Aims of Criminal Law
Main Themes of Criminal Law
1. Statutory Interpretation/Construction: Ct often reads language into statutes for reasons they think are
fundamental to any just system of punishment.
a. How legal language compares w/ everyday language – jurors aren’t legally trained, they
translate into their own language.
b. Courts finding unplayed notes: Fill in silences w/ content legislature “must have” intended.
2. Legislature v. Judiciary: Criminal law depends on legislative will b/c they define definitional and
defense elements
3. Allocation b/w Judge and Jury
4. Relationship b/w heart & mind and blame & punishment: Notions of human agency, personal
responsibility, and under what circumstances we should hold people 100% responsible for their
misbehavior and under what circumstances we should limit or absolve their liability for wrongdoing
a. Conflict b/w our moral conventions of blame/punishment vs. just deserts
5. Major Debate in Crim Law: Punishing people w/o subjective culpability
Approaches to how the law should apply to conduct
 Responsive/Non-instrumental: Law should respond to the way humans already are, give effect to
their beliefs as they are now constituted and ask what’s the fairest thing to do given that reality.
o Looks backwards: Looks to trying to be fair to individual as that individual is constituted w/
his current beliefs. Just deserts; look only at specific case.
o Punishment: Deserved for aberrant behavior; did something reas person wouldn’t have.
 Instrumental/“Channeling”: Law should channel behavior, not merely respond to it, even when that
requires defeating ordinary beliefs/values. Law should lead, not follow, and induce behaviormodification. Look to promoting social welfare. But to punish would be like imposing SL.
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Proof Beyond a Reasonable Doubt
PRESUMPTION OF INNOCENCE
 Constitutional Principle: Ct-created, b/c nowhere mentioned in Constitution
o In re Winship: DPC protects against conviction except upon proof BARD of every fact necessary
to constitute the crime charged  If have reasonable doubt, acquit
 BARD gives effect to presumption of innocence; it minimizes the risk of false convictions
(but increases risk of false acquittals)
 Reasonable Doubt: After considering all evidence, juror can’t say they feel an abiding
conviction, to a moral certainty, of the truth of the charge.
 More likely than not comparison: Jurors convict more under that std, so BARD
reduces errors in convicting innocents
 Policy – Harlan: Cost of convicting an innocent is > cost of releasing guilty one. Protects
important interests of the D: May lose his liberty if guilty and stigma
 Diff arguments re relationship b/w moral condemnation and criminal punishment
o Utilitarian argument: Fear of stigma and moral condemnation that comes from convictions
deters behavior, but if it’s understood that conviction doesn’t always mean guilt, and lots of
innocents are convicted, then there may be delusion in stigma associated w/ conviction and thus a
diminution of deterrent effect of criminal conviction.
o Just Deserts: Benefits to society of imprisoning people doesn’t alone justify a higher burden of
proof. Want the people who are punished to have deserved it (morally culpable).
 Sentencing Enhancements: Facts that dictate an increase in punishment can be established by a
preponderance of the evidence. This is another way of skirting Winship BARD req – decision taken
from jury to judge. SEs are based on the characteristics of the crime (violent v. non-violent murder).
Burdens of Proof
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Burden of Persuasion: Convince fact-finder the fact is true.
Burden of Production: Introduce enough evidence to put a certain fact at-issue.
Allocation of Burdens: Burden generally falls on prosecution for both, except w/ ADs and provocation
or EED as mitigators, where burden falls on D or when statute calls for it (NY).
MPC: D generally bears burden only of production, and once affirmative defense is raised, the P must
disprove it BARD. P must prove every factor of every element that could make D more guilty.
Definitional Elements (Actus Reus + Mens Rea) and Defenses (Excuses and Justifications)
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Patterson: NY defined murder as intent to cause death and causing death. Absence of malice, aka “in
the heat of passion,” was defense D has to prove to reduce charge to manslaughter. Upheld.
o Cite Mullaney, where SC declared unconst. ME law that said murder = malice, intent and death
and D had to prove absence of malice (killed in heat of passion) b/c went against Winship saying
P has to prove every element of the crime BARD.
o Here, P only has to prove elements of murder BARD: death, intent and causation. Once P does
that, D can demonstrate absence of malice by a preponderance of the evidence (and thus get a
lesser charge—manslaughter). But point is state is supposed to prove absence of HOP.
 This is the legislature skirting the BARD requirement by redefining the definitional
elements; undermined Mullaney and eviscerated Winship (protection of constitutional
rights) b/c other states can now redraft their criminal laws to shift burdens to D.
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o DISSENT: This lets legislature shift burden of persuasion wrt any factor as long as it doesn’t
mention the factor in the statute. Contrary to presumption of innocence. This makes it all about
form rather than substance; we want substance to give actual meaning to innocence and guilt.
Gratuitous Affirmative Defenses: Those that are allowed/disallowed by the legislature (like HOP,
EED). Nongratuitous ones are like self-defense, insanity; they are those that any just system of
punishment should recognize where state can shift burden to D.
o Greater/Lesser Power: Since state has power to (not) recognize gratuitous ADs, which is a
“greater power,” also has right to shift burden of proof to D, a “lesser power.”
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Elements of Punishment: Actus Reus & Mens Rea
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Definition: Every criminal act requires AR (bad act) and MR (fault).
Policy: Establishes culpability and society only wants to punish criminal conduct.
o MPC 1.02(1)(c): Purpose of criminal law is to safeguard conduct that’s w/o fault from
condemnation as criminal.
Conduct and Decision Rules: Former is about actus reus, later is about mens rea
Actus Reus: Culpable Conduct
Material Elements
1. Forbidden Conduct: Act or omission. In rape, sex.
2. Attendant Circumstances: Consent or non-consent.
3. Results: Pregnancy, death, poisoning.
Overt and Voluntary Conduct: Need both a will and an act
 Purpose: Need voluntary act b/c law can’t deter involuntary acts, and it’s necessary for just
punishment. Existence of choice. Sense of personal security would be undermined in society where
inactivity could lead to conviction.
 Read-in: Cts often read-in this req regardless of legislative intent or plain meaning of statute
o But: Along w/ Patterson, if it’s missing, maybe lack of voluntariness can be made D’s burden to
prove. But then argue it’s inherent in notion of crim responsibility
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Strict Approach: Martin. Officers arrested him at home for domestic violence and took him to a
highway, where he acted drunk; it was against the law to be drunk on a highway.
o Rule: The act you’re punished for has to be voluntary (he wasn’t voluntarily acting drunk on a
highway). Need to have voluntarily created excessive risk of harm.
o Holding: Accusation of drunkenness in a public place can’t be est’d by proof that the accused,
while drunk, was involuntarily and forcibly carried to that place. Something unsavory about
letting cops create the violation in this way. For D.
o MPC would convict Martin b/c conduct included a voluntary act (acting boisterously which was
evidence of being drunk). Similarly, would get him even if he did something w/ gun to his head
– b/c it was voluntary, regardless. NOTE: Voluntarily drinking at home isn’t enough, b/c that’s
not generating an unreasonable risk of possibly appearing in public.
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MPC Approach: 2.01. A person is not guilty unless his liability is based on conduct which includes a
voluntary act or the omission to perform an act of which he is physically capable.
Principle: When carrying out the voluntary act you generated an unreasonable risk of the involuntary
act, so the two will be unified (not unifying ALL involuntary w/ voluntary)
o Exception: If no such risk, we’ll disjoin and the involuntary act will bar criminal liability
Decina: Epileptic seizure isn’t voluntary, but there was voluntary act w/ getting in car knowing you
have epilepsy. At that moment, did something that was reckless b/c created an excessive risk. That’s
the difference b/w this and Newton.
o Unifying Problem: Here, court is unifying voluntarily driving w/ involuntary seizure. Why not
then unify involuntary condition of being on street in Martin w/ earlier voluntarily beating wife
and getting drunk (foreseeable police would come and take you out).
NOTE: Martin would find her reckless too b/c created excessive risk.
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Intentions don’t matter (“I didn’t mean to drive dangerously” won’t cut it).
Habit: Saying you’re going to make a left but you make a right out of habit is voluntary; so is
possessing something even though you forgot you had it.
Words can be acts: Treason, conspiracy, aiding and abetting.
Somnambulism:
o With act done mistakenly, accidentally, compulsorily or under duress, it’s voluntary. With act
done b/c of seizure, reflex or somnambulism, no human act at all. Cogdon
Innocent act, culpable thought: No one is punished for thoughts alone b/c how to prove?
o Naked, Wicked Heart: No legal liability if culpable thought but innocent, or no, act.
Non-Volitional Acts: Don’t punish
 Conscious: Like being picked up and taken, as in Martin
 Unconscious: Physical injury that renders you unconscious, as in Newton, or somnambulism
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Definition: Involuntary Acts
o MPC 2.201(2): Reflex or convulsion, but lack of any awareness; body movement during
unconsciousness or sleep; conduct from hypnosis.
Policy: If you’re unconscious when engage in wrongful conduct, not responsible b/c that is not your
true self. Tend to locate blameworthiness in conscious agency.
Burden of Proof: P bears BARD that act was voluntary; D may have bar to liability if proves lack of
volition, as in legal insanity.
People v. Newton: Shot cop, but says he was unconscious when he did it.
o Holding: Jury should’ve heard involuntary unconsciousness defense.
o “Involuntary” Includes: Not just reflexes; can involve coordinated set of movements where the
subject physically acts but is not, at the time, conscious of acting.
o Difference b/w this and acting out of PTSD: In the latter, even though your behavior is
involuntary, it was processed by your conscious mind before you acted, so it is voluntary.
Omissions: Unlikely to be liable for omission to act
 Definition: Failure to act may make someone criminally liable when: a statute imposes a duty to act
for another, where one stands in a certain status relationship to another, and where one has voluntarily
assumed the care of another and so secluded the person from someone else’s help. Jones v. U.S.
 Policy: Reluctance of our law to impose liability for omissions even where failure to act is immoral.
 Burden of Proof: P proves voluntary omission + legal duty.
 Anglo-American v. Continental Approach: Moral v. Legal Duty
o AA: If no legal duty, no responsibility to act, Beardsley
o Continental: Duty to give a damn, Stone and Dobinson
 Good Samaritan Law Debate
o For, Mills and Bentham: Legal duty to render aid b/c by not doing so we harm others.
o Against, Macaulay & Livingston: Where to draw the line? Don’t want to force people to act.
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No liability:
o Pope v. State: Pope watched woman beat her child and did nothing; baby died. Need to figure
out if she was responsible for supervising the child under statute. Held: No legal obligation to
baby, even if moral obligation, b/c wasn’t supervising the child since mom was there.
General Rule: Random bystander has no duty.
o Beardsley: Woman OD’d while in man’s house, he didn’t call a doctor.
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 Holding: D had no duty; just b/c in his house doesn’t mean legal duty existed.
 RULE: Omission must be the immediate and direct cause of death.
o Stopping life support (vs. giving euthanasia)
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Liability:
o American Approach: One who culpably places another in peril has duty to assist them
 Kuntz: Stabbed boyfriend in self-D, then left; he died. Liable b/c caused his peril (but
another J went other way).
 Oliver: Took guy to her house and he OD’d; dragged him outside. He died; she’s guilty b/c
took him from public place where others could help to private place.
 Even when rape someone and they drown in front of you b/c of shame, have duty.
 Tina: Would argue she didn’t volitionally bring about child’s fate; only Adam liable
o Continental Approach: Stone and Dobinson: England. D convicted of manslaughter when
anorexic sister died; occupier of house must take reas steps to save life of fellow occupant.
Defenses
1. Justification: Goes to acts. D admits actions but claims the actions were conducted in a way the law
doesn’t seek to prevent, like self-defense or defense of others. MPC 3.02.
2. Excuse: Goes to actors. D admits committing act but claims ct can’t draw inference from bad act to
bad character and that D did something out of character (human frailty: external circumstances like
EED, insanity, heat of passion). Wedge b/w true and contingent self.
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Mens Rea: Culpable Mental State
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Concern of criminal law is with the level of intentionality of D’s wrongful act: W/ what the D
intended, knew, or should’ve known when he acted.
o *Mens Rea only relevant once all elements of actus reus have been satisfied*
Policy for Mens Rea: Blame and punishment are unjust in the absence of choice.
Kinds of Harm and Degrees of Culpability/Blame: Root of Needing Mens Rea For Different Acts
 Just desserts: Distinctions of culpability only make sense if based on deserts and we have different
schedules of punishment for different levels of culpability.
o Kinds of Harm: If all crimes are considered equally harmful, all should receive same
punishment; no distinguishing b/w violating law by speeding 5 mph or by killing.
o Degrees of Blame: If you think we should treat people who intentionally hurt differently from
those who negligently hurt, then you think punishment should be connected to the kind of
harm and degree of blame.
o This commits us to a deontological, Kantian approach to punishment—deserts should drive
your blame and punishment (deserts implies non-utilitarian)
o If want punishment to be tethered to degree of culpability and kind of crime then want to avoid
lesser-crime and lesser-wrong analyses — as they sever this linkage.
DEGREES OF CRIMINAL CULPABILITY IN MPC
 MPC 2.02, Mens Rea: Unless some element of mental culpability is proved wrt each material
element of the offense, no valid criminal conviction may be obtained.
o Gets rid of value-laden terms like malicious, wicked, willful
 Four Levels of Culpability
o Purpose: Conscious object to cause a particular result. “I wanted to poison her w/ gas.”
 Intent: Is intent only purpose, or does it include knowledge/substantial certainty?
Some say the same (normative approach), others say they’re different (diff to have a
purpose to do something v. to know w/ substantial certainty something will happen)
o Knowledge: Don’t desire the result, but know w/ substantial certainty result will happen b/c of
your action. (In torts, “intent”). Controversial whether this is just as bad as “purpose.”
 Example: D puts bomb on plane to blow up A, doesn’t want B-Z passengers to die but
knows w/ substantial certainty they will
o Recklessness: Consciously (aware) act in spite of a substantial and unjustifiable risk of a
given result, but not substantially certain. Awareness of substantial risk may be ok as long as
it’s not unjustifiable (rushing dying child to hospital). Conscious creation of excessive risk.
