CRIM LAW OUTLINE – PROFESSOR BERES – FALL 2005
PHILOSOPHICAL APPROACHES TO PUNISHMENT
Utilitarianism:
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Basic principle: Maximize social welfare (i.e., the well-being of society)
o Cost vs. benefit approach to punishment:
 Punish if the social benefits outweigh the costs to society.
Basic problem: Is it right to punish someone who does not deserve to be punished if
doing so would be beneficial to society?
Early proponents: Bentham, Mills
Bentham:
 Four cases where punishment is wrong.
(1)
Where the criminal act itself causes no harm to society, or the social benefit
gained outweighs the social harm of the act (e.g., killing in self-defense).
(2)
Where the punishment would not deter.
(3)
Where harm can be prevented by means other than punishment (e.g., after school
programs).
(4)
Where punishment does more harm than good (e.g., disproportionately harsh
punishment).
 Cost to society of wrongful convictions is high.
Retribution:
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Basic principle: Society should punish if, and only if, the person deserves it.
o Impact on society and whether punishment would promote social welfare are
irrelevant.
Basic problem: How does one assess or determine blameworthiness?
Levitt:
 Econometric study on the decline in the crime rate (43% decline).
 Crime rate has gone down as a result of more P & S, more police, and legalized abortions
(If abortion was illegal, poor people would not carry out abortions (they couldn’t go
somewhere where it was legal), so they would have babies who would grow up and
commit more crimes).
 Stronger economy, better police strategy, gun control laws have not been factors in the
decline.
Murphy:
 Vast majority of inmates are members of the lowest 15% income level.
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PURPOSES OF PUNISHMENT
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Courts use the purposes of punishment to:
o Interpret statutes; and
o Determine appropriate punishments.
Deterrence:
Specific deterrence: Deters the individual who is punished from committing crimes in the future.
General deterrence: Deters other individuals from committing crimes.

Deterrence is premised on the assumption that individual actors do a cost/benefit analysis
before committing crimes. If the potential benefits of committing a crime outweigh the
potential costs, the actor will likely commit the crime.
o Expected punishment = S x P
 S = severity of sanction
 P = probability of apprehension
 What matters more is not the actual probability, but the perceived
probability of apprehension.

Ways to increase deterrence:
o Longer/harsher sentences (e.g., Three Strikes laws)
o Increase the probability of apprehension (e.g., hire more police officers)
o Change offender’s perception of S & P
Marginal Deterrence: More serious crimes are punished more severely to encourage people to
commit lesser crimes.
Wilson:
 People respond to rewards/incentives and punishment.
o Criminals are more likely to commit a crime that yields a lower probability of
getting caught.
 Changes in the economy (e.g., unemployment rate) do not affect the crime rate.
Kahan:
 Visible social disorder leads to more crime and more serious crimes.
o “Broken Windows” analogy: An empty house in the neighborhood sits untouched
for months. Once one person breaks a window, all of the other windows get broken
as well.
o Once one window is broken, others come to assume that no one cares and that there
is a lack of law enforcement.
 Therefore, if you cut down on public disorder crimes, you will also decrease more serious
crimes.
o Public disorder crimes include such things as vandalism, graffiti, etc.
o Some practical support for this theory found in NY.
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Criticisms/Drawbacks of Deterrence:
 Are negligent conduct or inadvertent acts deterrable?
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Rehabilitation:
Reduce crime through rehabilitation, on the presumption that once reformed, a convict is less
likely to commit a crime he otherwise would have.

Under the theory of rehabilitation, the purpose of incapacitation is to rehabilitate.
Therefore, prisons are needed in order to be able to carry out rehabilitation programs.
Incapacitation:

Basic principle: Lock people up so they can’t commit any more crimes.
o But disregards the fact that people can still commit crimes in prison.
Wilson:
 Three assumptions underlying theory of incapacitation:
o If not in prison, criminals would be committing more crimes.
o Offenders are not immediately “replaced” by other offenders.
 Replacement may occur in organized crime and drug rings (but not in
gangs).
o Prisons are not “schools” of crime.
Selective Incapacitation: long prison terms to those people who would be high-rate criminal
offenders if they weren’t in prison.
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ELEMENTS OF A CRIMINAL DEFENSE
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Actus Reus – An overt criminal act or omission; presumes voluntariness of conduct;
always required.
Mens Rea – The actor’s state of mind at the time of commission of the act; usually
required.
Causation – The link between the actus reus and result.
Result – The result of the actus reus; usually not required.
Attendant Circumstances – Other elements that must be present for criminal liability.
Actus Reus + {Mens Rea} + [Causation] + [Result] + [Attendant Circumstances] =
Criminal Liability (unless justified or excused)
Sample Statutes:
(1) A person shall be guilty of murder if he purposely cause the death of another person.
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1. Actus reus = Causing the death of another person.
2. Mens rea = Purposely
3. Causation = The actus reus is the cause of death.
4. Result = (Someone must die.)
5. Attendant Circumstances = n/a
(2) A person shall be guilty of burglary if he intentionally enters a dwelling without
permission with the intent to commit a felony therein.
1. Actus reus = Entering a dwelling without permission with the intent to commit a
felony therein.
2. Mens rea = Intentionally
3. Attendant Circumstances = Must be a dwelling.
Defenses:
Justifications
Excuses
Actus Reus:
Voluntary Acts:
MPC §2.01 –
(1) Person commits a criminal offense only when his liability is based on a voluntary
act or omission to perform an act of which he is capable (Note: this is a
paraphrase).
(2) The following are not voluntary acts:
a. a reflex or convulsion;
b. bodily movement during unconsciousness or sleep, such as an epileptic
seizure, sleepwalking, or muscle spasm;
c. conduct during hypnosis while under hypnotic suggestion b/c no different
than sleep or seizure; and (Note: this is rejected by most jurisdictions.)
d. Any other bodily movement that is not the product of the effort or
determination of the actor, either conscious or habitual, such as forced
movement.

Proctor: (During Prohibition, D was charged with “keeping a place” with the intent to
furnish alcohol.)
o Court reversed conviction on the ground that intent to commit a crime is not an
overt criminal act, and therefore, cannot be the actus reus in any crime. There can
only be a crime when one’s intent has been executed (where action coincides with
intent). Bad thoughts alone cannot be punished.
Omissions:
A person can be held criminally liable for failing to act when she has a legal duty to do so.
A legal duty can be imposed in the following ways:
(1) Statute;
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(2) Status Relationship: Pre-existing dependency creates a legal duty (e.g.,
spouse/spouse; parent/child) – dependency must be substantial (e.g.,
spouse/mistress not enough – Beardsley).
(3) Contractual Relationship (e.g., babysitter, nurse)
(4) Voluntary assumption of care of another where the assumption of care isolates the
person so that others cannot help; and
(5) Where a person caused the victim’s plight and can rescue her without risk of harm
to himself.

