Criminal Law
Table of Contents:
The Process of Proof ..............................................................................................11
The Structure of the Criminal Justice System ................................................................................ 11
Criminal Justice Procedures .......................................................................................................... 11
The Process for Determining Guilt................................................................................................. 11
Presentation of Evidence .......................................................................................12
Standard for Admitting Evidence: ................................................................................................. 12
People v. Zackowitz (NY 1930) Probative value vs. Prejudicial effect ............................................... 13
Commonwealth v. Haight (PE 1987) Evidence of wealth................................................................... 13
Burden of Proof ............................................................................................................................ 14
In re Winship (1970) Beyond a Reasonable Doubt ............................................................................ 14
Punishment .............................................................................................................15
Blame and Punishment................................................................................................................. 15
Regina v. Dudley and Stephens (1884) Justification ........................................................................... 15
Theories of Punishment ................................................................................................................ 15
Retribution ......................................................................................................................................... 15
Deterrence .......................................................................................................................................... 15
Rehabilitation ..................................................................................................................................... 16
Incapacitation: .................................................................................................................................... 16
Sentencing: Assigning Punishment ................................................................................................ 16
Sentence Length ................................................................................................................................. 16
United States v. Milken (NY 1990) Hard to Detect crimes .............................................................................16
United States v. Casiano (1997) Mandatory Firearm Sentence ....................................................................17
United States v. Baird (1997) Increase Sentence For Cooperation ...............................................................17
Proportionality ................................................................................................................................... 17
Ewing v. California (CA 2003) Three Strikes Law ...........................................................................................17
What Should be Punished? ........................................................................................................... 18
Protected Conduct ............................................................................................................................. 18
Lawrence v. Texas (SCUSA 2003) Private Conduct .........................................................................................18
Euthanasia .......................................................................................................................................... 19
Cruzan v. Missouri Dept. Health (SCUSA 1989) ..............................................................................................19
Washington v. Glucksberg (SCUSA 1997) Legitimate State Interest .............................................................19
Actus Reus: The Criminal Act ..............................................................................20
Culpability: The Voluntary Act Requirement .................................................................................. 20
Model Penal Code Approach ............................................................................................................. 20
MPC §2.01(1): Requirement of Voluntary Act ..............................................................................................20
MPC §1.13: Element and Material Elements of an Offense ...........................................................................20
Common Law Approach ..................................................................................................................... 20
Contents | 1
Martin v. State, (AL 1944) Involuntary Act ....................................................................................................20
People v. Newton, (CA 1970) Unconsciousness .............................................................................................21
People v. Decina, (NY 1956) Seizure ...............................................................................................................21
Changing Patterns of Excuse .............................................................................................................. 21
Robinson v. California, (SCUSA 1962) Addiction as Disease ..........................................................................21
Powell v. Texas, (SCUSA 1968) Alcoholism as a Disease? ..............................................................................21
State ex rel. Harper v. Zegeer,(WV 1982) Alcoholism as Mental Disability ...................................................21
United States v. Moore,(1973) Addiction as Defense to Possession? ...........................................................21
United States v. Alexander, (1973) Rotten Social Background ......................................................................21
Omissions .................................................................................................................................... 22
Model Penal Code Approach ............................................................................................................. 22
MPC § 2.01(3) Omission as Basis of Liability ...............................................................................................22
Common Law Approach ..................................................................................................................... 22
Jones v. United States, (1962).........................................................................................................................22
Pope v. State, (MD 1979) ................................................................................................................................22
Mens Rea: The Guilty Mind .................................................................................23
Culpable Mental States................................................................................................................. 23
Model Penal Code Approach ............................................................................................................. 23
MPC §2.02: General Requirements of Culpability. ........................................................................................23
MPC §1.13: Element and Material Elements of an Offense ...........................................................................23
Common Law Approach ..................................................................................................................... 24
Regina v. Cunningham, (1957) Malice – Intent Do Harm ..............................................................................25
Regina v. Faulkner, (1877) Malice - Recklessness ..........................................................................................25
State v. Hazelwood, (AK 1997) Criminal Negligence – Gross Recklessness ...................................................25
Santillaness v. New Mexico, (NM 1993) Criminal Negligence ........................................................................25
United States v. Jewell,(1976) Knowingly – Deliberate Ignorance ................................................................25
Dilberate Ignorance .......................................................................................................................................25
United States v. Alston-Graves,(1996): Willful Blindness “Ostrich” Instructions..........................................25
MPC §2.02(7): Requirement of Knowledge Satisfied by Knowledge of High Probability ............................25
Mistake of Fact............................................................................................................................. 26
Model Penal Code Approach ............................................................................................................. 26
MPC § 2.04. Ignorance or Mistake .................................................................................................................26
MPC § 213.6(1) Mistake as to Age ................................................................................................................26
Common Law Approach ..................................................................................................................... 26
Regina v. Prince,(1875) Morally Wrong Principle – Strict Liability................................................................26
People v. Olsen, (CA 1984) Lesser Crime Principle .........................................................................................26
B. v. Director of Public Prosecutions,(2000) Rejects Morally Wrong Principle (Prince) ................................26
Garnett v. State,(MD 1993) Reasonable Mistake ..........................................................................................27
Strict Liability ............................................................................................................................... 27
Model Penal Code Approach ............................................................................................................. 27
MPC § 2.05.....................................................................................................................................................27
Common Law Approach ..................................................................................................................... 27
United States v. Balint, (SC 1922) Statute Violation ......................................................................................27
Morissette v. United States, (SCUSA 1952) Statute: No Mens Rea Must Have Intent ..................................28
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Staples v. United States, (SCUSA 1994) Statute: No Mens Rea Must Have Intent ........................................28
State v. Guminga, (MN 1986) Criminal Penalties for Strict Liability .............................................................28
Mistake of Law ............................................................................................................................. 28
Model Penal Code Approach ............................................................................................................. 28
MPC § 2.04 Ignorance or Mistake ..................................................................................................................28
MPC §2.02(9) Culpability as to Illegality of Conduct. ...................................................................................29
Common Law Approach: Mistakes About/Of Law ............................................................................ 29
People v. Marrero, (NY 1987) .........................................................................................................................29
Regina v. Smith, (1974)...................................................................................................................................29
Cheek v. United States,(SCUSA 1991) Voluntary Violation of Known Legal Duty .........................................29
Knowingly Do Something Cases ....................................................................................................................29
Common Law Approach: Mistakes From Legal Authorities.............................................................. 30
Lambert v. California, (SCUSA 1957) Strict Liability Statute ..........................................................................30
Rape .........................................................................................................................31
Actus Reus ................................................................................................................................... 31
Model Penal Code Approach ............................................................................................................. 31
MPC § 213.1. Rape and Related Offenses. ....................................................................................................31
Common Law Approach ..................................................................................................................... 31
Force and Resistance .....................................................................................................................................32
State v. Rusk (MD 1981) Hazel Rule ...........................................................................................................32
Nonphysical Threats ......................................................................................................................................32
State v. Thompson, (MT 1990) ...................................................................................................................32
Commonwealth v. Mlinarich, (PA 1985) .....................................................................................................32
Eliminating the Force Requirement ..............................................................................................................32
State in the Interest of M.T.S., (NJ 1992) Nonconsensual Sexual Penetration .........................................32
M.C. v. Bulgaria (EU 2003) .........................................................................................................................32
Mens Rea ..................................................................................................................................... 33
Mistake of Fact ................................................................................................................................... 33
Commonwealth v. Sherry, (MA 1982) Mistake of Fact Must Be Reasonable ................................................33
Commonwealth v. Fischer, (PA 1998) Reasonable Mistake ...........................................................................33
Problems of Proof ........................................................................................................................ 33
Corroboration and Jury Instructions ................................................................................................. 33
Model Penal Code Approach .........................................................................................................................33
MPC § 213.6. (5) Testimony of Complainants ..........................................................................................33
Common Law Approach.................................................................................................................................33
United States v. Wiley (1974) Corroboration Requirement ......................................................................33
Cross-Examination and Shield Laws .................................................................................................. 34
Federal Rules of Evidence: .............................................................................................................................34
Rule 403: ....................................................................................................................................................34
Rule 404(b): ...............................................................................................................................................34
Rule 412. Sex Offense Cases; ...................................................................................................................34
Common Law Approach.................................................................................................................................35
State v. DeLawder (MD 1975) Prior Sexual Behavior for Proof of Pregnancy ..........................................35
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Commonwealth v. Harris (VA 1993) Impeachment Purpose .....................................................................35
Neeley v. Commonwealth (VA 1993) Alternative Explanation for Physical Evidence ..............................35
Government of the Virgin Islands v. Scuito (1980) Psychiatric Evaluation ................................................35
Homicide .................................................................................................................36
Intentional Killings: Murder .......................................................................................................... 36
Model Penal Code Approach ............................................................................................................. 36
MPC § 210.2. Murder. ....................................................................................................................................36
Common Law Approach ..................................................................................................................... 36
Two Meanings of Premeditation ...................................................................................................................36
Commonwealth v. Carroll (PA 1963) No Time Too Short ..........................................................................36
State v. Guthrie (WV 1995) Time For Reflection .......................................................................................36
Provocation: Manslaughter .......................................................................................................... 38
Model Penal Code Approach ............................................................................................................. 38
MPC § 210.3. Manslaughter ...........................................................................................................................38
People v. Casassa (NY 1980) ...........................................................................................................................38
Common Law Approach ..................................................................................................................... 38
Girouard v. State (MD 1991) Majority Approach – Provocation Must Be Physical ......................................39
Maher v. People (MI 1862) Minority Approach – Reasonable Provocation .................................................39
Unintentional Killings ................................................................................................................... 40
Model Penal Code Approach ............................................................................................................. 40
MPC § 210.3. Manslaughter. ..........................................................................................................................40
MPC § 2.02(c) Recklessly. .............................................................................................................................40
MPC § 210.4. Negligent Homicide. ...............................................................................................................40
MPC § 2.02(d) Negligently. ...........................................................................................................................40
People v. Hall (CO 2000) .................................................................................................................................40
Common Law Approach: Involuntary Manslaughter ........................................................................ 40
Commonwealth v. Welansky (MA 1944) Wanton or Reckless .......................................................................40
State v. Williams (WA 1971) Ordinary Negligence ........................................................................................41
Distinguishing Murder and Manslaughter ..................................................................................... 41
Model Penal Code Approach ............................................................................................................. 41
MPC § 2.02(c) Recklessly. .............................................................................................................................41
§ 210.3. Manslaughter. ...................................................................................................................................41
§ 210.2. Murder. .............................................................................................................................................41
Common Law Approach ..................................................................................................................... 41
Commonwealth v. Malone (PA 1946) Unintentional Murder........................................................................41
United States v. Fleming (1984) Drunk Driving ..............................................................................................42
Felony Murder ............................................................................................................................. 43
Model Penal Code Approach ............................................................................................................. 43
§ 210.2.(1)(b) Murder. ....................................................................................................................................43
Common Law Approach ..................................................................................................................... 43
Basic Doctrine ................................................................................................................................................43
Regina v. Serne (1887) Historic Rule ..........................................................................................................43
People v. Stamp (CA 1969) In the Course of ..............................................................................................43
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The “Inherently Dangerous Felony” Limitation ............................................................................................44
People v. Stewart (RI 1995) Majority: Felony in Manner of Commission .................................................44
Hines v. State (GA 2003) .............................................................................................................................44
People v. Phillips (CA 1966) Minority: Felony in the Abstract ...................................................................44
The Merger Doctrine......................................................................................................................................44
People v. Burton (CA 1971) Independent Felonious Purpose ...................................................................44
People v. Mattison (CA 1971) Independent Purpose Test.........................................................................44
People v. Hansen (CA 1995) Criticism of Merger Doctrine ........................................................................44
Killings Not “In Furtherance” of the Felony ..................................................................................................45
Killings After Felony Has Ended.................................................................................................................45
Killings by Felons but Not in Furtherance .................................................................................................45
Killings by Non-Felons ...............................................................................................................................45
State v. Canola (NJ 1977) Agency Theory – Must be by a Felon ...........................................................45
Killing of Felon ...........................................................................................................................................45
State Approaches ..................................................................................................................................45
MPC v. PA Homicide Statutes ..............................................................................47
Death Penalty..........................................................................................................49
The Current Context ..................................................................................................................... 49
Policy Considerations ......................................................................................................................... 49
Constitutional Limitations.................................................................................................................. 49
Gregg v. Georgia (SCUSA 1976) Cruel and Unusual? .....................................................................................50
Atkins v. Virginia (SCUSA 2002) Mentally Retarded ......................................................................................50
Roper v. Simmons (2005) Juveniles ................................................................................................................50
Tison v. Arizona (1987) Felony Murder ..........................................................................................................50
McCleskey v. Kemp (SCUSA 1987) Racism? ....................................................................................................50
Significance of Resulting Harm ............................................................................51
Causation Principles ..................................................................................................................... 51
Foreseeability and Coincidence ......................................................................................................... 51
Model Penal Code Approach .........................................................................................................................51
MPC § 2.03. Causal Relationship Between Conduct and Result ...............................................................51
Common Law Approach.................................................................................................................................52
People v. Acosta (CA 1991) Foreseeability: But No Mens Rea ..................................................................52
People v. Arzon (NY 1978) Foreseeable Harm ...........................................................................................52
People v. Warner-Lambert Co. (NY 1980) Foreseeable Cause ...................................................................52
Subsequent Actions Intended to Produce the Result ....................................................................... 53
Model Penal Code Approach .........................................................................................................................53
MPC §210.5. Causing or Aiding Suicide. ..................................................................................................53
Common Law Approach.................................................................................................................................53
People v. Campbell (MI 1983) Hope of Death ............................................................................................53
People v. Kevorkian (MI 1994) Assisted Suicide ........................................................................................53
Assisted Suicide: Current Law ...................................................................................................................53
Subsequent Human Action ............................................................................................................................53
Subsequent Acts of Third Parties ..................................................................................................................54
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Actions That Recklessly Risk the Result ........................................................................................................54
Attempts ..................................................................................................................55
Model Penal Code Approach......................................................................................................... 55
MPC §5.01. Criminal Attempt. ......................................................................................................................55
MPC: §5.05Grading of Criminal Attempt, .....................................................................................................56
Common Law Approach ..................................................................................................................... 56
Mens Rea........................................................................................................................................................57
Smallwood v. State (MD 1996) Specific Intent ..........................................................................................57
Thacker v. Commonwealth (1922) More than Recklessness .....................................................................57
Actus Reus ......................................................................................................................................................57
People v. Rizzo (NY 1927) Dangerous Proximity Test ................................................................................57
McQuirter v. State (AL 1953) Equivocality Test .........................................................................................57
United States v. Jackson (1977) Substantial Test – Majority Approach....................................................57
Statute Defined Attempts .........................................................................................................................58
Solicitation ................................................................................................................................... 59
Model Penal Code Approach ............................................................................................................. 59
MPC § 5.02. Criminal Solicitation. ................................................................................................................59
Common Law Approach ..................................................................................................................... 59
United States v. Church (1989) Solicitation as Attempt ............................................................................59
State v. Davis (MO 1928) Solicitation Not an Attempt .............................................................................59
Attempted Solicitation ....................................................................................................................... 59
Impossibility................................................................................................................................. 61
Modern Penal Code Approach ........................................................................................................... 61
MPC § 5.01. Criminal Attempt. .....................................................................................................................61
MPC § 5.05.(2) Mitigation in Cases of Lesser Danger...................................................................................61
People v. Dlugash (NY 1977) Modern Approach/MPC ..................................................................................61
United States v. Oviedo (1976) Lack of Purpose ............................................................................................61
Common Law Approach ..................................................................................................................... 61
People v. Jaffe (1906) Historic ........................................................................................................................61
United States v. Berrigan (1973) Mistake of Fact ..........................................................................................61
Complicity and Conspiracy ...................................................................................62
Accomplice Liability ...................................................................................................................... 62
Mens Rea ............................................................................................................................................ 62
Model Penal Code Approach: ........................................................................................................................62
MPC § 2.06. Liability for Conduct of Another; Complicity. . . . ...............................................................62
Hicks v. United States (1893) Intent to Encourage ....................................................................................63
State v. Gladstone (WA 1970) Knowledge Not Enough .............................................................................63
Common Law Approach.................................................................................................................................63
People v. Luparello (CA 1987) Natural and Probably Consequence Rule .................................................63
Roy v. United States (1995) Limits on Luparello “Ordinary Court of Things .............................................63
Regina v. Hyde (1991) Joint Enterprise ......................................................................................................63
State v. McVay (RI 1926) Recklessness for Attendant Circumstances ......................................................64
People v. Russell (NY 1998) Recklessness for Attendant Circumstances ..................................................64
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Other Approaches to Mens Rea ....................................................................................................................64
Causation and Complicity ..............................................................................................................................65
Wilcox v. Jeffery (1951) Encouragement ........................................................................................................65
State v. Tally (1894) Uncommunicated Aid ...................................................................................................65
Attempted Complicity ...................................................................................................................................65
Attempted Solicitation ..................................................................................................................................65
Complicity by Omission .................................................................................................................................65
Feigned Principal ............................................................................................................................................66
Entrapment ....................................................................................................................................................66
Problems with Derivative Nature of Accomplice Liability ................................................................ 67
Conspiracy ................................................................................................................................... 68
Duration:............................................................................................................................................. 68
Krulewitch v. United States (SCUSA 1949) Theory of implied, ongoing conspiracy ......................................68
Defenses: ............................................................................................................................................ 68
Punishment: ....................................................................................................................................... 68
Model Penal Code Approach ............................................................................................................. 69
MPC § 5.03. Criminal Conspiracy. ................................................................................................................69
Conspiracy as a Form of Accessorial Liability .................................................................................... 69
Common Law: ................................................................................................................................................69
Pinkerton v. United States (SCUSA 1946) Vicarious Liability .....................................................................70
State v. Bridges (NJ 1993) Expansion of Pinkerton ...................................................................................70
US v. Blackmon (1988) Liability for prior acts of conspirators ..................................................................70
United States v. Alvarez Unintended turn of events – expands Pinkerton further ...................................70
The Actus Reus of Conspiracy ............................................................................................................ 70
Overt Act Requirement ..................................................................................................................................70
Proof ...............................................................................................................................................................71
Interstate Circuit v. United States Inferred agreement .............................................................................71
The Mens Rea of Conspiracy .............................................................................................................. 71
Mistake of Law ...............................................................................................................................................71
People v. Lauria (CA 1967) Knowledge of Supplier equates to purpose...................................................71
Scope of Agreement: Single or Multiple Conspiracies ...................................................................... 72
Kotteakos v. United States (SCUSA 1946) ‘Spokes’ Conspiracy .....................................................................72
Anderson v. Superior Court (CA 1947) Spokes with Wheel ............................................................................72
United States v. Bruno (1939) Chain Conspiracy............................................................................................72
United States v. Morris (1995): Competition in chain Conspiracy? ...............................................................73
United States v. McDermott (2001) Unknown Third Party ............................................................................73
Multiple Objectives ............................................................................................................................ 73
United States v. Braverman (1942) One Conspiracy for Multiple Crimes .....................................................73
Albernaz v. United States (1981) Limits Braverman to provisions of same statute .....................................73
Justifications ...........................................................................................................74
United States v. Peterson (1973) Self-Defense ................................................................................... 74
Reasonable Person Standard ........................................................................................................ 74
People v. Goetz (1986) Reasonable Belief – Modified Objective Standard ..................................................74
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Imminence of Threat .......................................................................................................................... 74
Limits on use of deadly force ............................................................................................................. 75
Risk of injury to others ....................................................................................................................... 75
Burden of Proof .................................................................................................................................. 75
Third Party comes to aid .................................................................................................................... 75
Exceptions to the right of self-defense .......................................................................................... 75
Retreat ................................................................................................................................................ 75
State v. Abbott (NJ 1961) Retreat ..................................................................................................................76
United States v. Peterson (1973) Cannot Be Initial Aggressor .......................................................................76
Nonlethal aggressor ........................................................................................................................... 76
Re-initiating an encounter ................................................................................................................. 76
“Free from fault” requirement .......................................................................................................... 76
Battered Women Syndrome ......................................................................................................... 77
Effects of Expert Testimony on Reasonableness Standard............................................................... 77
Battered woman hires or persuades 3rd party to kill ........................................................................ 77
State v. Kelly (NJ 1984) Expert Testimony......................................................................................................77
Nonconfrontational Self-Defense: Imminence of Threat Under BWS ............................................. 77
State v. Norman (NC 1989) .............................................................................................................................77
Commonwealth v. Sands (VA 2001) p. 768.....................................................................................................77
Protection of Property and Law Enforcement ................................................................................ 78
Statutory Approaches ........................................................................................................................ 78
People v. Ceballos (CA 1974) Trap Gun ..........................................................................................................78
Defense of Other types of Property .................................................................................................. 78
Officer Use of Force ............................................................................................................................ 78
Durham v. State (ID 1927) ..............................................................................................................................79
Tennessee v. Garner (SCUSA 1985) Use of deadly force to prevent escape .................................................79
Necessity ..................................................................................................................80
Prison Escape Defense: ...................................................................................................................... 80
People v. Unger (IL 1977) Lovecamp Conditions............................................................................................80
Borough of Southwark v. Williams (1971) Homeless .....................................................................................80
Commonwealth v. Leno (MA 1993) Needle exchange ...................................................................................80
Commonwealth v. Hutchins (MA 1991) Medical Uses of Marijuana .............................................................80
United States v. Schoon (1992) Civil Disobedience ........................................................................................81
Necessity Defense Can NEVER be used to justify killing to save someone ..................................................81
Maximizing Lives Principle: ...........................................................................................................................81
Public Committee Against Torture v. State of Israel (1999) Torture ..............................................................82
Bybee Memorandum .....................................................................................................................................82
EXCUSES ...............................................................................................................83
Duress.......................................................................................................................................... 83
Model Penal Code Approach ............................................................................................................. 84
MPC § 2.09. Duress........................................................................................................................................84
Common Law Approach ..................................................................................................................... 85
Contents | 8
State v. Toscano (NJ 1977) .............................................................................................................................85
Intoxication .............................................................................................................86
Voluntary Intoxication .................................................................................................................. 86
Traditional Views: .............................................................................................................................. 86
• Voluntary intoxication can be used as a defense against specific intent crimes - Hood .............................86
People v. Hood (CA 1969) Specific vs. General Intent (Hood) .......................................................................86
State v. Stasio (NJ 1979) Limits on Hood........................................................................................................86
Montana v. Egelhoss (1996) Right to Due Process ........................................................................................86
Model Penal Code Approach ............................................................................................................. 87
MPC § 2.08. Intoxication. ..............................................................................................................................87
Involuntary Intoxication ............................................................................................................... 87
Regina v. Kingston (1993) Majority Approach ...............................................................................................87
Mental Disorder .....................................................................................................88
Competing Formulations .............................................................................................................. 90
Common Law Approach ..................................................................................................................... 90
M’Naghten’s Case (1843) M’Naghten Test ....................................................................................................90
United States v. Lyons (5th Cir. 1984) Post Hinckley Reaction (1982) ............................................................90
Model Penal Code Approach ............................................................................................................. 90
MPC § 4.01. Mental Disease or Defect Excluding Responsibility. ..................................................................90
Blake v. United States (1969) MPC Standard .................................................................................................91
The Meaning of Wrong ................................................................................................................. 91
State v. Crenshaw (1983) Religious Beliefs ....................................................................................................91
Legal vs. Moral Wrong: ..................................................................................................................................91
The Meaning of Mental Disease or Defect ..................................................................................... 91
State v. Guido (NJ 1963) Problem of defining disease...................................................................................92
Diminished Capacity ..............................................................................................94
United States v. Brawmer (1972) Expert Testimony .......................................................................... 94
Clark v. Arizona (SCUSA 2006) Mott Restriction ................................................................................ 94
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Contents | 10
The Process of Proof
The Structure of the Criminal Justice System
General View: The criminal justice is society’s primary mechanism for enforcing standards of conduct
designed to protect the safety and security of individuals and the community.
Extremely decentralized
Must deal with high volume of cases: process of mass production
Chronic shortage of resources and personnel
Selection through broad, unguided and uncontrolled discretion
Features:
• The police: crimes are defined, in practice, by the police officer on the beat.
• Prosecutors: The decision whether there is sufficient evidence to send a case to trial is initially made
by the prosecutor, therefore they wield enormous power.
• Defense counsel:
Appointed counsel system: a judge or court official selects defense counsel from a list. Pro bono is
rare.
Contract system: lawyer(s) agree that over a year, in return for a retainer paid by the government,
they will represent a specified number of indigent criminal defendants.
Defender system: an agency funded by city, county or state represent most or all criminal defendants
in the jurisdiction.
• Judges: deal with a high number of cases are selected through various mechanisms.
• Corrections: incarceration no longer aims to correct offenders. Punishment and incapacitation have
become the system’s principal purpose.
Criminal Justice Procedures
• Initial stages of a case:
1. Investigation:
Indentify perpetrators
Assemble sufficient evidence to prove guilt beyond a reasonable doubt.
2. Dismissal and diversion: Roughly half of the cases initiated by an arrest are dismissed at an early
stage.
Not guilty, can’t be proved guilty, too many cases, mental emotional or social problems can be
dealt with better by other agencies.
• Pretrial release: most are released within 24 hours
Money bail system: no financial incentive to appear.
• The Guilty plea: more than 90% - often through negotiation over charge or sentence.
• The Trial: about 4% go to trial
• Sentencing: less formal than adjudication
The Process for Determining Guilt
An Overview of Pleas and Trials
Vast majority of criminal convictions are the result of guilty pleas entered without any formal fact
finding.
• Conflicts of interest: lawyers self interest skewing bargaining process
• Agency costs: can potentially influence an attorney.
