Crime Elements: (1) AR (voluntary affirmative act/omission), (2) MR, (3) ACs
Voluntary Act:
CL: not codified generally, usually consistent w/MPC
MPC (2.01): no liability w/o voluntary act/omission
NOT: reflex/convulsion, unconscious/asleep bodily movement (NEWTON), conduct under hypnosis, or conduct otherwise
not product of effort/determination.
*NOT: “irresistible impulse” (JACOBS)
*NOT act forced by another (MARTIN) when ct determines offense “presupposes” voluntariness.
*Ct MAY read voluntariness into 1 or all elements (e.g. voluntarily being drunk in public), can “roll back” act to which voluntariness
is ascribed (e.g. drinking late at bar vs. being called out by police for wife-beating).
Causation: few states codify, both use 2-step actual/proximate cause determination, CL seeks to “objectively” evaluate foreseeability, MPC
“subjective”/realist (recognizes that judges/juries must intuit what is foreseeable).
CL: “Cause” = (1) but-for (necessary to cause harmful result when it occurred), and (2) proximate (reasonably foreseeable)
MPC (2.03): “Cause” = (1) antecedent but-for which result wouldn’t have occurred, and (2) result isn’t too remote/accidental
In its occurrence to have a just bearing on D’s liability/gravity of offense.
*Foreseeability cast differently:
(1) “Appreciable probability” vs. “highly extraordinary result” (ACOSTA)
(2) “Sufficiently direct cause of harm” (not always exclusive) and “ultimate harm” should’ve been foreseen (ARZON, KIBBE)
(3) No culpability unless conduct is foreseeable “actual, immediate, triggering cause” (WARNER LAMBERT)
*Alicke—“culpable causation”, jury perception may trump anyway, e.g. speeding to hide drugs vs. wife’s present
Intervening Act?
CL: (1) Volitional approach: victim’s own act only breaks chain when voluntary; if D’s act renders victim “irresponsible,” chain is
unbroken (STEPHENSON), (2) Reasonableness approach: victim’s own act only breaks chain when based on “reasonable”
fear/despair (HENDERSON), (3) victim condition: chain unbroken when D’s act is aggravated only due to victim’s own
physical/emotional conditions or religious beliefs (BLAU)
MPC: silent on intervening acts; ask if result/intervening act was “not too remote/accidental to have just bearing on D’s liability”
*Glannon: also suggests intervening acts incl: unusual natural events, gross medmal; don’t break: blameless actors, multiple perps,
foreseeable natural events
*Alicke—“culpable control”, we choose whether we want to see victim as volitional/reasonable and convict accordingly
Omissions: EXC: when acting would endanger oneself
CL: reflected in MPC
MPC (2.01): omission punishable if based on (1) statute (e.g. taxes, Good Samaritan stats) or (2) relationship, generally: status
relationship, K agreement, or voluntary assumption of care that other is dependent on (didn’t count: unmarried lover
(BEARDSLEY), unspecified-responsibility unpaid caretaker (JONES), assisting friend (POPE), misprision of felony (POPE).
Mens Rea: legislatures don’t define well, about ½ of states have adopted MPC mental states
MPC (2.02):
1. Purpose: conscious object to engage in conduct/aware of or hopes/believes ACs exist
2. Knowingly: aware that conduct/circumstances are element/aware result is practically certain
3. Recklessly: consciously disregards risk that element exists or will result/gross deviation from conduct of law-abiding ppl
4. Negligently: should be aware of risk/failure to perceive it is a gross deviation from conduct of reasonable person UTC
*If silence, read in recklessness (PRINCE, would acquit under MPC)
*”One for all”, if ambiguous MR applies to all elements (MORRISSETTE, would acquit under MPC)
MR/Mistake of Fact: (note: P burden to prove MR, if mistake of fact possibility leaves doubt of MR, D wins)
CL:
1. If MR is clear:
a. Knowledge/willful = honest mistake of fact is defense (TYCO)
b. Negligence = only honest AND reasonable mistake of fact is defense
c. SL = no mistake of fact defense
2. If statute is silent on MR:
a. If underlying act, had facts been as D imagined them to be, would’ve been a good act, restrict liability by applying MR
requirement to more elements (reading in knowledge), (MORRISSETTE)
b. If underlying act, had facts been as D imagined them to be, would’ve been a bad act, expand liability by applying MR requirement
to fewer elements (reading in SL), (PRINCE, STIFFLER, JADOWSKI)
c. Public Welfare Offenses: can go different ways, where possession of dangerous instrument/dangerous act puts one sufficiently
on notice of creating danger to public welfare that SL is appropriate (BALINT-drugs, FREED-grenade) or negligence applied out of
policy concerns re: notice, chilling, over-punishing, allows honest+reasonable mistake (STAPLES-gun, LIPAROTA-food stamps).
