Formal Trial Procedure

1. Right to Trial by Jury

a. Sixth Amendment
b. No offense can be deemed petty to avoid right to trial by jury where
imprisonment is authorized for more than 6 months
c. Right in all felony and misdemeanor prosecutions
2. Jurors = venire
3. Questions for excuse = voir dire: can remove without showing cause
History
1. American Criminal Law comes from English Law
2. US now uses more and more statutory law
a. In CA only crimes are defined by statute
3. MPC proposed model of penal code
a. By American Law Institute 1962
Basis for Punishment
1. Utilitarianism
a. Justification of a practice depends only on its consequences
b. Jeremy Bentham
c. Purpose of laws = maximize happiness of society
d. Pain inflicted by punishment is justifiabile only if it results in a reduction
of pain
e. General Deterrence
i. Convice community to forgo crime
ii. Set precedent
f. Special/Individual Deterrence
i. Deter Ds future misconduct
ii. Likelihood they will be in same situation again extremely low
g. Incapicitation
i. Imprisonment prevents from committing crimes
h. Rehabilitation
i. Reform wrongdoer - make safe to return to street for public
benefit
2. Retributivism
a. Punishment is justified when deserved, even if no utilitarian benefit
b. Immanuel Kant
c. Retaliation
i. Hurt criminals back; righteous anger
d. Protective Retribution
i. Securing moral balance in society/equilibrium
ii. Repay debt to society by throwing off balance
e. Victim vindication
i. Right a wrong
ii. Corrects Ds false claim that his moral worth is greater than
victims

3. Dudley v. Stephens
a. Killing an innocent person to prevent starvation could not be justified and
therefore constituted murder
b. Deterrence:
i. Try to set precedent that forclose others from commiting this crime
in similar situation
Origins of Criminal Law
1. Common Law
2. Criminal Statutes
3. Model Penal Code
Basic Requirements for Criminal Liability
1. Actus Reus: guilty action act, possession or omission
a. Physical or external portion of the crime
b. Components:
i. A voluntary act (or sometimes omission)
1. Bodily movement, muscular contraction: physical but not
necessarily visible which follows volition (governed by
will)
2. Common law support
3. Habit = voluntary action (product of effort/determination of
the actor)
4. Multiple personalities = voluntary
5. Involuntary = only if for one reason or another the persons
body is moving in a way that is not controlled by their mind
a. Hyponsis = not voluntary
b. Somnambulism = not voluntary
6. MPC: only need some voluntary act
a. Each state requires voluntary act?
i. Except for violations
ii. Involuntary = any conduct that is not a
product of the effort or determination of the
actor, either conscious or habitual
1. Includes hypnosis
7. Epilepsy = not voluntary, but when have knowledge,
disregard of conseuqences is culpable negligence
a. People v. Decina (N.E.2d 1956)
i. D was culpably negligent where he drove
his car knowing he was subject to epilectic
seizures
8. Martin v. State (Alabama Ct. App. 1944)
a. The D could not be properly charged with public
drunkenness where he was forcibly carried from his
home by an arresting officer

b. Body was not moved voluntarily (not under his

control)
9. U.S. v. Coleman
a. Not every aspect of criminal code has to be
voluntary
b. Man taken into custody on fed sidewalk by fed
officer who took him into the post office where he
kicked officer = voluntary
10. People v. Newton (CA District Ct. App 1970)
a. The court erred because they failed to instruct the
jury that if they found the D was unconscious
during the killing, he could not be convicted
b. Where not self-induced, unconsciousness is a
complete defense to homicide charge
ii. That causes
iii. Social harm
2. Omissions
a. In general, no duty to prevent harm to another even if can do so without
risk
b. Common Law duty to act
i. When a common law duty to act exists, and assuming she was
physically capable of performing the act, Ds omission of duty to
act = voluntary act
ii. E.g. person who has legal duty to provide care, report fire, or
parents
iii. Status Relationship
1. Parents, married couples, masters/servants
iv. Contractual Obligation
1. Babysitter to charge
2. Agreement to feed infirmed stranger
v. Omissions Following an Act
vi. Creation of a Risk
1. Accidentally starting fire and then failing to put it out
2. Negligently injuring someone, then have duty to help
vii. Voluntary Assistance
1. One who voluntarily commences assistance to another in
jeopardy has a duty to continue to provide aid if a
subsequent omission would put the victim in a worse
position than if the actor had not initiated help
2. Excludes from another rendering care
c. Statutory Duty
i. Duties imposed by statutes
1. E.g. paying taxes
2. Bad Samaritan Laws
a. Crime not to come to aid to stranger in peril
3. Driving having to stop after wrecks

d. Model Penal Code

i. Not significantly different from common law
ii. Liability for omission if:
1. The law defining the offense provides for it, OR
2. The duty to act is otherwise imposed by law
a. Torts
b. Contracts
e. Jones v. United States (U.S. Ct. App. D.C. Circuit 1962)
i. The court erred by not instructing the jury that they had to find a
legal duty of care where D failed to provide food or call a doctor
resulting in an infants death
ii. Rule:
1. An omission of a legal duty owed by one individual to
another,
2. Where such omission results in the death of the one to
whom such duty is owed
iii. If Jones was paid to care or voluntarily assumed care, then can be
properly convicted
iv. In loco parentis
f. Pope v. State (Maryland Ct. App. 1979)
i. Pope could not properly be convicted of child abuse where she
failed to protect a child from her mothers abuse because she was
not legally responsible for the child
ii. Even though she took them into her house, she had no legal
authority to divest the child from her mother
iii. She did not fall into one of the categories of people that child
abuse statute applies to
3. Mens Rea
a. Broad meaning: Culpability (Old school)
i. Earlier meaning: Guilty mind blameworthy state of mind
ii. No intent, knowledge required sufficient that committed social
harm in manner demonstrating bad character, malevolence,
immorality
b. Narrow meaning: Elemental
i. Formal and technical requirement, evolved over time
ii. Each crime requiring particular mental state or set of mental states
c. Terms
i. Intent = purpose or knowledge
1. It is his desire (conscious object)
2. Acts w/ knowledge that social harm is virtually certain to
occur
a. Knowledge =
i. Aware of fact
ii. Correctly believes that the fact exists
iii. Suspects the fact exists and purposely avoids
learning if suspicion is correct

ii. Transferred intent

1. Liable if intent to kill one person and kill another
2. Transfers intent from one person to another but not
fromone social harm to another
a. E.g. trying to kill a dog and kill a person
iii. Malice = intentionally or recklessly cuasing social harm prohibited
by the offense
iv. Wilful
1. Sometimes intentional
2. Sometimes with bad purpose, evil motive
v. Reckless
1. Unjustiable risk = gravity of harm x probability of
occurrence outweighs foreseeable benefit
2. Consciously disregards a substantial and unjustifiable risk
that conduct will cuase social harm
vi. Negligent
1. Should be aware that conduct creates substantial and
unjustifiable risk of social harm
vii. Specific Intent:
1. Crime requires actus reus be done with intent or purpose to
bring about some further result or be done with actual
knowledge of some specific circumstance
a. Intent to commit some act over and beyond the
actus resus of the offense
b. Special motive for committing the actus reus of the
offense
c. Awareness of a particular attendant circumstance
2. E.g. receving stolen property, burglary, larceny
viii. General Intent
1. Crime that requires only intent to engage in actus reus of
crime
a. Any culpable state of mind
b. E.g. assault and battery
2. Awareness of attendant circumstances need not be proved
d. Regina v. Cunningham (Court of Criminal Appeal 1957)
i. The jury was improperly instructed on the meaning of malice and
therefore the conviction for stealing a gas meter, resulting in gas
endangering Wade could not stand
ii. First convicted because of guilty mind (stealing)
iii. Should have been instructed that they needed to find 1) intention to
do the particular kind of harm done or 2) foresight of the particular
consequence
iv. Did not foresee the risk (merely negligent)
e. Regina v. Faulkner (Cox Crim. Cas. 1877)
i. Precedent for Cunningham

ii. Prosecution tried to convict on old, broad sense of mens rea

acting with a generally blameworthy state of mind
1. Was attempting to steal rum, resulting in burning down
vessel
iii. App. Judge says no use newer sense of mens rea (broad to
narrow)
1. Offense must be intentional and willful (can convict if D
knew injury was the probable result of actions)
2. NG because was merely negligent, not reckless
f. Model Penal Code
i. Exclusively elemental approach
ii. Discards of Common law distinction between general and specific
intent
iii. Requires that person acts with purpose, knowledge, recklessness or
negligence with respect to each material element of offense
iv. Remember that if a lesser mental state is sufficient, then so are the
higher ones!!!
v. Purpose
1. Conscious object to engage in conduct of nature or to
cause such a result
2. Hoping
3. Attendant circumstances
a. Aware of the existence of such circumstances or
believes or hopes they exist
i. E.g. enters building hoping it was occupied
vi. Knowledge
1. Results
a. Aware that it is practically certain that conduct
will cause result
2. Attendant circumstances
a. Aware that conduct is of the nature the element
involves or that attendant circumstances exist
b. Aware of circumstance, or
c. Aware of high probability of its existence, unless
actually believes that it does not exist (Code version
of willful blindness)
vii. Recklessly (aware of risk but does anyhow)
1. One definition applies to all elements of the material
elements of the crime
2. Consciously disregards and substantial and unjustifiable
risk that the material element exists or will result from his
conduct
a. Gross deviation from standard of conduct that a
law-abiding person would observe in the actors
situation
viii. Negligently (not aware of risk)

1. Should be aware of substantial and unjustifiable risk that

the material element exists or will result from conduct
a. Gross deviation from standard of conduct that a
reasonale person would observe in the actors
situation
i. Takes into account physical characteristics
(such as blindness or recent heart attack) but
not heredity factors (such as intelligence or
temperament)
2. Defined in terms of gross negligence (not ordinary
negligence)
ix. Principles of Statutory Interpretation
1. Section 2.02(4)
a. If a statute defining an offense prescribes the kind
of culpability that is sufficient for the commission
of the offense, without distinguishing among the
material elements thereof, a court will interpret such
culpability provision as applying to every material
element of the offense, unless a contrary purpose
plainly appears
i. Material element = those characteristics
(conduct, circumstances, result) of the
actors behavior that, when combined with
the appropriate culpability, will constitute
the offense
2. Sections 2.02(3)
a. If no words about mens rea, knowledge, purpose or
recklessness will do
x. Distinguishing Recklessness from Knowledge
1. United States v. Jewell (U.S. Ct. App. 9th Circuit 1976)
a. To act knowingly includes not only acting with
positive knowledge but also awareness of high
probability of existence of fact in question
b. The jury properly found D guilty of possession of
marijuana where D was found to have avoided
positive knowledge of the presence of contraband
c. MPC:
i. Knowledge of particular fact is established if
a person is aware of a high probability of its
existence, unless the person actually
believes that it does not exist
d. Usually courts also require some other deliberate
action to avoid confirming suspicion
2. Knowledge
a. Aware of fact, OR
b. Correctly believes fact exists

c. Willful blindness
i. Aware of high probability of existence of
fact in question, AND
ii. Takes deliberate action to avoid confirming
the fact, OR
iii. Purposely fails to investigate in order to
avoid confirmation of the fact

The Homicide Offenses

Homicide = unlawful killing of another human being (murder/manslaughter)
Traditional Law
Homicide
o Murder = homicide with malice aforethought
Malice = mental state and absence of relevant defense
Intent to kill = purpose AND foresight of killing
o 1st degree murder: willful, deliberate, and
premeditated
o 2nd degree murder: not premeditated
Intent to inflict great bodily harm
o 2nd degree
o Many definitions, but generally injury is grave and
not trivial and gives rise to apprehension of danger
to life, health, limb
Depraved heart = aggravated recklenessness, callous
indifference to human life (implied malice)
o 2nd degree
o Rarely: very very very negligent
o High risk of death
o No good reason for considering risk
o Awareness of risk
o E.g. firing gun into crowded room, driving car very
fast in bad weather while intoxicated
o Ommission: parents fail to feed infant for two
weeks
Felony-Murder:
Some states: Intent to commit dangerous felony
Other states: felony-murder doesnt require mental element
First or Second Degree
o Manslaughter = homicide without malice aforethought
Voluntary = murder mitigated by heat of passion arising from
legally adequate provocation
Provocation: killing must be (justification or excuse)
o In heat of passion (subjective)

o Legally adequate provocation (would enrage

reasonable person objective)
o Before passage of enough time for reasonable
person to have cooled off (objective)
o General excuses
Extreme Assault or Battery upon D
Ds illegal arrest
Injury or serious abuse of close relative
Sudden discovery of spouse adultery
Some courts allow for homosexual advances
Can sometimes use defense if kill wrong
person by mistake
But not for killing total bystander
Involuntary = committed with gross negligence or (unaggravated)
recklessness
Reckless homicide is involuntary unless extreme enough to
count as depraved murder
Ex. Gross negligence not fixing breaks even though
mechanic said to
Misdemeanor-manslaughter rule: Unlawful act not
amounting to felony resulting in accidental homicide

The Model Penal Code

Murder = homicide committed (no degrees)
o Purposely
o Knowingly
o Recklessly under circumstances manifesting extreme indifference to the
value of human life
o Inadvertent risk creation (negligence) cannot be punished as murder no
matter how extravagant
Manslaughter = homicide
o Committed recklessly (without extreme indifference to human life)
o That would be murder but for the influence of extreme mental or
emotional disturbance for which there is a reasonable explanation or
excuse
EMED (much broader than heat of passion) relaxes limits on
defense on provocation
D experienced intense feelings, sufficient to cause loss of
self-control, at time of homicide (subjective)
Must be reasonable explanation or excuse for EMED
(objective)
o Includes: personal handicaps but not idiosyncratic
moral values
o Question: whether the actors loss of self control
can be understood in terms that arouse sympathy in
the ordinary citizen

o Diminished capacity: MPC provocation defense in

which acting a bit crazy but not actually crazy
o Factors that provoke gravity of provocation (race)
are considered, but not ones that reduce self-control
(alcohol)
Negligent homicide = homicide committed with gross negligence