 MPC 2.02(3): Minimum level of culpability req’d for mens rea (and “maliciousness”).
But creates a loophole b/c if you’re arrogant and don’t think you’re creating a
substantial risk, wouldn’t be liable b/c not aware of substantial risk. (Instrumentalism?)
 Fill statutory silences w/ recklessness
 Criticism: The substantiality req can be swallowed by the unjustifiable req.
 Choice Theorists: Have to at least be aware you’re doing wrong, and choose to do so,
before found criminally culpable. Don’t want to attach crim liability to carelessness.
o Step One: Determine if actor’s conduct created excessive, unjustifiable risk.
o Step Two: If so, was the actor aware?
o Step Three: Does the actor’s motive nevertheless excuse him (save child)?
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o [Criminal] Neg: Failed to appreciate (no awareness) a risk that a reas person would’ve (civil
neg) AND moral culpability. No subjective culpability. As in recklsns, the substantiality of the
risk (we all create some risks) and the justifiability of the act are the relevant stds of judgment.
 Santillanes: Include moral condemnation in crim neg (= gross neg), unlike in civil neg
b/c sanctions include loss of liberty, perhaps life, and stigma.
 Rape: If a reas person would’ve been aware you didn’t have consent, you are culpable.
 Choice Theorists: Argue this is form of SL b/c actor was unaware  didn’t choose.
 Jury Makes Value Judgments re Neg & Reck: Decides whether it’s a gross
deviation from care reas person would’ve exercised or if risk was really substantial.
o Strict Liability: No reas person would’ve realized his action would’ve caused the injury, or
even had that risk, but hold him liable anyway. No subjective culpability, no neg even.
 MPC doesn’t recognize SL b/c think every crime should involve culpability (Mns R).
 Goes to ACTS b/c it’s liability w/o subjective fault. If involuntary act, no liability, b/c
only consider mens rea after found a voluntary act.
DILUTING MENS REA REQS & JUDICIAL ACTIVISM
Knowledge
 US v. Jewell: D convicted of knowingly transporting marijuana; said he didn’t know it was in his car.
o MPC Definition of Knowledge: Knowledge is established if a person is aware of a high
probability of its existence, unless he actually believes that it does not exist.
 This ct doesn’t follow that b/c worried about loophole w/ people saying I really
believed it didn’t exist.
o Instruction: State can show “knowledge” by proving that if D wasn’t aware there was
marijuana in the vehicle, his ignorance was entirely a result of conscious purpose to disregard
the truth . To act knowingly isn’t to act only w/ positive knowledge but also to act w/ an
awareness of the high probability of the existence of the fact in question. When such
awareness is present, positive knowledge isn’t req’d.
 The ct is reading knowingly in a way that dilutes the mens rea req; recklessness
(awareness of a risk) is sufficient to est knowledge.
o Holding: Deliberate ignorance and positive knowledge are equally culpable. If “knowledge” =
only positive knowledge, that would make deliberate ignorance a defense. Conviction aff’d.
o Dissent: Diluting the mens rea so all it requires is conscious ignorance can capture a lot of
legitimate transactions that you don’t want people worrying about being criminalized for. One
must be aware of a high probability of the truth, shouldn’t be convicted if “actually believed”
no marijuana in the car.
 Example: Banks are instruments of lots of illegality, don’t want to make bank owners
worry about accepting a loan or bags of money.
 Conscious Ignorance Issues: Willful blindness instructions help prosecution prove knowledge in
drugs, theft, and securities fraud. To avoid risk that jury might convict on basis of mere neg, some cts
hold that conscious ignorance instructions shouldn’t be given unless: (1) Evidence establishes D was
subjectively aware of high probability of illegal conduct, and (2) D purposefully contrived to avoid
learning of the illegal conduct.
o Example: Bank fraud prosecution, ct held it was error to give willful blindness instruction
though bank owner failed to investigate weird transactions b/c info available to him didn’t
suggest criminal activity.
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o US v. Giovannetti: D convicted of aiding gambling by renting his house to gamblers. No
direct evidence of knowledge, but he was a gambler, and knowing his lessees were
professional gamblers, he made no inquiries about their intended use of the house.
 Holding: No conviction; error to give “ostrich” instruction. Ostriches are not merely
careless birds; they deliberately avoid acquiring bad knowledge. Ostrich instructions
are for times when D takes steps to make sure he doesn’t acquire full knowledge of the
bad dealings. D here didn’t act to avoid learning the truth.
Specific, Conditional and General Intent Crimes
 Specific Intent: Done w/ some further intent/motive.
o US v. Neiswender: D approached someone’s lawyer and said I have a friend on the jury, pay
me 2K and I’ll make sure the case comes out the right way. Prosecuted under statute that
convicts someone who “endeavors to impede the due administration of justice.”
 Defense: He wasn’t endeavoring to actually influence counsel’s behavior, he just
wanted to get money. D actually insisted that L not slouch in his duties.
 Holding: Even though endeavoring is a specific intent req (purpose/knowledge), D
only needed knowledge that success in his fraud would have likely resulted in
obstruction of justice. Knowledge is provided by the reas foreseeability of the natural
and probable consequences of one’s acts. So if reas person would’ve foreseen risk of
tampering w/ justice, D’s liable. Ct replaces purpose w/ negligence.
 Cunningham Analogy: There we said wickedness can’t carry over, but here wickedness
of stealing is being carried over to obstructing justice.
 Conditional Intent
o Holloway: Accused of “carjacking w/ intent to cause death or serious harm.” D said didn’t
carjack to kill occupant, just told him he would be killed if he didn’t get out of the car. I’m
being charged w/ assault w/ intent to kill, but I didn’t have the intent.
 Holding: Conditional intent is enough to satisfy “intent to cause death” req.
 Normative approach: Interpret statute to maximize deterrent effect. Equate
“willingness” to cause a result w/ intent to cause a result.
 This is the MPC approach: When a particular purpose is an element of an
offense, the element is est’d although such purpose is conditional, unless the
condition negatives the harm or evil sought to be prevented by the law defining
the offense (Eg: D takes property intending to keep it, but only if it’s really his).
 Dissent: Language Approach. In English “intent” never connotes a purpose that’s
subject to any conditions. It is unheard-of to say to speak of my having an “intent” to
do something when my plans are contingent upon an event that is not virtually certain.
 Consequences of this ruling: If a guy buys drugs and tells wife he’ll sell them if money
gets tight —he would be guilty of “possession with intent to sell.”
 General Intent: When definition of a crime consists of only the description of a particular act, w/o
reference to intent to do a further act or achieve a future consequence. (trespass).
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THREE APPROACHES TO MENS REA
1. Cunningham, Faulkner, MPC Approach: Dominant approach today. Some level of culpability has to
attach to every material element of the crime.
2. Prince Majority: Lesser-wrong. Still around in cases like White and basis for statutory rape law. Not
dominant. (See Mistake of Fact, below)
3. Prince Dissent: Lesser-crime. Can supply mens rea for lesser crime to greater or even different crime.
This is trial court approach in Cunningham and Faulkner (think it’s an unloaded gun but you actually
kill someoneguilty) (See Mistake of Fact, below)
MPC 2.02: No SL; each material element has to have mens rea. When statute is silent, need reck-ness.
 Cunningham: Stole gas pipe, which accidentally caused gas to seep into mother-in-law’s room;
poisoned. Prosecuted for larceny and malicious poisoning.
o Trial Court: Don’t need to intentionally poison someone; if you were doing another wicked
thing and caused the injury in doing so, you acted maliciously to meet the req.
o Higher Court: Mens rea of another crime (larceny) can’t be transferred to supply mens rea for
this crime (poisoning). There is no umbrella of wickedness.
 Maliciousness: Intent or acting in conscious disregard of a foreseeable risk
(recklessness) — did you foresee that doing the act might cause injury to someone and
yet you did it anyway? HERE – NO.
 Faulkner: To be liable for maliciously burning ship, must show D was wicked wrt larceny count and
either intentionally or recklessly set fire to ship. No umbrella of wickedness; have to have subjective
culpability for each crime.
MISTAKE OF FACT DEFENSE: Exculpation via Excuse
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Definition: Although D committed actus reus, he honestly believed in set of facts that would prevent
him from forming the requisite mens rea for the crime.
MPC 2.04: Ignorance of law or mistake of fact is a defense when it negates the mens rea essential to
the commission of an offense. Mistake need not be reasonable if the element of the crime requires
acting purposely or knowingly. If your mistake was reckless or negligent, you’ll get punished for your
level of mistake (on a lower grading of the statute, if available). If it was neither, you’re off.
o Example: Shoot what I think is unloaded gun. It kills. No purpose or knowledge b/c I didn’t
know (no intent), so under MPC  neg homicide (or manslaughter if reckless).
Non-MPC – PA: Mistake of fact is a defense when it negatives the intent, knowledge, recklessness,
or neg req’d by the offense, but only if the mistake is one “for which there is a reasonable explanation
or excuse”  one a reas person would make
o Implication: Any neg mistake will satisfy mens rea req even if you had no intent
Regina v. Prince: D convicted of taking unmarried girl under 16; she told him she was 18 – he
honestly and reasonably believed her so he said I had no mens rea as to that element.
o Holding: Conviction upheld; the act was wrong in itself and we’ll require that you know that
 Lesser-wrong principle: When you do this act, you know you’re doing something
morally reprehensible (taking a young unmarried girl away from parents w/o consent).
If she’s 16, you’re violating a moral norm but it’s not criminal; but if she is 16, too bad.
o Arbitrary Statutory Construction: Court picked some elements of the crime and read in mens
rea (like knowledge as to father’s consent) but not this one – initial wrong hovers over.
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o Dissent: If the facts were as believed he wouldn’t be guilty, so he shouldn’t be guilty; there
has to be criminal intent before attach mens rea to a greater crime. Moral wrong shouldn’t be
enough to convict.
 Lesser-crime approach: If you think you’re committing small crime (have criminal
intent) but end up committing greater crime, that’s a diff story -- still guilty of greater
crime b/c had mens rea for lesser crime. So if you intend to seriously harm but end up
killing, you’re liable for killing b/c you ran the risk.
 NOTE: This lesser-crime approach goes against MPC, which says have to prove mens
rea as to each element of the crime charged, but it’s still around today.
o Criticism: The approach w/ morality is dangerous b/c how to know what the clear community
judgment is about the wrongfulness of an act. ALSO, moral duties shouldn’t be ID’d w/
criminal duties.
White v. State: D convicted of leaving w/ intent to abandon pregnant wife. But didn’t know she was
pregnant.
o Prince Approach: A husband abandoning a wife is morally wrong, so did so at his peril. Can’t
plead ignorance as a defense.
o Goes against MPC: MPC says need mens rea (awareness) as to element of her being pregnant.
o Judicial law-making: The statute was to protect pregnant women; by holding D culpable just
for deserting wife, it invokes a different and broader moral norm so engages in judicial
lawmaking.
Partial Strict Liability in White and Prince: As to age in Prince and pregnancy in White, we’re taking
a form of SL. (B/c still need mens rea for other elements, it’s not full SL.)
o Neg as form of SL: The lesser-crime and lesser-wrong doctrines are used to import a mens rea
req into a statute, which on its face imposed SL.
Statutory Rape: People v. Olsen. Boys came into girl’s trailer and raped her; she said she was over
16. Statute silent as to whether reas mistake as to victim’s age constitutes defense.
o Holding: No defense of reas mistake of age; policy concern for children.
o Dissent: Smacks of cruel and unusual punishment to impose criminal sanctions w/o showing
fault. Cites Morissette, saying there are SL crimes but those are generally confined to “public
welfare” offenses.
o Rule: In most Js, mistake as to age, even if reasonable, is not a defense to statutory rape. (SL)
CHOICE THEORY VERSUS NEGLIGENCE
 Choice Theory: No criminal liability w/o awareness of wrongdoing; can only make decisions based
on what’s in your present consciousness
o Socialization: May have character traits that you didn’t have much choice in
 Criticism: Tension w/ conventional morality; anyone who doesn’t care is exculpated
o Law doesn’t follow strictly mentalist lines: Can find subjective culpability even when actors
aren’t aware of wrongdoing in their values
 Look to sets of dispositions — not just conscious thought-processes. Can blame people
for their hearts, not just for their heads b/c sometimes condition of heart determines
content of head.
 Homicide: Allows for criminal liability based on criminal negligence.
 Bridegroom forgets wedding day
o Criminal liability for criminal neg is all over criminal law: Can’t be choice theorist and accept
that (they dismiss them as anomalies)
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Deterrence: How can neg serve instrumental notion of deterrence if people are
unaware of wrongdoing? B/c even if you lack awareness of wrongdoing, might
exercise more care to avoid inadvertence.
STRICT LIABILITY: Liability w/o culpability (no awareness of legal or moral wrong)
SL at Common Law: CL sometimes departed from ordinary commitment to mens rea even before
regulatory era, as in mistake of age not being a defense in sex offenses w/ minors or lesser-wrong and
lesser-crime principles as to material element of the crime charged.
Public Welfare Offenses: SL  Punishing for the act alone
 Rule: Actor may be criminally convicted although he exercised reas care; criminally punishing for
actus reas alone
 Penalties: Commonly small, no stigma associated w/ it like murder. (BUT, Balint got 5 yrs)
o Deterrence: Want to use stigmatizing effect of criminal conviction to heighten care over that
which civil fines would achieve
 Dilemma: How to justify convicting w/o any fault? For sake of common good. Choice theorists 
o Criticism: Debate about whether SL really results in greater investment in care by ordinary
actors than just neg. AND, are we really comfortable w/ SL in a criminal context which is
supposed to be about punishment, not compensation?
 Mala prohibita: Regulatory crimes that aren’t inherently wrong. Jay walking.
