Criminal Law
Justifications of Punishment ................................................................................................................................................................ 4
I.
Case Study ............................................................................................................................................................................. 4
A. Regina v. Dudley & Stephens ........................................................................................................................................... 4
II. Theories of Morality .............................................................................................................................................................. 4
A. Utilitarianism (Deterrence): .............................................................................................................................................. 4
B. Deontological (Retribution): ............................................................................................................................................. 5
III.
Theories of Punishment .................................................................................................................................................... 5
A. Deterrence: ........................................................................................................................................................................ 5
B. Retribution ........................................................................................................................................................................ 5
C. Mixed Theory: .................................................................................................................................................................. 6
D. Incapacitation: ................................................................................................................................................................... 6
E.
Rehabilitation: ................................................................................................................................................................... 6
Actus Reus ........................................................................................................................................................................................... 7
I.
General Principles .................................................................................................................................................................. 7
A. Definition .......................................................................................................................................................................... 7
B. Elements............................................................................................................................................................................ 7
II. Voluntary Act Requirement ................................................................................................................................................... 7
A. Model Penal Code § 2.01: Requirement of Voluntary Act; Omission as Basis of Liability ............................................. 7
B. General Principles ............................................................................................................................................................. 7
C. Rationale ........................................................................................................................................................................... 7
D. Issues with the Voluntary Act Requirement ..................................................................................................................... 7
Mens Rea ........................................................................................................................................................................................... 13
I.
General Principles ................................................................................................................................................................ 13
A. Rule: ................................................................................................................................................................................ 13
B. Meanings:........................................................................................................................................................................ 13
C. Rationale: ........................................................................................................................................................................ 13
II. Four Mental States of the Model Penal Code ...................................................................................................................... 13
A. Model Penal Code § 2.02: General Requirements of Culpability ................................................................................... 13
B. Purposely: ....................................................................................................................................................................... 13
C. Knowingly: ..................................................................................................................................................................... 14
D. Recklessly: ...................................................................................................................................................................... 15
E.
Negligently: .................................................................................................................................................................... 16
III.
Canons of Statutory Construction ................................................................................................................................... 16
A. Model Penal Code: .......................................................................................................................................................... 16
B. General Rules: ................................................................................................................................................................. 16
C. Burglary Example: .......................................................................................................................................................... 17
IV.
Mistake of Fact ............................................................................................................................................................... 17
A. Model Penal Code §2.04: Ignorance or Mistake ............................................................................................................. 17
B. Moral Wrong Approach (Prince Majority) ..................................................................................................................... 17
C. Legal-Wrong Approach (Prince Dissent) ........................................................................................................................ 17
D. MPC § 2.04(1): Mens Rea Negation Approach .............................................................................................................. 17
E.
MPC § 2.04(2): Lesser-Crime Approach ........................................................................................................................ 17
F.
Mistake of Fact About Age ............................................................................................................................................. 18
G. Mistake of Fact as to Non-Material Elements ................................................................................................................. 18
V. Strict Liability ...................................................................................................................................................................... 18
A. General Principle: ........................................................................................................................................................... 18
B. Elements Making Strict Liability Appropriate: ............................................................................................................... 19
C. Justifications For & Against ........................................................................................................................................... 19
D. Defenses to Strict Liability: Involuntariness ................................................................................................................... 19
VI.
Ignorance of Law ............................................................................................................................................................ 19
A. Model Penal Code ........................................................................................................................................................... 19
B. General Principles ........................................................................................................................................................... 20
C. Exceptions: Where Ignorance of Law is a Defense ....................................................................................................... 20
D. Difficult Hypotheticals .................................................................................................................................................... 22
Homicide ............................................................................................................................................................................................ 22
I.
Homicide Schemes: MPC & Pennsylvania Statute .............................................................................................................. 22
1
A.
B.
C.
Model Penal Code: No Degrees, Just Grades of Felony ................................................................................................. 22
Pennsylvania Homicide Statute: Degrees of Homicide .................................................................................................. 23
Issues with Common Law Requirement of Premeditation: ............................................................................................. 23
II. Provocation .......................................................................................................................................................................... 23
A. Rules ............................................................................................................................................................................... 23
B. Issues with the Provocation Mitigation Defense ............................................................................................................. 23
III.
Felony Murder Rule ........................................................................................................................................................ 25
A. Common Law Rule ......................................................................................................................................................... 25
B. Model Penal Code ........................................................................................................................................................... 25
C. Rationale ......................................................................................................................................................................... 25
D. Inherently Dangerous Limitation .................................................................................................................................... 25
E.
Merger Doctrine Limitation ............................................................................................................................................ 26
Causation............................................................................................................................................................................................ 27
I.
Cause-in-Fact ....................................................................................................................................................................... 27
A. General Principles ........................................................................................................................................................... 27
B. Counterfactual Ambiguity. .............................................................................................................................................. 27
C. Preemptive Causation ..................................................................................................................................................... 27
D. Overdetermination .......................................................................................................................................................... 27
II. Proximate Cause .................................................................................................................................................................. 27
A. Model Penal Code ........................................................................................................................................................... 27
B. Approaches: MPC and Common Law ............................................................................................................................ 28
C. Rationales........................................................................................................................................................................ 28
D. Issues with Proximate Casuation .................................................................................................................................... 28
E.
Exceptions: Liability Despite No Foreseeability ............................................................................................................ 29
F.
Exceptions: No Liability Despite Foreseeability (Defenses) .......................................................................................... 30
Complicity.......................................................................................................................................................................................... 31
I.
Mens Rea ............................................................................................................................................................................. 31
A. Model Penal Code ........................................................................................................................................................... 31
B. Mens Rea Requirement: Purpose / Specific Intent .......................................................................................................... 31
C. Departures From Strict Purpose Requirement ................................................................................................................ 32
II. Actus Reus ........................................................................................................................................................................... 33
A. Model Penal Code ........................................................................................................................................................... 33
B. Rule: Physical conduct, psychological influence (insights, solicitation, encouragement), or assistance by omission
when there is a duty to intervene all satisfy the actus reus requirement even when they do not cause in fact or proximately
cause the crime. ........................................................................................................................................................................ 33
C. Overdetermination: ......................................................................................................................................................... 33
III.
Relationship of Liabilities of Parties ............................................................................................................................... 33
A. Model Penal Code: General Principle ............................................................................................................................. 33
B. Innocent Instrumentality Rule: ........................................................................................................................................ 34
C. Accomplice Incapacity:................................................................................................................................................... 34
D. Accomplice Victim Non-Liability & Accomplices Incident to Crime: .......................................................................... 34
E.
Missing or Immunized Principal: .................................................................................................................................... 34
F.
Feigning Principal: .......................................................................................................................................................... 35
IV.
Hypothetical Problems .................................................................................................................................................... 35
A. Regina v. Richards: ......................................................................................................................................................... 35
B. E.g. Foreman on construction site ordered his subordinates to do something without the proper, required safety
precaution. As a result, an explosion occurs and the foreman is injured, while others die. Is foreman liable for manslaughter?
35
Conspiracy ......................................................................................................................................................................................... 35
I.
Elements .............................................................................................................................................................................. 35
A. Actus Reus ...................................................................................................................................................................... 35
B. Mens Rea ........................................................................................................................................................................ 35
II. Model Penal Code................................................................................................................................................................ 35
A. MPC § 5.03: .................................................................................................................................................................... 35
B. Rules: .............................................................................................................................................................................. 36
III.
Pinkerton Doctrine .......................................................................................................................................................... 36
A. Rule ................................................................................................................................................................................. 36
IV.
Purposes and Problems of Conspiracy ............................................................................................................................ 36
A. Purposes .......................................................................................................................................................................... 36
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B. Issue: Constraining Foreseeability .................................................................................................................................. 36
Attempts ............................................................................................................................................................................................. 37
I.
Model Penal Code § 5.01..................................................................................................................................................... 37
II. Mens Rea ............................................................................................................................................................................. 37
A. Specific Intent Requirement ............................................................................................................................................ 37
III.
Actus Reus ...................................................................................................................................................................... 37
A. Common Law Tests: ....................................................................................................................................................... 37
B. Model Penal Code § 5.01(1): .......................................................................................................................................... 38
C. Theoretical Arguments for Earlier or Later Attempt Liability ........................................................................................ 38
D. Solicitation: ..................................................................................................................................................................... 38
IV.
Defenses .......................................................................................................................................................................... 38
A. Abandonment .................................................................................................................................................................. 38
B. Impossibility: .................................................................................................................................................................. 39
C. Impossibility and Mistake of Law................................................................................................................................... 40
Defenses ............................................................................................................................................................................................. 41
I.
Self-Defense ........................................................................................................................................................................ 41
A. Imminence ...................................................................................................................................................................... 41
B. Duty to Retreat ................................................................................................................................................................ 41
C. Provocation (Contrived Self-Defense) ............................................................................................................................ 42
D. Unknowing Self-Defense ................................................................................................................................................ 42
E.
Unlawful Force ............................................................................................................................................................... 42
II. Defense of Property ............................................................................................................................................................. 43
A. Model Penal Code: Generally on Defense of Property ................................................................................................... 43
B. Use of Devices to Protect Property ................................................................................................................................. 43
III.
Necessity ......................................................................................................................................................................... 44
A. Choice of Evils (Balancing) ............................................................................................................................................ 44
B. Legislative Preemption Exception .................................................................................................................................. 45
C. Responsibility for Creating Choice of Evils ................................................................................................................... 45
D. Contrived Necessity ........................................................................................................................................................ 45
IV.
Duress ............................................................................................................................................................................. 46
A. General Principles ........................................................................................................................................................... 46
B. Standard of Reasonableness ............................................................................................................................................ 46
C. Exception: Responsibility for Creating Duress ............................................................................................................... 46
V. Involuntary Intoxication ...................................................................................................................................................... 47
A. Model Penal Code ........................................................................................................................................................... 47
B. Common Law.................................................................................................................................................................. 47
VI.
Insanity............................................................................................................................................................................ 47
A. General Principles ........................................................................................................................................................... 47
B. Insanity During Commission .......................................................................................................................................... 47
C. Competency for Trial and Punishment ........................................................................................................................... 48
Rape ................................................................................................................................................................................................... 48
I.
Force .................................................................................................................................................................................... 48
A. Rules ............................................................................................................................................................................... 48
II. Issues With Consent ............................................................................................................................................................ 48
A. Communication ............................................................................................................................................................... 48
B. Mental State of Victim .................................................................................................................................................... 49
C. Threats or Impairments of Consent ................................................................................................................................. 49
3
Justifications of Punishment
I. Case Study
A. Regina v. Dudley & Stephens
1. Facts: Ship lost at sea with little food. D and S charged with murder after they killed and ate a sick crewmember, Parker,
who had accidentally thrown food overboard. While D carried out the killing and S assented, another crewmember, B
objected but ate after the killing occurred. All three survived by eating Parker.
2. Holding: The homicide constituted murder because necessity is not defense. Both D and S were sentenced to death, but
the Crown commuted the sentence.
3. Issues: Is killing under the circumstances murder, or does a necessity defense apply to exonerate?
a) Majority Arguments & Responses:
(1) Necessity: Men could have been picked up next day or never at all, both of which would have rendered
it a meaningless killing.
(a) But: Strange logic that the court itself is not convinced by as demonstrated by its
extended discussion of why necessity is not a defense to murder.
(2) Self-Defense: Defendant cannot claim self-defense because danger was not imminent enough and the
victim was not a threatening assailant.
(a) But: Victim did in a way endanger the killers’ lives by ridding them of the food that
could have potentially avoided the necessity.
(3) Comparable Crimes: Necessity cannot be a defense to murder if a thief is not permitted to steal out of
starvation. It defies logic to say that someone could justifiably murder for the same purpose.
(a) Self-preservation may not be a priority. Rather, there may be a higher duty to sacrifice
oneself (e.g. Christ, soldier, etc.)
(b) But: Notion that one may have to sacrifice their own life for the greater good does not
apply when all may have died without the killing.
(4) Net Savings: If two then killed one, and one killed the other, in the end there would no net saving of
lives because three would have died to save one.
(a) But: Flawed logic because there was a net saving of lives. Three would have died, rather
than four.
(5) Decision-Making: There is no appropriate way to determine who the proper individual to be sacrificed
is.
(a) Potential for individuals who are to profit from the killing to determine whose life is least
worthy of saving.
(6) Ex Ante Contractual Agreement: The custom of the sea was accepted by those who got onto the boat
and thereby accepted possibility of sacrificing themselves in an emergency.
(a) But: Fails for the same reason the “kidney club” would. An act of this nature, invasion of
the body, requires concurrent consent since at the moment agreed-upon sacrifice is to
take place, individual chosen will renege.
b) More Potent Reply: The logical result of allowing defendants to kill would be to allow the same in any case
where one person could save several others by dying (e.g. save five people dying from organ failure by
killing the one who person has all of those organs). There is, though, something intuitively discomforting
with the possibility of such a strict utilitarian calculation.
II. Theories of Morality
A. Utilitarianism (Deterrence):
1. Goal: Net Saving of Lives
a) Pain inflicted by punishment is justifiable if, but only if, it is expected to result in a reduction in the pain of
crime that would otherwise occur.
2. There IS a necessity defense.
a) Reduction in aggregate harm justifies the intentional homicide.
3. Consequentalist: Do not give credence to the act/omission distinction because the consequences are identical regardless
of the nature of one’s involvement.
4. Social Contract: Since we would all agree ex ante to a mechanism that would lead to net saving of lives out of pure selfinterest, putting those intuitions to work in situation is correct.
a) Human beings generally act hedonistically and rationally by responding to a calculation of perceived risks
and benefits. That intuition then should track our morality and punishment.
(1) Examples:
(a) Dudley and Stephens: One person’s life should be taken so that three may survive.
4
(b) Trolley: If there are five people in the trolley’s way, but only one would in hit if driver
turned, then the driver should turn it to save more lives.
B. Deontological (Retribution):
1. Goal: Not doing wrong so as to preserve society’s moral code, even when doing so leads to more lives being lost.
2. There is NO necessity defense.
a) It is unjustifiable to kill an innocent person, even to save a larger number of lives since it offends our moral
imperative.
3. No Social Contract: Despite individual willingness to enter contract ex ante in hopes of being in favored position,
enforcement is immoral because most people would renege upon finding themselves disfavored and up for sacrifice.
4. Process-Oriented, Non-Consequentalist: Act/omission distinction is meaningful because directly participating in
bringing about harm is more wrongful than passively permitting it to happen.
a) Examples:
(1) Dudley & Stephens: Both acted immorally by taking an innocent human life, even if they did so to save
themselves.
(2) Transplants: It is fundamentally wrong for surgeon to harvest rgans of one healthy person in order to
save five critically ill patients.
GOAL
SOCIAL CONTRACT
ACT/OMISSION
PUNISHMENT THEORY
III.
Deontological
Preserve Morality
Unenforceable
Meaningful Distinction
Retribution
Utilitarian
Save Lives
Enforceable
Not Meaningful Distinction
Deterrence
Theories of Punishment
A. Deterrence:
1. Forward-looking theory that justifies punishment based on its useful purposes.
2. Types of Deterrence:
a) General Deterrence: D is punished to convince general community to forego crime.
(1) Punishment can also have moralizing effects by showing society’s disapproval of an act and thereby
create moral inhibitions on the part of criminals, which my stimulate law-abiding conduct (Adenaes).
b) Specific/Individual Deterrence: D is punished to deter his own future misconduct.
3. Rationale (Bentham): Man calculates whether the perceived potential pain (punishment) will outweigh the expected
potential pleasure (criminal rewards). If punishment is greater than pleasure, then rational actor will not commit crime.
4. Criticism:
a) Disproportionate or Ineffective Punishment:
(1) If deterrence was the only goal, punishment would be disproportionately harsher than the harm caused
by crime, which conflicts with our intuitions that punishment should track culpability.
(2) Since community may not learn of punishment, deterrence may only be effective as to the particular
wrongdoer not others.
b) Incorrect Assumption: Deterrence rests upon a presumption that criminals are rational actors capable of
weighing costs and benefits, which may not be the case (e.g. crimes of passion).
(1) But: Rationality may not be required because even animals respond to rewards and punishment.
c) Tort liability could replace criminal sanctions if the financial penalties were severe enough to deter
misconduct.
(1) But: Ineffective deterrent because most criminals are insolvent and the rich could afford to pay.
(2) But: There would essentially be nobody to prosecute victimless crimes (e.g. prostitution, drug sales,
etc.)
(3) But: There would be no prevention from incapacitation such that career criminals would continue to
commit crimes if they could afford to pay.
B. Retribution
1. Backward looking theory that justifies punishment when it is deserved (“just deserts”).
2. Rationale: Regardless of the effect punishment has on future conduct, criminals deserve punishment that is proportional
to their moral blameworthiness and facilitates restoration of moral order.
a) Retributivists emphasize that humans generally possess free will or free choice and, therefore, can be
blamed when they choose to violate societal code.
5
b) Moral desert is sufficient, not just necessary condition for punishment, particularly because it tracks our
intuitions. Even if we were sure a rapist would rape again, we still think he deserves to be punished.
3. Three Types of Retribution:
a) Assaultive/Public Vengeance/Societal Retaliation: It is morally right to hate criminals and to hurt them back
for hurting us.
b) Protective Retribution: Punishment is a means of securing a moral balance in society.
c) Victim Vindication: Punishment reaffirms victim’s worth as a human being in the face of criminal’s
devaluation of it.
4. Rebuttal to Utilitarian Theory: Pure deterrence-based theory of punishment may lead to punishment of innocent
individuals, which offends our sense of justice.
5. Criticism:
a) Punishment may be more harsh than needed according to deterrence, when we know that particular offender
will never commit another crime again.
b) Difficult to identify exactly what punishment a particular offender “deserves,” particularly in less extreme
cases such as robbery (as opposed to murder).
c) There is no effective bright line standard of punishment; however, may be able to use punishments in
extreme cases in order to find proper punishment in more difficult cases.
Law: Life Imprisonment for Drunk
Deterrence / Utilitarian
Retribution / Deontological
Driving Even Without Accident.
Justified?
Yes
No
Rationales
- Net Saving: It is permissible to
- Just Deserts: It is impermissible to
sacrifice one through severe
sacrifice a life and impose
punishment to save greater number of disproportionate punishment regardless
lives.
of its effect on future conduct.
- Contract: Since we would agree
ahead of time to such a law to lessen
chance of being victim, punishment is
permissible.
- Contract: Unenforceable regardless of
agreement because nobody would
agree when they are the offender.
C. Mixed Theory:
1. Theory of punishment that requires both deterrent and retributivist goals in order for it to be justifiable.
a) E.g. Hart Theory: The general aim of the criminal law is to deter unwanted behavior, but retributive
concepts of just deserts should be applied in determining whether and how much to punish.
2. Consequences: Mixed theory generally leads to a more lenient system of punishment because frequently only one goal
is served, which, according to mixed theory, would require an offender be let go.
D. Incapacitation:
1. Theory of punishment that uses imprisonment as a means by which to isolate offenders from the rest of society and
render them incapable of committing more crime.
2. Criticism: Incorrect to assume that by incarcerating offenders, there will be drastic reduction in crime because crime
results from opportunity not number of offenders in community.
a) Economists: Criminal opportunities will be filled because majority of offenders are professional criminals
(e.g. by removing drug dealers from streets, more individuals will resume their role).
b) Not even relevant to crimes of passion because those crimes are not likely to be recommitted.
E. Rehabilitation:
1. Theory of punishment that uses the correctional system to reform the wrongdoer rather than secure compliance through
fear or bad taste of punishment.
2. Two Types (Moore):
a) Make the criminal safe to return to the street.
b) Make the criminal able to lead a successful life (Paternalistic).
(1) Inappropriate because it allocates scarce resources to less deserving people
(2) Objectionable because undeserved for people capable of rational decision-making (unlike mentally ill,
or children)
(3) Sentences may actually do more good for the offender than for society
6
3. Criticism: Weakness of rehabilitation as theory of punishment is demonstrated by fact that even a super-effective means
of rehabilitation like pill that would make offender never commit crime again is insufficient.
a) Deterrence: Only minimal specific deterrence, because threat of pill would not stop others from committing
crime.
b) Retribution: Truly effective rehabilitation does not account for moral deserts.
