Organizing_Principles
1. General Principles
-punishment (utilitarian vs. retributive)
-statutory interpretation
-MR, AR, causation
3. Defenses
justifications
self-defense
defense of others
necessity
excuse
duress
insanity
(voluntary intoxication)
3. Types of Crimes
-homicide
-rape
-inchoate offenses
attempt
assault
solicitation
conspiracy
-accomplice liability
-Within each crime:
CL vs MPC
what is the MR, AR?
exceptions?
defenses
justification/excuse
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General Principles
I. Punishment
A. Utilitarian
1. General deterrence
2. Specific deterrence
3. Isolation
4. Reform
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5. Proportionality
a. punishment should outweigh benefit from committing crime
b. greater the mischief the greater the punishment
c. punishments should induce man to commit a lesser mischief
B. Retributive
1. Guilt deserves punishment
2. Criminal tries to be superior to victim/society; punishment reinstates
balance
3. Proportionality
a. an eye-for-an-eye
C. 6th Amendment
1. guarantees that "in all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury."
a. jury nullification (a power, not a right)
2. Process:
felonious crime
arrest (with probable cause; high likelihood he committed crime)
complaint
arraignment
preliminary hearing/grand jury indictment
motions
trial
sentencing
D. 8th Amendment
1. no cruel and unusual punishement
a. US Supreme Court holds punishment other than death cannot be
deemed out of proportion if the people, acting through their
legislatures, deem the punishment appropriate for the crime
i. this standard bound to change over time
II. Statutory Requirements and Interpretation (see chap 3 for headings)
A. Previously defined conduct
1. Nothing can be considered a crime without a pre-existing law
2. Statutes cannot be vague or else they are void; statutory clarity
3. "Strict construction" (aka, rule of lenity) which requires that judicial
resolution of uncertainty in penal statutes should be biased in favor of the
accused.
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III. Elements of a Crime
A. AR
1. the physical or external part of a crime
2. voluntary act
a. Voluntary act objectively demonstrates willful intent (i.e., MR)
b. Involuntary acts (MPC §2.01(2))
i. reflex or convulsion
ii. movement during unconsciousness or sleep
iii. conduct resulting from hypnosis
iv. movement not product of effort/will of actor (cf. duress)
3. voluntary omission
a. One cannot be held criminally culpable for refusing to act,
unless one had a legal duty to another person.
i. Legal duty: guardian or protector
1. parent for a child
2. caregiver for patient
3. guardian of a mental deficient
B. MR
1. Culpability (cf. general intent)
a. CL - guilty mind; morally culpable state of mind
2. Elemental (cf. specific intent)
a. CL/statutory/MPC
i. does MR meet statutory req?
ii. typically at time of act
3. Proof of Intent
a. Can therefore be inferred (but not presumed) that a person
ordinarily intends the foreseeable consequences of his acts
4. General vs. Specific Intent (140n6; intent, 138-141)
a. General intent
i. morally culpable
ii. act itself is enough
b. Specific intent
i. guilty as per each element
ii. intend to do something more than the act
a. a future act ("with intent to commit a felony
therein)
b. a special motive or purpose ("with intent to cause
humiliation")
c. proof of awareness of attendant circumstances
("to a person know to be under 18")
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4. Model Penal Code §2.02 and mens rea (141-145); Elemental approach
a. MPC requires prosecutor to prove particular mens rea for each
crime, not just a morally blameworthy manner
i. MPC does not distinguish between specific and general
intent; yet, even code states continue to draw the distinction
b. MPC abandons countless common law mens rea terms and
replaces them with four:
i. Purposely
a. conscious object to:
i. engage in defined conduct or
ii. cause a result
b. attendant circumstances:
i. aware they exist or
ii. believes or hopes they exist
ii. Knowingly (same as "Wilfull")
a. aware his conduct is wrongful or
b. aware behavior almost certain to cause result
c. aware attendant circumstances exist1
iii. Recklessly
a. consciously disregards a substantial and
unjustifiable risk that
i. material element exists or
ii. will result from his conduct
b. a gross deviation from law-abiding standard of
conduct
iv. Negligently
a. should be aware of a substantial and unjustifiable
risk
b. the lack of awareness is a gross deviation from
reasonable standard of care
c. One of these levels of culpability must be proved with respect to
each "material element" of the offense, namely,
i. the nature of the forbidden conduct
ii. the attendant circumstances
iii. the result of conduct
d. if no MR mentioned in statute, then it must be something other
than negligence proved (§2.02(3))
e. when words in statute unclear level of culpability applies to all
material elements of statute unless explicitly stated otherwise.
5. "Knowledge" of Attendant Circumstances
a. not a material element; therefore no MR needed, just prove
circumstances existed at moment of crime
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satisfied by knowledge of a "high probability" that the element exists (§2.02(7))
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6. Strict Liability Offenses
a. criminal liability attaches without regard to fault if conduct
involves,
i. minor violations of liquor laws, pure food laws, motor
vehicle and traffic regs, building and factory laws
ii. court typically refuses to hold felony convictions to a
strict liability standard (exception: statutory rape)
b. MR req firmly entrenched in American law
7. Mistake
a. did mistake have effect on D's mental state, thereby preventing
him from having the MR req for crime?
i. mistake of fact
1. specific intent crimes
a. even an unreasonable belief is valid
2. general intent crimes
a. mistake must be reasonable
ii. mistake of law (rarely permitted)
1. not app to strict liability crimes (cuz no MR)
2. unreasonable belief permitted
b. factfinder always free to disbelief mistake actually occurred
C. Causation: did my acts combined w/mental state combine to result in social
harm actual and proximate causes
1. Actual cause (cause-in-fact)
a. "But for" test: a D's conduct is a cause-in-fact if the said result
would not have occurred "but for" the D's conduct
i. Concurrent and contributory but-fors
1. acts together cause the criminal harm, but neither
alone would have
b. Substantial factor test (rarely used to replace "but for" test):
when acts of two D's would each alone be sufficient to result in the
harm; both can be found guilty this way
2. Proximate Cause req: Cannot be a proximate cause without being an
actual cause [but] Can be an actual cause without being the proximate
cause
a. courts won't impose liability where:
i. prohibited result of D's conduct is beyond scope of any
fair assessment of the danger created by D's conduct
ii. where it would otherwise be unjust based on fairness and
policy considerations
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b. Intervening force
i. but-for causal agent comes into play after D's act or
omission, and before the social harm occurs
1. act of God
2. 3rd party that accelerates or aggravates
the harm caused by D
3. act or omission of victim that assists in bringing
about the outcome
i. Categories of intervening causes
1. coincidental/intervening/supervening
a. happens without any cause from D
b. breaks chain of causation unless
foreseeable by D
2. responsive/dependent
a. D is somehow responsible for bringing
about this act
b. breaks the chain of causation only if
abnormal
3. MPC § 2.03
a. merely a proximate cause req: "actual
result not too remote or accidental in its
occurrence to have a just bearing on D's
liability"
c. "Apparent safety" (common law)
i. when a person reaches a position of safety, original
wrongdoer is no longer responsible for ensuing harm
d. Transferred intent
D. Social Harm
Types of Crimes
-Within each crime:
what is the MR, AR?
