The Law Dictionary

Your Free Online Legal Dictionary • Featuring Black’s Law Dictionary, 2nd Ed.

Criminal Law (Keyed to Dressler)


  1. Introduction
    1. What is a crime?
      1. An act or omission and its accompanying state of mind, which, if shown to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community
      2. Crime = Actus Reus + Mens Rhea + Causation
        1. Criminal responsibility: a person is not guilty of an offense unless his conduct which must include a voluntary act, and which must be accompanied by a culpable state of mind (mens rea) is the actual and proximate cause of the social harm, as proscribed by the offense
        2. It is deeply rooted in our moral sense of fitness that punishment entails blame and that, therefore, punishment may not justly be imposed where the person is not blameworthy
      3. Punishment
        1. Felonies can involve death or imprisonment in state penitentiary for more than a year
        2. Misdemeanors can involve monetary fine and/or imprisonment in local jail (max. penalty less than 1 year)
        3. Violations/infractions – offenses that are so minor that incarceration is prohibited
      4. Criminal law punishes a social harm – the injury suffered involves a breach and violation of the public rights and duties due to the whole community, in its social aggregate capacity (see more in Actus Reus section)
      5. What is the difference between criminal and civil law?
        1. A crime causes social harm- the injury suffered involves a breach and violation of the public rights and duties due to the whole community, considered as a community, in its social aggregate capacity.
        2. The state is the prosecutor, acting on behalf of society
        3. Sanctions are harsher – deprivation of property, liberty and life
        4. Moral stigma attaches – judged based on your actions, i.e. restrictions on your freedoms when you commit a crime and it appears on your record
        5. Moral condemnation is the goal!
        6. Burden of proof is greater – beyond a reasonable doubt
          1. Reasonableness is unquantifiable in percentage terms, but requires that there is a substantial chance that the suspect committed the offense under investigation
          2. At the appellate level there is an inherent deference to the fact-finder
            1. COULD a reasonable jury have so found? If yes, then appellate court affirms. So even if the trial level decision was not right, the appeals court correctly decided the case (Owens v. State, pg. 14)


  1. Sources of Criminal Law
    1. Common Law (judge made law)
      1. Judicial decisions interpreting and elaborating on social norms and putting them into specific categories
      2. Helps to elucidate the law and its beginnings in the US (look back to old English law)
    2. Criminal Law Statutes
      1. Common law incorporated into statutes that define the elements and burdens of crimes
      2. When statutory law lacks sufficient specific definition, we get guidance from common law
    3. Model Penal Code
      1. American Law Institute compiled MPC over 10 years, beginning in 1952
      2. Attempted to standardize the law and reduce inconsistencies
      3. Most states have adopted portions of the MPC into their statutory law, and if is often looked to for interpretation and guidance
    4. Constitution
      1. Used for interpretation only
      2. No specific criminal rules, but it limits the laws of the states and guarantees certain rights
  • Basic Criminal Procedure
    1. Pre-trial procedure
      1. Report of the crime
        1. Less that ½ of all crimes are reported
        2. 50% are property crimes, most of the rest are assaults & drug offenses; serious offenses 7%
      2. Pre-trial investigation
        1. On-scene arrest: no investigation, caught red-handed
        2. Reactive investigation: in response to call, or can include wiretaps, interviews, etc.
        3. Proactive investigation: when police suspect criminal activity (fishing/sting operation)
        4. Prosecutorial investigation: using grand jury as investigative tool; used when witnesses won’t cooperate, evidence is in reams of paper, matter is sensitive to public
      3. Arrest
        1. Police must have probable cause to believe a person has committed a crime
        2. Full custody arrest or notice to appear; or, can use arrest warrant, but usually only if offender in another jurisdiction, can’t find offender, must enter dwelling, or police seek advice of prosecutor first
      4. Booking
        1. Take arrestee to station, search, book
      5. Post-arrest investigation
        1. Similar to pre-trial investigate, but can take fingerprints, DNA sample, photos, questions, etc.
      6. Decision to charge
        1. Reviewed by officer, then supervising officer, then prosecutor prior to filing; cannot file if:
          1. Insufficient evidence
          2. Witness problems
  • Due process problems
  1. Adequate disposition can be provided another way
  2. Interests of justice
  1. Reviewed by prosecutor after filing and prosecutor can change his mind (if changes his mind, file a motion called “nolle prosequi”)
  1. Filing of charge with magistrate
    1. Complaint is the accusatory instrument… if felony, it will change to an information or indictment
  2. Magistrate review
    1. Ex parte review (reviews evidence on her own) to ensure probably cause for continued detention, magistrate can direct prosecutor to release arrestee if the evidence is insufficient
  3. First appearance (arraignment on the warrant)
    1. This is when the arrestee who committed the crime becomes the defendant
    2. Defendant informed of rights and arranges a lawyer
    3. If misdemeanor, D can set date for trial
    4. Judge must set bail to guard against fight
  4. Preliminary hearing (FELONIES only) (∆ can waive this)
    1. Adversarial proceeding… must show probably cause to believe ∆ committed crime charged
    2. Magistrate binds case over for trial or orders charge dropped or reduced
    3. Accusatory instrument becomes information or indictment (Grand Jury)
    4. Usually plea bargaining starts now because defendant is aware of all the evidence that is being used against him
  5. Grand Jury
    1. Required in felony cases in 1/3 of states
    2. Makes sure there is sufficient evidence to bind case over for trial
    3. Grand jury not bound by magistrate’s decision at preliminary hearing (12-24 private citizens who decide by majority or super-majority) whether to indict, affirm and make it a “true bill”
    4. If GJ won’t indict, charges are dismissed
  6. Filing of indictment or information
    1. Prosecutor issues an information (for felonies, document setting out formal charges and basic facts relating to them), for filing with general trial court or GJ files indictments (for felonies) for filing with general court
  7. Arraignment on the information or indictment
    1. Now the D will be asked to enter a plea
    2. Most of these cases never get to trial because of plea bargains or nolle prosequi or pretrial motions
    3. Have plea bargains so we can get additional information from criminals about ongoing crimes and to save costs because DA’s and prosecutors are being overworked
    4. Some cases are too severe so they won’t allow a plea bargain (i.e. meth lab cases)
    5. Plea bargains are bad because prosecutors aren’t doing their job, they are just bargaining and people that are committing the same crimes are getting different bargain deals and sanctions
  8. Pre-trial motions
    1. Really important!! Can win the case with these!! (i.e. motion to dismiss for lack of jurisdiction, incorrect search warrant, wrong crime named or wrong location of crime named, improper search was conducted)
    2. If win pretrial motions then continue with plea-bargaining
    3. Obtained confession by being rough with the defendant and then defendant confesses – “fruit of the poisonous tree
  9. Trial and post-trial procedure
    1. Trial
      1. Similar to civil trial with additional rights accorded to defendant (right to a speedy trail, presumption of innocence until proven guilty, right to a jury trial for all felonies and misdemeanors which allow for imprisonment over 6 mos., right to an attorney, right to face your accuser)
        1. 6th Amendment: “All accused shall enjoy the right to a speedy and public trial, by an impartial jury”
      2. Very few felony complaints go to trial (maybe 4-8%)
      3. Jury rather than judge reaches final verdict
        1. Judge over jury because maybe jury may have an opinion of you in society, racial issues, serious crimes, complicated crimes, judges may be more sympathetic and imply less harsh sentences
        2. Can waive right to jury trial, though most felonies tried by jury, and most misdemeanors tried by judge alone
  • In order for the jury to be impartial, they must not be biased… in order to discover possible bias prior to trial, judges and attorneys examine (voir dire) prospective jurors
  1. Proof of guilt at trial
    1. “Proof Beyond a Reasonable Doubt” of every fact and element necessary to constitute the crime charged.
    2. Enforcing the Presumption of Innocence (innocent until proven guilty)
  2. Generally jury verdict must be unanimous
  1. Sentencing
    1. Usually this is up to the judge, who is constrained by statute, sentencing guidelines, precedent
    2. Sanctions include fines, probation, house arrest, incarceration in jail or prison
    3. In capital cases, question goes to the jury
    4. There are determinate and indeterminate (involves parole board) sentence
  2. Appeals
    1. Can appeal for errors in trial: errors in law, errors in instruction, evidence, incompetent counsel etc. (i.e. the judge misconstrued the law, judge gave instructions to jury, deciding a party had privilege or no privilege to speak at trial, attorney failed to show up for preliminary hearing etc.)
  3. Post-conviction remedies
    1. After all appeals exhausted
    2. Rare because usually available on constitutional grounds


  1. Theories of Punishment
    1. Utilitarianism – forward looking; punishment is justifiable only if it is expected to result in a reduction in crime or net benefit to society (punishment is in itself undesireable)
      1. Deterrence
        1. General deterrence
          1. Persuade community at large to forego criminal conduct in the future
          2. The greater the temptation and the smaller the chance of detection, the more severe the penalty should be
  • Criticism – potential to harshly punish one in order to deter the rest (using criminal as an ends to a means; justifies the punishment of an innocent person if it would do more good than harm)
  1. Individual deterrence
    1. Deter future misconduct by an individual by:
      • Incapacitation
        • Remove individual from society, taking away opportunity to commit crimes
      • Intimidation
        • Reinforce the consequences of future crimes
      • Reform / rehabilitation
        • Psychiatric care, addiction therapy, etc.
        • Criticisms – rehab doesn’t really work; by seeing criminals as needing treatment, rather than punishment, we remove them from the sphere of justice
  1. Denunciation
    1. Hybrid of utilitarianism and retributivism.
      1. Punishment is justified as a way of expressing society’s condemnation and relative seriousness of a crime
    2. Benefits:
      1. Educates individuals that the community considers specific conduct improper
      2. Channels community anger away from personal vengeance, maintains social cohesion, affects future conduct, stigmatizes offender serving retributive purposes.
  • Serves to maintain social cohesion
  1. Retributivism – looks backward
    1. Punishment simply because the individual has violated the social contract & should suffer for it (repay debt owed to society)
      1. Focuses on the crime itself, not the results of the punishment
    2. Assaultive retribution/public vengeance/societal retaliation: morally right to hate criminals; because the criminal has harmed society, it is right for society to hurt him back
    3. Protective retribution: punishment is a means, not of hurting criminals, but of securing a moral balance in society; if a person fails to follow society’s rules, he is benefitting from them without accepting the burdens (debt)
      1. Criminals upset the balance of burdens and benefits and should be punished to rebalance
    4. Victim vindication: reaffirms the victim’s worth in the face of the criminal’s challenge (which is that criminal is worth more which is why he should be able to get away with crime)
    5. Criticisms – senseless glorification of hatred and anger, based upon emotion not reason; does no real good to society; goal should be to reduce overall human suffering, not purposely cause more of it
  2. Case Illustrations
    1. Queen v. Dudley and Stevens (1884) – Cannibalism case [pg. 48]
      1. Punishment was both utilitarian and retributive
        1. Convicted them of murder, but then pardoned them
      2. People v. Du – Shoplifting case [pg. 51, 54]
        1. Du shot a customer she suspected of shoplifting
        2. Court decided she was guilty, but suspended sentence and placed her on probation
          1. Not a person who would be deterred from future crime if punished severely (util.)
            • 51 year old woman, non-criminal, aggravated by recent threats
          2. Proportionality of Punishment
            1. Punishment must be proportional to the crime
              1. Crimes that cause greater harm or are committed with a higher degree of culpability receive more severe punishment
              2. Punishment should not be more than is needed
            2. 14th Amendment
              1. “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
            3. 8th Amendment
              1. “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
                1. ie no death penalty for rape
              2. Case illustrations (three-strikes laws and harsh penalties):
                1. Rummell v. Estelle [pg. 83]
                  1. 2 felony convictions (fraud amounting to $108); 3rd offense, obtained a check by false pretenses for $120
                  2. Sentenced to life imprisonment as a habitual offender (eligible for parole after 12 years).
                    • 5-4, Supreme Court upheld the sentence, deferring to states in a non-capital case, and denying there’s a proportionality requirement in the 8th Amend.
  • Dissent offered factors to analyze disproportionality of sentence:
    • Gravity of offense vs. severity of sanction
    • Penalty imposed for same/similar offense in same jurisdiction (intrajurisdictional analysis)
    • Penalty imposed for same crime in other states (interjurisdictional analysis)
  1. Solem v. Helm [pg. 83]
    1. 7th conviction (passed a bad check for $100; in the past, convicted of 3 burglaries and DUI)
    2. Sentenced to life imprisonment without parole. 5-4, Supreme Court overturned the sentence as grossly disproportional, using factors from Rummel’s dissent
      • Said life without parole was too much, but life with chance of parole was okay
  • Distinguished Rummel because parole laws are way harsher in instant case
  1. Ewing v. California [pg. 81]
    1. California 3 strike statute: 1 prior “serious” or “violent” felony = 2x punishment; 2+ priors = greater of either [25 to life] or [3x term to life]
    2. Defendant gets third strike when he steals ≈$1200 worth of merch (prior 2 offenses were trespassing and robbery)
      • Sentenced to 25 yrs to life – cruel and unusual punishment? Does the deterrent effect make up for the injustice? (because previous attempts at more lenient punishment obviously did not work)
  • Majority held that the punishment was constitutional (strongly utilitarian view)
    • Proportionality between punishment and pattern of offenses, not the triggering offense
    • Is crime really “serious”? We look only at the triggering offense, not at prior strikes
  1. Harmelin v. Michigan [pg. 84]
    1. 1st time offender convicted for possessing 672g of cocaine
    2. Sentenced to life imprisonment under Michigan’s tough drug laws, where possession of anything over 650g is automatic life.
      • 5-4 Supreme Court upholds it.
      • They do not overrule Solem, but do say that only 1st prong of Solem should be applied, and one should proceed to 2nd and 3rd prongs only if the first prong fails
    3. Retributivist principles
      1. The punishment should be commensurate/proportional to the crime committed (death penalty for murder, property deprivation for theft, etc.)
    4. Utilitarian principles
      1. Punishment should be no more than is necessary to “get the job done”
        1. Dissuade the criminal from acting on criminal intent, or if this cannot be done, encourage the criminal to take the least violent/harmful means available



  1. Principle of Legality
    1. General
      1. Nulla crimen sine lege, nulla poene sine lege (There is no crime without law, there is no punishment without law.)
      2. A person may not be punished unless his/her conduct was defined as criminal before he/she acted.
        1. The essence of principle of legality is this prohibition on retroactive criminal lawmaking an on punishing for thoughts or moral wrongs alone
        2. Conduct must be defined before criminal acted as he did
        3. Strict enforcement, even at the risk of morally culpable persons escaping punishment
        4. Rationale: prevent arbitrary/vindictive use of law/promote justice; enhances individual autonomy; fair notice
      3. 3 interrelated corollaries to the legality principle
        1. The law must be clear and comprehensible to the reasonable person (vagueness, statutory interpretation)
        2. Criminal statutes should not “delegate basic policy matters to police, judges and juries on ad hoc or subjective basis.” (statute can not be so broad or vague that it lacks meaning and ultimately it is the police, judges and juries giving it content instead of the legislature)
        3. Strict construction: any uncertainty should be biased in favor of the accused (lenity doctrine, often no longer used)
      4. Prohibited conduct must be defined previously
        1. Commonwealth v. Mochan [pg. 92]
          1. Mochan charged with intending to “debauch and corrupt, and further devising and intending to harass, embarrass and vilify”
          2. Court: “Any act is indictable at common law which from its nature scandalously affects the morals or health of the community.” (Mochan convicted due to his moral culpability, even though there was no statute that prohibited what he did)
          3. Dissent: “we are making an unwarranted invasion of the legislative field when we arrogate that responsibility to ourselves by declaring now, for the first time, that certain acts are a crime…there is nothing to prevent our invasion of the legislative field except our own self restraint.”
        2. Keeler v. Superior Court [pg. 95]
          1. Guy sees his ex, who is pregnant, says he is going to stomp it out of her, then knees her in abdomen; baby dies (75%-96% viable before incident); man charged with murder (unlawful killing of a human being, with malice aforethought) but what is a “human being?”
          2. Old common law definition said it had to be “born alive”; State urges an update of definition to include a fetus that, if premature, would be viable
          3. Although the court agrees, they cannot make new law; people need fair warning of the act which is made punishable as a crime; to make a new statute retrospectively would deprive him of due process
        3. The value of statutory clarity
          1. Vague statutes offend constitutional values
            1. Laws must give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so as not to trap the innocent by not providing fair warning
              1. Factors affecting clarity:
                • The purpose of the statute (the societal interest at stake in the legislation)
                • The extent to which the statutory ambiguity was necessary to further the legislative goal
                • The impact of the statute on the protected rights of the individual (legislation needs to be vague enough to encompass all the conduct the legislature wants to prohibit without getting into minutia, and it needs to be specific enough to not be meaningless)
              2. Imprecise normative standard: if it touches on fundamental constitutional rights (ie 1st Amend), courts apply a strict standard
                1. When vague statutes abut upon sensitive areas of basic freedoms, it inhibits the exercise of those freedoms (leads people to steer far wider of the unlawful zone than if boundaries were clearly marked)
                2. But are much less likely to find a statute vague if constitutional rights are not at stake – a statute is not invalid simply because it requires conformity to an imprecise normative standard, such as a requirement that a person not act “negligently” or that he not harm others by “cruel or inhumane treatment”
              3. Statutes cannot be overly broad or vague so as to allow for arbitrary and discriminatory law enforcement, potentially punishing innocent conduct
                1. g. overly broad vagrancy statute, ruled unconstitutional in Papachristou (pg. 110, n. 8)
                2. Kolender v. Lawson Rule: A statute or ordinance must establish minimal guidelines to govern law enforcement (sup ct)
                  • The Due Process clause forbids the enforcement of any statute that, due to vagueness in language, vests virtually complete discretion in the hands of the police to determine whether the suspect has satisfied its requirements
                3. In Re Banks [pg. 105]
                  1. Peeping tom statute – ∆ claims it would prohibit much activity it is not meant to prohibit, such as simply glancing toward a window while walking by; reasonable men could differ as to its application
                  2. Judgments regarding vague state statutes “should be judged in the light of its common law meaning, its statutory history and the prior judicial interpretation of its particular terms.”
  • Ruled that the statute was sufficiently clear to warn against such activities with wrongful intent
  1. Lenity doctrine
    1. When the language of a statute is clear and unambiguous, there is no room for judicial construction, and the courts must give the statute its plain and definite meaning; if a statute is unclear and ambiguous, court must ascertain: intent of legislature, purpose appearing from statute taken as a whole, phraseology, words ordinary or technical, mischief sought to be remedied, preamble, title. etc.
    2. If statute has conflicting interpretations, it should be construed in favor of the accused; this doctrine itself is strictly construed (by SC and some other courts); in essence, this doctrine serves as a tiebreaker – it only comes into play if there truly is a tie – two or more equally reasonable interpretations of the statute
      1. Some states have abolished this rule
      2. MPC does not recognize the lenity principle: statutes should be construed according to their “fair import” and ambiguities should be resolved so as to further the general purpose of the code and the special purpose of the particular provision involved
    3. Statutory Interpretation
      1. Muscarello v. United States [pg. 120]
        1. Is “carries a firearm” limited to carrying on the person, or does it include in a vehicle? Majority rules broad def’n
          1. Quoted dictionary, literature, internet databases, and other court interpretations (of different, but related, words)


