Criminal Law – McAdams – Winter-Spring 2009
PART ONE: THE CRIMINAL JUSTICE SYSTEM AND INTRODUCTORY BEARINGS
1) JUSTIFICATIONS FOR PUNISHMENT:
a. SPECIFIC PREVENTION – Preventing the offender from committing future crimes.
i. “Specific” Deterrence – imposing punishment upon the offender may cause her
to fear the penalty for future crimes and thus deter her from committing them.
ii. Incapacitation – Restraints on offenders liberty, thus making it impossisble for
her to engage in criminal behavior during period of restraint.
iii. Treatment – Enables authorities to treat and perhaps rehabilitate the offender.
b. GENERAL PREVENTION – Penalizing offenders may also prevent the commission of
crimes by others.
i. “General Deterrence” - Punishing offender can have a “general deterrent”
effect by indirectly warning others to anticipate similar punishment should they
violate the criminal law.
ii. “Moralizing” Effect – Convincing others that violation of criminal statutes is
morally wrong.
1. Quite apart from fear of punishment, such persons might abstain from
criminal conduct because of their unwillingness to engage in morally
reprehensible behavior.
iii. “Social Solidarity” Effect – Some suggest that social order requires a
widespread consensus that criminal behavior is wrong and that subjecting
offenders to punishment will maintain that consensus.
1. Otherwise, people will regard themselves as free to violate other
criminal laws.
iv. Channeling Resentment – If the legal system doesn’t punish criminal offenders,
then the people will take the law into their own hands.
c. RETRIBUTION
i. Punishing an offender is justified simply because she has committed a wrongful
act!
2) LEGALITY – The Process of Defining Crime
a. Nulla poena sine lege – No punishment without law.
b. There must be a statutory basis for criminal punishment – Criminal laws flow from the
legislature, not the common law.
i. Statutory interpretation is used to determine LEGISLATURE’S INTENT!
ii. Use your canons of construction, Evan!
1. Expressio Unious
2. “Dog that didn’t Bark”
3. Legislative History
4. Plain Language (shut it, Scalia).
5. In the absence of a mens rea term, it tends not to mean that there was
a MR intended.
a. EXCEPT – Public Welfare Offenses  might be STRICT LIABILITY!
c. DUE PROCESS PROHIBITION AGAINST VAGUENESS:
i. General Rule: The Due Process Clauses prohibit enforcement of statutes
defining crimes if those statutes are impermissibly vague.
1. RATIONALE: Due Process serves to assure that persons can tell, by
examing statutes, whether the conduct anticipated will be criminal; thus
is assures notice.
Page 1 of 43
Criminal Law – McAdams – Winter-Spring 2009
a. ALSO – DISCOURAGES ARBITRAY ENFORCEMENT BY
DISCRIMINATORY POLIC EOFFICERS!
ii. CRITERIA FOR EVALUATING –
1. Unconstitutionally vague if:
2. it fails to define the offense with sufficient definiteness
3. So that ordinary people can understand what conduct is prohibited.
a. Lanzetta v. NJ – Statute’s meaning of “gang” is so unclear that it
is virtually impossible to determine in advance whether a
contemplated course of conduct is forbidden by law.
4. OR
5. So as to discourage arbitrary and discriminatory application.
a. City of Chicago v. Morales – Definition of loitering is so
imprecise that it gives cops absolute discretion to determine
what activities constitute loitering and thus can serve as the
basis for an order and prosecution.
i. Fails to provide constitutionally required minimal
guidelines to govern law enforcement 
Unconstitutionally vague!
iii. Evaluated AS APPLIED.
1. A D can challenge only whether a criminal statute is vague as applied to
the facts of his case!
2. Defendant must show that the statute failed to give him notice that the
conduct for which he was being prosecuted was prohibited!
3. EXCEPTIONS:
a. If a statute covers a considerable amount of constitutionally
protected conduct, such as speech, it can be evaluated “on its
face.”
b. When a statute infringes on constitutionally protected rights
and its tendency to encourage arbitrary application by police
“permeates its text” a D can attack on face.
i. City of Chicago v. Morales – Statute infringes on right of
freedom of movement and its vagueness permeates the
text.
THE GENERAL ELEMENTS OF CRIME
ACTUS REAS:
1) RATIONALE:
a. No legitimate function is served by subjecting persons to crimal liability solely for
harboring evil intent.
b. Notice function – defines precisely what it is that the law proscribes.
2) AFFIRMATIVE ACTS:
a. ELEMENTS:
b. Movement
i. Ordinarily, the “act” is a physical movement of D’s body, such as pulling trigger
of gun or stabbing with knife.
c. ACT MUST BE VOLITIONAL:
i. The physical movement constituting the act must be conscious and volitional.
Page 2 of 43
Criminal Law – McAdams – Winter-Spring 2009
ii. NOT – reflexes, convulsions, movements during sleep and conduct during
hypnosis or resulting from hypnosis.
1. Martin v. State – D not convicted for “appearing drunk in public”
because he was dragged out there by a police officer.
2. MPC 2.01(2)(a)-(D).
iii. UNCONSCIOUSNESS: MPC §2.01(2)(b)  Criminal liability cannot ordinarily be
based on movements made while defendant was unconscious.
1. People v. Newton – During struggle with police officer, D was shot in the
stomach, went unconscious and during the ensuing struggle, officer’s
gun went off killing the officer.
a. “Unconsciousness provides a complete defense to crimes such
as homicide.”
2. EXCEPTION – A state of unconsciousness will NOT preclude a finding of
criminal liability where D was at fault in causing his unconsciousness.
a. Watkins v. People -- Where guy starts a fight, gets knocked
unconscious and then kills his opponent, since at fault ins
tarting the fight, he has commited an “act” for purposes of
criminal homicide.
b. POLICY  should this limit liability to the initial crime (starting
the fight, here)?
3. EXCEPTION – Liability when actor engages in a course of conduct
knowing he will or might become unconscious and do harm.
a. People v. DEcina – During seizure, epileptic runs over guy. By
placing himself in position where his anticipated
unconsciousness would cause harm, D may be held criminally
responsible.
b. RATIONALE – Liability imposed for earlier act committed while
fully conscious. RECKLESSNESS AND NEGLIGENCE!
iv. EXCEPTION – MPC 2.01(2)(d) – Habitual acts are not considered involuntary.
3) ACTS OF OMISSION:
a. ELEMENTS:
b. DEFENDANT WAS UNDER A LEGAL DUTY TO ACT
i. Jones v. United States – “A finding of legal duty is the critical element of the
crime charged and failure to instruct the jury concerning it was plain error.
ii. RATIONALE – Based on need to establish reasonable and discernible limits for
omissions, where person would have sufficient advance notice of when person
would have to act to avoid liability.
iii. TYPES OF LEGAL DUTIES:
1. Duties based on relationship between parties (in common law):
a. Parents have a duty to prevent harm to children.
b. Husband has a duty to prevent harm to wife.
i. State v. Smith – Violation of husband’s duty to provide
shelter and clothing for insane wife.
c. De Facto Family Members – Some courts find duty, others do
not.
i. People v. Bearsley – Man not liable for failing to get help
when mistress OD’d on morphine in his house.
Page 3 of 43
Criminal Law – McAdams – Winter-Spring 2009
ii. State v. Miranda – Live-in-boyfriend liable when
girlfriend beats her child to death.
2. Statutory duties.
a. Some duties based on relationships are embodied in statutes.
b. LIMITATION – Due process requires that criminal statutes be
sufficiently specific and precise so as to give fair warning of the
required conduct.
i. Pope v. State – Woman takes in mother and child, and
mother kills child after lengthy abuse. Court interprets
statute requiring duty for one “responsible for child”
narrowly so Pope avoids liability.
c. EXAMPLE  Good Samaritan Laws!
3. Voluntarily Undertaking Risk:
a. Has a duty to use reasonable care in so doing.
b. Once begin act, cannot abandon one’s efforts when that would
leave imperiled party in a worse condition.
4. Creation of Peril:
a. One who wrongfully places another in a position of danger has a
duty to aid that person.
b. Failure to aid = criminal liability.
c. DEFENDANT HAD THE NECESSARY KNOWLEDGE
i. Defendant can only be found liable when she has knowledge of the FACTS
creating the duty.
1. EX: Hit and run driver must be aware that there was an actual accident.
ii. SOME COURTS find there must be knowledge of the law requiring duty.
d. IT WOULD HAVE BEEN POSSIBLE FOR DEFENDANT TO ACT
i. IT must have been possible for actor to perform what she failed to do.
ii. Mere inconvenience will not excuse a failure to perform.
MENS REA:
1) EACH ELEMENT OF A CRIME (UNLESS IT IS STRICT LIABILITY) REQUIRES A MENS REA!
2) COMMON LAW MENS REA:
a. Mens Rea Requirement for carious crimes traditionally falls into one of four categories.
b. GENERAL INTENT:
i. State of mind required is intent to commit the act constituting the crime.
ii. D need not have intended to violate the law, nor need he be aware that law
made act criminal.
iii. One who has voluntarily done an act is PRESUMED to have intended that act.
iv. LIMITATION – Some crimes require that D have had “knowledge” of certain facts
which prosecution must prove to establish the crime.
c. SPECIFIC INTENT:
i. In addition to general intent, these crimes require intent to do some further act
or cause some additional consequences beyond that which must have been
committed or caused in order to complete the crime.
ii. SO THIS IS NEEDED IN ADDITION TO GENERAL INTENT!
iii. Specific proof is required, but may be circumstantial.
d. CRIMINAL NEGLIGENCE:
Page 4 of 43
Criminal Law – McAdams – Winter-Spring 2009
i. Must involve a higher probability of harm and a greater degree of
unreasonableness than is necessary for imposing civil liability.
i. State v. Hazelwood – Exxon Valdez disaster. Negligence is sufficient when
criminal penalties are imposed on something society can reasonably expect to
deter.
e. MALICE:
i. The commission of a volitional act without legal excuse of justification.
ii. Regina v. Cunningham – “The word ‘maliciously’ in a statutory crime postulates
foresight of consequence.”
f. REQUIRED FOR ALL – FORESEEABILITY OF PROBABLE RESULT OF ACTION:
i. Criminal liability usually only attaches where D is shown to have contemplated
the actual harm that could have resulted from his conduct.
ii. Reginav. Faulkner – Man stealing rum lights a match and burns ship down.
Conviction overturned because no proof that he knew that lighting the match
would result in the fire on the ship.
iii. Regina v. Cunningham – For malicious act, it must be seen that he foresaw
injury that might have resulted from removing gas meter.
COMMON LAW MR REQUIREMENTS:
SPECIFIC
INTENT
GENERAL
INTENT
CRIMINAL
NEGLIGENCE
MALICE
STRICT
LIABILITY
Solicitation
Conspiracy
Rape
Mayhem
Involuntary
manslaughter
Battery
CL murder
Arson
Statutory
Rape
Bigamy
Attempt
False
imprisonment
1st Degree
premeditated
murder
Assault
(attempted
battery)
Burglary
Larceny,
Robbery
3) MPC MENS REA:
a. CATEGORIES:
i. Purpose - §2.02(2)(a)
1. “With desire”
2. Conscious desire to engage in certain conduct or cause a certain result.
3. Acts purposefully with regard to attendant circumstances if actor hopes,
believes or is aware that they exist.
ii. Knowledge - §2.02(2)(b)
Page 5 of 43
Criminal Law – McAdams – Winter-Spring 2009
1. “Awareness of a certainty.”
2. Actor is aware that it is “practically certain” that her conduct will cause
the result.
