CULPABILITY
ACTUS REUS- The Criminal Act
 The act must be voluntary
 Must be combined with mens rea to have culpability
OMISSIONS- When is failure to act a crime?
 Failure to act when you have a legal (not just a moral) duty to act becomes the
actus reus
 4 common situations when there is a legal duty to act:
o statutory duty
o contractual duty
o status relationship imposes duty (like parent/child, student/teacher)
o Δ voluntarily assumed the duty to care for the helpless party and
secluded that party thus preventing others from helping
MENS REA- Culpable Mental States
MPC states 4 culpable mental states:
 Purposeful- Δ intentionally committed actus reus.
 Knowing- Δ knew to a substantial certainty his actions would result in harm.
 Recklessness- Δ was aware of substantial risk of harm but acted w/o regard to
that risk
 Negligence- A reasonable person in Δ’s position would be aware of the
substantial risk in harm, but Δ wasn’t.
MISTAKE OF FACT
 The Δ mistakes a material fact, believing that the circumstance is different from
what it actually is.
 When a mistake of fact negates the required mens rea, it is a defense.
 The mistake has to be reasonable.
 Mistake of fact is only a defense to specific intent crimes, where the Δ’s mistake
prevents him from having the statutorily required intent
 MPC- If mistake of fact negates the required mens rea, it’s a defense.
STRICT LIABILITY
 In strict liability crimes, the Δ may be held liable in the absence of mens rea.
 Mistake of fact is not a defense to a strict liability crime.
 Elements of strict liability crimes
o regulatory or public welfare offense (meaning that the purpose of
punishing the offense in the absence of mens rea is b/c it is better for the
public to do so)
o assumption of risk inherent in some activities
o relatively light punishment
o mens rea would be difficult/impossible to prove
o balance of risk of punishing mens rea-less Δ w/ the potential of harm to
others

MPC imposes strict liability for regulatory/public welfare offenses, but it calls
them ‘violations.’
MISTAKE OF LAW
 Under the common law, mistake of law is not a defense.
 Tax law has exceptions written into the statutes requiring wilfulness
 Possible exceptions (although not good in all jurisdictions)
o Δ was misled by an official authority
o Δ exercised due diligence to ascertain the law
o Δ has no fair opportunity to obey the law
 MPC- If mistake of law negates the required mens rea, it’s a defense.
PROPORTIONALITY
 Punishment must be proportionate to the seriousness of the offense
 However, the 8th amendment (cruel and unusual punishment) doesn’t forbid
disproportionate punishment unless it is GROSSLY disproportionate to the crime
 MPC says that offenders should be safeguarded against excessive,
disproportionate or arbitrary punishment
LEGALITY
 raises principles of unconstitutional vagueness
 if there is a statute that is so vague in how it is drafted and worded that it doesn’t
put the Δ on notice that his conduct is prohibited by law, then that is a defense
 it violates due process to hold someone liable for committing a crime when the
statute is unclear about what it prohibits- Δ must have due notice that his
conduct is illegal
 doesn’t come up too often
RAPE
ACTUS REUS
 Traditional definition of rape= The carnal knowledge of a woman forcibly and
against her will
 MPC 213.1- Man who has sex w/ female not his wife is guilty of rape if:
o he compels her to submit by force or by threat of imminent death, serious
bodily injury, extreme pain or kidnapping, to be inflicted on anyone; or
o he has impaired her power to control her conduct by giving her
intoxicants w/o her knowledge or using other means to prevent
resistance; or
o the female is unconscious; or
o the female is under 10
o sexual intercourse= penetration, includes anal
o MPC focuses on behavior of man, not woman
 Under common law, only men could rape only women, and husbands couldn’t
rape their wives
 In some jurisdictions
o rape is gender-neutral
o
o
the woman must resist- varies from ‘utmost resistance’ to ‘reasonable
resistance’
lack of express consent is enough to establish rape
MENS REA
 No general rule on mens rea
 In some jurisdictions, mistake of fact may be a defense
 Look at statutory construction
HOMICIDE
MPC § 210- A person is guilty of criminal homicide if he purposely, knowingly
recklessly or negligently causes the death of another human being.