  1. Definition
    1. The physical or external part of the crime… subject to limited exceptions, a person is not guilty of a crime unless his conduct includes a voluntary act
    2. Actus = voluntary physical action; Reus = expresses that this fact results in a proscribed harm (causation)
      1. Can be the ∆’s voluntary act, or the ∆’s omission (failure to act when he has a duty to act)
      2. One is responsible only for those consequences that are caused by his actions
      3. Rationale: non-criminalization of thoughts; the actus reus component of a crime ensures that nobody is punished for their thoughts, no matter how morally reprehensible; even a “mental plan” to commit the crime is not punishable
    3. Voluntary Act – volitional movement
      1. General
        1. A self-controlled physical act that is performed while conscious
        2. Subject to a few limited exceptions, a person is not guilty of a crime unless his conduct includes a voluntary act
          1. Prerequisite to criminal responsibility, and an element of every criminal offense (implicit element of every statute)
          2. Involves the use of the human mind, whereas an involuntary act involves the use of the human brain, without the aid of the mind (the law more often treats habitual acts as voluntary ones, though MPC does not)
        3. Legality – we cannot punish for thoughts alone; in general (with the exception of omission when there is a duty to act), there must always be some illegal action in order to justify punishment
        4. MPC 2.01(1)
          1. A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable
          2. Comments list bodily movements that are involuntary: reflexes, convulsions, conduct during unconsciousness, sleep, or due to hypnosis, as well as any conduct that “is not a product of the effort or determination of the defendant, either conscious or habitual”
        5. Martin v. State [pg. 128]
          1. Drunken ∆ taken by police to a public highway, then arrested for being in a public place manifesting a drunken condition; court reversed conviction, because he did not act voluntarily
        6. Concurrence and Burden of Proof
          1. No need to prove that ∆’s every act, or even the last act, was voluntary, just that ∆’s conduct included a voluntary act (a part of the conduct that was a proximate cause of the harm)
            1. Proof of such a voluntary act must be beyond a reasonable doubt
          2. Broad or narrow time frame is in the discretion of the court, but in finding within a defined time-frame a voluntary act, court must focus on the relevant conduct (the conduct performed with requisite mens rea that actually and proximately caused the social harm)
            1. ie in Decina (see involuntary section, below), court chose a broad time frame in order to consider ∆’s decision to drive (narrow time frame would have found the act to be involuntary)
          3. Rationales
            1. Retributivist: no deterrent value in punishing for involuntary acts
            2. Utilitarian: no moral blameworthiness if act was not voluntary
          4. Possession
            1. Courts typically interpret possession statutes to require proof that ∆ knowingly procured or received the thing possessed, or that he failed to dispossess himself of the object after becoming aware of its presence
            2. Possession is an passive, “inchoate” crime (partial/incomplete… prevents the next level of crime)
              1. e. possession of tools for burglary is a crime to prevent burglary
            3. Not guilty if contraband was placed on ∆ and he did not have sufficient time to terminate possession once he learned of its presence
            4. 2 types:
              1. Actual possession – knowingly in possession, having it on your person
              2. Constructive possession – knowingly in a position or having the right to exercise dominion (care and control) over it and the ability to guide its destiny
              3. Examples: you have actual possession of your own car but whoever is holding the key has constructive possession because they can take physical possession at any time; also, credit card theft: you have actual possession but thief stealing number has constructive possession
  • Involuntary acts (as a defense)
    1. Automatism as a defense (burden is on ∆)
      1. Denial of actus reus – a loss of physical control of actions can sometimes be a defense (see Caddell)
        1. ie sleepwalking, hypnotism, bump on head, epilepsy
      2. Actus reus defense – goes to the element of the crime
      3. Exceptions
        1. Intoxication (voluntary drunkenness… even though you are drunk and judgment is affected, you are acting voluntarily) (see Utter)
        2. Self-induced automatism
        3. Amnesia (“I can’t remember doing it” is not the same as involuntary)
      4. MPC 2.01(2) – The following acts are involuntary:
        1. Reflex/convulsion
        2. Bodily movement during unconsciousness/sleep
        3. Conduct during hypnosis
        4. Bodily movement that is not an effort or determination of the actor, either conscious or habitual
      5. Case illustrations
        1. State v. Caddell [handout, not in book]
          1. ∆ accused of kidnapping a 14yo girl, driving to wooded area, attempting to have intercourse, then running away
          2. ∆ claimed to remember nothing, due to a previous car accident; was it a conscious and voluntary act?… did he will his body to do these things, or did his body act unconsciously?
          3. The will is the essence of an act…an act committed while one is unconscious is no act at all
          4. Policy: anyone can say they forgot, and the primary evidence we have for voluntary action is someone engaging in an act
            1. Prosecution cannot bring up and shoot down every possibility, so perhaps appropriate to place a heavier burden on defendant.
            2. Once the defense has raised some doubt as to the voluntariness of his act, the prosecution can overcome that doubt and still meet the burden of persuasion, which is the final burden
          5. State v. Utter [pg. 130]
            1. Man killed son while drunk, claimed he is not guilty because he acted unconsciously
            2. Court ruled that a voluntarily-induced unconscious state was not a defense
          6. People v. Decina [pg. 134, n. 6]
            1. Driver of a car had a seizure and killed 4 kids; ∆ claimed he had no control of actions while having seizure
            2. Court denied motion to quash the indictment… even though actions were not voluntary, ∆ knew of his condition and that such events could happen and still chose to operate a vehicle
          7. Omission (negative act)
            1. General
              1. A failure to act, when there is a duty to, leading to harmful results
                1. Subject to a few limited exceptions, a person has no criminal law duty to act to prevent harm to another, even if the person imperiled may lose her life in the absence of assistance
              2. MPC 2.01(3): Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:
                1. The omission is expressly made sufficient by the law defining the offense; or
                2. A duty to perform the omitted act is otherwise imposed by law
              3. Rationale: would lead to a lot more criminal prosecutions if people were responsible for omissions
                1. Line drawing: who to prosecute? All 38 people in Kitty Genovese’s case? Mens rea proof problems; also, the law should prevent people from actively causing harm, but it should not compel people to benefit others
              4. Duty
                1. Must be a duty to act – a moral duty to act does not necessarily create a concomitant legal duty to act
                  1. Bright line rule: as soon as the state gets involved, there is a legal duty (legally recognizable relationship imposes obligations, ie marriage)
                  2. Actor must, in all omission situations, have
                    1. The capacity to provide assistance (physical ability to act without danger to the actor himself), and
                    2. Failed to perform the duty with the requisite mens rea, and
  • Omission must be the immediate and direct cause of the social harm
  1. Subject to exceptions below, a person has no criminal law duty to act to prevent harm to another; in general, a failure to act cannot constitute grounds for culpability, unless there is a legal duty to act
    1. Statutory duty
      1. Bad Samaritan laws, taxes, teacher’s/doctor’s duty to report abuse, duty to carry insurance if driving
    2. Status relationship (common law)
      1. Spouses, parent/child, master/servant
      2. Complications in same sex relationships where people are being prevented from married by the state
  • Generally, court will not find a status relationship – conservative interpretation of status relationship (two ppl in a relationship = no status relationship, see Beardsley)
  1. Contractual obligation
    1. A duty to act may be created by implied or express contract
      • ie an agreement to care for an infirm stranger, care for mentally or physically disabled parent, doctor/patient, babysitter, teacher
    2. Breach of such an agreement could lead to criminal responsibility for an ensuing death
  2. Where the omitter has voluntarily assumed the care of another
    1. One who voluntarily commences assistance of another in jeopardy has a duty to continue to provide aid, at least if a subsequent omission would put the victim in a worse position than if the actor had not initiated help (possibly increased the risk by letting everyone else think that we’re going to rescue)
  3. Where the omitter has created the risk
    1. A person who wrongfully harms another or another’s property, or places them in jeopardy of harm, has a common law duty to aid the injured or endangered party; duty to act could arise in non-culpable risk creation, but wrongful state of mind needed
    2. Even when no mens rea attached to the creating of the risk – even if not intended; if the person causes the risk and omits to offer aid, then he is culpable
  • Ex: someone smoking a joint and accidently sets curtains on fire but doesn’t alert house owner or call the fire department, then they are culpable for resulting injuries
  1. People v. Beardsley [pg. 136]
    1. Man cheated on wife w/ prostitute, she took drugs, he left her and she died of overdoes; did man have a duty?
    2. Trial court convicted, appellate overturned (no status relationship, so no duty)
      1. Duty neglected must be a legal duty (ie marriage), not simply a moral duty
    3. Distinguishing Acts from Omissions
      1. Barber v. Superior Court [pg. 142]
        1. Man in a “brain-dead” state, no circulatory or respiratory function except by machine; docs pulled the plug with the family’s consent; docs charged w/ murder for omitting to keep patient alive
          1. Is a person “dead” when heart/lungs stop functioning? Brain controls both, so does brain-dead = dead?
          2. Is this about the act of unplugging life support, or omitting to continue providing care?
        2. Once treatment determined to be futile, no longer a duty to treat; docs not guilty
      2. Social Harm
        1. Defining
          1. Social harm: the negation, endangering, or destruction of an individual, group, or state interest which is deemed socially valuable
          2. Social harm may consist of: wrongful conduct or wrongful result or both + attendant circumstances
        2. Types of offenses
          1. Result crimes
            1. Law punishes because of an unwanted outcome (harm) resulting from one’s acts or omissions (such as the death of another person)
            2. Outcome is social harm (although harmful conduct is not a requirement)
              1. e. the loss suffered from a murder or other violent crime is experienced not only by the immediate victim, but also by society (i.e. harm is primarily a dead person, but also lost security)
            3. Conduct crimes
              1. The law prohibits specific behavior such as driving under the influence
                1. Outcome is also social harm (although harmful result is not a requirement)
                2. Endangerment of social interests is harmful to society (e.g. lost sense of security); tangible harm to persons or property not required
              2. Combined result and conduct crimes
                1. Charged based upon the conduct and the result
                2. ie a statute may define 1st degree murder as the killing of another human being by means of a destructive device, explosive, poison or torture – includes result brought about by a certain kind of conduct
              3. Attendant circumstance
                1. Condition that must be present in conjunction with some prohibited conduct or results, in order to constitute crime
                  1. e. for Common law Burglary: the breaking and entering of the dwelling house of another at night with the intention to commit a felony therein
                    1. Actus reus/conduct = breaking and entering
                    2. Mens Rhea = intention to commit a felony (if the person did not intend to break & enter, no mens rea)
  • Attendant circumstances = dwelling house of another, at night
  1. Constitutional Limits
    1. Various constitutional provisions limit the extent to which a legislature may proscribe “social harm”
    2. For example, the 1st Amendment bars a state from criminalizing most forms of speech
      1. Even where some social harm may occur – such as some persons may find a given form of speech offensive – the law deems that the integrity of constitutional rights outweighs the society’s interest in preventing the harm


  1. General Principles
    1. Definition
      1. A “guilty mind; a guilty or wrongful purpose; a criminal intent”
        1. Determines both the culpability and the grading of punishment
      2. A person is not guilty of a crime unless prosecution proves not only actus reus, but mens rea
      3. Exam buzz words: “free will violation of the social contract”
    2. Rationale
      1. Utilitarian
        1. One who causes accidental harm need not be reformed; cannot be deterred unless one knows the act is wrong (also, accidents cannot be deterred)
      2. Retributive
        1. Belief in individual choice, punish those who do evil (unjust to punish those who commit evil by accident rather than by choice)
        2. Human dignity: society should not punish someone for acts committed without a culpable mind or by accident
        3. Stigma of criminal conviction should only apply if someone has a culpable mind
      3. Elemental vs. Culpability definitions
        1. Culpability (broad) definition (old)
          1. In early development, mens rea was defined in terms of malice, vicious will, evil mind, or moral blameworthiness
            1. Sufficient to prove that ∆ acted with a generally culpable mind
              • ∆ is guilty if he commits the social harm of the offense with any morally blameworthy state of mind
              • No need for actual intent to cause the specific harm…just the act that resulted in the harm and he had generally immoral intentions
            2. Elemental (narrow) definition (current)
              1. Particular mental state in the definition of the offense (intentionally, knowingly, etc)
                1. Looks at the mental state associated with eachparticular social harm element of the crime; actor could have a generally blameworthy/culpable state of mind, but not meet the state of mind required by the statute (ie if person has reckless state of mind, he will not be convicted of intentional homicide)
              2. Changing definition – Case illustration: Regina v. Cunningham [pg. 151]
                1. ∆ breaks gas meter to steal change, resulting gas flow injures a neighbor
                2. Trial judge ordered jury that malice should be equated to wickedness
                3. Appellate court determined that malice requires either:
                  1. An actual intention to do the particular kind of harm that in fact was done, or
                  2. Accused has foreseen the kind of harm that might be done, and yet has gone on to take the risk of it
                4. Common law basic definitions and illustrations
                  1. Intent
                    1. General
                      1. ∆ intentionally causes social harm if:
                        1. It is the desire/objective of the ∆ to cause the social harm or commit the act (for this, it does not matter how likely it is that the harm will occur; the desire for the result is what matters), OR
                        2. If it is virtually certain that the social harm will occur as a result of the conduct (for this, ∆ need not actually want the social harm to occur if it is virtually certain to occur)
                      2. Subjective fault is required (wrongful state of mind)
                      3. Intent can be inferred from the surrounding circumstances (∆ claims no intent, but intent can be inferred)
                      4. Difference from MPC – MPC does not include virtual certainty (includes that in “knowingly”)
                    2. Distinguishing intent from motive
                      1. Some offenses (specific intent) by definition require proof of specific motive (ie larceny – “intent to steal” – motive for committing the actus reus of the offense)
                      2. Motive relevant in claims of defense = his motive for an intentional action (killing someone) was self-defense
                      3. Relevant in sentencing – mitigation if good motive for wrongful conduct
                    3. Transferred intent (no significant differences between CL and MPC)
                      1. We attribute liability to a ∆ who, intending to kill or injure one person, accidentally kills or injures another person instead… the law transfers the actor’s state of mind regarding the intended victim to the unintended one
                        1. Applies in cases of “bad aim”… if we intend to create one harm but another is harmed, then we still should allow the mens rea of one harm to transfer to the other
                        2. Rationale
                          • Mens rea element is met for the actual harm, even though the harm was not intended for that person
                          • The resulting harm to society is the same as if ∆ accomplished what he had initially intended
                        3. Case illustration: People v. Conley [pg. 153]
                          1. Even though ∆ had the intent (mental element) to hit A instead of B, his intent is transferred to B and he is convicted
                            • Had the mens rea to hit and injure someone (doesn’t matter who), and the actus reus of hitting B… MR+AR = crime
                          2. Does not apply when:
                            1. Social harm is of a different type than was intended (i.e. property dam v. personal injury)
                            2. Intended harm occurs and additional harm also occurs (jurisdictions split; some states say intent is “used up” when bullet hits first target, others say if it passes through and hits another the intent transfers)
  • Statute prohibits it (mayhem or cases with special victim like President)
  1. Misidentification cases (meant to shoot V, got confused and shot V’s twin… the physical body ∆ intended to shoot actually gets shot, so we don’t need transferred intent)
  1. Note: transferred intent can also apply to justifications/defenses (ie ∆ accidentally kills someone while trying to justifiably defend himself against aggressor; look at state of mind at the time of the firing of the gun… while it was an intentional killing, it was a justifiable one, and although the result itself was unintended, because of our focus on mens rea, the justification should follow, and ∆ is not held culpable)
  1. Willfully
    1. An intentional violation of a known legal duty or a purpose to disobey the law
    2. Often used synonymously with “intentionally”
  2. Knowledge
    1. A person has knowledge of a material fact if
      1. He is aware of the fact/circumstances (actual knowledge) or
      2. He correctly believes that the fact/circumstance exists (correct inference)
    2. Awareness of attendant circumstances is sometimes required as an element of an offense
      1. Usually, the tricky parts are related to attendant circumstances
        1. ie ∆ admits knowledge of entry into a house, but argues that he did not know it was the “dwelling house of another”
        2. What did the ∆ actually know? Is it enough to say that a reasonable person would have known? We can look at the ∆’s past circumstances, what ∆ has done in the past, what would the average person have done, etc. (we can use all these to construct what we might believe of the defendant’s conduct/state of mind; it is a subjective element, but we may need to use objective analysis to determine what the ∆ believed/knew)
      2. Willful blindness (WB) – deliberate ignorance
        1. In common law
          1. General rule is that:
            • ∆ must be aware of high probability that the circumstances exist, and
            • ∆ must deliberately fail to investigate to avoid confirmation of the facts
          2. Most states have adopted some version of WB, if not statutorily then jurisprudentially (but not all)
        2. In MPC §2.02, subsections (2)(b(i) and (7)
          1. More like the minority opinion in Jewell
          2. WB can be established if ∆ is aware of a high probability that the circumstances exist, unless he actually believes (difference from CL) that the circumstances do not exist
            • Doesn’t matter if that belief is reasonable; must acquit if there is actual belief, reasonable or not
          3. Case illustrations
            1. US v. Jewell [not in casebook; on Blackboard]
              • ∆ drove marijuana across border, not having actual knowledge of its existence in car
                • Had a strong suspicion MJ was in vehicle, but deliberately avoided finding out
              • Majority: ∆ had knowledge; consciously avoiding actual knowledge to escape culpability is the same as knowledge
                • Historically, there is authority to equate deliberate ignorance with culpable knowledge in circumstances where it can almost be said the ∆ actually knew, but refrained from getting final confirmation
                • “No legitimate interest of an accused is prejudiced by such a standard, and society’s interest in a system of criminal law that imposes sanctions upon all who are equally culpable requires it.”
                  • In order for criminal law to work, we need to stretch it this way (policy).
                  • We’ve stretched it in other areas; we’ve done it before.
                  • Here ∆’s lack of knowledge is solely and entirely a result of his conscious purpose to avoid learning the truth
                • Reasonable person standard?
              • Minority (useful for discussing policy on exam)
                • It is not appropriate to substitute one state of mind for another (recklessness for knowledge)
                  • Not a keen enough inquiry into ∆’s mind
                • ∆ must be subjectively aware of high probability of the truth; deciding that everyone else would have been aware in ∆’s position is not sufficient, if in fact ∆ did not know
                  • And what constitutes a “high probability”?
                • True ignorance, no matter how unreasonable, cannot justify liability when statute requires knowledge
  1. State v. Nations [pg. 165]
    • Club owner hired a 16-year-old to dance for tips
      • Trial court convicted of endangering the welfare of a child “less than 17 years old”
      • ∆ claimed she didn’t know the girl was underage
    • Holding – case reversed (prosecution in trial did not prove actual knowledge)
      • Prosecution only proved that ∆ acted recklessly, not knowingly (proved that ∆ knew of the risks and disregarded them)
        • Recklessness is essentially the same as WB, but this state had no WB doctrine; recklessness is not the same as knowledge, but in WB jurisdictions, recklessness is essentially equated with knowledge
      • US v. Heredia
        • ∆ driving aunt’s car across border with her mom; car smells funny and mom has lots of $
        • ∆ didn’t become suspicious until after last place to pull over before border – should we hold her culpable?
  1. Recklessness (subjective fault – ∆ was in fact aware)
    1. Conscious disregard (s) of a substantial and unjustifiable risk of which he is aware (requires proof of actual awareness, unlike negligence)
    2. Recklessness exists when the probability of the harm occurring multiplied by the magnitude of the loss is greater than the burden on the ∆ (R = B < P x L)
      1. Using this definition takes away the necessary subjectivity
      2. Almost all states have now adopted the MPC version
    3. Negligence (objective standard – should have been aware)
      1. A person is criminally negligent if he takes a substantial and unjustifiable risk of causing the social harm that constitutes the offense charged
      2. Criminal negligence requires a gross deviation (substantial risk, not just unjustifiable) from the standard of reasonable care
      3. Three factors for determining whether a reasonable person would act as the ∆ did:
        1. The gravity of harm that foreseeably would result from the defendant’s conduct
        2. The probability of such harm occurring
        3. The burden to the defendant of desisting from the risky conduct
      4. Recklessness should not be equated with criminal negligence (recklessness = knew the risks and disregarded, negligence = should have known the risks but didn’t)
      5. Policy/rationale for punishing negligence:
        1. Utilitarian = general deterrence
        2. Retributivist = culpable indifference to the rights and interests of others
      6. General and Specific Intent Crimes (Common Law… NOT in MPC)
        1. Specific intent crime
          1. Crime in which the definition of the crime:
            1. Includes an intent or purpose to do some future act, or to achieve some further consequence (i.e. a special motive for the conduct), above and beyond the mens rea required for the actus reus itself; or,
            2. Provides that the actor must be aware of a statutory attendant circumstance (ie receiving stolen property with the knowledge that it is stolen)
          2. Beyond proving that the ∆ had the general intention of commit the illegal act, the prosecution must prove that the ∆ had intent to achieve a specific goal or have a specific awareness in addition to the intent to commit the illegal act itself (goes beyond the mens rea to commit the actus reus of the crime)
            1. e. burglary = trespassory breaking and entering of the dwelling of another at night with an intent to commit a felony therein (mens rea of intent to break and enter without mens rea of intent to commit a felony = no conviction for burglary)
            2. e. larceny = unauthorized taking and removal of the personal property of another by an individual who intends to permanently deprive the owner of it (intent to take property without intent to permanently deprive = no conviction for larceny)
          3. Specific intent can come from (1) attendant circumstances, (2) future conduct, or (3) a motive
        2. General intent crime
          1. Actus reus of the offense was performed with a morally blameworthy state of mind
            1. Blameworthy state of mind needed (intent in the broad/culpability sense of mens rea)
          2. Intent goes to the AR, not some other act like with specific intent crimes
            1. Can be convicted even if the ∆ did not know the act was illegal
            2. Can be convicted even if the ∆ did not know the harm would result from the act
  • ie battery = intentional application of unlawful force upon another (mens rea goes to the actus reus itself, not to some further goal)
  1. MPC has abandoned this distinction because of its complexity but at common law, and even in many mostly MPC states, this distinction can be crucial… it can be the difference between allowing and prohibiting certain defenses (but if you have an MPC jurisdiction on the exam, don’t have to make the distinction)
  • Model Penal Code (2.02) basic definitions and illustrations – mens rea must apply to every element of crime
    1. Purpose (s): a person acts purposely with respect to a material element of an offense when:
      1. If the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and
      2. If the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist
    2. Knowledge
      1. Definition: a person acts knowingly with respect to a material element of an offense when:
        1. 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
        2. 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
      2. Case illustration – State v. Nations [pg. 165] (see CL section above for application of willful blindness)
        1. ∆ owned a club & hired a 16-yr-old to dance for tips
          1. Convicted of endangering the welfare of a child “less than 17 years old”
          2. Claimed she didn’t know girl was underage
        2. Holding – prosecution in trial did not prove actual knowledge; case reversed
      3. Willful blindness
        1. WB can be established if ∆ is aware of a high probability that the circumstances exist, unless he actually believes (difference from CL) that the circumstances do not exist
      4. Doesn’t matter if that belief is reasonable; must acquit if there is actual belief, reasonable or not
    3. Recklessness: a person acts recklessly with respect to a material element of an offense when he:
      1. Consciously disregards (sub) a substantial and unjustifiable risk (obj) that the material element exists or will result from his conduct
      2. 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 (o)
    4. Negligence (o): a person acts negligently with respect to a material element of an offense when:
      1. He should be aware (s) of a substantial and unjustifiable risk (o) that the material element exists or will result from his conduct
      2. 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 (o)


  1. Problems in statutory interpretation
    1. General
      1. A single mens rea term modifies each actus reus element of the offense, absent a plainly contrary purpose of the legislature
      2. If no specific mens rea required, then some form of culpable state of mind is required (negligently, purposely, recklessly, knowingly)
    2. Case illustration – Flores-Figueroa v. United States [pg. ]
      1. Illegal citizen presented unlawful ID to his employer
        1. Claims he was unaware that the ID belonged to another person (thought it was simply a fake)
      2. Statute: aggravated identity theft requires 2 year imprisonment if person “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.”
      3. Issue: does the statute require the gov’t to show that ∆ knew the ID possessed belonged to another person?
        1. Does the word “knowingly” apply to “means of identification of another person”, or does it only apply to “transfers, possesses, or uses, without lawful authority”?
      4. Holding: Yes, statute requires knowledge that the ID belonged to another person for a conviction of aggravated identity theft
        1. Legislature has a definite purpose in making this statute “knowingly” – harsher punishment for real identity theft (if they wanted no distinction between using false id docs and using false id docs that belong to another person, they wouldn’t have included “knowingly” at all)
        2. MPC provides that when it is not clear which element of the crime the mens rea applies to, it applies to all elements of the offense
      5. Strict liability offenses
        1. General principles
          1. Strict liability crimes are those that require no mens rea
            1. Since mens rea is fundamental to notions of wrongdoing and culpability, strict liability crimes are aberrant
            2. Even if mens rea isn’t put into the legislation, we often have a presumption that mens rea is required
          2. Common law – Factors that support a strict liability interpretation of a crime
            1. These are not malum in se crimes (moral offense) derived from common law, but malum prohibitum (not a moral wrong) crimes prohibited in the interest of public welfare
              1. There is no moral culpability, we punish only to maintain order and safety
              2. Administrative character unrelated to questions of personal guilt
  • Crimes where regulation of social order is more important that punishment of wrongdoer
  1. Usually involves a relatively small fine and rarely involves imprisonment
  2. Examples: traffic violations, bigamy
  3. Public welfare offenses: conduct that, although not morally wrongful, could gravely affect the health, safety, or welfare of a significant portion of the public
    • Regulate dangerous products
    • Heighten duties of those in certain industries or activities that affect public health, safety, and welfare
    • Have no mental element, and consist only of forbidden acts or omissions
  4. Legislative intent and policy clearly indicates strict liability or would be undermined by a Mens Rea requirement
  5. The standard imposed by the statute is reasonable (ie reasonable to be more careful with explosives)
  6. Penalty is small (fine, not imprisonment)
  7. There is no moral stigma attached to the crime
  1. Often criticized and rejected by most modern scholars
    1. Utilitarian – does not deter since the ∆ is often unaware of their violation
    2. Retributive – ∆ doesn’t really deserve punishment when they are unaware what they are doing is wrong
      1. Subjects ∆ to social stigma without them being morally blameworthy
    3. Includes some crimes with severe penalties
  2. Defenses to strict liability
    1. I didn’t do it, or what I did is not encompassed by the statute
    2. This was never intended to be a strict liability crime (legislature intended a mens rea, but forgot to add one)
      1. Given the nature of the crime, or the consequences, enforcing this as a strict liability crime violates our constitution or our fundamental notions of due process and therefore a mens rea requirement should be read into the statute
    3. MPC
      1. Does not recognize strict liability, but has offenses termed “violations”
    4. Case illustrations
      1. Staples v. United States [pg. 177]
        1. Man arrested for violating Nat’l Firearms act for possessing a firearm capable of firing automatically without registering it; claimed he did not know it was modified to be capable of automatic fire
        2. Majority – not a strict liability crime
          1. Gun ownership is prevalent, generally conducted safely and innocently, and should not necessarily alert the owner to strict regulation; we should avoid construing a statute to dispense with mens rea where doing so would criminalize a broad range of apparently innocent conduct (guns are not inherently dangerous when used safely)
          2. Potentially harsh penalty (10 yr in prison) indicates that Congress did not intend to eliminate mens rea
        3. Minority – is a public welfare statute and thus a strict liability crime
          1. Gun of the type in this case is not the kind of gun owned by most American; this kind of gun is particularly dangerous
          2. Considered the statute to be one of public welfare, & gave three factors to determine public welfare offenses:
            • Regulate dangerous products
            • Heighten duties of those in certain industries or activities that affect public health safety, or welfare
            • They have no mental element and consist only of forbidden acts or omissions
          3. Garnett v. State [pg. 186]
            1. Mentally retarded man (20yo) accused of 2nd degree rape (intercourse between a person under 14 and a person at least 4 years older)
              1. Had consensual sex with a 13yo, who he believed to be 16
                • Girl and her friends had told him she was 16
              2. Holding – ∆ found guilty, deciding that this was a strict liability offense
                1. Court decided that the commission of an immoral act is enough to establish the requisite blameworthiness for conviction (see the moral wrong doctrine in mistake of fact, below)
                2. Also justified ruling by noting that if legislature wanted a mens rea component, it would have included it in writing the law
              3. Mistake and Mens Rea
                1. Mistake of fact
                  1. General
                    1. Mistake of fact may exculpate if it undermines the moral basis for punishing the ∆ (i.e. if he didn’t really know what he was doing, or that what he was doing was wrong, no sound basis to punishing him)
                    2. Mistakes of fact must be analyzed in relation to what they do to the ∆’s mens rea (given the mistake of fact, did ∆ possess the requisite mens rea?)
                    3. Not an affirmative defense (does not require proof but it does introduce doubt); can be used with other defenses like self defense (circumstances as the ∆ believed them to be… self-defense would still be available even if ∆ mistakenly believed that he was in imminent danger)
                  2. MPC – elemental approach [2.04(1)]
                    1. ∆ punished for circumstances as the ∆ believed them to be even if ∆ actually committed the greater offense
                    2. Elemental requirement – the intent attaches/applies to each element of the crime, so ∆ is not guilty if he lacks the mens rea for any element of the crime
                    3. Legal wrong doctrine [2.04(2)]
                      1. The defense of mistake-of-fact is not available if the ∆ would be guilty of another offense, had the circumstances been as he supposed
                      2. In such cases, contrary to CL, the Code only permits punishment at the level of the lesser offense
                    4. Common Law – division between specific and general intent crimes
                      1. For specific intent crime
                        1. Any mistake that affects the mens rea (no matter how reasonable, as long as the belief is honestly held) will relieve culpability – mistake must negate the specific intent portion of the offense

