Criminal Law Outline – Professor Cottrol
I. POLICY CONSIDERATIONS: purposes of punishment:
A. Deterrence
1. General- deterrence of the criminal population at large
2. Specific- can we deter the particular offender
B. Rehabilitation- attitudinal reform of the individual
C. Incapacitation/ Incarceration- the theory that we are safer the more criminals are behind bars;
removing dangerous individuals from society
D. Retribution/ “just dessert”- some crimes simply merit punishment, justice requires commensurate
punishment
1. Kant
a. Jus talionis- equitable, retributive punishment/ justice (eye for eye)
b. Offenders should not be used as a means to an end; justice requires a commensurate
punishment, don’t execute a pick-pocket; anti-utilitarian
c. forget utilitarian calculus; murder requires the death penalty for its own sake
2. Critiques of Kant
a. Murphy- offender is the compilation of a bad society- punish accordingly
b. Marxist-there are often mitigating circumstances
c. Utilitarian- can’t escape utilitarian calculus
II. ESTABLISHMENT OF CULPABILITY; elements of culpability required for conviction
A. ACTUS REUS- in order for a crime to occur, there must be a voluntary act on part of offender;
culpable act of the free will (or Failure to act when duty to act)
1. Mere thoughts cannot be the basis for a crime; there must in fact be an action
2. Some statutes require the actions which are required to commit certain crimes
a. For actus reus, a Δ must be engaged in clearly prohibited conduct; if no statute, no crime
i. statute must be specific enough that a reasonable person could understand
b. i.e. statute describing the crime of burglary: required element of breaking and entering
of a dwelling at night- clear actus reus requirement; absent B & E, or absent a dwelling,
or absent its occurrence at night, one could not have a burglary
3. Whether the act was VOLUNTARY
a. “voluntary”- even if forced to do an action under duress, your actions are still a product
of your conscious will and are therefore voluntary
b. Gun to head = still voluntary, actus reus; sneeze = not actus reus
c. Involuntary would be a reflexive action, sleep-walking, convulsive, invol. intox. etc.
d. voluntary may be found if def. knew they had a chronic condition and failed to take
proper precautions (i.e. seizures, sleep-walking)
4. Intoxication
a. involuntary intoxication- one is forced to consume alcohol/drugs
b. voluntary intoxication- actions done under voluntary intoxication will satisfy the actus
reus requirement
i. Defense- possible to assert as a defense to a specific intent crime that def. was unable
to form the specific intent to commit a crime
5. Omission/Failure to act- under what circumstances is there a requirement to act?
a. generally one cannot be held criminally/civilly responsible for a requirement to act;
Exceptions:
i. When risk is knowingly imposed, may have obligation to take preventative action
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
I.e. knowledge of chronic condition (propensity to sleepwalk) and failure to take
precautions
 actions created peril
ii. Custodial relationship, familial relationship (special relationships)
iii. If one’s actions have created the peril
iv. If one has undertaken a rescue attempt such that it causes others to give up their
rescue attempt; i.e. crowd sees Jones rowing to save drowning victim, crowd walks
away, Jones cannot decide at that point not to rescue
v. Statutory duties- some states have “Good Samaritan” laws- these would override the
common law presumption
vi. Contractual duty- has one contracted to provide a particular service to another; if so,
there would be a duty to act and potential criminal penalties for failure to do so
6. Defenses
a. Some kind of involuntary reaction- muscle spasm, seizure, etc.
b. Hypnosis, sleepwalking, mechanical failure of automobile, medical conditions
c. Individual who knows they have a condition liable when they do not control the
situation/ prevent harm
i. condition you didn’t know about- you won’t be held liable
d. Statute broken is unconstitutionally vague
B. MENS REA- requirement for some degree of guilty knowledge (culpable state of mind); may
also include culpable negligence and failure to meet standard of due care
1. Common stat. lang.: intentionally, knowingly, purposefully, intent to defraud, willfully,
maliciously, corruptly
2. Roeper case- impulse control/ amygdale not fully developed in minors; need to draw the line
somewhere; narrow def. of impulse needed or can argue all criminals lack impulse control
3. MPC ascribes state of mind to crimes: Purposeful, Knowing, Negligent, and Reckless
4. INTENT
a. General intent- (corresponds w/objective fault)- a person is acting
recklessly/negligently; requires an intention to act (voluntarily), and it may have mens
rea requirements ranging from recklessness to strict liability
i. culpable state of mind w/o intent- i.e. one is behaving recklessly and should have
realized the actions placed the public at an unreasonable risk
ii. Killing- one intended the action but not the killing (involuntary manslaughter)
b. Specific intent(corresponds w/subjective fault)- intent to bring about an actual result
i. w/1st deg. murder, must show convicted person intended to kill victim- premed
c. Liability w/o fault- w/crimes of recklessness, individual should have realized he was
placing people at an unreasonable risk (opposed to specific intent); regardless of Δ’s
factual knowledge, and regardless of whether he should have been on notice, we are
going to hold def. strictly liable
i. done frequently in regulatory offenses
 classic example: selling alcoholic beverages to a minor; even if liquor store owner
believed the person was > 21, person had a valid ID, owner is still held strictly
liable regardless of intention/ reasonability of mistake
 Anomaly- Statutory rape- law applies the same strict liability analysisregardless of intention/ reasonability of mistake, the individual is to be held
strictly liable
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
C.
D.
E.
F.
G.
Controversy- this is being done for a real crime as opposed to a regulatory
offense  prison time, loss of civil rights, etc. as opposed to loss of a license,
fine, etc.
 General presumption at law that felonies would have a mens rea requirement
d. Transferred intent- intended to shoot A but shot B instead, you are liable for murder/
attempted murder
e. Intending harm- if intended to hit window but hit person, not liable
f. Intent requirements are very important in terms of defining the offense and can vary
with different crimes
i. Larceny- general requirement that def.s intentionally take the property which they
know is not theirs w/the intent to deprive the rightful owner of the property; absent
any of these factors, it would not be larceny- specific intent
ii. Negligent homicide only requires that def. negligently caused another’s death- general
intent crime- intending he action, coupled w/negligent behavior
Mistake of fact- an honest (sometimes unreas.) mistake of fact can negate liability
1. Not applicable defense in strict liability crimes
2. Defense to specific intent crimes (thought hat was mine)
3. Defense to general intent crimes (I reasonably believed I had consent for sex)
4. Where a mistake simply alters the degree of the defense, it will not provide a defense
a. i.e. shoplifter stole an item slightly over limit for higher crime, even tho she believed it’s
value was under
5. Practical difficult of proving whether def. knew of the law
6. Policy issue- does this make generally law abiding citizens liable for laws they could not be
reas. expected to know
Mistake of law- can be a defense where knowledge of the law is an element of the crime
1. i.e. witness asked if she’d been convicted of a felony; if she believed it was for a
misdemeanor, she did not intentionally lie and did not commit perjury- she did commit a
legal mistake though
2. Trend to allow mistake of law defense on the grounds the tax code is so complicated that
honest people are likely to make mistakes
3. Can only be a defense if: law is not published, law determined invalid, reliance on a court
decision, advice from a public official, where knowledge of law is element of crime
Strict Liability Crimes (serving underage alcohol, stat. rape)
1. No mens rea req. or defense allowed
2. Punishment is usually fines, not loss of civil rights
3. Only actus reus defense allowed
4. Stat. rape- only malum en se crime that is strict liability
Malum in se- evil in and of itself (murder, rape, theft)
Malum prohibitum- statutorily wrong , i.e. ignorance of the law of tax forms
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III. HOMICIDE
A. Doctrine of Lesser Included Offenses- homicide is a general offense w/varying degrees; as long
as there is sufficient evidence to sustain a greater charge, a conviction may stand from the jury of
a lesser charge
B. 1ST DEGREE MURDER- premeditated unlawful killing of a human being by another human being
w/malice aforethought
1. Elements:
a. Premeditation- (mens rea requirement)- must have formed intention before the act; split
of auth. regarding length: majority view- intent may be formed in an instant
i. minority view- requirement for significant deliberation; distinguishes btw 1st deg. and
2nd deg.
