ELEMENTS OF CRIMES
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Element of crime🡪fact that is definitional part of a crime
o Component of the statutory definition of a crime
o Factors that have to be proven
Key types of elements
o Voluntary act or omission (actus reus)
▪ When statute doesn’t explicitly state act, any voluntary act or omission will do
▪ Voluntary act requirement🡪can’t be punished for act or omission outside of your control
● Ability to avoid act or omission
● Example: every state recognizes that you cant be convicted if you cant pay child support
▪ If you’re not conscious but acting like you are🡪probably considered involuntary
▪ Impairment of judgment is not enough to render act involuntary
o Mental state (mens rea)🡪ex. Knew or should have known
o Causation and result🡪some consequence resulted🡪perhaps injury
o Attendant circumstances🡪other facts that don’t fit into the above categories
Constructive knowledge requirement🡪person should have known something
Winship: D (12y/o) was found by a preponderance of the evidence to have committed a crime but judge acknowledged that the
proof might not establish guilt beyond a reasonable doubt
o Rule: prosecutor must prove each element of a crime to a jury beyond a reasonable doubt, unless D pleads guilty.
o Proof beyond a reasonable doubt is among the essentials of due process and fair treatment required during the
adjudicatory stage when a juvenile is charged with an act that would constitute a crime if committed by an adult. This
standard of proof requires the absence of evidence that would cause a reasonable person to hesitate in making a
decision.
o Juveniles are constitutionally entitled to proof beyond a reasonable doubt when charged with violation of a criminal law
o Different standards of proof are important🡪communicate to the factfinder how intense such a belief should be
Random side note: Teachers have mandatory legal duties🡪mandatory reporter
STANDARDS OF REVIEW ON APPEAL
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Types of appeals in criminal cases:
o Sufficiency of the evidence
▪ Factual: Jury assessed evidence wrong.
▪ Legal: Even accepting its evidence, P’s theory didn’t add up to a crime.
● Less common than factual challenges
● Come from dispute over definitions of a crime
o Jury instructions: Jury given wrong legal standard to apply.
o Procedural error: Trial run improperly—D’s rights violated.
Standards of review: facts vs. law
o Factual findings: reversed on appeal only if unreasonable (no reasonable jury would find beyond reasonable doubt).
o Legal holdings—reviewed de novo (on a blank slate).
o Discretionary decisions—reviewed for abuse of discretion(high bar).
What does this mean in criminal cases?
o Factual insufficiency challenges: Reverse if no reasonable juror could have found proof beyond a reasonable doubt.
o Legal insufficiency and jury instruction challenges: De novo review.
Standards of review in procedural or sentencing appeals
o If question of law:de novo
o If matter within the trial court’s discretion: review for “abuse of discretion”
o Scope of the trial court’s discretion may be contested, and is itself a question of law.
Appellate Remedies in Criminal Cases (if error found pursuant to standard of review)
o Factual or legal insufficiency: D goes free🡪no retrial.
o Jury instructions or procedural error: Usually, reversal and retrial, if the error wasprejudicial.
▪ If not prejudicial, no remedy (harmless error).
Jury determinations carry more weight with courts of appeals
o Factual determinations usually up to jury🡪juries know more facts generally
o Traditional role as representative of the community
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OMISSIONS AS ACTS
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The Voluntary Act Requirement
o D cannot be punished for an act or omission that was outside his control.
o What does this requirement entail?
▪ Basic control—ability to avoid the act/omission.
▪ It’s NOT about full comprehension of the act’s nature, consequences, or the circumstances.
Omission is the failure to perform an act or obligation that one is required to perform by law.
When omissions can be crimes (outside of this, you can’t punish D for an act that was involuntary/outside of his control):
o D could have acted (voluntarily) AND
o D was under affirmative legal duty to act
Possible sources of legal duties:
o The criminal statute itself
o Common law or civil statutes such as:
▪ Special relationships entailing duties of care
● Parent/kid, doctor/patient, warden/prisoner, spouses
▪ Voluntary assumption of responsibility
● Contract or legally enforceable promise
o TPC Section 22.04 (old): A person commits an offense if he intentionally, knowingly, recklessly, or with criminal
negligence, by act or omission, engages in conduct that causes to an individual who is 65 years of age or older serious
bodily injury
o TPC 6.01(c): A person who omits to perform an act does not commit an offense unless a statute provides that the
omission is an offense or otherwise provides that he has a duty to perform the act.
o TPC Sec. 22.04 (b) (new)🡪imposed legal duty clause
▪ An omission that causes [serious bodily injury] is conduct constituting an offense under this section if:
● The actor has a legal or statutory duty to act; or
● The actor has assumed care, custody, or control of…[an] elderly individual….
o TPC Sec. 22.04(d) (new)
▪ The actor has assumed care, custody, or control if he has by act, words, or course of conduct acted so as to
cause a reasonable person to conclude that he has accepted responsibility for protection, food, shelter, and
medical care for [an] elderly individual…
Billingslea: lessons for statutory interpretation
o Policy arguments matter, but frame in terms of legislative intent.
o Think about implications for other cases
o Courts sometimes read into what the legislature leaves out of statutes
Billingslea: lessons for omissions
o Omissions liability is disfavored, so legislatures have to be extra clear or courts will invoke lenity.
o P should look for ways to frame it as an affirmative act case.
Jones v. U.S.: Under some circumstances, omission of legal duty owed by one person to another, where such omission results in
the death (immediate cause of the death) of the one to whom duty is owed, will make the other chargeable with manslaughter.
o Only liable when duty to perform omitted act is imposed by law🡪D needs a legal duty, NOT a moral duty.
o Breach of legal duty can arise in 4 situations:
▪ (1) Where a statute imposes a duty;
▪ (2) Where one is in a certain status relationship to another;
▪ (3) Where one has assumed a contractual duty to care for another; and
▪ (4) Where one has voluntarily assumed the care of another
▪ Extra: D also has a legal duty to act when he creates the circumstances that put the victim in danger
o NOTE: Involuntary manslaughter might become murder if you knew the person could likely die
Bystander Indifference
o Is it a crime to witness a crime and not report it? 🡪DEPENDS
▪ Failure to report rape that takes place in your presence is a crime
o Bystander responsibility?
▪ Majority: no duty to report crimes (except child abuse if mandatory reporter)
▪ Minority: failure to report certain crimes is a misdemeanor
o Kitty Genovese🡪followed and stabbed to death while neighbors watched
▪ Killer kept returning because no one answered her screams
▪ People don’t want to get involved
o Some states impose statutory duties to rescue
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MPC 2.01 – Liability for Voluntary Act/Omission
A person is not guilty of an offense unless his liability is based on conduct, which includes a voluntary act or the omission to perform an
act of which he is physically capable.
● Acts that aren’t voluntary: reflex, convulsion, movement during sleep, unconsciousness, or hypnosis, or actions that aren’t “a
product of the effort or determination of the actor, either conscious or habitual”
(3): Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:
● The omission is expressly made sufficient by the law defining the offense; or
● A (legal) duty to perform the omitted act is otherwise imposed by law.
(4): Possession is a voluntary act…if the possessor knowingly procured or received the thing possessed or was aware of his control thereof
for a sufficient period to have been able to terminate his possession.
● Possession is a voluntary act if you become aware of your control but fail to terminate possession at the first available opportunity
DRUG POSSESSION AND DISTRIBUTION AS ACTS
“War on drugs” is a big part of the number of people who are incarcerated
DISTRIBUTION
● 21 USC 841(a): unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with
intent to manufacture, distribute, or dispense, a controlled substance
● 21 USC 844: unlawful for person knowingly or intentionally to possess controlled substance [except legally prescribed drugs]
● Possession with intent to distribute (PWID) means they didn’t catch the person in the actual act of distributing
● Does sharing count as distribution?
o U.S. v. Washington: guy got stopped for illegally operating a motor vehicle; was found in possession 12.1 grams of crack;
officers didn’t find any drug paraphernalia that would indicate that Washington planned to sell cocaine
▪ Washington said he meant to use and share the coke with his friends BUT court said that was enough to find
that he possessed drugs with intent to distribute.
▪ Distribute means to deliver a controlled substance.
● Deliver means the actual, constructive, or attempted transfer of a controlled substance, whether or not
there exists an agency relationship
o Congress intended to proscribe a range of conduct broader than the mere sale of narcotics.
● No money transfer is necessary🡪they want any transfer to count🡪Congress could have used more
specific language to show this
▪ Sharing drugs with another constitutes “distribution” under 841(a)(1).
o U.S. v. Wright: friend gave D $20 to buy heroin so that the 2 of them could use it together. He bought the heroin and
they used it together
▪ D tried to use Swiderski, which said, “Where 2 individuals simultaneously and jointly acquire possession of a
drug for their own use, intending only to share it together, their crime is simple joint possession, without
any intent to distribute the drug further.” He argued that the purchase was part of a joint venture but court
rejected this theory and upheld the district court’s jury instruction.
▪ Court found that distribute meant to transfer or deliver a substance either directly or by means of another
person 🡪 even if purchase was part of a joint ventureto use drugs, still counts as distribution.
o There is a sharp distinction b/w drug offenses of a commercial nature and illicit personal use of controlled
substance
▪ So why would punish people who are merely sharing the drugs with their friends?
o Lesser penalties for individual possession🡪emphasizes rehabilitation🡪no fear of continuing criminal enterprise.
o U.S. v. Wallace
▪ This case sharply limited scope of Swiderski rule🡪 limited rule to “the passing of a drug between joint
possessors who simultaneously acquired possession at the outset for their own use.”
● Transferring drug to friend still count as drug distribution.
o New Jersey looks at relationship between parties and other factors🡪transferring to friends is not distribution.
o Section 841 changes the consequences of distribution for marijuana, but does not change the definition of distribute🡪
just lesser consequences.
POSSESSION
● Mental state requirement is knowingly and intentionally.
o In possession cases, awareness as enough to satisfy this requirement
● Mens rea for possession is usually knowledge (even if statute is silent)
o Can’t legally possess something if you don’t know it’s there
o Possession must be voluntary to count
▪ Once it’s voluntary, the mental state requirement is satisfied
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Possession is a continuing act that persists throughout the period of control🡪it can become voluntary later even if at the time of
initially taking possession it was not.
o Awareness of the drugs is required for voluntary act
▪ Question about what D must have been aware of given the circumstances is within the domain of the jury
o Once you’re aware, and don’t remedy the situation, you’re at fault
Swidersky🡪can’t criminalize transfer of drugs between people (as distribution) b/c then pretty much every drug user/possessor
would become distributor.
o Instead, it should be simple joint possession.
Possession is NOT the same as ownership, it’s about control over an object
Inference of possession is usually not complicated when drugs are found on a defendant’s person.
United States v. Serrano-Lopez
o Cops stopped car for speeding, searched car b/c they smelled meth, and search revealed coke hidden in the frame of car.
o Ds were all indicted for possessing with the intent to distribute 5 kilos of a mixture or substance containing
coke🡪because they took turns driving (all were in control at some point)
o Lieutenant testified that the amount found in the car is associated with distribution, not possession
o Possession can be actual or constructive
▪ Actual Possession: knowing, direct, and physical control over a thing
▪ Constructive Possession: requires knowledge of object, the ability to control it, and the intent to do so.
● Inferring constructive possession
o Jury question🡪they can infer from circumstantial evidence.
o But mere presence not enough—need other evidence of knowledge.
o This case has no evidence of actual possession but the large quantity of drugs is sufficient evidence of both the intent to
distribute and the intent to exercise control.
▪ They were in the car and the driver was controlling the vehicle🡪evidence of control over the substance
▪ Large quantity is evidence of the defendants’ knowledge that it was in the car.
U.S. v. Stanley: Stanley was passenger in a car that was involved in a crack drug transaction
o There must be more than mere presence of drug in the car to sustain a conviction; there must be circumstances
evidencing a consciousness of guilt on the part of the defendant.
▪ There was not enough evidence to indicate a consciousness of guilt on Stanley’s part
● It’s up to the jury to infer from circumstances
U.S. v. Poole: Defendant got home from trip to Cali. Police officers found lots of drugs in her house.
o She claims not enough time to come into possession of coke b/c she just got home but drugs were found in her house
and she owned and exercised dominion and control over the house.
▪ Constructive possession doesn’t need to be exclusive, so the fact that she didn’t have exclusive control over the
premises doesn’t matter
o Necessary for her to have known the drugs were there
o Knowledge can be inferred from the circumstances BUT mere presence is not enough
In constructive possession cases, some indicia of knowledge or control are:
o Driver of vehicle
o Owner/tenant of premises
o Acting suspicious
o Quantity
INFERRING MENTAL STATES
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Key types of elements of crimes
o Voluntary ACT or omission (Actus Reus)
o MENTAL STATE (Mens Rea)
o CAUSATION and RESULT
o ATTENDANT CIRCUMSTANCES: facts that don’t fit into these categories
You don’t have to know how much you possess, just have to know that you possess something
Mental state with respect to the ACT element
o “Knowingly possesses 50 grams or more of cocaine”
o “Intentionally engages in sexual intercourse”
o Intent is ALWAYS a jury question.
Mental state with respect to future acts
o “Possesses a controlled substance with intent to distribute”
Mental state with respect to RESULT
o “Recklessly causes death”
o “Knowingly inflicts substantial bodily injury”
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Mental state with respect to ATTENDANT CIRCUMSTANCES
o D knew or should have known of a substantial risk that his sex partner was under 16.
o D knew that the property she possessed was stolen.
INFERRING INTENT TO DISTRIBUTE
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Intent is always a jury question: no formal legal presumptions based on quantity
o When inferring intent to distribute, jury can rely on: Quantity; scales, baggies, etc. (things that demonstrate intent to
measure drugs); testimony about past drug dealing; firearms; connections to drug dealers
Possession with intent to distribute (PWID) is punished to the same extent as actual distribution
o No longer have to catch someone in the act of distributing
“Intent to distribute” is an example of a mental state (mens rea)
PWID has 2 mental state elements:
o The possession of the drugs must be “knowing or intentional”
▪ Defendant’s mental state with respect to the act element of the crime
▪ Inseparable from the voluntary act requirement
▪ Don’t have to know exactly how much you possess
o Defendant must intend to distribute the drug
▪ This subsumes the above element
Mental state requirements can go beyond the intent to commit the act element to encompass what the defendant is thinking or
planning with respect to many other things, including:
o Defendant’s own future conduct
o Somebody else’s future conduct
o Some other consequence of the act
o Some other factual circumstance
Inference of intent to distribute can raise challenging problems of proof
Sharp v. Virginia: cops found lots of weed, weed baggies, a phial of marijuana, and a pipe with charred weed in the bowl
o D indicted for possession of weed w/ intent to distribute
o Lower court instructed jury that conviction on this charge may be based solely on evidence about quantity of the weed
unlawfully possessed which makes it easy to convict🡪as long as you have a lot, can be charged with intent to distribute
▪ Lower court said that large quantity is sufficient🡪WRONG
o However the court said that in U.S. v. Childs, judge instructed jury that possession of large quantity of weed may be
considered among all other relevant facts and circumstances to infer intent to distribute, but jury wasn’t required to infer
that D intended to distribute it 🡪have to look at other factors🡪makes it harder to convict
o Courts have to consider totality of circumstances, not just quantitywhen inferring intent to distribute
▪ There has to be evidence of drug dealing BUT without these other factors, juries may infer intent to distribute
from quantity alone
▪ Large quantity is not required for PWID🡪other factors can be present without large quantities
U.S. v. Jones: police officer saw D discard several small bags of coke into toilet
o D says quantity alone is insufficient to charge
▪ Court says quantity CAN BE enough to convict
o Such a large quantity of coke constituted distribution amount🡪sufficient circumstantial evidence for the jury to
conclude Jones possessed with intent to distribute
o Court viewed the record in the light most favorable to the government
INFERRING INTENT TO BRING ABOUT A RESULT
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People v. Conley
o He was charged w/ 2 counts of aggravated battery based on permanent disability and great bodily harm
▪ Hit a guy in the face with a wine bottle, caused broken upper and lower jaws and 4 broken bones in his
face🡪permanent disfigurement, nerve, and dental damage
o Aggravated battery
▪ “…Intentionally or knowingly causes great bodily harm or permanent disability or disfigurement”
▪ Ill. Crim. Code 4-4🡪Intent: A person intends...to accomplish a result...when his conscious objective or purpose is
to accomplish that result....
▪ Ill. Crim. Code 4-5🡪Knowledge: A person knows...the result of his conduct...when he is consciously aware that
such result is practically certain to be caused by his conduct.
o He appealed saying state failed to prove beyond a reasonable doubt that he intended to inflict permanent disability
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Court ruled that not necessary that D intended to bring about resulting injuries 🡪enough to show that he
intentionally struck Sean🡪he intended to cause harm, didn’t need to intend to cause permanent disability
Intent can be inferred from surrounding circumstances, the offender’s words, the weapon used, and force of blow
▪ He used a bottle, without warning, with lots of force🡪enough for jury to reasonably infer the intent to cause
permanent disability
Intentionally = purposefully or knowingly
▪ Illinois uses it to mean “purposefully” but it’s often used to mean “purposefully or knowingly” (common law)
● But in Illinois code, they differentiate b/w intentionally and knowingly, so they can’t mean the same thing
▪ Illinois Crim. Code 4-5: knowledge
● Just have to be consciously aware that such result is practically certain = knowledge
● Not about what he should have known, but about what he actually knows
▪ Natural and probable consequences🡪allows inference from actions and surrounding consequences
● Jurors may draw conclusion that if something has obvious consequence and that thing occurs🡪actor meant
for the consequence to occur🡪 “one intends the natural and probable consequences of one’s actions.”
o Jury can’t be told it must presume this, though!
● Allows inference from actions and surrounding circumstances.
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TRANSFERRED INTENT DOCTRINE
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If D has required mental state w/ respect to harm A, but accidentally causes harm to B instead, mental state element is satisfied
o The criminal intent transfers
o Who you cause harm to is generally not considered BUT you still have to cause harm that you attempted to cause
▪ We do care about actual consequences when deciding how to punish
o Attempt is NOT the same as causing harm to a different person
Falls under utilitarian theory
o Deterrence rationale🡪want people to act carefully
o Threat of future dangerousness
Retributive theory: want to penalize for causing social harm
Example: A tries to shoot B, but accidentally hits C, a police officer
o Can A be charged with purposely causing death of a police officer?
▪ NO🡪A didn’t intend to kill a police officer
● There was no intent to transfer🡪no purpose to kill officer
▪ But he can be charged with causing death of a person
o What if bullet goes through one person and hits another, killing 2 people?
▪ Person caused more harm than intended
● Majority🡪1 murder, 1 negligent homicide
o Allowed to tack on multiple charges that stem from same incident
Transferred intent requires requisite intent and result
Affirmative defenses can transfer
o Example: if you’re using self-defense against someone and accidentally kill someone else🡪self-defense could be
transferred
MENS REA/INTENT IN COMMON LAW
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General intent crimes: only mental state requirement is with respect to the act element
Specific intent crimes: additional mental state requirement(s) with respect to a result or attendant circumstance
“Intent” (purpose): results that are the conscious object of the actor and results that the actor knows are virtually certain to
occur from his conduct, even if he doesn’t want them to arise
Knowledge: aware of a near-certain consequence
Recklessness: aware of a substantial risk (subjective)
Negligence: should have been aware of a substantial risk
Natural and probable consequences doctrine: one intends the natural and probable consequences of his actions
MPC MENTAL STATES (2.02 & 2.03)
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CONDUCT
RESULT
CIRCUMSTANCE
PURPOSE
Conscious Object
Conscious Object
Aware, Believed, or Hoped
KNOWING
Awareness
Aware of Practical Certainty
Aware [of high probability]
RECKLESS
Aware of
Substantial/Unjustifiable Risk
Aware of
Substantial/Unjustifiable Risk
Aware of
Substantial/Unjustifiable Risk
NEGLIGEN
T
Should Have Known of
Substantial/ Unjustifiable Risk
Should Have Known of
Substantial/ Unjustifiable
Risk
Should Have Known of
Substantial/ Unjustifiable Risk
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Hierarchy rule (2.02(5))🡪high to low🡪higher mental states can always substitute for lower ones🡪if you meet purpose, you meet all
of them
o Purpose
o Knowledge
o Recklessness
o Negligence
MPC is NOT law and NOT legally binding but courts have turned to it as basic source for doctrines and principles that govern
imposition of criminal liability and more than half of states have enacted modern criminal codes that draw heavily on the MPC.
o No state has MPC in totality as its criminal law; some states only adopted certain parts
MPC is a comprehensive reform proposal
It’s similar to Restatement but meant to be legislative language that legislature could adopt
MPC’s basic requirement: unless some element of mentalculpability is proved with respect to each material element of the
offense, no valid criminal conviction may be obtained
4 levels of culpability that may be required for establishment of liability (adopted by most states; cited as persuasive authority):
o Purpose, knowledge, recklessness, negligence
▪ One of those levels must be proved w/ respect to each “material element” of offense, which may involve:
● The nature of the forbidden conduct (act)
● The result of conduct (result, causation) or
● The attendant circumstances
o Questioning the kind of culpability required must be faced separately with respect to each material element of the crime
MPC Section 2.02 (mental state)🡪most important
o Purposely: aim
o Knowingly: awareness (practical certainty)
o Recklessly: awareness of risk
o Negligently: should be aware of risk
The above mental states are defined with respect to:
o Acts: knowingly possessed drugs; intended to distribute
o Results: purposely caused death
o Attendant circumstances: knowing that the victim was a police officer
Purposely v. Knowingly
o Knowledge: being aware that your conduct is of the required nature
o Purpose: actor’s conduct was conscious object to perform an action to cause a particular result🡪knows that the
prohibited result is practically certain to follow from his conduct
o This distinction is important when dealing with specific intent
Knowingly vs. recklessly
o Both require conscious awareness of something, but the difference is near certainty vs. risk
Recklessly vs. negligently
o Both involve substantial and unjustified risks that are gross deviations from acceptable behavior
▪ Reckless: aware of risks, consciously disregard it
▪ Negligence: should have known of the risk
When looking at mental states, jury has to decide what D thinking
o Was he consciously aware of creating a risk?