d. Statutory rape: can also go multiple ways, traditionally SL for policy reasons but some states imposing negligence standard.
e. Jurisdictional vs. Material elements: if mistake relates only to a jurisdictional element, no defense (FEOLA), look to language of
statute, leg history, and common sense/public policy to determine which it is.
MPC:
(2.04): defense if mistake/ignorance negatives the MR required to est a material element of the offense (lenient generally).
Mistake of Law
CL: NO mistake of law defense unless:
(1) Law itself requires knowledge of the law (e.g. tax code, want to incentivize learning about loopholes)
(2) Mistake of collateral law relating to ACs that is honest and reasonable (universal negligence standard) (LONG), NOT
met if D’s understanding is unreasonable (MARRERO) or D is uninformed for failure to investigate law (KING—
expectation that regulated parties will make substantial effort to self-inform built into legislation).
(3) Reliance on official empowered to interpret law (ALBERTINI, COX)
MPC: D must have met MR, if mistake of law negatives MR, it’s a defense (2.04, usually MORE FORGIVING than CL).
2.02: knowing what’s an element of an offense is not itself an element
2.04: defense if statute is not available or D relies on official statement of law/interpretation later found to be erroneous.
Rape:
*Controversial features: marriage exception, gender specificity, consent mistake of law defense, force/resistance reqs
*Look to outline for specific statutes, e.g.:
MD: traditional, vaginal, force, non-consent
NY: some reform, marriage bar, gender bias for sexual misconduct but does create the category where non-consent but
not clear force requirement
WI: most reform, no marriage bar, greater penalties based on injury/effect on victim, not gender bias, felony where no
consent w/o force req
MPC: traditional, marriage bar/living together, gender bias, force/”compulsion reasonable woman would submit to”. Allows
mistake of age defense if >10, short SOL, no uncorroborated P testimony.
MR of Rape (consent issue): when statutes don’t specify, cts read differently:
1. Knowledge (uncommon, but traditional CL): “no sometimes means yes,” allows for honest mistake of fact (MORGAN, Eng.)
2. Recklessness (rare, only AK): must consciously disregard evidence of non-consent (REYNOLDS)
3. Negligence (MAJORITY): objective standard punishing Ds inattentive to norms of community, allows reasonable + honest
mistake of fact defense (NJ, CA, CRAIGSLIST, FISCHER CITED APPROVINGLY but didn’t adopt).
4. SL (reform): “no means no,” controls jury ability to exercise own views, no mistake of fact defense (LOFKOWITZ/SIMCOCK
(MA), Canada). Note: no statute specifies this; it’s done by ct interpretation.
*See outline notes on consent reform
AR of Rape (force issue):
Traditional: (1) force or threat of force, (2) proven by physical resistance, (3) threat is enough to make a “reasonable woman”
submit (RUSK DISSENT)
Reform options:
(1) Read out force requirement (MTS)
(2) “Indecent assault” alternative: lack of consent regardless of “force” (leg response to BERKOWITZ)
(3) Broad statutory definition of force to incl. emotional, mental, etc. (post-RUSK in PA)
(4) Model statute (“sexual assault/abuse”), p. 241
(5) Shaming penalties, p. 243
(6) Civil remedies (e.g. Violence Against Women Act, struck down by SC)
*See outline notes on force reform
Homicide: charts!
*Outline notes on:
a. Ordinary negligence standard vs. individualized standards for capacity (involuntary manSL), unjust vs. appropriately reflects
blameworthy carelessness/not respectful to have different standards
b. Ct decision/leg responses to drunk driving (depraved and malignant heart or not, CA and VA mitigated/bumped in response)
c. Judicial limitations on FM: (1) “inherently dangerous” (elements or facts tests, PHILLIPS (elements)), (2) “merger” (SMITH)
d. FM criticism: Kantian (doesn’t reflect intent, absence of gradations, not proportionate condemnation), deterrent benefits are
delusional b/c felons don’t get message so departure from normal fault conceptions isn’t justified, social experiments show most
people would punish as manSL not murder.