3. ALSO – knowledge of attendant circumstances shown if D knew that
say, stolen car he is buying is stolen.
a. EXCEPTION – “Willful Blindness”
i. Knowledge is not a defense when the defendant has
gone out of his way deliberately not to know the truth.
ii. US v. Jewell – Deliberate ignorance is equally culpable
to positive knowledge and prosecutors must prove that
Defendant did not know of the existence of drugs in the
car was due solely to a PURPOSE to avoid learning the
truth.
iii. MPC §2.02(7) – Knowledge of attendant circumstances
is established if “a person is aware of a high probability
of…[the attendant circumstance’s] existence, unless he
actually believes that it does not exist.”
iii. Recklessness - §2.02(2)(c)
1. “Awareness of high risk.”
2. Actor is aware of a substantial and unjustifiable risk that a certain
result will occur because of conduct or that a certain circumstance
exists.
3. MPC 2.02(2)(c) – Risk must be such that the actor’s conduct “involves a
gross deviation from the standard of conduct that law-abiding person
would observe.”
iv. Negligence - §2.02(2)(d)
1. “Existence of high risk.”
2. Actor should have been aware of a substantial and unjustifiable risk that
a certain result would occur or that a certain circumstance would exist.
3. A reasonable person would have foreseen the risk!
b. INTERPRETIVE RULES:
i. MPC §2.02(3) – If you don’t see one of the four mens rea terms in a MPC
provision, then you can establish the element if purpose, knowledge or
recklessness is found.
1. Recklessness is ordinarily the bare minimum unless otherwise noted.
2. EXCEPTION - MPC §2.02(4) – If negligence is stated and other terms are
not applied to any of the individual material elements of the crime, then
a minimum of negligence must be shown for all of the material
elements.
ii. CARRY-OVER RULE:
1. If one mens rea term is used in regards to a material act of a crime, then
that mens rea term is the base minimum for every other material act
required for that crime.
a. So if knowledge is specified for material element A, then
knowledge is required for all other material elements unless
specified otherwise.
4) STRICT LIABILITY:
a. TYPES:
Page 6 of 43
Criminal Law – McAdams – Winter-Spring 2009
i. COMPLETE STRICT LIABILITY:
1. Requires no mens rea whatsoever.
2. United State v. Balint  Despite not knowing they were selling opium
products, they were convicted of narcotics trafficking because
legislative intent was that sellers sell at their own peril.
ii. LIMITED STRICT LIABILITY:
1. Include no requirement of awareness with regard to ONE OR MORE
IMPORTANT ASPECTS of the offense, although some mens rea must be
proved.
b. IDENTIFYING STRICT LIABILITY CRIMES – LEGISLATIVE INTENT:
i. Whether a crime imposes strict liability turns initially upon legislature’s intent,
so court’s must analyze that through various means:
ii. Burden of Establishing Strict Liability:
1. Strict liability is disfavored and thus one arguing for strict liability has
the burden of establishing that the legislature intended to impose this
kind of liability. Staples v. United States.
iii. FACTORS SUGGESTING STRICT LIABILITY:
1. If most persons charged under the statute would in fact have the mens
rea that might otherwise be required, this will encourage a court to find
that MR need not be proven in each particular case. Morissette v. US.
2. Crime is a “new” statutory offense rather than traditional common law
offense.
3. It does not involve a direct and positive infringement on the rights of
other persons.
4. Part of broad regulatory scheme.
5. Imposes a relatively light punishment on conviction.
6. Requiring proof of MR would impede implementation of legislative
process.
7. Public Welfare laws are generally strict liability.
iv. FACTORS SUGGESTING NO SL:
1. Crime resembles traditional common law crime.
2. Severe penalty is imposed on conviction – Morisette.
3. Imposing strict liability would create a serious risk of convicting entirely
“innocent” persons – people neither aware nor alerted to the possibility
that their conduct is criminal.
a. Staples v. US  not SL because dispensing awareness that a D
know the nature of a weapon would create a significant risk
that innocent gun owners would incur criminal liability.
v. Constitutional consideration s- would imposing SL be constitutional or not?
1. State v. Guminga – Found that SL, vicarious liability statute violated due
process.
vi. “Regulatory” or “Public Welfare” Offenses
1. Courts often construe crimes that are part of regulatory schemes
when they are designed to further the general welfare as imposing SL.
2. If they regulate items that are potentially harmful or injurious.
c. POLICY CONSIDERATIONS:
i. FOR SL:
1. Aids prosecution go faster!
Page 7 of 43
Criminal Law – McAdams – Winter-Spring 2009
2. Provides deterrence!
3. Efficiency -> speeds up litigation.
ii. AGAINST:
1. Opens the door for convictions based on ignorance, thereby ignoring
culpability.
2. Not much excessive litigation without SL.
d. MPC - §2.02(1) – No conviction may be obtained unless prosecution proves some form
of culpability regarding each material element of an offense.
i. EXCEPTION - §2.05 – Voluntary act and MR requirements do not apply to
offenses graded as “violations,” rather than “crimes.”  Violations are offenses
that cannot result in imprisonment or probation but may result in fines.
5) CAUSATION:
a. Must be “but for’ (factual) and proximate:
b. Factual Causation:
i. Substantial Factor Requirement  sometimes D’s act be a “substantial factor”
in bringing about result.
ii. Speeding up Result  Causation present even though D’s acts simply speeded
up result.
1. Guy lies on the floor dying from being shot by X. D comes up and stabs
him to death. D’s act is the factual cause of death because BUT FOR D’s
act, he would not have died when and where and as he did.  People v.
Ah Fat.
c. Proximate Causation:
i. RULE: All natural and probable consequences of D’s act, sans intervening
factors.
1. People v. Geiger  D strikes guy, knowing that he might die from the
blow. Blow knocks him unconscious, but he vomits and chokes on it.
Since that was a “natural and probable consequence of D’s action”, D’s
conduct (the blow) was proximate cause.
ii. SUPERSEDING FACTORS:
1. ELEMENTS:
2. Intervening
a. An act set in motion AFTER d’s act!
b. Not a pre-existing condition.
3. Unforeseeable
a. Not foreseen by D at time of act.
4. SOLE MAJOR CAUSE OF DEAHT
a. Not if it simply combines with the effects of D’s conduct!
5. “INDEPENDENT” OF D’S ACTION
a. Must be independent of D’s original action!
PART TWO: SPECIFIC CRIMES:
HOMICIDE:
1) INTENTIONAL KILLINGS – MURDER:
a. MURDER DEFINED: At common law, murder is the unlawful killing of another human
being with malice aforethought.
Page 8 of 43
Criminal Law – McAdams – Winter-Spring 2009
b. AR  Causing the death of another human being.
i. Factual Cause – “but for” defendants action, death would not have resulted.
1. People v. Acosta – But for Acosta’s fleeing the police, the helicopters
would never have been in position for the crash.
ii. Proximate Cause – Foreseeable harm.
1. People v. Arzon – “it is not necessary that the ultimate harm be
intended by the actor. It will suffice if it can be said beyond a
reasonable doubt…that the ultimate harm is something which should
have been foreseen as being reasonably related to the acts of the
accused.”
2. JUST AS IN TORT LAW, THERE CAN BE SUPERCEDING CAUSE!
c. MR  MALICE AFORETHOUGHT: Term of art that encompasses several different mental
states.
i. INTENT TO KILL:
1. If the D intended to cause the victim’s death.
2. “Deadly weapon” Doctrine  One who intentionally uses a deadly
weapon on another human being and thereby kills him is presumed to
have intended the killing (not mandatory presumption but a
permissive inference).
ii. INTENT TO INFLICT GREAT BODILY HARM:
1. Even though she did not consciously desire to cause victim’s death, but
did in fact cause death, if there was intent to inflict great bodily harm,
then malice aforethought.
2. People v. Geiger – H dealt W several blows, causing her to strike her
head on the ground. With that mens rea, he caused her death and is
guilty of murder.
iii. INTENT TO COMMIT A FELONY
1. (see felony murder rule)
iv. INTENT TO RESIST LAWFUL ARREST
v. AWARENESS OF A HIGH RISK OF DEATH – “depraved heart” “abandoned and
malignant heart.”
1. If a D acts in the face of an unusually high risk that her conduct will
cause death or serious bodily injury.
2. Such a great risk that ignoring it demonstrates a “depraved heart.”
3. Commonwealth v. Malone  D killed V while playing a game of Russian
roulette, where D put one bullet in and put it against V’s head, and then
pulled the trigger. Regardless of whether he intended to kill his victim,
he acted with the awareness that her conduct created an extremely
high risk of death.
4. US v. Fleming – “The difference between malice, which will support
conviction for murder and gross negligence…is one of degree rather
than kind...In addition to being intoxicated while driving, defendant
drove in a manner that could be taken to indicate depraved disregard of
human life.
5. ELEMENTS:
a. Awareness of Risk  Most courts require a subjective
realization of the risk.
Page 9 of 43
Criminal Law – McAdams – Winter-Spring 2009
i. WHY? Theory that anything less is too far removed
from intent-to-kill murder to treat the two situations
alike.
ii. Difference between reckless and negligent killings 
this requires MORE from D.
6. LIMITATION – Some jurisdictions limit this sort of murder to those
situations in which the D has created a high risk of death to several or
many people.
7. MPC §210.2(1)(b) – Murder requires proof that d acted “recklessly
under circumstances manifesting extreme indifference to the value of
human life.”
d. MPC View of Murder- §210.2(1)
i. ELEMENTS:
1. Killing
2. Commited either
a. Purposely
b. Knowingly
c. Recklessly
3. Under circumstances manifesting extreme indifference to the value of
human life.
e. DEGREES OF MURDER:
i. FIRST DEGREE MURDER  No common law equivalent, entirely a creation by
statute.
1. PREMEDITATED KILLINGS:
a. Where intent to kill is formed with some reflection deliberation,
reasoning or weighing.
b. PROOF OF OPPORTUNITY  Where evidence shows that
defendant had sufficient time to provide an opportunity to
premeditate.
i. No appreciable time needed!
1. Formulation of intent to kill by premeditation
and the defendant’s final decision to act upon
this intent can occur as instantaneously as
successive thoughts.
2. Commonwealth v. Carroll – “No time is too
short for a wicked man to frame in his mind the
scheme of murder.”
c. HOWEVER – some jurisdictions require PROOF OF ACTUAL DUE
CONSIDERATION
i. Some courts require direct proof that D did in fact give
the question whether to kill reasonably calm
consideration.
1. Evidence can be planning activity, proof of
preexisting motive.
2. State v. Guthrie – “There must be some
evidence that the defendant considered and
weighed his decision to kill in order for the
State to establish premeditation and
Page 10 of 43
Criminal Law – McAdams – Winter-Spring 2009
deliberation under our first-degree murder
statute.”
2. KILLING DURING ENUMERATED FELONIES
a. (see felont murder rule)
3. KILLING BY POISON, BOMB, LYING IN WAIT.
a. These are sometimes specifically made first degree murder.
b. It not statutorily mandated, these types of killings may be
regarded as highly probative of premeditation.
ii. SECOND DEGREE MURDER:
1. All killings committed with malice aforethought that are not specifically
made first degree murder.