Jones: (D did not take her baby to the doctor. Baby died after being sick but not being
taken to hospital.)
o The omission of a legal duty which results in the death of the person to whom the
duty is owed can be a ground for involuntary manslaughter, but only when that
duty is legally recognized and not merely imposed by moral obligation.
Mens Rea:
Material elements: Elements relating to the harm that the statute is trying to prevent (i.e.,
conduct, result, and attendant circumstances). Everything else is jurisdictional.
4 Levels of Culpability Under the MPC:
Purpose:
 Conduct: D’s conscious object is to engage in conduct of that nature.
 Result: D’s conscious object is to cause such a result.
 Attendant circumstances: D is aware of the existence of the circumstances, or he
believes or hopes they exist.
Knowledge:
 Conduct: D is aware that it his conduct is of that nature.
 Result: D is aware that his conduct is practically certain to cause such a result.
 Attendant circumstances: D is aware that such circumstances exist.
 Willful blindness/ignorance: Knowledge is established because the actor is aware of a
high probability of the criminal activity’s existence and purposefully takes steps to
avoid learning the truth.
o Jewell: D had marijuana in car; knew of its existence but purposefully ignored
it.
o Giovanetti: D rented house to someone who used it for gambling. D acquitted
(of complicity) because not enough evidence that he purposefully ignored the
truth.
Recklessness: (Conscious risk creation)
 Result: D consciously disregards a substantial and unjustifiable risk of the material
element will result from his conduct.
 Attendant circumstances: D consciously disregards a substantial and unjustifiable risk
that the material element exists.
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Recklessness default rule: When a material element is missing a mens rea, the default
mens rea is recklessness, because purpose and knowledge are usually explicitly
mentioned in statutes, and because negligence is an exceptional basis of liability.
Negligence:
 D inadvertently creates a substantial and unjustifiable risk of which he should be aware.
 Result: D should be aware (i.e., a RPP would be aware) that his conduct creates a
substantial and unjustifiable risk of the material element resulting.
 Attendant circumstances: D should be aware (i.e., a RPP would be aware) of a substantial
and unjustifiable risk that the material element exists.
The MPC requires that every material element have a level of culpability attached to it.
The MPC only allows legislatures to condition crimes on negligence. The minimum mens rea
that courts can ascribe upon a material element is that of recklessness.
Common Law:
A variety of words were used to describe criminal intent.
Maliciously: Acting in disregard to the risk of another.
Intentionally: Acting with the purpose to cause a specific harmful result.
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STRICT LIABILITY
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D is guilty of a crime even if he honestly and reasonably believed his conduct was
proper.
Strict liability is a chief source of difference between MPC & the common law.
Common Law:
 Strict liability crimes are usually regulatory or statutory offenses for which no mens rea is
expressly given in the statute. Most statutes for non-regulatory offenses that do not
specify a mens rea requirement are presumed not to be strict liability crimes (Morissette).
o Public Welfare Offenses:
 Affect health, safety, and public welfare.
 Often strict liability offenses, because usually, no mens rea in statute.
o Things to take into consideration when determining the mens rea for a crime that
does not explicitly state one:
 Severity of the punishment
 Damage to D’s reputation
 Actual harm vs. mere risk
 Action vs. omission
 Legislative intent (e.g., regulatory law?)
o Dillard: Strict liability crimes are acts that are so destructive of the social order,
or for which it is extremely difficult if not impossible to establish the element of
criminal intent, that in the interests of justice, the legislature has provided that the
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doing of the act constitutes a crime regardless of knowledge, criminal intent, or
culpability on the part of the defendant.
MPC: (limited scope)
 Strict liability for “violations” only (i.e., offenses punishable only by a fine, or fine and
forfeiture, or other civil penalty that does not give rise to disability or legal disadvantage).
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HOMICIDE
Transferred Intent:
MSS: An intent to kill one person may be “transferred” to another who is the unintended victim.
 If A intends to shoot B, but misses and kills C, the intent to shoot B “transfers” to C.
MPC: If a person acts with purpose or knowledge, and the act results in the same type of harm
intended, mens rea and causation are satisfied even when a different person or property is
actually harmed.
Murder:
MSS:
 1DM
o Intent (P or K) to kill1 with Premeditation & Deliberation.
 Premeditation = A definite decision to kill (calculated and planned).
 Deliberation = “Cool” reflection that occurs after purpose to kill has been
formed; some appreciable time must elapse b/w design and act of killing.
 Broad approach: Mere seconds are enough for P & D. (Watson)
 Narrow approach: D has to have a specific design to kill (facts
must show a pre-design plan).
 For Pre & D, look for:
o Prior threats or hostility b/w D & victim;
o Strong motive for killing (e.g., money, revenge);
o Manner and circumstances of killing (e.g., reloading gun);
o Stalking of the victim or other evidence of plan to kill (not
just to hurt or frighten);
o Murder weapon brought to site of killing.
o 1D felony murder.
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2DM
o Intent (P or K) to kill (unplanned or impulsive).
o Intent to do GBH + use of a deadly weapon.
 E.g., Dorazio (boxer)
 No intent to cause permanent injury is not a defense.
o Recklessly with Depraved Heart (R&DH); i.e., “gross recklessness.”
 Actor is aware his conduct creates a large and substantial risk of death, but
goes through with it anyway. (Reckless conduct that is closer to P/K.)
 Extreme deviation from the norm. (Pears – drunk driver)
 Cold and callous (i.e., depraved) heart. (Mayes – beer glass)
 Unjustified b/c zero social utility. (Malone – one-sided Russian roulette)
“Intent to kill” = Purposely or knowingly causing the death of another.
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
Other examples: Shooting into unoccupied home; firing over person’s
head to scare them; shooting into a moving car.
o 2D felony murder.
MPC:
 Murder (no grading)
o P or K
 Purpose: Actor’s conscious objective is to cause death.
 Knowledge: Actor is aware that his actions are practically certain to cause
death.
o Recklessly with Extreme Indifference to Human Life (EIHL).
 Equivalent to MSS R&DH.
 May include vehicular homicide (like MSS) if EIHL can be established.
NOTES:
 No brightline test between R&DH/EIHL & ordinary recklessness.
 Both MSS & MPC allow murder convictions for vehicular homicide (MSS = 2DM).
o Drinking and driving alone not enough – must be driving in extremely erratic,
dangerous, and fast manner.
Manslaughter:
MSS:
 Voluntary Manslaughter
o Any murder except felony murder can be reduced to VM.
o A murder is reduced to VM when:
 Provocation defense (HoP + LAP + Inadequate time to cool);
 Imperfect self-defense; or
 Necessity.
 Involuntary Manslaughter
o (Ordinary) Recklessness
o Gross negligence (gross deviation from RP) – Not Ordinary Negligence
 No brightline test b/w gross and ordinary negligence.
o Failure to appreciate a risk of death of which the actor should be aware.
o Unjustified b/c zero social utility.
o Punishing these people for murder would be arguably pointless.
 No specific deterrence.
 Retribution won’t be met since one can’t be morally culpable for causing
an accident.
 Vehicular Homicide (minority jxds)
o Most IM convictions for gross negligence arise out of automobile accidents.
o Driving under the influence is likely to be grossly negligent per se b/c it is a
banned behavior.
 Any social benefit possibly achieved by driving under the influence is
outweighed by the risks such conduct creates.
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MPC:
 Manslaughter (no grading)
o Murder may be reduced to manslaughter if:
 Regular recklessness (w/o EIHL); or
 Carried out with Extreme Mental or Emotional Disturbance (EED) for
which there is reasonable explanation or excuse (subj. standard).
 Negligent Homicide
o Gross negligence (gross deviation from RP)
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FELONY MURDER
[Most jurisdictions have felony murder rules. MPC does not have felony murder rules – murder
committed in the course of a felony gives rise to presumption of extremely reckless murder.]
Elements:
 What was the predicate felony?
o 1DM: BARRK
o 2DM: Inherently danger./high prob. of death (abs. v. as-c) + independent purpose
 Did the killing occur during the commission of the predicate felony, or was the felon in
immediate flight?
 Was the killing done in furtherance of the predicate felony? (common purpose, not
“separate frolic” or rogue felon)
 Who caused the death? (agency vs. proximate cause)
 Who was the victim? (some say no FM if victim was co-felon)
1D Felony Murder (BARRK)
 Underlying felony must be a BARRK felony (Burglary, Arson, Rape, Robbery,
Kidnapping) – “enumerated felonies”
2D Felony Murder (not BARRK)
 Two elements:
(1) Predicate felony is inherently dangerous (high probability of death).
 Abstract (Majority) – Felony causes a risk of death in the abstract (does
not look at how the felony was actually committed).
 As committed (minority) – Felony causes a risk of death as committed.
(NOTE: Problematic b/c all felonies are inherently dangerous.)
(2) Predicate felony is independent of and does not merge with the homicide.
 The felony must have a purpose other than causing physical injury.
 Lucas (child abuse case)
 D was not guilty of felony murder because the sole purpose of
carrying out predicate felony was to inflict physical harm.
The killing (or attempted killing) must be in furtherance of underlying “predicate” felony.
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
Rogue Felon Doctrine: The killing cannot be the private action (“separate frolic”) of one
of the felons (i.e., cannot be outside the common purpose of the felony).
o E.g., A shoots C in the parking lot in the middle of a robbery at 7-11.
The killing must take place during the commission of the felony.
 Includes immediate flight from scene of felony.
 Gladman factors:
o Police/citizens in hot pursuit.
o Felon has not yet reached a place of temporary safety.
o D has not abandoned the loot.
o Much time has not elapsed from the commission of the felony.
 Gladman (D killed officer 15 minutes after felony, ½ mile away from scene.)
o D was convicted of felony murder on the ground that commission of the felony
was ongoing at the time of the killing.
Victims:
 Some jxds hold that no felony murder if the victim is a co-felon – others make no
distinction.
Hastening Death:
Felony murder conviction may be obtained even when D’s act only hastens death, so long as
death is the causal result of D’s actions. “You take the victim as you find him.”
 Stamp (Overweight owner w/ poor health had heart attack and died after his office was
robbed).
Rationales for felony murder rule (and criticisms thereof):
(1) Committing the felony proves that the M.R. necessary for murder conviction was
present (EIHL).
o This is not always true (e.g., Stamp).
o But the rule allows prosecutors to ignore intent to kill for murder conviction.
(2) Strict liability, even if (1) is not true.
o But only for felonies that carry a significant risk of death (e.g., BARRK).
o Burgalry: 1 in 30,000 risk of death  Is this high enough for strict liability?
(3) Deterrence against committing the underlying felony.
o Some felony murders are accidental. Can these be deterred?
o Usually, felony murders are not premeditated, but occur in the moment.
o Could achieve deterrence by enhancing penalties for crimes involving weapons.
(4) Encourages felons to be careful of how they commit crimes.
Causation:
Death must be a probable consequence (i.e., reasonably foreseeable) of the actor’s conduct.
The result cannot be too remote, too accidental in its occurrence, or dependent on the volitional
acts of others.
 “You take the victim as you find him.”
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o Hubbard: (D resisted arrest and started a small scuffle; victim, who had a
preexisting heart condition, later died from a heart attack.)
 Court held that D was not guilty because death is not a reasonably
foreseeable consequence of resisting arrest. Also, the victim should not
have put himself in a situation where he could aggravate his heart
condition.
Martin (D set fire to garbage after getting kicked out of a party).
o Court held that D was not guilty because jury instruction on causation was too
broad.
Agency Jxds (Majority): One of the felons (i.e., agents) must actually perform the killing.
o Provocative Act Doctrine (Vicarious Liability):
 Allows for murder convictions in cases where the felons didn’t actually do
the killing, on the ground that Ds are guilty b/c they initiated a provocative
act.
 Almost always applied to initiating a gun battle.
o Taylor (Ds tried to rob a store. One had a gun and
threatened to shoot owner. Owner’s wife shot and killed the
other robber.)
Prox. Cause Jxds (Broader): So long as death is a reasonably foreseeable consequence of
the felony, it does not matter who did the actual killing.
o Hickman (One police officer shot another after thinking he was one of the
assailants.)
 Ds were convicted for 1D felony murder on the ground that the underlying
felony was the cause of death b/c it was reasonably foreseeable that
officers would be running around with guns drawn.
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CAUSATION
[Only a necessary element of an offense where a result is also a necessary element.]
4 Limitations on Causation:
 But-for causation
 Proximate Cause: Foreseeability
 Proximate Cause: Intervening causes
 Duty requirements for omissions
Flowchart:
 But-For causation: But-for the D’s act, would death have occurred? (Remote link)
o If yes, D cannot be said to have caused death beyond a reasonable doubt.
o If no, then D’s act was the but-for cause of the victim’s death. Look for proximate
causation.
 Proximate Cause:
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
o Foreseeability: Was death the probable and natural consequence of the D’s act? Is
the nexus between D’s actus reus and the result close enough to warrant
conviction? (Close link)
 If no, D cannot be held criminally liable for victim’s death.
 If yes, look for intervening cause.
o Intervening cause: Was there an independent act or occurrence that broke the
chain of causation?
 If yes, D cannot be held criminally liable for the victim’s death.
 If no, D’s conduct was a proximate cause of the victim’s death.
Causation by Omission: Did the D have a legal duty, the omission of which proximately
caused the victim’s death?
o If legal duty existed, D is criminally liable for proximately causing death.
o If no legal duty existed, D is not criminally liable, even if he had a moral duty to
act.
But-For Causation:
 Necessary but not sufficient to show cause.
 Usually will be met because it is such a broad standard (there are rare exceptions).
o Martin Dyos – Teens in fight; D struck victim on head with brick. D died, but
autopsy revealed two blows to victim’s person, each of which was sufficient to
cause death. Prosecution could not show that D inflicted the second blow, or that
“but for” D’s throwing the brick, the victim would not have died from the second
blow.
o Joint and Coincidental Causes: D1 & D2 both shoot victim at the same time,
killing him. If each D’s shot alone was sufficient to kill victim, then both are
responsible and culpable, even though but-for causation cannot be proven.
 Not like Martin Dyos because there, P could not prove whether first or
second blow caused death.
Proximate Causation:
Foreseeability
 For D to be criminally liable, death must be reasonably foreseeable:
o The probable and natural consequence of D’s actus reus, or a condition created
by D.
o A logical connection between D’s actus reus and the result of death.
o The result of death is within the scope of danger created by D’s actus reus.
 Broad approach: D must foresee only that death may occur as a result of his actions.
 Narrow approach: D must foresee the precise events that cause death (cuts most Ds
out).
 Hubbard – D resisted arrest. Victim had previous heart condition and tried to help
subdue D. D never struck victim. Victim died shortly thereafter of a heart attack.
o D was not convicted because though his act was the but-for cause of death, it was
not a probable and natural consequence of resisting arrest.
 Rhoades – D set fire to apartment building. Firefighter died.
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o Court held that a firefighter’s death is a reasonably foreseeable consequence of
the act of starting a fire because it is within the scope of danger. However,
incorrect jury instructions were given by the trial judge.
Independent Intervening Event
 An unforeseeable act or event independent of D’s act that breaks the chain of
causation such that D cannot be said to have proximately caused the victim’s death.
o An intervening cause cannot be closely related to injuries caused by D.
o Intervening act must be completely independent from D’s act in order to be
considered cause of death.
o The existence of intervening cause means D did not cause the condition that led to
victim’s death; therefore, D is not culpable for homicide. Rather, someone else
(victim himself?) is more culpable.
 The following are not intervening causes of death b/c reasonably foreseeable:
o Failure or refusal to receive medical treatment after being injured by D, even if it
hastens or contributes to victim’s death.
o A doctor’s ordinary negligence in treating a victim, even if it aggravates the
victim’s injuries.
 However, a doctor’s gross negligence in treating the victim is an
intervening cause (especially if injuries caused by D were relatively
minor).
o Victim’s aggravation of his own injuries, unless:
 The initial injury was minor;
 The victim aggravated his injury due to some ill motive; or
 The victim aggravated his injury through some egregiously stupid act of
his own.
 Hamilton – D & victim got in fight. D flipped out and stomped on victim’s face, badly
injuring him. While in hospital, victim pulled breathing tubes out and died shortly
thereafter.
o Holding: D proximately caused victim’s death because reasonably foreseeable
that someone in the victim’s state of mind would try to hasten his own death.
Furthermore, pulling the tubes not independent, but dependent, intervening cause
because closely related to injuries caused by D (D caused the condition that led
to victim’s death).
 Root – D & victim drag-racing on two-lane highway. Victim tried to pass and collided
with on-coming traffic, resulting in his death.
o Holding: D was not criminally liable because the victim’s own act of trying to
pass the D was an independent intervening cause of death. However, D would
have been guilty if he had tried to force victim off the road.
 Stephenson – D was KKK leader. Kidnapped victim and repeatedly attempted to rape
her over the course of a few days. Victim eventually killed herself by ingesting poison.
o Holding: D was found guilty because he put the victim in such a condition that it
was a probable and natural consequence for her to do anything she could to
escape, even kill herself.
 Kevorkian – D assisted terminally-ill patient’s to commit suicide by providing them with
the means to kill themselves.
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o Holding: The victims’ own acts of initiating their own deaths were independent
intervening causes of death that broke the chain of proximate causation. The
victims’ consent would not have been enough to constitute an intervening act
– they had to administer the fatal doses themselves.
Persampieri: Victim was D’s wife. She was intoxicated and threatened to kill herself. D
loaded the gun for her and told her to pull the trigger.
o Holding: D’s conviction was affirmed because he was causally responsible for
his wife’s suicide and should have reasonably foreseen that she would kill herself
when he gave her the gun.
Bier: Victim was D’s wife. D told wife that she had to kill him to stop him from leaving.
Instead, she killed herself.
o Holding: D’s conviction was upheld because it was reasonably foreseeable that
his actions would lead to death (either his own or his wife’s).
Year-and-a-day Rule:
o Old common law rule where an act causing death was not homicide if death
occurred more than a year-and-a-day after D’s act was committed.
 Today, rejected by most jurisdictions.
 Reflected lack of technology of the times.
 Rendered moot by new technologies that make it much easier to prove
causation for acts that occurred years before death.
Causation By Omission:
 If a D has a legal duty to help the victim but does not do so, the omission of that duty is
sufficient to serve as the proximate cause of the victim’s death.
o Beardsley – D had a mistress. She overdosed on morphine tablets and became
unconscious. D put her in a bedroom and told his tenant to look after victim.
Victim died shortly thereafter.
 Holding: D was not guilty because he did not have a legal duty to help the
victim, and therefore, there was no omission. A legal duty to one’s spouse
does not extend to one’s mistress, and moral obligation is not enough to
confer a legal duty.
o Statute;
o Status Relationship;
o Contractual Relationship (e.g., babysitter, nurse)
o Voluntary assumption of care of another where the assumption of care isolates the
person so that others cannot help; and
o Where a person caused the victim’s plight and can rescue her without risk of harm
to himself.
MPC:

D’s conduct is the cause of the result when it satisfies the but-for standard, and any other
requirements expounded in the statutory offense.
15
Transferred Intent:
 Where there is a crime that requires a particular result or harm in the statutory language,
if the actual harm caused by D’s conduct follows the statutory definition, D is criminally
liable even if he injures a different person or piece of property than he intended to
injure, or the actual harm involves the same type of injury he intended to cause.
o This applies to all four mens rea.
o Rationale: D is still culpable of the same kind of harm that he wanted to cause.
o Caveat: Cannot transfer intent from one crime to another (the one intended vs.
the one actually committed).
 Faulkner (D tried to steal rum on boat; ended up starting a fire and destroying
the boat).
o Court held that D’s purpose was to take rum that didn’t belong to him,
not to cause actual harm. Therefore, no transferred intent.
______________
ATTEMPT
[Conviction for inchoate criminal activity.]
Actus Reus: Substantial step (MPC) or Dangerous proximity (common law)
Mens Rea: Purpose to commit the underlying crime (regardless of underlying M.R. req’d).
Result: None
Why prosecute attempt?
 Specific deterrence (D may try to kill again).
 General deterrence.
 D is just as morally culpable for attempt as someone who completes the act.
 Very high mens rea.
 Protect potential victims.
Punishment for attempts:
Common Law:
 Less severe punishment for attempts than for completed crimes since no actual harm
caused.
o Less retribution is needed because D is less culpable.
o Marginal deterrence: We want to punish someone more for actually committing
the crime and less for not committing it.
 Reckless behavior that doesn’t result in death if usually not punished at all (if completed,
would be involuntary manslaughter).
MPC:
 In most cases, punishes attempts as severely as completed crimes.
o D is just as culpable for attempt to commit a crime as he is for completing the
crime because his mens rea is the same for both.
o Therefore, D is just as culpable for attempt.
16
Double jeopardy: Cannot convict A of attempting to murder and murdering D. Completion of the
crime precludes attempt conviction with respect to that victim
HYPO: A tries to shoot B, but misses and kills C. A can be convicted of murdering C, and
attempting to murder B.
Mens Rea:
Majority Rule: Conviction for attempt requires purpose to commit the completed crime. It does
not matter what M.R. the underlying crime requires.
 If D is convicted of attempted murder, his M.R. must have been intent to kill.
 Lyerla (D driving down highway; car full of three girls harassing him. D pulled off road,
loaded gun, found car, and shot three times.)
 HYPO: D tries to get rid of a tree stump next to a 7-11 with people in it by blowing up
the tree stump, and ends up seriously injuring someone. We could not get D for attempted
murder because one cannot be purposefully reckless.
Actus Reus:
Basic idea: We want to be sure that D would have actually committed the crime.
Mere preparation is not enough.
Common Law: Dangerous Proximity to Success
 Focuses on how much D has left to do to complete the crime.
 D must get “dangerously” close to successfully completing the crime.
 The closer to completion, the more likely a conviction for attempt.
 Murray (D elopes with niece. Convicted of trying to conract incestuous marriage.)
o Court reversed conviction on the ground that D’s actions were mere preparation.
o Would probably have been a conviction under the MPC standard.
 Rizzo (Ds drove around town looking for banker with payroll.)
o Court reversed conviction on the ground that D’s actions were too remote (i.e.,
not dangerously close to success).
MPC: Substantial Step That Strongly Corroborates Criminal Intent/Purpose
 D must take a substantial step toward fulfilling criminal purpose.
 D’s actions must strongly corroborate attempt to carry out this purpose.
o D does not necessarily need to get close to completing the crime.
 7 types of conduct that are generally sufficient for attempt conviction under MPC:
o Lying in wait;
o Following, enticing;
o Looking for victim;
o Reconnoitering or “casing” a location (Jackson);
o Unlawful loitering;
o Possession of materials which have no lawful purpose or have specific criminal
purpose;
o Soliciting an innocent agent.
 Jackson (Ds twice reconnoitered a bank they intended to rob; had sawed-off shotguns.)
17

