Criminal Law Outline
Prof. Katz
Can P. Nguyen
I)
Theories of Punishment
a) Utilitarian - (Consequentialists) - maximize number of lives saved
 bean counter
 deterrence - punish to maximize social welfare
b) Deontologist - (priests) - fundamentally wrong to kill
 can accept some maximum number of lives (Trolley problem) but not organ

harvesting
Retributivists - just thing to do
HYPOS: 1) Trolley Problem - in runaway trolley going to kill 5. If switch tracks,
will kill 1
2) Surgeon - if surgeon can kill one healthy person to save 5 people with 5 different
ailments, should he?
3) Kidney Club - would you join club wherein if you needed kidney, someone in club
who matched could not say no when asked
Case: Regina v. Dudley and Stephens (131-136)
Facts: 4 shipwrecked survivors in a lifeboat went days without food and
water. Dudley and Stephens suggested killing youngest member; the third person on
board refused; finally Dudley and Stephens killed the 17 year old boy, who was too weak
to resist or assent. The three fed off of the dead body. Jury found that the three survivors,
who were picked up four days later, would not have survived otherwise. The legal effect
of the fact finding left to court.
Issue: Does the extreme necessity of saving one person’s life justify taking another’s?
Holding: No. Hunger is not an excuse for taking the life of another person
 can only do so when protecting oneself against offending party.
 Later pardoned by the queen
Commment
1) theft OK under circumstances of dire necessity; could murder be OK under some
2)
situations? War for example
Parker (17 year old) has duty to die for greater good? But who decides? Ct - not
good if stronger gets to decide; BUT court will decide whether judgment correct (OK
if subject to review)
c) Perspectives in Punishment
1) Deterrence - Bentham p. 115 - balance of pain and pleasure; pain should outweigh
pleasure in committing crime
 but criminals don’t make such calculations
Why not rely on tort law as deterrence?
1
 no deterrence of those who are judgment proof
 who would search for offender? Probably family of deceased or
aggrieved
 BUT what about abortion, prostitution, drug sales; who
would prosecute then; need victim, how calculate damages
Deter conduct we don’t like
 could result in too harsh of a sentence, or
 Michael Moore - HYPO - guy who rapes and then loses all sexual
desire; if use deterrence, can’t deter from future occurrence so
person would get off?
2) Retribution - want to give offender just desserts
 punishment should fit crime
 can increase degree of punishment for repeat offenders and still be
retribution
(1) vs (2)
a) net savings of lives
b) contractual
c) Revulsion
HYPO: Life sentence for DUI
a) deterrence - ruin 1 life to save many
R - can’t do this, need equivalent punishment
b) Contract - people willing to make sacrifice to pass law
Deterrence - people expect to come out ahead
R - K not binding; doesn’t matter that everyone agrees
c) Revulsion - choices for society?
3) Reform - rehabilitation
 HYPO - what if had 100% cure for a crime?
4) Incapacitation - stop from committing further crime
ex: transportation to Australia
 would crime decrease?
 not necessarily; others would fill open market for crime
II) The actus reus – the bad act
 in general, to be convicted of a crime, the D must have committed a criminal act; the law does
not punish mere criminal thoughts; need affirmative physical act by D
A) Omissions - liability may be based on D’s failure to act. Need to show:
1) D was under a legal duty to act
 rationale for duty - need to set reasonable and discernible limits
2
Situations giving rise to legal duties
a) Duties based on relationship of parties
 Ex: parents to children, spouse to each other, etc
b) Statutory Duties
 variety of specific duties prescribed by statute- e.g. statutory
obligation to file tax returns
 Limited by constitutional due process and specificity and
precision requirements
 ???????? What if not duty not intended by statute for harm
caused? From notes (1/26) “doesn’t have to relate to harm
intended by statute.”
c) Duties arising from contracts - failure to perform a duty created by
contract will, at least in some situations, be sufficient to create
criminal liability
 especially in a case where D under contractual duty to
protect or care for others
d) Duties arising from voluntarily undertaking task
 one who voluntarily undertakes to render such aid has
a duty to use reasonable care in so doing
 refusal to continue a voluntary assumption of care
may constitute a criminal “act,” at least where
abandoning one’s efforts would leave the imperiled
person in a worse condition
e) Duty based on creation of peril - one who wrongfully places
another in a position of danger comes under a duty to aid that
person
 failure to render assistance will give rise to criminal
liability
 BUT, result less clear where D has accidentally
created the danger; some say duty
EX: lock up shed thinking no one there but hears
someone knock, duty? Yes, (p.197)
BUT if accidentally bumps someone in and don’t
know, no duty
f) Duty to control conduct of others - particular relationship between
2 persons may create a legal duty on the part of the person to
prevent criminal conduct by the other
Ex: employer may have duty to prevent employee
Cases:
1) Jones v. U.S. (191)
Facts: Green and her baby lived for some period of time with Jones
(D). The baby died from neglect and malnutrition. D was charged with
the death. At trial, conflicting evidence was presented as to whether
Green had hired D to care for the baby or whether Green was staying
with D and should have been taking care of the baby herself. D wanted
an instruction that the jury must find beyond a reasonable doubt that D
had a legal duty to care for the baby. The court failed to give
instructions and D was convicted of involuntary manslaughter. D
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appeals.
Issue: when a person is criminally charged with an omission to act,
must the government prove there was a legal duty to act?
Holding: yes, must show breach of one of the legal duty categories
mentioned above.
 legal duty and moral duty not synonymous
2) Barber v. Superior Court (197)
Facts: Herbert underwent surgery at the hands of Nejdl and Barber (Ps), who were
surgeons. After the successful operation, Herbert suffered cardio-respiratory arrest and
was placed on life-support. Herbert lapsed into a coma from which he was not expected
to recover. The family asked that the equipment be removed and Ps complied. Herbert
continued breathing, but had to be fed intravenously. After again consulting with the
family, Ps removed the intravenous tubes and Herbert died shortly thereafter. Ps were
charged with murder, but the magistrate dismissed the complaint. Superior Court
reinstated the complaint and Ps appeal.
Issue: May a doctor be charged with murder for failure to continue to provide lifesustaining treatment?
Held: No, judgment reversed.
Comment: disconnecting mechanical life-support devices, including the IV tubes, is
comparable to withholding manually administered injection or medication. Ps could have
been criminally liability only if they had a legal duty to continue to provide life-sustaining
treatment. Under these circumstances, after coordinating with Herbert’s wife and
children, Ps had no legal duty to continue treatment.
Katz HYPOS:
a) Letting die or killing? Act or omission?
b) what if 100% chance person would wake up?
 both are acts, but there is a duty in the second case (100% wake up)
c) For healthy patient, omission combined with duty
 doctor actively disconnects, expects to result in death and act does so
 Ct analogizes to life support that needs to be continuously serviced and
cranked
d) Is appeal to send check to save a starving child, send check then change mind?
 still an act but no duty
e) Enemy of Barber comes in and disconnects machine
 definitely murder; why does it matter who does disconnecting?
 HYPO, stranger steals check from mailbox
f) Focus on archetypal act or omission
 act/omission test, subtract actor and see what result
 if act, outcome may change
 is omission, outcome would still be same
 but when focus? If doctor doesn’t disconnect, patient dies
 but if doctor not there at beginning, patient would die anyway
Pundits Take: a) Rachels: all A/O cases have 2 choices, life or death
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 all other differences irrelevant
 But in Foote’s hypo, shows that A/O standard matter in some but

not all cases
Katz HYPO: Life or death button don’t know which one is which;
distinction irrelevant
Phillipa Foote- all sorts of absurdities result from Foote; choice involved; right
not to be interfered with carries much further than right to be saved from trouble
harm
 sacrifice of one saves others
 for example, utilitarian surgeon and island hypo (can only save
wife or group of five strangers in water) - one case involves an act,
other involves an omission (island)
***Katz says if abolition A/O will get all sorts of morally bad results.
2) D had the necessary knowledge; and (thought prong)
 need act requirement to restrain this requirement
 Ex: statute: felony to plan death of the President
 cogitationis poenam nemo patitur (no one is punishable solely for his
thoughts)
 Blackstone - “to make a complete crime, cognizable by human laws,
there must be both a will and an act.”
Cases:
Robinson v. California (1011) (Casebook lists under Principles of
Excuse)
Facts: D was prosecuted for being “addicted to the use of
narcotics.” The evidence showed that D had scar tissue, needle marks, and
discoloration typical of frequent narcotics users. The jury was instructed that D
could be convicted if they found that D was either of the “status” or had
committed the “act” proscribed by the statute. D was found guilty and appeals.
Issue: May a state criminalize mere status as a narcotics addict?
Held: No Judgment reversed.
Comment:
1) A state has broad power to regulate narcotics traffic. It can even
involuntarily confine addicts for compulsory medical treatment. However, a
disease is not a criminal offense. D used or possessed narcotics within the
state and without ever having done any antisocial act there. Criminal
punishment for affliction with a disease is cruel and unusual. A drug addict
is a sick person, not a criminal.
2) Concurrence: Drug addiction may be something other than an illness and
therefore subject to criminal sanctions, but this statute allows conviction for
the bare desire to do a criminal act; e.g., D’s compelling propensity to use
narcotics.
3) Can’t criminalize a status such as drug user
4) Dissent: The court has made it impossible for the state to deal with D who
continually use narcotics where the state cannot prove the precise location
of use.
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Powell v. Texas (1013)
Facts: D was arrested and charged with being found intoxicated in
a public place. He was found guilty and fined $20. On appeal, the court ruled
that chronic alcoholism, from which D suffered, was not a defense to the charge
and fined D $50. D appeals.
Issue: May a person be criminally liable for merely being in a public place while
suffering from a disease?
Held: yes, judgment affirmed
Comment:
1) In Robinson, the Court held that a statute making it a crime to “be addicted
to the use of narcotics” inflicted cruel and unusual punishment because it
punished the person’s condition. The statute here differs because it punishes
not chronic alcoholism but public drunkenness. Robinson requires some
actus reus before criminal penalties may be inflicted. D did commit an
illegal act (namely, taking a drink despite his condition as an alcoholic).
2) Concurrence: Robinson was limited to situations where no act was
involved, where the mental element is not simply one part of the crime but
all of it.
3) Concurrence: If it is not a crime to have an irresistible compulsion to use
drugs, it should not be a crime to yield to the compulsion. Here, however, D
did not have an irresistible compulsion to be in a public area. He could have
taken precautions against being drunk in public.
4) Dissent: The Constitution forbids infliction of criminal penalties upon a
person for being in a condition he is powerless to change. D was convicted
only because he was in a condition that he had no capacity to change or
avoid.
3) it would have been possible for D to act
MPC Section 2.01. Requirement of Voluntary Act; Omission as Basis of Liability;
Possession as an Act
(1) A person is not guilty of an offense unless his liability is based on conduct
which includes a voluntary act or the omission to perform an act of which he
is physically capable.
(2) The following are not voluntary acts within the meaning of this Section:
(a) a reflex or convulsion;
(b) a bodily movement during unconsciousness or sleep;
(c) conduct during hypnosis or resulting from hypnotic suggestion;
(d) a bodily movement that otherwise is not a product of the effort or
determination of the actor, either conscious or habitual.
(3) Liability for the commission of an offense may not be based on an omission
unaccompanied by action unless:
(a) the omission is expressly made sufficient by the law defining the
offense; or
(b) a duty to perform the omitted act is otherwise imposed by law.
(4) Possession is an act, within the meaning of this Section, if the possessor
knowingly procured or received the thing in possession or was aware of his
control thereof for a sufficient period to have been able to terminate his
possession.
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a) Voluntary Act I (Martin p. 171) (MPC 2.01 (1))
 where criminal liability if based upon the defendant’s

affirmative act, there must be a showing that the D made some
conscious and volitional movement
can’t be punished unless perform voluntary act
1) Voluntary Cases:
Martin v. State (171)
Facts: D was arrested at home and taken into public
highway, where he used loud and profane language and
manifested a drunken condition with other persons present.
He was convicted of drunkenness in a public place under a
state statute.
Issue: May a person be guilty of a crime where his
conduct was not voluntary?
Held: No Conviction reversed.
Comment:
1) The statute presupposes that the D voluntarily appears in
public in a drunken condition. D was brought to the public
place involuntarily by the arresting officer.
2) Need a voluntary act; could claim voluntary act of drinking but
this goes too far back for causation purposes
People v. Decina (178)
Facts: D, aware of his epileptic condition and the likelihood of being
rendered unconscious as the result of a seizure, drove his vehicle on a
public way. He suffered an attack and the car went up onto the
sidewalk, killing four people. He was charged with criminal negligence
in the operation of a vehicle. The court found D’s actions constituted
criminal negligence because D deliberately chose to take a chance by
driving alone while he was aware of his vulnerability to seizures and
did so in disregard of the results that might follow.
Note the necessity of prior knowledge; a disabling attack, without any
prior knowledge, would be viewed differently
Act being punished for is getting into car; earliest act that fits statutory
description
 person may incur criminal liability be engaging in a course of

