Criminal Law Outline
Greenawalt’s Characteristics of Punishment
 Performed by, and directed at, agents who are responsible in some sense
 Involves harmful or unpleasant consequences
 Unpleasant consequences are preceded by a judgment of condemnation
 Imposed by someone who has the authority to do so
 Imposed for a breach of an established rule of behavior
 Imposed upon an actual or supposed violation of this rule of behavior
Retributivism – backward-looking, finds justification for punishment in the past; grounded in notions of
moral decency, based on the harm and culpability (greater harm and intentional decision-making =
greater punishment)
Utilitarianism – forward-looking, looks for the future benefits that will derive from punishing a person
 Deterrence
 Incapacitation
 Rehabilitation
Punishment itself is an evil according to utilitarian, because it deliberately inflicts harm on a human
being; therefore we should punish criminal only if some “good” is achieved by this act
Theories of Punishment
Incapacitation (restraint) – while imprisoned, a criminal has fewer opportunities to commit acts
causing harm to society
Special Deterrence – punishment may deter the criminal from committing future crimes
General Deterrence – punishment may deters others from committing similar crimes
Retribution – punishment imposed to vent society’s sense of outrage and need for revenge
Rehabilitation – imprisonment provides the opportunity to mold or reform the criminal into a person
who, upon return to society, will conform her behavior to societal norms
Education – the publicity attending the trial, conviction, and punishment of some criminals serves to
educate the public to distinguish good and bad conduct and to develop respect for the law.
Proportionality (Ewing v. California)
8th Amendment only prohibits extremely disproportionate sentences (i.e. Three strikes is fine as long as
you justify it with policy – states can do whatever policy they want)
Process and Prohibitions
Criminal Process
 Begins when the legislature criminalizes something in the statute
 Report, detection of, or suspicion that a crime has occurred
 Investigation
 Arrest
 Bail determination
 Charging decision (indictment by grand jury, or information (complaint in minor cases)
 Preliminary hearing – judge determines if there’s enough probable cause to proceed
 Discovery
 Motions (suppression, dismissal)
 Trial
 Sentencing
Jury Nullification
Double Jeopardy clause – no person shall … be subject for the same offense to be twice put in jeopardy
Jury may shield someone forever for some conduct – state cannot appeal, and defendant cannot be
retried
 Defendant admits charge (i.e. civil disobedience and jury acquits anyway)
 Jury can nullify in favor of the government, but judge can still order acquittal and the defendant
still has access to appeals
Legality
No crime without law, no punishment without law
Statutory claims/vagueness
 Legislative intent is to be ascertained by appropriate means and indicia, such as the purposes
appearing from the statute taken as a whole, the phraseology, the words (ordinary or technical),
the law as it prevailed before the statute, the mischief to be remedied, the remedy, the ends to be
accomplished, statutes in pari material, the preamble, the title and other like means
 A criminal statute must be sufficiently definite to give notice of the required conduct to one who
would avoid its penalties, and to guide the judge in its application and the lawyer in defending (In
Re Banks, N.C. 1978)
Lenity/Strict construction – if after all attempts, the statute is still vague, and we have two equally
plausible interpretations, we should decide for the defendant and against the government
Muscarello v. United States
 Issue: does the phrase “carries a firearm” refer only to the carrying of firearms on the person
 Rule: 18 USC Sect. 924 (c)(1): 5-year mandatory prison sentence for anyone who “uses or carries
a firearm during and in relation to a drug trafficking crime”
 Decision: SCOTUS ruled that “carry” is not limited to being on a person; can be located in the car
also. Dissent: says there was sufficient ambiguity and so supposed to use the lenity principle and
the defendant is supposed to get favor
Legality/no judicial crime creation
Keeler v. Superior Court, Cal. 1970 – Attacked pregnant woman, killed fetus.
 Issue: is an unborn but viable fetus considered to be a “human being” within CA statute defining
murder?
 Rule: Penal code section 187 states that “murder is the unlawful killing of a human being, with
malice aforethought”
 Decision: No – legislature did not intend a meaning and construing statute to contrary would
exceed judicial review and violate due process
Constitutional Limitations on Crime Creation
 No Ex Post Facto Laws, which operate retroactively to:
o Make criminal an act that when done was not criminal
o Aggravate a crime or increase the punishment therefore
o Change the rules of evidence to the detriment of criminal defendants as a class; or
o Alter the law of criminal procedure to deprive criminal defendants of a substantive right
 No Bills of Attainder, which are legislative acts that inflict punishment or denies a privilege
without a judicial trial
Effect of Repeal – At common law, in the absence of a savings provision, the repeal or invalidation of a
statute operates to bar prosecution for earlier violations, providing the prosecution is not yet underway
at the time of repeal; repeal will not operate to set free a person who has been prosecuted and whose
conviction is res judicata.
Elements of a Crime
1. Actus Reus (Guilty act): a physical act or omission by the defendant;
2. Mens Rea (Guilty mind): the state of mind or intent of the defendant at the time of his act
3. Concurrence: the physical act and the mental state existed at the same time; and
4. Harmful Result and Causation: a harmful result caused (both factually and proximately)
Actus Reus
Without an act, there is no crime
Common Law
The defendant must have either performed a
voluntary physical act (bodily movement) or
failed to act under circumstances imposing a
legal duty to act.
- A thought is not an act
- Speech, however, is an act that can result
in criminal liability
Voluntariness – The act must be a conscious
exercise of the will
- As long as there is at least ONE voluntary act
in the defendant’s course of conduct, he may be
criminally responsible (i.e. driving w/epilepsy)
Involuntary Acts:
1) Conduct that is not the product of the
actor’s determination
2) Reflexive or convulsive acts
3) Acts performed while the defendant was
either unconscious or asleep unless the
defendant knew they might become
engaged in the dangerous behavior
Omissions
A legal duty to act can arise from:
- Statute (i.e. reporting an accident)
- Contract (lifeguard, nurse)
- Relationship between defendant and victim
(parent/child, spouse)
- Voluntary assumption of care
- The creation of peril by defendant
- Duty to control the conduct of another (i.e.
employee)
- Landowner
Duty arises when defendant is aware of the
MPC
MPC also requires a voluntary act, or an omission
where there is a legal duty
§ 2.01 Requirement of Voluntary Act; Omission
as Basis of Liability; Possession as an Act,
pp.947
(1) A person is not guilty of an offense unless
his liability is based on conduct, which
includes a voluntary act or omission to
perform an act of which he is physically
capable.
Acts which are not voluntary include: (a) reflex or
convulsion; (b) bodily movement during
unconsciousness or sleep; (c) conduct during
hypnosis; (d) bodily movement that otherwise is
not the product of the effort or determination of
the actor, either conscious or habitual.
Omissions, §2.01(3)(a)-(b)
Omission satisfies Actus Reus:
1) When statute defining the offense expressly
states that failure to act is a crime; or
2) Defendant has a duty to act imposed by civil
law.
facts creating the duty to act, and it must be
reasonably possible for defendant to perform
the duty or obtain the help of others in
performing it.
Possession - Is an act is defendant has control
of the object long enough to have an
opportunity to terminate his possession, but he
need not be aware of its illegality or true nature
Possession – A person’s possession is sufficient
for criminal responsibility if, after becoming
aware of an illegal possession, he does not
terminate within a sufficient period
- Criminal liability for an omission only attaches when there’s a legal duty
Martin v. State (1944) - Officers arrested at home drunk and took him to highway where he was charged
with public intoxication
 All elements of Alabama Code were proven and present HOWEVER
 Also says “a voluntary appearance is presupposed” → court makes a decision between a voluntary
and involuntary appearance
State v. Utter (1971) – Father and son got hammered, dad stabs the son, says it’s a conditioned response
from the military
 Takeaway: volition is required to establish Actus Reus
 Act involves an exercise of the will
 A spasm is not an act (even though in this case, voluntarily induced unconsciousness, such as by
drugs or alcohol, is not a complete defense.
People v. Beardsley (1907) (Mistress took too much morphine)
 Issue: Is ∆ responsible for Blanche’s death by omission?