ii. MPC- person who can fly into such a brutal rage more evil than premeditator
iii. Deliberative- the murder must have been committed according to a preconceived
design
b. Unlawful Killing- Δ must believe the killing is not part of necessary law enforcement
i. no justification (self-defense, necessity), no excuse (insanity), no death penalty, no
accidents, no war
c. Human Being- Δ must be aware they are killing another human being (i.e. in some
cases, fetuses)
d. Malice aforethought- requires that def. intended to kill the victim, even if the motive is a
humanitarian one
e. Defenses:
i. Actus Reus- didn’t voluntarily kill (seizure, reflex, invol. intox., pushed into); didn’t
kill
ii. Mens rea- any mistake of fact, unreasonable or reasonable
 Specific intent crime- must intend to kill. Reasonable or unreasonable mistake of
fact can be a defense
 didn’t really intend to kill – i.e. intended to push, didn’t intend to die
 Subjective standard of mens rea- what Δ actually thought
f. Diminished capacity and age may be taken into consideration – can be held to a standard
of a reasonable person w/diminished capacity – could negate intent to kill
g. Distinguished from 2nd deg. and vol. mans:
i. Distinguished from 2nd deg- Δ had intent to kill or death was substantially certain (not
really reckless)
ii. Distinguish from vol. manslaughter- no legally adequate provocation
2. FELONY MURDER
a. Definition: the killing of another human being during the commission of, or attempted
commission of, a felony – making one liable for murder one charges as long as
i. death is a direct result of felony (reasonably foreseeable proximate cause- no
intervening act)
ii. felony is inherently dangerous
iii. felony is independent of murder (no assault or battery)
b. Rationale:
i. These are inherently dang. crimes that carry the risk of death
ii. Deter felonies by adding threat of conviction and punishment for murder if death
occurs as a result of the felony
iii. discourages use of violence in commission of felony
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c. Controversial b/c:
i. No evidence it really deters felonies
ii. Substitutes mens rea- had mens rea to commit robbery but liable for 1st degree
murder- not really fair
d. Can be a subset of 1st deg. or 2nd deg. murder
i. 1st deg.- when def. intended to commit one of 5 specifically enumerated felonies
(kidnapping, rape, burglary, arson, and robbery) and victim is killed in the course of
the activity
 allows the conviction of someone who didn’t actually kill, i.e. a co-felon
ii. CA: inherently dangerous felony language can be used as a predicate felony for 2nd
deg. murder; inherently dang. felony language difficult to work w/b/c- how do you
define what is an inherently dangerous felony
e. Usually if a 3rd party kills a felon, there would be no felony murder
f. Agency rule- a felon is responsible for the actions of his co-felons, but not necessarily
for the actions of resisting victims or 3rd parties
i. majority of states use this doctrine; felon only resp. for his co-felon’s actions
g. Proximity rule- if you are committing one of the felonies, you are provoking in
victims/3rd parties their particular reactions and you should be responsible for their
actions, also, b/c you set in motion the chain of events
h. Merger Doctrine- you can’t apply felony murder when the predicate felony was an
intricate part of the homicide; assault cannot be allowed to serve as the predicate felony
when it has been an integral part of the felony- there musts be a separate felony
i. DEFEND by attacking predicate felony (i.e. prove it was not robbery) or argue integral
part of crime so not eligible for felony murder – would lead to 2nd degree or invol.
i. Attack specific intent crime to commit felony- look for mistake of fact
C. 2ND DEGREE MURDER- reckless activity w/a high risk of death or injury; must be show that Δ
appreciated that risk; the actions are so reckless that they carry implied malice
1. Factors:
a. an unintended death
b. brought about due to reckless activity
c. with a high degree of risk (decided on objective stnd)
i. to determine whether act is objectively reckless, balance utility of act v. risk it poses
ii. Actions so reckless carry implied malice of reckless indifference to human life
 actual appreciation of risk
 high probability that act will result in death
 based on antisocial motive
d. where Δ appreciated that risk (subjective stnd)
i. OR risk may be so obvious that one can infer subjective appreciation (Δ won’t admit
subjective awareness)
 Test to infer subjective awareness:
 social utility of conduct
 magnitude of risk-foreseeability
 actor’s actual knowledge
 precautions to minimize risk
2. Examples: extremely vicious assault, discharge of a gun in a crowded area
3. Mitigated by provocation if done in the heat of passion; provocation must have been such as
to cause a reasonable person to lose control, somewhat modified in light of age/background
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a. split of auth. on whether provocation must be instantaneous
4. Defense- only reasonable mistake of fact is a defense
5. DEPRAVED HEART MURDERa. Commonwealth v. Malone- Russ. Roulette played by 2 boys; Held- a person of
ordinary intelligence/exp. would understand RR poses an unreas. harm to lives of
participants (there should be a subjective awareness of the risk)
D. MANSLAUGHTER [murder v. manslaughter- malice v. lack of]
1. VOLUNTARY MANSLAUGHTER- the deliberate unlawful killing of another that occurs in the
heat of passion w/legally adequate provocation
a. specific intent crime (specific intent to kill victim)
b. instantaneous (no time for passions to cool)
i. occurs in heat of passion
ii. no time for a reasonable person to cool off
 law is moving toward looking at intensity of provocation rather than just time
c. deliberate killing presumably w/o malice b/c there is legally adequate provocation
(mitigates/ relieves malice)
d. Legally sufficient provocation- Δ is provoked by that which would provoke a reasonable
person
i. words alone can never provide legally sufficient provocation (maybe if convey info)
ii. i.e. witnessing wife cheating, witness violence against close family member
e. Rationales for lessened offense of voluntary manslaughter under provocation theory:
i. Diminished capacity theory- the passions of Δ were so inflamed that he has diminished
capacity and is less responsible for his actions
ii. Contributive fault theory- victim did something to arouse the rage of the Δ
f. Transferred intent does work here
2. INVOLUNTARY MANSLAUGHTER- death from reckless activity on part of def. w/o need to
prove subjective awareness of risk (lacking specific intent)
a. General intent crime- intended to commit the act that results in death; thus, only allow a
reasonable mistake
b. must meet the objective test of reckless; doesn’t matter if Δ knew they were reckless;
ask whether a reasonable, prudent person would behave in this way?
c. thin line btw depr. heart and involuntary regarding subj. awareness
d. Probable harmful consequences:
i. Objective standard- would a reasonably prudent person in Δ’s position have
recognized that his/her actions posed unacceptable risk?
e. Actus reus element can be: lack of precautions can provide for recklessness
i. Look for reckless act w/unreasonable risk posed to another
f. Make case for murder 2
E. NEGLIGENT HOMICIDE- lesser bar than that for involuntary manslaughter
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IV. RAPEA. STATUTORY RAPE- strict liability crime imposed upon a person who has sex w/an individual
who has not met the statutory age of consent
1. Mens Rea issue- should we use strict liability?
a. 1 view- they are strictly liable; this has been a strict liability crime historically in the
common law; court doesn’t want to change law when legis. has not included mens rea
language; hard to defend on moral grounds when reas. mistake of fact
b. Against strict liability- in absence of mens rea, presume mens rea and possibility of
mistake of fact defenses
2. Now gender neutral
3. States modify when age is higher or lower
4. Defense:
a. Actus reus only- Δ did not have sex act, relex, hypnotize
b. No mens rea defense: can’t introduce any mistake of fact (i.e. ev. of mistake of age)
B. FORCIBLE RAPE- unlawful sexual intercourse w/a woman against her will by force or threat of
imm. force
1. Historical Developments:
a. Unlawful element precluded husbands from liability; now, statutory changes allowing
wives to charge rape.
b. Now, men can charge homosexual rape/sodomy, as well as women.
c. Change of force requirement- before- required ev. of resistance from victim
d. also, women can now be charged
i. MPC- forcible rape is gender neutral
2. Did def. believe that complaintant was willing (Mens Rea)? Willingness is a frequent
defense
a. GENERAL INTENT- Objective Standard (you meant to have sex w/victim)- just need
to prove recklessness or negligence
i. Defense- you believed there was consent. You’ll be held to an objective standard
though- the subjective belief has to be reasonable
 an honest, unreasonable belief of consent does not negate intent
 makes a difference in cases of mentally handicapped
ii. Was there actual willingness on part of complaintant? if so, the against her will (actus
reus) requirement not satisfied
b. An honest and reasonable mistake as to willingness can be a defense
c. An unreasonable mistake of willingness cannot be a defense
 SPECIFIC INTENT- Subjective Standard - you have to intend to have sex
w/victim against her will
d. Question: what difference does it make whether a jurisd. adopts honest and reas. or
honest and unreas. mistake make? might make a difference if you have def. w/below
