CRIMINAL LAW, Spring 2003, Professor Gardner
March 23 658-661; 665-668; 763-774; 777-797
March 24 796-804; 818-825; 830-835; 841-847; 852-863
I.
II.
OVERVIEW AND INTRODUCTION:
A. Criminal Law:
1. Most visible and powerful form of state power over people
i)
Example:
 Prisons
 Death Penalty
B. Two Models of Criminal Law:
1. Common Law
i)
Now Codified in all states
ii)
The rules came originally from the courts
2. Model Penal Code:
i)
American Law Institute
ii)
Systemically Compiled the criminal law
 MPC is the law in many jurisdictions
 If it’s not the law in a jurisdiction, the judges will still
look to it and lawyers will use it
iii)
Ideal Code System will answer all the problems:
 Doesn’t work—Courts still have to do interpretations
THREE ESSENTIAL PRINCIPLES OF CRIMINAL LAW
A. Punishment (P-ment):
1. Overview:
i)
Criminal Law is distinguished by punishment:
 The only time punishment is used as a sanction
2. Suffering Aspect of Punishment:
i)
Punishment is the purposeful infliction of suffering upon an
offender because of his offense
 Normally, making someone suffer is bad, immoral
 In Criminal Law, suffering is good
3. Justification of Punishment:
i)
Since Punishment is normally bad, we need a justification
 Because we are making people suffer, we need a
justification
4. Two main justifications for inflicting punishment/suffering:
i)
Utilitarian and Retributive
 Most states have a mix of both retributive and
utilitarian theories
I.
II.
Utilitarian Theory:
Retributive Theory:
General Definition:
I. General Definition:
A. “Punishment is imposed to achieve
A. Try to punish in order to
desirable consequences, specifically to do
minimize criminal conduct
justice
B. Focus on: social benefit, future
B. Backward looking
consequences
 P-ment deals with the
C. Forward looking
crime
Types of Utilitarian Theories:
 Responding to the
A. Deterrence (det.):
already occurred crime
1. Special Deterrence:
C. Unjust Benefits:
 Preventing criminals from
 Offenders would be
committing the crime again
receiving an unjust
 Recidivism (repeat offenders):
benefit if they weren’t
70-80% in NE. Leads people
punished.
to conclude that special
 Every person has a duty
deterrence isn’t working.
to sacrifice and obey
2. General Deterrence:
laws. It would be unfair
 Going after would be criminals.
and unjust if one gained
Trying to stop others from
more than others.
committing crime
D. Social contract:
 Problem: hard to measure. Is
 We, as social
general det. working? Does the
contractors, all agree on
presence of prison scare me of
living in a society of
committing crime?
legal order, to live by the
rules, to assume the
 Example: looting during a police
strike in Liverpool.
burden of living by these
rules.
 Presence of Criminal Law does
affect our behavior: when I see a
 If there’s a breacher (a
policeman in the rear-view
criminal), he has
window.
manifested his
unwillingness to live by
 For certain classes of people:
the rules.
deterrence probably doesn’t work.
Certain circumstances: anger,
 Social unbalance: To
passion—no det.
balance things again, we
3. Could be general and special
must make the criminal
deterrence (I think):
pay for the crime.
II.
Negative
Connotation:
 Administer punishment to a child
A. Vengeance: not very
in the presence of another child.
praiseworthy
4. Belief that people rationally weigh the
benefits/costs before committing crime
 Emotional
(Bentham).
retaliation
 What we did in the
B. Incapacitation (Incap.):
old testament, not
1. Take the people out of society
fit for 21th
2. Make the offender incapable of
century.
committing the crime again
3. Death penalty: ultimate incapacitation
4. Different than deterrence:
 Incap. Singles out the
individual person
5. Some people are just too dangerous for
society:
 Silence of the Lambs guy
 The problem with this: we
assume that we can identify who
is dangerous. Tough to predict.
Even professionals won’t predict
in court.
 67% false positive rate
 Are we comfortable sending people
to prison on this theory?
6. Incapacitation work?
 Or is it rehab, or det. that is
working?
7. Incap. as rehab.?
 No workie!
C. Rehabilitation (rehab.):
1. Different than Incap. and Det.: How?
 Deterrence—the person is just
scared to do the crime again,
but the criminal desire may still
be there. (example of
punishing a child in front of his
sibling)
 Rehab.: the goal is to change
the person
2. Rehab. is at odds with punishment
 P-ment: inflict suffering
 Rehab.: relieve suffering
3. Rehab. is still a goal in many J’s.
Many argue why
 Doesn’t work
 Movement for det. and retributive
theories (at odds with rehab.)
 It isn’t voluntary!!
D. Denunciation:
1. Criminal P-Ment is like marriage:
 Marriage is to sex as…
 Punishment is to anger of
Crime
III. Entitled to give p-ment and
are
obligated to do so.
IV. Moore:
A. Examples of Horrible
Crimes:
 We feel rage
when we hear
this.
 It’s natural, we
all have these
feelings
V. Just Desserts:
A. Have the right and duty to
punish
VI. Justice is a limiting
principle:
A. There must be a condition
precedent to the
punishment.
 Culpability: a necessary
condition
 Can’t punish unless the
offender is guilty
VII. An inalienable right of
punishment (Morris)
A. Forgive and Forget issue
(people only feel better
when they have
suffered)
B. Therapeutic System:
 Unlike the criminal
system, it would not
respect the person’s
autonomy
 Criminal Law is
based on free will.
You choose if you
want to be a
criminal. It
protects those who
choose not to
commit crime.
 Respecting a person
is respecting their
choices

Marriage: controls sexual
desires, an accepted way of
channeling social drives.
Without marriage, there
would be promiscuity everywhere.
 Without p-ment, there would
be chaos everywhere.
 By punishing, we let off
steam.
2. Denouncing the Wrong-doer
 It’s good to hate offenders
 By denouncing, society is
brought together
 Society’s morals are solidified by
inflicting p-ment.
 Society is collectively reinforcing
the morals.
3. “Morally right to hate criminals”
(Stephen)
 Righteous indignation
 If no-one upset at rape, murder: it
would show moral callousness
 To be outraged at wrong behavior
is a natural phenomenon.
 Criminal Law: productively
controls our outrage
4. Shouldn’t avoid the views of society:
 Remember the Rodney King
trial.
 Rage didn’t flow through the
criminal system.
III.
Advantages and Disadvantages to
Utilitarian Theories:
A. Hypo: What if the best way to prevent
crime is to punish an innocent person
whenever a crime occurs?
 As a utilitarian, you would be
bound to punish the innocent
person.
 We are troubled by
punishing an innocent
offender
B. Common Example:




In therapeutic model,
we would not be able
to choose our pment,
Patient is assumed to
be irrational, sick
Even if you have the
desire to commit
crime, you will be
treated as if you are
sick.
Therapist would
decide if you are
healthy or not, sick
or not, what kind of
medicine you need.
VIII. Criticisms of Retributive
Theories:
A. No magic number on the
proper sentence in doing
justice.


Framing someone, or
What if in Case A, there is a huge
press present, and in Case B, there
is no press present. In both cases,
the same crime is committed, but in
A, a real message could be sent out.
5. Applying Punishment in real life:
i)
U.S. v. Bergman
 Facts:
i. Ordained Rabbi, 65 years old, fleeced old people and
the government out of millions of dollars
ii. Judge had much discretion in applying sentence. 0-8
years, plus fine.
iii. Punishment is the institutionalized suffering, shame,
and embarrassment does not count as punishment.
 Which theory of punishment to apply?
 Rehab.? No. He’s a priest, it would be
paternalistic to say we are teaching him what is
right or wrong
 Special Deterrence? He’s not going to do the
crime again. He’s so embarrassed that he has
changed.
 General Deterrence? Send a message to white
collar people. White collar people don’t want to go
to jail. It is the wealthy who will committing these
types of crimes. Just being indicted is enough of a
deterrence because of the public disgrace.
 Retributive theory? He deserves to spend time in
jail. He should receive his “Just desserts.”
 How serious was the crime? Non-violent, but he
was fleecing old people.
 Denunciation Theory? How does society feel
about this case. Think about the messages it sends,
but good and bad messages. Think about how the
public views things.
6. Punishment and Proportionality:
(i) General Rule:
 Punishment must be proportionate to the offense
 Providing punishment proportional to the gravity of the offense
is fundamental to justice.
o Most agree on of the gravity of the offense
o Most disagree about the degree of punishment
(ii) Harmelin v. Michigan:



Mandatory life Sentence (most severe punishment in
Michigan) for repeat offender: possessing cocaine weighing
over 650 grams.
Defendant had two argument: the statute violates the 8th
Amendment (cruel and unusual punishment) because:
o Disproportionate
o Judge wasn’t allowed to take circumstances into account
Court concluded that the statute is constitutional:
o Scalia and Rhenquist rejected the Solem Test
(“proportionality determination”):
 Consider the gravity of the offense
 Factor one: Often assessed in the abstract.
This is tough to do (subjective analysis) for
a judge.
 Consider the “sentences imposed for similarly
grave offenses in the same jurisdiction.”
 Consider the “sentences imposed for the same
crime in other jurisdictions.”
 Who cares what other states think!
Michigan may feel that they have a more
severe problem with drugs than the people
of Delaware do. Let the states decide their
own criminal system.
 Look only at the circumstances of the case
(“mitigating factors”) in the context of capital
punishment cases. The 8th amendment requires a
judge to provide “individualized determination” of
whether or not the punishment is appropriate.
o O’Connor, Kennedy, Souter:
 Strict Proportionality:
 Apply Solem Test when?
 Look at the first prong:
o If punishment is grossly
disproportionate to the offense (in
the abstract), then apply the rest of
the test. If not, then assume the
punishment is constitutional, and
don’t go to the other two prongs.
 These justices felt that this crime was a very serious
crime:
 Strong relationship between drug use and
violent crime
 Drugs cause great grief in society
o Dissenters, class discussion:
 This case is easy:
 It’s clearly disproportionate:

Possessing Cocaine is a non-violent crime.
Much lower than Murder, Rape, Violent
Crimes
 Similar crimes in Michigan:
 Murder: life in prison
 Carrying Cocaine: life in prison
 Doesn’t look fair.
 Similar crime in other Jurisdictions?
 Only Alabama came close
 Michigan is clearly the most severe.
(iii) Harmelin can be seen as a States’ Rights issue:
 States are often free to make their own criminal system.
 Michigan may want to punish drug use more severely than
other states.
7. Principle of Legality
(i) Nulla Poena Sine Lege:
 No punishment without law
 The offense must be defined by a legally recognizable rule
so that the punishment is fair.
 Any statute or law that punishes in an ex post facto way is
unconstitutional
(ii) Common Law Crimes:
 Most states have abolished them or are codified
 Criminal Law: defined by statute, no common law
 Degree of Retroactivity:
o How did the 1st judge decide something was wrong?
 Religion, morals, custom
 Shaw (convicted guy of corrupting public morals):
o Court said that it retained the power to create
common law crimes. It retained the power to fill in
the gaps of the law (where parliament didn’t make
it)
o This case create a number of problems:
 Retroactivity problem
 Shaw convicted on an ex post facto
way
 Vagueness:
 Who defines “public morals”
 Gives power to the state to determine
on a case by case basis to impose it’s
view of morality.
 That’s a dangerous tool
 The offense occurs, and then the judge decides: that’s not
good.
(iii) Criminal Law: in most states, in the hands of the legislature:



Different than what Shaw stood for.
Legislature is prospective, looks to the future to prevent crime
Protective feature:
o Can’t be punished for a crime that doesn’t exist.
(iv) Void for Vagueness principle:
 Statute is unconstitutional if it is too vague:
o Could be read in a way that is ex post facto (which
is unconstitutional).
o Vagueness and Retroactivity: connected
 If a statute is too vague, you won’t know an
act is wrong until after you have committed
the act and the court tells you that the act is
wrong.
 Example:
o Papachristou v. City of Jacksonville: pg 260
o Serving a warrant on A, the police officer tells B to
get out of the car, and arrests B for loitering.
 Vague statutes can be a tool for misuse by the government
(v) Statutory Interpretation:
 Keeler v. Superior Court (man intentionally killed his exwife’s fetus)
o Statutory Interpretation Analysis
 Looked at legislative intent
 Trying to define what a human being is
 Looked at 1850 statute
 Did not include a feticide statute
(unlike other states at that time)
 No murder because baby was not a human
being
o Ex Post Facto Law
 Unconstitutional if guilty because Keeler
had no notice (14th amendment—violation
of due process)
 Really? Intentionally trying to kill a
fetus is morally wrong.
 Chavez case (woman who killed
baby during the process of being
born) had already been decided
 Majority compared the case to Bouie (South
Carolina case—black students sat in a
segregated restaurant. Supreme Court
determined that the S.C’s interpretation of
statute was ex post facto)
 These two cases are actually very
different. In Bouie, there’s nothing
morally wrong with sitting at a
restaurant. It is not criminal to ask
for lunch. But in Keeler, it is
morally wrong to kick a pregnant
woman with the intent to kill the
fetus.
 Whether the underlying conduct is
immoral matters a great deal (for
example, the Supreme Court upheld
a vague Tenn. statute that prohibited
“crime against nature”).
o Criminal Statutes: interpreted narrowly, rather than
broadly for the defendant.
o Perhaps court was saying: legislature needs to fix
things, it’s up to them to change the problem.
 Johnson v. State of Florida (woman who took drugs
immediately before birth of child. State charged her with
passing drugs to a baby because drugs “passed” to the baby
from the time of birth until the umbilici cord was cut)
o Court says that “passing drugs” is a stretch
o Bad public policy if woman punished:
 Increase in Abortions (encourages abortion)
 Disincentive to get treatment (women will
be caught for child abuse)
(vi) Constitutionally Protected Conduct:
 Griswold v. Connecticut (gave prescriptions for contraceptives
to married couples, which violated statutory law)
o Supreme Court says:
 Constitution guarantees a right to privacy (court
reading this into the constitution)
o The question is: how far should this go?
 Does it extend to unmarried people?
 What about doing drugs in a house?
o Usually, this case is understood as upholding the
sanctity of marriage.
 A small area of the law in which the constitution
protects people from criminal liability
 Interpreted narrowly (I think)
(vii) Immorality as Sufficient Ground for Criminal Liability:
 Raises a lot of issues:
o Can you enforce morality
o Is it immoral
o What about victim-less crimes (like Marijuana)
o Adultery:
 Not enforced, so why have it?
 It puts the state on record, however, that it does
not approve of this conduct.

