[Nature of Law, Crime, and Punishment]
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Importance of jurisprudential and policy issues
Note: Only actors with discretion may use policy concerns in their decisions
Goals of Criminal Law
Deterrence
1. General (society)
2. Specific (individual)
Rehabilitation
Incapacitation/incarceration: Take them out of society where they can’t do harm
Retribution justice/desert: The need to give punishment that they merit
Potential Conflicts: Potential conflicts between these various considerations
 Incapacitation and just punishment may conflict
 Rehabilitation may conflict with the notion of retribution
o What incentives to criminals have to be rehabilitated if they are not released
 Retribution interferes with deterrence because deterrence might be achieved through grossly
harsh punishments
Goals of Criminal Law and the Death Penalty
Considerations
 Does the person have a disability?
 Is the person a juvenile?
 Are there aggravating circumstances?
o Killing for financial gain, killing a police officer/prison guard, killing more than one person,
killing in order to escape from custody or arrest, history of violence
 Are there mitigating circumstances?
o Doubt about guilt, turbulent family history, severe emotional disturbances, good behavior
while awaiting trial, commission of crime under duress or the influence of drugs/alcohol
Arguments FOR capital punishment:
 Deterrence
 Retribution
 Incapacitation
Arguments AGAINST capital punishment:
 Discrimination in application (race, class)
o McClesky v. Kemp – statistics show that discrimination based on race of the victim (Ds who
kill white victim more likely to get death penalty)
 Majority opinion: Requires individualized proof of discrimination
 Costs more than life in prison (appeals, etc.)
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[Elements for Criminal Liability]
Actus Reas
A voluntary act
 CANNOT be an involuntary reflex
o Examples: Sleepwalking
o People v. Newton- plane inadvertently landed in NY; D was involuntarily in NY with a gun
 cannot be charged with violating NY law
 Mere thoughts do not count
 Words can be actions – “shoot em”
o Some crimes are solely committed by the act of speech
 Act under duress is still a voluntary act
Omission or failure to act can have criminal liability if
 Statute
o Example: good Samaritan laws; tax returns
 Contract
o Example: lifeguard, nurse
 Relationship between the parties
o Child, spouse
 Jones v. US – Son in poor health and severe neglect dies  charged caretaker with
involuntary manslaughter
 Voluntary assumption of risk/ beginning to rescue
o Particularly if it prevents others from rescuing
o Example: Say “I am going to rescue you” see its somebody you don’t like and then swim
away
 Where your conduct creates peril
o Example: pushing someone into a pool knowing that they cannot swim
Intoxication
 Involuntary – no actus reas
 Voluntary – actus reas present; may not have mens rea defense
o Trier of fact usually not in the favor of this argument
Mens Rea
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Culpable state of mind; desire or intent to commit an unlawful act
Factual information is key: What did D know and understand?
