Criminal Law
Table of Contents
I. General Framework of Criminal Law
A.
B.
C.
D.
E.
F.
G.
H.
I.
Void for Vagueness…………………………………………………….1
Utilitarian……………………………………………………………….1
Retributive………………………………………………………………2
Actus Reus……………………………………………………………...2
Voluntariness…………………………………………………………...2-3
Mens Rea……………………………………………………………….3-5
Law of Mistake…………………………………………………………5-7
Intoxication and Capacity………………………………………………7-8
Causation……………………………………………………………….8-9
II. Specific Crimes
A.
B.
C.
D.
E.
F.
G.
Homicide……………………………………………………………….9-10
Provocation…………………………………………………………….10-12
Involuntary Manslaughter……………………………………………...12-13
Felony Murder Rule……………………………………………………13-14
Death Penalty…………………………………………………………..14-15
Rape…………………………………………………………………….15-17
Theft Crimes……………………………………………………………17-18
III. Defenses
A.
B.
C.
D.
E.
Defenses Generally……………………………………………………..19
Self Defense…………………………………………………………….19-21
Necessity………………………………………………………………..21-22
Duress…………………………………………………………………..22-23
Insanity…………………………………………………………………23-25
IV. Attempt
A.
B.
C.
D.
E.
Generally……………………………………………………………….25
Policy/Theory…………………………………………………………..25-26
Impossibility……………………………………………………………26
Impossibility Brain Teaser……………………………………………..26-27
MPC on Attempt……………………………………………………….27-29
V. Group Crimes
A. Solicitation……………………………………………………………..29-30
B. Accomplice Liability…………………………………………………..30-31
C. Conspiracy……………………………………………………………..31-33
Criminal Law Outline
Prof. Kerr
Michael Forman
I. General Framework of Criminal Law
A. Void for Vagueness Doctrine
 Void for Vagueness is a two pronged test:
 A law is void if it leaves the public uncertain as to the
conduct it prohibits
 A law is void if it authorizes or encourages arbitrary or
discriminatory enforcement
 Chicago v. Morales – loitering law for criminal gang members
found to be vague because the it is uncertain what the criminal
conduct is and it leads police to act arbitrarily when enforcing it
 Papchristou v. Jacksonville – the city law made it a crime to be a
vagrant; law struck down because it gave police complete
discretion to determine who was a vagrant
B. Utilitarian Theories on Punishment
 Theories looking toward preventing future crimes
 Theories help to make policy arguments on whether laws are good
or bad
 Three types pf util. arguments
 Deterrence: criminals will perform a cost-benefit
analysis; Does the cost of punishment outweigh the
benefit of the crime?
 Incapacitation: When someone is in jail, he cannot
commit a crime; assumes repeat offenders who are not
replaced by “new recruits” and who are not encouraged to
commit more crimes on release from jail
 Rehabilitation: criminals can be treated and cured from
their diseases during their punishment; applies most to
drug and alcohol abuse
 Specific deterrence refers to the effect on the person prosecuted
 General deterrence refers to the effect on the people who may
commit the crime in the future
 Prosecuting copyright infringement (i.e. Napster) is a good way to
cause a high general deterrence value
 Incapacitation is simple but doesn’t always work because there is
usually someone ready to replace a criminal who is caught
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C. Retributive Theory on Punishment
 Main idea behind retribution is just dessert, i.e. people should get
what they deserve
 Someone who has done wrong should suffer in proportion to his
wrongdoing
 A criminal conviction shows a general condemnation of the
criminal actions by the state
 Retributive punishments bring moral values back to balance
 A criminal may value himself over the rest of society; punishment
balances this moral value
D. Actus Reus
 Every crime must contain an act
 Policy reasons for act requirement
 Can’t be punished for bad thoughts and no actions
 Mere thoughts don’t cause harm
 State can’t punish thought crimes; State can’t prove
thoughts
 Robinson v. California – cannot be punished for having the status
of being a drug addict; the law in the case punishes for having the
desire to commit a crime, therefore there is no act
 Proctor v. State – man was prosecuted for owning a house with an
intent to distribute liquor; cannot simply punish for owning a
house, there must be the act of distributing liquor before
punishment is given;
 There is a difference between ownership and possession;
possession is a proactive, knowing concept, where ownership is
not always; you can’t deter ownership, but you can deter
possession
 Omissions: if you have a legal duty to do something, knowing not
performing that duty can substitute for an act
 There are 4 situations where an omission would be criminal:
 Statute imposes a duty
 One stands in a certain status relationship to another
 One has assumed a contractual duty to care for
 One has voluntarily assumed control and prevented others
from caring for the person
 Act requirement is punishing people for conscious choices and
decisions, whether those choices result in an act or in the omission
of an act
E. Voluntariness as an Aspect of Actus Reus
 Act must be voluntary
 Person cannot be held liable for something he cannot control
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People v. Newton – def. brought a gun on a plane from the
Bahamas to Luxembourg; the flight was interrupted and landed in
NY; he was arrested and convicted under NY law; court reversed
conviction because def. did not subject himself to criminal liability
by virtue of a voluntary act
Martin v. State – no voluntary act because Martin was brought
against his will to public property by police; Martin was drunk, but
he was not voluntarily on public property
People v. Grant – def. assaults a police officer at a bar; he had a
grand mal seizure in jail, he had been suffering from psychomotor
epilepsy when the crime took place. For an act to be considered
voluntary, A jury not only has to determine whether a person has
the capacity to appreciate the criminal liability of his conduct or to
conform his conduct to be in compliance with the law, BUT ALSO
they must determine whether someone who has this capacity has
BEHAVED AUTOMATICALLY.
If person acts involuntarily but chooses to drink beforehand and
knows drinking can cause the condition, the he will be held liable
for his actions
Man who knows he has seizures and drives a car anyways deserves
punishment for a crime he commits because he is knowingly
putting himself in a dangerous situation by driving
In terms of utilitarian theory, you cannot deter an involuntary act
because the person has no control over it
While you cannot deter an involuntary act, the threat of
punishment can encourage a person to alter their conduct (i.e. take
medication, not drive a car, etc.)
In terms of retributive theory, criminal punishment should only be
imposed on those who act as a result of their choice
MPC § 2.01 discusses voluntary acts:
 Involuntary acts are: convulsions, sleepwalking, conduct
during hypnosis, etc.
 Omissions can be voluntary acts if there was a duty and a
person knowingly failed to perform duty
 Defines possession as a voluntary act, but says that
person has to have control of the item for a long enough
time to terminate possession
F. Mens Rea
 Every element of a criminal offense is accompanied by a required
mental state
 Common law had two different categories: general and specific
intent crimes
 There are three types of elements:
 Conduct: act of the person
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Attendant circumstances: surrounding description of the
world which must be met
 Result: what happens because of the crime; only some
crimes have results, like murder, rape, etc.