 Statutory Construction: Here, infer from silence that Congress didn’t intend to require proof of
mens rea to est an offense
 US v. Balint: D indicted for selling opium w/o order form req’d by law, but didn’t know he had to.
o Holding: Proof of knowledge was not req’d by statute  social policy concern. Congress
balanced the equities here and found it’s better to put burden on seller than buyer to determine
if he’s selling a prohibited drug under the law.
 US v. Dotterweich: Company bought medicine from mfrs and reshipped w/ own labels. One box
misbranded, so D sent misbranded items.
o Holding: Convicted even though no awareness of wrongdoing nor could’ve reasonably been
aware (morally innocent). Even though activity is socially beneficial, liable.
o Policy concern: To keep impure food and drugs off market. Penalties serve as effective
regulation. Better to put burden on seller than buyer b/c seller is in better position.
o Utilitarian arg: Sometimes justice to individual is outweighed by interest of greater good
Traditional Common Law Crimes: No SL
 Mala in se: Bad in itself (murder). Our moral norms clearly tell us those are harmful.
 Morissette v US: Believed Air Force casings he sold were abandoned by Air Force.
o Holding: For D, had to have known there was no abandonment. Intent has always been
inherent in larceny even when not expressed in a statute. D was not a thief; he did it openly
and candidly. Crime comes from evil-meaning mind + evil-doing hand.
o Distinguish 2 categories of criminal wrongdoing
 Traditional common law crimes: Silences filled by mens rea req in keeping w/ idea
that actor needs to choose to do wrong in order for us to blame and condemn
 Social welfare offenses: No mens rea req’d if silence in statute.
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Balance SL and No SL…Move toward No SL
 Staples v. US: D didn’t know gun was automatic. Statute silent as to mens rea. Govt argues firearms
are dangerous devices that should get SL.
o Congressional Intent Helps: Common law rules suggest some mens rea for crime necessary.
Offenses that require no mens rea generally are disfavored; some indication of congressional
intent, express or implied, is req’d to dispense w/ mens rea as an element of a crime.
o Holding: It’s unthinkable to us that Congress intended to subject law-abiding citizens to 10year imprisonment if gun turns out to be automatic. B/c it’s such a big penalty and since we
have no statement from Congress that mens rea isn’t req’d, we shouldn’t apply the public
welfare offense rationale. Need knowledge.
 Trend Line: Goes further than Morissette in rejecting SL b/c public interest in controlling gun
trafficking is no lower than that in having safe food. But while this case may signal retreat from cases
like Dotterweich, SL is still around.
Policy for SL – SL v. Neg Debate: Does SL really result in greater investment in care by ordinary actors
than just neg? Are we comfortable w/ SL in criminal context which is supposed to be about punishment?
 Some defend SL: Normative Arg
o Goodhart: There are certain offenses that have a serious effect on the public interest but which
are difficult to prove under usual procedure so it’s necessary to take more stringent steps to
wipe out the evil, even at risk that innocent may be convicted. The harm 10 acquitted may do
far exceeds injury that innocent man can suffer by his conviction.
o Kelman: At the moment of infraction, actor may appear powerless to avoid criminality, but it’s
invariably the case that he could’ve avoided liability by taking earlier steps which were hardly
impossible. Check her driver’s license to confirm age before you have sex w/ her.
 Many oppose SL
o Johnson: Holding business owners to SL is unjustifiable even though they have voluntarily
assumed their jobs b/c selling meat is a productive activity that law should encourage and we
shouldn’t punish people who have taken all reas steps to comply w/ the law.
o Schulhofer: Those who are most confident in their ability to avoid causing harm may be just
the ones who are most likely to be careless. SL may exclude from activity many people who
could play a valuable social role but are unwilling to face risk of suffering criminal penalties.
If penalties are serious, those who are careful and make provision for risks may be the most
likely to take the sensible precaution of not engaging in this activity at all.
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MISTAKE OF LAW DEFENSE
Traditional Conception: Mistake of law doesn’t excuse. Utilitarian Justification: Doing injustice to an
individual to promote larger social interests, Holmes.
Today: Very often an excuse to crim liability.
MPC 2.04: Ignorance or Mistake of Law or Fact
 MPC 2.04(1): Ig/mistake as to matter of fact/law is a defense if:
o The ig/mistake negates the purpose, knowledge, recklessness or neg req’d to establish a
material element of the offense, Regina v. Smith, or
o Law provides that the state of mind est’d by the ig or mistake constitutes a defense. Cheek.
 MPC 2.04(3): Consisted of belief that conduct didn’t legally constitute an offense. Elements:
o Objectively Reas Belief: Belief that reas person would form under the circumstances
o Formed on basis of certain limited grounds: Reliance on law, judicial decision or official interp
of law later held unconstitutional. Marrero. (NOTE: Doesn’t apply to advice of lawyer.)
Culpable Mistakes
 Marrero: Majority Approach. D carried gun b/c thought he could as peace officer, but term applied
only to state – not fed – cops. D argued his mistaken interp of statute was reas in view of wording.
o Issue: Does D’s reasonable personal misunderstanding of statute excuse?
o Holding: No, only if statute was later invalidated would one who mistakenly relied on it be
relieved of liability. [Eg: Law exempts me from using lawnmower. I use lawnmower and am
prosecuted. Ct says that exemption is invalid; I have a defense under the MPC.]
 To have a defense: D must show the statute permitted his conduct, not merely that he
believed it did. He needed to rely on an official statement afterward determined to be
erroneous. So if trial judge dismissed indictment and then he went again to a club w/ a
gun he would have a defense under MPC b/c got an official statement.
o Policy: Mistakes about the law would be encouraged; people would lie about their “good
faith” mistakes. Justice to individual is outweighed by greater good.
 Conflict b/w policy of blocking defenses we think criminals will abuse v. policy of
assuring justice and fairness to individual
o Dissent: B/c he wouldn’t have acted but-for his mistaken assumption as to the law, there’s no
need for punishment to deter him from further unlawful conduct. It’s wrong to punish someone
who, in good-faith reliance on a statute, believed that what he was doing was lawful. Since
more crimes today are mala prohibita, the fiction that every man is presumed to know the law
is now indefensible in fact or logic.
o Judicial Activism: NY law only req’d “reas belief” and not “later invalidated” language, but
ct says law was modeled after MPC so read in that req.
o Form of SL: Even though this is not an SL offense, this is another form of SL b/c didn’t have
the mens rea—D reasonably believed he wasn’t committing a crime.
 Compare: Mistakes of Fact
o Hypo: Marrero charged w/ carrying gun in his briefcase into nightclub, but he didn’t know it
was there b/c friend put it there. Statute: Carrying concealed weapon = 5 year penalty.
 Under MPC and principles of statutory construction judges will read in mens rea (at
least recklessness), so faultless mistake of fact would be exculpatory
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Exculpatory Mistakes – Penal Law (no excuse) v. Other Law (excuse)
o MPC 2.02(9): The proper arena for principle that ig of law doesn’t excuse is wrt penal law –
language that defines the offense itself. It’s knowledge of that law that’s normally not a part of the
crime so ig/mistake of that law isn’t an excuse, even if reasonable.
o MPC 2.04(1): Ig of law is defense if negates req’d mens rea to est material element of the offense
 RULE: If it’s honest mistake about material element, even if unreas, it’s about other law so
excused. If mistaken about penal law itself, even if reas, not exculpatory.
o As long as it’s other law and not the penal law itself, then it’s just like mistake of fact
which means some level of mens rea has to attach to the mistake of law (at least
recklessness) for culpability. Other Law: Gives meaning to terms in penal law
o Penal Law Mistakes: Background facts establishing D’s thinking are inadmissible.
o Reasonableness not req’d: Ig or mistake doesn’t need to be reas, b/c limiting it to reasness would violate 6th Am right to have jury determine guilt or innocence b/c would
allow judge to determine guilt or innocence as a matter of law
 Material Element: MPC 1.13(10). The harm sought to be prevented by the law defining the
offense. Since w/ theft, taking someone else’s property is the evil we’re trying to prevent,
that’s a material element. So then mens rea must be at least recklessness. So even if I made a
really stupid mistake that anyone else would know it’s not my property, that wouldn’t be
reckless b/c recklessness needs awareness (it would just be negligence).
 Woods: In bed w/ another woman’s husband & invalid divorce: That’s mistake about other
law; she made mistake about interstate recognition of divorces. Since statute silent about mens
rea, 2.02(3) says read in recklessness, so even if belief unreas, as long as honest, excused
whether mistaken belief results from fact or law.
o Regina v. Smith: D damaged wall to retrieve stereo wiring he earlier installed. Said I put the flooring
in, so I damaged my own property, not someone else’s.
 Holding: Exculpatory b/c honest mistake (even if unreas) that relates to a material element
(property of another) which requires a reckless mens rea (and all we have here is neg).
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Why Penal Law v. Other Law Distinction? Why not penal law mistake enough?
o Mistake of penal law suggests a moral failing while mistake of other law wouldn’t, but only
when the crime is mala in se. Criticism: With introduction of mala prohibita crimes, why
privilege penal law over other law? Should be mala in se v. mala prohibita.
o MPC Strikes a Compromise: Effort to protect fault principle by allowing defense for some
mistakes of law but not too broad a defense so as not to stifle prosecution. Making it too broad,
like Marrero dissent, would create legislative opposition.
Support for Mistake of Law Defenses: Kahan. Refusing to excuse even reas mistakes of law
discourages investment in legal knowledge; counters arg that to allow the excuse would encourage ig.
Will mistake of law excuse when actor thinks he’s doing an illegal act but turns out it’s legal?
o Taffy: Thought hidden packages contained currency and thought he was violating the law by
importing it, but it wouldn’t have been a crime to import currency. The package actually
contained pot. Holding: Not guilty b/c can only punish knowing importation of pot, and he
didn’t know.
o Doctrine: Just as mistake about penal law cannot exculpate you when it covers your conduct,
a mistake of law cannot inculpate when penal law doesn’t cover your conduct.
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Law Provides That The State Of Mind Est’d By The Ig Or Mistake Constitutes A Defense
 Cheek v. US: 2 claims of mistake of law. (1) I sincerely believed that under the tax laws I owed no
taxes. (2) Even if I did owe, these laws were unconstitutional.
o Statute: Requires fact-finder to find D violated law and knew it (“willful”). So statute implies
mistake of law is a defense b/c that would negate willfulness.
o Holding: The gen’l rule that ig/mistake of law is no defense to criminal prosecution is deeply
rooted b/c law is definite and knowable. Tax laws get special treatment b/c they’re complex;
only get convicted if you intentionally violated the law. But D is claiming the provisions of the
tax code are unconst; this isn’t from an innocent mistake, this shows full knowledge of
provision. D should’ve paid the tax and gone to ct if he disagreed.
 “Willfully” and “Knowingly”: Ig of law is a defense when the crime by its terms requires that a
person know of the existence of the prohibition 2.04(1)(b). Is that the case when statutes require that
the D commit the prohibited action knowingly and willingly? Controversy over whether their use
requires that the D be aware of the existence of the law he is charged w/ violating.
 2 ways to define willful: Intentional act (punishing someone who didn’t know law) OR intentional
act + knowingly violate law. If it’s defined in terms of the latter, ig/mistake of law will excuse.
o US v. International Minerals: Statute made it crime to knowingly violate X law. Instead of
needing to prove D knew of existence and meaning of law his actions violated (as Cheek held),
it sufficient to prove he did the actus reus (didn’t have to know it was legally forbidden).
 Bryan v. US: Even though there was no evidence he was aware of the law he was
convicted of violating, there was evidence he knew his conduct was illegal, so liable for
willfully violating the statute.
o Liparota, Ratzlaf: Opposite conclusion; had to prove D knew existence and meaning of law
D violated (like Cheek).
Other Ig of Law Claims – How requiring subjective culpability can often lead to uncomfortable results
Cultural Defense: Should law afford excuse to foreigners who violate law by actions acceptable (morally
and legally) in their native cultures but against the law? MANY cases mitigate or exculpate.
 Subjective Culpability Principle: Mens rea alone = level of punishment; individualized justice.
Reasonableness defined in terms of typicality; the reasonable racist. If stick to subjective culpability
principle, whether anti-Semite acts in Germany or here, we can’t condemn him, morally or legally.
 Jap mother drowning kids, then tries to kill herself. In Japan, parent-child suicide is customary. She
only spends one year in jail – the year she’s on trial.
 Chinese mother stabbed to death by husband. Chinese custom allows husbands to do this to unfaithful
wives. He’s acquitted of murder.
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Rape
What’s the harm in rape?
 Elements of rape stem from conceptions of its core harm. Jurisdictions are split on 2 perspectives:
o Crime of Violence: Like assault. If this is the harm, force req makes sense. Majority.
o Crime of Sexual Autonomy: Socially constructed, unlike harm in homicide, which is easy to
identify (a corpse). Whenever there’s a degree of pressure on the actor’s will so the actor isn’t
doing something she wants to do but is rather being compelled to do it, you’ve got rape,
depending on the gravity of the threat – as gravity of threat goes up, degree of pressure goes up
 Force Req: If freedom of sexual choice rather than physical protection is primary value
served by criminalizing rape, force isn’t so necessary, choice is. If no meaningful
choice, can find lack of consent b/c invaded personal, sexual autonomy. But force can
help establish bright-line rule for evidentiary purposes.
 Problem: Men often look at rape as a crime of violence, so they may think, I was just
seducing, not being violent,” and lack subjective awareness. A rape w/o a rapist.
Actus Reus
Two Approaches: Force Req & No Force Req
 Majority Elements: Force or threat of force (physical), lack of consent and sex. Crime of Violence
o Force: Beyond that which is incidental to sex; overcomes resistance
 Alston: Lack of consent unequivocal; pushed her legs apart. No rape b/c no force
(considered incidental to sex).
 Criticism of Force Rule: Estrich. No fight in Alston, so no force. Alston didn’t beat her,
at least not w/ his fists. He didn’t have to. She had been beaten, physically and
emotionally, long before. The force req allows men to intimidate women as long as
they don’t “fight” w/ them.
