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I. Theories of Criminal Punishment
A. Utilitarianism - forward looking, focuses on preventing harm;
1. Deterrence
a. general - punishing this ∆ deters others
b. specific - punishing this ∆ to deter this ∆.
2. Incapacitation - protect society by separating the criminal either by
incarceration or stigmatization.
3. Rehabilitation - “cure” the ∆ to prevent future crimes.
B. Retributivism
1. retribution - punish ∆ because he “deserves” it.
a. assaultive (lex talionis) - “eye for an eye”
b. protective - respect the ∆’s free will and punish him to pay his
“debt to society” so that he can be reinstated to society’s protection
and benefits.
2. denunciation - punishment expresses society’s disapproval.
C. Principle of Legality
1. no crime without law; law must exist before the conduct occurs.
a. criminal statute should be understandable to provide fair
warning
1) rule of lenity - ambiguities go in ∆’s favor
2) encourages legislature to write statutes more clearly
preventing too powerful state.
b. some jurisdictions follow legislative intent/purpose to broaden
statute beyond explicit language if needed.
D. Doctrine of Proportionality - punishment should fit the crime.
II. Actus Reus (Voluntary Act that results in a Social Harm) Requirement
A. The following are not voluntary acts:
1. reflex or convulsion
a. counter-ex: in Decina, the actus reus was defined as driving the
car while knowing that an epileptic fit was likely, not the epileptic
fit itself. (time-framing)
2. bodily movement during unconsciousness or sleep,
a. sleepwalking is involuntary
b. automatism - the person is acting automatically without any
consciousness of his actions (different from mens rea).
1) ex: Newton - black man lost conscious control of his body
and shot police officer reflexively.
c. hypnotism and multiple personality disorder are probably not
relevant because they are too hard to understand and too easy to
claim.
3. movement not the product of the effort or determination of the actor.
a. ex: being “bumped” by someone else.
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b. ex: police dragging a drunk man from his home and then citing
him for public drunkenness.
B. Omissions are only criminal if:
1. the actor was under a legal duty (not just moral duty) to act either by:
a. express statute;
1) ex: driver involved in accident required to stop at the
scene.
b. contract
1) ex: Pestinakis - oral contract to provide medical care to
elderly man was breached, causing elderly man to die of
starvation and exposure.
c. special relationship
1) ex: mother who allows children to remain with abusive
father.
d. creation of the risk which led to the harm or materially increased
it.
e. volunteer and take away other options for help (also Pestinakis).
2. the person was physically able to perform the required act.
C. “Possession” as the actus reus requires that the actor have been aware of his
control of the object for a sufficient time to have been able to terminate his
possession.
D. The voluntary act must result in a “social harm”
1. Social harm is the “negation, endangering, or destruction of an
individual, group or state interest which was deemed socially valuable.”
2. Sub-elements of the social harm:
a. “conduct” crimes - no harmful result is required
1) ex: driving under the influence of alcohol
b. “result” crimes - defined in terms of the prohibited result
1) ex: the killing of another human being (murder)
c. attendant circumstances - must be present for crime to occur
1) ex: gun used for murder must be loaded - not part of the
crime.
2) ex: burglary must occur at night - night is part of the crime
definition.
III. Mens Rea (mental state)
A. Model Penal Code § 2.02 mental states:
1. Purposely a. result or conduct crimes - “conscious object” to engage in the
conduct or cause the result.
1) ex: ∆ explodes a bomb in an airplane to kill his wife. ∆
purposely killed his wife.
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b. attendant circumstances - “aware of the existence of such
circumstances or believes or hopes they exist.”
1) ex: ∆ breaks and enters a house he is aware is a dwelling
house at night when he can see it is dark outside. ∆
purposely acted with respect to the attendant circumstance
of dwelling house and nighttime.
2. Knowingly a. result crimes - “aware or practically certain” that his conduct will
cause the result.
1) ex: ∆ explodes a bomb in an airplane to kill his wife, and
other passengers die as well ∆ knowingly killed the other
passengers.
b. attendant circumstances and conduct crimes - “aware that his
conduct is of that nature or that such attendant circumstances
exist.”
1) ex: ∆ fires a loaded gun in V’s direction, aware that V was
in the target area. ∆ knowingly endangered the life of V.