Statutory language
 Intentionally or with intent to
 Knowingly or with knowledge that
 Frequently or with the intent to defraud
 Purposefully or for the purpose of
 Willfully, maliciously, or comply
 Without intent [use objective standard]
o Reckless – gross or outsized negligent
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o Negligently
Degree of fault
 Subjective fault
o Actual bad mind or intent to cause harm
o Does not need to be reasonable
 Objective Fault
o Recklessly or negligently caused harm
o Court can say a “reasonably prudent person: would NOT have done that act
 Strict liability
o Liability without regard to the state of mind; one CANNOT offer a mens rea defense
 Example: statutory rape
 Knowledge of the age is not required, nor is a reasonable belief that the
victim was over the age a consent. Even a reasonable mistake is not a
defense
o Malum prohibitum crimes (wrong because they are prohibited) and “public welfare” crimes
o Example: violating traffic safety regulations
o The only defense permitted is an actus reas defense
o How to know when it is a strict liability crime:
o The crime is administrative, regulatory, or moral
o No adverbs in the statute
Intent Requirement
Larceny intent to permanently deprive rightful owner of property
 Be aware that the property belonged to another, intent to deprive forever
 Even an unreasonable mistake of fact could be a defense in some jurisdictions
Negligent homicide; negligently causes another’s death
 The extent to which the individual deviated from a reasonable standard of care
Specific Intent and General Intent Crimes
Specific Intent Crime
 Intent to bring about a specific result/harm
o Example: attempt, first degree murder, embezzlement, robbery burglary
o Example: Larceny
 Intent to permanently deprive rightful owner of property (must know that she is
not entitled to it)
o Example: burglary
 Actor must have broke and entered with the intention of committing a felony
therein
 Defense can be formed around the notion that the actor didn’t intend the particular result
General Intent Crime (catch all category)
 Intent to commit an action but not necessarily to bring about result
 Example: Involuntary manslaughter
Transferred Intent
 Meant to kill a man but accidentally kill the woman next to her
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o Two crimes – murder for the dead woman; attempted murder for the man
NEVER MERGE ANY CRIMES THAT HAVE DIFFERENT VICTIMS
Defenses to Mens Rea and Actus Reas Elements
Intoxication
 Voluntary – there IS actus reas
o Self-induced (includes addicts/alcoholics)
o Defenses only to specific intent crimes
 MAY negate the mens rea required by the crime
 Courts VERY reluctant to do this
 Involuntary—NO actus reas
o Forced to drink, or something dropped into the drink
o Defenses to ALL crimes (including strict liability)
Mistake of Fact
 Can negate liability EXCEPT in strict liability crimes
 Is a defense against liability if it negates the mens rea required to commit the crime
o Specific Intent Crime – Even an unreasonable mistake of fact can negate intent
 Example: Larceny requires a knowledge that the property belongs to another SO if
he thinks it is his and takes it that is an honest and unreasonable AND can be a used
as a defense
o General Intent Crime – Only a reasonable mistake of fact can negate the required intent
 Example: Rape; unreasonable mistake of fact would not serve as a defense BUT a
reasonable mistake of fact would serve as a defense
Gordon v. State: Boy did not know that he was not able to vote because he didn’t know his real age
Mistake of Law
 No excuse; CANNOT be a mens rea defense
 Rationale: Inherent difficulty of proving whether or not the defendant knew of the law; makes all
law abiding citizens responsible for all laws;
 Exception:
o Ignorance of the law is a defense IF it negates the mens rea required to commit a crime
 BUT most crimes do not require proof that the defendant was aware of the law SO it
RARELY negates mens rea
o IRS allows good faith mistake of the law to be a defense
o People v. Wendt: D charged with willfully failing to file a return of income tax 
willfully here means that D did not do something although he was aware it was a
legal requirement
o When the law is not published (no significance today)
o When the mistake arises from a reasonable reliance on:
o A statute that is later determined to be invalid
o A court decision
o A public official who is in a position to interpret the statute
 Example: attorney
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[Homicide]
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Intent to kill OR intent to do serious bodily harm
Difference between 1st degree murder and voluntary manslaughter
o Provocation
Difference between depraved heart murder and involuntary manslaughter
o Depraved heart murder: Requires a plan and strong likelihood of death
o Involuntary manslaughter: A high degree of likelihood of substantial harm
1st Degree Murder
Elements
 Premeditated unlawful killing of a human being by another human with malice aforethought
 Malice aforethought = defendant intended to kill
 Specific Intent Crime (because of malice requirement)
 Premeditated and deliberate
Defenses
 Make the case that the defendant did not have premeditated thoughts
Important Considerations
 What did D do prior to the killing (example: planning)
 Prior relationship/conduct with the victim from which the jury can determine “motive”
 Nature of killing from which the jury could infer there was “preconceived notion”
Felony Murder
 Generally a subset of 1st Degree Murder
 Allowed when there are predicate felonies
o Arson, burglary, kidnapping, rape, or robbery
 Applicable when murder is the inadvertent result of a felony (or attempted felony?)