○ Arnold Enker: Objective truth? Key element is that the plea is the likely jury result. Might even be
more intelligent since juries can come to the incorrect conclusion especially since they must determine
extreme guilt or innocence with little room for intermediate judgment.
Process of Proof | 11
○ Arlen Specter: Justice in terms of sentencing may be better achieved through plea bargaining.
○ Albert W. Alschuler: Argues against Specter, plea bargaining can introduce more irrationality into the
system. Juries are exposed to rules of evidence in order to direct them to relevant issues.
○ Stephanos Bibas: Conventional wisdom of bargaining is based on expected outcomes of trial and
sentencing. Problems with the theory of “shadow of trial” model (influence of evidence and expected
punishment), therefore bargaining adds another layer of distortions that warp the fair allocation of
punishment.
• Formal Trial procedure:
○ Jury selection:
Venire: panel of prospective jurors
Voir dire: questioning of jurors
Peremptory challenges: removing a juror without cause
After hitting 12, they are sworn.
○ Presentation of case: indictment read, opening statements, motions can be made
Prosecution calls witness. Judge must decide bounds of permissible testimony.
Defense can stand on presumption of innocence and move for a directed verdict or judgment of
acquittal or present their own evidence.
Prosecution can present rebuttal evidence.
○ Judge gives instructions to the jury
Jury retires to deliberate
○ After a guilty verdict there is imposition of sentence.
○ Trial terminates, can appeal.
○ No verdict, then it is a mistrial and defendant can be retried.
Presentation of Evidence
The order of proof:
○ Prosecution first to prove elements of the offense(s) charged; needs to sustain its burden of proof.
○ Defense: evidence to refute the prosecution’s case in chief or to establish affirmative defense.
○ Prosecution has chance for rebuttal.
○ Defense can answer by rejoinder.
Each witness:
○ Direct examination (party who called witness)
○ Cross-examination (opposing party)
○ Re-direct
○ Re-cross
Standard for Admitting Evidence:
• Only relevant evidence is admissible
Evidence is relevant if it is BOTH probative and material.
○ Probative: only if tends to establish the proposition for which it is offered – if the proposition is
more likely to be true given the evidence than it would be without the evidence
○ Material: if the proposition that the evidence tends to prove is one that will affect the outcome of
the case under applicable law
○ Irrelevant: does not establish the proposition in question or not material to the outcome of the
case
Federal Rules of Evidence:
Process of Proof | 12
FRE Rule 401: “Relevant evidence” means evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less probable than it
would be without the evidence
FRE Rule 402: All relevant evidence is admissible, except as otherwise provided . . . . Evidence which
is not relevant is not admissible
• Evidence not admissible
○ Privilege: right to withhold certain kinds of testimony, often to protect particular interests of a
witness or specially important relationships with others.
5th amendments: Privilege against self-incrimination
○ Exclusionary Rule: evidence obtained through an illegal search
○ Prejudicial: evidence whose probative value is outweighed by prejudicial effect - affect result in
some improper way.
Prejudice is involved if the jury is likely to overestimate the probative value of the evidence or if
the evidence will arouse undue hostility toward one of the parties
Prior crimes: may not be introduced to show that the accused had an evil disposition and thus was
more likely to have committed the offense charged
FRE 403: Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion or the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative evidence
FRE 404(b): Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident
• EXCEPTIONS to prejudice rule
○ The impeachment exception: allows prior crimes evidence to be admissible to impeach a
defendant’s credibility while not bearing on guilt or innocence
Person convicted of a crime may be more likely to give false testimony. Passed crimes can be
introduced in cross examination for the purpose of judging the credibility of testimony.
○ Prior sex offenses:
FRE 413(a): In a criminal case in which the Δ is accused of an offense of sexual assault, evidence of the
Δ’s commission of another offense(s) of sexual assault is admissible, and may be considered for its
bearing on any matter to which it is relevant.
FRE 414(a): prior child molestation acts admissible in prosecution of other acts of child molestation
ALSO must pass FRE 403 requirement of probative value
People v. Zackowitz (NY 1930) Probative value vs. Prejudicial effect
F: Δ’s wife insulted by group, Δ threatens to kill, comes back later after choosing a gun, gets into a fight,
shoots and kills
Rule: Federal Rules of evidence 403 and 404(b) Evidence may not be introduced to show evil
disposition (character issue) and thus more likely to commit the offense charged (cannot prejudice the
jury)
Commonwealth v. Haight (PE 1987) Evidence of wealth
F: Δ charged with burglary, Δ’s girlfriend testified that Δ was poor and on welfare
Rule: Reasonable possibility that an error may have contributed to a conviction  the error is not
harmless. The burden of establishing an error as harmless rests with the Commonwealth
Issue of wealth is not harmless: “proves too much against too many”
Exception: lack of funds prior to crime admissible when there is sudden wealth after the crime
US v. McKenzie
Process of Proof | 13
Burden of Proof
In re Winship (1970) Beyond a Reasonable Doubt
F: Juvenile convicted of larceny by preponderance of the evidence
Rule: Due Process Clause protects the accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime charged
Would rather let guilty go free then convict an innocent – society disutility
States: can impose a higher burden but not lower
Process of Proof | 14
Punishment
Blame and Punishment
Regina v. Dudley and Stephens (1884) Justification
F: Δs shipwrecked, cannibalized boy on boat
Necessity: no absolute necessity to preserve one’s life
Theories of Punishment
Retribution: backward looking, deserve
○ Kant: Right of retaliation (jus talionis)
Murderers must be executed, no other just punishment
○ Moore: Retributive punishment is justified by the moral culpability of those who receive it, offender
deserves it. Society has a duty to punish.
○ Hart: Three Factors:
Person punished for doing something morally wrong
Punishment matches the offence
Punishing is itself just or morally good.
Pros and Cons:
○ Hart: Theory of two wrongs make a right
○ Morris: Self restraint is for the good of others, not restraining yourself gives you advantage over those
who are still restraining. Under this idea punishment is reasonable and just.
○ Murphy: Being part of a community is obeying rules that are benefit to everyone. Punishment is
payment for these benefits. The typical criminal does not receive these benefits. Therefore society
needs to be restructured in order to give the typical criminal the benefits that others receive.
○ Mackie: “I pay back” - theory someone pays criminal back with punishment for what he has done. Fair
play, society is based on rules and criminal gains an unfair advantage by breaking the rules, in order to
restore fairness this gained advantage must be taken away. But this theory has little relation to most
cases of punishment and produces inconsistent results relative to one another.
Variations on Retribution:
• Vengeance: Stephen - Based on the principle it is morally right to hate criminals, punishment reflects
this sentiment.
○ Victim impact statements: statement from victims and family members describing consequences of
crime (extent of grief etc) sometimes include recommendation as to what they regard as suitable
punishment. Related to blameworthiness or revenge?
Deterrence: present looking, prevent
○ Bentham: “Rational-Actor Model” - Everyman calculates, despite arguments against it, therefore
punishment can be an effective deterrent.
Criticism:
○ Robinson and Darley: Set of assumptions of deterrence cannot be sustained. Deterrence strategies
may generate crime in other ways.
○ Deterrence optimizing analysis for formulating criminal laws may have little to no effect
Offenders need to know the rules, perceive costs of violation are great than perceived benefits,
and that this knowledge will have some effect on his conduct.
One thing goes wrong, the idea of deterrence falters, and commonly offenders do not know all 3.
○ Fleisher: Choices of criminals are defaults; they satisfy their needs in the easiest most familiar ways,
their learned behavior while going through life.
Punishment | 15
○ Rational actors? Hard to determine what is the proper punishment level for effective deterrence, if
punishment is high this encourages more criminal behavior (drugs become more expensive for addicts)
○ Certainty vs. severity
Can always increase the risk of conviction and severity of punishment to increase deterrence
But difficult to implement certainty of punishment (conviction) on wrongdoers
And severity increases have doubtful deterrent effect
Rehabilitation: forward looking, cure
○ Does Rehabilitation work?
Hard to know for sure
Conclusion that “nothing works” has become fixed in public’s mind
○ Martinson: first disagreed with rehabilitation but later changed his mind.
Failed to examine differences in treatment programs etc. some places could be working
Focused to much on recidivism (committing a crime again)
Probably works for some not for others, need to identify those more likely to work for.
Von Hirsch & Maher: Treatment can’t rely solely on the blameworthiness of conduct, amenability for
treatment depends on social and personal characteristics. But unfair to eliminate one from the other, (ie
sentence a murder to jail for a week since he is likely to be rehabilitated). But setting bounds adds
further complications.
Incapacitation:
○ Zimring, Hawkins: Incapacitation is central - prisons are designed to restrain those inside
○ Dilulio: Prisons are cheap and punish offenders, express society’s disapproval, teaches/deters fellow
felons, treats and educates. More prisons means less crime.
Critics:
○ Dilulio’s statistics are misleading: those released, commit lesser (easily repeatable) offenses.
○ Selective incapacitation: try to find those that commit a lot of crimes (high rate offenders)
○ Ethical concern: some would be imprisoned longer for same offense as others - unfair
Hard to accurately distinguish high risk offenders
Unfair to punish for crimes not yet committed
Hard to predict future crimes
Sentencing: Assigning Punishment
Usually at discretion of trial judge:
Mandated specified punishments for some crimes
Administrative agencies promulgate sentencing guidelines
Subject to appellate review
Three General Purposes Governing the Definition of Offenses:
1. Culpability – to safeguard conduct that is without fault from condemnation as criminal.
2. Legality – to give fair warning of the nature of the conduct declared to constitute an offense.
3. Proportionality – to differentiate on reasonable grounds between serious and minor offenses.
Sentence Length
United States v. Milken (NY 1990) Hard to Detect crimes
F: Δ convicted of securities fraud, good member of the community
S: 10 year sentence to deterrence others from committing same hard to detect financial crimes
Punishment | 16
Commentary:
○ Wheeler, Reflections:
Factors considered for sentencing:
Seriousness of offense
Level of culpability
Deterrence effect
Paradox of leniency and severity or Dilemma of praiseworthy conduct and blameworthy status:
Does good stuff but also in a higher social position with higher standard if one fails
Culpability of committing hard to detect crimes?: “stepping just over to the wrong side of the law”
United States v. Casiano (1997) Mandatory Firearm Sentence
F: Δs on drugs stole the car of Father Shinn and attempted to kill him
R: Statutory mandating 20 year firearm sentences
United States v. Baird (1997) Increase Sentence For Cooperation
F: Δ cooperated with government in bringing down Philly’s ‘Infamous 5’ that he was originally apart of
H: Instead of reducing sentence for cooperation judge increased it because Baird’s illegal searches and
seizures while an officer ‘severely disrupted of many government functions’
Proportionality
• Four Principles of Proportionality Review (Ewing):
1. Primacy of the legislature
2. Variety of legitimate penological schemes
3. Nature of our federal system
4. Requirement that proportionality review be guided by objective factors
• 8th Amendment Principle: Cruel and unusual
○ Usually applies only to death penalty sentences:
Harmelin v. Michigan (1991): 8th Amend: “narrow proportionality principle” for noncapital sentences
“Does not require proportionality only forbids extreme grossly disproportionate”
Effect: Rarely are sentences mitigated for noncapital sentences
• Punitive Damages: de novo review rather than deferential
US v. Bajatkigian (1998): lose $350k for failing to declare upon leaving country
Solem principle: – grossly disproportionate
State Farm v. Campbell (2003): torts case – single ratio of compensatory to punitive damages
• State Constitutions:
People v. Bullock (MI 1992): overturned MI three strike statute
State Constitution says “cruel OR unusual punishment”
In re Lynch (CA 1927): “cruel OR unusual” overturned 1 year to life for 2nd indecent exposure
IN, ME, NE, NH, OR constitutions: “all penalties shall be proportioned to the nature of the offense”
• Three Strikes Laws:
Ewing v. California (CA 2003) Three Strikes Law
F: π stole golf clubs, convicted of 4 prior thefts, sentenced to 25 years to life
Solem Three Factors - 8th Amendment ‘disproportionate‘ violation:
1. the gravity of the offense and the harshness of the penalty
Punishment | 17
2. the sentences imposed on other criminals in the same jurisdiction
3. the sentences imposed for commission of the same crime in other jurisdictions
UPHELD – “simply incapable of conforming to the norms of society as established by criminal law”
Scalia: Proportionality goes beyond one step of offense compared to punishment and adds plurality of
the State’s public safety interest.
Dissent: Comparative analysis will validate or invalidate initial judgment as grossly disproportionate.
Three characteristics for comparative analysis:
1. Length of prison term
2. Sentencing triggering criminal conduct
3. Offender’s criminal history
• Other Three Strike Cases of small amount of theft:
Rummel v. Estelle (1980): 25 years WITH parole: not cruel and unusual
Solem v. Helm (1983): 25 years WITHOUT parole: cruel and unusual
Lockyer v. Andrade (2003): Three strikes for theft under $200 – 25 years to life
Not ‘grossly disproportionate’
People v. Carmony (CA 2005): striking down 3rd strike for “harmless technical violation” of parole
State v. Davis (AZ 2003): strikes down mandatory min 52yr sentence for 4 counts of sex w/ underage
State v. Berger (AZ 2006): upheld 200yr sentence for 20 images of child porn for 1st time offender
What Should be Punished?
• Reasons it may be inappropriate to punish:
1. Prohibited conduct should in principle be left free in liberal society - changing stigmas on sex
2. Use of punishment to govern a particular conduct produces more harm than good
- Adverse consequences of criminal law
Protected Conduct
Lawrence v. Texas (SCUSA 2003) Private Conduct
F: Police officers dispatched for weapons disturbance find the πs (2 men) having anal sex
H: Define liberty of all, NOT to mandate personal moral codes
Sexual conduct conducted in private is of no harm to others
Substantive Due Process prohibits infringement on fundamental liberty
Unless infringement serves a legitimate state interest
Dissent: majority’s belief that certain sexual behavior is “immoral and unacceptable” constitutes a
rational basis for regulation
Enforcement of Morals?
○ John Stuart Mill: Goal is self protection. Therefore only right to use power is to prevent harm to
others.
○ James Fitzjames Stephen: Criminal law protects the public and accepted standard of morals from
being grossly and openly violated.
○ Home Office of UK: laws governing acts between consenting adults in private goes beyond the sphere
of law.
○ Patrick Devlin: Bad to completely separate crime from sin. (ex. cannot consent to be murdered).
Society is based on a community of ideas and those ideas are its morals.
Punishment | 18
Euthanasia
Cruzan v. Missouri Dept. Health (SCUSA 1989)
F: π in vegetative state, π’s parents want to pull the plug, MI stopped
Rule: Informed Consent Doctrine - patient can refuse treatment
BUT common law says must be a competent person
Surrogates can make decision: Evidence of desire to withdraw treatment must be proved clear and
convincing
UPHELD – Requirement of evidence constitutional
Washington v. Glucksberg (SCUSA 1997) Legitimate State Interest
F: Suit against WA claiming ban on assisted suicide violate a fundamental right protected by the Due
Process Clause
H: Ban does not violate Due Process Clause if related to legitimate government interests
Some people who request suicide are treatable, protects medical profession, protects vulnerable
groups, and blurs the line between suicide and murder
UPHELD – Does NOT violate 14th Amendment
Prohibition produces more harm than good?
Netherlands: allows for euthanasia when “unbearable and hopeless” pain
No empirical increase in assisted suicides
Oregon: “Death with Dignity Act”, must meet certain criteria to take one’s own life
Gonzales v. Oregon (2006): SCUSA UPHELD on grounds it preserves State power to regulate the
medical profession
Concern over increases did not occur, instead lead to improvement in pain management.
Punishment | 19
Actus Reus: The Criminal Act
Culpability: The Voluntary Act Requirement
Voluntary Act Requirement and Mental State:
• Before punishment there must be a voluntary act (Actus Reus) that causes social harm AND a mental
state (Mens Rea) that justifies punishment
○ Do not punish for just bad thoughts (ex want someone to be hurt)
BUT if taking sufficient steps, could be criminally responsible: conspiracy
• Burden of proof: ALWAYS on PROSECUTION
• Treatment of offense differs depending on mental state at time of action
First degree murder -> manslaughter
• Strict liability: took necessary precautions but still liable – mental state does not matter
• Exceptions: Involuntary Acts
Involuntary acts are NEVER blameworthy
• BUT voluntary acts are NOT ALWAYS blameworthy
○ Mens rea defenses (‘effect one has in mind’): accidents, mistakes
○ Excuses: external threat or mental disorder leads them to believe they have no choice
- duress, insanity
Model Penal Code Approach
MPC §2.01(1): Requirement of Voluntary Act; Omission as Basis of Liability; Possession as an Act.
(1) A person is not guilty of an offense unless his liability is based on conduct that includes a voluntary
act or the omission to perform an act of which he is physically capable.
(2) The following are not voluntary acts within the meaning of this Section:
(a) a reflex or convulsion;
(b) a bodily movement during unconsciousness or sleep;
(c) conduct during hypnosis or resulting from hypnotic suggestion;
(d) a bodily movement that otherwise is not a product of the effort or determination of the actor,
either conscious or habitual.
MPC §1.13: Element and Material Elements of an Offense
(9) "element of an offense" means (i) such conduct or (ii) such attendant circumstances or (iii) such a
result of conduct as
(a) is included in the description of the forbidden conduct in the definition of the offense; or
(b) establishes the required kind of culpability; or
(c) negatives an excuse or justification for such conduct; or
(d) negatives a defense under the statute of limitations; or
(e) establishes jurisdiction or venue;
(10) "material element of an offense" means an element that does not relate exclusively to the statute of
limitations, jurisdiction, venue, or to any other matter similarly unconnected with (i) the harm or evil,
incident to conduct, sought to be prevented by the law defining the offense, or (ii) the existence of a
justification or excuse for such conduct;
Common Law Approach
Martin v. State, (AL 1944) Involuntary Act
F: π was drunk and brought to highway by police and then charged with public drunkenness
Statute Requires: (1) appear in public, and (2) act there in a boisterous or indecent manner; (3) while
intoxicated.
Voluntary appearance is presupposed
Actus Reus | 20
Accusation of drunkenness in a public place cannot be established by proof that the accused, while in an
intoxicated condition, was involuntarily and forcible carried to that place by the arresting office
Does not matter that he voluntarily got drunk – conduct not prohibited by law
People v. Newton, (CA 1970) Unconsciousness
F: Δ claims he was shot, went into a state of unconsciousness and then shot police officers
Rule: CA law allows unconsciousness as a complete defense if state was not self induced
Unconsciousness means lack of a mental state – not voluntary
People v. Decina, (NY 1956) Seizure
F: Δ struck and killed a number of children after allegedly suffering a seizure while driving
Rule: Seizure was foreseeable  culpably negligent in voluntarily taking risk of driving
Expands time element to defeat voluntary act requirement
[Being morally blameworthy for ultimate harm – sometimes most important factor]
Changing Patterns of Excuse
Robinson v. California, (SCUSA 1962) Addiction as Disease
F: π was convicted for being a narcotics addict
Rule: Addiction is an illness that may be contracted involuntarily – 8th Amendment violation to punish
Harlan: Can’t punish for desire to commit a crime act otherwise continuous liable for ‘status’ of addict
Powell v. Texas, (SCUSA 1968) Alcoholism as a Disease?
F: π violated drunk in public statute, tried to use alcoholism as a disease analogous to Robinson
Rule: Alcoholism is a voluntary disease (choose to take first drink) [different than Robinson?]
Not convicted on status alone – behavior which creates substantial health and safety hazards
Practical Concerns: difficult to consider alcoholism a disease
If a disease unreasonable strain on medical profession – civil commitment would commit a person
until he is cured, can be indeterminable length [constitutional]
[Kansas v. Crane (2002): SCUSA upheld commitment of sexually violent predators]
State ex rel. Harper v. Zegeer,(WV 1982) Alcoholism as Mental Disability
Most states have adopted Uniform Alcoholism and Intoxication Treatment Act that deals with
alcoholism as a disease – violates 8th Amendment to punish chronic alcoholics
BUT still a legitimate state interest to protect public places
 once determined to be a chronic alcoholic, he is to be accorded all of the procedural safeguards
that surround those with mental disabilities who are accused of a crime
United States v. Moore,(1973) Addiction as Defense to Possession?
F: Δ argues he should not be convicted of heroin possession since he is an addict – no free will
[volitional argument of insanity defense]
Rule: Robinson does not prevent punishment of acts addicts are compelled to do because of their
addiction only prevents punishment FOR BEING an addict.
Wright, dissent: deterrence presuppose rationality that addicts do not possess
Bazelon, dissent: addiction should be a defense to all crimes [similar to insanity]
United States v. Alexander, (1973) Rotten Social Background
F: Δ shot and killed a marine for calling him a black bastard. Δ was poor with no father growing up and
learned to fear and hate white people
Actus Reus | 21
Rotten Social Background: emotionally and economically deprived background leads to impaired
behavior controls
Bazelon, dissent: RSB could make society decide to do something to change those conditions. The
ultimate solution to the problem of violent crime in our society is some form of income redistribution
coupled with other social reform measures.
Notes on Environmental Deprivation:
○ Morse: environments affect choice but person still has power of choice. Poverty does not cause crime.
○ Wright: failing to take into account economic and social circumstances departs from the principle that
only the morally responsible can be punished for their acts.
○ Hart: Different views on what is excusable in relation to criminal behavior. What kind of factors limits
the human capacity to control behavior? Difficult to prove - depends a lot on one’s own statements
about himself.
○ Thomas: Movement towards blaming external causes rather than individual actions. If this becomes
accepted the range of crimes that are excusable could become limitless. Justice cannot function this
way, reduces citizens to status of children. Lack of rehabilitative effects if we blame society instead of
individuals.
Omissions
Model Penal Code Approach
MPC § 2.01(3) Omission as Basis of Liability
(3) Liability for the commission of an offense may not be based on an omission unaccompanied by
action unless:
(a) the omission is expressly made sufficient by the law defining the offense; or
(b) a duty to perform the omitted act is otherwise imposed by law.
Common Law Approach
Jones v. United States, (1962)
F: Δ convicted of inv. manslaughter for failure to provide for baby, Anthony Green. Δ had the means to
provide food and medical care but did not, Δ argues no legal duty to care for baby
R: People v. Beardsley: The duty neglected must be a legal duty and not a mere moral obligation. The
Duty imposed by law or contract and the omission to perform must be the immediate and direct cause
of death.
Four situations in which failure to act may constitute breach of legal duty:
1. Statute (possibly common law) imposes a duty to care for another
2. One has a certain relationship to another
3. Contractual duty to care for another
4. Voluntarily assumed the care of another and secluded the helpless person from getting other
Pope v. State, (MD 1979)
F: π watched and did nothing as a baby’s mother beat child in religious frenzy, baby died
Rule: Mother was always present, Pope may have had a moral obligation to intervene or help the child
BUT she not legally obligated to do unless she was responsible for the child.
• Statutory Duties to Act: Bystander indifference
RI law making it punishable to not report a rape that they witness, give legal effect to a moral principle
that we are our brother’s keeper.
Actus Reus | 22
Mens Rea: The Guilty Mind
Actus non facit reum, nisi mens sit rea: “an unwarrantable act without a vicious will is no crime at all”
Culpable Mental States
Model Penal Code Approach
MPC §2.02: General Requirements of Culpability.
(1) Minimum Requirements of Culpability. Except as provided in Section 2.05, a person is not guilty of
an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with
respect to each material element of the offense. {MPC view: clear analysis requires separate culpability
for each material element}
(2) Kinds of Culpability Defined.
(a) Purposely: A person acts purposely with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or a result thereof, it is his conscious object
to engage in conduct of that nature or to cause such a result; and
(ii) if the element involves the attendant circumstances, he is aware of the existence of such
circumstances or he believes or hopes that they exist.
(b) Knowingly: A person acts knowingly with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware
that his conduct is of that nature or that such circumstances exist; and
(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his
conduct will cause such a result.
{attempts to eliminate the CL ambiguity of intent, MPC views attitude as purposely, as opposed to
awareness of required conduct as knowledge, CL tries to use specific intent and general intent}
(c) Recklessly: A person acts recklessly with respect to a material element of an offense when he
consciously disregards a substantial and unjustifiable risk that the material element exists or will result
from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose
of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from
the standard of conduct that a law-abiding person would observe in the actor's situation.
{conscious risk creation - concept applies to conduct, attendant circumstances, or results. Questions of
how substantial and how unjustifiable the risk must be to find culpablity}
(d) Negligently: A person acts negligently with respect to a material element of an offense when he
should be aware of a substantial and unjustifiable risk that the material element exists or will result
from his conduct. The risk must be of such a nature and degree that the actor's failure to perceive it,
considering the nature and purpose of his conduct and the circumstances known to him, involves a gross
deviation from the standard of care that a reasonable person would observe in the actor's situation.
{Does not involve a state of awareness. Question of failure of perception deserving condemnation}
(3) Culpability Required Unless Otherwise Provided. When the culpability sufficient to establish a
material element of an offense is not prescribed by law, such element is established if a person acts
purposely, knowingly or recklessly with respect thereto.
{Similar to CL position. Requires law drafters to be explicit when purpose or knowledge is required}
(4) Prescribed Culpability Requirement Applies to All Material Elements. When the law defining an
offense prescribes the kind of culpability that is sufficient for the commission of an offense, without
distinguishing among the material elements thereof, such provision shall apply to all the material
elements of the offense, unless a contrary purpose plainly appears.