o Ds convicted on the ground that their actions met MPC’s two requirements.
Buffington (Ds parked in b/w bank and Payless. Power outage, so no robbery.)
o Court reversed convictions for attempted federal bank robbery on the ground that
it was not clear whether they planned to rob the bank or the Payless.
Minority Standards:
 First Step
o Too tenuous
o Could convict someone for mere preparation, or someone who was unlikely to go
through with commission of the crime.
 Last Step (Physical Proximity Test)
o Completed crime may take place before police thwart the criminal.
o Thus, much higher likelihood that the crime will be carried out successfully.
 Abnormal Step
o McQuirter (Black D followed white woman around. Convicted of attempted
assault.)
 Court invoked abnormal step doctrine, but basically, a racially motivated
holding.
Defenses to Attempt:
Abandonment/Renunciation: [D meets M.R. and A.R., but abandons his intent.]
 Common Law:
o Most jxds do not allow for abandonment/renunciation defense.
 Rationale: One of the purposes of punishment is to punish those who
attempt to commit crimes. Therefore, irrelevant if someone changes their
mind after coming dangerously close to success, even if done voluntarily.

MPC:
o Allows abandonment/renunciation so long as it is:
(1) Complete (no risk of ever attempting to commit the crime against anyone
else again), and
(2) Voluntary
o LeBarron (D abandoned attempt to rape victim when she told him she was
pregnant.)
 Court convicted D for attempt b/c no indiciation that D had completely
renounced his conduct. The only reason he abandoned rape was b/c victim
was pregnant. Jury found he was likely to try to rape someone again.
o Staples (D tried to rob a bank by drilling into safe from floor above, but later
abandoned.)
 Court held that the abandonment was not voluntary, because he only
abandoned once he found out the police were onto him.
Impossibility: [D takes every step necessary, but fails to complete crime b/c impossible to do so.]
 Old Common Law:
o Legal Impossibility: (Valid defense)
18

The act, if completed, would not be a crime.
 Actually against the law to do what D wants to do, but impossible
to commit the crime even if D completes all necessary steps.
 E.g., D thinks he is selling heroin, but it is in fact sugar.
 Booth (D received topcoat in a police sting operation.)
 Court reversed conviction for attempt to receive stolen property on
ground that topcoat was no longer stolen b/c recovered by police.
o Factual Impossibility: (Not a valid defense)
 The crime is impossible to complete because of a physical or factual
condition unknown to D.
 E.g., A shoots B six times, but all six bullets are blanks.
NOTE: Impossibility defense does not negate M.R.

New Common Law:
o Pure Legal Impossibility
 The result intended must be an actual crime, or D is not guilty of attempt.

