JUST PUNISHMENT
I. The Purposes and Limits of Punishment
A. Justifications of punishment
1. Retributivism ~ punishment is justified on the grounds that wrongdoing merits punishment. a.
A person who does wrong should suffer in proportion to his wrongdoing. b.
Theory is backwards looking. c.
Punishment is justified solely on the voluntariness of the crime. d.
Characterization of offender ~ based on the individual’s responsibility. e.
Contractual analysis - there exists a social contract that an individual gets something from society, criminals have broken this contract. f.
Problems with retribution:
0000 i.
Lacking fair consideration because we don’t all start with equitable benefits. ii . Emotional values at stake- people who are suffering exclusion don’t have an investment in society. iii.
The rest of society is not holding up their end of the contract because they are not protecting these groups. iv. Cabarga case:
Alex Cabarga was brought up by Tree Frog
Johnson. He learned a life of abuse and molestation since the age of 9. At age 18, Cabarga and Tree
Frog were found guilty of kidnapping 2 ½ yr. old,
Tara Burke, and 11-year old Mac Lin Nguyen.
Johnson was charged with 121 counts of kidnapping and sexual abuse and Cabarga was charged with 93 similar counts. The jury sentenced Johnson to 527 yrs. in prison and Cabarga with 208 years. Later, a court order reduced Cabarga’s sentence to 25 years with the possibility of parole in 5 years because
Cabarga had also been a victim of Johnson.
2. Utilitarianism ~ the purpose of laws is to maximize the net happiness of society. Does not take blameworthiness into consideration. a.
b.
Only future consequences are material to present decisions.
Punishment is justifiable only as a device to keep social order.

c.
Characterization of offender ~ assumes you can cure the
individual. You can manipulate the individual through
deterrence or rehabilitation. d. Deterrence ~ depends on individual’s ability to perform a cost
benefit analysis of his actions and the consequences. i.
Two types of deterrence: Specific - deters individual from performing crime again. General - deters others who are aware of the punishment. ii.
Theory assumes: a.
Punishment is harsh enough to fit the crime b.
People are rational and can comprehend and weigh the cost/benefit of the crime. c.
Certainty of punishment must exist (most expect they will not get caught) d.
There must be proximity of punishment, swiftness. iii.
Problems with deterrence: a.
May lose idea of blameworthiness; cannot punish the innocent just to deter others. b.
Uses people as a means to an end (a perfect society). e. Incapacitation ~ put criminals away where they can no longer be harmful to society. i.
Theory assumes: a.
Past offenders will be repeat offenders b.
Offenders taken off the street will not be immediately replaced by someone else; This assumes:
- opportunities for crime are not abundant
- we are dealing with crimes that require skills
- there is not a high demand for crime
(prostitution, drugs, etc.) c.
Crimes will not be committed in prison d.
Social protection is limited for the general, fee society. e.
It is worth to keep offenders in jail, even though we often pay much more to keep them in jail.

permanently. autonomy. crime. ii.
If we could figure out who the repeat offenders are, we could target them, incapacitate them before they commit crimes. f. Rehabilitation ~ Need to alter the character of the offender i.
Goal is the same as deterrence: to reduce future crime ii.
Downfall of rehabilitation theory caused by: a.
Different people take different time to recover; made uniformity of punishment very difficult b.
Some people could fake success in rehabilitation c.
It’s patronizing; interference with personal d.
Focuses too much on the individual and not the e.
Gets costly because some people will be staying much longer for minor offenses. f.
Too much lee-way was given to the correctional officers, judges, etc. - too easy to discriminate.
B. Proportionality of Sentencing ~ doctrine provides assurance that an offender receives punishment appropriate to the crime he has committed.
1.
Both Retributivists and Utilitarians recognize proportionality in their theories, but they approach it differently. a. Utilitarianism and Proportionality i.
punishment must outweigh the potential profit to the criminal of committing the offense. ii.
the greater the mischief of the offense, the greater the punishment should be. iii.
grade offenses in such a way to induce a person to choose always the least mischievous of two offenses. iv.
punishment should be set in a manner to induce a criminal to do no more mischief than what is necessary for his purpose. v. cannot inflict more punishment than necessary, since punishment is bad in it of itself, just do what’s necessary. b. Retributivism and Proportionality

i.
the offender owes a debt to society, punishment is a mode of repayment. The payment due must be proportional to the offense committed. ii.
theory does not assert like for like. Rapists are punished by getting raped, but a punishment that requires the wrongdoer symbolically to repay his debt.
2. 8 punishment th Amendment basis - prohibits grossly disproportional
3. Solem v. Helm U.S. Supreme Court (1983) [p.96]
Facts: Jerry Helm had six nonviolent felonies. The last felony had been for a “no account” check for $100.
Normally, sentence would have been up to 5 yrs. in prison and a $5000 fine. But because of S. Dakota’s recidivist statute which stated that if a defendant has been convicted of at least three prior convictions in addition to the principal felony, the sentence would be an automatic Class
I felony. Class I felony holds life imprisonment, without parole, in the state penitentiary and a $25,000 fine.
Proc History: S. Dakota District Court sentenced him to life imprisonment after Helms plead guilty of the current felony. S. Dakota Supreme Court rejected Helm’s 8 th
Amendment argument. Habeas relief from the district court was denied. Court of Appeals for the 8 th
district reversed and concluded that Helm’s sentence was “grossly disproportionate.”
Holding: Using the three prong test, discussed below, the
Supreme Court affirms court of appeals decision for a violation of Helm’s 8 th
Amendment rights. The court held that the final clause of the 8 th Amendment “prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed.”
Significance: Trial court was using an incapacitation theory in putting Helms away for life and protecting the public from possible future harms he may cause.
- Set up guidelines for proportionality analysis under the 8 th
Amendment: the following criteria need to be considered
(1) the gravity of the offense and the harshness of the penalty (culpability)
(2) the sentences imposed on other criminals in the same jurisdiction
(3) the sentences imposed for commission of the same crime in other jurisdictions.

4. Rummel v. Estelle - U.S. Supreme Court (1980) [p.101]
Facts: William Rummel was convicted in Texas of obtaining, under false pretenses, a check for $120.75, and then cashing it. Offense carried a two-to-ten year prison term. However because Rummel was a recidivist, he was sentenced to life imprisonment, but was eligible for parole twelve years into his sentence.
Holding: Supreme Court (in a 5-4 vote) refused to overturn
Rummel’s sentence. The dissenters in Rummel set up the three prong test, later used in Solem.
Significance: Without consideration of later cases, although states are prohibited from inflicting grossly disproportionate punishment, the Supreme Court will almost always defer to the state legislature’s judgment in non-capital cases.
Distinguished Solem: because Rummel had the possibility of parole, whereas, Solem did not.
5. Harmelin v. Michigan U.S. Supreme Court (1991) [p.102]
Facts: Ronald Harmelin was convicted of possessing 672 grams of cocaine. Even though it was his first offense, he received the statutory mandatory term of life imprisonment without possibility of parole. Since there is no death penalty in Michigan, this was the harshest sentence available.
Holding: Scalia announced that sentence did not violate 8 th
Amendment because the framers did not include the amendment as a guarantee against disproportionate sentences. Overruled Solem (but not in actuality because it was only two justices).
Significance: This was a plurality decision. Three justices concurred but refused to overrule Solem. Changed threeprong test to a stricter one: if the offense is a serious one, the inter/intra-jurisdictional analysis is not necessary.
C. The Federal Sentencing Guidelines ~ until the 80s most states had indiscretionary sentencing guidelines. In 1984 the Sentencing Reform Act was passed. Wanted to get away from judicial discretion.
1.
Calculation is mathematical: base offense + criminal history
2.
Cannot take into account family, drug usage, or community ties.
3.
Relevant conduct- sentences were raised for conduct that defendants weren’t even convicted of.
THE COMPONENTS OF A CRIME

II. Actus Reas - the criminal act; the physical or external portion of the crime.
A. Individual cannot be punished for a potential crime solely on desert - cannot punish someone for their thoughts.
B. Seven possible conditions for the act requirement and just punishment:
1.
the act must be for (a) past (b) voluntary (c) bad (d) conduct (e) specified (f) in advance (g) by statute.
2. Proctor v. State Oklahoma Ct. of Appeals (1918) [p.124]
Facts: Proctor was convicted of “keeping a place with the intent and for the purpose of unlawfully selling, bartering, and giving away spirituous, vinous, fermented and malt liquors.” The conviction was based on Oklahoma statute which criminalized intent, as quoted above. Proctor did speak of his intent to his friends.
Holding: The statute itself does not define a crime, you must have both elements in order to constitute a crime: a vicious will, and an unlawful act consequent upon such vicious will.
C. Possession
1.
Reasoning: The “keeping of a place” in it of itself is not unlawful.
And the second part of the statute- the intention- is not a crime.
Need an overt act defined in the statute.
Significance: The court recognizes the common law principle that a man cannot be punished for his thoughts. A voluntary act/contraction of muscles is required.
Possession is different when regarding drug statutes, but it varies by state jurisdiction
2.
In Earle v. United States - D.C. Ct. of Appeals (1992) [p.131], the defendant was charged with constructive possession of cocaine when found lying face down, fully dressed, supposedly asleep in a lighted basement room adjacent to another room where a large quantity of crack cocaine was found. a.
The court listed three elements of “constructive possession”
-knew the location of the drugs
-had the ability to exercise dominion and control over them
-had the intent to exercise dominion and control over them
D. Omissions
1.
Not every moral obligation to act creates a concomitant legal duty.

2.
If an Olympic swimmer walks by a pool and sees a child drowning, she has no obligation to stop and save the child, even though it would be of no risk to her at all.
3. Jones v. United States - D.C. Cir. (1962) [p.131]
Facts: Shirley Green had child out of wedlock and she arranged for Jones, a family friend, to take care of the child in her home.
Baby suffered from severe malnutrition and lesions over its body caused by severe diaper rash. Baby died due to malnutrition.
Proc History: Trial Court failed to instruct jury that in order to be held liable, Jones had a legal - not moral- duty to care for the child.
The Jones court reversed for a new trial.
Holding: The court identified four situations in which the failure to act may constitute breach of legal duty:
(1) where a statute imposes a duty to care for another
(2) where one stands in a certain status relationship to
another
(3) where one has assumed a contractual duty to care for another
(4) where one has voluntarily assumed the care of another and so secluded and the helpless person as to prevent others from rendering aid.
E. Requirement of Voluntariness
1. Voluntariness is a proxy for blameworthiness.
2. Reflex or convulsion: An act consisting of a reflex or convulsion does not give rise to criminal liability.
3. Unconsciousness: An act performed during a state of
"unconsciousness" does not meet the actus reus requirement. But D will be found to have acted "unconsciously" only in rare situations.
4. Hypnosis: Courts are split about whether acts performed under hypnosis are sufficiently "involuntary" that they do not give rise to liability. The Model Penal Code (MPC) treats conduct under hypnosis as being involuntary.
5. Self-induced state: In all cases involving allegedly involuntary acts, an earlier voluntary act may deprive an individual of the "involuntary" defense.
6. People v. Newton - N.Y. Court of Appeals (1973) [p.135]
Facts: Newton was aboard Air International Bahamas flight bound from Bahamas to Luxembourg. Newton concealed a .38 caliber

revolver and ammunition while on board. Newton, who was severely handicapped, became somewhat unruly, captain was made aware of the firearm, and decided to land the plane in New York.
The New York statute states that anyone who posses a firearm and ammunition is guilty of a Class D felony.
Holding: Newton did not subject himself to criminal liability by virtue of a voluntary act. Since his flight was not scheduled to pass through the territorial United States, he cannot be held accountable for those regulations. A writ of habeas corpus was granted. There was no foreseeability of liability.
7. Martin v. State Alabama Ct. of Appeals (1944) [p.137]
Facts: Martin was convicted of being drunk on a public highway.
Officers arrested him at his home and took him onto the highway where he manifested a drunken condition. The Alabama statue states that anyone in a public place manifesting a drunken condition shall be convicted or fined.
Holding: Voluntary appearance is presupposed. If only the drunkenness was required to be voluntary, Martin would have been convicted. Court overruled the jury decision because it could not be proved that the public appearance was voluntary.
8. MPC 2.01
- Requirement of Voluntary Act
(1) A person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act…
(4) Possession is an act, within the meaning of this Section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.
9. People v. Grant - Illinois Ct. of Appeals (1977) [p.138]
Facts: Grant was at a tavern where he consumed four drinks in about 2 ½ hours. An altercation between another patron and the tavern owner ensued. The police were called to the scene and forcibly escorted the patron out. The defendant burst through the crowd and stuck an officer twice in the face. Witnesses stated that
Grant was violent and aggressive when arrested. Approximately one hour after arrest, Grant had an epileptic seizure in his cell. His medical history is full of emotional outbursts.
Arguments: Defendant claims that because of the seizure, his mind went blank and therefore, he could not have committed a voluntary act. Trial court jury instructions did not distinguish from an insanity argument and an automatism argument. Automatism is defined as the state of a person who, though capable of action is not conscious of what he is doing. Automatism is not insanity.