 In commission requirement
o Many jurisdictions define duration of the felony to continue until the felon reaches “a place
of temporary safety”
 Rationale: Intended to deter negligent and accidental killings during commission of felonies
 People v. Robertson – D shot gun in the direction of people trying to steal his car  found guilty of
felony murder because it was a felony to recklessly shoot your gun up into the air
Where one felon is killed by a non-felon (victim or police), courts disagree on whether the other felon is
liable for felony-murder
 Majority Approach: Agency Doctrine
o Felony murder does NOT apply when “death directly caused by an innocent person”
o Only way felony murder applies is if the agent or accomplice in the underlying felony
commits the murder
o Defendant is NOT liable for the death of a co-felon as the result of resistance on police
o Also – police killing felon is lawful – robber cannot be charged with a lawful act
 Minority Approach: Proximate-Cause Theory
o Felony murder CAN be applied to death caused by non-felon
o Causation + felonious state of mind is all that is required
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o Rationale: By committing the underlying felony the defendant has proximately caused the
homicidal act
o State v. Sophophone: Dissent argued that “D had set in motion dangerous events”
EVEN THOUGH D was in the back of police car at time of death
Defenses to Felony Murder
 Defense to underlying felony = defense to felony murder
 The felony they are committing must be something OTHER THAN killing
 The deaths must be foreseeable (causation)
 Once the defendant has reached a point of temporary safety, no longer in the window for felony
murder
o Example: Spends the night at mom’s house
2nd Degree Murder
Elements
 Reckless activity, subjective appreciation of the risk
 No premeditation OR
 Premeditation intending to cause seriously bodily injury to the person
 If danger is completely obvious and a reasonably prudent person would know the risk and jury
can make the inference that the defendant understood/was aware of the risk/danger
Depraved Heart Murder
Elements
 Reckless activity with appreciation of the risk (subjective standard)
 Requires subjective appreciation of the risk
o BUT fact finder may infer appreciation of the risk
o People v. Knoller: Dog owners warned the dogs are dangerous; dogs attack and kill a
woman  D found to have “conscious disregard for life”
o Commonwealth v. Malone: Russian roulette; D thought bullet was in 5th chamber but it
went off at 3rd shot; jury found a callous disregard for life
 You CANNOT have attempted depraved heart murder
Prosecution’s Role
 Make the case that the danger is patently obvious
 Argue elements of awareness
o Difficult to prove subjective awareness
Voluntary Manslaughter
Elements
 Deliberate unlawful killing that is the result of provocation (provoking element)
 Partially mitigated by provocation
o Rationale: Someone should be convicted of a lesser offense if they are provoked
 Does NOT require a subjective appreciation of the risk
 NOT an appropriate charge if there has been a “cooling off” period
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o Ask: Would a reasonable person have cooled off?
o Children and mentally retarded have a different standard (?)
Killing from passion (ALWAYS must be passion)
o Modern Approach:
 Look at the context
 Test: Would a reasonable person be provoked to commit homicide under those
circumstances
o Traditional Approach:
 Provocative Acts
 Battery
 Mutual combat
 Assault
 Illegal arrest – modern trend is to discount this
 Adultery
 Injuries to close relatives
o State v. Thronton: Husband shoots man having sex with his wife  adultery is often an
provoking event in voluntary manslaughter
Involuntary Manslaughter
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Hard to draw a line between involuntary manslaughter and depraved heart murder
o Commonwealth v. Welansky: Emergency exists were locked, nightclub full over capacity;
fire kills people  nightclub owner found guilty of involuntary manslaughter b/c he should
have known (objective standard)
o Commonwealth v. Feinberg: Knows the customers are drinking poisonous product 
charged with involuntary manslaughter
Elements
 Unintentional killing involving recklessness or gross negligence
o Example: Drive 100 miles per hour and kill someone
 Sometimes involving unlawful acts NOT in felony murder statute
 Various terms used to describe the mens rea requirement
o Wantonness, willfulness, recklessness, indifference, disregard, culpable negligence,
criminal negligence, gross negligence
 Does NOT require subjective awareness of the risk
[Rape]
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Common law: Unlawful sexual intercourse with a woman against her will by force or threat of
immediate force
Statutory Changes
 Allowing wives to charge for rape
o Though less serious penalties for husbands usually
o People v. M.D.: Marital rape with egg
 Sometimes extended to cohabitants
 Homosexual rape is now recognized
 Removal of force requirement
o Some courts still require some level of resistance
 It can be argued that resisting is dangerous
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Woman may be in too much fear to resist
Absence of resistance could go towards D’s belief that he was honestly and
reasonably engaging in consensual sex
o Commonwealth v. Berkowitz: College dorm; complaint that victim did not “actively resist”
Courts generally hold that a victim’s fear of D suffices to establish the existence of force and
excuses her failure to resist only if that fear is reasonable and honest
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Consent Defense
 Actus Reas: Was there consent?
