Criminal Law I Outline
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EXAM
o To perform well on the exam, students must be able to:
 Identify the criminal law issues that might arise from a given fact pattern
 Apply the appropriate doctrine or rule to each issue
 Make a well-reasoned argument supported by case names, doctrinal tests or rules, trends
in criminal law, policy arguments, historical events, and any other references that serve to
bolster your analysis
 Identify and consider counter-argument(s)
 Explain why the argument is still valid despite the counter-argument(s)
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INTRODUCTION
o Proof of Guilt
 Beyond a Reasonable Doubt
 Court has never required a specific jury instruction, but there are some
instructions that would violate DPC
 Owens v. State (Md. 1992, p. 14)
o ∆ found parked in driveway with lights on and car running, passed out
 Various Options
o Moral Certainty
o Firmly Convinced
o No Waiver/Vacillation
o No Real Doubt
o Thoroughly Convinced
o Jury Nullification
 State v. Ragland (N.J., 1986, p. 19)
 Jury has power to nullify but courts are not required to instruct jury on it
 May instruct jury that they “must convict” if state makes proof BRD
 Most states prevent ∆ from making nullification arguments to jury
 Safety valve rationale
o ∏ must prove beyond a reasonable doubt:
 Actus Reus
 Voluntary Act
 Social Harm
 Causation
 Actual
 Legal
 Mens Rea (unless SL)
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PRINCIPLES OF PUNISHMENT
o Intro
 Some Constitutional Provisions rely on punishment
 Double Jeopardy Clause
 Ex Post Facto Clause
 Cruel and Unusual Punishment Clause
 Kansas v. Hendricks (US)
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Sex offender must stay confined after sentence, not criminal punishment, but like
civil commitment
o Two Theories
 Retribution
 Negative
o Guilt is a necessary, but not sufficient condition of punishment
o Kant (p. 40)
 Must be found guilty and punishable before punishment is proper
 Positive
o Guilt is a necessary and sufficient basis for punishment
o Kant (p. 41)
 Every murderer must be executed before leaving
 “The dessert of his deed”
o Criticism
 Idea that punishment is always justified upon finding of guilt does
not necessarily further society’s interests
 Morris (p. 43)
o Punishment restores benefits and burdens of society
o Also shows respect to the punished, by recognizing their freedom of
choice, and their ability to face the consequences of their actions
 Victim Vindication
o A criminal makes a false claim of superiority over a victim
o Must suffer a comparable injury in order to bring him back down
 Utilitarian
 Intro
o Forward- rather than backward-looking
o Punishment is not favored unless benefits to society exceed costs
 Four Justifications
o General Deterrence
 Deter other people from committing the crime
o Individual Deterrence
 Deter ∆ from breaking the law again
o Incapacitation
 Public safety
o Reform
 AKA rehabilitation
o Distribution of Punishment
 Who should be punished?
 Dudley and Stephens
o Guys in boat who killed the weakest link for survival, though convicted
(not justified or excused) had their sentence suspended
 How much punishment is appropriate?
 People v. Du (CA 1992, p. 51)
o Court granted probation + comm. service after ∆ shot V as V began to
walk away after scuffle
o Sentencing Criteria
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 Protect society
 Punish the defendant
 Encourage D to lead law abiding life
 Deter others isolate the D so they cannot commit other crimes
 Secure restitution for the victim
 Seek uniformity in sentencing
o Proportionality of Punishment
 Retributivist
 Gravity of Offense
o Harm caused by offender, to V, society
 Moral Blameworthiness
o Looking at ∆’s mental state
 Jus talionis
o Eye for an eye, Kant
 Utilitarian
 Bentham (p. 50)
o Punishment should exceed reward from crime
o The greater the mischief, the greater the punishment
o Grade offenses so people will choose least mischievous offense
o No more than necessary to achieve utilitarian goals
 Constitution
 Eighth Amendment
o Prohibits excessive fines, cruel and unusual punishment
o Court says grossly disproportionate = cruel and unusual
 Coker v. Georgia (US 1977, p. 72)
o Court held DP C&U for rape of adult woman
o Few states, rarely/inconsistently used, racially biased
 Kennedy v. Louisiana (US 2008, p. 78)
o DP for child rape also C&U
o If we impose death for rape, then ∆ might as well kill victim after rape
 MPC § 1.02(2)
 Render punishment w/i range of severity proportionate to gravity of offense,
harms done to V, and moral blameworthiness of ∆
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MODERN ROLE OF CRIMINAL STATUTES
o Principle of Legality
 Introduction
 ∆ c/n be convicted of a crime unless conduct was defined as a crime before act
 Three Corollaries
o Criminal statutes must be understandable
o c/n delegate policy matters to police, judges, and juries on ad hoc basis
o Rule of Lenity
 Conflicting reasonable interps = ambiguity resolved in ∆’s favor
 Only if after looking at all possible sources for answering the
question, we can do no more than guess at Congress’ intent
 MPC rejects: should be interpreted to further purpose of code, stat.
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Common Law Offenses
 Almost all states have abolished CL criminality
 Commonwealth v. Mochan (Pa. 1955, p. 92)
o Conviction for non-statutory “debauching and corrupting” upheld
o d/n violate principle of legality b/c “injuring the public morals”=CL crime
 Keeler v. Superior Court (Ca. 1970, p. 95)
o Murder statute d/n include feticide
o Murder statute incorporated CL meaning of murder when it was passed
o Court c/n expand meaning to include feticide
 Jurisdictional
 It is legislature’s job to determine what is crime
 Constitutional
 Ex post facto, DPC notice
o Dissent: viable fetus is considered human, and this is foreseeable
Vagueness and Overbreadth
 Overbreadth captures too much; Vagueness d/n make clear what is proscribed
 In re Banks (N.C. 1978, p. 105)
o ∆ convicted of “secretly peeping into room occupied by female person”
o Court upholds; though the statute seems to proscribe behavior which it
cannot mean to proscribe
 Papachristou v. Jacksonville (US 1972)
o DPC forbids enforcement of any statute that vests virtually complete
discretion to the police to determine whether suspect has violated it
o Court struck ordinance prohibiting being drunkard, rogue, vagabond, lazy
 Chicago v. Morales (S. Ct. 1999, p. 113)
o Prohibited loitering with criminal street gang members in any public place
o Loitering = remaining in any one place w/ no apparent purpose
o Cops could issue a dispersal order, and if ignored, statute violated
o No adequate DPC notice (two J.s joined)
 How is a person to know who is a gang member?
 Definition of loitering, “apparent purpose” too vague
o Too much discretion for cops
o Scalia, dissenting
 Prophylactic solutions, like speed limits, or being required to move
from scene of accident when so ordered by cops, are permissible
ACTUS REUS: THE ELEMENTS OF A CRIME
o Requirements
 Need voluntary act, social harm, and causation
o Voluntary Act
 There is a voluntariness element implied in all crimes
 Martin v. State (Al Ct. App. 1944, p. 128)
 Statute prohibits appearing in public being drunk and boisterous
 Elements
o Intoxicated
o Public Place
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o Manifest drunkenness by being boisterous
 Public element not met, b/c police forcibly removed him from his home to a
public place; being in public was the prohibited conduct
 Distinguish from Involuntary Act
 Hitting someone during an epileptic seizure is involuntary: body did it, not “you”
 If Jill points a gun at Jack and tells him to do something, and Jack does it, Jack’s
act itself is voluntary
 Distinguish from Mens Rea
 Example
o Carl aims at target and pulls trigger to try and hit the target
 This was a voluntary act
o Dorothy, unforeseeably, walks between the gun and the target as Carl
pulls trigger, and she gets hit and dies
 No mens rea for murder; d/n intend to cause social harm
 State v. Utter (Wa. Ct. Apps. 1971, p. 130)
 ∆ claims automated/conditioned response in stabbing nephew while drunk
o He served in ‘nam and was trained in killing a man with a knife
 General Rule
o The absence of consciousness not only precludes the existence of any
specific mental state, but also excludes the possibility of voluntary act
o But there is an exception for voluntarily induced unconsciousness
 Court finds insufficient evidence of involuntariness to submit question to jury
 Erroneously describes defense as insanity (irresistible impulse)
 People v. Decina (p. 134 n.6)
 Voluntary act of driving car while knowingly epileptic is sufficiently voluntary
for a crime of negligence
 Every element need not include a voluntary act; just need one voluntary act
(whatever the prohibited conduct/result is)
 MPC § 2.01(1)
 Person not guilty of offense unless his liability is based on conduct that includes a
voluntary act or the omission to perform an act of which he is physically capable.
 MPC § 2.01(2)
 The following are not voluntary acts within the meaning of this Section:
o Reflex or convulsion;
o Bodily movement during unconsciousness or sleep;
o Conduct during hypnosis or resulting from hypnotic suggestion;
o Bodily movement that otherwise is not a product of the effort or
determination of the actor, either conscious or habitual.
o Omissions (AKA Negative Acts)
 General Rule: No criminal law duty to prevent harm to another, even when no risk to self
 Exceptions
 Statute imposes a duty
o Such as statute prohibiting “active concealment” of a felony
o Good Samaritan laws
 ∆ has status relationship with another (Doctor-patient; Parent-child)
 Contractual duty of care (express or implied by K, like babysitter)
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∆ voluntarily assumed care of another and secluded them so as to prevent others
from rendering aid
 ∆ created the risk of harm to another
 People v. Beardsley (Mi. S. Ct. 1907)
 ∆ and gal get wasted; she takes morphine, he sees it, she dies
 Court finds no duty, so ∆ is not liable for manslaughter
 Had this been a marriage, might have been a duty (contract/status relationship)
 Causation would have been difficult to prove here
o V took pills; had ∆ taken perfect actions, she still may have died
 MPC § 2.01(3)
 Liability for the commission of an offense may not be based on an omission
unaccompanied by action unless:
o Omission is expressly made sufficient by the law defining the offense; or
o Duty to perform the omitted act is otherwise imposed by law
 Distinguishing Acts & Omissions
 Barber v. Superior Court (Ca Ct. Apps. 1983, p. 142)
o Doctors, per family’s wishes, pulls patient off life support/nourishment
o Court defined conduct as omission rather than act, reversed conviction
o No duty to patient b/c wife was acting as a surrogate and asked doctors to
withdraw care
o Social Harm
 Results Elements vs. Conduct Elements
 Result elements prohibit a result
o Unlawful killing of a human being; social harm is in result
 Conduct elements prohibit specific conduct w/o requiring any specific result
o Driving under the influence; social harm is in risk-taking
 Some statutes may contain both types of elements
o Operating vehicle in reckless manner causing the death of another
 Attendant Circumstance elements
 Part of the actus reus of a crime
 Fact or condition must be present when actor performs the prohibited conduct or
causes the prohibited result
 Example
o It is an offense to drive an automobile in an intoxicated condition
 Burglary is “breaking and entering a dwelling house of another at nighttime with the
intent to commit a felony therein.”