Actus Reus
I. General Principles
A. Definition
1. The actus reus is the conduct element of each crime, which together with a culpable mindstate make up the two
elements of a crime.
B. Elements
1. Voluntary Act
2. Causation (link between act and result)
3. Social Harm.
II. Voluntary Act Requirement
A. Model Penal Code § 2.01: Requirement of Voluntary Act; Omission as Basis of Liability
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:
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.
B. General Principles
1. “Act”:
a) Every crime must involve some type of act, which is defined as bodily movement that can be voluntarily or
involuntarily performed.
b) An act does not encompass internal mental processes of thinking about, or of developing an intention to do,
a physical act.
2. “Voluntary”:
a) Voluntariness connotes use of the human mind; whereas an involuntary act involves only the use of the
human brain.
b) Criminal responsibility should only attach to the conduct for which we are responsible, rather than over
which we have no control.
c) Habitual act voluntary, unlike acts committed while under hypnosis, due to reflect, or while unconscious.
C. Rationale
1. Utilitarian (Deterrence):
a) The law simply cannot deter involuntary movement.
b) Criticism / Insufficiency: Utilitarian would not exclude involuntary actors from punishment necessarily.
(1) The threat of criminal sanction can still motivate adjustment in risky behavior (e.g. to take medication
to avoid seizure).
(2) Even if the threat of criminal sanction cannot deter, its use is one way to segregate or make less
dangerous involuntary actors; thereby, increasing the overall social good.
2. Retributivist: More closely aligned with the voluntary act requirement.
a) Since the stigma and pain of punishment should only attach to those who deserve it, it is inappropriate to
punish individuals who through no free choice committed wrongdoing.
D. Issues with the Voluntary Act Requirement
1. Consciousness: What level of mental awareness is required for conduct to be voluntary?
7
a) A voluntary act involves the use of the human mind causing the bodily action. Individuals are not
responsible for bodily movements, unless those movement are a product of effort or determination.
(1) Mind (voluntary), not just brain (involuntary).
(2) MPC includes “movements not a product of effort or determination” suggesting that if an outside cause
is responsible then an act is involuntary, but there is always an outside cause (e.g. shoplifter who says
his parents spoiled him).
(3) An ac is involuntary when either one is forced to do something against his will or is not consciously
aware of his act, but it does not include acts where D could not control a mere impulse, habitual acts, or
situations where D knows he is prone to enter a state in which he cannot control his actions but doesn’t
prevent that state.
b) Involuntariness may be a defense to a criminal charge.
c) People v. Newton:
(1) Facts: Defendant involved in altercation with police officer was shot in stomach and subsequently shot
the officer. Defendant later drove to hospital but claimed he was unconscious when he shot the officer
as he did not recall the event.
(2) Holding: Unconsciousness is a legitimate defense where it is not self-induced. It is a legitimate
question for the jury whether or not an the defendant committed while unconscious render him not
guilty.
(3) Complication: Why do we acquit an unconscious person when the physical act may be identical to a
real murder or where his driving to a hospital suggests cognizance?
(a) Presumably, because we cannot hold someone responsible when they are not in control
of their actions, regardless of how those actions appear a product of awareness.
(b) But, a deterrence perspective would argue for punishment for someone that resembles a
sleepwalker because it would incentivize future actors to take preventive measures to
avoid harms (e.g. somnambulist will strap himself down when he sleeps).
2. Time-Framing: At what point in the chain of events must the voluntary act occur to satisfy the requirement?
a) Kelman: There is always a voluntary act within the chain of events, so that defining the time frame broadly
enough allows us to assert voluntariness in nearly any case (i.e. the voluntary act requirement is arbitrary
and could virtually be satisfied in nearly every case).
b) Moore (response to Kelman): Time-framing is not an issue. The particular act that the statute prohibits must
be performed voluntarily (i.e. if the verb prohibited is involuntarily done).
(1) Moore’s analysis reconciles the seemingly at-odds holdings in Martin and Decina.
c) Martin v. State:
(1) Facts: Defendant got drunk at home, police arrested him for unrelated matter, and took him outside
involuntarily. He then used loud and profane language. He was charged with violating a law that
prohibited “appearing in public drunk and manifesting indecent conduct.”
(2) Holding: Since defendant did not appear in public voluntarily, he is not guilty. Court reads a
voluntariness requirement in to the statte.
(3) Time-Framing Complication:
(a) Narrow Framing: Look only to his actual appearance in public, which is what the statute
expressly prohibits; therefore, since he did not “appear in public” voluntarily, he is not
guilty.
(i) Focus on the relevant conduct that actually and proximately caused the social
harm of the offense charged.
(ii) Moore would agree because the appearance must have been voluntary without
which voluntariness is lacking.
(b) Broad Framing: Look back to earlier events in chain of events and find that he became
drunk voluntarily; therefore, he satisfies the voluntary act requirement.
d) People v. Decina:
(1) Facts: Man with a seizure disorder drives, has a seizure, and kills four children with his car. The statute
under which he was charged prohibited reckless operation of a motor vehicle that leads to death.
(2) Holding: Driving with knowledge of disorder was voluntary act prohibited, even if the actual seizure
was not; therefore, requirement satisfied.
(3) Time-Framing Complication:
(a) Narrow Framing: Conduct at the instant car struck victim did not include voluntary act;
therefore, requirement was not satisfied.
(b) Broad Framing: Voluntary acts of entering the care, turning it on, and driving satisfy the
requirement.
8
(i) Moore: Although the seizure itself was not voluntary, the statute prohibits
operating a vehicle recklessly. Since he operated his car voluntarily with
knowledge that a seizure may occur, the voluntary act requirement is satisfied.
(ii) Under this analysis, epileptic would also be convicted if accident killed
someone without him having had a seizure because doing so with condition is
reckless.
3. Multiple Act Requirement: If more than one action is required by a statute, do all or only one need to be done
voluntarily in order for the requirement to be satisfied?
a) Argument for Only Requiring One Act Be Voluntary: As long as one has control over one of the action,
then he has control over the entire compound chain of events (i.e. he is able to stop commission of the
crime).
(1) Powell Majority: Appearing in public drunk satisfies the voluntary act requirement because it is not an
expression of an involuntary compulsion to drink.
(2) Martin Prosecution: Use of loud and profane language was voluntary; therefore, appearance in public
need not be voluntary.
b) Argument for Requiring All Prohibited Acts Be Voluntary: If any necessary element of a crime is done
involuntarily, then the crime as a whole was not committed voluntarily (i.e. any taint of involuntariness
suggests lack of responsibility by actor).
(1) Powell Dissent: Both acts must be voluntary; since getting drunk was involuntary due to defendant’s
addition, the appearance in public was not sufficient to satisfy the requirement.
(2) Martin Defense: Appearance in public and profane conduct both must have been done voluntarily.
4. Status / Addiction Crimes: Whether and to what extent conduct that is the product of one’s addiction be criminalized?
a) Rule: It is unconstitutional to criminalize a status (addiction, as opposed to act of drug abuse) because doing
so violates prohibition of cruel and unusual punishment. However, voluntary conduct resulting from
addiction can be punished.
b) A state may not dispense with the actus reus requirement. Government may not punish a person for thoughts
alone or mere propensity to commit crime; rather some conduct (unless omission exception applies) is
constitutionally required.
c) Robinson v. California:
(1) Facts: Heroin addict was arrested after police found evidence of use. California statute made drug
addiction a crime.
(2) Rule: Punishment without any voluntary act is cruel and unusual punishment.
(3) Holding: Criminalizing the status of drug addiction is cruel and unusual, even though criminalizing the
actual taking of drugs would be permissible.
(a) Analogy: Statute essentially punishes an individual for an illness, which can be
contracted innocently or involuntarily.
(b) There is no identifiable act; therefore, imprisoning D would be punishing him for failing
to get treatment, which is an omission only, not an act (i.e. cannot punish a desire/mental
state).
(4) Complications:
(a) Ways to Invalidate the Statute:
(i) Voluntary act is constitutionally mandated.
(ii) It is unconstitutional to criminalize any status.
(iii) It is unconstitutional to criminalize a status that either cannot be changed or
would be very difficult to overcome.
(b) Ways to Uphold the Statute:
(i) Voluntary act requirement is contained in a separate statute, which would permit
conviction in cases of involuntary addictions (e.g. by birth).
d) Powell v. Texas:
(1) Facts: Chronic alcoholic was arrested and charged under a statute prohibiting public drunkenness. He
argued that his alcoholism prevented him from being able to avoid appearing in public drunk (lacked
voluntariness).
(2) Holding: Guilty because although alcoholism is a status that cannot be prohibited, the act of appearing
in public after getting drunk is not tainted so much by addiction as to render it involuntary.
(a) Chronic alcoholics in general do not suffer from such an irresistible compulsion that they
are unable to stay out of public when drunk.
(3) Rule: The state can punish for conduct resulting from illness or addiction.
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(4) Dissent: Individuals cannot be punished for exhibiting a characteristic that is part of the typical pattern
of an illness because such acts are involuntary (i.e. “punishing an addict for using drugs convicts for
addiction under a different name”).
e) E.g. Health conscious state passes law imposing weight limits on people. Statute does not mention any
particular act, just the fact that one is overweight qualifies them for prosecution.
(1) Issue: Is being overweight a voluntary act? Does the statute represent cruel and unusual punishment by
criminalizing status?
(2) Implications of Martin and Newton: Martin shows us that the statute can be interpreted in a passive or
active way; may not just be “being overweight” but rather “causing oneself to be overweight.”
(3) Implications of Robinson and Powell: Robinson suggests that punishment for obesity is
unconstitutional. But, Powell suggests that people are engaging in conscious acts causing them to gain
weight.
(a) Unlike Powell though there is no added requirement of an act, like appearance in public.
(b) But may be no difference between addiction to food and addiction to alcohol.
5. Act/Omission Distinction: Whether an individual can be held liable for failing to act when the failure results in the
same result prohibited by statute?
a) MPC § 2.01(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 (e.g. failure to
obey to go to war, failure to pay taxes, Good Samaritan statutes); or
(b) A duty to perform the omitted act is otherwise imposed by law
b) Rule: There can be no liability for omissions, unless a legal duty is owed or the statute provides for liability
(i.e. Subject to a few limited exceptions, a person has no criminal law duty to act to prevent harm to another,
even if the person may loser her life in absence of assistance).
c) Pro and Con Justifications:
No Omission Liability
Omission Liability
Utilitarian
Law should not disincentivize coming
The cost to society overall is greater
to the rescue. Liability may drive
from non-intervention than the cost to
people to avoid situations in which
the individual of having to intervene.
they could have helped.
Retributivist
Not intervening does not leave the
Not intervening leaves the world worse
world worse off; therefore, omissions
off compared to what it would have
(Comparative Judgments)
are not blameworthy.
been had intervention occurred;
therefore, omissions are blameworthy.
d) Legal Duties that Create Liability for Omissions (Exceptions to No Duty to Act)
(1) Collateral Statutory Duty:
(a) Rule: If a statute expressly provides for a duty, failing to honor it may impose criminal
liability for unrelated harm.
(b) Rationale: Statute provides rights to the victim and violation of the statutory duty is akin
to taking those rights away.
(c) Paradigmatic Case: Statute requiring 911 call if one witnesses a car accident. If witness
does not call and someone dies as a result, he may be liable for the death.
(i) Note: This is not the intent of the statute; therefore, courts often impose the
lesser penalty prescribed by the statute instead of using the statute as a source
for liability for greater crime.
(ii) E.g. Jones Case: Child has infectious disease and landlord had obligation to
report infectious diseases as a matter of pubic health. She doesn’t report it and
the child dies. Should there by liability for death?
(a) Legislative Intent: Not to permit spread of diseases to others.
(b) Justification for Liability: Say purpose was to help people with
diseases. If there is knowledge that someone is sick, then must help
the baby get quickest treatment possible. Despite the statute not
intending to provide baby benefit, baby would have had rights had
statute been followed.
(d) Complications:
(i) Imposing liability for greater crime may actually disincentivize rescue since
people will avoid situations where liability may arise.
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(ii) Punishment for greater crime where duty emanates from less severe statute may
be cruel and unusual punishment.
(2) Contractual Obligation:
(a) Rule: A duty to act may be created by implied or express contract.
(b) Rationale: Breaching a contract destroys others’ rights/expectations, which is akin to
affirmatively taking away victim’s property.
(i) E.g. Baby not feeding child is similar to actually taking away the baby’s food
upon which he depends.
(ii) E.g. Individual who owes contractual duty to transport victim to ER, yet fails to
do so is akin to bad Samaritan who takes victim’s own car that could have been
used to get to ER.
(iii) But: Utilitarian would assert that private law takes care of incentives required to
make someone perform a contract so criminal sanctions are excessive; we
already have optimal liability under contract..
(c) Paradigmatic Case: Mother hires a babysitter, who then fails to feed baby and causes
child’s death. Babysitter may be liable for killing baby.
(d) Complications:
(i) Contracting party did not initially owe the victim a duty (e.g. charity, not
mother, hires babysitter).
(ii) Contract does not directly address the type of harm that occurred, but had
obligation been fulfilled the harm would have been avoided (e.g. contract for
building inspection if fulfilled would have found neglected baby in building).
(iii) Contract contains penalty clause provision relevant to harm that occurred (e.g.
like efficient breach or no breach at all).
(3) Voluntary Assistance:
(a) Rule: One who voluntarily commences assistance to another in jeopardy has a duty to
continue, at least if a subsequent omission would put victim in worse position than had
actor not initiated help (i.e. an act, followed by an omission, may result in criminal
liability).
(b) Paradigmatic Case: Individual who volunteers to help victim in burning building, causing
others not to rescue, but subsequently ditches attempt (But, still seems like an active
intermeddler which does not create an omission complication because is like an act).
(i) E.g. Suppose Jones looks after the child for a while but then gets tired of it and
stops. Child dies. Liability?
(c) Complications:
(i) If victim’s position after partial rescue is used as point for comparison, instead
of victim’s position prior to rescue, then victim can be said to be worse off and
liability imposed.
(a) Analogy: Providing positive effects and then attempting to undo them.
(b) E.g. Individual who throws life saver to drowning victim but then
takes it away and leaves puts them in worse position that when life
saver was near.
(ii) Possible to define the omission as an act.
(a) E.g. Individual who dissuades people from rescuing victim in burning
building committed the act of stopping others from rescue.
(4) Status Relationship:
(a) Rule: When a person stands in a special status relationship to the person in peril, he may
be liable for failing to act.
(i) Parents to their minor children
(ii) Married couples to one another
(iii) Masters to their servants
(b) Rationale: Similar to contractual obligations, relationship create expectations and
reliance that if not fulfilled may impose liability for not acting.
(c) Paradigmatic Case: Parent fails to seek accessible medical attention for seriously ill child
who as a result dies.
(d) Complications:
(i) Scope: Just how much support must be given? How great a sacrifice is one
required to make?
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(a) E.g. Child needs organ donation and parent has the right type. Does
the father have a duty to donate? If he doesn’t, is that case of
involuntary manslaughter?
(b) E.g. Is there a financial duty? What about insolvent parent who cannot
afford to provide care for child who requires it to survive?
(ii) Parties: To what relationships does status obligation extend: adult child, adult
child with mental illness, step-child, child to parent?
(iii) Miscellaneous Complications:
(a) Parents who for religious reasons do not want to give child particular
medical treatment needed to save his life.
(b) Rescue situation in which several parent has to decide between saving
several drowning people on one side or their child on the other.
(i) Duty to save child and not others; therefore, may be omissions
liability for saving the strangers.
(ii) Utilitarian, though, would say to save the many.
(iii) Analogy: Limit on how much a parent has to do to save own
child. Parent is not required to give up life to save a child, but
do they have to spend all of their savings to do so?.
e)
(5) Creation of Peril:
(a) Rule: A person who wrongfully, or perhaps innocently, harms another or places a person
in jeopardy of harm has a duty to aid the injured or endangered party.
(b) Rationale: Responsibility for creation necessarily imposes obligation to restore individual
to position they previously were in.
(c) Paradigmatic Case: One who accidentally knocks someone into a pool and does not
rescue may be criminally liable for resulting death.
(d) Complications:
(i) Accidental, non-culpable risk-creation (e.g. accidentally locking someone in
room, but not letting them out when they request it).
(ii) Multi-Party Causation: A knocks B, B knocks C into pool Are both A and B
liable if neither comes to rescue or only one?
Act/Omissions Cases:
(1) Pope v. State:
(a) Facts: Pope took in a young woman and her baby, but then stood idly by while the crazy
mother beat her baby to death.
(b) Holding: Charitable woman not liable because she did not owe a legal duty to the victim
as third parties cannot usurp role of mother as caregiver.
(c) Rule: Passive bystanders are not criminals when they do not ower the victim a legal duty.
(d) Note: If mother had paid defendant, or had defendant volunteered to care for the baby
while mom was gone, she would have had a duty failure of which to uphold would
impose liability.
(2) Jones v. United States:
(a) Facts: Woman prosecuted for manslaughter after she failed to feed a baby in her care.
Baby was not hers and it was not clear if she as being paid to care for it.
(b) Holding: May or may not have had a duty.
(i) If woman was being paid, there would be contractual obligation.
(ii) If mother was no longer effective presence in baby’s care there may be liable for
voluntary assistance (i.e. isolating baby from alternative care left it worse off).
(3) Barber v. Superior Court:
(a) Facts: Patient in a vegetative state in which treatment was no longer effective. Family
decided to take him off life support and doctor followed their wishes. The physician was
then charged with manslaughter.
(b) Issue: Whether pulling the plug is an act or an omission?
(c) Holding: Court regarded discontinuation of life-support as an omission, so that, because
there was no duty to continue ineffective treatment, doctor was not liable.
(d) Arguments:
(i) Prosecution: Pulling the plug is like pulling the trigger since both are affirmative
acts that lead to death.
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(a) Defense: Life support is a machine that delivers a series of treatments
akin to manual injections. Pulling the plug is jus like choosing not to
(omitting) provide additional treatments.
(ii) Prosecution: If a third party unplugged the machine, that would be an act, how
could doctor’s physically identical motion constitute an omission?
(a) Defense: The difference is that the doctor is the initial helper who put
patient on life support. Pulling the plug is cessation of treatment,
whereas third party act is interference with existing treatment.
(iii) Prosecution: Pulling the plug is like cutting out an organ.
(a) Defense: There is a difference between something outside the body
and something inside the body.
(iv) Prosecution: Omissions require maintenance of the status quo, but the doctor
made the person worse off from when they were on life-support.
(a) Defense: Status quo is actually maintained. Doctor improved
patient’s position temporarily, then allowed him to go back to
underlying status quo which is being dead or on his way to a sure
death.
Mens Rea
I. General Principles
A. Rule:
1. With rare exception, a person is not guilty of a criminal offense unless he has the required culpable state of mind.
Criminal liability requires proof of an evil-meaning mind with an evil-doing hand.
B. Meanings:
1. Broad Meaning (Culpability): Mens rea is a general moral blameworthiness. Mens rea does not attach to the particular
proscribed harm, rather just suggests bad character, malevolence, or immorality (e.g. Cunningham trial judge equated
mens rea with general wickedness)
2. Narrow Meaning (Elemental): Mens rea must pertain to the particular mental state provided for in the definition of the
offense. It is possible to be morally blameworthy without having the requisite mens rea (e.g. Cunningham appellate
court required particular state of mind, foresight, as to the results of the crime charged).
3. Regina v. Cunningham:
a) Facts: Man stole gas meter for the change inside, but unintentionally released gas that escaped into
neighboring home killing the woman next door. Relevant statute prohibited administering poison
“maliciously.”
b) Holding: Although trial court said his theft shows a “wicked” mind state which is sufficient, the higher court
held that generalized “wickedness” is not enough to qualify for malice. Malice really requires intention or at
least an act with reckless disregard for foreseeable, harmful consequences.
C. Rationale:
1. Utilitarian: A person cannot be deterred from criminal activity for which he lacks culpability.
a) But: punishment of innocent actors may influence them and others to change their lifestyles that led to harm.
2. Retributivist: Belief that it is morally unjust to punish those who accidentally rather than by choice, cause social injury.
II. Four Mental States of the Model Penal Code
A. Model Penal Code § 2.02: General Requirements of Culpability
1. Minimum Requirements of Culpability: 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. Rationale: Intended to clear up the confusion between the Cunningham decisions.