INTENTIONAL KILLINGS
Murder= causing the death of another person (actus reus) with malice aforethought
(mens rea) without legal justification or excuse
 Malice aforethought
o express if there is evidence the Δ actually intended to kill
o implied if
 Δ knew or should have known death was the likely result of his
conduct or his conduct reflects a depraved indifference to human
life
 he was committing a violent felony when the killing occurred
 he was grossly reckless
 Murder under MPC= criminal homicide committed purposely or knowingly or
under circumstances manifesting extreme indifference to human life.
Voluntary Manslaughter= A criminal homicide commited w/o malice aforethought.
 Malice aforethought would exist except for the presence of certain extenuating
circumstances, like heat of passion or legally adequate provocation.
MPC abandons the distinction between voluntary and involuntary manslaughter, and
instead says that the offense of murder can be reduced to manslaughter if the offense
was committed ‘under the influence of extreme mental or emotional disturbance for
which there is a reasonable explanation or excuse.’
UNINTENDED KILLINGS
Involuntary manslaughter= Criminal homicide committed w/o malice aforethought.
Δ committed reckless or wanton conduct resulting in death
 Conduct must be more extreme, more reckless than simple negligence, more
even than gross negligence
 Standard is both subjective and objective
o def must be aware of facts that created grave risk (subj)
o ordinary man under same circumstance would be aware of grave risk
(obj)
Felony murder= Δ is criminally responsible for a killing committed during an inherently
dangerous felony whether or not he intended to kill (strict liability).
 Malice is implied from the intent to commit the other felony.
 Merger doctrine= The felony must be independent of any acts which were
necessarily part of the homicide.
o If harming the victim is the object of the underlying felony, the felony
murder rule can’t apply in that case.
o Instead the homicide ‘merges’ with the felony.
 Δ may be held vicariously responsible for any killing attributable to the
intentional acts of his accomplices committed with conscious disregard for life.
 Two theories of vicarious liability
o Agency= one of the felons must pull the trigger for FMR to apply (all the
co-felons are agents of one another). This is the prevailing view.
o Proximate cause= FMR can apply to any death proximately resulting
from the felony
 MPC abolishes felony murder on the grounds that it can produce too wide a
disparity between the Δ’s actual culpability and the culpability required for
murder
THE DEATH PENALTY
 DP can’t be imposed under procedure that creates substantial risk that it will be
applied in an ‘arbitrary and capricious manner’ under 8th amendment. Furman v.
Georgia. This case made unconstitutional all state DP schemes.
 Under Gregg v. Georgia, the DP does not violate the 8th amendment if
o it is not ‘grossly disproportionate’ to the crime, which the Court defined
as ‘offending evolving standards of justice’
o it does not involve the unnecessary and wanton infliction of pain
o it must not violate the ‘arbitrary and capricious manner’ requirement.
 General rules about DP
o a mandatory death penalty is unconstitutional- no criminal offense can
require the imposition of the DP.
o the DP may not be imposed by a jury w/o criteria to guide the exercise of
discretion.
o It is unconstitutional to limit the range of mitigating factors that the Δ can
introduce as evidence in favor of a lighter sentence.
 Most states have statutes listing aggravating circumstances under which the DP
may be imposed for murder.
 MPC- DP can be imposed for 1st degree murder if
o aggravating circumstances are present
o mitigating circumstances are not present
o Δ was over 18 at time of offense
o Δ does not have a mental or physical conditon that calls for leniency
o evidence forecloses all doubt as to Δ’s guilt
o DP should be imposed in separate sentencing hearing by same jury
 Aggravating circumstances
o murder committed by convict while in prison
o Δ previously convicted of another murder or of a violent felony

o Δ committed multiple murders at same time
o Δ knowingly created great risk of death to many persons
o Δ committed murder during the commission of a felony
o Δ committed murder for money
o Δ committed murder to avoid arrest or to escape from custody
o murder was especially heinous
Mitigating circumstances
o Δ has no significant history of prior criminal activity
o murder committed while Δ was under influence of extreme mental or
emotional disturbance
o victim was a participant in Δ’s homicidal conduct or consented to
homicidal act
o Δ believed there was a moral justification for the murder
o Δ was accomplice and his participation was relatively minor
o Δ acted under duress
o Δ’s ability to appreciate wrongfulness of his act or to conform his conduct
was impaired by intoxication
o youth of Δ at time of murder
THE SIGNIFICANCE OF RESULTING HARM
CAUSATION
 Δ’s conduct must be proximate (aka legal) cause of injury. Not enough if Δ’s
conduct is the but-for cause.
o Proximate cause= foreseeability + direct chain of causation
o If there is a superseding action, then the chain of causation is broken
 Δ’s conduct does not have to be the sole and exclusive cause.