 Elements:
o 1. ∆ under legal duty to Blanche
o 2. Knowing her to be in peril of her life, which would require him to make an effort to save
her; and
o 3. Omission to perform the duty thereby making him responsible for her death
 Application: ∆ had no legal duty to Blanche
Mens Rea
Intent and Willful Blindness
General Intent – there’s no mental state set out in the statute; assumption is you just need a morally
blameworthy or guilty mind
Specific Intent
 Delaware: there is a specific mental state set out in the statute (statute specificity)
 Arizona: specific intent means purposely or knowingly, and general intent is the lower mental
states (higher/lower levels)
 New Jersey: specific intent is a mental state requirement over and above the mental state
required of the Actus reus, and general intent is the baseline intent of the Actus reus (i.e. simple
possession is general intent, and possession with intent to distribute is specific intent) (more
required)

Major Specific Intent Crimes: Solicitation (intent to have the person solicited commit the crime),
attempt (intent to complete the crime), Conspiracy (intent to have the crime completed), Firstdegree murder (premeditated intent to kill), Assault (intent to commit a battery), Larceny and
Robbery (intent to permanently deprive another of his interest in the property taken, Burglary
(intent at the time of entry to commit a felony in the dwelling of another)
Transferred Intent – when a defendant intends to harm one, and accidentally harms another, the intent
is transferred to the victim
 Act must be completed for intent to transfer; can’t have transferred intent for attempt
 Intent does not transfer from crime to crime, only person to person
Motive – the reason or explanation underlying the offense is generally immaterial to the substantive
criminal act; distinct from the intent to commit a crime
Common Law
“Intent” under the common law includes MPC’s
Purposely and Recklessly
- Includes acts the actor wanted to occur, and acts
the actor knew were substantially certain to occur
(but didn’t necessarily want)
MPC
§ 2.02 General Requirements of Culpability,
pp.947
(3) When the culpability sufficient to establish a
material element of an offense is not prescribed
by law, such element is established if the person
acts purposely, knowingly, or recklessly.
- Under MPC, a higher level of culpability, if
proven, can substitute for any lower level
MPC 2.02(2), pp947
Purposely. A person acts purposely with respect to a material element of an offense when:
(i)
If the element involves the nature of his conduct or a result thereof, it is his conscious object to
engage in the conduct of that nature or to cause such a result; and
(ii)
If the element involves the attendant circumstances, he is aware of the existence of such
circumstances or he believes or hopes that they exist.
Knowingly. A person acts knowingly with respect to a material element of the offense when:
(i)
If the element involves the nature of his conduct or the attendant circumstances, he is aware
that his conduct is of that nature or that such circumstances exist; and
(ii)
If the element involves a result of his conduct, he is aware that it is practically certain that his
conduct will cause such a result.
Recklessly. A person acts recklessly with respect to a material element of an offense when he should be
aware of a substantial and unjustifiable risk that the material element exists or will result from his
conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the
actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the
standard of conduct that a law-abiding person would observe in the actor’s situation. (Need conscious
awareness)
Negligently. A person acts negligently with respect to a material element of the offense when he should
be aware of a substantial risk that the material element exists or will result from his conduct. The risk
must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and
purpose of his conduct and the circumstances known to him, involves a gross deviation from the
standard of care that a reasonable person would observe in the actor’s situation.
People v. Conley
 Issue: ∆ says he did not have the required “intent” required in the statute when he hit boy in head
– statue - “intentionally or knowingly causes great bodily harm, or permanent disability or
disfigurement commits aggravated battery.”
o 4-4 Intent: when his conscious objective or purpose is to accomplish that result or engage in
that conduct
o 4-5 Knowledge: when he is consciously aware that such result is practically certain to be caused
by his conduct
 Ruling: Intent can be inferred from the surrounding circumstances, the offender’s words, the
weapon used and the force of the blow. Jury conviction affirmed.
Willful Blindness
Common Law
The establishment of knowledge is allowed under
willful blindness
- Some courts
MPC
§ 2.02(7) Requirement of Knowledge
Satisfied by Knowledge of High Probability,
pp.948
When knowledge of the existence of a particular
fact is an element of an offense, such knowledge
is established if a person is aware of a high
probability of its existence, unless he actually
believes that it does not exist.
- “Deliberate ignorance” and “positive knowledge” are equally culpable (U.S. v. Jewell- Did not “know” the
car he was asked to drive by a stranger into the US contained 110 lbs of marijuana).
Strict Liability
A strict liability offense does not require awareness of all the factors constituting a crime. The major
significance is that certain defenses, such as mistake of fact, are not available because there is no mens
rea for them to negate
Common Law
MPC
Public welfare offenses
§ 2.05 Rejects strict liability for crimes,
- Regulate dangerous of deleterious devices or
pp.950
products, obnoxious waste materials
- If a criminal statute imposes strict
- Heighten the duties of those in control of particular
liability, it is transformed from a crime to
industries, trades, properties or activities that affect
a violation (no legal disability or jail,
public health, safety or welfare
only fines)
- Depend on no mental element, but consist only of
- If you can prove a mens rea, an absolute
forbidden acts or omissions
liability offense can become a crime
- Typically carry minor penalties
- Malum Prohibitum – conduct is only wrong because
the legislature says it’s wrong (vs. Malum in se
crimes, which should obviously be wrong to the
individual)
Statutory rape and similar offenses (where the
element not requiring mens rea will be an attendant
circumstance)
Public Welfare Offense
Staples v. United States
 Facts: Police executing a search warrant and found an automatic weapon (A-15) in Staples’ home
that had been modified to be capable of automatic fire, rather than the semiautomatic fire which it
had been intended to be -- When tested, weapon performed as an automatic weapon.
 SCOTUS held that it was unthinkable that Congress intended to subject law-abiding, wellintentioned citizens to a possible term of imprisonment if what they genuinely and reasonably
believed was a conventional semi-automatic weapon turns out to have worn down into or been
secretly modified to be a fully automatic weapon. Mens Rea required.
Statutory Rape and Similar Offenses
State v. Nations (Hired 17 year old dancing girl)
 Court employed statutory interpretation to conclude that the legislature intentionally left of
2.02(7) because they wanted to reject the willful blindness provision. State had to show ∆ was
actually aware the girl was under 17.
Mistake of Fact
Common Law
General Intent Offenses
- Perkins rule: if no specific intent or other
special mental element is required for guilty
of the offense charged, a mistake of fact will
not be recognized as an excuse unless it was
based upon reasonable grounds
- Blameworthiness is the standard for intent,
and a reasonable mistake is not
blameworthy – only an unreasonable
mistake is sufficiently blameworthy to prove
general intent
Exceptions:
- Moral Wrong Doctrine – even if mistake of
fact was reasonable, may defeat mistake
defense (i.e. act was still morally wrong)
- Legal Wrong Doctrine – If mistake of fact
was still a legal wrong, defendant may be
convicted of the more serious offense that his
conduct establishes (i.e. act, regardless of
mistake, was still illegal)
Specific Intent Offenses
- A reasonable mistake of fact, or an
unreasonable mistake of fact, so long as it is
genuine, if it negates the special mental
element of the offense, allows a mistake of
fact defense (People v. Navarro).
MPC
Since MPC is obsessed with mens rea, proving
mistake of fact make you likely to get off.
§ 2.04 Ignorance or Mistake (pp.950)
(1) Ignorance or mistake as to a matter of fact or
law is a defense if:
(a) The ignorance or mistake negatives the
purpose, knowledge, belief, recklessness or
negligence required to established a material
element of the offense; or
(b) The law provides that the state of mind
established by such ignorance or mistake
constitutes a defense.
(2) Although ignorance or mistake would
otherwise afford a defense to the offense charged,
the defense is not available if the defendant would
be guilty of another offense had the situation been
as he supposed. (Ignorance or mistake mitigates
to the alternate offense)
Strict Liability Crimes
- Without a mens rea req., there is nothing (no
mental element) that a mistake of fact can negate.
Mistake of Fact Flowchart (Common Law)
- Is the offense general intent, specific intent or strict liability?
o If specific intent, does the mistake relate to the specific intent element?
 If YES, determine whether the mistake negates the specific intent elements (if so,
not guilty)
 If NO, treat the offense as a general intent offense
o If general intent, do culpability analysis:
 Did the defendant act in a morally blameworthy way?
 IF mistake was unreasonable, defendant is morally blameworthy (and
therefore culpable)
 IF mistake was reasonable, defendant is not morally blameworthy (and
therefore, is not culpable, UNLESS
o Moral wrong doctrine applies, OR
o Legal wrong doctrine applies
o If strict liability, mistake is NOT a defense
People v. Navarro
 Mistake of Fact, specific intent crime.
 Navarro charged with stealing 4 wooden beams from construction site, believed it had been
abandoned.
 Court applied Perkins Rule: If no specific intent, reasonable mistake is a defense so since the ∆ in
good faith believed he had the right to take the beams, the judgment was reversed.
Mistake of Law
Common Law
Mistake or ignorance of the law is no excuse (People
v. Marrero, N.Y. 1987)
Exceptions:
- When your mistake of law negates the mens
rea element
- “Same law” mistake – generally not a
defense b/c most offenses do not have a
mens rea element req. ∆ to know he is
violating law.
Specific Intent
- “Different law” mistake – can be a defense
only for specific intent crimes.
General Intent + Specific Intent
- Reasonable reliance – relying on a
reasonable statement of law from a
responsible public official charged with
interpretation or enforcement of the law
- Fair notice (Lambert v. California, 1957) –
only applies to passive conduct, not overt
acts
MPC
Negation of mens rea
§ 2.02(9) Culpability as to Illegality of Conduct, pp.
949
Neither knowledge nor recklessness or negligence as
to whether conduct constitutes an offense or as to the
existence, meaning or application of the law
determining the elements of an offense, is an element
of such offense, unless the definition of the offense so
provides.
See also § 2.04(1) (Mistake of fact, above)
- Only if it negates Mens Rea.