Crime = Element 1(with mental state) + Element 2(with mental
state) + …
Four different mental states according to the MPC:
 Purpose: desire to engage in specified conduct
 Knowingly: person is aware that it is practically certain
that his conduct will cause result; willful blindness is
equivalent to blindness
 Recklessly: person consciously disregards substantial and
unjustifiable risk that result will occur; gross deviation
from standard of conduct
 Negligently: person should be aware of substantial and
unjustifiable risk that result will occur; gross deviation
from standard of conduct; failure to live up to the
standard of a reasonable person
Mental State
Conduct
Purposely
Person’s conscious
object is to engage
in conduct
Knowingly
Circumstances
Person is aware of
their existence, or
person hopes or
believes that they
exist
Person is aware that Person is aware of
his conduct is of that circumstances
nature
Recklessly
Not defined
Negligently
Not defined
Person consciously
disregards
substantial and
unjustifiable risk
that circumstances
exist, gross
deviation from
standard of conduct
Person should be
aware of substantial
and unjustifiable
risk that
circumstances exist,
gross deviation from
standard of conduct
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Result
Person’s conscious
object is to cause
such a result
Person is aware that
it is practically
certain that his
conduct will cause
result
Person consciously
disregards
substantial and
unjustifiable risk
that result will
occur, gross
deviation from
standard of conduct
Person should be
aware of substantial
and unjustifiable
risk that result will
occur, gross
deviation from
standard of conduct
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Strict Liability: no mental state required for punishment
Strict liability is premised on utilitarian grounds; society is
punishing people who are morally not blameworthy in order to
more effectively deter socially dangerous conduct
MPC rejects the idea that there can be strict liability crimes
Purpose does not care about probability; even if someone threatens
to do something and it is not possible, he can still have purpose
Recklessness is the default mens rea; if only one mens rea is stated
for a statue, it applies for all elements
Regina v. Faulkner – def. had none of the mental states associated
with the crime of arson when he accidentally set fire to ship;
therefore he cannot be guilty of setting ship on fire because he was
negligent and the crime required an intent
Retributive theory says that a man who has the required mental
state is putting himself above others and the law and needs to be
punished
US v. Balint – crime was selling drugs without filling out proper
IRS forms; def. claims that he did not know the substance he was
selling contained drugs; court said that he could be punished even
though he had no knowledge because there is a burden on people
selling drugs to protect the general public
The Balint court used a policy argument from Congress that said
that the injustice of an innocent buyer buying the drugs is worse
than punishing the innocent seller
People v. Ryan – def. did not know weight of mushrooms,
therefore did not have associated knowing mens rea that element of
the crime; gov. made intentionalist policy argument that the
legislature did not mean for this when it made statue; court lets him
off because of lack of mens rea for the element of weight
G. Law of Mistake
 Question raised: defendant does not know about something, is that
a valid defense?
 All mistake claims are claims of a lack of mens rea
 Three different categories
 Mistake of fact: focused on associated mental states
regarding elements; defendant has different idea about an
element
 Mistake of non-governing law: same as fact, just when
element is legal issue; when the legislature has made a
legal issue a part of the crime
 Mistake of governing law: defendant has no idea that
elements add up to a crime; did not know actions
constituted a crime
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Regina v. Prince - court attached strict liability to element of age in
statutory rape-like cases; no mistake defense could be made in
terms of age
Most states attach strict liability to the element of age
Public policy and utilitarian theory point towards protecting
children
People v. Bray – Bray never knows if he was a felon, so he is
lacking the mens rea for being a felon in possession of a firearm;
the felon element has a default reckless mens rea; Bray was not
reckless because his conduct was not a gross deviation of the
standard of conduct of a law-abiding person; this is an example of
a mistake of non-governing law because a legal issue (i.e. being a
felon) is part of the crime
US v. Baker – defense was that Baker did not know that elements
plus mental states added up to a crime; court said that ignorance of
the law is not a valid defense; you can’t deter someone who
doesn’t know he commits a crime, but you will make him learn
what the law is
Reliance on lawyer’s or prosecutor’s advice is not an official
defense
Cheek v. US – def. honest believed that he did not need to pay fed.
income tax; in terms of fed. tax law, ignorance of law is a valid
defense for willfulness; Willfulness requires that the person knew
the duty and willfully violated it.
In Cheek, Congress’ use of the word willfully was construed to
require a purposeful or knowingly mental state to the crime. At
trial, the judge incorrectly instructed the jury that an honest but
unreasonable mistake as to the legality of his conduct is not a
defense. By doing this, the judge was attaching a “negligent”
mental state to the defense.
In Cheek, the willfulness mens rea created another element of the
crime; since this element was not met, Cheek did not commit a
crime
In Baker, the willfulness mens rea was not part of the crime, so
there did not need to be willfulness to be convicted of the crime
Supreme Court said that Constitutional crimes have a willfulness
mens rea, while statutory crimes do not have a willfulness mens
rea
Reliance on false information provided by a lawyer, or even a
government prosecutor, is not allowed as a mistake defense for
criminal conduct
MPC § 2.04 Ignorance and Mistake
1. Section 2.04(1)(a) lays out the general rule that questions of
mistake of fact or non-governing law should be evaluated
based on whether the mistakes negate the mental state
required by the offense.
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2. Section 2.04(1)(b) takes into account the possibility that the
legislature may explicitly make the mistake of law or fact a
defense (as in Cheek), and allows such a defense in these
cases.
3. Section 2.04(2) says that if the facts the way the D thought
them to be would have constituted a lesser crime than the
more serious crime which he actually committed, he can
still be convicted of the more serious crime, but his
punishment should be that of the lesser crime.
4. Section 2.04(3) deals with mistake of governing law. It
provides a default rule akin to Baker – no mistake of
governing law – with two exceptions.
a. Section 2.04(3)(a) says if a statute has not been
made available or published, it excuses a mistake of
governing law.
b. Section 2.04(3)(b) carves out an exception for
reasonable reliance upon an official statement of
law, such as a statute or judicial opinion, that was
later found to be invalid or erroneous
H. Intoxication and Capacity for Mens Rea
 Intoxication is a question of what the jury gets to hear about the
defendant’s incapacity for mens rea due to alcohol or other mental
defects
 Hendershott v. People – def. claims he has brain dysfunction and
he lacked mens rea; this is different than People v. Grant because
Grant claimed he did not commit a voluntary act
 Hendershott said he did not have the mental state to recklessly
cause harm to his girlfriend; court ruled that since prosecution gets
to prove mens rea, def. should have opportunity to defend his
claim of a lack on mens rea; MPC supports this, saying that any
evidence relevant to mens rea should be allowed
 MPC §4.02(1) says evidence that the def. suffered from a mental
disease or defect is admissible whenever it is relevant to prove that
the defendant did or did not have a state of mind which is an
element of the offense
 State v. Cameron – voluntary intoxication can be used as a defense
to purpose or intent crimes; court found that Cameron did not drink
enough to make her incapable of the purpose needed
 One important implication of this is that drunken defendants are a
red herring; you treat drunk defendants the same as sober ones
 Evidence of intoxication can only come in as a mens rea defense
for purpose or knowing crimes
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MPC §2.08 – Intoxication
(1) Except as a provided in subsection 4, intoxication of
the actor is not a defense unless it negatives an element of
the offense. (Specific but not general)
(2) When recklessness establishes an element of the
offense, if the actor due to self-induced intoxication is
unaware of the risk of which he would have been aware
had he been sober, such unawareness is immaterial. (Allows
a person who is NEGLIGENT to be convicted of a crime
that requires a reckless mindset.)
(3) Intoxication does not, in itself, constitute mental
disease.
(4) Intoxication that is (a) not self-induced or (b) is
pathological is an affirmative defense if by reason of such
intoxication the actor at the time of his conduct lacks
substantial capacity either to appreciate its criminality or to
conform his conduct to the requirements of law.
I. Causation – MPC Section 2.03
 When do we know when conduct has caused the result?