MPC:
o No impossibility defense except pure legal impossibility.
 The result intended must be an actual crime.
o If D had purpose to commit an actual crime and would have committed it
were the circumstances/facts as he believed them to be, D is guilty of attempt.
 Example: D shoots into enemy’s bedroom at a shape he thinks is his
enemy, but is really his pillow.
o Focuses on the M.R. of the D.
 The D had the purpose to do the crime, and took all possible steps to carry
out that crime.
 Policy: The D is just as dangerous and needs to be deterred as criminals
who are successful.
o Mitigation (cases involving death):
 D is too far off from causing the harmful result he intends to cause.
 If the result intended by the criminal is so unlikely to result in death,
neither the actor not the conduct is dangerous enough to warrant
conviction for attempted murder.
 Courts may lessen the charge, reduce the sentence, or acquit.
 Examples: voodoo, witchcraft.
 Counterargument: May lead D to assume more effective means of
killing his target, so there may be an element of specific deterrence
to consider.
 Dlugash (D shot someone who had already been shot and had possibly
died already.)
 Court upheld D’s conviction for attempted murder on the ground
that he believed victim to be alive when he shot him (M.R. met).
 Thousand (D convicted of attempted distribution of obscene material to a
minor.)
19


D claimed pure legal impossibility because attempted distribution
was to an undercover officer and not actually a minor.
Court upheld conviction on the ground that A.R. and M.R. met.
__________________________________
ACCOMPLICE LIABILITY
[aka “Complicity,” “Aiding and Abetting”]
Mere presence is not sufficient
 Ochoa (Mob scene outside of jail.)
o Velarde’s mere presence at the scene not enough to show he aided and abetted the
person who shot the sheriff.
 Gains (Drove getaway car after bank robbery – not clear if purpose was to aid and abet.)
o Evidence did not support necessary mens rea, and P could not convict b/c of mere
presence at the scene.
 Caveat: Sometimes, mere presence is sufficient to incite the perpetrator.
Modern Approach:
Majority Rule:
 An accomplice can only be held liable for crimes that are
o Planned, or
o Reasonably foreseeable consequences of the planned crime.
Common Law:
 Four categories:
o Principal in 1D: Perpetrator (i.e., someone who can meet statutory requirements
of the crime).
o Principal in 2D: At the crime scene either physically or constructively, and helps
perpetrator.
 E.g., lookout, wheelman
o Accessory Before the Fact: Not present at crime scene, but has same purpose as
principals and helps or encourages them before commission of the crime.
 E.g., giving perpetrator the weapon (usually must be > mere presence)
o Accessory After the Fact: Has nothing to do with the crime before or during
commission, but helps cover up after commission. Therefore, not an accomplice.
 E.g., hiding gun after the crime
 No distinction b/w principals in 1D & 2D and accessories before the fact.
o All are subject to the same charges and punishment.
o But traditionally, accomplices are not convicted until perpetrator has been
convicted.
 Accessory after the fact is charged with separate offense; punished less severely.
NOTE: One can aid and abet an attempt to commit a crime.
20
Policy:
Why do modern statutes treat principals and accessories before the fact the same?
 Deterrence
 Concern that involvement of multiple felons will increase the likelihood that the crime
will be carried out successfully.
 All Ds share the same M.R. as the principal (and it is a high mens rea).
 A.R. is present
 If someone is less blameworthy, the judge can reflect this in sentencing, but all Ds will
still be convicted of the same crime.
Why do we punish accessories after the fact less?
 Did nothing to help out with the actual crime.
 Lacked M.R. to do the crime.
 Lacked A.R. to do the crime.
 Less dangerous and blameworthy b/c the crime has already occurred.
 Usually, people who fall into this category are family members and friends
o Public sympathy toward these people
o One state actually exempts relatives from liability
 But we still prosecute these people for purposes of deterrence.
Actus Reus:
Common Law:
 By any means sufficient to incide, encourage, counsels, or instigate commission of the
offense, or through procurement (e.g., procuring the murder weapon).
 Accomplice must give actual aid to the principal felon.
MPC:
 Attempt to aid is sufficient; D does not have to give actual aid.
Mens Rea:
Common Law & MPC:
 The accomplice must have knowledge of the perpetrator’s criminal purpose and the
purpose to aid and abet the perpetrator.
o Knowledge that one’s aid will lead to a result is insufficient.
 Beeman (D helped perps rob his family’s rings; argued that his purpose
was not to aid and abet but he had knowledge.
 Court upheld conviction on the ground that this was a valid jury
issue, and the jury had ruled against the D.
 An accomplice may instantaneously form the necessary mens rea (no pre-plan required).
To show purpose to aid and abet, look for:
 Similarity of D’s current conduct to past conduct
 Motive (e.g., revenge)
21




D’s relationship to the principals
Prior hostility between victim and D
D’s prior acts or statements
The effects of D’s words or actions
Result:
Common Law:
 An accomplice must put the victim at a disadvantage.
o Depriving victim of an opportunity to escape the consequences of the criminal
act is sufficient to meet this requirement.
 Tally (D prevented victim from receiving a telegram that could have
helped him escape death).
 D was convicted on the ground that he put the victim at a
disadvantage by depriving him of the opportunity to escape.
 Does not matter if victim would actually have escaped if he had
received the telegram.
 One cannot meet A.R. for complicity when there is no crime (cannot aid/abet non-crime).
o Hayes (D was set up by Hill to be caught by police while robbing a store.)
 Court reversed complicity conviction on the ground that there was no
crime to begin with, since Hill lacked the M.R. and was just trying to set
the D up.
MPC:
 An accomplice must put the victim at a disadvantage.
 But an accomplice need not provide actual aid. An attempt to provide aid is sufficient.
(Most jxds do not follow this rule.)
NOTE: Under MPC, one can be convicted as an accomplice for a crime that was never
committed (so long as substantial step + purpose to aid/abet are present).
Causation:
 An accomplice does not have to cause the result to be convicted, so long as someone
causes the result (i.e., the perpetrator).
o Even but-for causation is not necessary.
o In Ochoa, court convicted the accomplices for aiding and abetting even
though the P did not know who actually shot and killed the sheriff.
Defenses:
Renunciation Doctrine (MPC & minority jxds only)
 One can terminate his complicity (after aiding and abetting) so long as:
(1) He does so prior to the commission of the offense, AND
(2a) He stops the principals from benefitting by wholly depriving the effectiveness of
the aid he has provided), OR
(2b) He stops the crime from occurring by timely notifying police (or otherwise).
22
Acts Outside the Common Plan
 An accomplice cannot be held liable for the perp’s rogue crime/“separate frolic.”
Conviction:
 All P has to do to convict is show that a crime occurred and that D was an
accomplice. P does not have to prove who the perpetrator was.
 An accomplice can be convicted even if the perpetrator is excused, not convicted, or
never caught.
 An accomplice can be convicted of a more serious offense than the perp.
o Pendry: (Two brothers shot another person.)
 Principal brother had sentence reduced to VM b/c was able to show
EED.
 But the accomplice brother was convicted of 1DM (M.R. and A.R.
met).
 A legal defense that gets perp acquitted or that reduces perp’s sentence does not
preclude accomplice from being convicted of aiding and abetting.
Special Circumstances:
Willful Blindness/Ignorance:
 Evidence that D, knowing or strongly suspecting that he is involved in shady dealings,
has taken steps to make sure he does not acquire full or exact knowledge of the nature
and extent of those dealings, is usually insufficient to convict under accomplice liability.
Feigned Accomplice:
 Someone who pretends to be an accomplice and aids and abets for the purposes of
entrapment does not possess the mens rea of purpose, and can therefore not be convicted
under complicity.
Innocent Instrumentality Doctrine/Perpetrator By Means:
 Both common law & MPC.
 Perpetrator dupes innocent or mentally irresponsible person to do the actus reus for him.
o Perp. cannot escape liability on the ground that he did not commit the actus reus.
o Perp. is presumed to have committed the actus reus, not the innocent accomplice.
 Rationale: The innocent person does not have the criminal mens rea.
 Does not have to be a human – can be any innocent instrumentality.
Felony Murder:
 So long as death was a reasonably foreseeable consequence of the planned crime, an
accomplice can be convicted of felony murder for a killing done by the principal.
o Holds true in both agency and prox. cause jxds.
_______________
DEFENSES
23
Affirmative Defenses: P proves prima facie case, but D is convicted under lesser crime, or not
convicted at all. Justification and excuse are both affirmative defenses.
Justification: D committed a crime, but did more good than harm. Society is better off because of
D’s act.
 Self-defense/defense of others
 Castle Exception:
 Necessity (choice-of-evils)