normal capabilities
V. THEFT
A. LARCENY- the trespassory taking and carrying away of the valuable property of another w/the
intent to permanently deprive the rightful possessor of the property
1. Trespassory taking (actus reus req.)
a. Policy rationales: 1. protection of property 2. maintaining peace
2. Asportation- movement of the item
a. MPC- suggests doing away w/asportation requirement
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3. Monetary value- must be one cent or more; today, largely important in separating grand and
petty larceny ($50 and $500 may fall btw)
4. Specific intent crime; Δ must know owner has superior possessory interest & have the intent
to deprive permanently
a. Property must be in the possessory interest of another
i. Guilty of larceny if another has a superior possessory interest (i.e. if it has been stolen
and is resold)
b. Joint ownership claims can negate larceny charges
i. Some states have held this precludes liability from a partner stealing from a
partnership; other states have rejected as partner only has part of an interest
c. Defense: Not larceny if intended to return or thought it was yours
5. Services and growing goods are not covered
6. Larceny by trick occurs when Δ uses deceptive means to obtain possession, but not the title
or ownership, of another person’s personal property (can obtain thru consensual borrowing)
7. Embezzlement- the fraudulent appropriation of property of another by one who has been
entrusted w/possession
8. False Pretenses- a misrepresentation by the Δ of a present or past material fact w/the intent to
defraud the victim, where the victim relies on the misrepresentation in transferring title to
some property
9. Lost Property/ Mistaken Delivery
a. MPC- finder is guilty of theft if he fails to take reasonable measures to restore the
property to its owner when he knows it has been lost/delivered under mistake
b. Common-law- “finders keepers”; no intent to steal
B. ROBBERY- taking from a person in his presence by force or threat of force
1. Combo of assault and theft
2. Possible claim of right defense- ordinarily one can make this defense: I believe that I am the
owner, and I had a right to take it b/c ____; generally not allowed when it involves robberya. court- you must resort to legal help; more likely to be allowed when it is larceny by
stealing rather than one involving a confrontation
C. BURGLARY- at common law- the breaking and entering of the dwelling of another at night
w/the intent to commit a felony
1. Defense- if you can knock out intent to commit a felony, you can know out burglary, and
make it the less serious crime of B & E
2. Issue- can one burglarize one’s own home (i.e., in cases of co-habitation); Generally, no, on
the theory that burglary is designed to protect one’s quiet enjoyment of one’s home, so if one
had a right to be there, no burglary
VI. DEATH PENALTY- Rationale: Serves as retribution and deterrence measures for heinous murder
A. Policy Issues:
1. Walter Burns- support for the death penalty should be about retribution, not deterrence;
denies the presupp that all lives are equal- some men are evil and deserve death penalty
2. Charles Black- the death penalty sentences innocents to die; there should be a standard of
proof beyond a reasonable doubt
3. Retribution: Restoring societal balance-just desserts. “Eye for an eye”
4. Deterrence
a. Specific-Δ isn’t actually deterred from committing same crime, he’s dead—would be
locked up for rest of life regardless
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b. General Deterrence-Is it occurring?
5. Incapacitation
6. Rehabilitation: Would it have been possible?
7. Fairness
a. Race Factor-Can juries decide fairly w/o considering race?
8. Execution of the Innocent-No way to correct mistake
a. A 1987 study found that 23 innocent defendants were convicted of potentially capital
crimes. However, with the advent of technology, the likelihood of convicting an
innocent person is decreasing. Of course, access to and persistence of attnys affect this
likelihood.
B. History: Historical Basis: At early C/L, all felony convictions resulted in mandatory death
sentences. The states began to grade homicides according to culpability. By the mid 1800s,
many states abolished the d.p. altogether. In 1960s, low support for dp. By 1963, every capital
punishment statute envisioned that the judge or jury would use discretion in determining whether
or not to impose the DP. Under these discretionary statutes, the sentencer had complete
discretion, unaided by any standards or guideline.
1. Furman v. Georgia- dp struck down in 1972 for cases on constitutional grounds, finding that
the DP was being wantonly and freakishly imposed which was cruel and unusual
punishment., and that standardless discretion violates 8th amendment Mandatory Death
Penalty is unconstitutional and must be an individual consideration of death penalty in
each case
2. Post-Greg-capital sentencing guidelines, and take into account mitigating factors
C. Constitutional question: does the state have a compelling interest for the DP? Supreme Court
ruled it okay.
1. Death penalty in itself is not cruel and unusual
a. Serves RETRIBUTION AND DETERRENCE
b. If no death penalty then will have revenge killing
D. Mandatory DP statutes - in Woodson v. NC, the SC struck down a NC statute that mandated a
DP sentence for 1st degree murder convictions.
1. Must consider individuals character and prior record and circumstances of the particular
offense or violate 8th Amendment
a. Many cases redrafted their statutes—described crimes/circumstances in which criminal
was death eligible. Some juris Δ’s background can be a factor, some states require d to
have a prior felony to be death eligible, each state has own stat scheme
b. Furman concerned w whether judge/jury has unbounded discretion and there is a
possibility of discrimination
c. Renquist: Best way may be to single out category that gets death penalty and limit
discrimination that furman is afraid of
2. Court-NO must have indiv. Consideration
3. There must be standards/guidelines to guide judge/jury in deciding whether to apply death
penalty, but must weigh in mitigating circumstances—age, number of victims, brutality of
crime, etc.
a. Find a ground btwn death penalty not being mandatory and not being arbitrary
b. If it’s mandatory, all murders in x category get death penalty, if don’t, then pot’l for
arbitrariness
4. Post-Furman-Bifurcated trial-death penalty trials are 2 phases
a. guilty or innocent
b. If guilty, penalty phase
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i. for sentencing phase, show character, hardships
c. Problems w bifurcated trial:
i. could lose faith in defense attny bc hearing innocent—then saying guilty just don’t
give me a high sentence
ii. potential for victim impact statements
iii. Defense attnys w/ few resources face 2 trials—which do you prepare for?
 time spent on guilt/innocent phase takes away from preparation for sentencing
phase bc only a few days apart
iv. Automatic Appeal- Δ receiving DP can automatically appeal to state’s highest court
(high cost)
E. Policy questions for death penalty
1. How do we punish, how severely, and for what purpose-deterrence or retribution?
2. Only a 5% of ppl who commit 1st degree murder get executed
a. Most ppl on death row b/c poor legal rep: inexperienced counsel, intoxicated,
3. Public defenders recruits and trains ppl and learns craft—best are selected for capital cases—
but don’t have resources
4. Ability of attnys to investigate crime and go beyond evidence presented by police: skills and
resources
5. No death penalty for accomplice where co-felon does killing
6. Limit execution of those under 18 and those that are mentally retarded—some individuals,
while culpable are nonetheless less responsible than population as a whole and bc of that lack
of responsibility, can’t be liable for capital punishment
7. How difficult to measure deterrence and whether it is working
8. Skepticism that the law is color-blind—disproportionate number of black men in jail, and
disproportionate use of death penalty when a black person kills a white person
9. Given the cost of litigating a capital case through all possible appeals, execution may be
more expensive then life imprisonment-contrary to popular belief.
10. Case: McClesky v. Kemp: use of statitistics in death penalty litigation
a. BK/WV 22% death penalty
b. WK/WV 8% dp
c. WK/BV 3% dp
d. BK/BV 1% dp
e. argued not fair that convicted on basis of race of victim
f. Really underrepresented on death row are bk/bv and might be explained bc a large
percentage occur in Atlanta and many blacks sit on a jury in Atlanta and don’t agree
with death penalty; and as a matter of policy atl prosecutor may not want capital
punishment
g. Ehrlich study has renewed emphasis on retribution—by 70s more social thinkers were
approving retribution saying it was a good end unto itself resurrecting Kant
11. Retribution itself is an adequate basis for the death penalty
a. Literature on deterrence is inconclusive but retribution is unequivocal
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VII. CAUSATION-At what point did the actor not only contribute to the event, but can also be
held legally responsible? Must show “but for” causation and “proximate cause”
A. If required, need:
1. Cause-in-fact/But-for: (Actual Causation) “But for” the accused’s act or omission, the
harmful result wouldn’t have occurred.
a. Substantial factor test- if 2 or more simultaneous causes, both actors are held
responsible (2 ppl shoot at 3rd person, both will be held liable) Even though one or the
other wasn’t necessary to be present.
i. Ie: But for the Δ’s actions the indiv would not have died at time and manner that he
did
ii. Example: A shoots B, leaving B to die. C comes and stabs—hold both liable
iii. Public Policy Issue: we want to discourage these activities: drag racing, morphine.
Therefore, we want to charge the survivor, regardless of whether his car caused the
accident or not.
2. Proximate Cause: (Legal Causation)
a. Requires Reasonably Foreseeable result-Common Shared Standards of remoteness
i. Ultimate harm need not be intended, just foreseeable (Ppl v. Kibbe)
 I.e., Δ who leaves an intoxicated person on a highway in freezing cold weather
w/o glasses and only some clothes is guilty of homicide when that person gets hit
by a passing car - P. v. Kibbe)
ii. What would a reasonable person in Δ’s position have done under circumstances
B. Intervening Causes: Unforeseeable intervening and superseding cause breaks chain of proximate
cause and thus relieves Δ of responsibility
1. In determining whether actions were an intervening and superseding cause, must look at how
def contributed to harm and how foreseeable harm—foreseeable intervening acts don’t break
causation
2. Lack of mens rea
3. An illegal Act is always superseding
a. Doesn’t require anticipation of deliberate wrongful actions of another—even if
relatively common. Should foresee slight negligence on part of others (ie driver on cell
phone)
C. DETERMINING THE LIMITS OF CAUSATION
1. Acts of 3rd Parties: Intentional
a. If actual result is within purpose or contemplation of actor, there is no need to consider
if the victims actions are too remote or accidental
2. Coincidental Acts of 3rd Partes
a. Ask if act was so unforeseeable that Δ should not be held liable
b. Result isn’t rendered unforeseeable merely because the precise agency of death (the car
in this case) couldn’t have been foreseeable. The injury/death was foreseeable
3. Acts of Victims: Suicidal Acts of Victims: Courts Frequently find liability, even if the
victim does something that contributes to the victim’s death, after the attack (suicide)
a. 3 part test, and if there is a positive answer to all three, causation likely resulted
from Δ’s action
i. The forseeability of victim’s acts
ii. Responsibility of the victim--Was victim’s act a natural consequence of threat?
