Criminal (Katz)
Spring 1999
Page 1 of 64
CASE STUDY -- REGINA V. DUDLEY AND STEPHENS ..................................................................................4
PERSPECTIVES ON PUNISHMENT ......................................................................................................................4
DETERRENCE .............................................................................................................................................................4
REFORM .....................................................................................................................................................................5
INCAPACITATION .......................................................................................................................................................6
RETRIBUTION .............................................................................................................................................................6
MIXED THEORY .........................................................................................................................................................7
ACTUS REUS -- THE BAD ACT .............................................................................................................................7
Voluntary Act Doctrine ...................................................................................................................................................... 7
OMISSIONS .................................................................................................................................................................7
Barber v. Superior Court .................................................................................................................................................... 8
Model Penal Code, § 2.01. Requirement of Voluntary Act ............................................................................................... 8
Jones v. United States......................................................................................................................................................... 8
Omissions: Exceptions to the no-liability rule................................................................................................................... 9
POSITIVE ACTS......................................................................................................................................................... 10
Voluntary Acts and the Model Penal Code ...................................................................................................................... 10
Martin v. State .................................................................................................................................................................. 10
People v. Newton ............................................................................................................................................................. 11
Robinson v. California ..................................................................................................................................................... 11
Powell v. Texas ................................................................................................................................................................ 12
THE THOUGHT DOCTRINE ........................................................................................................................................ 12
MENS REA ................................................................................................................................................................ 13
Regina v. Cunningham ..................................................................................................................................................... 13
Regina v. Faulkner ........................................................................................................................................................... 14
Santillanes v. New Mexico ............................................................................................................................................... 14
United States v. Jewell ..................................................................................................................................................... 15
MPC -- REQUIREMENTS OF CULPABILITY ................................................................................................................ 15
Purposely .......................................................................................................................................................................... 15
Knowingly ........................................................................................................................................................................ 16
Recklessly ........................................................................................................................................................................ 16
Negligently ....................................................................................................................................................................... 16
MPC 2.02(6) -- Conditional Intent .................................................................................................................... 17
Statutory Interpretation ...................................................................................................................................... 17
General/Specific Intent and MPC ..................................................................................................................................... 17
MISTAKE OF FACT.................................................................................................................................................... 18
Moral Wrong Doctrine -- Prince ...................................................................................................................................... 18
Legal Wrong Doctrine -- Olsen ........................................................................................................................................ 19
IGNORANCE OF LAW ................................................................................................................................................ 20
Collateral Law Exception ................................................................................................................................................. 21
Express Negation Exception............................................................................................................................................. 21
Reasonable Reliance Exception ....................................................................................................................................... 22
Fair Notice Exception....................................................................................................................................................... 23
STRICT LIABILITY .................................................................................................................................................... 24
People v. Ceballos ............................................................................................................................................................ 24
Morrissette v. United States ............................................................................................................................................. 25
State v. Guminga .............................................................................................................................................................. 25
State v. Baker ................................................................................................................................................................... 26
The SL Debate.................................................................................................................................................................. 26
ZR-4 Hypo ....................................................................................................................................................................... 27
MPC 2.05 ......................................................................................................................................................................... 27
THE MENS REA OF HOMICIDE .......................................................................................................................... 28
INTRODUCTION ........................................................................................................................................................ 28
PREMEDITATION-DELIBERATION FORMULA ............................................................................................................ 28
Commonwealth v. Carrol ................................................................................................................................................. 29
Johannes de Silentio
Criminal (Katz)
Spring 1999
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People v. Anderson .......................................................................................................................................................... 29
PROVOCATION ......................................................................................................................................................... 30
The Nature of the Required Provocation ............................................................................................................ 30
Girouard v. State .............................................................................................................................................................. 31
Maher v. People ............................................................................................................................................................... 31
The Objectivity of the Standard .......................................................................................................................... 32
Director of Public Prosecutions v. Camplin ..................................................................................................................... 32
Diminished Responsibility ............................................................................................................................................... 32
FELONY-MURDER RULE .......................................................................................................................................... 33
Regina v. Serne ................................................................................................................................................................ 33
People v. Stamp ................................................................................................................................................................ 34
Statutory Reform of Felony-Murder Rule ........................................................................................................... 34
Limitations on Felony Murder Rule .................................................................................................................... 35
The Inherently Dangerous-Felony Limitation .................................................................................................................. 35
Merger (limitation to felonies independent of the homicide ............................................................................................. 36
CAUSATION ............................................................................................................................................................. 37
CAUSATION -- FORESEEABILITY AND COINCIDENCE ................................................................................................ 38
People v. Acosta ............................................................................................................................................................... 38
People v. Arzon ................................................................................................................................................................ 38
People v. Warner-Lambert Co. ......................................................................................................................................... 39
MPC on Causation -- 2.03 ................................................................................................................................................ 40
CAUSATION -- SUBSEQUENT HUMAN ACTIONS (INTERVENING ACTS) ..................................................................... 40
People v. Campbell .......................................................................................................................................................... 40
Subsequent Actions Intended to Produce the Result ........................................................................................... 41
Stephenson v. State .......................................................................................................................................................... 41
Subsequent Actions that Recklessly Risk the Result ............................................................................................ 42
Commonwealth v. Root.................................................................................................................................................... 42
People v. Kern .................................................................................................................................................................. 42
State v. McFadden
-- Rejects Root ............................................................................................................................. 42
People v. Atencio ............................................................................................................................................................. 43
FOUR WAYS OF LIABILITY -- COMPARISON ................................................................................................ 43
Principal ............................................................................................................................................................. 43
Innocent Agent doctine (Perpetration by means) ................................................................................................ 43
Accomplice Liability ........................................................................................................................................... 43
Conspiracy .......................................................................................................................................................... 44
COMPLICITY ........................................................................................................................................................... 44
MENS REA ............................................................................................................................................................... 45
Mens Rea as to actions of the principal .............................................................................................................. 45
Mens Rea as to attendant circumstances ............................................................................................................ 47
Mens Rea as to Result -- The McVay Exception under MPC .............................................................................. 47
ACTUS REUS ............................................................................................................................................................ 48
RELATIONSHIP BETWEEN LIABILITY OF THE PARTIES .............................................................................................. 49
The Feigning Primary Party ............................................................................................................................................. 49
Innocent Agent Doctrine -- MPC 2.06(2)(a) (Perpetration by Means) ............................................................................ 50
Culpable-but-Unconvictable Doctrine .............................................................................................................................. 50
CONSPIRACY ............................................................................................................................................................ 50
Co-conspirator Exception to Hearsay Rule ...................................................................................................................... 51
Conspiracy as a Form of Accessorial Liability ................................................................................................... 52
Pinkerton v. United States ................................................................................................................................................ 53
FELONY-MURDER AND COMPLICITY ........................................................................................................................ 53
Killing by a Non-Felon -- Fact Pattern ............................................................................................................................ 53
Theories of Felony-Murder .............................................................................................................................................. 53
ATTEMPTS ............................................................................................................................................................... 54
Common Law ...................................................................................................................................................... 54
Johannes de Silentio
Criminal (Katz)
Spring 1999
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MPC -- Majority view ......................................................................................................................................... 55
MENS REA OF ATTEMPTS ......................................................................................................................................... 57
ACTUS REUS OF ATTEMPTS ...................................................................................................................................... 58
SOLICITATION .......................................................................................................................................................... 59
DEFENSES ................................................................................................................................................................ 60
ABANDONMENT -- SEE ATTEMPTS ........................................................................................................................... 60
IMPOSSIBILITY ......................................................................................................................................................... 60
Pseudo................................................................................................................................................................. 60
Inherent ............................................................................................................................................................... 61
Legal ................................................................................................................................................................... 61
NECESSITY ............................................................................................................................................................... 61
INSANITY ................................................................................................................................................................. 63
LEGALITY ................................................................................................................................................................ 64
Johannes de Silentio
Criminal (Katz)
Spring 1999
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Case Study -- Regina v. Dudley and Stephens
Regina v. Dudley & Stephens
1) Dudley, with Stephens assent, killed Parker. D, S, and Brooks all ate him. Jury did not know if
killing was felony and murder. IF the killing was felony and murder, THEN D and S were guilty of
felony and murder.
2) Arguments
a) Necessity.
i) D and S can't show that they would be rescued, so killing can't be necessary.
ii) D and S can't show that they wouldn't have been picked up in one day, which would make
killing not necessary.
b) Self Defense.
i) N/a, boy was not threatening them. He was innocent bystander.
ii) Court is not clear if this is a real on innocent threat.
c) Theft. Extreme hunger justifies theft, so why not murder? However, there is evicdence that theft
in this scenario is illegal, too.
d) Analogy to war. Makes case for convicting Dudley. There is a higher duty to sacrifice one's life
than to preserve it in contexts like this (or war). There is no unqualified necessity to preserve
one's life.
i) For Dudley, you can argue that Parker had a duty to die.
e) Footnote argument (p 136). If 3 are justified in killing 1, but time passess, and 2 kill 1 and 1 kills
1, then it could have been the sacrifice of 3 for 1. Sacrifice of many for sake of one.
i) Weak. They were going to die anyway, so choice is really between 3 or 4 dying (1 or 0
dying).
f) Law's may be set up that exceed what man can reach, but temptation should not be made an
excuse. Not a hypocrite if you are acknowledging your own weakness.
3) Disposition
a) Court passed sentence of death, but Crown commuted sentence to 6 months in jail.
Consequentialists (Utilitarians) v. Deontologists

Consequentialists think of efficiency, and don't give credence to act/omission.

Deontological intuition - if you are not acting, then you have committed no wrong. So, only commit
wrong by acting.

Think of this debate with 5:1 runaway train example, and with act/omission distinction.

Consequentialists would think that acting to avoid kiling 5 is optimal.

Deontologists might say that, by acting, you have killed 1 person. By not acting, 5 people get run
over.
Perspectives on Punishment
Deterrence
1) Deter commission of future offenses.
a) General. Threat of punishment deters potential offenders
b) Specific. Infliction of punishment on convicted Ds leaves them less likely to engage in crime.
2) Bentham. Man calculates pain and pleasure proportionally in deciding whether to act.
Johannes de Silentio
Criminal (Katz)
Spring 1999
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3) Andenaes.
a) Three general-preventative effects of punishment:
i) Deterrence
ii) Strengthens moral inhibitions (moralizing effect)
iii) Stimulates law-abiding conduct
b) Achieving inhibition and habit is beneficial in preventing crime.
Criticism

Major flaw - disproportionate/ineffective punishments. Overly severe punishment, or punishing
someone and it will never be herad of. So, may stop offender, but others may not be deterred.

Results with punishment recommendations that don't square with (intuitive) notions of justice.

Market analysis. Stop repeat offenders, but people may come in and take the new opportuntes in
criminal profession. May not have proclivity to criminal, but 'gap' will be filled in this professional
market. So, crime would not decrease that much.

Retributivists may not like it.
Reform
Radzinowicz and Turner.
1) Three stages of penal policy
a) Terror. Disproportionate punishment for offense.
b) Retribution.
i) Proportionality of punishment based on type of crime.
ii) Recognized individual rights that could not be sacrificed for terror policy.
iii) Problem was that it standardized punishment. Did not account for personality variations that
may require more/less punishment. Thus, ineffective.
c) Accounting for offender personality.
i) Punishment based upon the type of offender (personality). That is, length of sentence may
vary based on guilty party.
Hart.
1) Reform, as a vague objective, includes any strengthening of offender's disposition and capacity to
keep within the law. Not accomplished by fear of punishment.
2) Reform is a remedial step that fits where criminal law has failed in its primary task of securing
society from law breaking.
3) Reform should not be central aim of criminal law. Two types of people: those who have broken a law
and those who have not yet but may. Reform as dominant objective would preclude goal of
influencing latter group.
4) Current 'uneasy compromise' in law is between
Moore.
1) Two goals of reform as two different ways to render offenders nondangerous.
a) Making criminals safe to return to streets. Punishment justified as cost-efficient means of
shortening expensive, prolonged incarceration that would otherwise be necessary.
b) Making criminals safe to return to streets and capable of leading successful lives. Punishment
justified as for offender's sake, although against his will. Thus, paternalistic.
I) NOT APPROPRIATE.
(1) Misallocation of social resources to people who are not very deserving.
(2) Paternalism inherently suspicious. Should be reserved for mentally disabled, children.
(3) Moral blindness. Recasting punishment as treatment makes possible sentences that may
do more good for ourselves than the offenders.
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Criminal (Katz)
Spring 1999
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Incapacitation
Cohen.
1) Collective incapacitation.
a) Uniform sentencing for crimes. Ineffective, explodes prison population.
2) Selective incapacitation.
a) Individualized sentences based on predictions that particular offenders would commit serious
offenses in the future if not incarcerated. Reduce crimes with little or no increase in prison
population. Based on prediction of future criminality.
b) Small number of offenders commits a disproportionately large number of crimes.
c) Pros
i) Prediction of future conduct enters into sentencing anyway. Why not be more accurate in
assessing it?
d) Cons
i) Unequal punishment for same crime
ii) Unjust to convict people for crimes they have not yet committed
iii) Predictions about future are often wrong (60% false positives)
iv) Variables in predicting future conduct are discriminatory - especially toward poor (juvenile
records, employment, education).
v) Variables are also tied to race, which may disparately impact minorities that have fewer
opportunities.
3) Criminal Career incapacitation.
a) At a specific offender type. E.g., robbery offenders. Have short careers, but repeat offenses
many times in them. Longer, mandatory sentences (2 years as opposed to something less) could
reduce robberies.
Criticism

Retributivist. Might consider it too lenient.
Retribution
Kant
1) Power to punish as right of sovereign to inflict pain upon his subject for a crime he committed.
2) Absolute requirement that subject has committed a wrong (otherwise, he is treated as a means only,
which is bad)
3) Penal law is a categorical imperative.
4) Right of retaliation (jus talionis) - a harm done to another is a harm done to you (you injure someone,
so you should be injured). Principle by which court can definitely assign quality and quantity of just
penalty. Thus, murderers must die (but should not be subjected to maltreatment b/f their death).
Stephen
1) Inflicting punishment expresses the hatred that the offense has excited. Criminal law holds that it is
morally right to hate criminals. Relationship between criminal law and moral sentiment.
Moore
1) Retributivism is that punishment is justified by moral culpability of those who receive it. Distinct
from rehabilitation and utilitarian (future prevention) views.
2) Retrib creates duty to punish. Emphasis on moral desert of offender: that it is necessary and
sufficient to punish offender.
3) Distinct from Stephen, who said that hatred of citizenry must be satisfied. Retrib is independent of
this.
Criticism

Give them what they deserve. Squares with notions of justice. However, flawed.
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Spring 1999
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Major flaw - how do we know 'what they deserve'? Presupposes we know what just desserts are.
Hard to tell in 'middle cases' (robbery, but might be easier with extreme case like murder.
Mixed Theory


Moore (utility and retrib). Punishment is justified IFF it achieves a net social gain AND is given to
offenders who deserve it.
Mixed theory and pure utility theory both compete against retrib.
Note - Tort liablity won't do work of criminal law

Poor are judgment prof. They can't pay damages, so no deterrent to disobey

Counterpoint. What if damages were scaled to net worth? Pay 1/2 your savings, etc.

No loss of freedom = keep calculating costs and paying them. Insufficient prevention.

No centralized enforment in tort to determine who committed what crime. Private enforcement may
not work.

Tort won't work for: Abortion, Prostitution, Drug sales

In these cases, think about who is damaged - who would enforce actions in tort? Unless 3rd party
is harmed, there is no tort action. Bad, b/c something else wrong with conduct other than 3rd
party effect that we want to deter. Private enforcement requires that there is a victim.
Actus Reus -- The Bad Act
P/f case of crime

Actus reus - Bad act

Mes rea - Bad mental state

Causation
The actus reus consists of

a voluntary act (or failure to perform a voluntary act that one has a legal duty to perform)

that causes

social harm.
VOLUNTARY ACT DOCTRINE

Act/Omission
(Barber)

Voluntary Act 1
(Martin)

Voluntary Act 2
(Newton)

Thoughts
2.01(1)
2.01(2)
Omissions


General Rule. Subject to a few limited exceptions, a person has no duty to rescue or render aid to
another person in peril.
Law distinguishes between an act that affirmatively causes harm and the failure of a bystander to take
measures to prevent harm.
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Criminal (Katz)
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BARBER V. SUPERIOR COURT
CB 197

Rule

"Murder is the unlawful killing of a human being…with malice aforethought..." Withdrawing
treatment is not likely to improve a patient's condition is not murder (unlawful killing) - even
when intentional and with the knowledge that the patient will die.
1) Patient underwent surgery by Ps. Afterwards, had complications and lapsed into persistent vegetative
state. Ps told Herbert's family, and they request to take him off respirator. Two days later, IV
food/water removed and Herbert later died. Ps petition reinstatment of murder complaint.
2) Reasoning
a) Concede that - at termination of treatment - Herbert was not dead, b/c there was some brain
activity (statutory test) and his heart/respiratory functions were still operating (historical test).
b) Analysis of Ps' conduct as unlawful, as a matter of law.
i) There is no criminal liability for failure to act unless there is a legal duty to act. A physician
has no duty to continue treatment, once it has proved ineffective. So, no need to continue
life-sustaining treatment once a qualified medical opinion says recovery is unlikely.
c) Proportionate Treatment. If a treatment has more burdens than gains for a patient, it should not
be continued.
d) Wife acted properly as surrogate in deciding to withdraw life support. Children agreed, and there
was no evidence malice.
e) No legal requirement of prior judicial approval.
3) Reversed reinstatment of complaint.
Assume Away Test. Subtract away person who act from situation:

Omission. Die anyway from underlying cause (not on hook)

Act. Live w/o acting to pull plug (subtracted away for 2 seconds when plug is pulled)

Two applications to Barber. Subtraacting doctoer away from situation of ceasing life support.

Narrow. Prosecution - taking off life support is act, it is killing.

Broad. Defense - not intervening in first palce, would die from underlying complication.
MODEL PENAL CODE, § 2.01. REQUIREMENT OF VOLUNTARY ACT
1. liability must be based on conduct which includes a voluntary act or the omission to perform a
voluntary act of which person is physically capable of
2. following are not voluntary acts: (a) reflex or convulsion; (b) 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.
3. Person is liable for an omission “unaccompanied by action” only if: (a) the law states explicitly that
is the case; (b) a duty to perform the omitted act is otherwise imposed by law.
4. possession is an act, if possessor had possession of thing in question for an adequate time such as to
have been able to get rid of it
JONES V. UNITED STATES
CB 191

Holding

When a person is criminally charged with an omission to act, government must prove there
was a legal duty to act.

Rule
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
The omission of a legal duty owed by one individual to another - where that omission results
in death of the party to whom the duty is owed - makes the other party chargeable with
manslaughter.

This duty must be legal or contractual, and not only moral: moreover, the omission must be
the immediate and direct cause of death.