2) ex: ∆ is given property which he is aware is stolen. ∆
knowingly received stolen property.
a). “willful blindness” is avoided by expanding
definition of knowingly to include “aware of a high
probability” of the existence of an attendant
circumstance, “unless he actually believes that it does
not exist.” - ex: Jewell smuggling drugs but not
looking in compartment.
3. Recklessly
a. “conscious disregard of a substantial and unjustifiable risk” of a
social harm.
1) “law-abiding person” standard
2) ex: ∆ bombs a car to kill a passenger, and knows that
pedestrians walking by might also get killed, but doesn’t
care. ∆ recklessly killed the pedestrians.
4. Negligently
a. actor “should be aware of a substantial or unjustifiable risk” of a
social harm.
1) reasonable person standard
2) ex: ∆ bombs plane to kill wife, plane crashes and kills
people on the ground, even though ∆ was unaware that the
plane would kill others on the ground when it crashed. ∆
negligently killed the people on the ground.
b. only criminal when expressly provided for in the statute.
B. If the statute does not specify which sub-elements require culpability, then all
material elements require culpability.
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1. ex: to be guilty of “causing an injury to a police officer,” a person would
have to be culpable with respect to causing the injury, as well as knowing
that the victim was a police officer.
2. material elements are those which go to the criminality or wrongfulness
of the conduct, not the mere procedural elements.
C. If the statute does not specify a mental state, then any mental state (purposely,
knowingly, recklessly) except negligence will suffice.
IV. Strict Liability Crimes (no mens rea requirement)
A. Five factors may overcome the presumption against strict liability:
1. the statutory crime is not derived from common law crimes
a. ex: speeding on the highway
b. ex: Morrisette was not convicted of stealing government
property because he lacked the mens rea for common-law larceny.
2. clear legislative policy would be undermined by a mens rea
requirement for the crime
a. ex: many people litter accidentally, but accidental littering is as
ugly as intentional littering.
b. ex: public welfare offense such as dumping sewage is so serious
that the damage done by a single incident requires ignoring the
mens rea - Weitzenhoff.
3. the standard imposed would properly be expected of reasonable person
4. the penalty is small
a. ex: fine of $50 for expired parking meter.
b. counter-ex: selling alcohol to a minor can result in a long prison
sentence.
5. the conviction does not carry a large stigma
a. ex: many people get speeding tickets.
b. counter-ex: statutory rape carries a large stigma.
B. Lady Wooten’s Proposal - dispense with the mens rea for all crimes, and only
take culpability into account at sentencing.
1. Pro: utilitarian motive to deter all crimes, not just those that are where
the actor is morally culpable.
2. Con: too much intrusion into our lives by police, waste of resources.
V. Causation (part of the actus reus in a result crime).
A. Actual cause - determines candidates for responsibility
1. “but for” test - “but for D’s voluntary act (or omission) would the social
harm have occurred when it did?” If not, D is an actual cause.
a. ex: D1 takes aim at V. Before he shoots, D2 shoots V, killing V
instantly. D2 is an actual cause of V’s death, but D1 is not an actual
cause of V’s death because V’s death would have occurred when it
did anyway.
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2. multiple actual causes
a. accelerating a result - normal application of “but for” time frame
(“when it did”)
1) ex: both D1 and D2 shoot V simultaneously in the
stomach. Either shot would have killed V in 1 hour, but the
combination causes V to die in 5 minutes. Both D1 and D2
are actual causes because V would not have died when he
did but for both shots.
b. concurrent sufficient causes - modified “but for” to include “as it
did.”
1) ex: D1 and D2 simultaneously shoot V in the head, killing
him instantly. Either shot would have been sufficient to kill
him instantly. Both D1 and D2 are actual causes because V
would not have died as he did (from 2 shots to the head) but
for both shots.
c. obstructed cause - normal application of “but for” time frame
(“when it did”)
1) ex: D1 shoots V in the stomach (which would kill him in 1
hour). A second later, V is struck in the head by a bullet shot
by D2, which kills him instantly. D1 is not an actual cause of
V’s death because D2’s shot would have killed him instantly
regardless of D1’s shot.
B. Proximate Cause - public policy determination of liability from among actual
causes.
1. Direct cause - no event of causal significance intervened between D’s
conduct and the social harm.
a. a direct cause is always a proximate cause.
2. Intervening causes - an independent force that operates in producing
the social harm after D’s voluntary act must be foreseeable.
a. responsive (dependent) intervening cause - occurs in reaction or
response to ∆’s prior wrongful conduct - ∆ is liable unless response
was “highly abnormal or bizarre” because responsive intervening
causes are foreseeable by nature.