Criminalizing Immoral Laws, even if not enforced, sends a
message
o According to Devlan, it tells people that society does
not want this kind of conduct.
B. Actus Reus
1. Every criminal Statute must have an act component or a culpable
omission
2. Act v. Mere Bodily Movement:
i)
Act:
 Preceded by mental thoughts
 If there is an act, you determine if you are
responsible for the act (mens rea analysis).
 Example:
 Statute says: whoso ever shoots a Moose,
regardless of the circumstances, is guilty:
 X is deer hunting, shoots at a deer, but
misses. The shot, however, accidentally hits
a Moose.
 X is guilty. It’s a strict liability statute.
Only concerns the act. The man committed
the act, and we don’t care about any mens
rea requirement.
ii)
Mere Bodily Movement:
 Body is simply reacting, the mind is not telling the
body to act.
 Reflex
 If you are out hunting and a swarm of bees
comes upon you. If, by reflex, you hit the
trigger and kill the Moose, you are not
guilty. There is no act.
 Twitch
 Martin v. State(the man was charged with being
drunk in public)
 The man was drunk, he was in public, but he
did not appear in public—the police took
him there. So, no act, no guilt.
 Had he been asked by the police to follow
them, and the police led him to a public
street, and then he is arrested, he still acted.
His defense would be a mens rea defense,
not an actus rea defense.
 When the police officer carries the drunk
man into the street, then the drunk man has
an actus reus defense
 Unconscious:

If you kill a Moose in your sleep, you have
not acted.
 Being Acted Upon:
 If you are holding a gun, and your friend
pulls your finger as it is on the trigger, you
are not guilty.
3. Examples of Act, Non-Act:
i)
People v. Wu:
 Woman killed her son. Motive was probably
present (she was depressed because her husband
was cheating on her, her culture taught her that she
and her son could live in the afterlife together)
 Her defense was that she was unconscious at the
time she killed her son.
 Psychiatrist testified that she was possibly in
a fugue state, disassociative reaction
ii)
The King v. Cogdon
 Woman had been seeing ghosts, spiders, war. She
killed her daughter in her sleep.
 Subconscious motives: anger and resentment
toward daughter.
 Her only defense was that she did not act:
 If we hold a person liable for subconscious motives:
 We would be punishing her for her thoughts.
 A lot of people would be guilty if we punish
someone for thinking, especially if the
thoughts are only subconscious.
 If the mother had been psychotic, her defense could
not have been an actus reus one. She is awake and
she is acting. Insanity is a mens rea defense.
iii)
People v. Decina:
 A man was driving in his car when he suddenly had
an epileptic seizure and killed four kids during the
attack. He knew before he got into the car that he is
prone to having epileptic seizures.
 The statute read, “A person who operates or drives
any car in a negligent or reckless manner…”
 To be guilty, he must drive, and his driving must
cause death.
 Dissent said: he was unconscious, and therefore he
had no actus reus. At the time of death, he was not
operating or driving a car.
 Majority says otherwise:
 Relation Back: go back to the time the man
got into the car. He did, back in time,
operate and drive a car. Hold the person
liable for the consequences that follow.
 Majority view: scary. Actus Reus and Mens
rea are supposed to occur at the same time
o The crime is getting in the car, even though
the harm occurs later. The man
could be
arrested any time he gets into
the car
iv)
Robinson v. California
 A drug user was charged with being addicted to a
drug (Heroin).
 Court concludes: can’t be convicted of an illness
 Can’t punish someone for having a common cold
 The statute is unconstitutional because it punishes
someone without an act.
 The concept of an act is constitutionally
mandated.
 There must be an action or culpable
omission to have a punishment
 Distinction between act and status.
 Being addicted to Heroin: that’s a status
 Can’t punish a status, a condition
 Must have an action before the offense
 We can punish using a drug, we can punish
possessing a drug because there are acts.
 Later cases tried to extend the Robinson case:
 Powell v. Texas:
 Arrested for being drunk in public
 Defendant said he’s an alcoholic, he was
being punished for his disease
 Court said: Powell being punished for
“appearing” in public drunk. That’s an act.
This is different than being an alcoholic.
 Robinson is read narrowly: if a drug addict breaks
into a store, steals money, he will be guilty of these
offenses.
 Punishment means infliction of pain on another
because of an offense. You muse punish for an act,
cannot be visited on a status, or thought.
4. Model Penal Codes’s Act Requirement: § 2.01
i)
(1) A person is not guilty of an offense unless his liability is
based on conduct which includes a voluntary act or the
omission to perform an act of which he is physically
capable.
(2) The following are not voluntary acts within the meaning
of the section:
(a) A reflex or convulsion;
(b) a bodily movement during unconsciousness or
sleep;
(c) conduct during hypnosis or resulting from
hypnotic suggestion;
(d) a bodily movement that otherwise is not a
product of the effort or determination of the actor,
either conscious or habitual.
(3) Liability for the commission of an offense may not be
based on an omission unaccompanied by action unless:
(a) the omission is expressly made sufficient by the
law defining the offense; or
(b) a duty to perform the omitted act is otherwise
imposed by law.
2(d) is saying: just because it’s habitual and you don’t
realize you are doing it, doesn’t mean you are not guilty
 MPC gives no positive definition of a voluntary act.
5. Knowing Failure to Act:
i)
People v. Shaughnessy:
 A car entered into private property, and the couple
was arrested for trespassing. The defendant, the
passenger, argued that she was only going along for
the ride, and therefore she did no action.
 Similar to being carried into a public street
 The state of mind changes the nature of the act:
 Had she said: honey, let’s go onto this
poperty, she would have been guilty, even
though the acts are technically the same.
 The crime is “entering”. She was in the car, and
therefore she did not enter:
 Had she known, she would have been an
accessory, or a co-conspirator
6. Knowledge, Possession, and Actus Reus:
i)
People v. Ackerman:
 A student picked up a package containing a book
with a false center. The book contained LSD.
 It should be a no-brainer: he was in possession of
LSD.
 The act included a knowledge requirement.
 Without the knowledge requirement, you
could plant the LSD on anyone and they
would be guilty
ii)
7. Culpable Omission: can only be punishable if there was a duty and a
breach of that duty.
i)
Here, lack of action is culpable:
ii)
Jones v. United States
 A mother contracted to have her two children cared
for by another woman. The woman failed to care
for the children properly, and one of the boys died.
 Had to find a duty to determine liability
 Statute
 Status Relationship
 K
 Excludes other from aid
 Must have a duty if you are finding someone guilty
because of an omission.
 To the mother, the status relationship could apply
(she argued that she made a K with the woman)
 To the defendant, K and excludes others from aid
could apply.
 Don’t have to rescue or aid if no duty (similar to
tort law).
8. Causation: pg. 374
i)
Similar to Tort Law
 Cause in Fact (but for causation)
 Proximate Cause (legal cause)
ii)
Class Example:
 Mom comes home from work, and her daughter
says, “things went well, except for the drive by
shooting.” When the mother hears this, she
suddenly has a heart attack and dies. Are the
shooters guilty of the crime?
 Eggshell Doctrine
 But for causation works, is it foreseeable enough for
proximate cause?
 An infinite number of conditions are necessary for
event to occur:
 A shooting had to occur, the daughter had to
ave been home, the Mom needed to find out
bout the shooting, and the mom’s heart had
o be in a poor condition.
iii)
When does a condition become a cause?
 Why do we single out some conditions and call
them causes, and single out some of the other
conditions and call them irrelevant?
 What distinguishes the condition from the cause?
 Morally Reprehensible Conduct

iv)
We tend to attribute cause to:
 Morally reprehensible conduct
 Incredibly unusual unnatural events
Causation and acts of victims:
 Stephenson v. State:
 The defendant kidnapped and assault a
woman on a train. She was in a weakened
condition. She decided to kill herself, so she
bought poison and drank it.
 Defendant argued that the cause of the death
was suicide. Murder requires causing a
death. She caused the death, not him. Court
disagreed.
 There was an intervening act, possibly could
have broken the chain of causation.
 Jury instruction provided that there can be
more than one cause of the homicide. It’s a
dangerous jury instruction.
 Compare the jury instruction with the other
cases in class: parents who wanted their
daughter to shoot the family dog, the mother
who forced the daughter to confess at church
about fornication, and the daughter later
killed herself. Under the jury instructions, it
is likely that these parents would be guilty
of murder.
 The court could have found the defendant
guilty on a different basis. He failed to
immediately take the woman to the hospital.
Because he excluded her from all other
people, he had a duty to help her. He should
therefore be guilty of murder.
C. Mens Rea:
1. Historically:
a)
A state of wickedness
b)
Harbored evil motives
2. Modification over time:
a)
An actual state of mind for each offense
b)
Don’t have to prove wickedness
c)
Psychological state of mind
d)
Offense Analysis
3. Model Penal Code:
a)
Changes everything
b)
Element Analysis
 For each crime, there may be more than one culpability
factor.
4. Common Law notions of Mens Rea
a)
Pembliton:
 The defendant threw a rock and someone, missed,
and it broke a window.
 Jury found that he did not have the intent to break
the window
 Trying to define maliciously
 He had no intent to destroy the window.
 Court moving toward an actual state of mind
 Because he didn’t even know there was a widow
there, he did not satisfy the element of culpability.
c)
Faulkner:
 Thirsty Sailor, steals rum, and lights the boat on
fire.
 “Feloniously, unlawfully, and maliciously, did set
fire to the said ship.”
 Issue: no intent to set fire to the boat
 Crown said: he was committing a felony, so he’s
guilty
 Using the Mens Rea for one crime (stealing) to find
another (arson) possibly
 Court held: have to prove the state of mind for this
crime, even though he had an evil state of mind.
 Many ways to define maliciously (feloniously,
unlawfully, and maliciously setting fire to a ship
etc.)
d)
Cunningham
 Man steals from a gas meter, breaks the meter, and
his mother-in-law almost dies.
 Charged with: unlawfully and maliciously caused
another to take gas, and endangered the victim’s
life.
 Trial judge gave jury instruction: erroneously gave
an instruction on evil intent, ie. If he has an intent to
commit a theft, he’s guilty of the crime.
 Court held: must act with intent. Negligence is not
enough. This where the Common Law evolved to.
 Court had to unpack the word, “maliciously”
 No Negligence in Crim Law, Recklessly or
purposefully only
e)
Santillanes
 Uncle cut his nephew’s neck with a knife.
 Sometimes Negligence is enough for criminal
liability

f)
g)
h)
Usually: need criminal or gross negligence (more
than normal negligence)
Garrett
 Statute says nothing about mens rea
 Court: reads in a mens rea
 Negligence: should have known
 Worried about reading the statute as strictly liable.
 The defendant “should have known”
 Strict liability is not traditional in crim law
 Mens Rea is the common principle so adding
negligence wasn’t exactly changing the statute it
was just stating something that was obvious
Cotterill v. Penn
 Neighbor releases some homing pigeons, and the
defendant shot one. He thought that it was a wood
pigeon.
 Charge: unlawfully and willfully killing a house or
homing pigeon.
 No Strict Liability statute: willfully is there.
 Three elements are present:
 Willfully
 Killing
 Homing pigeon—circumstantial element
 He willfully shot a gun
 Defendant argued that there was no Mens Rea as to
#3. He didn’t know that it was a Homing Pigeon.
 The issue: Does the Mens Rea modify the verb or
go all the way down the statute?
 Crown argues (and the court holds): to commit
crime, one must willfully kill. The willfully
modifies the verb. Grammatically, it works.
 Not really fair to the defendant. What if his actions
were reasonable? What if a hundred woodpigeons
flew in front of him, he shot, and accidentally killed
one homing pigeon that was flying with the group.
Under the court’s reading, he would be guilty.
 Common Law courts will sometimes limit the Mens
rea to the verb, and other times extend the Mens rea
down the statute.
 Brings up the issue: does the Mens Rea have to be
proved with each element, or only the one closet to
it?
 From this case: we still don’t know what willfully
means. Does it mean purposefully, or intentionally?
X-Citement Video


Court holds: term goes down the statute
Elements of the crime:
 Knowingly
 Transports
 Minor
 Sex
4. Model Penal Code: Saves the day
a)
Four basic Culpability Factors:
i)
Purposefully
ii)
Knowingly
iii)
Reckless
iv)
Negligence
b)
Three elements to a statute:
 Circumstance Elements
 Conduct Elements
 Results Elements
c)
d)
e)
f)
g)
Purposefully:
 X desires to kill Y.
 X places a bomb on the plane in which he knows that Y
is the only person on the plane, and he desires for the
bomb to kill Y.
Knowingly: A knowledge of (much like purposefully)
 X desires to kill Y. X places a bomb on a plane to
kill Y. He knows that Z will be on the plane, but
does not desire for Z to die. He purposefully kills
Y, but he knowingly kills Z.
Recklessly: A Possibility and does anyway
 X places a package on the bomb. He thinks that it’s
a bomb, but isn’t sure. The bomb explodes and Z
and Y die. X recklessly killed Z and Y.
 Actually aware of the risks
 Defendant thinks something could happen, but he
does the act anyways.
 Subjective Standard
Negligently:
 X’s job is to inspect the packages on the plane. X is
lazy, forgets to test the packages as they go by. One
of the packages had a bomb, and it kills Y and Z. X
negligently killed Z and Y.
 Defendant should have known...
 Defendant should have known the risks (but don’t
actually know).
 Objective Standard
Applying Element Analysis:

Cotterill:
 Whoever willfully kills a homing pigeon
shall pay a fine
 Culpability factor: willfully:

Willfully isn’t one of the four
culpability factors:

2.02(8) willfully replaced by
knowingly.
 Apply knowingly to each material element
(2.02(4))

What’s a material element?