P lived with Green and Green's infant son. Child died from lack of care. P found guilty of
involuntary manslaughter through failure to provide (food and medical care) for infant. Appeals
based on failure of trial court to charge jury to find beyond reasonable doubt, as an element of crime,
that P was under legal duty to care for infant.
1) Reasoning
a) Where there is liability by omission:
i) Where statute imposes duty of care
ii) Where person stands in a certain status relationship to another
iii) Where one has assumed a contractual duty to care for another
iv) Where one has voluntarily assumed the care of another and has withdrawn the that person
from others who could render aid
v) Creating a risk. A person who wrongfully or even innocently harms/endangers another or
another’s property or person has a common law duty to aid that party
b) The jury instructions failed to suggest the need to find a legal duty of care: the only mention of a
legal duty was the reading of the indictment to the jury. This is not enough
2) Reversed and remanded.
OMISSIONS: EXCEPTIONS TO THE NO-LIABILITY RULE
Elaboration on Jones

statutory prohibition – a duty to act may be statutorily imposed. Examples include a statute that
requires a person to pay taxes on earned income, or a statute that requires a driver of a motor vehicle
involved in an accident to stop her car at the scene. Absent a valid defense, failure to satisfy a
statutory duty constitutes an offense.

Common law duties to act that result in “comission by omission” liability.

Status relationship: A relationship which imposes a duty is usually founded on the dependence of
one party on the other, or on their interdependence. Examples of such status relationships
include: parents to their minor children; married couples to one another; and masters to their
servants.

Contractual obligation: A duty to act may be created by implied or express contract. For
example, a person who breaches an agreement to house, feed, and provide medical care to an
infirm stranger, or to care for a child.

Omissions following an act: In some circumstances an act, followed by an omission, will result
in criminal responsibility for the omission, even when there is no liability for the act. Voluntary
assistance – one who voluntarily commences a rescue or assistance to another in jeopardy has a
duty to continue to provide aid, at least if a subsequent omission would put the victim in a worse
position than if the actor had not initiated help.
Good Samaritan Statutes
Certain places make it criminal to refuse to rescue a person in emergency situations (Minn., R.I.,
Vermont, Wisconsin). Statute likely imposes a fine for violation.
Moral Justification for Act/Omission Distinction

Rachels. There is not a good reason to draw the act/omission distinction. He thinks he has eliminated
the act/omission distinction by demonstrating two hypotheticals that seem equally criminal: pushing
baby under water vs. failing to remove it from the water and wanting it to die.
Johannes de Silentio
Criminal (Katz)
Spring 1999
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Foot. Disagrees. There is a difference between:

Right not to be interfered with AND

Right to be rescued from trouble

Also, look at distinction between origination of harm v. failure to bring aid
Analyze rights in the following scenarios according to Rachels and Foot:
a) Island example. Save 5 kids or your 1 kid, each to the exclusion of the other.
b) Utilitarian surgeon. Need 5 organs to save 5 people, 1 person has them, and 1 will die if organs
harvested to save the others.
c) Rachels would say no difference in either situation, Foot would disagree.
Positive Acts

General Rule. Subject to the limited exceptions where liability may be predicated on an omission, a
person is not guilty of a crime unless her conduct includes a voluntary act.
VOLUNTARY ACTS AND THE MODEL PENAL CODE

Required for culpability: § 2.01(1) of the MPC states that “a person is not guilty of an offense unless
his liability is based on conduct which includes a voluntary act or the omission to perform an act of
which he is physically capable.”

Act. A bodily movement - physical, although not necessarily visible, behavior. Excludes the
internal mental processes of thinking about, or of intending to do, a physical act. Voluntary or
involuntary. MPC 1.13

Voluntary. Criminal responsibility should only attach to those who are accountable for their
actions. Use of mind, not just brain.

MPC 2.01(2) defines involuntary conduct. Groups reflexes, convulsions, and conduct during
unconsciousness, sleep, or hypnosis in the “involuntary” category

2.01(2)(d) says involuntary conduct is is not a product of the effort or determination of the
actor, either conscious or habitual.
MARTIN V. STATE
CB 171

Rule

Criminal liability must be based on conduct which includes a voluntary act or omission to act
which it was physically possible to have performed.

Holding

Accusation of drunkenness in public place cannot be established by proof that accused was
forced to that place by a police officer.

Police arrested P at home and took him on public highway, where he manifested a drunken condition
(shouting profanities). P convicted of being drunk on highway.

Reasoning. Statute under which P was convicted presupposes a voluntary appearance.
Note

Prosecution will expand the time frame and counter that Martin’s voluntary act was whatever led up
to his arrest (perhaps the beating of his wife) – in this sense, his involuntary acts (manifestation of his
drunken condition in a public place) are necessarily related to his voluntary acts.
Time Frame for Voluntary Act

If one identifies the D’s conduct broadly enough, it will always include a voluntary act.
Johannes de Silentio
Criminal (Katz)
Spring 1999
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

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General Rule. Court should apply the fully stated rule of criminal responsibility to get the time
frame correct. A person is not guilty of an offense unless her conduct, which must include a
voluntary act, and which must be accompanied by a culpable state of mind (the mens rea of the
offense), is the actual and proximate cause of the social harm, as proscribed by the offense.
Broader time frame. People v. Decina. D, an epileptic, killed four children when the car he was
driving went out of control during a seizure. Prosecutor alleged that D knew of his susceptibility to
seizures and failed to take proper precautions. The actus reus of the offense was “the operation of a
vehicle resulting in death.” It was perfectly appropriate, therefore, to focus on the acts constituting
the arguably negligent operation of the car.
Narrower time frame. Martin v. State revisited. A broad time frame might suggest that the D in
Martin was guilty b/c he became drunk voluntarily, before the police arrived at his home. However,
the court applied a narrower time frame, one that discounted these prior voluntary acts. A careful
inspection of the statute shows that the Martin court was correct in its analysis.
PEOPLE V. NEWTON
CB 173

Holding

"Where evidence of involuntary unconsciousness has been produced in a homicide
prosecution, refusal of requested instruction on the subject - and its effect as a complete
defense if found to have existed - is prejudicial error."

Rule

Liability must be based on conduct that includes a voluntary act/omission that was physically
possible to be performed. Where not self-induced, as by voluntary intoxication or the
equivalent, unconsciousness is a complete defense to a charge of criminal homicide.

Newton got into fight with two cops after being pulled over. One cop shot P in stomach. Newton
then shot the officer at point blank. Newton testifies that there was a gap in his memory between
being shot and arriving at the first hospital. At trial, a medical expert testified that gunshots to body
cavities produce reflex shock reaction, which often causes wounded people to lose consciousness for
up to a half-hour. Newton was convicted of voluntary manslaughter: he appeals.

Reasoning. "Unconsciousness need not reach the physical dimensions commonly associated with the
term." It may occur from shock, as described in the expert testimony: it can exist "where the subject
physically acts in fact but is not, at the time, conscious of acting."

The Weird Acts Problem. MPC 2.01(2) lists involuntary acts, which include “a bodily movement that
otherwise is not a product of the effort or determination of the actor, either conscious or habitual.”
Question: How does drug addiction, alcoholism, and sickness fit into the “voluntary act” requirement?
ROBINSON V. CALIFORNIA

Holding

A state may not criminalize the mere status of being a drug addict.

Rule

The criminalization of a disease is cruel and unusual punishment, and thus is unconstitutional
under Amendments 8 and 14.

State statute makes it illegal for person to be addicted to use of narcotics. D had typical indications of
frequent narcotics use. At trial, judge told jury they convict if they agreed D either was of the status
Johannes de Silentio
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

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or had committed the act denounced by the statute. That he used such drugs in the county or was
addicted to them while in the county. Jury found D guilty.
Reasoning. Addiction to drugs is a disease like leprosy or an STD. Like any disease, it may be dealt
with by compulsory treatment. Also, like any disease, drug addiction may be involuntary. To
criminalize such an ailment is clearly cruel and unusual.
Reversed conviction.
POWELL V. TEXAS

Holding

A person may be criminally liable for being in a public place while suffering from a disease.

D was arrested and charged with being intoxicated in a public place, which violated state law
(maximum penalty was $100 fine). Trial court ruled as matter of law that chronic alcoholism was not
a defense, fined D.

Reasoning

Chronic alcoholics in general do not suffer from such an irresistible compulsion to drink and to
get drunk in public. Nothing suggest that they are utterly unable to control their performance of
either or both of these acts, and thus cannot be deterred at all from public intoxication.

Criminal punishments have fixed time periods, civil commitment does not. Thus, to overrule the
lower court's ruling would subject alcoholics to indefinite incarceration.

Present case is distiguishable from Robinson. D was convicted for being drunk in public (actus
reus), not for being a chronic alcoholic. Texas was not punishing status like CA did in Robinson.
D was punished for criminal act that may create health and safety hazards to public.
Current Law For Status Crimes.

Powell did not overrule Robinson

Bottom Line: A state may not dispense with actus reus requirement. Some conduct by the defendant
is required, at least of an involuntary nature.
The Thought Doctrine
1) From a utilitarian standpoint, a society that would punish thoughts would be an intolerable place to
live. From a retributive standpoint, a society should not punish people for mere thoughts.
2) In 'thinking about killing president' case, it is inconsistent with thought doctrine to convict. Only
thought, not moving forward through acting (which is then sufficient for criminal liability).
3) Any time thought makes the difference between innocence and guilt, we are punishing for thought this is bad.
a) Can not be 'but for' thought we would not punish, b/c then we would have a lot of innocently
minded killings.
b) Thoughts are not sufficient per se, but are a necesssary requirement for criminal liability.
c) Thoughts must line up with acts to be guilty.
4) Where actors are morally culpable despite an apparent lack of actus reus, and punishment may not
conflict with voluntary act doctrine.
a) Innocent external behavior accompanied by criminal disposition. A soldier kills an enemy
soldier believing that his victim is his own sergeant. A man has sexual intercourse with a woman
over the age of consent, though he believes that she is underage. Does the voluntary act principle
or any other principle preclude punishment in these cases?
b) No external behavior but distinct criminal disposition. An example of this situation occurs
where a person conceives a criminal plot, but takes no action to further it.
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Mens Rea
Generally, a X is guilty of an offense if X:

performs a voluntary act (or omits an act that is his legal duty to perform),

that causes social harm (the actus reus), AND

with a mens rea (guitly mind).
Mens rea has two meanings:
1) Mens Rea - General Sense
a) "An unwarrantable act without a vicious will is no crime at all."
b) Vicious will as blameworthiness entailed in choosing to commit a criminal wrong.
c) Mens rea requirement satisfied by view that blame and punishment are unjust in absence of
choice.
2) Mens Rea - Special Sense
a) Mental state required by defnintion of offense to accompany act that produces/threatens harm.
b) Real concern is not mental state per se (regret, eagerness, etc.) but with the level of intentionality
with which D acted: what D knew or should have known when he acted.
c) Defense to criminal liabilty are often mens reas defenses:
Malice

Although the term has a more complicated meaning in the context of murder, in most circumstances a
person acts with “malice” if he intentionally or recklessly causes the social harm prohibited by the
offense. Term is rarely employed in its non-legal sense, as meaning “ill-will” or spite.
Criminal Negligence

This is a flagrant and reckless disregard for the safety of others. Reasonable person test applies. The
test applied, whether it is an act of omission or comission, is what a reasonable person would do
under like circumstances.
REGINA V. CUNNINGHAM
CB 205

Rule

In any statutory definition of a crime, malice requires either:

An actual intention to do the particular kind of harm that was in fact done; OR

Recklessness as to whether such harm should occur or not (foreseeing harm might occur
yet continue and take on that risk of harm).
1) Couple lived next to home appellant was to occupy upon his marriage. Two houses were once one:
basement divided by loose stone wall. Appellant removed/stole the meter from the gas pipes in his
basement. He removed the meter for the money inside it. There was a stop tap, but he did not pull it,
and gas escape into the other home (endangering lives).
2) Reasoning
a) The word 'maliciously' in a statutory crime postulates foresight of consequence.
b) At trial, the judge mistakenly instructed jury that 'malicious' meant 'wicked'.
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i)
Judge effectively told jury that IF they believed appellant acted wickedly - and he clearly did
by stealing the meter - THEN they ought to find he acted maliciously in casuing the couple to
take in the gas (endangering her life).
ii) Court finds that it should have been left to jury to decide - EVEN IF he did not intend to
injure Wade - whether appellant foresaw that removal of meter might injure another, and
removed it in spite of that recognition.
3) Quashed conviction.
REGINA V. FAULKNER
CB 207

Holding

A person cannot be found guilty of a felony when he had no intent to commit that felony.

Rule

To be a felony, the act must be in fact intentional and willful: intention and will may be
proven by a showing that accused knew the injury was a probable result of his act and that he
acted in spite of that knowledge.
1) D was sailor on ship. When to hold to steal rum, lit match in order to see better, lit the rum and
caught ship on fire (also injured self). Convicted under for arson (maliciously setting ship on fire),
upon instruction that if jury found he was stealing rum and that fire took place as stated - even though
he had no intenton of setting ship on fire - he ought to be found guilty of arson.
2) Reasoning. Jury was improperly instructed: they were told to convict D for the accidental
(unintended) consequence incidental to another felonious act. A person can not be held criminally
liable for an unprobable consequence of his act, as he could reasonably foresee.
3) Quashed conviciton for arson.
SANTILLANES V. NEW MEXICO
CB 209

Holding

Felony punishment requires criminal negligence, and not ordinary civil negligence.

Rule

When a criminal statute is silent on whether mens rea element is required, criminal intent is
presumed as an essential element.
1) Facts. D cut his 7 year-old nephew's neck with a knife during a fight. Defense requested jury
instruction based on MPC definition of criminal negligence. Trial court refused instruction, and
instructed jury on civil negligence standard.
2) Reasoning
a) Implying a civil negligence standard in this case takes the child abuse statute beyond its intended
scope and criminalizes conduct that is not morally contemptible. Court construes statute as
aiming to punish conduct that is morally culpable, not merely inadvertent. Thus, the mens rea
element in the statutue requires showing of criminal - and not ordniary civil - negligence.
3) Court affirmed conviction despite erroneous instruction, b/c the error was harmless.
Distinguishing Civil from Criminal Negligence

A person who breaches his duty of care to another has acted negligently, as defined by the Hand
formula above. However, not every breach constitutes a crime. “Criminal negligence” is conduct
that represents a gross deviation from the standard of reasonable care, i.e., a person is criminally
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negligent if he takes a substantial and unjustifiable risk of causing the social harm that constitutes the
offense charged. In other words, criminal negligence exists where the “PL” far outweighs the “B.”
UNITED STATES V. JEWELL
CB 221

Rule

Deliberate ignorance and positive knowledge are equally culpable.

To act knowingly is not necessarily to act only w/ positive knowledge, but also to act with an
awareness of the high probability of the existence of the fact in question. When this
awareness of is present, positive knowledge is not required.
1) D was convicted of knowingly transporting marijuana in his car from Mexico to US.
2) Held that D deliberately avoided positive knowledge of the weed in his car.
3) § 2.02(7)
a) "When knowledge of the extistece of a particular fact is an element of an offense, such
knowledge is established if a person is aware of a high probability of its existence, UNLESS he
actually believes that is does not exist."
4) Conscious purpose to disregard. Departure of actual knowledge existed only so far as to encompass
a calculated effort to avoid the sentence of the statute.
MPC -- Requirements of Culpability
General Requirements of Culpability
a) "Unless some element of mental culpability is proved with respect to each material element of the
offense, no valid criminal conviction may be obtained…"
b) Four levels of culpability (arrranged by degree of culpability, most to least)
i) Purpose
ii) Knowledge
iii) Recklessness
iv) Negligence
c) Material Elements
i) Nature of forbidden conduct
ii) Attendant cirucmstances
age in statutory rape law
iii) Result of conduct
death
d) One level of culpability must be proven with respect to each material element of an offense.
i) Default Rule. When no mental state is provided in statute, use recklessness (§2.02(3)).
PURPOSELY

The term “purposely” has two definitions, depending upon whether the material element of the
offense pertains to a result or conduct, on the one hand, or to an attendant circumstance on the other.

§ 2.02(2)(a)(i): In the context of a result or conduct, a person acts “purposely” if it is his “conscious
object to engage in conduct of that nature or to cause such a result.” So defined, “purposely” is a
mental state comparable to one of two common law definitions of “intentional.”

§ 2.02(a)(ii): A person acts “purposely” with respect to attendant circumstances if he “is aware of the
existence of such circumstances or he believes or hopes that they exist.” For example, if D enters an
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occupied structure in order to commit a felony in side, he has acted “purposely” with respect to the
attendant circumstance that the structure was occupied.
KNOWINGLY

The Code provides two definitions of the term “knowingly,” one that applies to results, and the
second that pertains to conduct and attendant circumstances.

§ 2.02(2)(b)(ii): A result is “knowingly” caused if the actor “is aware that it is practically certain that
his conduct will cause such a result. For example, an airplane bomber “knowingly” kills his intended
victim’s fellow passengers, unless he is so deranged that he is not aware that their deaths are
practically certain to result.

§ 2.02(2)(b)(i): With “attendant circumstances” and “conduct” elements, one acts “knowingly” if he
is aware that his conduct is of that nature or that such attendant circumstances exist. For example, if
D purchased stolen property and was prosecuted for “knowingly receiving stolen property,” D would
be guilty of the offense if he was aware that it had been stolen.

“Willful blindness.” § 2.02(7) is a special provision which states that knowledge is established if “a
person is aware of the high probability of ... the attendant circumstance’s existence, unless he actually
believes that it does not exist.” Application: United States v. Jewell (9th Cir. 1976). Jewell entered
the US driving a car in which marijuana had been concealed in a secret compartment. He claimed he
did not have positive knowledge that the marijuana was present. Held: Willful ignorance is
equivalent to knowledge in criminal law. To act “knowingly” is not necessarily to act with positive
knowledge, but also to act with an awareness of the high probability of the existence of the fact in
question.

Acting “purposely” versus acting “knowingly.” Part I Hypo: D destroys a hotel to obtain insurance
money, and the death of guests result. Can the prosecution prove that the death of the guests is a
means and not a byproduct? If so, then this is an intentional killing done “purposely” and not merely
“knowingly.” Otherwise it is merely a “knowing” act.

Acting “purposely” versus acting “knowingly.” Part II. There are cases of intentional killings that do
not meet the “knowingly” standard. Someone shoots a gun at a victim when there is only one bullet
in the cylinder, and the victim dies – the killer has acted “purposely” but not “knowingly.”
RECKLESSLY

Under § 2.02(2)(c), a person acts “recklessly” if he consciously disregards a substantial and
unjustified risk that the material element exists or will result from his conduct. A risk is “substantial
and unjustifiable” if 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.
NEGLIGENTLY

Whereas the reckless actor “consciously disregards” the risk, the negligent actor’s risk-taking is
inadvertent. Under 2.02(2)(d), a person’s conduct is negligent if the actor “should be aware of a
substantial and unjustifiable risk that the material element exists or will result from his conduct.” The
definition of “substantial and unjustifiable” is the same as that for “recklessness,” except that the
term “reasonable person” is substituted for “law-abiding person.”