2. For general intent crime

  1. The mistake negating the mens rea must be reasonable in order to acquit the ∆; an unreasonable mistake of fact will not be a successful defense (rape)
  2. Moral wrong doctrine
    • One can make a reasonable mistake regarding an attendant circumstance and yet manifest a bad character or otherwise demonstrate worthiness of punishment
    • The rule is generally that there is no exculpation for mistakes whereif the facts had been as the ∆ believed them to be, his conduct would still be immoral (∆ knew he was doing something bad, even if he thought it was legal)
    • Heavily criticized and rarely used anymore (violates the principle of legality)
    • Regina v. Prince [pg. 197] (1875)
      • It was illegal to take a girl under 16yo out of the possession and against the will of her parents
        • Man took a 14yo girl, reasonably believing her to be 18
        • His reasonable mistake wasn’t exculpatory b/c taking an 18yo was considered immoral, even though it wouldn’t have been illegal
      • Legal wrong doctrine (less extreme version of the moral wrong doctrine)
        • There is no exculpation for mistakes where, if the facts were as the ∆ thought them to be, his conduct would still be illegal
        • Often this means that a ∆ possessed the mens rea for committing a lesser offense, but the actus reus was associated with a higher offense
        • Under this doctrine, the ∆ is guilty of the higher offense in such circumstance (contrary to MPC)
  1. Strict liability
    1. Under no circumstances does a person’s mistake of fact negate his criminal responsibility for violating a strict liability offense
    2. SL does not require proof of mens rea; mistake of fact negates mens rea, therefore mistake of fact irrelevant in SL
  2. Case illustration – People v. Navarro [pg. 194]
    1. Man convicted of theft for stealing wooden beams; ∆ thought they were abandoned and owner had no objection
    2. Reversed – specific intent crime (in good faith actually believed he could take them, however unreasonable)
      1. Larceny = “the trespassory taking and carrying away of the personal property of another with the intent to steal the property”
      2. ∆ had mens rea to carry away the property, but his mistake negated the specific intent to steal the prop
    3. Mistake of law –
      1. Limited exceptions to the idea that “ignorance is no excuse” – knowledge, recklessness, or negligence as to whether conduct constitutes an offense is not an element of offenses, so generally no mens rea is capable of being negated by an actor’s ignorance or mistake of law
      2. 3 ways to relieve culpability:
        1. Reasonable reliance (excuse, affirmative defense)
          1. Common law
            • In limited circumstances, a person may rely on interpretation of law later determined to be erroneous; but this interpretation cannot be a reliance on his own erroneous reading, even if a reasonable person, or reasonable law-trained person would have similarly misunderstood the law
            • Reasonable reliance mistake of law is allowed as a defense if:
              • Statute later declared invalid
              • Judicial later declared erroneous
              • Official interpretation from one charged with the interpretation, administration or enforcement of the law, ie the attorney general (don’t allow interpretation from regular lawyers; also, only an official letter of interpretation will do, no informal intrepretation)
  1. Under MPC, reasonable reliance mistake of law defense applies if:
    • Official, but erroneous, statement of law;
    • The statement of law is found in a statute, judicial decision, administration order or grant of permission, or an official interpretation by a public official or body responsible for the interpretation, administration, or enforcement of the law; and
    • Reliance is otherwise reasonable
  2. Fair notice (excuse, affirmative defense)
    1. Common law
      • Exception to the assumption that everyone knows the law
      • Under very limited circumstances, a person who is unaware of a criminal statute may successfully assert a constitutional defense
      • Lambert v. California [pg. 207]
        • ∆ unaware that she must register as a felon in the city; exculpated on “lack of fair notice” due process grounds
        • Passive nature of offense (requirements for a fair notice defense):
          • It punished an omission (failure to register);
          • The duty to act was imposed on the basis of a status (presence in city), rather than on the basis of an activity; and
          • The offense was malum prohibitum.
        • As a result of these factors, there was nothing to alert a reasonable person to the need to inquire into the law
  1. MPC §2.03(3)(a): fair notice exception applies when:
    • ∆ does not believe that his conduct is illegal, and
    • the statute defining the offense is not known to him and was “not published or otherwise reasonably made available” to him before he violated the law
  2. Different law mistake – ignorance/mistake that negates mens rea
    1. Common law
      • ∆’s lack of knowledge of, or misunderstanding regarding the meaning or application of, another law will negate the mens rea element in the definition of the offense
      • When a ∆ seeks to avoid conviction for a criminal offense by asserting a different-law mistake, on the ground that the different-law mistake negates his mens rea, it depends whether the offense charged is one of specific-intent, general-intent, or strict-liability:
        • Specific intent – a different-law mistake, whether reasonable or unreasonable, is a defense in the prosecution of a specific-intent offense, if the mistake negates the specific intent (in line with the mistake-of-fact doctrine)
        • General intent – although there is very little case law on point, a different-law mistake, whether reasonable or unreasonable, apparently is not a defense to a general-intent crime (contrary to the mistake-of-fact doctrine)
          • ∆ marries his cousin, unaware that marrying your cousin makes the marriage invalid… he has sexual intercourse and is charged with common law rape; general intent crime, held culpable
        • Strict liability – a different-law mistake is never a defense to a strict-liability offense
          • ie I obtain a divorce in Canada which is not valid in US; if I remarry in US, I cannot use mistake of divorce law to escape bigamy charge… bigamy is SL and requires no blameworthy state of mind
  1. MPC 2.04(1)
    • Mistake or ignorance of the law is a defense if it negates a material element of the offense (like mistake-of-fact); application of this defense generally surfaces in cases of a different-law mistake
    • Different law mistake defense is successful if the mistake negates mens rea or when the offense specifically requires knowledge of the law
  2. Mistake of law case illustrations:
    1. Case illustration – People v. Marrero [pg. 199]
      1. Prison guard convicted of carrying firearm, thought he was exempt by misinterpreting the statute; affirmed
      2. To admit the excuse would be to encourage ignorance; individual justice outweighed by larger interests
    2. Case illustration – Cheek v. United States [pg. 209]
      1. Man didn’t pay taxes; statute called for “willfulness”; man sincerely believed tax laws were unconstitutionally enforced and his actions were lawful (advised by lawyers purporting to give professional opinions about invalidity of tax laws)
      2. Court construed willfully to mean a voluntary and intentional violation of a known legal duty
  • Trial judge had instructed jury that mistake had to be reasonable, but Supreme Court disagreed (mistake needs only be honest, not reasonable)


  1. General
    1. The actus reus must cause a social harm
    2. To be a cause, conduct must be both a cause-in-fact and a proximate cause of the harm
    3. Burden – proof of cause beyond a reasonable doubt
  2. Actual Cause (Cause-in-Fact) – serves to determine all causes (not necessarily the conduct to which we assign liability)
    1. But-for test (the primary test; the other tests for actual cause relate back to this one)
      1. But for the ∆’s actions, the harm would not have occurred when it did
    2. Multiple actual causes
      1. When a harm is sustained from multiple sources, any of the multiple wrongdoers can be found culpable if his act was “a” cause-in-fact of the harm
      2. It is not necessary that any act be the sole and exclusive cause-in-fact of the harm
    3. Accelerating a result
      1. Even if a harm is inevitable, if a ∆’s conduct accelerated the harm, he can be found culpable
      2. Consider the language of the but-for test – harm would not have occurred when it did
      3. Oxendine v. State [pg. 215]
        1. Woman pushes kid, causing internal damage (death would have occurred by this act alone)
        2. Man later hit kid, aggravating the damage (may have sped up the death, but expert testimony differed over this point)
        3. Prosecution failed to prove that the 2nd beating accelerated the death to be an actual cause; therefore man not guilty
      4. Concurrent sufficient causes
        1. If, in the case of infliction of harm from two or more sources, each act alone was sufficient to cause the result that occurred when it did, the causes are concurrent and each wrongdoer can be found criminally liable
        2. We ask, but-for the ∆’s act, would the social harm have occurred, AND would it have occurred as it did?
          1. ie if 2 ∆s shoot V at same time in head… the result is not described as “death of V,” but as “death of V by 2 simultaneous mortal wounds”
        3. Obstructed cause
          1. If a ∆ commits a voluntary act intending to cause harm (ie shooting a victim in the stomach intending to kill the victim) but another wrongdoer commits a more serious injury that kills the victim sooner, the initial wrongdoer might only be convicted of attempt to kill since the subsequent wrongdoer’s act obstructed his goal of killing the victim
        4. Substantial factor test
          1. Compared along with other causes-in-fact, were ∆’s acts a substantial factor in causing the harm?
          2. Did the factor accelerate the result?
        5. MPC uses the “but-for” test exclusively for actual cause
  • Proximate Cause (Legal Cause) – serves to determine the cause of the event/harm on which we base liability
    1. Direct Cause
      1. An act that is a direct cause of the social harm is also a proximate cause of it (direct cause is always both the but-for cause and the proximate cause)
      2. Concerns arise when there are multiple actors, multiple sufficient causes (especially simultaneous ones), or intervening/superseding causes
      3. Case illustrations
        1. People v. Rideout [pg. 220]
          1. ∆ convicted of driving drunk thereby causing death; reversed and remanded
          2. ∆ driving SUV, accident with R (also drunk); R and passenger (K) walked to ∆’s car to discuss, then back their own car in middle of road to turn on flashers; another car hits and kills K
  • K walked to safety then, by his own free will, walked into danger; ∆ not a direct cause (superseding)
  1. Intervening cause: when does an intervening cause become superseding (breaks the causal link between ∆’s act and the harm, thus relieving ∆ of culpability)? Six factors to consider (on exam, go through ALL factors):
    1. An “intervening cause” is an independent force that operates in producing social harm, but which only comes into play after the ∆’s voluntary act or omission
    2. An intervening cause can be a superseding cause and break the causal link between the ∆’s act and the harm, thus relieving ∆ of culpability; six factors to consider:
      1. Foreseeability of intervening cause
        1. Many jurisdictions hold an intervening act to be superseding if it is unforeseeable, and hold that ∆ cannot escape liability when the intervening cause is foreseeable
        2. Was the intervening act dependent/responsive?
          • A responsive (dependent) intervening act (one that occurs as a result of ∆’s wrongful conduct) generally will not relieve the initial wrongdoer of responsibility, unless the response was highly abnormal or bizarre
            • ie if I shoot someone and they subsequently die due to negligent medical care in response to my shooting I will still be responsible; however, if they die due to grossly negligent or reckless medical care, that is considered abnormal, thus superseding, and I will not be responsible
          • A coincidental (independent) force is one that does not occur as a result of ∆’s wrongful conduct
            • The only relationship between ∆’s conduct and the intervening cause is that ∆ placed the victim in a situation where the intervening cause could independently act upon him.
            • The common law rule is that a coincidental intervening cause relieves the original wrongdoer of criminal responsibility, unless the intervention was foreseeable
          • ∆ does not actually need to subjectively foresee the intervening act (with causation, we don’t care about the ∆’s mental state, except with the intended consequence test)
  1. Kibbe v. Henderson
    • ∆s meet H (drunk), rob him and leave on side of road; car driving by hits and kills ∆
    • ∆s leaving H on side of road was a substantial risk (harm was foreseeable), ∆s were aware of the risk
    • ∆s found guilty of murder, but remanded because jury was not properly instructed on intervening/superseding causes
  2. A Fish Called Wanda – man tries to shoot lady but kills her dog, she has heart attack and dies
    • Defense would argue that the intervening act was unforeseeable and should supersede his conduct
    • Heart attack might not even be related to dog’s death (he had already killed 2 of her dogs and she didn’t have a heart attack, making it even less foreseeable)
  3. Intended consequence (∆’s mens rea)
    1. When the intervening act brings about the consequence that the ∆ had intended to bring about by his wrongful conduct, that ∆ will still be criminally responsible
    2. Regina v. Michael [pg. 227]
      • M wanted death of son, V; M gave poison to nurse in guise of medicine; nurse decided V didn’t need medicine, set it aside; Y, a 5yo, discovered poison and innocently administered it; is M guilty?
      • Despite several intervening causes, M intended to kill V so yes, M is guilty
  • A Fish Called Wanda – man tries to shoot lady but shoots her dog, causing her to have a heart attack
    • Prosecution would argue that death was his intended consequence, regardless of how it came about
    • Also, they could argue that he intended to kill her with the falling crate, and it was the shock of the crate almost hitting her that actually caused the heart attack, rather than the dog’s death
  1. Free, deliberate, and informed human intervention / Victim’s own act
    1. A ∆ may be relieved of responsibility if an intervening cause was the result of a free, deliberate and informed human intervention
    2. A subsequent dangerous action that caused the victim’s injury or death would not relieve the defendant of liability is such act resulted from duress
  • Examples
    • Movie Seven – V is assaulted then left with phone and pills; chooses to kill herself rather than call for help (not free? Because decision is made under duress?)
    • Victim stabbed and taken to hospital, refusing a life-saving transfusion for religious reasons
    • Valasquez [pg. 229]: drag race concluded and victim turned car around to continue racing
    • Preslar [pg. 224] – woman is assaulted and walks home, gets there and decides to sleep outside
  1. Apparent safety doctrine – dangerous forces that come to rest
    1. ∆’s unlawful act that puts a victim in danger may be found to be the proximate cause of resulting harm, unless the V has a route to safety but instead puts herself in further danger, which causes the harmful result (as in Rideout, above)
    2. Preslar [pg. 224] – Woman is assaulted, walks home to get away from assaulter, gets home, decides not to go inside, dies of hypothermia (reached safety of home, chose not to go in)
  2. De minimis causes – minimal contribution to the social harm
    1. In some cases, if ∆’s voluntary act caused minor social harm compared to the social harm resulting from a substantial, intervening cause, the law will treat the latter as the proximate cause of the social harm
    2. Asks the initial cause is insignificant in relation to the intervening cause; if there are far more substantial causes, a minor but-for cause will not be a proximate cause
  • ie Rideout, discussed above w/ foreseeability; ∆’s acts were a minimal cause compared to other driver
  1. Omissions
    1. An omission will rarely, if ever, serve as a superseding intervening cause, even if the omitter has a duty to act… some argue that omission can never serve as an intervening cause (negative act cannot cut off liability from an earlier positive act)
      • ie if a father fails to stop a stranger from beating his child to death, his omission will not relieve the stranger of liability (though the father may also be culpable on the basis of omission principles)
    2. Trend appears to be in the opposite direction; consider the relationship between the omitter and the victim
  2. Causation in the MPC
    1. Actual cause
      1. Applies the but-for test as the exclusive meaning of actual causation
      2. To be guilty of an offense, a person’s conduct must cause the prohibited result
    2. Proximate cause [§2.03(2)(b), (3)(c)]
      1. The ∆ has not acted with the requisite culpability unless the actual result, including the manner in which it occurred, is not too remote or accidental in its occurrence from that which was designed, contemplated or risked (to remote to have a just bearing on the actor’s liability or on the gravity of his offense)
      2. In such circumstances, the issue in a MPC jurisdiction is not whether, in light of the divergences, the ∆ was a “proximate cause” of the resulting harm, but rather whether it may still be said that he caused the prohibited result with the level of culpability—purpose, knowledge, recklessness, or negligence—required by the definition of the offense
      3. In the rare circumstance of an offense containing no culpability requirement, the MPC provides that causation “is not established unless the actual result is a probable consequence of the defendant’s conduct.” [MPC § 2.03(4)]
        1. This would mean that in a jurisdiction that recognizes the felony-murder rule, but which applies MPC causation principles, a ∆ may not be convicted of felony-murder if the death was not a probable consequence of his felonious conduct
      4. Concurrence of the Elements
        1. Temporal concurrence
          1. ∆ must possess the requisite mens rea at the same moment that his voluntary conduct (or omission) causes the social harm (actus reus)
            1. Mens rea precedes actus reus
              1. ∆ plans and wants to kill V but doesn’t get opportunity; later, no longer wishing to kill the V, accidentally kills V while on a hunting trip… no concurrence
            2. Actus reus precedes mens rea
              1. ∆ breaks and enters a house to escape the cold, then decides to steal; no burglary because there was no specific intent to “commit a felon therein” at the time he broke into the house
            3. Motivational concurrence
              1. The ∆’s conduct that caused the social harm must have been set into motion or compelled by the thought process that constituted the mens rea of the offense.
                1. e. ∆ has mens rea to kill, but ends up killing when merely testing the gun; the lethal act of pulling the trigger was meant as a preparatory act, it was not done to give effect to desire to kill (even thought the desire to kill was present)
              2. Temporarily divisible act
                1. Courts sometimes, in exceptional cases, ignore concurrence
                  1. e. ∆ thought he had killed V by poisoning her, but she was merely unconscious. She was killed when he decapitated her (as he thought) dead body
                2. Case illustrations
                  1. State v. Rose [pg. 232]
                    1. Pedestrian walked in front of car and was hit, car drove away; charged w/ leaving scene of an accident and manslaughter; body found some distance away, wedged under the car
                    2. Court instructed that in order to find ∆ guilty of manslaughter, it is necessary to find that V was alive immediately after the impact and that the conduct of the ∆ following the impact constituted culpable negligence
                      1. If V died at impact, ∆ had no mens rea at the time of the impact to hold ∆ culpable for the death, BUT if the death occurred due to the dragging, and there is a culpable mens rea at the time of the dragging, then ∆ can be held culpable for V’s death – all depends on what caused the death… can’t be sure here so ∆’s motion for acquittal is granted
                    3. Fagan [pg. 234]
                      1. ∆ accidently drives onto cops foot, then decides to stay there for a few minutes
                      2. Actus reus (rolling onto foot) does not concur with the mens rea (wanting to hurt cop), which was after the actus reus was complete (or was the actus reus an omission, by refusing to act to move off foot?)
                    4. Hypothetical
                      1. ∆ wants to kill V, goes and buys a gun; on the way home, he accidently hits her with his car and she dies
                      2. No mens rea at the time of the death, so probably not culpable for murder (what about the intended consequences test for intervening acts?)


