Criminal Law Outline
Prof. Levenson
Spring 2008
I. Purposes of Punishment
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EXAM TIP: When asked whether a sentence is proper, students should evaluate
the sentence under all theories of punishment.
There is no victimless crime bc society is the victim
2 main theories of punishment= retributive and utilitarian
A. Retribution
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D deserves to punished
D needs to pay debt to society
Punishment sends a message that society has certain moral norms that cant
be violated.
Immanuel Kant: Retribution is a form of social revenge
An eye for an eye.
Retribution looks backward—punishes D even if it wont deter future crim
conduct
Problems: it’s a model of vengeance; some crimes cant be paid back;
Regina v. Dudley and Stephens: D’s were sailors who were shipwreckes
and starving. D’s killed and ate another sailor to survive. Court found
them guilty under retribution theory –it was necessary to send the message
that what D’s did was wrong.
B. Deterrence
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Utilitarian theory of punishment
Jeremy Bentham—if the costs of committing a crime are greater than the
benefits, then a person will not commit the crime.
General vs. Specific Deterrence:
o General Deterrence: Punishment of D is used as an example to
deter others from committing the same crime.
o Specific/Special Deterrence: Punishment used to discourage D
from repeatng criminal behavior.
Problems: ineffective in cases where criminal is motivated by emotion bc
criminal wont do cost-benefit analysis; improperly punishes one person
solely to benefit another.
US v. Bergman: D defrauded the government and medicare. 2 grounds
justified imprisonment—general deterrence and retribution. White collar
crimes are the most deterrable offenses bc offenders calculate the benefits
and risks of their behavior before acting. Retribution was necessary to
proclaim the court’s judgment that the offenses were grave, not minor.
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C. Rehabilitation/Reform
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Desire to make people better
Problems: wrongly allocates precious societal resources to those who
least deserve it; assumes people will change.
D. Incapacitation
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Put people in prison so that they wont commit any more crimes against
society.
Problems: too costly, ineffective, assumes arent partaking in crim
activities while in prison.
E. Morality and the Law
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Moral values provide the basis for society’s criminal laws.
Bowers v. Hardwick and Lawrence v. Texas: Cases show how
punishments for certain crimes are determined by society’s changing
values. How do we figure out what morality is?: Lawrence court looked at
HISTORY: (1) court rejects CL bc times have changed, (2) although many
states have anti-sodomy laws, they are often ignored and not enforced, (3)
rejected Judeo-Christian morality bc need to separate church and state.
Bowers got the morality wrong.
o Ultimately, this case holds that the morality of today is that the
government leaves you alone and therefore, there is freedom for
private consensual acts.
o [Malum In Se= crime that is bad in itself, such as a felony—any
crime punishable by more than one year in prison. Malum
Prohibitum= crime bc legislature says so, such as misdemeanor—
punishment is one year or less]. These are Common Law.
o In Bowers, the punishment was 20 years—treated as Malum in se
crime crimes (felony).
If there is too much law, allows for discrimanatory enforcement. Ex,
Lawrence was prosecuted bc he was white and gay and his partner was
black and gay. Too much law allows for excess criminalization,
discriminatory enforcement, use of police force.
Commonwealth v. Mochan: Man suggested elicit acts to a woman and was
charged with corrupting morals. He argues no crime on the books when he
committed the act but court said they can still charg him bc the nature of
the act was so scandalous. Dissent says this is wrong—morality is not the
job of the courts, but for legislature. We have since dumped the
commonwealth and have adopted statutes—no more crimes against
morality.
II. Elements of a Crime
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Elements of crime commonly include actus reas, mens rea, attendant
circumstances (eg, status of victim), and result (harm caused).
A. Actus Reas (Criminal Conduct)
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All crimes require D to commit a voluntary act. The act may be positive (hitting
another) or an omission (failure to act when have legal duty to do so).
Identifying the AR: The definition of each crime will include the AR. Ex,
Homicide: unlawful killing of another human being. The act required is killing.
Verbal conduct may be sufficient to constitute the AR of a crime such as treason,
sedition, solicitation, conspiracy, or aiding and abetting.
1. Positive Acts
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RULE: All physical acts must be voluntary. A voluntary act is any act that
is the result of conscious and volitional movement (brain must be
engaged). Must be voluntary bc purposes of punishment don’t apply
unless voluntary.
o Even if act is coercerd, it is still voluntary. Ex, D is forced at
gunpoint to rob a bank. This is voluntary bc brain is engaged, she
made conscious decision to perform act eventhough it was coerced.
Voluntary is anything that’s not involuntary (automatism-body is acting
but mind is not engaged): MPC 2.01:
o Reflex or convulsion
 People v. Newton: D shot officer after he was shot himself
and claims he was unconscious at the time when he pulled
the trigger. Court held he had a right to have the jury decide
whether the act was voluntary.
o Unconscious or asleep
 Mrs. Codgen killed her daughter with an axe while in a
sleep state—jury acquits her bc it was not a voluntary act.
o Hypnosis
o Bodily movement not product of D’s efforts
 Martin v. State: Officers went to house of D and took him
to the highway, where he was drunk on a public highway
and was charged with this crime. However, cant be charged
with this crime bc the act was not voluntary—police brougt
him to highway.
 Grand Canyon Hypo—someone pushes A and A hots B
and B died in Grand Canyon. Not A’s fault bc not a
voluntary act by A.
Habit: A habit is still a voluntary act bc the brain is engaged. Ex, D
routintely speeds down a particular street and one day she hits someone bc
she is unaware she is speeding—D is still responsible for speeding.
Extending AR: Prosecutors want a broad reading of AR, while defense
lawyers want a narrow reading. ON EXAM, argue narrow and broad
reading of AR.
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o People v. Decina: Man knows he is subject to epileptic attacks. He
hit someone while driving during an attack. If you stretch out the
AR to include acts before the seizure then it’s a voluntary act bc he
knoew he suffered from seizures. However, defense lawyer should
argue that if the act is stretched out too far, people will be deterred
from even getting out of bed in the morning—it would deter
people from freedoms they should have. Here, court held act was
voluntary bc his AR began when he decided to drive with his
condition.
Hypos in handout 3.
2. Omissions
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RULE: There is no legal duty to help another facing harm. Therefore,
failure to act only constitutes an AR when there is some other specific
duty to act.
Rationale: American tradition of individual freedom, difficulty of knowing
how much help one must provide others in life, fear of diverting attention
from perp of the crime to the bystander, possibility that Good Samaritans
may face undue risk of harm.
EXCEPTIONS:
o By Statute (civil or criminal)
o Status Relationship:
 Parent-child,
 employer-employee,
 spouse-spouse,
 owner-customer.
 Master-apprentice
 Ship’s master-crew
 Innkeeper-drunk customers
 Doctor-patient
 Informal relationships do not trigger duty to care. Doesn’t
apply to brothers and sisters or bf/gf. FN in Beardsley Case.
o Contractual Duty: Ex, babysitter, lifeguard, eldercare.
o Voluntarily assume care of another. Ex, inviting drunk person into
home triggered duty to care.
o Put someone in peril.
Pope v. State: Pope took mom and infant into house and mom had mental
problems. While at Pope’s house, mom beat infant. Pope didn’t do
anything to stop it. Infant died that night. Pope charged with child abuse
and failure to help infant. Court held not guilty bc no duty to help infant.
Omissions vs. Acts:
o Barber v. Superior Court: Deceased underwent sugery, suffered
cardiac arrest, put on life support, family requested he be taken off,
doctors removed life support and tubes giving him nourishment. Is
this a positive act or an omission? Court holds it is an omission.
Court concludes that the cessation of life support is not an
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affirmative act but rather a withdrawal or omission of further
treatment. Looks like they are pulling the plug, but rather they are
just not plugging plug back in.
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B. Mens Rea
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MR = Culpable Mental States
Reckless is the default meaning of any statute that doesn’t make sense.
dsf
1. Common Law Terminology:
 Maliciously: Older cases refer to D acting maliciously. This just means
that D realized the risk and engages in the conduct anyway. MPC term for
this level is recklessness.
o Regina v. Cunningham: D stole a gas meter and in doing so almost
asphyxiated the woman in the house, unbeknownest to D. Law
required that D act maliciously, ie, D acted recklessly.
o Regina v. Faulkner: A sailor went onto ship to steal rum and
caught the ship on fire. Convicted of maliciously setting fire to the
ship. Could only be convicted if he acted recklessly—ie, he
considered the risk and disregarded it.
 Specific intent: purpose
 General Intent: recklessness or knowledge
 Intentionally: purpose or knowledge
 With intent to: Purpose
 Willfully: Purpose or knowledge.
2. MPC 2.02:
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1. Purposely: Its your goal, aim to engage in particular conduct or
achieve certain results. Highest level of culpability bc most
dangerous.
i. Motive is not an element of a crime, but it is used to prove
purpose. Motive becomes important during sentencing.
ii. At CL, purposely was called specific intent.
2. Knowingly: Practically/virtually certain that you will cause the
harm.
i. Ex, D puts a bomb on a plane with the goal to destroy cargo
aboard it, but is virtually certain the planes passengers will
be killed as well. With regard to death of passengers, D has
acted knowingly.
ii. At CL, called general and specific intent.
iii. Deliberate Ignorance Doctrine (Ostrich Defense): If D
strongly suspects the fact but consciously avoids learning
the truth so he will not be certain, the courts will find that D
has acted knowingly. Elevates recklessly to knowingly.
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1. US v. Jewell: Drug D did not look in secret
compartment so he could claim that he didn’t know
he was transporting drugs. Court found knowledge
based on deliberate ignorance.
3. Recklessly: Conscious disregard of a substantial or unjustifiable
risk. D is aware of the risk and disregards it. Subjective standard.
i. Ex, D drives past school 60mph during school hours.
Although D doesn’t intent to hit anyone, he relized the risk
that he may do so and continues speeding anyway.
ii. For most crimes, the min level of MR is recklessly.
iii. Knowing vs. Reckless: Difference is one of degree—if D is
so aware of risk that he is virtually certain, then D acted
knowingly. If D is aware of a risk bt not as certain will
occur, D is acting recklessly.
iv. At CL, called general intent.
4. Negligently: He is unaware and takes a risk that an oridinary
person would not take. Should be aware. Objective standard.
i. Ex, D is unaware that his child is suffereing from life
thretening illness and fails to seek medical attention. An
ordinary person would have been aware and sought the
care.
5. Strict Liability: No Mens Rea. If an offense does not require
that D subjectively realize the risk or that he even act negligently,
it is a strict liability cime.
i. If SL crime, NO MISTAKE DEFENSE allowed.
1. Ex, D is charged with having sex with an underage
girl. D claims girl lied to him about her age. D’s
mistakje of age is still not a defense to a statutory
rape charge.
ii. Characteristics of SL crime: slight penalty, regulatory
crime, low stigma.
iii. Justification: industrial revolution, concerns regarding
public safety, increased regulation, burden on system of
proving MR.
iv. To determine whether SL crime, Look at:
1. Language of Statute
2. Legislative History
3. Public Policy/Other Indicators
a. Public welfare offenses (illegal sale of
alcohol, sale of adulterated foods, nuisances,
traffic regulations)
b. Regulated, high risk industry
c. Low punishment
d. Number of cases
v. SL may also be imposed to find a supervisor responsible
for the unlawful acts of a subordinate even though
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supervisor didn’t know subordinate was violating the law=
Vicarious Liability.
1. State v. Guminga: D owned restaurant where
waitress was caught serving alcohol to minors. State
statute imposed liability to owner even though not
directly involved. Minn SC reversed conviction bc
it carried too heavy of a crim penalty for a SL
offense.
vi. Morissette v. US: D was charged with stealing spent bomb
casings that were govt property. D claimed he did not know
property still belonged to govt—thought they were
abandoned. After reviewing history of SL/public welfare
offenses, court held that the mere omission from a statute
of any mention of intent doesn’t make that crime a SL
offense. For CL offenses, the presumption is against SL.
vii. US v. Staples: D was charged with possessing an
unregistered firearm. Statute did not conatin MR
requirement. Even though might appear to be a public
welfare offense, court held that SL cold not be imposed bc
violation of the statute subjected D to a harsh penalty (10
yrs in jail).
viii. DEFENSES to SL Crimes:
1. Challenge AR
a. State v. Baker: D was convicted of speeding.
He claimed his accelator got stuck while on
cruise control (arguing involuntary).
Speeding is a SL offense. Court found it was
voluntary bc he chose to use cruise control.
2. Constitutional Challenges/Good Faith Defenses
a. US v. Kantor: D charged with violating
Child Protection Act bc he filmed a porn
movie with a 16yr old girl. D argues he
didn’t know she was underage—she
provided him with false paperwork, etc.
Court held it was a SL crime, but it violated
the 1st Amendment—therefore, court
created a reasonable mistake of age defense.
D could present a defense of good faith
belief or reasonable mistake as to the
victim’s age. [shifts burden to D to prove
good faith when ordinarily, burden of proof
is on prosecution].
3. Mistake of fact is NOT a defense
ix.
Motive vs. Intent: Intent (MR) is a requirement of a crime, motive
is not. Motive is the underlying reason why D engages in crim
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behavior. Ex of motive is jealously, greed, hatred. Intent is D’s
state of mind as to the consequences of his acts. D may be guilty of
crim even with good motive.
i. Prove INTENT by: (1) Actions, (2) Statements, (3) Motive
Pg 226 in Book—Hypos.
3. Application of MR
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If no MR is listed in statute, the min level of MR applied is
recklessness. The legislature must expreslly indicate in the statute or
its legislative history if it imposes strict liability.
If the element has a MR requirement assigned to it, it is a material
element. Nonmaterial elements include elements relating to the statute
of limitations, jurisdictions and venue.
Hypos in supplement.
C. Mistake of Fact
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RULE: Ignorance of mistake of fact precludes criminal liability if the
mistake means D lacks a mental state essential to the crime charged. Only
a defense if don’t know a material fact.
In order to determine if mistake of fact (a defense) applies, one must
determine what facts D needs to know to be guilty of the crime (material
elements).
A nonmaterial fact is a jurisdictional element.
Ex, It is a crime to knowingly receive stolen goods. D buys goods that are
stolen, but he is unaware of it at the time. D’s mistake of the facts
precludes him from having the necessary MR for the crime.
Determining Which Elements are Material:
o Language of Statute
o Legislative History
o Policy Arguments: what makes the conduct wrong and what
provides the most protection
Regina v. Prince: D was convicted of taking an unmarried girl under 16
years of age out of possession and against the will of her father. D argued
he didn’t know she was under 16. Court held D had no mistake defense bc
a violation of the law didn’t depend on whether D knew the girls age. The
material elements were: (1) taking a girl, (2) without fathers permission.
Age was just a jursidictional element is limit the number of cases. This
case was back in the day and age wasn’t important but rather taking girl
away from father was important. [Need to know the AR and then need to
know that which made your conduct socially wrong?]
US v. Feola: D’s attempted to rob men who turn out to be undercover FBI
and were charged with assaulting a federal officer. D’s argued they didn’t
know they were federal officers and therefore mistake defense applies.
Court rejected idea that federal officer was a material element. Court held
element was jurisdictional (prosecution still has to prove this element, but
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D’s didn’t have to know this to violate law). Here, policy is to protect
police officers.
D. Mistake of Law
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MISTAKE OF LAW IS NO DEFENSE. Rationale—simply by living in
society, a person has notice of what conduct is expected of him. To allow
D to claim mistake of law would put a premium on ignorance of the law.
EXCEPTIONS:
o 1. Negates element of offense
 Magic words: “Without authority of the law” or “in an
unauthorized manner” These are things D has to know and
if you don’t know it then not guilty.
 Here, mistake of law works exactly like mistake of fact.
 Liparota v. US: D is charges with the unauthorized use of
food stamps. D argues he didn’t know that he was acquring
food stamps in an unauthorized manner, Bc the statute
requires that D know that his acquisition is contrary to law,
a mistake of law negates the necessary MR and is a full
defense.
o 2. MPC 2.04/Estoppel Theory
 (a) Official misstatement of the law- statute was written
wrong.
 (b) Judicial Decision- highest court of your jurisdiction
 (c) Administrative Order- ex, commissioner of IRS
 (d) Official Interpretation- Attorney General gets to
interpret.
o 3. No Notice of Regulatory Offense/Lambert Exception
 (a) Omission
 (b) No Notice
 (c) Regulatory Crime
 Lambert v. California: D was charged with failing to
register as a convicted person upon arrival in LA. She had
no notice of the reporting requirement and claimed
ignorance of the law. Court held that in the narrow
circumstances of that case, Due Process required that D be
afforded a defense.
o d
III. Homicide
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RULE: Homicide is the killing of another human being by another human being
with malice aforethought.
MALICE:
o Intent to kill
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o Intent to cause grave bodily harm
o Gross recklessness
o Felony Murder
The AR is the killing (stabbing, shotting, run over, strangle)
The MR depends on what kind of homicide it is bc homicide has different names
depending on the MR. The more MR, the more punishment you deserve.
1st Degree Murder: Willful, deliberate, premeditation
2nd Degree Murder: Malice
Voluntary Manslaughter: Heat of passion
Involuntary Manslaughter: Negligent homicide.
[In CA, a fetus is considered a human at 7-8 weeks].
MPC doesn’t have degrees of murder, but lay out certain kinds of MR. Murder =
Purposely, knowing, and gross recklessness. They have just manslaughter (no vol
and invol); Manslaughter is Extreme Emotional Disturbance. Also includes
