ACTUS REUS ............................................................................................................................................................. 4
A.
B.
C.
D.
E.
F.
G.
H.
I.
J.
VOLUNTARY ACT: MOVEMENT OF OUR BODY THAT FOLLOWS OUR VOLITION .................................................... 4
“VOLUNTARINESS”: AT THE EDGES ................................................................................................................... 4
VOLUNTARY ACT: SUPPOSED (BUT NOT REAL) EXCEPTIONS TO THE REQUIREMENT........................................ 4
VOLUNTARY ACT: CONSTITUTIONAL LAW ........................................................................................................ 4
VOLUNTARY ACT: MODEL PENAL CODE ........................................................................................................... 5
OMISSIONS: GENERAL PRINCIPLES .................................................................................................................... 5
OMISSIONS: EXCEPTIONS TO THE NO-LIABILITY RULE ...................................................................................... 5
OMISSIONS: MODEL PENAL CODE: LIABILITY BASED ON OMISSION IS PERMITTED IN TWO CIRCUMSTANCES ..... 5
MEDICAL “OMISSIONS”: A SPECIAL PROBLEM (THE PULLING THE PLUG ON THE RESPIRATORY ISSUE) .............. 5
SOCIAL HARM: GENERAL PRINCIPLES: TO BE GUILTY OF AN OFFENSE, A PERSON MUST DO MORE THAN THINK BAD THOUGHTS;
SHE MUST BE GUILTY OF WRONGDOING. .................................................................................................................... 6
K. SOCIAL HARM: CONSTITUTIONAL LIMITS .......................................................................................................... 6
MENS REA.................................................................................................................................................................. 7
A.
B.
C.
D.
E.
DEFINITION OF “MENS REA”.............................................................................................................................. 7
COMMON “MENS REA” TERMS .......................................................................................................................... 7
STATUTORY INTERPRETATION: WHATELEMENTS DOES A MENS REA TERM MODIFY ....................................... 8
SPECIFIC INTENT VERSUS GENERAL INTENT ...................................................................................................... 8
MODEL PENAL CODE ......................................................................................................................................... 8
STRICT LIABILITY OFFENSES ............................................................................................................................ 9
A.
B.
C.
D.
E.
PRESUMPTION AGAINST STRICT LIABILITY: ........................................................................................................ 9
PUBLIC-WELFARE OFFENSES: ............................................................................................................................ 9
NON-PUBLIC-WELFARE OFFENSES: ................................................................................................................... 9
JUSTIFICATION FOR STRICT LIABILITY ............................................................................................................... 9
MODEL PENAL CODE: ........................................................................................................................................ 9
MISTAKES OF FACT ............................................................................................................................................. 10
A.
B.
C.
D.
COMMON LAW RULES: .................................................................................................................................... 10
COMMON LAW RULES: SPECIFIC INTENT OFFENSES ........................................................................................ 10
COMMON LAW RULES: GENERAL INTENT OFFENSES ....................................................................................... 10
MODEL PENAL CODE: ...................................................................................................................................... 10
MISTAKES OF LAW .............................................................................................................................................. 11
A.
B.
C.
RATIONALE OF THE CL RULE .......................................................................................................................... 11
EXCEPTIONS TO THE GENERAL RULE ............................................................................................................... 11
MODEL PENAL CODE: ...................................................................................................................................... 12
CAUSATION............................................................................................................................................................. 13
A.
B.
C.
D.
GENERAL PRINCIPLES: ..................................................................................................................................... 13
ACTUAL CAUSE ............................................................................................................................................... 13
PROXIMATE CAUSE: ......................................................................................................................................... 13
MODEL PENAL CODE ....................................................................................................................................... 15
CONCURRENCE OF ELEMENTS........................................................................................................................ 16
A.
B.
C.
TEMPORAL CONCURRENCE .............................................................................................................................. 16
MOTIVATIONAL CONCURRENCE: ..................................................................................................................... 16
SPECIAL PROBLEM: TEMPORALLY DIVISIBLE ACTS OR OMISSIONS ................................................................. 16
DEFENSES: AN OVERVIEW ................................................................................................................................ 17
A.
B.
FAILURE OF PROOF “DEFENSES” ...................................................................................................................... 17
TRUE DEFENSES............................................................................................................................................... 17
JUSTIFICATIONS AND EXCUSES ...................................................................................................................... 18
A.
B.
C.
UNDERLYING THEORIES OF JUSTIFICATION ..................................................................................................... 18
UNDERLYING THEORIES OF EXCUSE ................................................................................................................ 18
JUSTIFICATION DEFENSES AND MISTAKE-OF-FACT CLAIMS: ........................................................................... 19
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D.
JUSTIFICATION V. EXCUSE: .............................................................................................................................. 19
SELF DEFENSE ....................................................................................................................................................... 20
A.
B.
C.
D.
E.
F.
GENERAL PRINCIPLES: ..................................................................................................................................... 20
DEADLY FORCE: CLARIFICATION OF THE GENERAL PRINCIPLES...................................................................... 20
DEADLY FORCE: “IMPERFECT” SELF-DEFENSE CLAIMS: ................................................................................. 21
DEADLY FORCE IN SELF-PROTECTION: RATIONALE FOR THE DEFENSE ........................................................... 21
SELF-DEFENSE: SPECIAL ISSUES ...................................................................................................................... 21
MODEL PENAL CODE ....................................................................................................................................... 22
DEFENSE OF OTHERS .......................................................................................................................................... 25
A.
B.
GENERAL RULE: .............................................................................................................................................. 25
MODEL PENAL CODE: ...................................................................................................................................... 25
DEFENSE OF PROPOERTY OF HABITATION ................................................................................................ 26
A.
B.
C.
D.
E.
DEFENSE OF PROPERTY .................................................................................................................................... 26
DEFENSE OF HABITATION ................................................................................................................................ 26
RELATIONSHIP TO OTHER DEFENSES ............................................................................................................... 27
SPRING GUNS: .................................................................................................................................................. 27
MODEL PENAL CODE ....................................................................................................................................... 27
LAW ENFORCEMENT ........................................................................................................................................... 29
A.
B.
C.
D.
ARRESTS .......................................................................................................................................................... 29
FORCE USED IN LAW ENFORCEMENT: COMMON AND STATUTORY LAW ......................................................... 29
FORCE USED IN LAW ENFORCEMENT: CONSTITUTIONAL LIMITS ..................................................................... 29
MODEL PENAL CODE ....................................................................................................................................... 29
CRIMINAL HOMICIDE ......................................................................................................................................... 31
A.
B.
C.
D.
E.
F.
E.
F.
G.
H.
HOMICIDE: ....................................................................................................................................................... 31
CRIMINAL HOMICIDE ....................................................................................................................................... 31
MURDER: INTENT TO KILL: .............................................................................................................................. 32
MURDER: INTENT TO INFLICT GRIEVOUS BODILY INJURY (2ND DEGREE).......................................................... 32
MURDER; EXTREME RECKLESSNESS (“DEPRAVED HEART MURDER) (2ND DEGREE) ........................................ 32
MURDER, FELONY-MURDER RULE (NAILS NEGLIGENT KILLINGS) ................................................................... 32
VOLUNTARY MANSLAUGHTER: PROVOCATION (“SUDDEN HEAT OF PASSION”, A FAILURE OF PROOF DEFENSE):34
INVOLUNTARY MANSLAUGHTER: .................................................................................................................... 35
MANSLAUGHTER: UNLAWFUL-ACT (MISDEMEANOR-MANSLAUGHTER) DOCTRINE: ...................................... 35
CRIMINAL HOMICIDE: MODEL PENAL CODE:................................................................................................... 35
NECESSITY .............................................................................................................................................................. 37
A.
B.
C.
D.
BASIC NATURE OF DEFENSE ............................................................................................................................ 37
GENERAL RULES .............................................................................................................................................. 37
CIVIL DISOBEDIENCE ....................................................................................................................................... 37
NECESSITY AS A DEFENSE TO HOMICIDE .......................................................................................................... 37
DURESS ..................................................................................................................................................................... 39
I. GENERAL PRINCIPLES ...................................................................................................................................... 39
II. RATIONALE OF THE DEFENSE (AS AN EXCUSE) ................................................................................................ 39
III.
DISTINGUISHING DURESS FROM NECESSITY ................................................................................................ 39
IV.
DURESS AS A DEFENSE TO HOMICIDE .......................................................................................................... 39
V. ESCAPE FROM INTOLERABLE PRISON CONDITIONS .......................................................................................... 40
VI.
SITUATIONAL DURESS: BRIEF OBSERVATIONS ............................................................................................ 41
VII. BATTERED WOMEN UNDER DURESS ............................................................................................................ 41
VIII.
MODEL PENAL CODE ............................................................................................................................... 41
INTOXICATION ...................................................................................................................................................... 42
I. OVERVIEW ....................................................................................................................................................... 42
II. VOLUNTARY INTOXICATION ................................................................................................................................ 42
III. INVOLUNTARY INTOXICATION ........................................................................................................................... 43
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IV. MODEL PENILE CODE ........................................................................................................................................ 43
INSANITY ................................................................................................................................................................. 45
A. OVERVIEW ......................................................................................................................................................... 45
B. RATIONALE OF INSANITY DEFENSE ...................................................................................................................... 45
C. DEFINITIONS OF INSANITY ................................................................................................................................... 45
M’NAGHTEN IRRESISTIBLE IMPULSE DURHAM ALI (MPC) FEDERAL STATUTE .................................................. 45
E. EFFECT OF AN INSANITY ACQUITTAL ............................................................................................................... 46
F. ABOLITION OF THE INSANITY DEFENSE ........................................................................................................... 47
G. GUILTY BUT MENTALLY ILL ............................................................................................................................. 47
ATTEMPT ................................................................................................................................................................. 48
I.CHAPTER OVERVIEW ............................................................................................................................................. 48
II. GENERAL PRINCIPLES.......................................................................................................................................... 48
III. “SUBJECTIVISM” AND “OBJECTIVISM” ............................................................................................................... 48
IV. PUNISHING ATTEMPTS: WHY, AND HOW MUCH? .............................................................................................. 48
V. MENS REA OF CRIMINAL ATTEMPTS .................................................................................................................... 49
VI. ACTUS REUS OF CRIMINAL ATTEMPTS................................................................................................................ 49
VII. DEFENSE: IMPOSSIBILITY.................................................................................................................................. 50
IX.
DEFENSE: ABANDONMENT ........................................................................................................................... 51
X. MODEL PENAL CODE ....................................................................................................................................... 51
COMPLICITY .......................................................................................................................................................... 52
I. OVERVIEW ....................................................................................................................................................... 52
II. ACCOMPLICE LIABILITY- GENERAL PRINCIPLES .............................................................................................. 52
III.
ACCOMPLICE LIABILITY: COMMON LAW ..................................................................................................... 53
IV.
ACCOMPLICE LIABILITY: ASSISTANCE ......................................................................................................... 54
VI. LIABILITY OF THE SECONDARY PARTY IN RELATION TO THE PRIMARY PARTY. ................................................... 55
VII. LIMITS TO ACCOMPLICE LIABILITY ................................................................................................................... 56
VIII. MODEL PENAL CODE ...................................................................................................................................... 56
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ACTUS REUS
a voluntary act (or a failure to perform a voluntary act that one has a legal duty to perform); that causes social harm. A voluntary
act is a prerequisite to criminal responsibility, i.e. it is an element of every criminal offense.
A. Voluntary act: movement of our body that follows our volition
1) a voluntary act involves the use of the mind (implies human will)
2) an involuntary act involves the use of the brain
B. “Voluntariness”: At the Edges
1) habitual acts are voluntary even if we are not aware of them, ie. Smoker lighting a cigarette
2) Multiple Personalities—generally still deemed to be a voluntary act-“we will not begin to parcel out criminal
responsibility among the various inhabitants of the mind”
3) Hypnosis-can go either way
4) The Issue of Time Framing—“A court may not properly choose any conduct it wishes; it must focus on the relevant
conduct, i.e., the conduct (performed with the requisite mens reas) that actually and proximately caused the social
harm of the offense. Once it identifies this conduct, the court can determine whether it includes a voluntary act.”
a) People v. Decina: (epileptic who had a seizure while driving that resulted in the death of four children):
guilty b/c the voluntary acts included those immediately preceding the seizure, i.e. the negligent operation of
a car.
b) Martin v. State: (police drag drunk out on to a highway and was then arrested for being drunk in public): not
guilty; the fact that he had gotten drunk was not the relevant act; he had not voluntarily appeared on the
highway.
C. Voluntary Act: Supposed (But Not Real) Exceptions to the Requirement
1) Status offenses: The Supreme Court has not looked kindly upon status offenses. Very likely any statute that punishes
a person for a mere propensity to act will run afoul of constitutional principles.
a) Vagrancy laws: struck down by supreme court
b) Addiction laws: struck down by supreme court
2) Crimes of Possession
a) Act is implicit: In order to convict, the prosecution must prove that the defendant knowingly procured or
received the property possessed (thus a voluntary act must be proven), or that she failed to dispossess herself
of the object after she became aware of its presence (ie statutory omission)
b) No Plants: ie not guilty if the contraband was planted on her, so long as she did not have time to terminate
her possession after she learned of its presence.
D. Voluntary Act: Constitutional Law
1) Robinson v. California
a) The Supreme Court ruled that a California law making drug addiction alone (ie. No act necessary) a criminal
offense violated the 8th and 14th Amendments of the Constitution.
b) Robinson decided on retributive grounds—no punishment for an illness
2) Powell v. Texas
a) Leroy Powell was charged with violation of a Texas Statute that prohibited “getting drunk or being found in
a state of intoxication in any public place”.
b) HELD: Conviction Sustained: Texas was punishing conduct not illness, i.e. Powell was convicted not for
being an alcoholic but for being in public while drunk on a particular occasion.
3) Current Law: Powell in light of Robinson
a) Powell did not overrule Robinson; and
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b) These two cases stand for the proposition that a state may not dispense with the Criminal Law requirement
of Actus Reus (that is, the government may not punish a person for her thoughts alone, or for her mere
propensity to commit crimes.
E. Voluntary Act: Model Penal Code
1) No person may be convicted of a crime in the absence of conduct that “includes a voluntary act or the omission to
perform an act of which he is physically capable.”
a) Act is defined: as a bodily movement whether voluntarily or involuntarily
b) Voluntary is defined only by listing bodily movements that are involuntary: reflexes, convulsions, conduct
during unconsciousness, sleep or due to hypnosis, and generally any conduct that is “not a product of the effort
or determination of the actor, either conscious or habitual.”
2) Exception to the Rule
a) violations (i.e. offenses for which the maximum penalty is a fine or civil penalty) do not require a voluntary act,
i.e. if you unforeseeably blackout and run a stop sign, you still can be found guilty of a motor vehicle violation
F. Omissions: General Principles
1) Generally, a person has no criminal law duty to rescue or render aid to another person in peril, even if the person
imperiled may lose her life in the absence of assistance (Kitty Genovese)
G. Omissions: Exceptions to the No-Liability Rule
1) Statutory Duty: a duty to act may be statutorily imposed; pay taxes, parents to provide food and shelter to their minor
children, etc.
2) Status Relationship; a person may have a common law duty to act b/c she stands in a special relationship to another.
(remember to be convicted still need to have the requisite mens rea)
a) Parent/child
b) husband/wife
c) master/servant
3) Contractual Obligation: a duty to act may be created by implied or express contract.
a) baby sitter-implied contractual duty to protect kids
b) doctor-duty to provide ordinary medical care to her patients
4) Omissions Following an Act: In some circumstances an act, followed by an omission will result in criminal
responsibility for the omission, even when there is no liability for the act
a) Creation of risk: a person who wrongfully, or perhaps even innocently, harms another or another’s property,
or who places a person or her property in risk of harm, has a common law duty to aid the injured or
endangered party
b) Voluntary Assistance: One who voluntarily commences assistance to another in jeopardy has a duty to
continue to provide aid, at least if a subsequent omission would put the victim in a worse position than if the
actor had not initiated help.
H. Omissions: Model Penal Code: liability based on Omission is permitted in two circumstances
1) if the law defining the offense provides for it
2) if the duty to act is “otherwise imposed by the law” (ie imposed by civil law or torts)
I. Medical “Omissions”: A Special Problem (the pulling the plug on the respiratory issue)
1) Act or Omission: The voluntary act of turning off the machine is merely the means for omitting medical care.
Arguably, therefore, we ought to analyze D’s behavior as an omission
2) Doctor has Contractual Duty to Patient: Must give ordinary care/need not give extraordinary care—who is going to
draw this line
3) The Barber Approach:
a) Doctors pulled the plug, but it did not work, so they cut off food and hydration to comatose patient.
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b) Held: this was an omission; court refused to use the extraordinary/ordinary care test-instead they asked
whether the proposed treatment was proportionate. They ruled that even minimally painful or intrusive
treatment is apt to constitute disproportionate treatment when the patient has no meaningful chance of
medical improvement. (this is a question for the patient, when they are unable to do so the task falls on the
immediate family)
c) Questioning the Result of Barber:
1) Perhaps the law should treat discontinuance of basic sustenance differently than it does termination of,
for example, dialysis treatment, radiation therapy or medication.
2) At a minimum should physicians and families be required to receive prior judicial authorization before
termination of treatment.
J. Social Harm: General Principles: to be guilty of an offense, a person must do more than think bad
thoughts; she must be guilty of wrongdoing.
1) Definition of “Social Harm”: it is the “negation, endangering, or destruction of an individual, group, or state interest
which was deemed socially valuable.”
2) Dividing “Social Harm” into sub-elements
a) Conduct Elements: some crimes are defined in terms of harmful conduct, harmful results are not required.
(i.e. intentionally driving under the influence of alcohol).
b) Result Elements: an offense may be defined purely in terms of prohibited result. (i.e. common law murder
is a “result” crime, in that the social harm is death of another human being; the death must be a result of
conduct, but it does not matter how the result occurs.)
c) Combination offenses: some offenses contain both conduct and result elements.
3) Attendant Circumstances: Included in the definition of a particular offense may be one or more facts or conditions
that must be present during the prohibited conduct, or must be part of the prohibited result, in order for the actor to be
guilty of the crime.
a) Example: Common Law Burglary: breaking and entering of the dwelling house of another at nightime.
(the bold portions are circumstances)
K. Social Harm: Constitutional Limits
1) Various constitutional provisions limit the extent to which a legislature may proscribe harmful conduct (ie. first
amendment freedom of speech)
2) Bowers v. Hardwick: Appears to have given the state legislature’s wide latitude to punish “victimless” conduct.
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MENS REA
Except in rare circumstances, a person is not guilty of an offense unless he performs a voluntary act (or omits an act that is his
legal duty to perform) that causes social harm (the actus reus), with a mens reas (literally, a “guilty mind”).
A. Definition of “Mens Rea”
1) Broad Meaning: The Culpability Meaning of “Mens Rea”: Broadly speaking “mens rea” is defined as a “general
immorality of motive”, “vicious will”, or an evil-meaning mind. (basically moral blameworthiness)
a) Regina v. Cunningham: D stole the gas meter, gas leaked into apartment next door and almost killed V. D
was charged with an offense that provided in part, that “whoever shall..maliciously..cause to be
administered to or taken by any person any poison…or noxious thing, so as thereby to endanger the life of
such person, …shall be guilty of a felony.”
b) Held: Trail judge instructed that maliciously meant that the defendant had acted “wickedly”. Since D
caused the harm while trying to steal from the meter, the jury found the requisite “wickedness”.
2) Elemental Meaning: Mens Rea may also be defined, simply, as “the particular mental state provided for in the
definition of the offense.
B. Common “Mens Rea” Terms
1) Intentionally:
a) Definition: At common law, a person “intentionally” causes the social harm of an offense if: (1) it is his
desire (i.e. his conscious object) to cause the social harm; or (2) he acts with knowledge that the social harm
is virtually certain to occur as a result of his conduct. (subjective)
b) “Motive” Distinguished
1) Specific intent crimes by definition require a “specified motive”.
2) Motive is relevant to claims of defense. (ie. defendant’s motive for his intentional actions is legally
justifiable)
3) Motive can come in at sentencing
c) Transferred Intent
1) general doctrine: “if one intends injury to the person (or property) of another under circumstances
in which such a mental element constitutes mens reas, and in the effort to accomplish this end he
inflicts harm upon a person (or property) other than the one intended, he is guilty as if his aim had
been more accurate.”
