CRIMINAL LAW OUTLINE
JUSTIFICATIONS OF PUNISHMENT
Two Philosophical Approaches/5 justifications of Punishment
1) Utilitarian, or Consequentialist Justification - Basic idea: Maximize Social Welfare.
Sometimes characterized as creating “the greatest good for the greatest number” or
“maximizing total utility”. Cost-Benefit approach: Punish if the Benefits outweigh the
Costs.
a. Regina v. Dudley – sometimes better to risk own life than an innocent persons.
- Utilitarian would punish an innocent person to end a crime wave.
b. General Deterrence - Punish to deter other individuals from committing crimes,
i.e. stop other potential offenders from committing crimes
i. People v. Suitte – Police stop Suitte for unrelated car rental issue and find
an unregistered gun. Although he has gun to protect himself in high-crime
neighborhood, family man, and no record, court sentences him to 30 days
and 3 years’ probation for purpose of general deterrence determined by
legislation’s toughest gun law ad campaign and governor’s proclamation.
c. Specific deterrence - Punish to deter individual defendant from committing same
or other crimes in future
i. Deterrence theory is based on belief offenders do Cost-Benefit analysis in
deciding if will do a crime
ii. Expected Benefits: Gains from crime/Expected Cost = Expected
Punishment
iii. Ways to Increase Deterrence:
1. Increase the severity of the sentence if convicted.
2. Increase the probability of apprehension and conviction.
3. Change potential offender’s perception of severity of sentence or
probability of conviction
d. Rehabilitation - Reduce crime by reforming offenders through programs such as
drug rehabilitation, job training, educational programs and counseling etc.
e. Incapacitation - Reduce crime by keeping the offender locked up. Offender can’t
commit crimes against society while in jail.
2) Retributivist/Non-Consequentialist Justification. Rights-based approach.
a. Retribution - Society should punish a person if and only if the person deserves it.
Retribution is a non-consequentialist theory—it does not focus on the impact of
punishment on society, i.e. it does not matter if punishment would maximize
welfare of society.
i. Retributivist would not kill one innocent person to stop a terrorist from
destroying a city, killing millions of people – not morally blameworthy.
Comparison between Retributivist and Utilitarian Theories:
- Retributivist would increase police patrols and increase penalties for taggers at cost of
$5 million because more people jailed that actually committed the crime. If cost was
$3 million, utilitarian chooses it also.
- Utilitarian would hire people to whitewash graffiti at cost of $4 million because of
cost benefit of $1 million. Retributivist says people go free.
ELEMENTS OF A CRIME
Actus Reus + {Mens Rea} + [Causation] + [Result] + [Attendant Circumstances]
Equals Criminal Liability Unless Justified or Excused
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Statutory Interpretation
- What is the meaning of the words used in statute? Grammar and syntax.
- Intent of the legislature – anything on the record. Policy intent.
- When we have a doubt, we have to go in favor of the defendant.
Actus Reus: The Act Requirement
- Requires a voluntary act, or a legal duty plus failure to act.
1) Thinking vs. Acting
a. Can’t be convicted for just thinking about a crime, must voluntarily act (or
omission) on it.
b. Why? Bombard courts, due process, etc.
c. Dalton – Dalton wrote disturbing fictional stories about child molestation and
torture. Pled guilty to pandering obscenity involving a minor and sentenced to 7
years. Writings only on the precipice of crime, we don’t prosecute on mere
thought alone.
2) Voluntary Acts - Conviction requires a voluntary act that causes a social harm (or
omission where there is a legal duty to another).
a. Habitual acts are volitional act, just because you aren’t aware doesn’t mean it isn’t
a crime.
3) Involuntary acts
a. Situational /Government-Compelled Acts
i. Common law – government compelled activity
ii. MPC – bodily conduct that is not of the person’s conscious or habit
iii. Martin V. State – D convicted of being drunk in public after police arrest
him inside his home where he is already drunk and forcibly take him onto
street where he acts in drunken manner. Conviction overturned because
there was no voluntary act when police forcibly removed him-state
compulsion.
b. Other Involuntary Acts
i. Common law and MPC
1. During unconsciousness
a. Decina – Decina charged with vehicular homicide after
having an epileptic seizure while driving causing him to
lose control of the car and run down 2 girls on sidewalk. D
knew he was susceptible to seizures and that driving could
be dangerous, so awareness of a condition which he knows
may cause injury to others is liable for culpable negligence.
i. Criminal liability can occur even if the act
immediately preceding the harm was
involuntary if there is a prior voluntary act that
warrants crim liability.
b. Vining – D grabbed woman on subway after having a
seizure and is convicted of assault. Conviction overturned
after showing that unconsciousness was involuntary.
Difference is that he didn’t knowingly put himself behind a
dangerous car, but took public transit instead.
2. During sleep
3. Reflex or convulsion
ii. MPC only – hypnosis
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4) Omissions & Legal Duties - Criminal liability can be based upon an omission if the
defendant had a legal duty to act and was physically capable of acting. Omission must
cause social harm, and defendant must also act with required mens rea.
a. Beardsley – V was not the wife of D, so D not liable for providing her care when
she overdosed on morphine. D didn’t assume care, mere fact that she was in his
house doesn’t create a legal duty, where she voluntarily consumes morphine.
Didn’t create situation because drugs not given to V by D. Highlights narrowness
of the omission standard.
- Five situations that D has a legal duty to act:
b. Special relationship between D and V (ie husband to wife/child)
i. Commonwealth v. Howard – D convicted for not stopping bf from beating
daughter. Parent has legal duty to protect child. She witnessed abuse and
didn’t stop it and lack of action was a direct result of death.
c. Contract requires action (ie between caretaker and elderly)
i. Commonwealth v. Pestinikas – D contracted with V to provide care for
$300 a month. V is placed on porch, not fed, turn away nurse, don’t
provide drugs, and drain bank account. V later dies and court finds D
liable for failure to act imposed by contractual duty. Also a voluntary
assumption of care.
d. Statutory duty to act (ie pay taxes)
e. D creates the actual risk
f. Voluntary assumption of care of person in need of help
i. Regina v. Instan – Niece supported aunt and lived in her home. Aunt
became ill and niece didn’t feed or aid her. Aunt dies. Court held niece
had legal duty to help aunt because she voluntarily assumed care of aunt.
Also could be special relationship and a contractually duty.
- Note, not liable if physically incapable of acting (jumping into pool to save drowning
daughter, but can’t swim. Liability for not throwing life jacket though).
- MPC incorporates the CL and the two are identical.
- Duty to Aid
o Most states have no duty to provide aid
o If there is one, only applies to certain professions
o Includes protection for a tort claim
o Sherrice Iverson – David Cash not liable for a crime for failure to stop
Strohmeyer because there was no good Samaritan law or requirement to tell
anyone or help the girl.
 New Iverson law very narrow – reasonable belief, notify police officer
only, 14 year olds and under, only a misdemeanor for failure to do so.
o Arguments against duty to aid:
 Privacy and liberty, don’t want everyone to be an informant
 Administrability problem, line drawing problems
 Notice, ie how do you know if you have to act?
 Impeding law enforcement
o Arguments for duty to aid
 Moral
 Prevent harm
 Partial substitute for police action
5) Status Crimes – cannot punish D for mere status
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a. Robinson v. CA – D cannot be prosecuted under a statute criminalizing addiction
to drugs because addiction is like an illness, which we don’t prosecute. Status of
addiction makes D continuously guilty of the offense. Law violates due process.
b. Powell v. Texas – D may be convicted for drunk in public because it is in an act.
D had a drink before trial and would have had more if he could afford it.
Drinking is a voluntary act. Statute only criminalizes act, not status.
Mens Rea
The mens rea for a crime is the particular state of mind required by the offense definition. It is
the mental state the offender must have when he or she performs the actus reus.
Mens Rea under the MPC
- Mens rea required for each material element of an offense
o Material elements – elements relating to the harm the statute is trying to
prevent – actus reus, result, and any attendant circumstances.
 Non-material elements may be:
 jurisdictional or
 relating to statute limitations
o Exception for strict liability offenses
- May meet mens rea with a higher mens rea, ie knowledge suffices for recklessness
- Court may use same mens rea for second element when one is stated for first element
- Defines four mental states:
1) Purpose
a. D’s conscious object or goal to:
i. Do the act; or
ii. Cause the result
2) Knowledge - D practically certain that the result will follow from his act even though the
result may not be his goal.