Negligence versus recklessness. What if someone knows of a one-in-four risk, but truly believes it is
an insignificant risk? Katz said that the drafters of the MPC would say that this person is reckless...
but if this is true, what is the difference between negligence and recklessness? Katz: we are willing
to dispense with a certain kind of awareness in favor of another.
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MPC 2.02(6) -- CONDITIONAL INTENT


MPC 2.02(6). When a particular purpose is an element of an offense, the element is established
although such purpose is conditional, UNLESS the condition negatives the harm or evil sought to be
prevented by the law defining the offense.
Witch hypo. Suppose X creates a potion to kill witches, believing they are not people. X then
administers this potion to four people and one dies (she is a witch). Is he guilty of homicide? That is,
does X's belief that a witch is not a human being matter?

Katz: reasonableness of belief is relevant to recklessness or negligence cases only, not
intentional killings.

No - he had purpose to kill a witch, a witch is human being. Homicide is killilng a human being.
Since it was a purposeful killing, X's belief that witches are not people is immaterial.

So, under 2.02(6), purpose to kill is part of homicide statute, and the condition - the belief that
witches are not human - does not negative the harm sought to be prevented by the statute.
STATUTORY INTERPRETATION
What elements does a mens rea term modify?

Identify the material elements of each crime (nature of the conduct, attendant circumstances, and
result), and determine the mens rea that would be required if the MPC’s general principles of
interpretation were applicable; e.g., § 2.02(2)-(4).

First step: § 2.03(3): This provides for instances “when the culpability sufficient to establish a
material element of an offense is not prescribed by law.” In such cases, the proper mens rea element
“is established if a person acts purposely, knowingly, or recklessly with respect to each material
element of the offense.”

Second step: § 2.02(4): This states “when the law defining an offense prescribes the kind of
culpability that is sufficient for the commission of an offense, with out distinguishing among the
material elements thereof, such provision shall apply to all the material elements of the offense,
unless a contrary purpose plainly appears.”

Ex: NY burglary statute (CB 213). Statute reads: “a person is guilty of burglary in the second degree
when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein,
and when ... the building is a dwelling and the entering or remaining occurs at night.” What is the
requisite mens rea with respect to entering the building at night? What is the requisite mens rea with
respect to the dwelling status of the building?

Step 1: 2.02(3) does not apply b/c the statute states that “knowingly” entering a building with
“intent” to commit a crime suffices to establish a material element of the offense.

Step 2: 2.02(4) dictates that we generalize the kind of culpability that is sufficient for the
commission of an offense to all the material elements of the offense, unless a contrary purpose
plainly appears. In this case, the statute mentions both “knowledge” and “intent” as requisite
mens rea. Which term – if any – do we generalize?

Extra step: Katz said to look at “purposely” as defined in MPC 2.02(2)(a). It seems that the
MPC “defines away” the distinction between “knowledge” and “intent,” at least with respect to
attendant circumstances.

So, in this example, knowledge - prescribe by this statute - must apply to all elements of cimre
(building, dwelling, nighttime). Must be knowledge of all three.
GENERAL/SPECIFIC INTENT AND MPC
1) Specific Intent. Identifies those actions that must be done with some specified further purpose in
mind (a purpose to some objective, like burglary or assault w/ intent to kill).
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2) General Intent. Identifies those crimes where it is sufficient to convict when D did what in ordinary
speech would simply be called an intentional action (like trespass, so long as actor knew that the
nature of his acts would make him guilty; or simple battery).
3) Lining up examples
Specific Intent
General Intent
Burglary
Trespass
Assualt w/ intent to kill
Simple Battery
4) Another usage of specific intent refers to crimes that require actual knowledge (subjective
awareness). If no actual knowledge requirement, then it would be a general intent crime.
a) Ex. Statutory rape as general intent crime. To convict, must not prove dirty old man knew girl
was only 17.
So general intent crime, under MPC, is a crime that makes negligence or recklessness sufficient.
Mistake of Fact




Witchcraft
Prince
Olsen
Feola
2.02(6)
2.04(2)
213.6(1)
1.13(10)
See "Conditional Intent"
Mistake of Fact -- MPC § 2.04(1)-(2). Ignorance or Mistake.
1) Ignorance or mistake is a defense when it :
a) negatives the existence of a state of mind that is essential to the commission of an offense; OR
b) establishes a state of mind that constitutes a defense under a rule of law relating to defense.
2) Comments
a) "It is impossible to assert that a crime requiring intention or recklessness can be committed
although the accused labored under a mistake negativing the requisite intention or recklessness."
(Glanville Williams)
b) If negligence is the culpability level for an element of a crime, then mistake is only an excuse if it
is a reasonable mistake. Reasonableness requirement is not present for elements of crime that
have culpability levels of purposefully or knowingly.
c) The question of whether ignorance or mistake are excuse is best focused on specific elements of
the crime and their attendant culpability levels.
SL Crimes

A mistake of fact never negates criminal responsibility for violating a SL offense. By definition, a
SL offense is one that does not require proof of mens rea. So, the absence of any mens rea to negate
necessarily precludes the use of this defense.
MORAL WRONG DOCTRINE -- PRINCE

General Rule

a person who knowingly performs a morally wrong act assumes the risk thereby that the factual
circumstances are not as they reasonably appear to be and that, therefore, his conduct is not only
immoral but also illegal.

Analysis
a) Was the actor’s mistake of fact reasonable or unreasonable? If it was the latter, the usual mistake
rule applies, and he may be convicted.
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b) If mistake was reasonable, look at the facts from the actor’s perspective.
c) Court must evaluate the morality of the actor’s conduct, based on the facts as the actor believed
them to be.
Application -- Regina v. Prince
CB 226
Bramwell's Concurrence

D was convicted for taking unmarried girl under 16 out of possession and against will of her
father, which violated a statute. Jury found that: 1) girl - 14 - told D she was 18, 2) D honestly
believed her; AND 3) D's belief was reasonable.

Held that where the crime is per se wrongful act, a reasonable but mistaken belief in a particular
fact is not a defense.

Rule. Where a person commits an act that is in itself wrongful, and does not know that his act
violates a statute, that person is still liable under that statute for (his wrongful act).

Where a person takes a girl out of her father's possession, not knowing whether she is or is not
under 16, that he is guilty of a wrong. When be believes, but erroneously, that she is old enough
for him to do a wrong act with safety, he is also guity.

Affirmed.
LEGAL WRONG DOCTRINE -- OLSEN

D is guilty of the more serious criminal offense X, despite a reasonable mistake of fact, if he would be
guilty of the different, less seroius crime Y, if the situation were as he supposed.

Ex. Looking at the facts from Olsen’s perspective, he engaged in sex with a minor under 18 years of
age. Under the legal-wrong doctrine, however, he was convicted of the more serious offense of sex
with a minor under 14 years of age.

Criticism. The legal wrong doctrine authorizes punishment based on the harm that an actor caused –
the actus reus of the greater offense – while it ignores the fact that the actor’s mens rea was at the
level of the lesser crime.
Application -- People v. Olsen
CB 230

Shawn was under 14. D asked to enter trailer, and Shawn refused. Later, entered and D had sex
with Shawn. Other eivdence suggested that Shawn willingly had sex. Trial court found D guilty
of statutory rape with someone under 14. D had argued that he thought Shawn was under 18 but
above 14 (a less serious offense).

Held that a reasonable mistake as to the victim's age is not a defense to a charge of statutory rape.

Rule. Where there is strict liability for criminal punishment, a defense of reasonable mistake is
not available.

"Mistake of fact relating only to the gravity of an offense will not shield a deliberate offender
from the full consequences of the wrong actually committed."

Affirmed conviction.

Majority view. Mistake as to age, even if reasonable, is not a defense to statutory rape.

Minority view. Substantial minority of states now allow mistake as a defense.
Material v. Jurisdictional Elements of a Crime

Culpable mental states need only be proved as to material elements of crime, which does not include
jurisdiction or venue. However, controversies arise over whether an element that serves jurisdictional
purposes also serves purposes that require it to be treated as a material element.

Sometimes issues arise when elements that serve jurisdictional purposes also come into play with
“material” elements of a crime.

US v. Feola. Ds attempted to rob several men who presented themselves as drug buyers (they were
actually federal agents). Ds were charged with assaulting federal officers. Sup Ct held that the
“federal officer” element of the offense was jurisdictional only and therefore mistake of fact was no
defense.
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Ignorance of Law


Generally, Ignorance of the law is no excuse.
That is - unlke mistake of fact - an actor’s ignorance or mistake of law does not negate the mens rea
of an offense, b/c neither knowledge nor recklessness or negligence as to whether conduct constitutes
an offense, or as to the meaning of an offense, is ordinarily an element of that offense.
Exceptions to the general rule
1) Collateral Law
2.04(1)
i) Smith
2) Express Negation
???
i) Taaffe Cheek Liparota Ratzlaf
3) Reasonable Reliance (Official Statement)
2.04(3)
i) Marrero Cox Albertini
4) Fair Notice
i) Lambert

Reasonable Reliance and Fair Notice are true defenses. That is, D may be excused for violating an
offense.

In general, acquitting someone for mistake of law does not mean his subjective interpretation is right that the law means whatever he thinks it does. An acquittal would not contradict conclusion that he
violated law, just that it is unfair to punish a person for violating law if an ordinary law-abiding
person would have misunderstood the law in question.
1) Mistake of Law and MPC
a) MPC § 2.04(1). "Ignorance or mistake as to a matter of fact or law is a defense if it negatives the
purpose, belief, recklessness or negligence required to establish a material element of the
offense."
b) MPC § 2.02(9). "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 the offense, UNLESS the definition of the offense or the
Code so provides (that it is an element)."
c) The principle that ignorance/mistake of law is no excuse has no application when circumstances
made material by the definition of the offense include a legal element. The principle applies to
the particular law that sets for the definition of the crime in question. Knowledge of this law is
not part of the crime, and so ignorance/mistake of that law is not a defense (under Code and
common law).
Parsing 2.02(9)
a) Neither knowledge nor recklessness or negligence (collectively, 'awareness') as to whether
conduct constitutes an offense OR
i) whether you know what you are doing is wrong
b) Awareness as to the existence, meaning or application of the law determining the elements of an
offense
i) whether you know the law that defines what you are doing as wrong
c) is an element of such offense,
d) UNLESS the definition of the offense or the Code so provides.
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COLLATERAL LAW EXCEPTION

Ignorance of law is an excuse when circumstances made material by definition of offense
include a legal element.

The principle applies to the particular law that sets for the definition of the crime in question.
Knowledge of this law is not part of the crime, and so ignorance/mistake of that law is not a defense
under MPC or at common law.
Regina v. Smith
CB 262
a) Guy put panels on floor and walls in his apt. Later, ripped them out. Law makes any fixtures
installed by T property of L. Statute says guilty if you 'intend to destroy property of another'. He
did not intend to destroy another's property, he intended to destroy what he believed was his
property.
b) Held that b/c he thought he was destroying his own property, he cannot be guilty of destroying
another's property.
c) Rule. Ignorance of a civl law collateral to the criminal law under which X is convicted is an
exculse.
EXPRESS NEGATION EXCEPTION
Regina v. Taaffe
CB 264

D thought he was carrying money. D though carry money was illegal. It was not. In fact, he was
carrying drugs. He did not know this. Innocent.

The mens rea is knowingly importing prohibited goods. D is to be judged on the facts as he
believed them to be, and under them (carrying money) no offense was committed.

Note: D would be guilty under Prince for his guilty mind.
Cheek v. United States
CB 265

Facts
a) D was convicted for felony and misdemeanor related to his failure to pay taxes. Both the statutes
had a willfulness requirement. At trial, D argued as a defense that, based on information he
received from an anti-tax group, he believed that: 1) wages were not income, 2) he was not a
taxpayer within meaning of code, and 3) he believed tax laws were unconstitutional. D was
convicted.

Held:
a) Neither a good-faith misunderstanding of the law nor a good-faith belief that one is not violating
the law must be objectively reasonable to negate a statutory willfulness requirement.
b) D's view about the validity of a statute is not relevant to the issue of willfulness.

Reasoning
a) The standard for the statutory willfulness requirement in tax cases is the "voluntary, intentional
violation of a known legal duty."
b) To prove willfulness, government must prove that law imposed a duty on D, that D knew of the
duty, and that he voluntarily and intentionally violated that duty. This showing is necessary b/c
one cannot be aware of a legal duty and also be ignorant of it, misunderstand the law, or believe
that the duty does not exist.
c) D's claim that a good-faith belief that income tax law is unconstitutional and thus could not
legally impose any duty upon him of which he should have been aware is unsound. Awareness
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

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of unconstitutionality indicates full knowledge of the provisions at issue and a subsequent
conclusion that those provisions are invalid and unenforceable.
Dicta. The more unreasonable the belief, the more likely the jury will find that D merely disagreed
with known legal duties and will thus find government has carried burden of proving knowledge.
Remanded
Liparota v. U.S.
CB 268

Ruling on food stamp fraud statute. Users subject to find for knowingly using stamps in stores that
are not in the program or charge higher than "prevailing prices."

Held that fed must prove that D knew of the regulation that his conduct violated. To interpret the
statute otherwise would criminalize a broad range of otherwise innocent conduct; e.g., purchasing
from a store that charged higher than "prevailing prices."
U.S. v. Ratzlaff
CB 270

D structured a transaction to pay a casino debt without triggering bank reporting requirement. D knew
there was a statute, but did not know that structuring violated it. Statute said that it was a crime to
structure transactions to avoid the statute. Held that prosecution must prove both knowledge of
bank’s reporting requirement and knowledge that structuring was a criminal offense.
REASONABLE RELIANCE EXCEPTION

MPC 2.04(3)(b). A belief that conduct does not legally constitute an offense is a defense to a
prosecution for that offense…when person acts in reasonable reliance upon an official statement of
the law, afterward determined to be invalid or erroneous contained in:
(1) A statute or other enactment
(2) A judicial decision, opinion, or judgment
(3) An administrative order or grant of permission
(4) An official interpretation or the public officer or body charged by law with responsibility
for interpretation, administration or enforcement of the law defining the offense.

Comment. Defense afforded by this section would normally be available to D only once. After a
warning he does not have a reasonable basis for belief that what he did is legal.
People v. Marrero
CB 257

Held that D's personal misunderstanding of the statue does not excuse his criminal conduct.

Rule. The "official statement" mistake of law defense does not include people's misinterpretation of
statutes: this defense only covers reliance on a statute that in fact authorized the conduct in question.

D, a federal corrections officer, was arrested for unlicensed possession of a loaded pistol, in violation
of NY penal law. Statute exempted peace officers, but meant to apply only to state officers. D was
tried and convicted, court rejected argument that he reasonably believed exemption applied to him.

Reasoning

People's erroneous interpretations of statutes are outside the mistake of law defense, and are not a
defense to criminal liability. Policy: if this were accepted, the "official statement" exception to
the mistake of law rule would swallow the rule itself. It would allow people to escape criminal
liability b/c their subjective understanding of law was wrong. It would then work for both goodfaith mistaken Ds and for wrong-minded individuals looking for a defense.

Decision based on MPC § 2.04 approach to mistake of law.

Affirmed (denial of instruction as D argued)
Johannes de Silentio
Criminal (Katz)
Spring 1999
Page 23 of 64
Cox v. Louisiana
b) Rule. If a statute has a vague meaning, then a public official may interpret to have a certain
meaning for the concerned party. That party may not be later punished for reliance on that
determination.
c) In this case, a sheriff told civil rights protestors that 'near' (the vague or imprecise term) meant
across the street from the courthouse. Later conviction under the statute defining near was
invalidated on due process grounds.
United States v. Albertini
CB 270
1) Fact Timeline
a) Albertini 1. D was convicted of violating a bar order commanding him not to protest on a naval
base. Convicted under a federal statute, but CCA reversed on FA grounds.
b) Albertini 2. D protested a lot again on the base, which violated another bar order. Prosecuted
again. This is b/f Sup Ct granted cert on Albertini 1.
c) Sup Ct reversed CCA in Albertini I - FA did not preclude conviction.
d) D prosecuted for Albertin 2, and obtained conviction.
e) D appealed conviction for second set of protests, arguing that due process precluded retroactive
application of Sup Ct's decision in Albertini I.
2) Held that the reasonable reliance exception to the mistake of law doctrine applies to court decisions.
3) Reasoning
a) D effectively obtained a declaratory judgment from this court that the actions in which he
engaged were lawful. DP means that a person who holds the latest, controlling court opinion
declaring his activities constitutionally protected should be able to depend on that ruling until it is
reversed, OR at least until cert is granted.
b) D acted during a windows of time when he reasonably believed his acts were protected under
Albertini I. Otherwise, a kind of 'entrapment' by government would be sanctioned - conviction
for acts that government has told D are protected by FA against prosecution.
4) Note that Court did not discuss whether D would have been justified in relying upon Albertini I in
period between granting of cert and b/f it was reversed.
5) Reversed conviction
FAIR NOTICE EXCEPTION

MPC 2.04(3)(a)

A belief that conduct does not legally constitute an offense is a defense to a prosecution for that
offense based upon such conduct when:

Subsection A. The statute or other enactment defining the offense: 1) is not know to the actor
AND 2) has not been published or otherwise reasonably made available prior to the conduct
alleged.

Subsection B. (Reasonable Reliance Exception)

Comment. Defense afforded by this section would normally be available to D only once. After a
warning he does not have a reasonable basis for belief that what he did is legal.
Lambert v. California
CB 274
1) Appellant convicted under CA statute requiring registration of convicts who have been convicted of
felonies in state, or of crimes in other states that would be felonies if committed in CA.
2) Held that where a person did not know of the duty to register and where there was no proof of the
probability of such knowledge, he may not be convicted consistently with due process.
Johannes de Silentio
Criminal (Katz)
Spring 1999
Page 24 of 64
3) Rule. Actual knowledge of the duty to register or proof of the probability of such knowledge and
subsequent failure to comply are necessary b/f a conviction under the ordinance can stand.
4) Reasoning
a) The statute is problematic b/c people are convicted b/c of their failure to do something of which
they have no notice (passivity). The severity lies in the absence of an opportunity either to avoid
the consequences of the law or to defend any prosecution brought under it.
b) Notice is a requirement of DP, which gives citizen the chance to defend against charges. On first
becoming aware of her duty register, she was given no opportunity to register. She could only
suffer consequences of failure to register - conviction and punishment.
5) Reversed conviction

Note. Lambert would apply to a situation in which the statute was published, but the prohibited
conduct itself would not alert an actor to the need to investigate whether there was a relevant
statute on the books.

Three concerns to prevent exception from swallowing up the rule:
a) statute punished an omission;
b) duty was imposed based on status, not activity
c) offense was wrong only because it was prohibited (malum prohibitum)
d) Notice is part of DP and is appropriate where person, wholly unaware of wrongdoing, is brought
b/f court in criminal case.
Strict Liability

Actus reus, no mens rea.
SL at Common Law

Mistake of age is not a defense in sex offenses with minors

Law of homicide - felony-murder and misdemeanor-manslaughter rules
EARLY CASES
United States v. Balint
CB 235

Ds demurred on ground that indicment did not charge that they knew they were selling prohibited
drugs. Held that such knowledge was not required by the statute.