  1. General
    1. Defining
      1. Homicide is the unlawful killing of a human being by another human being (not suicide)
        1. People v. Eulo [pg. 247]
          1. 2 separate cases w/ same fact pattern: ∆ shot victim, victim placed on life support, family later decides to pull plug
          2. Did ∆ commit murder, if family is the one who decided life should be terminated?
  • Without the brain, a person is not alive… brain controls all vital processes like respiration and circulation
    • If, due to the advances of medicine and tech, a brain-dead person whose respiration and heart function is kept going by unnatural mean, that person is dead
  1. Holding: 2nd degree murder
  1. At common law, murder was defined as the unlawful killing of another human being with “malice aforethought”
    1. “Malice aforethought” is the convergence of 4 states of mind:
      1. Intent to kill – awareness that the death of another will result from one’s actions
      2. Intent to cause grievous bodily harm – knowledge that conduct would cause serious bodily injury
  • Depraved-heart murder – causing the death of another in a manner evincing a wanton and willful disregard for the sanctity of human life
  1. Intent to commit a felony
  1. Intent to kill
    1. One who intentionally kills another human being without justification (ie self defense), excuse (ie insanity) or mitigating circumstances (ie sudden heat of passion) is guilty of killing with “malice aforethought” – express malice – and is therefore guilty of common law murder
      • Typically, if offense is graded in degrees, this will be murder in the 1st degree if homicide was also “deliberate and premeditated”
    2. Homicide has nothing to do with the result because the result is the same in every case as to the social harm that has occurred; it has everything to do with the level of culpability and what was the ∆ thinking at the time of the series of events that led to the death?
  • Inferring intent/mental state
    • Natural and probable consequences rule:
      • When the probable consequence of the D’s conduct is that another person will die, the syllogism (ordinary people intend the natural and probable consequence of their acts, and D is an ordinary person) invites the jury to infer the requisite specific intent
    • Deadly weapon rule:
      • When a D intentionally uses a deadly weapon directed at a vital part of the human anatomy, an intention to kill may be properly inferred
  1. Manslaughter is the unlawful killing of a human being without malice aforethought
  2. Year and a day rule (common law)
    1. Causation concern – cannot charge with homicide in any killing where the death occurred more than a year and a day after the infliction of the original injury
    2. CA has statutorily amended this to be three years and a day; but it’s a rebuttable presumption
    3. Public policy decision – don’t want the killer to have to look over his shoulder for the rest of his life, waiting for the victim to die
    4. Problems due to advancing medical technology & ability to keep ppl alive; application of rule prevented prosecution b/c doctors were successful at prolonging life (families have to pick between terminating life support to get a conviction, or letting the killer go free)
  3. Homicide in the Common Law
    1. 1st Degree Murder
      1. Intent to kill with willful premeditation and deliberation
        1. Willful: specific intent to kill
        2. Deliberate: to measure and evaluate the major facets of a choice or problem
          1. This deliberation can happen in an instant… different minds process information differently
        3. Premeditate: to think about beforehand
          1. ∆ must have had a chance to turn the concept of murder over in his mind, then decide to commit the act
          2. Again, this can happen in an instant (see Guthrie)
        4. Courts have used the following factors (from People v. Anderson) to determine if WPD
          1. Evidence of planning
          2. Looking at previous relationship (peaceful, etc.)
  • Nature of the killing (planned, reaction to something, etc.)
  1. Cases – what constitutes “willful premeditation and deliberation”?
    1. State v. Guthrie [pg. 253] – time needed for WPD
      • Man is taunted at work by co-worker, grabs a knife and stabs co-worker in the neck
      • Man convicted, claims improper jury instruction regarding WPD
      • “…deliberate and premeditated killing …is done after a period of time for prior consideration. The duration of that period cannot be arbitrarily fixed…and…varies as the minds and temperaments of people differ.”
      • Man took off his gloves and could have been found to have had enough time to deliberate/premeditate… remanded for new trial with more clear jury instruction
    2. Midgett v. State [pg. 258]
      • Dad beats kid regularly; hits him 2x in stomach and 2x in back, kid dies; man convicted of 1st degree and appeals saying it wasn’t premeditated
      • Reversed – man had intention to cause serious harm (as in 2nd degree) but no WPD
      • After this case, state passed a statute making murder a 1st degree offense when it occurs “under circumstances manifesting extreme indifference to the value of human life,” a person “knowingly causes the death of a person fourteen years of age or younger.”
  • State v. Forrest [pg. 261] – circumstantial evidence to infer WPD
    • Man’s dad is terminally ill, he goes to hospital and shoots him 4 times in the head; convicted of 1st degree murder
    • Before shooting, he was dismissive of nurse’s attempts at what he considered futile treatment… “I’ll take care of him” … after shooting, man said, “He won’t have to suffer anymore,” and “I promised my dad I won’t let him suffer”
    • Court analysis: circumstances to be considered in determining whether a killing was WPD:
      • Want of provocation on the part of the deceased [no provocation here]
      • The conduct and statements of the defendant before and after the killing
      • Threats and declarations of the defendant before and during the course of the occurrence giving rise to the death of the deceased
      • Ill-will or previous difficulty between the parties
      • The dealing of lethal blows after the deceased has been felled and rendered helpless [shot 4 times here]; and
      • Evidence that the killing was done in a brutal manner [shot 4 times in the head]
    • Man’s statements were persuasive of WPD when analyzed this way… affirmed
  1. People v. Anderson [pg. ]
    • Renter killed landlady’s 10 yo daughter by stabbing about 20 times; hid body behind a sleeping bag; told inconsistent lies about the blood and cut on his hand; appears cold, cool, calculated, not worried about the fact that there is a dead body in the next room
    • Court said there are three factors to help us determine whether something is a WPD killing or some other kind of killing:
      • Conduct of the defendant before the killing indicating planning activity
      • Relationship b/w the victim and the defendant to determine if there was any motive, prior relationship as a means of discerning motive
      • Manner of killing.
    • In this case, 23 stab wounds looks like frenzy and therefore not WPD murder, despite the cool attitude afterward; no evidence of planning in this case
    • Court found it was not WPD; other courts have said 23 stab wounds don’t mean frenzy, just mean that he wanted her dead
    • Dangerous to look at conduct post-mortem because we are looking for mens rea at time of the murder
  2. Killing of a certain person (e.g. police officer) (not consistent across all states)
  3. Killing by a certain means (enumerated in statute, i.e. poisoning, laying in wait, explosive or incendiary device)
    1. These devices are by their nature dangerous and cause a certain large amount of damage; acts of terrorism
  4. 1st degree felony murder (ALWAYS on exam, either 1st or 2nd degree)
    1. During the commission or attempted commission of a felony enumerated in the state’s statute; usually includes burglary, arson, rape, robbery, kidnapping (BARKK felonies)
      1. Rule applies whether a felon kills the victim intentionally, recklessly, negligently or accidentally and unforeseeably, thus authorizing strict liability for a death that results from commission of a felony. Intent to commit the felony = implied malice required for common law murder
      2. State v. Fuller [pg. 316]
        • Officer sees people stealing spare times in a car lot, chase ensues, and people die
        • Court disagrees with the doctrine, but convicts on precedent alone (1st degree felony murder for burglary, even though it is not an inherently dangerous felony)
      3. Limitations:
        1. Res Gestae – The death has to occur during the committed felony and have a casual relationship to it (objective; proximity in time and space, and causal connection)
          • Temporal/geographic component: there must be a relatively close proximity in terms of time and distance between the felony and the homicide
            • During the felony = during the commission of, during the attempt of, or while fleeing
            • When it from preparation to perpetration, until the felon reaches a place of safety
            • Fleeing from pursuing police officers is still part of the felony
          • Causal component: there must be a causal relationship between the felony and the homicide (it must be the felonious nature of the conduct that caused the death)
        2. Identity of the shooter
          • Agency approach (majority)
            • Felony murder rule does not apply if the person who causes the death is a non-felon (not the ∆ or one of his accomplices… if killer is an adversary or 3rd party, ∆ is not culpable)
            • Felony murder rule does apply if killer is one of ∆’s accomplices
          • The “proximate causation” approach (minority rule)
            • Felon is culpable for any killing that occurs once the felony is set in motion by the felon (no matter who the shooter is, could be felon, accomplice, adversary, or 3rd party)
            • Case-by-case matter for the jury
            • Some states break this down further:
              • If the person killed is a co-felon, the ∆ is not held culpable (we don’t care, good death)
            • State v. Sophophone [pg. 338]
              • ∆ arrested for burglary; afterwards, co-felon fires at cops and cops shoot him; ∆ held culpable by felony murder
              • Was ∆ still engaged in felonious activity, since his accomplice was still in action?
              • The “agency approach” (majority rule)
                • Felony murder rule does not apply if the person who causes the death is a non-felon (stricter view)
              • The “proximate causation” approach (minority rule)
                • Hold ∆ culpable for any killing that occurs once the felony is set in motion by the felony (no matter who the shooter is)
                • Some states break this down further:
                  • If the person killed is a co-felon, the ∆ is not held culpable (we don’t care, good death)
  1. Essentially strict liability when a death occurs during the commission of a felony
  2. Policy
    1. Background: at early common law, all felonies were capital offenses, so another cap offense didn’t matter
    2. Can it deter if the killing is unintentional? Or is it to deter dangerous felonies (but do felons even know of this law? Can’t deter if they don’t know)? (utilitarian)
  • Intent for homicide of a lower degree (ie manslaughter) can be morally worse, but felony murder can be 1st degree (and punished more severely) even if accidental
  1. Transferred intent – moral blameworthiness of committing a felony can be transferred to the actus reus of murder
  2. Reaffirms the sanctity of human life, and people who kill deserve condemnation (retributivist)
  1. Prosecution does not have to prove a mens rea, only that the person was acting to commit a felony
  1. 2nd Degree Murder
    1. Intent to kill, where the intent does not rise to the level of being willful premeditation and deliberation
    2. Intent to cause grievous bodily harm or serious bodily injury
      1. Malice aforethought is implied if a person’s conduct manifests extreme indifference to the value of human life
      2. Anything that requires medical attention in order to prevent serious permanent injury or disfigurement (ie fight that results in a broken jaw), constitutes GBH
    3. Depraved heart murder/abandoned and malignant heart murder (on exam, evaluate both this and involuntary manslaughter)
      1. Malice aforethought is implied if a person’s conduct manifests extreme indifference to the value of human life (ie murder by HIV transmission, when ∆ knows he has HIV and doesn’t care)
      2. Extreme recklessness evincing a wanton and willful disregard for the sanctity of human life
        1. Conduct is so reckless that we call it murder, even without the intent to kill or cause bodily harm
        2. What constitutes extreme recklessness?
          • ∆’s awareness, or mens rea, of risk of danger to human life
          • Objectively circumstances (how unjustifiable is the risk?) (severity)
          • How significant is the risk? (probability)
          • Multiple victims (risk to many people)
          • Base social motive (i.e. financial reasons for overlooking a risk) [Jake didn’t include this in outline?]
  • If court finds that it is only recklessness, not extreme recklessness, court will find involuntary manslaughter
  1. Cases – what is a wanton and willful disregard for the sanctity of human life?
    1. People v. Knoller [pg. 296]
      • ∆s owned 2 large dogs that attacked/killed person… vet had informed them (they knew of risk) that dogs were a liability; some 30 prior incidents where dogs were out of control or threatening humans, ∆s didn’t care
      • Implied malice is the killing of one with an abandoned and malignant heart… Does the mental state required for implied malice includes only conscious disregard for human life or can it be satisfied by an awareness that the act is likely to result in great bodily injury?
      • Holding: 2nd degree; TC erred in suggesting that the defendant must subjectively know that her conduct had a high probability of death… the ∆ should be subject to an objective test, rather than a subjective test
    2. 2nd degree felony murder
      1. Killing occurs during the commission or attempted commission of an unenumerated felony, usually a violent felony (inherently dangerous felony)
      2. Limitations:
        1. Inherently dangerous felony
          • Abstract – look at the statute in isolation; if it is possible to commit the felony in a non-dangerous way, it is not inherently dangerous, and we cannot apply the felony murder rule (ie for practicing medicine w/o a license, courts have been able to imagine ways in which it would not be dangerous, ie dispensing sugar pills, so not a dangerous felony)
            • People v. Howard [pg. 327]
              • Death occurred while ∆ fled from pursuing police officer
              • Is the crime of driving with a willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer an inherently dangerous felony for purposes of 2nd degree felony murder?
              • This court used the abstract approach, ruling that this was not a case of 2nd degree felony murder
              • This kind of application applies only to 2nd degree (inherently dangerous), not 1st deg (BARRK)
            • People v. Burroughs [pg. 332]
              • ∆, a healer, caused death when performing deep abdominal massage (causing hemorrhage)
              • Charged with medicine without a license under conditions creating a risk of great bodily harm, serious physical or mental illness, or death
                • Crime was not inherently dangerous
              • Particular – look at statute with respect to the particular case; did the ∆ commit the felony in a dangerous manner? If yes, it is a dangerous felony
  1. Independent felonious purpose
    • Underlying felony must have a purpose other than the assault or death of the victim
    • People v. Smith [pg. 334]
      • ∆ appealed conviction of 2nd degree murder and child abuse
      • “Independent felonious purpose” or merger doctrine (IFP)
        • Cannot base felony murder on a felony whose primary purpose is assault
          • Otherwise, we could essentially eliminate involuntary manslaughter, because we could almost always just charge 2nddegree felony murder
        • Felony for felony murder must have an independent felonious purpose
      • In a BARRK felony (other than rape perhaps), there is usually an independent felonious purpose.
        • Say a husband breaks into his wife’s home with the intent to commit a felony (burglary, where the intended felony is assault of his wife) – if no BARRK in that state, then not felony murder, because there was no independent felonious purpose – the assault WAS the purpose to break into the house
      • Res Gestae – The death has to occur during the committed felony and have a casual relationship to it (objective; proximity in time and space, and causal connection)
        • Temporal/geographic component: there must be a relatively close proximity in terms of time and distance between the felony and the homicide
          • During the felony = during the commission of, during the attempt of, or while fleeing
          • When it from preparation to perpetration, until the felon reaches a place of safety
          • Fleeing from pursuing police officers is still part of the felony
        • Causal component: there must be a causal relationship between the felony and the homicide (it must be the felonious nature of the conduct that caused the death)
  1. Identity of the shooter (see Sophophone, above in 1st deg felony murder section)
    • Agency approach (majority)
      • Felony murder rule does not apply if the person who causes the death is a non-felon (not the ∆ or one of his accomplices… if killer is an adversary or 3rd party, ∆ is not culpable)
      • Felony murder rule does apply if killer is one of ∆’s accomplices
    • The “proximate causation” approach (minority rule)
      • Felon is culpable for any killing that occurs once the felony is set in motion by the felon (no matter who the shooter is, could be felon, accomplice, adversary, or 3rd party)
      • Case-by-case matter for the jury
      • Some states break this down further:
        • If the person killed is a co-felon, the ∆ is not held culpable (we don’t care, good death)
  1. Voluntary Manslaughter (manslaughter = killing of another human being w/o malice aforethought)
    1. Intentional killing that occurs in the sudden heat of passion (subjective) as a result of adequate provocation (objective, but is trending toward subjective), without reasonable time to “cool off” (objective), with the presence of a causal connection
      1. Operates usually as a defense, to mitigate a charge of 2nd degree murder to voluntary manslaughter
        1. Partial justification (provocateur deserved it) and partial excuse (∆ didn’t know what he was doing) in the midst of extreme emotion
      2. There must be a causal connection between the provocation, the passion, and the fatal act
      3. Heat of passion can be any sort of emotion (rage, jealousy, fear, desperation, grief, etc.) so long as it is extremely intense and would cause a person to think and behave irrationally
      4. Adequate provocation
        1. Old categories: observing the act of adultery (must actually walk in on spouse; confessions are not enough), aggravated assault or battery, mutual combat, injury/assault of a close relative, illegal arrest
          • NOT sufficient: trivial battery, learning about (not observing) adultery, observing sexual unfaithfulness of fiancé or unmarried partner, words (no matter how insulting), violation of prop.
        2. New categorization – the kind of provocation that would cause the reasonable person to lose self-control (this is why adequate provocation is trending toward the subjective)
          • Reasonableness standard – “adequate” is calculated to inflame the passion of a reasonable man and tend to cause him to act for the moment rather than reason
            • Not that the killing was reasonable, but that the passionate loss of control was reasonable
          • Under common law provocation is a partial justification (whereas in MPC, it is a partial excuse, in the form of EMED)
          • Words are usually not enough in non-MPC, but it is up to the discretion of the court (in MPC jurisdictions, words may be enough)
            • “I’m going to kill you, kill your family” are considered adequate provocation
            • Some states allow for racial epithets in a racially charged situation where violence could occur, might be seen as sufficient
            • Generally, you want to argue, words are never enough, except if accompanied by some conduct, or if we’re going to expand our standards to situations of “present danger”
          • Victim (not bystander or 3rd party) has to be the provocateur
  1. Attorney General for Jersey v. Holley [pg. 276]
    • Man & wife both alcoholics; both drunk, woman comes home and claims to have slept with another man
    • Man walks outside and gets hatchet (not intending to kill at this point, just chop some wood), woman says, “You don’t have the guts,” and he kills her
    • Individual characteristics (alcoholism/drunkenness) should not be considered when determining whether ∆ meets the reasonable person standard for provocation (subjective determination of whether provocation occurred, but objective determination of whether provocation was reasonable)
    • General rule: physical characteristics count, mental characteristics don’t (exception for syndromes)
  2. Time to cool off question is left to the jury, and can be just minutes or seconds
    1. The defense of provocation is unavailable if a reasonable person would have cooled off in the time that elapsed between the provocation and the fatal act
    2. Three currently accepted factors that affect cooling-off time
      • Age
      • Gender
      • Physical capacity or disability
  • Opportunity to cool off, not just time, is needed (ie if you start chasing someone in a heat of passion and chase goes on for 10 mins, you have had time but not the opportunity to cool off)
  1. Girouard v. State [pg. 264]
    • Man & woman having relationship problems; woman relentlessly insulting him and claimed she had reported him to JAG; man walked to kitchen to get knife and walked back to bedroom, woman continues berating him
    • Man stabbed woman 19 times then tried to kill himself; convicted of 2nddegree, appealed to get it mitigated to involuntary manslaughter, claiming he was provoked (are words enough for adequate provocation?)
    • “Adequate provocation” is calculated to the inflame the passion of a reasonable man and tend to cause him to act for the moment from passion rather than reason
      • Killing must immediately follow passion, with no time to cool off
    • Conviction affirmed: verbal provocation of this sort is not enough to warrant stabbing 19 times; man had mental issues, but reasonableness does not focus on “peculiar frailties of the mind of the Petitioner”
  2. Involuntary Manslaughter
    1. Reckless (conscious disregard of a substantial and unjustifiable risk) killing or killing that rises to the level of gross criminal negligence
      1. Gross criminal negligence: when a person does an act, lawful in itself, but in an unlawful manner and without due caution and circumspection (many terms are used to describe this: gross negligence, culpable negligence, recklessness; but the best modern term is gross criminal negligence)
      2. Fine line between involuntary and 2nd degree extreme recklessness – if recklessness is extreme, it is 2nd degree… if no, it is involuntary manslaughter (see Knoller, above in 2nd degree)
    2. Factors for distinguishing between voluntary manslaughter and extreme recklessness (2nd degree):
      1. ∆’s awareness, or mens rea, of risk of danger to human life
      2. Objectively circumstances (how unjustifiable is the risk?) (severity)
      3. How significant is the risk? (probability)
      4. Multiple victims (risk to many people)
      5. Base social motive (i.e. financial reasons for overlooking a risk) [Jake didn’t include this in outline?]
    3. State v. Williams [pg. 308]
      1. Baby has tooth infection, eventually resulting in death; ∆s knew it was sick, but didn’t take to doctor b/c they thought doc would report to welfare department and get baby taken away
      2. State did not require gross negligence for involuntary manslaughter, only ordinary or simple negligence
      3. Was there sufficient evidence from which the Court could find that a reasonable person under similar conditions would have been sufficiently put on notice concerning the severity of the child’s medical condition such that failure to seek medical care constituted a breach of duty?
      4. Yes (manslaughter affirmed) – parents have a duty to care for their kids; sufficient evidence that a reasonable person would know to take kid in for medical attention
  • Homicide in the MPC
    1. General
      1. A person is guilty of a criminal homicide if he purposely, knowingly, recklessly or negligently causes the death of another human being
      2. Criminal homicide is murder, manslaughter or negligent homicide (no degrees of murder)
    2. Murder (CL 1st + 2nd degree)
      1. It is committed purposely or knowingly; or
      2. It is committed recklessly under circumstances manifesting extreme indifference to the value of human life
        1. 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 the threat of force, arson, burglary, kidnapping or felonious escape
      3. Manslaughter
        1. It is committed recklessly [not intentionally or negligently]; or
        2. A homicide which would otherwise be murder [intentional] is committed under the influence of extreme mental or emotional disturbance (subjective, determined by judge) for which there is reasonable explanation or excuse (objective, determined by jury), determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be (subjective)
        3. Differences from common law manslaughter
          1. No element of provocation – instead a “reasonable explanation or excuse”
          2. No single trigger required – an accumulation of many factors over time could cause an EMED
          3. No element of a cooling-off period
          4. MPC manslaughter is much broader than under CL
          5. Reasonableness determined from the viewpoint of a person in actor’s situation under the circumstances as he believes them to be (unlike CL, which evaluates reasonableness completely objectively)
        4. “Extreme mental or emotional disturbance” (EMED)
          1. Were the circumstances sufficiently reasonable to cause an EMED?
          2. ∆ has the burden to prove there is an EMED (prosecution has burden to prove beyond a reasonable doubt the elements of their charge, not beyond a reasonable doubt the inadequacy of every possible defense)
            1. Existence of EMED is up to a judge… if judge determines there is an EMED, question of a reasonable explanation goes to the jury
          3. “Circumstances as he believes them to be”… doesn’t matter if those beliefs were rational
          4. EMED is a partial excuse to mitigate from murder to manslaughter
            1. Excuse not for the killing, but for the mental state
            2. Not the same as insanity (total excuse for all culpability)
          5. Country song defense – defense may be based on a series of events rather than a single precipitating cause.
        5. Burden
          1. ∆ has the burden of producing evidence regarding this affirmative defense (by a preponderance of evidence), after which the prosecution must disprove the defense beyond a reasonable doubt
        6. People v. Casassa [pg. 286]
          1. Victim broke up with ∆, ∆ started stalking her; when she refused to take him back, he stabbed her in the throat with he knife he had brought with him, then submerged her in bathtub to make sure she was dead; convicted on 2nd degree, appealed to manslaughter
          2. Court affirmed, holding that there was not a reasonable explanation or excuse (not for the killing, but for the extreme mental or emotional disturbance), given the circumstances as the ∆ believed them to be
        7. Criminally Negligent homicide
          1. Criminal homicide constitutes negligent homicide when it is committed negligently
            1. Gross deviation from the standard of care that a reasonable, law-abiding person would demonstrate under those circumstances
            2. ∆ fails to be aware of a substantial and unjustifiable risk that circumstances exist or will follow, and such failure constitutes a gross deviation from the standard of care that reasonable people would exercise in the same situation
            3. Not aware of risk (if aware of risk, this constitutes reckless and thus manslaughter)
          2. Causing or aiding suicide
            1. Causing another to commit suicide if he purposely causes such suicide by force, duress or deception
            2. A person who purposely aids or solicits another to commit suicide is guilty of a felony of the second degree if his conduct causes such suicide or an attempted suicide, and otherwise of a misdemeanor


  1. General
    1. Common Law
      1. At old common law, sexual intercourse by a male with a female not his wife constitutes rape if it is committed:
        1. Forcibly
        2. By means of deception
        3. While the female is unconscious or asleep
        4. Under circumstances in which the female is not competent to give consent (ie drugged, disabled, underage)
      2. Statutory law traditionally uses “forcibly”; “against her will” and “without her consent” – sometimes all (force necessary to overcome resistance)
        1. Many states now extend the law to specified forms of non-forcible, but nonconsensual, sexual intercourse (e.g. sexual intercourse by a male with an unconscious or drugged female)
        2. Increasingly, rape is now defined in gender-neutral terms regarding both the perpetrator and the victim.
        3. In the most reformed statutes, the offense has been broadened to include all forms of sexual penetration; the name of the crime has been changed and the offense is divided into degree
      3. Originally a capital felony, now a very serious felony (most states set maximum penalty at life)
      4. Examining statutes across the country, one can discern that sexual intercourse, by ∆ with a V (not his wife) is rape if it occurs:
        1. Forcibly
        2. By fraud
        3. While victim is asleep or unconscious
        4. Where victim is not competent to consent
      5. MPC
        1. A male is guilty of rape if, acting purposely, knowingly, or recklessly regarding each of the material elements of the offense, he has sexual intercourse with a female under any of the following circumstances:
          1. The female is less than 10 years of age
          2. The female is unconscious
          3. He compels the female to submit by force or by threatening her or another person with imminent death, grievous bodily harm, extreme pain or kidnapping; or

He administers or employs drugs or intoxicants in a manner that substantially impairs the female’s ability to appraise or control her conduct [MPC § 213.1(1)]

  1. Mens Rea
    1. Rape is a general intent crime; therefore, knowledge that the woman is not consenting is unnecessary as long as ∆ has a morally blameworthy state of mind regarding her consent
      1. Double mens rea – ∆’s state of mind about V’s state of mind
  • Actus Reus
    1. The act of sexual intercourse by force and/or against resistance and/or without consent
      1. Used to be defined narrowly as penetration or actual intercourse
        1. Other kinds of sexual acts were not considered rape, but might be considered assault
      2. Now many states have redefined rape as sexual assault and separate it into degrees based on the level of force used, and/or the type of sexual act
        1. Most states no longer have resistance requirement, yet the force required may still lead to an unspoken resistance requirement
        2. Def’n of force can run from “force or threats of physical force” to “requiring only the force necessary to commit the physical act” to “force presumed from absence of freely given permission
      3. Force, resistance, and consent
        1. How much force? When must force be used? How do we establish that force was used?
        2. Traditional common law:
          1. Required proof that both the female did not consent to the intercourse and that the sexual act was “by force” or “against her will” (“resistance” requirement)
          2. Generally speaking, nonconsensual intercourse is “forcible” if the male uses or threatens to use force likely to cause serious bodily harm to the female or, possibly, a third person
          3. Intercourse secured by a non-physical threat does not constitute forcible rape at common law
          4. How do we prove this?
            1. Physical injury (outward physical signs also indicate resistance)
          5. Resistance moves circumstances from persuasive force to the force required for rape
            1. How much does a reasonable person resist? How does this account for a passive, more fearful individual who may be afraid to resist?
          6. Force is now defined on a continuum, with threats of death or grievous bodily harm one end and the force inherent in the sexual act of any intercourse at the other end (making consent the main issue)
            1. At this point, force is essentially eliminated from the definition; the act of sex without consent would be force sufficient for intercourse to occur
            2. A minority of jurisdictions have essentially abolished the resistance requirement
              1. These jurisdictions typically require only that the alleged victim asserted a degree of resistance that was reasonable under the circumstances or that was sufficient to indicate that the sexual intercourse was without consent (does not have to be physical resistance)
            3. In an extreme minority of jurisdictions, the male can be convicted for forcible rape based solely on the lack of permission for the sexual intercourse (see T.S.)
          7. Ambiguity of “consent”
            1. At what point is the burden on the V to assert that she does not consent?
            2. What is the difference btwn the absence of a refusal, and the presence of consent?
            3. If there is no verbal, express “yes”, what conduct could constitute consent?
            4. What conduct by the male could render the consent invalid or tainted?
            5. What about the marital immunity rule?
          8. MPC
            1. MPC defines rape solely in terms of the male’s acts of aggression and does not require proof of resistance by the victim
          9. Marital immunity rule
            1. At common law, a husband could not be guilty of raping his wife.
            2. The majority of states retain a partial exemption under which immunity does not apply if the parties are legally separated or are living apart at the time of the rape
            3. MPC § 213.6(2)
              1. Partial marital exemption that bars a rape prosecution against a spouse or persons “living as man and wife,” although they are not formally married
              2. More stringent than the majority exemption, the only exception to the marital immunity rule is for spouses living apart under a formal decree of separation
            4. Rape-Shield Statutes
              1. If ∆ contends that the female consented to sexual intercourse with him on the occasion of the alleged rape, evidence of prior consensual sexual acts between the accused and the victim is admissible.
              2. However, today, most states bar evidence of the alleged victim’s prior consensual sexual activity with persons other than the accused and her reputation for lack of chastity under the so-called “rape-shield” laws
            5. Defenses
              1. “It wasn’t me, someone else had intercourse/raped her.” (goes to the actus reus)
              2. “This was consensual. It was not rape.” (goes to the actus reus)
              3. “I admit it is possible that she did not consent, but I honestly believed that she was consenting.” (goes to the mens rea)
                1. Mistake of fact as to consent (see People v. Williams)
                2. Allowed as a defense in some jurisdictions; only exculpates if mistake is honest and reasonable
                3. Is this consistent with our societal understanding of rape & requirement for a subjective mens rea?
              4. Cases
                1. State v. Alston (1984) – actus reus/force [pg. 404]
                  1. Facts
                    1. Abusive relationship with history of V complying with ∆’s demands for sex by passively submitting
                    2. V told ∆ relationship was over; ∆ threatens to “fix her face”; victim verbally refuses then submits from fear
                  2. Issues
                    1. Does she need to physically resist, or is verbal resistance sufficient?
                    2. Was the ∆’s threat to “fix her face” related to the rape, or to something else, such as breaking off the relationship (threat was made some time before the sex occurred)
                  3. Holding
                    1. Court agrees there is lack of consent, but says to find force, V must have resisted (traditionally, courts required both force and lack of consent)
                      1. As a result, force is dependent on resistance (dependent on V’s behavior)
                    2. The general fear from the threatening comment was not sufficient to show that ∆ used the force required to support a conviction of rape
                  4. State of New Jersey in the Interest of M.T.S – actus reus/force [pg. 434]
                    • Facts (court did not fully credit either teen’s version)
                      1. ∆ (17yo) was living in same house as V (15yo), sleeping on the couch
                      2. V’s version: she woke up and found ∆ on top of her having intercourse, she hit him and he stopped
                      3. ∆’s version: it was consensual, then she changed her mind and hit him, so he immediately stopped
                    • Court finds that the mere physical force associated with the act is sufficient to constitute “forcible” or “force used to overcome non-consent.”
                      1. In other words, the court separates the two components and essentially removes the force requirement so that non-consent becomes central
                      2. BUT, can we really separate the components here? Is this “no” as sufficient resistance, or increased emphasis on non-consent?

