What is a crime?
- Any social harm defined and made punishable by law.
- Requires proof beyond a reasonable doubt
Greenwalt on Punishment:
1. It is performed by and directed at, agents who are responsible in some
sense.
2. It involves designedly harmful or unpleasant consequences.
3. The unpleasant consequences are usually preceded by a judgment of
condemnation.
a. Subject of punishment is explicitly blamed for committing a wrong
4. It is imposed by one with the authority to do so.
5. It is imposed for a breach of some established rule or behavior.
6. It is imposed on an actual or supposed violator of the rule of behavior.
Retributivism: grounded in notions of moral desertion / backward looking
Utilitarianism: concerned with broader benefits for society / forward looking
(rehabilitation, incapacitating, deter crime)
Ex.  Queen v. Dudley & Stevens (case where guys eat other guy on boat)
- Retributivist view = taking an innocent life is wrong, no matter the
circumstances and as such, Dudley & Stevens should be punished.
- Utilitarian view = this is a single, isolated incident and as such, punishing
Dudley and Stevens does not benefit society. Further, this is such an
extreme event that there is likely no deterrent value to punishing them
(ie. anyone in the same position would probably do the same thing)
Principle of Legality: “no crime without law, no punishment without law”
- Criminal statutes should be understandable to reasonable law-abiding
citizens
- Should be crafted so that they do not delegate basic policy matters to
police, judges, and juries for resolution on an ad hoc and subjective basis.
(no judicial law making)
- Judicial interpretation of statutes should be biased in favor of the accused
o ^^^Lenity Doctrine
ACTUS REUS:
the physical or external part of the crime
-
Includes both the conduct AND the harmful result
o Actus  voluntary physical movement
o Reus  fact that this conduct results in a certain proscribed harm
MPC 2.01: “Requirement of a Voluntary Act; Omission as Basis of Liability;
Possession as an Act” pg. 947
o A person is not guilty of an offense unless his liability is based on
conduct which includes a voluntary act or the omission to
perform an act of which he is physically capable.
 NOT VOLUNTARY ACTS:
 Reflex/convulsion
 Bodily movement during unconsciousness or sleep
 Conduct during hypnosis or resulting from hypnotic
suggestion
 Bodily movement that otherwise is not a product of
the effort or determination of the actor, either
conscious or habitual.
o Omission does NOT constitute liability unless:
 Law makes his omission a crime
 There was a legal duty to act  example of legal duty:
 1. Statute imposes a duty
 2. Certain status relationship to another
 3. Where one has assumed a contractual duty to care
for another
 4. Where one has voluntarily assumed the care of
another and has so secluded the helpless person as
to prevent others from rendering aid
 5. When a person creates a rise of harm to another
o Moral duties do not matter
o Possession = act when,
 Possesor knowingly procured or received the thing
possessed OR was aware of his control thereof for a
sufficient period to have been able to terminate his
possession.
MENS REA:
mental elements of crime
-
Culpability Approach: guilty mind
-
Elemental Approach: represented by statutes that set out the mental
element that the prosecutor has to prove.
Result Crime = law is punishing you because of unwanted result.
Conduct Crime = law is punishing your conduct (solicitation, DUI, etc.)
General Intent Crime = Crime doesn’t specify a requisite mental state that the actor
must have acted with to be convicted of the crim.
Specific Intent Crime = Crime includes a specific mental state in the statute that the
prosecutor must show in order to convict.
Common Law Intent:
- PURPOSE and KNOWLEDGE
o Prosecutor must prove either one to satisfy intent UNLESS the
statute identifies “intent” more specifically.
MPC 2.02: “General Requirements of Culpability” pg. 947
- Cannot convict someone of a crime unless he acted purposely, knowingly,
recklessly, or negligently with respect to whichever element the law
requires.
o Purposely:
 It is his conscious object to engage in the conduct or cause
the result to happen AND
 If the element involves attendant circumstances, he is
aware of the existence of such circumstances OR he
believes/hopes they exist.
o Knowingly:
 He is aware that his conduct is of that nature
 He is aware that his conduct is practically certain to cause
the result
 Knowledge is established if a person is aware of a
high probability of its existence, unless he actually
believes that it does not exist.
o Recklessly:
 Actor consciously disregards a substantial and unjustifiable
risk that the material element exists or will result from his
conduct. (The risk must be of such a nature and degree that,
considering the nature and purpose of the actor’s conduct
and the circumstances known to him, its disregard involves
a gross deviation from the standard of conduct that a lawabiding person would observe in the actor’s situation).
  Aware of the risk but don’t act accordingly
o Negligently:

-
Actor should be aware of a substantial and unjustifiable
risk that the material element exists or will result from his
conduct. (The risk must be of such a nature and degree that
the actor’s failure to perceive it, considering the nature and
purpose of his conduct and the circumstances known to
him, involves a gross deviation from the standard of care
that a reasonable person would observe in the actor’s
situation.)
  Not aware of the risk, but should be
If no element required by statute  must prove purposely, knowingly, or
recklessly
If law requires a lower mental state  you can prove that mental state or
higher
Willfully = knowingly (unless a purpose to impose further requirements
appears)
NO STRICT LIABILITY CRIMES IN THE MPC  if strict liability, its only a
“violation” MPC 2.05 (obsessed with mens rea)
***If you want to make an act a crime under MPC, require mens rea proof of at least
negligence.
MISTAKE OF FACT and LAW:
COMMON LAW: Mistake of Fact
- General intent  only a reasonable mistake of fact is a defense
-
o Moral Wrong Doctrine: Mistake was reasonable, but conduct was
immoral.
 Court’s will sometimes allow the conviction.
 Ex. Woman is confronted by man, thinks he is a mugger
(ends up being a cop) so she strikes him. Because court’s
look at conduct through the eyes of D, moral wrong
doctrine wouldn’t apply because her conduct wasn’t
immoral.
o Legal Wrong Doctrine: Mistake was reasonable, but conduct was
illegal.
 D can be convicted of the more serious offense that his
conduct established.
 Ex. D was reasonably mistaken about the age of recipient of
child porn (believes he’s 18, but he’s actually 17). If D is
prosecuted under law that prohibits giving child porn to
minors (not just distributing illegal porn) he can be
convicted under the legal wrong doctrine even though the
mistake of fact was reasonable. (“I thought I was giving it to
an adult!” because the distribution is already illegal,
mistake of fact is no longer a defense.)
Specific intent  reasonable OR unreasonable mistake of fact, if
genuine, is a defense when it negates the specific mental element of
the crime.
o People v. Navarro: charged with grand theft which is a specific
intent crime (trespassory taking AND with the intent to steal) 
Ct held that Navarro could not be convicted because his mistake of
fact (believing that the wooden beams were abandoned in the
construction site and thus he had the right to take them) negated
the mens rea required to prove that he had the intent to steal them
(can’t steal something that doesn’t have an owner).
Mistake of fact is NOT a defense for strict liability crimes.