 “with the intent to commit a felony therein” = Mens Rea
 Breaking = conduct
 Entering = conduct/result
 Dwelling house = attendant circumstance
 Of another = attendant circumstance
 At nighttime = attendant circumstance
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MENS REA: THE MENTAL STATE ELEMENT
o Nature of Mens Rea
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Intro
 Need “evil-meaning mind + evil-doing hand” for criminal liability
 Broad meaning (culpability)
 ∆ is guilty if she commits the social harm of the offense with any morally
blameworthy state of mind
 Narrow meaning (elemental)
 ∆ is not guilty of offense, even if she had morally blameworthy mind, if she lacks
the mental state specified in the definition of the crime
 Regina v. Cunningham (Eng. 1957, p. 151)
 ∆ stole gas meter in order to sell it; it leaked gas and nearly killed another tenant
 Elements
o Mens rea
 Maliciously
o Actus Reus
 Conduct: administer/cause
 AC: by any person
 AC: any poison . . .
 Result: So as to endanger life of the person
 Trial court defined maliciously as anything that is wicked
o This is a broad reading of mens rea
 Ct. Apps. reverses, finding instruction too broad
 ∏ needed to show
o (1) ∆ actually intended the particular social harm that occurred here; or
o (2) ∆ was reckless as to whether it should occur
o General Issues in Proving Culpability
 Intent
 ∏ must show intent to cause social harm attached to conduct/result
o Usually easier to show social harm intended in conduct element than in
result element
 People v. Conley (Ill Ct. App. 1989, p. 153)
o ∆ attempted to hit someone with a wine bottle, but hit someone next to
him, causing broken jaw, permanent lip numbness
o MR
 Intentionally or knowingly
o AR (Result element)
 Causes great bodily harm; or
 Permanent disability or disfigurement
o Issue is whether he had requisite MR for the result
o Presumption: one intends natural and probable consequences of his actions
o Court finds there was sufficient evidence for jury to find that ∆ intended
result, or knew that it was “practically certain”
 Transferred Intent
o If ∆ intended to cause harm to one person but accidentally harmed
another, ∆ still has mens rea
o If he aimed at and shot A, but accidentally hit B, is still liable for murder
o Works where the crime intended and the harm done are the same
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o But intent c/n transfer from one type of crime to another
 General vs. Specific Intent
o Intro
 Very confusing, and MPC abandons distinction
 Specific intent offenses can contain general intent elements
o General Intent Crime
 Offense w/ mental state element relating solely to prohibited
conduct or result
 If a statute contains no mens rea terms (intentionally, knowingly,
etc.) it will ether be general intent or strict liability
 If GI with no mens rea terms: Culpability Standard
 Did ∆ act with some morally blameworthy state of mind?
 Or intentionally/recklessly? (narrow)
o Specific Intent Crime
 Includes intent or purpose to do some future act or to achieve some
future consequence beyond the prohibited conduct/result of AR
 Possession of marijuana w/ intent to distribute
 Offensive contact with intent to cause humiliation
 Provides that actor must be aware of an AC
 Intentional sale of obscene material to a person known to be
under the age of 18
MPC Approach
 MPC § 2.02 gets rid of general-specific dichotomy and replaces them with four
levels of culpability
o Purposeful
o Knowing
o Reckless
o Negligent
 Three areas of improvement over CL
o Adopts elemental meaning of mens rea and abolishes culpability meaning
o Abolishes distinction between general and specific
o Abolishes countless terms like “wicked” and replaces them with only four
terms
 Definitions (p. 968)
o Purposefully – 2.02(2)(a)
 (i) Conduct/Result Elements:
 It is his conscious object to engage in conduct of that nature
or to cause such a result; and
 (ii) AC Elements:
 He is aware of the existence of such circumstances or he
believes or hopes that they exist.
o Knowingly – 2.02(2)(b)
 (i) Conduct/AC Elements:
 He is aware that his conduct is of that nature or that such
circumstances exist; and
 (ii) Result Elements:
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He is aware that it is practically certain that his conduct
will cause such a result.
o Recklessly – 2.02(2)(c)
 ∆ consciously disregards a substantial and unjustifiable risk that
the material element exists or will result from his conduct
 Risk must be of such nature and degree that, considering nature &
purpose of ∆’s conduct and the circumstances known to him, its
disregard involves a gross deviation from the standard of conduct
that a law-abiding person would observe in ∆’s situation.
o Negligently – 2.02(2)(d)
 ∆ should be aware of substantial and unjustifiable risk that the
material element exists or will result from his conduct
 Risk must be of such nature and degree that ∆’s failure to perceive
it, considering the nature and purpose of his conduct and the
circumstances known to him, involves a gross deviation from
standard of care that RP would observe in the ∆’s situation.
 When no MR term specified
o MPC § 2.02(3)
 If no MR term specified, ∏ must show that ∆ acted purposefully,
knowingly, or recklessly
 MPC and Transferred Intent
o Basically codifies the CL rule
o MPC 2.03(2)
 When purposely or knowingly causing a particular result is an
element of an offense, element is not established if the actual result
is not within purpose or contemplation of ∆ unless:
 (a) Actual result differs from that contemplated, only in the
respect that a different person or different property is
affected or that the harm contemplated would have been
more serious or more extensive than that caused; or
 (b) Actual result involves same kind of harm as that
contemplated and is not too remote or accidental in its
occurrence to have a [just] bearing on ∆’s liability or on the
gravity of offense.
Knowledge
 State v. Nations (Mo. 1984, p. 165)
o “knowingly endangering welfare of child under 17,” exotic dancer
o V says she was getting her ID to show ∆ when police stopped her, after ∆
asked for it
o ∏ argues ∆ engaged in willful blindness in failing to investigate
o Under MO law, this is not enough to establish knowledge
 MPC § 2.02(7) – Willful Blindness
o Knowledge exists when person is aware of a high probability of the
element’s existence
Problems in Statutory Interpretation
 Flores-Figueroa v. United States (US 2009, p. 170)
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o ∆ charged with “knowingly . . . using without lawful authority a means of
identification of another.”
o Issue: whether law requires knowledge that ID belongs to another person
o ∆ used false SSN, but did not know it belonged to a real person
o Court holds that “knowingly” applies to the whole crime
o Most natural reading of statutory language
 Knowingly is at beginning, so naturally applies to rest of sentence
 Knowingly ate a sandwich with cheese
 Liparota v. United States (1985)
 “Whoever knowingly uses food stamps . . . in any manner
not authorized by law”
 Required knowledge that not authorized by law
 United States v. X-Citement Video (1994)
 “Knowingly” was found to apply to use of minor in
pornography, even though terms in separate subsections
o Where clause set off by commas, knowingly modifier may not apply
 i.e. “Knowingly, without authorization, uses an ID”
o Legislative History was inconclusive
o Court says this will make enforcement more difficult, but law will apply to
situations where someone steals an ID and uses it
 This is probably the conduct intended to be proscribed
 MPC 2.02(4)
o When the law defining an offense prescribes the kind of culpability that is
sufficient for the commission of an offense, without distinguishing among
the material elements thereof, such provision shall apply to all the material
elements of the offense, unless a contrary purpose plainly appears.
o Strict Liability & Public Welfare Offenses
 Staples v. United States (US 1994, p. 177)
 AR-15 case
 Presumption is against strict liability, even where MR not explicit in statute
o Exception
 Public Welfare offenses
 ∆ is dealing with a dangerous item
 Severe penalty indicative of a lack of congressional intent to allow SL
o But see United States v. Balint (US 1985)
 Court upheld conviction for unlawful sale of opium/coca
derivatives despite lack of proof of knowledge, despite 5-yr sent.
 Legislative Intent not clear from statute
 Garnett v. State (ML 1993, p. 186)
 Court upholds conviction of 20 y/o mentally retarded ∆ against 13 y/o
 Plain language, comparison w/ other statutes, and leg hist show no MR required
 Dissent
o Distinguishes this from a regulatory offense where SL is more common
o Sever penalty also advises against SL
o No indication that legislature intended crime to apply under these facts
o Compares w/ minor having sex with adult while adult is passed out
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 But there would probably be no voluntary act (AR) there
 MPC and Strict Liability
 SL disfavored under MPC
 § 2.05
o SL only allowed for violations
 § 2.02
o No criminal conviction may be obtained unless ∏ proves some form of
culpability regarding each material element of the offense
 § 1.04(5)
o Violations are offenses that can result on no imprisonment nor probation
o Mistake of Fact
 Introduction
 A mistake of fact may exculpate defendant by negating mens rea
 Procedure
 Burden of proof borne by ∆ to show evidence that mistake negates mens rea
 Then burden shifts to ∏ to rebut, beyond reasonable doubt, that either there was
o No mistake; or
o Mistake does not negate MR
 Analysis
 Strict Liability Crimes
o Mistake is never a defense
 Specific Intent Crimes
o Does mistake negate SI portion of the offense?
