Kuo
Criminal Law Outline
PRINCIPLES OF PUNISHMENT
 Punishment requires a moral justification & Sets criminal law apart from civil law
Utilitarian Justifications: “net positive” “looking forward”
 Punishment is justified based on the benefits that will accrue from its imposition
 Goals: general deterrence, individual deterrence, incapacitation/risk management, reform and
rehabilitation
Retributivist Justifications: “just deserts” “looking backward”
 Based on the principle that people who perform crimes deserve punishment
o Lex talonis- “an eye for an eye”
 Person gets punishment they have merited by wrongdoing
 Emphasizes a societal duty to punish
 Positive vs. Negative
o Positive: punishment is necessary
o Negative: actual culpability required (falls toward utilitarianism views)
 Assaultive vs. Protective
o Assaultive: right to punish
o Protective: hate the crime, not the person
MODERN ROLE OF CRIMINAL STATUTES
Principle of Legality
 “no crime without law, no punishment without law”
 Conduct must be prohibited by law (considered criminal) BEFORE the defendant acts
 A criminal must break a law in order to be punished
 Promotes: Fair notice, fair application, legislative enactment
 Deters: Ex post facto laws, common law offenses, vague laws
 Using common law offenses
 Sometimes can negate the protections of this principle
 Because very heavily based on subjective standards like morality
 So now, we try to find a statute whenever possible
Statutory Interpretation
 Sometimes the courts must look at the statute to determine what the illegal act is
Common Law
MPC
 Uses rule of lenity
 MPC §1.02(3)
o Vague laws should skew towards the
o Allows for interpretation only
defendant
according to legislative intent
o Does not recognize the rule of
 Things considered
lenity
o Plain language
o Social context
o Purpose
o Legislative history
 Might include the common law the
legislature sought to codify
o Other statutes
o Speculation
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Criminal Law Outline
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ACTUS REUS

Physical, external element of the crime , “guilty act”
o Can be either: Voluntary act OR Omission + legal duty
Two Types of Criminal Offenses
 Result crimes: punished because of unwanted outcome
 Conduct crimes: certain behavior prohibited
Voluntary Act
 Blameworthy conduct must include a voluntary act or omission with a legal duty (see omission section)
Common Law
MPC
 All elements must be willed
 MPC §2.01(1)
movements
o Conduct must include either a voluntary act or
omission
 An act while unconscious is no act at
 MPC §2.01(2)
all, UNLESS some voluntary act made
you unconscious in the first place
o Lists things that do not count as voluntary
actions
 Time framing
 reflex or convulsion
o Can be narrow or broad as
 bodily movement during unconsciousness
determined by the court
or sleep
o Can change view on what is
 conduct during hypnosis
voluntary entirely
 bodily movement that is otherwise not a
o Argue/analyze all scenarios
product of the effort or determination of
w/ different time framing
the actor
Omissions
 Omissions are only punishable when a legal duty exists
 Omissions more ambiguous than wrongdoings (acts)
 “negative acts”
 “inactions of a prior legal duty”
Common Law
 Situations creating a legal duty (SSCCA)
1. Statute
2. Status (parents/children, husband/wife,
employer/employee)
3. Contract (implied or express)
4. Creation of Risk
5. Assumption of Care and Seclusion
 Acts related to those duties must be clearly defined
 Moral obligation ≠ legal duty
 Hesitant to create legal duties
MPC

MPC §2.01(3)
o Liability may not be based on
omission unless
 Omission is expressly
made sufficient by law
defining the offense
 A duty to perform the
omitted act is otherwise
imposed by law
Social Harm “very essence of all crime”, The result
 A social harm occurs when a loss of a crime is felt by society, not just the victim (i.e. when someone is
murdered, entire community loses its sense of security)
 Not an element in every crime, but when it is, it requires the existence of a casual link (causation)
Attendant Circumstances
 A condition which must be present in conjunction with prohibited conduct to constitute a crime
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Criminal Law Outline
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o Ex: driving “in an intoxicated condition”
o The attendant circumstance is “in an intoxicated condition.” Being intoxicated is what makes it illegal.
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Criminal Law Outline
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MENS REA
 Mental, internal element of the crime
 A guilty mind; a guilty or wrongful purpose; a criminal intent
 Mens rea ≠ motive
Two types
1. Culpability definition: guilty mind (Conley), vicious will, immorality of motive
2. Elemental definition: particular state of mind (Cunningham)
Intent
Common Law
MPC
 Recognizes a whole host of mental states
 No general or specific intent
 Common law intent
 MPC §2.02 -- Four Culpability Terms
o Purpose and knowledge in most
o **These work like nesting dolls
jurisdictions
1) Purposely: (conscious object) a person acts
o Just purpose in others
purposely with respect to a material
element of the offense when the element:
 Intent includes not only those results that are
o involves the nature of his conduct or a
the conscious object (purpose) of the actor but
result thereof, it is his conscious object
also those he knows are virtually certain
to engage in conduct of that nature or
(knowledge) to occur from his conduct
to cause such a result; and,
o Intent (aka purpose)
o involves the attendant circumstances,
 A person intends, or acts intentionally or
he is aware of the existence of such
with intent to accomplish a result or engage
circumstances or he believes or hopes
in conduct described by the statute defining
that they exist
the offense, when his conscious objective
2) Knowingly: (awareness/practically certain
or purpose is to accomplish that result or
to occur) a person acts knowingly with
engage in that conduct
respect to a material element of the
o Natural and probable consequences
offense when the element:
doctrine
o Involves the nature of his conduct or the
 A jury can assume the actor intended the
attendant circumstances, he is aware
natural and probable consequences of
that his conduct is of that nature or that
their actions
such circumstances exist, and;
o Knowledge
o Involves a result of his conduct, he is
 A person knows or acts knowingly or
aware that it is practically certain that
with knowledge of the result of his
his conduct will cause such a result
conduct when he is consciously aware
3) Recklessly: (conscious risk creation) a
that such result is
person acts recklessly with respect to a
practically/substantially certain to be
material element of an offense when he
caused by his conduct
consciously disregards a substantial and
 Willful Blindness (Ostrich head in the
justifiable risk that the material elements
sand)
exists or will result from his conduct
 Specific vs. General Intent
4)
Negligently: (should have known) a person
o Specific (P or K): mental state goes beyond
acts negligently with respect to a material
that necessary for actus reus alone, listed in
element of an offense when he should have
statute
been aware of a substantial and justifiable
 Intent to commit a future act
risk that the material element will exist or
 Special motive or purpose
will result from his conduct.
 Awareness of attendant circumstances
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Criminal Law Outline
o General (R or N): mental state applies to
§3.09 Mistake of Law (Transferred Intent)
actus reus alone
*The difference between K and R is a difference in degree, while
*the difference between R and N is a difference in kind.
Transferred Intent ~ legal fiction
 Unnecessary, works victim-to-victim, not crime-to-crime, MPC §2.03(2)(a)&(b): causal relationship
Knowledge of Attendant Circumstances
Common Law
 Mens rea must be shown as to the attendant
circumstances unless otherwise stated
 Willful blindness
o “ostrich instruction”
o Deliberately avoiding inquiring unpleasant
knowledge
Statutory Interpretation and Mens Rea
Common Law
 Courts decide what they think it should mean
based on punctuation and interpretation
 Generally, mens rea applies to all material
elements unless legislative history or sentence
structure show otherwise
 They look to…
o Legislative history
o Sentence structure
 If the mens rea term is at the beginning of
the statute, it is usually read to apply and
modify the subsequent terms of the statute
unless it states otherwise, or punctuation
provides different interpretations.
o Rule of lenity
o Absence of mens rea terms
 At minimum, general culpability definition
is adopted
MPC