Willful blindness is NOT a defense.  Mistake of Law almost never a defense under
CL. Same exceptions as MPC listed below are when it can be a defense.
MPC: 2.04 pg. 950
- Ignorance or mistake as to a matter of fact or law is a defense if:
o The ignorance/mistake negates the mens rea element OR
o The law provides that the state of mind established by such
ignorance/mistake constitutes a defense.
 NO DEFENSE IF  D would be guilty of another offense had
the situation been as he supposed. (in this situation,
ignorance/mistake can reduce the grade and degree of the
offense. )
- Belief that conduct does not constitute an offense is a defense when:
o NOTICE: The statute is not known to the actor AND it has not been
published or otherwise reasonably be made available prior to the
conduct alleged OR
o OFFICIAL STATEMENT: Acts in reasonable reliance on an official
statement of the law, afterward determined to be erroneous.
 D must prove these defensed by a preponderance of the
evidence.
***Same child porn distribution hypo as above  under MPC, D would be convicted
under the more serious statute (giving to minors) but would be punished under the
less serious statute of giving porn to adult.
ATTACK:
If specific intent:
 Does mistake of fact relate to specific intent element?
- If YES: determine if the mistake of fact negates the specific intent element.
- If NO: treat offense as general intent.
- ****Doesn’t matter if mistake was reasonable or unreasonable.
If general intent:
 Did D act in a morally blameworthy way?
- If YES: If mistake was reasonable, it is not blameworthy. If mistake was
unreasonable, it is blameworthy.
- If NO: not guilty.
If strict liability:
 Mistake of fact is never a defense. UNLESS  moral wrong doctrine or
legal wrong doctrine applies.
CAUSTION:
Common Law:
- Actual Cause = Cause-in-fact
-
o But-for test: result would not have happened when it did but for
D’s conduct
o Substantial Factor Test: apply when 2 or more independent actors
commit separate acts, each of which is sufficient to bring about the
prohibited results. (D’s conduct was cause-in-fact of a prohibited
result if the subject conduct was a “substantial factor” in bringing
about prohibited result.)
Proximate Cause = legal causation
o Involves intervening but-for occurrence after the actor’s conduct
and prior to prohibited result.
 Whether the intervening act makes D’s conduct not enough
to convict. (Intervening act = superseding cause if it gets D
off)
MPC: 2.03  Causation
Proximate Cause:
What was the actual result?  Was the actual result “within the purpose of the
actor?”
- If YES  Then conduct was a proximate cause.
- If NO  Did the actual result involve the same kind of injury/harm as that
designed?
o If NO  Conduct is not a proximate cause.
o If YES  Was the actual result too remote or accidental in its
occurrence to have a just bearing on the actors liability?
 If YES  Conduct is not a proximate cause
 If NO  Conduct is a proximate cause.
HOMICIDE:
Common Law
Model Penal Code 210.0-.05
First-Degree Murder:
premeditated and deliberate homicide (2nd look
approach (premeditation = long enough to afford
a reasonable man to take second look at what he
is going to do), Twinkling of the eye approach
(premeditation = can happen in one second), etc.)
Or w/ Arson, Rape, Burglary, Robbery
INTENTIONAL
Second-Degree Murder:
malice aforethought (intent to kill, knowledge that
practically certain to kill, intent to cause grievous
bodily harm, depraved-heart/indifference murder,
intent to commit a felony)
OR extreme recklessness (UNINTENTIONAL)
(“wanton or reckless disregard for human life”)
Voluntary Manslaughter:
Heat of passion or provocation (1) adequate
provocation by victim, (2) sudden (3) heat of
passion, (4) causal connection between
provocation, passion, killing (5) no time to cool
off (6) intentional killing
Traditional categories: extreme assault or battery
upon defendant, mutual combat, injury or serious
abuse of close relative of defendant, false arrest,
sudden discovery of spousal adultery, WORDS
ALONE NOT USUALLY ENOUGH (words
can only be enough if threatening imminent
bodily harm)
Involuntary Manslaughter: (unintentional)
grossly negligent behavior resulting in
accidental death of another – gross deviation
from the standard of care used by an ordinary
person – wanton or reckless disregard for human
life. OR killing committed during a crime but
not felony murder
Murder: (NO DEGREES)
210.1 A person is guilty of criminal homicide
if he purposely, knowingly, recklessly, or
negligently causes the death of another human
being.
210.2 Murder: Criminal homicide committed
(a) purposefully or knowingly
(b) recklessly under circumstances manifesting
extreme indifference to the value of human
life. Such recklessness and indifference are
presumed if actor is engaged or accomplice in
commission/ attempt of or flight from robbery,
rape, arson, burglary, kidnapping, felonious
escape
210.3 Manslaughter:
(a) homicide committed recklessly;
(b) homicide which would otherwise be murder
under influence of extreme mental or
emotional disturbance for which there is a
reasonable explanation or excuse.
Determination of reasonableness made from
viewpoint of person in actor’s situation under
circumstances as he believes them to be
210.4 Negligent Homicide: homicide
committed negligently.
(Should have known about a substantial a
substantial and unjustifiable risk of death)
Depraved heart murder = unintentional killing  STILL A MURDER
COMMON LAW
MPC
First Degree Murder
Murder – No Degrees
1. Premeditated and deliberate
1. Purposefully or knowingly OR recklessly
under circumstances manifesting extreme
indifference to the value of human life
Second Degree Murder
1. Malice aforethought OR EXTREME
recklessness; depraved heart murder
Voluntary Manslaughter (Murder Mitigated)
1. Heat of passion/provocation
Manslaughter
1. Recklessly or murder under extreme mental
or emotional distress
Involuntary Manslaughter
1. Criminal negligence, “regular” recklessness
Negligent Homicide
1. Homicide committed negligently
PROVOCATION:
Common Law
Model Penal Code
Words are not enough.
Informational words may be
enough.(words that threaten imminent
bodily harm may also be enough)
 Words alone are enough for a sufficient
provocation to mitigate murder to
manslaughter
 The victim does not have to be the
provoker  innocent bystander can be
killed and D can still use provocation
defense
 Okay if the defendant is genuinely
mistaken as to what she said
 There does not have to be sudden
provocation – could be a buildup of
events which leads a person to commit
the act
 MPC 210.3(1)(b)  mitigates murder bc
of extreme emotional or mental
disturbance
Side Note: Premeditated/ Deliberate factors
(1)Want of provocation on the part of the
deceased
(2)The conduct or statements of the defendant
before and after the killing (3)Threats and
declarations of the defendant before and during
the court of the occurrence giving rise to the death
of the deceased (4)Ill will or previous difficulty
between the parties(5)The dealing of lethal blows
after the deceased has been felled or rendered
helpless (6)Evidence that the killing was done in a
brutal manner State v. Forrest (shooting
terminally ill father in head was premeditated)
Midgett v. State (father intended continued abuse
of son, not death)
FELONY-MURDER RULE:
 primary purpose of felony-murder rule is to deter criminals from
committing accidental or negligent killings during the commission of
felonies. NEED CLASS NOTES ON THIS MATERIAL!!!!!!