Grant is arguing for this because if he is found insane he will be institutionalized, whereas an involuntary act has no repercussions.
Holding: While Grant may not have committed a voluntary act, he can be held responsible if he had previous knowledge of his susceptibility for violence, especially when drinking. The court reversed the conviction for aggravated battery and obstructing a police officer and remanded the case for a new trial based on the failure of the jury instructions to distinguish between insanity and automatism.
Significance: The Court made a plea to the legislature in its decision to address the cases of automatism in future statutes. a. MPC 2.01(2a)
The following are not voluntary acts within the meaning of this Section:
(a) a reflex or convulsion;
(b) a bodily movement during unconsciousness or sleep;
(c) conduct during hypnosis or resulting from hypnotic suggestion;
F. Status Crimes
1.
Focus on punishing a person for a mere propensity to act. The Supreme
Court has not looked kindly on these types of statutes.
2. Robinson v. California U.S. Supreme Court (1962) [p.147]
Facts: A California statute made it a criminal offense for a person to “be addicted to the use of narcotics.” Robinson was apprehended in L.A. where police officers observed track marks and heard him admit to occasional use of narcotics.
Holding: This statute is analogous to criminalizing a disease, it is a violation of the 8 th and 14 th Amendments. “Narcotic addiction is an illness which may be contracted innocently or involuntarily…Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.”
Significance: California was criminalizing the status of being addicted to drugs. This type of statute takes away the actus reas requirement for a crime. However, Stewart’s assumption that drug use and addiction are involuntary could have the repercussion of not ever being able to criminalize drug use on the lack of the voluntary element needed. Justice Harlan concurred under the retributive punishment theory because he would only authorize punishment if there was a past act committed. White dissenting: feels drug use is voluntary act.

3. Powell v. Texas U.S. Supreme Court (1968) [p.151]
Facts: Defendant was arrested and charged with being found in a state of intoxication in a public place, in violation of Texas Penal
Code. Defendant was tried and found guilty, fined $20.
Arguments: Defense argued that Powell was afflicted with the disease of chronic alcoholism.
Holding: Defendant was not convicted of being an alcoholic, but of being in a public place while drunk. This constituted an act, not a status.
Significance: This was a plurality opinion. White, concurring, said the voluntariness of Powell’s act was that of being in public. He can be an alcoholic at home without breaking the law. Dissenters argued that alcoholism is like drug addiction in that it is involuntary.
4. Pottinger v. Miami Florida Dist. Ct. (1992) [p.152]
Facts: City of Miami arrested thousands of homeless people for such life-sustaining conduct as sleeping and eating under a Florida statute.
Arguments: Plaintiffs argue that their status of being homeless is involuntary, and therefore precedent of Robinson should be followed.
Holding: Do homeless people have a realistic choice but to live in public places? Harlan says no. Expert witness testified that
“homelessness is both a consequence and a cause of physical or mental illness.” The court held that “arresting the homeless for harmless, involuntary, life-sustaining acts such as sleeping, sitting or eating in public is cruel and unusual.
[p.161]
G. Legality
1.
There needs to be a law that declares an act criminal and postulates a punishment in order to be convicted.
2.
Do crimes based on common law meet legality standard? a.
Most states have abolished common law crimes.
3. Commonwealth v. Keller Pennsylvania Ct. of Common Please (1964)
Facts: Keller had a child out of wedlock. Claims baby was born dead. She wrapped the body of the child and stored it in her basement for more than a year. She gave birth to a second child in
1963. The child was born alive, so she drowned him in the toilet, then shoved the body in a sanitary napkin box, and put the box in a closet. Defendant was indicted for adultery and two counts of a

common law misdemeanor, characterized as the “indecent disposition of a dead body.”
Arguments: Because there was lack of evidence as to when the second child died, the criminal case against Keller did not succeed.
Defendant argued that the crime she was convicted of (indecent disposal of body) was not one which is cognizable under the laws of the Commonwealth.
Holding: Historically, disposing of dead bodies needs to be decent. Even though there is no Pennsylvania common law to this effect, it is so in other states. “We thus consider the common law as being sufficiently broad to punish as a misdemeanor, although there may be no exact precedent, any act which directly injures or tends to injure the public to such an extent as to require the state to interfere and punish the wrongdoer, as in the case of acts which injuriously affect public morality or obstruct or pervert public justice or the administration of government.”
Significance: Court relies on moral fiber of community and historical rituals of burial.
4. Keeler v. Superior Court California Sup. Ct. (1970) [p.168]
Facts: Defendant beat up his ex-wife because she was pregnant and killed the child in the process. Keeler was charged with the murder of a viable fetus.
Holding:
The penal code stated, “Murder is the unlawful killing of a human being, with malice aforethought.” The Court talked of the legislative intent, and based on common law principles, found that a fetus was not encompassed in the definition of a human being.
Even so, there are no common law statutes in California, and based on the absence of a statute addressing the death of a fetus, and thus reversed the charge. The Court said the punishment received by
Keeler was unforeseeable.
Significance:
If the court had upheld Keeler’s conviction, the decision could have had repercussions on the issue of abortion.
Since the killing of a fetus was not specified in a statute, the law would be ex post facto and thus would violate the Due Process
Clause.
5. “Analogy”
is a principle of substantive criminal law which permits the conviction of an accused despite the absence of any defined criminal behavior. If the actions of the accused are perceived to be inimical to the socio-political order then he may be found guilty of a defined crime which prohibits analogous behavior. (Chinese way of law)
H. Specificity
1. Ricks v. District of Columbia D.C. Ct. of App. (1968) [p.178]

Facts: D.C. had a statute which allowed people to be arrested for vagrancy for such actions as “not giving a good account of oneself.” The statute did not name an actual offense. Divides offense into 8 classes of vagrancy; e.g., pickpockets, felons, etc.
Holding: The statute is so vague that it violates the 5 th
Amendment. “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” Need reasonable precision in the definition of crime.
Significance: Image~ Demlieter in her short mini skirt at the Ann
Arbor train station. Statute gives too much discretion to officers; this matters because you can’t vote police officers out of office for discrimination.
III. The Guilty Mind ~ Mens Rea ~ an act does not make a person guilty, unless the mind be guilty.
A. Bad thoughts ~ The criminal law generally conceives bad thoughts as
(1) the desire to harm others or violate some other social duty or
(2) disregard for the welfare of others or for some other social duty
B. Blameworthiness ~ has two parts
1. Mens rea - leads us to examine a criminal statute and ask what specific bad or culpable mental states, attached to which specific acts or circumstances, the state must prove to establish legal guilt.
2. Responsibility leads us to ask whether, despite the state’s proof of the requisite mental element, the presumptively guilty individual nevertheless is not morally blameworthy and cannot be fairly held responsible for the crime because of an excusing affirmative defense such as duress or insanity.
C. Requirement of a Guilty Mind
1. United States v. Balint U.S. Supreme Court (1922) [p.199]
Facts: Balint indicted for selling a certain amount of a derivative of opium and coca leaves contrary to Narcotic Act. Balint claimed did not have knowledge of the illegality of the drugs.
Holding: The statute does not make such knowledge an element of the offense. Legislative intent shows that some statutes require

strict liability based on the principle that we would rather protect society rather than the innocent drug dealer.
2.
Implications of strict liability in criminal cases a. MPC §2.05
allows a criminal offense which imposes strict liability only to be punished as a violation. b.
A violation carries no jail time. Cases of food safety are an adequate application of criminal strict liability. c.
Requires no mental state. d.
Proof problems for prosecution become trivial e.
Statute must explicitly state “strict liability”; it will never be implied by courts.
3. United States v. Dotterweich U.S. Supreme Court (1943) [p.203]
Facts: Pharmaceutical company mislabeled a drug. Were charged for shipping misbranded drugs.
Holding: In such a situation we can dispense of the awareness element of a crime and apply strict liability. The violation was one of the Federal Food, Drug, and Cosmetic Act. We want to place the burden on those who have at least the opportunity of informing themselves of the existence of conditions imposed for the protection of consumers. But can only be punished by a fine.
4. Morissette v. United States U.S. Supreme Court (1952) [p.207]
Facts: Morissette took bomb castings that were exposed to the weather and rusting away from an Air Force practice bombing range, flattened them and sold them at a city junk for a profit. He was convicted of violating a statute which stated “it is a crime to knowingly convert government property.”
Holding: It would be unfair to construe intent into this statute like in Balint. Morissette’s crime is not worth imposing an element which was not codified.
D. Categories of Culpability
1. Regina v. Faulkne r Court of Crown (1877) [p.221]
Facts: Faulkner was stealing run off a ship, then he lit a match, he set the rum, barrel and ship on fire. The statute provides for mens rea of feloniously, unlawfully and maliciously. Court is split on what these mean.

Arguments: Prosecution says if person is already involved in a felony, then any other felony that is a consequence is also culpable.
In this case the foregoing felony was the stealing of rum.
Holding: Justices are split, they begin to identify different levels of culpability, but send case back to trial.
2. MPC §2.01
- Kinds of Culpability Defined a. Purposely : i.
he is aware of circumstances or hopes they exist ii.
it is his conscious object to cause such a result iii.
it is his conscious object to engage in conduct of that nature. iv.
implies willful b. Knowingly: i . he is aware that such circumstances exist ii.
he is aware that it is practically certain that his conduct will cause such a result iii.
he is aware that his conduct is of that nature c. Recklessly: i. consciously disregards a substantial and unjustifiable risk that the material elements exists or will result from his conduct. ii.
implies carelessness iii.
default mens rea d. Negligently: i.
involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation. ii.
unaware of substantial risk he should have been aware of iii.
not blameworthy or deterrable
E. Mens Rea and Mistake
1. Regina v. Prince Court for the Crown (18750 [p.238]
Facts: Prince charged with unlawfully taken one Annie Phillips, and unmarried girl, being under the age of 16, out of the possession and against the will of her father.
Arguments: Prince says that Phillips told him she was 18 and she also looked older. Knowledge of age requirement is not included in the statute, but Prince argues that it should be.
Holding: Court finds that we do not need to insert knowingly because:
(1) the act in itself is wrong
(2) statute says girl ; one who is in possession of her father is still a girl

If he knew she was in possession and in care or charge of anyone, he would know was a crime or not, according as she was under sixteen or not.
2. State v. Guest Supreme Court of Alaska (1978) [p/245]
Facts: Defendants convicted of statutory rape of 15 year old girl.
Defendants are claiming they reasonably and honestly thought the girl was 16.
Issue: Is reasonable good faith belief a good defense?
Proc. History: Case based on flawed jury instruction. Jury instructions never occurred. Two side stipulated to facts. Supreme
Court had to assume that it was an honest and good faith perception that girl was 16.
Holding: Instructions absolving defendants for a reasonable and honest belief were correct. Honest and reasonable requires negligence mens rea.
Significance: Defense has burden of production to introduce the indication that there was a reasonable belief. Prosecution must show beyond reasonable doubt that there was no reasonable belief.
MPC defaults to reckless if there is no mens rea specified.
3. MPC §213.6
has strict liability for child younger than 10 yrs. old.
Above the age of 10, negligence is the mens rea.
4. Regina v. Morgan House of Lords (1976) [p. 253]
Facts: Morgan brought three younger men to his house and told them his wife consented to all of them having sex with her. Wife claims there was no consent on her part.
Arguments: Three men argue that they thought the wife consented.
Holding: Whether in rape the defendant can properly be convicted notwithstanding that he in fact believed that the woman consented, if such belief was not based on reasonable grounds. Court said defendants’ belief was totally unreasonable.
5. People v. Ryan N.Y. Ct. of Appeals (1993) [p.257]
Facts: Penal Law makes it a felony to “knowingly and unlawfully possess…six hundred twenty-five milligrams of a hallucinogen.”
Defendant ordered a shipment of mushrooms. The package contained 796 milligrams of psilocybin, a hallucinogen.
Holding: A purpose of the knowledge requirement is to avoid over-penalizing someone who unwittingly possesses a larger amount of a controlled substance than anticipated. Since there was no evidence presented as to how much psilocybin is usually in mushrooms, the court could not support the satisfaction of the knowledge requirement.

