INTRODUCTION: The What, When, Why, and How of Criminal Law ....................................... 1
WHY DO WE PUNISH: JUSTIFICATIONs For PUNISHMENT ............................................... 5
Theories of Punishment .............................................................................................................. 5
Retribution .............................................................................................................................. 5
Utilitarian (Deterrence and Rehab) ......................................................................................... 5
Test Cases ................................................................................................................................... 6
The Queen v. Dudley and Stephens ........................................................................................ 6
U.S. v. Bergman ...................................................................................................................... 7
WHEN DO WE PUNISH: GENERAL REQUIREMENTS FOR CRIMINAL LIABILITY ........ 8
Framework for Punishment......................................................................................................... 8
Actus Reus .................................................................................................................................. 9
The General Requirement ....................................................................................................... 9
Voluntary Act Rule ............................................................................................................... 11
Voluntary Impairments/Risk of Impairments ....................................................................... 11
Involuntary acts ..................................................................................................................... 12
Omissions to Act ................................................................................................................... 13
Mens Rea .................................................................................................................................. 17
The General Requirement ..................................................................................................... 17
Strict Liability Offenses ........................................................................................................ 23
Mistake or Ignorance of Fact and Law ................................................................................. 26
Causation................................................................................................................................... 30
Attempted Liability and Causation ....................................................................................... 36
Accomplice Liability ............................................................................................................ 41
WHAT DO WE PUNISH I: CRIMES AGAINST THE PERSON .............................................. 44
Homicide ................................................................................................................................... 44
Assault and Battery ................................................................................................................... 56
WHAT DO WE PUNISH II: CRIMES AGAINST PROPERTY ................................................ 60
Crimes that Harm Victim’s Property ........................................................................................ 61
Arson ..................................................................................................................................... 61
Criminal Mischief ................................................................................................................. 62
Criminal Trespass ................................................................................................................. 63
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Deprivation Crimes ................................................................................................................... 65
Larceny ................................................................................................................................. 65
Burglary ................................................................................................................................ 67
Robbery ................................................................................................................................. 69
False Pretenses ...................................................................................................................... 71
Embezzlement ....................................................................................................................... 71
Possession Offenses .............................................................................................................. 72
HOW TO ESCAPE PUNISHMENT: EXCULPATION DOCTRINES ...................................... 75
Principles of Justification: Defense and Necessity ................................................................... 75
Affirmative Defenses: JUSTIFICATION DOCTRINE ........................................................ 76
Principles of Excuse.................................................................................................................. 81
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INTRODUCTION: THE WHAT, WHEN, WHY, AND HOW OF
CRIMINAL LAW
What is criminal law?
○ Enforces our criminal laws
○ Punishes persons convicted of criminal conduct by taking their life, liberty,
property etc.
Why do we punish? Theories of Punishment
○ (1) Retribution; (2) Deterrence (incapacitation); (3) Rehabilitation
■ Retribution example = Queen v Dudley & Stephens (seamen cannibals)
■ Deterrence/Rehab example = Bergman (respected old rabbi fraud)
When do we punish?
○ Prima Facie Case → Voluntary act or omission done with the right state of mind
which caused harm to V
■ “Actus Reus” → voluntary act (MPC 2.01)
● Must voluntarily reach out of bubble or fail to reach out bubble of
duty
○ Excludes bad thoughts, involuntary acts (unless
voluntary impaired violation)
● Omissions
○ Usually not liable for inaction (Beardsley - woman took
pills and croaked)
○ Exceptions/Duties:
■ (1) Relationships (spouse, child, etc.)
● Only legal relationships - close but non-legal
relationships do not count
■ (2) Statutes (certain officials are required to help have a duty to act)
● Any person licensed (doctors, etc.)
● Any person who is not licensed but currently
on duty (police officers, etc.)
■ (3) Contract
● Has to be related to present danger (security
guard has a duty to help protect the
establishment → does not have a duty to
protect owners home)
■ (4) Creates peril (even if involuntarily)
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■ (5) Voluntary assumption of care in such a way that
restricts access to care
● Once you start you cannot stop b/c people
who otherwise would have helped won’t
(b/c you started)
■ “Mens Rea” → mental state
● State of mind needed to commit the crime → negligent?
Intentional?
● General Intent → act w/ recklessness; harm is foreseeable
○ Easier to prove, lighter punishment (Regina v. Cunningman
- gas meter)
○ Intent to perform the act that led to the harm, but not
necessarily the harm itself
● Specific Intent → act w/ intent to do what happened
○ Harder to prove, heavier punishment
○ Intent to cause harm that occurred
■ Causation → harm to V
■ Violation of statute
○ If 1+ of the elements are missing → attempt or aiding/abetting are still potential
options
➢ What do we punish?
○ Crimes against persons → someone else’s body
■ Homicide
■ Sex Offenses
■ Assault and Battery
■ Kidnapping, False Imprisonment, etc.
○ Crimes against property → someone else’s property
■ Destroying someone’s property
● Arson, defaming title
■ Invading someone’s property
● Trespass, theft, embezzlement, extortion, blackmail
➢ How do we get out of punishment?
○ Affirmative Defenses
■ Justification (self-defense, necessity)
● D did something wrong, but it was in self-defense or in defense of
others
■ Excuse (duress, insanity)
● D did something wrong but is excused because it was done under
duress by a third-party or was done by internal pressure of
diminished capacity or even insanity
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➢ Place of Criminal Law in the Legal System
○ Working with state actors and private citizens at the same time
■ Falls in the middle of public and private issues → Classic private law
(marriage/contract), private law of torts, legally recognized associations,
classic public law (legislation and regulation, constitutional law),
relationships between the government and people
○ Criminal law is there as an additional set of legal constraints and consequences
upon actors in different relationship
➢ Relationship Between Torts and Criminal Law
○ Criminal Law → concern/focus is on the safety of society
■ Society is being made whole (which is a good in itself)
● State actor on one side, private party on the other
● States do the prosecution, not private parties
○ On the other side of the “v” there is almost always a single
defendant
■ Things that are inherently “bad” (murder, rape, etc.) vs. stuff “on the
edge” (recreational drug use, polygamy, infidelity, pornography)
● Edge will always be negotiable - state decides whether something
is a crime based on certain criteria → an offense is labeled a
“crime” because society chooses to condemn that action as being
wrong
○ Criminal code sets out the basic standards (rules and
regulations) that we want society to abide by. Violating
these standards not only harms V but harms all individuals
in society because the rules/regulations have been violated
■ Crime tears up the social fabric and the criminal
code attempts to switch that fabric up and make
society whole again through criminal prosecution
■ V does not receive compensation
■ No impact on private (civil) suits V could bring against D; focus is on D
getting prosecuted
○ Tort Law → focus on making the person/individual whole (unless a tort/offense
is defined as a crime, it cannot be prosecuted)
■ Concerned about providing compensation to the victim and trying to make
him/her “whole” through damages
■ Joint and several liability → can sue multiple people for the same harm
that we want to fix
○ Double Jeopardy?
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■ An offense can be both a crime and a tort; criminal prosecution and tort
suits can go on simultaneously and one does not depend upon the other.
Separate standards of prosecution, separate cases need to be brought
● Torts suit - person being made whole
■ Public and private suits are 2 separate things → this NOT double jeopardy
■ When we prosecute, there is a separate case, separate evidence, and
separate procedura than the tort case
● The 2 have no bearing on each other & each case stands on its
own
➢ Constitutional Considerations and Limitations
○ Nulia poena sine lege → no punishment without a statute/legislation
■ Not just a law, but a legislative law
● Requires a hard right or wrong, no punishment without the
legislature
○ We ALWAYS first ask what the statute says
■ The legislature must do the work of putting out a statute and saying that
the act is criminal; Fair warning: don’t want to be punished for something
you don’t know about (totalitarian)
● Why do we have this?
○ Need to warn people about what actions will be punished give them notice of what they can/cannot do and what they
will be punished for (notice to the community)
○ Deterrence
■ How does this help us constrain/restrain government?
● Without these statutes, the government would have a free for all
and would be able to exercise their prejudices when deciding who
to punish/how to punish
○ Gives the state too much power - makes it way too easy for
the state to go after its citizens
○ No ex post facto laws → You can't retroactively create a law. Statutes must be
applied prospectively, not retrospectively
■ Retroactive effect - if something is made a crime after the offense has
already been committed, the person cannot be prosecuted for that crime
■ Must apply to all statutes prospectively – no retrospective legislation
○ No double jeopardy - can’t be prosecuted twice for the same offense
■ Suing in tort w/ criminal prosecution - is this piling on? Is this double
jeopardy? Requiring D to pay for her crimes twice?
● Prosecuting two separate offenses - like theft and battery for
punching someone and stealing their phone - is OK, as are two
separate suits in tort and criminal law
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○ Criminal Procedural Protections
■ Right to jury, counsel, appeal, etc.
■ Cruel and unusual punishment
○ Constitutional Liberties: Due Process of Law
■ What is an “unalienable” right to life, liberty, and property?
● Rights that cannot be taken away from you unless you've
committed a (legal) wrong/violated the social contract society
operates under
■ Due Process requirement → puts limits on what states can do
WHY DO WE PUNISH: JUSTIFICATIONS FOR PUNISHMENT
Theories of Punishment
RETRIBUTION

Focuses on looking at what someone did. Idea that a person must pay for their crimes
(retribution is moral)
o Must have MORAL reasoning for punishing offenders
● Benefits → re-stitching of society; gives society confidence in the legal system; helps
prevent independent revenge (i.e., vigilantes)
○ Backwards looking → criminals deserve to be punished because they broke the
law
○ Moral desert is a sufficient and necessary reason to punish a wrongdoer; making
D pay for what they did
● Retribution example → Queen v Dudley & Stephens (seamen cannibals)
UTILITARIAN (DETERRENCE AND REHAB)

Forward looking; justifies punishment on the basis of future consequences/the good of
society (greatest good for greatest # - Bentham)
● Deterrence: Focuses on what someone else might do. Idea is to try and stop others from
taking that action/committing that crime in the future → if I see a criminal punished for
committing a crime, I am less likely to commit that crime
○ General: sending a message to the public; instrumentalizing the criminal
○ Specific/Individual: inflicting sufficient punishment on the individual who
committed the crime (so that they will not do it again)
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●
●
●
●
■ Prior criminal record may be relevant here - i.e., a repeat offender will get
a lengthier sentence/harsher punishment than a first-time offender
■ Incapacitation
● Form of special deterrence; deterring someone by putting them
away for good so that they cannot participate in society
Rehabilitation: Focuses on “fixing” the offender. The goal is to figure out why the
person committed the crime and try to fix them so that they can become a law-abiding
citizen/member of society
○ Subjective - focused on a particular offender in a particular context. Emphasis
on/confidence in social science
Deterrence and Rehabilitation are utilitarian justifications for punishment
○ forward-looking → prioritizing future benefits that will result from punishing
criminal offenders
■ Deterrence/Rehab example → Bergman (respected old rabbi fraud)
Case: The Queen v. Dudley – shitty/life or death circumstances led to murder and
cannibalism
○ Retribution: They had already suffered enough for their crimes
○ Deterrence: Don’t need send a message to the public b/c this is a unique situation
and Ds will not do this again
○ Rehabilitation: Nothing to rehabilitate b/c (again) there’s probably no shot
they’ll be repeat offenders
Case: U.S. v. Bergman – old dude, well-respected rabbi; embezzlement case
○ Retribution: He’d already suffered enough because of the social consequences of
his actions
○ Deterrence: Public would be better served through community service - not a
repeat offender, no need to deter him
○ Rehabilitation: No chance at being a repeat offender
Test Cases
THE QUEEN V. DUDLEY AND STEPHENS


Prosecution’s Case?
o Purpose of punishment  to bring charges and punish
 Plain retribution
 Fear that there could be a slippery slope for future societal actions
o General deterrence
 We have the law so we might as well enforce it
o Ship captain’s duty not to kill trumps custom; will stop future ship captains from
doing the same thing in similar circumstances
Defense’s Arguments?
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o Acting out of extreme necessity
o Horrible emotional, physical, spiritual pain
o General deterrence is for the legislatures, not the courts
Retribution/General Deterrence vs. Rehabilitation/Special Deterrence
o For prosecution  General deterrence & retribution
 Pre-meditated murder is not okay and other people should not do it
 D committed wrongful act. Murder statute says ‘Thou shall not kill”
 Command punishment
o For defense  Rehabilitation & special deterrence
 D have suffered enough. Retribution has been done
 No need for deterrence because they are not going back soon
 In dire situations, there needs to be equitable solutions
 Command acquittal
Objective Crime vs. Subjective Criminal
o For prosecution  objective
o For defense  subjective
Individual Ends vs. Social Ends
o “Doctrine of Necessity”
 The actions taken were necessary to survive
 It comes down to social and individual values
 The other people had family
 1:3 calculus (3 lives on which many other lives depend vs. 1 life
for which nothing depends)
o “Customs of the Sea”
 Real custom? You can engage in cannibalism, but this is not a case of
cannibalism
 Here, there is a murder that gives the opportunity for cannibalism
o “Lord Hale”
 You cannot take life for life. You cannot take property to save life
 You are on your own. You can bargain and do consent calculus
U.S. V. BERGMAN

Prosecution’s Case?
o Imposing nothing more than a fine will not be effective
o Prison is preferable b/c:
 General deterrence – other rich individuals will know they will get
punished for breaking the law
 White collar criminals – shows that we are willing to prosecute the
wealthy
o D is a fraud who used Medicaid to personally finance himself. Lied on his taxes.
He is a doctor and knows what is going on. Not ignorant. D calculated the risk of
the crime and did it anyway. He knows right and wrong. Statues were created so
money is protected. He pretends to be a good person, but he is not.
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Defense’s Argument?
o D is an older man who is not in very good health. He is a rabbi, philanthropies,
and does good things for people around the world. He is not killing, raping,
kidnapping, etc. It is just a little bit of tax, Medicaid, and white-collar crime
o Already suffered public scrutiny/reputational impact
 Court has discretion to give lower punishment; community will suffer a
net negative impact as a result
o Statute does not require imprisonment; other types of punishment are available
b/c retribution comes in many forms
 Humiliation
 Fine
 Community service
Retribution/General Deterrence:
o White collar criminals have a lot of lawyers, $$, and can get away with it
o We finally caught one and need to make example
 Sending a message: WHEN we catch you, we will punish you to the
maximum terms set by the people
Rehabilitation/Special Deterrence
o He has already been pushed by the society as a whole  negative media
o General deterrence is already done by the promulgation of the statute
What form of punishment?
o Individual vs. social ends
 Immanuel Kant argument: have to look at defendant as individual. He is a
good man and will not engage in white collar crime going forward
 Society is better off because he will contribute to community
o Prison vs. alternatives
 D sent to prison for 4 months – it would be cruel to confine D for years
since it is a non-violent first offense with no direct assaults or invasions
of other’s security, plus D is not well.
 General deterrence + it does NOT depreciate seriousness of crime
WHEN DO WE PUNISH: GENERAL REQUIREMENTS
FOR CRIMINAL LIABILITY
Framework for Punishment
1st: We need a STATUTE
 The prohibited conduct must be outlined in a statute, which is subject to all
interpretations (as learned in legislation/regulation)
o Be careful which statute you pick as a prosecutor
2nd: Need to meet all the basic elements of criminality:
 Lege/Lex  Statute (no punishment w/o a statute)
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Actus Reus: voluntary act OR culpable omission
Mens Rea: the intention or knowledge of wrongdoing
Causes harm
Actus Reus
THE GENERAL REQUIREMENT

Actus Reus: the commission of some voluntary act that is prohibited by law. A
fundamental principle that criminal liability always requires. It is assumed. (NOTE:
doesn’t have to be written in every statute)
o (1) voluntary act; (2) that causes; (3) social harm
o For example, if A stabs B, killing B, the actus reus of a criminal homicide has
occurred.
 A performed a voluntary act (stabbing B) that caused B’s death (the social
harm)
Policy and exclusions:


Voluntary actions/culpable omissions of the individual:
o You cannot be prosecuted for a crime unless and until you reach out of your
bubble (D not guilty until voluntarily reaches out of bubble)
o Voluntary: anything that is not involuntary
 NO liability for involuntary acts
Excludes bad thoughts alone: Internal desires, passions, etc. (ex: writing in diary you
want to kill someone) are not criminal and cannot be prosecuted (cf earlier days of
inquisition and forced confessions)
o Can’t be punished for your thoughts, have to do a bad act
o Not a product of will? Writing in your diary that you want to kill someone
 This is not a product of will because it lacks a volition
o Right to Privacy Theory: Everyone has bad thoughts at times. This is a basic
theory of privacy. Everyone has a right to privacy (Private life is SEPARATE
from public life). Otherwise, everyone would be criminals. What if person
changes their mind? Plus, it is difficulty distinguishing between fantasy and
wishing
 Cogitationis poenam nemo patitur - no one is punishable solely for his
thoughts
o Basic Political Theory: Individuals live in their own private bubbles and in that
bubble, they can think and act however they want as long as they “DO NOT
REACH OUT TO SOMEONE ELSE’S BUBBLE”
 Until you voluntary reach out to someone in their own bubble,
criminal law has no interest in you
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Excludes status/characteristics not voluntarily assumed: no voluntary act in status so we
do not penalize it (cf earlier days where we prosecuted based on classes)
o Modern liberalism says that statuses (just like thoughts) are NOT actionable
 Examples: White, Hispanic, Gay, Bisexual, Buddhist, etc.
 Who you are/what you think/what you are planning has NO bearing on
inviting a criminal sanction?
Excludes involuntary actions or conditions: reflex (check-up kicks), convulsion (seizure),
bodily movements not included (MPC 2.01)
AR requirements in statutes  Martin v. State: breach of peace statute (drunk picked up
by police and dropped off on highway) - At time of the arrest, Martin is at his home
drinking and is intoxicated. Police officers come into his home and arrest him on NO
cause. They take him to a public highway; Martin resists arrest. Then, police arrest him
for public intoxication. Alabama statute says you cannot be drunk in public.
o Statute imposed liability: while drunk, appears in public, manifests drunken
condition
o Court read AR into the statute and assumed it (absence of it in the statute is not a
problem)
o Prosecution? The statute’s requirements are all met
o Defense? He did not voluntary show up on the highway. This is a moral issue
o Actus Reus Requirement: Martin voluntarily got drunk on a public freeway with
loud profanity  Textually, the statute is met. The statute says nothing about
involuntary or volition
 In the reading of a statute, is the absence of a voluntary act requirement
fatal? NO. Voluntary act requirement does not have to be included in
statute. The people presuppose that police will not behave in this way
o Actus Reus is ASSUMED
 The absence of specifying is not fatal
 You have to assume the person is going to be expecting the voluntary act
requirement written in every statute
● PROSECUTOR: wants to make the D be someone who
voluntarily risked their impairment
● DEFENDANT: wants to make it look like a plain involuntary
condition
HYPO: Drunk man leaves his house and runs into another man, while yelling profanity
at him. He has voluntarily violated the statute. Unconscious defense? NO, the law does
not buy this. He voluntary got drunk and left his house.
Voluntarily getting yourself drunk and then claiming it was involuntary does not work.
The person voluntarily impaired their condition
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HYPO: Witte has a car and drives to the airport. For the first time in his life, he has an
epileptic seizure, hits a car, and kills passenger  NO ACTUS REUS because it was not
voluntary, as he had no prior knowledge of this type of condition
HYPO: Witte has an epileptic seizure every day at 12pm. At 11:50, he gets in the car,
drives to the airport, and kills the passenger  THERE IS ACTUS REUS because he
voluntarily courted the known risk. Completely voluntary
HYPO: Witte has seizures every couple of months, sometimes weeks. Doctor gives him
medication, but it is expensive and makes him fat, so he does not take the meds. He has a
seizure while driving and kills passenger  THERE IS ACTUS REUS because the
doctor gave him medication to mitigate the seizure problem
o He voluntary impaired his own volition
VOLUNTARY ACT RULE


