CRIMES: GENERAL PRINCIPLES
Crime defined by elements:
(1) Actus Reus: specified form of conduct
(2) Mens Rea: committed w/a particular state of mind
(3) Attendant Circumstances: additional defining facts that may need to be proven
A. ACTUS REUS: a voluntary (conscious/volitional, not necessarily desirous)
criminal act, either an affirmative act of an omission.
Voluntary Act:
CL: not codified in most jurisdictions, but generally consistent w/MPC formulation
MPC §2.01
(1) No guilt unless liability based on conduct including a voluntary act or failure
to perform act of which D is capable (omission).
(2) NOT voluntary acts:
a. Reflex/convulsion
b. Bodily movement during involuntary unconsciousness or sleep (Newton)
c. Conduct under hypnosis (some juris have excluded)
d. Bodily movement otherwise not a product of effort/determination of
actor, either conscious or habitual
No defense:
1. “Irresistible impulse” due to temperament (Jacobs)
Defense:
1. Act forced by another, e.g. police (Martin)(“Schechter”), when ct determines
offense “presupposes” voluntariness. Where there are multiple elements, ct may
read voluntariness into one or all (e.g. voluntarily being drunk, voluntarily being in
public, or both). Can “roll back” act to which voluntariness is ascribed (e.g. drinking
late at bar, called out by police for beating wife).
 Note: (1) Defines what acts aren’t voluntary, not what are, (2) “include”
language implies perhaps not all acts causing liability must be voluntary, but
MPC gives no examples, (3) “include” also allows prosecutors to stretch
timing considerations (e.g. driver may not be responsible for injury-causing
crash due to unforeseen seizure, but choosing to get in the car knowing a
seizure was imminent is a voluntary act that could be criminal).
People v. Newton (CA 1970): D Huey P. Newton convicted of manslaughter, made
shots after being shot himself and in state of unconsciousness. Instructions should
be given in cases of “involuntary unconsciousness”; involuntary unconsciousness is
a COMPLETE defense.
Jacobs v. Commonwealth (PA 1888): Jacobs, man of “excitable” temperament, killed
another; physician willing to testify to temperament but not allowed. “Irresistible
impulses” due to temperament do not excuse liability like “insane impulses” that
“destroy free agency.”
Martin v. State (AL 1944): Martin convicted of public drunkenness when police
arrested him at home and took him onto a highway. When voluntary act is
presupposed (e.g. public drunkenness) cannot be est. when forcibly taken into
public by police to arrest. Ct. presupposing for statute (saying it implies
voluntariness). Changes if public presence not voluntary but required (e.g. brought
outside after row with wife). Courts can “roll back” act to which they apply
voluntariness req… circumstances, e.g. placing oneself in a position where future
acts will be compelled (being drunk at bar at closing time) help ct. make those
decisions.
1. Causation: few states define statutorily. Both CL and MPC use 2-step
actual/proximate cause determinations, but MPC “legal cause” reflects legal realism
(judges/juries must rely on intuitions in determining what’s not remote/accidental)
vs. CL emphasizes “objectively” evaluating foreseeability.
CL: D’s actions are a “cause” when:
(1) But-for (necessary to cause harmful result when it occurred); AND
(2) Proximate cause (“reasonably foreseeable”)
MPC §2.03
(1) D’s conduct cause of a result when:
a. It is an antecedent but for which result wouldn’t have occurred, AND
b. Relationship b/t conduct and result satisfies any additional causal
requirements imposed by code/law defining offense.
(2) Knowledge/purpose MR: not est. if actual result isn’t w/in purpose of the
actor UNLESS [legal cause]:
a. Actual harm differs from that designed only b/c diff person/prop injured
OR designed harm worse than that actually caused, OR
b. Actual result involves same kind of harm designed and isn’t too
remote/accidental in occurrence to have a just bearing on actor’s
liability/gravity of offense.
(3) Reckless/negligent MR: not est. if result isn’t w/in risk actor is aware of (or
should be aware of) UNLESS [legal cause]:
a. Actual harm differs from that probable only b/c diff person/prop injured
OR probable harm worse than that actually caused; OR
b. Actual result involves same kind of harm as probable result and isn’t too
remote/accidental in its occurrence to have a just bearing on actor’s
liability/gravity of offense.
“Foreseeability” cast differently, theories of punishment may inform choice:
1. “Appreciable probability” vs. “highly extraordinary result” (Acosta)
2. Criminal liability if conduct is “sufficiently direct cause” of harm (doesn’t
have to be exclusive cause), and “ultimate harm” is something that should’ve
been foreseen (Arzon, Kibbe)
3. If evidence does not establish foreseeability of “actual, immediate, triggering
cause,” no criminal culpability (Warner-Lambert).
 Note: Alicke suggests concept of “culpable causation” (social psychology):
determination of causation may in practice be made by subjective
determinations of culpability, e.g. juries will see causation differently for man
speeding home to hide drugs vs. to hide wife’s present.
 Acosta/Arzon/WL: doctrine is ambiguous/incomplete, can be argued both
ways in most cases.
People v. Acosta (CA 1991): Acosta charged w/ 3 counts 2nd degree murder after
leading police on chase for stolen car and 2 helicopters collided (pilot “carelessly
and recklessly” operated). Proximate cause: sine qua non test, “but for the
defendant’s act would the injury have occurred?” “Highly extraordinary result”
standard not met here; but for Acosta’s conduct helicopters wouldn’t have been in
position to crash, and given emotions of chase “appreciable probability” that a
pursuer may operate negligently/recklessly. Rev’d on other grounds (not suff
evidence of malice). DISSENT: Helicopters were not “within range of apprehension”
of criminal fleeing on ground, meets “highly extraordinary result” standard.
People v. Arzon (NY Sup. Ct. 1978): Arzon set fire to one level of abandoned building,
firefighter Martin Celic died responding to it but due to another arson fire set on
another floor. Crim liability if conduct was sufficiently direct cause of death and
ultimate harm is something which should have been foreseen as reasonably related
to his acts (foreseeable that firemen would respond, made them vulnerable to
independent force (2nd fire)). Relies on People v. Kibbe (NY 1974), drunk robbery
victim left in cold w/o glasses/clothes, hit by car, robbers liable (sufficiently direct
cause)).
People v. Warner-Lambert Co. (NY 1980): 6 workers died at gum plant after 2
machine explosion due, scientific debate about MS dust cause/oxygen liquifaction,
insurance inspectors had warned of dust danger but all changes hadn’t been
implemented. Here proof as to cause is speculative only/no proof sufficient that
defs. should have foreseen danger = no liability. Defs action must be “sufficiently
direct cause” of ensuing death for crim liability (higher standard than tort liability).
2. Intervening Act: “new intervening act” doctrine: act of another person may
“break the chain” of causation b/t D’s wrongful act and the forbidden result. Said to
have this effect when a “voluntary” act by the victim but not when product of
“irresponsibility” for which D deserves blame (D’s act remains the “cause”).
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 [some juris] (Hendrickson)
3. Victim condition: D’s act remains cause of injury even when it is aggravated
due to victim’s own physical/emotional conditions or religious beliefs (Blau)
MPC: Silent on intervening acts. Approach through “not too remote or accidental to
have a just bearing on the actor’s liability” language (is victim’s act too remote/
accidental?).
 Note: Another issue addressed by Alicke. Concepts of culpable control and
culpable causation at play; we choose to see D as having caused victim
“irresponsibility” or victim as having/lacking control because of preexisting
judgments as to their level of culpability. He says:
Volition: doctrine gets it backward, people intuitively know if they want to
convict and adjust view of volition accordingly.
Reasonable: more realistic, if people think victim is unreasonable, D gets let
off hook
MPC: most realistic, people intuit what is “just” and fit understanding of
causation to that.
Stephenson v. State (IN 1932): D Stephenson attacked and raped deceased victim
Madge Oberholtzer on train, then kept her in hotel room for a few days during
which Madge was allowed to buy a hat and bought some poison; died about a month
later of poison and complications from wound. D held guilty of 2nd degree murder
b/c he rendered the deceased mentally irresponsible as a natural/probable result of
his actions, question of “loss of volition”—Alicke would say we subjectively
determine this (culpable causation).
Hendrickson v. Commonwealth (KY 1887): after violent row with wife, D
Hendrickson threatened to kill wife, who left house and died in cold weather
outside. However, couple had history of fighting, wife was stronger than crippled
husband, and husband did not try to prevent re-entry into house. Jury should have
been given instruction that if “fear” compelling her to flee was not “wellgrounded/reasonable” accused shouldn’t be held responsible for “forcing” flight.
Again, subjective determination—her arg taken less seriously b/c she was a bad
wfe.
Regina v. Blaue (Engl. 1975): Jacolyn Woodhead stabbed after refusing sex to
unnamed D; died b/c she wouldn’t, as a Jehovah’s Witness, accept blood
transfusions at hospital for her wounds. Victim refusal to take action preventing
death from mortal wounds inflicted by D, as for religious reasons, does not break
causal connection between D act and forbidden result. Wrongdoer “takes his victim
as he finds him.”
3. Omissions: exception: when acting would endanger oneself
CL: law of most states summarized by MPC
MPC § 2.01
(1) D not guilty of offense unless liability is based on conduct which includes a
voluntary act of omission to perform an act of which he is physically capable
(3) No liability based on omission unless:
a. Omission expressly made sufficient by statute defining offense (e.g. taxes,
Good Samaritan law), OR
b. Duty to perform act otherwise imposed by law (via statute, status
relationship, contractual agreement, or voluntary assumption of care for another
such that other is dependent on D). (Beardsley, Jones, Pope)
Must be specific legal, not moral, duty. Didn’t count: unmarried lover (Beardsley),
unspecified-responsibility part-caretaker (Jones), assisting friend (Pope), omission
(misprision of felony) out of keeping w/contemporary mores (Pope).
Good Samaritan Statutes (a few juris, e.g. VT, RI, WI, MN). Almost never enforced,
meager penalties.
e.g. VT Stat. Ann. tit. 12:
D who knows another is exposed to grave physical harm shall, to extent same can be
rendered w/o danger to himself or w/o interference to important duties owed to
others, give reasonable assistance to the exposed person unless that assistance is
being provided by others.
 Note: most courts follow Benthamite approach and, when ambiguous, underpunish and allow legislatures to clarify rules afterward.
People v. Beardsley (MI 1907): Blanche Burns drank and slept with married D
Beardsley over a weekend at his home, then died after taking morphine pills at end
of weekend before wife’s return; D tried to prevent her from taking pills but failed
and was too drunk to help with her care. Criminal omission requires legal duty, not
moral one, including legal duty as “protector,” (no duty to Burns) and omission must
be immediate/direct cause of death; D did not owe protective duty to woman who
was not his wife. Depends on “special relationships” which are diff by jurisdiction,
so diff duties will be owed.
Jones v. United States (DC Cir. 1962): Malnourished baby died after living at home of
D Jones, factual contentions as to whether mother or Jones was responsible for
feeding baby, no jury instruction as to finding whether D Jones had “legal duty” to
baby. 4 ways omission can be breach of legal duty: (1) statute-imposed duty, (2)
status relationship-imposed, (3) contract-imposed, (4) one has voluntarily assumed
care of another and secluded them so others couldn’t render aid (here remanded to
give instruction).
Pope v. State (MD 1979): Joyce Pope found guilty of child abuse and misprision of
felony when she was helping insane mother, Melissa, care for child Demiko Lee
Norris, whom Melissa killed in a religious fit while Pope was present. They then
went to family’s house and church with dead baby and Pope did not report it. Under
MD statute, Pope’s omission constituted cruel/inhumane treatment, but she did not
satisfy one of the relationships where omission = breach of duty of care (parent,
adoptive parent, in loco parentis, or responsible for supervision of minor). May not
be held liable for failure to fulfill moral obligation if no legal obligation. Also, crime
of misprision of felony doesn’t exist in MD (no obligation to disclose) b/c out of
keeping with contemporary mores.
B. MENS REA
1. Mistake of Fact: ignorance/mistake of fact is a defense if it defeats proof of the
mental state element of the crime (legislatures don’t define well). About ½ of states
have adopted MPC mental states; federal system has not.
CL [less systematic, more value-laden]:
If MR Is Clear:
1. If MR is knowledge (”willful”), honest mistake of fact (even unreasonable) is
a defense (Tyco)
2. If MR is negligence, only honest and reasonable mistake of fact is a defense
3. If statute specifies SL, no mistake of fact defense.
If Statute Silent on MR/Unclear to Which Elements MR Applies:
Test:
1. 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
(read in knowledge). (Morissette)
2. If underlying act, had facts been as D imagined them to be, would’ve been a
bad act (malum in se), expand liability by applying MR requirement to fewer
elements (read in SL). (Prince, Stiffler, Jadowski)
a. Public Welfare Cases: where possession of dangerous instrument/
dangerous act puts one sufficiently on notice of creating danger to public
welfare that SL is appropriate regardless of intent, even in case of mistake
(Balint-drugs, Freed-grenade); SL applied b/c public policy concerns are
so strong. But in some cases, negligence rather than SL applies (Staplesgun, Liparota-food stamps).
b. Statutory rape: similarly, public policy concerns strong enough to impose
SL even in case of mistake (Stiffler, Jadowski)
3. Sometimes: negligence standard read in re: attendant circumstances,
allowing for “reasonable mistake of fact” defense (e.g. receipt of stolen
property in some juris). Applied for various institutional/theoretical reasons
by cts (over-punishing, chilling, notice, etc). (Staples, Liparota)
a. Public Welfare Offenses: sometimes ct allows for reasonable mistake of
fact if not sufficiently dangerous to be put on notice of threatening public
welfare (Morissette-casings, Staples-gun, Liparota-food stamps).
b. Statutory rape: minority of states moving toward negligence standard
rather than SL.
4. Jurisdictional vs. Material Elements: if mistake relates only to a jurisdictional
(not material) element, no mistake of fact defense (Feola). To determine if
element is material or merely jurisdictional, look to (1) language of statute,
(2) legislative history, (3) common sense/public policy.
MPC: [supplies clearer mental state terms and interpretive default rules]
MPC § 2.02 General Reqs. Of Culpability (p. 156)
1. Minimum Reqs of Culpability: Unless statute provides otherwise) person not
guilty of offense unless he acted purposely, knowingly, recklessly, or
negligently, as law may req, w/ respect to each material element of the
offense.
2. Kinds of Culpability Defined:
a. Purposely: (1) if element involves nature of his conduct or result thereof,
conscious object to engage in conduct or to cause such result, AND (2) if
there is element of attendant circumstances, he is aware of existence of
such circumstances or believes/hopes they exist.
b. Knowingly: (1) if element involves nature of conduct/attendant
circumstances, aware that conduct is of that nature/circumstances exist,
AND (2) if element involves result of conduct, he is aware that it’s
practically certain to result.
c. Recklessly: Reckless w/respect to any material element of an offense
when actor consciously disregards a substantial and unjustifiable risk
that the material element exists or will result from conduct. Risk must be
of such nature/degree that, considering nature/purpose of actor’s
conduct and circumstances known to him, its disregard involves gross
deviation from standard of conduct a law-abiding person would observe
in the actor’s situation.
d. Negligently: Negligent w/respect to a material element of an offense
when actor should be aware of substantial/unjustifiable risk that element
exists or will result from conduct. Risk must be of such nature/degree
that failure to perceive it, considering nature/purpose of actor’s conduct
and circumstances known to him, involves gross deviation from standard
of care reasonable person would observe in that situation.
3. “If silence, read in recklessness req”: must be purposely, knowingly, or
recklessly if not specified in law (Prince, public welfare cases-acquit)
4. “One for all” presumption: if ambiguous, culpability level has to apply to all
elements (Morissette-would acquit)
5. Higher-ups satisfy lesser elements: E.g. negligent if reckless proven etc.
6. Req of Purpose Satisfied if Purpose is Conditional
7. Req of Knowledge Satisfied by Knowledge of High Probability
8. Req of “Willfulness” Satisfied by Acting ”Knowingly”
9. Culpability as to Illegality of Conduct: knowledge/recklessness/negligence as
to legality of conduct not an element of the offense
10. Culpability as Determinant of Grade of Offense
MPC §2.04 Ignorance or Mistake
1. Defense if: (a) ignorance/mistake negatives purpose, knowledge, belief,
recklessness, or negligence req’d to est. a material element of offense, OR (b)
law provides that state of mind est. by such ignorance/mistake constitutes
defense.
Typical CL/MPC Equivalence:
Intentionally = MPC purposefully
Willfully = MPC knowingly
Maliciously = MPC recklessly
Negligently = MPC negligently
 Note: Prosecution burden includes mental state element. Jury should acquit
as long as possibility that the D was mistaken/ignorant prevents the jury
from concluding beyond a reasonable doubt that D formed the specified
mental state for the offense.
 SL reading may have a “chilling effect”: people less likely to engage in what
would be lawful behavior in fear it’s based on mistake (e.g. from Prince:
nobody eloping with younger-looking women lest they turn out to be under
16, even if it would be legal).
 Mistake of fact and child pornography: debate over whether statute required
proof that D (in U.S. v. X-citement Video, US 1994) had knowledge of only
“distribution” or also “depiction” of minors in videos. Cited Morissette,
presumption that scienter requirement should apply to all elements
criminalizing otherwise innocent conduct.
Morissette v. United States (US 1952): D Morissette took bomb casings from marked
government bombing range, thinking them abandoned, salvaged them for $84 as
scrap metal, indicted on “conversion of government property.” Improper
instruction on intent given, court determining that that no criminal intent req’d for
that crime. Omission from relevant statute of mention of intent will not be
construed as eliminating that element from the crimes denounced; not just question