MPC §2.02(7)
o Knowledge of attendant circumstances is
met if the person is aware of a high
probability of its existence, unless he
actually believes that is does not exist
MPC

MPC §2.02(4)
o Assumes mens rea requirement applies to
ALL material elements unless otherwise
stated
 Legislative history
o Requires that legislatures specifically state
they don’t want the mens rea element to
apply
 Sentence structure
o State must prove mens rea as to every
element unless legislature specifically
states otherwise (there is another clear
purpose)
 NO Rule of lenity
 MPC §2.02(3)
o Absence of mens rea terms
 If no mens rea, it must be proven as
recklessness or more
*Mens rea is an important requirements=, but not a Constitutional requirement…except sometimes*
Strict Liability Offenses
 An exception to mens rea requirements
Two Principles
1. If punishment of the wrongdoer far outweighs the regulation of the social order, mens rea is required
2. If penalty is light, no mens rea required
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Criminal Law Outline
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Criticism: can’t deter a person that is unaware of their dangerous conduct, unjust to punish someone with
unawareness, questionable if Constitutional…?
Common Law
MPC
 Traits of Strict Liability Offenses (generally)
 MPC §1.04(5)
o Not morally wrongful, just dangerous
o Strict liability for “violations”.
o Not as stigmatized
 Allowed only when the legislature is
o Small maximum punishment
clear on their intent to apply that
principle to the conduct
 Public Welfare Offenses
 Only allowed for violations
o Make up a large portion of strict liability offense
 No sentence other than a civil penalty
o Characteristics of Public Welfare Offenses
 Regulation of dangerous or deleterious
devices or products or obnoxious waste
materials
 Heighten duties of those in control of
particular industries that affect public
health, safety, and welfare.
 Depend on no mental element but consist
only of forbidden acts or omissions
Mistake of Fact
Common Law

Specific Intent
o If mistake negates specific intent element  no
liability
 General Intent (or when mistake fails to negate specific
intent)
o If mistake was reasonable no liability unless…
 Moral Wrong Doctrine
 Even if an actor’s mistake is reasonable, his
intentional commission of an immoral act
serves as the requisite blameworthiness to
justify conviction
 “What you were doing was already wrong”
 Legal Wrong Doctrine
 If a defendant’s conduct, based on the facts
he believes them to be, constitutes a crime,
he may be convicted of a more serious
offense that his conduct establishes
 “What you were doing was already illegal”
o If mistake was unreasonable  liable
see flow chart
MPC

MPC §2.04
o If the mistake negates the mens rea
element  no liability
o No difference between general and
specific intent
o MPC has something similar to moral
and legal wrong doctrines
 MPC §2.04(2)- If defendant is
mistaken as to come of the
circumstances, but would still be
guilty of some crime if the situation
were as he believed it to be, the
mistake can be used to mitigate the
charge, but NOT as a complete
defense
 Punishes at the level that the
defendant had in mind
*harsher consequences*
Kuo
Criminal Law Outline
Mistake of Law
 Ignorance or mistake of the law ≠ defense | Ignorance of law is no excuse
Common Law
MPC
 Mistake or ignorance of the law
 MPC §2.04(3)
is not a defense unless:
o Belief that conduct does not legally constitute an offense is a
o Reasonable reliance (aka
defense if:
Entrapment by Estoppel):
 The law is not known to the actor and it has not been
applies only when defendant
published or otherwise reasonably made available. (like
reasonably relies on a faulty
fair notice doctrine)
interpretation given by public
o The actor acts in reasonable reliance upon official statement
official (state job)
of law, afterward determined to be invalid/erroneous,
o Fair Notice: applies only when
contained in:
defendant has no notice of a
 Statute or other enactment;
law that requires or prohibits
 Judicial decision, opinion, judgment; or
conduct that may otherwise
 Administrative order or grant of permission, official
be considered legal.
interpretation by the public officer or public body
charged by the law with responsibility for interpretation,
administration, or enforcement of law.
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Criminal Law Outline
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CAUSATION
*Antecedent bur for which the result in question would not have occurred*
Actual Cause (Cause-in-Fact)
 Part of actus reus Link between act and result
 Typically, use “but-for” test
o A D’s conduct is a cause-in-fact of the prohibited result if the said result would not have occurred “BUT
FOR” the D’s conduct.
o Sometimes substituted for substantial factor test or other theories of causation
 Multiple Causes of Harm
o Theories of Actual Causation can be used for both the MPC and the common law
o *mental state is irrelevant here*
 Acting in Concert (accomplice liability)
 Multiple actors working together, and all are the actual cause.
 Acceleration (speeding up timeline)
 Actor deals a deadly blow, but the victim would have died anyways.
 Aggravation (cumulatively causing result)
 Defendant’s blow combined with other cause aggravates condition
 Substantial factor/”Death by two blows”
 One or more actor each deal a lethal blow
 Omission (failure to act = result)
 Failure to act with a legal duty
 Obstructed Cause (someone pre-empts your attack and actually causes the result)
 Actor’s conduct would have caused the harm but is interrupted by another’s act. (Second actor
is culpable)
 Cuts off liability
 Super-duper acceleration