1.13(10)(general definitions)

If the element relates to the harm or
evil, incident to conduct, sought to
be prevented by the law defining the
offense. Basically, as long as the
element does not relate to the
jurisdiction, the element is material.
 Homing Pigeon is a material element.
Cotterill did not know it was a Homing
pigeon, therefore he is not guilty.
 What if willfully (knowingly) hadn’t been
there?

Normally, one would think that
2.02(3) would apply. 2.02(3) is the
default rule for when there is no
culpability requirement on the face
of the statute. This section fills the
gap with recklessness, knowingly,
and purposefully.

The code cuts off at Recklessly
because it deals with knowledge.
Negligence does not have
knowledge, so if would be unfair to
punish a person without having
knowledge.
 Look at the statute, however.
Because the punishment is only a
fine (as opposed to imprisonment), it
is likely that this statute is a strict
liability statute: 2.05(1)(a). To be
sure, cross-reference the statute with
the definition of violation—1.04(5).

If the statute had any jail time, then
the default rule would have kicked
in. Jail time means it’s serious
h)
enough that the legislature wanted
the prosecution to prove the mens
rea.
The effect of mistake on Mens Rea:
1. Failure of Proving Mens Rea:
i)
State v. McDonald
 Street car driver ejected a guy from the bus.
The driver didn’t think that the man paid for
the fare, but in reality the man had paid for
the fare.
 He committed the crime, but he did not have
the necessary criminal intent.
 The mistake must be reasonable.
 Mistake of facts can be forgiven
 Mistakes of Law will not normally be
forgiven
ii)
Stern v. The State
 A bar owner let a minor play billards:
 Charged with: whoever,

Knowingly/Intentionally

Permits

Minor

Billards

Without parental consent
 Defendant argued that he made a mistake as
to element number 3.
 Again, the mistake must be reasonable.
 His mistake negates the Mens Rea of an
element of the crime. It’s a failure of proof
defense.
 Through due diligence he could have
learned the age of the children, maybe, but
the state didn’t prove this.
2. Ignorance and Mistake of Law:
 Ignorance of Law
iii)
United States v. Moncini
 Italian sending child porn to the U.S.
 Claims that this is not a crime in Italy.
Didn’t know it was a crime in America
 “Ignorance of the Law is no excuse.”
 Policy argument pushing this:

A lot of people would be open to a
defense if we allowed this person to
not be guilty.
We are all accountable to the criminal law in the state or country in which we
are in.
3.

Incentive to know the law, rather
than to remain ignorant.
 Compare this case to Etiene, the French
dueler who was charged with Murder while
dueling in England. In France dueling was
honorable, yet he was still found guilty.
 Principle: at common law, when you go into
a state or foreign country, you are bound by
the laws of that place. You proceed at your
own risk if you don’t find out the law.
 MPC 2.02 (9) deals with this: Ignorance of
the law is no defense.
 Mistake of Law:

Reliance on a Court:
i)
State v. Striggles
 Gambling device in the store. The store
owner relied on a lower court ruling.
 No defense to rely on ct’s opinion.

Reliance on Counsel:
i)
Staley v. State
 The defendant married his cousin in Iowa,
moved to Nebraska, and decided to leave his
wife. He was told that the marriage was
illegal by four different lawyers, and so he
married another woman. The state charged
him with Bigomy
 The duty to state the law is with the court,
not the lawyers.
 Can’t use reliance on lawyers as a defense.
If you rely on lawyer’s advice, you do so at
your own risk.
 Policy reason: don’t want to encourage
potential defendants to shop around for the
legal advice they want to hear.
 At common law, strict liability as far as
marital status and bigamy are concerned.
MPC § 2.04 IGNORANCE OR MISTAKE:
(1) Ignorance or mistake as to a matter of fact or law is a defense
if:
(a) the ignorance or mistake negates the purpose,
knowledge, belief, recklessness or negligence required to
establish a material element of the offense; or
(b) the law provides that the state of mind established by
such ignorance or mistake constitutes a defense.
(2) Although ignorance or mistake would otherwise afford a
defense to the offense charged, the defense is not available if the
defendant would be guilty of another offense had the situation been
as he supposed. In such case, however, the ignorance or mistake
of the defendant shall reduce the grade and degree of the offense of
which he may be convicted to those of the offense of which he
would be guilty had the situation been as he supposed.
(3) A belief that conduct does not legally constitute an offense is a
defense to a prosecution for that offense based upon such conduct
when:
(a) the statute or other enactment defining the offense is not
known to the actor and has not been published or otherwise
reasonably made available prior to the conduct alleged, or
(b) he acts in reasonable reliance upon an official statement
of the law, afterward determined to be invalid or erroneous,
contained in
(i)
a statute or other enactment;
(ii)
a judicial decision, opinion or judgment;
(iii)
an administrative order or grant of
permission, or
(iv)
an official interpretation of the public officer
or body charged by law with responsibility
for the interpretation, administration or
enforcement of the law defining the offense.
(4) The defendant must prove a defense arising under Subsection
(3) of this Section by a preponderance of the evidence.
ii)
applying this section to some of the cases:
a.
Striggles:
 Gambling device. Storeowner relied
on lower court. Could possibly fit
into section (3) of 2.04.
 Was it reasonable to rely, and was
the lower court’s decision an official
statement of the law?
b.
Staley: Read Staley pg.450
 Advice from lawyers:
 Could try 2.04 (3)(b)(iv), but is the
county attorney a public officer for
this statute?
 The public officer is probably the
Attorney General.
 County Attorney is probably just a
local practicing attorney.
The Code seems to give excuse to ignorant to factors or elements of the statute, under
common law it doesn’t matter why you were ignorant, you would be culpable
4. Strict Liability and Mens Rea:
 Mala Prohibitum: bad because it’s prohibited

Usually a basis for creating a strictly liable statute

Example: driving on the left side of the road. There’s
nothing inherently wrong with doing this.

Regulatory Offenses

Another basis for treating a statute as Strict Liability: when
the penalty is only a fine
 Mala in Se:

Wrong on its face

Assault, theft, murder

True crimes

Penalty usually has jail time
 MPC provisions for Strict Liability: 2.05 2.02 2.02 (3)
a)
Commenwealth v. Mixer
i)
Issue: whether a truly innocent person may be
criminally liable under a statute that does not have a
mens rea element?
 Transporting liquor
 Evil involved was so substantial, that the
legislature dispensed with the mens rea
requirement. Now it’s easier to enforce.
Perhaps greater deterrence.
 Problem with utilitarian argument. If a
legislature dispenses with a mens rea
requirement because of the seriousness of
the crime, then wouldn’t it have to dispense
with the mens rea requirement for homicide
or other serious crimes?
 Assumption in the case: perfectly
permissible to have Strict Liability crime if
the legislature wanted it to be this way.
 Sometimes the legislature doesn’t even think
about putting in a mens rea requirement.
 Court looked at legislative intent: the
legislature had earlier taken out “willfully”
part of the statute.
 Also, trains can easily be enforced, but
trucks cannot easily be enforced.
 General Deterrence: truck drivers will check
their trucks or be put in jail. If he refuses to
drive the truck, the truck owner will have to
b)
c)
find a new truck driver, but the problem will
still exist.
 When making a strict liability statute, there
will be some unfairness, such as this case.
 Applying this case to the MPC, there is a jail
sentence, so therefore we must use the
default rule (P, K, R), and since this man
had no knowledge and was innocent, he
would not be guilty.
State v. Williams
i)
Defendant was caught transporting 25 boxes with
more than 10% containing little catfish.
 Crime: protect the community. Preserve the
fish in the community.
 Two lines of cases to follow: Birney—slave
case, had to show mens rea; Kelly—
adulterated molasses. Strict Liability
statute.
 Looks more like Kelly, a public welfare
statute, but the court actually follows
Birney.
 Legislature: trying to protect public welfare
 Unreasonable and impracticable to inspect
the ship.
 To be guilty, had to show negligence.
 The defendant was not in a position to know
about the little fish.
 The court, unlike Mixer, sees the unfairness,
and tries to compromise—takes the standard
from Strict Liability to Negligence.
Morissette v. United States
i)
Defendant took old bomb shells off of government
property 2.202 (4) 1.13(10)
 Statute reads: whoever steals or knowingly
converts from the U.S. gover—shall be fined
not more than $10,000 or imprisoned.
 He knows that he took the stuff, but he
thought they were abandoned.
 Problem: we have a mens rea, but does it
only modify the verb or also the
circumstance element?
 Supreme Court decided that he must act
knowingly to both elements.
 Thought the shells were abandoned, he did
not have the intent to steal
If you have knowingly in the statute, then 2.02(5) governs, if no culpability in the
statute then 2.02(3) governs how to read in culpability or whether there is strict liability.
d)
Regina v. Prince
i)
the defendant took a minor out of the parent’s
control without parental permission
 The charge was: whoever unlawfully
 Takes
 Unmarried
 Girl
 Under 16
 Out of possession
 Of parents
 She told the defendant that she was over 16.
He reasonably believed that she was 18.
He’s not negligent.
 Defendant argued: must have the mens rea
for every element.
 Court ruled (except for Brett) that the age
requirement is strict liability.
 Why did the court say this element was strict
liability? I’m not sure.
 I think that the court thought that it was
immoral to be with a minor girl, and
therefore the age requirement is strict
liability.
 Under MPC, probably a different result.
Assuming 2.05 does not apply, there is no
culpability factor on the face of the statute,
so the default rule applies. Age is a material
element, and since the defendant belief was
reasonable, he should not be guilty.
 This case seems to establish strict liability
for age factors in sexual offense context.
 Policy reasons for convicting the defendant?
Encourage marriage, rather than the other
alternative. Marriage is a preferred state
interest.
 MPC provision for statutory rape: child
under 10 years old
 Some states are becoming more liberal as to
the strict liability age requirement: if the
defendant made a reasonable mistake, the
defendant will be off the hook.
If MPC applied and there was jail time on sentence (which takes it out of 2.02 (5),
then 2.02 (3) would govern since no culpability in the statute (unlawful does not give it
culpability. Only Purposefully, Knowingly, Reckllessly
III. HOMOCIDE:
A. Historically:
1. Originally, only one generic crime of Homocide at C/L
2. Split into two categories:
A. Murder
i)
Malice Aforethought
B. Manslaughter
i)
No Malice Aforethought
B. Malice Aforethought:
1. Causes a lot of problems
A. Definition of Malice:
i)
To act wickedly, evilly, have an evil motive
2. Today:
A. Malice Aforethought has been reconceptualized into the four
categories of murder, and has lost its original meaning.
i)
None of the four categories need “evil motive”
C. Murder: four basic categories:
1. Intent to Kill Murder (intentional)
2. Depraved Heart Murder (Gross Recklessness I think)
3. Intent to cause grievous bodily harm murder
4. Felony murder
D. Manslaughter:
1. Two types:
A. Voluntary Manslaughter
i)
Provocation, heat of passion
B. Involuntary
i)
Not intentional
E. Problem with Homocide:
1. Grading Homocide
A. Not all killings are the same
i)
Some killings are more serious than others
2. Literally talking about life and death
3. Culpability issues: Mens Rea stuff
A. Rage v. Premeditated (not as culpable v. culpable)
4. In the U.S., we have drawn a further distinction with murder:
A. 1st Degree Murder
B. 2nd Degree Murder
5. Why the Distinction?
A. The penalty. Some murders are not as heinous as others, and
therefore may not warrant the death penalty
F. Murder Analysis:
1. Intent to Kill Murder (intentional)
A. Begins with Distinctions:
i)
1st Degree Murder:
 Deliberate and Premeditated
nd
ii)
2 Degree Murder:
 Intentional
B. Distinguishing intent from non-intent:
i)
Haack (pg. 514)
 Facts: Defendant took a gun to a party.
Defendant wanted to scare the deceased. He
thought that the revolver spinned one way,
but it actually went the other way. There
were four bullets in the gun.
 Defendant alleged that his intent was only to
scare.
 Court said: he had a gun, he knew it was
loaded, you can infer intent
 Court didn’t believe his story.
 Subjective intent: maybe an accident.
Circumstantial evidence says otherwise
 Have to make inferences as to the state of
mind (otherwise we would always need
confessions)
 It’s not irrebuttable proof. The jury may
infer intent from the circumstantial
evidence, as opposed to “you must decide.”
 Intent to kill may be inferred—is this
subjective or objective?
 Subjective: inferences can be made from the
circumstances. It would be an objective
standard if we said, “What would a
reasonable person infer?” This would
reduce intent to negligence
 Deadly Weapon Doctrine: intentionally uses
a deadly weapon on another: can presume
intent (not conclusively). Can use as an
inference that he intended murder
 Court found intent, defendant got 2nd degree
murder
C. Determining Premeditation:
i)
State v. Bingham
 Actor did not know the victim. The actor raped the
victim and strangled her. The actor was charged
with 1st degree murder (premeditated).
 Evidence of premeditation: based solely on the time
it took to strangle the woman: 3-5 minutes