F. Mistake of Law ~ ignorance of the law excuses no one. Actor’s ignorance or mistake of law does not negate the mens rea of an offense, as a comparable mistake of fact may do, because neither knowledge nor recklessness or negligence as to whether conduct constitutes an offense, or as to the meaning of an offense, is ordinarily an element of that offense.
1. United States v. Baker U.S. Ct. of App. 5 th
Cir. (1986) [p.263]
Facts: Paul Baker was convicted under a new statute for dealing in counterfeit watches. The statute specified “intentionally traffics or attempts to traffic in goods or services and knowingly uses a counterfeit mark…”
Arguments: Baker claims that although he knew the watches were counterfeit, he did not know his conduct was criminal. Baker wanted the jury to be instructed that knowledge applies to the existence of the statute as well. A prior statute only focused on civil fines/penalties for such acts, Baker claimed he did not know act had been criminalized.
Holding:
“A defendant cannot ‘avoid prosecution by simply claiming that he had not brushed up on the law.’”
Significance: If we require knowledge of the law to convict, people could always use lack of knowledge as an excuse.
2. MPC § 2.202(9)
~ Neither knowledge nor recklessness nor negligence as to whether conduct constitutes an offense or as to the existence, meaning or application of the law determining the elements of an offense is an element of such offense, unless the definition of the offense or the
Code so provides.
3. Hopkins v. State Maryland (1950) [p.266]
Facts: Hopkins violated a statute making it unlawful to erect or maintain any sign intended to aid in the solicitation or performance of marriages. Hopkins maintained a sign on the highway into
Maryland advertising marriages, etc.
Arguments: Hopkins was told by the State’s Attorney that the signs would not violate the law prior to the enactment of the law.
Holding: Merely asking a state official for advice is not enough to exonerate someone of a mistake of law. If the official had been the
Attorney General or some other impartial party, the court may have held differently. Because the State’s Attorney resided in the same town as Hopkins and the possibility for a conflict of interests was high, the court still found Hopkins in violation of the statute.
4. MPC § 2.04 (3)
~ A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when:

if:
(a) the statute or other enactment defining the offense is not known to the actor and has not been published or otherwise reasonably made available prior to the conduct alleged; or
(b) he acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in
(i) a statute or other enactment;
(ii)
(iii)
a judicial decision, opinion or judgment;
an administrative order or grant of permission; or
(iv) an official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense.
5. Mistake of Non-Governing Law May Negate the Mental Element a. People v. Bray California Ct. of App. (1975) [p.268]
Facts: Bray was convicted in California under a statute that made it illegal for a felon to carry a concealed firearm.
Bray had pled guilty in Kansas as being an accessory to a crime. Evidence showed that Bray honestly did not know whether to consider himself a felon or not.
Argument: In order to gain a conviction under the relevant statute, the prosecution must prove (1) conviction of a felony and (2) ownership, possession, custody or control of a firearm. There was no question that Bray had been convicted of a felony and that he had been carrying a concealed firearm, but the statute is not one that enforces strict liability.
Holding: The court held that Bray’s mistake was one of fact since Bray had an honest and sincere question as to whether he was felon. Even thought the mistake of law was that he did not understand the law making him a felon, that is a fact in this case. Baker did not claim ignorance of the law. b. Non-Governing Law ~ an element within a governing law; the legal definition of a felon within the governing statute.
6. MPC § 2.04 Ignorance or Mistake
(1) Ignorance or mistake as to a matter of fact or law is a defense
(a) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense; or
(b) the law provides that the state of mind established by such ignorance or mistake constitutes a defense.

Element
7. Mistake of Non-Governing Law May Not Negate the Mental a. United States v. Learned U.S. Dist. Ct. (1870) [p.273]
Facts: Learned was brought to trial for failing to put an
IRS stamp on contracts. Learned claims that he thought the contracts were vouchers and thus did not need a stamp.
Holding: Court presumes knowledge of what a legal contract is. Since they assumed to construe the law for themselves, and having misconstrued it, they must abide by the consequences.
Significance: Distinguished from Bray, because court found that since the men were businessmen, they should know that since the vouchers circulated outside the store, they were deemed to be contracts.
Responsibility
8. Mistake of Non-Governing Law May Be an Excuse from a. Long v. State Delaware Sup. Ct. (1949) [p. 278]
Facts: Long was convicted of bigamy upon his remarriage following an out of state divorce that an attorney had erroneously assured him would be valid.
Argument: The defense of mistake of fact is important only because it negatives a “criminal mind,” general criminal intent.
Holding: There are three classifications of culpability:
(1) Unawareness that conduct is a crime
(2) Although aware of the existence of a criminal law relating to the subject of such conduct, defendant erroneously concludes that his particular conduct is not subject to the operation of any criminal law.
(3) Aware of the law, the defendant made a bona fide, diligent effort to use our legal system to abide by the law, and he acted in good faith reliance upon the results of such effort.
Court relies on specific intent discussion. Sent case back to trial to show that Long’s mistake was sincere, honest and reasonable. b.
Review of specific v. general intent: i.
Specific intent identifies specific intent with the mental element of the offense ii.
General intent with defendant’s moral responsibility for committing the offense.
9. Mistake of Governing Law May Be an Excuse from Responsibility

[p.283] a. Commonwealth v. Twitchell Sup. Ct. of Massachusetts (1993)
Facts: David and Ginger Twitchell were convicted of involuntary manslaughter for the death of their two and one-half year old son Robyn. The Twitchells were
Christian Scientists who believed in spiritual treatment of their child and thus did not take him to the doctor, for a condition which was proven that if treated would not have caused death. Twitchells relied on a speech given by the
Attorney General that exonerated parents from manslaughter charge if they relied on spiritual treatment.
Holding: The verdicts were set aside and the cases were remanded for a new trial if the DA thinks it prudent. The court held that the Attorney General was a reliable and persuasive authority even if he did interpret a statute incorrectly. Plus the Twitchells had already suffered so much, there was no mens rea in their action. b. Cheek v. United States Sup. Ct. (1991) [p.288]
Facts: Statute exists that makes it illegal to willfully attempt to evade taxes or willfully failing to pay one’s taxes. Cheek’s defense was that he thought the Federal
Income tax is not constitutional under the 16 th
Amendment.
Holding: Court said that if Cheek was so worried about the constitutionality issue, he could have paid his taxes and then argued it in court. Cheek also argued that he thought that his income did not apply to federal taxes, only state taxes. Court accepted his argument as long as it was honest. Because the tax law is so complicated a subject, can’t hold defendants strictly liable. If the jury finds a sincere and honest belief on Cheek’s part that he did not have to pay the taxes, then he may not be convicted under that law.
G. Capacity for Mens Rea
1. People v. Wetmore California Sup. Ct. (1978) [p.303]
Facts: Wetmore was charged with burglary for entering someone’s house he thought was his own, residing there for several days and stealing several articles from the home. Wetmore was found by the owner of the apartment living in it as if it was his own.
Arguments: For burglary we need (1) an entry into a dwelling of another with (2) the intent to commit larceny or a felony.
Wetmore argued that he did not the intent necessary because he lacked the knowledge that the house and property were not his.
Defense argued that Wetmore was “lacking mental capacity”- this

is different from and insanity plea because prosecution has the burden now to show that he had the capability to form the intent.
Holding: “A defendant who, because of diminished capacity, does not entertain the specific intent required for a particular crime is entitled to be acquitted of that crime.
2. State v. Cameron New Jersey Sup. Ct. (1986) [p.307]
Facts: Michele Cameron was indicted for second degree aggravated assault. Cameron claimed that she was so intoxicated that she lacked the mens rea necessary to be convicted of the crimes. Cameron walked up to four men playing cards and disrupted them, she overturned their card table, attacked one of them with a broken bottle, and raced with violence at the arrival of police.
Issue: Can voluntary intoxication negate the mens rea element of a crime?
Holding: Self-induced intoxication is not a defense unless it negatives an element of the offense. Court found that defendant has to show that Cameron was so intoxicated that it negated an element of the crime.
Significance: If intoxication is an excuse, what holds people back from getting drunk with the purpose of committing a crime?
3. People v. Guillett Michigan (1955) [p.313]
Facts: Guillett drank, took woman home, struck her and tried to rape her.
Arguments: Guillett is claiming that he was too intoxicated to know what he was doing.
Holding: Court found that Guillett had become intoxicated to get up the nerve to make advances at this woman. But the court sent the case back to the jury to see of intoxication “might negative the requisite intent.”
3. MPC § 2.08
(1) Voluntary intoxication of the actor is not a defense unless it negatives an element of the offense.
(2) When recklessness establishes an element of the offense, if the actor, due to self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial.
IV. Causation of Harm ~ Third element of crime. Crime is only relevant if you have a result.
A. Four strategies for limiting causation:

1. But-For Causation a.
b.
Factual Causation
A would not have occurred ‘but-for’ B c.
Exception is often made for simultaneous sufficient conditions, as when two assailants simultaneously shoot a victim. d. Regina v. Martin Dyos Central Criminal Court (1979) [p.320]
Facts: After a Community Center dance seven youths got in a fight with five others. One of the group of five(MD) threw a stone which hit one of the seven (PS) in the back of the head. PS proceeded to challenge the five and hit one of them. This turned into a scuffle when RM was spotted lying on the ground bleeding. One of the injuries on RM’s head was caused by a brick held by MD.
Holding: There existed two wounds each of which could have caused death. There is no evidence as to where the second wound came from. MD could only be guilty if death was natural and probable consequence of his act. Since could not establish clear ‘but-for’ causation, can not be held and the result. liable.
2. Foreseeability a.
b.
Legal Causation
Requires connection between the actor’s culpable mental state c.
The injury incurred must be one the actor foresaw to be caused by his recklessness. d.
Often referred to as “proximate causation.” e. Commonwealth v. Rhoades Sup. Ct. of Massachusetts (1980)
[p.333]
Facts: Rhoades was charged with deliberately setting a fire in an apartment he was visiting. Firefighter James Trainor entered the burning building and the combination of cold weather, stress and smoke inhalation precipitated a coronary thrombosis which caused his death. Defendant was charged with arson and second-degree murder for the death of Captain Trainor.
Arguments: Trial judge gave jury instruction that stated if
Rhoades’ act “in any way contributed to hasten, or was part of the proximate cause of Trainor’s death,”, he would be liable for 2 nd degree murder.
Holding: This formulation exposed Rhoades to potential liability for events not proximately caused by his felonious act in setting the fire. Need to instruct jury that without the action of Rhoades, the injury would not have happened.

causation. f. MPC §2.03.
Causal Relationship Between Conduct and Result;
Divergence Between Result Designed or Contemplated and Actual
Result or Between Probable and Actual Result
(1) Conduct is the cause of a result when:
(a) it is an antecedent but for which the result in question would not have occurred; and
(b) the relationship between the conduct and result satisfies any additional causal requirements plainly impose by law.
(2)
…
(3) When recklessly or negligently causing a particular result is a material element of an offense, the element is not established if the actual result is not within the risk of which the actor is aware, or in the case of negligence, of which he should be aware unless:
…
3. Intervening Events a.
Defendant can show intervening factor that broke the chain of b.
Inconsistent with foreseeability standard because that would dictate that if the actor could have foreseen the “intervening” event, she is responsible for creating a condition necessary for the intervening even to cause the harm. i.
Intervening actions - premised on free will. Providing the necessary means for another person to do harm was not to cause the harm oneself. ii.
Temporal Intervals - The longer the interval, the more plausible it becomes that but for defendant’s action the victim might have suffered some other misfortune. And the more plausible it becomes that some other undetected factor has caused the result. c. Commonwealth v. Root Sup. Ct. Pennsylvania (1961) [p.341]
Facts: Defendant was racing with decedent down a highway. In a no passing zone decedent attempted to pass when a truck was closely approaching, drove his car over divide and head on into the truck.
Holding: Court rejected expansion of proximate cause from tort to criminal law. Root was just engaged in reckless behavior, was not the direct cause of death. The action of the deceased driver in recklessly and suicidally swerving his car to the left lane caused the death.
Dissent: If use the ‘but-for’ causation test, then accident would not have happened, so Root should be held liable.