3.  State v. Rusk (1979) – actus reus/resistance requirement [pg. 411, 418]

  1. Facts
    1. V met ∆ at bar after high school reunion
    2. V gave ∆ a ride home; ∆ took car keys (essentially threatened stranding her) and convinced her to come inside; inside, she had a chance to leave or use a phone and didn’t
    3. She asks if he would let her go without killing her if she submitted, and he indicates that he would
    4. She submits, under fear, to sex
      1. “Look in his eyes” is her main allegation of a threat
      2. “Light choking”… it is unclear whether this was actual force
    5. Ultimately, court decided the issue was appropriate to be left to the jury (look at dissenting opinions)
  2. Commonwealth v. Berkowitz (1992) – actus reus/resistance requirement [pg. 425]
    1. Facts
      1. V came to ∆’s room while intoxicated, looking for his roommate; ∆ never received an affirmative yes, but V did not physically resist
      2. Her version:
        1. He “leaned on her” and “lightly pushed her to the bed” which she saw as force
        2. He locked the door (which did not lock from the inside—she could still get out)
  • She constantly said no, but did not physically resist
  1. His version:
    1. She had previously been flirting with him (asking how big his dick was, asking to see it)
    2. Her no’s were amorous and coy, while moaning, which he understood as affirmative responses to his advances
  • He had no idea she was not consenting
  1. Holding
    1. No evidence that ∆ could have been sufficiently put on notice that she was not consenting
    2. Her soft “no’s” could be interpreted as not meaning she wasn’t consenting
      1. Objections need to against force being used, not just for the act of sex
      2. This court still looking for force, not just non-consent
    3. No evidence of force great enough that she could not have pushed him off or otherwise resisted (she states that the force simply of him laying on top of her was the force he used)
  2. People v. Williams [pg. 453] – mens rea
    1. Facts
      1. ∆ works at homeless shelter, V is homeless
        1. His version:
          • They go to hotel, have consensual sex, then she demands $
          • He refuses to pay her, and she threatens to cry rape unless he does
        2. Her version:
          • They go to hotel to watch TV, she gets raped, then he offers her $
        3. ∆ and V present highly different accounts of the event; ∆ seeks instruction on mistake of fact
      2. What is required for mistake of fact in rape?
        1. In most jurisdictions, but not all, an honest and reasonable belief that the woman consented will exculpate the ∆
          1. Is this consistent with our requirement for a subjective mens rea (see P.P. v. Morgan)


  1. Defenses do three things:
    1. Demonstrate that the prosecutor has failed to meet his burden; or
    2. Establish that no social harm worthy of punishment has occurred (ie voodoo doll being used); or
    3. Find that ∆’s actions are not deserving of punishment (excuse)
  2. Five types of defenses:
    1. Failure of proof
      1. Not a true defense: ∆ introduces evidence at trial that demonstrates that the prosecution has failed to prove an essential element of the offense charged
      2. Burden of persuasion is not on the defendant, only burden of production (merely raising a reasonable doubt); prosecutor then has the burden of disproving beyond a reasonable doubt the ∆’s failure-of-proof claim
    2. Offense modification (“specialized defenses”)
      1. Negate the requirement that the ∆’s conduct caused the target social harm, negating the need to punish
      2. Function like failure of proof defenses (in that they negate guilt by undermining the prosecution’s showing)
      3. Specialized crime-specific defenses
        1. “Legal impossibility” is a defense to the crime of attempt
        2. They negate the underlying reason for the criminalization of conduct: i.e. renunciation after elements of attempt have been completed (his decision to abandon his criminal goal or conspiracy negates his culpability and dangerousness, rendering his punishment unnecessary)
      4. Justifications
        1. A true defense (affirmative) where the ∆ is acquitted, even though the prosecution has proved every element of the offense, because, under the circumstances, the ∆’s actions were socially acceptable, or at least, not wrong (e.g. self defense) (defense of the act)
        2. ∆ has burden of persuasion
        3. Requirements for all justification defenses, to some extent (WINO; all of these beliefs must be reasonable):
          1. Emergency Without the fault of the actor concerned
          2. Emergency must be so Imminent and compelling as to raise a reasonable expectation of harm
          3. Emergency must be Necessary and present no reasonable opportunity to avoid the injury without committing the criminal act (no adequate alternative)
          4. Impending injury must be of sufficient seriousness to Outweigh the criminal wrongdoing (objectively foreseeable, not actual) (proportionality)
        4. Excuses
          1. The defendant is found not culpable, even though the prosecutor has proved every element of the offense, because the defendant lacks the “moral blameworthiness” normally attached (defense of the actor)
          2. Even though the actor has harmed society, the claim is that he shouldn’t be blamed or punished for causing that harm
          3. This focuses on the defendant herself (e.g. insanity; minority/infancy; something about the defendant, diminished capacity, duress)
          4. ∆ has burden of persuasion
        5. Non-exculpatory public policy defenses
          1. These defenses raise public policy issues, outside of criminal law doctrine, unrelated to the social harm or the actor’s blameworthiness
          2. They include things like statute of limitations, diplomatic immunity and competency to stand trial
          3. Social interest served by the defense outweighs the utilitarian and/or retributivist reasons for punishing the offender
  • Burden of Proof
    1. In General
      1. Two types of burdens:
        1. Burden of production – the party with the burden of production must adduce SOME evidence to go forward with their claim
        2. Burden of persuasion – the party with the burden of persuasion must adduce sufficient evidence to convince the fact finder of their claim, whether that be by a mere preponderance of the evidence, clear and convincing evidence, or beyond a reasonable doubt
      2. These burdens may fall on the same party, or on different parties
      3. Prosecution:
        1. Prosecution always has burden of production and persuasion as to each and every element of the offense
      4. Defense:
        1. Defense has the burden of production and persuasion on affirmative defenses
        2. Defense not required to prove any affirmative defense beyond a reasonable doubt, but rather on a preponderance of the evidence, or balance of probabilities
        3. In failure of proof defenses, only raising a reasonable doubt is required

List of Defenses:

Mistake of law

Mistake of fact


Battered women syndrome

Defense of others

Defense of property

Defense of habitation

Involuntary Intoxication

Voluntary Intoxication



Diminished Capacity




Competency to Stand Trial

Cultural [pg. 722]

Heat of Passion / EMED

Abandonment (attempt) / withdrawal (conspiracy)

Legal Impossibility

Wharton’s Rule

Failure of proof defense (“I didn’t do the actus reus” or “I didn’t have the requisite mens rea”)


  1. Defense of Self (justification defense) – affirmative defense
    1. In General
      1. A person who is not an aggressor is justified in using force on another if he reasonable believes that the use of that force is necessary to protect himself from the imminent use of unlawful force by that person
      2. Deadly force is never justified unless ∆ reasonably believes that he needs to use deadly force to prevent the aggressor from using deadly force
      3. Moral forfeiture
        1. Victim gave up his right to be safe and secure because he has engaged in unlawful activity
        2. ∆ has moral right in this case, and has done nothing wrong
        3. When interests are balanced, the ∆ has a superior interest (i.e. amount of harm)
      4. MPC
        1. A person is justified in using force upon another person if he believes that such force is immediately necessary to protect himself against the exercise of unlawful force by the other on the present occasion. [MPC § 3.04(1)]
        2. The provision does not specifically require the defendant’s belief to be reasonable.
          1. However, nearly all of the Code justification defenses, including the defense of self-protection, are modified by § 3.09, which re-incorporates a reasonableness component
        3. Elements necessary for self defense:
          1. Non-aggressor status (at the time force is used) (see Peterson, pg. 502)
            1. Aggressor is one whose affirmative unlawful act [not necessarily force, could be brandishing a weapon] is reasonably calculated to produce an affray foreboding injurious or fatal consequences; one who provokes a conflict, precipitates the altercation, or is not free from fault in the difficulty; one who incites the attack
            2. Losing aggressor status
              1. If ∆ is aggressor, he cannot invoke self defense (dispositive) unless he loses his aggressor status
              2. A party can only lose aggressor status (and be able to use self defense) by communicating retreat, and communication must be received (unless, there is no obviously safe retreat)
  • A non-deadly aggressor loses aggressor status if met with disproportionate (deadly) force
    • e. A punches B, B pulls a gun (A was non-deadly aggressor but loses status when B draws gun)
    • However, even if met with disproportionate force, some states still require you to retreat if possible
  1. Necessity
    1. One can only use as much force as is necessary to repel the attack (deadly force is not always necessary; i.e. if old woman comes at you with a knife, deadly force is probably not necessary)
    2. Retreat (in some states)
      1. Was it necessary to use force at all, or was there another way to escape harm?
      2. Most states do not require you to retreat when aggressed upon, even if you are able to retreat (you can stand your ground so long as it is necessary and proportional)
        • We shouldn’t denounce conduct when it accords with behavior of reasonable men; “manly” thing is to hold one’s ground
        • Right should never give way to Wrong; also, sends a message to criminals that they threaten innocent persons at their own risk.
  • Castle doctrine: a universally recognized (CL and MPC) exception to the rule of retreat is that a non-aggressor need not ordinarily retreat if he is attacked in his own dwelling place or within its curtilage (the immediately surrounding land associated with the dwelling), even though he could do so in complete safe
    • Where are the boundaries? Yard? Walls of home?
      • Reasonable expectation of privacy, where you can expect to be reasonably safe from intrusion (front yard may not be enough, but back yard, shed, or garage might be)
      • e. in domestic violence situations, innocent party does not need to retreat from home, even if aggressor also lives there
  1. MPC states require that the innocent person must retreat if he subjectively knows he can do so in complete safety (subjective belief: not objective reasonable man standard…if he didn’t know he could retreat safely we will not hold him to the retreat requirement)
    • MPC recognizes the castle doctrine; however, retreat from the home or office is required:
      • If the ∆ was the initial aggressor, and wishes to regain his right of self-protection; or
      • Even if he was not the aggressor, if he is attacked by a co-worker in their place of work
    • However, the MPC does not require retreat by a non-aggressor in the home, even if the assailant is a co-dweller
  2. Imminency of unlawful deadly force
    1. Imminent = immediately, upon the instant, or at once (see State v. Norman)
      1. At common law, a person who wishes to use force in self-defense must reasonably fear that the threatened harm is imminent and that the threatened harm is of deadly force
        • Force isn’t imminent if the aggressor threatens to harm another person at later time
      2. MPC – “immediately necessary” instead of imminent unlawful force; focusing more on response than on triggering condition; if it’s the only way you can get away safely, it’s sufficient (between these 2 categorizations of the defense, the better one for battered women is MPC)
        • Even if the deadly force is not imminent but the only way to prevent the force is to act now then it would be sufficient under the MPC – see particularly in domestic violence situations
      3. Unlawful
        1. A person may not defend himself against use of lawful, i.e. justified, force
          • Reasonable force applied by a police officer in the performance of his duties is justified; cannot shoot a police officer who is chasing you, even if she shoots you
        2. Even a police arrest can become unlawful if excessive force is used (i.e. tasing for loitering)
  • Any conduct that constitutes a tort or crime is unlawful, even if the person might have a valid legal excuse (such as insanity)
  1. Reasonableness (objective and subjective components)
    1. Reasonableness of force used
      1. Magnitude of the force used in defense should not be excessive given the circumstances (i.e. shooting for a punch not OK)
        • Must use the least severe force necessary (not necessarily resulting in death)
      2. What is reasonable force?
        • Jury must determine that ∆ subjectively believed that he needed to use deadly force to repel an imminent unlawful attack, and
        • ∆’s belief must be one that a reasonable person in the same situation would have possessed
          • If D’s belief is genuine but unreasonable, he loses his self-defense claim, although an increasing number of jurisdictions allow an unreasonably mistaken actor to assert an “imperfect” or “incomplete” claim of self-defense, mitigating the offense to manslaughter
          • Should ∆’s characteristics (physical, mental, prior history, etc.) be considered? In general, the law provides that, in determining whether ∆’s self-protective acts were reasonable, the factfinder should hold the accused to the standard of the “reasonable person in the actor’s situation” (“Situation” is ambiguous); modern juries typically are entitled to consider the relevant knowledge ∆ had about the aggressor, the physical attributes of all persons involved, and ∆’s circumstances include any prior experiences which might provide a reasonable basis for his belief
            • Trend is to allow for more subjectivity in the reasonable person analysis, although states are split
          • Prof’s views: they allow that a woman being followed by a man has a reasonable fear, but her past negative experiences with a man are not relevant; split in jurisdictions: some courts are going more and more subjective, others not, but trend is to allow subjectivity in the reasonable person analysis
  1. Reasonableness of the threat of harm
    1. Privilege of self-defense is based on reasonable appearances, rather than on objective reality
      • Thus, a person is justified in using force to protect himself if he subjectively believes that such force is necessary to repel an imminent unlawful attack, even if appearances prove to be false
      • Courts are increasingly applying a standard of the “reasonable person in the ∆’s situation” in lieu of the “reasonable person” standard; factors that may be relevant to the ∆’s situation or circumstances include:
        • The physical movements of the potential assailant
        • Any relevant knowledge the defendant has about that person
        • The physical attributes of all persons involved, including the defendant
        • Any prior experiences which could provide a reasonable basis for the belief that the use of deadly force was necessary under the circumstances
  1. Imperfect self defense – allowed by some jurisdictions
    • ∆ unreasonably believes that the attack is deadly when in fact it’s not
    • ∆ who fails to assert that his belief was reasonable but genuinely had the belief can use this defense to mitigate his charge to one of manslaughter
  2. Special problems
    1. Battered woman syndrome (pg. 242 of supp. for detailed analysis) – see State v. Norman
      1. Expands imminent deadly force to highly dangerous situations where based on the woman’s situations, she can make a decision about inevitable force (expands imminent deadly force to inevitable force)
      2. Imports into reasonableness a battery of experiences that we don’t allow for others (learned helplessness – common feelings of battered women, there are no other options)
      3. Jury instruction
        1. Confrontational killing: courts allow jury instruction of self-defense
        2. Non-confrontational killing: overwhelming majority will not give jury instruction for self-defense
  • Hired third-party killing: absolutely no jury instruction on self-defense
  1. Expert testimony must meet a number of requirements in order to be admitted:
    1. Expert (exclusive) – Outside knowledge of jury, outside range of experience of jurors
    2. Effective – Needs to help jurors make an expert, legal decision
  • Established – Can’t be just a theory unless it’s an established, accepted theory
  1. Not all jurisdictions have accepted (BWS) – some say let’s “split the baby” and just lighten their sentences
  2. Jurisdictions split on use of BWS to allow for self defense claims, & 3 kinds of cases appear:
    1. Where ∆ and abuser currently in conflict (can use regular self defense)
    2. During a lull in the conflict or abuse ie sleeping (need to modify traditional notions of imminent – split among jurisdictions – MPC more applicable because there is necessary force)
  • Hiring someone to kill the abuser (not permitted, though there may be other claims that work)
  1. Risk to Innocent Bystanders
    1. Courts apply a transferred-justification doctrine, similar to the transferred-intent rule: a defendant’s right of self-defense “transfers” (just as intent to kill does) from the intended to the actual victim
    2. ∆, justifiably killing V in self-defense, accidentally wounds or kills an innocent bystander – his right of self defense will transfer and he will not be held culpable… but if he fires a weapon wildly and carelessly, jeopardizing the safety of known bystanders, some courts (MPC) may hold him guilty of manslaughter or reckless endangerment (latter if no one is killed)
  2. Resisting an Unlawful Arrest:
    1. Under common law, a police officer may use only as much force as is necessary to make an arrest, and may never use deadly force to arrest a misdemeanant
      1. If excessive force is used, police officer is an aggressor, and citizen is justified in protecting himself.
    2. Rule: A person may use as much force as is reasonably necessary, short of deadly force, to resist an illegal arrest
      1. If arrestee uses deadly force, he is guilty of manslaughter rather than murder
      2. Most states now limit or have abolished the defense in non-excessive-force circumstances.
    3. Cases
      1. United States v. Peterson [pg. 500]– aggressor status
        1. Decedent was stealing wipers from ∆’s car; ∆ came out to protest, went back in for a gun, came back out and told decedent he would shoot him if he moved; decedent came at ∆ with a lug wrench
        2. Tried for self defense, saying he was reasonably in fear for his life
        3. Two issues the court looked at:
          1. Aggressor status – did ∆ contribute to the confrontation?
            • Court considered the aggressor to be the one who:
              • Provokes a conflict (moving verbal disagreement to a physical one, moving non-deadly circumstances to deadly ones… level of deadliness i.e. knife vs. gun doesn’t matter)
              • Precipitates the altercation
              • Is not free from fault in the difficulty
              • Incites the attack
              • Commits an affirmative unlawful act reasonably calculated to produce an affray foreboding injurious or fatal consequences
            • If one is the initial aggressor, he must somehow lose aggressor status to be able to invoke the right of self-defense… how does one lose aggressor status?
              • Communication of retreat or intent to withdraw and in good faith attempts to do so
              • A non-deadly aggressor meat with disproportional force automatically regains the right of self defense (in most states)
              • Who had the aggressor status when the defensive force was used?
  1. Did ∆ make an attempt to retreat or resolve the conflict peacefully?
    • Use of deadly force must be necessary
    • Threat to ∆’s life must be imminent (at the moment of the killing)
    • Defense must be proportionate – cannot shoot to prevent a slap
  2. Peterson (∆) was the aggressor
    1. Went and got a gun
    2. Ignored other means of resolving situation (get license plate, call fuzz)
  • Decedent was about to leave… even if decedent was originally the aggressor, when Peterson reappeared in the yard with a gun, he became the aggressor
  1. Castle doctrine did not apply b/c he was the aggressor
  1. State v. Norman [pg. 532]– imminency (battered woman case, see 242 of supp. for more detailed analysis)
    1. Facts
      1. Woman constantly beaten, degraded, forced into prostitution, threatened… believed her life was in danger … suffering from battered woman syndrome (BWS)
      2. She shot her husband while he slept
    2. Issue: Was the danger to the ∆ imminent if he was asleep, or was she justified by self-defense because it was her only opportunity to prevent harm to herself, even though there was no threat of harm at that exact moment? (more like the MPC view of imminence)
    3. Appellate holding: a jury could find that self-defense was justified; new trial
      1. ∆ suffered from battered woman syndrome
      2. Under certain circumstances, it is not necessary to require a battered spouse to wait until a deadly attack occurs or that the victim be attacking the victim at the moment of ∆’s act (stretching the notions of imminence to accommodate a particular kind of reasonable person, or a particular set of circumstances)
  • Jury could find that self defense was OK, even though danger was not imminent
  1. Supreme Ct. holding: no self-defense; threat of harm was not imminent if he was asleep
    1. We cannot stretch the definition of “imminent” to fit the facts – ∆ was not faced with a decision of immediately being killed or killing him instead
    2. Woman had opportunity to use other methods to avoid harm; or, once armed, she could wait until he woke up and tried to hurt her
  2. People v. Goetz [pg. 510] – reasonable belief
  3. State v. Wanrow [pg. 525]– reasonable belief
    1. Facts
      1. Decedent had attempted or been accused of several molestations
      2. Parents in the neighborhood gathered kids into one home
  • Some men brought decedent to the home to apologize
  1. ∆ (woman) tries to get man to leave, she turns around and he is right behind her so she shot him
  1. Reasonable?
  1. Defense of Others
    1. In General
      1. A person is justified in using force to protect a third party from unlawful use of force by an aggressor if, and to the extent that, the third party would apparently be justified in using force in defense of self
        1. This defense can now extend to strangers, not just relatives
      2. Jurisdictional approaches:
        1. Reasonable appearances rule (majority) – ∆ can assert his right to use defense of others so long as it reasonably appeared the other had a right of self-defense (see elements of self-defense, above)
        2. Alter ego rule (much less common in modern law) – ∆ may assert his right to use defense of others so long as the other person actually had a right to use self-defense (see elements of self-defense, above)
        3. Hypo: I’m being arrested by plainsclothes cops; I know they’re cops. Alex doesn’t know they’re cops and he jumps the cops. Alex cannot assert a defense of others claim under alter ego rule. Now, most jurisdictions provide a reasonable appearances rule – so long as Alex reasonably thinks there’s a situation requiring self defense, he is justified
      3. Defense of fetus: only the pregnant woman can protect her own fetus
        1. People v. Kurr [pg. 549]
          1. Facts
            • Decedent punched pregnant ∆ twice in the stomach, she warned him, then stabbed him to protect her unborn children
          2. Can defense of others be used as a defense for unviable fetuses? In this jurisdiction, yes
        2. MPC 3.05(1)
          1. Subject to retreat provisions, MPC justifies force by an intervenor in order to protect a third party if:
            1. He uses no more force to protect the third-party than he would be entitled to use in self-protection, based on the circumstances as he believes them to be;
            2. Under the circumstances as he believes them to be, the third party would be justified in using such force in self-defense; and
            3. He believes that intervention is necessary for the third party’s protection
          2. Retreat rules:
            1. The intervenor is only required to retreat before using force in protection of a third party in the unlikely circumstance that he knows that such retreat will assure the third party’s complete safety
            2. The intervenor must attempt to secure the third party’s retreat if the third party herself would be required to retreat, if the defendant knows that the third party can reach complete safety by retreating
            3. Neither the intervenor nor the third party is required to retreat in the other’s dwelling or place of work to any greater extent than in her own dwelling or place of work
  • Defense of Habitation
    1. In General
      1. A person may use deadly force to protect his home… approaches usually refer to some kind of reasonableness standard (like any consideration of the reasonable man standard, personal characteristics may be considered)
      2. 3 Approaches in common law
        1. Broad – traditional common law rule
          1. “A man’s home is one place where he may rest secure in the knowledge that he will not be disturbed by persons…without proper invitation or warrant, and that he may use all of the force apparently necessary to repel any invasion of his home”
            • Whether intruder constitutes an actual threat is irrelevant
            • ∆ must believe that this is the only way, and that the force is necessary in order to repel that invasion.
            • Reasonable person standard under the circumstances
          2. Dis-invitation is a different scenario & usually only applies to someone who hasn’t entered yet
  • No true proportionality requirement because I can assume that any invasion of my home is a threat that needs to be repelled with deadly force
  1. Middle approach
    1. Person may use deadly force to prevent unauthorized entry into a home “if there exists reasonable and factual grounds to believe that unless so used, a felony would be committed inside”
    2. Requirements: a person may use deadly force to defend his habitation if he reasonably believes that:
      • The other person intends an unlawful and imminent entry of the dwelling [unlawful entry]
      • Deadly force is necessary to repel the intrusion (any felony, but court might choose to interpret it narrowly – only deadly felony, see narrow approach below) [force necessary to prevent entry]
      • The intruder intends to injure him or another occupant, or to commit a felony therein [impending felony]
    3. Narrow approach:
      1. Person may use deadly force “if the intruder also represents an apparent threat to the personal safety of an occupant”
        • “Apparent” implies an objective view; no need to warn you are about to use deadly force if it is objectively apparent that occupant’s safety is threatened
      2. Supplement: A person may use deadly force if he reasonably believes that:
        • The other person intends an unlawful and imminent entry of the dwelling;
        • The intruder intends to commit a forcible felony therein or kill or seriously injure an occupant; and
        • Deadly force is necessary to repel the intrusion
  • Note that this still requires:
    • Unlawful entry about to occur
    • Intruder intends to kill or injure an occupant (reasonableness of belief is inherent in “apparent”; not enough if it is apparent that invader just wants to rob you)
    • Such force is necessary to prevent it
  1. MPC approach
    1. A person may use deadly force upon an intruder if he believes that:
      • The intruder is seeking to dispossess him of the dwelling
      • The intruder has no claim of right to possession of the dwelling; and
      • Such force is immediately necessary to prevent dispossession
    2. The ∆ may use deadly force even if he does not believe that his or another person’s physical well-being is jeopardized
  2. Use of spring traps
    1. An increasing number of states now prohibit the use of a mechanical device designed to kill or seriously injure an intruder to protect property, even if the possessor would be justified in using deadly force in person
    2. The Model Penal Code bans the use of such devices as well [MPC § 3.06(5)(a)]
    3. People v. Ceballos [pg. 553]
      1. Facts
        1. Man had been previously robbed, set up a spring gun trap pointed at the door; 16yo broke in and was shot
      2. Is this defense of property or defense of habitation? (Prof thinks maybe property)
        1. Home = place where one sleeps… he rarely slept in garage, but did sometimes
      3. Is the force warranted?
        1. Use of a spring gun is not justifiable in this case
        2. Homicide is justifiable when:
          • Resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person
          • When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony
            • Usually a forcible felony (burglary is not always a forcible felony)
            • You must have a reasonable belief that a felony is intended
          • An indirect use of force (like a spring gun) is justifiable only in a situation where a direct use of force would be justifiable (it was not in this case)
  1. A defense of this type has not discretion
    • Will kill anyone, even if a child or fireman or hobo with no intent to commit a felony within
    • Actor could decide that deadly force is not warranted, but a trap like this cannot decide as such
  2. Defense of Property
    1. Common Law
      1. You cannot use deadly force in defense of property under any circumstances
        1. Murder as a justifiable response should only be justifiable in response to those felonies that actually threaten harm to human life, not just property
      2. One can use non-deadly force to prevent the unlawful taking of property, but that force must be only as much as required to prevent the taking, and he must reasonably believe such force is necessary to prevent imminent, unlawful dispossession of the property
        1. Once a person is dispossessed of his property, his right to use force to defend his interest in it is extinguished… there is a limited right to retrieve immediately after losing, if a person acts promptly after dispossession to regain or recapture his property (hot pursuit)
      3. Claim of Right
        1. When a person asserts a claim of right to property in the possession of another and seeks to reclaim such property, the possessor is not justified in using force to thwart the dispossession if he knows, believes, or as a reasonable person should believe, that the claimant has a legitimate claim of right to possession of the property in question
        2. Since the use of force to protect property is legitimate only if the act/attempted act of dispossession is unlawful, in such cases of a legitimate claim to property, the act of dispossession is lawful
        3. No right to defend against dispossession of property that is being lawfully repossessed (ie after default)
      4. Property you need to stay alive (anti-venom; oxygen): self defense immediately necessary (more under MPC); take the common thread of all defenses – imminent unlawful threat, necessary and proportional response; property that has life-saving consequences loses its status as merely property, and it’s not just defense of property but becomes self defense
    2. MPC
      1. Essentially follows the common law
      2. 06(1)(a) – general rules regarding non-deadly force
      3. 06(3)(a), (b) – limitations on the use of non-deadly force
      4. 06(1)(b) – recapture
    3. Law Enforcement
      1. Police officers are able to commit acts that would otherwise be considered crimes in order to meet the goals of public interest – in what circumstances are their acts justifiable?
        1. At common law, police could use deadly force to prevent any felony (when all felonies were capital crimes)
        2. Now, police can use deadly force to prevent any forcible felony, but never to prevent commission of a misdemeanor or to effectuate arrest of a misdemeanor
        3. Most limitations on the acts of police are constitutional ones
      2. Tennessee v. Garner [pg. 559]
        1. Cop is called to scene of crime where he finds minor fleeing; young black kid is scaling wall and clearly unarmed; pig shoots him in back of the head
        2. Constitutionality of the use of deadly force to prevent escape of an apparently unarmed felon
        3. Police officer may not use deadly force to effect an arrest (i.e. seize a person) UNLESS:
          1. The officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others (never to prevent commission of a misdemeanor or to effectuate arrest of a misdemeanant); and
          2. Such force is necessary to prevent escape
        4. MPC
          1. In a departure from common law principles but in accord with the modern trend, a person may not use force to resist an arrest that he knows is being made by a police officer, even if the arrest is unlawful (e.g., without probable cause) [MPC § 3.04(2)(a)(i)]
          2. However, this rule does not prohibit use of force by an arrestee who believes that the officer intends to use excessive force in effectuating the arrest
        5. Necessity – last resort, when no other defenses work – affirmative defense
          1. In General
            1. The principle of necessity states that if circumstances require a choice among various evils, an actor is justified if he chooses the least harmful option
              1. Note that if faced with your own death or killing another, law expects you to die
                1. No assurance the person will actually kill you, whereas if you kill another the harm is assured; also, no one life is more valuable than another
              2. Six factors from Nelson v. State (first 3 usually considered, last 3 not always but trend towards including them)
                1. The act charged must have been done to prevent a significant evil; doesn’t have to be criminal, just harm (∆ must expect, as a reasonable person, that his action will be effective in abating the danger that he seeks to avoid – there must be a direct causal relationship between his action and the harm to be averted)
                2. There must have been no adequate alternative; the only way (there must be no effective legal way to avert the harm)
                3. The harm caused must not have been disproportionate to the harm avoided (the harm that the defendant will cause by violating the law must be less serious than the harm that he seeks to avoid; in balancing the harms, first, ∆’s actions should be weighed against the harm reasonably foreseeable at the time, rather than the harm that actually occurs; second, given the facts as they reasonably appear, the issue is not whether ∆ believes he made the right choice, but whether ∆’s value judgment was in fact correct as determined by judge or jury)
                4. Available only in an emergency (actor must be faced with a clear and imminent danger)
                5. Harm measured is the one that is reasonably foreseeable, not the harm that actually occurs (lawmakers must not have previously anticipated the choice of evils and determined the balance to be struck between the competing values)
                6. Finally, the predicament can’t be the actor’s own fault (∆ must not have substantially contributed to the emergency or wrongfully placed himself in a situation in which he would be forced to engage in criminal conduct)
              3. 3 potential limitations:
                1. Some states limit the defense to emergencies created by natural (as distinguished from human) forces
                2. Usually does not apply in homicide cases (except perhaps very rarely, as an excuse) (even if numerous people could be saved by killing one person, we want instead individuals to utilize every possible alternative other than ending a human life)
                3. Some states limit the defense to protection of persons and property; a person may not protect reputation or economic interests using necessity
              4. Civil disobedience
                1. Necessity generally not allowed as a defense for civil disobedience
                2. US v. Schoon [pg. 566]
                  1. Protesters splash fake blood in IRS office in protest of US involvement in El Salvador
                  2. ∆s try to invoke necessity defense (it was necessary to do use civil disobedience to try to prevent US involvement)
  • Majority
    • ∆s fail to satisfy requirements for necessity
    • Legislature has already spoken on policy
      • Protest only indirectly addresses the harm
    • Court drew distinction between efficacy of direct vs. indirect civil disobedience
      • Direct – involves protesting the existence of a law by breaking that law or by preventing the execution of that law in a specific instance in which a particularized harm would otherwise follow
      • Indirect – violating a law or interfering with a gov’t policy that is not itself the object of protest
    • Court held that necessity defense could not be used to defend indirect civil disobedience
  1. MPC – Choice of Evils
    1. Necessity under the MPC is an affirmative defense under “justification” called “choice of evils”
    2. Conduct actor believes to be necessary to avoid harm or evil to self or other is justifiable if:
      1. He believes that his conduct is necessary to avoid harm to himself or another
      2. Harm or evil to be avoided by the conduct is greater than that of the offense charged
        • The determination of what constitutes a lesser harm is not left to the actor’s evaluation but rather to the judge or jury at trial.
  • Neither the Code nor anything in the law provides an exception for the specific situation involved
    • A legislative purpose to exclude the justification does not otherwise plainly appear
  1. When the actor was reckless or negligent in bringing about the situation requiring the choice of evils, the defense is unavailable in any prosecution for which recklessness or negligence will suffice