§ 2.04(3), pp. 950 A belief that conduct does not
legally constitute an offense is a defense to a
prosecution for that offense based upon such conduct
when:
Fair Notice
(a) the statute or other enactment defining the
offense is not known to the actor and has not been
published or otherwise reasonably made available
prior to the conduct alleged; or
Reasonable Reliance
(b) He acts in reasonable reliance upon an official
statement of the law, afterward determined to be
invalid or erroneous, contained in (i) a statute or
other enactment, (ii) a judicial decision, opinion or
judgment; (iii) an administrative order or grant of
permission; or (iv) an official interpretation of the
public officer or body charged by law with
responsibility for the interpretation, administration
or enforcement of the law defining the offense.
Defense under § 2.04(3) must be proven by
preponderance of the evidence
Lambert v. California (1957)
 Fair Notice defense
 Act punishes an omission of a duty to register due to status (not conduct)
 Says this is a violation of due process because registration was based on status rather than
conduct so in this case, without fair notice, mistake of law is an excuse.
People v. Marrero
 ∆ was arrested for unlicensed possession of a loaded pistol in violation of a provision of a statute
that made such possession a crime but which also exempted “peace officers”. ∆ contended that he
had reasonably believed that the statutory exemption applied to him given the fact that he was a
Federal Corrections Officer.
 Conviction affirmed. Mistake of law is not a valid defense unless the mistaken belief is based on an
official statement of the law.
Causation
Actual Cause (cause-in-fact)
2 types:
1. “But for” causation: prohibited result would not have happened, when it did, in the absence of
actor’s conduct
2. Substantial factor causation: two or more independent actors commit separate acts, each of
which is sufficient to bring about the prohibited act
Proximate Cause (legal causation)
 Involves intervening but-for occurrence after actor’s conduct and prior to prohibited result
 Superseding intervening cause: cause that gets the initial actor off the hook for the offense
committed due to a proximate cause
 Typically a policy-laden decision, so is “mushy”
MPC on Causation (2.03), pp. 949
“But-for” causation; however, have carve outs in 2.03(2) and 2.03(3)
§ 2.03 Causal Relationship Between Conduct and Result; Divergence Between Result Designed or
Contemplated and Actual Result or Between Probable and Actual Result
(1) Conduct is the cause of a result when:
(a) it is an antecedent but for which the result in question would not have occurred; and
(b) the relationship between the conduct and the result satisfies any additional causal
requirements imposed by the Code or by the law defining the offense
(2) When purposely or knowingly causing a particular result is an element of an offense, the element is
not established if the actual result is not within the purpose or the contemplation of the actor
unless:
(a) the actual result differs from that designed or contemplated, as the case may be, only in
respect that a different person or different property is injured or affected or that the injury or harm
designed or contemplated would have been more serious or more extensive that that caused; or
(b) the actual result involves the same kind of injury or harm as that designed or contemplated
and is not too remote or accidental in its occurrence to have a just hearing on the actor’s liability or on
the gravity of the offense.
(3) When recklessly or negligently causing a particular result is an element of the offense, the element
is not established if the actual result is not within the risk of which the actor is aware or, in the case
of negligence, of which he should be aware, unless:
(a) the actual result differs from the probable result only in the respect that a different person or
different property is injured or affected or that the probable injury or harm would have been more
serious or more extensive than that caused; or
(b) the actual result involves the same kind of injury or harm as the probable result and is not
too remote or accidental in its occurrence to have a just bearing on the actor’s liability or on the gravity of
the offense
(4) When causing a particular result is a material element of an offense for which absolute liability is
imposed by law, the element is not established unless the actual result is a probable consequence
of the actor’s conduct.
Homicide
Hierarchy
Common Law
First-Degree Murder
- Premeditated and deliberate
Second-Degree Murder
- Malice aforethought, or extreme recklessness
(“depraved heart”)
Voluntary Manslaughter
- Heat of passion/provocation
Involuntary Manslaughter
- Criminal negligence, “regular” recklessness
MPC
Murder
- Purposely or knowingly, OR recklessly
under circumstances representing an
extreme indifference to the value of
human life
Manslaughter
- Recklessly or murder under extreme
mental/emotional distress
Negligent Homicide
- Homicide committed negligently
Pre-meditation
Deliberation-Premeditation Formula (needed for 1st degree Murder)
State v. Schrader (W.Va. 1995)
 Willful, deliberate, and premeditated murder can be accomplished very quickly (blink of an eye)
→ need only exist for an instant; only necessary that the intention to kill should come into
existence at the time of such killing
 “Twinkling of an eye” – no appreciable time period required between pre-meditation and murder.
State v. Guthrie (W.Va. 1995)
 Was being teased, took out knife and stabbed co-worker in neck
 Any interval of time between the forming of the intent to kill and the execution of that intent,
which is of sufficient duration for the accused to be fully conscious of what he intended, is
sufficient to support a conviction for first-degree murder.
People v. Morrin (Mich.App. 1971)
 The interval of time between formation of intent and the actual killing, to the Morrin standard
requiring the time be long enough to subject your response to a “second look”
 Premeditation and deliberation (measure and evaluate major facets of choice) is a process
undisturbed by hot blood
Midgett v. State (Ark. 1987)
 Repeated abuse of 8 year old son over time. 4 blows to child, malnourished. Convicted of 1st
Degree murder.
 Lack of intent to kill, just abuse, so modified conviction from 1st to 2nd degree murder.
State v. Forrest
 Killed very sick father in hospital, admitted to officials he killed.
 Among the factors to be considered in determining whether a killing was with premeditation
and deliberation are:
o Want of provocation on the part of the deceased
o The conduct and statements of the defendant before and after the killing
o Threats and declarations of the defendant before and during the course of the occurrence
giving rise to the death of the deceased
o Ill-will or previous difficulty between the parties
o The dealing of lethal blows after the deceased had been felled and rendered helpless
o Evidence that the killing was done in a brutal manner
 Direct evidence: evidence that directly proves a fact
o Ex: friend tells you it’s raining outside and you believe them. Her statement is direct
evidence that it is raining outside
 Circumstantial evidence: a chain of circumstances which indirectly proves a fact
o Ex: Friend comes in with a drenched raincoat and is shaking water from umbrella and you
infer it is raining outside
 DIRECT EVIDENCE CARRIES NO MORE WEIGHT THAN CIRCUMSTANCIAL EVIDENCE
Ways to get first-degree murder:
 Prove premeditation & deliberation
 When a murder is committed in the course of committing certain enumerated felonies
o Would have been second-degree murder without felony BUT will ramp it up since that
murder was committed during a felony
o Examples: arson, rape, robbery, burglary
Voluntary Killings
Between intentional and unintentional homicide, assume an intentional killing will be murder
Common Law
First-degree murder
Premeditated and deliberate
Lying in wait, poisoning, killing someone in the process
of committing another felony (felony murder), specific
offense triggers (arson, rape, robbery or burglary)
Second-degree murder
Plain old, classic murder is almost always classified as
second-degree murder
Malice Aforethought
- Intent to kill (purposely or knowingly)
- Intent to cause serious bodily harm (purposely or
knowingly)
- Depraved heart murder (an unintentional killing)
- Intent to commit a felony (felony murder doctrine)
Voluntary Manslaughter
An intentional homicide, done in the heat of passion,
caused by adequate provocation, before there has been
reasonable opportunity for the passion to cool
Rule of Provocation
- There must have been adequate provocation
- The killing must have been in the heat of passion
- It must be a sudden heat of passion – the killing must
have followed the provocation before there has been a
reasonable opportunity for the passion to cool
- Must be a causal connection between the provocation,
the passion and the fatal act
Traditional Categories of Adequate Provocation
- Discovering one’s spouse in the act of sexual
intercourse with another
- Mutual combat
- Extreme assault and battery upon the defendant
- Resisting an illegal arrest
- Injury or grievous abuse of a close relation (child,
spouse)
- Sudden discovery of a spouse’s adultery
Movement in the law is away from traditional categories
of provocation, and toward leaving it to the jury under a
“reasonable man” standard
Words, no matter how abusive or taunting, do not
constitute adequate provocation for mitigation of
MPC
§ 210.1 Criminal Homicide, pp. 979
(1) A person is guilty of criminal homicide is he
purposely, knowingly, recklessly or negligently
causes the death of another human being.
(2) Criminal homicide is murder, manslaughter, or
negligent homicide.
§ 210.2 Murder, pp. 979
(1) Criminal homicide constitutes murder when:
(a) It is committed purposely or knowingly; or
(b) It is committed recklessly under circumstances
manifesting extreme indifference to the value of
human life. Such recklessness and indifference are
presumed if the actor is engaged or is an
accomplice in the commission of, or attempt to
commit, or flight after committing or attempting
to commit robbery, rape or deviate sexual
intercourse by force or threat of force, arson,
burglary, kidnapping or felonious escape.