 As def attny, would say some break in chain, that she took action into her own
hands—she asked for him to bring gun, Her act was an intervening and
superseding cause
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iii. Did harm to victim result?
b. When suicide occurs after injury inflicted by defendant, then defendant is
responsible if victim was rendered irresponsible by the injury and as a natural
result of it
c. Encouragement may be enough for liability
4. Other Self-Destructive Acts of Victims
a. Fact that victim knowingly took harmful substance doesn’t relieve d of responsibility
b. These are concurrent causes—but for def action’s harm would not have occurred
i. Def not relieved of liability bc victim contributed to self-harm
c. When Δ partially created the circumstance, he has an obligation to stop it (obligation to
undo the harm that he caused)
d. Policy reason – If defendant is engaged in dangerous activity, he shouldn’t be relieved
of legal liability because the victim also contributed to the harm
5. Complementary and Concurrent Acts
a. Encouragement doesn’t have to satisfy a “but for” test to create responsibility - you are
encouraging the activity
b. There’s a large public policy issue - we want to discourage these activities, drag racing,
morphine, etc. Therefore, we want to charge the survivor, regardless of whether his car
caused the accident or not - deterrence.
VIII. LEGALITY
A. Principle of legality- notion that conduct must have been clearly proscribed as criminal by statute
in order for a person to be found guilty/punished
1. Historically- not the case; England- judges regarded common-law as reflection of natural
law; existed briefly in U.S.; Sup. Ct. decided Congress had to declare criminal acts
2. Ex post facto- prohibition of crimes not defined by statute before the act was committed
3. Balance- no statute will precisely cover every situation; Court determines what acts are
covered by statutes
a. Balancing test: Courts consider:
i. The purpose of the statute- what societal interest was the statute designed to protect?
ii. The extent to which ambiguity is necessary to further the legislative goal of the statute
(look at stat. history)
iii. Impact of the statute on the protected rights of the individual
 Where there is a constitutionally protected right of an individual, courts will
interpret the statutory meaning from the fact of the statute to see if it interferes
w/a protected right
b. Rule of Lenity- a criminal statute that is ambiguous should not be enlarged by the court;
courts should must narrowly, w/ambiguities resolved in favor of Δ
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IX. INCHOATE CRIMES
A. General
1. Inchoate Crimes: Attempt, Solicitation, Conspiracy- preparatory acts for the commission of a
crime
a. General Theory- want to punish would-be wrongdoers who plan to do criminal acts but
don’t succeed
b. Rationale- a person who seeks to commit a harm or a crime is potentially danger
criminal who will eventually succeed
c. Policies Favoring: Deterrence, Incapacitation, Rehabilitation
d. How to punish- problem of balance in retribution
B. ATTEMPT- intent to do an act or to bring about certain consequences, which would amount to
a crime in law, and acting in furtherance of that attempt beyond mere preparation
1. Intent is a necessary element; the crime being attempted must be a specific intent crime
a. Δ must have been acting w/culpability otherwise req’d fro the commission of the crime
which he is charged w/attempting (need specific intent- mens rea)
2. Δ Must have engaged in conduct that was a substantial step toward commission of the crime
(need substantial step- actus reus)
3. Major problem- how to draw a line beyond which a Δ may be convicted of attempt but also
meet the following goals:
a. Distinguishing btw mere thought and preparation
b. There will be many acts which are ambiguous by individuals w/no criminal intent;
distinguishing btw legal and illegal acts
c. Want to give potential Δs an incentive/opportunity to withdraw from the attempt if it is
motivated by a genuine change of heart
d. Want to be able to intercept an attempt early enough to prevent harm/ risk of harm to the
public
4. 2 Tests for Attempt (On exam- USE MPC)
a. MPC Test- the dominant approach
i. Mere prep/solicitation insufficient to satisfy substantial step test
ii. Definition:
 act/omission constituting substantial steps in commission of crime, must be
strongly corrobative of criminal actors purpose
 focus on what actor has already done (not proximity)
 requires focus, clear commitment to the enterprise
 may be assessed by Δ’s statements
iii. Prosecution:
 emphasize what actor has already done v. what is yet to be done
 Argue subst’l steps have been taken and point to intent to commit crime
 Went beyond mere prep of crime: made plans, on path; show clear commitment
to enterprise
iv. Defense:
 Argue actions were ambiguous, can be interpreted as prep for other action not
criminal
 it was not a substantial step
v. Problem: May discourage w/drawal; get Δ so early in process- maybe we should use
proximity test in cases of w/drawal and subst. step test otherwise
b. Proximity Test- look how close to intended scene of crime
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c. Don’t let the rules trap you; don’t go through substantial step analysis if the act is not
ambiguous (shooting a gun to kill someone and missing)
5. Mens Rea Issues:
a. You cannot attempt crimes of recklessness or negligence; attempt is a specific intent
crime
i. I.e.- one cannot have attempted voluntary manslaughter, these are presumably
unintended, resulting from recklessness
b. Defenses: Voluntary intoxication could be a defense to attempt; not necessarily
successful, but one could assert it
6. Anomaly- Attempted Rape
a. Rape- general intent crime; one may be convicted of rape if one recklessly disregards
lack of consent; specific intent not necessary, just reckless disregard
i. Standard in a rape case- would a reasonable person have been aware the victim was
not consenting
b. Attempted Rape- there must be an intent to commit rape; one could be convicted of
rape on either a recklessness theory or an specific intent theory
i. question is, did Δ intend to have sex against the will of the complaintant? – thus
becoming a specific intent crime
c. Only specific intent to commit rape would be sufficient to get an attempt conviction vs.
rape in general is a general intent crime
d. Potential Specific intent defenses, such as voluntary intoxication, might be accepted
7. Policy behind attempt:
a. Opponents of attempt say: Criminalizing activity that hasn’t caused harm
i. Not a deterrent bc person contemplating crime assumes will be successful, and will not
concern himself w penalty for an attempted crime
ii. Doesn’t serve purpose of retribution bc we can’t exact full measure of punishment
against a person given that harm didn’t occur
iii. Inherent problem w/crime of preparation
 Have another statute that prohibits distribution of burglary tools with the intent to
burglarize
 ***Inherent difficulty in prosecuting—possession of objects is lawful provided
one doesn’t have criminal intent ie ski mask and baseball bat
b. Proponents say:
i. Someone who attempts crime is just as dangerous as someone who successfully
completes it.
ii. Deterrence: Allows society to prevent harms before they occur
iii. When d intended to commit a crime and in carrying out intention he committed an act
that caused harm or sufficient danger of harm, it is immaterial that for some collateral
reason he could not complete the intended crime
iv. A person seeking to commit a crime is dangerous and if left unpunished will
ultimately succed
v. Causes deterrence and incapacitation: Incapacitation: won’t have opportunity to
commit other crimes
c. Issue:
i. Def is interrupted in course of action before reaching final stage
 Problem: At what stage in preparation do actions qualify as attempt? (in bank or
talking about robbing)
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
Balance: Protecting victim v. Catching criminal unequivocally (waiting til
crime committed)
o Want to intercept attempt early enough to prevent resulting harm and to
protect pot’l victim
o However, the earlier we intercept the harder it is to prove defendant’s
specific intent. Furthermore, we prevent defendant from repenting and
abandoning/withdrawing
d. How severely do we punish?
i. MPC as severely as the actual crime; Widely adopted half as severe, retribution
function abused if; Traditional punish mildly, crime has been committed
e. Defenses:
i. Abandonment if no accomplices OR Withdrawal/Renunciation if there were
accomplices (if bc of change of heart)
ii. Mens Rea/Actus Reas Defenses since specific intent crime
8. ATTEMPT DEFENSES: Withdrawal and Renunciation
a. Modern View- Voluntary abandonment is a defense to charge of attempt unless
substantial step was take – if can’t stop crime, then can’t abandon
 Exception:
 Cannot be the result of discovery, fear of discovery, or practical difficulties;
must be b/c of genuine change of heart
 Also not voluntary when decide to postpone or sub another victim
 Once Δ has crossed the line btw prep and attempt, cannot abandon; it must occur
before crime is completed or harm done (remorse isn’t abandonment)
b. Rationale:
i. This encourages abandonment if it is a permissible defense
ii. If actor voluntarily abandons crime, he has demonstrated lack of firm purpose
c. Must be considered in light of differences btw substantial step approach and proximity
approach
i. If proximity approach- Δ had to have pulled trigger in attempt to kill; obviously
abandonment would not be allowed
ii. If substantial step- the possibility of conviction for attempt is moved several steps
back; if Δ got in car and started heading to victim’s home, the substantial step
requirement might be reached; better perhaps to allow abandonment before he opens
the door to the house, tho not after he pulls trigger, obviously
iii. In these cases, abandonment allowed later in the steps in proximity approach
d. Attempt merges into target offense; i.e., if murder succeeds- have murder; if murder
doesn’t succeed, then have attempt
C. Legal and Factual Impossibility
1. Factual Impossibility
a. The individual can’t satisfy all elements for the crime b/c the factual circumstances
make it impossible; He will be liable
b. Never a defense; i.e. Δ grabs a toy gun, thinking it’s real, shoots at victim; may be
found guilty of attempted murder- they are a dangerous person and intended to commit
murder; mere fortuity it was just a toy gun and is not enough to resolve individual of
attempted murder
c. The more absurd the attempt, less likely to convict b/c issue of inferring Δ’s intent
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2. Legal Impossibility
a. Even if facts were as Δ believed them to be, Δ’s conduct would not have constituted a
criminal offense; No liability
i. i.e. Δ believes it is illegal to wear a bowtie
b. An absolute defense- if the action is not a crime, there is not statute prohibiting it, then
Δ would have an absolute defense b/c there was no crime committed
3. Mixed Factual and Legal Impossibility
a. Traditional view- if factual impossibility, can’t have conviction; look at facts- taking of
life couldn’t occur
b. Conundrum- i.e. Dlugash, someone shoots at a corpse, believing the person to be alive;
Courts used to not be sure whether it was legal or factual impossibility; some got off on
grounds it was legally imposs.