of whether he took but whether he sought to wrongfully deprive another (govt).
MR: “knowingly”, AR: “converts”, AC: “thing of value of the US.” QP: should
“knowingly” apply to all elements, incl. AC (“thing of value”)?
Underlying act was good as D imagined, so ct. restricted liability by
applying “knowingly” to all elements, including “thing of value.”
Under MPC? Acquittal, 2.02(4) says “knowingly” would have to apply to all
elements, D didn’t “know” casings were thing of value of US.
Regina v. Prince (Engl. 1875): Prince “took” Annie Phillips, unmarried girl under 16,
from care of her father, thinking she was older. Legislature enacts law so anyone
doing wrong act does so at risk of girl turning out to be under 16 (assumptions
being wrong); act is wrong in itself regardless of mistake b/c involves taking girl
w/o father’s permission. Broad liability (narrow MR application) b/c it’s a “bad act.”
DISSENT: There can be no crime in absence of criminal mind; mistake of facts based
on reasonable grounds make actor not guilty.
MR: statute is silent, AR: taking unmarried girl from parents, AC: (1)
unmarried, (2) age of girl, (3) lack of consent of (4) possessing parents.
Underlying act was bad even as D imagined in taking w/o father’s
permission, so ct. expanded liability by reading in SL.
 Under MPC? Silence = recklessness, jury would have to decide whether
act “consciously disregarded” risk re: age. Probably acquittal.
United States v. Feola (US 1975): Issue was whether knowledge that intended victim
is a federal officer is req for crime of conspiracy to commit offense of assault upon
an officer while engaged in performance of official duties. Undercover officers were
assaulted when narcotics rip-off deal went awry; Ds didn’t realize they were federal
officers until then. D argues that although no scienter req for substantive charge
(assault on fed officer), conspiracy to assault fed officer reqs knowledge of fed
officer identity. Offender takes victim as he finds him (turns out to be officer); no
statutorily-unexpressed req that assailant realize his victim is fed officer; other
interpretation would give insufficient protection to undercover officers. Statute
intended to federalize assault on federal officers not create a new material element;
mistake of fact not relevant for jurisdictional element, only for material elements.
DISSENT: If assailant doesn’t know identity, no deterrent advantage to
enhanced punishment, makes no sense to regard unknowing assault as more
reprehensible than assault of private citizen, aggravated penalty only makes sense if
assailant knew victim had some special status or function. Punishing
knowing/unknowing assault equally is unfair.
State v. Stiffler (ID Ct. App. 1988): D Stiffler pled guilty to statutory rape, argues it’s
unconstitutional to impose criminal liability where reasonable mistake of fact
disproves criminal intent. (1)Effect of mistake on criminal intent left to states, (2)
where intent is not statutory element of offense (strict liability, as here, with
statutory rape), lack of intent is immaterial, (3) legislature is proper forum for
changing intent element, (4) mistake may mitigate sentence, not guilt. Public policy
declares minors cannot consent, so this is strict liability.
DISSENT: Issue of statutory construction, ID code says all crimes involve
issues of act + intent/negligence, no exception for rape. (1) Reasonable mistake of
fact as to woman’s age may disprove criminal intent, shouldn’t be strict liability, (2)
“reasonability” of mistake (negligence standard) should be jury issue.
 Knowledge req would disincentivize finding age, so strict liability
imposed, chilling effect but ct doesn’t care. This is majority jurisdictions’ rule
State v. Jadowski (WI 2004): 15-yr-old victim fraudulently induced 35-yr-old D to
think she was over 16 (age of consent) using fake ID. (1) Statute incl. no language
about intent--strict liability crime. Public policy concerns in protecting minors and
law enforcement difficulties outweigh heavy punishments (which might suggest leg
did not intend for strict liability). D argues statute is unconstitutionally vague and
chills his ability to exercise ability to have sex with legal but young-looking women,
ct says (2) strict liability is deemed sufficient notice and (3) there may be legal
liability w/o moral liability.
United States v. Balint (US 1922): Ds violated Narcotics Act, selling drugs (w/o
reporting to IRS) they allegedly didn’t know to be drugs, argued there’s no liability if
they didn’t know product to be drugs. Statute silent on mens rea. Issue of
legislative intent, Policy of law may, to ensure proper care, req punishment of
negligent person even if ignorant of noxious character of what they sell. Legislative
intent = injustice of exposing innocent purchaser to drug > injustice of punishing
innocent seller.
Staples v. United States (US 1994): Nat’l Firearms Act made it unlawful to possess
unregistered machinegun, D did so but argued he did not know gun he possessed
had characteristics of machinegun. D owned AR-15, which is semiautomatic unless
modified, and D’s was modified. Statute silent on mens rea, and cts must rely on (1)
nature of statute and (2) character of items regulated to determine how to interpret
silence. In US v. Freed, grenades determined to be strict liability, but in US v.
Liparota decided D had to know possession of food stamps was unauthorized. Ct.
puts guns with food stamps. Tradition of widespread gun ownership and lack of
inherent dangerousness means owners are not put on automatic notice of likelihood
to be regulated (so should require mens rea). Also, lack of req would over-ease
prosecution’s “path to conviction” and make punishment excessive for relatively
innocuous crime.
DISSENT: Nature/character of gun IS sufficient to put owner on notice of
possibility of regulation, possibility of injustice worth safety standards.
2. Mistake of Law
CL: Ignorance or mistake of law NOT exculpatory unless based on:
1. Law itself requires knowledge of the law (e.g. tax code, incentivizes learning
law and using loopholes positively)
2. Mistake of collateral law (relates to AC) that is honest and reasonable
(universal negligence standard) (Long). Not met if D’s misunderstanding is
unreasonable (Marrero) or D is uninformed for failure to investigate law
(King).
3. Reliance on official empowered to interpret law (Albertini, Cox)
MPC: D must satisfy MR requirement of statute. If mistake of law negatives MR, it’s a
defense [generally more forgiving than CL]. Based on:
MPC § 2.02 General Reqs of Culpability
(9) Culpability as to Illegality of Conduct: Knowledge/recklessness/
negligence re: what constitutes an offense or re: existence/meaning of law
determining elements of offense is NOT an element of that offense, unless code so
provides.
MPC § 2.04 Ignorance or Mistake:
(1) Ignorance or mistake re: law is a defense if:
a. Ignorance/mistake negatives purpose/knowledge/belief/
recklessness/negligence req’d to establish material element of offense OR
b. Law provides that ignorance/mistake constitutes defense.
(2) Defense of ignorance/mistake not available if D would be guilty of another
offense had the situation been as he supposed. But ignorance or mistake will
then reduce grade of offense of which he may be convicted to those of the
offense which he would be guilty of if situation were as he supposed.
(3) A belief that conduct does not legally constitute an offense is a defense if:
(a) statute not known b/c not published/available prior to the conduct, OR
(b) D acts in reasonable reliance upon an official statement of law afterward
determined to be erroneous contained in (i) statute, (ii) judicial decision,
(iii) administrative order, (iv) official interpretation of the public
officer/body charged by law w/ responsibility for interpretation,
administration, or enforcement of law [BROAD].
(4) D must prove a defense arising under (3) by a preponderance of evidence
Long v. State (DE 1949): D prosecuted under bigamy statute when he re-married
after getting divorce in AR that was improperly served (and therefore invalid) in re:
1st wife in DE. D had consulted a lawyer who informed him AR divorce was “good”
and he was free to re-marry. Different types of ignorance: (1) unawareness that
type of act might be crime, (2) concluding in good faith (but mistakenly) that one’s
particular act is not a crime, (3) along with #2, making a bona fide effort to ascertain
and abide by law (but still making mistaken criminal act). Here, D’s action followed
bona fide effort to ascertain law following legal advice (#3), defense applies.
Concern of injustice > deterrence here. Burden of proof of efforts falls to D and
there may remain civil costs even if criminal charge averted by mistake of law.
D was confused about collateral law of marriage (civil), not penal law of bigamy, so
mistake of law defense exists. Collateral law rather than “empowered official”
mistake b/c simply consulting attorney does not constitute “official” interpretation.
People v. Marrero (NY 1987): D was a federal corrections officer, believed in
misreading statute that he was allowed to carry a weapon w/ legal impunity.
Mistake wasn’t about penal law re: gun possession, but about collateral law of
whether corrections officers qualified as peace officers. Reading of law was
unreasonable (no defense to “misconstrue” meaning of statute, only to rely on
statute and then find to be erroneous), so liability regardless of intent. (Policy
reasons, deny “diversionary stratagems”)
DISSENT: If D hasn’t knowingly committed a wrong, no reason to enact
retribution. Given modern profusion of legislation, unfair to require every person to
fully understand law.
Critic suggests negligence standard would be better than strict liability in
mistake of law, value of learning law will be higher when law excuses reasonable
mistake than when it doesn’t.
State v. King (MN 1977): D charged with possession of phentermine one day after
phentermine was added to list of controlled substances by State Board of Pharmacy
(effective date in statute amendment was a few months later). D contends (1)
pharmacy board lacks authority to designate controlled substances, (2) lack of
notice phentermine would be crime. (1) Pharmacy board had statutory authority to
designate controlled substances, (2) Phentermine was legally included as controlled
substance at time of possession, even if not yet incl. in statute wording—D’s
responsibility to investigate before possessing.
DISSENT: Unrealistic to expect public to make such an extensive inquiry
into development of law.
 Note: authority to determine inclusions often delegated to agencies;
assumption that regulated parties will make substantial efforts to learn law is built
into structure of controlled substances legislation.
United States v. Albertini (9th Cir 1987): D Albertini appealed his convictions for
entering military bases without permission (having been barred from them after
distributing political leaflets). Trial ct convicted, cir ct reversed (holding that base
was a public forum during an open house, could not exclude even someone who had
been barred), and Supreme Ct reversed again (saying military base not a public
forum and even if it were bar letter still provided reasonable basis for exclusion).
However, D Albertini was arrested again between the cir ct and SC decisions when
he thought leafleting was ok. Albertini acted during a window of time when he
reasonably believed his acts were protected under App Ct decision; defense of
mistake of law when it results from D’s reliance on official (but mistaken/later
overruled) interpretation of law by an official. To hold otherwise would be an
“entrapment” by the government.
Cox v. Louisiana (US 1965): D Cox was convicted of leading a civil rights
demonstration in violation of statute prohibiting interfering with justice by
picketing “near” courthouse. SC held that wording of statute requires on-the-spot
advising by officials as to how “near” a courthouse a demonstration may be; here,
permission was clearly given by police to conduct demonstration across the street
from the courthouse (where it was held), conviction of persons relying upon
assurances of public officials would constitute “entrapment” by the state (conviction
reversed).
SPECIFIC CRIMES
A. Rape
MD
(Trad.
CL)
NY
2nd degree (20 yr max) if:
(a) Vaginal intercourse
1. By force/threat of force w/o consent of other;
2. Victim is mentally defective/incapacitated or physically
helpless and D knows/reasonably should know so; OR
3. Victim < 14 and D is at least 4 years older than victim
1st degree (life max) if:
Involves forcible nonconsensual intercourse w/ a weapon, by infliction
of serious injury, in league with 1+ other persons, or in commission of
burglary.
Sexual Misconduct (misdemeanor/1 yr max) if:
1. Being male, D engages in sexual intercourse w/female w/o her
consent
3rd degree Rape (4 yr max) if:
1. He or she engages in sexual intercourse w/another person to
whom D is not married who is incapable of consent by reason
other than factor of being < 17 OR
2. Being 21+, D has sex w/another person to whom D is not married
who is < 17.
2nd degree Rape (7 yr max) if:
1. Being 18+, D has sex w/another person to whom D is not married
who is < 14
1st degree Rape (25 yr max) if:
1. By forcible compulsion; OR
2. Vic incapable of consent b/c physically helpless, OR
3. Vic < 11.
--Female = not married to D
--Element of every offense except consensual sodomy that act be
committed w/o consent of victim.
--“Lack of consent” = forcible compulsion or incapacity to consent.
--“Forcible compulsion” = (a) use of physical force or (b) threat, express
or implied, which places victim in fear of immediate death/physical
injury to herself /another or in fear that she/another will be
immediately kidnapped.
--Victim incapable of consent when:
WI
(Reform)
a. < 17 years old
b. Mentally defective
c. Mentally incapacitated (by substance not administered on own)
d. Physically helpless
Sexual Assault
1st degree (class B felony, 40-yr max) if:
a. Sexual contact/intercourse w/another person w/o consent and
causes pregnancy/great bodily harm, OR
b. Has sexual contact/intercourse w/another person w/o consent
by use or threat of use of a dangerous weapon or any article
leading victim reasonably believe it’s a dangerous weapon.
2nd degree (class BC felony, 25-yr max) if:
a. Sexual contact/intercourse w/another w/o consent by use of
threat of force or violence
b. Sexual contact/intercourse w/another w/o consent and causes
injury, illness, disease, or impairment of a sexual/reproductive
organ, or mental anguish requiring psychiatric care
c. Sexual contact/intercourse w/victim suffering from mental
illness/deficiency rending her incapable of appraising conduct,
and D knows of such condition.
d. Sexual contact/intercourse w/another under influence of
intoxicant rendering her incapable of appraising conduct, and D
knows of the condition.
e. D knows vic is unconscious
3rd degree (class D felony, 5-yr max) if: w/o consent
2nd deg
1st deg
3rd deg
--Consent = words/over actions by person competent to give informed
consent indicating freely-given agreement to have sex/contact
--Marriage not a bar to prosecution
§213.1(1) 2nd degree rape if victim is NOT D’s wife and:
a. He compels by force/threat of imminent death/injury
b. He has substantially impaired her power to control conduct by
administering drugs/alcohol to prevent resistance
c. Female is unconscious
d. Female is < 10 yrs old
§213.1: 1st degree if:
i. actor inflicts serious injury OR
ii. victim was not a voluntary social companion and had not previously
permitted D sexual liberties [aka “stranger rape”]
§213.1 (2): Gross Sexual Imposition (3rd deg) if NOT D’s wife and:
a. compels woman to submit by threat that would prevent
resistance by a woman of ordinary resolution OR
b. He knows she suffers from mental disease/defect that would
prevent her from appraising the nature of her conduct
Mis.
§ 213.4, Sexual Assault: actor guilty of sexual assault (misdemeanor) if
he has sex w/ another not his spouse if victim is:
(1) Less than 16 and actor is 4+ years older, OR
(2) If victim is under 21 and actor is her guardian, OR
(3) Victim is in custody of law or detained in hospital/institution and
actor is a supervisory/disciplinary authority
§211(3): Assent does not constitute consent if given by person who is manifestly
unable or known by actor to be unable to make a reasonable judgment as to
nature/harm of conduct charged b/c of:
a. youth
b. mental defect/disease
c. intoxication
§ 213.6 Provisions Generally Applicable to Article 213
(1) Mistake of Age: No defense if child under 10; when criminality depends on
other age, it IS a defense for actor to prove by preponderance of evidence
that he reasonable believed child to be above that age
(2) Spouse Relationships: Language excluding spouse relationships applies to
those living as man and wife regardless of legal status but does not apply to
separated spouses living apart. Where definition excludes act by spouse or a
woman, it does not preclude conviction of spouse/woman as accomplice in
sexual act which he or she causes ANOTHER, not w/in exclusion, to perform.
(3) Sexually Promiscuous Complainants: Defense against 213.3 and 213.4(6-8)
for D to prove by preponderance of evidence that alleged victim had prior
engaged in promiscuous sexual relations with others.
(4) Prompt Complaint: No prosecution if brought to authorities more than 3
months after occurrence (or if brought by adult on behalf of victim under 16,
3 months after adult learns of offense).
(5) Testimony of Complainants: no person shall be convicted upon
uncorroborated testimony of alleged victim, but corroboration may be
circumstantial. Jury shall receive instruction about special care of evaluating
witness testimony in light of private acts/emotional involvement.
§213.3: Seduction of Minors (book doesn’t include text)
 Note: controversial features of classic rape law: (1) marriage exception, (2)
gender specificity, (3) consent mistake of fact defense, (4) force/resistance
requirements.
Mens Rea of Rape
When statute doesn’t specify MR requirement for AC of consent, cts read
differently:
1. Knowledge (uncommon but trad. CL): “yes sometimes means no,” uncommon
but trad. CL, Morgan (Eng.). Allows for “honest” mistake of fact.
2. Recklessness (rare): conscious disregard, rare (only AK)), Reynolds.
3. Negligence (majority): objective standard punishing D who isn’t attentive to
norms of community, majority, Fischer (PA), Craigslist (WY). Allows for
“reasonable and honest mistake.” E.g. NJ, CA.
4. SL (reform): “no means no,” controls jury’s ability to exercise personal views,
Lofkowitz (MA), Simcock (MA), Canada. No statute presents SL, only by
reformist ct interpretation. Allows no mistake of fact.
Commonwealth v. Fischer (PA 1998): D Fischer raised mistake of fact defense after
rape allegation by another student, claimed her initially aggressive behavior made
his act not “forcible” because she seemed to be enjoying it, plus he stopped seeking a
second act of oral sex when it was clear victim did not wish to engage. Ct cites other
jurisdictions with mistake of fact defenses re: consent (NJ, CA, “reasonable belief” of
consent), but does not adopt “compelling” principles b/c of binding precedent
(judgment aff’d).
Most jurisdictions do not enforce strict liability (e.g. MA) as to consent;
majority rule is that a mistake as to consent is a defense if “reasonable”—a
negligence standard. “Recklessness” standard is least common of all (e.g AK).
Notes on Consent Reform:




“No means no” standard, as in Commonwealth v. Lefkowitz (MA App Ct 1985):
anything other than woman’s manifestation of non-consent is legally
irrelevant, further action is unwarranted and actor proceeds at his peril
Catharine MacKinnon: when reality is split (violated women and honest men
who were confused) law tends to conclude that rape did not happen,
instituting “reasonable belief” standard without asking to whom it is
reasonable and why. Assumes single, objective state of affairs that may often
not exist.
Douglas Husak and George Thomas III: if reformers succeed in eliminating
mistake-of-fact defense, some men will be convicted of rape even though
they had reason to believe consent was given, but that’s not a “just result” in
the particular case
Susan Estrich: If inaccuracy or indifference to consent is “the best a man can
do”, then it would be unfair to punish, but most men have greater capacity
than that. Man who has the inherent capacity to act reasonably but fails to
has, through that failure, made a blameworthy and punishable choice.
Actus Reus of Rape
AR may or may not have force requirement.
Traditional:
1. Force or threat of force
2. Force proven by physical resistance
3. Threat must be enough to make a “reasonable woman” submit (Rusk)
Alternatives:
1. Read out force requirement (M.T.S., (NJ))
2. “Indecent assault”: lack of consent regardless of “force” (Berkowitz (PA))
3. Broad statutory definition of what constitutes “force” (post-Rusk in PA)
-----4. Model Statute (sexual assault/sexual abuse), p. 241
5. Shaming penalties (p. 243)
6. Civil remedies (e.g. Violence Against Women Act (struck down by SC)
State v. Rusk (MD 1981): D Rusk convicted of 2nd degree rape, appeal. Victim Pat
gave D Rusk a ride home; vic says D Rusk turned off her car, took her keys, made
threatening facial expressions, and started “lightly choking her” when she cried. D
Rusk says vic turned car off, that she came willingly to his room, and that he did not
make threatening facial expressions, threats, or choke her. Witnesses for D testified
as well. App ct decided that in light of facts viewed most favorably to P, no
reasonable jury could find elements beyond reasonable doubt for guilt. SC:
Reasonableness of victim’s fear was a question of fact for the jury to determine (to
determine threat of force element); where persuasion ends and force begins is a
factual issue, and if jury believes victim, conviction stands.
DISSENT: if an essential element of a crime is not sustained by evidence,
the conviction cannot stand. Woman must resist unless D has objectively
manifested intent to use physical force, evidence here followed pattern of seduction
of female who first suggests disinclination not rape. No evidence of struggle, woman
walked across street up to apt, “she certainly had tor realize they were not going
upstairs to play Scrabble”.
Judge Wilner dissent from App Ct conviction reversal: defining “force” by
“resistance” is questionable, cites data re: increased risk of harm accompanying
resistance, prevalence of voluntary contact w/assailant, physical force absent in
over half of reported cases. Some studies have questioned interpretation,
concluding physical resistance is more likely to be a consequence than cause of
physical injury and that pre-rape physical resistance does deter rape.
11/9 judges ruled against P, even though SCt ruled for her
(Dissent) Force used to show (a) man knew lack of consent, he cannot be
sure in absence of force, (b) conception that force is what makes rape bad
Ct moves past force to threat of force b/c of insufficient resistance
Force: evidence of non-consent, additional evidence of harm
 2nd degree WI, 1st degree NY, 25 yrs either way
State in the Interest of M.T.S. (NJ 1992): QP: whether element of “physical force” is
met by mere act of non-consensual penetration w/o extra force to accomplish that
act. 17 year old boy (MTS) had sex w/ 15 year old girl (CG), neither version of facts
credited fully. Trial ct: although they didn’t believe CG was “asleep” at time of
penetration as she claimed, she hadn’t consented so still 2nd degree “sexual assault.”
App ct: absence of force beyond the act of penetration itself, so no 2nd degree sexual
assault. Vic argues “force” = any amount of sexual touching brought about
involuntarily, D argues “force” = force used to overcome lack of consent. SC: Reads
out force element (1) draws parallel to tort law (as unauthorized touching = battery,
unauthorized sexual conduct = crime), (2) privacy expectation violated by any
touching that occurs w/o permission, (3) reform of laws must be consistent w/ our
evolving understanding of wrongs inherent in forced sexual intimacy.
WI: 3rd degree sexual assault
NY: sexual misconduct
Commonwealth v. Berkowitz (PA 1994): QP: “degree of force” necessary to prove
forcible compulsion element of crime of rape. Vic was looking for a friend, D’s
roommate, he locked door, pushed her onto bed, and penetrated despite her saying
“no”, contested facts. Viewing facts favorably to P, complainant’s testimony is
devoid of any statement re: threat of force against her, was not restrained, did not
try to leave through door she knew was unlockable. Saying no is relevant to
question of consent, not issue of force; testimony fails to establish forcible
compulsion as req’d for rape; however, “indecent assault” involves not forcible
compulsion but “indecent contact w/another w/o consent of the other, so THAT’S
met.
PA amended statute after this case to say “forcible compulsion” may be
physical, intellectual, moral, emotional, or psychological
 In “no sometimes means yes” world, woman’s verbal profession of
nonconsent doesn’t furnish clear evidence, BUT nonconsent will be seen as
genuine/”not feigned” if she resists to point that he must use physical force, so force
functions as proof of non-consent. Some states, e.g. Alaska in Reynolds v. State,
eliminate element of force but say D must “recklessly disregard” victim’s lack of
consent (allowing mistake of fact defense)… responds to elimination of force
element w/ a more liberal mistake of fact defense, norm-changing laws constrained
by norms they seek to change?
Notes on Force Reform