 MPC 2.03 deals with traditional causation issues and transferred
intent
 Transferred intent: A shoots a gun, tries to hit B, but hits C and
kills C; MPC says that this is a causation problem because it deals
with the expected vs. the actual result
 Actual result: exact detail of what happened
 Designed or contemplated result: one that knowing/purposeful
actor tries to bring about
 Probable result: result that reckless/negligent actor would or should
expect to happen
 But-For Causation: but for the act, the result would not have
occurred
 Conduct is the cause of the result when “but for” is satisfied and
one of three tests is satisfied based on the mens rea needed:
 Knowing/purpose test – for conduct to have
knowingly/purposely caused result, the very specific
“actual result” must normally be “within the purpose or
contemplation of the actor”
 Reckless/negligence test – for conduct to have
recklessly/negligently caused result, the very specific
“actual result” must normally be “within the risk of which
the actor is aware” (for recklessness) or “should have
been aware” (for negligence)
 Strict liability test – “actual result” must be a ‘probable
consequence’ of the actor’s conduct”
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Commonwealth v. Rhodes – Rhodes sets fire, firefighter dies from
heart attack while fighting blaze; Rhodes gets convicted of murder;
appeals court says the jury should have been charged with an
instruction that this is a natural and continuous step in the sequence
of events
Commonwealth v. Root – court said that victim caused his own
death; since victim attempted to pass def. in a drag race, it was
victim’s own actions that caused his death
Stephenson v. State – def. abducts girl, she takes poison and
refuses medical treatment, he brings her back to her home, she dies
a few days later; def. argues that her suicide is an intervening
cause, but the court holds that because of what he did to her, her
becoming mentally irresponsible was a direct and natural result of
his conduct of kidnapping/rape
US v. Hamilton – victim pulls tubes out of his throat in hospital
and dies after fighting with the def.; court affirms the manslaughter
conviction because the victim died as a result of injuries that the
def. inflicted on him and pulling out the tubes was not a voluntary
act
Since criminal punishment is harsher than civil punishment, there
is a more narrow construction of causation
Retributive theory says that criminal law should have a more
narrow construction of causation because there needs to be a harsh
act which justifies the harsh punishment
Utilitarian theory says that causation rules cause people to be extra
careful in their acts, knowing that they could responsible for a wide
range of results
Year and a day rule: if person lives a year and a day after injuries
are sustained, the defendant is not liable for victim’s death if he
dies after that time; common law rule abolished in most States
II. Specific Crimes – Homicide, Rape, and Property Crimes
A. Homicide
 The common law distinguished between murder and manslaughter
 Murder was killing with “malice aforethought”
 Manslaughter was killing without “malice aforethought”
 1st degree murder is defined as an intentional killing with
premeditation
 2nd degree murder is knowingly, intentionally, or recklessly
manifesting extreme indifference to the value of human life
 MPC disregarded the distinction between 1st and 2nd degree murder
 MPC made one category of murder, one category of manslaughter
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United States v. Watson – def. killed policeman who had chased
him into an apt. after def. was caught trying to steal car; court ruled
that Watson killed with premeditation because there was a point
where he overpowered the victim and was able to escape and
instead chose to stay and shoot the policeman; to prove
premeditation, it has to be shown that the person contemplated
taking a human life and then acted on it
Killing with premeditation is deemed more culpable because one
has had time to think about and weigh the options and has still
chosen murder
The problem with premeditation is that it means that someone is
thinking about it; it does not distinguish between “good”
premeditation and “bad” premeditation
“Good” premeditation could be someone who deliberated and then
kills a relative or spouse to put the person out of his misery
MPC §210
 Criminal Homicide (§210.1) – A person is guilty of
criminal homicide if he purposely, knowing, recklessly,
or negligently causes the death of another human being;
Criminal homicide is murder, manslaughter, or negligent
homicide
 Murder (§210.2) – Criminal homicide constitutes murder
when it is committed purposely or knowingly, or it is
committed recklessly under circumstances manifesting
extreme indifference to the value of human life; Such
recklessness and indifference are presumed if the actor is
engaged in or is an accomplice in the commission of, or
an attempt to commit robbery, rape, or deviate sexual
intercourse by force or threat of force, arson, burglary,
kidnapping, or felonious escape
 Manslaughter (§210.3) – Criminal homicide constitutes
manslaughter when it is committed recklessly or a
homicide which would otherwise be murder is committed
under the influence of extreme mental or emotional
disturbance for which there is a reasonable explanation
and excuse. The reasonableness of such explanation or
excuse shall be determined from the viewpoint of a
person in the actor’s situation under the circumstances as
he believes them to be
 Negligent Homicide (§210.4) – Criminal homicide
constitutes negligent homicide when it is committed
negligently
B. Provocation and “The Heat of Passion” as a Mitigating Factor
 Intentional murder can be reduced to voluntary manslaughter if
def. acted in heat of passion
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Not self defense; self defense is an absolute defense
People v. Walker – def. killed during the a fight where victim
pulled a knife and cut him; def. did not start fight and was found
guilty of voluntary manslaughter because he killed in heat of
passion; court says part of culpability lies on the victim because he
started the fight
There are two steps in a killing: an anger step and an act step
In manslaughter, person is reasonably angered and acts
unreasonably
In murder, person is unreasonably angered and acts unreasonably
In self defense, person is reasonably angered and acts reasonably
Rowland v. State – man kills wife after finding her committing
adultery; common law rule is killing when responding to adultery
is manslaughter; decision has gender overtones, court talks about it
is the ultimate shame to man’s masculinity; Would same thing
happen if woman killed cheating husband?
Mere Words Doctrine: provocation must be more than merely
words for it to be a heat of passion killing (not accepted by the
MPC)
Ex Parte Fraley – def. killed a man who had killed his son and had
been acquitted 9 months earlier; court ruled against def., saying
that there was adequate cooling time and cooling time should be at
most a day or even a half day according to common law
Court did not deny that Fraley killed in heat of passion, they just
said that by the reasonable person standard, he should have cooled
From utilitarian standpoint, a person that has a long time to think
about killing is able to be deterred, while killing someone in the
heat of the moment is hard to deter
People v. Berry – def. killed wife after she constantly taunted him
about sleeping with another man; gov. used Fraley argument
because def. waited for 20 hours at their apt. before he killed; court
said that there is no mere words doctrine and no cooling time limit;
it is all up to the jury to decide
Berry shows that the modern approach to provocation is that if
someone can come up with a plausible provocation story and
convince the jury of it, he can get it mitigated to manslaughter
MPC 210.3(1)(b) uses very broad standards to explain when
murder is manslaughter because of provocation
According to MPC, the mental or emotional disturbance must be
extreme
The two steps in determining the extremeness are:
 Subjective: the mental or emotional disturbance must be
extreme; focuses on the influence of the extreme
disturbance on the act
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Objective: Was there a reasonable explanation or excuse
for the extreme disturbance? This is judge by the standard
of a person “in the actor’s situation” based on what the
def. thought he was seeing
MPC is focused on standards, not rules, even though there are both
objective and subjective parts
Who is the reasonable person, and do other factors such as race,
gender, age, etc. need to be considered when comparing def. to
reasonable person?
Government wants to look at purely objective point of view; def.
wants to look at a reasonable person that is closer to actual def.
Commentaries on MPC suggest critical inquiry is whether the
factor relates to “the ultimate issue of def.’s culpability”
Factors with no connection to def.’s culpability (included):
handicaps, extreme grief, shock from personal injury, etc.