1) ex: D lethally wounds V. At the hospital, V receives
negligent medical care, and then dies. D is still a proximate
cause because negligent medical care is not “highly
abnormal or bizarre.”
b. coincidental (independent) intervening cause - does not occur in
reaction or response to ∆’s prior wrongful conduct - ∆ is liable if the
coincidence was foreseeable.
1) ex: In Kibbe, it was foreseeable that the drunk robbery
victim would be hit by a car if left on the highway, even
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though the driver of the car was acting independently of the
robbers.
3. Special Factors - justify a different conclusion than the normal
intervening cause doctrine.
a. must not be de minimis
1) ex: D non-lethally wounds V who is struck by lightning
and killed on the way to the hospital. D is an actual cause,
but not a proximate cause due to his de minimis
contribution to the death.
b. intended consequences doctrine - allows many intervening
causes if the intended result of the wrongdoer actually happens in
an unforeseeable way.
1) ex: mother wishing to poison baby leaves poisoned
“medicine” bottle with nursemaid who puts in on the shelf,
thinking the “medicine” unnecessary. Later, another child
finds it and feeds it to the baby. Mother is proximate cause
of the intended poisoning of the baby.
c. apparent safety doctrine - ∆’s force came to rest with victim in
position of apparent safety.
1) ex: husband beats wife who runs to parents house and
freezes to death on the porch because of embarrassment.
Husband is not proximate cause.
d. voluntary human intervention - a willful act by another human
intervenes and causes the harm
1) ex: at the end of the drag race, one of the participants, of
his own volition, decides to keep going and eventually
crashes. Other drag racer is not proximate cause.
e. omissions - rarely serves as a superseding intervening cause.
1) ex: D drunk drives a car in which P is a passenger,
resulting in a crash which kills P. Even though P failed to
wear his seatbelt, D is proximate cause.
VI. Concurrence (Actus reus and mens rea must concur)
A. Temporal concurrence
1. the social harm can occur after the mens rea, but the actus reus must
occur at the time of the mens rea.
a. ex: D shoots V, but later regrets it before V dies several weeks
later from the wounds. D is still liable for murder.
B. Motivational concurrence
1. the social harm can occur at the same time as the mens rea, but the mens
rea has to be the motivation for the actus reus.
a. ex: D intends to kill V by shooting him. On his way to V’s house,
V steps in front of D’s car and is accidentally killed. D is not guilty
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of murder because the mens rea was not the motivation for the
actus reus (failure to stop in time).
VII. Murder (criminal homicide)
A. Murder and Manslaughter definitions
1. The Common-law definition of murder is “the killing of a human being
...with malice aforethought.”
a. intent to kill another human being (express or implied)
1). The natural and probable consequences rule: intent-to-kill
can be implied by a showing that the death was the natural
and probable consequence of the ∆s action.
2). The deadly weapon rule: the intentional use of a deadly
weapon allows a jury to properly infer that intent to kill was
present.
b. intent to inflict grievous bodily harm
1) normally results in second-degree murder.
c. extremely recklessness plus extreme disregard for human life
(depraved heart murder)
1) ex: playing Russian poker in Malone.
2) ex: firing a gun in a crowded bar in Register, even if the ∆
was drunk.
3) ex: consciously disregarding the known danger of killing
others when driving drunk in Whitfield.
d. intent to commit a felony during which a death results (felony
murder rule).
1) common-law version substitutes for malice, but is
narrowly construed to “inherently dangerous” felonies “high probability that a death will result.”
2) degree-fixing version substitutes for premeditation (to
elevate to first degree) during “enumerated felonies” but not
malice which is still required for murder. See Aaron.
3) felony may “merge” with the homicide if it is an “integral
part,” preventing FMR from substituting for malice,
otherwise all manslaughters would be murder because
manslaughter is a felony. See Smith (felony child abuse as
“integral part” of homicide precludes implied malice from
felony).
4) does not apply in agency state when the a third party who
is not a co-felon kills one of the co-felons. ex: shopowner
kills co-felon in Canola. Exception - human shield.
5) gun-fight exception: does apply in proximate cause state
when one of the victims shoots one of the other victims in a
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gun fight. See Dowden (police officer kills police captain
during heated gun battle, thinking it to be the felon).