Common Law
An act or omission by the
defendant must be a cause of the
result.
But-for test used most often
Other tests sometimes employed
MPC

MPC §2.03(1)
o Requires that the act or omission by the defendant be a
cause of the result.
o Conduct is the cause of a result when:
 It is an antecedent but for which the result in question
would not have occurred
Proximate Cause (“Legal” Cause)
 Seeks to determine who should be held responsible for resulting harm
 To be proximate cause, a person must also be the actual cause first
 Sometimes actual cause ≠ proximate cause
 Usually arises when an intervening force exists…
o When some but-for causal agent comes into play AFTER D’s voluntary act/omission & BEFORE the
social harm occurs
o Intervening cause is usually:
 An act of God
 An act of an independent third party
 An act/omission of the victim that assists in bringing about the outcome
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Criminal Law Outline
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o Coincidental Intervening Cause: when the D’s act merely put the victim at a certain place at a certain
time & because the victim was so located, it was ~possible~ for him to be acted upon by the
intervening cause
o Responsive Intervening Cause: the intervening act is a response to the prior actions of the defendant
when it involves a reaction to the conditions created by the defendant.
o Omissions NEVER function as a superseding intervening cause because a negative act can’t supersede
an earlier positive act.
 Theories of proximate causation (Common Law)
o Intended Consequences Doctrine
 Defendant is held responsible for an intended result if that result is achieved in the general manner
intended even if an unforeseeable cause intervened; “any intended consequence of a result is
proximate”
o Apparent Safety Doctrine
 When the defendant’s conduct has resolved and victim arrives at a position of apparent safety,
then the proximate causal chain breaks
o Voluntary Human Intervention
 Free, deliberate, and informed human intervention on part of the victim will break the casual chain.
o De Minimis
 The law will not treat a minor cause in fact as legally responsible when there is a more substantial
cause that can be held responsible
o Omissions
 May break causal chain if duty to act is legally imposed
o LaFave-Scott Test (Intervening Causes)
 In general, if the intervening cause is foreseeable then it will not relieve the actor of responsibility.
 Independent/Coincidental Cause: the defendant’s acts merely put the victim in a certain place
at a certain time and because of this location it was possible for him to be acted upon by
intervening cause → Breaks the proximate cause chain UNLESS it’s foreseeable
 Dependent/Responsive Cause: the intervening cause involves a reaction to the conditions
created by the defendant’s acts → Breaks the proximate cause chain ONLY IF abnormally
unforeseeable
Foreseeable
Unforeseeable
Coincidental
Doesn’t break chain
Breaks chain
Responsive
Doesn’t break chain
Breaks chain ONLY IF abnormally
unforeseeable

MPC & Proximate Cause:
Assuming the crime charged requires purpose w/ respect to prohibited result….
1. What was the actual result?
2. Was the actual result “w/in the purpose of the actor?
o If yes  actor’s conduct is a proximate cause
o If no  3.
3. Did the actual result involve the same kind of injury or harm as that designed?
o If yes  4.
o If no  actor’s conduct is NOT a proximate cause
4. Was the actual result too remote or accidental in its occurrence to have a just bearing on the
actor’s liability?
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Criminal Law Outline
o If yes  actor’s conduct is NOT a proximate cause
o If no  actor’s conduct is a proximate cause
Foreseeable
Unforeseeable
Independent Doesn’t break chain
Breaks chain
Dependent
Doesn’t break chain Breaks chain ONLY
IF abnormally
unforeseeable
Common Law
Legal doctrine determining
which of the actual causes
should be held accountable
for resulting harm.
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MPC

