, and dismissed. We now
reverse and reinstate all counts…
LQ: Grand Juror asked what "reasonably believes" means, and the prosecutor invoked essential
the RPS: this is the basis for dismissal…
Doctrine/Reasoning: Penal Law article 35 recognizes defense of justification, which "permits
the use of force under certain circumstances. One circumstance is self-defense…
o "A person may use physical force… when and to the extent that he reasonably
believes such to be necessary from what he reasonably believes to be the use or
imminent use of unlawful physical force…"
o Limitations: "he must reasonably believe the other person is about to use deadly
force," or "he reasonable believes the other person is committing or attempting to
commit a kidnapping, forcible rape, forcible sodomy, or robbery"
Appellate Division says that because it says "he reasonably believes," it is whether the beliefs
were reasonable to him. This defies ordinary meaning of the term reasonably in the statute
o Policy: "The provisions reflect the position of its drafters that any culpability which
arises from a mistaken belief in the need to use such force should be no greater than
the culpability such a mistake would give rise to if it were made with respect to an
element of a crime"
There is still room to consider "circumstances" of the "situation," such as the relevant knowledge
the defendant had about that person, the physical attributes of everyone involved, etc.
71
Notes on Deadly Force
 Person deemed to use deadly force whenever he or she knowingly creates a substantial
risk of inflicting great bodily harm, and shooting in the direction of another person
always qualifies as use of deadly force (MPC 3.11(2))
o Even warning shots or shots fired in the air constitutes as a matter of law the use
of deadly force
o Need only be fired in the vicinity of human beings
 General rule is that any threat to inflict great bodily harm (such as threat to maim)
qualifies, even if the harm might not be life-threatening
o Under MPC, threats of kidnapping and rape are included (3.04(2)(b))
o Code addresses use of force to prevent robbery as a defense of property rather
than self-defense, and in that setting imposes stricter limits on use of deadly force
(§3.06(3)(d))
 MPC partially individualizes objective standard, as do a majority of jurisdictions, by
asking what a reasonable person would do “in the actor’s situation”
o MPC solution is to have courts and presumably juries determine in each case, on
an ad hoc basis, what circumstances count as part of defendant’s “situation”
 Some states account for unreasonable beliefs as to amount of force necessary through
various doctrines of mitigation
o e.g. “imperfect self-defense” which would characterize it as voluntary
manslaughter on the theory that “malice” is lacking
MPC
approach
is to hold someone accountable for negligent homicide who kills based on

the honest but unreasonable belief in the need to kill
Battered Women Syndrome


Is evidence of BWS relevant to whether defendant's response was reasonable? Kelly says
yes, but not because the standard is that of the reasonable battered woman
Most courts agree BWS evidence is relevant to reasonableness in a limited way
o People v Humphrey: Distinction between someone's behavior against a woman and
the expert testimony about its effects on a woman is untenable. To present the
situation as perceived by the defendant, and the reasonableness of her fear, the
defense can explain her feelings to enable the jury to overcome stereotyped
impressions… This is not objective to subjective. This is a consideration of the
defendant's situation and knowledge, which makes the evidence relevant.
o People v. Romero: If you believe defendant had greater sensitivity to danger, and
because of the sensitivity had reasonable cause to fear greater peril, you can consider
that sensitivity in determining whether the defendant acted reasonably
o State v. Edwards: "If the jury believes the defendant was suffering from battered
spouse syndrome, it must weigh the evidence in light of how an otherwise
reasonable person who is suffering from battered spouse syndrome would have
perceived and reacted in view of the prolonged history of abuse"
o State v. Leidholm: "Assume the physical and psychological properties peculiar to
the accused… and then decide whether or not the particular circumstances… were
sufficient to create a reasonable belief that the use of force was necessary"
72
State v. Kelly
Facts: Kelly stabbed her husband with a pair of scissors, after which point he died. Asserted that
she did stab her husband, but her action was in self-defense. Called Dr. Lois Vernonen as an
expert witness to testify about battered-women’s syndrome to substantiate her claim. Disputed
account of the fight leading to husband’s stabbing, but claimed that 7 years of marriage entailed
weekly arguments and attacks.
PP: Trial court ruled that expert testimony concerning the syndrome was inadmissible on the
self-defense issue. Kelly was convicted of reckless manslaughter.
LQ: Is evidence of battered-women’s syndrome admissible to support a justification of selfdefense?
Holding: Yes. Testimony admissible to show Kelly honestly believed she was in imminent
danger of death and reasonableness of her belief that she was in imminent danger of death.
Reasoning: Use of force against another in self-defense is justifiable “when the actor reasonably
believes that such force is immediately necessary for the purpose of protecting himself against
the use of unlawful force by such other person the present occasion.” Use of deadly force
necessary to protect against death or serious bodily harm. Kelly claims she stabbed her husband
in self-defense, believing he was about to kill her. Expert testimony was critical to establishing
the honesty of Kelly’s stated belief that she was in imminent danger of death, by virtue of her
experience with BWS. Expert’s testimony, if accepted by jury, would have also aided in
determining whether, under the circumstances, a reasonable person would have believed there
was imminent danger to her life.
Notes: Most courts agree that BWS evidence is relevant to reasonableness, but only in a limited
way
State v. Norman (Supreme Court of NC (1989)
Facts: Defendant tried for first degree murder of husband. Jury found defendant guilty of
voluntary manslaughter. Defendant appealed from trial court's judgment. Court of Appeals grant
new trial, citing trial court's refusal to submit a possible verdict of acquittal by reason of perfect
self-defense
LQ: Did the CoA err in granting a new trial based on the district court's failure to give an
instruction of perfect self-defense?
Holding: No. Perfect self-defense in North Carolina tends to show that at the item of the killing
it appeared to the defendant and she believed it to be necessary to kill decedent to save herself
from imminent death or great bodily harm. That belief must be reasonable, however, in that the
circumstances as they appeared to the defendant would create such a belief in the mind of a
person of ordinary firmness. In this case, there was no time frame in which defendant believed
her death to be imminent.
Dissent: Defendant is not trying to change the law, but merely claiming her situation fits within
the existing framework of self-defense. Question is one of reasonableness, not imminence, due to
ongoing and continuous abuse.
73
Theft
Generally


Nature of theft varies along two dimensions: how the item in question is acquired and what is
taken
o Modern statutes tend to consolidate means of acquisition (e.g. larceny, embezzlement,
fraud, etc.) into general theft statutes
Theft can take an array of forms: (note the use of “property” here is for simplicity)
o Larceny: The trespassory taking and carrying away of the personal property of
another with the intent to permanently deprive the possessor of the property
o Robbery: Taking the property of another by the immediate use of force or a threat of
o imminent harm
o Extortion/Blackmail: Gaining something of value from another by wrongful
coercion; typically involves the verbal or written instillation of fear that something
will happen to the victim if he does not comply with the extortionist’s will
o Fraud: Gaining something of value through intentional deception
o Misappropriation, e.g. embezzlement: Intentionally using the property or funds of
others for personal benefit or gain
Common Law
 History of theft charges begin with a concern for crimes of violence, e.g. the taking of
property by force from the passion of another (robbery) or not by force (larceny)
 Larceny: Requires a trespassory taking (taking without owner’s consent and a carrying away
(asportation)
o Robbery is larceny with use of force
 Theft by false pretenses: Involves acquiring title over property
o Consensual transfer of possession as well as title – cannot be committed by trespass
 Embezzlement: Initial, lawful possession of victim’s property, followed by its
misappropriation
Approaching Theft Problems
•
•
•
Thorough legislation has rendered the common law distinctions of theft largely academic
• Common law understandings of certain crimes remain useful in order to argue
about what a statute may reach
Questions remain as to the what, who, and how of each statute. Thus, consider:
• What: what must be taken? What word does it use, what can that word reach? Is
it just property, or something broader, like “something of value?”