§ 210.3 Manslaughter, pp. 979
(1) Criminal homicide constitutes manslaughter
when:
(a) It is committed recklessly; or
(b) A homicide which would otherwise be murder
is committed under the influence of extreme
mental or emotional disturbance for which there
is reasonable explanation or excuse. The
reasonableness of such explanation or excuse
shall be determined from the viewpoint of a
person in the actor’s situation under the
circumstances, as he believes them to be.
Words alone are sufficient provocation under the
MPC to get a jury instruction for manslaughter
murder to manslaughter
- Exception: informational words accompanied by
conduct indicating a present intention and ability to
cause the defendant bodily harm
Girouard v. State
 Stabbed wife after she was taunting him and being horrible.
 Words alone not adequate provocation for “heat of passion” required by the “Rule of Provocation”
and “adequate provocation” required for voluntary manslaughter.
 Key related point: When determining whether rule of provocation applies, will jury be instructed
to convict of voluntary manslaughter or just second-degree murder? Jury instruction is vital on
both sides to help prove or disprove provocation
Key differences between MPC and Common Law:
MPC
 Words are enough to get provocation defense;
 Victim does not have to be the one to provoke ∆ (can kill innocent bystander);
 ∆ could have been mistaken about provocative conduct;
 Doesn’t have to be sudden provocation (can be build-up)
Common law:
 Person doing provoking must be victim of crime;
 Must be right about provocative conduct
Involuntary Killings
Common Law
Depraved Heart Murder (Second-Degree Murder)
Express malice – deliberate intention unlawfully to
kill (or cause grievous bodily injury)
Implied malice – killing with abandoned and
malignant heart, or in the absence of provocation
Depraved heart murder, in the end, has nothing to do
with good or evil – just conscious disregard of a risk
representing an extreme indifference to the value
of human life (aka extreme recklessness)
- Even a small risk of death can be depraved
heart murder if there is no justification for the
risk
If you have justification, it can show that you’re not
indifferent to human life.
However, even a small risk can be depraved heart if
there’s no justification. (Surgery with 5% chance of
survival vs. Russian Roulette)
Involuntary Manslaughter
Criminally negligent or reckless acts leading to death
- Criminal/Gross Negligence – so gross that a jury
would find punishment appropriate, in addition to
damages in the civil context of negligence – but not
MPC
§ 210.2 Murder, pp. 979
(1) Criminal homicide constitutes murder when:
(b) It is committed recklessly under circumstances
manifesting extreme indifference to the value of
human life. Such recklessness and indifference are
presumed if the actor is engaged or is an
accomplice in the commission of, or attempt to
commit, or flight after committing or attempting
to commit robbery, rape or deviate sexual
intercourse by force or threat of force, arson,
burglary, kidnapping or felonious escape.
§ 210.3 Manslaughter, pp. 979
(1) Criminal homicide constitutes manslaughter
when:
(a) it is committed recklessly; or
(b) a homicide which would otherwise be murder
is committed under the influence of extreme
mental or emotional disturbance for which there
is reasonable explanation or excuse. The
reasonableness of such explanation or excuse
shall be determined from the viewpoint of a
person in the actor’s situation under the
Extreme Recklessness b/c that would be Depraved
Heart Murder
circumstances, as he believes them to be.
Words alone are sufficient provocation under the
MPC to get a jury instruction for manslaughter
§ 210.4 Negligent Homicide, pp. 979
(1) Criminal homicide constitutes negligent
homicide when it is committed negligently.
- Criminal/Gross Negligence – so gross that a
jury would find punishment appropriate, in
addition to damages in the civil context of
negligence. But not EXTREME recklessness.
People v. Moore
 ∆ was high and driving through Pasedena at 75mph – killed a person.
 2nd degree murder
People v. Knoller
 Malice is implied when no considerable provocation occurs, or when the circumstances attending
the killing show an abandoned and malignant heart. Requires a ∆’s awareness of the risk of death
– and conscious disregard for human life.
Felony Murder
Common Law
All murder committed in the
perpetration of, or attempt to perpetrate
a felony (or enumerated felonious acts),
is murder of the second-degree
- By charging felony murder, you
don’t have to prove mens rea
with regard to the killing (just
intent to commit the felony)
- You MUST be guilty of the
underlying felony
Can be made first-degree murder by
statute (explanations below)
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MPC
MPC rejects the felony murder rule, but
it still exists in the common law or by
statutory enaction
§210.2(1)(b), pp. 979 – robbery, rape,
deviate sexual intercourse (by force or
threat of force), arson, burglary,
kidnapping, or felonious escape.
Deterrence as a rationale for the felony murder rule – want to deter unintentional killings, not the
associated crimes in and of themselves
Usually no reason for a felony-murder because can usually always prove extreme recklessness for
2nd Degree murder or manslaughter. It is used to get a higher crime.
Statutory Felony-Murder: Usually 1st degree; often, statute is worded that a “murder”
committed during a felony is a statutory first-degree murder [rather than saying a “killing”→ here,
prosecutor, needs to prove the mens rea requirement anyway to get murder but felony-murder
rule bumps it up to a 1st degree murder
Second degree (Common Law) Felony-Murder: 2nd degree made by judges; circumstance that
allows for murder where prosecutor not required to prove mens rea [killing + felony = murder]
Courts construe felony-murder rule as narrowly as possible & strictly apply all limitations
Limitations on the Felony Murder Rule
1. Inherently dangerous felony
People v. Howard
 Howard charged with murder and evading a police officer in willful disregard for safety of persons
and properties
 2nd degree felony-murder rule: if killing occurred during commission of an inherently dangerous
felony, prosecutor doesn’t need to prove malice Court-made rule [common law construct]
based on theory that designation of inherently dangerous conduct as felonious puts ∆ on notice
for conviction of murder
 Courts construe this as narrowly as humanly possible & strictly apply limitations
 Key: In looking at the felony in the abstract, asking whether by its very nature, the crime
cannot be committed without creating a substantial risk that someone will be kille
o Includes: shooting at inhabited home, poisoning with intent to injure, arson of car,
manufacturing meth, kidnapping, etc.
o Doesn’t include: false imprisonment, possession of firearm by felon, practicing medicine
without license, conspiracy to possess meth, extortion, child abuse
 If statute can be violated by nonthreatening conduct and is still a felony, it is NOT
inherently dangerous, so can’t include in felony-murder rule.
2. Independent Felony (Merger)
People v. Smith
Held: Instruction to jury for felony-murder rule is NOT proper when predicate felony is an integral part
of the homicide and is included in fact within the defense charge.
 If the triggering charge is an assault, you can’t use the underlying assaultive conduct to get felony
murder – underlying felony is unquestionably an integral part and included in the face of the
homicide.
 If there is a separate purpose over and above the assaultive conduct, the merger bar to the felony
murder rule doesn’t apply.
o E.g. Assault with deadly weapon and person killed accidentally during this assault; can’t use
assault with deadly weapon as the felony hook BUT if you have assault with a deadly
weapon with robbery (and use assault to steal whatever), then you can use that assault as
the felony for the felony-murder rule
3. In the Perpetration/Furtherance of Felony Limitation
State v. Sophophone
 Breakdown of 2 major approaches to the doctrine related to a lawful killing by a 3rd party in the
felony-murder context
o Agency approach [majority rule]-can’t have complicity with a non-felon who causes death
o Derivative doctrine – deriving guilt from somebody else but if you’re dealing with
innocent person, no guilt to derive.
o Proximate causation approach – allows assigning guilt to a felon if felon set acts in
motion that resulted in the victim’s killing.
“Misdemeanor-murder” [like a baby felony-murder]- involuntary manslaughter charge rather than a
1st/2nd degree murder charge
Res Gestae doctrine - Even if the felony is over, felony murder can be charged if death occurred in
escape and it’s one continuous sequence of events (Foller v. State, State v. Sophophone).
Capital Punishment
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Public opinion divided regarding death penalty.
¾ of states & federal government have the death penalty
SCOTUS abolished death penalty for rape on proportionality grounds, also for people under
Constitutional challenges to death penalty methods - rest on 1 of 2 arguments:
o Under 8th amendment whether method exacts unnecessary amount of pain [becomes cruel
and unusual punishment]
o “Evolving standards of decency” – comes out of 8th amendment, says when 8th
amendment ratified, this method of execution was ok but now our standards have evolved
[show number of states that have moved away from that method]
Death sentence typically determined [Grey v. Georgia] – after guilty verdict, sentencing phase
begins
Jury decides whether aggravating factors (statute) - unless jury finds one of these, cannot impose
death penalty.
Jury usually given discretion to NOT use death penalty if they find a mitigating factor (also set out
in statute; ex: abusive childhood, limited mental capacity, etc.). In most states if jury gives death,
judge must impose – some have discretion.