negligent homicide.
A. First Degree Murder
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Malice + Premeditation (bc premeditation is a high degree of MR, a D
who is proven to have acted with premeditation will also have acted with
malice).
MR= Willful, deliberate, premeditated.
Carroll Approach: Premeditation means PURPOSEFUL and no time is
too short for premeditation.
o Commonwealth v. Carroll: D killed his wife who had been abusing
their children. After a fight, the couple went to bed and after
thinking for 5 minutes about what wife did to children, D reached
for gun that his wife previously put at head of their bed. Shot her
twice in back of her head. Wrapped her body up in a sheet and
dumped it in a desolate place. Court held any thought even formed
in a matter of second is sufficient to demonstrate premeditation.
o This case makes it easier for prosecution to prove premeditation.
As long as they prove D acted with conscious purpose to kill
victim, jury can find premeditation.
Guthrie/Anderson Approach: Purposeful + Preconceived Design
o Need combination of these factors to prove premeditation:
 1. Planning Activity
 2. Motive
 3. Manner (ex, stab to heart—you want them to die bc go
straight for the heart).
o State v. Guthrie: D, in a panic, killed co-worker who was teasing
him. Court reversed conviction bc jury was not instructed that
premeditattion means something more than an intentional killing.
o People v. Anderson: D stabbed a ten yr old girl. Girl was found
hidden in her home, naked and had 60 wounds. D lived in home as
a boarder and on day of killing he drank a lot and lied to her family
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members about her whereabouts. Court set out factors above and
said need two of them to prove premeditation.
o Most courts take use this stricter approach.
o Ex, D shot and killed police officer who was trying to arrest him.
D argues he panicked but prosecution argued Motive (trying to
escape from police), Manner (D sht the officer directly in chest),
Planning (D chose not to escpae but to stay and kill the officer who
was pleading for his life).
Carol vs. Guthrie/Anderson:
o There is a qualitative different. Under Carol, its just about purpose
(still use factors to prove purpose). Under Guthrie, they want more
evidence of cool reflection.
o Prosecutor will argue Carol and Defense will argue
Guthrie/Anderson. In Carol jurisdiction, will almost always find
1st Degree murder.
ON EXAM: Use both approaches (purposeful and purposeful +) and argue
the facts and factors to see if there is preconceived design.
ALL Intentional killings that have no premeditation are 2nd Degree
Murder.
B. Second Degree Murder
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All killings committed with malice and without premeditation are murder
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MALICE:
o Intent to kill
 Not premeditated
 Not provoked, no HOP
o Cause grave bodily harm (ex, swing bat to hit A in chest but hit in
head and dies).
o Gross recklessness toward human life (implied malice) (exs,
shooting firearm in crowded room, russian roulette, driving in
extremely dangerous manner).
 Conscious disregard of an unusually high and unjustifiable
risk of death.
STEP 1: RECKLESS: D realized the substantial or unjustifiable risk.
Subjective test. If risk isnt substantial or its justifiable, then isnt even
reckless so doesn’t pass step 1.
STEP 2: GROSS: Social utility vs. Magnitude of the risk. Objective test.
Commonwealth v. Malone: D shoots and kills victim during game of
Russian poker (loading gun with one bullet, spinning chamber, pulling
trigger). D is guilty of murder even if he never intended to kill or seriously
inudre victim. It is sufficient if D knows his conduct involved an
unacceptably high risk of death.
o Here, (1) D should have realized the risk bc that’s why they play
russian poker, for the risk. (2) No social utility bc the game is
stupid and the risk is great bc you could kill someone.
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US v. Fleming: D was drunk and drove and killed a woman. D argues he
was drunk and didn’t realize the risk. Court found him guilty of murder.
(1) He must have known the risk bc of his prior record, and at some point
during while ride would have realized that someone would die. In other
words, he realized the risk and consciously disregarded it.
Conscious disregard is the difference between involntary manslaughter
and murder 2. If you realized the risk and consciously disregarded it=
Murder 2. If should have realized risk= involuntary manslaughter.
o Ex, Mom addicted to meth and gave meth-laced milk to baby and
baby died. Charged with Murder 2 gross reckless. D argues she
didn’t realize meth would pass through her milk. Prosecutor argues
she was on notice of the meth passing through milk bc doctor told
her. Therefore, she had notice and lied = conscious disregard
ON EXAM, argue conscious disregard for drunk driving cases. Courts
have held that drunk people do realize the risk and consciously disregard
it. Argue Notice + life on test = conscious disregard.
Ex, Mom addicted to meth and gave meth-laced milk to baby and baby
died. Charged with Murder 2 gross reckless. D argues she didn’t realize
meth would pass through her milk. Prosecutor argues she was on notice of
the meth passing through milk bc doctor told her. Therefore, she had
notice and lied = conscious disregard.
C. Voluntary Manslaughter
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Intentional killing without malice.
Use VM when there is provocation or EED
Rationale for HOP doctrine: (1) Excuse for the frailties of human natire,
(2) punishment for victim/adulteres (he had it coming).
Requirements:
o 1. Actually in the heat of passion (subjective)
 Classic provocation situations: extreme assault or battery,
mutual combat, D’s illegal arrest, injury or serious abuse of
close relative, sudden discovery of spouse’s adultery.
o 2. Legally adequate provocation (objective)
 (a) Categorical Approach: Extreme assault or battery,
mutual combat, D’s illegal arrest, injury or serious abuse of
close relative, sudden discovery of spouse’s adultery
 Spouse must catch you in the act (doesn’t count if
someone else told you)
 Doesn’t extend to gf/bf or other acts of intimacy.
 Doesn’t extend to provocation by words
 Girouard v. State: W made remarks about D’s
sexual inability. Court held words alone are not
sufficient provocation.
 (b) Reasonable Person (Maher): Whether a reasonable
person in this situation would have been provoked OR
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whether a reasonable person with D’s objective (physical)
characteristics would have been provoked (Camplin)
 This approach was limited to exclude mere words
and adultery. (ASK LEVENSON—so under this
approach, adultery isnt HOP??) Mere words are not
enough for a reasonable person.
 This flexbile standard might result in inconsistent
results bc juries think differently. However, the
advantages are that jurors could relate to D’s human
frailties and these change over time and so do
jurors.
 This is the modern approach.
 The Camplin Approach (physical characteritics) is a
semi-objective approach. Physical characteristics
are objective, such as gender, race, age=
quantifiable and verifiable.
 TEST: To determine whether characteritics are
objective: (1) Is it verifiable? (2) Do jurors have
enough life experience to let in this characteristic?
 Camplin Case: 15 yr old killed person who was
sexually abusing him. Hits him over head with
skillet. Court held that jury should be given
instructions on his sex and age.
(c) EED/Casassa/MPC: Provocation viewed from
perspective of reasonable person in D’s situation as he
believes it to be. Need: (1) extreme emotional disturbance
(subjective), and (2) reasonable explanation for extreme
emotional disturbance (objective). This test is more
subjective than 2 prior approaches. Essentially, this test is
RP with D’s emotional characteristics.
 No act of provocation required (victim doesn’t need
to do anything to provoke)
 Only this approach recognizes that mere words may
be provocation.
 No cooling down limitation.
 Casassa= RP with D;s emotional characteristics
 MPC= RP with D’s emotional characteristics with
EED and reasonable explanation.
 People v. Casassa: D was devasted bc victim
rejected his romantic advances. One time, when she
rejected him, she stabbed her in her throat and then
drowned her. D claimed he acted under EED.
Traditional HOP wouldn’t work here bc no
provocation. Court held test not purely subjective—
need reasonable excuse—none here—must be
something in D’s mental or emotional makeup to
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explain the reaction—reasonable explanation must
exist. Mere personality disorder (hatred, anger,
extreme reaction to embarassment) not sufficient.
ON EXAM, argue EED and then argue no bc just a
personality disorder which is not a reasonable
explanation.
 ds
o 3. Inadequate cooling time
 This element requires provocation so not applied under
MPC analysis.
 If there is adequate cooling time, and you plan your
revenge, then it is murder 1.
 Ex, B was drinking at a party and heard his mom was raped
20 years ago by A. B beat up A and then went back later
and slashed his throat and. Court didn’t allow manslaughter
instructions bc too much time went by—he had cooled
down.
 Rationale: Don’t want to encourage self-vigilanty; only
allow HOP for human fraility (rights when it happens).
 In making cool time decision, court can look to 2 theories:
 1. Rekindling Theory:
 Reminders of the provocation may rekindle D’s
passion, thereby justifying a reaction even after
sunbstantial time has passed.
 2. Long Smoldering Theory:
 Even if considerable time has elapsed since the
provoking act, D may still be entitled to a
manslaughter instruction if the heat of passion has
been building up since the provocation. Ex,
repeated taunting by victim held to constitute long
course of provocating conduct.
 Ex, H and W owned dental practice. She found out
he was cheating on her and H didn’t break it off.
She was driving her SUV and she ran him over,
came around and hit him again. She had adequate
cooling time. However, defense would argue
rekindling (see him again) or long-smoldering (she
just got madder and madder)
 EXAM TIP: If a D takes too much time to respond to an act
of provocation, prosecution can argue that passions have
cooled and D’s reaction was premeditated revenge
constituting first-degree murder.
 What if you don’t kill the person who is provoking you?
 Courts are split—some will allow HOP and some
will not.
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
Since manslaughter is based on human fraility, as
long as there was adequate provocation, some
jurisdictions believe that manslaughter will still
apply even if you kill the wrong person.
D. Involuntary Manslaughter (MPC= Negligent Homicide)
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Unintentional Homicide
Mere Recklessness or Gross Negligence: D acts in gross deviation from
the standard of care that a reasonable person would exercise in the same
situation.
Recklessness: Subjective awareness of the risk of death. OR needs to be
gross negligence (test below).
If the court finds crime to be a terrible accident, then its just ordinary
negligence = No crime.
STEP 1: Negligence: A RP would have realized the risk.
STEP 2: Gross: Magnitude and Risk vs. Social Utility of Conduct
o Magnitude of Risk: (1) Foreseeability of harm to victim, (2) Type
of Danger/Seriousness of harm.
o Social Utility of Conduct: (1) Conduct’s benefit to society, (2)
Costs of avoidance
Dangerous Instrumentality Doctrine: When use dangerous instrumentality
in a negligent manner, it is automatically gross negligence and therefore,
automatically Inv Man. (don’t get to argue social utility). Ex, car is
considered a dangerous instrument.
NO Contributory negligence doctrine in criminal law bc the victim of a
criminal case is all of society and 2 wrongs don’t make a right—we don’t
blame the victim. Therefore, NOT a defense. Ex, D was speeding and
smashed into victim’s car and killed him. Victim was negligent as to
where he parked but D was still guilty of manslaughter.
Walker Case: Daughter is sick and didn’t take her to the hospital bc its
against her religion. Instead, they prayed and she died. Is this
manslaughter or malice? Go through analysis—(1) Mother should have
realized the risk; (2) Benefit is having faith in your religion and Risk os
severe bc daughter could die. Argue both ways—defense will argue
manslaughter and prosecutor will argue murder. Court upheld conviction
of manslaughter.
E. Felony-Murder
 RULE: Any death that occurs during commission of a felony (even if
accidental) is automatically murder.
 Prosecution must prove:
o (1) D committed a felony:
 Traditional categories (BARKRM) are Murder 1 and all
others are murder 2:
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Burglary
Arson
Rape
Kidnapping
Robbery
Mayhem
o (2) During the course of the felony, D or an accomplice caused a
death.
 Courts have interpreted causation expansively—D “takes
victim as he finds him” and is responsible for unforeseeable
deaths, such as victim’s heart attack during a felony.
Shortcut to prove murder—prosecutors need not show D acted with MR
required for murder (intent to kill or cause grievous bodily harm) as long
as they prove that D caused the death during commission of and in
furtherance of a felony.
o Still need to prove causation—only thing you don’t prove is intent.
People v. Stamp: D robbed victim at gunpoint and victim was forced to lie
on the floor during robbery. Shortly after D fled, victim died of heart
attack. Even though there was no evidence that D intended to cause
victim’s death, D was still responsible for murder under the FM doctrine.
Regina v. Serne: D was charged with murder of his son after he set fire to
his house to collect insurance money. Court instructed jury that D was
guilty of murder if he acted with either knowlede that his actions would
kill a person (malice) or an intent to commit a felony (FM).
Rationale: Should not be involved in the felony in the first place.
Something bad happened and people have strong feeling of retribution. If
you up to no good, you should be responsible for all the harm you caused.
In this country, you can get death penalty even if you cant show intent to
kill. FM can lead to death penalty as long as there is participation and you
have gross recklessness.
Criticisms:
o Doesn’t require MR
o It’s a bad luck doctrine—doesn’t actually deter
o Not adopted by MPC
o Statistically, not justifiable bc felonies are not dangerous to life.
o Felonies are no longer punished like homicides like they were back
in the day.
o READ PAGE 136 IN ROADMAP.
o So Why do we have doctrine? Look to Rational above.
LIMITATIONS: Must meet all limitations.
o 1. Has to be an inherently dangerous felony
 Must be inherently dangerous to human life.
16
 People v. Phillips: D, a chiropractor, faced murder charges
after he defrauded parents into paying him for treatment
instead of opting for life-saving surgery. Girl died. Court
did not find FM, rather second degree murder, bc the
underlying felony (grand theft) was not inherently
dangerous to human life.
 (a) Abstract: Felony that can be frequently committed
without creating a risk to human life is not inherently
dangerous. FM would be unavailable—have to prove usual
elements of homicide.
 People v. Satchell: Felony of being ex-felon in
possession of a weapon is not inherently dangerous
bc a felon can possess a weapon without posing a
danger to human life.
 People v. Henderson: Felony of false imprisonment
effected by violence, menace, fraud, or deciet did
not trigger FM. The definition of the crime
stipulates alternative ways to commit the crime
which did not involve force or violence.
 (b) As Committed: Consider the circumstances in which the
felony was committed to determine whether it was
inherently dangerous. This approach is way more likely to
find felonies to be inherently dangerous given fact that
there was a death in the case.
 People v. Stewart: Mother of infant went on crack
binge and didn’t feed infant, who died of
dehydration. Charged with second degree FM. Step
1: the underlying felony was a child abuse statute.
Step 2: Court found neglect was inherently
dangerous under as committed approach. [under
abstract approach, would not be inherently
dangerous].
 Hines v. State: D killed friend accidentally during
hunting trip. Underlying felony was possession of
firearm by convicted felon. Court used as
committed approach and found for FM. Dissent—It
was just an accident.
 ON TEST: Argue Accident—even as committed,
this wasn’t particularly dangerous. But, will not
likely win this argument.
 Prosecutors argue as committed and defense argues
abstract.
 This limitation is satisfied by BARKRM.
o 2. Independent Felony (not merged)
17
 If the underlying felony is an integral part of the homicide
itself, the FM doctrine is not applied. However, if the
underlying felony is merely a step toward causing death, it
merges with the resulting homicide.
 Independent felony when: (1) INDEPENDENT PURPOSE,
(2) Not just a step towards killing someone, (3) Does not
require malice.
 This limitation eliminates FM for the most dangerous
crimes. So FM is everything in between the least dagerous
and most dangerous felonies.
 Ex, D shot his wife and underlying felony was assault with
a deadly weapon. Assault with a deadly weapon is just a
step towards killing someone. No reason to use FM
doctrine if you have to prove intent anyways (it merges).
 People v. Burton: D killed a person in the course of
committing an armed robbery. Court found independent
felony bc the purpose of the robbery was to take money,
not to kill someone so FM is allowed.
 Ex, Burglary with intent to assault (breaking and entering
with intent to commit a felony). Burglary with intent to kill
is not an independent purpose bc to prove felony, will have
to show intent to kill anyway. ??
 In most jurisdictions, felonies or robbery, kidnapping, rape,
arson and lewd conduct with a minor qualify as
independent felonies.
o 3. During course of and in furtherance of a felony
 BARKRM doesn’t automatically pass this limitation, just
first 2.
 (a) Timing:
 Felony starts the minute you start planning and ends
once everyone has been arrested or once you reach
a place of safety.
 Deaths after felony has ended are not covered under
FM. However, killings that tale place during a cofelon’s attempted escape are considered during the
course of the felony.
 (b) During “felony”:
 Unanticipated actions by a co-felon not in
furtherance of the common purpose of the felony
may not be charged under FM doctrine.
 Ex, decide to rob bank with 3 other people and one
felon rapes someone—this is not in futherance.
18
 US v. Heinlein: 3 men rape girl and one guy killed
her. He is responsible for FM but other 2 guys arent
bc it’s a deviation from the plan.
 (c) Who did the killing?:
 1. Agency Theory: (CA)
o Only deaths directly caused by D or co-felon
qualify for prosecution under FM.
o This theory didn’t take into account shield
cases, so created proximate cause theory.
o This is the favored approach, but use
proximate cause theory for human shield
cases.
o State v. Canola: D faced FM charges for
death of co-felon who was shot by store
owner trying to resist their robbery.
Applying agency theory, court held that D
was not guilty bc death did not occur by his
hand or that of one of his co-felons. Death
was the result of an act by the victim.
o Provocative Act Doctrine (CA)
 Also known as implied malice or
vicarious liability.
 ONLY APPLIES IN AGENCY
JURISDICTIONS.
 RULE: Felon bears responsibility for
any killing attributable to the
intentional acts of his or her
associates committed with conscious
disregard for life and likely to result
in death, whether or not the co-felon
directly caused the death.
 Requires that felons acts created an
atmosphere that would provoke lifethretening violance. All D’s would
then bear responsibility for any
killings resulting from this implied
malice.
 Ex, Cofelon walks in and says
someone will die. This co-felon
created the malice by threatening the
killing and that malice lead to a
death and therefore, all felons are
resonsible. Once he created the
atmosphere of malice, the act
occurred.
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o
 2. Proximate Cause
o Felon may be responsible for any death