Factors with connection to def.’s culpability (not included):
idiosyncratic moral views, “extremist” political views
C. Involuntary Manslaughter
 These are reckless and negligent homicides
 Most states only punish for gross negligence, which is a
heightened state of negligence
 MPC says only negligence is needed for punishment under
negligent homicide
 At a certain point recklessness becomes so reckless that it is treated
as a knowing crime; MPC calls this acting with “extreme
indifference to human life”
 State v. Williams – baby dies because parents (Native Americans
with minimal education) did not take it to a doctor for fear that
baby would be taken away from them; their omission to act was
the actus reus
 There is a general deterrence justification for punishment; it will
teach others in community to take their kids to a doctor when sick
 According to MPC, parents would not be guilty because there was
not a gross deviation from actions of a reasonable person
 From retributive standpoint, there is not a strong argument for
punishment; parents have already been punished by losing child
 Mayes v. People – def. is out of control and throws a beer glass at
wife; glass hits oil lamp and burns and kills wife
 In this case, court ruled that def. killed recklessly with an extreme
indifference to human life, so it can be punished like a knowledge
crime
 This type of reckless murder has a really extra substantial and
unjustifiable risk
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Once person is totally indifferent, for the person to know or not
know does not effect their culpability
D. Felony Murder Rule
 Killing in the commission of a felony is charged as murder (strict
liability)
 MPC rejects felony murder rule in its most broad incarnation;
almost every jurisdiction has a felony murder rule though
 Felony murder extends to accomplices such as get-away drivers
 People v. Stamp – robbers rob a store, out of shape owner has a
heart attack from stress of situation and dies; robbers are convicted
of 1st degree murder; court affirms conviction, saying that no
intentional act is necessary other than the attempt or actual
commission of the robbery for the felony murder rule
 Deterrence says that felony murder rule should be limited to cases
where death could have been avoided because it will make the
criminals more careful when committing a crime
 Felony murder rule is saying that because these people are
purposely setting out to commit another crime, they are more
culpable
 People v. Gladman – def. robbed store and then fled to a bowling
alley parking lot; cop found him there and def. shot and killed the
cop; def. argued that the felony had ended so it could not be felony
murder; court left the decision of when the felony ended to the jury
and advised them to look at the following aspects:
 Distance from location of felony
 Time interval between felony and killing
 If def. still had possession of the loot
 Whether cops were in close pursuit
 If def. had reached a place of temporary safety
 People v. Hickman – robbers are being chased by police in wooded
area; a cop shoots a man whom he thinks is a robber, but it is a
detective; robbers are convicted under felony murder rule; court
affirms because they looked to statutory comments of the felony
murder rule and found that the felon did not need to do the killing
 In this case it doesn’t make sense to hold defs. liable if purpose of
felony murder rule is to make felons act safer when they commit a
felony
 There is no deterrent value in felony murder rule when a person
other than the def. commits the killing
 MPC thought felony murder rule was really like a variation of
recklessness
 MPC explicitly recognizes felony murder as a type of Mayes v.
The People reckless murder, but it requires a fact-specific inquiry
into recklessness and extreme indifference to the value of human
life
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The question of recklessness and extreme indifference to the value
of human life becomes a jury question
Step-by-Step guide to MPC §210.2(1)(b)
 Step 1: For the most part, treat it like any other homicide.
Only treat these cases differently if you need to know
whether def. committed “reckless murder” under MPC
§210.2(b).
 Step 2: If it is relevant, ask if def. committed the
homicide while engaged in any of the following: robbery,
rape or deviate sexual intercourse by force or threat of
force, arson, burglary, kidnapping, or felonious escape.
 Step 3: If the answer is “yes”, next ask whether as a
whole it is clear that def. did not act recklessly or did not
act with extreme indifference to the value of human life.
If that is clear from the facts, the judge will not even let
the jury consider whether the homicide was “reckless
murder”
 Step 4: If it is not clear from the facts, the presumption
applies and the jury could find recklessness and extreme
indifference and convict on “reckless murder” under
MPC §210.2
Policy against felony murder rule
 Robbers in People v. Stamp have same culpability as
robbers who do an identical act except the owner does not
have a heart attack; it seems to go against retributive
principles to punish someone who commits a robbery and
the victim dies of a heart attack as someone who
deliberately plans a murder
 The felon-murder causes two separate harms and they
should be evaluated in terms of culpability separately
 Felony murder transfers intent in an inappropriate way;
we are taking the intent to commit a felony and
transferring it to the more serious crime of murder
So why then do we have the felony murder rule?
 It deters people from committing felonies in general
because they know that a death occurs in any way, they
will be charged with the more serious crime of felony
murder
 A felony resulting in a death is more serious than a felony
not resulting in a death and therefore deserves more
punishment under a retributive analysis
E. Death Penalty
 Common law was that the death penalty was available for anyone
who committed a felony
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Some states had death penalty system that allowed for jury to
decide if death penalty was appropriate; this system was shot down
by the Supreme Court in Furman v. Georgia because it was too
arbitrary and gave the jury no help in the decision
The Supreme Court has also shot down mandatory death penalty
systems where anyone convicted of a certain type of murder was
automatically given the death penalty
The current system is one of guided discretion; the jury still
decides if the death penalty is appropriate, but the court holds a
separate hearing to present all of the aggravating and mitigating
circumstances to the jury to help guide their decision
Death penalty is mainly retributive; there are certain situations
where the only type of vengeance that will satisfy the general
public’s needs is death (i.e. the Sniper, if he is caught)
Studies pointing out the high error rates in, and subsequent
reversals, of death penalty cases have been used by advocates and
opponents of the death penalty
Advocates say that the death penalty makes people take a closer
look at the case and make absolutely sure that the def. is guilty
Opponents say that too many innocent people are being given the
death penalty and that even though there are high reversal rates,
there must be plenty of innocent people that are eventually put to
death
McClesky v. Kemp – def. is black and killed a white cop during a
robbery; he attempts to use Baldus study, which says that black
defs. who kill white victims get the death penalty more than any
other combination and this is due to racism; def. is saying his
sentence violates the 8th and 14th Amendments
Supreme Court accepts the validity of the Baldus study but rules
that this is a case about McKlesy’s rights; McKlesky needed to
prove that his specific rights were violated in his case and not just
present this study; the Court says the Baldus study issue is one for
the legislature and not the courts
F. Rape
 Simplified elements: sexual intercourse (act), without consent
(circumstance), some use of force or resistance (circumstance only
in some jurisdictions)
 Common law required “utmost resistance”: victim was required to
resist rape with utmost resistance during the entire action; this
made rape convictions very hard in the past
 Courts had such high rape standards because pre-marital sex was
very taboo and courts thought women would try to claim rape to
get away from the stigma of pre-marital sex
 “Rape Shield” blocks def. from using victim’s past sexual history
as evidence of consent
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Brown v. State: victim was walking by def.’s farm; def. attacks and
forces sex; victim verbally refuses and tries to escape, but does not
cause any physical harm to the def.; court reverses rape conviction
because victim did not use utmost resistance to escape
Problem with resistance requirement is that it is looking at the
victim’s actions, when the focus should really be on the def.’s
actions
Commonwealth v. Berkowitz: def. and victim knew each other,
had previous flirty conversations; victim came to def.’s room and
they had sex; victim clearly said no; court rules that there was no
“forcible compulsion” on the def.’s part, so there was no rape
“Forcible compulsion” is not only physical force, but can also be
moral, psychological, or intellectual force used to compel a person
to engage in sex against the person’s will; def. was only leaning on
her and victim knew the door was unlocked, so there was no
forcible compulsion
Consent is a strict liability element for rape in some jurisdictions
and in common law
State v. Moorman: man thinks he is having sex with victim’s
roommate; victim is asleep during sex and thinks it is a dream;
rape conviction stands because victim was asleep and therefore
could not give consent or deny consent
Boro v. People: man claimed to be doctor and told woman that she
needed to have sex with him to be cured of a disease; court ruled
that fraud by inducement is not rape, but fraud of fact would be
rape
Fraud of fact would be if she consented to a medical procedure that
did not involve sex; here, she consented to sex, so there is no rape
The fraud must involve the substantial matter, i.e. sex, in the
matter
People v. Minkowski: doctor says he is using a medical instrument
on victim, but is really having sex with them; he conviction is
upheld because that is fraud in the fact; victim consented to a
medical treatment, not sex
Coker v. Georgia: escaped convict who was serving a life sentence
rapes a woman; he was given death penalty; Supreme Court
overrules, saying that it is a violation of the 8th Amend. because the
punishment does not fit the crime; dissent says that rape is very
serious and Georgia needs a way to punish him because he was
already serving life in prison
MPC on Rape § 213.1
(1) Rape. A male who has sexual intercourse with a female not his
wife is guilty of rape if:
(a) he compels her to submit by force or by threat of
imminent death, serious bodily injury, extreme pain or kidnapping,
to be inflicted on anyone; or
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(b) he has substantially impaired her power to appraise or
control her conduct by administering or employing without her
knowledge: drugs, intoxicants, or other means for the purpose of
preventing resistance; or
(c) the female is unconscious; or
(d) the female is less than 10 years old.