Policy rationales:
o Deterrence: Law does not deter, but encourages, this type of conduct, b/c
actor has to choose b/w committing the crime or death/SBH.
o Incapacitation: No indication that B is a dangerous person, so no reason to
lock him up.
Excuse: D is not morally blameworthy for causing the harm even though he meets the M.R.
 Duress
 Insanity
______________________
JUSTIFICATION
Necessity (Lesser-Evil):
[Complete defense only]
Common Law:
 The actor:
o Must face a choice b/w two evils or harms, where the threatened harm is
imminent/immediate;
o Must choose the lesser evil or harm; and
o Cannot use the defense
 if there is contrary legislative intent,
 if the actor created the situation giving rise to the necessity, or
 for the crime of homicide.
 Dudley Stevens (Four men stranded on boat for many days; end up killing the boy in
order to survive.)
o Court holds that Ds are guilty of murder b/c one cannot take the life of someone
else on the ground of necessity.
 Warshow (Political protest regarding the reopening of a nuclear power plant.)
o Court upholds Ds’ convictions on the ground that Ds were claiming a future harm,
not an imminent harm.
MPC:
[No imminence requirement]
 The actor:
24
o
o
o
o
Must face a choice b/w two evils or harms;
Must choose lesser evil or harm; and
Can use the defense for the crime of homicide, but
Cannot use the defense
 if there is contrary legislative intent,
 for crimes with mens rea of recklessness if the actor recklessly created the
situation,
 for crimes with mens rea of negligence if the actor recklessly or
negligently created the situation.
Self-Defense:
Common Law:
 For use of non-deadly force, D must show that:
o He honestly (actually) and reasonably believed there was an imminent/immediate
threat of unlawful bodily harm (no preemption);
o The force used was necessary to protect himself; and
o The force used was proportional (i.e., not excessive with respect to the threat).
 For use of deadly force, D must show that:
o He honestly and reasonably believed there was an imminent or immediate threat
of SBH or death (no preemption);
o The force used was necessary to protect himself; and
o The force used was proportional2 (i.e., not excessive with respect to the threat).
o LaVoie (D driving home from work. Assailants purposely rammed into him from
behind.)
 Court found D not guilty because there was a legitimate threat of deadly
force against LaVoie
NOTE: So long as D’s belief was reasonable, whether he was right or wrong is
irrelevant.

Reasonableness:
o If the actor’s belief (that SBH is imminent) is honest and reasonable, it constitutes
“perfect” self-defense (acquittal).
o If the actor’s belief is honest but not reasonable, it constitutes “imperfect” selfdefense (reduced to VM).
o Reasonableness standard used by most courts – the average RP with the D’s
physical characteristics and prior knowledge and experiences.
 Goetz (D shot four kids on subway train.)
 The RP standard for imminence can take into account:
o Physical attributes of D and assailant (health, size, strength);
o D’s prior experiences (but does not include personality
traits/defects);
2
Only allowed to use force until adversary has been disabled. Anything beyond that is excessive.
25

o D’s prior knowledge of the assailant;
o Location (Goetz was on a subway train).
But some courts reject a reasonableness standard for imminence that takes
into account physical characteristics and subjective experiences.
 Opens the defense to a lot of people.
 Serious concern about sham defenses.
 Don’t want to encourage vigilante justice (e.g., more people would
start carrying guns on the subway).
o Battered-Wife Syndrome:
 Courts generally use subjective reasonableness standard here, taking into
account the fact that D suffers from psychological/physiological syndrome.
 Leidholm (D killed her husband while he was sleeping and
claimed self-defense. He had a long history of abusing her.)
o Court reversed trial court’s holding that D’s fear of was
unreasonable b/c trial court used an objective (male) RP
standard. The higher court used a subjective RP standard,
looking at the circumstances facing D at the time of the
crime as well as her past experiences.
 But most jxds reject self-defense claims where the husband is asleep on
the ground that it is unreasonable to believe that imminent threat exists.
 Norman (D went to mother’s house and got a gun; gun jammed;
she fixed the gun and then killed her husband).
MPC:
 Differs from common law in the following key respects:
o Relaxes imminency requirement
 D may believe use of force is necessary “on the present occasion.”
o Expands use of deadly force
 Perceived threat may be of SBH, death, kidnapping, or threatened or
forcible sexual intercourse.

Reasonableness:
o If the actor’s belief is honest and reasonable, it constitutes “perfect” self-defense
(acquittal).
o If the actor’s belief is honest but
 He was reckless in forming his beliefs, he can be convicted of a crime
with a M.R. of recklessness (e.g., manslaughter)
 He was negligent in forming his beliefs, he can be convicted of a crime
with a M.R. of negligence (e.g., negligent homicide).
Duty to Retreat Exception:
 MPC only:
o Use of deadly force is not permitted where actor can retreat with complete safety.
o Castle Exception:
 An actor does not have to retreat when attacked in his own home.
26

An actor does not have to retreat when attacked at his workplace except
where another employee is the attacker.
Initial Aggressor Exception:
 Generally, an actor is not entitled to self-defense if he initiated the confrontation.
 Exceptions:
o Common Law: Initial aggressor can regain the right to use self-defense if he
withdraws from the confrontation and communicates withdrawal to the adversary.
o MPC: Initial aggressor can regain the right to use self-defense if he uses
moderate/non-deadly force and the adversary responds by using deadly force.
 Gleghorn (D tried to beat up victim; victim shot arrows at D; D beat
victim to death.)
 Court held that was guilty because he was the initial aggresor, and
it was reasonable for the victim to believe that D was going to use
deadly force against him. But under MPC jxd, he may have had a
valid claim of self-defense.
Defense of Others:
Majority Position: Actor may use force to defend third party to the extent that the third party
would be entitled to use such force herself.
 Actor must honestly and reasonably believe such force is necessary to protect the third
party from imminent unlawful bodily harm.
Minority Position: Actor must be correct as to whether the use of such force was necessary.
Defense of Property:
The use of non-deadly force is permitted if:
 The actor honestly believes that force is immediately necessary to prevent an unlawful
trespass or the unlawful carrying away of movable property, or to reenter land or retake
property from which the actor has been unlawfully dispossessed; and
 The force used is not excessive under the circumstances.
The use of deadly force is permitted only if the actor honestly believes it is necessary to prevent
a felony where:
 The felony has employed or threatened deadly force, or
 The use of non-deadly force would expose the actor or another person to a substantial
danger of SBH.
 (In reality, this is more of a defense of persons rather than property.)
The use of devices to protect property is permitted only where:
 The device is not designed to cause death or SBH, and
 Use of the device is reasonable under the circumstances.
27
NOTE: Under MPC, device must give warning (sign may not be enough b/c not everyone
can read).

The use of devices is generally frowned upon because:
o A device may hurt innocent people, and
o A device cannot “change its mind.”
____________
EXCUSE
Duress:
[AKA “Coercion”]

A duress defense is a complete defense (acquittal).
Common Law:
 The actor:
o Must face a present, imminent, and pending/continuous threat of SBH or death to
himself or a close relative (cannot merely be threat of future harm) which a
person of reasonable firmness would be unable to resist; and
o Cannot use the defense
 if the actor recklessly placed himself in the situation,
 if the actor faces financial/economic harm,
 if facing minor injury,
 for destruction of property, or
 for the crime of homicide (cannot kill an innocent person to save yourself)
 Crawford (D was a drug addict; owed Owen a large sum of money. Took several people
hostage and robbed them on the ground that Owen had threatened to harm his son.)
o Court rejected duress defense and convicted D on the grounds that the threat of
harm was not imminent, and D recklessly placed himself in the situation.
 Williams (D borrowed money from drug-dealer’s brother; ended up working as part of
the drug ring to pay back the money.)
o Court rejected duress defense and convicted D on the ground that he recklessly
placed himself in the situation.
MPC:
 The actor:
o Must face a threat of unlawful force against himself or another person (not just a
relative) which a person of reasonable firmness would be unable to resist where
“reasonable” allows for consideration of a few subjective factors; and
o Can use the defense for the crime of homicide, but
o Cannot use the defense
 if the actor recklessly placed himself in the threatening situation, or
 for a crime with a M.R. of negligence if the actor negligently placed
himself in the threatening situation.
28
Insanity:

Legal Standard: Serious and recognized mental disease or defect.
o Usually, schizophrenia, paranoia, delusional disorders qualify for insanity
defense.
o D is presumed to be sane and presumed to know the law.
 Therefore, D has the burden of producing evidence of insanity.