Theft
Common Law
Larceny
Conduct (not result) crime à offense complete when
acts occur
Trespassory taking and carrying away of personal
property from another with intent to steal
Elements:
Trespassory
- Mere custody vs. rightful possession
- Possession: sufficient control over item to use
it in a reasonable unrestricted manner
- Actual: physical control
- Constructive: not in physical control but no
one else has access
- Custody: physical control over it, but right to
use is substantially restricted by the person in
constructive possession
Taking and carrying away (asportation)
- Slight carrying away satisfies this element
(moving even a “hair’s breadth”). Ex: shoplifter
doesn’t need to leave the store
- Personal property
- At common law, one cannot steal real
property, only tangible personal property, of
Another, With Intent to Steal (mens rea
requirement)
- Specific intent requirement
MPC pp 990-93
MPC: 223.2(1) THEFT (pp. 993)
1) A person is guilty of theft if he unlawfully
takes or exercises unlawful control over
moveable property of another with purpose to
deprive him thereof. (similar to larceny but not
trespassory definition)
MPC: 221.1 Burglary (pp. 990)
1) A person is guilty of burglary if he enters a
building or occupied structure or separately
secured or occupied portion thereof with
purpose to commit a crim therein, unless the
premises are then open to the public or the
actor is licensed or privileged to enter.
a) Affirmative defense to burglary if the
building or structure is abandoned
b) Felony in the 3rd degree unless perpetrated
at night, with purpose/know/reck to inflict
harm, or armed with explosives or deadly
weapon (then 2nddegree)
MPC: 222.1 Robbery (pp. 991).
1) A person is guilty of robbery if, in the course
of committing a theft he:
a) Inflicts serious bodily injury upon another
OR
b) Threatens another with or purposefully puts
him in fear of immediate SBI OR
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If person genuinely believes that item belongs
to them/they have some other legal right to
property, person is not guilty of larceny (Claim
of right doctrine).
If wrongdoer intends to take property for long
enough that rightful owner is deprived of the
property’s benefit of enjoyment for the majority
of the good’s lifetime, also larceny
Robbery
Larceny by means of violence or intimidation.
c) Commits or threatens immediately to commit
any felony of the first or second degree.
- “in the course of committing a theft
means” something that occurs in the
attempt to commit theft or in flight after
the attempt or commission.
- 2nd degree felony unless in the course of
committing the theft the actor attempts
to kill anyone or purposefully inflicts or
attempts to inflict SBI, where it is a
felony in the 1st degree.
Embezzlement
Unlawful conversion of property in a non-trespassory
manner
- Typically a breach of trust
False Pretenses
Obtaining possession and title to property by false
representation or fraud - Actually getting what’s theirs,
not stealing it in terms of larceny, BUT there is a fraud
committed AND possessor of the property must fall for
this fraud.
Rape
Common Law
Blackstone – the carnal knowledge of a woman forcibly
and against her will
Actus Reus
- Intercourse
- Force, either actual or constructive
- Non-consent and/or against the will of the victim
Modern legislative trend is to use the phrase “forcible
compulsion” - combining force and consent elements
into a single phrase.
Mens Rea
- General intent crime → only need some sort of moral
culpability with regard to question of whether
intercourse was against victim’s will
- Some require recklessness with regard to consent
- Some require negligence with regard to consent
- Some have strict liability approach → don’t care what
you thought with regard to consent as long as she did not
consent
MPC pp. 985
§ 213.1 Rape and Related Offenses
(1) Rape. A male who has sexual intercourse
with a female not his wife is guilty of rape if:
(a) He compels her to submit by force or by
threat of imminent death, serious bodily
injury, extreme pain or kidnapping, to be
inflicted on anyone; or
(b) He has substantially impaired her power to
appraise or control her conduct by
administering or employing without her
knowledge drugs, intoxicants or other means
for the purpose of preventing resistance; or
(c) The female is unconscious; or
(d) The female is less than 10 years old.
Resistance Requirement
MPC doesn’t have a resistance requirement.
Mistake as to Consent
- Defendant must be at least reckless as
Resistance Requirement
Originally anything less than deadly force had to be met
with extreme resistance (Rusk v. State).
Has been diluted and is falling into disfavor.
Mistake of Fact
- General intent – reasonable mistake of fact may negate
mens rea
- Specific intent – reasonable or unreasonable mistake of
fact may negate mens rea
- Common law rules are beginning to erode, with some
jurisdictions moving away from accepting a reasonable
mistake defense with regard to consent.
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to the question of whether the victim
consented
If you can only prove negligence as to
consent, you can’t get a rape
conviction under MPC (see § 213.1, §
2.02(3))
Not specifically addressed in MPC, but
nonconsent is implied in compulsion
Battered Woman Syndrome – Level of control the defendant had over the victim.
NC definition of second-degree rape: Vaginal intercourse with the victim both by force and against the
victim’s will [says consent is a complete defense to crime of rape b/c demonstrates that intercourse not
against will]
1. By force
2. Against victim’s will
o Consent is complete defense to this element
Force
Either physical force, or threats of serious bodily harm, which would reasonably construe fear (aka
constructive force)
Non-consent itself is not force (Commonwealth v. Berkowitz)
Threats of force must be specific to the rape, not to prior acts (State v. Allston)
Determination of forcible compulsion factors:
- Ages of victim and accused
- Mental and physical conditions of the victim and accused
- Atmosphere and physical setting of an alleged incident
- Position of authority of accused
- Domination or custodial control of victim
- Whether victim was under duress
Consent is a complete defense to rape. But limitations:
 Consent induced by violence is NOT consent
 Consent can be withdrawn at any point prior to penetration
 Prior consent is NOT applicable to the present act of intercourse
Commonwealth vs. Berkowitz
Case about two college students in dorm. Said no softly a few times but did not resist. Court held that
verbal resistance is relevant to proving forcible compulsion but not sufficient. Nothing to suggest moral,
psychological or intellectual coercion upon the victim therefore not a case of forcible compulsion.
Withdrawal of Consent
People v. Vela (1985) – it’s not rape if the initial penetration is consensual
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Essence of rape is the outrage of a nonconsensual violation of her womanhood, and that doesn’t
exist if consent is withdrawn and THEN force is used
People v. Roundtree (2000)
- Withdrawal of consent effectively nullifies any earlier consent and subjects the male to forcible
rape charges if he persists in what has become nonconsensual intercourse
Common Law Rule
- If consent is withdrawn after penetration, it’s not rape
- Person can be and often is guilty of another sexual assault offense or a battery
State v. Alston, NC – Case where victim is battered and she does not resist. Court held she did not show
“force.” Threats of force must be specific to the rape, not to prior acts.
Actus reus elements of 2nd degree rape [Common Law]
1. Intercourse
2. Force
 Actual or constructive
3. Non-consent/Against the victim’s will
State v. Rusk, MD (Case where the ∆ took her keys out of car and she was intimidated)
 Before Rusk: Force is an essential element of crime & to justify conviction, evidence must warrant
conclusion that victim resisted & her resistance was overcome by force or that she was prevented
from resisting by threats to her safety
 Here, no resistance and no reasonable fear that she may have had that would overcome ability to
resist and look in his eyes / lightly choking wasn’t enough to overcome ability to resist
 Reversed on appeal since reasonableness of her fear is a jury question.
General trend is away from resistance requirement
Why would you want there to be a resistance requirement?
 Places males on constructive notice that the victim is not consenting
 Rebuttal: other ways to prove mens rea
 Could help prosecution/jury by setting minimum boundary necessary to constitute forcible rape
to help prove beyond a reasonable doubt
 Helps to guard against false accusations of rape
 Mere verbal resistance can’t be corroborated unless convo was recorded
Social Context and Law Reform
Rape Shield Laws
 Prevents D from harassing and humiliating victim
 The type of evidence generally has no bearing on whether victim consented to sex with D
 Exclusion of evidence keeps jury focused only on relevant issues to the case
 Victim will more readily report and testify in sexual assault cases if she does not fear that prior
sexual conduct will be brought before public
Force Requirement Abandonment
 Nonconsensual sex is forced sex, regardless of whether there is resistance
Marital Immunity
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Forcible sexual intercourse did not used to constitute rape, although sometimes constituted lesser
offense [battery]
This rule is eroding today
Abolished in House of Lords
Abolished in 24 states
Most states still criminalize narrower range of offenses if committed within a marriage
Rape by Fraud and Statutory Rape
Fraud in the Factum
Means no consent was given
- Situations where the victim thought they were consenting to marital sex are fraud in the factum
rather than fraud in the inducement
Fraud in the Inducement
Does not mean no consent – deception relates not to the act done, but the reason or circumstances
(People v. Boro) – case whether the fake doctor told lady she would have to have sex with somebody to
cure her disease.
Statutory Rape
Historically not gender-neutral – most originally only outlawed sex with an underage female, but today
that has changed dramatically
Strict liability crime; no mens rea required
 Reasonable mistake is not a defense because there’s no mens rea for it to negate
 Most jurisdictions have an age range for the statutory trigger at around 16 years old
Assault and Battery
Battery
Common law definition: an unlawful application of force to the person of another willfully or in anger
 Application of force can be made with or without an instrument
 Includes sexual advances and spitting
 NOT battery if there is consent
Assault
Common law definition: an unlawful attempt, coupled with a present ability, to commit a violent injury
on the person of another.