c. Use: Modern approach- Consider the facts as the Δ believed them as if they were true
(i.e. that the body was living), and decide on that what crime was committed (i.e. so it
could be considered attempted murder)
i. All that matters is whether Δ believed victim to be alive
ii. gets rid of conundrum under traditional approach
D. SOLICITATION
1. Definition:
a. Encouraging/advising another person (or person in a group) to engage in conduct that
would constitute a crime
i. Usually directed at a single individual
b. With the intent that the other person commit the act
c. If that person REFUSES  Solicitation; If agrees  Conspiracy
2. The more general your speech is, the less comfortable court will be in finding solicitation
3. Merges w/attempt and conspiracy: will only be solicitation charges if no attempt and no
conspiracy b/c solicitation merges w/both
a. Solicitation is mere prep and therefore insufficient to constitute an attempt to commit the
crime
i. Solicitation is a lesser crime, usually brought about when solicited crime was not
attempted or committed.
b. If solicited person is guilty of attempt, so is solicitator b/c they encouraged the crime
c. If solicitated agreed, then conspiracy IF AN OVERT ACT occurred- mere agreement is
not enough
4. Actus Reus- encouraging
5. Mens Rea- intent for other person to commit crime
6. Modern: limits liability to situations where def encouraged a crime specified in the statute
a. MPC-must be some indication that getting one to participate in crime—not
important if other person doesn’t receive (use) – don’t need proof of
communication
i. C/L-Person must actually receive solicitation-not guilty if someone intervenes before
solicitation is received
b. Policy:
i. 1 hand, conduct of solicitator isn’t dangerous b/c not willing to act as independent
moral agent.
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ii. But, solicitation gives rise to cooperation btwn criminals. Imposition of liability for
solicitation may be an important means by which the leadership of a criminal
movement is suppressed
c. Merges:
i. Merges w/conspiracy, attempt or target offense
d. No defenses-can’t withdraw or renounce or abandon b/c once you’ve communicated
commitment, you’re done
E. ACCOMPLICE LIABILITY
1. No crime of accomplice; if one is an accomplice to crime, one is guilty of the crime
2. Accomplice liability requires intent to aid or encourage the principle’s crime:
a. intent to assist the primary
i. Not enough to sell a gun, knowing it will be used to commit crime; must sell gun
w/purpose that it would be used for crime
b. intent that the primary party commit the offense
3. Different degrees:
a. Principal in 1st degree-doer of criminal act— must be present at scene of crime
although may be constructively present if leave instrument that causes harm— ie: leaves
a poison which victim swallows
b. Principal in 2nd degree-present at commission of criminal offense, aided, counseled, or
commanded commission. Constructive is valid. Was physically absent, but close
enough to render aid?
c. Accessory before fact: ordered, counciled, or encouraged felony. Diff btwn 2nd degree
and fact is presence.
d. Accessory after fact-Common Law treated as having committed lesser offense.
4. Modern trend- Merge 1st three categories into a general accomplice category, and view them
all as being potentially guilty (principle and accomplice)
5. Accessory after the fact- separate category, liability similar to obstruction of justice (i.e. aids
in flight/concealment)
6. MPC-merged first 3 categories
a. Principle
b. Accomplice: by soliciting, aiding, agreeing to aid or attempting to aid. Guilty of same
offense as principle- may be guilty even if legally couldn’t be a principal.
i. If cause an innocent person to commit a crime, then may be accomplice: Ie: retarded
man who is given realistic toy gun, and someone tells boy to go play. That someone
tells police officer about gun, and officer shoots at boy. Person who set up situation
may be principal.
c. Accessory after fact-separate offense closer to obstruction of justice than to target
offense—
i. A felony has been committed
ii. Def knows the felon committed the crime
iii. Def aids the felon
iv. With the purpose of hindering his/her apprehension by the authorities
7. Actus Reas Reqs- Did def aid/abed the crime- To establish aiding and abetting there must be
some affirmative participation which at least encourages the perpetrator.
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a. Degree of participation required- Actus Reus considerations (did Δ encourage the act);
did Δ intend to aid/encourage the crime; General knowledge that the act will later occur
is not enough, there must be intent to aid; Some courts have found one could be an
accomplice in criminally negligent conduct
b. No requirement of “but for” causation in accomplice liability. Aid or encouragement
provided by an accomplice doesn’t need to be substantial.
c. The assistance given is sufficient if it facilitated a result that would have happened
without it
d. General knowledge that act may aid crime isn’t enough—must be intent to aid
i. One may be found to aid w/criminally negligent conduct
e. One can’t counsel or advise others to violate the law - SC distinguishes between speech
that merely advocates law violation and speech that incites it (this isn’t protected)
8. Mens Rea req’s for result elements
a. Accomplice liability requires proof of purpose. But, one who assists in a reckless act,
leading to death, can be convicted as an accomplice to Invol. Manslaughter
b. In order to aid and abet another to commit a crime, it is necessary that a defendant in
some way associate himself with the venture, that he participate in it as something he
wishes to bring about, that he seek by his action to make it succeed. He must have a
purposive attitude toward it.
9. Solicitation until action occurs, then merges into accomplice liability/actual crime so
convicted of aiding and abetting
10. Encouragement alone enough for accomplice liability—no requirement of “but-for”
causation in accomplice liability-- One may become an accomplice by soliciting, aiding,
agreeing to aid, attempting to aid
a. Argue that this would have occurred regardless
11. A person who has duty to prevent a crime can be convicted as an accomplice (train conductor
found guilty of aiding illegal transport of liquor when knew of liquor.
12. Defense to accomplice liability
a. An accomplice has defense of withdrawal only if removed all aid/encouragement OR
gave police timely notice of crime BEFORE crime became unstoppable
b. However, court may find that repentance came too late to avert disaster
i. Reason: you set this action in motion, have you helped to stop it
13. Special Issues:
a. Person legally incapable of committing the crime may be guilty (i.e. husband encourages
rape of wife in state where husband cannot be charged w/rape, husband could be liable
under accomplice liability)
b. Person who’s conduct is inevitable; cannot be a prostitute’s accomplice
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F. CONSPIRACY
1. Definition:
a. An agreement btw 2 plus people (2+ is traditional view)
i. Does not need to be a meeting of the minds
ii. May be inferred from circumstantial evidence
b. Standard- there needs to be proof that a certain Δ agreed to participate in the criminal
activity- meeting of the minds
c. An overt act in furtherance of the agreement- any act in furtherance of the conspiracy
may be considered an overt act, need not go beyond mere preparation (like required for
attempt)
i. A lawful act may satisfy the overt act req. (i.e. attendance of communist mtgs)
 Will have defense that was a lawful act- i.e. attendance of a constitutionally
protected political meeting
ii. Purpose of overt act- distinguish btw throwing around an idea (popping off) and
having serious intent to take action— need an indication that crime is afoot
2. Minority of jurisdictions- knowledge that the overt act is unlawful
3. Object of conspiracy- does object have to be illegal? Yes— Object of conspiracy must be a
crime under modern view (under c-l, conspiracy if injurious to morals)
4. Distinction btw conspiracy and accomplice liability:
a. Accomplice liability can only be had after the target crime has been attempted or
committed
b. Conspiracy takes criminal liability much earlier- one may have a conspiracy before the
criminal act is attempted or committed and even if the criminal act is not attempted or
committed
5. Prosecutorial advantages of conspiracy:
a. Liability attaches earlier
b. Co-conspirator hearsay exception: inevitability of admissibility of hearsay ev.; out-ofcourt statement made by Δ’s co-conspirators during course of and in furtherance of the
conspiracy can be admitted to the court
c. Venue advantages- multiple Δs, more room to maneuver; all co-conspiractors can be
tried in location where agreement took place or where any overt act in furtherance of
conspiracy occurred
d. Joint trial- all members of an alleged conspiracy can be tried together; has a tainting b/c
of association, one Δ w/another
e. Extended SOL- begins to run only when conspiracy has ended
6. Modern view- conspiracy separate crime from target offence, unlike attempt
7. MERGER Rules: Conspiracy does not merge, Δ may be tried for 2 separate offensesconspiracy is a separate crime from the target offense (Modern view)
a. may be charged w/ “conspiracy to commit murder and attempted murder”
b. MPC- would merge, but do not go w/this; treat conspiracy as a separate offense
8. For Exam: go w/MPC—does away w/Wharton Rule; MPC: You may have conspiracy even
if inherently requires 2 more individuals
a. Wharton Rule- how to handle an offense that inherently requires 2 persons (gambling);
Common-law view- agreements to commit these offenses, not conspiracy
b. MPC disagrees, b/c it ignores function of conspiracy and need to punish inchoate crimes
before the actual danger occurs
9. THE REQUISITE MENS REA
a. Conspiracy has a 2-fold mens rea
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i. Must intend to enter into an agreement
ii. Intend to further the agreement’s unlawful objective
b. Liability of a supplier may be established by his intent:
i. Direct evidence that he intends to participate or,
ii. Through an inference that he intends to participate based on
 His special interest in the activity
 The aggravated nature of the crime itself
 Service is a good often used by criminals
 Stands to profit from crime
 More that service is for general public, less likely for conspiracy
c. Can’t be held liable just if know of conspiracy
10. Actus Reus
a. There is a need for an agreement amongst the parties, but it doesn’t have to be a
“meeting of the minds”. Enough that there’s a “MUTUAL PURPOSE” to do the act and
a “concurrence of sentiment and co-operative conduct”; “concert of action”.