proximately resulting from the unlawful
activity. It is foreseeable by their actions
that someone will die.
o This approach allows D to argue that he
should not be responsinble when they would
automatically be so under agency theory.
??Therefore, this theory is more eratic.
o Problem: Allows vigilantism bc third party
has nothing to lose bc will look to felon to
blame.
o Shield Cases: D use an innocent victim as a
sheild during a during a felony and law
officers accidentally kill the child. Shield
cases use proximate cause
(d) Who was killed:
 Exception for Co-felons: In most jurisdictions,
even those adopting proximate cause theory, a felon
is not respsonsible for the death of a cofelon.
 Rationale: (1) Killing is justifiable, (2) Co-felons
lives are valued less than those of innocent victims,
(3) Death of co-felon is not in futherance of the
felony, (4) felons assume the risk of dying when
they participate in the felony.
o
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F. Misdemeanor-Manslaughter (Unlawful Act Doctrine)
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RULE: If death occurs during an unlawful act (misdemeanor), it
automatically equal misdemeanor-manslaughter, which is another phrase
for involuntary manslaughter.
Rationale: Legislature has decided that this is per se involuntary
manslaughter—should have known of risk and its way too high of a risk.
Ex, D charged with MM when his 2 rottweiler dogs killed a passing
jogger. D violated a safety ordinance requiring dogs by restrained at all
times. The ordinance satisfied the requirements for MM bc ordinance
enacted to protect heath and safety of community members.
LIMITATIONS:
o 1. Proximate Cause: MM only applies if there is a causal
connection between the violation and the death that occurred.
Nature of the violation must be one that could actually lead to this
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harm. Ex, driving with a license for which you lied about your
height and weight doesn’t lead to death.
o 2. Malum in Se: Violation must be malum in se for MM to apply.
If has a regulatory purpose and is not designed to protect safety of
other, it is malum prohibitum and MM cant be triggered.
o 3. Dangerousness: MM only applies to violations that are
inherently dangerous.
o Not all limitations are imposed in same jurisdiction—diff juris
choses different limits (ex, one juris picks either limit 2 or 3)
HOMICIDE REVIEW ON PAGE 152 IN ROADMAP
G. Causation
1. Transferred Intent
 Ex, want to shoot A but accidentally miss and hit B. You are still
guilty of murder bc of transferred intent. PC exists. As long as D
intent to injure, D need not foresee who the actual victim may be.
 Rationale: Still have intent to kill and killed another person
(definition of murder). All purposes of punishment still apply.
 Additional Harm:
o D intends to harm one victimm but accidentally harms
another more seriously.
o Most jurisdictions say you are responsible for the harm you
cause so get punished for more serious harm.
o Some jurisdictions say you should only get punished for
your intent.
o Ex, intent to kill A but kill president instead. Ex, intent to
kill wife but kill president instead.
 What if shoot A and bullet goes through A and also hits B. D is
guilty of both murders. Some odd jurisdictions might lessen to
manslaughter for second murder.
2. But-For or Actual Cause
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But-For cause is met if D is a link in the chain of causation. Does
not have to be the sole or primary cause, just needs to be a cause.
TEST: But for D’s conduct, would the harmful result have
occurred? If answer is no, there is actual cause.
People v. Acosta: While police were chasing D, 2 helicopters
involved in the pursuit collided and 3 helicopter occupants died.
But for D’s act of fleeoing the police, would the injury have
occurred. Court held NO—if D wasn’t fleeing, the copters
wouldn’t have been in the position to crash.
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
Alternative Test: Since D’s conduct doesn’t have to be the sole and
exclusive factor in victim’s death (just needs to be link in chain),
then as whether D’s conduct played any role in causing the
harmful result.
3. Proximate Cause
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Is the link a sufficiently direct cause that we want to hold D
responsible.
Look to Foreseeability of harm and intervening Acts.
1. Foreseeability of Harm:
o Was the resulting harm foreseeable?
o Do not have to foresee exact manner in which harm will
result, only that there is likely to be such harm. Just
foreseeing ultimate harm is sufficient—don’t need to see
exactly how harm will occur.
o In general, the court gives deference to jury’s determination
of whether harm was foreseeable
o If D engaged in dangerous activity, court more inclined to
find harm foreseeable.
o People v. Arzon: D set fire on 5th floor of a building. A
separate fire broke out on second floor and trapped
firefighters and one died. Court found actual and proximate
cause.
 Actual Cause: D’s fire was a link in the chain of
events that resulted in firefighters death. Had D not
set the fire, firefighters would not have been in
building.
 Proximate Cause: It was foreseeable that firefighters
would respond, exposing them to life threatening
situation. Although second fire led to death, D
should have foreseen the possibility of the harm.
D’s behavior was sufficiently dangerous to impose
criminal responsibility.
o People v. Kibbe: D’s robbed drunk victim and left him with
his clothes half off by the side of a dark road in subfreezing
temperatures. A passing truck struck and killed victim.
 Actual Cause: But for D’s acts, the victim would
not have been in a position to be struck by passing
truck.
 Proximate Cause: Bc it was foreseeable that victim
would die by side of the road, isnt necessary that
exact manner of death be foreseeable. D’s conduct
need not be the sole and exclusive factor in victim’s
death.
o [Socially Useful Conduct Exception] People v. Lambert: D
knew that warehouse conditions were dangerous but could
22
not prove the exact cause of the deadly explosion. Where D
is engaged in socially useful conduct, courts will be more
strict in requiring not only proof that harmful result was
foreseeable, but also proof that D could have foreseen the
manner in which harm occurred. Court dismissed
indictment bc prosecutuon could inly show that D’s knew
they had dangerous conditions. Decision has a whole lot to
do with how much control D had—D had no control bc
don’t know what caused explosion; Policy—if go after
companies like this, wouldn’t have many companies left.
o Always Ask: Do you want to blame D?
 2. Intervening Act: If an intervening act breaks the chain of
causation, it is an independent or superseding cause. But if
intervening act doesn’t break chain of causation, then it is a
dependent intervening act.
o (a) Foreseeability of Interveing Act
o (b) Control and Policy. [look for mutual encouragement in
joint enterprise for control].
TYPES OF INTERVENING ACTS:
o Acts of Nature:
o Acts of nature, such as weather, don’t break chain of causation.
However, unforeseeable freak acts of nature, like earthquakes, may
be sufficient to break chain of causation.
o Acts by Another Person:
o Victim:
 (a) Condition: Victim’s condition does not break chain of
causation bc take victim as they are. An eggshell victim is
always foreseeable. Ex, Car accident with Jehovah’s
witness and die bc don’t get blood transfusion due to
religious beliefs—for policy reasons that don’t want to
punish someone for faith, this does not break chain of
causation. Ex, victim dies from heart attack during crim
act—doesn’t break chain.
 (b) Acts: Approach: Who had control, was it foreseeable,
what are some policy reasons.
 1. Victim’s Voluntary Acts:
o RULE: A victim who voluntarily brings
harm upon herself breaks chain of causation.
o People v. Campbell: D and friend drinking
and friend slept with D and D mad so
suggested friend kill himself and D provided
gun and friend killed himself. Court held
chain broken bc friend voluntarily harmed
himself.
o People v. Kevorkian: Court used Last Act
Approach—chain is broken if D wasn’t in
23
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
last act. This approach is bogus—created by
this court to justify not finding Kevorkian
guilty. Don’t use this approach—use
foreseeability and control and policy. Court
should have said: (1) intervening harm was
foreseeable, but, (2) these victims had more
control and as for policy, don’t want to
punish D bc don’t think purposes of
punishment apply to him.
2. Victim’s Escape Attempts: A victim’s escape
attempt is involuntary and doesn’t break chain of
causation.
o Stephenson v. State: Victim tried to escape
abduction and sexual attacks by taking
poison. Didn’t break chain bc when victim
engages in desperate acts of escape, D’s acts
have deprived victim of her ability to make
independent, autonomous decisions. Here,
she was under constant control and
dominion by D’s and as far as policy, D is
evil and should be punished. What victim
did was foreseeable.
3. Victim’s Attempts to Elude Captor:
o Howard Beach Incident: White youths,
wielding bats, chased 2 black youths whose
car had broken down. Black youths ran onto
highway and car struck and killed them. The
white youths proximately caused their death:
(1) link in chain (actual cause), (2) harm
foreseeable, (3) victim was in control of
attackers and no reason to let D’s off hook
(policy).
o (2) Medical Care:
o (a) Neglect: Ordinary neglect does not break chain of causation.
Ex, D stabs victim and wound is not life-threatening and
incompentent medical care permits infection to develop and victim
dies—chain not broken.
o (b) Intentional Maltreatment: Intentional harm by medical care
may break chain of causation. Ex, D stabs victim, Doctor
intentionally uses wrong medicine and victim dies—the Dr’s act
may break chain.
o (3) Additional Perp:
o (a) Related: If 2 people together stab A and A dies, both are the
cause.
o (b) Unrelated: Ex, A stabs C but before C bleeds to death, B shoots
C. One argument is that both are culpable (both link in chain, harm
24
foreseeable, both had control). Another argument is that first
person attempted the murder and the second person gets the
murder charge.
o (4) Complementary Human Action: Ex, drag racing cases. 2 Approaches:
o (a) Commonwealth v. Root: A and B drag race. B loses control and
is killed trying to pass A’s car. A is not responsible bc the victim
voluntarily created the risk of his own injury—he chose to go into
other lane. Here, they are blaming the victim—no sympathy for
this victim. D isnt the sufficiently direct cause. B had control and
A shouldn’t be responsible for policy reasons.
o (b) State v. McFadden: Same story but B and innocent victim died.
A is responsible bc A directly participated in the series of acts that
led to the deaths. Here, policy is really at play—an innocent victim
died, whereas in Root it was the drag racer who died and someone
here has to pay for this death. Here, A had control and should be
punished as policy. More expansive view of causation.
o ON TEST—if there is an innocent death, argue other driver should
be liable (McFadden). If no innocent death, just death of driver,
argue shouldn’t be responsible (Root).
o Commonwealth v. Atencio: D played Russian roulette with the
victim. Victim pulled trigger and died.
 (1) link in chain (playing the game), (2) harm foreseeable,
(3) intervening act was foreseeable, (4) mutual
encouragement in a joint enterprise = control.
 Mutual encouragment in joint enterprise bc this wasn’t the
victim pulling the trigger, but rather everyone was involved
in pulling trigger—everyone should be punished- no reason
to let them off the hook. They all had control bc mutually
encouraging and as far as policy—there is no reason to
break chain of causation- they need to be punished.
 If before he killed himself he was complaning about being
depressed and hated life, then no longer joint enterprise bc
it was a suicide—he was the only one who had control and
they didn’t encourage suicide and shouldn’t be held
responsible for somene else’s suicide.
o ON EXAM: If multiple D’s, focus on control on D that’s being
sued. If test question asks who should be held responsible, then
shift thoughts to other possible D’s.