B. Purposely:
1. Model Penal Code:
a) MPC § 2.02(2)(a): A person acts purposely with respect to a material element of an offense when:
(i) If the element involves the nature of his conduct or a result thereof, it is his
conscious object to engage in conduct of that nature or to cause such a result;
and
(ii) If the element involves the attendant circumstances, he is aware of the existence
of such circumstances or he believes or hopes that they exist.
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b) MPC § 2.02(6): Conditional Intent: When a particular purpose is an element of an offense, the element is
established although such purpose is conditional, unless the condition negatives the harm or evil sought to
be prevented by the law defining the offense.
2. Rules:
a) Purpose as to conduct and result: Intention or Objective
b) Purpose as to attendant circumstances: Knowledge or Hope
(1) Rationale: Morally, purpose and knowledge are equivalent as to circumstances. No need to distinguish
between a person who hopes circumstances exist and who fully expects them to exist (e.g. First person
knows that girl is underage and is about to have sex with her, whereas the second person’s object is to
have sex with someone underage. Either way, the result is the same because hope is in regard to
circumstance, not result making both people moral equivalents).
c) Conditional Intent: Satisfies the intent requirement, unless when condition is met, no crime would occur.
3. Burglary Example:
a) Statute: Purposely breaking and entering with intent to commit felony in a dwelling.
b) Two Ways to Read Purpose as to Dwelling Requirement
(1) Intent to break into dwelling; or
(2) Intent to break and enter, with knowledge of attendant circumstance that place is a dwelling (belief,
awareness, or hope)/
c) Conditional Intent: Breaking and entering with intent to steal only if a big screen television is there.
Offender is still guilty, even if television not there because harm of entering another’s home still present.
(1) Alternatively, if offender had intent to break and enter conditioned on the place being his own home,
purpose is not satisfied because breaking into own home is not a crime.
4. What “Purpose” Adds to Criminal Code:
a) With most serious acts of causing harm, people are not certain they will succeed but hope that they will.
b) Hoped-For Low Probability Offense: Situations in which result is particularly unlikely but still intended,
knowledge is not enough because probability is too low. Intuitively, though, offender still deserves
punishment.
(1) E.g. Shooting at an enemy from many miles away with the intention to kill. Person wants enemy dead
but has very slight chance of actually killing (particularly relevant with attempts).
c) Problems: Purpose can be over-inclusive. Serve a cake with nuts and hope that maybe kid is allergic and he
wounds up being causing him to do. Or, give an airplane ticket to friend hoping the plane crashes, which it
does.
C. Knowingly:
1. Model Penal Code
a) MPC § 2.02(2)(b): A person acts knowingly with respect to a material element of an offense when:
(i) If the element involves the nature of his conduct or the attendant circumstances,
he is aware that his conduct is of that nature or that such circumstances exist;
and
(ii) If the element involves a result of his conduct, he is aware that it is practically
certain that his conduct will cause such a result.
b) MPC § 2.02(7): Knowledge of High Probability / Willful Blindness: When knowledge of the existence of a
particular fat is an element of an offense, such knowledge is established if a person is aware of a high
probability of its existence, unless he actually believes that it does not exist..
2. Rules:
a) For results, knowledge requires awareness of practical certainty.
b) For circumstances and conduct, knowledge requires knowledge of existence and nature.
c) Willful blindness is not a defense where knowledge of high probability that fact is as it is required by
statute.
3. Theft Example:
a) Statute: Receiving stolen property requires knowledge that the properly is stolen.
b) Actual Knowledge: Thief tells you that the property is stolen.
c) High Probability as Knowledge: Person that you know has stolen items in the past offers to sell you valuable
property for unusually cheap price.
4. Willful Blindness: Where high probability of fact can substitute for actual knowledge.
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a) Rule: In order for willful blindness to substitute for knowledge: (1) actor must be aware of a high probability
of he existence of the fact in question, and (2) deliberately fail to investigate, in order to avoid confirmation
of the fact.
(1) Willful blindness may be treated as constructive knowledge
(2) Willful blindness is often treated as morally equivalent to knowledge.
b) Rationale: Addresses deliberate avoidance of guilty knowledge (i.e. where offender contrived to avoid).
c) Criticism:
(1) Culpability can be based on failure to take obvious and simple steps (omission) rather than just active
steps.
(2) Risk that jury may convict for merely being reckless in failing to investigate, which is not equivalent of
knowledge.
d) United States v. Jewell:
(1) Facts: Statute under which defendant was prosecuted depends on “knowingly” transporting drugs.
Defendant testified to not actually knowing that drugs were in a secret compartment. Evidence
suggested that he deliberately avoided such knowledge (even avoided knowledge of high probability
drugs were there).
(2) Two Views:
(a) Majority: Moral and practical policies require us to treat willful blindness as equivalent
of knowledge or “constructive knowledge” (e.g. knowledge should encompass not only
100% certainty, but also 95% certainty).
(b) Dissent: Knowledge is intended to mean virtual certainty for which willful blindness
cannot substitute (i.e. not the moral equivalent of literal knowledge).
5. What “Knowledge” Adds to Criminal Code:
a) Unintentional, High-Probability Offense: Meant to deal with situations where harm is unintended, but
obviously likely to occur (flipside of purpose).
b) E.g. Driving into crowd without intent to kill but expectation that someone is almost certain to die.
Intuitively, offender is more deserving of punishment than just recklessness, but lacks purpose.
6. Distinction between “Purpose” and “Knowledge”:
a) Distinction hinges on difference between negative results of conduct as by-products (knowing) and means
(purpose).
(1) E.g. D tries to kill retarded son to collect his life insurance by setting his house on fire; son was killed
purposefully because murder is the means.
(2) E.g. D wants to burn house to collect home insurance and knows there is a high likelihood that retarded
son will die and he does; man is guilt of knowing behavior because murder is only a byproduct.
b) The concepts are overlapping, but having both available accounts for the rare circumstances in which one is
present without the other. Together, thy offer more prosecutorial flexibility.
c) Distinction matter when liability is all-or-nothing, as with attempt liability.
D. Recklessly:
1. MPC § 2.02(2)(c): A person acts recklessly with respect to a material element of an offense when he consciously
disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk
must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the
circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding
person would observe in the actor’s situation.
2. Rule: Where an individual knowingly disregards a substantial, unjustified risk and thereby causes a social harm, he acts
recklessly.
3. Standard: Objective Reasonableness
a) To Determine “Substantial and Unjustifiable”: Balance the probability of the harm and size of the harm
against the reasons for which risk was taken (i.e. BPL)
b) Rationale Behind Substantiality: Where conduct is obviously unjustified, but risk is still clearly
unsubstantial, not automatically recklessness (e.g. defendant driving carefully to drug deal but still gets in
accident; clearly unjustified risk but insubstantial).
4. Difference Between Recklessness and Knowledge:
a) Certainty: There is less certainty that result will occur with recklessness than with knowledge.
b) Potential Justification: With knowledge there is no reason good enough to exonerate the accused; however,
with recklessness, risk-taking can be justified if the reason is good enough.
c) Complication: Aggregation of Risk
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(1) Repeated instances of near recklessness if aggregated may demonstrate knowledge.
(2) Rule: But, typically each separate instance of risk-taking is viewed individually. Do not aggregate risk
because doing so could make justified, beneficial risk-taking impossible without liability for knowledge
crimes certain to arise.
(3) E.g. Repetition of slightly reckless driving each day with knowledge that in each particular instance a
chance of accident is small, but almost certain to occur eventually.
(a) If unit is each individual instance of slightly reckless driving, then he is not guilty.
(b) But, if in the aggregate we view the repetition as a whole of reckless conduct, then he
could be liable for knowledge due to awareness of substantial likelihood.
(4) E.g. Industrial project of building a highway. Each day there is risky behavior which if continued is
certain to cause accident. Accident finally occurs. Either liable for knowingly murder or not guilty.
(a) Day-to-Day: Not reckless because good reason for incurring substantial risk.
(b) Long Period of Time: There is certainty of causing harm, which establishes knowledge
for which there is no available defense of justifiability.
E. Negligently:
1. MPC § 2.02(2)(d): A person acts negligently with respect to a material element of an offense when he should be aware
of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of
such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and
circumstances known to him, involves a gross deviation from the standard of care a reasonable person would observe in
the actor’s situation.
2. A degree of awareness is required for recklessness, but not criminal negligence.
3. Criminal negligence is a more difficult standard to meet than civil negligent. There must be either a graver harm, more
probable harm, lower precaution, or less significant reason for taking the risk. If risk taken for very trivial reasons, it is
more likely to be criminal negligence.
III.
Canons of Statutory Construction
A. Model Penal Code:
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 if established if a person acts purposely, knowingly or
recklessly with respect thereto.
2. MPC § 2.02(4): Prescribed Culpability Requirement Applies to All Material Elements: When the law defining an
offense prescribes the kind of culpability that is sufficient for the commission of 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 appear.
3. MPC § 1.13: “Material Element:” element that does not related exclusively to the statute of limitations, jurisdiction,
venue or to any other matter similarly unconnected with (i) the harm or evil, incident to conduct, sought to be prevented
by the law defining the offense, or (ii) the existence of a justification or excuse for such conduct.
B. General Rules:
1. If the statute lists required mind state as to a particular element of an offense, only that particular state of mind satisfies
the mens rea requirement.
2. If the statute lists required mind state for only one material element, that mind state applies to all other material
elements.
a) Exception: Contrary Purpose, such as when the mind state appears as to elements later in statute is it less
likely that it will apply to actus reus element prior to it.
(1) E.g. Burglary provides that it is an offense to “enter an occupied structure with purpose to commit
crime therein.” Placement of purpose after the phrase “enter an occupied structure” demonstrates
drafters’ intention not to require purpose as to the entrance element. They could have placed
“purposely” at the start instead.
3. When the definition of a criminal offense is silent regarding the requisite state of mind, purpose, knowledge, or
recklessness suffice.
a) Rationale for Recklessness as the Presumed Minimum Mind State Required:
(1) Retributivist: Moral blameworthiness and just deserts intuitively rest upon element of disregard for
others; therefore, since all mind states except negligence satisfy element of consciousness and choice, it
is a reasonable place to draw the line.
(2) Where statutes are ambiguous, by using recklessness as the baseline we are most likely to guess right as
to the legislature’s intention.
(3) Legislature can always draft statutes against the background of the canons of construction to impose
liability where recklessness not met or to require more than recklessness
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C. Burglary Example:
1. Statute: Prohibits “knowingly entering a building with intent to commit felony… where the building is a dwelling.”
2. Facts: Assume that the building was dwelling, but the robber did not know or have reason to know that it was. Is he
guilty of burglary (does he satisfy the mens rea element)?
3. Two Approaches:
a) Retributivist: Read Knowledge Requirement into Dwelling Element -- Not guilty because he did not have
the requisite mental state and knowledge more culpability than simply being reckless as to whether or not
building was a dwelling.
b) Deterrence: Do Not Read Knowledge Requirement into Dwelling Element – Guilty because so ruling would
increase the risk of robbing buildings and thereby increase overall deterrent effect of the statute.
IV.
Mistake of Fact
A. Model Penal Code §2.04: Ignorance or Mistake
1. MPC §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; or
b) The law provides that the state of mind established by such ignorance or mistake constitutes a defense.
2. MPC § 2.04(2): Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense is
not available if the defendant would be guilty of another offense had the situation been as he supposed. In such case,
however, the ignorance or mistake of the defendant shall reduce the grade and degree of the offense of which he may be
convicted to those of the offense of which he would be guilty had the situation been as he supposed.
B. Moral Wrong Approach (Prince Majority)
1. Rule: If what one thinks he is doing is morally wrong, mistake of fact is not defense.
2. Conviction: Greater Offense.
3. The intent to commit an act that is immoral furnishes the requisite culpability of the resulted, but unintended, outcome.
4. A person who knowingly performs morally wrong act assumes the risk that circumstances are not as they appear to be
and that act may actually be illegal.
C. Legal-Wrong Approach (Prince Dissent)
1. Rule: If what one thinks he is doing is a crime, mistake of fact is not defense.
2. Conviction: Greater Offense.
3. Mens rea for the lesser crime substitutes for the mens rea of the more serious, but unintended crime.
4. But, if one did not believe he was committing crime at all, then there is no liability because mens rea is lacking.
5. E.g. Person who assaults a person without knowing whether or not victim is a police office is liable under harsher
statute against assaulting police officer because regular assault is a crime.
D. MPC § 2.04(1): Mens Rea Negation Approach
1. Rule: If the actual mistake or ignorance negatives the mens rea required by the statute, mistake of fact is a defense.
2. E.g. Statute against assaulting a police officer, which requires recklessness as to whether or not the victim was a cop or
not. If there was no indication whatsoever that he was a cop, then defendant is only guilt of regular assault.
E. MPC § 2.04(2): Lesser-Crime Approach
1. Rule: When mens rea and actus reus are both criminal, but as to different offenses, the accused is guilty of the less
serious crime.
2. Rationale: Intended to deal with situations where there is actus resu of one crime, but mens rea of another that without
this provision would bar liability for actors who intuitively deserve punishment and whose punishment may deter others
from bad behavior.
3. Example:
a) If D is out poaching deer and aimed at what he thought was a deer but actually killed a person, he is guilty
only of poaching (unless being reckless as to potential for human being to be there)
b) Alternatively, if D is out hunting people and shot at what he thought was a person, but turned out was just a
deer, then he is still only guilt of poaching.
4. Complication: When the mental state is wholly unrelated to the actus reus.
a) E.g. Offender believes he is driving get-away car for bank robbery but instead participates in successful
assassination. Should he benefit from fortuity of unsuccessfulness of intended act when result was worse?
(1) MPC 2.04(2): Liable for the actual bank robbery even though one never occurred or came close to
occurring (Awkward)
(2) Or, may just be an unsuccessful attempted bank robbery for which there is attempt liability.
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Mistake of Fact
Prince Majority
(Moral Wrong)
Guilty
Prince Dissent
(Legal Wrong)
Not Guilty
MPC 2.04(1)
(Negative Mens Rea)
Not Guilty
MPC 2.04(2)
(Lesser Crime)
Not Guilty
Guilty
Guilty
Guilty of Murder
Guilty of Murder
Guilty of Simple
Assault Only
Probably Just Guilt of
Poaching
Guilty of Poaching
Guilty of Poaching
Guilty of Simple
Assault Only
Not Guilty of Murder
(Perhaps
Manslaughter if
Shown Reckless)
Not Guilt of Poaching
or Murder
Prince (unknowing
statutory rape)
Unknowing Assault
on Police Officer
Intentional poacher
accidentally hits a
person
Attempted murderer
accidentally hits an
animal out of season
Just Guilty of
Poaching
F. Mistake of Fact About Age
1. MPC § 213.6: Mistake of fact is a defense only when statute in question prohibits sex with child older than ten-yearsold. Otherwise, it is strict liability for ages 10 and under.
a) Rationale: We are wary of imposing strict liability, but with kids ten and under there is no possibility of a
reasonably mistake belief that would negate culpability because lack of maturity is obvious.
b) By setting the age so low, the MPC assures that strict liability only attaches to individuals who could never
have mistook child as mature enough to engage in intercourse with.
2. People v. Olsen:
a) Facts: Defendant was charged with statutory rape after having sex with a minor whom he had reason to
believe was of age.
b) Holding: Conviction affirmed because of the strong policy in favor of protecting children from predation.
Strict liability statute criminalizes sex with any minor under the age of fourteen regardless of mistaken facts.
c) Note: Holding does not comport with the MPC’s reasoning behind setting age very low in order to avoid
holding strictly liable individual whom could reasonable have been mistaken about victim’s maturity level.
3. Regina v. Prince:
a) Facts: Defendant ran off with a sixteen-year-old girl who told him that she was eighteen. He was charged
under a statute that prohibited taking minor away from her father.
b) Majority Holding: Because it is morally wrong to take an unmarried girl away from her father, defendant
had sufficient mens rea to be guilty (Moral-Wrong Doctrine).
c) Dissent: Because taking a non-minor away from her father is not a crime and is what defendant thought he
was doing, there is no mens rea sufficient to convict (Legal-Wrong Doctrine).
G. Mistake of Fact as to Non-Material Elements
1. Rule: Strict liability attaches to all non-material elements of an offense unless the statute expressly requires one.
Therefore, mistake of fact regarding non-material elements is almost never a defense.
2. Non-Material Element: Element of an offense, which is wholly unrelated to the harm or evil thought to be prevented by
prohibition on conduct (i.e. no bearing on blameworthiness or culpability).
3. Examples:
a) E.g. Statute bans dumping chemicals in Pennsylvania. Defendant dumps chemicals believing himself to be
in Ohio, but is actually in Pennsylvania. Because mens rea requirement (reckless, as read into statute) only
applies to material elements, defendant is guilty because location of crime is irrelevant to the harm of the
prohibited conduct (jurisdiction element, only). Defendant need not have been reckless to his location.
b) E.g. Group of individuals attempts to sell sugar to undercover police officers by presenting it as cocaine.
Battle ensues when defendants believe the “clients” are onto their plan. Defendants are charged with
intentionally assaulting a federal officer. Issue is whether fact that officer must have been federal material
or not.
(1) Majority: Federal requirement just a jurisdictional matter intended to give protection federal protection
to only federal employees and not encroach on state law enforcement authority; therefore, no intention
requirement read into non-material element.
(2) But, perhaps fact that officer must be federal suggests one is more culpable where officer has federal
authority; therefore, element may have bearing on blameworthiness and may be material.
V. Strict Liability
A. General Principle:
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1. A strict liability doctrine is a rule of criminal responsibility that authorizes the conviction of a morally innocent person
for violation of an offense, even though the crime, by definition, requires proof of mens rea.
2. Strict liability offenses are crimes that by definition do not contain a mens rea requirement regarding one or more
elements of the actus reus.
B. Elements Making Strict Liability Appropriate:
1. Importance to Public Health: Because a single careless violation can simultaneously injure a great number we sacrifice
personal guilty for collective good.
2. New Public Welfare Offense: Since there is no common law tradition, it is easier to dispense with mens rea
requirement than with traditional crimes.
a) Malum In Se: Inherently wrongful acts require a guilty mind for conviction.
b) Malum Prohibitum: Regulatory offenses with no common law tradition allow for some strict liability.
c) Morissette v. United States:
(1) Facts: Junk dealer, who was taking bomb casing from military test range to sell, was charged with
converting government property. His defense was that he honestly believed the casing to have been
abandoned.
(2) Holding: Strict liability cannot be imposed here because conversion is a common law offense with
traditional mens rea requirement, even if not expressly provided by statute. Therefore, defendant’
mistake of fact defense is at least potentially valid as it could negate required intent to steal.
3. Easy Avoidability
4. Light Penalty
5. Legislative Policy Undermined by Mens Rea Requirement
6. Suspect Activity: By engaging in the suspect conduct, actor is automatically put on alert to fact that may need to check
whether or not there a regulation regarding it or not (i.e. inconsistent with totally legal behavior).
a) Staples v. United States:
(1) Facts: Defendant convicted of violating federal gun law for possessing an assault rifle modified to fare
as a fully automatic. He defendant on the grounds that he did not know it had been modified since he
had not himself modified it, nor did he realize it was capable of automatic fire.
(2) Holding: No strict liability because conduct (buying an assault rifle) is not “inherently suspect.” Since
the conduct is consistent with perfectly legal behavior, there is nothing to tip buyer off that he should
inquire into whether or not conduct is permissible.
(a) Contrast with purchasing grenades could be eligible for strict liability because buyer is
obviously on alter by virtue of the nature of his conduct that it may be regulated.
C. Justifications For & Against
1. Utilitarian: Strict liability may more effectively deter socially dangerous conduct.
a) Absence of mens rea requirement may keep those who doubt capacity to act safely from engaging in risky
behavior.
b) Those who choose to engage in risky activity will do so with greater caution.
2. Retributivist: Strict liability is antithetical to the core of criminal justice, which requires that the accused be morally
blameworthy in order to warrant punishment (mens rea is indispensable).
D. Defenses to Strict Liability: Involuntariness
1. Voluntary Act Requirement: Could argue that unknowingly committing conduct that is prohibited renders involuntary
and therefore the voluntary act requirement is not satisfied.
a) But: The voluntary act requirement in general should not be read so broadly because doing so would
eliminate strict liability offenses (the exception would swallow the rule).
b) State v. Baker:
(1) Facts: Defendant convicted of speeding despite claiming that his cruise control had malfunctioned and
thereby caused him to exceed limit involuntarily.
