CLASSIFICATION OF CRIMES:
 Infamous Punishments:
o 5th Amendment: “No person shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a grand jury, except in cases arising…”
o United States v. Moreland: Δ brought on information, not indictment or presentment. Potential
punishment under statute was hard labor. Holding: Δ cannot be held to answer, since there is no
grand jury indictment, and the sentencing to hard labor is an infamous punishment. Rule: Crime if
infamous only if possible punishment is infamous. Hard labor is infamous punishment.
 The consequence of calling a crime infamous is you effect procedure -> force prosecutor to
perhaps go after grand jury indictment
 Felony:
o Melton v. Oleson: Π previously plead guilty to violation of liquor laws in District Ct. Π sentenced
to 40 days in county jail. County attorney’s office sent opinion to county clerk/recorder that Π had
been convicted of a felony. Π struck from voting rolls & Π’s position as board of trustee was
declared vacant once suit was brought. Holding: Melton was not convicted of a felony w/in the
meaning of Montana’s voter disqualification law. Rule: In determining the definition of a felony,
the court should use the state law’s definition rather than federal law.
 State Law (Melton): after judgment, a crime of felony if actual sentence is state prison
 Federal Law: felony, if possible punishment is death or more than one year in prison
 Legal consequences flow from the way the crime is classified.
 Issue of federal vs. state: this is a federal crime under state statute
 Actual punishment determines whether crime is a felony.
o

HOMICIDE: the killing of one person by another person
 Each type of homicide is distinguished by the mindset of the offender
 MPC:
o 210.1 (1): “A person is guilty of criminal homicide if he purposely, knowingly, recklessly, or
negligently causes the death of another human being.”
o 210.1 (2): “Criminal homicide is murder, manslaughter, or negligent homicide.”
 Homicide is not necessarily a crime (self-defense, war killings, etc.)
 CORPUS DELICTI: In order to convict for any type of homicide the prosecution must first prove,
independent of any out of court statement of the accused that:
o 1.] Death + 2.] Criminal agency of another as cause (must be established by the prosecution to the
satisfaction of the jury beyond a reasonable doubt)
 Once each of these has been established, evidence regarding the third requirement for a
homicide conviction, that the criminal agent was the Δ, can be introduced
o Downey v. People: Δ observed by witness being assisted into car, had blood on left side of shirt. Δ
testified blood was that of his wife’s. Δ stated to witness: “she seemed to be strangling and I tried to
remove her tongue. Experts testified cause of asphyxia due to strangulation. Decedent had scalp
wound on back of head. Holding: Sufficient evidence, apart from statements of confession, from
which jury might properly find that wife of Δ was dead, and that her death was brought about by
criminal agency of another as the means. Rule: For corpus delicti to be established, in addition to
a confession, there must be substantial (circumstantial) evidence for which the jury must be
satisfied beyond a reasonable doubt.
o Prosecutor must be able to prove elements of corpus delicti w/o using the confession
o Confessions: confessions used later on to prove that Δ committed murder
 Problems: 1.] We don’t know for sure if actual confession was made; 2.] we don’t know if
the confession is true
 Statements in court vs. out of court: In court are not as intimidating and you are under
oath
o Hicks v. Sheriff: Δ charged w/ murder. State filed petition for leave to file information against Δ:
1.] attached transcript of testimony taken at preliminary examination; 2.] attached testimony from
1
former cellmate who alleged that Δ admitted to murder; 3.] attached affidavit of deputy district
attorney. Holding: Evidence insufficient to show probable cause of corpus delicti for crime of
murder. Rule: In order for corpus delicti to be established, there must be evidence that a criminal
agency was responsible for alleged victim’s death independent of confessions or admissions.
Those would only be utilized in establishing probable cause to show accused was criminal agency
causing death.
 No evidence of criminal agency, such as bruising, wounds, etc.; shows the need to carefully
distinguish the evidence of criminal agency from the evidence the Δ was the criminal agent
o Death + Criminal Agency (of the accused):
 Warmke v. Commonwealth: Δ gave birth to illegitimate child. Δ traveled to town & an
employee loaned her a coat to wrap her baby – Δ left suitcase in store. Δ later called store
owner to get suitcase; Δ returned coat but did not have baby. Δ went to home of kinswoman
next day. Π was questioned, and stated she accidentally dropped baby in creek. After
questioning, Δ admitted to purposely throwing baby into creek b/c she was unable to face
humiliation of going home w/ an illegitimate child. Holding: Sufficient evidence to prove
corpus delicti. Rule: An abundance of circumstantial evidence is sufficient to prove
corpus delicti.
 Death: low probability of baby’s survival sufficient
 Criminal Agency: list of facts provided by Δ’s testimony -> child was illegitimate,
Δ’s story did not add up, etc.
 MURDER: homicide w/ malice aforethought
o MPC: Except as provided in Section 210.3(1)(b), criminal homicide constitutes murder when:
 (210.2)(1)(a) “it is committed purposely or knowingly; or (corresponds w/ prong 1, intent to
kill)
 (210.2)(1)(b) it is committed recklessly under circumstances manifesting extreme
indifference to the value of human life. (corresponds to depraved heart) Such recklessness
and indifference are presumed if the actor is engaged or is an accomplice in the commission
of, or an attempt to commit, or flight after committing or attempt to commit robbery, rape or
deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping, or
felonious escape.” (felony-murder)
 MPC: Recklessly (def): “A person acts recklessly with respect to a material
element of an offense when he consciously disregards a substantial and
unjustifiable risk that the material element exists or will result from his conduct.
The risk must be of such a nature and degree that, considering the nature and
purpose of the actor’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 the actor’s situation.”
 (210.2)(2) “murder is a felony of the first degree.”
o Malice Aforethought: (common law)
 1.] intent to kill, not justified (permissible to do what you did; person is not guilty), excused
(law holds it was incorrect to act the way you did, but your behavior will be excused) or
mitigated (reduction: taking what would otherwise be one crime, but b/c of some special
circumstance, you reduce it to another crime)
 2.] or intent to do serious bodily injury, not justified, excused or mitigated
 3.] or depraved heart, not justified, excused or mitigated (recklessness w/ extreme
indifference to value of human life)
 DEPRAVED HEART - Banks v. State: Δ fires gun at train. Δ claims he was
aiming at ground. Δ kills two people – bullets match. Rule: Firing a gun w/
reckless abandonment w/ the possibility of injury constitutes malice. (fulfillment
of prong 3)
o Conscious disregard for an unjustifiable risk
o The risk was substantial
2


DEPRAVED HEART - Commonwealth v. McClaughlin: Δ struck group of
people. Car stopped beyond point of collision; Δ came back and took victim in car.
Rule: There is no evidence of depraved heart (malice aforethought), where Δ’s
actions after collision dispel idea of wickedness of disposition or hardness of
heart.
o More normal behavior here then in Banks, shooting a gun into train.
o Court looks to fact that Δ came back to help victims
4.] in the course of the intentional commission of a felony
 CA felony-murder rule: question of whether felony is “inherently dangerous to
human life”
 Presumption under felony-murder rule is rebuttable – open to Δ to argue that it was
not done w/ reckless indifference to human life
 State v. Hokenson: Δ entered drugstore w/ intent to commit robbery; came w/ a
bomb. Δ was subdued by police after which bomb went off, killing people. Rule:
A person is criminally liable for the natural and probable consequences of his
unlawful acts as well as unlawful forces set in motion during the course of an
unlawful act. (murder in 1st degree)
o Even w/o felony-murder presumption, Δ killed someone w/ reckless
indifference to human life (depraved heart)
o Felony-murder presumption still applies even though death does not occur
until attempted felony has already completed.
 1.] One “continuous” transaction: Felony & murder have to be
part of one continuous transaction. When another human being
intervenes, it raises a question as to whether the act supersedes Δ’s
conduct. [CA rule]
 2.] Conduct causing death was done in furtherance of the
design to commit the felony (in this case, bomb was what Δ used
to commit felony) [PA rule]
 Phillips: Superior Court gave felony-murder instruction: Grand Theft incorporated
as felony in felony-murder rule. Rule: When a person is convicted of felonymurder, the felony itself must be inherently dangerous to human life.
o Prosecution: given the facts of this case, the felony was inherently
dangerous to human life -> however, not all Grand Thefts are (common
law approach: felony must be inherently dangerous to human life)
o Dissent: doesn’t matter if the instruction was erroneous; Δ still guilty under
prong 3: depraved heart
 Possible reasons for felony-murder rule: 1.] perhaps it will discourage people to
commit the felony in the first place; 2.] if felony is convicted, it will prevent the
person committing it to not commit murder
 Reasons against felony-murder rule: 1.] lack of connection: why convict a person
of murder simply b/c their actions accidentally result in death; 2.] there are a lot of
people who commit the same felonies that are fortunate enough not to have a
homicide occur, why have a lesser punishment for the same crime; 3.] distinction
b/w a felony & a misdemeanor is somewhat arbitrary
 Two types of felony-murder rules:
o 1.] felony needs to be “inherently dangerous to human life” -> gets you to
murder
o 2.] one that gets you from 2nd to 1st degree murder. [Ex: Wilson – “All
murder…which is committed in the perpetration or attempt to
perpetrate…burglary…is murder of the first degree.”]
o Merger Doctrine: People v. Wilson (1969): Facts: Δ broke into wife’s
apartment and shot and killed Washington. Δ then went into bathroom and
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o
o
killed wife. Rule: For Δ to be convicted under felony-murder rule, the
felony must be independent of the homicide.
 Faulty reasoning: First degree murder conviction based on Δ
entering the bathroom w/ an intent to commit an assault w/ a
deadly weapon and thereby committed a burglary, in the course of
which he killed his wife and thus committed first degree felony
murder.
 Ireland: reversed b/c the assault was part of the murder; there was
no independent commission of the felony
 Court uses lesser-included offense in fact rule: A is a lesser
included offense in B in fact if facts of A are necessary to proving
B. -> facts that prove homicide necessarily prove assault w/
deadly weapon
 Phillips: Was grand theft a lesser included offense in fact of
homicide?; was it possible for prosecution that Δ caused her death,
but did not commit a Grand Theft? -> Chiropractor might not
have intended to defraud or deceive her; he still caused her death
but might not have been guilty of Grand Theft (crime was not a
lesser included offense in fact)
 Ex: Δ sets fire to building and is charged w/ felony-murder
resulting from arson. Eyewitness saw the whole thing: Δ set fire
to building, fleeing scene, building collapses, and he was dead. ->
only way to find Δ caused death of victim was to find Δ was guilty
of arson
 Deterrence standpoint:
 1.] If your intention (the whole purpose) in committing
felony is to kill someone, then it doesn’t make sense for
the law to say do it carefully so you don’t hurt someone
 2.] Question of degree: if your purpose is somewhat
lower than to kill (serious bodily injury), then there is still
incentive that felony-murder rule will apply [cuts against
the grain of independence requirement]
 PURPOSE TEST: Wilson – “a felony will not be independent of
a homicide if Δ’s purpose in committing that felony was to cause
death or serious bodily injury”
 Express (intent to kill) vs. Implied (no provocation or abandoned/malignant heart)
Death (def.):
 State of Arizona v. Fierro: Δ shot victim. Victim suffered brain death, but remained on life
support for three days. Life support removed & respiration/circulation ceased. Rule: A
valid test for death under Arizona statutes is “brain death” or the common law definition of
death, which involves the cessation of vital functions.