conduct knowing he will or might become unconscious and do
harm
Rationale - liability is not imposed for the act committed while
unconscious but rather for the earlier act committed while fully
conscious (driving with knowledge that seizure may occur)
Voluntary act principle: every piece of requirement must be voluntary
act
BUT responsible for all subsequent involuntary acts if followed by a
voluntary act
BUT if chain of events precipitated by involuntary act, all
subsequent acts also considered involuntary
Ex: someone forced to drink and then made to drive home
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b) Voluntary Act II (Newton p. 173) (MPC 2.01 (2))
 act must be “volitional”
 the physical movement constituting the act must be a conscious and
volitional one
 thus, reflexes, convulsions, movements during sleep, and conduct
during hypnosis or resulting from hypnosis are not sufficient “acts”
(see exceptions listed in 2.01 (2) above) because they are not
volitional. Similarly, criminal liability cannot ordinarily be based
on movements made while the D was unconscious (MPC 2.01
(2)(b))
Case:
People v. Newton (173)
Facts: D involved in an altercation with a police officer subsequent
to his arrest, was shot in the midsection, but then managed to grab the gun and
fired several shots at the officer, killing him. D testified that he remembered
nothing after being shot (except for a few events at an emergency hospital) until
recovering consciousness at a second hospital. Expert testimony established that
a shock reaction (producing unconsciousness) could have resulted from the shot
and could have lasted up to a half hour. The defense asked for an instruction to
the jury on unconsciousness but the trial court refused. D was convicted of
manslaughter. D appeals.
Issue: Is it error to fail to instruct the jury on the issue of unconsciousness as a
defense?
Held: yes. Judgment reversed.
Comment:
1) Unconsciousness, where not voluntarily induced, is a complete defense to
murder.
2) Unconsciousness includes situations where the D can act physically but is
not conscious of what he is doing
3) D is entitled to a jury instruction on the consciousness issue even if the
inference that he was unconscious arises from his own testimony. The jury
must be allowed to consider whether A was in fact unconscious.
c)
SEE Multiple acts problem section in Greek outline p. 8
- Larsonneur case
III) The Mens Rea – the guilty mind
A) Basic Conceptions - mens rea is a guilty or wrongful purpose; a criminal intent. The intent
required is not the same for all crimes.
 see MPC Section 2.02 General Requirements of Culpability
 if unsure what statute assumes, pick reckless standard or worse (intention,
knowledge, reckless, negligence)
 3 unequal parts
1) Cunningham and Faulkner - logic of MPC approach
2) Model Exercises - apply to criminal law statutes
3) Various meaning of criminal state statutes
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MPC 2.02 - General Requirements of Culpability
(1) Minimum Requirements of Culpability - Except as provided in Section 2.05, a person
is not guilty of an offense unless he acted purposely, knowingly, recklessly, or
negligently as the law may require, with respect to each material element of the
offense.
(2) Kinds of Culpability Defined
(a) Purposely - with desire. Conscious desire to engage in certain conduct or
cause a certain result; hopes, believes, or is aware that attendant
circumstances exist
(b) Knowingly - awareness of a certainty. A person acts knowingly with respect
to the nature of her conduct if she is aware that the conduct is of that nature
or that certain circumstance exist; “practically certain”
(c) Recklessly - awareness of high risk. A person acts recklessly if she is
aware of a substantial and unjustifiable risk that a certain result will
occur because of her conduct or that a certain circumstance exists.
Contingent upon actor’s POV.
(d) Negligently - existence of high risks. Should have been aware of a
substantial and unjustifiable risk that a certain result would occur or that a
certain circumstance would exist.; gross deviation from the standard of
reasonable care
The negligent actor lacks a guilty mind. We still punish him because of general
deterrence reasons - “public policy sacrifices the individual to the general good.” The
negligent actor who is punished may act more carefully in the future.
Deontologists hate punishment for negligence. D did not know he was doing anything
wrong; his risk-taking is inadvertent. However, gross indifference which D displays may
be seen as intolerable to reasoning minds that the actor did not perceive the risk of harm
he caused. D may still be morally blameworthy because of his flawed thinking.
HYPO - Asphyxiation case: Assume death doesn’t come about but man expects
neighbor to die to get money.
Intent: means to en end
D  death of neighbor  get money
(Means to end)
Knowledge: by product
D  turn on gas  collect money
death is by-product of turning on gas
Problems with this test:
 each can be re-characterized in the other hypo
 D knows that his act will virtually certainly result in death of guests. So he seems to
have intended that as well
 what if want son to die and send him on flight on Aeroflot because think it will likely
crash?
 1/6 dice; 1/6 gunshot - if you roll the dice and you really want 6, your intent had
nothing to do with it. But if someone has 1/6 chance of shooting you and they shoot
you, they intended it. Isn’t that odd?
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Intent - is comprised of (1) desire (conscious object) to perform an action of that nature
(or cause such result); or (2) acts with knowledge that the social harm is virtually certain
to occur as a result of conduct.
 (2) is not satisfied if outcome was merely highly probable. D must know that, short
of a miracle, the result will surely happen
 2.02 (6) - If your intent negatives an essential element of the crime with which you
are charged, you cannot be guilty of that crime. For example, burglary requires intent
to commit a felony inside. If you break in to take back what is yours, you intend no
felony and are not guilty of burglary.
Knowledge - of an attendant circumstances (material fact) is the required element of many
offenses
 Knowledge of a material fact is present if he is aware of the fact or he correctly
believes that it exists. Substantial, practical certainty.
 2.02(8) - willful blindness
(3) Culpability Required Unless Otherwise Provided. When the culpability sufficient to
establish a material element of an offense is not prescribed by law, such element is
established if a person acts purposely, knowingly, or recklessly with respect thereto.
 if unsure what statute says or statute doesn’t say, pick reckless or worse
 if statute puts some material elements of the offense before the culpability
term, then there is a contrary purpose. The material element is established if
a person acts purposely, knowingly or recklessly
 Burglary - it is an offense to “enter an occupied structure with the
purpose to commit crime therein”
 If purposeful entry was required, the drafters would have
put “purposefully” at the front, not the middle of the law
 If D purposely, knowingly, recklessly entered the
occupied structure, and purposely committed a crime
therein, he is guilty of the offense.
 If D had entered the structure, negligently thinking it to be
unoccupied, then he would not be guilty of the offense. If
D was reckless in believing the building to be unoccupied,
he could be prosecuted for the burglary.
(4) Prescribed Culpability Requirement Applies to All Material Elements. When the law
prescribes the kind of culpability that is sufficient for the commission of an offense,
without distinguishing among the material elements thereof, such provision shall
apply to all the material elements of the offense, unless a contrary purpose plainly
appears.
 use adjective standard used once and assume apply to all
 a single mens rea term modifies each actus reus element of the offense,
absent a plainly contrary purpose of the legislature
 false Imprisonment - it is an offense to “knowingly restrain another
unlawfully”
 2 material elements - D must knowingly restrain and know that it is
unlawful
2.02 (3), (4) help us when mental states in the statute are unclear. One allows us to
assume (3), the other allows us to generalize from existing mental states (4).
Cases:
U.S. v. Jewell - (220) - Deliberate Ignorance
Facts: D was convicted of knowingly transporting marijuana from Mexico
to the U.S., concealed in a secret compartment in his car. D testified he did not know that
the marijuana was present. The evidence showed that D might have known of the
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marijuana or that he might have deliberately avoided such positive knowledge. The court
instructed jury that “knowingly” could mean actual knowledge or deliberate avoidance of
actual knowledge. D appeals his conviction.
Issue: Are deliberate ignorance and positive knowledge equally culpable?
Held: Yes, conviction upheld.
Comment:
1) One can “know” facts without being absolutely certain of them. “Knowingly,”
therefore, can mean an awareness of the high probability of the existence of a
fact.
2) Subjective standard of the actor involved.
3) DISSENT: The majority justifies the “conscious purpose” jury instruction as an
application of the “willful blindness” doctrine. But the instruction makes no mention
of “high probability” that D knew of the marijuana, nor does it state that “actual
belief” could thwart a conviction. The jury instruction also wrongly indicates that
ignorance or not actually being aware could still lead to a conviction.
Regina v. Cunningham (205)
Facts: D tore the gas meter from the wall in a house in order to steal
money contained therein. He did not turn off the gas and it leaked into the next house and
asphyxiated an elderly lady. D was convicted under a statute for “maliciously causing
another to take noxious things.” D appeals.
Issue: May a person be convicted under a statute which requires malicious intent when he
did not actually intend to do the harm done and did not foresee the result?
Held: No, conviction reversed.
Comment:
1) “Maliciously” requires that the D act recklessly with foresight of the actual
consequence, or it requires actual intent to do the particular harm done.
Recklessness is where the D foresees that such harm might occur but does the act
anyway.
2) Malice does not require that ill will toward the person injured be shown, nor does it
require that the act done in itself be unlawful (as the stealing of the gas meter was
here).
3) The jury instructions by the trial judge were thus erroneous; the jury instructions
should have been left to decide whether D foresaw possible injury occurring from his
act.
Regina v. Faulker (207)
Facts: D was sailor aboard ship. Went to hold to steal rum and lit match
to see better. Some rum caught fire and ship destroyed. Convicted by jury
under Malicious Damage Act by maliciously setting fire to the ship (arson) on jury
instruction that even with “no actual intention of burning vessel, if they found he was
engaged in stealing rum,… they ought to find him guilty.” D appeals.
Issue: Does malice entail intent to cause specific harm?
Held: Yes, judgment quashed.
Comment:
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1) act done must be in fact intentional and willful
2) accused must know that the injury would be the probable result of his unlawful act
and yet did the act reckless of such consequences
Katz’s HYPOS:
1) what if Cunningham tried to turn off gas and thought gas was off?
 but still imposing ever so slight risk to neighbor  unjustifiable risk
2) Conditional intent - only intend on committing crime if some condition fulfilled
 e.g., burglar looking for specific item that’s not present: burglary?
 must imagine that case would be realized, if crime then guilty
 if condition fulfilled, guilty
B) Mistake of fact
Ignorance or mistake of fact is ordinarily not a defense in the sense that it invokes a
defensive doctrine (like insanity) unrelated to the elements of the charged offense. It will,
however, sometimes prevent liability if it shows that the D lacked a mental state (lacked
mens rea) essential to the crime charged.
Why do we need 2.04 - mistake of fact/law?
2.02 always requires a mental state that seems to cover ignorance of law and fact. But see
PA mistake statuteonly if mistake is one ‘for which there is a reasonable explanation or excuse’