2. Manslaughter is without malice aforethought.
a. Voluntary manslaughter can be
1) adequate provocation - failure of proof defense which
negates intent to kill
a) ∆ acted in “heat of passion” - “violent, intense
emotion.”
b) ∆’s heat of passion was the result of adequate
provocation - causation and adequacy are questions
of fact for the jury
c) ∆ did not “cool off”
d) reasonable person would not have “cooled off.” slightly subjective standard taking into account some
of the killer’s characteristics.
e) ex: finding a spouse immediately before, during or
after the act of adultery.
2) imperfect self-defense
3) diminished capacity
b. Involuntary manslaughter can be
1) an unintentional killing that is the result of gross
(criminal) negligence/recklessness (not “extreme”
recklessness for depraved heart murder). A “gross deviation
from the standard of care that reasonable people would
exercise in the same situation.”
a) objective reasonable person standard: Ex: failure to
provide adequate fire safety in a public dance hall in
Welansky; failure to take extremely ill baby to doctor
in Williams.
b. difference between gross recklessness and
depraved heart murder is that depraved heart
murderer consciously disregarded the risk.
2) Misdemeanor manslaughter is a killing that occurs during
the commission or attempted commission of an unlawful act
which is not a dangerous felony.
a) limited to “inherently dangerous” misdemeanors
b) risk of death must be foreseeable
c) proximate cause of death must be the violation
d) crime must be mala in se (not strict liability)
e) Counter-ex: petty theft victim has heart attack as a
result of chasing thief in Todd.
B. Degrees of murder
1. First degree murder is:
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a. by poison or lying in wait
b. by willful and deliberate premeditation
1) Willful means “a specific intent to kill.”
2) Deliberate means “to measure and evaluate the major
facets of a choice or problem.”
3) Premeditated means “to think about beforehand.” In most
jurisdictions, this requires “some appreciable time,” so that
the ∆ could give the matter “at least a second thought.” See
Ollens (multiple stab wounds from behind show
premeditation); But see Bingham (time alone is not evidence
of premeditation)
c. during the commission or attempted commission of an
“enumerated felony.”
2. second-degree murder is all other murders that do not fall into one of
the three categories above.
a. a first degree murder is not mitigated to second degree solely
because of motive. See Gilbert (first degree premeditated murder is
not mitigated because motive was “love for dying spouse.”)
VIII. Defenses
A. Defenses Generally
1. Failure of Proof defenses - ∆ introduces evidence at his trial that
demonstrates that the prosecution has failed to prove an essential element
of the offense charged. ∆ did not commit the crime.
a. Ex: ∆ thought that he fired his gun at a tree stump, not a human
(mistake of fact-lacked mens rea).
b. Ex: ∆ was unconscious (automatism-lacked actus reus).
c. Prosecution retains the burden of proof (production and
persuasion) to disprove the ∆’s failure of proof defense.
1. “True” defenses - if proved, results in the acquittal of the ∆, even
though the prosecution has proved every element of the offense. ∆
committed the crime, but should be acquitted.
a. Justification defenses - ∆ acted the “right” way, even though he
committed a crime.
1). focuses on the act not the actor.
2). Ex: self-defense homicide.
b. Excuse defenses - although the ∆ committed the crime, he should
not be punished because he was not morally culpable.
1). focuses on the actor, not the act.
2). Ex: insanity
B. Duress and Coercion
1. Five elements must be satisfied:
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a. another person threatened to kill or grievously injure the ∆ or a
close relative;
1). ex: a burglary to avoid a lightning storm or a rabid dog
would not qualify for “duress”, but may qualify for
“necessity.”
2). must be a threat of deadly force, not just property
damage or economic coercion.
b. the ∆ reasonably believed that the threat was genuine;
c. the threat was “present, imminent, and impending” at the time of
the criminal act;
1). “present” means that the ∆ be aware of the threat in his
own mind at the time.
2). “imminent” usually requires that the threat be able to
harm the ∆ at the very time that he is committing the act, not
after if there is time to escape.
d. there was no reasonable escape from the threat except through
compliance; and
e. the ∆ was not at fault in exposing himself to the threat.
2. Duress is normally treated as an excuse, not a justification.
a. Utilitarian rationale for the excuse is that deterrence is ineffective
when a person is truly under duress.
b. Retributivist rationale is that the ∆ does not deserve to be
punished.
3. Duress is not a defense to murder, although some states allow it as a
defense to the felony murder rule.
a. ex: In Hunter, hitchhiker who was threatened into accompanying
felons was not held liable under FMR for a murder by one of the
felons.