▪ If no, not reckless conduct🡪instead, it’s negligent conduct
For reckless homicide🡪have to be consciously aware of the risk of death
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Recklessness assessment
o Involves conscious risk creation
o Being aware of a risk that is of a probability less than substantial certainty
▪ However, the risk has to be substantial in order for the recklessness judgment to be made.
▪ The risk must be unjustifiable
o Have to take the facts as D subjectively perceived them
o Given the facts/risk as D subjectively perceived them, was D’s action objectively unjustified (i.e., a gross
deviation from law-abiding behavior?)
o MPC defers to jury on moral weighing of the risks
o The jury must evaluate the actor’s conduct and determine whether it should be condemned
o What counts as gross deviation? 🡪Goes to jury
Negligence assessment
o Does not involve a state of awareness
o A person acts negligently when he inadvertently creates a substantial and unjustifiable risk of which he ought to be aware
o Liable if conduct is a gross deviation from the care that would be exercised by reasonable person in this situation
o Jury must find fault and must find that it was substantial and unjustified (both objectively examined)
Criminal vs. civil negligence
o Criminal negligence is worse than civil negligence
o Criminal negligence is gross negligence—a “substantial” risk amounting to a gross deviation from reasonable care.
Mental state requirement applies to all requirements and modifies whole phrase that follows
o Purpose usually applies to the action and the victim
▪ He didn’t purposely cause death of officer
o But not always b/c mental states can be defined separately
▪ Structure of the statute has to make it clear
● Example: comma may separate mental state from additional requirement
o There can be multiple mental states in statute
MPC Default Mental State (when silent)
o 2.02(3): When statute is silent about mental states🡪recklessness gets read in
▪ Recklessness or above will count
o Do NOT assume strict liability!
The “All Material Elements” Rule
o When not otherwise clear from structure/phrasing, assume mental state requirements extend to all material
elements.
o Example: Purposely transporting stolen property across state lines
MPC recklessness vs. negligence
o Difference is in which kinds of mistakes of factsare defense
o Negligence: facts assessed objectively, so only reasonable mistakes are defenses
Hope (purpose requirement) doesn’t mean saying ‘I hope.’ It means actually hoping
Differences between Common Law and MPC
Assumed minimum/default mental state:
- Knowledge under the common law
- Recklessness under the MPC (harsher)
Common law “intent” vs. MPC “purpose”
- CL “intent” includes MPC purpose and MPC knowledge
Willful blindness
- The MPC rule is much broader: encompasses more than just situations of willful blindness
MPC 2.01: REQUIREMENT OF VOLUNTARY ACT, OMISSION AS BASIS FOR LIABILITY,
POSSESSION AS AN ACT
(1) A person is not guilty of an offense unless his liability is based on conduct, which includes a voluntary act or the omission to perform
an act of which he is physically capable.
(2) The following are not voluntary acts within the meaning of this Section:
(a) a reflex or convulsion;
(b) a bodily movement during unconsciousness or sleep;
(c) conduct during hypnosis or resulting from hypnotic suggestion;
(d) a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.
(3) Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:
(a) the omission is expressly made sufficient by the law defining the offense; or
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(b) a duty to perform the omitted act is otherwise imposed by law.
(4) Possession is an act, within the meaning of this Section, if the possessor knowingly procured or received the thing possessed or was
aware of his control thereof for a sufficient period to have been able to terminate his possession.
MISTAKES OF FACT OR LAW
COMMON LAW/MPC
Mistake of factis only a defense if it negates themental state element of the crime
● Mistakes of fact negate mens rea
o If you’re mistaken about a key fact🡪“I made a mistake” is a valid defense
● Mistakes of fact that negates the MPC mental state:
o Purpose, knowledge, & recklessness mistake DONT have to be reasonable; just about what D honestly believe.
o Negligence, on the other hand, HAS to be reasonable
▪ Purpose: D not guilty if he made any mistake as to the fact (lack of required awareness)
▪ Knowledge: D is not guilty if he doesn’t know the fact (honestly but mistakenly). If knowledge means “awareness
of a high probability of a fact,”D is not guilty if he honestly but mistakenly failed to recognize a high probability of that fact’s
existence.
▪ Recklessness: D is not guilty if he honestly but mistakenly either (1) isn’t aware that there is a substantial risk;
or (2) believes facts that, if true, would amount to a justification.
▪ Negligence: D is not guilty if he reasonably and honestly (though mistakenly) believed either (1) that there
wasn’t a substantial risk; or (2) facts that, if true, would amount to a justification.
● Requires objective standard but it doesn’t mean that no mistakes are permissible
▪ Strict liability crimes: mistake of fact is NEVER a defense
Mistake of law:ignorance of the law is no excuse
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Exception 1: mistake of law is always a defense when it negates the mental state of a crime
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When the crime is defined to require awareness of a legal rule (look at Cheek)
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Ex. Some sort of mental state is required in the definition of a crime
▪
U.S. v. International Minerals: statute made it a crime for a person to knowingly violate a regulation of the
Interstate Commerce Commission regarding the transportation of corrosive liquids. Court held that the prosecution
must only prove that the actions D knowingly committed violated that regulation
▪
Liparota v. U.S.: a statute governing food stamp fraud said that whoever knowingly uses, transfers, acquires,
alters, or possesses coupons or authorization cards in any manner not authorized by the statute is subject to fine or
imprisonment. The court held that prosecution must prove that the D knew of the existence and meaning of the relevant
regulation; to do otherwise would be to criminalize a broad range of apparently innocent conduct.
▪
U.S. v. Ansaldi: D was charged with selling GBL (controlled substance). D knew he was distributing GBL
but didn’t know it was a controlled substance. Court held that he didn’t need to have knowledge of thelaw (drug
distribution is different from tax evasion). The court held that knowledge of, or intent to violate, the law is simply
not an element of this offense.
▪
U.S. v. Overholt: D was charged with willfully violating the Safe Water Drinking Act by unlawfully
disposing of contaminated wastewater. Court held that the case was governed by International Minerals🡪proof of
knowledge of the law is not necessary. Court upheld trial court jury instruction, which said that jury must find that D knew he
was doing something unlawful.
●
Exception 2: official misstatements of the law (official reliance)
o Common Law: Reasonable mistakes of law that occur as a result of misunderstanding or misreading are not defenses,
unless they are based on an official statement of law
o MPC 2.04(3)(b): affirmative defense if D acted in reasonable reliance on an official statement of law that is later found
erroneous🡪majority of jurisdictions have adopted this in some way (statute or common law)
o Examples of official misstatements include, judicial interpretations, agency interpretations, official permission given
specifically to D
o Traditional Approach of Official Reliance:
Hopkins v. State: D convicted of violating statute making it unlawful to erect or maintain any sign intended to aid in the
solicitation of performance of marriages. He argued that the State’s Attorney advised him before he erected the signs
that they wouldn’t violate the law
▪ Court said advice of counsel is no excuse for violating the law and can’t be relied upon as a defense🡪act is still
a violation of the law🡪ignorance of the law will not excuse its violation
● A person who commits an act which the law declared to be criminal cannot be excused from
punishment upon the theory that he misconstrued or misapplied the law
o MPC Approach of Official Reliance: adopts a limited defense for situations in which D reasonably believes that his
conduct does not constitute an offense🡪reliance defense
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Due Process Limitations: “Entrapment by estoppel” 🡪violation of due process to convict D for conduct that
government representatives had earlier stated was lawful. Can’t convict citizen for exercising privilege which the State
clearly told him was available to him.
Exception 3: Lambert Exception (lack of notice)
o Lambert v. California: convicted felon can’t be convicted of a criminal offense requiring him to register if he didn’t
know, nor should have known, of duty or consequences for failing to comply🡪violation of due process b/c no notice
▪
When Lambert was first made aware of the registration requirement, she was not afforded the opportunity
to comply and avoid criminal punishment.
o Failure to act may not be punishable under a criminal statute unless it is shown that the D knew or should have known
of the duty established by the statute and the penalty for failure to comply with the statute.
o
If you violate a criminal law but didn’t have fair notice of the law’s existence, you have a due process defense
▪
Grounded in the 5th/14th due process clauses
o
This exception is almost never followed but it is still good law!
▪
Unless duties are particularly obscure, we expect people to check into them
●
I.e. law is really recently passed
●
Personal factors taken into account🡪i.e. if you’re a law professor
o
MPC 2.04(3)(a): you have due process defense if you didn’t have fair notice of the law’s existence
o
●
KNOWLEDGE OF LAW AS MENS REA ELEMENT
●
Cheek v. U.S.: Cheek knew about law of taxes but didn’t pay b/c he thought they were being unconstitutionally enforced
o Any person who “willfully” attempts to evade or defeat the requirement that he pay a tax on his income shall be guilty of
a felony where it can be shown that he knows and understands the law.
o Court interpreted the word “willfully” to mean the D must be aware of some legal conclusions (wages are income), but
not others (income tax statute is constitutionally valid)
o It’s tax fraud if D “willfully attempts in any manner to evade or defeat any tax”
▪ What does “willful” mean?
● Willfully modifies the whole thing
● If you don’t know the tax is imposed by the title, you haven’t willfully evaded it
● Cheek’s argument is obviously wrong but other people make honest mistakes
o Don’t want those people to be on the hook
o There is no legal requirement that the belief be objectively reasonable
WILLFUL BLINDNESS
●
●
●
●
●
Willful blindness in Common Law:
o Deliberately avoiding knowledge of fact(while knowing of high risk that the fact is true) is treated like knowledge at common
law – basically conscious avoidance of truth.
▪ BUT some jurisdictions say that willful blindness is not the equivalent of knowledge—it’s just a type of
recklessness.
Willful blindness under the MPC
o MPC doesn’t speak directly to “willful blindness”
▪ BUT 2.02(7): Knowledge of a fact is satisfied by knowledge of ahigh probability of that fact.
● Easier test to satisfy: does not require conscious avoidance of truth!
Caveat on willful blindness
o The theory is about knowledge of objectively verifiablefacts—not predictions about the future!
o For knowledge with respect to a result, “practical certainty” is always required
U.S. v. Jewell: D was convicted of knowingly transporting 110lbs of weed in secret compartment of car. He said he didn’t know
the drugs were there, but there was circumstantial evidence that he was lying and deliberately avoided positive knowledge of the
presence of the drugs in order to avoid responsibility in the event he was caught. He wanted jury instructions to say that they
could only convict if he “absolutely, positively” knew the weed was there🡪BUT NOPE.
o Deliberate ignorance of the truth and having positive knowledge is equally culpable. MPC § 2.02(7) states “when
knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is
aware of a high probability of its existence, unless he actually believes that it does not exist.”
BASICALLY, if something is suspicious, you have a duty to inquire.
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STRICT LIABILITY AND INTERPRETING STATUTORY SILENCE
COMMON LAW
Default (knowledge) can be overcome in statutory-silence cases by clear evidence of legislative intent (Staples)
- Character of items regulated
- Severity of punishment
- Nature of offense under the common law (Morissette)
Exception for public welfare offenses (strict liability)
Statutory rape (Garnett)
MPC
Recognizes strict liability for offenses deemed “violations” only
The statutory text must itself make clear that strict liability is intended: no exceptions.
●
●
●
●
●
What counts as public welfare offense?
o Factors for: inherently dangerous item/activity
o Factors against: long sentencing range, or felony
Strict liability means no mental state requirement w/ respect to some material element (usually result or attendant circumstance).
There is a presumption against strict liability, except for public welfare offenses
o The presumption can be rebutted by clear evidence of Congressional intent to impose strict liability
People who adhere to moral principles, generally hate strict liability🡪you should only be liable for what you meant to do
Public welfare offenses relate to regulation of thesocial order (public rather individual is endangered)
o These offenses are less serious/stigmatized and carry only fines
o Public welfare laws require people to exercise care, or not act, when a specific duty is imposed. Many violations of these
laws, but merely create the danger or probability of injury, which the law seeks to minimize. As a result, regardless of the
intent of the violator, the injury and consequences treated as the same.
o Regina v. City of Sault Ste. Marie: A third category of offenses should exist between traditional criminal offenses and
absolute liability offenses, namely public welfare offenses where the mere act is a violation and there is no requirement
for the prosecution to prove a defendant’s mens rea
▪ Purpose of this rule: keep public safe while not punishing those who are entirely blameless
▪ Arguments FOR strict liability in public welfare offenses:
● Protection of social interests b/c they require a high standard of care and if people know that they will
be held strictly liable for committed such acts they will be more aware of their actions;
● Strict liability offences are efficient and effective ways of ensuring compliance with regulatory
legislation and the public interest with regard to such legislation outweighs the private burden;
● Strict liability offenses don’t carry stigma or penalties associated with conviction for a criminal offense
▪ Arguments AGAINST strict liability:
● It violates the fundamental principles of penal liability;
● It rests on assumptions for which empirical evidence has not yet been established;
● D still suffers losses as a result of conviction and public interest not outweighed by private interest.
o Morissette v. U.S.: D went to air force range and took bomb casings that were lying around, flattened them, and sold
them and was convicted of violating a statute that forbade knowingly converting government property. He said he knew
he was taking air force property but thought they had been abandoned.
▪ Congress held intent as an inherent element of the statute said to be in violation, and where congress omits any
mention of specific intent, specific intent is not to be eliminated. Thus, court held that crimes in violation of
plain regulatory law (unlike common law crimes) require mens rea as to the commission of the crime itself
▪ Rule: acts, which are inherently bad, including larceny, require the element of mens reaand any similar strict
liability statute will not be construed as eliminating the mens rea element.
o Staples v. U.S.: D was convicted for unlawful possession of unregistered machine gun in violation of Section 5861d of
the National Firearms Act. Statute doesn’t have any visible mental state element and he said when he got it, the gun was
semi-automatic but it got messed up and he didn’t know it could fire automatically. Court didn’t care b/c there was no
mens rea requirement in the statute
▪ SCOTUS said they cannot dispose of mens rea requirement🡪 some indication of congressional intent, express
or implied, is required to dispense the mens rea requirement
▪ Court wanted to limit strict liability of federal crimes to those involving items that were both dangerous and
highly regulated
▪ What is the default mental state if we don’t assume strict liability?
● “A conventional mens rea element…would require that the defendant know the facts that make his
conduct illegal.”
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Federal/ majority
MPC (minority)
KNOWLEDGE is required
RECKLESSNESS is required
…unless legislature clearly intended SL.
…unless the TEXT explicitly says SL.
SL can be inferred from silence for Public
Welfare Offenses.
No Public Welfare Offense exception.
CAUSATION
COMMON LAW
● Causation must be proven (and only matters) in result crimes, which are defined in terms of a result, e.g., homicide🡪death
● Two causation requirements under Common Law:
o Factual Causation: result would not have happened but for D’s act
o Legal/Proximate Causation: causal chain was not too long to be legally cognizable as a basis for criminal liability.
● Factual causation vs. proximate cause
o Factual: “but for” the defendant’s conduct, result would not have occurred
▪ Doesn’t require that D’s conduct be the only contributing factor b/c everything has multiple but-for causes!
▪ Outcome doesn’t need to be direct and natural result of D’s actions
o Proximate: legal construct designed to prevent liability when result of D’s conduct is seen as too remote or unnatural
▪ Victim’s injury must be a “direct and natural result” of D’s actions.
● Necessary to determine whether there was an intervening cause that superseded the defendant’s
conduct such that the causal link between the defendant’s conduct and the victim’s injury was broken.
▪ Superseding cause🡪not reasonably foreseeable🡪D not liable
● Example: medical negligence is never superseding cause (b/c it’s always foreseeable)
o BUT gross negligence is unforeseeable
▪ If intervening cause was reasonably foreseeable, the defendant’s conduct will be considered a proximate
cause🡪he’s still liable. If it was not reasonably foreseeable, the causal link is severed and the defendant’s
conduct is not regarded as a proximate cause🡪not liable.
● Responsive intervening causes are generally not superseding (unless they were coincidental AND
unforeseeable) b/c it’s foreseeable that if you shoot someone, someone else will try to save and fail
o Failure or refusal to rescue is NOT a superseding cause
▪ Foreseeable is an objective standard🡪is it the kind of chain of events that D reasonably should have foreseen?
● There is no universal test for determining if an intervening cause is also a superseding cause but here are some factors:
o De minimis contribution to social harm factor
o The intended-consequences doctrine
o The omissions factor
Proximate Causation
● Act🡪X🡪Y🡪Result
o X and Y are intervening causes
o They are only called superseding causes if they break the chain of causation, such that there’s no proximate causation
▪ Example: extreme negligence can break the chain of causation
● Even if intervening cause is not there responding to something you did, it still might not break the chain
● When does an intervening cause “supersede”?
o Generally, the most important factor (in some jurisdictions the only factor) is foreseeability.
o Foreseeability is an objective standard🡪NOT foreseeable🡪superseding
● The Six Rideout (Dressler) Factors (when intervening cause becomes “superseding” cause)
o De minimis: Intervening cause made only a minor contribution to the prohibited result🡪won’t break the causal chain even
if unforeseeable b/c it’s not a “but-for” cause
o Intended consequences: if D got the result he was trying to bring about, proximate causation will be satisfied even if the
causal chain to get there was unforeseeable and causal chain was not what he intended
o Omissions: Some jurisdictions hold that another person’s omission will never break the causation chain, even if
unforeseeable🡪if you put someone in danger, you can’t expect someone else to rescue them
o Foreseeability🡪generally the most important factor
▪ If intervening cause is foreseeable🡪does not break the chain
▪ If it’s not foreseeable🡪chain is probably not broken
o Apparent safety: once victim has reached a position of apparent safety, if he then leaves that position to put himself back
in danger, that breaks the chain of causation
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o
▪ Some courts hold that this is so even if the renewed danger was foreseeable.
Voluntary human intervention: intervening cause is more likely to be considered superseding (break the chain of
causation of original actor) if it involves voluntary human actions
MPC 2.03
● If you have the requisite mental state for a result crime and that result happens and you have but-for causation, there’s no break in
the chain: causation is satisfied.
- No proximate causation requirement separate from mental culpability unless there’s a statute that says there is (drafters
couldn’t agree; left it up to the states)
● 2.03(2) and (3): Transferred Intent – the mere fact that there’s a disconnect won’t defeat causation if it’s the “same kind of injury”
and “not too remote or accidental”
● 2.03(4): Strict liability – result must be a probable consequence, not just a foreseeable one
● Unlike common law, MPC has no proximate causation requirement separate from mental culpability
HOMICIDE
INTENTIONAL
KILLINGS
ACCIDENTAL
KILLINGS
MURDER
MANSLAUGHTER
(1) Premeditated
(2) Purposeful/Knowing, not
Premeditated
Voluntary Manslaughter (Heat of Passion/
EED)
•
•
•
“Depraved Heart” Murder
“Serious Bodily Harm” Murder
Felony Murder
Involuntary Manslaughter:
--Recklessness
--Negligence (aka “negligent homicide”)
MPC Homicide Hierarchy
● Intentional murder – premeditated or non-premeditated (purposeful/knowing) murders
● “Extreme indifference” murder – accidental murders (reckless)
o “Depraved heart” murder
o Felony Murder=variation of this
● Manslaughter (reckless) – voluntary, involuntary manslaughter
● Negligent Homicide – form of involuntary manslaughter
MPC CRIMINAL HOMICIDE (210.1)
(1) A person is guilty of criminal homicide if he purposely, knowingly, recklessly or negligently causes the death of another human 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, kidnaping or
felonious escape.]
(2) Murder is a felony of the first degree[but a person convicted of murder may be sentenced to death, as provided in Section 210.6].
§ 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 disturbancefor 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.
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INTENTIONAL MURDER AND PREMEDITATION
●
●
●
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Homicide is any criminally culpable* act or omission that causes the death of another.
o Culpable means with the mental state required for the particular type of homicide.