 If yes, ∆ must be acquitted whether mistake was reasonable or not
 If no, mistake is no defense
 General Intent Crimes
o Does the mistake negate the mens rea of the offense?
 If yes, was mistake reasonable?
 If yes, ∆ must be acquitted
 If no, mistake is no defense
 People v. Navarro (Ca. 1979, p. 194)
 ∆ convicted of petty theft, which codifies common law larceny: “trespassory
taking and carrying away of personal property of another w/ intent to steal it
o A specific intent crime
 ∆ claims he thought the beams were abandoned, but they were not
 Court overturns conviction, because trial court instructed jury that ∆’s mistake
had to be reasonable; need not be reasonable to negate SI portion of offense
 Model Penal Code Approach
 Adopts an elemental approach to all mistake of fact cases
 No GI-SI distinction
 § 2.04(1)
o Mistake of fact is a defense if it negates the mental state required to
establish any material element of the offense
 Or if there is a statutory mistake defense specified
o “Material” is defined at § 1.13(10)
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d/n relate exclusively to SOL, jurisdiction, venue, or to any other
matter similarly unconnected w/ the harm or evil, incident to
conduct, sought to be prevented by the law defining the offense
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§ 2.04(2)
o Mistake of fact is no defense if ∆ would be guilty of another offense if the
situation were as he supposed
o Reduces grade/degree of offense to those of the offense of which he would
be guilty had the situation been as he supposed.
o Mistake or Ignorance of Law
 General Rule
 Mistake (or ignorance) of law is not an excuse
 Two common law exceptions
 Reasonable reliance (entrapment by estoppel)
 Where the mistake negates the specific intent element of a SI crime
 Two Exceptions under MPC Approach
 Reasonable reliance (entrapment by estoppel)
 Mistake negates a material element of the offense or there is a statutory defense of
mistake of law
 People v. Marrero (NY 1987, p. 199)
 Exception in the law for any peace officer, including a guard of “any state
correctional facility or any penal correctional institution”
 NY Mistake statute
o Mistaken belief must be founded upon an official statement of the law
contained in any statute or other enactment
 ∆ claims the statute itself was fairly clear, in saying “any penal correctional
institute” without specifying a state facility
 Mistake of law provision only applies where the statute in fact authorizes the
conduct, but is later invalidated
 ∆ relied on own interpretation of statute; d/n matter if interpretation reasonable
 Policy reasons
o If court lets ∆ off, then everyone will look for loopholes in the statutes
 Dissent
o The statute was express here; it said “any”
o Punishment not justified by utilitarian or retributivist reasons
 Entrapment by Estoppel (p. 206, n. 2)
 Reasonable reliance on an official statement of the law, later determined to be
wrong
 Official statement includes:
o (1) Statute,
o (2) Judicial decision, or
o (3) Official interpretation secured from a public official in charge of its
interpretation or enforcement
 Does not include one’s own interpretation of the law, even if reasonable
(Marrero), or interpretation by private attorney
 Lambert v. California (U.S. 1957, p. 207)
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City required any convict who remained in city for more than five days to register
Three problems with the law
o Statute punished an omission rather than an act
o Duty to act was imposed based on status (presence in city)
o Offense was malum prohibitum
 Reversed conviction as violation of due process
Cheek v. United States (U.S. 1991, p. 209)
 ∆ convicted under 26 U.S.C §§ 7201 & 7203 for tax evasion
 § 7201 requires “voluntary and intentional violation of a known legal duty”
o SI crime due to the “known” element
 ∆ argues that he legitimately believed that federal income taxation was
unconstitutional and therefore he was not violating a valid law
 Trial court instructed jury that belief had to be reasonable
o But this offense is SI, so no reasonableness required
 Meets exception 1 to the rule that mistake of law is no defense
o Mistake negates the specific intent of the case
 Violating “known legal duty” different than knowingly violating a legal duty
CAUSATION
o General Principles
 Elements of Criminal Offense
 Mens Rea
 Actus Reus
o Voluntary Act
o Social harm
o Causation
 Links the voluntary act/omission and the social harm
 Is implied element of all crimes and must be proved by ∏ beyond a reasonable doubt
 Criminal causation requires a closer connection than tort
 Two Components
 Actual Cause (Factual Cause)
 Proximate Cause (Legal Cause)
o Actual Cause
 But-for test
 But for ∆’s voluntary act/omission, social harm w/n have occurred when it did
 “When it did” allows conviction where ∆’s conduct accelerated the social harm
o Acceleration theory
 Like in murder; every one is going to die eventually
 Oxendine v. State (De. S. Ct. 1987, p. 215)
 ∆ convicted of murder for six y/o son’s death after beating
 ∆’s girlfriend beat V before ∆ did, so did ∆ actually cause/accelerate death?
 Ct. Apps. affirmed conviction under acceleration theory
o Though the GF accelerated it by decades and ∆ perhaps by a day or two
 S. Ct finds evidence insufficient to establish that ∆’s conduct accelerated death
o But sufficient to support conviction for assault
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Substantial factor test
 Two ∆s simultaneously bring about harm that, by itself, would have caused death
 Like where two shooters but only one bullet causes/accelerates death
 MPC
 Same as CL
o Proximate Cause
 Intro
 Fact-finder determines whether social harm too remote from voluntary act
 Intervening Cause
o When is the intervening conduct of a third party, the victim, or natural
events sufficiently out of the ordinary that it is no longer fair to conclude
that the social harm was caused by the defendant’s conduct?
 People v. Rideout (Mi. Ct. Appss 2006, p. 220)
 ∆ was driving home drunk and hit another car, caused that car’s light to go out
 V went back to his car to put flashers on, was struck and killed by another car
 Can ∆ be convicted of DUI-homicide?
 Court finds no proximate cause (though later reversed by Mi. S. Ct.)
 Factors (from Rideout)
 Foreseeability of intervening cause
o Responsive Intervening Cause
 Occurs as a reaction to ∆’s wrongful conduct
 Does not relieve ∆ of liability unless response was unforeseeable
and highly abnormal
 Examples
 Medical response, negligent medical treatment
 Though grossly negligent medical treatment may be so
abnormal and unforeseeable to defeat proximate cause
o Coincidental Intervening Cause
 Does not occur in response to ∆’s wrongful conduct but places
victim in “wrong place at wrong time”
 Relieves ∆ of liability unless the intervention was foreseeable
 Example
 Victim goes to hospital for treatment, then a knife-wielding
maniac runs in and stabs victim and he dies
o Rideout court: when ∆’s active force has come to rest in a position of
safety, court will follow it no longer
 De minimis Contribution to Social Harm
o Law will not treat a very minor but-for cause of harm legally responsible
for the result when there is a far more substantial cause
 Omissions
o Rarely negates causation; like V’s failure to use seatbelt
 Intended Consequences Doctrine
o If the consequence was what the ∆ intended, though happened in a
strangely unforeseeable way, ∆ does not escape liability
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o Not only must the result be that which ∆ intended, but the mechanism
must be somewhat related to intended mechanism
o Regina v. Michael (Eng. 1840, p. 227, n.7)
 ∆ tried to poison ∆ through unwitting agent, but other unwitting
agent administered poison medicine later; causation not negated
 Contributory Negligence of Victim
 Free, Deliberate, and Informed Human Intervention
o Like where ∆ injures V, but V refuses life-saving medical intervention due
to religious views
o Velazquez v. State (Fl. Ct. Apps. 1990, p. 229)
 ∆ who participated in drag race leading to V’s death
 After race finished, V turned around, drove into canal and died
 ∆ is but-for cause of death, but no proximate cause
MPC § 2.03
 No p. cause if actual result not w/i purpose or contemplation of actor unless:
o Intended harm the same but different person/property affected; or
o Same kind of injury or harm as that designed or contemplated and is not
too remote or accidental
HOMICIDE
o Overview
 Murder is unlawful killing of a human being w/ malice aforethought
 Manslaughter is the unlawful killing of a human being w/o malice aforethought
 Malice aforethought requires one of four mental states
 Intent to kill, including awareness that death would result from one’s actions
 Intent to cause grievous bodily harm, which includes awareness that such harm
would result from one’s actions
 Depraved heart murder, which refers to extreme recklessness re: risk of death
 Intent to commit felony, which assigns strict liability for homicide during
commission of felony
 Degrees
 First
o Willful, deliberate, premeditated
o Felony murder, if statute says so
 Second
o Includes all other types of murder (malice aforethought)
o This will include intent to cause grievous bodily injury where death results
o Also depraved heart and felony murder
 Voluntary Manslaughter
o Intentional killing done in sudden heat of passion, as a result of adequate
provocation, before adequate time to cool off
 Involuntary Manslaughter
o Negligent homicide
 MPC Approach
 Murder
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 Manslaughter
 Negligent homicide
o Intentional Killings
 Degrees of Murder: The Deliberation-Premeditation Formula
 State v. Guthrie (W.Va. 1995, p. 253)
o ∆ convicted of first degree murder after stabbing coworker who was
teasing him and flipping him with a dish towel
o ∆ must have period for prior consideration of sufficient duration for the
accused to be fully conscious of what he intended for first degree murder,
but the period cannot be arbitrarily fixed; depends on circumstances
 Premeditation and Deliberation
o Some jurisdictions have abolished degree distinction, by saying that
premeditation/deliberation can be done in an instant
o Premeditation
 Focuses on quantity of time; to think about beforehand
o Deliberation
 Focuses on quality
 To measure and evaluate the major facets of a choice or problem
o Require thought process undisturbed by hot blood
o One can probably deliberate without premeditating, but reverse is not true
 Midgett v. State (S. Ct. Ark. 1987, p. 258)
o Court finds evidence insufficient to support conviction for first degree
murder, after father beats his young son, who later dies
o Evidence shows intent was not to cause death, but rather to abuse him, and
if there was intent to kill the child, it was in a drunken, heated rage
o Changes conviction to second degree murder
 State v. Forrest S. Ct. NC 1987, p. 261)
o Son kills his father, who is on his death bed, by shooting him
o Essentially, a mercy killing; assisted suicide; death with dignity
o Court upholds first degree murder conviction; evidence of premeditation
and deliberation was strong, and there was clear intent to cause death
 Reconciling Midgett and Forrest
o Formalistically, the cases were decided correctly
o Real issue: is premeditated killing really worse?