Rape is a felony of the second degree unless (i) in the course
thereof the actor inflicts serious bodily harm upon anyone, or (ii)
the victim was not a voluntary social companion of the actor upon
the occasion of the crime and had not previously permitted him
sexual liberties, in which cases the offense is a felony of the first
degree.
(2) Gross sexual imposition. A male who has sexual intercourse
with a female not his wife commits a felony of the third degree if:
(a) he compels her to submit by any threat that would
prevent resistance by a woman of ordinary resolution; or
(b) he knows that she suffers from a mental disease or
defect which renders her incapable of appraising the nature of her
conduct; or
(c) he knows that she is unaware that a sexual act is being
committed upon her or that she submits because she mistakenly
supposes that he is her husband.
G. Theft Crimes
 There are four types of offenses:
 Theft: taking property of another with intent to deprive
 Robbery: theft plus injury to a person or risk of injury
 Burglary: entering a building with intent to commit a
crime inside
 Trespass: entering a building or land of another without
permission; usually a civil issue, sometimes a minor
criminal issue
 Reasoning for punishing theft:
 Need to deter, punish on retributive grounds; interference
with property not as bad as interference with person, but
still worth punishing criminally
 Property increasingly valuable
 Beyond money value, property can have sentimental
value
 The essence of every theft crime is purposely obtaining property of
another with purpose to deprive
 All thefts are equivalent; MPC says seriousness of offense depends
on the value of the property taken
 Commonwealth v. Mitchneck: def. is mine owner who agrees to
pay employees by paying a store and allowing the employees to
purchase from store on credit; man does not pay the store; court
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says he is not taking money from the employees because they
never had it; this is really a civil matter of owing a debt
Rex v. Chisser: def. looks at an item in a store, and then runs out of
store without paying; court says that def.’s act of running away
shows his intent of theft
Deprive in MPC terms is defined as taking permanently or for an
extended period of time as to devalue the property; if def. returns
the item after running out of the store, there is no theft
Durland v. US: def. had investment scheme where he was
promising big returns, but was just stealing money; court says that
def. was acting in bad faith the entire time; if he had been acting in
good faith, he wouldn’t have been guilty
State v. Sein: def. slides victim’s purse out from under her arm;
court held that there was no robbery because force required by
statute was not present
MPC requires infliction of serious bodily injury or at least threat of
serious bodily injury for robbery
Commonwealth v. Kingsbury: def. broke into apt. to assault young
boy; two problems: not sure if apt. is “dwelling” because tenants
had not fully moved in and not sure if crime was committed at
night; court concludes that jury could have reasonably concluded it
was night and the apt. was a dwelling because the people had the
keys to the place and where the ones who caught the def.
MPC defines night as 30 mins. past sunset to 30 mins. before
sunrise
MPC on Theft § 223
 Theft by Taking (§ 223.2): a person is guilty of theft if
he unlawfully takes, or exercises unlawful control over
movable property of another with purpose to deprive him
thereof
 Theft by Deception (§ 223.3): a person is guilty of theft
if he purposely obtains the property by deception
 Theft by Extortion (§ 223.4): a person guilty of theft if
he obtains property of another by threat
 Theft of Property Lost (§ 223.5): a person who comes
into control of property of another that he knows to have
been lost is guilty of theft if he fails to take reasonable
measures to return the property to the owner
 See § 223.0 for theft definitions
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III. Defenses
A. Defenses Generally
 Def. can claim that all of the elements and mens rea are satisfied,
yet under the circumstances a defense applies
 There are four defenses: self-defense, necessity, duress, and
insanity
 Excuse: the act was bad, but the def. is not morally blameworthy in
context
 Justification: the act was a positive thing in context
 Justification arguments are more utilitarian, excuse arguments are
more retributive
B. Self-Defense
 People v. La Voie: def. was driving home from work, four drunk
men in another car were bumping him; def. got out of car with a
gun and shot one man when he walked toward def. and made
verbal threats; his self-defense claim is successful because he had a
reasonable belief that he was in danger of great bodily harm
 Distinction between self-defense and provocation is that selfdefense is a complete defense and provocation just gets a murder
charge dropped to manslaughter
 People v. Goetz: def. is on subway and shoots 4 kids when the
confront him and ask him for money; question is whether to look at
what a reasonable person in the actor’s situation thinks or what
Goetz actually thought; court uses objective standard because a
subjective standard would allow citizens to set their own standards
for the permissible use of force
 MPC says self-defense must be person-to-person
 MPC limits punishment to what mens rea person had if there is a
mistake (i.e. if belief is negligent, person is charged with negligent
crime)
 To use deadly force, person must believe that he needs to protect
himself from death, serious bodily harm, kidnapping, or rape
 You can’t use self-defense claim if you are the aggressor in the
situation
 There is a retreat rule in the MPC, but it only applies to deadly
force
 If a person knows he can retreat safely, he cannot use deadly force
 You never have to retreat from your home or workplace
 People v. Ceballos: def. set up a trap gun to protect his garage from
theft; two teens tried to break in and one was shot; court rules that
self-defense does not apply here; trap gun could not when deadly
force was needed; trap gun is too dangerous
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Utilitarian theory says deadly force cannot be used for defense of
property because saving a life is better than losing some property
Retributive theory says that it is better to have a morally bad
person killed than an innocent victim
MPC on Self-Defense (§ 3.04)
 (1) Subject to the provisions of this section and of 3.09,
the use of force upon or toward another person is
justifiable when the actor believes that such force is
immediately necessary for the purpose of protecting
himself against the use of unlawful force by such other
person on the present occasion.
 (2) Some limitations
(b)(i) you can not be the provoker.
(b)(ii) you can retreat or surrender possession of a
thing to a person, or complying with a demand that
he abstain from any act which he has no duty to
take, except that,
(1) not obliged to retreat from your dwelling
house or place of work, unless you are the
aggressor or are being attacked by a person
who also works there.
(2) Officers
(c) unless in a or b, the person can estimate the amount of
force he needs to use to protect himself under the
circumstances as he believes them to be.
MPC on Self-Defense (§ 3.09)
 (1) The justification afforded by 3.04 is unavailable when
(a) the actor’s belief in the unlawfulness of the force
or conduct against which he employs protective
force or his belief in the lawfulness of an arrest
which he endeavors to effect by force is erroneous;
and
(b) his error is due to ignorance or mistake as to the
provisions of the Code, any other provision of the
criminal law or the governing legality of arrest.
 (2) When the actor believes that the use of force upon or
toward the person of another is necessary for any of the
purposes for which such belief would be a justification in
the code, but the actor is reckless or negligent in having
such a belief or in acquiring material facts to the
justifiability of this use of force, the justification afforded
by those sections is unavailable in a prosecution for an
offense for which recklessness or negligence suffices to
establish culpability
 (3) When the actor is justified under the code but
recklessly or negligently injures innocent persons, the
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justification is unavailable in a prosecution for
recklessness or negligence toward innocent persons.