COMMON LAW
MPC
Accidental homicide is murder if it occurs
during commission or attempted commission of
any felony; highly jurisdiction-specific
Statutory: (first degree felony murder)
legislature decides which offenses will be
considered for one to be guilty of murder if it
happens in the commission of the felony
Common Law: (Second degree felony murder
rule) – judge created, the prosecutor does not
have to show mens rea (strict liability)
- If you commit a felony you have notice
that you would be on the hook for
murder
Inherently dangerous test: felony must be
inherently dangerous; often must be impossible
to commit without creating substantial risk of
death People v. Howard (evading police not
inherently dangerous)
Merger rule: felony must be independent from
the act that caused the murder; must have
independent purpose
 Assault with a deadly weapon leads to death
 Look to the intent of the felony
Causation: homicide must pass but-for test;
without felony, would not have occurred
Killing must be during felony or during
immediate flight from the felony.
Foreseeability: death must be foreseeable.
Death must be in the furtherance of the felony.
Victim must not be a co-felon: most states
State v. Sophophone (police were doing
innocent act/co-felon not a part of felony
murder)
NO FELONY MURDER RULE
210.3(b) Murder - Recklessness and indifference
are presumed if actor is engaged or accomplice in
commission/attempt of or flight from:
Robbery
Rape
Arson
Burglary
Kidnapping
Felonious escape
Capital Punishment – ¾ of states have the death penalty
I. cruel and unusual
a. unnecessary infliction of pain and suffering
b. evolving standards of decency
i. legislative trends
ii. morality arguments against death
c. one SCOTUS case declare statute
unconstitutional
i. many states revised death penalty
statutes to reflect MPC approach
in § 210.6
d. Jury cannot impose death penalty w/o
certain aggravating factors
e. Jury cannot impose death penalty if there
are certain mitigators
RAPE:
 GENERAL INTENT CRIME (all you need is some sort of moral
blameworthiness with regard to whether the intercourse was against
the will.)
Actus Reus:
- Intercourse
- Force
o Physical (including threats)
o Non-physical (fraud in the factum)
- Non-Consent
o Resistance requirement
o Post-penetration withdrawal of consent (less than rape)
- Against the will
Mens Rea: General Intent Crime (reasonable mistake of fact IS a defense)
Rape Shield Laws:
- Deny D opportunity to examine the P’s prior sexual conduct or reputation for
sexual conduct.
o Policy Reasons:
 Prevent harassment/humiliation
 This type of evidence has no bearing on consent for the time in
question
 Exclusion keeps jury focused on issues relevant to the case at
hand
 Can’t trust juries to actually exclude the evidence of
victim’s sexuality, etc.
 Promotes willingness to report
o Implicitly violations D’s 6th Amendment rights but usually found
constitutional
- Many states still have marriage immunity:
COMMON LAW
Sexual intercourse by a man with a woman not
his wife is rape if committed either (1) forcibly or
threat of force, (2) by means of deception, (3)
while the woman is asleep or unconscious, or (4)
under circumstances in which the female is not
competent to give consent
Mens rea: purpose, knowing, reckless
Actus Reus: 1. Intercourse; 2. Force; 3.NonConsent/ Against the will/Compulsion
Past instances of threat do not apply State v.
Alston
MPC
213.1 (1) Rape – a man who has sexual
intercourse with a woman is guilty of rape if he
(purposely, knowingly, or recklessly):
(a) compels the woman to submit by force or by
threat of imminent death, serious bodily injury,
extreme pain or kidnapping, to be inflicted on
anyone
(b) substantially impaired her power to appraise
or control her conduct by giving her
drugs/intoxicants
(c) the female is unconscious
Acts reasonably calculated to induce fear=Force
State v. Rusk
Forcible compulsion includes moral,
psychological, or intellectual force used to
compel victim to have sex; whether evidence is
sufficient to demonstrate forcible compulsion is
determination based on totality of the
circumstances Commonwealth v. Berkowitz
Resistance Requirement: requires proof that: 1.
the female did not consent AND 2. that the sexual
act was by force or against her will (use of or
threat to use force likely to cause serious bodily
harm is sufficient; nonphysical threat does not
suffice)
Maj rule: “reasonable” resistance-physical
indication of non consent
Mistake: man is not guilty if he entertained
genuine and reasonable belief that female
consented (eroding as majority rule)
Withdrawn Consent: no rape if consent
withdrawn after penetration but may be guilty of
another offense (majority rule) People v. John Z.
(minority rule of withdrawal after consent is rape)
Fraud: fraud in the factum: persuading someone
it’s not actually intercourse, vitiates consent
(doctor switching penis for medical instrument)
Fraud in the inducement: persuading someone to
engage under false pretenses, does not vitiate
consent – NOT RAPE Boro v. Superior Court
(“anonymous” immune person, have sex to get
cured)
(d) the female is less than 10 yrs. old
Mistake: just looking for blameworthiness, if
negligent then no mens rea
Not mentioned
SIDENOTE:
Rape Law Reform
Push to remove force requirement (Michigan and Illinois)
Making rape and sexual assault statute gender neutral
(including statutory rape)
Rape shield laws (protects victims during court hearings,
eliminating sexual history from testimony when it is
deemed irrelevant)
 Illinois and Penn have strong rape shield laws
o Prior sexual history with someone
not the D is inadmissible
 In Michigan
o Prior sexual history with someone
not the D is inadmissible unless it is
to show the origin of seaman, STDs,
or pregnancy
 Marital immunity
o Idea is that there is a contractual
sexual consent
o In effect until 1980 in 40 states
o Still limited marital immunity in
states today
o MPC has limited marital immunity
Impersonation of a spouse: some courts fraud in
factum(Majority), others fraud in inducement
(Minority)
Common Law Majority Rule: reasonable belief that victim voluntarily consented to
intercourse negates the mens rea.
How does system deal with stat rape of Benjamin Button? (someone who isn’t as
morally culpable as society is OK with punishing)
- Prosecutor can exercise discretion in prosecuting
- Judge can be lenient in sentencing
- Jury nullification
- Ask governor for pardon
DEATH PENALTY:
Arguments against methods of capital punishment:
- Under 8th A. whether the methods of execution are too much pain making
them cruel and unusual punishment
- Evolving standards of decency  although at framing this method of
execution was OK, we have evolving standards of decency that should speak
to a new requirement that prohibits certain forms of punishment.
Have to find an aggravating factor to impose death penalty. (Even if aggravating
factor is present, jury does not have to impose death penalty if there is a mitigating
factor.)
THEFT:
Common Law:
- Larceny = requires a taking AND carrying away (trespassory taking and
carrying away of personal property of another with intent to steal)
o Slightest motion of carrying away is sufficient
o “Permanently” is not taken literally  just has to be long enough to
deprive them of enjoying the property.
- Robbery = larceny + violence/intimidation
- Embezzlement = conversion of property in a non-trespassory manner,
accompanied by a breach of trust
- False Pretenses = obtaining possession and title to property through false
representation made with intent to defraud the owner of the property.