 Feminist Counter: Berger. Overprotecting women risks enfeebling instead of
empowering. Women should manifest their unwillingness in unmistakable way.
 Defense of Bright-line Force Req: Administrability. Allowing “force” to be broader
would make too many people rapists b/c harder for men to know.
o Lack of consent: Need proof of resistance or proof V failed to resist b/c of reasonable fear.
 Fear: Must be of physical harm and must be reasonably grounded to obviate need for
either proof of actual force or physical resistance. Rusk
 Criticism of Resistance Req: Absence of resistance doesn’t necessarily mean
consent; “frozen fright” may resemble cooperative behavior, but isn’t. Also,
different statistics show resisting may thwart rape or suffer increased violence.
 Valuing Property over Autonomy: The law doesn’t expect risking injury by
resisting robbery, kidnapping or assault…so why in rape?
 State v. Rusk: Dropped R off at home; he took her keys; went up to his apartment.
o Statute: Sex by force or threat of force against will and w/o consent.
o Resistance: Read-in; Shows lack or presence of consent and establishes force.
 Reasonableness: Don’t have to resist if you reasonably fear for your
safety. So if D knew you were genuinely fearful but jury would see it as
a silly fear, no rape. (Have sex w/ me or else innocuous spiders on you.
And she has arachnophobia. Not rape b/c not reasonable.)
 Emphasis on P: Emphasis shifts from behavior of D to that of
victim. Reasonableness of her reaction.
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

NOTE: At least one court has held that a conviction can be
sustained when V’s fear is unreasonable but assailant knew of
the fear and exploited it.
 Verbal resistance isn’t enough: Has to be physical
 Warren: D carried girl into woods and had sex; she didn’t fight
back so not guilty. This is the problem w/ the force req.
o Holding: Conviction for second degree rape.
 2nd Degree Rape: By force or threat of force against will and w/o
consent of P
 1st Degree Rape: D uses deadly weapon, inflicts or threatens
“suffocation, strangulation, disfigurement or serious physical injury.”
o Dissent: Whether P’s fear is reasonable is an issue only after determine the D’s
conduct was objectively and reasonably calculated to give rise to fear so that
she was unable to resist. She must follow the natural instinct of every proud
female to resist, by more than mere words. This was ordinary seduction.
Nonphysical Threats: “If you don’t have sex w/ me I’ll fire you” is not a threat of
physical force so it’s not rape, even if no consent.
 Thompson: HS principal said have sex w/ me or you don’t graduate. No
conviction b/c force doesn’t include intimidation or fear.
o BUT “Give me $100 or you won’t graduate”  criminal extortion
 Mlinarich: Victim had sex w/ D after he threatened to send her back to
detention home. No rape even though threatened b/c no physical force.
Grading: Differences in outcome in many states (pregnancy, STD) determine punishment. Thus,
punishment turns on fortuity and not subjective culpability b/c the mens rea is the same.
o Lesser wrong, Greater wrong: Too bad she’s pregnant, you were wrong in the first place.
 Just Deserts: When 2 actors have same mens rea, can’t justify punishing them on basis
of 2 different fortuitous results (pregnancy or not); Need to punish them equally.
o MPC: Permits conviction for “gross sexual imposition” when submission is compelled by
threat of force or by any threat that would prevent resistance by a “proud” woman.
Deception: Prevailing view -- there can be no rape which is achieved by fraud or deception.
 Evans: Psychologist brought her to apartment for “social study.” For him b/c he didn’t threaten her
and didn’t use force. Same result in Boro (doctor, sex to cure you for $4500).
 Property Interest v. Sexual Autonomy Interest: Person who uses false material representations to
obtain tangible property is universally held guilty of theft or fraud. Yet there is generally neither civil
nor criminal liability when false representations are used to obtain sex.
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Eliminating the Force/Resistance Requirement
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MTS: Statute needs physical force or coercion. Ct finds that’s satisfied anytime have non-consensual
sex. Resistance is unnecessary  Judicial Activism. Provides max protection for victims.
o Consent: Given thru words or actions that would demonstrate to reas person affirmative and
freely given authorization. – Jury needs to decide what’s “freely given.”
 Prosecutor: Prove she either said no or didn’t say yes w/ conduct or words. If she was
ambivalent or wavering, that’s enough to show lack of consent.
o Focus on D’s Acts: Want to eliminate burden placed on Vs to prove they hadn’t consented.
Criticisms
o Too far – Berger. Let women at least express unwillingness; enfeebling/patronizing women.
o Not far enough: Guy can misread her body language and say I made a reas mistake
 Schulhofer: Rape is an offense against autonomy. Nonconsent is anything that’s not
positive consent. Treating her as victim is not patronizing. It’s merely recognizing an
obvious violation of the physical autonomy of her person.
Nonconsent: In states that have eliminated force req, sex is criminal whenever consent is absent. But
if resistance is unnecessary, what should P have to prove?
o Verbal resistance (saying no) plus other behavior that makes unwillingness clear
o Verbal resistance alone (no always means no)
o Verbal resistance or passivity, silence or ambivalence (anything other than affirmative
permission by words or conduct) (MTS)
o The absence of verbal permission (not saying yes)
Other Modern Trends: If the evil you seek to avert is invasion of the victim’s interest in sexual
autonomy — then other kinds of assertions of power can violate that interest.
o Legit and Illegit Assertions of Power: Instead of distinguishing b/w physical and nonphysical force, distinguish b/w assertions of power that are legit and those that are illegit.
 Lovely: Conviction upheld b/c P pressured man to submit to sex by threatening to stop
paying his rent. Statute made it crime to coerce submission to sex by threatening to
retaliate against the victim.
 Chamallas: Anytime you’re flexing your economic muscle to get what you want, that’s
an illegal assertion of power.
 Legally and socially constructing contours of legit consent: Illegit assertions are nonconsensual, legit assertions are consensual, so consent isn’t doing any work of its own.
o Forcible compulsion includes more than sheer force: Includes physical, psychological,
emotional force, either express or implied, to compel person to act against his volition.
 Meadows: Rape when D aware victim had crush on him and took advantage of her.
Criticism of Expanding Force to Account for Sexual Autonomy
o Schulhofer: Central component of autonomy is to seek intimacy w/ persons of our own
choosing. Equally important is freedom to move on when not fulfilled. “Do it tonight or pack
your bags” surely deserves criticism but shouldn’t inevitably violate legal rights.
o W/ relaxed force requirement, since no often means yes, aren’t we sacrificing innocent Ds to
protect autonomy of innocent victims? This creates rapes w/o rapists.
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Mens Rea


Problem: Men who think the harm in rape is sexual assault may not have the mens rea of wrongdoing
b/c they may think they’re just being seducers. Link to cultural defense – His behavior was typical for
his particular subgroup; if he has no awareness, how can we punish? Just Deserts
Reasonable Person Std: I should be excused if I make mistake another person would’ve made
o Should the law accommodate all the established norms of society? Or take an instrumentalist
approach and channel behavior?
 Subjective awareness of wrongdoing: D must be subjectively aware as to existence of
consent; can avoid liability by showing his lack of awareness was typical (reasonable).
If he can make that claim, he can escape even negligence liability.
 Channeling: Would violate “typicality” b/c many Ds didn’t think they were doing
anything wrong  no means yes
SL, Negligence, Recklessness or Knowledge? Raises instrumental, non-instrumental conflict.
Mistake of Fact: Consent is an attendant circumstance
 Majority: Mens Rea = (Gross) Neg  Permit MOF defense only when D’s mistake re consent was
honest and reas to counteract fact that resistance req has been diluted. So even if actor wasn’t aware
of any wrongdoing, if his mistake is unreas b/c reas person would’ve known, he’s criminally liable.
o Sherry: Three Ds charged w/ rape; took her to vacation home. Ds said they didn’t know it was
non-consensual. Jury found force and no consent; mistake unreas; held for P.
 D argues she needed to clearly express her unwillingness so that I would’ve had
knowledge of her non-consent, otherwise it’s SL. (This is accepted in some
jurisdictions, but not here. Not in MTS either, where had to express her willingness.)
 Rule: Neg is enough, and “reasonable person” is not very individualized.
o Support for Neg: Estrich. Man who has capacity to act reasonably but fails to has made a
blameworthy choice for which he can justly be punished.
o Criticisms of Neg
 Misinterpreting “reasonableness”: Men often see aggressive behavior as seduction
rather than rape, even when she says no. Ds would then say most men think no means
yes, so this was a reas mistake. Allowing this false belief to be “reasonable” sacrifices
innocent victims who meant no. Possible solution would be to mandate an affirmative
expression of consent (non-consent is anything other than that).
 Stanko: We often divide male aggressiveness as typical or aberrant (catcalls are ok,
forcing sex isn’t). But what gets lost is that many women see this “typical behavior” as
threatening and get quiet.
 MacKinnon: Adopting a neg std w/o asking to whom the belief is reasonable is onesided: male-sided.
o Mens Rea Irrelevant – Schulhofer: Neg std doesn’t matter. Take Sherry; at the least, Ds
were aware she might not be consenting, so they were subjectively culpable and would be
convicted whether or not we insist on neg. Mens rea is not as important as how exactly we
define consent. Giving jurors reasonableness std is too vague.
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
Minority: Instrumentalist Approach  “No means no”
o SL: Even an honest and reasonable mistake (non-negligent) isn’t exculpatory, Ascolillo.
 Statutory Rape — Simcock: Belief that V consented is not a defense, even if reas.
Spawn of Prince grabbing mala in se crime, saying D in statutory rape isn’t entitled to
instruction that reas mistake as to V’s age is a defense – underlying conduct is itself
morally wrong, so any mistakes of fact don’t matter.
 Fischer: Dorm room. P said no repeatedly but thought no meant yes.
 B/c he used physical force, SL. As to mens rea, jury found D’s belief was not
atypical, but reas MOF isn’t defense
 POLICY: If we allow prevailing attitudes which say “no means yes” to exculpate, we
are diluting effect and significance of consent and perpetuating these attitudes.
 Instrumentalist: Change behavior to promote important social ends; make men
make sure they have consent. If you want to make “no mean no” but typical
belief is “no means yes,” only option w/ mens rea is to impose SL.
 Culpability Principle: Condemning subjectively innocent people.
 Choice of Innocence Problem: There are innocent Ds we sacrifice when we
apply SL, but reas-ness std sacrifices innocent Vs who meant NO.
o Recklessness – Reynolds: Req’d proof of recklessness to convict b/c force/resistance req has
been diluted which has increased risk that jury will convict under circumstances where lack of
consent was ambiguous – he really wasn’t aware.
 MPC, Choice theory: Unless actor chooses to do wrong, no liability.
 Counter: Lack of awareness itself shows culpability.
Other Crimes: Knowledge Req’d
 Kelly: D removed mantels after guy who he thought owned the house told him to. Ct acquitted b/c
one who takes honestly thinking he can (even if unreas) isn’t guilty of larceny; any honest mistake is
exculpatory b/c knowledge is the requisite level of culpability.
o Compare w/ Rape: So if knowledge of owner’s nonconsent is req’d for larceny, why
shouldn’t actual knowledge of woman’s nonconsent be req’d for rape? By requiring proof of
less fault, seems like we’re protecting sexual autonomy interests more than property interests.
Statutory Solutions: Schulhofer’s Proposed Model Statute
 Grading: Sexual assault is more aggravated form of sexual abuse, so grade them.
o Sexual assault: Physical force or threat, or if the person is under 13.
o Aggravated sexual assault: Physical force or threat w/ a weapon.
o Sexual abuse: Has sex knowing he doesn’t have consent, which must be affirmative and freely
given. (Imports mens rea b/c don’t have force req)
o Mens rea: If knowledge is req’d to convict of sexual assault or abuse, recklessness will suffice,
(awareness of substantial and unjustifiable risk), as will criminal neg (failure to appreciate risk
was a gross deviation of care reas person would give – flirts w/ SL.)
o Harm: Mixture of rape as act of violence and rape as incursion on sexual autonomy.
o If there’s force (bad act), don’t even care about mens rea: you’re liable.
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REFORM EFFORTS
 Stanko: There’s an effort to get evidence of women’s sexual history on the stand to prove there was
consent. This evidence has a prejudicial effect: lower estimation of woman in the eyes of the jury.
Shield Laws: Nearly all Js have enacted “rape shield laws” to limit the admissibility of evidence bearing
on a rape complainant’s prior sexual behavior.


Estrich: Today’s debate is about when women should be believed, and about what we need to know
about her before we decide to believe her.
Tough Balance: Admit evidence relevant to D’s innocence (it’s often their only chance to raise reas
doubt) and harm V, or exclude it to promote social interests but risk inculpating an innocent.
General Evidence Rules: Evidence is inadmissible if it’s irrelevant. Relevant = probative and material.
 Probative = A proposition is more likely to be true given the evidence than it would be w/o the
evidence.
 Material: The proposition the evidence tends to prove is one that will affect the case’s outcome
 Exclusionary Rule: Evidence must be excluded whenever its probative value is outweighed by its
prejudicial effect -- when the jury is likely to overestimate the probative value of the evidence or if the
evidence will arouse undue hostility toward one of the parties.
Prior Behavior of D
 Evidence of prior misconduct: Inadmissible for purposes of proving a propensity to engage in conduct
of a similar nature. Can’t bring in past evidence to show bad character.
o Justification: D shouldn’t be forever obliged to explain prior transgressions.
o Exceptions: As in if victim of homicide previously saw D rob someone; admissible not to
show the D was disposed to violence but rather to show his motive for the killing.
 Evidence of prior sex crimes: Admitted when evidence passes req that its prejudicial effect not
outweigh its probative value. Usual rule in rape trials: Exclude prior misconduct.
o Baker: Rapists are less likely to repeat their crimes than other criminals who we don’t let in
prior evidence for.
Prior Behavior of P
 Justification for excluding evidence of prior sexual history: Probative value is outweighed by the
prejudicial effect of getting it before the fact-finder b/c:
o Intrinsic Effects: Its value may be overestimated by the jury; stirs prejudices and confuses the
issues. Just b/c she consented then doesn’t mean she consented now.
o Extrinsic Effects: Can be embarrassing to victim, deterring others from seeking prosecution.