2) Exceptions to the doctrine:
a. If A only intends to harm one person, bullet passes through that person, and hits another
person, the intent does not transfer. (Intent in essence gets used up on the first person)
b. Some crimes specify no transferring of intent
c. Intent does not transfer between different types of harm
2) “Knowingly” or “With Knowledge”: Sometimes Knowledge of a material Fact-an attendant circumstance is a
required element of an offense. (ie. knowingly import Ganga into the US)
a) A person has “knowledge of a material fact if he is aware of the fact or he correctly believes that it exists.
Thus, in the Ganga importation hypo, D “knows” of the presence of the Ganga if he concealed it in the
vehicle himself or personally observed its presence (Actual knowledge); he also “knows” of the Ganga’s
presence if he smells it and, as a consequence, believes that it is present. (correct belief form of knowledge)
b) Wilful Blindness: if a person is aware of a probability of the existence of the fact in question and he
deliberately fails to investigate in order to avoid confirmation of that fact.
c) Problem with Wilful Blindness: a jury might convict a defendant under the ostrich instruction merely for
being a careless bird, i.e. upon a finding of negligence, which is a less culpable mens rea than knowledge.
At most, one who suspects the existence of a circumstance is reckless in acting in the face of a known
suspicion. (i.e. does not seem just)
3) Negligence and Recklessness: Risk-taking falls into four categories: (1) socially desirable or morally neutral risktaking; (2) risk taking that justifies civil liability; (3) criminally negligent risk-taking; and (4) reckless conduct.
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“Negligence In General”: Negligence constitutes objective fault, i.e. an actor is not blamed for a wrongful
state of mind, but instead is punished for his failure to live up to the standards of a fictional “reasonable
person”. BPL Analysis
b) Criminal Negligence: is conduct that represents a gross deviation from the standard of reasonable care. I.e.
PL far outweighs B.
c) Who is the “Reasonable Person”: Generally Speaking an objective test; but the current position of the law,
but one that is under considerable attack-is that the defendant’s unusual physical characteristics (e.g.
blindness), if relevant to the case get figured into the reasonable man standard, but that the defendant’s
unusual mental characteristics are not.
d) Recklessness: a finding of recklessness requires proof that the actor disregarded a substantial and
unjustifiable risk of which he was aware. (awareness is the distinguishing factor between this and criminal
negligence)
e) “Malice”: a person acts with malice if he intentionally or recklessly causes the social harm prohibited by the
offense. (i.e. negligence is not sufficient for malice)
a)
C. Statutory Interpretation: WhatElements Does a Mens Rea Term Modify
1) If there is only one statutory mens rea term, and it is set out at the beginning of the statute, a court may interpret this
to mean that the word modifies every actus reus element that follows it.
2) If the mens rea term follows various actus reus elements, but proceeds other, the court is likely to conclude that the
mens rea element applies in a forward direction, but not “backward”
D. Specific Intent versus General Intent
1) A specific intent statute is one in which the definition of the crime includes an intent to do some future act or achieve
some further consequence (i.e. a special motive for the conduct), beyond the conduct or result that constitutes the
actus reus of the offense.
E. Model Penal Code
1) Section 2.02: Provides that, except in the case of offenses characterized as “violations”, a person may not be
convicted of an offense unless “he acted purposely, knowingly, recklessly, or negligently, as the law may require,
with respect to each element of the offense.
a) a person can no longer be convicted just b/c they are morally blameworthy.
2) “Purposely”; two definitions depending on if applied to results or circumstances
a) Results: if it his conscious object to cause that result (equivalent to common law intentionally)
b) Circumstances: if he is aware of the existence of the circumstances or he believes or hopes that they exist.
3) Knowingly: two definitions depending on if applied to results or circumstances
a) Results: if the actor is aware that it is practically certain that his conduct will cause such a result
b) Circumstances: if he is aware (too a high probability) that such attendant circumstances exist, unless he
actually believes that it does not exist.
4) Recklessly and Negligently
a) Recklessly: if he “consciously disregards a substantial and unjustified risk that the material element exists or
will result form his conduct. (conscious decision to disregard) (tracks CL)
b) Negligently: if the actor should be aware of a substantial and unjustifiable risk and that the material element
exists or will result from his conduct. (tracks CL)
c) Nature of Reasonable Person: physical characteristics such as an actor’s blindness, or that he just suffered a
heart attack, “would certainly be facts to be considered in judgment involving criminal liability, but
hereditary factors, and matters of intelligence and temperament may not be properly considered.
d) Principles of Statutory Construction:
1. a single mens rea term—whatever it is-modifies each actus reus element of the offense, absent a
plain contrary purpose of the legislature (example: false imprisonment: “knowingly restrain
another unlawfully”. Defendant must have knowingly restrained the victim, and he must have
known the restraint was unlawful.
2. In contrast, if the single mens rea term is place in the middle of the statute, it would suggest a
contrary purpose. Ie only applies to those elements that come after the culpability term
3. IF no mens rea is there, must imply at least recklessly.
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STRICT LIABILITY OFFENSES
crimes that by definition, do not contain a mens rea requirement regarding one or more elements of the Actus Reus
A. Presumption against strict liability:
offenses that do not contain a mens rea element have a “generally disfavored status,” and “at least with regards to crimes having
their origin in common law, an interpretative presumption exists that mens rea is required. FACTORS TO CONSDER IN
DETERMING IF A STATUTE SHOUD BE TREATED AS SL.
1) that the statutory crime is not derived from the common law
2) that there is an evident legislative policy that would be undermined by the a mens rea requirment
3) that the standard imposed by the statute is reasonable and adherence thereto properly expected of a person (ie. can the
average person figure out if they were committing the offense)
4) that the penalty is small
5) that the conviction does not gravely besmirch
B. Public-Welfare Offenses:
1) conduct that, although not morally wrongful, could gravely affect public health, welfare, and safety.
Malum prohibitum (conduct that is wrong merely b/c it is prohibited
Examples: prohibit sale of beer to minors, or impure food and drugs to the public, traffic violations, etc.
C. Non-Public-Welfare Offenses:
a few traditional, i.e. non-public-welfare, offenses permit conviction in the absence of proof that the defendant possessed a mens
rea regarding a material element of the offense. (i.e. statutory rape in many states)
1) malum in se: (conduct is inherently wrongful)
D. Justification for Strict Liability
1) avoids the difficult in proving mens rea (i.e. less burdensome on cts)
2) deterrence: you might get an increment of deterrence (vs intent: deters those who think they can lie successfully; vs
negligence: activity level adjustment, not mere care level adjustment)
E. Model Penal Code:
makes a frontal attack on strict liability in the penal law.
1) Section 2.02 , subsection (1) expresses the general rule that no criminal conviction may be obtained unless the
prosecution proves some form of culpability regarding each material element of the offense.
2) Section 2.05 creates limited exception: voluntary act requirement and mens rea do not apply to mere violations.
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MISTAKES OF FACT
a person’s misperception of reality, even when not caused by insanity, intoxication, or some other unusual mental condition, may
sometimes exculpate him for the harm that he caused. (not a defense, but acts to negate mens rea)
A. Common Law Rules:
Strict Liability Offenses: under no circumstances does a person’s mistake of fact negate his criminal responsibility for violating a
strict liability offense. (i.e. statutory rape, mistake of fact is no defense Kenny)
B. Common Law Rules: Specific Intent Offenses
1) Mistakes relating to the “specific intent”: a defendant is not guilty of an offense if his mistake of fact negates the
specific intent portion of the crime (good faith belief is enough to get you off)
C. Common Law Rules: General Intent Offenses
1) Ordinary Rule: is that a person is not guilty of a general intent crime if his mistake of
fact was reasonable, but he is guilty if his mistake was unreasonable. (i.e. negl belief as to circumstances is
enough to convict someone of a GI crime)
2) Moral-Wrong Doctrine: there should be no exculpation for mistake where, if the facts had been as the actor believed
them to be, his conduct would still be immoral. (most often used in sex offenses, and crimes against family interests).
a) Regina v. Prince: D was prosecuted for “unlawfully taking or causing to be taken, any unmarried girl, being
under the age of 16, out of the possession of her father.” Girl 13, D reasonably believed that she was 18.
Convicted under moral wrong doctrine b/c morally wrong to even take 18 year old girl from her father.
b) Criticisms of the Rule: Not all immoral conduct is illegal, and furthermore morals are individualized, what
is morally wright to one person, maybe morally abhorrent to another.
3) Legal-Wrong Doctrine: there should be no exculpation for mistake where, if the facts had been as the actor believed
them to be, his conduct would still be illegal
a) Example: Farrell gets a prostitute who he believes is 16, but in fact she is 15. Law makes it more serious to
get a prostitute under the age of 16. Farrell goes down for the more serious crime.
b) Criticisms of the Rule: The legal wrong doctrine authorizes punishment based on the harm that the actor
caused, i.e. the actus reus of the greater offense, while it ignores the fact that the actor’s mens rea was at the
level of the lesser crime.
4) Regina v. Morgan: Common Law Transition or an Aberration
a) Facts: Ds, three men, were convicted of forcibly raping V, X’s wife. X had told them if she resisted not to
worry b/c that is how she likes it, its all a game.
b) On appeal: Conviction overturned b/c court says even if D’s negligently believed that V was consenting,
they did not posses the requisite mens rea of the offense, i.e. the intention to act without V’s consent.
c) This case has proven to be highly controversial, and as a result the House of Lords has largely retreated in
non-rape cases.
D. Model Penal Code:
1) SEC 2.04(1) provides that a mistake is a defense if it negates the mental state required to establish any element of the
offense. It is irrelevant whether the offense would be identified as general intent of specific intent at common law.
2) Morgan Under MPC: if Ds realized that X’s statement to them about his wife’s kinkiness might be false, and yet they
consciously disregarded the substantial and unjustifiable risk that V was consenting, i.e. they were reckless, there
mistaken belief would not be a defense. But if they were merely negligent, then it would be a defense.
3) Exception To MPC: Same as CL legal wrong doctrine, except the Code only permits punishment at the level of the
lesser offense, when the CL punishes you for the higher offense.
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MISTAKES OF LAW
Subject to very few exceptions, the common law rule is straightforward: ignorance of law excuses no one.
A. Rationale of the CL Rule
1) Certainty of the Law:
a) According to some common law scholars the law is definite and knowable—therefore there is not such thing
as a reasonable mistake of law. (this is debatable)
b) Problem with this justification for CL rule: The “definite and knowable” claim cannot withstand modern
analysis. Many modern criminal statutes are exceedingly intricate, therefore a person can reasonably be
mistaken about the law.
2) Avoiding Subjectivity in the Law
a) Jerome Hall has argued that the legal system favors “objectivity to subjectivity and judicial process to
individual opinion
b) Problem with this justification for CL rule: Hall Misconceives the nature of the mistake of law claim: ie
person is only acquitted if an ordinary law abiding person would have misunderstood the law in question.
(ie. a subjective belief is not sufficient)
3) Fraud
a) a pragmatic justification for the rule is that recognition of a mistake of law defense would provide
“opportunities for wrong minded individuals to contrive claims of mistake solely to get an exculpatory
notion before the jury.
b) Problem with this justification for CL rule: is it any harder to investigate a person’s knowledge of law than
say mens rea.
4) Sacrificing the Individual for the Public Good
a) it is better to sacrifice the individual than to encourage ignorance of the law.
b) Problem with this justification for CL rule: this is imposing SL on the D, moral problems come with that.
B. Exceptions to the General Rule
1) Reasonable-Reliance Doctrine (a true defense)
a) Personal Interpretation of the Law: A person is not excused for committing a crime if she relies on her own
erroneous reading of the law, even if a reasonable person—even a reasonable law trained person-would have
misunderstood the law
1. People v. Marrero: D misinterpreted a NY statute that permitted “peace officers” to carry handguns
without permits. D a federal corrections officer thought he was covered by the statute, but the court of
appeals rejected his reading of the law even though it was reasonable. He was not allowed to raise a
defense of mistake of law b/c his mistake was founded solely on his personal misunderstanding of the
law.
b) Official Interpretation of the Law: A person is excused for committing a criminal offense if, at the time of
the offense, she reasonably relied on an official statement of the law, later determined to be erroneous,
obtained from a person or public body with responsibility for the interpretation, administration, or
enforcement of the law defining offense. For a statement of the law to be official it must be contained in:
1. a statute later declared to be invalid;
2. a judicial decision, later determined to be erroneous, of the highest court in the jurisdiction
3. or an official (implies written), but erroneous interpretation of the law , secured from a public
officer with responsibility for the interpretation, administration, or enforcement of the law defining
offense, such as an Attorney General. (local prosecuting attorney is not good enough)
c) Advice of Private Counsel: Reliance on erroneous advice provided by a private attorney is not a defense to a
crime.
2) Fair Notice: The Lambert Principle ( a true defense): under limited circumstances, a person who is unaware of a duly
enacted and published criminal statute may successfully assert a constitutional defense in a prosecution of that
offense.
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a)
Lambert FACTS: D was convicted felon, but was not aware that LA had an ordinance requiring convicted
felons to register their presence with the police.
b) Held: The Supreme Court ruled that her conviction violated the Due Process clause of the Constitution.
“actual knowledge of the duty to register or proof of probability of such knowledge was constitutional
prerequisite to conviction for violation of the registration statute.
c) 3 Factors that troubled the Court in Lambert (all might be required)
1. it punished an omission (failure to register)
2. the duty to act was based on status (presence in LA)
3. the offense was malum prohibitum (wrong just b/c prohibited)
3) Ignorance or Mistake that Negate Mens Rea
a) General Approach: A defendant’s lack of knowledge of, or misunderstanding regarding the meaning or
application of, another law—usually, it will be a nonpenal law—will negate the mens rea element in the
definition of the criminal offense. When a defendant raises a different-law mistake, the court must first
determine whether the offense is SI, GI, or SL.
b) Specific-Intent Offenses: a different-law mistake, whether reasonable or unreasonable, is a defense to
prosecution of a specific intent offense, if the mistake negates the specific intent of the prosecuted offense.
1. Cheek v. United States: D an anti-tax activist, failed to file federal income tax returns for six-years,
although he had received wages as a pilot. D was charged with six counts of “willfully” failing to
file federal income tax returns. D testified that he did not believe that he was required to report his
wages as income to the IRS. As a consequence, D requested the judge to instruct the jury that D
was not guilty of the offense if he believed, even unreasonably, that he was not legally required to
report his wages. Trial Ct refused the instruction.
2. Held: Supreme Court held that it should have done so; if the jury believed D’s testimony, his
mistake regarding the meaning of the term income under the Revenue Code (a “different law”)
disproved that he “intentionally” violated a known legal duty.
c) General-Intent Offenses: a different-law mistake, whether reasonable or unreasonable, apparently is not a
defense to a general-intent crime.
1. rape hypo: D2 may be convicted of V’s rape (GI offense) b/c the D2-V marriage was legally
invalid. Even if D2 mistake regarding the legality of his marriage was reasonable, and thus D2 did
not intend to have intercourse with a “female not his wife”—the common law does not exculpate
D2. (this does not conform with the comparable CL mistake of fact rule)
2. bigamy hypo-D3 will be convicted of bigamy (a SL offense) even though she believed, perhaps
reasonably, that she had obtained a proper divorce before she remarried.
d) Strict Liability Offenses: A different-law mistake, whether reasonable or unreasonable, is not a defense to a
SL offense.
C. Model Penal Code:
Like the Common Law, the Model Penal Code does not generally recognize a mistake of law defense.
1) Exceptions to the General Rule
a) Reasonable Reliance Doctrine: In nearly all respects, the MPC codifies the CL reasonable reliance doctrine.
A person’s belief that her conduct is lawful constitutes a defense if: (1) she relies on an official, but
erroneous statement of the law; (2) the statement of the law is found in a statute, judicial decision (any
court), administrative order or grant of permission, or an official interpretation by a public official or body
responsible for the interpretation, administration, or enforcement of the law; and (3) the reliance is
otherwise reasonable. (still no excuse for private attorney’s advice though)
b) Fair Notice: The Model Penal Code provides that a defendant is not guilty of an offense if she does not
believe that her conduct is illegal, and the statute defining the offense: (1) is not known to her; and (2) was
“not published or otherwise reasonably made available to her before she violated the law.
1. Lambert would provide a further exception in a situation in which the statute was published ,but the
prohibited conduct itself would not alert an actor to the need to investigate whether there was a relevant
statute on the books.
c) Ignorance or Mistake that Negates Mens Rea: A claim that a different-law mistake negates the mens rea of
the offense is handled in the same manner as a claim of a mistake of fact under the code.
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CAUSATION
A. General Principles:
Causation is the instrument society employs to ensure that criminal responsibility is personal. It is the basis that links the actor to
the social harm. Because of the higher stakes in the criminal law, and its especially strong commitment to personal, rather than
vicarious responsibility, some courts expressly provide that a tort conception of causation is insufficient to impose criminal
responsibility. Instead, a stricter test, requiring a closer connection between the defendant’s conduct and the resulting harm is
applied.
B. Actual Cause
there can be no criminal liability for resulting social harm unless it can be shown that the defendant’s conduct was a cause-in-fact
of the prohibited result.
1) “But For” (Sine Qua Non) Test
a) In order to make the Actual Cause determination, Cts traditionally apply the “but-for” test.
b) The test may be stated as: “But for D’s voluntary act(s), would the social have harm have occurred
when it did.
2) Causes versus Conditions
a) In determining causation, people focus on what is interesting in the event. They focus on the abnormal, the
matters that seem out of the ordinary.
b) Conditions are normal events or circumstances that, although necessary for the result to occur, do not
positively contribute to it
3) Special Actual Cause Problems
a) Causation with Mens Rea: No conviction in a case where you have but for cause without mens rea
b) Mens Rea Without Causation: No conviction in a case where you have the requisite mens rea without
causation.
c) Multiple Actual Causes
1. Accelerating Result; two or more events can be deemed actual causes if they accelerate the result.
a. Oxendine v. State: V was the tragic victim of two separate attacks of child abuse; first, he
sustained internal injuries from a beating inflicted by X, one day later, D, V’s father, inflicted
additional injuries. V died later that day. A doctor testified that the earlier injury by X was the
underlying cause of the death; but he could not state whether D’s actions accelerated the
process.
b. Held: D got a directed verdict of acquittal. However, fi the sate had introduced evidence that
the beating inflicted by D has hastened V’s death by even the slightest degree, D could have
properly have been found to be an actual cause of the death.
2. Concurrent Sufficient Causes—two Ds shoot V in the head at the exact same time, each of which
would have killed V on their own. (under traditional but for test, both Ds would get off.)
a. “substantial factor” test: asks whether the D was a substantial factor in causing the prohibited
harm
b. Modified “but for Test” asks whether but for D’s voluntary act would the social harm have
occurred when and as it did.
d) Obstructed Cause
1. a. hypo: D1 shoots V in the Stomach. Simultaneously and independently, D2 shoots V three times
in the head, killing him instantly. D1 is not an actual cause of V’s death here, D1 gets charged with
attempted murder.
C. Proximate Cause:
The decision to attach causal responsibility for social harm to one, rather than to another, even t is made in a common sense
manner, or by application of moral intuitions, a community sense of justice, and/or public policy considerations.
1) Direct Cause: an act that is a direct cause of social harm is also a proximate cause of it.
2) Intervening Causes: Under what circumstances should D, would acts with the requisite mens rea, and who commits a
voluntary act that is a cause in fact of the social harm, be relieved of criminal responsibility b/c of the existence of an
intervening cause.
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a.
Factor 1: De Minimis Contribution to the Social Harm: some wrongdoers have too minor a causal role to
justify criminal punishment. The law will treat the substantial, intervening cause as the proximate cause of
the social harm
b.
Factor 2: Foreseeability of the Intervening Cause: The law tends to distinguish between “responsive” (or
“dependent”) and “coincidental” (or “independent”) intervening causes
1. Responsive (dependent) intervening causes: is an act that occurs in reaction or response to the
defendant’s prior wrongful conduct. A responsive intervening cause does not relieve the initial
wrong doer of criminal responsibility, unlesss the response was highly abnormal or bizarre.
