Fall
2020
Criminal Law
PROFESSOR COLEMAN
ANDREW TISINGER
Table of Contents
1)
The Elements of the Criminal Offense ............................................................................................................ 3
A.
Actus Reus ............................................................................................................................................................ 3
1.
Did the legislature have the authority to make this conduct unlawful? ....................................... 3
2.
Did the legislature actually proscribe this conduct? ........................................................................... 6
3.
Did the state prove that the defendant violated all material elements of the crime? ................ 8
B.
Mens Rea ............................................................................................................................................................ 11
1.
Does the statute provide a level of mental culpability for each element of the offense? ....... 13
2.
Did the defendant meet each level of mental culpability? .............................................................. 15
3.
Does a mistake or accident negate the defendant’s mental culpability? .................................... 18
4.
C.
2)
Was the defendant capable of that level of mental culpability? .................................................... 20
Causation ............................................................................................................................................................ 20
1.
Why do we punish causation? .................................................................................................................. 20
2.
But-for causation. ........................................................................................................................................ 21
3.
Limits on causation. ................................................................................................................................... 22
4.
Causing a different result. ......................................................................................................................... 25
Homicide Offenses............................................................................................................................................... 25
a.
How do we determine which homicide statute to apply? .................................................................... 25
b.
Why do we gradate homicide? ..................................................................................................................... 27
c.
Intentional Homicide...................................................................................................................................... 27
1.
First-degree murder: premeditation and deliberation...................................................................... 27
2.
Second-degree murder ............................................................................................................................... 29
3.
Voluntary manslaughter: provocation ................................................................................................... 29
d.
Unintentional Homicide ................................................................................................................................ 31
1.
First-degree murder: felony murder ....................................................................................................... 32
2.
Second-degree murder: implied malice ................................................................................................ 36
3.
Involuntary manslaughter ......................................................................................................................... 38
3)
Justification and Excuse ..................................................................................................................................... 39
4)
Inchoate Crimes .................................................................................................................................................... 46
5)
Model Penal Code................................................................................................................................................. 56
a.
§ 1.02. PURPOSES; PRINCIPLES OF CONSTRUCTION ............................................................ 57
b.
§ 1.13. GENERAL DEFINITIONS ........................................................................................................... 57
c. § 2.01. REQUIREMENT OF VOLUNTARY ACT; OMISSION AS BASIS OF LIABILITY;
POSSESSION AS AN ACT.................................................................................................................................... 58
d.
§ 2.04 IGNORANCE OR MISTAKE......................................................................................................... 58
-1-
e.
§ 2.02. GENERAL REQUIREMENTS OF CULPABILITY ............................................................ 59
f.
§ 2.03. CAUSAL RELATIONSHIP . . ...................................................................................................... 60
g.
§ 2.06. COMPLICITY ..................................................................................................................................... 60
h.
§ 2.09. DURESS ................................................................................................................................................ 61
i.
§ 3.02. JUSTIFICATION GENERALLY: CHOICE OF EVILS ..................................................... 61
j.
§ 3.03. EXECUTION OF PUBLIC DUTY ............................................................................................. 62
k.
§ 3.04. USE OF FORCE IN SELF–PROTECTION ........................................................................... 62
l.
§ 3.09. MISTAKE OF LAW AS TO UNLAWFULNESS OF FORCE ............................................ 63
m.
§ 5.01. CRIMINAL ATTEMPT .............................................................................................................. 63
n.
§ 5.02. CRIMINAL SOLICITATION ....................................................................................................... 64
o.
§ 5.03. CRIMINAL CONSPIRACY ........................................................................................................... 64
p.
Article 210.0 HOMICIDE DEFINITIONS ............................................................................................. 65
q.
§ 210.1. CRIMINAL HOMICIDE .............................................................................................................. 65
r.
§ 210.2. MURDER............................................................................................................................................ 65
s.
§ 210.3. MANSLAUGHTER ......................................................................................................................... 66
t.
§ 210.4. NEGLIGENT HOMICIDE ......................................................................................................... 66
-2-
Coleman tips for his exams:
•
•
•
•
His questions ask for a decision tree. What are the possible defenses under the law and facts?
Murder is always one of the question on the exam.
Think of criminal law as drawing lines and crossing lines.
For true, false, don’t say true assuming but false unless.
Approach to a question
(1) Read the charges.
(2) Read the facts. Take note of which facts fall into a bucket for each of the charges.
(3) Determine the basis for each charge. For example, a murder charge can rest on a theory of second-degree
murder, reckless indifference murder, felony murder.
(4) Identify the material elements of each charge. Identify the level of mental culpability for each material element
of the charge.
(5) Determine potential defenses to each material element of the charge.
1) The Elements of the Criminal Offense
A. Actus Reus
1. Did the legislature have the authority to make this conduct unlawful?
➢
There must be overt criminal conduct (we can’t criminalize thought crimes).
Definition:
- The bad act must be the outward manifestation of the criminal intent. The act must, in and of itself,
demonstrate that the actor put her criminal intent into effect. That is, we must be able to infer criminal intent from the
act. (See Proctor v. State, rejecting statute criminalizing “keeping building” with intent to distribute alcohol. Even
talking to friends or putting up a sign is not putting that specific intent into motion). [AT: the issue here is that
the criminal intent element was specifically the “intent to distribute alcohol”]
- Concurrence is the requirement that
o Every criminal act must be the product of some level of mental culpability.
o Mental culpability must be accompanied by a bad act.
Justifications:
- Utilitarians would note that such punishments are not efficacious. It is much more difficult to deter a thought
(over which most people have no control) than it is to deter an action (which is, under our system of law, the
result of a conscious choice). Further, thoughts add few social ills into the world; they have no net effect on
the utility in society.
- Retributivists would note that one can hardly deserve punishment for innocent acts. Our justice system is
based on acts, and we have made the determination that it is unjust to hold one responsible for her thoughts.
- Punishment of a thought would violate the due process clause.
Nuances:
- An aspect of this is conscious choice. The defendant in Proctor may still choose not to distribute alcohol. The
act of “keeping a place” has not committed him to that path. Note that preparation is not sufficient to prove
the overt act. By criminalizing an innocent act accompanied by a criminal thought, the legislature effectively
criminalizes a thought.
➢
The act must be voluntary.
Definition: An act (or omission) is voluntary where the actor could have behaved differently but didn’t.
-3-
Model Penal Code Section 2.01
1) A person is not guilty of an offense unless his liability is based on a 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 reflex or convulsion; (e.g., People v. (Huey) Newton)
- A bodily movement during unconsciousness or sleep; (e.g., People v. Grant)
- Conduct during hypnosis or resulting from hypnotic suggestion; and
- A bodily movement that is otherwise not a product of the effort or
determination of the actor, either conscious or habitual. (e.g., Martin v. State;
People v. Newton)
Justifications:
- Utilitarians require voluntariness because an involuntary act cannot be deterred.
- Retributivists require voluntariness because a person cannot deserve their involuntary actions. It would
undermine our security in criminal law to be held criminally liable for conduct we cannot control.
- Packer: “the law treats man’s conduct as autonomous and willed, not because it is, but because it is desirable to
proceed as if it were. It is desirable because the capacity of the individual human being to live his life in
reasonable freedom from socially imposed external constraints . . . would be fatally impaired unless the law
provided a locus poenitentiae, a point of return beyond which external constraints may be imposed but before
which the individual is free—not free of whatever compulsions determinists tell us he labors under but free of
the very specific social compulsions of the law . . .” [AT: our society simply functions better under the fiction
that we have free will, because that structure of the world is one we can order.]
Nuances:
- Note that if the defendant makes a purposeful action but it is a mistake, they are still acting voluntarily. For
example, in People v. Newton, the defendant was not acting voluntarily because he boarded a plane that was not
bound for New York. Further, the state failed to show that the defendant’s actions were the direct cause of the
plane’s landing in New York. However, if Newton got on a plane that was scheduled to go to New York
without knowing where the plane was going, he still made a voluntary act. The mistake is a question of mental
culpability.
- This voluntary requirement applies to results and attendant circumstances as well. A statute requiring the
defendant to be in public requires the defendant to make the voluntary choice to be in public. Martin v. State
- Automatism is an exception to the voluntary requirement. A defendant’s actions were not voluntary if, though
the defendant is capable of action, is not conscious of what he is doing. An example would be a seizure.
o However, the defendant may still be liable if she acted voluntarily in the direct course of conduct
leading to the outcome. This raises the issue of foreseeability. The state must still prove that the
defendant met both the conduct and mental culpability required for the crime.
o In People v. Decina, the court held that the defendant struck four girls with his car while unconscious.
Therefore, the defendant cannot be held liable for that action. However, the defendant had a high
risk of epileptic seizure. By driving, he negligently risked having such a seizure, the natural
consequence of which would be the type of driving that killed the girls. However, the voluntary act
with which he is being charged is driving a car with the risk of epileptic seizure. The dissent notes
that this is not a crime. The defendant is charged with operating a car in a negligent or reckless
manner that causes the death. “Negligent operation of the car” would begin, according to the dissent,
only when the defendant becomes unconscious.
▪ Was it reasonably foreseeable that the voluntary act would lead to the proscribed result?
- Reflex shock condition in People v. (Huey) Newton established that being shot can cause a reflex.
➢
It can’t simply proscribe the propensity to commit future crimes.
Definition:
-4-
-
The defendant must be charged for an act the defendant has committed, not an act the defendant might
commit.
Justifications:
- Utilitarians care about deterrence. A status cannot be deterred; it is not open to free choice. Nobody can be
deterred from being a leper.
- Retributivists care about desert. No one can deserve a punishment for who they are or the involuntary result
of who they are. Punishment must be earned through one’s voluntary actions.
Nuances:
- For example, punishing someone for being an addict is punishing them for who they are, which they cannot
change. (Robinson v. California; “be addicted to the use of narcotics”). There were three decisions in Robinson.
The first held that addiction is an illness, illnesses are statuses, and it is a cruel and unusual punishment to
punish someone for their status. The second held that addiction is simply the propensity to do drugs. To
punish the propensity would be to punish an intent. The third found that the defendant had used drugs in
California, but that to punish someone for yielding to their addiction was to punish someone for involuntary
conduct.
- This doctrine was crystalized in Powell v. Texas. These decisions noted that punishment for a mere status was
improper (under any of the above theories). The statute criminalized being “in a state of intoxication in a
public place.” The defendant alleged he was yielding to his status of being an alcoholic. This statute gives the
defendant a choice. While the defendant cannot choose voluntarily not to be drunk, the defendant can choose
voluntarily not to be in public. (the White test). The defendant must know that she has a feasible alternative to
violating the statute. (it’s not clear that this would be the law today).
o This test has been read to constrain proscribed conduct to past acts (being in public) instead of future
propensities (being an alcoholic; yielding thereto).
- The White test was used in Pottinger v. City of Miami (though controversially). Because homeless people cannot
conduct their activities indoors, they run afoul of many ordinances that criminalize those acts outdoors. Often,
homelessness is a result of mental illness.
- Papachristou v. Jacksonville struck down a vagrancy statute that punished rogues, vagabonds, common gamblers,
drunkards, and night walkers, lewd, wanton and lascivious persons, habitual loafers. The decision is not
decided on the grounds of status crimes, but on the grounds that the acts were innocent.
➢
Specificity/overbroadness.
Definition:
- Vagueness: The legislature has “drawn the line,” but the line is unclear. Therefore, the defendant does not
have adequate notice of what conduct is criminal and what conduct is not. Additionally, it authorizes and even
encourages arbitrary and discriminatory enforcement.
o A statute can be vague on its face or in how it is applied.
- Overbreadth: The legislature has drawn a line that will criminalize both wrongful and innocent conduct,
including protected conduct sometimes. The legislature cannot set a net large enough to cover all possible
offenders and leave it to the court to separate out the innocents.
Justifications:
- Utilitarians argue that the goal of criminal punishment is to maximize the value in society. Therefore, criminal
punishment should serve a goal. Generally, that goal is to prevent future crime, either by deterring criminals
from offending or by incapacitating dangerous offenders. If a statute is too vague, the potential offender is
unaware that the proscribed act is criminal. Therefore, the statute cannot deter them from their conduct. If
the statute is overbroad, the statute proscribes lawful acts, thereby harming the offender without helping
society.
- Retributivists argue that the offender should earn their punishment. It is unlikely that the offender earned their
punishment if they were unaware that they had crossed the line. If the statute is deficient in specificity, the
-5-
-
statute punishes innocents, either because the offender was unaware of the proscription of the conduct or
because the offender committed an innocent act.
A lack of specificity violates the due process clause of the Fourteenth Amendment.
Nuances:
- In Chicago v. Morales, the statute had four parts: (i) the police officer must reasonably believe that at least one of
two or more people present in a public place is a criminal street gang member; (ii) the people must be loitering,
which is remaining in any one place with no apparent purpose; (iii) the officer must order all of the persons to
disperse and remove themselves from the area; (iv) the person must disobey that order.
o Further regulations limited the discretion of police officers. The regulations defined gang member
and defined the area in which the regulation should be enforced.
o However, here, the term “loitering” is uncertain because it is unclear what “no apparent purpose”
means, and in fact, that leaves the law up to the discretion of the officer. Though the offender is
liable for conduct after the order to disperse, the requirement that the offender disperse because of
the officer’s assertion of loitering is improper; prohibited conduct must occur before the officer can
act.
o The dispersal order itself is vague; it is unclear what a proper “removal” would be. Thus, the police
officer has absolute discretion as to what conduct is criminal. In that way the statute it overbroad; it
permits the officer to find loitering in total strangers talking to a gang member.
- In Papachristou v. Jacksonville, a statute criminalizing, among other things, lewd, wanton, and lascivious persons,
was found to be overbroad in allowing the police’s discretion in deciding who is violating the statute and who
isn’t. This was also true in Desertrain v. Los Angeles, where a statute that disallowed sleeping in one’s car was
vague. It wasn’t clear what items made one’s car living quarters, which resulted in the defendant being cited
numerous times. The defendant could be cited for taking shelter from the rain or for eating in his car, which
were clearly legal acts.
- The court cannot read into the statute nuance that is not there. In Jane L. v. Bangerter, a statute that did not
allow experimentation on unborn children was improperly interpreted by the court to make it not vague.
- In Thornhill v. Alabama, the statute criminalized loitering near a building to discourage trade. This statute was an
unconstitutional limit on the First Amendment right to protest. However, a reasonable restriction of speech
for public safety is permissible if it is sufficiently precise to prevent discriminatory enforcement.
- In State v. Romage, the statute criminalized soliciting a child under fourteen to accompany the offender into
entering a vehicle without the express permission of the parent. This statute was overbroad in not attaching a
criminal intent to the coaxing. A coach offering to drive an underage player home would be violating this
statute. The court held that it could not simply sever one of the words of the statute to transform the statute
into being constitutional.
- Lanzetta v. New Jersey: “any person not engaged in lawful occupation, known to be a member of any gang
consisting of two or more persons, who has been convicted at least three times of being a disorderly person, or
who has been convicted of any crime in his or any other State, is declared to be a gangster”
o Punishes a status.
o Impossible to know what it is to be “known as a gang member”
2. Did the legislature actually proscribe this conduct?
➢
Constitutional principles that must be satisfied:
1)
Separation of powers. Only the legislature may draw the line (create statutes proscribing conduct).
Therefore, the judiciary may not proscribe any conduct not covered under the charged statute. The court
may not interpret the statute to proscribe any more conduct than the legislature intended. (See Keeler; Rogers
v. Tennessee)
The court should therefore try to interpret the legislature’s intent. The court should not try to “update” the legislature’s
intent with new information. In Keeler v. Super. Ct., the defendant was charged with murder for killing a viable fetus. The
-6-
murder statute criminalized killing a human being. Instead of using our modern scientific understanding of a viable
fetus, the court looked to the history of the murder statute. If the legislature wants the murder statute to better reflect
our modern understanding of murder and of a human being, it can do so. The court may not draw that line for them.
To do so would be to create a new crime: murder for the homicide of viable fetuses not yet born.
The court notes that the murder statute is descended from common law. It does not so much interpret the legislative
purpose as it interprets the court’s own history. However, since the codification of the common law, the court cannot
simply apply stare decisis.
2)
Retroactivity. The legislature must draw the line before the defendant can cross the line. The defendant
must have notice so that she can conform her conduct to the requirements of the statute. The principle
stems from the criminal law’s focus on free will. That's why we have a requirement that there be a legal
duty in order to punish for omission, because it is the knowledge of the legal duty that makes a failure to
act criminal. If the person doesn't know that he or she has a legal duty and fails to act, then the person has
not acted with criminal intent.
The first question is if the legislature had actually enacted the statute prior to the commission of the charged crime.
If so, the next question is whether the court’s interpretation of the statute so radically changes the statute that the
defendant’s conduct would not have been criminal under the old interpretation, but would be criminal under this
interpretation. In Keeler v. Super. Ct., the defendant’s conduct was not illegal under the old interpretation of a human
being, but it was illegal under a reinterpretation of human being. Under the legal fiction that the defendant understood
the criminal bounds of his conduct and conformed his behavior to that understanding, it would be improper to change
the definition of human being to make his act now criminal. This is a due process issue (Amend. XIV).
However, some principles are established by the common law. These are not statues that seek to be applied
retroactively. The court system is founded on stare decisis. Therefore, a common law doctrine of criminal law violates the
principle of fair warning, and hence must not be given retroactive effect, only where it is “unexpected and indefensible
by reference to the law which has been expressed prior to the conduct in issue.” In Rogers v. Tennessee, the court notes
that the year and a day rule had been almost fully abolished and had not been adopted into the Tennessee statutory code.
It was not, therefore, surprising that it would be changed.
Deterrence is only effective if the defendant was aware of the crime. A defendant did not act blameworthily unless she
knew that what she was doing was wrong. We use a legal fiction here that a statute published in the proper places is
proper notice.
In Commonwealth v. Levesque, the court admits that it had never found a duty when the defendant created the risk. In this
case, there was no warning to the defendants that, by creating the risk, they assumed a duty to “take reasonable steps” to
prevent the risk from taking effect. This exact line of reasoning was true in State v. Lisa, where a jury instruction based
on the Restatement of Torts was found to be insufficient to provide the notice required by due process that the
defendant may suffer criminal liability for his actions.
➢
Statutory interpretation.
Next, if we find that the legislature passed this statute in the proper time, we next turn to statutory interpretation.
1)
2)
Plain meaning. These statutes should have plain meanings. Where the meaning of the statute is
unambiguous, we use the plain meaning of the statute in assessing D's conduct.
Extrinsic evidence. Where the meaning of the statute is ambiguous, we first turn to extrinsic
evidence. This is often the legislative record.
▪ Under what circumstances/for what purpose was the statute passed?
• Were there any legislative notes that shine a light on why this statute was passed?
-7-
•
➢
From the surrounding terms of the statute, is it clear what the statute was intended
to do?
Rule of lenity.
Where the meaning of the statute is still ambiguous, interpret the statute in a way most beneficial to the defendant. Note
that this is not a Constitutional requirement. In fact, the Model Penal Code requires that statutes are “construed
according to the fair import of their terms.”
➢
Purpose of the law.
Sometimes, you may advance a defense that the original purpose of the statute is not advanced by this interpretation of
the statute. For example, in Johnson v. State, the defendant was charged under a statute criminalizing delivering drugs to
children. The defendant potentially delivered drugs to her newly born child after the child was born but before the
umbilical cord was cut. The defense noted that there was no way the defendant could have met the intent requirement
under the statute. However, if she did, the goals of the statute are not furthered. The legislative history shows that
criminalizing this action was specifically rejected from another bill. The statute wants to protect children. Here,
mothers would be discouraged from seeking prenatal care. It would separate families.
3. Did the state prove that the defendant violated all material elements of the
crime?
➢
Material elements.
1)
2)
3)
Conduct is the physical behavior of the defendant. It can be an act, an omission, or possession.
Circumstance is the objective fact or condition that exists in the real world when the defendant engages in
the conduct (like burglary having to be at night).
Result is the consequence or outcome caused by the defendant’s conduct.
A material element is an element connected with the harm or evil sought to be prevented by this law. In the MPC, this
also includes an element connected with the existence of a justification or excuse.
➢
Act.
A voluntary, conscious, physical action by the defendant.
➢
Omission to commit an act of which physically capable.
Model Penal Code, Section 2.01 (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 (failure to
file an income tax return); or
b. A duty to perform the omitted act is otherwise imposed by law (parent’s failure to
provide food for child)
There are two requirements to prove that an omission was criminal conduct.
•
1) The defendant must have had a pre-existing legal duty. This is likely one of the five listed below.
A statute imposes a duty of care. (See Jones v. United States)
An example would be the requirement to file an income tax return. See MPC §2.01(3)(a).
-8-
•
A status relationship imposes a duty of care. (See Jones v. United States)
We should look to precedent to see whether a relationship is sufficient. The classic example would be the duty of a
parental figure towards their child. Some states have assigned that duty where there is a “family-like” relationship. For
example, a member of the same household may assume a duty of care. [AT: The status relationship must also arise from
a power differential; the child does not have a duty of care for her parent.]
•
A contract imposes a duty of care. (See Jones v. United States)
Medical providers contract to provide care to their patients. Further, a business-owner may have a duty of care over
people they allow onto their property.
•
One has voluntarily assumed the care of another and so secluded the helpless person to prevent others from
rendering aid. (See Jones v. United States)
This is likely the case in Jones v. United States. The defendant assumed responsibility for the children. The defendant
alleges that she did not affirmatively separate the children, which would be a defense.
In State v. Lisa, the defendant was originally charged under this theory. The jury instruction pointed to statements or
conduct that prevent another person from seeking aid for the victim. Here, the defendant locked the victim in the room
with him. However, the State v. Lisa conviction was overturned, because this instruction was based on civil tort law, and
therefore, did not provide notice of illegality.
•
Affirmatively created the risk
In Commonwealth v. Levesque, the court held that, in general, one did not have a duty to take affirmative action; however a
duty to prevent harm to others arises when one creates a dangerous situation, whether that situation was created
intentionally or negligently. Some jurisdictions have a standard of criminal liability when the actor realizes or should
have realized they created an unreasonable risk of physical harm to others.
The duty that arises is to exercise reasonable care to prevent the risk from taking effect. In Levesque, the defendants
attempted to put the fire out, but that did not absolve them of their duty to exercise reasonable care to prevent the risk
of death. The “reasonableness” standard implies an issue of fact for the jury to determine whether the defendants
adequately exercised care to prevent the risk.
Note that, for one to assume this duty, they must create an unreasonable dangerous risk to others with a level of mental
culpability. Therefore, someone who was not negligent in creating the risk cannot assume a duty therefore. The people
who create the risk cannot assume a duty if the risk does not extend to others. Finally, if the risk is reasonable (i.e.,
negligently leaving a bag on the ground where someone might trip), the person cannot assume a risk.
Recklessly failing to exercise reasonable care to prevent risk he created, which causes the death of another, is involuntary
homicide.
2)
The defendant failed to perform that duty with the requisite level of mental culpability.
Criminal liability for an omission can only arise from an awareness of a legal duty. (See Jones v. United States, holding that
the jury was improperly instructed because they did not hear about this requirement.) The defendant must have some
notice that they must act. Otherwise, their omission is not overt. Understanding that one has a duty provides them
notice that failure to act under the duty exposes them to criminal liability. To bring such a defense would be a mistake
of law defense.
-9-
Additionally, the requirements above must be met. This must be past, voluntary, overt conduct. In the absence of duty,
there is no evidence that the omission was overt. The act itself does not manifest malintent. Further, one could argue
that the absence of a recognition of that duty (in fact or in law) allows completely involuntary omissions, because the
actor was unaware of her requirement to act.
➢
Possession.
Model Penal Code, Section 2.01(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.
Coleman: The power and intention to exercise control.
Under the Model Penal Code, possession need not be (i) immediate; (ii) physical; or (iii) sole. Note that the question is
whether the defendant was able to terminate his possession. This requirement ensures that the defendant chose to retain
that possession. Therefore, such action can be deterred, and punishment for the act is deserved.
A level of mental culpability is required for both the possession and for what the object was. [[Knowledge of the
illegality is not required?]]
There are three relevant “types” of possession:
1) Actual possession: the defendant has physical dominion and control over that possessed.
The length of possession required depends on statutory intent. The possession of drugs for a short period of time may
be insufficient to establish possession, because the statute attempts to criminalize the use of drugs, which would require
more time. However, in State v. Teemer, because guns require very little time to use, the momentary possession while
moving the gun was sufficient to establish possession. However, juries may exercise common sense when there was
clearly no intent to possess for longer than necessary.