3) Recklessness – D consciously takes a substantial and unjustifiable risk where taking such
a risk is a gross deviation from the behavior of a law-abiding citizen. Four elements:
a. Defendant is aware of the risk
b. The risk is substantial and unjustified
c. Defendant consciously decides to take the risk
d. Taking the risk is a gross deviation from the behavior of a law-abiding citizen
e. Default mens rea when not states is recklessness
4) Negligence – Defendant takes a substantial and unjustifiable risk where taking such a risk
is a gross deviation from the behavior of a reasonable person. Four elements:
a. D not aware of risk
b. Risk is substantial and unjustified
c. Reasonable person would be aware of the risk
d. Taking the risk is a gross deviation from behavior of a reasonable person.
5) Absolute liability, aka strict liability – D guilty regardless of mental state. Applied to
non-material elements:
a. Jurisdictional
b. Statute of limitations
i. Used in two ways:
1. Entire statute devoid of mens rea
2. One mens rea for an element, but nor for other elements in statute
Mens Rea under CL
- Mens rea may have different meanings indifferent statutes. Canons of statutory
interpretation:
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o
o
o
o
o
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Goals
Plain language of statute
Legislative intent
Interpretation consistent with interpretation by other courts?
Best public policy
Rule of lenity to D
 U.S. v. Yermian – Court determines that making false statements to
any department or agency of the U.S. does not carry a mens rea
because jdx language does not usually have culpability reqmt,
language doesn’t support the reading, and Cong must make that
determination. Dissent argues that willful and knowledge reqd
because of plain reading of text and use in other part of sentence.
1) Intent – Conscious object or purpose to cause a certain result or to engage in certain
prohibited conduct. Or, one who intends a social harm if one knows to a virtual certainty
that one’s actions will cause the social harm.
a. Similar to MPC use of purposely and knowledge
b. Willfully means intentionally – People v. Atkins
c. Intent proven by circumstances, including motive, words
i. State v. Fugate – Court looks at all circumstances, including instrument to
kill, manner of inflicting blow, size and age of defendant, to determine
that the D intended to kill shop owner when he robbed the store and led
him downstairs to shoot him. He shouldn’t have been a threat otherwise.
d. Deadly weapon rule – Court can infer intent when D uses deadly weapon on vital
body part/bodily organ
2) Malice/malicious = recklessness
a. An actual intention to do the harm done; or
b. Recklessness as to whether such harm should occur or not/Foreseeability of risk,
similar to MPC
i. Regina v. Cunningham – D intended to steal pipe to sell, but did not
necessarily foresee that stealing the pipe would leak gas that injured
mother-in-law. Evidence only shows he wanted money from the gas pipe.
3) Knowledge – similar to MPC definition, also includes Willful blindness or deliberate
negligence
a. Willful translates to knowingly in MPC
b. Willful blindness doctrine – no separate definition for MPC and MCL approach to
willful blindness. Knowledge implied if:
i. Statute requires D to know particular fact, and
ii. D is aware of high probability/has strong belief that fact is true, and
iii. Deliberately avoids finding it out/ learning more (so claim didn’t know)
1. US v. Jewell – D purposefully avoids looking in secret
compartment of car to avoid positive knowledge of weed.
4) Recklessness – meaning almost identical to MPC.
5) Negligence – gross deviation in MPC. Gross negligence, criminal negligence, or
culpable negligence mean the same.
a. Ordinary negligence is not enough for criminal liability in common law.
Special Problems Regarding Intent
1) Transferred Intent
a. If harm you cause is just to a different person, intent transferred within same harm
that statute is trying to prevent.
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i. Ie – Angel shoots at buffy, aiming for buffy’s heart. Bullet misses buffy
but hits and kills cordelia.
2) Specific Intent v. General Intent
a. Specific intent - Required mental state entails only an intent to do the act that
causes the harm.
i. Intoxication defense may be used for specific intent crimes
b. General intent - Required mental state entails only an intent to do the act that
causes the harm.
i. Intoxication defense may not be used for general intent crimes
1. People v. Atkins – Arson is a general intent crime because the
statute doesn’t require a specific intent to burn or cause to be
burned a specific structure or forest. Only requires intent to set a
fire, burn, or cause to be burned. Intoxication not a defense to
Atkins.
3) Strict Liability – neither approach likes strict liability; presumption is that there is a mens
rea.
a. MPC Approach – Absolute liability only if:
i. Offense is punishable only as violations
ii. Legislative purpose plainly appears as strict liability
1. Commonwealth v. Barone – PA vehicular homicide statute
ambiguous as to whether unintentionally causing the death of
another means no mens rea required. Because MPC doesn’t like
strict liability for homicide crimes and legislature didn’t intent
strict liability, court finds Barone not guilty of killing motorcyclist
when she fails to look both ways. Court uses gross negligence as
mens rea.
iii. Or for non-material elements such as jurisdictional or statute of limitations
b. Common Law Approach – Look at number of factors, including:
i. Statutory language
ii. Legislative intent/legislative history
iii. Severity of penalty
iv. Damage to reputation/stigma
v. Public health/safety/welfare (regulatory) offense, or traditional common
law crime that requires mens rea (ie theft, homicide)
1. Moressette v. US – D takes bomb casings from Fed land and sells
as scrap. Statute doesn’t specifically state a mens rea for crime,
but court holds that a mens rea is a basic interpretation for all theft
crime. Congress omitted the mens rea because of long history of
requiring it in all criminal cases. Silence was adoption of this
concept.
2. Balint and Behrman – regulatory crimes relating to prescription
drugs cited in Morissette, no mens rea for workplace safety and
health standards. Penalty small, no damage to reputation. D in
position to prevent harm in future. Effective means of regulation.
vi. Other
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Mistakes
1. Mistake of Fact - Mistake of fact generally is a defense when it negates a mens rea of the
offense. Put differently, a defendant is not guilty if as a result of a mistaken belief he or
she did not have a required mens rea for the offense.
a. MPC Approach - The MPC is the more sensible and coherent approach and we
generally will follow the MPC approach.
i. MPC §2.04 (1) and (2): Ignorance or mistake as to a matter of fact or law
is a defense if the ignorance or mistake negatives the purpose, knowledge,
recklessness, or negligence which is required to establish a material
element of the offense.
ii. Exception: The defense is not available if the defendant would be guilty
of another offense had the situation been as he supposed. In such case,
however, the ignorance or mistake of the defendant shall reduce the grade
and degree of the offense to the offense of which he would have been
guilty had the situation been as he supposed.
iii. MPC simplified:
1. Which mens rea is (are) required by the statute?
2. Does the defendant have that (those) mens rea?
b. Common Law Approach - There are a number of different ways the common
law looks at mistake of fact including:
i. Specific Intent versus General Intent crimes (highlighted in textbook):
This requires the court to determine if an offense is a specific intent or
general intent crime
1. For specific intent crimes an honest mistake of fact is a defense if
it negates the specific intent required for the offense.
a. People v. Navarro – D takes pipes from Federal land
believing them to be abandoned. Specific intent crime
requires intent to deprive owner of property. Trial court
argues that mistake of fact must be both honest and
reasonable. Appeals Court overturns, holds that only an
honest belief that the pipes were abandoned or he had
permission is required for specific intent crimes.
2. For general intent crimes an honest and reasonable mistake of act
is a defense if it negates a mens rea of the offense.
a. Bell v. State – prostitution is a general intent crime – one is
aware that he is committing the acts where are defined as
wrongdoing. There was no mens rea for age, leg intent is
strict liability.
ii. Moral Wrong: Does not allow a mistake of fact defense if despite the
mistake defendant’s conduct was morally wrong.
iii. Legal Wrong: Does not allow a mistake of fact defense if the defendant’s
mistaken belief had been true, defendant would be guilty of a different
crime.
1. Bell v. State – D’s conduct would still be illegal if the girl had been
over 16. D didn’t lack criminal intent because he ultimately
intended to promote prostitution
2. Mistake of Law – generally is not a defense as indicated by the expression “ignorance of
the law is not a defense.” In most cases (but not always), you can be convicted of a crime
even if you don’t know that you are breaking the law.
a. Common Law Approach - Three Exceptions to General Rule:
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i. D reasonably relies on official interpretation of the law that is actually
wrong
1. People v. Marrero – D argues mistaken belief that carrying a gun
was legal based on official statement of the law contained in
statute interpreted by gun dealer and crim law teacher. Court
argues statute like MPC so the interpretation must afterward be
determined to invalid or erroneous.