  1. Nelson v. State [pg. 560]
    1. ∆ took construction trucks to free his stuck vehicle
      1. Argued that the crime was necessary to prevent further damage from his vehicle and therefore justified
    2. Necessity requires:
      1. Act charged must have been done to prevent a significant evil
      2. There must have been no adequate alternative
      3. The harm caused must not have been disproportionate to the harm avoided
      4. Available only in an emergency
      5. Harm measured is the one that is reasonably foreseeable (not the harm that actually occurs)
      6. Predicament can’t be the actor’s own fault
    3. ∆ declined help when passersby offered to call police or tow truck
    4. Claimed the harm he prevented was truck tipping over, but truck stayed upright for 12 hours
    5. After 12 hours, ∆ took a snooze
  2. Queen v. Dudley and Stevens [pg. 572] (see above in Proportionality of Punishment)


  1. General
    1. Types
      1. Insanity
      2. Infancy
      3. Duress
    2. Rationale
      1. Purpose of the system
      2. Free choice theory
      3. Character theory
      4. Causation theory
    3. Deterrence
      1. ∆ is non-deterrable as he had no choice and his choice is heavily circumscribed and he did not cause harm (the coercer did)
    4. Duress (similar to necessity) – affirmative defense
      1. Common law
        1. Excuse defense, although that is debatable, which results in acquittal (but cannot be used as a defense of murder)
        2. Defense that ∆ had to commit the crime because someone forced him to (i.e. gun to head)
        3. Four requirements (see Contento Pachon):
          1. Immediate threat of death or serious bodily injury (threat to property damage or economic security will not suffice)
          2. Reasonable belief that there is no other way to get out of situation
          3. Well-grounded view that threat will be carried out (threat doesn’t have to be real, but ∆ has to honestly believe it is)
          4. ∆ cannot be at fault in getting into the coercive situation
        4. Duress as an excuse defense
          1. Not appropriate to hold actor culpable; duress is sometimes characterized as a justification, but more often as an excuse
          2. Based on the excuse rationales above, duress appears more to be an excuse defense than necessity because the ∆ is non-deterrable, his choice is heavily circumscribed and he did not cause the harm (the coercer did)
          3. Duress when considering the rationales of criminal law
            1. Purpose of the system
              • Purpose is to deter bad behavior; if person is not culpable (i.e. by being coerced by duress) there is nothing to deter (telling him there is a criminal sanction isn’t going to make a difference)
            2. Free choice theory
              • Coerced person is not freely choosing, it is the will of the coercer that is acting (similar to someone acting from an insane delusion)
  • Character theory
    • In the context of duress, there is no indication of bad character… all we have is an indication of will being overcome
  1. Causation theory
    • We punish people who bring about (cause) social harm; in duress, it’s not the actor, the ∆, who brings about the social harm (we have another person on whom we can place criminal culpability)
  2. Cannot be used in defense of murder (but in felony murder, duress can be used in defense of the underlying felony)
    1. A few states allow an imperfect duress defense to intentional killing which mitigates the offense to manslaughter
    2. If gun to your head and you are told to commit murder, court will not recognize that as a defense (expected to allow yourself to be killed rather than kill another)
  3. MPC 2.09(1)
    1. Excuse defense, but like at CL, one could argue it is a justification
    2. Duress is and affirmative defense to unlawful conduct by the ∆ if:
      1. ∆ was compelled to commit the offense by use or threatened use of unlawful force upon ∆ or another person
      2. Person of reasonable firmness in her situation would have been unable to resist the coercion
    3. Defense unavailable if ∆ exposed self to the threats, purposely, knowingly or recklessly
    4. No imminence requirement like in CL, and can be used in homicide cases
  4. Differences between duress and necessity
    1. Necessity is usually a natural threat, duress can be a human threat
    2. Necessity sometimes considered to lack actus reus, duress considered to have lack mens rea (?)
      1. With duress, mens rea is with another actor (in Contento, it is with the person who forces ∆ to smuggle)
    3. With necessity, there is no one we can hold culpable; with duress, there is a party who has a culpable mind, though it is not the ∆
  5. Cases
    1. US v. Contento Pachon [pg. 583]
      1. ∆ forced to swallow and smuggle 129 balloons of cocaine under threat of harm to his family
      2. 3 elements (though this varies from jurisdiction to jurisdiction)
        1. An immediate threat of death or serious bodily injury from a human being to self or another
        2. A well grounded fear that the threat will be carried out
  • No reasonable opportunity to escape the threatened harm
  1. Duress defense only available where ∆ was not at fault in getting into the coercive situation
  1. People v. Unger [pg. 591]
    1. Guy escapes from prison after being threatened with being raped
    2. Argued duress, but trial court denied a jury instruction on the defense
      1. Prisoners who threatened ∆ did not possess the mens rea of escape for him (didn’t say “escape or we will rape you;” ∆ made the choice to escape)
    3. In general, courts are hesitant to allow necessity as a defense to prison escape, but will allow it in cases of intolerable prison conditions, with restrictions
      1. Primary restriction is and ∆ must make a bona fide effort to surrender or return to custody once the coercive power of the threat is gone
    4. People v. Anderson [pg. 597] – potential as a defense to murder


  1. General
    1. Uncertainty and difference amongst states
      1. When should intoxication serve to reduce the culpability of ∆?
        1. Was it voluntary or involuntary? Specific or general intent crime?
        2. How does this ∆ assert that this affected his culpability?
          • Could not form requisite mens rea?
          • Caused an autonomous state?
          • Caused a mistake of fact that a sober person would not make?
        3. What kind of offense is ∆ being charged with? (specific vs. general intent vs. strict liability)
        4. Degree of intoxication is not as important as type of intoxication (except pathological)
      2. Voluntary intoxication
        1. Three approaches (ultimately, must look at state statute)
          1. Montana – never allowed as a defense
          2. Traditional – split between specific and general intent
            • Specific intent crime
              • Intoxication, whether voluntary or involuntary, negates the mental aspect (mens rea) of the crime and intoxication is a defense
              • “I’m too intoxicated to intend to … “
            • General intent crime
              • With general intent crime, there is not a specific mental culpability to be met
              • Voluntary intoxication implies that the culpability is met by the intent to become intoxication and intoxication is not a defense (old idea that intoxication itself is morally bad and provides the moral culpability, fulfilling the mens rea requirement for any crime committed while intoxicated)
            • This split between specific and general intent crimes can lead to bizarre results – rape is general intent, so intoxication would not be a defense, but attempted rape is specific intent, and intoxication would be a defense (wildly different results for essentially the same mens rea)
            • Some states have abolished the defense entirely (except as a mitigating defense, ie from murder to manslaughter)
  • MPC – voluntary intoxication is the equivalent of a mens rea of recklessness
  1. As with insanity defense, there is a tension btwn the need to treat the addict and the need to protect the public from the social harms committed by addicts
    1. Prolonged use of substances can lead to brain damage akin to insanity
      • In such cases, insanity (intoxication-induced or alcohol-induced insanity) may be asserted, and may excuse the criminal behavior
      • On exam, argue insanity (but note that you are not discussing intoxication)
    2. Involuntary intoxication
      1. Involuntary intoxication is a defense to every crime where voluntary intoxication is a defense AND to general intent crimes as well
      2. Four types of involuntary intoxication:
        1. Coerced intoxication
          • Someone forces you to use an intoxicant/medication against your will (ie hazing rituals)
        2. Pathological
          • Person voluntarily takes intoxicant but experiences an unexpectedly excessive result
          • Intoxication “grossly excessive in degree, given the amount of the intoxicant, to which the actor does not know he is unusually susceptible” (ie drug mixing)
          • Doesn’t work if the defendant has experienced it before; if he does it again, we will argue that he is at least reckless
  • Innocent mistake
    • ∆ did not know, or was tricked with respect to, the character of the substance (ie ate a brownie and truly did not know it was spiked)
  1. Unexpected intoxication from ingesting medically prescribed drugs
    • Under medical advice and without ∆ knowing its potentially intoxicating effects
      • Only works when ∆ takes it in accordance with medical advice & must not have had a convo with physician about the side effects
    • Might want to bring in expert testimony/doctor’s testimony
    • Problems of drug interactions
  2. Addiction and insanity caused by intoxication
    1. Even where addiction deprives a ∆ of free will to some extent, the courts still feel ∆ should be held culpable for their actions. Any kind of voluntary intoxication leads to culpability.
    2. As with the insanity defense, there is a tension between the need to treat the addict and the need to protect the public from the social harm committed by addicts
    3. The law distinguishes between mental impairment that does not extend beyond the period of voluntary intoxication, for which no defense is available, and insanity resulting from long-term use of drugs or alcohol. If the unsoundness of mind, although produced by long-term alcohol or drug abuse, has become “fixed” or “settled” the general, but not universal, rule is that the defendant may assert a traditional insanity defense.
    4. Instead of raising intoxication (so many limitations on it in many states that you are likely to lose); might want to argue temporary insanity that might lead to excusing the criminal behavior and get some level of acquittal. Temporary insanity because of intoxication not available at common law
  3. MPC
    1. Voluntary or involuntary intoxication can be a defense to negate the mens rea of a crime, but MPC also allows voluntary intoxication to serve as evidence of recklessness (but not purpose or knowledge)
      1. Remember that MPC does not differentiate btwn general and specific intent crimes
    2. An actor’s intoxicated condition at the time of a crime may exculpate him in two circumstances:
      1. With one exception, any form of intoxication is a defense to criminal conduct if it negates an element of the offense
        1. Exception: if a person, due to self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial in a prosecution for which recklessness establishes criminal liability (IOW, in a prosecution for recklessness, a voluntarily intoxicated defendant cannot negate proof of recklessness by introducing evidence of his intoxication-caused lack of awareness of a risk; as a practical matter, this means that a negligent actor may be convicted of a crime of recklessness)
      2. Pathological and involuntary intoxication are affirmative defenses, if the intoxication causes the actor to suffer from a mental condition comparable to that which constitutes insanity under the Code
    3. Insanity claim allowed if ∆ suffered from a mental disease caused by long-term use of alcohol or drugs
  4. When you have an intoxication question, you have to ask 3 questions:
    1. How did the defendant become intoxicated?
      1. Was it voluntary or involuntary? (voluntary = ∆ knows what he is taking is an intoxicant and is imbibing it willingly)
    2. How does the defendant claim it affected culpability? –
      1. Was it because they lacked mens rea (wasn’t able to form specific intent) or does the ∆ say they became an automaton (no longer aware of bodily functions, could help in even strict liability)
      2. Was it to the point of not knowing right from wrong, creating delusion, some kind of insanity? Automatism: no connection between brain and body.
    3. What kind of offense is being charged?
      1. Is it a specific intent crime, or is it a general intent crime (might have to rely on involuntary intoxication because many states don’t allow voluntary in general intent), or is it strict liability crime (in which case it doesn’t matter if the defendant was intoxicated) and why?
    4. Cases
      1. US v. Veach (traditional common law) [pg. 603]
        1. Facts
          1. Drunken ∆ becomes belligerent upon arrest; assaults and threatens to kill arresting officers
          2. Charged with assault and threatening to assault (§ 111) with intent to impede or interfere with a law officer in the performance of his duty (§ 115)
        2. ∆ claims he was too drunk to have the specific intent to impede or interfere
          1. Permitted as a defense (specific intent)
          2. However, he cannot use intoxication as a defense for the assault charge (general intent)
        3. Montana v. Egelhoff [pg. 606]
          1. Facts
            1. ∆ intoxicated; 2 friends found dead from gunshots and ∆ found with .36 bac and the gun
            2. ∆ asserts that due to his intoxicated state, he was incapable of committing crime
  • Jury instructed they could not take into account the ∆’s intoxication in determining mens rea
  1. ∆ found guilty at trial
  1. Majority: Montana’s law is constitutional; the “new common law rule”, permitting the use of intoxication as a defense in specific intent crimes, is not a fundamental principle of law
  2. Minority: it is a fundamental principle that the prosecution be required to prove each and every element of the offense; this reading equates the mens rea of a sober person with one voluntarily intoxicated
    1. State has not properly worded the statute to constitutionally reduce the burden on the prosecution
  3. Insanity – affirmative defense
    1. General
      1. Last resort defense
        1. If you establish insanity, ∆ will be held/hospitalized and may never be released
          1. A person will be detained so long as he is mentally ill and dangerous to himself or others
          2. ∆ will be held until he meets the requirements for release, and could be held longer than he would had be been convicted of the crime that triggered the commitment
        2. Also, the place where they are held may be much worse than being held in a prison
      2. Burden
        1. Insanity is an affirmative defense – the ∆ has the initial burden of producing evidence regarding his mental condition in order to raise the insanity defense
        2. Must prove his insanity by a preponderance of the evidence (or clear and convincing evidence in federal courts)
      3. Four states have abolished the insanity defense, but permit a ∆ to introduce evidence of his mental disease or defect in order to rebut the prosecution’s claim that he possessed the requisite mental state
    2. Tests of Insanity (from State v. Johnson, pg. 618) (supplement pg. 350)
      1. General
        1. Tests vary throughout jurisdictions (M’Naghten test is dominant; MPC is strong but less so)
        2. General components of the insanity tests:
          1. Mental disease or defect – what is a disease that is sufficient to exculpate?
            • Need to have this except if the case facts would be unimaginable if the people involved were NOT suffering from a mental disease or defect; appropriate to have medical evidence; not enough that the disease should just be in the DSM-IV – ADD /ADHD has not been accepted as a mental illness by courts; courts are responsive to brain injury leading to hallucinations, etc., schizophrenia; but not depression, OCD, etc. Courts prefer to see some kind of physical evidence
            • Roper v. Simmons: executing a juvenile is cruel and unusual punishment… For the first time, court took evidence of brain scans showing that a teen’s brain is different from an adult brain; prof mentioned this because besides DNA, this is the closest we’ve come to a marriage between medicine and law
            • How established is this mental disease or defect? How much of the medical community would agree that this constitutes a severe mental disease or defect? If you have the majority behind you, you’re in good shape…otherwise, courts are not particularly receptive
          2. Know vs. appreciate
            • Know is a very limited cognitive environment but appreciation is broader (better for ∆)
              • I may know I’m killing, but may not appreciate what killing means (broader understanding of effect of one’s acts, allowing the nuances in mental disease to come out)
            • Cognitive and volitional
              • Is it all about understanding of right and wrong? Is it about ability to control one’s actions? Both?
              • M’Naghten only has the cognitive aspect – do they know the nature and quality of their act; MPC includes volitional – can they control what they’re doing
              • Have to determine whether the person lacks something cognitively or volitionally, because if your state uses M’Naghten, and your client is volitionally challenged, you’re in trouble
  1. Wrong – moral or legal
    • If an individual does not understand that his act is morally wrong (even if he knows it’s not legal), there may be a defense
      • ie thinks he is killing Hitler, or God told him to do it (because God defines right and wrong)
    • MPC has provided an option – can say either they understand the criminality of their act, or can go the wrongfulness road
  2. The M’Naghten Rule
    1. Person is insane if (1, 2, and either 3 or 4 required):
      1. At the time of committing the act,
      2. The person was laboring under such a defect of reason, from a disease of the mind, that
  • Either he did not know the nature and quality of his act [didn’t know what they were doing, ie thought they were squeezing lemons instead of someone’s neck], or
  1. He did not know the nature and quality of his act, he did not know that what she was doing was wrong
  1. This test focuses on the cognitive deficiency (all about the “knowledge”; not all recognized mental illnesses will qualify)
    1. Not focused on ability to control actions, but ability to know right from wrong
      • Ambiguity about what is meant by “know” (mere knowledge, vs. appreciate) and “wrong” (moral or legal)
    2. Limited to only the most serious defects (not everything in the DSM)
  2. To establish disease of the mind we need a psychiatrist or evidence that shows a gross disparity from acting in the norm, a pattern of behavior or a trigger event that caused the mental illness
  3. Benefits
    1. One element of a mental illness is an inability to control one’s impulses or conduct themselves in social situations, and these should be considered in assigning culpability
  4. The “Irresistible Impulse” or “Control” Test (Parsons)
    1. Broadens the scope of the M’Naghten rule to encompass mental illnesses which affect volitional capacity
    2. If the disease of the mind creates delusion as to the act, or the inability to distinguish right from wrong, or the inability to refrain from doing the act, there is no responsibility
      1. Goes to the free will aspect of criminal responsibility
    3. Three factors:
      1. ∆ must have acted from an irresistible and uncontrollable impulse (but, how do you determine what impulses are resistible?)
      2. ∆ must have lost the power to choose between right and wrong and to avoid the act because her free agency was destroyed (problematic because it’s hard for psychiatrists to agree on what point free will was completely destroyed – spectrum for free will)
  • ∆s will has been (involuntarily) so completely destroyed that her actions are beyond her control, so the alleged crime was solely the product of the mental disease
  1. The Durham test (The “Product” Test)
    1. “There must be a relationship between the disease and the criminal act and the relationship must be such as to justify a reasonable inference that the act would not have been committed if the person had not been suffering from the disease”
    2. Causal link is the key here
    3. But, this test was too vague – finally abandoned in Brawner
  2. The Model Penal Code Approach (US v. Brawner, 1972)
    1. “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 either to
      1. Appreciate the criminality [wrongfulness] of his conduct or
      2. To conform his conduct to the requirements of the law
    2. Requires substantial, rather than complete, impairment; includes volitional and cognitive components
    3. Terminonlogy
      1. Does not require Parsons’ irresistible impulse aspect
      2. “Lacks substantial capacity” rather than ambiguous “knows” from M’Naghton Test
  • “Wrongfulness” is broader than “criminality” (some states adopt this test but use “wrongfulness” instead)
  1. “Appreciate” is much broader than under the common law
  1. Federal test
    1. US Congress statutory definition of insanity
    2. Person is excused if he proves by clear and convincing evidence that, at the time of the offense, as a result of a severe mental disease or defect, the ∆ was unable to appreciate:
      1. The nature and quality of his acts; or
      2. The wrongfulness of his acts
    3. Mental disease or defect does not otherwise constitute a defense
  2. State v. Wilson [pg. 631]
    1. Facts
      1. Schizophrenic ∆ believes V is systematically destroying his life; ∆ shoots V several times and confesses
    2. ∆ convicted of murder
    3. Issues: what is “wrongfulness” as defined by the statute? Is there a moral component, or is it entirely a legal standard? Who’s viewpoint should wrongfulness be evaluated from?
    4. Analysis
      1. Legislature intended moral wrongfulness to be considered (or else they would have specified otherwise and said “criminality” instead of “wrongfulness”) – “wrongfulness” means to judge according to societal values
      2. If society knew what defendant knew, society would relieve the defendant of culpability (facts defendant knew, not beliefs of defendant); but if defendant knows his moral code differs from that of society and society would call him wrong or immoral, then the defendant should be held culpable.
      3. A ∆ may establish that he lacked substantial capacity to appreciate the wrongfulness of his conduct if he can prove that at the time of his act he substantially misperceived reality and harbored a delusional belief that under the circumstances as the ∆ honestly but mistakenly understood them, would not have morally condemned his actions
      4. Evaluated wrongfulness as the way society would have viewed it (not the ∆) if the circumstances were as the ∆ believed them to be
        1. In this case, ∆ viewed V like one would view Hitler (it would be legally prohibited to kill Hitler, but society would think it was morally justified)
        2. If society really believed that V was trying to ruin ∆’s life and trying to control his mind, would society believe it was a moral violation to kill V?
      5. Holding: evidence presented at trial warranted an instruction on the term “wrongfulness” consistent with this definition; reversed and remanded
      6. Consider deific decree, or if D suffers from belief that he IS God. Tricky. God commanded defendant to do something. Kill your child as a test of faith. Since God is a purveyor of morality, what God commands cannot be wrong; a few M’Naghten jurisdictions that apply the “moral right-and-wrong” standard also apply the “deific decree” doctrine: under this principle, a mentally disordered individual who believes that she is acting on the direct command of God is deemed legally insane
    5. Diminished Capacity
      1. General
        1. Those mental defects that affect mens rea but don’t rise to the level of insanity but should affect our understanding of culpability (“mini-insanity”)
          1. For example, we shouldn’t punish an adult as an adult if he has the mental capacity of a child
        2. ∆ does know what he is doing and may know it is wrong but may not understand the consequences
        3. Not a true defense, but a failure-of-proof defense that can result in complete acquittal
          1. Same as competency to stand trial, but it is brought up by defense rather than by the court
        4. Used in two categories of circumstances in which an actor’s abnormal mental condition, short of insanity, will occasionally exonerate him or, far more often, result in his conviction of a less serious crime or degree of crime than the original charge
          1. Mens Rea form of diminished capacity functions as a failure of proof defense; evidence of mental abnormality is NOT offered by ∆ to partially or fully excuse his conduct, but rather as evidence (ie expert testimony) to negate an element of the crime charged, almost always the mens rea element (best understood as a rule of evidence where evidence of mental illness may be presented to negate mens rea)
          2. Partial responsibility: partially excuses or mitigates a defendant’s guilt even if he has the requisite mens rea
            1. Used in only a few states and only for the crime of murder, to mitigate it to manslaughter
            2. MPC EMED is a similar to a diminished capacity partial responsibility defense (uses proof of a mental disturbance not rising to the level of insanity to mitigate a murder charge to manslaughter)
          3. Three Approaches
            1. Some states limit DC to specific intent crimes only, others limit it only to murder for a reduction to manslaughter
            2. Some states [MPC 4.02(1)] admit evidence of DC to negate the mens rea of any crime (note that they may still be found guilty of lessor offenses)
            3. Some states completely bar DC defense
              1. Mental illness or defect will only reduce the culpability of the accused in the context of the insanity defense
                1. e. varying degrees of mental defect do NOT excuse; if you are mentally ill and cannot use insanity, you cannot use your mental defect as a defense