2)
Constructive possession:
You could make a reasonable argument that constructive possession is not conduct at all, but instead an attendant
circumstance where the defendant has the object available.
Constructive possession requires a nexus between two things:
•
Effective power over the thing possessed.
This is often found if the object is in a place specially accessible to the defendant. The jury often finds that the
defendant’s home or car (even if someone else is also there) is a specially accessible place. In United States v. Maldonado,
the court found that the defendant had effective power over the drugs when they were locked in his hotel room.
However, Professor Coleman pointed to a thought experiment about whether the defendant could actually have
controlled the drugs.
For example, in State v. Barger, the court rejected the argument that that the ability to “take up and move” an image on
the Internet was sufficient to establish constructive possession. If that were true, everyone who could use the Internet
would have constructive possession of images thereon. The defendant must, through some affirmative act, gain that
effective power.
The court may also look at the defendant’s proximity to the object or his ability to reduce it to his control and dominion.
However, proximity alone is insufficient. In State v. Jenkins, evidence that the defendant did not live in the apartment and
- 10 -
that he had no residue on him or on anything he had touched mitigated evidence that the defendant was found sitting
next to a pile of cocaine.
•
The intention to control it.
For example, in State v. Barger, the defendant had child pornographic images in his cache, but there was no evidence that
the defendant was aware that the images were there. Therefore, the state could not prove actual or constructive
possession of those images. Instead, the state attempted to prove constructive possession through the ability to control
the on the screen and the ability to influence the images.
This should be a high bar. It should require evidence independent from the ability to control. For example, in
Maldonado, the court pointed to the defendant’s statements that he wanted to move the drugs to his own room and his
calls with the buyer, to whom the defendant wanted to transfer the drugs. However, a nexus must exist, and it is unclear
that the defendant concurrently had effective power over the drugs and the intention to control it.
The question is the defendant’s relationship to the object possessed. In State v. Casey, the defendant was charged with
being a felon in possession of a firearm. A guest brought the gun into the home. The guest left the gun in the home.
However, guests maintain possession of their personal effects when they enter someone else’s home. This is true even if
the guest places the object in the defendant’s home. There was no independent evidence that, by placing the gun down,
the guest intended to transfer possession. Further, there is no evidence that the defendant thereby intended to control
the gun.
3)
Joint possession
Possession need not be sole. Two people may jointly possess something. For example, two people travelling together
with one suitcase likely jointly possess whatever is in the suitcase. In United States v. Maldonado, the court noted that the
defendant had control over the drugs because they were locked in his hotel room. However, the court also found that
the seller had constructive possession because he could have “resisted any attempt by Zavala to return to the room and
carry away the drugs.” Instead of concluding that neither of the parties had control over the drugs, the court found that
joint parties, because both parties were aware of the drugs in the room, had the means to control the drugs, and had the
intention to control the drugs.
You maintain possession until you relinquish it. So if possession is established, next look to see if the party has ceded
possession, either to another or to nobody.
There is justifiable worry that possession laws are the new vagrancy laws, because they are applied so aggressively.
B. Mens Rea
Justification. It typically violates due process to hold someone responsible for violating a statute without requiring that
she was or should have been aware. The offender should choose to violate the statute. You cannot deter a criminal who
is not aware that they are committing the crime. A person does not deserve a punishment of which they are not aware,
or of which they should not have been aware.
Strict Liability. However, the legislature does allow for some “strict liability” statutes. Strict liability statutes have no
required level of awareness. Because of their irregularity, there is a high bar for being a strict liability statute.
The contention that an injury can amount to a crime only when inflicted by
intention is no provincial or transient notion. It is as universal and persistent in
mature systems of law as belief in freedom of the human will and a consequent
- 11 -
ability and duty of the normal individual to choose between good and evil. A
relation between some mental element and punishment for a harmful act is almost
as instinctive as the child's familiar exculpatory ‘But I didn't mean to,’ and has
afforded the rational basis for a tardy and unfinished substitution of deterrence and
reformation in place of retaliation and vengeance as the motivation for public
prosecution. Morissette.
Morissette v. United States also acknowledged that common law crimes were generally intended to include some level of
mental culpability even where no level was provided. However, there are some newer regulations that are more geared
towards public safety. The nature of these criminal statutes is to enforce a duty of care in an increasingly complex world.
With greater complexity, threats to public health, safety, and welfare can reach more people with more devastating
results.
The industrial revolution multiplied the number of workmen exposed to injury
from increasingly powerful and complex mechanisms, driven by freshly discovered
sources of energy, requiring higher precautions by employers. Traffic of velocities,
volumes and varieties unheard of came to subject the wayfarer to intolerable
casualty risks if owners and drivers were not to observe new cares and uniformities
of conduct. Congestion of cities and crowding of quarters called for health and
welfare regulations undreamed of in simpler times. Wide distribution of goods
became an instrument of wide distribution of harm when those who dispersed
food, drink, drugs, and even securities, did not comply with reasonable standards of
quality, integrity, disclosure and care. Such dangers have engendered increasingly
numerous and detailed regulations which heighten the duties of those in control of
particular industries, trades, properties or activities that affect public health, safety
or welfare.
While many of these duties are sanctioned by a more strict civil liability, lawmakers,
whether wisely or not, have sought to make such regulations more effective by
invoking criminal sanctions to be applied by the familiar technique of criminal
prosecutions and convictions. This has confronted the courts with a multitude of
prosecutions, based on statutes or administrative regulations, for what have been
aptly called ‘public welfare offenses.’ These cases do not fit neatly into any of such
accepted classifications of common-law offenses, such as those against the state,
the person, property, or public morals. Many of these offenses are not in the nature
of positive aggressions or invasions, with which the common law so often dealt,
but are in the nature of neglect where the law requires care, or inaction where it
imposes a duty. Many violations of such regulations result in no direct or
immediate injury to person or property but merely create the danger or probability
of it which the law seeks to minimize. . . . Morissette.
Courts should read a statute to be strict liability only where the statute is clearly intended to be a strict
liability statute.
Congressional silence as to mental elements in an Act merely adopting into federal
statutory law a concept of crime already so well defined in common law and
statutory interpretation by the states may warrant quite contrary inferences than the
same silence in creating an offense new to general law, for whose definition the
courts have no guidance except the Act. Morissette.
These public safety statutes are designed to minimize the risk to the public. Therefore, liability is imposed on those
parties with the ability to mitigate the risk.
- 12 -
The Act is concerned not with the proprietary relation to a misbranded or an
adulterated drug but with its distribution. In the case of a corporation such
distribution must be accomplished, and may be furthered, by persons standing in
various relations to the incorporeal proprietor . . . To be sure, that casts the risk [of
criminal liability] upon all who according to settled doctrines of criminal law are
responsible for the commission of a misdemeanor. Dotterweich.
Attributes of a strict liability statute:
• creates a duty to act or not to act.
• is a forbidden act or omission as opposed to an affirmative aggression against people or property.
• Allocates risk between the public who is exposed to the risk and the people who are engaged in the dangerous
activities.
• Is allocated to someone who is in a reasonable position to prevent the harm.
• It is not descended from the common law.
A statute is strict liability if any of the elements does not include a mental element.
A strict liability statute must be structured so that the offender has some affirmative notice of the existence of the duty.
In Lambert, the defendant was guilty of being a felon without registering, but there was no way for the defendant to have
been aware of the requirement. There is no legal fiction of understanding, because the defendant holds a higher burden
than that of an ordinary citizen.
Aside. For possession, the defendant would need to know she had possession of the gun. If she did not know
she had possession, she could not have violated the statute.
Process. Courts look for a level of mental culpability for each material element of the statute. If the statute does not
provide an element, the court can either strike the statute down, read a level of mental culpability into the statute, or
determine the statute to be strict liability. They start by assuming that the legislature intended criminal intent as an
element of the offense, unless they see otherwise (Morissette).
If strict liability offenses did not exist, the risk would still exist. The impetus for avoiding these public welfare risks
would be on each individual citizen. The government understands that this is inefficient and allocates all of the risk to the
people in the best position to mitigate the harm.
1.
1)
2)
Does the statute provide a level of mental culpability for each element of the offense?
If not, the statute could be strict liability, or it could be unconstitutional. Is it clear that the legislature
wanted this to be strict liability? (Morissette)
If the legislature explicitly wanted this offense to be strict liability, the offense is not necessarily strict
liability.
a. Is this the type of offense that is typically strict liability?
i. Regulatory to protect health and safety of public? (Morissette; Balint)
“the State may in the maintenance of a public policy provide “that he who shall do
them shall do them at his peril and will not be heard to plead in defense good faith
or ignorance.” Many instances of this are to be found in regulatory measures in the
exercise of what is called the police power where the emphasis of the statute is
evidently upon achievement of some social betterment rather than the punishment
of the crimes as in cases of mala in se . . . it mere uses a criminal penalty to secure
recorded evidence of the disposition of such drugs as a means of taxing and
restraining the traffic. It’s manifest purpose is to require every person dealing in
- 13 -
drugs to ascertain at his peril whether that which he sells comes within the
inhibition of the statute.” Balint
Note that X-Citement Video is the opposite of this. The court finds that the
legislature typically does not regulate the contents of magazines and films.
ii.
iii.
iv.
v.
Neglect where the law requires care? (Morissette; Balint)
Inaction where the law requires action? (Morissette; Balint)
Not particularly directed towards someone.
Directed at the person best able to protect the public from an inherent danger?
(Dotterweich)
In People v. Dillard, the defendant reviewed the other statutes surrounding the statute at issue to determine legislative
intent. The court found that the act was declared necessary for the immediate preservation of the public peace, health or
safety. Unlike in Morissette, the court turns not to the regulatory purpose of the act, but to (i) the degree of
destructiveness to the social order and (ii) the ability of the state to prove criminal intent. Therefore, the public was
significantly at risk from the defendant’s actions (carrying a loaded firearm in public), whether or not the defendant was
aware the gun was loaded.
If this type of offense generally is strict liability, is it true that (i) the punishment is modest and (ii) the stigma of a
conviction is minimal (does not gravely besmirch)? (U.S. v. Wulff). If so, the legislature could make the offense strict
liability. If not, the court must assess whether the legislature could condition such harsh punishment without requiring a
level of mental culpability. If the legislature could not, the punishment violated the due process rights of the defendant.
The MPC 2.05 sets criminal offense at a violation for strict liability offenses. Crime does and should mean
condemnation, and no court should have to pass that judgment unless it can declare that the defendant’s act was
culpable. This is not a bright line decision.
If this type of offense generally isn’t strict liability, the legislation probably violates the defendant’s rights to due process
and the Eighth Amendment. Under State v. Adkins, the legislature shifted a burden on a mental element to the
defendant. The statute was strict liability with respect to the illicit nature of the drug. The statute attempted to further
the state’s interest in curbing use of these drugs. Therefore, the statute could “assume” that anyone who had illicit drugs
knew they were illicit (under the exceptions in the statute). The dissent argued that this was certainly not true, that
knowledge of the illicit nature of the drugs was a required element for blameworthiness, and that defendants could
frequently know of possession but not of the illicit nature, simply through a mistake as to what was in the bottle or the
package. Coleman thinks this was a serious assault on the constitutional rights of the defendant.
3)
If the legislature was not explicit, but it seems clear that the statute was intended to be strict liability, the
offense may still be read as strict liability.
a. Is this the type of offense that is typically strict liability?
i. Regulatory to protect health and safety of public?
ii. Neglect where the law requires care?
iii. Inaction where the law requires action?
iv. Directed at the person best able to protect the public from an inherent danger? (like a
tax)
v. Person one can presume is informed of the danger of her activity (Dillard)
If it is, the offense is strict liability.
If it isn’t, can the statute be saved by reading a level of mental culpability into the statute? (Wulff says this can only
happen for common law offenses) (Baendor v. Barnett allowed it for a common law statute).
(X-Citement Video). Is it an offense imported from common law; kind typically requiring blameworthiness; aimed at
positive aggressions against people or property; punishment severe and stigma of conviction significant; purports to
make exercise of a fundamental right criminal?
- 14 -
•
Carrying one level of mental culpability throughout the material elements. (MPC 2.02(4))
In United States v. X-Citement Video, the defendant was charged with “knowingly transport[ing] any visual depiction of a
minor engaging in sexually explicit conduct. The Chief Justice carried through the “knowingly” element to the content
of the photograph. The Court further noted that the offense was punishable by up to 10 years in jail, and is therefore
not a public welfare offense.
•
Grammar
In Flores-Figueroa v. United States, the Supreme Court required a carry-through of knowingly in the statute “knowingly
transfers, possesses, or uses, without lawful authority, a means of identification of another person.” Justice Bryer noted
that, in ordinary English, where a transitive verb has an object, listeners in most contexts assume that an adverb that
modifies the transitive verb tells the listener how the subject performed the entire action including the object.
•
Appropriate default level (MPC says it’s recklessness.)
In State v. Lima, the defendant was convicted of first-degree child abuse. The trial court refused to instruct the jury on
the level of culpability. The appellate court notes that the jury should have bene instructed that, where there is no
provided level of mental culpability for a material element, the element is satisfied if the defendant acted purposefully,
knowingly, or recklessly.
The default level in the federal court has been set above negligence. In Elonis v. United States, the defendant made threats.
The question was whether the statute could require only negligence as to his understanding of the effect of his
statements. The court found that insufficient, as the statute infringed on his First Amendment rights. While the court
stopped short of defining a default recklessness standard, it established that, at the least, intent and knowledge were
sufficient.
•
Affirmative Defenses:
4) D is not the appropriate person to hold accountable. (U.S. v. Dotterweich)
5) The obligation is objectively impossible to satisfy. (this is a very high bar). (U.S. v. Park)
6) Who has the burden of persuasion? (Atkins)
The Michaels test: Strict liability is constitutional only when the intentional conduct covered by the statute could be
made criminal by the legislature (i.e., remove the attendant circumstances). The classic example is bigamy; can you
criminalize getting married? For example, in Smith v. California, a statute condemned the possession of obscene material
without including a level of mental culpability. The requirement clearly covered a free speech right (possessing
materials). While requiring stricter attention for food labelling was fine, requiring stricter attention for a bookseller
would abridge free speech rights. Therefore, pay attention to where a Constitutional right would be abridged by liability
under the statute.
2.
Did the defendant meet each level of mental culpability?
MPC § 2.02. General requirements of Culpability
1) Minimum Requirements of Culpability. Except as provided in Section 2.05, a person is not guilty of an offense unless he
acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element
of the offense.
2) Kinds of Culpability Defined.
A. Purposely. A person acts purposely with respect to a material element of an offense when:
i. if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage
in conduct of that nature or to cause such a result; and
- 15 -
Commented [AT1]: Get a better understanding of what
“conscious object” means.
ii. if the element involves the attendant circumstances, he is aware of the existence of such circumstances
or he believes or hopes that they exist.
Transferred intent. When the defendant intended to harm someone else, but they harmed the victim instead, the
doctrine of transferred intent can provide the proper mens rea. There are two requirements under MPC 2.03(2): the
harm differs only in that a different person is affected; or the actual result involves the same kind of injury or harm as
that designed or contemplated and is not too remote or accidental in its occurrence to have a [just] bearing on the actor’s
liability or on the gravity of his offense.
General and specific intent.
• German method: general intent is the broader question of blameworthiness; specific intent is the mental
element of the criminal offense
• Used method: general intent is the intent to do the proscribed act; specific intent is the unexecuted intent to do
a further act to accomplish a further result (e.g., assault with intent to kill).
• Faulkner method: general intent assumes the defendant intended the foreseeable consequences of the conduct;
specific intent requires the defendant to intend a particular result.
• MPC method: general intent is recklessness and negligence; specific intent is purpose and knowledge.
In Regina v. Faulkner, the defendant was charged with “maliciously, unlawfully, and feloniously” setting fire to the ship.
The Crown attempted to transfer the defendant’s intent to steal rum to his intent to burn down the ship. One of the
justices rejects the broad proposition that the commission of one felony (theft) can provide the general bad intent of
another felony (burning down the ship). Another justice questioned whether it was reasonably foreseeable that stealing
the rum would burn down the ship. This can’t be negligence, there needs to be a level of intent attached to the final
result, whether through foreseeability, transferred intent, or the finding of actual intent.
Willful ignorance. If the defendant was not actually aware, the prosecution can meet its burden if the ignorance was
solely and entirely a result of his having made a conscious purpose to disregard the nature. See United States v. Jewell,
where the defendant rented a car with marijuana.
B. Knowingly. A person acts knowingly with respect to a material element of an offense when:
i. if the element involves the nature of his conduct or the attendant circumstances, he is aware that his
conduct is of that nature or that such circumstances exist; and
ii. if the element involves a result of his conduct, he is aware that it is practically certain that his conduct
will cause such a result.
The difference between acting intentionally and acting knowingly is somewhat subtle, but the following example should
clear it up a little.
EXAMPLE: Fred and his new wife, Betty, decide to go to Hawaii on their honeymoon. Wilma, Fred’s jealous ex-wife
finds out what flight they are on and plants a bomb on the plane with the intent of killing Fred and Betty. Wilma knows
that there will be ninety-eight other passengers on the flight and, though she feels bad that they will die too, her hatred
of Fred and Betty is so strong that she decides to proceed with her plan anyway. Sure enough, the bomb explodes in the
middle of the flight, and all one hundred people on board are killed. According to the Model Penal Code’s breakdown of
mens rea, Wilma has intentionally killed Fred and Betty because she acted with the intent that Fred and Betty would die.
However, Wilma only acted knowingly with regard to the killings of the other ninety-eight passengers because, although
it was not her intent to kill them, she acted knowing that her actions would result in their deaths. In other words, with
respect to Fred and Betty, Wilma acted with the desire to cause their deaths, but with respect to the other ninety-eight
passengers, Wilma acted not with the desire to cause their deaths, but with the knowledge that their deaths would result
from her actions.
The difference between recklessness and knowledge is that where a person acts knowingly he acts with the certainty that
a certain result will follow from his actions. However, where a person acts recklessly, the person does not know for sure
- 16 -
Commented [AT2]: This is clearly lower. The distinction
between “conscious object” and “aware of the nature of the
conduct” and “consciously disregards a substantial risk that
the material element will result from his conduct.”
Conscious object would be that I was trying to do
something.
that a specific result will follow. Rather, he only knows that there is a substantial risk that the result will follow. For
example:
EXAMPLE: Fred and his new wife, Betty, decide to go to Hawaii on their honeymoon. Wilma, Fred’s jealous ex-wife,
finds out what airline they are taking and what day they are flying and what plane they will be flying on, and she plants a
bomb on that plane. Wilma has no idea what time the flight takes off, but she sets the bomb to go off at 7:00 in the
morning. Sure enough, the bomb goes off at 7:00 in the morning, killing a baggage handler who is loading luggage onto
the plane. In this case, Wilma has not purposefully killed the baggage handler since it was not her intent to kill him.
Further, she did not knowingly kill him because it was not certain that the baggage handler’s death would result from
Wilma’s actions. However, because there was a substantial and unjustified risk that Wilma’s actions would result in
someone’s death or serious injury, she has acted recklessly.
C. Recklessly. A person acts recklessly with respect to a material element of an offense when he consciously
disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct.
The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct
and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that
a law-abiding person would observe in the actor’s situation.
D. Negligently. A person acts negligently with respect to a material element of an offense when he should be aware
of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk
must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose
of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a
reasonable person would observe in the actor’s situation.
Criminal negligence must be of a wanton and willful character. In Carosi v. Commonwealth, the defendant let her children
play where her boyfriend had drugs. The court separated the children’s access to chemicals under the sink and knives in
the kitchen from the access to cocaine and ecstasy).
3)
Culpability Required Unless Otherwise Provided. When the culpability sufficient to establish a material element of an
offense is not prescribed by law, such element is established if a person acts purposely, knowingly or recklessly with
respect thereto.
Recklessness is the default rule under the MPC. There is no reason to establish recklessness as the default rule, but
recklessness, unlike negligence, establishes some awareness. Therefore, most jurisdictions are uncomfortable dropping
to a default level of negligence, where the defendant can be charged without being aware of her conduct.
4)
5)
6)
7)
8)
Prescribed Culpability Requirement Applies to All Material Elements. When the law defining an offense prescribes the kind
of culpability that is sufficient for the commission of an offense, without distinguishing among the material
elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose
plainly appears.
Substitutes for Negligence, Recklessness and Knowledge. When the law provides that negligence suffices to establish an
element of an offense, such element also is established if a person acts purposely, knowingly or recklessly. When
recklessness suffices to establish an element, such element also is established if a person acts purposely or
knowingly. When acting knowingly suffices to establish an element, such element also is established if a person acts
purposely.
Requirement of Purpose Satisfied if Purpose Is Conditional. When a particular purpose is an element of an offense, the
element is established although such purpose is conditional, unless the condition negatives the harm or evil sought
to be prevented by the law defining the offense.
Requirement of Knowledge Satisfied by Knowledge of High Probability. When knowledge of the existence of a particular fact is
an element of an offense, such knowledge is established if a person is aware of a high probability of its existence,
unless he actually believes that it does not exist.
Requirement of Wilfulness Satisfied by Acting Knowingly. A requirement that an offense be committed wilfully is satisfied if
a person acts knowingly with respect to the material elements of the offense, unless a purpose to impose further
requirements appears.
- 17 -
9)
Culpability as to Illegality of Conduct. Neither knowledge nor recklessness or negligence as to whether conduct
constitutes an offense or as to the existence, meaning or application of the law determining the elements of an
offense is an element of such offense, unless the definition of the offense or the Code so provides.
Culpability as Determinant of Grade of Offense. When the grade or degree of an offense depends on whether the offense is
committed purposely, knowingly, recklessly or negligently, its grade or degree shall be the lowest for which the
determinative kind of culpability is established with respect to any material element of the offense.
3.
Does a mistake or accident negate the defendant’s mental culpability?
A mistake of fact or law is a defense if it negates a mental state required to establish a material element of the
offense. This means, for example, that the defendant could not have intended to have sex with a minor if he
honestly believed that she was over the age of consent. Note that mistaking a girl of age 13 for age 14 would
not negate the mental element of the crime. Believing a girl of age 18 is age 13 would constitute an attempt.
A mistake could negate an intentional crime but still result in a reckless or negligent crime. Whether the
mistake was reasonable is irrelevant. The defendant need only make the mistake in good faith. However, the
more reasonable the mistake is, the more likely the jury believes the mistake was made in good faith.
In Cheek v. United States, this is the issue. The defendant’s belief that he needn’t pay income taxes need not be
reasonable, it must be in good faith. But the court then takes the analysis the further step. Does this mistake
negate the defendant’s level of mental culpability? The court found that the fact that the defendant believed
the laws were unconstitutional was insufficient to negative the culpability. It is not a defense to purposefully
engage in proscribed conduct because you believe the law is unconstitutional. The defendant could have paid
his taxes, filed his refund, and, if denied, challenged the denial. Here, he instead did not pay the taxes.
MPC § 2.04 IGNORANCE OR MISTAKE
1)
2)
3)
4)
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
b. the law provides that the state of mind established by such ignorance or mistake constitutes a defense.
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.
A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based
upon such conduct when:
a. the statute or other enactment defining the offense is not known to the actor and has not been
published or otherwise reasonably made available prior to the conduct alleged; or
b. he acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid
or erroneous, contained in (i) a statute or other enactment; (ii) a judicial decision, opinion 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.
The defendant must prove a defense arising under Subsection (3) of this Section by a preponderance of
evidence.
Coleman’s “analytical approach to just about everything that we do in criminal law”
1. Identify the mental state required for each element of the offense.
- 18 -
2. Ask whether the mental state can be proved beyond a reasonable doubt in light of the defendant’s
ignorance or mistake.
Example: People v. Ryan
• “knowingly and unlawfully possess six hundred twenty-five milligrams of a hallucinogen”
• Issue: the defendant is aware of the volume of mushrooms, but not of the volume of the
hallucinogenic substance within. Must the defendant have some level of mental culpability to the
volume?
o Was the statute intended to be strict liability?
o If not, how do we interpret the required level of mental culpability for the volume? The
volume is clearly a material element of the offense. The court uses a carry-through to apply
“knowingly” to the volume. The court also could have read the default level of “reckless”
into the statute.
Mistake of law. Typically, a mistake of law is not an available defense. The defendant is presumed to be
aware of any statute passed in the typical way in the state. Therefore, this is an affirmative defense. For
example, in United States v. Baker, the defendant was still guilty of violating a statute that he was unaware was
passed. This does not extend to non-governing statutes. For example, in People v. Bray, the defendant was
charged with being a felon in possession of a firearm. The defendant made a mistake of law as to whether he
was a felon, not to what the statute on felon in possession was. Additionally, a defense of mistake is available
if knowledge of the law is a part of the statute (e.g., knowingly broke the law). In Regina v. Smith, the
defendant’s mistake about the civil legal definition of fixtures caused him to damage his landlord’s property.