Ex: BF charged with Murder 2 after GF jumped out of window of
car while he was driving. He didn’t try to stop her bc he wanted
her to learn a lesson from getting injured but she died. (1) link in
chain, (2) foreseeable, argument for control can go either way—he
could have stopped her, he had no control bc he was driving;
policy-need to prevent people from jumping out of car.
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
ON EXAM: As a policy reason, never want to pin something on
police.
IV. Anticipatory Offenses
A. Attempt


Attempt = AR + MR—But NO result.
How much punishment? In most jurisdictions, attempt carried a lesser
sentence. Rationale: Since D’s acts caused less harm to society than
completion of the substantive crime would have, there is less demand for
retribution.
o Ex, In CA, attempt carries a max sentence of not more than ½ the
max sentence authorized for the completed offense.
o MPC punishes the same as if you completed the crime. Rationale:
Focus is on intent, not success of the crime. D’s punishment should
not depend on good or bad luck. D who commits crime must be
deterred—still a danger to society.

1. Elements

1. MENS REA
o Majority Approach:
 Requires PURPOSE to cause the harm (specific intent)
 Purpose required even if completed crime requires a
lesser degree of MR. Ex, murder can just require gross
recklessness but attempted murder requires purpose.
 Rationale: Want to make certain that they deserve to be
punished.
 On exam, prove purpose by looking at the
circumstances—language of D, his attitude, how much
he knew, etc.
 Ex, Someone wanted to commit suicide so starts
shooting at police so they will shoot back and kill him.
Even though D may know that he will likely kill an
officer, if he doesn’t have purpose to kill, no attempted
murder.
 Ex, D uses barbecue inside house to make dinner. He
knows its extremely likely that he will catch the house
on fire but his purpose is to cook dinner. No attempted
arson.

o MPC Approach: (minority approach)
 5.01(b): If D purposely engages in crime in
circumstances as he believes them to be= KNOWING.
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
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

Therefore, MPC drops the MR for attempt to knowing.
Knowledge of the likely harmful result is sufficient.
Ex, D plants bomb on plane to destroy papers on plane
even though he knows the pilot will be killed. The plan
fails to explode. Bc D believed his conduct would cause
death, it is not controlling that he may have had a
different purpose.
o Can have attempted murder of 2 people even with one bullet as
long as had purpose to hot one or both persons.
o CANT have attempted FM or attempt to commit involuntary
manslaughter bc cant have purpose to commit an accidental
death.
o Most courts do not require that D act with purpose as to
circumstances of a crime that D would not need to know to be
guilty of the complete crime. Ex, to be guilty of statutory rape,
don’t need to know girl is underage—also, don’t need to know
underage to be guilty of attempted statutory rape.
o Smallwood v. State: Charged with intent to murder his rape
victim bc he knew he had HIV and knew he needed to practice
safe sex. The more knew the more easily you can prove
purpose. Court found him not guilty—cant infer intent to kill
just from the fact that he knew he had HIV.
2. ACTUS REAS
o RULE: Attempt is more than mere planning or preparation.
o (1) First Step: D’s first step is in sufficient to establish
attempt—this would be mere preparation.
 Ex, D plans to rob bank so she calls bank to get their
hours.
 However, the first administration of poison may be
sufficient to constitute attempted murder if D has the
purpose to kill.
 Criticism: not a good use of law enforcement and
infringes on personal liberty by allowing govt to
interfere in people’s lives at stages involving innocent
behavior.
o (2) Last Step: Early CL test. D not guilty unless he had done all
he could to commit a crime and external forces prevented him
from causing a harmful result.
 Ex, D pulls trigger but gun jams or bullet misses the
victim
 Ex, D tries to pickpocket and pocket turns out to be
empty—D has taken last step toward completing the
crime.
 Criticism: Puts victim at undue risk. The need to deter
and punish D is apparent before he commits the last act.
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o (3) Dangerous Proximity (Holmes): Many courts use this
approach. Addresses how close D has physically come to
completing the criminal act. Prosecutors will focus on how
much D has done and defense will focus on how much D has
not done—how much is left to be completed. Then, jury
decides whether its dangerous proximity.
 Factors: (1) steps completed, (2) how many steps
needed to complete the act, (3) why harm never
occurred, (4) amount of harm likely to result, (5)
seriousness of prospective harm, (6) appropriateness of
law enforcement interference with D’s acts.
 People v. Rizzo: D drove around looking for a particular
payroll clerk to rob. He was armed and prepared to
commit the robbery. However, police apprehended him
before he could find his victim and the court found acts
were mere preparation.
 Criticism: Court decisions are arbitrary bc approach
gives little guidance of what sufficiently constitutes an
attempt.
o (4) Unequivocality Test (Res Ipsa Loquitor): D’s acts speak for
themselves.
 McQuirter v. State: D was black and followed a white
woman down the street. Using racial sterotypes, the
court found that D’s actions sufficiently demonstrated a
clear intent to attack the woman.
 Ex, D threatened to kill victim as he approached him
with loaded gun. Court found that bc D had not yet
aimed the gun at the victim, his acts were equivocal and
didn’t prove attempt.
 Criticism:
o (5) MPC/Substantial Step Strongly Corroborative of Intent: D
must take a substantial step strongly corroborative of the
actor’s criminal purpose. Focus is on what D has done toward
completing the crime (not what he has left to do). If D’s acts
corroborate the evidence of intent, may be sufficient to prove
attempt. MPC lists acts that per se satisfy AR for attempt—ex,
lying in wait and possessing materials specially designed to
commit the crime. Jury tells you if test is met.
 Test is a mix of dangerous proximity and Res Ipsa. (1)
Substantial step toward commission of the crime =
came from dangerous proximity. (2) Strongly
corroborative of intent = came from Res Ipsa Loquitor.
 United States v. Jackson: D charged with armed
robbery. Planning to rob a bank, D and co-conspirators
drove to bank location, removed license plates, nrought
guns, tools, masks. They were apprehended and court
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
held D’s acts showed a substantial step taken toward
committng the crime and corroborated D’s crim intent
as prove by the testimony of co-conspirator.
Criticism: Can lead to arbitrary decisions and allows
D’s intent to establish both MR and AR.

o MPC vs. CL: MPC attaches liability earlier in the sequence of
events than most CL approaches but mitigates its harshness by
recognizing an abandonment defense.
o The prevailing AR standard is MPC—substantial step strongly
corroborative of intent. ON EXAM, focus on what D has
already done (even if legal), not what remains to be done.
Those acts should be analyzed in the context of any other
evidence that shows D’s purpose in doing those acts. Even a
small step can be a substantial step when combined with other
evidence of intent.