 Pope: Before, allowed evidence of women’s sexual history to show if she was a ho, she’s a ho now.
Now, reference to prior unchaste acts injects collateral issues into the case which divert the jury’s
attention from the real issue  the guilt or innocence of the accused.
o Some admission: There are certain limited situations where evidence of prior unchaste acts has
such probative value to outweigh its inflammatory effect and require admission, including
evidence of prior consensual sex with the D or testimony that refutes physical evidence, such
as the victim’s alleged loss of virginity, or making unsubstantiated rape charges in the past.
o Rule, Rape Shield: Hearing should be held by ct outside presence of jury; if D shows credible
evidence falls into one of the above exceptions, TC should allow its admission.
o Holding: V shouldn’t be expected to come prepared to defend every incident of past life.
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
o Did the ct go far enough in Pope? How to justify exception even for evidence of prior
consensual sex w/ D? So what that she consented then…doesn’t mean she consented now.
Neeley: P, white, said she was raped; D, black, said I didn’t even see you that day. P had evidence of
black person’s hair in her cervix. D offered to prove that before the rape, P had sex w/ her black
boyfriend. Denied admission.
o Restrictive Rape Shield: Allow evidence in when it explains presence of “semen, pregnancy,
disease or physical injury.” Since it was a hair, ct said it didn’t meet the exception.
o Makes him look guilty even though his guilt is actually very questionable.
Eroding the Rape Shield



Constitution’s Confrontation Clause: 6th Am asserts a primary interest is secured by cross-exam,
which is the principal means by which the believability of a witness and the truth of her testimony is
tested.
DeLawder: D wanted to get in evidence of P’s prior sexual history to show that when she had sex w/
D she thought she was pregnant and claimed D raped her b/c she was afraid to tell her mom she had
voluntary sex w/ others. Holding: The desirability that the P testify free from embarrassment must fall
before the right of an accused to seek out the truth in the process of defending himself.
Many courts have held that restrictive rape shield laws are unconst when they bar use of relevant
sexual history evidence. Some cts have avoided striking down their rape shield statutes by reading in a
“catchall” exception for any evidence needed to preserve the D’s right to a fair trial.
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Homicide
The killing of a human being by a human being – Murder, Manslaughter, Suicide, Infanticide.
Intentional, Unlawful Killing
1. Common Law Murder: Unlawful killing (actus reas) w/ malice aforethought (mens rea).
 Malice aforethought: May be express or implied.
o Express: Manifested deliberate intention unlawfully to take away the life of a human being.
o Implied: No considerable provocation appears, or when the circumstances attending the killing
show an abandoned and malignant heart.
o Burden of Proof:
 Where malice is a definitional element: P has to prove absence of HOP/EED/provocation
 Where malice isn’t a definitional element – Patterson: D has to prove absence of malice —
HOP/EED/provocation — by preponderance of evidence to get mitigation to manslaughter.
 Degrees of Murder
o First Degree: Premeditated killing, or which is committed in attempt to perpetrate arson, rape,
robbery, kidnapping.
o Second Degree: All other murders.
o Purpose: Wanted to limit the number of people being executed for murder b/c at the time, death
was mandatory upon conviction of murder, since not all killings are equally deserving of death.
Manslaughter: Unlawful killing of a human being w/o malice aforethought. HOP. No death penalty.
2. MPC Approach to Murder: 210.2. Purposely or knowingly kill human (intentional), or, recklessly
kill under circumstances manifesting extreme indifference to human life (wicked heart—unintentional).
Premeditation: Raises to 1st Degree
One Approach: Largely erases distinction b/w first and second degree murder.
 Carroll: D pleaded guilty to murdering wife. Arguing in bed, her back to him, he reached for gun on
window sill and shot her twice. Says he was dozing off, doesn’t remember his hand move toward gun.
o Premeditation: D argues there was insufficient time for premeditation; I didn’t deliberate on
my intent. Ct says whether the premeditation and the fatal act were w/in a brief or long space
of time is immaterial if the killing was intentional. Whenever there’s intent, there’s premed.
o Expert testimony: Showed little possibility of premeditation; rather, impulsive reflex.
o Holding: First degree murder. Provoked by wife, but remembered gun, deliberately took it
down, and fired 2 shots into sleeping wife.
 Judicial Activism: Ct basically rewrites premed req and gets rid of it.
o Rationale: Society would be almost completely unprotected from criminals if the law
permitted an irresistible impulse to control one’s self to excuse or justify a murder or reduce it
from first degree to second degree.
 Rebuttal: Society won’t really be unprotected b/c we’re still punishing the defendant,
just a matter of how much.
 Young: Ct upheld conviction for first-degree murder stressing that no appreciable space of time b/w
the formation of the intention to kill and act of killing was req’d; premed and deliberation may be
formed while killer is pressing the trigger.
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Another Approach: Gap in time b/w premeditation and killing
 Guthrie: There must be some time period b/w the formation of the intent to kill and the actual killing.
Accused must kill purposely after contemplating the intent to kill.
o Rationale: To allow the state to prove premeditation and deliberation by only showing that the
intention came “into existence for the first time at the time of such killing” completely
eliminates the distinction b/w 1st and 2nd degree murder.
 Refuse to rewrite the legislature’s law on premed.
o Proof of Premeditation: Jury must consider several factors: plan to kill, evidence of prior
relationship to reveal a motive, and manner of the killing.
 Problems w/ this Approach: Guthrie raises issue: Does the premeditation req reliably distinguish
b/w the most culpable murders and the somewhat less culpable murders, which is what 1st and 2nd
degree murder is supposed to do? Not always:
o Anderson: D killed friend’s daughter by stabbing 60 times. Ct found no evidence of firstdegree murder b/c no premeditation or deliberation evidence: no planning, nothing in prior
relationship b/w D and V revealed motive, and the manner of the killing by multiple knife
wounds suggested explosion of violence rather than preconceived design to kill.
o Forrest: D drove to hospital and killed terminally ill dad to put him out of misery. Convicted
of first degree murder b/c had time to contemplate.
MPC (and other states) Legislative Approach: Premed isn’t dispositive.
 Reject premed and deliberation as basis for identifying murders that deserve the greatest punishment.
 The case for a mitigated sentence on conviction of murder doesn’t depend on distinction b/w impulse
and deliberation. Fact of long internal struggle may be evidence that the homicidal impulse was
aberrational and product of extraordinary circumstances. Or, the suddenness of the killing may simply
reveal callousness so complete that no hesitation is req’d.
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Provocation: Mitigation to manslaughter
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

Partial Excuse: Mitigates murder to voluntary manslaughter. NOT that reas person would’ve acted
same way (that would be excuse). Rather, reas person would’ve been sorely tested. (SEE Page XX)
o Choice Theorist Arg: Usually see bad act and automatically think: bad actor. But under
EED/HOP, not the case b/c human frailty – less culpable. Your powers of choice were so
diminished when you crossed this threshold that we have a hard time saying you made a
meaningful choice. Actor’s values and character are irrelevant; it’s all about choice.
o Normative Arg: To hold someone culpable for murder, the act should reflect the actor’s true
character. If it doesn’t, and instead is an aberration brought about by the circumstances (divided
true self from agitated self), we’ll mitigate.
o Vs. Partial Justification: The act was partly right; “didn’t the victim deserve it?” Easier to see
provocation as PE b/c w/ PJ, we’re basically holding the victim SL, even if he didn’t deserve it.
EED, HOP, provocation negate finding malice aforethought. ALSO, in MPC Js where malice isn’t
req’d, can show these to mitigate murder to manslaughter.
o HOP v. EED: HOP requires provocation and no cooling-off period. EED is brought about by a
significant mental trauma that caused the D to brood for a long period of time and then react
violently, seemingly w/o provocation.
Rules v. Standards
o Rule-Driven: Girouard. Have to fit w/in these categories to get the defense; very clear guidance
to judge as to how to exercise his discretion.
 Example: Can’t drive more than 55 mph here. Only ask one Q: were you going over 55?
o Std-Driven: Casassa. Normative Q: Would reas person’s self-control be sorely tested? Strong
jury role. Example: Don’t drive unreasly; “malice.” Q: Were you unreas? Tough Q for jury.
1. Traditional Common Law Approach to HOP/Provocation: Subjective + Category Fit
 Girourd: Husband killed wife; wife verbally abusive, “what are you gonna do?” Stabbed her w/ knife
19 times, then slit his wrists. Said how much he loved her.
o Holding: The provocation here was not adequate to mitigate second degree murder to voluntary
manslaughter. Words, even “fighting words,” alone are not adequate provocation.
o Rule: Provocation mitigates murder to manslaughter only when D’s reason was overcome by
passions (subjective) AND what provoked him was assault or battery on him; mutual combat;
D’s illegal arrest; injury or serious abuse of D’s close relative; sudden discovery of adultery.
 No Individualized Justice: This std doesn’t focus on peculiar frailties of D’s mind.
 Not-Words Policy: If guy tells you I abused your nephew, can’t fight him b/c those are
just words. Why the cut off for words? Because if you walk in on them you can stop them,
but not the same w/ words. And, we could never expect an ordinary person to stand by and
watch this happen. Concession to human frailty means we allow for loss of control when
people are confronted w/ circumstances that would test the self control of ordinary person
w/ ordinary human frailty.
 Rebuttal: If point of mitigation is that somehow your act didn’t reflect the true you, why
not get a mitigation whenever passion overwhelms your reason?
o Judge as Gatekeeper: This substantive rule tells the judge when to let your provocation claim
go to the jury. Here, jury doesn’t get to hear at all about the provocation.
 Filtering role applies to nature and gravity of provoking circumstances AND question of
whether there was sufficient cooling time. If too much cooling time, judge as matter of
law will deny both instruction and info into evidence.
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

Legislature + Judge + Jury: How the substantive rules channel decision-making power;
struggle b/w judge and jury here.
Cooling Time: Common law view is that too long a lapse of time b/w provocation and killing will
render provocation inadequate as a matter of law. Need instant excitement. Bordeaux.
o Rekindling Exception: When argue the event immediately preceding the homicide rekindled
the earlier provocation. Many cts still refuse.
 Gounagias: Committed sodomy then bragged for 2 weeks; D killed him. Ct held NO;
interval was adequate cooling time, no instruction.
 Berry: Provoked D waited in car for 20 hrs before killing her. Ct allowed instruction b/c
jury could find D’s HOP a result of a long-time previous provocation by victim, and the
passage of time served to aggravate and not cool D’s agitation.
2. Standard Approach to HOP/Provocation: Human Frailty. No categories.
 Maher: D approached P, said something and shot him in head. D offered evidence to show he did so
b/c adultery b/w his wife and P less than hour before assault; he saw them go to woods together.
o Holding: Evidence sufficient to go to jury; looks like HOP  manslaughter.
 NOTE: Under Girouard’s categorical approach, this evidence wouldn’t get to jury b/c
mere words. Jury would only hear how he walked in and shot the guy.
o Manslaughter: If the intentional killing is committed under influence of passion, produced by
adequate or reasonable provocation rather than of any wickedness of heart, and before a
reasonable time has elapsed for reason to resume its habitual control, the law, out of indulgence
to human nature regards the offense as less heinous than murder—manslaughter.
 Not that reasonable person would kill, but that they’re more liable to act irrationally.
o Typicality Test: Prove there was subjective HOP (actually experienced EED) AND a reas
person would’ve experienced EED too (objective). Blame is reserved only for the deviant.
 Reasonableness criterion is window/index of actor’s subjective culpability: You’re only
subjectively culpable if did something bad that differentiates you from ordinary person
under those circumstances. Since our inquiry is about culpability, ordinariness is working
as evidence of that. (This test is individualized like Casassa).
o More Active Jury Role: Exclude evidence when the provocation wouldn’t provoke an ordinary
man; but if evidence suggests reas minds could differ, let it go to jury (Sufficiency Review). Jury
determines whether provoking circumstances and lack of cooling time are adequate. But
MAJORITY of cts still have judges decide cooling time issue, as in Bordeaux.
3. MPC Approach: Broadest approach – EED. No categories or even provocation; can have cooling time
 Distinguish
o Provocation: Victim has done something to incite the D.
o EED: D has some deficiency that was induced by external factors beyond his control and made
him susceptible to overreacting (wrongfully).
 Casassa: V not in love w/ D; D had extreme emo disturb b/c of this.
o Expansion of HOP Doctrine: Cooling off period doesn’t negate mitigation, and words alone
CAN amount to adequate provocation. Just ask whether stimulus caused D to lose control.
o Two-Part Test
 Subjective: D acted under influence of EED (Not lying). Pure factual inquiry.
 Objective: There was a reas explanation/excuse for the EED, the reasonableness of which
is to be determined from the viewpoint of a person in the D’s situation under the external
circumstances as D believes them to be.
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
o Individualized test of reasonableness: Compare you to ordinary person drawn from D’s
subgroup (vs. purely objective std). Consider personal handicaps and some external
circumstances like extreme grief. BUT, idiosyncratic moral values are not part of the actor’s
“situation.” An assassin who kills a political leader b/c he believes it is right to do so can’t ask
that he be judged by std of reas extremist. Any other result would undermine the normative
message of the criminal law.
o Holding: 2nd degree murder affirmed even though EED clear. Too peculiar to this D.
o Jury Function: Like Maher, if judge thinks reas minds can differ, goes to jury.
Elliot: D suffered yrs of fear of brother, one day for no reason killed him. Ct said EED instructions
were necessary b/c “the defense doesn’t require a provoking event. D just had to prove the hot blood
hadn’t cooled off at the time of the killing. Murder influenced by EED is not only committed in hot
blood stage but also when significant mental trauma caused D to brood for long time and then react
violently, even w/o provocation.