2. State v. Fridley – D tried to get a work permit to drive after license
revoked. Relied on interpretation from Debbie at DMV that it was
ok to drive in the meantime. Court holds that Debbie’s
interpretation is not official enough (Head of DMV might be).
ii. Mistake of law that negates a mens rea
1. Cheek v. US – D sincerely believed the tax laws were
unconstitutional and his non-payment was lawful. Therefore no
act with mens rea of willfulness, ie he didn’t know he had to pay
taxes. Good faith misunderstanding of tax laws is a sufficient
defense, but his claim is not a defense because such an
understanding proves full knowledge of the complexities of tax
code. A view of the tax law is not a sufficient mistake.
iii. D lacks fair notice of a legal duty imposed by law – “Lambert Exception”
1. Lambert v. California – D convicted of not registering as a felon,
but she had no notice of the law, didn’t know the law, it was an
omission statute, no reason to check to see if law was on books.
No activity involved in crime, just a law enforcement technique.
2. State v. Bryant – D required to register at a sex offender when he
moves to NC from SC, but different from Lambert because failure
to inquire about sex registration is not wholly passive because of
previous violation in another state and prevalence in all jdx.
b. MPC Approach – A belief that conduct does not legally constitute an offense is a
defense when:
i. The statute or other enactment defining the offense is not known to the
actor and has not been published or otherwise reasonably made available
to the conduct alleged (Lambert exception); or
ii. D acts in reasonable reliance upon an official statement of the law,
afterward determined to be invalid or erroneous (this is the difference
between the common law and MPC), contained in:
1. A statute or other enactment;
2. A judicial decision, opinion or judgment;
3. An administrative order or grant of permission; or
4. An official interpretation of the public officer of body charged by
law with responsibility for the interpretation, administration, or
enforcement of the law defining the offense.
Causation
Causation: required for all offenses which require a particular result as part of offense definition
Limitations on causation
1. But-for cause (actual cause) - “but for D’s voluntary act or omission would the social
harm have occurred when it did?
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a. Regina v. Martin-Dyos – D throws a brick at V’s head and injures him but also
sustained a second injury probably from a car. Couldn’t figure out what injury
caused death to V, so D is not guilty of murder.
2. Proximate cause (legal cause)
a. Foreseeability - Is it fair and just to hold the d liable?
i. Commonwealth v. Rementer – D beats his girlfriend, who then runs away
from him to a passing station wagon with a family inside. Station wagon
runs over V and kills her. D argues that victims act of running away was
intervening cause that broke causal chain. Court holds that the death was
foreseeable because beating took place on public street and death was a
foreseeable consequence of conduct.
ii. Commonwealth v. Skufco – D locking children in bedroom for several
house left them susceptible to foreseeable dangers. D held liable for death
of children in fire.
iii. Commonwealth v. Colvin – D throws stone at V’s house, daughter tells
mother and mother collapses and dies. Causal connection between
throwing stone and death too remote.
b. Intervening cause:
i. Dependent (responsive) - dependent upon or responsive to the voluntary
act. You are guilty if dependent. Doesn’t break the causal chain
1. State v. Govan – D’s gunshot wound to v caused V’s quadriplegia.
Foreseeable that she would lose the will to live and stop taking
medication after pneumonia resulting from tracheotomy resulting
from gunshot wound. Court holds all of these are dependent upon
D’s gunshot wound.
ii. Independent (coincidental) - independent of or coincidental to the
voluntary act. Breaks the causal chain
1. unforeseeable events
c. Acts by the Victim
i. Refusal to seek medical treatment – general rule doesn’t break causal
chain, unless it is a minor wound and is aggravated by ill motive by
victim.
ii. Cheeks case [in Rementer] – victim pulls out tubes. General rule will not
break the causal chain
iii. Distraught victim commits suicide – crime is what caused suicidal
tendencies
d. Pre-Existing Conditions: Take the victim as you find them, with limits – doesn’t
break causal chain
i. Religion, medical conditions, but not idiosyncrasies of victim.
e. Negligent medical care – ordinary negligence by doctor doesn’t break the causal
chain.
i. If gross negligence by doctor, determine who is more blameworthy. More
likely to break causal chain if it is a minor injury.
f. Farther away from incident, more difficult to prove causation.
g. Traditional common law – year+day rule
h. Joint and Coincidental Causes
CONCURRENCE
Mens rea required for offense definition must occur at the time of the actus reus. Two types of
concurrence must be present:
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1. Temporal concurrence – must possess the required mens rea at the same moment of the
actus reus.
2. Motivational Concurrence – mens rea must be motivating force behind actus reas (do we
not need to know this)
a. State v. Rose – D couldn’t be convicted of manslaughter because no reasonable
jury could determine whether D actually killed the victim on impact or by
dragging him. If he killed him on impact there was no mens rea.
Elements of Homicide
1. Actus Reus (“killing”)
2. Result: Death of Another Human
3. Causation: Defendant’s actus reus must cause the death
4. Mens Rea: Usually required—exception for felony murder
- For this course we will define person as one who is “born alive”
- Death occurs at “brain death”
- Mens rea at time of death determine what you will be charged with.
- Grading of homicide: Except for felony murder, homicide level generally is based on
the mens rea of the defendant with respect to “causing the death of another human
being”
Malice aforethought includes any one of the following:
1) An intent to kill
2) An intent to commit serious bodily injury
3) A depraved heart or abandoned and malignant heart killing ie gross negligence
4) The felony murder rule applies
- If intending to kill, defendant has express malice.
- If shown any other way, it is implied malice
o Evidence used to imply malice aforethought:
1) Circumstantial evidence
2) Deadly weapons rule – infer intent to kill when a deadly weapon is aimed
at a vital body part
3) Natural and probably consequences doctrine?
Modern Common Law - Murder (“with malice aforethought”)
1st degree Murder
1) Intent (purpose) to Kill with Premeditation & Deliberation
a. Premeditation – killer must have reflected upon and thought about the killing in
advance.
i. No particular length of time is required – may include a wink of an eye
b. Deliberation refers to the quality of the accused’s thought process.
i. Killing done with a cool head.
ii. Takes some time.
1. State v. Bingham – D wanted to have sex with V and had to kill her
to do so. P argues that 3-5 minutes it took to strangle her was
enough time to deliberate. Court overturns arguing having enough
time to deliberate killing is not enough to prove premeditation.
Diss argues you can premeditate once you’ve started act resulting
in death.
c. Factors to determine P/D
i. Plan to kill – bringing a weapon to the crime site, lying in wait for the
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victim, stalking
ii. Motive – reason to kill
iii. Manner – deadly weapon on a vital body part, torture, shooting, stopping,
and then reloading versus a spur of the moment incident.
1. State v. Brown – D beats son to death. Court finds no deliberation
because he acted out of anger/passion and spent no time thinking
about killing, only intent was to beat him. No premeditation
because he likely wanted boy to live to continue beatings at later
date. D convicted of 2DM because he acted with malice and
without provocation
2) 1st Degree Felony Murder
a. Limited number of felonies trigger this rule because no mens rea required for
causing death
b. No mens rea to cause death required.
2nd degree Murder
1) Express Malice
a. Intent to Kill, but with no premeditation and deliberation.
i. Bingham – D chokes V, no formation of P and D
2) Implied Malice
a. Intent to do Serious Bodily Harm + resulting death
i. Commonwealth v. Dorazio - former boxer intends to beat rival union
member and kills him. Malice intent due to difference in size of D and V,
manner fists were used, ferocity of attack, duration, and lack of
provocation. Not necessary to prove injury intended to be permanent or
dangerous to life. May also show recklessness plus a depraved heart.
b. Depraved Heart or Abandoned and Malignant Heart killing, i.e. Gross
Recklessness
i. Requires recklessness demonstrating a depraved heart or extreme
indifference to human life
1. People v. Knoller – D breeds lethal dogs that kill neighbor.
Subjectively knew of danger because vet alerted her and dogs had
attacked in the past. D acted with conscious disregard of human
life and D aware of conduct that had a high probability of causing
death.
2. Pears v. Alaska – Death foreseeable when you drive drunk and
awareness where D disregards warnings from police and friend.