Policy:
o No retribution b/c though D has mens rea, he is not culpable in the traditional
sense.
o No deterrence for people who are insane.
o Incapacitation is served via civil commitment, b/c insane people can be treated
but are still taken off of the streets.

Insanity defense is a complete defense (NGI = acquittal), but D will be locked up in a
mental facility.
o No time limit.
o Confined until deemed healthy enough to leave.
o Usually, institutionalization is for a long period of time.
M’Naghten Test: (Majority)
 Actor has an insanity defense if (1) at the time of the criminal act (actus reus), (2) as a
result of a mental disease or defect, (3) he either
a. did not know the nature and quality of his act (did not know what he was doing),
or
b. did not know that his conduct was wrong (did not know that society believes that
what he was doing is morally wrong).
 A person may considered legally sane so long as the person commits an act contrary to
law and knows that the act is morally wrong.
o A defense of insanity based on the M’Naghten rule is defined by a D’s inability to
distinguish moral right from moral wrong as measured by a societal standard of
morality, not legal right from legal wrong.

Serravo (D thought God told him to build sports complex; thought wife was going to get
in the way. D thought God told him to kill his wife; stabbed wife while she was sleeping
and told police he didn’t do it. Wife found out it was him by reading his diary.)
o Court reversed part of the D’s conviction on the ground that the standard of
measurement for the M’Naghten test is moral wrong, not legal wrong, and
because Serravo believed that his act was moral, because it had been decreed by
God.
Irresistible Impulse:
 Actor has an insanity defense if (1) at the time of the criminal act (actus reus), (2) as a
result of a mental disease or defect, (3) he was not capable of controlling his conduct due
to a sudden uncontrollable impulse.
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o D can’t stop even though he knows he is going to get caught.
o Very limited exception.
Deific Decree:
 Actor has an insanity defense if (1) at the time of the criminal act (actus reus), (2) as a
result of a mental disease or defect, (3) he believes he is acting under “deific decree” or
that the act is ordained and commanded by God.
o D has an insane delusion that God has directly communicated to him that he must
commit the offense (on God’s behalf), and believes that it is morally correct
because it was ordained God.
o Defense is rejected if someone voluntarily adops the beliefs of a particular
religion (e.g., a cult).
o The higher power that is followed must be morally “good” (i.e., cannot be Satan).
NOTE: Both irresistible impulse and deific decree supplement the M’Naghten test.
MPC:
 Actos has an insanity defense if (1) at the time of the criminal act (actus reus), (2) as a
result of a mental disease or defect, (3) he does not have the substantial capacity to either
a. appreciate the wrongfulness of his conduct, or
b. conform his conduct to the requirements of the law (regardless of whether D
knows his conduct is wrong).
 The broadest of the four tests b/c encompasses all of the common law tests.
Smith (D was 1-week away from being discharged from Army. Stole vehicle, started a chase,
ended up shooting a cop.)
o Court upheld conviction on the ground that a jury could reasonably find Smith to
be sane.
Hinckley (D tried to assassinate Reagan; wounded Brady).
o Under MPC, able to successfully use the insanity defense on the ground that he
did not have the capacity to conform to the requirements of the law.
o Most jurisdictions switched back to M’Naghten test after this case.
Involuntary Intoxication:
 If because of someone’s involuntary intoxication, he can meet the elements of the
insanity defense, D may have a valid defense of legal insanity.
o Essentially, courts treat involuntary intoxication (usually due to drugs) as a mental
disease or defect.
_________________________
OTHER DEFENSES
Provocation:
MSS (Traditional):
 Heat of Passion (subjective)
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

Legally adequate provocation (LAP)
o Physical assault on D or mutual combat;
o Witnessing act of adultery (or right after adultery has occurred);
o Sexual assault on close relative;
o Unlawful arrest.
NOTE: Words are generally not LAP under MSS (some jxds say words are enough);
provocation cannot be cumulative (must be last event before killing); no rekindling.
No time to “cool off”
o No brightline standard, but reasonable persons cool off quickly.
o In Fraley, court established a 15-minute time limit.
MSS (Reform Jxds):
 Allow cumulative provocation, rekindling, and expanded cooling time. Also, verbal
provocation may be legally adequate.
 E.g., CA.
Extreme Emotional Disturbance (EED):
[MPC’s version of provocation defense]
MPC:
 No HoP, LAP, cooling time requirements.
o Allows for long-term build up (actor may “brood” over long period of time).
 Must have reasonable explanation for becoming emotionally disturbed.
o Subjective standard – taken from the POV of D.
o A RP would have become emotionally disturbed given the circumstances as the D
believed them to be (regardless of what the circumstances actually were).
Mistake of fact:
 Mistake of fact is a defense when it negates the mens rea of the crime (i.e., shows that D
did not possess the requisite mens rea).
 Morissette: (Junk dealer D took spent bomb casings from an air force facility and was
convicted of a crime that made it unlawful to “knowingly convert” government).
o Conviction was reversed on the ground that strict liability is appropriate only for
regulatory offenses.
o Mistake of fact negated the mens rea of knowing that the property was
government property.
 Guest: (D charged with statutory rape of a female victim. D mistakenly believed victim
to be older than she actually was. No mens rea in the statute.)
o Court held that the jury instruction on mistake of fact should have been given
because a mistake of fact would have negated the mens rea of negligence.
 Caveat: The majority of jurisdictions still have strict liability applied to
age of victims in rape cases regardless of how reasonable a mistake of fact
could be.
NOTE: Where there is no mens rea in the statute, a mistake of fact defense cannot exist, because
there is no mens rea for the mistake to negate.
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Mistake of law:
Common law: (very narrow)
 “Ignorance of the law is no excuse.”
o In most jurisdictions, this means that once a Prosecutor proves the mens rea,
ignorance of the law cannot excuse D’s conduct.
o The only way that a mistake of law could be proven is if the actor lacked the
requisite mens rea.
MPC: (narrow)
 There are exceptions to the common law rule (though they are rare).
o D’s mistake must be reasonable:
 Cheek: (D didn’t pay taxes because he thought he didn’t have to, and
because he thought that the imposition of taxes was unconstitutional.)
o Court held that an opinion that one’s constitutional right is violated
by taxes does not constitute a “good faith” mistake of law, nor
does a belief that the law is unconstitutional.
 Mistake of law is a defense when:
(1) It negates the mens rea required by the statute:
a. Bray: (D was charged with violating a statute that prevented him from
possessing a concealable firearm because he was a felon.)
i. D broke the law, but he did not do so knowingly as the statute
required, but rather negligently. Therefore, his mistake of fact
negated the mens rea of knowledge.
(2) D relies on an official statement of law which is valid at the time of reliance but
later overturned (i.e., D is misled).
 Reliance on a decision of the state’s highest court;
 Reliance on a statute or enactment (misreading a statute is not sufficient);
o Green: During Jim Crow era, D, a white woman, married a black
man, relying on a recently-passed anti-miscegenation statute which
was later declared unconstitutional and repealed.
o Court upheld Green’s conviction, but it was an unjust
ruling because when D got married, it was legal for her to
do so under the anti-miscegenation statute.
o This would be a valid mistake of law today.
 Reliance on an official interpretation of an elected public officer.
o Twitchell: (Ds relied on a church publication that quoted an
interpretation of the law at issue that had been made by the
Attorney General, in which he had stated that parents who chose to
treat their children with natural medicines would not be prosecuted
for involuntary manslaughter.)
o Court held that mistake of law defense was permissible
because the Attorney General was statutorily vested with
authority to advise on questions of law, and he was acting
in his officially capacity.
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
 Reliance on an administrative order (NOTE: Not discussed in class.)
(3) D does not have reasonable notice of the law.
a. Lambert: (D did not register as a felon with Los Angeles as required by
law because he did not have actual knowledge of the statute.)
o Court held that reasonable notice of the law was required because
the law was so obscure, and because D could not be presumed to
know of a duty imposed by law when there was nothing to alert
him of such a duty.
Mistake of law is (usually) no excuse where the D acted unlawfully as a result of
receiving erroneous legal advice from an attorney. This is so in order to prevent people
from forum shopping for attorneys who will give them the advice they want to hear.
o Hopkins: (State passed a law prohibiting ads/signs advertising the performance of
marriages. D advertised performance of marriage after speaking to a state
attorney, who advised him that he could put the ads up without breaking the law.)
 Court held that D’s actions did not constitute mistake of law because state
attorney is not an elected official nor a member of the state’s highest court.
 Caveat: A few jurisdictions do recognize these types of mistakes of law.
NOTE: Where there is no mens rea in the statute, a mistake of fact defense cannot exist, because
there is no mens rea for the mistake to negate.
Diminished Capacity:
Mental Disease/Impairment:
 MPC: Diminished mental capacity to form a mens rea is an admissible defense. (Note:
We use the MPC’s definition in this class.)
o Most jurisdictions say one can use this defense for specific intent crimes only
(may include purpose and knowledge).
o Some jurisdictions say that evidence of mental disease or defect is admissible
defense whenever it is relevant to prove D did or did not have necessary mens rea.
o Some jurisdictions do not allow for diminished capacity as a defense, and only
allow it to be presented as a mitigating factor during sentencing (worried about
false defenses and battles between experts).
 Mental impairment/disease must actually make someone incapable of forming the mens
rea.
 Burden of proof falls on the D to show that she did not in fact form the mens rea.
 Hendershott: (D argued that his adult minimal brain dysfunction prevented him for
forming the mens rea of the crime he had been charged with committing.)
o Court held that D could offer evidence of mental impairment as a defense to the
prosecution’s claim that he formed the requisite mens rea.
 Character flaws do not count.
o Bright: (D argued that she accepted stolen checks because she had an innate
tendency to be overly gullible and trusting of men.)
 Court upheld conviction on the ground that character flaws do not
constitute and cannot demonstrate mental disease.
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Intoxication:
 General rule: D can use it to negate purpose and knowledge, but not recklessness or
negligence.
o E.g., driving while intoxicated is reckless behavior (gross deviation from what a
RP would do). Therefore, this is a crime under which we convict people.
 Diminished capacity due to intoxication:
o Intoxication due to alcohol or drugs.
o Self-induced (voluntary) or involuntary.
 Don’t confuse this with actus reus – not the same
 Common law: Same intent requirement as for mental disease/defect (“specific intent”).
 MPC:
o Self-induced intoxication can be a valid defense if it negates an element of the
defense, unless reckless.
 Essentially, MPC makes a distinction between voluntary and involuntary
intoxication. So, if mens rea is recklessness, one cannot use voluntary
intoxication as a defense.
o HYPO: If D is drunk and speeding, hits someone and kills them.
 The reason D wasn’t aware of the risk is because D was too drunk is not a
valid defense. Court will presume she was aware of the risk because if she
had been sober, she would have realized the risk (this is a legal fiction).
o HYPO: If D is drunk and driving below speed limit, sign says “Slow Ahead –
Curve,” speed limit goes down 20 mph, but the sign blew away two days ago so
it’s not there anymore. Hits the curve too fast, crashes into another and kills them.
Has she recklessly caused the death of another?
 Under MPC, she may actually be able to succeed because she can argue
that a sober person would not have been able to reasonably know the risk
of driving around the curve at that speed. Prosecutor could counter that a
sober person would have been able to respond faster.