This mistake was a valid defense.
You can also make a mistake of law if it was reasonable to trust the statements of an official. The person must
be responsible for interpreting the law under which you were charged. The person must be acting in their
official capacity. In Hopkins v. State, the defendant relied on the statements of his neighbor, the State’s
Attorney, as to whether his signs violated a statute criminalizing advertising for marriages. In Long v. State, the
court came to the opposite conclusion. The defendant relied on his attorney’s advice about the validity of his
prior marriage. The defendant made a bona fide effort to abide by the law and acted in good faith in reliance
on the results of those efforts. It does not further any of our reasons for punishment to reject his ability to
argue a defense. It doesn’t discourage seeking out the law; it actively encourages it. Further, to hold him
accountable would not be deterrent. How would the model citizen act differently? In Commonwealth v.
Twitchell, on the other hand, the defendants relied on a pamphlet summarizing the statements of Attorney
General. The statements indicated they would not be criminally responsible if their child died while receiving
alternative, religious treatments. To allow public officials to misconstrue the law and then hold the defendant
responsible for a violation would be “entrapment by estoppel.” Note that the “reasonable person” in this
standard, for the Twitchell case, is an accredited practitioner of the religious rite, as provided in the statute.
There were two reasonable reliances: (1) the Twitchell’s on the person who compiled the pamphlet within
their Church, and (2) the person who compiled the pamphlet on the Attorney General’s statements.
(i)
(ii)
(iii)
(iv)
Person with authority (q of law)
Acting in their official capacity (q of law)
Reasonable person would have interpreted like defendant (q of fact)
And defendant reasonably relied on misinterpreted statements (q of fact)
- 19 -
4.
Was the defendant capable of that level of mental culpability?
The prosecution must prove the mental culpability of each material element of the offense. The defendant
has a due process right to produce any relevant exculpatory evidence. In Hendershott v. People, the court held
that the defendant could supply evidence that he was suffering from “adult minimal brain dysfunction” at the
time of his third-degree assault of his wife, and that, as a result of this disease, he was incapable of voluntary
intent. The disease caused him to act automatically in response to stimuli. If he could not offer the evidence,
it would relieve the prosecution of its burden of proving his intent.
Mental capacity. Some states allow evidence of a lack of mental capacity to negative the level of mental
culpability for all crimes. Others limit to “purposeful” and “knowledge” crimes. The MPC sides with the
former. The line between mental incapacity and insanity is important. Someone who pleads insanity may
understand their actions, but they are incapable of believing they are societally wrong. Someone who pleads
mental incapacity denies that the defendant was capable of the level of mental culpability at all. For example,
because of the defendant’s mental disease, she was incapable of intention, or of knowing of an attendant
circumstance. The threshold issue is what counts as a mental disease or defect.
Voluntary intoxication. Typically, a defense of voluntary intoxication can be available for specific intent
crimes, because these crimes require a stricter level of awareness in the moment. The defendant must be so
intoxicated that she could not have had the intent to commit the offense. In State v. Cameron, the defendant
did not meet the very high bar of intoxication, in part because she was able to recall details of the attack. In
State v. Warren, the court notes that recklessness should also be included. We won’t really need Montana v.
Egelhoff, which Coleman thinks is illegitimate. In the decision, Justice Ginsburg held that the state could
remove a defense of voluntary intoxication. Instead of asking whether the state had removed a defense
(which would violate due process), Justice Ginsburg asked whether the state of Montana was allowed to
redefine the levels of mental culpability for the offense. Ginsburg decided they could.
C. Causation
1. But-for: materially necessary for the result to occur
2. Proximate: the tie between the mental culpability and the result
a. The natural and probable consequence of the conduct
b. The foreseeable consequence of the conduct
c. Not attenuated by low probability events
3. Intervening acts (voluntary or temporal): can they break but-for or proximate link?
1.
Why do we punish causation?
Our framework for just punishment is based on choices. Defendants who choose to act with an awareness of the
wrongness of their actions is worthy of punishment. The utilitarian framework of punishment focuses on the
maximizing of social good. Where the existence of a punishment can change the incentives to abstain from or engage in
wrongful conduct, it can contribute to social good. Notably, the incarceration of these individuals is a social harm that
needs to be outweighed. The retributive framework of punishment focuses on whether the defendant’s choice to act in
a wrongful manner permits a punishment in keeping with the inviolability of their human worth. For the purposes of
this analysis, I will consider the “mixed” framework, whereby retributive theories of justice are a limit on a utilitarian
punishment scheme.
Punishment for causation does not fit neatly into either theory of justice. From a utilitarian perspective, deterrence and
incapacitation depend almost entirely on the mental state of the defendant. In an ideal world, a defendant should only
be punished if they intended the proscribed act. Punishment cannot deter the unintentional causation of a result.
Further, someone who is deterred by punishing the attempt to commit the crime will not be further deterred if actually
- 20 -
causing the result (which the attempter was trying to do) is similarly punished or more steeply punished. Additionally,
someone who chooses to cause a bad result is not less deserving of punishment than someone who actually causes that
result.
However, we naturally believe there to be some difference between creating a risk of the harm and causing actual harm.
Causation is an indisputable fact, while the risk is speculative and intangible. However, the explanation that punishment
for causation “feels right” is unsatisfying. Therefore, we have placed limits on causation. For example, it is clear that, in
every murder, but for the defendant’s mother’s actions, the murder would not have occurred. However, the mother
surely does not deserve punishment.
2.
But-for causation.
What is but-for causation. At its most basic level, the question of causation is whether the defendant’s conduct was
necessary to cause the proscribed result. Note, however, that the question is whether the victim would have been
harmed as she was. Thus, except for the limits laid out in MPC § 2.03, the defendant is not liable if her conduct would
have resulted in a death one way, but results in a death in a totally unforeseen way. This could be simplified to factual
causation.
Absurd results. However, but-for causation may be incredibly attenuated. For any given result, there are thousands of
necessary conditions. Between a necessary condition and the result, there are often other necessary conditions that are
so accidental and fortuitous that it is unlikely that the defendant was aware that his conduct would cause the result. The
classic example is that a murderer’s parents are always necessary for the murder to have taken place. Tortious notions of
causation would hold the manufacturer of a bullet responsible for a shooting, or someone who double parked
responsible for the death of someone hit by a car while walking around the car.
Where but-for causation fails. But-for causation is a low bar, but it nonetheless can fail to be cleared. In Regina v.
Martin Dyos, the defendant struck the victim in the head. The victim died. However, an autopsy revealed a second blow
to the head. Either wound would very probably cause death. There was no way to determine which wound came first.
The second wound would have quickened his death and would therefore have been the but-for cause of death. If the
second blow could be shown to have come from a second assailant acting with the defendant, the defendant would be
guilty. If the second blow came from the victim hitting the ground, that collision was caused by the defendant.
However, it is not clear where the second blow came from. Therefore, the failure to determine which blow came first
casts a reasonable doubt on whether the defendant was the but-for cause of death.
Simultaneous sufficient conduct.
• Ordinary concurrent cause: Two actors independently act. The actions are individually necessary for the
proscribed result, but neither is sufficient. Each requires the other. Both are liable. Example: the flagman and
the conductor in R. v. Benge.
• Symmetrical overdetermination: Two actors independently act. The actions are individually sufficient, and so
neither is necessary. Both are liable. Example: shooting simultaneously.
• Asymmetric overdetermination: one factor is sufficient, the other factors not independently sufficient or
necessary (e.g., one mortal wound and one surface wound, but the victim dies by bleeding out.).
• A pre-empting sufficient factor ascribes liability on the pre-empting cause and no liability on the pre-empted
cause.
Scholastic tools. The “but-for” world is a good tool in determining a causation. However, this casts a wide net.
Professor Glanville Williams included an additional requirement: that the conduct was the imputable cause. This
method is endorsed in Regina v. Benge. Richard Taylor further notes that the relevant cause is such that the totality of
conditions is at once sufficient for occurrence if it is met.
Necessary and sufficient conditions. In Regina v. Benge, the defendant negligently tore up railroad tracks and the train
derailed. The defendant argues that but for the negligence of the flagman and the conductor of the train, the
- 21 -
defendant’s negligence would not have caused the results. However, it would be an absurd result to require that none of
them could be guilty. The relevant standard is whether the defendant’s actions were the substantial, material cause of the
result.
While the other parties’ negligence could have mitigated the defendant’s negligence, the defendant’s negligence made the
result impending without the intervention of others. We can think of the defendant’s conduct as necessary but
insufficient. Once the defendant acted negligently, the flagman and the conductor both had duties. Negligence on the
part of both parties was required for the result. Therefore, neither’s negligence was necessary for the result. However,
either’s negligence was sufficient to cause the result.
Refusal of treatment. This principle is also in Blaue. There, the defendant stabbed the victim. The victim refused a
blood transfusion and died. The victim could have lived had she accepted the treatment. However, had medical
treatment been unavailable, the victim would have died. The defendant should still be responsible for her death, unless
(i) the injury was so trifling that is was not foreseeable that the victim would die, or (ii) some other act (such as gross
negligence by the doctor) caused the death first. For example, in People v. Stewart, the doctor was treating the victim’s
stab wound, went to treat an incarcerated hernia, and in the process, the anesthesiologist committed gross negligence
and the victim died.
3.
Limits on causation.
Theory. H.L.A. Hart and A.M. Honoré argue that causation is never conceived as a pure but-for theory. We have
natural limits on when some precedent causes some antecedent. First, the defendant must have been able to foresee,
with ordinary care, the consequent of her actions. For example, while smoking causes lung cancer, evidence that the
defendant was unaware that smoking caused cancer supports acquittal. Second, the voluntary action of another person
can negate the causal relationship between the precedent and the consequent. The defendant cannot be said to be
culpable if the result of her choice is dependent on the subsequent choice of an unrelated actor. This principle has
limits. The defendant can override the will of a subsequent actor, such that she is irresponsible for her choice. The
defendant can restrict the potential choices of the subsequent actor. For example, in State v. Levin, the defendant cut the
victim off. The victim chose to drive the car off the road, but this subsequent voluntary act cannot be said to be
unforeseeable. Third, the consequent must regularly follow the antecedent. For example, falling out of a tree does not
typically follow from someone throwing a brick out of a window.
Example. Consider the case of the woman who was robbed at gunpoint. She died from a heart attack while testifying.
The state prosecuted the robber for her death, arguing that the heart attack was the result of the trauma of the
defendant’s robbery. However, it’s clear that there were many voluntary acts by the victim and by other participants in
between. For example, the prosecutor made the choice to put the victim on the stand, where she had to relive these
moments. However, this may be a dependent intervening act, because her testimony was a reasonably foreseeable result
of the robbery. Additionally, the very long stretch of time strains the credulity that the heart attack would be a
foreseeable result.
Fine-grained approach. The Commentary to the MPC asks not whether the cause was necessary for the result in
abstract, but whether the cause was necessary for the result where, when, and how it occurred. Causes must accelerate
the result.
• Violence.
Under the common law, a defendant could only be charged with a result crime if the defendant committed some amount
of battery on the victim. This established the causal link. Additionally, there was a year-and-a-day rule for murders and
other limitations on assigning causation. In Hubbard v. Commonwealth, we have a common law limitation on but-for
causation. While the defendant was the but-for cause of the victim’s heart attack, the court noted that the death was not
the result of a corporal blow or injury.
•
Proximate cause.
- 22 -
Mental culpability. Crimes that require causation are still grounded in the notion that a criminal cannot be punished if
she is unaware of her crime. Therefore, for a crime of causation, we must understand that the defendant’s action was a
necessary and probable cause of the result and that the defendant was aware that her actions could cause the death.
Professor Coleman used the example of dominos and a pinball machine. While the defendant can be the but-for cause
of a result in both, the result of the dominos is foreseeable, while the result of the pinball machine isn’t.
Definition. The result was the natural and probable, foreseeable result of the conduct. For example, in Letner, the
defendant shot towards a boat full of people. The people jumped out and drowned. The defendant intended to scare
the people. It was a natural and probable consequence of the scaring that the people would jump out and drown.
Similarly, in Commonwealth v. Rhoades, the court struck a jury instruction that the defendant’s act must have been a
“contributing cause.” This instruction removed the requirement of proximate causation. The jury should have reviewed
whether the firefighter’s death occurred in a natural and continuous sequence from the defendant’s setting of the fire.
Tests. Proximate causation is viewed from the perspective of the defendant. Should the defendant have been aware of
a probability that her conduct would cause the result? The natural and probable consequence standard could be
reframed as a "too remote" test. This test can fail if the result was unforeseeable. This test can also fail if the result was
foreseeable but the probability of the result happening was very low.
When attempting to determine whether the defendant is mentally culpable, we can turn to two tests. First, was the harm
foreseeable to the defendant? If so, the defendant acted recklessly. If the defendant should have foreseen the result, the
defendant acted negligently. Second, was the harm that occurred the type of harm the risk of which made the defendant
negligent. If so, the defendant was mentally culpable for the result.
Proximate causation can be overcome if there are a large number of events in the chain between cause and effect.
You are still liable if you had the same mental culpability but you enacted a similar harm on a similar victim where the
actual harm is not too remote. A remote event is one attenuated by necessary, low probability events. The effect is what
commonly would have occurred.
In Baker v. State, under the strict liability statute, the fact that he was driving while drunk made him liable for the natural
and probable results thereof (not necessarily but-for the unlawful conduct). This is not a popular opinion. Judges can
see themselves in that situation. The defendant was drunk, but the drunkness wasn’t responsible for the result. The
court held that you have to be engaged in unlawful conduct and the result must occur.
•
Intervening events.
Definition. An intervening event is an event that breaks the causal chain between the defendant’s conduct and the
result, so that the result was no longer the but-for cause of the conduct. These breakages can be the voluntary actions of
another, or they can be the lengths of time during which the result became more attenuated.
Stanford definition. Under the intervening human actor branch of the common law’s superseding cause doctrine,
there is no liability if a subsequent human actor (rather than a natural event) intervenes to “break the causal chain”
otherwise existing (because of counterfactual dependence) between the harm and the defendant’s earlier act, where that
intervening actor:
a)
b)
c)
d)
e)
Acts subsequently to defendant’s act, and is thus not a co-causer of the harm.
Does an act that is causally significant with respect to the harm.
Acts independently of any motive to so act supplied by the defendant.
Acts with great culpability in bringing about the harm (usually intentionally or sometimes recklessly, but not
merely negligently, with respect to the harm).
Acts voluntarily in the narrow, technical sense of the law, namely, the relevant bodily movements are not
reflexive, done while asleep, unconscious, in shock, under hypnosis, or otherwise not the product of the
defendant’s will.
- 23 -
f)
g)
Acts voluntarily in the sense that he is not coerced by threats, by natural necessity, or by the compunctions of
legal duty.
Is a responsible agent (not very young, insane, or very drunk).
Voluntary act. In Commonwealth v. Root, there was a drag race on a two-lane highway. The victim tried to pass the
defendant and was struck by an oncoming car and died. The defendant was charged with involuntary manslaughter,
which requires reckless and unlawful conduct that was the direct cause of death. Drag racing is reckless. However, the
question is if the defendant’s conduct (drag racing) was the direct cause of death. In Levin, the defendant caused the
victim’s conduct (the defendant swerved and ran the victim off the road). Here, while the drag racing was dangerous,
the victim made an independent choice to try to pass the defendant. The relevant standard is the voluntariness of the
action.
Involuntary acts. The defendant is guilty if she starts a chain of causation that foreseeably leads to death. The test is
whether the defendant is responsible for the victim’s act, either by depriving her of the mental capacity or the practical
opportunity to make a better choice. In United States v. Hamilton, the defendant inflicted injuries that could have been
fatal without medical attention. The doctors put tubes in that are necessary for him to breath. But for the tubes, the
victim may already be dead. However, the victim’s death had two contributing factors: the nurse not tying him down
and the victim pulling the tubes out. First, the defendant’s action sufficient for death but for the intervening action of
medicine (and therefore, the failure to provide care adequate to save the victim is irrelevant unless it was grossly
negligent). Second, the victim pulled out the tubes in an agony caused by the defendant. In Stephenson v. State, the
defendant’s continuing dominion was relevant. The defendant constrained the victim’s beliefs of her choices.
Therefore, she was mentally irresponsible for her choosing to commit suicide. Her suicidal ideations were the direct and
proximate result of the defendant’s treatment.
Defendant’s intervening act. In Regina v. Church, the defendant thinks he killed the defendant and then he threw her in
the river. She was alive and drowned. The defendant was the but-for cause; throwing her in the river, especially after
beating her, was a materially necessary act for her drowning. Was it natural and probable that she would drown if he
threw her in? This turns on the defendant's awareness of the possibility that she was still alive. The defendant is guilty
of attempting to kill her. He is guilty of attempting to dispose of a body. But it is unclear that he in fact had the specific
intent to kill her when he threw her in the river.
Necessity of an intervening act. The fact that the victim could have been saved through the actions of another
cannot be an intervening act. For example, in Regina v. Blaue, the victim’s choice not to accept treatment could not be
seen as an intervening act unless the injury inflicted by the defendant was trifling. There was no duty to accept that care.
For example, a victim who was on life support for four years would have died but for that support. The family’s choice
to remove that life support cannot reasonably be seen as an unforeseeable, voluntary intervening act.
•
Duties
There is typically no liability for causing something through one’s omission. However, like in actus reus, if the defendant
had a duty to act, an omission is an overt act. In Commonwealth v. Levesque, there was a duty that arose out of creating the
risk. The failure to meet that duty (warning someone of the fire) reasonably and naturally led to the death of the
firemen. Alternatively, they had intentional conduct (walking past phones) that created a risk of death (shown by their
concern for their pets).
The manner of the result is important. When I throw a cinder block off of the roof, it is foreseeable that a death would
occur from it hitting someone on the head. It is not foreseeable that it would cause a car to swerve, hitting a tree, and
knocking someone over.
- 24 -
4.
Causing a different result.
MPC §2.03: Causal Relationship
2. When purposely or knowingly causing a particular result is an element of an offense, the element is not
established if the actual result is not within the purpose or the contemplation of the actor unless:
a. the actual result differs from that designed or contemplated, as the case may be, only in the respect
that a different person or different property is injured or affected or that the injury or harm designed
or contemplated would have been more serious or more extensive than that caused; or
b. the actual result involves the same kind of injury or harm as that designed or contemplated and is not
too remote or accidental in its occurrence to have a [just] bearing on the actor’s liability or on the
gravity of his offense.
3. When recklessly or negligently causing a particular result is an element of an offense, the element is not
established if the actual result is not within the risk of which the actor is aware or, in the case of negligence, of
which he should be aware unless:
a. the actual result differs from the probable result only in the respect that a different person or different
property is injured or affected or that the probable injury or harm would have been more serious or
more extensive than that caused; or
b. the actual result involves the same kind of injury or harm as the probable result and is not too remote
or accidental in its occurrence to have a [just] bearing on the actor’s liability or on the gravity of his
offense.
This analysis looks to transferred intent.
2)
Homicide Offenses
a. How do we determine which homicide statute to apply?
CONTINUUM OF CRIMINAL HOMICIDES IN WHICH THE KILLER (DEFENDANT)
INTENTIONALLY CAUSES THE DEATH OF ANOTHER PERSON
Type of Criminal Homicide
Murder (first degree)
Mental Culpability Required
Defendant purposefully causes the
death of another person, without
provocation.
Murder (second degree)
Defendant purposefully causes the
death of another person, without
provocation.
Defendant purposefully causes the
death of another person following a
provocation sufficient to cause a
reasonable person to lose self‐
control and act rashly.
Voluntary manslaughter
Other Factors
Prior to the act that causes death, the defendant
premeditates (devises a plan to cause the death) and
deliberates (thinks about the plan before carrying it out).
Relevant circumstantial evidence: (1) facts
indicating planning; (2) facts indicating a motive for
killing; and (3) killing in a manner that reflects
forethought.
The act that causes the death occurs in the heat of the
moment, without any preconceived plan to kill and
without deliberation.
Provocation is anything that a jury finds was sufficient to
make the triggering event irresistible to an ordinary
person. The period between the provocation and the
homicidal act cannot be too long to permit a reasonable
person to cool off.
CONTINUUM OF CRIMINAL HOMICIDES IN WHICH THE KILLER (DEFENDANT)
UNINTENTIONALLY CAUSES THE DEATH OF ANOTHER PERSON
Type of Criminal Homicide
Murder (first degree)
The Felony Murder Rule
Mental Culpability Required
Defendant causes the foreseeable death of
another person in the course of committing or
attempting to commit certain dangerous
felonies; malice is provided by the felony.
- 25 -
Other Factors
The defendant is strictly liable for any death
that is (1) not too remote or accidental in its
occurrence and (2) not too dependent on the
volitional act of another to make it unfair to
hold the defendant liable. (Causation analysis)
Murder (second degree)
Defendant recklessly causes the death of
another person, with implied malice.
Involuntary manslaughter
Defendant either recklessly or negligently
causes the death of another person
The death occurs because of an act on the
defendant’s part that is inherently dangerous
to life; the defendant is aware of the risk of
death from his act; and the defendant ignores
the risk to engage in the conduct under
circumstances that reflect indifference to the
value of human life that may be taken.
For involuntary manslaughter based on
recklessness, the defendant engages in reckless
conduct that is inherently dangerous to human
life and ignores the risk that the conduct may
cause the death of another person under
circumstances that an ordinary person would not have
disregarded the risk. For involuntary
manslaughter based on negligence, the
defendant engages in conduct that is
inherently dangerous, but fails to see the risk
under circumstances in which a reasonable
person would have perceived the risk.
Malice. The difference between murder and manslaughter is “malice.” Malice is an intention to cause or a willingness
to undertake a serious risk of causing the death of another when that willingness is based on an immoral or unworthy
aim. Malice can be either express or implied. Murder, or malice, can arise from
Express
(1) The purpose to cause death;
(2) Intent to inflict serious bodily harm;
Implied
(3) Extreme recklessness with regard to the serious risk of harm to another’s life, where the risky action manifests
so unworthy or immoral a purpose as to suggest callous indifference to human life; or
(4) Felony-murder rule: a willingness to undertake even a very small risk of death in committing a serious felony.
The malice is supplied by the serious felony.
State v. Myers required the state to prove malice. Malice is understood as a condition of the mind manifested in intent to
do a wrongful act without justification or excuse. The court in Myers worried that, because second-degree murder
required malice, excluding the proving of malice from the definition of the crime would unfairly shift the burden of
proving absence of malice to the defendant. In State v. Ryan, the court understood malice as some separate moral factor
independent of intent. In Burlison, the court allowed the shifting of a burden of production onto the defendant for
justification. This implies that malice is largely understood from an intent to kill or a reckless disregard for human life,
leaving it to the defendant to negate malice by showing provocation, justification, or excuse.
Defenses. Homicide involves causing the death of a human being. Therefore, any defense that establishes that the
defendant did not cause the death of an individual negates a homicide offense. For intentional homicides, the defendant
can rebut intent. The defendant can argue that the defendant’s act wasn’t voluntary. The defendant can argue that the
defendant lacked the capacity to commit the crime. This includes voluntary intoxication. Finally, the defendant can
argue that she made a mistake of fact that negates the purpose element of the murder.
Decision tree.
(1) Did the defendant intentionally commit the homicide?
a. If yes, was the defendant provoked?
i. If no, did the defendant act with premeditation and deliberation?
1. If yes, the defendant can be charged with first-degree murder.
2. If no, the defendant can be charged with second-degree murder.
ii. If yes, the defendant can be charged with voluntary manslaughter.
b. If no, did the defendant show a wanton and reckless disregard for human life?
i. If yes, the defendant can be charged with reckless second-degree murder.
- 26 -
ii. If no, but committed during a major felony, the defendant can be charged with first-degree
murder.
iii. If no, but committed recklessly or highly negligently, the defendant can be charged with
involuntary manslaughter.
California Penal Code.
• Murder is the unlawful killing of a human being . . . with malice aforethought.
• Malice may be express or implied.
o It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow
creature.
o It is implied when there is no considerable provocation or where the circumstances show an
abandoned or malignant heart.
• First-degree is felony murder (enumerated) and any other kind of willful, deliberate, and premeditated killing.
• Manslaughter is unlawful killing without malice.
o Voluntary is upon a sudden quarrel or heat of passion
o Involuntary is without due caution or circumspection.
o Vehicular is third class.
b. Why do we gradate homicide?
