CRIMINAL LAW
Katy Koon
Professor Hoffheimer, Section 1
Spring 2012
1. Stages of Criminal Procedure
a. Crime
b. Arrest – establishes personal jurisdiction.
c. Initial Appearance – hear charges, set bail.
i. This is different if someone is indicted before they’re arrested.
d. Preliminary Hearing – judge determines if there’s probable cause to hold D
until grand jury can decide whether to indict.
e. Grand jury – must decide if there will be an indictment.
f. Arraignment – D is brought into court and read the indictment; D enters plea.
g. Trial
i. Jury must swear to return a true verdict.
ii. Right to jury trial may be waived, and then it’s a bench trial.
iii. Critical point is when the judge gives jury instructions.
iv. After instructions, jury finds verdict.
2. Sources of Law – always ask yourself what the source of legal authority is.
a. Common Law – in the historical sense
b. Model Penal Code – it’s more of a suggested, not intended to be adopted
verbatim; many states have adopted MPC into law, but not MS.
c. MS Law
3. Right to Trial by Jury
a. 6A gives right to trial by jury for criminal cases.
i. Binding on both state and federal gov’ts.
ii. Applicable only to offenses punishable by more than 6mos jail time.
iii. Requires at least 6 jurors, but 12 is best.
iv. A substantial majority must vote for conviction (9/12 is substantial).
b. 7A gives right to trial by jury for civil cases.
i. Binding on only federal gov’t.
4. Burden of Proof
a. Prosecution has BOP to prove “beyond a reasonable doubt of every fact
necessary to constitute the crime charged.”
b. Raised in In re Winship – beyond a reasonable doubt required by Due Process.
c. Courts must be careful defining “reasonable doubt.”
i. Definitions that are quantitative are normally bad.
1. It’s qualitative.
ii. Safest thing is to NOT define it.
iii. Court may define it, but could lead to appeal.
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d. Circumstantial Evidence – roof beyond a reasonable doubt can be proved by a
totality of the surrounding circumstances.
i. E.g., D found drunk and asleep in car w/ car started and lights on. Three
beer cans were on the floor. Circumstantial evidence proved beyond a
reasonable doubt he had been drinking and driving (Owens).
ii. Circumstantial Evidence and MS – MS requires guilt proven solely on
circumstantial evidence to be “beyond a reasonable doubt,” AND “no
other reasonable hypothesis of innocence” (very high standard).
5. Jury Nullification
a. Jury can acquit w/o stating its reason and no matter its justification, its verdict is
not reversible.
b. This is the jury’s power to acquit a person they believe is guilty beyond a
reasonable doubt if they choose to disregard the law.
c. Good – safeguard against morally unjust or socially undesirable convictions.
d. Bad – jury is violating its oath to obey the law.
e. Ragland – jury nullification is not a right even though it is a power.
i. Court doesn’t want to encourage jury nullification by giving instructions
regarding the power’s existence.
ii. Jury instructions that say jurors MUST convict if certain elements are met
is ok.
6. Terms
a. Habeas Corpus – civil procedure to test the legality of someone’s confinement;
prevents Congress from suspending an inquiry into someone’s confinement.
b. Bill of Attainder – forbidden in the Constitution – special legislative act
providing capital punishment w/o a trial for a person guilty of a high offense
such as treason or a felony.
c. Treason – attempting to overthrow the gov’t of the state to which one owes
allegiance, either by making war or supporting its enemies.
d. Double Jeopardy – if there’s an acquittal or conviction, can’t be tried again for
the same thing.
i. If it’s jury trial, it attaches when jurors are admitted to try the case
truthfully.
ii. Bench trial, it attaches when the first witness is sworn in.
e. Corpus Delecti – you have to have the “body of the crime,” which means some
substantial evidence.
i. It refers to the material or substance upon which a crime was committed
(body, house, etc.).
ii. It refers to the substantive fact of crime; evidence of act and agency.
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7. Theories of Criminal Punishment
a. Utilitarianism – focus on punishment in terms of desirable consequences.
i. General Deterrence – punish to deter others (this is utilitarian b/c if we
punish to deter others, that’s a good consequence).
ii. Specific Deterrence – punish to deter the same offender from reoffending.
iii. Reform Theory (rehabilitation) – goal is to reform offender rather than to
secure compliance through fear and punishment. Punish not to hurt, but
to make them better people (drug rehab sentences).
iv. Incapacitation – prevents D from committing crimes if
segregated/isolated (death penalty, house arrest, etc.).
b. Retribution – punishment is justified when it’s deserved; offender should be
punished whether or not it will reduce crime.
8. Requirements Under CL (MS follows this).
a. Elements – must prove all the elements of a crime w/ evidence and beyond a
reasonable doubt.
b. Mens Rea – must prove a “culpable state of mind.”
i. Knowingly, willingly commit the crime.
ii. 3 States of Mens Rea
1. General Intent – intentional volitional doing of the prohibited act
2. Specific Intent – must have some intent to do something more than
the mere prohibited act; intent to accomplish the precise criminal
act w/ which one is charged (robbery, assault, forgery, etc.).
a. An honest/reasonable mistake of fact is a defense (except
for statutory rape).
3. Criminal Negligence – gross breach of duty to care
c. Actus Reus – actor must act out the culpable state of mind; must commit the
crime.
i. Normally requires a prohibited action, but sometimes can be an omission
when there’s a duty to act.
I. NECESSITY
1. Necessity – justification defense
a. Actor, as a result of some force/condition, must choose b/t violating a relatively
minor offense and suffering a substantial harm to person/property.
b. Harm to be avoided > Harm from committing the offense
2. Queen v. Dudley and Stevens – seaman kill one of their own to survive while stranded.
a. Court says no duty to save your own life at the expense of another exists.
b. Guilty verdict b/c otherwise, necessity defense would be easily abused.
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3. Knight – only case where necessity has been raised in MSSC.
a. D runs over child on big wheeler and ran from the scene b/c of an angry crowd,
but he complies w/ the statute b/c he left everything necessary to help cops
identify him and to help the kid get to the hospital.
b. Where the purposes of the statute are satisfied, D is entitled to a defense if he
feared for his safety.
MPC Allows defense and lets jury decide w/ balancing approach.
Justification as a Defense – justification is an affirmative defense but does not
abolish or impair any remedy available in a civil action.
Choice of Evils – allows for necessity as a defense under certain conditions.
 Actor must believe conduct to be necessary to avoid a harm or evil to
himself or to another. (Subjective to Actor)
 The harm or evil avoided must be greater than the harm or evil
committed. (Jury weighs)
 The specific law must provide no exceptions or defenses.
 Necessity can’t have been specifically excluded as a defense by the leg.
Actor can’t be reckless or negligent if offense committed has an element
of recklessness or negligence.
CL
Necessity is NOT a defense
MS
Necessity IS a defense, provided that:
1) Act is to prevent significant evil.
2) No adequate alternative.
3) Harm caused must NOT have been disproportionate to harm avoided.
4) Actor must have a reasonable (objective) belief that imminent danger of
death OR serious bodily harm exists.
Note: In MS, necessity is NOT a defense for drunk driving, even if in an
emergency, e.g. taking wife to hospital to deliver baby.
II. ACTUS REUS
1. Actus Reus = “Guilty Act”
2. Person is not guilty unless the conduct, which must include a voluntary act, and which
must be accompanied by a culpable state of mind, is the actual and proximate cause of
the social harm, as proscribed by the offense.
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3. Must be VOLUNTARY.
a. Exception – omissions may establish liability if there was a duty to act.
i. Duty if a statute imposes a duty.
ii. Duty if there’s a certain status relationship (parents/children,
innkeeper/guest).
iii. Duty if there’s a contractual duty to care for another (lifeguard).
iv. Duty if one has voluntarily assumed the care of another and secluded
other from providing care (take someone home to care for them).
1. Especially applies if left victim worse off than how they were
found or if D effectively dissuades other rescuers.
v. Duty if they create the risk, particularly done as their wrongdoing.
4. Voluntary Acts
a. Martin – drunk man taken onto hwy and arrested for public drunk.
i. Voluntary aspect implied in the statute is absent b/c the man was
involuntarily taken from his home to the hwy.
b. Utter – drunk war veteran snaps and stabs son.
i. Automatism typically a defense b/c can’t control actions in an
unconscious state, but this state of unconsciousness was voluntarily
induced, which makes automatism NOT a defense.
5. Omission (as an act)
a. Beardsley – no legal duty to act to save “lady friend” from overdosing unless one
of the exceptions applies.
b. Barber – doctor removes feeding tubes from dying patient does not commit a
voluntary act, but only an omission. No duty to act when family requested tubed
to be removed.
6. MPC – Requirement of a Voluntary Act
a. (1) 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
i. MPC requires only ONE voluntary act – so long as there’s one voluntary
act, D is guilty, even if he didn’t commit other elements voluntarily.
b. (2) The following are NOT voluntary acts:
i. reflex or convulsion
ii. unconscious movement, e.g. sleepwalking, conditioned response,
automatism
iii. hypnosis
iv. bodily movement that otherwise is NOT the product of the effort or
determination of the actor
c. (2) No liability for omission to act unless:
i. the omission is made illegal by law; duty to act is imposed by law
d. (4) Possession is an act if:
i. The possessor knowingly procured or received the thing possessed; or
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ii. Was aware of his control thereof for a sufficient period to have been able
to terminate his possession.
III. MENS REA
1. Mens Rea = “Guilty Mind”
a. Guilty/culpable mind is required unless it’s a strict liability crime.
b. Broad Meaning – guilty mind; vicious will; moral blameworthiness (e.g.,
culpability and general intent).
c. Narrow Meaning – mens rea is the mental state D must have w/ regard to the
“social harm” elements set out in the definition of the crime (e.g., specific intent).
d. Why do we have mens rea?
i. Punishing one who lacks culpability is ineffective/wasteful (can’t deter).
2. Regina v. Cunningham – D removes gas meter, causing gas to leak into P’s home.
a. Malice
i. Does not mean “wickedness.”
ii. Requires
1. An actual intention to do the particular harm, OR
2. Recklessness as to whether such harm would occur.
3. Inferred Intent
a. Conley – kid at party hits another kid w/ a wine bottle, permanently injures him.
i. It’s fair and normal to infer intent from result (can be inferred D
intended to cause great bodily harm).
4. Transferred Intent
a. CL – transfers intent from X to Y; D need only have intent to kill someone.
i. Guilty of 2 crimes, the murder and the attempt to murder the other guy.
b. MPC – does it through causation; D responsible for unintended results.
c. MS – “with deliberate design” = death of person killed or any other human being.
5. General v. Specific Intent
a. Specific intent crimes require a higher intent/purpose/result other than the
performance of the act.
i. State must pretend you had the requisite intent or purpose listed in the
statute.
ii. Requires mens rea element along w/ actus reus element.
iii. Ex: Theft – requires intent to deprive the owner permanently.
b. General intent crimes only require the performance of the act.
i. No particular mental state set out in the statute, so state only has to prove
actus reus.
ii. General intent is reserved for crimes that permit conviction on the basis of
less culpable mental states, like recklessness or negligence.
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iii. General intent is any mental state (expressed or implied) in the definition
of the crime that relates solely to the acts that constitute the social harm
of the offense.
iv. No need for additional intent/purpose.
v. Ex: Assault – only requires you intend your actions, not a particular result.
6. MPC Levels of Culpability – not guilty unless acted P, K, R, or N.
a. Must have required degree of culpability for each material element of the offense.
b. Purposely – person acts purposely if...
i. If the element involves the nature/result of his conduct, it is his conscious
objective to engage in conduct of that nature or to cause such result, OR
ii. If the element involves attendant circumstances, he is aware of such
circumstances or believes/hopes they exist.
c. Knowingly – person acts knowingly if...
i. If the element involves the nature of his conduct or attendant
circumstances, he’s aware his conduct is of that nature or such
circumstances exist, OR
ii. If the element involves a result of his conduct, he’s aware that it’s
practically certain the conduct will cause a result.
iii. Willful Blindness – this is not a defense under MPC
1. Knowledge is established if a person is aware of a high probability
of its existence, unless he actually believes that it doesn’t exist.
2. “Knowingly” established if willfully blind.
d. Recklessly – conscious disregard of a substantial and unjustifiable risk.
i. The disregard must involve a gross deviation from the standard of conduct
that a law-abiding citizen would observe in the actor’s situation.
ii. Involves 2 Standards
1. Objective Standard – substantial/unjustifiable/gross deviation
from the standard of a law-abiding person.
2. Subjective Standard – actual awareness, conscious disregard.
e. Negligently – failure to perceive a risk one ought to be aware.
i. Purely Objective – involves a gross deviation from the standard of care a
RPP would observe.
ii. Different from recklessness b/c recklessness involves a conscious creation
of risk.
f. Hierarchy – the levels of culpability are a hierarchy.
i. If you establish one level that has others under it, then that level and all
the ones under it will be assumed.
ii. Ex: if you acted purposely, then you also acted knowingly, recklessly, and
negligently.
iii. Ex: if statute requires reckless mind, can be proved by showing knowing
mind.
g. Rules of Construction
i. For elements where no level of culpability is given, it’s presumed to equal
the culpability level of the other elements.
ii. Where entire statute is silent on culpability, can use recklessly or higher.
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iii. “Negligently” can only be a level of culpability under the MPC if the
legislature specifically requires it.
h. Purpose of Sec. 2.02 – replaces confusing CL language w/ the four levels of
culpability; discards “general” and “specific” intent crimes.
i. Willfulness standard is satisfied by acting purposely or knowingly.
III. STRICT LIABILITY
1.
2.
3.
4.
No mens rea required
Silence in the statute w/ regard to mens rea doesn’t usually mean SL.
Under MPC, no strict liability b/c must have some level of culpability for each element.
SC – no due process problem w/ SL crimes.
5. Three Types of SL Offenses (CL)
a. Jurisdictional Crimes – crime prohibits doing X w/in a certain jurisdiction.
i. Not a defense that D was unknowingly in that jurisdiction.
b. Public Welfare Crimes – court will tell us what these are.
i. E.g., possession of an unregistered firearm
ii. If punishment outweighs the purpose of the law (regulating social order),
mens rea most likely required (look at legis. history to determine).
iii. If light penalty, mens rea likely not required.
c. Statutory Rape
6. No Defense of Mistake!
7. Must determine the legislative intent of the statute.
a. When there’s no mens rea requirement in the statute, the court must determine
if the legislature meant for it to be a SL crime.
8. Factors Courts Use to Determine if it’s a Public Welfare Offense, and thus not requiring
mens rea.
a. Malum Prohibitum v. Mal In Se
i. A crime that is “prohibited by law” as opposed to “bad intrinsically” is
more likely to be a public welfare offense.
ii. Rather defend a mal in se crime b/c that requires the state to prove intent.
b. Newer offenses are more likely to be SL offenses and for the public welfare.
i. Historical crimes more likely to require mens rea.
c. Objective
i. If the law is punishing to prevent risks or dangers to the public, more
likely to be an SL offense.
ii. If the law is punishing an individual for wrongdoing, probably requires
intent.
d. Regulation – the more regulated, the more likely to be a public welfare offense.
e. Hazardous – if creates a great risk of harm to a great number of people, more
likely to be a public welfare offense.
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f. Severity – the more severe the punishment, the more likely mens rea is
required.
MPC