o First: more chance of escape, more mass killings, more moral culpability
in most cases
o Second: Someone who flies into a rage at moment’s notice seems more
immediately dangerous to more people
 Model Penal Code Approach (distinguish from CL “Pennsylvania” approach)
o MPC § 210.1
 Person is guilty of homicide is she purposely, knowingly,
recklessly, or negligently causes death of a another human being
o MPC § 210.2
 Murder = knowingly/purposefully; or
 Recklessly with extreme indifference to human life
 Such recklessness presumed during certain felonies
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o MPC § 210.3
 Manslaughter = Recklessly
 Or extreme emotional disturbance
o MPC § 210.4
 Negligent homicide (requires gross negligence)
Manslaughter
 Girouard v. State (ML 1991, p. 264)
o ∆ convicted of second degree murder for killing wife
o Issue: whether provocation factors that mitigate homicide from murder to
manslaughter may include words alone
 Up to this point, words were not sufficient
o Wife verbally berated husband after maybe cheating on him, pulled his
hair, but no physical contact immediately before killing
o Elements mitigating murder to manslaughter
 Adequate provocation
 Calculated to inflame passion of reasonable man
 Heat of passion
 Sudden
 i.e., no reasonable opportunity to cool off
 Causal connection between provocation, passion, and homicide
o Court finds provocation not enough to mitigate to manslaughter
o A thought
 If you grade homicide on blameworthiness, the distinctions likely
will not align with a system based on dangerousness
 ∆ had emotional issues which make him less blameworthy
 But this makes him perhaps more dangerous, and thus there may
be more reasons to keep him locked up for a longer period
 Provocation Doctrine: Partial Excuse or Partial Justification?
o Provocation as justification
 Could be like self defense if provocation is strong; if the victim is
asking for it, seems like the ∆ may be somewhat justified
o Provocation as excuse
 Provocation makes ∆ go a bit crazy (though not criminally insane)
 Like seeing one’s spouse having sex with another, or being berated
o An example (p. 270 n.6)
 B hits and kills A’s daughter as they are walking; in fit of rage, A
beats B, before R steps in; A, still in rage, intentionally kills R
 There is no sense of justification in A killing R; there may be some
excuse in it though
 Critiques of Provocation
o Less incentive for people to exercise self control
 Though it is not a full defense, only partial defense which mitigates
o Sexist (usually favors men and women are usually the victims)
 The Reasonable Man
o Atty General for Jersey v. Holley (Eng. 2005, p. 276)
 In determining whether provocation adequate/response reasonable:
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Level of Self-Control (objective)
o Reasonable man is person having the power of selfcontrol to be expected of an ordinary person of the
sex and age of the accused . . .
 Gravity of Provocation (subjective)
o . . . but in other respects sharing such of the
accused’s characteristics as they think would affect
the gravity of the provocation
 Court decided ∆’s alcoholism not a factor to be considered under
objective prong
 NOT a “reasonable alcoholic” test
o Green v. Regina (p. 282, n. 3)
 Jury should consider ∆’s past abuse and consequent sensitivity to
homosexual advances in assessing gravity of provocation
 Gravity of provocation should be seen through ∆’s eyes, but ∆’s
self-control is seen through a normal man of his age
o Culture (see p. 283 n.4)
 Canadian court decided jury should consider ∆’s tribal culture in
assessing “provocation” which led to him killing daughter
o Gender (see p. 284 n.5)
 Since women are generally less murderous, does the use of sex in
the reasonable person standard make women less successful under
the provocation doctrine?
MPC Approach to Manslaughter
o MPC § 210.3
 A person is guilty of manslaughter if she:
 Recklessly (w/o extreme indifference) kills another; or
 Kills another under circumstances that ordinarily constitute
murder, but where homicide is committed as a result of
o Extreme mental or emotional disturbance for which
there is a reasonable explanation/excuse
o People v. Casassa (NY 1980, p. 285)
 ∆ killed V after bizarre behavior in response to break up
 Two components of extreme emotional disturbance defense
 ∆ acted under extreme emotional disturbance, and
 Reasonable explanation/excuse for disturbance, determined
from actor’s view under circumstances as he believes them
o If ∆ was mistaken as to facts, must accept those
facts as true for determining this component
o But response must be reasonable
 Thus objective
 Court finds ∆ acting under the influence of EED, but this was not a
reasonable response
MPC vs. Common Law
o Adequate Provocation not required under MPC
o If V does provoke ∆, there is no fixed category of adequate provocation
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o No rigid cooling off rule under MPC
 EED may be based on a series of events rather than single event
o Jury may hear EED excuse for manslaughter under any circumstances
 Though judge may limit instruction under MPC approach if there
is insufficient evidence to submit it to jury
o Unintentional Killings
 Unjustified Risk-Taking: Depraved Heart Murder
 People v. Moore (not in my edition)
o ∆ struck another car, saw that people were dead, then left
o Elements
 An act
 Natural consequences of which are dangerous to life
 Deliberately performed
 Knows conduct endangers life another
 Acts with conscious disregard for life
 MPC § 210.2(1)(b)
o Homicide is murder when “committed recklessly under circumstances
manifesting extreme indifference to the value of human life.”
 State v. Williams (Wa. 1971, p. 308)
o Parents charged with manslaughter after baby died of a gangrenous tooth
o State law allowed manslaughter conviction for ordinary negligence
 Usually CL requires gross negligence
o Five day period between them knowing something was wrong and the
time that the baby was beyond saving
o Court found that a reasonable person would have realized within this
period that they needed to take baby for treatment
o Notwithstanding parents’ fear of having baby taken away
 Parents were Native American, Indian adoption program, etc.
o Under MPC, because negligence is defined as gross negligence, this would
likely fall short of even negligent homicide, and they would not be guilty
 Christian Scientist Problem (p. 314, n. 8)
o Do we evaluate negligence from the perspective of a reasonable Christian
Scientist?
o No, we d/n consider idiosyncratic values and characteristics like this
o MPC commentaries say this would strip rule of objectivty
 Unlawful Conduct: Felony Murder
 Introduction
o ∆ is guilty of murder where death results from conduct during the
commission or attempted commission of any felony, even where ∆ lacks
the culpability required for murder
 Degree of murder depends on MR required for underlying felony
o What fits the elements?
 Robbery victim has heart attack during robbery
 Tries to steal purse and gun contained inside goes off and kills
someone
 ∆1 guilty if ∆2 shoots and kills victim while acting as accomplices
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o ∏ must still prove causation
People v. Fuller (Ca. App. 1978, p. 316)
o Cops start car chase with suspects that stole some wheels; suspect car
causes accident and someone dies
o Statute: “committed in the perpetration of . . arson, rape, robbery,
burglary, mayhem”
 Fleeing to evade capture after commission is included
Policy
o Deterrence Rationale
 People less likely to carry gun or put lives at risk during felony
 Criticism
 Do criminals calculate these risks in advance?
 Are they even sufficiently aware of the felony murder rule?
 If there were no felony murder rule, someone who commits an
intentional murder during felony may claim it was an accident
o Reaffirming the Sanctity of Human Life
 How is this any more pressing than in any other accidental killing?
 What about looking at the ∆’s moral blameworthiness?
o Transferred Intent
 Intent to commit felony transfers MR for murder
 Transferred intent is usually applied to transfer from one intended
victim to another victim, but the social harm is usually the same
 Here, the social harm intended could be vary disconnected from
the social harm that occurred
o Easing the ∏’s Burden of Proof
 That’s not my fucking job
MPC Approach
o Critiques felony murder rule, but retains it in a lessened form
o MPC § 210.2(1)(b)
 Recklessness and indifference are presumed if the actor is engaged
in, an accomplice to, attempting, or fleeing after certain felonies
 Robbery, rape or deviate sexual intercourse by force/threat
of force, arson, burglary, kidnapping, felonious escape.
 So establishes requisite MR for reckless murder
 But notice this is a presumption, so it can be rebutted
People v. Howard (Ca. 2005, p. 327)
o ∆ convicted of second degree felony murder
o Underlying felony is evading a police officer in willful or wanton
disregard for the safety of persons or property
o Issue is whether this is an inherently dangerous felony such that the CA
felony murder rule applies
o Court looks at whether the felony, by its nature, is inherently dangerous by
its nature and cannot be committed without risk of endangering life
 Will not look at the particular facts of the case in determining
whether the felony is inherently dangerous
 Known as the Abstract Approach
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Summary of Analysis
o Is there a first-degree murder statute that criminalizes felony murder for
this particular felony?
o If the felony does not appear in the first-degree murder statute, we ask
whether the felony is inherently dangerous?