MPC 223.0 pg. 991:
- No specific asportation requirement
****Under both Common Law and MPC, you are NOT guilty of theft if you have a
genuine belief that the property that you’re taking belongs to you or you have some
legal right to it.
ASSAULT & BATTERY:
Common Law Battery: unlawful application of force to the person of another
willfully or in anger (with or without an instrument).
- Consent to touching = no batter
Common Law Assault: an unlawful attempt, coupled with a present ability, to
commit a violent injury on the person of another.
MPC 211.1  Simple Assault & Aggravated Assault pg. 983
- Simple Assault  A person is guilty of assault if he:
o Attempts to cause or purposely, knowingly, or recklessly causes
bodily injury to another OR
o Negligently causes bodily injury to another with a deadly weapon OR
o Attempts by physical menace to put another in fear of imminent
serious bodily injury.
- Aggravated Assault  A person is guilty of aggravated assault if he:
o Attempts to cause serious bodily injury to another, or causes such
injury purposely, knowingly, or recklessly under circumstances
manifesting extreme indifference to the value of human life (felony in
2nd degree) OR
o Attempts to cause or purposely or knowingly causes bodily injury to
another with a deadly weapon (felony in 3rd degree).
3
DEFENSES:
1.
2.
3.
4.
5.
Failure of Proof
Offense Modification
Public Policy Defenses
Justification
Excuse
Govt MUST prove every element of a defense beyond a reasonable doubt.
D MAY invoke an affirmative defense to rebut elements.
Justification v. Excuse
Justification
Excuse
1. All the elements of the crime proven including
the social harm.
2. Although that social harm element is present, it
is outweighed by society need or avoidance of a
greater harm.
3. Although we can prove they committed each
element of the crime, they did nothing wrong.
4. "I did nothing wrong for which I should be
punished."
EX: Forest fire rages toward town, D sets fire to
cornfield which acts as fire shield and prevents
burning of the town saving everyone
 D satisfies all elements of arson, immediate
harm caused is that which the statute precisely
intends to prevent and punish
 Defense b/c conduct and harmful events
tolerated and even encouraged by society
1. All elements of crime are established
2. The social harm is not negated by a societal
need or avoidance of greater harm.
3. No punishment due to lack of moral
blameworthiness.
4. "I did something I shouldn't have done, but I
should not be held criminally accountable for my
actions."
EX: Came at me w/knife and so I had to kill him
 Greater harm: innocent person would have
been killed - harm outweighed
Defense of Necessity
Self - Defense
Crime Prevention
EX: He put a gun to my head and told me I had to
kill those people
EX: Insane person kills someone -voices in my
head made me do it
 Didn't avoid greater harm, but lack of
blameworthiness
Insanity
Duress
Self-Defense
Common Law
Model Penal Code 3.04
Objective/Subjective Test:
1. Threat – actual or apparent
2. Unlawful - threat has to be unlawful
3. Imminent - threat must be imminent peril of
seriously bodily injury or death. Actor must
believe they are in imminent threat of serious
bodily injury or death
4. Necessity – Must genuinely believe that your
response was necessary for you to save your
life from that threat.
5. Objectively reasonable - These beliefs must
be genuine and they must be reasonable from
an objective standpoint – People v. Goetz
Subjective Test:
3.04 (1) - May use deadly force when defendant
believes that such force is immediately necessary
to protect himself against either (1) death, (2)
serious bodily injury, (3) forcible rape, or (4)
kidnapping
Aggressor Rule: If defendant is aggressor, no
right to self-defense unless def withdrawals from
altercation and effectively communicates that to
the other person United States v. Peterson
If defendant is aggressor but uses non-deadly
force, and victim responds with deadly force,
defendant regains right to self-defense
May always use non-deadly force to protect
against unlawful aggressor; includes illegal arrest
by law enforcement
Rule of Retreat: Maj. Rule: Can stand your
ground
Minority - Safe Retreat required before deadly
force
Castle Doctrine-some JD extend to yard
(2)(b) - May not use deadly force if: actor
provoked use of force, can retreat safely (not
obliged to retreat from home)
(2)(a) - May not use force to resist an unlawful
arrest being made by police officer
3.11(2) – A threat of deadly force or showing a
weapon that is intended only to create
apprehension is NOT deadly force.
Aggressor Rule: If defendant is aggressor, no
right to self-defense, unless def withdrawals from
altercation and effectively communicates that to
the other person
If defendant is aggressor, if he retreats he regains
right to self-defense
If D belief was wrong and was recklessly or
negligently formed, may be convicted of type of
homicide charge requiring only reckless or
negligent criminal intent (3.09)(2)
Rule of Retreat: may not use deadly force
against aggressor if he can avoid doing so with
complete safety by retreating; generally not
required in home or place of work
Common Law self-defense elements =
1. Threat
2. Unlawful threat
3. Imminent
4. Necessity
5. Objectively Reasonable
a. D must be FAULT free  if D creates necessity to kill, self-defense
is denied
b.
c.
d.
e.
i. BUT  to reinvoke self-defense, communicate an attempt
to withdraw, and intend to withdraw in good faith.
Rule of Retreat  retreat to the wall
Castle Doctrine  don’t need to retreat in own home if attacked
at no fault of your own.
Proportionality Rule  use of force must be proportional to the
force. (deadly force cannot be used to repel non-deadly force)
Imperfect self-defense  leads to mitigation to manslaughter
i. Ex. Deadly force against non-deadly attacker, slayer
provoked the violent encounter but all other elements of
self-defense are present.
Common Law defense of 3rd person =
- One can use deadly force in defense of another – parallels right of self
defense that the other would have.
o MAJORITY RULE: person doing killing can use defense if acts on a
mistaken, but reasonable belief .
o MINORITY RULE: if persons defending doesn’t have right of selfdefense, defender doesn’t either. Doesn’t matter if reasonable mistake.
Common Law defense of habitation =
- Right to use deadly force to repel home invasion if you reasonably believe
they are using violent force to enter dwelling.
o Focus is on the TIME of use of deadly force.
o Jurisdictions differ on this rule:
 Repel intruder vs. repel the intruder intending to harm the
occupants.
 Once intruder is inside  apply regular self-defense rules
CL  focus is on immanency
MPC  focus is on necessity
NECESSITY
Look at it as a crime we WANT people to commit.
CL:
Necessity may be raised if D’s actions, although violative of the law, were
necessary to prevent an even greater harm from occurring.
o 1. Act charged must be done to prevent a significant evil.
o 2. Must be no adequate alternative.
o 3. Harm caused must not have been disproportionate to the harm
avoided.
MPC: 3.02
- Limits on necessity:
o 1. Actor must actually believe that his conduct is necessary to avoid an
evil.
o 2. Necessity must arise from an attempt by the actor to avoid an evil
or harm that is greater than the evil or harm sought to be avoided by
the law defining the offense charged.
o 3. Balancing of evils is an issue to be decided at trial.
o 4. Legislature can enact balancing of evil principles that need to be
followed.
o 5. Recklessness or negligence in bringing about the event requiring
the choice of evils may be basis for conviction.