 Mens Rea: Did D believe that there was consent?
o Honest and Reasonable Belief is ALWAYS a valid defense
o Honest and Unreasonable Belief NOT a defense
o Victims are considered unable to consent when they are unconscious or mentally retarded
 Director of Public Prosecution v. Morgan: 4 men and husband rape wife (husband cannot be
charged)  Ds argue that rape should be a specific intent crime; unreasonable belief should be
considered a defense
Strict Liability Standard
 Consent not relevant
 Even reasonable mistake of fact is NOT a defense
 If D knows of special sensitivity they are liable
Statutory Rape
 Most states refuse to recognize mistake-of-age defense in statutory rape cases
o But consent may be a mitigating factor in sentencing
 Almost all statutory rape laws are now gender neutral
 Even if D gets lenient punishment, lingering punishment with sex offender registry requirement
 People v. Hernandez: D has sex with girl 17 years and 9 months old  court rules that the jury
should hear Ds affirmative defense (judicial activism run amuck)
 Garnett v. State: 20 year old retard has sex with 13 year old girl  no mens rea element in the
statute; D charged with rape
Fraud
 Fraud in Inducement – NOT RAPE
o Where victim understands the sexual nature of the act, but consents to it because of some
fraudulent misrepresentation
 Fraud in the Factum (consent to something else)
o Example: impersonating husband (consenting to sex with her husband); gyno examination
with unexpected penetration
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[Theft Crime]
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All consolidated into general theft crime
o Reasoning – D cannot avoid conviction by saying “it was embezzlement and not fraud”
o Duress is a defense to theft
Larceny
Elements
 Trespassory taking and carrying away of the valuable personal property of another with the intent
to permanently deprive the person entitled to possession of the property
o Trespassory taking is actus reas requirement
o Intent to steal is mens rea requirement
o Possession, not ownership is key
 Example: Pawn shop owner has possessory interest even though D is actual owner
of the item (“owner” can be found guilty of theft)
 Specific Intent Crime
o Doesn’t matter how reasonable the belief was; an unreasonable belief is fine
o Law doesn’t require reasonability
Rationale
 Protection of property and the maintenance of peace
o Violence is likely to result, we want to prevent that
Robbery
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Combination of assault and larceny
Elements
 Larceny from a person in his presence by force or threat of force
o Assault need not involve the actual owner
o Threat of immediate force at 3rd person can suffice as force
 Example: Man and woman walking up street and D points gun at man “your money
or his life” – enough to be robbery
o Threat of force (fear)
 Unreasonable fear is sufficient in most jurisdictions
o Minimal violence is all that is needed
 Administration of drugs or alcohol is enough to render victim helpless can be force
sufficient for robbery
Example: State v. Mejia
 D Shoots victim to get $750 back, D accused of felony murder with robbery as the predicate felony
 D uses “claim of right defense” to get rid of the predicate felony of robbery
 Court made a policy decision and disallowed claim of right defense in an armed robbery case 
didn’t want people to take justice into their own hands
Armed Robbery
 Hidden weapons can count
 Sometimes pretending you are armed can count
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Note: You cannot rob a corpse because corpse cannot feel fear
 You can commit larceny against a corpse
Burglary
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Strictly speaking not necessarily a theft crime
Rationale: Right of person to have peaceful enjoyment of his home
Elements
 Breaking and entering of a dwelling of another at nighttime with the intent to commit a felony
o Intention to commit felony inside MUST exist at the time of breaking/entering or it is NOT
common law burglary
o Breaking and entering can be…
 Actual breaking
 Constructive breaking
 Example (maid is given a key but comes at 3 am)
o Rape or Murder could be predicate felonies for burglary
o Does not matter if felony is successful
 Only intent is important
Modifications
 Doesn’t need to be a dwelling, can be a business as well
 Doesn’t need to be at night
 Some have even gotten rid of the breaking and entering requirement
Claim of Right Defense
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“I believe this is my property” – negates mens rea
Defense can be made if honest belief is held for right to the property
 Even if the belief was unreasonable
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D’s belief in entitlement can provide defense