 Common law definition (breathing and circulation stops) vs. revised definition
(brain function has irreversibly ceased)
 Δ’s actions were still the proximate cause of death
 Today: most states follow “brain death” statute
FIRST DEGREE: there has to be a statute which says, for you to be convicted it must fall within a
particular prong.
 Drum:
 1.] Poison (unsure if intent is required)
 2.] Lying in wait (required intent to kill)
 3.] Willful, deliberate, and premeditated killing (required intent to kill)
o Willful: intent to kill
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o
Deliberate: intention accompanied by circumstances as evidence a mind
fully conscious of own purpose and design
o Premeditated: sufficient time enabled the mind to frame the design to kill
and select the instrument, or frame the plan to carry the design into
execution
o Inference of Malice: use of a deadly weapon w/o sufficient cause of
provocation
o People v. Cornett: Rule: In order for a killing to be willful, deliberate, and
premeditated, the Δ must have an intent to kill, have a fully formed design
to kill, and weigh and consider if he really wants to do it.
 Stages: conception of idea (purpose) -> Intent (decision to kill) ->
Overt Act [there must be some appreciable space of time b/w
either conception and intent, or intent and the overt act]
o Majority Rule: there must be 1.] an intent to kill; 2.] some additional
thought; and 3.] weigh the consequences of the killing
 4.] Committed in perpetration of, or attempt to perpetrate, any arson, rape,
robbery, or burglary (intent not required) [See Hokenson – robbery]
o SECOND DEGREE: no deliberate intention to kill exists
 Drum: depravity of heart & disposition of mind
 MANSLAUGHTER: any other unlawful homicide w/o malice aforethought
o MPC: § 210.3(1)(a): “it is committed recklessly”; § 210.3 (1)(b): “a homicide which would
otherwise be murder is committed under the influence of extreme mental or emotional disturbance
for which there is reasonable explanation or excuse. The reasonableness of such explanation or
excuse shall be determined from the viewpoint of a person in the actor’s situation under the
circumstances as he believes them to be.”
 Cf. to Farris (provocation has to be such that an ordinary person of avg. disposition)
 Provocation in Farris is equal to explanation or excuse in MPC
 MPC gives special favor to someone who unreasonably believes that certain facts exist;
common law will not make the same exception
o TYPES OF MANSLAUGHTER:
 I. MITIGATION BY WAY OF PROVOCATION:
 Provocation is an objective component – no ordinary person in that situation would
lose self control rather than react w/ reason
 State v. Farris: Δ convicted of first degree murder. Δ seeks to mitigate killing
using provocation. Rule: Where Δ’s killing of another is provoked w/ little more
than mere words, a manslaughter instruction should not be given to the jury.
o One way to get to manslaughter – mitigation through provocation
o Δ tries to argue two main points: 1.] provocation occurred right before the
killing (heat of the moment; and 2.] he was poked – neither separately nor
combined was sufficient
o Objective requirement: Compare to an ordinary person: would they have
lost self-control?
o One way to argue: past actions themselves may not have been sufficient,
but that doesn’t mean you can’t get provocation by adding it all together –
straw that break’s camel’s back must occur close enough in time for Δ to
cool off
 State v. Grugin: Father informed that daughter had sex w/ son-in-law in own roof.
Δ asked son-in-law why, to which he responded “I’ll do as I damn please.” Rule:
Under particular circumstances, words do amount to a provocation in law, such
that if found by the determination of the jury, the crime is lowered to the grade of
manslaughter. [words + new information]
o Δ in Grugin acquired new information: could be possible distinction to
Farris
5
o
o
o
o
Words alone vs. (words + something else): even though something else
might not have been enough by itself, words might be able to tip the
balance
o Words & assault are not “zeros”: they are just not enough; added together,
however, they get you up to a particular level
o Argument for words: If the indignity is what we are worried about,
couldn’t we make the case that words alone are the same as “spitting in the
face, etc.”
o In Grugin, we have informational words – the finding out about adultery
(they are not merely insulting)
o Possible objective rule: tell jury to think as an ordinary person w/ blanket
rule (insulting words alone are not enough)
 Intent to Kill Mitigated - People v. Borchers: Rule: Where evidence suggests that
Δ killed in the heat of passion, sentence may be reduced from second degree
murder to voluntary manslaughter. [cooling off, sum of events, heat of passion]
o Heat of Passion (def): “Δ’s reason was, at the time of the act, so disturbed
or obscured by some passion – not necessarily fear and never, of course
the passion for revenge – to such an extent as would render ordinary men
of average disposition liable to act rashly or w/o due deliberation and
reflection and from this passion rather than from judgment.”
 Does not have to be anger -> it just has to be extreme emotion
 In this case, Δ had no time to cool off: events just kept occurring
and occurring (built on each other)
II. MITIGATION BASED ON HONEST BUT UNREASONABLE BELIEF
 People v. Watkins: (see below) Case was mitigated down to negligent homicide, but could
have been mitigated down to just manslaughter (voluntary or involuntary depending on
jurisdiction)
III. MISDEMEANOR MANSLAUGHTER RULE
 People v. Williams: Instruction by court – “Involuntary manslaughter = unlawful killing
w/o m.a. and w/o intent. Killing is unlawful when…1.] during commission of a
misdemeanor which is inherently dangerous to human life or 2.] in the commission of an act
ordinarily lawful which involves a high risk of death a high risk of death or great bodily
harm, w/o due caution and circumspection.” Rule: Where there is an error in instruction
to jury, yet it does not result in a “miscarriage of law,” the court will not change the
ruling. [malum prohibitum/malum in se acts qualify for misdeamor-manslaughter rule]
 ***Courts do not insist that misdemeanor be inherently dangerous
 Proper instruction: “The act must be an unlawful act, which is malum in se.” (an
offense that is generally regarded as a true crime and is made a crime b/c the
conduct is wrongful.)
 Malum prohibitum: nothing that you have done is inherently wrong; the only
reason it is wrong is there is a law which say you can’t do it
 Only reason Δ’s actions might have been lawful is if it was in self-defense, which
jury was already properly instructed on.
 This is one way to get to manslaughter, through the misdemeanor-manslaughter
rule.
IV. MANSLAUGHTER BASED ON CRIMINAL NEGLIGENCE
 Some states have statutes which hold if you are criminally negligent than you are guilty of
manslaughter
 Others hold if you are criminally negligent this is a lesser offense than manslaughter and
thus you are guilty of negligent homicide [MPC more in line w/ this; specific provision for
negligent homicide]
 Most common scheme: recklessness – manslaughter; criminal negligence – negligent
homicide
6

Recklessness is higher than criminal negligence b/c it requires the Δ have subjective
knowledge that harm may result
o VOLUNTARY:
 MAJORITY APPROACH: any manslaughter that results from mitigation; otherwise it is
involuntary
 MINORITY APPROACH: any manslaughter w/ intent to kill
o INVOLUNTARY: unlawful homicide w/o malice aforethought and w/o intent to kill
o RECKLESSNESS OR CRIMINAL NEGLIGENT HOMICIDE
 NEGLIGENT HOMICIDE:
o MPC:
 1.] “Criminal homicide constitutes negligent homicide when it is committed negligently.”
 2.] “Negligent homicide is a felony of the third degree.”
 Negligently: “A person acts negligently w/ respect to a material element of an
offense when he should be aware of a substantial and unjustifiable risk that the
material element exists or will result from his conduct. The risk must be of such a
nature and degree that the actor’s failure to perceive it, considering the nature and
purpose of his conduct and the circumstances known to him, involves a gross
deviation from the standard of care that a reasonable person would observe in the
actor’s situation.”
o Civil vs. Criminal Negligence:
 Criminal Negligence: gross deviation from standard of care (does not require conscious
awareness of risk, which would entail recklessness)
 requires a higher level of fault than civil negligence (no need for subjective
knowledge of risk)
 Civil negligence: deviation from standard of care
o (CALIFORNIA) - People v. Rodriguez: Facts: Mother that left her children unattended at home
was not criminally negligent when the house burned down and one of the children died. Rule: In
order to be convicted of involuntary manslaughter, rather than just negligent homicide, there must
be evidence of knowledge, actual or imputed, that the act of the accused tended to endanger life and
that the fatal consequences of the negligent act could reasonably have been foreseen.
 Court here looks to the conduct & not the resultant harm -> evidence proves that death was
the result of misadventure [court applies reasonable person standard regardless of outcome]
 California: Criminal negligence in this case equals negligent in MPC -> voluntary
manslaughter charge incorporates criminal negligence
o (MONTANA) - State v. Bier: Facts: Court held Δ created a risk and grossly deviated from the
ordinary standard when he threw a loaded gun on the bed and challenged his intoxicated wife to use
it. Rule: Where Δ’s negligent conduct was “cause in fact” of victim’s death, victim was foreseeably
endangered, in a manner which was foreseeable, and to a degree of harm which was foreseeable, he
is guilty of negligent homicide.
 Montana statute: recklessness or criminal negligence gets you to negligent homicide
 Recklessness might also get you to manslaughter
 Recklessness + extreme indifference to human life, etc. to get you to murder
 Criminal Negligence vs. Recklessness:
 Criminal negligence: disregards a risk & gross deviation from standard of conduct
that reasonable person would observe in actor’s situation
 Recklessness: consciousness of risk (gross deviation)
 Montana statute vs. MPC:
 MPC: Reckless killing -> manslaughter; negligent crime -> negligent homicide
 Unreasonableness consisted of conduct
o MURDER MITIGATED TO NEGLIGENT HOMICIDE: People v. Watkins: Δ testified that he
believed in good faith that his brother’s life and his own were threatened. Rule: Where there is an
honest belief, but it is unreasonable, Δ will be convicted of negligent homicide.
 Unreasonableness of Δ consisted of forming of belief that his life in danger
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 If Δ’s belief that his life is in danger is reasonable, then he is innocent
 If there is no honest belief, and it was unreasonable -> Murder in second degree
o Viable Fetus Rule:
 People (Michigan) v. Guthrie: Rule: For purposes of a homicide criminal statute, even a
viable fetus is not a person, unless the statute clearly says otherwise.