Many statutory definitions include threat to commit a battery and put a person in fear that they will
commit an imminent battery
MPC 211.1 → simple assault vs. aggravated assault
Defenses
Failure of Proof
An element of the crime is negated
 Each and every element must be proven beyond a reasonable doubt
 If mistake of fact negates mens rea, you have a failure of proof defense
Offense Modification
Background rules exculpate defendant, even though each element could have been sufficiently proving
 i.e. paying ransom in a kidnapping is aiding and abetting
Public Policy
Statutes of limitations, immunity, incompetency, etc.
 Resource constraints, evidence degrades, witnesses memories’ fade
Finality
 We want criminal matters to end; can’t continue to litigate forever
Justification
All elements are proven, including the social harm, but the social harm is somehow outweighed by
either a greater social interest or avoidance of a greater social harm
 Self-defense – they committed the crime, but did nothing wrong
Excuse
All elements are established, social harm not only present but not outweighed or negated; however,
we decline to impose criminal liability because we think they’re not blameworthy in the moral sense
 Insanity
Affirmative Defenses
Prosecution has the sole burden of proof in criminal cases. However, for affirmative defenses, defendant
must establish a prima facie case that the requirements of the defense exist. Burden of proof for the
elements of the crime, however, does not shift.
Self Defense
Common Law
Threat
- Unlawful
- Imminent peril of death or bodily harm
- Necessity
- Objectively reasonable belief of necessity
- Proportionality
MPC, Page 957
§ 3.04 Use of Force in Self-Protection
(1) Use of Force for Protection of the Person. … the
use of force upon or toward another person is
justifiable when the actor believes that such force
is immediately necessary for the purpose of
protecting himself against the use of unlawful
force by such other person on the present
occasion.
Necessity
Right of self-defense arises when necessity begins
and disappears when it ends.
- Imminencey is not the timing of the threat
itself, but the timing of the necessity to act
Clean Hands Doctrine
Generally must be fault-free to benefit from self(2) Limitations on Justifying Necessity for the Use of
defense.
Exceptions
An aggressor can regain their right to use selfdefense if:
- The aggressor has already withdrawn in
good faith and communicated that desire
to the other party
- If the victim of a minor fight escalates into
deadly force without giving the aggressor
a chance to withdraw
Rule of Retreat
You must retreat “to the wall” – no defense is
available if you have a safe attempt to retreat and
did not attempt it before striking back with
deadly force.
Exceptions
- Avenue of retreat is/appears unsafe
- Castle doctrine/stand your ground laws
There is no rule of retreat for non-deadly force,
even if retreat would result in no further harm to
either party.
Proportionality
Deadly force may not be used to repel a nondeadly attack
Force
(a) The use of force is not justifiable under this
Section:
(i) to resist an arrest that the actor knows is being
made by a peace officer, although the arrest is
unlawful; or
(ii) to resist force used by the occupier or
possessor of property or by another person on his
behalf, where the actor knows that the person
using the force is doing so under a claim of right to
protect the property …
(b) The use of deadly force is not justifiable
under this Section unless the actor believes that
such force is necessary to protect himself against
death, serious bodily harm, kidnapping or sexual
intercourse compelled by force or threat; nor is it
justifiable if:
(i) The actor, with the purpose of causing death or
serious bodily injury, provoked the use of force
against himself in the same encounter; or
(ii) The actor know that he can avoid the
necessity of using such force with complete
safety by retreating or surrendering
possession of a thing to a person asserting a claim
of right thereto or by complying with a demand
that he abstain from any action that he has no
duty to take, except that:
(1) the actor is not obliged to retreat
from his dwelling or place of
work, unless he was the initial
aggressor or is assailed in his place
of work by another person whose
place of work he knows it to be; and
(c) … A person employing protective force may
estimate the necessity thereof under the
circumstances, as he believes them to be when the
force is used, without retreating, surrendering
possession, doing any other act which he has no
legal duty to do or abstaining from any lawful
action.
§ 3.05 Use of Force For the Protection of
Others
United States v. Peterson – Case where the guy finds somebody in his backyard, and asks to leave, and
then goes in and comes back with a pistol and shoots him as he’s leaving. Court found that the ∆ was the
aggressor since he brought the pistol and told the decedent not to move and also since he started the
conflict he can’t invoke the duty to not retreat.
§ 3.05 Use of Force For the Protection of Others, pp 958
§ 3.06 Use of Force for the Protection of Property, pp. 959
§ 3.07 Use of Force in Law Enforcement, pp. 961
§ 3.08 Use of Force by Persons With Special Responsibility for Care, Discipline or Safety of Others
§ 3.09 Mistake of Law – No defenses if stupid basically
§ 3.10 Justification in Property Crimes
§ 3.11 Definitions, pp. 965
Defense of Third Persons
 You step into the shoes of the person you protect
 Majority rule: actor can use the defense of defense of others if she acts upon a mistaken but
reasonable belief
 Minority rule: formally placed into the shoes of the other person; regardless whether your
mistake is reasonable or not, you only have the right of self-defense where the person would have
had the right to self-defense (alter ego rule)
Defense of property
 May NOT use deadly force in defense of personal property
 Question then becomes can you threaten the use of deadly force in defense of personal property
 In some jurisdictions, you can’t threaten to do what you can’t do (aka answer to above question is
no)
 Usually because there is a fear of escalation
Defense of Habitation
 Focuses on the time at which the person is entering the dwelling, different from castle doctrine
 Some say right to repel intruder; others say only have right to repel if danger to occupants or
invader will commit one of enumerated felonies
 Once person is inside, generally, then revert to self-defense analysis (except for duty to retreat)
o Doctrine concerned more with homeowner’s ability to ascertain the risk, rather than
halting a continuing invasion of privacy
o Once they’re in, you have the ability to ascertain their level of threat to you and react
accordingly – restrictions on self-defense now apply
Deadly force in use to prevent crimes
 Cannot be used to prevent a misdemeanor
 Majority: deadly force can be used to prevent serious felonies
 Minority: deadly force can be used to prevent any felony
Deadly force in making arrests
 Cannot use to make a misdemeanor arrest
 Most jurisdictions now confine common law authority to use deadly force to arrest a felon to those
who have committed atrocious or forcible felonies
Battered Women’s Syndrome
 Confrontational Homicides – self-defense is generally available
 Non- confrontational Homicides – jurisdictions are split on whether self-defense is available
o State v. Norman
 Rule was “right to self-defense is based on necessity of killing an unlawful aggressor
to save oneself from imminent death or great bodily harm at his hands” and there
was no imminent harm here.
 Hired-Gun Homicides – generally not available
Imminence Requirement for Self Defense
 Common law → focus is whether or not death/serious bodily injury is about to happen; focus on
when injury/death is going to occur
 MPC → temporal focus is NOT on the timing of the threat of injury but not the necessity of
responding to the threat; focused on when you need to respond in order to prevent that harm
Imperfect Self-Defense
You don’t get a complete acquittal, but you do get some mitigation or relief
- BWS, deadly force in response to a non-deadly assault, defendant was aggressor or provoker
Transferred Intent and Innocent Bystanders
If you miss the aggressor and kill an innocent bystander, transferred intent typically keeps self-defense
available. Check out 3.09 (3) – not available under MPC if you’re being reckless or negligent.
Necessity and Duress
Necessity
Necessity is a justification defense – all elements of the crime are established, and there is social harm,
but it’s outweighed by a greater social benefit
Common Law
Rationale:
- Act must’ve been done to prevent a
significant evil
- No adequate alternative
- The harm caused is not disproportionate to
the harm avoided
(Nelson v. State – Case where guy trespassed and
destroyed property to get his car out of marsh for
no reason.)
Common law only recognizes necessity where
there is a non-human cause (i.e. Act of God)
Test is objective – a good faith belief in the
necessity of one’s conduct is insufficient
Defense is not available if defendant is at fault in
creating the situation, which requires choice
between evils.
MPC, 956
§ 3.02 Justification Generally: Choice of Evils
(1) Conduct that the actor believes is necessary to
avoid a harm or evil to himself or another is justifiable,
provided that:
(a) The harm or evil sought to be avoided by such
conduct is greater than that sought to be prevented by
the law defining the offense charged; and
(b) Neither the Code nor other law defining the offense
provides exceptions or defenses dealing with the
specific situation involved; and
(c) A legislative purpose to exclude the justification
claimed does not otherwise plainly appear.
Greater harm – is a reasonable person test.
Test under necessity is a subjective test – if you had a
genuine belief you were outweighing the harm, the
jury find you not guilty.
(2) When the actor was reckless or negligent in
bringing about the situation requiring a choice of
harms or evils or in appraising the necessity for his
conduct, the justification afforded by this Section is
unavailable in a prosecution for any offense for which
recklessness or negligence, as the case may be, suffices
to establish culpability.