4. Duress differs from necessity in two ways:
a. necessity justifies the ∆’s crime by stating it was the lesser of two
evils; duress excuses the ∆’s crime even though it may have been a
greater evil.
b. in necessity, no social harm has occurred, so no person can be
prosecuted; in duress, a social harm has occurred, and the coercer is
liable for the harm.
C. Necessity
1. As a result of some force or condition, the ∆ must choose between
violating a relatively minor offense or suffering (or allowing others to
suffer) substantial harm to person or property.
2. Requirements
a. The actor must be faced with a “clear and imminent danger.”
b. ∆ must reasonably expect that his action will be effective in
abating the danger that he seeks to avoid.
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c. there must be no effective legal alternative available.
d. the harm caused must be foreseeably less than the harm avoided.
e. legislature must not have anticipated the dilemma and
previously resolved it against the choice made by ∆.
f. ∆ must not be at fault in wrongfully placing himself in the
position where he was forced to engage in criminal conduct.
3. Three limitations may apply:
a. some states limit the necessity defense to emergencies created by
natural (not human) forces.
b. may not apply in homicide cases (Dudley & Stephens lifeboat
case)
1). homicide is a case of equal harms, ∆’s life or an innocent
life.
2). might be overcome if the harm was sufficiently imminent
and the harm avoided was the death of both the ∆ and the
innocent.
c. the ∆ may not act to protect his reputation or economic interests,
only persons or property.
4. Civil Disobedience - necessity can never be a defense.
D. Self-Defense
1. At common-law a person who is not an aggressor is justified in using
force upon another if he actually (subjectively) and reasonably
(objectively) believes that such force is necessary to protect himself from
imminent use of unlawful force by the other person.
a. “necessity” requires that the force should not be used against
another person unless, and only to the extent that it is necessary.
b. “proportionality” requires that the person is not justified in using
force that is excessive in relation to the harm threatened.
c. some courts use a “subjectivized objective” standard taking into
account subjective traits of person in determining reasonableness.
1) Ex: In Wanrow, elderly woman shot large man suspected
of molesting her child when he came toward her. Jury
allowed to consider size, age, and sex of ∆ to determine
reasonableness.
2) Counter-ex: In Simon, elderly man shot Asian man
thinking he was martial art expert. Jury not allowed to
consider racism of ∆ in reasonableness finding - “normative”
standard not “popular” standard.
d. “imminent” can have two meanings:
1) “immediate” - temporally strict, narrow.
2) “imminent” - forthcoming in view of past events
2. Aggressor/Non-aggressor limitations
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a. An “Aggressor” is a person whose “affirmative unlawful act is
reasonably calculated to produce an affray foreboding injurious or
fatal consequences.”
1). ex: if D unlawfully brandishes a knife and threatens to
kill V, D cannot claim self-defense if V responds with
violence.
2). a person is an aggressor even if he merely starts a
non-deadly conflict.
3). a person is not an aggressor if his conduct is lawful.
b. A deadly aggressor is a person whose actions are reasonably
calculated to produce fatal results.
1). a deadly aggressor may only claim self-defense if he has
withdrawn and successfully communicated to the victim
that he is no longer a threat.
2). a non-deadly aggressor usually can assert self-defense if
the response to his non-deadly aggression is deadly force,
but some jurisdictions require even a non-deadly aggressor
to retreat before regaining a right of self-defense.
3. Retreat
a. most jurisdictions allow a non-aggressor to stand his ground and
assert self-defense even if there are alternatives available to retreat
to complete safety.
1). policy is that it would unduly put victims at the mercy of
assailants because there could be few real self-defense cases.
b. Some jurisdictions require the victim to retreat if there is a place
of complete safety, unless he is in his own home (“castle”
exception).
a. policy is to place the value of human life over the “manly”
right to stand up to aggression.
b. issue is whether the ∆ was aware of escape to complete
safety given the excitement of the situation.
4. Battered Woman’s syndrome
a. history of abuse evidence is relevant to determining whether
woman had actual (subjective) belief that the threat was imminent.
b. however, states are split as to whether evidence of battered
woman’s syndrome is relevant to the determination of the
reasonableness (objective) of her belief.
1) ex: In Stewart, wife killed abusive husband while asleep,
court said escape was available, so belief of imminent harm
was unreasonable.
c. battered child syndrome has not gained recognition yet.