1. Intended Killings
a. Natural and Probable Consequences Rule
i. Forseeable consequences demonstrate intent
b. Deadly-Weapon Rule
i. Intent to kill is supposed when intentionally uses deadly weapon or
weapon directed at a vital part of human anatomy
c. Premeditation & Deliberation
i. Seized upon as distinguishing particularly bad, serious kinds of
murder
ii. Almost all states grade as first degree murder
iii. Deliberate = to measure and evaluate the major facets of a choice
or problem
1. Cool purpose, free from excitement, passion
iv. Premediate = to think about beforehand
v. Commonwealth v. Carroll (Supreme Court of Penn. 1963)
1. D was properly held guilty of first degree murder
(premeditated) for shooting his wife after an argument even
though the time frame was extremely short no time is too
short
2. Emotional impulse is not sufficient to negate intent
impossible to find intentional killing that is not
premeditated under this judge
3. Specific intent can be found from:
a. Ds words or conduct
b. Attendant circumstances and all reasonable
inferences therefrom
c. Intentional use of deadly weapon on vital part of the
body
vi. State v. Guthrie (Supreme Ct. App. West Virginia 1995)
1. Ds conviction for first degree murder could not stand
because the jury instructions were confusing in equating the
terms willful, deliberate, and premeditated
2. Premeditation requires some evidence that D considered
and weighed his decision must be some period between
formation of intent to kill and actual killing (some
opportunity for reflection, even if small)
a. Did not purposefully contemplate intent
3. In conflict w/ Pennsylvania view

a. This judge believes there can be a crime that is

intended and unpremeditated
vii. Proof of premeditation
1. CA (Anderson factors of premeditation):
a. Planning activity
i. Takes careful steps to be alone with victim
b. Motive
i. Facts about prior relationship with the
victim
c. Manner
i. Particular and exacting
viii. IDing the worst murders
1. Problem of the Anderson case
a. D could not be properly held guilty of first degree
murder where there was no evidence of
premeditation even though he stabbed a ten year old
girl 60 times
ix. MPC
1. 210.6
a. Mitigated sentence does not depend on distinction
between impulse and deliberation
2. Murder if purpose, knowledge, or reckless (no degrees)
3. Abandons malice aforethought
d. Provocation
i. Mitigates to manslaguther
ii. Common Law defense requirements:
1. Heat of Passion
a. Cause to act from passion rather than reason
b. Any violent, intense, high-wrought, or enthusiastic
emotion (fear, jealousy, furious resentment, wild
desperation, etc.)
2. Adequate provocation
a. That would inflame a reasonable person
i. D.P.P. v. Camplin (1978)
1. Struggle of taking into account
sodomized boys age and sex in
regards to killing older man
b. Paradigms of misbehavior
i. Aggravated assault or battery
ii. Mutual combat
iii. Commission of a serious crime against a
close relative of D
iv. Illegal arrest
v. Observation of spousal adultery
c. Not included
i. Trivial battery

ii. Learning about (but not observing) adultery

iii. Observation of sexual unfaithfulness of
fianc or unmarried partner
iv. Words, no matter how offensive
d. Today: what constitutes provocation should be left
to jury
i. What is sufficient to cause an ordinary man
to lose control of his actions or reason
ii. Most non-MPC jurisdictions: words do no
suffice
iii. in the actors situation
1. Gravity of Provocation
2. Level of self-control to be expected
e. Girouard v. State (Court of Appeals of Maryland
1991)
i. Common law approach
ii. Provocation must be enough to infuriate
passion of reasonable man and tend to act
for the moment from passion rather than
reason
iii. Words alone cannot be adequate
provocation (not enough to infuriate a
reasonable man enough to kill)
1. Only if accompanied by conduct
indicating present intention and
ability to cause D bodily harm
3. Before the lapse of cooling time
a. Objective:
i. Defense unavailable if reasonable person
would have cooled off in time elapsed
4. Causal link between provocation, passion, and homicide
iii. Partial defense
1. Justification
a. Proportional retaliation
2. Excuse
a. Today, it is seen as partial excuse, not justification
(not as blameworthy)
b. Recognition of the weaknesses of human nature
iv. Maher v. People (Supreme Court of Michigan 1862)
1. The jury should have been left to decide whether evidence
of adultery was sufficient to reduce killing to manslaughter
a. Should have instructed jury on what legally
adequate provocation is and let them decide
2. Reasonable person test: passion to an extent which might
render ordinary men or fair average disposition liable to act
rashly or without due deliberation or reflection

v. State v. Turner (Ala. Crim. App. 1997)

1. Voluntary manslaguther instructions were not required
where the D killed a sexually unfaithful man with whom
she had lived for many years because they were not legally
married
2. As justification
a. If married, extremely blameworthy behavior
b. If not, legally free to have as many affairs as he
wants
3. As excuse
a. To what extent will someone be understandably
furious and angry because of partners infidelity
vi. Misdirected reaction
1. State v. Mauricio (N.J. 1990)
a. Court erred in refusing to give voluntary
manslaguther instructions where D attempted to
accost a bouncer for forecefully ejecting him from a
bar but mistakenly shot a patron he bleived to be the
bouncer
b. Justification
i. Would be no defense b/c killed someone not
blameworthy
c. Excuse
i. Can understand why D lost control of self
(understandable mistake)
vii. Violence aimed at non-provoking victims
1. Rex v. Scriva (Vict. L.R. 1951)
a. Denied D defense of provocation where he went
after the driver of a car who hit his daughter and
thereby fatally stabbed an innocent bystander
b. Excuse
i. Cant be understood in these terms because
victim was not blameworthy
c. Justification
i. Person who intervened is not at all
blameworthy
2. People v. Spurlin (Cal. App. 1984)
a. Provocation defense unavailable where D killed his
son still enraged over intense argument with wife
viii. MPC: Extreme Mental or Emotional Disturbance
1. Much broader than common law provocation defense
a. Specific provocative act not required
b. Can claim the defense even if he believes
incorrectly the decedent was responsible for the
affront (if kills bystander)
c. Need not fall within fixed category of provocations

2.

3.
4.

5.

6.

i. Words alone can warrant instruction

d. No rigid cooling off rule
Killing a person while suffering from extreme emotional or
mental disturbance for which there is a reasonable
explanation or excuse
a. Reasonableness determined from viewpoint of
person in actors situation under circumstances as
he believes them to be
D has burden of affirmative defense
Subjective component:
a. Extreme mental or emotional disturbance
experienced by D sufficient to cause loss of selfcontrol
Objective component:
a. Reasonable explanation or excuse for the emotional
disturbance
b. Partly subjective:
i. Considered from viewpoint in actors
situation under cirucmstances as he believes
them to be
ii. Takes into account relevant external
characteristics, but not moral values
People v. Casassa (N.Y. Ct. App. 1980)
a. The EED defense was properly applied where the
excuse offered by the D was so peculiar to him that
it could not be considered reasonable to reduce
conviction
b. Looking at the breakup as he believed it to be
(which did not actually happen) was still not enough
to create an extreme emotional disturbance except
in the most aberrant individuals

2. Unintended Killings
a. Criminal Negligence
i. Common Law
1. Involuntary manslaughter
2. Gross deviation from the standard of care that reasonable
people would exercise in the same situation
3. One who should be aware of risk, but is not required
gross negligence, nt ordinary
4. State v. Barnett (S.C. 1951)
a. Negligence of accused must be culpable, gross,
reckless, such a departure that it is incomptable with
proper regard for human life indifference to
consequences
ii. MPC
1. Negligent Homicide

a. Should have been aware of the risk

b. No simple negligence, defines as gross negligence
c. No liability for manslaughter
iii. State v. Williams (Washington Court of Appeals 1971)
1. Ds were properly held guilty of manslaughter for failing to
provide care for their babys toothache, resulting in death
2. Wash. Applies ordinary negligence standard (failure to
exercise ordinary care a reasonable prudent person would
under the same conditions)
3. Ds were able to take baby to doctor during critical period
where the baby showed symptoms and could have lived
b. Reckless Murder
i. Malice aforethought implied extreme indifference to the value of
human life
ii. Almost always second degree murder
iii. Wickedness of disposition, hardness of heart, cruelty, recklessness
of consequences, mind regarless of social duty
iv. Wanton and willful disregard of the likelihood that the Ds
behavior will cause death or great bodily harm
v. Actor displays unwillingness to prefer the life of antoher person to
his own objectives
vi. Consciously disregarding a substantial and unjustifiable risk
vii. Commonwealth v. Welansky (Mass. Supreme Ct. 1944)
1. D was properly held guilty of manslaughter for a fire
negligently started in his club where he overcrowded his
nightclub, installed flammable decorations, and failed to
maintain proper exits (OMISSION)
2. Mass. Courts call it recklessness
3. Gross violation of safety standards
4. Rule:
a. Where there is duty to act
b. Conduct involves high degree of likelihood
substantial harm will result
c. Indifference to probable consequences
viii. MPC
1. Murder:
a. Recklessness that manifests extreme indifference
to human life
i. Murder should be grounded in subjective
culpability of actor, not inadvertent risk
creation
2. Manslaughter:
a. Conscious risk-taking not enough to merit treatment
as murder
3. People v. Hall (Supreme Court of Colorado 2000)
a. Substantial

ix.
x.

xi.

xii.

i. Jury instruction that death must have more

likely than not was erroneous (need not be
more than 50% likely to be substantial risk)
ii. Excessive speed, lack of control, improper
technique
b. Unjustified
i. Only for own enjoyment
c. Gross deviation from reasonable standard
i. Statute required duty to avoid collision
ii. Stated could not stop in time
d. Conscious disregard
i. Experience can be used to draw inferences
that D must have been aware that he was
creating risk of death
1. Ski instructor
e. Rule: must have consciously disregarded a
substantial and unjustifiable risk that death could
result from actions
Not necessary to show person in question was conscious that it was
not justified, just that he was aware he was creating substnaitla risk
Distingusihing Murder from Manslaughter
1. Commonwealth v. Malone (Supreme Court of Pennsylvania
1946)
a. D was properly held guilty of second-degree murder
where he displayed an abandoned and malignant
heart in playing Russian roulette
b. Malice can include gross recklessness
i. Creating risk for the sake of creating it
(blatant disregard for human life)
c. Blackstone: depraved heart
d. CA: implied malice
e. NY: depraved indifference
CA murder instructions:
1. Intetionally committed act
2. Natural consequences dangerous to human life
3. At time acted knew act dangerous to human life (aware of
risk)
4. Deliberately acted with conscious disregard to human life
U.S. v. Fleming (U.S. Ct. App. 4th Circuit 1984)
1. D properly held guilty of second-degree murder where his
blood alcohol level was .315%, he drove at 2-3x the speed
limit, on the opposite side of the road and lost control
colliding with another car killing the driver.
2. Clearly created high risk of death, even for drunk driver
(would normally drive carefully)

3. Prevalent rule that voluntary intoxication is not permissible

to negate awareness of risk
c. Felony Murder
i. Basic Doctrine
1. Guilty of murder if death results from conduct during the
commission or attempted commission of a felony
a. Intentionally, recklessly, negligently, accidentally,
unforseeabily (strict liability)
b. Implied malice
c. Survival of broad sense of mens rea (generally bad
state of mind)
2. Retained in some form in nearly every state
3. First degree
a. Death that results from specifically listed felony
(arson, rape, robbery, burglary)
4. Second-Degree
a. Death results in commission of unspecified felony
5. Often extends to accomplices even if not directly involved
6. Causation
a. Must be but for and
b. Proximate natural and probable consequence or
foreseeable consequences ?
7. Regina v. Serne (Central Criminal Court 1887)
a. New Rule: Any act known to be dangerous to life
and likely in itself to cause death, done for purpose
of committing felony which causes death, should be
murder
b. Burning down house for insurance felony
dangerous to life and likely to cause death
8. People v. Stamp (Cal. 1969)
a. Felon held strictly liable for all killings committed
by him or his accompilices in course of felony as
long as it was direct causal result of felony
b. D properly held guilty of first-degree murder
where victim of robbery died from a heart attack
and took poor care of his heart
c. Death need not be forseeable, but take victim as you
find him
ii. Inherently Dangerous Felonies
1. Many states limit to homicides that occur during
commission of felony dangerous to human life
2. Approaches
a. Abstract
i. Ignore specific case, look at elements of
offense in abstract (as defined by statute)

ii. Test: whether crime by its very nature

cannot be committed without creating
substantial risk that someone will be killed
iii. E.g. manufacturing meth
iv. Excludes theft, false imprisonment, fleeing
police
v. Extreme abstract approach would look at all
crimes the statute could encompass
1. But even abstract case can look at
just the crime committed
b. People v. Phillips (Supreme Court of California
1966)
i. Would not apply the specific approach
(abstract approach)
1. Fraud not inherently dangerous
ii. No conviction for medical fraud resulting in
childs death
iii. Fear expansion of felony-murder rule
c. Specific/Subjective
i. Consider fact and circumstances of
particular case
ii. Hines v. State (Supreme Court of Georgia
2003)
1. D was properly convicted of felonymurder where he was a convicted
felon in possession of a firearm who
mistook his friend for a turkey and
killed him
2. His violation of prohibition under the
circumstances was an inherently
dangerous felony
3. People v. Henderson (Cal. 1977)
a. Could not convict for false imprisonment on felonymurder rule
i. In abstract, false imprisonment is not
inherently dangerous
b. If it is possible to convict on depraved heart theory,
use that instead
iii. Merger
1. Felony-murder rule only applies if predicate (underlying)
felony is independent of, or collateral to, the homicide
a. If not independent, then merges with homicide
b. Must have individual felonious purpose
2. Commonly applied to felonies not specifically enumerated
a. Assaultive-type felonies