d.
In Russian Roulette cases, the defendant will almost always be held liable because the probability of death is much higher and the ultimate goal is for one of the people to die. e. United States v. Hamilton Dist. Ct. D.C. (1960) [p.351]
Facts: Two men were playing pool, started to argue, were asked to leave and started fighting outside. Decedent got knocked down and defendant exploded in a fit of ungovernable rage and jumped on the face of the deceased and kicked him in the head. At the hospital decedent received incessant and continuous care. At 6:30 in the morning, the patient had a convulsion, woke up and pulled out the breathing tubes in his nose. Decedent died from asphyxiation due to aspiration or inhalation of blood caused by severe injury to the face.
Argument: Prosecution argues that the hit in the face started off the chain of events which eventually led to the death of the decedent.
Holding: Courts have found that even if deceased refuses to get proper medical care, defendant can still be found liable for death (even if death could have been prevented with medical care). The court finds that “the injuries inflicted on the deceased by the defendant were the cause of death in the light of the principles of law heretofore discussed, and that, therefore, the defendant should be adjudged guilty of homicide.” (p.355) f.
Assault victim dies after feeding tube withheld by court (p.355) i.
Four years after a stabbing, Mr. Weaver’s life support mechanism was removed, despite the objections of his assailant. ii.
Mr. Weaver’s assailant could be charged with murder. g.
Woman dies seven years after husband shot her (p.356) i.
Penny Dunn’s husband shot her in the face during an argument over a telephone bill seven years ago. She recently died of complications from her gunshot wound. ii.
Police were looking to see if they could press new charges against the husband who only spent two years in prison. h. Those who use violence on other people must take their victims as they find them. (p.359) i. Baylor v. United States D.C. App. (1979) [p.360]
Facts: defendant struck his wife during an argument, causing a two-inch laceration in her spleen. She waited for a delayed ambulance then two hours for doctors to diagnose her.

Holding: Court confirmed husband’s conviction of involuntary manslaughter. It held that the hospital’s negligence did not negate his liability for homicide, since he could reasonable have foreseen the possibility that the victim would receive negligent treatment. j.
Gross negligence of doctors will usually excuse a defendant form liability. k. Stephenson v. State Indiana Sup. Ct. (1932) [p.361]
Facts: Man abducted and basically imprisoned Madge
Oberholtzer. Stephenson repeatedly assaulted, bit and attempted to rape her. Oberholtzer secretly obtained and ingested bichloride of mercury. She became violently ill, refused Stephenson’s attempt to take her to the hospital, so he returned her home. During the trip she became more ill, screamed for the doctor. She died ten days after being home.
Holding: To say that there is no causal connection between the acts of appellant and the death of Madge Oberholtzer would be a travesty of justice. Court found that Mrs. O. was in constant watch of Stephenson, and never really left the domination he had over her during her abduction. “We therefore conclude that the evidence was sufficient in finding that Stephenson rendered the deceased distracted and mentally irresponsible, and that such was the natural and probable consequence of such unlawful and criminal treatment, and that the appellant was guilty of murder in the
2 nd
degree.” (p.364) l. People v. Kevorkian Michigan Sup. Ct. (1994) [p.367]
Facts: Kevorkian allegedly assisted in the deaths of Sherry
Miller and Marjorie Wantz. Each woman was suffering from a condition that caused great pain and was severely disabling. The devices that Kevorkian used for the assisted suicides both required the women to invoke the flow of chemicals that would ultimately cause their deaths.
Arguments: To convict a defendant of criminal homicide, it must be proven that death occurred as a direct and natural result of the defendant’s act. Usually if the defendant assists in the final act of death, i.e., shooting, stabbing, administering the poison, etc, he will be held liable for homicide.
Holding: Where a defendant merely is involved in the events leading up to the death, such as provident the means, the proper charge is assisting in a suicide. Court remanded the matter to the circuit court for reconsideration of the defendant’s motion to quash in light of the principles discussed in this opinion.

Dissent: Since intended results (death of a patient) were those actually obtained, so it still should be viewed as murder. The issue of weather the death has been caused for good or bad reasons should be decided by a jury or the
Legislature.
4. Duties criminal law generally limits the causal responsibility of omitters to those who have some duty to act, resulting from statute, status, contract or undertaking. a. People v. Beardsley Michigan Sup. Ct. (1907) [p.372]
Facts: Man was cheating on his wife with another woman. While wife was out of town, they spent the weekend together, drinking a lot. The woman asked a young man to go to the drugstore and buy camphor and morphine tablets. The woman took from three to four grains of morphine. The woman was in a stupor so man had her taken to the basement since his wife was about to come home.
She died in the neighbor’s basement apartment.
Arguments: Prosecution claims that under the circumstances defendant owed a duty to protect the woman.
Holding: But duty neglected must be a legal duty, and not a mere moral obligation. If respondent was under a legal duty towards Blanche Burns at the time of her death, knowing her to be in peril of her life, which required him to make all reasonable and proper effort to save her, the omission to perform which duty would make him responsible for her death. Court held that although respondent should have helped Burns because of a moral obligation, there can be no punishment given for this omission since it was not a legal duty.
V. Homicide Offenses
A. Murder ~ An unjustified killing manifesting (p.383)
(1) purpose to cause death; or
(2) intent to inflict serious bodily harm; or
(3) extreme recklessness with respect to a serious risk of harm to another’s life, when the risky action manifests so unworthy or immoral a purpose as to suggest callous indifference to human life; or
(4) under the so-called felony-murder rule, a willingness to undertake even a very small risk of death where the risky conduct is so unworthy as to establish guilt of a serious felony.

1. Murder can generally be defined as the killing of one human being by another with “malice aforethought.” a.
Malice can best be described a san intention to cause, or a willingness to undertake a serious risk of causing, the death of another, when that intent or willingness is based on an immoral or unworthy aim.
2.
First degree murder : Intentional and premeditated, or if it involves a killing during the course of one of several major felonies.
B. Manslaughter- is without malice
1. Voluntary manslaughter ~ an intentional killing that lacks malice because the killer either acted in the heat of passion after “adequate provocation” or acted in the honest but unreasonable belief that the killing was necessary for self-defense.
2. Involuntary manslaughter ~ a killing committed recklessly or highly negligently. a.
b.
Reckless manslaughter
Negligent manslaughter
C. MPC a. §210.2 Murder
(1) Except as provided in Section 210.3(1)(b), criminal homicide constitutes murder when:
(a) it is committed purposely or knowingly; or
(b) it is committed recklessly under circumstances manifesting extreme indifference to the value of human life. Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape.
(2) Murder is a felony of the first degree [punishable by imprisonment or capital punishment] b. §210.3 Manslaughter
(1) Criminal homicide constitutes manslaughter when:
(a) it is committed recklessly; or
(b) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional 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 a she believes them to be.

(2) Manslaughter is a felony of the second degree [having a minimum punishment of one to three years in prison and a maximum sentence of ten years]. c. § Negligent Homicide
(1) Criminal homicide constitutes negligent homicide when it is committed negligently.
(2) Negligent homicide is a felony of the third degree [with a one to two-year minimum sentence and a maximum of fine years in prison].
D. Intentional Murder (second-degree)
1. Francis v. Franklin U.S. Supreme Court (1985) [p.399]
Facts: Four prisoners went to see a dentist, Franklin took a nurse as hostage and attempted to escape. Franklin made no attempt to hurt or kill anyone. They came up to Collie’s house which had a large wooden door. Franklin pounded on it, when Collie came to the door and saw Franklin with the gun, he slammed the door.
Franklin claims his gun went off at this point, the bullet traveled through the wooden door and killed Collie. Franklin fired again seconds later into the top portion of the door.
Arguments: Franklin claims the shooting was accidental and that he lacked the necessary intent or voluntariness to be convicted of first-degree murder.
Issue: Trial judge gave a jury instruction which “presumed intent” on Franklin’s part, and thus shifted the burden of proof from the plaintiff to the defense to disprove the intent.
Holding: The court found that “the instructions undermined the factfinder’s responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt.”
[p.402]
2. Commentary on MPC §210.2 a.
“Liability under this section may not rest merely on a finding that the defendant purposely or knowingly did something which had death of another as its natural and probable consequence.
Rather the prosecution must establish that the defendant engaged in conduct with the conscious objective of causing death of another or at least with awareness the heath of another was practically certain to result from his act.” [p.404]
E. Premeditated Murder (first-degree)
1. United States v. Watson D.C. Ct. of App. (1985) [p.405]
Facts: Watson was running away from the police, went into an apartment. The officer came in, Watson wrestled him to the ground

and got a hold of his gun. Watson listened to the officer say, “It’s not worth it,” then shot him from about 30 inches away.
Arguments: Watson claims that his killing was not premeditated and thus should not be liable for 1 st
degree murder.
Holding: Even a few seconds is enough for premeditation and deliberation over a killing. The officer pleaded with Watson, which signifies he had time to mull it over before shooting the officer.
“The totality of the circumstances cast substantial doubt on appellant’s claim that he fired out of fear, in a panic, or in selfdefense when the officer allegedly reached for the gun.” [p.409]
F. Provocation
1. MPC Commentaries §210.3 a.
Provocation is regarded as a recognition by the law that inquiry into the reasons for the actor’s formulation of an intent to kill will sometimes reveal factors that should have significance in grading. b.
Provocation is said to be “adequate” if it would cause a reasonable person to lose his self-control. criteria apply:
2. Partial Justification if it is going to mitigate a claim, the following a.
The provocation would have to come from the victim. b.
Words themselves would never by “adequate” provocation. c.
The victim’s defensive force against the killer’s initiating force could never by a provocation. d.
The killer must have some strong evidence that the wrong he avenges really occurred.
3. Partial Excuse - if it is going to mitigate a claim, the following criteria apply: a.
The killer must act immediately after the provocation. b.
The victim need not have been the cause of the provocation. c.
The victim’s defensive force against the killer’s initiating force could be provocation. d.
The killer may have been wholly, though understandable, mistaken in ascribing bad conduct to the victim.
4. Rowland v. State Sup. Ct. of Mississippi (1904) [p.423]
Facts: Rowland was indicted for the murder of his wife. Appellant and wife were separated, wife was staying with friends. Appellant went to visit his wife one night and found her in bed with another man. The candle went out, and Rowland attempted to shoot the man, but shot his wife instead.
Issue: The trial court gave the instruction that murder is the act done deliberately and with intent to kill.
Holding: The court found this instruction wrong because it did not jury could not consider the provocation mitigation option with this instruction. There was enough circumstantial evidence to

suggest adultery and that caused an immediate reaction, not a premeditated one.
5. Historically, adultery has been a justification for mitigating a homicide by the husband because wife was seen as property.
6.
Provocation at the sight of adultery can be proven based on circumstantial evidence.
7. MPC § 210.3(1)(b)
Reasonableness of reaction must be measured by the particular person in the specific situation he believes to be in.
8. People v. Berry California Sup. Ct. (1976) [p.433]
Facts: Berry’s wife went to Israel where she met, fell in love with and had sex with Yako. Wife comes back and, based on Berry’s testimony, continuously torments him with the Yako situation, mentally and sexually. Berry strangled wife with a telephone cord after the got in an argument.
Argument: Berry claiming that his act was a result of provocation.
Defense claimed that Rachel was suicidal and that she wanted to die. Berry claims that without a mitigating provocation jury instruction, he had an unfair trial.
Holding: Court sends case back to trial with an adequate jury instruction regarding provocation. “Defendant’s testimony chronicles a two-week period of provocatory conduct by his wife that could arouse a passion of jealousy, pain and sexual rage in an ordinary man of average disposition such as to cause him to act rashly from this passion.” [p.436]
G. Cooling Time
1. MPC 210.3
Commentary regards cooling time by requiring “that there not elapse between provocation and resulting homicide sufficient time for a reasonable man to cool off.
2. Ex Parte Fraley Oklahoma Ct. of Appeals (1910) [p.445]
Facts: Dan Parker was standing outside a drug store minding his own business. The petitioner coolly walked up to him and without warning fired two shots at Parker killing him. Petitioner then walked off, came back, and continued to shoot Parker. Parker had shot the son of the Petitioner 9 or 10 months prior to his death.
Arguments: Defense claimed that he killed Parker in the heat of passion and therefore the killing was not premeditated, and hence the sentence should be mitigated to voluntary manslaughter.
Holding: The court found that Petitioner waited too long after his son’s death to show heat of passion. The cooling time of 9 or 10 months is beyond that which a reasonable man needs. Revenge is never a mitigating factor.