Two components: the “act” and its “voluntary” nature
o Act of choice, volitional by D
o Excludes:
 Thoughts alone – must have a physical manifestation
 Inherent characteristics/status – race; sexuality
Three aspects of the term “act”
o Sometimes there can be a bodily movement, but really no “act” by the person
whose body moved
 If A grabs B’s arm and swings it into C’s body, B has not acted
(voluntarily or involuntarily), although her arm has moved
● B’s arm moved as a result of A’s grabbing it
o The term “act” does not apply to the results of a person’s bodily movements
 Suppose that D, intending to kill V, places dynamite around V’s house,
where V is asleep, and then activates the detonator that causes an
explosion, killing V.
● Act → putting the dynamite around V’s house; does not include
killing V
● Social harm → killing V
o “Act” → muscular contraction must be voluntarily performed
o MPC defines “act” as “a bodily movement whether voluntary or involuntary,”
except “partially and indirectly,” by listing bodily movements that are involuntary
(reflexes; convulsions; conduct during unconsciousness; and conduct that is “not a
product of the effort or determination of the actor, either conscious or habitual”)
VOLUNTARY IMPAIRMENTS/RISK OF IMPAIRMENTS


Voluntary impairments of volition do satisfy AR (ex: alcoholism would satisfy in Martin)
Voluntary risk of impairments leaves room for argument P and D
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o EX: give me your hand, old faithful
People v. Newton: gun struggle during traffic stop => shot
o P: D courted the risk by having a gun and voluntarily putting himself in that
position b/c he did not submit to the will of the officers
 Try to make D’s involuntariness look self-imposed / consciously risked
o D: D rendered completely involuntary by shot, the only thing D did voluntarily
was drive the car
 Make D’s conduct look involuntary
VOLUNTARINESS: By self, others, by nature (See MPC 2.01)
o MPC defines voluntariness indirectly by simply listing examples of involuntary
acts; they do not include many types of conduct that are often described as
“involuntary” in ordinary speech
 To add further confusion, the term “involuntary” does not have a
consistent meaning even within criminal law
o Involuntary act’s definition is much more NARROW than ordinary understanding
 Involuntary act: an act which is done by the muscles without any control
by the mind (spasms, convulsion, unconscious, etc.)
● An act is NOT involuntary because the doer does not remember it
or because he/she could not control their impulses
○ Also, NOT involuntary when unintentional or its
consequences are unforeseen
Defense: Make Defendant’s conduct look involuntary
o D’s body had a reflexive shock reaction, where his body was trying to secure its
own safety. He experienced convulsion and it was NOT voluntary.
 It was INVOLUNTARY – the body kept operating under duress and acted
defensively for self-preservation
●  NOT ACTUS REUS
Prosecutor: Make Defendant’s involuntariness look self-imposed/consciously risked
o D voluntarily got into the altercation with the police. Cops have a right to use
their weapons as they see fit. When you voluntarily resist arrest and talk back,
certain things might ensue.
 Conduct was VOLUNTARY because D put himself in that position and
context of altercation
o When it comes down to actus reus after getting the statute, the question is:
did you commit a voluntary act? Evidence has to be countered on both sides
Prosecutors  Want to make the impaired condition A VOLUNTARY act
Defense Attorneys  Want to make the impaired condition NOT a voluntary act
INVOLUNTARY ACTS

Unconsciousness  no longer operating with choice or will; not a volitional act
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o Dreams which resulted in a conscious expression of subconscious emotional
hostility led to murder was NOT regarded as an act at all
 Common law & MPC: the act is considered involuntary
 Law concerns for the purpose of punishment is within CONSCIOUS mind
Reflexes  sudden movement that is not in your control
Hypnosis  intense focus that results in the loss of an understanding of the surroundings
Physical condition  i.e., seizures/epilepsy: a person’s movements during epileptic
seizure are indisputably involuntary
o BUT – what about if someone knows they have epilepsy and make a conscious
choice of a course of action?
 “A person’s awareness of a condition which he/she knows may produce
such consequences, and his/her disregard for consequences, render them
LIABLE for CULPABLE NEGLIGENCE”
Not a product of your will  X grabs Y’s hand and hits Z with it
o Person who grabbed the hand is at fault
OMISSIONS TO ACT
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

General rule: no obligation to help; Absent special duty relationships, parties DO NOT
have to help their neighbors in jeopardy (NO duty to help your neighbor). Failure to
intervene is NOT actionable. You may be viewed as immoral, but you are not viewed as
criminal
o Can’t be criminalized for omissions unless certain specific factors are present
– if there is a duty created by a special relationship, the law will step in and say
you do have to intervene and help
Policy: individual generally can’t be forced to reach out of bubble to help neighbor
because we want professions to help but we do not want to make individuals help
because of various other factors (bystander effect, sometimes people make it worse than
they act, hard to draw line)
Types of Omissions by 3rd Parties
o Bystander Indifference—in the presence of other bystanders, no one reacts
because the pluralistic ignorance induces multiple bystanders to interpret other
non-action as a sign of no danger
o Choice of Nightmares—fail to intervene and experience the empathetic distress
of watching another human being suffer, the guilt of failing to live up to a
minimal threshold of decency, and the same of having that failure witnessed by
others OR intervene and risk retaliation by an assailant, the ridicule and derision
of non-intervening bystanders and the threat of being mistaken for the cause of
the harm
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Omissions – Duties and Exceptions:


Actionable duties (general limit to all exceptions: to D’s risk of own life and limb)
o Must exercise appropriate behavior w/o risking life or limb
Jack and Jilly Hypo: Jack and Jill are long cohabiting lovers. Jill is a policewoman and is
also trained as a nurse. Jack punches Jill in the face. Jill stabs Jack in self-defense and runs away.
Jill returns later; Jack is bleeding and unable to move, but still alive. Jill leaves and goes to work
for 12 hours as a policewoman but does nothing. Jack remains alone and dies 24 hours later from
blood loss. The coroner says Jack would have lived had Jill called 911 on discovering him. Does
Jill have an AR for homicide? The prosecution should bundle breached duties when possible.
Grounds for Duties
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If there is a duty, the failure to act is actionable
Relationships: has to be a formal, legal relationship that the law has privileged
o Husband/Wife; Parent/Child; Guardian/Ward; Captain & Crew/Passengers
o NO DUTY: Children helping parents; non-married couples, step-children
Statute/licenses: on-duty police, fire, state-licensed emergency personnel; ship captain to
crew/passengers; doctors
o The law says there are a number of times when there is an obligation to do your
job by statute
o Fireman, policeman, doctors, paramedics ON THE JOB
o It is a breach of a statutory duty to not help
 Negligent doctor – can be criminally prosecuted b/c they violated their
license to touch the patient’s body
 Ship captain – based on license to operate, duty is to care for
crew/passengers
Contract: If there is a contract between the D and victim that has now created a special
contractual duty, the failure to discharge the duty may be actionable NOT just as a breach
of contract, but it might rise to the level of a criminal case
o Example: Track runner and his coach
o If bilateral contract,  DUTY
o Also; if a person is employed somewhere, they have a contractual duty
 Example: Security guard employed by Emory University to watch over
the lake and help people who may have fallen into the lake
 While there is no contract between security guard and the victim, the
contractual duty is a 3rd party beneficiary (anybody in the lake; security
guard has a contractual duty to discharge for Emory intended for the 3rd
party beneficiary)
D’s creation of peril: even accidental creation of peril can create duty
o Example: If someone hits another person in the nose and they start bleeding and
ask for help, the person who caused the injury has to help
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
o D are held actionable for the harm caused to the victim; they have an obligation
o The hit itself may be actionable, but the case can be built up MORE
 The person created the peril, had an actus reus duty to intervene to save
the victim from the peril created (may be even more serious than hit itself)
o Intent does not matter – have an obligation because you caused the harm to V. If
the person accidentally hit someone and created peril by accident, there is still a
duty to rescue.
 Failure to rescue is actionable
 Example: If D hyped up the mother to beat up her baby, SHE created the
peril for the victim and she has a duty to intervene and help
D’s voluntary assumption of care precluding care by others (voluntarily precludes care
to someone else from helping)
o If a person voluntarily precludes care to someone else from helping. The failure to
discharge duty of care voluntarily assumed that someone else could have done
that care creates an action
 It is a voluntary assumption of care that precluded someone else from
intervening  This IS a breach of duty and it IS actionable
o Example: If D had run out of the house while Norris was beating her child and
told someone else to call 911. If that person said yes, but then decided not to call
911, this creates an action because they precluded someone else from doing it.
o This will trump any other duty
o Key question  whether your actions precluded someone else from helping V
Duties can be bundled
People v. Beardsley
 Takeaway: not every moral obligation to act creates a legal duty; subject to a few limited
exceptions, a person has no criminal law duty to act to prevent harm to another, even if
she can do so at no risk to herself, and even if the person imperiled may lose her life in
the absence of assistance
Criticism of the General Rule

Utilitarian perspective → may breed contempt for society’s system of criminal justice.
o A rule that requires people to assist others in peril might promote social cohesion;
and some wrongdoers might decide commit crimes if they know that others were
likely to intervene
Defense of the General Rule



If people were liable for their omissions → huge backlog of cases would result
Liability of non-actions would create serious problems of proof of mens rea
Hard to prove causation
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
Enhanced possibility that the jury will incorrectly determine non-actor’s mental
state/degree of contribution to harm
Unintended counter-utilitarian effect → might do more harm than good
o Not every violation of a moral duty should result in criminal punishment
Special Case: Euthanasia



Passive euthanasia (refusal/cessation of life support by V)
o Common law says a victim has the right to refuse medical treatment
o Constitution: this is a privacy right - if you do not want anyone reaching into your
bubble
o Patients are allowed to say they no longer want treatment – if ignored by doctor,
this is aggravated battery
o Harder Question  “What if the victim cannot articulate his/her wishes?”
 Look to family members of the victim to act as surrogate for the patient
 Doctor has NO duty to continue treatment once it has proven to be
ineffective.
Active euthanasia (killing/facilitating suicide by V)
o Victim seeks affirmatively to die and seeks the help of another in aiding them to
die
 By an affirmative act, the D does help them die
o RULE: This is generally prohibited in most states. The party that hands over the
gun, syringe, medication is going to be brought up on homicide changes.
 This has been challenged by the constitutional privacy rights of the victim
herself.
Connection with Omissions/Actus Reus
o Doctors killing by reason of omission? Omission in the continuance of care.
Discontinuing life support.
 No action, no homicide
o What is the affirmative act? Pulling the plugs and tubes
o There is a duty to provide life-sustaining machinery in the immediate aftermath.
There is NO duty to continue its use once it has become futile in the opinion of
qualified medical personnel
 However, it is difficult to determine at which point the treatment will be of
no reasonable benefit to the patient, who should make decision, and who
has the authority to stop the treatment
● There are no precise guidelines. Made on the basis of facts which
will be unique to each case.
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Barber v. Superior Court: V’s family doctors took him off all life support. The court found the
doctor could not be held responsible for taking him off life support because he was past the point
of saving and the family acted on V’s behalf.
 Prosecution – Doctors performed an affirmative act OR it could be viewed as a willful
omission which arises from a legal duty
o Contractual duty (between doctor and patient; doctor’s duty is to administer care
to patients; 3rd party beneficiaries through hospital)
o Statutory duty (doctors is licensed by the statute to render care to patients)
 Defense – Doctor has no duty to continue treatment once it has proven to be ineffective.
Reasonable care stops when it will not work. Is there a duty to keep body alive? You
cannot give economic reasoning because you cannot equate human body with money.
The duty simply expires at a point.
 ** A doctor CAN withhold treatment in spite of a living will or family when the body
does not respond and when the future is determined to be permanent vegetative state. It
would be wise to advise doctor to get fellow support from other physicians, court order,
etc. **
Mens Rea
THE GENERAL REQUIREMENT
What is Mens Rea?  Simply intent
 “Actus non facit reum, nisi mens sit rea”: “An unwarrantable act without a vicious will
is no crime at all”
 Essentially, it refers to the blameworthiness in choosing to commit a criminal wrong.
The requirement of mens reflects the commonsense view of justice that blame, and
punishment are inappropriate in the absence of choice
o Defenses: Try establishing the absence of moral blameworthiness (involuntary
act, duress, legal insanity, accident, and mistake)
 In its narrow sense: more formal and technical requirement; it refers to the kind of
awareness or intention that must accompany the prohibited act, under the terms of the
statute defining the offense
o The concern of criminal law is limited to determining whether a defendant,
intended, expected, or should have expected his actions to produce particular
consequences
 Purpose; Intent; Knowing; Awareness
What’s Excluded
 Sometimes people reach out and harm their neighbor, but it is done purely by accident
o Of course, there is actus reus (voluntary act), but there is NO mens rea
 Accidents do NOT have mens rea
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What was D’s mental state at the time of the act/omission?
How to Determine: Evidence v. Inference-Drawing:
 How do you figure out the D’s state of mind when committed the actus reus?
o (1) Defendant herself: Starts talking, gives testimony, diary, etc.
 This is the easy way to determine state of mind and mens rea
 Generally, it is not this easy because D are advised not to talk, plead the
5th, or they could refuse to talk
o (2) Infer it from the circumstances: Sorting out the variations based upon the
evidence and how it gets presented to the jury
 There is a barometer of badness from pure accident  high MR
● There are degrees of mens rea: helping us make degrees in part
which accompanied the state of mind of D when harm was caused
 2 ways to determine the mens rea:
● (1) Common Law: more broad
○ General Intent: “Intent to Act”
○ Specific Intent: “Intent to Harm”
● (2) Model Penal Code: thinner, more explicit
○ Purpose; Knowledge; Recklessness; Negligence
 Note the “barometer of badness” – layer of gravity that must be assigned to D’s state of
mind that allows you to impute
o MR helps determine gravity of the crime (once we have AR and causation)
 Gun at forehead → most serious
 Gun into crowd → still serious
 Gun into empty street → less serious
 Gun at shooting range → least serious / no crime at all
o Each of these situations has identical actus reus and causation, but the scenario
changes and helps us impute a more serious mens rea, purely by inference
regarding her actions and the context
 Mens rea draws distinctions between pure accidents - for which we do not prosecute and what is purposeful
 Criminal law makes discernments - e.g. 1st degree, 2nd degree, 3rd degree;
aggravated/non-aggravated - which correspond to levels of gravity and often levels of
punishment.
o Our mens rea distinctions help us fit crimes within these categories
Regina v. Cunningham
 D steals gas meter, gas leaks, poisons victim
o Mens rea for homicide: general intent (death by asphyxiation is a reasonably
foreseeable consequence of taking gas meter) rather than specific intent (intending
to kill)
o Mens rea for larceny: specific intent
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Common Law MR Distinctions
 Narrow/Specific: actual intent to commit crime
o Purposeful behavior
o Specifically intending to do the harm prohibited by statute
o Much harder to prove, but much more severely punished
o i.e., to poison someone
 General:
o Intending to act/aware harms will occur – acts anyways
 Less serious crime; easier to prove