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1) ex: In Jahnke, abused son ambushed father. Held:
evidence of battered-child syndrome not admissible if
danger was not imminent.
5. “Imperfect self-defense” - if belief was actual but not reasonable, then
murder is mitigated to manslaughter because ∆ did not have actual
malice.
E. Crime Prevention/Law Enforcement
1. Non-Deadly Force - may be used to prevent crime or make arrest if the
∆ reasonably believes:
a. a felony or breach of the peace has been committed; and
b. the force used is necessary.
2. Deadly Force -never permissible to prevent a misdemeanor, or arrest a
misdemeanor suspect.
a. Police officer must reasonably believe:
1) felony has been committed; and
2) deadly force is necessary
3) Tennessee v. Garner requires probable cause that the
suspect poses a significant threat of death or serious bodily
injury to the officer or others, and requires a warning shot if
feasible.
b. Private Citizen must be actually correct that:
1) a forcible felony has in fact been committed;
2) deadly force is necessary;
3) a warning is given.
4) Although Tenn. v. Garner applies to gov’t only, some
courts make it applicable to citizens who “step into the
shoes” of the police. Ex: Couch ∆ shot unarmed car stereo
thief as he fled.
F. Consent
1. Only a defense in sporting events, not aggravated battery.
2. ex: Samuels - sadistic ∆ filming a whipping of a “consenting” masochist.
G. Property defenses
1. Deadly force is never permitted in the protection of property.
a. spring guns are illegal because they are indiscriminate
1) ex: in Ceballos, ∆ liable for spring gun to protect garage
full of property from unarmed teenage thieves.
2) exception - if ∆ would have been justified in using deadly
force had he been present (self-defense in dwelling place).
2. Courts are split as to whether threats of deadly force are permissible.
3. Non-Deadly force is permissible if ∆ reasonably believes:
a. force is necessary to prevent an imminent and unlawful
dispossession; and
b. ∆ first requests that attacker desist (mandamus) if possible.
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c. recapture of property only if promptly after dispossession.
H. Defense of Habitation
1. Three approaches: ∆ is justified in using deadly force in defense of
habitation if he reasonably believes:
a. V intends to imminently and unlawfully enter; AND
b. commit a forcible felony or kill or seriously injure an occupant
(narrowest approach); OR
c. commit a felony or cause injury to an occupant (middle
approach); OR
d. V simply intends to enter (broadest approach); AND
e. deadly force is necessary to prevent the intrusion.
I. Intoxication
1. Voluntary intoxication is generally no defense for criminal conduct,
with two narrow exceptions:
a. ∆ did not harbor the specific-intent mens rea required, or
b. ∆ suffered from long-term, intoxication-induced, “fixed”
insanity.
2. Mens Rea
a. General-Intent offenses
1). voluntary intoxication is not a defense to general intent
crimes.
2). self-induced intoxication typically constitutes reckless
conduct (i.e. ∆ should know that he is jeopardizing others by
becoming drunk.)
3) although alcohol lowers inhibitions, it does not affect
simple goal-directed behavior.
b. Specific Intent offenses - (murder, assault with intent to rape,
burglary.)
1). voluntary intoxication is a defense.
2). since the state has included a particular state of mind as a
material element of the crime, intoxication is relevant to
determining whether the ∆ had the specific state of mind at
the time he committed the crime.
3) ex: In Hood, evidence of intoxication was allowable to
defeat specific intent crime of murder.
c. The distinction between general and specific intent crimes creates
the anomaly that a ∆ can use intoxication as a defense if he is
thwarted just prior to completing the specific intent crime, but not
if he has already completed it.
3. “fixed” insanity caused by long-term alcohol abuse is a defense, but not
“temporary” insanity caused by a single episode of drinking.
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1) ex: alcoholic can not claim act was involuntary because the
process of becoming an alcoholic was voluntary - habits are
volitional.
4. Involuntary intoxication
a. coerced intoxication - ex: drink or we’ll kill you.
1) probably must be a threat of physical harm.
b. intoxication by innocent mistake - ex: eat this (cocaine), it’s a
“breath freshener”
1) ex: accidentally drinking spiked punch at a party without
reasonable notice
2) counter-ex: PCP intoxication from unwittingly smoking a
PCP-laced marijuana cigarette is not innocent mistake
because street drugs have no warranty.
c. unexpected intoxication from a prescribed medication
1) as long as you didn’t overdose; and
2) you didn’t know of your susceptibility
d. “pathological intoxication” - temporary biological reaction in a
person who has an unknown predisposing mental condition such
as epilepsy.
e. does not always lead to automatic acquittal
1) an involuntary intoxicated person can claim all of the
defenses that the voluntary intoxicated person can (i.e.
negate specific intent, claim fixed insanity) plus he can also
claim temporary insanity.