No strict liability offenses b/c MPC requires every element to have a
level of culpability.
 Two Exceptions:
1) Material Elements- jurisdiction, venue, etc. E.g. Actor is not required to
know he is performing an act w/in a certain jurisdiction.
2) Statutory Rape- while MPC prohibits SL, the crime of Stat. Rape prohibits
the defense of ignorance or a reasonable mistake of age when victim is
below 10. Inconsistency as to SL.
CL
Three types of SL crimes:
1) Jurisdictional Crimes
2) Public Welfare Offenses- e.g. Staples v. US- crime to posses an
unregistered firearm
3) Statutory Rape



A minority of CL jurisdictions require a mens rea for victim’s age in Stat
Rape.
Majority does not allow for mistake of age defense, e.g. Garnett v. State20 yr. old retard has sex w/ 13 year old he thought was older.
Silence does not presume SL.
Presumption against construing statutes as SL.
MS
MS does not require mens rea w/ respect to victim’s age for statutory rape
or sexual battery.
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IV. MISTAKE
1. Mistake of law or fact can potentially negate an element of mens rea in the offense.
2. Mistake of fact is typically a defense, but mistake of law is usually NOT a defense.
3. Ignorance of the law is never an excuse.
A. MISTAKE OF FACT
1. Navarro – man “steals” wooden beams, believes them to be abandoned.
a. A good faith belief (mistake of fact) does NOT have to be reasonable to be a
defense.
b. Good faith mistake is a valid defense whether reasonable or unreasonable.
MPC
Allows for mistake of fact as a
defense when it eliminates one
of the mens rea elements
required.
Exception: defense NOT
available if actor would have
been guilty of another crime had
the situation been as he
supposed.
CL
Mistake of fact is available
as a defense, but
distinguishes b/t specific
and general intent.