Premeditated murder. To a retributivist, the premediating killer deserves greater punishment. There are more
obstacles in the path of the perpetrator, including one’s conscience. The person had the express ability to decide not to
commit the offense. The person chose others. To a utilitarian, the deliberation indicates that the defendant is
particularly dangerous.
Provocation. To a retributivist, “malice” allows the court to separate those homicides where the defendant intended to
act in a wrongful manner. Thus, malice is slightly different from intent. Retributivists acknowledge circumstances
where the defendant commits intentional homicide without intending to act in a wrongful manner. Justifications like
self-defense and choice of evils acknowledge that the defendant’s intentional conduct is not wrongful. A defense of
provocation asserts that the defendant acted without self-control. While justifications acknowledge full awareness and
understanding of the wrongfulness of the defendant’s actions and the ability to choose that action, a defense of
provocation asserts that a defendant is not blameworthy for the death because the loss of self-control, not the
defendant’s choices, caused the death. From a utilitarian’s perspective, there is little deterrent effect in punishing people
who lost control. These defendants are unlikely to offend again absent another provocation.
The “objective” standard for provocation establishes that society as a whole believes that the defendant would
reasonably have been provoked into homicide by the “trigger.” Thus, the homicide was less harmful, and society sees it
as less of a social ill.
c. Intentional Homicide
1.
First-degree murder: premeditation and deliberation.
Degrees above intent. Legislatures created a distinction between first and second-degree murder. Therefore, the court
sees premeditation and deliberation as substantial steps beyond a malicious intent to kill without provocation.
Premeditation and deliberation must go beyond wrongful intent to kill. We could interpret the bar for a “preconceived
design” to be high. The court seeks to punish those whose cool planning indicates an entirely new level of criminality.
Premeditation. The defendant (i) devises a plan to cause the death and (ii) decides to carry out the plan.
• The defendant thought before acting to the idea of taking a human life and [reached] a definite decision to kill.
• The court can look to the defendant’s typical nature. Were the defendant’s actions in these circumstances a
deviation from her nature?
- 27 -
Deliberation. The defendant thinks twice about the decision to carry out the plan. “The accused acted with
consideration and reflection upon the preconceived design to kill; turning it over in the mind, giving it second thought.”
Factors to consider.
(1) Planning: what the defendant did before the killing that indicates activity directed towards the final result.
(2) Motive: what the defendant’s prior relationship was with the victim.
(3) Manner of killing: whether the way the killing was orchestrated indicated a “preconceived design.”
Any of these factors (maybe not the second) you could convict someone with if the factor was strong enough.
Normally, you need all three. In People v. Anderson, the defendant brutally murdered his girlfriend’s daughter. There was
evidence that the defendant attempted to hide the homicide afterwards. However, there was no evidence that indicated
the defendant premeditated and deliberated the murder. The manner of the killing was brutal. It lacked any apparent
motive.
In State v. Forrest, the court laid out additional criteria to consider in whether the son was guilty of premeditated murder
of his father. The defendant killed his father. He cocked the gun before each shot. It was irregular for him to bring his
gun. He made statements of intent beforehand.
(1)
(2)
(3)
(4)
(5)
(6)
Want of provocation
Conduct and statements before killing.
Threats and declarations of defendant before and during the occurrence that caused death.
Ill-will or previous difficulties between the parties.
Dealing of lethal blows after the victim is helpless.
Killing was done in a brutal manner.
Note that there is a significant contradiction between factor (3) in the Anderson case and factor (6) in the Forrest case. At
the end of the day, this analysis is subjective.
Proving premeditation. There is rarely any direct evidence of premeditation or deliberation. Premeditation can be
found in the totality of the circumstances.
• First, what did the defendant do?
• Second, what did the defendant know when the defendant acted?
• Third, did the defendant have the opportunity to deliberate?
The question in U.S. v. Watson is whether it was reasonable to infer that the defendant reached a definite decision to kill
the police officer. In this case, it is impossible, on the facts, to infer what is happening in the defendant’s mind. The
time after grabbing the gun was very quick. The court looked to the defendant’s choice not to flee when he had the gun.
However, Professor Coleman disagrees with this decision.
Model Penal Code. The Model Penal Code has removed the distinction between first- and second-degree murder,
arguing that the judge can solve these issues through discretionary sentencing, and that the originating purpose for firstdegree murder was to isolate those cases for which capital punishment was automatic. It may be worthwhile to review
the legislative intent to see how strictly the legislature has desired to create a distinction.
Defense: Elapsed time. Elapsed time is not dispositive, but there must be sufficient time to deliberate. However,
courts have consistently held that premeditation and deliberation can occur in an instant.
Defense: Capacity to premeditate. Just as a defendant may be able to argue that they lacked the capacity to form the
relevant level of mental culpability, the defendant can argue that they lacked the capacity to premeditate. In
Commonwealth v. Gould, the defendant argued that he delusionally believed that he was a Messiah and that he had to kill
the girlfriend because she was “impure.” This evidence was insufficient to show that he was incapable of discerning
right and wrong, but it could show that he was incapable of premeditating her murder. Voluntary drug or alcohol
intoxication is also admissible to negate premeditation.
- 28 -
2.
Second-degree murder
Intent. The defendant must have the specific intent to kill. In Francis v. Franklin, the defendant was a prisoner who
escaped from a dental visit, took a hostage, and shot a man through a door when the man refused to give the defendant
his car. The jury was charged to presume that the defendant intended the natural and probable consequences of her
actions. This instruction shifts the burden of rebutting that presumption onto the defendant. The prosecution must
prove not only that the defendant acted intentionally and that the defendant foreseeably caused the victim’s death but
also that the defendant intended to kill the victim.
Transferred intent. If not too attenuated, the intent of the defendant to kill one victim can be transferred to another if
the defendant kills the other instead of the intended victim. MPC § 2.03(2): When purposely or knowingly causing a
particular result is an element of an offense, the element is not established if the actual result is not within the purpose or
the contemplation of the actor unless: . . . the actual result differs from that designed or contemplated, as the case may
be, only in the respect that a different person . . . is injured or affected . . .
3.
Voluntary manslaughter: provocation
Defendant has burden of production and persuasion.
Mitigation. Voluntary manslaughter is a mitigation of murder. Both malice and intent to kill are prerequisites for
murder. The defendant has still intentionally killed the victim. However, the defendant has acted without malice. The
defendant has been provoked into losing self-control. That lack of self-control is what caused the death. The
defendant’s homicide is as much attributable to the extraordinary nature of the situation as to the moral depravity of the
actor.
Malice. The distinction between murder and manslaughter is the absence of malice in manslaughter. Malice requires
that the mind acted under the sway of reason. Provocation could then be defined as an occurrence sufficient to negative
malice by overcoming the defendant’s self-control. An act can proceed from passion or from malice; it cannot proceed
from both.
Partial justification and excuse. There are two rationales for a provocation defense.
• Partial justification: The victim’s actions partially justified the defendant’s response, because the defendant was
provoked into losing self-control. People v. Walker is an example (the Chicago stoop mugging); there was not
sufficient justification to warrant self-defense but it was sufficient to excuse the defendant to some degree for
having lost control.
• Partial excuse: The victim’s attitude towards the victim was sufficient, in the jury’s eyes, to understand that the
defendant lost control, but not sufficient to show the defendant was irresponsible for her actions. The
defendant could make a mistake and be excused.
It is likely insufficient to argue only partial excuse. The result would be absurd, allowing the delusions of a defendant to
justify the loss of self-control when, for example, seeing two women have sex (Commonwelath v. Carr).
Approach. Look for the trigger (objective) and the defendant’s passion (subjective). Then look for the time to regain
self-control (cooling-off).
• Objective test: This used to be a question of law. Did the reason fall in one of the five common law
categories? Now it is a question of fact. The reason for the loss of self-control can be reasonably understood by the jury to be
something that would cause a reasonable person to lose control. It is understandable why the defendant lost control,
because any reasonable person in that situation would have lost control. Note that this isn’t a question about
whether any reasonable person would have killed, but of loss of self-control. This is a question of adequacy.
• Subjective test: The defendant actually lost self-control. The defendant did not have control of her actions.
You can't use provocation to carry out a homicide that you had planned. You can't decide that you're going to
kill the victim and then take advantage of a situation that would have caused a reasonable person to lose
control, but you did not lose control. That would be first-degree murder.
- 29 -
Reasonable person. The MPC sets the objective test as follows: “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.” This is a pretty loose standard. California seems to tacitly have an “objectively reasonable” standard.” The
court can step in, as a matter of law, and establish that some claims of provocation are inappropriate. For example,
racism is not an adequate basis for provocation.
Both of those things have to be true: (i) that the defendant had the characteristic and (ii) that it was a factor in what
happened, and it was a factor in a way that is understandable. Cultural evidence may be relevant.
We have to view reasonable person standards through the lens of blameworthiness. The question is whether the
characteristic we choose is relevant, within our society, to understanding the reasonableness of the defendant’s actions.
Thus, we might understand one’s status as a domestic abuser to be an unreasonable basis for changing which actions are
reasonable. But if we understand a Native American family who has suffered discrimination to be less likely to take their
child to the doctor for fear of her being taken from them, that might be more relevant, because it diminishes the
blameworthiness of their negligence.
How provocation works.
1) Something triggers the defendant, who loses control and commits the homicide.
2) At the time that the homicide occurs, the defendant is in the grasp of whatever it was that caused him or her
to lose control.
3) She loses control in the sense that she experiences some strong passion, anger, fear, terror.
4) The strong passion prevents the defendant from being able to deliberate over what it is that he is about to
do.
i. So you could see a person becoming angry, angry enough to want to kill, but able to avoid killing by,
in effect, exercising self-control and deliberating over whether to kill the victim and coming to the
conclusion that it would be wrong.
ii. And therefore, the person doesn't act.
iii. Where there's provocation the defendant goes through all of that but is unable to exercise self-control
and in that moment causes the death of the other person.
Common law justifications for provocation.
• Physical attack or mutual combat.
Consider People v. Walker. The victim threatened the defendant and his friends. The victim attempted to stab the
defendant and his friends. There was the slightest pause in the activities of the two men. However, the defendant said
that he would cut the victim before he cut the victim. The defendant was originally convicted of murder, but the Court
of Appeals mitigated that charge to voluntary manslaughter, on the grounds that there was a sudden and highly serious
provoking injury inflicted by the victim.
•
•
•
Fear of life
Violent or sexual assault on a close relative.
Adultery.
In Rowland v. State, the defendant found his wife in bed with her lover. He went to kill the man and killed his wife
instead. The court considered the adultery as adequate provocation. The trend since Rowland has been to allow
provocation defenses even where the defendant did not witness the adultery. This trend is significant, because it
seemingly presumes that a revelation is sufficient to make someone lose control.
•
Unlawful arrest.
Double jeopardy. The defendant is convicted of voluntary manslaughter. On appeal, if it is shown that the defendant
lacked adequate provocation
- 30 -
Commented [AT3]: Flesh this out.
Expert testimony. In some jurisdictions, the courts exclude any evidence from experts about a patient they never met.
Such evidence would be unethical.
Modern approach. The modern standard is “extreme emotional disturbance.” That extreme mental or emotion
disturbance must be reasonable. In People v. Berry, the defendant’s wife taunted him about her relationship with an Israeli
man for a long period of time. He had a violent history for her, and she had a history of escalating violence. He then
waited in her house for 20 hours. When she arrived, and she started screaming, he strangled her. The defense used an
expert blaming the victim for her death.
Under People v. Berry, her verbal provocation was sufficient to induce an enthusiastic emotion that was the heat of
passion. These actions culminated. There was no need for an explosive event. However, the laxity with which the
MPC and other modern doctrines treat provocation is troubling. By defining the reasonable standard from the
defendant’s viewpoint, the door is opened to, for example, abusers provoked by the fleeing of their victims.
Surprise. In Commonwealth v. Vatcher, it was unreasonable for the defendant to kill his son, who had developmental
disabilities, for a temper tantrum, because those temper tantrums were expected.
Cooling time. Provocation is not perpetual. After a reasonable period of time, the defendant, or a reasonable person,
will regain self-control. Some jurisdictions allow a subsequent event to revive prior provocation, but others are strict. In
Ex Parte Fraley, the defendant killed the man who killed his son. However, nine to ten months had passed since the
son’s murder. The defendant should now be judged on whether the sight of the man enraged him so that he lost
control. Similarly, in State v. Gounagias, the victim raped the defendant. The defendant endured taunts for two weeks,
then killed the victim. The defendant was judged on the provocation only at the moment of the homicide. Courts have
moved away from this standard.
Burden of proof. In some jurisdictions, provocation is an affirmative defense. The defendant has the burden of
production and of persuasion. In other jurisdictions, the defendant has only the burden of production. Once raised, the
prosecution must prove a lack of provocation beyond a reasonable doubt. The Model Penal Code requires the
defendant to prove extreme emotional distress by a preponderance of the evidence.
The judge decides whether there is a genuine issue of material fact as to provocation. Under the modern understanding
of provocation, it is not necessary that there was any specific conduct. The jury decides whether the defendant was
provoked, whether it was reasonable that the defendant was provoked, and whether the defendant had time to cool off.
Transferred intent. The absurd result in Carter v. State held that provocation is not a tenet of transferred intent, so that
where an attempted killing results in the accidental homicide of another, the intent to kill can transfer, but the
provocation does not.
d. Unintentional Homicide
Normative underpinnings. Negligence is generally an insufficient basis for criminal conviction. On a utilitarian
ground, criminal sanction largely cannot influence the inadvertent actor. Retributivists would argue that the criminal
punishment requires the defendant to have earned punishment through conscious fault. However, punishment can
cause care where there would ordinarily be none.
Considerations. Charging someone for unintentionally causing the death of another finds much less basis in the
normative underpinnings of our law. The issue will turn on:
(i)
What was the defendant’s mental culpability with respect to the death? (e.g., recklessness, gross negligence,
negligence)
(ii)
What was the level of risk the defendant ignored? How apparent was it?
(iii)
How much of a departure was this from what a ordinary law-abiding citizen would have done?
- 31 -
Commented [AT4]: Does anyone have a better idea of
the limitations on evidence here.
Results. The above analysis could result in:
• Accidental death, for which there is tort but not criminal liability.
• Second-degree murder.
• Involuntary manslaughter.
o Recklessness
o Gross negligence
o Negligence
Model Penal Code. There are three levels of culpability for creating the risk of homicide. The first is murder. The
defendant must act with a reckless disregard for human life. The second is manslaughter. The person must act
recklessly with respect to the death of another by consciously disregarding a substantial and unjustifiable risk that his
conduct will cause the result. Further, the nature and degree of the risk must be such that disregarding it is a gross
deviation from the standard of conduct that a law-abiding person would observe. A person cannot be guilty of
manslaughter without awareness; therefore, negligence is insufficient to be manslaughter. However, negligent homicide
is preserved as a crime. Holding people responsible for substantial fault and significant deviations from the ordinary
standards of conduct causes care where there would ordinarily be none.
Errors in charging negligence. Punishment for gross error will often lead to false positives. The probability of an
absent-minded error may rise when the defendant is sufficiently skilled, so that a rote task makes the defendant act
instinctively even where the circumstances have changed. A different example was the professor who left his baby in the
back seat of his van for five hours, because he was absent-minded, forgetting that he had not dropped the baby off.
Causation. State v. Williams provides a case study for the narrow window of time in which negligent crimes must be
proved. Negligent homicide requires that the defendant caused the death of another. Negligent homicide also requires
that a reasonable other person would have exercised reasonable care in a way that would have prevented the death. In
Williams, the defendants didn’t bring their child to the doctor, because they were worried the child would be taken from
them. The question was whether the state could prove that there was a period of time when (i) a reasonable person
would have been aware of the great risk of death and (ii) the reasonable person could have intervened in time to save the
child. In other words, that (i) the defendants were negligent and (ii) that their negligence was the proximate cause of the
death.
1.
First-degree murder: felony murder
Definition. A defendant is liable for first-degree felony murder when a death occurs during the commission of one of a
set of enumerated felonies. Most jurisdictions require that the death be foreseeable or in furtherance of the felony.
Implied malice is found in the felon’s choice to perpetrate an inherently dangerous felony.
The law in the State of Duke. As set out in State v. Martin, the defendant, whether a sole perpetrator or an accomplice,
is liable for felony murder only if the death is not (i) too remote, (ii) accidental in its occurrence, or (iii) too dependent
on another’s volitional act to have a just bearing on the defendant’s culpability. This hems closely to foreseeability.
Deaths occurring as a result of self-defense or provocation are not too dependent on another’s volition. The “other”
volitional act is someone not participating in the felony.
Where multiple people perpetrate a felony, the focus should be on the relationship between the victim’s death and the
felony, not the individual roles of the perpetrators. Thus, the defendant should be exculpated only when death occurs in
a manner that is so unexpected or unusual that she could not justly be found culpable for the result. The individual role
of the accomplice is irrelevant. There is an affirmative defense if the defendant:
•
•
•
Did not commit the homicidal act or in any way solicit, request, command, cause, or aid the commission;
Was not armed with a deadly weapon, or any instrument readily capable of causing death;
Had no reasonable ground to believe that any other participant was armed with a deadly weapon; and
- 32 -
•
Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in
death.
Why do we have it?
•
•
•
•
•
In People v. Washington, in California, a defendant and his accomplice attempted to rob a gas station. The owner
shot and killed the accomplice. The majority found that the felony murder rule exists to deter felons from
killing negligently and accidentally by holding them responsible for the killings they commit. The dissent
responds that the felony murder rule also attempts to deter the defendant from undertaking inherently
dangerous felony.
The felony establishes that the defendant acted with gross recklessness and wanton indifference to human life,
from which we can implicitly read implied malice (MPC approach).
The intent to commit a felony is as malicious as intent to kill.
Deterrence. Felony murder rules simply serve a deterrent effect in committing the felony, or in committing
the felonies with reckless disregard for life.
Retributive. Creating a risk of death in the context of a more wrongful activity is more culpable than creating
a risk of death in the context of an innocent activity. The guilt inherent in creating a risk of harm depends on
the reasons for creating that risk.
Predicate felonies. An enumerated felony is one that is sufficiently dangerous per se that the person committing it is
constructively reckless and indifferent to the death of other humans by participating in it.
•
•
•
•
Some states list out arson, robbery, burglary, rape, often kidnapping and escape, and sometimes others.
Some states rely on any dangerous or “forcible” felony, or any felony involving use of a deadly weapon.
o Figure out whether this particular felony is inherently dangerous to life.
Some states have enumerated felonies for first-degree murder and allow judicial construction of sufficient bases
for second-degree felony murder.
Where unlimited, courts limit predicate felonies to those dangerous to life.
Non-enumerated felonies. A non-enumerated felony, e.g. like supplying cocaine in the People v. Patterson case, is
inherently dangerous to life when there is a high probability that its commission will result in death. While the offense
should be viewed specifically (e.g., distribution of cocaine is a separate offense from distribution of heroin), the offense
should be viewed elementally, and in the abstract (rather than as committed by the defendant). This is typically a
question of law.
Still, other states look only danger in commission., such that it is a question of fact on a case-by-case basis. This
standard effectively requires that the defendant was at least negligent. In these examples, a non-inherently-dangerous
felony (like theft of a motor vehicle) can be done in a sufficiently dangerous way to justify felony murder.
Mens rea.
•
•
•
•
•
A few states expressly require gross negligence with respect to the death (aggravating from second- to firstdegree murder).
The Model Penal Code establishes that homicide during an enumerated felony creates a rebuttable presumption
of extreme indifference (second-degree murder).
Some states condition felony murder on recklessness (aggravating from involuntary manslaughter to murder).
Some states require explicit proof of negligence (e.g., Delaware).
Some states have no felony murder rule.
Causation. The defendant is liable for felony murder only if the death is not too remote, accidental in its occurrence, or
too dependent on another’s voluntary act, under State v. Martin (arson). However, in People v. Stamp, the California
defendants were liable for a man’s heart attack during a robbery, even though they were only a contributing cause.
Similarly, in People v. Brackett, an Illinois rapist was held liable for his victim’s death choking on her feeding tube. In
California, courts have since required that the death must be a direct, natural and probable consequence of the act,
- 33 -
suggesting that foreseeability is now a factor. In Illinois, the foreseeability standard is that a death could occur, not that
the death would occur in a foreseeable manner. This doesn’t seem to have much support in other jurisdictions. Brackett
is distinguished from Hamilton, because felony murder imputes malice, not simply cause. “[v]ariations between the actual
and designed or contemplated results are problems of culpability rather than metaphysical problems of causation.” A
less foreseeable outcome is less connected to any malice on the defendant’s part. Foreseeability should be reviewed
from the perspective of the defendant.
In furtherance. In People v. Cavitt, the court notes that there must be a logical nexus between the homicidal act and the
felony. This nexus must not be simply time and place, but in logic or plan. However, the homicide must occur in the
same continuous transaction of the felony. Here, the defendants were liable for their co-conspirator’s intent to kill her
step-mother. Often, one of the victims of a felony was chosen because one of the co-felons had a personal animus; such
an animus should not be a limit on the liability of the others involved.
Which killers. Only about a dozen jurisdictions hold all co-felons equally liable. In State v. Canola, in New Jersey, a
felon cannot be liable for any death, even of a non-felon, when the death was caused by someone other than a
participant in the felony. In People v. Washington, in California, a defendant and his accomplice attempted to rob a gas
station. The owner shot and killed the accomplice. The majority found that the felony murder rule exists to deter felons
from killing negligently and accidentally by holding them responsible for the killings they commit. The dissent responds
that the felony murder rule also attempts to deter the defendant from undertaking inherently dangerous felony. Thus,
while the majority limits felony murder liability to homicides caused by the defendant or her accomplices, the dissent
suggests that the defendant engaged in conduct where it was reasonably foreseeable that a death would occur, either due
to the defendant’s conduct or due to the victim’s resistance.
The majority and the dissent also differ on whether the defendant can be held responsible for the act of another. The
majority holds that the defendant’s liability should not depend on the acts of another. Murder requires express or
implied malice, and where the death was caused by someone other than an accomplice, the direct causer of death was
not acting with malice. The dissent responds that causation crimes are inherently dependent on circumstance, and that
the robbers both committed the relevant intentional act of committing the felony. The defendant acted with malice by
creating the circumstance. Coleman agrees with the majority.
In People v. Hickman, the defendants committed a burglary. The police were called. During the escape/chase, one of the
police officers mistook another officer for the defendants. He shot and killed the officer. The defendants were charged
with felony murder. The relevant question was the relationship between the death and the felony. Here, the death
occurred as a natural and probable consequence of the felony, whereby the police would pursue the defendants. The
court creates the rule that “he whose act causes in any way, directly or indirectly, the death of an innocent victim is
guilty” of felony murder. The justification of a third-party in killing a co-felon does not port to the defendant for felony
murder.
In Taylor v. Superior Court, the defendant was the getaway driver. He was held responsible for the foreseeably provoked
killing of his co-felon, but under the theory that he was an accomplice to second-degree reckless murder because his cofelons acted recklessly in attempting to rob a liquor store with a conscious disregard for human life.
In State v. Mauldin, the court rejected felony murder where the defendant sold heroin to the victim who overdosed
himself. The causal connection was too attenuated. In People v. Rodoussakis, the defendant was liable because he injected
the customer himself, after seeing another customer become ill from the same action and despite being discouraged by a
bystander.
Model Penal Code. 210.2: “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.” Thus, while felony murder resembles a strict liability crime, it is
reasonable to understand felony murder as requiring negligence.
Stricter liabilities. In State v. Martin, the defendant lit trash on fire outside of an apartment. There was a person asleep
inside who died. The state charged Martin with first-degree felony murder, on the grounds that the death occurred in
the commission of an arson. Without felony murder, it is unlikely that the state could have pursued any level of mental
- 34 -
Commented [AT5]: How do we handle this?
culpability above negligence. Unless the jurisdiction allows involuntary manslaughter for negligence, it’s likely the
defendant would not have been liable for the death.
Accomplice liability. Generally, an accomplice will be guilty for the conduct of a principal in the commission of a
felony. So if the principal’s conduct in committing a felony causes the death of someone, the accomplice can also be
liable for the death. New York and New Jersey have an affirmative defense.
•
•
•
•
The accomplice did not cause the death.
The accomplice was unarmed.
The accomplice had no reason to think a co-felon would commit an act likely to cause death.
The accomplice had no reason to think that a co-felon was armed.
End of the felony. In People v. Gladman, the court reviewed the limits on “in commission” of a felony. The question is
whether the defendant was still acting under the intent of the felony. The court considered several factors, including:
•
•
•
•
•
Engaged in securing the plunder or in doing something immediately connected with the underlying crime.