 Distinction b/w criminal & civil law -> cannot change or reverse criminal statutes
 Prosecution draws on comparison to tort law: tort law vs. criminal law
o Tort law: 1.] compensation; 2.] deterrence; 3.] fairness
o Criminal law: 1.] punishment; 2.] deterrence; 3.] rehabilitation; 4.]
retribution; 5.] incapacitation
o Main difference: compensation
 Golden Rule: Legislature did not intend that a viable person is a “person” w/in the
meaning of that term in the statute, otherwise “viable unborn fetus” would have
been written in
ASSAULT & BATTERY:
 Crime of Assault vs. Tort of Assault:
o Three different major views of assault:
 1.] Attempted battery (minority view)
 2.] criminal assault: an attempted battery & present ability to commit the battery (minority
view)
 3.] most favorable to prosecution – for a criminal assault you need an attempted battery or
TORT definition of assault (majority view – Bell rule)
 Assault (tort): intentional placing of another in reasonable, imminent apprehension
of harmful or offensive contact
o Tort definition: either explicitly or by judicial interpretation requires that
the apprehension be imminent
o No bodily injury needed
 Hypotheticals:
Δ knows gun is
loaded but V
thinks it is
(Min) Att. battery
No
(Min) Att. Batt
and present
ability
(Maj) Att. Battery
or TORT
definition of
assault
No
Yes
Δ thinks that gun
is loaded but V
knows gun is not
loaded
Yes (intent to
cause battery)
No (gun was not
loaded)
They both know that
gun is not loaded
Both think gun is
loaded
No (there is not intent
to commit a battery)
No
Yes (there is
intent)
No
Yes (under
TORT definition
– victim has to
feel
apprehension)
No (TORT definition > victim was not
feeling apprehension;
Δ might have had
intent to cause
apprehension)
Yes (intent to
cause
apprehension &
victim felts
apprehension)
8
 Assault (MPC def.): assault + battery
o Simple Assault: A person is guilty of assault if he:
 A.] attempts to cause, or purposely, knowingly, or recklessly causes bodily injury to another
[requires a little more than common law for battery which requires mere criminal
negligence (recklessness requires Δ’s own subjective consciousness of risk)]
 B.] Negligence causes bodily injury to another w/ deadly weapon [resembles common law
definition of battery, but it adds bodily injury]
 C.] Attempts by physical menace to put another in fear of imminent serious injury [closer to
assault (you don’t have to cause actual harm) – somewhat like tort definition (focusing on
fear) but it is enough that you attempt to (tort you need to); almost like an attempt to
commit tort definition of assault; fear is a little broader than apprehension]
o Aggravated Assault: A person is guilty of aggravated assault if he:
 A.] attempts to cause serious bodily injury to another, or causes such injury purposely,
knowingly or recklessly under circumstances manifesting extreme indifference to human
life [deprived heart state of mind applied to criminal assault]
 B.] attempts to cause, or purposely or knowingly causes bodily injury to another w/ a
deadly weapon
 Battery: (common law definition)
o Def: unlawful application of force to the person of another
 Unlawful: 1.] Δ has to act w/ some specified state of mind; 2.] absence of privilege, i.e. self
defense
 Some juries need nothing more than criminally negligent application of force; some need
recklessness
 State v. Foster (1979): Facts: Colvin had on occasion, beaten and threatened Δ. Δ was told Colvin carried a
gun. Δ bought a gun, and one day upon seeing Colvin reach into his coat pocket, Δ fired two shots at Colvin.
Jury concluded Δ had honest but unreasonable belief that his life was in danger. Rule: 1.] Where Δ
challenges the vagueness of a statute which he claims is unconstitutional, the statute must be judged on
whether it provides fair notice to reasonable understanding and whether it is ascertainable so that police,
judges and juries are not free to decide what is prohibited and what is not. 2.] assault can be had through
criminal negligence. 3.] an honest but unreasonable belief can mitigate first degree assault to second degree
assault
o Why is Δ convicted of assault and not a battery? – courts use the word “assault” very broadly to
include a range of different offenses; many modern statutes don’t use the word “battery” at all ->
some states run the two words together as a similar crime
 United States v. Bell (1974): Facts: Δ attempted to rape female geriatric patient, who was suffering from a
mental disease which made her unable to comprehend what was going on. Rule: It is not necessary to the
offense of assault that the victim have a reasonable apprehension of bodily harm.
o Assault: 1.] attempt to commit battery; 2.] an act putting another in reasonable apprehension of
bodily harm
o Example of situation where Δ would be liable under criminal law definition of assault but not under
tort definition
 U.S. v. Jacobs (1980): Facts: Δ planned to evict victim and family from home on disputed premises. Victim
was shot in arm as he reached for door, and did not notice gun until after he was shot. Δ claims he
accidentally shot victim. Δ followed victim into house and struck him and others w/ gun. Δ found guilty of
assault resulting in serious bodily injury. Acquitted of assault w/ dangerous weapon w/ intent to commit
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bodily harm. Rule: Completed battery includes assault whether or not the victim had an imminent
apprehension of harm.
o If you commit a battery w/o any intent to apply force, it is enough that you applied force through
criminal negligence.
o Ruling under MPC:
 (1): “recklessly caused bodily injury to another”
 (2): “negligence caused bodily injury to another w/ deadly weapon”
 (3): “attempt by physical menace to put another in fear of imminent serious injury”
o To attempt a crime, you have to intend to commit a crime
o Not true that every battery includes an attempted battery -> accidental discharge of gun results in
battery but not attempted battery
o Based on three jurisdictions of assault: possible to commit a battery w/o committing an assault (like
this case)
 ATTEMPTED ASSAULT:
o State v. Wilson (1959): Facts: Δ confronted and threatened wife at her employment place. Δ went
back to car, took out a loaded shotgun, but was unable to reach wife the second time. OR defines
assault as attempted battery plus present ability. Held Δ could be convicted of attempted assault
under OR statute. Rule: Δ is guilty of an attempt to commit an assault, if he lacks the present ability
to carry the intention into effect but has proceeded far beyond the stage of preparation.
 Assault (OR def): requires present ability to inflict corporal injury
 Attempt: conduct which falls short of a present ability, yet so advanced towards the assault
that it is more preparation
 Attempted assault in OR is an attempted battery w/o present ability
 If OR defined assault as “attempted battery”, having an attempted attempted battery would
be silly
 If OR defined assault as “attempted battery or tort definition, them most places would say
no attempted assault (even under tort definition)
THE CRIMINAL ACT:
 State v. Quick (1942): Rule: Intent alone, not coupled w/ some overt act of putting the intent into effect, is
not cognizable by Courts.”
 Blackstone: you can’t convict someone for thinking the wrong thing; there has to be an overt act
 People v. Decina (1956): Δ, knowing he was subject to epileptic attacks, suffered a seizure in automobile. Δ
ran into and killed four people. Court affirmed conviction of criminal negligence. Rule: For there to be an
act, it must be voluntary. The act will be voluntary if you knowingly put yourself into position where you
know you could cause those circumstances.
o Negligence: typically, if there is a subjective consciousness of the risk you have recklessness ->
here, though, it is negligence
o Guilty act: act of getting into car knowing he was subject to epileptic seizures; actual striking of
pedestrian cannot apply b/c Δ was unconscious [conscious disregard of risk not necessary]
o Legal reasoning [reductio ad absurdum]: court’s comparison to drunk driving ->
 If you hold A, then you will have to hold B in a future case
 You don’t want to hold B, b/c it is an absurd result
 Therefore, you should reject A
 One way to rebut: B is not that absurd -> there is a greater element of voluntariness in drunk
driving (not true that if you hold A, B will follow)
o Dissent: If you hold this person guilty, in future cases if nobody is even killed, under majority’s
reasoning the guilty act is getting into car (reckless driving). This is an absurd result, thus Δ should
not be guilty of homicide result.
o MPC: case would still have the same holding b/c the voluntary act was not the seizure, but rather the
Δ making the decision to get behind the wheel
 MPC § 2.01: Requirement of a Voluntary Act
10
o
(1): A person is not guilty of an offense unless his liability is based on conduct which includes a
voluntary act…
o (2): The following are not voluntary acts:
 A.] a reflex or convulsion
 B.] a bodily movement during unconsciousness or sleep
 C.] conduct during hypnosis or resulting from hypnotic suggestion
 D.] a bodily movement that otherwise is not a product of the effort or determination of the
actor, either conscious or habitual
 LEGAL DUTIES:
o An omission of a legal duty is an example of “voluntary inaction” as an actus reus
o Four situations where failure to act constitutes breach of duty:
 1.] statute imposes a duty to care for another [taxes/draft/hit & run driver statute]
 2.] one stands in a certain status relationship w/ another [parent-child]
 3.] one has assumed a contractual duty to care for another
 4.] one has voluntarily assumed the care of another and so secluded the helpless person as to
prevent other persons from rendering aid
 Jones v. U.S. (1962): Facts: Green arranged to have Δ take child from hospital to Δ’s home for fee. Second
child was also taken to appellant’s home, although there was no fee arrangement. Younger child died due to
improper care. Appellate court ruled that legal duty between Δ and children was key to involuntary
manslaughter charge. Rule:. If you are the person who created the duty in the first place, you have to
render reasonable assistance; parent has legal duty to control his/her child – protect other people from your
children. Nothing prevents courts from establishing other sources for legal duties to act
 MPC §2.01(3) Requirement of a Voluntary Act; Omission as a Basis of Liability
o (3) Liability for the commission of the offense may not be based in an omission unaccompanied by
action unless:
 (a): the omission is expressly made sufficient by law defining the offense, or
 (b): a duty to perform the act is otherwise imposed by law
THE CRIMINAL STATE OF MIND
 Mens rea: mental part of crime
o Two elements:
 1.] intent to do the deed that constitutes actus reus or some mental element recognized as a
substitute – negligence/recklessness
 2.] absence of factor or exculpation
o Actus reus: physical part of crime
o General Rule: With the exception of strict liability offenses no one can be convicted of a crime w/o
having a “guilty mind.” For conviction this must also be accompanied by a “voluntary act.” (actus
reus)
o Rebuttable Presumption: Mens rea is often presumed/inferred from the acts of the accused. This
is however a rebuttable presumption and the accused may prove he did not have a guilty mind.
o State v. Chicago, Milwaukee (1903): Facts: Δ’s engineer pulled freight train over crossing w/o
stopping, as required by § 2073 of Code. Situation was not known definitely in advance; there is no
neglect/inadvertence. Statute was penal in character and did not fix “strict liability;” its focus was
“intent of purpose.” Rule: Where a statute is penal in nature and requires a “conscious infraction
of duty,” a crime is not committed where the mind of the person committing the act is innocent.
o State v. Peery (1947): Facts: Δ exposed himself to passerby’s on the sidewalk. No evidence that Δ
signaled to or called to girls. Δ claims he was not conscious of passerby’s. Δ’s professor testified
that Δ always conducted himself as a gentleman, and that he had never seen anything previously.
Rule: Indecent exposure demands deliberate intent of being indecent & lewd – ordinary acts or
conduct involving exposure of the person as the result of carelessness and thoughtlessness do not in
themselves establish the offense of indecent exposure.
o Statute read more like a strict liability statute; however, court chose to read into a guilty mind
(intent) as a requirement
11
o
MPC §2.02 General Requirements of Culpability:
 (1): Minimum Requirements of Culpability. Except as provided in § 2.05, a person is not
guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the
law may require, w/ respect to each material element of the offense.
 (2): Kinds of Culpability Defined
 (a): Purposely: A person acts purposely w/ respect to a material element of an
offense when:
o i. if the element involves the nature of his conduct or a result thereof, it is
his conscious object to engage in conduct of that nature or to cause such a
result; and
o ii. If the element involves the attendant circumstances, he is aware of the
existence of such circumstances or he believes or hopes that they exist.
 (b): Knowingly: A person acts knowingly w/ respect to a material element of an
offense when:
o i. if the element involves the nature of his conduct or the attendant
circumstances, he is aware that his conduct is of that nature or that such
circumstances exist.
o ii. If the element involves a result of his conduct, he is aware that it is
practically certain that his conduct will cause such a result.
 (c): Recklessly: A person acts recklessly w/ respect to a material element of an
offense when he consciously disregards a substantial and unjustifiable risk that the
material element exists or will result from his conduct. The risk must be of such a
nature and degree that, considering the nature and purpose of the actor’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 the actor’s
situation.
 (d): Negligently: A person acts negligently w/ respect to a material element of an
offense when he should be aware of a substantial and unjustifiable risk that the
material element exists or will result from his conduct. The risk must be of such a
nature and degree that the actor’s failure to perceive it, considering the nature and
purpose of his conduct and the circumstances known to him, involves a gross
deviation form the standard of care that a reasonable person would observe in the
actor’s situation.