A- the accused bears criminal responsibility for the death of a person who seeks to extricate
himself or another from the dangerous situation created by the defendant., even if the
victim was contributorily negligent in his efforts
B- one who wrongfully injures another is responsible for the ensuing death, not withstanding
subsequent negligent medical treatment that contributes to the victim’s death or
accelerates it.
2. Coincidental (Independent) intervening Causes: is a force that does not occur in response to the
initial wrongdoers conduct. The only relationship between the D’s conduct and the intervening
cause is that the defendant placed the victim in a situation where the intervening cause could
independently act upon him. The common law rule of thumb is that a coincidental intervening
cause relieves the original wrongdoer of criminal responsibility, unless the intervention was
foreseeable.
A-hypo: A robs V and his car, then leaves drunk V on side of the road. It was foreseeable that
a drunk V might be run over by another car, therefore, A does not get off.
c.
Factor 3: The Defendant’s Mens Rea (Intended Consequences Doctrine): we usually trace the cause of
social harm backwards through other causes until we reach an intentional wrongdoer.
1. hypo-D with the intent to kill V, her child, furnished poison to X, a home nurse, falsely informing
X that it was medicine that was to be administered to V. X did not feel that V needed the medicine
so she did not administer it. Instead, she placed it on a mantel, where some time later C, a young
child, discovered it and gave it to V, killing V. D was prosecuted and convicted of V’s murder.
She got what she wanted, and now she must live with it.
d.
Factor 4: Dangerous Forces that Come to Rest ( Apparent-Safety Doctrine); when a defendant’s active force
has come to a rest in a position of apparent safety, the Court will no longer follow.
1. Hypo- D threatened the life of V, his spouse. A s a consequence, V was forced to leave the house
on a freezing night in order to protect her self. V walked within 200 yards of her fathers home,
where she would have been welcome, but she chose to spend the night in the extreme cold instead
of bothering her father. V froze to death during the night.
2. Held: D was the actual cause, but he was not the proximate cause of her death. V had reached a
point of apparent safety, therefore her decision to sleep outside constituted a superseding
intervening cause.
e.
Factor 5: Voluntary Human Interventions: A defendant is far more apt to be relieved of criminal
responsibility in the case of a “free, deliberate, and informed,” i.e. voluntary, intervention of a human agent
that in the case of an intervention by a natural force or the actions of a person whose conduct is less than
fully free.
1. Hypo- D and V operate their vehicles in a reckless manner as part of a drag race, at the end of
which race V, acting under his own volition, turns his car around and speeds through a guardrail,
killing himself and another.
2. Held: Regardless of D’s initial responsibility for the race, V’s decision to ad lib by continuing the
race after it was over relieves D of responsibility for the ensuing harm.
Factor 6: Omissions: an omission will, rarely if ever, serve as a superseding intervening cause. This
principle applies, even if the intervening actor has a duty to act. Therefore, a parents failure to stop another
person from beating his child, will not absolve the attacker for the ensuing homicide, although the parent
may also be responsible for the death on the basis of omission principles.
f.
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D. Model Penal Code
1) Actual Cause: The MPC applies the “but for” test. To be guilty of an offense, a person’s conduct must cause the
prohibited result. “Cause is defined under the Code as “an antecedent but for which the result in question would not
have occurred.” The CL principles that clarify the meaning of this test also apply in Code jurisdictions.
2) Proximate Cause: Unlike the Common Law, the Code treats matters that the common law would consider in terms of
proximate causation as issues relating to the actor’s culpability
a. According to the code, the defendant ha not acted with the requisite culpability(which in this sense is the
same as saying the CL proximity standard has not been satisfied) unless the actual result, including the way
in which it occurred was not too remote or accidental in its occurrence to have a just bearing on the actor’s
liability or on the gravity of his offense.
b. The Code in essence invites the jury to reach a result based on common sense and fairness instead of going
through a arduous proximate cause analysis
c. In the rare circumstance of an offense containing no culpability element, the Code provides that causation is
not established unless the actual result is a probably consequence of the actor’s conduct.
d. Note: this would mean that in a jurisdiction that recognizes the Common Law Felony Murder Doctrine, but
which applies the MPC causation principles, a defendant may not be convicted of felony murder if the death
was not a probable consequence of the felonious conduct. For example, if D attempted to rob a bank, and
the bank teller accidentally electrocuted himself while attempting to hit the alarm button, D would not be
liable for the death b/d the actual result –death by electrocution—was not a probable consequence of
robbing a bank.
PEALE, BANACH, BROWN & FARRELL
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CONCURRENCE OF ELEMENTS
is an additional prerequisite to criminal liability. The principle of concurrence contains two components:
A. Temporal Concurrence
Lack of temporal concurrence occurs when the mens rea of an offense exists before or after, but not during the commission of the
actus reus.
1) Mens Rea Preceding the Actus Reus: The Concurrence principle is satisfied, however, if the voluntary act that causes
the social harm occurs with the mens rea, although the social harm itself occurs later.
2) Actus Rues Proceeding Mens Rea: Temporal concurrence is absent if the actus reus precedes the mens rea. (i.e. D2
is not guilty of murder if she innocently takes V2’s life, even if she later decides that she is glad that she killed V2.
B. Motivational Concurrence:
The impelling force or motivation behind the act that causes the social harm must be the mens rea of the offense, and not some
other thought process, such as the mental state of preparing to commit the offense. (example, Mark wants to kill his unfaithful wife
V, but he first wants to test the gun, so he pulls the trigger, believing the gun to be empty. The gun goes off, and the bullet kills V,
who is entering the house.) No motivation concurrence in this hypo.
C. Special Problem: Temporally Divisible Acts or Omissions
1) State v. Rose: D an automobile driver, was prosecuted for negligent homicide, in the death of V, a pedestrian. The
evidence showed that D apparently non-negligently struck V, whose body wedged underneath D’s car. C continued
to drive some distance, dragging V’s body along. Medical experts could not determine whether V died at impact or as
a result of being dragged.
2) HELD: Based on the evidence the court properly reversed D’s conviction. Essentially, D committed two divisible
voluntary acts or series of acts: first, she collided with V; second, she dragged V’s body after impact. Regarding the
first voluntary act, D lacked a mens rea. Regarding the second voluntary act (or, if you will, D’s omission of failing
to stop), D was criminally negligent. However, there was insufficient medical testimony to prove beyond a
reasonable doubt that this negligent conduct/omission caused the social harm.
3) NOTE; courts sometimes ignore the concurrence requirement. Example, Edo hits Mark over the head with a Goat
Horn, thinking Mark is dead, Edo threw Mark over a cliff, in order to make it appear that Mark had died as a result of
an accident. However, Mark ultimately died from exposure after the fall. IN this case, the court chose to ignore the
concurrence element. (Moore distinguished these cases based on the fact that in the EDO hypo at T1 you have
causation, mens rea, and a voluntary act)
PEALE, BANACH, BROWN & FARRELL
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DEFENSES: AN OVERVIEW
A. Failure of Proof “Defenses”
—a failure of proof defense is one in which the defendant introduces evidence at his trial that demonstrates that the prosecution
has failed to prove an essential element of the offense charged. These are not true defenses. Rather , the purpose of the
defendant’s evidence is to raise a reasonable doubt regarding an element of the prosecutor’s case in chief. Three Examples:
1) Mistake of fact defense: negates the mens rea of the crime
2) Unconsciousness defense: demonstrates that the prosecutor has failed to prove beyond a reasonable doubt that D2’s
conduct included a voluntary act
3) Alibi Defense: goes to the question of whether D3 performed the actus reus of the offense.
B. True Defenses
—a true defense is one that, if proved, results in the acquittal of the defendant, although the prosecutor has proved beyond a
reasonable doubt every element in the definition of the crime. (generally, the defendant carries the burden of proof with regards to
a true defense) There are four categories of true defenses:
1) Justification Defenses: is one that defines conduct “otherwise criminal, which under the circumstances is socially
acceptable and which deserves neither criminal liability or even censure. Justified conduct is conduct that is a good
thing, or the right or sensible thing, or a permissible thing to do. That is, a justified act is an act that is right or, at
least, not wrong.
2) Excuse Defense: An excuse defense, e.g. insanity, differs from a justification defense in a fundamental way.
Whereas a justification claim generally focuses upon an act (i.e. D’s conduct) and seeks to show that the act was not
wrongful, an excuse centers upon the actor (i.e. D) and tries to show that the actor is not morally culpable for his
wrongful conduct.
3) Specialized Defenses (“Offense Modification”): Justification and excuse defenses apply to all crimes. However,
some defenses, pertain to just one or a few crimes. For example, legal impossibility is a common law defense to the
crime of attempt, or in some jurisdix abandonment is a defense to the crimes of attempt and conspiracy. CrimeSpecific defenses have one common feature: they authorize acquittal of a defendant whose conduct satisfies the
elements of the offense.
4) Extrinsic Defenses (“Nonexculpatory Defenses”)—are defenses that bar a defendant’s conviction or even his
prosecution for reasons unrelated to the culpability of the defendant or the wrongfulness of his conduct. Examples of
such defenses are the statute of limitations, diplomatic immunity, and incompetency to stand trial. Legislative
recognition of such a defense implies that the social interest(public policy interest) served by it outweighs the
utilitarian and/or retributive reasons for punishing the offender.
PEALE, BANACH, BROWN & FARRELL
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JUSTIFICATIONS AND EXCUSES
A. Underlying Theories of Justification
1) Public Benefit Theory: At early common law a crime was considered justifiable if society benefits from the actor’s
conduct. The benefit to society can not be incidental to some selfish goal of the actor; it has to be the underlying
motivation of the actor’s conduct. Although strands of the public benefit concept remain today, it is no longer the
dominant theory of justification.
2) Moral Forfeiture Theory: the Theory is based on the view that people possess certain moral rights or interests that
society recognizes through its criminal laws, e.g. the right to life, but which may be forfeited by the holder of the
right. In such circumstances, society may determine unilaterally that it will no longer recognize the wrongdoer’s
interest in her life. This theory is big in the common law, but some people find it troubling b/c it involves the nonconsensual loss of a valued right.
3) “Moral Rights Theory”: Conduct may be justified on the ground that the actor has a right to protect a particular
moral interest. Whereas forfeiture works in a negative way to deny that there is a socially protected interest lost
when the wrongdoing victim is injured or killed, the moral-rights theory works in a positive sense to provide the actor
with an affirmative right to protect her threatened moral interest.
4) “Superior Interest” (or “Lesser Harm”) Theory: conduct is authorized when the interests of the defendant outweigh
those of the person she harms. Example, if D trespasses by entering V’s house in order to avoid a tornado, her
conduct is justified. Protection of human life is more important that property protection.
B. Underlying Theories of Excuse
1) Deterrence Theory: excuses are recognized in criminal law b/c they identify the circumstances in which conduct is
undeterrable, e.g. when a person is insane or coerced to commit an offense. In such situations, punishment of the
actor is wrong b/c it is inefficacious.
a) Professor H.L.A. Hart has offered a more sophisticated utilitarian account of excuses; the rule that criminal
liability is limited to voluntary wrongdoing allows each person to derive satisfaction from being able to plan her
life with reasonable confidence that she can avoid the sanctions of the law, as long as she chooses to obey
society’s dictates.
2) Causation Theory: Perhaps the broadest non-utilitarian theory of excuse states that a person should not be blamed for
her conduct if it was caused by factors outside her control.
a) example: D is morally blameless and therefore, should be excused, if her criminal conduct was the result of
mental illness or a coercive threat, but not if her criminal conduct was caused by self-induced intoxication or
by any other factor for which she is responsible.
3) Character Theory: Various theorists treat a person’s moral character as central to the concept of deserved
punishment. Normally we infer bad character from an actor’s wrongful conduct; however excuses should be
recognized in the law in those circumstances in which bad character cannot be inferred from the offender’s wrongful
conduct (i.e. person is operating under duress). A person may be held responsible for her character traits, even if she
did not initially choose them, b/c she is responsible for retaining them.
4) “Free Choice” (of Personhood) theory: a person may properly be blamed for her conduct “if, but only if, she had the
capacity and fair opportunity to function in a uniquely human way, i.e., freely to choose whether to violate the
moral/legal norms of society. Free choice exists if at the time of the wrongful conduct, the actor has the substantial
capacity and fair opportunity to : (1) understand the facts relating to her conduct, (2) appreciate that her conduct
violates society’s mores, and (3) conform her conduct to the dictates of the law. A person lacking in any of these
regards does not deserve to be punished, b/c she lacks the basic attributes of personhood that qualify her as a moral
agent.
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C. Justification Defenses and Mistake-of-Fact Claims:
two questions arise when a defendant asserts a justification defense, and yet also claims a mistake of fact: (1) is a defendant
entitled to acquittal if she is mistaken as to the existence of facts that would justify her conduct; and (2) If she is entitled to be
acquitted, should the law describe her conduct as justified or excused?
1) The law is clear-cut in situations of the sort described here. A defendant is entitled to be acquitted on the basis of self
defense if her mistake of fact regarding the threat was reasonable. More specifically, the rule is that the defendant is
justified, and not merely excused, in using deadly force if, at the time of the homicide, she had reasonable ground for
believing and did believe, that she was in imminent danger of death or grievous bodily injury, and that deadly for was
necessary to repel the threat, although it turned out later that these appearances were false. (critics of the general rule,
maintain that a reasonable-but-mistaken actor is morally blameless and, therefore, should be excused; but it is wrong
to suggest that the act of killing an innocent person or one who does not pose a threat o the life of the actor is
justifiable.)
D. Justification v. Excuse:
Why does it Matter (the MPC says it really should not matter) However, advocates of drawing distinctions offer a number of
justification for their position:
1) Moral Guidance: People should take justifiable rather than wrongful-but-excusable paths. If the law does not label
the paths clearly, then the system has failed to provide adequate guidance.
2) Retroactivity:
a) It would be wrong to deny a justification defense at trial even if it had been repealed between the time of
the criminal conduct and the trial. A justification defense defines conduct that society wishes to encourage
or at least tolerate. People should be allowed to rely on these representations.
b) The same cannot be said about excuses. Excuse defenses are not directives to would-be actors regarding the
permissibility of particular conduct; excuses identify circumstances under which a person ought to be
relieved of criminal responsibility for her conduct b/c she is undetterable or is not morally to blame for her
conduct. Any person who investigates excuse law and relies on it before she acts, however, is not the type
of person to whom the excuses are meant to apply.
3) Accomplice Liability:
a) If Conduct A is justified, D has acted properly. X, therefore, should be acquitted as an accomplice in the
commission of the justified act.
b) If Conduct A is excused b/c D was insane lets say. The fact that D is relieved of responsibility due to mental
illness should not bar conviction of X, a sane person, who assists in the wrongful act.
4) Third Party Conduct: Generally speaking, justifications are universalized, whereas excuses are individualized.
a) That is, if D is justified in performing act A to protect her own rights, a Third person X, is also justified in
doing A to protect D.
b) An excuse however, may only be invoked by the person who suffers from the excusing condition.
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SELF DEFENSE
Every State in the United States recognizes self-defense, including the use of deadly force in self-protection, as a justification
defense.
A. General Principles:
At common law, a person who is not an aggressor is justified in using force upon another if he reasonably believes that such force
is necessary to protect himself form imminent use of unlawful force by the other person. However, deadly force is unjustified in
self-defense unless the actor reasonably that its use is necessary to prevent imminent and unlawful use of deadly force by the
aggressor. And, in some jurisdictions, a person may not use deadly force against an aggressor if he knows that he has a completely
safe avenue of retreat. The defense of self-defense, as is the case with other justification defenses, contains:
1) a “necessity” component: force should not be used against another person unless, and only to the extent that it is
necessary.
2) a “proportionality” requirement: provides that a person is not justified in using force that is excessive in relation to
the harm threatened.
3) And a reasonable-belief rule that overlays the defense: a person is justified in using force to protect himself if he has
reasonable ground for believing, and actually believes, that such force is necessary to repel an imminent unlawful
attack, although appearances prove to be false. (some states permit an unreasonably mistaken actor to assert an
“imperfect” or “incomplete” claim of self-defense, which mitigates the offense to manslaughter.
B. Deadly Force: Clarification of the General Principles
1) “Deadly Force” definition: Deadly force is force likely to cause death or grievous bodily injury. That is, force
characterized as deadly if death or grievous injury is the likely outcome, regardless of the actor’s intentions or the
actual result.
2) The “Non-Aggressor” Limitation:
a) definition of aggressor: An aggressor “has no right to a claim of self-defense.” An aggressor is a person
whose “affirmative unlawful act (is) reasonably calculated to produce an affray foreboding injurious or fatal
consequences.
1. A person is an aggressor even if he merely starts a non-deadly conflict (i.e. a fist fight) (however,
one who makes a mere insult does not constitute an aggressor)
2. A person is not an aggressor if his conduct, no matter how provocative, is lawful. (example, if D a
police officer , comes upon a fight and threatens to use deadly force unless the combatants desist,
his conduct cannot reasonably be interpreted as an aggression.)
b) Removing the Status of “aggressor”: The initial aggressor in a conflict may purge himself of that status and
regain the right of self-defense.
1. deadly aggressor: the only way a deadly aggressor may regain the right of self-defense is by
withdrawing from the affray and successfully communicating this fact, either expressly or
impliedly, to his intended victim.
2. Nondeadly aggressor: Case law is split here
a. many courts provide that when the victim of a non-deadly assault responds with deadly
force, the original aggressor immediately regains his right of self-defense. (this is in line
with MPC)
b. Other Courts say that D is not entitled to use deadly force against V unless he avails
himself of an obvious safe retreat, if one exists. If no place exists, or if D does retreat and
V pursues him, D may resort to deadly force. (even if he D does not retreat, he will
usually be convicted only of manslaughter, rather than murder)
3) Necessity Requirement: The Issue of Retreat
a) No-Retreat Jurisdictions: a majority of jurisdictions have adopted the rule that a non-aggressor is permitted
to use deadly force to repel an unlawful deadly attack, even if he is aware of a place he can retreat in
complete safety.
b) Retreat Jurisdictions: a minority of states provide that an innocent person threatened by deadly force must
retreat rather than use deadly force, if he is aware that he can do so in complete safety. (requires that a place
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of complete safety exists, and that the innocent person is aware of this place). The practical effect of these
two condition is that people under attack rarely are compelled to retreat.
1. The Castle Exception to the Retreat Requirement: The Castle exception is a universally recognized
one that a non-aggressor need not retreat if he is attacked in his dwelling place, even though he
could do so in complete safety.
2. What about Co-Dwellers: a majority of retreat jurisdictions (which, it will be remembered
constitute a minority of the states overall) have adopted the rule that the assailant’s status as a codweller is irrelevant, i.e. the innocent person need not retreat from the home, even if the aggressor
also lives there.
4) Nature of the Threat: “imminent, unlawful deadly force”
a) Imminent: Until the threat is imminent (i.e. immediate), use of force is premature. (might be an unfair rule:
what if V tells his wife, D, he is going to kill her, goes outside to his car to get his gun, D kills V. Strictly
speaking, D’s use of force was premature)
b) Unlawful Force: A person may not defend himself against the imposition of lawful, i.e. justified force.
Conduct that would constitute a crime or a tort is “unlawful”, even if the actor could escape conviction or
liability by assertion of an excuse defense.
C. Deadly Force: “Imperfect” Self-Defense Claims:
In general self defense is an all or nothing defense. Some states, however, recognize a so-called “imperfect” or “incomplete”
defense of self-defense to murder, which results in conviction for the lesser offense of manslaugher. There are two versions of
imperfect self-defense:
1) First, some courts provide that a non-deadly aggressor who is the victim of a deadly response must retreat to any
known place of complete safety before using deadly force. If he fails to do so, his right of self-defense is considered
imperfect.
2) Second, some states provide that a person who kills another b/c he unreasonably believes that factual circumstances
justify the killing, is guilty of manslaughter, rather than murder. That is, D is guilty of manslaughter if he kills V in
either of the following circumstances:
a) d unreasonably believes that V is about to use deadly force although, in fact, V intends no harm or
nondeadly harm, or
b) V intends to use deadly force, but D fails to realize, as a reasonable person, that nondeadly force would
suffice.