 If Δ’s action was an indispensable link, that supports a finding of causation.
 MPC dispenses with proximate cause and instead focuses on whether the Δ
meant to cause the harm.
 Intervening actions- if another act supersedes the Δ’s act in the chain of
causation, Δ’s act is not proximate cause.
ATTEMPT
 mens rea= specific intent- you must show that the actor had the subjective intent
to commit the offense
 actus reus= substantial step toward the commission of the crime (Don’t confuse
preparation w/ attempt. Good luck with that.)
 Renunciation- if Δ renounces crime after taking substantial step, and had mens
rea at the time of taking the substantial step, then he’s guilty of attempt.
 Impossibility- Legal impossibility is usually a defense.
o legal impossibility= A crime is attempted, but the circumstance is such
that in fact it would be legally impossible for that crime to be committed.
o factual impossibility= A crime is attempted, but it would in fact have
been impossible to commit. Never a defense.
 MPC- 2 types of attempt
o
o
o
Δ completed all planned behavior, but failed to accomplish the object
crime
Δ has not yet completed all planned behavior, but intends to
Δ must act w/ culpability required for the commission of the crime
GROUP CRIMINALITY
ACCESSORY LIABILITY
 An accessory is liable for the crime that he aided and abetted
 Accessory= aiding and abetting + shared purpose
 Mens rea of shared purpose to further the commit crime
 Actus reus of committing an overt act to aid in the commission of crime
 An accessory may be held vicariously liable for any crime committed ‘in
furtherance’ of the planned crime
 No agreement between principal actor and accessory required
 Choate offense- objective crime must be achieved.
CORPORATE LIABILITY
 Corp can be held liable for the actions of its agents acting w/in the scope of their
employment
o agent is acting in the scope of his employment inasmuch as he had the
authority to act for the corporation w/ respect to the business regarding
which the crime was committed
o agent is acting in furtherance of corp interests/ corp benefits from crime
 Corporate officers can be held liable when they had responsibility/authority to
prevent crime and failed to do so.
CONSPIRACY
 agreement, express or implied, between 2 or more people to commit a crime
o must have intent to achieve the object of the conspiracy- individual might
not know all the details, but must have knowledge of the general purpose
and objective of the conspiracy and agree to that
o conspirator need not know all the details of the conspiracy- need not have
agreed w/ every member of the conspiracy
 most jurisdictions require an overt act in furtherance of the conspiracy to prove
that there really was an intent to achieve the object of the conspiracy and not just
thoughts or words
o only one member of the conspiracy must make the overt act, not each
member
o it may be a non-criminal act as long as it is in furtherance of the
conspiracy
 Pinkerton liability- Conspirators are liable for all reasonably foreseeable acts
done in furtherance of a mutual purpose established by the conspiracy even if
they didn’t know about those acts or didn’t intend that those acts be
committed



abandonment of conspiracy is a defense to crimes committed in furtherance of
conspiracy after Δ has withdrawn from the conspiracy. Δ must take affirmative
action to disassociate himself from conspiracy
Inchoate offense- Objective crime doesn’t have to be achieved. Agreement is
actus reus and overt act is required but can be committed by any conspirator.
MPC- requires that person who entered into agreement had the purpose to
commit the crimes there were committed, or that there is a much more direct link
between the purpose of the person who entered into the agreement and the
crimes that were committed
o Knowledge + intent to promote crimes of others= agreement
o Takes unilateral view of conspiracy that if one party thinks there’s an
agreement, he can be convicted of conspiracy.
Wharton rule= If it is impossible under any circumstance to commit the offense w/o
cooperative action, the agreement between the same parties to commit the offense is
not an indictable conspiracy.