Blew red lights and swerved lanes, intentionally ran red light to
avoid cars. Voluntarily got drunk. No social utility in drunk
driving.
ii. Extra reckless – so high that it shows an extreme indifference to human
life.
iii. Defendant realized that his actions created a substantial and unjustified
risk of death and yet went ahead and committed the actions anyway
1. Note that ordinary recklessness is often manslaughter
iv. Examples of extreme recklessness (R + DH)
1. One-sided Russian roulette (Russian “poker”)
a. Commonwealth v. Malone – D and friend V played Russian
roulette with uncle’s gun. 1 bullet, but 3/5 chance of
shooting because he pulled trigger 3 times. Aimed the gun
at V’s head (vital organ). Subjectively aware of large,
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unjustified risk that pulling trigger could result in death. No
intent to kill, but sufficient evidence to show malice.
2. Shooting into occupied home
3. Firing over person’s head to scare them
4. Shooting into moving automobile
5. Driving a car into a crowd
c. 2nd degree Felony Murder – Fill in
Model Penal Code - Murder
1) Purposely or Knowingly causing death of another
2) Recklessly with Extreme Indifference to Human Life
a. Similar to depraved heart doctrine.
b. Pears
Manslaughter
Common Law - (“without malice aforethought”)
Voluntary Manslaughter – would be second degree murder, except for a partial defense
- Intent to Kill [or intent to do SBH or Depraved Heart killing/Gross Recklessness] +
either:
o Provocation defense (i.e. Heat of Passion defense)
o Imperfect self-defense – not a total defense. See defenses below
- General Requirements:
o The killing must be committed while D was enraged or in the heat of passion
o D’s heat of passion must be produced by legally adequate provocation
o No adequate time to cool
- If successful the defense reduces the offense from murder to voluntary manslaughter.
- Anything that is a non-felony murder can be dropped down to manslaughter with
provocation defense.
- Three different approaches to voluntary manslaughter:
1) Early common law: categorical test - Categories of provocative acts limited to:
a. aggravated assault or battery
b. attacks / serious crimes committed against close relative – including sexual
assault
c. mutual combat
d. observing wife in act of adultery – originally only applied to men and had to
actually see the act.
e. illegal arrest
- Mere words not sufficient
- Cooling Time - legally adequate cooling time was very short – reasonable people
cooled off very quickly. It is so impassioned that you lose control, not to kill.
- Cause of the Provocation - the provocation must come from the victim
2) Modern Common Law: Reasonable man test
a. Gives more power to juries, some jurisdictions allow:
i. Limits on what constitutes adequate provocation
ii. Free reign to hear facts and decide adequateness
iii. Age, size, gender, but not personality defects
b. Jury must find:
i. The defendant actually acted in a heat of passion
ii. The heat of passion was provoked that would also provoke a reasonable
man to lose self-control
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iii. Defendant did not have sufficient time to cool off between the provocative
act and killing
iv. A reasonable man would not have had sufficient time to cool
v. Must be a causal connection between provocation, passion, and killing
Differs from the traditional approach:
- Reasonable person approach to legally adequate provocation. Jury decides if
sufficient provocation based on whether a reasonable person would lose control or
become in the heat of passion
o People v. Berry – D and V married. V provokes D saying she loves another
man but still wants to have sex. Two weeks of tormenting. Even though D
waits 20 hours in apt to kill, court allows accumulation of heat of passion,
verbal provocation sufficient, and rekindling of event is sufficient. Her
scream reignites prior passion. Broadest interpretation of the Provocation
standard – passion would naturally be aroused in the mind of an ordinary
person under the given facts and circumstances.
- Includes unchangeable characteristics that are relevant to the crime. A biological
maturity.
o Varies by jurisdiction. Many use basically objective standard but with immutable
physical characteristics of the defendant are considered if they are relevant to
provocation. Examples:
 Age – matters for sexual crimes, ie young people can’t really do it.
 Size – size matters for assault
 Gender (as relates to strength/fear of assault etc.)
o Do not consider personality characteristics or idiosyncrasies. So will not include
for example:
 Sense of “honor”/culture
 Obsessive jealousy
 Short-temper
- Reasonable person approach to cooling time. Jury decides if there was adequate
cooling time. Broader than traditional standard
o Brooding/smoldering
o Rekindling
Model Penal Code - Manslaughter
1) Recklessly (without EIHL)
a. Aware of substantial risk of death and take risk anyways
2) Otherwise Murder but carried out under Extreme Mental or Emotional Disturbance for
which there is reasonable explanation or excuse.
a. If successful reduces the offense from murder to manslaughter
i. State v. Dumlao – D threatened to beat and kill wife, very jealous and
protective accused her of having sex with her own brother. This evidence
is sufficient to show that he shot mother-in-law under influence of EMED.
Although not reasonable, jury determines the evidence under the
subjective/objective test. Likely result that subjectively he met the test
due to mental instability causing jealousy, but still not reasonable to shoot
V.
b. MPC 210.3 (1) Criminal homicide constitutes manslaughter when 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
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circumstances as he believes them to be.
i. must prove that at the time of actus reaus D was under EMED
ii. you can be cool at the time, but extremely disturbed.
iii. any grief, or anger you will get this.
iv. Victim doesn’t have to be the source of the EMED.
v. Requires reasonable explanation or excuse for being EMED. Being
EMED alone is not sufficient.
vi. Looking at it from point of view of reasonable person in victim’s
circumstances as defendant believe the situation to be.
Objective/subjective.
vii. Cultural characteristics that are not idiosyncratic are taken into account.
Theory being you were born into it.
viii. Personality defects or idiosyncratic beliefs are not permissible.
Differences between Provocation Defense and EMED Defense
Provocation under traditional and modern common law standards:
1) Must be in the “heat of passion”
2) Must be legally adequate provocation – traditional only has 5 circumstances, and
modern common law uses objective test, that only allows subjective views that
directly relate to the situation. (less than MPC)
3) Has there been time to cool?
 Revocation.
MPC – EMED
- Don’t need to be in heat of passion
- Can be multiple events
- Can have cooling time.
- Very broad
Common Law - Involuntary Manslaughter – death by criminal negligence, gross negligence,
or recklessness depending on statute.
Generally requires a minimum mens rea of Gross Negligence.
- Vast majority of jurisdictions it is gross negligence.
o Creating a substantial and unjustifiable risk of death.
o Big deviation from risk that a normal person would take
o Defendant not aware of the risk.
o Differs from recklessness because you aren’t aware of risk, but you should be.
o No clear cut standard on how big the risk must be to rise to gross negligence –
larger the risk, more likely it is gross.
 Commonwealth v. Welansky – D failed to address defecting wiring,
flammable decorations, proper fire escapes and overcrowding. Statute
requires only objective measure of risk, D need not be aware, so really
only negligence. Took risk a reasonable person wouldn’t take.
 State v. Williams – D’s allow baby to die from tooth ache that becomes
gangrenous for fear of social services taking the baby away. Only
negligence required, but probably knew of danger to baby.
- What to look for to determine ordinary and gross negligence?:
o Was there social utility?
o How much of a deviation between normal conduct
- Common Law Vehicular Manslaughter / Vehicular Homicide* - don’t have these in many
jurisdictions.
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-
Normally punished less harshly than involuntary manslaughter
Generally requires mens rea of gross negligence.
o Baroney – court reads in gross negligence – but court couldn’t find such a
deviation given the length of time that she was stopped. As a matter of law, just
ordinary negligence.
o We value the social utility of driving
Model Penal Code Approach to Manslaughter – Negligent Homicide
 Killings committed Negligently (i.e. equivalent of “gross negligence")
Felony Murder
1) Early/Original Common Law Rule: A person who causes a death during the
commission or the attempted commission of a felony is guilty of murder.
o Didn’t matter, because all felonies were punishable by death
o Fewer felonies to begin with
2) Modern Common Law: Many limits on the Felony Murder rule.
o Form of strict liability because the prosecutor doesn’t have to prove a mens rea
for causing the death. Every other theory of homicide requires a mens rea
 Accidental death counts
o Captures everyone taking part in the felony
o Two levels of felony murder: Both require a conviction of a specific felony that
triggers the felony murder rule.
o Two levels of felony murder: Both require a conviction of a specific felony that
triggers the felony murder rule
- Analyzing Felony Murder under the Modern Common Law
a. Is it a felony that triggers the felony murder rule?
i. If BARRK then potential first-degree felony murder
1. Don’t need to go through the merger or inherently dangerous q’s.
2. Enumerated Felonies: “BAARK”
a. Burglary
b. Arson
c. Robbery
i. People v. Stamp – Ds robbed office, throw v out of
office and force him to ground. After Ds leave, V
gets up, complains of chest pain, and dies from
heart attack shortly after police arrive. Ds guilty of
FM because the death flowed from the robbery.