b. Avoid booting up manslaughter to first degree

murder
c. Without limitation, assault with a deadly weapon
could move up to murder
d. Recognizes deterrent function of felony-murder rule
(committing crimes in safer way no way to
commit assault in safe way)
3. Legislative intent to not have felony murder swallow up
other categories of homicide
4. Eliminates possibility of using provocation as a defense
a. Either felony-murder does not have mental
component, or
b. Intent to commit felony, provocation only defense
for murder
5. Crimes that generally merge
a. Assault w/ deadly weapon
b. Burglary (which is assault w/ a deadly weapon)
iv. Killings Not In Furtherance of Felony
1. Time and Distance requirements
a. Generally begins when actor has reached point at
which could be prosecuted for attempt to commit
felony
b. Continues at least until all elements of crime are
completed
i. Until reaches place of temporary safety
c. Test: when the killing conduct occurred, not when
death ensued
2. Causation Requirement
a. Must be logical nexus between homicidal act and
felony (actual and proximate)
i. Cannot be coincidental
1. E.g. piloting plane with marijuana
through fog, not recklessly to avoid
capture
3. Killing by Non-Felon
a. E.g. store owner shooting back at warning shots,
killing one of the felons and a customer
b. The Agency Approach
i. Felony-murder rule does not extend to a
killing if directly attributable to act of one
other than D or those associated with him
in unlawful enterprise
ii. Does not apply if adversary commits the
homicide
iii. Criminally responsible for own acts, but not
others

iv. CA (more popular theory)

v. Exception:
1. Responsible for anothers acts if they
are functioning as agent for nonshooter
2. E.g. accomplice of primary party
vi. Rationale:
1. Killing was not in furtherance of
felony
2. Cant have deterrent effect if felon
has no control over actions
c. Proximate Causation Theory: NY, NJ
i. Felon is liable for any death proximately
resulting from felony
1. Exception = provocative act if you
provoke the shooting can be guilty
a. E.g. guy chatters away
v. MPC advocates replacing felony murder rule with rebutting
presumption
1. Required indifference and recklessness
Mistake
1. Mistake of Fact
a. Negates the mens rea of an element of the crime
b. Once D shows he was mistaken, prosecution must prove beyond
reasonable doubt that he was NOT
c. Includes ignorance as well as having false belief
d. Traditional Approaches:
i. Elemental approach negates the specific intent in the definition
of the offense
ii. Culpability approach negates actors culpability for generalintent crimes
iii. First ID the nature of the crime strict liability, specific-intent, or
general-intent?
iv. Strict-liability Offenses
1. Mistake of facts does not negate criminal liability under
any circumstances
2. Driving over speed limit, stat rape
3. Dont require mens rea, so cant negate it
4. Factors of SL Crimes
a. Public Welfare Offenses
i. Not from common law (recent)
ii. Regulatory
iii. Light punishment
iv. Little Stigma

v. Statute usualy met by due care?

b. Non-Public Welfare Offenses
i. Highly controversial
1. Severe punishment
2. Highly stigmatized
a. E.g. stat rape
5. Morisette v. United States (1952)
a. D had a defense for knowingly converting govt
property where he thought it was abandoned
b. Omission from a statute of any mention of intent
will not be construed as eliminating mens rea from
that element of the crime
i. If congress wants crime to be strict liability
must say so
c. Policy reasons for strict liability crimes absent here
i. Protecting health, welfare, safety of public
ii. Small penalites
iii. In a position to prevent injury
6. Staples v. United States (1994)
a. Required proof that D knew gun was fully
automatic
b. Silence in statute did not mean that Legislature did
not intend mens rea
7. U.S. v. X-Citement Video Inc.
a. Even though statute seemed to impose strict liability
for knowingly transporting videos with minors,
court interprets to require knowledge
b. Indication of reluctance to find strict liability if
serious penalties
8. Involuntary Act Defense
a. Should be a defense even for strict liability if
evidence that D did not engage in any voluntary
conduct
b. State v. Baker
i. Court held that turning on defective cruise
control constituted an act and therefore he
could be held strictly liable
ii. Foreseen act of getting into the car
9. Arguments for strict liability:
a. Would be too hard to prove every case
10. MPC:
a. NO SL
b. Except for violations (offenses that cannot result in
imprisonment or probation)
v. Specific-Intent Offenses

1. Not guilty if mistake negates a specific-intent element of

the crime (lacks the intent required by definition of the
crime)
a. EVEN an unreasonable mistake (if it negates the
mens rea required for the offense)
b. Ex) larceny if think it belongs to them dont
intend to permanently deprive owner
2. Not necessarily a defense if mistaken about nature
a. Ex) buying heroine thinking its coke
3. Attempt crimes are specific intent
4. Does NOT matter if the mistake was unreasonable,
reckless or negligent
vi. General-Intent Offenses
1. Ordinary Approach: Was the Mistake Reasonable?
a. If reasonable, not guilty (nonculpable state of mind)
b. If unreasonable, guilty (culpable state of mind)
i. Criticism: permits punishment on the basis
of negligence; treats person who knowingly
commits rape the same as one who
negligently believes consent
2. Uncommon Approach: Moral-Wrong Doctrine
a. Can make reasonable mistake regarding attendant
circumstance and still be morally culpable
i. Must ask if the facts were as D thought,
would the act be morally acceptable
b. No exculpation where if the facts had been as the
actor believed them to be, the conduct would still be
immoral
c. Actor assumes the risk that facts are not as believed
them to be
d. If mistake is unreasonable = no defense
e. Regina v. Prince
i. Prince took a girl under the age of 16 out of
her fathers possession, having the
reasonable belief that she was 18 when in
fact she was 14.
ii. Court still held D guilty because taking an
18 year old (a girl) out of the possession of
her father was still morally wrong
iii. Because Prince knew he was acting
immorally, he assumed that risk that the girl
was underage
iv. Uses broad sense of mens rea (bad,
blameworthy, culpable state of mind)
v. Acoustic separation rule for public
(conduct: dont take girls from their fathers)

and rule for courts (statutory: dont

prosecute unless under 16)
1. Ignores Parliamints drawing line at
age of 16
f. Criticism:
i. Allows a person who did not know or have
reason to know conduct violated the law
ii. Not true that all immoral conduct is illegal
iii. Knew determines immorality?
iv. Who says D knew he was acting immorally?
g. B (A Minor) v. Director of Public Prosecutions
(House of Lords 2000)
i. Rejects Prince reasoning
ii. D should be judged on the facts as he
believed them to be (subjective belief)
negatives a mental element of the crime
3. Legal-Wrong Doctrine
a. A mistake of facts relating only to the degree or
gravity of the offense will not shield a deliberate
offender from the full consequences of the wrong
actually committed.
b. Criticism:
i. Allows punishment based on harm caused of
greater offense, ignoring mens rea was that
of a lesser offense
c. People v. Olsen (CA 1984)
i. Mistake of age (thought she was 16) was not
a defense to lewd or lascivious conduct with
a child
ii. Rule: a mistake of fact relating only to the
gravity of an offense will not shield a
deliberate offender from the full
consequences of the wrong actually
committed
4. Rape
a. General intent offense
i. No specific intent to have nonconsensual sex
is needed
ii. Only guilty if possess a morally
blameworthy state of mind regarding the
females lack of consent
b. Traditional Law:
i. Not guilty of rape if entertained genuine and
reasonable (objective) belief that female
voluntarily consented to intercourse with
him

ii. Mass and Penn-SL for rape (reasonable

mistake no good)
iii. Most American courts allow for mistake
when honest and reasonable
1. Like other general intent crimes
iv. UK unreaaonble mistake is a defense as
long as negligent and not reckless
v. Commonwealth v. Sherry
1. Woman taken to a house by four
men, where verbally said no but Ds
thought other actions meant yes did
not constitute a reasonable mistke
no defense
2. Unreasonable belief
c. MPC:
i. Only has to be honest mistake
1. B/c if negligent doesnt meet mens
rea
a. Mens rea: to intentionally
have sex without consent or
knowing there isnt consent
i. Problem someone
with really sexist
abhorrent beleifs
meets mens rea
ii. Morgan
1. Used elemental approach to general
intent crime as if intent modified
each actus reus element
2. Therefore, court found that Ds could
be acquitted of rape when they had
an honest but unreasonable belief
that the female consented (husband
told them if she struggled, it was
okay because she was kinky)
3. Ignores ordinary general/specific
intent dichotomy
4. Highly controversial
5. Historically, rape is treated as
general intent crime
e. Model Penal Code
i. General Rule 2.02(1) straightforward elemental approach,
including mistakes of fact
1. One is not guilty of an offense unless he acted purposely,
knowingly, recklessly, or negligently, as the law may
require, with respect to each material element of the offense

2. SOME mens rea requirement for each element

ii. Mistake of Fact Defense 2.04(1) defense if it negates the
mental state required to establish ANY element of the offense
1. No general/specific intent
2. But if negligent as to mistake of fact, and crime only
requires negligence guilty
iii. Exception: defense not available if actor would be guilty of another
offense, had the circumstances been as he supposed
1. Only permits punishment at level of lesser offense
Application of Legal-wrong doctrine
2. Mistake of Law
a. Direct Mistake of Law
i. I didnt know what I was doing was illegal
1. Not a good defense
2. Pure mistake of law
3. Met with resistance by courts
b. Collateral Mistake of Law (Different-Law Mistake)
i. Mens Rea defense
ii. I knew there was a law against this, but I didnt know that was
what I was doing because I didnt know about the other law
iii. Relates to another law with which they were not charged with
breaking
1. Charged with practicing law w/o license but didnt know
that what they were doing counted as practicing law
(although they knew they couldnt practice law without a
license)
iv. Works with specific intent crimes but not general
1. E.g. not guilty of larceny for taking car from Mechanic b/c
didnt know had a lien (specific intent to drive mechinaic of
property)
2. Guilty of rape if thought wife was his wife at the time
general intent
c. Traditional Approach: ignorance of the law excuses no one
i. No mens rea element of the offense is capable of being negated by
actors mistake of law
ii. Rationale:
1. Law is definite and knowable no such thing as a
reasonable mistake of law
a. Not valid today
2. Prevent losing objective meaning of law
3. Deterring fraud
4. Encourage legal knowledge
iii. Exceptions:
1. Reasonable Reliance (excuse): Entrapment by Estoppel
a. Reliance on an interpretation of the law later
determined to be erroneous

i. Statute, judicial opinion, administrative

ruling, official interpretation of law
ii. NOT for ones own interpretation of the law
1. People v. Marrero
a. Corrections officer
reasonably believing he was
entitled to carry a gun under
statute had no defense
because the statute did not
require a mental element
i. No specific intent
b. Justice to individual
outweighed by large societal
interest
i. Dont want to
encourage ignorance
of the law
iii. Not defense for advice from Private Counsel
iv. Official Interpretation of the Law OK
1. If she reasonably believes an official
statement of the law, later
determined to be erroneous
2. Rationale:
a. Cant deter if they thing they
are authorized by law
b. Unfair
3. Narrow application:
a. Statute later declared to be
invalid
b. Judicial decision of the
highest court, later
determined to be erroneous
c. Official, but erroneous
interpretation of the law
secured by officer, etc.
d. Never advice, even from
Attorney General
2. Fair notice (excuse)
a. Excuse in which it is so grossly unjust to assume
citizen is aware of penal laws existence (due
process)
b. Lambert v. California
i. Direct mistake of law
ii. Required actual knowledge of the duty to
register as a criminal or proof of the

probability of such knowledge as a

constitutional prerequisite for conviction
iii. Reasons:
1. Wholly passive conduct (omission)
2. Duty imposed on basis of status
(presence in LA) not activity
3. Malum prohibitum offense (not
morally wrong)
a. Not an important interest, just
a tool for law enforcement
agencies
4. Nothing to impute notice
5. Heavy penalty
iv. Does not impute mens rea into statute
because Cal Supreme Court does not have
the authority to explain what the state statute
means whereas the Cheek court did
3. Mistake where knowledge that conduct is prohibitd is
ITSELF an element of the crime (e.g. knowlingly violating
statute)
a. Liparota v. US
i. Knowingly applied to the existence and
meaning of the relevant regulation (food
stamps)
4. Different-law Mistake (collateral mistake): Mistake of law
regarding one other than that for which she is prosecuted
(Failure-of-proof)
a. Specific-Intent Offenses
i. Defense if mistake negates mens rea
required for specific intent
ii. E.g. taking car back from auto shop she
believes overpaid, not knowing they were
entitled to keep it as lien under a statute
iii. Cheek v. United States
1. If jury believed that he honestly
thought wages did not constitute
income then he would have a
mistake defense because he would
not have intentionally violated a
known legal duty
2. Only requires subjective belief
3. Different law
iv. David Smith
1. D could have a mistake of law
defense where he took out property
he had put into his rental not

knowing there was a contract that

provided that any improvements
became the landlords property
2. Though it was his property did not
have intent to destroy someone elses
property
3. Different law mistake of fact
b. General-Intent Offenses
i. Not a defense
ii. E.g. thinking he was married to the woman
he was raping when the marriage was
invalid
1. Outcome may be different today at
the time they did not differentiate
between direct and collateral
mistakes of law
c. Strict-Liability Offenses
i. No mistake of law
d. Model Penal Code
i. Basically the same as common law
ii. Neither knowledge, recklessness, or negligence as to whether
conduct constitutes a crime or to the existence, meaning or
application of the law determing the eleemtns of the offense is an
element of the offense
iii. Exceptions:
1. Reasonable-reliable Doctrine
a. Allows direct mistake of law
b. Relies on an official, but erroneous statement of the
law
c. Found in a statute, judicial decision, administrative
order or grant of permission, or an official
interpretation by a public official or body AND
d. The reliance is otherwise reasonable
e. No defense for reliance on private attorney
2. Fair Notice
a. D not guilty if:
i. Statute defining the offense is not known to
her, AND
ii. Was not published or otherwise reasonably
made avialbled to her before she violated it
iii. May include Lambert case where law was
published but would not alert actor that she
needed to investigate whether there was
such a statute
iv. Allows defense for direct mistake
3. If statute says have to know law