D. Deadly Force in Self-Protection: Rationale for the Defense
1) Utilitarian Explanations:
a) Killing in self-defense may be socially desirable. If someone must die in a deadly conflict it is better that
the aggressor, an anti-social individual as manifested by his conduct is the victim.
b) Deterrence: The aggressor will be deterred by fear that his intended victim will resist the attack.
2) Non-Utilitarian Explanations:
a) the aggressor ,through his threats, on an innocent persons life forfeits his right to life.
b) The idea of physical security as one of the natural rights of mankind has a long history. Therefore, the
innocent person is justified in vindicating his autonomy by taking the aggressor’s life.
c) A third rationale of self-defense is that the right of an innocent person to life is morally superior to an
aggressor’s right to life. (Ties into #1, moral forfeiture)
d) Self-defense as a form of private punishment of a wrongdoer.
E. Self-Defense: Special Issues
1) The Reasonable-Belief Standard: More Reflections about the Reasonable Person: the law of self-defense represents a
compromise. The right to self-defense is not based on an objective reality, but neither is it based solely on the actor’s
subjective impressions: a person may defend himself if, and to the extent that a reasonable person would believe it
under the circumstances.
a) The Issue: Who is this reasonable person that the defendant is compared to.
1. People v. Goetz: among the questions that one may pose about the reasonable person in this case
are: (1) like Goetz, is he a prior mugging victim, (2) Is he an experience NYC subway rider; and
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(3) to what extent would he consider the race, age, sex, body language, and or apparel of the
victims in determining whether deadly force is necessary?
2. State v. Wanrow: (mother on crutches, shoots drunk child molester in enters her friends house):
Among the questions that one may pose about the “reasonable person” in this case are: (1) Is the
“reasonable person” male or female?, (2) is she diminutive and on crutches; and (3) What
knowledge or beliefs would she possess regarding Wesler’s background.
b) The Law: the factfinder should hold the accused to the standard of the “reasonable person in the actor’s
situation.. But what the word situation entail.
1. Most courts have rejected the wholesale subjectivization of the “reasonable person standard.
Nonetheless, in determining what a reasonable person in the actor’s situation or circumstances
would do, the defendant is entitled to consider “more than the physical movements of the assailant.
The terms “situations and circumstances” include any relevant knowledge the defendant has
about that person. They also necessarily bring in the physical attributes of all persons
involved, including the defendant. Furthermore the defendants circumstances encompass
any prior experience he had which could provide a reasonable basis for the belief that
another person’s intentions were to harm him or that the use of deadly force was necessary
under the circumstances.
2. Thus Goetz’s prior mugging experiences were relevant in determining the reasonableness of his
belief that he was about to be attacked, and Wanrow was properly measured by a standard of a
woman of her height, weight, strength, and physical handicap. And, applying this standard, a
battered woman who uses deadly force against her abusive partner should be held to a standard of a
reasonable woman who had experienced the same abuse as has the battered woman.
2) Battered Women Syndrome
a) Battered-women cases, and the legal issues they raise can be divided into 3 groups:
1. Confrontational Homicides: cases where the women kills her partner during a battering incident. In
these cases, an instruction on self defense is always given.—but the jury still might not buy the
defense.
2. NonConfrontational Homicides: when the battered women kills her abuser while he is asleep or
during a significant lull in the violence. Courts are divided on whether self-defense may be
claimed in these types of cases (creates serious imminency problems).
3. Third Party Hired Killer-court have unanimously refused to permit instructions in third-party hired
killer cases.
b) Evidentiary Issues:
1. Prior Abuse by the Decedent: In general, a battered woman may introduce evidence of the
decedent’s prior repeated abusive treatment of her, in support of her claim of self-defense.
2. Expert Testimony Regarding Battered Woman Syndrome:
a. Battered woman syndrome evidence is admissible in most appropriate battered woman
self-defense cases (appropriate cases being largely only those cases where the women
killed during a beating or when the abuser’s actions prompted her to believe that an attack
was immediately forthcoming.)—there is a great deal of disagreement between the courts
on how this evidence should be used.
3) Risk to Innocent Bystandards: Generally the courts apply a transferred justification doctrine, similar to the
transferred-intent rule; a defendant’s right of self-defense “transfers (just as his intent to kill does) from the intended
to the actual victim. (unless the defendant acts recklessly in defending himself, then some cts might hold him for
manslaughter of a bystander, or reckless endangerment if no one is killed.)
4) Resisting an Unlawful Arrest:
a) The generally-stated common law rule is that a person may use as much force as is reasonably necessary,
short of deadly force, to resist an illegal arrest. If the arrestee uses deadly force, he is guilty of
manslaughter, rather than murder.
b) Today, the right to resist an excessive force arrest remains untrammeled. However, a few states by stature
or case law have abolished or limited the defense in non-excessive-force circumstances. (trending towards
the MPC)
F. Model Penal Code
1) Force in General
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a)
Permissible use: Subject to various limitations, a person is justified in using force upon another if he
believes that such force is immediately necessary to protect himself against the exercise of unlawful force by
the other on the present occasion. Two major differences from CL:
1. the MPC is drafted in terms of the actor’s subjective belief in the need to use force; his belief need
not be reasonable. (however, a reasonableness component is reincorporated in here through Sec.
3.09)
2. The MPC substitutes the phrase “immediately necessary on the present occasion,” for the common
law imminency requirement. This shift in language is intended to authorize self protective force
sooner than is allowed at common law. Ie. in the example where the husband is going to get his
gun out of the car to kill his wife, the wife can kill him in self defense under the Code.
b) Impermissible use: Resisting an Unlawful Arrest:
1. In a departure from common law principles, a person may not use force to resist an arrest that he
knows is being made by a police officer, even if the arrest is unlawful. (except if the officer is using/ or
going to use excessive force)
2) Deadly Force in General
a) “deadly force”: is force used for the purpose of causing or that the actor knows to create a substantial risk of
causing death or serious bodily injury.
1. The definition is broader than the Common Law version in one respect. At Common law, force
that is not likely to cause death or serious bodily injury does not constitute deadly force, even if the
actor’s purpose is to kill. Under the code, however, one who acts with the purpose of causing death
or serious injury although such an outcome is highly unlikely, falls within the Code’s “deadly
force”.
b) Permissible Use: Deadly force is unjustifiable unless the actor believes that such force is immediately
necessary to protect himself on the present occasion against: (1) death,; (2) serious bodily injury, (3)
forcible rape, (4) kidnapping. (kidnapping appears to be questionable basis for deadly force)
c) Impermissible Use:
1. Deadly force by Aggressors: the Code prohibits the use of deadly force by a person who, “with the
purpose of causing death or serious bodily injury, provoked the use of force against himself in the
same encounter.” (note: under the code: if D unlawfully starts a non-lethal conflict, he does not
lose his privilege of self-defense if V escalates it into a lethal assault.)
2. Retreat: The Model Code applies a version of the minority common law rule relating to retreat: a
person may not use deadly force against an aggressor if he “knows that he can avoid the necessity
of using such force with complete safety be retreating.
a. exception: retreat is not necessary if the actor would have to retreat from his home or
place of work
b. Exception to the Exception: retreat from the home or office is required if:
1- if the actor was the initial aggressor, and wishes to gain his right of selfprotection; or
2- even if he was not the aggressor, if he is attacked by a co-worker in their place or
work. (Note: the code does not require retreat by a non-aggressor in the home,
even if the assailant is a co-dweller)
3.
Applying the MPC rules:
a. First, if D did not start the unlawful conflict, he may use deadly force against V if he
believes that such force is necessary on the present occasion to combat an unlawful deadly
assault by V, if any of the following circumstances exist:
1- D has retreated, but V continues to pursue him
2- D knows of no safe place to retreat
3- Or even if D could have retreated and did not, if D is in his home or place of
work, and V is not in his place of work.
b. Second, If D did start the unlawful conflict but did so without the purpose of provoking a
deadly conflict—e.g. he lightly struck V, but v escalates matters by menacing D with a
knife—D may still use deadly force in all of the circumstances noted above. (but note D
may prosecuted for the initial assault or battery that started the conflict.)
c. Third, D may not kill V in self-defense if he started the conflict with the intent to cause
death or GBH, unless he withdraws from the conflict. If he does so, D’s privilege to kill is
restored, although he may be charged with a crime pertaining to the initial acts that
commenced the conflict.
3) Mistake of Fact Claims and Model Code Justification Defenses: 2 prong analysis
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a)
Initially each justification defense dealing with the use of defensive force is defined solely in terms of the
defendant’s subjective belief in the necessity of using such force, or in terms of his subjective belief
regarding other circumstances that are material to the particular justification claimed.
b) § 3.09(2) adds to this: it provides that when the defendant is reckless or negligent in regard to the facts
relating to the justifiability of his conduct, the justification defense is unavailable to him in a prosecution
for an offense for which recklessness or negligence suffices to establish culpability.
c) The practical effect of § 3.09(2) and the various justification defenses is that the code recognizes imperfect
defenses. This outcome is sensible, b/c the code (and minority common law) permits conviction of an
offense in accord with the D’s culpability as to mistake (e.g. negligent homicide). Whereas the majority CL
position allows for conviction of D for a more serious offense than his culpability would suggest is
appropriate.
4) Justification defenses and Risks to Innocent Bystanders: If a person justifiably uses force against an aggressor, but
uses such force in a manner that is reckless or negligent in regard to the safety of an innocent bystander, the
justification defense, which is available to the person in regard to the aggressor, is unavailable to him in a prosecution
for such recklessness or negligence as to the bystander. (convictions of this kind are difficult to obtain)
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DEFENSE OF OTHERS
A. General Rule:
Generally speaking, a person is justified in using force to protect a third party from the unlawful use of force by an aggressor.
Some potential limits to the rule exist:
1) First, the defense was originally limited to the protection of persons related to the intervenor by consanguinity,
marriage, or employment relation. The limitation is seldomly enforced today.
2) Second, some jurisdictions still utilize an act-at-peril rule: an intervenor could only use force to defend a third party
if the party being defended would in fact have been justified in using some degree of force in self defense. (this was
once the majority view; based on a fear of people interfering with plain clothed cops attempting lawful arrests).
3) More Prevalent Modern View: an intervenor may use deadly force or nondeadly force to the extend that such force
reasonably appears to the intervenor to be justified in defense of the third party.
B. Model Penal Code:
1) Under the code, subject to the retreat provisions discussed in the next paragraph, an intervenor is justified in using
force upon another person in order to protect a third party if three conditions are met:
a) the intervenor uses no more force to protect the third party than the intervenor would be entitled to use in
self-protection, based on circumstances as she believes them to be,
b) under the circumstances as the intervenor believes them to be, the third party would be justified in using
such force in self-defense; and
c) the intervenor believes that her intervention is necessary for the protection of the 3 rd party.
2) The Code’s self-protection retreat rules have limited applicability in the context of the defense of another person.
a) First, if the intervenor would be required to retreat to a place of known safety if she were protecting herself
in such circumstances, she is not required to retreat before using force in protection of the third party, except
in the unlikely circumstance that she knows that such retreat will assure the latter’s complete safety.
b) Second, she is required to attempt to secure the defended party’s retreat in those circumstances in which the
latter would be required to retreat under the rules of self-protection, assuming that the intervenor knows that
the third party can obtain complete safety by retreating.
c) NO ACT-AT-PERIL Rule: As with other justification defenses, the applicability of the defense of others
provision is based on the intervenor’s subjective beliefs. § 3.09(2) once again adds an objective prong,
therefore if D’s belief in this regard was negligent or reckless, the justification would be unavailable to her
in a prosecution for negligent or reckless homicide.
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DEFENSE OF PROPOERTY OF HABITATION
A. Defense of Property
(note you may be able to use deadly force to prevent destruction of Prop)
1) General Rule: A person in possession of real or personal property is justified in using nondeadly force against a
would be dispossessor if he reasonably believes that such force is necessary to prevent imminent and unlawful
dispossession of the property. Under no circumstances may a person use deadly force to prevent dispossession.
Clarification of the rule:
a) Possession versus Title of Property: the privilege of defense of property entitles a person to use necessary
force to retain rightful possession of, as distinguished from title to, personal or real property. (i.e. a tenant
may use nondeadly force, if necessary to prevent his landlord from wrongfully evicting him)
b) Necessity for the Use of Force: A person may use no more force than reasonably appears necessary to
defend his possessory interest in the property. The necessity requirement has two elements:
1. First, a person should not use force until he has sought to avoid a physical conflict by requesting
desistance by the would be dispossessor. (a request is unnecessary if it would be futile, or if it
would risk the defender’s or another person’s safety, such as when the wrongdoer attempts to take
property by force rather than stealth)
2. Second, even if force reasonably appears necessary, a defender of property may not use force
beyond that which the urgency of the occasion reasonably requires. (i.e. D may not severely kick V
when lesser force would suffice to protect the property)
c) Deadly Force: Deadly force is never permitted in defense of property, even if it is only the only means of
preventing the loss. However, the right to use non-deadly force to protect property is sometimes transformed
into an independent right to use deadly force in self-protection or defense of a third party. This right,
however is based on D’s privilege to protect himself form an imminent, unlawful deadly attack, and not on
the basis of his interest in the property.
d) Threat to Use Deadly Force: D points a gun at V and threatens to kill V unless he leaves his land. If D is
charged with assault, and asserts the claim of defense-of-property, should he be denied the defense b/c he
threatened a forbidden act. The Courts are split on this one. Moore says Yes.
e) Claim of Right: IF D knows, believes, or as a reasonable person should believe, that V has a legitimate
claim of right to possession of the property in question, D is not privileged to use force against V.
f) Recapture of Property: In order to discourage self-help and consequent breaches of the peace, a person may
not ordinarily use force to recapture property of which he has been unlawfully dispossessed.
1. Exception to the Rule: A person who acts promptly after dispossession may use non-deadly force,
as reasonably necessary, to regain or recapture his property. I.E. if someone steals your car, you
may follow them in hot pursuit and use non-deadly force, if necessary, to recapture it.
B. Defense of Habitation
1) Rules Regarding Use of Deadly Force: A person may use deadly force to defend his home. However, the scope of
this privilege has changed over time; and, no single common law or statutory rule applies today.
a) Early Common Law Rule: The broadest right to use deadly force is found in the original common law
principle that a home-dweller may use deadly force upon another person if he reasonably believes that such
force is necessary to prevent an imminent and unlawful entry of his dwelling. (simple entry alone is enough
if D believes deadly force is necessary)
b) “Middle Approach”: a less broad approach to the defense of habitation provides that a person may use
deadly force if he reasonably believes that: (Most Cts use this, burglary, burglary + any force, forcible
felonies, dispossession, and arson)
1. the other person intends an unlawful and imminent entry of the dwelling;
2. the intruder intends to injure him or another occupant, or to commit a felony therein; and
3. deadly force is necessary to repel the intrusion.
c) “Narrow Approach”: a narrower version of the defense provides that a person is justified in using deadly
force upon another if he reasonably believes that: (California draws the line here, i.e. forcible felonies,
dispossession, + arson)
1. the other person intends an unlawful and imminent entry of the dwelling
2. the intruder intends to commit a forcible felony therein or to kill or seriously injure an occupant;
and
3. the force is necessary to prevent the intrusion
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C. Relationship to Other Defenses
1) Self-Defense and Defense of Others: much broader than self defense, defense of third party.
a) The habitation defense, permits use force disproportional to the physical harm threatened (unlike self
defense)
b) The right to defend the home begins when entry to the dwelling is imminent, which may be well before the
dweller’s physical well-being is in imminent jeopardy.
D. Spring Guns:
1) Common Law Rule: a mechanical device may be used “where the intrusion is, in fact, such that the person, were he
present, would be justified in taking the life or inflicting the bodily harm with his own hands. This is an act at your
peril test, ie you had better get it right.
E. Model Penal Code
1) Permissible Use of Nondeadly Force
a) Force to Protect Property: (very similar to CL) The Code provides that a person may use nondeadly force
upon another person to prevent or terminate an entry or other trespass upon land, or carrying away of
personal property, if he believes three conditions exist:
1. the other person’s interference with the property is unlawful
2. the intrusion affects property in the actor’s possession or in the possession of someone else for
whom he acts; and
3. nondeadly force is immediately necessary
b) Force to Recapture Property: (more expansive than CL) The code provides that a person may use nondeadly
force to re-enter land or to recapture personal property if:
1. he believes that he or the person for whom he is acting was unlawfully dispossessed of the
property, and either
2. (a) the force is used immediately after dispossession; or (b) even if not immediate, he believes that
the other person has no claim of right to possession of the property. In the 2(b) situation, however,
reentry of land (as distinguished from recapture of personal property) is not permitted unless the
actor also believes that it would constitute an “exceptional hardship” to delay re-entry until he can
obtain a court order.
2) Impermissible Use of Nondeadly Force: Three exceptions to the general rules
a) First, force is not “immediately necessary” unless the defender first requests desistance by the interfering
party. A request is not required however, if the defender believes that a request would be useless, dangerous
to himself or another, or would result in substantial harm to the property before the request could effectively
be made.
b) Second, a person may not use force to prevent a trespass to personal or real property if he knows that to do
so would expose the trespasser to a substantial risk or serious bodily injury
c) Third, the Code provides that A, a prior Dispossessor, may not use force to resist re-entry or recaption of
property by B, even if he believes that B is acting unlawfully, if B’s re-entry or recaption is otherwise
justifiable.
3) Use of Deadly Force-Deadly force in defense of property is prohibited except in two circumstnaces:
a) Dispossession of a Dwelling: A person may use deadly force upon an intruder if he believes that:
1. the intruder is seeking to dispossess him of a the dwelling
2. the intruder has no claim of right to possession of the dwelling
3. and such force is immediately necessary to prevent the dispossession
b) Prevention of Serious Property Crimes: (this section is very controversial) a person may use deadly force
upon another, inside a dwelling or anywhere else if he believes that:
1. the other person is attempting to commit arson, burglary, robbery, or felonious theft or property
destruction
2. such force is immediately necessary to prevent the commission of the offense; and either
3. (a) the other person previously used or threatened to use deadly force against him or another person
in his presence, or (b) use of nondeadly force to prevent commission of the offense would expose
him or another innocent person to substantial danger of serious bodily injury.
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c)
Spring Guns: The model penal codes prohibits the use of a mechanical device to protect property if it is
intended to cause, or is known by the user to create a substantial risk of causing death or serious bodily
injury.
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LAW ENFORCEMENT
A. Arrests
1) By Police Officers
a) A police officer is authorized to make an arrest, whether for a felony or for a misdemeanor, if it is made
pursuant to an arrest warrant based on “reasonable” or “probable cause”.
b) At common law, an officer was also justified in making a felony arrest without a warrant, as long as the
arrest was based on probably cause; warrantless misdemeanor arrests, however, were valid only if the
offense occurred in the officer’s presence.
2) By Private Persons
a) The common law provides that a private citizen may arrest another person for a felony, or for a
misdemeanor involving a breach of peace, if:
1. the crime actually occurred (act at your peril with respect to this prong)
2. and she reasonably believes that the suspect committed the offense.
B. Force Used in Law Enforcement: Common and Statutory Law
1) NonDeadly Force: A police officer or private person is justified in using nondeadly force upon another if she
believes that: (1) such other person is committing or has committed a felony, or a misdemeanor amounting to a
breach of the peace; and (2) the force used is necessary to prevent the commission of the offense, or to effectuate an
arrest, i.e., to make the arrest or to prevent the arrestee’s escape.
2) Deadly Force:
a) Crime Prevention: may never be used in the prevention of a misdemeanor. Deadly force is permitted,
however, in the prevention of a felony. A split of authority exists regarding the scope of the right to use
deadly force in felony crime prevention.
1. Broad Defense: Old Common Law Rule: the broad view is that a police officer or private person is
justified in using deadly force upon another to prevent a felony.
2. Narrow Rule: Modern Common Law Rule: The right to use deadly force is limited to the
prevention of “forcible” or atrocious” felonies.
b) Effectuation of an Arrest:
1. By Police Officers: A person may use deadly force upon another if she reasonably believes: (1) the
suspect committed a forcible or nonforcible felony; and (2) such force is necessary to make the
arrest or to prevent the suspect from escaping. & post Garner you believe the felon is a danger to
society.