Jury: found actor guilty of 1st degree murder
Appeals Court: time alone is not enough: guilty of
2nd degree murder.
 3-5 minutes: insufficient time for premed? He saw
her when he did this.
 Court said no evidence of motive, planning—not
true. Crime committed in a secluded place, could
have killed the woman to hide the rape crime.
 Reasons for ruling: Court is worried about blurring
the distinction between premed and intent (1st
degree and 2nd degree). Afraid that if you use the
mode of killing itself—we won’t be able to draw
the distinction. If you allow the mode of killing
itself to be 1st degree murder, you could get a lot
more 1st degree murders. What’s wrong with that?
Poison is allowed to show premeditation.
ii)
People v. Waters (pg. 523)
 Black person with a group of friends, shoots at a
white man and his wife at a drive-in. Used two
hands on the gun. Shot at the man first, and two
seconds later, shot at the woman. The woman died.
 Motive: “can I have a match”
 Sufficient evidence to conclude premed between the
shots.
 Different than the Bingham case
 Evidence here: had a gun, used two hands, aimed
and fired.
 Court said he was black. Perhaps racial bias.
 Is race a motive? A black man shooting at a white
man. Court may be imputing this motive, even
though there is no evidence of a race crime.
 Court found premed, 1st degree murder
D. Should premed be the determining factor?
i)
Hypo: man walks across the bridge, and for no
apparent reason, kicks off a young boy. No premed,
but is the man any less culpable? The man has total
callous to human life.
ii)
What about the man who thinks about the murder,
agonizes over it, has pains of conscience, but finally
commits the murder. Is he any more culpable? Yet,
he receives 1st degree murder.
iii)
Other times, you have the hit-man, who plans
everything.
iv)
In separating out the most heinous murders, premed
may not always be the best test to use
E. Anderson Factors:
i)
People v. Lucero
 Facts: Vietnam vet has a goose, lures two kids into
his home, and commits murder. Defendant charged
with 1st degree murder (premed and deliberation).
Court looks at Anderson Factors:
 Facts showing planning an act
 Facts showing motive
 Manner of killing—preconceived design
 Planning activity:
 Lured the children into the house
 But, dumping bags all over the place,
careless—little evidence of planning
activity.
 Motive:
 Weakest element
 Hands tied: killed to cover up crime
 But no evidence of sexual assault
 Preconceived design:
 Strangulation
F. MPC Definition of Murder
i)
210.2 Murder
2. Depraved Heart Murder
A. Basic Definition:
i)
“condemning as murder unintended homicide where
the defendant kills under circumstances evincing
extreme recklessness regarding homicidal risk.”
ii)
Unintended
B. Degree at Common Law:
i)
Usually 2nd Degree Murder
C. Factors in Determining Depraved Heart Murder:
i)
Likelihood of causing death under the
circumstances
ii)
Gravity of the Risk
iii)
Utility of the Risk
iv)
Subjective Awareness of the risk
D. Cases study:
i)
Banks v. State
 Defendant shot at a passing train, killed a worker on
the train. No intent to kill. Found guilty by the
court.
 It’s cruel to shoot into a train without any
provocation.
 Was the train a passenger train or a freight train?
Does it matter whether he thought he could hurt
someone?



ii)





iii)
Depraved Heart Murder Analysis:
 If freight train, likelihood of causing death is
low
 The gravity of the risk can be high, if it
occurs.
 Utility: almost zero. Simply entertainment.
Looking for a justification (speeding
through a residential neighborhood to take
pregnant wife to hospital, self-defense).
 Actor’s awareness: here’s the key. If you
stick to definition of recklessness, the
defendant must think about it. If no
subjective awareness, and we convict him,
it’s a negligence standard. Often courts
don’t look at this distinction.
Hypo showing importance of Subjective
Awareness:
 100 guns lie on the table in the classroom.
The student knows that one is loaded. He
picks one gun, points it at the professor, and
shoots. If he picked the gun with the bullet,
he will be liable for murder. Sure, the
likelihood of causing death was low, but he
had a subjective awareness that this could
happen.
Banks: a classic depraved heart murder case only if
he knew about the risk (court was wrong).
Pears v. State
Drunk guy who was warned three different times
about his drunk driving, but he continued to drive.
He hit a car and caused the death of some of the
people in the car.
This case points out: cars can cause accidents, but
we usually don’t extend severe liability when we
cause the death of another while driving.
Essentially, there is a high degree of utility.
Court relied on the fact that the defendant had
actual notice. He had been told 3x to stop what he
was doing.
Often, if a person is drunk and kills someone while
driving, it is not depraved heart murder—there is no
knowledge of the risk. Here, however, the
defendant knew that what he was doing was bad.
Sufficient evidence of extreme indifference to value
of human life.
Commonwealth v. Malone

Russian Roulette case. The deceased’s “friend”
shot three times. No evidence that he intended to
kill his friend.
 Court said: this man had malice
 Recklessness was so gross that we are comfortable
with giving him Murder.
 Look at factors:
 Likelihood of risk: very high
 Gravity of risk: high
 Utility: a stupid and dangerous game
 Be careful here: don’t say, “he should have
known” That lowers the standard to negligence.
Don’t want to extend murder on “should have
known.”
iv)
Northington v. State
 Defendant mother didn’t feed her child and the
child died. Charged with murder.
 Court reversed the conviction because, even though
she had malice, she did not have universal malice.
Her malice was only directed to one person—the
child. She did not have extreme indifference to
human life generally.
E. MPC. 210.2 Murder:
i)
(1)(b) “it is committed recklessly under
circumstances manifesting extreme indifference to
the value of human life.”
ii)
2.02(2)(c)
 Definition of Recklessness: “consciously disregards
a substantial and unjustifiable risk”
3. Intent-to-Cause-Serious-Bodily-Injury Murder
A. Definition:
i)
Malicious intent to cause serious injury
 Based on intent theory
 A person intends to cause serious harm, but does
not intend the death of the victim.
 If Grievous Bodily Harm results, assume the mens
rea for the death result.
 Infer malice for the death from the intent to cause
grievous bodily harm.
B. Differences between this Murder and “Intent to Kill” and
“Depraved Heart Murder”
i)
Intent to Kill: actor intends to cause death. This
murder, actor does not intend to cause death.
ii)
Depraved Heart Murder: actor is aware of the risk,
but he simply doesn’t care about it. There’s no
intent element. Here, there is an intent element.
You didn’t intend it, but you are still liable.
C. Today:
i)

ii)


Many jurisdictions have abolished this type of
murder
Many times, Depraved Heart Murder and this type
of murder merge together.
Model Penal Code:
Depraved Heart Murder will cover this type of
Murder
Example: In Dorazio, the defendant had total
indifference to human life as he beat the guy to a
pulp. But, to apply the MPC, the state must prove
that he knew about the risk (as he was hitting the
guy, someone told him that he was going to kill the
man, and the actor continued.
D. Case Law:
i)
Commonwealth v. Dorazio
 Former boxer was a union leader. The deceased
was the leader of a rival union. The actor chased
after the deceased, beatt him up, and the guy died.
 Normally, bare fists are not enough for this crime.
You must show intent to inflict great bodily harm.
 The intended injury was so serious that it naturally
and commonly involves loss of life.
ii)
Smith
 Cop on the car, dragged, and ran over.
 Issue: whether defendant could have foreseen that
his actions would cause the death.
 Objective perspective—that’s a problem
 This category of murder is supposed to be
about intent to cause grievous bodily harm. The
jury instructions replaced intent with negligence
 If a reasonable person would have known
that GBH would occur, and this leads to death, then
he is guilty of murder.
 Substituted negligence as the Mens rea for
murder
 Negligence: is a basis for homicidal liability,
but it’s called manslaughter.
 Reversed 1000 years of tradition (mens rea
required for murder)
4. Felony Murder (FM)
A. Definition: If a felon causes a death to occur during the
commission of the felon, he is guilty of FM
B. Degree of Murder:
i)
Many jurisdictions—capital murder, 1st degree M.
C. Policy considerations about FM:
i)
All the state must prove is that the defendant
committed the felony.
 It’s a gem for the state!
 It’s basically strict liability for murder.
 A bank robber could see himself as simply a
bank robber, nothing more. He may hate guns, but
if a person is killed as a result of the felon, he’s
guilty.
ii)
Why allow this crime?
 Utilitarians believe: deterrence. Deter would-be
criminals from committing the crime.
 Doesn’t deter people from committing the
crime because the killings are accidents
 How do you deter accidents?
 People still commit the crimes
 Some argue that felonious behavior is dangerous,
and therefore more murders result.
 Statistics say the opposite.
 Retributivists feel that FM is wrong—it goes
against culpability. If the killing was accidental, the
person had no intent to murder, and therefore he
should not be guilty.
iii)
Public view of FM
 They like it. People are angered, and they want eye
for an eye.
 If it’s your mother that died, you will want justice
iv)
Holding a criminal guilty of murder because he
accidentally killed someone is questionable:
 If a man intends to kill chickens in a chicken coop,
and shoots at a chicken, but accidentally misses and
hits someone (and it’s bizarre to think that someone
will be there), he could be guilty of FM. But, if the
owner intends to kill chickens, shoots, and
accidentally hits a person, he will not be guilty. His
act will be excused. In both cases, it’s the same
state of mind.
v)
FM is a manifestation of the old “wicked mind”
idea
D. In General:
i)
State v. McKeiver
 Defendant was robbing a bartender and he shot in
the air. One of the customers in the bar became
scared, had a heart attack, and died. The state
charged the felon with felony murder.




ii)



The defendant didn’t intend to kill anyone. He shot
in the air to scare.
Court ruled: guilty of murder
No evidence of intent
Bootstrapping:
 In the thirsty sailor case, the court didn’t
allow the state to bootstrap the mens rea from the
theft onto the arson
 In this case, it’s the opposite. The court
allows the state to bootstrap the mens rea from the
felon (robbery) onto the murder charge.
 All the state has to prove is the intent to
commit the felon. It must not prove an intent to
kill.
 Once guilty of robbery, if you have killed
someone, accidental are not, you are held strictly
liable, mens rea doesn’t matter for the homicide,
you are cooked, no defense!
People v. Aaron
Michigan court getting rid of FelonyMurder. Jury
found that they could convict the armed robber of
1st degree murder “if they found that defendant
killed the victim during the commission or
attempted commission of an armed robbery.”
Went through a history of FM:
 Lord Dackres case: not really applicable.
The whole gang agreed to kill someone that entered
the woods (conspiracy to kill, accomplise liability)
 At common law, it didn’t matter whether the
person was convicted of murder or a felony—both
were punishable by death. Today, robbery is not a
capital offense
 Courts are already putting limitations on the
FM rule.
Court had to deal with a Michigan statute that
appeared to codify the FM rule.
 Said that the legislature did not intend this.
The first word of the statute: Murder. Murder is a
legal term of art, as opposed to the ordinary
language of killing, death. By using murder, the
legislature meant malice. Malice includes: intent to
kill, intent to do great bodily harm, and Depraved
Heart Murder.
 The purpose of this statute, therefore, is to
define 1st degree murder.
 If you intend to kill and rob a bank—1st
degree murder. If you intend to cause GBH and rob
the store—1st degree murder. It must be felony +
intent.
E. “Dangerous” Felonies
i)
Most courts: limit FM rule to only “dangerous
felonies”
 Some jurisdictions list which felons allow for 1st
degree murder.
 MPC has taken this approach: 210.2
ii)
What about courts that have 2nd degree FM, but the
statute does not list what those crimes are?
 1st approach: reject “inherently dangerous” and
make all felonies 2nd degree murder
 2nd approach: felony is dangerous “because death
resulted due to defendant’s commission of a
felony.” I think that would make the felony murder
in this case 1st degree murder.
 3rd approach: Look at the felony in the abstract and
determine if it is dangerous.
iii)
People v. Patterson
 Charged with 2nd degree murder. The felony he
committed (transferring cocaine) was not one of the
felonies listed as 1st degree murder.
 Court says: look at the felony in the abstract. If the
crime is inherently dangerous, it is 2nd degree
murder.
F. MPC Approach to FM: 210.2 (b)
i)
Presume recklessness and indifference if:
 “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.”
ii)
Rebutable presumption:
 jury can presume recklessness by the act
 Example: arson burns down a house, and a
firefighter dies.
 Arson can respond to the presumption: if the arson
checks out the house, only wants the insurance
proceeds, and thinks no one is in the house, but in
reality someone is sleeping in the corner, he can
rebut the presumption
 It’s a tough presumption to rebut

At common law, the felony is a conclusive
presumption of guilt. The felony is constructive
mens rea, strict liability. The code made it
rebuttable.
G. The Merger Doctrine:
i)
You can’t merge the felony into the murder.
ii)
People v. Sears
 Defendant entered the house with a crow-bar. His
crime—assault. He beat his ex-wife and killed the
wife’s daughter.
 Could have been charged with other murders—
premeditated, for example, but FM is much easier.
 Appears like actor should be liable. He committed
a felony, and a killing resulted.
 The court rule: the felony must be independent from
the homicide. Assault got merged into murder.
 Kevin’s though: if you merge assault with murder,
you will always get FM. Murder almost always has
an assault! By doing this, you don’t ever have to
prove intent to kill—that’s a scary thing.
 If we allowed assault to be a predicate for FM, there
would be FM every time a killing occurred.