 INTENT:
o Specific mens rea: intentionally, knowingly, purposely, recklessly, or willfully
o Intent:
 a.] desire or
 b.] if you knew that the consequence was substantially certain to occur
o INTENT IS IMPORTANT WHEN…:
 1.] case where you have specific intent (burglary) -> intent to do something outside of just
actus reus
 2.] is charged w/ attempt to commit any crime
 3.] conditional intent
o A.] General mens rea crimes: crimes that require an intent to do something
 1.] General intent: only intent to do deed that constitutes actus reus. “Intention to make the
bodily movement which constitutes the act which the crime requires.”
 Ex: indecent exposure case – intent is to take off clothes (specific intent: indecently
expose)
 2.] Specific intent: some additional intent on top of intent to do deed that constitutes actus
reus. It cannot be inferred, and must be proven, although proof through circumstantial
evidence is allowed.
 Majority: defense (mistake of law) is limited to specific intent crimes
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o
o
o
o
Ex: [ignorance is not a defense] Woman thinks she is divorced and goes
ahead and marries someone else, thus committing the crime of bigamy.
This is a general mens rea crime: intention to marry when already
married. (if it said w/ the intent to deceive, it would be specific intent)
Ignorance of law would not be a defense.
 Minority: as long as ignorance of law prevents you from obtaining general mens
rea or specific intent, you are excused
 Ex: Dobb’s case – intent to break into stable but specific intent to commit a felony.
 Ex: Larceny – intent to enter upon someone’s land and steal their property (actus
reus) along w/ specific intent to keep it and not give it back
 [Making an untrue statement w/ additional intent to defraud] State v. May
(1969): Facts: Δ signed father’s name to note. Father had never given permission
or authority for Δ to sign his name for him. Δ stated he had an intent to repay the
money. Rule: 1.] Δ has intent to defraud when he has intent to use a false writing
for his advantage. 2.] The possession/passing of a recently forged document
creates a rebuttable presumption of an intent to defraud.
 [Intent to break and enter into dwelling of another in addition to specific
intent to commit a felony]Dobb’s Case: Facts: Δ broke in and entered stable,
where he killed and destroyed gelding. Δ cut sinews of horse’s foreleg to prevent
him from running. Δ acquitted of burglary. Burglary statute requires intent to
break but also intent to commit a felony. Rule: Where Δ’s intent was not to commit
the felony by killing and destroying the horse, but a trespass only to prevent his
running, Δ will not be convicted of a burglary.
o Δ could have formulated intent, after breaking in, to kill horse
B.] Lesser mens rea crimes:
 Ex: negligent homicide
CONDITIONAL INTENT:
 MPC § 2.02 (6): “When a particular purpose is an element of an offense, the element is
established although such purpose was conditional, unless the condition negatives the harm
or evil sough to be prevented by the law defining the offense.”
 Under MPC, it does not matter if demand was lawful or not
 Ex: still guilty of larceny if one takes another’s property intending to give it back if
he inherits other property (condition does not negative the evil which larceny seeks
to prevent)
 Ex: Taking property intending to restore it if it is not his own property does involve
a condition which negatives the evil.
 People v. Connors (1912): Facts: Π’s in error & associates walked up to members of
International Association and threatened to kill them if they did not stop working. Held
there was specific intent to murder. Rule: Where a threat to kill is conditioned upon a
demand, and the Δ does not have a lawful right to make that demand, there is sufficient
evidence of a specific intent to kill. [Legomsky: conditional intent will apply if the demand
on which the intent is conditioned was unlawful in the first place; otherwise, no specific
intent if demand was lawful]
 Comparison to MPC: assault w/ intent to kill vs. assault w/ purpose to kill (MPC)
 Application to MPC: harm is not eliminated by compliance b/c Δ could still go on
and make further threats
Thacker v. Commonwealth (1922): Facts: Δ, while intoxicated, fired gun trying to shoot light out in
tent. Bullet missed woman and her baby’s head. Δ testified he shot at light w/o intent to harm the
woman or anyone else. Held there was no evidence of necessary intent for attempt to commit
murder. Rule: Once can be guilty of murder w/o an intent to kill, but for attempted murder one must
have intent to kill.
13

o
o
In this instance, you have to have intent to commit crime & an act which gets you close to
completion of crime.
 Δ could be convicted of reckless endangerment if prosecution can prove Δ knew his acts
constitute a gross deviation and conscious disregard of the risk.
 MPC §211.1: presumes recklessness if one person points a loaded firearm at
another whether or not the actor believes the firearm to be loaded.
KNOWLEDGE:
 State v. Beale (1973): Facts: Δ’s wife notified by policeman that items in store were
possibly stolen and should be set aside/not displayed. Δ put items back on shelves and sold
them. Rule: In deciding whether the Δ “knows” an item to be stolen, the Δ himself must
have knowledge and it is not enough that a reasonable person would have known the goods
to be stolen. Furthermore, it is enough if the Δ was made aware of circumstances which
caused him to believe that the item was stolen.
 Subjective test [majority rule]: know for certain whether the actual Δ knew.
Difficult proof problems result b/c it is hard to prove what is actually going on in
someone’s head. Look to statements and conduct and infer what they were
thinking.
 Objective test: application of a uniform standard
 MPC provision:
o § 2.02 2(b): knowledge of a result [ex: Δ shot and killed someone as a
result]
 2(b)(1): aware of conduct & circumstances
 2(b)(2): practically certain that conduct will cause such a result
o § 2.02 7 Requirement of Knowledge Satisfied by Knowledge of High
Probability [knowledge something existed]
 “When knowledge of the existence of a particular fact is an
element of an offense, such knowledge is established if a person is
aware of a high probability of its existence, unless he actually
believes that it does not exist.”
 Beale fits under this
 Strict Liability – The Queen v. Stephens (1866): Facts: Δ is owner of quarry along the
river. Although Δ erected a wall, floods carried wall away and w/ it large amounts of
rubbish. Δ’s employees also threw rubbish into river. Δ was unable to supervise workers at
quarry and left management to sons. Held Δ was guilty of creating a nuisance. Rule: Where
the object of the indictment is not to punish the Δ, but really to prevent the nuisance from
being continued, the evidence which would support a civil action (no mens rea) would be
sufficient to support a criminal one. [Imposition of strict liability; mala prohibita even
though it is a common law offense]
 This is similar to a civil offense, however since the public is the injured party, you
use the machinery of criminal law to sue
 Predictors of what the court will do if the statute does not impose a specific mens
rea:
o 1.] Penalty imposed: if jail is possible, strict liability is not going to be an
option; logic is the same if fine is large.
o 2.] Stigma: if conviction will hurt your reputation in the community, the
court will not read in that the legislature intended to defame you. If it is a
reprehensible crime, the court will read in mens rea.
Mala in se: crimes because the act is bad in and of itself (not all common law offenses are mala in
se)
 Negligent homicide: did not exist at common law but invokes mala in se
 Middle ground to proving mala in se: prosecution does not have to prove you were
negligent; Δ can affirmatively convince judge that he took all precautions (burden
is on Δ
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o
o
o
Mala prohibita: acts made criminal by statute; they are not bad in and of themselves but merely b/c
the legislative authority makes the act criminal and penal (not all statutory offenses are mala
prohibita)
 Commonwealth v. Olshefski (1948): Facts: Δ’s driver purchased load for truck & had it
weighed. At that time, it was under the statutory limit. Δ later had truck weighed w/ police
at bridge, at which time is was over statutory limit. Court held it could not pass upon
expediency, wisdom, or propriety of legislative action until it violates a constitutional
restriction. Rule: Where a statutory crime (mala prohibita) is violated, one can be
convicted regardless of whether there is intent (mens rea).
 Vicarious liability – Commonwealth v. Koczwara (1959): Facts: Minors purchased alcohol
from bartender who works for Δ. No evidence that Δ was present on any of occasions nor
that he had personal knowledge of the sales to them. Liquor code imposes strict liability &
vicarious liability. Held Δ guilty and fixed punishment as fine instead of three month’s in
jail. Three months of imprisonment violates “law of land clause” in Constitution. Rule:
Statutory crimes which impose a vicarious criminal responsibility cannot be imposed on
true crimes wherein an offense carries w/ it a jail sentence.
 Synthesis w/ Queen: look to degree of punishment & constitutional requirement
Distinction b/w mala in se vs. mala prohibita is important when:
 1.] whether you can be guilty of conspiracy to commit an offense
 2.] burden of standard of proof -> case of true crime, prosecution has to prove all elements
beyond a reasonable doubt; doesn’t count in civil offenses
 3.] misdemeanor-manslaughter rule: was the crime mala in se or mala prohibita; mala in se
comes w/in scope of rule
IGNORANCE OR MISTAKE OF LAW:
 § 2.04 Ignorance or Mistake
 (1) Ignorance or mistake as to a matter of fact or law is a defense if:
o (a) the ignorance or mistake negatives the purpose, knowledge, belief,
recklessness or negligence required to establish a material element of the
offense; or
o (b) the law provides that the state of mind established by such ignorance or
mistake constitutes a defense
 **Ignorance of the law is generally not an excuse. These are the few exceptions:
 1.] Lambert: offense is malum prohibitum & law is obscure enough that it would
be unfair for person to know about it, then ignorance of that law will be a defense.
 2.] Benesch: conspiracy to commit crime that is malum prohibitum requires
knowledge of malum prohibitum law as well as knowledge of the relevant facts.
 3.] reasonable reliance on government pronouncement. [MPC: § 2.04 (3)(b)]
 4.] Not a defense to say one reasonably relied on his attorney which turned out to
be wrong.
 5.] Specific intent crimes
 State v. Cude (1963): LARCENY IS SPECIFIC INTENT CRIME -> intent to steal, not
simply to take away property of another. Facts: Δ left car at garage. He came back and
was presented w/ a higher repair bill. Unable to pay bill, Δ took car w/ duplicate key after
garage had closed. Δ claims he took the car w/ purpose of selling it to realize enough cash
to pay off the bill. [mistake of law] Rule: Where a common law crime (such as larceny)
requires intent (they all do), and there is a question as to whether Δ had an intent to commit
the crime, it is a question of fact for the jury. [defense b/c this is a specific intent crime]
 Mistake of law was property, not criminal law. When the mistake is to some law
other than the one Δ is being charged of, Δ stands higher chance of being acquitted.
 Commonwealth v. Benesch (1935): Facts: Δ’s indicted w/ conspiring to have registered
brokers or salesmen sell securities in accordance w/ an installment or partial payment
contract which was not approved by the public utilities commission. Rule: 1.] Where Δ’s
are indicted for a conspiracy to commit a malum prohibitum offense, Δ had to a.] know
15
o
about the substantive law [malum prohibitum] and 2.] know they are committing the
offense.. 2.] Δ’s ignorance, in this case of Blue Sky Law, prevented him from forming
requisite intent for conspiracy.
 While Benesch, the head, may have known the law, he cannot be convicted of
unilateral conspiracy. (can be convicted of this when you are set up and conspire
(or think you are conspiring) w/ a government agent.
 The main criteria for determining whether a statute which is silent on its face as to
mens rea implies a mens rea, or is to be treated as strictly liable is to look to the
punishment. If it is only a fine then it is most likely strict liability. Punishment of
imprisonment, a deprivation of one’s liberty, requires mens rea.
 Lambert v. CA (1957): Facts: Δ was resident in LA for over seven years; within that period,
she had been convicted in LA for forgery (punished as felony in CA). Δ had not registered
under Municipal Code. CA statute requires registration w/in 5 days of being in LA. Rule:
Where a person did not know of the duty to register and where there was no proof of
probability of such knowledge, he may not be convicted consistently w/ Due Process.