(2) Holding: Since the act of turning on the cruise control was voluntary, it satisfied the non-mens rea
elements of the strict liability offense. Therefore, it is not defense that conduct was involuntary.
(3) Rule: To be a valid defense to strict liability, defendant must show that the violation was the result of an
unforeseen circumstance, not caused by defendant and not preventable by him (e.g. malfunctioning
brakes).
VI.
Ignorance of Law
A. Model Penal Code
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1. MPC 2.04(3): A belief that conduct does not legal constitute an offense is a defense to a prosecution for that offense
based upon such conduct when:
a) The statute or other enactment defining the offense is not known to the actor and has not been public or
otherwise reasonably made available prior to the conduct alleged; or
b) He acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or
erroneous, contained in (i) a statute or other enactment, (ii) a judicial decision, opinion, or judgment, (iii) an
administrative order or grant of permission, or (iv) an official interpretation of the public officer or body
charged by law with responsibility for interpretation, administration or enforcement of the law defining the
offense.
2. MPC § 2.02(9): Culpability as to Illegality of Conduct: Neither knowledge nor recklessness or negligence as to whether
conduct constitutes an offense or as to the existence, meaning or application of the law determining the elements of an
offense is element of such offense, unless the definition of the offense or the code so provides.
B. General Principles
1. Rule: No mental state applies to knowledge of particular law because it is not a material element of an offense.
Therefore, ignorance of law is no defense as there is no mens rea to be negated by ignorance of law, unless a particular
exception applies.
2. Rationale:
a) Avoid Subjectivity in the Law: Since laws are unavoidably vague, there cannot be subjective interpretations
capable of excusing misconduct.
b) Deterring Fraud: In practice, allowing ignorance of law as a defense would allow guilty individuals to
contrive excuses successfully.
c) Encourage Legal Knowledge: To permit ignorance of law as a defense would incentive rather than
discourage people to learn the law and follow it.
d) Retributivist:
(1) Individuals should be guided y on moral compass and by not follow it, they are culpable regardless of
knowing it was illegal or not (e.g. malum in se crimes).
(2) Counter: Laws do not perfect track intuition. Thus, there are cases where following moral compass
actually leads people to violate the law, despite not feeling culpable (e.g. malum prohibitm, Milgram
experiment).
e) Utilitarian: By punishing those who commit crime despite lack of legal knowledge, society benefits because
it incentivizes people to be more careful in conduct they undertake for fear that law may be relevant.
C. Exceptions: Where Ignorance of Law is a Defense
1. Reliance Exception:
a) Relevant Provision: MPC § 2.04(3)
b) Rule: Ignorance of law is a defense when
(1) Defendant did not know law and law was unpublished or unavailable; or
(2) Defendant acts in reliance on official statement of the law that late turns out to be incorrect.
c) But, ignorance of law is not a defense when defendant relies on her own erroneous reading of the law, even
if reasonable person would have similarly misunderstood the law.
d) People v. Marrero:
(1) Facts: A federal corrections officer was arrested for possession of a gun in violation of a statute, which
exempted from enforcement “peace officers,” including state correctional facilities or any penal
correctional institution.
(2) Holding: Despite defendant’s ultra-reasonable mistake of law, reliance exception is not available
because defendant may only rely on authoritative statement of the law, not personal interpretations.
(3) Note: New York ignorance of law statute did not expressly require subsequent validation like MPC;
however, Court reads requirement into it in order to avoid exception swallowing the rule against
ignorance of law as a defense.
2. Collateral Civil Law Exception:
a) Relevant Provision: MPC § 2.04(1)
(1) Exception to MPC § 2.02(9): Whereas knowledge of law is not material element, where collateral civil
law is involved it is.
b) Rule: Ignorance of law is a defense when mistake is in regard to a related civil law upon which criminal
liability depends and mistake negates mental state required.
(1) There is always two ways to read a statute: either knowledge of law is relevant or it is not.
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(2) Canon of Construction: Where there is an ambiguous reading, presume knowledge irrelevant as to
criminal law, but should be relevant to collateral civil law, which is more like a fact.
c) Rationale: Mistake of collateral civil law is more akin to factual mistake than it is to ignorance of criminal
law. Therefore, because factual mistakes that negate mens rea are defenses, so too are mistakes about
collateral civil laws.
d) Regina v. Smith:
(1) Facts: Tenant installed speaker wires behind walls and floor in apartment. When he moved out, he
damaged walls and floors to get wires. Defendant charged with destroying landlord’s property, despite
believing the wires were his. In fact, they were not due to the Law of Fixtures.
(2) Two Ways to Read the Statute:
(a) Prosecution: Mental element only relates to damage, not to who owns the property.
(b) Defense: Mental element carries over to who owns the property, also.
(3) Holding: Since the Law of Fixtures is a collateral civil law, mistake of law is a valid defense.
e) State v. Woods:
(1) Facts: Defendant married man who she believed was validly divorced but was actually not. She was
prosecuted under adultery statute which had intent requirement as to sleeping with married man.
(2) Holding: Guilty, despite ignorance of law.
(3) Note: The holding is incorrect because the mistake of law obviously goes to a collateral civil law
regarding divorce; therefore, knowledge of the law should be required in statute.
f) Complication: When line between civil and criminal is blurred, it is difficult to determine whether or not
mistake of law should be a defense (e.g. definitional elements of criminal code).
(1) People v. Weiss:
(a) Facts: Kidnappers relied on statement of police officer, which they interpreted as giving
them authority to arrest individual.
(b) Holding: Mistake as to collateral criminal law allowed as defense because definitional
part of criminal code seems more like civil law than a criminal prohibition on conduct.
(2) People v. Marrero:
(a) Facts: Correctional officer mistakenly interpreted “peace officer’ exception to apply to
himself even though it actually did not.
(b) Holding: Mistake of collateral criminal law not valid defense because definition appears
in criminal code.
(c) Note: Most courts disagree, as they tend to follow holding in Weiss and treat definitional
criminal statutes like civil law.
3. Self-Same Exception:
a) Rule: Ignorance of law may be a defense when the statute demonstrates a purpose to require knowledge of
law in order for defendant to be guilty (e.g. criminal law is sufficiently complex).
b) Cheek v. United States:
(1) Facts: Defendant pilot was convicted of willfully evading taxes after anti-tax group persuaded him that
he was not subject to tax law requirements. Defendant argued that knowledge of law is required by
statute and that statute was unconstitutional.
(2) Holding: To prove willful violation of a very complex tax code requires proof of knowledge of law and
that it applies (legislative intent). Unconstitutionality, however, is not a defense because to contest it
presupposes knowledge that it may apply.
4. Due Process Exceptions:
a) Entrapment By Estoppel: It violates due process to convict a defendant for conduct that governmental
representatives in their official capacity earlier stated was lawful, even if that statement is incorrect. (i.e. if
official gives incorrect advice, it is followed, then there is not guilt).
b) Reasonable Reliance Exception: Individuals may rely on official statements of the law until they are
officially overrules. Conduct that occurs in reliance on decision but before it is overrules is protected from
retroactive application by Due Process Clause.
(1) United States v. Albertini: Ninth Circuit held defendant’s protests were protected under the First
Amendment. Before the Supreme Court overrules the decision, defendant engaged in similar
demonstrations. Defendant exempt from prosecution since conduct occurred before official overruling
of previous decision.
c) Fair Notice Exception: When a statute is unusual and reasonable person would have no way of being
notified of its existence, they may have a valid defense (adequacy of notice may depend on whether statute
is tied to activity that reasonable person would have suspicion violates a statute).
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(1) Lambert v. California:
(a) Facts: Defendant was an L.A. resident and convicted felon. City ordinance required
convicted felons residing in the city for more than five days to register, but defendant
never did because she did not know she had to. She was charged for failing to register in
violation of the ordinance.
(b) Holding: Conviction violates Due Process because defendant must have had actual
knowledge or probability of such knowledge to provide constitutionally mandated fair
notice. In other words, ignorance of law is a defense when prohibited conduct itself
would not alter an actor to the need to investigate whether there is a relevant published
statute.
(c) Factors Leading to Reluctance to Convict:
(i) Omission liability
(ii) Duty to act based on status
(iii) Malum prohibitum offense
(d) Limited Applicability: Courts have kept the fair notice exception very narrow because a
broad reading would undermine the ignorance of law is no defense principle.
(i) Marrero: Active conduct and knowledge of potential applicability.
(ii) Cheek: On alert to inquire about tax law applicability because everyone files
taxes.
D. Difficult Hypotheticals
1. Watergate Scenario: Previous Cuban CIA agents received call from former CIA boss now working for the President
who enlisted their help to break into psychiatrist’s office. They are caught and charged with “conspiring to injure any
citizen in exercise of right secured by Constitution.” Can they defend on ignorance of law grounds?
a) Reliance:
(1) Yes, they reasonably relied on official statement of the law by individual who works for the President.
(2) No, because former boss not charged with authority to interpret or enforce the law himself there can be
no reliance exception.
b) Collateral Civil Law:
(1) Yes, constitutional right violated is civil law of which they were ignorance, which thereby negates
required mens rea (i.e Constitution requires knowledge of law).
(2) No, because it is basic constitutional principle, it is not treated as collateral civil law like law of fixture;
therefore, knowledge of law is irrelevant (i.e. any reasonable person would assume records protected by
privacy law).
c) Self-Same:
(1) Yes, constitutionality is sufficiently difficult to understand so as to glean a requirement that defendant
have knowledge of the law’s applicability (Cubans not aware because not American).
(2) No, not the kind of technical complexity like that of a tax code.
d) Due Process:
(1) Yes, entrapment by estoppel to convict for reasonabl reliance on official statement of the law.
(2) No, not reasonable to rely on the statement made because it is obvious that laws pertain despite what the
boss said.
2. Hashish Scenario: Man entered country carrying hashish but believed himself to be carrying cash. He also thought that
importing large amounts of cash was illegal, but actually it was not. Statute required knowledge. Is ignorance of law
harmful or helpful for defendant on charge of knowingly smuggling drugs?
a) Role Reversal:
(1) Normally defendant will argue that knowledge of law is required and prosecution does not want it to be
required.
(2) Here, though, prosecution will argue that knowledge of the law is required, but defense will argue that
knowledge of the law is not required.
Homicide
I. Homicide Schemes: MPC & Pennsylvania Statute
A. Model Penal Code: No Degrees, Just Grades of Felony
1. MPC § 210.2: Murder: Criminal homicide constitutes murder when:
a) It is committed purposely or knowingly; or
b) It is committed recklessly under circumstances manifesting extreme indifference to the value of human life.
Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the
22
commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or
deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape.
2. MPC § 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 there is reasonable explanation or excuse. The reasonableness of such
explanation or ecuse shall be determined from the viewpoint of a person in the actor’s situation under the
circumstances as he believes them to be.
B. Pennsylvania Homicide Statute: Degrees of Homicide
1. First Degree Murder: Intentional killing with premeditation
2. Second Degree Murder: Felony-murder
3. Third Degree Murder: All other forms of murder
4. Voluntary Manslaughter: Acting under sudden and intense passion resulting from serious provocation.
C. Issues with Common Law Requirement of Premeditation:
1. Temporality: Whether premeditation can manifest instantly or requires time span for plan to develop. At what point is
contemplation prolonged enough to constitute premeditation.
a) Commonwealth v. Carroll:
(1) Facts: Mentally deranged wife who abused children fought with defendant husband. Husband had
placed loaded gun above bed for wife at an earlier point in time. After a particularly harsh fight, the
wife fell asleep and husband impulsively grabbed gun and shot her.
(2) Holding: Guilty of first-degree murder under the Pennsylvania statute. Court essentially conflates
premeditation with intent. Premeditation can occur in an instant and does not require time to develop.
2. Premeditation does not necessarily demonstrate greater moral blameworthiness.
a) E.g. impulsive, non-premeditated killing that is particular cruel and inhumane is obviously more
blameworthy than premeditated killing by son whose father is terminally ill in hospitals and who wants to
die.
3. Premeditated plan may not match the actual crime that occurred.
4. Emotion behind crime may fester and develop over time, but actual impulse is instantaneous.
5. Partial premeditation in which one thinks of possibility without a plan, intends to carry out in future but acts on impulse
when killing actually occurs.
II. Provocation
A. Rules
1. Common Law: Provocation is sufficient to mitigate an intentional killing to manslaughter if it would render ordinarily
prudent person incapable of deliberation or reflection and manifest only passion, rather than judgment.
a) Most non-MPC jurisdiction hold to rule that “words alone are not enough to constitute adequate
provocation; slowly the rigid rule is breaking down.
b) Defense is typically unavailable if a reasonable person would have cooled off in time between provocation
and act.
c) Provocation must cause/motivate the fatal act.
2. Model Penal Code § 210.3: A person who would otherwise be guilty of murder (purpose, knowledge, or extreme
recklessness), is guilty only of manslaughter if she killed while suffering from an extreme mental or emotional
disturbance for which there is reasonable explanation or excuse.
a) Components:
(1) Subjective Component: Extreme mental or emotional disturbance.
(2) Partially Objective Component: reasonable explanation or excuse for the disturbance.
(a) Subjectivized to the extent that it is viewed from actor’s situation, accounting for
accused’s personal handicaps and other relevant external characteristics.
(b) But, does not include idiosyncratic moral values of defendant.
b) Broader than the common law provocation defense.
(1) Need not involve affront perpetrated by decedent on defendant (no causation).
(2) Words alone can warrant manslaughter instruction.
B. Issues with the Provocation Mitigation Defense
1. Potential for Jury Prejudice Against Victim:
a) MPC: Less concerned about the potential for jury prejudice against unsympathetic victims. Therefore,
expected emotional disturbance, even where caused by words only, can raise provocation defense
23
(1) Question of whether provocation is sufficient as a defense is for the jury to decide because it is a
question of mixed law and fact.
(2) Maher v. People:
(a) Facts: Defendant purposely killed victim in a bar because he had good evidence that the
victim was having an affair with his wife.
(b) Holding: Provocation defense can go to the jury because verbal or non-physical
provocation may lead jury to thin an ordinary person would have provoked to kill.
b) Common Law: Only particular categories of provocation permit raising it as a mitigating defense. Words
alone, however, are never sufficient.
(1) Permitting defense raises the possibility that defense prejudices jury against the victim by noting
irrelevant evidence regarding the victim’s bad character in order to make the killing seem more justified
(son-of-a-bitch-needed-killing defense).
(2) Girouard v. State:
(a) Facts: Wife viciously taunted husband. Wife asks him “What are you gonna do about it?”
Husband then proceeded to kill her intentionally. He appealed for reduction of charge to
manslaughter on the grounds that he was provoked.
(b) Holding: Verbal provocation is not enough. Jury cannot even be told about the possible
defense because doing so would prejudice jury against the victim too much to render
valid judgment..
2. Justification or Defense: Elements of Both
a) Justification: We approve of the behavior, despite actus reus technically being criminal because we
ourselves would have reacted similarly. It is the “correct” way to have reacted, in a sense. (e.g. self-defense,
necessity, etc.).
(1) Provocation: Culpability is reduced because the victim is partially responsible for bringing about the
crime or even deserved the reaction defendant dealt him.
(2) E.g. Father who kills a driver that ran over his son is more justified in killing when the driver was
reckless than when he was innocent; therefore, he is more eligible for reduction to manslaughter.
b) Excuse: No approval of the conduct as justified, but an understanding of why it was committed and
sensitivity to the defendant’s limited responsibility for his actions (insanity, etc.).
(1) Provocation: We understand that the particularly trying nature of the circumstances temporarily
overcomes defendant’s control. A person who kills in such circumstances is not acting from corrupt
heart, but from infirmity of passion. Because they are less responsible, they are eligible for mitigated
charge of manslaughter rather than murder.
3. Subjective vs. Objective Standard for Judging Reasonableness of Reaction
a) Issue: How individualized should the standard for judging reasonableness of an individual’s response to
provocation be?
b) MPC: No specific categories to define when provocation is sufficient. Rather, accepting verbal provocation
necessarily requires more individualized standard because words mean different things to different people.
c) Common Law: Fear is that without limits on how individualized standards can become, the defense will be
too easily made. The consequences could be that individuals with particular sensitive or heated temper
could claim provocation each time they committed killing in response to others’ behavior.
d) Director of Public Prosecution v. Camplin:
(1) Facts: Older man had sex with boy and then proceeded to taunt the boy about the sexual act. The boy
reacted by shooting the man. The boy pleaded for a reduction in his murder charge to manslaughter due
to the verbal provocation and his sensitivity as a younger man.
(2) Holding:
(a) Verbal provocation may be sufficient to raise a provocation defense to a charge of
murder.
(b) Standard for the provocation is individualized as to age and sex, as well as other relevant
characteristics relevant to the gravity of the provocation, not to the level of self-control
one should exhibit.
(3) Reasoning:
(a) If verbal provocation is sufficient, and language is inherently subjective, the standard,
too, must be somewhat individualized to account for the differing effects of language on
people.
(b) Two-Factor Analysis (works best when verbal provocation pertains to exact
characteristic that makes person more prone to being provoked; e.g. calling fat person
fat)
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(i) Subjective: Take account of individual characteristics in assessing the gravity of
the provocation (register the level of harm that it would register)
(ii) Objective: Use objective, reasonable standard to assess reaction to provocation
at that level of gravity to determine if it was reasonable or not.
(4) Majority: Although not technically, age changes the gravity of offense since it is too difficult to separate
it out.
(5) Dissent: Age is only relevant as to the level of self-control and reaction, not the gravity of offense
because he was not teased about his age.
4. Unique Sliding Scale Approach
a) Observation: The provocation analysis is unusual in criminal law because it operates on a gray scale as
opposed to being black-and-white like most other aspects of the criminal code, like intent/no intent or
act/omission. Provocation is conceived of as a matter of degree, while other parts only vary categorically
for the most part.
b) Sliding Scale:
(1) Usually Qualifies: Physical Assault.
(2) May Qualify: Seeing Wife Having Affair.
(3) Less Clear if Qualifies: Verbal Provocation Only.
III.
Felony Murder Rule
A. Common Law Rule
1. Rule: One is guilty of murder if a death results from conduct during the commission or attempted commission of any
felony. Therefore, the felony-murder rule authorizes strict liability for a death that results from the commission of a
felony.
2. Prosecution does not need to show the elements are murder, as long as it can demonstrate that the defendant committed
the felony or attempted to commit the felony and that the felony caused a death.
B. Model Penal Code
1. MPC § 210.2(1)(b): Extreme recklessness and, thus, murder, is non-conclusively presumed if homicide occurs while
actor is engaged in one of the dangerous felony specified: robbery, rape, arson, burglary, kidnapping, etc.
C. Rationale
1. Deterrence: Deter underlying offenses through risk of additional punishment from accident results.
2. Legal-Wrong Principle: Mens rea for underlying offense should be imputed to hold offender culpable for the greater
offense. In a sense, the intent to commit a felony is transferred to the different, and more serious, social harm of a
homicide.
3. Marginal Deterrent: Make individuals commit underlying felonies more carefully to avoid liability for murder resulting
unintentionally,
4. MPC Presumption of Extreme Recklessness: Where underlying offense is sufficiently risky and serious, the risk
involved, however small, is never justified and, therefore, act of taking the risk is always reckless.
D. Inherently Dangerous Limitation
1. Rule: Certain felonies are not dangerous enough to justify imputing extreme recklessness (and therefore strict liability
for resulting murders) any time they are committed. Thus, they cannot trigger the felony-murder rule.
a) Excludes the least serious offenses.
b) MPC: Non-serious or low-risk offenses do not qualify as presumptively extreme reckless behavior.
c) Marginal Deterrence: There is limited gains in strict liability because no need to add incentive to commit
crime carefully that does not involve substantial risk.
d) E.g. If defendant picks a pocket and gun goes off, killing a victim, the defendant cannot be charged with
murder because pick-pocketing is not inherently dangerous.