2) not a defense to a strict liability crime because there is no
mens rea.
J. Mistakes of Fact
1. Not a “true defense”, only a “failure of proof defense.”
2. Mistake is a defense to a specific intent crime because it negates the
particular element of mens rea in the crime (elemental approach).
a. it does not matter if the mistake was reasonable or unreasonable
as long as it was actual; and
b. the act was not morally wrong (moral wrong doctrine) or legally
wrong (legal wrong doctrine) had the facts been as the ∆ believed
them to be.
3. Mistake is only a defense to general intent crime under circumstances
that negate his moral culpability (culpability approach).
a. mistake must have been reasonable; and
b. the act was not morally wrong (moral wrong doctrine) or legally
wrong (legal wrong doctrine) had the facts been as the ∆ believed
them to be.
4. Mistake is not a defense in strict liability offenses.
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a. ex: In Garnett, retarded man was guilty of statutory rape even if
his mistake was reasonable.
K. Mistake of Law
1. In general, “ignorance of the law is not an excuse,” meaning that it does
not generally negate the mens rea of the offense, because ordinarily,
knowledge that the crime exists is not an element of the crime itself.
a. utilitarian policy: prevents bogus defenses and subjective
arguments as to the meaning of the law to each individual
defendant - sacrifice the individual for the common good.
b. however, to punish under honest mistake of law is contrary to
the retributivist notion of moral blameworthiness.
2. Three general exceptions:
a. reasonable-reliance doctrine
1). “personal interpretation” is not an excuse, even if it was
reasonable.
2). however, “official interpretation”, i.e. the reliance on an
official statement of the law, which later turns out to be
erroneous, is a defense
a) statutes declared to be invalid;
b) overturned judicial decisions by highest court in
the jurisdiction; or
c) erroneous interpretations by authorized public
officials, but not informal interpretations by lesser
officials or poor advice of counsel.
b. Fair notice: the Lambert principle - may be a due process excuse
if:
1). the crime punishes an omission (ex: failure to register);
2). the duty to act was based on status rather than activity (ex:
presence in Los Angeles); and
3). the act was malum prohibitum
c. Negation of Mens Rea (“different law” mistake) - ∆ claims that
she lacked the requisite mens rea for the violation charged because
she mistakenly believed that a different law (or lack thereof) made
her actions legal.
1). Specific Intent Crimes - valid defense (for the same
reasons as mistake of fact - failure of proof) even if belief was
unreasonable.
a) ex: man “repossesses” his car from a mechanic not
knowing about the lien law.
2). General Intent Crimes - apparently no defense (in
contrast to mistake of fact).
a) ex: woman charged with possession of a firearm by
a convicted felon claims that she did not know she
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was a convicted felon (mistaken about nature of prior
conviction) - no defense.
3). Strict Liability Offenses - no defense.
a) ex: man charged with bigamy claims that he
thought his first wife’s divorce was legal when he
married second wife. -no defense.
K. Insanity- affirmative defense, does not negate mens rea, it provides an excuse.
1. Rationale for the defense:
a. Utilitarian rationale
1). no specific deterrence of insane person because they can
not see cause and effect relationship between their actions
and the punishment.
2). insanity results in civil commitment, separating ∆ from
society, so there is no need to stigmatize them to achieve the
separation.
3). rehabilitation of insane ∆ is not possible in a prison.
b. Retributivist rationale
1). insane person lacks “free will” capacity to make correct
choices.
2). without “free will” there can be no moral blame.
2. Competency to stand trial -question of law
a. a person may not be tried or sentenced if, during the criminal
proceedings, she:
1). lacks the capacity to consult with her attorney “with a
reasonable degree of rational understanding”; or
2). lacks a “rational as well as factual understanding of the
proceedings” against her.
b. a finding of incompetency results in the commitment to a mental
facility for “a reasonable period of time necessary to determine
whether there is a substantial probability that she will attain
capacity [to stand trial] in the near future.”