More on Reasonable Person Req
 Age and Gender – Camplin, 15, sodomized; D killed him w/ pan. Ct allowed jury instruction that std
of self-control to be demanded of “the reas man” is that of a person of the sex and age of the D.
o Does this mean boys have less self-control than girls? Age is relevant, b/c young people are
usually more impulsive, but why gender? How normative is that?
 Culture: One side – this provocation is more exaggerated for foreigner than US citizen, but other side
– more approp to hold such a D to stds of self-control our society expects Americans to exercise.
 Mental Disorder: Depression not allowed an individualized std.
 Impotence: Not allowed to individualize.
 Choice Theorist Critique of ARP Std: Why have reasonableness req at all? Why not just look to
whether person had power to choose and it wasn’t compromised? Mens rea and actus reas have to be
concurrent; I didn’t have a choice, so it wasn’t concurrent. How responsible am I for the influences in
my life that made me a homophobe? Rebuttals:
o (1) Character Approach to Crim Responsibility: Bad act, bad actor. Hume, MPC drafters – when
blame people, we’re really judging their character/disposition, not their will or awareness.
o (2) Homophobe should’ve chosen to engage in critical self-revision when he was provoked; he
DID have a choice
 Homosexual advances: Some courts allow provocation to killing, some don’t.
o From stdpoint of D, may be unfair to evaluate this on objective std: If point is to punish people
who make evil choices (and my choosing wits weren’t about me), why are you punishing me,
the homophobe, more than the husband of the cheating spouse? Are you judging my freedom of
choice or my values? Seems like the latter.
 Beauty of conscious awareness/choice model: Never ask about biases of juries and their
values; just look for actus reas and awareness of committing crime (not judging character).
BUT, to stick to culpability principle could mean to mitigate a Nazi since he didn’t know.
So reas person std comes in and says we get to impose our social norms on your
exculpation claim in spite of your lack of subjective culpability for greater good.
 Summary: Once you start down the road to individualizing the D’s characteristics there is no
satisfactory stopping place. As long as we have reasonable person std playing role in assessing
criminal liability, these Qs keep coming up.
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Rationales for Provocation Defense
 Provocation as Partial Excuse, Majority: Act was unjustified, but should mitigate anyway b/c focus
is on actor and human frailty; actus reas but no culpable mens rea. Applies to actor’s lack of selfcontrol b/c of the situation in which he was placed rather than any deficiency in his character.
o This std doesn’t imply that reas people kill (if that were the case, there’d be a complete defense),
but rather that the more sorely tested an ordinary man would be to kill under the circumstances,
the less does this D’s succumbing differentiate his character from theirs.
 Hypo: Person comes at me w/ what I, and reas person, think is a gun (it’s not). I kill. I am
not justified, but rather am excused b/c ordinary person would make this mistake.
o Normative arg: To hold someone culpable for murder, the act should reflect the actor’s true
character. If it doesn’t, and instead is an aberration brought about by the circumstances (dividing
their true self from agitated self), mitigate. If can attribute it entirely to their character, don’t mit.
 Rebuttal: Reasonable people do not kill no matter how much they are provoked.
o Easier to see provocation defense as partial excuse than partial justification: Hard to argue
you’re ever justified in killing someone.
 Provocation as Partial Justification, Minority: Act was justified, desirable – benefits > costs. Eg:
killing in self-defense when attacker was trying to kill me.
o Victim Culpability Req’d: An individual is to some extent morally justified in killing someone
who intentionally provoked him (a wrongdoer himself), and this differentiates someone who is
provoked and kills, from someone who isn’t provoked. Consider V’s complicity (V’s desert).
 Dressler: The V in no way jeopardized D’s life. V’s immoral conduct shouldn’t make his
life less deserving of protection. In adultery cases, basically holding victim SL for sleeping
w/ woman (what if he didn’t even know she was married?)
o Inapplicable to Killing Innocent People: If this is the rationale for provocation mitigation, there
should be no claim raised when killing innocent (but there have been such claims made). Better
to say I thought I was justified but I made a mistake; my mistake is an excuse.
Innocent V’s and Culpable D’s
 Victims Other Than Provoker: Mauricio, D mistook patron for bouncer and shot him. NJ SC said
voluntary manslaughter instructions should’ve been given to jury. Several states uphold this view.
o Partial Justification claim ABSENT: No justification here. Only partial excuse.
 D’s who elicit provocation: Johnson, D made threatening comments to V, V punched him, D stabbed
her. Ct allowed provocation defense.
o But some statutes disallow provocation defense when D induced the provocation.
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Unintentional Homicide
4 Approaches to Unintentional Unlawful Homicide
1. Murder: With MALICE – Wicked heart; reckless, wanton disregard of humans. 2nd Degree.
a. Malone: D wanted to play Russian Poker; earlier, he put bullet in gun. Said he didn’t expect it
to go off, had no intention of harming V.
i.
Holding: 2nd degree murder b/c no specific intent to take life, but killing here resulted
from intentional act w/ reckless and wanton disregard of consequences.
ii.
Malice: Implied from wicked disposition; callous disregard of act’s likely harmful
effects on others. He was as culpable as someone who acted intentionally.
b. MPC: Unintended killing = murder when it’s committed recklessly and under circumstances
manifesting extreme indifference to human life. (Ordinary reck-ness = manslaughter).
c. Fleming: Speeding, hit P’s car. DUI. Claims no murder b/c inadvertent risk creation – I was
drunk, no malice. Holding: 2nd degree murder affirmed.
i. Diff b/w malice, which will support conviction for murder, and gross neg, which will
permit only manslaughter is one of degree rather than kind. Here, drove in way that
indicated depraved disregard of human life.
2. Manslaughter: Unintentional homicide committed w/o excuse, justification or malice.
a. MPC 210.3: Recklessly kill, or, a homicide which would otherwise be murder is committed
under influence of EED for which there is reasonable explanation or excuse, determined from
viewpoint of person in actor’s situation.
b. Requires Recklessness (no longer criminal neg)
o Criminal Negligence
 Barnett: Conduct of the accused must be such a departure from what would be
the conduct of an ordinarily prudent man under the same circumstances as to be
incompatible w/ a proper regard for human life, or conduct amounting to
indifference to consequences. Jury decides.
o Criminal liability on the basis of civil neg results in over-deterrence: Danger of
liability for unintentional harm is it will over-deter conduct.
c. Distinguish
o Inadvertence: Lack of awareness; didn’t even cross your mind you were imposing risk
o Unintentional: Not necessarily lack of awareness, just it’s not your purpose to bring about
harm (Eg: Speeding but don’t want to harm anyone).
d. Old Approach: Confuses Criminal (Gross) Neg w/ Recklessness – No longer accepted
o Welansky: Accidental fire in Coconut Grove. Owner not aware of risk of injury.
Involuntary manslaughter = death thru wanton or reckless conduct b/c of over-crowding,
installing flammable décor.
 Wanton or Reckless Conduct Test: Grave danger to others must have been
apparent and D must have chosen to run the risk rather than alter his conduct so as to
avoid the act or omission which caused the harm.
o Exception – D knows: If D knew about the danger, his voluntary act or
omission which caused the harm amounts to wanton or reckless conduct no
matter whether the ordinary man would’ve realized the gravity of the danger or
not. (Heartlessness in risk creation – character inference)
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o Exception – Reas Person Would Know: Even if this particular D wasn’t
aware of the danger, he can’t escape liability if ordinary man would’ve been
aware. (This eliminates the distinction b/w recklessness and neg.)
 Holding: To convict D of manslaughter, don’t need to prove he caused fire by
wanton or reckless conduct; enough to prove that death resulted from wanton or
reckless disregard of safety of patrons in event of fire from any cause.
 Fact-finder: Handing case to jury to decide whether act was grossly unreas. Words
like wanton and willful aren’t very helpful to focus fact-finder on the issue; these
words are malleable and value-laden.
 Choice-Theorists: Mens rea is eliminated when hold people liable for inadvertence
and lack of awareness.
 Non-Choice Theorists: May lack awareness of risk-creation, but that very lack of
awareness indicates a culpable inner state. Support imposing criminal liability in the
absence of awareness.
o Williams: Didn’t want to take sick baby to doctor b/c afraid would take him away;
didn’t understand the seriousness of the symptoms.
 Law: Involuntary manslaughter satisfied thru ordinary negfailure to exercise
ordinary caution – the kind that a man of reas prudence would exercise under similar
circumstances.
 Holding: Ct could find, applying std of ordinary caution, Ds were sufficiently put on
notice concerning the symptoms of the illness to have req’d them to have gone to a
doctor. Failure to do so is neg, which supports conviction.
e. MPC Approach – Manslaughter Requires Recklessness; Neg Homicide requires Neg
1. Recklessness, 210.3 = Conscious disregard of substantial and unjustifiable risk
2. Negligent Homicide, 210.4 = Punishment for lack of awareness of excessive risk.
o Purpose: When people know that punishment may follow conduct that
inadvertently creates excessive risk, they have add’l motive to be careful. Moral
defect can be imputed to instances where D acts out of insensitivity to interests of
other people. Example: Didn’t know the bullet was in there
3. For Reck and Neg, 2 inquiries – Reas Person Std figures decisively – Jury Critical,
looking for difference b/w gross neg and crim neg
o Focused on conduct: Justification. Actus Reas.
 Substantial and unjustifiable risk. Weigh magnitude of risk to which others
are exposed against its alleged justification. Eg. Speeding to hospital.
 If conduct/risk was justified, that’s the end of the inquiry. You’re justified.
 If conduct/risk was unjustified, then go to mens rea
o Focused on subjective culpability of the actor: Excuse. Mens Rea.
 Would a reas person in situation of D have run that risk? Only get to this
claim after determined conduct was unjustifiable (there was excessive risk).
o No blame: Can understand how someone running for her life could
have her judgment distorted and do something that’s not cost-justified
like run a red light. She should be excused for an unjustified act. She’s
not unreasonable, then, for engaging in that act b/c we all share human
frailty—can’t condemn me for being frail, just like you.
o Blame: If you think I’m too frail, I probably won’t get the excuse.
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4. MPC and Individualization of ARP: Rejects fully individualized std, but allows
some w/ “the care that would be exercised by a reas person in the actor’s situation.”
o “Situation”: The Code leaves to cts the prob of determining proper degree of
individualization and when to individualize, and the cts remain in conflict.
o Importance of Individualization: The substance we give to reasonable person
std will determine what evidence gets in at trial
o Variant v. Invariant Stds: P wants less individualized std, D wants more
 Variant: Look to D’s individual characteristics. Punishment has to be
deserved; not culpable unless aware of wrong-doing.
o Williams: Considered Native American-ness
o Everhart: Look into her low IQ. -More likely to exculpate Invariant: Ordinary reasonable person; liability determined on basis of
general norms reas behavior.
o Edgmon: Individualize wrt recklessness; but don’t look at
intelligence, experience or physical capability for crim neg since the
std is ARP. – More likely to inculpate –
o Conflict w/ Fairness Principle: Should “situation” include
homophobia? Or no, which goes against fairness principle?
 Walker: Individualize for religious beliefs? Sustained
manslaughter, holding crim neg must be evaluated objectively.
Reas person in D’s position; not reas person w/ D’s beliefs.
Have we again sacrificed innocence for instrumental concerns?
f. Is (Invariant) Negligence a Form of SL? DEBATE
 Defending Neg: Crim law’s goal is to est a gen’l std of conduct for the community, in the
interest of safety for all. By merely lacking awareness you can be culpable b/c you
should’ve been aware. Holmes.
o Trend to require D have awareness of fatal risks to be guilty of manslaughter or
murder is a mistake; person here is guilty of a bad choice. In setting his
perception priorities, individual assigned too low a priority to the value of other
human beings. Key to culpability for failure to perceive is why the person failed to
perceive. Culpability should depend on drivers’ reasons for perceptive failure, not on
the failure itself (running red light b/c sick child v. showing off). Showing off shows
morally blameworthy perception priorities; shows indifference toward others which
we should respond to by convicting. Individuals deserve punishment for all acts
displaying serious disregard for moral worth of other human beings.
o This is a form of choice: We judge actor’s choices: what she has chosen to care
about and perceive; which gives individual’s conduct a distinct moral meaning.
o Condemnation goes to cares and concerns of actors. Not what’s in your head,
what you’re aware of, but rather what’s in your heart (Groom, bball).
o Armour supports this approach.
 Criticizing Neg: Neg is form of SL. Some people are born clumsy, thoughtless,
irresponsible. W/ the best will in the world, all of us at times make neg mistakes. It is hard
to see how justice requires mistakes be punished. The deterrent theory, which is normally
accepted as a justification for criminal punishment, finds itself in some difficulty when
applied to neg. Threat of punishment means nothing to someone who isn’t even aware he’s
doing something that might merit punishment. Punishment for inadvertence can’t deter.
o Williams: Non-instrumentalist and Choice Theorist. Neg is not a form of mens rea; in
neg, you lack a mental state, you lack awareness. Punishment has to be deserved.
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o Hart: The difficulty from punishing for neg isn’t b/c of punishing someone who is
unaware of risk he’s creating but rather b/c punishing someone for departing from an
external/invariant std that he or she might have been unable to meet.
 Even if std of care is very low, there will be some unfortunate people who thru lack of
intelligence or memory can’t attain even that std. If our conditions of liability are
invariant, then some individuals will be liable for neg though they couldn’t have helped
their failure to comply w/ the std. That becomes SL b/c of refusal to consider capacities
of individual who fell below std of care.
3. Civil Liability
4. Accidental homicide that results in no legal liability
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Exculpation
Justifications & Excuses: Suggest further considerations that negate culpability even when all elements
of the offense are present. GENERAL DEFENSES. About EVIDENCE getting to the JURY.
1. Justification: I did the illegal act, but it was the right thing to do. Justifies the action. No liability.
a. SELF-DEFENSE
o Burden of Proof
1. Prosecution: In most Js, burden on P to disprove self-defense BARD once the issue is
raised by the evidence.
2. Defense: Ohio, D has to prove it by preponderance when conditions of self-defense
weren’t among the elements of the crime charged. Martin.