{particular culpability has been articulated by legislature with respect to any element, the assumption
is that it was meant to apply to all material elements when legislation is unclear}
MPC §1.13: Element and Material Elements of an Offense
(9) "element of an offense" means (i) such conduct or (ii) such attendant circumstances or (iii) such a
result of conduct as {these can also be material elements §1.13(10)}
Mens Rea | 23
(a) is included in the description of the forbidden conduct in the definition of the offense; or
(b) establishes the required kind of culpability; or
(c) negatives an excuse or justification for such conduct; or
(d) negatives a defense under the statute of limitations; or
(e) establishes jurisdiction or venue;
(10) "material element of an offense" means an element{from §1.13(9)} that does not relate exclusively
to the statute of limitations, jurisdiction, venue, or to any other matter similarly unconnected with (i) the
harm or evil, incident to conduct, sought to be prevented by the law defining the offense, or (ii) the
existence of a justification or excuse for such conduct;
Apply the Model Penal Code Approach:
Basic framework:
1. Determine “material elements” of an offense – MPC §1.13
2. Determine which type of mens rea, MPC §2.02(2), is required with respect to each element
1) governed by terms of offense itself
2) if terms are ambiguous then by MPC §§2.02(3), 2.02(4)
determine which types of men rea is required for each element
Distinguishing between levels of culpability:
○ Purpose vs motive: purpose legally relevant where motive is legally irrelevant (except when in relation
to a sentence)
○ Purpose vs wish: how likely the wish would come true
○ Recklessness vs. negligence:
Negligence: less culpable, inadvertent, the person should have been aware of danger but was not, his
fault is inattentiveness.
Recklessness: more culpable, the actor aware of the danger but acted anyway, fault is choosing to
create risk. Shade into each other
Awareness: there is risk, the risk is substantial, and the risk is unjustifiable.
Common Law Approach
Question of whether the Δ intended, expected, or should have expected his actions to produce the
particular outcome.
Basic Common Law Conceptions
• Malice: usually interpreted to require that Δ was aware his actions posed a substantial risk of causing
the prohibited harm
• Specific Intent: specified purpose or actual knowledge of a particular circumstance
• General Intent: intentional action without specific purpose
○ Specific intent vs. general intent:
ex. Burglary: burglary requires breaking and entering with specific intent to commit felony
Without specific intent: general intent crime of trespassing
• Attendant circumstance: background fact relating to element of a crime
ex. Bigamy: requires act of marriage AND attendant circumstance person is already married
Specific intent: would requires proof of Δ’s actual knowledge
General Intent: does not require proof of Δ’s actual knowledge
• Negligence: do not have to establish internal thought, just that Δ was negligent
• Proving awareness and intent:
Mens Rea | 24
○ Difficult to prove someone’s mental intent beyond a reasonable doubt, mental intent must be
proven indirectly through so called circumstantial evidence which lead to presumptions by juries
○ Therefore Supreme Court has imposed strict limits on the use of presumptions that the jury is
required to draw in the absence of contrary evidence. More flexible with permissive inferences
○ Permissive inferences: judge informs jury about a factual conclusion that it is permitted but not
required to draw, “more likely than not” to be true under the circumstances of the case
Regina v. Cunningham, (1957) Malice – Intent Do Harm
F: Δ stole gas meter and sold it, gas leaked into neighbor’s home
Law: Unlawfully and maliciously cause another person to be subjected to something poisonous that
endangers their life
Must INTEND to do particular harm or foresee it
Malice: intention to do the harm that was done, or recklessness by knowing that harm might occur and
still commits act
Regina v. Faulkner, (1877) Malice - Recklessness
F: Δ went to steal rum from hold of ship, lit a match which caused a fire and destroyed the ship
Convicted without intent since he was still engaged in unlawful act of stealing
Law: Malicious Damage Act – maliciously destroying the ship
Rule: Malice requires intent or recklessness, knew injury was probably result and still acted
State v. Hazelwood, (AK 1997) Criminal Negligence – Gross Recklessness
F: Exxon Valdez spill
Law: Misdemeanor: negligently cause petroleum to be discharged
Criminal Negligence: more than the negligence required to support a civil action “gross deviation from
standard of care of a reasonable person as to be deserving of punishment.”
Santillaness v. New Mexico, (NM 1993) Criminal Negligence
F: Δ cut nephew’s neck during an altercation, convicted of negligent (under civil standard) child abuse
Law: Negligently causing a child to be placed in a situation that may endanger the child’s life or health
Rule: when moral condemnation and social disgrace are attached to a conviction the crime should
reflect a mental state that would warrant that, in other words punish conduct that is morally culpable,
therefore this case required a standard of criminal negligence
United States v. Jewell,(1976) Knowingly – Deliberate Ignorance
F: Δ convicted of knowingly transporting marijuana from Mexico to the US, Δ did not know for certain
Rule: Deliberate ignorance and positive knowledge are equally culpable
Dilberate Ignorance
United States v. Alston-Graves,(1996): Willful Blindness “Ostrich” Instructions
Most federal Courts require evidence establishes
1. Δ was subjectively aware of high probability of illegal conduct
2. Δ purposefully contrived to avoid learning of the illegal conduct
US v. Giovannettti (199): Failure to show curiosity is not enough for ostrich instructions
Model Penal Code:
MPC §2.02(7): Requirement of Knowledge Satisfied by Knowledge of High Probability. When
knowledge of the existence of a particular fact is an element of an offense, such knowledge is
Mens Rea | 25
established if a person is aware of a high probability of its existence, unless he actually believes that it
does not exist.
Mistake of Fact
Model Penal Code Approach
MPC § 2.04. Ignorance or Mistake
(1) Ignorance or mistake as to a matter of fact or law is a defense if:
(a) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence
required to establish a material element of the offense; or
{ignorance or mistake has only evidential import, significant only when it is logically relevant}
(b) the law provides that the state of mind established by such ignorance or mistake constitutes a
defense.
(2) Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense
is not available if the defendant would be guilty of another offense had the situation been as he
supposed. In such case, however, the ignorance or mistake of the defendant shall reduce the grade and
degree of the offense of which he may be convicted to those of the offense of which he would be guilty
had the situation been as he supposed. {Δ should not go free, the facts as they occurred or as Δ believed
them to be a criminal offense was committed, still measure liability in terms of Δ’s culpability}
MPC § 213.6(1) Mistake as to Age. Whenever in this Article the criminality of conduct depends on a
child's being below the age of 10, it is no defense that the actor did not know the child's age, or
reasonably believed the child to be older than 10. When criminality depends on the child's being below
a critical age other than 10, it is a defense for the actor to prove by a preponderance of the evidence that
he reasonably believed the child to be above the critical age.
Common Law Approach
Regina v. Prince,(1875) Morally Wrong Principle – Strict Liability
F: Δ convicted of taking a girl before the age of 16 from her father, honestly thought she was 18 because
she lied
Rule: if it is wrong, it is wrong regardless of whether or not the person committing the wrong knew at
the time he was committing a wrongful act. “
Brett, dissent: Lesser crime principle - by knowingly committing a crime one runs the risk of a resulting
greater crime
People v. Olsen, (CA 1984) Lesser Crime Principle
F: Δ convicted of sex with a minor, thought she was 16 (not a minor)
Rule: Mistake of fact relating only to the gravity of an offense will not shield a deliberate offender from
full consequences of the wrong actually committed (People v. Lopez (1969): marijuana to a minor)
[Compared to: People v. Hernandez (1964): mistake of fact defense to statutory rape (under 18)]
B. v. Director of Public Prosecutions,(2000) Rejects Morally Wrong Principle (Prince)
F: 15 year old boy repeatedly asked a 13 year old girl for oral sex, girl refused and B was charged with
inciting a child under 14 to commit an act of gross indecency. B thought the girl was 14
Rule: If statute is silent then need mens rea
Lord Nicholls: Mental element of crime is important,  burden rests with prosecution
Lord Steyn: No special rule for aged based sexual offences, Δ should be judged on the facts as he
believed them to be.
Mens Rea | 26
Garnett v. State,(MD 1993) Reasonable Mistake
F: π is a retarded man, charged with having sex with 13 year old who he thought was 16
Rule: Statute does not allow for mistake of age defense  strict liability
Bell, dissent: Destroys concept of fault, the presumption of innocence and right to due process
[Contrast with State v. Guest (AK 1978): AK held strict liability unconstitutional – only state]
Current Landscape of Statutory Rape:
○ 20 states permit mistake of fact defense in statutory rape
○ Lawrence v. Texas (2003): decision holding it is UNCONSTITUTIONAL for a state to punish private
sexual activity by consenting adults whether married or not.
 intent to fornicate cannot be made illegal – hinders lesser crime argument
Strict Liability
Model Penal Code Approach
MPC § 2.05. When Culpability Requirements Are Inapplicable to Violations and to Offenses Defined
by Other Statutes; Effect of Absolute Liability in Reducing Grade of Offense to Violation.
(1) The requirements of culpability prescribed by Sections 2.01 and 2.02 do not apply to:
(a) offenses that constitute violations, unless the requirement involved is included in the definition of
the offense or the Court determines that its application is consistent with effective enforcement of the
law defining the offense; or
(b) offenses defined by statutes other than the Code, insofar as a legislative purpose to impose
absolute liability for such offenses or with respect to any material element thereof plainly appears.
(2) Notwithstanding any other provision of existing law and unless a subsequent statute otherwise
provides:
(a) when absolute liability is imposed with respect to any material element of an offense defined by
a statute other than the Code and a conviction is based upon such liability, the offense constitutes a
violation; and
(b) although absolute liability is imposed by law with respect to one or more of the material
elements of an offense defined by a statute other than the Code, the culpable commission of the offense
may be charged and proved, in which event negligence with respect to such elements constitutes
sufficient culpability and the classification of the offense and the sentence that may be imposed therefor
upon conviction are determined by Section 1.04 and Article 6 of the Code.
Common Law Approach
United States v. Balint, (SC 1922) Statute Violation
F: Δ indicted for selling derivatives of opium and coca leaves without the proper order form. Δ demurred
on grounds that they did not know they were selling prohibited drugs. Supreme court held that proof of
such knowledge was not required by the statute.
Reasoning: Strict liability is imposed when the emphasis of the statute is social betterment rather than
punishment – proof of knowledge not required
Here: Social Betterment - Better to protect innocent buyers than innocent sellers
United States v. Dotterweich,(SC 1943) Public Welfare Offenses
F: Δ is president of drug company that mislabeled drugs because the manufacturer mislabeled them
Rule: Act designed to protect people unable to protect themselves
Mens Rea | 27
Interest of the larger good puts the burden of preventing a hazard upon an innocent person but standing
in responsible relation to a public danger.
Morissette v. United States, (SCUSA 1952) Statute: No Mens Rea Must Have Intent
F: Δ a junk dealer took old bomb casings and sold them for a profit after flattening them. Convicted of
knowingly converting government property. His defense was that he believed that they were
abandoned by the Air Force. Trial court focused on intent to take property
Rule: No mention of intent shall not be construed to mean it is eliminated from those crimes
Must prove Δ had knowledge it was government property, HERE - no knowledge
Staples v. United States, (SCUSA 1994) Statute: No Mens Rea Must Have Intent
F: Δ was convicted of possession of an unregistered automatic firearm. Δ claimed he did not know
Rule: Statute is unclear, silence on mens rea does not necessarily mean that it is not required. Common
Law requires some element of mens rea, if Congress intends otherwise then it must say so in the
statute.
When the punishment is so harsh, as in this case, it cannot necessarily be argued that this is a public
welfare offense statute where mens rea can be dispensed with.
State v. Guminga, (MN 1986) Criminal Penalties for Strict Liability
F: Δ was owner of restaurant where a waiter served a minor
Rule: Criminal penalties based on vicarious liability under Minn. Stat. are a violation of substantive Due
Process that only civil penalties would be constitutional.
[Compare: State v. Beaudry (WI 1985): Upheld – 90 day jail through vicarious liability]
State v. Akers (NH 1979): struck down statute imposing criminal liability on parents, against due process
to hold liable simply based on status
[Compare: Parental Responsibility Laws: impose liability for contributing delinquency or failure to
supervise]
Mistake of Law
Historical:
○ Ignorantia Legis neminem excusat: “ignorance of the law excuses no one”
○ Holmes: admitting excuses of law would encourage ignorance where the lawmaker has determined to
make men know and obey
○ Prof. Stevenson: Presume knowledge of the law - creates limited uncertainty which leads to causation
and restraint
Model Penal Code Approach
MPC § 2.04 Ignorance or Mistake
(1) Ignorance or mistake as to a matter of fact or law is a defense if:
(a) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence
required to establish a material element of the offense; or
(b) the law provides that the state of mind established by such ignorance or mistake constitutes a
defense.
(2) Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense
is not available if the defendant would be guilty of another offense had the situation been as he
supposed. In such case, however, the ignorance or mistake of the defendant shall reduce the grade and
Mens Rea | 28
degree of the offense of which he may be convicted to those of the offense of which he would be guilty
had the situation been as he supposed.
(3) A belief that conduct does not legally constitute an offense is a defense to a prosecution for that
offense based upon such conduct when:
(a) the statute or other enactment defining the offense is not known to the actor AND has not been
published or otherwise reasonably made available prior to the conduct alleged; or
(b) he acts in reasonable reliance upon an official statement of the law, afterward determined to be
invalid or erroneous, contained in (i) a statute or other enactment; (ii) a judicial decision, opinion or
judgment; (iii) an administrative order or grant of permission; or (iv) an official interpretation of the
public officer or body charged by law with responsibility for the interpretation, administration or
enforcement of the law defining the offense.
(4) The defendant must prove a defense arising under Subsection (3) of this Section by a preponderance
of evidence.
MPC §2.02(9) Culpability as to Illegality of Conduct.
Neither knowledge nor recklessness or negligence as to whether conduct constitutes an offense or as to
the existence, meaning or application of the law determining the elements of an offense is an element of
such offense, unless the definition of the offense or the Code so provides.
Common Law Approach: Mistakes About/Of Law
People v. Marrero, (NY 1987)
F: Δ charged with possession of a gun in club. He contends he was exempt since he was a peace officer
and the statute exempts them. As a federal correction officer he did not qualify as a peace officer under
the statute
Rule: There can be a mistake about the law but does not relieve Δ of criminal liability
People v. Gardner (NY): misread statute thinking conduct was legal, held criminally liable – still intended
to do what was criminally liable
People v. Weiss (NY 1938): thought kidnapping was done with authority of law – negates intent of
conduct
HERE: Gardner applies – Similar to MPC§2.04(2) approach
Hancock, dissent: Ignorantia Legis neminem excusat: “ignorance of the law excuses no one” reasoning is
outdated
Regina v. Smith, (1974)
F: Δ tore down wall and floor he installed to retrieve wiring
Law: Criminal damage act: damages property belong to another
Rule: Need mens rea regarding “property belong to another”
Reconcile with Marrero? – mistake of law in non criminal source law (property)
[Compare: State v. Woods (VT 1935): Element is outside the criminal statute (marriage) and
therefore defense of mistake of law should be accepted under Smith]
Cheek v. United States,(SCUSA 1991) Voluntary Violation of Known Legal Duty
F: Δ charged with not filing taxes, he believed taxes were unconstitutional
Rule: When one refuses to comply with duties of law he must take the risk of being wrong
Different than Marrero: SPECIFIC intent crime
Knowingly Do Something Cases
• United States v. Int’l Minerals & Chem. Corp. (1971): Sufficient to prove that actions knowingly
committed were violations of ICC regulations, did not have to prove that regulations were known.
Mens Rea | 29
• Bryan v. United States (1998): enough to show that Δ knew conduct was unlawful not that he knew
about the law he was violating - Willfully
• United States v. Ansaldi (2004): Δ knew was distributing chemical, did not know it was controlled
substance “knowledge of, or intent to violate the law is simply not an element of this offense”
• United States v. Overholt (2002): violated Safe Water Drinking Act, jury was instructed to find that he
knowingly did something unlawful but not which law he was breaking – governed by Int’l Minerals
• Liparota v. United States (1985): prosecution must prove the Δ knew of the existence and meaning of
the regulation his actions violated – public policy concern of criminalizing broad range of innocent
conduct
Common Law Approach: Mistakes From Legal Authorities
• Due Process Limitations: “entrapment by estoppels” Supreme Court held it was a violation of Due
Process to convict a defendant for conduct that governmental representatives had earlier stated was
lawful. Raley v. Ohio (1959)
• Reasonableness Requirement: Δ acts in reasonable reliance upon an official statement of law that
afterwards is determined to be invalid or erroneous – Due Process right
Cases
• United States v. Albertini (1987): Committed same offense twice but thought he was allowed the 2nd
time since the decision in the first court was overturned – allowed as defense
• United States v. Rodgers (1984): conflicting case law made it reasonably foreseeable case would be
reviewed – not allowed as defense
• State v. Leavitt (WA 2001): Convicted of misdemeanor domestic violence offense. Not allowed to
possess a fire arm, judge told him he could not possess gun for the 1 year he was on probation. Later Δ
found with guns after the year. Court held it was a violation of Due Process since it was reasonably for
Leavitt to think he could possess guns after the 1 year.
• United States v. Wilson (1998): convicted of firearm possession, judge failed to require that Wilson no
longer posses firearms – convicted under federal statute
“a knowing violation of the statute only requires proof of knowledge by the Δ of the facts/acts that
constitute the offense”
Posner, dissent: Purpose of criminal laws is to bring about compliance with desired norms of
behavior. Keeping laws secret does not help this cause.
Lambert v. California, (SCUSA 1957) Strict Liability Statute
Law: Any convicted felon staying in California for more than 5 days needs to register, each day failing to
register is a separate offense
Rule: Violates Due Process: It is necessary that there needs to be prior knowledge or at least some
probability of knowledge for a conviction to stand
[Compared: State v. Bryant (NC 2005): failed to register as sex offender, judge did not tell him –
convicted, circumstances that Δ should know about sex offender registration laws]
Mens Rea | 30
Rape
Actus Reus
Model Penal Code Approach
MPC § 213.1. Rape and Related Offenses.
(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
{Physical force or threat of physical force, cannot be nonphysical threat}
(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.
{NO RESISTANCE requirement}
Rape is a felony of the second degree unless (i) in the course thereof the actor inflicts serious bodily
injury 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.
Common Law Approach
• Force requirement: used to be necessary, now changing
Majority: require some kind of force and nonconsent
Majority: required force is force to overcome resistance of the female
Minority: Any nonconsensual intercourse is treated by some jurisdictions as a criminal offense
Some states: Eliminate force requirement all together - nonconsensual = rape or sexual assault
Other states: Physical actions of sex constitute force
Critcism:
○ Implicit threats: State v. Alston even though Δ took her clothes off and pushed her legs apart the
court found evidence of nonconsent but it did not establish the element of force.
• Resistance requirement: Policy concern - prevent false accusations
○ Some states have as separate element
○ Others read resistance into other elements of force or nonconsent
One state: utmost resistant
○ Some: earnest resistant
○ Half: require reasonable resistance
○ ALL courts recognize resistance in some situations is not necessary (gun to the head)
○ Remaining: resistance not required but highly probative on the question of consented
Criticism:
○ Lack of physical resistance does not mean there was no resistance
Frozen with fear - looks like cooperative behavior
Rape | 31
Terror might be masked by cooperating
People vs. Warren (IL 1983): Complainant’s failure to resist when it was within her power to do so
conveys the impression of consent regardless of her mental state of fear, amounts to consent and
removes essential element of the crime. Does not mean she consented but she must communicate in
some objective manner her lack of consent.
• Reasonable apprehension of fear: victim’s fear must be reasonably grounded
Force and Resistance
State v. Rusk (MD 1981) Hazel Rule
F: Δ convicted of 2nd degree rape (threat of force w/o consent)
Rule: Hazel rule: force is an essential element of the crime, evidence must show victim resisted and was
overcome by force or was preventing from resisting by threats to her safety. Hazel v. State (MD 1960)
Vast majority of jurisdictions have required that victim’s fear be reasonably grounded – jury question
Nonphysical Threats
• Some states extend rape in which consent is obtained by duress, coercion, extortion, or using a
position of authority.
Coercion: hard to define, rich man has a right to use his wealth to shape personal relationships. Do
not want to oblige a man to support sexual partners.
Issue: Whether men use economic advantage to gain sexual advantages OR is it women who use
sexual superiority to gain economic advantages?
State v. Thompson, (MT 1990)
F: Δ (principal) threatened student with not graduating if she did not submit to sexual intercourse
Dismissed: Force defined as physical compulsion, the use or immediate threat of bodily harm, injury
Commonwealth v. Mlinarich, (PA 1985)
F: Victim was 14 year old goal in a Δ’s home, threatened with being sent back to detention center if she
did not submit to sexual advances.
Dismissed: Force means physical force or violence or threat of
Policy: Expand definition would allow for too many accusations of rape
Eliminating the Force Requirement
State in the Interest of M.T.S., (NJ 1992) Nonconsensual Sexual Penetration
F: MTS charged with 2nd degree rape, CG (victim) had consented to kissing and heavy petting was not
sleeping at time of penetration but had not consented to sexual act
Rule: Any act of sexual penetration engaged in by the Δ without the affirmative and freely given
permission of the victim to the specific act of penetration constitutes the offense of sexual assault.
Without such permission, any force used, even the force inherent in the sexual act itself, justifies a
forcible rape prosecution.
Permission: Do not need an affirmative yes (through actions) but conversely do not necessarily need an
affirmative no
M.C. v. Bulgaria (EU 2003)
F: Girl was raped by 2 men when they took her to a disco in a nearby town, she said she did not have the
strength to resist violently or scream
Rape | 32
Committee of Ministers (Council of Europe): penalize any sexual act committing against non-consenting
persons, even if they do not show signs of resistance.
Serious violations of sexual autonomy are to be penalized; it is violated whenever the person subjected
to the act has not freely agreed to it - Force is not an element per se
○ European countries obligation to set up norms that protect woman
○ In US Supreme Court says there is no responsibility/obligation to protect its citizens
Mens Rea
Mistake of Fact
• Most states permit a mistake defense but only when honest and reasonable.
Tyson v. State (ID 1993): not reasonable belief based on facts, no defense allowed
Reynolds v. State (AK 1983): shift analysis from victim’s resistance to Δ understanding of the
circumstances and whether Δ acted recklessly regarding the lack of consent.
Commonwealth v. Sherry, (MA 1982) Mistake of Fact Must Be Reasonable
F: Victim, was taken unwilling from a party, by 3 doctors, to a house and despite resistance was raped by
all 3, Δs argues mistakenly believed they had consent - jury to be instructed to find beyond a reasonable
doubt that the accused had actual knowledge of lack of consent
Rule: Mistake of fact without consideration of its reasonableness, is not a recognizable defense
Commonwealth v. Fischer, (PA 1998) Reasonable Mistake
F: There were 2 encounters, the first had different versions one with oral sex the other without but with
kissing and fondling (agreed upon). The second encounter there was forced oral sex on the victim.
The defense argued that based on the first encounter the Δ believed he had consent and due to his
inexperience it was a reasonable belief. He stopped once it was clear she did not wish to engage in such
action.
HERE: Δ’s lawyer failed to raise defense, not entitled to on appeal but maybe at trial if raised
[Differentiate from Commonwealth v. Williams (PA 1982): bars mistake of fact defense because they
were strangers]
Problems of Proof
Corroboration and Jury Instructions
Model Penal Code Approach
MPC § 213.6. (5) Testimony of Complainants. No person shall be convicted of any felony under this
Article upon the uncorroborated testimony of the alleged victim. Corroboration may be circumstantial.
In any prosecution before a jury for an offense under this Article, the jury shall be instructed to evaluate
the testimony of a victim or complaining witness with special care in view of the emotional involvement
of the witness and the difficulty of determining the truth with respect to alleged sexual activities carried
out in private. {Requires BOTH corroboration and a special jury instruction warning about victim’s
testimony to evaluate with “special care”}
Common Law Approach
Historic:
United States v. Wiley (1974) Corroboration Requirement
Rape | 33
H: Retain a corroboration rule which provides that independent corroborative evidence will be regarded
as sufficient when it would permit the jury to conclude beyond a reasonable doubt that the victim’s
account of the crime was not a fabrication
Justifications for requirement:
False rape charges: more prevalent than other crimes
Rape charge unusually difficult to defend against
Racism of jury
Discrimination against women
Modern: No state requires corroboration in all forcible rape cases
United States v. Sheppard (1977): rejects Wiley
Policy: Protections in system to prevent Δs against false accusations
Cross-Examination and Shield Laws
Federal Rules of Evidence:
Rule 403:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion or the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence
Rule 404(b):
Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may, however, be admissible
for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident
Rule 412. Sex Offense Cases;
Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition
(a) Evidence generally inadmissible. The following evidence is not admissible in any civil or criminal
proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):
(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.
(2) Evidence offered to prove any alleged victim's sexual predisposition.
(b) Exceptions.
(1) In a criminal case, the following evidence is admissible, if otherwise admissible under these
rules:
(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a
person other than the accused was the source of semen, injury or other physical evidence;
(B) evidence of specific instances of sexual behavior by the alleged victim with respect to the
person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution;
and
(C) evidence the exclusion of which would violate the constitutional rights of the defendant.
(2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any
alleged victim is admissible if it is otherwise admissible under these rules and its probative value
substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence
of an alleged victim's reputation is admissible only if it has been placed in controversy by the alleged
victim.
(c) Procedure to determine admissibility.
(1) A party intending to offer evidence under subdivision (b) must--
Rape | 34
(A) file a written motion at least 14 days before trial specifically describing the evidence and
stating the purpose for which it is offered unless the court, for good cause requires a different time for
filing or permits filing during trial; and
(B) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged
victim's guardian or representative.
(2) Before admitting evidence under this rule the court must conduct a hearing in camera and afford
the victim and parties a right to attend and be heard. The motion, related papers, and the record of the
hearing must be sealed and remain under seal unless the court orders otherwise.