Sometimes general vs. specific intent is built into definition of a crime:
o Burglary: the breaking and entry of another person's dwelling with specific intent
to commit a felony inside
 Could potentially get D
o Larceny: the taking and asportation (removal) of another’s personal property with
the specific intent to deprive the V
 Could potentially get D
o Assault and Battery in General v. Assault and Battery with specific intent to kill
(or to kill a particular victim – a cop, judge, president)
 General → “intentional application of unlawful force upon another”
● the only mental state required in this definition is the intent to
apply unlawful force upon another (the social harm of the crime)
Most common specific intent crimes:
o Intention by actor to commit some future act (e.g., possession of marijuana with
intent to sell)
o Proof of special motive or purpose for committing actus reus (e.g., offensive
conduct upon another with intent to cause humiliation)
o Proof of actor's awareness of an attendant circumstance (e.g., intentional sale of
obscene literature to a person known to be under 18 y/o)
Common Law Formation
MPC Formation
Specific Intent: Intent to do the crime
Purpose: conscious objective to achieve the
crime
Knowledge: practical certainty that harm will
occur
General Intent: Intent to do acts with
reasonable likelihood of harm
Recklessness: conscious disregard of
substantial and unjustified risk of harm
Negligence: D should be reasonably aware of
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risk of harm
Accident
Accident
MPC Mens Rea Distinctions (§ 2.02)
1. Accident – we do not prosecute
2. Negligence – 4th degree
o Should be aware of substantial and unjustified risk
o Being incautious, defying reasonable care
 More than an accident – soft recklessness
 It is not just being clumsy and violating average standards of care. It is
being in defiance of a reasonable standard of care, where the risk of your
behavior is kind of high.
o E.g., leaving food on the stove – sets fire to house; pushing someone away from
you – they fall into a river and drown; going 40mph in a 30mph zone and hitting
someone
3. Recklessness – equivalent of general intent; 3rd degree
o Conscious disregard of substantial and unjustified risk
o Not just acting accidentally  acting with a substantial risk of a prohibited harm
 You know the risk of behavior that something bad is going to happen. You
basically courted those sets of risks, knowing what they are
o Example: Firing a gun at 3 in the morning with no one running around; going
50mph in a 30mph zone and hitting someone
o Intent to Act (General)
4. Knowledge – 2nd degree
o “Soft purpose” – not desiring it, but practical certainty that harm will occur
 It’s not that you are consciously trying to achieve that prohibited end, but
you know the risk and circumstance and know somebody could potentially
get hurt
o Example: Firing a gun at 12 noon with a bunch of people running around you;
going 75mph in a 30mph zone and hitting someone
5. Purpose – equivalent of specific intent; 1st degree
o Conscious objective – attempting to do the crime
 Difficult to get to this level without evidence
o Knowing all of the circumstances and risks and STILL doing it
o Example: Holding a gun pointed at the center of someone’s forehead & pulling
the trigger
o Intent to Harm (Specific)
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Examples of “Material Elements”
o Breach of Peace in Martin; While drunk; appears in public; manifests
drunkenness through loud & boisterous conduct
o Larceny in Cunningham: Trespassory; Taking/removal; Personal property of
another; With intent to deprive
With the exception of a few situations, a person is not guilty of a criminal offense unless
the government proves (1) the actus reus of the crime, and (2) the mens rea → a guilty
mind
Elemental approach to mens rea - Must prove that D committed each material element of
the offense with the particular state of mind required in definition of that crime. Guilt
can't be based simply on proof that D committed actus reus of an offense in a morally
blameworthy manner
o E.g. “D must while drunk, appear in public and manifest drunkenness through
loud and boisterous conduct” – mens rea must apply to all 3 parts
If the statute does not specify what mens rea is required, the default is at least
recklessness, knowledge in some jurisdictions – can only be SL if the punishment is
misdemeanor level
If statute defines an offense and only describes one mens rea necessary despite having
multiple material elements, the mens rea applies to all elements (unless obvious contrary
purpose)
Broad Meaning: The “Culpability” Meaning of “Mens Rea”
o Moral blameworthiness → D committed the social harm (harm to society) of an
offense with a morally blameworthy state of mind
 Blameworthy state of mind → deserves to be punished
Narrow Meaning: The “Elemental” Meaning of “Mens Rea”
o “Mens rea” may also be defined as “the particular mental state provided for in the
definition of an offense”
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
A person may possess the requisite mens rea in the culpability sense of the
term and lack the requisite elemental mens rea
● EXAMPLE: Assume murder is defined by statute as “the
intentional killing of a human being by another human being.”
● Actus reus → a voluntary act resulting in the killing of a human
being by another human being; Mens rea (mental state) →
intentional killing
People v. Conley – D hits victim w/ glass bottle, court infers knowledge MR of causing bodily
harm from his actions
 Intent/specific intent can be baked into a statute - e.g., assault is bad, but assault with the
intent to kill someone may be a whole new crime with a worse punishment
 There is a presumption that one intends the natural and probable consequences of
his actions. Intent can be inferred from surrounding circumstances (offender's
words, weapon used, force of blow) - burden of proof still in P
 In some jurisdictions, you can't bring two cases on the same incident, so prosecution has
to balance bringing the harshest case possible (aggravated battery) vs. what you're most
likely to get (battery)
 Federal law adds up to 5 years extra punishments for hate crimes - crimes with motive, as
well as intent.
Transferred Intent
1. Different Crime: D intends to do one crime and another crime occurs  MR drops
down a level/rung
o E.g., A shoots at B, bullet misses and hits a valuable painting
 Charge A w/ attempted first-degree murder and second-degree criminal
mischief
● Murder MR drops down a rung for criminal mischief MR
2. Different Means: D intends to do harm using one method, and harm occurs to same V
through another method  same rung on MR scale
o E.g., A shoots B, B is terrified and dies of a heart attack
 Charge A with first-degree murder – no attempt crime
● Purpose MR transfers
3. Different V: D intends to do harm to one person, winds up doing harm to another  MR
drops down a rung (often lower the offense, but max out the sentence within that
classification)
o E.g., A shoots at B, bullet misses and hits C
 Charge A with attempted first-degree murder (purpose MR) and seconddegree murder (transferred, knowledge MR)
 Transferred intent does not apply to general intent/recklessness crimes
 Example: Ashley wants to kill Professor. Everyone knows she wants to kill him. When
she fires at him, she misses. The bullet hits another student in the head and kills him. She
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specifically and purposefully intended to kill Professor. This is NOT a terrible accident. It
was risky and dangerous. Can we transfer the intent directed to Professor to the actual
victim? YES
o Can we say Ashley purposefully tried to kill student? NO
o But it is more than reckless  KNOWLEDGE
Example: Ashley just wants to scare the Professor. Halfway through class, she takes out
her gun, puts it in the air, and fires. It scares everyone in the room. Bullet hits and kills
student.
o Her purpose was to scare – aggravated assault
o Can we say Ashley intended to kill the student? NO, it was accident
o The law determines it is  RECKLESS
Example: Ashley wants to shoot professor and intends to kill him. She aims, fires, and
hits him square in the head. It goes through his head, bounces off board, and kills a
student. Now, there are 2 homicides
o With respect to professor  PURPOSEFUL
o With respect to student  KNOWLEDGE or RECKLESS
Example: Ashley fires the gun and it goes through the board. It hits a gas pipe and
explodes. There is a massive explosion and 33 people die. Intervening between the shot
and student’s death is the gas pipe exploding. With respect to dead bodies, she was not
intentionally killing anyone.
o She was engaging in RECKLESS, MAYBE KNOWING, behavior, but it was
stipulated that she did not know there was a gas pipe
 It will most likely be a GENERAL INTENT crime, because it would be
hard to prove a specific intent crime
Example: Someone comes in and shoots up the school. Is this a purposeful killing?
o We interested in what the D’s intent was?
 If it was to kill as many people as possible and NOT identifying the
victim, we can charge with PURPOSEFUL
 When the person comes into the room intending to kill one specific person
and also kills 15 people in addition
● With 1 specific person  PURPOSEFUL
● With the 15 other victims  KNOWLEDGE
Homicide Statutes: Homicide statutes are shifting. There are too many mass killings and
terrorism. If you intentionally engage in an act, we are going to decide that ALL of those
deaths are first degree.  This is a statutory defense to 1st degree/Purposeful
STRICT LIABILITY OFFENSES

Strict liability = no MR
o We have the actus reus
o We have the caused prohibited harm
23
o Therefore, we do not need anything else
 “If you do it in violation of the statute, you are guilty”
 A lot of agency rules and regulations tend to be strict liability offenses
 Rationale behind strict liability:
o Avoid burdening the prosecution with putting together prima facie cases for small
offenses
o Regulatory offenses/minor public welfare offenses – often strict liability
crimes; often have a small punishment  public welfare offenses do not require
MR
 Almost always a misdemeanor
o Efficiency in the legal system
 Examples: speeding, hunting without a license, environmental vehicle violations
 This does not seem to go with our level of thinking that we are all in our individual
bubble
o If you accidentally hurt someone else, we will let him go
o We are people who interact with society and there are all kinds of accidents
 BUT – strict liability says, “To hell with all of this protection”
Regulatory/Public Welfare Offenses
 When you break regulatory rules, you are guilty
o Machinery licenses, food regulations, etc.
 When you break public welfare offenses, you are guilty
o Seatbelt regulations; no direct or immediate injury to a person or property but
merely creates a danger or probability that the law seeks to minimize
o Regulatory offense says: “So sorry, but if you break this law, you are liable”
General Rule and Policy
 We do NOT want to waste judicial resources: It would be an administrative nightmare for
the court to adjudicate small matters about breaking regulatory & public welfare crimes
 We want these rules to be AUTOMATICALLY enforced
 Charismatic Authority: In a world where there is intimacy, understanding, and mutual
expectation, outlining conduct can have its own legal methods of enforcement
o In modern world, we have a lot more anonymity, we cannot assume the
charismatic authority. We have no common idea or framework of a local
community that can regulate these issues locally
 Therefore – we need a set of rules for everyone
●  Consequence: Little slap on the wrist. You are not going to
have a criminal record or be labeled as a felon
 We have extra judicial efficiency for the regulatory state, but the quid pro quo is
that you cannot get hit very hard
Morrissette v. United States
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
Statute: Whoever knowingly possesses, and converts or sells a thing of value that is U.S.
property will be punished (up to 10 years in prison, up to $10k fine)
o This statute cannot be read as only requiring knowledge w/r/t possessing and
selling and not w/r/t the object being U.S. property, because that would make it a
strict liability offense. This cannot be a strict liability offense b/c no slap-on-thewrist punishment.
o Strict liability offenses MUST have small punishment; doing otherwise would
violate DPC
o Offender can generally prevent strict liability offenses with nothing more than
reasonable care; penalties often small, and conviction doesn't do grave damage to
reputation
o Statute not specifying any required mental state does not mean that none
exists.
 Can only be read as a strict liability statute if the punishment is
misdemeanor
 Due Process?
o Basic crimes against the person, like homicide/burglary, are bad in themselves
 The MR requirement says unless you can show it was NOT intentional,
you are going to be held liable
 With SL, regulatory offenses vary on what is appropriate or inappropriate.
Things are obviously not criminal anymore. We ditch MR and hold them
accountable.
 2 problems with this:
o (1) Not obvious this is wrong
 No inherently bad thing is involved
o (2) The protection of liberty found in MS is gone too
 No protection against the government
 “The thought is that we want easy application of leg reg rules without the apparatus of
the judicial system”
o ** Trade-Off: For the efficiency of making these rules stick by ditching mens
rea, we are giving much smaller punishments
o Morrissette underscores this notion: It sets a benchmark and notes that imposing
heavy punishments requires the use of the usual constraints, including MR
 We will allow SL crimes, but mens rea has to be proven for big
punishments
Staples v. United States
 Statute outlaws machine gun without license, imposes 10-year penalty and is silent on
mens rea. D did not know his gun was a machine gun. Court says this is NOT a strict
liability statute
o U.S. v. Freed - possession of unregistered hand grenade is strict liability offense
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
This is different because a gun is not an item, like a hand grenade, that
puts a person on notice of illegal item, they are generally legal (character
of the item regulated)
o Like Morrissette, you cannot read this statute as a SL offense because the
punishment is too harsh. (We can do the balancing, but the deal is that you cannot
be punished an inordinate amount)
FINAL POINT: We have to be more generous in allowing the government to
regulate behavior and have these offenses applied without judicial constraint.
o However, as a matter of liberty, privacy, bubble protection, and now
constitutional protection, you cannot invoke harsh punishment for a strict
liability offense
MPC 2.05
MISTAKE OR IGNORANCE OF FACT AND LAW


MPC 2.04
D’s mistake of fact defeats a finding of general intent/recklessness IF:
o Affirmative defense – D has an obligation to raise and introduce evidence
supporting
o Raised when seeking to defeat mens rea. Would not help in strict liability
Mistake of Fact
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

Partial, powerful defense that a Defendant has
o It is an attempt to derail the prosecutor’s case at the mens rea stage
o Because the Defendant was mistaken, there is no mens rea, & no crime
 Defense counsel has the obligation to tell the jury that their client did not
have mens rea because the D was mistaken
Necessary Elements
o Mistake has to be honest
o Mistake has to be reasonable to the defendant
o Defendant’s conduct would have been legal if the facts were as he/she supposed
them to be
Rule: In pleading mistake of fact, we look for an honest and reasonable mistake
which would render defendant’s conduct legal if the facts were as he supposed them
to be
HYPO: A student accidentally takes the wrong book and now it is stolen property.
Technically, it is a voluntary act, but did he really intend to grab the wrong book. It is
very easy to grab someone else’s book. We are in a world where 2 bubbles overlap and
this is an honest mistake.
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
o HOWEVER – there comes a point where it becomes absurd. If he stole 10 books,
it is no longer an honest and reasonable mistake.
Honest & reasonableness go together
o Additionally, mistake of fact requires your conduct to otherwise be legal
o HYPO: Intending to kill someone, but you kill their twin brother. This is NOT
mistake of fact because D’s conduct would not otherwise be legal.
o Always look at the circumstances surrounding the situation.
o It is the burden of defense counsel to prove there was mistake of fact to defeat
MR
Mistake of Fact in General Intent Crimes


D's mistake of fact defeats a finding of general intent/recklessness if:
o Honest
o Reasonable
o D's conduct would have been legal if facts were as he supposed them to be
Ex. Grabbing someone else's book while running out of class - this is honest and reasonable.
Grabbing five books? Not reasonable. Two or three? On the border.
o Grabbing one book that's not yours, but police find 900 copies of the book in your
closet - might be reasonable, but isn't honest
o Grabbing someone else's marijuana in a state where it's illegal? Might be honest and
reasonable, but conduct wouldn't be legal even if facts were as he supposed
Mistake of Fact in Specific Intent Crimes
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
D's mistake of fact defeats a finding of specific intent/purpose if…
o Honest
D's mistake does NOT have to be reasonable
Subjective standard (did he believe?) rather than an objective one (should he have
believed?)
People v. Navarro
 D steals beams from construction site, thought they were abandoned - court says honest
mistake is good enough for acquittal on a specific intent crime like larceny
 If D was illiterate and can't read sign that says "KEEP OUT" - this would be honest, if not
reasonable, and thus D is not guilty
Often, using mistake of fact defense for specific intent crime will result in a conviction for
the general intent version of crime (e.g., misdemeanor version)
Exceptions to Mistake of Fact in General Intent: Moral Wrong Doctrine

Moral wrong doctrine - even if mistake is reasonable and honest, D can still be held liable,
even for serious crimes
o Generally found in sex crimes (i.e., D thinks V is over 18 but she is really 16)
 Sex with minors
 Incest
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Bigamy/polygamy
Intentionally abandoning a pregnant spouse
o Effectively strict liability, but with felonious liability instead of a slap on the
wrist (treated like strict liability but is a felony)
Moral offenses are falling aside, but legal offenses are starting to gain traction
o If D thinks he's doing a lesser wrong but by mistake does something worse, he's
held liable for the worse one
 E.g., you thought you were stealing a $10 print, but it's actually a $20M
masterpiece. You're liable for stealing $20M painting
MPC § 2.04 gets rid of the distinction between general and specific intent crimes - any
crime that has mens rea attached to it can be defeated with honest and reasonable defense.
Jury decides if honest and reasonable mistake
o Most jurisdictions don't adopt this, common law is majority position
Mistake of Law

What is it? The Defendant knew full well what he/she was doing and understand everything
that was going on but did not think what they were doing was criminal. They did not think
the law applied to them and/or that their conduct was prohibited by the law
o The burden is on the defendant
o General starting point: mistake of law defenses don't work
 Rationale: Don't want to invite people to interpret law for themselves; don't
want prosecutors to have to prove that every citizen knew the law
Exceptions:
1. Outright mistake of the law.
 Sometimes there are contradictions in the law
2. Misleading interpretation issued by public servant/agency/body of law legally allowed
to issue such interpretation
 Must be official, can't be (for instance) an ex-judge or a private law firm issuing an
opinion letter
3. Law hasn't been published yet, or law changed or was interpreted different (ex post
facto)
4. Prima facie case actually involves knowledge of law.
 E.g., kidnapping - holding or taking someone without authority of law. Knowledge of
law is baked into statute, so ignorance of authorization is creditable
 Bringing a kid home from school because he's sick and arrested for
kidnapping - if you are a teacher and thought you were allowed to take him,
your ignorance of the need of authorization of law allows mistake of law to be
a defense
 E.g., “knowingly polluting without a license”
People v. Marrero
 A federal prison guard with an unregistered gun cannot use the mistake of law defense to
claim that he thought he fell under an exception for "peace officers"
28
o
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Court says this is clever lawyering after the fact and does not defeat mens rea at
the time
Basic Law and Order Rule: Ignorance of the law is NO excuse
Policy concerns?
o (1) Want to encourage people to know what the law says and engage in prudent
behavior, especially when things are at stake
o (2) Every defense attorney will say their client did not know the law
 It would then become the prosecutor’s job to prove D knew what the law
was and then purposefully flout it. This is a complete imposition on
prosecutor’s world
Potential Problem? It seems kind of unfair to make everyone know what all of the laws
are in their state. Especially as the number of crimes increase, we have a system that
proliferates law. There is a whole massive set of codes that nobody knows
Exceptions
o Contradiction in Law: When there is a blatant contradiction in the law
 Sometimes statutes have contradictions in them and they stay in a place
for a long time before someone picks them out. It could be shown that
someone is relying on one of the contradictions in the statute
o Change in Law: The Constitution says there can be NO ex post facto
legislation
 Penalizing in rear what was perfectly reasoned conduct
 HYPO: On Monday, it is legal to smoke week. On Tuesday, the
legislature makes it illegal. On Wednesday, 2 people get arrested for
smoking weed on Monday. NO!
o Official Interpretation Law
 Reliance on official interpretation that makes conduct legal is a ground for
proper mistake of law defense
 You cannot have someone regular in the community make the
interpretation
 It has to be an official that has jurisdictional authority; agency or
officer of the legislature. Attorneys DO NOT count
o When Knowledge of Law is Made a Material Element of the Offense
 Once in a while, statutes are created that have “knowledge of authority of
law” drawn into them
 If you mistakenly think that you have authority to do the conduct you do
not have the requisite mens rea to be convicted of the offense charged
 HYPO: Environmental – knowingly engaging in public dumping
without a license. Mistake about whether you needed a license is
credit
29
o If you honestly & reasonably didn’t think you needed
license, that will be a defense. It is a narrow exception, but
it is a recognized one.
MPC 2.04
1. Ignorance or mistake as to a matter of fact or law is a defense if:
a. the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or
negligence required to establish a material element of the offense; or
b. the law provides that the state of mind established by such ignorance or mistake
constitutes a defense.
2. Although ignorance or mistake would otherwise afford a defense to the offense charged,
the defense is not available if the defendant would be guilty of another offense had the
situation been as he supposed. In such case, however, the ignorance or mistake of the
defendant shall reduce the grade and degree of the offense of which he may be convicted
to those of the offense of which he would be guilty had the situation been as he supposed.
3. 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.
4. The defendant must prove a defense arising under Subsection (3) of this Section by a
preponderance of evidence.
Causation
General Rule
 WHAT IS IT: This is the LAST required element of the prima facie case:
o (1) Lex (2) Actus Reus (3) Concurrent Mens Rea (4) Chain of Causation 
Resulting Harm
 Between the act, there must be a chain of causation, which can be long and
twisted, but it must be UNBROKEN (This is hard)
o Prosecutors: Do NOT like causation
 Defense counsel can confuse the juries about chain of causation
o Defense Attorneys: DO like causation
 There is enough wiggle room to confuse juries and have them acquitted
30
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
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You can get cause in fact from (1) an uninterrupted chain of events or (2) concurrent
causation
o IF the cause was reasonably foreseeable then chain of causation is not broken
 Negligent, clumsy, act of 3P’s, and V’s must be anticipated/are reasonably
foreseeable
o If the intervening cause was not reasonably foreseeable, it does break the chain (=
is a supervening cause)
 There is not causation against D (at best only attempted liability - see next
section of course
Purposeful behavior by 3P - exploiting the vulnerability of D and V
o If V purposefully does something to make things worse i.e., engaging in an act of
suicide, D walks as a consequence
Tool - reasonable foreseeability; would an objective reasonable observer have foreseen
the intervening cause?
o If yes  chain of causation remains in place
o If no  chain of causation is broken; D can be liable for attempt at best
Actus reus and mens rea must cause the harm that was prohibited in the statute
o Two types of causation - both must be proved
 Cause in fact/but-for causation
● If you take away the D's actus reus and mens rea, would the
harm have occurred?
● "But for what D did, would victim have been hurt?"
● If harm would've occurred anyway, there's no but for causation and
no case. Best you can get is "attempted"
 Cause in law/proximate cause
● Once you prove cause in fact, ask - is the chain of causation
reasonable?
● Is it reasonably foreseeable that the harm could have occurred?
○ Ex. Shooting someone and the bullet goes through his head
and ricochets off whiteboard and hits someone =
foreseeable
○ Shooting someone and the bullet goes through his head and
hits a computer and the spark causes a fire and it kills 1,000
people at the CDC and unleashes Ebola = unforeseeable
● Very woolly/subjective, can benefit defense
Cause in Fact (Step 1 Analysis)
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
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Injury must be within chain of events of action; not necessarily looking for the sole and
exclusive cause
We are not looking for something sufficiently and directly related from D’s act to
victim’s harm
People v. Arzon
31
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
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o D starts fire in abandoned building intentionally - no evidence of trying to burn
building down; fire combines with a different fire, and one of the firemen who
came for the first fire is killed by some of second fire
 D's conduct doesn’t have to be sole and exclusive cause - you can have
multiple causes of a single harm. D and starter of second fire can both be
fully liable for homicide
● This is concurrent causation or coincidental causation. Tool for
the prosecution
○ Ex. Someone burglarizes building and steals computer, but
security guard was asleep the whole time
■ By his omission, security guard has actus reus, that
along with his negligence, causes coincidental
causation
TEST: *** “But for Test” *** (But for the action, the result would not have happened)
o But for Mr. Arzon’s act of making that fire on the 5th floor, the fireman would not
have been there in the first place
 There CAN be multiple causation
● Independent actors causing harm to one victim
○ As long as it is in the chain and foreseeable, we can hold
them liable
COINCIDENTAL CAUSATION: (friend of the prosecutor, defense attorney dislikes)
o You can have multiple parties, each contributing to one harm to the victim, and
each will be held liable for a prima facie case to that victim
 UNLIKE torts, it is not about sustainability
●  It is about the reasonable foreseeability of that illegal act
causing harm
 Even though there were other contributing causes to the victim’s harm, the
thought is: EACH PARTY STANDS ON HIS/HER OWN POSTURE
o We are not worried about assigning responsibility. We can hold multiple parties
liable for ONE harm
 ALLOWS BOTH PARTIES TO BE HELD FULLY LIABLE FOR THE
ONE CAUSE OF HARM TO THE VICTIM
o We are talking about the harm to society, NOT about getting victim back to status
quo
 Every defense attorney does NOT like this
● They want ONE party to be held liable
o PROSECUTORS: Want to make multiple causation look like coincidental
causation
o DEFENSE ATTORNEYS: Wants to make multiple causation look like 3rd party
supervening causation
HYPO: Christina fails to help a neighbor whose house is burning down. She is the fire
chief and decided not to fight it. This was an omission contrary to statutory duty. There
was a baby in the house and baby died as a result.
o Arson and homicide are both present
o Can you hold her liable for arson and death of child? YES
 Cause in fact  Arson
32