How far apart were the homicide and the felony?
How long passed between the homicide and the felony?
Does the defendant still have the plunder of the felony?
Were the police still in pursuit of the defendant?
Merger rule. In State v. Shock, the defendant could not be held liable for felony murder where the felony was a
necessary and constituent element of the homicide itself, as where the defendant beat the victim, causing the death.
Arson, for example, is its own crime. It destroys property and endangers others. The infliction of great bodily harm
that directly causes the death is one continuous transaction. No felony other than murder could be found.
Defending felony murder.
(1) The best defense is a defense to the underlying felony.
(2) Has the felony ended?
(3) If the defendant is liable for the underlying felony, and the felony is enumerated, the question is whether the
death was:
a. Too remote;
i. Because felony murder attempts to find malice in the defendant’s actions, if the result is not
foreseeable, it is hard to hold the defendant liable.
b. Too accidental; or
c. Too dependent on another’s volitional act.
i. Under Watson, Coleman thinks it is a reasonable decision to charge someone for reckless
murder if ANY third-party commits the offense, but to ascribe malice ONLY when the
defendant or an accomplice committed the homicide. There is no way to read some felony
murder statutes to allow the act of another to impose liability.
Case chart.
Case
State v.
Martin
(450)
Killer
Defendant
Victim
Innocent
Woman
Issue
Was death the
“probable
consequence” of the
felony.
Holding
Remand for proper jury
instruction
People v.
Stamp
(462)
Defendant
and his
accomplices
Employee
of
Robbery
victim
Did felony have to be
the sole or proximate
cause of the death?
Conviction upheld
California
jury
- 35 -
Relevant Factors
1. was death too remote
2. was it too accidental in occurrence
3. was it too dependent on the voluntary act of another
person?
4. Does it have a just bearing on defendant’s liability or
the gravity of his offense?
Felony needed to be a contributing cause which in the
natural and continuous sequence, unbroken by any
efficient intervening cause produces the death and without
which the death would not have occurred. Felony not only
cause; victim already enfeebled by other cause; probable
that victim would have died even without the felony.
1. Where there is more than one cause, felony must be a
substantial cause;
Commented [AT6]: It seems like there is a gap here in
some jurisdictions. If the defendant beats the victim
without intending to kill, and it is not one of the 2 situations
in Suarez, then the defendant cannot be guilty of either
felony murder (under the merger rule) or reckless murder
(because it was individualized). The defendant could only
be charged with involuntary manslaughter. Is that just?
instruction
after Stamp
(463)
People v.
Bracket
(464)
Defendant
Rape
victim
People v.
Washington
(464)
Robbery
victim
Co-felon
People v.
Hickman
(470)
Police
officer
Police
officer
People v.
Cabaltero
(473)
Felon 1
Felon 2
Taylor v.
Superior
Court (474)
Co-felon
Robbery
victim
State v.
Mauldin
(474)
Victims
self-inject
heroin after
purchasing
it from
Defendant
People v.
Gladman
Defendant
People v.
Cavitt (481)
Accomplice
to robbery
2.
Was defendant
responsible for death
when it was due to
depression and failure
to eat, after the rape
Did the felony
murder rule apply to
a death caused by a
third-party not acting
in concert with the
felons?
Did rule apply when
the person killed was
an innocent
Conviction upheld
Whether accomplices
are liable under the
F/M rule for death of
a co-felon caused by
another co-felon
Whether death of cofelon is murder if it is
caused by non-felon
Conviction upheld
Victims
who
bought
drugs
from
defendant
Whether seller of
heroin that killed
victims was subject to
murder prosecution
under the F/M rule
Upholds trial court
dismissal of F/M charge.
Death occurred after
heroin transaction
completed;
Police
officer;
may not
have
known
defendant
had
committed
a robbery
Robbery
victim
Was a homicide that
occurred in parking
lot of bowling alley,
less than 0.5 mile
from robbery scene
subject to F/M rule?
Question for jury whether
the death occurred during
the escape from felony.
Would rule apply if
the death of the
stepmother is wholly
unrelated to the
robbery except they
occurred at the same
time and place
Jury instruction inadequate
to inform jury it had to
find the homicide
occurred during
commission of the
robbery and killer was one
of felons engaged in
commission of felony
2. death must be the direct, natural, and probable
consequence of the felony;
3. A reasonable person would know that death is likely to
occur if nothing intervenes between felony and death.
Death was foreseeable from rape, even if it was not
foreseeable that the victim would choke to death in
hospital from feeding tube.
Conviction overturned
Rule supplies malice to a homicide caused by felons;
purpose to induce felons to avoid negligently causing
death; felons can be held liable for the death under
reckless murder rationale if he provokes a deadly response
from third party
Conviction reinstated
Death of an innocent person caused by non-felon
attributed to the felon, as long as it occurs during
commission of or immediate escape from the felony.
Felon liable if his act causes in any way, directly or
indirectly, the death of an innocent person. Justifiable
homicide by a third-party (e.g., of a co-felon) would not be
attributed to the felon.
Rule applies to any death caused by one of the felons if it
occurred in attempt or commission of the felony
Yes, but based on reckless
murder, not under F/M
rule
Application of dicta in People v. Washington. Felon
provoked the robbery victim to use death force;
accomplice guilty under complicity rule if death occurred
in furtherance of the target crime or was foreseeable, given
the design of that crime.
Must be a closer direct causal connection between the
felony and the homicide; proximate cause for purpose of
tort law insufficient. Compare, People v. Rodoussakis (474).
Defendant sells morphine to victim and injects him three
times, causing his death Defendant had witnessed another
user become ill from three injections. (F/M or 2d degree
reckless murder?
Issue is whether the felony was in immediate flight from
commission of the felony; jury to consider several factors:
whether homicide occurred; how far from scene of felony;
how much time had passed; were police in close pursuit;
did robbers have fruits of robbery; had felon reached a
place of temporary safety?
F/M rule requires there be a logical nexus between the
homicidal act and the felony (although it does not have to
be in furtherance of the felony); nexus must be one of
plan or logic. There also must be a temporal relationship
in sense that the felony and homicidal act were part of one
continuous transaction.
Second-degree murder: implied malice
Coleman. The general rule is that an unintended homicide that is caused in circumstances reflecting indifference to
the value of human life is a homicide with implied malice and therefore, constitutes second degree murder. The real
question is when does a homicide or when do the circumstances reflect indifference to the value of human life. The
place to start is with the Model Penal Code definition of recklessness. The Model Penal Code assumes that the
defendant is aware of the risk of death that his conduct will create and assumes that the risk is substantial and
unjustified. If the defendant ignores the risk and engages in the conduct notwithstanding the risk, and that is a deviation
from what a reasonable person would do in the circumstances, that is recklessness. In order to get from recklessness,
- 36 -
which is the mental culpability for manslaughter, to extreme indifference to the value of human life, which is the mental
culpability for second degree murder based on implied malice, the issue is how far did the defendant’s willingness to
ignore the homicidal risk deviate from what a law-abiding person would have done. So we're talking about a risk,
where there is a probability that the person will die under a given set of circumstances. And the defendant ignores the
risk and by doing so substantially deviates from what a law-abiding person would have done under the circumstances.
The more the defendant’s willingness to engage in the conduct deviates from what a law-abiding person would do, the
more likely his conduct will constitute second-degree murder. This is not what a reasonable person would do, but what
a law-abiding person would do.
(1) Did the defendant intentionally create a high probability of death?
(2) Did the defendant disregard the risk in circumstances that thus reflected disregard for human life?
Factors to consider when determining malice, include:
(1) The extent of the risk undertaken. (would a law-abiding person have undertaken this risk?)
(2) The degree of consciousness of the risk.
(3) The degree of unworthiness of the motivating aim. (why did the defendant engage in this conduct?)
Implied malice. In Mayes v. the People, the defendant threw his glass at his wife while she was carrying a lamp. The lamp
broke, and she was engulfed in flames. The court found that the defendant may not have intended to kill her, but his act
showed such an “abandoned and malignant heart.” The action was done with deliberation, with an intention of mischief
or great bodily harm. Often, this is found where the defendant did not intend to kill any one person, but acted with
such disregard for the harm, wherever it may land. This covers places where the defendant manifests a reckless,
murderous disposition but without direction towards a specific person.
The MPC says “extreme indifference to the value of human life” allows a reckless homicide to be charged as murder.
The MPC describes this as “assimilation to purpose or knowledge for purposes of grading” and requires the conscious
disregard of the risk to so depart from acceptable behavior that it constitutes a gross deviation from the standard of conduct a law-abiding
person would observe in the actor’s situation. The MPC notes that Russian roulette could fall in this definition.
Not malicious. Consider a defendant who drove recklessly to get his wife to the hospital in time for a birth. The
defendant consciously undertook a significant risk. However, the defendant’s motivating aim was worthy. The resulting
death is likely a manslaughter.
Exception: multiple victims. In People v. Suarez, the court worries about the slippery slope of reading implied malice
into every case where the court cannot prove intent to kill. Reckless murder should not be a lesser degree of intentional
murder. Reckless murder is typically the result of conduct where the defendant did not wish to kill or injure any
particular defendant, but acted in a way that endangered many people indiscriminately. Examples include placing a bomb
in a public place, opening the lion’s cage, and dropping stones from an overpass. Intent to cause serious physical injury
on a specific person is simply manslaughter. The Suarez court notes two circumstances under which the defendant may
be charged with reckless murder against an individual:
• The defendant abandons a helpless and vulnerable victim in circumstances where the victim is highly likely to
die, arising from a situation created by the defendant (e.g., pushing a child into the water, watching him fail to
surface, and lying to people asking about the kid).
• Torture or a brutal, prolonged, and ultimately fatal course of conduct against a particularly vulnerable victim
(e.g., continually beating an infant over five days).
Other exceptions.
• Commonwealth v. Dorazio: the defendant beat the victim to death. The defendant intended to inflict “serious
bodily harm.” To limit the cases where a fatal assault is charged as a murder to those using a deadly weapon.
Here, the defendant’s fists, because he was a boxer, were classified as such because of the manner in which they
were used, the ferocity of the attack, and its duration.
o The Model Penal Code rejects intent to injure as a basis for murder liability, holding that the only
common law murder that would not be covered was one in which the actor inflicts injury while taking
express precautions not to kill and the victim dies.
- 37 -
•
•
•
•
•
In Commonwealth v. Malone, the defendant killed his friend while playing Russian poker. The defendant believed
he had taken precautions so that the gun would not go off on three shots. However, the gun did have a bullet
in it and the gun was pointed at the victim’s head. Thus, only one circumstance had to go wrong for the victim
to die. If the gun goes off, the victim dies. Why take that risk?
In People v. Protopappas, while the jury charge left the awareness required for recklessness out of the charge, the
defendant was found guilty for reckless murder when he, as a doctor, aware of medical problems in his patients
that made them sensitive to anesthesia, overdosed them and then failed to monitor them. The defendant knew
that this conduct was extremely likely to result in their death. He consciously disregarded that risk.
In State v. Davidson, in Kansas, the defendant was held responsible for “extreme indifference” murder where she
was negligent in training her dogs, who killed a child. It’s not clear that the defendant was aware of the risk
that she created, and the court explicitly held her responsible for the “reasonable foreseeability” that her dogs
could injure someone.
In State v. Dufield, the defendant could not defend his reckless indifference murder by a charge of voluntary
intoxication, because the relevant mental culpability is recklessness, not purpose or knowledge.
In People v. Watson, the majority found the defendant guilty of reckless murder for homicides while driving
drunk. The dissent attempts to discover the point at which the defendant displayed a conscious disregard for
human life. The court holds that it was when he drove to the bar with the intent to become intoxicated.
However, the dissent notes that the court has failed the concurrence test, by having the conscious disregard for
human life exist in an entirely separate time and instance than the act that killed people. The Chief Justice says
death is not the probable consequence of drunk driving.
Hypothetical. The defendant drives the victim onto a country road in the middle of winter and leaves the person there.
The person sees a light in the forest and goes toward the light and bangs on the door and he is killed by the person who
lives in the house, because the person thinks that there is a break in. So I would ask you whether the person who
abandoned the victim is guilty of second-degree murder.
• Your answer would be that under some circumstances, because the conduct was directed at an individual and
not indiscriminate, the second-degree reckless indifference would not apply. The Court would not recognize
the circumstance.
• Then you would say, on the other hand, even in a situation in which Suarez applied, the person could be guilty
for conduct that was directed at an individual.
• But it's not clear that the actual cause of his death was foreseeable when you left them out there.
3.
Involuntary manslaughter
Under the MPC, you cannot be guilty of manslaughter if you are negligent. You can only be guilty of manslaughter if
you are reckless, and if that recklessness consciously disregards a substantial and unjustifiable homicidal risk created by
his conduct. Other jurisdictions allow a manslaughter conviction for negligence. In these jurisdictions, the defendant
must be grossly insensitive to the interests and claims of other persons in society. In Commonwealth v. Welansky, the
defendant could be held liable if he is “so stupid or so heedless that in fact he did not realize the grave danger but an
ordinary normal man under the same circumstances would have realized the gravity or danger.”
Gross negligence v. simple negligence. The difference between gross negligence and simple negligence is how
substantial the homicidal risk is. Coleman notes that gross negligence is for non-justifiable conduct, where the conduct
serves no socially redeemable purpose and is extremely dangerous.
Recklessness v. gross negligence. Welanksey must have knowingly failed to take safety precautions in order to be
either reckless or grossly negligence. However, to be reckless, Welanskey must also be aware of the homicidal risk he
has created, and he must have consciously disregarded it. If the risk is substantial, but he was unaware of it, then he was
grossly negligent. If the risk was insubstantial and he was unaware of it, he was negligent.
What negligence supports manslaughter. A common factor which is that the defendant created a risk a substantial
and unjustifiable risk that a death might occur from his or her conduct.
- 38 -
Commented [AT7]: Have we held this out as an
appropriate basis.
Commented [AT8]: But would the first step be a Hayes v.
People play that the defendant’s conduct was reckless in
deviating from the conduct of a law-abiding person.
Further, the defendant demonstrated such an indifference
to the value of human life in consciously disregarding one of
a wealth of risks to the defendant.
•
•
•
In Porter v. State, the defendant’s conviction was reversed, on the grounds that, while he was driving at a rate of
60 to 65 mph, his only negligence was failing to stop at a stop sign, so that his negligence did not support
manslaughter.
In another case, a professor was not charged with manslaughter for leaving his son in a hot car.
In another case, a father was charged with manslaughter because his son was on wearing a seatbelt when he
drove his vehicle too quickly and lost control.
The baby case and Welanskey were here.
3) Justification and Excuse
The defendant admits that she committed a criminal act with the requisite mens rea. Thus, our criminal statutes have
defined unlawful conduct and the defendant has met the definition of the unlawful conduct. However, the defendant
says there is some retributive or utilitarian reason why the defendant does not deserve punishment. Justification argues
that the defendant’s conduct, though it fit the definition of the offense, was not actually wrongful. Excuse argues that
the defendant’s conduct, while wrongful, should be excused, because the defendant was constrained in choosing to act
wrongfully.
a. Why do we allow justification and excuse defenses?
Rigidity. We acknowledge that defining criminal conduct narrowly by a set of actions and mental states is likely to
capture some conduct for which we should not hold the defendant responsible. Thus, justification and excuse act as a
safety valve. Through justification and excuse, criminal codes can further the substantive goals of criminal law while not
going too far.
Utilitarian. Punishment should exist only to maximize utility. Thus, punishment should deter only where it prevents
more harm than it causes. Where the conduct itself is not harmful, or where the conduct could not adequately be
deterred, the utilitarian does not believe the defendant should be punished. For justification, the defendant should act
only to maximize social utility. Thus, the defendant should only kill to prevent a killing, and the defendant should never
kill multiple to save one. For excuse, the defendant should not be punishment where the cost of not acting was higher
than the cost of acting. Thus, the standard for duress, necessity, or self-defense is the balancing of evils. Nor should the
defendant be punished when she is incapable of abstaining. However, the public would be deterred by punishment even
where the defendant acted without meaningful choice.
Retributivist. Punishment should apply only to those who deserve it. Retributivists have an expanded view of justified
acts. The retributivist does not balance harms. The retributivist looks to the blameworthiness of an act. Thus, the
defense of any right could justify some degree of wrongful act. However, the defendant is judged on the results of her
actions and not on her intent. A defendant who reasonably believed she acted justifiably could still be punished for the
crime if she is wrong. For excuses, retributivists excuse those who cannot be blamed intrinsically.
Reasonable person. For justification, utilitarian judges the offender against optimally informed person. The utilitarian
cares about the overall impact on society. For excuse, the utilitarian cares that the offender could not be deterred.
Therefore, the utilitarian turns to someone in the same circumstances as the defendant. For retributivists, the relevant
standard is whether a person of good character would have committed the act. If she would not have, the act was clearly
wrongful, and the defendant should be held responsible for the act.
The standard is to give the reasonable person the characteristics of the defendant, because you care about whether the
defendant’s act is blameworthy.
[[Placeholder]]
The Model Penal Code. The MPC does not draw a fine line between justification and excuse. The MPC simply notes
that there are some cases where the court says that the defendant should not be held responsible, either because their act
- 39 -
was not wrongful or because the defendant did not have the opportunity to effectively choose to act wrongfully. Under
the MPC, a lack of justification and excuse is an element of the crime to be proved by the state.
(1) Wrongfulness. The defendant claiming justification claims that she advanced some social interest or vindicated
a sufficient right that she should not be punished for her actions because she did no wrong. The defendant
claiming excuse acknowledges that she was wrong to commit the offense, but that she was so limited in
voluntarily committing the act that she should not be blamed for it, or she could not be deterred. Note the
difference resembles the German system, whereby the defendant is first judged on the wrongfulness of the act
and then on the blameworthiness.
(2) Legality. A statute can serve two functions. First, the statute can let citizens know of the bounds of their
conduct, so that they can conform their conduct thereto. Second, the statute can let judges and juries know
how to judge the conduct of actors. Justification defenses serve both purposes, so they typically require more
specificity than excuse, though the need for individual discretion in these decisions undermines some rigidity.
We can define these as “conduct” rules and “decision” rules.
(3) Burden of proof. Due process requires that the prosecution prove that the defendant acted in a wrongful
manner. Thus, the burden of proof for justification typically rests on the prosecution. Conversely, the burden
of proof for excuse typically rests on the defendant. Note that not all jurisdictions assign the burden of proof
on justification to the prosecution.
(4) Third parties. Third parties may justifiably assist justified conduct. Third parties may not be excused for
assisting a party that is excused (their conduct is still wrongful).
There are two basic affirmative defenses. One is justification and the other is excuse. The Court doesn't always make it
clear whether the theory is justification or excuse.
In a case like self-defense where a person uses force to defend herself or a third person, she has a right to engage in
deadly force to protect herself. You can use deadly force until you no longer need to, which means that if you are being
attacked by four people you can kill all four people in order to defend yourself. Usually when we're talking about an
excuse, the rule is that it has to be proportionate. You can't simply kill people because you're in a position to do so. So
with self-defense if you make a mistake that a person is about to attack you and you believe that the person poses a
deadly threat, then you are allowed to use deadly force, even if you are wrong.
However, your belief that the person is about to use deadly force must be reasonable. If it turns out that the person in
fact was not a deadly threat to you, you still have a defense of self-defense, except that it is then an excuse. You don't
have the right to kill an innocent person. But you do have the right to kill an innocent person if you reasonably believed
that that person posed a deadly threat to you. Normally when we talk about an excuse we're talking about a situation
where person X commits a crime under circumstances where a threat is being made against a person that a reasonable
person would not have been able to resist. So duress is an excuse. It is a situation where a person forces another person,
let's say, Belinda forces Kaylin to rob a store and threatens to harm a close family member if she doesn't, and she
commits the crime. Kaylin would be acquitted, not because what she did was right, but because what she did was done
on the circumstances that a reasonable person would not have been able to resist. So those are the two types of defense's
that we're going to talk about and then we will also talk about sort of the ultimate excuse, which is insanity. This is a
situation where a person commits a crime but alleges that he or she did so because of some mental illness.
b. Self-defense.
This is an EMERGENCY. You had no choice, and there was nothing you could do other than this. There is
no proportionality requirement, but there must be a threat of imminent harm, giving you the right to defend
yourself as long as necessary.
1.
Why do we have self-defense?
From a utilitarian perspective, the defendant has been faced with a threat of harm. Therefore, the defendant is justified
in using a proportionate harm (though there is no proportionality requirement in self-defense) to respond. Further, the
defendant can hardly be deterred if their choices were constrained by the imminent threat. Under a utilitarian point of
view, however, the defendant is only allowed to use the minimum force necessary, and the defendant must retreat.
- 40 -
From a retributive perspective, the moral blameworthiness of the defendant’s actions is severely mitigated by an
imminent threat. It is hardly blameworthy to protect oneself through force. Thus, the limits on the defendant’s use of
force are the blameworthiness. The threat must actually be imminent and the defendant should only respond with
necessary force.
“A defense of justification is the product of society’s determination that the actual existence of certain circumstances will
operate to make proper and legal what otherwise would be criminal conduct. A defense of excuse, contrarily, does not
make legal and proper conduct which ordinarily would result in criminal liability; instead it openly recognizes the
criminality of the conduct but excuses it because the actor believed that circumstances actually existed which would
justify his conduct when in fact they did not.” Thus, self-defense is available for any reasonable belief.
2.
What are the elements of self-defense?
(1) This must be an emergency, such that it was necessary to use force. What are the circumstances in which the
defendant used force? The threat must be imminent. It need not be actually imminent; the defendant is
charged only by her reasonable belief.
The only way to avoid a future threat is to act now. That future threat needs to be imminent, but not
immediate. This is based on the defendant’s perception. The defendant is only justified in using deadly force if there
actually is a threat.
Imminence. Coleman makes hay of the “trigger.” The trigger need not be one isolated event. It simply must be an
event that sets the person off into believing that self-defense is necessary. And this event can be conditioned by past
conduct. It need not be immediate to be imminent. Especially given the difficulty one might have in defending oneself
if the danger is immediate.
In State v. Norman, the court rejected imminence on the grounds that the defendant had the opportunity to resort to
other means. The court noted that allowing non-imminent threats to justify self-defense could lead to a slippery slope.
In State v. Stewart, the court held that the defendant could not reasonably have feared imminent danger from her spouse
while he was sleeping.
Professor Nourse argues that imminence should simply be a code word for the possibility of retreat, instead of requiring
immediacy. Given penological goals, this interpretation is logical. The defendant is excused from blameworthiness if
she had no other option but to use this force to prevent greater harm. These goals are served, but not dispositively so,
by a requirement of immediacy. Thus, in domestic abuse situations, there are certainly greater impediments to removing
oneself from that situation than simply the immediacy of physical harm. Professor Ewing argues that psychological
injury should be considered in these circumstances alongside
This test requires one to look at what the defendant knew at the time he used deadly force. Did he know of the ability
to retreat? What else did he know that convinced him his life was in danger? In Goetz, the defendant knew that he was
on a crowded car with four black men, and that he had been mugged by black men in the past. He knew they asked him
for money. He did NOT know they had screwdrivers.
Threat. Most jurisdictions permit the use of deadly force to prevent only specified danger felonies. The Model Penal
Code permits deadly force for law enforcement only when necessary to prevent serious harm to innocent persons. In
Tennessee v. Garner, the victim was leaving the scene of a suspected “prowler inside.” He was running away. The police
officer did not see a weapon, and he shot at him to prevent him from getting away. This violated his Fourth
Amendment rights. The question was whether the officer had probable cause (a reasonable belief) to believe that the
victim posed a threat of serious physical harm. For example, if the victim were spreading gasoline around the building.
If there is a reasonable belief of imminent threat, the defendant need not use non-deadly force first.
In People v. Couch, the defendant shot a man who had tried to rob his car, as the defendant fled. The defendant was held
to the Garner standard. Therefore, he must have reasonably believed that physical harm was imminent.
(2) The defendant must honestly believe that the threat is imminent.
- 41 -
Commented [AT9]: What if there is a reasonable “off
ramp”? If the defendant could, say, tackle the victim
instead of stabbing him?
If the defendant does not honestly believe the threat is imminent, he has committed murder. In People v. Elmore, the
defendant perceived threats that were both unreasonable and delusional. The court refused to allow an “unreasonable
self-defense” claim, because though the defendant may have believed force was necessary, he was so divorced from the
circumstances that it was not an honest belief. Thus, the defendant should be entitled only to an insanity defense.
(3) This belief must be reasonable. What are the characteristics of the defendant that make the belief reasonable?