2. Defenses: Abandonment, Impossibility
A. Abandonment
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A D who repents and deserts efforts to commit a crime may try to
raise the defense of abandonment.
RULES:
o CL: NO DEFENSE
o MPC: May have defense if:
 1. Abandon crim effort
 2. Complete and voluntary
 Not voluntary if stop bc: (a) fear getting
caught, (b) postponing for better time or
victim
 3. Complete renunciation
 After prosecution proves D went far enough for an
attempt, Burden shifts to D to prove abandonment
by proving elements.
At CL, abandonment is no defense bc last step doctrine would
preclude this defense—at the last step, its too late to change your
mind.
However, now days, allow defense bc we want to encourage
people to reconsider and give them a way out.
Ex, attempted to rape girl; girl please with him and he let her go/.
Court did not allow abandonment defense bc abandonment was not
voluntary, but rather based on her convincing him and there is no
proof that he wouldn’t do it again; the next victim might not be as
convincing. Basically, need to show D stopped and wont do it
again.
ON EXAM, abandonment only applies if MPC approach is used
for attempt. DO NOT argue abandonment if CL approaches used.
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B. Impossibility
 Arises when D has done everything possible to commit a crime but
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unexpected factual or legal circumstances prevent the crime from
occurring. Therefore, comes up ONLY AFTER LAST ACT (has
met all elements of attempt).
Factual vs. Legal Impossibility:
o Factual Impossibility is no defense
o Legal impossibility is a defense.
o People v. Jaffe: D was charged with receiving stolen
property but it turned out that the property was not stolen.
Bc it was legally impossible for D to commit the crime, the
court reversed the conviction. However, can also argue that
it was factual impossibility and therefore, no defense—the
fact that the property was stolen make it impossible for D
to complete the crime.
o But see, People v. Rojas: Same facts as Jaffe but court
found it to be factual impossibilility.
o People v. Dlugash: D shot victim who was probably
already dead. Court found factual impossibility bc it was
factually impossible to try to kill someone who is already
dead so D could still be charged with attempt. (Could argue
legal impossibility bc its legally impossible to kill someone
who is already dead).
o Ex, it’s a crime to shoot a deer. D gets gun, loads it and
takes a shot and hit the deer. However, the deer was
stuffed. This is attempt bc had purpose and did last step.
 Factual Impossibility: The fact is that D couldn’t
kill the deer bc it was a stuffed deer. No defense.
 Legal Impossibility: Not against the law to shoot a
stuffed deer—defense.
o s
MPC: Impossibility is NOT A DEFENSE if D would have been
guilty of the crime if the circumstances were as D believed them to
be.
o EXCEPTION: No real public danger.
 Ex, Attempting to have sex with a deer. However,
the animal is dead. This is attempt bc has purpose,
has done last act. MPC: Impossibility is not a
defense if D would have been guilty if the
circumstances were as D believed them to be except
when there is no real public danger.
 Ex, don’t like bush, get voodoo doll to poke at so
that Bush dies. Here, there is attempt bc there is
purpose to kill and have done the last act.
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 Factual: Stabbing a doll wont kill someone-
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no defense.
 Legal: Not against the law to stab a voodoo
doll.
 MPC: If the circumstances were as D
believes them to be (can kill someone with
voodoo doll), then impossibility is not
defense and therefore guilty of attempt.
However, its not much of a public danger to
stab a voodoo doll—therefore, may be
inclined to call it impossible under MPC or
at CL would call it legal impossibility.
Typical factual impossibility situations: pickpocket but empty
pocket, shooting a weapon that is defective and incapable of firing,
trying to infect another with a disease but D not infected, shooting
at victims home when victim not present, having sex with a woman
who, unbeknownst to D, is already dead.
United States v. Berrigan: imprisoned Vietnam war resister was
convicted of attempting to send letters contrary to prison
regulations that required consent and knowledge of the warden. D
thought warden didn’t know and he was sneaking them out but
actually the warden knew.
o Court held it was legal impossibility—nothing illegal about
sending letters if the warden knows.
o Factual—factually warden knew what was going on.
United States v. Oviedo: No difference between factual and legal
impossibility—ultimately, looking at act to see if poses a public
danger (MPC approach).
IMPOSSIBLITY vs. MISTAKE:
o Don’t get confused between them.
o Mistake of fact = is a defense
o Factual Impossibility = not a defense
o Mistake of law = not a defense
o Legal impossibility- is a defense.
Impossibility hypos
ON EXAM:
o Step 1: Analyze elements of attempt (apply CL purpose
unless otherwise told)
o Step 2: Argue impossibility
o Step 3: Argue MPC approach
s
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V. Accomplice Liability
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Accomplice liability is NOT a separate crime, it is theory by which you are guilty
of a crime.
Traditionally:
o Principal 1st Degree: Actual perp
o Principal 2nd Degree: Aider and Abettor
o Accessory before fact: Aider and Abettor (helps with plan)
o Accessory after fact: Helps afterwards
Modern Approach: Principal in 1st and 2nd degree and accessory before act are
all guilty of the crime bc they are accomplices.
Rationale: Person who plans a crime may be as culpable or more culpable than
the less sophisticated person who puts plan into action. When crime is the combo
of more than one person’s efforts, each D is contributing to the overall
commission of the crime.
Note: Although charged with same crime as the principal, wont all necessarily get
same punishment—discretion in sentencing.
Exam Tip: When there are 2 or more actors in facts, consider both accomplice
liability and conspiracy. Might be helpful to start analysis with the principal actor
and then analyze all of the remaining actors for accomplice liability.
A. Aider and Abettor

RULE:
o 1. AR: All you need to do is help (act of encouragement)
 Can be either a positive act or an omission when there is a
duty (review).
 Mere words can be enough.
 Mere presence not enough unless presence is offered as a
form of encouragement.
 Wilcox v. Jeffrey: D was journalist for jazz music and
attended a jazz concert by a foreigner. Under England law a
foreigner cant perform in England. Court held D was aiding
and abetting by attending the concert and his positive act of
buying a ticket= encouragement.
 Person is aider and abettor even if the crim result would
have occurred anyway and D’s actions had no actual
impact on the outcome.
 State v. Tally: Group of men set out to kill victim
and D took steps to prevent victim from receiving a
warning of attack. Even though likely that victim
would have been killed even if there had been a
warning, D was an aider and abettor bc he
performed an act of assistence which made it more
likely that the crime would succeed.
 A person can aid and abet a crime even if principal is
unaware of the accomplice’s help.
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Ex, Principal decides to rob store and D cuts the
wire of the stores security system bc D doesn’t like
store owner. Principal doesn’t know D helped but D
is still guilty of aiding and abetting.
 Aider and abettor does not need to be the cause of the
crime—can be one of many causes bc culpability is based
on fact that you have bad crim intent—so once you have
bad intent, the slightest action gives reason to punish you.
o 2. MR: Knowingly help (an act that helps) with Purpose for crime
to succeed.
 Nexus = purpose for crime to succeed
 Crime = any reasonably foreseeable crime. People v.
Luparello: D asked friends to help him obtain info
regarding his former lover at any cost. The friends ended
up killing a person in an effort to obtain the info. D was
convicted of murder bc the killing was reasonably
foreseeable given D’s request
 Don’t need purpose for the harm to occur, just need
purpose to engage in the activity.
 Court is more willing to infer purpose if you knowingly
helped for more serious crimes. Ex, you set off a nuclear
device—it’s a serious crime, you knowingly helped so it
must have been D’s purpose for the crime to succeed. ON
EXAM, argue as a policy reason that they will find purpose
through knowingly helping if it’s a really serious crime.
 If the principal does not need to know something, then the
perp doesn’t need to know it as an aider and abettor. Ex,
Help friend get a date with a girl and turns out she is
underage—friend doesn’t need to know she is underage for
statutory rape so you don’t need to know as an aider and
abettor.
 Involuntary manslaughter is the crime most frequently used
to test whether a student understands the MR required for
accomplice liability for negligent crimes.
 It is impossible to intend a negligent result bc if D
intended the harm, the result would be purposeful,
not negligent. Therefore, accomplice liability for
negligent crimes requires that D had purpose to
assist principal and was negligent regarding the
results.