2. Issue: Particularist vs. Abstract Triggering Felony Description
a) Particularist Approach (Usually Defense): Determine dangerousness of a felony by considering the facts and
circumstances of particular case, which tends to make it seem either more or less inherently dangerous.
b) Abstract Approach (Usually Prosecution): Determine dangerousness by ignoring facts of specific case and
considering elements of the offense in abstract (as a category of offense) to see whether the class of conduct
is inherently dangerous.
c) Typical Case: Armed robbery with an unloaded weapon or toy gun that looks real.
(1) Defense would argue that the particular way defendant went about the armed robbery were not
inherently dangerous enough to create high probability that death will result.
(2) But, prosecution would argue that armed robbery is on the whole an inherently dangerous category of
crime that creates serious risk to lives.
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d) People v. Phillips:
(1) Facts: Swindling chiropractor convinced parents he could cure their cancerous child without surgery
that doctors believed was necessary to save his life. Parents passed up surgery, chiropractor failed, and
child died as a result.
(2) Charge: Grand theft.
(3) Holding: Grand theft is not an inherently dangerous felony; therefore, it cannot trigger the felonymurder rule.
(a) Particularist Approach: Prosecution tries to create sub-category of grand theft called
grand theft medical fraud to demonstrate inherent danger involved in this specific case
(unusual because prosecution typically argues for abstract approach, but here argued for
choice between the two).
(b) Abstract Approach: Court chose rather to restrict potential triggering offenses for felony
murder to categorical set of crimes in the abstract without accounting for factual
circumstances, It concluded that grand-theft does not fall into a category of inherently
danger crime.
E. Merger Doctrine Limitation
1. Rule: Felony murder cannot attach to crimes where murder is an almost certain (at at least a natural) outcome of the
underlying felony itself. Felony murder only applies if the predicate felony is independent of, or collateral to, the
homicide.
a) Excludes the most serious offenses.
2. Rationales:
a) Collapse of Homicide Gradations: Allowing offenses that naturally tend to lead to death to trigger felony
murder would permit all murder charges to qualify strict liability. Without limitations, there would be
virtually no degrees of homicide or involuntary manslaughter, since prosecution could always convert them
into felony murder as felonies necessarily precede all killings (Provocation defense, too, would be
eliminated).
b) Marginal Deterrence: Certain triggering offenses are not conducive to being carried out carefully; therefore,
additional potential punishment would have only limited effect (e.g. one cannot attempt to kill carefully).
3. People v. Ireland: Assault with a Deadly Weapon
a) Facts: Defendant and his wife experienced serious marital difficulties, culminating in defendant drawing a
gun and killing his wife.
b) Triggering Offense: Assault with a deadly weapon.
c) Holding: Assault with a deadly weapon cannot be the underlying offense for a charge of felony murder
because doing so would allow prosecution to circumvent proving elements of murder in too many homicide
cases and not permit defendant to invoke provocation defense.
4. People v. Wilson: Burglary with Intent to Commit Felonious Assault
a) Facts: Defendant forcibly entered his estranged wife’s home carrying a shotgun and killed his intended
victim.
b) Triggering Offense: Burglary with intent to commit assault with deadly weapon.
c) Holding: Burglary with intent to commit assault in the dwelling cannot be considered a triggering offense
because fact that assault took place inside a dwelling to convert it to burglary is coincidental.
(1) Underlying felony cannot be a trigger because making this a murder would make every provoked
killing into felony murder.
(2) Marginal Deterrent: Cannot attempt to kill with care; therefore, additional care in carrying out felony is
simply unrealistic.
5. People v. Sears: Assault of Unintended Victim
a) Facts: Defendant forcibly entered house to assault wife, but daughter intervened and was killed instead.
b) Issue: Should felony murder apply where underling offense is burglary with intent to assault unharmed
person but unintended person is made a victim?
c) Prosecution argued that daughter’s death was accidental since victim was not the intended target, so
marginal deterrence makes sense. Felony-murder could make defendant more careful in assaults to avoid
endangering lives of others.
d) Holding: Court still applies merger doctrine, not based on rationales, but solely to precedent.. It refuses to
deny benefit of merger doctrine to someone who successfully assaults intended victim but not someone who
assaults untended victim.
6. People v. Smith: Assaultive Child Abuse
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a) Facts: Defendant committed felony of an assaultive nature.
b) Holding: Felony-murder rule inapplicable under merger doctrine because felony was essentially an assault
likely to lead to death. Just because the victim is a child and assault called child abuse does not make it
unlike previous cases in which underlying offense merged with murder. However, this would not be the
case had the abuse been a case of neglect or other non-assaultive abuse.
Causation
I. Cause-in-Fact
A. General Principles
1. But-For Causation: A defendant can only be held liable for social harms that would not have occurred had he never
committed a particular act.
2. MPC § 2.03(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 ad
b) The relationship between the conduct and result satisfies any additional causal requirement imposed by the
Code or by the law defining the offense.
B. Counterfactual Ambiguity.
C. Preemptive Causation
D. Overdetermination
1. Issue: Two independent causes, each of which alone is sufficient to bring about the harm to the victim.
a) E.g. D1 shoots V in the heart; simultaneously and independently, D2 shoots V in the head. V dies instantly.
Evidence shows either attack alone would have killed V instantly.
2. Rule: Where each act alone is sufficient to cause the result, both actors are liable fit heir conduct changed the way and
tie at which the result came about (i.e. each concurrent, sufficient causes is the but-for cause of the particular harm
occurred).
a) E.g. D1 and D2 are both liable for the killing of V where both shot him in a manner that lone would have
killed him instantly because both contributed to the manner in which he died.
b) State v. Muro:
(1) Facts: Woman arrived home to find her child badly injured from her husband’s beatings. She did not
call 911 for four hours and child wound up dying from brain trauma.
(2) Holding: Since the state could only prove a possibility that the child would have survived had the
mother made the call, the Court acquitted her for not being shown the but-for cause of the fharm.
(3) MPC Holding: Technically, the mother would be liable for the resulting death on either of two grounds:
(a) As a redundant cause, if the child would have died anyway because she altered the
manner in which the child died.
(b) As a but-for cause if the child would not have died if she had acted.
3. Limitation: Non-blameworthy acts that change superficial circumstances in which result occurs may not impose liability
(i.e. conditions for which someone is responsible, but that are not relevant to the particular harm are not a basis for
liability)
a) E.g. If a nurse turns out the lights right before a man is killed, she is not a but-for cause even though
technically the rule for holding liable sufficient, concurrent causes would apply as she changed the manner
in which death came about.
II. Proximate Cause
A. Model Penal Code
1. MPC § 2.03(2): When purposely or knowingly causing a particular result is an element of an offense, the element is not
established if the actual result is not within the purpose or the contemplation of the actor unless:
a) The actual result differs from that designed or contemplated, as the case may be, only in the respect that a
different person or different property is injured or affected or that the injury or harm designed or
contemplated would have been more serious or more extensive than that caused; or
b) The actual result involves the same kind of injury or harm as that designed or contemplated and is not too
remote or accidental in its occurrence o have a just bearing on the actor’s liability or on the gravity of his
offense.
2. MPC § 2.03(3): When recklessly or negligently causing a particular result is an element of an offense, the element is not
established if the actual result is not within the risk of which the actor is aware or, in the case of negligence, of which he
should be aware unless:
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a) The actual result differs from the probably result only in the respect that a different person or different
property I injured or affect or that the probably injury or harm would have been more serious or extensive
than that caused; or
b) The actual result involves the same kind of injury or harm as the probably result and is not too remote or
accidental in its occurrence to have a just bearing on the actor’s liability or on the gravity of his offense.
3. MPC 2.03(4): When causing a particular result is a material element of an offense for which absolute liability is
imposed by law, the element is not established unless the actual result is a probably consequence of the actor’s conduct.
B. Approaches: MPC and Common Law
1. In general, the actual result that manifests because of one’s conduct (but-for causation satisfied) must be reasonably
foreseeable in order for him to be held liable as the proximate cause of that harm.
2. MPC Approach:
a) Treats but-for causation as the exclusive meaning of “causation” in the criminal law. The code treats matters
of proximate causation as issues relating instead to the actor’s culpability.
b) Rule: The defendant has not acted with requisite culpability unless the actual result was not too remote or
accidental to have a just bearing on defendant’s liability or gravity of the offense he commits (i.e.
3. Common Law Approach: The result of one’s conduct must be reasonably foreseeable by an objective person. Strange
unforeseeable mechanisms or bizarre events may negate foreseeable and mens rea.
a) People v. Acosta:
(1) Facts: Defendant started a high-speed chase during which negligent police pilots collided with each in
helicopters, killing one.
(2) Holding: Fleeing suspect is liable for proximately causing the death of the pilot because it was
reasonably foreseeable that a pursuer would hurt himself during the dangerous pursuit.
(3) Note: Case would qualify as felony-murder because underlying offense is serious enough but not too
serious (avoids inherently dangerous and merger limitations).
b) People v. Arzon:
(1) Facts: Man set fire on fifth floor. Fire department responded but second floor fire erupted
independently. Second floor fire prevented escape and led to firefighters’ deaths.
(2) Holding: Arsonist is liable for firefighters’ deaths since his acts placed victims in the position of
particular vulnerability to the separate and independent force that actually killed them. Combination of
both causes led to death, making it difficult case.
(a) Defense Argument: Second floor fire was intervening act without which result would
never have occurred; therefore, should have broken the causal chain.
(b) But: Applying the rule of foreseeability leads to finding of causation because arsonist
could not have thought it unlikely that firefighters would get injured in fire.
C. Rationales
1. Retributivist: Causation Tracks Culpability & Blameworthiness
a) As to purpose, the means by which one brings about a result is part of their intention. Without
foreseeability, intention is meaningless because one cannot intend unforeseeable consequences.
b) As to knowledge, if causal chain is significantly bizarre, there is no substantial awareness of the possibility
that result would occur as it did.
c) As to risk-taking (recklessness or negligence), particular risk that results must be that which we impose
liability avoid, not any potential subsequent result (risk must contemplate particular harm). There is an
outer boundary of what results one can be held accountable for after taking unjustifiable risks.
2. Utilitarian: We cannot deter individuals from dangerous acts that no reasonable person could have foreseen would bring
about particular danger.
D. Issues with Proximate Casuation
1. Level of Description:
a) Issue: Any chain of events can be described so vaguely as to make it seem foreseeable or so particularly so
as to make it seem obviously unforeseeable.
(1) The more details we include, the less foreseeable events appear.
(2) The less details we include, the more foreseeable events appear.
b) Even commonplace crimes with obvious results can be described so particularly that even they start to seem
unforeseeable.
(1) E.g. Hitting another person over the hit and cracking his skull appears to have an obviously foreseeable
result of potential death. However, we could describe it as unforeseeable that skull would crack in a
particularly strange medically obscure way as if the surgeon were talking.
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c) People v. Warner-Lambert:
(1) Facts: Presence of gas and liquid nitrogen in industrial facilities created substantial risk of possible
explosion of which the managers of the facilities were made aware. The gas exploded, killing a number
of people, but exactly what caused the spark was unknown.
(2) Holding: There cannot be liability because insufficient evidence of the triggering cause so as to make
proximate causation a problem because unable to determine if the cause was foreseeable or not.
(3) Levels of Description:
(a) Liability: It was clearly foreseeable that the gas would eventually ignite and cause a
harmful explosion.
(b) No Liability: It was not foreseeable that particular event that caused the spark would
occur in the particular manner it did so as to cause the particular explosion (e.g. possible
that crazy homeless person broke in and lit a match which accidentally caught fire).
d) People v. Kibbe:
(1) Facts: Defendants abandon their intoxicated robbery victim in subfreezing temperature on the side of a
road. He died after being hit by a truck while walking on the road.
(2) Holding: Defendants are liable for murder because by leaving drunk man on the side of road, defendant
could foresee him being hit by a care.
(3) Levels of Description:
(a) Liability: It is foreseeable that drunk person would be hurt while walking on dark road
when it is called out.
(b) No Liability: It is unforeseeable that a drunk person would wander into oncoming traffic
when the road he was on had no other cars on it.
(i) It would obviously have been unforeseeable and no proximate causation if the
drunk person had been hit by a plane landing on the road in an emergency.
2. Hypothetical Wishes:
E. Exceptions: Liability Despite No Foreseeability
1. Transferred Intent:
a) Rule: If attempt to commit a crime against one person, but unintentionally and unforeseeably harm another
person, initial intent is transferred to satisfy proximate causation and mens rea.
b) MPC 2.03(2)(a): Transferred Intent Despite Unforeseeability.
(1) Rule: When purpose or knowledge is required for a particular result, unforeseeability does not prohibit
liability if the actual result differs only with respect the victim or property.
c) Paradigmatic Case: D shoots at intended victim, but bullet misses and hits unintended victim. The intent is
transferred and D is liable for murder. Intuitively we want to hold the individual liable for murder not just
manslaughter despite the fact that unintended victims are unforeseeable; therefore we transfer the intent to
find sufficient murder mens rea.
d) Complication (Anomalous Result of Transferred Intent): Where result is not foreseeable, individuals I liable
where unintended victim is hurt, but not where intended victim is hurt.
(1) E.g D shoots at intended victim but unleashes a herd of buffalo that kills the intended victim instead.
There cannot be liability for murder because the causation is not foreseeable and, therefore, D is not the
proximate cause of the death.
(2) But: D shoots at intended victim but unleashes a herd of buffalo that kills an untended victim instead.
There is liability because the intent is transferred and lack of foreseeability is overcome, therefore,
proximate cause is not a barrier to liability.
(3) What about where both intended and unintended victims are killed by the herd of buffalo?
(a) Perhaps if we disregard the causal chain for the unintended victim, we should do so
similarly with the intended victim.
(b) Or, could utilize idea of “Using Up” Intent:
(i) If intended victim is hit first: potentially intent is used up and cannot be
transferred to unintended victim.
(ii) If unintended victim hit first: potentially transferred intent is maxed out and
cannot lead to liability for the intended victim.
2. Thin-Skull:
a) Rule: If victim is especially vulnerable, criminal is liable for the results despite the particular vulnerability
not being foreseeable (like legal-wrong doctrine in that by committing crime, one accepts potential for more
serious results coming about even if they are unforeseeable).
b) Critical Element: Temporality
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(1) Prior conditions that afflict a particular victim, even if unforeseeable by the defendant, result in liability
because he takes victim as they are.
(2) However, subsequent conditions do not result in liability because criminals are not proximately the
cause of afflictions of victim that arise after the fact.
(3) E.g. Criminal is liable where strange disease aggravates injury from crime, but not where hospital
equipment malfunction does.
F. Exceptions: No Liability Despite Foreseeability (Defenses)
1. Voluntary Intervening Act:
a) Rule: Even if a result is foreseeable to the original actor, another person’s subsequent freely chosen act that
directly produces result breaks the chain of causation and renders the initial actor not liable.
b) Rationale: Autonomy and Free Will – Individuals, even “victims,” retain the right to decide their fate on
their own for which the actor that contributes to the particular foreseeable result should be made responsible.
(1) E.g. Where a husband threatens to kill himself if his wife leaves him, we do not hold the wife liable for
leaving because we should not permit individuals to hold others hostage from threat of liability for
foreseeable results.
c) Caveat: If intervention happened prior to the act and is only existing condition rather than active
intervention, then may not qualify as voluntary intervening act sufficient to break causation.
(1) E.g. Stalled truck into which reckless driver crashed does not qualify as intervening cause; therefore,
the driver is still liable for resulting deaths of his reckless driving.
d) People v. Kevorkian:
(1) Facts: Terminally ill patients want to die. Kevorkian set up suicide mechanisms that victims activated
themselves in order to kill themselves.
(2) Holding: Patients’ own decision to activate the machine and kill themselves prevents liability despite
fact that suicide was obviously foreseeable result of setting up the machines.
(a) Critical Distinction: Providing the Means for Suicide vs. Actually Taking Action to Kill
Patients.
e) People v. Campbell:
(1) Facts: Man contemplating suicide while intoxicated was given gun and encouragement to follow
though by defendant. The man then did actually commit suicide.
(2) Holding: Although the suicide was foreseeable result of the actions defendant took, defendant is not
liable because suicide victim voluntarily pulled the trigger and thereby negated proximate causation.
f) Complications:
(1) Impaired Voluntariness:
(a) Rule: Intervening act does not break the causal chain where it is not the result of free,
rational decision-making; therefore, initial actor potentially still liable.
(b) Stephenson v. State:
(i) Facts: Defendant abducted woman, deprived her of food and subjected her to
other abuses. While accompanied by accomplice, victim bought and took
poison to commit suicide.
(ii) Holding: The abuses made her crazy, rendering suicide decision, made under
captor’s control, not the result of rational decision-making. Therefore, abductor
is still liable because there is no voluntary intervening act to break the causation.
(iii) Note: This is an outlier case because typically psychic injury leading to suicide
is insufficient to render actor liable, despite foreseeability (e.g. Madoff victims’
suicide).
(c) Compulsion of duty is a form of impaired voluntariness.
(i) E.g. Police officer chasing fleeing suspect gets killed or kills innocent third
party. Suspect is liable in both cases because officer has duty to give chase.
Therefore, choice to pursue is not voluntary intervening act.
(2) Consent:
(a) Rule: Victim’s failure to resist or outright consent after the accused commits his final act
may still break causal chain enough to render them not liability, despite foreseeability.
(i) Test: Slow-motion the events to see whether the victim freely submitted to the
action of defendant. If they could have stopped the result, seems more like
consent that may make proximate causation less likely to be found.
(b) E.g. If Kevorkian actually triggered the poison, victim staying in place and allowing it to
take effect may qualify as voluntary intervening consent so as to negate proximate
causation.
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(3) Intervening Omissions:
(a) Rule: Intervening omissions are less likely to break the causal chain so as to make
defendant not the proximate cause of the result because failing to act allows the normal
effect to occur (not technically intervening at all).
(i) Victim’s Omissions: More likely to intervene and break causal chain because
they are exercising free will.
(ii) Third Party’s Omissions: less likely to intervene and break the causal chain.
(b) Rationale: Normal cause still takes effect in uninterrupted way that it is expected to when
individual fail to act in a manner that could have avoided the harm altogether.
(c) E.g. Where D shoots victim who then refuses blood transfusion that could save their life.
More likely that victim’s omission prevents liability of the initial actor because the victim
is in a sense deciding his own fate.
(d) E.g. Where D shoots victim and ambulance driver/doctor refuses to treat, which results in
death. Less likely that third party’s omission prevents liability because victim is not
manifesting free will, rather someone else who is responding to defendant’s conduct is.
(4) Self-Risking Behavior:
(a) Rule: Voluntary assumption of risk by victim (recklessness) may or may not break the
causal chain, depending on whether it more so resembles intentionally self-injurious
behavior (does negate proximate causation) or negligent behavior (cannot negative
proximate causation).
(i) For Liability: Extreme self-risking behavior (reckless) is equivalent to
intentionally inflicting harm on oneself (e.g. suicide).
(ii) Against Liability: More moderate risk-taking is not so out of the ordinary as to
break causation because it resembles negligence.
(b) E.g. Drag Racing: One drier dies and the other participating driver is charged with
manslaughter. Courts split, but typically recklessness is not enough to prevent liability
on the part of other causes.
(c) Complication: Other-Risking Behavior (Third-Party Victims)
(i) Where an innocent third party is a victim, intentional recklessness is even less
likely to break the causal chain as it does not at all resemble cases of self-injury
of suicide.
(ii) E.g. Drag racing that results in one driver killing an innocent third party. Can
the other participating driver be held liable for the manslaughter? Most likely
because proximate causation is sufficient because third party did not risk their
own life.
Complicity
I. Mens Rea
A. Model Penal Code
1. MPC § 2.06(3): A person is an accomplice of another person in the commission of an offense if:
a) With the purpose of promoting or facilitating the commission of the offense, he
(i) Solicits such other person to commit it; or
(ii) Aids or agrees or attempts to aid such other person in planning or committing it;
or
(iii) Having a legal duty to prevent the commission of the offense, fails to make
proper effort so to do; or
b) His conduct is expressly declared by law to establish his complicity.
B. Mens Rea Requirement: Purpose / Specific Intent
1. Rule: An accomplice must have intended to assist the primary party to engage in the conduct that forms the basis of the
offense. A lesser mens rea, such as knowledge that underlying offense will occur or recklessness as to the possibility are
not sufficient to uphold complicity liability.