2) FELONY MURDER RULE:
a. RULE: A killing – even an accidental one – will be murder if it was caused with the intent
to commit a felony. Any killing committed during the course of a felony is murder.
b. MPC – Largely uneffective and unadopted by states  Replaces the rule with the
creation of a rebuttable presumption of murder if death occurs during the course of a
felony.
c. RATIONALE:
i. Rule is believed to deter felonies by adding to the threat of conviction and
punishment for the felony the additional threat of conviction and punishment
for murder if death is caused.
ii. Meant to discourage the use of violence during the commission of felonies by
imposing the threat of additional punishment if felon causes death.
d. CO-Felons  All co-felons are liable for any deaths committed by any other.
i. WHY? Application of the co-conspirator rule making all conspirators guilty of
foreseeable crimes of their co-conspirators committed in furtherance of the
conspiracy.
ii. ALSO – If the party killed is one of the participants in the predicate felony, then
felony murder rule applies for all other co-felons.
e. LIMITATIONS:
i. Death of another must be foreseeable – Some, but not all jurisdictions:
1. Some courts require that the death of another have been foreseeable
result of the felony.
a. People v. Serne – Limits FMR to felonies that consist of “any act
known to be dangerous to life and likely in itself to cause
death.”
2. REMEMBER – NOT ALL JURISDICTION
a. People v. Stamp – “The doctrine is not limited to those deaths
which are foreseeable.”
ii. Felony Must Be Dangerous – Some jurisdictions
1. Some courts limit the FMR to underlying felonies of a “dangerous
nature.”
2. TWO APPROACHES:
a. Felony Must be Inherently Dangerous
i. A few jurisdictions demand that the felony always
dangerous to human life when evaluated in the abstract
rather than the facts of any particular case.
Page 11 of 43
Criminal Law – McAdams – Winter-Spring 2009
1. People v. Phillips-“It is the element of felony in
the abstract, not as committed, that determine
its inherent dangerousness.”
b. Felony Need Only be Dangerous As Committed
i. MOST COURTS
ii. TEST: Examine the facts of particular cases and the
circumstances under which the felony was committed
and apply the FMR only if the felony as committed on
the facts of the case involved a special or significant risk
to human life.
1. People v. Stewart – “A felony is inherently
dangerous in the manner and the circumstances
in which it was committed.”
iii. The Merger Rule – felony must be “independent.”
1. Most courts hold that the FMR can be applied only where the predicate
felony is somewhat independent of the killing.
a. People v. Ireland - If predicate felony is the assault or battery by
which the victim’s death is caused, felony “merges” into the
killing and thus does not retain sufficient independence to be a
predicate felony.
2. TEST: Does death result from a single purpose and a single course of
conduct? – People v. Burton.
3. RATIONALE  Since most murders require a form of assault or battery,
expanding FMR in such a way would expand the rule to cover far more
situations than intended by legislature.
4. PROBLEM – Determining when felonies are “independent.”
a. Some courts say that a felony is independent and does not
merge only if it involves an intention COLLATERAL to and
INDEPENDENT of the physical attack on the victim.
b. Others apply a more flexible test and ask whether permitting
the felony to be used as a predicate felony would expand it as
to frustrate legislature’s intent to provide for a meaningfully
limited FMR.
iv. One of the felons must “directly” cause the death.
1. Agency Analysis - Many courts reason that felony murder applies only
when the death is caused by the defendant or the defendant’s “agent.”
a. State v. Canola – No FMR liability where the owner of a jewelry
store shot and killed one of the felons.
b. Since neither victim of felony nor interveneing police officers
are in any sense agents of the felons, death caused by them is
not FM.
2. EXCEPTION – Some courts only require that a death occurred.
a. These courts often impose no FMR when the death is that of a
co-felon.
v. Death must be Caused in Perpetration of Felony
1. ALL COURTS agree that the killing must be caused in the perpetration of
the felony.
Page 12 of 43
Criminal Law – McAdams – Winter-Spring 2009
2. Acting cause of death was part of the felony, and did not occur after
felony was completed.
3. DURATE OF FELONY  Sometimes, FMR stops once felony is
immediately ended while most courts fid a killing is a felony murder if it
is caused during the commission of the felony or in immediate flight
from the crime.
a. Immediate flight  Ends when perps have reached a position of
“temporary safety.”
3) PROVOCATION = VOLUNTARY MANSLAUGHTER:
a. A killing that would otherwise be murder but was committed IN RESPONSE TO A
CERTAIN PROVOCATION.
b. D must have had malice aforethought, but the provocation downgrades the offense
from murder to voluntary manslaughter.
c. ROLE OF COURTS AND JUSTY:
i. Maher v. People – The judge is to decide what in law is a reasonable or
adequate provocation, but it is a question for the jury as to whether the facts
actually show reasonable provocation.
d. ELEMENTS:
i. REASONABLE PROVOCATION
1. OBJECTIVE  There must have been provocation of the kind that would
cause a reasonable person to lose control and act rashly and without
reflection.
2. Girouard v. State  “The standard is one of reasonableness; it does not
and should not focus on the peculiar frailties of mind of the Petitioner.”
3. MPC - §210.3(1)(b)  Reasonableness determined from the viewpoint
of a person in the defendant’s position under the circumstances as the
D believed them to be.
a. This allows court to take into account some of the D’s special
characteristics.
4. PARTICULAR SITUATIONS
a. Words Alone = Not reasonable.
i. Giruard v. State – Wife’s hurtful words were not
reasonable provocation to kill her.
b. Battery = minor blows not reasonable, violent and painful blow
can be reasonable.
c. Adultery  Discovery of one’s spouse in the act is clearly
sufficient for jury to find provocation.
i. Some court’s find it reasonable even when they are not
caught in the act.
5. Mistake?  As long as D reasonably believed that a situation
constituting provocation existed, this should go to jury.
ii. ACTUAL PROVOCATION
1. The defendant must have IN FACT BEEN provoked, and the provocation
must have CAUSED the defendant to kill the victim.
iii. ABSENCE OF A REASONABLE COOLING PERIOD
1. Interval between the provocation and the killing must not have been
long enough for the passions of a reasonable person to cool.
Page 13 of 43
Criminal Law – McAdams – Winter-Spring 2009
2. Majority Rule – Objective Test - No mitigation if the elapsed time was
sufficient to enable the passions of a reasonable person to cool.
3. Minority Rule – Subjective Test – As long as D himself was still enraged
at the time of the killing, then it was fine.
iv. NO ACTUAL COOLING OFF
1. The defendant must not have actually cooled off during the interval
between provocation and killing.
e. MPC §210.3(1)(b) – “Extreme Emotional Disturbance”
i. A killing that would otherwise be murder committed “under the influence of
extreme mental or emotional disturbance for which there is reasonable
explanation or excuse.
ii. ELEMENTS (People v. Casassa – suitor upset over girl’s rejection and stabs her):
1. The particular defendant must have “acted under the influence of
extreme emotional disturbance
a. SUBJECTIVE IN NATURE!
b. Casassa - “Threshold question which must be answered in the
affirmative before any test of reasonableness is required.”
2. There must have been a “reasonable explanation or excuse” for such
extreme emotional disturbance.
a. OBJECTIVE STANDARD  “from the viewpoint of a person in the
actor’s situation under the circumstances as he believes them to
be.”
b. Cassasa – “Found that the excuse offered by D was so peculiar
to him that it was unworthy of mitigation.”  No
reasonableness!
iii. NOTE – Anger embarrassment not enough.
1. A mere showing that the D was made angry or embarrassed by the
victim’s provoking conduct will not be sufficient.
4) UNINTENTIONAL KILLINGS – INVOLUNTARY MANSLAUGHTER
a. ELEMENTS:
i. Killing by Criminal Negligence
1. Commission of any act – even a lawful one – in a criminally negligent
manner.
2. MORE THAN “CIVIL” NEGLIGENCE REQUIRED  Unclear precisely what
is required for criminal negligence, it must be more than what is
necessary to establish civil liability.
a. The situation must have been one in which there was both a
high and unreasonable risk of death of another.
i. Commonwealth v. Welansky – Nightclub fire. Facts
must show “wanton or reckless” conduct which must go
beyond even gross negligence.
b. Risk of death does not need to be greater than 50%
i. People v. Hall –“Risk of death that has less than a fifty
percent chance of occurring may nonetheless be a
substantial risk depending on the circumstances of the
particular case.”
3. AWARENESS OF RISK  Some jurisdictions find that the defendant must
have been actually aware of the risk.
Page 14 of 43
Criminal Law – McAdams – Winter-Spring 2009
ii. OR
iii. Killing by commission of an unlawful act – “Misdemeanor Manslaughter”
1. A felony that will not support felony murder will be enough for
involuntary manslaughter.
2. LIMITATIONS:
a. Predicate offense must be “malum in se” (wrong in itself) rather
than “malum prohibitum” (prohibited for convenience).
b. Some courts impose additional requirement that D have acted
with criminal negligence, especially where predicate offense is
malum prohibitum.
c. A few courts require a showing that the UNLAWFUL ASPECT OF
ACTIVITY caused the victim’s death – it may not be enough that
the course of conduct constituting the unlawful act caused
death.
b. MPC – Two alternatives:
i. §210.3 – Manslaughter
1. No distinction between involuntary and voluntary.
2. EITHER:
a. Killing committed recklessly.
i. “Consciously disregarded a substantial and unjustifiable
risk that his conduct would cause the death of another.”
ii. If the risk was “of such a nature and degree that…its
disregard involves a gross deviation from the standard
of conduct” that a law-abiding person would do in
actor’s shoes.
b. OR
c. Extreme Emotional DIsturbance
ii. §210.4 – Negligent homicide
1. This consists of killings committed negligently.
2. When a person should have been aware of such a risk and his failure to
perceive it “considering the nature and purpose of his conduct and the
circumstances known to him, involves a gross deviation from the
standard of care that a reasonable person would observe in the actor’s
situation.”  GROSS NEGLIGENCE REQUIREMENT.
5) PUNISHING HOMICIDE – THE DEATH PENALTY
a. GENERAL RULE: The death penalty is not inherently excessive and therefore may,
pursuant to proper procedure, be imposed on a defendant and carried out.
i. LIMITATION - Procedure must be adequate to assure evenhanded
determinations as to whether the penalty is appropriate in each case.
1. Gregg v. Georgia – Must “minimize the risk that the death penalty
would be imposed on a capriciouisly selected group of offenders, the
decision to impose it had to be guided by standards so that the
sentencing authority would focus on the particularized circumstances of
the crime and the defendant.”
ii. LIMITATION – Statutory standards must not be vague.
1. Statutory standards for determining which convicted defendants are
eligible for the death penalty and which will be sentenced to death
violate the 8th amendment if not sufficiently precise.
Page 15 of 43
Criminal Law – McAdams – Winter-Spring 2009
b. DEATH PENALTY SOMETIMES DISPROPORTIONATE:
i. In these cases, Supreme Court has held that the penalty of death would be so
disproportionate to the offense as to violate the 8th Amendment.
ii. Rape of adult women  unconstitutionally disproportionate.
iii. “Nontriggerperson” in Murder  Complicit parties and co-conspirators cannot
be given death penalty for a murder directylc committed by someone else.
iv. Young Murderers:
1. Murderer who was under 16 at time of the crime cannot be executed.
2. 16-17 at time of murder, can be executed.
v. Mentally Retarded  Cannot be executed.
1. Atkins v. Virginia – Guy with IQ of 58 (mental retardation cut-off at 70)
is not able to be executed.
c. “Insane” prisoner cannot be executed:
i. If a condemned prisoner has become “insane,” 8th Amendmnet bars the
prisoner’s execution.
1. A prisoner is considered “insane” if he does not realize the fact of
impending execution or the reason for it.
RAPE:
1) WHAT? Unlawful sexual intercourse with a person without his/her consent.
2) ACTUS REAS:
a. “Carnal knowledge” – sexual intercourse.
i. Means there must have been penetration, however slight.
ii. Traditionally, “unlawful”  husband cannot be convicted of raping his wife.