 If yes, any murder ∆ causes during commission is second degree
 If no, then no felony murder
INCHOATE OFFENSES
o Overview
 Six Steps
 Idea of crime
 Evaluation of idea
 Full formation of intent
 Preparation
 Begin to commit offense
 Finish offense
 We do not punish for first three stages
 We do not punish for ideas alone
 The line between stage 3 and 4 can be hazy though, and this is the main contention with
inchoate offenses
o Attempt
 General Principles
 Person, with intent to commit a crime, performs a substantial step, beyond mere
preparation, towards commission of offense
 Need a target offense, b/c attempt can only exist in connection with a crime
 Merger: ∆ cannot be convicted of both completed offense and its attempt
 Attempt is SI, even if target offense is not
 Grading Criminal Attempts
 At CL, attempts are punished less severely
 Under MPC, there is no distinction, except with first degree felonies and capital
crimes, where attempt is punished less severely
 Mens Rea
 People v. Gentry (Ill. App. 1987, p. 738)
o ∆ doused GF with gasoline, V says she ignited when walking near stove
o ∆ convicted of attempted murder
o Court holds that attempted murder requires specific intent to kill, thus
alternative mental states for target crime must be omitted from instruction
 Common Law
o Attempt requires specific intent to commit target offense
 Some jurisdictions require a conscious objective to achieve the
prohibited result or engage in the prohibited conduct
 Others require either a conscious objective to achieve the
prohibited result or knowledge that the result will follow
 MPC § 5.01
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o 5.01(a) & (b) – complete-but-imperfect attempt
 (a) Involves target crimes that are conduct crimes (like DUI)
 ∆ must purposefully engage in conduct that would
constitute target offense
 (b) Applies to result crimes (like murder)
 ∆ must purposefully cause the result or act with knowledge
that the result will occur
o 5.01(c) – incomplete attempt
 Conduct crimes: purpose required
 Result crimes: purpose or knowledge
 Attendant Circumstance Elements
o MPC
 For AC elements, it is sufficient that ∆ possessed the same degree
of culpability required to commit the target offense
 So with attempted statutory rape, which is strict liability, the
attempt would require no mental state with regards to victim’s age
o Common Law
 Ordinary SI requirement of attempt d/n apply to AC elements
 Some jurisdictions apply MPC approach, and others require
recklessness in regards to AC elements
Actus Reus
 United States v. Mandujano (5th Cir. 1974, p. 745)
o Mere preparation is not enough for attempt, but there is no bright line
between mere preparation and a substantial step
o Physical Proximity Doctrine: an act directly tending toward completion
o Indispensible Element Test: has ∆ not yet completed an indispensible
element of the offense?
 Dangerous Proximity Test
o ∆ guilty of attempt when conduct is in dangerous proximity to success or
when her act is so near to the result that the danger of success is very great
o Three factors
 Nearness of danger
 Greatness of Harm
 Degree of apprehension felt
 Commonwealth v. Peaslee (Mass. 1901, p. 750)
o ∆ convicted of attempted arson, after he set up flammables in building to
point where all he needed to do was ignite it
o A mere collection and preparation of materials in a room for the purpose
of setting fire, w/o any present intent to set fire, is too remote
 If he was relying on his own hands to set the fire, then he must
have had present intent to accomplish the crime w/o much delay
 Probable Desistence Test (p. 751 n.3)
o Actor reached the point where it was unlikely that he would have
voluntarily desisted from his efforts to commit the crime
o If there was still much left to be done to complete crime, then it is more
likely that ∆ would have desisted
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People v. Rizzo (NY 1927, p. 753)
o ∆ and accomplices were going around looking for a guy they knew would
have money; ∆ was to ID victim, then others would rob him
o They were driving around looking for the guy; car stopped, ∆ jumped out
and ran into building, but intended V not there; was arrested
o No attempt under dangerous proximity test, serendipitously
Res ipsa loquitur Test
o Person’s conduct, standing alone, unequivocally manifests criminal intent
 Like watching a movie without the audio
o Generally seen as overly forgiving and is disfavored among most courts
o People v. Miller (Ca. 1935, p. 755)
 ∆ threatens to kill V in front of others; later travels towards farm
where V and sheriff working; stops 100 yards away to load gun
 Court finds insufficient evidence for attempted murder charge
 Under RIL test we disregard the previous verbal threats
MPC: Substantial Step Test
o MPC § 5.01(1)(c)
 ∆ must have done (or omitted to do) something that constitutes a
substantial step in a course of conduct planned to culminate in the
commission of the crime
 Emphasizes what actor has already done, rather than what remains
 Intended to broaden scope of attempt liability
o MPC § 5.01(2)
 Substantial step must be strongly corroborative of criminal purpose
 To be strongly corroborative, conduct, in light of circumstances,
must add significantly to other proof of criminal intent, such as
confession or other incriminating evidence
 Provides a list of factual circumstances in which ∆’s conduct, if
strongly corroborative of criminal purpose, is not insufficient as a
matter of law
 Lying in wait, searching for or following intended victim
 Possession of materials near intended place of target
 Enticing intended victims to go somewhere
 Unlawful entry of a structure where it is contemplated that
crime will be committed
o State v. Reeves (Tenn. 1996, p. 768)
 Two 12 y/o ∆s plan to put rat poison in teacher’s drink to kill her
 Tell some other kid about it, who rats them out
 Teacher walks in as the ∆s are leaning over her desk, then they run
away giggling, leaving purse on desk with rat poison inside
 Under CL, insufficient for overt act, so no attempt
 Under MPC approach, court affirms ∆’s attempt murder judgment
 Strongly corroborative factors here
 The conversation with another student
 Students had the rat poison, and appeared to be just about
to put it in coffee, had teacher not interrupted them
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Note that these tests apply only to incomplete attempts
o Completed attempts will have all the elements but for actual success
Special Defense: Impossibility
 Factual Impossibility
o Not a defense
o Exists when a person’s objective is prohibited by criminal law, but
circumstances unknown to ∆ prevents fulfillment
o Examples
 ∆ points unloaded gun at V thinking it is loaded and pulls trigger
 Pickpocket puts hand in empty pocket
 ∆ shoots into empty bed believing it contains victim
 Legal Impossibility
o Pure
 Is a valid defense (in all jurisdictions and MPC)
 ∆’s actions, if circumstances are as he believes them, not criminal
 Belief that non-crime is a crime does not make it a crime
 Examples
 Where ∆ believes girl is under age of consent and has sex
with her, but she is of age
 ∆ d/n know liquor has been legalized and is “bootlegging”
o Hybrid
 Was valid defense at CL, but overwhelming trend is to abolish it
 But some jurisdictions still recognize it
 When courts refer to “legal impossibility,” they usually mean this
 ∆’s goal is illegal, but commission of offense is impossible due to
a factual mistake regarding the legal status of some AC
 Don’t confuse with FI
 Examples
 ∆ receives non-stolen property believing it to be stolen,
where receipt of “stolen property” is element of offense
 ∆ offers bribe to a juror who is not a juror, where the statute
prohibits bribery of “jurors”
 ∆ shoots human corpse believing it is alive
 The distinction usually makes little legal sense
 With creative argument, you can always characterize FI as HLI
 Analysis
o Step 1: Would ∆’s actions, if circumstances were as she believed them, be
a crime?
 If no, this is PLI, and she is not guilty of attempt in any jurisdiction
o Step 2: If ∆’s goal was illegal, but commission fails due to a factual
mistake, does factual mistake relate to an express element of the crime?
 If yes, HLI, which is a defense in a minority of jurisdictions
o If no, FI, no defense
 People v. Thousand (Mich. 2001, p. 772)
o ∆ charged with attempted distribution of obscene materials to a minor
o There was no minor; ∆ was talking online to cop that ∆ thought was minor
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o ∆ claims legal impossibility, Ct. Apps. dismissed
o S. Ct. reverses; this is HLI, which the state d/n recognize as a defense
 Criticism of the Modern Trend
o Smuggling what ∆ thought was expensive lace on which she must pay a
duty, even though the lace was not subject to the duty, would by HLI or
FI, so no defense under modern trend
o The conduct is objectively innocent, and we are just punishing thoughts
o Distinguish this from actually loading gun, pulling trigger, and shooting an
empty bed
 MPC Approach
o FI and HLI are not defenses under MPC
o PLI is a defense b/c of Principle of Legality
 Special Defense: Abandonment
 Elements
o Defense only applies if ∆:
 1) Voluntarily and
 2) Completely abandons the plan
 Analysis
o Step 1: Abandonment voluntary if it results from genuine change of heart
 Not voluntary if caused by unexpected resistance, absence of a
necessary instrument, or other circumstances that increase
likelihood of arrest or unsuccessful completion
o Step 2: Abandonment not complete if ∆ merely postpones plans until a
better opportunity comes along
 Commonwealth v. McCloskey (Penn. 1975, p. 786)
o ∆ jumped over prison fence and cut another, then returned
o Court does not recognize abandonment defense here, but find conduct
insufficient to meet actus reus of attempted escape
o Concurrence would find abandonment as a defense
 Would find that he committed attempt, but then abandoned it
before completing target
 Policy Reasons
o Utilitarian
 Deterrence of completion of crime
o Retributivist
 ∆ who abandons the criminal conduct voluntarily is not as culpable
as someone who is interrupted or fails in their offense
 MPC § 5.01(4)
o Called “renunciation of criminal purpose”
o Elements (same as CL)
 1) Abandonment
 2) Complete and voluntary renunciation of criminal purpose
o Conspiracy
 Elements
 Mutual agreement, express or implied, between 2+ people to commit unlawful act
 Target offense
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Common Law Rule
o The crime is complete upon formation of the agreement
 No overt act required
o Many jurisdictions now require some overt act, but usually a low burden
 Rule of Merger
o Common Law
 Merger d/n apply to conspiracy
 Is separate & distinct crime from target; ∆ can be punished for both
o MPC § 1.07(1)
 Sees conspiracy as one end a continuum that leads towards target
crime
 Thus, merger applies, and you cannot be convicted of both
conspiracy and target crime
 Unless agreement includes commission of additional offenses that
have not yet been completed
 Distinguishing Conspiracy and Accomplice Liability
o Conspiracy requires agreement, but actual assistance in crime not required
 Overt act need not rise to level of actual assistance
o Accomplice liability requires proof of assistance; agreement not required
o In most cases, a conspirator will be an accomplice and vice versa
 Pinkerton v. United States (US 1946, p. 801)
o ∆ was in jail while substantive offenses were completed by his brother
o As a coconspirator, he can be guilty of any substantive offenses that result
 He need not be an accomplice
o Conspirator is responsible for any act committed by coconspirator if:
 Act was in furtherance of the conspiracy; and
 Was reasonably foreseeable consequence of the agreement
o Note that MPC rejects Pinkerton rule
Mens Rea & Conspiracy
 People v. Swain (Ca 1996, p. 806)
o Conspiracy not established until
 Intent to agree
 Intent to commit the target offense
o Here, to find ∆ guilty, jury must find that he specifically intended to
commit the target offense, murder
 Implied malice is not enough
o Agreement to engage in reckless behavior ≠ agreement to kill
o Intent required for conspiracy requires deliberation and premeditation
o It is impossible to make a conspiracy to commit reckless murder
 People v. Lauria (Ca. 1967, p. 809)
o For a supplier to be liable for conspiracy, need two things
 Knowledge
 He admitted to knowing his services were being used in
unlawful way
 Intent
 Can be shown by direct or circumstantial evidence
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o Intent can be inferred from knowledge where there is a special interest in
the enterprise
 ∆ has a stake in the venture
 Volume is disproportionate to any lawful use
 No legitimate use of goods/services exists
o In felony cases, special interest may not be required, and intent can be
inferred by knowledge of criminal use alone
 Because prostitution is a misdemeanor, no conspiracy
 Note: Lauria is the majority rule, but minority of jurisdictions only require
knowledge
 MPC: Need knowledge and purpose to further criminal objectives
Actus Reus & Conspiracy
 Common Law
o Only requires agreement; no overt act necessary
o Most states now require an overt act (low threshold)
 Any overt act performed in furtherance of the conspiracy is enough
 Could be writing a letter, attending a meeting, etc.