Significance: Cooling off time is again based on the reasonable man standard. The MPC does not give any specific allotments of time.
H. Cultural Relativism and the Reasonable Person
1.
Court has to decide whether certain cultural morals and beliefs will allow for mitigation of a crime.
2. People v. Wu California Ct. of Appeals (1991) [p.450]
Facts: Wu met her future husband in Saigon China. Evidence showed that Gary Wu married Helen for monetary reasons. They had a son together. Gary brought Helen to the U.S. where Gary’s grandmother warned Helen that Gary was not a good father and that he will not take good care of her son. The child, Sidney, was talking to Helen and told her that Gary did not care for them, etc.
Helen began experiencing heart palpitations and trouble breathing.
She went to get a rope, returned to the bedroom and strangled
Sidney, she unsuccessfully then attempted to strangle herself.
Proc History: Wu was charged with murder and after the jury trial was convicted of second degree murder.
Issue: The jury was not instructed on the relation between voluntariness and cultural background.
Arguments: Defense argues that since Wu cannot remember the actual strangulation that it could not be voluntary; thus acquitting her. They also argue a cultural defense that Wu thought that she would be helping her son by killing him and herself. Chinese culture implies that the mother can keep her child safe and take of him in the after life. Note: these two claims conflict.
Holding: Cultural background is clearly relevant on the issue of premeditation and deliberation because the act of killing occurred immediately after Sidney told her he was not loved by Wu.
Cultural background is also relevant on the issue of malice aforethought and the existence of heat of passion at the time of killing because Sidney’s words constituted provocation. Upon retrial defendant is entitled to have the jury instructed that it may consider evidence of the defendant’s cultural background.
VI. Unintentional Homicide
A. Involuntary Manslaughter
1. MPC classifies this as either reckless manslaughter or negligent homicide; accidental deaths.

2. Commonwealth v. Welansky Mass. Sup. Ct. (1944) [p.463]
Facts: Welansky maintained and operated a night club in Boston.
One night when he fell ill and was in the hospital, a fire broke out in the night club. While Welansky was in the hospital, a new
Cocktail Lounge was finished and added to the night club. When the fire broke out, most of the emergency doors were blocked or not reachable and as a result, 12 people died. Trial court found
Welansky guilty of involuntary manslaughter.
Arguments:
Prosecution argues that Welansky did “willfully, wantonly and recklessly neglect and fail to fulfill said legal duty and obligation to the said victim.”
Holding: Ct. found that to convict of manslaughter the prosecution only needs to prove wanton or reckless disregard of the safety of patrons.
Willful = Intentional
Wanton = extremely reckless
Reckless = reckless
Even thought he risk of a fire is fairly small, the probability of harm is very great. The societal benefit of his conduct = 0. Since the net social cost to society is higher than zero, he was negligent.
Lower court decision affirmed and Welansky is guilty of manslaughter.
Significance: The court gets by the “intentional” nature of manslaughter by stating that willfully does not modify the result
(death), but the act causing the result (setup of night club).
3. MPC 210.2(2c) definition of reckless : a person acts recklessly with respect to the death of another when he consciously disregards a substantial and unjustifiable risk that his conduct will cause that result. a.
Manslaughter cannot be premised on negligence. b.
MPC’s definition of negligence insists on proof of substantial fault and limits penal sanctions to cases where “the significance of the circumstances of fact would be apparent to one who shares the community’s general sense of right and wrong.” c.
MPC punishes negligent homicide as an offense of lesser grade than manslaughter.
4. State v. Williams Washington Ct. of App. (1971) [p.472]
Facts: Two Native American parents will little education were charged with manslaughter for negligently facility to supply their
17-month-old child with necessary medical attention, a result of which the child died. The Williams were afraid to take their child to the doctor because the State might take their child away. The evidence that the child was sick was irritability and a tooth infection which caused the child’s cheek to turn blue.

Holding : Court confirmed manslaughter conviction of the couple.
Court distinguished between common law manslaughter which requires gross negligence and Washington statute in which simple, ordinary negligence is sufficient for a manslaughter conviction. simple or ordinary negligence = describes a failure to exercise the
“ordinary caution” necessary to make out the defense of excusable homicide. There was no evidence that defendants were unable to take the child to the doctor.
Significance: The court would not mitigate the charge based on lack of education, and they also did not take into consideration the cultural background involved in the fear of having their child taken away. An explanation for this is that having your child taken away is better and having your child die.
B. Reckless Murder
1. MPC §210.2 (1b
) ~ criminal homicide constitutes murder when it is
“committed recklessly under circumstances manifesting extreme indifference to the value of human life.”
2. Mayes v. The People Illinois Sup. Ct. (1883) [p.484]
Facts: Husband came home somewhat intoxicated. Wife, motherin-law and daughter sat with him at dinner. He became belligerent, picked up a tin quart and threw it at the daughter. Wife started to go to bed with an oil lamp in hand. Husband threw a large beer glass with violence at the deceased. The glass stuck the lamp, scattered the burning oil and ignited her clothing. Mayes was convicted of murder and sentences to the penitentiary for life.
Arguments: Defendant argues that jury instructions were incorrect by ignoring the fact that Mayes had no intention to kill his wife. Defendant argues that he meant to throw the beer glass out the door.
Holding: The court found that the jury did not error in weighing the evidence and the original jury instruction was correct. “Malice is an indispensable element to the crime of murder. Malice shall be implied when no considerable provocation appears, or when all the circumstances of . the killing show an abandoned and malignant heart.
”
Significance: Malice does not imply awareness, just lack of care.
Since the jury found that there was intent to do harm, Mayes should have foreseen the possibility of death.
3. People v. Protopappas California Ct. of App. (1988) [p.491]
Facts: Dentist and oral surgeon was convicted of three counts of
2 nd
degree murder for killing patients. Patients were very sensitive

to anesthesia, Protopappas was aware of this sensitivity and still gave them a massive overdose of anesthesia.
Arguments: Defense objects to jury instruction because it is lacking awareness of risk.
Holding: Court presumes that he was careless due to financial reasons. There was a high probability of death, an anti-social purpose and wanton disregard for human life in his actions.
Significance: Usually doctors are afraid of tort liability, not criminal. But the court in theory is trying to deter doctors from acting carelessly in the future.
4. Berry v. Superior Court California Ct. of App. (1989) [p.492]
Facts : Berry kept his pit bull tethered near his house protecting
243 marijuana plants. He told the neighbors the dog was dangerous, but reassured them he would be fenced in. There existed no evidence that the dog had ever attacked a human, but pit bulls are usually bred to by “fighting dogs”. One day, when the fence was partly open, the pit bull mauled a neighbor’s two and one-half year old boy to death.
Holding: The blameworthiness of Berry’s “conduct can be described as involving a high degree of probability that it will result in death where accomplished with an awareness of one’s societal duties is not disproportionate to the sanctions which may be imposed for second degree murder.”
Two requirements for 2 nd
degree murder: defendant’s extreme indifference to the value of human life and awareness either (1) of the risks of the conduct, or (2) that the conduct is contrary to law.
Because of California statute, it was illegal to have a pit bull, also the marijuana plants were illegal.
C. Homicide in the Course of Another Crime
1. First-Degree Felony Murder a. MPC 210.2 (b ) ~ Felonies are robber, rape, arson, burglary, kidnapping or felonious escape. b. People v. Stamp California Ct. of App. (1969) [p.498]
Facts: Stamp and two others robbed an amusement company. Stamp ordered employees on the floor and went into the office of Carl Honeyman with a gun. 15-20 minutes after the robbery, Honeyman had a fatal heart attack. Honeyman was obese, sixty-years old and had a previous hear condition. The three men were given a life sentence on the murder charge based on the felony-murder statute.

Holding: the court did not find merit in the defendants’ claim that the death of Honeyman was unforeseeable.
Under the felony-murder rule of section 189 of the Penal
Code, a killing committed during a robbery is murder in the first degree “whether the killing is willful, deliberate and premeditated, or merely accidental or unintentional, and whether or not the killing is planned as a part of the commission of the robbery.” The Court further stated,
“When a robber enters a place with a deadly weapon with the intent to commit robbery, malice is shown by the nature of the crime.”
Significance: Causation is defined very loosely by this court. c.
Purpose of felony-murder statutes is deterrence, both specific and general. We basically want to prevent violent felonies. We expect an individual to weigh the cost and benefit of a crime, and the cost of the sentence, and to choose the least violent method of reaching his/her end. d. Mens rea ~ felony murder takes the intent element our of the crime. The felony makes up for the intent. e. Statistics have shown that while the felony-murder rule does help deter felonies, the deterrence is not substantial. f. MPC approach : i . Most states have felony murder rule into 2 categories, 1 st and 2 nd
degree. 1 st
degree is limited to statutorily enumerated felonies. ii.
MPC does not like felony murder rule or this separation. iii.
Recklessness and indifference are presumed- so it’s reputable by the defense. So defense has the burden to show that he/she was NOT reckless or indifferent.
2. The Reach of the Felony-Murder Rule a.
The doctrine is not limited to deaths that are foreseeable. b. People v. Gladman N.Y. Ct. of App. (1976) [p.515]
Facts: Gladman walked into a convenience store and stole
$145 in cash. Afterward, Gladman walked around the neighborhood, and to the bowling alley. As he walked into the parking lot (about 20 minutes later), he saw a police car pull in and he hid under a car. When the policeman found him, Gladman shot him and mortally wounded him.