C. Necessity Defense
 Necessity deals with a generalized balance, the choice for a lesser
of two evils
 The def. concedes that his act was a crime, but the result was
positive
 The evil committed by the def. has to be lesser than the evil
prevented by the actions
 Necessity is more utilitarian than retributive
 Necessity is a slippery slope; if you let one case go, it will open it
up for more defs. to use the necessity defense
 At common law, necessity was allowed when there was a threat of
immediate injury plus absence of reasonable alternatives
 The Queen v. Dudley & Stevens: four men shipwrecked; two of
the men decide to kill and eat one of them men who is very sick;
the men are rescued shortly after but would not have survived
without eating the dead man; court acknowledges necessity
defense, but cannot justify a homicide in this situation
 From a utilitarian standpoint, men were justified because their
actions resulted in 1 death instead of 4 deaths
 From a retributive point of view, they are culpable because they
put their lives above the life of the victim; in general if defs. have
no moral culpability, retributive theory says that they should not be
punished
 People v. Warshow: protestors block entrance to nuclear power
plant; they are doing this to put nuclear power “on trial”; they
claim necessity because they say that the plant could explode if
started up; the court ruled that the danger wasn’t imminent, so
necessity could not be used as a defense; concurrence took a policy
view and said that jury shouldn’t be allowed to decide and issue
that was already decided on by the legislature
 Just as in self-defense, reckless and incorrect beliefs can support
liability for reckless crimes, negligent beliefs for negligent crimes,
etc.
 MPC on Necessity (§ 3.02)
 (1) Conduct that the actor believes to be necessary to
avoid a harm or evil to himself or to another is justifiable,
provided that:
(a) the harm or evil sought to be avoided by such
conduct is greater than that sought to be prevented
by the law defining the offense charged; and
(b) neither the Code nor other law defining the
offense provides exceptions or defenses dealing
with the specific situation involved; and
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(c) a legislative purpose to exclude the justification
claimed does not otherwise plainly appear
(2) When the actor was reckless or negligent in bringing
about the situation requiring a choice of harms or evils or
in appraising the necessity of his conduct, the justification
afforded by this section is unavailable in a prosecution for
any offense for which recklessness or negligence, as the
case may be, suffices to establish culpability
D. Duress Defense
 The duress defense recognizes that a person who is effectively
“forced” to commit a criminal act lacks moral culpability for the
act, and need not be deterred from it
 Def. has not committed the act under his own free will
 This is related to actus reus because the def. is claiming that the act
was not voluntary
 Duress is like necessity because there is a similar “lesser of two
evils” balance going on; it is better to go along and do the crimes
than to resist
 Duress is like self-defense because it is a response to unlawful
force by another; the difference is the direction of where the force
is used
 State v. Crawford: def. owned a man money for drugs; man wants
def. to commit some robberies to pay him back; def. first robs a
woman and then kidnaps a man and takes him on a crime spree;
def. was told that if he did not repay man, the man would have his
family killed; court says the required elements of imminence and
continuous compulsions were not met to satisfy duress; def. also
had ability to escape and go to police but didn’t
 Duress is not available to defs. like Crawford who get themselves
in situations where they would be subject to duress
 Duress is available to someone who is not really responsible for his
acts and can’t be deterred (not morally culpable)
 Someone of reasonable firmness can make a cost benefit analysis
and act in his best interests
 United States v. Contento-Pachon: def. swallows balloons of
cocaine and brings them into US; his defense is that if he didn’t do
it, the drug cartel would kill him and his family; he claims he was
being watched during the entire trip; majority here says duress
defense should be a jury question; dissent says that the threat from
the cartel was not immediate enough
 Duress is limited to threats against the person, and not against
property, reputation, etc.
 MPC looks at specific aspect of how firm person was in resisting
coercion when looking at a reasonable person
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MPC says that if def. is reckless in getting himself in situation
where duress would be probable (Crawford), he cannot use the
duress defense at all
MPC says that duress and necessity should be treated
independently
MPC on Duress (§ 2.09)
 (1) It is an affirmative defense that the actor engaged in
the conduct charged to constitute an offense because he
was coerced to do so by the use of, or a threat to use,
unlawful force against his person or the person of
another, that a person of reasonable firmness in his
situation would have been unable to resist.
 (2) The defense provided by this section is unavailable if
the actor recklessly placed himself in a situation in which
it was probable that he would be subjected to duress. The
defense is also unavailable if he was negligent in placing
himself in such a situation, whenever negligence suffices
to establish culpability for the offense charged.
 (3) It is not a defense that a woman acted on the
command of her husband, unless she acted under such
coercion as would establish a defense under this section.
 (4) When the conduct of the actor would otherwise be
justifiable under § 3.02 (Necessity), this section does not
preclude such defense.
E. Insanity Defense
 The mentally ill are more likely than most to commit crimes, but it
may seem like the illness, not the def., is responsible
 At some point it seems unfair to treat the mentally ill the same as
normal people
 Deterrence: someone who lacks the capacity to know what is going
on can’t be deterred
 Incapacitation: both prison time and commitment to a mental
hospital will incapacitate and prevent crime
 Rehabilitation: insanity verdict leads to treatment; best chance for
rehabilitation
 Retributive: the less the person is aware of the wrongfulness of
what he is doing, the less culpable the person is for what he does
 Jurors are skeptical to believe the insanity defense; it rarely works
 M’Naghten Test (1843): Def. not responsible at the time of the
act, he:
 Was laboring under a defect of reason, a disease of the
mind, so that either
(A) he did not know the nature and quality of the
act he was doing, or
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(B) if he did know the nature and quality of the act,
he did not know that the act was wrong
Irresistible Impulse Test (19th Cent.)
 Def. was not responsible, even if he knows that what he
did was wrong, if he has a “disease of the mind” that was
the sole (or primary) cause of the act, and that denied him
the power to choose not to commit the act
Durham Rule (1954)
 An accused is not criminally responsible if his unlawful
act was the product of a mental disease or mental defect
 Juries to be guided by wider horizons of knowledge
concerning mental life (rarely adopted)
MPC looks at two issues: Does the person recognize that he is
committing the act and can he appreciate the wrongfulness of the
act
MPC test is more favorable to a defendant than the M’Naghten
Test
Big divide between the MPC and M’Naghten is that the MPC
includes the broader volitional prong
MPC on Insanity (§ 4.01)
 (1) A person is not responsible for criminal conduct if at
the time of such conduct as a result of mental disease or
defect he lacks substantial capacity either to appreciate
the criminality (wrongfulness) of his conduct or to
conform his conduct to the requirements of law.
 (2) As used in this Article, the terms “mental disease or
defect” do not include an abnormality manifested only by
repeated criminal or otherwise anti-social conduct
Federal Test, 18 U.S.C. § 17
 Defendant can get NGI verdict if “as the result of a severe
mental disease or defect” he was “unable to appreciate
the nature and quality or wrongfulness” of his acts
 This was enacted in response to John Hinckley being
found NGI after he shot Regan)
People v. Serravo: man stabbed his wife because thought he had a
special relationship with God and God wanted him to build a
sports complex; his wife did not support him in this and he felt that
he needed to kill her to accomplish his goals; question is whether
to go by the standard of moral wrong or legal wrong; court says
that question of legal wrong is too sterile and moral wrongfulness
really goes toward the issue of culpability and insanity; court says
that moral wrong should be judged by the objective standard of
what society thinks is a moral wrong
Problem with Serravo case is that the moral standards of a
Colorado jury may be different than moral standards of other
places
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For the NGI defense to be available, the def. has to be diagnosed
with a mental disease or defect
IV. Attempt
A. Generally
 Inchoate Crimes: partial or unfinished crimes
 Inchoate crimes are not separate crimes, but rather separate ways
of being held liable for crimes
 Attempt is when defendant tries to complete the crime, but for
some reason does not
 Felonious intent is not enough for attempt; there must be an overt
act to display the intention
 State v. Lyerla: man shot at some girls in another car; he hit and
killed one girl and missed the others; he is charged with both
murder and 2nd deg. attempted murder; court reverses the 2nd deg.
attempted murder charge, saying that you can’t intend to do
something recklessly
 There are a lot of risky activities, but that doesn’t mean that
engaging in any risky activity is an attempt; legislature can make
specific activity a crime if it wants to (i.e. drunk driving)
 General rule is that purpose is required for attempt
 People v. Rizzo: defs. were driving in a car with a gun searching
for a specific man to rob; they were caught and charged with
attempted robbery; their convictions were overturned because their
acts were too remote to the crime to constitute an attempt
B. Policy/Theory
 Problem with attempt crimes is how broadly or narrowly to define
the actus reus and the mens rea
 We don’t want the law to intervene too soon; it should criminalize
really dangerous and culpable activity, but not everything
surrounding it
 We don’t want the law to intervene too late; don’t want to give bad
guys a way of evading criminal liability just because they haven’t
been caught precisely in the act
 Raises concerns about punishing people without fault (because no
harm has been committed.) Poses the retributive worry of
punishing for thoughts, because we have to prove INTENT to
cause harm, but no harm.