• Who: who can be liable under the statute? Is it limited to a certain category of
person (i.e. an employee, an agent etc.)
• How: how does the theft have to take place?
Broad policy concerns exist about the criminalization of certain activities (like the theft
of confidential information).
• Why are we handling it through criminal law?
• Who is pushing for criminal liability?
74
•
What secondary effects might come as a result? I.e. implications for journalists,
the public etc.
Trespassory Takings
People v. Williams (Supreme Court of CA 2013)
Facts: Man arrested after trying to buy property using another man’s credit card information.
Arrested after attempting to flee.
PP: Williams is convicted of robbery. Because this is his third strike, he received a sentence of
23 years. Williams appeals, saying a "felonious taking" is limiting and that the crime of theft by
larceny is necessary to fulfill "robbery."
LQ: Can robbery be committed through theft by false pretenses?
Holding: No. Larceny requires a trespassory taking: taking without property owner's consent
Reasoning: Unlike larceny, theft by false pretenses involves acquiring title over property, not
just possession. Larceny is made a continuing offense by asportation; and because larceny is a
continuing offense, a defendant who uses force or fear in an attempt to escape with property
taken by larceny has committed robbery
Theft by false pretenses requires only: (1) False pretense or representation to owner of
property (2) With intent to defraud the owner (3) And the owner transferred property to the
defendant in reliance on the representation. Defendant clearly did not commit larceny – This is
not a felonious taking because Walmart consented to the sale of the gift cards, and therefore not
robbery.
Notes: At common law and under statutory formulations, larceny requires a trespassory taking as
well as a carrying away (asportation). Some courts have done away with asportation, saying that
movement reflected a concern that possession and control were established.
MPC: Eliminates asportation and substitutes the requirement that the defendant exercise
"unlawful control" over the property.
Topolewski v. State (Supreme Court of Wisconsin 1906)
Facts: Accused arranged with Dolan, who owed him money and was an employee of the
Plankington Packing Company, to place 3 barrels of company’s meat on the loading platform,
the plan being that accused would load the barrels onto his wagon and drive away as if he were a
customer. Dolan carried out his end of the plan after informing the company’s representatives
and receiving their instructions to feign cooperation. Accused took the barrels as planned, and
was arrested, charged, and convicted of stealing barrels of meat.
LQ: Did Dolan's agreement with the accused to place the property of the packing company on
the loading platform, where it could be a appropriated, constitute consent to such appropriate?
Holding: Yes. Element of trespass wanting.
Reasoning: Where the owner of property aids in the commission of the offense, by performing
or rendering unnecessary some act in the transaction essential to the offense, the would-be
criminal is not guilty of all elements. There is no larceny without trespass. So if you procure
property to be taken by another intending to commit larceny, the element of trespass is found
wanting, and the crime not fully consummated however plain may be the guilty trespass.
Notes: CA Penal Code: Robbery is the felonious taking of personal property in the possession of
another, from his person or immediate presence, and against his will, accomplished by means of
75
force or fear. Legislatures are free to amend technical requirements of common law larceny (e.g.
trespass).
Misappropriation
Early conception of larceny as trespassory taking from possession of owner against his will
thought to preclude conviction of persons who physically and lawfully held property of owner,
such as servants and employees
o Since they had “possession,” could not be found to be larceny
o Common law plugged gap through notion of constructive/legal possession in
employer, whereas employee only had custody
Common law larceny tried to accommodate all embezzlement scenarios (e.g. third party delivery
of goods to servant), but didn’t fit comfortably within definition, so embezzlement statutes pass
o Embezzlement: Perpetrator has lawfully possessed the property, but then has
converted it into his/her own property
o Some courts do away with lawful possession requirement and allow
embezzlement where employee has custody/control of property by virtue of
employment
Misappropriation cases involve individuals with lawful possession of property (or at least lawful
custody) – “takings with consent”
MPC approach to bailments: can be convicted of theft where recipient takes lost, mislaid, or
delivered under a mistake property with purposes to deprive owner of possession, and fails to
take reasonable measures to restore property to a person entitled to have it
o Honest, though mistaken, belief that property has been abandoned is a defense to
larceny (Morrisette)
INSIDER TRADING
 A claim usually brought under misappropriation.
 Ex: Sulfur case
o Executives of Texas Gulf sulfur found out their company just made a huge oil strike.
Executives call up their stockbrokers knowing price of stock will go up and tell them
to buy them stocks.
o Is this fraud? Embezzlement? What's the theory on which you could/would
criminalize this action?
 Embezzlement of information.
 What is embezzlement? Another form of taking with consent, but it is not
consent that is obtained through force or fear. This is: you are given property in
your capacity as a corporate employee. Then you take that property and convert
it to your own use.
 Holding: prosecuted not as extortion, but as fraud. Theory was that you owed
your stockholders a fiduciary duty and frauded them.
 Ex: Dirks case
o Big fraud in Equity Funding, a California company. Whistleblower goes to SEC and
says this company is built on accounting fraud. SEC says get lost to the
whistleblower. Whistleblower then goes to LA Times, LA Times dismisses story.
Whistleblower then calls up a stockbroker named Dirks who does an investigation
76
and realizes Whistleblower is telling truth. Dirks then tells all his clients to sell their
stocks in Equity Funding because I'm going to expose them AND THEN publishes
his news. Has Dirks committed a misappropriation?
 What would be the theory? Dirks knew this was confidential insider
information and first used it to his benefit even though he exposed them.
 Picking up on Dirks tomorrow. Question: What is the difference between
misappropriation and fraud?
Nolan v. State (Md. Court of Appeals 1957)
Facts: Defendant convicted of embezzlement. Was office manager of Federal Discount Corp., a
finance company engaged in business of making loans and collections. Took payments from cash
drawer and had accomplice change daily cash receipts to equal taking. Defendants argue was
crime of larceny and not embezzlement.
LQ: Is this larceny or embezzlement?
Holding: It's not embezzlement; reverse. Took from Federal’s possession, so crime is larceny.
Reasoning: If goods are taken from owner's possession, the crime is larceny, not embezzlement.
Here, the owner was in possession, as they were in the drawers. This is not embezzlement.
Burns v. State (Supreme Court of WI 1911)
Facts: Constable taking an insane man, Adamsky, into custody after pursuit received from
another of the pursuers a roll of money that Adamsky had thrown away in his flight. Jury
convicts constable of larceny. Jury convicted constable of larceny by bailee under a WI statute.
Court rejected that argument that a bailment was not established because there was no contract
between constable and Adamsky.
LQ: Was constable a bailee in this situation?
Holding: Yes. Had lawful possession.