 Synthesis w/ Benesch: deals solely w/ conspiracy charge, not w/ underlying
securities fraud -> If Δ’s had been charged w/ violating Blue Sky Law, they would
have been guilty.
o If Benesch were charged w/ substantive law violation, Δ’s should have
known to inquire about securities law or is even presumed to know the
law. In this case, Δ’s probably should not have known to inquire.
o Using the passive/active distinction from Lambert on Benesch: active
component – selling securities vs. passive component – failing to gain
approval from Public Utilities Commission
o Legomsky: test should instead by reasonableness of acquiring
 Passive/Active distinction not so much basis for court’s distinction as was notice: If
the Δ had been convicted of the failure to register it would have violated her due
process rights because she had no notice that failure to do so was an offense.
 Case represents minority view: courts are typically not willing to hold that not
knowing the law is a defense for malum prohibitum crimes. For most courts to
allow it, must be clear case that there would no reason for Δ to know of or learn
about the law.
IGNORANCE OR MISTAKE OF FACT (as a defense)
 For a Mistake of Fact defense you need:
 1.] mistake of fact as opposed to law
 2.] reasonable mistake
 3.] Mistake has to be such that actions would not have been wrongful had the facts
been as you thought them to be.
 MPC § 2.04 Ignorance or Mistake:
 2.04 (1): If statutory offense requires knowledge… “Ignorance or mistake to a
matter of fact or law is a defense if:
o (a) “the ignorance or mistake negatives the purpose, knowledge, belief,
recklessness or negligent required to establish a material element of the
offense, or
o (b) “the law provides that the state of mind established by such ignorance
or mistake constitutes a defense.”
 2.04 (2): “…defense would not be available if the Δ would be guilty of another
offense had the situation been as he supposed. In such case, however, the
ignorance or mistake of the Δ shall reduce the grade and degree of the offense of
which he may be convicted to those of the offense of which he would be guilty had
the situation been as he supposed.” – not a defense but it will reduce sentencing
16



King v. Ewart (1905): Fact: Δ convicted of violating Offensive Publications Act. Rule:
Inference of a guilty mind can be rebutted by honest ignorance, and that determination is
for the jury to decide.
 Edwards (dissent): Categorization of cases under statute law
o 1.] Following a common-law rule, a guilty mind either must be necessarily
inferred from the nature of the act done or must be established by
independent evidence [mental state]
o 2.] Those where it is made plain that Legislature intended to prohibit the
act absolutely, and existence of a guilty mind is only relevant for the
purpose of determining the quantum of punishment. [strict liability type
of crime]
o 3.] Not necessary to aver in indictment that offense charged was
“knowingly” or “willfully” committed -> person charged may still
discharge himself by proving to the satisfaction of the tribunal that he had
no guilty mind. [mental state]
 Category 1 vs. Category 3: Category 3 provides a rebuttable presumption of mens
rea (burden of proof on Δ) whereas in Category 1 prosecution has burden of proof.
o last two opinions view this as a Category III crime -> Δ wins this
o If statute does not say on face as to explicit state of mind, court has to
interpret as either a Category II or Category III crime -> 1.] Did the
legislature intend for court to read in some type of mens rea; 2.] If court
think that legislature did not intend this to be strict liability, then what type
of liability did legislature intend. Should it be enough that Δ acted
recklessly?, how about negligently?
o If you conclude that mens rea is supposed to be read in, burden is on Δ to
prove he was mistaken.
People v. Vogel (1956): Facts: Δ married although he was not divorced from wife. Held
that the statute required wrongful intent and based on Δ’s reasonable belief, the Δ did not
have that wrongful intent. Court also held that b/c bigamy is an immoral crime it is unlikely
the legislature intended to hold the morally innocent guilty. Rule: Where a statute does not
write in the element of intent, yet it does not expressly exclude it, the Δ has the burden of
proving that he did not have the requisite intent. [good faith belief can act as a defense to
mistake in fact]
 Majority Opinion: this is a Category III crime -> court assumes that mens rea is
relevant; as to that issue burden of proof
 Rationale that this is not a Category II crime: court look at penalties, stigma,
infrequency (if it was frequent, then legislature might want to spare courts like
parking tickets), moral turpitude
 MPC § 230.1 Bigamy & Polygamy:
o (1): Bigamy. A married person is guilty of bigamy, a misdemeanor, if he
contracts or purports to contract another marriage, unless at the time of the
subsequent marriage:
 (d) the actor reasonably believes that he is legally eligible to
remarry. (excused under this assuming reasonable belief)
Statutory Rape:
 [Majority View] People v. Cash (1984): Facts: Δ slept w/ 16 year old who said
she was 17. Rule: 1.] Reasonable mistake of fact as to complainant’s age is not a
defense to statutory rape charge. 2.] Where a statute does not write in a specific
mens rea intent, yet other provisions include the specific intent, the legislator did
not intend to include the mens rea and thus mistake belief is not a defense.
o Legislative intent: other provision provides mens rea element concerning
mentally ill or physically helpless rape victim
17
o


Public policy: strict liability necessary b/c of need to protect children
below a specified age from sexual intercourse on presumption that their
immaturity and innocence prevents them from appreciating full magnitude
and consequences of their conduct.
o Treats rape as a Category II offense
[Minority View] People v. Hernandez (1964): Facts: Δ had sex with a female who
was 3 months under the age of 18. Rule: Where the statute does not write in a
mens rea element, and no legislative intent or policy is served by imposing strict
liability, a rebuttable presumption of intent will be required. [A reasonable
mistake as to fact]
o Court identified trend: move away from imposition of criminal sanctions in
the absence of culpability where governing statute, by implication or
otherwise, expresses no legislative intent or policy to be served by
imposing strict liability.
o Dealing w/ a reasonable mistake of fact; if this was a mistake of law, Δ
probably would have been guilty.
o Statutory rape treated as a Category III offense
MPC § 213.6 Provisions Generally Applicable to Sexual Offenses
o (1): Mistake as to Age: when the criminality of conduct depends on a
child’s age being below 10 years, it is no defense the actor did not know
the child’s age or thought the child to be older than 10. When criminality
depends on the child being below a critical age of other than 10, it is a
defense for the actor to prove by preponderance of the evidence that he
reasonably believed the child to be older than 10.
CONCURRENCE OF ACT & STATE OF MIND:
 Commonwealth v. Cali (1923): Facts: Δ’s house burned down and he did not alert anyone. Δ immediately
departed from home after fire w/o giving alarm. Rule: Intent can be formed before or after a fire is started.
Furthermore, passive intent to injure insurer can be formulated if Δ does not take proper precautions in
stopping fire. [inaction in itself can form a legal duty to act]
 Jackson v. Commonwealth (1896): Facts: Δ’s attempted to kill woman through cocaine overdose in
Cincinnati. Thinking she was dead, they drove her to Kentucky where they decapitated her and mutilated
body. Turns out woman was actually alive in Kentucky; decapitation caused her death. Defense argues that
since Δ’s did not have intent to kill her in Kentucky, they cannot be convicted of murder. Rule: Δ can be
convicted of murder even if he believes victim is in fact already dead if the victim is still alive.
INCHOATE CRIMES:
 CONSPIRACY: “an agreement to commit a crime”
o Analysis hinges on what the substantive crime is
o At least one of the conspirators must commit one overt act to the commission of the crime
o If two people get together and reach a decision to commit a crime, but end up not committing the
crime, at common law and “minority view” they are guilty of conspiracy
 Rationale:
 1.] extra danger of a group – not a certainty that in a group, if one person pulls out,
the crime still won’t be committed
 2.] even if this particular crime is not committed, now they are in touch w/ one
another and might get in touch in the future
o Reasons for charging conspiracy as an offense:
 1.] existence of a group increases the danger; the more people involved, the more damage
that can result
 2.] it is easier to thwart a crime carried out by one individual rather than group of
individuals
 3.] chance of abandonment is greater if you are on your own
18
o
o
o
 4.] group plan, once planned, is more likely to occur
 5.] if a group successfully commits a crime, they are more likely to commit future crimes
United States v. Figueredo (1972): Facts: Eight Δ’s charged in indictment w/ conducting an illegal
gambling operation. One of the elements of the statute which prohibits “any illegal gambling
business” is that it involves five or more persons. Held Δ’s cannot be charged w/ conspiracy. Rule:
Where there are multiple Δ’s charged, yet the nature of their offenses are the same and they can all
be charged w/ the substantive offense, there can be no separate charge of conspiracy.
 Wharton’s rule: “Cannot charge conspiracy to commit a crime that necessarily requires
the participation of two or more people.” [conspiracy is an inherent element of the
substantive offense and should not be made a substantive crime; presumption of legislative
intent]
 Exception:
o 1.] when offense could be committed by one of the conspirators alone
o 2.] where concerted action was not logically necessary, even though as a
practical matter the offense could not be committed w/o cooperation
(Wharton’s rule: statute requires two or more people to participate)
o 3.] limited to cases where essential participants are the only conspirators
 Ex: under the rule, conspiracy to commit adultery cannot be
charged unless a 3rd party is involved (matchmaker) in the
commission of the offense -> then, all three can be charged w/
conspiracy
 Δ’s do not fall under 2nd exception: they are not third parties
 Court’s [minority’s] view of 3rd person exception: Nobody in this case plays a logically
unnecessary role – you don’t need a matchmaker to have adultery nor a go-between to sell
drugs
 Majority’s view of 3rd person exception: If the number of participants is greater than the
number necessarily required, then Wharton’s rule becomes applicable.
 Hypothetical: if 5 people reach agreement to create illegal gambling operation, but end up
not doing so, are they still guilty of conspiracy? Under Wharton’s Rule, no.
Gebardi v. United States (1932): Facts: Δ paid for journey’s for both himself & a woman, who
consented to go on them voluntarily for the immoral purpose; petitioners engaged in illicit sexual
relations. Penalties of Mann Act directed against acts of transporter as distinguished from consent of
subject of transportation. Rule: Where an Act fails to punish one who participates and consents to
the substantive offense, that same person cannot be convicted of conspiracy, thus effectively
stripping his/her immunity.
 Even if female consents to the transportation, she cannot be guilty of substantive offense;
different story if she actively purchased the ticket.
 Wharton’s rule does not apply: criminal transportation can be effected w/o woman’s
consent, i.e. intimidation or force -> it can be carried out alone
 Gebardi defense: 1.] offense that frequently requires at least two willing participants; 2.]
legislature did not intend to punish particular person for substantive offense
 A case where both rules would provide a defense is where there is a prostitution statute that
only punishes the prostitute, not the client. Under both rules, there can be no conspiracy
conviction.
U.S. v. Falcone (1940): Facts: Δ’s sold materials for manufacture of liquor to another who used it
for unlawful purposes. Held the seller of the goods were not conspirators w/ the buyer even thought
they knew that the buyer intended to use the goods to commit the crime. Rule: To be convicted of
conspiracy or abetting, where the Δ sells an otherwise lawful good to buyer who he knows will use
them to commit a crime, the Δ must still promote the venture himself, make it his own, and have a
stake in the outcome.
 If Δ had sold unlawful good, such as cocaine, he would have been convicted of conspiracy.