Regardless of Foreseeability, as long as death is the
direct causal result of the felony. You take victim as
you find him.
ii. Acid Washed Jeans – D old woman who struggled
with security guard over a pair of jeans she stole. D
knocks over really old V and kills him accidentally.
D guilty because felony direct cause of the man’s
death and robbery is enumerated.
d. Rape
e. Kidnapping
ii. If not BARRK, then potential second-degree felony murder if the felony is
both:
1. Inherently dangerous AND
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a. Not based on statistical analysis, felony can rarely result in
death and still be inherently dangerous
b. Majority Rule Felony in the abstract: Does committing this
crime necessarily involve a sufficiently great danger to life?
i. People v. James – D guilty of felony manufacturing
of meth. Court uses abstract rule because there is a
killing in every 2nd degree felony murder, and if it
looked at facts first every felony would be
inherently dangerous. Court looks at elements of
crime and scientific evidence. Holds that meth
production is inherently dangerous because it
requires haz mat, mixed together, with heat.
c. Felony as committed: Did the particular way in which the
D carried out the crime involve a sufficiently great danger
to human life?
i. Hines v. State – D guilty of possession of firearm by
convicted felon. Court holds inherently dangerous
determined by either majority or minority rule.
Felony inherently dangerous because hunting with
people around results in foreseeable risk of death
under circumstances.
2. Independent of the homicide so that it does not merge with the
homicide
a. Merger doctrine: The underlying felony must be
independent of the homicide. Purpose of felony murder
rule is to deter killing that occur as part of felonies, not to
deter the felonies.
b. Whenever the underlying felony is:
i. An integral part of and included in homicide; and
ii. There is no independent felonious purpose for the
act=
iii. Then the felony is merged with the homicide
c. An independent felony is one where there is a purpose
other than causing a physical injury to another person.
d. Examples where the felony murder merges with homicide:
i. Assault with a deadly weapon
ii. Manslaughter
e. People v. Smith – D convicted of felony child abuse for not
stopping bf from beating up child/also beating up child that
resulted in daughter’s death. The purpose of the abuse was
the very assault which resulted in death. Since that is
purpose of the statute, it merges into murder. Clearly a
reckless with a depraved heart murder.
f. Examples where the felony does not merge with homicide:
i. Furnishing narcotics
ii. Robbery
iii. Driving while under the influence of alcohol
b. Did the killing occur during the commission or attempted commission of the
felony, ie is the res gestae requirement met?
i. Two parts to the Res Gestae Requirement:
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1. The felony and the homicide must be close in time and distance
(temporal and geographical proximity to the felony)
a. Felony ends when the perpetrator has reached a place of
temporary safety or is in custody. This is sometime called
the escape rule because felony murder does apply during
the immediate flight from a qualifying felony.
b. Therefore, felony murder doesn’t apply if killing occurs
before the felony
i. People v. Bodely - D burglarizing store and during
escape V joins pursuit, sticks hand in door, and is
thrown to ground and killed. Since escape is part of
one continuous transaction, felony murder
liability continues during the escape until D reaches
a place of temporal safety.
2. A causal connection between the felony and the homicide
a. Unclear how much of a connection is required
b. Most often more than but-for causation required, but some
courts only require but-for causation
i. King v. Commonwealth – D and V running pot from
Mexico. D trained pilot, but V flying. No causal
connection because crash didn’t occur during
furtherance of the felony and was not directly
related to the felony act, merely flying an airplane.
Different if flying too low to avoid radar detection.
c. Who was the killer? Who caused the death?
i. Agency jurisdiction (majority rule) – Felony murder doesn’t extend to a
killing, although occurring during the felony, if it is done by someone
other than the D or his co-felon during the felony
1. Has to be a felon that causes the death
2. Not sufficient to say that because D started the robbery they are
responsible for all deaths that occur.
3. State v. Canola –D and three others rob jewelry store. During
robbery, the store owner resists and shoots and kills a codefendant.
D not guilty of that murder because statute doesn’t compel
proximate cause theory.
4. Provocative Act Doctrine – separate doctrine from felony murder
whereby a D can be convicted of murder when he or an accomplice
commits a provocative act and a third part kills another in
reasonable response to the act.
a. Won’t get tagged with felony murder
b. But will get second degree murder the provocative act
doctrine
c. All Ds liable
d. Don’t need this under a proximate cause jurisdiction
ii. Proximate cause jurisdiction – Felony murder rule applies to any death
proximately resulting from the unlawful activity
1. – even the death of a co-felon notwithstanding the killing being
done by the one resisting the crime.
d. Who was the victim?- ie was the victim a co-felon?
e. Was the killing in furtherance of the felony?
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i. Killing in furtherance of the felony – When one felon does a totally
unforeseeable killing not intended to further the felony, the other D is not
usually guilty of felony murder because the death wasn’t foreseeable.
3) Misdemeanor Manslaughter Rule/Unlawful Act Doctrine
a. Common law doctrine whereby a person can be convicted of involuntary
manslaughter if he/she is committing an unlawful act that is not felony, ie a
misdemeanor
i. Similar to FM rule in that you don’t need to prove a means rea for causing
the death.
ii. Proximate cause limitation
1. State v. Todd – D stole $100 from church collection plate. V
chased D and had a heart attack in pursuit. Misdemeanor not
proximate cause of death because theft carries not threat, so only
but for cause.
4) Model Penal Code: No felony murder rule.
a. However, there is a presumption of extreme recklessness when a homicide occurs
in the course of BARRK felonies and in felony escape.
b. Only one state has adopted MPC approach to felony murder.
c. We will not use the MPC approach to felony murder rule in this course.
Attempts
Attempt definition – an act, done with intent to commit a crime, and tending but failing to affect
its commission
Required elements for attempt:
1) Actus Reus
a. Common Law – Dangerous proximity to completion test (how much is left to do)
i. Mere preparation is not enough
ii. Jdx can draw line anywhere between mere preparation and attempt, but it
usually isn’t the first or last step before the completed crime.
iii. People v. Rizzo – D and three others wanted to rob payroll of Rao. Ds
drove around looking for Rao, D ran into a building to search for Rao, but
Rao not in building and never found him. There was a lot left to do
because V not found, no robbery attempt until V in sight, no payroll
actually taken out that day.
iv. People v. Staples – D rents apartment above bank and intends to rob it but
abandons the robbery after drilling hole. Court finds that he had taken a
direct step toward completion and finds D guilty
b. MPC – shifts focus away from what remains to be done to what already has been
done
i. A person is guilty of attempt if he acts with the culpability required for the
commission of the crime he
ii. Purposely does or omits to do anything that, 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. Substantial to corroborate criminal purpose
iii. Conduct that may be held substantial step is not unless is strongly
corroborative of the actor’s criminal purpose.
1. Four main activities that will corroborate under MPC:
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a. Lying in wait, looking, following, luring the victim to site
of crime
b. Reconnoitering – checking out the crime site or unlawfully
entering a place where you plan to commit a crime
c. Possessing materials that have no lawful purpose or no
lawful purpose under the circumstances or are specifically
designed for criminal purpose
d. Soliciting an innocent person to do the actus reas
2. State v. La Traverse – D parks in front of Vs house intending to
break into car and blow it up. Has a note stating it was V’s turn.
Strongly corroborated intent to intimidate the officer V.
2) Mens Rea: Purpose to commit underlying crime (Common law: purpose/specific intent).
Note no result is required, therefore no causation
a. Must have purpose/intent to do the underlying crime under MPC AND MCL
b. Require less actus reas, but a higher mens rea for attempt.
i. People v Harris – D and V argue about infidelity. V runs away gets in car
and drives away. D shoots at car and breaks rear window. D not convicted
of attempted murder because his purpose was not to kill, but only to cause
great bodily harm.
ii. State v. Hinkhouse – D slept with many women knowing he had HIV and
infected them. His conduct showed an intent to murder and assault
women based on various acts.
3) Abandonment or Renunciation
a. Common law: Did not allow abandonment
i. Once you have the purpose to aide someone and you give aide, you can’t
renounce
ii. Because common law requires to you come dangerously close to
completion of the crime, it shouldn’t allow you the defense of
abandonment.
b. MPC: Allows renunciation/abandonment if it is both
i. Voluntary; and
ii. Complete – you gave it up. If court believes you will try again, it isn’t
complete.