Reasoning: No particular ceremony or actual meeting of minds is necessary to creation of
bailment. If one, without trespass which characterizes ordinary larceny, comes into possession of
any personalty of another and is in duty bound to exercise some degree of care to
preserve/restore/account for the property, he is a bailee. Element of lawful possession and duty to
account for thing as property of another that creates bailment.
State v. Riggins
Facts
 Defendant convicted by a jury of embezzlement and sentenced to a term of not less than
two nor more than seven years
 Defendant owned a collection agency
 Defendant called Tarrant, who operated a firm, and they agreed that the defendant would
undertake his collections
 Parties operated under an agreement, and then defendant allegedly commingled funds
collected for his clients into a bank account that he used for personal affairs
LQ: Can defendant, a collection agent, be guilty of embezzlement in IL?
Reasoning
 The law says that any person, irrespective of whether they have any claims on commission
or interest, can be punished for larceny, if they embezzle
77

Defendant acted as an agent; he had no right, however, to collect from anyone except as
authorized, and was required to render a full account
 Defendant was an agent and got money in a fiduciary capacity, so he is within the grounds
of the embezzlement statute
Dissent
 Was defendant agent?
 No; he maintained his own office, collected for 500 other individuals and firms
 He was subject to no control by his customers
 "Agent" here is used in a popular sense, and should not be construed so broadly
Fraud
Hallmark of theft by fraud is use of deception to obtain either possession or title of another’s
property.
Early common law, influenced by ethic of caveat emptor did not criminalize situations in which
a person acquired another’s property through simple deception
More far-reaching innovation came with enactment of what became protype false pretense
statute, making it a misdemeanor to obtain “money, goods, wares, or merchandises” by false
pretense with intent to cheat or defraud
Landmark case of The King v. Pear (1779) created what came to be known as “larceny by trick”
o Court relied on notion that possession does not pass to a fraudulent bailee to stretch
the concept of larceny to include an act otherwise not subject to proper criminal
sanction
When false pretense statute subsequently extended to all misrepresentations of fact, regardless of
technique of deception, there were two crimes: larceny by trick (a felony) and statutory false
pretenses (only a misdemeanor)
o Covered much of same conduct but distinguished on whether possession (larceny by
trick) or ownership (false pretenses) was transferred
Hufstetler v. State (Al. Ct. App. 1953)
Facts: Defendant drove up to a gas station and asked owner of station to fill it up. After owner
put 6 ½ gallons in car, defendant asked for a quart of oil and drove off when attendant left to get
it without paying $1.94. Accused convicted without a jury on charge of petit larceny for 6 ½
gallons of gasoline.
Issue: Can crime of larceny be sustained?
Holding and Reasoning: Yes. If person honestly receives possession of the goods, chattels, or
money of another upon any trust, expressed or implied, and, after receiving them, fraudulently
converts them of his own use, may be guilty of embezzlement, but not of larceny, except as
embezzlement is by statute made larceny. If possession of such property obtained by fraud,
owner of it intends to part with title as well as possession, the offense is that of obtaining
property by false pretenses, provided means by which acquired are as such in law false pretenses.
If possession is fraudulently obtained with intent on part of person obtaining it, at the time he
receives it, to convert the same to his own use, person parting with it intends to part with his
possession merely, not title, and offense is larceny. Logical conclusion that gas station owner had
no intention of parting with ownership of property until he received pay.
78
Graham v. US, Federal Circuit (1950)
Facts: Complaining witness, Francisco Gal, consulted appellant in professional capacity as
attorney. Gal had been arrested, charged with disorderly conduct, and forfeited $25 as collateral.
Was seeking American citizenship and didn’t want arrest to impede/bar attainment. Testified that
Graham told him he wasn’t sure what he could do, and Graham would “have to talk to the
policeman” and Graham had to pay money for that. Graham told him he would charge $200 for a
fee, an additional $2,000 for the police, and not to tell anyone. Gal testified he paid in full on
February 2-3, 1950.
Issue: Is one who obtains money from another upon the representation that he will perform
certain services for the latter, intending at the time to convert the money and actually converting
it to his own use, guilty of larceny?
Holding and Reasoning: If jury believed Gal’s testimony, could have found him guilty of
larceny by trick. Interpreting statute for theft, court has held that “one who obtains money from
another upon the representation that he will perform certain service therewith for the latter,
intending at the time to convert the money and actually converting it to his own use, is guilty of
larceny.
People v. Ashley (Supreme Court of CA 1954)
Facts: Ashley obtained a loan of $7.2K from elderly woman, Mrs. Russ, by promising the loan
would be secured by a first mortgage on property owned by the corporation and that the money
would be used to build a theater. Corp. in fact leased but did not own the property and no theater
was ever built. Money used to meet corporation’s operating expenses. After Ashley received the
money, Mrs. Russ quarreled with him over failure to deliver promised first mortgage. After it
became apparently loan would not be paid, Ashley requested an extension. Russ granted the
extension after Ashley threatened to kill himself if she refused, so that she might be paid from
proceeds of his life insurance. Ashley also obtained $13,590 from Mrs. Neal, representing that
corporation intended to use the money to buy a theater and loan would be secured by a trust deed
on theater, and that she would have good security for her loan because corp. was worth a half
million dollars. Loaned the corp. an additional $4,470, and when she hesitated in making
additional loan, Ashley placed a gun on his desk in an apparent threat. Defendant contends there
was no unlawful taking.
Issue: Can theft by false pretense be based upon a false promise?
Holding and Reasoning: Yes, if mentality at time of promise was criminal. Obtaining property
by false pretenses is the fraudulent or deceitful acquisition of both title and possession. To
support a false pretenses charge, it must be shown that the defendant made a false pretense or
representation with the intent to defraud an owner of his property and that the owner was in fact
defrauded. It is not necessary to prove that the defendant personally benefitted from the
fraudulent acquisition, but the circumstances surrounding the false statement must affect the
present and not some promise to act in the future. If the defendant’s conviction of false pretenses
rests primarily on the testimony of a single witness, the making of the pretense must be
corroborated. Here, each of the women who provided money intended to pass both title and
possession.
Concurrence (Schauer): Should be extended to future promises as well.
79
Nelson v. US (Federal Circuit 1955)
Facts: Nelson’s account was overdue to Potomac Distributors. Put up his car as chattel
mortgage, but didn’t mention its outstanding indebtedness to bank, alleging he only owed one
payment. Nelson then left town, and his car was damaged in a collision, incurring expensive
damages and being repossessed by the bank. Nelson argues that Potomac Distributors could not
have been defrauded for the car because it had an equity between $9900 and $1,000. Trial court
entered judgment of acquittal on second count charging grand larceny and upheld charge for
obtaining goods by false pretenses.
Issue: Is specific intent to defraud required to uphold a charge of obtaining goods by false
pretenses?
Holding and Reasoning: No, intent can be presumed. Argues there was no proof of intent to
defraud, but wrongful acts knowingly or intentionally committed can neither be justified nor
excused on ground of innocent intent. Intent to injure or defraud presumed when unlawful act,
which results in loss or injury, is proved to have been knowingly committed.