2. By Private Persons: a private person may use deadly force, if reasonably necessary, to arrest or
apprehend a felon, but the defense is narrower than the comparable right held by police officers.
(question this against class notes)
C. Force Used in Law Enforcement: Constitutional Limits
1) Tennesse v. Garner: The Common Law Restricted:
a) Facts: Cop chases unarmed burglar, 15 year old kid, to the back of the house. Kid begins to climb over the
fence, cop yells stop, kid continues to climb, cop shoots him in the head.
b) Held: The Supreme Court held that a police officer violates the Fourth Amendment prohibition on
unreasonable searches and seizures if she uses deadly force to effectuate an arrest unless: (1) she “has
probable cause to believe that the suspect poses a significant threat of death or serious injury to the
officer or others,” and (2) such force is necessary to make the arrest or prevent escape. In regard to the
necessity element, a warning if feasible, must be given to the suspect before deadly force is employed.
(Must be a serious felony to use deadly force, but the line is fuzzy)
D. Model Penal Code
1) Crime Prevention
a) Use of Force in General: a police officer or private person is justified in using force upon another if she
believes that; (1) such other person is about to commit suicide, inflict serious bodily injury upon herself, or
commit a crime involving of threatening bodily injury, damage to or loss of property, or a breach of the
peace; and (2) the force is immediately necessary to prevent the commission of the aforementioned act.
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b) Use of Deadly Force: A police officer or private person may not use deadly force to prevent the
commission of a crime unless she believes that: (1) a substantial risk exists that the suspect will cause death
or serious bodily injury to another person unless she prevents the suspect from committing the offense; and
(2) use of deadly force presents no substantial risk of injury to bystanders. (note here a private citizen can
use deadly force in crime prevention even if he is acting alone, ie. not with a cop; this is not the case with
effectuating an arrest)
2) Effectuation of an Arrest
a) Use of Force in General: A police officer or private person is justified in using force upon another to make
or assist in making an arrest, or to prevent the suspect’s escape, if the actor: (1) believes the fore is
immediately necessary to effectuate a lawful arrest or to prevent the suspects escape; and (2a) makes known
to such person other person the purpose of the arrest or (2b) believes that such other person understands the
purpose of the arrest or that notice cannot reasonably be provided.
b) Use of Deadly Force;
1. Private Person: Deadly force may never be used by a private person, acting on her own, to make an
arrest or to prevent a suspects escape.
2. By Cop or person aiding a Cop: deadly force may be employed by a police officer, or a private
person assisting someone she believes is a law enforcement officer, to make an arrest or to prevent
the suspect’s escape if:
a. the arrest is for a felony
b. the requirements for the use of force set out in subsection (a) are satisfied;
c. the actor believes that the use of deadly force creates no substantial risk of harm to
innocent bystanders; and either
d. (4a) the actor believes that the crime included the use or threatened use of deadly force; or
(4b) the actor believes that a substantial risk exists that the suspect will kill or seriously
harm another if hr arrest is delayed or if she escapes.
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CRIMINAL HOMICIDE
A. Homicide:
the killing of a human being by another human being. Homicide is a neutral term. That is, homicide can be innocent or criminal.
1) The Beginning of Human Life: At common law, a fetus must be born alive to be considered a “human being” within
the meaning of that term in criminal homicide law.
2) The End of Human Life: death occurs when, according to acceptable medical standards, the individual experiences an
irreversible cessation of breathing and heartbeat (the common def), or there is an absence of brain activity. (modern
medical def)
3) Year-and-a-day-Rule: was big under old common law, but b/c of advances in medical technology it has largely been
abandoned.
B. Criminal Homicide
1) “Murder” and “Manslaughter”: Common Law Definitions
a) The common law definition of murder is the killing of a human being by another human being with malice
aforethought.
b) Manslaughter is “an unlawful killing of a human being by another human being without malice
aforethought.
2) Murder: Definition of “Malice Aforethought”
a) “Aforethought”: The word “aforethought” has always been superfluous to the definition of murder in
American Law.
b) A person who kills another acts with the requisite “malice” if she possesses any one of four states of mind:
1. the intention to kill a human being
2. the intention to inflict GBI on another
3. an extremely reckless disregard for human life
4. the intention to commit a felony during the commission or attempted commission of a death results.
3) Manslaughter: Types of “Unlawful Killings”: Traditionally three types of manslaughter:
a) Voluntary Manslaughter: an intentional killing committed in “sudden heat of passion” as the result of
adequate provocation.
b) Involuntary Manslaughter: an unintentional killing that is the result of “an act, lawful in itself, but done in an
unlawful manner, and done without due caution or circumspection.” (in modern terminology, this is a
homicide committed in a criminally negligent manner)
c) “Misdemeanor Manslaughter”: an unintentional killing that occurs during the commission or attempted
commission of an unlawful act may constitute involuntary manslaughter.
4) Statutory Reformulation of Criminal Homicide Law
a) The Division of Murder into Degrees (“Pennsylvania Model”)-Dominant Statutory Alternative
1. First Degree Murder: three types of murder fall into this category:
a. First, murders that are perpetrated in a specified manner (in the original Penn statute there
were only two: by means of poison, or lying in wait) are considered sufficiently morally
heinous to merit the state’s highest penalty.
b. Second, a wilful, deliberate, and premeditated killing is first degree murder.
c. Third, a killing that occurs during the perpetration or attempted perpetration of an
enumerated felony (in the original version: arson, rape, robbery, and burglary) is treated as
murder in the first degree.
2. Second Degree Murder: All other forms of murder constitute second-degree murder. I.e.
intentional killings that are not premeditated and deliberate; intent to inflict-grievous-bodily-injury
killings, reckless killings; and deaths that occur during the commission of felonies other than those
enumerated in first degree.
b) While many states continue to use the Penn Model, some have modified it by dividing murder into 3
degrees, and others have opted to go with the MPC.
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C. Murder: Intent to Kill:
1) Proving Intent to Kill
a) Natural-and-Probable-Consequences Rule: In the absence of evidence that D was not an ordinary person, the
jury may infer that D intended the natural and probably consequences of her actions
b) Deadly-Weapon-Rule: When a person kills another with a deadly weapon, proof of intent to kill is
buttressed further. (ties in with probably consequences rule)
2) “Willful, Deliberate, Premeditated” Killings-What does this phrase mean?
a) Deliberate: “to have measured and evaluated the major facets of a choice or problem.” (i.e. a cool purpose)deliberation speaks to the quality of the thought process, where premeditation speaks to the quantity of time
the person spent formulating her design. (Specific Intent)
b) “Premeditated”:
1. Minority view: The time required to establish premeditation may be of the shortest possible
duration and may be so short that it is instantaneous, as long as the intent is formed before the
homicide is committed. (problem with this: if you look at premeditation as nothing more than
intent, then you no longer have a substantive difference between M1 and M2)
2. Majority View: is that you have to stop and think in order to have premeditation, no fixed time is
required though.
3. Factors for Determining Premeditation:
a. want of provocation on the part of the deceased
b. the conduct and statements of the defendant before and after the killing
c. threats + declarations by the defendant before and during the course of the killing.
d. Ill-will or previous difficulty between the parties
e. The dealing of lethal blows after the deceased has been felled and rendered helpless
(moore says this is ambiguous)
f. Evidence the killing was done in a brutal manner (Moore says ambiguous)
D. Murder: Intent to Inflict Grievous Bodily Injury (2nd degree)
1) Grievous bodily injury is an injury that must be grave, not trivial, but need not be ‘such as may result in death. It is
an injury that “gives rise to the apprehension of danger to life, health, or limb.
2) MOORE on GBH: this is a forfeiture rule b/c it changes the mens rea necessary to get the defendant on murder, i.e.
the mens rea does not have to match up with the actus reus. (this is a bad idea in Moore’s opinion)
E. Murder; Extreme Recklessness (“Depraved Heart Murder) (2nd Degree)
1) A depraved heart murder is a “reckless” or “extremely reckless” homicide.
2) Facts Supporting a Finding of Extreme Recklessness: a jury may find malice based on extreme recklessness if a
person, without intending to kill or seriously injure another:
a. intentionally shoots a firearm in a crowded room
b. drives her car at a very high rate of speed in inclement weather and while highly intoxicated
c. or plays russian roulette by loading a gun with one “LIVE” and four “dummy” shells, spinning the revolver,
and intentionally firing it at another person.
d. Malice may also be evidenced by an omission , such as when a parent, out of indifference, fails to feed her
infant for two weeks.
3) Moore on Depraved Heart Murder: The probability of death is not a huge factor, what differentiates depraved heart
murder from other reckless/negligent killings is that you had no reason to impose the risk, i.e. we are trying to
capture that “I don’t give a dam” attitude. (Example is the Pitbull case, where Pitbull used to guard Pot Plants)
4) Note: A person kills “recklessly” if she consciously disregards a substantial and unjustifiable risk to human life.
(Awareness of the risks is huge here). B/c if a person should be, but is not, aware that her conduct is very risky then
the killing only constitutes involuntary manslaughter.
F. Murder, Felony-Murder Rule (nails negligent killings)
1) The Rule: Under most modern murder statutes, a death that results from the commission of an enumerated felony
(usually a dangerous felony, such as arson, rape, robbery, or burglary), constitutes first degree murder; if a death
results from the commission of an unspecified felony, it is second-degree murder.
a) Example of the rule: D2 is guilty of felony murder if she accidentally shoots V2 in the chest during the
commission of a felony, and V2 dies years later from a heart attack during a backyard basketball game, as the
result of permanent damage to the heart produced by the original wound.
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2) Rationales used in support of the Rule:
a) deterrence
b) reaffirming the sanctity of human life.
c) Culpability: forfeit our concern.
d) Eases the Burden on the prosecutor in proving malice aforethought, i.e. he does not need to worry about
proving intent to kill, or to inflict GBH, or even that the felon was aware that her conduct was highly
dangerous to human life (depraved heart). Instead all the prosecutor needs to show is that D committed the
felony and that the death occurred during its commission.
3) Limits on the Rule
a) Inherently-Dangerous-Felony Limitation: many states have limited the rule to homicides that occur during
the commission of felonies dangerous to human life. But What is an Inherently Dangerous Felony, 2
approaches used by Cts;
1. examine the felony in the abstract, ie by looking at the statute and determine if the crime can be
performed without endangering lives. (judge does this)—Cali + Majority take this position.
a. Case: One state court has held that theft is not an inherently dangerous felony, even though
the felon in the particular case caused the death of a cancer ridden child by falsely claiming
that he had a cure for the disease, which induced the parents to forego traditional medical
treatments.
2. examine in the abstract, and the consider the facts of the actual case—if the felony is dangerous
under either approach, it may serve as the predicate for a felony-murder prosecution.
3. NOTE: Either version of the Inherently dangerous limitation, makes felony murder track very
closely to depraved heart murder, except that felony murder will nail the rare felon who is unaware
of the dangerousness of his actions.
b) Independent-Felony (or “merger”) Limitation: In many (moore said all) states, the felony murder rule does
not apply if the underlying felony is an offense that is an integral part or is included in fact in the homicide.
In such circumstances, the felony is not sufficiently independent of the death, and, therefore, merges with it.
1. the point here is that without some limitation on felony-murder, there could never be a
manslaughter conviction, as the latter offense would always be bootstrapped into felony-murder.
2. Moore: we don’t want the “felony murder” doctrine to be used as a shortcut to get around the mens
rea elements of murder, therefore we have an independent felony doctrine that limits its
application.
3. Independent felony test: The California Supreme Ct has held that a felony does not merge if the
assaultive conduct involves an “independent felonious purpose.” Therefore, if a death results
during the commission of an armed robbery, the underlying assault does not merge with the
homicide, b/c the felonious purpose to take property is independent of the homicide.
c)
The Res Gestae Requirement: In order for the felony-murder rule to operate the homicide must occur
“within the res gestae of (things done to commit) the felony. This requirement has two components:
1. Temporal/Geographical Proximity Requirement: basically says that the res gestae period begins
when the actor has reached the point at which she could be prosecuted for an attempt to commit the
felony, and it continues at least until all the elements of the crime are completed. (therefore, if
Kenny accidentally kills Edo, and then decides to take Edo’s property, the felony has come to late,
and therefore no felony murder rule.)
2. Causation Requirement: The res gestae requirement includes more than a connection in time and
place: there must also be a causal relationship between the felony and the homicide. (but for test
between felonious nature of the conduct and death)
a. King v. Commonwealth: Pilots flying dope back to VA, crash into a mountain b/c of fog.
HELD: the felony-murder rule did not apply, b/c the crash would have resulted even if
they were transporting legal cargo. D was not flying unduly low to avoid radar detection,
or in a dangerous manner, the accident was purely the result of bad weather.
d) Killing by a Non-Felon: (i.e. what if the store owner shoots back)
1. The Agency Approach: The majority of the states hold this theory: the felony murder rule does
not apply if an adversary to the crime, rather than a felon, personally commits the homicidal act.
However, if a co-felon commits the homicidal act, it is imputed to the rest of his crew, unless the
co-felon is on a frolic and detour.
2. The Proximate Causation Approach: a few courts say that a felon is liable for any homicide that
occurs during the commission of the offense, whether the shooter is a felon or a third party, if the
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killing was the proximate result of the felonious activity. (jury question that turns on the facts of
the case)
a. limited version: some courts draw a distinction when the shooter is a non-felon based on
who in fact was killed. The rule says that felony murder does not apply to a co-felon
when another co-felon gets killed by a non-felon shooter; but it does apply when the
victim was an innocent person.
b. Reasoning for the distinction: When a non-felon kills a felon it is justified, whereas the
death of a bystandard accidentally shot by a non-felon is excusable homicide.
3.
Distinguishing Felony-Murder from Other Theories
a. Even in an agency jurisdiction, a felon may be held responsible for the death of another at
the hands of a third party, as long as the basis for the charge is not felony-murder.
b. Example: During a robbery, F1 points a gun at X, a store clerk, threatens X’s life, and
shoots the gun in the air to show X he is serious. X responds by shooting F1, but also hits
innocent V. F2 is the accomplice.
c. Held: F1 recklessly caused X to kill V, F2 may be held responsible for V’s death, since
F1’s reckless acts will be imputed to F2, her accomplice. (but F1’s death will not be
imputed to F2)
E. Voluntary Manslaughter: Provocation (“Sudden Heat of Passion”, a failure of proof defense):
The common law defense contains four elements:
1) the actor must have acted in heat of passion: “Passion’ includes any “violent, intense, high-wrought, or
enthusiastic emotions. (ie. anger, fear, jealousy, and wild depression)
2) the passion must have been the result of adequate provocation (provocation must come from victim):
a) Early Common Law Categories
1. ADEQUATE Provocation
a. an aggravated assault or battery
b. mutual combat
c. commission of a serious crime against a close friend or relative
d. illegal arrest
e. observation by a husband of his wife committing adultery
2.
INADEQUATE provocation
a. a trivial battery
b. learning about (but not observing) adultery
c. observation of the sexual unfaithfulness of a fiance or girlfriend
d. and words, no matter how insulting.
b) Modern Common Law: Many states have decided that it is better to let the jury decide (based on a
reasonable person standard) what constitutes adequate provocation, rather than adhering to a fix set of
rules. One common law rule that has persisted in most jurisdiction, though, is that words alone do not
constitute adequate provocation.
c) Who is this reasonable person: as in other areas of criminal law, there has been a movement to individualize
the standard, i.e. to merge the defendant’s personal characteristics into the ordinary reasonable person. (i.e.
the standard of the ordinary person in the actor’s situation). (objective test w/ subjective elements tied in;
age and sex, + maybe other things)
1. case: 15 year old boy was provoked to kill a man who had sexually assaulted him, the jury was told
to use a reasonable 15 year old boy standard.
2. Case 2: man comes upon two lesbians lovemaking in a campsite, and shoots them. He claimed that
it was sudden heat of passion b/c he had been rejected by women in the past. He wants a
reasonable lesbian hater’s standard. HE DOES NOT GET IT!
3) The actor did not have a reasonable amount of time to cool off: the defense is unavailable if a reasonable person
would have cooled off in the time that elapsed between the provocation and the fatal act. This rule used to be strictly
applied by the judge, now it is more loosely applied by the jury.
4) And there must be a causal link between the provocation, the passion, and the homocide. The defense is not
available to someone who is unmotivated by the provocation. For example, if EDO decides its time to get rid of his
wife b/c he has a new chick on the side and he wants his wife’s life insurance money, he can not claim a defense of
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provocation when he finds his wife in bed with another man. Reasoning: He was not motivated by the provocation,
he already intended to kill his wife.
5) Rationale for the Defense:
a) Justification is not an official rationale, but you can see it pop up in cases from time to time, and it might be
the motivating factor running beneath the surface. Justification being the idea that the jury feels that the
victim is such a bad person that they in essence deserved what they got.
b) Excuse is the official rationale: the defendant is being compelled to do things that he normally would not
do except for the existence of emotional storms that he has no control over. (According to Moore, the
problem with this official version is who is being compelled by these emotions, ie the person is compelling
themselves) (under this rationale almost any emotion could be a defense—Moore says this is a very
problematic rationale)
F. Involuntary Manslaughter:
Criminal Negligence: an unintentional killing that is the result of “an act, lawful in itself, but done in an unlawful manner, and
done without due caution or circumspection.”
1) Invol Manslaughter v. Depraved Heart Murder: One who is aware that she is taking a substantial and unjustifiable
risk to human life, but proceeds anyway, manifests the indifference to the value of human life that constitutes malice
aforethought; one would should be aware of the risk, but is not, is negligent.
G. Manslaughter: Unlawful-Act (Misdemeanor-Manslaughter) Doctrine:
An accidental homicide that occurs during the commission of an unlawful act not amounting to a felony constitutes involuntary
manslaughter.
H. Criminal Homicide: Model Penal Code:
a person is guilty of criminal homicide under the MPC if she unjustifiably and inexcusably takes the life of another human being
purposely, knowingly, recklessly, or negligently. (no year and a day rule) The code recognizes three forms of criminal homicide:
1) Murder
a) a criminal homicide constitutes murder when the actor unjustifiably, inexcusably, and in the absence of
mitigating circumstances, kills another: (1) purposely or knowingly; or (2) recklessly, under circumstances
manifesting extreme indifference to the value of human life. (i.e. Intent murder + Depraved Heart murder)
b) No degrees under MPC
c) GBI Murder Disappears: any case involving this state of mind would constitute extreme recklessness (i.e.
murder) or a lesser form of unintentional homicide (i.e. reckless manslaughter or negligent homicide).
d) FELONY MURDER: The Code provides that extreme recklessness (and, thus murder) is presumed if the
homicide occurs while the actor is engaged in, or is an accomplice in, the commission, attempted
commission, or flight from one of the dangerous felonies specified in the statute. (this is a rebuttably
presumption though, i.e. the jury does not have to infer extreme recklessness from the commission of the
crime.
2) Manslaughter: a person in guilty of manslaughter if she (1) recklessly kills another; or (2) kills another person under
circumstances that would ordinarily constitute murder, but which homicide is committed as the result of “extreme
mental or emotional disturbance for which there is a “reasonable explanation or excuse”. (no misdemeanormanslaughter rule)
a) Reckless Homicide:
1. murder v. manslaughter under the code: the difference between the two offenses is that in the case
of murder, the recklessness must manifest extreme indifference to the value of human life. This
feature is not included in the definition of manslaughter.
2. Reckless manslaughter is a necessarily-included lesser offense of reckless murder, i.e. jury always
has chance to go with manslaughter.
3. Liability for manslaughter under the code can not be based on criminal negligence. (i.e. the
drafters felt that manslaughter was to harsh a crime for someone who was lacking subjective fault).
b) Extreme Mental or Emotional Disturbance:
1. In General: a person who would be guilty of murder is guilty of the lesser offense of manslaughter
if she killed the victim while suffering from an extreme mental or emotional disturbance (EMED)
for which there is “reasonable explanation or excuse”.
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2.
3.