Excused Principal: Does not matter if principal is never apprehended,
never convicted, or acquitted, you can still be held as aider and abettor. (If
acquitted bc jury found not enough evidence, you still need to be tried bc
we allow for inconsistent verdicts—different juries conclude different
things.)
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Mere presence is not enough—need prior agreement.
Hicks v. United States: D was accused of murder for encouraging his
friend to kill the victim. The 3 men had a confrontation, friend pointed gun
at victim and D told victim to take his hat off and die like a man. Friend
shot victim and then friend and D rode off together. D testified that he left
with the friend out of fear for his life and separated from the friend as soon
as he could.
o Mere presence is generally insufficient to constitute aiding and
abetting. However, if D agrees in advance to be present in order to
provide moral support or assistance to the principal, accomplice
liability is established.
o HYPOS IN BOOK:
 (a) D hears friend has set out to kill his enemy (the victim)
and goes along to enjoy the spectacle: Not guilty of aiding
and abetting bc his intention was to enjoy, not encourage.
Mere presence is generally insufficient.
 (b) Same situation except while watching D shouts words
of encouragement such as Go get him, Attaboy. D is guilty
of aiding and abetting if he shouts with purpose of
encouraging. (unlike Hicks, words of encouragement are
directed at perp, not the victim).
 (c) Same situation except D resolves to make certain friend
succeeds by helping him if necessary: D has MR to help
but he has not done any act to assist him—therefore, not
guilty of aiding and abetting unless communicates intention
to friend to help.
 (d) Same situation, except D tells friend on the way that he
will help him if it seems necessary: Guilty of aiding and
abetting bc he has the purpose to help as demonstrated by
his prior agreement to be present.
o d
State v. Gladstone: Gladstone charged with aiding and abetting unlawful
sale of MJ. Police informant approached D to buy some MJ and D said he
didn’t have any but gave him Kents name, address, and drew him a map.
Court held not guilty—even though D knew that Kent would probably sell
MJ to the informant, the court found the evidence insufficient to show he
had a purpose for the crime to succeed.
o Court said the nexus was missing. In other words, no purpose for
crime to succeed.
o D knowingly helped, but had no purpose for crime to succeed.
People v. Luparello: D asked friends to help him obtain info regarding his
former lover at any cost. The friends ended up killing a person in an effort
to obtain the info. D was convicted of murder bc the killing was
reasonably foreseeable given D’s request.
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B. Conspiracy
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Elements:
o AR: Agreement
o MR: Knowingly agree and purpose for crime to succeed
o Overt Act: Any step. Only some juris require this.
RULE: A conspiracy is an agreement between 2 or more people to
commit a crime.
Conspiracy is a SEPARATE CRIME.
Consequences of Conspiracy: Guilty of conspiracy. If crime is complete
than also guilty of the substantive crime (ex, robbing bank); Guilty of
every crime done in furtherance of the conspiracy.
o Co-conspirator liability is automatic (see discussion below)
Partly like Attempt bc don’t have to complete the crime (both are in
choate crimes).
o Not like attempt bc doesn’t merge—if you attempt a crime and
succeed only guilty of one crime; but if you conspire to rob bank
and you do rob a bank, you are guilty of 2 crimes (conspiracy and
robbery).
o Conspiracy can occur in the beginning stages (unlike attempt)
o Partly like accomplice liability bc when you join a conspiracy, you
are vicariously responsible for acts of co-c. Not like accomplice
liability bc you don’t have to do anything to help the crime—just
need to help with the conspiracy.
*Can aiders and abettors always be convicted of conspiracy? NO—bc
some aiders and abettors are helping without principal knowing so there is
a lack of a agreement.
Rationale: Stop crime at an earlier stage, crime more likely to occur bc
the number of people involved, take down criminal organizations, need
added deterrence.
Duration: Conspiracy remains in effect until it has been abandoned or its
objectives have been achieved,
ON EXAM: If person didn’t directly commit bank robbery, argue aider
and abettor, conspiracy, AND pinkerton liability= Its an alternatives
approach for holding someone responsible and its awesome for
prosecutors bc its automatic liability—co-c doesn’t have to know about it.
CONSPIRACY HANDOUT (not in supplement—its own handout).
A. Actus Reas
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AR for conspiracy = agreement.
Need not be express; implied agreements ok.
Shown by concerted action.
o Ex, Alvarez (columbian guy loading dishwashers who didn’t
speak english) just showed up and nodded his head and this
was found to be sufficient for AR.
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o Study Tip: Agreement may be demonstrated by words, actions,
similar motives, gestures—like a nod, wink, handshake.
All co-c’s need not agree at the same time or know each other.
Defense will argue D was just there by chance.
Prosecutor will show concerted action by being there.
Qualifying Parties: Who qualifies as a co-c?
o 1. Gerbardi Rule: A person that a particular law is intended to
protect cant be a party to a conspiracy to violate that law.
 Gebardi v. US: Man and women were charged with
conspiring to violate the Mann Act bc they crossed state
lines to have sex. The Act was designed to protect
women and therefore, a woman who consents to cross
state lines for sex cant be charged with conspiring to
violate the Act.
 Ex, child labor laws intended to protect children. If
child agrees to work in violation, child cant be guilty of
conspiracy to violate the law.
o 2. Wharton Rule: If you have a crime which by definition
needs 2 people to commit, court will not add on conspiracy
UNLESS legislature says so otherwise.
 Ex, dueling, bigamy, adultery, incest, gambling, buying
and selling contraband—if only 2 peoole are involved,
then cant be charged with conspiracy + substantive
crime—just gulty of substantive crime.
 Caution: If more than 2 people are involved, Wharton
rule doesn’t apply.
 MPC doesn’t recognize Wharton.
o 3. Bilateral v. Unilateral:
 Bilateral Approach: This is the traditional/federal
approach. If one of the 2 persons charged with a
conspiracy can be prosecuted for the crime, there is no
conspiracy.
 Unilateral Approach: This is the MPC approach. Coc, if believed was conspiring with another to commit a
crime, is still guilty of conspiracy regardless of whether
the other person can be convicted. D still has the
purpose (hooked on MR). This is the minority
approach.
 Garcia v. State: D asks a person she believes to be a hit
man to kill her husband. Unbeknownst to D, the hit man
is an undercover police officer. Under bilateral rule, D
could not be charged with conspiracy. However, under
unilateral rule, a conspiracy charge would be
appropriate.
 Examples of not being prosecuted: Diplomatic
immunity, undercover cop.
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B. Mens Rea
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MR: (1) Knowingly agree and (2) Purpose for crime to succeed.
Ex of purpose: A asks friend B to help burn down school and B thinks
A is joking so says sure—no conspiracy bc B did not have purpose to
commit crime.
People v. Lauria: D ran a phone answering service used by prostitutes.
D knew that prostitutes used the service bc he had sex with one of
them. Court held that knowledge alone was insufficient to establish
MR. Prosecutors need t prove that D had a stake in the venture or
otherwise had purpose to facilitate prostitution.
Prove Purpose By:
o 1. Direct Evidence (ex, pimp, bank robber)
o 2. Circumstantial Evidence (infer purpose from knowledge):
 A. Stake in the venture (ex, grossly inflated prices)
 B. No legitimate use of goods other than to commit
crime
 C. Volume of buisness for illegal activity (is it
incidental to the buisness or parcel of business—ex,
gave Dr 300x’s more drugs).
Knowledge sufficient for more serious crimes. In some jurisdictions,
knowledge is enough for MR when the crime involved is a serious one
and the substances themselves being provided are dangerous.
o ON EXAM: Only discuss this situation is she says they want to
lessen the MR for the crime.
Direct Sales v. US: Wholesaler of drugs sold dangerous drugs in large
quantities to doctor who supplied them to addicts. The wholesaler’s
knowledge that the drugs would be resold illegally was sufficient to
prove conspiracy.
US v. Falcone: D provided large quantities of sugar and yeast that
were used for moonshining. Given the innocuous nature of substances
like sugar and yeast as well as the less serious nature of the crime of
moonshining, knowledge was held insufficient.
ON EXAM: Prosecutor will argue all circumstances to show purpose.
Defense will argue dragnet—concern that dragging all people in who
know about the criminal activity—need to draw line somewhere.
C. Overt Act
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RULE: Need to show that conspiracy is getting off the ground.
Anything counts, doesn’t have to be illegal, only has to be done by one
co-c.
Just need ONE overt act.
o Prosecutors love overt act bc they load up indictments with
overt acts and juries take these in when they decide outcome.
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Co-c doesn’t need to know he is doing the overt act.
Not all jurisdictions require overt act. If a statute doesn’t talk about an
overt act, should assume its NOT a requirement.
ON EXAM: Talk about over act but say not every statute requires this
element.
D. Pinkerton Liability (conspiracy as form of accomplice liability)
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RULE: Co-c is responsible for all the crimes of that their co-c made in
furtherance of the conspiracy, even if conspirator is unaware that these
acts are being committed.
o Doctrine of AUTOMATIC liability.
Rejected by MPC bc they are hung up on culpability.
*Co-c liability is broader than accomplice liability bc its applies even
if the co-c is unaware that the crime is being committed or participates
in the crime.
NOT on hook for substantive crimes that occurred before joined
conspiracy, BUT can be used to show the conspiracy (overt acts).
Pinkerton v. US: D was charged with conspiring with his brother,
Walter, to commit tax violations by not reporting income they made
from manufacturing and selling whiskey. D was also charged with
substantive tax counts relating to conspiracy, even though he was in
prison when his brother committed these offenses. Bc tax offenses
were during the court of and in furtherance of the conspiracy, D was
liable for the substantive criminal acts of his brother, even though he
couldn’t be charged as an aider and abettor.
In Furtherance of the Conspiracy:
o Objective Standard= Must be reasonably foreseeable. A
reasonable person in that situation would have foreseen that
this crime would occur.
STUDY TIP: When a fact pattern includes 2 individuals participating
in crim activity, should analyze problem for both accomplice liability
and possible conspirator liability.
E. Scope of the Agreement- Single or Multiple Conspiracies
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Whether there is one or multiple conspiracies is crucial bc members of
same conspiracy are liable for each other’s co-c acts.
Wheel v. Chain Conspiracies:
o Wheel Conspiracy: All of the conspirators are tied together
through the same middleman or “hub.” Although individual
conspirators don’t know each other, they are all connected to
same conspiracy bc they are operating through same
middleman.
 If separate spokes of this wheel have a vested interest
in the success of one another’s illegal conduct
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(common interest), then there is a single wheel and
each member is responsible for the crimes of every
other member.
 One way to show common interest tying spkes
together is to prove that individual conspirators
relied on the success of each other in succeeding
at their plan. Ex, if individual borrowers used
part of the proceeds obtained by the others’
loand as the down payment for their loans=
common venture.
 However, if the only connection is that they know same
middleman, then there are multiple small conspiracies
and not liable for each other’s acts.
 Ex, illegal abortionist paid 17 people to refer pregnant
women to him. D was one of the persons hired to make
referrals. Court found one conspiracy with the
abortionist hub bc D was tied to the other spokes bc
they all shared a common interest in keeping abortionist
in business (so they would still get paid).
 Ex, Spokes are not connected whne several thieves sell
their stolen property to same person, but they are not all
in the same conspiracy—each thief has his own
conspiracy with the buyer.
o Chain Conspiracy: Conspirators participate in a single
conspiracy by performing different roles along a single
distribution line.
 Classic example is sale of narcotics. Manufacturer,
middleman, and distributor are all on the chain of one
conspiracy to sell drugs. They know that there must be
someone at the various stages to ensure that the scheme
works.
Kotteakos v. US: Limit on Pinkerton liability. Holding—For the
members of a wheel conspiracy to be responsible for each other’s acts,
there must be a rim enclosing the indivodual spokes involved in a
crime through the same middleman.
o Here, 32 D’s used same loan broker to obtain false loans. No
connection between D’s other than using same broker. State
argued one conspiracy and charged them with substantive
crimes of one another. Court held that D’s were involved in
smaller conspiracies. To create a wheel conspiracy, individual
spokes acting with same hub must be tied together by common
interests in a single venture.
US v. Bruno: This case involves a chain conspiracy. 88 people were
charged in one conspiracy to import, sell, possess narcotics. Court
found one conspiracy bc each D knew he was working along a chain
of people engaged in a scheme to distribute drugs. Case also had
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aspects of wheel conspiracy bc multiple retailers dealt with individual
middlemen but court failed to analyze this. Holding: This is one
conspiracy bc they are all dependent on each other—knew they were a
necessary link in the scheme of distribution.
US v. Borelli: Many conspiracies have elements of both wheel and
chain conspiracies. Importer at top who has more than one distributor.
Those distributors have mutiple retailers. At this level, they are
actually competitors—partly like chain and partly like wheel.
o Create link among competitors—need all competitors in
business bc would have no buisness if importer not in business.
All have stake in importer being in buisness and importer can
only be in business if have several distributors.
o Procesutor would argue all had stake in every one else’s
venture bc wanted to keep importer in business. Defense
would argue they knew about each other but didn’t have
stake—they would get drugs regardless of whether the importer
was in business.
o At most, courts will find conspiracy for each single link, not
for whole distribution.
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F. Duration of Conspiracy/Defenses
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Conspiracy starts at moment of agreement and ends either when
successful at conspiracy or everyone is arrested.
Under CL, no way to get out of a conspiracy—you are in for the
duration of it.
Impossibility:
o Conspiracy doesn’t end if doing the crime is impossible.
o Ex, still on the hook if have conspiracy to sell drugs and
unbeknownst to conspirator, some co=c’s have been arrested so
its impossible to accomplish aims.
Abandonment:
o At CL, no abandonment doctrine recognized.
o MPC (modern approach): Allows abandonment but very hard.
Must tell all other co-c’s that you are abandoning OR have to
go to cops to tell them abandoning conspiracy.
o If show abandonment, cuts of Pinkerton Liability. However,
you are still guilty of the conspiracy. Therefore, abandonment
just gets you off the hook for co-c liability but not for
conspiracy crime itself.
Renunciation:
o MPC: Must stop (thwart success of) conspiracy all together if
want to cut off pinkerton liability and get out of conspiracy.
o If D actually thwarts the criminal acts of the conspiracy, he can
avoid liability for even the initial conspiracy he joined.
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o What if conspiracy has already accmplished some crimes? Still
on hook for these.
o Therefore, renunciation ONLY WORKS if conspiracy hasn’t
committed a crime yet.
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EXAM TIP:
1. Elements of the Crime
o (a) Actus Reus: Are there 2 or more eligible persons agreeing
to commit a crime?
 1. Express or Implied Agreement. Is there an express
agreement or concerted action demonstrating an
implied agreement.
 2. Eligible Parties. Sometimes parties are ineligible for
conspiracy charges.
 Gebardi Rule. Is the potential D a person the
substantive law was designed to protect?
 Wharton Rule. Does the crime necessarily
involve only 2 people and are there only 2
people involved?
 Bilateral or Unilateral Jurisdiction. In a
bilateral juris, are the defendant’s co-c’s not
chargeable with the conspiracy?
o (b) Mens Rea. Does the D join the conspiracy with intent to
commit a particular crime?
 1. Knowledge vs. Purpose. In most jurisdictions, the
MR for conspiracy is [urpose, not mere knowledge.
Purpose can be inferred from knowledge when D:
 has stake in venture, provides goods or services
that serve no legitimate use, commits grossly
disproportionate amount of her business to the
illegal endeavor.
o (c) Overt Act. At CL, no overt act required. Now, most states
require it.
 1. Any Step. Did any one of the conspirators take any
step toward effectuating the conspiracy?
2. Co-Conspirator Liability. A conspirator is guilty of both
conspiracy and all acts of her co-c’s in furtherance of the conspiracy.
o (a) In furtherance. Were the crime of the co-c’s reasonably
foreseeable?
o (b) Scope of Conspiracy. How far does D’s co-s liability
extend? Is this a chain or wheel conspiracy? Is there a rim for
the wheel of conspiracy?
3. Abandonment or Renunciation. At CL, withdrawal from
conspiracy only limits ongoing co-c liability. Under MPC, withdrawal
can also provide a defense to the general conspiracy charge, if D
successfully thwarts the conspiracy’s crim act.
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VI. Defenses
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The number 1 defense is that the prosecution failed to prove the prima facie case
(didn’t prove an element). These are the defenses discussed earlier that relate
directly to challenges to specific elements of a crime:
o Involuntary acts
o Mistake of Fact
o Mistake of Law
o Impossibility
o Abandonment/Withdrawal
If prosecution has proved the elements, use Affirmative Defenses.
2 Main types—Justifications and Excuses.
Justification: I did the right thing given the circumstances and therefore,
purposes of punishment don’t apply—self-defense, necessity, defense of others
Excuses: Didn’t do the right thing but will give you an excuse—insanity, duress,
intoxication.
A. Justifications

All justification defenses have the same internal structure:
o (a) Triggering conditio that requires D to act (ex, an attack triggers
s-d.
o (b) Necessity element that gives D no choice but to act
o (c) Proportionality requirement that places limits on how D may
respond.