4. Negating Mens Rea

a. Every element requires some culpable state of mind
mistake of law defense allowed if it negates a
material element of the offense, or if law expressly
provides for mistake of law defense ( 2.04(1))
b. Relates to different-law mistakes
c. Applies to mistake of FACT AND LAW
d. Must be reasonable mistake of law??
e. Can apply to specific intent crimes
e. Handout
Causation
Ingredient in crimes actus reus
Only held responsible for result that you caused
Mechanism for how much wrongdoer owes society and ought to repay it
Punishment in proportion to harm caused (retributive)
Sometimes: substantial factor test
MPC: only but-for
But-For Test
Serves only to eliminate candidates for responsibility
Direct cause: directly caused the harm, shoot him, dies instantly
Proximate Cause
An act that is a direct cause is also a proximate cause
Natural and probable consequences of Ds actions with no intervening actor
sufficient to break the causal
Apparent safety doctrine: D not responsible for result if dangerous situation is
over
1. Foreseeability and coincidence
a. People v. Acosta (Cal. 1991)
i. Driver fleeing police causing helicopter crash where the helicopter
pilot was negligent was the proximate cause of the pilots death
ii. Says it was foreseeable that the pilot might respond erratically to
driver on the ground (Dolinko thinks its not foreseeable)
b. Proximate cuase: must bear a sufficiently close relation to the harm
c. Coincidental (Independent) Intervening Causes
i. Force that does not occur in response to intitial wrongdoers
conduct
ii. E.g. wound someone who then goes to hospital and is killed by
maniac
iii. Common law: relieves original wrongdoer of criminal
responsibility unless intervention was foreseeable
iv. People v. Warner-Lambert Co. (NY 1980)

1. Factory creating risk of explosion by not getting rid of dust

was not sufficient to prove causation
2. Seems foreseeable since they knew of the risk, but were not
sufficiently the direct cause could have been a spark from
ordinary operations, someone trespassing, or cigarette
(court wants to know what triggered the fire, precise
path/chain of events leading to harm)
v. Independent Consequences
1. If get exactly what you want despite intervening actions,
then still guilty
2. negatives causal connection between Ds conduct and death
?
3. Transferred intent if trying to shoot A and shoot B
accidentally, have the requisite mens rea and someone died
d. Responsive (Dependent) Intervening Causes = an act that occurs in
reaction or response to Ds prior wrongful conduct
i. If intervening cause is an act that occurs in reaction to the Ds prior
wrongful conduct guilty unless highly abornmal or bizarre
ii. Generally responsible for death even when negligent doctor
contributes to death
1. Gross negligence may intervene
iii. People v. Arzon (NY 1978)
1. D was properly indicted for the death of a fireman where he
set fire to the 5th floor of a building, while firefighters were
battling another fire on the 2nd floor
2. Ds conduct need not be the sole and exclusive factor in the
victims death
3. Know that firefighters will respond, had to retreat
indespensibile link in the chain of events that resulted in
death
iv. E.g. woman jumping out of window to avoid rape
v. Stephenson v. State (Indiana 1932)
1. Woman who was kidnapped and abused by KKK member,
took poison and later died from a combination of all factors
2. Her actions were taken while she was under Ds control
intervening act was not fully informed (he caused her to be
in that state) not a free response
3. Almost the farthest prox cause will be extended
4. If actor not already insane, must prove:
a. Actor was irresponsible when acted
b. Ds unlawful acts caused irresponsibility
2. Subsequent Human Action
a. Superseding intervening cause (Supervening Factors)
i. De minimis contribution
1. Small harm followed by great harm NG
ii. If second harm was not foreseeable NG

iii. Dangerous Forces that Come to a Rest

1. When Ds active force has come to rest in a position of
apparent safety
2. E.g. V leaving house after fight to go to fathers and
deciding to sleep in snow freezing to do. D not the
proximate cause
3. Her free will shifted the responsibility of her death
iv. Free, Deliberate, Informed Human Intervention
1. D more apt to be relieved of liability in the case of a free,
deliberate, informed intervening human action than in the
case of a natural force of the actions of a person whose
conduct is not fully free
2. Kevorkian: independent act of decedent exploited the
situation he created for them to bring about their own death
(not guilty of homicide)
a. Intervening act must be free
b. Would be guilty under MPC b/c death is his
purpose
v. Quasi-rule: free action by a person acting independently of the D
(not under control or in league) and informed act or omission
(aware of all relevant circumstances) who intends to make use of
the situation created by D as an opportunity for his own course of
conduct
vi. People v. Campbell
1. Inciting a person to suicide cannot be murder because the D
did not kill another person and had no intention to kill (only
mere hope) - other made his own decision
b. Coincidental Intervening Cause NG
i. A coincidental intervening cause does not occur in response to
initial act
1. E.g. D wounds V V goes to hospital where maniac runs
around killing people
c. Intended Consequences Doctrine G
i. Get what they wanted but not way intended
1. Poison taken in way didnt intent, but intended it was taken
d. Omissions
i. Will rarely serve as superceding cause
1. V doesnt put on seatbelt
2. Dad doesnt prevent someone from beating his child
liable
3. Recklessly Risking the Result
a. E.g. black man running into freeway and getting killed after Ds chased
him with racial epithets Ds guilty
b. People v. Matos D guilty for officers death where he chased him across
rooftops because he was not acting as a free agent (under legal duty)
c. Commonwealth v. Root (PN 1961)

i. Minority position most states would say surviving drag racer did
cause death
1. Vicarious responsibility aided and abetted
2. Reckless and foreseeable
ii. Drag racer could not be held guilty where other racer chose to pass
a truck when coming the other way brought death upon himself
1. Made his own decision
iii. Narrow view of proximate cause (unlike tort law)
d. Commonwealth v. Antencio (Mass. 1963)
i. D could properly be found guilty of manslaughter where he
engaged in Russian Roulette
ii. More expansive than tort law decedent contributed to his own
death, but criminal law wants to avoid people who bring death
iii. Strange result because seems like a free action, but court says it
was caused by what the others were doing
1. Foreseeable
MPC:
Jury question
But-for is required (successive sufficient if it wasnt for both wouldnt)
Treats proximate cause as actors culpability
o Asks would it be fair to hold person responsible for unforeseen result and
treat the person as criminally liable for that result?
Was the actual result too remote or accidental to have a just
bearing on the actors liability or on the gravity of the offense?
o Would not allow conviction for felony murder if death was not probable
consequence of felonious conduct
o 1) Did they cause the result with the culpability required by the main
offense?
Two ways to satisfy result element if the actual result is not the purpose or
foresight of action
o If actual result differs from what is intended only in the respect that
someone else or something else was injured or affected, then causation is
satisfied
o Actual result involves the same kind of injury or harm and is not too
remote or accidental in its occurrence to have a just bearing on the
liability
3(b) whether the result was too remote or accidental to be fairly assigned to the
D
Attempt
6 stage process:
o Conceive of the idea
o Evaluate the idea
o Fully form the intention go forward
o Prepares to commit crime

o Commences commission of offense (substantial step here)

o Complete actions achieving immediate criminal goal
Conduct in between formation of mens rea for crime but before attainment of goal
= inchoate, imperfect, incomplete
Two Kinds:
o Complete (but imperfect)
Actor performs all acts set out to do, but fails to attain criminal
goal
E.g. Firing and missing target
o Incomplete
Actors does some acts necessary to achieve goal, but quits or is
prevented from continuing
Does not complete last step
MPC:
o Attempt to commit a felony of the first degree is a felony of the second
degree
o Otherwise, attempt, solicitation, and conspiracy are offenses of the same
grade and degree as the offense attempted
o Can be convicted of attempting to aid or abet even if no crime was
committed or attempted by another if:
The purpose of the conduct is to aid another in the commission of
the offense, AND
Such assistance would have made her an accomplice in the
commission of the crime under the Codes complicity statute if the
offense had been committed or attempted
Traditional:
o Attempt was misdemeanor at common law, even when target was felony
o Today: attempt = felony if graded as felony but typically treated as lesser
offense than substantive crime
o Can only be convicted of attempt to aid if there is an attempted offense
o When person takes substantial step, has passed stage of preparation and
moved to point of preparation
Punishment
o Traditional half of max to one level below
o MPC same as actual crime unless for death or life imprisonment
o Cant convict of both target offense and attempt if completed (absorbed)
Assault
o Built in attempt crime (attempted battery)
o Some courts allow attempt to attempt to commit battery
E.g. McQuirter
o Danger: can arrest someone simply for desire to commit crime

1. Mens Rea
a. Requirements:
i. Must intentionally commit acts that constitute actus reus of
attempt

b.

c.

d.

e.

ii. Must perform acts with specific intention of committing target

crime
Result Crimes
i. Actions must be in furtherance of prohibited result committed with
specific purpose of causing unlawful result
ii. Usually requires higher degree of culpability than is required to
commit the target offense
iii. Smallwood v. State (Maryland 1996)
1. D could not be held guilty of attempt to murder where he
knew he was HIV-positive and raped victims
2. Could not infer an intent to kill magnitude of risk to
which exposed wasnt great enough
iv. Felony-Murder
1. In all but 2 states, no attempted felony-murder (cant
substitute for specific intent to kill)
2. Florida: attempted felony murder occurs when one
commits, aids or abets an intentional act that is not an
essential element of the felony and that could, but does not,
cause the death of another
v. Attempted voluntary manslaughter
1. If provoked and try to kill person but fail still have intent
vi. No attempted involuntary manslaughter
Conduct Crimes
i. E.g. reckless endangerment
ii. If has the specific intent, no reason why shouldnt be convicted
Attendant Circumstances
i. Most commentators agree ordinary specific-intent requirement
should not apply to attendant circumstances (such as victims age
in stat. rape) - no specific intent needed for attendant
circumstnaces
ii. Some favor reckless with regard to attendant circumstances not
guilty unless knew there was a substantial risk girl was underage
MPC
i. Mens Rea:
1. 1) purpose to commit target offense
2. 2) conduct constituting a substantial step toward the
commission of the target offense
3. Requires same level of culpability as required for the crime
4. If completed crime has result element: requires purpose or
belief it will bring about
5. For circumstances, whats required is the same culpability
thats required for the completed crime
6. If completed crime has conduct element: requires purpose
7. Under this approach, if John has sex with a 20 year old who
he believes is 17, can be convicted for attempted stat rape

8. Substantial step and actors conduct must strongly

corroborate
9. JUST LOOK AT MPC 5.01!!!
2. Actus Reus
a. Traditional Law
i. King v. Barker: cannot wait until the last act where D planned to
slowly poison victim
ii. Tests:
1. Last Act Test
a. attempt only occurred when person performed all
acts that believed were necessary to commit target
offense
b. e.g. not until pulled trigger of gun
c. no jurisidciton requires it reach this stage on all
occasions
d. would be virtually impossible to prevent crime
2. Physical Proximity Test
a. attempt does not arise unless actor has it within
power to complete the crime almost immediately
b. e.g. has victim in view and can rob if police dont
intervene
3. Dangerous Proximity Test
a. Focus on how much is left to do
b. So near to result danger of success is great
c. Must be near victim/in place of crime
d. People v. Rizzo (NY 1927)
i. Would-be robbers could not be convicted of
attempted robbery where they had not yet
found or reached the presence of the person
they intended to rob
ii. Dangerous proximity test: whether the
accomplishment of the crime is so near that
in all reasonable probability the crime would
have been committed, but for timely
interference
e. Traditionally, cannot uncommit attempt but today,
there is generally a defense of abandonment
4. Indispensible Element Test
5. Probable Desistance Test
6. Equivocality test: how clearly Ds acts speak to his intent
a. Allowed for conviction of black man for attempted
rape in Alabama
b. Conduct must be unambigious and manifest
criminal intent on its face
c. No jurisdiction now uses this test
b. MPC:

i. Actus Reus
1. Focus on how much has already been done rather than how
much is left
2. In incomplete attempt cases, must have done substantial
step toward carrying out intent
a. Strongly corroborative of actors purpose
3. E.g. lying in wait
4. Question = has he done something which under the
circumstances as he believes them to be is a substantial step
towards commission of the crime?
5. Watered down version of equivocality
6. United States v. Jackson (1977)
a. Ds convictions were upheld for attempted robbery
where they had masks and guns but never sat
around and did nothing.
b. Required substantial step in course of conduct
designed to accomplish criminal result, and strong
corroborative criminal purpose
c. Had moved out of prep phase
7. US v. Harper
a. Court said they were applying MPC, and creating
bill trap for robbery that would take 45-90 minutes
for technician to fix machine was equivocal.
b. Dolinko says this should come out as a substantial
step under MPC
3. Abandonment
a. Some recognize as a defense only if D voluntarily and completely
renounces criminal purpose
b. Not voluntary if motivated by unexpected resistance, absence of
instrumentality, or some other circumstance that increases likelihood of
arrest
c. Same in MPC complete defense
i. 5.01(4)
ii. abandons effort to commit crime or prevents from committing,
AND
iii. conduct manifests a complete and voluntary renunciation
d. People v. McNeal
i. No defense where D stopped rape and returned V after pleading
with him
ii. Victims unexpected resistance made the renunciation involuntary
4. Impossibility
a. Legal Impossibility (Defense)
i. Pure legal impossibility: Not guilty of attempting to commit a
crime thats not actually a crime
1. E.g. selling bootleg liquor after Prohibition is over

ii. Hybrid legal impossibility: Actors goal is illegal, but commission

of the offense is impossible due to a factual mistake regarding the
legal status of some attendant circumstance that constitutes an
element of the charged offense
1. Factual mistakes relate to the legal status of Ds conduct
2. Abolished in most jurisdictions
iii. People v. Jaffe
1. D could not be charged with attempt to purchase stolen
goods where he believed they were stolen but had been
returned to their lawful owner and a thief agreed to
cooperate with police to sell to D
2. A belief that something constitutes a crime cannot make it a
crime if it is not so in the absence of the belief
3. Statute required knowing cannot know something is
stolen when it is not actually stolen
4. Counter-factual test: if the D had known of the real
situation, would they have gone through with their conduct
anyway?
iv. D attempts to vote, falsely believe he is 20
v. D shoots a stuffed deer, believing its real
vi. D tries to bribe someone he falsely believes is a juror
vii. D smuggles letter from prison, falsely believing the Warden
doesnt know
viii. D shoots a corpse, believing it is alive
b. Factual Impossibility (No defense)
i. Occurs when circumstances unknown to actor beyond control
prevent crime
ii. Intended acts even when completed would not amount to crime
iii. Had the circumstances been as the actor believed them to be (or
hoped them to be) the crimes would have been consummated
iv. The pickpocket cases
v. D tries to extort $ from V, falsely believing she fears his threat
vi. State v. Mitchell
1. D shoots into room where he falsely believes V is asleep
2. Almost certainly guilty of attempted murder
vii. Smith
1. HIV-positive D spits in officers face, mistakenly thinking
this can transmit the virus
viii. Sometimes a defense if it is inherently impossible such as
voodoo doctor thinking he can hex his victim to kill her
c. No one can distinguish legal and factual impossibility
d. On exam:
i. ID issue: situation where person might claim impossibility
ii. Then describe how P or D would characterize it
1. P: If the factual circumstances had been as D believed them
to be, would be guilty