In prohibition or punishment of particular acts, state may - for public policy - provide that people
commit those acts at their peril and may not plea in defense good faith or ignorance. Statutte
emphasizes social betterment rather than punishment of crimes as wrong.
United States v. Dotter weich
CB 236

D's company repackaged other companies' drugs for resale. Twice the drugs were improperly
labeled. D convicted under Food and Drugs Act, Court affirmed.

Act is intended to protect people from dangerous food and drugs: in an idustrial age they cannot
protect themselves.

D's prosecution is based upon legislation that uses penalties as a means of regulation: this type of
legislation dispenses with requirement of criminal conduct (awareness of wrongdoing). Places
burden on people like D in interest of larger good. This is a hardship for D, but compared to the
hardship to public if there were no such statute, it is preferable that D bear the hardship.
PEOPLE V. CEBALLOS
CB 846
Johannes de Silentio
Criminal (Katz)
Spring 1999
Page 25 of 64
1) D lived in a garage, and to prevent another robbery, he set up a trap gun to fire at the door when
anyone came in. Two unarmed kids entered, and one was shot in the face. Kid who was shot testified
that he was uncertain whether, upon gaining entry, he would steal anything. D was convicted of
assault with a deadly weapon.
2) Held that a person may not use a trap gun to protect his property while he is away.
3) Rule. Deadly force is never permitted in defense of property, even if it is the only means available to
prevent the loss. X cannot do automatically (thru setting up a spring gun) what X cannot do himself.
4) Reasoning
a) The shooting is not justified under state law b/c they are only justified when one is protecting his
property from someone who manifestly intended to commit a felony." Kid said he was not sure if
he was going to steal anything.
b) Also, felonies that "do not reasonably create a fear of great bodily harm" provide no cause for
such shootings.
5) Affirmed conviction.
MPC - you can never use a trap gun that is intended or known to cause death or serious bodily injury.
Common Law - if the intrusion is, in fact, such that a person - were he present - would be justified in
taking life or infiicting bodily harm with his own hands.
MORRISSETTE V. UNITED STATES
CB 237

D is junk dealer who entered bombing range, took spent bomb casings, flattened them, and sold them
to junkyard. Convicted of violating a SL federal statute that made it a crime to knowingly convert
government property.

Held that a person cannot be held criminally responsible on a strict liability basis for a codified crime
that at common law required proof of guilty mind.

Rule. Crimes - like stealing and larceny - that required a guilty mind at common law still require a
guilty mind when codified in federal statutes.

Reasoning

Congress ommitted an express intent requirement in the statute presented in this case b/c it knew
of the unbroken judicial practice of holding intent inherent in this class of offense.

Balint is good precedent on SL for regulatory crimes, but is not acceptable authority for
eliminating intent from offenses incorporated from common law.

The government's position - that intent is not a required element for this type of offense - would
have the following detrimental effects:

Easing prosecutorial burden for getting conviction

Strip D of enjoyed protections at common law from innocnece of evil purpose

Circumscribe freedom of juries.

When the statute does not mention a mental state, a mens rea requirement will be imputed.

Reversed conviction.

Recklessness is default mental position when a statute does not mention a mental state requirement.
STATE V. GUMINGA
CB 244

D, owner of restaurant, was charged under statute statute imposing vicarious criminal liability for
serving alcohol to a minor - waitress had served minor involved in an undercover police operation.
Johannes de Silentio
Criminal (Katz)
Spring 1999
Page 26 of 64
A conviction under this statute would also subjected him to a harsher punishment if he were later
convicted of a felony.

Held that the state statute, on its face, violates D's right to due process of law under 14th and
analgous state provisions. Only civil penalties would be constitutional.

Rule.

Where an offense is a true crime - where it involves moral delinquency or is punishable by
imprisionment or serious penalty - vicarious liability must be repudiated as a foundation for
criminal liability.

No one can be convicted of a crime punishable by imprisionment for an act he did not commit,
did not have knowledge of, or give express/implied consent to the commission thereof.

Reasoning

Due process analysis requires balancing public interest against private interest. In this case,
private outweighs public. While is provides additional detereence to violation of liquor laws,
affects personal liberty, damages his reputation, and gives rise to other future disabilities arising
from criminal prosecution for an act that D did either commit or ratify. Fines or license
suspension has these benefits without the negative ramifications.
Note on Vicarious SL

At least one state - NH - has held that strict liability in the parent/child relationship is unconstitutional
(State v. Akers, CB 247). Many states now have statutes that provide jail sentences for parents whose
childern are persistently truant.
STATE V. BAKER
CB 247

D appeals conviction for speeding: he argues that his cruise control got stuck in accelerate, which
caused his speeding.

Held that malfunctioning of cruise control, which led to violation of the statute, is not a defense to SL
crime of speeding. Engaging the cruise control was a voluntary act by D.

Rule. An unforeseen occurrence or circumstnace that is not caused by the person and that he could
not prevent is a valid defense to a SL crime.

Malfunctioning brakes or throttle would be a defense to an SL crime. However, engaging the cruise
control requires a voluntary act by D. Thus, D was an agent in causing the act of speeding.

Affirmed conviction.
Note - Related Area

State v. Miller (CB 250). Court affirmed DWI conviction of D who was not permitted to present
eivdnece that he did not know someone laced his drink with alcohol. Court said that statute created
SL with respect to presence of alcohol in the body.
THE SL DEBATE
Regina v. City of Sault Ste. Marie
CB 250
1) Arguments for absolute liability
a) Absolute liability is the most efificient and effective way of ensuring complaincee with minor
regulatory legistaltion. The social ends to be achieved are important enough to overrid
unfortunate consequence of punishing people who are not morally blameworthy. Justifications
for absolute liability in public welfare offenses:
i) Incentive to comply with the law and provide higher standard of care.
ii) Administrative Effiency. Proof of faulth is too great a burden in time/money.
2) Arguments against absolute liability
a) It violates fundamental principles of penal liability.
Johannes de Silentio
Criminal (Katz)
Spring 1999
Page 27 of 64
b) There is no evidence that a higher standard of care results from absolute liability. Why do more
than required if you know that - no matter how much you do - you will be liable no matter what?
c) People convic People convicted suffered the 'opprobrium of conviction'.
3) The problem is a false dilema between full mens rea and absolute liability. There is new authority
that suggests that where an offense does not require full mens rea, it is a good defense for D to prove
he was not negligent.
a) This rests on assumption that D oculd have avoided prima facie offense through exercise of
reasonable care, and is given a chance to establish that he did exercise such care.
b) Prosecution must prove beyond reasonable doubt D committed the act, and D must only show "on
the balance of probabilities" that he has a defense of reasonable care.

Suggests three categories of offenses

Mens rea required and must be proven by prosecution (by inference or evidence)

Criminal offenses - "wilfully, with intent, knowingly, intentionally

No mens reas required, act is prima facie offense, D has burden to prove reasonable care as an
excuse

Absolute liability

To determine if a crime fits here, look to:

Overall regulatory pattern of legislature

Subject matter of legistlation

Importance of penalty

Precision of statutory language

Canada has declared absolute liability uncons.
ZR-4 HYPO

Statute read: “ZR-4 levels shall not exceed level X... violation is a felony.” ZR-4 is supposed to be a
chemical that poses only slight risk if it exceeds level X. One day, the level exceeds X. Is this a SL
offense? No mental state is mentioned, but this does not always mean we are dealing with a SL
statute. Look to Morissette and said ask three questions to determine if this should be an SL crime:
a) Does it resemble a common law offense?
i) If no, this is strong evidence that it is a SL offense. In this case, there is little reason to believe
that this resembles a common law offense.
b) What is the severity of punishment? If the punishment isn’t that severe, this is evidence that it is a
SL offense.
c) What is the ease of compliance? If it’s fairly easy to comply with the statute then this is evidence
that it is a SL offense.
The Porn/FA Exception to SL?

United States v. United State District Court. D's prosecuted D for making a porno featuring 16-year
old Traci Lords. Charged with violating a federal statute that explicitly prohibited underage porn.

Held that Ds had affirmative defense if they establish by clear and convincing evidence that they did
not know - and could not reasonably have learned, that Traci was under 18.

Otherwise, FA guarantee of free expression would be impaired - there would be no safe way to
engage even in lawful expression.
MPC 2.05

Attack on SL in penal law, whenever the offense carries possiblity of criminal conviction, for which a
sentence of probation or imprisonment may be imposed.
Johannes de Silentio
Criminal (Katz)
Spring 1999



Page 28 of 64
When conviction rests upon SL basis, the grade of the offense is reudced to a violation, which is not a
crime and under §§ 1.04(5) and 6.02(4) may result in no sentence other than a fine, or fine and
forefeiture, or other civil penalty.
Applies to all regulatory crimes and all crimes defined in penal code itself. This is necessary to
effectuate principle of no criminality, probation or imprisionment for SL offenses.
Crime does and should mean condmenation - no court should have to pass that judgment unless it can
declare that D's act was culpable.
The Mens Rea of Homicide
Introduction
General definitions - Common Law and MPC

Murder. Unlawful killing with malice aforethought (English definition, some states definition)
MPC § 210.1 Criminal Homicide

Guilt if purposely, knowingly, recklessly or negligently causes the death of another human being.

Categories are murder, manslaughter, or negligent homicide

§ 210.2 Murder
(felony in first degree, permits death sentence)

§ 210.3 Manslaughter
(felony in second degree)

§ 210.4 Negligent Homicide
(felony in third degree)
Premeditation-Deliberation Formula
1) The Legislation Grading of Intended Killings
a) The first division of murder into degree was in this statute:
i) "All murder…by willful, deliberate and premeditated killing, or murder-felony shall be
deemed m1. All other kinds are m2."
ii) On its face, the statute may suggest a difference between premed/delib and intent - where m1
is premed and m2 is only intent. This is actually a false distinction: premed/delib is
intentional.
iii) This is the statute in Carrol.
2) Three views on "wilful, delib, premed":
a) Most jurisdix understand "wilful, delib, premed" to mean the division of murder into degress is
meant to separate the most heinous form of murder, which deserve the most severe penalties,
from those which although intentional lack the gravity associated with m1.
b) Some states treat "wilful, delib, premed"as independent elements of m1. Thus, a line is drawn
between spur-of-moment intention killing and cold-blooded killing (careful reflection).
c) A few courts expressly treat the terms with little import - it is a single mental state amounting to
the intent to kill.
3) "Deliberate"
a) This term bring to m1 idea that most heinous killings are those that are cold-blooded.
b) It is possible to premeditate without deliberating. Premed is generally quantity, but delib is the
quality of the thought.
Johannes de Silentio
Criminal (Katz)
Spring 1999
Page 29 of 64
COMMONWEALTH V. CARROL
CB 394

Facts

D was found guilty of first degree muder and sentenced to life for killing his wife after a
prolonged argument. His wife was mentally deranged and abused their children and yelled at him
alot. They argued b/f going to bed and he shot her. D said he felt like was not acting to shot her.
Convicted of m1.

Held that evidence does not support D's argument that his conviction be reduced to second degree
murder because the homicide was not premeditated or intentional.

Reasoning

Considers premed/delib the same as forming a specific intent to kill. Whether the premeditation
and the fatal act were within a brief or long space of time is immaterial if the killing was in fact
intentional, willful, deliberate, and premeditated.

The evidence shows that D - extremely provoked by his wife - deliberately, willfully and in a
premediated fashion grabbed the gun off the headboard and shot her.

If D's conviction were change to second degree murder, then emotional impulse would become an
excuse for first degree murder. Every homicide involves emotional impulse.

Affirmed m1 conviction.
PEOPLE V. ANDERSON
CB 399

Facts

D convicted of m1 and sentenced to death for stabbing 10-year old girl 60 times while under the
influence (would have failed driving sobriety test).

Held that evidence was insufficient to support m1 conviction based on premed/delib theory.

Reasoning

There was no evidence to support that D intended to kill girl, and the manner of killing did not
show that the wounds were deliberately calculated to result in death.

Departure from Carrol. M1/m2 distinction means nothing if the required reflection was no
more than forming a specific intent.

M1 verdict under premed/delib theory is proper ONLY IF the slayer killed as a result of careful
thought - like he made plan and carried it out coolly.

Court reduced conviction from m1 to m2, and so modified, affirmed.
Juxtaposition of Carrol and Anderson

Carrol
affirmed M1

Anderson
reversed M1, changed to M2

Anderson intuitively seems like a more heinous crime. Why difference in disposition?

Carrol
premed is irrelevant to culpability

Anderson
premed is relevant to culpability

MPC discounts premeditation - the above juxtaposition shows why.

Premed v. Spontaneous but intentional

Which is worse depends the nature of each specific case.

Premed
uncertainty
or
deliberate planning

Spontaneity
passion
or
clearly formed intent

Counter to premed doctrine is mercy killing example.
Johannes de Silentio
Criminal (Katz)
Spring 1999
Page 30 of 64
Notes

Majority View. Courts adopt Carrol instead of Anderson and say premed is basically formation of a
specific intent to kill, but reject notion that "no time is too short." There must be "some degree of
preexisting reflection."

Premed/delib can take place in time it takes to pull trigger. (Young v. State)

In Commonwealth v. O'Searo, the court made the following observations:

Distinction between m1 and m2 is the presence of a specific intent to kill. This distinction does
not depend upon the degree of reflection.

Requirement of premed/delib is met whenver there is a conscoius purpose to bring about death.

So, there is really no differnce between premed/delib and specific intent to kill. (State v.
Schrader)

Courts that follow Anderson insist that having chance to deliberate is not evidence that D did
deliberate. Showing of deliberation is necessary for premed (b/c you can premed w/o delib).
Otherwise, any form of killing taking more than a moment would result in finding of premed and thus
lead to m1. (State v. Bingham)
Provocation
THE NATURE OF THE REQUIRED PROVOCATION


Excuse - understand why X killed Y, but Y did not deserve to die.
Justification - Y deserved to die b/c of the provoking behavior.
a) Provocation Definitions.
i) PA Statute on Vol Man (common law). CB 390
(1) Partial justification, partial excuse.
b) MPC § 210.3
i) Partial excuse, no justification.
c) Two different ways to get a slight reduction in guilt (vol man instead of murder). Provocation is
not a full justification - that is self-defense, which is exculpatory.
Common Law

Traditional categories in which provocation is recognized to mitigate murder to manslaughter:

extreme assault or battery upon D

mutual combat

illegal arrest

injury or serious abuse of a close relative

sudden discovery of spouse's adultery

Common Law Defense of provocation contains four elements:

actor must have acted in heat of passion (not necessarily just anger);

the passion must have been the result of adequate provocation;

the actor must not have had a reasonable opportunity to cool off; AND

there must be a causal link between the provoaction, the passion, and the homicide.
Modern View

What constitutes adequate provocation should be left to the jury to decide.
Johannes de Silentio
Criminal (Katz)
Spring 1999
Page 31 of 64
GIROUARD V. STATE
CB 411
1) Held that mere words were not sufficient provocation to cause a reasonable man to stab another and
thus permit mitigation to manslaughter. Majority View.
2) Facts
a) D had bad relationship with wife - in one argument she graphically insulted his sexual ability and
said she did not love him. D stabbed her 19 times and then slit his own wrists, but not enough to
kill himself. Cops at scene said he was unconcerned about his health and was regretting what he
did. Convicted of m2.
3) Previous cases in many jurisdix have held that words alone are not adequate provocation to incite
reasonable person to use deadly force.
Cooling Time

Generally, too long a lapse of time between provocation and the act of killing will render provocation
inadequate, and will deprive D of right to instruction on voluntary manslaughter. However, this is not
a hard and fast rule.

Majority View. Adequcacy of provocation (for mitigation to manslaugher) is an evidentiary
consideration to be evaluated by jury under all circumstances.

Example - People v . Berry. D waited for victim 20 hours b/f killing her. D was entitled to man
instruction, b/c jury could find D's heat of passion resulted from prior course of provocative
conduct by victim: thus, the wait aggravated rather than cooled the D's agitation.

Rekindling is the minority view. That an act right b/f killing reignites provocation of earlier act.

Example of majority view. State v. Gounagias. D was sodomized two weeks b/f killing his rapist,
but was repeatedly mocked during that time. Murder conviction affirmed on appeal - no
rekindling.
Victims other than provoker

Majority View. Where someone has been provoked and mistakenly kills someone he thought was the
provoker, a vol man instruction is required (State v. Mauricio).

There is no provocation defense to charges of murdering nonprovoking relatives or bystanders

Indeterminate area. Defendants who elicit provocative conduct and then act upon the provocation.
They may or may not be entitled vol man instruction.
MAHER V. PEOPLE
CB 416
1) Held that Jury should be permitted to consider manslaughter issue whenver evidence shows any
circumstances - whether conduct or words alone - that might cause a reasonable person to lose selfcontrol. Minority View.
2) Facts
a) D killed man who believed had adulterous affair with wife that on morning of murder. He saw
them go into woods together and was told that they had sex by another person.
3) Dissent Majority View.
a) Evidence of provocation should only be considered when the cause of the provocation occurred in
presence of D. Should not allow provocation where the person only heard of the conduct or
conceived of the conduct, as in this case.
4) Disposition.
Johannes de Silentio
Criminal (Katz)
Spring 1999
Page 32 of 64
a) Changed conviction from murder to manslaughter (evidence of provoation, if allowed trial, would
have permitted reasonable jury to conclude it was manslaughter).
THE OBJECTIVITY OF THE STANDARD

Common Law and MPC require that D's response to the disturbing circumstances be reasonable.
DIRECTOR OF PUBLIC PROSECUTIONS V. CAMPLIN
CB 427
Defines the "reasonable person" to whom the provoked D is compared

Reasonable man standard should be explained to jury as a person:

having power of self-control expected of an ordinary person of the sex and age of the accused,
AND

sharing the relevant characteristics of the accused (those that the jury thinks would affect the
gravity of the provocation);

Explain that question is not merely whether the reasonable man would be provoked in similar
circumstances, but whether reasonable man would react to external provocation as the accused did.

An outcome of this decision is that words alone might be sufficient for mitigation. The gravity of
verbal provocation may depend on characteristics of person to whom insult is addressed (race,
physical handicap, shameful incident).
Notes

Camplin incorporates the view expressed in MPC § 210.3(1)(b) (Manslaughter):

"A criminal homicide is manslaughter when a homicide which would otherwise be murder is
committed under the influence of extreme mental or emotional disturbance for which there is
reasonble 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."

Commentary. "Situation" includes emotional state, physical handicap, etc.; but not idiosynchratic
moral values. "Situation" also encompasses a gray area that permits differentiation from case to
case to determine whether aspects of an actor's situation are material for grading the offense.

The question is whether the actor's loss of self-control can be understood in terms that arouse
sympathy in the ordinary citizen. This question is left to jury in each separate case.
DIMINISHED RESPONSIBILITY

Entirely subjective - mental disorder or emotional instability as a basis for partially excusing conduct.
This achieves closer relation between criminal liability and moral guilt.