CL vs MPC
exceptions?
defenses
justification/excuse
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I. Homicide – general intent
Common Law
Murder: (killing with "malice
aforethought")
- premed/deliberate
- intent to cause SBI
- depraved heart
-callous indifference to
human life
- felony murder
Manslaughter: (kill w/o "malice
aforethought")
- voluntary (HOP)
- involuntary
MPC
Murder: - intent to kill
- depraved heart/reckless
indifference (SBI analog)
- (felony murder)
Vol Manslaughter: - reckless
- EED
Negligent Homicide: - Gross negligence
A. Intentional Killings
1. Deliberation-Premeditation Formula
2. Manslaughter: "Heat of Passion" (HOP) Killings
a. Common Law Principles
i. a partial "justification"; mitigates down from murder
1. requires "adequate provocation to inflame
passion of a reasonable man" due to unlawful
conduct by provoker (words not enough)
a. Rule of Provocation (tested objectively)
i. adequate provocation
ii. heat of passion
iii. sudden heat – no time to cool
iv. causal connection between
provocation, passion, and factual act
ii. CL circumstances permitting manslaughter mitigtion
1. catching spouse in act of adultery
2. mutual combat
3. assault and battery
b. The CL Objective Standard: Who is the Reasonable Man?
i. Provocation thus requires a dual test:
1. provocation sufficient to cause particular D to
lose self-control
2. might cause a reasonable man to act in the
manner that D did
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ii. Definition a reasonable man/person:
1. either sex
2. normal powers of self-control
3. was level of response merited by gravity of
provocation?
c. MPC and beyond (mainly subjective)
i. MPC uses the "extreme emotional distress" (EED)
standard, which is much broader than the HOP standard
1. no need for immediate, unthinking reaction
2. takes into account D's subjective outlook re:
a. was D provoked?
b. was provocation adequate?
c. response of D is sub/ob hybrid: Is D's
subjective perception one that, if a
reasonable man had it, would lead to the
same action?
Tison v. Arizona (good exam review case)
i. actor who is a major participant in a felony, but who has reckless indifference to human
life, nevertheless is eligible for death after a felony-murder conviction
ii. Dissent: major participation may reveal a mental state, but should not be used alone to
impose death
iii. recklessness is much less culpable than intentional, therefore, we must punish them
differently in order to maintain "the relation between criminal liability and moral
culpability"
B. Unintentional Killings
1. Common law
a. intent to cause SBI resulting in unintended death is murder with
malice aforethought under CL
i. CA: "abandoned and malignant heart"; "implied malice"
ii. Utah: "depraved indifference, i.e., callous to value of
human life "
b. implied malice
i. conduct demonstrating depraved indifference plus
ii. awareness of
1. risks of conduct (high probability of death) or
2. conduct was contrary to law
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2. MPC
a. Recklessness, §2.02(2)(c)
i. "conscious disregard of a substantial and unjustifiable
risk"
ii. that is, D was aware of the substantial and unjustifiable
risk [cf. criminal negligence infra]
b. Accords no special significance to an intent to cause SBI but
rather treats such cases under the extreme recklessness and
recklessness standards
3. Negligence (involuntary manslaughter)
a. "gross deviation" from reasonable person standard of care and
that deviation results in a death
i. criminal negligence: should have been aware of a
substantial and unjustifiable risk and failure to perceive it
considering the circumstances known to him
4. Felony-Murder Rule (CL)
a. the doctrine in its unlimited form
i. in effect, once there is a felony, the killing becomes a
murder as a strict liability offense
ii. applies in commission or attpted commission of felony
b. the policy debate
i. modern rationales (288-291 criticizes them)
1. deterrence: rule is so simple, felons can
understand it; yet how can we deter an unintended
act?
2. transferred intent: mens rea for burglary is not
the same of premeditation for murder
3. retribution and general culpability: punish the
"evil mind"; conflicts with trend of punishing
homicide by degree of culpability
4. promotes conservation of judicial resources
ii. MPC is against the felony-murder rule
1. death resulting from felony creates rebuttable
presumption of D's recklessness and extreme indiff
to life
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c. Limitations on the Rule (not that under traditional CL these
exceptions would not apply; mention that in all essays)
i. The "inherently dangerous felony" limitation
1. if felony not inherently dangerous (either in
abstract or in the particular instant case) then
murder rule should not be applied
2. only apply it in very violent behavior; charge
people with different level of homicide
ii. the "merger" limitation
1. if underlying felony is a step in the death, then
you can't charge felony-murder
a. Policy: prevents stacking charges against
D's; "ratcheting up" charges.
2. Two part test is merger applies:
a. are the acts that make up the underlying
felony an integral part of death?
b. does the underlying felony exhibit an
intent or goal to accomplish something apart
from the ultimate result of the felony?
iii. "in furtherance of" a felony
1. if death is a coincidence with the crime, then no
felony-murder rule
a. flying a plane transporting drugs; it
crashes and kills one of the occupants = no
felony-murder
2. if it is a direct consequence (i.e., "natural and
probably result"), then felony-murder.
iv. Agency
1. if death occurs by someone not acting in concert
with Ds, then the Ds cannot be charged with felony
murder.