Cause in fact  Omission by fire chief
Proximate Cause (Step 2 Analysis)




From Defendant’s perspective: what is reasonably foreseeable?
o What is within the range of the average reasonable person doing the AR & MR?
o This give an awful lot of room because the question becomes, “What do you look
to when you start one of these crazy high-speed chases in a populated area at
night?
 (1) Do you look to the particular kind of harm that occurred? OR
● It will likely not be easy to determine if it was reasonably
foreseeable
 (2) Do you simply look at death?
● It will likely be reasonably foreseeable
Injury must be direct and natural result of action
o Prosecution will make things very simple, general, typical circumstance
 E.g., Arzon - if you start a fire, it's reasonably foreseeable that firemen
may show up and be killed
o Defense will make things highly detailed and fine-grained - specific set of
independent scenarios
 E.g., Arzon - it wasn’t reasonably foreseeable that another fire would have
started on the second floor that would have killed him. It may have been
foreseeable that he would've died from D's fire, but certainly not
foreseeable that there would be another fire that would make a lot of
smoke as he was climbing down and he would fall and die
A person or event cannot be a proximate cause of harm unless they are a cause in fact,
but a person or event can be a cause in fact without being the proximate cause
No hard and fast rules; it is effort to determine, based on policy considerations or
matters of fairness, whether holding D criminally responsible for result is proper
Intervening Causes



Issues of proximate cause often arise when intervening cause exists - e.g., when some
but-for causal agent comes into play after D's voluntary act/omission but before harm
occurs
General Rule: if intervening cause is reasonably foreseeable, it does NOT break the
chain
o Typical intervening causes (something that contributes to the harm to V):
 Nature
 Third parties
 Victim themselves
o An intervening cause that breaks the causal chain = a superseding cause
o If there is a superseding cause, there is no causation – at best, attempt liability
This is defense counsel’s friend, as it provides a strong defense AGAINST the actual,
completed crime
33
o
HERE – when we discover an intervening causation in the course of the case, the
JUDGE at her discretion & the prosecution, as a matter of right, can change the
indictment from the completed offense to an attempted offense
 If causation is proven to be broken, the case changes to an attempt case
 It is a tool defense counsel uses to bring DOWN the charge
Natural/Physical Condition, Force Majeure
 A natural condition intervenes and makes things worse. Generally, we have to
presuppose natural conditions. SHOULD be foreseen//take V as you see them.
Examples:
o Breaking off gas meter, turning gas off and running away, but gas switch was
defective and house is poisoned - the nonfunctioning of the switch after you've
busted open the pipe is a natural condition that can be foreseen
o Starting a fire, wind picks up and spreads it much farther than anticipated - wind
is a natural condition that can be foreseen
o Pushing someone in water and alligator eats them - in FL, presence of alligator is
natural condition that can be foreseen and probably doesn't break causal chain.
In MT, maybe.
o Punching someone in the nose and they're a hemophiliac and bleed to death hemophilia is a natural condition that can be foreseen; you bear the risk of
touching someone's body inappropriately
 Is she guilty? Or was it just battery?
 Intervening causation: Did the physical condition cause the death?
 Argument: Unless she knew about the condition, we cannot hold her
liable
 All she did was hit him in the nose. She could not reasonably
foresee physical condition
 Counterargument: RULE: Take Your Victim as You Find Him/Her
 She intended to hurt him. We can impute reasonable foreseeability
of a condition like this
 Take your victim as you find them: it does NOT matter if you did
not know their disease
o You have to foresee that some people have fragile
conditions. It is one thing if she gently tapped his arm and
it bled. It is another thing to punch him.
Third parties
 A third-party action or omission makes things worse. Starting point rules (not hard-andfast):
o Conduct by intervening third parties that is negligent and reckless can generally
be foreseen
 Does NOT break the chain of causation
o Conduct by intervening third parties that is purposeful or knowledgeable is
generally not foreseeable
 DOES break the chain of causation
34


Examples: Punch someone in the face and EMT drops them a few times chain of causation is not broken. People are going to have
negligent/reckless care delivered to them. But if doctor cuts off leg b/c he
thought it was different operation, this is probably knowledgeable behavior
that breaks chain. D is guilty of battery, but not homicide
Rule of Thumb: 3rd’ parties WILL act recklessly and negligently
o You have to anticipate that 3rd parties will act negligently, unless 3rd party acted
knowingly, can the chain of causation be broken
 Especially by healthcare professionals (doctors, nurses, etc. + firefighters)
Victims themselves
 Same sort of reasonably foreseeable dichotomy as third parties - negligent/reckless action
does not break chain of causation; knowledgeable/purposeful action does
o Regina - if victim smells gas and does nothing, that's reckless - chain of causation
not broken. If she smells it as goes to the gas pipe and guzzles it down, that's
purposeful - chain broken
 The law says you have to assume that victims will act negligently and recklessly in
their own self-care – this is reasonably foreseeable
o Chain of causation will do student things when you harm them
 Sometimes the victim will get really scared, if you threaten to commit a harm against them
o This may seek reckless evasion
 Rule: Negligent and reckless evasion is something you ought to expect; it is reasonably
foreseeable
o If victim acts knowingly or purposefully to make it worse, chain of causation is
broken
o It is a subjective standard, but we have to see it from D’s perspective
o HYPO: If you start a grease fire in someone’s kitchen and they take a garden hose
to try and put it out, but this only makes the fire worse, this is only
negligent/reckless evasion
 "Free, deliberate and informed" conduct by victim in concurrence or reaction to D's
conduct can break the chain
 If victim is in a position of "apparent safety" and then independently acts to
exacerbate harm, this can also break the chain
People v. Rideout
 Drivers hit by drunk driver. They're okay; they go to the side of the road to go to other
car. They then go back to try to put headlights on, one of them hit by a car
o Because victim acted rationally, purposefully, and independently, chain of
causation is broken
o Victim was safe, and then voluntarily put himself back at risk
 Prosecution Case
o Vs were responding to D’s action when they re-entered the toad
 Foreseeable that they would want to check on car
35

Foreseeable that driving drunk would result in an accident
**Few added bells and whistles by Witte**
 (1) When Defendant completely destroys the victim’s body (beat up, badly bleeding,
bruised, etc.) and then the victim chooses to kill herself
o A few jurisdictions will say D has overcome the body of the victim such that the
victim seeks death as the only recourse
 D IS held liable and chain of causation is NOT broken
 (2) Even when you do not put victim’s body in mortal danger, but you overcome the
mind of the victim by repeated torture, kidnapping, etc. and the victim kills herself  D
is held liable
o Elizabeth Smart case; Hostages, prisoners; chain of causation is NOT broken
ATTEMPTED LIABILITY AND CAUSATION
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D does an act/omission with requisite mens rea, but harm prohibited by statute has NOT
occurred - D can still be held liable in attempt liability and can be punished around half
(of more) of the punishment of the actual crime. Essentially waives causation
Mere preparation - D can do a lot that is innocent conduct or specific conduct that is not
actionable, before he reached the point of attempt
In attempt liability, D must be behaving with specific intent to do the harm that does
not occur
o Punishment will be 1/3 – 1/2 of the completed crime act
o It is a completely SEPARATE crime
 D CANNOT be liable for BOTH attempt and the commission of a crime
** Attempt is a serious crime only available if the serious crime does not occur **
HYPO: Ashley shoots Witte and misses because her gun malfunctions. The law is going
to say we have attempt liability as a prima facie separate case to bring. Where we have
flexibility of 1/3 – 1/2, we will use that flexibility to take into account WHY she did not
complete the crime
Rationale for punishing attempt:
 Retribution, deterrence, rehabilitation - what you did was bad, don't want you doing it
again
o Balance the equities
 Policy  CRIME CONTROL
o Once D has reached out of her bubble, we want to punish that because they have
engaged in behavior that shows they are not just somebody with bad thoughts;
they have actually demonstrated and reached out of their bubble and future
victims are endangered
o Protecting potential victims - want to dissuade people from attempting to commit
crimes
 Preclude treating 2 people guilty of “the very same act” of negligence, differently
because of a fortuitous difference in the outcome of these acts
 Gives law enforcement a means to take action before crime is committed
36
TOUGH INTERESTING CRIME
 The law says we know defendants do weird, strange things in their mind. In your bubble,
you can do your own thing (motives, desires, passions, prejudices, etc.)
 There is a moment where D reaches out of her bubble and it will NOT constitute a crime
– it is simply interesting behavior or MAYBE preparation of a crime.
o Somewhere, D moves from mere preparation  actual attempt
 Attempt is an actus reus inquiry. It is trying to draw the line between where D is
engaging in bizarre behavior that is NOT criminal to actual attempt. It is a fine line.
WHEN DOES D’S BEHAVIOR MOVE FROM PREPARATION TO ACTUAL
ATTEMPT?
 There are 4 tests: For our exam purposes, use proximity as majority position and
substantial step as minority, and last act as the smallest minority position
Actus Reus in Attempt Crimes
1. Last Act Test – SMALLEST MINORITY POSITION
o If D has done everything necessary, and the only thing we're waiting for is the
unfurling of the last possible action, then it's attempt liability
 Maximum liberty, minimum security. Only thing preventing it from being
a crime rather than an attempt is luck
 This is old common law test, but may be coming back; Test of choice
until 20th century: coming back in libertarian states (Wyoming, Idaho)
o D will be liable for attempt on the actus reus analysis ONLY if he/she has done
the very final act of his/her actus reus
 We give D every moment possible to withdraw and stop
 D will not be arrested until he has pulled the trigger, lit the match, etc.
o Philosophy: “Protection of society be damned! We want to protect the liberty
interests of the D!” Most protective of D’s liberty
o HYPO: We will not arrest the school bus driver for kidnapping until he has
custody of the children in a way that can no longer be viewed as taking them to
school (the moment he goes past the driveway of the school where he normally
pulls in)
2. Dangerous Proximity Test – MAJORITY TEST
o D moves from mere preparation to attempt – D has to be pretty close to actually
achieving the underlying crime D must be in dangerous proximity of the actual
crime (almost finished, a step away or two from completing crime)
 Dangerously close & proximate // Victim or property is in view
 Object has to be within view/grasp/easily accessible (a step or
two away from being actually seized, harmed, or destroyed)
 NOT interested in how many steps you have taken, but how many steps
are left
 NOT interested in the last act
o More strict than last act test, but still defendant-friendly
37


Last Act Test: person you're trying to rob pulls money back at last second
Proximity Test: person is surrounded, and maybe they even reach for
money
o HYPO: When Rogers is making an elaborate plan to burn down Witte’s house,
the proximity test occurs when Rogers is in Witte’s garage assembling his
materials
o HYPO: Guy is poisoning his wife by sprinkling arsenic on her food every day for
100 days. When does the proximity test go into effect?
 Is 1st day good enough for proximity test? Or is retreat possible so we
charge battery?
 Attempted murder is one thing, but she will not be dead for 100
days. Why don’t we just charge him with multiple counts of
battery? Collecting an indictment might be easier when you have
99 instances of separate battery cases than 1 instance of attempted
homicide
 Would proximity test only allow for prosecutor to charge for attempt on
the 99th sprinkle of arsenic? NO – it would say spring #1-#99 are both
plausible within test
3. Substantial Step Test – MINORITY TEST/HYBRID OF PROX AND EQUIV
o If D takes substantial step to achieve their intent, they are guilty of attempt
liability
 Have to both (i) show intent and (ii) take substantial steps to achieve
that intent
o Middle ground between proximity and equivocality; trying to strike balance in
liberty/security analysis. Focuses on what actor has already done, rather than what
remains to be done
o Allows police to intervene early, esp. if a lot of steps in the crime
o You can use equivocality ONLY when D has taken substantial number of steps so
you can infer what his intent was, as he is proximately close
 Equivocality lives through this test
4. Equivocality Test
o Dying test: It is a bit of a cousin of the “res ipsa loquitur” doctrine  speaks for
itself
o It is obvious what the defendant is intending to do
 We are not so worried about the D doing everything or going close, there
are times when the D’s behavior is CLEAR
o At what point does the evidence speak for itself as to what D is intending; at
what point is D no longer equivocating
 Can you look at the facts and see what D was trying to do?
o We need to combine actus reus and mens rea
 If we can infer what D is intending, we satisfy both elements
o Philosophy: We are trying to protect society
 While this test makes some sense, it becomes very disfavored because IT
LEAVES TOO MUCH TO THE IMAGINATION
 It is a manner of speculation left to the jury and fact-finder
 This is not appropriate and can be deeply unjust
38
o
Attempt liability is pretty easy in an equivocality jurisdiction. Once you've got
someone where you can show some sort of ill intent or bad motive, it's not
difficult to frame facts to make it look like you were trying to do the act
o There is still a line between mere preparation and harm to victim, but it's much
closer to preparation
People v. Rizzo – dangerous proximity test
 Ds want to commit a robbery of a particular person - admit their intent - and are trying to
follow him but can't find him.
 Under dangerous proximity test, they do not have the requisite actus reus for attempted
robbery, because they were not in dangerous proximity of the actual crime of robbery
People v. Miller - equivocality test
 D threatens to kill someone, and later starts walking toward victim with the gun
 Convicted under equivocality test – if you tell someone you're going to kill them and
then find them later and start walking toward them with a gun, it seems like you're going
to try to kill them
Some attempts are made into separate crimes:
 Assault = attempted battery
 Aggravated assault with intent to kill, rape, kidnap, etc.
 Burglary = breaking and entry with intent to commit another felony inside (attempted
felony inside)
 Solicitation = engaging another to do a crime
 Racketeering, conspiracy terrorism = preparing to do a serious crime
See: MPC § 5.01 - Criminal Attempt
Mens Rea in Attempt Crimes
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In almost all jurisdictions, attempt liability requires specific intent to do the
underlying crime
o Look at the usual things - testamentary evidence, and if none is available, impute
from D's conduct
o If we have testimonial evidence, diary entries, etc. then it is a NO-BRAINER
(regardless of what defendant says)
We do not have soft/hard mens rea
o We are just asking if they specifically intended to do those acts which had they
been completed, would have constituted a crime
o You need specific intent (to cause the act OR to cause the harm)
Usually, we are left with stuff that is less clear;
o Typically, we have circumstantial evidence
o “What does the defendant have to intend?”
People v. Gentry
39
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D pours (or spills) gasoline on girlfriend, she gets ignited near stove and is severely
burned, but he tries to put it out
D cannot be guilty of attempted murder, because he did not have a specific intent to kill
Smallwood - man with AIDS told he can't have sex without protection; he rapes a woman
without protection. Can't bring an attempted murder charge b/c we can't say he had
specific intent to murder - at most, he had knowledge, which is not enough in most
jurisdictions
Can't charge someone with attempted lower-degree murder, because there can't be a
specific intent to do a crime with a less-than-purpose mens rea
o Exception: in a growing minority of jurisdictions, if D specifically intends to do
the things that would constitute gross recklessness, he is guilty of an
attempted non-specific intent crime
 Ex. knowing you have a seizure every day at 12 PM, and at 11:55 driving
someplace, having a seizure, and severely injuring someone - can be
charged with attempted second-degree murder
 Ex. You drink 16 beers, go to car, start the car, and are arrested for drunk
driving before you actually drive. Since you specifically intended to do the
acts that would constitute strict liability offense, you can be charged with
attempted drunk driving
Attempt Liability Hypos
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D wants to burn down victim's house. Each day does one more step towards getting
the necessary materials. Drives to victim's house, sets everything up, lights the wick,
runs away. Wick goes out.
o Last act test: when you light wick
o Proximity test: when he's assembled all the necessary materials, when he starts
spreading stuff around at victim's house
o Equivocality test: when you put the stuff in your trunk and drive to your
neighbor's house
D has Molotov cocktail that she brings to class, tosses and runs. Wick goes out.
o Last act test: when you light wick
 Proximity test: when you turn lighter on, or bring matches out
D is a school bus driver who wants to kidnap kids; picks them up and takes unusual
turn. Arrested for attempted kidnapping
o Last Act Test: Passing the school
o Proximity test: Passing the school could be natural, but you need to get to the
highway or something - need to view it as actual custody. Issue here is that
kidnapping and attempted kidnapping often align
D cruises websites to start chatting with 12 y/o. Makes an arrangement to have sex.
Goes to arranged place, arrested by 42 y/o undercover cop
o Proximity test: for statutory rape, tough to draw a proximity line test that isn't
coming in contact with the cop. Kid may never have been there, could still just
buy eggs at 7/11, etc. You could still certainly get him on other crimes
o Equivocality: as soon as you get in the car to go to the meeting
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ACCOMPLICE LIABILITY
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Another situation in which causation is waived - being held liable for a crime that
someone else commits, and you assist with
o Aiding and abetting
Accomplice liability first depends on the actual perpetrator committing a prima facie
crime.
o Perp doesn't have to be convicted yet, BUT if perp was tried and not convicted,
accomplice liability falls apart
o Thus, prosecutors usually go after accomplices first, THEN the perp, to make sure
the accomplice liability case doesn't fall apart with a non-guilty finding of perp
Accomplices can receive anything up to the full punishment for which perp can be
committed
o If perp is later not convicted, it doesn't affect conviction of accomplices
Accomplice liability can be present in attempted crimes as well
Accomplices can be liable, through transferred intent, for any reasonably foreseeable
crimes that the perp does (armed robbery and homicide)
o If there are not reasonably foreseeable crimes that require independent volition of
perp (armed robbery and rape/arson), accomplice is not liable for that
Accomplice Liability - Common Law vs. MPC Terminology
Common Law
MPC
Person who actually commits Principal in first degree: he is the
crime (the "trigger person" or actor (absolute perpetrator of the
absolute perpetrator)
crime)
Defendant
People on scene of crime getaway driver, holds the
victim down, breaks a
window so trigger person can
enter
Principal in second degree: he is
present, aiding, and abetting the fact
to be done. Could be constructive
presence as well (keeps watch or
guard)
Accomplices (now, focus
less on label and more on
what they did)
People not on scene of crime provide information,
weaponry, getaway car, don't
do something when they had
duty to do so. Could be
kingpin
Accessories before the fact: being
Accomplices
absent at the time of the crime
committed, yet procures, counsels, or
commands another to commit the
crime
Person who helps D after
Accessories after the fact
crime by hiding, helping, etc. (nowadays, can be punished up to
full liability): a person, knowing a
felony to have been committed,
receives, relieves, comforts, or
assists the felon
41
N/A - can't lump them in
with accomplice liability.
Hit them with a separate
charge. Not fair to charge
them for crime they had
nothing to do with (e.g.,
obstruction of justice)
STATUTE
 Modern statutes  are the result of the MPC. The older statutes abolish all distinctions
between principals and accessories before the fact and require that ALL be treated as
principals
DOCTRINE OF CONSPIRACY
 A criminal conspiracy is an agreement by two or more persons to commit a crime
 A co-conspirator may be liable in some jurisdictions for the criminal acts of fellow
conspirators even though he did not intend those crimes and might not be responsible
under the principles of accomplice liability
PUNISHMENT
 Under American law, accomplices and principals are guilty of the same crime and
thus subject to the same range of penalties
 American law deals with differences in culpability through sentencing discretion or, in
jurisdictions with sentencing guidelines, through specified reductions in punishment for
those who played only a minor role in the offense
COMMON LAW SYSTEM: Old & New Language
 Common Law  Accessory BEFORE the fact (1/3 LIABILITY)
o MPC  Accomplice (FULL LIABILITY)
o Guy behind the scenes, providing material, info, access; allowing D to do the act
 Common Law  Principle in the 2nd Degree (FULL LIABILITY)
o MPC  Accomplice (FULL LIABILITY)
o Person who is virtually on the scene (telephone, interview, facetime, etc.)
o Sitting right beside the D (principal in the 1st degree) doing the crime
 Common Law  Principle in 1st Degree (Actual Perpetrator)
o MPC  Defendant (Actual Perpetrator)
o The person who committed the actual crime
 Common Law  Accessory AFTER the fact (1/3 LIABILITY)
o MPC  X (OBSTRUCTION OF JUSTICE)
o Crime is done; D has finished the act, and something goes on after to aid and abet
o MPC does not want accessories AFTER the fact; instead, let’s just talk about
separate crimes
What Accomplice Liability REQUIRES
Actual Crime
 Although it does NOT have to rise to an actual conviction
 Dead body, rape victim, embezzled funds, kidnapped child, etc.
D’s Prima Facie Case
42