 MPC
o Requires an overt act, except for felonies of first and second degree
o Only one member of the enterprise need commit the overt act
 Commonwealth v. Azim (Penn. 1983, p. 818)
o Look at ∆’s conduct in light of the circumstances to infer an agreement
 He stopped car by victim
 Waited with doors open while act was being committed
 Then he drove away with perpetrators
 Since two passengers jumped out, seems to show that there was a
spoken plan
o If just one person jumped out, it was likely that there was no conspiracy
 And if ∆ was a passenger, less likely he was party to agreement
 Commonwealth v. Cook (Mass. 1980, p. 819)
o Court finds no evidence of agreement to rape
 Aiding/abetting does not equal conspiracy
 Plan must preexist the target offense
 Route to market was fairly direct, and ∆ did not choose the route
 Also, they showed her their ID cards
o ∆ could be an accomplice though
o A criticism
 Agreement could have come right before the rape happened, when
brother asked ∆ to hold his belt; agreement need not be express
 Bilateral vs. Unilateral conspiracy
o People v. Foster (Ill. 1983, p. 824)
 ∆ asks friend to help him w/ robbery; friend feigns agreement then
tells police
 Court finds state still needs to show bilateral agreement
 Though it tracks MPC, which is unilateral, it does not have
the commentaries stating that it is abolishing bilateral
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 Also, solicitation covers most of unilateral conspiracy
o MPC § 5.03
 Adopts unilateral conspiracy
 This has become the majority rule
o Note that acquittal does not defeat bilateral theory
 Scope of Agreement
o Why important?
 Need to know whether member of one conspiracy linked to
substantive crimes of separate but related conspiracy
 Rules of evidence
 Coconspirators can be tried jointly
o Kilgore v. State (Ga. 1983, p. 830)
 Guy hires hit men to kill V; they fail; hires other hit men who later
succeed; no contact/knowledge between two groups of hit men
 Court finds the hearsay should not have been admitted, because ∆
and W were not coconspirators
 Two principles
 ∆ need not know ID of all coconspirators and details
 But he must know the scope and objective of enterprise;
 And there must be a community of interest or reason to
know of each others’ existence
 Wheel Conspiracies
 There is a hub (ringleader) who coordinates the spokes
 Hub sees the spokes as part of a broader conspiracy, while
spokes see conspiracy more narrowly
 Success of each spoke is not necessarily reliant on success
of other spokes
 Chain Conspiracies
 Like drug manufacturer to distributor to retailer
 Success of each link depends on success of other links
 It is easier to show that each conspirator knew of scope
 And easier to show community of interests
 The link between the spokes here was missing (no rim)
o MPC Approach
 If ∆ knows coconspirator has conspired w/ another person to
commit same crime, he is guilty of conspiring w/ that other person
o Braverman v. United States (US 1942, p. 836)
 Rule: one agreement to commit several crimes = one conspiracy
o MPC 5.03(3) & commentaries
 A person with multiple criminal objectives is guilty of only one
conspiracy if:
 Crimes are part of a single agreement (Braverman); or
 Even if there are multiple agreements, the crimes are part
of a single and continuous association for criminal purposes
Abandonment of Conspiracy
 Common Law
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o Once target crime of conspiracy complete, abandonment not a defense
o If person abandons conspiracy, she is not liable for any subsequent crimes
committed by her former coconspirators after her withdrawal
 But is still liable for the agreement
o Majority Rule: Abandonment must be communicated
o Minority: ∆ must successfully dissuade others from continuing conspiracy
 Like by calling the cops
MPC
o Abandonment is affirmative defense if coconspirator
 1) Completely and voluntarily renounces criminal purpose; and
 2) Thwarts success of conspiracy
o Successful abandonment nullifies liability for original agreement
VICARIOUS (ACCOMPLICE) LIABILITY
o General Principles
 A secondary party (SP) is accomplice of primary party (PP) if she intentionally assists PP
to engage in criminal conduct
 “Assist” includes aiding, abetting, encouraging, soliciting, or advising
 SP may be convicted of any offense committed by PP with the SP’s intentional assistance
 “Derivative liability”
o Elements of Accomplice Liability
 Common Law
 State v. Hoselton (WV 1988, p. 851)
o Barge case, insufficient evidence of accomplice liability
o Elements
 AR
 Solicits another to commit offense;
 Assists in its commission; or
 Fails to perform a legal duty to prevent its commission
 MR
 w/ intent to assist the PP to engage in criminal conduct; and
 Intent that such assistance will result in commission of
crime
 MPC § 2.06(3)
 A person is accomplice if:
o w/ purpose of promoting or facilitating the commission of the offense:
 Solicits another to commit it
 Aids/agrees or attempts to aid in planning or committing it; or
 Fails to stop or try to stop the offense where she had legal duty to
do so
 MPC allows liability for attempting to aid, while CL does not
 Analysis
 Step 1
o Did the primary party (PP) commit a crime?
 If no, no accomplice liability
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Step 2
o Did the SP commit the actus reus of accomplice liability?
 See CL and MPC elements above
 If no, no accomplice liability
Step 3: Did SP have the required men rea for accomplice liability?
o A: SP must have the intent to promote or facilitate the PP to engage in
conduct that forms the basis of offense
 CL: required intent can be inferred from knowledge under certain
circumstances (Lauria)
o B: SP must have whatever mental state is required for the commission of
the substantive crime with regards to the result of the PP’s conduct
 CL: required intent can be inferred form knowledge under certain
circumstances
o Mens Rea
 People v. Lauria (Ca. 1967, p. 809)
 MPC 2.06(3)
o Would have to show that ∆ had purpose, which may be difficult
 Majority rule: supplier not accomplice until he shares the criminal intent of PP
o Though intent may be inferred
 CL rule for suppliers
o ∆ knows of crime; and
o Either
 Has purpose that crime occur
 Offense involved is very serious; or
 Has a stake in the crime
 Sales above market price
 High proportion of profits
 No legit purpose for types or volume of goods
 Exception to Mens Rea: Offenses that d/n require intent
 Riley v. State (Alaska 2002, p. 858)
o SP has the required mens rea for accomplice liability if she acts with:
 Intent to promote or facilitate the PP to engage in conduct that
forms basis for offense; and
 The MR required for the substantive crime with regards to results
 Example (p. 862 n.2)
o Taxi passenger bribed driver to go as past as he could
 Would be guilty as accomplice if driver recklessly kills someone as
a result of speeding
 Probably would not be guilty as accomplice if driver recklessly
kills someone as a result of running a red light
 Exception to Men Rea: Natural & Probable Consequences Doctrine
 State v. Linscott (Me. 1987, p. 863)
o ∆ and F planned to rob drug dealer; F armed with shotgun, ∆ had knife
o Maine allows accomplice liability to extend to “any crime the commission
of which was a reasonably foreseeable consequence of his conduct”
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o Because the murder was reasonably foreseeable, he could be convicted as
accomplice to murder
Analysis
o Did PP commit target offense?
o If yes, was SP an accomplice in the commission of that offense?
o If yes, did PP commit any other crimes beyond target crime?
o If yes, were these crimes, though not contemplated by SP, reasonably
foreseeable consequences of the target offense?