2. if the deaths are not illegal deaths (e.g., justifiable
homicide, self-defense), Ds cannot be charged with
felony-murder (see State v. Bonner)
2. The "misdemeanor manslaughter" rule
a. homicide during commission of a non-felony is common law
involuntary manslaughter
b. MPC favors abolishing this rule
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C. Defenses
1. justifications
a. self-defense
b. defense of others
c. [MPC does not exclude necessity, but unlikely to be granted]
II. Rape – General Intent
CL
Elements:
-sexual intercourse (penetration sufficient)
-force, threat of force, [fraud]
-without consent
-against her will [woman must resist]
-[not wife]
MPC
Elements:
-sexual intercourse (penetration sufficient)
-force, threat of imminent death, SBI,
extreme pain, or kidnapping
-against her will [no resist req]
-[not wife]
CL RAPE & SIMILAR (MR – knowingly)
Rape (General Intent) Elements:
 Sexual intercourse (interpreted broadly)
 force, threat of force, or fraud (removed in some statutes)
o if no force then fear must be reasonable/based on objective manifestation
of intent to use force
o force of removing sheets was sufficient in hospital patient case
o Fraud [fraud sometimes removed and often interpreted differenctly]
 no consent if “fraud in the factum”, because consent was not
given for act that actually occurred – Dr. says treating patient with
surgical instrument, but puts penis in: rape
 consent if “fraud in the inducement” – D says "if we have sex,
I'll marry you tomorrow": not rape
 without consent
o consent must be freely given and communicated to  [mistake instruction
only given when some equivocal conduct]
  belief must be reasonable (majority rule)
 “No Defense” Rule analogous to statutory rape cases
o additional burden on V if prior longstanding sexual relationship.
o incapacity
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

o
against her will [to resist]
o must be overcome by force or threats of contemporaneous force
o resistance must be evidenced by V’s statements or actions [verbal plus at
least some initial resistance]
o Mens rea - Mistake must be reasonable
 if a D entertains a reasonable and bona fide belief that V
voluntarily consented to sex, then he does not possess wrongful
intent that is a prerequisite for rape (majority belief)
not wife (removed in some statutes)
*judges used to look at women as potential accomplices using rape allegations to shield
them from accusations of crime of fornication
MPC RAPE (MR – can be as low as reckless)





Sexual intercourse
Compelled by force, threat of imminent death, SBI, extreme pain, or kidnapping
[resistance requirement has been implicitly reintroduced by many jurisdictions]
o Force: current judicial opinion holds "physical force" to mean "any
degree of physical power or strength used against the victim, even though
it entails no injury and leaves no mark."
Against her will
[Victim not wife]
Victim is incompetent to give consent
RAPE SHIELD laws
A. No questions or evidence about V's reputation or prior sexual history
1. Exceptions:
a. sexual history w/D or others deemed relevant if it will explain a
physical characteristic being used to prove the rape
i. e.g., vaginal tearing, etc
b. some states permit reputation evidence if deemed relevant on a
case-by-case basis
Defenses
mistake of fact
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III. DEFENSES TO SUBSTANTIVE CRIMES
Def. Defense: "any set of identifiable conditions or circumstances which may prevent a
conviction for an offense"
Defense counsel:
1) move for directed verdict
2) rest on innocence (i.e., no case presented)
3) present a case
-may include affirmative defenses: either to exculpate or to
mitigate
Defenses:
self-defense
defense of others
necessity
duress
insanity
-mounting a defense implies that D believes that prosecutor
has proven case
A. Categories of Defenses
1. Failure of Proof Defenses
a. one or more elements in the definition of the offense cannot be
proven
b. Winship: req state to prove all elements of crime beyond a
reasonable doubt
2. Offense Modifications
a. all elements of offense exist, but no social harm or evil that the
statute defining the offense sought to prevent
i. e.g., making a ransom payment to kidnappers to save
child is technically complicity in kidnapping
3. Justifications (self-defense; defense of others; necessity)
a. justification represents a "superior social interest"
b. justification negates the social harm of an offense
4. Excuses (duress; insanity)
b. negates the moral blameworthiness of the actor; but social
harm still exists (all elements of crime satisfied)
5. Nonexculpatory Public Policy Defenses
a. statute of limitations – guilt remains, but for public policy of
fostering a more stable and forward-looking society, crime is
ignored after a certain time period
b. diplomatic immunity, judicial immunity, incompetence, etc
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B. Burden of Proof
1. Not unconstitutional to put the burden of production for affirmative
defenses and also the subsequent burden of persuasion on Ds
(meanwhile, prosecutor has burden of production for the elements of the
crime)(450n1).
a. obligation of states to define the elements of the crime
b. MPC §1.13 recommends that prosecution carry the burden of
disproving any affirmative defense raised2 by D
C. Principles of Justification
1. Structure of Justification Defenses
a. existence of triggering conditions permit a
b. necessary (response to imminent threat) and proportional
response to avert the threat
i. the necessary and proportional requirements are very
important
2. SELF-DEFENSE
a. CL General principles
i.. def. self-defense (CL)
a. must be an unlawful and imminent threat
b. of death or serious bodily harm and
c. a reasonable belief deadly or severe force only
way to counter the threat and
d. response is proportional
ii. aggressor: cannot normally assert self-defense
justification
a. aggressor – one who performs an unlawful act
reasonably calculated to produce an affray leading
to injuries or death (i.e., provokes the incident)
iii. retreat rule: under CL, "retreat to the wall" before use
of force
a. rarely applied when D faced with deadly force
iv. castle doctrine: almost universally accepted that one
has no duty to retreat if attacked within one's home
b. MPC §3.04
i. Deadly force not justifiable "if the actor knows that he
can avoid the necessity of using such force with complete
safety by retreating" (MPC §3.04(2)(b)(ii)).