Dissent (Miller, J.): Nelson did make a false representation, but the question is whether there
was evidence from which the jury could properly be permitted to infer that he intended to
defraud, and to conclude that Potomac was thereby defrauded. A purchaser can be said to have
defrauded the seller of his goods only if he intended to defraud him of the purchase price for
which the seller was willing to exchange them. Nelson was only charged with defrauding
through false pretenses the articles then delivered, which had a total value of only $349.50.
Mail Fraud Statute
"Whoever, having devised or intending to devise any scheme or artifice to defraud, or for
obtaining money or property by means of false or fraudulent pretenses, representations, or
promises, ... for the purpose of executing such scheme or artifice, or attempting to do so, [mails a
letter or uses an interstate express carrier] ... shall be imprisoned not more than 20 years."




Rakoff interested in what the mens rea and actus reus elements are here
This is an inchoate offense, like in conspiracy. Here, just one person needs to have this
potential thought in their head, even if it isn't fully formed…. The act, therefore, is just to
mail the letter
"scheme or artifice to defraud" could mean getting something other than money or
property, could encapsulate something intangible
At common law, fraud consists of a false affirmative statement of a present fact made for
the purpose of obtaining money or property. Here, promises, pretenses, and representations
are also encapsulated
Blackmail
State v. Harrington
Facts: Harrington an attorney retained by Norma Morin to obtain a divorce from her husband,
Armand Morin.. Harrington and Norma hired a woman armed with a tape recorder, to entice
Armand into having sex in one of his motel rooms. The woman succeeded and at the opportune
moment, Harrington and his associates entered the hotel room and took pictures of the naked pair
80
in bed. Tried to induce Armand into dividing assets by threatening to release photo. Convicted
under a Vermont blackmail law which stated, “a person who maliciously threatens to accuse
another of a crime or offense, or with an injury to his person or property, with intent to extort
money or other pecuniary advantage, or with intent to compel the person so threatened to
do an act against his will…”
Issue: If made with intent to extort payment, does a demand for settlement of a civil action,
accompanied by a malicious threat to expose a wrongdoer’s criminal conduct, against his will,
constitute blackmail?
Holding and Reasoning: Yes. In State v. Louanis, 65 A. 532 (Vt. 1907) the court said, referring
to the state’s blackmail statute, that a threat of any public accusations is as much within the
reason of the statute as a threat of a formal complaint.” Here, Harrington’s letter, marked
“personal and confidential,” makes a private accusation of adultery in support of a demand for a
cash settlement. Harrington included an incriminating photo with the letter for the purpose of
demonstrating to him that they had “…all the proof necessary to prove adultery.” According to
the letter, cost of refusal would be public exposure of incriminating conduct in the courts of New
Hampshire where the illicit act took place.
One of the advantages tendered to Morin for a “quiet” and “undamaging” divorce is an
“absolute undertaking” on the part of Harrington’s client not to inform against him in any way to
the Internal Revenue Service, U.S. Customs Service and other agencies. Such veiled threats
exceeded the limits of Harrington’s representation of Norma in her divorce and provided a
sufficient example of his malicious intent. The evidence is clear that Harrington performed his
acts of hiring a woman to have sexual relations with Armand, taking illicit photos, and then
writing a threatening letter to him with purpose and design. Such is proof sufficient to sustain a
finding that he acted maliciously and without just cause.
People v. Fichtner
Facts: Fichtner (defendant), the manager of the Hill Supermarket in Nassau County, New York,
along with McGuinness (defendant), the store’s assistant manager, witnessed a customer, Smith,
leave the store with a canister of coffee without having paid for it. After immediately
confronting Smith, Fichtner informed him that he was going to call the police and have him
arrested unless Smith paid $75 and signed a statement indicating that he had unlawfully taken
items from the store without paying for them during the course of several months totaling that
amount. Smith insisted that he had never stolen items totaling that amount, but eventually
signed the statement admitting he had taken $50 worth of merchandise over a four-month
period. That evening, Smith paid the two men $25 in cash and promised to pay $5 in weekly
installments thereafter. Subsequently, Fichtner and McGuinness were charged with two counts of
extortion. At trial, Smith testified that he was induced to sign the statement and make the
payments because Fichtner and McGuinness (collectively “defendants”) threatened to accuse
him of petit larceny and expose him in the public newspapers. The defendants argued that the
$25 received from Smith was for the benefit of the store and its owner, not to them personally.
Defendants testified that over the course of several weeks they saw Smith steal things amounting
to $5.61 and they honestly believed that during that time he had been shopping, he had stolen
merchandise worth $75. Fichtner and McGuinness were found guilty of extortion and they
appealed.
Issue: Is an individual guilty of extortion when he obtains property from another person, with his
consent, by inducing fear of criminal prosecution or causing some other form of disgrace?
81
Holding and Reasoning (Johnston, J.): Yes. New York’s extortion statute states that it is the
obtaining of property from another, with his consent, induced by a wrongful use of fear.
Moreover, fear may be induced by an oral or written threat to accuse an individual or his family
of a crime or to cause him disgrace.
Here, the evidence is sufficient to support the convictions. The defendants claim that it was in
error for the trial judge to refuse to give the jury its instruction which stated, “[i]f in the judgment
of the jury the defendants honestly believed that the amount which [Smith] paid or agreed to pay
represented the approximate amount of the merchandise which he…had previously stolen from
the Hill Supermarket, then the defendants must be acquitted.”
However, the trial court properly instructed the jury concerning the law of extortion in the state,
i.e., that extortion is committed when one obtains property from another by inducing fear in that
person by threatening to accuse him of committing a crime unless he pays an amount over and
above what was rightfully due. The extortion statutes were intended to prevent the collection
of money through the use of fear induced by means of threats to accuse a debtor of a crime;
it makes no difference whether the debtor stole any goods, nor how much he stole. The
defendants’ claim that they honestly believed Smith had stolen $50 worth of merchandise and
that they were merely collecting what was owed to their employer may not be used as a defense
to extortion. The law does not authorize the collection of debts by threatening to accuse the
debtor of crime, even if the debtor is in fact guilty of the crime or some other unrelated crime.
The judgments of conviction are affirmed.
Dissent (Wenzel, J.):If defendants acted without malice and in good faith and made an honest
mistake as to the amount owed by Smith to be re-paid, then they should not be found guilty of
extortion. In such an instance, Fichtner and McGuinness had no criminal intent. In fact,
they were not acting for any personal benefit, but rather, the benefit of their employer in
recovering what they honestly believed was owed to the store
Consolidation



Procedural issue: if you prove that your particular kind of theft constituted a different kind
of theft, you can obtain a reversal through appeal
This is a constant threat to the efficient administration of justice
Principal means of reform is to consolidate the variety of common-law forms of wrongful
acquisition of another's property into one single crime, which might be called "theft" or
"larceny" and to deprive of any legal significance the difference in modes of acquisition
Property Subject to Theft
Traditional property: has to be a tangible item (State v. Miller, OR 1951)
Services: Circuits differ on question of whether services can be considered property
o MPC defines it as theft of services (MPC § 223.7)
Information: Generally information not subject to theft unless explicitly mentioned in statute,
although statutes re government property often interpreted broadly to include information
(United States v. Girard, 2nd Cir. 1979)
 Honest Services: federal mail fraud statute prevents use of US mail system to deprive
citizens of their right to honest services – interpreted by courts to demand a showing of
some risk of economic harm to the party to whom duty of honest services was owed in
private sector (Skilling v. United States, SCOTUS 2010)
82
State v. Miller (Supreme Court of OR 1951) (TRADITIONAL THEFT)
Facts: Miller (defendant) induced the Hub Lumber Company (Hub) to pay Miller’s debt owed to
the Howard Cooper Corporation (Howard Cooper) for a tractor which Miller had represented to
Hub was owned free and clear of any encumbrance and upon executing a chattel mortgage
thereto as security. Miller was actually purchasing the tractor under a conditional sales contract.