1. State v. La Traverse - D not going to get abdt defense because he
only left because the backup police officer showed up, spooking D
2. People v. Staples – D gave up bank robbery and had change of
heart, but because the landlord saw stuff in the apt it probably
wasn’t voluntarily
4) Defense of Impossibility
a. Common Law - If the situation is as the D believed it to be would be a crime if
not for impossibility, D guilty of an attempt. Analyzed the same way as the
MPC.
b. MPC – No impossibility defense per se. If the situation is as the D believed it
to be would be a crime if not for impossibility, D guilty of an attempt.
i. Particular conduct charged to constitute a criminal attempt, solicitation or
conspiracy is so inherently unlikely to result or culminate in commission
of a crime that neither such conduct nor the actor presents a danger
warranting the grading of such offense.
ii. US v. Thomas – Ds guilty of raping dead girl because at the time they
acted on the rape they believed she was alive. They took substantial steps
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to rape the girl under the belief that their acts would culminate in the
commission of the crime.
iii. MPC only - Pure legal impossibility – if what you are trying to do isn’t a
crime you can’t be guilty of an attempt to do a crime, because there was
no crime
5) Solicitation – Basic idea: Catch D before he/she could be convicted for attempt, ie when
D intentionally solicits or requests another person to commit a crime. Get them earlier
than we can convict for attempt. Elements of solicitation:
a. Mens rea: specific intent (common law), ie purpose to promote the commission of
the crime
b. Actus reus: D requests, invites, encourages, commands, induces, counsels or hires
another person to commit a crime
i. D cannot be convicted of both solicitation and attempt
ii. D cannot be convicted of both solicitation and the crime
iii. D cannot be convicted of both attempt and crime
1. Anya tells Bob “I hate Cal. I want you to set his car on fire. I’ll pay
you $100 when you have done it.” Bob instead tells the
police. Can’t get Anya for completed crime - which would require
that she light the match. Can’t get Anya for attempt - although she
has the purpose, she hasn't come dangerously close. No one has
found the car or bought the materials to burn the car. Too much
left to do. Can get her for solicitation - she has asked someone to
do the crime, which is enough under the common law.
iv. Use of an innocent instrumentality - If you ask someone to go pick up a
purse that happens to be stolen but the other person doesn’t know it, you
are the one that is liable of theft, not the innocent person because they
didn’t have the required mens rea. If you train your eagle to steal
something, you are the one liable because the eagle didn’t have a mens
rea.
Punishment for attempts:
1) Most jurisdictions punish attempts less severely than completed crimes. In general,
punishment is based both on the harm intended and on actual amount of harm caused.
a. Example: Reckless behavior that doesn’t result in a death often is not punished at
all. Reckless behavior that results in a death is punished as involuntary
manslaughter.
2) MPC punishes attempts the same as completed crimes in most cases.
Accomplice Liability
Definition: One who intentionally assists another in the commission of a crime can be convicted
of accomplice liability.
- Mere presence not sufficient to be an accomplice, must actually assist.
Elements of Accomplice Liability
Conviction as an accomplice requires
1) A Principal that meets all of the elements of a crime
2) Actus reus – actual aid is required.
a) Pace v. State – Principal robbed V of watch and $3. D only driving the principal and
hitchhiker V. D did nothing to assist and kept driving after incident. Mere presence is
not sufficient to serve as actus reus for accomplice liability – didn’t advocate, approve of,
and had not duty to oppose robbery.
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State v. Parker – D partied with other Ds and fled the scene with them. Even drove for a
short period. Mere presence was enough to aide. D’s presence and failure to act made
crimes possible. Inaction can be accomplice liability if they act as a lookout. Lack of
objection supported conviction.
3) Mens rea – purpose to aide in commission of a crime, must know acts will aid the crime, and
must know the criminal intent of the perpetrator.
a) Note, perpetrator doesn’t need to know the accomplice is providing aid/assisting.
b) Wilson v. People – D a feigned accomplice in a burglary attempt. Only purpose in
assistance the principle was to get him caught by police. Jury should determine if he had
the right mens rea.
Modern Approach - Three categories:
1) Principal: Perpetrator, formerly principal in the first degree, person who meets the offense
definition
2) Accomplices: Includes principals in second degree and accessory before the fact
o Charged w/ the same crime as the principal, all face same possible punishment
o If you can convict someone ,you can convict all of them.
o Words can be enough
3) Accessory after the fact
a) separate category, punished less
b) They only have the mens rea to cover up the crime, not to commit the crime.
They aren’t as culpable.
Using an Innocent Instrumentality
 Also called “perpetrator-by-means”
 Person who uses an innocent instrumentality to commit a crime is liable for the crime
as the principal/perpetrator
Mens rea for Crimes of Recklessness and Negligence: Requires
1) Purpose to assist / aid in actus reus for offense and
2) mens rea required for the result/offense
a) Example:
 Joe is driving Jane to work
 Jane is late so she tells Joe to ignore a red light and drive much faster than the speed
limit
 Joe speeds through the red light and crashes into a car, killing the driver
 Joe grossly negligent, Jane grossly negligent and accomplice to involuntary
manslaughter
- Accomplice to an uncommitted crime - not possible, a crime must be committed by
someone in order to have accomplice liability because attempted accomplice liability is
too remote.
- Differences in Degree of Culpability – an accomplice can be charged with a more serious
offense than a perpetrator in situations where the perpetrator has a defense (provocation
for murder) and accomplice’s purpose was to commit the crime.
- Defenses
o Traditional Common law: No abandonment/renunciation defense
o Modern Common Law: Some modern jdx allow
 if voluntarily and completely renounce/abandon the crime
 and make substantial efforts to prevent the crime.
 Can’t just stop doing the crime.
 Don’t need to be successful in stopping crime.
 Can give timely notice to law enforcement
b)
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-
o Note: Accomplice can be convicted of higher crime than perpetrator if he has a
defense that reduces it.
 Exception is accessory after the fact which is always lower crime.
Acts outside the Common Plan/Unintended Results
o General Rule under MCL – An accomplice can be held for all crimes of other
accomplices that are:
 Planned or
 Reasonably foreseeable result of committing the planned crime ie that are
a natural and probable consequence of committing crime.
o Ex: If accomplice’s purpose is to rob a store and the principle rapes someone
during the robbery, the accomplice is only charged with robbery. However, if a
gun goes off during the robbery, the accomplice could also be charged with felony
murder. Note foreseeability.
Defenses
Actus Reus + {Mens Rea} + [Causation] + [Result] + [Attendant Circumstances] Equals
Criminal Liability Unless Justified or Excused
Two different kinds of Defenses
1. Case-in-chief defenses - Defense attacks prosecutor’s case by showing that prosecutor
cannot prove an element of the offense
2. Affirmative Defenses - Affirmative defenses do not attack prosecutor’s case, that is they
do not negate elements of the offense
o Rather affirmative defenses arise where prosecutor can prove all elements of an
offense but the defendant still can avoid or lessen criminal liability
o Examples of affirmative defenses include
 Self-defense
 Necessity
 Duress
 Insanity
Two types of Affirmative Defenses
1. Justification Defenses – say that the defendant did the right thing to do under the
circumstances
a. Self Defense
i. Common Law
1. For use of non-deadly force the Actor needs to show that he/she
honestly and reasonably believes:
a. There is an imminent/immediate threat of unlawful bodily
harm
i. Don’t actually have to be threatened, but a
reasonable person must believe it.
ii. State v. Stewary – Battered Womens Syndrome – no
imminent threat because she said she would kill H,
didn’t leave when she could, hid loaded gun in
anticipation, car was in driveway, laid next to him
for 2 hours while he was asleep. No momentary
hiatus of beatings.
b. The force used is necessary to repel the threat, ie protect
oneself
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c. The force used is proportional, ie is not excessive in
relation to the threatened force
2. Cannot be the initial aggressor
3. No general duty to retreat
4. For use of deadly force the actor needs to show that he/she
honestly and reasonably believes:
a. There is an imminent/immediate threat of serious bodily
harm or death
b. The force used is necessary to repel the threat, ie to protect
oneself
 Reasonableness
 If the actor’s belief is honest and reasonable then the actor will be
acquitted. This is self-defense or “perfect” self-defense
o People v. Goetz – Goetz shoots 4 teens on subway after
they ask him for pack of gum. D honestly believes that
they want to play with him, but his belief of an imminent
threat is not reasonable because they make no attempt on
his life and do not have weapons. Court adopts purely
objective standard for reasonableness. Evidence includes
lack of guns, no threat, and intent to murder, established a
pattern of fire, and fled the scene, shot kid multiple times.
o State v. Simon – D paranoid about Asian neighbor and
believes he will use karate to hurt him. Starts shooting at
Asian neighbor, other neighbors, and police. Court says
although honest, his belief of a threat is unreasonable
because not all Asians are martial arts experts.