Issue: Whether the jury was properly permitted to conclude that the shooting of Officer Rose occurred in the immediate flight from the delicatessen robbery.
Holding: Set up a test: Must consider 1)time and place of the felony, 2) if the individual still has the burglarized item and 3) Res Gestae Theory ~ whether the killing was committed in, about and as a part of the underlying transaction. Also questioned whether offender has found temporary safety or refuge. “In this case, the jury could properly find, as a question of fact, that the killing of
Officer Rose occurred in immediate flight from the delicatessen robbery.”
3. Misdemeanor Manslaughter a.
Most states have abolished this rule. b. United States v. Walker D.C. Sup. Ct. (1977) [p.512]
Facts: Defendant carrying a pistol without a license, dropped it in the stairwell of an apartment, the gun went off, and fatally wounded a bystander.
Holding: Ct. defined involuntary manslaughter as: (1) an unlawful killing of a human being (2) with either (a) the intent to commit a misdemeanor dangerous in itself or (b) an unreasonable failure to perceive the risk of harm to others. Since Walker did not have a license for the gun, which is a misdemeanor, the charge got pushed up to manslaughter. Causal argument- had Walker not violated the licensing law, he would not have gotten a gun and accident would not have happened. c. People v. Washington
Facts: Defendant was an accomplice in a robbery where the robbery victim shot and killed the co-felon.
Three theories of liabliltiy:
1.
Proximate Cause Theory: any death which results from the felony that is foreseeable will be assigned to the felon (i.e. Harrison, Almeida, Thomas)
2.
Protected Persons Theory: imposed liability for the deaths of innocent persons, but not for co-felons (i.e. redline, Def. attempted this defense)
3.
Agency Theory: requires proof that the killing was done by the felon or his accomplice, in furtherance of their common design (Washington Ct. decided this)
(second-degree FM rule is a possibility; not FM rule)

Holding: In order to be liable for a death, the felon must have malice, which is evidenced by: 1. the felon actually commits the killing or his agency/accomplice commits the killing; 2. the felon initiates the gunfire; 3. the killing must be committed in the furtherance of the offense. Wants to deter killings during felonies.
Dissent: Wants to deter armed inherently dangerous felonies. Fundamental disagreement with the Felony murder rule and its purpose.
Point to remember: Just because D can’t be charged with felony murder doesn’t mean malice murder or extreme and reckless murder couldn’t apply. Also, which theory you use depends onyour purpose for trying to get felony murder. d. Duration of Felony : most courts hold that a killing is felony murder if it is committed in immediate flight from the crime.
Immediate flight ends when D reaches temporary safety.
4. Second-Degree Felony Murder a. A felon can be held for second-degree murder while committing a felony not enumerated in the felony-murder statute of the state as long as the felony is inherently dangerous to human life. b. People v. Patterson
Facts: Defendant purchased and provided alcohol and cocaine to a woman who ultimately died from consumption of it.
Holding: Court struggled with the statute, which included many different drugs that each posed different risks to human life. Had to look at things in the abstract.
Remanded to trial court to determine inherent dangerousness.
5. Merger Rule a. For a felony to qualify for second degree felony murder, the felon must have an independent felonious purpose apart from the killing. b. Example: the intent to inflict bodily injury in a battery is not distinguishable from the purpose of killing: assaulted battery would merge into homocide; standard burglary and rape do not.

c. People v. Caffero
Holding: Court ruled that felony child abuse was not inherently dangerous to human life therefore second degree
FM rule doesn’t apply. d. State v. Lucas
Facts: Defendant abused child.
Holding: Child abuse is inherently dangerous, but does not
VII. The Death Penalty
A. Historical Summery
1. Three Phases have an independent felonious intent, so it merges into the homicide charge and would not qualify for second degree felony-murder.
Dissent: Compared felony child abuse to torture. a. Automatic Death Penalty: roots in English common law. To get off, jury had to acquit or king/queen had to grant clemency.
Drawbacks: jury nullification, gradation of culpability, possibility it wouldn’t work to deter. b.
Discretion: Gave discretion to judges and juries based on first degree murder definitions. Drawbacks: discrimination, especially against black rapists.
Dissatisfaction with it: questions about constitutionality
Gregg v. GA : 8 th
Amend., cruel and unusual, judges said we have to look at evolving standards of decency.
McGautha v. CA : due process c. Guided Discretion: Now the norm. had to be put in place after
Furman v. GA , which did away with unguided discretion. Coker v. GA added idea that death penalty is unconstitutional for any crime other than murder. (compare recent LA case: legislature has made rape of a child grounds for the death penalty)
2. Is the death penalty cruel and unusual punishment a. the Supreme Court has not held that it is because 1. the framers clearly saw as viable punishment, 2. modern society does not consider the death penalty cruel and unusual punishment as evidence by states in which the death penalty is voted on and wins and the number of juries which continue to issue the death penalty.

b. in some cases the death penalty may violate the 8 th
amend. because it is disproportionate to the offense. (rape of an adult woman)
3. Theories of Punishment underlying the death penalty a. Incapacitation: compare to life in prison (just as incapacitating, however doesn’t take into consideration additional crimes which may be committed in prison) b.
Retributive theory: different from revenge? c. Deterrence: but look at average murder sentence.
4. Current System a. the death penalty may only be considered for homicide offenses b. separate sentencing phase in which any and all evidence may be considered (even evidence excluded from the trial) c.
jury selection excludes any jurors who are anti-death penalty, which makes the juries pro-prosecution d. juries consider mitigating and aggravating factors: must find at least one aggravating factor; the factors are construed very narrowly.
B.
MPC 210.6
: Full blown sentencing trial with judge or jury. No federal or state rules of evidence, no exclusionary rules. Can bring in aggravating and mitigating circumstances. Must find at least one aggravating circumstance and that there are no mitigating circumstances which call for leniency. (p. 551).
VIII. Justification and Excuse a. Justification: airtight self-defense b.
Excuse: airtight duress c.
ways they may differ: wrongfulness, legality, burden of proof, third parties
IX. Defensive Force
A. Three forms of force defense a. Self-defense b. Defense of others c. Defense of property

B.
Requirements for self-defense a.
b.
Belief must be reasonable
D must have reasonably believed he was threatened with physical harm. c. Threatened harm must be imminent. d. Threatened harm must be unlawful (from police doesn’t count) e. Force used was necessary to prevent harm f. Deadly force may only be used when D reasonably believes that the other person was about to inflict death or great bodily injury upon her. g. Duty to retreat if safely possible unless in your home.
C. People v. La Voie
Facts: LaVoie was driving late at nite when a car of young people started to harass him. They rammed his car and pushed it. They all got out of the cars and began yelling. As one guy moved toward LaVoie, he shot him.
Proc History: The trial court directed the jury to return a verdict of not guilty (no reasonable jury could convict with this evidence). The district attorney objected, writ of error, and this court affirms the judgment.
Issue: self-defense-was his belief that bodily harm was threatened honest, sincere, and reasonable? Imperfect self-defense?
Holding: D had a right to defend himself against threatened assault from those who had utter disregard of his rights.
Significance: Sometimes if the facts look like imperfect defense (was he really threatened with imminent deadly force?) the jury gives acquittal because they are sympathetic and sick of crime.
D. MPC § 3.04
– Use of Force in Self-Protection
(1) the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.
There are several limitations on justifying the necessity for use of force.
Deadly force is not justifiable unless the actor believes that such force is necessary to protect himself against death, serous bodily injury, kidnapping or sexual intercourse compelled by force or threat.
E. State v. Leidholm
Facts: Husband and wife constantly fighting. During one bad fight, wife tried to call police, husband kept pushing her down. After husband went to sleep, wife stabbed him husband to death.
Proc History: Leidholm appealed from the judgment of conviction of manslaughter.
Issue: Didn’t want manslaughter option in jury instructions. Jury thought belief was unreasonable, she thought was reasonable. Jury used objective

standard: reasonable man. She wanted subjective standard: reasonable battered woman.
Outcome: conviction reversed and remanded to court for new trial with new instruction.
Note: Even though the case remanded in Leidholm, most courts reject self-defense when the husband is sleeping at the time when wife slays him; typically find manslaughter. Also, when husband is awake, they tend to find manslaughter as well.
Sincere, reasonable, inaccurate: acquittal (excuse)
Sincere, reasonable, accurate: acquittal (justified)
Sincere, unreasonable, inaccurate: MPC says negligent or reckless murder
Insincere, dishonest belief: intentional homicide
(hard to know after the fact if belief was accurate. Accurate: justified;
Inaccurate: excused)
F. Battered Victims Claiming Self-Defense
1. Problems with defense a. Threatened harm is not imminent. Usually attack is over, and victim faces no imminent harm. b. There are options to using force. Some claim since she could have left, the use of deadly force was unreasonable.
2. Responses a. Battered woman syndrome: experts testify that battered persons come to believe that leaving is not an option and that further violence is inevitable. b.
Need to consider defendant’s position: must be evaluated in light of person’s physical and psychological characteristics, sometimes a disadvantaged position
G. Retreat Rule
1. Usually expected to retreat if you can retreat safely.
2. MPC § 3.04(2)(b)(ii)(1): if attack occurs in home, no retreat necessary from home
H. People v. Goetz
Facts: Goetz riding NY subway. Group of 4 guys on with him. One asks him for $5, he pulls out his gun and shoots all four of them.
Proc History: lower court dismissed case, prosecutor appealed.
Indictment was reinstated on appeal.
Issue: self defense based on reasonable man in his situation or was it reasonable to him? Difference between this case and Leidholm is how they label standard. This court says objective, but considers his background (which includes multiple muggings which is why he was so defensive now).

Significance: A lot depends on the objectivity standard you use. Can you really say that he reasonably faced imminent life threatening harm? No way. I think again that people can relate and are sick of crime also based on race=jury nullification. They do convict him for weapon violation.
I. United States v. Peterson
Facts: D at home, 3 guys drive up to his house to steal the windshield wipers off his car. D went inside, came back out with a gun as guys were leaving. He started to yell and threaten them. One guy got back out of the car, walked toward D, D shot him in the face.
Proc History : Lower court convicted him of manslaughter. Confirmed on appeal.
Issue: Question about jury instruction regarding self-defense, aggressor, retreat. Once D came back outside with the gun, he became the aggressor and gave up the right of self-defense. He should have retreated in the first place. Why use deadly force when they’re only stealing your wiper blades?
Under MPC, you must retreat in your own home if you are the aggressor.
X. ATTEMPT
A. Reasons for Punishment
1. Utilitarian Approach a. Anyone who attempts a crime is dangerous and presents an ongoing threat to the community. b. Lets the police intervene in order to prevent the consummation of an offense c. Deterrence effect offense
2. Retributive Approach a. One who tries, but fails, to commit a crime is just as morally culpable as one who succeeds.
B. MPC §5.01:
Punishes attempts the same as completed offenses, except for capital felonies or first degree felonies (death penalty too severe for attempt)– compromise between 2 competing theories; an actor is guilty of attempt is she believes that the result will occur, even if it were not her conscious object to cause it.
1. Utilitarian – attempt should be punished less than completed crime a. reduced punishment serves as an incentive to the actor to desist before completing the attempt
2. Retributive – attempt should be punished the same as the completed a. luck should have no role to play in setting the punishment of wrongdoing

crime
3. Section (a) and (b): offense not completed
4.
Section ©: offense interrupted, substantial steps taken
C. Mens Rea
1. Consists of 2 elements a. intent to commit the acts or cause the result constituting the b. intent necessary for completed crime
2. Mens Rea for attempt may be higher than the mens rea for the completed crime because attempt is a specific intent crime, while some completed crimes do not require specific intent a. reckless murder – shooting blindly into a crowded room b. felony murder – there is no attempted felony murder because there is not specific intent to commit murder c. attempted voluntary manslaughter is possible
D. State v. Lyerla
Facts: Lyerla fired three shots at a truck full of teenage girls. Only one bullet entered cab of truck and killed one girl. Convicted of 2

murder and
2 charges of attempted 2
 murder. Can a person be convicted of attempted
2
 murder since it has a reckless element?
Holding: Logically impossible to attempt 2

murder. 2
 murder has a reckless element attached to it. Cannot form intent based on recklessness.
Illogical to say that a person can intentionally commit an unintentional crime.
Dissent: Allows 2

attempt conviction. Focus on voluntariness of the act.
Constructive intent is involved with reckless crimes, so you can have intent.
Minority view adopted by many states
E. Actus Reus
1. People v. Murray
Facts: D attempts to contract an incestuous marriage with his niece. How far must D go to be guilty of attempt?
Holding: The attempt contemplated by the statute must be manifested by acts which would end in the consummation of the particular offense. Substantial step test by MPC: looks at what has already been done and determines if it is enough.
2. Tests other than MPC test a. “Last Act” Test i. Definition: the person has performed all of the acts that she believed were necessary to commit the target offense ii. Criticism: almost impossible to prevent the actual commission of the crime

iii. Strength: easy to apply, bright line rule b.
“Physical Proximity” Test i. Definition: an attempt does not exist unless an actor has it within her power to complete the crime almost immediately c. “Dangerous Proximity” Test i. Definition: attempt occurs when an act is so near to the result that the danger of success is very great ii. Criticism: there is no clear point f proximity iii. Example: People v. Rizzo d.
“Indispensable Element” Test i. Definition: no attempt if the actor has not yet obtained control of an indispensable feature of the criminal plan ii. Criticism: arbitrary test; the presence or absence of an indispensable element says little about the actor’s culpability. e.
“Probable Desistance” Test i. Definition: no attempt unless the actor reached a point where it was unlikely that he would have voluntarily desisted from his effort to commit the crime. ii.
Criticism: courts try to determine the “point of no return” of an ordinary person, however ordinary people do not commit crimes, so the test is superficial. f.
“Unequivocality” Test i.
Definition: attempt occurs when a person’s conduct, standing alone, unambiguously manifests her criminal intent.
3. People v. Rizzo
Facts: Four men drove around looking for victim they intended to rob, but never found him. Arrested. Does this constitute crime of an attempt to commit robbery in the first degree.
Holding: In the absence of a victim, the men were not dangerously close to committing the crime. Used Dangerous Proximity test.
Comments: This opinion is hated by the police force: completed good investigatory work prior to the act, but let off. Forced to catch red-handed instead of preventing act. criminal intent
4. MPC §5.01 (2) “Substantial Step” Test a. a substantial step must strongly corroborate the defendant’s b. the D’s conduct does not have to by itself manifest criminality, rather the Ds conduct, considered in light of all circumstances, must add significantly to other proof of criminal intent.