2. Complicity is where the distinction between purpose and knowledge is crucial, because one creates liability the other
exonerates.
a) State v. Gladstone:
(1) Facts: Undercover cop tries to buy drugs from defendant, who refers him to another buyer. Defendant
is charged with being an accomplice to the sale of drugs.
(2) Holding: Defendant is not guilty because he lacked the purpose to aid the sale as he did not encourage
or express support to seller. Knowledge that sale would occur and that he is aiding it is insufficient.
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(3) Note: Defendant could not be charged as accomplice to purchase because no underlying crime occurred
as purchaser (ineligible as principal). Nor could he be charged as principal because actus reus
requirement would have to be stretched too far.
b) Hicks v. United States:
(1) Facts: Stan Rowe is about to shoot Colvart. Hicks shouts “Take off your hat and die like man.” Rowe
shot him. Both rode away together, but Hicks claimed that he only did so out of fear fro his own life.
(2) Holding: Hicks not liable as an accomplice to murder because not clear that he intended words to incite
the shooting (i.e. recklessness as to potential result is insufficient).
3. Rationale: Because actus reus is more attenuated, the mens rea requirement is stricter. Since there is always a
voluntary intervening act, without accomplice liability there could be no prosecutions of those who assist in crime.
a) Autonomy Principle: We do not impose liability on individuals for the acts of others because free will is
premise upon which criminal liability depends (i.e. “I do what I am entitled to do and proceed under
assumption that others are law abiding, so I should not be liable for their wrongdoings”). Intuitions are
similar to sentiment that leads us not to impose liability on bad Samaritan despite crucial causal element in
wrongdoing.
C. Departures From Strict Purpose Requirement
1. Foreseeable Consequences Doctrine:
a) Rule: Accomplices responsible for crimes they naturally, probably, and foreseeably put in motion when
purposefully acting to bring about different crime. Therefore, if one intends to promote a particular crime,
but a different crime results then as long as greater crime is foreseeable, there is accomplice liability.
b) Consequence: Expands culpable mens rea for accomplices to include recklessness, knowledge, and purpose.
However, they can be convicted for underlying offenses that require intention.
c) Rationale: More honest approach to culpability for individuals who intuitively should be held liable as
opposed to merely recharacterizing their conduct as purposeful.
d) People v. Luparello:
(1) Facts Defendant tells thug friends to get information regarding whereabouts of ex-wife from victim “at
any cost.’ Thugs end up murdering the person with information.
(2) Holding: Defendant is liable as accomplice for murder because the resulting crime was reasonably
foreseeable extension of the intended crime he aided.
(a) Recharacterization Avoided: Without doctrine, defendant may still be liable if assistance
is characterized as intentional due to having reasons to suspect individuals were capable
of murder.
(3) Dissent: Defendatn should be liable only for involuntary manslaughter. More sensible to have
gradations of accomplice liability when mens rea requirement is relaxed.
(a) Perverse Consequences Of Yes/No Accomplice Liability: Liability for murder despite
only acting recklessly.
(b) More tenuous connection harm should necessarily lead to lesser form of liability.
(c) E.g. Giving someone their axe back suspecting it will be used in crime. Intuitively person
should be less liable than accomplice.
2. Conduct Crimes vs. Result Crimes:
a) MPC § 2.06(4): When causing a particular result is an element of an offense, an accomplice in the conduct
causing such result is an accomplice in the commission of that offense, if he acts with the kind of
culpability, if any, with respect to that result that is sufficient for the commission of the offense.
b) Rule: For result crimes, accomplice is liable as long as he has the mens rea required for the principal and
intentionally encourages the conduct that leads to the result. However, for conduct crimes, strict purpose
requirement remains.
c) Definitions:
(1) Conduct Crime: No clearly identifiable social harm must result from the actus reus because the conduct
itself is aberrant (e.g. driving under the influence or statutory rape).
(2) Result Crime: Offense is defined in terms of the result, rather than by how the result actually comes
about (e.g. murder or destruction of property).
d) Rationale:
e) State v. McVay:
(1) Facts: Ships boiler exploded. Captain and engineer were convicted of manslaughter. Owner on trial as
accomplice for hiring them and telling them to load boiler with excessive steam.
(2) Holding: Defendant owner is liable as accomplice because he was reckless as to the deadly outcome.
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(3) Rule: Because manslaugher is a result crime with reckless mens rea requirement, accomplice need only
be reckless in order to be guilty.
II. Actus Reus
A. Model Penal Code
1. MPC § 2.06(2)(c): A person is legally accountable for the conduct of another person when he is an accomplice of such
oter person in the commission of the offense.
2. MPC § 2.06(3)(a): A person is an accomplice of another person in the commission of an offense if with purpose of
promoting or facilitating the commissions of the offense, he:
(a) Solicits such other person to commit it; or
(b) Aids or agrees or attempts to aid such other person in planning or committing ir; or
(c) Having a legal duty to prevent the commission of the offense, fails to make proper effort
so to do.
B. Rule: Physical conduct, psychological influence (insights, solicitation, encouragement), or assistance by omission when
there is a duty to intervene all satisfy the actus reus requirement even when they do not cause in fact or proximately cause
the crime.
1. Judge Tally Case:
a) Facts: Judge tries to prevent telegram warning victim tat his relatives want to kill him. Operator never
decided whether or not to deliver the warning. Battle ensued anyway, which led to the death of the person
whose warning the judge sought to prevent.
b) Holding: Despite not being the but-for cause of the crime, judge still held liable as an accomplice because he
deprived victim of some chance of life.
c) Notes:
(1) Judge is probably liable under the MPC, as well, because he attempted to aid.
(2) But, may not be liable under common law because aid was ineffective.
C. Overdetermination:
1. Issue: Collective action by group to facilitate crime where each member only makes a slight contribution. It is
impossible to determine the impact, if any, of each individual contribution.
2. Common Law: Ineffective vs. Redundant
a) Redundancy Rule: If each person’s act would have influenced the crime, it is of no consequence that the
result is overdetermined. After subtracting each contributing member and only leaving the defendant, if
defendant would make a difference then he is an accomplice (e.g. shouting encouragement along with a
group of others who drown out voice)
b) Ineffective Rule: if contribution is irrelevant not because of concurrent causes, but rather because of some
other circumstance, then individual is not an accomplice. After subtracting other members, if person still
would not have had influence on the crime, there can be no accomplice liability (e.g. shooter is deaf so that
he cannot hear defendant’s shouts of encouragement).
c) Complication: Once we began subtracting elements from the situation, what is to stop us from subtracting
the conditions that make encouragement ineffective in order to hold person liable as an accomplice (e.g. if
we can subtract members of a group, why cannot we subtract principal’s deafness or a wall that prevents
encouragement from being hear?).
d) Wilcox v. Jeffery:
(1) Facts: Reported greeted musician at airport, bought a ticket for illegal concert, attended it, applauded,
and wrote a positive review of it. Owners of the venue and the musician were guilty as the principals.
(2) Holding: Defendant is liable as an accomplice because if all other audience members subtracted, he
would have had influence on the underlying offense. Each individual was redundant, but collectively
there were not.
(3) Note: Same justification could potentially hold each member of the audience liable as an accomplice.
3. MPC Approach: No distinction between redundancy and inefficacy. Instead, all “attempts” to aid or facilitate establish
accomplice liability.
a) Problem: Attempt to avoid line-drawing unsuccessful because we still do not hold liable people who know
their “attempts” will be completely ineffective. Still must try to differentiate between different ways of not
having an effect. But, it would eliminate complicity doctrine not to impose liability for redundant or
overdetermined causes.
III.
Relationship of Liabilities of Parties
A. Model Penal Code: General Principle
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1. MPC § 2.06(1): A person is guilty of an offense if it is committed by his own conduct or by the conduct of another
person for which he is legally accountable, or both.
2. Effect: Equates accomplices and principals by making them guilty of the same crime.
3. Degrees of participation have effect only in sentencing not in terms of the crimes charged.
B. Innocent Instrumentality Rule:
1. Exception to the usual requirement of a guilty principal, since accomplice liability is only derivative in nature. Here, the
accomplice is more like the guilty principal than is the innocent person who he causes to commit the actual act.
2. MPC § 2.06(2): A person is legally accountable for the conduct of another person when:
(1) Acting with the kind of culpability that is sufficient for the commission of the offense, he causes an
innocent or irresponsible person to engage in such conduct; or
(2) He is made accountable for the conduct of such other person by the Code of by the law defining the
offense.
3. Quasi-Principal Rule (a): If one causes an innocent or irresponsible person to engage in illegal conduct, there is liability
despite no guilt on the part of the principal.
a) E.g. If D coerces X to commit a theft by threatening X’s life, X will be acquitted of larceny on ground of
duress. However, X is directly liable for committing the crime through D.
4. Code Rule (b): Attempt to avoid general provisions and complications with complicity liability where statute expressly
provides for it (e.g. statute making parents guilty when child violates a curfew). Although it tries to preempt general
parts of complicity, still can argue whether or not a statute was meant to negate other element of the complicity
doctrine.
C. Accomplice Incapacity:
1. MPC § 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 incapacity.
2. Rule: Even when an accomplice is actually incapable of violating the statute himself, he can be held liable as an
accomplice for the underlying crime.
a) E.g. Statute prohibits public officials from accepting bribes. Defendant helps him take a bribe but is not a
public official himself. Even though he is not capable of being charged directly as principal, he can be held
as accomplice.
b) E.g. Russian spy getting classified material from American citizens could be held guilty as an accomplice to
treason despite the statute requiring that treason by committed by an American citizen.
D. Accomplice Victim Non-Liability & Accomplices Incident to Crime:
1. Exception to accomplice Liability where all elements of complicity are established, but no guilt anyway.
2. MPC § 2.06(6)(a): Unless otherwise provided by the Code or by the law defining the offense, a person is not an
accomplice in an offense committed by another person if he is a victim of that offense.
3. Victim Rule: If potential accomplice is within group of individuals a statute sought to protect, he cannot be held liable
as accomplice.
a) E.g. If underage girl encourages intercourse with older male, she is still not an accomplice to statutory rape.
b) E.g. Blackmail victim who acquiesces in threats by giving money to blackmailer cannot be liable as
accomplice to blackmail.
4. MPC § 2.06(6)(b): Unless otherwise provided by the Code of by the law defining the offense, a person is not an
accomplice in an offense committed by another if the offense is so defined that his conduct is inevitably incident to its
commission.
5. Incident Rule: Where crime cannot occur with out another person’s involvement, that other person is not an accomplice.
a) E.g. Purchaser of drugs is not an accomplice to their sale because sale necessarily requires someone buying.
b) E.g. Person who solicits a prostitute is not an accomplice to prostitution because prostitution assumes there
is someone soliciting sex.
E. Missing or Immunized Principal:
1. MPC § 2.06(7): An accomplice may be convicted on proof of the commission of the offense and of his complicity
therein, though the person claimed to have committed the offense has not been prosecuted or convicted or has been
convicted of a different offense or degree of offense or has an immunity to prosecution or conviction or has been
acquitted.
2. Rule: Principal need not have been proven guilty or punished in a separate proceeding in order for an accomplice to be
held liable. In fact, even if the principal is not eligible for conviction or acquitted separately, accomplice may still be
liable if in his proceeding commission of the offense is demonstrated as his participation therein.
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3. Issue: Whether an exemption qualifies as immunity or just simply not crime having occurred could change whether or
no the accomplice can be held liable.
a) E.g. Kidnapping statute exempts from prosecution parents of the children who are abducted. Father hires a
private investigator to help him kidnap his kid, which the private investigator does. Is private investigator
an accomplice?
(1) NO: Father did not commit any crime under the statute, so there is no complicity liable as there is not
underlying guilty principal, or
(2) YES: Father is just exempted from prosecution, which is a type of immunity, so that there can be
accomplice liability.
F. Feigning Principal:
1. Common Law Rule: Acts of feigned principal cannot be imputed to targeted defendant for purposes of charging him as
an accomplice.
2. State v. Hayes:
a) Facts: Defendant proposed to X that he join defendant in the burglary of a store. D was unaware that X was
a relative of the owner who agreed to plan to ensnare the defendant. Defendant assisted X into the building
and took property handed to him. Defendant was arrested and charged as accomplice to burglary.
b) Holding: Since the principal is not guilty of burglary because he had approval to enter the store, defendant
could not be an accomplice (missing a guilty principal and crime).
(1) MPC §2.06(2)(a): Feigned principal may be innocent agent; however, that is unlikely because defendant
was duped rather than him duping the principal.
(2) MPC § 2.06(7): If feigned principal cannot be prosecuted, could classify him as either immune (which
permits complicity) or as simply having not committed a crime (which does not permit complicity).
IV.
Hypothetical Problems
A. Regina v. Richards:
1. Facts: Wife hired men to beat husband into the hospital. They attacked him but did not badly injure him. The men were
only convicted for misdemeanor assault because victim was not injured severely enough. Can the wife be liable for the
greater assault?
a) No principal liability because proximate causation broken by voluntary intervening act.
b) MPC § 2.06(3)(a): Potential difficulty because no principal committed the greater offense.
c) MPC § 2.06(7): Immunity may encompass partial non-liability, such as only committing lesser offense.
B. E.g. Foreman on construction site ordered his subordinates to do something without the proper, required safety
precaution. As a result, an explosion occurs and the foreman is injured, while others die. Is foreman liable for
manslaughter?
1. No principal liability because proximate causation broken by voluntary intervening acts of the subordinates.
2. MPC § 2.06(2)(a): Foreman brought pressure to bear on agents, which may impair voluntariness so as not to break
proximate causation because agents are not responsible.
3. MPC § 2.06(6)(a): As a victim . . .
a) Foreman may be liable for manslaughter because the statute is not intended to protection him specifically
since he did not die.
b) Foreman is not liable as an accomplice for violating the safety regulation because all employees were meant
to be protected by the statute including the foreman himself.
Conspiracy
I. Elements
A. Actus Reus
1. Agreement: Expressed or Tacit/Implied
2. Overt Act in Furtherance of the Conspiracy (depends on jurisdiction, but required for misdemeanor or third-degree
felony in MPC no for first or second degree felonies)
B. Mens Rea
1. Intent to Agree
2. Intent to Pursue Unlawful Object
II. Model Penal Code
A. MPC § 5.03:
1. A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or
facilitating its commission he:
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a) Agrees with such other person or persons that they or one or of more of them will engage in conduct which
constitutes such crime or an attempt or solicitation to commit such crime; or
b) Agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or
solicitation to commit such crime.
2. If person guilty of conspiracy knows that a person with whom he conspires to commit a crime has conspired with
another person with whom he conspires the same crime he is guilty of conspiracy with such other person or persons,
whether or not he knows their identity, to commit such crime.
B. Rules:
1. Four Types of Agreements:
a) Commit an offense
b) Attempt to commit an offense
c) Solicit another to commit an offense
d) Aid another in planning or committing offense
2. A person is guilty of conspiracy unless conspiratorial agreement was made with purpose of promoting or facilitating the
commission of the substantive offense.
3. To be guilty, object of the agreement must have been to bring about prohibited result or cause prohibited conduct to
occur, even if such purpose is not an element of the target offense.
a) E.g. If D1 and D2 agree to burn down an occupied building for the insurance proceeds and in the ensuring
fire an occupant dies, they are not liable for conspiracy to commit murder, unless another object of their
agreement was to take human life.
4. A person cannot be convicted for conspiracy, unless conspiracy includes a crime not yet attempted or committed. If
substantive crime has occurred or has been attempted, it is merged with conspiracy.
5. Although prosecution may not convict for conspiracy in absence of proof of an agreement it is not a defense that
coconspirators have not been convicted or have been acquitted. Therefore, there can be a charge of conspiracy against
one person.
III.
Pinkerton Doctrine
A. Rule
1. In addition to conspiracy for liability, there is liability for crimes conspirators commit in course of conspiracy that are
foreseeably the product of the agreement (parallels the Luparello doctrine for complicity).
2. The doctrine holds each coconspirator responsible for the substantive offenses in furtherance of the conspiracy even if
they did not participate directly in the offense if it:
a) Falls within the scope of the conspiracy, or
b) Is foreseeable consequence of unlawful agreement
IV.
Purposes and Problems of Conspiracy
A. Purposes
1. Group Attempts
a) Actual criminal conduct need not occur, since there can be liability for conspiracy only for entering into the
unlawful agreement before substantive offense is attempted or completed.
2. Organized Crime
a) Where individuals oversee criminal network but do not necessarily get their hands dirty, they can be
prosecuted for conspiracy.
3. Ease Prosecutorial Burden
a) Prosecutors have the ability to reach farther back (almost without limits) than the immediate crime in order
to include actions that are part of a basic criminal network and impose liability on more actors than would
otherwise be possible. It too allows more preventive intervention before substantive crime gets close to
being attempted or completed.
B. Issue: Constraining Foreseeability
1. There is a difficulty in describing the level of detail one must foresee in order to be guilty of conspiracy to commit acts
that are more and more attenuated from one’s direct participation in the criminal agreement.
2. Where one party to the agreement is not criminal, conspiracy doctrine deals with liability in a similar fashion as the
immunity provision for complicity.
a) MPC § 5.04(1): It is immaterial to the liability of a person who solicits or conspires with another to commit
a crime that:
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(a) He or the person whom he solicits or with whom he conspires does not occupy a
particular position or have a particular characteristic which is an element of such crime, if
he believes that one of them does; or
(b) The person whom he solicits or with whom he conspires is irresponsible or has an
immunity to prosecution or conviction for the commission of the crime
b) Rule: Defendant can be liable for conspiracy where for some reason he or a coconspirator would not be
eligible for a charge for completing the underlying agreed upon offense.
3. We would expect conspiracy doctrine to deal with coconspirator victims and crimes that necessarily have more than one
participant in a similar way as the complicity doctrine, but the MPC is silent on these matters.
Attempts
I. Model Penal Code § 5.01
1. 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 engaged in conduct which would constitute the crime if the attendant circumstances were as he
believed them to be; or
b) When causing a particular result is an element of the crime, does or omits to do anything with the purpose of
causing or with the belief that it will cause such result without further conduct on his part; or
c) Purposely does or omits to do anything, 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.
2. Conduct shall not be held to constitute a substantial step unless it is strongly corroborative of the actor’s criminal
purpose.
II. Mens Rea
A. Specific Intent Requirement
1. Rule: In order to be guilty of an attempted crime, an actor must (1) intentionally commit the acts that constitute the
actus reus of an attempt (bring her in proximity to commission) and (2) perform those acts with the specific intention of
committing the target crime.
a) E.g. D, a hunger, fires a gun in the woods, wounding V. D is guilty of attempted murder if: he intentionally
pulled the trigger and did so intending to kill V.
b) State v. Smallwood:
(1) Facts: HIV-infected defendant had intercourse with women without a condom. He was charged with
attempted murder.
(2) Holding: D is not guilty of attempted murder because he only acted recklessly as to the possibility that
he would cause the deaths of the women, rather than with the intent to actually kill them. To be guilty
he must have had intercourse with them so that they would contract the disease.
2. Rationale: Indeterminacy of Potential Victims
a) Since the actus reus must meet a lower bar and is more attenuated for attempts, there is a concern about
potentially limitless number of “near misses” that someone could be held liable for attempting to harm.
b) Cannot attempt to commit a reckless act (counterintuitive).
(1) E.g. Extremely reckless driver heading up hill who attempts to pass in the wrong lane without being
able to see what is around the bend. Technically he attempted to commit manslaughter against any
person potentially on the road. We are unable to limit the number of potential victims.
c) However, common law attempt liability, like complicity, also rules out knowledge as a potential mens rea
for liability and holds fast to purpose as the only underlying mens rea that can satisfy attempt liability.
(1) MPC, though, permits knowledge to satisfy the mens rea requirement for attempts in § 5.01(1)(b)
(2) E.g. Assassin who plants bomb hoping to kill the queen and expecting to kill the coachmen but not
desiring to is only liable for attempt murder of the queen if the bomb does not go off under common
law. However, under MPC, he would be liable for attempted murder as to both.
III.
Actus Reus
A. Common Law Tests:
1. First Act Test: Firm resolve and overt act
2. Unequivocal Act Test: Enough action, which alone makes intent obvious (res ipsa)
3. Substantial Act Test: Beyond mere preparation but not first or last act needed for completed offense
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4. Dangerous Proximity Test: Action must come or advance very near to the accomplishment of the crime as to make
danger of success very great
a) State v. Rizzo:
(1) Facts: Four armed men drove around looking for victim with intent to rob him on the way out of the
ATM. Police arrested the men before they found their intended victim.