▪ Accidental deaths don’t usually lead to criminal conviction🡪not culpable b/c mens rea requirement not met
ALL murders are more serious than ALL manslaughters
Murder by degrees: many jurisdictions divide murder by degrees (BUT be careful w/ degree labels b/c not all jurisd. do this):
o 1st Degree: premeditated and intentional
▪ State v. Guthrie highlights distinction b/w 1st and 2nd degree murder
● D was being teased by coworker (who hit him on the nose w/ a towel) and D snapped and killed him
● Court held that to constitute 1st degree murder, D must have had some period of time between the
development of the intent to kill and the actual killing to indicate that the act was premeditated and
deliberate and not impulsive
o 2nd Degree: intentional (purposeful, knowing)
o 3rd Degree: unintentional (extreme recklessness)
MPC rejects the gradation of the degrees(doesn’t employ concepts of premeditation or deliberation)
o This approach is followed by a minority of jurisdictions, although some still use “degrees” for other reasons
PREMEDITATION
● Premeditation is prior consideration or planning
o BUT: No minimum length of time so considering for a moment may count!
o CAN’T be the product of “hot blood” 🡪i.e. excited mental state
● Majority approach: any interval of time b/w the forming of intent to kill and the execution of that intent, which is of sufficient
duration for the accused to be fully conscious of what he intended, is sufficient
● Minority approach: requires a meaningful interval of time🡪enough for reflection
● Deliberation is functionally treated the same as premeditation (together, they requires advance thinking and reflection)
o Morrin (Mich.): “To deliberate is to measure and evaluate the major facets of a choice or problem.”
o Some jurisdictions reject the premeditation distinction🡪they believe it’s just intentional – premeditation doesn’t matter
● People v. Anderson: evidence sufficient to sustain a finding of premeditation generally falls into 3 basic categories:
▪ 1) Planning activity; 2) Motive; 3) Manner of killing was so particular and exacting that the D must have
intentionally killed according to a preconceived design.
o BUT now California court says no specific combination of these classes of evidence is essential and other types of
evidence can suffice
● Actual premeditation is not always an appropriate requirement for identifying the most serious homicides🡪People v. Anderson🡪guy
killed little girl in passionate rage🡪not premeditated but very serious
● State v. Forrest🡪man intentionally killed terminally ill father and was convicted of first degree murder
● Some states have rejected premeditation as the basis for identifying murders that deserve the greatest punishment.
o This is why some jurisdictions reject degree distinctions🡪degree NOT always best for identifying most serious homicide
● Voluntary manslaughter: an intentional killing that would be murder, except that culpability is reduced because of passion and
provocation (or in some states extreme emotional distress (EED))
PROVOCATION
● Adequate provocation CAN reduce murder to manslaughter
● What provocations are adequate?
o Those that are “calculated to inflame the passions of a reasonable man.” (objective standard)
o Traditional common law examples:
▪ Walking in on cheating spouse (but many states no longer recognize this)
▪ Mutual combat
▪ Physical assault
● Should verbal provocation be enough?
o Girouard approach: words are never enough to turn murder into manslaughter (they must be accompanied by conduct
indicating a present intention and ability to cause D bodily harm)
▪ D and wife got into argument and she said some horrible things and he killed her (stabbed her 19 times)
● Only cases of extreme physical assault/battery on D, mutual fighting, D’s illegal arrest, injury or
serious abuse of close relative of D, or discovery of spouse’s adultery are adequate provocation
warranting murder be mitigated to manslaughter (these are NOT enough for self-defense)
▪ Exceptions: threats or words that reveal information about provocation may be enough (“I killed your child.”)
o Modern (but still minority) approach: No categorical rule about verbal vs. non-verbal provocation
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VOLUNTARY MANSLAUGHTER / REDUCTION FROM MURDER
COMMON LAW
● Voluntary manslaughter is an intentional killing that would be murder, except that culpability is reduced because of passion and
provocation (or, in some states, EED).
● To get voluntary manslaughter conviction, 1st have to prove murder but multiple elements must be proved for voluntary
manslaughter to succeed
● Prosecutor has burden of disproving at least 1 element of voluntary manslaughter to kick back up to murder
● Four requirements to reduce murder to manslaughter (COMMON LAW):
o Adequate provocation
▪ We DON’T take D’s individual/personal characteristics into account when determining whether provocation
was adequate (unlike MPC)
o Killing was done in the heat of passion: D who kills victim after a reasonable person in the D’s situation would have
calmed down can’t get a manslaughter reduction
▪ Factual determination
o No cooling time
o Causation (provocation must lead to the killing): provocation 🡪 passion 🡪 act
● Burden of proof:
o Prosecution has 2 burdens of proof/production
▪ Intentional killing
▪ At least one of the 4 manslaughter requirements aren’t met (if that affirmative defense has been raised)
● Difference between Guthrie and Girouard
o Girouard said the killing was done in hot blood due to VERBAL provocation (no psychiatric problems)
▪ Also argued that her provocation was enough (aka, he had good reason to be thrown into fit of rage)
● Why mitigate for manslaughter? Is there ever a good reason to kill someone without threat of serious bodily harm?
o This defense is NOT saying it’s ok to kill
▪ Still condemning people, just partially excusing the violence🡪saying “we understand your loss of self-control,
but we’re condemning the excess actions taken”
● Concession to human frailty🡪law is exercising some degree of empathy
● The classic voluntary manslaughter scenarios: “manly” violence
o Domestic Violence: men killing women who threaten their self-worth*
o Fights: men killing other men who threaten their honor by throwing a punch or by insults
o Does loosening the traditional CL standards make this problem worse?
MPC ON VOLUNTARY MANSLAUGHTER
●
MPC 210.3 (minority rule)🡪 Homicide, which would otherwise be murder…committed under the influence of extreme mental
or emotional disturbance for which there is reasonable explanation or excuse. [R]easonableness … shall be determined
from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.
o MPC has NO “no cooling time requirement”: acknowledgment that EED isn’t necessarily spontaneous
o MPC doesn’t categorically exclude verbal provocation
o MPC is mostly about level of distressD is facing (EED)
o Many more cases will get to jury under MPC🡪place moral judgment in hands of the community
o People v. Casassa: D was obsessed with his neighbor and she rejected him so he killed her. He claimed he was under
EED sufficient to mitigate homicide to manslaughter
▪ Whether D was so emotionally disturbed as to lessen murder to manslaughter involves both an objective and
subjective analysis
● Subjective as to whether or not the defendant was in fact under an extreme emotional disturbance, but
objective as to whether or not the disturbance was reasonable.
● Court found that his disturbance wasn’t reasonable, so conviction doesn’t get mitigated BUT he got to
make his argument to jury!
● Viewing the subjective, internal situation in which the D found himself and the external circumstances
as he perceived them at the time: assess from that standpoint whether the explanation or excuse for
his emotional disturbance was reasonable
o Much friendlier to defendants b/c it doesn’t refer to provocation at all
▪ That’s why Casassa gets to make argument to the jury
▪ Like “insanity light”🡪no intense hurdles to cross like in insanity defense
o State v. White: couple divorced and wife got house but couldn’t make payments b/c husband wasn’t giving her child
support and financial assistance. Because of the stress, she hit him with her car, almost killing him🡪she argued EED
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▪
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Court held that EED defense may be based on a significant mental trauma that has affected the defendant’s mind for a
substantial period of time🡪accepted her affirmative defense and reversed lower court’s denial
▪ recognizes that EED not always spontaneous
o State v. Elliot: D was scared of brother for some reason; then went to his house and killed him. He was convicted of
murder but Connecticut Supreme Court reversed holding that the state’s statute (based on MPC) instructions on EED
were required🡪the defense does not require a provoking or triggering event
▪ Just has to be brought about by a significant mental trauma that caused the defendant to brood for a long period of time
and then react violently, seemingly w/o provocation – recognizes that EED not always spontaneous
o Boyle v. State: D shot and killed his partner b/c she was in a lot of pain (assisted suicide)
MPC: individual traits and circumstances are potentially relevant to all aspects of this inquiry🡪up to the jury to weigh them
o This includes personal handicaps and external circumstances (blindness, traumatic shock, extreme grief)
o Things that may count: personality features like fearfulness or “exceptionally punctilious sense of personal honor”
o Thing that doesn’t count: idiosyncratic moral value
Jury more likely to side with something they can empathize with
MPC wants moral judgments to go to the jury
This test grew out of the heat of passion manslaughter test. MPC EED test isdifferent from “heat of passion" manslaughter test🡪
homicide doesn’t necessarily have to be basically contemporaneous to the triggering event (required under “heat of passion”)
20 states now use some version of the EED test
REASONABLE PERSON REQUIREMENT
● MPC solution: whether D acted “under influence of EED for which there is reasonable explanation or excuse.”
o Determination of reasonableness shall be made from the viewpoint of reasonable person in actor’s situation under the
circumstances as he believes them to be
▪ External circumstances should be taken into account: blindness, shock from traumatic injury, extreme grief
▪ Idiosyncratic moral values are NOT part of the actor’s situation and will not be taken into account
● Should nationality and cultural background be taken into account?
o Queen v. Zhang: girlfriend admitted that she had been working as a prostitute and guy killed her in a rage
▪ D said in Chinese society, her admission would justify his act but judge told jury that his cultural background
was not relevant to the question whether “an ordinary man of ordinary self-control would have done what the
appellant did.” Court of appeals upheld and affirmed conviction for murder
● Battered Women Syndrome
o State v. McClain: D shot and killed bf of 9 years(troubled relationship and he beat her twice earlier in the relationship).
Psychologist testified that she suffered from battered women syndrome and had a mental breakdown.
▪ Court held that evidence of battered women syndromewas irrelevant on the question of whether the
victim’s conduct was adequately provocative b/c that inquiry requires application of ‘reasonable person’ test
▪ However, some say that the objective test may be satisfied by considering the situation of the ordinary person
who is a battered spouse🡪have to look at how someone would have reacted to being in that situation
● Mental disorder
o State v. Klimas: D shot and killed wife after months of intense conflict (she got a new man and wanted a divorce).
▪ He wanted to introduce psychiatric testimony b/c he had severe depression that overwhelmed him
● Court held psychiatric evidence was inadmissible b/c irrelevant to reasonable person test
o People v. Steele: D was a traumatized Vietnam vet and snapped when he heard the sound of an approaching helicopter
▪ Trial judge ruled the evidence that he had been traumatized inadmissible
● Partial individualization
o D.P.P. v. Camplin: 15 y/o killed an older man in response to sexual abuse and taunting
▪ Trial judge said the standard had to be that of a reasonable man, NOT reasonable boy🡪WRONG
▪ Court held: have to use standard of someone with similarcharacteristics (similar age, sex of the accused)
● Court said jury should simply be left to decide whether, in all the circumstances, “there was some
characteristic of the accused which it would be unjust not to take into account”
● Can individual characteristics be taken into account when attempting to determine adequacy of provocation?
o Common law: NO, adequacy of provocation is judged objectively, by how reasonable man would’ve responded
▪ Camplin: a modern variation on the common law approach
● D’s characteristics bear on the gravity of a verbal provocation
● More controversial: Some characteristics (age? sex?) might also bear on how much self-control we expect
D to exercise🡪but mere “pugnaciousness” doesn’t count.
o Individual characteristics can speak to the factual question of whether D was provoked
o MPC: YES (except idiosyncratic moral values)
● Reasonable man standard doesn’t mean the person acted reasonably – court is merely accommodating human frailty
● Criticisms of class voluntary manslaughter doctrine:
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o
o
1 size fits all: voluntary manslaughter ignores real differences
Gendered Conception of Ordinary Violence
EXTREME RECKLESSNESS MURDER (“Depraved Heart” / Risk-Taking Homicide)
(2nd DEGREE MURDER)
COMMON LAW
Extreme-recklessness murder and Depraved-heart murder
● Recklessness is conscious disregard of substantial, unjustifiable risk amounting to gross deviation from law-abiding conduct
o Justification/gross deviation judged objectively, but based on D’s subjective view of facts.
● Risk-taking homicide requires implied malice and callousness toward the value of life
● To get to murder, a conscious disregard of a risk of death is required
o D must’ve subjectively known that she was taking an unjustifiable risk to human life
▪
●
●
●
●
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Minority rule: some states say it’s enough to show that the D should’ve been aware of the serious risk to human
life (negligence)
The conscious disregard does not need to be of a high probability of death
o D simply has to have shown a "base, antisocial motive and wanton disregard for human life." This is an objective test,
not a subjective one. Sometimes consciously disregarding even a relatively small risk can demonstrate this disregard.
There’s something more about your attitude that’s required: your level of callousness toward life must make you especially
deserving of the label “murderer” (make you morally comparable to an intentional killer) (retributivist)
o For the jury to determine
Commonwealth v. Malone: kids were playing Russian roulette and D killed his friend🡪convicted of 2nd degree murder but said he
only deserved involuntary manslaughter
o When individual commits an act of gross recklessness, for which he can reasonably anticipate that death is likely to
result, he exhibits that cruelty, recklessness of consequences, and a mind that disregards social duty.
▪ D intentionally committed an act in reckless and wanton disregard of the consequences that might result so it
constituted murder b/c malice in the sense of a wicked disposition is evidenced by the intentional doing of an
uncalled-for act in callous disregard of its likely harmful effects on others.
▪ His motive doesn’t matter
People v. Moore: D was driving recklessly, killed one person, hurt another person, and just kept driving but said he didn’t intend to
kill anyone.
o Regardless of motive, in California, D may be convicted of second-degree murder if it is shown that (1) he was aware of a
risk of death, (2) he nevertheless acted with a wanton disregard of the high probability of death, and (3) death resulted.
▪ Malice is implied in such situations🡪D just didn’t care that people could be hurt by his recklessness
People v. Knoller: D had dogs that she knew were dangerous. She left dog out and it killed neighbor.
o To be convicted for second-degree murder, which is based on a theory of implied malice, it must be proved that the
defendant had a conscious or willful disregard of danger to human life (serious bodily injury is NOT enough, and
awareness that conduct has high probability of resulting in death is TOO much)
MPC 210.2, 210.3, 210.4: Reckless Manslaughter
MPC 210.3(1)(a): Ordinary Recklessness = Manslaughter
● Homicide committed “recklessly” (no added element of extreme indifference)
● Hall: killed another skier when they collided b/c he was going too fast. He argues it’s not manslaughter b/c the thing he’s doing is
not dangerous enough to amount to gross deviation b/c people do it all the time
o In Hall, he doesn’t lose control, he’s deliberately going fast
o Hall’s clearly excessive speed, lack of control, and bad technique constitute the rare but substantial risk that death would
result from skiing. Second, because Hall’s fast skiing served no purpose but his own pleasure, the substantial risk of
death was not justified. Third, Hall’s extreme violation of his statutory duty of care while skiing could constitute the
gross deviation from the standard of care required for the charge. Finally, Hall’s experience and training could support a
reasonable inference that he consciously disregarded the substantial risk of death.
MPC 210.2(1)(b): Recklessness + Extreme Indifference to the value of human life
● Not substantively different from Common Law “Extreme Indifference” Manslaughter
● About the attitude being demonstrated (requires a special callousness)
● Jury question
DIFFERENCES between COMMON LAW v. MPC
The risk required:
● Common law: conscious disregard of a “risk of death”
● MPC: conscious disregard of a “substantial and unjustifiable risk” (that’s a gross deviation from the standard of conduct a
law-abiding person would observe in the actor’s situation) (+ extreme indifference to the value of human life)
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INVOLUNTARY MANSLAUGHTER
COMMON LAW
Involuntary Manslaughter
● Williams and civil negligence standards
● State v. Williams 🡪 NOT good law🡪state now requires gross negligence standard
o Omission case🡪charged with failing to get medical help for baby
o Is simple (civil) negligence enough to permit conviction for manslaughter?
▪ Yes! The statute didn’t require gross negligence
● Any action that would be a tort becomes criminal
o WA soon changed its manslaughter statute to require gross negligence.
Few states today have homicide liability based on civil negligence—if statute does not say “gross”
or “criminal,” most courts read it in.
▪ States now use the following approaches instead:
● Two different homicide theories for reckless and negligent killings (MPC approach)
● Recklessness for manslaughter; no lesser theory (voluntary, involuntary manslaughter)
● Gross negligence for manslaughter (negligent homicide)
● Jurisdictions vary as to whether recklessness or criminal negligence is required
MPC Requirements for Involuntary Manslaughter
● Was there conscious substantial risk creation?
● Was the risk unjustifiable?
NEGLIGENT HOMICIDE
●
●
MPC Negligent Homicide (210.4) (less than manslaughter)
o Negligent: Should have known of substantial and unjustified risk of death—actions were gross deviation from duty of care.
o The negligence standard is “should have known”
▪ Saying “she did know” is a factual matter
● Knoller case is about what she actually did know
Negligent Homicide = lesser crime than Manslaughter.
o Difference: whether the defendant was aware v. should have been aware of the unwarranted risk he was creating
o A killing is manslaughter if the actor was reckless, that is, consciously disregarded a substantial and unjustifiable risk
that his conduct would cause the death of another and if the risk was of such a nature and degree that, considering the
nature and purpose of his conduct and the circumstances known to him, its disregard involves a gross deviation form
the standard of conduct that a law=abiding person would observe in the actor’s situation
o A killing is negligent homicide when a person should have been aware of such a risk
FELONY MURDER
●
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●
●
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Is creating a risk of death in the context of anothercriminal act more culpable than creating a risk of death in the context of an
innocent or less culpable act?
o Felony Murder Rule says YES
Common Law Felony Murder Rule: Any killing committed in course of committing or attempting a felony is murder.
o This doctrine imposes liability for murder whether a felon kills intentionally, recklessly, negligently, or even non-negligently🡪strict
liability (no mental state requirement)
o The Mental State for Felony Murder
▪ NO mental state requirement, except for that of the underlying felony🡪makes homicide strict liability
▪ Felony murder statutes hold felons strictly liable for deaths (that result in commission/attempt of felony)
Felony murder rule is controversial because it leads to very harsh sentences.
Back in the day, there were only a FEW felonies, and all triggered the death penalty
o Back then, transferring intent to commit one capital felony to another capital felony probably made some sense
▪ Now, crimes have different punishments so it doesn’t make a lot of sense
What degree is felony murder?
o Majority rule: 1st DEGREE
o Minority approaches (MPC):
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▪ Equivalent to depraved-heart murder (e.g., MPC) – 2nd Degree
▪ Depends what the underlying felony is (e.g., CA)
Three types of modern limits on Felony Murder Rule
o Limits on which felonies qualify
o The merger doctrine
o “In furtherance”/ proximate causation
What felonies qualify?
o Two approaches:
▪ Specific list (original common law list and others)🡪placing in the hands of legislature; or
▪ “Inherently dangerous felonies”🡪how doctrine was originally understood🡪placing in the hands of courts
▪ Alternate approach: “As Committed” (majority)
● In majority of states, inherent dangerousness is NOT evaluated in the abstract.
● Instead the question is just whether, as committed, the act was dangerous to human life.
▪ 2nd Degree Felony Murder: other “inherently dangerous felonies”; judicially created (stare decisis)
Note: misdemeanor manslaughter is causing death in perpetration of a misdemeanor🡪form of (involuntary) manslaughter
Causation Problem in Felony Murder Rule
● In felony murder, it must be shown in all cases that defendant’s conduct caused a person’s death
o “But for” the felony, the death would not have occurred and
o Result must have been the natural and probably consequence of the defendant’s action OR it must have been foreseeable🡪not a
mere coincidence or the intervening
● There’s always a causation problem🡪what if the person you’re trying to rob kills an innocent person or accomplice? You were the
‘but-for’ cause, but should you be held liable for murder?
o Most jurisdictions wouldn’t hold you liable
o What if you use innocent bystander as a shield and your victim kills him?
▪ Some states MAY hold you liable
● People v. Stamp: D robbed Carl Honeyman at gunpoint and then fled. Honeyman began suffering chest pains and died of a heart
attack (robbery was shock to his system). D was convicted of first-degree murder.
o Court said felony murder is not limited to those deaths that are foreseeable🡪felon is held strictly liable for all killings
committed by him or accomplices in the course of a felony
▪ Homicide has to be the direct causal link of the felony🡪doesn’t matter if death was natural or probable consequence🡪as
long as victim’s predisposing condition is not the only substantial factor in the death
o Robber doesn’t have to know of preexisting health conditions to be found guilty of felony murder🡪as long as life is
shortened as a result of the felonious act it doesn’t matter that the victim might have died soon anyway
o RULE: felony-murder rule imposes SL for killings that result from commission of a felony,regardless of
whether the felons knew or should have known that their conduct was endangering life
o This case is harsh:
▪ No mental state requirement🡪strict liability with respect to consequence of death
▪ No proximate cause requirement
▪ Court is not looking to see if death was foreseeable
● King v. Commonwealth: King and copilot were transporting 500lbs of weed in a plane and crashed🡪copilot died but King
survived🡪he was convicted of felony murder 🡪 less harsh than Stamp
o Appellate court reversed b/c the drug distribution crime was not the proximate cause of the death
▪ ‘But for’ requirement was met, but crash was not foreseeable result of the felony
“In Furtherance”/Agency Theories (a limit on Felony Murder)
● “In Furtherance” Theory (some jxns): Felony-murder rule applies only when act of killing is done infurtherance of felony
o State v. Canola: D robbing store with friend; storeowner killed friend. Killing was not in furtherance of the crime.
▪ Traditional view of the felony-murder rule: it does not extend to a killing if directly attributable to act of person
OTHER than defendant, or those associated with him in the unlawful enterprise.
▪ Rule of Law: Defendant is not subject to application of felony-murder rule when a death of a co-felon results
from a resisting victim (death of co-conspirator or 3rd party results from act of another 3rd party).
● Agency Theory: person is responsible only for his own actions or those who are acting with him in felony and who are,
therefore, his “agents.” This is a traditional view.
● Some jurisdictions merely require proximate causation.
Duration of the Felony (Attempt, Escape)
● The felony murder rule applies while D is attempting a crime or escaping from the scene.
o But how long can escape take?
▪ Until D comes to rest or have found safe haven
▪ If someone kills someone while making getaway 🡪 might be considered “in furtherance” of the felony
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▪
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But if the accident happened after getaway was complete, might be guilty of only involuntary manslaughter or
no crime at all
People v. Gillis: D tried to break into someone’s house, but then abandoned attempt and leaves. D then was speeding away from
cops chasing him and collided with another car, killing 2 occupants🡪court ruled that he was fleeing from the burglary and was
found guilty of first-degree murder.
Victim-as-Shield Cases
● State v. Canola: while holding that D couldn’t be liable for death of co-felon by intended victim of a robbery, court also held that
the result would be different if deceased were used as a shield
o A defendant is not subject to the application of the felony-murder rule when a death of a co-felon results from a
resisting victim (i.e., death of co-conspirator or 3rd party results from another 3rd party).
o Modern criminal jurisprudence favors restriction rather than expansion of the felony-murder rule. Thus, it would be
regressive to extend application of Felony-Murder rule beyond traditional limitation to acts by D and his
accomplices to lethal acts of 3rd persons not performed in furtherance of the felonious scheme.
▪ BUT death of a co-felon may be classified as a justifiable homicide & not within purview of statute.
Limitations on the Predicate Felony (as integral part of homicide)
● Merger Rule (adopted by all jurisdictions in some form)
o Felony murder does not apply if underlying felony is an integral part of the homicide(e.g., battery that causes the
death🡪predicate felony must have another purpose aside from causing death!)