Effect of PA statute - Basically punishment only for negligence. If I
unreasonably think killing a ghost when killing a man, I have no defense and
will be prosecuted - even though I lack intent and knowledge  unfair
Creates negligence standard for every crime. Inconsistent with MPC 2.02
MPC 2.04 (1) - A mistake of fact is a defense if it negates the mental state required to
establish any element of the offense. 2.02 requires mental state for each material
element of the offense.
EXCEPTION: D will not get off if he would be guilty of another offense had the
circumstances been as he supposed. But then D is punished for the lesser of the two
offenses.
MPC 2.04(2)
 mistake of fact means you are liable for your intended offense - not the
worse of the two
 punishment only for what you thought you were doing wrong
 Reasoning - Inadvertence should not be punished - you should be no guiltier
than you ever expected when you performed the act
 Problem - Things can affect society in a worse way then intended by
criminal - but the criminal is treated more leniently. Does not satisfy an
implied societal retributivist urge
Complications:
1) D kills what he believes is a ghost  is he off the hook? Under MPC, yes because
he does not have the requisite mens rea of killing a human;
 gets off under 2.04(2) because killing a ghost is not a crime
2) Regina v. Prince - tougher view on mistake of fact than 2.04(2). Moral wrong
doctrine (226).
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Facts: D was convicted of having sex with an unmarried female under 16 in violation of a
statute. Statute states:
Whoever shall unlawfully take or cause to be taken any unmarried girl, being under the age of sixteen years, out
of the possession and against the will of her father or mother, or any person having the lawful care or charge of
her, shall be guilty of a misdemeanor.
The girl was 14 but told D she was 18. D appeals.
Issue: Is a reasonable but mistaken belief in a particular fact a defense?
Held: Conviction affirmed. If you have the mens rea of some immoral conduct that you
think you are committing, then you are on the hook for whatever criminal conduct you do.
D’s conduct must have been immoral had the situation been as he supposed.
Reasoning: Bramwell (majority)
 Statute has strict liability for the age but a mistake of father’s consent could excuse a mens rea if required for this.
 D took girl away from her father without his permission. This was the
immoral conduct that was necessary for the court to find D guilty of what he
actually did. D did not mistake the father’s consent.
 D’s mistake was over girl’s age and this is SL. D’s mistake was not about whether he
had the father’s consent. He knew he did not have father’s consent - that was his
moral wrong.
 As long as D think doing something wrong, has mens rea; guilty as long as think
something wrong
DISSENT (Brett)
 Mistake of fact, on reasonable grounds, is an excuse
 Mens rea should apply to the entire statute, including the age part. You need mens
rea at least to find someone guilty of a crime. If commit actus reus of felony but
mens rea if misdemeanor, guilty of more serious crime which D thinks (in sense of
crime committing) he’s doing. Moral wrong irrelevant unless accompanied by
mens rea. If D commits a legal wrong, then he can be guilty of the more serious
of the two crimes.
 Prostitution statutes: <16, felony; >16, misdemeanor. D picks up
prostitute thinking she is 18, but she’s 15. Under dissent rule, since D
broke a law from his perspective, he is liable for the more severe act the felony.
 Ignores the fact that mens rea is for the lesser crime. Like SL.
 Moral wrong doctrine permits conviction of a person who did not know that his
conduct would violate the law. It reads crimes where the legislature did not expressly
put them.
Katz HYPOS:
 I shoot at a person but thought it was an animal and knowing poaching is
illegal.
 Under Prince, D is guilty of the more serious crime (murder)
because he was committing a knowing crime when he made a
mistake. He was acting immorally.
 Under MPC 2.04(2), D would be convicted of poaching.
 Assume two statutes: defilement of girl <10 is a crime; and defilement of
girl 10-12 is a different crime. D defiles girl <10 but thinks she is 11. Can
he be punished?
 Under Prince, D is guilty of defilement of <10 girl. In Prince itself,
D did not think he was committing a crime because he thought the
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girl was of legal age. But he was doing something immoral - he
knew he took her without father’s permission.
 Under 2.04(2), D would be guilty of lesser offense (10-12 yr. Old
defilement).
I see movement in bushes. I shoot and miss (assuming it was an animal) but
a person was really there. Poaching is illegal.
 2.02 - People shoot to kill, not to attempt. D thought he was
poaching, so he is liable for attempted poaching.
 Prince: D acted knowingly immorally - therefore guilty of
attempted murder.
3) People v. Olsen (230) - Good faith belief as to age
Facts: D had sex with Shawn who was 13 but told D that she was older then 16. Statute
stated:
No willful and lewd acts (sex) with child under 14 years old.
D does not get to use mistake as a defense.
Key Precedents:
 Hernandez: Statutory rape age: 18. No mental state requirement. Held: An
accused’s good faith, reasonable belief that a victim was 18 years or more of age is a
defense to a charge of statutory rape. Interpretation: D must be negligent as to age
in order to be found guilty. D could easily make a good faith mistake about D’s
maturity. Age was a bad proxy for maturity. The age must be lower for the proxy to
be good.
 Lopez: Selling drugs to minors (<14) is criminal. Held: Furnishing marijuana is
criminal regardless of age of recipient; 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. Prince-like.
 Section 213.6 Provisions generally applicable to Article 213.
(1) Mistake as to Age. Whenever in this Article the criminality of conduct depends on a
child’s being below the age of 10, it is no defense that the actor did not know the child’s age,
or reasonably believed the child to be older than 10. When criminality depends on the child’s
being below a critical age other than 10, it is a defense for the actor to prove by preponderance
of the evidence that he reasonably believed the child to be above the critical age.
Katz:
 if set age at 14, would run the risk of punishing people who would not
necessarily deserve it (victim relatively mature)
 culpability - statute made deliberately underinclusive to make sure D can’t
have defense (form of SL if set critical age sufficiently low like 10)
 The age is a conduit (proxy) to maturity. We feel certain that if someone
made a reasonable mistake about age, they could not make a mistake about
maturity.
 We are interested in certain aspects of behavior and use a proxy to
get at it. In this case, we use age as a proxy for maturity and we do
it conservatively so that it is highly unlikely that the actor has made
a mistake about the thing we’re actually interested in.
 In Olsen, it seems that D could have been mistaken about maturity. He
maybe should have been able to use reasonable mistake as a defense.
Held: No, judgment affirmed
Reasoning: Prince + Maturity Proxy
1) In the statute defining lewd or lascivious conduct, the legislature provided for
probation for accused persons who ‘honestly and reasonably believed the victim was
>14 years. This demonstrates that the legislature did not intend to approve the honest
and reasonable belief defense; otherwise, there would be no need to provide for
probation, because the person would not be convicted.
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2) The legislature has determined that persons under age 14 need special protection.
Those who commit sexual offenses with such young persons are punished more
severely than those who do so with older persons under age 18. Recognition of the
defense in cases involving victims under 14 would undermine the legislative purpose
and cannot be permitted. Strong public policy reasons.
4) Feola Problem United States v. Feola D charged with conspiring to assault and of assaulting federal officers. Convicted at
trial, reversed in Ct of appeals on conspiracy charges. U.S. appeals.
Issue: Must conspirator have knowledge of status of intended victim to be guilty of
assault on federal officer?
Held: No, convictions affirmed
Reasoning:
1) MPC 2.02(3) - Culpability Required Unless Otherwise Provided - When the culpability
sufficient to establish a material element of an offense is not prescribed by law, such element is
established if a person acts purposely, knowingly, or recklessly with respect thereto.
2) Actor must merely entertain the criminal intent to do the acts specified in statute
(statute only requires an intended assault, doesn’t matter federal officer).
3) Imposition of a requirement of knowledge of the official identity of the victim (which
serves only to establish federal jurisdiction) would render it more difficult to serve
policy behind the law of conspiracy without serving any other apparent social policy.
4) DISSENT: An assailant must know or have reason to know that the person assaulted
is an officer to be so convicted.
(NEED NOTES FOR 2/22)
Ignorance of Law:
In general, ignorance of law is no excuse. See MPC 2.02(9)
 Practical basis: everyone would be willfully ignorant
 Moral basis: at least some immoral conduct is condemnable whether or not
perpetrator realizes that he is doing something immoral. We often praise and blame
others regardless of whether they think of themselves as blame/praiseworthy.
 Society judges certain people heroes or scoundrels based upon acts and feats
that the actor thinks not worth mentioning.
 Why do we treat mistakes of fact differently from mistakes of law?
 Mistakes of fact, if accompanied by requisite care, prudence and
circumspection, are morally beyond reproach - no matter what the results of
the calamity are.
 Mistakes of law and morals are different. No matter how much care,
prudence or circumspection preceded his decision, he still acted immorally
Deontology view - ‘mistake of law is no excuse’ justified
 look at objective moral worth of actions
Untilitarian view - also justified
 don’t want people willfully eschewing knowledge of law
Exceptions to “mistake of law is no excuse” doctrine:
MPC 2.04(3)(a) - if statute defining the offense is not known to actor and has not been
published or reasonably made available prior to conduct
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MPC 2.04(3)(b) - if he acts in reasonable reliance upon an official statement of the
law, afterward determined to be invalid or erroneous
1) Reasonable Reliance doctrine
 People v. Marrero - D, a federal corrections officer, was arrested for
possession of a loaded gun.
 Statute: prohibited carrying gun without permit
 D sought dismissal on ground that peace officers were expressly
exempted.
 Statute: peace officer - correction officer of any state facility or any
penal correctional institution
Held: D’s reasonable reading was not within the meaning of the
statute. He could not base his defense on a personal reading of the
statute.
Katz:
MPC 2.04(1) - It does not negative the statute that D did not know he
was covered by the law. But see example below on collateral issue
doctrine for opposite result.
 Official interpretation - person is excused if he reasonably relied on official
statement of the law, later determined erroneous, obtained from person/body
with responsibility for interpretation, admin., or enforcement of the offense.
 ‘Official’ defined: statute later must be declared invalid; judicial
decision from highest court in state must later be determined
erroneous; official but erroneous interpretation of the law from
responsible party
 Cox v. Louisiana - D convicted of violating statute prohibiting
pickets near courthouse. D was given permission by sheriff to
demonstrate
 Held: Due process violation - official entrapment by state
 P: public official cannot forgive a breach of criminal laws.
Does not hold much water because demonstration is not
such a severe moral violation - it’s not like forgiving a
murder or rape.
 Katz: Sheriff was not an official under MPC 2.03(3)(b).
Therefore, this case broadens the reasonable reliance
exception to cases of entrapment.
 Addendum - Advice of Private Counsel - erroneous advice
provided by private attorney is not a defense to a crime. Possibility
of bad lawyers outweighs good policy of having people consult
with attorneys before acting.
Official Pronouncements of Law
 U.S. v. Albertini - D engaged in a peace demonstration on naval base. Convicted but
reversed on appeal. US appealed to Supreme Court, but SC accepted and later
reversed appeals court. While being appealed, D demonstrated several more times.
 Held: judgment reversed
 Reasoning: Exception under mistake of law because relying on an official
statement of the law that is later overruled. D’s conduct in reliance on the
first opinion of this court, prior to the SC’s granting of cert, is therefore
justified.
2) Collateral Law Doctrine - Ignorance that negates mens rea
 Rule: Ignorance of a collateral law that is civil gets you off. (Common law, MPC
2.02(9)). If understanding of a collateral civil law is necessary to have the intent
or knowledge under the criminal law, ignorance of the collateral civil law is a
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defense. Things like legal classification (of property, rights, etc.) are morally
neutral.
Parallel reading - If the ignorance is regarding a morally culpable act, then it is not an
excuse. If it is regarding a non-morally culpable act - if it is just a classification or
tort law, then ignorance can get you off of the criminal charge.
 Regina v. Smith - D moving out of evicted apartment. Removed what he
thought was his property which he was asked to vacate. In law, those things
become fixtures (law of fixtures) and so he was in law, criminally destroying
property of another.
 D thought the fixtures were his. Is his mistake of law an excuse?
 Yes
 2.04(1) - Ignorance or mistake as to a matter of fact or law is a
defense if:
(a) the ignorance or mistake negatives the purpose,
knowledge, belief, recklessness or negligence required to
establish a material element of the offense
(b) law provides that state of mind from mistake is a defense
 2.02(9) - Culpability as to Illegality of Conduct - Neither
knowledge or recklessness or negligence as to whether conduct
constitutes an offense or as to the existence, meaning or
application of the law determining the elements of an offense, is an
element of such offense, unless the definition of the offense or the
Code so provides
 D was ignorant not about the property law (criminal) - he
was ignorant about the fixtures law (civil). Ignorance of
the law under which you’re prosecuted is no defense ignorance of collateral law can be a defense.
 As opposed to burglar who expects to engage in criminal
conduct or blackmail - but does not know that blackmail is
wrong. Either way, the burglar intended to do something
criminal (immoral). His ignorance of blackmail will not
help him.
 People v. Marrero - a second look
 D’s mistake was of the definition of peace officer. This definition
is in the criminal procedure law, so it is a criminal law. Under our
test so far, this makes D guilty. However, moral culpability
determines what is civil and criminal. Blackmail is clearly morally
bad - is a botched definition morally bad? No - it’s more like the
fixtures statute. D therefore made a mistake with no moral
culpability. He should be found not guilty, despite what court says.
 State v. Woods - Statute: A man with another man’s wife, or a woman with
another woman’s husband, found together in bed, under circumstances
affording presumption of an illicit intention, shall be fined…
 D was a single woman who traveled with a man from VT to Reno,
where man got divorce from old wife and married D.
 D was prosecuted in VT for violating statute
 Katz: D was ignorant of divorce law (civil law) - she lacked the
illicit intention (she thought man was validly divorced) required
for criminal charge
3) Express Negation (Self Same Law Doctrine) Exception:
 Law expressly states that knowledge is required
 a D’s ignorance or mistake concerning a matter of law tends to negate
the mens rea of the crime charged. Where this is the case, the D may
rely on that ignorance or mistake, and if the trier of fact has a
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
reasonable doubt as to whether the prosecution has proven the
required mens rea, the D must be acquitted.
knowledge that prohibited conduct constitutes an offense is an express
element of the crime.
E.g., It is a felony to knowingly carry a concealed weapon unless a peace
officer..”
Cheeks v. U.S. - D did not pay taxes because he claimed he did not know
the law required him to
 some laws require knowledge of the law in order for it to be
violated
 Statute: any person is guilty of a felony who willfully attempts in
any manner to evade or defeat any tax imposed by this title
 Held: Knowledge by D that he was violating the tax law is
required by the statute itself. “Willfully” in tax law means that tax
law must be known
 BUT rather willful or unreasonable of D to think don’t
owe income taxes
 BUT people hold all types of non-sensical beliefs
 BUT prosecution can say this statute suppose to protect
only inadvertent mistakes; people tripped up by
complexity of tax laws
 BUT statute doesn’t say “reasonable” only unintentional,
willfulness
 BUT willful ignorance still knowledge  Jewell
Liparotta v. U.S. - D used food stamps to get food for his restaurant. D
claimed he did not know food stamp transfer statute, but he knew he was
doing something wrong.
 Statute: whoever knowingly uses, transfers,…coupons…in any
manner not authorized by the statute or the regulations of DOA is
subject to …
 Marrero - D is guilty - he did not have to realize he was breaking
the law
 Cheeks - Knowingly here plays same role that willfully plays in tax
law.
 Held - in line with Cheeks - Knowingly in welfare statute means
that statute must be known.
 D could have also argued complexity of food stamp
regulation
 Katz - If prosecution could punish knowledge of a violation (in
general, not specifically) then this holding would be severely
narrowed. People like Liparotta would not be safe from
prosecution if they thought they were doing something wrong. But
this would punish thoughts, not acts (sort of).
U.S v. Ratzlaf - D structured transaction to pay a casino debt without
triggering feds. If got money order for $100,000, would have triggered.
Structured with $10K from 10 banks. D knew there was a statute, but did
not know that structuring violated it.
 Statute: It is a crime to structure transactions to avoid this statute.
 Held: Cheeks rationale - prosecution must prove both knowledge
of bank’s reporting requirement, and that structuring was a
criminal offense.
 Structuring not obvious that the ignorance would be willful
Regina v. Taaffe - D thought bringing in money into country but really had
drugs on him. D thought he was fraudulently evading the law - but he
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thought it was because bringing in money was illegal. Bringing in money
not illegal.
 Statute: If any person is, in relation to any goods, in any way knowingly
concerned in any fraudulent evasion …(b) of any prohibition … in force with
respect to the goods … he shall be guilty of an offense..

Reasoning/Rule:
 express negation - must know illegal and bring it in anyway
 with this case, D thought doing something illegal, on express
negation doctrine, would be convicted (must believe doing
something illegal)
 reverse of all other cases: prosecution should argue express
negation doctrine in this case
 Mens rea is knowing that the substance being imported was
prohibited.
 D is to be judged on the facts as he believed them to be and
under them, no offense was committed. D’s belief that
importation of currency was illegal does not make him liable,
for there is no criminal statute for that offense.
 It makes no difference that D thought wrongly that he was
committing an offense.
 D’s views on the law as to the importation of currency are
irrelevant - this is not a crime.
Katz
 D would be guilty under Prince for his guilty mind.
 But D here did not have the mens rea of knowledge and his mens
rea did not match with his actus reus.
4) Fair Notice (Lambert) Exception
Lambert v. CA - Under limited circumstances, there are constitutional defenses
to a mistake of law offense.
D an L.A. resident and convicted felon.
Local ordinance: felons in the city >5 days must register with police.
D was convicted under law; ignorance of law was not an excuse.
Held: Actual knowledge of a duty to register is a constitutional prerequisite to
conviction for violation.
Reasoning: Due Process places limits on ignorance of law doctrine.
Four critical aspects of concern to prevent exception from swallowing rule:
 Statute punished an omission.
 Notice is a key part of DP and the principle of notice is appropriate where a
person, wholly unaware of any wrongdoing, is brought before a court in a
criminal case.
 Duty was imposed based on status, not activity.
 Offense was wrong only because it was prohibited.
Katz: Lambert defense probably will not work when law addresses a strong
moral duty. Regulations generally probably won’t elicit a strong moral duty.
Summary Case for Mistake of Law: Pentagon PapersU.S.v. Barker
Break-in orchestrated by Nixon operatives to steal Ellsberg’s psychological
reports
Burglars were instructed by White House official that this was not illegal
because Ellsberg was a spy.
Statute: If 2 or more persons conspire to injure a citizen in the free exercise of any right secured
to
him under the Constitution…is a crime.
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Actus reus: D’s committed a warrantless search.
Mens Rea: Conspiracy to injure. Knowingly committing constitutional
violation? Knowingly doing something you later find to be a
constitutional violation?
D’s Defenses:
 Collateral: Mistake as to definition of warrantless searches under
the Constitution. This seems like a moral issue, not simply a
jurisdictional or civil issue. Probably won’t work.
 Self-Same (Express Negation): Statute does not require
knowledge of the penal law. If any D ‘mistakenly’ thought he was
taking away Ellsberg’s Constitutional rights, he will be guilty under
the statute. Taafe cuts both ways.
 Reliance: 2.04(3) - Statute was published, but can D’s rely on
White House official’s interpretation? Cox: creates entrapment
exception beyond MPC. This might save burglars in this case that they were entrapped by the White House official.
 Notice: Works best for ‘unforeseeable’ laws. If notice is required
by law or DP, then anyone can get off if he can prove he was not
notified. But Lambert has boundaries: punishing omission; duty
imposed on status, not activity; offense wrong only because it is
prohibited; only offenses without moral stigma exempted. Seems
like Marrero may get off on this exception, but the Watergate
burglars cannot.
STRICT LIABILITY
 utilitarian. No justification for retributivists who want mens rea to one’s moral choice of
social harm
 Criminal liability without a mens rea requirement. Only actus reus must be proved.
 Offenses that do not contain mens rea element have disfavored status - presumption is the
mens rea is required.
 Public welfare offenses fall under SL. Morissette - Public welfare offenses impute no mental
state.
 illegal sale of liquor, sale of adulterated food, sale of misbranded articles, narcotic
violation, criminal nuisances, traffic violations, motor-vehicle laws, violations of
general police powers’ regulations.
 Discerning what types of offenses do not impute a mental state.
 If not derived from common law, mental state not necessarily imputed. Common law
offenses are not SL unless so codified. Regulations (new stuff) receives brunt of SL
load.
 If violation is injurious to a great number of people - collective interests over
individual, no mental state. Moral guilt imputed.
 If standard imposed is reasonable, no mental state imputed.
 If penalty is relatively minor, no mental state imputed.
 If conviction rarely damages reputation of violator, no mental state imputed.
 Legislative history - does requiring mens rea destroy policy goal of legislature?
 How difficult is it for prosecution to obtain facts, versus effect of SL prosecution on
public at large.
 How easy is it for D to know that what he did was wrong. Must be easy for SL to
pass.

Some non-public welfare offenses are SL.
 Statutory rape - no excuse; we are confident that mistakes of age cannot successfully
eschew mistakes of maturity. Ignorance of a law of morality makes you a worse
human being, deserving of punishment.
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- ADD BALINT

U.S. v. Dotterweich
D (Pres. of company) convicted under mislabeling law even though he was not
responsible for the mistake.
Court: Balancing relative hardships, Congress has preferred to place it upon those who
have at least the opportunity of informing themselves of the existence of conditions
imposed for protection of consumers…than to throw the hazard on the unsuspecting
public.
Eliminated the scienter requirement and established the “responsible corporate officer”
doctrine.