Miller was found guilty of obtaining property by false pretenses and he appealed.
Issue: Did the defendant obtain “any property” from Hub Lumber Company?
Holding and Reasoning: No. Indictment essentially means that by false pretenses the defendant
induced the Hub Lumber Company to agree to pay his indebtedness to the Howard Cooper
Corporation if he should fail to pay it. Source of false pretenses statute is common law and
statute law of England. English courts hold that the thing obtained must be the subject of larceny
at common law. OR statute is not as broad as those in some other states, and reads “any money
or property whatsoever.” This court has recognized that “property” under the statute must be
something capable of being possessed and the title to which can be transferred. Benefit of a
guaranty could not be possessed, and there could be no such thing as holding title to it.
US v. Girard (2nd Cir. 1979) (THEFT OF INFORMATION)
Facts: In May 1977, appellant Lambert was an agent of DEA and Girard was a former agent.
During that month, Girard and one James Bond began to discuss proposed illegal venture
involving smuggling weed from MX to US. Girard told Bond that for $500 per name, he could
secure reports from the DEA files from an inside source that would show whether any participant
in the proposed operation was a government informant. Bond became an informant and disclosed
conversations with Girard to DEA. Bond asked Girard to secure reports on 4 men whose names
were furnished by DEA agents. DEA records kept in computerized files, and DEA hoped to
identify inside source by monitoring access to the 4 name. Inside source identified as Lambert,
who obtained reports through computer in his office. Convictions are based on sale of this
information. Defendants convicted of unauthorized sale of government property and of
conspiring to accomplish the sale.
Issue: Although the sale of information is an intangible, does it nevertheless qualify as a “thing
of value” under 18 U.S.C. § 641, which prohibits the sale of any U.S. government record with
intent to convert it to personal use?
Holding and Reasoning: Yes. 18 USC § 641 provides that whoever without authority sells any
“record…or thing of value” of the US or who “receives the same with intent to convert it to his
use or gain, knowing it to have been embezzled, stolen, purloined, or converted” shall be guilty
of a crime. Appellants contend the statute covers only tangible property or documents and
therefore is not violated by sale of this information. The word “thing” is generally construed to
cover intangibles as well as tangibles. Existence of property in contents of unpublished writing
judicially recognized long before advent of copyright laws. Government has a property interest
in certain of its private records, which it may protect by statute as thing of value.
Notes: Government property theory of information would give country in essence an Official
Secrets Act. Intellectual property theft has become a vexing problem for courts.
Regina v. Stewart (Supreme Court of Canada 1988) (THEFT OF INFORMATION)
Facts: Union attempting to organize approx. 600 hotel workers was unable to obtain their names,
addresses and telephone numbers because of a hotel policy. Wayne John Stewart, a selfemployed consultant, was hired by somebody he assumed to be acting for the union to obtain the
information. Stewart offered a security guard money to obtain the information, which the
83
security guard reported. Stewart was charged with theft, defined in § 2883 as the taking of
“anything whether animate or inanimate” with the required intention.
Issue: Does “anything” in the code include identifying information?
Holding and Reasoning: No. Treating confidential information as property for the purposes of
the awl of theft would create a host of practical problems. Choices rest upon political judgments
that are matters of legislative action.To be the object of theft, “anything” must be property in the
sense that to be stolen, it has to belong in some way to someone.
Skilling v. US (SCOTUS 2010) (THEFT OF HONEST SERVICES)
Facts: Following Enron’s plummeting stock, government investigation uncovered elaborate
conspiracy to prop up Enron’s short-run stock prices by overstating the company’s financial
well-being. Government prosecuted dozens of Enron employees who participated in the scheme,
eventually indicted Skilling, the former CEO, in July 2004. Count 1 of the indictment charged
Skilling with conspiracy to commit securities and wire fraud, “depriving Enron and its
shareholders of intangible right of honest services.” Further charged Skilling with more than 25
substantive counts of securities fraud, wire fraud, making false representations to Enron’s
auditors, and insider trading.
Issue: Was Skilling’s conspiracy conviction under § 1346 premised on an improper theory of
honest-services wire fraud?
Holding and Reasoning: Yes. Honest-services fraud is limited to kickbacks and bribes. Court of
Appeals interpreted term “scheme or artifice to defraud” to include deprivations not only of
money or property, but intangible rights as well. By 1982, all Courts of Appeals had embraced
honest-services theory of fraud in public and private contexts. Court believes that § 1346 should
be construed rather than invalidated. No doubt that Congress intended § 1346 to refer to and
incorporate the honest-services doctrine recognized in the Court of Appeals’ decisions before
McNally derailed the intangible-rights theory of fraud. Skilling’s vagueness challenge has force,
however, for honest-services decisions preceding McNally were not necessarily clear or
consistent. Vast majority of honest-services cases involved offenders who, in violation of a
fiduciary duty, participated in bribery or kickback schemes. In view of this history, no doubt that
Congress intended § 1346 to reach at least bribes and kickbacks.
Reading the statue to proscribe a wider range of offensive conduct would raise the due
process concerns underlying the vagueness doctrine. To preserve the statute without
transgressing constitutional limitations, now hold that § 1346 criminalizes only the bribeand-kickback core of the pre-McNally case law. Not persuaded that pre-McNally conflict-ofinterest cases constitute core applications of the honest-services doctrine. Courts of Appeals
reached no consensus on which schemes of nondisclosure and concealment of material
information qualified under the honest-services doctrine.
Concurrence (Scalia): Honest-services doctrine is not confined to “bribes or kickbacks.” Court
does not resolve issue of the character of “fiduciary capacity” to which the bribery and kickback
restrictions applies – i.e. public and private.
84
Corporate Criminal Liability
General
When can you hold a corporation liable? When enforcing against an individual could not be
effectively enforced (Hilton Hotels)
Major concerns in liability of corporations
Special group crime occurs within context of corporations, which raises three main problems:
1) When company should be punished as a supplement or substitute for punishment of
individual actors
 Also involves legal criteria for determining which actions, of which
employees and officials, render the corporation criminally liable
2) How to punish an organization
 Imprisonment not an option – if fines are main weapon, does that sufficiently
distinguish criminal from civil penalties?