What is the jury allowed to consider?
Reasonable person. This is a standard; it is what the defendant is measured against. In State v. Leidholm, the courts
consider self-defense for a victim of domestic abuse who stabbed her husband while he slept. The defendant should be
held to a “subjective” standard of reasonableness. This effectively asks whether she was acting reasonable, because the
jury is to consider all relevant characteristics of her. Subjective reasonableness views the circumstances attending the
accused’s use of force from the standpoint of the accused to determine if they are sufficient to create an honest and
reasonable belief as to the necessity of the use of force. Thus, the jury should “know what the accused knows and see
what the accused sees.” The physical and psychological characteristics of the defendant matter. Leidholm raised a
battered woman syndrome defense, which the court argued did not require its own instruction. Coleman disagreed.
Though the defendant’s past experiences are relevant, it is worth noting that past experiences with the same person are
much more relevant than past experiences with someone who has the defendant’s characteristics. There is some limit on
the characteristics that the jury should be allowed to consider, e.g., more attenuated experiences. There is a bar of
relevance.
Notably, this standard is not the same everywhere. In People v. Goetz, the New York approach was clarified to be an
“objective test” of reasonableness. However, the court notes that reasonableness should be based on the circumstances
facing a defendant, or his situation. Thus, the jury should consider any relevant knowledge, physical attributes, prior
experiences that would inform the reasonableness of the defendant’s actions. In Goetz, the past experiences that would
be relevant would be those that provide a reasonable basis for a belief that another person’s intentions were to injure or
rob him. While this could be construed broadly, it probably shouldn’t.
The difference between the Goetz and the Leidholm cases seems like one of blameworthiness. In Leidholm, the end goal of
the inquiry is to discuss whether we believe the defendant should be held responsible. In Goetz, the end question is
whether the defendant’s actions were wrong under the circumstances.
“Reasonable to him” is not the standard, there must be some degree of objectivity beyond whether the defendant
believed himself to be reasonable.
Expert testimony. In Minnesota and other jurisdictions, there is a limitation on expert witnesses, such that they can
testify to battered woman’s syndrome in abstract but cannot testify as to the ultimate issue.
Learned helplessness. Dr. Walker has created a standard of “learned helplessness” for BWS, such that the women
believe there is no escape, and therefore, they must act. However, Dr. Walker provides no satisfactory answer for why
the battered woman kills during a non-confrontational moment.
(4) Did the defendant make a mistake in perceiving the threat?
In New York, self-defense then becomes irrelevant. In other jurisdictions, honest mistake has the effect of provocation.
Under the Model Penal Code and in Leidholm, the court looks at what the mental culpability was with regard to the
mistake.
(5) The defendant cannot have provoked the threat.
Provocation. In People v. Gleghorn, the defendant beat the victim after the victim shot him with an arrow. The defendant
was justified in responding to the victim’s deadly force only if he had not provoked that attack. The court relies on the
appearance of danger that the defendant created, rather than actual danger. Thus, the question was whether it was
reasonable for the victim to believe that the defendant’s original attack put him in danger. The court determined that the
jury could reasonably find that the victim acted reasonably. Further, in California, if the defendant continues to use
force after the need for such force disappears, the defendant can be guilty of that further retaliation.
- 42 -
Self-defense is not available for felony murder. The act itself has created a circumstance where it was highly likely that
serious physical harm would result. In State v. Amado, self-defense was unavailable when the defendant attempted to rob
someone he thought had taken cocaine from him, then the victim responded with force and the defendant shot him.
(6) The defendant has a duty to retreat if possible.
Duty to retreat. In People v. La Voie, the defendant shot men who pushed his car through an intersection. It is unclear
that he was unable to retreat or to wait in his car for the police. They were pushing his car, so it seems unlikely he could
simply have stopped. From a utilitarian perspective, the duty to retreat where possible is very important.
There is an interest in standing one’s ground, but that interest pales to the interest in preserving human life. However,
retreat is not required from one’s own “castle.” A majority of courts have expanded that exception to one’s business.
In Cooper v. United States, the defendant was not entitled to a “castle” instruction when he killed his brother, a cooccupant. However, applying that to battered wives is tougher. Retreat, paradoxically, might be more dangerous than
remaining. “Make-my-day” laws allow deadly force when you believe someone has made unlawful entry to your
dwelling and where you have a reasonable belief that they have committed a crime.
Further, the defendant must be able to retreat safely. In Commonwealth v. Eberle, the potential that a door was locked, it
was around the corner, and there was debris in the way contributed to a belief that there was no way the door could be
reached safely.
Proportional use of force. The defendant must act proportionally to the threat, but it need not bring proportional
harm. Generally, you cannot use deadly force to defend property. Not every burglary justifies deadly force, thus, in
People v. Ceballos, the defendant was not justified in making a trap gun. This use of force could not be reasonable,
because it is not discerning.
3.
What is the result of pleading self-defense?
Standard. The standard for self-defense is: “when a person has reasonable grounds for believing, and does in fact
actually believe, that danger of his being killed, or of receiving great bodily harm, is imminent, he may act on such
appearances and defend himself, even to the extent of taking human life when necessary, although it may turn out that
the appearances were false, or although he may have been mistaken as to the extent of the real or actual damage.”
Model Penal Code approach. First, review MPC §3.09. If the defendant subjectively believed her life was in danger,
but the defendant makes a mistake, the defendant may still be entitled to a self-defense claim. However, if this mistake
was caused by recklessness or negligence, self-defense is unavailable as a defense. Instead, the defendant will be charged
with a reckless or negligent crime (e.g., manslaughter). Further, the defendant cannot provoke the original attack against
her or fail to retreat if retreat is reasonable.
Defense. Note that, in real life, in the heat of the moment, it is more difficult to assess the danger you face. In Goetz,
even though the defendant testified that there was a pause where he deliberated, he wasn’t able to decide that.
Limit. You must stop using force once the danger dissipates.
Imperfect self-defense. If the defendant is unreasonable but honest in her belief that there is an emergency, the
defendant has an “imperfect self-defense” claim. In some jurisdictions, this acts like a provocation defense and reduces
the charge from murder to voluntary manslaughter. In the MPC, the defendant is then charged with homicide at the
requisite level of mental culpability. The mechanisms for imperfect self-defense are the same as those for adequate
provocation. The defendant acted intentionally, her conduct fit the definition of the offense, and we are unwilling fully
to justify her actions. However, we believe that her liability should be mitigated. In some jurisdictions, imperfect selfdefense is unavailable.
Balancing of harms. Paul Robinson notes that self-defense is similar to a choice-of-evils defense. However, he notes
that no innocent party is harmed and societal interests in peace are furthered. Further, the aggressors have brought
further intangible evils from their aggression. Thus, the defendant may be justified in using disproportionate force to
respond.
- 43 -
Justified/excused. A person is justified in self-defense only if their belief accords with reality. A person is excused in
self-defense if they make a reasonable mistake as to the circumstances. However, self-defense requires that the belief
was both honest and reasonable.
c. Choice of evils
1)
Commented [AT10]: Do you have to be reasonable?
The defendant must reasonably believe that their crime is necessary to avoid a harm or evil to himself or to
another.
Formulaic conditions. In People v. Unger, the defendant claimed that he escaped from prison to avoid an imminent
threat of serious bodily harm. The State points to several alternatives to escape the defendant could have used. The
court holds that there is no formula for a necessity defense. Instead, the jury can take alternatives into account when
considering the necessity of the defendant’s actions. The overall question, however, is whether the actor believes the
crime necessary to avoid a greater harm or evil.
2)
The defendant’s crime must be lesser than that sought to be prevented.
Outside of the killing of innocents, this is a utilitarian question where we consider a choice to do the lesser harm or to
further a greater societal benefit to not be a wrongful act.
3)
The defendant cannot be reckless or negligent in bringing about the circumstance that required the choice of
evils.
Bringing about. Under the MPC, the defendant cannot use a choice of evils defense if the actor was reckless or
negligent in bringing about the situation requiring the choice of evils and there is a definition of the offense that requires
recklessness or negligence.
Killing of innocents. In The Queen v. Dudley & Stephens, the defendants killed and ate the weakest and least attached of
their crewmates when shipwrecked. The defendants would have starved to death without killing him. The court held
that there were no circumstances where one can kill an innocent. Self-defense is appropriate, but in self-defense the
victim was an aggressor, and therefore, not innocent. The court acknowledges that the standard is high, but it suggests
that the law should create standards higher than it can meet. The judge here is utilitarian in seeking deterrence of the act,
but he is retributive in judging the wrongfulness of the defendants’ act even understanding that such conduct may not be
deterrable.
The Model Penal Code provides an example of a case where necessity or choice of evils is a defense. A mountain
climber is tied to another climber. The first falls, and there is no way for both to make it to the top. In order to save
herself, the second climber can cut the first loose. Coleman notes that, in this example, the victim put herself in that
position. In the case of the boat, the defendants chose the person who died. In the mountain climber example, nature,
or the victim herself, chose who was to die.
Choice of evils seems typically to be a justification defense.
Imminence. In State v. Warshow, the defendants trespassed to protest a nuclear facility because they were worried about
a meltdown. The majority notes that choice of evils is insufficient, because there must be an imminent and compelling
emergency with no reasonable opportunity to avoid injury without the action. This isn’t really a necessity defense,
because it imposes some requirement of reasonable fear. Shouldn’t the court care only about the choice of a lesser evil
that makes the defendant’s act not to be wrongful? (maybe, for an act not to be wrongful, it must also be less
calculated). The dissent in Warshow rejects the majority’s dismissal of the political arguments of the defendants. There
shouldn’t be so much faith in the legislature to get the issue right. Nor should the magnitude of the harm should the
defendants be right be discounted.
d. Duress
Not available as a defense to the killing of an innocent person.
Someone has threatened the defendant or the defendant’s family with physical injury or death but for the wrongful act.
- 44 -
(1) Not guilty of conduct done under the compulsion or threat of imminent infliction of death or great bodily
harm, if he reasonably believes that death or great bodily harm will come to himself or those close to him if he
does not perform.
This fear must be reasonable. The fear must be for the safety of yourself or another person. It cannot be fear of
property.
(2) The defendant cannot willfully or wantonly place himself in a situation where it is probable he will be subjected
to compulsion.
This is an issue in State v. Crawford, as the court responds to the defendant’s claim that he was chemically dependent and
saw no escape from the coercer. The court notes that the defendant willfully placed himself in that position. In Williams
v. State, the defendant committed forced breaking and entering after being abducted. He told the coercers where the
house was that they broke into. However, the defendant had borrowed money from a drug dealer. This conduct
contributed mightily to the duress he was later subjected to.
(3) The compulsion must be present, imminent, and impending. It must be continuous, without reasonable
opportunity to escape. A threat of future injury is insufficient.
Ability to escape. In State v. Crawford, the defendant had plenty of opportunities to escape and to inform the police.
Further, there was no definite threat to himself or to his son. The interpersonal relations between the two parties, and
the defendant’s chemical dependence, do not make his fear from the threat more reasonable. Also, the defendant
willfully and wantonly put himself in that position.
In United States v. Concheto-Pachon, the defendant was not guilty of drug smuggling, because the defendant was threatened
into cooperating due to threats against his wife and his children. The Sixth Circuit, differently from in State v. Crawford,
determined that the real question is whether he had a reasonable opportunity to escape. The court found that he
reasonably could have believed his family had an imminent threat of danger, and that he had no reasonable opportunity
for escape.
Model Penal Code. The defendant was coerced into an offense by use of or threat to use unlawful force against his
person or the person of another, that a person of reasonable firmness in his situation would have been unable to resist.
The defendant cannot recklessly have placed himself in a situation where such duress was probable. Or negligently,
when negligence established culpability for the offense charged. Temperament is not considered in judging the
defendant’s “situation.”
Duress does not negate the mental element of a crime.
e. Mental illness
When is reason (cognitive) or control (volitional) by mental illness that he should be excused.
1)
2)
The M’Naughton Rule:
a. Labors under such a defect of reason that he did not know nature and quality of act or that what he
was doing was wrong.
b. Doesn’t deal with volitional issues.
c. The M’Naghton rule is that the defendant did not know wrong. Under ALI, it’s simply appreciate.
ALI:
a. Mental disease or defect resulted in lacking substantial capacity to appreciate criminality of his
conduct or to conform conduct to the law.
b. Irresistible impulse
i. In Smith, both parties agreed he was psychotic, but the defense says he couldn’t control his
conduct.
ii. Being organized is not necessarily evidence of a lack of mental illness.
c. Doesn’t depend on whether defendant knows the law. Therefore, what they’re really saying is that the
defendant cannot appreciate the difference between right and wrong.
- 45 -
3)
Durham rule:
a. Defendant’s conduct was the product of a mental disease or defect. In the absence of this mental
illness, would not have committed the crime.
In Cerravo, the defendant tried to hide his killing his wife because he knew it was criminal, but not that it was wrong. In
Gates, she was charged because she appreciated that her acts were wrong because the devil told her to.
After Hinckley, a lot of states shifted the burden to the defendant.
Show a history of mental health issues.
For quasi-insanity defenses, the question is whether it has the same impact that traditional mental diseases have in
excusing conduct, and is it connected to the defendant here. Is this the kind of behavior that, say, a gambling addict
would engage in?
4) Inchoate Crimes
a. Attempt
SECTION 5.01. CRIMINAL ATTEMPT
(1) Definition of Attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability
otherwise required for commission of the crime, he:
a. purposely engages in conduct that would constitute the crime if the attendant circumstances were as
he believes them to be; or
b. when causing a particular result is an element of the crime, does or omits to do anything with the
purpose of causing or with the belief that it will cause such result without further conduct on his part;
or
c. purposely does or omits to do anything which, under the circumstances as he believes them to be, is
an act or omission constituting a substantial step in a course of conduct planned to culminate in his
commission of the crime.
(2) Conduct That May Be Held Substantial Step Under Subsection (1)(c). Conduct shall not be held to constitute a
substantial step under Subsection (1)(c) of this Section unless it is strongly corroborative of the actor’s criminal
purpose. Without negativing the sufficiency of other conduct, the following, if strongly corroborative of the
actor’s criminal purpose, shall not be held insufficient as a matter of law:
a. lying in wait, searching for or following the contemplated victim of the crime;
b. enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for
its commission;
c. reconnoitering the place contemplated for the commission of the crime;
d. unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be
committed;
e. possession of materials to be employed in the commission of the crime, that are specially designed for
such unlawful use or which can serve no lawful purpose of the actor under the circumstances;
f. possession, collection or fabrication of materials to be employed in the commission of the crime, at or
near the place contemplated for its commission, where such possession, collection or fabrication
serves no lawful purpose of the actor under the circumstances;
g. soliciting an innocent agent to engage in conduct constituting an element of the crime.
(3) Conduct Designed to Aid Another in Commission of a Crime. A person who engages in conduct designed to
aid another to commit a crime that would establish his complicity under Section 2.06 if the crime were
committed by such other person, is guilty of an attempt to commit the crime, although the crime is not
committed or attempted by such other person.
- 46 -
(4) Renunciation of Criminal Purpose. When the actor’s conduct would otherwise constitute an attempt under
Subsection (1)(b) or (1)(c) of this Section, it is an affirmative defense that he abandoned his effort to commit
the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary
renunciation of his criminal purpose. The establishment of such defense does not, however, affect the liability
of an accomplice who did not join in such abandonment or prevention. Within the meaning of this Article,
renunciation of criminal purpose is not voluntary if it is motivated, in whole or in part, by circumstances, not
present or apparent at the inception of the actor’s course of conduct, that increase the probability of detection
or apprehension or which make more difficult the accomplishment of the criminal purpose. Renunciation is
not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous time
or to transfer the criminal effort to another but similar objective or victim.
Definition. Acting under the circumstances as she believed them to be, the defendant acted in a way that constituted a
substantial step, strongly corroborating criminal purpose, in a course of conduct planned to result in the commission of
a crime, without completely and voluntary renouncing her criminal purpose. Off of the substantial step, the MPC
provides for two “special cases.” If the attendant circumstances are not as the defendant believes, but the defendant acts
with the intent to commit the crime, the defendant is guilty of attempt. If it is a result crime, and the defendant acted
such that she assumed no other action was needed for the result, the defendant is guilty of attempt.
Attempt, therefore, requires us to look for what the defendant knew and believed while she acted.
Why we punish attempts. Retributivist arguments for punishing attempt point to the fortuity of success. It is unjust
to punish one and not the other when the difference between their acts is the chance that it succeeds. Utilitarian
arguments for punishing attempt point to a more complete deterrence, because the likelihood of punishment increases.
Finally, punishing attempt helps law enforcement prevent harm. When an overt act demonstrates a criminal intent
beyond a reasonable doubt, but law enforcement can prevent the full extent of the harm, attempt laws provide a means
by which law enforcement can prevent the harm.
Grading. The MPC punishes attempt the same as the attempted offense. Almost no jurisdiction follows suit.
Mens rea. Attempt is a specific intent crime. Thus, the defendant must actually intend to commit a crime in order to
be charged with intent. As a result, you cannot attempt a reckless or negligent crime, because you cannot intend to be
reckless in the future. In State v. Lyerla, the defendant was charged with reckless murder of some individuals and
attempted second-degree reckless murder of others after he fired into their car. The SD Supreme Court overturned on
the grounds that you cannot attempt to commit a reckless crime.
Substantial step. A step is substantial if it strongly corroborates criminal intent. It is, in effect, an overt act. However,
it is not an overt act that is itself criminal. Instead, the act strongly corroborates the criminal intent to commit a further,
proscribed act. In the common law, the court looked to the proximity to the actual offense. In the MPC, the court
looks to the actual steps taken. Thus, in People v. Murray, the common law court held that the defendant’s attempt to
marry his niece was not proximate to commission, because the parties were not before a magistrate where, but for
interference, the event would have occurred. Under the MPC, the court would have looked at how closely his overt acts
demonstrated his intent to marry his niece. It is likely beyond a reasonable doubt that the act of calling a magistrate was
motivated by an intent to marry his niece and the beginning of commission thereof.
Here, a distinction is drawn with preparatory acts. Preparatory acts may be criminal in their own right, but they are not
attempt. An attempt is the beginning of a commission. In People Murray, the court must ask whether the defendant’s act
indicates he had begun commission. One could certainly argue that Murray had begun to marry his niece. Compare this
act with that in People v. Rizzo. The defendant was looking for a specific person to rob. He had not found this man.
Thus, the court found that the act was not proximate to actual commission of a robbery (using the common law
approach). Under the MPC approach, the question is probably closer. The defendant was driving around with a gun
looking for the man. However, without the opportunity to rob this man, it is unlikely that he had taken an actual
substantial step.
- 47 -
Commented [AT11]: Is this a fair definition of substantial
step?
The MPC, in §5.01(2), provides for several enumerated sufficient acts. These include lying in wait, searching for or
following the contemplated victim.
Proving substantial step. In United States v. Buffington, the police had an informant who provided the details of a plan
to rob a bank. Those details allowed the jury to infer criminal intent from otherwise ambiguous acts. Frankly, this
evidence makes me uncomfortable. We are far afield from retributive justifications for criminalizing attempt. We simply
have more information that allows us to infer criminal intent earlier. In People v. Thousand, the defendant agreed to meet
what he thought was an underage girl, and they planned their meeting. He was following the plan.
The question is whether we can infer from this substantial step a criminal intent beyond a reasonable doubt. Buffington
establishes that we are looking for acts that we understand to be done through criminal intent, either because
corroborating evidence or common sense tells us that the defendant has moved past preparation and into commission.
In People v. Staples, the defendant’s substantial step was when he began drilling into the floor, even though he still had the
ability to renounce. Obviously, doing something that is not criminal because of a mistake of the circumstances is still an
attempt.
However, in addition to corroborating criminal intent, the act must also be a step beyond preparation. The court must
find that commission had begun.
Renunciation. Once you have taken a substantial step, you can only abandon by a complete and voluntary
abandonment (under MPC 5.01(4)). The renunciation is not voluntary if it is motivated in whole or part by
circumstances not present or apparent at the start which increase the probability of detection or apprehension or which
make accomplishment more difficult. So in People v. Staples, the defendant may have stopped drilling and stopped going
to the office. However, he had clearly attempted robbery when he began drilling through the floor. The court read into
the facts that the defendant knew that the landlord had regained control of the office, and therefore, that the defendant’s
renunciation was not voluntary. The defendant can voluntarily renounce after being talked out of it. This law exists so
that you cannot present a defense of abandonment simply because you were going to be caught. In State v. Andow, the
statute simply allowed the conduct if the defendant returned the child within 14 days of taking her.
Transferred intent. In People v. Bland, the court similarly rejected the notion that one can transfer attempt, that is, when
trying to kill one person, one does not automatically attempt to kill those around the intended victim. If one of them
were to die, the court will transfer the malice. The court in Bland is somewhat unclear, but it seems like the transferred
attempt is too attenuated. A “kill zone” theory allows the jury to find that, based on the manner in which death was
attempted, the killer intended to kill others around the intended victim. For example, if the defendant put a bomb on a
plane. In Bland, if the defendant had fired indiscriminately with an automatic gun, perhaps he has established a kill zone.
Solicitation. A defendant is guilty of solicitation if she, with the purpose of promoting or facilitating its commission,
commands, encourages, or requests another person to engage in a specific conduct which would constitute such crime
or an attempt to commit such crime, or that would establish his complicity in its commission or attempted commission.
Solicitation is a crime even if the solicitee is unaware of the request. Renunciation is possible only by persuading or
preventing the solicited crime.
Usually merges with attempt or conspiracy.
Solicitation can mature into attempt. In People v. Superior Court, Decker both solicited the crime and paid for it, giving
further information and a plan. Thus, he not only solicited the crime, but his subsequent conduct, in addition to the
solicitation, was an attempt. He finalized details and paid. In People v. Saephanh, the court held that attempted solicitation
was possible, when prison took letter. In State v. Everett, the defendant got a third-party to solicit, thus they entered into
a conspiracy.
Impossibility. There are circumstances where the defendant attempted an impossible crime. For example, the
defendant attempted to kill someone by shooting an empty bed on the mistaken belief that the intended victim was
asleep there. The common law held a distinction between legal and factual impossibility. Factual impossibility (e.g.,
- 48 -
Commented [AT12]: Wouldn’t this cover Rizzo.
picking an empty pocket) was not a defense to attempt; only the fortuity of circumstances made the crime impossible.
Legal impossibility was a defense to attempt. Had the defendant been successful in, say, bribing a non-jury member, the
result could not have been an offense. In Booth v. State, the defendant attempted to buy stolen property that was no
longer stolen. Thus, he had not attempted to buy stolen property at all. The defendant was not guilty.
In People v. Thousand, the court held that while “pure” legal impossibility was a defense (where the criminal law proscribed
neither the defendant’s acts or intended result) and all other hybrids. The defendant argued that he was chatting with
someone over the age of consent, so he did not attempt to distribute obscene materials to a minor. However, the court
held that the difference between factual and legal impossibility was too small, and impossibility is not a defense.
The Fletcher rational motivation test is a common law test, suggesting that impossibility should be an offense only if the
defendant’s conduct would have changed if they were aware of their mistake. A defendant would not pick a pocket she
knew to be empty, but she may purchase a cheap jacket she knew not to be stolen. Mistaken beliefs are relevant if they
affect the defendant’s incentive in acting.
The Model Penal Code test is MPC §5.01(1)(a): “purposely engages in conduct that would constitute the crime if the
attendant circumstances were as he believes them to be.” Consider a case where the defendant uses a bomb made of
fruit. Under the rational motivation test, the question is whether the defendant would have put the fruit under the house
if he knew it was not a real bomb. It seems clear he wouldn’t, so he is guilty. Under the MPC, the question is whether
the defendant believed the attendant circumstances to be that the fruit was a bomb. If so, then the MPC assumes that
his act of placing it there demonstrates his willingness to use alternative means if he is wrong.
For example, in People v. Dlugash, the defendant shot a man who he believed (he says) was dead. Thus, under the MPC,
he clearly could not be charged. This frankly seems more like a mistake of fact case, where the defendant lacked the
mens rea to have committed the crime. Under Fletcher, Thousand could be a legal impossibility, because the defendant
may have desired simply to play-act sending nude photos to an underage girl. This is undermined by the defendant then
seeking to meet the victim. Under the MPC, Thousand thought the attendant circumstances were that he was messaging
an underage girl, so he is likely guilty.
This test would allow criminal liability for a man who thinks he steals an umbrella that is his own. Coleman opines that
the court likely would choose not to prosecute.
b. Complicity
MPC § 2.06. COMPLICITY
1)
2)
3)
4)
A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for
which he is legally accountable, or both.