Morissette v. U.S. (p.237) - a classic case for SL (modest penalty, compliance easy to achieve,
can count of prosecutor and jury to pursue)
SL - fine vs lives (as opposed to lives vs. lives)
D, a junk dealer, openly entered an Air Force practice bombing range and took spent
bomb casings lying around for years and then sold them at a city junk market for profit.
 Statute: crime to ‘knowingly convert’ government property
 Defense that thought government had abandoned casings
 Held: conviction reversed, need mens rea
 Reasoning - where criminal law is entirely statutory, if the statute makes no
mention of mens rea, mens rea will be deemed inherent in any offense which is a
codification of common law crime

PROS AND CONS OF SL
Pro Strict Liability (Utilitarian)
Protection of social interests by requiring high
standard of care for some activities
Anti-SL (Retributivist)
Violates principles of penal liability. It is immoral
to punish those with no moral turpitude. Crime does
not and should not mean condemnation without
culpability. MPC Commentaries to 2.05
No empirical evidence that higher standards of care
result from SL
Stigma does result from loss of time, money, legal
costs, and exposure to criminal trial.
Glut of work proving mens rea for every regulatory
violation is not in public’s interest
Great way to ensure compliance with minor
regulatory legislation - social ends override risk of
punishing morally blameless.
SL is an assumption of risk - You know the risk of
SL in, say, pharmaceuticals when you enter the
business. Dotterweich’s conviction was not unfair.
Judge and jury have discretion on whether to find
the act SL.
Statutory rape and Feola already have SL elements
People are bad judges of small possibilities. Under
that rationale, notice serves the purpose of allowing
wildly unfair liability statutes. That’s not right.
But then you’re reading blameworthiness into the
conduct - why not just put it explicitly?
Post-Dotterweich, under SL, the careful will stop
and the reckless will be left. Not what is in the
public interest.
People v. Ceballos - D’s garage was broken into and so he set spring guns. Two boys decide to
break in and see if anything to steal and were shot.
Rule - Deadly force is never permitted in defense of property, even if it is the only means
available to prevent loss. You cannot do automatically what you cannot do yourself if you were
there. D is guilty. X can’t do automatically what he can’t do if he were there.
2 separate lines of defense for SL statutes/arrangements:
1) An argument for SL arrangements - set-ups that automatically punish wrongdoing
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Throwing wallet into a shark tank is not culpable if it is to prevent a robbery. But
under Ceballos, throwing a guy into a shark tank for trying to rob you would be
culpable, so this is culpable as well. But our intuition tells us that the shark tank is
OK (in fact, it is).
 If shark tank OK, then spring guns OK.
 If spring guns OK, then robots which inflict proportionate punishment as OK. As
long as humans do not carry out disproportionate punishment, SL arrangements seem
OK.
2) An argument for SL statutes - a retributivist’s justification.
 If installing dogs, spring guns, and moats with warnings is OK, then installing human
guards to shoot thieves is OK. If human guards are OK, then judges and policemen
who administer disproportionate punishment is not immoral.
 Police are not administering just punishment. They are not acting immorally.
 Nevertheless, hiring judges and policemen is not immoral.
 Retaliation from nuclear attack - Hiring someone with instructions to drop
nuclear bombs after we’ve been attacked is causing him to behave
immorally. But since I do this to prevent future nuclear attack, I act
morally.
 Moral: You can act morally by putting in place an immoral action.
 Therefore, the legislature that puts SL statutes into place is acting morally, but
the law enforcement officials who implement them are acting immorally.
 The retributivist can justify SL statutes and arrangements by making sure that an end is
accomplished that is desired, without soiling his own hands. Instead of arresting a person
without mens rea for drunk driving, a machine is doing it. I, by having the robot act, am
morally causing the robot to act immorally. But at least saving own skin.
 Means matter. Playing with means is crucial to the retributivist. Having a machine do
something that I could not do, I am free from moral culpability.
Under MPC, can only use deadly force in defense of property if fear of imminent harm. Doesn’t
extend to any mechanical device that causes or known to cause death or serious bodily injury.
However, under common law, can use mechanical devices if fear of bodily harm if you were
present, would endanger your life.
ADD STATE v. Guminga - vicarious criminal liability (p.244)
Katz HYPO - Conceptual difficulties in applying SL
 Homer and Marge work at nuclear power plant. Excessive radiation is a 3 rd degree felony.
 Homer has an epileptic seizure and Marge aids him, thereby causing radiation levels to rise
but subsequently brought under control.
 Assume this is a SL statute because it is a regulatory offense that is easily understood and
complied with and that protects the public health.
 Director of plant (D)
 He permitted the violation to happen. Liable under Dotterweich.
 His duty? Or could he displace this duty to H&M’s boss? Difficult to say
because mental states are irrelevant.
 Has duty but hands are tied,  not guilty
 D has organizational duty - there is not much he could do to remove
himself from that duty. BUT, if he took all reasonable precautions, he has
not breached his duty. MPC - one is guilty for an omission only if he could
have helped it - existence test. Therefore, D is not guilty because he did not
breach his duty  negligence standard smuggled in.
 Marge - who assisted Homer - Necessity defense
 Necessity? Non mens rea defense still allowed in SL. Necessity is an actus
reus defense. It may apply here.
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But necessity defense is a matter of balancing probable benefits
with costs. We ask whether the actor reasonably disregarded a
risk. But this lets in reckless standard through the back door.
 Maybe, no actus reus defenses are allowed in either.
 Homer’s Culpability - Voluntary Act Doctrine
Questions asked? Does it resemble a common law defense?
2) what is the severity of punishment?
3) What is the ease of compliance?
 State v. Baker - Decina with SL
 Statute forbids speeds above a certain level. D exceeded it due to
faulty cruise control
 Held: D is guilty because he voluntarily delegated authority to the
cruise control, but remained responsible. He caused himself to act
recklessly.
 Reasoning - If Homer knew he was prone to seizures, he had a
duty. If did not know, no duty.
 Here there is proximate cause
- to be valid, a defense to SL must show the violation was the
result of an unforeseen occurrence or circumstance (must show
no proximate cause)
 We look back to Homer’s conduct preceding seizure. But we don’t look for
a mental state. Homer’s failure to prepare for or prevent her seizure is
reached by the broad statute. He’ll be liable unless the statute is more
specifically tailored.
HOMICIDE
The Mens Rea of Homicide
 Homicide - a killing of one human being by another human being
 Murder - unlawful killing of another human being with malice aforethought.
 Manslaughter - unlawful killing by another human being without malice aforethought.
 Malice
 intention to kill a human;
 intention to inflict grievous bodily injury on another;
 extremely reckless disregard for value of human life;
 intention to commit a felony during the commission or attempted
commission which results in a death
 Degrees of Murder - assumes that murder/manslaughter has already been determined
 PA Model, 1794 (p. 390)
 1st Degree Murder - death penalty
 intentional - willful, deliberate, premeditated killing (Causes lots of
interpretive problems)
 murders perpetrated in a specified manner (Poisoning, lying in
wait, etc.)
 2nd Degree Murder - lesser sentence
 committed in course of other felony (robbery, rape, arson, burglary,
kidnapping, etc.)
 3rd Degree Murder - lowest murder sentence
 all other kinds of murder. Extremely reckless homicide. Criminal
recklessness. Knowingly killing.
 Firing into crowded room, Russian Roulette, drunk
driving in bad weather, failure to feed baby for two weeks.
 Voluntary manslaughter - more severe penalty - second degree felony.
 Sudden and intense passion resulting from serious provocation.
 Involuntary manslaughter - less severe penalty - first degree misdemeanor
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reckless or grossly negligent act resulting in death of another
person.
 criminal negligence triggers this
Distinguishing murder from manslaughter
 Line between unjustified risk-taking that constitutes manslaughter
and that which constitutes murder is not brightly drawn.
 Implied malice is proven if actor’s conduct involves deliberate
perpetration of a knowingly dangerous act with
unconcern/indifference as to whether anyone is harmed or not
 Depraved heart - when recklessness is extreme - risk of death is
very great - and justification for taking risk is very weak, actor is
guilty of murder
MPC Model
 Murder
 Prior reflection (premeditation) should NOT distinguish
capital from non-capital murder. Mental states control.
 No malice aforethought, and no degrees of murder. Only
knowing or purposeful killing or reckless manifesting
extreme indifference value of human life qualify as
murder
 Manslaughter
 Reckless killing of another (w/o extreme indifference) or
what would otherwise be a murder (purposeful/knowing
killing) but where D has extreme mental or emotional
disturbance for which there is no reasonable
explanation or excuse.
 Much broader than common law provocation defense.
No provocative act required. Words alone can warrant
the instruction. D can be wrong as the provocateur. No
rigid cooling off rule.
 extreme mental or emotional disturbance is subjective for
the D
 Reasonable explanation or excuse is objective considered from the viewpoint of a person in actor’s
situation under the circumstances as he believes them to
be.
 person in actor’s situation incorporates accused’s
personal handicaps
 Idiosyncratic moral values of D are excluded
 No misdemeanor-manslaughter rule
 Criminal negligence cannot be foundation of manslaughter.
Premeditation
 In PA model, premeditation can be formed in fractions of a second (Carroll)
 In CA model, premeditation has rigorous requirements, including planning activity,
motive, and manner of killing. (Anderson)
 Commonwealth of PA v. Carroll (p.394)
 After long and protracted fight with nagging wife, D takes gun from
headboard and shoots her.
 Issue: May intent be formed (1st degree murder) when acting out of an
“irresistible impulse”?
 Held: Yes
 Reasoning:
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Whether time period between forming the intent to kill and committing the
killing was short or long is immaterial (very brief time period required for
premeditation and willful intention).
All need is the homicide to be intentional, willful, deliberate, and premeditated.
Society would be a mess if it allowed a break from criminals’ acts on blind
impulse.

People of CA v. Anderson (p. 399)
 D was convicted of 1st degree murder of 10-year old daughter of girlfriend.
No witnesses and D had been drinking. D appeals
 Issue: Must there be clear evidence of premeditation to justify 1 st degree
murder conviction?
 Held: Yes
 Reasoning:
Ct found insufficient evidence that D planned the murder, that D had any
motive to kill the victim, or that the stabbings were deliberately placed blows;
thus, premeditation could not be inferred. Premeditation/deliberation standard
MINORITY RULE
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Katz on premeditation problems:
 MPC: doesn’t really think much of premeditation distinction
 Premeditating killers are sometimes less wicked than spontaneous
killers, therefore it should not be used to draw grades, as in PA.
 E.g., Mercy killings - require lots of agonizing and seems less
culpable than hothead who kills on a whim.
 MPC logic fails: The more premeditation there is, the more
confident we are that the act is the killer’s real wishes,  more
blameworthy than the impulse killer.
 Mental incapacity disrupts premeditation.
 A long time may be necessary to find premeditation in a good man - how
much evidence is enough?
 Is there premeditation if a criminal plans to kill tomorrow but kills tonight
instead? Premeditates, stops, then kills impulsively? Ultimate course
deviates from the premeditated course?
 Retributivist: look at mental state - passion crime is less morally
blameworthy than premeditated ones. Premeditation is deontologically
supported.
Provocation - tool to help in grading homicides (very utilitarian)
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“Split the difference” rationale comes into play
provocation defense allows society to not fully condemn or exculpate a provoked
murder
Justification: deserved to die, can mitigate
Excuse: focus on actor’s mind/conduct.
General Common Law Rule: Excuse and justification are necessary - only strict
circumstances were allowed to provoke - temporal proximity included. Currently
common law loosening up this defense and is going to more towards MPC.
Provocation by victim and distress causes to D.
MPC: Section 210.3 Manslaughter
 Criminal homicide constitutes manslaughter when;
(a) it is committed recklessly; or
(b) a homicide which would otherwise be murder is committed under
the influence of extreme mental or emotional disturbance for which
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there is reasonable explanation or excuse. The reasonableness
of such explanation or excuse shall be determined from the
viewpoint of a person in the actor’s situation under the
circumstances as he believes them to be.
(p.411) Girouard v State - D and wife had marital problems.
HOLD: Mere words not provocation
Maher v. People (p.416)
Facts: D was convicted of assault with intent to kill. D tried to kill a man he had
been told had had sex with his wife. Trial court excluded evidence of
provocation.
Held: Evidence should have been admitted.
Reasoning:
Use to be common law did not allow for evidence of provocation.
More lenient view of Maher is recognized in most states today.
Jurors better to figure out what is “average”, “ordinary” provocation
Standard now: Only provocation in presence of the D can be admitted
General reasoning for provocation defense.
 Utilitarian: People won’t commit adultery if they know that retribution is
implicitly condoned. BUT this misstates deterrence’s concern - it is
supposed to minimize killings (costs) in society, but the provocation defense
encourages killings.
Justification or an Excuse?
 Ashworth (p.410) - The victim’s partial fault justifies the killing. This is
not embracing vigilantism. It is like self-defense, so we lower the charge a
little bit.
 Dressler (p.410) - You have to look at the wrongness of the actor, not the
provoker. Provoked actions are NOT justified - they are partially excused.
When people are distressed, the law should bend a little bit.
PA statute- more relevant to victim’s actions
 if wrongful behavior on part of victim, could have been provoked.
NY statute - no fault requirement. Only extreme emotional disturbance for which
there was a reasonable explanation or excuse, with reasonableness determined from
viewpoint in D’s situation as he believed them to be.
 Same as in MPC, except burden of proof in NY on D, not prosecution
Words as provocation - the common law’s shift towards MPC
 Director of Public Prosecutions v. Camplin: (1978) p.427
Facts: Deceased made fun (‘buggered’) of D after he had sodomised D. D took pan and
split his skull. D pleaded provocation.
Issue: Should D have to provide a reasonable explanation/justification from the
perspective of a reasonable man or a reasonable 15-year old?
Held: A jury should hold a D to a standard of self-control possessed by a reasonable
person, but should consider the D’s characteristics in determining whether the
provocation would make a reasonable person lose self-control. The reasonable person
is one of the D’s same sex and age. But doesn’t include idiosyncracies of the individual
Reasoning:
But reasonable person would not kill. In situation where reasonable person would kill,
shouldn’t he be acquitted altogether?
Michael and Wechsler - (p.432) - not reasonable person killing, per se; but close gap
between D and reasonable person who would be tempted to kill
Words as provocation (Lord Glaisdale): insult and characteristic only relevant in
provocation if insult related to characteristic (e.g., insulting a short man about height
worse than an average person about height).
 You grade the insults with respect to the individual characteristics of D. Then,
transfer that grade to the grade a ‘reasonable person’ would get based on those
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insults. If D’s grade is the same or lower than reasonable person’s, the provocation
defense is allowed. If D’s grade is higher than reasonable person’s, he overreacted
and will not get the defense.
HYPOS: Applying Gravity/Power of Distinction Test
 V taunts M, whose wife killed herself, about her suicide.
 V says wife killed herself because of M’s character.
 If insult related to the characteristic we want to take into account,
we can take into account
 H reveals to W a recent infidelity. This drives W to anger, and she kills H.
W’s attorney wants to present evidence of W’s jealous state - attendant
circumstances that show her tendency to overreact when provoked.
 Reasonableness of W’s behavior and action should be judges in
accordance with her attendant circumstances.
 We don’t want an angry wife defense.
 Apply the gravity of W’s provocation to a reasonable person’s
power to self-control. W’s sensitivity should play on her
gravity of provocation.
 This will so subjectivise the standard that it will
effectively create a reasonable jealous wife standard. The
answer will always be the same between W and the
reasonable jealous wife.
 This application would not apply to any old H/W. The test is
individualistic  slippery slope, have to apply the test to any
single D. Everyone gets off.
 Best case for taking D’s specifics into account: when the sting of the insult
especially matters. If D is a hunchback and he is told that his character is as
crooked as his back, then this would work.
 Accordingly, the rule is that provocation based on words must focus on
the attribute you want entered into evidence. H would have had to call
W a jealous bitch, since jealousy is the characteristic desired to be entered
into evidence. W’s defense is to try and equate H’s confession of cheating
with his calling her a jealous person.
 W’s strategy: 1st, try gravity/self-control distinction. 2nd, analogize
hunchback to the client.