The Defendant on which we are hanging the accomplice liability theory on HAS to
perform a prima facie case
 If you do not have a prima facie crime, you do not have an accomplice liability crime
o ** IMPORTANT **: You do not necessarily have to prosecute and convict the
Defendant (pleads guilty, lesser charge, skillful counsel, case gets thrown out,
etc.)
Actus Reus
 Voluntary act or culpable omission (if there is a duty), including giving orders, and even
cheering or encouraging.
 Actions/omissions that aid and abet the commission of the completed crime
o Have to do with requisite mens rea of specific intent OR purpose
 Example: Ashley holding Witte down while Rohini shoots him
 Example: Person providing a match to burn the ship down
 Example: Person giving info to Cunningham about coins in the meter
 Example: Failure to act when you have a duty
o Security guard that says, “Come in!” to the armed robbers or gets scared when he
sees them and runs away
o Ambulance driver refusing to drive someone to hospital
Mens Rea
 Actus reus must be accompanied by specific intent mens rea to aid and abet
commission of crime
 Specific intent or purpose
o Suspicious or worrying is NOT enough
 VERY HIGH mens rea requirement
 Accomplice has to know defendant is performing the crime and he/she is helping them
o Handing someone a gun who goes on to commit homicide = not an accomplice
o Perp says "I wanna kill the victim" and you hand them a gun = you're an
accomplice
o Perp says "I wanna rob a bank, where is it?" and you tell them = close case. That's
public information, but if you could prove that you told them with intent to help
them rob bank, you're an accomplice
o Giving someone a match to burn a house down = maybe accomplice, but gravity
of your act would be weighed into punishment you receive. Gravity weighs
into punishment, but not whether it qualifies as accomplice liability
State v. Ward
 Under common law, a person can be an accessory before the fact to second-degree
murder.
State v. Hoselton
 A defendant is not a principal in the second degree unless he participates in the crime
while sharing the criminal intent of the principal in the first degree.
43
WHAT DO WE PUNISH I: CRIMES AGAINST THE PERSON
Homicide
Introduction

General definition, no matter the classification: an unlawful killing of another living
human being
1. Unlawful
o There ARE lawful killings: by necessity, self-defense or defense of others, cops,
military, licensed security personnel (last 3 – under the guidance of internal rules
and procedures)
2. Killing
o When must V die?
 Traditional rule: victim must die a year and a day from D's last act for D
to be charged with homicide. If they die after that, D can only be charged
with attempted homicide or aggravated battery
 No SOL for homicide - action can be brought whenever, as long as
victim died w/in year and a day
 21st Century: We have technology that can keep people alive for a long
time
 3 YEAR AND 1 DAY RULE
 When a person is in a state that he/she is no longer really going to
be able to recover and live on their own (even with modest brain
function and living without a respirator), generally within 2 – 2 ½
years, the healthcare provider will say it is time to pull the plug
o When D puts the victim on the bed, medical professionals
will pull the plug within 2 – 2 ½ years, D will be brought
up on charges IF victim dies within 3 years and 1 day
o When is V dead?
 Common law person = dead when they stop breathing
 21st Century: Now we have respirators and keep people alive by
substituting their breathing
 If the victim is put on life support as a result of d’s conduct, are they dead?
o The law says we can do better with medical technology and we look at:
  BRAIN FUNCTION: When a person is dead, they are dead even IF
their body is being supported by respirators, eating/feeding tubes
 Brain Dead Rule  Super majority rule
 Victim is dead when there is no neurological activity (as
determined by reflex, eye test, medical instruments, etc. - even if
they're breathing on their own, or with machine)
 Breathing Rule  Some jurisdictions hold onto this common law rule
44
3. Living human being
o Common law: homicide is directed towards the killing of a person
 Killing of a goat is for local custom to work out
o When is a person living? Instances like fetuses, newborn with umbilical cord,
someone on life support, etc.
 We have drawn distinctions between feticide, infanticide. After this  the
person becomes a human
 Increasingly, jurisdictions have said we do not want to go there
 The mother & healthcare professionals have control over the being
 When it is a licensed, authorized abortion, it is NOT homicide
 Criminal law talks about the “involuntary, nonconsensual intrusion” on
another human being
 Jurisdictions have once said being in the womb becomes a human
(as it shows brain function); the law says at this point, the killing of
that being in the womb constitutes homicide
Examples:
 Causing a woman to lose child in the womb that has reached capability of having
independent life (somewhere in second trimester) = homicide
 Women/doctor exercising Constitutional right to abortion = not homicide
 If being in the womb has no human capacity, question is left to the mother - if she
considers it to be a human, the involuntary killing of such = homicide
 Pulling the plug on a person who is brain dead on a respirator = killing, whether or not it
is lawful/justified is another manner
 Shooting someone already not without knowing it = no homicide or attempted homicide,
b/c of factual impossibility - best would be desecration of a corpse
 Animals don’t count, nor are reincarnation theories credited
What happens when the thing that the D kills is NOT viewed as a living person? D has
killed someone that is already dead/brain dead, etc.
 Have you killed that person? NO
o So, what are you guilty of? In the past, it was desecrating a corpse (slap on the
wrist punishment)
 Increasingly today, we are worried about a number of different factors:
o Actual harm threatened; dangers to society; D who shown proclivity of engaging
in dangerous behavior towards a body
o You can be charged with attempt when you shoot a dead corpse or kill a person
who was brain dead  ATTEMPTED HOMICIDE (could even be attempted
first degree homicide, which carries a larger sentence)
See: MPC §210 - Criminal Homicide
Definitions.
In Articles 210-213, unless a different meaning plainly is required:
1. "human being" means a person who has been born and is alive;
45
2. "bodily injury" means physical pain, illness or any impairment of physical condition;
3. "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;
4. "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.
210.1. Criminal Homicide.
1. A person is guilty of criminal homicide if he purposely, knowingly, recklessly or
negligently causes the death of anotherhuman being.
2. Criminal homicide is murder, manslaughter or negligent homicide.
210.2. Murder.
1. Except as provided in Section 210.3(1)(b), criminal homicide constitutes murder when:
a. it is committed purposely or knowingly; or
b. 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.
2. Murder is a felony of the first degree
210.3. Manslaughter.
1. 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.
2. Manslaughter is a felony of the second degree.
210.4. Negligent Homicide.
1. Criminal homicide constitutes negligent homicide when it is committed negligently.
2. Negligent homicide is a felony of the third degree.
Technicalities of Homicide:
46



Murder: unlawful killing with malice aforethought
Manslaughter: unlawful killing without malice aforethought
“Malice Aforethought”: highly technical term of art
o Comprehensive name for a number of different mental attitudes which have been
variously defined at different stages in the development of the law, the presence
of any of which in the accused has been held by the courts to render a homicide
particularly heinous and therefore to make it murder
Levels of Homicide/Homicide Categories
 Murder 1/first degree murder
o Most serious, with most serious punishment. Could be as bad as execution or life
sentence. You won't see your client again if they get convicted
 Murder 2/second degree murder
o Most jurisdictions go from 12-25 years depending on context
 In some jurisdictions - third degree murder
 Voluntary manslaughter
 Involuntary manslaughter
MURDER
First-Degree
20+ years including execution
Second-Degree
12-20 years
(Sometimes Third-Degree)
10-12 years (depending on the jurisdiction)
Manslaughter (less serious homicide)
Voluntary (i.e., 1st degree)
10-15 years
Involuntary (i.e., 2nd degree)
3-12 years

Specialty homicides → 1-18 years
o Examples: vehicular; medical; police/military excess; aiding suicide; killing
embryos; others
 Vehicular → negligent operation of a vehicle
 Medical → special category of homicide that attaches to medical
professions when they do something negligent/intentional
 Police/military → when cops and military go rogue (i.e., racially driven
violence); think about the unique position the cops are in and making sure
they don’t abuse their authority
 Assisted suicide → Dr. Kevorkian - helping someone kill themself; special
kind of murder/manslaughter
47
First-Degree Murder





Murder is about intentional killings
Legislatures hands the prosecutor “trump cards” and use this for plea bargaining
o Helping with law enforcement and crime control
o Not leaving it to the control of judges/juries
o There is NO choice but to declare them “first degree murderers” unless you do
plea bargaining
 Super imposed on a prima facie case
 Mens rea is a general intent (it is assumed; we are just imputing 1st degree)
(1) An intentional killing with certain types of trump cards gets to first degree
automatically (these will vary by jurisdiction, but the usual bunch below):
o Instrumentalities: use of techniques and instruments bumps you to 1-D
 Poison
 Weapons of mass destruction
 Bullets that penetrate metal
 Explosives (sometimes)
o Method: prima facie case has to be met
 Starvation
 Torture
 Lying in wait (drive-by shooting)
 Mayhem to body/mutilation
o Victim:
 Vs are in a protected class:
 Cops, judges, elected officials, law enforcement
 Vs are unusually vulnerable/incapable of self-defense
 Baby, old person, disabled person (mentally or physically
handicapped)
o Recidivism/nature of D (in some jurisdictions)
 D has a record (past history of serious felonies)
 Leader of a gang/drug cartel/etc., that has violent history, and
YOU kill (regardless of the nature of the killing)
 D is a prisoner
 On parole; in prison
 Intentionally killing a person when you have already killed (within a
prescribed time interval, not over a lifetime)
(2) Otherwise, first degree murder requires not only an intentional killing, but intentional
killing with premeditation, deliberation, and willfulness
o Essentially specific intent/purpose
o Can be established through testimony/documentation, or…
o Need prior consideration of action beforehand (premeditation), form the intent,
think about how you're going to do it (deliberate), then do it
o No prescribed amount of time for these steps. No time is too short
(3) Felony-murder can be 1st degree murder if statute lists it as such
48
In jurisdictions without trump cards, it's very hard to get first degree murder charge. Generally
need testimonial evidence or a professional killing (hitman)
 Circumstantial inferencing to get to first degree murder is very hard
State v. Guthrie
 For PDW first degree murder, killing must be done after a period of time for prior
consideration
o Any interval of time between forming intent to kill and execution of intent, if the
interval is sufficient for the accused to be fully conscious of what he intended, is
sufficient to support conviction for first degree murder
o No time is too short to think about and plan a killing

Lesser included offense doctrine - D may be convicted of lesser offense than charged
(and is entitled to an instruction on such), but can't be convicted of a more serious degree
or offense than that charged
Midgett v. State
 Repeated child abuse that resulted in death was not enough to show premeditation,
deliberation, and willfulness required for first degree murder (instead, second degree
murder)
o Evidence only supports that D meant to further abuse son OR if intent was
developed, it was developed in drunken rage while beating child. Neither supports
finding of premeditation or deliberation




Some states make aggravated battery of a child that results in death a first-degree murder
HYPO: Ashley brings in coffee with nutmeg. Rohini is highly allergic to it. Ashley has
no idea that Rohini is allergic. There is NO evidence that it is dangerous and no evidence
that Ashley is subjectively aware that it would kill Rohini
HYPO: If Ashley knew that Rohini was highly allergic and brought it anyway, there is a
higher degree of harm and higher awareness
HYPO: If Ashley worked for the CDC and brought in a canteen of Ebola virus. This is so
objectively dangerous that the very act of doing it gets you into GROSS
RECKLESSNESS, even if you are not highly aware that someone will be hurt
o In the calculus of gross recklessness, try to factor in the D’s subjective awareness
in courting the risk of harm that they cause to the victim
o Gross negligence: D is aware of the negligence OR the act is viewed as
objectionably dangerous and D courts the risk
Second Degree Murder
1.
In murder mens rea, without trump card, second degree = knowledge (still intent intentional action with substantial certainty that killing could result) and is generally
default position.
o Intentional killing that doesn't hit premeditated/deliberate/willful standard,
or have trump card
49

To get to first degree, you either need (i) pure intent to kill or (ii) intent to
kill with trump card
o Another approach: gross recklessness or depraved heart killing - a grossly
reckless killing with a wanton disregard for human life = second degree murder
 Halfway between recklessness and knowledge
 In gross negligence we measure the objective risk (probability of death)
against the D's subjective awareness of the risk to determine if there's
enough for second degree murder
 E.g., accidentally unleashing Ebola virus on entire classroom = not
an intentional killing, but high enough objective factor (probability
of death) paired with some, but minimal subjective awareness of
the risk, is enough to get to 2DM
 In Malone, there was a decent objective risk (shooting a potentially
loaded gun at someone), and a decent subjective awareness (he
fired the gun on purpose) to get to 2DM
o Felony-murder can be 2DM if statute lists it as such
Commonwealth v. Malone
 D plays "Russian Poker" with victim; chamber is loaded although he is not aware,
convicted of 2DM for "depraved heart killing"
 When an individual commits an act of gross recklessness, for which he could
reasonably anticipate that death to another is likely to result, he exhibits that
cruelty, recklessness of consequences, and a mind regardless of social duty.
o D committed an act in reckless and wanton disregard of consequences
 No motive does not matter. Motive is relevant, but NEVER necessary
 Although no intent to kill, pulling trigger next to victim three times is an intentional act
with reckless and wanton disregard for human life
Felony-Murder






Another theory of proving first or second-degree murder
Felony-murder: If D has mens rea for a felony, and a death occurs in the path of that
felony (and there is no mens rea for murder - at best only negligence/recklessness), D is
liable for both
o All prosecutor has to prove is a prima facie case for the felony
Every jurisdiction stipulates which felonies are part of felony-murder theory
o Some jurisdictions mentions specific felonies which get to first degree murder
o Some say that all felony murders only get you to second degree murder
o Some say felony murder only gets you to third degree murder (5-7 years)
Some jurisdictions say this list is exclusive; others allow for judge-made extensions,
though usually at a lower degree of murder
Felony-murder requires a specific intent mens rea to do the felony. The mens rea of
the felony translates to the mens rea of the murder per the statute
Controversial - a lot of states trying to cut it back
50
o Policy argument for: deterrence; this is part of the risk of committing a
felony
o Policy argument against: this is an accident - you can't deter an accident;
opens the door to punish a lot of innocent conduct; creates strict liability
murder
Requirements for Felony-Murder
1. Felony has to be inherently dangerous to life in the abstract/in general (not in the
individual case)
o Almost always count in every jurisdiction: arson, rape, kidnapping, armed
robbery, burglary, carjacking
 Others might count too: poisoning
o Judicial embroidery of the legislative list – has the license to say a felony is
inherently dangerous even if it isn’t on the list
People v. Howard
 Driving with willful or wanton disregard for safety of others is NOT an inherently
dangerous felony for purposes of F-M, because the felony in the abstract is not inherently
dangerous (can be committed w/o creating substantial risk someone will be killed)
 Also, this could have been brought as 2DM depraved heart killing or other traditional
murder theory
2. Murder must occur in course of committing felony
o Murder has to be part of the scene. Must be a nexus, related in time, cause, or
foreseeability
 Crime scene of space and time and cause
o Generally focused on whether the death is part of the causal sphere around the
felony - proximate cause, rather than just something that happens during felony
 E.g., holding up a store - you point your gun at them and they die of heart
attack = in the course of felony
 Speeding away from a theft and hit someone many miles away, or a cop
following you hits someone = in the course of felony
 Storeowner dies a day later of heart attack from fright, thinking about
hold-up = NOT in course of felony
o Victim CAN be a 3rd party – it is part of the scene and it counts
 It can also be the chase afterwards
o Victim of felony do not have to be the same party; you can also have a different
predictable agent; it just has to be a killing that is related
o Third party does the killing: Your getaway driver for bank robbery kills
somebody in protection = probably in course of felony; if he rapes someone,
probably not.
 Only liable if murder is in furtherance of the felony
State v. Sophophone
 Committing armed burglary. Police see them leaving, pursue them. They get D, arrested,
put in car. Police tells victim to lay down, victim shoots at police, cop shoots and kills
him.
51