 Example: If husband sees his wife in bed with
another person, and the husband kills the man, it’s
manslaughter. Since manslaughter is a felony, the
state could convict him of FM. It would eliminate
the felony of manslaughter. The legislature
wouldn’t want this. Why else did they put
manslaughter on the books?
 Example: if rape is the cause of death. Normally,
rape does not cause death. But if it causes death,
the state still can’t merge the felony of rape with
murder and call it FM. The rape and the death are
not independent. The state cannot merge the crime
of rape with murder and call it FM. In the normal
case, the rape doesn’t kill the victim, and it’s
independent of the Murder, and therefore FM is
applicable.
 MPC: presumes recklessness from the rape,
and the defendant has to prove otherwise.
H. Causation Limitations:
i)
State v. Canola
 Robbery of a jewelry store. Two felons, and one
was killed by the store owner. Charged the



defendant with the death of the owner and the death
of the co-felon.
Court said: not liable for the co-felon.
Under deterrence theory, the defendant should be
guilty for both death (deter crime).
The court wanted to restrict the FM doctrine.
Killer
1. Felon
2. Felony Victim or
Police Officer
3. Felony Victim or
Police Officer

ii)



Deceased
1. Felony Victim
2. Co-Felon
Felony Murder
1. Yes
2. No
3. Third Party or Police
Officer
3. No
Why No liability on two or three?
 Agency Doctrine: no relationship between
killer and the deceased
 Justifiable Homocide: justified means a right
to kill. If it’s not unlawful, how can we hold the cofelon liable? (if it’s an excused killing, maybe can
pin liability on co-felon)
 Trend is to favor Canola, use agency theory.
People v. Antick
A and B are co-conspirators. After the burglary, B
is alone in the getaway car. Cop stops B, and B
shoots at the cop. The cop shot back and killed B.
The state charged A with the killing.
The killer is the police officer—agency theory.
Be careful. If a co-felon kills another person, there
could be accomplice liability. A must be linked to
B. Here, we didn’t have it. If B had killed the cop,
A could be vicariously liable (I think, but I’m not
sure).
G. Manslaughter Analysis:
1. Voluntary Manslaughter:
A. Provocation:
i)
The distinguishing factor between manslaughter and
murder
ii)
Provocation at Common Law (pg 595)
 Assault and Battery
 Quarrel and fight
 False Imprisonment
 Adultery (gender specific. Only the husband can
use manslaughter)


Sodomy on son
What is NOT provocation:
 Words, gestures, injuries to property,
breaches of K,
B. Traditional View:
i)
Tripp v. State
 A man went on a killing spree, said that he was
legally provoked by his girlfriend (he thought she
was going back to her real husband).
 Insufficient evidence of provocation
 Provocation must be legally adequate (pg 597):
 There must have been adequate provocation
 The killing must have been in the heat of
passion
 It must have been a sudden heat of passion,
that is the killing must have followed the
provocation before there had been a
reasonable opportunity for the passion to
cool;
 There must have been a causal connection
between the provocation, the passion, and
the fatal act.
 The man did not fit any of the factors. There was a
cooling off period, the woman was doing a lawful
act (being with her husband is legal!)
 Court took a narrow view on the four factors. Many
court today are more broad and liberal.
C. Why would the law allow provocation to mitigate?
i)
Takes into account human imperfections
 It’s an out of character act
 Had the person not acted out of rage, the person
would have thought about the consequences
 A person in rage isn’t as culpable as a cool-headed
murderer.
 In anger we do some things we regret
ii)
In some ways, the actor is partially justified:
 For example, in Stephen’s list, the people are
involved in unlawful acts ie. Adultery, assault and
batter, sodomy.
 At common law, the killing is partially justified
because of the unlawful acts
D. Modern View: Must be a showing of reasonable provacation
i)











ii)



People v. Berry
Man and woman were married for three days, when
the woman traveled back to Israel. She came back
and told her husband that she had slept with another
man. She would tease him about how much more
she loved man back in Israel, stimulate him, and
one time had sex with her husband. She told her
husband that Yako was sexually superior.
He strangled her one time, and after she got out of
the hospital, he strangled her again.
Doctor of the defense testified that she had an
unconscious desire to kill herself.
This evidence makes his story of provocation more
credible.
No grounds for provocation at common law—
cooling off period, screaming isn’t enough, he
didn’t catch her in the act of adultery.
Court stated: no specific type of provocation is
necessary. It’s a reasonable man standard, not the
person’s own standard. Verbal provocation may be
sufficient
At the time of Berry, these were the manslaughter
factors:
 If jury concludes that there was provocation
(can mean anything, even words) such that:
 Defendant must have been provoked
(subjective)
 A reasonable person would have been
provoked
 Can’t have too much time for the defendant
to “cool off” (objective)
Even though there was no unlawful act, the question
is: was this guy enraged and if a reasonable person
would act this way.
Feminist argue: an accommodation for male anger.
The law shouldn’t recognize anger, rage.
Berry court used this standard, “ordinary reasonable
person under the given facts and circumstances.”
Courts follow the liberal views of this court
Camplin
A 15 year old was buggered and he later killed his
attacker.
Argued special circumstances: 15 years old
Court said: jury should be allowed to take age into
account—how a reasonable 15 year old would feel.


This is moving away from an objective standard.
How far does this go?
 Killers of 9-11. They hated America. Is this
a special circumstance? Idiosyncratic moral
views?
 What about the man who is with a prostitute
and is impotent. The prostitute makes fun of
him. Is this legal provocation? Physical
Characteristics?
 What about race (racial epithets)? Mental
Abnormalities? Race is generally taken into
account
 MPC 210.3, pg 615
 Physical Characteristics: taken into account
 Mental Abnormalities: sometimes taken into
account
 Idiosyncratic Moral Views: not taken into
account
2. Involuntary Manslaughter:
A. Criminal Negligence Manslaughter
i)
Gross Negligence:
 Sometimes courts will find negligence as sufficient
for manslaughter, but it must be more than regular
civil negligence.
ii)
Courts are sometimes unclear about whether
negligence or recklessness is permissible.
 What a reasonable person should have known, or
what a person did know but disregarded it.
 Some courts: must have subjective awareness, other
courts say: guilt based on gross negligence
iii)
State v. Williams
 Native American parents of a sick child. The child
had a tooth infection, and the infection eventually
spread throughout the entire body. The parents
loved their son, but the boy died. They thought that
if they took the boy to a doctor, the doctor would
report them to the state and the state would take
away the baby.
 No intent to kill, no recklessness (as defined by
MPC—had no knowledge of the risk).
 There was a time-frame in which the parents should
have taken the baby to the doctor.
 What’s the point in prosecuting the parents?
o Send a message? Parents, be careful.
o Deterrence theory
o Retributivist: wouldn’t like this result.
Probably shouldn’t be any punishment at all.
 Is it appropriate for the law to make negligence
criminal?
 These parents were poor, uneducated.
o Is everyone just supposed to act reasonably,
or can we draw distinctions?
o To have recklessness you have to have
subjective understanding
iv)
People v. Strong
 The defendant said he could stab people without
killing them.
 Convicted of 2nd degree manslaughter.
 Trial court did not give instruction on criminal
negligence homicide.
o No evidence to support the charge
o People know you die from doing this
o If the didn’t intend, he was at least reckless.
 Appeal says its possible. He could have thought no
harm would have come about.
 Why not charge him with murder? Depraved heart
murder—extreme indifference to the value of
human life, extreme recklessness. But, this was a
religious practice, so state probably only charged
him with ordinary recklessness.
B. Unlawful Act Manslaughter: Bootstrapin unlawful act to mans.
i)
U.S. v. Walker HAS TO BE A MISDEAMENOR
NOT A FELONY, THAT WOULD BE FELONY MURDER NOT
UNLAWFUL ACT MANSLAUGHTER. NO NEGLIGENCE
NEEDED HERE, STRICT LIABILITY.
 Defendant dropped a gun in the stairwell and it shot
someone. The unlawful act: carried a gun without a
license, a misdemeanor.
 Similar to FM, but only this is a misdemeanor.
 Court limited the doctrine: only inherently
dangerous acts.
 Issue: whether this offense is a sufficiently
dangerous crime to be used as a predicate for
manslaughter liability.
 Court felt that is was sufficiently dangerous
 Strict Liability for the death (same as FM)
 Defendant doesn’t even have to be negligent about
it. As long as he commits a misdemeanor.
 How dangerous is this offense? Would having a
permit make a difference? To get a permit, you
probably have to take a safety course.



IV.
This doctrine has been abolished in many
jurisdictions.
Is there utilitarian value for holding defendant
guilty? Get people to buy permits. You can’t
prevent accidents.
What if you illegally part, and an officer falls on the
ice and dies. Are you guilty? Is the misdemeanor
dangerous enough?
INCHOATE CRIMES (No harm actually committed)
A. Attempt:
1. Actus Reus:
a. Mere Preparation v. Attempt
i. Example: Shooting a gun at someone. A
intends to kill B, goes to the store to get the
gun (starts to drive), and cops arrest A. Has
A gone far enough? What if A had bought
the gun?
2. Last Proximate Act (LPA):
a. A must actually pull the gun trigger to be guilty of
attempt
b. Probably inadequate
c. Goal of attempt law: stop dangerous conduct
i. With LPA, the dangerous conduct likely has
gone too far. We don’t want to increase the
danger.
ii. We want to neutralize the actor before the
harm occurs.
3. MPC 5.01 Attempt crime:
a. “an act be a substantial step in a course of conduct
designed to accomplish a criminal result, and that it
be strongly corroborative of criminal purpose in
order for it to constitute such a substantial step.”
b. Basically, two requirements: acting with the kind of
culpability and making a substantial step toward
commission of crime
c. U.S. v. Jackson
i. Adopted the MPC approach. A case about
robbers planning to rob a bank. One of the
robbers sings, but the other robbers try
anyways to rob the bank.
ii. Under LPA, no guilt.
iii. No question about mens rea (robber spilled
the beans), the question was—did the
robbers go far enough. Court said yes.
4. Inferring Actus Reus from Mens Rea:
a. If we have evidence of the defendant’s intent, it’s
much more easy to get actus reus. Their conduct
looks fishy.
i. McQuirter v. State
1. Alabama case. Black man stepped
out of the car, and a woman was
frightened. Charged with attempt to
assault a woman. Basically, an
attempt to attempt to harm another
(legally impossible).
2. The court saw the actus reus
(standing on the sidewalk), and
inferred the Mens rea. Then, from
the mens rea, it inferred the actus
reus. It’s a bad case.
3. Law of attempt—subject to
manipulation, misuse
5. Solicitation:
a. Similar to attempt
b. A. Solicitation defined: The common-law crime of
solicitation occurs when one requests or
encourages another to perform a criminal act,
regardless of whether the latter agrees. [222]
c. State v. Otto
i. Guy in a bar lamenting about how the local
police chief thinks he killed his missing
wife. He tells the bartender he would like to
find someone to kill the chief. The
bartender tells the police, and the police set
up a phony hit-man. The defendant
contracted to do the job, and paid $250 up
front.
ii. The Idaho court said: no attempt. If
anything, it’s solicitation.
iii. What if—hit-man had played along more
and gone to the chief, pulled out the gun,
and said, “don’t worry, I just have to do this
so we can convict the defendant of attempt.”
iv. This case probably holds: can’t attempt M if
you hire a hit-man and the hit-man is an
undercover cop.
v. Defendant had all the necessary culpability.
He did everything possible to kill the man.
He is guilty of the LPA! He couldn’t even
had stopped the killing had he wanted to!
vi. Simply, the defendant lucked out. Why
should luck have that effect?
vii. Another problem—solicitation isn’t as
punishable as attempt. Furthermore, as the
dissent says, there is no crime of solicitation.
6. Mens Rea
a. Common Law Approach:
i. Thacker v. Commonwealth
1. Three drunk guys walk past a tent,
talk to a woman. Drunk guy shoots
at a lantern, almost kills a mother
and baby.
2. Court said: never had intent to kill,
not guilty of attempt.
3. Must have specific intent to commit
the attempted crime. He must
purposefully shoot to kill to be guilty
of attempted murder. Knowledge
alone may not be enough. Only
some courts say knowing is enough.
4. Had baby been killed, would have
found man guilty of depraved heart
murder (he knew that the family was
in the tent).
5. Guilty of nothing—simply because
he missed.
6. Look at Note 2 (pg 748). In some
jurisdictions, not guilty because no
purpose is present, but in other
jurisdictions, guilty of attempted
murder because she knew people
were on the plane.
b. MPC Approach:
i. People v. Krovarz
1. Defendant attempted to rob a store.
His intent was to be put back into a
mental institution. He used a putty
knife, but was wrested to the ground
before he could finish the job.
2. District Court acquitted the
defendant because he did not have
the specific intent. This came from
the Frysig case which stated that
purpose is the only mens rea that will
suffice.
3. Under MPC, knowledge is enough.
4. Need the kind of culpability required
for commission of the crime. With
robbery, knowledge is enough.
ii. MPC elements:
1. Conduct Elements: purposefully
2. Result Elements: purposely or
knowingly
3. Circumstance Elements: found in
comments. Must act with the
culpability that is required for the
commission of the completed crime
4. CE: Page 791
5. Example: statutory rape. S/L for
mistake of age. What if arrested
before the act. Mistake goes to
circumstance element. Whatever the
mens rea is for the underlying
crime—it’s S/L, so he’s guilty. This
would come out differently under the
Common Law (must show purpose).
c. Renunciation:
i) At common law: a change of heart has no effect.
If the actor has moved past mere preparation and
attempted the crime, he’s guilty of the crime.
ii) People v. Staples
1. Mathematician gone bad ha ha.
2. Starts drilling whole in roof but decides
he doesn’t want to finish the job.
 At common law he would still be
found guilty of attempted robbery
 Under MPC there is an abandonment
clause, allowing him to be free of
any charge because he stopped.
iii) MPC approach:
1. 5.01(4) pg. 758
 Must be complete and voluntary
 It’s no defense if he voluntary
abandons the crime only because he
hears the sirens coming down the
street.
2. If there’s a defense, there’s an incentive to
stop, turn around, and change.
7. Impossibility:
a. Legal v. Factual Impossibility:
 Legal:
o Jaffe. Defendant attempted to receive
felonious property. He found out later that
the property was not stolen, but that what he
was doing was perfectly legal. It was
impossible for the defendant to commit the
offense.
o Stuffed Deer. It was legal to shoot a stuffed
deer, and therefore he was not guilty
o Reasoning: if it’s legally impossible to be
guilty of the underlying crime, how can the
actor be liable for attempt?
 Factual:
o Pick-pocket. Can’t steal anything because
nothing in the pocket.
o Raping a dead person. An offense against a
living person.
b. Problems with the distinction:
 In both instances, the defendants have the same
culpability (intent to commit a crime).
 One defendant is guilty and the other is not merely
because of a fortuity (like Jaffe)!
 No good policy reasons for the distinction (it’s
almost arbitrary)
 Almost impossible to distinguish cases of legal and
factual impossibility.
c. Truly Legally Impossible:
 Jaffee goes to NJ and does the same thing as before.
This time, however, there is no such crime in NJ.
He thinks there’s a crime of this sort in NJ, but in
fact there isn’t. Jaffee was simply imagining a
crime that does not exist. A defendant can’t be
punished unless the crime actually exists (the
defendant is creating his own criminal system).
d. MPC approach:
 People v. Dlugash
o A shot deceased in the chest. Five minutes
later, the defendant shot the man in head.
Can’t charge with murder because it is
uncertain whether the man was dead or not.
o NY adopted the MPC approach.
o MPC application: “if such crime could have
been committed had the attendant
circumstances been as such person believed
them to be” (from case). So, if defendant
thought that the man was alive, then he’s
guilty.