Specific Intent Crimesmust be a good faith
mistake; can be
unreasonable or
reasonable.

General Intent- the
mistake must be in good
faith and reasonable.
Exception: The Legal Wrong
Doctrine- If D’s conduct,
based on the facts as he
believes them to be,
constitutes a crime, he may
be convicted of the more
serious offense of which he is
guilty.
2. Note – willful blindness is bad faith, so doesn’t work here.
MS
Closer to CL
than MPC.
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B. MISTAKE OF LAW
MPC
Does not allow for mistake as to the
existence, meaning or application of
a law, unless the specific code
provides.
Belief that conduct does not
constitute an offense is not a
defense unless:
i) The statute hasn’t been
published; or
ii) D relied on an official
(erroneous) statement of
the law by a party or
statute that has duty of
enforcing/applying/inter
preting the law.
CL
Mistake (ignorance) of law is NO
excuse.
MS
Exceptions:
 Reasonable Reliance: excused
for reasonably relying on an
official statement of the law,
later determined to be
erroneous, obtained from a
person or public body w/
responsibility for the
interpretation, administration or
enforcement of the law defining
the offense.
 Fair Notice: if not made aware,
would be a due process defense.
 Statute Requiring one to Know
the Law: Cheek v. US; rare.
V. CAUSATION
1. Causation is only an issue w/ result crimes.
2. Requires both “both for” cause and “legal” cause.
3. Must prove beyond a reasonable doubt.
4. Cause in Fact
a. But-for Cause – the social harm wouldn’t have occurred BUT FOR D’s act.
i. Problems arise when there’s multiple actors who possibly caused the
result/death.
b. Multiple But-for Causes:
i. Acceleration Theory – must show acceleration of the harm; but for the
voluntary act, would the social harm have occurred when it did?
ii. Substantial Factor Test – 2 concurrent causes, whether either
simultaneous and independent cause would have killed victim; but for D’s
voluntary act, would the social harm have occurred when and as it did?
5. Proximate (Legal) Cause
a. Purpose is to determine who or what events that satisfy the cause in fact should
be held accountable for the resulting harm.
b. A result that occurs in a natural and continuous sequence.
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c. Unforeseen results case problems. As do intervening/superseding events.
MPC



MPC has a single causal standard.
Requires “but for” causation.
Distinguishes on whether offense requires purposely, knowingly,
recklessly, or negligently.
Purposely/Knowingly- causation is met when it is w/in the result they
contemplated

Even if it’s to a different person or property

Also causation if it’s the same kind of injury/harm contemplated
and it’s not too remote or accidental.
Recklessly/Negligently- causation is met when injury is w/in the risk of
harm the actor is aware of (reckless) or should be aware (negligence).

Even if it’s to a different person or property than contemplated

Also causation if it’s the same kind of injury or harm as the probable
result and is not too remote or accidental.
CL



Must find “but for” and “proximate cause.”
Must be a “natural and continuous sequence” that causes the result,
“w/o which it would not have happened.”
If there is a natural and continuous sequence, will be superseding.
o Superseding will break the causal chain if it’s unforeseeable.
 Two types of superseding causes:
1) Coincidental: unrelated to original acts of D; will break the causal chain
if unforeseeable.
2) Responsive: provoked by the original acts of D; will break causal chain if
unforeseeable AND abnormal.
 No defense of contributory negligence for criminal law, but ct may
consider in determining prx cause.
 Victim contribution will break the causal chain when unforeseeable,
and victim fails to take steps to prevent the harm.
 Negligence of a 3rd Party is generally not superseding, but gross
negligence may be.
*The free intervening voluntary act of a human should break the
causal chain.*
MS
A couple of MS cases have held that proximate cause is a question of fact
for the jury. MS tends to follow the CL analysis.
6. Strict Liability – if a particular result is an element for a SL crime, causation is
established only if the actual result is a probable consequence of the conduct.
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VI. HOMICIDE
1. All jurisdictions define homicide differently.
2. Requires “but for” and “legal cause” b/c it’s a result crime.
3. Fetuses
a. CL doesn’t treat a fetus as a human being, so not homicide.
b. Born Alive Rule – CL requires fetus to be born alive and then die in order to be
homicide. Many jurisdictions have changed this.
c. CA has defines fetus as human being for purposes for murder.
A. MURDER
1. There are NO DEGREES of murder in CL/MPC/MS, but some state legislatures impose.
MPC Murder- Criminal homicide (P,K,R, causing the death of another human,
not fetuses) constitutes murder when:
 Committed Purposely or Knowingly, OR
 Recklessly- under circumstances that show an extreme
disregard/indifference for the value of human life.
o If only reckless, manslaughter.
o If extreme disregard/indifference for the value of human life,
murder.



There are NO degrees of murder.
Intent can be inferable.
Note: There cannot be a negligent murder.
MPC does not specifically recognize that killing someone while committing a
felony is murder. However, this would fall under the recklessly category.
 MPC presumes recklessness when attempting certain felonies.
CL
The unlawful killing of another human being w/ malice.
 Unlawful
 Killing
 Human being (not fetus) w/
 Malice aforethought (Malice pretense)
Malice- malice aforethought. (only element to prove) It is the mental
state that accompanies the killing of the other human being that makes the
homicide murder. If we figure out what malice means, we know what
murder is at CL. However, malice and malice aforethought have unresolved
meanings.
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Types of Malice:
 Intent to kill (no matter how pure the motive)
 Intent to inflict serious/grievous bodily injury.
 Depraved heart/abandoned malignant mind. Some form of extreme
recklessness.
 Causing death w/in the commission of a felony (felony murder rule).
Malice can be express or implied (1 and 2 are express, 3 and 4 are implied).
There is NO degree of murder at CL. Degrees are a statutory addition.
 California defined “abandoned and malignant heart” as: i) wanton
disregard for human life and a high degree of probability that act will
result in death; ii) knowledge that the conduct endangers the life and
deliberate disregard of the risk.
 CA also adds fetuses, allowing it to satisfy the human being element.
Year and a Day Rule – victim must die w/in a year and a day after the
injury for a murder conviction (doesn’t apply to manslaughter) (not in MS).
MS
Simple Murder (not capital)
 Killing of a human being w/out the authority of law by any means
or in any manner shall be murder in the following cases:
(a) Deliberate design to effect the death of any human being
(unborn child included) - (proof of an intent to kill) malice
(particularly the intent to kill forms, but NOT something more like
premeditation or deliberation.)
(b) Act eminently dangerous to others evincing depraved heart
(disregarding human life) regardless of human life.
(c) Felony other than [certain felonies that fall under capital murder].

Felony murder doctrine – causing death during commission or intent to
commit felony
2. Premeditation – jurisdictions differ over the amount of time needed to premeditate
before the homicide is committed.
a. Some allow intent to be formed when there’s some time to reflect (Guthrie
mercy killing).
b. Some allow premeditation to arise anytime during the commission of the
murder (b/t the first stab and the 15th stab) (Schrader – premeditation = intent).
c. Some require a longer period to reflect to constitute premeditation/deliberate
(couple seconds, hours, or days).
d. What does adding premeditation do? Does it replace intent?
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e. Schrader – premeditation and deliberation can be formed at the time of the
killing; defines premeditation and deliberation as meaning basically just “intent.”
f. Morrin – must be a “long enough time to reflect” to constitute premed/delib.
g. Guthrie – must be some time to reflect.
h. Forrest – man shoots dying father 4 times in mercy; number of shots may
indicate premed/delib.
i. CA says the opposite, multiple shots indicate not premed/delib. and a
lethal shot indicates premed/delib.
i. Multiple stabbings don’t necessarily show premed/delib. It’s possible to have an
impulsive un-premeditated killing w/ multiple stabbings.
B. VOLUNTARY MANSLAUGHTER
MPC
CL
Manslaughter – homicide which would otherwise be murder, committed
under the influence of extreme mental or emotional disturbance or which
there is reasonable explanation or excuse.
Elements:
1. Must be murder (defined as “P,K, or R killing under circumstances
manifesting an extreme disregard for the value of human life” [reckless])
2. Committed under the influence of extreme mental or emotional
disturbance: this is broad language that does not limit.
3. There is reasonable explanation or excuse (objective).
------------------------------------- Cts are beginning to rule that if there is evidence of extreme mental or
emotional disturbance, the last element of reasonable explanation
should be determined by the fact finder.
Manslaughter if...
 Gross/criminal negligence, OR
 Killing w/o malice during an unlawful act, OR
 Mitigated from murder (through provocation).
Remember, CL has no degrees of murder, so a killing will be murder or
manslaughter depending on the presence of malice.
Manslaughter is “an intentional homicide done in the sudden heat of
passion caused by adequate provocation, before there has been a
reasonable opportunity for the passion to cool.”
Voluntary Manslaughter Elements:

There must have been legally adequate provocation.