11. POLICY REASONS for conspiracy
a. Group associations encourage more elaborate and ambitious goals and increase the
chances that the scheme will be successful.
b. Moral support of the group strengthens the perseverance of each member - discourages
reevaluation of the decision to commit the crime that a single offender might take.
c. Protection of society of the dangers of concerted criminal activity
d. Even if a single conspirator reconsiders, a return to status quo will be difficult since he
will have to persuade all the other conspirators
e. The agreement to engage in a criminal venture is of sufficient threat to the social order
to permit the imposition of criminal sanctions for agreement alone
12. The Scope of Conspiracy Liability
a. Chain Conspiracies
i. Parties linked together in a linear fashion.
ii. Each party/link has a specialized function and shares a community interest- knowing
purpose depends on each other
b. Wheel Conspiracy- difficult to prove- must have some ev. of common purpose
i. Several subsidiary parties connected to a main central party
ii. Main party is hub of wheel, subsidiaries are spokes
iii. Wheel considered a single conspiracy as long as spokes are all part of same general
agreement
iv. There must be a connection btwn indiv spokes giving them liability for the actions of
others
13. Pinkerton Doctrine- conspirators may be liable for any act in furtherance of the
enterprise and all foreseeable crimes as long as one is a member of the conspiracy; thus
even if one is imprisoned, and the conspiracy goes on, one can be liable for criminal acts of
the conspiracy
a. it’s a federal rule used considerably w/respect to narcotics traffickers
b. gives prosecutors an immense advantage, forces Δs to help, confess, implicate
14. But see MPC- conspirators only liable for conspiracy, liability for further crimes depends on
further involvement by individuals; rejects Pinkerton- USE THIS FOR EXAM
a. MPC rejects Pinkerton:
i. Liable for 1) conspiracy and 2) crimes Δ conspires to commit (Liability for other
crimes depends on extent of involvement)(accomplice)
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 Look at whether wheel conspiracy or just chain
 View focuses on masterminds
15. GETTING OUT OF LIABILITY
a. Withdrawal – get out of liability for target offense by informing all co-conspirators or
police
i. If don’t know everyone involved, would have to inform authorities
ii. Liability for co-conspirators and target offense ends with withdrawal, but still liable
for conspiracy
iii. Undo any harm you did
 If don’t know all co-conspirators, tell police
iv. Requires an affirmative act—informing all co-conspirators of withdrawal. Passive
non-action is not sufficient, but inconsistent behavior can be used as evidence of
withdrawal
b. Renunciation- Successful renunciation- required to get out of liability for conspiracy
charge
i. Need voluntary and complete renunciation of the criminal enterprise either:
 Inform authorities w/enough time to thwart
 Thwart oneself
ii. Good faith renunciation may not be enough-must judge by how effective it would be
c. Difference btw renunciation and withdrawal:
i. If have successful renunciation not charged w conspiracy b/c thwarted target offense—
gets out from conspiracy charge
ii. Withdrawal-still have conspiracy but no liability for target offense
16. Q: can one be criminally liable as a conspirator for providing goods/services to a criminal
enterprise?
a. If it is ordinary, supplied to public, less likely liable, even if she knew
b. Intent test- did Δ intend to further the activities, or did Δ simply furnish same goods she
furnishes to everyone else;
i. If likely to be used exclusively by criminals, or exaggerated price, then courts more
likely to see supplier as part of the conspiracy
G. JUSTIFICATION (self-defense, defense of others, defense of home/property, necessity)
1. Definition of justification: what the actor did was in fact correct—the actor was objectively
right and objectively correct in her act and the law provides privilege to do what is
otherwise unlawful under certain circumstances
a. An act the law does not condemn- it even justifies
b. Justification v. excuse: concerned w/whether a person was objectively right v. excusing
someone’s behavior b/c of their state of mind
2. Self-Defense- involves law of necessity; there must be imminent peril to person asserting
defense; retaliation is not permitted
a. A person may use physical force on another person when and to the extent he
reasonably believes necessary to defend himself from what he reasonably believes to
be use or imminent use of unlawful physical force by another person
i. Permits use of force in certain circumstances
 must not be more than reasonably necessary to repel threatened harm
ii. Imminence- must wait until upturned knife before using deadly force
 Absent immediate threat, cannot use the self-defense claim
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
Reasonable person standard- must be that a reasonably prudent person would
have perceived himself to be in immediate peril of death/serious injury
 Policy- prevent people from taking law into own hands
 may modify in some situations “was it the last, best chance?” (in jail cell,
cellmate says- I’m going to kill you when I wake up, and then he goes to
sleep)
b. Mention Both:
i. Obj Standard-C/L
 Don’t need to be accurate in belief, just need to be a reasonable belief that
aggressor will use deadly force or will commit kidnapping, rape, sodomy or
robbery—if there is statute and must follow statute
 Use reasonable person standard—was 1 obj right in deciding he was in
deadly situation and must react w deadly force?
 Takes Δ’s circumstances into account - physical movements of assailant,
relevant knowledge had about potential assailant by defendant, physical
attributes of persons involved, and prior experiences which could be a
reasonable basis for a belief that another person’s intentions were to harm
him
 Get off if reasonable belief; 1st degree murder if unreasonable belief
ii. Subj. Standard-MPC
 Allows Imperfect self-defense—“you subjectively believed yourself to be in peril
and believed the use of deadly force was warranted”
 Even if 1 not objectively right, we should look at extent individual was
honestly afraid, even if unreasonably so, and view a shooting in those
circumstances as manslaughter instead of murder 1 if honest but
unreasonable mistake
iii. As Prosecution-urge to use an objective standard-Would a reasonably prudent person
in Δ’s shoes believe he is in imminent danger such as to justify use of deadly force?
 Reasonableness of belief; Reasonableness of response
iv. As Defense- Must argue for a subjective standard
c. Majority Rule- one is not required to retreat; may stand one’s ground and kill an
assailant w/o taking advantage of a ready escape route
i. Just use proportionality in self-defense
ii. No jurisdictions require retreat from one’s home
 when co-occupant is attacking, may be a duty to retreat in minority of jurisd.s
iii. Policy argument w/retreat rule- one should only use deadly force if absolutely
necessary to preserve one’s life; but retreating from gun- may place you in greater
danger
 why should law require Δ to abandon defense from aggressor
iv. Assume retreat rule is not in effect in our jurisdiction; one may use deadly force to
save life but not property
d. Retreat Rule only exists in a minority of jurisdictions
e. Life of another- using deadly force to save another’s life; Majority- if your belief was
reasonable that you were coming to the aid of the victim, sufficient; another view- step
into the shoes of the person whose aid you came to
 We’ll use reasonable belief view on exam
f. Arguments for Self-Defense:
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i. Deterrence: support claim b/c person who believes themselves to be under imminent
attack can’t be deterred from defending themselves and allowing self-defense may
deter aggressors
ii. Incapacitation: No need to incarcerate b/c only use self-defense in limited situations
iii. Rehabilitation: No need for rehabilitation b/c acted as most would act
iv. Retribution: Actor is not morally blameworthy for taking an action to prevent injury
to himself
g. Battered women syndrome
i. Idea that imminence requirement should be relaxed b/c they might not be able to
perceive escape routes, they might actually be in reasonable danger; State v. Norman
 imminence requirement would require waiting for an upturned knife
 If a woman kills her batterer he is sleeping, does not satisfy imminence req.
ii. States have rejected this and kept the traditional imminence requirement; Assume it is
not a proper defense in our jurisdiction; still study policy args. for/against for potential
policy question
iii. Policy for imminence requirement:
 Self defense is applicable in an emergency, when it’s impossible to get the law or
the authorities to aid you; there is a limited privilege to engage in self defense.
 No right to engage in lethal self help - supposed to go to the law.