Hypo from class:
o A intends to kill B while B is sleeping. A
goes into the bedroom, and shots at the bed.
Fortuitously, the defendant was in the
bathroom at the time of the killing. A is still
guilty because of factual impossibility
o A intends to kill B while B is sleeping. A
goes into the bedroom, and this time, right
before A shoots, B has a heart-attack and
dies. A is not guilty because of legal
impossibility.
o Look at the two hypos—are there any
differences in the degree of culpability? In
both cases, the same acts, the same state of
mind, yet different results. All because of a
mere fortuity. This is one reason why the
MPC rejects this.
o The defendant did all that he could do to
commit the crime, yet as mere luck, he
might not be guilty. Often, courts will just
say that it was a factual impossibility and
hold him liable.
o Code looks at it from the defendant’s state
of mind.
o Does this extend culpability too far?
Probably not. The people in these examples
are dangerous, have threatening behavior.
Most courts follow the MPC on this one.
e. Third Approach: Objective Elements:
 U.S. v. Oviedo
o Drug dealer passed phony heroin to an
undercover cop. Evidence that he thought it
was heroin (field test, hidden in the TV)
o Court rejected CL and MPC approach.
Looked at objective elements.
o “in order for a defendant to be guilty of a
criminal attempt, the objective acts
performed, without any reliance on the
accompanying mens rea, mark the
defendant’s conduct as criminal in nature.”
o “The acts should be unique rather than so
commonplace that they are engaged in by
persons not in violation of the law.”
o It is normally difficult to prove the Mens rea
requirement (but in this case it was proven).
o In the 5th circuit, can you think that: if you
don’t have heroin, you won’t be guilty of
attempt (even if you believe it’s heroin).
o Policy implications: What if government
supplies real Heroin to the dealer, and the
dealer supplies the heroin back to the
government in order to have liability. The
problem—what if the dealer doesn’t supply
the Heroin back to the government! The
government has now introduced Heroin into
society! Why not allow government to use
fake Heroin!
8. Grading:
a. At CL, punish less sever than the completed crime.
 If gun jammed, it was attempted murder, but not
capital punishment.
 Why? No harm has occurred
 Does create some incentive to change your mind
(but not as much because changing your mind is not
a defense).
b. MPC: attempt punishment is the same as the underlying
offense (except for capital crimes)
 The actor is just as culpable, he just got lucky.
 There is a renunciation defense, which is a better
incentive for deterring the crime.
B. Conspiracy:
1. Why Inchoate?
a.
No harm has occurred yet.
2. Adds another dimension to attempt:
a.
More serious because more than one criminal is involved
 Two heads are worse than one
 More difficult to catch, more dangerous
 Can commit more complex crimes (from a case)
 Causes more crime than just the original purported crime
(from a case).
 Increases likelihood of committing the crime (from a case)
3. Difference between Attempt and Conspiracy (as illustrated by Illinois
statute)
a.
Conspiracy:
 “(1) that the defendant intended to commit the offense, (2)
that the defendant and another person entered into an
agreement to commit the offense; and (3) that one of the
co-conspirators committed an act in furtherance of the
agreement.”
b.
Attempt:

“(1) that the defendant intended to commit an offense; and
(2) that the defendant took a “substantial step” toward
committing that offense.”
c.
The act requirement in conspiracy is not as stringent as the
“substantial step” necessary for attempt.
b.
At common law, an “overt act” was not necessary.
4. Procedural Aspects:
a.
Co-conspiratorial exception to the hearsay rule:
 State will charge a conspirator with conspiracy, but won’t
indict him, and the conspirator will be allowed to be a
witness against the defendants at trial.
b.
Venue provision: can bring the suit in any state in which
any part of the crime was committed.
 A conspirator from Delaware could simply call another coconspirator in Hawaii, and the 1st conspirator could be
convicted in Hawaii.
c.
All co-conspirators can be brought into a single trial. It
makes a not as culpable conspirator look more guilty and
more likely to be convicted if his trial is combined with the
trial for the master-minds. (“incriminate persons on the
fringe of offending” justice Jackson)
d.
Raises a misdemeanor to a felony (I think in federal crimes,
at least)
e.
Many agree that this crime goes far, it gives the
government too much power.
f.
The law of conspiracy is very nebulous. It can create a big
web.
5. Actus Reus:
a.
Agreement to commit an unlawful act
 Must be present
 Weniger v. U.S.
o Sheriff and Deputy refused to uphold the federal
liquor laws. The city fathers had a conspiracy ring
going on with alcohol
o Not enough evidence of an agreement
o It could have been that the sheriff and deputy just
didn’t like the laws
 At common law, the act need not be criminal (most
jurisdictions are different. The act needs to be criminal)
b.
Parties to the Agreement
 At C/L, had to have a meeting of the minds (bilateral
agreement)
 State v. St. Christopher
o Son wanted to kill his mom. Son asked his cousin
to help out. The cousin told the police, and the son
was arrested.
o MPC takes a different view: unilateral conspiracy is
possible
o Some jurisdictions hold onto the bilateral
agreement. This court didn’t.
c.
Overt Act:
 At C/L, an overt act was not necessary
 Most jurisdictions require an overt act.
6. MPC: 5.03. Criminal Conspiracy
a.
(1) Definition of Conspiracy. A person is guilty of
conspiracy with another personor persons to commit a crime if with the
purpose of promoting or facilitating its commission he:
(a) agrees with such other person or persons that they or
one or more of them will engage in conduct which constitutes such crime
or an attempt or solicitation to commit such crime; or
(b) agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt to solicitation to
commit such a crime.
7. Wharton’s rule:
a.
Definition:
 “exception to the general principle that a conspiracy and
the substantive offense that is its immediate end are
discrete crimes for which separate sanctions may be
imposed.”
 Any crime in which it is necessary for two people to agree
in order for the act to be criminal—like dualing, adultery.
 The commission of the crime logically will always involve
an agreement so you can’t charge them with separate
crimes (ie adultery and conspiracy).
b.
Case law:
 Gebardi v. U.S.
o Man and woman convicted for violating the Mann
Act.
o This case is not an example of Wharton’s rule (the
man could take the woman without her agreement
and violate the statute).
o Court held that the statute was intended to punish
the man, not the woman.
o What about a catching two people before they
commit adultery?
 Wharton’s rule should not apply
 “law should allow “a basis for preventive
intervention by the agencies of law
enforcement and for the corrective treatment
of persons who reveal that they are disposed
to criminality.” Comment from the code.
8. Mens Rea: Mere Knowledge v. Knowledge + Overt Act
a.
Some jurisdictions allow knowledge alone for conviction of
a conspiracy, others require more than just knowledge.
 People v. Lauria
o Defendant had a calling service. He knew that four
prostitutes used his service.
o Issue: doe he have enough Mens Rea to be guilty?
o Court held: mere knowledge is not enough
o Two line of cases: knowledge v. intent (purpose
under the MPC)
o Sometimes intent can be inferred from
knowledge:
 Defendant has a stake in the venture
 Making more money than usual.
Charging prostitutes more for the
phone service.
 If more prostitutes were using his
service
 MPC requires purpose (desire).
 Defendant could be indifferent
toward his customers’ activities.
 Why isn’t mere knowledge enough
in this case? That’s a hard burden on
business owners. They just want to
make a living. If they were guilty of
conspiracy, they would want to ask a
lot of prying questions to absolve
themselves of liability.
 What the store owner is doing is
running a lawful business. If he is
liable, you could be holding an
innocent person guilty of being a
conspirator.
 The nature of the underlying crime:
misdemeanor or felony
 “no legitimate use for the goods or services
exists.”
 “when the volume of business with the
buyer is grossly disproportionate to any
legitimate demand, or when sales for illegal
use amount to a high proportion of the
seller’s total business.”
 U.S. v. Feola
o Group of drug dealers attempt to assault an
undercover group of drug buyers. The buyers were
undercover federal agents.
o Issue: was it necessary for the defendants to know
that the buyers were undercover cops to be
convicted of this crime.
o Majority ruled that knowledge of the buyers’ real
identity was irrelevant. The fact that the statute
requires an assault on a federal agent is merely a
jurisdictional measure because federal courts
normally don’t have jurisdiction over assault
claims.
o Strict liability for the circumstantial element.
o Dissent: must know that the buyers are federal
agents. Can’t be guilty of both offense and
conspiracy. Don’t see it as a mere jurisdictional
issue. Congress intended to give added protection
to federal officers. Federal Officers is part of the
substantive crime. Virtually every state has an
assault statute, and a separate assault on a federal
officer statute.
o Dissent also points to all of the words in the statute.
It appears that there is a scienter requirement.
o MPC approach: no culpability factor on the statute,
so apply the default rule (purpose, knowledge,
recklessness). Mens rea must relate to all material
elements. If “federal agents” is merely a
jurisdictional element, it’s not material, and
therefore S/L applies. To determine if it’s material,
you got to do the same thing the court did—
interpretation.
o Note 2, pg. 824. Purpose relates to the result and
conduct elements, but not to the circumstance
elements. That is left to the court to decide. Same
with the attempt statute.
9. Corrupt Motive Doctrine:
a.
Every conspiracy charges requires the parties to have an
evil motive for entering into the bargain.
 Most courts, including the MPC, reject this doctrine.
10. Scope of the Conspiracy:
a.
Wheel Conspiracy:
 Kotteakos v. U.S.
o Issue: one big conspiracy or eight separate
conspiracies
o Why argue this?
 More of a chance of being convicted if only
one big conspiracy


If you’re in the conspiracy, you are guilty of
every substantive offense your coconspirators commit.
 Example: maybe you only conspired
to commit fraud, but three other
conspirators actually committed
fraud. You can be guilty of fraud as
well.
 What if the requirement is knowledge +
overt acts. Maybe you agreed to commit the
crime, but others committed the overt acts—
if it’s one big conspiracy, you are going to
be found guilty.
What must state prove to create a rim?
o Stake in the venture
 Knowledge of others in the ring is probably
not enough
 If each conspirator are independent actors,
that’s not enough
 But if each conspirator doesn’t know each
other, but they are dependent upon one
another’s success, then it looks more like a
conspiracy.
o Anderson: opposite result (pg 829)
 Wheel configuration in which the
defendants referred patients for a fee to a
doctor who performed abortions. Since the
defendant knew that the doctor performed
the procedure and that others were referring
patients to this doctor, the defendant was
part of the conspiracy. She was guilty even
though she didn’t know who the other
conspirators were.
 This case was a state case, however, unlike
the Kotteakos case, which was a federal
case.
o MPC view: 5.03(2) pg. 832
 A person is in one big conspiracy if he
knows that the other person is conspiring
with someone else to “commit the same
crime”
 So, a person doesn’t have to know the
identity of the other people, but if he knows
that the person with whom he conspires is
conspiring with others, he will be a part of
the conspiracy so long as the others are
committing the same crime.
 “Same crime” can have an ambiguous
interpretation: crimes of similar nature or the
exact particular crime. Code goes with the
second interpretation. It wants to restrict
rather than broaden the liability. Concerned
that conspiracy could get out of hand.
 So, a prostitute in a huge mob conspiracy
won’t be put into the mob conspiracy
because her crime is different than the other
members of the gang.
b.
Chain Conspiracy:
 Easier to link all together into one conspiracy than the
wheel theory:
o Bruno
 S imports drugs to MM, who distributes the
drugs to retailer 1 in NY and retailer 2 in
NO. One big conspiracy or two? No reason
to connect R1 and R2, unless we use the
chain theory.
o Sometimes we will break the chain up. Actors at
the top of the chain will be guilty of conspiracy,
while the actors at the bottom will not be part of the
conspiracy. This is how the code sees it (I think).
11. Renunciation:
a.
At common law (traditionally), like attempt, there is no
defense
 MPC gives a defense 5.03(6) and 5.03(7)
o “if the actor “thwarts the success of the conspiracy,
under circumstances manifesting a complete and
voluntary renunciation of his criminal purpose.”
o Many jurisdictions follow this
o Some say you try to “thwart the success” then that’s
enough.
 Common law did recognize a “withdrawal” from the
conspiracy.
o The actor had to notify the others that he was
getting out before the crime was committed.
o MPC allows withdrawal if the actor informs the
others or he tells the police about the conspiracy
and what he did.
 Public Policy:
o Incentive for the actor to renounce, reform
o Conspiracy is an inchoate crime. Since no harm has
occurred yet, the actor can prevent the harm.
C. Accomplice Liability:
1. Actus Reus:
i)
Mere presence is not enough:
 Queen v. Coney:
 Prize fighting going on, and the defendants, on their
way home from work, decided to watch
ii)
Requires active participation:
 Woman getting rape, and people cheer criminals on.
iii)
Omissions: almost always, no liability (no duty)
 Hard to prove
 Doesn’t always feel good to hold someone guilty of murder
if the were merely standing around (except for the Nevada
case)
iv)
Punishment:
 The accomplice receives as much punishment as the
principal.
v)
Sometimes, it doesn’t take much to be guilty of aiding and
abetting
 Wilcox v. Jeffery
 News reporter attended an illegal concert in
England. He paid for a ticket, probably clapped
during the concert, and afterwards, wrote about the
concert
 He encouraged the event.
 He never conspired with the performers.
 Shouldn’t the rest of the audience be guilty too!
Liability may be going to far here.
 Basically, if your active, in any degree, and your
actions have a causal effect, you’re guilty.
vi)
Facilitation of the crime:
 Tally
 Defendant was a judge, and he helped in the capture
of a man who was friendly with his sister-in-law.
 Clearly, the judge had the M/R. Did he act enough?
 He never conspired with the Skeltons. His actions
did not encourage the Skeltons (they didn’t know
what the judge did), but…
 He facilitated the crime, he aided the crime, he
made the crime easier.
 State did not have to show “but for” causation. His
actions might or might not have caused the harm.
 The state must show that his actions, in some way,
aided or facilitated the crime. It may not take much
to be an accomplice, but it must be something.
Must also have the intent.
2. Mens Rea
i)
Some courts say Purpose:
 State v. Gladstone
 Defendant told a cop where he could find
Marijuana.
 Case holds: no aiding and abetting, unless you want
the crime to succeed. Basically, you need purpose.
 Knowing was not enough. Why not? Knowing was
fine with the telephone answering service, but that
was a legal operation. This is illegal.
 Unless the defendant had a stake in the venture,
hen’s not an accomplice.
 Court probably trying to make sure they get the
right people.
ii)
Other courts say knowledge (and perhaps a little more):
 State v. Ellrich
 Woman wanted an abortion, a doctor declined to
perform it, but gave her a number and code to have
the procedure performed.
 He did have more of a guilty mind than Gladstone
(pre-arranged code).
 Preconcerted effort between defendant and
principal, although the defendant might be
indifferent about it.
3. MPC:
i)
2.06 (3), (4)
 Etzweiler
 Defendant loaned his car to his drunken friend. The
friend got into an accident and killed another
person. The friend was charged with negligent
homicide, manslaughter, and the prosecution
wanted to do the same to this defendant.
 If this is a crime of negligence, how can someone
aid another in committing the crime of negligence?
 No evidence that the defendant acted purposely or
knowingly as to the result of the crime.
 2.06 (3) needs purpose
 2.06 (4) result element—culpability the same as the
principal. Defendant had to only act with the same
culpability as Bailey with respect to the result
element—negligence.
 Defendant should be guilty so long as he meets the
conduct element culpability—purpose.