Catherine MacKinnon (p. 236): Woman has to prove it was not intercourse,
because if sex occurred consent is inferred unless she can prove “more force
than usual.” But what force is “usual/normal”?
Catherine MacKinnon: Women are socialized to passive receptivity; even if
no force is used, sex may be deeply unwanted.




Susan Brownmiller: female victims must work through male-dominated
court system that is not in their camp
Victim more often on trial than D when “contributory negligence”-type
standard is applied in acquaintance rape cases
Shield laws protect against evidence that may lead jury to improperly infer
consent/lies of victim based on past behavior/unchaste character
If “force” doesn’t require more than penetration, do economic and other
forms of coercion count? (Domestic employ, drug addict/dealer, etc)
B. Homicide: death w/in a year and a day
Federal Statute (representative of CL):
18 U.S.C. § 1111. Murder.
Murder is the unlawful killing of a human being with malice aforethought.
1st degree: Every murder perpetrated by poison, lying in wait, or any other kind of
willful, deliberate, malicious, and premeditated killing; or committed in the
perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping,
treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, burglary, or
robbery; or perpetrated from a premeditated design unlawfully and maliciously to
effect the death of any human being other than him who is killed, is murder in the 1st
degree. Punishment: by death or by life imprisonment.
2nd degree: Any other murder is murder in the 2nd degree. . . . Punishment:
imprisonment for any term of years/life.
18 U.S.C. § 1112. Manslaughter
Manslaughter is the unlawful killing of a human being without malice. 2 kinds:
Voluntary  Upon a sudden quarrel or heat of passion. Punishment: fined under
this title or imprisoned not more than 10 years or both.
Involuntary  In the commission of an unlawful act not amounting to a felony, or in
the commission in an unlawful manner, or without due caution and circumspection,
of a lawful act which might produce death. . . . Punishment: fined under this title or
imprisoned not more than 6 years or both.
Model Penal Code: [most states have not adopted w/respect to murder, and often
those that do return to CL shortly thereafter]
§ 210.1. Criminal Homicide.
(1) A person is guilty of criminal homicide if he purposely, knowingly, recklessly or
negligently causes the death of another human being.
(2) Criminal homicide is murder, manslaughter, or negligent homicide.
§ 210.2. Murder.
(1) Except as provided in Section 210.3(1)(b), criminal homicide constitutes murder
when:
(a) it is committed purposely or knowingly; or
(b) it is committed recklessly under circumstances manifesting extreme indifference
to the value of human life. Such recklessness and indifference are presumed if: the
actor is engaged or is an accomplice in the commission of, or an attempt to commit,
or flight after committing or attempting to commit robbery, rape or deviate sexual
intercourse by force or threat of force, arson, burglary, kidnapping or felonious
escape.
(2) Murder is a felony of the 1st degree [but a person convicted of murder may be
sentenced to death, as provided in Section 210.6].
§ 210.3. Manslaughter.
(1) Criminal homicide constitutes manslaughter when:
(a) it is committed recklessly; or
(b) a homicide which would otherwise be murder is committed under the influence
of extreme mental or emotional disturbance for which there is reasonable
explanation or excuse. The reasonableness of such explanation or excuse shall be
determined from the viewpoint of a person in the actor’s situation under the
circumstances as he believes them to be.
(2) Manslaughter is a felony of the 2nd degree.
§ 210.4. Negligent Homicide.
(1) Criminal homicide constitutes negligent homicide when it is committed
negligently.
(2) Negligent homicide is a felony of the third degree.
1st deg
murder
2nd deg
murder
Intentional (Purpose/Knowledge)
Premeditated
Carrol (no time too short, inferable from D’s
words/actions) vs. Anderson (“genuine”
premeditation: planning/motive/ manner)
Intentional but unpremeditated
2nd/1st deg require malice: “the wickedness of
disposition, hardness of heart, cruelty,
recklessness of consequences, & mind regardless
of social duty which is termed malice”
Volunta
ry
Mansla
ughter
“Legally adequate provocation” (Thornton, TN)
vs. some acts not sufficient provocation as matter
of law (Carr, PA)
Adequate provocation +
heat of passion +
insufficient cooling time
Unintentional (no purpose/knowledge)
-Felony murder (enumerated, PA-style (majority))
(Serne), killing “in furtherance” of felony
Subject to inherently dangerous/merger, see FM
-HI/KY/ abolished, AR/DE limit, OH re-included
1st deg
murder
-Felony murder (unenumerated, PA-style
(majority)), killing “in furtherance” of felony
-Gross recklessness [cts look for unusual callousness
toward others’ welfare, high likelihood of harm, high
gravity of harm implying malice] (Malone, PA)
-Intent to inflict great bodily harm
 Depraved and malignant heart murder: exhibit
malice, express or implied.
DRUNK DRIVING:
1. Malice est. by gross deviation from standard of
care such that jury can infer D was aware of (and
consciously disregarded) risk of harm, applies if
driving not just drunk but dangerously (Fleming, 4th
Cir)
2. MPC: exception to recklessness MR requirement
for voluntary intoxication (noted in Fleming)
3. Intoxication exception allows murder charge w/o
consciousness of risk, “implied malice” if D acts
w/high probability of resulting harm and does it
anyway w/conscious disregard for life (Watson, CA)
[See leg responses, CA and VA]
FELONY MURDER:
-MI abrogated 2nd degree (1st, for enumerated, still
stands) (Aaron) others criticize (CA), NM followed
-Subject to inherently dangerous/merger (see FM)
2nd deg
murder
-Gross negligence or recklessness (depending on
jurisdiction)
-In committing unlawful act, even misdemeanor (a
few jurisdictions) (means P need not prove any
culpable mental state)
Involunta
ry
Manslaug
hter
Diff approaches:
1. “Culpable negligence” above ordinary negligence
(Barnett, SC, defines)
2. “Ordinary neg with dangerous instrumentality”
(e.g. Tophia, CA)
5. “Ordinary negligence” (RPPUTC) suffices
(Williams, WA)
3. “Imputation” of recklessness when normal man
UTC would’ve realized gravity of danger (Welanksy,
MA—didn’t criminalize neg or gross neg, had to get
to recklessness)
4. SL misdemeanor violations can’t support mis
manSL b/c that requires showing (1) mis occurred
and (2) was prox cause of vic death; SL prevents prox
cause inquiry (Great White, RI)
MPC Homicide Gradations:
Intentional
Unintentional
Murder
Purpose or knowledge
Manslaug
hter
Purpose/knowledge AND under extreme
mental/emotional disturbance for which
there is explanation/excuse.
Reasonableness of explanation/ excuse
determined from viewpoint of a person in
actor’s situation under circumstances as
he believed them to be.
Must still be reasonable even from D’s
viewpoint, Cassasa, NY (malevolence, not
understandable human response
deserving mercy)
-Recklessness + extreme indiff. to human
life
-Felony murder:
1. Enumerated: robbery, rape, arson,
burglary, kidnapping, felonious escape
2. No merger
3. Engaged in/accomplice to/fleeing from
felony)
Recklessness
Negligent
Homicide
Gross negligence
Felony
Degree
1
2
3
2. INTENTIONAL HOMICIDE: 1st vs. 2nd DEGREE: generally, premeditated vs.
unpremeditated, but application of terms is flexible
Commonwealth v. Carrol (PA 1963): Man of good repute shot nagging/sadistic wife
following argument, 5 mins elapsed b/t wife’s last remark and shooting, pre-loaded
gun was already w/in reach. (1) Intent is inferable from words/conduct. Ct
disagrees w/D’s argument that he had insufficient time to “premeditate”, esp.
considering good character, time/place of crime, difficulty of concealing body/lack
of escape plan. “No time too short for wicked man to premeditate crime.” (2)
Psychiatric testimony has little weight outside insanity cases, and cts cannot
abdicate duty of determining criminal liability to a psychiatrist. (3) Society would
not be protected if mere emotional impulse were a defense to killing.
People v. Anderson (CA 1968): D pleaded insanity after stabbing gf’s 10-yr-old
daughter to death, many superficial/severe extremely brutal wounds, D almost nude
during attack, drinking during the day. Brutality does not itself prove
premeditation. Presumption = 2nd degree murder, burden of P to show beyond
reasonable doubt that killing was genuinely premeditated (not spontaneous) to
elevate to 1st degree.
3 forms of evidence ). Ct usually requires all 3 or very strong #1 or #2 +
#1/#3.
(1) Planning activity (e.g. surreptitious conduct/control of vic/kidnapping
(Hillery), preventing from IDing assailant or calling for help (Kemp), superficial
wounds to dull victim resistance (Cartier, Stroble)
(2) Motive based on relationship w/vic (e.g. adulterous spouse
relationship (Cartier), sexual molestation history (Stroble)
(3) Manner of killing (so exacting it must have been by design (e.g. direct
stabbing attack not superficial wounds (Hillery, Stroble), deliberate strangling
(Kemp), butcher-like cutting (Cartier)
Compared to Granados, where evidence was lacking for all 3 (sending vic’s
brother from house not sufficient planning, alleged molestation/question re:
virginity not sufficient motive, brutal hacking not exacting manner of killing).
Here (Anderson), also lacked all 3 (no planning, no motive, chaotic killing
not preconceived design).
Note: after this case, CA did about-face on premeditation following
ousting of liberal SC justices blocking carrying out of death penalty
3. INTENTIONAL HOMICIDE: MURDER vs. VOLUNTARY MANSLAUGHTER: D
must show (1) adequate provocation, (2) heat of passion, (3) insufficient cooling
time
State v. Thornton (TN 1987): D walked in on separated wife having sex, intending to
take pictures for divorce proceedings, though bigger vic was going to attack him,
shot in hip wanting to disable him, vic died of wound infection. “Provocation
doctrine”: passions of a reasonable person would have been inflamed in the
situation to point of legally sufficient provocation. Encountering cheating spouse
almost always sufficient to reduce manslaughter absent actual malice (e.g. previous
grudge, revenge).
Cooling time unclear, 1 hr may not be enough (Toler), 17 hours is enough
(Ashland), usually a jury question of what is sufficient
Rationale of “provocation doctrine”: (1) anger is like insanity (reduces
choice capability), (2) penalty should correlate to character (lack of control in killing
may relate to extraordinary situation, not bad character).
”Legally adequate”: common law used to define what was adequate
provocation (e.g. blow to face rather than ear) but most jurisdictions now permit
factfinder to decide (Carr)
Infidelity the classic CL application of provocation mitigation to
manslaughter, some say reflects outmoded patriarchal norms (but may be invoked
as often under MPC anyway). MD only state where, by statute, adultery is a noncognizable ground for manslaughter mitigation.
Misdirected retaliation: impassioned offender who kills someone other
than provoker not entitled to mitigation of murder to manslaughter (e.g. killing
adulterous wife and sleeping son)
Commonwealth v. Carr (PA 1990): D shot 2 lesbian lovers in woods (killed 1), alleged
he did so in heat of passion caused by provocation of their lovemaking b/c of his
history of rejection by women. PA employs “objective test” for “legally adequate
provocation”: (1) whether reasonable actor under circumstances would become
impassioned to point incapable of cool reflection, (2) if so, whether actor actor acted
in heat of passion when committing the homicide, and (3) if so, whether there was
sufficient cooling time. Homosexual lovemaking not sufficient reason #1,
reasonable person would not be so impassioned but merely move on. Recalling a
past injury/insult is also not a foundation for legally adequate provocation.
 Some cts treat homosexual propositions as inadequate provocation as a
matter of law
MPC Manslaughter (210.3) [very few states adopt]
1. Homicide which would otherwise be murder committed under influence of
extreme mental or emotional disturbance for which there is reasonable explanation
or excuse, the reasonableness of which is determined from the viewpoint of a
person in the actor’s situation under the circumstances as he believed them to be.
 Meant to enlarge number of impassioned/impulsive killers eligible for
mitigation, under policy theory that emotional impairment reduces culpability and
deterrability.
Comparison to CL:
CL: adequacy of provocation measured by effects on a reasonable person
(compares to contemporary community norms)
MPC: considers “reasonableness” of D conduct from viewpoint of actor in D’s
situation. Allows for greater subjectivity, doesn’t exclude personal characteristics
like sense of honor or fearful temperament (D must show feelings were “intense”,
not that they were at all appropriate to situation). Can be less spontaneous than CL
“heat of passion” if trauma affects for a substantial time (according to ct in Cassasa).
Affects kind of evidence allowed (e.g. psychiatric testimony v. important to
Ds under MPC but of little worth under CL).
Outcomes not necessarily different (jury still has to be convinced by D)
People v. Cassasa (NY 1980): D obsessed ex-boyfriend stabbed ex-gf after visiting
her apt in attempt to reconcile. Psychiatrists testified on both sides (D emotionally
disturbed by obsession with ex-gf/emotional disturbance not w/in meaning of law
b/c it was not produced by external factors but a self-created fantasy). NY law
allows “extreme emotional disturbance” (EED) based on MPC formula but as an
affirmative defense (D burden of proof); emotional disturbance can be less
spontaneous than the “heat of passion” CL doctrine (if significant trauma affects for a
substantial time) but still requires: (1) D acts under EED AND (2) reasonable
explanation/excuse for EED determined by viewpoint of person in D’s situation
under circumstances as D imagined them. Here, D did act under EED (1) but EED
was not reasonable, it was instead peculiar to D and unworthy of defense (2). Only
consider #2 if #1 met, gives factfinder opportunity to mitigate on facts but not
obligation to do so.
4. UNINTENTIONAL HOMICIDE: INVOLUNTARY MANSLAUGHTER
MPC: neither knowingly nor purposefully, jurisdictions divided over what
mental state SHOULD be. Most states: gross negligence or recklessness.
State v. Barnett (SC 1951): Culpable negligence definition: more than failure to use
ordinary care toward others, must be gross and flagrant, a course of conduct
showing reckless disregard of human life/safety or want of care such as to raise a
presumption of a conscious indifference to consequences, or which shows
wantonness or recklessness, or a grossly careless disregard of the safety/welfare of
the public, or such indifference to rights of other as is equivalent to intentional
violation of such rights.
In many jurisdictions, “ordinary negligence” suffices for involuntary
manslaughter when D has caused death w/a dangerous instrumentality. Guns
count, cars don’t.
Commonwealth v. Welanksy (MA 1944): D nightclub owner was absent from
premises in the week preceding club fire but knew exits were few/locked/hard to
find, massive fire killed many patrons when they couldn’t get out. Fire in public
places is an ever-present danger; even if particular D is too stupid/heedless to
realize danger, he cannot escape the imputation of wanton/reckless conduct in his
dangerous act (or omission, as here) if an ordinary person under the same
circumstances would have realized the gravity of the danger.
Great White Case (RI 2003): [SL NOT SUFF. FOR MISDEMEANOR MANSL] D’s
concert pyrotechnics in violation of fire code started fire that killed many patrons.
Misdemeanor violation of fire code was a strict liability offense, raising specter of
manslaughter liability for non-negligent act. Misdemeanor manslaughter requires
that state show (1) misdemeanor occurred, and (2) misdemeanor was a proximate
cause of death; strict liability offenses cannot give rise to misdemeanor
manslaughter b/c proximate cause issue cannot be raised in strict liability offenses.
State v. Williams (WA Ct App 1971): [ORDINARY NEG] Undereducated Native
American couple failed to seek medical attention for their baby, who died following
during several-day period of illness w/ signs of seriousness (abscessed tooth
started, ultimately died of pneumonia). Under WA statute, “ordinary negligence”
sufficient for involuntary manslaughter (not gross negligence, as under CL), RPPUTC
would have deemed it necessary to seek medical help during the period when the
child could have been saved. Couple’s ordinary negligence was prox cause of baby’s
death, involuntary manslaughter conviction.
Kyron Huigens, Virtue and Criminal Negligence: negligent actors are responsible
because of their own flawed judgment/ordering of priorities and blameworthy
because their past choices/life plan brought them to heedless disaster (negligence =
character judgment for D’s failed practical judgment).
H.L.A. Hart, “Punishment and Responsibility”: in punishing criminal negligence, cts
must choose to ask one or both: (1) did D fail to take precautions of RPPUTC? (2)
could D, given mental/physical capacities, have taken those precautions?
Represents “invariant standard” vs. “individualized conditions of liability”.
“Absolute liability” results when cts do not apply #2.