  1. Infancy
    1. General
      1. At common law
        1. A child under 7 presumed incapable
        2. 7-14 there was a rebuttable presumption of incapacity
        3. 14-17 there was a rebuttable presumption of capacity
      2. Minors do not have the capacity to violate the free will social contract the way adults do
      3. Juvenile justice system takes the opinion that the kid was bad because bad home
        1. Takes them out of the bad home
        2. Kids are redeemable (still young, they can change and become positive members of society)
      4. Does not result in a finding of criminality, but delinquency (focuses more on rehab than punishment)
      5. Policy – discussion of shift through history – partly because we have such a huge requirement of mens rea now that we didn’t used to have; but also, there’s an insistence, with the increasing numbers of horrendous crimes committed by kids, that kids nowadays are developmentally more advanced and should therefore be held more responsible for their actions
    2. Purposes of the Juvenile System (balancing act)
      1. Rehabilitation (make the kid better)
      2. Protection of the public (though the criminal is young, the damage done can still be significant i.e. murder)
    3. Case illustration: In Re Devon T. [pg. 672]


  1. Competency to Stand Trial
    1. General
      1. The criminal trial of an incompetent defendant violates the Due Process Clause of the Constitution
      2. Extrinsic defense – court can say ∆ is not competent, then defense has burden to prove that he is competent
        1. Same as diminished capacity, except that the court brings it up rather than the defense
      3. Two requirements (if ∆ is unable to do either of these, he should be found not competent to stand trial):
        1. ∆ must be able to communicate with and assist his lawyer with a reasonable degree of rational understanding
        2. ∆ must be able to understand what is going on with proceedings and consequences
      4. This is different than the insanity defense (takes place first, has nothing to do with insanity)
      5. Looks to the mental state of the ∆ at the time of the trial, not at the time of the offense
        1. Stroke in the middle of a trial – defense attorney should raise “competency to stand trial” – inability to speak, amnesia, mental retardation, etc.
      6. But if you function as a 12 year old, that’s not enough to be incompetent; only if you prove that that means there is diminished capacity to understand the process, etc… there are various levels of diminished capability that are still found competent
      7. In practical terms (and because this is a public policy non-exculpatory defense), the defense and prosecution may cooperate in obtaining evidence and medical consultation in this regard
    2. If ∆ is found not competent:
      1. ∆ is placed in a facility until he is competent to stand trial (or until statue of limitations runs)
      2. Could potentially force treatment upon ∆
      3. Limitation on length of time a ∆ can be held in facility (see Jackson)
    3. How long can an incompetent ∆ be held?
      1. Jackson v. Indiana [pg. 612]
        1. Youth was stealing; mental level of a preschooler
          1. ∆ could not speak, and could only sign limitedly; little chance of him ever gaining competency
        2. Sending him to a treatment facility would essentially be a life sentence (is that constitutional?)
        3. Court decides ∆ cannot be held more than the reasonable time to determine whether there is a substantial probability that he will attain the capacity in the foreseeable future (or confinement for as long as his sentence could have been were he actually convicted)
          1. However, he could be civilly committed by the state or family by separate proceedings, for the protection of himself or the general public


  1. General
    1. Types
      1. Attempts (most formed)
        1. Issue: when does ∆ cross the line from preparation to perpetration?
        2. We must try to balance the mens rea with the actus reus (maybe partial)
        3. Attempts are felonies if the target offense is a felony but graded as much less serious than the target offense
      2. Conspiracy
      3. Solicitation (least formed)
    2. Harm
      1. The harm we are trying to prevent is (debatably) further down the road
        1. Or is the harm a social harm of apprehension/fear? Loss of security?
      2. Policy issues
        1. Should we punish to prevent harm before it occurs (very close to punishing for thoughts)?
        2. Is there any social harm in an attempt? Or is the danger of social harm so great that we should punish?
          1. Once a person has demonstrated that they have this idea to commit a crime AND they’re willing to take the next step, they pose a danger of social harm
        3. Or should we allow those harms to occur before punishing because one cannot be culpable without actually doing the harm?
      3. Attempt
        1. General
          1. An attempt occurs when a person, with the intent to commit an offense, performs any act that constitutes a substantial step toward the commission of that offense
          2. Types
            1. Incomplete
              1. Acts have been made in furtherance of the harm (beyond preparation) but the final act of attempt has not yet occurred
                • Example: ∆ intends to murder, but is stopped before reaching the point of pulling the trigger
              2. When does preparation become attempt?
            2. Complete
              1. All the acts have been made with desire for harm to happen, but, by some mechanism out of control of the ∆, the harm does not occur
                • Example: ∆ shoots at intended victim and misses
              2. Attempt merges with the target crime if it reaches that point (∆ cannot be charged with both murder and attempted murder)
            3. Mens Rea
              1. Specific intent crime, two intent requirements:
                1. Intent to complete the actus reus of attempt (i.e. intentionally attempting murder)
                2. Specific intent to commit the target offense (i.e. intent to murder)
              2. Result Crimes: a person is not guilty of an attempt unless her actions in furtherance of the prohibited result are committed with the specific purpose of causing the unlawful result
                1. If ∆ intends to severely injure V, ∆’s state of mind constitutes malice, so she may be convicted of murder if she unintentionally kills V; if V does not die from the attack, however, ∆ is not guilty of attempted murder, as she lacked the specific intent to kill
              3. Conduct Crimes: very little case law, but no logical reason why a person should not be convicted of an attempt to commit such a conduct crime (ie reckless endangerment even if the conduct does not result in harm to others)
              4. Clear distinction btwn the mental state for the target offense and attempting the target offense
              5. Rationale for intent requirement: one who intends to commit an offense, takes substantial steps in that direction, but fails in its commission or is required temporarily to desist, remains a threat, i.e., “the actor’s unspent intent is itself a source of harm independent of his conduct”; actor might try again
              6. Attendant circumstances:
                1. Virtually all agree that the ordinary specific-intent requirement of attempt law should not apply to attendant circumstances
                2. Some favor that a person should be convicted of a criminal attempt if he is reckless with regard to any attendant circumstances (not guilty of attempted statutory rape unless ∆ knew there was a substantial risk that the girl was underage)
                3. Other commentators would not impose a special mens rea requirement regarding attendant circumstances in attempt prosecutions; they reason that as long as the actor has the specific intent to engage in the conduct, or to cause the result that is prohibited, the law should not artificially require culpability greater than is necessary to commit the target offense
              7. People v. Gentry [pg. 738]
                1. Guy doused his girlfriend with gasoline, she went near stove and caught on fire and he helped put it out
                2. If she had died, he could be charged with murder (extreme recklessness)… but, she didn’t die, so no attempt
                  1. Attempt is a specific-intent offense, even if the target offense is a general-intent crime
                  2. 2nd degree extreme recklessness murder is not actually intentional – no specific intent to kill
                3. Actus Reus
                  1. When does an attempt become an attempt (as opposed to preparation)?
                    1. In light of conflicting policy considerations, there is little or no way to predict where a court will draw the critical line between preparation and perpetration in a particular case; however, there are some factors:
                      1. Whether the act in question appears to be dangerously close to causing tangible harm, so that police intervention cannot realistically be delayed;
                      2. The seriousness of the threatened harm, i.e., the more serious the crime attempted, the farther back in the series of acts leading up to the consummated crime should the criminal law reach in holding the defendant guilty for an attempt
  • The strength of the evidence of the actor’s mens rea, i.e., the more clearly the intent to commit the offense is proven, the less proximate the acts need to be to consummation of the offense
  1. Tests for act of attempt (none are adopted nation-wide, but MPC is favored right now)
    1. Last act test (Peaslee – attempted arson, pg. 750)
      1. A criminal attempt only occurs when the person has performed all of the acts that he believed were necessary to commit the target offense.
        • The criminal has done everything he needed to do to commit the crime (shot the gun) but for some fortuitous happening, the crime doesn’t happen (he misses).
      2. Great for certainty, bad for crime prevention (if it wasn’t for some act of luck, harm would have occurred)
    2. Dangerous proximity test (Rizzo – where cops followed ∆s while they searched for intended victim, court decided it was not dangerously proximate since victim had not yet been found)
      1. A person is guilty of an attempt when his conduct is in dangerous proximity to success, or when an act is so near to the result that the danger of success is very great.
      2. No clear point of proximity, but courts consider three factors:
        • The nearness of the danger
        • The greatness of the harm
        • The degree of apprehension felt
      3. Indispensable element test (Mandujano fn5, on pg. 746; Rizzo on 753 may also be classified as this)
        1. There cannot be attempt until there is preparation essential to the crime (ie buying the gun)
        2. Any missing indispensable aspect of the criminal endeavor over which the actor has not yet acquired control (actor who does not yet possess a necessary instrumentality for the crime) = no attempt
          • ie she gets the gun, but not the bullets; under this test, it’s not an attempt (because it’s necessary for her to have the bullets in order to complete the crime)
        3. The probable desistance test (aka point of no return test)
          1. Court will find an attempt when, in the ordinary course of events, without interruption from an external source, the actor reached a point where it was unlikely that he would have voluntarily desisted from his effort to commit the crime
          2. By this test, attempt = point at which ∆ has gone so far that the investment in committing the crime makes it likely he isn’t going to turn back (jury tries to objectively identify the point of no return of an ordinary person in the actor’s shoes)
        4. Equivocality test
          1. If the actions, from an objective perspective, are equivocal, no attempt, but if their actions are beyond equivocal, there is an attempt (do ∆’s acts manifest an attempt?)
          2. Could actions be interpreted another way, or is it clear that ∆ was intending and attempting?
  • Miller [pg. 755] – guy goes out to field with gun to confront guy he intends to kill; had gun, but no indication he was actually attempting and not just intimidating
  1. Substantial step test (Reeves, pg. 758 – poisoning the teacher)
    1. ∆ commits some step that that significantly furthers the intended crime
      • Need not be all the steps up to last act, or dangerous proximity, but just a substantial step that shows criminal purpose on an objective basis,
    2. Acts are strongly corroborative of criminal purpose
  • Broadest test – incorporates some aspects of the equivocality test; broadens the scope of attempt liability (Supp. pg. 415)
  1. MPC test, and used in most states
  1. Policy: easing burden on the police, crime prevention vs. punishing people for their thoughts (we cannot punish too early)
  2. We are seeing a shift from concentrating on the objective act (actus reus) to concentrating on the ∆’s mens rea
    1. If we know that you intend to kill your husband (written it in your journal) then less evidence is required to establish intent
  3. Defenses to Attempt
    1. Impossibility (generally only available for a charge of attempt)
      1. If the act had been completed and it would not have been a crime, then there can be no attempt
        1. No possibility, even if ∆ did everything necessary, of success
        2. If purpose of law is to deter, there is no harm to deter
      2. Three categories of impossibility:
        1. Factual impossibility (generally NOT a defense)
          • When the defendant’s intended end constitutes a crime, but attempt fails because of attendant circumstances beyond his control
            • If circumstances had been as ∆ believed them to be, the crime would have been committed
            • Clear physical manifestation of the defendant’s intent, AND a clear mental state (this is what the ∆ intended to do)
          • Courts usually will not allow this to succeed as a defense (see Thomas)
            • Courts say if you took all the steps to do something, then you shouldn’t be relieved of criminal liability because of factors outside your control
            • The rationale: as far as the actor knows, he has done everything necessary to commit the crime intended and he should not escape punishment because of some fortuitous circumstance making it impossible to achieve his intended aim
          • Examples:
            • Shooting empty bed where intended victim usually sleeps, believing the person is there
            • Picking a pocket that is empty
            • Firing an unloaded gun at a person while believing it is loaded
          • Inherent Factual Impossibility (MAY be a defense)
            • Applies if the method to accomplish the crime was one that a reasonable person would view as completely inappropriate to the objectives sought (ie trying to sink battleship with pop gun)
              • Objectivist: if the conduct is harmless and would appear so to a reasonable person, no societal apprehension will result and therefore punishment is unjustified
              • Subjectivist: defense is harder to support; the actor is no less morally blameworthy because he has chosen an inherently impossible way to consummate the offense
            • Only one state accepts this defense, but possible to be creative with it in other states
  1. Pure legal impossibility (IS a defense)
    • Pure legal impossibility occurs when the conduct, even if completed, is not a crime; that is, the law does not prohibit the goal of the act, even if ∆ believes it is a crime
      • We cannot hold ∆ culpable for immoral act if that immoral act is not a crime (cannot punish for mens rea alone)
      • Law does not prohibit the ∆ goal
        • Example: ∆ believes carrying closed container of alcohol is a crime and intentionally does this, we cannot punish just because he thinks he is committing a crime
      • Similar to mistake of law (but mistake of law is rarely a successful defense)
    • Pure legal impossibility serves as a defense because it stands for the principle of legality… if it did not, we would be punishing on the basis of mens rea, and offend the principles of legality (the conduct is not a crime and we cannot punish for thoughts alone; we do not punish for acts that are immoral but totally legal)
  • Legal (hybrid) (IS a defense at common law, but is very similar to factual impossibility)
    • Hybrid legal impossibility occurs when the actor’s goal is illegal but commission of the offense is impossible due to a factual mistake about the legal status of some attendant circumstances relevant to her conduct
      • Mens rea for criminal act, but actus reus never occurs = no crime
      • Similar to mistake of fact (factual mistake affecting the legal status of the act)
    • This is often referred to by the courts as just legal impossibility, but that is misleading
    • Ultimately, any case of hybrid legal impossibility can be characterized as factual impossibility and courts have been inconsistent
      • The whole point of disallowing factual impossibility is based on the defendant’s mens rea; if things had been as ∆ believed them to be, he would have been committing that crime…why should we let him off? We can transfer this analysis to hybrid legal crimes – based on the circumstances as he believed them to be, he committed the crime
    • Courts recognize hybrid legal impossibility in cases like:
      • Receiving unstolen property thinking it was stolen
      • Trying to pickpocket a statue
      • Shooting a corpse
      • Offering a bribe to a juror who is not really a juror
    • At common law, this is available as a defense, but modern approach is to deny hybrid legal impossibility as a defense
      • If deterrence is the goal, one might argue we should get rid of this defense (in most cases, ∆ has demonstrated willingness to break the law but, due to circumstances outside his control, has been unable to… good chance he could try again)
      • Only pure legal impossibility, resting on the principle of legality, should relieve the ∆ of culpability; but in hybrid, we still have the ∆’s intention to commit the act, there’s no reason to relieve them of culpability
      • MPC has totally gotten rid of this defense, in the interest of prevention and deterrence and because the idea is too complicated; most states have followed this lead
    • United States v. Thomas (hybrid legal impossibility)
      • Facts
        • Army guys at bar dancing w/girl, when she collapses while dancing (they think she is unconscious but she is actually dead)
        • While taking the girl home, they all rape or attempt to rape her
      • Issue: can it be attempt to rape, when the person is not alive at the time?
        • ∆s have the mens rea for the crime, but the harm itself is not committed, since there is no living victim to harm
        • It is legally impossible to rape a dead person (cannot withhold consent), even if the actus reus were completed as intended
      • Military Supreme Court convicts them of attempted rape (look at the differing opinions)
        • If, due to unforeseeable fortuitous circumstances beyond ∆’s control, ∆ does not succeed, we should still punish
        • ∆ still has the propensity to commit the act and should be punished, if not for retributive reasons, then for purposes of deterring future acts by the ∆
  1. Abandonment (applies to both attempt and conspiracy, where it is called withdrawal)
    1. ∆ voluntarily and completely renounces her criminal purpose before completing the attempt
      1. Voluntary means as a result of repentance, not because the crime was too hard or because he decided to try later
      2. If an actor has completed the last act necessary to commit the offense, or has already caused serious harm to the victim, the person may not claim abandonment
    2. Generally not recognized at common law, though some courts do recognize the defense (jurisdictions that recognize the defense do so on subjectivist grounds), but the defense is recognized under the MPC
      1. Policy: good to allow someone to change their mind, but bad because you can’t abandon something before you’ve attempted it
      2. Allowing abandonment moves us toward the last act test, which some would argue (prof) that this is dangerous because it harms police efforts of prevention
    3. Commonwealth vs. McCloskey [pg. 786]
      1. Prisoner intends to escape, cuts wire, takes bags of clothes with him, but does not try the leave the prison wall; abandons idea and voluntarily returns
      2. By any test but the last act test, we would find him guilty of attempt
  • Court recognizes his defense of abandonment
    • What if he had been apprehended immediately after cutting wire? He would probably be convicted of attempted escape, even though he still had a chance to abandon his attempt
  1. MPC §5.01
    1. A criminal attempt under the Code contains two elements:
      1. The purpose to commit the target offense; and
      2. Conduct constituting a “substantial step” toward the commission of the target offense
    2. Mens rea – in general, a person is not guilty of a criminal attempt unless it was his purpose, i.e., his conscious object, to engage in the conduct or to cause the result that would constitute the substantive offense; a person is likewise guilty of an attempt to cause a criminal result if he believes that the result will occur, even if it were not his conscious object to cause it [§5.01(1)(b)]
    3. Actus reus – the MPC shifts the focus of attempt law from what remains to be done, i.e., the defendant’s proximity to consummation of the offense, to what the defendant has already done
      1. 01(1)(c) provides that, to be guilty of an offense, a ∆ must have done or omitted to do something that constitutes a “substantial step in a course of conduct planned to culminate in his commission of the crime”
  • Conspiracy
    1. General
      1. Definition
        1. A mutual agreement or understanding, express or implied, between two or more persons to commit a criminal act or to accomplish a legal act by unlawful means
          1. Conspiracy does not merge with the target offense; unlike with attempt/solicitation, the ∆ can be charged with both conspiracy and the act itself (murder and conspiracy to commit murder)
          2. No further acts in furtherance of the target crime are necessary beyond the conspiracy itself
  • Was a misdemeanor at common law; now, it is a misdemeanor if target crime was a misdemeanor, and felony if target crime was a felony
  1. Rationale/Purpose
    1. To prevent crime even further back in the chain than attempt (useful when attempt is narrowly construed)
    2. To guard against the special dangers of group criminality
      1. 2 heads are more dangerous than 1 (2 people united to commit a crime are more dangerous than 1 or both of them independently planning to commit the same offense)
      2. Collectivism promotes efficiency through division of labor and makes the attainment of more elaborate and serious crimes possible
  • Heightened probability that actors will actually go through with the criminal act and lower probability that deterrents will work
  1. Procedural Aspects – prosecutors love conspiracy
    1. Conspirators may be tried together (hearsay rules more relaxed – any evidence that 1 conspirator gives about the agreement or acts done in furtherance of the agreement, can be used against the co-conspirators)
    2. Any act in any place in furtherance of the conspiracy gives grounds for jurisdiction in that place
    3. Co-conspirators may be held culpable for the completed crimes of their co-conspirators, whether it was part of the original agreement or not, so long as those acts were a reasonably foreseeable result of the conspiracy
  2. Actus Reus
    1. Actus reus portion is the act of making the agreement itself, whether express or implied
      1. At common law, no act in furtherance of the agreement is necessary
    2. Essence of conspiracy is the agreement to commit an unlawful act; but an express agreement need not be proved (physical act of communication of an agreement, ie nod of head or verbal exchange, is not required)
    3. We can look to the surrounding circumstances to see if they demonstrate an intent to agree
    4. Agreement can exist even if not all parties have knowledge of every detail of the arrangement (knowing about the essential nature is enough)
    5. Conspiracy may exist even if the conspirator does not agree to commit or facilitate each and every part of the offense…it is enough that each person agrees, at a minimum, to commit or facilitate some of the acts leading to the substantive crime
    6. A conspiratorial agreement may be established directly or through entirely circumstantial evidence of a mutual, implied understanding
      1. Commonwealth v. Cook [pg. 819]
        1. Two brothers engage V in conversation and when opportunity presents, one brother rapes V
        2. Is the other brother culpable for conspiracy to commit rape?
  • Court finds the act was spontaneous and not a result of conspiracy
    • Conspiracy and accomplice liability are two different things – they ended up getting bro for accomplice liability because he held rape bro’s belt during the rape
  1. A crime committed as the result of a prior agreement is apt to look choreographed; when the choreography is missing, a court is less likely to find an agreement, absent more direct evidence
    1. Commonwealth v. Azim [pg. 817]
      1. Well-choreographed robbery of V in another car
      2. Was the driver of the assailants’ car in on the conspiracy?
  • Court says that while a conspiracy cannot be based on mere suspicion or conjecture, it may be inferentially established by circumstantial evidence or looking at the relationship of the parties (choreography implies a conspiracy in this case)
  1. Object of the Agreement:
    1. It is possible for 2 people to be guilty of the common law offense of conspiracy because they have agreed to perform an act that is not criminal if performed in the absence of agreement by 1 of them (ie it is common law conspiracy for two or more persons to agree to perform a civil wrong or to agree to perform an act that is not a civil wrong but is otherwise considered immoral or dangerous to the public health or safety)
    2. Strong criticism; MPC doesn’t follow, many states don’t follow
  2. Overt Act:
    1. A common law conspiracy is complete upon formation of the unlawful agreement.
    2. No act in furtherance of the conspiracy need be proved.
    3. Many statutes diverge from this… in jurisdictions requiring an overt act, the act need not constitute an attempt to commit the target offense (could be a trivial non-criminal act ie making a phone call); in overt act jurisdictions, the allegation and proof of a single overt act by any party to a conspiracy is sufficient basis to prosecute every member of the conspiracy, even those who joined in the agreement after the act was committed
    4. MPC requires some overt act in cases involving a misdemeanor or 3rd degree felony [5.03(5)]
  3. Plurality requirement – unilateral vs. Bilateral Agreements
    1. Common law plurality requirement: a prosecution of common law conspiracy must fail in the absence of proof that at least two persons possessed the requisite mens rea of a conspiracy.
      1. As a result of this plurality requirement, there can be no common law conspiracy if one of two parties to an agreement lacks the specific intent to commit the substantive offense (feigning won’t work – because you didn’t intend to commit the target offense, there was never a conspiracy)
      2. If there is no group criminality, there is no conspiracy
  • People v. Foster [pg. 824]
    • R is a feigning conspirator with ∆ in order to report activity to police (goes along with it to gather information to report)
    • Can ∆ still be held guilty for conspiracy if his co-conspirator didn’t have the requisite mens rea (if his “co-conspirator” never intended that the target offense occur)?
      • State conspiracy statute says “A person commits conspiracy when…”; State argues that this language implies only one person is necessary for a finding of conspiracy
      • Court rules that the solicitation statute would deal with unilateral activity, and that bilateral activity is necessary for conspiracy
  1. Under MPC, unilateral conspiracy is sufficient (most states have adopted the MPC approach now)
    1. MPC focuses on the culpability of the actor whose liability is in issue rather than that of the group of which he is alleged to be a part (thus, we can get someone for conspiracy with undercover cop)
    2. “A person is guilty of conspiracy with another person” if “he agrees with such other person” to commit an offense”
  2. Mens Rea
    1. Specific intent crime with a two-fold mens rea (and at least two people in agreement must have this mens rea)
      1. Intent to make the agreement or mutual understanding
      2. Intent to commit the target crime or achieve the object of the agreement
    2. Special considerations – things affecting mens rea can affect one’s intent to agree (E.g. on p. 809, n.4)
      1. What if someone agrees, in the heat of passion, to commit a murder and later, one of the conspirators goes and calmly kills the victim…do we have conspiracy to commit murder, or conspiracy to commit manslaughter?
        1. The mental state at the time ∆ murders has nothing to do with the mental state at the time of forming the conspiracy
        2. We can get him for conspiracy for murder and then also for murder (Prof doesn’t think conspiracy to kill could ever be manslaughter, because conspiring to kill constitutes willful & deliberate premeditation)
      2. Alternatively, what if I calmly hand someone in a heat of passion a gun and tell him to go for it? I will be charged with murder and conspiracy, whereas the shooter will be charged with HoP voluntary manslaughter
      3. What about knowledge that crime will occur? Can this be equated with intent that the crime will occur? (case law is divided) – see People v. Lauria
      4. Remember the exception of “mere puffery” – someone expressing a rash intention to murder, without really meaning it
      5. One of the problems that occurs is when you have somebody who is unable to agree. (insane or highly intoxicated)
    3. Mens rea regarding attendant circumstances
      1. Malum prohibitum vs. malum in se might make a difference.
        1. A person may be convicted of assault upon a federal officer as long as he has the intent to commit the assaultive acts, even if he does not know or have reason to know that the intended victim is an officer engaged in official acts.
        2. But a court might wish to be more protective of a defendant if the underlying offense is of the malum prohibitum variety (ie running a traffic light when one didn’t see it)
      2. Corrupt motive doctrine: some jurisdictions apply: in addition to the usual mens rea requirements of conspiracy, the parties to a conspiracy also must have a corrupt or wrongful motive for their actions (not discussed in class)
      3. People v. Swain [pg. 806]
        1. Drive-by shooting, though original plan was allegedly to steal the car of a gang rival; ∆s Swain and Chatman both found guilty of conspiracy to commit 2nd degree murder
        2. Issue: can implied malice murder be the target offense in a conspiracy to murder charge, or is intent to kill necessary?
        3. Conspiracy involves an agreement to commit the target offense or to bring about a certain result; therefore, ∆s would have to have intended to bring about the death of the V here.
          1. This is inconsistent with an implied malice murder where no intention to kill is necessary.
          2. Therefore, a conviction of conspiracy to commit murder requires a finding of an intent to kill (no conspiracy for extreme recklessness 2nd degree murder)
        4. People v. Lauria [pg. 809]
          1. ∆ knowingly provides answering service for prostitutes; does this constitute conspiracy to further prostitution? (Can knowledge of a crime be equated to intent to further the crime?)
          2. Court says we can infer intent from this knowledge if:
            1. The purveyor of legal goods for illegal use has acquired a stake in the venture (this person is getting extra money because the activity taking place under his watch or with his assistance is illegal – ie charging more per hour for hotel room than for the night, because you know you can charge your prostitute customers more)
            2. When no legitimate use for the goods or services exists (loaded dice; illicit narcotics; guns that have been modified or serial numbers have been taken off)
  • When the volume of business with the buyer is grossly disproportionate to any legitimate demand or when sales for illegal use amount to a high proportion of the seller’s total business (ie drug company that provided three hundred times the amount legitimately needed for the population)
  1. OR if it is a serious crime for which the ∆ has furnished the equipment (based entirely on public policy)
    • Once you’ve agreed to commit the crime, and you intend to commit the crime – but only mens rea, no actus reus – why shouldn’t we do this to prevent crime? Prof thinks because it can go too far
    • But if we know a serious crime is about to occur, maybe we should place a duty on everybody to report (most people would say this reason is out of whack because it doesn’t have anything to do with ∆ wanting the crime to occur)
    • We will simply assume, from your knowledge, that you have intent; Serious burden on people (this 4th one has never been tested in the courts)
    • Examples:
      • From her practice question: guy wants to kill the witch, and tells the person he buys the gun from that he’s going to kill his roommate
      • From the case of the middle-schooler who kicked in the head of a school-fellow for saying mean things about his bro’s suicide; the girl who told him he was beating up on the wrong person – conspiracy?
  1. Intent of a supplier who knows of the criminal use to which his supplies are put to participate in the criminal activity connected with the use of his supplies may be established by:
    1. Direct evidence that he intends to participate, or
    2. Through an inference that he intends to participate based on:
      • His special interest in the activity, or
      • The aggravated nature of the crime itself
    3. Don’t forget that there has to be knowledge of the actual crime – not just acrime that could occur, but the crime
  2. MPC
    1. Actus reus
      1. Four types of agreements fall within the definition of conspiracy; person is guilty of conspiracy if he agrees to:
        1. Commit an offense
        2. Attempt to commit an offense
  • Solicit another to commit an offense
  1. Aid another person in the planning or commission of the offense
  1. Object of the agreement: MPC requires that the object of the conspiratorial agreement must be a criminal offense
  2. Overt act: a person may not be convicted of conspiracy to commit a misdemeanor or felony of the third degree unless he or a fellow conspirator performed an overt act in furtherance of the conspiracy
  1. Mens rea
    1. A person is not guilty of conspiracy under the MPC unless the conspiratorial agreement was made with the purpose of promoting or facilitating the commission of the substantive offense.
      1. Object of the agreement has to be to bring about the prohibited result, even if such purpose is not an element of the target offense
      2. A conspiracy does not exist if a provider of goods or services is aware of, but fails to share, another person’s criminal purpose
    2. MPC does not recognize the corrupt motive doctrine
      1. Does not determine what culpability, if any, regarding an attendant circumstance is required to convict for conspiracy… “Best left to judicial resolution.”
    3. Defenses to Conspiracy (besides the regular failure of proof defense like “I didn’t do it” or “I lacked the mens rea”)
      1. Wharton’s Rule (not recognized under MPC)
        1. If the target offense by its very nature inherently requires the participation/agreement of multiple people, then those people agreeing to commit that offense cannot be prosecuted as a conspiracy
          1. Agreement is a necessary precursor to the offense
          2. Examples: dueling, adultery, bigamy, incest, buying/selling narcotics
        2. Exceptions:
          1. Third party exception
            • If more than the required # are involved, Wharton’s Rule does not apply, and you have conspiracy (ie if there is an adulterous threesome, more than the required # of 2 are involved = conspiracy)
              • Wharton’s rule is not applied where a third party is involved to bring about the criminal act
              • Remember the point of conspiracy is to aimed at the increased danger of group criminality; if the offense cannot be committed without the group, there is not an increased threat from group criminality
            • Ianelli v. US [pg. 838]
              • Petitioners tried under 6 count indictment alleging gambling offenses including conspiracy to violate a state gambling statute making it a crime for 5 or more persons to conduct, manage, own a gambling business
              • Petitioners allege that Wharton’s Rule provides a defense because violation of the law requires at least 5 people
              • But, since 6 ppl involved (more than the minimum of 5 required by statute), Wharton’s Rule could not apply
                • Wharton’s Rule applies where immediate harm extends only to the participants and no other participants are envisioned… in this case, more participants than envisioned are harmed; furthermore, legislative intent demonstrate a clear desire to attack organized crime
  1. Legislative exemption rule
    1. A person may not be convicted of conspiracy to violate an offense if his conviction would frustrate a legislative purpose to exempt him from prosecution for the substantive crime
    2. Gebardi v. U.S. [pg. 843]: violation of the Mann Act
      1. Can’t convict someone of conspiracy if the conviction would frustrate legislative purpose to exempt her from prosecution (∆ couldn’t conspire with V because the legislative process is supposed to protect her)
    3. Withdrawal
      1. General
        1. Requires the ∆ fully repudiate the crime
          • The crime of conspiracy is complete the moment the agreement is formed (or overt act is committed); withdrawal after that point not a defense
          • But if a person withdraws from a conspiracy, he may avoid liability for subsequent crimes committed in furtherance of the conspiracy by his former-co-conspirators
        2. Similar to abandonment in the context of attempt – we must balance prevention measures with a decision to allow the defendant to come to his senses
  • Courts are strict in requiring proof of abandonment
    • Usually require abandoning party to communicate his withdrawal to each of his fellow co-conspirators
    • Some courts go further and require him to successfully dissuade the others from pursuing their criminal objective, or to contact the police
  1. MPC
    1. Provides an affirmative defense to the crime of conspiracy if, even after the conspiracy is formed (difference from CL), conspirator renounces his criminal purpose & thwarts the success of the conspiracy under circumstances demonstrating a complete and voluntary renunciation of his criminal intent
      • Insufficient to merely withdraw – must also negate the danger of the group he joined
    2. People v. Sconce [pg. 845]
      1. Sconce offered G 10k to kill E and planned the murder with him; 3 weeks later, S contacted G and called it off
      2. “Once the ∆’s participation is shown, it will be presumed to continue unless he is able to prove, as a matter of defense, that he effectively withdrew from the conspiracy.”
  • “Withdrawal from a conspiracy requires ‘an affirmative and bona fide rejection or repudiation of the conspiracy, communicated to the coconspirators.’”
  1. Once an overt act has been committed to further the conspiracy, the crime of conspiracy has been completed and no act or withdrawal can change that… if one withdraws after an overt act, the person will only escape liability for acts that occur after the withdrawal
  1. Solicitation
    1. General
      1. Solicitation occurs when a person invites, requests, encourages or command another to engage in criminal conduct (invitation to enter into a conspiracy)
      2. Consider the three inchoate offenses (solicitation, conspiracy, and attempt) as a continuum; solicitation is the least formed of the three, and arguably the least dangerous of the three.
        1. Yet we still punish. Why? We don’t want people to get the idea that it’s ok to float the idea of a crime; less dangerous, but still punished
        2. Demonstrates propensity to criminality: ∆ has demonstrated that he is willing to pursue the crime, so even if solicitation fails he will likely find someone else who will agree, and he should therefore be punished
      3. Solicitation is a common law misdemeanor, regardless of the grade of the offense solicited
      4. Impossibility is not a defense
      5. Solicitation merges with acts further down the line, ie attempt or successful completion of target crime (no solicitation of murder and attempted murder)
      6. At common law, no solicitation occurs if the solicitor intends to commit the substantive offense himself, but requests assistance by another
    2. Actus Reus
      1. The actus reus of solicitation takes place when one person invites, requests, commands, hires, or encourages another to commit a particular offense
      2. For a solicitation to occur, neither the solicitor not the solicited party needs to perform any act in furtherance of the target offense (though that can be evidence of solicitation); BUT, the communication must actually be received
        1. If communication is not received, we “attempted solicitation” (double inchoate crime; recognized by some states)
      3. At common law, the solicitor must desire that the OTHER PERSON commit the criminal act, not merely that the other person assist in committing the criminal act
        1. ie inviting someone to be lookout while prof steals dean’s cash is not solicitation because prof is still the principal, still committing the crime herself
        2. In MPC, that’s not the case
      4. State v. Cotton [pg. 793]
        1. ∆ charged w/ sexual misconduct against his stepdaughter; while in jail awaiting trial on these charges, ∆ wrote several letters to his wife discussing strategy to dissuade the step daughter from testifying against him, and asking wife to threaten stepdaughter
        2. ∆ gave letters to cell mate to get stamps but cellmate gave letters to law enforcement and substituted blank paper
        3. Real letters never received by wife …solicitation? Ct says no
          1. In other cases, it would at least be attempted solicitation
          2. Court is concerned about creating a double inchoate offense
  • At common law, it needs to be communicated
    • ie you whisper very quietly to solicit a guy who is deaf or who just doesn’t hear you, no solicitation because it didn’t get communicated
  1. Mens Rea
    1. Specific intent crime (2 parts)
      1. Intent to solicit
      2. Intent to complete the target crime
    2. A person is not guilty of solicitation unless he intentionally commits the actus reus of the inchoate offense – he intentionally invites, requests, commands, hires or encourages another to commit the crime – with the specific intent that the other person consummate the solicited crime
    3. Innocent instrumentality:
      1. If you lie to the solicitee, so that she thinks what she is doing is legal, you would be convicted of the crime itself, not solicitation.
      2. In this case, the solicitor does not want the solicitee to commit the crime because in fact the solicitee could not possess the requisite mens rea
      3. The solicitee/actor in this case is an innocent instrumentality – he lacks the requisite mens rea, and the solicitor gets punished for the crime
    4. MPC
      1. A person is guilty of solicitation to commit a crime if:
        1. His purpose is to promote or facilitate the commission of a substantive offense; and
        2. With such purpose, he commands, encourages or requests another person to engage in conduct that would constitute the crime, an attempt to commit it, or would establish the other person’s complicity in its commission or attempted commission [MPC § 5.02(1)]
      2. Renunciation (defense) – a person is not guilty of solicitation if he:
        1. Completely and voluntarily renounces his criminal intent; and
        2. Either persuades the solicited party not to commit the offense or otherwise prevents him from committing the crime [§ 5.02(3)]