TWO APPROACHES: Majority & MPC
o Majority: Goetz. Shot guys in train. Acquitted – Reas Belief. Vigilantism OK.
1. External circumstances: Imminence, necessity and proportionality
2. Belief: Subjectively honest (sincere belief of danger) and reas (objective)
a. D’s args: (1) There’s a certain amt of vigilantism that’s ok. (2) Compare
Battered Women Justification (3): Goetz says I have special knowledge that
you, jury, wouldn’t understand. I was justified.
3. SELF-DEFENSE RULE: A person may use deadly force when and to the extent
necessary to defend himself or a 3rd person from what he reasonably believes to be the
imminent use of unlawful force by the assailant.
a. BUT: A person may not use physical force unless he reasonably believes that
other person is about to use deadly force or kidnap, rape, sodomize or rob.
4. Individualized Objective Test: D can introduce evidence of his background and other
relevant characteristics like his physical attributes, prior experiences (eg. robbed).
Reasonableness is based on the D’s “circumstances” or his “situation.”
a. Bottom Line: Use objective std, considering his “situation.” If we still find him
unreas, it’s murder. Under MPC, it’s neg homicide or manslaughter.
b. Mistake OK: D’s belief as to intention of assailant to inflict serious injury doesn’t
have to be correct in order to use deadly force, but his belief must comport w/
objective std of reas-ness.
5. Implications of Objective ARP Test
a. Reasonable Racist: Blacks are statistically more violent; even if this belief stems
from prejudice, I should be excused b/c most similarly situated Americans would
have done this too. The sole objective of criminal law is to punish those who
deviate from norms. I didn’t deviate; I made a reas mistake.
1. Rebuttal: Law shouldn’t always define typical (rational) beliefs as reas
beliefs. Actor’s failure to overcome racism for sake of another’s safety is
blameworthy and thus unreas, independent of whether it’s typical.
b. Race-based evidence of reas-ness impairs jurors to rationally strike balance b/w
costs of waiting (hurt yourself) and costs of not waiting (hurt black).
c. Holding Negs Culpable: If make neg, honest, unreas mistake about need for selfdefense and guy dies, guilty of murder.
6. Critique of Reasonableness Req: There are no reas people under conditions in which
severe bodily harm is believed imminent. Departs from subjective culpability.
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a. Expectations of reasonableness are neurologically unrealistic. As long as our
brain is put together the way it is, no one should be too confident that he would
remain completely reas when their life is perceived to be in imminent danger.
b. Holmes: Detached reflection can’t be demanded in presence of uplifted knife.
7. Imperfect Self-Defense: Many states that use the objective test avoid holding honest,
unreas mistakes as murder by finding “imperfect” self-defense: Crime becomes
voluntary manslaughter b/c malice lacking and similar to HOP.
o MPC Approach: As long as subjectively, honestly believe need for self-defense, even if
unreas, can’t be found liable for murder, a crime requiring purpose or knowledge, only neg
homicide or manslaughter (if reckless). [Relate to Necessity]
1. Culpability Principle: This approach makes more sense from culpability standpt.
o Roles of Reasonable Person Test
1. Even when inquiry is purely subjective – where mens rea requires either purpose,
knowledge, recklessness – reas person test is relevant though not dispositive
2. Criterial Role: It is the legal ground of liability. Liability turns on reas person test (Eg,
neg – if find D’s behavior unreas, he’s crim liable. Also, recklessness – conduct has to
grossly deviate from reas person. Reas person aware of the risk wouldn’t have
continued in face of that risk.)
3. Evidential Role: W/ knowledge and purpose, liability doesn’t turn on reas-ness: have
to prove D knew he was doing wrong, or that was his purpose. Even if a reas person
would know but D didn’t, no liability. BUT, the less reas the belief, the less likely D
really believed it. Reas-ness as window/probative evidence on what’s actual.
o Reasonable Person Test and Self-Defense: Three claims of reasonableness embedded in
reas person test upon which self-D claim rests. (D wants to make all of them to jury)
1. Typicality: My beliefs are typical of those of gen’l population, so reas.
a. Stereotypes: Can be either justification or excuse
1. Justification: Statistics show rational relationship b/w race and crime.
Statistics & stereotypes can reinforce each other. I’m rational to kill.
2. Excuse: Stereotypes as driven by cognitive processing w/o conscious
awareness. My reactions are typical in that they’re not rational but they’re
ordinary; systematic tendency for 8 yr old to interpret bump from black
person as violent and attribute it to his character; interpret bump from white
person as result of external circumstances (hot weather). Human frailty.
3. Instrumentalism: Stereotypes are things you can’t blame for, so if we
condemn people for them, we’re condemning them for instrumental
reasons. To do racial justice might cause us to sacrifice individual justice.
b. Battered women are here when it’s confrontational, they say: I was in a
confrontation w/ this guy, wouldn’t you have fought back/killed too?
c. Rape: No means yes.
2. Excuse: Atypical from standpoint of general population, but typical for someone in my
subgroup. Individualized test of reas.
a. Compare my reaction w/ those of someone who went thru same experience I did.
Among them my beliefs are typical, so reas.
b. Battered Wmn: Feminists critique putting them here b/c makes them look weak.
c. Expert T: Challenges commonsense of jury, so bring in ET
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3. Justification: Atypical from standpoint of gen’l population, but more accurate given
my experiences. Individualized test of reas.
a. Goetz: I’ve been assaulted before, I’m better able than most to know it’s coming.
b. Battered Wmn: Feminist’s preferred category – I’m being accurate, not weak.
c. Expert T: Challenges commonsense of jury, so bring in ET
o Battered Women: Self-defense claim in which D is trying to admit evidence of BW
syndrome on reasonableness question. It’s a PTSD that may be relevant to reas-ness inquiry
if judge will individualize the reas-ness std. Cts uniformly hold BW evidence is admissible.
1. Excuse-Driven Claim: Subgroup (2): Jurors may think from their unbuttered
perspective there was no imminence or necessity, but I suffer PTSD, which distorted
my cognitive volitional capacity.
a. Learned Helplessnes: Something distorted in my cognitive (I see risk where
others don’t) and volitional (my will to leave has been diminished) processes.
Ordinary person who went thru battering cycle and developed the syndrome
could overestimate the dangerousness and underestimate the capacity to leave.
b. Excuse: Although I have deficiencies and they led me to use lethal force in
situations where you wouldn’t, I can’t be blamed for making these mistakes.
1. Analogize: Provocation (wedge b/w true self and contingent self). Can’t
expect me to be rational here.
2. Can establish partial excuse: HOP manslaughter; neg hom
c. Feminist Criticism
1. Schneider. (2) plays into stereotype of women as weak, irrational; (3) says I
am not irrational, what I did was justified—a better claim. Battered woman
must credibly explain why it was necessary to act on that occasion. Expert
T, admitted to explain why she didn’t leave, doesn’t help jury answer
whether she was reas in acting violently to save her life. Jury needs ET on
reas-ness b/c it may not understand that battered’s prediction of likely
extent and imminence of violence is particularly acute and accurate.
2. Coughlin: Get rid of this claim b/c plays into stereotypes of women as
irrational (see below for more).
2. Justification Claim: Subgroup (3): My assessment of assailant was atypical from
standpt of jurors but not distorted – actually, more accurate. Schneider. No talk about
deficiencies; I went thru it, I know how it goes.
3. Traditional Rule on Killing Batterer: Kelly. Stabbed on street, scissors.
a. Self-Defense: Justifiable when “actor reasonably believes such force is
immediately necessary for the purpose of protecting himself against the use of
unlawful force by the other person on the present occasion.”
1. Deadly force: Unjustifiable unless actor reasonably believes such force is
necessary to protect himself against death or serious bodily harm.
b. Expert Testimony, Walker: Cyclical nature of battering behavior (abuse, I love
you I’m sorry) explains why more women don’t leave their abusers. Unique
pressures on these women:
1. Learned Helplessness: Women become paralyzed: feel they can’t improve
situation and if they leave that will provoke more violence. They’re often
dependent on men so can’t leave, and state/police often don’t help.
2. ET and Jury: Helps jury determine whether under the circumstances, reas
person would’ve believed there was imminent danger. Explains why she
didn’t just leave. Enables jury to better determine honesty, reas of belief.
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4. Reasonableness: Objective or Subjective Stdpt?
a. Approach 1: Objective
1. Not replacing reas person std w/ reas “battered woman” std. Jury considers
D’s situation and knowledge, which makes the evidence relevant, but
ultimate Q is whether reas person, not reas battered woman, would believe
the need to kill to prevent imminent harm. The jury determines whether D’s
belief and actions were objectively reasonable.
b. Approach 2: Closer to fully subjective std
1. Leidholm: Juries should “assume the physical and psychological properties
peculiar to the woman and then decide whether the particular circumstances
were sufficient to create a reas belief that the use of force was necessary.”
2. Edwards: Further step. Weigh evidence in light of how an otherwise reas
person suffering from battered syndrome would’ve perceived and reacted
5. Critique of Individualized ARP
a. Morse: If battered women’s cognitive and volitional functioning is really
impaired (learned helplessness), D is claiming excuse. Partial excuses such as
EED or imperfect self-defense can be employed, but killing was not the right
thing to do, and it should not be justified. Rebuttal: Feminist Schneider, above
b. Estrich: Applying purely objective std is harsh b/c ignores characteristics which
justifiably shaped D’s perspective, holding her to std she can’t meet. If defender
is young, blind, shouldn’t expect her to behave like strapping adult. But, if totally
subjective, std loses normative component. Don’t want to give free rein to shorttempered who see threats where most don’t. Should protect even wrongdoers
from vigilante justice.
6. Criticism of Battered Women’s Defense
a. Lacks empirical support: Some studies show BW don’t suffer BWS
b. Feminist Arg: Coughlin. When seen as an excuse, not justification, the defense
relieves the woman of the stigma and pain associated w/ criminal punishment
only if she embraces another kind of stigma and pain: having a “mental health
disorder.” Construes women as incapable of choosing lawful conduct when faced
w/ unlawful influence from their spouses; defense reaffirms this invidious
understanding of women’s incapacity for rational self-control.
c. Moral: Although many people espouse notion that victim of abuse is entitled to
kill the abuser, that special justification defense is antithetical to the mores of
modern civilized society.
7. Traditional Rule on Killing Sleeping Husband: Norman: Dog food, cig burns. Ct
unwilling to admit battered evidence b/c no imminence (sleeping) or necessity (leave)
a. Perfect Self-Defense: Acquit when evidence shows that at time of killing, D reas
believed it necessary to kill to save herself from great imminent harm.
1. A complete justification – no legal wrong.
b. Imperfect Self-Defense: If mistaken about imminence/necessity, manslaughter
c. Imminence: D’s subjective belief he would kill her if got chance doesn’t est
imminence. The belief must be reas in that the circumstances as they appeared to
D would create such a belief in the mind of a person of ordinary firmness.
1. Critique: I should wait for kidnapper to wake up before I try to get away?
2. Dissent: For battered woman, the next attack, which could be the fatal one,
is imminent. Should individualize imminence belief.
d. Deadly Force: No proportionality element; cig burns/torture before aren’t
“serious bodily harm” or death.
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e. Judge as Gatekeeper: Didn’t allow these facts to get to jury
f. Mistake: Self-D is about appearance of imminence, not reality. If reas appears
imminence and necessity are satisfied, then have valid claim even if mistaken, so
long as reas mistaken.
g. Holding: Harm wasn’t imminent, deadly force wasn’t necessary. Testimony as to
her indefinite fears about what her sleeping husband might do in future didn’t est
a fear – reas or otherwise – of imminent death or great bodily harm at time of
killing. No evidence husband ever inflicted harm on her that approached lifethreatening injury. Voluntary manslaughter.
o Imminence Req in Self-Defense
1. Rule: Force can only be used to rebuff imminent serious bodily harm – about to
happen right now. Inevitable harm isn’t same as imminent harm.
a. Policy: Danger in rule that would legalize preventative assault. Ct doesn’t want to
tolerate retribution; requiring necessity and imminence is a way of preventing
retributive lethal force.
b. Evidentiary Restraint: If not imminent, don’t get to tell your story to jury or don’t
get jury instruction.
c. Criticism: Schroeder – killed cell mate who had history of rape and violence;
cell mate threatened to kill D that night “while sleepwalking.” If there wasn’t
serious bodily harm in past, you don’t have reas grounds for thinking it would
happen here, so no self-D instruction. Jury doesn’t hear evidence. Convicted.
2. MPC: Relaxes imminence req. It’s sufficient if actor reas believed use of defensive
force was “immediately necessary.”
a. Doesn’t require actual physical assault. Threat can support self-D when there’s
reas belief threat will be carried out. Even an otherwise innocuous comment
which occurred days before killing could be highly relevant when evidence
shows such a comment inevitably signaled beginning of an abusive episode.
3. Social Morality: Difficult to reconcile w/ imminence req, b/c should be allowed to use
deadly force against torture (but we’re not).
o Use of Deadly Force/Proportionality
1. Traditional Rule: D can only use DF to protect against death or great bodily harm.
a. Criticisms
1. Jury and Value-Judgment: Jury decides for certain values—selfpreservation, etc—you can kill.
2. Provocation: A man in BW position would likely take anything short of
lethal force as provocation.
b. Support: Recognizes the premium we place on human life.
2. MPC: Limits use of deadly force to cases where threatened danger is death, serious
bodily harm, kidnapping or rape.
o Exceptions to Right of Deadly Self-Defense: Retreat
1. Use of Deadly Force: MPC, Abbott. Neighbor fight w/ hatchet.
a. Retreat Rule: Majority. Must try to retreat if using deadly force (no duty to
retreat w/ non-lethal force; if punch happened to kill them, no liability).
Mandatory, but case-by-case. We know you can’t retreat from rifle at close range
but if weapon is knife, city block might be enough.
1. Policy: Better that the assailed retreat than another life be killed.
2. MPC 3.04: Deadly force is unjustifiable when actor knows he can avoid it
w/ complete safety by retreating.