MPC rejects the doctrine

o Actus Reus
 State v. V.T. (Utah 2000, p. 868)
 ∆ and friends stayed at relative’s house; guns and camcorder stolen
 Only evidence is video where friends are talking about pawning the camcorder; ∆
is sitting nearby
 State requires something more than mere passive presence in order to convict for
accomplice liability
 Wilcox v. Jeffery (K.B. 1951, p. 872)
 ∆ is jazz journalist; knows that famous saxophonist is coming to visit; meets him
at airport, attends his concert, lauds the show in his magazine
 Court affirms ∆ is guilty of aiding and abetting in entering England illegally
 Example (p. 873, n. 3)
 Rape in public at bar; some cheer, some passive
o Bartender liable in jurisdictions where he has a duty as a proprietor
o Cheering customers are likely encouraging, guilty as accomplices
 Passive customers not guilty as accomplices, unless there is good Samaritan law
 State v. Helmenstein (ND 1968, p. 874)
 Bunch of punk kids broke into a market and stole some shit and bananas
 Only evidence against ∆ is testimony from other kids that were present
 Since only evidence against ∆ is testimony from accomplices, conviction reversed
 Note on Causation
 ∆ need not be but-for cause of crime to be accomplice
 So even if PP would have committed crime w/o ∆’s help, ∆ can be accomplice
o Distinguishing Direct & Accomplice Liability
 For accomplice to be liable, there must have been a crime committed by another person
 Called derivative liability
 Conviction of a primary party is not required though
 People v. Genoa (Mi. 1991, p. 878)
 Court finds ∆ could not be convicted as accomplice without an actual crime
 b/c cop never bought drugs, there was no crime, and thus no accomplice liability
 Bailey v. Commonwealth (Vi. 1985, p. 880)
 CB case; ∆ not accomplice, but is PP
 Innocent Agency Doctrine: One who effects a criminal act through an innocent
and unwitting agent is a principal in the first degree
 MPC § 2.06(2) recognizes innocent agency doctrine
o Relationship of Accomplice Liability to Principal Liability
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United States v. Lopez (N.D.Ca 1987, p. 884)
 ∆ helped gf escape prison by landing a helicopter inside prison; gf claims duress
 If an offense is justified, then no offense occurred, so no accomplice liability
 If this were an excuse, PP’s defense would not negate accomplice liability
People v. McCoy (S. Ct. Ca 2001, p. 887)
 Issue: whether SP can be convicted of a more serious offense than PP
 PP’s murder conviction overturned b/c no instruction on imperfect self defense
o The unreasonable but good faith belief that self defense necessary
o So it’s more of an excuse than a justification
 ∆’s conviction as SP need not be overturned, b/c actus reus has been proven
 Where different MR make a crime more or less severe, then the SP can be guilty
of a worse offense than PP
o Like Othello, where I encourages O to kill wife by saying she is cheating
 O’s murder would be in heat of passion
 But I’s murder as accomplice would be premeditated and
deliberate
GENERAL DEFENSES TO CRIMES
o Intro
 ∆ may rebut ∏’s case with affirmative defense
 Burden of proof on aff. Defenses varies
 Some require BRD, some preponderance
o Categories of Defenses
 Failure of Proof
 ∆ argues that ∏ failed to prove an element of the crime charged; that some fact
prevents proof BRD
 Not “real” defenses
 Like an alibi defense
 Justification
 Like self defense
 ∆’s conduct was not socially undesirable
 Excuse
 Like insanity
 Conduct is socially undesirable but ∆’s mental state makes them not morally
blameworthy
 Specialized/Offense Modifications
 Defenses that apply to just one or a few crimes
 Social Policy/non-exculpatory
 Like statutes of limitations
o Principles of Justification
 Self Defense
 Common Law elements
o Threat, actual or apparent, of the use of deadly force
o Threat must be unlawful or immediate
o ∆ must subjectively believe
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 Imminent peril of death or serious bodily harm; and
 Response was necessary to save herself
o ∆’s belief must be objectively reasonable under the circumstances
Exceptions
o Aggressor Doctrine
 Self defense unavailable to person who provokes physical conflict
 Exceptions
 ∆ withdraws from altercation and informs other party of
withdrawal by words or conduct
 V escalates the conflict from non-lethal to lethal
o Retreat to the Wall Doctrine
 Deadly force forbidden when the ∆ is subjectively aware of the
existence of an avenue for completely safe retreat
 Only applies where ∆ uses deadly force
 Tempered in some jurisdictions by
 Stand Your Ground Doctrine
o Allows use of deadly force to repel lethal attack
even if there is a completely safe retreat
 Castle Doctrine
o ∆ who through no fault of her own is attacked in
own home is under no duty to retreat
United States v. Peterson (DC Cir. 1973, p. 500)
o Windshield wiper case
o Court finds self defense does not justify the killing
 ∆ was aggressor, first one to threaten deadly force, and he failed to
retreat into his house when victim approached
o stand your ground/castle doctrines would not apply b/c ∆ was aggressor
MPC Approach
o MPC 3.04(1) – Force
 Person is justified in using force upon another person if she
believes such force is immediately necessary for the purpose of
protecting herself against the use of unlawful force by such other
person on the present occasion
o Two departures from common law
 Actor’s subjective belief need not be reasonable
 Where actor is negligent about need to use force, she can be
convicted of a negligence crime
 Where actor is reckless about the need to use force, she can
be convicted of a recklessness or negligence crime
 MPC uses “immediately necessary” instead “imminence”
 Allows force to be used sooner
o MPC 3.04(2)(b) – Deadly Force
 Use of deadly force is authorized only to protect against death,
serious bodily injury, rape, and kidnapping
 Deadly force by aggressors
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MPC prohibits use of deadly force by person who, with the
purpose of causing death or serious bodily injury, provoked
the use of force against himself in the same encounter,
unless he withdraws
 Duty to Retreat/Surrender
 Deadly force not justified if ∆ can avoid the necessity of
using such force with complete safety by:
o Retreating;
o Surrendering possession of a thing to a person
asserting a claim of right thereto;
o Complying with a demand that he abstain from any
action that he has no duty to take
 But not required from house or place of work
People v. Goetz (Ct. App. NY 1986, p. 510)
o NY Rule
 ∆ must reasonably believe that deadly force, or one of the four
listed felonies, is imminent; and
 Must reasonably believe that deadly force necessary to avert threat
o Determination of reasonableness includes:
 Any relevant knowledge ∆ had about assailants
 Physical attribute of all person involved, including ∆, clothing
(gang colors, ability to hide weapons)
 Any prior experiences ∆ has that could provide basis for believe
that assailants would rob, injure, use deadly force, etc., or that use
of deadly force was necessary under circumstances
State v. Wanrow (Wash. 1977, p. 525)
o Self defense justification is evaluated in light of all facts and
circumstances known to ∆, including those known substantially before
killing
o ∆’s sex can be used as a factor in determining reasonableness of force
 V was a large man and ∆ is a small woman
 Women have lack of access to training in self defense skills
o However, Court finds Native American culture irrelevant to analysis
Battered Spouse Syndrome
o Confrontational
 Battered spouse kills aggressor during a physical episode
o Non-confrontational
 Occurs when abusive spouse is sleeping or otherwise non-violent
at the moment
State v. Norman (NC Ct. Apps. 1988, p. 532)
o Lot’s of abuse; escalating on that day; ∆ shoots husband while asleep
o Need “immediate danger such as must be instantly met and c/n be guarded
against by calling for assistance of others or protection of the law”
o Distinguish from MPC
 Immediately necessary for purpose of protecting herself against the
use of unlawful force by such other person on the present occasion
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o Two requirements here
 “Believe it necessary to kill” (subjective)
 Belief is reasonable (objective)
o Using reasonableness factors from Goetz is helpful to ∆ here
o Finds instruction should have been given on self defense
 State v. Norman (NC S. Ct. 1989, p. 537)
o S. Ct. reverses and reinstates conviction, b/c harm c/n be imminent where
V is sleeping
o Majority follow this opinion in non-confrontational battered spouse cases
 Necessity
 Elements
o ∆ must reasonably believe that there is a clear and imminent danger
o ∆ must reasonably believe that there are no effective legal methods to
avert danger
o Harm caused < harm avoided
 Weighed against the harm reasonably foreseen at the time, rather
than the harm that actually occurs
 Given facts as they reasonably appear, ∆’s balancing of harms
must in fact be correct
o ∆ must not have been responsible for creating the emergency to be averted
o Balancing is not foreclosed by a legislative choice
 No necessity in using medical mj to avoid physical pain if state has
chosen not to include illness in medical mj exception,
 Legislature has weighed the pros and cons and decided against it
 Nelson v. State (S. Ct. Alaska 1979, p. 560)
o ∆ caused damage by borrowing heavy machinery to remove his truck from
the mud
o Necessity defense rejected
 Strict liability crimes
o Necessity is available as a defense
 MPC § 3.02 – Choice of Evils
o Same as CL in all respects except:
 No imminence requirement
 May claim necessity even if at fault in bringing about situation
requiring choice of evils or appraising the necessity for her conduct
 If ∆ negligent in bringing about necessity, may be
prosecuted for crime of negligence
 If reckless, may be prosecuted for crime of
negligence/recklessness
 Distinguish from duress
o Necessity requires a situation created by nature, not another human
o Principles of Excuse
 Duress
 Common Law elements
o Imminent threat by another person of death or serious bodily injury if ∆
does not commit a criminal offense
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 Threat to economic prospects or property is not sufficient
 Veiled threat of future, unspecified harm not enough
o Well-grounded fear that threat will be carried out
o No reasonable opportunity to escape the threatened harm except through
compliance with demands of the coercer
o ∆ not at fault for exposing self to the threat
o Cannot be raised in a homicide prosecution
Excuse or Justification?