Clarence Thomas, Crime and Punishment: punishment directs society’s moral
indignation toward those who violate its rules; a system that doesn’t hold people
equally accountable makes them less than full citizens (should not have
individualized conditions).
“Sentence in Fatal DWI Spurs Rage in Victim’s Supporters” (2003): D charged with
DWI (misdemeanor) after hitting pedestrians who ran in front of her car. Driving
while intoxicated not itself criminal negligence/recklessness (in MA);
neg/recklessness relates to how car is driven, not driver’s intoxication (evidence
showed D wasn’t speeding/driving outside lanes/etc).
MPC § 210.3 Manslaughter
(1) Criminal homicide = manslaughter when (a) it is committed recklessly…
Comment encourages a strict distinction b/t negligence and recklessness
according to MPC definitions. Under MPC, negligence gets negligent
homicide, recklessness gets manslaughter or murder.
Recall MPC 2.02(2) definitions:
Recklessly: Reckless w/respect to any material element of an offense when actor
consciously disregards a substantial and unjustifiable risk that the material element
exists or will result from conduct. Risk must be of such nature/degree that,
considering nature/purpose of actor’s conduct and circumstances known to him, its
disregard involves gross deviation from standard of conduct a law-abiding person
would observe in the actor’s situation.
Negligently: Negligent w/respect to a material element of an offense when actor
should be aware of substantial/unjustifiable risk that element exists or will result
from conduct. Risk must be of such nature/degree that failure to perceive it,
considering nature/purpose of actor’s conduct and circumstances known to him,
involves gross deviation from standard of care reasonable person would observe in
that situation.
5. UNINTENTIONAL HOMICIDE: DEPRAVED & MALIGNANT HEART MURDER
Commonwealth v. Malone (PA 1946): D 17-yr-old killed 13-yr-old friend when
playing “Russian poker”, pulled trigger 3 times (60% chance w/5-chamber gun).
Malice evidenced by intentional doing of an uncalled-for act in its callous disregard
of its likely harmful effects on others, lack of motive does not exculpate. Ordinary
recklessness suffices for manslaughter, but murder requires judgment as to whether
actor’s conscious disregard for risk UTC manifests extreme indifference to human
life which can be “fairly assimilated to” purpose/knowledge. Q for trier of fact.
 Mere recklessness may elevate to “depraved/malignant heart murder” (CL) or
“extreme indiff to human life” recklessness (MPC) b/c of high probability of death
U.S. v. Fleming (4th Cir 1984): D Fleming driving while drunk on GW Pkwy at 70-100
mph, weaving to opposite lane, hit vic traveling in opposite direction when he
crossed highway. D argues no malice aforethought (under 18 USC §1111 elevates
from manslaughter to murder). Malice est. by reckless/wanton behavior that is
such a gross deviation from reasonable standard of care that the jury can infer D
was aware of serious risk of death/harm; MPC also notes that when recklessness
est. an element of the offense, self-induced intoxication making D unaware of risk is
immaterial if he would’ve realized the risk if sober (§ 2.08(2)). Usual drunk driving
= reckless not purposeful, but here not just driving drunk but driving esp.
dangerously such that charge elevates to murder recklessness.
People v. Watson (CA 1981): Drunk D speeding, nearly missed one collision but then
hit a car in the next intersection. “Gross neg” (manslaughter) and “implied malice”
(2nd degree murder) require awareness of risk of harm, but to different degrees.
“Implied malice” if D acts w/high probability it will result in death/harm and does it
anyway w/a conscious disregard for life. Ct says there was sufficient evidence here
for determination to get to jury.
DISSENT: decision rewrites implied malice law to make all vehicular homicides
involving alcohol 2nd degree murder. Drinking alcohol doesn’t = conscious disregard
for life (many drunks make it home safely, act of drunk driving not “likely” to kill).
Ct decision/Leg Response Interactions:
CA decision: Watson (murder sustainable when malice is “implied” by conscious
disregard for life in driving drunk and dangerously). Leg response [mitigating]:
Involuntary manslaughter if D causes death w/o gross negligence but under
influence, gross vehicular homicide if w/ gross negligence (but doesn’t preclude
finding of murder upon facts exhibiting wantonness/disregard for life sufficient for
implied malice).
VA decision: drunk driver only liable for involuntary manslaughter unless state
proved independent “malice”. Leg response [bumping]: involuntary manslaughter if
D under influence and unintentionally causes death, aggravated involuntary
manslaughter if D’s conduct so gross/wanton/culpable as to show disregard for life.
6. FELONY MURDER
Regina v. Serne (Eng. 1887): D took out insurance policies on imbecile son and
furniture, house burned and 2 sons died. Any act known to be dangerous to life and
likely in itself to cause death, done for purpose of committing a felony, which causes
death = murder. Here, doesn’t matter if D wanted children to live; if he set fire,
comparable to stabbing kids.
FM relieves P of need to prove premeditation
Many states have supplemented classic 1st degree FM list. Most states (PA-style
majority): arson, rape, robbery, burglary. Some additions: espionage (fed), cocaine
distribution (FL), carjacking/trainwrecking (FL), use of WMDs (ID).
Unenumerated felonies = “other kinds of murder”, 2nd degree.
England repealed FM, states differ. HI/KY abolished, AR/DE limit, OH
purposefully re-included, MPC critical but includes FM b/c “extreme indiff to human
life” can be “presumed” where person causes death in course of enumerated
felonies.
People v. Aaron (MI 1980): Abrogated FM rule. For murder, felony does not satisfy
mental element. D must have intent to kill/harm or wanton/willful disregard of
likelihood for murder, and issue of malice is ALWAYS a jury question. Enumerated
felonies will still bump to 1st degree (but mental element must be met,
purposefully/knowingly/grossly recklessly causing death).
NM followed MI
Other states declined to follow (e.g. CA, saying ct violating separation of powers
authority to overrule statute even if out of favor).
JUDICIAL LIMITATIONS:
“Inherently dangerous”: cts may limit application of FM to:
1. “Dangerous” felonies, e.g. CA, typically a list (“elements test,” lumps together
every crime w/in a felony category (arson, rape, etc)). Cts disagree on which
offenses are “inherently dangerous” (e.g. cocaine dealing).
2. “Inherently dangerous acts” e.g. MA, (“facts test,” case-by-case as to whether
act was inherently dangerous to life).
People v. Phillips (CA 1966): D chiropractor may have told family he could cure
daughter of eye cancer w/o surgery, girl died w/o proper treatment, charged $700
for care/meds he did provide. D could be prosecuted for grand theft ($700 meds
charge) but not for FM; grand theft not an “inherently dangerous” felony looking to
the elements of the felony in the abstract (not facts of particular case). W/o felony
murder, instruction should require jury to find implied malice, express or implied
(intent w/conscious disregard for life to commit acts likely to kill), and false
representations to family do not conclusively show D’s intent w/conscious
disregard for life to kill (not clear D subjectively appreciated peril/no conscious
disregard for life). FM not viable, jury Q as to consciousness of disregard.
“Merger”: inherently dangerous act cannot be part of the act of killing, lesser
offense merges into greater offense. Assault can’t serve as predicate felony for FM
b/c assault is presupposed by murder charge.
People v. Smith (CA 1984): [No FM] D Child abuser parents hit child who died: does
the child abuse merge with the killing? No, b/c no independent purpose for the
child abuse, purpose was the very assault that resulted in death.
Ireland (1969): 2nd degree FM instruction not proper when based upon
felony which is an integral part of the homicide and is shown by evidence to be an
offense included w/in offense charged (e.g. assault w/a deadly weapon).
Wilson (1969): assault w/deadly weapon again merges. Burglary also
merges where entry would be nonfelonious but for intent to commit assault, and the
assault is integral to the homicide.
Sears (1970): assault still merges when it was intended for someone other
than an intervening victim (e.g. intended victim’s daughter).
Burton (1971): refined FM rule: (1) felony included in facts of homicide and
integral thereto? (2) does homicide result from conduct for independent felonious
purpose (e.g. armed robbery) or is it a single course of conduct w/single purpose
(e.g. assault/killing of wife w/gun)?
 Ct notes that FM doesn’t deter w/o an independent purpose (rationale for
merger)
Ct suggests appropriate underlying felonies for FM: furnishing narcotics, driving
under influence of narcotics, poisoning food/drink/medicine, armed robbery,
kidnapping, child abuse by malnutrition/dehydration.
--Criticism—
James Tomkovicz (1994):
(a) Kantian argument: FM inconsistent w/several modern notions of culpability:
(1) doesn’t reflect notions of intent (accidental still punished the same), (2)
absence of gradations (negligent killings punishable as murder, not the usual
gross recklessness limitation), (3) not proportionate liability/condemnation
across offenses (only requires malice, not premeditation) [Kantian argument,
people should get own just desserts].
(b) The alleged “deterrent” benefits of FM are a “delusion”, not shown that felons
actually hear rule’s deterrent message as cts imagine, so out FM departure
from normal fault conceptions is not justified.
(c) Social experiments show most people morally equate non-reckless felon
culpability w/reckless non-felon crime which would usually result in
manslaughter. If anything, should be felony manslaughter not felony murder.
ATTEMPTS: note: merges w/offense if attempt is completed (crime). Attempted FM also not an
option in most juris.
CL
MR [exc: some cts
allow neg/reck
when prosecuting
SL crimes, e.g.
attempted stat
rape]
AR
Purpose (specific intent) no matter what the
MR of the offense (e.g. murder, must have
purpose to kill not just recklessness)
Dangerous Proximity: factfinder must
determine if D came dangerously close to
completing crime (Peaslee yes/soliciting firesetter was D’s last act vs. Rizzo no/case-bycase basis but here not DP when not even in
presence of intended victim)
Note: a few cts use “equivocality test”: how
close to D’s actions speak to having the
purpose of committing the crime?
Renunciation
Abandonment NO defense once liability
attaches
Factual/Legal
Impossibility
-Factual impossibility is no defense (e.g. trying
to break into safe through incantations)
MPC (most juris use, stricter but allows
renunciation)
For conduct crimes (e.g. drug possession):
same MR as underlying offense
For result crimes (e.g. homicide): purpose to
cause OR belief (knowledge) that conduct will
likely cause the result (5.01)
Substantial Step: D must take substantial
step, strongly corroborative of criminal
purpose, toward committing crime (lower bar
than DP) (Buffington no/planning not an
“appreciable fragment” of robbery (Braman:
probably wrong, ct having trouble switching
from DP test, normally having weapons/laying
in wait WOULD constitute SS), Dorsey no/not
having enough drug ingredients means no SS)
NOT insufficient as matter of law:
a. Lying in wait/searching for/following
victim
b. Enticing victim to go to place of
commission
c. Reconnoitering place of commission
d. Unlawful entry to place of
commission
e. Possession/collection/fabrication of
materials to be used
f. Soliciting innocent agent to engage in
crime
Complete and voluntary renunciation req’d,
cannot be motivated merely by circumstances
increasing risk of apprehension or desire to
move/postpone crime advantageously)
(same, see CL)
-Legal impossibility IS a defense (e.g. trying to
buy firearm thought to be illegal that’s
actually legal)
Punishment
NOTE: cts often decide culpability and label as
they want, b/c often possible to characterize
either way. P will argue factual/D will argue
legal (e.g. accepting “stolen” goods that
weren’t really stolen)
Reduced factor, usually ½ penalty of offense
(see CA/fed e.g.s in long notes)
Equal to full offense, EXC: capital crime/1st
degree felony = felony in the 2nd degree (max
10 yrs) as attempt
Why Punish Attempts?
a. Posner: deterrence, increases cost to potential criminal w/o increasing penalty for
crime, incentivizes changing mind at last minute, if attempt = same punishment as
successful crime, D will just try again
b. HLA Hart: (Kantian): why punish attempter less when equally wicked intent? Guilt of D
is the same even if injury felt by attempt victim is less.
Commonwealth v. Peaslee (MA 1901): D Peaslee intended to burn building/goods, arranged good for
max combustion, solicited younger man to set fire, man refused, D and young man drove toward
building again but changed minds and drove away. Preparation is not attempt unless it comes
dangerously close to success (case-by-case determination; here solicitation of fire-setter would
have been D’s “last act” and sufficient for conviction if successful/properly set out).
People v. Rizzo (NY 1927): Ds had intention to rob a man of a payroll, set out in car searching for man
they believed possessed it but did not find him at any of the places they stopped or when they were
arrested (cops followed them). Attempt only = those acts tending to commission of crime that are so
near its accomplishment that in all probability crime would’ve been committed if not for
interference, hard case-by-case inquiry. Here, still looking for payroll man, no $ drawn yet, had plan
but opportunity never came, so not guilty of attempt (no dangerous proximity) if D didn’t reach
presence of victim target (parallels robbery, murder, burglary, etc).
U.S. v. Buffington (9th Cir 1987): Informant told police Ds intended to rob bank, drove by, wore
disguises, but power outage interfered and they drove away after bank locked doors. Mere planning
does not suffice as a substantial step corroborative of firm criminal intent; here, despite intent,
planning was not an “appreciable fragment” of a bank robbery nor a step of such substantiality
that, unless frustrated, the crime would’ve occurred.
* Suggests difficulty in moving to substantial step from dangerous proximity (Braman says usually
this would constitute substantial step (had weapons, laying in wait), but it’s a fuzzy line and cts
interpret differently)
People v. Dorsey (IL Ct App 2005): D charged w/intent to manufacture 30-150 grams of meth, told
police of that intent, but only had enough material to make max ~15 grams (by either expert’s
estimate). D can be convicted of unlawful possession of meth ingredients w/intent to manufacture,
but cannot be classified under intent to manufacture more than what he has taken a
substantial step (obtained materials) to make (sentence reduced to reflect amount had).
DISSENT: D does not need to have intent AND present ability to commit crime; intent w/ plan to
obtain rest of necessary materials suffices.
GROUP CRIMINALITY
Complicity: attaches underlying offense to members of group when 1+ of them commits underlying
crime
Conspiracy: separate offense distinct from underlying crimes group wishes to commit
ACCOMPLICE
AR
MR
Possible
Defenses?
Punishment
Solicit/aid/agree to aid/encourage (Wilcox, concert). MPC (2.06) notes: may incl causing innocent
person to commit crime, failing to fulfill legal duty to prevent crime, and (2.06(4)) “when causing a
result is part of an offense, guilty of complicity to offense if causing result w/kind of culpability
sufficient for commission of the offense”
--Low bar, can be simply depriving victim of an advantage (Talley, telegraph)
--Can be convicted even if principal doesn’t know of aid/encouragement or isn’t convicted himself
1. Mental state req’d by underlying offense (Wilson, felonious intent is a jury Q, here lacked
intent to break into own store) +
2. Purpose to assist principal. CL: “stake in the venture” or less commonly “nexus” b/t
encouragement and crime (though neither sufficient nor required), MPC: “purpose of
promoting/facilitating” crime (Gladstone, no stake in drug-selling venture of another,
charged w/aiding sale not purchase, Hamilton, Hamdan)
--Derivative Liability—
CL: Generally, principal must have felonious intent (Hayes, aiding “thief” who only wanted to entrap
D) but sometimes accomplice is still liable, e.g. law enforcement (Vaden)
MPC: still liability (5.01(3)) regardless of whether principal has felonious intent
--Gebardi Exception (victim/inevitably incident)—
E.g. transported prostitutes, drug buyers, lovers of adulterers, stat rape victims, those supervised by
kingpin (Pino-Perez) but NOT those “assisting” kingpin (Pino-Perez-supplier, Ambrose-bought
cops)—note: 2nd Cir disagreed, those “assisting” are NOT liable as “aiders/abettors” (Amen, also PinoPerez dissent)
FED SENTENCING:
[Aggravating]
1. If D was organizer/leader of 5+ participants, up by 4 levels
2. If D was manager/supervisor of 5+ participants, up by 3 levels
3. If D was manager/organizer of any other criminal activity, up by 2 levels
[Mitigating]:
1. If D was minimal participant, down by 4 levels
2. In between, down by 3 levels
3. If D was minor participant, down by 2 levels
May also created alternative statutory crimes (e.g. kingpin statute) to punish differently