MPC §2.03(2)(b) and (3)(b)
o No real proximate cause requirement
o Only one further requirement beyond actual cause
 All actions must be within the risk of the mental state required
 Only exceptions are if the manner is so remote or
accidental that it would make it an injustice to the actor
 Softer than common law
Kuo
Criminal Law Outline
CRIMINAL HOMICIDE
Overview
 Murder
o Common law definition: The unlawful killing of another human being with malice aforethought
 Malice aforethought includes
 Intent to kill
 Intent to cause great bodily harm
 Depraved heart murder (extreme recklessness/negligence)
 Intent to commit a felony
 Manslaughter
o All other forms of homicide = manslaughter
o Homicide = manslaughter if
 Intentional and no malice in heat of passion upon adequate provocation
 Voluntary manslaughter
 Resulted from an act that was unduly dangerous to human life
 Involuntary manslaughter
 Resulted from some act that was otherwise illegal
 Felony murder
Intentional Killings
Common Law
MPC
st
1 degree murder
Murder
 Intent to kill with premeditation and deliberation
 MPC §210.2
o Premeditation
o A killing committed purposely
 The contemplation of undertaking any activity prior to
or knowingly (intentionally)
action
o No intent in MPC
o Deliberation
 The reflection and pondering and weighing of the
consequences of any action
o Views on premeditation and deliberation
 Clifford instruction
 It is not necessary that intent to kill should exist for
any particular length of time
 Shrader instruction
 Premeditation can be so in the “twinkling of an eye”
 Morrin instruction
 Separates premeditation and deliberation
o Factors in determining premeditation and deliberation (
Look at these for determining between 1st and 2nd, Forrest
factors)
 (1) want or provocation on the part of the deceased
 (2) the conduct and statements of the defendant
before and after the killing
 (3) threats and declarations of the defendant before
and during the course of the occurrence giving rise to
the death of the deceased
 (4) ill-will or previous difficulty between the parties,
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Criminal Law Outline
(5) the dealing of lethal blows after the deceased has
been rendered helpless
(6) evidence the killing was in a brutal manner.
2nd Degree Murder
 Intent to kill WITHOUT premeditation and deliberation
Voluntary Manslaughter
 Intent to kill while in a heat of passion and upon adequate
provocation
o Heat of Passion Test:
 Was defendant in a HOP?
 Would reasonable person be in a HOP?
 Was there cooling off time?
o Provocation Test:
 Was defendant provoked?
 Would reasonable person have been provoked?
 Age and sex are considered
 Was provocation legally adequate?
 Rules of Provocation:
a. There must have been adequate provocation
b. The killing must have been in the heat of passion
c. It must have been a sudden heat of passion (the killing
must have followed the provocation before there had been
a reasonable opportunity for the passion to cool)
d. There must have been a causal connection between the
provocation, the passion, and the fatal act
o Objective Standards: Reasonable Man
 Two ways defendant’s characteristics considered:
 (1) sufficiency or gravity of provocation
 (2) assessment of the level of self-control expected
of the reasonable man
*Will sometimes consider age/identity*
*Rotten Social Background defense*
Unintentional Killings: Unjustified Risk-Taking
Common Law
1st Degree FM (usually enumerated)
2nd Degree Murder
 Killing of a human being with malice aforethought
o Intent to cause great bodily harm
o OR
o Abandoned and malignant heart or depraved
heart (super-duper reckless)
 All the same term (different names)
 HIGH probability of risk.
Involuntary Manslaughter
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Manslaughter
 §210.3(1) EMED Manslaughter:
o Criminal homicide that would
otherwise constitute murder
constitutes manslaughter when
it is committed under the
influence of extreme mental or
emotional disturbance for
which there is a reasonable
explanation or excuse.
o Elements of EMED:
 Must be under influence of
EMED
 There must be reasonable
explanation or excuse for
EMED in the actor’s
situation
 Objective and subjective
standard
 Much more flexible than common
law
o Allows “cooling off” time
o No true limit on what
subjective traits can be
considered
MPC
Murder §210.2
 Criminal homicide constitutes murder when
it is committed recklessly under
circumstances manifesting extreme
indifference to the value of human life.
(super-duper reckless)
 Reckless Murder
Manslaughter §210.3
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Criminal Law Outline
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 Unlawful killing of a human being committed
 Criminal homicide constitutes reckless
recklessly or with criminal negligence.
manslaughter when it is committed
recklessly.
 Assessing Criminal Negligence (Gross neg)
Negligent Homicide §210.4
o What did defendant know?
o What didn’t the defendant know that he
 Criminal homicide constitutes negligent
reasonably should have known?
homicide when it is committed negligently.
Misdemeanor Manslaughter: death occurs during act
of a misdemeanor
Felony Murder
 One is guilty of murder is the death results from conduct during the commission or attempted commission
of a felony
o Even if the death itself is unintentional
 Requirements
o Mental state for the underlying felony
o Causal link to the death
 Purpose
o To deter people for acting dangerously while committing felonies
o WE WANT SAFE FELONS
 Limitations
o Vary by jurisdiction
 Some allow a few of these, some allow none
o Inherently Dangerous Limit
 Felony must be “inherently dangerous to human life”
 Multiple tests for determining what can be considered inherently dangerous
 Abstract Test
o Whether the felony by its very nature is inherently dangerous to life; determined by looking
at statute in entirety not in particular case, or
o If felony can be committed in a non-dangerous way then felony not inherently dangerous.
 Facts of the Case Test
o Whether the defendant’s conduct in furtherance of the felony was inherently dangerous to
human life.
 Majority rule = a combination of the two
o Merger Doctrine Limit
 When the underlying felony is assaultive in nature then that felony merges with the homicide
 Unless there is independent felonious purpose that is integral to and included in fact”
 The assaultive felony is enumerated
 Assaultive felony
 One that involves a threat of immediate violent injury.
o Res Gestae Limit (Sophophone)
 Homicide must occur in furtherance of the felony
 Factors
 Time, distance, and the causal relationship between felony and death
o Indirect Causation (3rd party killers)
 Can make people other than those who “fired the shot” liable
 Depends on jurisdiction which view is used
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Criminal Law Outline
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Three views
 Agency doctrine (majority)
o Felony-murder does not apply if causer of death was non-felon.
o Focus: the identity of the killer
 Proximate cause doctrine
o If the felon sets in motion the acts which resulted in victim’s death, then felon can be held
liable.
o Felon “got the ball rolling”
o Focus: deadly result
 New Jersey rule
o Felon is liable for death of any person other than co-felons caused by any person during
commission of felony.
o “dead felons don’t matter”
o Focus: the identity of the victim
Common Law
Felony Murder
Encompasses any killings committed in the course of a
felony as long as there is a causal link to the felonious
activity.
 In the course of a felony = anytime between attempt
and flight.
 In majority of jurisdictions, felony murder bumps up to
1st degree murder if the felony in question is one of the
enumerated in statute (anything else that qualifies is 2 nd
degree)
Anything between attempt and immediate flight (so escape
counts)
 1st degree
o Usually reserved for felonies enumerated by statutes
 2nd degree
o Most non-enumerated felonies
 Involuntary manslaughter
Felony Murder Limitations
1. Inherently Dangerous Limitations (majority of
jurisdictions apply both) a. Abstract Test – Nature of the felony must be
inherently dangerous (looks at the statute to
determine if it is inherently dangerous)
b. Facts of the Case Test – Look at Δ’s conduct in the
furtherance of the felony was inherently dangerous
2. Merger Doctrine Limitation
3. Assaultive Felony Test – if the felony is assaultive by
nature, the felony merges with the homicide (typically a
threat of immediate violence)
MPC
Enumerated Felonies
 MPC §210.2(b)
o Criminal homicide constitutes murder
when it is committed recklessly…such
recklessness can be inferred if the
actor is engaged in, an accomplice to,
attempting, or in flight after
committing/attempting robbery, rape,
threat of force, arson, burglary,
kidnapping, or felonious escape.
 Inference of super recklessness for these
felonies
 Applies when death occurs in flight
 MPC really doesn’t like felony murder
 Doesn’t recognize misdemeanor
manslaughter
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Criminal Law Outline
4. Must show both elements for assaultive felony and
elements for the homicide.
5. Res Gestae Limitation –
6. Homicide must occur in the furtherance of the felony
a. Looks at time, distance and causal relationship
between the felon and the death.
b. Time framing issue
7. Indirect Causation
8. Agency Doctrine (3rd party killers) – if the person who
causes the death is a non-felon then no felony murder
a. Look at who the killer is
9. Proximate Cause Doctrine – If the felon set in motion the
act that causes death = Felony murder
10. New Jersey Rule – Felon is liable for anyone’s death
except a co-felon
a. Dead felons don’t matter
Misdemeanor manslaughter
 Killings in the course of a misdemeanor
15
Kuo
Criminal Law Outline
16
DEFENSES
Overview
 Defense: A set of identifiable conditions or circumstances which may prevent a conviction for an offense
 5 general categories
o Failure of proof
 All elements of the offense charged cannot be proven
 Negation of a required element
o Offense modifications
 Introduce criminalizing decisions similar to those used in defining offenses
 Modify the definition of the offense
o Justifications
 Do not alter the offense definition
 Require harm caused to be less than the avoided
o Excuses
 Conduct was wrong, but conditions make the actor not responsible
o Nonexculpatory public policy defenses
 Time limits, immunities, incompetency
 Harm done is less than the social benefit
Burden of Proof
 Burden of production
o Introduction of evidence in support of a theory/claim
o Prosecution must proof elements of the crime
o Defense must prove all elements of an affirmative defense
 Unless an element is also an element of the offense
 Burden of persuasion
o Convincing the factfinder of the truth or logic of the claim presented
o State
 Elements
 Beyond a reasonable doubt
o Defendant
 By a preponderance
 >50%
o Depends on the jurisdiction who have the burden for the affirmative defense
Justification Defenses
 Conduct is justified when it would ordinarily be considered wrong but is socially acceptable given the
circumstances
 Negates the social harm of the offense