 If the actor’s belief is honest but unreasonable then the actor will
be convicted of voluntary manslaughter. This is “imperfect or
“unreasonable” self-defense. Can be either
o An unreasonable belief that force is necessary
o Wrongfully escalate to deadly force when attacked with
non-deadly force
o Looks at all facts and circumstances surrounding event to
determine whether a reasonable person would believe it
necessary to use force, including
 Physical characteristics, not just immutable,
unchangeable characteristics
 Relative size, age, gender of victim
 Physical movements of the assailant
 Fierceness/persistence of assault
 Whether or not the assailant appeared to have a
weapon
 Relevant knowledge that defender had about the
assailant (reputation of violence)
 Prior experiences that are not idiosyncratic
personality traits of D
ii. Model Penal Code Approach
1. Relaxes the requirement of an imminent threat somewhat when
Actor believes use of force is necessary on the present occasion.
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-
-
a. This broadens the immanency requirement and goes more
toward the Stewart standard.
b. Doesn’t mean preemptive strike, but it does mean in
battered spouse situations you might still get the defense.
2. Expands use of deadly force to where perceived threat is of serious
bodily harm, death, kidnapping or threatened or forcible sexual
intercourse. However, it is likely that kidnapping or forcible sexual
assault would be considered threats of serious bodily harm under
the common law.
a. This is similar to the common law, just more explicit.
b. Even under the common law these would be threats of
serious bodily harm.
 Reasonableness
o If the actor’s belief is honest and reasonable then the actor
will be acquitted. “Perfect” self defense
o If the actor’s belief is honest but
 She/he was Reckless in forming his/ her beliefs
then the actor can be convicted of a crime with a
mens rea of recklessness (manslaughter); or
 She/he was negligent in forming his/her beliefs then
the actor can be convicted of a crime with a mens
rea of negligence (negligent homicide)
o MPC&MCL Initial aggressor exception
 If an actor is the initial aggressor, ie the first to use or threaten unlawful
force, then she/he is not entitled to self-defense
 The initial aggressor can regain the right to use self-defense if she/he in
good faith attempts to withdraw by declining further combat (use of force)
and communicating this to his/her adversary.
Duty to Retreat Rule
o Majority of jurisdictions: No duty to retreat
 Jenkins v. State – D had a duty to retreat but circumstances involving
threat to family, property, and himself after he was punched, V attacked D
again, D didn’t use swinging motion with knife and kept it on him as tool
of the trade. FL drops duty to retreat rule after this.
o MPC and minority of jurisdictions: Duty to retreat before using deadly force but
 Duty to retreat only applies if person knows that he/she can do so with
complete safety
 No duty to retreat if not the initial aggressor and
 Attacked in own home
 Attacked in own place of business or employment by a non-co-worker
Defense of Others
o Majority position: An Actor can use force to defend a third party (can be
anyone else, don’t need to know them) to the extent that the third party would be
entitled to use such force to defend herself or himself.
 Ie, the actor must honestly and reasonably (don’t have to be correct)
believe such force is necessary to protect the third party from imminent
unlawful bodily harm.
 A third person must be under unlawful attack
 Proportionality requirement
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o Minority position: If the actor had a right to self-defense then you did.
 but you had to be right.
 Required status relationship
- Defense of Property
o Deadly Force: Use of deadly force cannot be used to protect property. Use of
deadly force to prevent a felony is only permitted to prevent serious felonies
which threaten great bodily harm such as robbery, certain dangerous burglaries
and home invasions.
o Spring Guns, Bear Traps and Similar Devices - An Actor is permitted to use a
device to protect property only if:
 the device is not designed to cause death or serious bodily injury, and
 the use of the device is reasonable under the circumstances
o People v. Ceballos – Can only use deadly force to protect yourself, and he wasn’t
at home when kids broke in. No felony involved or an arson, because the kids
just wanted to steal some tools. The burglary wasn’t a substantial threat to rise to
the level of a dangerous felony.
2. Excuse Defenses – D meets all of the elements for the crime, but say that D’s act was the
wrong thing to do under the circumstances but the D is not responsible for the wrongful
act. An external reason for not holding the D criminally responsible
o Burden of Proof
 Prosecutor has the burden of proof beyond a reasonable doubt for all
elements of the offense
 Defense usually must prove any “affirmative defense” by a
preponderance of evidence
a. Necessity Defense – Complete Defense
i. Common Law – The actor:
1. must face a choice between two evils and choose lesser evil
a. One of which is a crime
2. threatened harm was imminent / immediate
3. reasonably believe illegal action would abate / avert the harm
a. Have to think you'll actually succeed in avoiding the harm
b. Subjective and objective
4. must have no legal alternatives
5. cannot use the defense if there is a contrary legislative intent
a. If leg has already done balance of harm and the crime isn't
the lesser harm, can’t raise the D
6. 6) cannot use the defense if the Actor created the situation giving
rise to the necessity
7. cannot use the defense for homicide crimes
ii. MPC Approach – The actor:
1. must face a choice between two evils or harms and choose lesser
evil/harm
a. Looking at the harm from society's viewpoint - not the
person's subjective belief.
2. cannot use the defense if there is a contrary legislative intent
3. cannot use the defense for crimes with mens rea of recklessness if
the Actor recklessly created situation
4. cannot use the defense for crimes with mens rea of negligence if
the Actor recklessly or negligently created situation
a. This is different than the common law
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b. If reckless in creating the situation, can't use it for a crime
or recklessness or negligence
c. If negligent in creating the situation, cannot use it as a
defense for a negligence crime.
5. can use the defense for the crime of homicide
a. Just means you can send it to the jury
iii. Key differences between the Common Law and MPC
1. No imminence requirement under the MPC, but still has to be
reasonable - harm avoided is greater than the harm caused and the
D believes action was necessary, the harm need not be imminent
2. Defense can be used for homicide crimes under the MPC, gets it to
the jury
iv. Under Both
1. Can't use it for economic necessity
v. Examples of Necessity Defense
1. Lost hiker breaks into a cabin for food in order to survive
2. Person burns another’s property to create a firebreak for wildfire
3. Person takes a boat without permission to save a drowning
swimmer
vi. United States v. Schoon –
1. Balance of harms - Nothing illegal about El Salvador policy.
Congress has already balanced the harm and that its legal - they
have chosen the lesser evil.
2. Causal relationship between criminal conduct and harm to be
avoided - Attacking the IRS isn't likely to abate killings in El
Salvador or change Congress' policy
3. Legal alternatives Petitioning congress is always a legal
alternative.
4. No imminent harm - it's a future harm
b. Duress Defense
i. Common Law – The actor:
1. must face a present, imminent and pending (NOW) threat of
serious bodily harm or death to the Actor or another person if
they didn't commit a crime [traditional: close relative]
2. had a reasonable / well-grounded fear that the threat would be
carried out unless he committed the crime
a. Don’t have to choose lesser of the evils (unlike necessity)
3. cannot reasonably escape the threatened harm
a. If you can, you lose the defense
4. cannot use the defense if the Actor negligently placed him/herself
in the situation
a. If you can, you lose the defense completely
5. cannot use the defense for the crime of homicide
6. Must turn yourself into authorities at first opportunity (only applies
to escaped prisoners)
ii. MPC Approach - The Actor:
1. must face a threat of unlawful force against the Actor or another
person which a person of reasonable firmness would be unable to
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resist where “reasonable” allows for consideration of a few
subjective factors
a. Not completely objective
b. Although doesn’t open it up to idiosyncrasies or personal
beliefs.
2. cannot use the defense if the Actor recklessly placed him/herself in
the threatening situation
a. Lose defense completely if aware of the risk
b. Negligently you still get the defense.