Felony-Murder Rule - mens rea doctrine
 A killing - even if it was accidental- will be murder if it was caused with the intent
to commit a felony (usually enumerated).
 mens rea requirement satisfied if meet mens rea requirement for other felony
 Applies whether felon kills the victim intentionally, recklessly, negligently, or
accidentally. The felony substitutes as malice.
 Regina v. Serne - D burned house to get insurance money on house and son, killing
son in process.
Holding: FMR got D convicted. “If D set fire to this house when the family was in it,
and if the boys were by that act burned to death, then the D was as guilty of murder as if
he stabbed the children.”
Katz: In this case, don’t need FMR because intent to kill child already there. Don’t
need FMR to substitute for mens rea requirement.
People v. Stamp - Victim died from a heart attack partly brought on by fright when he was
robbed at gunpoint by D.
Held: - Conviction on 1st degree murder affirmed under FMR. Take victim as find him.
In PA: Murder in 2nd degree under FMR
In CA: Arson under FMR; could be 1st or 2nd degree.
In NY: 1st degree.
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MPC: N/A because D was not reckless or indifferent
MPC 210.2(b) presumption of recklessness and indifference
 Justification/Criticism:
 Deterrence: Deter felonies be adding to the threat of conviction and
punishment for murder if death is caused.
 Problem: How do you deter an unintended act?
 Problem: Deterrence already embedded in the punishment for the
felony.
 Reaffirms sanctity of human life- Felonies without death are less bad than
felonies with death
 Discourage use of violence during the commission of felonies
 It’s a lottery system. How does a felon know if a death will result?
 Retributivist - Blameworthiness - produce death without requisite
requirement
 some felonies are the equivalent of the felony of attempted murder
and so we should do something to bring them to the level of
punishment for attempted murder.
 Utilitarian - deter felony for fear of murder
 superfluous except where felon already careful
 Symmetry justification
 Transferred intent - felon’s intent to commit felony is transferred to
the homicide
 Misuse of doctrine - Doctrine provides that D’s intention
to commit X, relating to victim A, may be transferred to a
different unintended victim B, of the same social harm, X.
But transferred intent here would allow transfer of intent
from one social harm (X) to a greater harm (Y) involving
the same victim. If D robs store and accidentally sets fire
to it, he did not intentionally set it on fire.
 Limitations;
 Inherently-dangerous felony limitation - Not all felonies
covered. Just serious ones.
 Limiting FMR to homicides that occur during the commission of
felonies dangerous to human life (inherently dangerous ones).
 Theft is not inherently dangerous. Intent to defraud V, which
causes death does not trigger FMR.
 People v. Phillips p.481 - Theft not serious enough.
D told victims he could cure child’s cancer. D was convicted
of 2nd degree murder by application of FMR based on grand
theft and fraud.
Issue: Does grand theft (fraud) trigger FMR?
D: Abstractly, what I did wasn’t worse than conventional
treatment.
Prosecution: Look at specifics of and attendant circumstances
of case.
Prosecutor: Since jury convicted D of FMR, they must have
concluded there was conscious disregard for life.
Court: Abstractly, D may have lied without being reckless.
He may have truly thought his treatment was as good as
hospital’s and he wanted the money. Therefore, FMR is
necessary to get 2nd degree murder charge.
Abstract approach used. No attention paid to attendant
circumstances. But the abstract view is worse for criminals.
Now, committing any broad-categorized felony will trigger
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FMR, and no court will look at attendant circumstances. No
close calls allowed. D’s in general are treated better by
specific approach. Curbs FMR?
 Is a list is not used, some states consider the nature of the felony
and the attendant circumstances to see if it will be a trigger.
 Close to extreme-reckessness concept of malice.
 Hypo:
CA man compels woman to have intercourse under threat of
revealing her infidelities to her husband.
Rape Statute: Nonconsensual intercourse under threat of
blackmail
Rape ends in death because of freak pre-existing condition of
the woman
Reasoning: Phillips: abstract approach - rape is inherently
dangerous, therefore, FMR applies. No looking at attendant
circumstances.
D argue that sex by blackmail is not inherently dangerous,
while normal rape is. Abstractly, rape is not as dangerous
when under threat of blackmail.
Merger Rule Limitation
 Sometimes, FMR does not apply if the underlying predicate felony
is an offense that is an “integral part” or is “included in fact” in the
homicide itself.
 since most homicides precluded by some other felony, FMR could
theoretically turn all homicides into murder, if not for the merger
rule
 This is pro-criminal  preventing FMR forces prosecution to
prove a mens rea to get murder for homicide. D can use
provocation and all other defenses of actus reus and mens rea.
 Suppose D negligently kills V. Criminal negligence is a felony.
Because death occurred during commission of a felony, D would
be guilty of murder! Merger doctrine prevents this.
 People v. Ireland - seminal case for Merger Doctrine (p. 489)
Prohibited FMR in circumstances where felony was a necessary
ingredient (integral part) of the homicide. Assault with a deadly
weapon merged.
 People v. Wilson (p.490) - extends Ireland (CA)
D breaks into estranged wife’s house, kills wife, and her lover.
Clearly case for FMR. Burglary with resulting murder.
Held: FMR cannot “apply to burglary-murder in which entry would
be non-felonious but for intent to commit assault, and assault in integral
part of the homicide…”; MERGED
 People v. Miller (p. 493) (NY) - reject Smith
D entered apartment of F with intent to assault him with a deadly
weapon. A, another occupant, attempted to help F and is killed by D.
Held: Because D committed burglary by knowingly and unlawfully
entering F’s apartment with intent to assault, and homicide in
furtherance of burglary, FMR satisfied.
 People v. Sears - (p. 490) - extends Wilson (CA)
D entered estranged wife’s cottage with intent to assault her. Her
daughter intervened and was killed by D.
Prosecution: Felony of burglary with intent to assault the wife was
“independent of the homicide of the daughter” and therefore FMR
should apply.
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Held: No FMR because would but person like D in worse position
than someone who had intent to attack both persons and kills one or
both.
 People v. Burton (p.491) - (CA) - refined Ireland.
D charged with FM on the basis of a killing in the course of an armed
robbery. D want to redefine robbery as assault with deadly weapon 
integral part of homicide and therefore not subject to FMR.
Held: Ct. rejected. If death results during commission of an armed
robbery, the underlying assault does not merge with the homicide since
the felonious purpose of the conduct - to take property - is independent
of the homicide. Independent felonious purpose existed. FMR
applies.
That the felony is listed is not dispositive. Robbers may do things
not expected by legislators - case-by-case basis. Specifics examined
by the court again.
Fear of disruption of homicide doctrine:
robbery may not qualify for homicide Merger would not
interfere with homicide prosecution
assault invariably involve homicide Merger would
interfere with homicide prosecution
 People v. Smith - (p.488, CA) - FMR disfavored
D abused 2-year old daughter until she went into respiratory arrest.
Issue: May felony child abuse that caused death be used as underlying
felony under FMR?
Held: Where the underlying felony is based on an independent felony
not related to the assault causing the murder, FMR can follow. The
assault caused the murder here, so it is merged and FMR does not
apply.
Comment:
If already have some type of murder, don’t want to use FMR because
already have homicide
FMR is a disfavored doctrine; it is usually unnecessary and it erodes the
relation between criminal liability and moral culpability. The doctrine
should be given the narrowest possible application consistent with its
purpose of deterring those who engage in felonies from killing
negligently or accidentally
FMR would interfere with homicide  turn all homicides to FMR
Parents beating kids to kill, get merger and can only get him for
abuse.
Parents who beat to discipline which results in death will get
murder.
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CAUSATION
 MPC Section 2.03(1)(a)
(1) Conduct is the cause of a result when:
(a) it is an antecedent but for which the result in question would not have
occurred; and
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Hypo: If all cases in chapter same and victim doesn’t die
 perpetrator still equally bad but no bad consequences  no prosecution
BUT blameworthiness doesn’t change, only a matter of hitting target
what if D attempt to kill, has coughing fit, and doesn’t kill? Not guilty of
anything
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Rationale for making causation a relevant consideration
 D is only guilty if his mens rea and actus reus caused the intended harm.
 Causation finds its primary moral justification in retributive concepts of just
desserts. No vicarious liability in criminal law. Personal responsibility
obtains.
 Causation in crim stricter than torts.
 Sometimes moral blameworthiness is identical, but one D is treated more
harshly than another.
This is because luck plays a crucial role in the criminal law.
 Think of 2 D’s finding adulterating spouses. One shoots and hits;
other aims but then has an asthma attack and doesn’t fire. The one
who hits is treated more harshly than one who has the asthma
attack. But they had the same evil state of mind and same attempt.
 Intuition justifies our reliance on luck in the criminal process. Is this
legally justified?
 In a goal-oriented society, it is fair to judge people on “first to the
end” standard.
 In a perfect world, the lucky are just as guilty as the unlucky.
 Abandonment - If 2 D’s attempt a crime, both repent, but only one
successful (one repent before crime, and one after), we punish one
and not the other, or else we will punish an innocent or let a harmcauser go free.
 One who seriously repents is deontologically repentant,
yet we still punish him because of the harm he has caused.
 Abandonment doctrine doesn’t make sense. Reversing
course does not wipe slate clean of the original bad act
(deontologically speaking).
1) Cause in Fact - But for Causation - sine qua non test
a) Overdetermination: 2 killers, each of whom by himself could simultaneously
and independently bring about bad consequences
Each act alone was sufficient but for cause of death of victim
Re-describe as a 2-blow death; each D now cause of death.
 MPC - would the victim have died in the manner in which he died but-for
the actions of D
 What of nurse who turns off light in hospital room. Nurse
therefore changed the way V died - in the dark. But she is
obviously not guilty. We must probe further to see if D did the
moral equivalent of homicide.
 too overinclusive  everyone cause
b) Pre-Emption: Man in the Desert Problem
 V has 2 enemies, P & D. Man enters desert with canteen of water.
One poisons, the other cuts hole in canteen. V dies of thirst. Who
guilty?
 Poisoner - V did not die of poisoning. I did not cause death
 Driller - I saved V from dying of poisoning. I did what a friend
would do.
 P - But I was lucky. Luck can distinguish 2-evil intents (shooting
at adulterating wife). No poison touched V’s lips.
 D - I let the victim live longer than had I not done this. Why
should I be punished?
 P - Just because you prolong life doesn’t mean you’re not
guilty of killing. You drilled hole maliciously, not knowing the
poison was there. you were no friend to V.
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c)
Similarly, if I kidnap and execute victim while he’s on his way to catch an
airplane that crashes.
 I prolonged victim’s life. I helped him by giving him a longer life!
 Just because you prolong life does not mean you’re not guilty
of killing.
 Conclusion: Kidnapper and driller are but-for causes of death.
Wrongful Procreation
 D has AIDS, has intercourse with woman, she becomes pregnant with
child. Child has AIDS and dies shortly after birth. Homicide?
 YES: D was reckless, performed culpable act (sex) and but-for his
actions, the baby would be dead.
 NO: But-for his actions, baby would never have been born.
 Ordinary ‘but-for what you did, I would be better off’
argument cannot be made by baby. It would not be alive.
 What if parents predisposed to genetic disease (>90%) fatal?
 What if AIDS-infected baby about to be miscarried but saved but
doctor and dies later? Is doctor liable? Father?
 Chemical plant, badly managed. Workers meet, marry, and have kids
who then die from exposure to chemicals in area. Plant is sued
 But-for the reckless activities of the plant, the parents would not
have met and the child would not have existed.
 But-for the reckless activities of the plant, the baby would
not exist.
 Ordinary ‘but-for what you did, I would be better off’
argument cannot be made by baby. It would not be
alive.
 Prosecution tries to frame the issue just in terms of baby’s conception and
birth. D’s try to extend time frame to include the reason that the baby was
able to be born in the first place.
 CONCLUSION: It does not matter which side we choose, as long as we’re
consistent in how we choose our time frame.
KEY Question: How long back in time do you cut the causal chain?
2) Proximate cause
a) Foreseeability
 Justification: I try to shoot victim but miss. Sound of shot causes unknown
animals to stampede and kill the victim. I have actus reus, mens rea, and but-for
causation. However, an unforeseen intervening cause did V in and I’m not
liable.
 If I had been told animals would run, I am liable.
 Katz thinks this knowledge transforms my mental state to intent.
 Counterpoint: Information of a minimal (infinitesimal) risk
should not create intent. Wacky deaths remain unforeseeable.
 Katz: You can always come up with fine/coarsely grained
foreseeability to make things look foreseeable or non-foreseeable.
Even bullet in head at close range.
 People v. Arzon (p.551)
D set fire in multi-story building. Firefighter respond to his fire and is killed but
another fire set by another arsonist on lower floor.
Held: D’s conduct indicated depraved indifference to life. Response of
firefighter foreseeable. D’s conduct was not exclusive factor in death (and need
not be to cause liability) but the ultimate harm was a result foreseeably related to
D’s acts.
Defense: Merged fires - D can only foresee the fire he set.
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Problems with Foreseeability
 When does foreseeability not automatically indicative of proximate
cause?
 Thin skull rule - take victim as is
 Foreseeability is not required for FMR. FMR is more strict
liability, and but-for causation will generally work for proof. Take
victim where you find him.
 Voluntary Intervening Act
 Criminal swindler takes all of V’s money, so V commits suicide.
 V’s suicide is voluntary intervening act- breaks chain of
causation. D goes free.
 Man tells woman he’ll jump from window if she leaves. She
leaves.
 Man’s voluntary intervening act breaks chain of causation.
- More on Causation
 HYPO: In Kibbe (p. 551) (robbers leaving victim by highway), instead of
being hit by car (foreseeable), killed by plane making emergency landing.
Foreseeable?
 People v. Acosta (p.548)
D lead police chase. Police helicopters chasing crash into one another.
Issue: Is D proximate cause of the helicopter crash?
Held: YES
Reasoning:
 In a police pursuit, it is an appreciable probability that one of the
pursuers may act negligently or recklessly to catch the quarry.
 That no prior crash has occurred is a testament to police skill.
 Rule: Extraordinary results are not proximately caused. Results
here are not extraordinary.
 MPC analysis: Acosta - D would have been found innocent.
 2.03(1) - but-for causation there
 2.03(2) - N/A because D did not intend or know the helicopter
would be there.
 2.03(3) - Aware of risk?
 Foreseeability - no too outlandish
 (a) - no transferred awareness here
 (b) - this is no coincidence. This was not the same kind of
injury as was probable in a situation like this
 2.03(4) - FMR. But there is no foreseeability because the crash
was not a probable consequence
 MPC analysis: W leaves H and he jumps - W would be guilty
 === MPC HAS NO INTERVENING ACTION DOCTRINE
 MPC provides that the D will be treated as causing the result unless
the manner in which it occurred is too remote or accidental to
have a just bearing on the D’s liability.
 2.03(1) - but-for causation here
 2.03(2) - Death is the purpose of the girl
 (a) - no transferred intent problem
 (b) - the jump was not accidental or remote. But drafters
say it is remote and accidental??? How do you interpret
these exceptions?
 CA Provision analysis p. 580
 1(a)(ii) - involves the same kind of injury or harm as that designed
or contemplated and is not too remote, accidental in its occurrence,
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or dependent on another’s volitional act to have a just bearing on
the D’s liability or on the gravity of his offense…
 The gets W off.
 Helicopter case comes out the same way.
 People v. Warner-Lambert Co. - (p.552)
Company and officers indicted for manslaughter after explosion at chewing gum
factory. Had been warned of potential problem.
Held: Evidence not sufficient to establish the foreseeability of the immediate,
triggering cause of the explosion. “D’s actions must be a sufficiently direct
cause of the ensuing death” before imposition of liability.
 Katz’s Hypos:
1) Suppose plane lands close to V, frightens him, and he dies. Manslaughter?
- not foreseeable plane would land there  breaks chain of causation
2) What if confront him and he has heart attack?
 take victim as he is  eggshell skull principle
Dramatizes 2 unforeseeable conditions, one capable of breaking chain of
causation and the other doesn’t based on eggshell skull rule
 Stephenson v. State
D kidnapped woman. Allowed woman to go to drug store where she bought
poison and subsequently tried to commit suicide. Died a month later from
various problems relating to poison.
Issue: May a person be guilty for inflicting an injury that contributes
substantially to a death, although other causes also contributed?
Held: Yes
Reasoning:
Victim rendered irresponsible by D’s actions. Doesn’t break chain of causation.
Katz’s take:
 Act must be truly voluntary to break the causal chain.
 Suicide was not sufficiently voluntary because V had no options she was boxed in because of D, and that took away her ability to
voluntarily do anything that relieves D of culpability.
 Drag Racing - can survivor be charged with liability for death of other?
 D - each person acted voluntarily to participate, break chain of
causation
 Prosecution - assume foreseeability (a point which can always be
argued in reality) intervening actor reckless (wife threaten to live
recklessly)
 D - if other driver reckless, stronger case for not making D liable
 BUT remember criminally negligent doctor who’s actions did not break
chain of causation, other drivers negligence doesn’t break either.
 What if passenger in one of participants killed? - his recklessness not
enough to break chain; only negligent in getting into car
 Russian Roulette  imagine game wherein participants hold gun to each other’s head
 similar to passenger case 
 People v. Campbell (p.561)
D encouraged deceased to kill himself and finding out that deceased slept with
wife. D gave deceased his gun and five shells and left. Deceased shot himself.
Issue: Does providing a weapon to one who subsequently kills himself murder?
Held: No
Reasoning:
Action by deceased broke chain of causation.
D only hoped deceased would kill himself, but hope does not provide the degree
of intent required for murder.
 State v. Preslar (p.565)
34
H and W fight. W leaves to go to father’s house but decides to sleep in front
where she dies of exposure.
Held: W’s voluntary act caused her death.
 she engaged in voluntary intentional action
HYPO - D shoots V, but doesn’t kill. V goes to hospital and kills herself to
alleviate pain
Even if V shot someone else, D will be charged with other’s death.
Voluntary Intervention Principle
 V voluntary enough to absolve D or involuntary enough to implicate D
 I cannot be held under causation if I hire someone to kill someone else.
That person acted knowingly and intentionally, both of which make agent a
voluntary intervening cause. Agent’s intervening voluntary act prevents
homicide charge to be levied on me. See Complicity.
 If a burglar beats up the victim, V is taken to the hospital, and
the doctor is negligent, that will not break the chain of
causation. If doctor was very reckless, knowing, or intentional
then that breaks the chain of causation.
 Gray area - it is up for argument whether normal recklessness will
count as voluntary intervening act
Addenda on the proximate cause limitations: (concise review of above)
1) Pharmacist in Stephens - He was a voluntary intervening actor in V’s death.
V may not have voluntarily acted, but pharmacist did. Tough case rationale - in terms of the pharmacist, D’s rape and kidnapping were
voluntary, therefore he’s exculpated.
 This is even true while holding that in terms of D, V’s acts were
NOT voluntary.
2) Timing - Russian Roulette; Mercy killing/Assisted Suicide.
There is too much time between V’s voluntary act and D’s act of killing.
 If V has an antidote option after I administer fatal poison, I can get
off - V’s failure to take it is a voluntary intervention breaking chain
of causation.
 Maybe RR V can be said to have failed to move his head before he
pulled the trigger.
3) Accomplice - I am not proximate cause of V’s death. Another person
voluntarily intervened and broke chain of causation.