The killing must have been in the heat of passion.

Must have been a sudden heat of passion (must’ve followed the
provocation before they had a reasonable opportunity to cool down).

Must have been a causal connection b/t the provocation, the passion,
and the fatal act.
16
o No cooling off period: the time during which the passions of a
reasonable person would have cooled.
Adequate provocation: something generally calculated to inflame the
passion of a reasonable man. CL recognizes certain acts that mitigate
murder to manslaughter, and are thus “legal provocation”:
1. Adultery (Caught in the act, killed either spouse or other adulterer)
2. Mutual Combat
3. Assault/battery (serious/extreme) on defendant or close relative.
4. Injury to Close Family Member
5. Illegal Arrest (resisting unlawful arrest)
6. Imperfect (unreasonable) Self-Defense
NOTE: words are not enough for provocation.
---------------------------------------
Many CL jurisdictions have evolved into requiring that provocation
be something “generally calculated to inflame the passion of a
reasonable man.”

The trend is to relax/expand the categories of provocation.
o Camplin (where the RPP provocation standard was modified to
consider the age of the sodomized child).
o Would the provoking elements lead a reasonable person to act in
a rage?

Some courts will not expand the categories, see Girouard where the
wife’s words (calling husband a “lousy fuck”) were not enough.
MS
This is a statutory codification of CL, but adds use of a dangerous
weapon.
 Rowland (Miss. 1984), killer and wife in argument; wife told killer about
an ongoing adulterous affair; he became angry and shot her; TC refused
manslaughter instruction; MSSC reversed b/c the existence of malice
and adequate provocation is a question of fact for the jury.
 Elements:
1. Killing of a human being
2. without malice
3. in the heat of passion
4. In a cruel or unusual manner or by use of a dangerous weapon
5. without the authority of law
6. not in necessary self-defense
*A heat of passion killing in MS without a cruel, unusual, or dangerous
weapon would NOT be manslaughter.

17
C. INVOLUNTARY MANSLAUGHTER
MPC A killing that is done recklessly.
Recklessly = Actual awareness and unconscious disregard of a risk.
 Note: if killing is done recklessly under circumstances manifesting an
extreme disregard for human life, it’s enough for MPC murder.
 Remember: MPC has a separate crime for negligent homicide, which
requires only that D should have been aware of the risk.
CL
A killing without malice that occurs as the result of an unlawful act.
Unlawful Act:
 Some sort of crime (e.g. misdemeanor)
 An unlawful act b/c of the presence of some kind of criminal
negligence.
 Remember if the unlawful act is a felony, it will probably be felony
murder and NOT involuntary manslaughter.
Note: Criminal negligence is manslaughter; extreme recklessness is murder.
MS
Elements:
 Killing of a human being.
 Done without malice
 With culpable negligence (reckless and wanton conduct of such
character as to show utter disregard for the safety (not life) of
others) – far beyond civil negligence.
o Disregard for life of others is murder; disregard for safety is
manslaughter.
Note: the line is thin b/t “culpable negligence” which is manslaughter, and
“act eminently dangerous that shows a depraved heart regardless of human
life” which is murder.
Also, the culpable negligence required is a higher standard than mere civil
negligence.
Aggravated DUI § 63-11-30: Applies to homicide:
Elements:
 Drive drunk (.08, .02-underage, .04 truck drivers)
 Negligence (ordinary civil negligence)
 Death occurs or certain listed injuries
1. Misdemeanor Manslaughter (MPC rule)
a. Elements
i. Unintended homicide
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ii. Occurring during commission of an unlawful act not amounting to a
felony.
D. CAPITAL MURDER
1. Retribution and deterrence are the policy goals of death penalty.
2. Witherspoon – only people that don’t have a problem w/ death penalty can serve as a
juror.
3. McCleskey – discrimination in due process can’t be proven w/ statistics; must prove
actual discrimination in each case (i.e., sentencing someone to death b/c of their race).
4. Furman – unlimited juror discretion in sentencing to death is unconstitutional.
a. Some justices say it’s unconstitutional b/c cruel and unusual under “evolving
standard of decency.”
b. Others say leaving the choice up to the jury is a failure to apply clear legal
guidelines.
5. Woodson – mandatory death sentences (no jury discretion) is unconstitutional.
6. Gregg v. GA
a. As long as punishment meets evolving standard of decency and is not an
unnecessary infliction of pain, it’s constitutional.
b. Provides statutorily aggravating circumstances that must be proven for death
penalty.
c. Imposes bifurcated trial (guilt phase then sentencing phase).
d. Then automatic appeal.
e. SC said this is constitutional, so gives example for other states to follow.
MS
Capital Murder is:
 Murder of a peace officer or fireman
-acting in official capacity or b/c of some act done in official capacity
-with knowledge that victim was a peace officer/fireman.
 Murder by a D who’s under a life sentence.
 Murder by use of detonation bomb or explosive device.
 Murder by one who receives anything of value for killing.
 Killing someone while in the act or attempt of a felony listed here:
1. rape
2. burglary
3. kidnapping
4. arson
5. robbery
6. sexual battery
7. sex w/ kid under 12
8. nonconsensual unnatural intercourse w/ mankind (gay stuff)
9. felonious child abuse/battery
 Murder on educational property.
 Murder of an elected official w/ knowledge that the victim was a public
official.
Note: “human being” includes unborn child.
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CL – all murders punishable by death.
E. FELONY MURDER RULE
MPC 

NO felony murder rule.
Murder requires one of three (purposely, knowingly, or recklessly
(extreme disregard for human life) mental states.

However, MPC allows a presumption of recklessness when the
killing occurred during certain felonies
o (rape, burglary, kidnapping, arson, robbery, sexual battery,
felonious escape)
o or flight after committing or attempting to commit one of
these felonies.
CL

MS




Rule: A killing in the perpetration of a felony is murder.
o Majority: Attempt to commit a felony that results in death is
murder.
o Majority: Flight after a felony that results in death is murder
Killing
W/o design to kill
During any felony is MANSLAUGHTER?
BUT while committing these felonies (or attempt), it’s capital
murder.
o Rape
o Burglary
o Kidnapping
o Arson
o Sexual Battery
o Unnatural intercourse w/ child under 12
o Nonconsensual unnatural sex w/ mankind

OR any attempt to commit any of these offenses.