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b. No-retreat Rule: Minority. Manly thing is to not be coward. Vindicates this
interest too – non-cowardice. Rule requiring retreat confuses jury b/c difficult to
determine whether D knew he could retreat w/ complete safety.
c. “Castle Exception”: MPC. No need to retreat in home/work even if assailed by
co-occupant, unless you were initial aggressor or assailed by co-worker.
1. Helps Battered Women: BWs who retreat often killed/hurt
2. Policy: Home is your safe harbor.
d. Initial Aggressor: Right of deadly self-defense is granted to only those free from
fault; denied to those who provoked the necessity for taking life.
1. Peterson: D left a safe haven to arm himself and return to the scene and stir
up trouble, which instigated the men to come after him. Manslaughter.
2. Exception: Even if D was initial aggressor, if he conveys to adversary his
intent to w/draw and in good faith attempts to do so, he is restored to his
right of self-D.
3. Non-Lethal Aggressor: In most Js, initial aggressor has NO self-D priv
even when his minor provocation is met by grossly excessive response; he
can only run or fight back unlawfully (and face murder charges if he’s
forced to kill). Example: P spits on K. K then comes after P w/ knife or gun.
P hurts K in trying to resist attack. P would be criminally liable, and so
would K by using deadly force. P forfeited right to self-defense w/ spitting.
4. Non-Lethal Aggressor: In some Js (MPC), can regain right to self-D if
met by life-threatening response, provided he uses every reas means to
escape other than deadly force.
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b. NECESSITY: Unger, MPC, NY. Total Exculpation. About what evidence gets to jury.
o NOT APPLIED TO NEG/RECK: Only a defense to laws that require purpose or knowledge
(a general justification to special mens rea -- PKRN). B/c if law requires neg or reck, it’s
implicit in the charge itself that D’s conduct was unjustified  the state needs to prove that.
o Unger Approach: Ill. D walked off honor farm b/c threatened. Holding: Jury could hear his
necessity defense b/c previous threats were carried out and he thought he would be killed.
1. Necessity: To break law was lesser evil. Conduct which would otherwise be offense is
justifiable necessity if accused was w/o blame in occasioning the situation and
reasonably believed such conduct was necessary to avoid injury greater than injury
which might reas result from his own conduct. (BPL: Assess competing evils; is act
desirable under the circumstances?)
2. Borough of Southwark: Ds homeless, London housing shortage. No help from govt
so squatted in empty houses. Ousted, brought necessity claim. No dice.
a. Rule: In case of great, imminent danger, to preserve life, can encroach on private
property. But not here b/c if homelessness permitted as defense to trespass,
necessity would open door which no man could shut.
3. Leno: Needle exchange program even tho illegal. Holding: D didn’t show the danger
they sought to avoid was clear and imminent rather than speculative and debatable.
4. Hutchins: Illegal possession of pot b/c had serious disease and pot helps w/ remission.
Holding: Not necessity b/c alleviation of his pain doesn’t outweigh harm to public if
declare his use inculpable; evidence doesn’t go to jury.
o Concerns w/ Necessity Defense
1. Value Judgments: Juries being asked to do something out of their province: Make
value judgments and balance values in ways they shouldn’t (only legislatures should)
a. Rebuttal: Juries do it all the time; fold excuse and justification into mens rea req
in neg and reck b/c first have to determine if it was substantial and unjustifiable
risk and then if reas person in the situation wouldn’t have done it. Example:
Speeding. If had good reason, it’s justifiable; no liability.
2. Jury Nullification: Invitation for jury to nullify the law; contradict legislative will.
Law has been violated, but don’t find person criminally liable for violating it. This is
why D hopes necessity info isn’t screened; if evidence gets in, even if jury instruction
not to consider it, jury might still go in D’s favor.
o MPC Approach: MPC 3.02 Necessity Elements – How to get around nullification
1. Actor believes his conduct is necessary to avoid an evil
2. Necessity arises from attempt by actor to avoid evil that’s greater than the evil sought
to be avoided by the law defining the offense charged; and
3. Harm or evil sought to be avoided was greater than that which would be caused by
commission of offense (not just that D believed it so).
4. A legislative purpose to exclude the justification doesn’t otherwise plainly appear.
 Legit Statutory Interpretation: Interpreting the law of the offense in light of thinking
that the special situation here calls for exception to liability, not nullification. Applies
when statutes are silent about this particular situation; legislature didn’t foresee this, so
it’s not necessarily nullification; it’s court fleshing out statute.
 NEG/RECK Exception: If D negligently or recklessly created the situation in which he
then had to break the law b/c of necessity, he will be liable only for the lesser crime
(play w/ fire in prison, got out of control; that’s why you had to escape). Other courts
say you’d have no defense in that situation b/c you created the emergency situation.
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o NY Approach: Necessity Elements
1. RULE: Conduct which would otherwise constitute offense is justifiable when it’s
necessary as emergency measure to avoid imminent harm which is about to occur by
reason of a situation occasioned thru no fault of the actor, and which is of such gravity
that, according to ordinary stds of intelligence and morality, the desirability of avoiding
the injury clearly outweighs the harm in violating the law.
2. Unlike MPC b/c: Requires conduct be “emergency measures to avoid imminent
injury, and developed thru no fault of the actor.”.
3. Like MPC b/c: Harm to you must in fact outweigh harm in violating law.
4. Unlike Ill b/c: In Ill, need reas belief the harm to you outweighs harm in violating the
law  In NY, must in fact outweigh.
5. Like Ill b/c: Also must result from no fault of the actor.
o Civil Disobedience: Willful violation of law for social protest.
1. Indirect: Violating a law that’s not, itself, the object of protest
2. Direct: Protesting a law by violating it or preventing its execution
3. Schoon: Protested tax money going to El Salvador. Said necessity was to stop further
war in that country. No necessity defense to indirect civil disobedience; act not taken to
avert a greater harm and thus maximize social welfare.
a. Necessity appropriate when alleged harm will be abated by taking illegal action;
not so w/ this, b/c the act alone is unlikely to abate the evil b/c these protests are
unlikely to abate the killings. Should’ve taken legal alternatives.
b. *Most cts haven’t gone this route and per se eliminated the defense for civil
disobedience; they open up possibility that if have Japanese being shipped off,
there’s a chance a necessity claim could get to jury.
o Taking Innocent Lives to Survive: A necessity claim, but can be interpreted as excuse too.
1. Dudley & Stephens: Can’t. We are often compelled to set up standards we can’t reach
ourselves, and to lay down rules which we couldn’t ourselves satisfy (what solicitude
does this show for innocence?). Not necessity; the absolute divorce of law from
morality would be of fatal consequence.
2. MPC: Lesser-Evil. Can kill innocent if on balance going to save more lives. Utilitarian
a. Instrumentalist: Sacrifice innocent lives for sake of greater good.
o Aiders & Abetters
1. Justification: If underlying act was justified, aider is also justified – no liability.
2. Excuse: Act was wrong, actor may be exculpated, but aiding wrong act is still culpable.
o Strict Liability
1. Justification: If this is normally SL crime but I have necessity, I have justification for
the illegal act so SL doesn’t attach. My act is fine, so don’t need to consider mens rea.
2. Excuse: If offense is SL—liable w/o any mens rea—PTSD excuse doesn’t help b/c it’s
a claim you weren’t subjectively blameworthy (but don’t care about mens rea in SL.)
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2. Excuse: Bad act, but don’t blame me b/c no reas person would’ve acted different. Total Exculpation.
a. NOT APPLIED TO NEG/RECK: Claims of excuse/justification reach jury implicitly in
evaluating D’s conduct under the circumstances (ARP std). Only in purpose/knowing crimes do
we need to ask whether jury can hear the duress/justification evidence.
o When mens rea req is either neg or recklessness, then one of the definitional elements of the
crime requires the jury to consider justifications and excuses as a matter of course.
o Debates only arise when have affirmative defense: consider justification or excuse not as part
of mens rea analysis (in determining neg or reck), but when you’re considering it as a
separate affirm defense that D has to raise and might have to prove in response to some
claim of purposeful or knowing wrongdoing.
b. DURESS: Complete Excuse
o Toscano: Someone threatened D to fill out false medical report or else kill him and family.
1. RULE: Duress is complete defense to crime other than murder if D engaged in
conduct b/c he was coerced to do so by use of, or threat to use, unlawful force against
him or someone else, which a person of reas firmness in his situation would’ve been
unable to resist. (Reduces murder to manslaughter b/c considered provocation).
a. Judicial Activism: Court created this defense on its own authority (but really look
down upon courts creating common law offenses)
2. Holding: No conviction.
o MPC 2.09: Duress is affirmative defense even to murder when actor was coerced by force or
threats of force against his person or that of another which a “person of reas firmness in his
situation would’ve been unable to resist.” Not purely objective std – consider size, strength,
age (but not temperament). D should be excused b/c the circumstances were so compelling
that otherwise law-abiding people might have done the same in the circumstances.
1. Not req’d he choose the lesser evil, but if the circumstances that would make out a
defense under this formulation also made the D’s act the lesser evil, MPC permits
justification defense too.
2. Policy: It’s hypocritical to impose on actor who has misfortune to confront a
dilemmatic choice a std his judges aren’t prepared to agree that they could comply w/ if
they had to face the problem. Condemnation here is unjust.
3. Imminence: One factor to be weighed by jury in determining whether D’c conduct
was that of a person of reas firmness in his situation. Today, many states still hold on to
the imminent req.
4. Duress v. Necessity: MPC allows choice-of-evils justification regardless of the source
of the peril, but only allows duress excuse when the peril confronting the D arises
from the do-it-or-else command of another person.
a. Policy: In former, no one can be punished, in latter, threatener can be punished
c. Intoxication: Cognitive claim, not volitional claim, is accepted by courts.
o RULE, Involuntary Intoxication: A defense only if it creates in D at time of crime a
condition that meets test of legal insanity, that is, a substantial incapacity either to appreciate
the criminality of the actor’s conduct or to conform to the law. Kingston.
1. So long as D had mens rea for the offense, the fact that intoxication may have lowered
his inhibitions isn’t a defense.
2. Kingston denies D ability to make intoxication arg to jury, even though he says the
alcohol lowered his inhibitions and he wouldn’t have done the act otherwise.
3. Similar to Volitional Prong of Insanity Defense and Duress: I wouldn’t have done it
had my capacity for self-control not been compromised thru involuntary intoxication.
 This arg is routinely rejected wrt involuntary intoxication.
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o
o
o
o
4. Criticisms
i. Williams: Punishing someone for doing something while drunk that he
wouldn’t have done had he been sober is punishing him for getting drunk.
ii. Hall: Drinking isn’t usu followed by intoxication, which doesn’t usu lead to
committing crimes, so people who do shouldn’t be punished unless when they
were sober they knew from prior experience they could be dangerous if they got
drunk (only then do they have mens rea).
iii. Retribution Rationale Fails: How to justify punishing someone who doesn’t
know right from wrong and so can’t be motivated not to act a certain way?
iv. Continual Conflict B/W Instrumentalism & Just Deserts
Roberts: Std approach to intoxication providing defense when negates mens rea
required by definition of crime. “I never committed a crime at all – no mens rea”
1. Crime: Assault w/ intent to murder.
2. Jury: Since the intent question makes intoxication legally relevant to mens rea, it
should go to the jury and the jury should consider it in deciding whether that mens rea
existed at the time of committing the actus reus.
3. Admit intox evidence for both general and specific intent crimes when relevant: If
his mental faculties were so far overcome by intoxication that he wasn’t conscious of
what he was doing, or if he did know what he was doing but didn’t know why he was
doing it, no intent. If he did entertain the intent, even if it was a drunken intent and butfor intoxication he wouldn’t have, still liable.
Hood: Alternative Approach.
1. RULE: Evidence of intoxication could be considered in determining specific intent but
not in determining a general intent.
i. Crime: Assault – attempt (intent) to do injury. But ct calls this a general intent
crime so intox defense inadmissible.  Seems like specific and general intent
are just being used to manipulate the decision to exclude evidence, since this
was pretty straight up a specific intent crime.
ii. Note: MPC avoids reference to specific/gen’l intent b/c too confusing.
Stasio: Alternative Approach.
1. RULE: Evidence of voluntary intoxication is inadmissible for both specific and
general intent crimes, BUT, it can be introduced to demonstrate that premeditation and
deliberation haven’t been proven so that a 2nd degree murder cannot be raised to 1st
degree, or to show that intoxication led to permanent insanity.
2. Statutory Construction: The statute indicated this is a specific intent crime so
evidence of intoxication is relevant, but ct said it’s inadmissible.
3. Instrumentalism: Criminal law’s primary function is to protect society from results of
behavior that endangers public safety.
i. Intoxication treated differently from other relevant evidence b/c such a close
connection b/w alcohol and crime. Liable for the crime b/c voluntarily drank.
ii. Closing Loopholes: Saying we’re worried about loopholes says we’re more
worried about false acquittals than false convictions  sacrifices innocence for
social policies b/c excludes probative evidence – evidence that makes it more
likely D isn’t guilty and fact-finder won’t find him guilty BARD w/ that
evidence. If exclude relevant evidence, get more false convictions.
MPC 2.02, CA, NJ: Consider intox on purpose or knowledge but not reck or neg
1. Justification: Intoxication may have robbed you of awareness of the substantial,
unjustifiable risk you were running, but that’s often what intoxication does—makes
you oblivious to certain dangers.
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2. Criticism: Morse. Can’t equate the culpability of becoming drunk w/ the conscious
awareness of anything criminal that the agent might do while drunk. Most people
aren’t aware that drinking will produce a substantial and unjustifiable risk that they will
commit a crime, unless that person has a previous history of committing that crime
while drunk. If that history is present, he can be liable. But not otherwise.
a. Also, mentalists: If no awareness, no choice so no culpability.
d. Insanity
o 2 Prongs to Insanity Defense
1. Cognitive: I didn’t know what I was doing
2. Volitional: I knew what I was doing but my ability to avoid doing it was compromised
to the point where it’s unjust to condemn me.
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