A person is legally accountable for the conduct of another person when:
a. acting with the kind of culpability that is sufficient for the commission of the offense, he causes an
innocent or irresponsible person to engage in such conduct; or
b. he is made accountable for the conduct of such other person by the Code or by the law defining the
offense; or
c. he is an accomplice of such other person in the commission of the offense.
A person is an accomplice of another person in the commission of an offense if:
a. with the purpose of promoting or facilitating the commission of the offense, he
i. solicits such other person to commit it; or
ii. aids or agrees or attempts to aid such other person in planning or committing it; or having a
legal duty to prevent the commission of the offense, fails to make proper effort so to do; or
b. his conduct is expressly declared by law to establish his complicity.
When causing a particular result is an element of an offense, an accomplice in the conduct causing such result
is an accomplice in the commission of that offense, if he acts with the kind of culpability, if any, with respect to
that result that is sufficient for the commission of the offense.
- 49 -
5)
A person who is legally incapable of committing a particular offense himself may be guilty thereof if it is
committed by the conduct of another person for which he is legally accountable, unless such liability is
inconsistent with the purpose of the provision establishing his incapacity.
6) Unless otherwise provided by the Code or by the law defining the offense, a person is not an accomplice in an
offense committed by another person if:
a. he is a victim of that offense; or
b. the offense is so defined that his conduct is inevitably incident to its commission; or
c. he terminates his complicity prior to the commission of the offense and
i. wholly deprives it of effectiveness in the commission of the offense; or
ii. gives timely warning to the law enforcement authorities or otherwise makes proper effort to
prevent the commission of the offense.
7) An accomplice may be convicted on proof of the commission of the offense and of his complicity therein,
though the person claimed to have committed the offense has not been prosecuted or convicted or has been
convicted of a different offense or degree of offense or has an immunity to prosecution or conviction or has
been acquitted.
Definition. Accessory liability is simply a means by which a substantive crime may be committed. There is no practical
difference between committing a crime as a “principal” and as an “accessory,” if both have the requisite mental
culpability. Under the MPC, a defendant is an accomplice if, with the purpose of promoting or facilitating the
commission of the offense, he solicits the other person to commit it, or aids or agrees or attempts to aid the other
person in planning or committing it, or (having a legal duty to prevent the crime) fails to make the proper effort to
prevent it.
Accomplice liability. When you’re an accomplice and there is a death, you can be liable under (1) felony murder, (2)
accomplice liability, or (3) conspiracy.
Actus reus. The defendant must voluntarily provide assistance or encouragement. This must be an external
manifestation. Accessory liability includes encouragement. Mere presence is not enough. In State v. Walden, the
defendant was present when her boyfriend hit her son, and she had a duty to stop it, so her omission was seen as an act
of encouragement. Coleman disagrees without a specific statute. While the defendant may act in a way that furthers the
crime, the defendant must also share in the intent to commit the crime; that is, she must have been acting with the intent
to encourage her boyfriend to harm her child. In Tally, the court had two requirements: (1) the act must be intended to
further the principal’s design, and (2) his act must contribute to the effectuation of their design. It is enough that the
defendant made it easier to accomplish their end (deprived of a single chance).
The defendant’s act is wrong because it removed a scenario in which the crime does not happen. However, it is hard to
see how the defendant is as culpable as the principal.
Abandonment. The defendant can renege her complicity. However, she must wholly deprive the complicity of its
effectiveness. If that is impossible, she can give timely warning to the police or make proper efforts to prevent
commission. This need not be voluntary. In State v. Formella, the defendant did not take such efforts. Given that the
principals had already begun the crime, the defendant could not deprive his complicity of its impact unless he warned
someone of the commission. A defendant could be fine beforehand if he let the principals know that he no longer
intended to aid in the commission, thereby giving the principals a fair opportunity to reconsider. If the defendant was
an accessory before the fact by, say, giving information to the principals, the defendant cannot simply express an intent
not to aid. That was an issue in People v. Beeman.
Mens rea. Accomplice liability is a strict liability crime. It has two elements. First, the defendant must share the intent
to commit the underlying crime. Second, the defendant must have acted intentionally in facilitating the crime. This
intent can be formed at the scene. That’s because accomplice liability is a means to committing a crime, so the defendant
must share in the underlying level of mental culpability for the committed offense. However, because the defendant’s
act is attenuated from actual commission, the defendant must also act with intent in their complicit actions.
- 50 -
Commented [AT13]: ASK COLEMAN
In Gains v. State, the defendant was driving a car, but there was no evidence he knew that the people he was driving had
robbed a bank, and the police saw the people in the car whisper to the driver. Therefore, his driving the car, while it
facilitated their crime, was not necessarily done with the intent to facilitate the crime.
Intent to aid. The Beeman test establishes that the defendant must share the specific intent of the perpetrator. That is,
the defendant must act with at least knowledge of the perpetrator’s criminal purpose and the intent to commit,
encourage, or facilitate the offense. Thus, the defendant must have a specific intent to aid. In Beeman, the court extends
the liability to the natural and reasonable consequences.
1)
2)
3)
Knowledge of the unlawful purpose of the perpetrator,
Intent or purpose of committing, encouraging, or facilitating the commission of the offense, and
By act or advice aids, promotes, encourages or instigates, the commission of the crime.
This means that generally the defendant must intend to facilitate a crime, not simply expect. However, in US v.
Giovanetti, Judge Posner rejected the broadness of the ostrich instruction. The defendant cannot simply avoid learning
criminal intent of the principal. The defendant must take active steps to avoid learning.
Intent for the underlying crime. Further, the defendant must share the criminal purpose of the principal. In Wilson v.
People, the evidence showed the defendant acted only to incriminate the principal. Thus, the defendant did not have a
common design in facilitating the crime, but instead acted to incriminate the principal. In State v. Hohensee, the court had
a similar problem, where the principals did not have the requisite criminal purpose, but the defendant was the lone
member of the group who did have it. Subtracting the actions of the police, who were not committing the crime, the
defendant had a criminal purpose, but his actions were simply standing on the street corner. Because accomplice liability
is a means of committing a crime, the defendant could not possibly have committed a crime here. In State v. Hayes, the
defendant was not guilty of burglary when the person who he helped burgle a store is only doing it to entrap him.
Reckless or negligence crimes. In State v. Etzweiler, the court held that the defendant could not have had a common
design for the defendant to be negligent. Coleman argues that in some jurisdictions, if the defendant is present, and
therefore is able to judge the risk for herself and continue to encourage it, the defendant could be liable. This principle
makes sense, the defendant has undeniably committed the intentional act through means. The issue with Etzweiler is that
the defendant was charged with negligent homicide, which is not a natural and probably consequence of the crime.
Strict liability crimes. In State v. Bowman, the court holds that a person cannot be an accomplice to a statutory rape,
because the intent to be an accomplice is the specific intent to commit the target offense, so unawareness that victim
was underage removes that requirement. In Commonwealth v. Harris, the court introduces a presence and non-presence
theory. If the accomplice is present to witness the strict liability, they had the ability to judge for themselves whether,
say, the victim is underage, and therefore they are guilty. If the defendant is present or is aware of the age, then the
defendant is liable. This is for certain jurisdictions. Coleman thinks presence also works for negligent or reckless
crimes. Possibility that it’s a presence theory and not just the Bowman theory that there can’t be liability for strict
liability.
Secondary crimes. In Rosemond v. United States, the court held that the defendant and the perpetrator must share a
common design in order for the defendant to be complicit in the perpetrator’s crime. Here, the defendant was unaware
the perpetrator had a gun. If the defendant is unaware of the perpetrator’s crime, the defendant did not have the
opportunity to choose to associate, and choice is important. Further, the defendant could not have sought to make that
crime succeed.
The People v. Kessler court is an alternative to the Rosemond court. In Kessler, the defendant is complicit in an underlying
crime. The court holds that, in choosing to be complicit in that crime, the defendant should also be liable for the
foreseeable additional crimes or for crimes done in furtherance of the crime. Thus, where the defendant chose to
participate in a robbery, and where attempted murder was done in furtherance of that design, the defendant is liable for
her acts that made that attempted murder more likely.
- 51 -
Commented [AT14]: How broad is this?
c. Conspiracy
1)
2)
3)
4)
5)
6)
7)
Definition of Conspiracy. A person is guilty of conspiracy with another person or persons to commit a crime if
with the purpose of promoting or facilitating its commission he:
a. agrees with such other person or persons that they or one or more of them will engage in conduct
that constitutes such crime or an attempt or solicitation to commit such crime; or
b. agrees to aid such other person or persons in the planning or commission of such crime or of an
attempt or solicitation to commit such crime.
Scope of Conspiratorial Relationship. If a person guilty of conspiracy, as defined by Subsection (1) of this
Section, knows that a person with whom he conspires to commit a crime has conspired with another
person or persons to commit the same crime, he is guilty of conspiring with such other person or persons,
whether or not he knows their identity, to commit such crime.
Conspiracy With Multiple Criminal Objectives. If a person conspires to commit a number of crimes, he is guilty
of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous
conspiratorial relationship.
Joinder and Venue in Conspiracy Prosecutions.
a. Subject to the provisions of paragraph (b) of this Subsection, two or more persons charged with
criminal conspiracy may be prosecuted jointly if:
i. they are charged with conspiring with one another; or
ii. the conspiracies alleged, whether they have the same or different parties, are so related that
they constitute different aspects of a scheme of organized criminal conduct.
b. In any joint prosecution under paragraph (a) of this Subsection:
i. no defendant shall be charged with a conspiracy in any county [parish or district] other than
one in which he entered into such conspiracy or in which an overt act pursuant to such
conspiracy was done by him or by a person with whom he conspired; and neither the liability
of any defendant nor the admissibility against him of evidence of acts or declarations of
another shall be enlarged by such joinder; and
ii. the Court shall order a severance or take a special verdict as to any defendant who so
requests, if it deems it necessary or appropriate to promote the fair determination of his guilt
or innocence, and shall take any other proper measures to protect the fairness of the trial.
Overt Act. No person may be convicted of conspiracy to commit a crime other than a felony of the first or
second degree, unless an overt act in pursuance of such conspiracy is alleged and proved to have been
done by him or by a person with whom he conspired.
Renunciation of Criminal Purpose. It is an affirmative defense that the actor, after conspiring to commit a
crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary
renunciation of his criminal purpose.
Duration of Conspiracy. For purposes of Section 1.06(4) [relating to periods of limitation for bringing
prosecutions—ed.]:
a. conspiracy is a continuing course of conduct that terminates when the crime or crimes that are its
object are committed or the agreement that they be committed is abandoned by the defendant and by
those with whom he conspired; and
b. such abandonment is presumed if neither the defendant nor anyone with whom he conspired does
any overt act in pursuance of the conspiracy during the applicable period of limitation; and
c. if an individual abandons the agreement, the conspiracy is terminated as to him only if and when he
advises those with whom he conspired of his abandonment or he informs the law enforcement
authorities of the existence of the conspiracy and of his participation therein.
Agreement between two or more people to commit a crime. The criminal act is the agreement itself. In some, but not
all jurisdictions, an overt act is also required, but it can be an insignificant, preparatory act. The act must simply show
that the defendants have put the conspiracy into motion.
The parties must have the purpose of committing the target offense. Otherwise, the agreement has no effect.
- 52 -
Unilateral approach would allow conspiracy without both members committing the overt act or genuinely agreeing, so
long as the defendant believed (?) or attempted (?) to agree.
In State v. Verive, the question was whether attempt is a lesser, included offense to a conspiracy. If so, the defendant can
be charged, but not punished, for both acts. First, the court uses the Tinghitella test, which proves the first offense, then
eliminates those facts and tries to prove the second offense. The two crimes both required an overt act. Here, there
were two overt acts, that the defendant struck the victim and that he went to his house. If you could allocate the
preparatory act to conspiracy and the substantial step to attempt, you are ok. The court also examines the Blockburger
test, where the question is whether the two offenses have the same statutory elements, such that one is a lesser included
offense of the first. The MPC has a merger rule, so you have the most substantial punishment.
In Callanan v. United States, the court said that the agreement itself is inherently dangerous, such that it makes sense to
punish not only for the underlying crime that is being committed now, but also for the conspiracy, which increases the
likelihood of success and the possibility of future offenses by the same group.
If there are two people, it is less likely that someone will back out and more likely that commission will occur.
Therefore, the conspiracy itself is dangerous and can be charged.
In Commonwealth v. Donoghue, the court holds that someone can conspire to commit a non-criminal but immoral act.
In Griffin v. State, accomplice liability would have required them to identify the individual police officers that they
attacked. Conspiracy allows broad liability across the fight. The court argued you don’t need direct evidence of an
agreement, but circumstantial evidence that there was an agreement to a common plan. Parallel action is not an
agreement. An agreement can be tacit.
The overt act can be committed by any member of the conspiracy. If you have not withdrawn, you are liable for that
act. Not liable for any overt acts after withdrawal. Withdrawal is available through reasonable notice to at least some
members of the group or through
In chain conspiracies, a person can be indicted for conspiring with people unknown. In United States v. Cepeda, police
experts testified that the circumstantial elements indicated there must have been a larger conspiracy to sell drugs.
However the court notes that the police did not establish the conspiracy. The consistency does not prove an agreement.
In People v. Colon, the court would not even allow testimony about how conspiracies work until the prosecution proved a
factual basis of the defendant’s conspiracy.
In People v. Lauria, the court holds that a tacit agreement can be determined when someone provides a platform for
criminal conduct. However, the platform must both know of the criminal conduct and intend to further or cooperate
with it. Knowledge is a question of fact. Intent must be proved through circumstance mainly. The court points to
inference from having a stake in the venue (e.g., overcharging this customer), selling where no legitimate use for the
goods exists (e.g., selling weighted dice), or where the volume is disproportionately high (e.g., buying large volumes of
prescription drugs). The court broadly groups these inferences into (i) special interest in the activity and (ii) the
aggravated nature of the
In the Pinkerton rule, you are liable for any conspiracy that is reasonably foreseeable and in furtherance of the
conspiracy, even if, for example, you are in jail during. In Alvarez, a defendant who is a minor participant would not be
liable for serious crimes not contemplated by the plan.
Termination. In United States v. Recio, the court holds that the impossibility of a conspiracy does not negate the
conspiracy. Conspiracy continues until withdrawal or abandonment, or until the object has been realized. You can still
be liable as an accomplice after withdrawing from the conspiracy.
Pinkerton applies to all foreseeable crimes done in furtherance of the conspiracy.
- 53 -
Harm. Conspiracy is separate from the crime, and the act of agreement makes harm more likely, either from repeated
harm or from the decreased risk that the parties will fail to act.
Conspiracy
1)
State v. Verive
a. Attempt to dissuade a witness and conspiracy to dissuade a witness
b. Agreement
c. Drove to house and beat
d. Identical elements test: eliminating evidence to support one charge and the sufficiency then of
proving the latter
e. Blockburger test: does each provision require proof of an additional fact which the other does not
2) Callanan v. United States
a. Concerted action both increases the likelihood of obtaining the criminal object and decreases the
possibility that people defect. Therefore, you can charge conspiracy and the substantive offense.
3) Griffin v. State
a. There must be a common design or purpose, but this can be inferred by two or more persons
pursuing by their acts the same unlawful object, each doing a part
b. Coleman thinks this goes way too far, and that there needs to be circumstantial evidence of an actual
formed agreement.
4) United States v. Cepeda
a. Defendant had a bunch of drug paraphernalia that might indicate that she intended to distribute it,
but there was no evidence of a sale.
b. She could be charged with conspiracy with others if the evidence was strong enough to prove the
conspiracy.
5) People v. Colon
a. Simply getting an expert to testify about the customs and practice of the drug trade is not enough
6) United States v. Recio
a. Government set up a sting with the drivers.
b. Affirmative evidence of abandonment, withdrawal, disavowal or defeat of the object of the conspiracy
c. A conspiracy does not automatically terminate when someone else has destroyed the conspiracy’s
object.
7) United States v. Read
a. Withdrawal marks a conspirator’s disavowal, so later acts don’t bind him, but he is liable for previous
agreement and for previous acts in pursuit of the conspiracy.
b. Here, inflating inventory
8) Smith v. United States
a. Defendant must prove he withdrew from the conspiracy
9) People v. Lauria
a. Running telephone answering service used by prostitutes
b. Need to prove he knew of the intended illegal use AND that he intended to further, promote, or
cooperate in it. The intent, when given effect by overt act, is the gist of the conspiracy.
i. Knowledge is a question of fact.
ii. Intent is generally proved circumstantially. This can be inferred from the defendant getting a
stake in the venture, from the lack of a legitimate use for the goods or services, or from a
grossly disproportionate sale (either in volume or percentage). The severity of the crime also
matters.
10) U.S. v. Gallishaw
a. Lent a machine gun, and the lendee was wishy washy about how he was going to use it.
b. The defendant must have the mens rea necessary for the substantive charge (at least, it can’t be lesser
than). Here, needed to know that it would be used in a bank robbery, and not simply be reckless to
that fact.
11) U.S. v. Feola
- 54 -
a.
12)
13)
14)
15)
16)
17)
18)
A strict liability crime of assaulting a federal officer does not require, in conspiracy, the defendants to
have any awareness of the fact that he was a federal officer.
b. Symmetry between requirements for substantive crime and for conspiracy in mens rea
U.S. v. Macias
a. Believed he was conspiring to move people across the border, not money
b. A total dupe is not a member of a conspiracy
c. Someone who is simply in denial (and does not physically change behavior not to learn) has
knowledge if they inferred what was probably going on, and is not guilty if they didn’t know, because
they had no duty to find out what was happening.
Special Mens Rea Problems
a. The Powell defense says that you can’t commit a conspiracy if you don’t know the law. The modern
approach is to have the same mens rea requirements for the conspiracy and the substantive crime.
b. State v. Borner held that conspiracy cannot be conspiracy to do something reckless.
c. People v. Horn says that an agreement that is provoked can be mitigated to manslaughter, though some
jurisdictions disagree.
d. Mitchell v. State holds that there can be a spontaneous conspiracy; Coleman disagrees
U.S. v. Diaz
a. Participating in a conspiracy to sell drugs. One of the co-conspirators brings a gun.
b. Pinkerton means each conspirator is liable for acts of every conspirator done in furtherance of the
conspiracy, unless that crime could not have been reasonably foreseen as a necessary or natural
consequence of the unlawful agreement.
c. Here, drug deals are violent
The Pinkerton Rule
a. Convicted of conspiring to violate the Internal Revenue Code for selling liquor without paying tax.
One of the conspirators was in jail during the offenses, but he was held liable for crimes committed in
furtherance of the conspiracy.
b. Either the crime was the primary goal of the conspiracy, or it was foreseeably done in facilitating
directly one of the goals.
U.S. v. Alvarez
a. A federal agent was shot during a conspiracy to sell cocaine. The court notes that the homicide was
not an originally intended crime. However, it was reasonably foreseeable due to the nature of the
criminal conspiracy.
b. All three were still convicted because they were major players and the court pointed to evidence that
they knew that deadly force may be needed.
Acts in furtherance of a conspiracy
a. Pinkerton rule
i. Similar to felony murder
ii. The Kessler decision. Some others would go further to reasonably foreseeable.
b. Complicity
c. Felony murder
i. A rule of accessorial liability
Bilateral and unilateral conspiracies
a. United States v. Fox held that the defendant can only escape a conviction for conspiracy if all other
conspirators were acquitted.
b. State v. Colon, still guilty even if everyone else is good.
c. The common view requires that you can’t be convicted of conspiracy unless there are multiple people
who can be guilty of the conspiracy (i.e., not a cop or excused).
d. The MPC has a unilateral approach
e. Federal courts don’t allow unilateral.
f. Wharton’s rule: when, to the idea of an offense, plurality of agents is logically necessary, conspiracy,
which assumes the voluntary accession of a person to a crime of such a nature that it is aggravated by
a plurality of agents, cannot be maintained.
- 55 -
i. Thus, you can’t be charged with, e.g., conspiracy to commit incest, which requires both
parties to commit the substantive crime.
ii. In Iannelli v. United States, the conspiracy involved a gambling conspiracy that could have
required people for the substantive offense who were not part of the conspiracy, and in a
broad case, they can have very disparate levels of culpability.
19) Scope of conspiracy (United States v. Liotard)
a. Common goal among the conspirators
b. Whether the agreement contemplated a continuous result that will not continue without continuous
contribution
c. The extent to which participants overlap
d. The location of the conspiracies
e. The temporal overlap between the conspiracies or between the personnel
f. The overt act.
g. For hub and spoke, the spokes are part of a larger criminal conspiracy will depend on cooperation or
knowledge of the other spokes. Or should have known. In chain, you don’t have to know all of the
others involved, but you have to know that you are helping others unknown commit a target offense.
In Blumenthal, the salesmen may not know who the owner of the liquor was, but they surely knew that
cooperation between the owners and the distributors was required.
20) U.S. v. Caldwell
a. Defendant introduced some other spoke to his hub, for selling drugs, but otherwise did not cooperate
with each other.
b. The court looked specifically at the relationship between the defendant and the person who was
busted. Introducing helped broaden Herrera’s customer base. But this wasn’t conspiratorial; it did
not evince an intent to engage in any future crimes together, but instead in two separate conspiracies.
8) Model Penal Code
9)
10)
11)
Defensive force
a. Honest belief
b. Reasonable belief
c. Force is immediately necessary/threat is imminent
d. And not
i. Provoked the threat
ii. Duty to retreat
iii. Threat is over
iv. Threat is disproportionate
Choice of evils
a. Preventing a greater harm
b. The threat must be reasonably imminent
c. And not
i. Recklessly brought situation about
Duress
a. Compulsion or threat
b. Of imminent
i. Present
ii. Impending
iii. Continuous
iv. No reasonable opportunity for escape
c. Infliction of death or great bodily harm
d. Reasonable belief
e. And not
- 56 -
12)
13)
14)
15)
1)
2)
i. Willfully or wantonly put self in position
Mental illness
Attempt
a.
Complicity
Conspiracy
a. § 1.02. PURPOSES; PRINCIPLES OF CONSTRUCTION
The general purposes of the provisions governing the definition of offenses are:
a. to forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm
to individual or public interests;
b. to subject to public control persons whose conduct indicates that they are disposed to commit crimes;
c. to safeguard conduct that is without fault from condemnation as criminal;
d. to give fair warning of the nature of the conduct declared to constitute an offense;
e. to differentiate on reasonable grounds between serious and minor offenses.
The general purposes of the provisions on sentencing, applicable to all official actors in the sentencing system,
are:
a. in decisions affecting the sentencing of individual offenders:
i. to render sentences in all cases within a range of severity proportionate to the gravity of
offenses, the harms done to crime victims, and the blameworthiness of offenders;
ii. when reasonably feasible, to achieve offender rehabilitation, general deterrence,
incapacitation of dangerous offenders, restoration of crime victims and communities, and
reintegration of offenders into the law-abiding community, provided these goals are pursued
within the boundaries of proportionality in subsection (a)(i); and
iii. to render sentences no more severe than necessary to achieve the applicable purposes in
subsections (a)(i) and (a)(ii);
b. in matters affecting the administration of the sentencing system:
i. to preserve judicial discretion to individualize sentences within a framework of law;
ii. to produce sentences that are uniform in their reasoned pursuit of the purposes of
subsection (a);
iii. to eliminate inequities in sentencing across population groups;
iv. to encourage the use of intermediate sanctions;
v. to ensure that adequate resources are available for carrying out sentences imposed and that
rational priorities are established for the use of those resources;
vi. to ensure that all criminal sanctions are administered in a humane fashion and that
incarcerated offenders are provided reasonable benefits of subsistence, personal safety,
medical and mental-health care, and opportunities to rehabilitate themselves;
vii. to promote research on sentencing policy and practices, including assessments of the
effectiveness of criminal sanctions as measured against their purposes, and the effects of
criminal sanctions upon families and communities; and
viii. to increase the transparency of the sentencing and correction system, its accountability to the
public, and the legitimacy of its operations as perceived by all affected communities.
b. § 1.13. GENERAL DEFINITIONS
In this Code, unless a different meaning plainly is required:
1) ‘‘statute’’ includes the Constitution and a local law or ordinance of a political subdivision of the State;
2) ‘‘act’’ or ‘‘action’’ means a bodily movement whether voluntary or involuntary;
3) ‘‘voluntary’’ has the meaning specified in Section 2.01;
4) ‘‘omission’’ means a failure to act;
- 57 -
5)
6)
7)
8)
9)
10)
11)
12)
13)
14)
15)
16)
‘‘conduct’’ means an action or omission and its accompanying state of mind, or, where relevant, a series of acts
and omissions;
‘‘actor’’ includes, where relevant, a person guilty of an omission;
‘‘acted’’ includes, where relevant, ‘‘omitted to act’’;
‘‘person,’’ ‘‘he’’ and ‘‘actor’’ include any natural person and, where relevant, a corporation or an unincorporated
association;
‘‘element of an offense’’ means (i) such conduct or (ii) such attendant circumstance or (iii) such a result of
conduct as
a. is included in the description of the forbidden conduct in the definition of the offense; or
b. establishes the required kind of culpability; or
c. negatives an excuse or justification for such conduct; or
d. negatives a defense under the statute of limitations; or
e. establishes jurisdiction or venue;
‘‘material element of an offense’’ means an element that does not relate exclusively to the statute of limitations,
jurisdiction, venue or to any other matter similarly unconnected with (i) the harm or evil, incident to conduct,
sought to be prevented by the law defining the offense, or (ii) the existence of a justification or excuse for such
conduct;
‘‘purposely’’ has the meaning specified in Section 2.02 and equivalent terms such as ‘‘with purpose,’’ ‘‘designed’’
or ‘‘with design’’ have the same meaning;
‘‘intentionally’’ or ‘‘with intent’’ means purposely;
‘‘knowingly’’ has the meaning specified in Section 2.02 and equivalent terms such as ‘‘knowing’’ or ‘‘with
knowledge’’ have the same meaning;
‘‘recklessly’’ has the meaning specified in Section 2.02 and equivalent terms such as ‘‘recklessness’’ or ‘‘with
recklessness’’ have the same meaning;
‘‘negligently’’ has the meaning specified in Section 2.02 and equivalent terms such as ‘‘negligence’’ or ‘‘with
negligence’’ have the same meaning;
‘‘reasonably believes’’ or ‘‘reasonable belief’’ designates a belief which the actor is not reckless or negligent in
holding.
c.