 Prevent ppl from taking law into own hands
 If no imminence requirement the doctrine becomes self-help not self-defense
 In this case of husband sleeping, attack wasn’t imminent
3. OTHER USES OF DEFENSIVE FORCE
a. Defense of Home and Property
i. MPC Permits use of non-deadly force if 1 believes that it is immediately necessary to
protect one’s home/property so long as
 one first asks the other person to stop interfering with the property in cases where
it is reasonable to do so
 one does not use force that he knows will expose a trespasser to substantial danger
of serious bodily harm
ii. MPC permits deadly force when
 they believe the intruder is not merely attempting to enter their home unlawfully,
but is doing so in order to dispossess them of the home and has no claim of right
to its possession
 someone is attempting to commit arson, burglary, robbery or some other felony
involving theft or destruction of property so long as
 that person has used or threatened deadly force against them or in their
presence or
 using non-deadly force to prevent crime would create a substantial danger of
serious bodily harm
iii. If not home, and just protecting property can’t use force (deadly or non-deadly?)
 Policy for prohibiting use of spring gun when not home
 Can’t distinguish btwn innocent intruder (firefighter) and intruder
 A person can exercise discretion, a machine can’t
b. Accidental Killing/Injury of a Bystander
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i. If Δ was NOT negligent or reckless and reasonable force was used to protect against
reasonable harm, Δ is not liable to bystander (as long as self-defense against assailant
is proper)
ii. If Δ was negligent/reckless w/respect to risk to the bystander, def may not claim selfdefense against an unintentional killing charge (manslaughter would still apply)
c. NECESSITY
i. Decide to commit a crime to avoid greater danger (man rushes wife to hospital)
 A choice of evils defense- Δ is saying there was a choice of evils, and the greater
evil would have occurred had he not broken the law
 Limited privilege to break the law in order to avoid greater evil
 Harm to be prevented must be imminent
 No legal alternatives
 Causal link btwn criminal conduct and avoidance of the harm
 Prevented harm must be greater than criminal offense committed
 Δ must not have carelessly or recklessly placed himself in the situation
 Obj. test and does not apply in social policy situations
 If you have a disagreement w/government policy, you can’t just break the
law; you must use legal remedies
ii. Conditions to assert necessity in a prison escape:
 The prisoner is faced w a specific threat of death, forcible sexual attack or
substantial bodily injury in the immediate future;
 There is no time for a complaint to the authorities or there exists a history of futile
complaints which make any result from such complaints illusory
 There is no time or opportunity to resort to the courts
 There is no evidence of force or violence used towards prison personnel or other
innocent persons in the escape
 The prisoner immediately reports to the proper authorities when he has attained a
position of safety from the immediate threat
 Problem: As soon as he tells the police officer, he will be returned to prison and to
situation.
 Majority is stressing how limited necessity defense is, and are afraid of it
being broadened. Do they narrow it too much?
H. EXCUSE (duress, entrapment, insanity)- activities/conditions that negate actus reus/ mens rea
issues
1. General
a. Distinction btw justification (objectively correct, praiseworthy) v. excuse (excusable b/c
of state of mind of Δ)
b. Some involve negation of actus reus or mens rea; i.e. involuntary actions- not a product
of individual’s will (sleepwalking, involuntary intoxication)
i. These can be defenses, even to a strict liability crime b/c you have not satisfied actus
reus or mens rea
ii. Mens Rea- mental impairment, even voluntary intoxication, may be offered as a
defense
 Consider crimes where specific intent is required (burglary, specific intent crimemust B and E w/intent to create a felony inside dwelling); voluntarily intoxicated
person may be able to assert as a defense no intent to create a felony
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2. DURESS
a. Definition: Type of necessity/ choice of evils defense; faced w/choice of committing
illegal acts or suffering grievous bodily harm/death (to Δ or Δ’s family)
b. 2 Approaches:
i. Traditional view- crime committed must be less serious than one avoided
 treat it like necessity- is the harm averted greater than the harm done? (Δ has
choice); balancing of harms
 if you commit an unlawful homicide under duress, you could not assert a
duress defense; but, if you helped someone steal to save your life, better the
victim lose property than you lose your life
ii. Modern trend/ Objective standard - ask whether a person of reasonable resolve would
submit under the circumstances; if it comes up, we’ll use a statute
 treat duress as an involuntary action, and therefore excuses any crime (Δ has no
choice); i.e. duress is a defense to all crimes, b/c all people under that threat will
succumb
 Is the level of duress such that it would cause a reasonable person to
succumb? I.e. you perform an action b/c people are threatening your life.
c. Imminent threat
i. Threat need not be immediate, but it must be inescapable
ii. psychological or financial dependence does not involve an immediate threat and
therefore, can’t raise duress defense
 In cases of brainwashing, duress usually not available as defense b/c Δ may be
under no immediate duress
d. Situation not created by Δ; i.e. association w/a gang; some statutes will argue defense
not available if you created the situation by voluntarily associating yourself w/a criminal
enterprise
e. Necessity- involves choice of evils; argue breaking the law would be the lesser evil
i. cannot be used as a protest against political policy w/which you might disagree, but
must be confined to emergency circumstances (i.e. person breaks window of drug
store to save person’s life v. political protester that had other means to resolve their
complaint)
f. Reasonable mistake of fact is a defense
3. Entrapment
a. Prevalent use of entrapment in drug sales, prostitution and bribery
i. A gov’t agent induces or encourages another person to engage in conduct constituting
an offense by either:
 making false representations designed to induce the belief that such conduct is not
prohibited OR
 employing methods of persuasion or inducement that create a substantial risk that
such an offense will be committed by persons other than those who are ready to
commit it
b. Predisposition/ Objective Test: Was Δ predisposed to engage in the unlawful
conduct? If so, Δ can’t employ entrapment defense. (Emphasis on Δ’s propensity)
THE EXAM APPROACH
i. Reasoning for predisposition test: Defense is to protect innocent/unwary persons who
may be misled or pressured into committing the offense
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ii. Look at whether predisposed to break the law, not whether propensity to do the
act
iii. Look at Δ’s record and see if predisposed to commit crime
 Character and rep of def.
 Whether the govt made the initial suggestion of criminal activity
 Whether the def engaged in activity for profit
 Whether the def showed any reluctance
c. Subjective Test: Focuses on inducement by gov’t agents.
i. Focus on outrageous conduct by police—conduct was so outrageous that we can’t
allow convictions under those circumstances—even if Δ was predisposed.
d. Def should argue both approaches BUT SC rules for the subj. test to apply
e. Policy Reasons: Purpose of the entrapment defense: to prevent police from creating
criminals—resources should be used to prevent crimes, not creating new ones
i. Only a defense when employed by police/agents of police, not when a result of private
agency
ii. Opponents to defense: Person should be able to resist temptation, however strong
iii. Defense may not be available for heinous crimes—but take view entrapment
available for any offense
4. INSANITY DEFENSE
a. General
i. Insanity is a state of mental incompetence where a person is not legally responsible for
his actions
ii. It’s an affirmative defense; like self-defense, Δ has the burden of raising the issue;
there is an assumption of sanity until Δ shows insanity
iii. Once Δ has carried burden, some jurisd.s require prosecution to prove sanity beyond a
reasonable doubt
iv. Insanity/ Mental Defect is relevant to justice process at 3 points:
 During time of crime: basis for insanity defense – if found to be insane, would
secure a not-guilty verdict and may /may not be bound for treatment
 At time of trial: (competence to stand trial) Is the accused so lacking in mental
capacity that she can not assist in her own defense? Can she consult w/her
attorney w/reasonable competency?
 Factors to consider: can she tell her own side of story to the attorney, make
legal decisions, know whether to accept a plea bargain, etc.
 May bar trial and may bar sentencing and serving
 At time of execution in a capital case – an individual must be able to appreciate
under sentence of death, what death means, and generally be aware of his
predicament
b. At time of trial, trial may not proceed if Δ lacks capacity to participate
i. Insanity is a legal defense, not a medical defense.
 The law sets a standard for insanity; left to jury/judge to determine whether Δ
meets that standard
 Reasonable hypothesis that many individuals who commit murder are mentally
disturbed
 At least a significant portion of the people who have committed murder could
be found mentally disturbed in some way, even if it doesn’t satisfy the legal
definition of insanity.
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
How well can juries/judges understand scientific ev. when there is conflicting
testimony from experts?
 Did Δ commit act, and did Δ commit b/c of mental illness?
 Based on threat of future harm, can be kept in mental institute indefinitely
until auth.s deem him cured. Some individuals will never be released b/c of
fear of liability
 In many cases, a Δ is better off being convicted and serving a definite term
than pleading not guilty for reason of insanity and being bound to a mental
facility for a longer/indefinite period
ii. Administration of insanity defense at time of trial
 Affirmative defense – sanity is presumed unless defense raises the issue
 After it is raised, Δ must prove insanity by a preponderance of the ev.