COMPLICITY
 actively, knowingly, intentionally, or purposefully facilitating or assisting another
individual in commission/attempted commission of a crime
 distinct from conspiracy
 Derivative liability, not an independent offense like conspiracy. Principal’s acts
become accomplice’s acts
Why do we need complicity?
 Hicks variation - one person encourages another to commit homicide
 Gladstone variation - we cannot pint liability on D because statute encourages sale
 Crowd - each person is a cog in a machine. No one made causal contribution to outcome. But
we still do not want to let individuals off the hook.
Parties:

Principal - person who, with mens rea required for commission of the offense,
physically or through an innocent instrumentality commits the offense
 Trained dog that steals is an innocent intermediary
35

Accessory - Intentionally assists in commission of the act, actually or constructively.
Can be before or after the fact
Types of Assistance:
 With requisite mens rea, one who assists principal via physical conduct,
psychological influence or omission
 Psychological influence - inciting, soliciting, or encouraging
Assistance required:
 A person is not an accomplice unless his conduct/omission in fact assists in the
commission of the offense. (But see below in actus reus section)
Amount of assistance required:
 Knowingly failing to prevent the commission of an offense does not trigger
complicity, unless a duty is imputed.
 A person is not an accomplice unless his conduct (omission) in fact assists the
commission of the offense. However, once it is determined that A assisted P, the
degree of aid/influence is immaterial.
 If A utters words of encouragement to P, who fails to hear him, A is not
chargeable.
 If A opens a window for P but P didn’t know about it and entered through a
door, A is not chargeable.
 Causation
 A is accountable for P’s conduct even if A’s assistance was causally
unnecessary in the commission of the offense.???????
 Accomplices do not have a defense of lack of causation. The causation
problem is why accomplice liability rules exist in the first place. It is
derivative liability.
 Problems:
 Exceedingly remote connections to a crime can ensnare an
accomplice.
 Accomplice law can result in disproportionate punishment.
MPC approach
 S is an accomplice of P in the commission of an offense if, with the requisite mens
rea, he:
1) solicits P to commit the offense;
2) aids, agrees to aid, or attempts to aid P in the planning or commission of the offense;
or
3) has a legal duty to prevent the commission of the offense, but makes no effort to do
so.
 Person is guilty of an offense if he commits it by his own conduct or by the conduct
of another person for which he is legally accountable, or both.
 Innocent Instrumentality - explicit where common law is implicit:
a) D must have a mental state sufficient for commission of the offense; and
b) D must cause the innocent or irresponsible person to engage in the criminal
conduct.
 Departures from common law:
 Soliciting is not aiding - it is an independent basis for accomplice liability.
 Agreeing to aid satisfies MPC. Encouragement is not necessary, as
it is in common law.
 Accomplice may be held accountable as an accomplice if he attempts to
aid in the planning or commission of the crime, even if his aid proves
ineffectual. Common law says that if accomplice opens window and
principal breaks through a door, complicity is lacking.
36

Note relationship between complicity and attempt doctrine. It is possible to
attempt under MPC via complicity doctrine even if principal is not guilty of
the crime.
 Mental State
 See MPC 2.06 - see hypos below
 Limits to accomplice liability
 A is not an accomplice of P’s if A’s conduct is inevitably incident to the
commission of the offense.
 Defense of abandonment - neutralization of assistance, timely warning to
police, or an attempt to prevent commission of the crime will get accomplice
off.
 State v. Gladstone: (p.650)
D didn’t have enough weed to sell to undercover cop. Referred cop to acquaintance who sold and
was arrested.
Held: no liability based on simple communication
Reasoning:
Nexus between accused and D lacking. No intent by D to aid and abet the seller.
D did not intend the sale - he only knowingly aided. He had no economic interest.
Why not get on complicity to buy?
 Buyer undercover agent, not committing crime
 no complicity without crime
HYPO: What if bank robber who gets spontaneous help? Need robber to intend aider to help?
 People v. Luparello
D told friends that he wanted to find ex-lover “at any cost.” D’s friends kill Martin when he
doesn’t reveal information. D did not intend for M to be killed.
Held: D liable.
Rule: Aider and abettor must intend to commit the offense or to encourage or facilitate its
commission.
Reasoning:
Accomplice liability derives from the aider and abettor’s intent to commit or encourage the
commission of the crime.
Recklessness Mental Standard: Lower mens reas requirement in complicity cases to simply
recklessness.
D guilty for voluntary acts of principals. Recklessness in wanting death.
Gladstone would be guilty under this rationale. He recklessly encouraged known outcome knowing sale of drugs.
 Hicks v. U.S. (p.644)
D twice laughed and told victim, Colvard, to die like a man. Stan Rowe then shoots V. D and
Rowe rode off together at Rowe’s command but soon part.
Issue: May a person be found guilty of murder when the words he intentionally uttered had the
effect of encouraging the murder but he did not intend that effect?
Held: D must have intended to encourage and abet R. Realizing that his words would be taken as
support is just knowing - not intent - to assist in the murder.
Reasoning:
Need intent to help or incite the shooter, not just intent to say the words. Effect of words
irrelevant.
BUT, line between knowledge and intent fuzzy.
HYPO: Principal knows girl 15. Driver assists in getting P there. Is driver guilty in complicity?

Johnson v. Youden (p.659) - Circumstance crime - Selling house at excessive price
37
D charged with helping builders to sell house at illegal price. D did not realize that this was an
illegally excessive price.
Held: Before a person can convicted of aiding and abetting the commission of an offense, he must
at least know the essential matters which constitute that offense.
Reasoning:
You are only guilty if you wanted all elements (attendant circumstances) of the offense, including
death if applicable
Under this reasoning, Driver in above hypo would get off.
BUT, for Pincipal, doesn’t need to know to be liable.
MPC - 2.06(3)(a) - intentionally ambiguous on this point
 there was no purpose of promoting the commission of the offense.
Could there be liability without complicity requirement?
 no, didn’t commit the actus reus of the offense
 Should we hold to higher mens rea to even out
 State v. McVay- (p.661)- Result Crime - Manslaughter
K was making repairs on a ship boiler, knew it was faulty, but said boat could run. Boat blew up.
Captain charged with reckless manslaughter; K charged as accessory before the fact. K charged
that no one could be charged as an accessory before the fact to manslaughter that arose out of
criminal negligence.
K: No malicious intent.
Prosecutor: You participated in risky behavior and wanted boat to go out. The risky behavior
led to death, so you contributed to manslaughter.
Johnson: K’s conviction is appropriate - he did not intend the boiler to explode - he only
intended the reckless behavior to take place (sending boat to sea).
Held: K guilty.
Analysis under MPC:
MPC 2.06(3) Accomplice if:
a) with the purpose of promoting or facilitating the commission of the offense, he
i) solicits such other person to commit it; or
ii) aids or agrees or attempts to aid such other person in planning or
committing it; or
iii) having a legal duty to prevent and fails to do so; or
b) his conduct is expressly declared by law to establish his complicity.
 Does not apply because K has no purpose to promote or facilitate commission of
manslaughter. Doesn’t even apply to the principals.
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 is sufficient for the commission of the offense.
 Fills gaps for crimes where D engages in conduct up to the point where the result occurs.
 Accomplice in the conduct resulting causing the result
 Exception to subsection 3
 In a result crime (manslaughter here), one’s conduct causing that result makes him an
accomplice if he wanted the reckless conduct to occur and as long as he was as reckless as the
principals. K guilty here.
 Adopts McVay rule.
HYPO: Statute: You have to intend reckless conduct (as to whether drug is contaminated) and
you have to intend the result (contaminated drug to change hands) to happen.
Tradeoff Rationale: Causation no longer required for accomplices. Causation not required in
2.06(3), so it’s easier to prosecute aiders and abettors. As a tradeoff, D must display purpose, the
toughest mental state to prove.
Pharmacist recklessly sells a drug that he substantially thinks is contaminated. His assistant gets
it for him with the same mental state.
38

(3) does not get assistant because he does not intend the sale of the recklessly
dangerous drug.
 (4) gets assistant off because his conduct causes the result that the offense addresses.
McVay parallel - as long as he acted culpably (recklessly) with regard to the
dangerous drug, he will be an accomplice in the sale as well.
HYPO: Statutory rape - D knows that P will have sex with his probably underage passenger.
 Statute: requires recklessness as to age of victim and the act (result) of sex.
 It is unclear whether statutory rape is a circumstance or result crime. Therefore, we
don’t know whether 2.06(3) or (4) applies.
Defendants can argue that this is an absurdly fine distinction.
 People v. Abbott (p. 662)
Drag race. D’s opponent struck and killed another car killing that car’s driver and 2 passengers. D
convicted of negligent homicide.
Issue: Is a participant in a drag race criminally liable for a death caused by the collision of the
other participant’s vehicle with the deceased’s vehicle?
Held: yes, D intentionally aided P in the unlawful use of the vehicle. He gave him assistance or
encouragement to P.
Reasoning:
A person may be criminally liable for criminal conduct engaged in by another person if he a) acts
with the necessary mental culpability and b) intentionally aids the other person to engage in the
conduct.
Under (4) - intended reckless conduct; wants to win the race so did not want principal to be
reckless in passing him.
However, D wanted opponent to be reckless or else there would not be a race.
Hypo: What if one of drag racers die. Is his competitor liable?
Not manslaughter  reckless self-killing not a crime; no crime on principal, no crime on
accomplice
HYPO 2: Drunk friend wants to use my car to drive home. He runs over someone. Am I an
accomplice?
 I did not intend for my friend to kill someone else, so I’m not guilty under (3).
 (4) - I recklessly contributed to the circumstances of the offense. D is charged with drunk
driving - a reckless crime. I’m probably screwed.
PROBLEMS OF ACTUS REUS
 Wilcox v. Jeffrey p. 667
Aliens not allowed to work in UK. D, an owner of a jazz magazine, greeted Hawkins upon arrival
and went to his concert.
Held: A person may be guilty of aiding and abetting a criminal act simply by being a paid
spectator at an event and publishing an article about it.
Reasoning:
D definitely encouraging conduct by attending concert.
But if remove D, concert would still go on. Group action - why every member of group could
argue that without group, crime would not have occurred. At extreme, everyone could argue this
and therefore no one would be guilty.
Complicity was created for cases where we are sure there is guilt, but where we can’t pin guilt
(causation?) with traditional criminal law tools.
Should complicity make a difference?
 In general, it does not. Yelling at deaf guy, TV, or Jack Ruby? How does this segue
to peeling?
 Peeling people off (see group action)
39
Approving bystander of crime
 does things that don’t make a difference
 How distinguish accomplices?