4.
c)
Burden of Proof: the MPC provides that the defendant has the burden of producing evidence
regarding this affirmative defense, after which the prosecution must disprove the defense beyond a
reasonable doubt. (however, most states that have adopted this provision have said the defendant
must prove the affirmative defense by a preponderance of the evidence)
EMED Conceptually: is intended to include two common law doctrines: (1) heat of passion (But in
an expanded form); and partial responsibility (diminished capacity).
Subjective and Objective Test: subjective as to the EMED, but there must be a reasonable
explanation or excuse for the EMED, which is the objective portion of the test. (even this objective
standard is partially subjective b/c the reasonableness of the explanation is considered form the
viewpoint of a person “in the actor’s situation under the circumstances as she believes them to be.
a. The Actor’s situation: is intended to incorporate the accused’s personal handicaps and
other relevant external characteristics; however, the “idiosyncratic moral values” of the
defendant must be excluded.
Comparison of Model Code to Common Law “heat of passion:
1. the EMED manslaughter provision is much broader
a. first, a specific provocative act is not required to trigger the EMED defense. All that must
be proven is that the homicide occurred as a result of an EMED for which there is a
reasonable explanation or excuse.
b. Second, even if there is provocation, it need not involve “an injury, affront, or other
provocative act perpetrated upon (the defendant) by the decedent.
c. No fixed set of provocations: a jury instruction on manslaughter is warranted even if the
basis of the EMED was:
1- v derided d b/c he was unable to have an erection after he was unable to have
intercourse with her
2- v took D’s reserved parking space in an apartment building
d. No rigid cooling off rule.
3) Negligent Homicide: this is an involuntary manslaughter at common law.
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NECESSITY
A. Basic Nature of Defense
1.
2.
3.
A.K.A. “lesser evils” or “choice of evils” defense= the person must choose between violating a minor offense on one
hand or suffering (or allowing others to suffer) substantial harm to person or property on the other hand. Ex. Allowed to
drive to hospital with suspended license to get a loved on there in emergency.
Necessity is a residual justification defense- a defense of last resort.
Serves as a supplement to legislative judgement.
B. General Rules
1.
Part of common law tradition in U.S. Justified in violating criminal law if”
i.
Must be faced with clear and imminent danger. Ex. Where a convicted felon was threatened with a gun so he
picked one up himself and ran down street with it. He was convicted of possessing a handgun as a felon. Since
danger was clear and imminent, jury can be instructed as to necessity.
ii.
Defendant must expect, as a reasonable person, that his actions will be effective in abating the danger that he
seeks to avoid. Ex. An inmate who escapes jail because of fire—ok.
iii.
Defendant may not claim necessity of there is a legal alternative.
Nelson v. State- D drove 4x4 off road and it got stuck in the mud, so D went to a nearby highway yard and took
some vehicles in order to get his truck out. D was convicted of driving highway trucks w/o consent and for
damaging them. No necessity because various people offered to help him.
iv.
Defense not valid unless the harm D will cause is less serious than that which he seeks to avoid.
a. Look only at what was reasonably foreseeable
b. Issue is whether D’s value judgement was in fact correct, not subjective.
v.
Lawmakers must not have anticipated the choice of evils and balanced them the other way. Ex. A person may
not defend his illegal use of pot for medical purposes if the legislature had balanced values and rejected D’s
claim.
vi.
Defendant must come to the situation with clean hands. I.E. you cannot create the situation—like recklessly
starting a fire—and then come to the rescue by burning a house down to create a fire line.
2.
Limitations on application of necessity defense.
i.
Some states limit to emergencies created by natural forces.- tresspass to get away from a tornado, but not to
escape an armed robber.
ii.
May not apply in homicide cases.
iii.
Some states may limit defense to protection of persons and property. (Cannot protect reputation)
C. Civil Disobedience
1.
A nonviolent act publicly performed and deliberately unlawful, that has as its purpose to protest a law, govt. policy or
action of a private body that have serious public consequences.
i.
Direct- protesting a particular law by breaking it. Ex. Rosa Parks.
ii.
Indirect- protesting a law, but breaking another. Ex. Trasspassing at an abortion clinic. Very unlikely to get
necessity defense here- have other options, not directly in danger.
a. advocates of ‘political necessity’ defense say that defense should be recognized because it
empowers the individual by allowing minorities to have views heard. Also gives jury a way to
‘nullify’ the law.
b. Opponents of defense say that civil disobedience is ok, but people must be prepared to pay the
price—Gandhi and Martin Luther King went to jail.
D. Necessity as a defense to homicide
1.
2.
Issue- May a person justifiably kill an innocent person in order to save a greater number of innocent lives?
Regina v. Dudley and Stevens- Three men and a 17yr. old cabin boy were on a life boat after their yacht sunk. The boy
was sick, and they had no food, so D and S killed him in order to survive.
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3.
4.
HELD- D and S found guilty. Preserving life is a duty, but it is a higher duty to sacrifice it. You may not take the life of
another to save yourself. In this case, the men were not certainly going to die, but killed the boy anyway. Thus is seems
that they did not choose the lesser of two evils.
Mountainclimbers Hypo- Edo and Mark are mountaineers tied together by a rope, Mark looses his footing and falls off
cliff, and will pull Edo down. Edo holds on for a few seconds, but feels himself about to be pulled over the cliff. He may
cut the rope. Unlike the above case, there is an imminent threat. Also, Mark is an ‘aggressor’, unlike the boy above, and
by slipping, he threatened Edo’s life. Here, Edo was allowing nature to take its course. In the above case, the boy was
not certain to die, so they were not allowing nature to take its course.
Rationalesi.
Utilitarian- End justifies the means. Saving three lives justifies killing one.
ii.
Retributivist- An innocent person’s life may never be taken. However, Dudley and Stevens could be excused on
the ground that, given the extraordinary circumstances, they were compelled or coerced to take a life.
iii.
Model Penal Code- ‘Choice of Evils” defense. Judge and jury make determinations. Conduct is justified if:
a. he believes that his conduct is necessary to avoid harm to himself or another.
b. The harm to be avoided by his conduct is greater than that sought to be avoided by the law prohibiting his
conduct.
c. No legislative intent to exclude the conduct in such circumstances plainly exists.
-Broader than Common Law:
a. Code rejects the CL imminency requirement.
b. A person does not automatically lose the defense because he was at fault in creating the necessitous
situation. Defense is not available if the actor is prosecuted for a crime of recklessness or negligence and he
acted with that level of culpability in bringing about the emergency or in evaluating the necessity of his
conduct.
c. Code provision is one of general applicability. All forms of necessity qualify: defense is not limited to
emergencies created by natural forces, is not limited to physical harm to persons or property, and may be
employed in homicide prosecutions-- sanctity of human life is promoted by a law that permits an actor to
kill to save a larger number of lives.
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DURESS
I. General Principles
A.
Overview
1. Common law defense to criminal conduct
B. Elements of the Defense
1. Generally speaking, a person will be acquitted of any offense except murder if the criminal act was committed
under the following circumstances:
a) Another person threatened to kill or grievously injure the actor or a 3 rd party, particularly a near relative,
unless she committed the offense
b) The actor reasonably believed that the threat was genuine
c) The threat was “present, imminent, and impending” at the time of the criminal act
d) There was no reasonable escape from the threat except through compliance with the demands of the coercer
e) The actor was not at fault in exposing herself to the threat
2. The threat must emanate from a human being
3. The coercer must threaten to cause death or serious bodily harm (“deadly force”)
4. The deadly force threatened must be imminent
a) State v. Rosillo – police officer falsely testified at trial because of belief that he would be harmed by villains
– no duress defense
5. There is some question as to whether a person may claim the common law defense if the threat is directed at a
person unrelated to the actor
a) Threat at a family member is sufficient
1. Duress: Justification or Excuse
1. Some scholars treat duress as a subspecies of the justification defense of necessity
a) This is superficial: in justification, the coerced commits the lesser of two evils – this isn’t always the case in
duress
b) Thus, most scholars treat duress as an excuse defense
II.
Rationale of the Defense (as an Excuse)
A. Utilitarian Arguments
1. When a person is “in thrall to some [coercive] power,” the threat of criminal punishment is ineffective
2. Some utilitarians against the defese: Sir James Stephen states that recognition of the defense dangerously
undermines the moral clarity of the criminal law and invites fraud
B. Retributive Arguments
1. A coerced actor does not deserve to be punished for her actions
2. Some misleading explanations commonly given:
a) A coerced actor lacks the requisite mens rea to be convicted of an offense
b) A coerced party should be excused because “commission of the aleged offense was no longer the voluntary
act of the accused”
c) It is not correct to say that a person is excused for violating the law because she “lacked free will” – the
coerced actor has a capacity to choose
1) Nevertheless, the coerced actor does not possess a fair opportunity to exercise her will to act lawfully
3. As long as an actor’s conduct demonstrates ordinary and expectable human frailty, society is prepared to excuse
a coerced actor’s unlawful conduct
III.
Distinguishing Duress from Necessity
A. Necessity applies “when a person is faced with a choice of two evils and must then decide whether to commit a crime
or an alternative act that constitutes a greater evil,” and the person makes the right choice
B. Duress applies when the coercing actor’s threats overwhelm the actor’s will so that she makes the wrong choice (i.e.
perpetrates an equal or greater evil)
IV.
Duress as a Defense to Homicide
A. General Rule
1. Most states – duress is not a defense to an intentional killing
2. Some states recognize duress and reduce the offense to manslaughter
3. Debate as to application in felony murder
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a)
Some states provide that a person coerced to commit a felony, during which she or an accomplice
unintentionally kills the victim, may raise the duress defense
1) Reasoning: since duress ordinarily is a defense to an underlying felony, it should also apply if someone
unforeseeably dies during the commission of a crime
b) Other states disallow the defense in all murder prosecutions, regardless of a defendant’s mens rea regarding
the death
B. Is the No-Defense Rule Sensible?
1. Utilitarian: the traditional justification, i.e. that a threat of future punishment will not deter an actor confronted
by an immediate deadly threat, applies as much to coerced murderers as to coerced thefts
a) Other utilitarians claim that “the drive of self-preservation is irresistible, that conduct in such situation is
inexorably fixed for all human beings” is wrong
2. Retributivist: Question should come down to “whether a coerced person who unjustifiably violates the moral
principle [against taking an innocent life] necessarily, unalterably, and unfailingly deserves to be punished as a
murder, as the common law insists
a) Answer should be no.
C. The Rule is Questioned and Reaffirmed: the Lynch-Howe Saga
1. Lynch was coerced into driving a car to an intentional killing, and was allows to raise duress when being
prosecuted for 2nd degree murder
a) House of Lords here created an arbitrary distinction – there is nothing to say that perpetrators and
accessories are different
2. Regina v. Howe overruled this – D strangled a man under a threat that he would otherwise be killed himself, and
was not allowed to raise the defense
V.
Escape from Intolerable Prison Conditions
A. The Issue
1. Escapees from prison sometimes defend their conduct on the ground that they fled due to intolerable prison
conditions
B. The Law
1. Few courts have recognized this as a defense, as they believe it will encourage all to attempt to escape
2. Most modern courts recognize the right to assert an intolerable-prison-condition claim, but are split on whether
the inmate should raise the defense of necessity or duress
3. Still, courts place special restrictions on its use
a) i.e. escapees must make a “bona fide effort to surrender or return to custody as soon as the claimed duress or
necessity has lost its coercive force”
C. Necessity versus Duress
1. The Conceptual Problem
a) Neither covers all intolerable-prison-condition cases
2. Why the Nature of the Defense is Significant
a) The Message of Acquittal
1) The two defenses send different messages
2) Acquittal on the basis of necessity implies that it is right or, at least, tolerable, for a prisoner to escape
confinement in specified circumstances
3) Acquittal on the ground of duress implies only that the escapee should not be blamed for fleeing
b) Ability to Obtain Acquittal
1) Necessity: prisoner must convince the jury that her flight from confinement was a lesser evil than what
was facing her behind bars
2) Duress: the determinative factor out to be whether the conditions in the prison that motivated the flight
were so extreme and imminent that the jurors would reasonably imagine themselves fleeing under
similar circumstances
c) Liability of Those Who Assist in the Escape
1) United States v. Lopez – man flew a helicopter into prison to save his girlfriend who was being sexually
threatened by the guards
i.
Under necessity, man was also justified in aiding girlfriend
ii.
Under duress, the actor is not held responsible for it because she is the victim of an excusing
condition – prosecution could still show that the man aided and abetted a wrongful act
d) Liability of Those Who Resist the Escape
1) If an inmate is escaping for duress, a guard is justified in using force to stop her
2) Under necessity, this line becomes murky
3. Concluding Comments
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a)
VI.
No reason why a jurisdiction should fit all prison-escape cases within just one defense category
1) People v. Unger- escapee properly raised necessity
2) Should also be able to raise duress – lesser of two evils
Situational Duress: Brief Observations
A. The Simplest Case: Necessity as an Excuse
1. i.e. Dudley and Stephens, even if the defendants were not justified in killing the youth, they could be excused for
their behavior because of the compelling circumstances they experienced
a) Reasoning: natural circumstances can be as compelling as human threats: therefore, situational duress
should excuse precisely the same circumstances that human coercion excuses conduct
B. Going Beyond Natural Threats
1. What about brainwashing and “rotten social background” defense?
2. Reasoning: a person is excused if through no fault of their own she is placed in a situation so harsh that a person
of ordinary moral firmness in her situation would have committed the crime
3. Critique: Undermine the principle that humans possess sufficient free will to be held accountable for their
actions
VII.
Battered Women Under Duress
A. Courts ought to be willing to consider such evidence in duress cases
1. Duress is an excuse; if a battered woman may justify her actions when she kills her abuser in a non-imminent
circumstances, her experiences with the batterer are at least as significant in a duress case, in which she merely
seeks to excuse her actions
2. When a battered woman asserts duress, her learned helplessness buttresses her duress claim
VIII.
Model Penal Code
A. General Rule
1. Duress is an affirmative defense to unlawful conduct by the defendant if
a) she was compelled to commit the offense by the use, or threatened use, of unlawful force by the coercer
upon her or another person; and
b) a person of reasonable firmness in her situation would have been unable to resist the coercion
2. Not available to a person who recklessly places herself in a situation which it was probably that she would be
subjected to coercion
B. Comparison to the Common Law
1. In General
a) Broader in various aspects
1) abandons the CL requirements of deadly force and imminency
2) it is a defense of general applicability – can be used in murder
b) Similar in various aspects
1) limited to threats or use of “unlawful” force – therefore, it does not apply to coercion emanating from
natural sources
2) does not recognize the defense when any interest other than bodily integrity is threatened
2. Escape from Intolerable Prison Conditions
a) also applies if the coercer’s act of unlawful force causes the coerced party to perform a different criminal act
3. “Situational Duress”
a) fall outside the scope of the defense
b) but brainwashing might be available
1) victim could claim coercion on the ground that the prior force rendered her subconsciously fearful of
more force if she did not accede to the suggestion that she commit a crime
4. Battered Women and the Nature of the “Person of Reasonable Firmness”
a) No imminency requirement – she may defend herself on the basis of an earlier threat by the abuser
b) A woman who has suffered prior abuse may be able to excuse her conduct when she commits a crime at the
suggestion of her abusive partner
c) Measured by the objective standard of the “person of reasonable firmness” in the defendant’s situation
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INTOXICATION
I. Overview
A.
B.
Defined= a disturbance of mental or physical capacities resulting from the introduction of any substance into the body.
In social and historical context

Distorts judgement and reduces ability to control aggressive feelings.

Often have to commit crime to support habit

Rarely serves as basis for acquittal in criminal prosecutions.
C. Issues
1. Voluntary vs. Involuntary
2. Affect on culpability-- Lack of mens rea vs. unconscious vs. temporary insanity.
3. What type of offense is D charged with? Specific, general intent, strict liability.
D. Intoxication Relation to other defenses
1. Temporary and traditional insanity may be used if alcohol has that effect.
2. Sometimes diminished capacity and intoxication will be functionally the same, except that diminished capacity refers to
mental illness.
3. Intoxication and mistake of fact overlap- ex. Regina v. Cogan and Leak, P convinced K, who was intoxicated, that E, P’s
wife wanted to have sex with K. K claimed mistake of fact regarding E’s lack of consent. Because K was drunk, he
claims “intoxicated mistake”. Guilt here depends on jurisdiction.
II. Voluntary Intoxication
A. Defined
1. In general, intoxication is voluntary if the actor is culpable becoming intoxicated. Knowingly ingesting a substance that
he knows or should know can cause him to become intoxicated, unless it was prescribed or he was coerced to take it. For
EX- A man smoking pot laced with other stuff cannot claim that he is excused since he voluntarily took an unlawful drug.
2. An irresistible compulsion to take drugs or drink is still voluntary. Law treats the alcoholic’s first drink of the day, and
the addict’s first use of narcotics on a particular occasion, no different than actions of ordinary drinker and casual user
of drugs
B. General Rules
1. Voluntary intoxication is no excuse, unless user is unconscious or insane.
2. Voluntary intoxication exculpates:
i.
When user did not harbor the specific state of mind provided for in definition of offense. Is this the
actor saying he lacked the requisite MR?
ii.
User suffered from long-term intoxication-induced ‘fixed’ insanity
C. Mens Rea
1. Not a defense, but a failure of proof.
2. In common law- Rift between general and specific intent (like with mistake of fact).
i.
General intent- voluntary intoxication is no defense. Self induced intoxication is reckless conduct, and
thus a person knows better, but jeopardizes the safety of others anyway.
ii.
Specific Intent- Voluntary intoxication is a defense to specific-intent crimes—if at the time of offense
person was incapable of forming or did not form the specific intent required in the definition of the
offense.
iii.
Criticism
a. Too narrow- Guilt should not depend on whether court chooses to characterize element of crime
charged as separate from element of general intent. Either D did or did not form have state of
mind…simple as that.
b. Abolish defense- Intoxicated should never be let off. Aim of law is to protect innocent parties
from sick as well as bad, but unlike insane, who go to a hospital, the drunk go right back to the bar.
(This is wrong because just because D was drunk, it does not mean that he possessed the necessary
state of mind. Legislatures include a further state of mind because it deems this person to be more
deserving of punishment. Also due process clause might not allow this critique, since D must be
allowed to raise reasonable doubt as to mens rea)
3. Intoxication and homicidei.
Some states only recognize defense of voluntary intoxication in murder; others give it special attention
when there is a murder case.
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ii.
Gets you down from murder 1 to murder 2 if you can show that you were not able to premeditate and
deliberate.
iii.
In felony-murder—if felony underlying murder is specific intent, you can raise issue of not being able
to form felonious intent because of intoxication.
D. Voluntary Act/ Unconscious
1. Need a willed, conscious, muscular contraction. See Actus Reus.
2. However, even the unconscious person can be held liable because he chose to ingest the intoxicants in the first place.
3. Unconsciousness can go to show that you did not commit the criminal act. (this would be kinda tough to prove). It can
also serve to show that you lacked requisite mens rea.
E.
Insanity
3.
1. Temporary insanity- if person is show drunk that he is actually insane, he could raise excuse of
insanity (see insanity below). BUT there is no temporary insanity defense. —Victim of “artificial
contracted madness”
Fixed insanity- habitual use may result in permanent state of insanity that remains when actor is not under the influence of
intoxicants. (See Kenny). Here, you can use the insanity defense, even if you were drunk when crime was committed.
i.
Dressler backs up the temporary/ long term distinction by claiming that at some point a person’s earlier
voluntary decisions become morally remote.
III. Involuntary Intoxication
1.
2.
Defined= Innocent if the actor is not to blame for becoming intoxicated.
i.
Four Circumstances:
a. Coerced intoxication
b. Intoxication by innocent mistake- told that cocaine is breath freshener.
c. Unexpected intoxication from a prescribed medication (as long as you don’t take more the
prescribe amount.
d. Pathological intoxication- temporary psychotic reaction triggered by consumption of alcohol by
person with pre-disposing condition. Only applied when person had no reason to know he was
susceptible. (This is like getting stung by a bee for the first time—don’t know if allergic)
Rule= A person who is involuntarily intoxicated is entitled to acquittal in all of the circumstances in which voluntary
intoxication is a defense, as well as all general intent offenses. Also excused if temporarily insane.
IV. Model Penile Code
1.
-
Rule=
i.