1)
2)
3)
4)
1)
§ 2.01. REQUIREMENT OF VOLUNTARY ACT; OMISSION AS BASIS OF LIABILITY;
POSSESSION AS AN ACT
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.
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.
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.
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.
d. § 2.04 IGNORANCE OR MISTAKE
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
b. the law provides that the state of mind established by such ignorance or mistake constitutes a defense.
- 58 -
2)
3)
4)
1)
2)
3)
4)
5)
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.
A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based
upon such conduct when:
a. the statute or other enactment defining the offense is not known to the actor and has not been
published or otherwise reasonably made available prior to the conduct alleged; or
b. he acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid
or erroneous, contained in (i) a statute or other enactment; (ii) a judicial decision, opinion 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.
The defendant must prove a defense arising under Subsection (3) of this Section by a preponderance of
evidence.
e. § 2.02. GENERAL REQUIREMENTS OF CULPABILITY
Minimum Requirements of Culpability. Except as provided in Section 2.05, a person is not guilty of an offense
unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each
material element of the offense.
Kinds of Culpability Defined.
a. Purposely. A person acts purposely with respect to a material element of an offense when:
i. if the element involves the nature of his conduct or a result thereof, it is his conscious object
to engage in conduct of that nature or to cause such a result; and
ii. if the element involves the attendant circumstances, he is aware of the existence of such
circumstances or he believes or hopes that they exist.
b. Knowingly. A person acts knowingly with respect to a material element of an offense when:
i. if the element involves the nature of his conduct or the attendant circumstances, he is aware
that his conduct is of that nature or that such circumstances exist; and
ii. if the element involves a result of his conduct, he is aware that it is practically certain that his
conduct will cause such a result.
c. Recklessly. A person acts recklessly with respect to a material element of an offense when he
consciously disregards a substantial and unjustifiable risk that the material element exists or will result
from his conduct. The risk must be of such a nature and degree that, considering the nature and
purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross
deviation from the standard of conduct that a law-abiding person would observe in the actor’s
situation.
d. Negligently. A person acts negligently with respect to a material element of an offense when he should
be aware of a substantial and unjustifiable risk that the material element exists or will result from his
conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it,
considering the nature and purpose of his conduct and the circumstances known to him, involves a
gross deviation from the standard of care that a reasonable person would observe in the actor’s
situation.
Culpability Required Unless Otherwise Provided. When the culpability sufficient to establish a material element of an
offense is not prescribed by law, such element is established if a person acts purposely, knowingly or recklessly
with respect thereto.
Prescribed Culpability Requirement Applies to All Material Elements. When the law defining an offense prescribes the
kind of culpability that is sufficient for the commission of an offense, without distinguishing among the
material elements thereof, such provision shall apply to all the material elements of the offense, unless a
contrary purpose plainly appears.
Substitutes for Negligence, Recklessness and Knowledge. When the law provides that negligence suffices to establish an
element of an offense, such element also is established if a person acts purposely, knowingly or recklessly.
- 59 -
When recklessness suffices to establish an element, such element also is established if a person acts purposely
or knowingly. When acting knowingly suffices to establish an element, such element also is established if a
person acts purposely.
6) Requirement of Purpose Satisfied if Purpose Is Conditional. When a particular purpose is an element of an offense, the
element is established although such purpose is conditional, unless the condition negatives the harm or evil
sought to be prevented by the law defining the offense.
7) Requirement of Knowledge Satisfied by Knowledge of High Probability. When knowledge of the existence of a particular
fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its
existence, unless he actually believes that it does not exist.
8) Requirement of Wilfulness Satisfied by Acting Knowingly. A requirement that an offense be committed wilfully is
satisfied if a person acts knowingly with respect to the material elements of the offense, unless a purpose to
impose further requirements appears.
9) Culpability as to Illegality of Conduct. Neither knowledge nor recklessness or negligence as to whether conduct
constitutes an offense or as to the existence, meaning or application of the law determining the elements of an
offense is an element of such offense, unless the definition of the offense or the Code so provides.
10) Culpability as Determinant of Grade of Offense. When the grade or degree of an offense depends on whether the
offense is committed purposely, knowingly, recklessly or negligently, its grade or degree shall be the lowest for
which the determinative kind of culpability is established with respect to any material element of the offense.
1)
2)
3)
4)
1)
2)
f. § 2.03. CAUSAL RELATIONSHIP . . .
Conduct is the cause of a result when:
a. it is an antecedent but for which the result in question would not have occurred; and
b. the relationship between the conduct and result satisfies any additional causal requirements imposed
by the Code or by the law defining the offense.
When purposely or knowingly causing a particular result is an element of an offense, the element is not
established if the actual result is not within the purpose or the contemplation of the actor unless:
a. the actual result differs from that designed or contemplated, as the case may be, only in the respect
that a different person or different property is injured or affected or that the injury or harm designed
or contemplated would have been more serious or more extensive than that caused; or
b. the actual result involves the same kind of injury or harm as that designed or contemplated and is not
too remote or accidental in its occurrence to have a [just] bearing on the actor’s liability or on the
gravity of his offense.
When recklessly or negligently causing a particular result is an element of an offense, the element is not
established if the actual result is not within the risk of which the actor is aware or, in the case of negligence, of
which he should be aware unless:
a. the actual result differs from the probable result only in the respect that a different person or different
property is injured or affected or that the probable injury or harm would have been more serious or
more extensive than that caused; or
b. the actual result involves the same kind of injury or harm as the probable result and is not too remote
or accidental in its occurrence to have a [just] bearing on the actor’s liability or on the gravity of his
offense.
When causing a particular result is a material element of an offense for which absolute liability is imposed by
law, the element is not established unless the actual result is a probable consequence of the actor’s conduct.
g. § 2.06. COMPLICITY
A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for
which he is legally accountable, or both.
A person is legally accountable for the conduct of another person when:
a. acting with the kind of culpability that is sufficient for the commission of the offense, he causes an
innocent or irresponsible person to engage in such conduct; or
b. he is made accountable for the conduct of such other person by the Code or by the law defining the
offense; or
c. he is an accomplice of such other person in the commission of the offense.
- 60 -
3)
4)
5)
6)
7)
1)
2)
3)
4)
1)
2)
A person is an accomplice of another person in the commission of an offense if:
a. with the purpose of promoting or facilitating the commission of the offense, he
i. solicits such other person to commit it; or
ii. aids or agrees or attempts to aid such other person in planning or committing it; or having a
legal duty to prevent the commission of the offense, fails to make proper effort so to do; or
b. his conduct is expressly declared by law to establish his complicity.
When causing a particular result is an element of an offense, an accomplice in the conduct causing such result
is an accomplice in the commission of that offense, if he acts with the kind of culpability, if any, with respect to
that result that is sufficient for the commission of the offense.
A person who is legally incapable of committing a particular offense himself may be guilty thereof if it is
committed by the conduct of another person for which he is legally accountable, unless such liability is
inconsistent with the purpose of the provision establishing his incapacity.
Unless otherwise provided by the Code or by the law defining the offense, a person is not an accomplice in an
offense committed by another person if:
a. he is a victim of that offense; or
b. the offense is so defined that his conduct is inevitably incident to its commission; or
c. he terminates his complicity prior to the commission of the offense and
i. wholly deprives it of effectiveness in the commission of the offense; or
ii. gives timely warning to the law enforcement authorities or otherwise makes proper effort to
prevent the commission of the offense.
An accomplice may be convicted on proof of the commission of the offense and of his complicity therein,
though the person claimed to have committed the offense has not been prosecuted or convicted or has been
convicted of a different offense or degree of offense or has an immunity to prosecution or conviction or has
been acquitted.
h. § 2.09. DURESS
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, that a person of reasonable firmness in his situation would have been unable to resist.
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.
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.]
When the conduct of the actor would otherwise be justifiable under Section 3.02, this Section does not
preclude such defense.
i. § 3.02. JUSTIFICATION GENERALLY: CHOICE OF EVILS
Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable,
provided that:
a. the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by
the law defining the offense charged; and
b. neither the Code nor other law defining the offense provides exceptions or defenses dealing with the
specific situation involved; and
c. a legislative purpose to exclude the justification claimed does not otherwise plainly appear.
When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or
in appraising the necessity for his conduct, the justification afforded by this Section is unavailable in a
prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish
culpability.
- 61 -
1)
2)
3)
1)
2)
j. § 3.03. EXECUTION OF PUBLIC DUTY
Except as provided in Subsection (2) of this Section, conduct is justifiable when it is required or authorized by:
a. the law defining the duties or functions of a public officer or the assistance to be rendered to such
officer in the performance of his duties; or
b. the law governing the execution of legal process; or
c. the judgment or order of a competent court or tribunal; or
d. the law governing the armed services or the lawful conduct of war; or
e. any other provision of law imposing a public duty.
The other sections of this Article apply to:
a. the use of force upon or toward the person of another for any of the purposes dealt with in such
sections; and
b. the use of deadly force for any purpose, unless the use of such force is otherwise expressly authorized
by law or occurs in the lawful conduct of war.
The justification afforded by Subsection (1) of this Section applies:
a. when the actor believes his conduct to be required or authorized by the judgment or direction of a
competent court or tribunal or in the lawful execution of legal process, notwithstanding lack of
jurisdiction of the court or defect in the legal process; and
b. when the actor believes his conduct to be required or authorized to assist a public officer in the
performance of his duties, notwithstanding that the officer exceeded his legal authority.
k. § 3.04. USE OF FORCE IN SELF–PROTECTION
Use of Force Justifiable for Protection of the Person. Subject to the provisions of this Section and of Section 3.09, the
use of force upon or toward another person is justifiable when the actor believes that such force is immediately
necessary for the purpose of protecting himself against the use of unlawful force by such other person on the
present occasion.
Limitations on Justifying Necessity for Use of Force.
a. The use of force is not justifiable under this Section:
i. to resist an arrest that the actor knows is being made by a peace officer, although the arrest is
unlawful; or
ii. to resist force used by the occupier or possessor of property or by another person on his
behalf, where the actor knows that the person using the force is doing so under a claim of
right to protect the property, except that this limitation shall not apply if:
1. the actor is a public officer acting in the performance of his duties or a person
lawfully assisting him therein or a person making or assisting in a lawful arrest; or
2. the actor has been unlawfully dispossessed of the property and is making a re-entry
or recaption justified by Section 3.06; or
3. the actor believes that such force is necessary to protect himself against death or
serious bodily harm.
b. The use of deadly force is not justifiable under this Section unless the actor believes that such force is
necessary to protect himself against death, serious bodily harm, kidnapping or sexual intercourse
compelled by force or threat; nor is it justifiable if:
i. the actor, with the purpose of causing death or serious bodily injury, provoked the use of
force against himself in the same encounter; or
ii. the actor knows that he can avoid the necessity of using such force with complete safety by
retreating or by surrendering possession of a thing to a person asserting a claim of right
thereto or by complying with a demand that he abstain from any action that he has no duty
to take, except that:
1. the actor is not obliged to retreat from his dwelling or place of work, unless he was
the initial aggressor or is assailed in his place of work by another person whose
place of work the actor knows it to be; and
- 62 -
2.
3)
1)
2)
3)
1)
2)
a public officer justified in using force in the performance of his duties or a person
justified in using force in his assistance or a person justified in using force in
making an arrest or preventing an escape is not obliged to desist from efforts to
perform such duty, effect such arrest or prevent such escape because of resistance
or threatened resistance by or on behalf of the person against whom such action is
directed.
c. Except as required by paragraphs (a) and (b) of this Subsection, a person employing protective force
may estimate the necessity thereof under the circumstances as he believes them to be when the force
is used, without retreating, surrendering possession, doing any other act which he has no legal duty to
do or abstaining from any lawful action.
Use of Confinement as Protective Force. The justification afforded by this Section extends to the use of confinement
as protective force only if the actor takes all reasonable measures to terminate the confinement as soon as he
knows that he safely can, unless the person confined has been arrested on a charge of crime.
l. § 3.09. MISTAKE OF LAW AS TO UNLAWFULNESS OF FORCE
The justification afforded by Sections 3.04 to 3.07, inclusive, is unavailable when:
a. the actor’s belief in the unlawfulness of the force or conduct against which he employs protective
force or his belief in the lawfulness of an arrest which he endeavors to effect by force is erroneous;
and
b. his error is due to ignorance or mistake as to the provisions of the Code, any other provision of the
criminal law or the law governing the legality of an arrest or search.
When the actor believes that the use of force upon or toward the person of another is necessary for any of the
purposes for which such belief would establish a justification under Sections 3.03 to 3.08 but the actor is
reckless or negligent in having such belief or in acquiring or failing to acquire any knowledge or belief which is
material to the justifiability of his use of force, the justification afforded by those Sections is unavailable in a
prosecution for an offense for which recklessness or negligence, as the case may be, suffices to establish
culpability.
When the actor is justified under Sections 3.03 to 3.08 in using force upon or toward the person of another but
he recklessly or negligently injures or creates a risk of injury to innocent persons, the justification afforded by
those Sections is unavailable in a prosecution for such recklessness or negligence towards innocent persons.
m. § 5.01. CRIMINAL ATTEMPT
Definition of Attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability
otherwise required for commission of the crime, he:
a. purposely engages in conduct that would constitute the crime if the attendant circumstances were as
he believes them to be; or
b. when causing a particular result is an element of the crime, does or omits to do anything with the
purpose of causing or with the belief that it will cause such result without further conduct on his part;
or
c. purposely does or omits to do anything which, under the circumstances as he believes them to be, is
an act or omission constituting a substantial step in a course of conduct planned to culminate in his
commission of the crime.
Conduct That May Be Held Substantial Step Under Subsection (1)(c). Conduct shall not be held to constitute a
substantial step under Subsection (1)(c) of this Section unless it is strongly corroborative of the actor’s criminal
purpose. Without negativing the sufficiency of other conduct, the following, if strongly corroborative of the
actor’s criminal purpose, shall not be held insufficient as a matter of law:
a. lying in wait, searching for or following the contemplated victim of the crime;
b. enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for
its commission;
c. reconnoitering the place contemplated for the commission of the crime;
- 63 -
d.
3)
4)
1)
2)
3)
1)
2)
3)
4)
unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be
committed;
e. possession of materials to be employed in the commission of the crime, that are specially designed for
such unlawful use or which can serve no lawful purpose of the actor under the circumstances;
f. possession, collection or fabrication of materials to be employed in the commission of the crime, at or
near the place contemplated for its commission, where such possession, collection or fabrication
serves no lawful purpose of the actor under the circumstances;
g. soliciting an innocent agent to engage in conduct constituting an element of the crime.
Conduct Designed to Aid Another in Commission of a Crime. A person who engages in conduct designed to aid
another to commit a crime that would establish his complicity under Section 2.06 if the crime were committed
by such other person, is guilty of an attempt to commit the crime, although the crime is not committed or
attempted by such other person.
Renunciation of Criminal Purpose. When the actor’s conduct would otherwise constitute an attempt under
Subsection (1)(b) or (1)(c) of this Section, it is an affirmative defense that he abandoned his effort to commit
the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary
renunciation of his criminal purpose. The establishment of such defense does not, however, affect the liability
of an accomplice who did not join in such abandonment or prevention. Within the meaning of this Article,
renunciation of criminal purpose is not voluntary if it is motivated, in whole or in part, by circumstances, not
present or apparent at the inception of the actor’s course of conduct, that increase the probability of detection
or apprehension or which make more difficult the accomplishment of the criminal purpose. Renunciation is
not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous time
or to transfer the criminal effort to another but similar objective or victim.
n. § 5.02. CRIMINAL SOLICITATION
Definition of Solicitation. A person is guilty of solicitation to commit a crime if with the purpose of promoting or
facilitating its commission he commands, encourages or requests another person to engage in specific conduct
that would constitute such crime or an attempt to commit such crime or which would establish his complicity
in its commission or attempted commission.
Uncommunicated Solicitation. It is immaterial under Subsection (1) of this Section that the actor fails to
communicate with the person he solicits to commit a crime if his conduct was designed to effect such
communication.
Renunciation of Criminal Purpose. It is an affirmative defense that the actor, after soliciting another person to
commit a crime, persuaded him not to do so or otherwise prevented the commission of the crime, under
circumstances manifesting a complete and voluntary renunciation of his criminal purpose.
o. § 5.03. CRIMINAL CONSPIRACY
Definition of Conspiracy. A person is guilty of conspiracy with another person or persons to commit a crime if
with the purpose of promoting or facilitating its commission he:
a. agrees with such other person or persons that they or one or more of them will engage in conduct
that constitutes such crime or an attempt or solicitation to commit such crime; or
b. agrees to aid such other person or persons in the planning or commission of such crime or of an
attempt or solicitation to commit such crime.
Scope of Conspiratorial Relationship. If a person guilty of conspiracy, as defined by Subsection (1) of this Section,
knows that a person with whom he conspires to commit a crime has conspired with another person or persons
to commit the same crime, he is guilty of conspiring with such other person or persons, whether or not he
knows their identity, to commit such crime.
Conspiracy With Multiple Criminal Objectives. If a person conspires to commit a number of crimes, he is guilty of
only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous
conspiratorial relationship.
Joinder and Venue in Conspiracy Prosecutions.
- 64 -
a.
5)
6)
7)
1)
2)
3)
4)
1)
2)
1)
Subject to the provisions of paragraph (b) of this Subsection, two or more persons charged with
criminal conspiracy may be prosecuted jointly if:
i. they are charged with conspiring with one another; or
ii. the conspiracies alleged, whether they have the same or different parties, are so related that
they constitute different aspects of a scheme of organized criminal conduct.
b. In any joint prosecution under paragraph (a) of this Subsection:
i. no defendant shall be charged with a conspiracy in any county [parish or district] other than
one in which he entered into such conspiracy or in which an overt act pursuant to such
conspiracy was done by him or by a person with whom he conspired; and neither the liability
of any defendant nor the admissibility against him of evidence of acts or declarations of
another shall be enlarged by such joinder; and
ii. the Court shall order a severance or take a special verdict as to any defendant who so
requests, if it deems it necessary or appropriate to promote the fair determination of his guilt
or innocence, and shall take any other proper measures to protect the fairness of the trial.
Overt Act. No person may be convicted of conspiracy to commit a crime other than a felony of the first or
second degree, unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by
him or by a person with whom he conspired.
Renunciation of Criminal Purpose. It is an affirmative defense that the actor, after conspiring to commit a crime,
thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation
of his criminal purpose.
Duration of Conspiracy. For purposes of Section 1.06(4) [relating to periods of limitation for bringing
prosecutions—ed.]:
a. conspiracy is a continuing course of conduct that terminates when the crime or crimes that are its
object are committed or the agreement that they be committed is abandoned by the defendant and by
those with whom he conspired; and
b. such abandonment is presumed if neither the defendant nor anyone with whom he conspired does
any overt act in pursuance of the conspiracy during the applicable period of limitation; and
c. if an individual abandons the agreement, the conspiracy is terminated as to him only if and when he
advises those with whom he conspired of his abandonment or he informs the law enforcement
authorities of the existence of the conspiracy and of his participation therein.
p. Article 210.0 HOMICIDE DEFINITIONS
In Articles 210–213, unless a different meaning plainly is required:
‘‘human being’’ means a person who has been born and is alive;
‘‘bodily injury’’ means physical pain, illness or any impairment of physical condition;
‘‘serious bodily injury’’ means bodily injury which creates a substantial risk of death or which causes serious,
permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ;
‘‘deadly weapon’’ means any firearm or other weapon, device, instrument, material or substance, whether
animate or inanimate, which in the manner it is used or is intended to be used is known to be capable of
producing death or serious bodily injury.
q. § 210.1. CRIMINAL HOMICIDE
A person is guilty of criminal homicide if he purposely, knowingly, recklessly or negligently causes the death of
another human being.
Criminal homicide is murder, manslaughter or negligent homicide.
r. § 210.2. MURDER
Except as provided in Section 210.3(1)(b), criminal homicide constitutes murder when:
a. it is committed purposely or knowingly; or
- 65 -
Commented [AT15]: Why is there no malice in the
definition of murder here?
b.
2)
it is committed recklessly under circumstances manifesting extreme indifference to the value of
human life. Such 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.
Murder is a felony of the first degree [but a person convicted of murder may be sentenced to death, as
provided in Section 210.6].
2)
s. § 210.3. MANSLAUGHTER
Criminal homicide constitutes manslaughter when:
a. it is committed recklessly; or
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.
Manslaughter is a felony of the second degree.
1)
2)
t. § 210.4. NEGLIGENT HOMICIDE
Criminal homicide constitutes negligent homicide when it is committed negligently.
Negligent homicide is a felony of the third degree.
1)
Outline:
1. Where does the right to punish come from? The democratically elected legislature has the right to proscribe
conduct.
a. Justification: The intent in proscribing conduct is laid out most succinctly in the Packer mixed
theory:
i. Utilitarian: Prevention of present and future harm is the justifying aim of punishment.
1. This is a utilitarian deterrence/incapacitation defense. Under these principles, we
should only punish when:
a. The punishment is efficacious.
b. The punishment creates more benefits than it harms.
c. The punishment is not overly expensive.
d. The punishment is the most efficient way of getting these gains.
ii. Retributive: Desert is a limitation on punishment.
1. We recognize, under the Eighth Amendment, that just punishment is proportional
to the harm caused.
a. Threshold analysis: compare the offense and the punishment.
- 66 -
b.
2.
3.
Comparative analysis: compare to the punishments for past like
punishments.
c. Objective indicia of society: have our norms changed towards this
conduct/punishment?
d. Independent judgment: is this punishment serving our penological goals?
b. Burden of proof: Our society expresses its preference for error through the allocation of the burden
of proof.
i. Assigning the burden of proof to one side ensures the other side gets the benefit of the
doubt.
ii. Assigning the burden of proof to one side ensures that errors will tend to favor the other
side.
iii. There are two main burdens of proof:
1. Burden of production: bring prima facie evidence that the fact finder should be
considering this claim.
2. Burden of persuasion: show that the fact finder should accept or reject this claim.
a. By a preponderance of the evidence.
b. Beyond a reasonable doubt.
How is the right to punish applied? They exercise this power through statutes.
a. Statutory interpretation:
i. These statutes should have plain meanings. Where the meaning of the statute is
unambiguous, we use the plain meaning of the statute in assessing D’s conduct.
ii. Where the meaning of the statute is ambiguous, we first turn to extrinsic evidence. This is
often the legislative record.
1. Under what circumstances/for what purpose was the statute passed?
2. Were there any legislative notes that shine a light on why this statute was passed?
3. From the surrounding terms of the statute, is it clear what the statute was intended
to do?
iii. Where the meaning of the statute is still ambiguous, we apply the rule of lenity.
What are the limitations on punishment?
a. We punish people for their choices. People cannot deserve punishment unless it results from their
- 67 -