1. Self-Defense

1. Fear of death or GBH
o (a) Fear must be Honest and Reasonable
 Honest Fear: Subjective standard. Ex, A enters B’s
office with gun behind back. B doesn’t believe A
has a gun but takes opportunity to shoot A who has
been attempting to fire him from his job. Bc B
didn’t honestly fear A would attack him, B cant
claim s-d.
 Reasonable Fear: Reasonable person in D’s
situation. Need reasonable fear of unlawful force. It
is reasonable when society agrees with D. Not
strictly objective—jury must determine
reasonableness of D’s acts by evaluating the
circumstances facing D. Factors:
 1. Physical movements and attributes
 2. Relevant knowledge of attacker
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o
o
o
o
o
o
 3. D’s prior experiences
 Reasonableness standard may all race to be used as
a factor in evauting a threat if the ordinary person in
society would also consider it as a factor. In Goetz,
for example, D claimed he reasonably feared the
youths bc they were. Some have argued that even if
race fear is typical it should not be considered
reasonable and therefore courts should exclude race
from evidence at trial.
(b) MPC: D’s subjective belief that force is necessary is
sufficient for s-d unless D is charged with a crime requiring
only recklessness or negligence. This is a subjective
standard.
Death or Serious Bodily Harm—CL—strict standard.
(c) Imperfect Self-Defense: Honest and Unreasonable.
Therefore, would bring murder down to voluntary
manslaughter. Imperfect s-d is used when evidence fails to
deminstrate one (not just reasonable requirement) of the
elements—could lead to mitigationof murder charges.
(d) Battered spouse syndrome: Recently courts have been
willing to accept evidence of sybdrime to decide whether a
reasonable person in spouse’s situation would have
believed she was in imminent danger of death or serious
injury. Evidence of syndrome is presented by expert.
 State v. Kelly: Wife killed H with pair of scissors
and unsuccessfully sought to offer evidence of
battered wife syndrome to supper her s-d claim.
Evidence of this syndrome could have helped jury
decide whether W honestly and reasonably feared
for her life.
People v. Goetz: D charged with shooting 4 black youths in
subway he claimed were trying to assault him on a NY
subway. D claimed he acted in s-d but no youths displayed
weapons and when he shot one youth, he was just sitting on
a bench. D claimed his fear was based on race, mannerism,
and his past history of having been mugged.
 Court held that s-d instruction requires an
objectively reasonable belief that force is necessay
in D’s situation and that this standard is semiobjective. Focus must be on a reasonable person in
D’s situation.
 This court expressly rejected MPC subjective
standard.
EXAM TIP: Prosecutors try to apply the most objective
standard of reasonableness. D wants to specify and
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individualize the reasonable person to fit D’s attributes and
experiences.
2. Threat must be Imminent
o Rationale: Killing is only justified when D has no other
alternative than to use force against another—if threat isnt
imminent, there are usually alternatives available.
o 1. Objective Standard (CL)
 Imminence means right here and right now.
 State v. Norman: W killed H while he was asleep.
She suffered from battered womans syndrome but
state didn’t allow s-d instruction bc threat was not
imminent—H was asleep.
 State v. Shroeder: Young cellmat kills older
cellmate after older one threatens to make him a
punk out of him by morning. Court found no
evidence of imminent threat and therefore, not
entitled to s-d.
o 2. Semi-Objective Standard—MPC
 Reasonable Person in D’s situation.
 LOOK AT TUTORIAL.
o Battered Women Cases: Bc of the pattern of violance,
battered spouse may believe a threat is imminent, even
though abuser is making no overt threat at moment of
killing. Some courts hold to the strict rule that batterer mst
pose an objectively immiediate threat before force can be
used (Norman). Other courts allow jury to view imminency
through subjective eyes—given D’s situation whether it
was reasonable to believe there was an immediate threat of
harm (MPC). [Discussion of bws goes under reasonable
requirement and imminency requirement.]
o
3. No excessive force
o Force used in s-d must be proportional to the threat facing
D.
o Therefore, deadly force may only be used when D faces the
threat of deadly force or serious bodily injury.
4. No other choice
5. Duty to retreat
o RULE: Duty to retreat before use lethal force [if arent
going to use lethal force, no duty to retreat].
o Only some jurisdicitions follow duty to retreat rule.
o Even when there is a duty to retreat, D need only do so
when he knows he can reach complete safety by retreating.
If D cant safely retreat, there is no duty to do so.
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
o Castle Exception: No duty to retreat if attacked in your
own home—bc no other place you can escape to and your
home is your castle.
 Note: Some juris require D to retreat if attacker is
another lawful occupant. Jurisdictions are split on
this.
o Not sure when duty arises bc standard does not say when so
its free to be argued and the jury decides. However, we
know that duty arises only when force is used. Therefore, if
A just hears B is walking over to stab him, A has no duty to
avoid the confrontation.
6. Defendant was not the initial aggressor.
o Cant assert s-d if D was initial aggressor bc only justified in
situations where D was forced to defend himself.
o Initial aggressor vs. Instigator: Sometimes hard to
determine who was initial aggressor. A person may be an
instigator without being aggressor. The initial aggressor is
the first person to escalate a confrontation by use or
threatened use of force (mere words not enough). A person
is not an aggressor if his conduct is lawful.
 EXAM TIP: Prosecutors will argue initial aggressor
and Defense will argue instigator.
 Ex, D hears that rival gang members will be
meeting a the park. Knowing that his presence may
provoke violence, D goes to park. Gang threatens D
with deadly force and He responds with force.
Although D instigated it, he was not initial
aggressor.
o US v. Peterson: D saw victim trying to remove winshield
wipers from D’s cars. D protested and went back in house
to get gun. Victim was about to leave when D threatened to
shoot and then victim grabbed weapon and headed toward
D. When victim wouldn’t stop, D shot him. Court held D
was not entitled to assert s-d bc he had provoked the threat
of deadly force.
d
2. Defense of Others
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2 Approaches:
o 1. You stood in the shoes of person you are defending and
they use s-d, then so can you.
o 2. Modern movement is the reasonable person standard—
even if not correct that you are protecting the victim, its ok.
Argue both approaches. Modern approach gives you more leeway.
EXAM TIP: In determining the defense of another, first analyze
whether the person being defended would have been entitled to use
45
s-d, then decide whether the defense of another is justified under
the 2 approaches.
3. Protection of Property
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RULE: Only time can use lethal force is to protect life, not
property.
Rationale: Human life is more valuable than property.
People v. Ceballos: D set up a spring gun in his garage to protect
his property. 2 unarmed youths broke into garage and gun shot one
in the face. D was charged with assault with deadly weapon. Court
denied D’s of defense of property and person. Bc D was not
present at time of break-in, he could not claim s-d. Cant use deadly
force to protect property.
Side Note: Mechanical devices can be used to protect property if
they arent deadly force.
4. Law Enforcement
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Law enforcement officers are justified in using force to apprehend
criminal suspects but there are limitations on the use of force.
Apprehending Misdeameants= Only non-deadly force.
Apprehending Felons= Deadly force cant be used to prevent
escape unless officer reasonably believes that suspect poses a
significant threat of death or serious physical injury to the officer
or others.
Tennessee v. Garner: Police responded to a residential burglary.
Saw a young man fleeing unarmed from house and he didn’t stop.
Officer shot and killed him. Court held that use of force not
justified bc suspect was unarmed.
EXAM TIP: 2 types of evidence tend to justify use of deadly force
against fleeing felon: (1) felon is armed, (2) felon just committed a
crime involving violence.
5. Necessity
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LISTEN TO FIRST 40 MINUTES OF CLASS (3/26)
Choice of Lesser evils is permitted as a defense bc given the
circumstances you made the right choice.
Self-defense is a form of necessity bc D is allowed to commit a
wrongful act in order to avoid a greater wrong (death or injury).
Necessity, however, is a broader justification which applies to any
situation where D faces 2 evils and chooses the better alternative.
No economic necessity defense (ex, Katrina)
1. Choice of Evils
o Choice is ordinarily between immediate physical harm and
committing a crime.
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o People v. Unger: Inmate faced an imminent brutal attack
unless he escapes and the inmate chooses escape.
2. No apparent lawful alternative
o Necessity is a defense of last resort—if there is a lawful
alternative, D must take it.
o Ex, D’s wife is very ill. Rather than taking her to
emergency room, he breaks into local pharmacy for drugs.
Bc D had a lawful alternatives, necessity doesn’t apply.
3. Choose lesser harm
o Objective standard—Did D, from society’s standpoint, pick
the lesser evil?
 MPC: Semi-objective. Just needs to be reasonable
in D’s situation.
o Loss of life is greater evil than loss of property. In some
jurisdictions, loss of more lives is a greater evil than loss of
fewer lives. NOTE: Many courts refuse to allow defense of
necessity in homicide cases.
o CL- doesn’t allow for homicide.
4. Threat must be imminent
o Ex, While hiking D hears on the radio that a storm will hit.
He has time to come down the mountain but chooses
instead to break into a cabin. D did not face an immediate
threat.
o CL- here and now
o More relaxed under modern approach.
5. Didn’t bring choice upon yourself
o D cant create a necessity and then use that necessity as an
excuse to violate the law.
o Ex, D negligently starts a fire and only way to stop fire
from burning down neighborhood is to divert fire into
neighbors vacant house. D is charged with arson—cant get
defense of necessity bc started the fire.
6. No contrary legislation
o If there has already been a legislative judgement that a
particular necessity does not outweigh society’s support for
a law, then D may not claim necessity for violating that
law.
o Civil Disobedience Cases: D’s in civil disobedience cases
often claim that violating the law is justified by an interest
in preventing a greater harm. However, necessity defense
doesn’t usually work in these cases bc society has already
determined that D’s assessment of the 2 evils is incorrect.
 Direct civil disobedience: Protesting a law by
breaking that law or preventing its execution. Ex, to
protest draft, D burns his draft card—although D
claims he is trying to stop the greater evil, Congress
47
has already made the legislative judgment that there
should be a draft.
 Ex, in needle exchange programs, no
necessity defense is allowed bc legislature
has specifically addresses that AIDS/drug
problm and decided to make needle
exchange illegal.
 Ex, medicinal MJ gets no necessity defense
bc legislature already decided against the
law.
 Indirect civil disobedience: Violating a law or
interfering with govt policy that is not itself the
object of protest.
 US v. Schoon: To protest US involvement in
El Salvador D obstructs the activities of the
IRS. Necessity is not a defense to indirect
civil disobedience bc there are lawful
alternatives for changing the law. Until
legislative policy changes, the policy
disctates against D’s choice of evils.
o Prison Escape Cases: Necessity is recognized as a defense
to prison escape but SC has added an additional
requirement. All requirements + SURRENDER
immediately upon reaching a place of safety.
o People v. Unger: D was threatened by other inmates with
rape and death. D didn’t seek help of prison authorities bc
he feared retailiation so instead he escaped. Authorities
apprehended him 2 days later. Court held don’t need to
prove surrender but later SC ruled contrary to this case,
holding need to prove surrender.
o Homicide Cases: Majority of courts don’t recognize
necessity in intentional homicide cases. In jurisdictions
where the defense is allowed for homicide, a lesser number
of lives may be sacrificed to save a greater number. If kill
one life to save one life, necessity doesn’t apply in any juris
bc we arent going to play god.
 Regina v. Dudley & Stephens: 4 shipmates were
adrift on a lifeboat. In order to save themselves, 3
men killed and ate one of the sicklier shipmates.
Although 1 life sacrificed for 3, court didn’t allow
necessity bc each of saved shipmates chose his life
over sacrificed victim. (majority jurisdiction)
 Ex, D realizes levy will break. In order to save
whole town, he breaks the dike in a different place
knowing that it will flood one farmer’s home and
kill several people. Bc he sacrificed a fewer number
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of lives to save more, D can assert a necessity
defense. (minority jurisdiction).
o EXAM TIP: If D is forced by forces of nature to commit a
criminal act, necessity NOT duress is proper defense bc
only another human being can cause duress—people or
natural forces can generate necessity.
o HANDOUT NOT IN SUPPLEMENT.