A court will not send intoxication defense to a jury if unlikely that the defense will work.
o Courts look at:
 How much D consumed.
 Amount of time D consumed.
 How much time elapsed between the last drink/smoke and the time of
commission of the crime.
o Cameron: (D claimed that she was extremely intoxicated after drinking ½ pint of
wine, which she drank with other people.
 Court acknowledged that D could use intoxication as a defense for her
crimes, yet upheld her conviction on the ground that no one can become so
intoxicated after drinking so little.
 In Cameron, court focused on the fact that she was making statements that
a reasonable person could make. The court does not send Cameron’s
defense to a jury because:
 She remembered what happened (she was coherent).
 She invoked the doctrine of self-defense.
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
Therefore, her level of intoxication was not high enough, and she
was sober enough to have purpose.
Involuntary vs. Voluntary Intoxication:
 Involuntary intoxication is pathological, or induced by another. UNEXPECTED &
UNANTICIPATED
 Voluntary/Self-Induced Intoxication: D knowingly introduces a substance into her body,
which she is aware has a tendency to cause intoxication. (The court will look at if a
reasonable person would have known the effects of consumption, as well as actual
knowledge. Did D know? Should D have reasonably known?)
 Intoxication is not self-induced if D doesn’t know or shouldn’t have known that the
substance is intoxicating, or if D introduces the substance pursuant to doctor’s orders.
o Example: Doctor prescribes medication, says okay to drive while medicated, D
does so and runs over someone because he is intoxicated.
 Involuntary: D is coerced to drink (drink or I’ll shoot you); D is tricked into drinking; D
thinks she is drinking a non-alcoholic drink that actually contains alcohol.
 Involuntary due to pathological intoxication: Extreme unexpected reaction from a tiny
amount of a substance (rare, but usually arises when someone has a medical condition
that leads to the reaction).
 Involuntary intoxication is treated, in essence, like the MPC treats diminished capacity.
However, it is a much broader defense because it can negate the mens rea of any crime.
Summary:
 MPC:
o
o
o
o

Allows for intoxication defense.
D must show that she was sufficiently intoxicated.
Voluntary intoxication negates only purpose and knowledge.
Involuntary intoxication negates all four mens rea.
Common law:
o Voluntary intoxication can only be used as a defense to specific intent crimes.
o Involuntary intoxication negates all four mens rea (same as MPC).
__________________
CONSPIRACY
A separate crime from the substantive crime one is actually trying to commit.
Therefore, D can be convicted of both conspiracy and the underlying crime, or just
conspiracy if the crime he agreed to commit was never carried out.
No conspiracy if separate crimes are committed or no agreement among the parties involved.
Ds are responsible for all crimes committed by co-conspirators in furtherance of the
conspiracy so long as the crimes were reasonably foreseeable consequences of the
conspiracy.
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Actus Reus:
Agreement + Overt Act (most jxds)
Agreement by 2 or more persons to commit a crime.
Express or implied agreement (often implied)
Prosecutor can prove agreement by:
Indirect evidence (e.g., head nod, wave, words), or
Concerted/group action
“Concert of action”
Working together to commit the crime;
All actors share the intent to commit the same crime.
Most jxds also require an overt act by one of the conspirators indicating that the plan is
getting off the ground (but often not for most serious crimes).
Any trivial act to show that the members are trying to set the conspiracy in motion
(i.e., trying to commit the crime that is the object of the conspiracy).
Only need one overt act by any of the members.
Mens Rea:
 Intent/purpose to join the conspiracy with purpose to commit a crime.
o Knowingly agree with purpose to commit a crime.
o Not sufficient to knowingly join if no purpose to commit a crime.
___________
POLICY
Psychology of negligence (p. 369):
 Common misperceptions that people who exhibit gross negligence are extremely
careless, irresponsible, or have deep character flaws.
 This is not true in many instances – people forget, get distracted, get used to
routines/habits.
o People make these mistakes all the time, but usually, consequences are not usually
that dire.
 Some people argue that these people should not be punished because doing so does not
carry out the purposes of punishment.
o Cannot deter people from forgetting; people know that such conduct is wrong.
 The question is: can criminal punishment deter if the probability of losing one’s child is
not enough deterrence?
o The criminal punishment is superfluous in this sense.
 Rehabilitation/incapacitation?
o Do such people look like dangerous, repeat offenders?
 Retribution/culpability:
o Are these people morally culpable?
o Do they owe something to society for causing this great harm?
o Do they seem culpable in the same way as people like Welansky & Levesque?
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