D not guilty under F-M because he was in custody at the time and couldn't play any role
in this. Felony is over; he had no further criminal responsibility
Two ways to think about F-M scene ending:
o Ends when the "scene" of the felony ends, e.g., being in custody
o Ends when a completely unrelated offense is performed - completely
independent action leading to death
3. Independence
o D must have intended to commit felony, NOT to commit murder
o If you can prove felony and murder charges separately (under 1DM, 2DM, or
Malone depraved heart theory), there is no felony murder
 E.g., Midgett would not have been felony murder, because you could get a
Malone-type depraved heart 2DM charge for repeated sets of abuse
against the child
o Many aggravated battery cases don’t allow for F-M theories of murder
o F/M is tool of last resort, rather than first resort
 If you can satisfy the Malone criteria (wanton disregard for human life),
you should do it instead of F-M
4. D’s conduct has to have an MR Independent of the MR of the homicide
o Specifically intend to do the felony
o Betray no intent to do the murder
o V still dies
 7/11 robbery example
 D does not mean to kill V; D means to commit a different felony and ends
up killing V
o Independence requirement – classic felony murder requirement
o Intent to commit a felony merging with intent to commit a homicide.
 Midgett – wasn’t planning to kill V but was torturing him/hurting him;
question became whether they could make out a second-degree murder
case
o Felonious child abuse w/ no intent to kill? Felony murder theory would say
he’s committing this repeated felony of child-abuse w/ no intent to kill 
perfect case of FM
o Flip side → is he actually intending to kill him even if it’s only by gross
recklessness?
People v. Smith
 Child abuse leading to death doesn’t work for F-M, because it could properly have been a
depraved heart 2DM killing. Felony here is an integral part of homicide, no independent
felonious purpose
 F-M doesn't work when it is based upon a felony which is an integral part of the
homicide (esp. underlying felony that has as its principal purpose an assault on the
person of the victim) UNLESS underlying offense was committed with "independent
felonious purpose"
 Could we make out a Malone-type case here?
o Gross wanton disregard for human life
o This is a small child, two adults beating on her
52
o MR of felony/felonious child abuse here is also the MR of homicide itself

Prevailing views concerning applicability of felony murder doctrine where killing has
been caused by acts of a third party:
o Agency approach: Felony-murder doctrine doesn’t apply if person who directly
causes the death is a non-felon (majority approach)
o Proximate causation approach: Felon may be held responsible under F/M rule
for killing committed by non-felon IF felon set in motion actions which resulted
in victim's death
Voluntary Manslaughter



Halfway step between first-degree murder and insanity - D has completely lost his mind
and has no capacity to comprehend his conduct
o Partially impaired reason, heat of passion, extreme emotional disturbance
VM is a partial affirmative defense - requires proof by defense that D is not guilty of
murder; P will likely not pursue this as a charge
o While it does not render that person insane (no liability), it does mitigate the
conduct so that D is put into an intermediate category
o Realty is that often times, voluntary manslaughter is a plea-bargaining chip
o D may well be liable for 1st degree murder, but prosecutor and defense
(independent of peculiar doctrinal steps) agree on a plea bargain
 BURDEN?  DEFENDANT
 It is on the D to prove the category of voluntary manslaughter as a partial
defense to murder charges; 1st or 2nd degree murder//Voluntary
manslaughter//Insanity
Minimum of 5–6-year punishment, max of 19-20. Still a serious felony, but less serious
than murder
Common Law (Majority) Approach to Voluntary Manslaughter
1. D killed in heat of passion (partially impaired reason)
2. With adequate external provocation,
o Catching your spouse (incl. same-sex, fiancé; in some jurisdictions long-standing
lover) in a sexual act (vaginal, oral, anal).
o Response to extreme assault and battery upon D, spouse, child, close relative
o Mutual combat that quickly escalates - provoked by some sort of combat involving
physical strikes (e.g., some sort of choreographed physical conduct that escalates, and
you overreact)
o Response to illegal arrest, kidnapping false imprisonment
o Some jurisdictions - response to aggressively harassing someone for sex, to the point
where you feel the need to react with mortal force
o Majority rule: Mere words (or pictures), however offensive, don't count as
adequate external provocation
o Some jurisdictions say that graphic evidence is sufficient if it's verbal and video
together
53
o
Small, but growing minority - too mechanical. There are other possible reasons
besides the classic ones; just leave it to the jury as to whether or not there was
adequate provocation
3. Had no cooling off time
o Cannot have time to think again while NOT under heat of passion. Must be part of
one scene/reaction - acting reflexively
o Generally: 5 minutes of cooling time within which a reasonable person would have
cooled = no VM
o Longer term consequences to provocation do not qualify as voluntarily manslaughter
4. Kills as a result of that heat of passion
o Must be killing the thing that caused the harm, or something clearly within the
relationship
o Man walks in on wife shooting porno:
 Kills wife, partner, cameraman - all VM
 Kills porn-bus-driver outside - not VM
o Man thrown out of bar by bartender and bouncer, shoots bouncer's twin brother
accidentally
 This is VM - the adequate provocation is reasonably transferred over
 Bartender too? VM.
 Guy clapping for him getting thrown out? Not VM. Mere words are
not adequate provocation. 1/2-degree murder.
Examples of adequate provocation:
 Catching spouse cheating on you (HAS to be spouse recognized by the state; NOT
long-standing lovers; 5 states recognize common law marriage)
 Catching spouse IN THE ACT
o Not partly clothed or after the fact
o Actual sex in the act (oral, anal sex okay)
 Words are NEVER enough
o Some jurisdictions will allow videos to suffice
 When a person touches you
o People respond aggressively when they are touched without permission
Girouard v. State - common law, majority approach to VM
 Husband who kills wife after severe, extended personal insults is guilty of 2DM rather
than VM, because words alone are not adequate external provocation.
 Sometimes words alone can be enough if accompanied by "conduct indicating present
intention and ability to cause D bodily harm," but light physical attacks were not enough
to get to that level
Reforms (not new standard, just malleability):
 Adequate external provocation = a question of fact to go to jury, rather than courts
 Consider passage of time instead of cooling time, and know that passage of time can
cool, but it can also escalate
MPC (Minority) Approach to Voluntary Manslaughter
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


Puts aside mechanical test and recognizes the quality subjectively, and that it can have
any number of explanations.
Subjective state of extreme emotional disturbance
For which there is a rational cause…
o Must be something that makes jury understand why disturbance is there
And for which there is a rational expression
o Is expression manifested at what caused D to be in the state of emotional disturbance?
People v. Casassa - minority MPC approach
 D who killed girl who rejected him had subjective extreme emotional disturbance and a
rational expression (killing her, rather than killing an unrelated woman, for instance), but
there is not a rational cause - court not convinced that situation/cause (three months of
causal dating and a jilt) is adequate to cause this level of emotional disturbance. So no
VM under MPC
Involuntary Manslaughter
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Halfway between second degree Malone/depraved heart killing, and an accident - D
hasn't been grossly reckless, but he has betrayed gross negligence
Also, the basement where we put crimes like:
o Vehicular homicide - you drive your car in the wrong way, and you hit someone
 When you drive a vehicle and you kill someone, this a perfect case of
manslaughter. It is the fact that you operated the vehicle with negligence
o Assisting or aiding/abetting someone in suicide, or assisting in euthanasia
o Healthcare professional's malpractice
 It is not the nature of the instrument that is at issue (which is dangerous); it is
the nature of the procedure
 The body is being traumatized (by surgery or omissions of care) and the party
negligently does something in the course of that care or NOT delivering that
care
 Example: Doctor casually disregards caring for wound properly
Has a lower punishment than voluntary manslaughter. Softest and least punished version
of homicide
o E.g., pulling the trigger on a gun you don't think is loaded at someone's toe, but the
person is a hemophiliac and dies
This can be evaluated in two ways:
1. Weighing objective probability of harm and subjective awareness, like in
Malone killings, and falling in a threshold between accident and second-degree
murder
2. Purely through language - gross negligence
 Some jurisdictions allow a heavier IVM with reckless behavior vs. grossly
negligent behavior
55
People v. Hall
 A ski instructor goes excessively fast down a difficult slope on purpose; collides with
victim, who dies. Guilty of IVM
 He's a ski instructor. He KNOWS (subjectively) what the risks of his actions are. And
this is a big risk (objectively) - not just skiing normally, but skiing recklessly down a fast
slope
 Factors to be considered in IVM:
o Substantial risk of death
o Whether risk was justified
o Whether conduct was gross deviation from standard of care
o Whether D consciously disregarded risk

Policy Concerns for Involuntary Manslaughter: A lot of people do not like putting
people away just for being negligent. In the dialectic of crime control versus personal
liberty and autonomy, the question comes up: can you really deter clumsiness?
o We are all a little bit negligent. The worry is that we if have plain negligence for
involuntary manslaughter, this goes too far  why we have 2 types of involuntary
manslaughter tests
Assault and Battery

Emerged as a criminalization of the concept that we want to protect the bubble around a
person's body
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

"Assault and battery" isn't a thing - Assault, when it results in touching, folds into
battery
o "Assault and battery" is just battery. Assault is an attempt crime.
At the bottom of the food chain of gravity of crimes against person. Low-level offenses,
often low-level felonies or misdemeanors (5-10 years, at max, generally)
Battery
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Battery = nonconsensual, harmful touching of the victim's body
Nonconsensual
o Consent can be based on tacit agreement, custom, permission granted/gained.
Sometimes built into the very nature of the interaction.
 E.g., if you go dancing, or play a sport - consensual touching
 Getting onto a MARTA at rush hour - reasonable person expectation of some
touching
 In battery, there is no express permission, custom, or reasonable expectation to
be touched, but D touches victim anyway
Harmful touching
o Default: requires that victim's body is harmed. Not just a touching - actually harming
someone's body via a nonconsensual touch (cut, bruise, gash, removal of limb,
gouging of eye, etc.).
o Something that the body manifests as being harmed; something a reasonable
person can understand as something that hurts
Exceptions:
 Some people have bodies that are exceptionally vulnerable - e.g., just touching someone
with a third-degree burn could be battery
 Some people have conditions where they don't want to be touched. If D knows of that
condition, the very touching can be battery, even if it doesn't leave a painful mark
 Certain kind of victims that you can't touch at all (by virtue of statute, rule, etc.)
o E.g., President, Dalai Lama (status), or touching someone else's baby without
permission (unusually vulnerable), or a person sleeping (can't give consent unless there's a reason, medical, etc.)
 There are some areas where just touching someone can be battery
o E.g., sexual battery - merely touching someone's privates, or forcing them to
touch your privates, can be battery
Degree of Severity
 Method: the method, infliction, consequences, and we can take that into account
 Permanent v. Temporary Injury: when the damage is more severe that will be taken
into account in sentencing
 Nature of the victim: if you cut off the finger of a pianist; destroy LeBron James’s knee
 Mens Rea: it is on a sliding scale that can be raised or lowered depending on whether the
act/omission was purposeful or negligence
 Legislative Cards: nature of instrument, context, special knowledge, victim’s
vulnerability
o Create different layers of batteries
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Aggravated Battery
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Generic term for more offensive batteries: aggravated battery
Law aggregates depending on…
o Degree of harm to victim (amount of pain, nature of pain, repeated, permanence,
etc.)
o Repeated acts (e.g. punching someone five times generally = one action of
battery, but we make it aggravating or gross)
 Five punches might be aggravated battery, three punches less aggravated,
one punch normal battery
Use of deadly weapons
o Can batter by any sorts of means - hands, cars, peanuts, having your dog not on a
leash, Ebola, etc.
o The more dangerous the instrument, the more aggravated
State of mind (mens rea)
Some jurisdictions have super-aggravants - e.g., massive torture (esp. over time,
psychological), mayhem (chopping up body) - more popular in response to terrorism
As battery becomes more and more aggravated, it can fold into attempted homicide,
attempted rape, attempted kidnapping, etc.
Battery - Actus Reus


Most cases merely require voluntary act, but omissions/failures to act can constitute
battery as well, especially if D creates the peril
Can be caused by D, an instrument, or an agent
o If I know someone has a deathly peanut allergy, and I leave a peanut in front of
them, knowing it will harm her - the failure to take the peanut away, can
constitute by omission a battery or assault
 Leaving a dangerous thing that victim inflicts on self can be battery
(with potential intervening causation, reasonable foreseeability limits)
o Leaving a loaded gun lying around a nursery, kid shoots another kid - the kid isn't
liable, it's the person who left the gun
o Leaving a dangerous dog untethered in a park, leaving pool without a cover,
leaving a huge hole in the middle of the ground - failure to prevent a harm that
you have created can constitute battery
Battery - Mens Rea
 Usual mens rea categories, with MPC/common law distinguishers
 The state of mind can be another aggravant in terms of seriousness/punishment of
crime
Assault
1. Essentially attempted battery - attempted nonconsensual, harmful touching of D's body
(through act or omission)
2. Attempted other felony = assault with intent to: rob, kidnap, rape, kill, kill President, etc.
o As it is an attempt crime, you must specifically intend to do the harm to have
the requisite mens rea for assault
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
E.g., leaving peanut out in front of allergic person recklessly, but no harm
is caused, is not assault
Victim must fear imminent harm (battery, or other felony) against body or property
 Does NOT include physical contact with the victim. Classified as either “an attempt at
battery” OR “an intentional frightening of another person”
 Must know of harm, and victim herself (NOT third person or reasonable party)
must demonstrate that she feared harm to her body
o E.g., a tiny baby saying "I'm gonna hit you" and swings her fist at you - no
assault.
 Exception: if the victim is incapable of knowing the fear, a third-party guardian
knowing, and fearing is good enough
o E.g., baby, comatose person, sleeping person
o Guardian could be mother, babysitter, etc., or a person who voluntarily assumed
care
 Context matters when evaluating fear (person coming up to you at 3 AM in a back
alley vs. 2 PM with other people there)
 Fear is subjective: If victim is not afraid even though average reasonable person would
be, there's no assault. There's no attempted assault. The fear is the harm necessary (fear
of being harmed, not the fear of being touched - unless one of the unusual parties we
mentioned before is involved)
o If the victim is afraid even though a reasonable person would NOT be,
there's assault
 If we have evidence of what D was intending and attempting to do, but did NOT
complete that underlying crime  it becomes assault with intent to _____ (insert
crime)
Assault – Aggravants
 Deadly weapon
 Harm to victim
 Specifically vulnerable victim
Conditional Assault



Person is induced to do something by threat of harm to victim, or victim's loved
ones, and threat is palpable - person felt threatened, and did something as a
consequence of that
Even if D has NO intent necessarily to do what they say they are going to do, it can still
be a conditional assault
o The crime is conditioned on the victim complying with D’s wishes
o Example: “Do that again and I am going to shoot you, kidnap your kid, kill your
spouse, etc.”
o Would a reasonable average person have fear that this would occur?
The harm is not that you're fearing battery, it's that you're doing something you otherwise
wouldn't do
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
Someone trying to sell you cookies, and you say "get off my property or I'll shoot you"
o If you say that and then shoot in the air, THEN that becomes an assault
o They may not necessarily be fearing harm to their body, but they nonetheless do
something that they don't want to do because of the threat
o If you threaten the party in the future - "do this or I'll blow you up next week" –
extortion
o If you threaten the party and grab property - robbery
Rarely gets prosecuted, usually punishment = slap on the wrist

Words that harm would be in a unique category - defamation, slander, libel, etc.
MPC 211.1-2
211.1. Assault.
1. Simple Assault. A person is guilty of assault if he:
a. attempts to cause or purposely, knowingly or recklessly causesbodily injury to
another; or
b. negligently causes bodily injury to another with a deadly weapon; or
c. attempts by physical menace to put another in fear of imminent serious bodily
injury.
Simple assault is a misdemeanor unless committed in a fight or scuffle entered into by mutual
consent, in which case it is a petty misdemeanor.
2. Aggravated Assault. A person is guilty of aggravated assault if he:
a. attempts to cause serious bodily injury to another, or causes such injury
purposely, knowingly or recklessly under circumstances manifesting extreme
indifference to the value of human life; or
b. attempts to cause or purposely or knowingly causes bodily injury to another with
a deadly weapon.
Aggravated assault under paragraph (a) is a felony of the second degree; aggravated assault
under paragraph (b) is a felony of the third degree.
211.2. Recklessly Endangering Another Person.
A person commits a misdemeanor if he recklessly engages in conduct which places or may place
another person in danger of death or serious bodily injury. Recklessness and danger shall be
presumed where a person knowingly points a firearm at or in the direction of another, whether or
not the actor believed the firearm to be loaded.
WHAT DO WE PUNISH II: CRIMES AGAINST PROPERTY
Two main distinctions of property crimes:
 Harm crimes - D harms a person's property or property interest
 Deprivation crimes - D does something that deprives victim of their property interest
60
o
Common law has many distinctions, but many jurisdictions dislike this and just
call it "theft”
Basic Terms
 Real Property—land, dirt, and anything naturally growing on it
 Improved Real Property—any improvement on that property which could be food that
is grown, a structure erected
 Personal Property—moveable, personally, anything that moves, articles, your laptop,
your cup, your car, your boat
o They can be attached
 Fixtures—personal property that is attached (picture frame on the wall)
 Intangible: intangible value that the tangible gives you which is key
o Definition: representation of value
 Tickets, stocks, bonds, checks, dollar bill, car keys
Crimes that Harm Victim’s Property
ARSON