B. Excuses
1. Duress
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If D is compelled by another person’s use of force or threat of
force to commit a crime, D may claim the defense of duress.
Ex, A threatens to shoot B if B doesn’t burn C’s car. If B burns C’s
car, B has a defense to arson bc he acted under duress.
Duress vs. Necessity:
o Necessity justifies a D’s actions bc the D made the right
choice given the choice of evils facing him.
o Duress excuses a D’s behavior bc the threats by another
person deprived D of a fair opportunity to exercise free
will. Duress applies even if D didn’t choose the lesser evil.
1. Threat of “present, imminent and pending harm”
o CL: Strict imminence requirement. Here and Now (ex, Im
coming for you is not enough (toscano case)).
o MPC: No separate imminence requirement. Imminence of
harm is one fact in determining how serious the harm was
and whether a person of “reasonable firmness” would
resist.
 “threat of unlawful force which a person of
reasonable firmness would be unable to resist.” The
more imminent it is, the more you are unable to
resist. Flexible Approach.
o US v. Fleming: Army officer court martialed for
collaborating with the enemy. D claimed that the enemy
threatened to send him on a death march if he didn’t
collaborate. Bc it was not clear when he would have to start
the march or that the march would lead to death, D was not
entitled assert duress defense (CL).
o US v. Contento-Pachon: Drug dealers threatened a
Colombian taxi driver and his family if he did not smuggle
cocaine. The court relaxed the imminence requirement and
held D could claim duress bc he had no reasonable avenue
of escape. (similar to MPC).
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What about soldiers who commit atrocity’s and then
claim duress (ex, Nazi). Duress NOT a defense.
2. To D or a relative/significant others
o CL: Threats must be to D or close relatives
o MPC: Threats can be to any person (significant others)
o Ex, D receives word that his neighbor will be injured unless
D participates in a scheme to defraud the telephone
company. CL- D would have no duress defense bc threat
wasn’t against him or close family member. MPC- D could
have a duress defense.
3. Type of Harm
o CL: Threat of death or GBH
o MPC: Unlawful force. Sliding Standard—the greater the
crime, the more serious a threat must be to excuse D’s
conduct. For lesser crimes the MPC provides an excuse,
even if D did not face death or GBH.
o Economic duress doesn’t work under either approach.
o State v. Toscano: Chiropracor received calls threatening
retaliation against him and his wife if he didn’t help in a
fraudulent scheme against insurance company. “Just moved
into place with dark entrance and you and your wife will
jump at shadows.” Under CL, the threat may not be specific
enough bc didn’t say D was faced with death or GBH.
However, under MPC, even general threats suffice,
especially if D’s crime is a less serious one.
4. Such a fear that the ordinary person would yield
o CL: Threat to D must induce such a fear that ordinary man
would yield. Objective standard.
o MPC: Jury must decide whether a person of reasonable
firmness in D’s situation would have been unable to resist
the threat (allows consideration of subjective factors such
as size, strength, age, health).
o Ex, Battered woman ordered by H to participate in robbery.
Threatened to kill her if not. CL- difficult to introduce bws
evidence to explain why it was reasonble for her to
succumb to his threat. MPC- bws is admissible as evidence
of D’s situation.
o MPC approach in D’s situation might actually hurt D. Ex,
Fleming soldier case—D’s duress argument failed bc other
prisoners in D’s situation had been able to resist the threats.
5. Cant bring it upon yourself (limitation)
o Cant put yourself in a situation that leads to duress.
o Ex, D joins gang to do petty theft and gang wants to rob a
bank and D refuses so the gang threatens him with GBH. D
cant assert duress defense bc he voluntarily put himself into
situation.
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6. Duress is NO defense to murder (CL).
o CL- no defense for homicide cases (CA)
o MPC- allows duress for homicide cases.
o Imperfect duress= manslaughter
 CA has gotten rid of this.
o EXAM TIP: If rob a bank and another robber kills
someone, under CL, you are more likely to be responsible
for FM bc duress is not a defense to a homicide. Under
MPC- would allow defense for FM bc D was coerced to
commit the underlying robbery.
Hypo 1: Gun to head and rob bank—duress under either approach
Hypo 2: Help in bank robbery or will push you and lock you in
closet. CL- no duress bc not serious enough harm. MPC- might get
defense.
Hypo 3: Work for publishing company, need job. Boss says you
will lose job unless help company in tax fraud. No duress under
either approach (no economic duress).
Hypo 4: Battered woman, H threatens to beat and give you black
eye unless steals from the store. She shoplifts from the store. CLNot sure bc maybe not here and now and a black eye may not be
serious bodily harm. MPC- unlawful force, didn’t commit serious
crime (sliding scale).
Hypo 5: Menendez brothers. One brother argued killed mom bc
other brother threatened to kill him. CL- no defense (homicide).
MPC- would allow defense which shows why most juris don’t use
it.
2. Insanity
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
3 Mental Defenses: Competency, Insanity (full defense),
Diminished Capacity (partial defense).
Insanity is a mental disorder that provides a full defense to a
criminal charge.
Insanity vs. Competency:
o Insane= mental state at time of crime
o Competent = mental state at time of trial.
o Possible to be insane at time of crime and competent to
stand trial.
o Competent Dusky Standard:
 1. Understand the proceeding
 2. Communicate and assist in your defense.
o Competent to stand trial even if have total amnesia of the
crime bc can still figure out whats going on at trial.
o If foudnt incompetent, send you to mental facility until
become competent.
o Can forcibly medicate you to stand trial as long as (1)
strong govt interest in taking you to trial, (2) reasonable
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possibility that medication will lead to competency, (3) side
effects arent worse than the situation now.
If found insane at trial you get committed—don’t go to jail.
Don’t execute insane people bc they wouldn’t appreciate the
punishment.
Insanity is a LEGAL concept. Experts don’t decide whether
someone is insane, the JURY decides after given the legal standard
by the court.
Mentally retarded is not the same as insane—cant be executed.
ON EXAM: Go through CL approach then MPC approach. If
already discussed irresistable impulse in reference to CL approach,
then just refer back to it.
M’Naughten Standard:
o 1. Presume people are sane
o 2. D must prove
 (a) At time of the act
 (b) Defect or disease of mind.
 1. Too common/ # of cases
 2. Bring upon themselves
 3. Sincerity of case—easily faked?
 4. Clear symptoms
 5. Stigma
 6. Medical History
 If don’t meet these factors, insanity defense
cant be used—not applicable bc no disease
or defect of the mind.
 Sociopaths arent diseased—they are
criminals.
 ON EXAM: Argue disease or defect first
(apply factors) and then analyze both
standards.
 (c) D did not know nature or quality of act or D
didn’t know it was wrong
 Against society’s morals. It must be legally
and morally wrong. Bc if its morally wrong,
it automatically is legally wrong. Person
morality doesn’t matter.
 Ex, Andrea Yates didn’t pass this standardf
bc she knew what she was doing was
wrong—she called the police right away.
OR
 (d) Irresistable impulse (only some juris have this—
courts generally have excluded it) Not able to stop
yourself and even if a polie man was at your elbow,
you wouldn’t be able to stop yourself.
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Lyons Case rejects this aspect of the test bc
all impulses are resistable—no scientific
backup. OR
(e) Deific Decree Exception: Know criminal act is
morally and legally wrong but believe bc of mental
defect that the act is ordained by God. Doesn’t
apply to those following religious faith—limited to
those who hear voice of God.
 State v. Crenshaw: D killed his wife on their
honeymoon. He claimed he did so bc he
thought she was unfaithful and according to
his Moscovite religion he would be wrong
not to kill an unfaithful wife. D was not
legally insane bc he knew his actions were
legally and morally wrong. Also, didn’t get
deific decree exception bc God wasn’t
directly talking to him,
 State v. Cameron: D stabbed stepmother 70
times, left her in bathtub, and left town. He
said God commanded him to kill his
stepmother who was practicing sorcery. D
claimed he was the messiah. D knew his
actions were legally wrong but did them bc
he had been directed by God. D was entitled
to this exception.
Deific decree and irresistable impule are CL
additions.
o
MPC Standard:
o 1. Presume people are sane (same as M’N)
o 2. D must prove
 (a) At time of crime (same)
 (b) Defect of disease of the mind (same)
 (c) Lacks substantial capacity:
 Appreciate criminality (deific decree goes
here) Ex, he knows its wrong to rob bank
but doesn’t realize why society thinks
robbing a bank is wrong.
o Fuse knowledge with an emotional
understanding—he knows its wrong
to rob a bank but doesn’t realize why
society thinks its wrong. OR
 Conform the conduct- same as irresistable
impulse. They knew but they couldn’t
control themselves. Courts generally have
excluded this volitional test.
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o Knew it was wrong but couldn’t
control themselves.
 This standard is more lenient—ex, a schizophrenic
might have a chance here.
o Did D lack substantial capacity either to appreciate the
wrongfulness of his conduct or to conform his conduct to
the requirements of the law?
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3. Diminished Capacity
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Similar to voluntary intoxication—evidence of D’s mental
condition is used to prove that D didn’t form the MR necessary for
a specific intent crime.
Usually only a partial or mitigating defense.
Insanity vs. DC:
o Insane people form MR, just form it out of mental disease
or defect. DC—due to disease, cant form the MR for the
crime.
***Want DC so that EXPERTS can show they didn’t form the
intent (MR)
EXAM TIP: If question asks for mental defenses, best to analyze
both insanity and diminished capacity. If there is a problem in
arguing insanity bc no disease or defect or D knew acts were
wrong, the alternative defense of diminished capacity may apply.
o Ex, D argues that a personality disorder caused him to
commit a crime. Not a mental disease so analyze under DC.
3 Approaches:
o Clark/Wilcox
o Brawner
o MPC
1. Clark/Wilcox: NO defense
o Never allows defense of DC—don’t need it as a defense bc
MPC is a more lenient standard (at the time of Wilcox,
courts using MPC but not anymore) and in death penalty
cases they already allow in mental condition.
o No pscchiatric evidence allowed on issue of D’s MR for the
crime.
2. Brawner: PARTIAL defense
o Allow DC to drop a specific intent crime down to a general
intent crime, but only when there is a lesser-included crime
(majority approach).
o Specific Intent= purposeful or something in the future
o Ex, D is charged with murder 1 but bc of mental problems
only guilty of murder 2.
o Ex, D charged with assault with intent to kill. D argues DC
and found guilty of just assault.
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
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3. MPC: Possibly FULL defense
o Can use DC for any crime even if leads to full defense—
prove no MR for any crime.
o Drops specific intent to general intentif lesser included; if
no lesser included for specific intent, then drops to no
crime.
o Drops general intent to no crime.
HANDOUT—Insanity/DC
4. Intoxication
 At CL, intoxication not a defense.
 Involuntary: Full defense if D committed a crime would not have
otherwise committed.
o 1. Duress/forces you
o 2. Don’t know your taking it (ex, spiked punch)
o 3. Pathological intoxication (unexpected effect—ex, take
advil but acts like LSD).
o Intoxication caused a crustation of faculties.
o May also cause legal insanity—affect D’s substantial
capacity either to appreciate criminality or conform one’s
conduct.
o Regina v. Kingston: While D not looking, person slips a
drug into his drink and D halluciantes and commits a crime.
D has full defense bc he was unaeare of the criminal nature
of his acts. The involuntary intoxication negated D’s MR
for the crime and caused him to lose control.
o However, if you already have the intent to do the act and
you take liquid courage to loosen inhibition, cant argue
intoxication bc you already had the MR.
o 3 forms: unwitting, coerced or pathological intolxication.
Unwitting—unaware taking the drug; Coerced—forced to
take it; Pathological—drug produced unexpected result.
 Voluntary: Partial Defense. Reduces MR.
o Takes specific intent crimes down to general intent crime.
o NEVER allowed for a general intent crime (ie,
recklessness). MPC approach is the same.
 Ex, Arson is a crime of recklessness so no voluntary
intoxication defense.
 However, a second-degree murder based on gross
recklessness is a specific intent crime in CA.
o Ex, drops Murder 1 to Murder2.
o Argue should drop down to the lesser crime
o EXCEPTION: Can get FULL defense ONLY IF it ruins
your brain forever and therefore, can get insanity.
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o People v. Hood: D’s charged with assault with a deadly
 d
weapon. Bc assault doesn’t require a sophisticated intent,
the courts denied voluntary intoxication as a defense. Court
designated assault as a general intent crime.
o Some courts have rejected the traditional approach bc don’t
like specifc vs. general intent distinctions.
 State v. Stasio: Inxociation defense only allowed for
first degree murder or when D has such a prolonged
history of using drugs that he has become insane.
o d
5. Syndrome Defenses
6. Entrapment
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Federal Rule vs. CA Test.
If there is MR and AR, then argue entrapment.
Rationale: (1) Need to set limits on undercover officer bc
punishing people who lack MR, (2) Even if have MR, this is an
invasion of privacy (policy argument)
Federal RULE: No entrapment defense if D is predisposed to do
that specific crime. (subjective standard).
o EXCEPTION: When govt creates the crime by outrageous
govt misconduct, D can bring motion to dismiss and motion
decide by judge. [reality- hardly granted].
o Prosecution will argue this standard.
o Jacobson Case: Govt saw D ordering a lot of legal porn so
kept sending him info on kiddie porn until one day he
actually bought it. He was arrested and raised entrapment
defense in fed court. The issue whether D has to be
predisposed to do any illegal act or predisposed to do this
illegal act. SC held as a matter of law D has to be
predisposed to do this crime. Therefore, D got defense bc
couldn’t prove disposed to buy kiddie porn.
o Criticism: If use predisposition standard, no one will every
win bc can prove predisposition by simply D doing the
crime.
CA RULE: Was the conduct of the law enforcement agent likely
to induce a normal law abiding person to commit the offense.
(semi-objective).
o Semi-objective (and not fully objective) bc implictly this
standard involves the circumstances of the case.
o Defense will argue this standard--more favorable to D.
o Jury decides under this standard.
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MPC: Uses objective standard (CA) but judge decides (CA uses
jury).
NO 3rd party entrapment—only a limit on the govt.
Entrapment HYPO, pg. 172 in Supplement.
VII. Role of Counsel

Ineffective Assistance of Counsel:
o (1) Specific Errors
o (2) Prejudice—errors affected outcome of the case.
o Ex, attorney slept through trial and D sentenced to death. Court held
sleeping didn’t deny him due process rights bc it wouldn’t have made a
difference.
VIII. Rape
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Old Law: Rape is sex without consent by threat or use of force or fraud with
resistance.
New Law: Rape is sex without consent by threat or use of force or fraud.
1. AR: Sex
2. MR: Knowingly
3. Circumstances
o 1. Without consent. Must be honest
b
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