Common Law Approach
• Shield laws PREVENTS admission of evidence of prior sexual behavior due to prejudicial concerns
• Commonwealth v. Spiewak (PA 1992): restrictive rape shield law held unconstitutional
• State v Colbath (NH 1988): Public displays are not under the reach of rape shield laws.
State v. DeLawder (MD 1975) Prior Sexual Behavior for Proof of Pregnancy
Rule: Past sexual behavior cannot be used as an excuse or justification
Analogous to Davis v. Alaska (1974): witness stole good and implicated π to protect himself, prior
juvenile record allowed to help jury determine reliability of witness
HERE: Victim pregnant instead of revealing promiscuity to mom may have lied about Δ raping her.
Evidence to show she was pregnant at time of rape would require prior sexual history.
Commonwealth v. Harris (VA 1993) Impeachment Purpose
Δ was charged with rape because the charger was a prostitute and he failed to pay her, he wanted to
show a past conviction of prostitution. Shield law vs. another law allowing past evidence for credibility
purposes. Evidence allowed for impeachment purposes
Neeley v. Commonwealth (VA 1993) Alternative Explanation for Physical Evidence
Pubic hair was African American, wanted to show that her boyfriend was African American and she had
sex with him shortly before the alleged rape. The shield law permit past sexual history only when it is an
alternative explanation for the physical evidence but it is limited to semen, pregnancy, disease or
physical injury.
Government of the Virgin Islands v. Scuito (1980) Psychiatric Evaluation
F: Δ wanted psychiatric examination of π. Δ took π home from restaurant he was a patron at and
detoured and had sex along a beach road. Differing account of events, space out vs. threatened with a
knife. Was she a druggy susceptible to fantasies?
Rule 412: prior sexual conduct and does not necessarily apply to Scuito asking for a psychiatric
evaluation.
HERE: Evidence could have been introduced on direct testimony
Rape | 35
Homicide
Intentional Killings: Murder
Model Penal Code Approach
MPC § 210.2. Murder.
(1) Except as provided in Section 210.3(1)(b), criminal homicide constitutes murder when:
(a) it is committed purposely or knowingly; or
(b) 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 or is an accomplice
in the commission of, or an attempt to commit, or flight after committing or attempting to commit
robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or
felonious escape. {MPC version of felony-murder but MUST be one of the listed crimes}
{NO PREMEDITATION AND DELIBERATION}
(2) Murder is a felony of the first degree {but a person convicted of murder may be sentenced to
death, as provided in Section 210.6}
Common Law Approach
Two Meanings of Premeditation
• No Time Too Short
Commonwealth v. Carroll (PA 1963) No Time Too Short
F: Δ’s wife suffered fracture skull, made her crazy, Δ left gun by bed so wife would be safe, Δ told wife he
would frequently not be home to teach, argument ensued, Δ took gun and shot wife in the back of the
head while she slept, convicted for 1st degree murder
R: Commonwealth v. Drum: “no time is too short for a wicked man to frame in his mind the scheme for
murder.
Commonwealth v. Earnest: time space does not matter if killing was willful, deliberate, and
premeditated
Conviction UPHELD
• Young v. State (AL 1982): “premeditation may be formed while the killer is pressing the rigger that
fired the fatal shot.”
• Commonwealth v. O’Searo (PA 1976): premeditation and deliberation is met whenever there is a
conscious purpose to bring about death
• Schrader Instructions: intent to kill need only exist for an instant; what is meant by willful, deliberate,
and premeditated is that the killing be intentional
• Time For Reflection
• State v. Thomspon (AZ 2003): statute that actual reflection is not required for P&D is unconstitutional,
arbitrary and capriciousness violate due process
State v. Guthrie (WV 1995) Time For Reflection
F: The victim was kidding around with the Δ and flipped a dish towel at his face (hitting him on the
nose). The Δ took out a knife and stabbed him in the neck and then the arm. Δ suffered from psychiatric
problems.
H: Schrader Instructions REJECTED, eliminates distinction between two degrees of murder
 MUST be some time for reflection on intention to kill: Bullock v. US (1941)
• Proof of Premeditation (Guthrie):
Homicide | 36
Jury considers circumstances in which the killing occurred for 1st degree:
○ Relationship and condition of relationship at time of killing
○ Plan or preparation to time, place and weapon
○ Presence of reason or motive to kill
○ No one factor is controlling
○ Three categories of evidence: People v. Anderson (CA 1968)
1. Planning activity
- Behavior prior to killing which indicate design to take life
2. Facts about relationship or behavior with victim that might indicate motive to kill
3. Evidence regarding the nature or manner of killing which indicate a deliberate intention to kill
according to a preconceived design
Criticism of required proof: Anderson case - gruesome murder but unable to prove P&D – no first degree
Homicide | 37
Provocation: Manslaughter
Model Penal Code Approach
MPC § 210.3. Manslaughter.
(1) Criminal homicide constitutes manslaughter when:
(a) it is committed recklessly; or
(b) a homicide which would otherwise be murder is committed under the influence of extreme
mental or emotional disturbance for which there is reasonable explanation or 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.
(2) Manslaughter is a felony of the second degree.
People v. Casassa (NY 1980)
F: Δ killed victim after she stopped going out with him, Δ’s psychiatrist claimed Δ was obsessed and
killed under extreme emotional disturbance
Law: Penal Code rejects Common Law approach
NY Penal Code: Burden on Δ
Δ acted under influence of extreme emotional disturbance
Reasonable explanation or excuse for disturbance in that situation – question for trier of fact
• State v. Elliot (CT 1979): for years feared brother, one day killed him – MPC counts as emotional
disturbance which may not require a provoking event – jury question
Common Law Approach
• Malice for murder is negated when there is provocation
Rationale:
○ Partial excuse: naturally causes a reasonable person in the passion of the moment to lose self
control and act on impulse and without reflection.
○ Partial justification: an individual is to some extent morally justified in making a punitive return
against someone who intentionally causes him serious offence, and that this serves to differentiate
someone who is provoked into losing his self control and to kill. Both parties morally wrong.
• Form of Provocation
○ Majority: Provocation must be physical
- usually limited to: Extreme assault or battery upon Δ, mutual combat, Δ’s illegal arrest, injury or
serious abuse of close relative of Δ’s, or sudden discovery of a spouse’s adultery
○ Minority: reasonable provocation that would inflame a reasonable man to lose self control
• Sexual Infidelity as provocation:
○ Some states do not allow provocation for sexual infidelity
○ Others allow but interpret narrowly:
Dennis v. State (MD 1995): Must be sexual intercourse not other sexual intimacy/contact
State v. Turner (AL 1997): Must be married
○ Some places homosexual advances can be counted as provocative acts
• Time Frame: Adequacy of ‘cooling time’
• “As a Matter of Law”: Majority - Too long a lapse between provocation and act of killing will render
provocation inadequate as a matter of law
United States v. Bordeaux (1992): found out about rape of mother earlier in the day, and returned
to kill victim after beating him up – need instant incitement
Manslaughter | 38
State v. Gounagias (WA 1915): After 2 weeks of ridicule for sodomy Δ killed victim – no cumulative
build up to heat of passion
Commonwealth v. LeClair (MA 1999): for weeks suspected wife of cheating then confirmed then
killed – weeks of suspicions provided adequate cooling time
○ Sometimes can argue event immediately preceding homicide rekindled earlier provocation
• Question for the Jury: Minority
People v. Berry (CA 1976): waited 20 hours after provocation to kill victim, jury can find time served
to aggravate rather than cool
• Victims Other than Provoker
• Mistaken for Provoker:
Some states: Can accidentally mistake someone else for provoker, kill them and still be tried for
manslaughter - State v. Mauricio (NJ 1990)
• Innocent Bystander: will not allow use of provocation defense
Rex v. Scriva: father killed bystander trying to restrain him from killing
• Δs who elicit provocation:
Regina v. Johnson: taunted people, people attacked Δ, Δ stabbed people
H: Do NOT allow use of provocation defense
Girouard v. State (MD 1991) Majority Approach – Provocation Must Be Physical
F: Got into argument with his wife who threatened him with charges of abuse, stabbed wife to death
Convicted of 2nd degree murder, tried to mitigate to manslaughter
Rule: Verbal Provocation inadequate - Provocation to be adequate: must be calculated to inflame the
passion of a reasonable man and tend to cause him to act for the moment from passion rather than
reason.
Only a few particular circumstances (mostly physical) can serve as legally adequate provocation:
• Extreme assault or battery upon Δ, mutual combat, Δ’s illegal arrest, injury or serious abuse of close
relative of Δ’s, or sudden discovery of a spouse’s adultery
Maher v. People (MI 1862) Minority Approach – Reasonable Provocation
F: Maher told wife was cheating on him, saw Hunt enter woods with his wife and leave later, confronted
Hunt and shot him in the head. Convicted of assault with intent to kill
R: Average man of regular disposition: Influence of passion or in heat of blood, produced by reasonable
provocation and before a reasonable time has elapsed for reason to assume control, by which the control
of reason was disturbed rather than wickedness of heart or cruel disposition.
Manslaughter | 39
Unintentional Killings
Distinguishing Civil and Criminal Liability
Contributory negligence:
Civil cases: deceased’s contributory negligence is a complete defense (except where comparative has
been adopted)
Criminal cases: deceased’s contributory negligence or other misconduct has never afforded a
defense
Rationale for treating Unintentional Killings Differently:
Awareness: lower punishment where the actor was unaware of substantial unjustifiable risk is that she
is less culpable than the person who does have this awareness.
Model Penal Code Approach
MPC § 210.3. Manslaughter.
(1) Criminal homicide constitutes manslaughter when:
(a) it is committed recklessly; or
MPC § 2.02(c) Recklessly.
A person acts recklessly with respect to a material element of an offense when he consciously
disregards a substantial and unjustifiable risk that the material element exists or will result from his
conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the
actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the
standard of conduct that a law-abiding person would observe in the actor's situation.
MPC § 210.4. Negligent Homicide.
(1) Criminal homicide constitutes negligent homicide when it is committed negligently.
(2) Negligent homicide is a felony of the third degree.
{Δ should have been aware of risk but failed to perceive it, gross deviation from standard of care}
MPC § 2.02(d) Negligently.
A person acts negligently with respect to a material element of an offense when he should be aware of a
substantial and unjustifiable risk that the material element exists or will result from his conduct. The
risk must be of such a nature and degree that the actor's failure to perceive it, considering the nature
and purpose of his conduct and the circumstances known to him, involves a gross deviation from the
standard of care that a reasonable person would observe in the actor's situation.
People v. Hall (CO 2000)
F: Δ was skiing and collided with Cobb, convicted using “more likely than not” for reckless standard
R: Reckless: creation of a substantial unjustifiable risk
I: Whether actions were gross deviation from standard care of that a reasonable law abiding person
would have observed in the circumstances - Consciously disregard that risk
Convicted of negligent homicide
Common Law Approach: Involuntary Manslaughter
Commonwealth v. Welansky (MA 1944) Wanton or Reckless
F: An owner of nightclub with exits poorly marked/locked/hidden, employee lit match, fire spread quick
Law: Reckless Manslaughter: requires that a person recklessly caused the death of another person
Unintentional Killings | 40
○ Wanton or Reckless: intentional conduct by either commission or omission where there is a duty to
act, where conduct involves a high degree of likelihood that substantial harm will result to another –
indifferent or disregard of probably consequences to others
○ Distinguish from negligence: reckless requires grave danger to others must be apparent to an ordinary
man under same circumstances and Δ chose to run risk rather than alter conduct to avoid the act or
omission which caused the harm.
• Rex v. Bateman (1925): To establish criminal liability the facts must be such that in the opinion of the
jury the negligence of the accused went beyond a mere matter of compensation between subjects and
showed such a disregard for the life and safety of others as to amount to a crime against the state and
conduct deserving punishment.
• State v. Barnett (1951): The conduct of the accused must be such a departure from what would be the
conduct of an ordinarily prudent or careful man under the same circumstances as to be incompatible
with proper regard for human life, or conduct amounting to an indifference to consequences.
State v. Williams (WA 1971) Ordinary Negligence
Δ charged with manslaughter for negligently failing to supply child with necessary medical attention
Law: WA statutory manslaughter requires only ordinary negligence – caution exercisable by a man of
reasonable prudence under the same or similar conditions
Distinguishing Murder and Manslaughter
Model Penal Code Approach
MPC § 2.02(c) Recklessly.
A person acts recklessly with respect to a material element of an offense when he consciously
disregards a substantial and unjustifiable risk that the material element exists or will result from his
conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the
actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the
standard of conduct that a law-abiding person would observe in the actor's situation.
§ 210.3. Manslaughter.
(1) Criminal homicide constitutes manslaughter when:
(a) it is committed recklessly
§ 210.2. Murder.
(1) Except as provided in Section 210.3(1)(b), criminal homicide constitutes murder when:
(b) it is committed recklessly AND under circumstances manifesting extreme indifference to the
value of human life… {MPC version of “Depraved Heart Murder”}
Common Law Approach
Commonwealth v. Malone (PA 1946) Unintentional Murder
F: Δ thought he had loaded gun so it wouldn’t fire if he pulled the trigger 3 times, played Russian poker
and killed Long, convicted of 2nd degree murder
R: Act of gross recklessness for which he must reasonably anticipate that death to another is a likely
result (awareness) proves malice, AFFIRMED
Unintentional Killings | 41
• People v. Dellinger (CA 1989): malice to be implied when the killing results from an intentional act, the
natural consequences of which act was deliberately performed by a person who knows that his conduct
endangers the life of another and who acts with conscious disregard for life
• People v. Roe (NY 1989): majority convicted boy for murder during Russian roulette – distinction of
manslaughter from murder is only the known degree of risk to life that the Δ’s action created
• Intent-to-inflict-grievous-harm formula: intent to do great bodily harm to victim establishes the
malice for murder
• Murder by Omissions:
People v. Burden (CA 1977): Δ aware that baby was starving to death, convicted of 2nd degree murder
“the omission of duty is in law the equivalent of an act and when death results, the standard for
determination of the degree of homicide is identical.”
• Drunk Driving: Majority - hold that egregiously dangerous driving can support a conviction of murder.
Usually the theory is that the Δ had an actual awareness of a great risk of fatal harm
United States v. Fleming (1984) Drunk Driving
F: Δ was drunk driving really fast and on wrong side of road, head on collision killing victim
Convicted of 2nd degree murder, Δ argues no malice aforethought required for murder
Conduct that is reckless and wanton and a gross deviation from a reasonable standard of care of such
nature that jury is warranted in inferring that Δ was aware of a serious risk of death or serious bodily
harm – inferred malice
• State v. Dufield (NH 1988): claimed intoxication prevented him from forming “extreme indifference”
required for murder.
Subjective: inferred from recklessness then it is a subjective state of mind – mental state
Objective: OR degree of divergence from norm of acceptable behavior by which reckless is defined
Court ruled for objective  intoxication is immaterial to finding of extreme indifference
Unintentional Killings | 42
Felony Murder
Model Penal Code Approach
§ 210.2.(1)(b) Murder.
(1) Except as provided in Section 210.3(1)(b), criminal homicide constitutes murder when:
(b) it is committed recklessly AND under circumstances manifesting extreme indifference to the
value of human life. Such recklessness and indifference are PRESUMED if the actor is engaged or is
an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting
to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary,
kidnapping or felonious escape.
Common Law Approach
Basic Doctrine
• Felony Murder Rule: no intent or malice (supplied by underlying felony) but killing during a felony is
murder (implied malice)
Rationale: Mens rea of lesser offense may substitute for the mens rea of a greater offense
Purpose: Deterrence
• Historic: any killing committed during a felony - Serne, Stamp
Modern Approach
• “Inherently Dangerous Felony” Limitation: majority limitation on felony murder
○ Majority View: Felony in the manner it was committed - Stewart, Hines
○ Minority View: Felony in the abstract - Phillips
• Basic requirement: of felony murder rule that the act of killing must be done in the furtherance of the
underling felony.
○ Alternative Approach: Natural and probable consequence OR foreseeable result of felony
King v. Commonwealth (VA 1999): crashed plane while transporting pot, not felony murder, crash
NOT a foreseeable result of felony [unless purposefully flying low to avoid detection]
Amaro: in furtherance of common design
• Causation requirement: Δ’s conduct caused victim’s death
○ Not necessarily required
○ “Frolic of their own”: co-felon murders on their own, not part of initial plan – other co-felons not
liable for felony murder
Regina v. Serne (1887) Historic Rule
F: Δ set fire to house killing his son, insured house recently - arson
CL: Killing another person by an act done with intent to commit a felony
OR an act done with knowledge that the act will probably cause the death of some person
Judge: “any act known to be dangerous to life and likely in itself to cause death, done for the purpose of
committing a felony which causes death, should be murder.” – narrower interpretation
People v. Stamp (CA 1969) In the Course of
F: Δ robbed business, made owner lie on the floor, died of heart attack shortly after
Felony murder doctrine: not limited to deaths that are foreseeable, strictly liable for all killings in the
course of a felony. As long as homicide is direct causal result of the felony whether or not the death was
a natural or probably consequence of the felony - robber takes his victim as he finds him
Felony Murder | 43
The “Inherently Dangerous Felony” Limitation
People v. Stewart (RI 1995) Majority: Felony in Manner of Commission
F: Mother went on crack binge during which her child died from dehydration
Convicted of felony murder (felony – permitting a child to be a habitual sufferer)
Δ argues habitual sufferer is not inherently dangerous
Unlike Phillips: Better approach for trier of fact to consider the facts and circumstances to determine if
felony was inherently dangerous in the manner and circumstances in which it was committed
Hines v. State (GA 2003)
F: Hines mistook his buddy Wood for a turkey and shot him dead.
Felony – possession of a firearm by a convicted felon
Ford v. State: felonious possession of firearm BUT did not know victim was there
HERE: knew other hunters in the area  inherently dangerous
Dissent: not inherently dangerous, no high probability of death, just negligence
People v. Phillips (CA 1966) Minority: Felony in the Abstract
F: 8 year old boy was diagnosed with cancer in his eye, chiropractor told them to forego removing his
eye and instead do treatment to build up resistance, boy died, Δ convicted of felony-murder (felony of
grand theft)
Rule: Felony murder rule applies to conduct that may be considered dangerous to life NOT any segment
of conduct
Elements of the felony in abstract NOT as it is committed that determine dangerousness
Grand theft is not inherently dangerous to life, does not matter that the result here is death
The Merger Doctrine
• Merger Rule: intended to avoid elevating every felonious assault that ends in death to second degree
murder
People v. Burton (CA 1971) Independent Felonious Purpose
F: Burton was found guilty of murder while committing a robbery
Merger: Death resulting from assault with a deadly weapon where the purpose of the conduct was the
very assault which resulted in death – felony is included in fact
Felony-murder: conduct for independent felonious purpose such as robbery or rape which happened to
be accomplished by a deadly weapon – independent purpose to rob or to rape
People v. Mattison (CA 1971) Independent Purpose Test
Δ supplied meth to fellow inmate who died. Convicted of 2nd degree felony murder
H: Independent purpose to sell drugs – no merger
Deter selling of drugs knowing if someone dies you can be convicted of murder
People v. Hansen (CA 1995) Criticism of Merger Doctrine
F: drive by shooting – convicted of 2nd degree felony murder even though no independent purpose
Independent purpose test fundamentally misguided: “a felon who acts with a purpose other than
specifically to inflict injury upon someone is subject to greater criminal liability for an act resulting in
death than a person who actually intends to injure the person of the victim.”
• People v. Robertson (CA 1994)
Felony Murder | 44
F: shot to scare someone trying to steal his hub caps, ending up killing him. Was convicted on felony
murder because he denied having intent to kill and was found to be grossly negligent in firing his gun
Dissent: if Δ admitted intent he would be convicted of lesser offense of accidental killing or involuntary
manslaughter. Merger doctrine makes proof of malice unnecessary and impose murder liability for what
might otherwise be manslaughter.
Killings Not “In Furtherance” of the Felony
Killings After Felony Has Ended
• People v. Gillis (MI 2006): Broke off attempted robbery drove away in his car and then 10-15 minutes
later was spotted by a cop and sped away and crashed and killed 2 people. Convicted of felony murder.
Robbery still includes the escape
• Stave v. Amaro (FL 1983): arrested for drug selling but while still searching the house officer was shot
and killed Amaro found guilty of felony murder even though he was in cuffs. Foreseeable and in
furtherance of the common design
Killings by Felons but Not in Furtherance
• United States v. Heinlein (1973): Heinlein slapped by rape victim, enraged he killed her. Other 2 rapers
were not convicted of felony murder because Heinlein’s actions were unanticipated. [But if she died of a
heart attack while being raped all 3 would have been guilty]
• People v. Cabaltero (CA 1939): Lookout for robbery got spooked and shot at a car, another robber got
mad and shot the lookout, all robbers were convicted of first degree murder. Still in perpetration of
robbery
• “Frolic of their own”: co-felon murders on their own, not part of initial plan – other co-felons not liable
for felony murder
Killings by Non-Felons
• Deaths that result from actions of police officers and private citizens trying to thwart the attempted
crime
State v. Canola (NJ 1977) Agency Theory – Must be by a Felon
F: Tried to rob a jewelry store, owner and employee fought with one robber, the owner was shot and
killed but he also shot and killed one of the robbers.
Traditional view: doctrine of felony murder does not extend to a killing, a result of the commission of the
felony, if attributable to the act one other than the Δ or those associated with him
[Contrast] Keaton v. State (TX 1900): in attempting to escape used an innocent as a body shield who
was then killed by police officer. Convicted of murder. There is implied malice by taking hostage
(indifference to human life)
Killing of Felon
• Justifiable Homicide: felon justifiably killed by a police officer then cannot apply felony murder rule to
surviving felons
• State v. Williams (FL 1997) designed to protect the innocent, if felons do kill each other then can be
charged with murder
• United States v. Martinez (1994): cofelons convicted of felony murder when pipe bombs killed cofelon
State Approaches
• NY: “in the course of and in furtherance , he or another participant causes the death of a person other
than one of the participants” – Proximate cause issue
Felony Murder | 45
○ People v. Hernandez (NY 1993): Proximate Cause - held felony murder conviction for policeman
fatally shot by fellow officer in gun battle with robbers
• WI: felony murder liability upon any person who “causes the death of another human being while
committing or attempting to commit [felonies]”
○ State v. Oimen (WI 1994): statute rejects any limitation based on the indentity of the person
shooting or killed – robbery victim shot a robber, surviving robbery convicted of felony murder
NJ: “in the course and furtherance any person causes the death of any person other than participants”
Affords affirmative defense for felons who can show that they had no reason to anticipate use of
deadly force
• Implied malice approach: killing by a nonfelon occurs during a highly dangerous felony, felons held for
“implied malice” or “depraved heart murder” without resorting to felony-murder doctrine, felonious
actions taken with a conscious disregard for life – supported by MPC. People v. Gilbert (CA 1966)
Felony Murder | 46
MPC v. PA Homicide Statutes
Model Penal Code
§ 210.0. Definitions.
In Articles 210-213, unless a different meaning
plainly is required:
(1) "human being" means a person who has
been born and is alive;
(2) "bodily injury" means physical pain, illness
or any impairment of physical condition;
(3) "serious bodily injury" means bodily injury
which creates a substantial risk of death or
which causes serious, permanent
disfigurement, or protracted loss or impairment
of the function of any bodily member or organ;
(4) "deadly weapon" means any firearm or
other weapon, device, instrument, material or
substance, whether animate or inanimate,
which in the manner it is used or is intended to
be used is known to be capable of producing
death or serious bodily injury.
PA Consolidated Statute
§ 210.1. Criminal Homicide.
(1) A person is guilty of criminal homicide if
he purposely, knowingly, recklessly or
negligently causes the death of another human
being.
(2) Criminal homicide is murder, manslaughter
or negligent homicide.
§ 210.2. Murder.
(1) Except as provided in Section 210.3(1)(b),
criminal homicide constitutes murder when:
(a) it is committed purposely or knowingly;
or
(b) it is committed recklessly under
circumstances manifesting extreme
indifference to the value of human life. Such
reck-lessness and indifference are presumed if
the actor is engaged or is an accomplice in the
commission of, or an attempt to commit, or
flight after committing or attempting to
commit robbery, rape or deviate sexual
intercourse by force or threat of force, arson,
burglary, kidnapping or felonious escape.
Murder Statutes | 47
(2) Murder is a felony of the first degree [but a
person convicted of murder may be sentenced
to death, as provided in Section 210.6].
§ 210.3. Manslaughter.
(1) Criminal homicide constitutes
manslaughter when:
(a) it is committed recklessly; or
(b) a homicide which would otherwise be
murder is committed under the influence of
extreme mental or emotional disturbance for
which there is reasonable explanation or
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.
(2) Manslaughter is a felony of the second
degree.
Murder Statutes | 48
Death Penalty
The Current Context
• Length of time and cost: inmates spend on average 10 years
○ Cost in most cases are more than life imprisonment
• Majority support capital punishment
○ But not when given the alternative with life imprisonment without parole 50/50
• States starting to repeal death penalty due to fear of convicted innocents
Policy Considerations
• Deterrence
○ More effective than life imprisonment
○ Theoretical debate: severity and salience will deter?
○ Brutalization effect: actual increase murders
○ Empirical analysis: no consensus view
○ Result in a net saving life?
• Retribution
○ No benefit to society but restore equality among persons
○ Necessary to respect the rational human agency of the offender
○ Punishment fully deserved? Take into account societal factors in determining culpability?
• Error
○ Possibility of error undermines retributive argument
○ Led to research into how errors occur in the law
○ Acceptable level of risk?