1. HOWEVER – many states have enacted statutes to criminalize the rape
of a spouse.
b. Without Consent – Against the Will of the Woman
i. Intercourse Accomplished by Force
1. How to establish force?
2. TRADITIONAL – “resistance to the utmost”
a. Some courts applied a rigorous requirement that the victim
have resisted the defendant’s efforts with all her powers.
b. LIMITATION – Not needed where evidence shows that it would
have been futile or was prevented by threats.
3. MODERN – Some courts have eliminated the “by forcible compulsion”
element of actus reas. How much force is necessary?
a. State in Interest of M.T.S.  No more force or effort by the
accused than that required to accomplish sexual penetration so
long as there is the absence of what a reasonable person would
believe to be affirmative and freely given permission.
ii. Intercourse Accomplished by threats.
1. Consent or submission obtained by placing the victim in fear of great
and immediate bodily harm is legally ineffective and is rape.
2. State v. Rusk  Two-tiered approach:
a. Woman must have been put in reasonable, genuine fear of
imminent death or serious bodily harm.
Page 16 of 43
Criminal Law – McAdams – Winter-Spring 2009
b. Defendant’s conduct must have been reasonably calculated to
give rise to a fear on her part to the extent that she was
unable to resist.
3. MPC - §213.1(2)  Permits conviction for “gross sexual imposition”
where submission is compelled by threat of force or “by any threat that
would prevent resistance by a woman of ordinary resolution.”
a. Defendant’s proposal must prevent resistance by a woman of
ordinary resolution.
b. AND
c. Defendant’s proposal has to be a THREAT.
iii. Incapacity to Give Effective Consent
1. If victim was incapable of giving a legally effective consent, intercourse
is against her will and is rape.
2. Fact that she may have expressed words indicating consent is
immaterial.
3. TYPES OF INCAPACITY:
a. Mental deficiency
b. Insanity
c. Intoxication
i. Many states do not impose liability if the woman was
not drugged BY THE D.
ii. MPC §213(1)(b)  Only allows for rape when:
1. D has administered the intoxicant.
2. Without the victim’s knowledge.
3. “for the purpose of preventing resistance
3) MENS REA:
a. NOT CLEARLY DEFINED.
b. Must D be AWARE of lack of consent?
c. Often apply a mistake of fact defense.
d. DEFENSE - Mistaken Belief that Victim Consented Must Be Reasonable
i. Mistake of fact must negate mens rea!
ii. ELEMENTS:
1. Prevents conviction IF:
2. D honestly and in good faith had such a belief.
3. The facts were such that mistake was objectively reasonable.
iii. Commonwealth v. Sherry  “We are aware of no American court of last resort
that recognizes mistake of fact, without consideration of reasonableness, as a
defence.”
1. When a woman says “NO,” then any other interpretation in D’s mind is
irrelevant and wrong.
iv. Commonwealth v. Fischer  Male student accused of rape by girl he’s dating,
and conviction upheld along similar lines to Sherry.
v. REQUIREMENT – Equivocal Conduct by Victim
1. Some cases hold that no issue of mistake of fact is raised for jury
consideration unless the facts tend to show equivocal condut by the
victim that could have led defendant to reasonably believe victim
consented.
Page 17 of 43
Criminal Law – McAdams – Winter-Spring 2009
a. Tyson v. State – Mike Tyson convicted because he presented no
evidence of equivocal conduct.
b. Commonwealth v. Fischer – She said “no” and that is enough to
make sure there was no equivocal conduct.
INCHOATE CRIMES:
1) SOLICITATION:
a. ACTUS REAS:
i. Counseling, inciting or inducing of another to commit the offense.
ii. Solicitation is complete upon performance of the act of solicitation.
iii. No Need for Success - It is not necessary that the person solicited respond
affirmatively.
b. MENS REA:
i. Requires a showing that the D acted volitionally and with intent or purpose of
causing the person solicited to commit the crime.
c. Some modern statues limit the crime to SERIOUS offenses.
d. MPC :
i. §5.02(1) – Makes it a crime to solicit the commission of ANY offense.
ii. §5.05(1) – Makes solicitation punishable to the same degree as is authorized for
the offense solicited.
e. Uncommunicated Solicitation – It’s a crime even if D fails to effectively communicate it
to intended subject.
i. MPC - §5.02(2) – No attempted solicitation, this is solicitation itself!
f. DEFENSE – Renunciation:
i. MPC §5.02(4) – Allows this defense so long as D shows that he persuaded the
subject not to commit the crime under circumstances manifesting a “complete
and voluntary” renunciation of criminal purpose.
g. MERGED INTO CONSPIRACY CHARGES! Cannot have separate convictions for each!
2) ATTEMPT:
a. At common law, it is a crime to attempt the commission of any felony or misdemeanor.
b. MENS REA:
i. The intent to commit the acts or cause the result constituting the target crime.
1. Smallwood v. State – HIV-positive rapist’s conviction for attempted
murder is reversed because he did not have the intent to transmit his
disease to victims, only to rape them.
a. Court says in dicta that if he had said “I’m gonna give you AIDS,”
then conviction could be upheld!
2. PRESUMPTION – One intends the natural and probable results of his
actions.
ii. The intent necessary for the target crime.
1. So if target crime requires purpose, then you need that for MR.
c. ACTUS REAS:
i. Act that progresses sufficiently towards the commission of the offense.
ii. Approaches to determine how far one must go…
1. Act of “Perpetration” rather than “preparation”
a. Some courts state that the D must have gone beyond mere
“preparation” into the zone of “perpetration.”
Page 18 of 43
Criminal Law – McAdams – Winter-Spring 2009
2.
3.
4.
5.
6.
7.
b. Not a useful formula since that formulation is unclear at where
to draw the line.
Last Proximate Act:
a. UNIVERSALLY REJECTED.
Control Over All Indispensable Elements:
a. Some courts require that D have gone far enough to have
obtained control over all factors that are indispensable fo the
commission of the crime.
b. Nothing must be left undone that would prevent D from
committing the crime.
c. State v. Fielder – No attempt to vote illegally until D obtains
ballot!
Physical Proximity Test:
a. How physically proximate was defendant’s conduct to intended
crime?
b. What remains to be done?
c. People v. Rizzo – Since Ds could not find their intended target
and were still looking for them, so there was no “dangerous
proximity to success.”
Equivocality Test:
a. Similar to res ipsa loquitur in tort!
b. CONCERNS:
i. Want to corroborate that they have the intent!
ii. Also, we want to make sure that such intent is fixed and
firm!
c. SO WHAT IS IT?
i. Asks whether the actions of the D supply unequivocal
evidence of his intent!
ii. Res Ipsa Loquitur  Does the thing speak for itself? Do
the actions manifest a clear criminal intent?
iii. Movie Analogy  You see the movie up until the
moment where he is stopped…if there is only one
possible outcome to the movie then he has done it!
“Probable Desistance” Test
a. Attempt only where the act is such that in the ordinary course
of events it would lead to completion of the crime in the
absence of intervening outside forces.
b. Emphasis on the likelihood that D would cease efforts to
commit the crime given the conduct he has already
committed.
MPC – “Substantial step strongly corroborative” of intent - §5.01(1)(c).
a. Gaining ground in most jurisdictions!
b. ELEMENTS:
i. An act constituting a “substantial step” in the course of
conduct intended to result in the crime.
ii. AND
Page 19 of 43
Criminal Law – McAdams – Winter-Spring 2009
iii. That the act be strong corroboration of the D’s
criminal purpose, although it need not establish
purpose by itself.
c. WHAT TYPES OF ACTS? - §5.01(2)
i. Lying in wait, searching for, or following contemplated
victim of crime to place where crime is to be
committed.
ii. Enticing or seeking to entice the contemplated victim to
go to the place where crime would be committed.
iii. Reconnoitering the place where crime is to be
committed.
1. United State v. Jackson – They did this on two
separate occasions.
iv. Unlawfully entering the structure/vehicle where crime
is to be committed.
v. Possessing materials to be employed in the commission
of the crime, if those materials are SPECIALLY DESIGNED
for unlawful use or serve no lawful purpose of the D.
1. United States v. Jackson – They did this.
vi. Possessing, collecting or fabricating materials to be used
in the commission of the crime at or near the place at
which crime is to be committed (where such materials
SERVE NO LAWFUL PURPOSE TO D)
vii. Soliciting an innocent agent to engage in conduct
constituting the crime and a willingness to commit the
crime.
d. Failure to identigy specific victim or target:
i. Some courts hold that D’s failure to identify the specific
victim or target means that D has not gone far enough
for attempt.
d. DEFENSE – IMPOSSIBILITY
i. TRADITIONAL RULE – Only “legal impossibility is defense”.
1. Legal but not factual impossibility is a defense to attempt.
2. “True” Legal Impossibility:
a. Where person thinks something is a crime but it is actually not a
crime at all.
b. WHY DEFENSE?  Person has not demonstrated a willingness
to do things actually prohibited by the law, and thus has not
shown actual dangerousness.
c. People v. Jaffe – No conviction for purchase of stolen goods
when guy thinks he is buying stolen goods, but they are not, in
fact, stolen.
3. Factual Impossibility:
a. When there is no chance at all that D will succeed.
b. REJECTED UNIVERSALLY AS A DEFENSE.
4. “Mixed” legal and Factual Impossibility – Mistake as To surrounding
circumstances:
Page 20 of 43
Criminal Law – McAdams – Winter-Spring 2009
a. Because D misunderstands surrounding circumstances, his
conduct if completed would not actually be a crime, but if the
circumstances are as he believes them to be, his intended
conduct WOULD be a crime.
b. TRADITIONAL VIEW – DEFENSE:
i. The crime of attempt has not been committed and
defense is available.
ii. People v. Jaffe – Attempted purchase of stolen goods?
No conviction when guy thinks he is buying stolen
goods, but they are not, in fact, stolen.
c. MODERN VIEW – NO DEFENSE!
i. A D in this situation has no defense to attempt.
ii. People v. Dlugash – Attempted murder Where guy shot
into dead body thinking that the body was still alive, he
is not afforded this defense.
1. If D had thought it was still alive, then no
defense!
ii. MPC Approach – Only “true legal impossibility” a defense.
1. §5.01(1) - Defines the crime of attempt as consisting of behavior that
would constitute a crime (or a substantial step towards commission of a
crime) if the circumstances were as the D believed them to be.
2. Only true legal impossibility allowed because even if facts as D believed,
then D’s actions would not constitute or be a substantial step towards a
crime.
e. DEFENSE – Renunciation
1. MPC §5.01(4)  “it is an affirmative defense that he abandoned his
effort to commit the crime or otherwise prevented its commission,
under circumstances manifesting a complete and voluntary
renunciation of his criminal purpose.”  Must be BEFORE AR WAS
DONE!
a. So if you’re working on opening a window, and see a dog and
then turn away…they did not give it up in a voluntary way, but
only because the crime was to be made more difficult.
b. The renunciation deeds to be complete  Can’t just be a
decision to postpone time or wait for a new victim!
Page 21 of 43
Criminal Law – McAdams – Winter-Spring 2009
LIABILITY FOR THE CONDUCT OF ANOTHER:
1) COMPLICITY – ACCOMPLICE LIABILITY
a. SUMMARY: Requires proof that D committed the requisite acts (incited or abetted), that
he had the requisite mens rea, and that the person incited or abetted actually
committed the offense.
b. ACTUS REA  D must have directly or indirectly encouraged of facilitated the
commission of the offense.
i. “Abetting” – any significant assistance.