Common law: distinguish between actually aiding and attempting to aid
 shouting encouragement at Stan Rowe who has already resolved to kill and
makes no difference  not guilty
 guilty in crowd that you’re shouting even if can’t distinguish your voice.
 BUT if shout encouragement at a deaf person  attempt to aid, not
accomplice
MPC - attempt to aid also guilty
 (MPC 2.06(3)(a)(ii) - attempt to aid = aid)
Redundancy by irrelevance v. redundancy by true ineffectiveness
 Shout encouragement to someone already resolved to kill
 Shout encouragement to deaf person
 MPC - doesn’t matter, still guilty either way; guilty under actus reus of complicity
 Distinction only matters in common law
 State ex rel. Attorney General v. Tally, Judge - case of telegram telling messenger not
to send other telegram
Liability of Secondary Party in Relation to Primary Party
 An accomplice may be convicted of an offense whether or not P is convicted of an
offense.
 A person cannot be an accomplice to a crime that has never occurred.
 Special Relationship Problems:
State v. Hayes - p. 671
Hill, relative of owner of store, aids D to try to frame him.
D stayed outside and received goods that ‘principal’ stole.
Held: D did not have requisite intent, because it must be derived from P. D
has actus reus but no mens rea.
 can’t be an accomplice because no crime was committed
 can’t be principal because never entered store
Further Analysis:
MPC: 2.06(1) - Maybe we don’t need complicity law. But D did not break and enter.
No direct liability. There was no innocent intermediary (like a dog) - there was a
voluntary intervening cause that broke the chain of causation.
2.06(2)(a) - D did not cause innocent intermediary to engage in criminal conduct. He was
not an innocent. D did not proximately cause the offense, and intervenor was innocent
only because he was in cahoots. D did not cause the consequence.
2.06(3) - there was intent to aid. However, 5.01(3) says that aiding someone not a
principal is merely an attempt at complicity.
HYPO: What if Hill had been forced at gunpoint?
Hill now an innocent agent
Innocent Agent (Perpetration by Means) Theory: deal with situation where person
should be acting as principal
- The common-law innocent instrumentality rule (adopted by the MPC) provides that a
person is the principal in the first degree , if with the mens rea required for the
commission of the offense, he uses a non-culpable agent to commit the crime.
 under 2.06(2)(a) - liable if caused innocent intermediary to commit the
crime
 should be guilty if force someone else to perform actus reus if you have
mens rea
40


E.g., D feed innocent witness, W, false information who regurgitates it at
trial. W is not guilty of perjury due to lack of mens rea. But is D guilty of
the offense through the innocent-instrumentality doctrine? Katz suggested
that there is a problem here because D was not a witness under oath, i.e., he
did not perjure himself. See United States v. Walser.
Suppose I testify against D, D convicted and executed? Hold me for murder
for state as innocent agent?

2.06(5) - A person who is legally incapable of committing a particular offense
himself may be guilty thereof if it is committed by the conduct of another person for
which he is legally accountable, unless such liability is inconsistent with the purpose
of the provision establishing his incapacity.
 Assist crazy guy to commit homicide; insane and commits murder; resolved
to do so on own but I encourage him

2.06(6) - Person is not an accomplice if he is a victim of that offense….
 Statutory rape - victim gets the exemption
 Doctor charged with committing abortion. Is woman an accomplice? (5)
says yes. But (6)(b) says the offense is defined such that her conduct is
inevitably incident to its commission. The legislature must have exempted
the woman, or else they would have mentioned her.
2.06(7) - Accomplice may be convicted on proof of commission of the offense and
his complicity therein, even though the principal has not been
prosecuted/convicted…
 Overrides diplomatic/coercive immunity problem.
 If someone with diplomatic immunity carries your drugs, there is no
principal offender. But this statute still reaches the accomplice.
 Just because there is no crime does not mean that he did nothing wrong.
 difficulties of proximate cause; argue that factor which mitigates P was
personal and therefore does not extend to A (perpetration by means?)


Special Relationship Hypos: 2.06
 H persuades friend to have sex with his wife. He explains that wife will
resist, but this is part of the game. Friend has sex with wife. Is H guilty of
rape? Statute: H cannot rape wives.
 (3) - Does not apply. Friend had no mens rea?
 (1) - H did not conduct the act, and he was not legally accountable
for his friend.
 (2)(a) - Innocent intermediary - H used friend to commit the crime.
 (5) - Legal impossibility of H raping wife is pierced.

D feeds information to a witness that witness sincerely but falsely delivers.
Is D guilty of perjury?
 (3)(a)(1) - D facilitated the crime. But there was no principal witness did not have mens rea for perjury
 See Innocent Agent
 (1) - D had no proximate cause. He did not testify. D is not under
oath; D made no statements to the court.
 (2)(a) - D acted with mental state of the perjurer, but perpetrated it
through an innocent person. This applies.
 (5) - addresses any perjury-specific problems with charging D.

Suppose I testify against D, D convicted and executed? Hold me for murder
for state as innocent agent
41





(1) - I had actus reus and mens rea and but-for causation.
However, the hangman was a voluntary intervening actor.
(2)(a) - Direct cousin of direct liability. But there seems to be
action with culpability that is sufficient for commission of the
offense
(3) - Derivative liability for the crime of the P. The hangman is the
P but he did not commit the crime. Therefore there is not a
principal.
(7) - Because the executioner didn’t behave wrongly, it’s hard to
say the perjurer was an accomplice to any crime he committed.
Gladstone - not prosecuted as an accomplice to the buyer. § 7
presumes some wrongful conduct by the P, but there is none for
her??
 However, if we see executioner as having acted
wrongfully by executing the innocent, but being protected
by immunity, (7) will get the perjurer?
Under common law - justification causes carry over
 But not defenses
 crime has been committed, just because P can’t be charged doesn’t mean
crime not committed; but still must always prove the per
 petrator’s guilt as part of the offense
 Regina v. Richards - (p.679)
D hires thugs to beat up husband. Thugs commit assault without intent to inflict grievous
bodily harm and husband escapes before any serious harm befalls him.
 (2)(a) - Does not apply because thugs were innocent intermediaries
 (3) - Derivative liability. There is no principal. There was no grievous bodily harm.
 (7) - If we think if thugs as having committed the serious offense, but being protected
under “immunity”, we can get D (accomplice) for the more serious mental state.
How impose liability?
1) Liability on principal
2) accomplice
3) Innocent Agent (perpetration)
4) Liability by Conspiracy
Perpetration by means:
Liability by Conspiracy - an agreement between two or more persons to do an unlawful act or to
do a lawful in an unlawful manner
 preliminary or inchoate crime (like attempt or solicitation)
a) the parties to a conspiracy (unlike those who commit attempt) may be convicted for
the object crime and the conspiracy, if the conspiracy is carried out; and
b) the parties may, on the basis of the conspiracy, incur liability for crimes committed
by other members of the venture
Criticisms


vaguely defined
D may be convicted well in advance of any act in perpetration of the substantive
crime
predominantly mental in composition, at the expense of actus reus
42


May be a separate offense or may be graded in accordance with the object of the conspiracy.
MPC grades conspiracy, unless it is a capital crime or felony in 1st degree.
Common law punishes for conspiracy and the substantive crime. MPC merges the two, unless
conspiracy is proved to be greater than the acts performed.
Complicity (Aid/Comfort) vs Conspiracy (Planning)
 A conspirator’s accountability exists even if he did not assist the party whose conduct
is imputed to him
 D may be held accountable for the natural and probable consequences of the
conspiracy, which may result in extensive liability
 Under complicity law, D is only accountable for the natural and probable
consequences of the particular crimes in which the person has intentionally
assisted.
A) Krulewitch v. U.S. (p.720)
D try to transport prostitute from NYC to Miami. Witness made hearsay testimony concerning the
prostitutes taking the fall for the john.
Hearsay evidence = evidence of a statement made other than by a witness while testifying at the
hearing which is offered to prove the truth of the matter asserted.
2 exceptions:
1) an out-of-court admission by the D
2) an out-of-court statement of a conspirator made by her while participating in the
conspiracy may be introduced in evidence against the other conspirators
SC - held that the statement had been made after the alleged event (transportation of the witness to
FL for prostitution) had ended, and thus could not have been made while the D was participating in
the conspiracy.
 if 2 people on trial for conspiracy in one joined trial, if clear evidence would be admissible
against one D and not the other  anomalous
 Prosecution: hearsay part of continuing conspiracy to cover up
 But, if follow this logic too far in positing what accounts for conspiracy
 Katz insight from Greek - Hearsay is offered to prove the truth of the matter asserted. Katz
says that an assertion must be true or false. Thus, commands and requests are not hearsay.
B) The Pinkerton doctrine: Who is part of a conspiracy?
Facts: 2 brothers engaged in conspiracy to smuggle alcohol without paying taxes. Charged with
tax fraud. One brother was in jail when conduct was performed. He was charged with conspiracy.
Held: Court held that a conspirator may be convicted of committing the offense intended although
he had no direct participation in the actual commission.
a) Pinkerton doctrine:
1) falls within the scope of the conspiracy; or
2) is a foreseeable consequence of the unlawful agreement
b) some elements of conspiracy:
 “logical outgrowth” - reasonably foreseeable consequence
 don’t need stake in venture
 part of vague agreement of one crime which figures into other
 Compare with Luparello - stake in venture tied to intent
 no problem with vicarious credit, why should there be a problem with vicarious
liability
MPC § 5.03(1) - unilateral approach to conspiracy. Provides that a person is guilty of conspiracy
if, with the purpose of promoting or facilitating the commission of a crime, she agrees with another
to commit the offense.
43
MPC § 5.03(2) - person guilty of conspiracy with other parties - whether he knows their identity or
not - if he knows that a person with whom he conspires to commit a crime has conspired with
another person or persons to commit the same crime.
Hypo applications:
 If P kills V during robbery, S (lookout) is accountable for the death under conspiracy and
complicity. But if S looks out for P while he robs a bank, and P rapes someone while robbing,
S is not a co-conspirator in the rape because it was not a foreseeable consequence.
 A hires B & C to rob one bank each. D is to steal a car to be used in robbing bank B.
 A is an accomplice and a conspirator.
 B is guilty of robbery and maybe as an accomplice in car theft.
 C is guilty of robbery but is not accomplice in car theft.
 D is guilty of car theft and is an accomplice in B’s robbery.
 They are all joined as co-conspirators.
B) State v. Canola
Facts: D and three others attempt to rob a jewelry store. In course of crime, owner and a cofelon are killed. D is charged with death of owner as well as co-felon.
Holding: charge for murder of co-felon dismissed
1) Under Johnson v. Youden, need intent as to the result of whole act
2) death of co-felon not part of original intent
3) to qualify under Redline, “killing must have been done by the D or by an accomplice
or confederate or by one acting in furtherance of the felonious undertaking.”
4) Concurrence: D would be charged with any death resulting from robbery except
death of a co-felon, which is justifiable homicide
Katz Hypo: Can Canola be guilty under Agency doctrine?
Katz says proximate cause not close enough for agency rule to apply
ATTEMPTS
Crime made up of a 6-stage process:
1) conception of idea for crime
2) evaluation of idea to determine whether one should proceed
3) formation of intention to go forward
4) preparation to commit the crime
5) commence commission of offense
6) completion of actions, achieving criminal goals
We do not punish person during 1-3.
At 3, mens rea is formed but no actus reus.
Crimes 4,5 are inchoate - imperfect or incomplete.
Two types of attempt:
 Complete/Incomplete
 Actor performs everything set out to do, but fails to achieve criminal goal.
 E.g., firing gun but missing victim
 Inchoate attempt
 Actor does some acts necessary to achieve criminal goal but desists/is
prevented from continuing before completion of the attempt
Notes on inchoate crimes in general:
 The earlier the police intervene to arrest for inchoate conduct, the greater the risk that
suspicious looking, but actually innocent, conduct will be punished
 A criminal attempt and the substantive offense are mutually exclusive (Merged).
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Assault is merely an attempted battery, therefore it’s tough to have attempted assault.
Some crimes are inchoate offenses in and of themselves. Burglary - intent to commit
a felony after breaking and entering is superfluous. The purpose is to prohibit
trespass.
Common law - attempt punished less severely than substantive offense.
MPC - attempt punished as severely as the attempted offense.
Subjectivism and Objectivism:
 These are 2 different perceptions of the proper role of social harms and culpability in
attempt laws.
 Most MPC and common law attempt doctrine is subjective - it looks into the eyes of
the actor.
 Subjectivists
 In determining guilt and calibrating punishment, criminal law in general
(and specifically attempt law) should focus on an actor’s subjective
intentions (mens rea) rather than his conduct (actus reus).
 The act is important only insofar as it confirms the actor’s guilty mind.
 Objectivists
 Conduct should not be punished unless its criminality is objectively
discernible at the time it occurs.
 Acts alone reveal criminality. Movie with sound off.
 It’s tougher to have intent law in an objectivist world unless that act truly
manifests criminality and cause social harm by unnerving the community.
 I put sugar in someone’s coffee. If I think it is arsenic but it’s really sugar,
subjectivists hold me for attempt. Objectvists do not - act of placing sugar
in coffee does not demonstrate criminality.
Why punish attempts?
 Utilitarian
 It seems ineffectual to deter attempts. All deterrent effect should,
normatively, arise out of the punishment for the substantive offense alone.
 But attempt punishment aims at those who believe that they will get away
with successful completion of the crime; if make attempt a crime, people
will be deterred somewhat
 Subjectively, anyone who attempts a crime is dangerous and should be
deterred.
 Inchoate offenses allow police to intervene before the crime is consummated
(although not so early that attempt is not proved. See mens rea below)
 in case unsuccessful, will get of scot free, want some extra deterrence
 if all interested in is deterrence, why not arrest all for first step n crime? 
if so, no cost in carrying out attempt further once early line crossed
 Retributivist
 There is culpability in attempt that needs to be punished. The criminal
effect was intended.
 Fortuity in consequence is the only difference between successful and failed
attempt.
 Attempters ruin the order ordained by the law. Punishment re-establishes
perceived public order.
 Late: don’t want to punish just for guilty mind
 Early: blameworthiness occurred before bad act undertaken
 insist on substantial step which corroborates D intention
Why parse between preparation and attempt?
 Allow credit for abandonment. Katz says bad argument.
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We do not worry about whether D would have gone through with the crime
later - we just worry about the acts and mental state at the time of arrest.
 Burden of proof addresses this concern because D has the right - and ability
- to argue that he was incapable of abandoning.
Ensure that intent exists. Katz says bad argument.
 Evidentiary concern about intent is addressed by the state’s burden of proof.
This is not really a concern. If D is arrested too early, the state will likely
lack the burden of proof.
Don’t punish thoughts - ensure there’s an actus reus. The real reason.
 We must remain objective to ensure that culpable acts are performed. We
cannot punish thoughts alone.
 Counterpoint: If you have bad intentions, then any act is good enough.
(Buying the matches).
Mens Rea