• Bias - McKleskey v. Kemp
○ Blacks disproportionally represented on death row
○ Bias against blacks and for whites in sentencing
Constitutional Limitations
• Procedural Due Process (14th):
○ Discretion left to judge or jury, no criteria
○ Due process requires an explicit criteria of decision to jury
○ McGautha v. California (1971): committing the jury discretion to pronounce life or death is not
unconstitutional
• Cruel and Unusual punishment (8th):
○ Furman v. Georgia (1972): capital punishment violated 8th amendment – arbitrary application
Opinion set up two alternatives to keep death penalty:
1. enact legislation to make capital punishment mandatory in certain cases
○ Later rejected by SCUSA (1976) in Woodson and Roberts
○ Later rejected mandatory sentences with narrow mitigating circumstances in Lockett
2. establish guidelines to determine who would be subjected to capital punishment
○ Later SCUSA held need to allow for possibility of individual mitigation – Gregg v. Georgia
○ Felony Murder convictions not cruel and unusual - Tison
Classes that can NOT be punished by Death:
• Mentally Retarded - Aktins
• Juveniles – Roper v. Simmons
Death Penalty | 49
Gregg v. Georgia (SCUSA 1976) Cruel and Unusual?
F: convicted of two counts of armed robbery and two counts of murder, sentenced to death under GA
statute
R: Trop v. Dulles - Excessiveness standard:
1. punishment must not involve unnecessary and wanton infliction of pain
2. punishment not grossly out of proportion to the severity of the crime
GA statute satisfies Furman since it limits death penalty to cases where jury finds a statutory aggravating
circumstance, allows jury to consider mitigating factors.
Atkins v. Virginia (SCUSA 2002) Mentally Retarded
F: Atkins mentally retarded, convicted of abduction, armed robbery and capital murder, sentenced to
death
R: excessive to punish mentally retarded by death, against 8th Amendment
Roper v. Simmons (2005) Juveniles
Death penalty disproportionate for juveniles
Tison v. Arizona (1987) Felony Murder
Can allow death for felony murder, participation in felony combined with reckless indifference to human
life, sufficient culpability for death
McCleskey v. Kemp (SCUSA 1987) Racism?
F: McCleskey robbed a furniture store and shot an officer who died, sentenced to death
Baldus study: statistical disparity of death sentence based on race of murder victim and to lesser extent
race of Δ
14th Amendment: equal protection clause – Δ needs to prove purposeful discrimination
8th Amendment: need racial bias in death sentences of Δ
Conviction UPHELD
Death Penalty | 50
Significance of Resulting Harm
Causation Principles
Causation requirement has 2 components:
1. Factual cause: “but for”, harm would not have occurred in the absence of a Δ’s act.
2. Proximate cause: in addition to factual cause must bear a sufficiently close relationship to the
resulting harm - usually at the root of all causation problems
• Some crimes defined without regard to result of Δ’s conduct – ex. attempts
• BUT when intended result occurs in ways not intended or unintended result occurs in an unlikely way
law must distinguish variations
Statutory standards:
• Most state codes do not include explicit rules for determining causation
○ Based on common law principles
○ 12 states adopt MPC formulation for causation - holds an actor responsible for a result when his
action is ‘but for’ antecedent, if it involves the same kind of harm he intended or risked, so long as not
too remote
Foreseeability and Coincidence
Situations with causation: did not intend result but sets a chain of events into motion, and the result is
foreseeable
Situations with causation and intended result but didn’t directly cause the result
Model Penal Code Approach
MPC § 2.03. Causal Relationship Between Conduct and Result; Divergence Between Result Designed or
Contemplated and Actual Result or Between Probable and Actual Result.
(1) Conduct is the cause of a result when:
(a) it is an antecedent but for which the result in question would not have occurred; and
(b) the relationship between the conduct and result satisfies any additional causal requirements
imposed by the Code or by the law defining the offense.
(2) When purposely or knowingly causing a particular result is an element of an offense, the element is
not established if the actual result is not within the purpose or the contemplation of the actor unless:
(a) the actual result differs from that designed or contemplated, as the case may be, only in the
respect that a different person or different property is injured or affected or that the injury or harm
designed or contemplated would have been more serious or more extensive than that caused; or
{Transferred intent to unintended victim}
(b) the actual result involves the same kind of injury or harm as that designed or contemplated and is
not too remote or accidental in its occurrence to have a [just] bearing on the actor's liability or on the
gravity of his offense.
{Potentially can still be liable for interceding event as long as end harm is the same – jury question}
(3) When recklessly or negligently causing a particular result is an element of an offense, the element is
not established if the actual result is not within the risk of which the actor is aware or, in the case of
negligence, of which he should be aware unless:
(a) the actual result differs from the probable result only in the respect that a different person or
different property is injured or affected or that the probable injury or harm would have been more
serious or more extensive than that caused; or
{Transfer intent to unintended victim}
Causation | 51
(b) the actual result involves the same kind of injury or harm as the probable result and is not too
remote or accidental in its occurrence to have a [just] bearing on the actor's liability or on the gravity of
his offense.
{Potentially can still be liable for interceding event as long as end harm is the same – jury question}
Common Law Approach
• Take victim as you find them: eggshell victim
• Omissions can be a causal factor if there is a legal duty to act
• Transferred Intent
ex. Intending to kill someone but miss and kill someone else
○ intent to kill the first person is transferred to the killing of the second person
Why not attempted murder and involuntary manslaughter?
○ When a crime requires intention to cause a particular result that element of the crime is satisfied if
the Δ accidentally causes that result to one person while intentionally trying to cause it to another
- Supported by MPC §2.03(2)(a):
• If causation for higher crime is not found, usually can find enough causation for lower crime
- Not all or nothing proposition
• Medical Malpractice: Many courts find initial assailant liable for victim’s death even with significant
medical error.
Need some kind of extreme event – break out of disease in hospital
• Failing to seek Medical Treatment: Not but for unless guaranteed to save
○ State v. Montoya (NM 2002): wounded by others left to die, not but for since medical attention
might have saved him
○ State v. Muro (NE 2005): similar, fractured skull, delayed medical treatment, medical treatment
only possible way of saving but not guaranteed – no ‘but for’
People v. Acosta (CA 1991) Foreseeability: But No Mens Rea
F: Δ stole a car and fled from cops, during chase 2 helicopters crashed, convicted of murder
Actual cause: ‘but for’ the Δ’s actions would the injury have occurred
Without actual cause cannot be considered a proximate cause
If foreseeable that during chase helicopters would crash then there is proximate cause – trier of fact
BUT no sufficient evidence of malice: did not consciously disregard the risk to helicopter pilots since risk
was so small they would crash – cannot be convicted of murder
[Contrast] People v. Brady (CA 2005): meth lab catches fire, reasonably foreseeable that pilots could
die due to the location planes would be needed to extinguish fire – convicted of murder
People v. Arzon (NY 1978) Foreseeable Harm
F: Δ set fire, firefighters tried to flee but were trapped by entirely separate fire, convicted of 2nd degree
murder
R: People v. Kibbe: ultimate harm is something which should have been foreseen as being reasonably
related to the acts of the accused.
People v. Stewart: possibility that death resulted from a factor not attributable to the Δ could not be
ruled out beyond a reasonable doubt
Combining two: individual criminally liable. Conduct was a sufficiently direct cause of the death
Ultimate harm is something which should have been foreseen as being reasonably related to his acts
HERE: Foreseeable fire would place firefighters in life threatening situation – {same as MPC§2.03(3)}
People v. Warner-Lambert Co. (NY 1980) Foreseeable Cause
Causation | 52
F: explosion in chewing gum factory, owners knew that there were 2 highly explosive chemicals used in
the manufacturing process. Do not know exactly what caused the explosion.
R: Δs needed to foresee whatever caused explosion
[Distinct] People v. Deitsch (NY 1983): Created circumstances that led to death by a foreseeable
intervening event the Δs cause death in a sufficiently direct manner to warrant criminal liability.
Subsequent Actions Intended to Produce the Result
Model Penal Code Approach
MPC §210.5. Causing or Aiding Suicide.
(1) Causing Suicide as Criminal Homicide. A person may be convicted of criminal homicide for
causing another to commit suicide only if he purposely causes such suicide by force, duress or
deception.
(2) Aiding or Soliciting Suicide as an Independent Offense. A person who purposely aids or solicits
another to commit suicide is guilty of a felony of the second degree if his conduct causes such suicide
or an attempted suicide, and otherwise of a misdemeanor.
Common Law Approach
People v. Campbell (MI 1983) Hope of Death
F: Campbell convinced Basnaw to kill himself while heavily drunk. Basnaw had slept with Campbell’s
wife, so Campbell gave him a gun with 5 shells.
H: Cannot be charged with murder, since Campbell only hoped Basnaw would kill himself, not the
degree of intention necessary.
People v. Kevorkian (MI 1994) Assisted Suicide
F: assisted suicide by Kevorkian.
Early common law view: assisted suicide is murder
Modern statute: treats suicide as separate crime
State v. Sexson: distinction between active participation and involvement in events leading up to suicide
Only where there is probable cause to believe the death was the direct and natural result of a Δ’s act
then can be charged with murder
Assisted Suicide: Current Law
• One who successfully urges or assists another to commit suicide is not guilty of murder
○ As long as deceased were mentally responsible and was not forced, deceived, or otherwise subject
to pressures that rendered his action partly involuntary.
• Most states also reject manslaughter or negligent homicide conviction
○ Exception: recklessly or negligently makes means available to a person who is intoxicated
despondent or agitated can be convicted of a lesser degree of homicide
• Constitutional? Washington v. Glucksberg (1997): those who wish to commit suicide have no
constitutional right to obtain assistance in doing so.
○ BUT jurisdictions CAN have statutes to permit assistance
Subsequent Human Action
• Causation treats all physical events that follow a person’s actions as caused by that person
• Subsequent human actions are treated as intervening/outside the causal law, BREAK the causal chain
Exceptions:
Causation | 53
○ Involuntary actions caused by prior actor
○ Subsequent acts constrained by compulsion of duty, by duress, or by a momentary emergency
precipitated by the prior actor
○ Drug purchasers: Courts often ignore or reject the intervening act-doctrine and hold the drug
supplier responsible for the foreseeable, through freely chose acts of his purchaser
Subsequent Acts of Third Parties
Bailey v. Commonwealth: Subsequent Acts Of Third parties
F: Bailer knew Murdock had bad eye sight and how to get him riled up, caused a situation where police
came by and Murdock shot at them and was subsequently shot by police and died from his wounds.
Convited of involuntary manslaughter
[Contrast with Campbell, HERE foreseeable third party intervention?]
People v. Cervantes (2001): Cervantes shot a rival gang member. That rival gang member than killed one
of the Δ’s fellow gang members. Cervantes was convicted of murder because he had the mens rea for
murder in shooting the rival gang member and should reasonably foresee that there would be
retaliation
Actions That Recklessly Risk the Result
People v. Kern (NY 1989)
F: White youths chasing a black man who was hit by a car trying to cross the freeway, the chasers were
charged with second degree manslaughter. Their chasing violently was direct cause of man’s death.
People v. Matos (NY 1994): police chasing Δ fell to his death, court held death foreseeable – felony
murder
Commonwealth v. Atencio (MA 1963)
F: Russian roulette
Rule: interceding independent act BUT guarantee someone will die, duty of Δ to not cooperate
[Campbell Court would come out differently]
Drag Racing Cases
Commonwealth v. Root (PA 1961)
F: drag racing on a two lane road, Δ was in the lead and opponent tried to pass him and was hit by an
oncoming truck, convicted of involuntary manslaughter - unlawful and reckless conduct was the DIRECT
cause of the death
Rule: Proximate cause standard of torts too high, HERE Δ actions were not a direct cause sufficiently to
make him criminally liable – deceased independently decided to pass – intervening free will act
State v. McFadden (IA 1982) [DIFFERENT Jurisdiction than Root)
F: 2 drivers drag racing, Δ and another driver. The other driver lost control and hit an oncoming car,
killing himself and a 6 year old girl. – convicted of involuntary manslaughter
Rule: Sulgrove’s voluntary and reckless participation does not bar Δ from conviction of involuntary
manslaughter- Proximate cause (w/o two drivers no race) PLUS requirement of recklessness will prevent
unjust manslaughter convictions
Causation | 54
Attempts
• Other areas of law deal with causation and the proceeding result, attempts are treated differently
from identical conduct that does not produce the same harm – results matter
Theories:
○ Stephen: seems natural to punish two people who commit the same act of negligence differently
based on severity of outcomes
○ Hart: Stephen’s opinion conflicts with important principles of justice, no good reason to punish
essentially based on luck
○ Morse: agrees should not be based on luck
○ Feinberg: proportionality based blameworthiness, not outcomes
Model Penal Code Approach
• Mens Rea: purpose to achieve result/commission of the crime
• Actus Reus:
• Defense: § 5.01(4) – renunciation: abandonment OR prevention
BUT cannot be motivated by changed circumstances making detection easier
MPC §5.01. Criminal Attempt.
(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;
or
(c) purposely does or omits to do anything that, 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.
{Purpose is the same as CL mens rea requirement of specific intent to produce proscribe result}
(2) Conduct That May Be Held Substantial Step Under Subsection (1)(c). Conduct shall not be held to
constitute a substantial step under Subsection (1)(c) of this Section unless it is strongly corroborative
of the actor's criminal purpose. Without negativing the sufficiency of 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, searching for or following the contemplated victim of the crime;
(b) enticing or seeking to entice the contemplated victim of the crime to go to the place
contemplated for its commission;
(c) reconnoitering the place contemplated for the commission of the crime;
(d) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will
be committed;
(e) possession of materials to be employed in the commission of the crime, that are specially
designed for such unlawful use or that can serve no lawful purpose of the actor under the circumstances;
(f) possession, collection or fabrication of materials to be employed in the commission of the crime,
at or near the place contemplated for its commission, if such possession, collection or fabrication serves
no lawful purpose of the actor under the circumstances;
(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 Section 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.
Attempts | 55
(4) Renunciation of Criminal Purpose. When the actor's conduct would otherwise constitute an attempt
under Subsection (1)(b) or (1)(c) of this Section, it is an affirmative defense that he abandoned his effort
to commit the crime OR otherwise prevented its commission, under circumstances manifesting a
complete and voluntary renunciation of his criminal purpose. The establishment of such defense does
not, however, affect the liability of an accomplice who did not join in such abandonment or prevention.
Within the meaning of this Article, renunciation of criminal purpose is not voluntary if it is motivated,
in whole or in part, by circumstances, not present or apparent at the inception of the actor's course of
conduct, that increase the probability of detection or apprehension or that make more difficult the
accomplishment of the criminal purpose. Renunciation is not complete if it is motivated by a decision to
postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to
another but similar objective or victim.
MPC: §5.05Grading of Criminal Attempt,
(1) Grading. Except as otherwise provided in this Section, attempt, solicitation and conspiracy are
crimes of the same grade and degree as the most serious offense that is attempted or solicited or is an
object of the conspiracy. An attempt, solicitation or conspiracy to commit a [capital crime or a] felony
of the first degree is a felony of the second degree.
(2) Mitigation. If the particular conduct charged to constitute a criminal attempt, solicitation or
conspiracy is so inherently unlikely to result or culminate in the commission of a crime that neither such
conduct nor the actor presents a public danger warranting the grading of such offense under this
Section, the Court shall exercise its power under Section 6.12 to enter judgment and impose sentence
for a crime of lower grade or degree or, in extreme cases, may dismiss the prosecution.
(3) Multiple Convictions. A person may not be convicted of more than one offense defined by this
Article for conduct designed to commit or to culminate in the commission of the same crime.
Common Law Approach
Attempt requires:
• Mens rea: of purpose or ‘specific intent’ to produce the proscribed result
○ Even when lesser mens rea would suffice for conviction of the complete offense
○ Need intent to succeed otherwise it is not an attempt
Rationale: intent to commit a crime is more wrong than one who does so recklessly or negligently
• Actus reus: significant/substantial act in furtherance of intent – varies. see below
• Attendant Circumstances: not always necessary to have specific intent for attendant circumstances
ex. Lack of consent for rape and knowledge of age for statutory rape
○ Regina v. Khan (1990): attempted rape - reckless as to whether or not victim was consenting
○ Commonwealth v. Dunne (MA 1985): convicted of attempted statutory rape w/o knowledge of age
• Felony-murder - most states reject the idea of attempted felony-murder
• Manslaughter - majority allow attempted manslaughter
• Involuntary manslaughter - impossible to attempt involuntary manslaughter – NEVER INTEND to kill
• Defenses: NO defense of abandonment
Majority: remorse and restitution ONLY affect sentences
• Preparation vs. Attempt: Separate out mere preparation/ thoughts of a crime from Attempt
○ Hard to determine test:
○ Definitely not first step on way to criminal intent is not necessarily sufficient
AND final step is not necessarily required
○ Want to preserve “locus penitentiae”: an opportunity to repent, change one’s mind
Attempts | 56
Mens Rea
Smallwood v. State (MD 1996) Specific Intent
F: Smallwood knowingly had sex while infected with HIV. Charged with assault with intent to murder.
R: Need to prove specific intent to kill at time of assaults
Probability of death from HIV not same as firing gun  cannot infer intent to kill
[Distinct from]
State v. Hinkhouse (OR 1996): actively concealed, lied about and admitted he would spread disease –
sufficient to show intent to kill
State v. Caine (LA 1995): stabbed with HIV needle “I’ll give you AIDS” enough intent
Thacker v. Commonwealth (1922) More than Recklessness
F: Thacker was not allowed in tent, walked down the road turned and shot, no intent to kill  cannot be
convicted of attempted murder
H: Need full purpose/specific intent, impossible to have culpability level of recklessness and then to have
full intent of crime
Actus Reus
Majority Approach:
• Substantial Steps Test: echoes MPC approach
1. Act is a substantial step in a course of conduct designed to accomplish a criminal result
2. Act is strongly corroborative of criminal purpose in order for it to constitute such a substantial step
○ Focuses on what actor has already done, not what remains to be done
○ Results in attempt liability without finding whether actor would have desisted prior to the crime
- Less of a hurdle for prosecution
Minority Approaches:
• Dangerous Proximity Test: conduct “which tends to effect the commission of the crime.”
Affects when police can enter the scene
• Equivocality Test: examines not extent of actions but how clearly his actions bespeak his intent
Rationale: overt acts are sufficient to determine the guilty purpose with which they are done
Criticism: danger involved in acts that in appearance are perfectly innocent
• Final Act doctrine: need to be real close
Most courts do not accept, too risky
People v. Rizzo (NY 1927) Dangerous Proximity Test
F: 4 guys were planning on robbing a payroll guy, as they were driving around trying to find him they
were arrested by 2 cops.
Reasoning: “idea remains the same, act or acts must come or advance very near to the accomplishment
of the intended crime. There must be dangerous proximity to success.”
H: Δs not guilty of an attempt to commit robbery when they had not found or reached the presence of
the person they intended to rob.
McQuirter v. State (AL 1953) Equivocality Test
F: Lady followed by Δ, scared away, admitted was going to rape someone
Rule: conviction of attempted to commit an assault with intent to rape jury must be satisfied beyond a
reasonable doubt that Δ intended to force sexual intercourse: question for the jury
United States v. Jackson (1977) Substantial Test – Majority Approach
Attempts | 57
F: Tried to rob a bank, one of the members ratted them out, arrested before able to commit robbery
R: Substantial Steps Test: Two tiered inquiry of US v. Mandujano
First: Act is a substantial step in a course of conduct designed to accomplish a criminal result
Second: Act be strongly corroborative of criminal purpose in order for it to constitute such a
substantial step
Focuses on what actor has already done, not what remains to be done
Would result in attempt liability but no finding whether actor would have probably desisted prior to the
crime - Less of a hurdle for prosecution
Criticism of Substantial Steps Test:
• US v. Harper (1994): Δs set an ATM bill trap but their conviction of attempted to robbery was reversed
by appeals court – intent but no substantial steps (steps only caused potential appearance of victim, as
opposed to walking directly at the victim)
• US v. Joyce (1982): Overturned conviction of attempt to purchase cocaine with intent to distribute
because Δ stopped purchase attempt realizing undercover agent  failed to commit a substantial step
Statute Defined Attempts
• Must be targeted and not criminalize activity that is constitutionally protected
○ Some states have found their statutes too vague and  unconstitutional
• Burglary: was defined as breaking and entering at night, apprehended before breaking in would not be
enough for an attempt charge  Burglary offense has been enlarged.
• Assault: attempt to commit a battery
• Counterfeit: made criminal only if with intent to defraud
• Teaching explosives makings: criminal only if intended knowledge will be used in furtherance of civil
disorder
• Policing measures: dealing with those that engage in suspicious behavior
○ Procedural: allow police to stop and detain
○ Substantive: crime to loiter in circumstances giving rise that a crime might be attempted
• Stalking: anti-stalking statutes criminalize harassing conduct that serves to terrorize and torment
another, may serve as prelude to violent act
Attempts | 58
Solicitation
Solicitation: pay or encourage someone to commit a crime on your behalf
• Act of solicitation itself is now a crime even though it might not be enough for an attempt
Model Penal Code Approach
• Mens rea: purpose of promoting or facilitating
• Actus reus: commands, encourages or requests another person to commit or attempt a crime
○ Can be uncommunicated §5.02(2)
•Defenses [§5.02(3)]: renunciation- persuaded agent to stop OR prevented commission,
- Affirmative defense
MPC § 5.02. Criminal Solicitation.
(1) Definition of Solicitation. 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 constitute such crime or an attempt to commit such crime or
would establish his complicity in its commission or attempted commission.
(2) Uncommunicated Solicitation. 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) Renunciation of Criminal Purpose. 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.
Common Law Approach
• Treat solicitation as an independent crime
• Usually reserved for solicitation of certain crimes
• Substantial number of states model after MPC
• States differ as to whether or not solicitation can constitute a punishable attempt
Rationale: Δ does not intend to commit offense personally
United States v. Church compared with State v. Davis
• No Defenses: Guilty regardless of result
○ offense is complete at time of solicitation
Criticism:
• Creates potential problems by moving intent closer to thought as opposed to action/result
Differing Views on Solicitation as Attempt:
United States v. Church (1989) Solicitation as Attempt
F: Hired hitman to kill wife to get custody of his kid, undercover cop was hitman, staged his wife’s death
R: Substantial steps, if not completion, of crime – convicted of attempted murder
State v. Davis (MO 1928) Solicitation Not an Attempt
F: Δ wanted to murder lover’s husband, ended trying to hire undercover
R: Evidence shows acts of preparation failing to lead directly or proximately toward consummation of
intended crime. Undercover had no intention of ever carrying out the intended crime
Attempted Solicitation
Attempt to solicit someone to commit a crime but fail to do so
Under MPC: attempted solicitation leads to accomplice liability
§ 2.06. Liability for Conduct of Another; Complicity.
Solicitation | 59
(3) A person is an accomplice of another person in the commission of an offense if:
(a) with the purpose of promoting or facilitating the commission of the offense, he
(i) solicits such other person to commit it
§5.02(2): immaterial. . . . that actor fails to communicate with the person he solicits to commit a crime
Solicitation | 60
Impossibility
“If all which an accused person intends to do would, if done, constitute no crime, it cannot be a crime to
attempt to do with the same purpose a part of the thing intended.”
• Pure/real legal impossibility: No statute prohibits  no crime
• Factual Impossibility: attendant circumstance unknown or beyond control
Historic: allowed as a defense -Jaffe, Berrigan
Modern: not allowed, mistake affects only result  attempt is complete - Dlugash
• Objective Approach: objectively impossible (try to empty the ocean)
Modern Penal Code Approach
• Eliminates Defense of Impossibility In Virtually All Situations
MPC § 5.01. Criminal Attempt.
(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:. . . .
(c) purposely does or omits to do anything that, 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.
MPC § 5.05.(2) Mitigation in Cases of Lesser Danger.
(2) Mitigation. If the particular conduct charged to constitute a criminal attempt, solicitation or
conspiracy is so inherently unlikely to result or culminate in the commission of a crime that neither
such conduct nor the actor presents a public danger warranting the grading of such offense under this
Section, the Court shall exercise its power under Section 6.12 to enter judgment and impose sentence
for a crime of lower grade or degree or, in extreme cases, may dismiss the prosecution.
People v. Dlugash (NY 1977) Modern Approach/MPC
F: Victim most likely dead already when Δ shot him again – convicted of attempted murder
Statute: “crime could have been committed had the attendant circumstances been as such person
believed them to be.”{under Jaffe would have been impossibility}
United States v. Oviedo (1976) Lack of Purpose
F: undercover agent tries to buy heroin but it was not heroin. Attempt to sell heroin?
Δ argues he knew it was not heroin, just trying to rip off undercover agent BUT factual question
Did not intend to commit the crime, mistake of fact  legal impossibility
Common Law Approach
People v. Jaffe (1906) Historic
F: Δ thought he bought stolen goods but they were not stolen – convicted of attempt to commit a crime
R: Despite motives of Δ he could not commit a crime, does not have requisite knowledge
[Opposite] People v. Rojas (CA 1961): same fact, convicted – intent is in the mind {MPC approach}
[Contrast] State v. Smith (NJ 1993): HIV prisoner spat in officers face thinking it would infect and kill
him, still convicted of attempted murder – as long as Δ believed it was possible
United States v. Berrigan (1973) Mistake of Fact
F: smuggled letters into jail knowing it was against the regulations, warden knew about it in order to get
Δ busted. Regulation says “without knowledge and consent”.