(2) Holding: Although the police obviously did good police work, the men were not liable for attempted
robbery because in the absence of the victim, the suspects were not dangerously close to success.
5. Last Act Test: All the steps actors believes are within his power to complete offense must be done
a) Seems underinclusive because while the test is certain to hold only those who are liable guilty, it will not get
people who we want to hold liable prior to them taking last act.
B. Model Penal Code § 5.01(1):
a) There is attempt liability if defendant commits last act possible, but there is a missing required attendant
circumstance, yet D believes the circumstance to exist (e.g. D encourages his friend to engage in intercourse
with girl that he thinks is underage but actually is not).
b) Last Act: When no further conduct is required of the defendant to complete the attempted crime and
everything within his power has been done, defendant is liable for an attempt (always sufficient except
where final act and last act are same, but not necessary).
c) Substantial Act: Defendant has done a lot but not all that is within his power to complete the attempted
offense. The conduct on its own must be strongly indicative of intent so as to support an inference that
defendant has required mental state.
C. Theoretical Arguments for Earlier or Later Attempt Liability
1. For Imposing Liability Later:
a) Conditional Intent: We all have circumstances under which we’d commit a particular crime; therefore we
should let the conduct progress beyond point where intent is just conditional.
b) Self-Defense:
c) Deterrence: If all cost is imposed after first step. There is not reason to abandon after it has been committed
because liability does not change so might as well take chance in completing the offense (but, we have
abandonment defense that takes care of the issue).
2. For Imposing Liability Later:
a) Utilitarian: Allows police to effectively intervene before crime actually occurs.
b) Long Gestation with Quickly Asserted Act: With early intervention, we may not be able to effectively stop
crime that only requires one step (i.e. the last act is the only act).
D. Solicitation:
1. Common Law: If principal did not make attempt, then solicitor cannot be charged with attempt (i.e. solicitation, like
complicity, requires liability piggy back on the principal’s liability).
a) State v. Davis:
(1) Facts: D hired officer who posed as assassin to kill girlfriend and did all in his power for “assassin” to
complete crime. Officer did not attempt any crime.
(2) Holding: Since the officer did not commit any act even close to an attempt, solicitor cannot be liable for
attempted murder despite having completed the last act possible (i.e. there needs to be an attempt by
principal to establish solicitation liability).
2. MPC: As long as solicitor has completed substantial step, whatever intermediary does is of no consequence to attempt
liability.
a) MPC §5.02(1): A person is guilty of solicitation to commit a crime if with the purpose of promoting or
facilitating its commission he commands, encourages or requests another person to engage in specific
conduct which would constitute such crime or an attempt to commit such crime or which would establish his
complicity in its commission or attempted commission.
b) MPC § 5.04(1): Immaterial to liability to solicitor if person he solicits does not occupy a particular position
or have particular characteristic which is element of such crime if he believes one of them does or the person
whom he solicits is immune or irresponsible.
IV.
Defenses
A. Abandonment
1. MPC § 5.01(4):
When the actor’s conduct would otherwise constitute an attempt, it is an affirmative defense that he abandoned his effort to
commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary
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renunciation of his criminal purpose. The establishment of such defense does not, however, affect the liability of an
accomplice who did not join in such abandonment or prevention.
Renunciation of criminal purpose is not voluntary if it is motivated in whole or in part by circumstances not present or
apparent at the inception of the actor’s course of conduct, which
increase the probability of detection or apprehension or
which make more difficult the
of
the criminal purpose. Renunciation is not complete if it is motivated by a decision to
postpone
the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar
objective or victim.
2. Rules: Only after actions are enough to constitute an attempted crime can one claim a defense (without offense, no
defense)
a) Actor must desist voluntarily and completely for benign reasons (i.e. he must decide to do the right thing on
his own, rather than be forced into doing it through other circumstances that arise).
b) It does not qualify as abandonment if desisting is motivated by:
(1) Unexpected Resistance (e.g. mugger attempts knifepoint mugging, victim pulls out gun and mugger
runs away)
(2) Lower Rewards than Anticipated (e.g. mugger attempts knifepoint mugging, but leaves after only
seeing a few dollars in victim’s wallet)
(3) Circumstances Making Arrest More Likely (e.g. bank robber cases joint and is about to pull out weapon
when he realizes that there is more security than he expected so he leaves)
(4) Decision to Postpone Crime (e.g. before going into house, burglar decides to come back later at a better
time to commit the crime)
3. Issues:
a) Where is the point after which an attempt cannot be taken back or renounced? It is difficult to find a
principled distinction to identify when defense is and is not available (e.g. defendant stabs victim numerous
times, starts to leave because he seems death, then the victim mutters “I’m still alive.” Defendant then
continued to leave despite having opportunity to completed the murder).
b) Emphasis on Consequences: Manifesting bad consequences provides clear stopping point for renunciation
without which anyone could feel remorse after the fact and claim renunciation. We accept luck as an
inevitable feature to distinguish between situations where renunciation is available or not (parallels the role
luck plays in completed vs. attempted crimes)
(1) E.g. Two people set bombs, both have changes of heart, but only one successfully defuses it. Only the
person who did so successfully (avoided consequences) can claim renunciation, while the other cannot
because bad results have come about.
c) Emphasis on Intent/Purpose Requirement: No longer wanting to commit act, but expecting it to occur, is like
renunciation of the attempt or negating purpose (i.e. purpose requirement is essentially, degenerate extreme
case of abandonment by reducing scope of criminal target).
(1) E.g. Defendant initially wants to kill both coachman and queen when he plans a bomb. He then feels
bad about coachman so he moves the bomb to increase chance coachman survives.
B. Impossibility:
1. Factual Impossibility: Not a defense because in a way all attempts are cases of factual impossibility. If we permitted
factual impossibility to qualify as a valid defense, there would be no attempt liability (i.e. the exception would swallow
the rule).
2. Non-Factual Impossibility: Possible Defenses
a) Genuine Legal Impossibility: MPC & Common Law
(1) MPC § 5.01(1)(a): A person is guilty of an attempt when he purposely engages in conduct which would
constitute the crime if the attendant circumstances were as he believes them to be.
(2) Rule: Mistaken belief about the law is irrelevant in determining attempt liability; therefore, if the
defendant believes himself to be breaking the law but actually is not, he is not liable for an attempted
crime. Defendant is off the hook. (i.e. circumstances do not include beliefs about the law).
(3) Paradigmatic Case: Defendant believes he is doing a crime, but actually is not.
(a) E.g. Defendant sees drowning baby who he could easily save. He thinks he has a duty to
rescue the baby but actually does not. Failure to rescue not a crime, regardless of his
belief that it is.
(4) Rationale:
(a) Retributivist: Blameworthiness is determined by the actual societal moral code by which
everyone’s conduct is judged, not by subjective beliefs of what constitutes a wrongdoing.
(b) Utilitarian: No behavior occurred that we wish to deter.
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b) Intent Impossibility: Only Common Law, not MPC
(1) Common Law Rule: Purpose requirement is carried through to attendant circumstances; therefore if
defendant did not care about a particular circumstances that is relevant to criminality of conduct, he is
not liable for an attempt.
(a) Paradigmatic Case: Defendant has belief that conduct is a crime, but mistaken about key
fact upon which illegality and culpability depends (purpose for conduct, but not to aspect
of it that makes it a crime).
(b) E.g. Jaffe: D buys cheap goods believing them stolen, but they actually are not. He is
held not guilt of attempt to purchase stolen goods because he had no purpose as to the
goods being stolen, he only wanted them cheap.
(c) E.g. Oviendo: D sold undercover agent sugar believing that it actually was heroine. He
is not guilt for attempted drug sale because no purpose as to product being a drug, only to
make quick money.
(d) E.g. Statutory rape case in which girl is not a minor, but D believes she is. D is not guilty
for attempted statutory rape because he had no purpose as to the girl being underage,
only to having intercourse.
(2) MPC: Intent impossibility is never a defense. Purpose requirement is not carried through to attendant
circumstances.
(a) E.g. Dlugash: Shooting a corpse with intent to kill despite not knowing that victim was
already dead. Guilty because factual impossibility is not a defense. If the circumstances
had been as defendant believed them to be, victim would have been alive and, therefore,
he attempted murder.
(i) Note: The Jaffe court may hold differently because if defendant shot victim out
of fear of his life, perhaps he was hoping the victim would not be alive;
therefore, he may have lacked purpose as to the attendant circumstance.
c) Inherent Impossibility:
(1) Paradigmatic Case: Incredibly preposterous means to achieving illegal end.
(a) E.g. Voodoo
(b) E.g. Shooting someone with a pop gun.
(2) Common Law Rule: Inherent impossibility is a defense.
(3) MPC § 5.05(2): Inherent impossibility is not a defense, only a mitigating factor.
(4) Rationale: Minor Extension of the Actus Reus – conduct never achieves sufficient proximity to goal so
as to go beyond preparation and enter realm of attempt.
C. Impossibility and Mistake of Law
1. General Rule: Where mistake of law is a defense to a completed crime, it is not a defense to an attempted crime.
a) Completed Crime: Off the Hook
b) Attempted Crime: On the Hook (exception to the true legal impossibility defense)
2. Collateral Civil Law Exception:
a) Completed Offense: Ignorance regarding collateral civil law is a defense because it is treated like a factual
mistake.
b) Attempted Offense: Because mistake about collateral civil law are like factual mistakes, they are included in
the attendant circumstances attempter believes. Therefore, they are not a defense.
(1) E.g. D knows about the law of fixtures but is confused about when it actually applies. He thinks it is
broader than it is, so he believes he is committing a crime, when actually he is not. D still guilty for
attempted destruction of property because civil law as he believes applies to him.
3. Reliance Exception:
a) Completed Offense: Reliance on official statement of the law later determined to be incorrect is a defense to
a charge.
b) Attempted Offense: Official misinformation leading to belief that one is committing a crime, when they
actually are not is no defense to attempt liability.
(1) E.g. D calls up state attorney’s office, which erroneously tell him he cannot do something. He does it
anyway, disregarding the erroneous advice. He is guilty of attempt because reliance is not given credit
like it is in completed offenses, despite him not having actually done a wrongdoing.
4. Self-Same Exception:
a) Completed Offense: Statute read in such a way as to make knowledge of the law required in order for
defendant to be guilty (i.e. mistake of law is a defense where law is sufficient complex).
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b) Attempted Offense: Where statute requires knowledge of the law and D believes he is breaking it, but
actually is not, D is guilty of attempt (i.e. mistake of law is not defense).
(1) E.g. D does not disclose particular gifts on tax returns in order to evade tax law he believes applies to
them, when they actually are exempted. He is guilty of attempted tax evasion since ignorance of law is
no defense when someone mistakenly believes a complex law applies to him.
Defenses
I. Self-Defense
A. Imminence
1. MPC § 3.04(1): Use of Force is Justifiable for Protection of Person: Subject to the provisions of this Section and of
Section 3.09, the use of force upon or toward another person is justifiable when the actor believes such force is
immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on
the present occasion.
a) “Immediately Necessary” substitutes for the common law imminency requirement.
b) Unlike in common law, the actor’s belief need not be reasonable.
(1) There are limitations provided in MPC § 3.09(2), which rids defense to those who act recklessly and
negligently as to facts relating to justifiability for crimes of recklessness or negligence.
c) Dual Potential Meanings of “Immediately Necessary:”
(1) Necessary right now (i.e. imminent), or
(2) Necessary to do something right now if threat is sometime off, but inevitable
(a) E.g. If V, an abusive husband, tells D, his wife that he is going to the bedroom to get a
gun and kill her. V picks up kitchen knife and stabs him. Ds self-defensive act may be
justifiable, if she believed that she could not afford to wait until her husband returned.
2. Common Law: Deadly force is only justified in self-protection if the actor reasonably believes that its use is necessary
to prevent imminent and unlawful use of deadly force by the aggressor. The imminence requirement mandates that
force will occur immediately and danger is pressing and urgent. A threat of future force does not satisfy the imminence
requirement.
a) State v. Norman:
(1) Facts: Husband beat and prostituted out his wife. She tried to contact officials for protection, but he
made it impossible. While he was sleeping, she shot him several times.
(2) Holding: Wife defendant guilty of murder because threat was not imminent and, therefore, no selfdefense justification.
(3) Notes:
(a) Difficulty: If the law blesses her killing as self-defense, would his killing also be justified
as self-defense if he awoke right before she shot him and shot her to defend himself?
The law should not condone two people trying to kill each other lawfully (both are
aggressors and victims).
(b) Possible Challenge to the Holding: Imminence is supposed to be a proxy for inevitability.
Therefore, when a threat of deadly force is inevitable as it clearly was it, perhaps we
should relax the strict imminent requirement to permit force.
(i) If death or bodily harm in relatively near future is a virtual certainty and future
attack cannot adequately be defended against when imminent and there are no
alternative, seems appropriate to use self-defense.
B. Duty to Retreat
1. MPC § 3.04(2)(b)(ii): The use of deadly force is not justifiable if the actor knows that he can avoid the necessity of
using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a
claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take,
except that:
(1) The actor is not obliged to retreat from his dwelling or place of work, unless he was the initial aggressor
or is assailed in his place of work by another person whose place of work the actor knows it to be; and
(2) A public officer justified in using force in the performance of his duties or a person in using force in his
assistance or a person justified in using force in making an arrest or preventing an escape is not obliged
to desist from efforts to perform such duty, effect such arrest or prevent such escape because of
resistance or threatened resistance by or on behalf of the person against whom such action is directed.
2. Basic Duty to Retreat Rule: If there is an opportunity to escape and avoid using force without endangering oneself, the
potential victim (non-aggressor) is obligated to retreat and not use self-defense.
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a) Property Surrender Exception: If ability to avoid using self-defense depends upon giving up property, there
is not duty to surrender unless the other person has a legitimate claim over the disputed property.
b) Castle Exception: A non-aggressor is not ordinarily required to retreat from his home or workplace, even
though he knows he could do so in complete safety, before using deadly force in self-defense.
(1) Unless home-dweller is the initial aggressor
(2) Unless the other person also works there too
c) Public Officer Exception: Police officers do not have duty to retreat when individual whom they are
arresting resist or threaten to resist.
3. Issue: Whether the duty to retreat encompasses avoiding a situation one knows will necessitate using self-defense.
a) In one sense, we have a right to be in certain places regardless of the harms that are likely to confront us in
them.
b) But, doing so edges into contrivance or deliberate killing in self-defense (e.g. Charles Bronson “Death
Wish”).
C. Provocation (Contrived Self-Defense)
1. MPC § 3.04(2)(b)(i): Use of deadly force is not justifiable if the actor, with the purpose of causing death or serious
bodily harm, provoked the use of force against himself in the same encounter.
2. Basic Rule: Intentionally provoking the use of force against oneself eliminates the availability of self-defense as a
justification for reaction to threat.
3. Issue: Whether there is a difference between arming oneself with knowledge of likelihood of confrontation and having
purpose of killing someone that one provokes into posing a threat.
a) E.g. Person who lives in a very dangerous neighborhood in which confrontation is certain to occur seems to
have a right to arm themselves and use force. Justified because otherwise he would not be able to leave his
own home.
b) E.g. Charles Bronson repeatedly going into a dangerous neighborhoods to “exercise” his right to be there
with purpose of killing muggers that will confront him and, in fact, doing so. Such contrived self-defends
seems less justifiable because resembles unnecessary taking of life without really having an interest in being
in place at all.
D. Unknowing Self-Defense
1. MPC § 3.04(1) and § 3.05(1)(c): Actor must believe that such force is immediately necessary for purpose of protecting
himself against the use of unlawful force by such other person in present occasion.
2. Rule: Under the MPC, unknowing self-defense seems not to be a justification at all, even though objectively the
conduct undertaken did protect oneself or others from serious harm.
3. Three Ways to Handle Unknowing Self-Defense:
a) Grant Self-Defense Justification, No Murder: Objectively did actually protect self or others from harm,
regardless of what one thought they were doing.
b) Deny Self-Defense, Charge Murder: Not aware that defense was even necessary; therefore, granting them
the defense would undermine the fact that they had the culpable mens rea for the offense.
c) Charge Attempted Murder: Case of factual impossibility because no murder actually occurred, but D
believed himself to be killing (i.e. objectively correct, but subjectively wrong).
4. Illustrative Situations:
a) E.g. Defendant aims at someone wanting to kill him when unbeknownst to him victim was about to kill him.
Killer argues self-defense: Availing or Not? Cleanest soluation would seem to be charing him with
attempted murder.
b) E.g. Thief on beach sees valuable-looking bag, which actually has a bomb inside it. Thief takes the bag,
opens it, and delivers it to the police. Thief argues defense of others – Availing or Not? MPC suggests that
he must have been aware to get the benefit of the defense, despite having saved many lives by what he
believed illegal conduct.
E. Unlawful Force
1. MPC § 3.04(1): force must be immediately necessary for the purpose of protecting against unlawful force by such other
person on the present occasion.
2. General Rule: Individual against whom force is used must be (1) acting unlawfully and (2) must be the person actually
threatening life for self-defense to be justified.
a) Conduct that would constitute a crime or a tort is “unlawful” even if the actor could escape conviction or
liability by assertion of an excuse defense like insanity.
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b) E.g. A robber may not assert self-defense if he shoots and kills intended robbery victim when the latter
responds with force to the robbery attempt.
c) E.g. If V, an insane person or an infant, uses unjustifiable force upon another, this constitutes unlawful force
notwithstanding V’s potential excuse.
3. Issue: What exactly qualifies as unlawful?
a) E.g. Innocently convicted prisoner breaks out of jail and in course of doing so injures prison guard trying to
stop him. Prisoner cannot use self-defense because the guard is using lawful force only.
b) E.g. A threatens to kill B. A wants it back to kill B. Can B attack C to stop him from giving A his gun back?
c)
Probably not, because giving gun back is not unlawful and the person who does it would not be guilty as an
accomplice. But, strange to not permit someone to protect themselves at the only juncture possible.
E.g. While the two are climbing a mountain together, A gets sick and B has antidote. A will die unless he
takes B’s medicine, but B refuses to take it even though he could give it to him and stop trip without
threatening his own life.
(1) A probably cannot use force because B’s refusal is not unlawful.
(2) If we treated it as a mutual claim of right (B to withhold his property and A to save life out of necessity)
then we have awkward situation of blessing both sides in a deadly battle (demonstrates conflict between
no duty to act rule and necessity defense).
II. Defense of Property
A. Model Penal Code: Generally on Defense of Property
1. MPC § 3.06(1): Use of nondeadly force is permissible when:
a) The other person’s interference with the property is unlawful;
b) The intrusion affects property in actor’s possession or in possession of someone else for whom he acts; and
c) Nondeadly force is immediately necessary
2. MPC § 3.06(3)(d): The use of deadly force is impermissible to protect property, unless
a) Intruder seeks to dispossess nonaggressor of his dwelling, intruder has no claim of right, and such force is
immediately necessary; or
b) Intruder seeks to commit serious property crimes like arson, burglary, robbery, or other felonious theft or
property description and either (1) has employed or threatened deadly force in actor’s presence or (2) use of
nondeadly force would expose actor or others to serious risk of bodily harm.
B. Use of Devices to Protect Property
1. MPC § 3.06(5): The justification afforded by this section extends to the use of a device for the purpose of protecting
property on if:
a) The device is not designed to cause or known to create a substantial risk of causing death or serious bodily
harm; and
b) The use of the particular device to protect property from entry or trespass is reasonable under the
circumstances, as the actor believes them to be; and
c) The device is one customarily used for such a purpose or reasonable care is taken to make known to
probably intruder the fact that it is used.
2. General Rule: Deadly automatic device may not be used to protect property. However, non-deadly devices may be used
to protect property if reasonable and intruder warned of device.
3. Rationale: Indiscriminate devices are dangerous not only to intruders but also to innocent individuals who may come
onto property.
4. Issue: Whether it is permissible to place someone in a situation that requires them to decide between his own life and
taking property that is not his.
a) Spring guns, although, seeming less justifiable really is just like all other ways of protecting property that
employ potentially deadly set-ups the dangers of which intruder accept risk when coming onto some else’s
property.
b) People v. Ceballos:
(1) Facts: Ma rigged spring gun to go off if intruders entered his garage. He knew people had been trying
to break in the past. Teenage intruder was shot in the face, as a result of picking the lock and entering.