V.
The defendant purposely aided in the conduct
element—he purposely wanted the defendant to
drive.
 Dissent saying: majority didn’t look at the entire
statute. They should have also read section 4.
 A/L: nebulas in nature
 Had Bailey died, the defendant could be charged
with negligent homicide of all three. Why should it
be different if Bailey lives?
 Circumstance element: deliberate ambiguity. pg.
877. Purpose goes to conduct, but circumstance is
left to the courts to decide.
4. Primary and Secondary Liability:
i)
Unless there is a principal, a person cannot be an
accomplice.
 State v. Hayes
 Potential burglar plans a burglary, and asks a friend
to take part. The friend tells the police, and they set
up a trap. They arrive at the store, and the
defendant lifts the friend through the store window,
the friend takes a ham, and gives to the defendant.
 Principal: has the actus reus
 Accomplice: has the mens rea
 Defendant not guilty. Had he gone into the store, he
would have been guilty.
 Would have gone differently under the MPC
5. Conspiracy—Complicity Doctrine:
i)
Pinkerton
 Two brothers, involved in a conspiracy. One in jail,
other outside committing crime.
 U.S. wants to contribute the crimes to the brother in
jail.
 No evidence of aiding and abetting. Guilty, even
though in jail.
 Some think: liability going too far. Code shows—
you need to show actual A&B.
 Doctrine: still alive in fed. Courts.
 Attributing guilt because in the conspiracy, not
because he is an accomplice. Guilty of all offenses
in furtherance of the conspiracy.
 Defense: renounce the conspiracy and get out.
DEFENSES:
A. Classifying Defenses:
 Three categories of defenses according to Robinson (actually 5)
1. Failure of Proof



2. Justification
3. Excuse
Failure of Proof:
1. The government has failed to prove the elements it is
required to prove.
2. Supreme Court has said: government has the burden of
proving, beyond a reasonable doubt, every essential
element.
a. Example:
i. Homicide case: state proves that defendant
hated the victim, he intended to kill him, but
didn’t prove the defendant’s actus reus. The
defense could stand up, motion for a
directed verdict, and the court would grant
it.
3. It’s not really a defense, but rather the defense is stating
that the government hasn’t proven one of the essential
elements.
a. It’s really just attacking the offense
Justification
1. Affirmative defense (Yes, but…)
2. Necessity:
a. You committed the crime, but you have a good
reason for doing so.
b. Usually, not only did the defendant do something
wrong, he did something praiseworthy
c. Rather than convict the defendant, let’s give him a
medal.
3. The defendant has chosen the lesser of two evils:
a. Example
i. A fire is coming, and it will consume
Nebraska if the defendant doesn’t light the
field on fire. He committed arson for the
greater good.
4. Self-defense:
a. Usually, not always characterized as a justification
Excuse:
1. Affirmative Defense (Yes, but…)
2. Not as morally valid as justification
3. The defendant acts unlawfully, but because of special
circumstances, his conduct is excused:
a. The defendant kills a person because he believes
that the person is a snake or a tiger.
b. He will be excused for his actions, but the act was
still unlawful.
c. Example:
i. Two year old shoots someone.
B. Distinctions between Justifications and Excuses:
 Self-Defense:
1. Justification: no right to self-defense
a. Example
i. You have a knife at a woman’s throat, and
she pulls a gun out. You have no right to
protect yourself because her act is justified.
ii. Executor is about to drop the guillotine.
Right before, you kick him off the platform
to protect yourself. You had no right to selfdefense because his actions were justified
2. Excused Acts: right to self-defense
a. Example
i. A kid is about to shoot an adult—the adult
can shoot the kid. The kid’s acts were
excused, and so the adult will have a right to
self-defense
 Liability as accessory:
1. Justified Acts: no liability to accessory
2. Excused Acts: liability as accessory
a. Example:
i. A believes B is a tiger. C encourages A to
kill B. A is excused, but C is guilty as an
accessory.
C. Elements:
 Sometimes it is difficult to distinguish between offense elements
and everything else:
1. State v. Segovia
a. Defendant found guilty of illegal possession of a
narcotic. The state failed to disprove the
prescription portion of the crime.
b. Everyone who possesses a narcotic, except with a
prescription, is guilty
c. State supposed to negative the prescription element
d. State got out it this time—marijuana isn’t a
prescriptable drug.
e. No heavy burden on state to disprove this—just
look at the registry.
D. Element and Affirmative Defenses:
 Winship: supreme court has said that as a matter of due process,
state has the burden of proving each fact necessary to the crime.
 Where does the Burden of Proof lie?
1. Mullaney v. Wilbur
a. Defendant alleged that he was provoked by the
deceased because of a homosexual advance.
b. Defendant charged with murder. Maine murder
statute states:
i. Murder is killing with malice aforethought
ii. If no malice, but rather provocation, crime is
mitigated to manslaughter.
c. Where does the burden of proof on provocation lie?
d. At common law, burden of proof rested on the
defendant
i. State proves prima facie M, and defendant
has burden of proving provocation.
e. Court holds: State must negate the provocation.
i. Goes against Common Law
ii. State must disprove provocation by beyond
a reasonable doubt
1. Traditionally, defendant only need to
show by a preponderance of the
evidence
f. What if:
i. State charges defendant with murder. At
trial, state proves malice aforethought.
Defendant then says—I did it because the
man sexually assaulted me. What’s the
effect of raising this issue have to what the
state must show?
ii. State must prove each element of the crime.
Defendant raises issue of provocation. He is
raising a doubt about an essential element of
the crime—malice aforethought!
iii. Provocation—the opposite of malice
aforethought. It negates malice
aforethought.
iv. When defendant raises the issue, it casts
doubt on the element. The defendant has
shifted the burden. If state can’t negate it,
it’s manslaughter.
v. It’s a change in the traditional common law
approach. Once the defendant has cast
doubt on the element, the state must
disprove it by beyond a reasonable doubt.
2. Effect this case has:
a. Hypo:
i. State charges Jones with Murder. State
proves Jones intentionally killed Smith.
Jones motions for directed verdict—the state
hasn’t proven absence of provocation.
ii. Instinct: state only has to prove absence of
provocation beyond a reasonable doubt
when the defendant raises the issue.
iii. Footnote 28—nothing in the opinion
changes this requirement (many states
follow this).


Summary:
1. Constitutionally permissible to put the burden of
production on the defendant.
a. Burden of producing some evidence, a scintilla of
evidence
2. When the defendant has brought forth some evidence, the
burden of persuasion is on the state
a. The state must negate provocation.
3. Without these requirements:
a. State would have to anticipate and disprove every
possible defense
b. Often, these issues aren’t even at stake
4. State: makes out the elements of the crime, the defendant
raises a defense (burden of production), and then the
burden shifts back to the state.
a. The state doesn’t have to show the defendant was
provoked until the issue is raised.
How does Patterson change this?
1. Woman with a different man. The ex-husband kills her.
2. Guilty of 2nd degree murder
3. Issue: can the legislature make “Extreme Emotional
Disturbance” an affirmative defense, and put the burden of
persuasion on the defendant?
4. It sure can!
a. The affirmative defense has no direct relationship to
any element of murder
b. In Mullaney, provocation had the effect of negating
an element of the crime
c. In that case, the defense was calling into question an
issue of proof that the state had the burden of
proving—it was a failure of proof issue.
d. Does EED call into question any element of the
offense? Perhaps intentional. But, the defendant is
arguing, “Yes I intentionally killed him, but I was
mad.”
5. Since no elements are called into question, it is
constitutionally permissible to place the burden of
persuasion on the defendant.

a. EED is an excuse, it’s a defense. Keep this in mind.
The defense is not casting doubt on an essential
element of a crime.
6. How do we tell that a defense theory must be negated by a
state?
a. Whether or not the defense is a failure of proof or
an excuse.
i. If a FOP, state carries the burden. The state
must negate it.
ii. If excuse, etc., the state can place the burden
wherever it would like to put it.
7. Dissent:
a. This is merely a matter of semantics:
i. What if the statue read: intentionally caused
the death, except when EED?
ii. Depends simply on the legislative wording.
b. Mullaney only went so far as to issues affecting
procedural matters.
i. For Maine to avoid the result, they can write
the statue like NY did. It’s circumventing
the constitution.
c. Winship: speaks to the substantive law as much as
the procedures. Majority said that Winship only
goes to procedural matters.
Implications of Mullaney and Patterson:
1. Constitution requires proof of atleast one basic principle:
a. Actus Reus:
i. Robinson
2. What about the Mens Rea?
a. Can a state shift the burden to the defendant? Make
the mens rea a defense, and have the defendant
disprove it?
b. Court doesn’t say—but it would change centuries of
precedent.
3. I think that in some crimes, you can’t shift the essential
elements by making them defenses.
4. What if legislature said: Murder is causing death of another
person. In a separate section, the defense to murder is:
didn’t do it intentionally, knowingly, etc.
a. Would it be constitutional?
i. Dissenters in Patterson say no—
1. It affects substantive matters
2. Dissenters say: mens rea is always
part of the offense, and you can’t
shift it.
3. There are substantive matters that
cannot be tampered with.

VI.
One last hypo:
1. Self-Defense:
a. Statute says: whoever unlawfully kills a h.b. with
M/A, is guilty of M.
b. Defendant says, Yes, but…
c. Where is the burden of proof?
d. Does SD call into question an element of the
statute?
i. Yes—unlawfully. If actor was justified, he
did not act unlawfully.
ii. The state must therefore negate the SD
theory
e. What if statute says: whoever kills a h.b. with M/A
is guilty of M
i. Hard to see SD as a FOP theory
DEFENSE CATEGORIES:
A. Duress:
1. Elements:
a. A threat made
b. Of death or serious personal injury and
c. That threat must be a present immediate threat
2. Regina v. Hudson and Taylor:
a. Convicted of perjury. The two defendants didn’t
identify the assailant while under oath
b. Defense: duress
c. Problem with defense: threat must be present and
immediate
d. Threat was made in the past (although the thug was
in the court house) and there was no immediacy.
e. Didn’t get a duress instruction from the trial court
f. Was there a way out? Could have told the police.
3. Duress: excusing or justifying?
a. Is it true that a person really doesn’t have a choice?
i)
In Hudson and Taylor: they chose to subcum
to the threat, rather than to tell the police
ii)
Are they simply faced with a hard choice?
b. Excuse: conduct is wrong, but the person is not
responsible because:
i)
we understand the pressure of the moment
ii)
Duress: usually human forces
c. Classic example: gun to the head—“rob the bank or
I’ll kill you”
i)
Now is it an excuse theory? Or a
justification?
4.
5.
6.
7.
8.
9.
d. “Rob the Bank or I’ll kill your daughter.”
i)
Looks like justification—the lesser of two
evils
ii)
But: “You break the legs of A or I’ll break
your legs,” looks like excuse—we are
accommodating human frailty.
Little deterrent effect:
a. Punishment likely won’t deter a person from
committing a crime when a gun is at their head.
Burden of Proof:
a. Looks like an affirmative defense:
b. The defendant clearly commits the crime—has the
M/R and A/R for the crime.
c. State can therefore put the burden on whoever it
wants
Duress and Homocide:
a. Not available at common law
b. Most jurisdictions allow a duress defense.
Threat must be actual—not frivolous
Model Penal Code 2.09 (pg. 997):
a. (1) “A person of reasonable firmness…unable to
resist.”
b. No immediacy requirement
c. (2) no defense if actor recklessly put himself into
the situation
i)
Like being in a gang
ii)
negligence is also in there
Majority view:
a. Objective standard, rather than subjective standard
i)
subjective used in Hudson and Taylor
B. Necessity:
1. Dudley and Stephens
a. Out on a ship, and the two agree to kill the boy.
The three saved were married, and the boy had no
family
b. No one was happy about killing the boy
c. Picked up 4 days after the homicide
d. Defense—necessity
i)
Probably true
ii)
Jury agrees—all probably would have died
e. Defense: chose the lesser of two evils
i)
Saved three lives
f. Boy would have died anyways
g. Court rejected necessity defense: Why?
The defendants didn’t know if a boat would
come? Would it have been different had
they known no ship was to come until 5
days later and that the would have certainly
died had they not killed someone? Even
though the uncertainty is removed, they still
would probably have no defense
ii)
Judge is saying: never a right, never
acceptable to take the life of an innocent
person
Moral Tradition is brought out by the judge. Sometimes it is
necessary to sacrifice ourselves rather than to do what they did.
What happened to Dudley and Stevens?
 Found guilty of Murder, but pardoned after six months.
 Brings up the question—is this what a normal person would
do? There’s no deterrence theory working here. They won’t
commit the act again. They aren’t criminals
 Can we expect people to cling to higher ground?
The court here recognizes: if they give a defense here, it could
open the floodgates.
 Today: killing an abortion doctor—necessity? Saving lots of
lives? Slippery slope.
Traditionally, I think necessity was a justification (usually caused
by natural forces).
Excuse theory of necessity:
 Perka v. The Queen:
i. Bringing in drugs to Canada.
ii. Court doesn’t want to say it is right to bring drugs into
the country
iii. Under the circumstances, anyone would make this
choice. An accommodation to human nature
iv. The defendant did the wrong thing (bringing drugs to
Canada), but anyone would do this.
Prison Escape Context:
 Excuse v. Justification:
i. Mississippi case: Inmate was sexually assaulted by 4 or
5 inmates, and they tell him that they will do it again.
ii. Inmate tells warden, and warden gives three choices:
 Submit to the assault
 Defend yourself (frail guy)
 Escape, and receive even more punishment
iii. Inmate chooses to escape
iv. Inmate caught, argued necessity
 Court disagreed
 1970’s, however, court recognized the defense
i)
ii)
iii)
iv)
v)
vi)
vii)