 From Dobbs pg. 545
-
Common Law
Person is justified in violating a criminal law if:
(1) faced with clear and imminent danger from a
natural physical force
(2) action must directly avert the harm
(3) The harm caused must not have been
disproportionate to the harm avoided.
(4) no legislative intent to penalize the conduct
under the specific circumstances
(5) did not wrongfully place himself in situation
(6)There is no adequate alternative
Model Penal Code 3.02
3.02(1) - Otherwise unlawful conduct is justified
if:
(a) the harm to be avoided is greater than that
sought to be prevented by the law defining
offense
(b) neither the Code nor other law provides
exceptions or defenses
(c) no legislative intent to exclude the conduct in
such circumstances
3.02 (2) - If actor was reckless or negligent in
bringing about the situation then no defense
No defense to homicide
Defense to homicide (if more lives
saved/mountain climber where 2 would die cut
rope, 1 dies)
****difference between duress (human force) and necessity (natural force):
 duress negates the mens rea for the crime and necessity has no actus reus.
 necessity: D’s free will is exercised, not overcome by an outside force.
DURESS:
Common Law
Person may be acquitted of any offense except
murder if criminal act was committed under
following circumstances:
(1) an immediate threat of death or serious bodily
injury (can be to family member or perhaps
others)
(2) a well-grounded fear that the threat will be
carried out
(3) no reasonable opportunity to escape except
compliance w/ demands
(4) D was not at fault in exposing herself to threat
(5) coercive agent is human
*Duress considered as an EXCUSE
*Cannot claim duress for murder or other
intentional killings
Model Penal Code 2.09
2.09 - Duress is affirmative defense to unlawful,
including murder, conduct by D if:
(1) he was compelled to commit the offense by
use or threat of use of unlawful force by coercer
against his or another person; AND a person of
reasonable firmness in his situation would have
been unable to resist the coercion.
2.09 – Defense NOT available if:
(2) Actor recklessly placed himself in situation in
which it was probable he’d be subjected to duress
or negligently placed himself in situation which
when negligence would suffice to establish
culpability
(3) woman acted under command of her husband,
unless she acted under coercion.
****difference between duress (human force) and necessity (natural force):
 duress negates the mens rea for the crime and necessity has no actus reus.
 necessity: D’s free will is exercised, not overcome by an outside force.
 duress: D did not exercise free will because he was overcome by an outside
human force.
CL  Elements of duress
1. An immediate threat of death or serious bodily injury
2. A well-grounded fear that the threat will be carried out
3. No reasonable opportunity to escape the threatened harm
INSANITY
Why excuse the insane? (EXCUSE DEFENSE)
- Recognition of moral sense in the law
- None of the 3 purposes of criminal law is satisfied when the truly
irresponsible are punished.
o 3 Purposes of Criminal Law:
 1. Rehabilitation
 2. Deterrence
 3. Retribution
McNaughten Rule: USED BY 28 STATES
- To establish insanity defense, it must be clearly proved that at the time of
committing the act, the party accused was laboring under such a defect of
reason, from diseases of the mind, as not to know the nature and quality of
what he was doing, or if he did know it, that he did not know it was wrong.
o Problems:
 Isolates knowledge of right and wrong as only measure of
insanity
 Requires total incapacity
 Moral, not scientific judgments  restricts expert testimony
MPC Rule: USED BY 15 STATES
Product Test:
- Designed to facilitate full and complete expert testimony and to permit the
jury to consider all relevant info, rather than restrict its inquiry to data
relating to a sole symptom or manifestation of mental illness.
o Problems:
 Undefined concept of “productivity”
 Expert testimony usurps just function
Common Law
M’Naughten/Cognitive Test: Majority Rule
(Because of Hinkley assassination attempt on
Regan)
(1) if he was laboring under such defect of
reason, from disease of the mind, that he (2)
didn’t know the nature and quality of the act he
was doing; or (3) if he did know it, he did not
know that what he was doing was wrong
Know: can be insane if lacks emotional
understanding of wrongfulness of his conduct
Model Penal Code 4.01
- A person is not responsible for criminal conduct
if at the time of such conduct as a result of mental
disease or defect he lacks substantial capacity
either to appreciate the criminality
[wrongfulness] of his conduct  COGNITIVE
PRONG
- or to conform his conduct to the requirements of
law  VOLITIONAL PRONG
(2) As used in this Article, the terms “mental
disease or defect” do not include an abnormality
Nature and quality of the act: knowledge of the
physical or moral consequences
Knowledge that the act is wrong: whether D's
own belief that conduct is morally acceptable
meets the M'Naghten test
Usually if D knows his conduct to be
wrong and where he has an emotional
understanding that it violates another's rights, his
belief that the act is morally acceptable would
satisfy M'Naghten test
Whether as to the act charged D was able
to distinguish right from wrong
Irresistible Impulse/Volitional Test: JD may
include if (1) he acted from an irresistible and
uncontrollable impulse; (2) he was unable to
choose between the right and wrong behavior; (3)
his will was destroyed such that his actions were
beyond his control
manifested only by repeated criminal or
otherwise antisocial conduct
DIMINISHED CAPACITY
FAILURE OF PROOF DEFENSE
Allows D to introduce evidence of mental abnormality at trial:
- 1. Either to negate a mental element of the crime charged, thereby
exonerating D of that charged, OR
o “I did not commit the crime because I did not possess the requisite
mental state”
- 2. To reduce the degree of the crime for which D may be convicted, even if D’s
conduct satisfied all the formal elements of a higher offense.
o “I am not fully responsible for the crime proven against me because of
a mental abnormality”
 1 = mens rea variant (MAJORITY APPROACH)
 2 = partial responsibility variant
o
MPC 4.01
- Common Law
Mens Rea Defense: evidence of mental
- (1) A person is not responsible for
abnormality used to negate mens rea element of
criminal conduct if at the time of such
crime; failure-of-proof defense (Mens rea variant)
conduct at the time of such conduct as a
result of mental disease or defect he lacks
Partial Responsibility Defense: partially
substantial capacity either to appreciate
excuses or mitigates defendant’s guilt even with
the criminality {wrongfulness} of his
requisite mens rea; only few states and only to
conduct  COGNITIVE PRONG
mitigate murder to manslaughter
- or to confirm his conduct to the
requirements of the law. 
VOLITIONAL PRONG
- (2) As used in this Article, the terms
“mental disease” or “defect” do not
include an abnormality manifested only
be repeated criminal or otherwise
antisocial conduct.
INTOXICATION
1. Voluntary intoxication
2. Involuntary intoxication
a. Coerced  narrowly construed
b. Pathological  grossly excessive in degree, given amount of
intoxicant, to which the actor didn’t know he was susceptible.
c. By innocent mistake  mistake about character of substance taken
d. Unexpected intoxication by ingestion of medically prescribed drug.
i. EXCULPATES BY:
1. If, as a result of the condition, he does not form the
mens rea for the offense  does not form the specific
intent of the offense.