a. otherwise, same as CL (adds, no retreat at work)
2
forcing prosecution to disprove all possible affirmative defenses is unreasonable
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c. Policy arguments in favor of self-defense justification
i. public duty
a. prevent any forcible or atrocious crime
ii. moral forfeiture of the right to life
a. by threatening to take a life, one forfeits the right
to his own life
iii. the right to preserve autonomy
a. in this case, the defender kills to preserve his
right to life
iv. right to resist unlawful aggression (when State not there
– in the form of police – to do it for you)
v. lesser evils doctrine
d. "Reasonable Belief" Requirement
i. at CL
a. objective defined as a reasonable person in the
D's situation; cf. p. 471
b. info about physical attributes of all actors, D's
knowledge about victim, and D's prior experiences
in similar situations are all relevant to determining
what was objectively reasonable for a man in D's
situation to do
1. does this not open the door to allow
people's prejudices to enter the consideration
of the reasonableness of their actions
c. imminent harm req – objective test
d. necessity and proportionality of response –
objective test
ii. MPC §3.04
a. uses a wholly subjective standard, requiring jury
to look only at what D believed the situation to be
b. broader than imminence req: "justifiable when
the actor believes that such force is immediately
necessary for the purpose of protecting oneself"
1. policy: is this wise? letting people set
their own standards for permissible use of
force?
c. however, if D formed his belief recklessly or
negligently, then he could be convicted of a
homicide with one of these types of MR
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e.. Objective, Subjective, or a Mixed Standard?
(which standard to we apply to 1) imminence, 2)
proportionality of response, and 3) triggering mechanism:
for exam)
a. State v. Wanrow
1. what is "reasonably believed" should take
into account how a D's beliefs are affected
by his/her gender, physical size, etc.
2. to what extent do we incorporate the D's
knowledge of the V's past bad acts.
3. no specific triggering mechanism in this
case
iii. Battered Woman Syndrome (subjectivity) and Beyond
a. State v. Norman
1. Appeals court: believes battered wife
syndrome and sees it as a justification for
killing in self-defense; no imminence req,
says inevitability is sufficient
2. Supreme court: harm must be imminent3
b. Should imminence be removed?
1. Use excuse (rather than justification)
based on impaired rationality or volition
2. simply permit justification where
circumstances merit removal of imminence
req
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the imminence requirement is the only thing that ensures killing in self-defense will be
used as a last resort
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3. DEFENSE OF OTHERS
a. the MPC §3.05 standard
i. a person is justified in the use of force against another if
a. a reasonable person in the actor's position would
believe his intervention to be necessary for the
protection of the third person and
b. in the circumstances as that reasonable person
would believe them to be (subjective), the third
person would be justified in using such force to
protect himself
1. i.e., "self-defense" by proxy
c. the force employed must, of course, be
proportional
ii. Policy: to prohibit such a justification would increase
alienation of individuals within society from each other
iii. MPC § 3.05 must be interpreted in light of 3.04 and
3.09.
b. "alter ego" rule
i. CL – one is not privileged to defend to a greater degree
than the person himself (i.e., if third person was not
privileged to use resistive force, then anyone who assists
him is guilty of a crime)
4. DEFENSE OF PROPERTY/HABITATION
a. deadly force rarely justified to defend mere property; non-deadly
force can be justified to defend property
i. except when life threatened at same time (e.g., armed
robbery)
ii. when threat of dispossession from house by felony
b. MPC §3.06 – Deadly force permitted if
i. person attempting dispossession from house
ii. person attempting felonious destruction or theft of
property and has:
a. threatened deadly force vs. actor or
b. without deadly force, actor will be exposed to
SBI
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CL: protection from any felony; California and MPC merge protection of property with
protection of self except in case of dispossession; Illinois statute is more broad and
permits killing after mere invasion of home.
5. NECESSITY ("Choice of Evils"): a utilitarian defense (p. 535)
a. General Principles; CL requirements (Primarily an objective
standard defense):
i. D faces choice of evils (created by natural situation;
coincidence)
ii. harm is objective and immediate
iii. causal connection between harm and conduct
iv. D chooses the lesser harm (objectively determined) to
avoid greater harm
1. if harm is equal (e.g., you were faced with death
and you took a life), then no justification
v. no legal alternatives/no legislative (as voice of society at
large) preclusion
vi. situation not self created (used in some courts)
b. MPC §3.02 (p. 530-532)
i. (subjective) actor must believe that his conduct is
necessary to avoid an evil (that is, a causal connection
between actor's action and alleviation of the harm)
ii. (objective) necessity must arise from an attempt to avoid
an evil or harm that is greater than the evil or harm sought
to be avoided by the law defining the offense charged (D
chooses lesser harm)
iii. (objective) balancing of evils is not committed to the
private judgment of the actor – a fact-finder will decide
iv. (objective) the particular choice made has not been
precluded by legislative act (or no legal alternatives exist)
v. necessity will exculpate unless the crime involved can be
committed recklessly or negligently
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c. Civil Disobedience: United States v. Schoon
i. Indirect civil disobedience, because it attacks a symbol of
harm, rather than preventing harm itself, can never be
subject to necessity defense
a. legal alternatives (e.g., lobbying) exist to gain
what people want
ii. Direct civil disobedience may be subject to it. If the act
committed may reasonably believe that the action will
directly affect the harm (i.e., a fairly direct causal
connection).
d. Necessity as Defense to Murder?
i. No. The only defense to murder is self-defense or
defense of a third person.
ii. MPC §3.02 does not specifically exclude homicide from
the "choice of evils" defense, but leaves it up to courts to
elaborate the limits of the defense
D. Principles of Excuse
1. Why excuse wrongdoers?
a. the law is concerned for the person accused who has not made a
culpable choice to break the law (utilitarian)
i. culpability implies moral criticism; if a person's action
does not deserve criticism, then there should be no
culpability
2. Theories underlying excuses
a. Causation (non-utilitarian): a person should not be blamed for
conduct if it was caused by factors outside of his control
i. e.g., mental illness; coercive threat
b. Character: excuses should be recognized in those circumstances
in which bad character cannot be inferred from the offender's
wrongful conduct
i. e.g., rob a bank because someone threatened to kill your
kids if you didn't
ii. problem: so why do we punish people with good
character who make a stupid mistake?
c. "Free Choice" (or Personhood): one can be punished if one
entered into criminal act knowing all facts and punishments for the
act
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3. DURESS [focus on D's mental state]
a. General Principles
i. Three elements of duress defense:
1) (sub/ob hybrid) immediate threat of death or SBI
2) well-grounded fear that the threat will be carried
out
3) no reasonable opportunity to escape the
threatened harm
4) actor was not at fault in exposing himself to the
threat
iii. MPC §2.09
1) offender was coerced by use of, or threat of,
unlawful force [not necessarily deadly] against his
person or the person of another [not just close
family], and a person of reasonable firmness in
his situation (sub/ob hybrid) would have been
unable to resist [more restrictive mental state; since
society doesn't benefit regardless of the choice, the
choice MUST have been reasonably compelled]
2) no imminence requirement
3) defense unavailable if offender placed himself in
the situation by recklessness or negligence
b. Necessity versus Duress4
iii. Necessity normally arose from some sort of natural
factor (a chance coincidence) whereas duress normally
arises from a human element (gun to head, etc).
iv. Necessity negates AR (i.e., there is no social harm);
Duress negates MR (i.e., actor has no free will for actions).