Self Defense
Common Law
Self Defense
 Elements
11. Unlawful threat of force
12. Threat is imminent/immediate
i. Immediate danger such as must be
instantly met and cannot be avoided
MPC
Self Defense
 MPC §3.04
o The use of force upon or toward another
person is justifiable when the actor believes
that such force is immediately necessary for
Kuo
Criminal Law Outline
17
13. Δ believes they are in peril
the purpose of protecting himself against the
ii. Subjective
use of unlawful force by such other person.
14. Belief = reasonable
 Based on threat being immediately necessary
iii. Objective standard that considers
 No reasonable belief requirement, but
subjective factors (relevant knowledge,
o § 3.09(2) when actor is reckless or negligent
past experience, physical traits)
in belief or reckless/negligent in obtaining the
iv. Belief can be wrong, just has to be
facts about the situation, actor cannot use
reasonable.
the self-defense justification for reckless or
15. Defensive force is necessary and
negligence offenses. (nesting doll- mental
proportionate
state has to be lower, can’t be equal or
Battered Spouse Syndrome
greater)
 Spouse can’t wait until attacker is asleep to use
o THE ACTOR’S BELIEF IN USING THE DEFENSE
deadly force
MUST BE LESS THAN THE MENTAL STATE OF
 Imperfect self-defense
THE CRIME
o Might be used to mitigate charges if
 Deadly force?
 Unproportional response
o Justifiable to protect against death, serious
 Unreasonable belief
bodily harm, kidnapping, or rape unless
 Actor in some way provoked the force
with the purpose of causing death or
serious injury; OR
 Safe retreat is an option
 Imperfect self-defense
o MPC §3.04(2)
o Might be used to mitigate charges
Aggressors
Aggressors
 Aggressors cannot use self defense unless in
 MPC §3.04(2)(b)(i)
retreat (through acts and words)
o Aggressors cannot use self-defense if the
actor, with the purpose of causing death or
 Who counts as an aggressor?
serious injury, provoked the use of force.
o One who is free from fault in the difficulty
o One who incites the fatal attack, encourages  Who is an aggressor?
the fatal quarrel, or otherwise promotes the
 One who with the purpose of causing death or
necessitous occasion for taking like
serious injury, provoked by the use of force
o One who commits an affirmative unlawful act
reasonable calculated to produce an injurious
or factual consequences
Kuo
Criminal Law Outline
18
Retreat
MPC Retreat Requirements
 Majority rule
 Retreat is required if actor can do so in safety.
o No requirement to retreat
 Exceptions:
 Minority rule
o Actor does not need to retreat if unsafe to do
o “Retreat to the wall”
so.
 Forbids use of defensive force that may
o Actor does not need to retreat if in his own
kill or seriously injure when an avenue of
home UNLESS he was the first aggressor.
safe retreat is available.
o Actor does not need to retreat if at work
o Exceptions:
UNLESS the initial aggressor is a coworker.
 Castle doctrine
 One who, through no fault of his own,
is attacked in his own home is under
no duty to retreat.
 Stand Your Ground Doctrine
 One may stand his ground and use
deadly force whenever it seems
reasonably necessary to save himself.


Defense of others
Common Law
Defense of Others
 Defendant is justified in use of force
when defendant acted to protect a
third party from unlawful use of force
 Two views
o Reasonable Belief (majority rule)
 It is enough for the actor to act
in defense of others when he
reasonably believes the ‘other’
would be justified in using self
defense
o Alter Ego Rule (minority rule)
 The right to defend another is
no greater than the actual right
of the third party to defend
himself.
 Traditionally, limited to 3rd parties with
special relationships, but not anymore
Defense of Property and Habitation
Common Law
Defense of Property
 Deadly force is not permissible
MPC
Defense of Others
 MPC §3.05(1)
o Use of force is justified when
 The actor would be justified under 3.04 in using
such force to protect himself against the injury he
believes to be threatened to a third person; AND
 Under the circumstances as the actor believes
them to be, the third person would be justified in
using such force; AND
 The actor believes that his intervention is
necessary for the protection the third-person.
 Limited by §3.05(2)
o When actor is reckless or negligent in belief or
reckless/negligent in obtaining the facts about the
situation, actor cannot use the defense of other
justification for reckless or negligence offenses.
(nesting doll- mental state has to be lower, can’t be
equal)
o THE ACTOR’S BELIEF IN USING THE DEFENSE MUST BE
LESS THAN THE MENTAL STATE OF THE CRIME
MPC
Defense of Property
 May be construed to allow for deadly force.
Kuo
Criminal Law Outline
19
o Basically only for felonious theft
Defense of Habitation
Defense of Habitation
 Three views
 MPC §3.06(3)(d)
o Curtis/Eatman (original CL rule)
o Use of deadly force is not justified unless the actor
 Deadly force permitted if
believes that:
defendant reasonably believes
 The person against whom force is used is
intruder intends to unlawfully and
attempting to unlawfully disposes him of his
imminently enter and deadly force
dwelling; OR
is necessary to prevent intrusion
 The person against whom force is used is
o Bailey/Falco
attempting to commit arson, burglary, robbery,
 Same as Eatman but must also
or other felonious theft/property destruction
reasonably believe intruder
AND EITHER (1) has employed or threatened
intends to commit felony inside.
deadly force; OR (2) the use of force other than
o Boyett (current most rule)
deadly force would expose the actor or another
 Same as Eatman but must also
to substantial danger of serious bodily harm.
reasonably believe intruder
o More narrow than Curtis, broader than Boyett
intends to commit a forcible and
 Subject to MPC §3.09
atrocious felony inside.
o THE ACTOR’S BELIEF IN USING THE DEFENSE MUST
BE LESS THAN THE MENTAL STATE OF THE CRIME