 Division among courts over whether prosecutors or court might be allowed to
raise the insanity defense on their own
 Arguments for allowing this:
o Some Δs are clearly insane and we shouldn’t prevent courts/prosecutors
from raising the issue and removing Δs to proper treatment despite Δ’s
objection
o If accused is lacking in mental capacity, he will not be able to assist in
his own defense- i.e. tell his side of story to attorney, decide how to
plead, generally be a knowing participate (in general, meaningfully
participate in the trial)
 Arguments against –
o This is a Δ’s decision (personal autonomy) – Δ has an interest in
escaping stigma of being labeled insane, and escape harsh conditions of
treatment in mental facilities
o Even a mentally disturbed Δ may want his day in court to assert
innocence – just b/c Δ is disturbed/insane, doesn’t mean he’s guilty
o In some cases, Δ is better off being convicted and sentenced to a finite
term of years than being judged not guilty by reason of insanity and
spending an indefinite period (perhaps life) in a mental facility
c. At time of execution, execution cannot go forward if Δ does not appreciate why they
are being put to death
i. Reasons for not executing
 Condemned individual lacking in mental capacity, and who lacks appreciation
that he is being put to death
 Notion that it’s cruel
 Violation of the 8th Am.- cruel and unusual punishment
o State interest in ensuring a civilized death penalty process – don’t want
to be inhumane and execute an incompetent person
o A death row inmate alleged to be insane should have opportunity to
challenge evidence and get expert opinion
o Can’t assist in appellate process or offer reasons for appeal or clemency
o Individual is unable to make peace w/god: Renquist criticized: religion
should not come into play
o MD approach – the person would be sent to a mental institution and the
sentence would be commuted to life w/o parole
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 other states- cure person and return to death row
 When a person on death row is found insane, that person is removed from
death row and placed in a mental institution. When recovered, may be put
back on death row.
 Tradition view- person removed to mental facilities, and if cured, may be
returned to death row for execution
 Dr.’s Dilemma:
 If primary obligation of physician/psychiatrist is to his patient, raises several
dilemmas; helping a patient regain mental health may cost him his life
 Should a physician attempt to restore mental health knowing that it is likely
the recovery will lead to execution? Best interest of patient?
 If psychiatrist, should you participate in the diagnosis of a death row inmate?
If pronounce sane  help cause execution.
 AMA suggests a person who is incompetent, before receiving medical
assistance, ought to have sentence commuted to life w/o parole
 Dilemma for legal community:
 Should a person who recovers be put back on death row? Isn’t it cruel and
unusual?
 If you don’t put him on death row, do you reward a vicious murderer b/c he
is weaker or better at shamming?
 Should the court system force medication, in order to execute?
d. 3 Tests: Insanity at time of act
i. Insanity as a defense to a criminal charge- should lead to acquittal
 purposes of punishment
 individual responsibility
 issue w/horrific crime- public cry for vengeance
ii. M’Naghten (Cognitive Test) (USE THIS)- Inability by reason of mental
disease/defect to understand nature of act or distinguish right from wrong (mens rea).
 Δ must clearly prove that at time of committing the act, he was laboring under
such a defect of reason, from a disease of mind:
 Did Δ not know the nature and quality of the act he was doing (i.e. squeezing
baby’s head but think it’s grapefruit) OR
 Not knowing right from wrong
o Concern here is not w/actual belief of Δ, which wouldn’t involve the
difference btw knowing right/wrong. Concerned w/ability of Δ to
understand that society, through the law, declares the act to be wrong.
Must have the capacity to understand society’s mores and requirements.
Being from a different subculture is not an excuse
 C/L presumed a basic congruence btw law and morality. However,
the law would need to distinguish btw diff subcultures.
o Problem w/M’Naghten: Doesn’t account for ability to conform actions
even if know right from wrong, and therefore, doesn’t fully take into
account blameworthiness of actions
 inability to understand nature of act, dist. it from right/wrong; focus on cognition
 Prosecution would try to prove Δ’s ability to understand society’s norms, capacity
to understand that society has prohibited such an act
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
Don’t focus on does Δ actually understand – mistake of law, not does Δ
internalize society’s believes, but does Δ have capacity to understand what
society demands?
iii. Irresistible Impulse Test (Volitional Test)- attempts to inject a volitional component
into M’Naghten (actus reus)
 If Δ is found sane under M’Naghten, some jurisdictions will look to this test –
despite knowing right from wrong, b/c of mental disease, Δ lacked capacity to
control his behavior
 Some psychiatrists argue that despite an individual’s ability to understand the
wrongfulness of their actions, they were unable to conform their actions to
society’s norms
 Adds volitional element to M’Naghten
 Policeman at the elbow corollary – if Δ is able to conform behavior when police
are present, then he understands right from wrong, and it wasn’t really irresistible
b/c he exercises control when police are present
 Reason for volition test:
 A judgment of guilt is a moral judgment that an individual is blameworthy.
Judge a Δ not guilty b/c society doesn’t find him blameworthy. W/o volition
test, certain to convict at least some who are not morally responsible and
where it is inappropriate to punish – retribution, deterrence, and rehabilitation
is not merited.
 Limiting the applicability needlessly. Would be a rare case where insanity
defense is used fraudulently b/c invoked so rarely in first place. No evidence
to show that jurors are confused by the volition prong.
 Some courts decide to get rid of volition for several reasons:
 Can’t measure a person’s capacity for self-control
 Risks of fabrication are greatest when experts and jury are asked to speculate
whether a Δ could control himself
 Testimony about volition could confuse jurors
 Superfluous- most person who would fail a volition test would fail a
cognitive test
 Required proof is beyond a reasonable doubt- which is nearly impossible
iv. MPC- combines the two
 MPC – a person is not responsible for his actions if he lacks substantial capacity
to appreciate his actions or conform. Appreciation extends past knowledge to
ability to conform.
 Represents a high-point of criminal laws faith in ability or psychiatry to explain
human behavior. Also, tied to rehabilitative motive of criminal justice.
Currently, less faith in psychiatry and rehabilitative ideal.
v. Where individual reaches definition of insanity, it is so clear, that both pros and
defense agree def is insane and usually there is no trial. Usually a matter of
contention when:
 Crime is really horrific and there is a public cry for justice/public vengeance
 Clear that def is mentally disturbed, but debatable whether disturbance rises to
level of insanity that judge and jury would accept.
vi. Conflicts in insanity defense w/re to theories
 Arguments for Insanity Defense
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
Deterrence: Insane can’t be deterred—don’t have mens rea. No general
deterrence – can deter insane people
 Incapacitation: Would want to confine the insane actor to prevent future
harm to others
 Rehabilitation: Want to confine to treat him
 Retribution: An insane person isn’t blameworthy b/c not freely choosing
agent
vii. Fundamental issues of punishment and nature of individual responsibility.
 Retribution Theory
 Idea that person who is adjudged to be insane, should not be held liable for
actions
 Free will and individual responsibility tend to have a more deterministic view
of human behavior. Less likely to accept fault of individual.
o Person who is judged to be insane isn’t one who is blameworthy and
can’t be held responsible for his or her actions
 Public desire with respect to crime for vengeance
 Desire for deterrence
 Fear (usually misplaced) that insanity defense is a free ride or easy out
 Incapacitation v. Retribution
 Incap: Committing someone is to make sure they recover and don’t harm
society, if that means it takes longer than a jail sentence fine.
 Retrib: Can only imprison in proportion to their culpability/crime
viii. Random Issues
 Jury selection has an impact
 Want to draw a line btw individuals who are insane and those who are anti-social
and who are expected to control their behavior.
 Debate of sociological/psych factors which fall short of insanity—to what extent
should those excuses be allowed?
 Insanity is to protect certain wrongdoers from criminal punishment—using a drug
is inherently wrong—so if drug caused insanity, should we allow insanity defense
 However, a court will consider whether drugs caused damage to the brain
 Traditionally: In federal cases, prosecution has burden of proving beyond a
reasonable doubt that the def was not insane.
 Currently: defendants must prove insanity by a standard of clear and convincing
evidence.
 Idea behind committing someone is to rehabilitate them—focus is on protecting
society not on how long someone should serve for their crime.
ix. Opponents to insanity defense
 Public desire for vengeance and deterrence. Fear that insanity defense is an easy
out and Δ will only spend a few months in a mental institution and get out. This
is misplaced.
 Many have advocated abolition of insanity defense—really strong after Hinkley’s
attempted assassination of President Reagan.
 After the attempt, a number of jurisdictions allowed the charge of “guilty, but
insane.” Insanity wasn’t an acquittal, but it was a mitigating factor at time of
sentencing
 Under insanity, there is a possibility for release when physicians say he is cured.
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
Counter: No physician would allow this.
 Someone who commits a particularly heinous crime MUST be insane
 Given the cost of expert testimony, insanity is a rich person’s disease
 Question psychiatric assessments
x. Cultural Defense: While mainstream culture regards this behavior as criminal, other
culture allows the act. Law does not allow this defense. We care about your cognitive
ability—were you capable of understanding that society considers this wrong? Def
who know that society would condemn their actions as immoral as well as illegal have
no defense simply b/c Δ deems the act moral under his standard of morality.
 I.e. among ppl of SE Asia, there is a courting ritual that looks like rape. If woman
is not integrated into the culture, then have rape charges brought.
xi. Durham Product Test- a Δ is not responsible for criminal conduct if he lacked the
capacity to appreciate the criminality of his action; distinction btw knowing
intellectually and being able to conform
 criticized b/c lack of capacity to appreciate broadens standard for insanityrequires internalization of society’s norms, giving potential Δs more leeway
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