▪ If D commits a single act that simultaneously fulfills the definition of two separate offenses, merger will
occur. Lesser of the two offenses will drop out, and D will only be charged with greater offense.
o Most courts agree that if the underlying felony is assault or mayhem, the merger occurs.
▪ We say that the battery “merges” with the homicide.
o People v. Chun (CA): D purposely fired shots into another car and someone was killed.
▪ Shooting at occupied vehicle is assaultive in nature and thus can’t serve as underlying felony for purposes
of felony-murder rule.
▪ When underlying felony is assaultive in nature, felony merges with the homicide and cannot be the
basis of a felony-murder instruction (the 2 acts are too closely related).
o In order to determine whether crime merges, court will focus on elements of crime, not the
particular facts.
o Opposite of “inherently dangerous rule”🡪which says whole act always has to be inherently dangerous
▪ If any element makes reference to something that’s assaultive, whole statute is assaultive
o Purpose of Merger Rule:
▪ Without it, all negligent homicide becomes murder 🡪 Every type of homicide would be murder.
▪ Want to keep distinctions between culpability.
▪ Without the rule, it could result in harsher punishment for D than another D who intends to kill or assault
another.
o Some felonies that merge basically everywhere
▪ Other homicide charges for the same death.
▪ Crimes entailing direct attacks on a person, intended to physically harm, that end up causing death (e.g., assault)
▪ BUT: felonies like rape and arson do not merge – entail distinct harms/distinct criminal purposes not
subsumed by the death.
● “Inherently Dangerous” Felony Rule
o Most courts limited reach of felony murder to felonies involving violence or dangerousness
o Hines: D (convicted felon) was drunk and went turkey-hunting with friends. D shot and killed his friend thinking he was
a turkey.
▪ D intentionally fired his shotgun intending to hit a target. D took an unsafe shot at dusk through heavy foliage
at a target he believed was, but had not confirmed, was a turkey. Under circumstances, Hines’s violation of the
prohibition of a firearm by a convicted felon created a foreseeable risk of death.
▪ Dissent: D’s possession of shotgun was not inherently dangerous and although his conduct may have been
negligent, his act didn’t create a high probability that death would result or that he had a life-threatening state of
mind. Death was clearly a tragic accident. D’s sentence of life imprisonment does not fit his culpability.
▪ Rule of Law: Possession of a firearm by a convicted felon is an inherently dangerous felony and may serve as
underlying felony for a criminal charge of felony murder.
o Dangerous as defined “In the Abstract” by statute
▪ If, most of the time, it’s not dangerous to human life, it’s not considered dangerous in the abstract
▪ People v. Phillips (CA): In the Abstract.
● Chiropractor deceived parents of dying kid who had eye cancer, saying he could cure her. When she
died, he was charged with grand larceny (taking their money knowing he couldn’t cure her) and felony
murder
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o
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Court ruled that grand larceny “in the abstract” is not a dangerous felony🡪not charged with felony
murder
● Only felonies that are inherently dangerous to life may serve as underlying felonies to felony-murder rule.
o 1st Degree Felony Murder: legislatively specified – arson, rape, robbery, burglary,
mayhem, lewd acts with a minor
▪ People v. Henderson: D took someone hostage and held gun to his head. Then D accidentally shot and killed
bystander
● Not felony-murder b/c false imprisonment does not necessarily involve the danger to life required for
felony-murder 🡪 act has to be abstractly dangerous, not as committed dangerous
o Dangerous on the particular facts (as perpetrated)
▪ Most jurisdictions will permit felony (even nonviolent felony) to qualify for felony-murder if it is committedin
a dangerous way
▪ Example: If D clearly perpetrates felony of grandlarceny in a way to endanger the life of the victim
▪ If the jury finds that D perpetrated felony in question in a dangerous way, they can surely find that he was
aware of risk and acted recklessly and w/ a depraved heart 🡪 if this was the case, it establishes mens rea and
makes felony murder rule unnecessary (though depraved heart = 2nd degree murder)
o What does “inherently dangerous” mean?
▪ Some examples of inherently dangerous felonies recognized by CA courts:
● Shooting at an inhabited building
● Poisoning with intent to injure
● Arson of a motor vehicle
● Grossly negligent discharge of a firearm
● Manufacturing methamphetamine
● Kidnapping
▪ Some felonies that have been found NOT inherently dangerous in CA courts:
● Practicing medicine w/o license under conditions creating risk of great bodily harm, serious physical or
mental illness, or death.
● False imprisonment by violence, menace, fraud, or deceit.
● Possession of a firearm by a convicted felon.
CA Felony Murder rule is very strict 🡪 they’re trying to constrain the rule
o Based on abstraction
o They don’t like the second-degree FM rule
Statutory Felony Murder
o Legislatures have listed number of felonies that can serve as predicate for 1st Degree Felony Murder
▪ These include: rape, kidnapping, robbery, arson, and burglary
MPC Approach to Felony Murder
o Basically, MPC effectively abolishes Felony Murder doctrine in majority of cases(severely limits doctrine)
o MPC 210.2(b)
▪ Presumed malice theory:
● 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.
▪ Limit through wording: requires “homicide” (not just death), which requires a culpable mental state
● So, under MPC, FM isn’t a purely strict liability crime . . . it requires at least negligence (i.e.
negligent homicide can become murder via association with one of specified felonies)
o MPC severely limits Felony Murder doctrine, allowing its application only in cases involving: robbery, rape, arson,
burglary, or felonious escape
o MPC Comment to 210.2 raises a presumption that D was murderously reckless with regard to possibility of death
▪ That presumption is rebuttable by D 🡪 with enough evidence, prosecution must prove the presumed fact
(mens rea) beyond a reasonable doubt
Differences between MPC and Common Law
● Mens rea requirement:
o Common law: homicide requires no mens rea when performed during the perpetration of a felony (homicide becomes
strict liability)
o MPC: homicide requires at least negligence
Policy
●
Felony murder is a powerful (and controversial) tool for prosecutors
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o Can get 1st or 2nd degree murder for accidents
Why do we have the felony murder rule?
o To deter the felonies from happening at all
o Basically saying, if you’re going to commit felony, BE CAREFUL
▪ People who engage in felonies (especially risky ones) should be held responsible if they commit a greater harm
than they anticipated🡪they already demonstrated mens rea of ignoring social mores and law by commit felony
o People v. Washington: the purpose of the felony-murder rule is to deter felons from killing negligently or accidentally by
holding them strictly responsible for killings they commit or result from conduct
o Tomkovicz: primary justification for felony-murder rule is deterrence🡪threat of murder conviction for any killing in
furtherance of a felony may induce felon to forego committing felony itself
▪ Or perhaps goal is to encourage greater care in performance of felonious acts
▪ However this creates harsh punishments w/o proof of fault
o Fletcher: a wrongdoer must run the risk that things will turn out worse than he expects
Courts are generally critical of this doctrine, but the rule is still viable in all but a few states
RAPE
Rape is the taking of sexual intimacy with an unwilling person by force or without consent
Common Law Definition of Rape
● The traditional common law definition:
o Carnal knowledge of a woman forcibly and against her will—Blackstone
o Two original key elements that are still important today (except in statutory rape):
▪ Force
▪ Non-consent
o Vast majority of states still require both defendant’s force + victim’s non-consent before an act of sexual penetration
becomes a felony 🡪 non-consent by itself as NOT enough
MPC Definition of Rape
● 213.1(1): Rape
o “He compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to
be inflicted on anyone”
o Strong force requirement
o No non-consent requirement or resistance requirement
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213.1(2): Gross Sexual Imposition
o Lower-grade felony
o “He compels her to submit by any threat that would prevent resistance by a woman of ordinary resolution”
▪
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Objective standard
Marital rape is not a crime
o Just about all states criminalize this now
It’s only 2nd degree rape for acquaintance rape (e.g., if the victim was on a date with D or if she’d previously had sex with him)
Victim promiscuity is a complete affirmative defense to abuse of power sexual crimes (i.e. sex with minors or prisoners)
FORCE
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Most states still have distinct force requirement
Force was generally considered to consist of physical compulsion or violence that effectively subdued the woman
In most states, resistance is no longer formally required, but courts continue to consider resistance (or its absence) as highly
probative on consent element
State v. Rusk: D said she didn’t resist the sex b/c she was scared
o In a charge of rape, lack of consent may be established by proof of resistance or by proof that the victim failed to resist
due to a genuine and reasonably grounded fear.
▪ BUT If victim has unreasonable fear and D knows it, he may be held accountable🡪can’t exploit someone’s fear
o Force requirement is intertwined with consent🡪Force makes her acquiescence not valid consent
o Court is not adopting affirmative consent here
▪ Passive acquiescence could count as consent
o Basically, this case said D can be convicted of rape even if he never explicitly threatened force and victim made no effort
to resist. Important factor is whether there was proof that victim's fear was reasonable.
▪ This decision implies that mens rea is not a requirement for a conviction for rape.
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Traditional approach (Rusk Dissent): prosecution must prove physical force, or an implicit or explicit threat thereof, sufficient
to overcome physical resistance (maybe even “to the utmost”)
o Force must be beyond that inherent in sex act itself
o Resistance requirement (Rusk Dissent)
▪
o
To justify a rape conviction, the evidence must warrant a conclusion either that the victim resisted and her
resistance was overcome by force or that she was prevented from resisting by threats to her safety.
If it’s a threat (constructive force) and the victim declines to resist out of fear, that fear must be reasonable
▪
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Threats can be implicit: if the totality of the circumstances gives rise to a reasonable inference that the
unspoken purpose of the threat was to force the victim to submit to unwanted sexual intercourse
Intermediate approach (Rusk Majority): although there must be force or a threat sufficient to overcome resistance, verbal
resistance is enough (still a force requirement; still an affirmative resistance requirement)
o A threat can be inferred if D’s actions and/or words, in totality of the circumstances, are calculated to create fear –
essentially, the deliberate creation of a coerciveenvironment can be force (although there’s a willingness to infer a
coercive environment . . . will do it from more subtle things, like “look in eyes”)
o Rusk Majority overrules Rusk Dissent: reasonableness of victim's apprehension of fear was plainly a question of fact for
jury to determine
Modern (but minority!) approach: in the absence of affirmative and freely given consent (or a reasonable belief that such
consent was given), the sex act itself is an act offorce – no additional force is required (M.T.S.)
o M.T.S.: the physical force requirement is met simply by an act of non-consensual penetrationb/c sex without consent
is itself a forcible act
▪ Only AFFIRMATIVE CONSENT counts
▪ BUT, consent can be expressed both verbally and physically, and can be demonstrated by a showing that a
reasonable person would have thought that the victim had consented.
▪ In M.T.S., victim did not verbally consent to intercourse and jury concluded that under the circumstances, she
did not consent to intercourse by her conduct either.
NON-CONSENT AND MENS REA
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The role of consent in rape cases🡪rape is ALWAYS about consent
o Valid consent is always a complete defense to rape
▪ D doesn’t have to prove valid consent because valid consent is NOT affirmative defense
● Prosecutor just burden to prove lack of valid consent(as element of rape)
o Different rape theories require prosecutor to prove either (attendant circumstance elements):
▪ Victim did not voluntarily consent, or
▪ Victim was not legally capable of valid consent
Consent is sometimes seen as a state of mind and sometimes seen as an action
Most jurisdictions don’t require D to know that V didn’t consent
Traditional Common Law Approach to Consent (lots of states): negligence
o You should have known that there was a risk that the person doesn’t consent
o Only reasonable, mistaken confidence in consent = defense
o Lots of states require recklessness (mistake as to nonconsent is a defense, even if unreasonable (subj.); Morgan)
o Only one state (OH) requires purpose (mistake as to nonconsent is a defense, even if unreasonable . . . even if D knew
there was a substantial risk of nonconsent)
Minority rule (about 10 states): the MA approach (Ascolillo and Simcock)
o Forcible rape: D has sexual intercourse or unnatural sex with a person, and compels such person to submit by force and
against his will, or compels such person to submit by threat of bodily injury
o Statutory silence, court in Ascolillo infers strict liability for forcible rape (NO mental state requirement)
▪ Mistakes about whether victim has consented are NEVER a defense to rape, even if reasonable
o Policy: strict liability stands with victims and could help deter future rapes🡪incentive to be super careful
Other approaches include:
o Recklessness (lots of states)🡪 you’re aware of arisk that person doesn’t consent and disregard risk
o Purpose: i.e., awareness of attendant circumstance (Ohio)
MPC Approach to Consent: NO non-consent requirement
Statutes on Rape
o What if a forcible rape statute is SILENT on CONSENT?
▪ It doesn’t matter. Non-consent will be read into the force requirement – one cannot “force” someone to
have (genuinely) consensual sex.
o What about rape statues SILENT on FORCE and CONSENT?
▪ Example: “sexual intercourse with a person under age 16”
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▪
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Nonconsent need not be proven because the law presumes consent would be legally invalid – the victim
lacks capacity to consent
o Nonconsent will be read into force requirement because consensual sex is never rape
o If no mental stateis specified by a statute about common law crimes 🡪 “knowingly” is read in
o Statutory interpretation dilemma
▪ Majority of states’ rape statutes are silent as to mental state
▪ Courts are left to interpret the meaning of this silence
Mistakes of Non-Consent
o What mistakes negate a recklessness mental state in rape cases?
▪ Honest (even if unreasonable)belief that there was no substantial risk of nonconsent
▪ If D was confident that V consented, then he was not reckless
o What mistakes negate a negligence mental state in rape cases?
▪ Honest and reasonable belief that there was no substantial risk of nonconsent
▪ So if D was confident that V consented, but shouldn’t have been, he was negligent
Means of Consent
o Possible conceptions of nonconsent:
▪ Verbal resistance plus other behavior (totality of circumstances approach)
▪ Verbal resistance alone (no always means no)
● Wisconsin statute and M.T.S.
▪ Verbal resistance or passivity, silence, or ambivalence (anything other than affirmative permission by words or
conduct)
▪ All words and actions other than express verbal permission (everything other than saying yes)
o In most states, there is no rule that consent must always be verbal or even affirmatively given to count as a defense
o Many courts and contemporary statutes presume consent in the absence of some affirmative expression of
unwillingness. And some jurisdictions say that a verbal no does not necessarily mean non-consent.
▪ Some states say that victim has to clearly express that she didn’t want to engage in the act AND a reasonable
person in the actor’s situation would have understood those words and acts as an expression of lack of consent
under ALL circumstances
o The jury evaluates consent issues based on the totality of the circumstances
o Possible new rules on means of consent
▪ No means no: after verbal “no” (or physical resistance conveys non-consent), consent can’t be assumed until:
● A subsequent verbal “yes”
● Or maybe unambiguous physical conduct indicating consent
▪ Lack of yes means no(affirmative consent requirement): consent can’t be assumed until a verbal “yes”
▪ Possible modification: physical conduct clearly indicating consent is enough
● BUT passivity never indicates consent
Rape by Fraud
o Fraud in the factum: sex with partner who “is at the time unconscious of the nature of the act, and this is known to the
accused.” (Boro)
▪ Victim is unaware that sexual penetration is happening
▪ Only fraud in the factum counts as rape (Example: D tells victim it is a medical exam)
▪ Post-Boro California Statute
● New crime, less serious than rape, requiring:
o Inducing consent via fraud
o Intentionally causing fear, AND
o Fraudulent representation “would cause a reasonable person in like circumstances to act
contrary to the person’s free will.”
o Fraud in the inducement: using fraud to convince a partner to have sex.
▪ Victim understands the fact that she is having sex – understand nature of the act
▪ Unlike fraud in the factum, fraud in the inducement is generally not a crime
▪ Example: Posing as someone’s spouse
Punishment for Rape
o Rape usually results in more serious punishment than negligent homicide
▪ But that’s because we have hierarchy of homicide (outlier)
● No hierarchy for rape, unlike different levels of homicide
INVALID CONSENT
Groups protected from sexual exploitation:
● Children, animals, prisoners, unconscious, people w/ mental disabilities, involuntarily intoxicated, voluntarily intoxicated (maybe)
There are certain people who cannot give consent
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Sex with Minors
o Statutory rape approaches:
▪ Age of consent:sex with a person below a certain age (16 in most states) is ALWAYS rape
▪ Sliding scale: V must be below age of consent AND D must be a few years older
● 4-year difference rule🡪allows you know who the guilty party is and focus attention of law on
exploitative situations
● Romeo and Juliet provision🡪it’s a sliding scale when the other person is NOT a few years older
o Purpose: to prevent a sexual act that occurred between individuals with only a few years age
difference from being considered a criminal offense.
▪ Combination: Always rape below a very low age (like 10); sliding scale for older kids
o Mental state for statutory rape
▪ In most states, there is no mental state requirement, and strict liability is inferred (sometimes even when statute
is silent.
● Offenders get no mistake of age defense!
▪ Other (minority) approaches: negligence, recklessness
o More than 20 states permit defense of mistake in some circumstances, like:
▪ If child is older than 14
▪ If child and adult are close in age
o MPC: allows a defense for honest mistake (reasonable or not), BUT strict liability when criminality in a sexual offense
turns on a child being below 10 y/o (strict liability)
o Policy argument for strict liability for age of consent rape🡪it’s chilling conduct that is near borderline
▪ Purpose is to discourage sex with people who are 17/18 because they MIGHT be too young
● However, this could also be solved by a reasonable mistake standard
Sex with Mentally Disabled
o Every state uses rape law to protect people with mental disabilities who are deemed incapable of consent
▪ But their incapacity is generally a jury question—no bright-line rules for incapacity
● Hard to have bright line cutoff (like an IQ cutoff)
o NJ statute in Scherzer
▪ “The victim is one who the actor knew or should’ve known was physically helpless, mentally defective, or
mentally incapacitated”
● “Mentally defective” means that a person suffers from a mental disease or defect which renders that
person temporarily or permanently incapable of understanding the nature of his conduct, including,
but not limited to, being incapable of providing consent
o NJ Supreme Court interpretation in Olivio
▪ Mentally defective means either: unable to comprehend the distinctly sexual nature of the conduct, OR
incapable of understanding the right to refuse
Certain circumstances in which people cannot give consent
● State approaches to intoxication
o All states say rape includes:
▪ Obtaining consent via drugging (involuntary intoxication)
▪ Sex with an unconscious person, without prior consent
o But most states’ statutes do not specifically refer to voluntary intoxication
● Voluntary intoxication
o Most states say voluntary intoxication doesn’t hold other party liable for rape b/c there are lots of line-drawing problems
o If both parties drunk🡪likely no prosecution
o Proclivity for making bad judgment NOT treated as incapacity to consent
● MA mental state requirements
o Actual non-consent: Rape is strict liability
o Incapacity-to-consent theory: Rape is a negligence crime if prosecutor argues incapacity to consent
● Blache: Requirements for intoxication rape theory:
o D had sex with V when: V was too intoxicated to consent meaningfully AND D knew or should have known V was too intoxicated
to consent meaningfully
o RULE: Sex with an extremely drunk person is “against his will” because of lack of capacity to consent
▪ In such situations, force associated with sex itself satisfies the force requirement
● Competing jury instructions
o Burke: For intoxication to negate consent, V must be “wholly insensible” – unconscious or close to it
o Blache: For intoxication to negate consent, V must be “so impaired as to be incapable of consenting to sexual
intercourse”
● Possible prosecutorial theories on voluntary intoxication:
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▪ Blache approach: incapacity to consent renders sex forcible
▪ Intoxication is a “mental defect” impairing judgment
▪ V was so drunk as to not understand the nature of the act (like fraud in factum)
BUT these theories are tough sells! In most jurisdictions, it is difficult or impossible to prosecute drunken sex
cases, absent involuntary drugging or unconsciousness *
DEFENSES
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Sources of law
o Defenses are often codified – but they don’t have to be (many are not), unlike the definitions of crimes.
o Thus, defenses can be grounded directly in common law.
Loose definition of defense:any argument D might make that, if true, would result in an acquittal
Narrow definition of defense(affirmative defense): a set of facts that, if established, willresult in D’s acquittal even if the
elements of the crime have been proven by prosecutor
Complete vs. partial defenses
o Complete: gets D completely off the hook
o Partial: reduces a more serious crime to a less serious one (ex: provocation/EED to reduce murder to manslaughter)
General vs. specific defenses
o General: applies to any or many types of crime
o Specific: built into the statute defining a particular crime
Key categories of Defenses:
o Failure of proof: an element of the crime was not proven
▪ Mistake of fact(D did not know): a defense if and only if it negates mental state element of crime
▪ Failure of proof defenses:
● Many mistake of law arguments also concern negation of the mental state
● Alibi: effectively negates all the elements of a crime
● Consent in rape cases: evidence of consent negates non-consent/coercion/force elements
o Justification (affirmative defense): the offense was justified to prevent a greater harm, and is thus, not a crime
▪ Justification defenses
● Under the circumstances, an otherwise criminal act was the right thing to do
● Society praises it 🡪 it’s not a crime
● Examples: self-defense, defense of others, necessity
o Excuse (affirmative defense): special conditions reduce or eliminate the actor’s culpability for the crime
▪ Excuses are concessions to human frailty
▪ Society condemns crime, but does not punish D b/c something about her or her situation merits
sympathy/forgiveness
▪ Examples: insanity (or mental defect), duress, provocation/EED (often described as a partial excuse defense
to murder)
Justifications vs. excuses
o Expressive difference: praise vs. forgiveness
o Practical difference: justification applies to crime, excuse applies to defendant (not necessarily her co-defendants!)