  1. General
    1. There are two ways one can be held accountable for conduct of another:
      1. If he assists the other in committing the offense
      2. In many jurisdictions, if he is a co-conspirator (liability for someone else’s actors; vicarious/accomplice liability)
    2. Accomplice activities
      1. Aiding, abetting, encouraging, soliciting, advising, and procuring the commission of the offense
    3. Accomplice liability is derivative – not the offense of aiding and abetting, rather, the acts of the primary party become the acts of the accomplice
      1. So, if the primary party’s acts do not constitute a crime, the accomplice is not guilty of anything either
      2. Accomplice will not be held guilty of a more serious crime than the principal
    4. Generally, the accomplice can’t be guilty of a more serious offense than the principal at common law
      1. One exception to this is homicide: accomplice can have calm intention to kill or assist in killing while the principal may be acting in the heat of passion.
      2. What if the principal is insane and acquitted on ground of insanity? The accomplice can still be held culpable because a crime was still committed (excuses like insanity go to the individual and not the situation)
      3. What about self defense? Justification, so accomplice gets off (justification applies to action, not individual – was no wrongdoing, ultimately the right thing to do, and because accomplice liability is derivative, and if the principal is not held culpable, accomplice won’t be held culpable either)
    5. Four categories of parties to a crime at common law (mostly been abolished):
      1. Principal in the 1st degree:
        1. One who actually physically commits the crime with the requisite MR, or who commits the crime through an innocent instrumentality (recall solicitation)
        2. ie Jeff, as the lookout, is principal in the second degree; Prof, committer of crime, is principal in first degree
      2. Principal in the 2nd degree:
        1. One who is guilty of an offense by reason of having intentionally assisted in the commission of the crime in the presence, either actual or constructive, of the principle in the first degree
        2. A person is constructively present if he is situated in a position to assist the principal in the first degree during the commission of the crime (serving as a lookout or getaway driver)
      3. Accessory before the fact:
        1. Is not actually or constructively present when the crime occurs; can be the person who solicits
        2. ie gives a bag to Prof to put the stolen money in – assisting, but not present at the commission of the crime
      4. Accessory after the fact:
        1. The one who, with knowledge of the felon’s guilt, assists the felon in avoiding arrest, trial or conviction
        2. Remember, this only comes in when all of the acts constituting the crime have ceased
      5. MPC – an accomplice may only be held liable for the acts he himself purposely commits
    6. Mens Rea for Accomplice Liability
      1. Courts frequently state that a person is an accomplice in the commission of an offense if he intentionally aids the primary party to commit the offense charged
      2. Dual intent involved:
        1. Intent to assist the primary party, and
        2. The mental state required for the commission of the offense (i.e. intent that the crime actually occur, intent that the primary party successfully commit the offense charged)
          1. Unwitting assistance does not count
          2. Feigning accomplice doesn’t possess the mens rea that the crime succeed
            1. ie Dumb says to Sneaky: “Your dad has a lot of good stuff in his shop, let’s steal it.” Sneaky goes to his dad and tells, and his dad says, let him try it. Dumb and Sneaky go to the shop – Dumb gives Sneaky a lift into the shop, who proceeds to steal stuff. Sneaky is the principal. He’s feigning. He doesn’t possess the mens rea that the crime succeed, therefore he isn’t held culpable, and so the accomplice can’t be held culpable either. But if Dumb is the one who opens the window and hands the merchandize out, we can hold Dumb culpable, but not Sneaky.
          3. As with the crime of conspiracy, there is considerable debate regarding whether a person may properly be characterized as an accomplice if he knows that his assistance will aid in a crime, but he lacks the purpose that the crime be committed.
            1. Case law is mixed, but most courts hold that a person is not an accomplice in the commission of an offense unless he shares the criminal intent of the principal; there must be a community of purpose in the unlawful undertaking
          4. State v. Hoselton [pg. 851]
            1. Barge locker robbery – ∆ was charged with being a lookout and claimed he “just didn’t want to go down there.”
            2. But, ∆ didn’t help load stolen goods or receive any benefit from it, and said he did not know of his friends’ criminal purpose when he went there.
            3. Is he guilty of breaking and entering? Ct says no.
              1. Couldn’t establish that there was an agreement amongst the friends that ∆ was supposed to act as lookout
  • Actus Reus – Assistance
    1. An accomplice is a person who, with the requisite mens rea, assists the primary party in committing an offense
    2. Scope of what constitutes assistance is very broad; almost anything can be assistance for accomplice liability
    3. Generally speaking, there are three forms of assistance:
      1. By act or physical conduct (hand a gun, drive to the scene of the crime)
      2. By psychological influence (incite, solicit, or encourage)
        1. ie a friend texts back, “beat the shit out of her” when you complain about someone – solicitation and accomplice
      3. By omission if the accomplice has a duty to act
        1. ie child abuse – mother has a duty to act, and she fails to prevent the father from beating on the child; constitutes accomplice liability
        2. In general, neither failure to inform the police of an impending crime nor failure to attempt to stop the crime that is occurring will establish accomplice liability because omissions require a duty to act (see omission section above)
      4. What constitutes encouragement?
        1. Consider State v. Vaillancourt (not in text)
          1. ∆ accompanies B when B tries to break into someone’s home
          2. ∆ just stood there talking to B while B tries to pry open a window
          3. Is this sufficient for accomplice liability?
        2. Presence with hidden intent to help is not enough if the help is never needed, but presence with an understanding (conspiracy) that accomplice is there to help IS enough to ground accomplice liability on psychological encouragement.
          1. EXAM: “Don’t worry, I’ve got your back” is accomplice liability
          2. We can also ground accomplice liability when accomplice knows his presence will encourage.
            1. But, the conduct must actually assist, even if only a tiny bit
            2. If the assistance rendered is wholly ineffectual (e.g. accomplice opened a window and the principal came in through a door) and there is nothing to show assistance by encouragement, that assistance is not enough
  • But, you don’t need causation; if the crime would have happened anyway even without the help, it doesn’t relieve the accomplice of culpability.
  1. Accompanying to location of crime and watching offense occur: not enough
  2. Encouragement may be found from the expressed assurance of a bystander that he will not interfere with the perpetrator’s plans; likewise, proof of presence, coupled with a prior agreement to assist, will support a claim of encouragement even if such assistance is not rendered.
  3. No requirement of but-for causation; if crime would have happened anyway, even without the help, it does not relieve ∆ of accomplice liability
  1. Foreseeable or Related Crimes
    1. Ask 4 questions:
      1. Did P(rimary Party) commit Crime A?
      2. Did S(econdary Party) assist in crime A?
      3. Did P commit other crimes?
      4. Where these other crimes reasonably foreseeable consequences of crime A?
        1. If yes, then accomplice still culpable (ie bank robbery leading to battery – accomplice culpable, because battery is a reasonable foreseeable consequence of the robbery; on the other hand, consider the case where bank robber rapes someone during the course of the robbery, and court decided this was not reasonably foreseeable or closely related to the robbery so no accomplice liability)

Some Issue Spotting Tips:

○ Groups of people doing anything = conspiracy.

○ One person telling another to do something = solicitation – coercion?

○ Someone is “irrational” – examine insanity.

○ Causation and concurrence = important and frequently missed issues.

○ Mention multiple shots/stabs = can go either way (Heat of Passion or WPD)

○ Cultural defense = bonus points

○ Intoxication = discuss both voluntary and involuntary (mens rea)

○ Remember 3 legged stool

○ Defenses?

○ Statute for child neglect/endangerment . . . Omission, duty


  • Burglary:  Breaking or entering of the dwelling/house of another at night with the intention to commit a felony therein.
  • Robbery:  The illegal taking of property from the person of another, or in the person’s presence, by violence or intimidation, with the intent to permanently deprive them thereof.
  • Kidnapping:  Forceful removal of one person against their will from one location to another.
  • Arson:  The setting of something on fire purposely or intentionally.  Specific intent crime.  Must be intentional burning.  Some statutes limit it to structures or dwellings while others say it can be setting anything on fire without permission
  • Assault:  The threat or use of force on another that causes that person to have a reasonable apprehension of imminent harmful or offensive contact; the act of putting another person in reasonable fear or apprehension of an immediate battery by means of an act amounting to an attempt or threat to commit a battery.  An attempt to commit battery, requiring the specific intent to cause physical injury.
  • Battery:  The use of force against another, resulting in harmful or offensive contact.
  • Larceny:  The unlawful taking and carrying away of someone else’s personal property with the intent to deprive the possessor of it permanently. (Common-law larceny has been broadened by some statutes to include embezzlement and false pretenses, all three of which are often subsumed under the statutory crime of “theft.”)
  • Endangerment:  The act or an instance of putting someone or something in danger; exposure to peril or harm (reckless endangerment is statutory, not common law)
  • Vehicular Homicide:  The killing of a person as a result of the unlawful or negligent operation of a motor vehicle.
  • Reception of Stolen Property:  Reception of property with the knowledge that it was stolen.

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This article contains general legal information but does not constitute professional legal advice for your particular situation. The Law Dictionary is not a law firm, and this page does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.