However, DR - in achiveing the closer relation - has costs.

By judging person on his own terms, decreases incentive to behave as if he were normal.

Blurs message of law that there a minimum standard of conduct that all members of society must
follow.

Undercuts social purpose of condemnation by affixing condemnation in relativist fashion.

MPC rejects DR as a defense. However, it may fall under "emotional disturbance" of the
manslaughter section, which is distinct from external provoking events.

There are certain mental conditions that do not preclude moral depravity necessary to convict a
homicide. These are not part of the actor's "situation" (e.g., temper). Whether the condition is
material to grading the offense is determined case-by-case.
Johannes de Silentio
Criminal (Katz)
Spring 1999
Page 33 of 64
Felony-Murder Rule



Mens rea of underlying felony resulting in death provides basis for murder conviction without proof
of malice.
Authorizies strict liability for a death that results from a felony that is intentionally committed. Mens
rea requirement is met by the requirement for the underlying felony.
Causation Requirement. Act must be proximate cause and cause-in-fact.

Proximate causation means harm was natrual and probable consequence, or foreseeable
consequence, of criminal act. However, proximate cause can exist even though harm was
unforeseeable (Stamp).

REJECTED BY MPC. Instead, MPC replaces fel-mur by creating a presumption of recklessness and
indifference findings necessary for murder charge.

§ 210.2(b). "Criminal homicide constitutes murder when it is committed recklessly under
circumstances manifesting extreme indifference to the value of human life. Such
reklcessnesss and indifference are presumed if: the actor is engaged in or is an accomplice of, or
an attempt to commit, or flight after committing or attempting to commit robbery, rape, deviate
sexual intercouse, arson, burglary, kidnapping, and felonious ecape."

MPC insistence on finding of recklessness and indifference is a rejection of SL inherent in felmur rule. The presumption of those findings has the same pragmatic result as the fel-mur rule, so
the ALI was making a principled distinction in rejecting fel-mur.

Despite MPC, fel-mur exists in all states except NH.
States that have categories of felonies have modified fel-mur so that it applies only to certain
felonies. Done three principal ways:

Dangerous felonies (arson rape burglary kidnapping robbery) are the only ones on which m1felmur conviction can be obtained. Nondesignated felonies still trigger fel-mur, but offense will
only be m2.

Dangerous felonies are only felonies on which fel-mur conviction can be obtained.
Nondesignated felonies are only basis for manslaughter conviction OR cannot be basis for
homicide conviction.

Killing in course of felony that is otherwise culpable b/f it may constitute murder (e.g, D
recklessly caused death of victim).

Effect on prosecution. In each case, ask if D could be convicted of homicide w/o fel-mur.
a) Does not generate a different outome in:
i) Serne
468
ii) Pickepocket hypo 473
b) Generates different outcome in
i) Stamp
471
ii) Phillips
481
REGINA V. SERNE
CB 468

D set fire to house and shop (arson), which killed his own son. D indicted for murder.
Johannes de Silentio
Criminal (Katz)
Spring 1999

Page 34 of 64
Court held that any act known to be dangerous to life and likely in itself to cause death, done for the
purpose of committing a felony that causes death, should be murder.
PEOPLE V. STAMP
CB 471

D robbed a man, was traumatized by incident. Man collapsed and died of heart attack. Man was fat,
under pressure from work, and did not lead a healthy life.

Rule

The robber takes the victim as he finds him: fel-mur is not limited to those deaths that are
foreseeable. Rather a felon is held SL for all killing commited by him or his accomplices in
course of the felony.

As long as the homicide is the direct causal result of the felony, fel-mur applies wh1ether or not
death was a natural/probable consequence of felony. This is true so long as victim's condition
was not the only substantial factor in hastening his death.
Justifications for Fel-Mur?

Differences in result must be taken into account as part of actus reus if classfication and grading are
to be rational. Fel-mur reflects a societal judgment that an intentionally committed robbery that
causes death is qualitatively more serious than an identical robbery that does not.

Fel-mur is a simple, enforceable, and widely known principle that is likely to result in deterrence.

Counterpoint. Data that suggets only .14% of felonies that qualify under fel-mur have deaths
associated with them. So what are you deterring?

Macaulay’s Criticism.

No man can so conduct himself as to make it absolutely certain that he shall not be so unfortunate
as to cause the death of a fellow creature.

Pick pocketers. You pick a pocket, and a fat man dies from a heart attack. You picket a pocket,
and a fat man lives. To treat these cases differently is as capricious as rolling the dice.

Retributivist

Fel-mur is hard to justify on this view. Procuding death w/o accompanying culpability of
murderer does not seem to require punishment deserved by a murderer.

However, intuition for fel-mur is on this view. Divide what happened in conduct that occurred
AND the result. From this, fel-mur is good b/c the outcome is the same regardless of the conduct
that occurred. Punishing for outcome.

Katz says this is faulty b/c of accidental or incidiental killing cases.

Even if you try to parse the death into these two parts, the mental outcome is different.
STATUTORY REFORM OF FELONY-MURDER RULE


Minority view. So killing that was related to arson can not become murder without a showing of
malice. People v. Aaron, and decisions like it, abolish fel-mur as a way to establish malice.
Majority view. Subsequent re-enactments of homicide statute demonstrated an intent to codify felmur rule. Fel-mur cannot be abolished by common law interp.
People v. Aaron
(MI Sup Ct 1980)
CB 479

Fel-mur does not estabilsh malice. It is no longer acceptable to equate intent to commit a felony with
an intent to kill or to do great bodily harm, or to disregard willfully the likelihood of behavior is to
cause death or great bodily harm.
Johannes de Silentio
Criminal (Katz)
Spring 1999

Page 35 of 64
Held that in order to convict a D of murder, it must be shown that D acted with intent to kill or to
inflict great bodily harm, OR with a reckless disregard of likelihood that his behavior has a natural
tendency to cause death or great bodily harm.
LIMITATIONS ON FELONY MURDER RULE


Inherently Dangerous Felony
Merger (felonies independent of the homicide)
THE INHERENTLY DANGEROUS-FELONY LIMITATION
People v. Phillips
CB 481

Deceased had cancer in eye. Medical doctors said only chance to save/prolong life was removal of
eye. D, chiropractor, said that he could cure deceased w/o surgery. Decease died six months after D's
treatment. D convicted of m2 under fel-mur rule. The jury instruction on fel-mur reflected
prosecution's theory that D's conduct amounted to grand theft by false pretenses. Jury convicted
based on finding that D committed felony of grand theft.

Court held that jury instruction on fel-mur b/c the underlying felony of grand theft is not - in the
abstract - inherenly dangerous to life, which is a necessary condition for application of fel-mur.

Rule

Only such felonies as are in themselves 'inherently dangerous to human life' can support the
application of the felony-murder rule. When assessing peril to human life inherent in any felony,
look to elements of that felony in the abstract, not in the particular facts of the case.

Reasoning
a) Three instructions to jury
i) Proximiate cause was reckless act
ii) Circumstances of proximate cause show an abandoned and malignant heart
iii) Grand Theft
b) Argument by prosecution was that:
i) Instruction 3 presumes a finding of 1 and 2, so IF jury decide to convict based on both
instructions 1 and 2, THEN jury did not need to convict on 3 for fel-mur conviction.
c) Response by court is that, asssuming jury convicted by 3, you cannot assume 1 and 2 were also
found by jury. Grand theft does not mean recklessness.
i) So he was guilty of grand theft - he knew that the treatment was bogus - but kid was was
doomed to die anyway: he though his treatment was no worse than the opportunity forgone
(medical treatment) by paying for his services. He did not think he was doing any harm
(anything worse than medical treatment), thus no recklessnesss, no homicide.
ii) So convicting on instruction 3 does not mean intsructions 1 and 2 were necessarily believed
by jury when they conviction. 3 is indepednet of them and does not embody them. Can
convict for grand theft w/o recklessness necessasry for homicide conviction: in fact, record
does not show that grand teft necessarly means malice required for murder existed.

Reversed conviction for m2 under fel-mur rule.
Majority View. Other cases have supported the conclusion that the underlying felony should be
considered in the abstract to determine if it is inherently dangerous.

Thus, abstract appropach encompasses crime in facts malicious and expands it to crimes
theorhetically malicious.
Johannes de Silentio
Criminal (Katz)
Spring 1999
Page 36 of 64


After Phillips, there is a reconfiguration of debate on how to apply the abstract approach. Look to
supercategory or subcategory of crime in the abstract. Defense will want former, Proseuction will
want latter. This debate mirrors specific/abstract debate.
People v. Satchell. Possession of shotgun by ex-felon was not inherently dangerous, so underlying
statute could not ground felony-murder.
MERGER (LIMITATION TO FELONIES INDEPENDENT OF THE HOMICIDE

Merger is majority view, but a significant minority of states do not have merger.

Why merger? Without merger, felony murder rule would be in conflict with the homicide statute.
In close cases (i.e., where the crime approaches homicide), where there would already be a
homicide prosecution, do not want fel-mur. In these situations, fel-mur would interfere with
order of homicide statutes.
People v. Smith
CB 488

D beat her kid severely as a form of punishment and it died. D convicted of m2 and felony child
abuse: m2 arose from child abuse conviction under fel-mur.

Rule

A second-degree felony-murder instruction may not properly be given when it is based upon a
felony that is an integral part of the homicide and which the evidence produced by the
prosecution shows to be an offense included in fact within the offense charged. (Ireland)

If the felony was included within the facts of the homicide and was integral thereto, a further
inquiry is required to determine if the homicide resulted from conduct for an independent
felonious purpose as opposed to a single course of conduct with a single purpose. (Burton)

Reasoning

Application of fel-mur rule is barred where the purpose of the conduct was the very assault that
resulted in death.

In this case, the purpose of the child abuse was the very assualt that resulted in death. Thus, the
underlying felony - child abuse - was an integral part of and included in fact in the homicide.
Notes on Smith

Under merger, turning a felony conviction into a murder conviction, where the death resulting from
the underlying felony is integral to that felony, is bootstrapping.

Wilson. An instruction that intent to assault makes the entry burglary AND that the burlgarly
rasies the homicide resulting from the assault to first degree murder without proof of malice is
bootstrapping.

An odd application - Sears (in Smith)

There would be merger for man who intends to assault both and kills one or both. Therefore,
court uses merger for man who inadvertantly kills another while intended to assault another.

This is anomaly from application of fel-mur in Wilson (the standard case). Usual effect of felmur is that more heinous crime is merged and less heinous crime is not. Here, court is saying b/c
more heinous crime is merged, the less heious crime should be as well.
Paradox of Felony-Murder

If act is too close (in its nature) to homicide, merger kicks in and no fel-mur.

If act is further away (in its nature) from homicide, fel-mur applies and no merger.

So, less serious felonies become murder chargers and more serious felonies do not become murder
charges. The more the underlying felony approaches murder, the more likely the resulting homicide
merges into it: thus, conviction for homicide is less likely
Johannes de Silentio
Criminal (Katz)
Spring 1999

Page 37 of 64
Ex. Parents who beat their kids to kill them only get convicted of felony abuse. Parents who beat
their kids to discipline them, and then the kid dies, get convicted of murder. So, the real killers are
convicted of a lesser crime under merger.
Causation

See MPC § 2.03
Cause-in-Fact

In order to make this determination, courts traditionally apply the “but-for” test: “But for D’s
voluntary acts, would the social harm have occurred when it did?” If the answer is no, i.e., the social
harm would not have occurred when it did but for D’s conduct, then D is a cause-in-fact of the result.
Problems with the But-For Test

Wrongful Procreation Problem. Suppose a man, knowing he has AIDS, impregnates a woman, thus
infecting both mother and child. Did the man murder the woman? Did he murder the child? “Butfor” the man’s act, the woman and child would not have died. Katz noted, however, that “but-for” the
man’s act, the child would not be alive either. So, while the father meets the cause-in-fact
requirement, we must question the “but-for” test’s usefulness here.

Pre-emption Problem. The desert victim. Henri plans a trek through the desert. Alphonse, intending
to kill Henri, puts poison into his canteen. Gaston also intends to kill Henri, but has no idea what
Alphonse has been up to. He punctures Henri’s canteen. Henri (the desert victim) dies b/c the
poisoned water drains out – thus he dies of thirst. Is Alphonse (the poisoner) morally culpable? It
seems like his act doesn’t meet the “but-for” test. As for Gaston (the driller), didn’t he actually
prolong Henri’s life?

Dilemma (still a doctrinal puzzle)

Alphonse. He got rid of poision, so he saved Henri from death by posion.

Gaston. He did not drink it b/c it drained out.

If neither had done anything, Henri would still be alive.

Argument. Driller did not drikll hole to save man, but to kill him.

Over-determination Problem. Imagine two independent assailants simultaneously administer a fatal
blow to the victim. Under the traditional “but-for” test, the two assailants may be convicted of
murder, but no more. An alternative formulation of the “but-for” test may seem to offer a way out. It
requries not only that “but-for” D’s act the victim’s injury would not have happened, but it requires
that “but-for” his act the victim’s injury would not have happened as it did. This test also helps in
the (similar) preemption problem above. Applying this version of the but-for test, both assailants
satisfy the causation requirement.

Criticism. Makes a lot of people liable we don't want to. E.g., a nurse turns off lights, guy dies.
She change circumtances o his death and is thus liable (but for turning of light, he would not have
died in dark).

Statistical Effects Problem. A corporation is looking for a site on which to build a nuclear power
plant. Let us suppose building the power plant in location X is negligent, b/c it produces 20 “extra”
cancer cases. In other words, suppose 100 deaths would have occurred if the executive had prudently
located the site, but his decision results in 120 deaths. Is the executive liable for murder? Doesn’t he
meet the but-for test? In this situation, the but-for test is not enough, b/c it doesn’t do an adequate job
of sorting, or holding the executive liable for only the extra deaths.
Proximate Cause
Johannes de Silentio
Criminal (Katz)
Spring 1999




Page 38 of 64
The sole point of the but-for test of cause-in-fact is to identify candidates for responsibility for an
event. The analysis for “proximate causation” is to determine who among these candidates should be
held causally accountable for the harm.
Directness. According to Dressler, the closest thing to a bright line rule in the realm of proximate
cause is this: an act that is the direct cause of social harm is also a proximate cause of it.
Foreseeability. In general, if an act is not foreseeable, it is probably not the proximate cause.
Katz does not think proximity is a good proxy for mens rea.
Omissions as Causes

Law is settled that omissions can be legal causes of results – courts have found a person’s failure to
act (in the presence of a duty and an ability to act) to be legal cause of a prohibited result - like death.
Causation -- Foreseeability and Coincidence
Why is foreseeability used in intentional homicides?

A way of establishing whether mens rea is met.
Why is foreseeability use for reckless (unitentional) homicides?

If risk that materializes is not w/in risk of behavior that may have caused death, then behavior fails
proximate causation.
PEOPLE V. ACOSTA
CB 548

Two police helicopters chasing D ran into each other. D convicted of m2 for deaths of pilots.

Held that D's conviction was proper: the collision was a foreseeable result of the conduct.

Rule. Only highly extraordinary results are outside proximate causation necessary for criminal
liability.

Reasoning. There is an appreciable probability that one of the pursuers, in the heat of the chase, may
act negligently to catch the quarry.

Dicta. Proximate cause is more common sense than pure logic

Reversed conviction.
PEOPLE V. ARZON
CB 551
1) D was indicted for two counts of m2. Set fire to a couch that caught a building on fire. Another
independent fire started in the building. The smoke from both fires killed a fireman. D moves to
dismiss the indictment for m2.
2) Held that there was a causal link between undelrying crime and the death.
3) Rule - Kibbe Doctrine.
a) X's conduct need not be the sole and exclusive factor in the victim's death.
b) X is criminally liable if his ocnduct was a sufficiently direct cause of death, AND the ultimate
harm is something that sholuld have been foreseen as being reasonably related to the acts of the
accused.
4) Reasoning
a) Irrelevant that second fire contributed to death: it was foreseeable that firemen would respond,
which would expose them to life-threatening danger. The fire set by D was an indispensible link
the chain of events that lead to the victim's death.
Johannes de Silentio
Criminal (Katz)
Spring 1999
Page 39 of 64
b) At the very least, D's act placed the deceased in a position where they were vulnerable to the
separate and independent force of the second fire.
5) Motion to dismiss denied.
Hypo variation of Kibbe

A man is left beside road after mugging w/o glasses (legally blind). A plane lands on him. Muggers
want him to die from exposure. However, not liable for his death b/c he did not die in way the
envisioned. Is no liablity the correct conclusion? Yes - outcome they desisred as intended (death by
exposure) did not happen (death by plane), which means they did not intend death that happened.
PEOPLE V. WARNER-LAMBERT CO.
CB 552

Court subscribes to the requirement that D's actions must be a sufficiently direct cause of the
ensuing death before there can be any imposition of criminal liability. This standard is greater than
that required as a basis for tort liability.
Notes
1) Generally, D takes the victim as he finds him.
2) Wounds and Medical Maltreatment
a) Hale notes the year and day rule. D can be held liable for wound untreated, speeding up
impending death, etc.
b) If a death results from an unusual disease unforeseeably contracted by victim after assault, D is
presumably relieved of liability. True even when victim would not have contracted disease, but
for situation created by injuries.
c) However, if the disease produucing the death was contracted before D's assaults, D is still liable
for death.
d) Hall v. State (IN 1927)
i) It is not indispensible to a conviction that a wound be necessarily fatal and the direct cause of
death. If the wound caused the death indirectly through a chain of natural effects and causes
unchanged by human action, the person who inflicted the wound or injury is responsible.
ii) A person who inflicts a serious wound upon another, calculated to destroy or endanger his
life, will not be relieved of responsibility, even though unskilled or improper medical
treatment aggravates the wound and contributes to the death.
e) Regina v. Cheshire (UK 1991) - Medical Maltreatment
i) Act or omissions of a doctor treating the victim may be so extraordinary that they are acts
independent of theconduct of the accused, but it this is most unlikely. ONLY IF the original
wound is merely the setting in which another cause operates can it be said that the death does
not result from the wound.
3) Dan-Cohen Article. CB 559. Retribution is the intuitive justification for the causation requirement.
Transferred Intent

D shoots at X intending to kill him. D missed X and hits Y. All jurisdictions hold that D is guilty of
murdering Y.

MPC reachs this conclusion w/o fiction of transferred intent. § 2.03(2)(a) provides that where crime
requires that D intentionally cause a particular result, that elelment of the crime will be satisfied
where D accidentally causes that result to one person while trying to cause it to another.
Johannes de Silentio
Criminal (Katz)
Spring 1999
Page 40 of 64
MPC ON CAUSATION -- 2.03
Cause-in-Fact

The MPC applies the but-for rule. To be guilty of an offense, a person’s conduct must cause the
prohibited result. MPC § 2.03(1)(a) defines “cause” as “antecedent but for which the result in
question would not have occurred.” The common law principles that clarify the meaning of this test
also apply in Code jurisdictions.
Proximate Cause

Unlike common law, the Code treats but-for causation as the exclusive meaning of “causation” in the
criminal law. The Code treats matters that the common law would consider in terms of “proximate
causation” as issues relating to the actor’s culpability.
MPC 2.03(2)(a) & (b) and 2.03(3)(a) & (b)

These sections deal with situations in which the actual result of D’s conduct (considering both the
precise harm caused and the manner in which it occurred) diverges from that which was designed,
contemplated, or (in the case of a crime of recklessness or negligence) risked.