Burden of Proof
o Winship rule: P must prove each element of the crime beyond a reasonable doubt
▪ Failure-of-proof defenses are arguments prosecution must disprove beyond reasonable doubt
o Burden of proof for affirmative defenses
▪ It’s constitutional for legislature to require defendant to prove an affirmative defense. This is up to legislature
o Burdens of proof in practice
▪ Most states have shifted burden to disprove most defenses to prosecution
▪ A few states maintain old common law rule: D bears burden on affirmative defense
▪ Many states require D to prove insanity
Burdens of production vs. persuasion
o Burden of production: D is required to produce minimally sufficient evidence on each requirement of a defense
o Burden of persuasion: ultimate burden of proof once issue has been raised
SELF-DEFENSE
Self-defense is a justification, NOT an excuse
COMMON LAW
● Requirements for the use of deadly force in self-defense:
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The D must honestly and reasonably believe that the threat is:
▪ Deadly,
▪ Immediate, and
▪ Unlawful; and that the response is
▪ Necessary.
o Also, the D can’t have been the aggressor.
● Requirements for the use of non-deadly force in self-defense:
o The D must honestly and reasonably believe that the threat is:
▪ Immediate and
▪ Unlawful; and that the response is
▪ Necessary and
▪ Proportional.
o Also, the D can’t have been the aggressor.
● “Clean Hands” Rule: you can’t be at fault at all in order to use self-defense
o Common Law: If D started fight, he can’t ever claim self-defense even if V escalates it.
o Most states today (and MPC): If V is first to use deadly force (no matter who started the fight), D regains right of
self-defense.
● Aggression and Escalation: Peterson
o You can't support a claim of self-defense by a self-generated necessity to kill . . . you can't be at fault (must be genuine
necessity)
o It is clear, under common law, that aggressors cannot claim self-defense (under common law).
o If D is first to resort to deadly force, he is aggressor and cannot claim self-defense.
o An aggressor only gets his right of self-defense back if hecommunicates his intent to withdraw and in good faith
attempts to do so
o Requirements for self-defense:
▪ There must have been a threat, actual or apparent, of the use of deadly force against the defender
▪ Threat must have been unlawful and immediate
▪ Defender must have believed that he was in imminent peril of death or serious bodily harm and his response
was necessary to save himself from that harm
▪ These beliefs must be objectively reasonable in light of circumstances
● Duty to Retreat (only applies in Deadly Force cases):
o The history of duty to retreat
▪ Traditional common law: no duty to retreat
▪ After MPC: 30 states adopted duty to retreat
▪ 2005-06: 16 of those states switched back 🡪 Most states have NO duty to retreat before using deadly force
o Minority rule: some states (and MPC) impose duty to retreat before using deadly force, unless D reasonably believes
that retreat would not be safe or D is in her own home (only 14 states)
o Castle exception (not available to aggressors, see Peterson)
▪ You have no duty to retreat if you’re in your own home
● Can use deadly force against deadly force even if you can safely retreat
● Special relationships mean nothing
● Exceptions to castle requirement:
o Have to flee your house if the person attacking you also lives there
o Law says you have to flee before there’s an escalation of violence
● Domestic violence
o It is three times as common for men to kill female partners than vice versa.
o Women who kill their partners were previously abused by those partners in 40% to 93% of cases.
o Self-Defense and Sleeping Abusers
▪ Norman Question: Can it ever be self-defense to kill someone while he sleeps?
● The doctrinal hurdles
o IMMINENCE
o NECESSITY
o Remember, under common law, D must assess both factors reasonably!
o “Who Is the Reasonable (Wo)man?”
▪ Objective or subjective standard?
● PURELY OBJECTIVE: Given her dire circumstances, anyone might view D’s actions as reasonable.
● BATTERED WOMAN SYNDROME: D acted reasonably from the perspective of an ordinary abuse
victim.
MPC on SELF-DEFENSE
● MPC 3.04
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Mistakes of fact: do NOT have to be reasonable
Aggression and Escalation:
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Aggression: Under 3.04(1), the initial aggressor is accountable for his original unlawful use of force, but not
liable for his defense against a disproportionate return of force by his victim.
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Escalation: 3.04(2)(b)(i) doesn’t become operative unless initial aggressor entered encounter with purpose of
causing death or serious bodily harm 🡪 triggers D’s use of SELF-DEFENSE
Duty to retreat unless D honestly believes it would not be completely safe
U.S. v. Peterson: Keitt and two friends were in Peterson's yard, stealing the windshield wipers off Peterson's car. Peterson came out and told
them to leave. Peterson went back in the house and came out with a gun and threatened Keitt. Although Keitt was about to leave, when he
saw the gun, he confronted Peterson with a lug wrench. Peterson shot him in the face and killed him instantly.
● Peterson was arrested and charged with second-degree murder.
● Trial Court convicted Peterson of manslaughter. He appealed.
o Peterson argued that the shooting was in self-defense.
● Appellate Court: person cannot use self-defense as a justification if they were the aggressor in conflict.
o In this case, Keitt was about to leave when Peterson came back out and provoked the attack.
● “An affirmative lawful act reasonably calculated to produce an affray foreboding injurious or fatal consequences is an aggression
which, unless renounced, nullifies the right of homicidal self defense.”
● Under Model Penal Code §3.04(2)(b)(i), self-defense is not available as a justification if the actor, with the purpose of causing
death or serious bodily harm, provoked the use of force against himself in the same encounter.
o So basically, you can still use self-defense even if you provoked the encounter, as long as you didn't provoke it just to give you an excuse (i.e.,
guys provoked into using force back) to kill the guy.
o One cannot support self-defense claim by a self-generated necessity to kill
▪ Only those free from fault can use this
▪ The fact that deceased struck the first blow, fired the first shot, or made first menacing gesture does not legalize
self-defense claim if the claimant was the actual provoker.
● EXCEPT if he communicates intent to withdraw and in good faith attempts to do so
o Court is essentially saying, once Keitt got in his car to leave, he was no longer aggressor
o An affirmative unlawful act reasonably calculated to produce an affray foreboding injurious or fatal consequences is an
aggression which, unless renounced, nullifies the right of homicidal self-defense🡪court holds that the jury could easily
find Peterson’s challenge to be a transgression of that character
▪ If D is first to resort to deadly force, he is aggressor and can’t claim self-defense
● Majority view: initial aggressor has very limited means of self-defense. On the ground, self-defense is available only to person
who is free from fault. Most states hold that initial aggressor has no self-defense privilege even when his minor provocation is
met by grossly excessive response.
o Initial aggressor’s only choices are to run, forgo self-defense, or fight back unlawfully.
● Minority view: nonlethal aggressor can regain his right to self-defense if he is met by an excessive, life-threatening response,
provided he then exhausts every reasonable means to escape such danger other than use of deadly force
Allen v. State: Allen and partner were in a fight. Partner struck Allen with a rake. Allen chased partner down, partner was standing next to
Allen with rake, and Allen shot partner dead.
● Allen was convicted of first-degree murder and sentenced to death
● In Oklahoma, a party has no obligation to retreat from a confrontation, but the court affirmed conviction🡪if a person initiates
confrontation by provocative behavior, even with no intention of killing the other person, she loses the right to self-defense
o Allen re-initiated the encounter, knowing the possibility of confrontation was strong
Some courts hold that commission of any crime causally related to fatal result forfeits privilege of self-defense, even when crime
itself does not provoke victim’s threatening conduct
Mayes v. State: D and GF were fighting. GF left and D pursued her. GF reached for her purse and D claimed she was about to pull a gun.
D then drew his gun and shot and killed her.
● Prosecution said D committed misdemeanor by carrying handgun w/o a license and thus he had forfeited his right to self-defense
o Not entitled to self-defense if he is committing or escaping after the commission of a crime
● Jury could have concluded that, but for Mayes’ possession of the unlicensed handgun, Mary would still be alive (gun was required
to be at his dwelling, by law)
COMMON LAW v. MPC DIFFERENCES (SELF DEFENSE)
● Framing of immediacy requirement:
o Common law: immediate threat
o MPC: No Imminent Threat Requirement—instead, it must be “immediately necessary” to act.
● Reasonableness requirement:
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o Common law: objective standard (D must honestly and reasonably believe)
o MPC: no reasonableness requirement🡪subjective standard (D must honestly believe . . .)
Use of deadly force:
o Common law: deadly force can only be used to respond to deadly threats
o MPC: deadly force can be used to respond to serious but non-deadly threats
Duty to retreat:
o Common law: no duty to retreat (majority); duty to retreat is minority rule
o MPC: requires retreat outside of home/place of work,if safe
Aggressor exception to self defense:
o Common law: Aggressors (initiator) can never benefit from a self-defense claim
o MPC: No aggressor exception (self defense is regained) if D is still responding to unlawful force (and not lawful SD)
New York Penal Law 35.15 (Goetz)
● (1) A person may…use physical force….when and to the extent he reasonably believes such to be necessary to
defend…from what he reasonably believes to be the use or imminent use of unlawful physical force….
● (2) A person may not use deadly physical force…unless ….(b) he reasonably believes that such other person is committing or
attempting to commit a…robbery.
● Goetz Rule of Law: D thought kids were about to rob him so he shot them (with malice)
o In New York, a person is justified in using deadly force in self-defense or defense of another only if she objectively and
reasonably believes an attacker is either (1) using or about to use deadly force or (2) committing or attempting to commit a
kidnapping, forcible rape, forcible sodomy, or robbery.
o Under the statute, didn’t matter that Goetz was doing something much more dangerous than the act he was trying to
prevent🡪no weighing of evils.
“Stand Your Ground” Legislation
● Allows use of deadly force:
o With no duty to retreat (anywhere), and
o Against unarmed home or car intruders, and
o To prevent serious bodily harm or forcible felonies
DEFENSE OF OTHERS
COMMON LAW
Generally parallel to self-defense: if A has a right to use force in self-defense, then B may use the same force to defend A. The right of the
defender is derivative to the right of the defended.
● If they both believe there’s a threat, it’s ok
Mistake of Fact:
A observes B threatening to use force against C. From A’s (reasonable) perspective, C is an innocent person about to become the victim of
B’s aggression, so A comes to C’s aid by using force against B. However, B wasn’t an aggressor, but an undercover cop lawfully threatening
to use force against “bad guy” C. Should A be entitled to claim defense of others?
- Traditional rule: the alter ego rule
o A person who comes to the aid of another has the same right that that other has to defend himself
o Here, since C didn’t have the right to defend himself, A can’t assert defense of others
- Modern majority rule: A can assert the defense if it was based on a reasonable belief
MPC 3.05
Mistake of Fact: A can assert the defense if it was based on an honest belief, even if unreasonable
NECESSITY (TO COMMIT A CRIME)
Immediacy and direness as most important elements of necessity defense
[Necessity is allowed for natural and human-induced events in most jurisdictions]
Assess necessity elements from the perspective of a reasonable person
● Reasonable does not necessarily mean right🡪people make mistakes🡪he doesn’t have to be right, just has to be reasonable
COMMON LAW
● Requirements for necessity (Nelson):
o D must honestly and reasonably believe that the harm prevented is an:
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Immediate and dire evil; and that he had
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No adequate alternative; and that his response was
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Proportional (lesser evil)
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And the necessity must not be D’s fault.
Mistake of fact: reasonable mistakes are ok.
o D must honestly and reasonably believe the facts establishing the defense.
o Note: majority of US jurisdictions do not require that necessity is caused by nature.
Intentional killings (Dudley):
o The temptation to kill, however grave, isn't necessity. A man has no right to declare temptation to be an excuse, even if
he (the judges!) might have yielded to it.
o There is no absolute or unqualified necessity to preserve one's own life.
MPC (3.02) – Necessity
● Requirements for necessity
o D must honestly (subjective standard) believe that his conduct is necessary to avoid greater evil.
o If it’s a recklessness/negligence crime, D can’t have been reckless/negligent in creating or appraising the necessity.
▪ Mental state: if you are being charged of a crimewith purposeful mental state, you get necessity defense if
original thing was caused by your recklessness or negligence🡪so you’re just charged for first action (e.g.,
commit arson to prevent larger fire you caused by recklessness/negligence)
o Not precluded by legislature (i.e., torture conventions)
● Mistake of fact: unreasonable beliefs are ok!
o Exceptions: recklessness crimes = reckless appraisal; negligence crimes = negligent appraisal
NEW YORK PENAL LAW
● This is more like traditional common law test
● Conduct that would otherwise constitute an offense is justifiable and not criminal when such conduct is necessary as an
emergency measure to avoid an imminent public or private injury which is about to happen by a situation through no fault of
the actor and which is of such gravity that the desirability and urgency of avoiding such injury clearly outweigh the desirability of
avoiding the injury sought to be prevented by the statute defining the offense in issue
o Requires imminence (unlike Illinois statute of Unger)
o MPC does not require imminence b/c there may be situations in which an otherwise illegal act is necessary to avoid an
evil that may occur in the future
POLICY: Should a person who created the necessity still have necessity defense if he saves the day?
● Argument for yes: want to incentivize people to do the right thing
● Argument for no: don’t want people to be fake heroes; still want to deter creating necessity in first place
MEDICAL NECESSITY
● Courts remain divided over whether to permit a necessity defense for medical uses of marijuana to alleviate the symptoms of
severe illnesses
o Public policy vs. fact-specific situations
o Some states have statutory exceptions to their anti-drug laws for such cases
▪ Despite this, there remains a risk of federal prosecution b/c federal law prohibits distribution of any controlled
substance for which there is no currently accepted medical use.
ECONOMIC NECESSITY
● London court in Southwark v. Williams rejected economic necessity argument for squatting
o No one’s house would be safe and people would imagine they were in need or invent a need to gain entry to houses
● People v. Fontes: guy tried to cash a forged check🡪court rejected his offer to prove that he did it to feed his starving children
o Law is clear that economic necessity alone cannot support a choice of crime, but it may be an important issue in
sentencing🡪in MOST states
People v. Unger: D was a prisoner who escaped. He was convicted of the crime of escape. He said he walked off the honor farm because
his life had been repeatedly threatened, he was assaulted, and he was sexually molested, and he was too small to defend himself. He said he
couldn’t report the incidents for fear of retaliation. Ultimately, says he escaped to save his life and he was going to return once he got help
● Defense of necessity applies🡪he was not deprived of his free will by the threat of imminent physical harm, which appears to be
the intended interpretation of the defense of compulsion, but he was forced to choose b/w 2 admitted evils🡪actual and
threatened sexual assaults and fears of reprisal
● D’s testimony was sufficient to raise affirmative defense of necessity as defined by Illinois statute: conduct which would otherwise
be an offense is justifiable by reason of necessity if accused was not to blame for creation of the necessity in occasioning or
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developing the situation and believed his conduct was necessary to avoid injury greater than that which might result from his own
conduct
o He believes the consequences of his actions are better than what would happen if he hadn’t escaped and situation can’t
be his fault🡪defendant-friendly standard🡪this allows D to win even if it’s a close call
o As long as you commit a lesser evil, you’re good
Traditionally, courts have been reluctant to permit the defense of compulsion and necessity to be relied upon by escapees. But
some decisions have recognized the applicability of the compulsion and necessity defenses to prison escapes.
o People v. Harmon: defense of duress was held to apply in a case where the D alleged that he escaped to avoid repeated
homosexual attacks
o People v. Lovercamp: limited defense of necessitywas held to be available to 2 defendants whose escapes were
allegedly motivated by fear of homo attacks
▪ Dissent in Unger believes D should be held to Lovercamp test otherwise more people may try to escape and
use this defense
Here, court applied a stringent test to prison escape situations based on Lovercamp decision. Defense of necessity need be
submitted to the jury only when 5 conditions have been met:
o 1. Prisoner is faced with specific threat of death, forcible sexual attack, or substantial bodily injury in the immediate
future
o 2. No time for a complaint to authorities or there exists history of futile complaints
o 3. No time or opportunity to resort to the courts
o 4. No evidence of force or violence used toward prison personnel or other innocent people during escape
o 5. Prisoner immediately reports to the proper authorities when he has attained a position of safety
o NOTE: you should never think escape is an option unless you meet elements 4 and 5
DURESS (to Commit a Crime)
But DURESS requires human coercion via threats of serious violence.
● Common Law: Duress Requirements
o (1) Another Person Threatens Imminent Death/Serious Bodily Injury
o (2) Well-Grounded Fear
o (3) No reasonable escape
o (4) Situation is not D’s fault.
● Duress does not excuse killing of an innocent person, even if the accused acted in response to immediate threats 🡪 BUT duress
is permitted as a defense to prosecution for a range of serious offenses
● Under some circumstances, commission of a minor criminal offense should be excusable even if the coercive agent does not use
or threaten force which is likely to result in death or “serious” bodily injury.
● Duress has been held at common law NOT to negate mens rea
● NOTE: There is no requirement that threatened person be the accused🡪concern for the well-being of another,particularly a
near relative, can support a defense of duress if the other requirements are satisfied
● Duress vs. Necessity
o Necessity is a JUSTIFICATION
▪ D violated a criminal prohibition but, in the circumstances, it was good that she did
o Duress is an EXCUSE, not a justification.
▪ D is accorded a defense not because it was good to violate the law, but because of the circumstances were so
compelling that normally law abiding people might well have done the same
▪ Spirit behind MPC defense of duress
o Duress never requires showing that the person chose the lesser evil
o Duress has to be “do this or else”
▪ Person threatening you has to be trying to get you to do the particular thing you did
▪ It’s not duress if you decide to the crime yourself
o The law in some jurisdictions accords significance to the source of peril
▪ If the source of peril is “do it or else”🡪the only possible defense is duress
▪ If the source of peril is something else, the only possible defense may be necessity, not duress
● MPC 2.09 defines duress purely as an excuse. If the circumstances would also make the defendant’s act the lesser evil, the MPC
permits the justification defense as well, but he can claim duress even if he did not choose the lesser evil
o Basically, MPC says person chose the lesser of 2 evils
o MPC allows the justification defense regardless of the source of peril, but it makes theduress excuse available only
when the peril arises from the “do it or else” command of another person
● MPC and proposed NJ Penal Code: departs from the existing statutory and common law limitations requiring that the result
be death or serious bodily harm, that the threat be immediate and aimed at the accused, or that the crime committed be a
non-capital offense
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o Under both model codes, defendant would have had his claim of duress submitted to the jury
Contributory Fault: Where a D “voluntarily and with knowledge of its nature, joined a criminal organization or gang which he
knew might bring pressure on him to commit an offense and was an active member when he was put under such pressure, he
cannot avail himself of the defense of duress
o BUT if the criminal enterprise is such that he had no reason to suspect that he will be forcibly prevent from
withdrawing, and if trouble materializes unexpectedly, the defense remains available
State v. Toscano: Toscano was a chiropractor who helped in the preparation of fraudulent insurance claims by making false
medical reports, and he said he did so under duress. He said he agreed to fill out the medical report b/c he owed money to
Leonardo’s demands only b/c he was scared for his and his wife’s safety🡪felt like he had to protect himself and his wife. He
received no compensation for his services.
o NJ has no applicable statute defining the defense of duress, so the court has to use common law principles
▪ At common law, the defense of duress was recognized only when the alleged coercion involved a use or threat
of harm which is “present, imminent and pending” and “of such a nature as to induce a well-grounded
apprehension of death or serious bodily harm if the act is not done”
▪ Neither threats of slight injury nor threats of destruction to property are coercive enough to overcome the will
of a person of ordinary courage
▪ Threats of loss of job, denial of food rations, economic need, and prospect of financial ruin are held inadequate
▪ Ultimately, the court held: duress shall be a defense to a crime other than murder if the defendant engaged in
conduct b/c he was coerced to do so by the use of, or threat of use, unlawful force against his person or the
person of another, which a person of reasonable firmness would have been unable to resist
▪ OUTCOME: in a case of threats of unspecified future injury🡪duress is a question of fact for the jury
DEFENDING KILLING OF INNOCENTS (DURESS/NECESSITY)
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Can necessity and duress be defenses to homicide?
o Common law countries (including almost all U.S. states): NO
o Most civil law countries, the MPC, and a few U.S. states: YES
A compromise approach (Masetti--Italy)
o The defenses are allowed ONLY IF the victim’s death was unavoidable.
Common Law: Necessity Defense Requirements
o (1) Immediate and dire evil
o (2) No adequate alternative
o (3) Proportional Response (Lesser Evil)
o (4) The Necessity Is Not D’s Fault
o (5) Crime Isn’t Intentional Homicide (of an innocentperson)
Common Law: Duress Requirements
o (1) Another Person Threatens Imminent Death/Serious Bodily Injury
o (2) Well-Grounded Fear
o (3) No reasonable escape
o (4) Situation is not D’s fault
o (5) Crime Isn’t Intentional Homicide (of an innocentperson)
“Authority told me to do something” is never an excuse in a crime
o Unless you don’t have the requisite mental state
“I was just following orders” is NOT duress
NECESSITY AND KILLIING INNOCENTS🡪Regina v. Dudley & Stephens (UK): 4 men lost at sea and 2 defendants
killed one of the other guys b/c he was the youngest, only one w/o family, and the weakest/sickest (would die first anyway). They
decided to vote on who to kill but didn’t let the youngest vote (he had no say in his death). They believed if they didn’t kill him,
they would have all died. The last guy refused to participate in killing the boy but he ate the boy with the 2 who killed him. They
were rescued days later.
o The court refused to allow the 2 defendants the claim of necessity🡪knowingly taking innocent life could never be
allowed by law. No defense of necessity b/c necessityis not a common law defense for murder.
o Court decided it also wasn’t self-defense b/c that would have only applied if they were defending themselvesagainst the boy they killed,
but he wasn’t threatening them.
o Initially they were sentenced to death but then only got 6 months b/c judges understood that they probably weren’t
thinking straight.
o Ultimately, the court decided you can’t kill an innocent person for “no reason.”