2. D: As a matter of law, conduct can never constitute the

crime because the crime requires .
e. MPC
i. Necessary that the result intended or desired constitutes a crime
ii. Test: what was in the actors own mind should be the standard for
determining liability (dangerousness to society)
iii. Designed to abolish defense of hybrid legal impossibility
1. But still allows for pure legal impossibility as a defense
2. E.g. receiving stolen property under circumstances as she
believed them to be would be a crime
3. Shooting corpse with the purpose of causing or the belief
that it would cause the result
iv. If the particular conduct charged as a criminal attempt is so
unlikely to result in commission of a crime that the conduct and the
person dont constitute a public danger, then court has power to
dismiss or reduce sentence
Accomplice Liability
Accomplice = intentionally assists primary party to engage in conduct that
constitutes the crime
o Assist can be
Aiding
Abetting
Encouraging
Soliciting
Advising
Procuring the commission of the offense
Derives liability from the primary party with whom has associated primary
partys acts because his acts
o May be convicted of any offense committed by the primary party with the
accomplices intentional assistance
Innocent instrumentality
o If guy makes innocent or non-human do his work he is still principal in
the first degree (must be man who does it not tornado)
Principle in the first degree
o Physically commits the acts that constitute the offense, or
o Commits the offense by use of an innocent instrumentality or person
Principle in the second degree
o Intentionally assists in the commission of the crime in the presence (actual
or constructive) of the principal in the first degree
o Constructively present = situated in a position to assist the principal in the
first degree
Accessory before the fact
o Not actually or constructively present when crime is committed
o Commanded, counseled, encouraged
Accessory After the fact

o With knowledge of the others guilt, intentionally assists felon to avoid

arrest, trial, or conviction
o E.g. escaping or destroying evidence
o Today (MPC) not regarded as party to crime itself, usually some lesser
crime
Modern Accomplice Liabiility
o Accomplice
Person with requisite mens rea who assists the primary party in
committing an offense
Does not have to be but-for (but cant be attempt)
All others called accomplices today and the principle in the first
degree is the perpetrator (all equally guilty and subject to the same
punishment)
Not an accomplice unless conduct in facts assists in commission of
the offense
To be an accomplice, need not be a but-for cause of the crime
Or proximate cause?
o Assistance
By physical conduct
By psychological influence
By omission
Assuming there is a duty to act
o Allowing someone to kill your kid
MPC
o Person is guilty of accomplice if he commits an act by his own conduct
or by the conduct of another person for which he is legally accountable
3 forms of accountability:
Accountability through an innocent instrumentality
o Must be that except for Ds conduct, X would not
have engaged in the conduct
o Must have intended to do the act and had mens rea
If law says that conduct is offense
o Aiding and abetting suicide attempt
Accomplice Accountability
o Accomplice
Must have requisite mens rea
Solicit,
Aids, agrees to aid in planning of
comission
Attempts to aid in planning of
commission of crime
Has legal duty to prevent
commission of offense but makes no
effort to do so

1. Mens Rea

a. 1) Intent to assist the primary party or render the conduct that forms the
basis for the offense AND
i. Must have PURPOSE unless in a state where knowledge is enough
for more serious crime
b. 2) intent that the primary party commit the offense mens rea for the
target crime?
i. Second element often inferred from the first in cases such as
murder, but in theft cases that require a specific intent it becomes
more relevant
ii. Must have specific intent for specific intent crimes
iii. SL crimes generally must know all the essential facts that make it
criminal?
iv. Attendant circumstances
1. Same knowledge as substantive offense requires
c. Most courts: must have purpose in unlawful undertaking, not just
knowledge
i. Unless: knowingly furbishes something and:
1. Inflated prices
2. Grossly disproportionate amount of sales from business
that was criminal
3. Provides goods or services for which no lawful purpose
4. I thought this was for conspiracy?
d. Majority allow accomplice liability when actor is reckless or negligent if
that is all that is required for the substantive offense
i. Intended to do that act encouraged, reckless mens rea in relation to
the accident
ii. Some say must want crime to take place or know it will happen so
no accomplice liability for reckless/negligence
e. Hicks v. United States (Supreme Court 1893)
i. Jury instructions were improper where they allowed to find D
guilty without finding of intent to encourage Rowe to kill
ii. Exactly what D had in mind is not clear from his action of taking
off his hat
iii. Not enough that words may have had the effect of encouraging to
kill, must have intended them to do that
f. State v. Gladstone (Supreme Court of Washington 1970)
i. D could not be held guilty of aiding and abetting the sale of
marijuana where he told the purchaser where to find the seller
ii. Required that D had true purpose to aid or encourage the
perpetrator to engage in conduct that constitutes the crime
1. Didnt really care if he succeeded disinterested party
2. Did not associate himself with the venture
g. Knowledge enough for more serious offenses?
h. In furtherance of common design ?
i. Circumstances and Results

i. Mens rea policies regarding the substantive offense should control

the accomplices situation
ii. Unintended result approach
1. If intended to engage in conduct and was reckless as the
result, which would be what the target crime requires, then
can be held guilty
a. E.g. recklessly encouraging another to speed
egregiously
2. Enage in conduct that constitutes OR RESULTS IN
commission of the crime
iii. State v. McVay (Rhode Island 1926)
1. D could properly be held guilty of aiding and abetting
involuntary manslaughter where he directed others to fire
up the boiler that caused death
2. Had full knowledge of principals duties and choise to act
negligently
iv. MPC deliberately ambiguous as to attendant circumstances
v. People v. Russell (Ct. Appeals NY 1998)
1. Ds properly convicted of depraved-indifference murder
where they all agreed to engage in a gun battle near a
public school and one bullet fatally wounded a child
2. Each intentionally aided the D who fired the fatal shot
3. All had necessary mental culpability required for depraved
indifference murder
4. 1) Intent to aid or encourage P to engage in conduct that
constitutes [or results in] the commission of the crime; 2)
The mens rea that the crime requires
j. Natural and Probable Consequences
i. Applicable in several states including CA (not MPC)
ii. Person may be held criminally liable for any other offense that was
a natural and probable consequence of the crime aided and
abetted.
iii. Reasonably foreseeable
iv. Only have to share common mindstate for original crime
v. Roy v. United States
1. Court refused to apply natural and probable consequences
doctrine
2. Second crime must be within the normal range of outcomes
that may be expected to occur if nothing unusual has
intervened
3. Court said that armed robbery would not follow in the
ordinary course of events of an illegal sale of a handgun
(not foreseeable)
vi. Questions:
1. Did P commit target Crime?
2. Was S an accomplice to target Crime?

3. Did P commit any other crimes?

4. Were the other crimes reasonably foreseeable consequences
of the target Crime?
vii. Allows conviction of an accomplice whose culpability for the nontarget offense is less than required to prove the guilt of the primary
party
1. Permits conviction of accomplice that does not satisfy
either mens rea requirement
viii. People v. Luparello (Cal. App. 1987)
1. D was convicted of first degree murder as an accomplice
where he told his friends to get information on where his
girlfriend was and they ended up killing the person with the
info
2. Natural and probable consequence of assault he put in
motion (even though did not have mens rea)
ix. MPC rejects this doctrine
k. Defenses
i. Justification defense for primary party no culpability for
secondary party
ii. Excuse defense secondary party can still be convicted
iii. If primary party lacks mens rea, secondary party may still be
convicted if they have it (charged with whatever mens rea they do
have)
iv. If aiding has no effect, if crime never commited NG under
traditional rule (but guilty under MPC)
v. A member of class of persons for whom the statute was created is
not an accomplice (e.g. stat rape victim who consents is not an
accomplice)
l. Abandonment
i. Must communicate withdrawal to principal and make bona fide
efforts to neutralize effort of prior assistance
ii. Or, if provided encouragement, must just object to it, as long as its
not too late to have any effect
iii. MPC 2.06(6)
m. MPC:
i. Requires purpose to facilitate or promote the commission of the
offense
1. Knowingly doesnt count unless it was his conscious object
ii. For crimes of recklessness or negligence
1. Accomplice in conduct that caused the result
2. Acted with culpability regarding the result that is sufficient
for commission of the offense.
iii. Three-step process:
1. Determine primarys potential responsibility
2. Was S an accomplice in the conduct that caused the result

iv.

v.

vi.
vii.
viii.

3. Did S act with the culpability in regard to the result

sufficient for commission of the offense
Accomplices can be convicted of different offense better or worse
and for an offense that they could not have committed (rape of
wife)
Would allow for liability for felony-murder possessed level of
culpability for result sufficient for commission of the offense (no
culpability)
Doesnt matter if other party is convicted, acquitted, or not
prosecuted
No natural and probable consequences doctrine
Limits:
1. Cannot be convicted if victim of the offense
2. Cannot be convicted if conduct is inevitably incident to the
commission of the offense
a. E.g. cannot be accomplice for sale of drugs b/c you
buy drugs
3. Defense of abandonment
a. Neutralizes assistance
b. Gives timely warning to police of the impending
offense
c. Attempts to prevent the commission of the crimes

2. Actus Reus
a. Wilcox v. Jeffrey (Kings Bench Division 1951)
i. D was properly held guilty as an accomplice to an illegal jazz
concert where he reported on it favority and knew it constituted an
illegal act had the intent that it continue
b. Materiality of the Aid
i. State ex rel. Attny Gen. v. Tally, Judge
1. D was properly held guilty as accomplice to murder where
he intervened to stop the victim from getting a warning
about the killers
2. Had to show that what the judge did contributed to death by
point in physical fact even depriving of single chance of
life would be enough
a. Not necessary that it be a but-for cause, only that it
made the commission easier
3. Rule warnings must be:
a. In preconcert with killers
b. Known to killers
c. Aided killers
d. Contributed to death
c. Relationship between the parties
i. D cannot be convicted as accomplice where guilt of principal has
not been shown
ii. Feigning Primary Party

iii.

iv.

v.

vi.

vii.

1. Secondary party cannot be convicted because never a crime

to have assisted with
2. State v. Hayes (Missouri 1891)
a. Ds conviction reversed where principal did not
have the intent required for larceny when he entered
the general store
i. Ds liability must derive from the principals
ii. Specific intent crime
b. Motives were antagonistic
c. No innocent instrumentality
3. Vaden v. State (Alaska 1989)
a. D was properly held guilty of promoting illegal
hunting practices where he facilitated an undercover
agent to kill four foxes
b. The agents actions still constituted a crime, he was
merely justified in breaking the law
4. Difference between Hayes and Vaden:
a. In Vaden, parties dispute about whether Snells
defense applies to accomplice
b. In Hayes, issue doesnt exist because Hill doesnt
have an affirmative defense not guilty of larceny
or burglary because missing an essential element of
the crime (mens rea) failure of proof
Primary party does not have to be prosecuted for the offense
1. No reason to grant defense to accomplice just because it is
granted to the principal
Acquittal does not necessarily mean that there was no crime
1. Many reasons why may be acquitted
a. Separate juries
b. Lack of evidence
c. Just means govt has not been able to prove beyond
a reasonable doubt
d. BUT cant have this outcome in the same case
If primary party is an innocent instrumentality, D is directly
liable (not through accomplice laibilty)
1. MPC: a person is legally accountable for the conduct of
another person when acting with the kind of culpability
sufficient for the commission of the offense, he causes an
innocent or irresponsible person to engage in such conduct
Legislative-Exemption Rule
1. When a statute defines a crime so that it can only be
committed by a certain class of persons
2. If statute is defined to protect certain class of persons,
cannot be prosecuted as an accomplice
Liability of Accomplice When the Primary Party is Convicted