DEFENSES
JUSTIFICATIONS
Self-Defense
 Deadly force is justified when the Δ reasonably believed that the use of deadly
force was needed to defend against the imminent use of deadly force against the
Δ or another party.
o use of deadly force is not justified against the use of non-deadly force
o use of deadly force is not justified against non-imminent deadly force
o according to statutes, use of deadly force may be justified to prevent the
commission of certain felonies
o note that if the Δ reasonably believes the aggressor is using deadly force,
even if the aggressor isn’t, Δ is justified in using deadly force
 MPC standard is more subjective- requires that Δ subjectively believed deadly
force was needed, not reasonably believed, and that the use of deadly force was
‘immediately necessary’ rather than that deadly harm was imminent
 Duty to retreat- if deadly force can be avoided, you have a duty to avoid it. If
you fail to do so, you might be deprived of self-defense justification
 If Δ is initial agressor, generally self-defense is not available to him
 Battered woman’s syndrome- Set of common characteristics of women faced w/
repeated abuse. Learned helplessness. In most jurisdictions, evidence of BWS
may be introduced to show that the Δ ‘reasonably believed’ deadly force was
necessary.
Defense of Property
 MPC- strictly limits the use of deadly force against an intruder in the home, but
allows it when the use of force other than deadly force would expose the actor to
substantial danger of serious bodily harm
 Under common law, use of deadly force not justified to protect property unless
it’s occupied property and occupant reasonably fears bodily harm.
 This varies from jurisdiction to jurisdiction based on statute.
Necessity- Choice of Evils
 MPC- Δ must show
o faced w/ choice of evils and chose lesser evil
o acted to prevent imminent harm
o reasonably anticipated a direct causal relationship between their conduct
and the harm to be averted
o no legal alternative
o if the crime is one where recklessness or negligence is enough to establish
culpability, and Δ was reckless/negligent, then he can’t invoke necessity
EXCUSES
Duress
 MPC
o a person of reasonable firmness would yield to the threat
o threatened person doesn’t have to be the accused- a threat to a near
relative can support a duress defense
o if actor recklessly placed himself in a situation where it was probably
he’d be subjected to duress, he can’t invoke duress
Intoxication
 If the offense requires a specific intent, evidence of intoxication can be introduced
to show if intoxication negated ability to form intent
 If offense is general intent crime, intoxication not a defense
 MPC
o intoxication is not a defense unless it negates an element of the offense
(e.g. negates required mens rea, like shared purpose and intent in
accessory liability, or conspiracy, or premeditation)
o if recklessness establishes an element of the offense, if actor is unaware of
risk due to voluntary intoxication, his unawareness is immaterial (e.g.
recklessness might establish mens rea of implied malice in a murder case)
o Intoxication doesn’t constitute mental disease
o non-voluntary intoxication (including addiction maybe) is an affirmative
defense if Δ due to intoxication lacks ability to appreciate the wrongness
of his act
Insanity
2 prong test for insanity:
 Cognitive prong- Did Δ know what he was doing- appreciate the wrongfulness
of the act?
o generally this is legal wrongfulness- if Δ knows the act is illegal but
believes he’s morally right to do it, then it’s not a defense
 Volitional prong- Was Δ able to resist doing the act?
o e.g. if ‘god’ is telling the Δ to do something, he might not be able to stop
himself from doing it, even though he knows that it is legally wrong
 In most jurisdictions, if either one of these is met, the Δ isn’t liable. Either one is
sufficient to negate moral culpability
 It is incumbent upon the Δ to introduce some evidence that he is suffering of a
mental disease or defect (in fed system, it has to be evidence of a severe disease)
negating the cog/vol prongs or whatever is required in that juris. Then Π will
have burden of disproving insanity at time of offense or showing that the
insanity didn’t negate the cog/vol prongs. Π must disprove it beyond a
reasonable doubt.
MPC § 4.01- Δ can be found not guilty b/c of insanity if
 must show that Δ suffered from mental illness at the time of act- it is NOT
enough to show that Δ has a mental illness, he must have been legally insane at
the time of the offense. This means that...
 Δ lacked the substantial capacity to appreciate the criminality or wrongfulness of
his action at the time of the offense (cognitive prong) or doesn’t have ability to
conform conduct to the law (volitional prong)
 a sociopathic personality is NOT enough to constitute legal insanity
 must satisfy either volition or cognitive prong- either/or, both aren’t necessary