Duress
Duress is an excuse defense – all elements are proven, and social harm is not outweighed, but we do not
believe they are morally culpable
- The distinction is that criminal acts performed under duress are only condoned by society, rather
than encouraged as under necessity
Common Law
Elements
- Immediate threat of death or serious bodily
injury (Immediacy)
- A well-grounded fear that the threat will be
carried out (Necessity)
- No reasonable opportunity to escape the
threat of harm (Escapability)
(From US v. Contento- Pachon)
MPC, pp 954
§ 2.09 Duress
(1) It is an affirmative defense that the actor engaged
in the conduct charged to constitute an offense
because he was coerced to do so by the use of, or a
threat to use, unlawful force against his person or the
person of another, that a person of reasonable
firmness in his situation would have been unable to
resist.
(2) The defense provided by this Section is unavailable
A threat to property will not suffice – it must be if the actor recklessly placed himself in a situation in
a threat to a person, specifically a threat of
which it was probable that he would be subjected to
death or serious bodily injury.
duress. The defense is also unavailable if he was
negligent in placing himself in such a situation,
Exceptions
whenever negligence suffices to establish culpability
- Clean Hands doctrine applies
for the offense charged.
- Duress is not a defense to murder or any
intentional killing
Duress is only a defense if the coercive agent is a
human (not an act of God – that’s necessity).
-
Under the MPC, there is no limitation to non-homicide context, and the threat need be
neither deadly nor imminent
The threat, or use of force, must be directed at a person, not at property, under either scheme
The coercion must come from a human, and not from nature, under common law and the MPC
Duress can be deployed can be deployed in situations where necessity is unavailable, such as in
situations where the social harm is not outweighed
- Also can be applied where equal harm results, or for harms whose balance is incalculable
Insanity and Diminished Capacity
Insanity
Insanity is an excuse defense
Burdens of proof:
 Standard for conviction: Beyond a reasonable doubt (95% or more certainty) [evidentiary
requirement]
 Preponderance of the evidence (over 50% certainty) → civil case verdict

o States can force a defendant to stay in trial who claims they are incompetent using a
preponderance of the evidence
“Clear and convincing evidence”: between preponderance of evidence and beyond a reasonable
doubt (probably about 75%)
Procedural Overview
Competency Hearing (Preponderance of the Evidence)
- Pretrial determination – is the defendant competent to stand trial?
o Not an insanity determination re: the actual offense
o Due process interests in the defendant meaningfully participating in their own defense
- Pretrial notice of the insanity defense
o Must give notice prior to trial
o Insanity is treated as an affirmative defense
o Verdict of not guilty by reason of insanity often triggers civil commitment proceedings
Why do we excuse for insanity?
- Lack of requisite mens rea
Insanity Tests (M’Naghten/MPC rules are dominant in the U.S.)
M’Naghten Rule
A defendant is entitled to an acquittal if the proof establishes that, at the time of committing the act the
accused was suffering from:
a) A disease of mind
b) Caused a defect of reason
c) Such that defendant lacked the ability at the time of his actions to either
i. Know the wrongfulness of his actions
ii. Understand the nature and quality of his actions
It is irrelevant that the defendant may have been unable to control himself and avoid committing the
crime – loss of control because of mental illness is no defense in M’Naghten jurisdictions if the defendant
still knew of the wrongfulness of his act
- M’Naghten test focuses on cognitive (intellectual) capacity, not emotional maturity.
Irresistible Impulse/Control Test
Because of mental illness the defendant was unable to control his actions or to conform his conduct to the
law; your mind cannot control your actions.
Durham “Product Test”
Excuses criminal conduct that is the product of mental illness or defect
A crime is a product of the disease if it wouldn’t have been committed but for the disease
Intended primarily to give psychiatrists greater liberty to testify concerning the defendant’s mental
condition
MPC § 4.01, pp. 966
A person is not responsible for criminal conduct if at the time of such conduct as a result of mental
disease or defect he lacks substantial capacity (cognitive prong) either to appreciate the criminality of his
conduct or to conform his conduct to the requirements of law (volitional prong)
 The defendant may know something is wrong without appreciating that it’s wrong – this is a
looser standard than M’Naghten
Diminished Capacity
As a result of mental defect short of insanity, defendant did not have the particular mental state required
for the crime charged
Mens rea variant (Majority Approach)
- Failure of proof defense
o Evidence of mental abnormality negates the requisite mens rea (for specific intent
offenses)
o May not succeed for general intent and strict liability offenses, but some jurisdictions allow
the defense for any kind of offense
- Majority approach to diminished capacity
Partial responsibility variant (Minority Approach)
- Government has proven mens rea and all other elements of the crime
Intoxication, Infancy and Background/Cultural Defenses
Voluntary Intoxication
 Intoxication is voluntary (self-induced) if is it the result of the intentional taking without duress of
a substance known to be intoxicating; the person need not have intended to become intoxicated
 Generally not a defense to criminal liability, unless it can negate specific intent (as a failure of
proof defense)
o Not available if defendant purposely became intoxicated in order to establish the defense
Under MPC, if recklessness is an element of the crime, the MPC would permit using voluntary intoxication
to negate it, because the act of drinking is sufficiently reckless
Involuntary Intoxication
 Rare, but generally a good defense to all criminal liability
 Coerced  true coercion or duress
 Pathological  have a special susceptibility to the drug that you didn’t know about in advance
 By innocent mistake  you didn’t know what you were taking was an intoxicant
 Unexpected intoxication from prescription drug (side effect not anticipated)
Grounds for Dismissal
- Failure of proof/negation of mens rea
- Temporary insanity (doesn’t carry civil commitment weight of a general insanity plea)
MPC §2.08:
(1) Intoxication is a defense if it negates element of offense; specific-intent/general intent doesn’t apply
(2) If recklessness is mens rea then if actor is unaware of risk, which he would have been aware if
he were sober, can’t use intoxication defense
(3) Does not constitute mental disease within itself
(4) If it is not voluntary or is alcoholism it is a defense
Infancy
 Excuse Defense
 Children generally do not have the capacity to form intent or discern right from wrong
 Also deterrent threat is not as effective with children
 Other available defenses to juveniles:
o Too criminally insane
o Too mentally retarded
o Too involuntarily intoxicated
Common law: under 7, infancy defense bars incarceration; over 14, don’t have infancy defense; between
7 and 14 have rebuttable presumption that child cannot distinguish right from wrong
Rotten Social Background
Doesn’t have freestanding validity, but sneaks in through other doctrines and usually comes in during
sentencing when judge considers mitigating reasons.
Inchoate and Group Crimes
Attempt
Incomplete Attempt – actor is somehow prevented from completing the desired act, and does not get to
everything he intended to do
Complete Attempt – actor is somehow prevented from producing the intended result, even though he
does every act planned
Common Law
Mens Rea – Dual Intent
1) Intent to perform the actus reus
2) The specific intent to commit the
underlying crime
Actus Reus – an overt act in furtherance of that
intent
Traditional proximity test – how close defendant
came to completing the offense
Majority/ MPC test – substantial step
Attempt is typically punished under the same
grade of crime, but less serious, than the offense
attempted
There is no such thing as attempted felony
murder (except in Florida)
Abandonment
Most jurisdictions have rejected the defense of
abandonment
MPC, pp 971
§5.01 – Criminal Attempt
(1) Definition of Attempt. A person is guilty of attempt
to commit a crime if, acting with the kind of
culpability otherwise required for the commission of
the crime, he:
(a) Purposely engages in conduct that would
constitute the crime if the attendant circumstances
were as he believes them to be; or
(b) When causing a particular result is an element of
the crime, does or omits to do anything with the
purpose of causing or with the belief that it will cause
such result without further conduct on his part; or
(c) Purposely does do or omits to do anything which,
under the circumstances as he believes them to be, is
an act or omission constituting a substantial step in a
course of conduct planned to culminate in his
commission of the crime.