 Court weighs policy interests:
19

o
o
1.] limit scope of conspiracy convictions (everything could be considered
conspiracy under a broad definition) -> effects how people conduct their everyday
lives
 2.] public has interest in discouraging sale that seller knows will be used unlawfully
 Look to how serious the harm is -> in the case where the crime is going to be a
serious one, interest in protecting the public is greater [substantive offense is a
felony or serious misdemeanor]
 Civil (liability extends to any injuries which Δ should have apprehended would be likely to
follow from his acts) vs. Criminal Law (attitude towards forbidden undertaking must be
more positive
Pinkerton v. U.S. (1946): Facts: Unlawful conspiracy existed b/w Daniel & Walter. No evidence
showing Daniel participated directly in commission of substantive offenses. They were committed
by Walter in furtherance of the conspiracy. Rule: Every conspirator is guilty of the substantive
offenses that were committed in furtherance of the conspiracy at least if those substantive offenses
were reasonably foreseeable. [Are other conspirators guilty of the substantive offense?] [MPC
p. 538]
 Exceptions: The substantive offense committed by one of the conspirators
 1.] was not done in furtherance of the conspiracy
 2.] did not fall w/in the scope of the unlawful project
 3.] was part of the ramifications of the plan which could not be reasonably foreseen
as a necessary or natural consequence of the agreement
 Pinkerton good law in federal jurisdiction and minority of state jurisdictions -> Majority of
state jurisdictions have rejected Pinkerton (some added a foreseeable qualifier)
 An accomplice to the crime will be guilty of the substantive offense; conspiracy
and accomplice are not quite the same thing as a practical matter
 MPC: § 5.03(5) Overt Act – “No person may be convicted of conspiracy to commit a
crime, other than a felony of 1st or 2nd degree, unless an overt act in pursuance of such
conspiracy is alleged and proved to have been done by him or by a person w/ whom he
conspired.”
 Overt action is an additional element (to unlawful combination), and any act
towards the commission of the substantive offense is sufficient
 MPC consistent w/ majority view of the state -> no MPC provision that makes you guilty of
a substantive crime solely b/c it was committed in furtherance of a conspiracy to which you
were a party.
 Unilateral Conspiracy (FBI sting in which you think both of you are committing the
crime): in most jurisdictions, you have to have two or more guilty parties; MPC: recognizes
unilateral conspiracy
MPC 5.03
 (1) Definition of Conspiracy. A person is guilty of conspiracy w/ another person or persons
to commit a crime if w/ the purpose of promoting or facilitating its commission he:
 (a) agrees w/ such other person or persons that they or one or more of them will
engage in conduct which constitutes such crime or an attempt or solicitation to
commit such crime; or
 (b) agrees to aid such other person or persons in the planning or commission of
such crime or of an attempt or solicitation to commit such crime
 (2) Scope of Conspiratorial Relationship. If a person guilty of conspiracy, as defined by
Subsection (1) of this Section, knows that a person w/ whom he conspires to commit a
crime has conspired w/ another person or persons to commit the same crime, he is guilty of
conspiring w/ such other person or persons, whether or not he knows their identity, to
commit such crime.
 (3) Conspiracy w/ Multiple Criminal Objectives. If a person conspires to commit a number
of crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object
of the same agreement or continuous conspiratorial relationship.
20
 ATTEMPT:
o POLICY REASONS FOR PUNISHMENT: deterrence, retribution, incapacitate dangerous
offender
 1.] Punish those who harm others, in order to satisfy the public (public desire will be greater
where harm occurs over where it does not)
 2.] Satisfy the victim
o Two ways to view punishment:
 1.] Focus on moral culpability of Δ or
 2.] actual harm that occurs
o Wilson v. State (1904): Facts: Δ changed number in upper right hand corner of check. Rule of
commercial matter states that what only matters on the check is determined by the words. Δ was not
guilty of an attempt. Rule: Where the completion of the underlying acts would not result in a
conviction of a crime, the Δ cannot be convicted of an attempt to commit the crime.
 Somebody can still be injured if they don’t look at words and look at the marginal numbers
– this is not written into the commercial rules though
 Even if Δ does everything he intends to do, he is still not committing the crime of forgery
b/c he is not making a material alteration. Therefore, even if he had succeeded, he still
would not have been guilty of the completed crime.
o People v. Paluch (1966): Facts: Δ let Pinkston, an agent to barber’s union into shop. Δ put on
smock and offered chair to Pinkston. Δ had his own barber tools, but had no license. Held Δ is
guilty of attempted barbering. Rule: Where the Δ acts to a close degree of proximity (“dangerous
proximity of success”) to the actual commission of a crime, and has the necessary intent to commit
the crime, he has attempted to commit the crime.
 Two elements to attempt: 1.] intent to commit specific offense; 2.] an act which is a
substantial step towards its commission.
 Intent is present: barbering tools present
 The closer Δ is to scene of crime in terms of time and distance, the more likely he will be
found guilty of attempt
 Also lying in wait – “waiting in vain” typically found substantial step
o People v. Rizzo (1927): Facts: Δ and four men planned to rob Rao of a payroll which he was to carry
to the bank. Δ and four men went to bank where he was supposed to get the money and to various
other buildings. At final building, Δ ran out of car and ran into building. All five arrested. None of
the five saw or discovered payroll men; no person w/ a payroll was at any of the places the men had
stopped and nobody had been pointed out or identified by Rizzo. Rule: Where Δ’s are not presented
w/ the opportunity to commit the crime, they are not guilty of attempt to commit the crime.
 Were the Δ’s lying in wait? – they might have been, but they were pretty clueless (did not
even know who the right payroll clerk was)
 Substantial step: accused must have been caught w/in physical proximity of place where
they were intending to commit the crime
 Even if the police did not show up, there is a good chance this crime would not have
happened (there is no “but for the interference…”)
 Δ’s probably could have been convicted of conspiracy
 Test: “had it not been for the interference, how likely is it that the crime would have been
committed? If not likely, no attempt.
o State v. Mitchell (1902): Facts: Δ, armed w/ loaded revolver, went to window of room where he
believed Warren was sleeping and fired pistol at place where he thought Warren was lying. Rule: If
facts, as Δ believed them to be, would have resulted in a completion of a crime and Δ has committed
the last act necessary to complete the crime, he will be found guilty of attempt.
 Synthesis w/ Wilson: If Δ had killed Warren, he would have been guilty of substantive
offense; had Wilson altered the numerals and defrauded someone, he would not have been
guilty of the crime of forgery
21

o
o
o
o
o
Test: If Δ had accomplished everything he attempted to do, would Δ had been
guilty of the completed crime? If the answer is no, then the court says it is not an
attempt to commit that crime.
 Synthesis w/ Rizzo: in Mitchell, Δ committed very last act he thought was necessary to
commit the crime; in Rizzo, we don’t know if the Δ’s maybe would have turned back
 Court will usually find attempt when you do the last act necessary for a crime
People v. Rojas (1961): Facts: Δ stole $4,5000 worth of electrical conduit; was arrested and taken to
police station. Δ worked w/ police to set-up other Δ who was to pick up the conduit. Truck
containing conduit was placed in location near Δ. One of the Δ’s came to pick up truck and was
arrested the next day. Held Δ was guilty of attempting to receive stolen goods. Rule: Where Δ
intends to receive stolen goods in an unintercepted state and acts towards its commission, he is still
guilty of attempt even if the goods themselves are not stolen.
 Does argument that “had it not been for the interference, the crime would have probably
been committed” work? No. Prior to police interference, Δ’s were not in dangerous
proximity.
 Δ’s are not guilty of completed crime b/c property is already stolen
 Intent: Intent to receive property vs. intent to receive property in unintercepted state -> Δ’s
intended to receive property in un-intercepted condition; had they received the property in
an unintercepted condition, they would have been guilty of the crime
Preddy v. Commonwealth (1946): Facts: Δ failed to sexually penetrate female b/c of impotence.
Rule: Where Δ had capacity to commit the crime and acts towards the commission of the crime, the
Δ is still guilty of attempt even though he may be thwarted by sudden nervous or physical incapacity.
 Δ tries to use same defense as 14 year old boy: even if 14 year old boy succeeds in sexual
intercourse against woman’s will, he would not be convicted of completed crime -> had Δ
had sex against woman’s will, he would have been convicted of completed crime
STANDARD PRINCIPLES IN ATTACKING IMPOSSIBILITY:
 1.] is there a way of mooting the whole issue? [Δ had gone far enough on attempt before
police intercepted the good – he did not in Rojas]
 2.] What is it exactly that Δ intended to do? If the Δ had accomplished precisely that,
then would he/she been guilty of the completed crime.
 A.] If the answer is yes, then there will be an attempt provided the Δ went far
enough.
 B.] If the answer is no, then there is no attempt. Impossibility would be a defense.
 Describe intent in terms of facts & not the law -> Ex: Lamp-post hypothetical (Δ sees
lamppost bearing resemblance to X and shoots at it) – if the Δ intended to kill X (conclude
that he would have been guilty of murder, and thus is guilty of X) ; if the Δ intended to
shoot and put a bullet through particular object he was aiming at (he would not have been
guilty of murder, and thus there is no attempt)
LEGAL VS. FACTUAL IMPOSSIBILITY:
 Preddy - factual impossibility not a defense; intent: sexual intercourse at the will of a
woman
 14 year old boy – law which prevents him from being guilty of rape (legal impossibility)
MPC § 5.01:
 (1) Definition of Attempt. A person is guilty of attempt to commit a crime if, acting w/ the
kind of culpability otherwise required fro commission of the crime, he:
 (a): purposely engages in conduct which would constitute the crime if the attendant
circumstances were as he believes them to be; or [impossibility issue]
o Rojas: if circumstances had been as Δ thought they were, he would have
been clearly convicted of the crime (thus, he is guilty of an attempt)
o Oviedo: Δ engaged in conduct that would have constituted a crime, since
he thought it was actual heroine
22

(b): when causing a particular result is an element of the crime, does or omits to do
anything w/ the purpose of causing or w/ the belief that it will cause such result w/o
further conduct on his part; or
o Mitchell: Δ thinks he has done the last act in order to kill X; guilty for
attempted murder under this subsection
 (c): purposely does or omits to do anything which, under the circumstances as he
believes them to be, is an act or omission constituting a substantial step in a course
of conduct planned to culminate in his commission of the crime.
o Preddy: Δ believes he is capable of committing rape; would be guilty
 (2) Conduct which may be held to be a substantial step “if strongly corroborative of
the actor’s criminal purpose”
 (a) lying in wait
 (b) enticing or seeking to entice contemplated victim to go to place contemplated
for commission
 (c) casing the joint [contrary to what we have thought since all person did was walk
around]
 (d) unlawful entry of a structure, vehicle or enclosure in which it is contemplated
that
 (e) possession of materials to be employed in the commission of a crime, which are
specifically designed for unlawful use and can serve no lawful purpose for the actor
under the circumstances
 (f) possession, collection, or fabrication of materials to be employed in the
commission of the crime at or near the contemplated place of the commission
 (g) soliciting an innocent agent to engage in conduct constituting an element of the
crime
 SOLICITATION: the use of words or other device by which a person is requested, urged, advised,
counseled, tempted, enticed or otherwise incited to commit a crime. The solicitation itself is the actus reus.
o State v. Blechman (1946): Facts: Δ counseled another to set fire to dwelling house. Dwelling was
never set on fire. Held wrongful act which is counseled does not need to be done to constitute
attempt. Rule: Where a statute provides for solicitation as a separate and distinct substantive
offense, one can be convicted of solicitation even when the other substantive offense is not
completed.
 Doesn’t necessarily sit well w/ concept that it is not enough to have an evil mind
 Hypo: Solicit someone to do an act which they do not know is a crime. Δ cannot be guilty
of soliciting but may be found guilty on attempt.