DURESS AND KILLING INNOCENTS🡪Prosecutor v. Erdemovic (ICTY): Erdemovic was a low-level solider charged with
killing innocent Bosnians during Bosnian war🡪he was a member of the firing squad
o He was charged with war crimes and crimes against humanity
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He claimed duress, arguing that had he not agreed to participate in the firing squad, he would have been shot himself,
and someone else would have just replaced him
o Court held that “duress does not afford a complete defense to a soldier charged with a crime against humanity and/or a war crime
involving the killing of innocent human beings”
o Court here thinks soldiers should be stronger than average civilians🡪they should have thought death was a possibility
o The law will mitigate their punishment due to the flexibility
▪ Judge Stephen dissent: even if punishment was mitigated, D would bear stigma of conviction as a murderer
● Court shouldn’t make D have to make such a difficult choice because the desire for self-preservation
is instinctive and rational.
o Court ultimately held that duress can’t afford a complete defense to a soldier charged with crimes against humanity or
war crimes in international law involving the taking of innocent lives
Duress as a complete defense
o The criminal codes of civil law nations provide that an accused acting under duress “commits no crime” or “is not
criminally responsible” or “shall not be punished”
o In England, duress is a complete defense to all crimes except murder, attempted murder, and treason
Duress as a mitigating factor
o Traditional common law rejects the defense of duress in respect of murder and treason
o But courts mitigate the punishment of people who commit the accepted offenses unless there is a mandatory penalty of
death or life imprisonment prescribed for the offense
Bernardi and Randazzo: duress leaves intact all the elements of criminal imputability. The person at issue acts with a diminished
freedom of determination, but acts voluntarily in order to escape an imminent and inevitable serious danger to his body or limb
Blackstone: a man under duress ought rather to die himself than escape by the murder of an innocent
Lord Griffiths in R. v. Howe: denial of duress as defense to murder is based on the special sanctity that the law attaches to human
life🡪denies man the right to take an innocent life even at the price of his own or another’s life
No consistent concrete rule that answers the question whether or not duress is defense to the killing of innocent people
o Masetti: there should be an exception where the victims will die no matter what
o Erdemovic: there shouldn’t be an exception where the victims will die no matter what
▪ The court rejects utilitarianism and proportionality where human life must be weighed (one life or set of lives is not
more valuable than another)
▪ There must be legal limits as to the conduct of combatants and their commanders in armed conflict
▪ Notice is given that those who kill innocent people will not be able to take advantage of duress as a defense
● The difficulty of balancing is avoided somewhat when the court is asked to take account of the
circumstances in the flexible but effective facility provided by mitigation of punishment
o Cassese dissent: most of the countries in the world do recognize duress as a defense to killing
▪ Lack of international consensus🡪rule of lenity required the international tribunal to adopt the more
defendant-friendly rule
▪ If defendant wouldn’t have saved the victims lives no matter what🡪duress may succeed as a defense🡪should be
question for trial chamber to decide
▪ Even if the court mitigates the punishment, the court still finds D to be a criminal
MPC on Necessity/Duress (Killing of Innocents):
o Law is hypocritical if it imposes a standard on the actor who has to confront dilemma that his judges are not prepared to
comply with if they are faced with the same dilemma
▪ Unrealistic to expect a reasonable person to sacrifice his own life or the lives of his loved ones in a duress
situation, even if by this sacrifices, the lives of the victims would be saved
o BUT the court in Erdemovic says that their rejection of defense of duress for murder doesn’t depend on what a
reasonable person would do
POLICY:
o Allowing defense of duress may enable a gang leader to confer on his organization by terrorism immunity from the
criminal law
o It would be a greater misfortune for society if criminals could confer impunity upon their agents by threatening them
with death or violence if they refused to execute their commands
o There is proportional mitigation of the offender’s punishment🡪circumstances are taken into account
o The law can’t demand more of a person than what is reasonable🡪what can be expected from an ordinary person in the
same circumstances
MENTAL CAPACITY AND MORAL RESPONSIBILITY
Defenses related to incapacity include:
● Infancy
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Intoxication (voluntary/involuntary)
Insanity (mental disease/defect)
Partial: Diminished capacity 🡪 Many states have diminished capacity middle ground (example: EED)
INFANCY
● Infancy is a complete excuse for all crimes
o Below age 7: never responsible for crime
o Ages 7-13: rebuttable presumption of non-responsibility
▪ Prosecutor could prove that you had capacity to understand what you were doing is wrong
o Ages 14 and over: responsible
▪ Age is never a complete excuse
VOLUNTARY INTOXICATION
● Generally NOT an excuse for committing a crime
● But it sometimes might help D negate the mental state requirement
● Yet some states don’t let D tell the jury he was intoxicated
o Extent to which D can introduce evidence of voluntary intoxication that will negate mental state requirement
o NOTE: prosecutor can bring evidence of D’s intoxication if it helps their case, but D cannot🡪one-sided
o 10 states have a total ban
▪ Can’t use voluntary intoxication to disprove “general intent,” i.e., intent to commit act
● Egelhoff: Appellant was convicted of premeditated murder. Appellant argued that he should have been allowed to present
evidence of voluntary intoxication to show that he did not commit premeditated murder.
o Is it constitutional to say D can’t tell the jury he was intoxicated, even if intoxication tends to disprove the mental state?
▪ PLURALITY: YES
o They don’t allow it, because it’s a rule of evidence (of substantive matter of law)
INVOLUNTARY INTOXICATION
● Involuntary intoxication can be a defense but it’s usually brought under insanity (mental defect, which is temporary)
PSYCHOPATHY
● Psychopath: offender with a long history of antisocial conduct
o They usually know their conduct is illegal, but they experience little or no empathy and have no apparent capacity to
“understand” the rights of others
o Health professionals regard the disorder as a “mental disease”
● State v. Werlein: D opened fire on victim for no reason and was convicted of 1st degree murder
o D called doctor witness who said that, as result of his illness, D couldn’t conform his conduct to the requirements of law
o Court said D’s diagnosis went far beyond that of an abnormality manifested only by repeated criminal or otherwise social
conduct
● Is psychopathy a mental disease for purposes of defense of insanity?
o MPC 4.01(2): “the terms ‘mental disease or defect’ do not include an abnormality manifested only by repeated criminal
or otherwise antisocial conduct”
▪ So basically, psychopathy is not considered a mental disease or defect by the MPC
o Charles Fischette: evidence linking emotional brain states and ethical motivations suggests that psychopaths are not full
moral agents for whom punishment is appropriate
o U.S. v. Currens: it’s possible to distinguish psychopaths from those who merely demonstrate recurrent criminal behavior and juries should
be allowed to consider all pertinent symptoms of D in considering whether insanity defense is warranted in such cases
o BUT some experts argue that psychopathy should be excluded from insanity defense
▪ Capacity to treat psychopathy is limited
▪ Psychopaths will prey on other vulnerable mental patients
o People v. Fields: psychopaths are defined by their recurring criminal behavior, permitting them to assert the insanity
defense would open up the defense to lots of other serious criminal offenders
INSANITY
● You can maybe plead insanity if you have anything EXCEPT “an abnormality manifested only by repeated criminal or otherwise
antisocial conduct”
o So, anything except psychopathy
● Insanity Numbers:
o 45-64% of prisoners suffer from mental illness but only 0.005% of defendants are acquitted by reason of insanity
o Despite the prevalence of mental illness, insanity defense is very rare
● Insanity as a defense
o Insanity is an EXCUSE (not a justification)
▪ D committed a crime but isn’t morally culpable
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o
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MAJORITY: D bears the burden of proving he’s insane
BUT, NOTE: Mental illness can also be relevant to mens rea
▪ Even if person is mentally ill, so long as they intended to do what they did, they still meet mental state
requirement
o Very few states have a rule barring people from bringing evidence of insanity (for violent crimes)
Categories of impairment:
o Cognitive:
▪ Doesn’t know nature of what he’s doing
▪ Can’t appreciate the wrongfulness of what he’s doing
▪ Can’t appreciate the criminality of what he’s doing
o Volitional
▪ Issue of self-control
If D fails to appreciate the wrongfulnessof what he’s doing, it means D believes either (1) conduct isn’t wrong, (2) society
approves the conduct, or (3) the conduct isn’t criminal
Impairment Types and the Four Tests: (check other sources)
o M’Naghten: cannot understand nature/wrongful (cognitive) 🡪 CHECK W/ ANOTHER SOURCE, Crenshaw
o Irresistible impulse: nature/wrongful/volitional (cognitive, volitional)
o Product: so long as crime is product of mental illness
o MPC: wrongful (criminal); volitional (cognitive, volitional)
M’Naghten Test: Criminal defendant can’t be convicted if, as result of mental illness at the time of the crime, hedidn’t know
what he was doing or didn’t know that it was wrong 🡪 CHECK W/ ANOTHER SOURCE
o Mental illness must have virtually nullified his cognitive capacity so that he was unable to exercise the moral understanding of
normal people
o 10 states limit this test to people who didn’t know their criminal act was wrong
o If you can prove you didn’t know what you were doing when you acted, might have this as a defense
Irresistible Impulse Test: Criminal defendant can’t be convicted if:
o D had mental disease/defect, and
o D either
▪ Didn’t know conduct’s nature, or
▪ Didn’t know it was WRONG, or
▪ Was irresistible driven by an insane impulse
MPC Test: Criminal defendant can’t be convicted if:
o Due to mental disease/defect,
o D lacks substantial capacity either
▪ To appreciate criminality (wrongfulness) OR
▪ To conform conduct to the law
Product Test: Criminal defendant can’t be convicted if his crime was a product of his mental illness
How should the law deal with people who have been acquitted on grounds of legal insanity?
o Civil commitment: protects public while respecting the person’s innocence
▪ Judge decides whether to commit a person indefinitely to a mental institution b/c he is suffering from a mental
disability that makes him a danger to himself or others
▪ But there are constitutional restrictions: high standard of proof🡪mental illness and dangerousness must be
proven by clear and convincing evidence
● BUT some states have enacted special commitment procedures for insanity acquittees in which the
crucial factual findings can be made by a preponderance of the evidence
▪ In some states, commitment is automatic and mandatory for all insanity acquittees
● May make the defense of irresponsibility more acceptable to the public and jury
● BUT people won’t want to admit to being insane b/c they won’t want to be committed
▪ Jones v. U.S.: SCOTUS upheld constitutionality of mandatory commitment b/c that mental disorder and
dangerousness are likely to continue
o Note: Insanity acquittees often committed for longer than the sentence for the crime🡪they almost never just go free
o Medical facility may release person when they think he’s no longer dangerous🡪judge makes final decision
o Guilty by mentally ill
▪ Some states are concerned that a committed insanity acquittee may be released too soon
▪ Michigan enacted “Guilty but Mentally Ill” statute; allows jury to find D guilty but mentally ill at time of
offense
● Court retains same sentencing authority it has in cases of guilty verdicts, but if the court sentences the
D to prison, he is given treatment as is psychiatrically indicated for his mental illness
All jurisdictions presume legal sanity at the trial. If you don’t prove otherwise, you’re presumed sane for legal purposes
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Some states only require “some evidence” of legal insanity in order to eliminate the presumption of sanity. Others
require more (evidence has to raise a reasonable doubt).
o A dozen states say prosecution has to prove sanity of D beyond a reasonable doubt
o ¾ of states now place burden of proof of insanity on defense
o Federal courts: defendant has burden of proving the defense of insanity by clear and convincing evidence
King v. Porter: It’s useless for the law to attempt, by threatening punishment, to deter people from committing crimes if their
mental condition is such that they can’t be influenced by the possibility of subsequent punishment, or if they can’t understand
what they’re doing or the ground upon which the law proceeds
o They don’t appreciate what they’re doing and can’t appreciate the threat of being punished by the law and the wrongness
of their acts
Blake v. U.S.: Blake charged with bank robbery🡪he pled insanity🡪he was convicted and then appealed
o There was testimony that he suffered from schizophrenia and was having a psychotic episode but there was also
testimony that he had sociopathic personality and didn’t have a mental disorder
▪ Burden was on the prosecution, once the hypothesis of insanity was established, to prove beyond a reasonable
doubt that Blake was sane at the time of the crime
o DAVIS: person is incapable of distinguishing b/w right and wrong OR his actions are beyond control of his mind (even
if he does know the difference b/w right and wrong and knows his act was wrong) 🡪COMPLETE MENTAL
DISORIENTATION
▪ Blake couldn’t win under this
o MPC: person is not responsible if at the time of theconduct, as result of mental disease or defect, lacks substantial
capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the
law🡪SUBSTANTIAL LACK OF CAPACITY
▪ Blake could win under this
U.S. v. Lyons: Lyons was convicted of narcotics possession, but said his addiction to the drugs affected his brain and addiction
prevented him from conforming his conduct to law
o A person is not responsible for criminal conduct of grounds of insanityonly if at time of conduct, as result of a mental
disease or defect, person is unable to appreciate the wrongfulness of that conduct
▪ Lyons couldn’t show he lacked ability to understand wrongfulness of his act, so his conviction was affirmed
State v. Crenshaw: D thought wife cheated so he beat her unconscious, stabbed her, decapitated her, and then hid the parts.
o He argued that his religion (Moscovite) compelled him to kill an unfaithful wife, thus, he had been unable to perceive,
morally speaking, the wrongness of the act
o Court held that the insanity defense requires that D be unable to differentiate right from wrong legally, as
opposed to morally (M’Naghten). Individual’s moral beliefs don’t matter.
▪ Here, D knew what he was doing was legally wrong🡪that’s all that matters
o BUT, some jurisdictions say wrong means morally wrong, and some leave the meaning of wrong up to the jury
ATTEMPT
Because attempt doesn’t require successful completion of crime, mens rea of attempt is usuallymore demanding than mens rea for
crime attempted.
COMMON LAW
● To attempt is to try and fail to commit a crime.
o Main social harm of the crime itself never occurs
● Merger rule: You cannot be punished for both attempt and the crime: successful attempt will only be punished as crime itself.
o BUT you can be charged with attempt to commit one crime AND completing a different crime
▪ Example: attempt to murder one person and accidentally murdering another🡪you can be charged with
attempted murder AND murder
● Mens Rea for Attempt: Defendant must have same state of mind required for conviction of target offense.
o Also must have INTENT/PURPOSE (majority rule) to bring about proscribed result🡪SPECIFIC INTENT
▪ Example: attempted murder requires a specific intent to kill, but it’s sufficient for murder that D engages in
conduct knowing of a high probability that in doing so he will kill someone
o Must intend to (1) do the act, (2) to accomplish the result, (3) under the same circumstances that would be
required for target offense
▪ Intent to do the act means you can’t commit an attempt recklessly or negligently
● BUT you can attempt a crime that only requires act be done with recklessness or negligence
o Smallwood: D convicted of assault w/ intent to murder b/c he knew he had HIV & didn’t use condoms w/ victims
▪ He argued that having sex with them might give them HIV, but doesn’t prove intent to kill
▪ Under the proper circumstances, an intent to kill may be inferred from the use of a deadly weapon directed at a
vital part of the human body, but court said no evidence that shows that death by AIDS was a probable result
of Smallwood’s actions🡪NOT the same at firing a loaded gun at someone
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No extra evidence showing intent🡪he didn’t not demonstrate that he intended to infect his victims
If it had been certain that he would’ve transmitted the disease or he had specific intent, court would
have likely inferred attempted murder (intent/purpose is required for attempt conviction)
o Why is specific intent necessary?
▪ Linguistic: if you’re trying to commit a certain crime, that means you’re intending to succeed🡪can’t try to do
something on accident
▪ Moral: one who intends to commit a criminal harm does a greater moral wrong than one who does so
recklessly or negligently
▪ Utilitarian: importance of intent is to show that the act was likely to be followed by hurtful consequences
o Does specific intent requirement extend to attendant circumstances that are necessary elements of the crime attempted?
● The intent of D is precisely the same in rape and in attempted rape and the mens rea is identical
(intention to have sex plus a knowledge of or recklessness as to the woman’s absence of
consent)🡪Regina v. Khan
● In both statutory rape and attempted statutory rape, it is immaterial that the D reasonably believed or
was aware of victim’s age🡪Commonwealth v. Dunne
▪ BUT, in the above cases, how can one be convicted of attempting to do something he was unaware of doing?
o NOTE: attempted negligent homicide is NOT a thing🡪can’t have intent/purpose AND negligence
▪ No such thing as accidental attempts, even if underlying crime is negligence or recklessness
Actus reus:
o Complete: you did the criminal act but didn’t get the result you intended (crime not completed)
▪ You completed all the steps you meant to complete
● Example: shooting someone but they don’t die or the bullet misses
▪ Mistake of fact/absent attendant circumstance
● D carries out an act that would be a crime if facts were as D believed them to be, but D was wrong
about facts (like undercover cop sells D brick of what D thinks is coke but it’s actually baking soda🡪if
it had been coke, it would have been a crime)
o In that example, D could be charged with attempted possession of cocaine
● Example: if you think you have HIV and try to give it to someone to kill them but you don’t actually
have HIV🡪might still be charged with attempted murder
● Factual mistake in such cases often concern attendant circumstance element of the crime (like victim’s
age)
o Incomplete: intended criminal act not completed (abandoned or interrupted) (course of conduct constituting the crime)
▪ Personal intervention or intervention from the outside stopped you from getting to the end of the sequence to
complete the criminal act
● To be guilty of attempt, D’s act must have crossed from preparation to attempt (depends on jxn)
Federal attempt statute doesn’t define test so different circuits apply different tests.
3 common law tests for incomplete attempts:
o Unequivocal Act test: objective acts must mark the D’s conduct as criminal in nature (Oviedo, Miller)
▪ Basically says, why else would D have done that act if not for criminal attempt (has to be OBVIOUS that he
wanted to commit the crime)
● A criminal attempt is an act which shows criminal intent on its face
▪ Ex: buying a box of matches with the intent to use them to burn down a haystack is not an attempt to
commit arson b/c buying matches in itself is innocent BUT going to the haystack with the matches
and lighting one is attempt
▪ Prosecutor can’t use outside evidence to show intent so it’s hard test for prosecution to satisfy
● Even putting gun to someone’s head may not meet unequivocal test
o POLICY against: lets dangerous people remain at large b/c police can only arrest actor at the lost possible
moment
o Substantial Step test: if there’s other evidence that makes intent clear, then a lesser act suffices (Stokes, Luna)
o Focusing on what has been done
o U.S. v. Jackson: Jackson and co. wanted to rob a bank but their plans got all messed up (one of the friends
snitched). They got captured and the guns to be used in the robbery were in the car and license plates had been
changed to prevent detection
▪
Rule: an attempt requires that the D have acted with criminal purpose and that he engaged in conduct
constituting A substantial step toward commission of the target crime🡪they were near the bank with
bank robbery tools🡪easy case for the substantial step test🡪doesn’t have to be the MOST substantial
step
▪
Prosecutor could have won on unequivocal act, dangerous proximity, AND substantial step
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o Half of the statesand 2/3 of federal circuits use a substantial step test
Dangerous Proximity test: rule of “immediate nearness”
▪ Leaves only a narrow window for law enforcement intervention
▪ Focusing on what’s yet to be done
▪ Rizzo: D and friends wanted to rob payroll messenger. They couldn’t find him, but police were suspicious of
their behavior and they were convicted of attempted robbery even though they were nowhere near messenger
▪ Have to be so physically close to the contemplated victim or scene of the crime that
completion/chance of success is very likely but for timely interference
▪ Most jurisdictions apply this dangerous proximity approach🡪distance must be relatively short
and the gap narrow if D is to be held guilty of criminal attempt
▪ U.S. v. Harper: D tried to set a bill trap and rob victim
▪ Too much time between start and when they would have committed the crime. If the victim had been
30 seconds away, might have met dangerous proximity test.
o Difference b/w unequivocal act and substantial step test
▪ Level of certainty is higher in unequivocal act test🡪can’t look at extrinsic evidence to see if the act is attempt;
have to look at D’s act
▪ Can determine that his behavior is very clearly criminal
▪ There can be some ambiguity in substantial step test
▪ You CAN look at extrinsic evidence
●
Preparation vs. Attempt (Act Element)
o
Mere preparation is NOT attempt
o Eagleton test: in order to constitute a criminal attempt, as opposed to mere preparation, the accused must have taken
the last step which he was able to take along the road of his criminal intent
▪ If he stopped short of doing all that he intended to do and was able to do, he’s within the region of innocent
preparation
o White Test: completion or attempted completion of one of a series of actsintended to result in killing is an attempt to
murder, even though the completed act would not, unless followed by other acts, result in killing
▪
Ex: the first administration of poison in slow poisoning
o To constitute a criminal attempt, the first step along the way of criminal intent is not necessarily sufficient and the final
attempt is not necessarily required
MPC 5.01 - Attempt
● MPC requires that D must purposely engage in all elements of conduct made criminal by the crime attempted.
o D must be acting with the purpose or belief that his act would cause a particular result
o The mens rea of the target crime= mens rea for the attempt
▪ Ex. For strict liability crimes, even if you’re wrong about the facts, you would still be guilty of attempt (296)
● Mens rea: KNOWLEDGE for complete attempts, PURPOSE for incomplete attempts
● Actus reus: Test for incomplete attempts = Substantial Step test (majority rule)
● Attempt, solicitation, and conspiracy are crimes of the same grade and degree as the most serious offense which is attempted or
solicited or is an object of the conspiracy.
o An attempt, solicitation, or conspiracy to commit a felony of the first degree is a felony of the second degree
o
DIFFERENCES between COMMON LAW v. MPC
● Mens rea required:
o
Common law: purpose
o
MPC: knowledge
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Actus reus tests:
o
Common law: unequivocal act, substantial step, or dangerous proximity
o
MPC: substantial step
●
Abandonment:
o
Common law: act element approach (abandonment isn’t a defense)
o MPC: abandonment is an affirmative defense if it’s complete and voluntary
ATTEMPT: MENS REA CHECKLIST
● Did she act with the same mens rea required by the crime attempted?