o Traditionally viewed as an excuse, but under some circumstances may
seem like a sort of justification (like necessity)
o Because it is characterized as an excuse, it is personal to ∆ and does not
negate guilt for accomplices or other parties to the crime
United States v. Contento-Pachon (9th Cir. 1984, p. 583)
o Cartel threatened to kill ∆ and family if he did not smuggle cocaine
o Court finds that necessity defense d/n apply, but duress does
o Imminence/well-grounded
 Guy making threats knew names of ∆’s family members, made
threats on multiple occasions, ∆ was being watched throughout trip
o Escape
 Cops are often in cahoots with cartels
 No duty to pack up your life and flee in this situation
 Not reasonable
 Perhaps he should have trusted Panamanian cops
o Sufficient to submit the defense to the jury
Distinguish Duress from Necessity
o Necessity is a justification while duress is an excuse
o Necessity requires balancing of the harms, while duress does not
 If someone threatens to cut off your arm unless you cut off
someone else’s arm, duress may be a valid defense but necessity
would not be, since harm avoided does not outweigh harm caused
o Necessity not limited to death or serious bodily injury as in duress
o Duress must include a threat from a human
Duress and Mens Rea
o Can be raised for SL offenses, because is an affirmative defense, and does
not negate a mens rea element
o Same arguments that support duress defense may often support a finding
that ∆ lacked the requisite intent
 ∆ acting under duress probably will not have purpose; knowledge
at best
 If there is specific intent (with intent to . . .) very likely negated
Duress and Battered Spouse Syndrome
o May be easier to satisfy escape element of duress than self-defense
 But there is still the imminence problem
o Abuse not usually tied to a demand that ∆ commit a crime
 Abusive husbands d/n usually say “kill me or I will kill you”
o But see State v. B.H. (p. 590, n. 9)
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MPC Approach
o MPC § 2.09(1)
 Duress is an affirmative defense to unlawful conduct if:
 ∆ was compelled to commit the offense by the use, or
threatened use, of unlawful force by coercer upon ∆ or
another person; and
 Person of reasonable firmness in ∆’s situation would have
been unable to resist the coercion
o MPC § 2.09(2)
 Defense is completely unavailable if ∆ was reckless in placing
herself in situation in which it was probable that she would be
subjected to duress
 Also unavailable if ∆ was negligent in placing himself in situation,
if negligence suffices to establish culpability for the offense
o Distinguish MPC from CL
 MPC d/n require imminence of threat
 Threatened harm need not be threat of death/serious bodily injury
 But must be physical harm to a person
 Imperiled person need not be ∆ or a member of her family
 Defense is available in homicide prosecutions
Intoxication
 Analysis
o Voluntary intoxication is only a defense to SI crimes, and only if as a
result of intoxication, ∆ did not form requisite SI
o Involuntary intoxication is a defense to both SI & GI crimes, if as a result
of intoxication, ∆ did not form requisite mental state
o Intoxication is voluntary if it results from knowingly ingesting something
that actor knows or should know can cause her to become intoxicated,
unless she was coerced to ingest it
 United States v. Veach (6th Cir. 2006, p. 603)
o ∆ charged with:
 Forcibly assaulting officer (GI)
 Threatening assault/murder/kidnapping of officer with intent to
impede, intimidate . . . (SI)
o Voluntary intoxication serves as defense only for second charge, b/c he
could not form intent to intimidate b/c he was not conscious it
 Weird result (p. 606 n.2)
o ∆ could offer voluntary intox defense to assault w/ intent to commit rape
(SI), but once he commits the rape (GI), no such defense allowed
 MPC § 2.08(1)
o Intoxication, voluntary or involuntary, is a defense if, as a result of the
intoxication, ∆ lacked requisite mental state for an element of the crime
o BUT, when recklessness is an element of the crime, ∆ cannot negate the
recklessness element with evidence of voluntary intoxication
Insanity
 General Principles
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o Can be used for two purposes
 Negate mens rea
 ∆ thought she was strangling an orange (no MR for murder)
 Result is acquittal, no automatic commitment
 ∏ has burden to show MR
 Present affirmative defense
 ∆ thought she was strangling a human, but she was insane
 If ∆ is acquitted on second ground (aff. defense), then most
states require ∆ be automatically civilly committed
 ∆ has burden to show affirmative defense
o Theories of Punishment where ∆ is insane
 Utilitarian
 Deterrence d/n apply
 Incapacitation d/n apply, because they will be committed
 Rehabilitation will be served through commitment
 Retribution
 No moral blameworthiness if ∆ is insane
o Mental Disease or Defect
 Under all tests, crime must result form a mental disease or defect
 Details provided by various tests
M’Naghten Test
o Two Prongs
 ∆ d/n know the nature and quality of the act; or
 If ∆ did know, she did not know what she was doing was wrong
o Determined at time the act was committed
o Wrongness (jurisdictions choose one or other)
 Legal wrongdoing
 Ask whether ∆ knew that what she was doing was a crime
 Moral wrongdoing
 _________
o Criticism
 Emphasis on knowledge of right and wrong uses only one
manifestation of mental illness
 Some insane still know difference between right and wrong
 All-or-nothing approach
 While mental illness is more of a sliding scale
 Compels psychiatrist to testify in terms of unscientific concepts
 Calls for a moral or ethical opinion
Irresistible Impulse (Control) Test
o Adds third prong to the M’Naghten test
 Person is insane if at the time of the offense she acted from an
irresistible and uncontrollable impulse
o Criticism
 It’s too narrow
 Still an all-or-nothing approach
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 Either insane or not insane
 Excludes behavior that’s more reflective but still irresistible
It’s too broad
 Line between irresistible impulse and impulse not resisted
is no brighter than the line between twilight and dusk
 Many offenders may act from an irresistible impulse that
could be considered to arise from a mental defect
Product Test
o ∆ entitled to acquittal if:
 She was suffering from a mental disease or defect at the time of the
crime; and
 The disease was the but-for cause of the criminal conduct
o Has only been adopted by one state
o Criticism
 Basically is just a battle of the experts
 Takes too much from the jury
 All they decide is which expert to believe
 May be too broad, depending on definition of “mental disease or
defect”
 Even those who knew their conduct was legally or morally wrong
could be insane under this test
MPC Test
o MPC § 4.01
 Person is not responsible for criminal conduct if, at the time of
such conduct, as a result of mental disease or defect, she lacks
substantial capacity to either:
 Appreciate the [criminality/wrongfulness] of conduct; or
 Conform her conduct to the requirements of the law
o A combo of M’Naghten and Irresistible Impulse tests
o Distinctions
 “Appreciate” instead of “know”
 A young child may know that shooting someone is “bad,”
but she probably does not appreciate what that entails
 M’Naghten test only recognizes the cognitional prong (prong 1)
 This test has a cognitional element as well as a volitional element
 Employs vocabulary sufficient to give expert witness a place to
effectively testify, but d/n take too much power away from jury
 Substantial capacity instead of any capacity
 So it is not so all-or-nothing
The Federal Test
o ∆, as a result of a severe mental disease of defect, was unable to appreciate
the nature and quality or wrongfulness of her acts
o Differences
 Requires complete cognitive incapacity
 All-or-nothing
 Uses “appreciate” instead of “know”
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Criminal Law I Outline

Spring 2013
 No volitional element
 State v. Wilson (CN 1997, p. 631)
o Issue: meaning of “wrongfulness” under MPC standard
o Issue: do we look at ∆’s subjective morality or society’s sense of morality?
o ∆ believed the murder was justified and necessary for the defense of
himself and others
o However, because he asked cops to take action many times and they did
nothing, he likely knew that society didn’t think the killing was justified
o Personal Morality (∆’s argument)
 ∆ is not responsible for his criminal acts as long as his mental
disease or defect causes him personally to believe that those acts
are morally justified, even though he may appreciate that his
conduct is wrong in the sense that it is both illegal and contrary to
societal standards of morality
 Criticism
 Someone in this category may be deterrable, b/c they know
society disapproves
 How is this much different from someone who is sane but
disobeys a law that they personally think is wrong?
o Societal Morality (∏’s argument)
 Morality must be defined by social standards such that ∆ is
responsible for his criminal acts unless, b/c of his mental disease or
defect, he lacks substantial capacity to appreciate that his actions
were wrong under society’s moral standards
 Criticism
 Court says it does not sufficiently account for delusional ∆’s
distorted perception of society’s moral standards
o Court chooses a hybrid standard
 ∆ insane under MPC standard if, as a result of his mental disease or
defect, he sincerely believed that society would approve of his
conduct if it shared his understanding of the circumstances
underlying his actions
o No states have adopted the Personal Morality standard; most have adopted
the societal morality standard in one form or another
Diminished Capacity
 To Negate Mens Rea
o People v. Wetmore (Cal. 1978, p. 658 n.1)
 ∆ thought the apartment was his, so no intent to deprive owner
o Three paradigms for Negation of MR
 MPC § 4.02(1)
 May negate any MR element of any crime
 Some jurisdictions allow evidence of diminished capacity to show
that ∆ d/n form a specific intent of offense, but not for GI offense
 Some allow evidence of mental illness only to establish affirmative
defense of legal insanity, but prohibit such evidence to negate the
mens rea of the offense charged
40
Criminal Law I Outline

Spring 2013
 Like AZ
o Clark v. Arizona (US 2006, p. 662)
 ∆ convicted of first degree murder of cop, which requires intent or
knowledge that victim was cop
 AZ prevents ∆ from introducing evidence of mental illness to
negate MR and show he d/n know V was cop; though he was alien
 Court upholds restriction
 Three types of mens rea evidence that may be offered
 Observational
o Lay persons observations of ∆’s behavior
 Mental disease evidence
o Usually expert testimony, opinion that ∆ suffered
from a mental disease
 Capacity evidence
o Usually expert, about ∆’s capacity for cognition and
moral judgment
 ∆ wants to introduce expert opinion about his schizophrenia
 Court says latter two can be excluded b/c of concerns over
confusing jury, battle of experts, reliability
 Dissent says just because those concerns may sometimes be
present d/n mean they weigh against admission here
 Says evidence will not fit neatly into just one category
 Partial Responsibility
o Even if ∏ proves elements of a crime, ∆ may bring evidence of mental
abnormality, short of insanity, to show that she is less culpable than a
completely sane ∆ and should be convicted of a lesser crime
o Only a few states recognize partial responsibility defense
o And where it does apply, is only a defense to murder, and only mitigates it
to manslaughter
o But all states will consider it in sentencing mitigation
Entrapment
 Jacobson v. United States (U.S. 1992)
o Government agents may not originate a criminal design, implant in an
innocent person’s mind the disposition to commit a criminal act, and then
induce commission of the crime
o Test
o Gov’t must show either
 ∆ predisposed to commit the crime at time of first gov’t contact; or
 It did not induce him
o Certain generalized personal inclinations not sufficient for predisposition
o Here, 2.5 years of pressure and coaxing, so court found that no reasonable
juror could find he was not entrapped
o O’Connor dissent
 Disagrees with setting time for determining predisposition at first
contact, rather than first inducement
 Merely sending materials is not inducement; just casting a line
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