MPC treats attempt the same as the underlying
offense, both in grade and degree
There is no such thing as attempted manslaughter
because §5.01 requires purpose or belief that a result
will occur (can’t use recklessly or negligently)
MPC §5.04(1) – Renunciation of Criminal Purpose –
you must have a complete and voluntary change of
heart (not because you’re afraid of getting caught,
motivated by a change in circumstances, or to attempt
at a better time)


Attempt to commit negligent crimes is logically impossible
Attempt to commit strict liability crimes is possible because defendant must act with the intent to
bring about the proscribed result
Distinction Between Preparation and Attempt

Mere preparation itself, unless it violates the law on its own, is not against the law and does not
constitute attempt
o Physical Proximity Test – close or immediate access to the completed crime
o Dangerous Proximity Test – nearness or the danger and the greatness of the harm
o Indispensable Element Test – something that is necessary to the commission of the crime
has been obtained
o Probable Desistance Test - likelihood that the actor would’ve probably desisted on their
own
o Abnormal Step Test – average citizen would think this step went too far
o Res Ipsa Loquitur/Unequivocality Test – person’s actions manifest their intent (past the
point of deciding whether to do something; it’s a go)
Factual Impossibility – not a defense to attempt; crime could’ve still been committed if you fix your
mistake (i.e. Gary Coleman/stabbing with a fake knife)
Pure Legal Impossibility – is a defense to attempt - no law prohibiting the conduct (even if you thought
it was illegal) (i.e. right turn on red)
Hybrid Legal Impossibility – still have a crime society wants to punish, and an actor seeking to break
the law, but a factual mistake about an attendant circumstance made it not a crime (if facts were as the
actor thought, it would’ve been a crime and it would’ve been possible for the actor to commit it, but
theoretically it’s impossible (i.e. trying to bribe a juror, but that person isn’t a juror)
Defenses to Attempt Liability - Impossibility
Pure Legal Impossibility is always a defense – arises only when the defendant did, or intended to do,
acts that would not constitute a crime under any circumstances (i.e. shoots off fireworks believing they
are illegal, but they’re not)
Factual Impossibility is no defense – it would have been factually impossible for defendant to complete
her plan even if she did all the things she intended to do (i.e. attempts to rob someone with no money)
Assault and Solicitation
Assault
Common Law
Intentionally subjecting another to reasonable
apprehension of receiving a battery
Proximity required for assault is even closer than
that of attempt
MPC
§211.1 Assault
(1) Simple Assault. A person is guilty of assault if
he:
(a) Attempts to cause or purposely, knowingly
or recklessly causes bodily injury to another; or
(b) Negligently causes bodily injury to another
with a deadly weapon; or
(c) Attempts by physical menace to put another
in fear of imminent serious bodily injury.
(2) Aggravated Assault. A person is guilty of
aggravated assault if he:
(a) Attempts to cause serious bodily injury to
another, or causes such injury purposely,
knowingly or recklessly under circumstances
manifesting extreme indifference to the value of
human life; or
(b) Attempts to cause or purposely or knowingly
causes bodily injury to another with a deadly
weapon.
Solicitation
Common Law
The asking, enticing or counseling or another to
commit a crime
Mens Rea – specific intent
Actus Reus - completion
- Typically carries a lighter penalty than attempt
- Merges into the completed crime (solicitor can be
punished at the level of the act the solicitee
committed)
The crime must be a serious felony or involve a
breach of the peace.
MPC, pp 973
§5.02(1) Criminal Solicitation
A person is guilty of solicitation to commit a
crime if with the purpose of promoting or
facilitating its commission he commands,
encourages or requests another person to
engage in specific conduct that would constitute
such crime or an attempt to commit such crime
or which would establish his complicity in its
commission or attempted commission.
 You can be guilty of soliciting someone
who has already decided to commit the
crime (“promoting”)
Uncommunicated Solicitation §5.02(2) – it is
immaterial that the actor fails to communicate
with the person he solicits to commit a crime if
his conduct was designed to effect such
communication
Renunciation §5.02(3) - it is an affirmative
defense that, after soliciting another person to
commit a crime, persuaded him not to do so or
otherwise prevented commission of the crime
Conspiracy
Common Law
Partnership in criminal purpose
Elements
1) Mutual agreement or understanding
2) Express or implied
3) Between two or more persons
4) To commit a criminal act
Mens Rea – Dual Intent
- Intent to agree
- Intent to commit the target offense
(Intent meaning purpose under common law, unless
purpose may be inferred by knowledge Lauria).
-
Does not merge with the substantive offense
(you can be found guilty of both)
MPC, pp 973
§5.03 – Criminal Conspiracy
(1) Definition. A person is guilty of conspiracy
with another person or persons to commit a
crime if with the purpose of promoting or
facilitating its commission he:
(a) Agrees with such other person or persons
that they or one or more of them will engage in
conduct that constitutes such crime or an
attempt or solicitation to commit such crime; or
(b) Agrees to aid such other person or persons
in the planning or commission of such crime.
Conspiracy generally merges with the completed
offense unless the conspiracy was broader than
the completed offense
Generally complete upon formulation of the
agreement; some jurisdiction do require an overt act
(though mere preparation will generally suffice)
Punished the same as the target offense
Pinkerton Liability
Corrupt Motive Doctrine – rejected by the MPC
An actor is liable for the acts of a coconspirator
when the act is within the scope of conspiracy
and a natural or probable consequence of the
conspiracy
Wharton’s Rule – MPC rejects Wharton’s rule
Liability
MPC rejects Pinkerton liability, but a person may
Treated much less seriously and punished lower than still be liable for the acts of others through
the target offense
accomplice liability or other means
Corrupt Motive Doctrine (minority)
Parties to a conspiracy are not guilty of conspiracy
unless they have a guilty mind or a corrupt/wrongful
motive (limited to malum prohibtum offenses)
Wharton’s Rule – when the definition of the crime
requires two or more persons, the conspiracy cannot
be charged separately (conspiracy is inherently
included in its definition)
- breaking down; no longer lets you off the hook, just
requires merger of an attempted or completed
offense


Intent cannot be inferred from mere knowledge
Cannot have a conspiracy to commit a strict liability crime because there is no intent
Unilateral vs. Bilateral Conspiracy
Unilateral Conspiracy – a person commits conspiracy when, with intent that an offense be committed,
he agrees with another to the commission of that offense
Bilateral Conspiracy – any two or more persons conspire or agree together to do any illegal act; if one
person is acquitted the other cannot be guilty because each coconspirator must fulfill every element
- MPC subscribes to unilateral approach, and common law isn’t there yet but is slowly gravitating
away from the bilateral definition
Types of Conspiracy
People can be parties to the same conspiracy, even though they don’t all know each other
Wheel Conspiracy – hub in the middle (central player), with spokes (supplying central player,
contributing different skills/acts/supplies/functions); spokes may not even know each other exist
Chain Conspiracy – each link is necessary to the entire enterprise
- Chain conspiracies are much easier to prosecute than wheel conspiracies
Multiplicity/MPC §5.03(3)
At common law and under the MPC, one agreement equals one conspiracy; multiple objects can be part of
one conspiracy.
- Key is the number of agreements
Terminations of Conspiracy
Evidence of overt acts of concealment is not sufficient to make the act of concealment part of the
conspiracy
The government’s defeat of the conspiracy’s ultimate objective does not automatically terminate the
conspiracy.
Defenses to Conspiracy
 Factual Impossibility – no defense
 Withdrawal – no defense, because conspiracy is complete upon agreement
o MPC recognizes voluntary withdrawal as a defense only if the defendant thwarts the
success of the conspiracy
 A person may limit his liability for subsequent acts of the conspiracy, including the target crime if
he withdraws by an affirmative act giving notice to all members of the conspiracy in time that they
have the opportunity to abandon their plans
Accomplice Liability
Conspiracy v. Complicity
Conspiracy – need proof of agreement, but not proof of assistance
Complicity – need proof of assistance, but not proof of agreement
Common Law
Principal in the First Degree – actor who commits
the crime, even if through an innocent
instrumentality
MPC
§2.06 – Liability for Conduct of Another
Complicity
(1) A person is guilty of an offense if it is
committed by his own conduct or by conduct of
Principal in the Second Degree – actual or
another person for which he is legally
constructive aid, or counseling or encouragement
accountable, or both.
of the commission, in its actual presence
(2) A person is legally accountable for the conduct
of another person when:
Accessory Before the Fact – same as the principal in (a) acting with the kind of culpability that is
the second degree, but the crime does not take
sufficient for the commission of the offense, he
place in that person’s presence
cause an innocent or irresponsible person to
engage in such conduct; or
Accessory After the Fact – someone with knowledge (c) he is an accomplice of such other person in the
of the crime provides assistance to hinder
commission of the offense.
prosecution or apprehension
(3) A person is an accomplice of another person in
the commission of the offense, he
Traditionally at common law, principal in the first
(a) with the purpose of promoting or facilitating
degree had to be convicted before any other actors, the commission of the offense, he
but today accessories can be convicted w/ or w/o
(i) solicits such other person to commit it; or
principals.
(ii) aids or agrees or attempts to aid such other
person in planning or committing it; or
Mens Rea – Dual Intent
(iii) having a legal duty to prevent the commission
1) Intent to assist the principal
of the offense, fails to make a proper effort to do
2) Intent that the offense actually be committed
so
(Most jurisdictions require purpose that the
(2) when causing a particular result is an
offense be committed – knowledge is not sufficient)
element of an offense, an accomplice in the
conduct causing such result is an
Natural and Probable Consequences Doctrine –
accomplice in the commission of that
accomplice is liable for the target offense, plus
offense, if he acts with the kind of
other crimes that are natural and probable
culpability, if any, with respect to that
consequences thereof
result that is sufficient for the commission
of the offense.
Exclusions from Liability
Mens Rea – purpose of promoting or facilitating
 Members of protected class
 Withdrawal: repudiation of encouragement, the commission of the offense
neutralizing assistance, notifying
Natural and Probable Consequences Doctrine –
authorities, or otherwise preventing the
rejected by MPC
target offense


Mere presence can be enough of an actus reus for accomplice liability, even if you didn’t have the
opportunity to fulfill your intended function
Mere presence can be encouragement