1. Traditional view: cannot convict accomplice of more

serious offense than primary party, except in homicide
cases (seen as a single offense)
a. Regina v. Richards
i. D could not be convicted of more serious
offense of intent to inflict GBH when the
hired guns only inflicted a lesser offense of
unlawful wounding
ii. Even though she had the requisite mens rea
for the greater crime, a different, less
socially harmful crime occurred
2. Today: each persons level of guilty should be assessed
according to his own mens rea
a. People v. McCoy (Cal. 2001)
i. One D could not piggyback on anothers
imperfect self-defense claim resulting in a
lesser conviction
ii. Homicide treated as a single crime with
multiple grades so that perpetrators
defenses do not necessarily transfer to the
accomplice
viii. Acquittal on the Basis of a Defense
1. Justificaiton Defenses
a. Usually a justification defense means no crime has
occurred, so there should be no accomplice liability
2. Excuse Defenses
a. Should not bar prosecution of the secondary party to
whom excuse does not extend
b. Personal to the actor
d. MPC
i. Become an accomplice by:
1. Soliticing principal to commit the offense
a. Command, encourage, or request
2. Aiding, agreeing to aid, or attempting to aid P in the
planning or commission of the offense,
3. Legal duty to prevent the commission of the offense, but no
effort to do so
ii. Dont have to have helped (attempt to help counts can be charged
with attempt to assist) unlike common law
1. Is that attempt to be an accomplice? A separate offense or
the same?
Conspiracy
1. Introduction
a. Two meanings of conspiracy

i. Inchoate crime prepatory conduct

1. Punishable whether or not agreed-upon offense ever occurs
does NOT merge with completed crime
a. Why?
i. Aimed at special dangers of group
criminality
1. Increased likelihood of success
2. Discourage change of heart
3. Allows to commit more complicated
crimes
4. Other crimes committed along the
way
ii. Counter:
1. Easier to ID groups than lone wolf
2. Crime of primarily meeting of minds
and intent
3. Conspiracy is the darling of the
modern prosecutors nursery
a. Evidence wont be limited to
just one person
i. An overt act of one is
enough to convict the
whole group no
matter how trivial
b. Greater latitude in selecting
venue to try can be tried
where any overt act/
agreement took place
c. Exception to rules about
hearsay
i. An out of court
statemtn of a
conspirator made
while participating in
the conspiracy may be
introduced in
evidence against any
or all of her coconspirators
d. Allows to put all consiprators
on trial at the same time
i. Generally evidence of
wrongdoing by
somebody
ii. Easier to find an over
act

e. Pinkerton Doctrine allows

feds and many states to be
held liable for crimes
committed without satisfying
the usual requirements of
accomplice liability
f. Agreement need not be
proved directly since it is a
clandestine offense
i. Can be proved on
entirely circumstantial
evidence
ii. No express agreement
needed
iii. Dont need
knowledge of every
detail
iv. Only need to show
that each party was
aware of its essential
nature
ii. Accessory liability
1. Can be charged with additional crimes committed by other
members of the conspiracy
b. Traditional
i. Agreement by two or more persons to commit a criminal act or
series of criminal acts or to accomplish a legal act by unlawful
means
ii. Formed the moment the agreement is made that one will later
commit an unlawful act
1. No conduct in furtherance is required (except for overt act
jurisdictions)
iii. Does not merge into attempt or completed offense (like attempt
and accomplice)
1. Also liable for actual crime of which part they were
conspirator
c. Punishment
i. Traditional approach: grading conspiracy as generic offence
(misdemeanor) unrelated to associated crime
ii. Most states treat as lesser offense than the target offense
iii. MPC: conspiracy to commit any crime other than a felony of the
first degree graded at same level as object crime
1. Conspiracy does merge unless conspiracy include
commission of additional offenses not yet committed or
attemptd
2. Actus Reus

a. Act = agreement to commit crime (to engage in some way at least one act
leading to the intended crime)
b. Need not be an express agreement
c. All parties need not have knowledge of every detail of the arrangement
d. Can be established through circumstantial evidence
e. Tacit agreement:
i. Interstate Circuit, Inc. v. United States
1. A tacit agreement among eight movie theatres to set prices
could be inferred where a film distributor asked all of them
not to show their films for less than 25 cents and not to
permit its first-run films to be shown on a double-bill
2. One way to show tacit agreement: parallel behavior on the
part of a number of parties on circumstances where it
would be unlikely there would be parallelism without an
agreement
f. Object of the agreement need not constitute a crime enough if corrupt,
immoral, dishonest
g. Overt Act
i. Conspiracy is complete upon formation of unlawful agreement
ii. No act in furtherance of the conspiracy need be proved
iii. In jurisdictions requiring an overt act, any act that is performed in
furtherance of the conspiracy is sufficient
1. An overt act by any party to a conspiracy is sufficient basis
to prosecute every member of the conspiracy
2. Overt act need not be illegal
h. MPC
i. Guilty of conspiracy if agree with other person(s) that they or one
or more will:
1. Engage in conduct that constitutes the crime
2. Attempt to commit the crime
3. Solicit another to commit an offense
4. Aid another person in planning or commission of the
offense or an attempt or solicitation to commit such crime
ii. Object must be a criminal offense (all but three states agree)
iii. May not be convicted of conspiracy to commit misdemeanor or
felony of third degree unless performed overt act in furtherance of
the conspiracy
iv. Must have overt act unless first and second degree felonies
v. Merge unless conspired to do an act that they did not accomplish
3. Mens Rea
a. Specific-intent offense:
i. Must intend to agree, AND
ii. Intend that the object of the agreement be achieved
b. Requires at least the same level of intent as the target crime
c. Conviction of conspiracy to commit murder cannot be made on implied
malice (must have purpose of bringing about death)

d.

e.

f.

g.

h.

i. Cannot conspire to commit reckless arson, spur-of-the moment

murders, reckless assault, heat-of-passion killings, etc.
1. Agreement demonstrates premeditation
People v. Lauria (CA Ct. App. 1967)
i. D could not be convicted of conspiracy to commit prostitution
where he knew that some of his telephone answering service
customers were prostitutes but they did not constitute a high
volume of his business and he did not inflate prices for them.
ii. Knowledge not enough for conspiracy must have intent
(purpose)
1. Can be inferred from:
a. Inflated fee (special interest/high stake)
b. Selling of goods or services that have no lawful
purpose
c. Unusually high degree of business with people
using the product for illegal purposes
iii. Rule intent:
1. Direct evidence that D intends to participate, OR
2. Through an inference that D intends to participate based on,
a. His special interest in the activity, or
b. The aggravated nature of the crime itself
Attendant circumstances:
i. Those that would make the crime more severe
1. No specific intent required for circumstance elements (only
the same as required for the target offense)
a. Moral wrong doctrine
ii. Those that are essential to criminality (without which there
wouldnt be a crime at all)
1. No generally agreed upon solution
2. Some states require heightened?
iii. MPC deliberately ambiguous?
Corrupt-motive doctrine
i. Requires corrupt or wrongful motive for actions in addition to the
usual mens rea requirements
ii. Can serve as an exception for the usual rule that ignorance of the
law is no excuse in malum prohibitum cases
Plurality/Bilateral approach
i. No conspiracy if one of two parties lacks specific intent to commit
substantive offense
ii. E.g. if one of the parties is an undercover agent or insane
iii. In a joint trial, acquittal of one conspirator usually requires
discharge of remaining D
iv. But if separate trial, if evidence is sufficient to support the verdict,
others not being convicted doesnt matter
Protected Party (Legislative Exemption Rule)
i. Like stat rape

ii. Gebardi v. United States (1932)

1. Bilateral approach to conspiracy
2. Conspiracy conviction could not stand for violation of
Mann Act (transportation for purposes of prostitution)
where the woman consented
3. Mann Act made criminal only the conduct of the person
who transports, not the woman transported cant apply
conspiracy to the act if the person you are applying it to is
immune to prosecution then husbands conviction must
be reversed because he cannot conspire with himself
i. Whartons Rule
i. An agreement by two persons to commit an offense that by
definition requires the voluntary concerted criminal
participation of two persons, cannot be prosecuted as a conspiracy
ii. E.g. adultery, bigamy, incest
iii. Not triggered if more than the minimum number of persons
necessary to commit the crime agree
iv. Does not apply if the two people involved are not the ones
necessary for the substantive offense
v. Reason for rule:
1. Legislature intended whatever penalty for incest, etc.
vi. Not recognized under MPC
1. Dont need because already allows crime to merge
j. MPC
i. Conspiratorial agreement must be made with the purpose of
promoting or facilitating the commission of the substantive
offense
1. Must have object of bringing about prohibitive result even
if purpose is not an element of the target offense
2. Is this any different from the traditional rule?
ii. A provider of goods and services awareness of anothers criminal
purpose is not sufficient for conspiracy
iii. Does not decide culpability for attendant circumstances
iv. Does not recognize corrupt motive doctrine
v. Unilateral approach no plurality required
1. Focuses on actors culpability rather than that of the group
2. Not a defense that the other is acquitted in the same trial
(e.g. feigned agreement)
3. Adopted in all but few states
4. Garcia v. State (Indiana 1979)
a. No defense to conspiracy to commit murder where
Young feigned agreement to kill Ds husband
b. Agrees referred to Ds state of mind and his
understanding of what happeneed
i. Not to there being an actual agreement
c. Rule: no defense that person with whom conspired:

i.
ii.
iii.
iv.
v.
vi.

Has not been prosecuted

Has not been convicted
Has been acquitted
Has been convicted of a different crime
Cannot be prosecuated for any reason
Lacked the capacity to commit the crime

4. The Pinkerton Doctrine

a. A party to a conspiracy is responsible for any criminal act committed by
an associate if:
i. It was committed in furtherance of the conspiracy (falls within
the scope of the conspiracy), AND
ii. It is a foreseeable consequence of the unlawful agreement
b. Majority rule
c. Used for SUBSTANTIVE crimes committed, not conspiracies
d. Pinkerton v. United States (1946)
i. D was held liable for others violation of IRS provisions while he
was in prison where he had previously conspired to do so.
ii. The unlawful agreement contemplated precisely what was done
iii. Each conspirator is an agent of the others vicarious liability for
crimes committed by co-conspirator
e. State v. Bridges (1993)
i. Extends Pinkerton
ii. A conspirator without the requisite mens rea for the substantive
crime may be convicted of the substantive crime even when it is
outside the scope of the conspiracy as long as it is reasonably
foreseeable and a necessary or natural consequence of the
conspiracy
iii. Holding back party-goers resulting in murder was a reasonably
foreseeable consequence
f. United States v. Alvarez (11th Circuit 1985)
i. Applies Pinkerton doctrine to case where offense was the result of
an unintended turn of events (drug sale gone bad)
ii. Even though it was unintended, murder was reasonably
foreseeable
1. Well-known that when people are engaged in buying and
selling cocaine, they will use deadly force to protect their
interests
g. Argument for Pinkerton Doctrine:
i. Criminal groups will pay careful attention to what underlings are
doing, cut down on violent crimes
h. Not recognized by MPC
5. Duration and Scope
a. Duration: continuing offense in effect until objectives have been
achieved or abandoned
i. SOL begins to run when conspiracy terminates
b. Breadth:

i. Agreeing to conceal facts to prevent detection not part of

conspiracy unless express agreement to continue in concert
(Krulewitch)
c. Common
i. Cannot undo a crime crime complete moment agreement is
formed, but if person withdraws by meeting strict requirements
1. Communicate to ALL withdrawal to avoid conviction for
subsequent offenses committed in furtherance of
conspiracy
2. Some require to dissuade
3. Abandonment = none of the conspirators is engaging in any
act to further conspiratorial objectives
4. Withdrawal = requires more than implied disassociation
d. Renunciation
i. Common law not a complete defense
ii. MPC complete defense under some circumstances
1. Renunciation of criminal purpose AND
2. Success in preventing the commission of criminal
objectives
3. 5.03(6)
e. Multiple objectives:
i. Traditional: if violate more than one statute, can be separate
conspiracies but not necessarily; if violation of one statute, even
though many objectives, only one violation
ii. MPC: conspiracy is single despite multiplicity of criminal
objectives as long as the crimes are the object of the same
agreement or continuous conspiratorial relationship
6. Parties
a. Traditional approach: bilateral if one party is guilty of conspiring, then
the other side must be too
b. Need not know the identity, or existence of every other member of the
conspiracy, nor participate in every detail or event of the conspiracy
c. Must have general awareness of the scope and objective of the enterpirse
d. Must be a community of interest among parties or reason to know of each
others interest
e. Conspirators can be guilty of every offense committed by every other
conspirator in furtherance of the unlawful agreement?
f. Wheel conspiracies
i. Must have a shared, criminal objective, not just similar or parallel
objectives between similarly situated people
ii. One person at center who connects lots of separate groups
1. These people are not guilty for everyone else (guy in the
middle is)
2. UNLESS there is a rim (each has interest in success of
other spokes)
iii. Kotteakos v. United States (1946)

1. Ds were not all part of the same single conspiracy where

Brown served as broker for 31 persons obtaining fraudulent
loans for eight or more independent groups connected to
each other only through Brown
2. No rim to the wheels spokes connecting them all to Brown
(no common goal working to achieve, only independent
interests) must have COMMUNITY OF INTEREST
3. Brown would want to be tried for one big conspiracy so
there is only one count but others would want to be tried for
separate so that the others actions are not imputed to them.
iv. Anderson v. Superior Court (Cal. App)
1. Example of a genuine wheel conspiracy
2. D was properly held guilty of conspiracy to commit
abortion even on women not referred by her because they
constituted one big conspiracy
3. All acts were in furtherance of the conspiracy because the
goal was to keep women getting abortions she wants him
to stay in business and cant provide enough people on her
own so has an interest in others sending women too
a. Special interest in others being part of conspiracy
4. Ongoing relationship with hub + common objective
(employment depended on success of braoder illegal
venture)
g. Chain conspiracies
i. Several layers of personalle dealing with a single subject matter, as
opposed to a specific person
ii. Usually involve unlawful plans that cannot succeed unless each
link successfully performs her responsibility in the arragnemnet
iii. The longer the chain the more tenuous the conspiracy
iv. United States v. Bruno
1. Only one big conspiracy to import, sell, and possess
narcotics were D and 87 others smuggled narcotics into
county, distributed through middlemen to retailers in NY
and Texas-Louisianna region and retailers distributed to
individual addicts (and no comm between importers and
any retailers or between NY and Texas retailers but
importers knew that middlemen dealt with retailers and
reatilers knew middlemen obtained their drugs from
importers)
2. Retailers were aware they had to sell to multiple retailers
even if they dont know who they are
3. Knew success depended on venture as a whole
4. Chain conspiracy different activities carried out in
succession with respect to certain subject matter
a. Each link had a stake in the larger venture

5. Could also involve spokes at the end to connect the two

retailers
a. Ignored by court
h. Hybrid
i. Chain with spokes
i. MPC:
i. Guilty of conspiracy if know that a person with whom he conspires
to commit a crime has conspired with another person or persons
to commit the same crime, whether or not he knows their
identity
ii. More accurately reflects different culpabilities
iii. US v. McDermott (2001)
1. No single conspiracy where D was unaware that his stock
recommendations to his lover were being passed to another
2. No reason to know she is passing secrets or even that he
exists and if he did, would not want him making money
3. Could be liable if:
a. Scope of trading agreement had been broader
b. Trades were part of ramifications of plan which
could have been foreseen
c. If had at least known of relationship
Self-Defense

Justification defense (morally right)

Generally affirmative defense (but sometimes burden on state)
Requirments:
Necessity (force is necessary to defend against)
o Imminent Threats
o Should use nondeadly response if that will suffice
Proportionality
o Force cannot be excessive in relation to the harm threatened
o Not permitted to use deadly force to repel what is known to be a
nondeadly attack
o CAN ALWAYS USE NON-DEADLY FORCE
Reasonable belief
o Subjective
Must have subjective (honest) belief
o Objective
Must be one that a reasonable person in the same situation
would have possessed