H: Mistake of fact: “attempting to do that which is not a crime is not attempting to commit a crime”
Impossibility| 61
Complicity and Conspiracy
Accomplice Liability
Derivative Liability: Accomplices of another person are accountable for that person’s conduct
• Aiding and abetting: present at the time of commission of crime but not principal actor
• Accomplice/accessory: not present at the time of commission but connected to principal
• Accessory after the fact: person knowing a felony has been committed, assists the felon
○ where applicable separate offense – lesser punishment
Derivative Nature of Accomplice Liability
• Accomplice liability does not involve imposing liability on one party for the wrongs of another solely
because of the relationship between the parties
• Liability requires culpability (mens rea) AND conduct (actus reus) by the accomplice –
○ Must be intentional conduct designed to persuade or help – that makes it appropriate to blame
him for the what the primary actor does.
• Derivative: means that his liability is dependent on the principals violating the law.
• MAIN ISSUE: the responsibility of the accomplice for the principal actor’s violation of law
There MUST be a violation of law otherwise NO ACCOMPLICE LIABILITY
○ Issues arise when that violation of law is an attempt by the principal
Mens Rea
Model Penal Code Approach:
Mens rea:
• For actions of the principal: purpose of promoting or facilitating the commission of the offense
§2.06(3), actual intention of some sort with respect to conduct of principal
• Attendant Circumstances: deliberate ambiguity, attitude toward circumstances left to courts
{For attempts: mens rea must be intent even if objet crime has lower mens rea}
MPC § 2.06. Liability for Conduct of Another; Complicity. . . .
(3) A person is an accomplice of another person in the commission of an offense if:
(a) with the purpose of promoting or facilitating the commission of the offense, he
(i) solicits such other person to commit it, or
(ii) aids or agrees or attempts to aid such other person in planning or committing it, or
(iii) having a legal duty to prevent the commission of the offense, fails to make proper effort so
to do; or
(b) his conduct is expressly declared by law to establish his complicity.
(4) When causing a particular result is an element of an offense, an accomplice in the conduct causing
such result is an accomplice in the commission of that offense if he acts with the kind of culpability, if
any, with respect to that result that is sufficient for the commission of the offense.
(5) A person who is legally incapable of committing a particular offense himself may be guilty thereof
if it is committed by the conduct of another person for which he is legally accountable, unless such
liability is inconsistent with the purpose of the provision establishing his incapacity.
(6) Unless otherwise provided by the Code or by the law defining the offense, a person is not an
accomplice in an offense committed by another person if:
(a) he is a victim of that offense; or
(b) the offense is so defined that his conduct is inevitably incident to its commission; or
(c) he terminates his complicity prior to the commission of the offense and
(i) wholly deprives it of effectiveness in the commission of the offense; or
(ii) gives timely warning to the law enforcement authorities or otherwise makes proper effort to
prevent the commission of the offense.
Accomplice Liability | 62
(7) An accomplice may be convicted on proof of the commission of the offense and of his complicity
therein, though the person claimed to have committed the offense has not been prosecuted or convicted
or has been convicted of a different offense or degree of offense or has an immunity to prosecution or
conviction or has been acquitted.
Hicks v. United States (1893) Intent to Encourage
F: Hicks brought victim to Rowe who then killed victim. Convicted of murder – aiding and abetting
R: Words spoken with intention of encouraging and abetting, not just having the result of encouraging
AND ALSO need an act – HERE: if words have effect of encouragement (counts as act of facilitation)
State v. Gladstone (WA 1970) Knowledge Not Enough
F: undercover cop went to Gladstone to try and purchase marijuana but he did not have enough and
told him how to get to Kent’s house - convicted of aiding and abetting in the unlawful sale of marijuana
Mens rea: no intent, no link between Gladstone and Kent – only aided in buying, not selling
Common Law Approach
Mens Rea:
For Actions of Principal: broader application than MPC, liability can extend to crimes outside the
objective crime
• Natural and Probable Consequence Rule: Aiders and abettors should be responsible for crimes they
have probably and FORESEEABLY put in motion - Luparello
○ “Ordinary Course of things” – limits natural and probable consequences rule to planned events, not
to any event that could conceivably happen - Roy
For Attendant Circumstances: lesser mens rea than for an attempt {which is always intent}
When recklessness is mens rea for object crime, accomplices are held to same standard
- Cannot have intent to be reckless, therefore mens rea is recklessness - McVay, Russell
People v. Luparello (CA 1987) Natural and Probably Consequence Rule
F: Δwanted to find a former lover, used his friends to get info, without Δ present his friends shot and
killed person with knowledge – convicted of murder
Rule: People v. Croy (CA 1985): aider and abettor is vicariously liable
Natural and Probable Consequence Rule: Aiders and abettors should be responsible for crimes they have
probably and FORESEEABLY put in motion. – AFFIRMED
[Similar to felony murder but no limits, mental state is almost irrelevant, more like negligence]
[Similar to Pinkerton Doctrine for conspiracies]
Roy v. United States (1995) Limits on Luparello “Ordinary Court of Things
F: Police informant tried to buy a gun off of Roy, Roy referred him to Ross, who instead of selling him a
gun robbed the informant.
Doctrine states in “ordinary course of things” should be what may reasonably ensue from planned
events NOT what might conceivably happen
Regina v. Hyde (1991) Joint Enterprise
F: 3 Δs beat man, one ended up killing him not sure who
Caused risk that someone could be killed
Accomplice Liability | 63
Joint enterprise: any accomplice who foresaw as a real possibility that one of the others would murder
the victim could be found guilty of murder
[Not felony murder due to merger doctrine,  probably why they went for accomplice liability]
State v. McVay (RI 1926) Recklessness for Attendant Circumstances
F: boiler on a steamer burst and killed people – convicted as accessory to manslaughter
Rule: No inherent reason why prior to commission of crime one cannot aid in doing something in a
grossly negligent manner
Where the ultimate culpability level of the principle is less than full purpose and the accomplice
shares the same culpability level, then not treating you any worse as to result
[Same as MPC §2.06(4)
People v. Russell (NY 1998) Recklessness for Attendant Circumstances
F: Gun battle in Red Hook, principal looking for a student was killed by a stray bullet. – convicted all Δs of
2nd degree murder
Rule: depraved indifference murder: requires that Δs recklessly engaged in conduct creating a grave risk
of death to another person and thereby caused the death of another person
Accomplice liability: set out to kill one another does not rationally preclude a finding that they
intentionally aided each other to engage in mutual combat that caused Daly (principal’s death).
Other Approaches to Mens Rea
Mens Rea less than purpose/intent:
• Facilitation: some states treat giving aid with lesser mens rea as a separate crime – lesser penalty
NY - “A person is guilty of criminal facilitation in the 2nd degree when, believing it probably that he is
rendering aid to a person who intends to commit a crime, he engages in conduct which provides such
person with means or opportunity for the commission thereof and which in fact aids such person to
commit a felony.”
• Seriousness of substantive offense: some courts doubt whether only a single mens rea standard
should apply for aiding and abetting, instead they believe that seriousness of the offense should be
considered.
People v. Laura: purpose was required to convict of lesser offenses but knowledge sufficed to convict
of major crimes
Statutory Crimes of Facilitation: impose a statutory mens rea requirement
• Statutes aimed at a particular kind of assistance with calibrated punishment for different roles in
specific crimes.
• Juvenile gun possession: CO – intentionally, knowingly, or reckless provides a hand gun to person
under 18 commits a crime
• Material support: terrorism related
U.S.C. - If actor knows or intends that support will be used in carrying certain federal offenses
Material: any property tangible or intangible
• Money Laundering: broadly and most widely used substantive crime of facilitation
U.S.C. - need to prove only Δ knew funds came from illegal activity of some sort
Accomplice Liability | 64
Actus Reus
Along with the required mens rea there also must be an act of facilitation (actus reus)
Causation and Complicity
Whether Δ is accessorily liable for an event that takes place through intermediate occurrences
• MPC: do not need to establish causation – mens rea and attempt to aid whether aid was necessary or
communicated is irrelevant
• CL: not necessary to establish “but for” relation between the Δ’s action and criminal conduct of
another. Even if same result would have occurred without the Δ’s contribution he can be liable as an
accomplice if he acted with the required mens rea
Wilcox v. Jeffery (1951) Encouragement
F: Went to go see jazz player knowing he could not play in UK and then wrote about it – convicted of
aiding and abetting Hawkins in violating an Aliens Order
R: no accidental presence, appellant knew it was unlawful act for him to play; payment was
encouragement for illegal act and took advantage of it using the performance as copy for his magazine
State v. Tally (1894) Uncommunicated Aid
F: Δ wanted victim killed, prevented telegram from reaching him warning people were out to kill him
H: Shared purpose - hope he is killed
R: Do not need ‘but for’ causation only that is makes it easier for principal to succeed
Attempted Complicity
Attempt to encourage principal who commits crime but none of the encouragement is rendered
Common Law: some form of aid MUST be rendered to the principal offender, otherwise no liability
Model Penal Code: No “Attempted Complicity” – would be considered an accomplice
MPC § 2.06. Liability for Conduct of Another; Complicity. . . .
(3) A person is an accomplice of another person in the commission of an offense if:
(a) with the purpose of promoting or facilitating the commission of the offense, he
(ii) aids or agrees or attempts to aid such other person in planning or committing it, or
 an accomplice as long as person is acting with required mens rea when the personattempts to aid
another person in planning or committing the offense
Attempted Solicitation
Attempt to solicit someone to commit a crime but fail to do so
Under MPC: attempted solicitation leads to accomplice liability
§ 2.06. Liability for Conduct of Another; Complicity.
(3) A person is an accomplice of another person in the commission of an offense if:
(a) with the purpose of promoting or facilitating the commission of the offense, he
(i) solicits such other person to commit it
§5.02(2): immaterial. . . . that actor fails to communicate with the person he solicits to commit a crime
Complicity by Omission
Under the MPC and Common Law: a person can be an accomplice through an omission if they have a
legal duty to act and fail to do so, the mens rea may vary depending on jurisdiction
MPC § 2.06(3) A person is an accomplice of another person in the commission of an offense if:
(a) with the purpose of promoting or facilitating the commission of the offense, he
(iii) having a legal duty to prevent the commission of the offense, fails to make proper effort so
to do; or
Accomplice Liability | 65
• State v. Davis: Δ watched son rape victim in Δ’s home – facilitated and legal duty
• CG v. State (AL): breached duty in order to enjoy continued favor of MD, there is a derived benefit
from the wrongdoing
• State v. Walden (NC 1982): presumed mens rea where abuse occurred in the presence of a Δ’s parent
Feigned Principal
• Derivative Liability: means that accomplice’s liability is dependent on the principal violating the law
 if the principal in order to violate the law requires a specific intent and is faking (no intent)there
can be no derivative liability
• Common Law:
○ To make Δ liable for acts of accomplice must share a common design and motive - Hayes
○ Act of feigned accomplice may never be imputed to the targeted Δ for purposes of obtaining a
conviction - Varden
State v. Hayes (MO 1891) No Common Design
F: Hill was approached by Δ to burglarize a general store, Hill was a relative of the owner. Hill faked
going along with Δ in order to entrap him. Hill opened the window for Δ so he could enter.
R: State v. Jansen: Each person has own intent. All elements of the act must exist and be imputable to
the Δ. HERE: did not enter warehouse, material element of the crime – insufficient actus reus
Cannot derive liability since Hill did not have intent
[Compare] Wilson v. People: to get back at buddy, π set him up in a burglary attempt and π was
initially convicted as an accomplice but was reversed – π had insufficient mens rea
Vaden v. State (AK 1989) Feigned Accomplice
F: Vaden promoted illegal hunting practices and Snell, an undercover cop, was assigned to get his
services. Snell killed 4 foxes illegally.
R: common law rule that act of feigned accomplice may never be imputed to the targeted Δ for
purposes of obtaining a conviction
Entrapment
• General rule: one who aids and abets another in criminal activity is liable for all of the natural and
probable consequences of his accomplice’s criminal acts potential for abuse on law enforcement once
gains accomplice
Δ may not predisposed to commit the crime
• Model Penal Code Approach
§ 2.13. Entrapment.
(1) A public law enforcement official or a person acting in co-operation with such an official perpetrates
an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or
encourages another person to engage in conduct constituting such offense by either:
(a) making knowingly false representations designed to induce the belief that such conduct is not
prohibited; or
(b) employing methods of persuasion or inducement that create a substantial risk that such an
offense will be committed by persons other than those who are ready to commit it.
(2) Except as provided in Subsection (3) of this Section, a person prosecuted for an offense shall be
acquitted if he proves by a preponderance of evidence that his conduct occurred in response to an
entrapment. The issue of entrapment shall be tried by the Court in the absence of the jury.
Accomplice Liability | 66
(3) The defense afforded by this Section is unavailable when causing or threatening bodily injury is an
element of the offense charged and the prosecution is based on conduct causing or threatening such
injury to a person other than the person perpetrating the entrapment.
• Common Law Approach
○ Majority: adopt subjective predisposition test: need warranted inference of predisposition
○ Minority: objective predisposition test: Adopted by MPC because primary justification of defense is
to discourage police misconduct: ‘was the encouragement likely to induce an ordinary, law abiding
citizen to offend?’
Problems with Derivative Nature of Accomplice Liability
Principal Did Not Break The Law Or is Not Culpable
• Assisting Suicide: not a crime to commit suicide  could not convict someone who aids a suicide
Modern: statutes make it a crime to assist suicide
• Innocent agent doctrine: principal forced to commit crime by secondary actor, principal complete
defense of coercion, secondary actor guilty. Principal no mens rea, secondary mens rea, MPC §2.06(2)
Other Instances:
(a) statute designates a crime can only be committed by a certain class of people  secondary
cannot be guilty if principal does not fall within that class
Solved by making secondary actor punishable as a principal
(b) Where nature of action prohibited is such that it can be done only by the body of the person
and not through instrumentality of another (ex drunk in public)
MPC § 2.06. Liability for Conduct of Another; Complicity.
(2) A person is legally accountable for the conduct of another person when:
(a) acting with the kind of culpability that is sufficient for the commission of the offense, he causes
an innocent or irresponsible person to engage in such conduct; or
(b) he is made accountable for the conduct of such other person by the Code or by the law defining
the offense;
• Culpable but unconvictable principal: principal has a defense  not guilty of a crime
Courts hold to not grant accomplice defense because principal has a defense
• Acquitted Principal: principal acquitted of crime, secondary actor/accomplice can be still convicted
Same as MPC §2.06(7):
MPC §2.06(7) An accomplice may be convicted on proof of the commission of the offense and of his
complicity therein, though the person claimed to have committed the offense has not been prosecuted or
convicted or has been convicted of a different offense or degree of offense or has an immunity to
prosecution or conviction or has been acquitted.
• Defense limited to the accomplice: accomplice may have a defense even with required mens rea
○ Statutory rape: cannot convict the minor of aiding and abetting
○ Conspiracy: cannot charge a victim with conspiracy to commit an offense (Gebardi v. US)
Same as MPC §2.06(6)(a),(b)
MPC §2.06(6) Unless otherwise provided by the Code or by the law defining the offense, a person is not
an accomplice in an offense committed by another person if:
(a) he is a victim of that offense; or
(b) the offense is so defined that his conduct is inevitably incident to its commission;
• Difference in Degree of Culpability
○ Situations in which the secondary actor is convicted of a more serious crime than the principal:
Principal convicted of manslaughter through self-defense, secondary convicted of murder
○ Situations in which the secondary actor is convicted of a lesser crime than the principal:
Principal hired by secondary actor to kill, principal convicted of murder but second actor
convicted of manslaughter because acting in hot blood
Accomplice Liability | 67
Conspiracy
Crime of agreeing with another(s) to commit a criminal offense
Most conspiracy laws require agreement and something more (varies)
Primary rationale: deter special danger of group criminal activity
Comparison to attempt:
○ Attempt: merges with crime, get punished only once
○ Conspiracy: inchoate crime is independent from substantive crime
 can be convicted of BOTH conspiracy and complete crime WITH separate punishments
Duration:
• Traditionally: viewed as continuing offense: once formed remains in effect until objective either
achieved or abandoned, or thwarted by authorities (see Krulewitch)
• Statute of limitations runs when conspiracy terminates not when the offense is committed
Krulewitch v. United States (SCUSA 1949) Theory of implied, ongoing conspiracy
F: Δ was indicted for inducing and persuading a woman to go to FL for purposes of prostitution.
Theory of implied, ongoing conspiracy: after the initial conspiracy, there is an implicit subsidiary phase
of the conspiracy in which concealment is the sole objective.
Rule: No implied or secondary conspiracy of cover – conspiracy would be over-inclusive
Grunewald v. US (1957): need direct evidence of cover-up agreement, cannot be implied from
circumstantial evidence
Defenses:
• Impossibility: NO rule of automatic termination if conspiracy objectives become impossible
Unaware conspirators still carry on essence of the conspiracy
• Abandonment: when none of the conspirators are engaging in any action to further the conspiratorial
objectives
If inactivity continues for period equal to SoL prosecution is barred [MPC§5.03(7)(b)]
• Individual abandonment: abandoner must take ‘affirmative action’ to announce his withdrawal to all
other conspirators [MPC§5.03(7)(c)], some require abandoner thwart success of the conspiracy
Cuts off abandoner’s responsibility for later acts and statements of conspiracy
• Renunciation as a complete defense: only if the circumstances manifest renunciation of the actor’s
criminal purpose AND the actor succeeds in preventing commission of the criminal objectives
Punishment:
• Traditional: treat as a generic offense and prescribe punishment range unrelated to those authorized
for the object crimes
• Modern: punishment term is less than that provided for the object crime (U.S.C. 5 year max)
MPC§5.05(1): punishment for conspiracy the same as that authorized for the object crime, except in
cases of most serious felony
Punishment - When object crime is actually committed:
• Traditional: permits separate punishments with consecutive sentences for object crime and conspiracy
to commit it
• Model Penal Code:
MPC§1.07(1)(b): Δ may not be convicted of more than one offense if “one offense consists only of a
conspiracy or other form of preparation to commit the other.”
Conspiracy | 68
Model Penal Code Approach
MPC § 5.03. Criminal Conspiracy.
(1) Definition of Conspiracy. A person is guilty of conspiracy with another person or persons to commit
a crime if with the purpose of promoting or facilitating its commission he:
(a) agrees with such other person or persons that they or one or more of them will engage in
conduct that constitutes such crime or an attempt or solicitation to commit such crime; or
(b) agrees to aid such other person or persons in the planning or commission of such crime or of an
attempt or solicitation to commit such crime.
(2) Scope of Conspiratorial Relationship. If a person guilty of conspiracy, as defined by Subsection (1)
of this Section, knows that a person with whom he conspires to commit a crime has conspired with
another person or persons to commit the same crime, he is guilty of conspiring with such other
person or persons, whether or not he knows their identity, to commit such crime.
{limited to crimes that are committed for purposes of promoting or facilitating the conspiracy
(3) Conspiracy with Multiple Criminal Objectives. If a person conspires to commit a number of
crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object of the same
agreement or continuous conspiratorial relationship.
....
(5) Overt Act. No person may be convicted of conspiracy to commit a crime, other than a felony of the
first or second degree, unless an overt act in pursuance of such conspiracy is alleged AND proved to
have been done by him or by a person with whom he conspired.
(6) Renunciation of Criminal Purpose. It is an affirmative defense that the actor, after conspiring to
commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete
and voluntary renunciation of his criminal purpose.
(7) Duration of Conspiracy. For purposes of Section 1.06(4):
(a) conspiracy is a continuing course of conduct that terminates when the crime or crimes that are its
object are committed or the agreement that they be committed is abandoned by the defendant and by
those with whom he conspired; and
(b) such abandonment is presumed if neither the defendant nor anyone with whom he conspired does
any overt act in pursuance of the conspiracy during the applicable period of limitation; and
(c) if an individual abandons the agreement, the conspiracy is terminated as to him only if and
when he advises those with whom he conspired of his abandonment or he informs the law enforcement
authorities of the existence of the conspiracy and of his participation therein.
Conspiracy as a Form of Accessorial Liability
Common Law:
• Do not need the required mens rea of crime vicariously held liable for
• Vicariously Liable for crimes of conspirators as long as: Pinkerton
○ Done in furtherance of the conspiracy
○ Falls within the scope of the conspiracy
○ Reasonably foreseeable consequence of unlawful agreement
- Foreseeability is lower than accomplice liability
• MPC: rejects Pinkerton: impose accomplice liability on conspirators for substantive crimes of their
coconspirators ONLY when the strict conditions of accomplice liability are met
Conspiracy vs. complicity
• Traditional Accomplice Liability: requires proof that the secondary party intended to promote or
facilitate the specific offense for which the prosecution seeks to hold him accountable.
 liability as a coconspirator under Pinkerton considerable more expansive
• Modern Accomplice Liability: Objective foreseeability test to determine the liability of an accomplice
for originally unintended crimes committed by the principle in the course of criminal endeavor - Bridges
Conspiracy | 69
 liability as a coconspirator under Pinkerton the same or maybe even less
• Upon joining a conspiracy a Δ becomes liable for all acts committed by coconspirators in
furtherance of the conspiracy, including acts prior to his joining. - Blackmon
• Unintended turn of events: reasonably foreseeable, major players in conspiracy  regardless of
individual culpability Pinkerton applies - Alvarez
○ Alvarez limitation: Pinkerton liability might be negated by a Δ’s minor role in a conspiracy or lack of
knowledge about the unintended substantive offense
Pinkerton v. United States (SCUSA 1946) Vicarious Liability
F: One brother in jail still convicted of IRS violations and conspiracy
R: Continuous conspiracy if no evidence of affirmative action of withdrawal
Partnership continues then the partners act for each other going forward
All coconspirators still vicariously liable for any acts of other coconspirators:
○ Done in furtherance of the conspiracy
○ Falls within the scope of the conspiracy
○ Reasonably foreseeable consequence of unlawful agreement
State v. Bridges (NJ 1993) Expansion of Pinkerton
F: Δ at birthday party got into an argument with Strickland. Recruited friends and got guns to come back
and fight Strickland. Δ fought with a friend of Strickland and someone hit Δ’s friend who then began
firing their guns and fatally wounded a person. Convicted of murder
Rule: Impose vicarious liability on each conspirator for acts of others not within the scope of conspiracy
if they are reasonably foreseeable as natural consequences of conspiracy
US v. Blackmon (1988) Liability for prior acts of conspirators
Δ cannot be retroactively liable for substantive offenses committed prior to joining the conspiracy
BUT may be legally responsible for acts of conspirators prior to Δ’s entry in the sense that such acts
may be used as evidence against him in the prosecution of the crime of conspiracy
United States v. Alvarez Unintended turn of events – expands Pinkerton further
F: Major sting operation for drug bust, bust went wrong and an agent was killed. Conspirators convicted
of murder
Rule: Unintended turn of events reasonably foreseeable, major players in conspiracy  regardless of
individual culpability Pinkerton applies and convictions upheld
Alvarez limitation: Pinkerton liability might be negated by a Δ’s minor role in a conspiracy or lack of
knowledge about the unintended substantive offense
The Actus Reus of Conspiracy
Actus reus of conspiracy: agreement itself
“knowledge by Δ of all details of a conspiracy is not required. It is enough that he knows the
essential nature of it. It is black letter law that all participants in a conspiracy need not know each other
and success requires an organization wider than may be disclosed by his personal participation.”
Overt Act Requirement
• Conduct can be punishable as a conspiracy much earlier in the stages of preparation than the point
where liability begins to attach for attempt.
○ Some instances conspiracy is punishable without any overt act at all
Conspiracy | 70
○ Other instances an overt act must be proved, but the act may fall short of the kind of conduct
sufficient to constitute an attempt
• Traditional: Liability without an overt act: common law sole actus reus is agreement itself, no overt act
is required (or sometimes any overt act)
• Modern: Statutes requiring an overt act: most American statutes add an overt act requirement
○ Differing degrees of what is sufficient: preparatory vs in furtherance of
• In most serious offenses: May dispense with over act requirement [MPC§5.03(5)]
• Statute silent: SCUSA – no overt act requirement should be read into statute
Proof
Interstate Circuit v. United States Inferred agreement
F: Movie theatres conspired with distributors, no evidence of actual agreement to conspire
Inferred: Conspiracy may exist if there is no communication and no express agreement, provided that
there is a tacit agreement reached without communication.
Tacit agreement: not expressed, all knew others were being approach, the only reason would join is
the assumption that all others would join, cooperation is essential
Coleridge instructions: an agreement could be implied from acts in the absence of evidence that the
concurrence was accidental
United States v. Garcia (1998): An inference of an agreement is permissible only when the nature of the
acts would logically require coordination and planning – not violence
The Mens Rea of Conspiracy
• MPC§2.06(3), 5.03(1): requires purpose/intent for both conspiracy and accomplice liability
• Most states: require purpose/intent not just knowledge in conspiracy cases even when object crime is
a serious felony
Mistake of Law
• Minority: Powell Doctrine: in order for a conspiracy to be criminal it must be animated by a corrupt
motive or an intention to engage in conduct known to be wrongful (allows for mistake of law defense?)
• Modern: If ignorance of law is no defense with respect to the substantive offense, it is likewise no
defense to a conspiracy charge
Mistake of Fact to attendant circumstance:
• Facts that increase the gravity of the offense: proximity to a school in drug sale
• US v. Freed (1971): convicted of conspiracy to distribute unregistered grenades (did not know the
grenades were unregistered) – policy acquiring grenades is not innocent in itself
• Facts essential to criminality: age for statutory rape
Conspiracy to commit statutory rape if did not know the age?
• Some: mens rea for object crime govern for conspiracy charge  can convict for stat. rape
• MPC : ambiguous – leave to courts
• Accomplices: also usually left to courts
• English Criminal Law Act: not guilty of conspiracy if not aware of essential fact
People v. Lauria (CA 1967) Knowledge of Supplier equates to purpose
F: Δ operated answering service, knew some prostitutes used
Conspiracy | 71
Suppliers: Both the element of knowledge of the illegal use of the goods or services and the element of
intent to further that use must be present in order to make the supplier a participant in a criminal
conspiracy.