3) Personal criminal liability of individual employees and officials who act for the
corporation
 Lesser employees present no special issue – normal legal doctrines of personal
and accomplice liability suffice
 Difficulty concerns individual liability of high officials, who arguably should
sometimes be accountable for actions of lower-echelon employees
Functions of Corporate Criminal Liability
 Expressive: Expresses disapproval of conduct outside the bounds of acceptable behavior. If
we do not hold corporations liable, we tell law-abiding corporations that their behavior
matters less, and weaken legal obligations to society. We should not subsidize bad behavior.
o Counter: Expressive view is not sensible; we would not attribute blame to a dagger
 Instrumental: Provides incentives for manages to patrol low-ranking officers and create a
law-abiding corporate culture
o Counter: Instrumental view is mistaken about the cost/benefit analysis; we don't want
to promote money-wasting expenditures and high litigation costs
 Cons: Criminal punishment of corporations has collateral consequences, punishing the
innocent and shareholders
Liability of Corporate Entity
Respondeat superior Approach
 A corporation can act only through its agents, so in theory, a corporation could commit any
act than an individual could commit, as long as agent acts within cope of his or her
employment and with intent to benefit corporation
 A corporation can be held criminally liable for acts of agents if agent:
1. Commits a crime
o Must be proved that illegal act committed by agent of corporation, and agent acted
with specific intent required by governing statute
2. Within the scope of employment
85
o

Traditional agency definition limits scope of employment to conduct that is
authorized by principal or similar/incidental to authorized conduct
 However, courts generally find all conduct within scope of employment as
long as act occurred while offending employee was carrying out a jobrelated activity
3. With intent to benefit the corporation
a. Corporation may be held criminally liable even if it received no actual benefit
from offense, although existence or absence of benefit is relevant as evidence of
an intent to benefit
4. [Ratification works to endow liability: approval of the act by a supervisor can be used
to meet requirements of scope of employment and intent to benefit corporation]
When respondeat superior underinclusive, courts have developed doctrine of “collective
knowledge”
o Enables courts to find liability in cases in which corporation seems “justly to blame”
for crime, but no single individual has required mens rea
o Permits finding of corporate mens rea to be derived from collective knowledge of
corporation’s members
MPC/“Higher Up” Approach
 Tries to cut back on traditional scope of respondeat superior
 Narrows liability by providing defense of due diligence: if high managerial agent having
supervisory responsibility over the subject matter employed due diligence to prevent its
commission, corp. is exonerated
 Corp. also incurs liability for true crimes, i.e. those in the Code, only if conduct constituting
offense is authorized, commanded, solicited, performed, or recklessly tolerated by board of
directors or “high managerial agent”
 MPC § 2.07
1) A corporation may be convicted of the commission of an offense if:
(a) the offense is a violation or the offense is defined by a statute other than the
Code in which a legislative purpose to impose liability on corporations plainly appears
and the conduct is performed by an agent of the corporation acting in behalf of the
corporation within the scope of his office or employment, except that if the law defining
the offense designates the agents for whose conduct the corporation is accountable or the
circumstances under which it is accountable, such provisions shall apply; or
(b) the offense consists of an omission to discharge a specific duty of affirmative
performance imposed on corporations by law; or
(c) the commission of the offense was authorized, requested, commanded,
performed or recklessly tolerated by the board of directors or by a high managerial
agent acting in behalf of the corporation within the scope of his office or employment.
Tools of Prosecutors
 Prosecutorial discretion: prosecutors may choose not to prosecute company and limit
breadth of respondeat superior
86




DPAs (deferred prosecution agreements) and NPAs (non-prosecution agreements) are used
as tools when prosecuting corporations
o Pursuant to these agreements, government agrees not to prosecute the company in
exchange for corporate concessions and cooperation
o
NPAs: government does not file charges in court but retains right to prosecute later if
company does not meet terms of the agreement
o DPAs: charges are filed, but once company fulfills terms of agreement, government
dismisses the charges
Pros: Government can obtain fines and concessions without subjecting company to
collateral consequences of convictions, e.g. losing a license necessary to stay in business
Cons: Undermines policies of collateral penalties and fair and even-handed administration
of criminal justice
Relevant in deciding when to prosecute:
o When they believe corporation itself is primary victim of the offense
o Pervasiveness of wrongdoing within corporation, including complicity in or
condonation of wrongdoing by corporate management
o Collateral consequences, including disproportionate harm to shareholders and
employees not proven personal culpable
o Adequacy of non-criminal remedies, such as civil or regulatory enforcement
actions
NY Central v. United States (SCOTUS 1909)
Facts: Federal Elkins Act of 1903 required common carriers e.g. railroads to post rates and
forbade them from charging less than posted rates. In this case, both railroad company and one of
its employees, assistant traffic manager, convicted for paying rebates to certain companies who
shipped products with them, effectively lowering shipping rate in violation of the Elkins Act.
LQ: Is it unconstitutional to impute to a corporation the commission of criminal offenses, or to
subject a corporation to criminal prosecution by reason of actions of its employee?
Holding: No. See no valid objection in law why the corporation, which profits by the
transaction, and can only act through its agents and officers, shall be held punishable by fine
because of the knowledge and intent of its agents to whom it has entrusted authority to act in
making/fixing rates of transportation, and whose knowledge and purposes may be attributed to
corporation for which agents act.
Reasoning: Argument is that punishing corporation in reality punishes innocent stockholders,
depriving them of property without opportunity to be heard, without DP of law. Some earlier
writers on common law held the law to be that a corporation could not commit a crime. Modern
authority is universally the opposite. Since a corporation acts by its officers and agents, their
purposes, motives, and intent are just as much those of the corporation as are the things done.
Tort law already embraces theory of respondeat superior, imputing liability because the act is
done for the benefit of the principal. There are some crimes which cannot be committed by
corporations, but offenses such as rebating under the Federal statutes is one, wherein crime
consists in purposely doing things prohibited by statute.
United States v. Hilton Hotels Corp. (9th Cir 1972)
Facts: Appeal from a conviction under the Sherman Act. Operators of hotels, restaurants, and
supply companies organized an association to attract conventions to Portland. To finance,
87
members were asked to make contributions in predetermined amounts. Hotel members agreed to
give preferential treatment to suppliers who paid their assessments, and curtail purchases from
those who did not. Sherman Antitrust Act prohibits all combinations in restraint of trade. Alleged
boycott by hotel members of suppliers to refused to pay assessments, if proved, would constitute
per se violation of Sherman Act.
Hilton Hotels argued it could not be liable because it had not authorized acts of hotel’s
purchasing agent who participated in boycott, president of Hilton Hotels testified that actions
were contrary to policy of corporation, and manager of Portland hotel and assistant testified that
it was hotel’s policy to purchase goods solely on basis of price, quality, and service, and they had
twice told purchasing agent not to take part in boycott.
LQ: Can liability be imposed upon business entity for acts or omissions of agents within the
scope of their employment, even though it may have been contrary to express instructions?
Holding: Yes. Such liability may attach without proof that conduct was within agent’s actual
authority, and even though contrary to express instruction.
Reasoning: Construction of Act that best achieves its purposes is that a corporation is liable for
acts of its agents within the scope of their authority even when done against company orders.
Complex business structures, characterized by decentralization and delegation of authority,
commonly adopted by corporations for business purposes, make it difficult to identify the
particular corporate agents responsible for Sherman Act violations. Violations of Sherman Act
are a likely consequence of the pressure to maximize profits that is commonly imposed by
corporate owners upon managing agents, and in turn, upon lesser employees. If a violation
occurs, the corporation, and not the individual agents, will have realized profits from illegal
activity. Appellant could not gain exculpation by issuing general instructions without
undertaking to enforce those instructions by means commensurate with obvious risks.