F. Abandonment
1. c. list of circumstances, if established, allow the jury to determine if the D has taken a substantial step; a verdict may not be overturned on the ground that the step was insubstantial
Retributive idea: no longer dangerous once a person abandons a crime; negates intent
2. MPC §5.01(4): allow for abandonment defense if: a. actor abandons her efforts to commit the crime or prevents it from being committed and b. the actors conduct manifests a complete and voluntary renunciation of her criminal purpose. c. NOT a defense if abandonment is wholly or partially 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. d. NOT a defense if abandonment results from an increased probability of detection
3. People v. Staples
Facts: Man rented an office in a building above a bank vault.
Brought tools and other items into the office that could be construed to be useful in helping him break into bank. Drilled holes into floor above vault. Does not do anything more towards act. Landlord finds and removes equipment; man arrested.
Holding: Established that D intended to commit a specific crime, committed an act that caused harm or sufficient danger of harm, it is immaterial that he had a change of heart and did not complete the crime.
Based on MPC it is possible that he would not have been convicted; it would depend on his motivation for abandonment
(true change of heart or knowledge of discovery.) MPC allows for complete and voluntary renunciation of criminal purpose. (few cases actually succeed with this defense)
G. Solicitation (attempted conspiracy)
1. Solicitation is the request to have another person commit the crime a. a request for assistance in a crime is not solicitation
2. Actus Reus a. the act is when one person invites, requests, commands, hires or encourages another to commit a particular offense.

b. neither the solicitor nor the solicited party needs to perform any act in furtherance of the crime c. act occurs even if the second party refuses or does not agree to participate, or the communication is not received at all.
3. Use of an innocent instrumentality a. NOT solicitation because the innocent is not committing a crime because she lacks the necessary mens rea to commit a crime
4. People v. Lubow
Facts: D attempts to cause deponent to commit the grand larceny by obtaining precious stones. Deponent goes to police with proposal. Police have deponent record tape conversations with D.
(“bust out operation”)
Holding: Sufficient evidence in the record to find that D’s intended deponent to engage in conduct constituting a felony.
5. MPC §5.02 Criminal Solicitation a. A person is guilty of solicitation if with the purpose of promoting or facilitating a crime he commands, encourages or requests another person to engage in specific conduct that would constitute such crime or an attempt to commit such crime or that would establish his complicity in its commission or attempted commission. b. Renunciation is an affirmative defense if the actor persuades the person not to commit the crime or otherwise prevented the commission of the crime.
6. Punishment: Solicitation is treated the same way as attempt; it results in the same penalty as completing that particular crime, except that soliciting a felony of the first degree is punishable as a felony of the second degree.
7. MPC §5.05(3): prohibits a person from being held liable for solicitation and attempt.
8. State v. Davis
Facts:
D wished to procure murder of mistress’ husband. Tried to have Leverton obtain services of an ex-con to kill mistress’ husband. Instead Leverton went to police and discussed proposition with them. Dill, policeman, posed as ex-con.
Arranged situation in which Dill could kill mistress’ husband. D convicted of attempted murder, but never charged with solicitation.
Holding: Ct. conceded that D had solicited the killing, but that his actions did not cross the line from preparation to attempt. It was

not shown that Dill intended to commit murder...therefore could not attempt.
H. Impossibility
1. Common Law Approach a. Legal Impossibility is a complete defense i. Definition: the intended act is not a crime b. Factual Impossibility is not a defense i.
Definition: a person’s intended end constitutes crime, but she fails because of a fact unknown to her, or beyond her control (picking an empty pocket, shooting at pillows on a bed that you thought your neighbor was in) c. Rational Motivation Test: Fletcher: if rationally motivated actor would have done act regardless of legality of act
2. MPC§5.01(1) a. actor is guilty of attempt if the circumstances were as he believes them to be
3. Booth v. State
Facts: Man receives what he believes to be stolen goods. The goods are not actually stolen. Can D be convicted of attempting to receive stolen goods?
Holding: D believed it to be stolen and planned to accept it therefore he is liable. (MPC).
Comments: Liable under factual impossibility, not under legal impossibility (not stolen). Under Fletcher’s theory he would be acquitted because the coat is cheap and a reasonable person would have purchased it.
4. People v. Dlugash
Facts: Man shoots at a person who, unknown to the actor, is already dead.
Holding: Guilty under MPC because if the circumstances were as he thought them to be, the actor would have been alive and he would have still shot him.
5. In class example
Facts: Actor attempts to smuggle currency into a country because he believes it is illegal to take that much money into the country.
It actually is not illegal.
Holding: Not liable under MPC because true legal impossibility.
Action is not illegal, even though it is in his mind.

Explanation: Under 5.01(1)(a) there is a conduct requirement.
Conduct must constitute a crime to be liable. This conduct would never constitute a crime therefore not liable.
6. Relationship to accomplice liability a. solicitation is one way in which a person may assist another in the commission of a crime. b. example: D solicits X to murder V, D’s solicitation makes him an accomplice in the murder. X murders V. i. If D is convicted for murder as an accomplice, he will not be punished for the solicitation, because it merges into the murder charge. ii. If X attempts to murder V, but fails, Ds solicitation merges with the attempt. iii. If D solicits X, and X agrees, but X does not commit or attempt the murder convicted of conspiracy to murder V.
Solicitation merges with the conspiracy charge. iv. If D solicits X, but X refuses, D is guilty of solicitation.
7. Key points to remember about solicitation under the MPC a. can be liable for solicitation to commit an attempted crime. b.
an actor is guilty of solicitation if he requests assistance in a crime, because the assistant would be guilty as an accomplice for the crime. c.
an uncommunicated solicitation is still a solicitation d. cannot be charged with solicitation and attempt.
XI. COMPLICITY
A. Complicity differs from conspiracy, attempt, and solicitation in that it merely requires that a crime be committed, and not that another person be punished for that crime. It is not a crime, but rather a way of committing a crime. (you do not charge complicity, charge offense b/c either committed or aiding and abetting)
B. Actus Reus
1.
2.
3.
4.
5. community of purpose and an overt act shared purpose does not need to be communicated accomplices act could be just encouragement, or agreeing to help
S is guilty as an accomplice if he solicits P
S is an accomplice if he agrees to aid, but does not fulfill his promise
C. State v. Ochoa
Facts: Velarde, Avitia and Ochoa were charged with 2
 murder for the killing of a sheriff in a riot that began when a controversial prisoner was moved to jail. A deputy following the prisoner, Boggess, was assaulted by
Avitia and Ochoa. His pistol was taken, and presumably used to shoot the

sheriff. The distinction between aiding and abetting and being the principal in a murder had been abolished in New Mexico. Avitia and
Ochoa continued their assault on the deputy.
Holding: By continuing their assault on the deputy and preventing him from assisting the sheriff after the shots were fired, formed an intent to aid and abet the killer. All that needs to be shown is a causal connection.
Intent to assist killers and contributed to help in some way.
D. Gains v. State
Facts: Three men robbed a bank, and got into a car being driven by D.
The driver had not been inside the bank, and the three men were not carrying their guns or wearing masks in the parking lot. D drove from the parking lot slowly and obeying all traffic rules. When a police car pulled close, the robbers started talking to the driver, and then bent down. The driver then led the police on a chase, and one of the passengers fired at the police car.
Holding:
Since a reasonable inference of D’s innocence could be made, he could not be convicted of aiding and abetting the robbery. The evidence that he knew of the robbery before being informed of it was circumstantial.
E. State v. Tally
Facts: Tally, a judge, was accused of aiding and abetting the shooting of the man who had an affair with his sister in law. Tally’s brothers in law rode after the train on which the deceased was riding. A relative of the deceased sent a telegram to the town that the train was going to, and Judge
Tally, who had been waiting in the telegram office, sent one immediately asking the telegraph operator to ignore the relative’s message of warning.
After instructing the operator at the other end to detain Ross (the deceased). Ross was shot by the brothers in law (the skeletons). The court asked 3 questions:
1. Did Tally do anything to help the skeletons?
2. Was it essential to his guilt that his act should have contributed to the death of Ross?
3. If so, did his act contribute to the death of Ross?
Holding: 1. Yes. The whole town knew that there would be a gunfight; in fact, someone suggested to Tally that he send help, to which he replied that the Skeltons could take care of themselves. He instead sent a message to keep Ross from being warned.
2. Tally’s action would be found to have aided and abetted if his actions helped the killers in the commission of their crime. This help did not need to be but-for help, but rather assistance that made it easier for the killer to kill.
3. The reason that the message was not delivered in time to Ross was the judge’s command to the telegraph operator in Stevenson to not deliver it.
Ross’ ignorance as to the existence and number of ambushers was

therefore traceable to Tally’s action. While the murder probably would have happened anyway, the court believed that Tally’s action removed the one chance that Ross had. Tally’s aid might not have been causally contributive to the death, but it was aid.
F. Hypotheticals involving Tally
1.
If Ross’ cousin had not come, could Tally have been convicted? a. He committed no act-but he stood ready to give aid. b. MPC §2.01: accomplice liability attempting to aid is sufficient to establish
2. What if the telegraph operator refused to send the 2 nd a. MPC §2.01(3): Tally could still be convicted
telegram?
3. What if Ross had escaped? a. MPC §5.01(3): If the crime is neither committed nor attempted, he can be convicted. b. MPC §5.01 and §2.06(3)(a)(iii): if the crime is attempted but not committed.
4. If the Skeltons had refused to kill Ross after Tally urged them to, what could he be convicted of? a. MPC §5.02:
Solicitation. If the brothers agreed and took substantial steps, Tally would be guilty of attempt.
5. If Tally had waited at the post office, but never sent a telegram? a. MPC §2.06(3)(a)(ii): attempting to aid
6. What if Tally sent the telegram, but it was not successful? a. MPC §2.06(3)(a)(ii): would be liable
MPC §2.06(3)(a)(i): must have some commission or attempt of commission of crime by principle.
MPC §5.02: doesn’t require commission of crime
G. Abandonment defense
1. MPC §2. 06(6)©: complicity must be terminated before the crime begins and must notify law enforcement
H. Mens Rea
1. MPC §2.06(3)(a):
A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of the offense, he....
2. Accomplice must have purposeful intent regarding the principals offense.