Attempts: merges w/crime if completed. Attempted FM not an option in most juris.
CL:
a. MR: purpose (specific intent), no matter the MR of the offense
b. AR: “dangerous proximity” test (PEASLEE vs. RIZZO), a few cts use “equivocality test (D’s acts speak to having purpose of
committing crime).
c. Renunciation: NO defense once liability attaches
MPC:
a. MR conduct crimes (e.g. drug possession) same as underlying offense/result crimes (e.g. homicide) purpose to cause OR belief
(knowledge) that conduct will likely cause result (5.01)
b. AR: “substantial step” corroborative of criminal purpose (LOWER bar than DP) (BUFFINGTON—weapons/lying in wait would
normally count, DORSEY—lack of sufficient drug ingredients means no SS). NOT INSUFFICIENT as a matter of law: lying in
wait/searching, enticing vic to go to place of commission, reconnoitering place, unlawful entry to place, possession of
materials to be used, soliciting innocent to engage in crime.
c. Renunciation: if complete + voluntary, cannot be motivated by higher risk of apprehension or desire to move/postpone crime
*Factual/legal impossibility: under CL and MPC, factual impossibility no defense (e.g. breaking safe with magic) but legal
impossibility is (e.g. trying to buy gun thought to be illegal that isn’t). Note: cts may decide culpability and label as they want b/c
possible to characterize either way. P will argue factual, D will argue legal (e.g accepting “stolen” goods that weren’t stolen).
Accomplice: attaches when 1+ members of group commits underlying crime
AR: solicit/aid/abet/agree to aid/encourage (WILCOX). Low bar, may simply deprive victim of advantage (TALLEY). Principal
need not know of aid. MPC (2.06): adds: may incl causing innocent to commit crime, failing to fulfill legal duty to prevent crime,
and (2.06(4)) when causing a result is part of the offense, guilty of complicity if causing result w/kind of culpability sufficient for
commission of the offense.”
MR:
(1) MR for underlying offense (WILSON) +
(2) purpose to assist principal
CL: “stake in the venture/nexus”, though neither sufficient nor required (GLADSTONE, insufficient stake, HAMILTON, yes
for maintaining place for drug distribution, HAMDAN)
MPC: “purpose of promoting/facilitating crime”
Defenses?
(1) Derivative liability?
CL: generally principal must have felonious intent (HAYES) but sometimes accomplice still liable independently (e.g. VADEN)
MPC (5.01(3)): liable regardless of whether principal has felonious intent
(2) Gebardi exception (victim or acts inevitably incident)?
E.g. transported prostitutes, drug buyers, stat rape victims. PINO-PEREZ: underlings incident, suppliers not (no defense).
(3) THE USUALS (mistake of fact/law, causation, ones below)
Conspiracy: separate offense distinct from underlying offense, liability starts at moment of agreement
AR:
(1) Agreement b/t 2+ ppl that 1 will commit crime
a. Need not be express if concerted action contemplated and participants adhere to scheme (INTERSTATE)
b. May be inferred from conduct (ALVAREZ)
c. Agreement to ancillary details (e.g. why money was dirty, STAVROULAKIS) not necessary as long as agreement to
“essential nature” of plan (Not ROSENBLATT, didn’t know money was dirty at all).
(2) Overt act toward commission (MPC + majority, CL doesn’t always require, esp for major crime)
MR: purpose to agree + intent for crime to succeed (mistake of fact/law defeating underlying offense defeat conspiracy)
Defenses?
1. Merger—no
2. Impossibility—no
3. Didn’t agree to all acts/consequences?
CL: traditionally, liable for all reasonably foreseeable resulting crimes (PINKERTON), though sentencing often excludes
MPC: not liable for ALL resulting act/crime
4. Withdrawal?
CL: no
MPC: allowed if affirmative steps to disavow/defeat objectives of conspiracy + communicated those acts to co-conspirators or
disclosed scheme to law enforcement. D burden to show, if not continued participation assumed.