2. Involuntary intoxication renders the person
“temporarily insane” to be determined by that
jurisdiction’s definition of insanity.
MPC 2.08
(1)  Intoxication is NOT a defense unless it negates an element of the offense.
(2)  When recklessness establishes an element of the offense, if the actor, due
to self-induced intoxication, is unaware of a risk of which he would have been
aware had he been sober, such unawareness is immaterial.
(3)  Intoxication ≠ mental disease
(4)  Intoxication that is NOT self-induced OR is pathological is an affirmative
defense if by reason of such intoxication, the actor lacks substantial capacity
either to appreciate its criminality or to conform his conduct to the
requirements of the law.
a. Pathological intoxication = grossly excessive intoxication, given the
amount of the intoxicant, to which the actor does not know he is
susceptible.
Common Law
Model Penal Code 2.08
Voluntary Intoxication:
does NOT excuse criminal conduct by itself; may
negate necessary state of mind for specificintent crimes only; some jurisdictions allow
defense of “settled insanity” from long-term use
of drugs or alcohol
(1)Any form of intoxication is a defense to
criminal conduct if it negates an element of the
offense;
(2) person acts recklessly if, as result
of self-induced intoxication, he was not conscious
of risk of which he would have been aware had
he not been intoxicated, such unawareness is
immaterial
*Not defense to negligent mens rea
(4) Pathological and involuntary intoxication are
Involuntary Intoxication:
results from (1) coerced intoxication, (2)
intoxication by innocent mistake as to nature of
substance, (3) unexpected intoxication from
prescribed medication, (4) pathological
intoxication; allows defense of temporary
insanity; can also negate necessary state of mind
Defense to any crime
affirmative defenses if the intoxication causes the
defendant to suffer from a mental condition
comparable to that which constitutes insanity
Pathological response (MPC 2.08-5c): D
knowingly takes a relatively small amount of
intoxicant, but b/c of abnormal sensitivity that he
was unaware of, his reaction is much more severe
than it would be for a normal person.
INFANCY
Common Law
Under 7: no criminal capacity
7-14: rebuttable presumption of no criminal
capacity, need malice, awareness of wrongfulness
of wrongfulness of conduct
Over 14: treated the same as adults w/criminal
capacity
Determines: Whether trying in family court or as
adult in criminal court
Model Penal Code 4.10
Under 16: family court – not tried or convicted of
an offense – juvenile court has exclusive
jurisdiction over you.
16-17: discretionary determination by family
court judge/ juvenile court judge
In Re Devon T  ct looked at fact that he was 13
and 10 months to determine that infancy wouldn’t
be available to him.
**disagreement over whether it’s an EXCUSE defense or a FAILURE OF PROOF
defense.
INCHOATE CRIMES
Inchoate = just begun and so not fully formed or developed; rudimentary
Major functions of inchoate penal law:
1. When a person is seriously dedicated to commission of a crime, a firm
legal basis is needed for the intervention of the agencies of law
enforcement to prevent its consummation
2. Conduct designed to cause or culminate in the commission of a crime
obviously indicates that the actor is dispose toward such activity, not
alone on this occasion, but on others.
3. When an actor’s failure to commit the substantive offense is due to a
fortuity, as when a bullet misses, his exculpation on that ground
would involve an inequality of treatment would shock the common
sense of justice – wouldn’t serve proper goals of penal law.
WITHDRAWAL/MERGER
Common Law
Withdrawal: Not a defense
Exception: if withdrawal from conspiracy still
guilty of conspiracy but not liability for their
crimes after withdrawl
Model Penal Code
Withdrawal: allowed but only if voluntarily and
completely withdrawal. Renunciation must be
due to change of heart and not worried about
being caught or wouldn’t work
Merger: Lesser included offenses: (crime that
necessarily includes all the elements of a greater
crime-larceny v robbery) will merge with the
greater offense-can’t be charged w/larceny and
robbery
Inchoate Offenses:
Solicitation and attempt merge
Attempt and completed crime merge
Conspiracy does not merge
Solicitation and conspiracy merge
Merger: Generally merges 1.07 1b
ATTEMPT
Dealing with the preparation/perpetration dynamic
Common Law
Defendant must:
(1) commit an overt act which goes beyond
mere preparation -- constitute a substantial
step
(2) Mens Rea: have dual intent
a. intent to perform the actus reus
b. specific intent to commit the target
offense (underlying offense)
(Only for the specific intent to kill satisfies the
mens rea element for attempted murder)
Punished as same offense, but less grade
Last Act Test: attempt occurs at least by the
time of the last act – actor must have done the
very last act before he would have actually
committed the crime.
Physical Proximity Test: defendant’s conduct
need not reach last act, but must be “proximate”
or close to completed crime
Abnormal step test: whether there was a step
towards the crime that the average citizen would
deem too far.
Indispensable Element Test: attempt occurs
when defendant has obtained control of
indispensable feature of criminal plan
Probable Desistance Test: attempt occurs when
defendant reaches point where unlikely he would
voluntarily desist from effort to commit crime
Unequivocality (Res Ipsa Loquitor) Test:
attempt occurs when person’s conduct, standing
alone, unambiguously manifests his criminal
intent
Dangerously Close Test: conduct that gets
dangerously close to committing the crime.
Obtaining illegal items to commit crime not
enough. Under CL if D, V and means are not all
present at the same time then not dangerously
close, also look at the severity of the harm
Abandonment: generally is NOT a defense -not a defense when motivated by difficulty,
Model Penal Code 5.01
5.01(1) When acting w/ culpability otherwise
req’d for commission of crime he:
(a) Purposefully engages in conduct that
would constitute the crime if the attendant
circumstances were as he believes them to
be
(b) purpose to commit target offense
(c) Act or omission constitutes a substantial
step in a course of conduct which would
culminate in the actor’s commission of
the crime
*can be convicted of criminal attempt even
when crime is not committed or attempted by
another if
5.01 (2) Substantial Step Test
(a) lying in wait
(b) entincing/seeking to entice victim
(c) reconnoitering contemplated scene of crime
(d) unlawful entry into structure in which crime
will be committed
(e) possession of materials to commit offense if
specially designed for criminal purpose
(f) possession, collection or fabrication of
materials (g) soliciting an innocent agent
Attempts are punished like the completed
offense subject to mitigation at 5.05(2)
Substantial Step Test: D must have performed
an act which strongly corroborates his criminal
purpose, beyond mere preparation
Abandonment 5.01 (4): not guilty of attempt
when (1) abandons effort to commit crime or
absence of essential instrumentality, likelihood of
arrest, postponement, etc.