Intent to further the conspiracy must be derived from the sale itself and its surrounding
circumstances in order to establish the supplier’s express or tacit agreement to join the conspiracy.
When intent may be inferred from knowledge
1. when the purveyor of legal goods for illegal use has acquired a stake in the venture
2. when no legitimate use for the goods or services exists – dangerousness of product
3. when the volume of business with the buyer is grossly disproportionate to any legitimate demand
or when sales for illegal use amount to a high proportion of the seller’s total business
• Take into account seriousness of crime
○ States v. Falcone: not a participant for selling ingredients to moonshine
○ Direct Sales v. US: convicted of conspiracy for large quantity of drugs
Distinction: distributors of dangerous products require greater discrimination
Scope of Agreement: Single or Multiple Conspiracies
○ Prosecutors try to establish a single conspiracy
○ Δs attempt to breakup relationship into smaller conspiracies
Kotteakos v. United States (SCUSA 1946) ‘Spokes’ Conspiracy
F: Conspirators convicted of a credit and loan fraud conspiracy, no connection to each other except all
dealt with one central figure
Rule: Similar purpose of numerous separate adventures of like character can be separate Conspiracies
Need community of interest to form the wheel joining the spokes to make single conspiracy
Anderson v. Superior Court (CA 1947) Spokes with Wheel
F: Doctor had women refer women who wanted abortions to him. Δ convicted of conspiring to commit
abortions (including those of referred by others)
Knowledge of other woman referring abortions and still joined is enough for conviction
Argument: each of the spokes shared a common objective, since their continued employment
depended on the success of the illegal venture
[Rudovsky says this is wrong same as Kotteakos]
United States v. Bruno (1939) Chain Conspiracy
F: Δs convicted of conspiracy to import, sell and possess narcotics, Δs argue evidence proves a series of
three separate conspiracies (importing, selling and possessing) and not a single one as alleged in the
indictment
Interdependence of operations, knew they needed each other even without communication,  single
conspiracy
[Under MPC§5.03: different analysis
(1),(2) Each crime is separate and each individual actor has a different group of conspirators with
whom he agreed  culpability of each participant must tested separately
(3): unless a conspirator conspired to commit all the crimes as object of same agreement or
continuing conspiratorial relationship and the objective of that conspiracy or relationship could be
phrased in terms of the overall operation
Some conspirators could be liable for all crimes while others liable only for some]
Conspiracy | 72
United States v. Morris (1995): Competition in chain Conspiracy?
Argues for separate conspiracies since competition amongst suppliers  no interdependence
REJECTS: Common plan still the same
United States v. Torres-Ramirez: Sold drugs, which were sold in a different state
Knowing a conspiracy differs from joining a conspiracy – need proof intended to join not just knowledge
of existence
United States v. McDermott (2001) Unknown Third Party
F: Δ had an affair and told partner stock tips, partner told them to third party – Δ convicted of conspiracy
to commit insider trading
US v. Carpenter (1986) – use of information beyond the scope of the original agreement
Might be liable through conspiracy when:
1. scope of trading agreement broader to include trading outside the group of conspirators
2. trades reasonably foreseen as necessary or natural consequences of unlawful agreement
3. knew of third party relationship
[Note: potentially only for insider trading cases]
HERE: no proof of agreement between Δ and partner to pass insider information
Multiple Objectives
United States v. Braverman (1942) One Conspiracy for Multiple Crimes
Government broke up conspiracy into 7 separate conspiracies for each violation of IRS
Rule: Agreement to commit one OR more unlawful acts  cannot be separated just because the
objective is to violate several statutes/provisions
Albernaz v. United States (1981) Limits Braverman to provisions of same statute
Convicted of conspiracy to import and conspiracy to distribute marijuana
Congressional intent: two separate statutes with their own penalties, authorizes separate convictions
and punishments
Distinct from Braverman: violated multiple provisions of same statute
Conspiracy | 73
Justifications
United States v. Peterson (1973) Self-Defense
Self-defense: law of necessity
1. must be a threat, actual or apparent, of the use of deadly force against the defender
2. the threat must be unlawful and immediate
3. the defender must have believed that he was in imminent peril of death or serious bodily harm
and his response was necessary to save himself
Honestly believe and must be objectively reasonable in light of the surrounding circumstances
Reasonable Person Standard
• Qualified/Modified Objective Standard:
Model Penal Code (§2.02): “involves a gross deviation from the standard of conduct that a law-abiding
person would observe in the actor's situation.”
• Honest but objectively unreasonable belief in use of self-defense:
• Majority: convicted of murder
• Minority: Mitigation
○ Imperfect self-defense: classifies the crime as voluntary manslaughter, on the theory that
"malice" is lacking and that the lesser culpability in a killing of this sort is similar to that in a killing in a
heat of passion.
○ Involuntary manslaughter: matches culpability even though killing was intentional
○ MPC: a person who kills in the honest but unreasonable belief in the need to kill would be guilty
of negligent homicide, two requirements:
§3.04(1): subjective – use of force for self protection “is justifiable when the actor believes that
such force is immediately necessary”
§3.09(2): mistaken beliefs cannot be used to establish justification
People v. Goetz (1986) Reasonable Belief – Modified Objective Standard
F: Subway incident, Goetz shoots and kills 4 black youths
Law: NY Penal Law §35.15:
Section (2) principles for use of deadly force:
a) he reasonably believes that such other person is using or about to use deadly force
b) he reasonably believes that such other person is committing or attempting to commit a
kidnapping, forcible rape, forcible sodomy or robbery.
Subjective: “he reasonably believes”
Objective: use of “reasonably”
Intent of legislature: objective standard – reasonableness must be based on circumstances facing a Δ or
his situation, ‘modified’ (knowledge of other person, physical attributes, prior experiences of Δ that
provide a reasonable basis for belief about other person’s intentions in the circumstances)
Imminence of Threat
• MPC: relaxes standard from imminent to immediately necessary
• Some states use similiary statutory language
• Some courts have interpreted imminence loosely
State v. Janes (WA 1993): threat can support self-defense if reasonable belief it will be carried out. ○
○ Especially in abusive relationships, threat even days before can signal beginning of abusive episode
Justification | 74
• State v. Schroeder (NE 1978): threats of violence are not imminent threats  no jury instruction
• Ha v. State (AK 1995): inevitable harm is not the same as imminent harm
• Jahnke v. State: battered person syndrome for self-defense - can’t justify that the victim of abuse is
allowed to kill the abuser
Limits on use of deadly force
• State v. Clay: cannot use deadly force if the assault does not give reasonable apprehension of death or
bodily harm
• Motive: MPC & CL – necessary condition for claiming self-defense is that the Δ actually believed in the
necessity to use defensive force
Risk of injury to others
• People v. Adams (Ill 1972): while using self-defense bullet passed through assailant, killed bystander
Not guilty of manslaughter – did not react carelessly
• Commonwealth v. Fowlin (PA 1998): shot in self-defense in night club
If Δ meets requirements of self-defense he cannot be deemed reckless
Dissent, jury question
• MPC§3.09(3): Δ could be convicted of reckless endangerment or homicide
Burden of Proof
• Majority: place burden on prosecution to disprove self-defense beyond a reasonable doubt once the
issue is raised by the evidence
• Minority (OH): requires Δ to prove self-defense by preponderance of the evidence – constitutional
Third Party comes to aid
• Majority: Someone who comes to the aid of a person in peril can use deadly force to prevent the
attack under the same circumstances that would justify the use of deadly force by the endangered
person herself
• MPC § 3.05. Use of Force for the Protection of Other Persons.
Exceptions to the right of self-defense
Retreat
• Tradition view: imposed a strict duty of retreat before use of deadly force
• Modern: Majority adopt a ‘true man’ or no-retreat rule
Reason:
○ Historical: do not want the law to require cowardice
○ Modern: hard for juries to determine whether Δ knew he could retreat with complete safety
○ Tendency to favor a retreat requirement in settings outside the home
• Some require retreat when possible
• Others possibility of retreat as a factor to be considered in judging necessity
• MPC §3.04(2)(b)(ii): deadly force not justifiable if actor knows he can avoid the necessity of using such
force with complete safety by retreating
• Statutes:
○ 15 states abolish retreat requirement through legislation
○ Castle Exception: Jurisdictions requiring retreat, have an exception for home
○ No duty to retreat in the sanctity of your home
○ Attacker is co-occupant: majority: can kill rather than retreat
Justification | 75
○ MPC§3.04(2)(b)(ii)(1): endorses - deadly force not justifiable if actor knows he can avoid the
necessity of using such force with complete safety by retreating
One policy concern: adverse affect on victims of domestic violence by forcing to retreat
State v. Abbott (NJ 1961) Retreat
F: Neighbor conflict over a driveway, fight ensued, knife and hatchet
Rule: No absolute right for a man to stand his ground and kill in any and all situations
Not nature of force defended against but nature of force accused employed in his defense.
IF does not resort to deadly force: may hold his ground whether the attack is deadly or not
Although can retreat still has a right to hold his ground
Question retreat arises if intent to use deadly force
Knew of retreat: must considered the totality of circumstances including the attendant excitement
United States v. Peterson (1973) Cannot Be Initial Aggressor
F: Altercation between Δ and victim over attempt to steel windshield wipers, Δ escalated the situation
and then killed victim
Rule: right to use deadly force in self defense is not available to one who provokes a conflict or is an
aggressor
cannot claim self defense by a self generated necessity to kill
EXCEPTION: when communicates intent to withdraw to adversary and in good faith attempts to
withdraw, his right to self-defense is restored
Traditional Common Law approach: Peterson and Allen
Model Penal Code §3.04: Initial aggressor does not waive right to self defense, depending on
circumstances
Nonlethal aggressor: initial aggression is nonlethal/minor
• Minority: nonlethal aggressor can retain his right to self-defense if he is met by excessive, life
threatening response, provided that he then exhaust every reasonable means to escape such danger
other than the use of deadly force.
• Majority: deny right of self defense, self-defense only available to a person ‘free from fault’
Even when met with grossly excessive response
 must retreat, be killed or fight unlawfully
Re-initiating an encounter
Allen v. State (OK 1994): roommate quarrel, rake incident
No self defense if a person re-initiates an encounter even without the intention to provoke an argument
“Free from fault” requirement
• Fault is adultery: partner attacks with deadly force
Dabney v. State (1897): could NOT defend himself with deadly force
Atkins v. State (1986): can defend himself with deadly force
• Some courts: Strict Requirement commission of any crime causally related to the fatal result will
forfeit the privilege of self-defense, even when the crime itself does not provoke the victim’s
threatening conduct
Mayes v. State (ID 2001): illegal hand gun possession when self-defending against wife
Could not use self-defense even though no immediate causal connection
Justification | 76
Battered Women Syndrome
• Expert testimony on battered woman is scientifically sufficiently reliable to allow it go to juries
• Admissibility is overwhelming accepted by courts and legislatures, some statutorily
○ Many courts that allow also allow for battered or abused child who kills abusive parent
Effects of Expert Testimony on Reasonableness Standard
• Majority: syndrome evidence is relevant to reasonableness but only in a limited way.
○ Enables juries to overcome stereotypes impressions about women who remain in abusive
relationships
○ Jury must consider the Δ’s situation and knowledge in determining whether a reasonable person,
not a reasonable battered woman, would believe in the need to kill to prevent imminent harm.
• Minority: more subjective standard – if jury believes Δ suffered from battered woman syndrome it
must decide whether a reasonable person who is suffering from battered woman syndrome would have
perceived and reacted in view of the prolonged history of physical abuse
• Even Minority: Close to full subjective: “assume the physical and psychological properties peculiar to
the accused”
Battered woman hires or persuades 3rd party to kill
• ALL cases have ruled the woman’s claim of self-defense untenable
• Defense of another:
Majority rule: someone who comes to the aid of a person in peril can use deadly force to prevent the
attack, under the same circumstances that would justify the use of deadly force by the endangered
person herself [MPC§3.05].
State v. Kelly (NJ 1984) Expert Testimony
F: Stormy marriage, periodic beatings, after one beating husband was running towards Δ and she
thought he was going to kill her so she stabbed him with scissors
Evidence Rule 56(2) admission of expert testimony
1. subject matter beyond the ken of the average juror
2. field is state of the art so testimony is reliable
3. witness must have sufficient expertise:
Expert testimony on battered women’s syndrome is admissible to help the jury understand why the
woman did not leave (credibility issue), which aids in the jury’s evaluation of the objective
reasonableness and honesty of the woman’s fear of serious bodily injury or death under the
circumstances – no saying subjective evaluation
Nonconfrontational Self-Defense: Imminence of Threat Under BWS
State v. Norman (NC 1989)
F: Badly abused for 25 years, tried to kill herself, show and killed her husband while he was sleeping
Rule: Court accepts that inevitably husband will cause Δ serious harm but no imminent threat
Court will not expand temporal element of self-defense  no self-defense instruction
Dissent: next attack is always imminent and could be fatal  imminent threat even while sleeping
[Same as]
Commonwealth v. Sands (VA 2001) p. 768
F: Badly abused, threatened by husband to be killed, Δ kills husband while he is lying in bed watching TV
Rule: Reasonable belief of serious bodily harm but no immediate threat at time of shooting
Justification | 77
No self-defense instruction
Contrast
Robinson v. State: cites Norman dissent, torture appears interminable and escape impossible, the belief
that death of batterer can provide relief may be reasonable in the mind of a person of ordinary fitness
 allow self-defense instructions
Protection of Property and Law Enforcement
Statutory Approaches
• Broader than the doctrine of self defense: distinction can use more force when in the home
○ CA: home protection bill of rights: right to use deadly force against an unlawful or forcibly entered
person since there is a reasonable fear of imminent peril or great bodily harm
○ CO: Make my day: absolute right to safety in home, unlawful entry, reasonable belief crime will be
committed, immune from criminal prosecution
○ FL: stand your ground: expands to vehicles, do not have to believe person will commit a crime
• MPC§3.06(3)(d): strictly limits use of deadly force against an intruder in the home
§3.06(3)(d)(ii)(2): permits deadly force when use other than deadly force to prevent a crime would
expose actor to substantial danger
People v. Ceballos (CA 1974) Trap Gun
F: Trap gun in garage to prevent burglary (felony), convicted of assault with a deadly weapon
Law: Penal Code §197: “Homicide is justifiable …2. When committed in defense of habitation, property,
or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony
US courts have concluded setting up a deadly trap can make a person criminally liable, BUT the
exception to the rule is if the intrusion was such that the person where he present would be justified in
taking the life or inflicting bodily harm with his own hands.
People v. Jones: § 197 should be limited to felonies that are atrocious crimes attempted to be
committed by force – must reasonable create a fear of great bodily harm otherwise no cause for the
exaction of a human life
HERE: not applicable conviction affirmed
Defense of Other types of Property
• Sydnor v. State (MD 2001): robbed at gun point of$30, shot robber while he was fleeing, convicted of
voluntary manslaughter
Whether deadly force is then and there necessary to avoid imminent danger of death or seriously bodily
harm to the victim of the offense
Dissent: in the act of fleeing still part of the robbery – prevent consummation of crime justifies use
regardless if you are in danger [MPC §3.06(3)(d)(ii)
Officer Use of Force
MPC: §3.02(2):
(b) The use of deadly force is not justifiable under this Section unless:
(i) the arrest is for a felony [same as CL]; and
(ii) the person effecting the arrest is authorized to act as a peace officer or is assisting a person whom
he believes to be authorized to act as a peace officer [not a CL qualification]; and
(iii) the actor believes that the force employed creates no substantial risk of injury to innocent
persons [not in CL]; and
Justification | 78
(iv) the actor believes that [based on principle that the character of the offender as it can be inferred
from the available information, rather than the offense]:
(A) the crime for which the arrest is made involved conduct including the use or threatened use
of deadly force; or
(B) there is a substantial risk that the person to be arrested will cause death or serious bodily
injury if his apprehension is delayed.
[judgment that use of deadly force should be sanctioned in cases where the offender is
thought to pose such a danger to life or limb that his immediate apprehension overrides competing
considerations]
Deadly Force:
MPC§3.11(2): "deadly force" means force that the actor uses with the purpose of causing or that he
knows to create a substantial risk of causing death or serious bodily injury. Purposely firing a firearm in
the direction of another person or at a vehicle in which another person is believed to be constitutes
deadly force. A threat to cause death or serious bodily injury, by the production of a weapon or
otherwise, so long as the actor's purpose is limited to creating an apprehension that he will use deadly
force if necessary, does not constitute deadly force.
Overall Standard is unclear  most Police departments are usually more restrictive, cannot use deadly
force to arrest
Durham v. State (ID 1927)
F: Δ(cop) convicted of assault and battery. Cop tried to arrest Long for illegal fishing and Long resisted
and then Δ shot him in the arm
That if the defendant physically resists, the officer need not retreat, but may press forward and repel the
resistance with such force, short of taking life, as is necessary to effect the arrest; and if in so doing, the
officer is absolutely obliged to seriously wound or take the life of the accused, in order to prevent the
accused from seriously wounding or killing him, he will be justified.
Court REJECTS the rule since it prevented the state from using extreme force when extreme resistance is
used against
Tennessee v. Garner (SCUSA 1985) Use of deadly force to prevent escape
F: called to house for suspected robbery. Officer went around back and saw decedent trying to escape,
officer was convinced if he made it over the fence he would escape so he fired at him hitting him in the
back of the head.
Common law rule of allowing use of whatever force necessary – outdated
TE: statute allows use of all necessary means to effect arrest if after notice person flees or forcible
resists - not constitutionally (14th) unreasonable to prevent escape if the officer believes suspect poses a
serious threat to others
Rule: deadly force cannot be used unless necessary to prevent the escape AND officer has probable cause
to believe that the suspect poses a significant threat of death or serious injury to others
Justification | 79
Necessity
Choice of Lesser Evil – The Residual Principle of Justification
Defense of necessity: committing an offense is justifiable if accused was without blame in occasioning or
developing the situation and reasonably believed such conduct was necessary to avoid a public or
private injury greater than the injury which might reasonably result from his own conduct.
To invoke necessity defense must show that: Conjunctive test
1. they were faced with a choice of evils and chose the lesser evil
2. they acted to prevent imminent harm
3. they reasonably anticipated a direct causal relationship between their conduct and the harm to be
averted
4. they had no legal alternatives to violating the law
Prison Escape Defense:
MPC §3.02 Comment @ 12 n.5: “The harm sought to be prevented by the law defining the offense may
be viewed broadly. . . . a court could consider whether recognition of the offense when a prisoner has
escapted to avoid assault would have the effect of substantially encouraging unjustified escapes.”
People v. Unger (IL 1977) Lovecamp Conditions
F: Δ walked off prison because he threatened with sexual assault and death
Rule: Lovercamp conditions for justified prison escape:
1. prisoner is faced with specific threat of death, sexual attack or substantial bodily harm in the
immediate future
2. no time for complaint to authorities or exists history of futile complaints
3. no time or opportunity to resort to courts
4. no evidence of force or violence used towards prison personnel or other innocent persons in the
escape
5. prisoner immediately reports to the proper authorities when he has attained a position of safety
from immediate threat
Absence of one or more elements listed in Lovercamp would not necessarily mandate a finding that the Δ
could not assert the defense of necessity
[Contrast] United States v. Bailey (1980): prerequisite for invoking necessity defense in prison escape
case is that the Δ make a bonafide effort to surrender or return as soon as the duress or necessity had
lost its coercive force (Lovercamp #5)
Borough of Southwark v. Williams (1971) Homeless
Rejects necessity justification for homeless squatters, too easy for everyone to say they are in need
Commonwealth v. Leno (MA 1993) Needle exchange
distribution of needles to prevent the spreading of aids.
Δs did not show threat was clear and imminent, threat was debatable and speculative
Legislature: set up needle distribution centers  expressly considered (balanced evils) and made it a
crime – no necessity defense
Commonwealth v. Hutchins (MA 1991) Medical Uses of Marijuana
Δ argues that growing marijuana was a necessity since it helped his sclerosis go into remission.
Reason: Δs medical reasoning does not outweigh potential harm to public if he were not punished
Necessity | 80
Current State:
○ Courts divided on permitting necessity defense
○ Several states have statutory exceptions
○ CA has statute allowing exception for  they have weighed the evils
○ Issues of preemption: federal statute still outlaws
Supreme court: federal government can still prosecute
MPC §3.02
Cannot be believe that illegal behavior may possibly ameliorate certain evils, he must believe it is
“necessary” to avoid the evils
(1)(a) evil sought to be avoided be greater than that which would be caused by the comssion of the
offense, not that the Δ believed it to be so
United States v. Schoon (1992) Civil Disobedience
F: Stormed IRS office and splattered blood in order to protest further bloodshed in El Salvador
Civil disobedience: willful violation of a law undertaken for the purpose of social or political protest
Indirect civil disobedience: involves violating a law or interfering with a government policy that is not
itself the object of protest
Direct CO: involves protesting the existence of a law by breaking that law or by preventing the execution
of that law in a specific instance in which a particularized harm would otherwise follow
Necessity defense: utilitarian, maximizing social welfare by allowing a crime to be committed where the
social benefits of the crime outweigh the social costs of failing to commit the crime
In some sense, necessity defense allows us to act as individual legislatures when a real legislature
would formally do the same under those circumstances.
“If the legislature had thought of the scenario that happened they would have made it legal.”
Indirect can NEVER meet conjunctive test
Necessity Defense Can NEVER be used to justify killing to save someone
Regina v. Dudley p. 809 Cannibalism
State v. Holmes (PA 1842) rescue boat, first mate order unmarried passengers thrown overboard
Two men, only 1 can survive: Neither bound to save other’s life by sacrificing own nor would either
commit a crime in saving his own life
Cardozo: no law of human jettison, no right to save lives of some by killing of another
Rely on people to sacrifice themselves, if not leave it to chance
Maximizing Lives Principle:
• Under MPC: justifies the intentional killing of an innocent person who is not an aggressor
• Situation where there is a net savings of lives, each individual life must be taken in such a case to be of
equal value
• Maximizing lives principle does not apply where a person is being threatened by attackers or multiple
attackers
Maximizing lives principle yields to self defense justification
§3.11(1): can be innocent attackers – even when they have a defense of absence of intent, negligence or
mental capacity, or a defense of duress or youth, the victim is permitted to kill them if necessary to save
his life
Necessity | 81
Public Committee Against Torture v. State of Israel (1999) Torture
Nature of necessity defense does not allow it to serve as source of general administrative power 
cannot establish permanent directives setting out the physical interrogation means that may be used
under conditions of necessity
BUT necessity exception will likely arise in instances of ticking time bombs - credible and immediate
Leave to individuals to determine but cannot train them
Bybee Memorandum
• Allows for necessity defense in cases of severe physical and psychological coercion
Set a high threshold of pain that would constitute torture but either way necessity defense still
available
• Not limited to ticking time bomb: two factors:
1. more certain that a gov’t officials are that a particular individual has information needed to
prevent an attack the more necessary interrogation will be
2. more likely it appear to be that a terrorist attack is likely to occur, and the greater amount of
damage expected from such an attack the more than an interrogation to get information would become
necessary
• Congress has spoken, 18 U.S.C. §2340(1): “an act committed by a person acting under the color of law
specifically intended to sever physical or mental pain or suffering upon a person within his custody or
physical control”
Necessity | 82
EXCUSES
Principles of Excuse
• Excuse: Δ is judged to be not morally blameworthy for his conduct even though the conduct itself is
○ Rationale: Situations in which conduct is nondeterrable
Three categories:
1. Involuntary actions: acts/bodily movements that are not willed by the actor – reflex, convulsions
2. Cognitive impairments or deficiencies: actor’s ability to know certain things
○ Concerned with the actor’s knowledge of the nature of his conduct and whether it is right or
wrong, and legal or illegal
3. Volitional impairments or deficiencies: actor’s ability to make unencumbered choices or to
meaningfully control his behavior
○ Concerned with an impairment of the actor’s will
○ Voluntary actor because his behavior is a product of his effort or determination and may be fully
aware of the nature of his conduct
Duress
• Defense of Duress: only applicable where there is allegation that an act was committed in response to
a threat of present, imminent and impending death or serious bodily harm - coercion
○ Not excuse for killing of an innocent but other serious offenses
○ Threatened person does not have to be the accused – near relative
○ Threat must induce “such a fear as a man of ordinary fortitude and courage might justly yield to”
Must be threat of either death or serious bodily injury – concerns of fraud otherwise
○ Must be imminent – future harm there is a duty to escape or seek help from authorities
Scope of Defense of Duress
• Duress as defense to murder
○ Most courts/statues exclude defense
○ MPC allows duress as defense to murder
• Duress as a defense to felony murder: courts divided, some have exception
• Duress and atrocity: not allowed as a defense in mass execution during war tribunal
• Contributory fault: Δ placed himself in the position/situation that leads to duress
○ Common Law: if join a gang cannot use duress
Except: if Δ thought he could withdraw and if duress situation materializes unexpectedly
○ MPC §2.09(2): withdraws the defense where the Δ “recklessly placed himself in a situation in which
it is probable that he would be subject to duress.”