Commonwealth v. Beneficial Finance (Supreme Court of MA 1971)
Facts: Individual and corporate defendants, including Beneficial Finance Co., were convicted of
bribing, and conspiring to bribe, state banking officials in order to obtain favorable treatment
from the state Small Loans Regulatory Board. Corporate convictions based on acts committed by
employees who were neither officers nor directors of the corporation. Defendants and
Commonwealth have proposed differing standards upon which criminal responsibility of
corporation should be predicated:
 Defendants: a corporation should not be held criminally liable for the conduct of its
servants or agents unless the conduct was authorized or tolerated by directors or officers
with "high managerial agency"
o Reflects the MPC 2.07
 Plaintiffs: Affirm the judge’s directions, which indicated that you just need to prove the
individual whose conduct it seeks to charge the corporation criminally for was placed in a
position by the corporation where he had enough power, duty, responsibility and authority
to act for and in behalf of the corporation to handle the particular business of the
corporation in which he was engaged at the time
Legal Question: Can employees acting alone impute corporate liability? Do higher ups of
corporation need to endorse such action?
Holding: Yes and no. Any employee acting in their official capacity for the benefit of the
corporation can impute liability.
Reasoning: Court analyzed a long line of MA cases which show that before criminal
88
responsibility can be imposed on master under doctrine of respondeat superior, actual
participation in, or approval of, the servant’s criminal act must be shown. Nature of a corporation
as a “person” precludes equating human principal with corporate principal. Question is rather
whether acts and intent of natural persons can be treated as those of the corporation itself.
Unconvinced that standard for imposing criminal responsibility on a human principal adequately
deals with evidentiary problems which are inherent in ascribing acts of individuals to corporate
entity. In this case for example, employee would be unlikely to pay $25k out of his own pocket
for bribes, so jury would be warranted in finding that disbursal of such amount of money came
out of corporate treasury as a matter of corporate policy and reflection of corporate intent.
Evidence of authorization or ratification is easily susceptible of concealment.
State v. Community Alternatives Missouri (Mo. Ct. App. 2008)
Facts: Corporation operating a group home facility charged with resident neglect after a resident
of the home died as a result of medical complications from untreated bedsores. Resident neglect
is a crime in MO defined in relevant part as knowingly failing to provide reasonable and
necessary medical care. Defendant corp. operated more than 30 group homes. In order to uphold
liability against corporation under state law, Collura has to be a “high managerial agent,” defined
as “an officer of a corporation or any other agent in a position of comparable authority with
respect to the supervision in a managerial capacity of subordinate employees.” Corporation
argued that Collura was not a high managerial agent because she was a low-level employee in
overall structure of sprawling company.
LQ: Is Mary Collura a "high managerial agent" such that her actions can be imputed to
Community Alternatives under MO state law?
Holding: Yes. Court does not perceive the legislative intent to have been to treat large
corporations with numerous operating units different from those that operate a single or a few
business units.
Reasoning: Mary Collura managed and supervised the employees responsible for provided care
and determined what medical care would be afforded pursuant to business structure prescribed
by defendant. She was defendant’s lead staff person at Turtle Creek, and only manager who was
regularly present at Turtle Creek.
Concurrence: Corporations range from one man shows to multinational enterprises with
thousands of locations. Flexibility in modern corporate laws enable branch managers to exercise
authority comparable to that of a corporate officer. To the extent that a corporation authorized or
permitted managers to so act, it would seem appropriate to impute corporate criminal
responsibility arising from those actions…
Punishing the Corporate Entity: The Problem of Sanction
Methods of Punishment
 Fines
o Fines is the most obvious corporate sanction, but there is the issue of spillover effects
o Weak fines, however, don't provide necessary deterrence
o Substantial fines usually don't deter individual employees from wrongdoing when
their person interests do not align with organization's interests
 Compliance programs
89
o


Federal Sentencing Guidelines take a carrot approach, offering sentencing reductions
for companies that establish such programs
o Keeping one in place can diminish punishment in the event of future violations – DOJ
takes into account whether an organization has a compliance program in deciding
whether to file criminal charges
DPAs and NPAs
o Prosecutors like to use these instead of charging corporations….
o Although precise terms of these agreements vary, prosecutors often demand that
companies adopt compliance programs policed by independent monitors, pay fines
and restitution, cooperate with investigations against employees, make personnel
changes, and alter business practices
Corporate Death Penalty
o Most companies survive criminal charges, but some don't because they rely on
government contracts
o Die because of reliance on government contracts and conviction means
disqualification, they lose a necessary license or permit, or adverse publicity is too
great a reputational hit
o Some DPAs are negotiated because of concern that formal charges will “kill” the
company
US v. Guidant (USDC MN 2010)
Facts: Guidant entered pleas of guilty on two misdemeanor counts. Guidant developed,
manufactured, and sold implantable cardioverter defibrillators, which are medical devices
implanted to treat abnormal heart rhythms. Two of their models had a defect that could cause
short-circuiting, rendering device nonfunctional. Guidant discovered and later fixed the defects,
but did not notify the FDA in the time and manner required by law.
PP: Guidant agreed to a plea agreement with the government whereby it would plead guilty to
two misdemeanor counts: 1) making materially false and misleading statements on reports
required to be filed with FDA and 2) failing to promptly notify the FDA of a medical device
correction. Plea agreement further recommended court impose sentence requiring Guidant to pay
criminal fine of $253m and a criminal forfeiture of $42m. Parties in the agreement jointly agreed
not to include a provision that ordered restitution or probation.
LQ: Does the plea agreement sufficiently hold Guidant accountable?
Holding: No. There should be a probation term in the agreement.
Reasoning: In addition to the alleged victims, Drs. Hauser and Maron urge court to reject any
plea agreement that does not contain a probation provision. Court respectfully disagrees with
Government’s view that probation would be a waste of taxpayers’ money, especially given that
Guidant could be required, as a condition of probation, to reimburse Government. Court also
disagrees that Guidant’s current corporate structure renders any probation meaningless. Interests
of justice are not served by allowing a company to avoid probation simply by changing corporate
firm (Boston Scientific acquired Guidant after the events in question). And Court believes period
of probation would likely benefit, rather than harm, Guidant’s and Boston Scientific’s public
image.
90
Liability of Corporate Agents
•
•
•
Corporate agents may be criminally liable for the acts they took that now are imparted to the
corporation but also for the actions of those below them
• Two parts then:
• A person is legally accountable for any conduct they perform or causes to be
performed in the name of a corporation or an unincorporated associated or in
its behalf to the same extent as if they did it on their own behalf.
• Further, when a duty is imposed by law on a corporation, any agent with duty
to discharge that duty is legally accountable as if law imposed burden directly
on them.