2 components of mens rea of attempt:
1) Intentionally commit the acts that constitute the actus reus of an attempt
i.e., she must intentionally perform the acts that bring her in proximity
to the commission of a substantive offense
2) Perform these acts with the specific intention of committing the
substantive crime.
Result crimes
 a person is not guilty of an attempt unless his actions in furtherance of the
prohibited result are committed with the specific purpose of causing the
result.
 MPC purpose - 5.01(1) see below
 If D performs an act evincing reckless disregard for human life but no one
dies, D is not guilty of attempted murder - D lacked specific intent to kill.
Luck gets you off. If someone dies, D is guilty of murder.
 If D intends to severely injure a person and the person survives the attack, D
is not guilty of attempted murder - D lacked intent to kill. If V dies, D is
guilty of murder because of reckless disregard for human life.
People v. Kraft
D shot at guy who ran him off the road. D shot at police when they caught up with him. D
charged with attempted murder. D claim didn’t intend to kill anyone; no mens rea.
Held: It was not proved that D shot with specific purpose of causing death.
1) Attempted murder is not ‘everything for murder except the death.’
2) Why such strict intent requirements?
 the intending party is more dangerous in terms of trying again than the
reckless or negligent party
Conduct crimes - crimes where actus reus defined in terms of harmful conduct, not injurious
results
 D possesses the specific intent to engage in conduct that, if performed, constitutes
the substantive offense.
Class Analysis of the Common Law Rule
1) SL statutes
 No need to require proof of mental state; sometimes held that proof of intent
is necessary to conviction for an attempt to commit a SL crime  D must
be shown to have acted with an intent to bring about the proscribed result.
 SL offense to sell contaminated drugs
 Without mens rea, all pharmacists attempt to sell adulterated drugs by being
pharmacists
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2) Reckless as to Result
 D drives very recklessly. He passes someone, with egregious recklessness.
Has he attempted manslaughter?
 This is just manslaughter minus death. See above
 If we hold D guilty of attempted manslaughter, how many is he
guilty of? Attempt is just a fragment of this offense.
Counterfactual ambiguity prevents D from being charged because
we do not know the penalty.
 if so, everyone who did something reckless would be an attempted
manslaughter.
3) Knowledge as to result
 the bomber who wants to kill the queen and plants a bomb in her coach.
Doesn’t want to kill the coachman but knows coachman’s death is probable.
Under MPC 5.01(1)(b) - D is guilty of attempted murder of Coachman
because he knows his act will cause that result.
 Under common law, D is not guilty of attempted murder.
 If I didn’t want coachman to die and he didn’t, I should not be
guilty of attempted murder. Attempt implies intention.
Anything less should not lead to attempt charge.
 Willful blindness - where knowledge is required for the substantive offense
and D willfully prevents himself from obtaining that knowledge, he can get
off. Willful blindness works under common law. Culpability tracks
knowledge.
MPC 5.01 Criminal Attempt
(1) Definition of attempt: A person is guilty of an attempt to commit a crime if, acting
with the kind of culpability otherwise required for commission of the crime, he:
(a) purposely engages in conduct which would constitute the crime if the
attendant circumstances were as he believes them to be; or
(b) when causing a particular result is a an element of the crime, does or omits
to do anything with the purpose of causing or with the belief (i.e.
knowledge) that it will cause such result without further conduct on his part;
or
(c) purposely does or omits to do anything which, under the circumstances as he
believes them to be, is an act or omission constituting a substantial step in
a course of conduct planned to culminate in his commission of the crime.
MPC 2.02(6) - Requirement of purpose satisfied if purpose is conditional
When a particular purpose is an element of an offense, the element is established although
such purpose if conditional, unless the condition negatives the harm or evil sought to
be prevented by the law defining the offense.
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for Coachman hypo, since bomber had knowledge that coachman would be
hurt, would be guilty of attempt
under common law, still need intent; knowledge not enough
 but if we’re willing to credit miraculous, hoped for result
(sharpshooter who miraculously kills target from far away),
shouldn’t we be willing to credit miraculous result this way
under MAD theory, remote possibility of attack. But if condition met, will
do something awful and unjustified.
Under MPC, immoral to set up this way
Actus Reus
 difficulty in discerning the line between preparation and attempt
 Subjectivist and Objectivist definitions differ.
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Subjectivists favor an actus reus test of an attempt that allows for early
attachment of guilt.
 Objectivist wait to attach guilt until he has caused some social harm, at least
in the form of societal apprehension of criminal activity.
 Subjectivists are too likely to convict based on mens rea alone.
 Tests - Standards for telling where preparation ends and attempt begins.
1) Last Proximate Act- The criminal attempt occurred when the person performed all of
the acts that she believed were necessary to commit the target offense.
 Underinclusive Problem- police stymied by the rule. Essentially, crime
must be committed before attempted.
 Overinclusive Problem - If stop too early, person can still change mind and
abandon whole escapade entirely.
 However, in the case of a bomb with a very long fuse, the “last proximate
act” test has been met but the “dangerous proximity” test is not.
2) Dangerous Proximity test - D is guilty of an attempt when his conduct is in dangerous
proximity to success, or when act is no near to the result that the danger of success is
very great..
 no clear point of proximity, but courts can consider:
 nearness of danger;
 greatness of harm;
 degree of apprehension felt
 Katz: Anything that is a last proximate act is also dangerous proximity,
except for a long fuse scenario.
a) Commonwealth v. Peaslee - Ct held person who arranged combustibles in a
house and solicited someone to start the fire guilty of attempted arson.
Despite the fact that D changed his mind and drove away when he was a ¼
mile away from destination.
b) People v. Rizzo - 4 armed men drove around looking for V, whom they
expected would be withdrawing a large sum of money from the bank. They
entered various buildings looking for V. Suspicious, 2 cops placed men
under surveillance. Suspects finally arrested after one of them entered
another building. V was not present where the arrest occurred. Ct
overturned conviction concluding that in the absence of a victim, the armed
suspects were not dangerously close to success.
c) Significance of test: The CB calls the dangerous proximity test the
“traditional (common law) approach.” It is flexible in comparison to similar
tests. On the other hand, the test offers little guidance to cops on the street.
Test: firm intent and some act to carry out intent  guilty
d) What if person is in habit of pulling gun on people and changing mind?
Where the dangerous proximity?
3) Unequivocal act test: Res Ipsa Loquitor
 Act does not constitute an attempt until it ceases to be equivocal
 Person’s conduct, standing alone, unambiguosly must manifest his criminal
intent
 Very objectivist - reserves criminal liability for those whose conduct
manifests criminality by causing social apprehension
 Buying box of matches to burn a haystack is too ambiguous to justify
conviction for attempted arson. But even lighting a match near the haystack
may just be to light a pipe.
 Problem: person must actually commit the crime in order to be
arrested.
DEFENSES:
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Abandonment (5.01(4)) - if desist from efforts to commit crime long after point that it crosses into
attempt and just shy of crime, will be off hook even if can get on attempt. However, abandonment
only applies if the O voluntarily and completely renounces criminal purpose.
 can’t get off if abandon for fear of getting caught  not voluntary
1) D abandons his effort to commit the crime or prevents it from being committed; and
2) D’s conduct manifests a complete and voluntary renunciation of his criminal
purpose
 voluntary abandonment requires repentance, not frustration
 HYPOS:
 D tries to commit a crime, realizes it’s too tough and stops.
 D is guilty
 D has sex with woman he thinks is underage, but is not.
 D is guilty. D purposely engaged in conduct that would be a crime
if things were how he thought they were. 5.01(1)(a)
 D has sex with woman he thinks is underage, but is not. He thinks he is
guilty of statutory rape and he repents.
 D cannot abandon a completed crime.
 Counterintuitive case: D beats the hell out of someone and, on the verge of
killing him, desists.
 5.01(4) - D voluntary denounces his criminal purpose, so he is not
guilty of attempted murder.
 D plans assassination, aims at target, and misses. With his best opportunity
now at hand, he abandons.
 D is not guilty of attempted murder. 1(c ) gets D off - he
voluntarily abandoned an attempt. He’s still guilty of other things.
 D starts to rape woman. She says she’s pregnant and he stops.
 If found it impossible to keep raping, he is still guilty.
 But if D had a change of heart (repents), he has abandoned.
 Successful abandonment does not effect the liability of an accomplice who
did not join in the abandonment.
Impossibility: 3 types of Defense of Impossibility
1) “Mixed” legal and factual impossibility (Hybrid)
 D set out to do things believing that this would be a crime. In fact, however,
because he misunderstands the surrounding circumstances, his conduct,
if completed, would not constitute a crime, but if the circumstances were
as he believes them to be, his intended conduct would constitute a crime.
 ACT ITSELF NOT ILLEGAL, BUT ATTENDANT CIRCUMSTANCE
BEYOND D’S CONTROL OR UNKOWN TO D CHANGES TO MAKE
ACT NOT ILLEGAL.
 Most courts today, often applying statutes based to some extent on the MPC
hold that a D in this situation has no defense.
 NOTE: If D’s version of the facts is believed, he cannot be convicted of
attempt because he lacked the mens rea required.
 People v. Jaffe - D bought what he thought was stolen property but which in
fact was not stolen. Court found him not guilty because the act he
contemplated was not illegal - he did not intend or care that the goods were
stolen, only that he received the goods. D made a mistake of fact but he got
off. OLD VIEW.
 People v. Dlugash - D fired a gun at someone he thought was dead. D still
liable. Mistake of fact not a defense.
 What was in D’s mind should be the standard for determining
his dangerousness to society and his resultant liability.
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It no defense that, under the attendant circumstances, the crime was
factually or legally impossible of commission.
Note case: State v. Smith - D had AIDS and spat and bit one of the guards
hoping the HIV would be transmitted. At trial, D brought evidence which
showed that it was medically impossible to transmit HIV in this manner. Ct
said: such evidence was irrelevant so long as the D himself had believed
it possible to infect and had intended to kill him.
BUT in U.S. v. Oviedo - (p.632) - D sells to undercover cop what he thinks
is heroin. But in actual fact, was procaine hydrochloride (not a controlled
substance). Ct: demand that in order for a D to be guilty of a criminal
attempt, the objective facts performed, without any reliance on the
accompanying mens rea, mark the D’s conduct as crminal in nature.
 i.e., can’t be convicted of an attempt unless did something wrong,
no matter what you thought. OLD VIEW?
2) Inherent - Voodoo Problem
 person who tries to kill by voodoo and sincerely believes something bad will
happen
 has already taken last act; D thinks has crossed line into attempt but hasn’t
 even if D thinks he has passed into attempt, may not be enough to
inculpate
3) “True” Legal Impossibility - D sets out to do things he believes would, if completed,
constitute a crime but which were not in fact made criminal by law. The person’s
only misunderstanding concerns the law. D mistakenly believes that it is a crime to
do what he sets out to do. THINKS DOING AN ILLEGAL ACT.
 dealing with someone who thinks doing something wrong but not
objectively wrong
 EX: D sets out on Nov 3 intending to shoot a deer that day. D believes that
killing a deer in Nov is illegal. In fact, it is a crime to shoot deer in Dec but
not Nov. No attempt because what D set out to do not a crime. D believes
this would be a crime but this mistake as to what the law is does not create
criminal liability.
4) Factual Impossibility - D sets out to do something (or cause a particular result) that
would, if accomplished, constitute a crime, but because of factors of which he is
unaware, there is no chance he will succeed in doing these things or causing the
result.
 impossibility when a person’s intended end constitutes a crime but she fails
to consummate the offense because of an attendant circumstance unknown
to her or beyond her control.
 Ex: a pickpocket putting his hand in the victim’s empty pocket or an
assailant shooting into an empty bed where the intended victim normally
sleeps.
 Katz: mistake of fact is no defense
Justification Defenses
Necessity: At common law, a person who is not an aggressor is justified in using force upon
another if he reasonably believes that such force is necessary to protect himself from imminent
use of unlawful force by the other person.
 Principle: the law ought to promote achievement of higher values at the expense of lesser
ones. Thus, the balancing nature of the defense in both common law and MPC
 MPC 3.02(1)(a) - harm avoided greater than that sought to be prevented
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Three problem areas in necessity:
1) Perjury (or euthanasia or needle exchange) - lie to save friend you think is innocent to save
him from death penalty.
 People v. Unger - D escapes from prison from fear or anal rape and other injury.
 Dudley and Stephens revisited - did they have a necessity defense?
 But can see that if taken too far, people’s subjective views of what the greater good is
will result in anarchy
 If everyone does his best to avoid unjust sentences, people will be justified in lying.
Juries can’t be made to rely on subjective truths.
 Evidence will become unreliable.  bad results will ultimately outweigh friend’s
singular, present interest in not being punished  utilitarian justification
2) German doctors - perform a few euthanasia’s to prevent the many
 on balance, prevented more than did, under MPC should be OK
 BUT same as 1st problems
3) Redistribution - hiking and friend injured, are you allowed to break into a cabin to get stuff to
save him?
 if let hiker off, what of the burglar who steals food to survive?
EXCEPTIONS to necessity defense 1) MPC 3.02(1)(b) - statutory exceptions
MPC 3.02(1)(c ) - no legislative purpose to exclude
2) MPC 3.02(2) - D’s level of liability determined on the basis of his culpability in
creating the danger.
 Justification afforded by this section is unavailable in defense against any
offense for which recklessness or negligence suffices to establish
culpability.
 Reckless actor only loses defense for offenses that require
recklessness or less. Otherwise, necessity works as a defense.
Losing the defense turns negligence and recklessness into intent.
Ex: Driver swerves to avoid hitting 5 but hits 1 instead. Afterward determined
that he didn’t have to kill anyone  should be guilty of manslaughter; loses
defense for manslaughter if caused the dangerous situation
3) Mistake exception - under MPC, any mistake (reasonable or unreasonable) gets you
off in a subjective standard
Self-Defense MPC 3.05
1) Imminence
 at common law, a person who is not an aggressor is justified in using force upon
another only if he reasonably believes that such force is necessary to protect
himself from imminent use of unlawful force by the other person.
 However, deadly force is unjustified unless the actor reasonably believes that its
use is necessary to prevent imminent and unlawful use of deadly force by the
aggressor.
a) Ongoing attack: State v. Norman - Battered wife syndrome
D killed husband who was not doing anything to her when she killed him.
Held: D not justified because no imminence.
 How long is necessary for imminence? Should ongoing attack
count as imminence?
 D can argue that it was nearly certain that she would be beaten after
H was awakened.
 under MPC 3.04(1) - uses common law imminency
requirement. Under common law, wife may be justified
here
 is imminence and probability same thing?
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what if person tells you they’ll kill you once some random event occurs.
Not probable, but could still get self-defense
if husband hears phone message, will probably kill wife: can probably kill
in name of self-defense but can’t get for attempt - non-sensical
2) Retreat - If can avoid killing with retreat, should take retreat
 but nearly impossible to draw line where person should be allowed to do
what want and self-defense
 handled inconsistently, sometimes duty to retreat and others not
 MPC 3.04(2)(b)(ii) - person may not use deadly force if can retreat
 exceptions: not necessary to retreat from home or place of work
- Majority rule - no strict requirement to retreat
3) Provocation - what if person contrives situation so he can use self-defense  lose
self-defense
 EX: Bronson in Deathwish, wife taunts husband to where he gets
enraged and kills her  Pressman and Greek say get defense, but my
notes say you don’t
 MPC 3.04(2)(b)(I) - no deadly force if provoke use of force against self
Insanity
M’Naughten - Tories are out o get me, so I killed one
Crenshaw - Wife was adulterous and it is my religion to kill her.
Cameron - Mother was involved in sorcery, so I had to kill her.
Reasons we acquit the insane - M’Naughten test:
 Misconduct was product of the disease.
 Problem - you can always say that anyone who murders has a disease.
Underlying notion is that there was no choice involved.
 Problem: Just because a disease caused a harm does not mean that D had no
voluntary choices or control. We are deluded if we think disease erodes free
choice.
 Irresistible impulse could not be disobeyed by D.
 M, Cr, and Ca had worngful information and impulses. However, they acted
just like regular actors. They chose.
 They can’t tell right from wrong.
 They all knew what they did was wrong
 Legal knowledge/moral knowledge
 MPC - inability to tell nature and quality of actions
 Ca - mens rea  mistake of fact
Defense of Legality - state not allowed to punish unless there is a law that says act is illegal
Keeler v. Superior Court - Guy kicks pregnant ex-wife and causes baby to be still-born.
Murder statute only covers “human beings.”
Held:
1) Since fetus not a person, no crime.
2) no common law crimes in CA.
3) No ex post facto laws - judicial determination without statutory authority of what is a
crime
4) DISSENT: in 1860, brain dead baby would be considered dead and therefore under
the court’s rationale, could be stabbed without crime being committed. However,
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that same baby today could be revived, so therefore, stabbing the brain dead baby
could be considered murder today.
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