 A utilitarian would not have a problem punishing the attempter
because his thoughts and the attempt prove that he is dangerous.
 The retributive thinker might punish attempts because they exhibit
bad character, but they would also insist that punishment be for
wrongdoing. He would say that the attempter should not be
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punished until his conscience has been given an opportunity to
check those evil desires.
Utilitarians will also argue that punishing attempts maximizes
deterrence, because deterrence is most effective when punishment
is certain.
C. Impossibility Defense
 Here, the def. is trying to commit a crime, but there is no way he
will commit the crime because an attendant circumstance unknown
to the def. prevents him from committing the crime
 There are two types of impossibility:
 Pure legal impossibility: def. thinks his actions constitute
a crime, but it turns out not to be a crime
 Hybrid legal/factual impossibility: def. is mistaken on a
fact or non-governing law that makes the crime
impossible
 Pure legal impossibility is a always a defense because it is not
really an impossibility issue
 Impossibility is parallel to mistake law
 Pure legal impossibility = mistake of governing law
 Hybrid legal impossibility = mistake of non-governing
law
 Factual impossibility = mistake of fact
 People v. Thousand: def. sends obscene pictures to what he thinks
is a young girl, but it is really an undercover policeman; he claims
impossibility when he is charged with attempted distribution of
obscene material to a minor; court rejects the impossibility
defense; Thousand was just as culpable even if the young girl was
not a young girl; he had the mens rea and committed the act
 Big question is how to define attempt? Attempt can be seen
subjectively (what the actor thinks) and objectively (what is really
happening)
 From a utilitarian standpoint, the impossibility defense is bad
because without punishment there can be no deterrence or
incapacitation and the def. is free to try again to commit the crime
 Retributive argument for impossibility says that there can be no
punishment if no social harm actually occurred
 MPC rejects impossibility defense (except for pure legal
impossibility)
D. Impossibility Brain Teaser
 Law is that it is a crime to distribute obscene materials to anyone
under 18
 The mens rea attached to the age element is knowing
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Hypo 1: def. knows the age limit for the crime is 18
Def. believes recipient is 17
Def. believes recipient is 19

Age of recipient is 19
Guilty of crime
Not Guilty (Mistake of Fact)
Guilty of attempt
Not Guilty
Hypo 2: def. thinks the age limit is 16 instead of 18
Def. believes recipient is 17
Def. believes recipient is 19

Age of recipient is 17
Age of recipient is 17
Age of recipient is 19
Guilty (mistake of nongoverning law)
Not Guilty (Mistake of Fact)
Guilty of attempt
Not Guilty
Hypo 3: def. thinks the age limit is 21 instead of 18
Def. believes recipient is 17
Def. believes recipient is 19
Age of recipient is 17
Age of recipient is 19
Guilty of crime
Not Guilty (Mistake of Fact
for crime and pure legal
impossibility for attempt)
Guilty of attempt
Not Guilty (Pure legal
impossibility)
E. The MPC on Attempt (§ 5.01)
(1) Definition of Attempt. A person is guilty of an attempt to
commit a crime if, acting with the kind of culpability otherwise
required for commission of the crime, he:
(a) purposely engages in conduct that would constitute the
crime if the attendant circumstances were as he believes
them to be; or
(b) when causing a particular result is an element of the
crime, does or omits to do anything with the purpose of
causing or with the belief that it will cause such result
without further conduct on his part.
(c) purposely does or omits anything which, under the
circumstances as he believes them to be, is an act or
omission constituting a substantial step in a course of
conduct planned to culminate in his commission of the
crime.
(2) Conduct which may be held substantial step. Conduct is not a
substantial step unless it is strongly corroborative of the actor’s
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criminal purpose. Without negating the sufficiency of the other
conduct, the following, if strongly corroborative of the actor’s
criminal purpose, shall not be held insufficient as a matter of law.
(a) lying in wait
(b) enticing the victim to go to a place
(c) reconnoitering the place contemplated for commission
(d) unlawful entry of structure, vehicle, enclosure where the
crime will take place.
(e) possession of materials with no other lawful purpose
(f) possession of material with no lawful use for the actor
(g) soliciting an innocent agent to engage in conduct
constituting an element of the crime.
(3) Conduct designed to aid another in commission of a crime. A
person who engages in conduct designed to aid another to commit
a crime that would establish his complicity under § 2.06 if the
crime were committed by such other person, is guilty of an attempt
to commit the crime, although the crime is not committed or
attempted by such other person
(4) Renunciation of Criminal Purpose. You can raise it as an
affirmative def. Renunciation is not complete if you are simply
postponing it to a time when circumstances will be better.
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§ 5.01(1) requires that the def. has the mens rea for each of the
elements required for the substantive offense
§ 5.01(1)(a) says that the def. has to have purpose and complete the
attempt and there is no impossibility defense
§ 5.01(1)(b) says the def. must have purpose or belief with respect
to causing death to be guilty of attempted murder
§ 5.01(1)(c) says that the line between mere preparation and
attempt is governed by the “substantial step” test (i.e. the act is a
substantial step in a course of conduct planned to culminate in the
commission of the crime)
§ 5.02(2) says that the substantial test must be strongly
corroborative of the actor’s criminal purpose; it also lists acts
which may constitute substantial steps
§ 5.01(4) allows for renunciation; def. must manifest a complete
and voluntary renunciation of his criminal purpose to be found not
liable
Renunciations have to be for good moral reasons
§ 5.05(1) grades attempts like the substantive offense, except that
attempts of 1st degree felonies are 2nd degree attempts
§ 5.05(2) says that if the conduct is so inherently unlikely to result
in the crime that there is no public danger warranting the severity
of punishment, the court can impose a lower sentence or dismiss
the prosecution altogether
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Actus Reus
Summary of MPC Attempt
Substantial Step that strongly corroborates
criminal purpose
Mens rea w/r/t conduct elements
Mens rea w/r/t result elements
Mens rea w/r/t attendant circumstance
elements
Purpose (§ 5.01(1)(a),(c))
Purpose or belief (§ 5.01(1)(b))
Whatever the substantive offense requires
Summary of MPC Safety Valves
Abandonment
Def. abandons effort, complete and
§ 5.01(4)
voluntary renunciation of criminal purpose
Inherent Unlikelihood
If attempt is inherently unlikely, not
§ 5.05(2)
enough public danger to warrant, either
lower sentence or dismissal
V. Group Crimes
A. Solicitation
 A tells or asks B to commit a crime
 Solicitation is unilateral, it doesn’t matter about the other side, as
long as you are trying to solicit someone
 People v. Lubow: defs. ask man to help in a criminal pyramid
scheme; man reports them to the police; they were convicted and
the conviction was upheld; their actus reus was the act of asking
and the mens rea requirement of purpose was met
 Brandenburg v. Ohio: def. was shown on film talking about KKK
actions; he was talking about revenge against Blacks and Jews;
Supreme Court reverses his conviction, saying that the advocacy
must be directed to inciting or producing imminent lawless action
and is likely to induce or produce such actions; def. was speaking
generally and was not directing his words to specifically produce
imminent criminal actions
 Brandenburg developed the “True Threat” doctrine: speech must
be encouraging a true crime that will be imminent
 MPC on Solicitation (§ 5.02)
 (1) A person is guilty of solicitation to commit a crime if
with the purpose of promoting or facilitating its
commission he commands, encourages or requests
another person to engage in specific conduct that would
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constitute such crime or an attempt to commit such crime
or which would establish his complicity in its
commission or attempted commission.