Fletcher: 5 ways of participating in crime: (1) single actor, (2) co-perps, (3) perp-by-means
(e.g. child/insane person brought in to implement crime, (4) aid/abet, (5) instigate/solicit
crime. German/Soviet rules punish accessories less severely (should be in proportion to
wrongdoing/culpability, accessory less culpable), but Anglo-American and French systems
say accessories/perps should be punished alike.

Studies: respondents usually grade liability depending on degree of assistance (disagree
w/prevailing American rules punishing accomplice/perp equally).
AR: solicit, aid, agree to aid, attempt to aid
Wilcox v. Jeffrey (Eng. 1951): D writer attended illegal concert by American musician (labor laws
forbid) in order to get story for his paper. D aided/abetted concert, might be diff if he had protested
but went, paid, encouraged, wanted story for paper.
--Encouragement sufficient
Martin v. Tally (AL 1894): D Tally wired telegraph operator friend to prevent warning telegraph to
get to vic (Ross) fleeing from family of D that was angry he had seduced a relative. Vic was killed by
Skelton family, D Tally was an accomplice to murder. Aid/abet assistance doesn’t need to be but-for
cause, enough if it renders crime easier for perp by causing any disadvantage/lost chance of life to vic
(even if perp would have succeeded anyway).
Hypo: crowd encouraging killing. AR: encouraging (aiding, bar is very low), MR: purpose
-Can be convicted even if principal doesn’t know about the encouragement
Wilson v. People (CO 1939): D Wilson was drinking with perp Pierce, who stole Wilson’s watch
(Pierce denied). “To get even” D Wilson helped Pierce break into drugstore (Wilson did not enter but
went to father DA’s office to phone police), convicted of aiding/abetting burglary/larceny of Pierce.
Jury question as to whether assistance was given with felonious intent or not.
-Accomplice must have the mental state req’d by underlying offense
State v. Gladstone (WA 1980): Undercover cop asked D Gladstone to sell him marijuana, D Gladstone
said he didn’t have enough and referred him to another person, Kent, who had amount and drew a
map to Kent’s house. Charged with aiding/abetting sale of marijuana not purchase. Although aider
need not be present at commission of crime, conviction depends on proof that he did something in
association/connection w/principal to accomplish crime; mere communication that another might
commit crime is not sufficient.
-Accomplice must purposefully assist the principal. Cts look for: stake in venture, nexus (neither is
sufficient or req’d though)
DISSENT: Jury warranted in finding D entertained purpose to instigate crime of selling marijuana,
jury is in a better position to evaluate intent than ct (institutional argument).
U.S. v. Hamilton (2d Cir 2003): D Hamilton was a cop convicted of aiding/abetting maintenance of a
residence for drug distribution; he provided crack in exchange for info leading to dealers. Charge
stood b/c it was for aiding/abetting knowingly maintaining place for drug distribution, not
aiding/abetting sale (regardless of purpose re: drug sales, intent to maintain residence was there).
Hamdan v. Rumsfeld (D.C. Cir. Pending): Hamdan drove Osama bin Laden to farms in order to earn
money for family. Aiding and abetting terrorist plots?
--DERIVATIVE LIABILITY: accomplice liability usually only attaches through principal, but not
always! Policy considerations.
State v. Hayes (MO 1891): D Hayes assisted Hill (who he thought was a co-perp but actually was
related to storeowner) in entering shop through window and stealing bacon, then accepted bacon
outside store before being captured (Hill was not arrested). D cannot be guilty of aiding/abetting if
principal doesn’t have a felonious intent and merely wants to entrap D; Hill’s duty was to condemn
any preexisting plan to steal and not engage D Hayes (principal’s intent is a jury question).
 Under MPC, accomplice (5.01(3))
Vaden v. State (AK 1989): Undercover agent Snell illegally hunted foxes with help (provided shotgun,
maneuvered aircraft) from hunter D Vaden after tip re: illegal practices, D Vaden charged as
accomplice in illegal hunting. Abettor’s state of mind determines guilt, not principal’s; public
authority justification defense (also entrapment/duress/heat of passion defenses) is personal to
agent and does not transfer to accomplice.
DISSENT: Criminal act was provided by agents, w/o it, D’s acts don’t amount to crime even if done
with evil intent. Must be limits on degree of police involvement in criminal activity which will be
tolerated.
Under MPC, accomplice (5.01(3))
Gebardi v. U.S. (US 1932): Mann Act criminalizes transporting in interstate/foreign commerce a
female for purpose of prostitution/debauchery/immoral purpose; consent of victim/inevitably
incident actor does not subject him/her to conspiracy liability (also e.g. lover of adulterer, victim of
statutory rape, drug purchasers).
U.S. v. Pino-Perez (7th Cir 1989): D Pino-Perez supplied cocaine for drug kingpin Nichols in WI,
employees no accomplice liability b/c inevitably incident, but for supplier aid/abettor must associate
w/venture and participate as something he wishes to bring about (Hand), determines where liability
stops (so suppliers still included, but discludes those supervised). Distinguishes from Ambrose,
which said judges could sentence aiders/abettors to a reduced minimum provision (not 10 yrs, the
kingpin minimum); Pino-Perez says accomplice gets same sentence as principal, otherwise exceeds
judicial authority in sentencing, aiding/abetting implies fuller engagement w/activity anyway, and
there’s been no case where principal punishment was not unreasonable for accomplice anyway
because of egregiousness of conduct.
DISSENT: (1) Treating aider/abettor as kingpin is to demolish graduated punishment structure,
(2) introduces crazy patterns of liability (e.g. assistants outside organization receive higher
punishments as aider/abettors than operatives w/in organization) (3) prosecution should still have
to prove supervisory role.
CONSPIRACY: 1 overt act + MR of purpose + agreement = conspiracy (lower burden than attempt).
B/c of group nature, can overcome individual Ds’ venues/SOLs, changes evid/hearsay rules.
AR
(1) Agreement b/t 2+ individuals that 1 will commit crime
a. Does NOT need to be express if concerted action was contemplated/invited and participants adhere
to scheme (Interstate)
b. May or may not be inferable from conduct (Alvarez 1-not guilty and 2-guilty)
c. Agreement to ancillary details (e.g. why money was dirty, Stavroulakis) NOT needed as long as
agreement to “essential nature” of plan (NOT Rosenblatt, didn’t know money was dirty in first place)
(2) 1 “overt act” toward commission of lesser crime (MPC + majority, CL doesn’t always req), NOT
necessarily needed for major crime
MR
Possible
Defenses?
--Liability begins at moment of agreement
(1) Purpose to agree
(2) Intent for crime to succeed (note: mistake of fact/law defeating underlying offense defeat
conspiracy too, Rosenblatt, above)
(1) Merger? NO, conspiracy is a separate crime. Rationale: greater dangers posed by group activity,
separate penalties make recruitment harder/allow cops leverage to flip small fry to pursue higherups, calibrating penalties disincentivizes getting into bigger crime
(2) Impossibility? NO defense
(3) Didn’t agree to all acts/consequences (e.g. shooting cop during robbery)? MPC/reform states:
not liable, traditional states: liable for all resulting acts. Pinkerton: conspirator liable for any
reasonably foreseeable crime that falls w/in scope of conspiracy, even if he himself didn’t commit it.
Fed sentencing calibrated by “relevant conduct” usually excludes, but it remains an option esp under
specializes statutes (e.g. drug conspiracies)
(4) Withdrawal (MPC+majority, CL minority DISALLOWS): D must show:
(a) he has taken affirmative steps to disavow/defeat objectives of conspiracy, AND
(b) made reasonable effort to communicate those acts to co-conspirators or disclose scheme to law
enforcement.
--P burden to show withdrawal, otherwise continued participation presumed (Pinkerton)
Punishment
(5) Bilateral requirement? SOME cts require bilateral agreement to conspire, so if 1 party is
faking/incompetent/undercover cop, no conspiracy. Other cts: only unilateral agreement needed
CL (majority): “CUMULATIVE” punishment for conspiracy AND target offense, non-merged
MPC (+reform juris, incl fed): prohibit cumulative punishments
Pinkerton v. United States (US 1946): Brother Ds Walter and Daniel Pinkerton were indicted on
several substantive counts of IRS fraud and one each of conspiracy; evidence showed that Daniel did
conspire but did not participate directly in substantive offense. Daniel was in jail at time of
substantive offense. Still, without withdrawal, partnership in crime continues and over act of one =
overt act of all, joint liability regardless of which partner committed. Places burden on D to show
withdrawal, if none, continued participation presumed.
 DISSENT: creates too broad a standard of vicarious liability, evidence of general conspiracy
agreement should not cover substantive crime of one
Interstate Circuit v. United States (US 1939): Ds: 8 film distributing co.s, 2 film exhibiting co.s, D
Interstate (one of latter 2) sent letter clearly addressed to all 8 distributors asking compliance
w/restrictive price-fixing/film showing requirements as condition of continuing to receive
Interstate’s exhibition (resulted in higher ticket prices and less business to other exhibitors and net
income to Interstate). No direct testimony as to agreement, but inference of agreement can be
drawn when all 8 knew of gains if working together and loss if not (motive for concerted action).
Agreement not a prereq to conspiracy liability if concerted action was contemplated and
invited and participants adhere to scheme, otherwise non-agreeing party would outprice the
others.
Distinguishable from cases like Gnutella, relies on participation of all, also have to have sufficient #
violations of file sharing which most users don’t meet
U.S. v. Alvarez (5th Cir 1980): D Alvarez dropped off drug importers at airport and helped to load
appliances on plane, responded with “smile and nod” to undercover cop’s question of whether he’d
be there at unloading (of marijuana) on their return. D needs 2 intents: (1) intent to enter into
agreement, (2) intent to commit underlying unlawful act. Promise to assist in uncommitted offense
does not in itself show knowledge of conspiracy/agreement to join, promised to unload plane (lawful
act), requires too-long chain of inferences to think he agreed to underlying act (no evidence he
agreed to essential plan, even if he had nefarious purpose).
Different kind of crime? Whole endeavor (unlike Interstate) not certain to fall apart if not
everyone agrees
U.S. v. Alvarez (5th Cir 1980 en banc): Alvarez’s joinder in agreement IS inferable, evid that he went
there was enough, (1) evid he intended to be at unloading site, (2) nodded head can be viewed as
assurance to assuage jittery accomplice (furtherance of conspiracy).
DISSENT: Smile/nod not sufficient to prove participation, was doing lawful act, high potential for
injustice.
U.S. v. Stavroulakis (2nd Cir 1992): D Stavroulakis conspired w/ Kostas Giziakis to launder money, S
knew it was from narcotics but G thought it was from gambling (had objection to laundering drug
money). Conspirators do not have to understand/agree to all ancillary details (eg why money was
dirty) just agree to “essential nature” of plan (laundering money made dirty by one of enumerated
causes). Unlike Rosenblatt, where one partner didn’t realize money was dirty (thought he was
helping with tax evasion of clean money), didn’t agree to “essential” nature.
Bilateral/Unilateral Views: some cts: conspiracy must be bilateral, if one is
faking/incompetent/undercover cop, no conspiracy; other cts: disagree, only unilateral agreement
needed
Specific Statutory Conspiracies
Racketeer Influenced and Corrupt Organizations Act (RICO)
a) Using/investing proceeds of “racketeering activity” (extortion, money laundering, murder,
etc) to acquire an enterprise
b) Acquiring/maintaining an interest in an enterprise through racketeering activity
c) When a person employed by or associated with an enterprise conducts or participates in the
conduct of the enterprise, directly/indirectly, through racketeering activity,
d) A conspiracy to commit any of the above offenses.
Enterprise must have some existence apart from that inherent in the racketeering activity
If conspirators share common purpose, each responsible for acts of others
 New concept of criminal “enterprise,” object of conspiracy not merely to commit
predicate crimes but to violate a substantive RICO provision
State Gang Laws: like RICO, attacks participation in criminal enterprise and provides additional
punishment for offenses if committed as part of an enterprise
e.g. CA (p. 367): (1) association of 3+ ppl, (2) common name or sign/symbol, (3) one of primary
activities = commission of certain specified criminal offenses and engages through members in a
pattern of criminal gang activity. Zermeno, one member assaulted a non-member and another
member prevented non-member’s friends from joining fight, pattern of criminal gang activity not
established (2nd member only aid/abettor, and they together commit 1 offense).
 Usually punish participation not membership (some states even found latter unconstitutional)
Punish using economic conception of deterrence, (1) sentencing enhancements bolster deterrence
re: group crime, (2) forfeiture laws seize fruits of crime
DEFENSES:
(1) Negative: P can’t prove all elements
(2) Positive:
(a) Justifications (self-defense/necessity, D made the right choice in a hard situation) or
(b) Excuses (duress/involuntary intoxication/insanity/sometimes self-defense: D made
the wrong choice but shouldn’t be blamed anyway)
SELF-DEFENSE
Classic
Nahak,
East
Dakota
Imperfect
SelfDefense
True Man
Doctrine
Battered
Woman
Syndrome
(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
People v. Goetz (NY 1986): D Goetz shot 4 unarmed kids on subway after they asked him for money,
had been previously mugged and maimed but took time to thoroughly shoot them all in special
“pattern of fire”. NY law: what D “reasonably believes” to be necessary to defend against what he
“reasonably believes” to be imminent force. D doesn’t have to be correct about force necessary but
must meet objective notion of “reasonableness” UTC (hypothetical reasonable person in D’s
circumstances, incl physical movements, relevant knowledge, physical attributes of those involved,
etc), differs from MPC: “culpability which arises from a mistaken belief in the need to use such force
should be no greater than culpability such a mistake would give rise to if it were made w/respect to
an element of a crime”D only needs to show “belief” force was necessary to prevail on self-defense
claim
After case, changed standard to closer to what Goetz requested, subjective standard of
reasonability from point of view of actor under circumstances
State v. Norman (NC Ct App 1988): D Norman killed her husband, who abused and prostituted
her, when he was asleep. Victim’s passiveness at moment of killing does NOT preclude
defense, considering BWS (jury Q as to reasonableness). 1. Appeared necessary? Yes, in
light of abuse likely to recur. 2. RPP belief? Yes, vulnerability, inability to withdraw. 3. Not the
aggressor? Yes, provoked considering totality of circumstances. 4. Didn’t use force beyond what
reasonably appeared necessary? Yes, battered victim does not need to wait for attack for
defense to apply, appeared necessary to protect self.
State v. Norman (NC 1989): Speculative beliefs about future harm do not constitute reasonable
belief of immediate harm, even where there is evidence of BWS, imminent harm or threat
are needed to justify deadly force (as a matter of law). Relaxed standards would make
homicidal self-help ok
 No majority position, cts divided
 Some suggest bad science and bad policy (faulty case studies, insufficient proof)
State v. Kelly (NJ 1984): Expert testimony should be allowed in BWS cases re: self-defense,
relevant to (1) D’s credibility re: beliefs, (2) reasonableness of D’s belief that she was in
imminent danger (needed to educate jury, but remains jury Q). Meets usual expert
requirements: (1) subject outside usual juror’s knowledge, (2) field is developed enough that
expert’s testimony can be sufficiently reliable, (3) witness has sufficient expertise.
NECESSITY: D chooses lesser of 2 evils. Justification/criticism: prevents greater harm vs. slippery
slope of letting individuals take law into own hands.
1. Imminent
Threat?
2.
Responsibility
for choice?
3. Homicide?
4. Contrary to
public policy?
CL
Threat 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)
Applications:
Prison Escape
Civil Protest
Unger, absence of Lovercamp factors not fatal, jury determination
Lovercamp: narrower, must be:
a. specific, immediate threat
b. no time for complaint/history of futility of complaints
c. no time/opportunity to resort to cts
d. no force/violence used in escape
e. prisoner immediately reports to authorities when safe
Schoon/Hill, necessity impossible in INDIRECT civil disobedience (e.g. trashing IRS office
or trying to kill abortionist) even if harm is imminent b/c:
a. no legally cognizable harm, so can’t be “lesser” evil
b. no causal relationship b/t conduct and harm averted (not likely to abate)
c. legal alternatives exist
A. Prison Escape
People v. Unger (IL 1977): D escaped low-security “honor farm” area of prison, claimed he did so to
escape assault and sexual molestation by other inmates with intent to return to the prison after he
got help. Testimony sufficient to raise necessity defense (broad) (D still exercises free will, not
compulsion, but chooses lesser evil), absence of one of Lovercamp factors not fatal, defense
should be allowed for jury determination.
DISSENT: necessity justification for prison escape must be narrowly available; should be
available, but narrowly, using:
Lovercamp factors:
(1) specific immediate threat (death/substantial bodily injury/sexual assault)
(2) no time for complaint to authorities/history of futile complaints
(3) no time/opportunity to resort to courts
(4) no force/violence used in escape toward prison personnel or innocents
(5) prisoner immediately reports to proper authorities when safe.
B. Civil Protest
United States v. Schoon (9th Cir 1992): Ds protested US involvement in El Salvador, trashing IRS office.
Asserted “necessity” of avoiding further bloodshed in El Salvador as defense. Must show: (1) chose
lesser evil, (2) acted to prevent imminent harm, (3) reasonably anticipated causal relationship b/t
conduct and harm averted, (4) no legal alternatives. Necessity never proven by indirect civil
disobedience, b/c (1) no legally cognizable harm, can’t be lesser evil, (3), no likelihood of
abatement, (4) legal alternatives exist (congressional action), even though (2) harm protested
may be imminent.
C.
Murder/Protest/Necessity?
U.S. v. Hill (N.D. Fl. 1994): D shot a doctor at an abortion clinic, raised necessity defense (intervening
on behalf of fetuses). Must meet 4 elements, clinic killing cannot b/c (1) no legally cognizable
greater harm, (2) imminent “harm” was not legally cognizable, (3) causal relationship not linked to
legally cognizable “harm”, (4) conflicts with public policy. Cannot be applied to justify averting
acts expressly declared by highest court to be constitutionally/legally protected.
CL: simple response, no defense to homicide
 Rationale: don’t want to let jury relitigate Roe
Regina v. Dudley and Stephens (Eng. 1884): Seamen lost at sea with a younger boy ate him after 20
days, no rescue in sight, he was likely to die first and they probably would not have survived without
eating him. No necessity defense in case of homicide, slippery slope (if principle admitted, could
excuse inexcusable crimes), if too harsh, sovereign can give mercy.
Like Dudley, most Am. Juris say no necessity defense to homicide, MPC disagrees (net saving of
innocent lives is ethically preferable, choice should at least be available)
DURESS: Rationales: voluntarist: D is excused for bad act b/c she could not resist the threat of force.
Where will is overborne it is impossible to deter and unjust to punish, expressive: D is excused from
bad acts if they reflect appropriate values. As with necessity, ct must weigh moral quality of choice
made. NO applicability to POWs post-Fleming.
CL
Death/GBH
D or close friend/relative
“Ordinary person” would yield
MPC
Unlawful force
Any person
Person of “reasonable firmness”
would not resist
Need not be imminent
(Toscano, threat of future harm
sufficed)
Self-created:
Must be imminent (ContentoPachon, followed on
plane/immediate threat to
family in Colombia, no escape,
reported to authorities ASAP)
NOT self-created
Involving murder:
NOT involving murder
Threat of:
Against:
Reasonable:
[BWS: compare Romero
vs. Webb]
Imminence:
Not recklessly, knowingly, or
purposefully created
(MAY involve murder)
People v. Romero (CA App Ct 1992): Ds Terrance and Debra Romero (battered woman) were
charged with robbery and attempted robbery, BWS testimony is as applicable to duress cases
as self-defense cases (robbery at batterer’s insistence vs. killing of batterer), relevant to
showing duress: reasonable doubt that D acted in exercise of her free will by showing she
committed the charged crime under threats or menaces sufficient to create a good-faith,
objectively reasonable belief that there was an imminent threat of D/GBH (not available
as defense to homicide).
U.S. v. Webb (5th Cir 1984): D June Webb charged with accessory to murder/2 counts injury to
child after being implicated in physical abuse of child (died after scalding by father). D argued
she did not seek medical care for child out of fear of husband (abuser), even if not under duress,
general involuntariness instruction should have been given. Less stringent instruction would
render meaningless, fear of reprisals does not constitute coercion strong enough to make
act involuntary, not reasonable despite BWS (contrast to Romero—more about character
evaluation than whether will is overborne?).
State v. Toscano (NJ 1977): D Toscano aided in preparation of fraudulent insurance claims
(conspiracy to obtain money by false pretenses) but said he did so under threats to self and
family, did not report to police, no compensation, moved/changed phone number/applied for
gun. Incorporates MPC approach, duress shall be a defense to crime other than murder if D
engages in conduct he was coerced to do by threat of unlawful force against him or another
which a person of reasonable firmness in his situation would have been unable to resist
(middle road, doesn’t ignore subjective estimate as to degree of danger but doesn’t bend to
weaknesses/strengths of particular defendant), evid enough to raise here.
Under CL, no defense (not imminent, just words), had other options (go to police, move, etc)
U.S. v. Fleming (C.M.R. 1957): D accused of collaborating with the enemy (propaganda) while a
POW, acted under threat of being marched to “Caves” where many died. D argued threat of a
slow death served as coercion as well as immediate threat of death, rejected, (1) acted under
mere assertion of threat (unclear if it would actually cause death), (2) danger must be
“immediate” such that D is at “last ditch”.
 After case, military code reformed so that there is NO duress defense to POWs
 Duress defense DOES apply to civilians
U.S. v. Contento-Pachon (9th Cir 1984): D swallowed bags of cocaine and transported them to US,
charged w/ drug possession and intent to distribute, D claimed he had been threatened in
Colombia, didn’t report to police b/c of corruption. D met elements of duress: (1) immediate
threat, (2) no escapability, (3) surrender to authorities when possible (D submitted to stomach
x-ray at security), but did not have necessity defense (1) source in natural rather than human
forces, (2) must act to promote general welfare (to be lesser evil).
Compare to Fleming (again, expressive evaluation of the choice made, who’s put at risk, etc).
CL (majority rule for duress), not so different from necessity defense in practice, not a lot of
use for duress, MPC diff (homicide defense) (e.g. faking insurance docs, Toscano—same result
under either?)
INSANITY: note: juries often convict as often under different standards, extra-doctirnal character
judgments at play. See long notes for various rationales.
M’Naughten Rule
-Majority
(reemerged after
Hinckley)
-Cognitive
Durham Rule
-Volitional
-Used briefly
MPC Rule
-Volitional
Guilty but Insane
Abolition/MR Model
(UT, ID, KS, MT)
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
D excused ONLY when insanity completely negates an element of a crime. If D had
intent to commit act, liable 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
1. M’Naghten Rule (reemerged as majority), cognitive:
(a) D does not know nature/quality of act he is doing (e.g. mother squeezing baby thinking it’s a
grapefruit) OR
(b) if D does know nature of act, does not know wrongness (police officer thinks president
ordered him to kill someone)
Criticism: unfair/out of touch w/medical science in compartmentalizing brain, worse for
society (more convictions leading to release back into the community after as opposed to real
treatment), unrealistic for experts (“professional perjury” to testify as to knowing right/wrong).
1.
2.
3.
4.
5.
Durham Standard, causal: expanded definition (used briefly), D excused when person
would not have committed the crime but for mental illness. More acquittals, shifted burden
of proof of sanity to P (Green, TN)
Criticism: eliminated right/wrong dichotomy and ended expert problems but fails to give
factfinder any real standard by which competency of D can be judged
MPC, volitional: D excused when a mental disease impairs her capacity to control her
behavior (“irresistible impulse” standard, excused if mental disease impairs control),
similar to Durham [Freeman, 2nd Cir, Bobbitt, less stringent instruction]
Post-Hinkley Trend: backlash, compromise b/t M’Naghten and Durham and/or changed
burden and standards of proof
Guilty But Insane: some juris allow stricter definition of sanity but retain different penalties
for those whose mental illnesses do not rise to level of insanity
Abolition and the Mens Rea Model (ID, UT, KS, MT): abolished as defense to crime, insanity
only admissible as it relates to a material element of a criminal offense, e.g. intent; only
where insanity completely negates a material element is D acquitted (if person had intent to
commit a particular act, she is held liable even though definition of crime may req more
specific MR, like malice), removes P’s burden of proving specific intent re: wrongfulness
Some cts reject, finding insanity defense part of due process
US v. Freeman (2d Cir 1966): D found guilty of selling narcotics, was himself a longtime heroin addict
and alcoholic who had suffered repeated brain traumas and delusions, expert testimony under trial
ct’s M’Naghten test had conflicted as to whether he knew the difference b/t “right and wrong.” Ct
adopted MPC test as best [rationales listed above]
State v. Green (TN 1982): D Green, a paranoid schizophrenic with longtime symptoms, killed a police
officer, had previously had some interactions with people and police officers where he seemed
normal, but evid of schizophrenia and violence were also overwhelming. Under Durham standard,
P burden to prove sanity beyond reasonable doubt, here they didn’t (acts at time of killing were
arguable consistent with sanity AND insanity, burden not met (should’ve used med experts to stand
alone, counter D’s)
Bobbitt: less restrictive “irresistible impulse” instruction given, req’d only that her “mind was so
impaired by disease that she was unable to resist the impulse to commit the crime”, squeezed BWS
into MPC, but drs testified that she was too purposeful/goal-oriented to meet the normal definition,
which was “impel random attacks on friend or foe alike w/o regard to consequences”
 Choice of insanity defense over self-defense (former doesn’t require cognizance, latter does to
some degree)
State v. Guido (NJ 1963): D killed her sleeping husband, dr experts conferred with defense atty and
changed their rpt (not in terms of actual medical findings but to reflect changed understanding of
what constituted legal sanity). Ct said too much of a big deal was made of this at trial b/c can’t look
to experts to provide definition of what is “disease” relieving blame (here under M’Naghten), that’s
an ethical question beyond scientific truth (jury Q).
EXTRA STUFF
Why Punish?
A. Optimal Deterrence (“utilitarian”)
Punishment can benefit society as a whole.