3. cannot use the defense for a crime with a mens rea of negligence if
the Actor negligently placed him/herself in the threatening
situation
4. can use the defense for the crime of homicide
iii. Key differences between the Common Law and MPC
1. No imminence requirement under the MPC (but must be
reasonable fear)
2. Defense can be used for homicide crimes under the MPC
3. Does not need to be threat of serious bodily harm or death (but
must be reasonable fear) under the MPC
iv. U.S. v. Contento Pachon
1.
Immediacy – D being watched and threat of family being killed
ever present because drug lord was able to find them.
2. Escapability- police corrupt, first opportunity to escape was in US
c. Intoxication (three types)
i. Voluntary (MCL), self-induced (MPC) - voluntary took substance and
knew it would intoxicate you OR should have known it would.
1. MPC – negates mens rea of purpose or knowledge
a. Is person sufficiently intoxicated so that they are legally
insane and don’t know nature of what they are doing or you
are unable to conform to the requirements of the law
b. Voluntary If you are taking some substance and knew or
should have known that it would make you intoxicated
c. Took substance and didn’t know and it wasn’t reasonable
to know it would get you intoxicated or pathological
intoxication (took a little and gets you wasted), took it by
mistake
d. People v. Register- No intoxication allowed for depraved
heart murder (brandishing gun in a bar and killing innocent
victim) and depraved heart can’t be negative by
intoxication (not a mens rea)
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2. MCL – does it negate specific intent?
ii. Involuntary intoxication - didn't know it was an intoxicating substance and
it wasn't reasonable to know.
1. Can negate any mens rea because you aren’t presumed the risk if
you are involuntarily intoxicated.
2. Used to get temporary insanity defense because you are unable to
conform to the requirements of the law. May be formed by:
a. Pathological intoxication - an extreme, unexpected
intoxication based on the small amount you took.
b. Duress
c. Mistake
d. Intoxicated pursuant to medical advice
iii. How intoxicated do you have to be?
1. So intoxicated that you can’t formulate a mens rea
2. Many factors used to determine intoxication (weight, age, quantity)
iv. Commonwealth v. Smith – DUI for knowingly drinking alcohol when she
was also using a duragesic patch.
d. Insanity – Purposes of the Defense: Can't deter a person that doesn’t know right
and wrong. Retribution doesn’t fit because we feel they aren't culpable due to a
mental disease or defect. Incapacitation served through civil commitment if this
purpose is truly necessary.
i. Common law
1. M’Naghten Test
a. An Actor has an Insanity defense if at the time of the
criminal act (actus reus) as a result of a mental disease or
defect he/she either
i. 1) did not know the nature and quality of his act, or
1. Ie they really didn’t know what they are
doing
2. Ie you believe that you are squeezing a
pillow instead of a person
ii. 2) did not know that his conduct / act was wrong
1. Know is narrowly read, must be practically
certain
2. To determine knowledge, an expert witness
testifies whether the D knew right from
wrong.
iii. Problem with this test is that it’s a really narrow
test, just need to answer yes to a series of questions.
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iv. D presumed to be sane, then Defense has to bring it
up and prove with evidence, then Prosecutor must
prove that he's not.
2. Irresistible Impulse
a. An Actor has an Insanity defense if at the time of the
criminal act (actus reus) as a result of a mental disease or
defect he
i. 1) was not capable of controlling his conduct due to
a sudden uncontrollable impulse
1. Impulse so strong that even if a police
officer was right there you still would do it
ii. Drug abuse is never a defense.
3. Deific Decree
a. An Actor has an Insanity defense if at the time of the
criminal act (actus reus) as a result of a mental disease or
defect he
i. 1) believes is acting under “deific decree” or that
the act is ordained and commanded by God
1. Broadens mcnaghten a little bit
ii. MPC Approach – broadest test
1. An Actor has an Insanity defense if at the time of the criminal act
(actus reus) as a result of a mental disease or defect he does not
have the substantial capacity to either
a. 1) appreciate the wrongfulness of her conduct
b. or 2) conform his conduct to the requirements of the law
i. Doesn’t require the sudden impulse
ii. Doesn’t require a deific command
iii. This is where the Hinckley test comes in: He knew
actions were legally and morally wrong by society.
But jury believed he couldn’t conform his conduct
to the requirements of the law. Jdx moved away
from MPC to common law because of this, wanted
to narrow it. Same reason McNaughton test came
into existence in the first place.
iii. State v. Crenshaw – D failed to meet elements of McNaughton test
because the muscovite beliefs and belief that his wife was cheating on him
were not delusions, prior commitments not proof of insanity at that time,
was able to calculate crime and seemed normal at the time, really just
insane jealousy.
-
Conspiracy
Inchoate crime - Can be convicted of conspiracy even if no one commits the target crime
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-
Doesn't merge - you can be charged with both conspiracy and the target crime, so long as
you meet the elements of both
- Attempt and conspiracy are separate, so you can be convicted of both if you meet the
elements of each
- Rationales for doctrine:
o Special dangers associated with group criminality
o Want to deter crime at earlier state
o Can more easily deter planned crimes
o MPC – people that plan are more culpable (cares about mens rea
Common Law - Elements of conspiracy – Conspiracy requires:
1. Actus reus: An agreement
a. Express agreement – can show by acts of physical communication
1) Words
2) Head nod
3) Handshake
4) Etc., just some physical sign
b. Implied agreement (from circumstances)
1) can be tacit agreement, inferred from circumstantial evidence
1. Tacit OK
2. Usually inferred from circumstances
3. Acting in concert can show agreement
a. A and B are both stabbing C; C dies
b. Are acting together, ie in concert to achieve common goal
of killing C so can infer agreement
2) But not usually sufficient if
1. Mere membership in gang or group usually not sufficient, but can
be evidence to help show agreement
2. Just present at crime scene with no other evidence of agreement
3. There are both evidence of agreement, but not sufficient
c. Both parties must agree
1) Bilateral Rule – rule under common law (our standard)
1. No agreement if only 1 person has the mens rea for conspiracy
2. Can’t have agreement w/feigned conspirator or UC govt agent
3. Have to be able to charge two people with having the mens rea to
carry out the crime and to conspire
a. State v. Pacheco – D is a sheriff and argues that he agreed
with a feigned accomplice so there was no agreement. You
need two people with same mens rea. Court agrees and D
gets off for not having a bilateral agreement. Purpose to
prevent group criminality
2) Unilateral Rule – MPC and some other jdx
1. Only need one party to have the mens rea, ie knowingly agree with
purpose to see the object of the conspiracy carried out and believes
other person has same mens rea
2. Can have agreement with feigned conspirator, UC officer
d. Differs with Accomplice liability b/c co-conspirator
1) Does not need to give any actual aid, agreement is sufficient
2) Does have to know of shared purpose, ie knows others are in conspiracy
2. Mens Rea (dual)
a. Intent to agree (knowingly join agreement) with
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b. Intent to commit a crime (purpose that crime is committed/purpose to carry out
target crime)
3. Overt act (in some jdx) by at least one member to further the conspiracy (required in
MCL, not required in traditional common law)
a. What is an overt act?
1) Any trivial act to get the crime off the ground
2) Mere preparation suffices
3) Doesn’t need to be an illegal act
4) But must be proven to carry out the illegal act
5) Act need not be central or illegal
6) Telephone call or meeting will suffice
b. Only 1 person needs to do the overt act, then all conspirators are responsible
c. Ensures that people aren’t convicted of thought crimes.
- Punishment - ranges from misdemeanor to level of target crime
MPC Approach - punishable because a person who entered conspiracy poses a greater threat of
actual social harm than a person who has not so agreed because they have demonstrated a firm
commitment to criminal activity
 Conspiracy merges with the crime
 Can’t be punishable for underlying crime and conspiracy
 Punishable the same way as target crime
 Crime must be the object
 Also conspiracy for intending to help others, not just intending to do the crime.






An agreement between to do or more people to commit a crime.
Separate offense from the target offense
o Don't need to actually succeed or get close to doing the crime you're conspiring to do
o Don't take a substantial step
Two mens rea and an actus reas
Inchoate crime - getting the person before they commit the crime they are targeting.
Different from attempt because:
o You require two people
o You get them much earlier
o It doesn’t merge
Can get someone for both conspiracy and attempt - just look at them separately.
Elements:
1. Actus reas - agreement
a. Everonye charged in fact made an agreement with one other person to do some
underlying crime
2. Dual Mens Rea a. the intent to agree - Knowingly joined an agreement
b.With the intent to commit a crime (purpose that the crime be committed)
3. + overt act by someone of the conspirators.
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