Note – felony murder w/ listed felonies is a capital offense.
1. Foreseeability of the death is not required.
a. Stamp – strict liability w/ FM rule regardless of foreseeability.
b. Fuller – high speed chase after thieves steal tires and kill someone when running
red light; foreseeability of the death not required.
2. Notes
a. Make sure you have all the elements under the felony before even thinking
about FM rule.
3. Limitations on the Felony Murder Rule
a. Every jurisdiction limits the FM rule and a few do away w/ it.
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b. Inherently Dangerous Felony – felony must be one that creates a high
probability or substantial risk of death.
i. MS felony rule says any felony, but not all jurisdictions have this limit.
ii. Courts split on how to determine if inherently dangerous.
1. Some look at the felony as committed in this particular instance.
2. Others look at the felony and its elements in the abstract – is it
possible to perform this act w/o creating great risk? If yes, not
inherently dangerous.
c. Merger Rule – felony must be independent and not “included in fact.”
i. Felony must be independent of the homicide, not included in the act.
ii. E.g., manslaughter, attempted murder, felonious assault are all “included
in fact.”
iii. Every jurisdiction has some form of the merger rule.
iv. MS lists the felonies under FM rule to prevent confusion as to which are
“included in fact.”
v. Smith – (child abuse  murder case) FMR’s purpose is to deter, so if it’s
unlikely to deter the initial felony b/c of it’s application, there’s no need
to apply it.
d. Death “in Furtherance of” the Felony – death must advance felony in some
way.
i. Must be w/in the time period immediately following the felony.
ii. Agency Approach (majority) – FMR won’t apply unless there’s an agency
relationship b/t the felon and the killer. Under this approach, a co-felon
would be liable for a killing caused by another felon.
iii. Proximate Cause Approach (minority) – FMR will apply if the felon set
in motion the acts that resulted in victim’s death.
iv. Some jurisdictions say FMR won’t apply if one of the felons is the victim.
e. No Strict Liability Felonies – FMR won’t apply b/c there’s no mens rea
requirement for the felony.
f. Mal In Se – FMR won’t apply unless it’s a mal in se crime.
g. Some jurisdictions only apply FMR to CL felonies.
VII. RAPE AND SEXUAL BATTERY
MPC [don’t need to know for exam]
CL
Requires carnal knowledge, force, and against the victim’s will.
1. Carnal Knowledge of a woman: aka (sex)
o male/female genital, sexual intercourse.
o Some penetration is required, but no requirement that it be complete
act of intercourse. Requires only some genital contact.
2. Forcibly:
o Threat of serious bodily harm that reasonably induces fear.
o Threat of physical injury
o Marital Exception: if married, can’t prove this element.
o Require evidence of resistance. (Trend is moving away from
21
resistance.)
3. Against the will of victim:
o Lack of consent
o Require evidence of resistance. (Trend is moving away from
resistance.)
4. Spousal exception - husband could not be guilty of raping wife.
Resistance: While resistance is not an element, it’s an evidentiary
requirement to prove Rape [force and lack of consent elements]. Verbal
resistance may suffice.
Note: defense may be reasonable good faith belief there was consent b/c
it removes the mens rea requirement.
MS
Forcible Rape § 97-3-65(4)(a)
1. Sexual Intercourse
2. Forcible
 Or threat of serious injury
-NO lack of consent requirement like CL.
-NO spousal exception to the force element.
-The ‘forcible’ requirement is purely common sense and is not “vague.”
Madere.
-Gender neutral. Male can be raped.
Rape (drugs)
1. Sexual Intercourse
2. Without Consent
3. Rapist Drugs Victim w/out Consent
4. Drugs Prevent Effectual Resistance
- forcible not an element b/c drugs do the job.
- so the drug/alcohol has to have been administered to the victim to the
point where the victim cannot resist.
- Male can be raped.
Statutory Rape:
A) Sexual Intercourse where victim is 14-15:
1. Victim is 36 months or more younger than D.
2. D is 17 years or older
3. Victim is NOT the spouse
B) Sexual Intercourse where victim is 0-13 (under 14):
1. Victim is 24 or more months younger than D.
2. Victim was not the spouse.
-Mistake is not a defense.
-No mens rea requirement for statutory rape.
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-Consent is NOT a defense.
-Sexual Intercourse is defined as “joining of the sexual organs of a male and
female human being in which the penis is inserted into the vagina of the
female.”
-Male can be statutorily raped. But the definition is longer and it doesn’t just
mean b/t male and female.
Sexual Battery: Sexual Penetration w/ (any penetration of another
person– includes sexual intercourse and oral contact with genitals,
also objects):
o Another person w/out consent. [*Force is NOT required]
o A mentally defective, mentally incapacitated or physically
helpless person.
 Mentally defective- one who suffers from a mental disease,
defect or condition which renders that person temporarily or
permanently incapable of knowing the nature and quality of
his or her conduct.
 Mentally incapacitated- one rendered incapable of knowing
or controlling his or her conduct, or incapable of resisting an
act due to the influence of any drug, narcotic, anesthetic, or
other substance administered to that person without his
consent.
 Physically helpless person- one who is unconscious or one
who for any other reason is physically incapable of
communicating an unwillingness to engage in an act.
o A child of 14 or 15, if D is 3 years older. (Same as statutory rape)
o A child under 14, if person is 2 years older. (Same as statutory
rape)
o A child under 18, if person is in position of TRUST or authority
over child: teacher, counselor, minister, etc.
Spousal Exception: MS has a spousal exception that applies to sexual
battery [sexual penetration w/ no consent]. However, the exception does
not apply to forcible misconduct. So, husband can get away w/ sexual
battery against his wife, but not rape.
Note: If someone is “raped,” but only sodomized, the sodomy will not fall
under rape or statutory rape [b/c there’s no sexual intercourse]. However, D
will probably be guilty of sexual battery.
IIX. LARCENY, ROBBERY, AND BURGLARY
1. Don’t stop with just one, the answer could be ALL THREE.
23
A. LARCENY/THEFT
CL
6 elements:
 Trespassory [not trespass to property, but tortious trespass—“violate
possession – an invasion of the right to possession.]
 Taking
 Carrying Away (caption) – easily satisfied. Picking up and moving
toward carrying away.
 Personal Property (asportation)
 Of Another
 W/ Intent to Steal [“animus furandi” permanently deprive and
convert to one’s own use]
-Custody and Possession are different re: the “trespassory” element. A
store owner only gives a customer custody when they show merchandize.
Thus, the customer can still “violate possession.”
-Intent to steal: two requirements:

Intent to permanently deprive the owner of property
permanently, and

To convert the property to one’s own use.

Taking property and destroying it would NOT be intent to steal
element. If intent is JUST to deprive owner b/c don’t like him, not good
enough. The thief must get some benefit out of it even if it’s just giving
it to someone else.
Break Bulk Rule- A bailee is given possession of an item as a whole. When
bailee breaks into it and takes one thing, possession is violated. This rule
abrogated the CL rule where bailees didn’t satisfy the trespassory
requirement.
Defense: B/c theft is a specific intent crime, theft requires a high level of
intent to deprive the owner and convert the property. Thus, mistake is a
defense. If one takes property erroneously believing it to be their own,
they will lack the mens rea.
Hypo: X takes a lamp from Y thinking it is Y’s lamp. However, it is later discovered that the
lamp is actually owned by X. Is this theft?
Answer: No b/c the elements of “trespassory” and “of another” are not met.
B. ROBBERY
CL
Elements:
 Larceny [all 6 elements]
24


From a Person – zone of control/close enough test (immediate
proximity)
By Violence/force or Intimidation
Hypo: X gives letter to bank teller reading “give me all your money.” Robbery?
Answer: Probably not robbery b/c no intimidation. However, if teller knew X had a
gun- robbery.
Hypo: pick pocketing? No because no intimidation
C. BURGLARY
CL
Elements:
 Breaking – Pushing the door open is probably enough. Movement
that creates an unauthorized entry is enough.
 Entering
 Dwelling
 Of Another
 At Night
 W/ Intent to Commit a FELONY [must establish elements for that
felony. Felony is any crime punished by more than a year in
prison/deaths. Felony could be larceny, robbery, murder, rape,
arson, etc.]
-Note: Burglary does not require a theft.
IX. INCOHOATE OFFENSES (ATTEMPT, CONSPIRACY, AND SOLICITATION)
A. ATTEMPT
1. Two Different Forms of Attempt Legislation
a. General Statute – makes an attempt to commit any other crime a felony (or
misdemeanor).
b. Specific Statute – makes an attempt to commit a specific crime a crime
(attempted murder, attempted left statutes).
2. You must have the culpability level of the actual crime.
3. Why Punish? Meant to prevent crime.
MPC
Requires two levels of culpability: the culpability for the crime and
purposely attempting.
Mens rea: Purposely attempting (plus culpability for the actual crime)
25
Actus reus: substantial step (strongly corroborative of a criminal purpose).
Elements:
1) The purpose to commit the target offense and
2) Conduct constituting a “substantial step” toward the commission of
the target offense.
1) Has the kind of culpability otherwise required for the offense, AND (i.e.,
purposely/knowingly,etc.)
a) purposely engages in conduct that would constitute a crime if the
circ.’s were as he believes them to be, (do everything to commit the
crime) OR
b) when causing a particular result is an element, he does something
with the belief that such conduct will cause that result, (gun
misfires) OR
c) purposely does something which, under the circ.’s as he believes
them to be, constitutes a substantial step* in a course of conduct
that would end in the crime being committed.
Substantial Step Conduct – behavior which is strongly corroborative of a
criminal purpose to commit the crime.
MPC examples:

Lying in wait, searching for or following the contemplated victim

Enticing or seeking to entice the contemplated victim of the crime to
go to the place contemplated for its commission.

Scouting out the place contemplated for the commission of the crime.

Unlawful entry of a place where it’s contemplated the crime will be
committed.

Possession of materials to be used in the crime, which are specifically
for such unlawful purpose or which can serve no lawful purpose for the
D under the circumstances.

Pulling together the materials needed to commit the crime close to
the place contemplated for its commission.