In such circumstances, the issue in a Code jurisdiction is not whether, in light of the divergences, the
D was a “proximate cause” of the resulting harm, but rather whether it may still be said that he caused
the prohibited result with the level of culpability – purpose, knowledge, recklessness, or negligence –
required by the definition of the offense.
Application

According to the Code, D has not acted with the requisite culpability (which, in this context, is the
same as saying that the common law proximity standard is not satisfied), unless the actual result,
including the way in which it occurred, was not “too remote or accidental in its occurrence to have a
[just] bearing on the actor’s liability or on the gravity of the offense.” Thus, under the Code, the
varying and sometimes inconsistent proximate-causation doctrines developed by the common law are
replaced with a single standard, which invited the jury to reach a result based on common sense and
fairness.
Felony Murder Rule

In the rare circumstances of an offense containing no culpability element, MPC § 2.03(4) provides
that causation is “not established unless the actual result is a probable consequence of the actor’s
conduct.” Basically, this rule permits a person to be convicted of murder for an accidental killing that
occurs during the commission of a felony. In a jurisdiction that recognizes the common law felonymurder rule, but which applies MPC causation principles, a D may not be convicted of felony-murder
if the death was not a probable consequence of his felonious conduct
Causation -- Subsequent Human Actions (Intervening Acts)
PEOPLE V. CAMPBELL
CB 581
1) D was drinking with deceased. D suggests that deceased kill himself. Deceased said he had no
weapon: D gave his gun to deceased and left. Deceased then shot himself.
2) Held that giving someone a gun who subsequently uses it to commit suicide is not murder.
3) Rule. Incitement to suicide is not a crime.
4) Reasoning
a) Homicide is the killing one person by aonther. Suicide, by definition, excludes homicide. D has
not killed another person.
b) D had no present intention to kill. He provided the weaopn and departed. D hoped deceased
would kill himself, but hope alone is not the degree of intention requisite to a charge of murder.
Morally reprehensible, but not criminal.
5) Overturned conviction.
Johannes de Silentio
Criminal (Katz)
Spring 1999
Page 41 of 64
Notes
1) Majority View. One who successfully urges or assists another to commit suicide is not guilty of
murder or manslaughter so onlg as the deceased was mentally responsible and was not forced or
deceived.
2) Minority View. It is criminal to assist in suicide. Many state statutes modeled after MPC § 210.5,
which makes it criminal for a person to purposely aid or solicit another to commit suicide. If the
person solicited or aided commits or attempts suicide, the crim is punishable as a felony. Otherwise,
it is a misdemeanor.
Intervening Human Actions
a) Foreseeability is not applicable in cases like Campbell. Law regards person's acts as product of
his own choice and not as having been caused. Nothing causes another person to act - he chooses
by free will.
b) Novus actus interveniens. A new action by another party that becomes the new foundation of
causal responsiblility. This is a general principle and not hard rule. Voluntary acts are treated as
outside any causal chain.
i) Exceptions include: acting without full knowledge, compuslion of duty, excitement, duress.
c) Involuntary acts are treated as caused by something else.
d) In general, subsequent human actions tend to be view as chosen rather than caused in the
following two ways:
i) Subsequent actions intended to produce the result
ii) Subsequent actoins that recklessly risk the result
e) Novus actus applied less strictly here to subesequent human actions.
SUBSEQUENT ACTIONS INTENDED TO PRODUCE THE RESULT
STEPHENSON V. STATE
CB 564
1) D abducted deceased. Raped and beat here over two days. When out at a store, deceased bought
some poison and later took it. Deceased requested a doctor, which D denied. Instead, D drove her to
his home. Deceased parents took custody and got her medical attention. All deceased's wounds
healed except one, and she later died. The medical cause of death named several factors - none of
which was sufficient by itself to kill her. D convicted of m2.
a) D argued that deceased committed suicide: her taking the poision was an intervening act that
broke the causal connection between his acts and the death. Her taking the poison was the
proximate cause of her death.
2) Held that D rendered the deceased mentally irresponsible, which was the natural and probable
consequence of such unlawufl and criminal treatment. Thus, D is guily of m2.
3) Rule. When suicide follows a wound inflicted by D, his act is homicidal - provided that deceased
was rendered irresponsible by the wound and as a natural result of it.
4) Reasoning
a) D had complete domination over the deceased, from time she was entrapped until she returned
home. The same forces that would impel her to shoot hersef during the actual attack or throw
herself out of a car after the attack were active when she took the poison.
5) Affirmed conviction
Notes
Johannes de Silentio
Criminal (Katz)
Spring 1999
Page 42 of 64
a) An insane intervening actor will not break the causal conncetion between D's act and the death
(including suicide).
b) The intervening actor' responsibility for the death will be destroyed if he acts innocently in
ignorance of fact, or in necessary self-defense, or instinctively as a result of fear, or in pursuance
of public duty. Because the action is natural and instinctive, the law holds for homicide the
previous actor who unlawfully created the situation.
SUBSEQUENT ACTIONS THAT RECKLESSLY RISK THE RESULT
COMMONWEALTH V. ROOT
CB 573
1) D found guilty of manslaughter for death of his competitor in a highway drag race.
2) Held that D's reckless conduct was not a sufficiently direct cause of the competing dirver's death to
make him criminally liable.
3) Rule. Proximate causation for criminal liable requires a sufficiently direct causal relation.
4) Reasoning. The deceased was aware of the dangerous condition created by D's reckless conduct.
Despite this knowledge, he choose to swerve his care into the path of the oncoming truck that caused
his death.
PEOPLE V. KERN
CB 574
1) Ds convicted of second-degree manslaughter for chasing a man onto the highway where he was
fatally hit by a car. Ds appeal, arguing that there was insufficient evidence of causation, and that
driver who hit deceased had been negligent: thus, his actions constituted an intervening act that broke
causal chain
2) Held that Ds actions were a "sufficiently direct cause" of victim's death so as to warrant the
imposition of criminal liability.
3) Reasoning
a) It is no argument to say victim cause his own death by choosing the wrong escape route.
b) Argument that car driver was independent intervening act fails b/c there was nothing in
circumstances of death to relieve D from directly foreseeable consequence of their actions. Even
assuming driver who hit victim was less than cautious in driving, facts show his actions were not
sole cause of victim's death. Ds forced him onto highway.
STATE V. MCFADDEN
-REJECTS ROOT

D was racing his friend, who ran into another vehicle. Both the friend and a passenger in the other
car were killed. D convicted and appeals, arguing that proof of causation was lacking.

Holding

Friend's voluntary and reckless participation in the drag race does not itself bar D from being
convicted of involuntary mansalughter for his friend's death.

The coviction was propely founded upon the more exapnsive doctrine of proximate cause that
does not require a "direct causal connection."

Rule

The acts and omissions of two or more persons may work concurrently as the efficient cause of
an injury and in such case each of the participating acts or omissions is regarded in law as a
proximate cause
Johannes de Silentio
Criminal (Katz)
Spring 1999
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Page 43 of 64
The tort doctrine of proximate causation, coupled with a required finding of recklessnesss, applies
to causation for criminal liabilty.
PEOPLE V. ATENCIO
CB 577

Ds convicted for manslaughter. They participated in russian roulette game with deceased. Ds argue
that court should have ruled, as a matter of law, that there were three solo games of russian roulette
instead of one group game.

Held that Ds could properly be found guilty of manslaughter: their conduct in helping bring about the
victim's death was reckless.

Reasoning. It is an oversimplification to contend that each partiicpatged in somehting that only one
could do at a time. Mutual encouragement in a joint enterprize could be found. There was a duty on
their part not to cooperate or join with deceased in the game.

Affirmed conviction for manslaughter.
Four Ways of Liability -- Comparison
Principal
Innocent Agent
Accomplice
Conspiracy
PRINCIPAL
a) Causation. In fact and Proximate.
INNOCENT AGENT DOCTINE (PERPETRATION BY MEANS)
a) X causes Y to do the crime. X must also have the mental state required for the commission of the
crime.
b) IA not needed where actus reus is causation. SO you need it when the crimes require more than
causation for acuts reus (burglary, etc.).
ACCOMPLICE LIABILITY
a) MPC
i) Purpose to commit substantive offense.
ii) Conduct constituting a substantial step toward commission of that offense.
iii) NOT ANY foreseeable crime
iv) Reckless/negligent mens rea. On hook for result crimes IF:
(1) Accomplice in conduct that caused the result
(2) Acted with mental state regarding result sufficient for commission of offense.
v) Gray area between an attendant circumstance and a result is not clarified by MPC.
b) Common Law
i) Purpose to assist principal in conduct that forms basis of offense.
ii) Has mental mental state required for commission of offense, as provided by definition of
substantive crime.
Johannes de Silentio
Criminal (Katz)
Spring 1999
Page 44 of 64
(1) This may be inferred from the first intent
iii) ANY foreseeable crime.
iv) Reckless/negligent mens rea. On hook for result crimes.
v) As long as X acts with purpose of assisting principal in coudct that constitutes the offense, X
is an accmplice if his culpability to the attendant circumstances would be sufficient to
convict him as a principal.
(1) The mens rea regarding the substantive offense should control the accomplice's situation.
CONSPIRACY
a) MPC Rejects Pinkerton on conspiracy
b) Conspiracy is a much broader basis for liability. All a conspirator need do is agree, which may
serve as encouragement. He need not particiapte in planning/commission of offense.
c) See notes 4/06.
Effective difference between Conspiracy and Accomplice liablity

For far ranging conspiracy, conspiracy liablity puts more people on the hook (liable for those offenses
that are foreseeable part of conspiracy) than accomplice liablity (liabile only for foreseeable
consequences of those offense in which S has intentionally assisted). Example - prostitution ring.
Complicity
Complicity has a purposeful requirement.
Common Law Terms

Principal
first degree = actor, second degree = aiding and abetting

Accessory
not chief actor, not present

Accessory b/f the fact
procure, counsel, command another to do crime

Accessroy after the fact
assists the felon

Modern Law. There are principals and accessories (after the fact)




Apart from accessroy after the fact, who is still generally subject to lesser punishment, the
punishment is the same for the three main modes of complicity
Accessoreis to crime may be convicted b/f principal is convicted
In most states, D need not be charged with a particular form of complicity. D may be charge w/
substantive crime commited by person D aided.
Many states hold that reckless and intentional intervening behavior both break the causal chain.
Complicity by Omission

A person can be an accomplice if he has a legal duty to prevent the offense and fails to do so with the
purpose of promoting or facilitating the crime.
Derivative Nature

Accomplice can not be guilty unless primary committed a crime.

P's acquittal does not preclude convicting S as accomplice. This varies per case - if P's acquittal
proves there was no offense, then there can be no accomplice.

If P's actions were justified and he is acquitted, then S is not guilty.
Johannes de Silentio
Criminal (Katz)
Spring 1999
Page 45 of 64




If P is acquittted on basis of excuse (insanity, duress), his acquittal does not bar a prosecuting S to
who excuse does not extend. P'a acts are still wrongful, he is just not accountable.
Since the accomplice's liability is derivative, he may be convicted of any offense committed by the
principal in which the accomplice intentionally assisted the principal. This is true for crimes
committed or attempted.
Common Law. IF you have the required mens rea for the offense and use a non-capable human to
commit the crime, THEN you are liable as a principal. MPC adopts stronger form of this.
Accomplice Liability -- Assistance

By physical conduct

By psychological influence
incite, solicit, enourage principal

By omission (assuming a duty to act)
MPC 2.06(6) -- Abandonment.

Permissilbe only if accomplice terminates his complicity b/f commission of offense and

Deprives it of effectivemness in commission of the offense, OR

Gives timely warning to law enforcemnt or otherwise makes effort to prevent commission of the
offense.
Exceptions to Complicity
MPC 2.06(6)(a), (b)

A person is not an accomplice in an offense committed by another either if he is a victim or if the
offense is so defined that his conduct is invetiably incident to is commission.
Common Law/ MPC distinction

Common Law Disctinction

I shot encouragement at Stand Row, who has already decided to kill. Complicity.

I shout encouragement at deaf perpetrator, it is an attempt to aid. No complicity.

MPC says there is complicity if one actually aids or attempts to aid.

Logic behind Common Law View

Is it a situation of redundancy (overdetermination) or ineffectiveness? Subtract away each person
in group of actors until you get to the one, and see if he has an effect (encouragement) on the
actor. If so, overdetermination and therefore complicity - on hook. If ineffectiveness - off hook.

Problem with common law. Hypo based on Tally. Tally prevented the warning telegram from
reaching Ross, but the telegram would not have helped Ross b/c he was stuck. The Skeltons kill
him. So, was Tally redundant or ineffective? This distinction easily disappears.

MPC says the common law distinction (redundancy/ineffectiveness) is pointless. Instead, anyone
who aids or attempts to aid is liable as an accomplice. So in the hypo - Tally is on the hook

Katz says the problem of the common law was not eliminated by MPC. If you know you are
ineffective, then you may or may not be on hook. That is, still an acknowledged difference between
yelling encouragement in a group and yelling encouragement at a TV.
Mens Rea
MENS REA AS TO ACTIONS OF THE PRINCIPAL
Hicks v. United States
CB 644

Rowe shot Colvard, Hicks laughed and said "take your hat off and die like a man." The nearest
witnesses were some distance away.
Johannes de Silentio
Criminal (Katz)
Spring 1999
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

Page 46 of 64
Held that the mere use of words does not suffice to warrant jury in finding D guilty, regardless of the
inetntion with which they were used.
Reasoning. The record shows no facts from which the jury could have prorperly found that encounter
was the result of any previous conspiracy. Undclear why Hicks sopke the words. Perhaps he was
trying to aoid being shot by Rowe.
Bottom Line: These words are not proxmiate cause. This case demonstrates why we need complicity
to put accomplice on hook
Departures from the common scheme

Where two persons embarks on a joint enterprise, each is laibe for the acts done in pursuance of that
jiont enterprise, but if one of the adventurers goes beyond wha has been tacitly agreed as part of the
common enterprise, his co-adventuere is not liable for the conseequences of that unauthorized act.

MPC § 2.06(3) agrees and clarifies

The precise means used in the crime must not have been decided b/f the crime began. If it was, then
it is not limited to that.

The liabilty of an accomplice ought not to be extended beyond the purposes that he shares.
Wilson v. People
CB 649

S and P got into an argument over S’s assertion that P had stolen his watch. The two men agreed to
steal property from V’s drugstore. S assisted P in entering V’s store. While P was inside, S called
the police – police arrested both S and P for burglary and larceny. S’s conviction was overturned
because he lacked the second mens rea of an accomplice, namely, the mental states required for
commission of the offenses of larceny and burglary.

A detective (agent provacteur) entering apparently into a criminal conspiracy already formed for the
purpose of exploding it is not an accessory b/f the fact.
State v. Gladstone
CB 650

D convicted for aiding and abetting another man in the unlawful sale of marijuana. No
communication between D (first approached by cop) and the man who eventually sold it. Gave cop
other man's name,address, and drew a map to his house.

Rule. There is no aiding and abetting unless one in some sort asociate himself with the venture, that
he particiapte in it as in something that he wsihes to bring about, that he seek by his action to make it
succeed.
Notes

Knowledge of success won't do it - must have purpose of helping the other person succeed.

D could not be convicted for helping the undercover cop b/c the undercover cop was not committing a
crime in purchasing the marijuana.

MPC requires that actor have purpose of promoting or facilitating the commission of crime.

NY has "criminal facilitation," which requires only that the aider believes it "probable" that the
person aided will commit a crime.
People v. Luparello
CB 655

Guy wants to find his ex-lover. He asked his friends to help, saying to do whatever it takes to find
her. They found a friend of the ex-lover's husband and killed him, without D present.

Rule

Only the the perpetrator can and must manifest the mens rea of the crime committed.
Accomplice liability is premised on an equivalent mens rea, which comes from intentionally
encouraging or influencing the act.

To be a principal to a crime the aider and abettor must intend to commit the offense or to
encourage or faciliate its commission.
Johannes de Silentio
Criminal (Katz)
Spring 1999


Page 47 of 64
Liability is extended to reach the actual crime committed rather than the planned or intended crime,
based on policy that aiders and abettors should be responsible for criminal harms they have naturally,
probably, and foreseeably put in motion.
Notes

This reasonable foreseeability test is opposed to MPC, which requires that the secondary actor
help or encourage the crime the principal actually committed. MPC is minority view on this
issue.

Dressler says the effect of this rule is to permit conviction and punishment of an accompolice
whose culpablity is lees than s required to prove the guilt of the primary party. (Convict for
intent crime where S was only negligent)
MENS REA AS TO ATTENDANT CIRCUMSTANCES

As long as S acts with purpose of assisting the principal in the conduct that constitutes the offense, S
is an accopmlice if his culpability as to the attendant circumstances would be sufficient to convict him
as a principal. The mens rea regarding the substantive offense should control the accomplice's
situation.
Johnson v. Youden
CB 659

Before a person can be convicted of aiding and abetting the commision of an offense, he must at least
know the essential matters that constitute the offense.

This means you must know the matter which in fact constituted the offense, b/c he can only be guilty
if he wants the entire offense to occur (purposeful). In contrast, MPC 2.06(3)(a) is intentionally
ambigious on this issue - expalined

Willful blindness is treated as equivalent to knowledge, but neither negligence nor recklessness is
sufficient. (Giorgianni)
MENS REA AS TO RESULT -- THE MCVAY EXCEPTION UNDER MPC
State v. McVay
CB 661

Kelly was alleged an accessory b/f the fact, for hiring the the captian and engineer of a steamship.
The ship's boiler exploded and killed some passengers. The two men were convicted of manslaughter
- reckless in causing deaths of others.

Held that D may be indicted and convicted of being an accessory b/f the fact to the crim of
manslaughter arising through criminal negligence.

Reasoning. Kelly pariticapted in procuring Ds to act in a grossly negligent manner. He - with full
knowledge of the possible danger to human life - recklessly and willfully adivsed the two men to do
what resulted in their mansluaghter conviction.
The McVay Exception

MPC 2.06(4) puts Kelly on hook as an accomlice in the conduct of causing the result - a result crime.
Only mens rea required here is that of prncipals. So, MPC 2.06(4) is an exception to 2.06(3) attendant circumstances. There is no liability for attendant circumstances. So there is a gray area:
what is a result and what is an attendant circumstance?

So, under 2.06(4) - don to need to intend the result, just to "intend the recklessness."
The MPC Text
Johannes de Silentio
Criminal (Katz)
Spring 1999
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
Page 48 of 64
MPC 2.06(3). One who aids or solicits another person to commit an offense is an accomplice of that
person only if he or she acts “with the purpose of promoting or facilitating the commission of the
offense.”
MPC 2.06(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.
Common Law

A person is an accomplice in a commission of an offense if he intentionally aids the primary party to
commit the offense charged. The two intents:

The intent to assist P to engage in the conduct that forms the basis of the offense; and

The mental state required for commission of the offense, as provided in the definition of the
substantive crime.