4. i. People v. Unger: prison escapee does not fit neatly into either category; but necessity
(choice of evils) appears most applicable.
ii. Policy: society's interests in preventing escapes must, in all but the most egregious
cases, out weigh the interests of the individual defendant.
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4. VOLUNTARY (SELF-INDUCED) INTOXICATION
a. Commonwealth v. Graves: under traditional CL, intoxication
was never an excuse for a crime; modern CL saw intoxication as a
mitigating factor to drop the crime down from specific intent to
general intent.
i. that is, voluntary intoxication is relevant to the question
of the capacity of the actor to have possessed the requisite
intent of the crime charged
ii. D can use his drunkenness to prove that he did not have
the requisite MR for the specific intent crime
b. Policy: to permit intoxication to be an excuse, it would open the
door to frauds and perjuries by persons to enable them to escape
prosecution
c. MPC §2.08
i. intoxication is not a defense unless it negatives an
element of the offense
ii. it does not negative recklessness
iii. intoxication is not mental disease
iv. involuntary intoxication or pathological [grossly
excessive] intoxication is a defense
d. chronic abuse of intoxicants may, however, create a mental
disease, thus permitting an insanity defense
Note the decreasing levels of capacity (and the results?):
premeditation  EED/HOP  Diminished Capacity  Insanity
5. INSANITY
a. Procedural context
i. Competency to Stand Trial
a. must be able to consult with a lawyer "with a
reasonable degree of rational understanding"
b. concern is only with person's mental state at time
of trial, not at any other moment
c. presumption that you are competent
d. a D must prove incompetence to stand trial by a
preponderance of the evidence
i. if court notes possible lack of competence,
then court can raise the issue sua sponte
21
ii. Pre-trial Assertion of the Insanity Plea
a. insanity is a defense to the MR, not the AR of the
crime
iii. Burden of Proof at Trial
a. insanity is an affirmative defense
b. presumption of sanity
c. most states place burden of persuasion on the D
i. D must first make a prima facie showing
that they are insane (mention this 1st step)
ii. then evidence must be presented
a. if burden of persuasion is on
prosecutor, then he must show the D
is sane
d. burden is normally preponderance of evidence
iv. Post-trial Disposition of Insanity Acquittees
a. NGRI (not guilty by reason of insanity)
i. most states: automatic commitment
b. GBMI (guilty but mentally ill)
i. committed until sane; placed in prison for
remainder of term
v. New Strategy for Civil Commitment
a. repeat sex offender; still viewed as a danger and
has perverted impulses; state puts him in mental
hospital
b. Why Excuse the Insane?
i. One who is truly insane cannot be rehabilitated or
deterred, and morally we should not seek retribution
against him
ii. A man who cannot reason cannot be subject to blame.
iii. The law of criminal responsibility has its roots in the
concept of free will; when one's free will is impaired,
should they be subject to that law?
22
c. Five tests for Insanity (State v. Johnson)
-Two prongs: prove a mental defect, and then . . .
-Some test are cognitive, others volitional, others mixed; know
which!
-All except federal rule are proved by preponderance of evidence
i. M'Naghten Rule
a. defect of reason, from a disease of the mind,
made D not know the nature and quality of his act
b. if he did know the nature and quality, then he did
not know it was wrong.
i. criticized because did not recognize
degrees of incapacity (i.e., it's all-ornothing); requires a high degree of
incapacity
ii. if "know" is interpreted narrowly, insanity
difficult to prove
iii. if "know" is broadly, then insanity easier
to prove (State v. Wilson)
ii. "Irresistible Impulse" or "Control" Test
a. insane if, at time of offense, loss of control
caused by insane impulse (volitional); know action
is wrong
i. criticized for its all-or-nothing nature and
a. if there had been prior resistance
to the impulse, the test would fail –
requires total incapacity
ii. excludes crimes not committed in a fit of
rage
iii. Durham or "Product" Test
a. crime would not have occurred but-for (i.e., it
was a product of the) mental disease or defect (no
separation of volitional and cognitive aspects)
i. failed to define disease or defect
ii. abandoned because only needed to
show mental illness; expert witnesses tended
to decide the case, rather than jury
23
iv. MPC Test, §4.01 (M'Naughten + Impulse test)
a. a person is not responsible for conduct if, at time
of conduct, as a result of mental disease or defect,
he lacks substantial capacity (not all or nothing;
not total incapacity):
i. either to appreciate the criminality
[wrongfulness] of his conduct (cognitive
impairment) [NB, MPC by its language can
recognize either moral or legal wrongs]
ii. or to conform his conduct to the
requirements of the law (volitional
impairment)
a. no irresistible impulse req.
v. Federal
a. as a result of severe mental disease or defect, D
was unable to appreciate the nature and quality or
the wrongfulness of his acts (i.e., similar to
M'Naghten)
b. D must prove by clear and convincing evidence
d. M'Naghten and the MPC in Greater Detail
i. Knowing vs. Appreciating the "Wrongfulness" of One's
Actions (the cognitive requirement): State v. Wilson
a. Public Morality Test: D lacked substantial
capacity to appreciate the wrongfulness of his
actions if, at time of act as a result of mental disease
or defect, "he substantially misperceived reality and
harbored a delusional belief that society, under the
circumstances as the defendant honestly but
mistakenly understood them, would not have
morally condemned his actions."