Soliciting an innocent agent to engage in conduct constituting an
element of the crime.
For Exam: state mens rea is “purposely” plus culpability requirement for
actual crime. Actus rea is a “substantial step”. A “substantial step” is an act
that strongly corroborates a purpose. The MPC gives examples of a
substantial step.
CL
CL did not have general crimes of attempt, but many laws included attempt.
CL attempt crimes require specific intent and an act beyond “mere
preparation” towards commission of the crime.
26
Mens rea: Specific Intent
Actus Reus: “Act beyond mere preparation” creates a line drawing problem.
Jurisdictions differ over where line goes (b/t mere preparation and crime
itself). Line drawing is inconsistent.
Different standards courts use to determine “beyond mere preparation”:
 Different jurisdictions use different tests to determine what is “beyond
mere preparation”. Think of it as a spectrum with “Idea” on one end, and
“Target Offense” on the other, with different jurisdictions drawing the
point at different points on the line as to how far one has to go to be
beyond mere preparation.
MS
“Every person who shall (1) design and endeavor (specific intent) to
commit an offense, and shall (2) do any overt act toward the commission
thereof, but (3) shall fail therein, or shall be prevented from
committing…” is guilty of attempt.
Elements:
 Specific intent (design and endeavor)
 Overt Act (Fairly broad under Ishee)
 Failure (this element is NOT required by MPC or CL)
Ishee v. State- D sexually propositioned 9 y.o. boy who told his mom; D
didn’t touch, restrain, etc. MSSC held this was enough to constitute an overt
act.
Note – MS law – attempted murder punishable by up to life, but attempted
capital murder punishment can’t exceed 10 years.
4.
Attempted Murder: Requires specific intent to kill. There is NO “attempted extreme
recklessness murder” and NO “attempted depraved heart murder”.
5.
The mens rea required for attempted murder is higher than that required for
murder.
6.
Rule: There must be specific intent to kill. (general common law rule)
7.
Specific intent is needed for conduct and result
8.
Rule: There is NO crime of attempted felony murder. CL requires specific intent
to be guilty of attempt crime. Felony murder has no intent requirement.
9.
Rule: There is NO attempted involuntary manslaughter.
10.
Rule: There IS attempted voluntary manslaughter.
11.
Strict Liability Crimes: Although there is no intent requirement for these crimes,
e.g. statutory rape, one can be guilty of attempted statutory rape. Why? b/c specific
intent as to the age of the victim is not required.
12.
Problems w/ Attempt
27
a. Impossibility
b. Abandonment
c. Jurisdictions are divided as to whether these are defenses.
B. CONSPIRACY
MPC 
If a person for the purpose of promoting or facilitating an offense
(culpability level), agrees that someone will commit or attempt to
commit or agrees to aid such person in the planning or commission of
such crime, they are guilty of conspiracy.
Merger Doctrine
 MPC merges conspiracy ONLY when it is a simple conspiracy (conspiracy
to commit one crime).
o Exception: Merger doctrine applies if conspirators are
planning on “going into business” of committing crime.

Withdrawal – must not only withdraw from the conspiracy, but also
o Thwart its success
o Under circumstances manifesting complete and voluntary
renunciation.



No Pinkerton Doctrine.
No overt act requirement.
MPC permits UNILATERAL (only 1 conspirator).
CL
Pinkerton followed! No conspiracy to commit a general intent crime.
MS
Elements
 2 or more
 Conspire: some tacit understanding.
[specific intent to conspire and intent to accomplish the illegal
objective] remember- intent can be inferred (supra)
 To commit “a crime” [could be any crime]
- or intentional tort
- or something unlawful
Note – no overt act requirement.
Hasn’t decided if follows Pinkerton Doctrine.
No merger.
Fed.
Elements
 2 or more persons
 Conspire
 Any offense against the U.S. or fraud against the U.S.
28

Overt act by any co-conspirator [any act in furtherance of the crime]
Pinkerton followed.
No merger.
1.
Pinkerton Doctrine
a. Co-conspirators are liable not only for conspiracy, but for the crimes committed
by their co-conspirators in furtherance of the conspiracy even if he doesn’t
participate or have knowledge of the crimes.
b. Elements to prove co-conspirator’s guilt under Pinkerton Doctrine
i. D guilty of conspiracy
ii. Substantive offense was committed by co-conspirator
iii. Offense was committed to and in furtherance of conspiracy.
iv. D was a member of conspiracy at the time the offense was committed.
c. Limits to Pinkerton Doctrine
i. Crime not in furtherance of the conspiracy.
ii. Crimes that couldn’t be reasonably foreseen as necessary or natural
consequence of the unlawful agreement.
2.
Why Prosecutors Love Charging Conspiracy
a. Pinkerton – D will be liable for substantive offense committed by his coconspirators so long as they’re in furtherance of.
b. Hearsay – statements made out of court in furtherance of the conspiracy are
NOT excluded from evidence.
c. Venue – conspiracy charge opens up more venue districts.
d. Joinder – charging multiple actors is easier to convict (guilty by association).
e. Continues – doesn’t automatically terminate simply b/c law enforcements have
defeated the object of the conspiracy.
3.
Mens Rea for Conspiracy
a. CL – b/c conspiracy requires specific intent to commit the crime, a party can’t
be guilty of conspiracy to commit a general intent crime. CL HAS NO
CONSPIRACY TO COMMIT GENERAL INTENT CRIMES.
b. MPC – intent is ambiguous; purposely.
c. Knowledge/Purpose and Specific Intent of the crime is required to have
conspiracy.
d. Specific intent can be gained from direct evidence or inferred by circumstantial
evidence where the alleged conspirator has
i. A stake in the venture (supplier)
ii. No legitimate use of the services exist
iii. Volume is disproportionate to a legitimate use
iv. Knowledge/purpose committing serious felony (furnishing something
you know will be used in a serious crime)
e. Summary
i. Must have knowledge.
29
ii. Must have specific intent.
iii. Specific intent can be inferred (see four ways).
4.
Actus Reus for Conspiracy
a. Conspiring – a tacit mutual understanding
b. Indirect evidence will suffice (e.g., cooperative behavior).
c. Mere presence isn’t enough.
d. Fact situations where tacit mutual understanding can be inferred
i. Association w/ alleged conspirators
ii. Knowledge of the commission of the crime
iii. Presence at the scene
iv. Participation in the objective of the conspiracy.
5.
Defenses for Conspiracy Charge
a. Bilateral/Unilateral
i. Bilateral Conspiracy – requires 2 or more persons to conspire.
ii. Doesn’t allow a prosecution if only one person conspires (e.g., w/ a cop).
iii. Requires 2 people, impossible for one person to commit conspiracy.
iv. MPC allows for unilateral conspiracies.
b. Wharton’s Rule
i. If a crime by its nature requires 2+ people for its commission, can’t
convict them of conspiracy to commit it (e.g., selling drugs requires seller
and buyer).
ii. EXCEPTION (third party) – so long as one extra person conspires,
Wharton won’t apply.
c. Protected Victim should not be punished.
i. Victims who are intended to be protected by the law can’t be punished.
d. Withdrawal/Abandonment
i. MPC allowed this if it’s complete and voluntary AND it thwarts the
conspiracy.
ii. Some CL jurisdictions don’t allow it.
C. SOLICITATION
MPC 

CL
MS
With the purpose of promoting or facilitating a crime,
One commands, encourages, or requests another person to engage in
specific conduct that would constitute such crime or for complicity in
that crime/attempt.
When a person invites, requests, commands, hires, or encourages another to
engage in conduct constituting a felony, or a misdemeanor…

MS covers solicitation under attempt basically.

No solicitation crime except for prohibiting solicitation of someone
under 17.
30
1.
Note – generally, a solicitor of a crime will be in accomplice and prosecuted under
accomplice liability.
a. BUT if the solicitee rejects the solicitation, there’s no accomplice liability, but the
solicitor should still be convicted of solicitation.
D. DEFENSES TO ATTEMPT CONSPIRACY, AND SOLICITATION
1.
2.
3.
Impossibility
Abandonment
These defenses are not recognized in all jurisdictions.
1. IMPOSSIBILITYMPC
NO defense of impossibility.
Eliminates impossibility as a defense. Criminal attempt exists when
someone engages in conduct w/ purpose and belief that a crime is being
committed.
(Purposely engages in conduct that would constitute a crime if the
circumstances were as he believes them to be.)
CL
MS

Legal Impossibility: IS A DEFENSE. Goal was illegal but commission
of the offense was impossible due to a legal mistake by her.
o Examples: Accepting stolen goods that aren’t stolen;
attempting to bribe juror that isn’t a juror; shooting a stuffed
deer thinking it’s alive is not attempting to hunt out of season.

Factual Impossibility: No Excuse. NEVER DEFENSE. The actor was
not able to complete the target offense because of some factual
circumstance unknown to them or beyond their control.
o Examples: picking an empty pocket; attempting to steal from
empty car or house; attempt to shoot someone w/ unloaded
gun; raping a corpse.