 Difference b/w solicitation and attempt is that in solicitation the Δ uses a guilty agent
whereas w/ attempt the Δ personally participated. If the crime is completed the solicitor is
guilty of the completed offense.
o MPC § 5.02 Criminal Solicitation:
 (1) Definition of Solicitation. A person is guilty of solicitation to commit a crime if w/ the
purpose of promoting or facilitating its commission he commands, encourages or requests
another person to engage in specific conduct which would constitute such crime or an
attempt to commit such crime or which would establish his complicity in its commission or
attempted commission.
 (2) Uncommunicated Solicitation. It is immaterial under Subsection (1) of this Section
that the actor fails to communicate w/ the person he solicits to commit a crime if his conduct
was designed to effect such communication.
 With the inchoate offenses (attempt, conspiracy, solicitation), the MPC:
 Advocates the same punishment that completion of the substantive offense would have
carried
 Allows for mitigation when the conduct charged to constitute the inchoate offense is
inherently unlikely to have resulted in the commission of the crime, or any harm to the
public
23

Provides a person may only be convicted of one inchoate offense in connection w/ the
substantive offense
 ABANDONMENT, DEFENSE, AND MISCELLANEOUS:
o IN GENERAL:
 Renunciation for Attempt, Solicitation, Conspiracy, Substantive Crime
 Common Law: once you have gone far enough to commit the inchoate crime, subsequent
renunciation will never be a defense
 Substantive crimes: If you are involved w/ someone else, and you renounce before
the other person goes ahead, you might be able to effectively renounce if you
communicate your renunciation
 MPC: contains separate renunciation provisions
 Treatment of renunciation for substantive vs. inchoate crimes:
o You have to thwart the commission of substantive offense for inchoate
offense.
o Properly communicate withdrawal from substantive crime to renounce
from substantive crime
o ABANDONMENT OF ATTEMPT:
 Stewart v. State (1969): Facts: Δ approached attendant, brandished a gun and stated he
wanted his money. As attendant was handing over wallet, Δ saw policeman arrive. Δ put
gun in attendant’s drawer but was apprehended.Rule: If Δ has gone far enough to be guilty
of an attempt to commit a crime, he is still guilty regardless of whether he abandoned his
attempt due to the approach of another person or b/c of a change in his attentions due to a
stricken conscience.
 Δ would still be guilty under MPC b/c he is motivated by the circumstances
 MPC 5.01 (4) Criminal Attempt – Renunciation of Criminal Purpose:
 [some states follow MPC’s rule of voluntary renunciation]
 When the actor’s conduct would otherwise constitute an attempt under
Subsection (1)(b) or (1)(c) of the Section, it is an affirmative defense that he
abandoned his effort to commit the crime or otherwise prevented its commission,
under circumstances manifesting a complete and voluntary renunciation of his
criminal purpose. The establishment of such defense does not, however, affect the
liability of an accomplice who did not join in such abandonment or prevention.
 Within the meaning of this Article, renunciation of criminal purpose is not
voluntary if it is motivated, in whole or in part, by circumstances, not present or
apparent at the inception of the actor’s course of conduct, which increase the
probability of detection or apprehension or which make more difficult the
accomplishment of the criminal purpose. Renunciation is not complete if it is
motivated by a decision to postpone the criminal conduct until a more
advantageous time or to transfer the criminal effort to another but similar objective
or victim.
 Should involuntary renunciation be a defense? – No; this is not the result you would want
based on policy reasons (deterrence objective)
 Retribution
 Incapacitation (protecting the public)
 Rehabilitation
 Modern Rule (goal): If we say to the Δ even if you have gotten far enough you still can
save yourself, Δ has the incentive to withdraw. Incentive argument is based on the fact that
criminals know about the law – did the person have time to act on it and think it through?
Hope of MPC defense is to impel a certain number of Δ’s who have already completed
attempt to pull out.
 Punishment for crime is typically more severe than that of attempt -> isn’t that
good enough incentive for Δ to pull out
24
o
o
o
o
 There is no defense if Δ commits the substantive crime
ABANDONMENT OF SOLICITATION:
 State v. Peterson (1942): Facts: Δ had agreement with accomplice to set fire to house.
Accomplice set fire. Δ told accomplice not to go to the house. Furthermore tried to
persuade accomplice to leave premises before he set fire. Δ was in hospital at the time. Δ’s
affirmative defense of voluntary abandonment sufficient to reverse conviction of arson.
Rule: Where Δ does everything in his power to thwart his accomplice’s actions and
voluntarily abandons their plan for arson, he will not be convicted of the substantive crime
of arson. [still guilty under MPC]
 Δ’s guilt is through accomplice assuming she asking him to do it.
 It is possible Peterson could have been charged w/ attempted arson or conspiracy to
commit arson but it would depend on if, at the time of renunciation, she had gone
far enough to be convicted of the offenses.
 MPC 5.02 (3) Renunciation of Criminal Purpose. It is an affirmative defense that the
actor, after soliciting another person to commit a crime, persuaded him not to do so or
otherwise prevented the commission of the crime, under circumstances manifesting a
complete and voluntary renunciation of his criminal purpose.
RENUNCIATION OF CRIMINAL PURPOSE – CONSPIRACY:
 § 5.03 (6): It is an affirmative defense that the actor, after conspiring to commit a crime,
thwarted the success of the conspiracy, under circumstances manifesting a complete and
voluntary renunciation of his criminal purpose.
RENUNCIATION OF SUBSTANTIVE CRIME:
 MPC § 2.06 6(c): Unless otherwise provided by the Code or by the law defining the
offense, a person is not an accomplice in an offense committed by another person if:
 (c) he terminates his complicity prior to the commission of the offense and
o i. wholly deprives it of effectiveness in the commission of the offense; or
o ii. Gives timely warning to the law enforcement authorities or otherwise
makes proper effort to prevent the commission of the offense
MERGER-COMMON LAW: once crime A has merged into crime B, not permissible to convict
you of both.
 **in some jurisdictions, this means you can’t be convicted of both crimes or A alone (only
charge is B)
 Common Law approach:
 1.] Solicitation merges into everything
 2.] Attempt and conspiracy do not merge into each other
 3.] attempt does merge into substantive crime
 4.] Conspiracy and the substantive offense do not merge into one another
 5.] Conspiracy never merges
 MPC approach: § 5.05 (3)
 1.] can’t be convicted of more than one inchoate crime in connection w/ the target
crime
 2.] all inchoate crimes merge into their requisite substantive offenses [cannot be
convicted of conspiracy to commit murder and murder]
PARTIES TO CRIME:
 When there are two or people involved, it becomes necessary to decide who is guilty of what crime.
 ***You are guilty of a crime if either you perpetrate it yourself or you help or encourage somebody else to
perpetrate it; depending on the jurisdiction, you are either an accomplice, a perpetrator if you did it yourself,
or an “aider and abettor”
 Types of accessories:
o Accessory at the fact: aided the principal in the commission of the crime
o Accessory before the fact: encouraged someone to commit crime
25
o Accessory after the fact: protected principal from the authorities
 ACCESSORY AFTER THE FACT:
o Accorded special treatment -> in some states you still cannot be an accessory after the fact to a
misdemeanor (only to a felony)
o State v. Williams (1948): Facts: Hicks shot Hooker, then fled in automobile owned by him, driven
by Watson. Δ’s Williams and Badgett were also in car. Δ’s Hicks, Watson, and Williams tried to
dissuade officer from arresting Hicks by falsely representing Hicks had been elsewhere that day. Δ
acquitted of being accessory after the fact for felony of murder. Rule: A person cannot be convicted
as an accessory after the fact to a murder b/c he aided the murderer to escape, when the aid was
rendered after the mortal wound was given, but before death ensued.
 Court’s rule: In order to be convicted as an accessory after the fact, the prosecution must
prove (1) the principal felon committed the crime; (2) the accused knew that the principal
committed the felony; and (3) that the accused offered some kind of assistance to the felon.
 Possible rule (Legomsky): If she knows that death is reasonably foreseeable, she should be
guilty of accessory after the fact to the substantive crime
 Court noted that Δ could possibly have been convicted as an accessory after the fact to
assault w/ intent to kill
o Law v. Commonwealth (1881): Facts: Δ, 11 years old, aided and abetted Law in the crime of rape.
Common law rule holds that person under age of 14 cannot be convicted of rape or attempted rape.
Held principal in second degree (“aider and abettor”) is punishable as if he was principal in first
degree. Rule: Although the Δ may be unable to commit the underlying substantive crime of rape,
this is due to his impotency and not lack of discretion, thus enabling him to be convicted as a
principal regardless of this common law rule.
 MPC § 2.06 (5): A person who is legally incapable of committing a particular offense
himself may be guilty thereof if it is committed by the conduct of another person for which
he is legally accountable, unless such liability is inconsistent w/ the purpose of the
provision establishing his incapacity. -> is he legally accountable?
 II. A person is legally accountable for the conduct of another person when:
o (a) acting w/ the kind of culpability that is sufficient for the commission of
the offense, he causes an innocent or irresponsible person to engage in
such conduct; or
o (b) he is made accountable for the conduct of such other person by the
Code or by the law defining the offense; or
o (c) he is an accomplice of such other person in the commission of the
offense
o Richardson (1785): Facts: Two prisoners accosted Π by asking him what he had in his pocket.
After Π stated he had hardly any money, one of the prisoners stated “if he really has no more do not
take that” & turned around w/ intention to go away. Other prisoner stopped and robbed him. Π
could not identify which money used the expression and which one robbed him. Held both prisoners
acquitted of highway robbery. Rule: Where an accomplice renounces his intent to commit the crime
before the crime is committed, yet he cannot be properly distinguished from the accomplice who
committed the substantive act, both will be acquitted of the act.
 MPC § 2.06 (6) …a person is not an accomplice in an offense committed by a another
person if
 (c) he terminates his complicity prior to the commission of the offense and
o i. wholly deprives it of effectiveness in the commission of the offense; or
o ii. Gives timely warning to the law enforcement authorities or otherwise
makes proper effort to prevent the commission of the offense
 Δ could be charged for conspiracy: there is an overt act and an agreement to commit the
crime -> in jurisdiction w/ MPC rules, renunciation is not a defense (success of conspiracy
must be thwarted)
 This is not even a voluntary renunciation: “motivated by circumstances not
present/apparent at inception of actor’s course of conduct which increase probability of
26

apprehension or detection or which make more difficult the accomplishment of the criminal
purpose.”
Attempted robbery:
 Common Law: he is guilty of attempt; nothing that happens later will wipe out
attempt
 MPC: even for attempt renunciation provision to work, you have to thwart the
commission of the crime; at the same time, you have to technically meet the
voluntary requirement
INTERNATIONAL CRIMINAL LAW: elements of international & criminal law
I. International Law: Law that determines how states must act to resolve conflicts between and among other states.
(legal effect varies depending on if you are in the international plane or the domestic plane)
 Transnational Crimes: garden variety crimes defined by U.S., domestic, municipal law; particular conduct
typically crosses international borders (drug trafficking, etc.)
 International Crimes: binding to all people in the world
o Background:
 International Criminal Tribunal: established post-Nuremberg
 Cold War: impossible for countries to agree on doing anything significant
 Post Cold-War: international collaboration on solving the problem
 1998: majority of nations got together in Rome to establish treaty for world’s first
permanent, generic, International Criminal Court (U.S. not a part)
 Expansion of International Law:
o 1.] governs relations b/w states & associations of states
o 2.] recognizes duties (rights) created to individuals (not just states)
 International Law vs. way the law is enforced w/in the country: No defense to say “some component from
our country is preventing us from enforcing it.”