Lovercamp: court recognized a necessity
defense—defendant chose the lesser of two
evils.
v. If this defense is seen as a necessity and therefore a
justification (a choice of the lesser of two evils):
 If the inmate escapes, assaults a guard who tries
to prevent his escape:
 The court would be saying that what the inmate
did was protected by the law, it was good, and
therefore he has a defense against the escape
and the assault
 The assault on the guard would be lawful and
the guard’s attempt to prevent the departure
would be an unlawful arrest.
 If an inmate assists the defendant in escaping,
he would be aiding a lawful act and would
therefore not be guilty. If an excuse, defendant
would not be guilty of the escape, but the inmate
would be guilty of the crime.
vi. Hard to see this case as duress—the assaulters want the
inmate to stay in prison, rather than to escape.
 But if seen as an excuse: the act of escaping is
excused, but is unlawful. The assault would
therefore also be unlawful and not excused.
vii. Justification again:
 Lawful, permitted, a right, not unlawful,
necessity
C. Self-Defense:
1. Justifiable v. Excused action
a. Why would it be justified?
i. A natural right to protect ourselves
 A principle of necessity: it must be an imminent
threat: if it’s not imminent, it’s not necessary
ii. “Most writers agree that actual self-defense is justified
because the defendant did the “right thing”
iii. At C/L, if justified—defendant does not have to retreat.
If the defendant is attacked, and he fight back.
b. Sometimes understood as an excuse theory:
i. Mistake:
 A toy knife is pulled out
 Reasonable to believe that life is threatened
 Unlawful harm, but we will excuse the harm if the
mistake was reasonable
ii. If excused, at C/L, the defendant must retreat and be
backed up against a wall.
2. No deterrence effect on self-defense:
a. punishment won’t deter someone who is threatened by a knife.
3. Common Law Requirements:
a. Threat had to be immediate, imminent, genuine
i. If deadly force used, it had to be imminent deadly force
b. Immediacy Element and Reasonableness element:
i. Use force proportionate to the suspected harm
c. Objective Standard at Common Law:
i. Would a reasonable person feel threatened under these
circumstances.
ii. Some courts are changing over to an “imperfect selfdefense”: the unreasonable but honest mistake: murder to
manslaughter.
d. “Self-defense is not available to a defendant who was the
original aggressor.” (pg. 1033)
i) “But that is true only as to the aggressor who uses deadly
force.” (pg. 1033)
 Example: A starts a fist fight with B. B pulls out a
gun. A can use deadly force to defend himself.
ii) Withdrawal: If A initially attacks B, and then stops, but
then B comes back and attacks A, B has no self-defense
argument:
 However, A must communicate that he has stopped.
e. Defense of others:
i) Most J’s have the “alter ego rule”
 A sees C attacking B. If B could use self-defense,
A is permitted to use self-defense.
4. Retreat requirement:
a. Alluded to earlier
b. Model Penal Code has a retreat requirement (see MPC pg. 10261027).
5. Case Study:
a. State v. Wanrow:
i) Child molester had caused some problems in the
neighborhood. His neighbor was scared, called the
police, but they told them that they don’t book people on
the weekends. The police further advised that if they do
try to stop the molester, make sure he was in the house
first.
ii) Four adults and Eight children in the house, stay up all
night, scared.
iii)5am, two guys leave the house, and they bring over the
neighbor. He’s drunk, and the two guys stay outside the
house. Looks possibly like a set-up.
iv) problem defendant had with self-defense at C/L:
 No evidence of victim using deadly force
v) the problem the state supreme court had was with the
SD instruction: the trial court only allowed the
Circumstances just prior to the death to be considered by
the jury. Jury didn’t get to hear the guy’s past history.
 This evidence goes to what she subjectively thought
or feared.
 Without this evidence, no chance of SD.
 The court went with the defendant’s subjective
thoughts—a break from the CL
vi)Problem with opening up subjective test for SD:
 Goetz case: he subjectively thought he was being
attacked by four black men.
 His fear was probably unreasonable.
 Allowing people like Goetz off the hook puts a lot
of people in danger (innocent victims).
 An objective standard avoids this problem, but it
might also convicted people who subjectively
thought they were in danger.
vii)This case: woman in a tough position:
 Police didn’t help. They could have prevented this.
 Fact of the case—doesn’t look like SD, but the
equities of the case—in the woman’s favor.
viii)Could have argued that this was merely a reflex (no
A/R)—
 State can argue: he was already there, or she put
herself in that situation.
b. State v. Norman
i) Battered Woman Case. Most controversial cases are
when the victims are sleeping or not hitting when the
crime takes place
ii) He did threaten her with deadly force—said he would
slit her throat, and when she tried to kill herself, the
paramedics had to contain him.
iii) Can the Battered Wife Syndrome help her case?
Systematic abuse such that the wife’s reality is
completely distorted
 Arguably, she had no way out.
iv) Court hung up on immediacy:
 If an acquittal on the grounds of a justified killing,
that could create a slippery slope.
 Could give some woman a license to kill. But, the
court should not be so concerned about this if the
court mandates that the woman must fit the battered
wife situation.
 Also: if justifiable: her actions are lawful. Could
she hire someone to kill her husband? Why should
she run the risk of losing her own life.

If we excuse her, saying that she acted reasonably
under the circumstances, yet her actions were
unlawful. Then what would happen if she tried to
kill her husband, but he woke up. He could use
self-defense against her. He has that right
6. Characteristics that can be used with a subjective SD test:
a. Physical Characteristics
i) Sex, size, handicap
ii)Usually allowed in if there is a subjective test
b. Mental Characteristics
i) The peculiar mental state
 What if she thinks that every red-head is out to
harm her. Every red-head will be in danger.
ii)Dangerous to give a defense to
c. Political, Cultural beliefs:
i) No defense. It would be dangerous to give such a
defense
7. Three real types of Self-Defense:
a. Justified defense:
i)
Classic Model
ii)
Defendant has actual belief that deadly force will
befall him, and it’s an actual threat
iii)
Acquittal, classic case of SD
b. Punitive SD:
i)
No actual danger, but reasonable belief that there is
danger
ii)
Mistake of the presence of danger
iii)
Acquit, but it’s an excuse
c. No actual danger and an unreasonable belief:
i)
Recognized in some jurisdictions as Imperfect SD
ii)
reduce crime of murder to manslaughter
iii)
Accommodate for the belief—defendant isn’t as
culpable
8. Model Penal Code 3.04, 3.09 (pg. 1026-1027):
a. 3.04(1): looks like: any belief will suffice. It doesn’t say
reasonable. Looks like a subjective test
b. 3.09 (2) says differently. If negligent or reckless in having the
belief. You can’t put yourself in a situation to make the belief
reasonable.
c. Example: if a person purposely encountered someone he knew
was dangerous.
d. Code creates an imperfect SD: If it was a homicide, it will be
reduced to manslaughter.
e. Code is saying: actual belief is a defense, but it must be
conditioned by 3.09
9. Who carries the burden of proof?
a. Does SD bring into question any element of the crime (FOP). If
yes, the state must negate it. It has the burden of persuasion.
i)
Some courts say it is a FOP. If M/R is seen as “evil
mind”, if killing in SD, the motive is to protect
one’s self from harm, not in any way an evil motive.
ii)
Other courts: If M/R is the intent to kill, or intent to
cause Grievous Bodily Harm, SD does not negate
this. SD is trying to kill the person.
iii)
Actual psychological state of mind (old way) v. 4
categories of intent: it’s all about how the court sees
it.
D. Mental Abnormality:
1. Incompetency to Stand Trial:
a. Less rigorous test than the McNaghten test
b. Basically: must have an understanding of the proceedings
against you (have the ability to stand trial).
2. C/L approach to insanity:
a. McNaghten Test (cognitive Impairment test)
i)
At the time of the crime (not at the time of trial)
ii)
Defendant was laboring under a defect of reason
because of a disease of the mind
iii)
Such that he doesn’t know the nature and quality of
his acts or the difference between right and wrong.
b. Focus on Cognitive impairment caused by a mental disease:
i)
Candidates for the test are those who have mental
diseases that affect the ability to know right from
wrong.
ii)
Adopts the medical notion of insanity—must have a
disease of the mind
c. Cultural/Economic deprivations—not enough
i)
Neither is emotional impairment:
1. Bipolar impairment—disease of the mind, but
doesn’t affect ability to know right from wrong
3. Irresistible Impulse Test:
a. Durham Rule
b. Very liberal test, but it has been abandoned
4. Cases:
a. Tempest
i)
Woman drowned her son in the tub
ii)
No remorse, filled the tub higher than normal,
apologized for killing him, she clearly knew what
she was doing.
iii)
She had terrific insecurity. Didn’t want to be
around people, go to school with her son (PTA
meetings, etc.)
iv)
She knew she was killing her son, and she knew
right from wrong. She was cognate, lucid, knew
what was going on.
v)
Court held strictly to the McNaghten rule.
vi)
She’s just terribly depressed. Emotional problems
vii)
Mental illness—acute depression, but didn’t affect
her ability to know things.
viii) Should she have a defense? She had no remorse—
she must have some kind of problem. The mental
problems are not her fault. She is the victim of an
illness.
ix)
McNaghten, as this case shows, is very narrow.
x)
The issue here: Should emotional impairment
supplement cognitive impairment in determining
insanity. Court said no.
xi)
If we allow depression as a defense, it could be a
slippery slope. Depression—how far do you go?
xii)
This result is reached in many jurisdictions. The
defendant’s mental illness does not fit the necessary
Insanity defense.
b. U.S. v. Pollard:
i)
Repeat Bank robber
ii)
Wife and son had been killed. He felt responsible
for it
iii)
Defense insanity—more specifically: irresistible
impulses.
iv)
Psychiatrist testified that the defendant couldn’t
help himself from committing these crimes—he was
controlled by his subconscious desires.
v)
He has a mental abnormality, disease of the mind,
but it does not affect cognition—he never wanted to
get caught (he didn’t rob one bank because there
were too many windows).
vi)
He had irresistible impulses—just like sex
offenders, arsonist, and other criminals. We don’t
give them a break
vii)
Also: if we permit inquiry into subconscious
motivations, actions—it opens a huge can of
worms. Everyone has subconscious motives, and
some say we all are driven by these desires. If this
is true, it undermines the criminal law. We would
not be responsible for anything we do. The criminal
law is based on free will, choices, and since we
can’t control what we choose, we wouldn’t be
punishable. Criminal law says: people are
responsible for their crimes, conduct. Holding this
way would reject responsibility as a principle.
viii) There were times when the impulses were
resistable.
5. Public View of Insanity:
a. Very rare is the defense even raised:
i)
Even more rare is when the defendant wins
b. Insanity—very controversial:
i)
Public think that the person is getting away with
something.
ii)
The defense is almost always well publicized
iii)
Insane people always commit the crime—the
question is—should we hold them responsible.
6. Burden of Persuasion:
a. Insanity—typically, an affirmative defense:
i)
Most often, the insane person intends to commit the
crime, but because of the mental illness, the law
will not hold him responsible.
ii)
Hinckley case: the defendant intended to kill the
president. Insanity just explains why he tried to
kill.
iii)
Insanity is an excuse.
b. Could be considered a Failure of Proof:
i)
Strangling someone, but the insane thought he was
squeezing a Lemon.
ii)
Morse saw one case: Burglary. The man thought
he lived in the apartment. He couldn’t formulate
specific intent for burglary.
c. Often—Courts don’t distinguish between FOP and excuse:
i)
Usually just treat it as an affirmative defense
ii)
If a FOP, and the state can’t prove the M/R, the
defendant is free to go. If Not Guilty By Reason Of
Insanity—the defendant goes to an institution.
7. MPC 4.01 (App. 37):
a. (1) has two prongs
i)
Cognitive Impairment: defendant doesn’t
understand what he is doing. A bit broader than
McNaghten (“substantial”)
ii)
Volitional Impairment: unable to conform his
conduct to the law (like Pollard)
b. (2) won’t let off psychopaths (repeat criminals) or anti-social
conduct.
c. From Tempest, the defense attorney could try and argue that the
defendant did not “appreciate” the criminality what she did.
8. Why have insanity defense?
a. Protect society from dangerous people
b. If found insane, they have to be in a mental institution.