(subjective/objective hybrid).
i. this is how court says that MPC should be
interpreted
24
e. Should Insanity Defense be Abolished?
i. Yes: too many wrongdoers use it to escape punishment
ii. and insanity supposed to remove stigma of criminal
conviction? is not insanity a stigma? convictions should
simply be a determination of dangerousness to which
community must respond
iii. traditional policy argument against maintaining (634)
iv. No: it is rarely used and even more rarely successful
6. DIMINISHED CAPACITY (many jurisdictions removing this)
a. permits D to introduce evidence of mental abnormality at trial
i. either to negate a mental element of the charge (MR
variant)5
a. thereby exonerating D
ii. or to reduce the degree of the crime for which D may be
convicted, even if conduct satisfied all other reqs of higher
charge (partial responsibility); a form of insanity defense
(643)
a. e.g., HOP killing
b. Arguments against dim cap
i. too subjective and does not draw a bright line the way the
insanity defense does (647)
ii. also, if Dim Cap retained, people could be in jail for a
really short time, when they "deserved" to be in their for
life
iii. allows holes in sentencing
c. MPC § 4.02
i. permits introduction of mental disease or defect evidence
whenever it is relevant to prove or disprove the existence of
any mental state.
ii. recognizes partial responsibility variant
a. e.g., extreme emotional distress
5
NB: Some say that this should not be considered a form of insanity defense, but is rather
simply a D asserting his constitutional right to present evidence to deny certain elements
of the crime; in this case, the MR requirement (642)
25
IV. Inchoate offenses
Spectrum of criminal offenses:
solicitation  conspiracy  attempt  substantive crime
A. ATTEMPT
1. Forms of attempt:
a. incomplete: only some elements of crime realized before
interrupted
b. complete: all elements realized but unintended result (e.g.,
shoot gun at person, but bullet misses)
2. Merger operates
a. i.e., cannot be convicted of attempt if offense was completed
b. however, attempt is deemed a lesser, included offense
3. Policy: attempt probably offers little specific deterrence, but it does
permit law enforcement officers to intervene before an individual can
commit a completed offense
4. MPC §5.05 – Grading inchoate crimes
a. holds that except where completed offense is punished by death,
attempt should receive the same punishment as completed offense
5. Components of Attempt:
a. Mens Rea: (as with all inchoate crimes, specific intent;
purposeful is req'd)
i. CL - must have highest level of intent for a conviction of
attempt
1. e.g., attempted murder can only be successful if
the MR was intent to kill (not reckless)
2. Ensures that only obviously culpable receive this
high punishment
ii. MPC: have same level of culpability (MR) as completed
crime and
1. take a substantial step to completion
2. engage in conduct that would be a crime if
circumstances were as actor believed them to be
3. Causing a particular result is an element of the
crime, and actor does or omits something with
purpose or belief it
will cause that result
26
b. Actus Reus
i. AR: when does this attach?
ii. preparation vs. perpetration (713n5); mere preparation is
not enough: CL tests (see 716-717 for examples)
1. physical proximity6
i. overt act must be proximate to completed
crime or directly tending toward completion
of crime or amounts to commencement of
consumation
2. dangerous proximity
i. the greater the gravity and probability of
the offense, and the nearer the act to the
crime, stronger the case for calling it attempt
3. indispensable element
i. emphasizes any indispensable aspect of
the criminal endeavor over which the actor
has not yet acquired control
ii. if involving a conspiracy, one member
cannot be guilty of attempt until the other
performs his part of the crime7 (see Peaslee)
4. probable desistance
i. conduct is attempt if, in ordinary/natural
course of events, it will result in the crime
intended
ii. would go ahead with criminal conduct,
but-for the intervention of another force
5. abnormal step
i. conduct goes beyond the point where a
normal citizen would think better of his
conduct and desist
6. res ipsa loquitur/unequivocality
i. conduct manifests an actor's intent to
commit a crime
ii. this is the most generous of the tests (e.g.,
acts that would be attempt in MPC are not
attempt under this test; cf McCloskey)
6
how close in space and/or time you are to final overt act of the crime
Attempt is a derivative offense (i.e., everyone has to attempt to get to his portion of the crime. Under
accomplice, however, he would probably be guilty of something.
7
27
iii. act that constitute AR must be intentionally performed
(i.e., there must be specific intent to qualify as attempt)
1. can an omission constitute AR for attempt?
a. Under MPC 1.13(5) "omission" can equal
conduct, therefore, under 5.01(1)(b)
omission can be corroborative of a criminal
purpose.
iv. MPC: criteria for substantial step8
a. possession of materials to commit crime
and can serve no lawful purpose
b. possession at or near place of commission
that can serve no lawful purpose
c. lying in wait; searching for victim
d. enticing or seeking to entice victim to
intended spot of commission
e. reconnoitering the place contemplated for
commission of crime
f. unlawful entry into place where
contemplated to commit crime
g. soliciting an innocent agent to engage in
conduct constituting an element of the crime
v. CL vs. MPC tests
1. proximity tests focus on what remains to be
done
2. substantial step tests focus on what has already
been done
i. this tends to extend liability for attempt
ii. does not impose liability for remote
preparatory acts
8
"strongly corroborative" of the commission of crime (see circumstances listed in outline)
28
6. Special Defenses to Attempt
a. CL - Impossibility
i. circumstances beyond accused's control make it legally
impossible to commit a crime, there can be no attempt to
commit the substantive offense
e.g., no victim in being; i.e., woman dead, so can't
rape her even if penetration [no SH]
however
ii. a physical impossibility unknown to accused rendering
the accomplishment of crime impossible retains criminal
attempt (impossibility in fact) [punishable as attempt in
majority of jurisdictions]
e.g., can't get it up, so no rape possible [no complete
AR]
iii. MPC does not permit this defense (§5.01(1)(a))
a. however, if actor thinks he violated law, but no
such law exists, he can't be convicted merely for his
faulty "criminal" intent = pure legal impossibility
(750n7)
b. Abandonment at CL and MPC (McCloskey)
i. cannot have begun commission of crime
ii. must voluntarily abandon course toward crime
1. MPC §5.01(4) codifies this: "it is an affirmative
defense that actor abandon his effort to commit the
crime under circumstances manifesting a complete
and voluntary renunciation of criminal purpose"
2. renunciation cannot be from fear of being
captured or motivation from external
circumstances
iii. only applies to incomplete attempts
1. however, if SH has resulted before target offense
is completed, then we may refuse to apply
abandonment (755n2)
iv. cannot renunciate a completed attempt; but MPC
permits raising of the defense until the point of the
penultimate step of attempting the target offense
29
B. ASSAULT
1. CL – attempt, coupled with present ability9, to commit battery; later
included mere menacing (without present ability to inflict harm)
a. battery: use of force to cause injury to another
2. MPC §211.1
-omits requirement of present ability to succeed; brings assault into
the same standard of attempt (NB: must have a substantial step
present)
a. Simple assault
i. intentional/reckless infliction of bodily harm or
ii. negligent infliction of harm w/deadly weapon or
iii. put another in fear of imminent SBI
b. Aggravated Assault
i. intentional/reckless infliction of infliction of injury with
extreme indifference to value of human life10
ii. intentional attempt to cause injury to another with a
deadly weapon
c. Reckless endangerment
i. recklessly engages in conduct that may or does place
others in danger of death or SBI
3. No such thing as attempted assault, for assault is an attempt
C. SOLICITATION
1. CL -asking, enticing, inducing, or counseling of another to commit a
specific crime or specific type of crime
i. aka, an attempt to conspire
ii. solicitation must actually be communicated to other person
2. MR is purposeful, i.e., specific intent
3. AR is the communication
(AR and MR prove each other; circular)
4. MPC §5.02
i. solicitation merges with the latter offense if it is committed or
attempted
ii. permits conviction for solicitation even when D does not
complete the communication, but his conduct was designed to
effect such a communication
iii. abandonment is an affirmative defense to solicitation
iv. solicitation punished at same level as target crime
9
e.g., Under CL, pointing an unloaded gun an pulling trigger is not assault, but can be attempted murder.