Jeremy Bentham, Principles of Penal Law
Humans’ passion for calculation allows society to set up
disincentives to crime, though effect of punishment is limited by
uncertainty and distance. Punishments may be too small or great.
Greater danger lies in error on minimum side (inefficacious), but
greatest disposition to err is on side of excess due to natural
antipathies of humans (lawmakers).

Jeremy Bentham, An Introduction to the Principles of Morals and
Legislation
Laws’ purpose is to maximize happiness, but “all punishment is in
itself evil.” Utility dictates that the increased happiness resulting
from a punishment must outweigh that evil. In all cases,
punishment should be avoided if groundless, inefficacious,
unprofitable, or needless.

Consider hubcap problem: 1/5000 caught, $50 each, deterrent fine
would be $250,000. Imprison?  Concern with substitution
effect: why steal hubcap when penalty same as robbing bank.
Deterrence can be used to justify v. strict or no penalties.
B. Individual Desert (“fairness”)
Offender should be punished because they deserve it, not for greater
social end.

Immanuel Kant, The Philosophy of Law
Individuals should not be treated in terms of their purpose to
another (as in optimal deterrence). If guilty, punishment is a
categorical imperative.

Robinson: If you treat people fairly, they’re more willing to respect
law/obey it. So if your interest is utility, it can still make sense to
punish deserts (Kant and Bentham not incompatible).
C. Expressive Condemnation (“social meaning”)
More descriptive than normative; asserts that punishment makes value
statement for society

Jean Hampton, An Expressive Theory of Retribution
Action is wrong only if it expresses something about the person
being harmed. Crime demonstrates that offender believes worth
of victim low so as to make such treatment permissible.