Nature of Threat:
• Common Law: death or seriously bodily harm
• MPC: unlawful force against the person, NOT property
Imminence of threat:
• MPC & Toscano: treat imminence as one factor to be weighed by jury in determining whether the Δ’s
conduct was that of a person of reasonable firmness in his situation
• Majority Common Law: treat imminence as an absolute prerequisite to the availability of the duress
defense
○ Some require threat be “instant” death
Inducement: that would overcome the resistance of a person of ordinary fitness
Excuse | 83
• NOT a defense
• Exception: Cases of entrapment
Rationale: Δ’s lack of predisposition to offend is overcome by governmental inducement
Policy: prevent government from overreaching, not because the Δ is less culpable
Objective Standard Notes:
• Mental Ability:
US v. Johnson (2005): low IQ, should not modify reasonable person
Commonwealth v. DeMarco (PA 2002): Δ’s situation also means level of mental ability
English: standard should be more expansive – immaturity, timidity etc
Zelenak v. Commonwealth (VA 1996): allowed evidence of multiple personality disorder
• Battered Woman Syndrome:
○ Unlike a claim of self-defense (uniformly admitted) there is a split for admitting BWS evidence for a
claim of duress
○ When admissible the evidence is relevant to all elements of defense of duress
NJ: not to allow for “reasonable firmness” determination but whether the Δ had recklessly placed
herself in a situation susceptible to duress
Model Penal Code Approach
• Duress defined purely as an excuse [§2.09]
○ Δ acted under a threat a person of reasonable firmness would have been unable to resist
○ It is NOT required that he chose the lesser evil
○ If it is the lesser evil then MPC permits the justification defense as well
• Source of Peril: MUST be the do-it-or else command of another person, not some other source
○ [Justification defense allowed regardless of source of peril]
MPC § 2.09. Duress.
(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. [The presumption that a woman acting in the
presence of her husband is coerced is abolished.]
(4) When the conduct of the actor would otherwise be justifiable under Section 3.02, this Section does
not preclude such defense.
MPC §3.02: provides general defense in cases where the actor believed his conduct necessary to avoid
an evil to himself or to another and the evils sought to be avoided is greater than that sought to be
prevented by the law defining the offenses charged - does not matter if source of evil is actions of
another person or forces of the physical world
Concerns:
○Do not want to rest liability on individual fortitude
 NOT a defense if the actor lacked fortitude to make the moral choice
○ Defense WHEN the actor was coerced by force or threats of force “that a person of reasonable
firmness in his situation would have been unable to resists”
○ Modified Objective Standard: account for actor’s situation- tangible factors like size, strength, age
or health NOT his temperament
Excuse | 84
Common Law Approach
State v. Toscano (NJ 1977)
F: Δ convicted of conspiracy to commit insurance fraud by helping people make fake claims
Common Law: Defense of Duress: only applicable where there is allegation that an act was committed in
response to a threat of present, imminent and impending death or serious bodily harm
Not excuse for killing of an innocent but other serious offenses
Threatened person does not have to be the accused – near relative
Threat must induce “such a fear as a man of ordinary fortitude and courage might justly yield to”
Must be either death or serious bodily injury – concerns of fraud otherwise
Must be imminent – future harm there is a duty to escape or seek help from authorities
Duress shall be a defense to a crime other than murder
United States v. Fleming (1957)
F: feared that if he did not help in developing anti-US propaganda he would be subject to a march north
or into a cave which would eventually result in his death
Death was not certain, more problematical and remote - Resistance must bring you to the last ditch
United States v. Contento-Pachon (1984)
F: forced into swallowing cocaine balloons due to threats to his family, thought he was watched and
police were corrupt
Immediacy and inescapability were triable issues of fact
Regina v. Ruzic (1998)
Transported 2 kilos from Yugoslavia to Toronto, threats to her mother
Did not instruct on immediacy, threats had to be made against the Δ, and made by person present when
offense was committed
But was not overturned because of §7 of Canadian Charter of Rights and Freedoms – “Everyone has the
right to life, liberty, and security of the person, and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.”
Innocent - her actions were in effect involuntary because she had no realistic choice but to comply
Necessity and Duress Compared
• Necessity defense: rests on the rationale of justification
“Lesser of two evils” [MPC§3.02]
• Duress defense: rests on the rationale of excuse
Not right to violate the law but because the circumstances were so urgent and compelling otherwise
law-abiding people might well have done the same in the circumstances [spirit of MPC Duress Defense]
• Can possibly have defense of duress AND necessity if violation is lesser evil
Duress as a species of Justification:
• NY: defense of justification requires choice be made in emergency situation
• LaFave: Duress require not only imminent threat of harm but also violation is lesser of evil
Under these systems duress and necessity BOTH are justification defenses
Only a do it or else command of another can establish a defense of duress
• Significance placed in the Source of Peril:
○ Duress: “do it or else” command of another person
○ Necessity: anything else may allow defense of necessity
Problem: preclude the possibility that duress can excuse conduct that is harmful on balance and
therefore not justifiable
Excuse | 85
Intoxication
Voluntary Intoxication
Traditional Views:
• Voluntary intoxication can be used as a defense against specific intent crimes - Hood
• Stasio Rule: Evidence of intoxication is inadmissible even when logically relevant
• Exceptions: intoxication should still be allowed for premeditation and deliberation
○Also when Δ is blacked out and  technically not participated in a robbery
Under some circumstances to demonstrate mistake
Policy Reasons: defense would be abused, undermining intent of law
• Can consider intoxication as mitigating circumstance when sentencing a defendant
• Majority (2/3): follow Hood
○ Require high degree of intoxication – “dead drunk”
○ Common law rule allows for voluntary intoxication defense only when it produces a permanent
condition sufficient to meet test for legal insanity
○ Some restrict Hood only to first degree murder cases
• Minority: follow Stasio
○ Some bar use of intoxication evidence on all mens rea issues
People v. Hood (CA 1969) Specific vs. General Intent (Hood)
F: Δ got drunk and while he was getting arrested, seized an officer’s gun and shot him in the legs,
convicted of assault with a deadly weapon.
Two competing theories (Hood):
a. Intoxicated person is morally less culpable than a sober person
b. person who voluntarily gets drunk should not be able to escape consequences of his acts
Distinction between specific and general intent crimes: Alcohol: allows people to do simple tasks but
impairs ability to exercise judgment and realize consequences of acts
General: definition of a crime consists of only the description of a particular act, without reference to
intent (can be just reckless) to do a further act or achieve a future consequence; if the Δ intended to do
the proscribed act, he has general intent
Specific: definition of a crime refers to the Δ’s intent to do some further act or achieve some
additional consequence
Burden: Must show Δ was so intoxicated that he did not have the intent to commit an offense - rare
Difference between assault (general) and assault with purpose to of raping or killing (specific)
State v. Stasio (NJ 1979) Limits on Hood
F: Δ convicted of assault with intent to rob, specific intent crime but NOT allowed to admit evidence of
voluntary intoxication
Should not be concerned with logical consistency of culpability but with protecting society from
dangerous behavior – intoxication should evidence NOT admissible to negate specific or general intent
Dissent: intentional wrongdoer greater threat than one who does same conduct without evil design
Montana v. Egelhoss (1996) Right to Due Process
F: Δ convicted of deliberate homicid
Law: killing committed for purposefully or knowingly but intoxication cannot be taken into consideration
SCUSA: Constitutional - Differing reasons:
Intoxication | 86
Evidentiary rule: some evidentiary rules make easier for prosecution to meet burden, same here
Ginsburg: statute makes two distinct types of murder, one sober, one drunk
Statutory Developments:
• CA legislation (1995): intoxication only admissible solely for issue of whether Δ formed the required
specific intent
○ Murder Case: issues of P&D and express malice but not issue of implied malice (“depraved heart”
recklessness, previously allowed)
• NJ legislation: intoxication evidence can only be considered in determining purpose or knowledge but
not in determining recklessness or negligence
Model Penal Code Approach
MPC § 2.08. Intoxication.
(1) Except as provided in Subsection (4) of this Section, intoxication of the actor is not a defense unless
it negatives an element of the offense.
(2) When recklessness establishes an element of the offense, if the actor, due to self-induced
intoxication, is unaware of a risk of which he would have been aware had he been sober, such
unawareness is immaterial. [defense not allowed when mens rea is recklessness (getting drunk is
reckless), and possibly negligence]
(3) Intoxication does not, in itself, constitute mental disease within the meaning of Section 4.01. [no
insanity defense]
(4) Intoxication that (a) is 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 [wrongfulness] or to conform his conduct to the requirements of law.
Involuntary Intoxication
• Common Law: allows Δ to assert temporary legal insanity if involuntarily intoxicated
But must be impaired to degree to meet legal insanity
○ Number of jurisdictions in US: allow defense for involuntary intoxication for more cases than
voluntary intoxication – substances other than alcohol and illegal drugs
○ In PA: defense limited to specific intent crimes
• Involuntary intoxication a more complete defense than insanity
Intoxicated not committed to human services
Regina v. Kingston (1993) Majority Approach
F: Penn tried to blackmail Δ, drugged and videotape the Δ sexually abusing a 15 year old boy.
Rationale for complete defense:
○ If the Δ would not have committed the act without intervention of third party it serves no purpose to
punish him.
Involuntary intoxication negates mens rea
• Counter argument (House of Lords):
Drug did not create desire but enabled its release: case of DISINHIBITION, still has intent
Defense is difficult to justify since it implies:
1. can be applied to all offences
2. complete answer to criminal charge, no room to punish for lesser charge, Δ entirely free from
culpability
5. subjective nature - since it must be determined whether Δ’s inhibition were overcome by drug
○ Would need to know personality of Δ and pharmacology of the drug - burdensome
• Concerns: Easy for Δs to fake
Intoxication | 87
Mental Disorder
The Defense of Legal Insanity
Basis for excuses such as duress is that the actor has shown herself no different from the rest of us, the
basis for the insanity excuse is that she has shown herself very different from the rest of us
Concerns:
• Difficult to prove – easier?
○ Experts are expensive  limited to wealthy
• Hindsight: many missed opportunities to prevent the resulting deaths
 unjust to hold them responsible for failures of those around them
• Juries: no exposure to mental disease may be unable to put themselves in insane’s shoes
Terminology: interplay between legal and medical communities
○ Mental illness: medical term
○ Insanity: legal term, when mental state precludes a finding of criminal responsibility
 can be mentally insane but still get convicted
○ Incompetence: legal term that refers to person’s mental state at time of legal proceeding
Competency Issues – ability to stand for trial
MPC § 4.04. Mental Disease or Defect Excluding Fitness to Proceed.
No person who as a result of mental disease or defect lacks capacity to understand the proceedings
against him or to assist in his own defense shall be tried, convicted or sentenced for the commission of
an offense so long as such incapacity endures.
• Dusky v. US (1960): “test must be whether Δ has sufficient present ability to consult with his lawyer
with a reasonable degree of rational understanding and whether he has a rational as well as factual
understanding of proceedings against him.”
• Sell v. US (2003): Supreme court held not unconstitutional to force medication solely to induce trial
competence in certain circumstances – must balance gov’t interests and rights of the accused because
of constitutional right to refuse treatment
• Amnesia: Δ suffers from total memory loss concerning the alleged crime
Majority: Can stand trial if in full command of her faculties
BUT if Δ might be able to recover it is improper - State v. McClendon (AZ 1966)
Raising the insanity defense:
• Majority: Up to Δ to raise insanity defense
○ Some may prefer to just plead guilty – insanity may be longer confinement, treatment, stigma
○ May decline even if against advice of his attorney – Commonwealth v. Federici (MA 1998)
• Minority (English): Prosecutors have a duty to raise it rather than allow a dangerous person to be at
large
○ Prosecutors can agree to civil commitment and drop charges
○ Frequency and success rate of insanity pleas are often overestimated
RARE to go to trial on insanity and even rarer to get acquittal
Result of Insanity Acquittal:
Civil Commitment:
• Discretionary Approach
Mental Disorder | 88
○ Discretion of the judge to commit
○ Insanity acquittees must comply with procedural and substantive standards for any mentally
disturbed person in the community
○ Constitutional Restriction: mental illness and dangerousness must be proven by clear and
convincing evidence (Addington v. Texas (1979)
○ States commitment procedures: crucial factual findings, mental illness, and dangerousness can be
made my preponderance of the evidence
• Mandatory approach:
○ Commitment is automatic and mandatory for all insanity acquittees
Rationale: protects public and makes defense more acceptable to public and juries [MPC§4.08
Cmnt]
Jones v. US (SCUSA 1983): upheld constitutionality of mandatory commitment
○ Presumption: insanity and dangerousness continue after trial
○ Commitment can be indefinite and exceed maximum sentence of underlying offense
• Duration of Confinement:
○ Regular civil commitment statutes: may release the patient when medical facility is satisfied he has
recovered and no longer danger to himself or others
○ Provision for commitment of insanity acquittees: requires that finding be made by a judge usually with
burden on inmate to prove he meets conditions for release
 can be held indefinitely: could be longer than maximum sentence authorized for underlying defense
○ Exceptions: some states (~12) require release at maximum term for offense UNLESS state can meet
ordinary criteria for civil commitment by clear and convincing evidence that inmate continues to be
mentally ill and a danger to others
• Guilty but mentally ill (~12 states, PA): Third option for jury
Statute authorization: allows courts to retain sentencing authority in cases of guilty verdicts for
underlying offense BUT requires that Δ be given treatment
Rationale: concern for public safety after acquittee’s release
• Execution:
Ford v. Wainwright (1986): 8th amendment (cruel and unusual) bars execution of insane
But did not give reason why OR what defines insane – societal consensus
Powell: do not execute those “who do not have the mental capacity to understand the nature of
death penalty and why it was imposed”
○ Majority: define insanity for purposes of execution similar to Powell in Ford
○ Minority: also must have ability to communicate rationally with defense counsel
At least 1: State v. Perry (LA 1992): cannot give medication in order to execute
Atkins v. Virginia (SCUSA 2002): 8th Amendment forbids execution of person with mental retardation
even though they are not insane
Instructing the jury on the consequences of an insanity acquittal:
• Majority: juries should not be informed to procedures that follow an insanity verdict
Rationale: result of acquittal has no relevance to whether Δ meets test of legal insanity (People v.
Goad (MI 1984)
• Federal: Shannon v. US: Supreme Court held juries not informed of mandatory commitment applicable
under federal law juries should not be informed of mandatory commitment provisions of federal law
Rationale: Division of labor between judge (sentencer) and juror (fact finder)
• Minority: when commitment is mandatory jury should be informed that Δ will not be released until
she is no longer mentally ill and dangerous – Commonwealth v. Mutina (MA 1975)
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Burden of Proof: Presumption of legal sanity at trial
Two issues:
1. how much evidence before presumption disappears and Δ’s insanity becomes an issue that must
be established by evidence
○ “some evidence” of legal insanity - People v. Hill (CO 1997)
○ Evidence raises a reasonable doubt about sanity - Jamezic v. State (AL 1996)
2. Where issue must be established by evidence who bears burden of persuasion
Minority: prosecution prove sanity beyond a reasonable doubt
Majority (inc(After Hinckley): inc. federal place burden of proof of insanity on defense
18 U.S.C. §17(b): by clear and convincing evidence
Competing Formulations
Common Law Approach
M’Naghten’s Case (1843) M’Naghten Test
F: M’Naghten mistakenly killed victim thinking he was the Prime Minister. Acquitted on insanity defense
M’Naghten Rule:
“To establish a defense on the ground of insanity, it must be clearly proved that, at the time of
committing of the act, the party accused was laboring under such a defect of reason, from disease of the
mind, as not to know the nature and quality of the act he was doing; OR if he did know it, that he did not
know he was doing what was wrong.”
The King v. Porter (1993) Rationale Of M’Naghten
Prime purpose of criminal law is deterrence.
Useless to threaten punishment to deter if their mental condition is such that they cannot be in the least
influenced by the possibility and probability of subsequent punishment; if they cannot understand what
they are doing or cannot understand the ground upon which the law proceeds.
Two concepts:
1. Condition of the mind at the time the act was committed – knowledge of wrongfulness
2. State of mind must have been one of disease, disorder, or disturbance
United States v. Lyons (5th Cir. 1984) Post Hinckley Reaction (1982)
F: Δ indicted on 12 counts of knowingly and intentionally securing narcotics, claims drug addiction
affected his brain  lacked substantial capacity to conform his conduct to the requirements of the law
Volitional prong of “lack of capacity to conform one’s conduct to the requirements of law” no longer
good science
New Test: “a person is not responsible for criminal conduct on the grounds of insanity only if at the time
of that conduct as a result of a mental disease or defect, he is unable to appreciate the wrongfulness of
that conduct.”
Rationale: volitional defects exists but concerned with fraud, difficult to prove/measure
Model Penal Code Approach
MPC § 4.01. Mental Disease or Defect Excluding Responsibility.
(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 [not complete impairment of M’Naghten, cognitive
prong: on one plane you may know it is wrong, some abstract notion, but does not register, does NOT
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have to be full impairment] either to appreciate the criminality [wrongfulness] of his conduct or to
conform his conduct to the requirements of law [volitional prong – disease causes lack of self control].
(2) As used in this Article, the terms "mental disease or defect" do not include an abnormality
manifested only by repeated criminal or otherwise antisocial conduct.
Blake v. United States (1969) MPC Standard
F: convicted of bank robbery, history of mental problems
Davis Standard: M’Naghten Rule
Should add substantial to lacking of mental capacity based on what we know about mental illness and
the Δs situation (schizophrenic) and leave it as a question for the jury
The Meaning of Wrong
State v. Crenshaw (1983) Religious Beliefs
F: Δ kicked out of Canada, when his wife returned to him, he killed her thinking she had cheated on him
Δ argues followed Moscovite religious faith which required killing of wife for adultery and history of
mental problems.
Legal wrong is synonymous with moral wrong - Need to judge by society’s morals not individual morals
Insanity acquittal requires the Δ to be unaware his conduct was legally wrong
Exception: know act is wrong but mental defect makes you think god is commanding you to do it
○ Deific decree: State v. Cameron (WA 1983): Δ believed God was instructing him
Legal vs. Moral Wrong:
○ Some jurisdictions hold that wrong means legally wrong
○ Others hold that wrong means morally wrong
• Majority: leave issue to jury without specifying whether wrong means legally or morally wrong
○Serravo: “cognitive inability, due to a mental disease or defect, to distinguish right from wrong as
measured by a societal standard of morality, even though the person may be aware that the conduct in
question is criminal.”
○ State v. Wilson (CT 1997) “Action of the Δ was in accordance with his own personal conscience, even
though he knew it was against the prevailing moral code, so as long as his perverted conscience is the
product of is mental disease or defect”
The Meaning of Mental Disease or Defect
• Majority: assume disease is a legal concept, not a medical concept
Definitions:
○ McDonald v. United States (1962): mental disease or defect includes any abnormal condition of the
mind which substantially affects mental or emotional processes and substantially impairs behavior
controls
○ APA: mental disease or retarded include only those severely abnormal mental conditions that
grossly and demonstrably impair a person’s perception or understanding of reality and that are not
attributable primarily to the voluntary ingestion of alcohol or other psychoactive substances
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○ ABA: mental disease or defect refers to impairments of mind, whether enduring or transitory, or to
mental retardation which substantially affected the mental or emotional processes of the defendant at
the time of the alleged offense
○ MPC §4.01(2) As used in this Article, the terms "mental disease or defect" do not include an
abnormality manifested only by repeated criminal or otherwise antisocial conduct [not psychopath].
• Common Law: Personality disorders are NOT mental disease or defects
State v. Guido (NJ 1963) Problem of defining disease
F: Δ convicted of murdering husband. Δ wanted a divorce but husband wanted to stay together despite
being in afrair. Δ tried to kill herself but then killed her husband instead.
Psychiatrist initially found her legally sane but after consultation with defense counsel found her legally
insane and just had to change the last page of their report.
M’Naghten rule does not define/identify a disease but just the effect of the disease
Current State of Insanity Defense
• Majority (~30 states): M’Naghten Rule
• Minority (~15 states): MPC approach
• Federal Law:
18 U.S.C. §17(a) provision that supersedes Lyons and narrows insanity test further
at time of act was unable to appreciate the nature AND quality or the wrongfulness of his acts
○ Legislative Proposals
Three influential bodies support the cognitive branch of the MPC BUT reject the volitional branch
○ Standard Make a Difference?
Jury studies show there is little difference depending on what jury instructions were give
Abolition of Insanity Defense:
• Abolishing defense usually unconstitutional under state constitutions guaranteeing a jury trial and due
process of law
○ 5 states have abolished BUT allow evidence of mental disease for issue of whether Δ possessed the
mens rea required
○ Some with ban allow for commitment to institutional care if convicted
○ Constitutional challenges rejected because insanity so controversial and variable does not possess
Clark v. Arizona (SCUSA 2006): insanity rule open to state choice
Exception: Finger v. State (2001): well established and fundamental principle  struck down
abolishment for Due Process violations
• Rationale for abolishing:
Insanity should only matter when it comes to sentencing
No different than being poor
Note: Psychopath
• Know their conduct is illegal, but experience little or no empathy and have no apparent capacity to
understand the rights of others.
MPC §4.01(2): designed to exclude psychopathic personality “caveat paragraph”
Do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct
BUT State v. Werlein (WI 1987): caveat paragraph inapplicable for testimony on psychopath
MPC paragraph inadequate in excluding that testimony
Note on Automatism: sleepwalking, hypnosis, shock – involuntary acts
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• No mental disease but do not seem proper subjects for blame or deterrence
Defendant’s Plea Choices:
• Majority: Δ can plead either insanity, involuntariness or both
• Minority: when automatism results from a mental disease or defect the only defense available is plea
of not guilty by reason of insanity
Where insanity and automatism are mutually exclusive defenses courts must decide whether the claimed
automatism results from a mental disorder
○ Head Injury:
Wyoming: insanity relies on brain damage and that damage must be serious and irreversible
 head injuries still able to use automatism defense
Dissent: nothing in statute says brain damage needs to be irreversible
○ Epilepsy:
○ England- Bratty: “mental disorder which manifests itself in violence and is prone to recur is a
disease of the mind”
 Epilepsy classified as a mental disease so automatism defense could only be raised through plea of
insanity because resulted from attack of psychomotor epilepsy because prone to reoccur
○ Unconsciousness:
Regina v. Quick: state of unconsciousness due to hypoglycemia would have to plead insanity under
Bratty BUT entitled to involuntary act defense no mental hospital would admit
○ Sleep States: Courts divided on whether it is a complete defense or they should plead insanity and
face mental institutional commitment
McClain v. State: sleep disorder could form basis for automatism defense
Regina v. Burgess: opposite of McClain only defense of insanity
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Diminished Capacity
Mental Disorder to Negate Mens Rea - Defense
Two options: when unable to demonstrate insanity fully
1. diminished responsibility: Δ did not have the specific mental state required for a particular crime
or degree of crime even though he was aware that his act was wrongful and was able to control it
○ Not a complete excuse but a partial excuse
○ Reduce sentence, or perhaps different level of offense (murder becomes manslaughter)
○ Most states do not go this route
2. diminished capacity: lack of capacity to form a particular intent or appreciate wrongfulness
○ Effects whether prosecution can prove all elements of crime
○ Possible COMPLETE Defense - didn’t form the malice, didn’t have intent
- (but if you can prove all that you can probably prove insanity)
 limited to cases in which you did not know what you were doing (martian, orange)
Mens rea Defense as compared to Insanity Defense
○ Not guilty by reason of insanity – most states automatically committed (open ended)
○ Lack of mens reason (specific intent) – get a certain sentence as opposed to open ended
commitment
○ Some cases a full defense
○ Burden on prosecution of proving mens rea, vs insanity burden on Δ
Current State of Diminished Responsibility
• Majority: do not impose special restrictions on the use of mental health evidence to rebut a required
mens rea
• Minority (~13 states): impose restrictions
○ Total Ban: bar all use of mental health evidence to negate mens rea
Mott Restriction: mental health evidence confided to insanity
○ Capacity evidence: don’t allow to establish lack of capacity to form a mental state BUT allow on
issue of whether Δ in fact had the relevant mental state
○ Specific intent: allow to negate mens rea for reason other than lack of capacity but where required
mens rea is specific rather than general intent (CA)
McCarthy v. State: qualified that there must be a lesser offense chargeable with reduced mens
rea ( not applicable in rape and kidnapping)
People v. Wetmore: doesn’t matter if no lesser offense
• Federal: 18 USC §17 – adopts M’Naghten test of insanity but states that ‘mental disease or defect does
not otherwise constitute a defense’
US v. Newman (1989): 18 USC §17 does not eliminate Δ’s ability to disprove guilt with mental defect
evidence
United States v. Brawmer (1972) Expert Testimony
Abnormal mental conditions relevant to proving mental condition for elements of a crime, ie
premeditation and deliberation analogous to voluntary drunkenness defense
Allow expert testimony as to abnormal condition if it is relevant to negative, or establish the specific
mental condition that is an element of the crime.
Clark v. Arizona (SCUSA 2006) Mott Restriction
F: Shot officers thinking they were aliens impersonating government agents trying to kill him
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Mott Restriction: expert testimony admissible only for insanity defense but not element of mens rea
Δ argues evidence to show mental disease and lacks capacity to form mens rea is relevant to rebut
evidence that he did form the required mens rea
BUT probative value cannot be outweighed by prejudicial value, confusion of issues, or potential to
mislead jury
Also concerns inherent in expert testimony: disagreements, opinions
Do NOT allow expert testimony about observational evidence and mental disease only about capacity
(since it relates to insanity - Mott)
Diminished Responsibility as grounds for mitigation
• Diminished or partial responsibility: fact that Δ was mentally disturbed entitled him to a reduction in
the severity of the sentence even though prosecution has proved all the legal elements technically
required for conviction
○ Recognized by some European countries
○ America: some sentencing provisions that allow use of discretion to impose a lesser sentence in
cases of reduced capacity
MPC §210.3 Cmnt: conform to traditional principle rejecting statutorily authorized reduction of
punishment for reduced levels of mental capacity
○ Decreases incentive for abnormal to behave normally
○ Practical effect: leaves sentencing judges to decide what significance if any to attach to mental
illness that neither establishes a defense of insanity nor negates a mens rea element of the offense.
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