This may be inferred from the first intent.

Permits accomplice liability for negligent and reckless crimes.
People v. Abbott
CB 662

Drag racing case. Abbott ran into another car and killed the occupants. Moon was his competitor in
the race. Moon convicted.

Rule. Accessorial lability may attach for criminally nelgigent homicide provided that the accessory
shares the requisite culpable mental state for the crime and intentionally aids in its commission.

Reasoning. Without Moon's aid Abbott could not have engaged in the race that caused the deaths.
Actus Reus
Wilcox v. Jefferey
(CB 666)

The Jazz case. American jazz musician came over and performed, which violated a law about
foreigners needing a license to perform. D, a beat writer, was charged with aiding the man's violation
of the law.

Held that there was evidence on which the lower court could find that D aided and abetted.

Rule. Where the presenece may be entirely accidental, it is not even evience of a/a. Where presenece
is prima facie not accidental, it is evidence of a/a.

Reasoning. D paid to go to conecert and went there b/c he wanted to report it. He was there on
purpose, and knew it was illegal for the jazz man to play in the concert. D's presence was
encouragement.
Causation and Actus Reus

For a/a, the assistance need not be a but for cause of the criminal result. It is sufficient if it
facilitated a result that would have transpired w/o it.

It is quite enough if the aid merely renders it easier for the pricnicpal actor to accmplish the end
intended by principal and the a/a. (Tally)

Ex. If he who facilitates murder, even by so much as destroying a single chance of life the
assailed might have otherwise had, has acted as a/a the perpetrator.

Even if the same result might have occurred w/o D's contribution, he can liabile as an accomplice if
he acted w/ the required mens rea.
MPC 2.06(3)
Johannes de Silentio
Criminal (Katz)
Spring 1999
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Page 49 of 64
Remember, one who aids - or attempts to aid - is liable ONLY IF the prinicipal actor actually
commits an offense.
Where prinicipal actor commits neither the completed offense nor an attempt, the purported
accompliace is not liable.

This conduct may be crimimnal as an attempt or as criminal conspiracy (other sections of MPC).
A person acting with the required mens rea is an accomplice whether the person aids or "attempts to
aid" another person in planning or committing the offense.
Solicitation

Solicitation is a basis for accomplice liability.

It is established even if the actor fails to communicate with the person he solicits to commit the crime.
Relationship between Liability of the Parties

B/c of its derivative nature, accomplice liability does not result from the relationship between the
parties. Liability requires conduct by seoncd actor - intentional conduct designed to persuade or help
- to blame him for what primary actor has done.

D charged with a/a the commission of a crim by another cannot be ocnvicted in absence of proof
that crime was actually committed.
THE FEIGNING PRIMARY PARTY

The Innocent-Instrumentality doctrine does not apply. Acts of feigned accomplice may not be
imputed to the targeted D for purpose of obtaining a conviction. Applied in Hayes, but not in Vaden
(b/c of public auhtority justification).
State v. Hayes
(CB 671)

D wanted to rob a general store and asked Hill to help. Hill was related to the store owners, but
agreed to help in order to catch D. D helped Hayes break in, and was convicted for burglary

Held that to put D on hook, the intent and act must combine, and all the leemnts of the act must exist
and be imputable to D.

Reasoning

Some act essential to the crime charged was in fact done by the detective (Hill), and not by D,
and this act not being imputable to D, the latter's guilt was not made out.

To make D resopnsible for acts of Hill, they must have had a common motive and common
design. Here, the design and motives of the two were antagonistic.

If Hill entered the rooom with no design to steal, but simply to catch D in commission of crime,
and D did not enter room himself, then he is not guilty of burglary.
Vaden v. State
(CB 673)

Vaden was local guide suspected of letting hunters violate hunting laws. Snell was an governemnt
agent who went to see if he could catch Vaden in the act. Vaden took him in a plane, gave Snell a
shotgun, and flew the plane so Snell could shoot 4 foxes (illegal to shoot from plane and fox was out
of season.

Court upheld Vaden's concviction b/c of need for law enforcemnt - public authority justification
defense. No criminal conduct occurred for which Vaden could be convicted w/o an accomplice.
Also, no entrapment had been shown b/c Snell's actions - while illegal - did not amount to denial of
due process.
Johannes de Silentio
Criminal (Katz)
Spring 1999
Page 50 of 64
INNOCENT AGENT DOCTRINE -- MPC 2.06(2)(A) (PERPETRATION BY MEANS)

One is no less guilty of committing a crime b/c he uses the overt conduct of an innocent or
irresponsible agent. He is accountable in such cases as if the conduct were his own.

Limits.

Where statute definse crime so that it can only be committed by designated classes of persons.

Ex. Law porobhits officer of bank from entering false records. One who is officer cannot
commit offense. If X get innocent officer to do so, the absence of guilty principle precludes
accomplice liability for X. The doctrine does not apply b.c of how the statute is worded.

Nonproxyable actions

Ex. D causes married person to marry another by making the married person thinkg his prior
marriage was terminated. D cannot be held liabilty for bigamy simply b/c he caused the other
person to marry.

Perjury (not applied)

Ex. Does not apply to Hayes, but wuld if Hill were holding Hayes at gunpoint.

MPC 2.06(5). If X is legally incapable of commiting the offense, X may be guilty if commited by
conduct of another for which X is liable.

Ex. Husband soliciting rape on hook (although legally impossible for husband to rape wife).
CULPABLE-BUT-UNCONVICTABLE DOCTRINE

Where principle would be guilty except for a policy-based defense that makes him unconvictable
(diplomatic immunity or entrapment acquittal). In these cases, the accompliace is guilty b/c the
policy reasons do not apply to him.
Notes

Where the principal has been acquitted, the accomplice who is subsequently tried may not raise that
acqiuttal as a defense.

The secondary party may be convicted of a crime more serious or less seroius than the one committed
by the prinicpal actor.

Offense of instigator need not be of same grade as that of perpetraror. Instigator may act in hot
blood (manslaughter), while perpetrator acts in cold blood (murder). Vice-versa.
Conspiracy





An agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful
manner.
Common law. Conspiracy was a misdemeanor, and if substantive crime was actaully committed, then
the misdemeanor merged into the actula crime committed.
Modern law. Conspiracy is punishable as a separate and distinct crime.
D may be prosecuted for both the conspiracy and the complete crime and the sentences added
together on conviction.
Conspiracy is a much broader basis for liability. All a conspirator need do is agree, which may serve
as encouragement. He need not particiapte in planning/commission of offense.
Johannes de Silentio
Criminal (Katz)
Spring 1999
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Page 51 of 64
Conspiracy liablity puts more people on the hook (liable for those offenses that are foreseeable part of
conspiracy) than accomplice liablity (liabile only for foreseeable consequences of those offense in
which S has intentionally assisted). Example - prostitution ring.
Retroactivity

With regard to liability for conspiracy, a D may be legally responsible for acts of co-conspirates prior
to that D's entry into the conspiracy. That is, the prior acts may be used as evidence against him in
prosecution for the crime of conspiracy. With regard to substantive offenses, a D cannot be
retroactively liable for offense committed prior to his joining the conspiracy.
CO-CONSPIRATOR EXCEPTION TO HEARSAY RULE

Krulewitch affirms general doctrine permitting intorduction against one co-conspirator of out-of-court
statemnts made by another. Doctrine applies whetehr or not the parties have been formally indictmed
or convicted of conspiracy, provided that the statement is in furtherance of conpiracy (agreement)
between them.

Justification: hearsay statements by party being tried should be admissable. He has an opportunity to
defend himself.
Perjury

If X causes Y to commit perjury. Perjury is intentionally lying under oath.

Y is not held liable as a principle for perjury

Innocent agent doctrine does not apply - X did not casue Y to lie under oath (Y thought he was
telling truth - he did not intend to lie).
Krulewitch v. United States
CB 720

D and woman allegedly conspired to persuade another women to travel from NY to FL to commit
prostituition, which is iillegal. After D was arrested, complaining witness told prosectuion of an
alleged conversation she had with woman D. Conversation occurred after witness had returned to
NY and involved a suggestion not to implicate D. The conversation was admitted against D.

Held that conspirator's statements against a co-conspirator may not be admitted into evidence if the
statements were not made in furtehrance of the crime charged.

Reasoning

The cenral aim of the alleged conspiracy (interstate transport of the witness to D) had either
never existed or had long since eneded when and if the alleged co-conspirator made the statement
the witness attributes to her. The testimiony is unsworn, out-of-court declaration about guilt: it is
hearsay.

However, it was not made in furtherance of the objectives of the conspiracy charged in the
indictment, so it is not admissiable as an exception to the hearsay rule. The statement does not go
to the nature of the conspiracy, so it remains heasay not subject to the exception. That is,
conspiracies do not necessarily have a plan to cover it up as a part of it.
Katz on Krulewitch

Hearsay. "Out of court statement offered to prove the truth of the matter asserted."

Y tells court that X - on trial for murder of Z - told him "I, X, killed Z." This is hearsay.

So, is the statement in Krulewitch hearsay?

The statement is tantamount to asserting K's guilt - it implies guilt. But that is not the same as
hearsay. However, Court says it is hearsay. Yet it is not admissable under the co-conspirator
exception to the hearsay rule (statements in furtherance of conspriacy are let in).
Duration of a conspiracy
Johannes de Silentio
Criminal (Katz)
Spring 1999
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Page 52 of 64
Once formed, a conspiracy remains in effect until its objectives have either been achieved or
abandoned. The statute of limitations runs from when the conspiracy terminates.

So, a conspiracy often can remian subject to prosecution long after the initial agreemetnwas made
an dlong after some of its members have ceased any active participation.
Most court have refused to infer that an implicit agreement to cover up the crime is inherent in every
conspiracy. So, agreements to coverups do not get into court under the co-conspirator exception to
the hearsay rule.

A particular conspiracy cannot be treated as including a coverup agreement UNLESS there is
"direct evidence of an express original agreement among conspirators to continue to act in order
cover up traces of the crime." (Grunewald)
Abandonment

A conspiracy is gnereally considered to be abaondoned when none of the conspiraftors is engaging in
any action to further the conspiratorial objectives. If such inactivity contunes for a period equla to the
statue of limiations, prosecution is barred.

For a particular D to abandon, court have rquied that he take affirmative action to announce his
withdrawal to all other conspirators (in a away to reasonably calculated to reach them).
Renunciation
MPC 5.03(6)

Allows renunciation of conspiracy ONLY IF the circumstances manifest renunciation of the actor's
criminal purpose AND the actor succeeds in preventin commision of the criminal objectives.
Punishment.

Majority view. Punishment for conspiracy fiexed at some term less than provided for the object
crime.

Minority view (33% states) (MPC). Make punishemnt for conspriacy same as that authorized for the
object crime, except for the most serious felonies. MPC 5.05(1).

Traditional view permits separate punishments, with consecutive sentences, for the object crime and
to conspiracy to commit it. Crime and conspiracy as separate offfenses.

Grading. Traditional approach is to treate conpspiracy as a generic offense and to prescribe a
punishment range unrelated to those authorized for the object crimes. Modern law specifes that when
object of crime is a misdemeanor, punishment for the conspiracy shall not exceed that authorized for
the misdemeanor.
MPC 5.03

When a conspiracy is declared criminal b/c its object is crime. Cumulative sentences for conspiracy
and substantive offenses not permissible.

Conspiracy have criminal objecitve beyond an crimes committed. Cumulative sentences for
conspiracy and substantive offenses permissible.
CONSPIRACY AS A FORM OF ACCESSORIAL LIABILITY


Rule. Each conspiractor is held accountable for any and all crimes that result from the furtherance of
the conspiracy. So long as the offense is reasonably foreseeable consequence of the conspiracy, it is
no defense to say the offense was not part of the original plan.
MPC rejects the Pinkerton doctrine. A person is not accountable for conduct of another solely b/c he
conspired with that person to commit an offense. MPC views conspiracy as an extension of attempt
doctrine, not complicity.
Johannes de Silentio
Criminal (Katz)
Spring 1999
Page 53 of 64
PINKERTON V. UNITED STATES
CB 734

Pinkertons, Daniel and Walter, were prosecuted for conspiracy to commit violations of the Internal
Revenue Code and for substantive violations. Only Walter committed the actual violations, but both
were convicted of conspiracy and certain of the substantive violations. Daniel appeals.

Held that a conspirator may be convicted of committing the offense intended by the conspiracy
although he had not direct participation in the actual commission.

Reasoning.

The criminal intent to do the act is establish by the formation of the conspiracy. The act was done
in the execution of the enterprise. The overt act of one partner in crime is attributable to all.
The Pinkerton Doctrine

A party to a conspiracy is reponsible for any criminal act committed by an associate if it:

Falls within the scope of the conspiracy; OR

Is a foreseeable consequence of the unlawful agreement.

Notes. Creates second route to liablity for substantive crimes for people with a tenuous connection to
that crime. Luparello generates a similar outcome.
Felony-murder and Complicity
KILLING BY A NON-FELON -- FACT PATTERN

F1 and F2 enter store to rob it. F1 points gun at X (store employee), threatens to kill her and fires
warning shots. X fires a weaopn at F1 to prevent the robbery. F1 and V (customer) are killed by the
shots from X. May F2 be convicted of felony murder of F1 and V?

Question. Literally, killing occurred "during the attempted commission of the felony," but they did
not occur in furtherance of it. So does fel-mur apply?
THEORIES OF FELONY-MURDER

Agency - Majority View. Rule does not apply if an adversary to the crime, rather than a felon,
personally commits the homicidal act.

However, in the ordinary felony-murder situation - in which felon kills innocent person - cofelons are responsible for the shooting.

Justifications. 1) Killing was not within res gestae of the offense, since killing was in resistance
to the crime and not in furtherance of it. 2) The rule has no deterrent effect on felons when
shooter is a non-felon.

Proximate Causation - Minority View. Felon is liable for any homicide that occurs during
commission of the offense, wether shooter is a felon or a third party, if the killing was the proximate
result of the felonious activity. The result of this result is fact-specific (so not automatically on hook).

Limited Version. No fel mur conviction of F2 for killing of F1 by X, but on hook for killing of V
by X.

Identity of Victim Doctrine. No fel mur if killing was done by the victim.
State v. Canola
Johannes de Silentio
Criminal (Katz)
Spring 1999



Page 54 of 64
D and 3 others were robbing a store. Owner shot and killed 1 robber, and the owner was killed by
another robber. D convicted for both murders. Conviction for murder of other felon was appealed.
Held that a felon may not be held guilty of murder for the killing of co-felon by victim of felony.
Applied agency theory.
Katz. Consider accomplice liability - McVay exception.

MPC 2.06(4). Cannnot be an accomplie to felony murder unless you have an intent to the results the underlying felony and the death. No intent as to the death of the co-felon. No mens rea as to the
outcome.
Attempts





From preparation to perpetration
Completed attempts (Y fires gun at X and misses) and Incomplete attempts (police stops X from
firing at Y).
Most jurisdix provide that a fialed attempt to commit the target offense is not an essential elelment of
a criminal attempt. Meaning:

In prosecution for crime of intent, jury may properly return a guilty verdict for lesser offense of
attempt; AND

In every case where attempt is charged, proof of its actual commission establishes the attempt
If a person commits the target offense, she may not be convicted of both it and the criminal attempt.
Rejected view. "Attempt is nothing more than fragmnet of complete offense."
Utilitarian justification for punishing attempts (Hart)

"Individual who has tried but failed to carry out planned crime may need just as much punishment to
keep him straight in the future as the successful criminal. He may be as much disposed to repeat the
crime."

Criticism. Possible little deterrent effect for attempt punishment. No one thinks they are going to fail
b/f they act, so they would not worry about punishments for failure b/f acting. Punishments for
success seem to provide the deterrence.
COMMON LAW



Attempt is an intent-specific crime, EVEN IF the substantive crime is a general-intent offense.
Attempt to commit a felony is punished less severely than the substantive offense.
Mens Rea

Result Crimes.
Defined in terms of prohibited result

A person is not guilty of attempt UNLESS her actions in futherance of the prohibited result
are committed with the specific purpose of causing the result.

Conduct Crimes.
Actus reus defined as harmful conduct rather than result

Person must possess the specific intent to engage in the conduct that - if performed constitutes the substantive offense.

Ex. Reckless driving. Guilty IF:

Intentionally committed actus reus of attempt by purposefully blindfolding self and turing
on ignition; AND

Has specific intent to drive car in a reckless manner
Johannes de Silentio
Criminal (Katz)
Spring 1999

Page 55 of 64
Attendant Circumstances.
Facts necessary to constitute crime

Ordinary specific-intent rqeuirement of attempt should not apply to attendant circumstances.

Actus Reus
how much remains to be done / how much has already occurred

Last Proximate Act Test

Attempt does not arise unless an actor has it within her power to complete the crime almost
immediately. Offense would result, if not extrinsically hindered by outside circumstances.

Dangerous Proximity Test

Used in Peaslee and Rizzo

Guilty of attempt when her conduct is in "dangerous proximity to success," or is "so near to
the result that the danger of success is very great." To determine point of proximit, consider:

Nearness of danger,

Greatness of the harm, AND

Degress of apprehension felt.

Unequivocality Test (RIL)

Used in King v. Barker

Attempt occurs when a person's conduct by itself unambigously manifests her criminal intent
(ceases to be equivocal).

Defenses

At common law, legal impossibility is a defense, factual impossibility is not.

Factual Impossibility

Exists where a person's intended end constitutes a crime, but she fails to consummate the
offense b/c of an attendant circumstance known to her or beyond her control.

Pure Legal Impossiblity

Arises when law does not proscribe the goal that D sought to achieve.

Abandonment

Applies ONLY IF D voluntarily and completely renounces her criminal purpose.

Voluntary means "repentance or a genuine change of heart."

Not voluntary IF:

actor is motivated by unexpected resistance,

absence of an instrumentality essential to completing crime, OR

some other circumstance that increases likelihood of arrest or unsuccessful
consummation of the offense.

Not complete IF:

Actor merely postpones her criminal endeavor until a better opportunity presents itself.

No abandonment once she has performed last act necessary to commit the offense, OR has
already caused serious harm to the victim. Relevenat to sentecning, not conviction.
MPC -- MAJORITY VIEW




Recognizes abandonment defense and grades incohate offense at same level as completed offense.
Attempt to commit a felony is punished the same as the substantive offense.
Exception. For first degree felonies (life prison max), attempt is punished as second degree felony
(10 years).
Elements of the Offense

Purpose to commit the substantive offense

Conduct constituting a susbstantial step toward commission of the substantive offense.
Johannes de Silentio
Criminal (Katz)
Spring 1999
Page 56 of 64

5.01(1). A person is guilty of attempt to commit crime if, acting with the kind of culpablity otherwise
required for commission of the crime, he:

(A) purposely engages in conduct that would constittute the crime if the attendant
circumstances were as he believes them to be, or

(B) when causing a particular result is an element, does or omits anything with pupose of
causing or w/ belief (knowledge) it will cause such result w/o futher 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.