3. Four possible verdicts:
a. not guilty
b. not guilty by reason of insanity
1). automatic commitment - no hearing to determine if ∆ is
still mentally ill and dangerous - conviction;
2). discretionary commitment - judge has authority to order
mental evaluation to determine illness and dangerousness.
c. guilty
d. (optional) guilty but mentally ill.
a. ∆ receives normal sentence, but psychiatric care is made
available in the prison setting or a mental institution.
4. Bifurcated trials separate the trial into two phases:
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a. all aspects of the case except the ∆’s insanity are litigated; and
b. then the sole issue of ∆’s insanity is litigated.
c. saves time, confusion, decreases compromise, self-incrimination.
5. Burden of Proof
a. burden of initial production of evidence is on ∆ (affirmative
defense);
b. burden of persuasion usually on ∆
a. some states require preponderance of evidence;
b. other states require clear and convincing evidence.
6. Five tests for determining legal insanity:
a. The M’Naghten test - focuses exclusively on cognitive disability
(not volitional disability); very narrow. ∆ is NGBRI if, at the time of
the act, due to defect of reason from disease of mind:
1). actor did not “know” the “nature and quality” of the act
(∆ thought she was squeezing a lemon, not a person’s neck);
OR
2). actor did not “know” that what she was doing was
“wrong” (∆ didn’t know squeezing necks is wrong).
3). the word “know” is ambiguous
a) some courts require only “formal” knowledge that
the ∆ could describe what she was doing and knew
that it was forbidden. -ex: In Freeman, drug wacko
insisted drug sale occur in restroom.
b) other courts require “affective” knowledge
requiring that the ∆ could evaluate the impact of her
actions.
4). “wrong” could mean legal or moral wrong
a) Ex: if ∆ thought God told her to kill, and ∆ knew
that murder was illegal, she would be sane if “wrong”
meant “legal wrong,” but insane if “wrong” meant
“moral wrong.”
b) Exception in legal wrong states is “deific decree” insane even if you knew it was illegal. ex: In Serravo,
man thought God wanted him to stab his wife.
c) “moral” wrong is alternatively defined by a
“subjective” standard (∆ did not think it was wrong)
or an “objective” societal standard (∆ did not think
that society thought it was wrong).
b. “Irresistible Impulse” Test - arose due to lack of volitional prong
of M’Naghten.
1). ∆ “acted from an irresistible and uncontrollable impulse”;
2). ∆ “lost the power to choose between right and wrong”;
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3). ∆’s “free will has been destroyed” so that her actions are
beyond her control.
4). Both “irresistible” and “impulse” may be narrow in that
they do not account for degrees of insanity.
c. ALI (Model Penal Code) Test
1). ∆ “lacked substantial capacity” to “appreciate the
criminality (or wrongfulness) of her conduct; or
2). was “unable to conform her conduct to the requirements
of the law.”
3). A revised version of the M’Naghten test, substituting
“know” with “appreciate,” and irresistible impulse test,
avoiding the word “impulse.”
d. The Product (Durham) Test
1). person is excused if her unlawful act was “the product of
a mental disease or defect.”
2). requires a determination of:
a) whether the ∆ was suffering from a mental disease;
and
b) whether the crime would have occurred “but for”
the mental disease.
3). provides no definition of “mental disease.”
e. Federal Test
1). Statutory definition of legal insanity - ∆ must prove by
clear and convincing evidence that as a result of a “severe”
mental disease or defect she was unable to “appreciate”:
a) the nature and quality of her conduct; or
b) the wrongfulness of her conduct.
I. Diminished Capacity
A. Two categories:
1. “mens rea” form - negates the mens rea. An abnormal mental
condition not amounting to insanity.
a. failure of proof defense, not a true defense.
b. may result in acquittal if the state allows it as a defense
1) model penal code allows evidence that the ∆
suffered from a mental disease to be admissible in any
type of case where it is relevant.
2) some states limit its applicability to murder only.
3) some states allow it only as a defense to specific
intent crimes.
4) some states refuse it as a defense altogether.
c. arguments against:
1) it is not needed because insanity is easier to prove
than the failure to form a simple intent.
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2) it is too imprecise because it is really “partially
insane” defense.
3) could result in acquittal, putting a dangerous
person on the street.
2. “partial responsibility” - California approach.
a. by making a strict definition of the mens rea, the court can
state that the person was guilty only of a lesser offense, but it
really is saying that the person was less culpable although
not legally insane.
b. abandoned by modern courts.
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