1. One “abets” the commission of an offense if he assists in its commission
in any significant way.
a. NEED NOT BE SHOWN THAT W/O SUCH AID THE PERPETRATOR
WOULD HAVE BEEN UNABLE TO COMMIT THE CRIME!
b. Perpetrator need not be aware of aid  There need not be any
communication between the participants, nor need the actual
perpretrator be aware that he is benefiting from accessory’s
assistance.
i. Tally Judge Case – Convicted where he merely
prevented a telegram from being sent to the victim of a
lynch mob.
c. Impact on actual perpetrator necessary  Court’s often say
that accomplice’s actions must have contributed to the
commission of the crime, suggesting that some discernible
impact upon actual perpetrator is necessary.
i. HOWEVER – MPC - §2.06(3)(a)(ii)  Liability can be
based upon an attempt to aid another in committing a
crime. Under that approach, it is not necessary that D
successfully provide any actually effective assistance.
2. Omission as abetting?
a. Only if you have a legal obligation to intervene!
ii. “Inciting” – any inducement.
1. ENCOURAGEMENT – even if not accompanied by any physical aid – is
sufficient to render one an accomplice.
2. LIMITATION – Perpetrator must be aware of encouragement.
a. Encouragement cannot exist unless the person sought to be
encouraged is AWARE of the efforts.
b. Therefore, one who merely attempts to encourage the
commission of a crime is not an inciter if the perpetrator had no
knowledge of it.
c. MENS REA  THERE ARE TWO STEPS TO THIS!
i. MENS REA FOR CRIME REQUIRED:
1. An accomplice must have the state of mind necessary to commit the
crime by direct action (accomplice must have mental state required for
the perpetrator)
ii. MENS REA REGARDING ASSISTANCE OR ENCOURAGEMENT:
1. One who had no contemplation that his acts that his acts would
encourage or assist the perpetrator cannot be convicted as an
accomplice.
Page 22 of 43
Criminal Law – McAdams – Winter-Spring 2009
a. Hicks v. United States – Where man did not intend for his words
to encourage Stand Rowe from shooting his victim, no
conviction.
2. MODERN POSITION – MPC §2.06(3)(a)
a. Requires that an aider and abettor act with purpose, an
affirmative desire that his acts have an encouraging or assisting
effect.
b. State v. Gladstone – Guy not guilty for pointing out where
marijuana could be bought because he did not “participate in it
as something that he wishes to bring about, that he seek by his
action to make it succeed.”
3. CONTRARY VIEW:
a. Some courts hold that an accomplice will be guilty so long as he
KNEW his acts would encourage or assist the commission of an
offense.
b. Some deciswions have even held recklessness to be sufficient.
d. ADDITIONAL REQUIREMENT  PERPETRATOR MUST HAVE COMMITTED THE CRIME
i. Generally, a person can be convicted as an accomplice only if the crime at issue
was actually committed.
ii. Conviction of Per Unnecessary  Under modern statutes it is NOT necessary
that the actual perpetrator be convicted.
1. However, prosecution must always prove the perpetrator’s guilt as part
of its case in chief at trial of accomplice.
e. SCOPE OF ACCOMPLICE LIABILITY:
i. TRADITIONAL RULE – Accomplice liable for all foreseeable consequences.
1. All foreseeable consequences of his conduct.
2. Liability may be imposed not only for the offense incited or abetted, but
also for all other crimes committed by perpetrator that were
reasonably foreseeable of the contemplated crime.
3. Accomplice is liable for those crimes that, in the exercise of reasonable
care, he should have foreseen – NEGLIGENCE THEORY!
a. People v. Luparello – Guy who gets his friends to hunt down a
man who might know where his girlfriend is is later convicted
after his friends shoot the man.
i. NATURAL AND PROBABLE!
4. HOWEVER – accomplice liability does not extend to those crimes that
were not reasonably foreseeable, as where perpetrator has engaged in
a “personal frolic” of his own.
ii. MPC - §2.06 – rejects traditional rule.
1. An accomplice is only liable for those crimes of the perpetrator that he
ACTUALLY ANTICIPATED and therefore intentionally incited or abetted.
f. DEFENSES:
i. Withdrawal  One who has encouraged or assisted the commission of a crime
may escape liability by making an effective and timely withdrawal.
1. COMMON LAW:
a. Withdrawal must be timely  Must take place before the chain
of event sleading to the crime has progressed so far as to
become unstoppable.
Page 23 of 43
Criminal Law – McAdams – Winter-Spring 2009
b. Inciter – Communication of renunciation sufficient.
i. A legally effective withdrawal may be accomplished by
communicating a renunciation of the crime to the
perpetrator.
c. Abettor – must countermand prior aid.
i. Renunciation alone is not enough.
ii. Abettor must act to render whatever assistance he has
given ineffective.
2. MPC - §2.06(6)(c)
a. ANY OF THESE METHODS:
i. Wholly depriving his prior assistance of its effectiveness.
ii. Providing timely warning of the perpetrator’s plan to
law enforcement authorities.
iii. Making proper effort to prevent commission of the
offense by the perpetrator.
g. RELATIONSHIP BETWEEN THE PARTIES:
i. Principal in the First Degree:
1. The person who actually perpetrated the crime by their own acts, by the
acts of innocent agents, or by means of inanimate agency.
2. EXCEPTION – Innocent Agents – Where a man uses a child to commit a
crime, the man is the principal in the first degree by using the child as an
innocent agent.
ii. Principal in the Second Degree
1. Those who incite or abet the commission of the crime AND who are
constructively present at the time of its commission.
2. CONSTRUCTIVE PRESENCE – A person is constructively present when he
asssits the principal in the first degree at the very time the offense is
committed but from such a distance that he is not actually present.
iii. ACCESSORIES:
1. Before the fact – incite or abet the felony, but are not actually or
constructively present at the commission.
2. After the Fact  Those who receive, comfort or assist another, knowing
that the other has committed a felony in order to hinder the per’s
arrest, prosecution or conviction.
iv. SIGNIFICANCE OF PARTIES RELATIONS:
1. Accessory could not be convicted unless the principal was convicted,
although both could be convicted at same trial if prinipal’s guilt
determind first.
a. HOWEVER – Modern jurisdictions have mainly abolished the
requirement that principal be convicted before accessory.
2. An accessory could not be convicted of a higher offense than that for
which the principal was convicted.
2) CONSPIRACY:
a. As Accessorial Liability – The Fate of Co-Conspirators:
i. GENERAL RULE OF CO-CONSPIRATORY LIABILITY – The Pinkerton Rule
1. ELEMENTS:
a. Each member of a conspiracy is liable for those crimes
committed by all other members that were:
Page 24 of 43
Criminal Law – McAdams – Winter-Spring 2009
b. A reasonably foreseeable result of the conspiracy
c. AND
d. Committed in furtherance of the conspiracy.
2. State v. Bridges – “A co-conspirator may be liable for the commission of
substantive criminal acts that are not within the scope of the conspiracy
if they are reasonably foreseeable as the necessary or natural
consequences of the conspiracy.”
ii. Liability for crimes committed prior to joining?
1. United States v. Knight – “One may join a conspiracy already formed and
in existence, and be bound by all that has gone on before in the
conspiracy, even if unknown to him.”
2. HOWEVER, that is a minority opinion and NO ACTUAL CONVICTIONS
FOR SUCH PREJOINING CRIMES HAS TAKEN PLACE!
3. Highly unlikely that this will happen!
iii. Withdrawal Preventing Liability  if a D effectively withdraws from a
conspiracy, he will not be held liable for crimes thereafter committed by his
former co-conspirators.
1. ELEMENTS OF WITHDRAWING FROM A CONSPIRACY:
a. Withdrawal must be communicated to all other members of
conspiracy!
b. Withdrawal must tae place in time for the remaining coconspirators to follow D’s example!
c. SOME COURTS  Withdrawing party must affirmatively and
successfully prevent the former co-conspirators from
completing the venture!
b. Conspiracy as a crime in and of itself:
i. MENS REA:
1. ELEMENTS:
a. Intent to agree
i. Defendant must have actually intended to agree or
combine with others.
b. Intent to accomplish objective
i. The defendant must have purpose/intent to accomplish
the objective of the conspiracy.
ii. PROOF OF INTENT – a “stake in the venture.”
1. A D’s intent that the objective be achieved is
often proved by showing that the D stood to
benefit financially or otherwise from its
successful completion.
2. ALSO – evidence that D would not gain a benefit
from the venture would suggest that he did not
have intent.
iii. Lauria’s other ways to infer intent:
1. When there is no legitimate use for the goods
or services provided.
Page 25 of 43
Criminal Law – McAdams – Winter-Spring 2009
2. Where the criminal’s purchases make up so
much of D’s business that it can be said that he
is taking part of the crime.
iv. PRODUCING GOODS OR SERVICES  If D merely had
knowledge that the goods/services would be used for a
crime, is this enough?
1. OBJECTIVE IS NOT A SERIOUS CRIME  If crime
is not a serious one, a mere showing that the D
knew he was furthering an illegal purpose by
providing the goods is probably not sufficient.
2. OBJECTIVE IS A SERIOUS CRIME  The more
serious the crime, the more likely the D-supplier
will be found conspirator on simple proof of
knowledge.
v. SUMMARIZED - LAURIA TEST OF INTENT:
1. Direct evidence of intention to participate:
2. OR
3. Inference that he intends to participate based
on:
a. His special interest in activity.
b. Aggravated nature of the crime itself.
c. SOME COURTS - Requirement of “corrupt” motive
ii. ACTUS REAS:
1. COMMON LAW: Entering into of the requisite agreement.
a. “Implied Agreement” sufficient:
i. The agreement need not be an express or formal one
but can be implied from the cooperative acions of the
parties.
ii. One who observes unlawful acts taking place and
cooperates in their commission becomes a member of
the agreement to carry out those acts.
iii. Interstate Crcuit Inc. v. US  “It was enough that,
knowing that concerted action was contemplated and
invited, the distributors gave their adherence to the
scheme and participated in it.” Move distributors join
together to mess with theater chains.
b. Connecting One to Existing Agreement
i. If existence of a conspiracy is clearly shown, relatively
slight evidence will be sufficient to connect a particular
D with it.
2. MODERN VIEW:
a. OVERT ACT REQUIREMENT – MPC §5.03(5):
i. Required by MPC §5.03(5) except for conspiracies to
commit more serious offenses.
ii. WHY  Make sure that the conspiracy is at work and is
not simply a shared intention of the parties. Also, gives
those who enter into the agreement a chance to repent.
Page 26 of 43
Criminal Law – McAdams – Winter-Spring 2009
iii. DEFINITION OF OVERT ACT:
1. An act that effects the object of the conspiracy
or that has a tendency to further the objective.
a. NOT substantial step!
2. Mere discussions among parties as part of
reaching the agreement are not included.
3. A single act in pursuit of the unlawful objective
by ANY ONE of the members will suffice.
c. SCOPE OF THE AGREEMENT – SINGLE OR MULTIPLE CONSPIRACIES
i. One agreement with multiple unlawful purposes  If there is only one
agreement, then there is only ONE criminal conspiracy regardless of how many
criems the conspirators plan to commit.
ii. “Chain” Situation – Multiple Links Making up One Conspiracy:
1. If a series of overlapping transactions is shown, the situation will often
be construed as involving ONLY ONE overall agreement.
2. Each transaction will be regarded as a “link” in an overall single “chain,”
if parties to each link transaction KNOW THAT OTHER LINKS ARE
INVOLVED AND HAVE A GENERAL INTEREST IN THE SUCCESS of the
overall series of transactions.