Courts are moving way from letting this to be a defense for robbery (due to forcefulness)
o Rational: Courts wants to stop forcible self-help that might lead to death
Note: In larceny by stealth courts more likely to accept “claim of right” defense (repossessing cars as an
example)
Other Types of Larceny
Larceny by Trick
 Consensual turning over of property for limited period of time
o Example: Car rental and then drives off with the car
 All elements of larceny PLUS - When D uses deceptive means to obtain possession, but not
title or ownership, of another’s personal property
Embezzlement
 Fraudulent appropriation of property of another by one who has been entrusted with possession
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o Fraudulent = intent to deprive, specific intent needed to deprive another of property, knew
property was not his
o Appropriation = use of property in a manner inconsistent with what the owner has
authorized
o Entrustment = special legal relationship that gives special right of access to the thing which
has been appropriated
Defendant obtains possession of property in fiduciary relationship – employee
Claim of right is a defense
Embezzler always has lawful possession followed up by illegal conversion
False Pretenses
 Fraudulent misrepresentation of existing facts
o Obtaining title to property by lies
 Misrepresentation by D of a present or past material fact with the intent to defraud the victim,
where the victim relies on the misrepresentation in transferring title to some property.
o Requires belief by the victim that the misrepresented fact is as D represents it
o Requires intent to defraud
 D knew misrepresentation was false, or did not know that it was true
 D intended to take something he knew belonged to someone else or to which D had
no right
o Opinions are NOT misrepresentations
o Misrepresentation must be material
Examples
 If you give me your luggage, I will pay you next week and then doesn’t
 Shopper switches price tags
[Attempt]
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Use Model Penal Code
Policy question: How do you draw a line over which defendant may be convicted of attempt that
also distinguishes between mere thought or preparation and attempt
Elements
 Intent to do an act or to bring about certain consequences which in law would amount to a crime
 And an act in furtherance of that intent which goes beyond mere preparation
 Mens rea requirement
o No attempt for crimes of recklessness or negligence
 Specific intent crimes
o D wants to bring about specific harmful result
Rationale
 General theory behind inchoate crimes is we want to punish crimes even if they don't succeed –
the view is the person that seeks to commit harm is potentially dangerous and if they are left
unpunished they will try to succeed again
o Idea is that person attempting to commit crime means that the person is a threat
o Can we get this person off the street before they commit a crime
o Also, there’s the aspect of deterrence
o We want to be able to stop an attempt early enough in the process so the harm doesn't
happen
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Approach ***USE ON EXAM***
 MPC substantial step requirement
o Act or omission constituting a substantial step in the course of conduct with the plan to
culminate in the actual crime
 Emphasis on what the actor has already done
 Firmness of criminal purpose
o Must be unambiguous or D must have a very good claim that it wasn’t an
attempt
 Must be assumed in light of defendant’s statements
 Concerns: Law should encourage “changes of heart”
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Attempted rape is a specific intent crime while rape is a general intent crime
o You can be convicted of rape on a recklessness theory; but you can’t be convicted of
attempted rape on a recklessness theory
You also can’t attempt involuntary manslaughter
Abandonment or Renunciation
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Traditional view: Abandonment and renunciation impossible when line crossed (proximity view)
Modern view: Abandonment possible unless motivated by…
o Discovery or fear of discovery
o Difficulties making crime impossible
o MUST be a result of genuine change of heart
People v. Staples: Man drills hole from apartment into bank, the cops notice and he stops  same
decision in traditional or modern view b/c no genuine change of heart
Prosecution’s argument
 There was an intent and there was a substantial step
 Argue that D only withdrew because he was about to be discovered
Defense’s argument
 Actions are ambiguous – could be preparation for other legitimate activities
 Defense to specific intent
Defenses to Attempt: Impossibility
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To what extent can the fact that a crime is impossible be defense for D?