A and B pertain to completed attempts. A applies when target offense of completed attempt is a
conduct crime. B applies to result offenses.

C applies to incomplete attempts - 5.01(2) elaborates meanng of substantial step.

Mens Rea - Generally, purpose. Two exceptions:

1(b) and 1(c) say that a person is guilty if she believes that the result will occur, EVEN IF it were
not her conscious object to cause it.

5.01 phrase - "acting with the kind of culpablity otherwise required for commission of the crime."
This means that mens rea of purpose or belief does not necessarily encompass attendant
circumstances of the crime. For these elements, it is sufficient that actor possesses degree of
culpability required to commit the substantive offense.

Ex. If D could be convicted of statutory repae on proof that he was reckless as to age, then he
could be convicted of attempted statutory rape if he were reckless - but not if negligent or
innocent - as to girl's age.

SL crimes. D may be convicted even if he lacks a culpable mental state as to attendant
circumstance for which there is SL (e.g., age in statutory rape).

Actus Reus

Shifts acts focus of attempt law from what remains to be done to what already has been done.

5.02. Substantial step. Conduct that strongly corroborates D's criminal intent. Need not by itself
manifest criminality. However, must add significatnly to other proof of crminal intent such as
confession or other incriminating evidence.

One who engages in purposeful conduct is sufficiently dangerous to justify interent, EVEN IF she
is not yet close consumation of the offense.

5.01(3). Person may be convicted of a criminal attempt although a crime was neither committed
nor attempted by another, IF:

conduct is intended to aid another in commission of offense, AND

such assistance would have made her an accomplice in the commission of the crime under
MPC 2.06 (complicity), if the offense had been committed or attempted.
Defenses

Abandonment (Renunciation) MPC 5.01(4)

A person is not guilty of attempt IF:

She abandons her effort to commit the crime OR prevents it from being committed, AND

Her conduct manifests a complete and voluntary renunciation of her criminal purpose.

Adds part 1 to common law

No renunciation IF:

Not complete if wholly or paritally motivated by decision to postpone criminal conduct until
more advantageous time, or to transfer criminal effort to another but similar objective/victim.

Not volunatry if partially or wholly motivated by circumstances that increase the probability
of detection or apprehension.
Johannes de Silentio
Criminal (Katz)
Spring 1999



Page 57 of 64
MPC implicitly acknowledges pure legal impossibility - "the result intended or desired must actually
constitute a crime."
No factual impossibility. Eliminated by 5.01(1)(a)
Notes on Abandonment

Abandonment is proposition that is conscience moves you to stop, then you are off hook.
Otherwise, on hook.

If you shot at someone, missed, and then stopped b/c of conscience. You get abandonment
defense.

However, once you commit the act, on hook.
Attempts - draw the line early or late?

Utilitarian
Indeterminate on early/late issue.

Deterrence
Draw the line late.

Punish them for the fullest wrong. Last Proximate Act.

However, not sure if it last proximate act . May be earlier.

So, both utilitarian and deterrence advocates may converge on MPC test.
Mens Rea of Attempts





Common Law
Purpose
MPC
Purpose or Knowledge
Katz. Logic behind common law position distinguishing beteween intent and knowledge? It gives
each party credit for their desired outcome.
There can be not attempted involuntary manslaughter.
Bottom Line. Under MPC, Recklessness will not serve as a basis for attempt liability.
People v. Kraft
CB 585

D prevented a coupule from passing him on road. D pulled over and so did the couple. He shot at
their car. Charged with attempted murder, defended himself by saying he never inteneded to kill
anyone was just trying to scare the couple away. Convicted of attempted murder on jury instruction
saying the was guilty if he "knows that act creates strong probability of death to an individual."
Appeals.

Rule. A person may not be convicted of attempted murder in absence of evidence of an intent to kill
the victim. Knowlegde othat consequence of one's act may result in death does not satisfy the
specific intent requirement for attempted murdere.

Reasoning. All mental states for murder will not do (knowledge, recklessness). Attempted murder
requires a specific intent to kill someone.

Reversed conviction and remanded.
Notes

Given instruction, not guilty under common law. To convict, must show purpose to cause the result.
However, could be guilty under MPC 5.01(1)(b). Could show purpose or belief (knowledge) as to
result.

However, the man is most likely reckless in his shooting. If this is case, not guilty under MPC or
common law.
Spring Gun hypo
Johannes de Silentio
Criminal (Katz)
Spring 1999
Page 58 of 64
Guy intends to kill burglars with it. Conditional purpose - wants to kill them only if they enter his house.
Conditional purposes MPC 2.02(6) and combined with 5.01(1)(b) - yes, he is guilty of attempted murder.
Statutory rape hypo

If victim is negligently thought to be a minor (she is in fact 20), then he is off hook. No purpose or
belief (knowledge).

If man believed she was 17 or had puropse of doing it with a minor, THEN:

Situation 1. The act is committed

Liable under 5.01(1)(a). He thinks it is a crime…

Situation 2. The act is intended but prevented.

5.01(1)(c). Did he commit a substantial step? If so, on the hook.
Actus Reus of attempts

Common Law

Glanville Williams
MPC

Last Proximate Act, Unequivocality (RIL),
Dangerous Proximity to Success
Mens Rea, any act toward crime itself is bad
Substantial Step
Commonwealth v. Peaslee
CB 593

D was arretsted for arranging combustibles in a house, soliciting someone to start the fire who
refused, and driving toward bldg with intent to light the materials. When D was within 1/4 mile of
destination, he changed his mind and drove away. D convicted of attempted arson and appeals

Held it is not necessary that accused carry through with last act of his criminal purpose to be held
liable for attempt.

Dangerous Proximity. Some preparation may amount to an attempt - it is a question of degree. If
preparation comes very near to accomplishment of the act, the intent to complete it renders the crime
so probable that act will be an attempt, although there is need for further exertion of will to complete
the crime. Degree of proxmity held sufficient may vary with circumstances.
King v. Barber
CB 594, 606

RIL Test. A man's unfulfilled criminal purposes should be punishable they must be manifested not by
his words merely, or by acts in themselves innocent or ambiguous, but by overt acts that are sufficient
in themselves to declare the guilty purpose with which they are done.
US v. Jackson
CB 610

D and Allen were contacted by Hodges to help rob a bank. They armed themselves and drove to
bank, but did not rob it b/c they arrived late. They came back later, but decided to wait until next
week. Came back, drove by and were detected by gov't agents. All convicted of attempted robbery.

Held that D may be convicted of attempt when he did not commit last proximate act necessry to
effect a particular result that is an element of the offense.

Reasoning

Last proximate act is sufficient, but not necessary to constitute attempt.

Uses MPC.

Must act with culpability otherwise requied for conviction of crime. 5.01(1)

Must take a substantial step toward commission of crime. 5.01(1)(c)

Sub step itself can be an omission or a possession.

Affirmed conviction.
Johannes de Silentio
Criminal (Katz)
Spring 1999
Page 59 of 64
Solicitation
Common Law. Misdemeanor to counsel to counsel, incite, or induce another to commit or to join in
commission of any offense (either felony or misdemeanor).

Mens Rea. Requires shwoing that D acted volitionally and with purpose of causing purpose to
commit crime.

Actus Reus. Must actually counsel, incite, or induce another to commit the offense.
Modern Statutes. Generally, crime limited to solicitation of serious offense (murder, rape, robber, etc.).
A lesser penalty is imposed for solicitation than for commission, conspiracy, or attempt to commit the
crime.
State v. Davis
CB 617

D was convicted of attempted murder for paying an undercover police officer to kill the husband of
his lover. D had given officer map to house and photos man.

Held that solicitation does not amount to perpetration of an overt act in a criminal attempt.

Solicitation is a separate crime. Therefore, more neeeds to be shown than mere solicitation in order to
establish an overt act necessary for attempt conviction. Intent was clearly established, but an overt
act going to essence of murder attempt is required.
Johannes de Silentio
Criminal (Katz)
Spring 1999
Page 60 of 64
Defenses
Abandonment -- See Attempts


If you shoot the president, and then meet MPC requirements (voluntary, etc.) and president lives, then
you get abandonment defense.
If you feel bad about the criminal act, abandonment
Impossibility
Three types:

Pseudo

Inherent

Legal
PSEUDO

People v. Jaffe

A person may not be convicted of an attempt to receive stolen goods if the goods were not in fact
stolen goods.

Facts. D made an offer to buy goods that he thought were stolen, but before he purchased them,
they had been returned to their rightful owner. Goods were no longer stolen property but D was
under impression that they were. D convicted of attempting to receive stolen property.

If D had completed the crime, he would not have received stolen property. Objectively, his
behavior is not offensive - the property was not in fact stolen.

US v. Oviedo

D agreed to hell heroin to an undercover agent. D was prosecuted for distribution of heroin.
However, the powder was discovered to be non-narcotic. Held that it was insufficient to show
that D peform acts that are objectively criminal in nature. No conviction merely b/c D believed
he was committing a crime. Against MPC.
Note. If Jaffe were decided on under MPC 5.01(1)(a), D is guilty b/c he purposely engage in conduct
that would be a crime if attendant circumstances were as he beileves them to be.
Jaffe Variation. What if the fact that the goods were stolen was important to D? To not convict D,
they sort of modify MPC 5.01(1)(a) - D must puropsely engage in conduct that …. as he intends
them to be. Not mere belief. So, D off hook if only believes the goods are stolen.



People v. Dlugash

A person may be guilty of an attempt if completion of the crime was impossible.

Bush shot Geller 3 times in chest, one shot piercing his heart. 2 - 5 minutes later, Dlugash fired 5
shots into Geller's head. D convicted of murder.

If a person intends to commit a crime and takes actoin that tends to effect a commission of the
crime, he is guilty. Falls in line with MPC 5.01(1)(a).

Bottom line. If there is mistake of fact, you are on the hook.
Johannes de Silentio
Criminal (Katz)
Spring 1999

Page 61 of 64
US v. Berrigan

Under federal law, a person may not commit a criminal attempt when it is legally impossible to
commit a crime.

D was convicted of sending letters out from prison w/o permission of warden. Prison officials
intercepted first letter and knew of other letters that got out. D was convicted for violating prison
regulation.

Warden knew and consent to carrying out the letters. Even though such consent was not
communicated to D, there was legal impossiblity of D's actions being criminal.
INHERENT

Mens rea is there, but actus reus requirement is not there (voodoo). No conviction
LEGAL

If the conduct is not a crime by law, then there is no wrong committed. Legality of what you are
doing is not judged through eyes of actor.

Revisiting the David Smith case. The law of fixtures / tenant case. Apply 5.01(1)(a). Did he commit
a crime?

Imagine facts the way D thinks they are, but do not imagine the law the way D thinks it is. In this
manner, MPC tracks law/fact disctinction.

Mistakes of law as to collateral civil laws are exculpatory (just like mistake of fact). Mistakes
about criminal law are no exculptaroy.
Necessity





General Rule. Criminal acts, done out of necessity, may be excused:

If the accused can show that they were done to avoid otherwise unavoidable consequences to
himself to others he is bound to protect, the results of which would have been irreparable;

That no more was done that was absolutely necessary; AND

That the evil inflicted was not out of proportion to the evil that was threatened.
Vast majority of courts hold that taking another's life are never justified.
MPC 3.02 (minority view)
(1) Conduct the actor believes to be necessary to avoid an evil to himself or another is justifiable,
provided:

(a) Evil sought to be avoided by such conduct is greater than that sought to be prevent by the
law defining the crime;

(b) The law does not specifically provide for such a situation; AND

(c) A legislative purose to exclude the justification claimed does not otherwise plainly appear.
(2) Reckless/Negligent in bringing about choice of evils or in appraising necessity for his conduct,
justification afforded by his action is unaviliable in a prosecution for any offense for which
rekclessness or negilgence suffices to establish culpability.
People v. Unger
CB 860

D was convictd of escaping prison. Showed evidence that crime was justiifed by aff defense of
necessity. Had been had been assaulted and threatened with rape and death. Claimed he was unable
Johannes de Silentio
Criminal (Katz)
Spring 1999
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
Page 62 of 64
to defend himself and intneded to return upon gaining legal advice. Court denied necessity
instruction.
Held that defense of necessity may be used for escape
Reasoning. D was not compelled to escape, but evidence shows the escape cuold be considered
necessary.
Borough of Southwark v. Williams
CB 865

Homeless fimalies, starving, housing shortage. Squatted, arrested for tresspass. Raised necessity
defense.

Held that circumstances did not make there entry in to the homes (squatting) neceesary.

Reasoning. Choice of evils - if homelessness were a defense for tresspass, no one's property would
be safe.
Commonwealth v. Leno
CB 865

MA prohibits distribution of hypo needles w/o prescription. Ds operated needle exchange program to
combat spread AIDS. Convicted, denied necessity instruction.

Held that Ds did not show that danger they sought to avoid was clear and imminent, rather than
debatable or speculative.

Public policy - defer to legislature on the law. If the instruction had been given, it would allow juries
to nullify law, which they have no right to do.
Commonwealth v. Hutchins
CB 866

D charged w/ illegal possession/cultivation of weed. D offered proof that he had systemic sclerosis,
which has no cure, and that the weed has lead to a remission. Court denied this proof b/c it would not
support necessity defense.

Affirmed conclusion that proof would not support the defense.

Alleviation of D's conditoin would not clearly/significantly outweigh potential harm to public were
court to declare medical use of weed is not punishable. Cannot ignore gov'ts insterest in regulating
such substances.
Analysis of 3.02(2).

"D needs no justification defense when charged with crime base on recklessness or negligence, b/c it
is implicit in charge itself that D's conduct was not justified. Unjustifiability of conduct become an
element of charge itself and must be proved by state."
Three part analysis of necessity defense

3.02(1) and (1)(a)
Choice of Evils

3.02(1)(b) (c)

3.02(2)

Problems under 3.02(1)(a)

Utter Utility. Compare choice of evil decisions in these cases to the utilitarian surgeon, where we
allow him to slice up 1 patient to save 5.

Collateral effects. Everyone will grow weed, perjure themselves, etc.

What is the choice? Nazi euthanasia of people who wanted to live. Some doctors wanted to stop
the program, so they misdiagnosed people to save them. However, to avoid being caught, they
had to kill some people. Are they off hook under MPC? They saved more than they killed. But,
no. However, isn't real choice between participating or not participating (just walk away)? So
MPC will not excuse there killings as necessary.

How necessary? MPC seems to contemplate proximity and timeliness issues in deciding whether
D's choice of evils is justified.
Johannes de Silentio
Criminal (Katz)
Spring 1999
Page 63 of 64
SELF-DEFENSE
Problems
1. Imminence and Probability

What if threat is coming, but not imminently?

Probability? Roulette example (X rolls 30, X shoots Y. X has not rolled. Must Y wait until X has
rolled to defend himself?)

They are not strictly necessary, they are not even sufficient for self-defense. The statutes do not be
quite right
2. Retreat

Property rights…
3. Provocation

X creates predicament of self-defense, so that X contrives the need for self-defense, does
X get to retain that right to self defense? (X loses this right under necessity)

MPC does not settle this very well. What about cop who joins force just so he can defend
himself someday? The man who walks through Central Park at night, hoping he can defend
himself? Unclear is MPC covers this
Insanity
The Tests

M'Naghten. An accused must show that, as a resuot of his mental illnes, he either:

Did not know the nature and quality of his act; OR

Did not know that the act was wrong.

MPC. A person is not responsile for criminal conduct, if at the time of such conduct as a reulst of
mental disease or defect, he lacks substantial capacty either:

To appreciate the criminality (wrongfulness) of his conduct; OR

To conform his conduct to the requirements of law.

"Mental disease or defect" do not include an abnormality manifested only by repeated criminal or
otherwise anti-social conduct.


Deterrence is not justification for this defense (may be inimical to it). The justification is a sense of
just deserts.
Discussion of Various Tests

Durham Test. Get insanity defense if crime was product (caused result) of mental disease. Pretty
weak - causation covered too much.

Irresistable Impulse (substantial incapacity). Do not really need insanity defense - this doctrine
situation would be covered by volunatry act docrtine (if it''s not voluntary, no liablity). Already
handled by ordinary notions of responsibility.

M'Naghten Rule. Does it undo Ignorance of Law doctrine? It is generally construed as meaning
inability to appreicatie wrongfulness on legal level. ???

MPC. Lack of substantial of capacity to aprreicate criminality or wronfulness of own actions.
M'Naghten
Crenshaw
The Tories were plotting to kill me
My religion tells me to kill my wife for being being unfaithful - I think
she was
Johannes de Silentio
Criminal (Katz)
Spring 1999
Cameron
Page 64 of 64
Deific decree exception. I killed my stepmother because she had an evil
sprit in her (she was not a human) and God told me to do it.
Legality

Bottom Line. State may not punish X unless there is a law under which X can be punished.

Unlike torts or contracts, cannot create law along the way.
Keeler v. Superior Court
1970
CB 298

Held that a person may not be guilty of mruder for killing an unborn fetus when law has not
determined whether an unborn fetus is a "human being."

Reasoning

In adopting the defnintion in the penal code, the legislature intended to exclude the killing of
unborn fetuses (divined from common law - for murder, "human being" must be "born alive").

Cannot hold D to answer for murder for an unborn - even though viable - fetus.

Cruel and Unusual Punishment. Power to defines crimes and fix penatlies is vested
exclusively in legislature: courts cannot create an offense by 1) enlarging a statute, 2)
inserting/deleting words, or 3) giving terms used false/unsual meanings.

Due Process of Law. Assuming court could expand the law, it could only apply such
expansion prospectively. This case asks for retro application, which is impermissible
insofar as it is unforeseeable. Such application would deprive D of due process of law b/c
there is no notice (fair warning) that his contemplated conduct constituted a crime.

So is it unforeseeable? Yes.

Dissent

Penal Code provides that is not subject to strict interpretation of common law. It should be more
loosely construed, in order to promot justice.

Accordingly, argues for an expansion of human existence beyond birth and phsycial death.
Courts do it on one end - what once was a corpse is now a "human being" - so courts should be
allowed to do it on the other end (a viable fetus should be a "human being").

Notice argument.

Absurd to think D read Blackstone and relied on the "born alive" requirement to be a "human
being" b/f kicking his ex-wife's womb.

DP only precludes prosecution:

under new status insufficiently expliecit regardin the specific conduct proscribed, OR

under a preexisting statuts by means of an unforeseeable judicial enlargement.

In this case, homicide statute on book since 1850. Just b/c courts have not yet
determine the present question does not render unforeseeable a decision determining
that a viable fetus is a "human being" under those statutes.
Dissent Hypo

In 1850, a drowned child would be dead by statute (brain death). Today, the child would be revivable
- he is not dead under the statute. So in 1850 stabbing the kid would not be murder, but today it is.
As much as this analysis to death, it applies to birth.
Johannes de Silentio