 Legal Status of International Law in U.S.: If brought in a US court, must look at US domestic law to see
which law is to be applied
o 1.] if it specifies US law then it will be used
o 2.] if it specifies international law, then it will be used
o 3.] if it specifies French law, then it will be applied (adjust accordingly)
 Hierarchy of U.S. Federal & State Law:
o Federal:
 1.] US Constitution
 2.] US Statutes
 3.] Treaties
 4.] U.S. Regulations
 5.] US common law
o State:
 1.] State Constitution
 2.] State Statutes
 3.] State Regulation
 4.] Municipal Ordinance
 5.] State common law
 Sources of International Law:
o 1.] Treaties – agreement b/w states or associations of states that parties intend to be governed by
international law
 Protocol to another treaty: amendment
 Supreme Court has held that a US treaty is on the same plane as a US statute and later law
in time trumps earlier treaties
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
o
o
Art. II, § II, cl II: President has power by and w/ consent of Senate to make treaties
provided 2/3rds of Senators presiding concur
 Vienna Convention on Law of Treaties: binding on U.S. -> lays out basic rules for
interpreting treaties
 Basic rule: when treaty is contested, go by ordinary meaning of terms in their
context and in light of the treaty’s object and purpose
 Working Papers: like legislative history; allowed to use papers only for:
o 1.] Confirm the text
o 2.] Resolve language that is ambiguous or obscure
o 3.] avoid results that are manifestly absurd or unreasonable
o 4.] cannot use to contradict clear language of the text
2.] Customary International Law: Two requirements to be customary international law –
 1.] General & consistent practices of states
 2.] Practice arises out of a sense of legal obligation
 Jus cogens: pre-emptory customary international law -> these even beat a treaty in
importance (tough to tell whether a norm rises to this level)
3.] General Principles: common principles which individual countries follow b/c they think it is a
good idea
II. Nuremberg Tribunal:
 Historical Background:
o Post WWII: Allies tried unsuccessfully to retain German war criminals
 Germans not enthusiastic about it; sense of national pride -> most countries don’t want
other countries to prosecute their own people
o Set up a multi-national criminal tribunal in Nuremberg
 Why not let each country prosecute criminals themselves?
 1.] Visibility: important for all Allies to know what was going to happen to them
 2.] Deterrence: message they are sending to the rest of the world -> you could
spend the rest of your life behind bars
o Cons of tribunal: complications in setting it up.
 Purpose:
o 1.] deterrence
o 2.] retribution
o 3.] making a statement
 Scope of the IMT (Nuremberg) – Article 6 states only war criminals of the Axis parties can be tried
 London Agreement: [governments of Great Britain, Northern Ireland, France, and USSR] -> agreement
provided for establishment of International Military Tribunal
 Source of Allied powers right to set up tribunal:
o Universal Jurisdiction: every country in the world has the power to try any individual in the world
of an international crime -> all four might as well join together and do it
o Should not be prevented from prosecuting people just because there are other people who are not
being apprehended and tried
 Types of crimes Δ’s charged w/:
o 1.] Common Plan/Conspiracy:
 A.] abrogation of Treaty of Versailles and lifting of restrictions upon military rearmament &
activity of Germany
 B.] acquisition of territories lost by Germany as a result of WWI, and other territories in
Europe asserted to be principally occupied by so called “racial Germans”
o 2.] Crimes against peace – wars of aggression:
 Seizure of Austria/Czech; war of aggression against Poland
o 3.] War Crimes
o 4.] Crimes Against Humanity: murder & prosecution of individual’s on political, racial, religious
grounds
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 Arguments made in IMT (Nuremberg):
o Defense’s argument: there was no crime for aggressive war at the time: “no sovereign power had
made aggressive war a crime at the time the alleged criminal acts were committed.” [no crime w/o
pre-existing law]
o Court’s response: the Δ’s knew they were doing something wrong; for them to say nothing was
unjust does not fly
 Such major atrocities were committed that they couldn’t have believed that they weren’t
engaging in criminal activities
o Defense’s next argument: ok, well, this might be a crime, but we didn’t know this was the sentence
you were going to impose
 Criticism’s of Nuremberg: Victor’s Justice
o 1.] no charges against Allied soldiers & Commanders
o 2.] victor’s are the ones who created and are staffing the court
 Post WWII IMT created in Far East
III. International Military Tribunal (Yugoslavia, 1993) -> next series of international tribunals after Nuremberg
 Tried Croats, Muslims, & Serbs; jurisdiction of events only in Yugoslavia
 Goals:
o 1.] general deterrence
o 2.] punishment
o 3.] compensation & rehabilitation
o 4.] restoration of public order
o 5.] reinvigoration of the International & National Rule of Law
o 6.] Preservation of Collective Memory
o 7.] National Reconciliation
 IMT – Yugoslavia compared to Nuremberg
o 1.] both set up for war crimes
o 2.] each wanted to establish in ad-hoc fashion: crimes arose out of one particular conflict
 Neither are a generic court which try crimes all around the world
o 3.] “no peace w/o justice” – if major war criminals can escape responsibility for deeds, nobody who
was targeted w/ these events can put them behind them
 Yugoslavia: had trouble capturing bigger war criminals -> Serbia was not a vanquished
(defeated) state like Germany was
 Trying to get witnesses to testify against war criminals you did catch is tough -> witnesses
afraid to testify; loyalists were neighbors
 Problems stem from absence of a military victory
 No documentation of crimes, so you need witnesses
o 4.] Different set of goals: sends the message that you can get away w/ anything you want to get away
w/ if you don’t punish people
 Criticism in Yugoslavia: only going after the “small fry”
 Selectiveness in the way we are only going after people involved in the Yugoslavia conflict
-> just b/c it is selective does not mean it is illegitimate
 Historical Record: prosecution & defense will put forth evidence most favorable in their light; information
is not necessarily balanced
 This trial essentially cuts the losses instead of looking at how much good can be accomplished
 Tadic: court’s first final judgment; first judgment in almost half a century of any international tribunal
IV. International Criminal Tribunal - Rwanda (1994)
 Only had jurisdiction over offenses in ‘94
 Jurisdiction over anywhere in the world where crimes were committed by Rwanda nationals
 125,000 suspects – this problematic since there are many being tried in tiny Rwandan courts in mass trials
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STATUTORY INTERPRETATION:
 Where to look for legislative purpose:
o 1.] committee reports
o 2.] figure it out by just looking at text of statute (other provisions in statute; maybe there is another
statute)
o 3.] look at judicial precedent
 H.L.A. Hart: words do not have specific meaning; they are open to interpretation
o Language is inherently limited
o Cannot anticipate every single fact situation
 Principles:
o 1.] look to what statute was intended to do -> enacted by legislature which is superior to judicial
body
o 2.] If a statute contains ambiguity, court prefers an interpretation which avoids a constitutional issue
o 3.] Penal statutes are construed strictly; court will err on finding the Δ not guilty
o Reason: there are consequences to a criminal conviction – loss of civil disabilities & social stigma
associated w/ crimes
o “proof beyond a reasonable doubt”
o 4.] Ejusdem generis: If a statute contains a list of specific things, followed by a general instruction,
one should interpret the general part as only including the same kinds of things that are included in
the list.
o 5.] Administrative Agency interpretation: extremely important since agency has expertise and is
immersed in the statutory scheme
 Legislative Process:
o 1.] bill introduced by House or Senate
o 2.] referred to a Committee – which might be delegated to some sub-committee (and testify)
o 3.] Once committee is through w/ the bill they take a vote to approve the bill
o 4.] Report is circulated to members of a particular chamber
o 5.] Debate in House or Floor of Senate and people will vote
o 6.] If there are two versions of the bill, there will be a Conference Committee and agree on a
common bill – sent back to each House, and they will both vote on it
o 7.] Bill passed to President to sign or veto it
 PLAIN MEANING APPROACH:
o Under this approach, it is easier for the public to predict what the results are going to be
o Chung Fook v. White: (civil statute – construed broadly) Rule: The statute should be interpreted as
it is, no matter if it results in a cruel and inhuman result. (in this case, discrimination against a
native born citizen)
o Caminetti v. United States: Rule: If the language is plain, and does not lead to absurd or wholly
impracticable consequences, it is the sole evidence of the ultimate legislative intent.
 Δ induced transportation of woman to have an affair w/ him. Legislative intent was
concerned w/ interstate transportation of women for purposes of commercial prostitution.
 QUALIFIED PLAIN MEANING APPROACH – GOLDEN RULE: look at the statute together and give
words their ordinary meaning. If the literal meaning produces absurdity or inconsistency give the words a
different meaning
o Regina v. Ojibway: absurd that a horse w/ a pillow is a “bird;” if there was no pillow, killing would
not be covered under Small Birds Act
 Issue probably never occurred to legislators
 General overall purpose (to protect birds or wildlife) vs. specific intent on issue (for which
it can’t be used)
o Whiteley v. Chappell: Holding: Δ did not commit an offense by purporting to be a dead person and
voting in his name. Rule: Qualified Plain-meaning rule -> look to see whether result is absurd or
not.
o U.S. v. Kirby: (criminal – construed narrowly) Rule: General terms should be limited in their
application as not to lead to injustice, oppression, or an absurd consequence.
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

Use of the golden rule – it would be absurd to arrest sheriff for arresting mail carrier
H.L.A. Hart: legislators never thought about competing policy interests – mail getting
through vs. someone suspected of committing a crime being arrested
 Use of social purpose in this rule would lead to conflicting purposes
o Schwegmann Bros. v. Calvert Distiller’s Corp.: Rule: Only if a statute is inescapably ambiguous
can you resort to legislative history, and at that point, the Committee reports should be the stopping
point.
 *Accessibility and Equality Argument: Modifying statutory provisions involving having
to get a hold of the legislative history (materials) – they are hard to get a hold of for
everyone
 *Legislator’s comments are self serving
 SOCIAL PURPOSE APPROACH: consider the purpose and try to advance that broad legislative purpose
(language of statute & legislative history can support different purposes)
o judges have more leeway when using social purpose rule
o Problem: how narrowly or broadly do you interpret the purpose?
o Holy Trinity Church v. U.S.: (criminal – construed narrowly) Rule: When interpreting a statute the
court must look to the whole legislation or of circumstances surrounding its enactment – i.e., looking
to the evil which it is designed to remedy and contemporaneous events.
 Court ruled this way even though the statute had enumerated exceptions
 Court looks to prior court decisions; petitions and testimonies from committees of Congress
 Intention of state: limit common laborers
o Silverman v. Rogers: Rule: When analyzing a statute where the wording can be interpreted in two
different ways, look to legislative history (amendments to the provision; committee reports) to solve
the dispute.
 Court consults legislative history: notices language of the report which suggests that under
the old version, Congress was unhappy w/ how liberally waivers were being granted -> it
would be easier to obtain waivers if Secretary of State was not allowed to review
 Congressional acquiescence: Statute has been on the books a long time. Congress has not
changed it, knowing courts have interpreted it this way.
TYPES OF LEGAL REASONING:
 A Fortiori Argument: comparing to past case; my case is different, but my case is even stronger
 Reductio ad absurdum: if you hold a, then you will have to hold b in the future. B, though, is an absurd
proposition (Decina)
 Precedent: 1.] court can overrule precedent; 2.] hold statute unconstitutional; 3.] follow the rule but make it
narrow as possible; 4.] application of common sense
Vogel: is this a malum in se or malum prohibitum offense?
Is there a big difference b/w knowledge and intent? Do they just fall under mens rea?
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