Assault is much stricter and requires present ability to inflict harm; attempt is easier to prove.
10
group all crimes based on "value of human life"; depraved indifference, etc into groups
30
5. Exceptions
i. D requests X to perform a legal act that D can commit a crime
a. under CL, D is not guilty of solicitation
b. MPC: maybe guilty; no specific requirement that the
solicitation is to do an illegal act, just assist in crime
good review problem, 764n7
D. CONSPIRACY an agreement between two or more persons express or
implied to do either an unlawful act or a lawful act by unlawful means; MPC §
5.03 is the same except it requires an overt act in furtherance of the agreement
1. Mens Rea
a. two-fold, bifurcated specific intent required
i. intent to combine with others
ii. intent to accomplish the illegal objective
b. intent must be express, not implied (779)
c. mere knowledge of another's criminal acts is not the same as
purpose or intent to form an agreement
d. attendant circumstances (e.g., if crime is "conspiracy to assault a
police officer," do the accused need to know it was a cop and not
just some random guy?)
e. by the Pinkerton doctrine (769), one is liable for all substantive
offenses carried out by fellow conspirators in furtherance of the
conspiracy and reasonably foreseeable until one takes an
"affirmative action" to withdraw from the conspiracy
i. this CL doctrine makes minor participants guilty
ii. MPC disfavors punishing minor parties
f. establishing an agreement
i. show a tacit, mutual understanding to accomplish
unlawful act
g. MPC §5.03
i. bifurcated specific intent
31
2. Actus Reus
a. the crime is complete upon formation of the agreement
i. at CL - does not even require a substantial step toward
attempt to convict, but often need it to prove at trial
ii. agreement can be tacit (look at circumstances; i.e.,
circumstantial evidence)
a. present at scene
b. relationship with perpetrators
c. with perps before and after
d. knowledge of commission of the crime
iii. some courts hold that the agreement can occur as the
criminal act begins in process (Azim); while others hold
that there must be a clear agreement before the criminal act
begins (Cook)
b. completed offense is a separate crime
i. conspiracy does not merge with substantive crime when
conspiracy is on-going (let's rob banks together)
1. exception under MPC 1.07(1)(b): if conspiracy
for a single crime, then it merges
c. MPC
i. requires an overt act (much less than substantial step;
and often less than basic preparation)
1. exception: no overt act req'd for conviction when
target crime is a first or second degree felony (i.e.,
when you have a serious crime)
ii. punished at same level as target offense
d. general considerations
i. aiding and abetting is not the same as conspiracy
1. key: was there prior planning?