Full renunciation of criminal purpose - a defense
only when voluntary and complete
prevents it from happening, and (2) conduct
manifests complete and voluntary renunciation of
criminal purpose; same caveats as common law
Have to have a “true change of heart”
- Complete – not motivated by a desire to
commit the crime at a better time or place
- Voluntary – not being motivated by changed
circumstances that increase chance of being
caught
DEFENSES TO INCHOATE CRIMES:
IMPOSSIBILITY DOCTRINE:
- Because of D’s mistake of fact or law, his actions could not possibly have
resulted in the commission of the substantive crime underlying the attempt
charge.
o Still may be evidence of D’s criminal intent BUT cannot be prosecuted
for completed offense because proof of at least 1 element cannot be
derived from his objective actions.
 Factual Impossibility  exists when D’s intended end
constitutes a crime but he fails to consummate it because of a
factual circumstance unknown to him or beyond his control.
 Have specific intent to commit the crime
 Have moral culpability
 Have mistake of fact unknown to the actor or out of her
control
 Fails to consummate it
o Ex. Tries to pick someone’s pocket, but they have
no money (not a defense)
 Legal Impossibility 
 Pure = exists if the criminal law does not prohibit D’s
conduct or the result that he sought to achieve.
o Bars attempt convictions!
 Hybrid = exists if D’s goal was illegal, but commission of
the offense was impossible due to a factual mistake by
her regarding the legal status of some factor relevant to
her conduct. (treated as factual and thus is no defense)
o Abolished by most J’s
o Ex. Thinks baby powder is cocaine and snorts it.
(defense, but almost never happens)
Common Law 
- factual impossibility ≠ defense
-
legal impossibility = defense
MPC 
- factual impossibility ≠ defense
- legal impossibility MAY be a defense
Why do we punish factual impossibility?  D is still morally culpable.
Why don’t we punish pure legal impossibility?  Can’t convict people for
attempting to engage in non-illegal conduct, not practical even if they are morally
culpable because they are trying to commit a crime that’s not a crime.
SOLICITATION
-
Offense of solicitation merges into the crime solicited if the latter offense is
committed or attempted by the solicited party.
MENS REA:
- Solicitation is a SPECIFIC INTENT CRIME:
o Actor must solicit other person with the specific intent that the other
actually commits the crime.
ACTUS REUS:
- Complete upon your asking, enticing, inducing, or counseling of another to
commit the crime.
o Typically, asking someone for help to commit a crime is NOT
solicitation.
Common Law
Model Penal Code 5.02 & 5.04-.05
(1) Person invites, requests, commands, hires, or
encourages another to commit a particular
offense; (no additional step req’d)
(2) Must commit intentionally and with purpose
that target crime be committed
5.02 (1) - Person is guilty of solicitation if (1) his
purpose is to promote or facilitate the
commission of a substantive offense, and (2) he
commands, encourages, or requests another
person to engage in conduct that would constitute
the crime, an attempt to commit it, or would
establish the other person’s complicity in its
commission or attempted commission
(2) Immaterial if actor fails to communicate with
person he solicits if conduct designed to effect
communication
 Specific intent crime
 Relationship between solicitor and
 Specific intent for person to commit the
crime
 Inchoate: completion not necessary
 Uncommunicated solicitation doesn’t
count
No solicitation occurs if solicitor intends to
commit substantive offense himself and merely
asks another for assistance
RENUNCIATION NOT USUALLY A DEFENSE
– must actually convince the person to not commit
the crime
solicited is immaterial
 Punished just the same as the underlying
offense - can be mitigated in some cases
 CAN be guilty if encouraging someone
who has already decided to commit the
crime.
5.02 (3) Renunciation of criminal purpose:
affirmative defense if:
(1) completely and voluntarily renounces his
criminal intent, and (2) either persuades the
solicited party not to commit the offense or
otherwise prevents him from committing the
crime
CONSPIRACY
When you see conspiracy  look for accomplice liability
COMMON LAW:
 Mutual agreement or understanding, express or implied, between 2 or more
people to commit a criminal act or to accomplish a legal act by unlawful means.
- ACTUS REUS:
o Crime is complete upon the formation of AGREEMENT.
 Some J’s require an overt act in furtherance of the agreement
- MENS REA: Specific Intent required
o 1. Intent to combine with others AND
o 2. Intent to accomplish the legal objective.
- DOES NOT MERGE WITH UNDERLYING OFFENSE
MPC: (rejects Pinkerton liability  people might still be guilty of those acts, but
convict them through accomplice liability, not conspiracy)
- 1.07(1)(b) = merger rule for conspiracy
Procedural Issues with Conspiracy:
1. Hearsay  Statements are made by co-conspirators can get into evidence
by establishing conspiracy on a prima facie basis.
2. Joint Trials  Conspiracy charges can’t be severed.
a. Get’s D’s to dirty each other at trial.
3. Venue  Constitution requires that criminal cases be held in the
jurisdiction where the crime is committed.
a. Conspiracy can be prosecuted where the conspiracy was formed
OR anywhere that an act in furtherance of that conspiracy
occurred. (P’s can forum shop).
4. Very Serious Criminal Liability  Pinkerton Rule
a. An actor is liable for the acts of a co-conspirator when:
i. 1. The act is in the scope of the conspiracy OR
ii. 2. The act is in furtherance of the conspiracy OR
iii. 3. The act is a reasonably foreseeable consequence of the
conspiracy.
Circumstances relevant to proving conspiracy:
1. Association with alleged conspirators
2. Knowledge of the commission of the crime
3. Presence at the scene of the crime
4. Participation in the object of the crime
Common Law
1. A mutual agreement or understanding which
is express or implied
2. Between two or more persons
3. Commit a criminal act or a series of criminal
acts (or to accomplish a legal act by illegal
means)
Agreement can exist even if not all parties have
knowledge of every detail, as long as each knows
of essential nature; enough that each person
agrees, at a minimum, to commit or facilitate
some of the acts (no need to commit or facilitate
each and every part)
Mens Rea (Specific Intent): two or more
persons must both (1) intend to agree, and (2)
intend that purpose of agreement be achieved
Knowledge alone is not ENOUGH
Overt Act: overt act NOT required (majority)
Overt Act JD: not all members need know about
the act (overt act can be a legal act)
Plurality Requirement: Bilateral requires proof
that at least two persons possessed the mens rea;
no conspiracy if one of two is feigning agreement
or lacks mental capacity to form agreement
(although some jurisdictions allow unilateral
agreement)
Parties to a Conspiracy: each party is liable for
every offense committed by every other
conspirator in furtherance of the unlawful
agreement (i.e., within scope of agreement); each
person need only know of general scope and
objective of criminal enterprise
Relationship to Target Offense: a conspiracy to
commit a felony is punished LESS SEVERELY
than the target offense
Merger: offense and conspiracy DO NOT
Model Penal Code 5.03-.04
Person is guilty of conspiracy if he agrees to (1)
commit an offense, (2) attempt to commit an
offense, (3) solicit another to commit an offense,
or (4) aid another conspirator in the planning or
commission of the offense
** have to agree to the conspiracy – knowledge is
not enough
Mens Rea: agreement must be made with the
purpose of promoting or facilitating the
commission of the substantive offense
Overt Act 5.03 (5) Requires an overt act for a
less serious offense if it is not first or second
degree
Plurality Requirement: unilateral agreements
sufficient –a person is guilty of conspiracy with
another person if he agrees with such other
person to commit an offense
 If one pretends to go along still
conspiracy
Parties to a Conspiracy: if a person knows that a
person with whom he conspires to commit a
crime has conspired with another person(s) to
commit the same crime, he is guilty of conspiring
with the other(s), whether he knows their identity,
to commit such crime
Relationship to Target Offense: conspiracy to
commit any crime other than a felony of the first
degree is punished at SAME LEVEL as target
offense
Merger: MERGES conspiracy with the object
offense, unless involved commission of
additional offenses not yet committed or
attempted
MERGE
Abandonment: conspiracy complete the moment
the agreement is formed; Some JD: abandonment
may avoid liability for subsequent crimes if
communicated to each co-conspirator
Wharton’s Rule: see Iannelli below
Abandonment 5.03 (6): conspirator must thwart
the success of the conspiracy under
circumstances demonstrating a complete and
voluntary renunciation of criminal intent
Wharton’s Rule: not recognized
Pinkerton Rule: not recognized
Conspiracy to commit murder requires finding of intent to kill and can't be based
on theory of implied malice.