Factual Impossibility
 Not a defense
 Example: If D picks up a toy gun and believes it was a real gun and attempts to kill, then he could
be convicted of attempted murder even though it was impossible to do so
Legal Impossibility
 True legal impossibility is a defense
 Example: Arrested for attempting to wear a bow tie; wearing a bow tie is not a crime
Mixed legal/factual
 Traditional view – treated as true legal
o Example: individual who shot a corpse, would be able to plead legal impossibility
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Modern approach –
o Focus on would it have been a crime if facts were as D assumed
o Example: shot at a corpse, if he thought the corpse was alive then he could be convicted
People v. Dlugash: D shot a man who may have already been dead  look at the world as D saw it
People v. Thousand: Cop poses as 14 year old online to catch a sexual predator  look at the
world as D saw it
[Solicitation]
Elements
 When one invites, requests, commands, hires or encourages another to commit offense (actus
reas)
 Mens rea: there has to be actual intent that the offense occur
o Cannot be joking
 Can be done with an innocent instrumentality
o Person doing solicitation would be convicted of solicitation (as principle), but not the
innocent instrumentality
 State v. Schleifer: D shouts at crowd  a general execration to a crowd to g out and do illegal
things satisfies solicitation requirement; does not have to be a single contact
 People v. Quentin: Ds pass out brochure with information  issue is to what extent does the
constitution protect giving out information that can be misused
Merger
 Solicitation merges with…
o Substantive offense
o Attempt
o Conspiracy
 Survives alone when a solicited party refuses or ignores solicitation
Renunciation
 Can serve as a defense to solicitation
 Requires
o Renunciation of criminal intent and
o Preventing solicited act through persuasion or other means
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[Accomplice Liability]
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United States v. Buttorff: Aiding and abetting filing of false income tax reports; gave specific advice
on how to evade taxes  Court rules that you cannot advise someone to break the law
o The more specific and in context it is, the more of a deciding factor it may be because there
is evidence of giving away criminal information
Wilcox v. Jeffery: Reporter aids a foreign saxophone player to play at a concert
State v. Gladstone: D points an undercover cop in the right direction for buying pot; not enough
evidence to call him an accomplice; issue of knowing v. purpose
Commonwealth v. Huber: Gave criminal rifle  just because you notify cops doesn’t mean you
withdraw from act/crime
Participation Requirement
 Actus Reas
o Did D aid or encourage by act or omission?