ii. conspiracy often proved by circumstantial evidence
1. association of alleged conspirators
2. knowledge of commission of crime
3. presence at scene of crime
4. participation in object of conspiracy
32
3. Bilateral or Unilateral?
a. bilateral: two or more people must actually agree to participate
(a feigned agreement is not sufficient AR)
i. if all alleged conspirators are tried in a single trial and
only one is convicted, then the charge cannot stand
b. unilateral: a single person intends to agree to a conspiracy and
is thus guilty regardless if his agreement is reciprocated
i. unilateral conspiracy is similar to solicitation
ii. MPC uses unilateral theory
c. courts disagree over which to apply
i. issue normally arises when one of the parties is an
undercover agent who has no intention of truly agreeing
1. policy: we should permit the unilateral theory
because it is a way to get dangerous, antisocial
people off the streets
4. Scope of an Agreement: Party and Object Dimensions
a. can be a member of conspiracy even if:
i. identities of fellow conspirators unknown and
ii. not aware of details of the plan of operation
iii. agreement of all participants need not occur at the same
time
b. chain conspiracies11
i. inference of agreement easier here
ii. everyone has a community of interest in that
1. the success of one member's part is dependent
upon success of the whole enterprise
2. therefore, lack of communication or contact
between the members is not a bar to conviction
11
usually involve distribution of narcotics or other contraband in which there is successive communication
or cooperation
33
c. wheel conspiracy
i. there exists a hub, or common source of conspiracy who
ii. deals individually with different persons ("spokes") who
do not know each other
iii. inference is more difficult because the spokes are less
likely to have a community of interest or a reason to know
of each other's existence because each spoke's success not
dependent on other spokes
iv. community of interest test (to show an overarching
conspiracy; not just a bunch of individual conspiracies to
which the hub is party; and success of each spoke unrelated
to success of other spokes)
1. each spoke knows that the other spokes exists
2. each spoke realize that all spokes together have a
community of interest
d. ongoing conspiracy
i. when a group of people commits various illegal acts over
time, so long as they are in furtherance of an original goal,
there can be only one count of conspiracy against them
ii. this can be overridden by statutes addressing
conspiracies to commit specific illegal acts (814n1)
e. MPC
i. knowledge that a co-conspirator has conspired with other,
even unknown parties, to commit the same crime12 makes
D guilty of conspiracy with those other parties
ii. multiple crimes: only implicate a single conspiracy
charge if:
1. the crimes are object of the same agreement or
2. a continuous conspiratorial agreement
12
NB: under CL, it can be any number of crimes; MPC is the SAME crime
34
5. Defenses to conspiracy
a. abandonment is an affirmative defense
i. if withdrawal is complete and voluntary, communicated
to the co-conspirators and accomplished before commission
of an overt act
1. i.e., conspiracy is complete upon the commission
of the overt act
2. if withdrawal done after the overt act, then D is
guilty of conspiracy, but has no liability for future
acts committed by the remaining conspirators
ii. MPC §5.03(6)
1. renunciation is an affirmative defense if such
renunciation thwarted the success of the conspiracy
2. abandonment: otherwise, notifying coconspirators or authorities limits future liability only
b. Wharton's Rule
i. where substantive crime is defined as requiring a plurality
of agents, a prosecution for the substantive offense rather
than a conspiracy must be brought if only that number of
people involved
1. e.g., adultery, incest, bigamy, dueling
2. policy: as Wharton's Rule normally applied to
offenses not likely to harm anyone outside of the
two participants, it is not necessary to apply it to
crimes designed to harm larger numbers (e.g.,
gambling statute)
ii. third-party exception: when more people than
necessary are present to commit the crime, then conspiracy
may be charged
iii. modern courts
1. Wharton's Rule is merely a presumption rather
than a set rule (Iannelli)
2. often permit trial on conspiracy and substantive
charge, but if convicted on the substantive charge,
then the conspiracy charge is dropped
iv. MPC, provides for merger in all cases, therefore
Wharton Rule cannot apply
35
c. Gerbardi Rule: no conspiracy where legislature intended only
to punish one of the parties for the crime; that is, you can't punish a
person in the class of people that the statute intended to protect
(e.g., 820ff)
i. MPC § 5.04: if one person in alleged conspiracy is
immune to prosecution (or mentally incompetent), this will
not bar the other person from conviction for conspiracy
NB: don't have to be at scene of crime to be convicted as a conspirator
IX. ACCOMPLICE LIABILITY (derivative from acts of another)
accomplice liability: no agreement; just intent for the crime and encouragement
A. Nomenclature: modern CL and MPC
1. Principal
a. one who commits the AR
2. Accomplice
a. one who assists or encourages the AR, whether present or not at
commission of crimes
3. Distinction?
a. as the punishments are exactly the same in most jurisdictions,
the only distinction is that accomplice can't be convicted unless
principal is first
b. a principal cannot be convicted on the testimony of an
accomplice unless there is separate corroborating evidence
(Helmenstein)
B. MR
1. Dual Intent
a. intent/purpose to aid/assist the primary party (normally an
affirmative act)
i. split of authority: purposeful intent to assist criminal vs.
mere knowledge that acts do render assitance (cf. Luria)
b. intent/purpose that such assistance result in the commission of
the offense charged
36
2. Intent Distinguishable from that for Attempt and Conspiracy
a. being an accessory is not a crime in itself like attempt and
conspiracy; a substantive crime must be committed
b. unintentional crimes
i. one cannot attempt or conspire to commit an
unintentional crime (e.g., negligence homicide)
c. intent not always necessary
i. under MPC (§2.06(4)) and similar, all that is required for
accessory is the same mental state req'd for a particular
result of the crime while intentionally aiding or agreeing
with another; therefore, negligence is sufficient
ii. natural and probable consequences doctrine
1. liability for secondary crimes w/o intent if:
a. actor intended to promote the primary
crime and
b. commission of the secondary crime was a
foreseeable consequence of the actor's
participation in the primary crime13
iii. attendant circumstances
1. split of authority: knowledge of circumstances
might be required
3. MPC § 2.06
a. acting with culpability sufficient for the offense
b.
c. accomplice with another in commission of the offense
13
first, show that principal committed target offense; second, prove that accomplice is an accomplice; third,
show that the secondary crime was a natural and probable consequence; therefore, accomplice will be liable
for the secondary crime as well
37
D. AR
1. Various forms
a. solicitation/procurement of persons to commit the offense
b. furnished an instrumentality used in the commission of the
crime
c. provided other significant active aid in the perpetration of the
offense
2. Close cases
a. relatively slight aid
i. no req that the act of the accomplice be a but-for cause of
the crime (871n2)
ii. if one aids but the target offense is never committed,
then no conviction possible as accomplice
b. aid by omission rather than act
i. mere presence – accompaniment and observation – is not
aid (Vaillancourt)
ii. other courts hold that presence, if it acts to
encourage/support in some way, is accomplice (e.g., lookout); aka "presence coupled with some other factor"
1. approving presence, especially one that leads to
profit for the person present is accomplice liability
3. MPC § 2.06
a. Three types of AR
i. solicits an other person to commit crime
ii. aids or agrees or attempts to aid other person in planning
or committing crime
iii. failure to prevent the commission of the crime if under a
legal duty to make such an effort
b. attempting to aid in a crime that is never carried out can be
found guilty of accomplice (§ 5.01(3))
i. e.g., sting operation
38
4. Limits of Accomplice Liability
a. Abandonment
i.
5. MPC §2.06(7)
a. accomplice can be convicted even without the principal being
convicted (unless principal and accomplice tried at same trial)
Extra stuff:
Threat B a communication objectively indicating a serious intention to inflict SBI (MR)
B communication is also conveyed for the purpose of furthering some goal
through the use of intimidation (AR)
- must intimidate person to whom threat is directed (see Alkhabaz; Green spent a
lot of time on this)
NB: remember that if statute has a mens rea missing, can be filled in with any level of
intent other than negligence.
Random Notes
"A conviction upon circumstantial evidence alone is not to be sustained unless the
circumstances are inconsistent with any reasonable hypothesis of innocence."
39