- Implied malice murder: requires intent to do some act, the natural
consequences of which are dangerous to human life but no required intent
that result is death
Intent to further the criminal enterprise: can be proved by direct or
circumstantial evidence
- Direct: advice from supplier of legal goods or services on their illegal
purpose
- Circumstantial: sale itself and its surrounding circumstances to show
express or tacit agreement to join conspiracy
Intent inferred from knowledge (usually for supplier’s in conspiracies)
 Inflated charges-Supplier has acquired a stake: raise rent on room used by
prostitute
 No legitimate use for the goods or services exists: supplier of horse racing
info by wire -conspiracy to promote booking
 Volume of business is grossly disproportionate to any legitimate demand, or
sales for illegal use amount to high % of total business
 Serious nature of illegal use itself
 Nature of the good
 Secretive practice
-
-
“Wheel” conspiracies – hub and spokes
o Spokes have no contact with each other but all do something
separately to forward the conspiracy
o Harder to prove the existence of a conspiracy because hard to show
an agreement
“Chain” conspiracies – each link is important to the success of the conspiracy
Start low and work their way up offering deals to move higher up on the chain.
Wharton’s Rule [Ianelli v. United States (1975)]
o When the crime requires the participation of two persons, then the crimes
cannot be punished separately (can’t tack on Conspiracy to the crime)
 Classic examples of crimes: adultery, incest, bigamy, dueling
 The rationale for this rule is that the dangerousness of conspiracy and the
social harm is not associated with these crimes
 When the conspiracy involves more people than are necessary for the
offense, then the Wharton’s Rule doesn’t apply and the crimes can be charged
separately
 In jurisdictions that use Wharton’s Rule – only apply it when the underlying
offense has been completed
ACCOMPLICE LIABILITY
When you see accomplice liability  look for conspiracy
***focus is on ASSISTANCE!
TYPES:
-
-
Principle in the 1st degree  one who actually commits a crime by his own
hand, an inanimate agent, or an innocent human agent.
Principle in the 2nd degree  guilty of felony by reason of having aided,
counseled, commended, encouraged the commission while present
Accessory before the fact  guilty of felony by reason of having aided,
counseled, commended, encouraged without having been present at moment
of perpetration.
Accessory after the fact  one who, with knowledge of the other’s guilt,
renders assistance to a felon in the effort to hinder arrest, trial, or
punishment.
o P in 1st, P in 2nd, and Accessory before the fact  treated the same
in punishment
o Accessory after the fact  punished differently
Common Law
Principal in the first degree: one who commits
a crime, either himself or through inanimate
agency or innocent human
Principal in the second degree: one who aids,
counsels, commands, or encourages commission
of felony in his presence – either actual or
constructive
Accessory before the fact: one who aids,
counsels, commands, or encourages commission
of felony without being present at moment of
perpetration
Accessory after the fact: one who, with
(1)knowledge of other’s guilt, renders assistance
to felon in effort to hinder his detection, arrest,
trial, or punishment (only category not liable for
acts of principal) ** seen as less serious offense
Attempt: if attempt but don't actually aid the
perpetrator directly or indirectly, then NO
ACTUS REUS - NO CRIME.
Presence is not sufficient unless acting as
lookout; no but-for causation required
Model Penal Code 2.06
2.06 (1) Principal: one who, acting with the
requisite mens rea, actually engages in the act or
omission that causes the crime, or acts through an
irresponsible or innocent agent to commit the
offense
2.06 (3) Accomplice: One is an accomplice if,
with the purpose of promoting or facilitating the
commission of the offense he:
i. Solicits such other person to commit it, or
ii. Aids or agrees or attempts to aid such other
person in planning or committing it, or
iii. Having a legal duty to prevent the
commission of the offense, fails to make
proper efforts to do so
Attempt: attempt to aid is enough-satisfies actus
reus, no causal connection between assistance
and crime required
Mens Rea (Dual Intent): accomplice must have:
1. Intent to assist; AND
2. Intent that crime be committed
(majority rule: intent = purpose)
Doesn’t matter how minimal, result can be
inevitable before assistance, mere knowledge not
enough
Recklessness & Negligence: accomplice liability
may attach in cases or crimes involving
recklessness or negligence
Natural & Probable Consequences: Liable for
the crime they assisted and natural probable
consequences thereof, even if not contemplated at
outset; “but-for” causation not necessary
Abandonment:
 Inform principal not to commit crime.
 Aided: take affirmative steps to prevent
crime from occurring --negate assistance
Aiding Attempts: Liable for attempt under
accomplice liability but need underlying crime
committed by the primary. If no completed or
attempted offense, then no liability.
NEED TO ACTUALLY AID TO GET TO
THEM.
Mens Rea (Dual Intent): accomplice liability
exists only if:
(1) intend to assists with the
(2) purpose of promoting or facilitating the
commission of the offense
Mere knowledge not enough
Recklessness & Negligence: accomplice liability
may attach when (1) accomplice in conduct that
caused result and (2) acted with culpability, if
any, regarding the result that is sufficient for
commission of the offense
Natural & Probable Consequences: not
recognized – only liable for the crimes you meant
to assist with
Abandonment: must terminate participation
before crime is committed and either (1)
neutralize his assistance, (2) give timely warning
to police of impending offense, or (3) attempt to
prevent commission of the crime
Aiding Attempts: ATTEMPTING TO AID IS
ENOUGH.
COMMON LAW
MENS REA  dual intent
-
Intend to assist AND intent that offense actually be committed
Most J’s require that accomplice have PURPOSE that crime be committed, not
just knowledge
Natural and Probable Consequence Doctrine: accomplice liable for the
crime in which she assisted AND other crimes that were a natural and
probable consequence of her complicity.
MPC
MENS REA  “purpose” requirement
- doesn’t recognized natural and probable consequence doctrine