● Common law: did she also intend to commit the act and to cause the result and intend the same circumstances as required by the
crime attempted?
● MPC: did she have:
o The purpose to do all the conduct elements of the target offense?
o The purpose to cause the result (or believe she would cause the result) of the target offense?
o The same mens rea toward the circumstance elements as required by the target offense?
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ATTEMPT: ACTUS REUS CHECKLIST
● Common law: Did D’s act satisfy the applicable test?
o Last act: did D do everything that he could and the result was not beyond his control?
o Equivocality: would reasonable people, observing only D’s conduct, necessarily conclude that he was trying to commit a
crime?
o Proximity: in light of the seriousness of the offense and the scope of possible harm, did D come close in space and time
to completing the offense?
● MPC: Did D’s behavior strongly corroborate his criminal purpose? If he searched for his victim, familiarized himself with the
crime scene, and unlawfully entered a building where the thought he might commit the crime, had special tools essential for
committing the crime, or solicited an innocent agent to commit the crime, a jury could (but isn’t required to) find him guilty of
attempt
IMPOSSIBILITY (as Defense to Attempt)
● Defense of impossibility: D argues that they should get off the hook b/c successfully completing the crime would have been
impossible (despite what the D originally thought)
o defense fails in most jurisdictions🡪factual impossibility isn’t defense to attempt, but so-called “legal
impossibility” is (i.e., not a crime)
▪ Example: picking an empty pocket (you didn’t know the pocket was empty)
● Attempted larceny (factual impossibility not a defense)🡪clearly tried to commit a crime
▪ Example: shooting an unloaded gun:
● Attempted murder (factual impossibility not a defense)🡪clearly tried to commit a crime
▪ Example: receiving property that’s not stolen
● Could go either way but D will have to classify situation as legal impossibility
▪ Example: Buying fake coke
▪ Example: shooting a decoy deer (thinking it’s real)
▪ Example: shooting a dead body (thinking it’s alive)
▪ Example: pedophile sting (child is actually undercover cop)
▪ Example: age of consent mistake(D thought he was committing statutory rape b/c he thought age of
consent was higher than what it was)
● NOT an attempt🡪legal impossibility (which is a defense to attempt)
o Imagining that something you do violates law doesn’t turn non-criminal action into a
crime
o In most U.S. courts, all above situations except the last one would be considered attempts (might be impossible
attempts, but that doesn’t matter🡪still attempt b/c factual impossibility is no excuse)
▪ Factual impossibility: basically it would have been a crime if you succeeded at what you thought you were
doing
●
Factual vs. (pure) Legal Impossibility
o Factual: sex with 16 y/o thinking she’s 15
▪ THIS IS ATTEMPT for statutory rape🡪factual impossibility is NOT a defense to attempt
● Court in Jaffe disagrees
o Legal: sex with 16y/o, thinking the age of consent is 18 (when it’s actually 16)
▪ Pure legal impossibility IS a defense to attempt (it’s NOT attempt)
● Imagining that there is some law that your lawful actions violate doesn’t make it a violation
● Basically, you’re wrong about what the law prohibits🡪can’t just imagine that your acts are evil
▪ POLICY: reason for wanting to punish people who think they’re violating the law but aren’t:
● Want to punish people who purposely disregard the law
● however, there is no crime on the books and no way to punish
●
Common Law – Impossibility:
o Factual impossibility is NOT a defense
o Pure legal impossibility IS a defense
o Hybrid legal impossibility mistake about legal fact is not a defense (it is in some jurisdictions, see Jaffe)
▪ Jaffe: Goddard allowed the police to use cloth that was stolen from them and recovered in a sting
operation. Undercover police went to Jaffe and asked if he would be interested in buying the ‘stolen’ cloth.
He was interested. The police arrested Jaffe for attempting to receive stolen property.
● Court held that D could not know the property was stolen if, in fact, it was no longer stolen.
o Basically, it’s not a crime to try to buy goods that are no longer stolen (even if you
believed they were stolen) – i.e., factual impossibility allowed as defense
● NY Supreme Court: if a person intends to commit an act that would not be a crime if it were
consummated, the person couldn’t be convicted of an attempt
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o
o
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An essential element in the crime is that the defendant must have knowledge that the
goods were stolen. But since the goods were not stolen, by definition Jaffe could not
have knowledge of something that was untrue
But some jurisdictions get confused by what counts as “factual” rather than “legal”
MPC Approach – Impossibility: (Huh? CHECK OTHER SOURCES)
o Factual impossibility is not a defense
o Hybrid legal impossibility is never a defense
o Legal Impossibility
▪ (a) Purposely engages in conduct that would constitute the crime if the attendant circumstances were as he
believes them to be
● Complete mistake of fact
▪ (b) …belief that it will cause such result…
▪ (c) …anything which, under circumstances as he believes them to be, is a substantial step
ABANDONMENT
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Strict Approach (majority)
o After the act element of attempt is satisfied,crime of attempt is “complete.” Too late to abandon (guilty of attempt)!
▪ Harsh, but may encourage courts to adopt a more demanding act element.
Affirmative Defense Approach (minority)
o If you abandon your attempt after completing actus reus of attempt (but before succeeding!), you may have affirmative defense
MPC Approach (MPC 5.01)
o Abandonment means renunciation of criminal purpose
o Abandonment is an affirmative defense ONLY IF:
▪ Complete: must be a genuine, entire abandonment of crime; cannot be motivated by a decision to
postpone
▪ Voluntary: must be change of heart, not based on new information (like finding out homeowner has dog)
● People v. Johnston: D tried to rob gas station but when attendant had only $50, D tried to say he
was just kidding
o New piece of information on the ground that makes you rethink🡪NOT adequate
abandonment
● People v. McNeal: D intended to rape girl and took her to house. After begging, he let her go
o Court affirmed conviction for attempted sexual assault b/c his renunciation was not
voluntary, but due to the girl’s resistance
● Ross v. State: Court said that victim successfully persuaded D, of his own free will, to abandon his
rape attempt
o Court found abandonment as a matter of law🡪not guilty
Note: Abandonment (followed by remorse and restitution) may affect sentencing, but can’t erase liability once elements
necessary for conviction are complete
POLICY: Why might we not want abandonment?
o Might be easy to fake abandonment but could remedy this by placing burden of proof on defendant
Lots of jurisdictions accept the idea of abandonment
PUNISHMENT FOR ATTEMPT
● Purpose of punishing attempts:
o Deterrence🡪punish attempt because we want there to be fewer people succeeding in committing crimes
o Incapacitation
o Moral wrong (retributivist)
● Usual punishment for attempt is a reduced factor of the punishment for the completed crime b/c the actor who intentionally
seeks to cause a harm is traditionally punished less severely if his attempt proves unsuccessful
● Cali: attempt is maximum term of no more than ½ of the maximum term for the completed offense
● NY Penal Law: sentence for attempt is one classification below that for the completed crime
o EXCEPT drug offenses have same punishment for attempt and actual commission of the crime
● Substantial minority of states (and MPC): punishment is the same for attempt as it is for the completed crime
o EXCEPT crimes punishable by death or life imprisonment
o Reasoning: unsuccessful criminal is just as dangerous as a successful one
● We can say we punish attempt solely for utilitarian reasons
Purpose of Reduced Attempt Punishments
● Punishing someone harsher who actually causes harm (even if the harm was a result of bad luck) gratifies a natural public feeling
o Bad luck and good fortune make a difference
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o
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HOWEVER, whether or to what degree people should be branded as criminals and imprisoned should not be a matter
of lottery
o AND, the principle of proportionality doesn’t decree that the severity of the punishment be proportionate to the
offender’s good or bad luck, but rather to his good or bad deserts (i.e. blameworthiness)
Main social harm of the crime itself never occurs🡪 It would be obtuse to ignore consequences because everyone cares about
consequences
Want there to be an incentive for people to abandon bad conduct🡪they want to take less serious punishment
o Marginal deterrence: basically rewarding people for not succeeding in committing crimes🡪you’re not fully on the
hook, so STOP
o Retributive argument: Standing in solidarity with the victims🡪people should be morally capable for bad intentions and
harm and suffering cause
CONSPIRACY
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Conspiracy is all about AGREEMENT
Conspiracy is both crime and attempt to commit a crime
Conspiracy is the crime of agreeing with another (or others) to commit a criminal offense
o It’s an inchoate offense b/c it’s punishable whether the intended offense occurs or not
o It’s punishable separately and in addition to the completed offense
▪ You CAN be charged with conspiracy to commit murder AND/OR murder if it’s the same person
● NO MERGER RULE
Conspiracy vs. Attempt
o Conspiracy law gets at earlier stage conduct (attempt, you have to be close to completing)
▪ Majority/Common Law Rule: no overt act required🡪just agreement
▪ Minority: overt act, but minor
o Common law/majority: conspiracy charges do not merge with completed crime
▪ D can be convicted of BOTH conspiracy to do something and doing the actual thing
▪ In attempt, you cant be convicted of attempting a crime and completing the same crime
o Agreement between people is not necessary for attempt but it’s necessary for conspiracy
Object of conspiracy doesn’t need to be successfully completed
Two key aspects of conspiracy
o Agreement to commit a crime
o Mode of liability🡪Accessory liability
▪ Co-conspirators are responsible for one another’s substantive crimes
Holmes: conspiracy is a partnership in criminal purposes
POLICY reasons behind punishing conspiracy separately and in addition to the completed offense: To address the special danger
posed by group criminal activity
o Dangers of group criminality
▪ Groups are more likely to succeed
▪ Less chance of abandonment in a group (peer pressure)
▪ Complexity
▪ Escalation
Duration and Scope of Conspiracy (fact intensive and highly contested)
o Statute of limitations for conspiracy begins to run not when the offense is committed (when agreement is made) but
when the conspiracy terminates
▪ Conspiracy can often remain subject to prosecution long after initial agreement is made and long after some
members have ceased active participation in the activities
o Conspiracy cant be treated as including cover-up agreement unless there’s direct evidence of express original agreement
among the conspirators to continue to act in concert in order to cover up traces of the crime (Grunewald v. US)
▪ Most courts refuse to infer than an implicit agreement to cover up the crime is inherent in ever conspiracy
▪ But agreements to conceal are one way for conspiracy to continue beyond the commission of the object crime
o Other ways to continue conspiracy beyond commission of object crime: distribution of proceeds, pawning or fencing of
stolen goods, dismantling of a stolen car for parts
▪ US v. Franklin: Franklin telling Stinson the details of the crime and telling him not to get caught while dispersing
the proceeds were made “during the course and in furtherance of the conspiracy.”
Conspiracy as an inchoate crime: elements
o Actus Reus:
▪ The agreement itself (agreement to commit crime)
● Agreement:
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o
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o
Doesn’t need to be explicit (often implied)
▪ Interstate Circuit: Evidence of direct agreement to participate in conspiracy not
necessary, may be inferred from acts of the conspirators (circumstantial evidence)
o Doesn’t need to involve direct interaction, details, or knowledge of identities of all
co-conspirators
▪ Just has to know the essential nature
o But there does have to be actual agreement (parallel, independent action not enough)
o Proof of such an agreement must be circumstantial
Majority: no overt act requirement (the agreement is enough)
Minority: overt act required (by someone in the conspiracy) 🡪better for defendants
Mens Rea:
▪ Intent to combine
▪ Intent to complete objective
▪ Meaning of intent is ambiguous
● Solicitation: intent to commit conspiracy (asking someone to commit a crime)
o More inchoate than conspiracy
o Once the person does what you’ve asked, you’re guilty of conspiracy
o Sentencing range is usually half the substantive crime’s range
o Solicitation merges with the conspiracy and completed crime
Overt Act Requirement (see above)
● Conduct can be punishable as conspiracy at points much farther back in the stages of preparation than the point where liability
begins to attach for attempt
o Some jurisdictions says the agreement alone is sufficient without anyone doing any overt acts in furtherance of the
agreement (majority)
o Some jurisdictions say overt act must be proved, but the act may fall well short of the kind of conduct sufficient to
constitute an attempt
● Liability without overt act (majority)
o At common law, no overt act was required🡪agreement is the act
▪ Mulcahy v. The Queen: Ds argued that the court failed to charge some overt act (like publishing writings or
procuring arms). The court said conspiracy is not just about the intention, but it’s the agreement of 2 or more
to do something unlawful🡪basically, the agreement is the act
● Statutes requiring an overt act
o American conspiracy statues have typically added an overt act requirement
▪ 18 USC 371: if one or more persons conspire to commit an offense and one of them do any act to effect the
object of the conspiracy…
▪ But most statutes are silent on the subject
● Whitfield v. U.S.: court said when a federal statue is silent, no overt act requirement should be read into
the statute (agreement is ENOUGH)
o The purpose of the overt act requirement is to manifest that the conspiracy is at work
o Even when the overt-act requirement applies, it generally can be satisfied by acts that would be considered equivocal or
merely preparatory in the law of attempts (many things can be considered overt acts)
o BUT Some states have required a more substantial overt act
▪ Ohio says overt act is only sufficient when it is of a character that manifests a purpose on the part of the actor
that the object of the conspiracy should be completed
▪ Maine requires substantial step (conduct which under the circumstances in which it occurs is strongly
corroborative of the firmness of the actor’s intent to complete commission of the crime)
● Speech alone is not a substantial step
● POLICY Justifications for traditional approach (no overt act requirement)
o The act of agreeing is concrete and unambiguous🡪purpose must be firm before the commitment involved in agreement
is assumed
o Working with someone increases the likelihood that the offense will be committed
▪ Likely to escalate
▪ Less likely that everyone will abandon OR no one may abandon because of peer pressure
COMMON LAW
Conspiracy As Mode of Liability(Pinkerton):
Pinkerton: Daniel and brother planned to bootleg whisky and were charged with tax fraud and conspiracy.
● Daniel argued that he had not bootlegged any whiskey; he just planned with Walter on how Walter could bootleg whiskey. He
argued that while he might be guilty of conspiracy, he never committed any substantive crimes himself.
o In fact, several of the charges were for things Walter did after Daniel was arrested.
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o
Daniel is claiming that he didn’t agree to every type of violation
▪ Court said we don’t care🡪when D is joined in a conspiracy, substantive crimes committed to advance that
conspiracy could be charged to all defendants as long as they are still part of the conspiracy when those crimes
are committed🡪he never cut himself off from the crimes
● Ultimate rule: if multiple people are involved in a conspiracy, and one of them commits a crime in furtherance of that
conspiracy, then everyone is guilty of that substantive crime.
o This is true even if they didn't have anything to do w/ the crime. They don't even have to know that crime occurred.
o Example: if a gang decides to rob a bank, and one of the gang, completely on his own, goes out and steals a car to use
for the getaway, all of the gang members are guilty of stealing the car, even if they didn't have any knowledge that the
theft was going to happen.
● If you’re in a jurisdiction that doesn’t have Pinkerton, you’ll still be charged with conspiracy!
● POLICY:
o Argument FOR Pinkerton: want to punish those involved in organized illegal enterprises
o Argument AGAINST Pinkerton: Pinkerton may fault low-level people in organized crime for crimes of their superiors
▪ BUT it may force entire organization to rethink and commit less crimes
o Implications of Pinkerton:
▪ Person who doesn’t actually commit the crime gets same charges as the person who did
● But prosecutorial discretion and plea bargaining means you don’t see Pinkerton resulting in lots of
prosecutions
▪ In drug conspiracies, people can be held accountable for the drugs they don’t even possess
● Example: combining all the drugs everyone had and charging them all with that amount
Requirements for being guilty of another’s act in conspiracy:
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There must be a conspiracy
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Co-Conspirator Commits Crime in Furtherance
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Foreseeability
o
Broadly construed to extend to the general category of crime or violence that takes place, not specific crimes
themselves.
▪ Don’t have to know which co-conspirator would commit crime; don’t have to know who the victim is; don’t have to
predict exact course of events; conspirators don’t have to know each other and don’t have to expressly agree
o
Objective test; individualized from the perspective of the information that is available to D
o
State v. Bridges: D got into fight and brought friends to help him and friends brought gun and killed someone
random.
▪
D guilty of conspiracy AND murder
● B/c he was involved in conspiracy with friends, he was criminally culpable for everything they did in
furtherance of the conspiracy (Pinkerton)
o Once you do one thing, you’re on the hook for the other thing
▪ Court relies on reasonable foreseeability🡪he knew his friend was bringing gun so it was reasonably
foreseeable that his friend would shoot someone
▪ BUT question here is was the murder (which appeared to be accidental) in furtherance of the conspiracy?
Types of Conspiracies
● Wheel/Spoke conspiracies: can the separate transactions between the hub and the individual spokes be merged to form a single
conspiracy? (Is the rim of the wheel solid?)
o Kotteakos: Simon acted as a broker for Kotteakos (D) and others in making fraudulent loan applications. There was
evidence that each of the Ds had transacted with Brown, but there was no evidence that any of them had transacted with
each other🡪court found that they didn’t all conspire together!
▪ A single conspiracy cannot exist when two or more persons have no contact or transactions with each other,
even though each person may transact with the same, single individual.
● Chain conspiracies: a single conspiracy can be proven if each link knew or must have known of the other links in the chain, and if
each D intended to join and aid the larger enterprise
o Anderson: Anderson (D) worked with a doctor who performed abortions (she referred people to him and got a fee).
Grand jury indicted her for conspiracy to commit illegal abortions and for substantive offenses of several abortions
committed by the doctor.
▪ She knew that the doctor was performing abortions and still decided to join him. By joining the conspiracy, she
became responsible for the substantive offenses committed as part of that conspiracy
o Bruno: 86 people, including Bruno, were indicted for conspiracy to import, sell, and possess narcotics. The scheme
required the cooperation of all the people.
▪ Thus, the conspirators at each end of the drug chain knew that the unlawful business could not stop with the
buyers. A single conspiracy existed because each participant knew that he was a necessary link in the chain of
the drug distribution scheme.
● Combination wheel/chain conspiracies
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o
Borelli: Chain metaphor makes sense for narcotics conspiracy because the links are inextricably related to one another,
each depending for his own success on the performance of all the others. BUT the links at either end are likely to consist
of people who may have no reason to know that the others are performing a role similar to theirs (the ends are spokes)
Gebardi: A person is not a co-conspirator if the legislative scheme (for the target crime) reveals a purpose to exempt that class of persons
from punishment. Most commonly: the class of persons meant to be protected by the statute.
Suppliers as Conspirators (Lauria):
● Both the element of knowledge of the illegal use and the element of intent to further that use must be present to make a
supplier a participant in a criminal conspiracy.
o Lauria: Lauria ran a phone answering service and some prostitutes used the service
▪ Lauria took no direct action to further, encourage, or direct the call-girl activities and there is absence of
circumstances from which his special interest in their activities could be inferred
● If Lauria was being offered more by prostitutes for his services🡪it would be more likely to determine
that he has a stake in the venture
o U.S. v. Falcone: sellers of large quantities of yeastand sugar were absolved from participation in moonshining conspiracy
among distillers who bought from them
▪ Seller has to know of buyer’s intended illegal use AND has to show that by the sale he intends to further,
promote, and cooperate in the illegal use🡪Falcone knew none of that
o Direct Sales Co. v. U.S.: wholesaler of drugs was convicted of conspiracy to violate federal narcotics law by selling drugs to
codefendant physician who was supplying them to addicts
▪ Distributors of dangerous products should exercise greater discrimination in the conduct of their business than
those who distribute innocuous substances
▪ Further, wholesaler sold 300x the normal requirements of the drug
o Agreements can be inferred, but the supplier must share criminal purpose.
o How can supplier’s purpose be inferred?
▪ Stake in the venture
● Regina v. Thomas: D gave prostitute a room at an inflated rate and was living off the earnings of
prostitution
▪ If there’s no other legitimate use for their goods or services
● People v. McLaughlin: wire service information had no other use than to supply info needed by
bookmakers to conduct illegal gambling operations
● Shaw v. Director of Public Prosecutions: D published directory of ads of prostitutes🡪sole purpose was to
advertise services of prostitutes, thus he was a participant in the profits from that business
▪ Volume/proportion: is the volume of business with the buyer grossly disproportionate to any legit demand?
Are these criminal sales a high proportion of the supplier's total business?
▪ Serious crimes: can be inferred from knowledge alone
● Regina v. Bainbridge: A supplier who furnishes equipment which he knows will be used to commit a
serious crime may be deemed from that knowledge alone to have intended to produce the result
● But inferences from knowledge alone are not appropriate for less serious crimes (misdemeanors)
AFFIRMATIVE DEFENSES
▪ Wharton’s Rule (affirmative defense):
● A rule that prevents a conviction of conspiracy to commit a crime that only two or more people can commit.
● BASICALLY, Under Wharton’s rule, if a crime to be committed requires more than two people, then conspiracy would be
where there is an agreement by the number of people required to commit the crime, plus at least one other.
o Drug distribution: cant charge buyer and seller with conspiracy
● Abandonment/Withdrawal
o Conspiracy is considered abandoned when none of the conspirators is engaging in any action to further the
conspiratorial objectives
▪ If that inactivity continues for period longer than statute of limitations, prosecution will be barred
o Withdrawal: affirmative and bona fide repudiation communicated to co-conspirators
▪ Affirmative acts inconsistent with the object of the conspiracy and communicated in a manner reasonably
calculated to reach co-conspirators have generally been regarded as sufficient to establish withdrawal or
abandonment
▪ D either has to tell scheme to law enforcement or DIRECTLY communicate withdrawal to co-conspirators
● Just dissociating yourself is not enough (US v. Randall)
o Withdrawal is NOT an affirmative defense to the inchoate crime of conspiracy (successful withdrawal doesn’t shield D
from conspiracy charge itself). You cannot withdraw after the crime is complete. BUT withdrawal cuts off Pinkerton
liability for subsequent substantive crimes by co-conspirators.