Arson = the burning of somebody else's real property and improvements
Harm = partial or total destruction of the real property
Arson - Actus Reus
 Must have a fire disruption - can be caused by doing anything to start something alight.
The more obvious fire-starting instrument, the easier to get to arson, but anything that can
cause fire and cause harm qualifies
 Basic actus reus rules apply here. Can be by action, or by omission when there's a
duty
o Less worried about how you start it than about mens rea
Arson - Mens Rea
 Usual common law and MPC scales; same exercise in imputing mens rea
o Negligent arson = negligently leaving stove burning, getting distracted, and fire
burns down complex
o Reckless arson - searing a steak with a high flame when you don't have the
structure to contain it, it burns house down
o Knowing arson - I know my stove is defective and could start a fire, but I need a
turkey. Stove blows up and burns down
o Purposeful arson - I hate this place. Let me burn it down.
Arson - Trump Cards/Aggravants
 General intent vs. specific intent mens rea
 Harm to victim/gravity (complete vs. partial destruction)
o Actually touching neighbors home or burning property that transfer to second
house (transferred intent) less serious
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o Complete destruction worse than partial destruction
 Example: burning down a raw field is less than burning down a field that
is cultivated
Burning down regularly occupied building (a place for humans to be, even if they're
not there at the moment - house, mall, offices, etc.) vs. unoccupied building (a place
where people aren't usually - empty warehouse, shop after working hours)
o Empty house, is always by definition, is an occupied structure
o Full warehouse = occupied structure
o Abandoned warehouse = unoccupied structure
 Example: property that is empty v. property that is a place where people
are meant to be (1million dollar house/restaurant/shop more serious than
1million warehouse or empty factory)
Value
o Burning down mansion vs. house
 Example: burning down a thousand-dollar cyclols is far less serious than
burning down a 30k barn
Motivation
o If motivation isn't just to burn, but also to disrupt (e.g., trying to collect insurance
proceeds, trying to intimidate someone, distract someone, destroy a business or
security interest)
 Example: worse mens rea if you are burning for insurance fraud
 Example: worse when you want to derail or distract someone, and you
burn down the house of a star athlete before their big game
Direct Destruction (torching house directly vs. burning neighboring property that
spreads – transferred intent)
These don't automatically get you to first degree, but they can help
Not always included in statute
Doctrinal Elements
 Empty warehouse v. active factory
 Occupied v. unoccupied
 Able to be occupied v unable to be occupied
 Houses v. stores
 Multiple occupants v. less occupants
 Night v. day
 People there v. people not there
CRIMINAL MISCHIEF
(MPC 220.3)
1. When a person uses fire or non-fire means to destroy or damage personalty,
intangibles, or fixtures, OR
2. All non-fire destruction of real/improved property
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o
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Doing something without fire that destroys real property, its improvements,
personal property, and its fixture
o Destroying someone’s stuff
o Personal property that is burned is destruction
o Real property that is burned is Arson
o Tangible OR intangible
 Example: taking a tire, putting a knife in someone’s radiator
General Category: any moveable that gets destroyed by the defendant is an eligible case
of criminal mischief
Prima Facie Eligibility: it can be temporary, permanent, partial, total, fixable, unfixable
OMNIBUS: any personal, moveable property interest is an eligible case for criminal
mischief
Degree: the more fixable the damage the lower the offense
Examples:
o Smashing someone’s car, burning your textbook, putting an unbreakable
password on someone’s computer, introducing a virus to someone’s computer
Harm = permanent or partial destruction of the property
o Same trump cards, actus rea, mens rea rules as arson
o Can include stealing passwords and other virtual intangibles, as well as
introducing a virus onto a computer, putting an unbreakable password on a
computer, jamming your internet signal by illegal means
o Permanent deprivation of property might qualify as destruction and thus
criminal mischief, but generally deprivation = theft crime
o If you burned down a house AND all personalty inside it, criminal mischief
charge would be absorbed into an aggravated arson charge
o If you burned furniture inside a house but house never gets touched, it's probably
attempted arson (w/r/t house) and criminal mischief (w/r/t furniture)
CRIMINAL TRESPASS
(MPC 221.2)
 Trespass: uninvited intrusion onto the real property of another via
self/agent/instrument  does not require damage, damage is the fact that you entered
o Boat, car, mobile home would not qualify - those are movables/personalty
 WOULD include car w/ flat tire, mobile home on blocks, shed that's
affixed, other fixtures
Harm
is
NOT
harm
of destroying property - kicking in door or stomping on flowers is

criminal mischief
o Harm in criminal trespass = uninvited presence on property
o Can be victim’s property, or a property to which they have superior possessory
claim (e.g., office; owned by Emory, not by Witte, who is bailee)
 Minimum Doctrinal Thresholds
o Definition: intrusion on to victim’s real property and or improvements
o KEY: do not just think about the man and woman in the castle
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
 It can be your hotel room, your locker, your apartment
 It can be temporary/permanent/title/possessory
Need to be aware of victim’s claim to that space
o Court says we are going to be very particular as to what the victims claim is to
that property interest
 Example: Your seat in Witte’s class is custom. But if there is a seating
chart and overtime the entitlement grows and your contract becomes
possessory from 90 minutes on Tuesday and Thursdays. If there is a sign it
automatically is trespass because then it is possessory.  Implied contract
Criminal Trespass: Actus Reus
 Action/omission
 Exceeding your license: Can be extended to other occupied structures - shops, stores - in
which D has an invitation to do a certain thing/purpose at a certain time
o Going to back of store that says employees only? Trespass - certain purpose
o Staying after hours in a store without permission? Trespass - certain time
o Eating your lunch in a Neiman Marcus? Trespass - certain purpose
o Getting invited to someone's house for dinner
 You have license to come into property, bang on door, ring bell, walk in
 CANNOT wander around the house on purpose and look in all the rooms
 CANNOT sit in the living room after everyone's gone to bed
 Inadvertently wandering around trying to find bathroom is OK, that's an
accident
 If you put a "no soliciting" sign on your property that everyone can see, a
person can't come on your property without permission, full stop (e.g. no
Jehovah's witnesses, political door-knockers). FedEx would need to get
permission
Criminal Trespass: Mens Rea
 Usual MPC/CL distinctions
Criminal Trespass: Aggravants
 Entering into home vs. entering into business
 Entering into structure vs. entering onto land
 Occupied vs. unoccupied structure
 Fenced vs. open
 Posted vs. unposted
Criminal Defamation of Title
 Criminal defamation of title protects a victim from having their title claim to a real or
personal piece of property falsely challenged
 Harm = shadow D places on victim’s title to real/personal property, reducing its use and
value. Worse if market loss or other commercial loss
o Most common: fraudulent workman's liens - people fraudulently putting a lien
on property for doing work
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o Also: internet - questioning someone's title to something, making people
suspect that a person does not hold title to the property that they're
pretending to (or the nature of the title, like commenting that a house for sale has
termites when it doesn't). If this derails a deal, can be criminal defamation of title
o Rare: claiming something you took is not that person's, but is YOURS,
especially to a lot of people - can be criminal defamation of title w/r/t personalty
Deprivation Crimes
Common Law:
 Has a baseline deprivation crime of theft, as a crime of last resort when you can't get
anything else.
 Want to try to land in larceny, robbery, false pretenses, or embezzlement before going
to baseline theft
MPC:
 Calls everything theft, by a number of different means - some of which are unique, many
of which mirror the common law categories. [MPC 223.4]
General:
 No matter the jurisdiction, we have ways to distinguish between felony and
misdemeanor in deprivation crimes:
o Usually determined by fair market value - no consideration to sentimental or
ascribed value
o If something has FMV of $5,000 or more, deprivation is felonious = grand
o If less, it is a misdemeanor = petty
o Law of mistake doesn't count. If you take what you think is a cheap poster and it
turns out to be the Mona Lisa, you've committed grand larceny even though you
intended to commit petty
o Length of deprivation
o Taking real property
LARCENY
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Larceny = the trespassory taking and asportation (removal) of the personal property
of another with intent to deprive
Grand larceny = if the thing stolen is worth at least $5k. Felony
Petty larceny = less than $5k. Misdemeanor
Measure by damage done to the victim, not the criminal's intentions - so if you
attempt to take something that's worth a ton but it turns out to be a worthless trinket,
you're either liable for attempted grand larceny or petty larceny
o We use fair market value to measure damage done to the victim. Sentimental
value to the victim or criminal doesn't matter
Trespassory
 Criminal must trespass onto someone's land to take the personalty
o Any trespass is fine (plain, aggravated, trespass that rises to burglary - just needs
to be uninvited entry)
65
o
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
If you're invited into someone's house and grab something while you're there, it's
not larceny, because no trespass. Would be baseline theft
Can also be trespass by exceeding license or going beyond the space you were invited
to occupy
o E.g., stealing something in someone's bedroom when you were invited for dinner
o Going to a store and taking clothes without paying for it = larceny (exceeded
license within store)
o Going to a store and hiding a book behind a shelf so you can get it the next day =
not larceny - no removal - but may be trespass
Must be on real property or fixture (e.g., house, locker, affixed safe, affixed barn)
o Theft from boat or car (movables/personalty?) is just baseline theft, while the
intrusion would be trespass on chattels
**Property interest of the victim of the trespass DOES NOT HAVE TO MATCH the
taking of the property
 You can have a trespass AND a larceny
 Doctrinally, they are 2 separate offenses
o Trespass has to be real property, not movables
 You cannot trespass in a car since it is movable
 If car did not have tires and was on cement blocks, it could be a trespass
and a larceny
 Folds into larceny and burglary
o Larceny lives vicariously over the definition of criminal trespass
 If you have larceny, you MUST have trespass
 HOWEVER, you can have trespass without larceny
 Also, REMEMBER you can have criminal mischief included with
all of this if you have destroyed something
Taking and Removing/Asportation
 Don't need to remove property from the building it's in - moving the object from its
place within the realty is sufficient IF is it moved in such a way that deprives victim
of property interest (e.g. hidden in closet)
o Picking it up but NOT moving it in such a fashion does not have
asportation/removal = attempted larceny
 Constructive taking is enough:
o By an agent or another party, (person, dog)
o By instrument
o By virtual control - taking a picture or memorizing classified
information/intangibles (a formula, a password, virtual documents), can be taking.
Keeping it on your phone, or even it automatically uploading to the cloud, can be
removal
 Taking a picture of a painting or making a sketch counts as taking - takes
away victim's exclusive property interest
 Same rationale behind hacking as a taking - it's not that victim can't access
anymore, it's that he lost his exclusive property interest
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Personal Property of Another
 Personalty or intangibles
o You don't need to have a match between personal property interest invaded and
real property interest invaded
 If you break into someone's house and steal someone else's personalty,
that's still larceny (two separate crimes)
 BUT it tends to be worse (trespass collapses into one, more serious form
of larceny) if the person you trespassed on is also the victim of the larceny
With Intent to Deprive
 Must intend to deprive victim of personal property
o Purpose/knowing mens rea required
o Doesn't matter if victim knows, or only momentary, or only partly, or merely
deprivation of exclusive enjoyment (taking a photograph)
o Look at intent when you took it. Not when you trespassed
 Ongoing retention of personal property after larceny morphs into possession offense as
well after scene ends – scene ends quicker if it’s something illegal
Larceny – Aggravants

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
Value of property
The longer you take the property, the more permanent the deprivation
Harm to body
BURGLARY
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Aggravated form of trespass - criminal trespass can often be folded into this
Burglary = trespassory breaking and entering of someone else's improved real
property with intent to commit a felony inside
o What goes on inside after burglary is immaterial, what matters is what the D
INTENDED when entering property
Trespass and criminal mischief get bundled into burglary, but any felony inside is a
separate crime.
o You could have burglary and murder, arson, etc.
Breaking and entering using an agent can still be burglary
Entry and THEN breaking - entering a wide-open door and opening one on the way out is not burglary
Every time you break and enter with felonious intent - even in a structure you've already
burglarized - you've got a new charge of burglary
Obtaining entry through fraud, instead of breaking, is not enough for burglary
The real property that gets broken doesn't have to be permanent - can be something
someone is leasing, or is temporarily possessing, like an office or hotel room. All that
matters is they have a superior possessory claim (breaking into your roommate's
bedroom could be burglary)
Cybercrime - if someone breaks into your computer with felonious intent (to steal
something so valuable its deprivation constitutes a felony), this is burglary
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Breaking:
 Not just walking into wide-open space - usually need:
o (1) physical destruction of the occupied structure OR
o (2) any sort of force beyond locomotion - e.g., unlocking a door, nudging your
way in, pushing open a window, even if inadvertent
 Can go beyond structure itself - jumping over hedges, fences, etc.
 The worse the breaking (e.g., knocking down door vs. picking lock), the
more aggravated offense
 If you were to jump through a window and not touch anything, that's just
burglary, not trespass
Entering:
 Actually going inside and breaking the plane of the improved real property, not just
naked land.
o Go through door, window, fence
o Even if you don't have the burglary case upon entry (no breaking yet), it can
develop later if you open the door (break) to a room you're not supposed to be in
o Opening three doors to find a kidnap victim, all of which you're not allowed to
enter, would be three separate charges of burglary
Intent to Commit Felony Inside:
 Concerned with intent when you entered
 Must have intent to commit a felony (arson, kidnapping, rape, murder, or a serious kind
of mischief/grand theft [destroying expensive picture, stealing silver in safe, depriving
someone of top-secret info on a computer])
o Does not matter whether or not you actually commit the felony
o Breaking and entering and THEN developing intent would not be burglary would be criminal trespass [enter], criminal mischief [break], and larceny [theft]
o Intent is key - if you intended to steal a priceless picture and it ends up being
worthless, that's burglary. If you intended to steal a worthless picture and it ends
up being priceless, that’s NOT burglary
Burglary – Aggravants:
 Value of property burglarized
 Regularly occupied structure vs. empty structure
 Level of damage – complete destruction vs. partial destruction
 Some jurisdictions: burglary “at night” is aggravant, but becoming less common
Attempted Burglary:
 If a person breaks with felonious intent and then they run away without having
entered, you can get attempted burglary - you have specific intent mens rea, you have
enough of actus reus
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ROBBERY
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Robbery = taking and asportation of the personal property of another from their
person or presence by force or threat of force with intent to deprive
Trespass is an aggravant, but NOT a necessary element
o Definition: the victim loses their property because the defendant has come along
and done something by force or threat of force
 We are missing trespass
 Someone is holding you up – it can occur anywhere
 If it is trespassory, then it is worse and becomes aggravated (but
trespass not required)
Attempted robbery = taking, but can't remove
This is an aggravated form of larceny. "Taking and asportation of personal property" has
same rules as larceny
From Their Person or Presence
 Could be…
o Something attached to victim's body (e.g., backpack); OR
o More often - something within wingspan (within your possession) in a public
place; OR
o Taking from someone's place (e.g., house, office, customary space, like Witte's
teaching area - a place they hold superior claim to)
By Force or Threat of Force
 Bakes assault and battery into robbery definition
 By force = by battery
o Don't need bruise, proof, etc. - victim just has to feel the force
 If victim does not feel force, no robbery
o The more harm, the bigger the aggravant
 Not all batteries will qualify for robbery (e.g., touching someone will they
are unconscious) - but it is a necessary element]
 By threat of force = (1) by assault, OR (2) threat of force against some party in eyeshot,
or earshot to victim, whose potential harm to the body triggers victim's decision to
give up property interest (threatened party would have assault charge, party who gave
up property would have robbery charge)
o Threat of force must be imminent. Threat of future force = extortion
o Conditional assault also qualifies
Do not necessarily have to have a weapon
 Pulling something out of someone's hand is enough to constitute force
 REQUIRES:
o Force in the form of batter: To take it from the victim in a way that he or she
knows. Example: pick pocket not necessarily a robber if Ms. Fredericks is
unaware
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o
o
Assault: Robbery goes further than plain assault because it threatens a person and
their property
KEY: as long as you can combine the force with the dispossession it is taking
from presence which constitutes a robbery
 Grand if
 You use something dangerous
 When the harm results in damage to the victim or 3rd party
(battery) or
o If the victim of the battery is the same as the robbery, we
just call that an aggravated battery
o But if it is a 3rd party there is an individual battery, and then
a robbery against the person who was dispossessed.
 It is 5k or more
 Petty
 If not grand
Robbery – Aggravants (MPC 222)
 Harm to victim
 Value of property
 Victim feeling mortal threat (knife, gun, black belt in karate, etc.)
 Trespass
Robbery - Mens Rea
 Same as mens rea of larceny - what was intent when TAKING the personal property not before, after, or intent during assault/battery
 Need specific intent for both assault/battery AND taking (intent to deprive)
Robbery v. Larceny?
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Trespass
Robbery can occur anywhere
For robbery cases, trespass is an aggravant
o This is more serious because you are taking their personal property from their
person or possession
o You are victimizing them and taking from them and they know it and they can
feel it
FOCUS is on the victim’s possessory space
o Robbery is taking from the victim’s body or something attached, their wingspan
in a public place, or taking from the victim when the D has intruded on their land
or on their space
Did the D threatened the victim’s body/3rd party’s body/within eye short or ear shot of the
victim/threaten series of felonious harm against victim’s property interest?
o If the victim voluntarily dispossessed themselves as a consequence of the
defendant’s threat or infliction of force, it is a robbery
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
Example: You break into a house that you think is empty, but it turns out that someone is
actually inside. You thought you were going to commit a larceny. However, the transfer
intent doctrine says that you committed a robbery
FALSE PRETENSES
(MPC 224.5-6; 223.3)
 False pretenses = D holds himself out as someone different than he or she is or holds out
the property as something different than what it is; fraudulent acquisition of ANY
property interest (not just personalty)
 Examples:
o Person pretends to be valet, steals your car
o Sell your car and say it's never been in an accident, but it has
 You obtain property interest in more money due to fraudulent assumption
that car is worth more
o Selling house in terrible condition, but you hide the holes
 If omission induced them to enter the transaction, it's false pretenses
o Giving a cancelled credit card as payment for hotel room - acquire key
(possessory interest in hotel room) fraudulently
o Comcast rep who tells you to pay them on the side to install better channels - both
of you, as principal/accomplice, are liable for false pretenses against victim
(Comcast)
 The bad state of mind on acquisition makes the Ds conduct false pretenses (used to
be called larceny by trick)
 REQUIRED ELEMENTS
o INTENTS:
 (1) Misrepresentation of yourself or your property
 (2) To do fraud when you get it
  If only 1st intent is met, try attempted false pretense
EMBEZZLEMENT

D gets lawful acquisition of property with intent to use it legally, and decides
AFTERWARDS to use it in a different way than was expected (expectations formed
via contract, custom, etc.)
o Failure to use something per expectation:
 Real estate agent uses your house to throw party
 Valet takes your car and later decides to take it for a spin
 Even if he replaces the gas, he's still embezzled b/c he
misappropriated expected use of the property
o Failure to make deposits/delivery
 Giving money to your investment advisor to put in your account, but he
later decides to use it to buy a plane ticket
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Theft of services:
o Not paying bills
o Order and pay for normal TV service, get premium service instead
 You have a reasonable period of time to send it back, otherwise it's
embezzlement
 Can't self-help - if you keep it and only use normal channels,
still embezzlement
Mislaid/lost property:
o $20 sitting on sidewalk and you take it? Fine, no embezzlement
 $2M? At that point, taking would be embezzlement
 Line here is subjective; maybe around $100-500
 Reasonable efforts - if you use reasonable efforts to attempt to
return something that you received and have an obligation to
reasonably dispossess, you fulfilled your duty and will not be
guilty of embezzlement
o Context makes a difference - $20 that falls out of friend’s purse and you keep
it? Embezzlement
The possession offense collapses into embezzlement
Embezzlement - Mens Rea
 Embezzlement = specific intent crime - have to intend to deprive victim of use of
property
o Not necessarily specific intent to hurt victim, but to misappropriate property.
 Negligent deprivation would just be grand or petty theft
o Knowledge isn't enough; need purpose
**Embezzlement and criminal mischief often come together
POSSESSION OFFENSES
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Merely possessing something can be illegal, even temporarily possessing it (e.g., moving
something from a crime scene)
Can be possession of an intangible good
Most courts interpret possession offenses to require that the accused be aware that she
has the thing she is charged with possessing, even while the statute is silent on the subject
o Model Penal Code §2.01: Possession can satisfy the actus reus requirement of
§2.01(1) ONLY when the accused was aware of his control [of the thing
possessed] for a sufficient period to have been able to terminate his possession
By far, the BIGGEST category of crime
o This is where a bunch of people get put into jail. It has a couple of interesting
mens rea wrinkles
Essentially: “Having stuff that is illegal”
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1st Example: Drugs
 Simply having them is a crime. It also goes to prescriptions drugs you do
not have a proper prescription for
nd
o 2 Example: Illegal, Stolen Goods
 You do not have possessory or title interest, yet you still possess it
rd
o 3 Example: Government Documents
 Indicated as top secret
th
o 4 Example: Military Stuff
 Tanks, machine guns, etc.
th
o 5 Example: Something that is temporarily a great (government) interest
 Key piece of evidence in an investigation
Either one of 2 things:
o (1) Voluntarily: You took it yourself
o (2) Culpable Omission: Someone gave it to you, and you did not dispossess
yourself of it
o