o Words may be enough if they are encouragement or approval
o Knowledge that act will facilitate crime is not enough
 Minority view that knowing solicitation would be sufficient
o Words may be enough if they are encouragement or approval
o Accomplice to criminally negligent conduct
 Mens Rea
o Must be actual intent to aid, assist, or encourage the crime
o Aid need not be substantial
o One can be found to aid criminally negligent conduct as well
o Knowledge that act will facilitate crime
 Majority view: This is NOT enough
 Minority view: This is enough
Traditional View Common Law -- four categories
 Principle in the first degree
o Those who actually engage in the act or omission that constitutes the criminal act
 Principle in the second degree
o Persons who aid, command, or encourage the principal and are present at the crime
 Accessory before the fact
o Persons who aid, abet, or encourage the principal but are NOT present at the crime
 Accessory after the fact
o Persons who assist the principal after the crime
Modern View MPC Approach ***USE THIS ON TEST***
 Principal (can be convicted of target offense)
 Accomplice (can be convicted of target offense)
 Accessory after the fact (liable for a charge similar to obstruction of justice)
o Example: helping principle get away with the crime
Special Issues
 Person not legally capable of being principle may be guilty as accomplice
o Examples: Husband encouraging rape of wife, under common law definition of rape
 Person whose conduct is inevitable in commission of crime
o Example: Customer cannot be prostitute’s accomplice
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[Conspiracy]
Elements
 Agreement between 2 or more people
 Overt act in furtherance of the agreement
 Intent to promote unlawful act that is the object of the conspiracy
 Majority Rule: Knowledge that the unlawful act is indeed unlawful NOT required
o Minority Rule: Knowledge Act is Unlawful
Distinguish between conspiracy and accomplice liability
 Accomplice liability requires attempt or commission; can only happen if the crime has occurred or
was attempted
Prosecutorial advantages
 Early liability
 Admissibility of hearsay evidence
o Casts doubt on defendant A that taints defendant B
 Venue advantages
o the prosecution may bring charges anywhere where the conspiracy may have been formed
 Joint trial and tainting of the defendants
Conspiracy does not merge
 MPC has a contrary rule (minority rule—***DO NOT USE THIS MPC RULE ON EXAM***
Wharton Rule
 Offenses inherently requiring two persons could not be the object of conspiracy charges
o Dueling and gambling
 Common law – no conspiracy
 MPC that IS a conspiracy *** USE THIS ON EXAM***
o Rationale: concern to punish before the actual harm occurs
Mens Rea Requirement
 Knowledge of Illegal Activities
 Ordinary service less likely to be seen as furthering as conspiracy,
 Different for tightly controlled good or has specific uses is not good
 If a person is charging over the market rate or it is a service ordinarily used by criminals the more
likely it is that the person was aiding in a criminal activity
Overt Act Requirement
 Act in furtherance of the conspiracy
 Need not go beyond mere preparation
 Distinguishes conspiracy from mere idle talk
 Need not be unlawful
Pinkerton Doctrine ***DO NOT USE ON EXAM***
 Conspirators may be liable for any act in furtherance of enterprise
 All foreseeable substantive crimes as long as one is a member of a conspiracy
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MPC rejects the Pinkerton Doctrine (assume MPC rule)
Withdrawal
 Liability for actions of co-conspirators ends with withdrawal
 One normally has liability for his co-conspirators
 Withdrawal requires an affirmative act – informing members of conspiracy or authorities
 Withdrawal just gets them out of the target offense NOT the conspiracy
 Passive non-action DOES NOT constitute withdrawal
Renunciation
 Defense to conspiracy
 Abandonment of criminal purpose and a thwarting success of the criminal conspiracy
[Justification]
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

Says conduct is not wrongful
Nature of justification is that the claim is grounded in an implicit exception to the prohibitory
Objectively correct
Was the personal legally privileged to do a particular act?
o Self-defense
o Crime prevention
o Law enforcement
Self-Defense
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
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Law of necessity
o Imminence Requirement
 Immediate peril or danger
 Once aggressor withdraws, you must withdraw
 Rationale: Bright line between self-help and self-defense
o Retaliation not permitted
Retreat Rule
o Majority Approach: Retreat is not required
o Minority/MPC approach: Retreat is required
 Favored by legal profession
o Retreat from home is not required in any district
People v. Goetz: Teenager asked D for money on the subway, and he shot 4 people
o Issues: Should a sixth sense be allowed? ; Should it matter that the teenagers were armed
even though D did not know?