3. United States v. Bruno  Smuggler sells to middleman, and middleman
agrees to sell to retailer. No express communication b/w retailer and
smuggler, but this was a single chain conspiracy to import, sell and
possess narcotics where each member knew that “the success of that
part with which he was immediately concerned was dependent upon
the success of the whole.”
4. DISTINGUISH – Independent Links
a. If those involved in each link transaction are unaware that the
other transactions are taking place, or know about other
transactions but are indifferent as to whether they take
place…situation will be characterized as involving multiple and
separate conspiracies.
b. US v. McDermott  Because McDermott did not know the
actions of the other members in the chain, then he could not be
said to have been in agreement with them.
iii. “Wheel and Spoke” Situations:
1. ELEMENTS:
a. Where one or more persons (the hub) enter into a number of
different transactions with various other persons (the “spokes
of the wheel”)
b. AND
c. The persons in each transaction are unconcerned with other
transactiosn entered into by the “hub”,
d. THEN
e. The situation will be characterized as involving a number of
different conspiracies.
i. Hub is party to each conspiracy.
ii. Members of each spoke are regarded as conspiring only
with the hub and other members of that spoke.
Page 27 of 43
Criminal Law – McAdams – Winter-Spring 2009
2. Kotteakos v. US – Several companies involved where D made fraudulent
loans at different times on behalf of several persons, and each loan was
distinct because except for D, no conspirator was interested in whether
any other’s loans went through.
iv. MPC Approach - §5.03(1) – “Unilateral”
1. Code simply requires an agreement “by” the defendant, thus a D can be
convicted of conspiring with person who has been acquitted or with a
cop feigning cooperation because the statuts of co-conspiratoor is
irrelevant.
a. ONLY INQUIRY  Did the D “agree?”
b. So retailer could be convicted while seller won’t be!
d. SPECIAL ISSUES WITH CONSPIRACY:
i. Aquittal of Co-Conspirators = No Agreement
1. TRADITIONAL APPROACH – “plurality”
a. A criminal conspiracy requires an actual criminal agreement
between at least two persons.
b. ACQUITTAL OF CO-CONSPIRATORS:
i. If facts show that all other claimed co-conspirators
except D did not enter into agreement, then D Must be
aquitted because there could have been no actual
agreement.
ii. EXCEPTION – Some courts reject this rule, reasoning
that acquittal of the co-conspirators is not necessarily
based on a conclusion that there was no agreement but
may reflect juries’ views that guilty co-conspirators
simply deserve a break.
c. DISMISSAL OF CHARGES AGAINST OTHER CONSPIRATORS:
i. Courts differ as to whether this requires dismissal of the
remaining defendant.
ii. Some jurisdictions equate dismissals with acquittals.
iii. Others reject the analogy and proceed with prosecution
of remaining conspiracy member.
d. SHOWING CO-CONSPIRATORS WERE “FEIGNED ACCOMPLICES”
i. D cannot be held guilty of conspiracy where all the coconspirators are shown to have only feigned
agreement.
ii. EX: All others were actually cops pretending willingness
to undertake the crime.
2. MPC Approach - §5.03(1) – “Unilateral”
a. Code simply requires an agreement “by” the defendant, thus a
D can be convicted of conspiring with person who has been
acquitted or with a cop feigning cooperation because the
statuts of co-conspiratoor is irrelevant.
b. ONLY INQUIRY  Did the D “agree?”
c. Only concerned with D’s state of mind!
d. Garcia v. State – Conspiracy liability where woman agreed with
cops to commit murder because all that was needed was her
agreement.
Page 28 of 43
Criminal Law – McAdams – Winter-Spring 2009
ii. Wharton’s Rule  Where persons agree to commit an offense that by its
definition necessarily requires a preliminary agreement between the parties,
there can be no conviction of conspiracy.
1. Gerardi v. US  “Transporting woman across state lines” cannot be
convictable of conspiracy because it involves the agreement between
man and woman to cross state lines.
2. EXCEPTIONS:
a. Agreement involving more than ESSENTIAL participants = ALL
CONSPIRATORS Can be convicted.
b. Objective of agreement not achieved  sometimes the rule is
only applied when the objective was achieved, and if not,
conspiracy charges for everyone!
e. DEFENSES:
i. Impossibility of Success = NO DEFENSE>
ii. Withdrawal:
1. COMMON LAW:
a. Defendant’s withdrawal is NO DEFENSE.
2. MPC - §5.03(4):
a. ELEMENT: Defense if…
i. Thwarted the success of the conspiracy
ii. Under circumstances manifesting
1. Complete
2. AND
3. Voluntary renunciation.
PART FOUR: DEFENSES:
MENS REA DEFENSES:
1) MISTAKE OF FACT:
a. In General  Prevents liability if it shows that the D lacked the mens rea essential to the
crime charged (MPC §2.04(1))
i. Burden of Raising the Issue  Must be on the D to bring forth evidence
suggesting that D was mistaken.
ii. Burden of Proof  Burden on prosecution to show that D’s mistake did NOT
negate the MR.
b. ELEMENTS:
i. REQUIREMENT OF REASONABLENESS:
1. COMMON LAW:
a. A reasonable persom would have made the same mistake under
the circumstances.
b. EXCEPTION – Reasonableness not required to be shown when
the mistake is offered to negate the existence of a specific
intent required for guilt.
2. MPC:
Page 29 of 43
Criminal Law – McAdams – Winter-Spring 2009
a. §2.04(1)(a)  The mistake of fact need not be reasonable, so
long as it negates the state of mind required for liability.
ii. REQUIREMENT THAT CONDUCT MUST HAVE BEEN MORALLY AND LEGALLY
PERMISSIBLE HAD FACTS BEEN AS D BELIEVED:
1. COMMON LAW:
a. Some decisions require a showing that the D’s conduct would
have been legally permissible and morally defensible had the
facts been as the defendant believed them to be.
2. MPC:
a. §2.04(2)  Defense of ignorance or mistake is not available if
the D would still have been guilty of a criminal offense had the
facts been as he supposed.
b. But it further states that, in such cases, D may be held liable for
an offense no more serious than he would have been guilty of
had the facts been as he believed them to be.
c. Strict Liability  Mistake is irrelevant if the offense imposes strict liability.
2) INTOXICATION:
a. INVOLUNTARY INTOXICATION:
i. A COMPLETE DEFENSE if it so affected the D to render her insane within the
meaning of the insanity test adopted in the jurisdiction.
ii. Involuntary  Only if the D either:
1. Did not know that the substance ingested was intoxicating
2. OR
3. If she consumed it knowing that it was intoxicating but under direct and
immediate duress.
4. ALSO - MPC §2.08(4), (5)(c)  pathological intoxication – intoxication is
involuntary if it is grossly excessive in proportion to the amount of the
substance consumed and the D did not know that she was unusually
susceptible to such intoxication.
b. VOLUNTARY INTOXICATION:
i. MAJORITY COMMON LAW:
1. A defendant can rely on voluntary intoxication only to negate a specific
intent if one is required by the crime charged.
a. People v. Hood  Since assault with a deadly weapon is a
general intent crime, D’s intoxication has no impact on his
liability for that charge.
i. HOWEVER – Assault with intent to murder requires
specific intent (to kill), therefore if D’s intoxication
shows he lacked that specific intent, he cannot be
convicted of that crime.
ii. MPC - §2.08(2):
1. Evidence of voluntary intoxication can be used to show the absence of
certain mental states.
2. MPC itself provices that voluntary intoxication can be used to show the
absence of PURPOSE OR KNOWLEDGE!
3. If RECKLESSNESS is sufficient, and D was unaware of the risk involved
because of voluntary intoxication, unawareness is immaterial to guilt.
iii. OTHER MINORITY APPROACHES:
Page 30 of 43
Criminal Law – McAdams – Winter-Spring 2009
1. Few jurisdictions  voluntary intoxication is totally irrelevant to
liability, even if it shows the lack of a specific intent (TEXAS).
2. California Rule  Negates mens rea but not “capacity.”
a. Cannot be used to show that D lacked capacity to form any
mental state required by the crime, only whether D Actually DID
form a required mental state.
3. Few Jurisdictions  Voluntary intoxication can negate any required
mental state!
a. State v. Stasio – “what is required is a showing of such a great
prostration of the faculties that the requisite mental state was
totally lacking.”
3) MISTAKE OF LAW:
a. IGNORANCE OR MISTAKE SHOWING LACK OF MENS REA
i. The defendant may rely on that ignorance or mistake and if trier of fact has a
reasonable doubt as to whether the prosecution has proven the required mens
rea, the defendant must be acquitted.
1. MPC §2.04(1)(a)
2. Cheek v. US  Belief that wages are not income and that he was not a
taxpayer may be a valid defense because it eliminates the mens rea of
withholding taxes.
ii. PRELIMINARY QUESTION  Did the mens rea of the crime require awareness
of the law about which the D claims to have been ignorant or mistaken?
1. If crime DOES require awareness, then application of rule is obvious.
2. If crime DOES NOT require awareness, then rule is not applied.
iii. REASONABLENESS NOT REQUIRED  D’s ignorance or mistake must be given its
full logical significance.
iv. Belief in Unconstitutionality usually not relevant: D’s mistaken belief that
although the crime applies to his conduct it is unconstitutional and thus cannot
be enforced usually CANNOT be relied upon.
1. Cheek v. US  Guys belief that paying income taxes is unconstitutional
is not a defense for failure to pay them.
b. MISTAKEN BELIEF THAT CRIMINAL LAW DOES NOT PROHIBIT INTENDED CONDUCT:
i. Passive ignorance not sufficient  Must be based on evidence that D addressed
the matter and AFFIRMATIVELY DECIDED that the law did not make the conduct
a crime.
1. “Ignorance of the law is no excuse.”
ii. CONSTITUTIONAL CONCERNS:
1. IN GENERAL:
a. Some courts have reasoned that under certain limited
circumstances, convicting a defendant despite the mistaken
belief that her conduct is not criminal would be so unfair as to
violate constitutional Due Process requirements!
b. Lambert v. California – “This registrant on first becoming aware
of her duty to register was given no opportunity to comply with
the law and avoid its penalty, even though her default was
entirely innocent.”
i. “We believe that actual knowledge of the duty to
register or proof of the probability of such knowledge
Page 31 of 43
Criminal Law – McAdams – Winter-Spring 2009
and subsequent failure to comply are necessary before
a conviction…can stand.”
ii. Only applies in domains where there is something
inherently immoral or dangerous in what you are doing!
2. Misleading by Officials  if someone in official capacity misleads a D
into concluding that her conduct will not be criminal, due process will
bar her conviction for such conduct.
iii. ELEMENTS:
1. Crime must be one that requires MR  so no for strict liability.
2. Belief must be reasonable:
a. MPC §2.04(3) – Defendant’s belief that the law does not
prohibit her conduct must be OBJECTIVELY reasonable.
3. Reliance must be placed on particular matters:
a. D must have formed her belief on the basis of certain limited
grounds…
b. Statute Later Held Unconstitutional:
i. D can successfully defend where she acted in good faith
reliance upon a statute making her conduct permissible,
even though the statute was subsequently found to be
unconstitutional.
c. Judicial Decision
i. D can escape conviction where she acted in reasonable
reliance on a judicial decision holding that conduct was
not criminal.
ii. Some courts hold that decision must be of the highest
state court.
d. Official Interpretation
i. SPLIT OF AUTHORITY:
ii. MPC §2.04(3)(b) – Defense available if D reasonably
relied on an “administrative order or grant of
permission” or “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.”
iii. RELIANCE ON PRIVATE COUNSEL = NO DEFENSE.
e. Personal Interpretation of Crime
i. Some places provide that the defense can be based on a
statement or interpretation of the law contained in
statute defining the crime.
ii. D might be able to argue that he is entitled to rely on
his own personal interpretation of statute if he can
convince jury that interpretation was reasonable.
iii. MPC §2.04(3)(v) – DOES NOT ALLOW THIS DEFENSE
when the D’s reading of the statute is “afterwards
determined to be invalid or erroneous.”
iv. People v. Marrero  Defense of false interpretation of
the law unavailable because the defense implicitly
Page 32 of 43
Criminal Law – McAdams – Winter-Spring 2009
requires that the official interpretation relied upon have
been later adjudicated as wrong.