Deadly force = likelihood of the force causing death or serious bodily injury
o If stab intending only to wound slightly, still deadly force
o Any weapon towards body
o Minor battery does not count unless person is infirm?

o MPC:
Unjustifiable unless actor believes deadly force is immediately
necessary to protect against:
Death
Serious bodily injury
Forcible rape
Kidnapping
Traditionally self-D applies to mistaken but reasonable beliefs
United States v. Peterson
o D finds guy stealing wipers, threatens them with gun, one approaches with
wrench, he kills them. No SD b/c he provoked the encounter
o Rule self-defense:
Actual or apparent threat,
Unlawful and immediate
Use of deadly force
D believed in imminent peril of death or serious bodily harm
Response necessary to save himself
Beliefs honestly entertained, AND
Objectively reasonable in light of surrounding cirucmstances
Reasonable Person Standard
o Must have reasonable belief based on appearances
Reasonable person in actors situation
Courts generally take into account the Ds relevant knowledge
about the aggressor, phsycial attritubes of all involved, and prior
experiences upon which D could provide a reasaonble basis for a
belief that another persons intentions were to harm
BWS in most jurisdicitons can submit evidence for why belief
was reasonable
o Traditionally if unreasonable belief still guilty of murder
o People v. Goetz (NY Ct. Appeals 1986)
Rejected Ds argument that the statute required only a subjective
belief that Ds actions were reasonable
Legislative intent: added reasonable to MCP provision must be
reasonable belief taking into account actual circumstances and Ds
particular situation
Hidden issue: was it reasonable for a person in Gs situation to take
into consideration the fact that he was faced with four black males?
o MPC:
Justified in using force if believes that such force is immediately
necessary to protect against exercise of unlawful force by the other
on the present occasion
Drafted in terms of actors subjective belief in need to use
force (belief need not be reasonable) but
o When the D is reckless or negligent in regard to the
facts relating to the justifiability of his conduct, the
justification defense is unaaible to him in a

prosecution for an offense for which recklessness or

negligence sufficiences to establish culpability
o Allows Ds who unreasonably belive they are facing
deadly assault to use self-D as a defense to all
murder and manslaguther charges
Immediacy (more of a necessity and less imminent)
Deadly force = purpose to cause death

Grading problem
o Prevailing view: If unreasonable belief, then murder
Somteims mitigation to voluntary manslaguther (imperfect self-D)
malice lacking
Using deadly force when non-deadly would have sufficed
Misjudging acts
Using deadly force in response to non-deadly force
Others (less common) involuntary manslaughter
o MPC: negligent homicide

1. Battered Women
a. Elements:
i. Reasonable belief
ii. Force is necessary to defend against
iii. Imminent use of unlawful force
iv. Force used is not excessive
b. Categories:
i. Confrontational homicides: cases in which the battered woman kills
her partner during a battering incident
1. Jury instruction virtually always given
2. State v. Kelly (NJ 1984)
a. Expert testimony on Ds BWS should have been
admissible for a self-D claim where D killed her
husband with a pair of scissors during one of his attacks
b. Would have helped the jury understand why she hadnt
left her husband gives Ds story credibility
ii. Nonconfrontational homicides: while asleep or in a significant lull in
violence
1. Expert testimony hhelps explain why D subjectively believed
decdent was about to kill and demonstrate objectively
reasonable to a person suffereing from BWS
2. State v. Norman (N.C. 1989)
a. No instruction on self-D where D shot her husband
while he was asleep after 25 years of abuse, trying to
flee and being tracked down, being dragged back from
social services, etc.
b. Must have reasonably believed he was about to kill her
(imminence requirement)

c. Rejects argument that defense was immediately

necessary because death was inevitable
iii. Hired killings
c. Evidence of BWS relevant to show actor reasonably feared deadly force and
establish credibility of D (why she didnt leave)
2. Nature of the Threat: Immenent, Unlawful Deadly Force
a. Force is not imminent if person threatens harm at a later time (must be
immediate/at once)
b. Ha v. State
i. No self-D available where victim threated to kill and was likely he
would (family with reputation for violence)
ii. Inevitable harm not the same as imminent
c. Some say it should be necessity if cant defend self at a later time
d. MPC: relaxes imminence requirement
i. Self-D avialbe if actor reasonable believes use of defensive force was
immeidatley necessary on the present occasion
ii. E.g. self-defensive act of stabbing husband who said he was going to
go to the bedroom to get a gun to kill her could be immediately
necessary if she could not afford to wait until he returned with the
weapon
3. Retreat and the Initial aggressor
a. Necessity Requirement: The Special Issue of Retreat
i. Jurisdictions split on whether an innocent person must retreat when it
can be done in complete safety, but majority have no-retreat rule
ii. Stand your ground law: no duty to retreat and can meet force with
force including deadly force if reasonably believes it is necessary to
prevent death or GBH
1. Slim majority
iii. Only required for deadly force
1. Very disfavored in law should kill only if necessary
iv. In jurisdictions with duty to retreat, only required if there is a place of
complete safety to which the non-agrreser can trun AND only if
person under siege is subjectively aware of existence
v. If initial aggressor must retreat
1. If dont, imperfect self defense in some places
vi. MPC
1. May not use deadly force if know can avoid necessity of using
it with complete safety by retreating
b. The Castle Exception to the Retreat Rule
i. A non-aggressor is not ordinarily required to retreat from his dwelling
even though he knows he could do so in complete safety, before using
deadly force in self-defense
1. Sanctity of home
2. Final sanctuary from external attack
ii. Same for MPC
1. Treats workplace the same too

iii. Co-dwellers
1. Some jurisdicitons say that the assailants status as a codweller is irrelevant
a. MPC too
i. But not for coworkers
b. Implications for BWS
2. Others emphasize the shared proprerty interest of the deadly
aggressor
c. The Intitial Aggressor
i. An aggressor has no right to claim of self-defense
ii. Aggressor =
1. One whose affirmative unlawful act is reasonably calculated to
produce an affray foreboding injurious or fatal conseqeunces
a. E.g. brandishing a knife and threatening
b. Lawful aggression: cop threatening or calling someone
a jerk?
2. One who threatens unlawfully to commit a battery upon
another or who provokes a phsycial conflict by words or
actions calculated to bring about an assault
a. E.g. vicious racial epithets
b. Usually theft is not enough
c. Cant use self-D to defend criminal enterprise
3. Even if merely starts a nondeadly conflict
4. The first person to use force is not always the aggressor (e.g.
brandishing a knife is the initial aggressor)
5. Ordinarily a matter for the jury to decide
iii. To become a non-aggressor, must withdraw from conflict and
successfully communicate this fact, either expressly or impliedly to the
intended victim
iv. Deadly aggressor = person whose acts are reasonably calculated to
produce fatal consequences
1. Only way to regain right of self-D is to withdraw in good faith
from conflict and fairly communicate this fact, expressly or
impliedly to victim
v. Nondeadly aggressor
1. Some courts say when the victim of a nondeadly assault
responds with deadly force, the original aggressor immediately
regains his right of self-D
2. Others require that he retreat if available, but can resort to
deadly force if not
3. Some states say if at fault at all, cannot use self-D
vi. United States v. Peterson (DC 1973)
1. Peterson was the intial aggressor having come out of the house
with a gun pointed at decedent and issuing threats after
decedent was about to leave

2. Question of fact for jury where Ds conduct created necessity

to kill where decedent then got out of car with tire iron and D
shot him
vii. MPC
1. Use of deadly force prohibitied by person who, with the
prupose of cuasing death or serious bodily injury, provoked
the use of force against himself in the same encounter
2. If D unlawfully starts a nonlethal conflict, he does not lose his
privilege of self-D if V escalaties into lethal assault
3. Unlawful force would constitute an offense except for a
defense not amounting to a privilege to use that force (not
privileged to respond with disproportionate force)
4. Duty to retreat if initial aggressor

Necessity

Justification defense
Affirmative Defense
Threat may be against person or property?
Traditional elements:
o Situation threatening OR perhaps, a reasonable belief of imminent harm
unless a law is broken
o D is not at fault in creating the situation
Not negligent or reckless even
o Harm to be avoided by the lawbreaking > harm caused by the lawbreaking
Ds actions should be weighed against the harm reaosnably
foreseeable at the time, not the harm that actually occurs
Whether Ds value judgment was indeed correct according by the
judge or jury
o Legislature hasnt itself preempted the balancing of harms
E.g. legislature previously weighed competing value of medical
use of marijuana against values served by prohibition and rejected
the former claim
Also requires:
o Causal relationship between action and harm to be averted (D must expect,
as a reasonable person, that his action will be effective in abating the
danger that he seeks to avoid)
o No effective legal way to avert harm
Limits:
o May not apply in homicide cases
o Some jurisdictions dont allow for protection of reputation or economic
interests (only person or property) or all?
o Some states limit defense to emergencies by natural occurences

1. Lesser Evil

a. Dilemma created by some natural (non-human) force or condition causing the

actor to have to choose between violating a relatively minor offense and
suffering or allowing others to suffer substantial harm to person or property
i. Today most states allow for defense where harm is created by human
beings
1. People v. Unger (Illinois 1977)
a. D should have been allowed to present necessity
defense where he escaped a correctional facility in
order to avoid sexual assaults and a death threat
b. Loverman factors for jury assessing credibility of
necessity defense in prison cases:
i. Specific threat of death, forced sex, or GBH
ii. No time for complaint
iii. No evidence of force used by prisoner to escape
iv. Prisoner immediately reports
b. E.g. driving on suspended license to take a loved one to the hospital in a dire
emergency
c. MPC:
i. Actor must have subjective belief that violating the law is necessary to
avoid harm to himself or another,
ii. Harm to be avoided by his conduct is greater than that sought to be
avoided by the law prohibiting his conduct
iii. No legislative intent to exclude conduct in circumstances exists?
iv. Differences:
1. No imminency aspect
2. Does not automatically lose defense if is at fault for bringing
about situation,
a. but if negligent about bringing about situation that
requires choice of evils or that breaking the law is
nessary dont have a defense to crime that requires
negligence but do for defense to any greater crime
(same for recklessness)
3. Not limited to emergencies of natural forces
2. Civil Disobedience
a. Direct = protesting a particular law by breaking it or by preventing the
execution of that law in a specific instance. E.g. sit-ins
b. Indirect = violation of a law that is not the object of the protest
i. Usually not entitled to necessity defense
1. Harm not imminent
2. Protest cannot directly abate danger
3. Protestors have legal options
4. Legislatures value determination may not be overrideen
ii. United States v. Schoon (9th Cir. 1992)
1. No necessity defense where Ds obstructed activities of IRS
office to bring attention to humanitarian concerns in El
Salvador.

2. No realistic chance of changing law

3. Killing and torture
a. Homicide
i. Regina v. Dudley and Stephens
1. Necessity defense not available for Ds killing another sailor to
save their lives
2. Based on this, common law does not recognize the defense of
necessity in inteitonal homicide prosecutions
3. Harm not yet imminent
4. Boy not an aggressor (was not threatening their lives even
innocently)
5. Ds chose to kill not just a circumstance
6. Fear of abuse of rule allowing killing of innocent people
ii. Attempts to explain why people react the way they do to different
situations
1. Difference in moral quality between allowing something bad to
happen and actually making something bad happen worse to
positively act than to allow nature to run its course
a. Trouble because all cases seem to involve an act
2. Redirecting a threat rather than creating a new one
a. One thing to take something already threatening a large
number of people and make it threaten fewer
3. Principle of double effect: intending death is wrong but making
use of it to achieve something else is not
a. When can you distinguish between what a person is
doing and a side effect?
iii. MPC:
1. Preponderance of lives saved compared to those sacrificed as a
legal justification
2. Rights prevail over lives in aggression cases, but lives over
rights in bystander cases
a. Can kill greater number of people if they are
aggressors, but can kill innocent people only if saving
more lives
b. Torture
i. Common to use ticking timebomb case
ii. Challenge because do not want to justify torture in less extreme cases
iii. Assumptions:
1. Assume captured person knows where bomb is
2. Assume no way to save lives any other way
3. Assume torturing just to get info (pure motives)
4. Assumes tortured is a terrorist
iv. The more certain the individual has info, and the more likely and
greater damage to be expected, the more necessary the torture
1. Problem of not including broad, systemic harms

Duress

Excuse not that acts were good, but that D could not have been expected to do
otherwise
Person will be acquitted except of murder
o The coercing party is liable for the actual crime
Traditional Elements:
o Another person threatened to kill or grievously injure the actor or third
party unless she committed the offense
Threat must come from human being
Breaking into a house to escape a storm is necessity, not
duress
Threat of deadly force (death or serious bodily harm)
Threat must be directed at D or family member (no property)
o The actor reasonably believed that the threat was genuine
o The threat was present, imminent, and impending at the time of the
criminal act
Threat must be operating on actors will at the time of the criminal
act
o There was no reasonable escape from the threat except through
compliance with the demands of the coercer
o The act was not at fault in exposing herself to the threat
E.g. gang membership if voluntarily put self in situation where
foreseeable will be coerced, then no good for the defense
o US v. Fleming
POW in Korea treason threatened with going to caves, not an
imminent threat
Rationale
o Under the circumstances, cant fairly blame the person because the threat
was so immense they didnt have a fair chance to abide by the law
MPC
o Elements:
Compelled to commit the offense by the use of or threat of
unlawful force by the coercer upon her or another person
Erroneous but reasonable believe okay but not for reckless
or negligent mistake in a crime requiring similar culpability
Only for bodily integrity threatened, not things
A person of reasonable firmness in her situation would have been
unable to resist the coercion
Can consider facts such as size, age, strength, health
o Defense unavialbe if recklessly placed herself in situation in which it was
probable that she would be subjected to coercion
o If negligently placed herself in this situation, then defense available for all
offense except those for which negligence suffices to establish culapbilty
o No requirement of imminent threat (factor but not an element)
o May be raised in murder prosecutions

o Does not require imperiled person be D or family member

o Cannot be used for natural forces
E.g. if brakes give out, no defense for running over people to save
your life
o Allows for defense where coerced party causes D to perform a different
criinal act that the one ordered by the coercer
E.g. escaping prison to escape sexual assault
o Can apply to brainwashing cases
o Battered wife can raise defense but to be evaluated from person of
reasonable firmness (objective standard)
o State v. Toscano (NJ 1977)
D had a defense where he was threatened if he failed to assist in
fraudulently obtaining money
Defense to crime other than murder if D engaged in conduct
because coerced to do so by use of threat or unlawful force of
which a person of reasonable firmness in his situation would have
been unable to resist
Contrast between duress and necessity
o Duress human threats
Someone should still be blamed for behavior
o Necessity applies to natural forces
No one will likely be blamed for that very act
o Duress excuse (wrong choice but excused)
o Necessity right choice (not morally wrong)
Important for accomplice laibtly
o Victim
If conduct is justified, then victim has no right to resist
If merely excused, victim can certainly resist