Problem: The distinction doesn’t really hold up. Going one way or
the other means 20 more or less years in the state pen. Jurisdictions that
have used this have just ended up manipulating it to whatever result
they were trying to get.
Has not dealt w/ this.
2. ABANDONMENT=
MPC Recognizes defense of abandonment if crime of attempt is completed.
31
Abandonment must be complete and voluntary.

If motivated by a decision to postpone or transfer effort to another
object or victim, (changing victim or offense), not complete.

If change mind b/c harder or likely to get caught, not voluntary.
CL




MS
Jurisdictions are divided.
Depends on where line is drawn for the act requirement.
Originally, it was not recognized; it is now recognized under certain
circumstances.
There is a movement to make less action constitute an attempt;
therefore, the defense of abandonment is needed.
Complete and voluntary renunciation (w/ same limits as MPC).
Rule: Abandonment to an attempt occurs when, through verbal urging of the
victim, but no physical resistance or outside intervention, the perpetrator
changes his mind.

Rule is from Ross. D assaults woman and attempts to rape her.
Victim tells D that her daughter will be home soon and that her husband
is dead. As a result, D leaves. D was allowed defense of abandonment,
and court gave above rule. D was acquitted.
1. Attempt – attempter must completely and voluntarily give up attempt (easiest to
abandon b/c alone).
2. Solicitation – solicitor must persuade solicitee not to commit the crime OR prevent the
commission of the crime.
a. Must also be complete and voluntary.
3. Accomplice Liability – accomplice must terminate his complicity prior to the
commission of the crime and wholly deprive of its effectiveness OR give timely warning
to law enforcement.
4. Conspiracy – conspirator must thwart the success of the conspiracy under
circumstances manifesting an complete and voluntary renunciation.
a. Terminated to him when he advises those with whom he’s involved of his
abandonment OR if he goes to law enforcement.
X. CRIMINAL ASSAULT
MPC Simple Assault:
&
 Attempting to cause bodily injury.
MS
OR
 Purposefully, Knowingly , or Recklessly causing bodily injury.
OR
 Negligently causing bodily injury with a deadly weapon.
OR
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
Attempting by physical menace to put another in fear of imminent
serious bodily injury.
Aggravated Assault:
 Attempting to cause serious bodily injury.
OR
 P, K, or R (under circumstances evidencing an extreme
disregard/indifference for human life) causing serious bodily injury.
OR
 P or K causing bodily injury w/ a deadly weapon.
OR
 Attempting to cause bodily injury with a deadly weapon.
Note – an injury that poses a substantial risk of death, serious permanent
disfigurement, or loss of a function of a bodily organ.
CL
3 categories at CL:

Mayhem- unlawful injury which from victim’s standpoint is serious
type of injury. Require physical injury of the type that would “prohibit
one from serving in the King’s army.”

Battery- unlawful application of force.

Assault- attempted battery and present ability to commit the battery.

Irrational Placing in Fear.
e.g. calling someone on phone and threatening is NOT assault b/c there’s no
present ability.
XI. ACCOMPLICE LIABILITY
MPC Person is guilty as an accomplice of the substantive crime if
 For the purpose of promoting or facilitating an offense,
 Either solicits, agrees, aids, or attempts to aid the offense, OR
 Acts with the kind of culpability otherwise required for the
commission of the offense, OR
 Culpability otherwise required + innocent agency.
Note – knowledge of the crime is not enough, but may be sufficient evidence
for the jury to infer proper mens rea.
MPC has NO Natural and Probable Consequences doctrine! To be guilty
as an accomplice, D must have the level of culpability required for the crime.
 Natural and Probable Consequences Doctrine – from Linscott –
foreseeable consequences; murder here was held to be a foreseeable
consequence of armed robbery.
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

E.g. For an accomplice to be guilty of murder (or result crimes), he
must at least have mens rea of “recklessness plus” must have
culpability of crime.
Note: if felony was target crime, the MPC allows a jury to infer
recklessness plus.
Causation: Agreeing to aid, aiding, or attempting to aid is good enough. NO
causation need be shown.


CL


Need NO Principal: Accomplice liability does not require crime to be
committed by a principal. So long as accomplice agrees to aid, attempts
to aid, etc, he is guilty as an accomplice (usually of attempt).
Accomplice before the fact, liability is not limited to that of the
principal.
Give assistance or encouragement (aiding/abetting), OR
Fail to perform a legal duty to prevent with intent to promote or
facilitate.
CL distinguished b/t principals and accessories:
Principals: actually present
 1st degree- present at the scene of the crime.
o Perpetrator that performed all elements.
o Trigger Puller.
o Guilty of the crime of murder/attempted murder, etc.
 2nd degree- present at the scene of the crime, but not performing.
o Provide instruments, look-out, getaway driver, etc.
o Guilty of the crime of murder/attempted murder, etc.
Accessories: constructively present (NOT at the scene)
 Before fact- assisting in commission of crime by providing necessary
resources or materials or information.
o E.g. providing gun. Guilty of the crime of murder/attempted
murder, etc.
 After fact- render assistance to felon w/ knowledge of other’s guilt, in
effort to hinder his detection, arrest, trial, or punishment.
o Guilty of the crime of being an accessory after the fact.
Today, statutory changes allow accessories to be prosecuted b/f principle.
Mens Rea:
 CL requires specific intent (shared) to commit the crime/target offense
and the accessory must have purpose to promote the conduct OR
mere knowledge (depending on the jurisdiction).
 CL Split on intent:
Majority Rule- Peoni rule: requires accomplice to have a true purpose in
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bringing about a criminal result.
Minority Rule- Backun rule: requires accomplice to have mere
knowledge
Actus Reus:
 Mere presence is NOT enough; be aiding and abetting (Vallaincourt – guy
chats w/ friend as he pries open a window).
Foreseeable Consequences Doctrine: A person is an accomplice if he
intended to assist in a crime, and another crime committed is a foreseeable
consequence of the intended crime.
 Intent is found in the target crime.
 Not liable for crimes not directly related to the target crime!
Proving Complicity: A conviction based on uncorroborated accomplice
testimony is reversible error.
 Corroboration Rule – can’t convict simply on testimony of an
accomplice unless other evidence corroborates the testimony; even if
it corroborates, must show more than just that the offense occurred.
 Some jurisdictions have a jury instruction to treat accomplice
testimony w/ caution and/or the corroboration rule.
Causation:
 If abetting, encouraging, or agreeing to help, NO cause required.
 If aiding, helping, must show accomplice helped facilitate the crime.
[‘but for’ cause not required]

MS
Genoa Rule – accomplice liability is derivative – to have an accomplice,
there must be a principle that committed the underlying crime.
o BUT principal doesn’t have to be convicted, just that he exists and
did commit the crime.
Distinguish b/t Accessories b/f and after the fact.
Accessories b/f the fact: Every person who is an accessory to any felony
b/f the felony happens will be considered a principal and treated as one.
They are liable for the substantive offense regardless of whether the first
degree principal is convicted.
 Accessories b/f the fact are principals and can be convicted b/f the
principal.
Accessories after the fact: Guilty of crime “accessory after the fact”:
 Concealed/received/relieved any felon, OR
 Aided/assisted any felon,
 Knowledge the person committed the felony,
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