AFFIRMATIVE DEFENSES – JUSTIFICATION DEFENSES:
1) Self-Defense
a. ELEMENTS:
i. Reasonable Belief that Defense Necessary
1. D must reasonably believe that it is necessary to defend herself.
2. EVEN IF BELIEF TURNS OUT TO BE WRONG  honest and reasonable
belief is enough!
3. ONCE NECESSITY ENDS, SO DOES THE DEFENSE!
a. US v. Peterson  “The right of self=defense arises only when
the necessity begins, and equally ends with the necessity.”
4. EXCEPTION – MPC = subjective test!
ii. Threatened Harm
1. D must have reasonably believed that she was threatened with physical
harm at the hands of another.
iii. Imminency of Threatened Harm
1. COMMON LAW:
a. D must have reasonably believed that harm WOULD BE
INFLICTED IMMEDIATELY IF SHE DID NOT ACT in self-defense.
b. Court must consider whether the threatening person was
actually present, and if so, whether person appeared willing and
able to injure D.
2. HOWEVER – MPC §3.04(1) relaxes this requirement:
a. It is sufficient if the actor reasonably believes that the use of
defensive force was “immediately necessary.”
iv. Unlawfulness of Threatened Harm
1. D must have reasonably believed that threatened harm would be
UNLAWFUL!
v. Force Used was Necessary to Prevent Harm
1. D must have reasonably believed that the threatened harm was such as
to require the defensive force actually used.
2. MPC §3.04(1) – No defense available to the use of force beyond that
which reasonably appeared necessary to prevent further harm.
b. DEADLY FORCE USED – ADDITIONAL ELEMENTS:
i. Perceived Threat of Death or Serious Bodily Injury
1. Deadly force may be used ONLY if D reasonably believed that other
person was about to inflict deadly or serious bodily injury upon her.
2. COMMON LAW:
a. This is an objective standard – reasonable person in defendant’s
shoes!
i. People v. Goetz – Reasonableness of Goetz’s actions
must be found objectively, otherwise the defense
would “allow citizens to set their own standards for the
permissible use of force.
3. MPC  Subjective standard!
Page 33 of 43
Criminal Law – McAdams – Winter-Spring 2009
a. A defendant charged with murder need only show that he
believed that the deadly force was necessary to protect himself!
ii. Deadly Force Necessary to Prevent Death or Serious Bodily Injury
1. D will be allowed to use deadly force in self-defense if she reasonably
believed that deadly force used was necessary to prevent the death or
seriousl bodily harm with which she was threatened.
2. If she realized that non-deadly force would suffice, then NO DEFENSE.
iii. Duty to Retreat?
1. Majority Rule:
a. No strict requirement of retreat before the use of deadly force
in self-defense.
b. BUT NOTE – Any evidence that the D could have retreated, the
safety of such retreat and the places to which retreat might be
made are relevant as to whether D decided deadly force was
reasonably necessary.
2. Minority Rule – Common Law Approach:
a. Common law required that D show she had no opportunity to
retreat or that she unsuccesffuly sought to use an available
opportunity.
b. EXCEPTION – Jurisdictions requiring retreat generally demand
such retreat only where it appears available in complete safety.
c. EXCEPTION – No duty to retreat when you are in your own
home.
3. MPC - §3.04(2)(b)(ii):
a. Requires that the defendant retreat, surrender possession of a
thing demanded by another asserting a claim of right to it, or
comply with a demand that she abstain from any action she has
no duty to take if D knows this can be done with complete
safety.
c. Battered Women:
i. MAJOR PROBLEMS WITH DEFENSE:
1. Imminence of the threatened harm  in many cases, D attacked the
victim after a particular episode of abuse had ended. Therefore, any
harm victim feared was not “imminent” as required by self-defense law.
a. State v. Norman – D shot abusive husband while he was asleep;
thus, evidence did not show she feared imminent harm from
him and court found that no issue of self-defense was
presented.
2. Options to use of force:
a. Sometimes, absence of any physical barrier to D leaving the
relationship suggests options were sufficiently available as to
make her use of deadly force objectively unreasonable.
ii. RESPONSES:
1. Expert Testimony on Battered Woman Syndrome:
a. Testimony suggests that effects of a battering relationship are
such as to cause battered person to conclude that leaving the
relationship or otherwise preventing further abuse is simply not
Page 34 of 43
Criminal Law – McAdams – Winter-Spring 2009
a practical and available option and thus that future violence is
inevitable.
b. State v. Kelly  This evidence is fine in helping establish reasons
why she did not leave the relationship, thus dispelling juries
ideas that “well, if the violence was so bad, why did she not just
leave?”
2. Need to Consider D’s Position:
a. Should readsonabeleness be evaluated in light of:
i. Spouse’s physical and psychological characteristics
ii. Spouse’s specific experiences as a victim of battering.
iii. Disadvantaged position that women have in society.
b. Therefore, the point of view of a “reasonable battered woman.”
3. Elimination of Requirement of Imminent Harm:
a. Some have urged that (at least in these cases) the law should no
longer impose a requirement that the D have reasonably
perceived the threatened deadly harm as imminent.
b. Rather, all relevant policy concerns would be satisfied if the law
required only that D reasonably perceive the use of deadly force
in self-defense to be NECESSARY.
2) Protection of Property
a. Reasonable nondeadly force is permissible if the force used reasonably appears
necessary to prevent or terminate an unlawful intrusion onto or interference with that
property.
i. DEADLY FORCE IS NOT ALLOWED.
b. Property in Possession of Another:
i. Common Law  No right to use force in defense of property in the possession
of another.
ii. MPC §3.06(1)(a)  Permits the use of nondeadly force to protect property in
the defendant’s possession or in the possession of another for whose protection
the D acts.
c. Spring Guns:
i. Common Law  Justifiable only if the person who set the trap would have been
justified in inflicting the same harm had he actually been present.
ii. MPC §3.06(5) Mechanical devices designed or known to cause death or
serious bodily harm are NEVER permissible.
d. DWELLING:
i. COMMON LAW  deadly force could be used in defense of one’s dwelling if it
reasonably appeared necessary to prevent a forcible entry of the dwelling, and a
warning had first been given the intruder to desist and do not enter.
ii. MPC §3.06(3)(d)(ii)  Limited right to use deadly force:
1. ELEMENTS:
2. Defendant believes intruder is attempting to commit a felony
3. AND
4. Either:
a. The intruder has used or threatened deadly force.
b. OR
c. The use of nondeadly force would expose someone in the
dwelling to substantial danger of bodily harm.
Page 35 of 43
Criminal Law – McAdams – Winter-Spring 2009
iii. MAKE MY DAY LAWS:
1. Allow deadly force if:
a. Other person has made unlawful entry into dwelling/property.
b. Occupant has reason to believe the other person either has
committed a crime in the dwelling or is committing or intends
to commit a crime against a person or property in dwelling.
c. Occupant reasonably believes the other person “might use any
physical force, no matter how slight, against occupant.”
3) USE OF FORCE TO EFFECTUATE ARREST:
a. POLICE OFFICERS – Deadly force limited to “dangerous” felonies.
i. Deadly force is only permissible if the officer has reason to believe that the
suspect has committed a dangerous felony (one involving a risk of physical harm
to others, such as murder, manslaughter, kidnapping, rape or burglary)..
ii. MPC§3.07(2)(b)  ELEMENTS: Would permit the use of deadly force only:
1. where the crime for which the arrest is made involved the use or
threatened use of deadly force
2. OR
3. If there was a substantial risk that subject would cause death or serious
bodily injury if arrest were delayed.
iii. Arrest is unconstitutionally unreasonable if arresting officer uses deadly force
and lacked reason to believe that arrestee posed a significant threat of death or
physical injury to officer or others.
1. Use of deadly force in violation of this rule gives rise to civil cause of
action for damages.
iv. Cop is entitled to act on REASONABLE APPEARANCES in using force…so as long
as cop reasonably believes the force used is necessary, officer has a defense
even if that belief turns out to be wrong.
4) Necessity/Choice of Evils
a. ELEMENTS:
i. Objectively Reasonable Belief
1. Reasonable belief is sufficient for all of the elements!
ii. “Greater” harm threatened:
1. D must have committed the crime for the purpose of avoiding a harm or
evil to himself or someone else.
2. COMMON LAW:
a. D reasonably believes that the threatened harm is greater than
that involved in the crime.
3. MPC - §3.02(1)(a):
a. Requires that the harm sought to be avoided “is greater” than
that sought to be prevented.
b. Therefore, the threatened harm must be greater in actual fact!
4. EXCEPTION – Defense is not available if legislature has determined that
the harm sought to be avoided by D is not greater than that involved in
the crime.
iii. Threatened harm is “Imminent”
1. Until threatened harm becomes imminent, there are ordinarily options
available to avoid the harm other than violating the law.
Page 36 of 43
Criminal Law – McAdams – Winter-Spring 2009
2. US v. Schoon  Protesters actions not justifiable because the harm to El
Salvador was not imminent. They could have had other legal means of
protesting, such as contacting elected representatives!
iv. No less harmful alternatives available
v. Defendant not at fault.
1. SOME VERSIONS of defense require that D not have been at fault in
creating the situation that made it necessary to choose between a crime
and a more serious harm.
2. MPC  Defense may NOT be used by a D who was reckless or negligent
in bringing about the situation if recklessness or negligence is sufficient
for the crime charged!
b. Prison escape?
i. Oftentimes this defense is deployed when people have escaped from prison
because greater evils awaited them inside.
ii. These claims have generally been rejected on the grounds that there were
other, noncriminal options available.
iii. A few decisions have upheld the defense where D establishes that efforts to
secure protection from prison authorities or courts would have been impossible
or useless.
1. People v. Unger  Rejects below proposition and allows for the defense
in totality.
iv. DUTY TO SURRENDER  Many courts have indicated that necessity may apply
to the crime of escape, but a successful defense must show that once the
threat of immediate harm was over, D promptly reported to authorities.
AFFIRMATIVE DEFENSES – EXCUSE DEFENSES
1) DURESS
a. ELEMENTS:
i. Must have been a Threat:
1. Many formulations of the defense require that the D have actually been
“coerced,” which suggests that a reasonable belief is NOT enough and
there must in actual fact have been a sufficient threat made.
ii. Threat must be of sufficiently serious harm:
1. COMMON LAW:
a. Defense requires that the threat be of death or serious bodily
injury.
2. MPC - §2.09(1):
a. Permit the defense to be based on lesser bodily harm; requiring
only a threat to use unlawful force against the person.
iii. Subject of threat:
1. COMMON LAW AND MPC  It is NOT necessary that the D himself be
the subject of the threats; threates to harm a member of family, or even
a stranger, are sufficient.
iv. Threat must be of “immediate” harm:
1. COMMON LAW:
Page 37 of 43
Criminal Law – McAdams – Winter-Spring 2009
a. Imminence is an absolute prerequisite to the availability of a
duress defense.
b. Threats to do harm in the future, no matter how serious, will
not suffice.