Three types:
a. self induced
b. pathological
c. involuntary (not self induced)
ii.
Intoxication exculpates:
Defense to crime if it negates an element of the offense.
Pathological and involuntary are affirmative defenses, if the intoxication caused the actor to suffer from a
mental condition comparable to that which constitutes insanity under the code.
Negation of element of offense
i.
Mental State
a. In General- Code does NOT distinguish between general intent and specific intent. So if you lack state
of mind required in respect to an element of the crime, you are not guilty. So…unlike in common law, you
can get off for rape (too easy)
b. Exception to rule- Crimes defined in terms of recklessness. ( usually means ‘conscious disregard of
substantial and unjustifiable risk that the material element of offense exist or will result from his conduct,
BUT here it means that as a result of intoxication, person was not conscious of a risk which he would have
been ware had he not been drunk.)
ii.
Voluntary Act
a. Person is not guilty of an offense unless conduct includes a voluntary act (or an omission, in limited
circumstances). Unconscious may raise an involuntariness claim, although the requisite voluntary act may
sometimes be found in conduct prior to that unconsciousness.
Intoxication as affirmative defense (can also claim insanity separately)
a.
b.
2.
3.
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i.
ii.
If actor suffered from pathological intoxication (does lying count?) that was not self induced; AND.
Actor’s conditions qualified under test of insanity (in MPC).
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INSANITY
A. Overview
1.
2.
3.
4.
5.
Rarely raised, but offered in heinous and well-publicized cases.
Lawyers and Psychiatrists often don’t see eye to eye on this issue.
courts may impose a psyco evaluation
Jury Verdicts (in order of when they should be considered)
i. Not guilty
ii. Not guilty by reason of insanity= all elements of crime proven beyond reasonable doubt but that accused was insane
iii. Guilty
Burden of proof- D has initial burden- most states require proof by clear and convincing evidence (rather than by
preponderance). Before Hinckley got off on attempted murder of Regan, prosecutor had to prove D was sane beyond a
reasonable doubt. Now, most states require that D have the burden of persuasion.
B. Rationale of insanity defense
1.
2.
Utilitarian- A person who does not know what she is doing or who cannot control her conduct cannot be deterred by
threat of criminal sanction. Incapacitation is socially desirable, but this is accomplished by throwing insane in the loony
bin. This furthers the rehabilitation of the insane in a way that prison would not.
Retributivei.
Free will- people can and do choose to do good or evil (an evil petting zoo?) Thus the insane person, who
cannot choose to do good or evil, cannot be blamed. This would be like blaming a sick person for sneezing.
C. Definitions of Insanity
1843
1900
1954
1962
1988
____________________________________________________________________________________
M’Naghten
1.
2.
Irresistible Impulse
Durham
ALI (MPC)
Federal Statute
Mental Disease or defect- this is a legal, not a medical term. It is not defined by courts, and open to medical input.
M’Naghten Testi.
TEST- insane if at the time of act person was laboring under defect of reason arising from act that person:
a. did not know the nature and quality of the act that she was doing.; OR
b. If she did not know it, she did not know that what she was doing was wrong- i.e. the accused did not
know the difference between right and wrong.
ii.
Focus is on cognitive disability
iii.
Term ‘know’ can be defined narrowly or broadly.
a. Narrowly- “formal cognitive knowledge”-- person is sane if she can describe what she was doing.
b. Broadly- “affected knowledge”- absent unless D can evaluate conduct in terms of its impact on others
and appreciate the total setting in which D acts.
iv.
“Nature and quality of act can be very narrow- for ex. A person that squeezes B’s neck who thinks that it is
a lemon does not know the nature and quality of act. However, if A knows that she is squeezing a human
neck, but does not appreciate that she is causing pain, she may be sane insofar as the first prong of
M’Naghten is concerned (where narrow “know” is applied- see above).
v.
“Wrong” in right and wrong prong- Legal or moral? England says legal, but America is divided. (we read
People v. Serravo, which says moral wrong). For places that apply “moral right and wrong”, you don’ t
look at D’s subjective belief, but look to whether D violated societal standards of morality.
vi.
Deific Decree (that’s when you declare that you’ve just soiled yourself)- A person who, as a result of a
mental disorder, believes that she is acting under the direct command of God, is deemed legally insane
(a.k.a. Peale and Edo are sane).
vii.
CRITICISMS
a. Grossly unrealistic- Does not recognize degrees of incapacity. Psychiatrists shape testimony to fit
definition of insanity, but few of them believe that incapacity is ever complete.
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b.
3.
Tight shackles on expert testimony- - cannot testify on info that falls outside of scope of test, so jurors
can often not get background.
c. Test is outdated- disregards mental illness that affects volition.. Disregards that some people may be
able to distinguish good from evil, and yet be unable to control behavior
d. If a person cannot control conduct, she is undeterrable (women when around Edo). Therefore
punishment is not effective.
Irresistible Impulse Test
i.
Rule (volitional add-on to above test). Insane if:
a. D acted from an irresistible and uncontrollable impulse.
b. Lost power to choose between right and wrong and to avoid doing the act in question, as that free
agency was destroyed.
c. Will has been destroyed that actions are beyond her control
ii.
CRITICISMS
a. Some of the same arguments as above (naïve in requiring total incapacity and for excluding nonimpulsive actions [inner conflict]) However, these argument are not really valid because courts do not
require proof of total incapacity and do not exclude evidence that D planned behavior.
b. Most psychiatrists do not believe that they know where to draw line between irresistible and resistible
impulses.
4.
American Law Institute (MPC) Test
(NOTE: This is basically a reformulation of volitional prong of irresistible impulse test and cognitive prong of
M’Naghten)
i.
Rule: Insane if at time of conduct, as a result of mental defect, D lacked capacity to:
a. Appreciate the criminality (or wrongfullness, if legislature specifies)
b. Conform conduct to requirements of the law.
ii.
Differences with other tests
a. uses ‘appreciate’ rather that ‘know’ in order to avoid a narrow interpretation of M’Naghten cognitive
prong.
b. Test avoids ‘impulse’
c. Both prongs are modified by ‘lacks substantial capacity”
iii. See criticisms of two tests above.
5.
Product (Durham) Test
i.
Rule: excused if unlawful act was the product of mental disease or defect. Causal link between disease and
mental defect is the key.
ii.
CRITICISMS
a. ‘ Mental disease or defect’ is never defined. This left the matter in the hands of psychologists and the
like. (Test was abandoned when a psychiatrist ‘flip-flopped’)
b. Allows psychiatrists to usurp jury’s authority- Nothing for jury to do than decide which experts to
believe.
c. Excluded from criminal responsibility deterrable and morally blameworthy actors. Ex. If D suffers from
a delusion that C, V’s husband, will marry her if V is dead. D kills V. D is insane, but for her delusion,
she wouldn’t have killed V.
-But D’s acquittal cannot be defended on utilitarian grounds- D was deterrable.
-On retributive grounds, D is to blame because there was a free choice- she appreciated the
illegality or immorality of her conduct.
Federal Test
i.
definition- Person is excused if she proves by a clear and convincing standard that, at the time of the
offense, as the result of a severe mental disease or defect, she was unable to appreciate:
a. the nature and quality of her conduct
b. The wrongfulness of her conduct
ii.
Cognitive capacity (like in M’Naghten) must be total
iii.
Uses the word ‘appreciate’ rather than ‘know’ and makes it broader than M’Naghten.
6.
E. Effect of an Insanity Acquittal
1.
2.
Generally- people found not guilty by reason of insanity are rarely released upon acquittal. In practice, an insane
person may stay in a hospital for a longer period of time than she would have served in prison.
Commitment Procedures-
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i.
ii.
Automatic Commitment- in many states, a person found NGRI is automatically committed, and not
provided hearings to determine whether she continues to suffer from mental illness or to determine
whether her institutionalization is necessary for her protection or for that of society. Thus they have
less procedural rights than those that are granted to people subject to civil commitment.
Discretionary Commitment- Other states give judge the option of committing person. After
commitment, person must prove that they are entitled to release—for serious crimes (bodily injury,
serious damage to property), person must prove by clear and convincing standard; otherwise, by
preponderance.
F. Abolition of the Insanity Defense
1.
2.
Abolitionist arguments:
i.
Abuse- Defense is frequently asserted and too often successful. (No empirical evidence for this claim.
It seems to be rarely invoked, and unsuccessful).
ii.
Counter-deterrence- May have a socially negative impact on those who are not mentally ill and on those
whose illnesses are not severe enough to qualify for acquittal. Awareness by such people that the law
recognizes an insanity defense may reduce the deterrent effect of the criminal sanction. (But solution
may be to just educate those people and explain that people don’t really get off).
iii.
Conflict of perspectives- Criminal law and psychiatry don’t mix. While lawyers say that humans
possess free will, psychiatrists claim that all behavior results from causes that are beyond human
control. Psychiatrists do not believe that the sick and wicked are equally free of blame (like lawyers
do), but view them as being the same. (but criminal law does not claim that all people have free will—
it states that some people lack basic attributes of personhood- not morally accountable for their actions).
iv.
Mental illness as a myth- Just describe abnormal behavior—before 1973, homosexuality was a disease.
v.
Equity- Until society recognizes an excuse for the grossly deprived (as a result of social environment,
etc), and for others who can prove non-psychosis-based causes for their criminal behavior, inane people
should also be punished.
Legislative Efforts to Abolish the Defense
i.
Mens rea approach- Three states (after the Hinckly case) abolished the defense, but still allow a D to
introduce evidence of her mental state required in the definition of the crime. Supreme Court held that
the mens rea approach does not violate the due process clause, as long as prosecution is required to
prove beyond a reasonable doubt that the defendant had the requisite mental state.
ii.
Sentencing approach- Could only introduce evidence after conviction, during sentencing phase of trial.
(State courts have declared this unconstitutional – violates the due process clause to lessen the
prosecuter’s burden by denying the defendant the opportunity to introduce evidence that might raise a
reasonable doubt regarding her mens rea at the time of the offense.
G. Guilty but mentally ill
1.
2.
3.
4.
5.
In most states that have adopted it, it is another choice for jury to make- 4 instead of 3 options.
GBMI if guilty of offense, sane at time of crime, but mentally ill (as defined by statute)
Receive the same sentence, but after sentencing, person may get psychiatric care in prison or mental institution.
Benefits
i.
Inappropriate insantity finding will be reduced.
ii.
Treatment of mentally ill, but sane, offenders is provided
iii.
Public receives greater protection from mentally disordered and dangerous offenders.
Critics
i.
Jury may not understand the difference between mental illness and insanity.
ii.
Unnecessary- any person convicted of crime can be given psycho care anyway.
iii.
Persons found GBMI are not guaranteed treatment.
iv.
Juries may return GBMI verdicts when NGRI should be reached.
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ATTEMPT
I.Chapter overview
A. When a person commits a crime, it is the result of a 6-stage process
1. Actor conceives the idea of committing a crime
2. Evaluates the ides
3. Fully forms the intention to go forward
4. Prepares to commit the crime
5. Commences commission of the offense
6. Completes her actions
B. Anglo-American law does not punish a person during stages 1-3
C. Activity in the middles ranges is described as “inchoate” or incomplete conduct
1. Anglo-American law recognizes various inchoate offenses, most notably attempt, solicitation and conspiracy
a) Most of the controversial features of attempt law relates to incomplete attempts
II. General Principles
A. Historical Background
1. not recognized until 1784
B. Definition of “Attempt”
1. A criminal attempt occurs when a person, with the intent to commit an offense, performs any act that constitutes
a substantial step toward the commission of that offense
a. “substantial step” is conduct that has passed the stage of preparation, and has moved to the point of
perpetration
2. CL – attempt is a specific-intent crime
C. Punishment of Attempts
1. graded as a felony, but typically treated as a lesser offense than the substantive crime
D. Relationship of an Attempt to the Target Offense
1. Most jurisdictions provide that a failed attempt to commit the target offense is not an essential element of a
criminal attempt
2. If a person commits the offense, cannot be also prosecuted for attempt
E. “Assault”: “Attempt” in Different Clothing
1. “Assault” versus “Attempt”
a) the law pertaining to criminal attempts does not apply to assaults
b) for a criminal assault to occur, a greater degree of proximity to completion of the offense is required than in
the case of non-assault attempts
2. Attempted Assault
1) Courts split on recognition
F. Inchoate Crimes in Disguise
1. Serve the purpose of allowing preventive law enforcement before an act occurs, and a charging of an attempted
act
III. “Subjectivism” and “Objectivism”
A. Some aspects of the CL, and the criminal attempt provisions of the MPC are based on the subjectivist views of
inchoate liability
B. Subjectivists: An act, no matter how innocuous, that verifies the actor’s commitment to carry out a criminal plan, or
which corroborates her confession or other incriminating evidence, is sufficient to justify punishment for an inchoate
crime
C. Objectivists: Conduct should not be punished unless its criminality is “objectively discernible at the time that it
occurs – i.e. the acts performed, disregarding mens rea, mark her conduct as criminal in nature”
IV. Punishing Attempts: Why, and How Much?
A. Rationale for Punishing Attempts
1. Utilitarian Analysis
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a)
A person may assume that if she is successful in her conduct, she will avoid detection, so she will be willing
to risk the penalty for the targeted crime
b) Applying subjectivist theories, anyone who attempts to commit a crime is dangerous
c) Inchoate offenses provide a basis for official police intervention in order to prevent the consummation of an
offense
2. Retributive Analysis
a) A person who shoots but misses is as morally culpable as one who succeeds
b) Attempts disturb the public order, and punishment attempts to rectify
B. Less or Equal Punishment?
1. Utilitarian Analysis
a) Mitigated punishment provides “an encouragement to repentance and remorse”
b) i.e. encourages the actor to desist before completing the attempt
2. Retributive Analysis
a) Subjective retributivists: a failed attempt should be punished as severely
1) luck should not have a role in determining punishment
b) Objectivist-retributivist: should be punished differently
1) it is the harm that an actor culpably causes that generates the debt that she must symbolically repay
through her punishment
V. Mens Rea of Criminal Attempts
A. General Rule
1. A criminal attempt involves two intents:
a) the actor must intentionally commit the acts that constitute the actus reus of an attempt
b) she must perform these acts with the specific intention of committing the substantive crime
2. An attempt is a specific-intent offense, even if the substantive crime is a general-intent offense
B. “Result” Crimes
1. In General
a) A person is not guilty of an attempt unless her actions in furtherance of the prohibited result are committed
with the specific purpose of causing the result
b) Sometimes, a higher level of culpability is necessary to prove attempt than it is to prove the actual crime
being committed.
2. Rationale of Intent Requirement
a) Question: Should the law permit a person to be convicted of an attempt if she acts with the same level of
culpability as to the prohibited result as would be sufficient to convict her for the completed offense?
b) Rationale: the danger is that after the failed attempt or involuntary desistance, the actor is likely to try again
to commit the crime
3. Special Homicide Problems
a) Attempted Felony Murder
1) Nearly all states have held this is not a cognizable offense
a. Reasoning: the offense of attempted murder requires a specific intent to kill; the defendant’s intent
to commit a felony does not substitute for the former intent
b) Attempted Manslaughter
1) Recognized
C. “Conduct Crimes
1. Definition: crimes whose actus reus are defined in terms of harmful conduct rather than injurious results
2. No logical reason why a person should not be convicted of an attempt to conduct a crime, as long as she
possesses the specific intent to engage in the conduct that, if performed, constitutes the substantive offense
D. Attendant Circumstances
1. i.e. can D be convicted of attempted statutory rape when he is ignorant?
2. No – unless he believed to a substantial degree that the girl was below 18
VI. Actus Reus of Criminal Attempts
A. Policy Context
1. Some courts believe that the real question is whether acts of preparation when coupled with intent to have
reached a point at which they pose a danger to the public so as to be worthy of the law’s notice
2. If courts allow for too early police intervention, innocent persons, and those with still barely formed criminal
intentions – persons who might voluntarily draw back – may be arrested
3. Subjectivists favor an actus reus test of attempt that allows for early attachment of guilt
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4.
Objectivists the actus reus element has independent significance because adherents to this theory do not believe
that society should use its coercive power against inchoate conduct unless the actor has caused some type of
social harm
B. The Tests
1) General Observations
a) Generally fall into two categories
1. those that focus on how much remains to be done before the crime is committed
2. those that consider how much has already occurred
b) Various factors come into play
1. whether the act in question appears to be dangerously close to causing tangible harm, so that police
intervention cannot realistically be delayed
2. the seriousness of the threatened harm
3. the strength of the evidence of the actor’s mens rea
2) “Last Act” Test
a) General agreement that an attempt occurs ‘at least’ by the time of the last act, but no jurisdiction requires
that it reach this stage on all occasions
3) “Physical Proximity” Test
a) The actor’s conduct must be “proximate” to the completed crime, in that “it must approach sufficiently near
to it to stand either as the first or some subsequent step in a direct movement toward the commission of the
offense after the preparations are made
b) In essence, an attempt does not arise unless an actor has it within her power to complete the crime almost
immediately
4) “Dangerous Proximity” Test
a) When her conduct is “so near to the result that the danger of success is very great” – Holmes
b) People v. Rizzo – absent victim, so could not be convicted
5) “Indispensable Element” Test
a) Some courts will not find an attempt if the actor has not yet obtained control of an indispensable feature of
the criminal plan
6) “Probable Desistance” Test
a) 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
7) “Unequivocality” Test
a) Res Ipsa Test
b) An attempt occurs when a person’s conduct, standing alone, unambiguously manifests her criminal intent
c) People v. Miller
8) “Substantial Step” Test
a) MPC 27.09
VII. Defense: Impossibility
A. The Issue
1. i.e. can someone be convicted of raping a dead girl?
B. General Rule
1. CL – legal impossibility is a defense, factual impossibility is not
C. Factual Impossibility
1) In General
a) When a person’s intended end constitutes a crime, but she fails to consummate the offense because of an
attendant circumstance unknown to her or beyond her control
b) i.e. pickpocketing a pocket that doesn’t have a wallet
c) lawmakers unsympathetic
2) “Inherent” Factual Impossibility
a) i.e. attempting to sink a battleship with a pop-gun
D. Legal Impossibility
1) Introductory Comments
2) Pure Legal Impossibility
a) arises when the law does not proscribe the goal that the defendant sought to achieve
b) i.e. person sells “bootleg” liquor, still believing there is prohibition – not breaking any law, although she
thinks she is
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c)
Conduct that neither the legislature nor a court has identified as criminal can serve as the foundation for a
conviction, simply because the actor’s mental state was bad or vicious. (i..e. defendant’s mental state alone
is not sufficient)
3) Hybrid Legal Impossibility
a) In General
1) Exists if the actor’s goal is illegal, but commission of the offense is impossible due to a factual mistake
by her regarding the legal status of some attendant circumstance relevant to her conduct
2) I.e. offering a bribe to a juror who is not a juror
3) Ultimately, any case of hybrid legal impossibility may reasonably be characterized as factual
impossibility
b) Modern Approach: Abolition of the Defense
1) Objections:
a. many cases involve objectively innocuous conduct, or conduct that manifests criminality less
serious than the offense for which the defendant is ultimately prosecuted
b. when conduct is objectively innocent, it is more difficult to infer criminal intent than when the
conduct manifests criminality
2) Proponent argument:
a. people will not be prosecuted on the basis of admissions alone, so that the risk of punishment of a
person for wholly innocuous conduct is more theoretical than practical
IX.
Defense: Abandonment
A. To the small extent that a defense is recognized today, it applies only if the defendant voluntarily and completely
renounces her criminal purpose
B. Courts that do allow it do so on subjectivist grounds
1. it encourages desistance by the attempter
2. actor demonstrates that she has a less dangerous character
X.
Model Penal Code
A. Introductory Comments
1. Defines criminal attempt in a manner that makes amenable to the corrective process those person who have
manifested a propensity to engage in dangerous criminal activity
2. Sec. 5.01
B. Criminal Attempt: In General
1. Elements of the Offense
a) the purpose to commit the substantive offense
b) conduct constituting a “substantial step” toward the commission of the substantive offense
2. Explaining Section 5.01, Subsection (1)
a) must ask whether the case involves a complete or incomplete attempt
b) then if the case involves a complete attempt, is the target offense a result crime?