Specific intent to enable the felon to escape/avoid arrest, etc.
After commission of the felony.
Note – for accessories after the fact to be guilty, principal must be
convicted or tried.
Proving Complicity: Evidence based on uncorroborated accomplice
testimony requires a cautionary instruction be given to the jury.
1. Accessory After the Fact is a crime w/in itself, SEPARATE crime.
2. Causation – only required in some CL jurisdictions exclusively for aiding or helping;
must show accomplice made crime easier to perform.
3. Note – when you have multiple actors, don’t rule out liability of all as principals.
4. Note – actors can be punished as BOTH principal and accessory.
5.
LIMITS OF ACCOMPLICE LIABILITY
a. (not really a limit) Excuse Defense – an excuse defense by the principal will
NOT excuse an accessory (e.g., principal not guilty b/c insane, but accessory
getaway driver is still guilty of complicity).
b. Justification – a justification defense claims promotion of social policy; justifies
the principal’s acts. NEITHER principal nor accessory is guilty of any crime.
(Lopez – bf rescuing gf from jail).
c. McCoy – another exception to Genoa rule – accomplice may be convicted of a
higher crime based on his more culpable mental state (e.g., principal kills V w/o
malice, so manslaughter. But getaway driver acted w/ specific intent to commit
murder and true purpose (or knowledge) to assist in the crime. Principal liable
for manslaughter, accomplice can be liable for murder).
d. Tyrell’s Rule – cannot be convicted as accessory to one’s own statutory rape (if
it’s consensual) b/c victim is in the class of person’s meant to be protected.
e. Brown – abandonment/withdrawal defenses are available, but if attempt
already took place, it’s too late to withdraw.
i. To abandon, must be complete undoing of past effectiveness OR report to
authorities.
XII. DEFENSES
1.
Failure of Proof v. Special Defenses
a. Failure of Proof – defenses such as mistake of fact, where it’s disproving one of
the elements (like mens rea), or keeping state from meeting its burden of proof.
b. Special Defenses – more narrow; these defenses are conceding the elements,
but there’s some other reason D still shouldn’t be guilty.
2.
Note – if the state makes them affirmative defenses, can put burden on D to prove
by preponderance of the evidence.
a. BUT this doesn’t mean the state always puts the burden on D (e.g., in MS the
state has the burden of proving the absence of insanity).
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3.
Defenses: Justification v. Excuse
a. Justification – criminal conduct is somehow socially desirable.
i. Ex: choice of evils/necessity.
ii. Law won’t punish someone who does a social good.
iii. No liability for accomplices.
b. Excuse – conduct is not morally culpable.
i. Conduct isn’t blameworthy, but we don’t want to encourage it.
ii. Ex: insanity
iii. Accomplices are liable.
4.
Types of Substantive Defenses
a. Failure of Proof – an element hasn’t been proved by the state.
b. Offense Modification – limitations required to honor legislative intent (Tyrell’s
rule).
c. Necessity Defense – choice of evils; balance harm caused w/ harm avoided.
d. Duress – defense available when one is coerced by threat of unlawful force
against his person or person of another (I will kill your family if you don’t).
e. Protective Force – self-defense or self of others; force must be reasonable.
f. Law Enforcement – using force for lawful purposes (arrest, executions); can’t
use deadly force for a misdemeanor.
g. Insanity – excuse recognized b/c of the circumstances of actor’s mental state.
h. Intoxication/Diminished Capacity – involuntary intoxication
i. Entrapment – setup by police; applies only to agents of prosecutorial authority,
not private persons trying to talk someone into a crime.
j. Mistake/Ignorance
k. Self-Defense – protect yourself, others, property (no deadly force for property).
l. Statute of Limitations
A. SELF DEFENSE
MPC Elements:
1. Belief ( Subjective – what THAT defendant thought)
2. Immediately Necessary
3. Protect Self
4. Unlawful Force
5. On Present Occasion
Deadly Force only if threat of death, serious bodily harm, kidnapping, or
forcible sexual intercourse.
Aggressor/Provoker: defense does NOT apply to aggressor.
MUST retreat before using deadly force:
 IF can do so w/ complete safety
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

Does NOT apply to dwelling or workplace EXCEPT where D is aggressor
or where victim is co-worker (for workplace) [Castle Rule]
Recklessness or negligence in acquiring belief eliminates defense for
crimes where mens rea is recklessness or negligence. So, with
recklessness or negligence, aggressor may be charged with negligent
homicide, manslaughter, murder. So, can’t be reckless or negligent in
forming BELIEF element.
Another exception – recklessness or negligence eliminated the defense
where mens rea is recklessness or negligence.
CL/
MS
Elements: reasonable belief necessity protect from imminent unlawful
force
 Person not the aggressor
 Reasonable belief (What a RPP would believe, NOT that person,
however, jury make take defendant’s prior experience into
consideration)
 Necessity
 Protect self
 From imminent use
 Of unlawful force
Deadly force only if threat of death or great bodily harm (rape, murder).
 No deadly force to protect property
 No deadly force to stop misdemeanor or escape after misdemeanor.
Majority rule (and Mississippi): NO retreat anywhere.
Minority rule: must retreat. Only if can be done w/ complete safety.
 Exception: CASTLE RULE: no duty to retreat from home (remember:
can’t be aggressor). Yard may or may not be part of the castle.
Imperfect self defense not available, but mitigates to manslaughter.
Imperfect self defense: unreasonable belief and (in some jurisdictions)
nonlethal initial aggressor who responds to escalated lethal force. Some of
the elements of self-defense aren’t met.
1.
Actual but NOT reasonable belief that deadly force was necessary.
2.
Nonlethal aggressor (person who starts shoving match) gets a knife
pulled on him.
1.
Battered Women’s Syndrome
a. Not a defense in MS, CL, or MPC.
b. Only way is to meet requirements for self-defense.
c. Can also be used to reduce murder to manslaughter (imperfect).
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B. VOLUNTARY INTOXICATION
MPC



CL
There IS a voluntary intoxication defense when it negates
“purposely” or “knowingly” element.
There is NO DEFENSE of voluntary intoxication for “recklessly”
element. If the person would have been aware of the risk when sober,
then intoxication is not available as a defense.
Not a defense for negligently
Rule: Voluntary intoxication is available to excuse a specific intent crime,
but NOT for a general intent crime.
Specific intent crimes: e.g. murder, robbery, larceny, FMR (where felony is
sp intent crime.
Minority Rule: Does not allow voluntary intoxication as a defense, even to
specific intent crimes.
MS
NO voluntary intoxication defense (McDaniel).
Note – but it can be a mitigating circumstance in the sentencing phase.
C. DIMINISHED CAPACITY
1.
Diminished Capacity – D doesn’t have the elements of the crime b/c there’s
something about his mental processes that doesn’t provide the necessary mental state.
2.
Through no fault/responsibility of their own, finding themselves engaging in
criminal conduct w/o the mens rea (super mistake).
3.
This is important when someone doesn’t have a good insanity defense (cleptoumbrella theif).
4.
Two Variants
a. Mens rea variant
b. Partial responsibility variant (lesser form of insanity defense)
MPC DOES recognize defense of diminished capacity. It allows any relevant
evidence to show the absence of the culpable mental state.
CL
Jurisdictions are divided over whether a defense of diminished capacity
exists. Old common law rule: accepts it as a defense. There is a move to
reject it.
Some jurisdictions allow it to show that there is no specific intent.
MS
NO DEFENSE of diminished capacity is recognized.
This is to prevent the jury from hearing evidence of past mental problems.
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D. INSANITY
1. Incompetency to Stand Trial – when D is so out-of-it, he can’t understand the trial or
communicate w/ his lawyer. Usually someone can be pretty whacked and still be
competent to stand trial (hard to prove incompetency).
2. Burden of Proof
a. Majority and fed’l require D to prove insanity by preponderance.
i. B/c Hinkley successfully asserted an insanity defense, so most
jurisdictions modified it to place BOP on D.
b. Minority and MS require state to disprove defense beyond a reasonable doubt.
3. M’Nagton Rule
a. When from a disease of the mind (mental defect), D doesn’t know the nature of
his/her act OR doesn’t know the act is wrong.
b. Modern Modifications of McN Rule
i. Irresistible Impulse Test has supplemented McN test.
1. It adds a volitional prong to the already cognitive test.
2. MPC test contains both prongs.
3. Volitional prong never stands alone, only ever added to cognitive
prong.
4. Durham Test
a. An old NGRI test that was replaced by McN test.
b. Durham allowed juries open considerations over insanity as a defense when
they were convinced that criminal activity was a product of mental illness.
c. REJECTED EVERYWHERE – doesn’t give jury a clear definition.
5. No death penalty for those who don’t realize they’re being punished for a crime.
MPC Elements:
 As a result of Mental Disease/illness/defect
 Lacks a substantial capacity to appreciate criminality or
wrongfulness of the conduct. (Cognitive prong)
 OR lacks substantial capacity to conform conduct to requirements of
the law. (Volitional prong)
Note – this approach combines McN and irresistible impulse test.
CL
Burden of Proof: jurisdictions are split over who has burden once D has
raised the defense:
 Majority of jurisdictions place BOP on D to prove insanity by
40

preponderance of the evidence.
Minority (and MS) place burden on prosecution to disprove once
raised.
Elements: M’Naghton test (Cognitive)
 Disease of mind (or defect)
 Not know (cognitive) nature and quality of acts
 OR not know the act was wrong
MS
MS uses M’Naghton test w/ one modification: changes “know” to “capacity
to realize and appreciate”
Elements: (Cognitive)
 Disease or defect of mind
 Not have capacity to realize and appreciate quality of acts
 AND not have capacity to realize and appreciate that act was wrong.
MS uses “AND” in place of CL “OR”.
Fed.
Substantial change: disease must be SEVERE.
BOP: on D to prove elements beyond clear and convincing evidence.
Elements:
 Severe mental disease.
 Must render D unable to appreciate the nature and quality or
wrongfulness of his/her acts.
Under Fed’l law, if mental disease does not fall under NGRI test, there is NO
other defense available.
 No diminished capacity in federal jurisdiction