(2) Holding: Deadly mechanical devices can never be used to protect property.
c) Deadly Set-up Problem: Property owner installed grid in front of fireplace. Burglar, whom owner knew
came in through chimney, got trapped and died from starvation.
d) Macro-Level Problem: Can the U.S. build an automatic doomsday device during the Cold War, which nukes
Russia if it attacks us?
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(1) Prior to Attack: Feels justifiable because prevents conflict (i.e. ultimate deterrent).
(a) If we are 100% sure that defense would never be triggered, we would never have to
defend use of deadly force to preventively protect property.
(2) But, After Attack: Deciding to retaliate against innocents feels unjustifiable or futile.
(a) Individuals who are trained to trigger the device if it cannot automatically be done seem
to be the moral equivalent of attempters.
III.
Necessity
A. Choice of Evils (Balancing)
1. Justification Defense: We condone the choice of evils because objectively it is the correct decision and we ourselves
would have made it in the situation.
2. MPC § 3.02(1): Choice of Evils Justification: conduct which the actor believes to be necessary to avoid a harm or evil
to himself or to another is justifiable, provided that:
a) The harm of evil sought to be avoided by such conduct is greater than that sought to be prevented by the law
defining the offense charged; and
b) The neither the Code nor other law defining the offense provides exceptions or defenses dealing with the
specific situation involved; and
c) A legislative purpose to exclude the justification claimed does not otherwise plainly appear.
3. MPC Rules:
a) No common la imminency requirement
b) Person does not automatically lose the defense because he was at fault in creating the necessitous situation
c) Can be employed in homicide prosecutions
d) Not limited to emergencies created by natural forces.
4. Common Law: Justification defense principled in the fact that if circumstances require a choice among various evils, an
actor is justified if he chooses the least harmful option.
a) D must be faced with clear and imminent danger
b) D must believe as a reasonable person, that his actions with be effective in abating danger he seeks to avoid
c) There must be no legal way to avert the harm
d) The harm that D will cause by violating the law must be less serious than harm he seeks to avoid
e) Lawmakers must not have previously anticipated the choice of evils and determined the balance to be struck
between competing values in conflict with defendant’s choice
f) D must come to the situation with clean hands
5. People v. Unger:
a) Facts: D escaped from prison because he had been threatened with sexual assault, was sexually assaulted,
then was threatened with death by his attacker. He did not notify the authorities.
b) Holding: D received necessity defense because he was forced to choose between his life and prison escape.
He chose the lesser evil; therefore, it was a justified decision.
6. Issue: Aggregation and Future Evils
a) Issue: In balancing the harms presented for choice, are we to account for the various long terms harms to
society that would flow from allowing the defendant to claim necessity or are we restricted only to the
particular harms presented to the decision-maker?
b) E.g. Perjury vs. Life: Friend charged with crime and defendant knows that he is innocent. To prevent his
death sentence, defendant perjures himself to provide and alibi to acquit the friend. Later evidence
demonstrates conclusively that he is innocent. Should the defendant be liable for perjury or is he eligible for
a necessity defense?
(1) Narrow Scope: At first, it seems a clear case in which the necessity defense should be available because
it is a decision between lying and saving a life.
(a) Analogy: Judge facing a riot which will wreak havoc on the city unless the he puts to
death an innocent defendant. Allowing adding the evils up would permit the judge to
execute, when out intuitions would hold otherwise (e.g. wouldn’t organ harvesting have
to be condoned).
(2) Aggregate Evil: Allowing individuals to lie in court, the greater the occurrence of erroneous verdicts
due to substantial uncertainty as to the truth of everyone who makes statements in particular cases.
(a) Analogy: Company cannot lie even when it does more harm than good because in the
aggregate, people would always doubt corporate statements, which is very bad; therefore,
no necessity defense.
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c) Public Committee Against Torture v. State of Israel: While the defense of necessity would likely be
available to a torturer in the right situation in which there is a ticking time bomb and torture is the only way
to elicit information to prevent its explosion; however, the position of the government should not be that
torture is permissible, rather it must be ex ante forbidden.
(1) Utilitarian: Adding in future consequences to others may weigh against providing the defense of
necessity even in ticking time bomb case (e.g. U.S. military afraid that our soldiers would be tortured)
(2) Retributivist: Cannot commit a wrong even to gain a greater right (e.g. Dudley and Stephens).
B. Legislative Preemption Exception
1. Exceptions to the Necessity Defense: Bar the defending from raising it during trial.
2. MPC § 3.02(1)(b): Neither the Code nor other law defining the offense provides exceptions or defenses dealing with the
specific situation involved.
a) Rule: The dilemmas have been addressed by the legislature and because it decided them differently than the
individual, no necessity defense is available.
b) E.g. If perjury statute contained mitigating circumstance provision that gave lesser punishment to person
who perjured himself in good faith, no necessity defense is available.
3. MPC § 3.02(1)(c): A legislative purpose to exclude the justification claimed does not otherwise plainly appear.
a) Rule: If the legislature dealt with the situation in which defendant tries to raise a necessity defense in
advance, then it is not available in a particular situation.
b) E.g. If in addition to prohibiting medical marijuana use, there was provision stating “nor shall there be used
medicinally unless it is approved by FDA” it would demonstrate no necessity defense can be raised because
statute creates narrow exception on its own.
c) Issue: Whether legislative debate demonstrates that possibility of necessity defense was argued but not
successful, perhaps that is enough to show legislative intent not to provide the defense? Usually, this
exception requires words in the statute, but argument is available.
C. Responsibility for Creating Choice of Evils
1. MPC § 2.03(2): When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or
evils or in appraising the necessity for his conduct, the justification afforded by this section is unavailable in a
prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.
2. Rule: If a defendant recklessly placed himself in situation requiring choice of evils or negligently appraised the situation
requiring the choice, then he cannot defend on necessity grounds to charge for crimes of recklessness or negligence.
a) E.g. If D recklessly drives and then runs over 1 to avoid hitting 5, he retains the defense for charge as to
murder (because knows result almost certain) but he cannot raise it against negligent homicide.
3. Time-Framing Issue: How far back can we reach in finding a reckless or negligent decision that was part of placing the
defendant in the situation requiring choice of evils?
a) E.g. Prisoner intentionally breaks out of prison. He then claims defense of necessity. If he was reckless in
committing crime that put him in prison, is he no longer able to raise the defense?
b) E.g. When someone who join s a gang an initially get into bad company, ability to invoke defense of
necessity for committing further crimes is not available because reckless decision to join the gang in the first
place.
c) Nothing in the MPC precludes reaching farther bank to find faulty decisions in causal chain so as to prevent
necessity defense.
D. Contrived Necessity
1. Issue: Whether or not intentionally placing oneself in the situation that requires choice of evils precludes the necessity
defense? (similar to contrived self-defense)
a) MPC does not preclude the defense explicitly for intentionally creating the situation. But, it is awkward to
preclude it for an action done recklessly and not one done intentionally (although in self-defense,
provocation includes intentional contrivance as negative availability of defense).
(1) E.g. Driver intentionally drives to place where enemy on one side or group of five on the other. He then
swerves to kill his enemy to avoid the group of people. He has the intention to kill and the result
occurs, but he can still claim necessity according to a strict interpretation of MPC.
b) Two Possible Solutions:
(1) MPC was wrong in not including intentional creation of the situation, so read it into the provision.
(2) Focus on the moment in time at which he made the difficult, indefensible choice to sacrifice 1 for 5.
Since no choice of evils was present when he contrived, he should not have the necessity defense
available.
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c) Difficult Case: Patty Heart Kidnapping Case: Heiress learns of radical group that conducts bank robberies.
She dismisses bodyguards hoping she would be kidnapped by them and they would let her participate. She
believed she could then invoke defense of necessity.
(1) Even supposing intentional contrivance is covered by MPC, we still hesitate to not give her necessity
defense because she has a right to dismiss bodyguards like everyone else (just like Charles Bronson has
the right to go into Central Park). Would the intentional dismissal of her bodyguards really be the
equivalent of bringing about the situation and should that make her not be able to claim necessity?
IV.
Duress
A. General Principles
1. Model Penal Code § 2.09: Duress: It is an affirmative defense that the actor engaged in the conduct charged to
constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person
or the person of another, which a person of reasonable firmness in his situation would have unable to resist.
a) Homicide may still qualify,
b) Threat need not be imminent deadly threat.
c) Like common law, it does not apply to natural sources of coercion or to threats to anything other than bodily
integrity.
2. Common Law Duress Requirements: Only for Non-Homicide
a) Another person threatens to kill or grievously injure actor or third party unless she commits offense
b) Actor reasonable believes threat genuine
c) Threat was present imminent and impending at tie of criminal act
d) There was no reasonable escape from threat except to comply with demands
e) Actor was not at fault in exposing herself to the threat
3. Duress is an excusive, not a justification unlike necessity.
4. Duress does not require one to choose the lesser evil and it is available for prospective harm, unlike necessity.
5. Balancing: Rather than necessity, duress only requires us to compare threat to what you are being asked to commit to
determine if it was “reasonable,” without requiring choice of lesser evil.
6. The threat must arise from a human force or threat of force, not a non-human threat. Seeking benefits by committing
crime does not for duress even if benefits are very significant; inducement are not equivalent of threats (e.g. cannot kill
to get a raise).
a) E.g. Where an individual driving car down a mountainous road facing an oncoming car with two people in
it. Defense of duress is available if someone is holding a gun to driver’s head, but it would not be if there is
a cliff on the other side requiring him to run the other people over.
b) E.g. If threat of deadly disease and could steal medicine to cure, cannot steal and claim duress because
disease is not “unlawful force” emanating from human being (despite it being as deadly as a person
threatening one’s life).
c) Rationale: All difficult predicaments would permit people to commit illegal acts; therefore, it must be
limited to humans only.
B. Standard of Reasonableness
1. Standard: Person of “reasonable firmness.”
2. Rule: The threat of force must induce such a fear as a man of ordinary fortitude and courage might justly yield to. Thus,
we account for situational circumstances under which the threat is made, but we do not account for personal
temperament (e.g. Clint Eastwood would qualify even if he had did not actually feel threatened).
a) Superior capacity to withstand threats does not disqualify someone from raising defense of duress, nor does
past valuations demonstrating one should be willing to sacrifice themselves because willing in less worthy
situations.
3. State v. Toscano:
a) Facts: Defendant aided a loan shark in the preparation of a fraudulent insurance claim. Loan shark had
threatened defendant and his wife if he did not participate.
b) Holding: Defendant is not eligible for duress defense. We must look to the reasonable person, who would
have called police or refused to cooperate instead of complying under the threats. The threat of risk of
violence is too remote or distant to qualify.
C. Exception: Responsibility for Creating Duress
1. MPC § 2.09(2): The defense is unavailable if the actor recklessly placed himself in a situation in which it was probably
that he would be subjected to duress. The defense is also unavailable if he was negligent in placing himself in such a
situation, whenever negligence suffices to establish culpability for the offense charged.
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2. Rule: Whenever an actor recklessly places himself in situation creating duress, he cannot raise it as a defense to the
commission of a crime.
a) If one is at fault in any way, he loses the defense regardless of the offense’s mental state requirement.
V. Involuntary Intoxication
A. Model Penal Code
1. MPC § 2.08 (4): Intoxication which (a) is not self-induced or (b) is pathological is an affirmative defense if by reason of
such intoxication the actor at the tiem of his conduct lacks substantial capacity either to appreciate its criminality or to
conform his conduct to the requirement of the law.
2. Rule: Involuntary intoxication is defense when condition so impaired as to render them temporarily insane. Insanity
does not cover the situation because no mental disease (Kingston D would still be liable).
B. Common Law
1. Regina v. Kingston:
a) Facts: Man lured D and boy into apartment, drugged D, and then took photos of him sexually abusing the
boy. D was aware that he was subject to temptations and therefore avoided disinhibiting substances that
would reduce ability to suppress urges.
b) Court of Appeals: Yes Defense. Should not impose liability on person who went to great pains to prevent
temptations from manifesting themselves. Momentary, involuntary cultivation of personality that will desist
should not make him liable. Result turns on fact that someone else is responsible for disinhibition, rather
than just a chemical imbalance.
c) House of Lords: No Defense. This case is difficult to distinguish from an individual who was involuntarily
born with the trait that led to his inability to suppress the same urges. To grant D the defense may require us
to extend it to other child molesters who also try to avoid situation but are overcome by uncontrollable urges
when confronted with temptations they didn’t seek out.
(1) Deterrence Perspective: Whatever creates the urges, best way to discourage their manifestation is to
punish it regardless.
VI.
Insanity
A. General Principles
1. Excuse Rationale: Since the defendant is not fully responsible for the conduct due to incapacity to make rational
decisions. Accordingly, insane defendants are more deserving of exculpation.
B. Insanity During Commission
1. Cases:
a) M’Naghten’s Case: Defendant believes that Prime Minister is in charge of conspiracy that is trying to harass
and kill him. He tries to kill the Prime Minister, but winds up killing his secretary.
b) State v. Crenshaw: Defendant suspects without any evidence except a look that his wife cheated on him.
According to his Moscovite religion, she has to die. He repeatedly stabs her to death. Then, he comes back
with axe, decapitates her, cuts her into pieces, and then cleans up the hotel room. He has a beer, then picks
hitchers and asks them to help him hide the body. Hitchers reported him to the police.
2. Tests:
a) Product Test (Durham Rule): Whether defendant’s conduct is a product of a mental disease?
(1) Too Broad / Overinclusive: Nearly everyone qualifies under this test because any wrongdoing related to
mental problem including car accident on way to pharmacy for depression pills.
(2) Abandoned / No longer in use.
(3) M’Naghten and Crenshaw would both qualify because conduct is obviously product of mental defect.
b) Irresistible Impulse Test: Whether defendant is victim to impulse that disables them from conforming their
conduct to the law?
(1) Redundant / Non-inclusive; Voluntary act requirement is already in place and accomplishes everything
this test does. Therefore, this defense would not exculpate anyone who would otherwise be eligible for
conviction.
(2) M’Naghten: Regardless of delusions, his conduct was not involuntary in the sense that he chose to
respond to the alleged conspiracy by killing.
(3) Crenshaw: He voluntarily chose to follow the mandates of his religion.
c) Substantial Capacity Test (MPC §4.01 (1)) A person is not responsible for criminal conduct if at the time
of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the
criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law.
d) Inability to Tell Right From Wrong Test (M’Naghten 1)
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(1) M’Naghten: Qualifies for the defense because he thought he was acting in self-defense which would
make his conduct right.
(2) Crenshaw: Would not qualify for the defense because efforts to conceal the body demonstrate he knew
he committed a wrongdoing according to societal standards.
e) Inability to Know Nature and Quality of One’s Actions Test (M’Naghten 2)
(1) E.g. Person who squeezes a neck thinking it is a lemon.
(2) Both M’Naghten and Crenshaw would not be eligible because they understood that they were
committing a crime from which death would result.
3. Is Insanity Defense Necessary?
a) When we divide the cases between someone acting madly like an animal and those involving delusion,
insanity may not actually be necessary because they may be covered by voluntary act requirement and
mistake of fact defense, respectively.
b) One Fatal Flaw: Cases involving children demonstrate that something missing in them could transfer into
insane adults. It is a difficult elusive extra thing that cannot be identified.
C. Competency for Trial and Punishment
1. Insanity Subsequent to the Criminal Activity
a) In the context of execution, both theories suggest that we should still punish the mentally ill.
b) Deterrence: Acquitting would dilute threat of punishment; by punishing you get more deterrent impact.
c) Retributivist: As long as you can be made to feel pain and know in advance that pain will be inflicted you
achieve retribution.
d) However, intuitively we are reluctant to punish or even try the insane, but not from either viewpoint. There
is a communicative element. They must understand why pain is being inflicted in – desire for just desert and
intimidation does not seem to require this universal requirement.
Rape
I. Force
A. Rules
1. MPC § 213.1(1): Rape: A male who has sexual intercourse with female not his wife is guilty of rape if:
a) He compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or
kidnapping, to be inflicted on anyone; or
b) He has substantially impaired her power to appraise or control her conduct by administering or employing
without her knowledge drugs, intoxicants, or other means forth purpose of preventing resistance; or
c) The female is unconscious; or
d) The female is less than 10 years old.
2. MPC § 213.1(2): Gross Sexual Imposition: A male who has sexual intercourse with a female not his wife commits a
felony of the third degree if:
a) He compels her to submit by any threat that would prevent resistance by a woman of ordinary resolution; or
b) He knows that she suffers from a mental disease or defect which renders her incapable of appraising the
nature of her conduct; or
c) He knows that she is unaware that a sexual act is being committed upon her or that she submits because she
mistakenly supposes that he is her husband.
3. Rule: A person is guilty of rape if the person engages in vaginal intercourse with another person by (1) force or threat of
force against the will and (2) without he consent of the other person.
a) In a minority of states, non-consensual penetration satisfies the force element; however, the majority retains
that both force and non-consent are required.
b) Resistance Requirement: Victim must either have reasonably resisted the threat of force or the threat must
have been so significant as to render resistance meaningless or futile.
c) The difficulty in rape cases and the reasoning for requiring force and resistance is to provide some
objectivity to judging whether or not there was consent.
II. Issues With Consent
A. Communication
1. Issue: Non-clarity of communication makes the existence of consent difficult to determine.
a) Initially, courts required the most vigorous / ferocious resistance before presumption of consent was
overcome.
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b) Alternatively, we could required complete consent in the form of signed statement.
c) Courts have gradually moved toward middle ground: reasonable resistance.
d) Complication: Still leaves difficulty with how to handle naturally imperfect communication despite having
settled on the standard by which to judge it.
B. Mental State of Victim
1. Issue: We also have trouble categorizing the mental state of the victim as consensual or not (entangled with the
communication problem).
C. Threats or Impairments of Consent
1. Issue: There may be reasons not to fully credit the granting of consent by the victim.
a) Paradigmatic Case: Consent is a direct product to kill or injure the victim.
b) Threat of Legal Behavior: Where threats are not actually a crime, but still place pressure on the victim so
as to make us question the validity of resulting consent.
(1) E.g. Rusk threatens to kick victim out of his car and into strange neighborhood if she doesn’t submit to
intercourse. Although he has right to kick her out of his car, consent that result is not necessarily valid.
(2) E.g. Threats that involve revealing infidelity to one’s spouse, which would qualify as blackmail in other
contexts. Courts split on whether or not resulting consent is valid or not.
c) Severity of Threat: Whether to account for how bad the illegal threat is in determining whether the consent
is valid.
(1) Threats may include death, assault, dissemination of information, etc.
(2) Some states have said that it is irrelevant as long as consent is obtained and acted upon.
(3) But, MPC does feel that the severity of the threat correlates with the severity of the crime. It asserts that
if threat is milder it is a less serious impairment and therefore only qualifies as gross sexual imposition,
rather than rape.
d) Victim Taking the Initiative: Whether the victim making the proposal for sexual intercourse in order to
escape a particular threat invalidates her consent.
(1) E.g. Victim is kidnapped. She proposes intercourse in exchange for her release. Seems that it should
still be invalid because same coercive circumstances and desire to be let go.
e) Related Impairments of Consent: Fraud and Intoxication
(1) Fraud: Lie plays instrumental role in manifesting woman’s consent.
(a) Rule: Telling lies about oneself even if crucial in obtain consent does not negate consent
unless the lies go to the very act or identity of the person involved. Lies of a more
background sort are not sufficient to negate consent.
(b) Impermissible Lie: Pretending to be woman’s husband
(c) Permissible Lie: Saying that you are a CEO
(2) Intoxication: Whether an intoxicated person is able to manifest valid consent.
(a) If the victim is unconscious then it obviously negatives consent. On the other hand, one
or two drinks obviously does not.
(b) Should the level of drunkenness that would qualify for drunk driving be enough to satisfy
intoxication invalidating consent? Perhaps, but most people like to have sex when they
get drunk.
(c) Strange because where both people are intoxicated and have sex, both could be
prosecuted for rape. Their intoxication doesn’t negative mens rea of rape, but also may
simultaneously negate consent,
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