C. Mens Rea
1. In general, a person is not guilty of criminal attempt unless it was her purpose
2. 2 exceptions
a) a person is guilty of an attempt to cause a criminal result if she believes that the result will occur, even if it
were not her conscious object to cause it
b) for ‘purpose’ and ‘belief’ it is sufficient that the actor possess the degree of culpability required to commit
the substantive offense
D. Actus Reus
1. In General
a) Substantial step doctrine
1) must strongly corroborate the defendant’s criminal intent
2) certain enumerated instances which are sufficient
2. Attempt to Aid
a) A person may be convicted of a criminal attempt, although a crime was neither committed not attempted by
another, if:
1) her conduct is intended to aid another in the commission of the offense
2) such assistance would have made her an accomplice in the commission of the crime under the MPC’s
complicity statute, if the offense had been committed or attempted
E. Defenses
1. Impossibility
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a)
F.
Hybrid Legal Impossibility
1) 5.01 designed to abolish defense of hybrid legal impossibility
b) Pure Legal Impossibility
1) still a defense
2. Renunciation (Abandonment)
a) Person is not guilty of an attempt if:
1) she abandons her effort to commit the crime or prevents it from being committed
2) her conduct manifests a complete and voluntary renunciation of her criminal purpose
Grading of Criminal Attempts and Other Inchoate Crimes
1. In General
a) Attempt, solicitation and conspiracy are offenses of the same grade
b) Only exceptions are for “felonies of the 1st degree”
1) these crimes carry a maximum penalty of life imprisonment
2) the attempt becomes a felony in the 2nd degree – 10- year max
2. Special Mitigation
a) Trial judge can use discretion if the actor’s conduct was so inherently unlikely to result in a crime that
neither she nor her conduct represents a danger to society justifying her conviction and punishment at
ordinary levels
COMPLICITY
I.
Overview
A. Two theories of complicity
1) Accomplice liability- Person may be held accountable for the conduct of another if he assists the other in
committing an offense.
2) Conspiracy- All that is necessary is that a conspiracy exists. No assistance is necessary.
B. Two parties to offenses.
1) Primary Party- person who personally commits the physical acts that constitute an offense.
2) Secondary Party- Person who assists primary party in the commission of an offense.
II.
Accomplice Liability- General Principles
A. General Rule
1) Accomplice=Secondary party (“S”) is an accomplice of primary party (“P”) if he intentionally assists P to
engage in the conduct that constitutes the crime. (Assist= encouraging, abetting, soliciting, advising and
procuring the commission of the offense)
2) Criminal responsibility of an accomplice: Derivative Liability- An accomplice is not guilty of an independent
offense, but derives liability from the primary party. Secondary party (“S”) may be convicted of any offense
committed by P with S’s influence.
a) Example: Dan fails in his effort to rob Edo (naturally), but he is guilty of attempted robbery. The
secondary party would also be guilty of attempted robbery.
B. Theoretical foundations of accomplice liability
1) Defense of Accomplice liability
a) Accomplice liability is analogous to civil agency law (remember contracts?)—by intentionally assisting the
primary party, the accomplice voluntarily identifies himself with the other. Intentional conduct is equivilent
to manifesting consent to liability under the civil law.
b) Forfeited personal identity- Accomplice authorizes P’s conduct. S is treated as a shadow of P.
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III.
Accomplice Liability: Common Law
A. Parties to a felony
1) Principal in the first degree= a person who, with the mens rea required for the commission of the offense: (One
who strangles, rapes, takes prop, etc)
a. Physically commits the acts that constitute the offense.
b. Commits the offense by use of an ‘innocent instrumentality’
a) Innocent instrumentality rule= a person is a principal in the first degree if, with the mens rea required for the
commission of the offense, he uses a non-human agent or a non-culpable human agent to commit the crime.
1. Example- Dan trains his dog to pick up Kenny’s newspaper every morning from Kenny’s yard. D is
guilty of petty larceny (and of having a dog)
2. Example- Dan falsely informs Mark that Edo’s lawnmower belongs to Dan. Dan convinces Mark to
fetch the lawnmower from Edo’s yard. Mark lacked the specific intent to steal, so he is not guilty. He
is only a non-culpable agent being manipulated by the culpable party to commit an offense. Dan is
guilty of theft.
3. Also principal in the first degree if he causes an insane person or a child to commit an offense or coerce
X to commit the crime.
4. Difficulty in applying the rule:
5. Some offenses only prohibit conduct of designated classes of persons.
a. Perjury can only be committed by one who falsely testifies as a witness in an official proceeding.
6. Non-proxyable- action cannot be committed through an agent.
a. Getting married, acting drunk and disorderly.
7. Rape can fall under both of the above- Husband cannot be convicted of raping own wife (1), and sexual
intercourse can also be a nonproxyable action. Applying innocent instrumentality rule. To convict
Peale through the innocent instrumentality rule after he urged Farrell to rape Erica would be that Peale
is guilty of raping his own wife, which is impossible, since one may not (technically) rape his own wife.
2) Principle in the second degree- Guilty of offense by reason of having intentionally assisted in the commission of
something in one’s presence, either actual or constructive.
1. Constructive presence- if one is situated in a position to assist the principal in the first degree during the
commission of the crime.
a. Lookout, getaway driver
3) Principle before the fact- Person is like above, but is not actually or constructively present when the crime is
committed.
1. Person solicits, counsels person to commit the offense.
4) Accessory after the fact- one who, with knowledge of anothers guilt, intentionally assists the felon to avoid
arrest, trial, or conviction.
1. Difference with principal in second degree- Commission of a crime continues until all of the acts
constituting the crime have ceased.
a. in bank robbery, the offense is not complete until the principal in the first degree takes stuff to a safe
place, so the getaway driver is not an accessory after the fact, since crime is still going on. He is a
principal in the second degree.
B. Principles vs. Accessories: Procedural significance.
1) General comments- Distinction developed because of death penalty for felonies in common law. Distinction
served to protect accomplices from death penalty.
2) Jurisdiction- Principle was prosecuted in the jurisdiction in which the crime was committed. Accessory had to
be tried in the jurisdiction in which accessorial acts took place.
a. Ex- Kenny murdered Earl, and Edo solicited the crime. If the the prosecuter believed that solicitation took
place in Florida and prosecuted him there, the conviction of Edo would not stand if it turned out that Edo
solicited the crime while he and Kenny were eating Cheessteaks in Philly.
3) Timing of trial of accessories- At common law, principles and accessories could be tried separately. Accomplice
could not be tried before the principle.
a. So if the principle died or fled the jurisdiction, accomplice is off.
4) Effect of the acquittal of a principal- Accessory could not be convicted of a crime unless and until the principal
were convicted.
5) Degree of guilt of the parties- In common law, an accessory could not be convicted of a more serious offense or
higher degree than principle.
a. Exception- an accessory could be convicted of a higher degree of criminal homicide than the principal.
1. If principle killed in the sudden heat of passion, if the accomplice acted with malice aforethought, then
he could be convicted of murder.
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IV.
Accomplice Liability: Assistance
A. Types of Assistance. (*an accomplice is a person who, with the requisite mens rea, assists the primary party in
committing an offense.) Three types:
1) Physical conducta. S may assist P by furnishing him with an instrumentality to commit offense- I.e. holding victim down,
driving getaway car.
2) Psychological influence- If S incites, solicits or encourages P to commit the crime.
a. Although presence at scene alone is not enough, very little else is necessary to get you for secondary
liability.
1. Example, presence plus prior agreement to assist will support encouragement.
3) Assistance vs. Omission.- If omitter has a duty to intervene (ex. Mother), but does not, then you can find
assistance.
B. Amount of assistance required
1) In general- A person is not an accomplice unless his conduct (or omission) in fact assists in the commission of
the offense. If it does assist, any aid, no matter how trivial, is enough.
a. S is not an accomplice if he is at the scene, ready to help, but he is not called upon.
b. S is not an accomplice if he performs an act to assist P, but his conduct is ineffectual.—S opens a window
for P to go through, but P goes through door.
c. But S is an accomplice if he tells P to make sure to get some bananas from the store he is going to rob.
d. But S is an accomplice if he makes P a cheessteak to eat while he plans his crime.
2) Accomplice liability and the doctrine of causation= Secondary party is accountable for the conduct of the
primary party even if his assistance was causally unneccessary to the commission of the offense.
a. Since S is an accomplice and has forfeited personal identity in the criminal transaction, it is no longer
relevant whether S’s assistance caused the harm.
b. Critique- Problem is that causation normally applies and its underlying functions apply here as well:
1. Personal rather than vicarious- person whose connection to crime is exceedingly remote can be
ensnared as an accomplice. – A person who claps during a game of illegal cockfighting can be
convicted.
2. Causation is a way to gauge the appropriate level of punishment—but accomplice law can result in
disproportionate punishment--does not matter whether you were an active participant or insignificant.
V.
Accomplice Liability: Mens Rea
A. In General- Two states of mind
1) Intent to assist the primary party to engage in conduct that forms basis of the offense;
2) Must have mental state required for commission of the offense.
a. Ex- S, a customer at a bank P is robbing tells P that he will never rob bank because there is a guard in back
of him—P disarms guard and robs bank. S is not an accomplice because he did not have the mens rea.
First, he did not intend for his words to assist P to engage in the robbery. Second, S did not want the bank
robbed.
B. Significant Mens Rea issues
1) The feigning accomplice- When a person joins a criminal endeavor as an ‘accomplice’ but feigns a criminal
intent in order to obtain incriminatory evidence against the primary party.
a. Wilson v. People- Peale and Farrell, drinking partners, go into a fight over Peale’s assertion that Farrell stole
his watch. They talked and agreed to go rob a drugstore. Peale assisted Farrell to enter Moore’s store.
While Farrell was inside, Peale called the cops, then returned and took property that Farrell handed to him.
The cops came and arrested them both. Peale was acquitted. He lacked the second mens rea of an
accompanied (the mental states required for commission of the offenses of larceny and burglary.). Since
larceny requires specific intent to deprive another of property permanently, Peale could not be held liable,
since he called the cops. Peale also lacked he specific intent of burglary.
2) Purpose vs. Knowledge. The meaning of intent. – Most courts hold that a person is not an accomplice in the
commission of an offense unless he shares the criminal intent of the principal; must be a community of purpose
in the unlawful undertaking.
3) Liability for crimes of recklessness and negligencea. MAJORITY- Guilt is allowed as long as S has the intent to assist the primary party to engage in the conduct
that forms the basis of the offense. Second, mental state required for commission of the substantive offense. As
long as criminal negligence is sufficient to convict P, it should be adequate to hold S accountable.
b. MINORITY- Accomplice must want the crime to be committed by the other party. Cannot just be reckless
or negligent.
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1. Kenny encourages Edo to drive really fast on a busy road near a school. Edo strikes and kills Hidi Hurd,
a child leaving school for the day. Kenny is not guilty, since he did not intend that Edo kill Heidi.
4) Attendant circumstances
5) Natural and probable consequences doctrine
VI. Liability of the secondary party in relation to the primary party.
A. General Comments- At (OLD) CL, an accessory could not be convicted of the crime in which he assisted until the
principal was convicted and, with the limited exception of criminal homicide, could not be convicted of a more
serious offense or degree of offense than P.
1) For an accomplice to be guilty of a crime, there must have been a crime committed by another person from who
the accomplice’s liability originates.
a. Ordinarily not a bar to conviction of S if P was not prosecuted—This is because non-prosecution can result
from death, immunity, etc. (or simply Edo as prosecuter)
b. However, P’s acquittal is trickier- Sometimes crime did occur even though there is no conviction. See
below.
B. Liability When the primary Party is Acquitted
1) Primary party as an innocent instrumentality- If Dan coerces Mark to steal by threatening his life, Dan may be
convicted of larceny under the innocent instrumentality rule. (Mark will get off under a duress excuse (defense).
Dan is directly liable here, and thus Mark’s acquittal is no bar to conviction of the culpable party.
2) Acquittal on the basis of a defense
a. Justification defenses- If P was justified in killing V (in self defense), then S will also be acquitted. In the
absence of wrongdoing by P, there is no crime to impute to S.
b. Excuse defenses- When P is acquitted on the basis of an excuse (insanity, duress, intoxication), his acquittal
should not bar a successful prosecution of a secondary party to whom the excuse does not extend. If the
primary party is guilty of all of the elements of the crime, and his conduct is otherwise wrongful, there is no
reason why the secondary party should not be convicted of assisting in the wrongful conduct.
1. United States v. Lopez (1987)- S helped P escape from prison. P sought to show at trial that she fled
because of unlawful threats to her life. HELD that S’s right to introduce evidence depended on whether
P’s claim was founded on necessity (justification) or duress (excuse). Since excuses are personal to the
actor and justifications carry over, this distinction matters. Case was sent down to jury.
2. Acquittal on the basis of lack of mens rea2) Acquittal on the basis of lack of mens rea
a. In general1. Regina v. Cogan and Leak- Leak convinced Cogan to have sex with his wife by falsely telling him that
she would agree. Leak really compelled his wife to submit to Cogan. Cogan was acquitted under the
Morgan principle that his unreasonable mistake of fact regarding the wife’s consent negated the mens
rea of the offense (see mistakes of fact) HELD Leak is still guilty of rape—Cogan was his innocent
instrumentality. (Problem is that, as we see above, many courts will not make you guilty of raping your
own wife). Court also reasoned that the actus reus was the wife being forced to have sex against her
will—so a crime occurred and Cogan’s ‘crime’ will be imputed to Leak.
Problem is that no legal crime occurred- Cogan did not have mens rea.
b. The feigning primary party1. State v. Hayes- S proposed to P that he join S in the burglary of V’s store. S was unaware of the fact
that P was a relative of V, and agreed to the plan with V’s approval. S helped P get into building and
took property handed to him by P. trial court convicted S of the offense, but was overruled by state
supreme court. P was not guilty of the offense, so S could not be either.
c. Liability of an Accomplice: When the primary party is convicted- At CL, except with criminal homicides,
an accessory before the fact could not be convicted of a crime more serious than that of the principal. Some
say that you should be able to punish S for a more serious crime for crimes other than homicide.
1. Regina v. Richards- S procured to men (p’s) to severly beat up her husband. P’s only wounded him a
little. (‘unlawful wounding’). HELD S was guilty of lesser offense, even though she had a more
culpable state of mind than P. (Case was later overruled).
2. Note: Non-homicide cases, as above, are different from homicides. In a homicide case, S wants
precisely what has occurred—death—the only difference between S and P in this case would be
level of culpability as to the harm inflicted. If we convict S in the above case for the greater
offense, we are convicted for a non-existent crime. This is precisely the same intuition that
punishes intended crimes less severely.
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VII. Limits to accomplice liability
A. The legislative-exemption rule-A person may not be prosectuted as an accomplice in the commission of a crime if he
is a member of the class of persons for whom the statute prohibiting the conduct was enacted to protect.
a. Example- Statutory rape—it would conflict with legislative intent to prosecute woman as a secondary party to
her own statutory rape.
B. Abandonment- Person who abandons assistance to P can get off. However, this needs to be communicated to P and S
needs to make a real effort to neutralize the effects of his prior assistance. Cannot be spontaneous and unannounced.
VIII. Model Penal Code
A. Forms of liability1) In general- Under MPC, a person is guilty of an offense if he commits it by his own conduct or by the conduct of
another person for which he is legally accountable, or both.
2) Accountability through an innocent instrumentality- One is guilty of the commission of a crime if he used an
innocent instrumentality to commit it (see above). P must have the mental state sufficient for commission of the
offense and causes the innocent instrumentality to engage in criminal conduct.
a. Note: D must cause instrumentality to engage in the conduct. Ask but…for question about D’s conduct
(CL is more implicit, and an instrumentality could be an insance person that D did not cause to do
something). Under MPC, D must be aware of instrumentality’s dangerous tendencies in order to get D.
3) Misc. Accountability—A person may be held accountable for another person’s conduct if the law defining an
offense provides for it. Legislature can enact special law of accomplice liability. –
a. Aiding and abetting a suicide attempt.
4) Accomplice accountability- A person is legally accountable for the conduct of another person if he is an
accomplice of the other in the commission of the criminal offense
a. Accomplice liability is separate from innocent instrumentality rule.
b. It is dependant on relationship of parties in commission of a specific offense.
B. Nature of an accomplice
1) Conduct.
a. in general- S is an accomplice of P in the commission of an offense if , with the requisite mens rea, he:
1. Solicits P to commit the offense.
2. Aids, agrees to aid, or attempts to aid P in the planning or commission of the offense.
3. Has a legal duty to prevent the commission of the offense, but makes no effort to do so.
b. Accomplice liability by solicitation- S is an accomplice of P in commission of an offense if he solicits P to
commit the crime.
c. Aiding in commission of a crime
d. Acomplice liability by agreeing to aid- This applies even if S does not fulfill his promise to aid. (Under
common law, agreeing to aid would have to encourage P).
e. Accomplice liability by attempting to aid- S may be held accountable as an accomplice of P if he attempts to
aid in the planning or commission of the crime, EVEN IF aid proves ineffectual.
1. Edo opens a window so that Dan may enter and commit a felony inside a house. Edo is an accomplice,
even if Dan enters through the door (like a moron).
2. Relationship of Complicity (§ 2.06) to Attempt (§ 5.02).------- MPC 5.01 (3) provides that a person
who engages in conduct designed to aid in the commission of an offense that would establish
complicity under 2.06 is guilty of an attempt, although the crime is not committed or attempted by that
person.
a) S sterilizes equipment in order to help P commit illegal abortions. Even if P was arrested before he
takes a substantial step, S can be found guilty of criminal attempt. (Ironically, P is not).
f. Accomplice liability by omission- Ordinarily no duty, so one cannot be an accomplice by failing to act.
However, if the omitter has a duty to prevent the commission of offense (ex. He is a cop), then there is a
duty. NOTE: Omitter must not act with purpose—cannot be ignorant.
2) Mental State
a. in general- A person is an accomplice if he assists with the purpose of promoting or facilitating the
commission of the offense.
1. Knowingly is not enough- Ex. Kenny, a merchant sells dynamite to Dan with knowledge that Dan
intends to use the explosives to blow up the world trade center, Kenny is not an accomplice unless it was his
consious objext to facilitate the commission of the crime.
b. Liability for crimes of recklessness and negligence- 2.06 (4). Accomplice if:
1. He was an accomplice in the conduct that caused the result
2. He acted with the culpability regarding the result that is sufficient for commission of the offense.
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NOTE: This has special significance for felonly murder—The accomplice is made strictly liable under
MPC for the ensuing death of a victim of felony on the gounds that S possessed the level of culpability in
regard to the result that is sufficient for commission of the offense.
c.
Attendant circumstances- Deliberate ambiguity—court can determine that purpose extends to attendant
circumstances, so in our example of a guy assisting his buddy to rape his wife (who buddy believes is
consenting), S would not be guilty--- Or the other way around.
d. Natural and probably consequences doctrine- Code does not recognize this doctrine (CL does). So… the
liability of an accomplice does not extend past the purpose that he shares.
1. mark aids Dan in the commission of a bank robbery by giving him the details of the bank’s security
system. Later, Dan steals a car, which he uses as his getaway car. Mark can be an accomplice in the
robbery but not the theft, even if it is a natural consequence.
C. Liability of the accomplice in relation to the perpetrator- Accomplice may be convicted of a crime upon proof of its
commission by another, regardless of whether the other person is convicted, acquitted, or not prosecuted.
1) Also, accomplice may be convicted of a different offense or a different degree of an offense than the primary
party.
2) Person who is legally incapable of committing an offense personally may be held accountable for the crime if it
is committed by another person for whom he is legally accountable.
a. Example—a husband may be convicted as an accomplice in wife’s rape (but not of raping her).
D. Limits to accomplice liability- A person is not an accomplice if:
1) S may not be convicted as an accomplice if he is the victim of the offense.
2) S is not an accomplice of P if S’s conduct is inevitably incident to the commission of the offense.
a. Example- purchaser of drugs is not an accomplice in the commission of a sale of the controlled substance.
3) Defense of abandonment- person not guilty if he terminates before crime and:
a. Neutralizes his assistance.
b. Gives timely warning to the police of the impending offense.
c. In some other manner attempts to prevent commission of crime.
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