What is possession?
 The law says when it is in a public space, it is your space when it is within your
wingspan
 ALSO – “Presence” in a public space is also your wingspan. If the item was in your
locker, apartment, locked trunk  YOUR space
o If it is in your space: Either in public (wingspan) OR private (you have
exclusive control)  You have possession
 The law is interested in who has principal control over the place where the illegal,
possessed item is
 In public places – (1) on your person, (2) wingspan rule - you possess things in your
general wingspan, (3) with an agent/bailee
 In private places – exclusivity/predominance of the interest in property
o Custom - if something is in an area that you customarily occupy and store things
in, if could be said to be in your possession - e.g., a professor's teaching area
during class hours
o You can possess something if it's in a place over which you have superior
custody, even if you're far away from it - e.g., in your car. Doesn't have to be
exclusive custody, can be co-possession
o House, business, or real property around it
 Co-possession - Two people can possess something if it's right in the middle of them
Possession Offenses - Actus Reus
1. You can get possession through a voluntary act. Usual actus reus rules apply
2. Can also get possession involuntarily
 Time 1: Merely involuntarily acquiring something isn't enough for actus reus, but…
 Time 2: If you voluntarily fail to dispossess yourself of it, that can be enough
o Rule of reason: You don't have to do it right away - you have a reasonable
amount of time to get rid of it.
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If someone parks a missile launcher in your driveway, you've got to call
the cops
If you get stolen items unintentionally, you have to return them
If you order the basic Comcast system and you get the full package, you
have an obligation to get rid of it
Possession Offenses - Mens Rea
 Need for look at mens rea for:
1. Illegality of object; and
2. Whether or not the person has possession
 Knowing or actively preventing yourself from not knowing works for mens rea here
(constructive knowledge)
o "Willful blindness", putting your head in the sand - middle ground between
knowledge and reckless
 E.g., going to Best Buy, and all the computers are the same, but one is
$99. You buy that one, and get arrested for stolen goods
 Constructive Knowledge/Ostrich Rule: Deliberately avoiding acquiring unpleasant
knowledge. The D, knowingly or strongly suspecting that he is involved in shady
dealings, takes steps to make sure that he does not acquire full or exact knowledge of the
nature and extent of those dealings
o Halfway between actual, subjective knowledge & reckless disregard as to whether
the knowledge is in fact there. We are halfway through MR meter. This is “soft”
or “constructive” knowledge
 HYPO: If you are in the desert at your ranch in TX and see a really cool plate and put it
in your pocket. The law says if you get arrested, you do not have mens rea because there
was no way for you to know.
o What if it was on TV and the news said they are actively looking for the cool
plate. If you do not have a TV or news access, there is NO mens rea
o What if you are at a restaurant and you see/hear the news requesting the plate. The
law says it is pretty close to having mens rea
o NOW – if you have a TV in your house and you hear the news and do NOT turn
in the plate, there is definitely mens rea
 HYPO: Your boyfriend gives you a beautiful Russian bowl for Valentine’s Day and you
do not know anything else about it
o The moment you start hearing about the burglary of an art museum, there is no
mens rea
o When it is revealed that Russian art has been taken on the news, there is no mens
rea
o The next day, more specific details about the bowl and you hear the news, but you
do not look at the bowl to see whether it is the bowl your boyfriend gave you
 This is the Ostrich Rule: you are actively not trying to find out the truth
 HYPO: If D has a car with specific and secret compartment, did he act with purpose?
o D knows nothing else. He has never heard of it being used for anything. Guilty?
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The law would say probably not. This is NOT constructive knowledge.
Most likely, he will be found negligent
HYPO: Car has secret compartment and D knows other people in the neighborhood have
secretly transported drugs. Is this constructive knowledge? YES
o What is the obligation of the Defendant? To check to the car
 If he checks, we cannot hold D liable because he did the affirmative thing
to make sure nothing was illegal
HYPO: D did check the secret compartment. Someone threw in an open container of
marijuana in the car. He smells it. Is he guilty now? YES
o His actus reus: Affirmative duty to check // Culpable omission: He was supposed
to act
HYPO: If you own an apartment and lease it out to 2 guys and they have drugs
o You do not personally possess the drugs. The tenants have custody of the
property.
 HOWEVER – if you suspect that there are drugs and if they get arrested,
are you guilty? Yes, you have constructive knowledge of its presence
 You, yourself, have to check OR you should call the police
 You could be charged for an omission for failing to look
 If someone calls you and tells you pot is being grown, there is not really
an obligation. If you have cameras & see it, you have constructive
knowledge and there is an obligation. If you do not do anything  ostrich
rule
If we have a purpose of getting illegal goods out of commerce, we really want to put
an obligation on the Defendant to check
o Clumsy person taken into account, but besides that, there is affirmative duty to
check
HOW TO ESCAPE PUNISHMENT: EXCULPATION
DOCTRINES
Principles of Justification: Defense and Necessity
Lines of defense:
1. Purposes of punishment
o Using our theories of punishment - does it even make any sense to punish here,
given the inadequacy of the purposes to this scenario, or after all the victim's been
through already?
2. All pieces of prima facie case have to be made out - if any aren't there, the case goes
away
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3. Statute - sometimes you don't meet the definition of what the statute sets up. Conduct
doesn't fit the crime
4. Partial defenses - used to mitigate – must be established beyond a reasonable doubt
o Mistake of fact/law - Mens rea can go away or be mitigated to something lower
o Voluntary manslaughter - Can use this to mitigate homicide charge from firstor second-degree murder
o Due process limits on strict liability offenses
 If none of these works, and the entire prima facie case has been made out, we turn to
affirmative defenses
Affirmative Defenses: It is the burden of the defense counsel to prove beyond a reasonable
doubt that something does NOT exist
 1) No Reason to Punish
o First part of this course tells the judge, “It makes no sense to punish this person”
 2) Troubling the Prima Facie case
o There is no “actus reus/duty/causation/intervening cause” here
 3) Statutory Level
o There is no statute at all
o D’s conduct does not fit the statute and have not met basic statutory definitions
 (Prosecutor got too greedy or got it wrong altogether)
 4) Mistake of Fact/Law
o Proves client was mistaken and therefore does not have mens rea
 5) Voluntary Manslaughter – Partial Defense
o D did commit an intentional killing BUT did it under partial impairment of
reason/extreme emotional disturbance
 6) Due Process Constraints
o There has been a due process constraint (strict or partial liability)
AFFIRMATIVE DEFENSES: JUSTIFICATION DOCTRINE
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Necessity – best to pursue
o Nature/a natural circumstance induced D to cause harm to victim’s person or
property as a lesser evil
o D did the right thing. No crime
Self-defense
o Umbrella term for defense of self, loved ones, property, household, etc.
o Victim induced D to do harm to victim’s person or property
o No crime
Duress
o Third party induced D to do harm to victim’s person or property
o Still a crime, but no punishment, but a “record” may linger
These don’t have to be proved beyond a reasonable doubt, just need to put enough doubt
in minds of jury that they're not guilty beyond reasonable doubt
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(1) Necessity: D looks like she committed crime, but she did it out of necessity. She had to
choose between 2 bad things
 D was forced to take law into her own hands and forced to commit what seems like a
prima facie case of crime against someone else’s person or property, but was motivated
by having something worse avoided  D chose smaller damage over greater damage
 D does act because he didn't have a choice - forced by natural condition to take
choose between two evils, and D picks what he believes to be lesser evil. D becomes a
mini-State; takes law into his own hands
o E.g., on a boat, and a massive storm comes. You tie yourself onto someone's pier.
You're trespassing, but you're doing it out of necessity
o Get lost on Appalachian trail; it's freezing out, and you're out of food. Break into
cabin, steal food to save yourself
o Working on a fire crew, a fire is coming down the mountain toward LA, so you
create a fire line - burning a ranch/vineyard/collection of homes, the only way to
stop it. Destroy some property and some homes in order to save millions of
people
 If true, D's behavior, and the harm is caused, is justified, and he is not guilty of the crime
Necessity – Three Criteria
1. Honesty of the calculus
 Conduct must be motivated at the time by the desire to avoid something worse - can't
be an excuse after the fact
o D’s actual belief is key
 E.g., breaking into someone's house and steal a precious jewel, but the
owner is dying, and you call 911 and save him - not an honest claim of
necessity, b/c real purpose in doing harm was different from the heroic
purpose you're alleging
o D CAN create the peril – will be guilty of the first peril, but not the second one
 E.g., against fire regulations, you start fire in your yard. Fire spreads could
burn down city. Burn a fire line through unoccupied property to save the
city – guilty of first fire, but not the fire line
2. Reasonableness / Imminence of Circumstance
 More objective - is this a circumstance that a reasonable person would think involves a
necessity calculus? Was there truly no adequate alternative?
 Jury decides
 Considerations:
o Ability to contact authorities/seek alternative means
o Passage of time
o Repetition of conduct
o Stay in the cabin you broke into for safety for a whole year? Unreasonable
o There is time when necessity expires, and it becomes unreasonable to do that
activity
 This is both a subjective - what you thought - and objective - what a reasonable person
thinks - calculus
3. Proportionality
 Is what you did proportionate to the harm you were trying to avoid?
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o Must have done something LESS serious in order to avoid something MORE
serious
o Subjective calculus, but jury will second-guess
Life-for-life calculus:
 Kill 3 to save 1 = proportionate
 Kill 2 to save 1 = difficult
 Kill 1 to save 1 = not proportionate, need special circumstances
o If the one being saved is your child (high subjective value) – law does not take
this into account, but may take into account in sentencing
o If the one being saved is of high objective value (e.g., President) – law
technically does not take this into account, but prosecutorial discretion –
probably don’t bring this case
 If you’re not making a choice, you're mitigating the harm that your decision caused,
you’re still guilty - that's not necessity doctrine (e.g., being negligent in maintaining
brakes, and you choose to hit one person instead of five [guilty] vs. choosing to tip over
the train which batters some passengers but avoids killing anyone [not guilty])
o Doctor saving mother vs. child; severing conjoined twins so one of them can live
– guided by whether or not doctor made the right choice re: probabilities.
Deference to medical judgment in prosecutorial discretion
Proportionality re: Destruction of Property
 Destroy property to save property: look at FMV, not sentimental value
 Destroy property to save a person: this is proportionate - life is invaluable; destroying
property to save life to avoid harm to life is OK
 Destroy property to save pet: depends on if dog is closer to being family member or
item of property
 Killing/badly harming human life to save property: generally, not proportionate, but
there could be exceptions with highly valuable property (e.g., nuclear code)

Can you shoot someone to save a Picasso?
o If someone is stealing a priceless piece of art/intellectual property/something that
has massive value; does this ultimately change the presumption that life is always
in favor of protecting life over property?
o More and more jurors are saying that protecting things that have super value, even
by the use of mortal force against life, is okay
(2) Self-Defense: Umbrella term for defending one’s own body, bodies of others, one’s property,
property of others
 D is taking the law into her own hands
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
4 kinds of self-help measure the D undertakes:
o (1) Defend himself
o (2) Defend your property
o (3) Defend your neighbor
o (4) Defend your neighbor’s property
 Assumes we are in a world where there is not available the usual kinds of
law enforcement. We are viewing it as potentially “justified” behavior
 It is an affirmative plea
 Start off using this when meeting with prosecutor
 Start up front and if prosecutor chooses to try the case, self-defense
can be used at the end of the case
Elements: “Adequate External Provocation”
 (1) Is this a case where self-defense doctrine seems appropriate?
o Has D shown there was nothing else to do besides harm the person/property?
o Reasonable person inquiry (Fact question for the jury)
 (2) Self-defense has to be in response to an imminent threat
o Cannot use this as an occasion to become a police person or vigilante
o The assumption is that D CANNOT call the cops
o Has to be a real threat, NOT theoretical with no evidence
 (3) Proportionality
o Fight fire with fire; eye for eye; tooth for tooth
o After the fact determination made by the juror and making judgments about
THAT imminent death and the D acting reflexively
o Was it roughly proportionate? Rough equivalence
o When you are helping someone else/vulnerable, we are going to give you FAR
more deference than someone defending themselves
 The stronger the duty, the easier it is to make a self-defense claim
Self-Defense Requirements:
1. Circumstances reasonably require self-defense
 D cannot be the aggressor and claim self-defense
 Did D provoke victim?
2. Harm must be occurring or imminent to victim or victim’s property or third party or
third party’s property (w/in eyeshot, earshot of D)
 Did D have an opportunity to call authorities?
 Reasonable self-protection is allowed under non-imminent circumstances:
o Alarm, guard dog, electric fence, booby trap that traps trespassers, security guard
(may need sign that says “no trespassing” or “protected by security”)
o Reasonable: Machine gun trap may be able to protect nuclear bomb or CDC
Ebola vault, but not a garage
3. Proportionality
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Eye-for-eye is OK; no escalation by D allowed
o Weigh relative threat and circumstance – e.g., disparity in size, circumstance in
which threat is inflicted, vulnerability of a threatened third party
o A 6-4 person threatening a 5-foot person – 5-foot person may be allowed to kick
them in the shin in self-defense
Don’t like sacrificing life to save property (unless property is invaluable)
Don’t like mortal force. Last resort, only to be used if mortal force occurring against
you or impending reasonable threat of mortal force
o In SOME situations, it may be appropriate – large, drunk man following you for
100 feet through a dark alley at 3AM
Has to be both subjective – D himself must feel threatened; not enough just that a
reasonable person would – AND objective, can’t let individual biases factor in
Does D need to evade or avoid conflict if possible?
 Answer used to be yes, if safe, but most states today = stand your ground – you do not
need to evade/avoid, want to encourage protection of the individual bubble
 Castle doctrine: if you’re in your own property, you can protect it with mortal force,
if reasonable threat – does not need to be mortal force used against you
o Can shoot someone breaking into your house at night; cannot shoot Jehovah’s
witnesses at your door
o Can be immediate, don’t need to call 911
o What qualifies as castle?
 House, motor home, truck with sleeper, homeless person establishing a
“space”, office, hotel room (less it becomes of a castle, harder to prove
proportionality)
 NOT car, unless it’s functionally a home
 Hot pursuit: if someone commits a crime, you can run after them
o Proportionality and reasonableness still factor in
 Ex. if someone steals my book, I can chase them out of the room/school
but can’t follow to Alabama.
 The scene ends after a time; you could’ve called the police
 Value of property impacts how wide the scene is
 Sentimental value of property does not weigh into calculus - unless
a child, infant, etc.
o If the scene ends and you threaten them, could be assault, robbery, etc.
 Transferred intent/transferred justification
o If D acts in justified self-defense and accidentally harms an innocent party, the
justification transfers (but the prima facie case of self-defense may be extra
scrutinized)
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The Retreat Problem:
 Example: Taxicab opens window to get the fare from his passenger. Passenger has gun.
In the old days, job of taxicab was to close window and step on the gas. The idea was:
DO NOT ESCALATE
o NOW – the law says you can “Stand Your Ground”
 You no longer have to retreat
 It is a minority of jurisdictions, but it is gaining traction. Some say it is a
dangerous and “John Wayne” type of world in public places
 Even in the jurisdiction with the retreat problem, you do not have to
exercise unreasonable efforts of escape or evasion, but if you can escape
WITHOUT standing your ground/self-defense, you should
Nelson v. State
 The commission of a crime is justifiable if it is necessary to prevent a greater harm from
occurring.
The Queen v. Dudley and Stephens
 The defense of necessity does not justify homicide unless the killing was committed in
self-defense.
Principles of Excuse
Two main kinds of excuse doctrine. What the D did is criminal and should properly bear liability
and punishment for what he/she did, but we are going to excuse the D from punishment because
of some pressure from without or within against their mind
(3) Duress:
 Pressure from WITHOUT is an instance where you are forced by the pressure someone
else imposes on you to commit a crime
 A third party compels D to do harm to victim’s person of property
o Actus reus isn’t being derailed, but there’s an outside force (e.g., threatening
someone to punch someone vs. picking up their hand and doing it)
 D makes immediate choice between harm to D and harm to victim
 Can be a complete defense, or can mitigate rather than exonerate
 Requirements:
o Fear must be reasonable
 Not irrational not invented after the fact, no created by D by voluntarily
putting himself under duress
o Fear must be immediate or imminent
 Not ongoing fear, or fear of future harm
o Fear must be of death or serious injury to self, family, or third party
 In rare cases (priceless info, potentially invaluable painting or dog) can
apply to fear of harm to property
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
Limits:
o D can’t create circumstance of being duress-ed (e.g., joined a gang, already an
accomplice to another crime, knew substantial risk of duress being around third
party)
o D must evade or escape if possible (no stand your ground)
o Usually does not excuse homicide or attempted homicide (can excuse accidental
death)
(4) Insanity:
 Some people do not have the capacity to make rational judgments about their behavior.
They are permanently insane and do not have the emotional/rational capacity to
understand what they are doing. Their insanity excuses them
o In cases of permanent insanity: it is the persistent condition that excuses the party
and will often result in D being excused from criminal punishment, but committed
for rehabilitation or incapacitation by reasons of insanity  asylum or institution
 “Hail Mary’s”: RARELY WORKS
 When they do work, your client does not get to go home. They end
up in a horrible context in a mental health community that can be
deeply corrosive to their health and longevity and often deprived of
due process constraints
 In cases of temporary insanity: Some people will lose their capacity, but it is only
temporary and at the time they committed the crime, they were clearly insane
o But now they are perfectly rational
o Designed in part to deal with the reality that some people dip into massive levels
of mental and emotional illness and come out
o Cynically, it emerged as an attempt to fix the problem of sending your client into
an alternative form of incarceration with NO due process for their lives after
 It is DEEPLY disfavored
 Intoxication  another defense but did not cover it
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