Two Approaches Here As Well:
• Imputation of criminal liability from below: Your agents did the thing, had the guilty
mind, and you’re responsible for them and we believe that you knew (Gordon)
• Strict Liability for Acts Below: You had a responsibility to address the thing, so we
hold you liable (Park)
Not every court is comfortable with this: MacDonald, want actual knowledge about basis for
criminal liability
MPC § 2.07(6)
(a) A person is legally accountable for any conduct he performs or causes to be performed in the
name of the corporation or an unincorporated association or in its behalf to the same extent as it
were performed in his own name or behalf
(b) whenever a duty to act is imposed by law upon a corporation or an unincorporated
association, any agent of the corporation or association having primary responsibility for the
discharge of the duty is legally accountable for reckless omission to perform the required act to
the same extent as if the duty were imposed by law directly upon himself
Gordon v. US (10th Cir. 1954) (REVERSED BY SCOTUS)
Facts: Defendant partners in a sewing machine and appliance business were convicted of
violating the Defense Production Act by selling sewing machines on credit terms prohibited by
that act and regulations issued thereunder. Case was not submitted to the jury on the question
whether the partners had actual notice of the transactions; instead, it was submitted on the theory
that knowledge of one partner was imputable to the other, and that the knowledge of the
salespeople were imputable to the employing partners
Legal Question: Whether partners can be held criminally responsible for the knowledge and acts
of their agents and employees, who the evidence shows, while acting in the course of their
employment, actually made the sales without having collected the down payment…
Holding: Yes [overturned by SCOTUS]. Knowledge is not direct, but constructive.
Reasoning: Willfulness is specifically made a prerequisite to guilt in this context, and court
charged employers with guilty knowledge and acts of employees in determining question of
willfulness. Effect of this is not to dispense with willfulness or guilty knowledge as an element
of the offense, but to charge the employer with knowledge of records he is required to keep and
acts he is required or forbidden to do, and which he necessarily keeps, does, or omits to do by
and through his agents and employees.
91
Dissent: Partners denied intent to violate law or any knowledge that their employees were
violating it. They were entitled to have jury told they were not criminally liable for acts of their
employees, although committed within the scope of their employment, unless they directed such
activities or had guilty knowledge thereof.
Notes: This type of respondeat superior reasoning can hold a corporation liable, as corporation
only acts through its agents, but not individuals liable.
United States v. Park (SCOTUS 1975)
Facts: Acme Markets, national retail food chain with lots of locations and warehouses and
employees. Government charged Acme and Park with violations of FDCA. Food in Acme's
Baltimore warehouse contaminated by rodents. Acme pleaded guilty, Park pleaded not guilty.
Evidence demonstrated that in April 1970 the FDA advised respondent by letter of insanitary
conditions in Philly warehouse; in 1971, they found similar conditions in Baltimore. Park, a
president and CEO, delegated normal duties including sanitation. He supposedly took some sort
of action in ensuring that a division VP would oversee the improvements of the facility.
PP: Jury found him guilty on all counts. Court of Appeals reversed, saying the findings could be
made upon a showing only that respondent was President of the corporation, and without an act
of commission or omission
Legal Question: Were the jury instructions, which provided that respondent could be found
liable if he was "responsible" for the sanitary functions, fair?
Holding: Yes. The FDCA imposes not only a positive duty to seek out and remedy violations
when they occur but also, and primarily, a duty to implement measures that will ensure
violations will not occur.
Reasoning: Dotterweich provides helpful precedent
 Manager of a corporation found strictly liable… since the products touch the lives of so
many people, and the only way a corporation can act is through its agents
 The Act imposes a positive duty to seek out and remedy violations, and a duty to
implement measures to insure that violations will not occur
 The Act does not make criminal liability turn on awareness of some wrongdoing or
conscious fraud… that being said, the Act does not require that which is objectively
impossible
It was not necessary to instruct the jury that the Government had the burden of establishing
"wrongful action" as the Court of Appeals thinks. The Government establishes a prima facie case
when it introduces evidence sufficient to warrant a finding by the trier of the facts that the
defendant had, by reason of his position in the corporation, responsibility and authority either to
prevent in the first instance, or promptly to correct, the violation complained of, and that he
failed to do so
Dissent: The jury instructions are not consistent with the law as the Court expounds it.
Prosecution must at least show that by reason of an individual's corporate position and
responsibilities, he had a duty to use care to maintain the physical integrity of the corporation's
food products. Jury can then infer that when food is in a bad condition, it was caused by a breach
of the standard. Basically a negligence standard. The jury instructions said Park would be guilty
if "found beyond a reasonable doubt that Park had a responsible relation to the situation…" This
is a tautology. A jury needs to find evidence beyond a reasonable doubt that he engaged in
wrongful conduct amounting at least to common law negligence.
92
Notes: Responsible corporate officer doctrine: government must introduce evidence
demonstrating that defendant had, by reason of his position in the corporation, responsibility and
authority either to prevent in the first instance, or promptly to correct, the violation complained
of, and that he failed to do so. Federal courts rarely actually find that the defendant was
powerless to correct the violation; one interpretation is that it is a question of literal power
parameters. The other interpretation is that it is satisfied by evidence that the officer showed
extraordinary care.
US v. MacDonald Waste Oil (1st Cir. 1991)
Facts: Defendant operated disposal facility at Poe Street Lot, facility leased from Narragansett
Improvement Company (NIC). Neither MacDonald nor NIC held a permit authorizing them to
dispose of solid hazardous wastes in that site, although NIC did have a permit to dispose of
liquid wastes there. MacDonald was hired to remove solid waste from grounds of Master
Chemical Company. An employee of MacDonald supervised transportation of contaminated soil
from Master Chemical to Poe Street Lot. Eugene K. D’Allesandro, president of MacDonald
subsequently convicted of knowingly transporting and causing the transportation of hazardous
waste to a facility that did not have a permit.
PP: RCRA 3008(d)(1) penalizes any person who knowingly transports or causes to be
transported any hazardous waste identified…" Government argued that D’Allesandro was guilty
of violating the RCRA because as the responsible corporate officer, he was in a position to
ensure compliance with RCRA and had failed to do so even after being warned by a consultant
on two earlier occasions that other shipments of contaminated soil had been received from other
customers, and that such material violated NIC’s permit. In government’s view, failure to prove
D’Allesandro’s actual knowledge of Master Chemical contract and shipments was irrelevant to
his criminal responsibility for those shipments.
Legal Question: Were jury instructions using responsible corporate officer theory of knowledge
appropriate?
Holding: No. In a crime having knowledge as an express element, a mere showing of official
responsibility under Dotterweich and Park is not an adequate substitute for direct or
circumstantial proof of knowledge.
Reasoning: Know of no precedent for failing to give effect to a knowledge requirement that
Congress has expressly included in a criminal statute, especially where crime is a felony carrying
possible imprisonment charges. Dotterweich and Park dispensed of scienter requirement where
statute was silent on requisite mens rea, and where crime was a misdemeanor charge.
Takeaways
• Corporations may be liable for the actions of their agents
• Different standards are used to determine if they are liable
• Vicarious Liability Standard (higher standard of proof than civil)
• MPC Approach: Action must involve higher up in corporation
• Corporation Liability raises issues about appropriate punishment, given they can’t be jailed,
monetary punishments pass-through to shareholders, and punishment can have collateral
consequences
• Personal Liability from Corporate
93
•
Individuals may receive criminal liability through their role and responsibilities in a
corporation involved in a crime
• Responsibility serves as a baseline (U.S. v. Park)
• Not all jurisdictions agree with this though (MacDonald, 1st Cir.)
94