Jean Hampton, The Retributive Idea
“If punishment is a protection of one’s value, then its infliction on a
wrongdoer is a reflection of that value.” Insufficient punishment
may be interpreted as placing lower value on victim (or opposite).
**Deterrence/individual desert/expression often argued together,
not against each other (e.g. justify capital punishment position
each way)
State v. Chaney (Alaska 1970): woman robbed and repeatedly raped, Chaney
sentenced to 1 year w/ early parole possibility. Light sentence appealed as it would
not reform or express community condemnation.
People v. Du (CA Ct. of Appeal 1992): D Soon Ja Du shot and killed Latasha Harlins
during scuffle at her liquor store over juice she thought Harlins was stealing.
Claimed she did not know how gun worked and was in fear of gang violence in area.
Gun was faulty. “Voluntary manslaughter” but 10-yr prison sentence
suspended/given probation due to lawful/defensive gun ownership, no record,
provocation. Raises race questions.
How Do We Punish?
United States v. Bergman, S.D.N.Y. 1976: D Bergman, elderly man of widespread
popularity, owned nursing homes and defrauded Medicaid/submitted false
partnership returns. No need for rehabilitation (unlikely to re-commit). Court can
take age and reputation into account in sentencing, but will still punish for
general/indiv. deterrence and to avoid depreciating seriousness of crime.

Restorative Justice: Dan M. Kahan, “What’s Really Wrong With
Shaming Sanctions.” In searching for an alternative to the U.S.’s
dependence on short-term incarcerations for first-time offenders,
restorative justice may be better than shaming sanctions. Avoids
“zero-sum game” of “symbolic politics. “ “Combines degradation and
rehabilitation, communal responsibility for ameliorating crime with
individual accountability.”

Accountability-Enhancing Sanctions: Donald Braman, “Punishment
and Accountability.” Across many social groups, significant
populations desire accountability-based sanctions (work, drug
treatment, etc) instead of merely mass incarceration. Seen as
providing greater return to society and offender’s
families/communities.
What to Punish?

Joseph R. Gusfield: “On Legislating Morals: The Symbolic Process of
Designating Deviance.” Government’s act may have symbolic importance
because it affects designation of public norms. “The courtroom decision or
the legislative act often glorifies the values of one group and demeans those
of another.”
Wisconsin v. Mitchell (U.S. 1993): D Mitchell convicted of aggravated battery of white
boy attacked out of racial prejudice. Because of intention, Court sentenced Mitchell
to higher than usual prison term (within WI statutory provision). Mitchell
challenged under 1st Amendment right to free speech. SCt. Says:
(a) Physical assault not “expressive conduct” protected by 1st Amendment
(b) Penalty-enhancement provisions acceptable because of state interest in
“bias-inspired conduct” that is “thought to inflict greater individual and
societal harm; interest is “over and above mere disagreement with offenders’
beliefs and biases.”
Bowers v. Hardwick (U.S. 1986—overruled, Lawrence v. Texas, 2003): D Hardwick
convicted of sodomy in Georgia, argued statute violated constitution based on 9th
Amend./Due Process of 14th Amend. S.Ct. says precedent protects
marriage/family/procreation, so protection doesn’t extend to homosexuals, plus
Court should be wary of expanding Amend. rights.
Lawrence v. Texas (U.S. 2003): Refers to Stevens’ dissent from Bowers and states that
fact of historical moral condemnation is not sufficient to continue illegalizing and
intimate decisions are “a form of ‘liberty’ protected by the Due Process clause.”

Patrick Devlin, The Enforcement of Morals
Society held together by common morality, so society is justified in taking
steps to protect deeply-held beliefs (e.g. condemnation of homosexuality).

Dan M. Kahan, “The Secret Ambition of Deterrence”
Expressive condemnation view—Hate crime sentences send more powerful
message to hate criminals whose acts connote more profound denial of
worth of victim than regular crimes. Also affirm community value of
equality.

Richard A. Posner
We shouldn’t have greater punishment for motivations we find repugnant,
but there can be merit to hate crime sentencing based solely on
dangerousness (less protection for vulnerable groups, greater psych damage
to victim). Person seeking to harm group more dangerous than one seeking
to harm individuals.
THE INSTITUTIONAL DIMENSION: Who Should Say What the Law Means?
1. Courts vs. Legislatures

Desuetude: failure to enforce law in face of widespread violation invalidates
law. U.S. generally averse to desuetude (sep-of-powers concern, e.g. Stowell).
But some criminal jurisprudence supports (e.g. Poe v. Ullman, S.Ct. 1961, said
S.Ct. doesn’t need to address constitutionality of CT anti-contraception
statute b/c of virtual nonenforcement).
Commonwealth v. Stowell (Mass. 1983): MA adultery statute argued to be
unconstitutional b/c of invasion of right to privacy (14th Amend.) as set forth in Roe
v. Wade. Ct. says right to privacy does not extend to private, consensual acts that
state retains power to police; absent unconstitutionality, must address to legislature.

Richard Posner, Sex and Reason: CT/MA anti-contraception statutes could not
be maintained for plausibly secular goal, must be relig. Motivation->not ok.

Concept of Legality: Focused on notice. (1) Bar on retroactivity, (2) strict
statutory construction, (3) bar against vague statutes.
Legality: conduct must be specifically prohibited by law before it can be punished,
and laws cannot be so vague that a person does not have fair notice to whether his
conduct constitutes a crime. Purposes: (1) provides notice as to what is lawful, (2)
confines discretion of police in enforcement, (3) prevents judges/juries from
arbitrarily creating new crimes, (4) ensures that criminal law only operates
retrospectively.
Keeler v. Superior Court (Cal. 1970): P Keeler wanted writ of prohibition against
holding him guilty of murder (kicked cheating pregnant ex-wife, caused death of her
fetus) b/c law didn’t specify that killing viable fetus = killing person. Court cannot
construe statute in non-evident way (exceeds sep of powers), benefit of
construction must go to defendant; doing otherwise violates due process (defendant
does not have notice of what law expects). Note: other states handle diff (e.g.
Hughes in OK, ct. said would not prosecute in instant case before them, but in future
statute interpreted to include killing of fetus).

Issues of expressive condemnation in Keeler affected by debate about
abortion at the time (what would it say to make fetus a separate crime?).
Also, issue of lenity affects (idea to construe criminal statutes narrowly to be
fair to defendant when ambiguity exists—lots of exceptions though e.g. RICO)
United States v. Zavrel (3rd Cir. 2004): D Rosemary Zavrel mailed 17 envelopes of
cornstarch during anthrax scare to various officials/locals/president. Violation of
18 USC §876 because it constituted a “communication” which a reasonable person
would perceive as a “threat of harm” under the circumstances. DISSENT: Zavrel’s
act communicated “I just poisoned you,” not future “threat to injure,” interpreted
too broadly (wants lenity).
2. Courts vs. Community
City of Chicago v. Morales (US 1999): Chicago City Council’s Gang Congregation
Ordinance, prohibiting “criminal street gang members” from “loitering…in any
public place” deemed too vague, violating due process. Vagueness can invalidate
crim law for (1) failing to provide notice of prohibited conduct and (2) authorizes or
encourages arbitrary/discriminatory conduct. Concurring: too vague as it was but
suggests it could be re-worded to be ok. Dissent: Not too vague, relies on
appropriate enforcement which shouldn’t be addressed unless shown to be
inappropriate. Also prioritizes gang members’ rights over regular citizens’.
 Amicus brief from Chicago Neighborhood Organizations: Ordinance was a
“permissible balance between liberty and order,” striking down does disservice to
community, minority communities now represented in law enforcement and want
to use it to create greater safety in their communities, ordinance = more effective
“social norm”-changing strategy than crackdowns.

David Cole p. 87: Idea that police discretion and discrimination are no longer
of concern ignores persistent discrimination (e.g. bus sweeps, traffic stops),
plus minorities disproportionately represented in law-making to begin with
and also able to discriminate against own groups in enforcement positions.
3. The Jury
Duncan v. Louisiana (US 1968): Racially-charged scuffle, charged with battery, not
given jury trial. In crime determined to be serious and not a petty offense, accused
guaranteed a jury trial regardless of state rules thanks to 14th and 6th Amendments
(does not want to draw serious/petty line in opinion). DISSENT: States have right to
make own rules re: jury trials by crime, political process/courts available to correct
“experiments” that prove unfair.

F.R.Crim.P. 23(a): (p. 96) cases req’d to be tried by jury shall be so tried
unless waived by Defendant w/ Court approval.

Kalven and Zeisel, The American Jury: advantages/disadvantages to juries:
competence? Will they follow law? Uneven administration of justice?
United States v. Moon (2nd Cir. 1983): Moon charged with false income tax returns,
got massive negative press so wanted bench trial (not jury trial). Insistence on jury
trial does not violate due process/fair trial if jury chosen carefully (as here).
Decision based on Singer v. U.S., which left open possibility that in a special case a
Def. might require bench trial over pros. Objection (but Courts almost never find
this situation to be satisfied).
--Nullification—
United States v. Dougherty: “DC Nine” case, judge refused to instruct jury as to their
right to acquit w/o regard to law or evidence. Court does not need to instruct jury
as to nullification prerogative; too dangerous to expand “self-initiated exception.”
(Similar to judge’s reasoning in movie!) DISSENT: Lack of nullification instruction =
“deliberate lack of candor,” power to nullify should be explicitly stated.

Irwin A. Horowitz’ studies on effects of jury instructions  (1) instructions
do make a diff in how juries perform (esp. “radical nullification” instructions,
(2) effect of nullification depended on nature of case, (3) lawyers’ arguments
mattered more than judge instructions.

Racially-motivated Verdicts:
(a) p. 103 “Color-Blinded” article: 66% of blacks believe criminal justice
system is racist compared to 37% of whites; some choose to protest
injustice by verdict and refuse to put more blacks behind bars
(b) Paul Butler, “Racially Based Jury Nullification: Black Power in the
Criminal Justice System”: moral responsibility of black jurors to
emancipate some guilty offenders, esp. in “victimless” malum prohibitum
cases.
(c) Randall Kennedy, Race, Crime, and the Law: Butler’s call for nullification
may call into question rights of blacks to be selected for jury service and
based on destructive desire to care about one’s “own” race.
(d) P. 107 Fully Informed Jury Association (FIJA) distribute info, want jurors
to be informed of nullification power

Braman, “Criminal Law and the Pursuit of Equality” p. 109: Improving juries
and results: (1) Jury polling, egalitarians should harness good sense of public
by forcing judges/legs to pay attn to concerns of people at sentencing; (2)
universalizing jury service, mandated/paid one week a year, would better
protect minority defendants and right to access of the jury by minorities.

Judge James Gwin: study on jury polling showed median juror recommended
sentences generally lower than Guidelines.
Paul Butler Reading:
Nullification: advocates use in drug cases (possession/dealing), 2 purposes: self help
(benefits community) and expressive
Problems with current incarceration rate:
--“Tipping point” problem: can’t lock up all the criminals (plus replacement effect),
and when too many are locked up communities become MORE unstable
(destabilizing families on the outside, unemployed males post-release, mass
incarceration makes crime normal/less respect for law)
--$60 billion a yr (not incl courts)
--Racial disparity (e.g. black/white, 8/1)
--Good government (e.g. crack cocaine penalties, need to balance democracy and
expertise)
--War on Drugs: has become focused on punishment not treatment, dramatic
increase in prison population attributable to this, 1/5 fed prisoners are low-level
drug violators (take nonviolent offenders, expose them to worse ones, return to
community where they’re now more likely to commit crimes)
--Compare to Prohibition: doesn’t get rid of product but creates illegal market that
better-compensates suppliers; increase in users, vast army of lawbreakers, open
dismissal of law, rise in crime
--Alternatives: every $1 invested in treatment saves $7.46 in other costs, 96% fewer
crimes w/lower cost drug supply, ½ of property crimes/robbery/burglaries result
of high drug costs. Harm reduction programs: (1) decriminalize small possession,
(2) treatment programs available for all addicts, (3) needle-exchange and drug
testing servs should be available to reduce risks of disease/overdose
Broken Windows Policing
Seeing someone doing something = you’re more likely to do it, broken window
indicates lack of monitoring (1 week vs 1 day), policing designed to be a less
intrusive form of crime control: manage highly visible minor crimes, clean up
streets, reduce other forms of crime
Compstat: intense pressure to reduce crime statistics every week/year, incongruous
w/hospitalization rates for assaults, Schoolcraft: issue is statistics fudging
Revealing drugs etc: defenses—duress? Mistake of law, relying on official to
interpret? Problem: need someone high enough up to be authorized to interpret
(when needed in the time/place), police officer not sufficient, also would be
problematic to require police to tell truth at all times. Entrapment? Problem:
objective (behavior of govt official is suff to cause reasonable person to engage in
the illegal behavior) vs subjective (whether person would’ve committed crime but
for actions of the state), NY stat uses objective (tougher) standard
Federal Entrapment Doctrine
1. Govt inducement (persuasion/coercion) of the crime—shown if govt
created a substantial risk that an offense would be committed by a person
other than one ready to commit it, AND
2. D’s lack of predisposition to engage in the criminal conduct—focuses on D
was an unwary innocent vs. unwary criminal who readily availed himself of
the opp to commit the crime, est. by “ready commission” of the act
Hossain: wanted a loan to keep his pizzeria afloat, offered a $50k loan all of which he
would pay back except $5k, told money came from sale of terrorist missile launcher
by govt agent (underlying crime was laundering money). Wanted to pursue D Aref
but approached through Hossain b/c he needed money.
Predisposed? No
Induced? Yes, but slightly harder
Fort Dix Conspiracy: Criminal informant (who would otherwise be deported)
befriended (at FBI direction) group of 5 men who wanted a questionable video
copied at Circuit City; bought rifles supplied by FBI and found guilty of conspiring to
kill American soldiers, at informant encouragement, even though there were no
specific targets and they were months away from any concrete plan. Rationale:
safety > privacy, can’t afford to be wrong.
Detroit Sleeper Cell: Prosecution fell apart after evidence of extensive evidence
tampering arose
Adnan Mirza—conspiracy or entrapment? FBI agents posed as friends, recorded
conversations and took pictures w/guns, reported to be “training”/sending money
to Taliban (was $900 he raised for questionable or righteous purpose?), refused
plea bargain, 15-yr sentence
“Legitimacy/Deterrence Effects in Counter-Terrorism Policing”
Among Muslim Americans in New York:
1. Central role of procedural justice in policy formation/implementation in shaping
cooperation w/anti-terror policing efforts.
2. Instrumental explanations of cooperation receive only weak support (cooperation
not generally linked to views of whether terror is a serious problem, view on police
presence, etc)
3. Religious/political factors not central to shaping cooperation, although
perceptions of discrimination were