 (2) It is immaterial under Subsection (1) of this Section
that the actor fails to communicate with the person he
solicits to commit a crime if his conduct was designed to
effect such communication.
 (3) It is an affirmative defense that the actor, after
soliciting another person to commit a crime, persuaded
him not to do so or otherwise prevented the commission
of the crime, under circumstances manifesting a complete
and voluntary renunciation of his criminal purpose.
For renunciation under the MPC, the def. must persuade the person
not to commit the crime or he must prevent the commission of the
crime
There is also the inherent unlikelihood safety valve (§ 5.05) for
solicitation; if the crime is inherently unlikely, the def. can get a
reduced sentence or the charges can be dropped altogether
Solicitation has been highly criticized for punishing people too
early in the act; you are punishing for mere speech
It does show culpability and bad moral character though because
you are manifesting your bad ideas to others and giving them
direction in committing crimes
B. Accomplice Liability (MPC § 2.06)
 When A “aids or abets” B in B’s criminal activity, A assumes the
criminal liability of B
 A failed effort at complicity is an attempt (i.e. A tries to help B
commit offense, but B does not; under § 5.01(3), A is guilty of
attempt)
 According to MPC § 2.06(3), the actus reus is: soliciting another,
aiding another, or agreeing to aid another in the planning or
commission of the offense
 The actus reus for complicity is very broad; the difficult question is
mens rea
Mens Rea of Accomplice Liability
Conduct Elements
Purpose of promoting or facilitating the
commission of the offense § 2.06(3)(a)
Result Elements
Whatever the substantive offense requires
§ 2.06(4)
Attendant Circumstance Elements
Left unresolved by the MPC drafters
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The key is the mens rea of the accomplice with respect to the
principal offense
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Murray v. Commonwealth: Murray stands and watches Grace steal
a man’s wallet; court says that Murray’s act of standing real close
to the man intimidated the man and helped Grace; Murray acted
with purpose towards the principal offense
Pace v. State: Pace was driving car with family and a friend; they
picked up a hitchhiker and the friend pulls out a knife and robs the
hitchhiker; court reversed Pace’s conviction because he lacked the
mens rea associated with the principal crime; he was not intending
to further the crime
State v. Etzweiler: def. loaned his car to Bailey when he knew that
Bailey was drunk; Bailey got into an accident and killed 2 people;
def. is charged with negligent homicide as an accomplice; court
reverses his conviction because being an accomplice requires
purpose and Etzweiler could not intentionally aid Bailey in a crime
that Bailey was unaware he would be committing
MPC § 2.06(6)(c) allows for renunciation; it is a looser
renunciation standard, only requiring the person to make proper
effort to stop the crime
Asking the accomplice to stop the crime is asking too much; just
taking steps to stop the crime, such as telling the police, is enough
We require the high standard of purpose for mens rea because
accomplice liability is a serious thing; it says that the accomplice
becomes the person who has committed the crime for punishment
purposes
By making accomplices just as liable as the people who actually
commit the crime, you deter them from becoming involved in
criminal activity
Retributive theory says that people should get just desserts for their
acts, and since the accomplice did not commit the act, he should
not be punished for it; still, the accomplice is showing bad moral
character and deserves punishment
C. Conspiracy
 Conspiracy is an agreement to commit or aid in criminal acts
 State v. Verive: def. was paid to go threaten and beat up a guy;
court rules that the conspiracy is separate from the attempt; the
actus reus for conspiracy is the agreement
 It is extremely difficult for gov. to prove conspiracy if they don’t
have anyone from the conspiracy to testify against his partners; this
is a justification for broad conspiracy law
 Strong incentive for criminals is to plead guilty first and get a good
deal by ratting out the entire group
 People v. Lauria: def. was running an answering service; he was
taking calls for people, some who were prostitutes; he knew that
some of his customers were prostitutes; question is whether he had
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both knowledge and intent to promote the crime; court found he
had knowledge but lacked the intent to promote the crime
Court gives three situations where intent can be inferred from
knowledge: (1) inflated charges for service or goods (2) sale of
goods with no legitimate use (3) sale in inflated amounts
The more extraordinary the criminal enterprise is, the more
knowledge will infer intent
Pinkerton Rule: any conspirator is liable for a crime that is
committed by a co-conspirator; the crime must be reasonably
foreseeable as a necessary or natural consequence of the unlawful
agreement
United States v. Diaz: def. set up a drug deal; the buyer was an
undercover agent; the seller had a gun with him; def. is charged
with carrying a gun during a drug transaction even though he did
not have the gun; court says that it is reasonably foreseeable that
someone would carry a gun during a drug transaction
Pros of Pinkerton:
 Deters criminals from joining conspiracy
 Conspiracies are dangerous, so we need a powerful
doctrine
 Gives government another powerful means to get smalltime criminals to plea and turn against the bigger players
in the conspiracy
Cons of Pinkerton:
 Once the person has joined the conspiracy, if one person
is going to carry a gun, everyone can carry a gun because
they are all liable anyways
 Accomplice liability can cover this
 Conspirators are not culpable for actions of their partners
MPC on Conspiracy (§ 5.03)
 Actus reus required is an agreement plus an overt act my
at least one co-conspirator; the overt act is not needed if
the crime is a felony of the 1st or 2nd degree (such a
murder or manslaughter)
Mens Rea of Conspiracy
Conduct Elements
Purpose of promoting or
facilitating the commission
of the offense (§ 5.03(1))
Result Elements
Purpose of promoting or
facilitating the commission
of the offense (§ 5.03(1))
Attendant Circumstance
Left unresolved by MPC
Elements
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
Renunciation is allowed if it is complete and voluntary
and the def. thwarts the success of the conspiracy by
taking action sufficient to prevent consummation of the
criminal objective
Comparing the Inchoates: Actus Reus
Substantial Step, strongly corroborative
Attempt, 5.01
Commands, encourages, requests specific
Solicitation, 5.02
conduct
Solicits, aids, agrees, attempts to aid
Complicity, 2.06
Agreement, plus overt act for lesser crimes
Conspiracy, 5.03
Conduct
Elements
Attendant
Circumstance
Elements
Result
Elements
Comparing the Inchoates: Mens Rea
Attempt, 5.01
Solicitation,
Complicity,
5.02
2.06
Purpose
Purpose
Purpose
Whatever
statute requires
Purpose or
belief
Purpose
(awareness,
hope or belief)
Purpose
Conspiracy,
5.03
Purpose
Left unclear
Left unclear
Whatever
statute requires
Purpose
Comparing the Inchoates: Renunciation
Abandons or otherwise prevents, complete
Attempt, 5.01
and voluntary renunciation
Persuades person solicited not to do or
Solicitation, 5.02
otherwise prevents commission, complete
and voluntary
Terminates, gives timely warning to police
Complicity, 2.06
or otherwise makes proper efforts
Thwart the success, complete and voluntary
Conspiracy, 5.03
renunciation
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