2. MPC:
a. Imminence is only one factor to be weighed by the jury in
determining whether the D’s conduct was “that of a person of
reasonable firmness in his situation.”
v. Defendant’s Submission must have been “Reasonable”
1. COMMON LAW:
a. D’s submission to the coercion and demand that he commit the
crime was reasonable.
b. No opportunity to obtain assistance or avoid the harm by some
other, noncriminal method.
2. MPC - §2.09(1):
a. The situation must have been such that a person of reasonable
firmness in the circumstances would have been unable to resist
the demand to commit the crime.
b. LIMITATIONS:
i. COMMON LAW - Not applicable to some criminal homicides:
1. No defense to the intentional killing of another person.
2. HOWEVER  may be used to negate premeditation, thus resulting in a
lesser grading of the murder.
3. ALSO  in some jurisdictions, a showing of duress will reduce a
homicide charge that would otherwise be murder to manslaughter.
ii. Not applicable if D subjected himself to duress:
1. NO DEFENSE if D intentionally or recklessly placed himself in a position
in which he should have foreseen that he would be subject to duress.
2) INSANITY:
a. ELEMENTS:
b. At the time of the crime, did the defendant have a sufficient impairment to constitute
insanity?
i. Mental Illnes or “Disease”
1. A traditional mental illness such as psychosis.
2. EXCEPTION – MPC §4.01(2)  Many jurisdictions (MPC included)
provide that the defense cannot be based upon “an abnormality
manifested only by repeated criminal or other antisocial conduct.” 
Probably intended to mean that psychopaths are not allowed to use the
defense.
ii. Mental Retardation:
1. If this satisfies the applicable test, can render a defendant legally insane.
iii. Involuntary Intoxication:
1. Can support an insanity defense if it produces the required effect on the
defendant’s mind.
iv. Drug Addiction:
1. United States v. Lyons – The addiction itself does not fall within the
ambit of “mental disease or defect.”
Page 38 of 43
Criminal Law – McAdams – Winter-Spring 2009
2. EXCEPTION – “We do not doubt that actual physical damage to the
brain itself falls within the ambit of ‘mental disease or defect.’”
c. Did that impairment so affect the defendant as to meet the legal standard for
insanity?
i. VARIOUS TESTS:
1. Distinguish between two types:
a. Cognitive Impairments  concern the person’s intellectual
processes and involve impaired ability to perceive reality and to
reason about it.
b. Volitional Impairments  Concern person’s ability to control his
behavior and involve impaired ability to avoid engaging in
conduct that the person intellectually – or cognitively –
recognizes is wrong.
ii. M’Naghten Test – Cognitive Test
1. Defendant is to be acquitted by reason of insanity only if, at the time
of the crime:
2. As a result of his mental impairment
3. Did not know the nature and quality of his act
a. Only if defendant did not understand the act’s physical nature
and consequences (that holding a flame to a building will cause
it to burn).
b. A minority of courts define this as requiring a more basic and
accurate understanding of the significance of the action – if he
lacked “True insight” into the nature of the conduct.
4. OR
5. Did not know that the act was wrong.
a. TWO WAYS TO DEFINE WRONG:
b. “Legal Wrong” Approach
i. Most American courts adopt this view.
ii. Defendant is to be convicted unless his impairment
caused him to believe his action was legally permissible.
1. State v. Crenshaw – “In this case, legal wrong is
synonymous with moral wrong. It is important
to note that it is society’s morals, and not the
individual’s morals, that are the standard.”
iii. EXCEPTION – “Deific Decree” rule
1. Will allow for an acquittal of a D who believes
his knowingly illegal action was ordained by
God as a result of a direct command from God.
c. Moral Wrong Approach
i. Some believe a “wrong” should mean morally wrong.
ii. The few jurisdictions that take this approach limit it by
requiring that the D believe his action was morally
acceptable according to general societal standards.
iii. Thus, acquittal is not required on a showing that the D
believed his action morally right under his own
subjective standards of right and wrong if those
standards are not accepted by society as a whole.
Page 39 of 43
Criminal Law – McAdams – Winter-Spring 2009
iii. Irresistible Impulse Test – Loss of Control Test
1. Some jurisdictions have long provided that a D is entitled to acquittal on
insanity grounds if his commission of the crime was caused by an
“insane impulse” that overcame his will to avoid the crime.
iv. Model Penal Code Test – §4.01(1) - Combination of Cognitive and Loss of
Control Tests
1. ELEMENTS:
2. Because of mental impairment, D lacked substantial capacity to:
a. Appreciate the criminality (wrongfulness) of conduct.
i. Thus incorporating a modernly phrased cognitive test
based on M’Naghten.
b. OR
c. Conform his conduct to the requirements of law.
i. Incorporating a loss of control test.
v. Mens Rea Approach – Mens rea or State of Mind Test
1. Some jurisdictions have done away with the insanity defense and only
allows for Ds to use evidence of mental impairment to show that they
did not have the requisite mens rea for the crime charged.
d. OTHER:
e. PROCEDURE FOLLOWING ACQUITTAL BY REASON OF INSANITY:
i. Post-Acquittal Commitment  Some provision is made in all jurisdictions for
possible hospitalization of defendants found NGRI.
ii. Under federal statute, an NGRI D is automatically committed to a hospital for al
imited period.
1. This commitment is continued only if at a hearing held within 40 days, D
fails to show that he is no longer dangerous.
iii. Jury Instructions on the Consequences of Acquittal:
1. Jurisdictional split on whether to inform juries that acquittal will not just
result in these guys being let loose on the streets.
2. Defendants argure that this is necessary, so that juries don’t get the
wrong idea that their insane client will be running about free and easy.
f. POLICY ARGUMENTS:
i. FOR DEFENSE:
1. Conviction implies ethical blameworthy, and the insane are not ethically
blameworthy…so we need to provide a method where they can avoid
the stigma and harsh punishment imposed for criminal responsibility.
2. Reinforces individual responsibility  insanity defense tends to
strengthen attitudes of general responsibility that keep people from
violating the law.
3. Effective way of diverting proper persons into the mental health system.
Effective treatment not available in prisons is provided through
commitment and such persons are released when no longer dangerous.
ii. AGAINST DEFENSE:
1. Does not really benefit the offender since they will spend more time in
the mental hospital than they would in prison.
2. Favors wealthier defendants who are better able to secure expert
psychiatric witnesses to mount the defense.
Page 40 of 43
Criminal Law – McAdams – Winter-Spring 2009
3. Those who are acquitted would be better served in a correctional
facility.
4. Despite the help of expert testimony, courts cannot make the
determinations necessary to apply insanity standards.
5. Efforts to apply insanity standards are time consuming, costly and too
often so confuse juries that improiper acquittals result.
g. Guilty But Mentally Ill Alternative:
i. Some jurisdictions give juries the option of this verdict, which rejects the
defense of insanity but finds that the D is “guilty but mentally ill.”
1. Verdict to be returned only if the jury finds that the D committed the
offense and was not legally insane, but was mentally ill at time of the
crime.
2. EFFECT  Sentenced under regular sentencing provisions, but to be
given whatever treatment is indicated.
3) INFANCY
a. COMMON LAW:
i. Under Age 7  Conclusively presumed unable to form a criminal intent and
therefore cannot be convicted of a crime.
ii. Ages 7-14  Rebuttable presumption that the child is incapable of forming
criminal intent.
1. HOW TO REBUT? Evidence of attempts to conceal commission of a
crime, to bribe witnesses, to accuse others.
iii. Ages 14+  Children are treated as adults and NO PRESUMPTION OF
incompetency.
b. Juvenile Courts  Often do not have to adjudicate based on the common law
presumptions because there is a material difference between DELINQUENCY and
CRIMINAL CULPABILITY!
4) ENVIRONMENTAL DEPRIVATION
ENTRAPMENT DEFENSE:
1) NOT CONSTITUTIONALLY PROTECTED  US v. Russell – Supreme Court has refused to require
that the states adopt the modern objective formulation of the defense as a matter of due
process.
a. HOWEVER – The SC has left open the possibility that law enforcement conduct related
to the commission of an offense may be so outrageous “that due process principles
would absolutely bar the government from invoking judicial processes to obtain a
conviction.”  but no such cases have been brought before the Supreme Court.
2) SUBSTANTIVE LIMITATIONS:
a. Applicable only to nonserious crimes
i. Cannot be claimed as a defense to crimes involving:
1. Serious injury to others
a. Rape
b. Murder
ii. MPC §2.13(3) – Entrapment not available if crime consists of causing or
threatening bodily injury to person other than person perpetrating entrapment.
b. Only law enforcement officers and agents can “entrap”
i. A defense is only available where entrapment was BY a law enforcement officer
or a person working in cooperation with law enforcement officers.
Page 41 of 43
Criminal Law – McAdams – Winter-Spring 2009
ii. Act of a purely private individual, although it might have induced someone to
commit a crime, will not support entrapment claim.
3) PROCEDURAL LIMITATIONS:
a. Defendant Cannot Deny Committing Crime:
i. Defendants in entrapment cases are prohibited in some jurisdictions from taking
inconsistent positions.
ii. Some courts even require that D affirmatively ADMIT GUILT OF THE CRIME!
4) ENTRAPMENT CRITERIA – “Subjective” versus “Objective” approaches
a. Jurisdictions are split on the criteria for determing whether facts show entrapment;
reflecting an underlying difference regarding conceptual basis for the defense.
b. Traditional (Subjective Standard:
i. ELEMENTS: Entrapment exists only if:
1. A law enforcement officer
2. Created the intent to commit the crime in the mind
3. Of a person who was not predisposed to commit crimes of this sort.
a. The critical question is often whether the accused was
predisposed to commit crimes of this sort!
b. Evidence that D responsed readily to the opportunity to commit
the crime and had previously committed similar offenses
indicates predisposition and negates the defense.
c. There must be proof that the D was predisposed before first
being approached by government agents!
d. What evidence?
i. Prior crimes
ii. Reputation.
iii. POLICY  doesn’t this just make the jury deliver a
verdict based on “character?”
ii. Depends on what subjectively stimulated the D to commit the crime – D’s
predisposition or officer’s inducement!
iii. RATIONALE  Assumption that the legislature did not intend to include within
the crime in question persons who were induced by the police into perpetrating
the offense! Consequently, an entrapped person is not guilty of criminal
conduct as that conduct was defined by legislature!
iv. Burden of Proof:
1. Accused must prove that he was induced by officers to commit the
crime.
2. Upon proof of inducement, prosecution must show beyond a
reasonable doubt that D was predisposed!
c. Modern (Objective) Standard:
i. RULE: This focuses less on the defendant’s subjective motivation for committing
the crime and more on the propriety of the officers’ conduct judged by an
objective standard.
ii. RATIONALE – Need to discourage police misconduct.
1. Not based on a perception of the entrapped defendant as “innocent” of
the crime, but rather on the need to deter government officials from
engaging in undesirable conduct.
Page 42 of 43
Criminal Law – McAdams – Winter-Spring 2009
iii. ELEMENTS: Courts are to find entrapment whenever the offense was committed
in response to law enforcement activity that was reasonably likely to cause a
reasonable person (not predisposed to commit crimes of the sort at issue) to
commit a crime!
1. The test here is objective!
2. Whether or not entrapment occurred depends solely on the conduct of
the law enforcement officers!
iv. The MPC has adopted this view!
1. §2.13(1)(b) – Entrapment exists if a law enforcement officer has
induced or encouraged the commission of the crime by “employing
persuasion or inducement which creates a substantial risk that the
offense will be committed by persons other than those who are ready
to commit it.”
v. Burden of proof on defendant!
Page 43 of 43