Necessity
o Courts tend to limit the use of this defense, and some jurisdictions fail to recognize it at all
Common Law
MPC
Necessity
Choice of Evils
 Elements
 MPC §3.02(1)
o Act must be done to prevent a
o Conduct that the actor reasonably believes to be
significant evil
necessary to avoid a harm or evil to himself or
o There must be no lawful adequate
another is justifiable provided that:
alternative
 Harm avoided is greater than harm caused; AND
o Harm caused must not be greater
 No statutory exceptions applicable; AND
than the harm avoided
 No legislative purpose to exclude justification
o Imminent harm/dire need/emergency
appears
o Reasonable expectation that actions
o Limited by MPC §3.02(2)
will abate danger
 Cannot use the defense if actor’s recklessness or
 Subjective
negligence brought about the situation and the
offense committed requires only recklessness or
 Traditionally, applies to natural threats
negligence.
o Not always true today
 Deadly force?
 Some states include a fault provision
o No written limitation
 Deadly force?
o NOPE
Excuse Defenses
 Conduct was wrongful, but the circumstances were such that the defendant should not be blamed for the
conduct
 Negates the blameworthiness of the actor for causing the harm
Kuo
 Duress

Criminal Law Outline
20
Common Law
MPC
Duress
 Elements
o An immediate threat of death or serious
bodily harm
 Does not have to be to the defendant
himself
 Threat must be unlawful (in some states)
o Well-grounded fear that the threat will be
carried out
o No reasonable opportunity to escape
 Fault provision
o Most states also require the defendant not
be at fault for exposing himself to the threat
 Traditionally, applies to human threats
 Deadly force?
o Duress is never an excuse for homicide.
o But can
 Knock out felony murder
 Disprove premeditation and deliberation
Duress
 MPC §2.09
o Actor can use the defense of duress when he
was coerced to engage in unlawful conduct
by the use or threat of unlawful human force
against himself or another, which a person of
reasonable firmness in his situation would
have been unable to resist.
 Limited by MPC §2.09(2)
o The defense is not available if:
 Actor recklessly put himself in a situation
where it was probable that he would be
subjected to duress; OR
 Actor negligently put himself in such
situation AND the charged offense
requires only negligence.
 Deadly force?
o No written limitation
 Limited to human threats
Intoxication
Common Law
Voluntary Intoxication
 May be used as a defense to a specific intent offense
when the intoxication negates an essential element.
o By acting as a failure of proof claim
 Not relevant to general intent crimes
 Not a defense to homicide, but can be used to knock out
premeditation and deliberation to mitigate charge.
 Some jurisdictions have completely eliminated the
defense.
 Some jurisdictions see this as a failure of proof claim
Involuntary Intoxication
 Defense can be raised if defendant was
o Unable to form the requisite mens rea; OR
o He is rendered “temporarily insane.”
 Types
o Coerced intoxication
o Pathological intoxication
 Mere susceptible to the intoxicate than was
known
o Intoxication by innocent mistake
o Unexpected intoxication by a medically prescribed
drug
MPC
Voluntary Intoxication
 MPC §2.08(1)
o Voluntary intoxication is not a defense
UNLESS it negates an element of the
offense.
 Limited by MPC §2.08(2)
o Cannot raise defense to offense that
requires reckless or negligent
culpability
Involuntary Intoxication
 MPC §2.08(4)
o Intoxication that is not self-induced or
is pathological is a defense if by
reason of such intoxication the actor
at the time of his conduct lack
substantial capacity either to
appreciate its
criminality/wrongfulness or to
conform his conduct to the
requirements of law.
Kuo

Criminal Law Outline
21
Insanity
Common Law
Insanity
 M’Naghten Rule (Majority Rule)
o It must be clearly proved that, at the time of committing the
act, the party accused was laboring under such a defect of
reason, from disease of the mind, so that he could not know the
nature and quality of the act he was doing or if, he did know it,
that he did not know what he was doing was wrong.
 Disease of mind is limited to certain acknowledged
conditions that must be proved by an expert witness
 Purely a cognitive capacity test
 Right v. wrong
 Irresistible Impulse (M’Naghten +)
o Under delusion from disease of the mind, defendant loses free
agency and is unable to control his actions or to conform his
conduct to the law.
o Adds volitional component to M’Naghten
 “duress by the disease”
 Durham/Product Test
o Defendant is not criminally responsible if his unlawful act was
the product of mental disease or mental defect.
o Uses “but for” test.
o Became a battle of medical experts taking out of jury’s control.
 Guilty but mentally insane
o Defendant was sane at the time of the crime, but mentally ill
now
 Generally sent to mental institution
MPC
Insanity
 MPC §4.01/ ALI Test
o Defendant is relieved of
responsibility when as a
result of mental
disease/defect, the
defendant lacked
substantial capacity to
appreciate the
criminality/wrongfulness
of his conduct OR
defendant lacked
substantial capacity to
conform his conduct to the
requirements of law
o Softened version of
M’Naghten – “appreciate”
instead of “know”
 Based on lack of “substantial
capacity”
Kuo
Criminal Law Outline
22
INCOHATE OFFENSES
Attempts
 Two types
o Incomplete: Stopping before committing the crime
o Complete: Failure of actual offense
Common Law
 Mens Rea
o Defendant’s conduct must be intentional AND the
conduct must have been completed with intent to
cause a criminal result.
 Jurisdictional split: Does intent include
knowledge?
o Follows specific intent model
 Actus Reus
o Conduct that tends towards the completion of a
crime
o Generally focuses on what’s left to do
o Defined by the tests below
 Both elements must be shown beyond a reasonable
doubt.
 Merger doctrine
o An attempt merges with the actual commission of
an offense
 Punished at a lower level than a completed offense
 Actus Reus Tests
o Physical Proximity
 The overt act required for an attempt must be
proximate to the completed crime or directly
tending toward the completion of the crime.
 Focus: time & physical proximity to completed
offense
o Dangerous Proximity
 The greater the gravity and probability of the
offense, the earlier attempt is defined.
 Focus: comparing proximity to offense with
gravity of offense
o Indispensable Element
 Emphasizes completion of any indispensable
aspect of a criminal endeavor over which the
actor has not yet acquired control.
o Probable Desistance
 Defendant has reached a point at which a
typical person with the defendant’s intent
would voluntarily change his mind stop the
attempt.
 Focus: how much remains to be done