Defending Property
 Deadly force may be used to save life not property
 Once confronted with taking of property with deadly force then you can use deadly force against
them
Defending the life of another
 In cases of mistake…
o Reasonable belief (majority)
o Step in shoes (minority)
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
If one makes a mistake and comes to the aid of aggressor one would not be
privileged to use force
Battered Spouse Issue
 The issue of imminence
 No traditional notions of imminence if batterer is asleep and killed
 Is this self-defense or excuse (psychiatric)
 State v. Norman: Woman killed her abusive husband in his sleep  no imminence so she was
found guilty
Objective v. Subjective Approach of Self-Defense
 Objective Test – Majority Approach
o Reasonably prudent person
o Honest and reasonable fear
o Amount of force must be reasonable
 Subjective Test – Minority Approach
o Favors sensitive people
o Can be unreasonable
 Many courts look at both objective and subjective standard
 Physical attributes important to consider (small person? Strong?)
[Excuse]
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
Concedes the wrongfulness of the act, but asserts that the actor should not be punished for her
wrongful behavior, primarily because of psychological or situational involuntariness
Excusing the state of mind
o Was there an excusable reason for their state of mind to do something that the law does not
permit?
Potential Excuses – Ones that involve the negation or actus reas or mens rea
 Negation of actus reas or mens rea (defenses even to SL crime)
o Examples
 Sleep walking
 Involuntary intoxication
 Negation of mens rea
o Mental impairment
o Even voluntary intoxication might be defense
o Applies to crimes where specific intent is required
 Example:
 Voluntary intoxicated person is charged with burglary, burglary requires the
specific intent to commit a felony. D could pose defense that he was so
intoxicated that he could not form the intent to commit a felony
 Jury does not have to believe that he doesn’t know what he is doing, but he
has the option of presenting that defense
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Necessity
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

Choice of evils, breaking law as lesser evil
Cannot be used as protest against general policy, must be confined to emergency
Very rarely can be used as a defense to murder
Elements
 You admit you did it and were fully aware
 Need honest belief
 Confined to emergency situations
Examples
 Stealing food to feed children
 Looters during Katrina
Duress [Type of necessity of defense]
 Traditional view harm done should be less than harm threatened ***USE ON TEST**
 [Modern trend relaxes this and asks whether person of reasonable resolve would submit]
 Threat need not be immediate
 Many states do not allow this defense for murder
 NOT available for people who voluntarily put themselves in this situation
Entrapment

Entrapment defense prohibits law enforcement officers from instigating a criminal act by persons
“otherwise innocent in order to lure them to its commission and to punish them”
Elements
 Criminal design must have originated with law enforcement officers
 Majority view: The defendant must not have been predisposed to commit the crime prior to the
initial contact by the government
o Jury decides
o D is required to prove that the government agent induced them
o Factors to look at disposition
 The character or reputation of D
 Whether the government made the initial suggestion of criminal activity
 Whether D engaged in activity for profit
 Whether D showed reluctance
 Nature of government’s inducement
 Minority view: Would focus on government agent’s conduct
o Were the government’s actions outrageous?
o Judge decides
Rationale: Want to distinguish between person who is already committing an offense versus someone
who wouldn’t have committed it if not for the government inducing the activity
 Problem: Where to draw the line
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Insanity
Three stages
 Time of crime – grounds of acquittal
 Time of trial – trial may not proceed if D lacks capacity to participate
 Time of execution – execution cannot go forward
o D cannot assist in appeal and clemency processes
o Cruelty of executing somebody who may not be aware of what is happening
o D cannot prepare for death and make peace with God
Tests for insanity
 M’Naughten Rule **USE ON EXAM***
o Inability by reason of mental disease to understand nature of act or to distinguish right
from wrong (use this on this test)
o Focuses on cognition
 Irresistible Impulse Test
o In some jurisdictions if a person is sane under M’Naugthen rule then they are examined in
terms of this
o Inability to control behavior because of mental disease
o Focuses on volition rather than cognition
o Policeman at elbow corollary
 Durham test – not responsible if product of mental disease or defect
o NH had this test for a hot second
General debate over whether or not a wide array of psychological, sociological and psychological
conditions that do not rise to the level of insanity should nonetheless be considered either as grounds for
acquittal or mitigation
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