Intoxication

Defintion: disturbance of mental or physical capacities resulting from the

introduction of any substance into the body
o Does not distinguish between alcohol, prescriptions, and illegal drugs
Can render actor temporarily insane or by long-term intoxication person may
suffer from permanent insanity
Intoxicated mistake
Voluntary Intoxication: actor is culpable fro becoming intoxicated
o Knowingly ingests a substance he knows or should know can cause him to
become intoxicated (unles its a prescribed med or he was coerced to
ingest it)
o Addiction considered voluntary
o In general, no excuse
o When Voluntary Intoxication may be exculpatory

 When it negates the mens rea for the definition of the offense
State of unconsciousness
Fixed or settled insanity from long-term intoxication
o Mens Rea
Failure of proof claim
General-Intent Offenses
Not a defense
E.g. rape
Old view: morally blameworthy course of conduct only
required mens rea was a culpable state of mind
Today: reckless conduct
o Knowledge that he will suffer temporary
impairement
People v. Rocha (Cal. 1971)
o Assault = general intent crime, even though
recklessness is insufficient and intent to injure must
be proved
o At the time when the statute was written, attempt
included 3 definitions one was awareness of
natural and probable consequences
o Courts said a reasonable person would know that it
would cause injury
Specific-Intent Offenses
Traditional rule: defense to specific-intent crimes
o E.g. assault with intent to commit rape
o Where legislature has required a particular mental
state in the definition of the crime, intoxication is
relevant if he did not form the erequired intent
Defense in approx. 21 states
Nothing commends this distinctions
Equally drunk
Equally culpable
Mind equally cloudly
People v. Hood
o Assault in this case could be classified as either
specific or general intent crime no explicit mens
rea in statute but attempt could be regarded as
specific intent
o Court concludes these terms are not helpful
should look to whether there are sensible reasons
for permitting or disallowing the defense
o Hold it is not a defense to assault because it makes
someone more likely to act out of anger, less likely
to control urge not to injure, and large proportion of
assaults are committed by drunk people
State v. Stasio (NJ 1979)

o Rejects intoxication as a defense to any crime

whatsoever, except murder mitigate from first
degree to second degree
o Public safety concerns
o Bizarre results of distinguishing between specific
and general intent crimes
E.g. assault with intent to commit rape
(defense) v. rape (no defense)
Arguments against voluntary intoxication defense
Intoxicated persons who are acquitted (unlike insane) are
returned to the streets
A lot of people commit crimes when drunk
Montana v. Aglehoff
o Statute enacted that said voluntary intoxication was
no defense to any crime (would not permit defense
to be raised for deliberate homicide)
o Supreme Court says denying evidence is not a
violation of due process not so rooted in tradition
since most states dont allow it and it didnt used to
be a defense
o Scalia:
A number of evidence rules keep evidence
out even if its relevant
Deter people from getting drunk or from
being irresponsible when drunk
Control people incapable of controlling
themselves when intoxicated
Morally blameworthy for impairing own
function should be responsible for
consequences
Problem: allow to exclude kinds of evidence
helpful just because not traditional
o Ginsburg:
Intoxication substittues for purpose or
knowing so evidence of it is not needed to
disprove prupose/knowing
Problem: Montana court said they are not
redefining homicide, and Ginsburg did it
anyway
o Important example of where it seems like
intoxication defense should apply and it doesnt
Intoxication and Homicide
For first-degree murder (willful, deliberate, premediated)
almost all states allow evidence of intoxication to show his
mental faculties were clouded by intoxicatnts, and therefore

he did not premediate and deliberate the killing reduce

to second-degree murder
o Recklessly became insensible depraved heart
murder
Felony-murder
o If felony is a specific intent crime, and voluntary
intoxication is a defense, then there should be no
robbery not guilty of felony murder
Voluntary Act
Although unconsciousness ordinarily precludes criminal
liability, it is not a defense if the condition was itself
brought on by voluntary consumption of alcohol or drugs
May be a defense if he says he did not physically
accomplish the act at all
Insanity
Common law does not recognize temporary insanity
defense for voluntary intoxication
Fixed Insanity
o General (but not universal) that can present
traditional insanity defense
o At some point a persons voluntary decisions
become morally remote
Involuntary Intoxication
o Involunary = actor is not to blame for becoming intoxicated
o Coerced to ingest
o Innocent mistake fraudulent inducement
o Unexpected intoxication from prescribed medication didnt know or had
no reason to know that meds would have an intoxicating effect
Unless purposefully takes more than prescribed
o Pathological intoxication grossly excessive in degree to which the actor
does not know he is susceptible
Often the result of pre-disposigin mental or phsycial condtion, e.g.
epilepsy, metabolic disturbance
o Defense wherever voluntary intoxication is
o Seems it should be a defense to general-intent crimes (unless strict
liability)
o Temproary insantity excuse
MPC
o No disitinguishing between general intent and specific intent
o Not guilty if lacked state of mind required for element of the crime
E.g. rape if he did not know he was having intercourse or that she
was not consenting
o Exception
Recklessness if unaware of risk because of knowingly introduced
intoxication, unawareness is immaterial
o Voluntary Act

Unconsciousness from voluntary intoxication is a defense, unless

he drank with the requisite culpability as to the actual result that
ensued
o Affirmative Defense
Pathological Intoxication that was not self-induced (not introduced
knowingly)
Hyper-sensitive to medication youre proscribed
Insanity
Intoxciation does not in itself constitute a mental disease
Only if by long term conduct, caused mental disease
Insanity

Competency to stand trial

o Incompetent if:
Lacks the capacity to consult with attorney with a reasonable
degree of rational understanding, OR
Lacks a rational as well as factual understanding of the
proceedings against her
Prosecution has burden of proving by clear and convincing
evidence
NG by reason of insanity
o Can immediately institutionalize w/o having to prove (why you dont see a
lot of insanity defenses for minor crimes)
Majority of states put burden of persuasion on D
About 5 states have abolished
Rationale
o Cannot deter a person who does not know what they are doing or cannot
control conduct
BUT ignores the fact that if you punish insane people, others are
deterred from faking
o No rehabilitation in prison
o Idea of free will
o Retributivism: Dont blame crazy people for their wrongdoing
Improper and unfair to punish someone who is not responsible for
their own behavior
o NOT that it negates the mens rea (even though sometimes it does)
Difficulty of explaining why there is an insanity defense
Should be a proper relationship between the mental disturbance and the crime
actually committed
o E.g. Stress case even though he was quite possibly insane, he still killed
with premeditation, deliberation, and intent; knew he was violating a law
because he did it for publicity
Terms
o Mental disease/illness/disorder = mental health terms
Clinically significant behavioral or psychological syndrome

Symptom or cluster of symptoms resulting in distress, disability,

etc. = mental disorder
o Insanity = legal term
Tests
o MNaghten Rule
Genearlly excepted standard
17 states apply entire standard
one only the first prong
10 only the second prong
States split among who has the final burden of proof
Narrow, so a few courts have coupled with irrestiable impulse
test
Rule:
Laboring under defect of reason from disease of mind (that
D must prove) so that:
o She did not know the nature and quality of the act
that she was doing, or
o If she did know it, she did not know that what she
was doing was wrong
Know
Formal cognitive knowledge: if she can desrbie what she is
doing and can acknowledge the forbidden nature of her
conduct
Affective knowledge: only if actor can evaluate conduct in
terms of its impact on others and appreciate the total seting
in which she acts
wrong
Legal: knew it was something he ought not to do and was
contrary to the law of the land
o Does not require irrestible impulse
Moral: whether she knowingly violated societal standards
of morality
o Believing morally ordained from God = legally
insane
Criticisms:
Does not recognize degrees of incapacity
Tight shackles on expert testimony
Disregards mental illness that affects volition (focus on
cognitive test)
Too narrow
So lots of states added third prong and dropped first:
As a result of mental defect, D
o Didnt know what he was doing was wrong, OR
o Lacked the capacity to conform to the law
(used as basis for MPC test)

United States v. Lyons (5th Cir. 1984)

Revert from MPC to version of MNaghten because its
impossible to tell if a person could have resisted an impulse
to disobey the law or simply chose not to (get rid of
volitional and keep cognitive)
New rule: a person is not responsible for criminal conduct
on the grounds of insanity only if at the time of that
conduct, as a result of mental disesase or defect, he is
unable to appreciate the wrongfulness of that conduct
Weird: things generally irrelevant to an excuse defense
(appreciating wrongfulness) are all the court wants to
consider and instead things generally relevant (inability to
resist commission of crime e.g. duress)
Other problem: courts say we cant determine persons
volitional capacity but fed. Has statute for confining
sexually violent predators who cannot control behavior but
not those that can
o Irresistable impulse (control) test
Insane if:
She acted from an irrestible and uncontrollable impulse
Lost the power to choose between right and wrong and to
avoid doing the act in question because her free agency was
destroyed, or
Ds will has been nonvoluntarily so completely destroyed
that her actions are not subject to it, but are beyond her
control
Criticism:
Psychiatrists do not believe they possess sufficient accurate
scientific bases for measuring a persons incapacity for
self-control or for calibrating the impairment of that
capacity
How to determine whether someone chose not to conform
or COULD not conform to law
o Product standard (Durham)
Whether D was suffering from a mental disease or defect at the
time of the offense, AND
Whether the disease caused the criminal conduct (in a but-for
sense)
Problems:
Impossible burden for the govt to show that D would have
committed the crime even if he wasnt insane
Failed to define mental disesase or defect
Too much emphasis on expert testimony (suppressing
jurys moral judgment)
Allows people to get off who know what they are doing
and that it was wrong

o MPC (ALI test)

Adopted in majority of states (14)
Not guilty if at the time of the conduct,
As a result of mental disease or defect,
Lack the substantial capacity to:
o Appreciate the criminality (or moral wrongfulness)
of her conduct, or
o To conform her conduct to the requirement of the
law
Does not require purely formal knowledge of MNaghten test
asks whether the D was capable of truly understanding the
consequences of his conduct
Avoids the word impulse
Does not require total incapacity (allows for spectrum)
Disjunctive test OR
o Federal statutory definitno
As a result of severe mental disease or defect,
Actor unable to appreciate:
The nature and quality of her conduct, or
The wrongfulness of her conduct
Pretty narrow insanity defense
Problems for all:
o What is meant by mental disease or defect?
One thing settled: insanity manifested soley by repeated
commission of criminal acts does not equal disease
o Legal or moral wrong?
Split in America
Legal knew he was acting contrary to the law of the land
Moral general societal standards of morals (not personal
conception of D)

Diminished Capacity
Definitions:
o Diminished capacity (Failure of proof) negates the mens rea element of
the crime
o Diminished responsibility (affirmative defense) does not negate any
element of the crime but mitigates Ds guilt
Only admissible if relevant to negate mens rea of crime
MPC:
o Defense to All Crimes (no concept of specific intent)
o Approx 15 states
o Effect is to acquit of crime or reduce to lesser offense
Limited Use Approach
o One approach: Only relevant for murder to mitigate degree
o More common: distinguish between specific and general intent offenses

Allow for evidence only to negate specific intent but not allowed
for general intent crimes
Almost always functions as partial defense (will be convicted of
lesser crime)
United States v. Brawner (DC Circuit 1972)
Ds evidence was relevant to negate the mental states
required by statute for first degree murder (premeditation,
deliberation) because it showed he was not capable of the
coolness and calmness of thinking over his actions
Rationale:
Dont want to allow for out-right acquittal, usually guilty of
lesser offense; insanity institutionalized

No-Defense
o Evidence only for insanity but not mens rea
o Anomoly: allow intoxication for same purpose but not abnormal mental
condition
o Clark v. Arizona (Supreme Court 2006)
Said Arizona not allowing expert testimony evidence for proof of
diminished capacity was not a violation of due process
Arizona prohibits expert testimony for mental disease evidence or
capacity evidence except for insanity defense (but allows for
observational evidence)
Grounds for concluding not a violation of due process:
Controversial character of some categories of mental
disease (evidence unreliable)
Misleading jury (jurors apt to draw inferences that go
beyond psychiatric knowledge)
Danger of according greater certainty to capacity evidence
than experts claim for it
Criticism:
We allow for psych testimony in lots of other uncertain
areas
Juries decide all kinds of questions they are unqualified to
deicde no evidence to say they are particularly misled in
these instances
Wouldnt the objections on capacity apply in insanity
defenses?
Maybe they are really worried about acquittal, but that isnt
a good argument because if the evidence shows he didnt
commit the crime then he shouldnt be confined
Contrast insanity:
o Calls for more tricky evalution of condition to assess where D was unable
to appreciate the wrongfulness of his conduct; here were just asking if he
harbored the specific intent to kill

o On the other hand might be more difficult distinction because we are

asking to dintinguish among subtle categories of sane people versus insane
or not insane

MPC
Person does not necessarily lose the defense if he was at fault in creating the
necessitous situation
Questions:
Conspiracy
-general v. specific
Initial aggressor
Going after the first
-reignited confrontation
necessity
-situations where threat isnt about to happen, but to defend need to use force now
chained to bed not the defense of necessity, which is choice of evils
necessity doesnt apply to killing a person cant make the argument because of
arithmetic: one against one, not choosing lesser evil
Where does Stress case fall in?
What is so narrow about the fed insanity statute?