PUNISHING CONSPIRACY:
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Punishment when conspirators have actually committed the object crime:
o Traditional view permits separate punishments, with consecutive sentences, for the object crime and the conspiracy to
commit it
o Federal Sentencing Guidelines have rejected separate punishments for conspiracy and the object offense
o But prosecutors still find a way
● 18 USC 371: conspiracy is punishable by up to 5 years imprisonment, regardless of the seriousness of the object
offense🡪punishment range is unrelated to the sentence associated with whatever crime is the target of the conspiracy
o So, someone who commits a crime by themselves may get less time than they would if they conspired
▪ BUT Maryland says: person who is convicted of conspiracy cant get longer punishment time than they would
for the crime that they conspired to commit
▪ Federal statute says if the object crime is a misdemeanor, punishment cant exceed the punishment authorized
for the misdemeanor
MPC ON CONSPIRACY (5.03)
● Conspiracy is an inchoate crime only (all about preparation).
o The MPC does not recognize Pinkerton liability (2.06(3))
▪ Imposes accomplice liability on conspirators for the substantive crimes of their co-conspirators only when the
strict conditions for accomplice liability are met.
● Requires Purpose + Agreement
o For less serious crimes only, an overt act by D or co-conspirators is also required🡪not very important in a lot of cases
● Merger rule: 1.07(b)
o Conspiracy does merge with a successful substantive crime.
● Renunciation rule (withdrawal): 5.03(6)
o This is an affirmative defense and it requires:
▪ Complete and voluntary renunciation and . . .
▪ Successfully thwarting the conspiracy’s success
▪
Actually stopping your co-conspirators (going to police, stopping them yourself, etc.)
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Most states say this is too strict🡪substantial effort to prevent crime is enough
▪
Merely dropping out of the conspiracy isn’t enough
▪
THIS IS A MINORITY RULE
Punishing Conspiracy:
o MPC says D may not be convicted of more than 1 offense if 1 offense consists only of a conspiracy or other form of
preparation to commit the other
▪ BUT if the objective is to commit multiple criminal objectives, MPC allows for cumulative sentences
DIFFERENCES B/W COMMON LAW AND MPC
● Conspiracy as a mode of liability:
o Common law: Pinkerton liability
o MPC: not recognized
●
Withdrawal:
o
Common law: not a defense to the inchoate crime; can cut off Pinkerton liability for subsequent crimes
o
MPC: affirmative defense; requires complete and voluntary renunciation and thwarting the conspiracy’s success
●
Merger rule:
o
Common law: conspiracy does not merge with substantive crimes
o
MPC: conspiracy does merge
ACCOMPLICE LIABILITY
COMMON LAW
Accomplice liability is a mode of liability only (charged with the same crime as the principal!)
● Participants in criminal conduct:
o Principal (1st degree): the actor, or absolute perpetrator of the crime
o Principal (2nd degree): the person who is present, aiding, and abetting the fact to be done
▪ Can either be within sight or hearing of the fact
▪ Can be there via constructive presence: keeping watch or keeping guard nearby
o Accessory: person who is not the chief actor, nor present at its performance, but is some way concerned therein, either
before or after the fact committed
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▪
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Telling someone or helping someone to commit the crime but don’t do it with them OR comforts them about
it afterward
Requirements of accomplice liability:
o Principal completed the crime (doesn’t have to be convicted, but the elements of the crime have to be proven w.r.t. the
principal; so accessory could be charged/convicted before principal)
▪
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There must be a guilty principal before there can be an accomplice
o His liability is dependent on the principal’s violating the law
o The D is guilty of the things that trigger aiding and abetting liability under statute
D could be charged with substantive crime and not just as an accomplice!
Mental State Requirement
o 2-pronged intent/purpose requirement:
▪ Intent to aid the principal; and
▪ Intent to facilitate the success of the crime
o Some states think that seriousness of offense should be considered in determining the mens rea required for complicity
▪ U.S. v. Fountain: Gometz was convicted of aiding and abetting other inmate who stabbed guard to death🡪he
gave the inmate the knife that was used to kill the guard
● Court held that Gometz didn’t need to know inmate’s purpose; it was enough that he knew when he
helped inmate get the knife that he would use it to attack the guards🡪KNOWLEDGE IS ENOUGH
o Court lowered mens rea from purpose to knowledge for serious crime
Accomplice liability approaches:
o Majority rule (AND MPC): same level of purpose as required for principal
▪ Roebuck: D and others lured man into an apartment where they ambushed and shot him and he died. D helped
to plan the ambush, but didn’t actually shoot man. Roebuck was charged and convicted of 3rd degree murder as
an accomplice. D appealed on the grounds that 3rd degree murder is unintentional killing, so he cannot be held
guilty as being an accomplice because a person can’t logically be guilty of intending to aid unintentional act.
● To be guilty as an accomplice to murder, D doesn’t necessarily have to intend that the victim die. It’s
enough that D acted with the culpable mental state required of the principal actor, and intentionally
aided the principal actor in the commission of the crime. In this case, the culpable mental state
required for third degree murder is recklessness. This culpability requirement is not tied to the
result, i.e. the unintentional killing of the victim. It is enough that Roebuck acted with recklessness.
● Accomplice must have specific intent to further the underlying conduct committed by the
principal, but for the result, he need only have the mens rea required for the result element of
the substantive offense
o Minority rule: must have purpose with respect to the results
Aider’s Mens Rea
●
With respect to:
Majority (and MPC) approach
Alternative approach
Providing the aid
Purpose
Principal’s criminal act
Purpose
Knowledge
(quite uncommon)
Results
Same as required for principal
Purpose
Attendant circumstances
No clear majority, no MPC position.
One approach: same as required for
principal.
Purpose
Natural and Probable Consequences Doctrine
o Intent is satisfied if
▪ D intended to assist Crime A, and
▪ The charged crime (Crime B) was an objectively foreseeable result of the principal’s carrying out of Crime A
o Luparello: Luparello wanted to know where his ex was. He asked his friends to check with a guy named Mark and told
them to get the info “at any cost.” His friends went and confronted Martin, but he didn't give them the information, so
they shot him dead. Luparello charged with 1st degree murder
▪ Court held that Luparello's liability was vicarious. “He is guilty not only of the offense he intended to facilitate
or encourage, but also of any reasonably foreseeable offense committed by the person he aids or abets.”
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“Liability is extended to reach the actual crime committed, rather than the planned or
“intended” crime, on the policy that aiders and abettors should be responsible for the
criminal harms they have naturally, probably, and foreseeably put in motion.”
▪ Basically, this case says that you can be criminally culpable for the crimes of your associates if you encourage
them to act, even if they then take further actions you didn’t intend.
● The further actions must be reasonably foreseeable though.
o Most states don’t endorse this doctrine
o NPC vs. Pinkerton:
▪ NPC doesn’t require agreement
▪ NPC doesn’t impose in furtherance test (just foreseeability)
▪ Conspiracies are sometimes broader in scope than aider-principal relationships
▪ Pinkerton is more widely recognized
Act Element: any material aid (just have to make the crime easier)
o Passive behavior isn’t enough
▪ Onlookers: mere presence isn’t enough for accomplice liability
▪ BUT 48 states have outlawed the knowing and intentional presence at a dogfight, and other states have done
the same for being present at drag races
o But minor encouragement can be enough to have you liable!
▪ Wilcox: Musician was in England illegally and guy writing about the concert was charged with aiding and
abetting his crime.
● Court held that he knew the concert was illegal, supported the concert with his attendance, and used
the review about the show to sell magazine🡪encouragement/support
● This also establishes that but for relationship not necessary🡪Hawkins performed without
Wilcox’s support!
▪ Hicks: Hicks and Colvard were riding down the street horseback when they met Rowe. According to witnesses,
there was a conversation. Rowe pointed a gun at Colvard a few times. Hicks said to Colvard, “Take off your hat
and die like a man.” Then Rowe shot Colvard, killing him.
● Encouraging someone to shoot (if that was actually your purpose) makes you just as guilty of murder
as the person who pulls the trigger. However, just being there is not enough, you have
to intentionally encourage them.
o Can only be criminally culpable if the words were actually intended as encouragement. If they
were for another purpose🡪not liable
Causation
o Majority rule: Contribution, but no but-for causation, is required
▪ Aid must merely make crime easier, even if in all probability the crime would have been committed without it
▪ If your efforts to help are useless, the causation requirement won’t be met. You have to have made the
crime easier.
● Even a minimal possibility of actual aid or encouragement suffices for accessorial liability
▪ Tally: Ross seduced Tally's sister-in-law. Her brothers, the Skeltons', rode off on horseback to go get Ross. Tally
had no prior knowledge of the Skeltons' intentions. He learned about it after they left. Ross's relative sent a
telegram to Ross telling him to watch out. Tally intercepted the telegram so Ross never received it.
● Although the Skeltons never knew about Tally's involvement, and never received any assistance from
him, he still aided and abetted their crime because he rendered it easier for the principal actors to
accomplish their ends🡪intercepted the telegram
● The Court found that they didn't require proof that the Ross would have gotten away if he had
received the telegram.
o In other words there is no requirement of a but-for relationship between the defendant's
actions and the criminal conduct of another.
o Minority rule: Substantial contribution, but no but-for causation, is required
Attempt to Aid
o You can be convicted of attempt to aid and the sentence will correspond to attempt law
o Genoa: The underlying crime has to be committed by someone to find accomplice liability
Withdrawal
o Not liable if:
▪ Stop helping before commission of the crime; and
▪ Wholly deprive prior help of effectiveness
o If it’s too late to “take back” your prior assistance, you’re on the hook unless you find some other way to successfully foil
the crime (if the crime hasn’t been completed, you can’t be liable as an accomplice for it!)
MPC 2.06, 5.01
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Mental State Requirement
o
3(a): Requires purpose of facilitating the crime (i.e., the criminal act)
▪ A person can only be held criminally culpable for offences “fairly envisaged in the purposes of the association.
But when a different crime has been committed, thus involving conduct not within the conscious objectives of
the accomplice, then he is not liable for it."
o
4: Mental state required w.r.t. result: tracks requirement for principal (exception to the purpose rule)
● Attempt to Aid
o
2.06(3): attempt to aid is a separate inchoate crime
▪ A person who engages in conduct designed to aid another to commit a crime that would establish his complicity
under 2.06 if the crime were committed by the other person, is guilty of anattempt to commit the crime if the
crime isn’t committed or attempted by the other person.
▪ Example: if you shout words of encouragement to deaf person🡪no liability
o
5.01(3): alternative accomplice liability
●
MPC rejects the natural and probable consequences doctrine🡪you have to have the purpose
●
Withdrawal [2.06(6)(c)]:
o
Stop helping before commission of the crime; and
o
Wholly deprive prior help of effectiveness.
o Terminating accomplice doesn’t need to prevent crime from occurring, but needs to make some act demonstrating to the
principals of the crime that he has withdrawn (in a manner and at such a time that the principals could do likewise)
▪
You must do something to counter your prior complicity
▪
The actions sufficient to deprive the prior complicity of effectiveness vary with the type of accessorial
behavior
▪ Encouragement? Accomplice must make her disapproval known to the principals sufficiently in advance of the
commission of the crime to allow them time to reconsider as well
o If it’s too late to counter your prior complicity, a timely warning to the authorities or other “proper effort” to prevent the
crime will suffice, even if the crime is not ultimately successfully foiled and your assistance never was deprived of
effectiveness (2.06(6)(c)(ii)).
DIFFERENCES
● Mental state requirement
o Common law: you’re liable for the acts of your associates if you encourage them to act (as long as acts are foreseeable)
o MPC: only liable for the acts of your associates if you actually planned those crimes with them (purpose)
● Withdrawal after it’s too late to counter your prior complicity
o Common law: it’s too late unless you successfully foil the crime
o MPC: timely warning to authorities or other proper effort prevent crime
● Attempt to aid
SENTENCING
Cruel and Unusual Punishment (8th amendment)
● A punishment that is inherently cruel (torture, corporal punishment, prison overcrowding, methods of execution)
● Inherently barbaric
● Discriminatorily/arbitrarily applied
● Grossly disproportionate to the crime committed
o Death for any non-murder, juvenile, mentally disabled
o Life without parole for juvenile non-murderer
o Juvenile murderer if life without parole isn’t necessary
● Coker: Held death penalty cruel and unusual as applies to defendants convicted of rape.
o Court is trying to see if he got an outlier sentence🡪they’re emphasizing only what Coker’s crime was in that case, and not
the fact that he is a murderer?
o A punishment is excessive, and therefore unconstitutional if it:
▪ (1) Makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the
purposeless and needless imposition of pain and suffering, (never used to strike down law), or
▪ (2) Is grossly out of proportion to the severity of the crime.
Courts have imposed strict standards on the death penalty and life without parole
● Usually death can only be used to punish death🡪high level of scrutiny
Prison sentences that SCOTUS has upheld:
● Harmelin: D got life without parole for possession of 672 grams of coke
● Ewing v. California: D got mandatory life (with parole possible after 25 years) for stealing 3 golf clubs
o He had 7 priors, including burglary and battery
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o
o
California’s 3 strikes and you’re out law is constitutional
Whether a sentence is so disproportionate that it violates the Eight Amendment will turn on:
▪ (1) The gravity of the offense and the harshness of the penalty
▪ (2) The sentences imposed on other criminals in the same jurisdiction, and
▪ (3) The sentences imposed for commission of the same crime in other jurisdictions
● Rummel v. Estelle: D got mandatory life (with parole possible) for fraudulently obtaining $120
o He had 2 priors, 2 frauds totaling $110
Prison sentences that SCOTUS has struck down:
● Solem v. Helm: D got mandatory life without parole for passing a bad check
o He had 7 nonviolent priors
8th Amendment Proportionality Considerations
● Retributive proportionality: punishment vs. crime
● Capacity/traits of defendant
● Other punishment theories (consider past record of D?)
● Sentencing practice: is it unusual?
POLICY considerations:
● Should proportionality be assessed only with respect to the crime being sentenced for?
● Can disproportionate sentences (in the retributive sense) be justified by other sentencing theories?
● Should “evolving” norms and practice of other jurisdictions matter?
● Should these questions be constitutionalized at all?
Section 3553(a)(2) Factors (factors to be used in imposing a sentence):
● The need for the sentence imposed
o Retribution/Promote Respect for Law
o Deterrence
o Incapacitation
o Rehabilitation
● Courts will also look to the nature and circumstances of the offense and history and characteristics of the defendant
Sentencing is either discretionary OR mandatory
● How do you reconcile?
● Want sentences to be tailored to the facts of each case?
Reasons for moving to mandatory sentencing schemes
● Broad discretion creates risk of disparity in sentencing
● Inter-judge (soft sentences from liberal judges)
● Inter-district/regional (extreme disparities in treatment of like cases)
o Sometimes judges influence one another
● D’s (or victim’s) race, sex, socio-economic status
Criticisms of Mandatory Sentencing:
● Discretion just shifts from judge to prosecutor🡪prosecutor determines what sentence you get by choosing what to charge you
with
● Also lots of power for probation officer who submits pre-sentence report
● Mandatory minimums don’t allow exceptions for people who are less culpable than others
● As a consequence of prosecutors offering compromises on the facts and low plea bargains to get more cases off the docket, there
was a push for “real offense” sentencing – judges should sentence Ds to what they actually did, and not just what they agreed to.
Competing Objectives in Sentencing
● Allowing appropriate individualization
● Avoiding unwanted disparity
Facts/Evidence at Sentencing:
● Parties’ stipulation
● Presentence Investigation Report
● Testimony at sentencing hearing
● Evidence from trial (if there was one)
Real-Offense Sentencing:
● Within the statutory range allowed by the crime of conviction, the sentence is chosen based on all relevant conduct, found by a
preponderance of the evidence.
● Sentencing guidelines allow other facts to be taken into consideration
● Issue with this: sometimes things you were acquitted for (if you were guilty of something else) might be brought in if judge thinks
you should have been convicted based on preponderance.
o Findings of fact can change how you can be sentenced
● Aggravating factors vs. mitigating factors:
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Aggravating factors change legal sentencing range🡪change the min/maximum up (but has to be proven BARD)
▪ Aggravating factors could become a factor
▪ Assault could become aggravated assault
Types of Prosecutorial Discretion:
● Charging
● Plea-Bargaining over:
o Charges
o Sentencing Facts
o Sentence Recommendations
Why did the Guidelines strengthen prosecutors?
● P’s decisions mostly determine the sentence.
● Harshness
● Results: Increased bargaining leverage; more pleas; longer sentences.
Racial Disparities under the Guidelines
Under mandatory sentencing, racial disparities are just worse.
● One major reason is disparity in sentencing for crack/powder cocaine
● Even controlling for that, still disparity. Suggests prosecutors are more racist than judges.
Real Offense Sentencing and the Constitution
● Apprendi v. New Jersey: unconstitutional for judge to find key fact (bias motive in hate crimes case) by a preponderance of the
evidence. Any fact that increases the penalty for a crime beyond the proscribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt.
● Blakely v. Washington: Judge’s sentence of 90 months (departure from maximum of 53) found unconstitutional because it violated
6th amendment right to trial by jury.
o Otherwise, a judge could sentence a man for committing murder even if the jury convicted him only of illegally
possessing the firearm used to commit the murder.
● United States v. Booker: Sixth Amendment requires that a guideline’s mandated increase in the maximum sentencing exposure of
a federal defendant can only be implemented on the basis of facts found by the jury beyond a reasonable doubt.
o Remedy: federal guidelines are advisory, not mandatory
o Guidelines sentencing factors don’t change D’s legal sentence exposure
Core holding of all these cases: Any FACT that INCREASES D’s MAXIMUM SENTENCING EXPOSURE must be found by a
JURY Beyond Reasonable Doubt (or admitted by D).
● If range is 4-10 mos., judge can sentence D to 10 mos. Based on factors not proven by a jury beyond a reasonable doubt.
A sentence within the guidelines is presumptively legitimate, but a sentence outside of the guidelines is not presumptively illegitimate.
Sentencing Reform Efforts:
● Curtailing mandatory sentencing laws
● Overcrowding litigation
● Parole and reentry reform
● Diversion/treatment courts
● Drug legalization
● Bail reform: reduction of pretrial incarceration
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EXAM INFO
●
Interpreting Criminal Statutes: Key Skills So Far
o Pick out elements of statutory definition
o Recognize familiar terms (e.g., “recklessly,” “possession”)
o Begin to apply statutory interpretation rules to resolve ambiguities
o Think about how policy affects interpretation
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Some key policy themes
o Punishment justifications
o Individual/Social Costs & Distributive Concerns
o Choice of Decision maker (judge/jury/prosecutor/legislature) & Deference Standards
o Notice to Defendants
o Burdens of Proof & Evidentiary Inferences
Things To Consider When Assessing A Case
● What is the issue?
● Sufficiency of the Evidece- Did the prosecutor have enough evidence to prove beyond a reasonable doubt that a
crime was committed?
● What are the elements of the crime that must be fulfilled in order to convict? Break the statute down into
words/phrases and determine if those are satisfied or whether ambiguity exists
● Defense’s argument?
● Prosecutor’s argument?
● Which theory to use?
● Is there a mental state requirement? Act requirement? Is that satisfied?
● Is the action excused or justified?
● When considering proportionality of punishment (8th Am. violation), the court will look at 1) the gravity of the crime,
2) the harshness of the sentence, and 3) the sentencing of similar crimes in other jurisdictions.
● Which law to apply? Federal statute, Model Penal Code, Or Common Law? Note the important differences.
John Landis case
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Murder involves malice aforethought🡪Section 187🡪MURDER
o Express malice🡪deliberate intention unlawfully to take away the life of a fellow creature
o Implied malice🡪circumstances show an abandoned and malignant heart
o Has to also be the intentional doing of an act with express or implied malice
Section 192🡪MANSLAUGHTER
o Manslaughter: unlawful killing of a human being without malice
▪ Voluntary: upon sudden quarrel or heat of passion
▪ Involuntary: In the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful
act which might produce death, in an unlawful manner, or without due caution and circumspection….
▪ Driving of a vehicle
People v. Matta
o Malice aforethought🡪willful doing of an act under such circumstances that there is obviously a plain and strong
likelihood that death or great bodily injury may result
Implied-malice murder
o “When the circumstances attending the killing show an abandoned and malignant heart” –CPC Sec. 187
People v. Penny
o “Lack of due caution and circumspection”
▪ Criminal negligence aka “such a departure from what would be the conduct of an ordinarily prudent or careful
man under the same circumstances as to be incompatible with a proper regard for human life.”
o Penny on foreseeability and involuntary homicide liability
▪ Liability for involuntary homicide can only accrue if the actor could have reasonably foreseen that his actions
would have resulted in a death. The death must have been the natural and probable result of a reckless or
culpable negligent act
In the present case, the prosecution’s defense is insufficient to support either a murder or manslaughter conviction
o No obviously plain and strong likelihood of death (Matta)
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Death was not reasonably foreseeable (Penny)
Only thing that was discussed was damage to the helicopter
▪ Landis did not know that there could be enough damage to cause death (decapitation)
Phillips tests requires awareness of engaging in conduct that endangers the life of another
▪ Here, there is no such awareness🡪only aware of possible damage to helicopter. As such, murder charge should
be thrown out
Manslaughter charge should be thrown out
▪ Not reasonably foreseeable that his act of telling the helicopter to go lower would result in death
● Intervening cause led to the deaths
TONY Problem: MPC Murder Theories: Accidental Death
o MURDER: “committed recklessly under circumstances manifesting extreme indifference to the value of
human life.”
▪ Magnitude of risk he’s taking don’t rise to indifference to human life
● No extra callousness
o MANSLAUGHTER: “committed recklessly.”
o NEGLIGENT HOMICIDE: “committed negligently.”
▪ Difference between manslaughter and negligence homicide is only important if D has inaccurate
appraisal of the facts
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