5. Bilateral agreement? SOME cts require that agreement be bilateral, so if 1 party is faking/undercover cop/etc, no conspiracy
*Outline notes on RICO, state gang laws
6. THE USUALS (mistake of law/fact, causation, ones below)
Self-Defense: justification or excuse
Classic
NAHAK,
East
Dakota
Imperfect
True Man
Doctrine
BWS
(1) Threat, actual or apparent, of use of deadly force against D
(2) Threat is unlawful and immediate [exc: BWS]
(3) D honestly and reasonably believes deadly force was necessary to prevent imminent peril (some juris define as
“death/GBH”) [exc: TMD/BWS]
Expands #3:
a. May be imminent threat of gross individual indignity too
b. Honest belief suffices, even if unreasonable (MPC allows too)
Many juris: if D’s belief was honest but unreasonable, D gets partial defense mitigating to manslaughter (GOETZ)
Split juris: no duty to retreat, even if safe to do so, if:
(1) D is w/o fault in provoking confrontation and
(2) D is in a place he has a lawful right to be
(3) There placed in reasonably apparent danger of imminent harm
(4) Force used was reasonable
EXC: castle doctrine, even juris WITH a duty to retreat immunize when attack occurs w/in the home. Some, e.g. LA, also
allow homeowner to subjectively decide when deadly force is reasonable necessary.
EXC: some states: when family member/resident of same house
Cts divided (Norman 1, yes, vs. Norman 2): Allows D to proffer evidence of BWS to overcome “imminent” threat requirement
(#2) and get to jury on question of “reasonableness” UTC of BWS
Necessity: choosing lesser of 2 evils. Prevents greater harm vs. slippery slope of individuals taking law into their own hands
*See outline for prison escape application (UNGER)/civil protest rationale
CL
1. Imminent
Threat?
2. Responsible
for choice?
3. Homicide?
4. Contrary to
public policy?
MUST be imminent
D CANNOT have brought on choice of evils
D CANNOT kill (DUDLEY)(majority)
No defense if contrary to public policy decision
(SCHOON, HILL)
MPC
Choice must be reasonable, imminence not req’d but bears on
reasonability/no alternatives
No restriction (but D may be liable for crime of neg/reck if
neg/reck brought about conditions requiring the choice)
No bar, D can kill
No defense if contrary to public policy decision (SCHOON, HILL)
Duress: saving own ass. Voluntarist: will overborne, impossible to deter/unjust to punish, expressive: D excused from acts if they reflect
appropriate values. As w/necessity, must weigh moral choice made. Under CL, often same result as necessity.
CL
1. Threat of:
Death/GBH
2. Against:
D or close friend/relative
3. Reasonable: [BWS: comp.are
“Ordinary person” would yield
ROMERO vs. WEBB]
4. Imminence:
Must be imminent (CONTENTO-PACHON)
5. Self-created:
NOT self-created
6. Involving murder:
NOT involving murder
*No application to POWs post-FLEMING
MPC
Unlawful force
Any person
Person of “reasonable firmness” would not resist
Need not be imminent (TOSCANO)
Not recklessly, knowingly, or purposefully created
(MAY involve murder)
Insanity: note: juries often convict as frequently under different standards, extra-doctrinal judgments at play
M’Naughten Rule
-Majority (reemerged
after Hinckley)
-Cognitive
Durham Rule
-Volitional
-Used briefly
MPC Rule
-Volitional
Guilty but Insane
D excused when, b/c of illness, he lacks the capacity to understand the nature or wrongness of his act (e.g. mom
squeezing baby like grapefruit/D thinking he was told by president to kill someone)
--Burden of proof of insanity on D
--“Guilty but insane” punishment may apply (below)
D excused when he wouldn’t have committed the crime but for mental illness
--Shifts burden of proof of sanity to P (GREEN, schizophrenic killer, if act consistent w/sanity or insanity tie goes
to D)
D excused when, b/c of illness, he can’t control his behavior (wrong is due to an “irresistible impulse”)
(FREEMAN, addict seller, BOBBITT)
Some cts use stricter M’Naghten-style rule but allow different penalties for those whose mental illnesses don’t
rise to level of insanity
Abolition/MR Model
D excused ONLY when insanity completely negates an element of a crime. If D had intent to commit act, liable
(UT, ID, KS, MT)
even though definition of crime may require more specific MR, like malice.
--Removes P burden of proving specific intent re: wrongfulness
--Some cts have expressly rejected, saying insanity defense req’d by due process
*GUIDO: expert can’t provide definition of “disease”, that’s for jury to determine