MPC
Mens Rea- MPC §5.01(1)
o A person is guilty of an attempt to
commit a crime when
 He purposely engages in conduct that
would constitute a crime if the
attendant circumstances are as he
believes; OR when he acts with the
belief that it will cause a particular
result that is an element of the crime
(Completed Attempt); OR
 He 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 (Incomplete
Attempt).
Actus Reus- MPC §5.01(2)
o Generally focuses on what has already
been done
o Substantial step test
 Conduct is a substantial step when it
is strongly corroborative of the actor’s
criminal purpose.
 Focus: what has already been done
Merger doctrine
o An attempt merges with the actual
commission of an offense
Punished at the same level as a completed
offense.
o Unless it is a first degree offense
Kuo
Criminal Law Outline
o Unequivocally (res ipsa loquitur)
 “silent movie”
 As long as aspect of equivocality (uncertainty)
remains, the intent of the defendant cannot
be stated with certainty.
 D must have no non-criminal purpose for
actions.
o Last Act
 All required acts are complete but result is
not.
o Abnormal Step
 Defendant has taken a step that cannot
otherwise be explained.
 CL version of substantial step/MPC test
Special Defenses
 Impossibility
o Factual Impossibility
 The conduct is not criminal but the
circumstances as the actor believes them to
be would result in commission of crime.
 Not a defense
o Hybrid-legal impossibility
 Mistake of fact regarding the legal status of an
attendant circumstance.
 Accepted in a minority of jurisdictions.
o Pure Legal Impossibility
 The law does not prohibit the conduct nor the
intended result; applies when actor engaged
in legal conduct he believed was criminal.
 Allowed in all jurisdictions.
 Abandonment (renunciation)
o Affirmative defense where the defendant
voluntarily and completely renounces his criminal
purpose.
o The renunciation must be a genuine change of
heart.
o Merely stopping because of unexpected
resistance or some other circumstance that
increases the likelihood of being caught is not
abandonment.
Solicitation
 An attempt to conspire
Common Law
23
Special Defenses
 Impossibility
o §5.01(1)(b) knocks-out factual
impossibility
 “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”
o § 5.01(1)(a) knocks-out hybrid-legal
impossibility
 “purposely engages in conduct that
would constitute the crime if the
attendant circumstances were as he
believes them to be”
o § 5.01 allows pure legal impossibility
 The act is only criminal if conduct is
tended towards an actual offense
 Abandonment (renunciation)
o MPC §5.01(4)
o Affirmative defense if
 Actor abandons efforts to commit the
offense
 His conduct manifests a complete and
voluntary renunciation of criminal
purpose.
MPC
Kuo
Criminal Law Outline
24
 Applies to felonies and serious
 MPC §5.02(1)
misdemeanors.
o Applies to all crimes (misdemeanors and felonies)
o A person is guilty of solicitation to commit a crime
 Mens Rea
if, with the purpose of promoting or facilitating its
o Specific intent
commission, he commands, encourages, or
o Intent to communicate with intent that
requests another person to commit a crime,
the other person consummate the
attempt a crime, or to be an accomplice.
solicited crime.
 Actus Reus
Elements:
o Inviting, requiring, commanding, hiring,
1.
Δ acts w/ purpose of promoting the target crime
or encouraging another to commit a
2. Δ commands, encourages or facilities its commission.
particular crime. (Doesn’t apply for an
(includes accomplice)
invitation to be an accomplice)
o Act is accomplished as soon as Δ asks or
 MPC §5.05(3)-- Merger doctrine
communicates
o Solicitation merges with attempt, completed
 Merger doctrine
crime, and conspiracy
o Solicitation merges with attempt,
 Defendant is guilty of solicitation even if the
completed crime, and conspiracy
communication does not reach the other person.
(Successful solicitation is conspiracy)
o § 5.02(2): it is immaterial if solicitation is
 Defendant is not guilty of solicitation unless
uncommunicated as long as actor’s conduct was
the request is actually communicated
designed to effectuate a communication.
 Renunciation
 Renunciation
o (Unclear)Must be voluntary and
o MPC §5.02
complete and convince/prevent other
o Must be voluntary and complete and
party to renunciate as well
convince/prevent other party to renunciate as well

Does not apply where Δ tricks an innocent into committing a crime. (Attempt)
o Innocent person is a tool in Δ’s attempt
Conspiracy
 An unlawful attempt between two persons who enter into an agreement with specific intent to commit an
unlawful act or lawful act by unlawful means
Common Law
MPC
 Mens Rea
 Mens Rea
o Follows specific intent model
o MPC §5.03(1)
o Intent to agree and intent to accomplish the unlawful
 A person is guilty of conspiracy
objective
if with the purpose of
o Cannot conspire to commit a crime with reckless or
promoting or facilitating its
negligent mens rea
commission
o Corrupt motive doctrine
o Mere knowledge not enough
 Beyond the usual mens rea requirements; a party to
o Specific Intent – purpose to enter
an alleged conspiracy is not guilty unless he had a
conspiracy and purpose for the
corrupt or wrongful motive.
result to occur
o Special Rule for Suppliers
 Actus Reus
 Intent may be established if supplier has knowledge
o MPC §5.03(1)
and is shown by: (Stake in the venture)
Kuo
Criminal Law Outline








Direct evidence of intent
Inference of intent to participate
o Special interest in the activity
(Disproportionate number of services or
goods provided compared to other
customers)
o Grossly inflated prices)
o Aggravated nature of the crime (no legitimate
use for the product/service)
Actus Reus
o Agreement to commit an unlawful act or series of such
acts.
o Some states require an overt act in furtherance of the
conspiracy.
o Must be some evidence of agreement before the fact.
Pinkerton Doctrine: If a conspiracy is entered into, the Δ’s
are liable for other conspirators actions, even if the
agreement isn’t specific to that act. (or if Δ even has
knowledge of it occurring)
Plurality Requirement
o Bilateral Theory
 Two or more persons must agree together to the
commission of an offense.
 Cannot conspire w/ undercover police because they
are not culpable and it takes 2 to conspire.
 Traditional CL concept; some jurisdictions are
moving toward MPC theory
Merger doctrine
o Common Law conspiracy does not merge with the
completed offense or attempt.
o Successful solicitation merges with conspiracy
Renunciation
o Must be voluntary and complete and in some
jurisdictions, thwart the success of the conspiracy
o Minority do not allow this as a defense
Withdraw
o If conspirator withdraws, he is not liable for future
crimes committed in furtherance of the conspiracy
 Still liable for previously successful offenses