3. Hypotheticals: a. S drives P to a store where P commits a robbery
1. S is guilty of his act of assistance if committed with the purpose of facilitating the offense.
2. S is not guilty if he did not know what P intended to do in the store b. S, a merchant, sells dynamite to P, knowing P intends to blow open a safe
1. S is not an accomplice unless it was his conscious object to facilitate the commission of the offense.
4. Mens Rea with Respect to the Principal’s criminal intent only a. Mowery v. State
Facts: D convicted of murder without malice. D and others stole goods from a store. Owner demanded payment. Chased after D and others. Shupack, one of the others, struck a fatal blow to owner. D then jumped on him, beat him in the face and head as he lay unconscious on the ground. Does D share principal’s criminal intent?
Holding: No. Not clear that D was intending to kill owner.
D did not know of unlawful intent. May of aided or encouraged action, but did not know of intent. Required mental state is knowledge or purpose with respect to
Principal’s intent.
5.
Mens Rea with Respect to the Principal’s Criminal Intent and Mens Rea with Respect to the Facilitative Effect of Accomplice’s Conduct a. People v. Beeman
Facts: D appeals from a conviction based on aiding and abetting; didn’t share intent.
Holding: The law requires proof that an aider and abettor act with knowledge or the criminal purpose of the perpetrator and with an intent or purpose either of committing, or encouraging or facilitating commission of, the offense. b. People v. Kessler
1. mens rea is lower than we’ve seen (negligence), but can argue purpose or knowledge with respect to main offense.
(intent of promoting or facilitating) and negligence for any offense reasonably foreseeable. (furtherance of intended act)

6.
Mens Rea with Respect to the Principal’s Criminal Intent and Mens Rea
Required for the Principal’s Crime a. Wilson v. People
Facts: Wilson thought that Pierce had taken his wrist watch. In the course of the night Wilson and Pierce drank. Pierce and
Wilson came up with the idea of breaking into a drugstore.
It was originally Pierce’s idea. Immediately after Pierce was inside the store, Wilson called the police to come to the store. Wilson claims that his connection with the burglary was for the purpose of getting even with Pierce for taking his watch, and that was the only way he hoped to recover it.
He claims he lacked criminal intent to feloniously burglarize or steal.
Holding: Wilson did not share criminal intent. He had purpose with respect to Pierce committing the crime.
Lacks mental state with respect to larceny. Reversed and remanded for new trial.
7. Mens Rea Required for the Principal’s Crime and Mens Rea with
Respect to the Facilitative Effect of the Accomplice’s Conduct. a. State v. Etzweiler
Facts: D loaned car to friend knowing he was intoxicated.
He recklessly collided with a car driven by Susan Beaulieu.
As a result of the accident 2 passengers in the car were killed. D was charged with negligent homicide. Can D be held as an accomplice?
Holding: D cannot be an accomplice to a negligent homicide. Need intent. b. Reckless and Negligent Crimes i. MPC §2.06(4): when causing a result is an element of a crime, a person is an accomplice in the commission of the offense if he was an accomplice in the conduct that caused the result, and acted with the culpability, if any, regarding the result that is sufficient for commission of the offense. ii. Three step test to determine if §2.06(4) applies: aa. determine Ps potential responsibility (eg. Neg. homicide) bb. was S an accomplice in the conduct that caused the result (yes, by encouraging speeding, he purposefully promoted the conduct of speeding) cc. did S act with the culpability in regard to the result (yes, negligence)
I. Attempting to Aid

1. S may be accountable to P if he attempts to aid in a crime, even if his aid proves ineffectual.
2. MPC §5.01(3): a person who engages in conduct designed to aid an offense that would establish complicity under §2.06 if the crime were actually committed is guilty of attempt even though the crime is not committed or attempted.
J. Relationship between Principal and Accomplice
1. Accomplice can be liable even if P is found not guilty a. Accomplice can be found liable for a more serious offense than
P.
2. if P is justified (self-defense), accomplice is also justified
3. if P is excused, accomplice is still liable
XII. CONSPIRACY
A. MPC §5.03:
1. A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he: a. agrees with 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.
2. Liable for co-conspirators acts as long as D knows that co-conspirators are involved and he is involved in the same crime.
6.
Renunciation requires thwarting the success of the conspiracy and a voluntary renunciation of his criminal purpose.
B. We want to punish conspiracy because it is more difficult to back out, it is inherently more dangerous, and it allows prevention (police can intervene at a much earlier stage than under attempt law)
C. Conspiracy is an independent crime (unlike complicity)
1. However, under the MPC, a person may not be convicted and punished for both conspiracy and the object of the conspiracy or an attempt to commit the target offense, unless the prosecution proves that the conspiracy involved the commission of additional offenses not yet committed or attempted.
2. Example: if D1 and D2 conspire to rob Bank1, and then do so, they may be convicted for either robbery or conspiracy but not both. If D1 and D2 conspire to rob banks 1,2 and 3 and they are arrested after robbing Bank1, the conspiracy does not merge with the completed offense.
3. An independent offense, inchoate crime.
D. Elements of the crime
1. Agreement

a. b. c. can be spoken or unspoken must have a shared intent and mutual goal
MPC: four types of agreements fall within the definition of conspiracy i. ii. agreement to commit an offense iii. iv. agreement to attempt to commit an offense agreement to solicit another to commit an offense aid another person in the planning or commission of the offense d. MPC: the object of the agreement must be a criminal offense
2. Act a. b. sometimes, the act of agreeing counts other times, just a small act is necessary c. MPC: an overt act in pursuance of the conspiracy is needed for misdemeanor or third degree felonies. No act requirement for first or second degree felonies.
E. MPC §5.05(3): an actor can be convicted of only one of the following crimes:
1.
2.
3. attempt solicitation conspiracy
F. State v. Verive
Facts: Attempt to dissuade a witness and conspiring to dissuade a witness.
Can D be held liable for both crimes?
Holding: Conspiracy involves intent, an agreement between 2 or more people, plus an act. Attempt involves mens rea for offense plus substantial step towards commission of crime. Must test to see if either involves an additional fact that would make them two separate crimes. (Blockburger test) The act must be significantly different to distinguish the 2 crimes.
Find that conspiracy focuses on the agreement itself. Any act is sufficient to show conspiracy so long as it is in some way a furtherance of the crime.
Attempt focuses on the steps taken towards the act of the crime. It must be more
than preparatory. Thus conspiracy and attempt are 2 distinct crimes and can be charged for both under the statute.
Note: some jurisdictions disagree and treat conspiracy as a lesser included offense of attempt. MPC agrees with this.
G. Griffin v. State
Facts: Officers went to scene of car accident. D was involved in accident.
Officer inquired into accident, where there was a crowd of people gathered, and D started attacking officer. Officer countered with mace to

no avail. Group then surrounded officer and began attacking him. Was there a conspiracy against officer?
Holding: It is not necessary for a conspiracy to be shown by direct evidence, and that it may be proved by circumstance. It may be inferred even though no actual meeting among the parties is proved as long as it can be shown that 2 or more persons pursued by their acts the same unlawful objectives, so that there acts were in fact connected. Don’t need explicit agreement.
H. People v. Lauria
Facts: D owned phone service which 3 prostitutes used for their business.
Is D guilty of conspircacy to commit prostitution?
Holding: Need knowledge of the illegal use of the goods or services and the element of intent to further that use must be present in order for the supplier to be guilty of conspiracy. D had knowledge of the illegal use of his phone service. Intent can be inferred from knowledge in certain circumstances: 1. D has acquired stake in venture; 2. no legit use for goods or services exist; 3. volume of business with buyer is grossly disproportionate to any legit demand or when it amounts to a high proportion of the sellers total business. (none of these are true in this case)
Conclude that knowledge without more does not establish intent with regard to misdemeanors. (different standard with felonies; knowledge is enough to convict of felony).
I. United States v. Feola
Facts: Assault of a federal officer (undercover as drug buyer)
Holding: Mens rea for assault of a federal officer is purpose (according to statute), but in this case identity of the victim as a federal agent was strict liability. No defense that D did not know it wasn’t a fed. Agent. In drug trafficking offenses should be wary of federal officer being present. Mens rea for substantive offense still same as mens rea for conspiracy to assault a federal officer.
J. United States v. Diaz
Facts: Conspiracy to distribute cocaine, possession and distribution of cocaine, and use of a firearm in relation to the commission of a drug trafficking crime. D claims that he cannot be guilty of firearm since he was not carrying it.
Holding: D is guilty of possession of fire arm under the Pinkerton rule.
(not recognized by MPC). Pinkerton says that a conspirator is liable for anything that is a foreseeable consequence of an illegal act, so long as it is in furtherance of the conspiracy and within the scope of the conspiracy.
K. Multiple v. Single conspiracies
1. spoke and wheel
2. chain

XII. CRIMINAL LIABILITY OF CORPORATIONS
A. Respondeat superior
1. A corporation may be held criminally liable for the acts of any of its agents if an agent: a. commits a crime within the scope of his employment with the intent to benefit the corporation.
2. MPC §2.07(1)(a): relates to scope of employment, benefit of corporation
3. MPC §2.07(1)(b): pertains to omissions, failure to perform statutory duty
4. MPC §2.07©:
Requires reckless toleration on part of management.
Must have an offense defined in MPC (malum in se) Defines types of conduct engaged in by corporate officials that will result in charging the offense to the entity.
5. State v. Christy Pontiac-Gmc, Inc.
Facts: Car dealership. Through acts of corporate employees there were forged rebate applications. Can a corporation be held liable for a specific intent crime?
Holding: The legislature has not expressly excluded corporations from criminal liability and therefore its intent was to include corporations within the definition of persons in the code. To hold a corporation liable the prosecution must show that: the act was done by a corporate agent with substantial responsibility OR the act resulted from lax corporate control OR the employee did the act within the scope of his employment. Thus Christy can be held liable.
6. United States v. Hilton Hotels Corp.
1.
Establishes liability of corporations even if there is an express written policy against a specific act.
2.
MPC§2.07(5):
built in defense of due diligence (burden of proof on D)
3. existence of statutes or written policy may have mitigating effect
7. Commonwealth v. McIlwain School Bus Line
Facts: bus driver ran over and killed a student getting off the bus.
Can the corporation be held liable for homicide?
Holding: Misdemeanor (traffic violation-no mirrors) + causation of death leads to homicide liability (misdemeanor homicide

conviction); similar to misdemeanor manslaughter rule. Statute includes corporations for the same reason that they were held liable in Christy Pontiac.
XIII. RAPE
A. MPC §213.1:
A male who has sexual intercourse with a female not his wife is guilty of rape if:
1. 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
2. he has substantially impaired her power to appraise or control her conduct by administering or employing without her knowledge drugs, intoxicants or other means for the purpose of preventing resistance; or
3. the female is unconscious; or
4. the female is less than 10yrs. old.
Rape is a felony of 2

unless: serious bodily injury; not a voluntary social companion and had no previous sex.
B. Acquaintance Rape
1. force
2. non-consent
3. resistance (but not necessary in later law)
C. Mens Rea
1.
2. intent to have sexual intercourse moral blameworthiness
D. People v. Barnes
1. Do you need to show resistance by woman for a rape charge?
2. Prior to 1980 statute resistance was necessary, but after statute it is not longer required. Resistance is sufficient to show lack of consent, but is not necessary.
E. State v. Alston
Facts: Brown had had sexual relations with D prior to the rape. On prior occasions D had threatened her, but this time he did not. D solicited sex and she refused. He then began to fondle her and she complied. A few days later they had sex again. She filed a rape charge for the previous interaction.
Holding: Victim must show unequivocal communication of her withdrawal of earlier consent (explicitly withdrawn). Ct. puts burden on victim. The court finds that non-consent was shown, but not enough threat or force to constitute rape.
F. State v. Rusk

Facts: Victim agreed to give D, a man she met at a bar, a drive home.
When they arrived, D invited V upstairs. When she refused, D took the keys from the ignition and asked her to come up. V agreed because it was late at night; and, as she was in a strange neighborhood, she feared for her safety. Inside, D pulled her on the bed and began to remove her blouse.
She took off the rest of her clothing when he asked her to do so.
Throughout the process, V begged to be allowed to leave, and at one point as he put his hands lightly around her throat, she asked D. “If I do what you want, will you let me go without killing me?” D said yes, after which he proceeded to rape her. Trial court found guilt. Appellate court reversed because V did not resist, nor did evidence prove that if she tried resisting, D would have harmed her.
Holding: Reversed back to trial courts finding. Reasonableness of V’s apprehension of fear was plainly a question of fact for the jury to determine.
G. Punishment
1. Cannot get the death penalty for rape conviction.
H. MPC §213.1 and §213.6
1. Outdated. Still allows for evidence of prior promiscuity by victim and corroboration requirement. Most states have passed laws to change this.
2. Rape shield laws: don’t allow prior sexual history to be admitted; although most do allow prior history with the accused.
3. For the most part, both courts and state legislatures have come to recognize that a special corroboration rule for rape cases is unjustified.
I. Marital Exemption Rule
1. Most states have a partial exemption for married couples; however under common law a woman could not charge her husband with rape.
2. The US is in a state of transition at this point; 12 states have totally abolished the rule, 2 states still maintain a total exemption for marital rape, with the remainder of states having some partial exemptions.
I. People v. Liberta
Significance: Rewrites NY rape statute to be gender neutral. Also changed statute to eliminate marital exception. Broadened statute.
J. Michael M. case
Significance: Supreme Court upholds statute only penalizing men for statutory rape. Statutory rape laws were meant to prevent teen pregnancy and thus are only applicable to men raping women.