25
 He agrees to commit, attempt,
solicit another, or aid in
planning the commission,
attempt, or solicitation of
target offense.
o Overt Acts §5.03(5)
 Overt act is not required for
1st or 2nd degree felonies;
however, conspiracy to
commit a lower level felony
must be accompanied with an
overt act.
Knowledge is not enough; must have
purpose to promote or facilitate.
Plurality Requirement
o Unilateral Theory
 Only one of the alleged
conspirators must intend to
agree to the commission of an
offense.
 MPC §5.03 embraces
unilateral theory by requiring
“a person” to agree.
Merger Doctrine
o MPC §5.05(3) + 1.07(1)(b)
 Conspiracy merges with the
completed offense UNLESS the
conspiracy involves the
commission of additional
offenses not yet committed or
attempted.
 Ongoing conspiracy
Rejects Pinkerton
Renunciation
o MPC §5.03(6)
o Must be voluntary and complete
or inform law enforcement of
conspiratorial plan and thwart the
success of the conspiracy
Kuo
Criminal Law Outline
26
ACCOMPLICE LIABILITY
Introduction
 Accomplice liability is a tool, and not a separate crime, to broaden liability for an offense.
 Derivative Liability
o Accessory is liable for his own conduct, but his liability is dependent on the principal violating the law.
 Accomplice Liability Terminology
o Principal: Actual perpetrator of the offense.
 First degree (“principal”)
 Actually commits a crime either by his own actions, an inanimate agency, or an innocent
instrumentality.
 Second degree (“abettor”)
 Guilty of felony by aiding, counseling, encouraging, or commanding AND is present at
commission either actually or constructively.
o Accessory
 helped in commission but did not actually commit offense
 Before the fact (“inciters”)
 Guilty of felony by aiding, counseling, encouraging, or commanding with the intent to further
the offense.
 After the fact (“hiders”)
 With knowledge of the other’s guilt, intentionally renders assistance to a felon in effort to
hinder his detection, arrest, trial, or punishment.
o Accessories cannot be convicted of higher crime than the principal; principal in second degree can be
convicted of higher crime than principal in the first degree.
Common Law

Mens Rea
o Specific intent
o Intent to render the conduct that in fact assists the
primary party
o Intent to promote or facilitate the commission of
the offense.
o Knowledge of criminal purpose is enough if the
actor has intent to further the criminal enterprise
o If accomplice encourages, Δ must be aware of the
encouragement.
 Actus Reus
o Actual assistance, encouragement, of failure to
perform a legal duty to prevent the offense.
o Conduct must actually aid the primary party but
can actually aid without the primary party’s
knowledge.
o Presence alone is not enough unless it serves a
purpose to encourage or assist or “stimulates
others to render assistance to the criminal act.”
MPC

MPC §2.06(3)
o A person is an accomplice of another
person in the commission of an offense
if, with the purpose of promoting or
facilitating the commission of the
offense, he solicits, aids, agrees to aid,
attempts to aid, or fails to act when he
has a legal duty to prevent the
commission of the offense OR his
conduct is expressly declared by law to
establish complicity.
o Includes attempt to aid and actual aid.
o Knowledge is not enough; must have
“purpose of promoting or facilitating.”
Kuo




Criminal Law Outline
27
o Causation is not required; do not have to be a
“but-for” causer because accomplice liability is a
tool not a crime.
Unintended Results
 Unintended Results
o Riley (Majority Rule)
o MPC § 2.06(4)
 Conviction of an accomplice in the commission
 Defendant is culpable for unintended
of a crime of recklessness or negligence is
results if the defendant is an
permitted as long as the secondary party has
accomplice to the conduct causing
intent to promote/facilitate the conduct of
the result and satisfies the mens rea
another and the mental state required for the
for the offense.
offense.
o Echols (Minority Rule)
 “intent to promote or facilitate” requires intent
to commit the substantive offense. One cannot
intend to be unintentional.
Unplanned crimes by your partner
 Unplanned crimes by your partner
o Defendant can be labile if natural and probable
o Generally, defendant not culpable
consequences doctrine applies
 Did primary party commit target offense?
 Was secondary party an accomplice?
 Was there a crime beyond that target offense?
 Was the consequence foreseeable?
o Some states reject this theory
Abandonment
 Abandonment
o Abandonment is a defense if the defendant
o MPC § 2.06(6)(c)
communicated renunciation to the other
 A person is not an accomplice in an
participants and neutralizes assistance.
offense committed by another
person if he terminates his complicity
Allows defendant to avoid liability for subsequent
prior to the commission of the
criminal acts of the other participants.
offense AND
 wholly deprives it of effectiveness
in the commission of the offense;
AND
 gives timely warning to law
enforcement OR otherwise
makes proper effort to prevent
the commission of the offense.
OTHER CRIMES
Assault
 No such thing as attempted assault
Common Law
MPC
 Assault
 Simple Assault §211.1(1)
o Majority view
o Includes:
 Intentional creation of
 Attempts to cause or purposely, knowingly, or recklessly
apprehension in another
causing bodily injury;
Kuo
of imminent bodily harm
with apparent ability to
effectuate.
o Minority view as an
attempted battery with
present ability to perpetrate.
Criminal Law Outline
28
 Negligently causing bodily injury by use of deadly weapon;
 Attempts by physical menace to put another in fear of
imminent serious bodily injury.
 Aggravated Assault §211.1(2)
o Includes :
 Attempts to cause serious bodily injury or causing such
injury purposely, knowingly, or recklessly manifesting
extreme indifference to human life;
 Attempts to cause or purposely, knowingly, or recklessly
causing bodily injury to another with a deadly weapon.
Battery

Common Law
Battery
o Unlawful use of force against another person resulting in either
bodily injury or offensive touching.
o Does not need to be intentional; negligence is enough in most
jurisdictions

MPC
Combined with assault.